G.R. No.

152809 August 3, 2006

MERCEDES MORALIDAD, Petitioner,
vs.
SPS. DIOSDADO PERNES and ARLENE PERNES, Respondents.

DECISION

GARCIA, J.:

Under consideration is this petition for review on certiorari under Rule 45 of the Rules of Court to
nullify and set aside the following issuances of the Court of Appeals (CA) in CA-G.R. SP No. 61610,
to wit:

1. Decision dated September 27, 2001, 1 affirming an earlier decision of the Regional Trial Court
(RTC) of Davao City which reversed that of the Municipal Trial Court in Cities (MTCC), Davao City,
Branch 1, in an action for unlawful detainer thereat commenced by the petitioner against the herein
respondents; and

2. Resolution dated February 28, 2002, 2 denying petitioner’s motion for reconsideration.

At the heart of this controversy is a parcel of land located in Davao City and registered in the name
of petitioner Mercedes Moralidad under Transfer Certificate of Title (TCT) No. T-123125 of the
Registry of Deeds of Davao City.

In her younger days, petitioner taught in Davao City, Quezon City and Manila. While teaching in
Manila, she had the good fortune of furthering her studies at the University of Pennsylvania, U.S.A.
While schooling, she was offered to teach at the Philadelphia Catholic Archdiocese, which she did
for seven (7) years. Thereafter, she worked at the Mental Health Department of said University for
the next seventeen (17) years.

During those years, she would come home to the Philippines to spend her two-month summer
vacation in her hometown in Davao City. Being single, she would usually stay in Mandug, Davao
City, in the house of her niece, respondent Arlene Pernes, a daughter of her younger sister, Rosario.

Back in the U.S.A. sometime in 1986, she received news from Arlene that Mandug at the outskirts of
Davao City was infested by NPA rebels and many women and children were victims of crossfire
between government troops and the insurgents. Shocked and saddened about this development,
she immediately sent money to Araceli, Arlene’s older sister, with instructions to look for a lot in
Davao City where Arlene and her family could transfer and settle down. This was why she bought
the parcel of land covered by TCT No. T-123125.

Petitioner acquired the lot property initially for the purpose of letting Arlene move from Mandug to
Davao City proper but later she wanted the property to be also available to any of her kins wishing to
live and settle in Davao City. Petitioner made known this intention in a document she executed on
July 21, 1986. 3 The document reads:

I, MERCEDES VIÑA MORALIDAD, of legal age, single, having been born on the 29th day of
January, 1923, now actually residing at 8021 Lindbergh Boulevard, Philadelphia, Pennsylvania,
U.S.A., wishes to convey my honest intention regarding my properties situated at Palm Village
Subdivision, Bajada, Davao City, 9501, … and hereby declare:
1. That it is my desire that Mr. and Mrs. Diosdado M. Pernes may build their house therein and stay
as long as they like;

2. That anybody of my kins who wishes to stay on the aforementioned real property should maintain
an atmosphere of cooperation, live in harmony and must avoid bickering with one another;

3. That anyone of my kins may enjoy the privilege to stay therein and may avail the use thereof.
Provided, however, that the same is not inimical to the purpose thereof;

4. That anyone of my kins who cannot conform with the wishes of the undersigned may exercise the
freedom to look for his own;

5. That any proceeds or income derived from the aforementioned properties shall be allotted to my
nearest kins who have less in life in greater percentage and lesser percentage to those who are
better of in standing.

xxx xxx xxx

Following her retirement in 1993, petitioner came back to the Philippines to stay with the
respondents’ on the house they build on the subject property. In the course of time, their relations
turned sour because members of the Pernes family were impervious to her suggestions and
attempts to change certain practices concerning matters of health and sanitation within their
compound. For instance, Arlene’s eldest son, Myco Pernes, then a fourth year veterinary medicine
student, would answer petitioner back with clenched fist and at one time hurled profanities when she
corrected him. Later, Arlene herself followed suit. Petitioner brought the matter to the local barangay
lupon where she lodged a complaint for slander, harassment, threat and defamation against the
Pernes Family. Deciding for petitioner, the lupon apparently ordered the Pernes family to vacate
petitioner’s property but not after they are reimbursed for the value of the house they built thereon.
Unfortunately, the parties could not agree on the amount, thus prolonging the impasse between
them.

Other ugly incidents interspersed with violent confrontations meanwhile transpired, with the
petitioner narrating that, at one occasion in July 1998, she sustained cuts and wounds when Arlene
pulled her hair, hit her on the face, neck and back, while her husband Diosdado held her, twisting
her arms in the process.

Relations having deteriorated from worse to worst, petitioner, on July 29, 1998, lodged a formal
complaint before the Regional Office of the Ombudsman for Mindanao, charging the respondent
spouses, who were both government employees, with conduct unbecoming of public servants. This
administrative case, however, did not prosper.

Then, on August 3, 1998, petitioner filed with the MTCC of Davao City an unlawful detainer suit
against the respondent spouses. Petitioner alleged that she is the registered owner of the land on
which the respondents built their house; that through her counsel, she sent the respondent spouses
a letter demanding them to vacate the premises and to pay rentals therefor, which the respondents
refused to heed.

In their defense, the respondents alleged having entered the property in question, building their
house thereon and maintaining the same as their residence with petitioner’s full knowledge and
express consent. To prove their point, they invited attention to her written declaration of July 21,
1986, supra, wherein she expressly signified her desire for the spouses to build their house on her
property and stay thereat for as long as they like.

The MTCC, resolving the ejectment suit in petitioner’s favor, declared that the respondent spouses,
although builders in good faith vis-à-vis the house they built on her property, cannot invoke their
bona fides as a valid excuse for not complying with the demand to vacate. To the MTCC,
respondents’ continued possession of the premises turned unlawful upon their receipt of the demand
to vacate, such possession being merely at petitioner’s tolerance, and sans any rental. Accordingly,
in its decision dated November 17, 1999, 4 the MTCC rendered judgment for the petitioner, as
plaintiff therein, to wit:

WHEREFORE, judgment is hereby rendered in favor of herein plaintiff and against the defendants,
as follows:

a) Directing the defendants, their agents and other persons acting on their behalf to vacate the
premises and to yield peaceful possession thereof to plaintiff;

b) Ordering defendants to pay P2,000.00 a month from the filing of this complaint until they vacate
premises;

c) Sentencing defendants to pay the sum of P120,000.00 5 as attorney’s fees and to pay the cost of
suit.

Defendants counterclaim are hereby dismissed except with respect to the claim for reimbursement
of necessary and useful expenses which should be litigated in an ordinary civil actions. (sic)

Dissatisfied, the respondent spouses appealed to the RTC of Davao City.

In the meantime, petitioner filed a Motion for Execution Pending Appeal. The motion was initially
granted by the RTC in its Order of February 29, 2000, but the Order was later withdrawn and
vacated by its subsequent Order dated May 9, 2000 6 on the ground that immediate execution of the
appealed decision was not the prudent course of action to take, considering that the house the
respondents constructed on the subject property might even be more valuable than the land site.

Eventually, in a decision 7 dated September 30, 2000, the RTC reversed that of the MTCC, holding
that respondents’ possession of the property in question was not, as ruled by the latter court, by
mere tolerance of the petitioner but rather by her express consent. It further ruled that Article 1678 of
the Civil Code on reimbursement of improvements introduced is inapplicable since said provision
contemplates of a lessor-lessee arrangement, which was not the factual milieu obtaining in the case.
Instead, the RTC ruled that what governed the parties’ relationship are Articles 448 and 546 of the
Civil Code, explaining thus:

Since the defendants-appellees [respondents] are admittedly possessors of the property by

permission from plaintiff [petitioner], and builders in good faith, they have the right to retain
possession of the property subject of this case until they have been reimbursed the cost of the
improvements they have introduced on the property.

Indeed, this is a substantive right given to the defendants by law, and this right is superior to the
procedural right to [sic] plaintiff to immediately ask for their removal by a writ of execution by virtue of
a decision which as we have shown is erroneous, and therefore invalid. (Words in brackets
supplied),
and accordingly dismissed petitioner’s appeal, as follows:

WHEREFORE, in view of the foregoing, the Decision appealed from is REVERSED and declared
invalid. Consequently, the motion for execution pending appeal is likewise denied.

Counter-claims of moral and exemplary damages claimed by defendants are likewise dismissed.
However, attorney’s fees in the amount of fifteen thousand pesos is hereby awarded in favor of
defendants-appellants, and against plaintiffs.

SO ORDERED. 8

Therefrom, petitioner went to the CA in CA-G.R. SP No. 61610.

On September 27, 2001, the CA, while conceding the applicability of Articles 448 and 546 of the Civil
Code to the case, ruled that it is still premature to apply the same considering that the issue of
whether respondents’ right to possess a portion of petitioner’s land had already expired or was
already terminated was not yet resolved. To the CA, the unlawful detainer suit presupposes the
cessation of respondents’ right to possess. The CA further ruled that what governs the rights of the
parties is the law on usufruct but petitioner failed to establish that respondents’ right to possess had
already ceased. On this premise, the CA concluded that the ejectment suit instituted by the petitioner
was premature. The appellate court thus affirmed the appealed RTC decision, disposing:

WHEREFORE, premises considered, the instant petition for review is hereby denied for lack of
merit. Accordingly, the petitioner’s complaint for Unlawful Detainer is DISMISSED.

SO ORDERED.

With the CA’s denial of her motion for reconsideration in its Resolution of February 28, 2002,
petitioner is now before this Court raising the following issues:

I. WHETHER OR NOT THE COURT OF APPEALS ERRED IN DISMISSING THE UNLAWFUL

DETAINER CASE FOR BEING PREMATURE WHICH DECISION IS NOT IN ACCORDANCE WITH
LAW AND JURISPRUDENCE.

II. WHETHER OR NOT THE COURT OF APPEALS ERRED IN APPLYING ARTICLES 448 AND
546 AND THE PROVISIONS OF THE CODE ON USUFRUCT INSTEAD OF ARTICLE 1678 OF
THE CIVIL CODE.

The Court rules for the petitioner.

The Court is inclined to agree with the CA that what was constituted between the parties herein is
one of usufruct over a piece of land, with the petitioner being the owner of the property upon whom
the naked title thereto remained and the respondents being two (2) among other unnamed
usufructuaries who were simply referred to as petitioner’s kin. The Court, however, cannot go along
with the CA’s holding that the action for unlawful detainer must be dismissed on ground of
prematurity.

Usufruct is defined under Article 562 of the Civil Code in the following wise:

ART. 562. 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.
Usufruct, in essence, is nothing else but simply allowing one to enjoy another’s property. 9 It is also
defined as the right to enjoy the property of another temporarily, including both the jus utendi and the
jus fruendi, 10 with the owner retaining the jus disponendi or the power to alienate the same. 11

It is undisputed that petitioner, in a document dated July 21, 1986, supra, made known her intention
to give respondents and her other kins the right to use and to enjoy the fruits of her property. There
can also be no quibbling about the respondents being given the right "to build their own house" on
the property and to stay thereat "as long as they like." Paragraph #5 of the same document
earmarks "proceeds or income derived from the aforementioned properties" for the petitioner’s
"nearest kins who have less in life in greater percentage and lesser percentage to those who are
better of (sic) in standing." The established facts undoubtedly gave respondents not only the right to
use the property but also granted them, among the petitioner’s other kins, the right to enjoy the fruits
thereof. We have no quarrel, therefore, with the CA’s ruling that usufruct was constituted between
petitioner and respondents. It is thus pointless to discuss why there was no lease contract between
the parties.

However, determinative of the outcome of the ejectment case is the resolution of the next issue, i.e.,
whether the existing usufruct may be deemed to have been extinguished or terminated. If the
question is resolved in the affirmative, then the respondents’ right to possession, proceeding as it did
from their right of usufruct, likewise ceased. In that case, petitioner’s action for ejectment in the
unlawful detainer case could proceed and should prosper.

The CA disposed of this issue in this wise:

xxx Section 1, Rule 70 of the 1997 Rules of Civil Procedure, as amended, provides xxx

xxx xxx xxx

From the foregoing provision, it becomes apparent that for an action for unlawful detainer to prosper,
the plaintiff [petitioner] needs to prove that defendants’ [respondents’] right to possess already
expired and terminated. Now, has respondents’ right to possess the subject portion of petitioner’s
property expired or terminated? Let us therefore examine respondents’ basis for occupying the
same.

It is undisputed that petitioner expressly authorized respondents o occupy portion of her property on
which their house may be built. Thus – "it is my desire that Mr. and Mrs. Diosdado M. Pernes may
build their house therein and stay as long as they like." From this statement, it seems that petitioner
had given the respondents the usufructuary rights over the portion that may be occupied by the
house that the latter would build, the duration of which being dependent on how long respondents
would like to occupy the property. While petitioner had already demanded from the respondents the
surrender of the premises, this Court is of the opinion that the usufructuary rights of respondents had
not been terminated by the said demand considering the clear statement of petitioner that she is
allowing respondents to occupy portion of her land as long as the latter want to. Considering that
respondents still want to occupy the premises, petitioner clearly cannot eject respondents. 12

We disagree with the CA’s conclusion of law on the matter. The term or period of the usufruct
originally specified provides only one of the bases for the right of a usufructuary to hold and retain
possession of the thing given in usufruct. There are other modes or instances whereby the usufruct
shall be considered terminated or extinguished. For sure, the Civil Code enumerates such other
modes of extinguishment:

ART. 603. Usufruct is extinguished:

(1) By the death of the usufructuary, unless a contrary intention clearly appears;

(2) By expiration of the period for which it was constituted, or by the fulfillment of any resolutory
condition provided in the title creating the usufruct;

(3) By merger of the usufruct and ownership in the same person;

(4) By renunciation of the usufructuary;

(5) By the total loss of the thing in usufruct;

(6) By the termination of the right of the person constituting the usufruct;

(7) By prescription. (Emphasis supplied.)

The document executed by the petitioner dated July 21, 1986 constitutes the title creating, and sets
forth the conditions of, the usufruct. Paragraph #3 thereof states "[T]hat anyone of my kins may
enjoy the privilege to stay therein and may avail the use thereof. Provided, however, that the same is
not inimical to the purpose thereof" (Emphasis supplied). What may be inimical to the purpose
constituting the usufruct may be gleaned from the preceding paragraph wherein petitioner made it
abundantly clear "that anybody of my kins who wishes to stay on the aforementioned property
should maintain an atmosphere of cooperation, live in harmony and must avoid bickering with one
another." That the maintenance of a peaceful and harmonious relations between and among kin
constitutes an indispensable condition for the continuance of the usufruct is clearly deduced from the
succeeding Paragraph #4 where petitioner stated "[T]hat anyone of my kins who cannot conform
with the wishes of the undersigned may exercise the freedom to look for his own." In fine, the
occurrence of any of the following: the loss of the atmosphere of cooperation, the bickering or the
cessation of harmonious relationship between/among kin constitutes a resolutory condition which, by
express wish of the petitioner, extinguishes the usufruct.

From the pleadings submitted by the parties, it is indubitable that there were indeed facts and
circumstances whereby the subject usufruct may be deemed terminated or extinguished by the
occurrence of the resolutory conditions provided for in the title creating the usufruct, namely, the
document adverted to which the petitioner executed on July 21, 1986.

As aptly pointed out by the petitioner in her Memorandum, respondents’ own evidence before the
MTCC indicated that the relations between the parties "have deteriorated to almost an irretrievable
level." 13 There is no doubt then that what impelled petitioner to file complaints before the local
barangay lupon, the Office of the Ombudsman for Mindanao, and this instant complaint for unlawful
detainer before the MTCC is that she could not live peacefully and harmoniously with the Pernes
family and vice versa.

Thus, the Court rules that the continuing animosity between the petitioner and the Pernes family and
the violence and humiliation she was made to endure, despite her advanced age and frail condition,
are enough factual bases to consider the usufruct as having been terminated.

To reiterate, the relationship between the petitioner and respondents respecting the property in
question is one of owner and usufructuary. Accordingly, respondents’ claim for reimbursement of the
improvements they introduced on the property during the effectivity of the usufruct should be
governed by applicable statutory provisions and principles on usufruct. In this regard, we cite with
approval what Justice Edgardo Paras wrote on the matter:
If the builder is a usufructuary, his rights will be governed by Arts. 579 and 580. In case like this, the
terms of the contract and the pertinent provisions of law should govern (3 Manresa 215-216; se also
Montinola vs. Bantug, 71 Phil. 449). 14 (Emphasis ours.)

By express provision of law, respondents, as usufructuary, do not have the right to reimbursement
for the improvements they may have introduced on the property. We quote Articles 579 and 580 of
the Civil Code:

Art. 579. The usufructuary may make on the property held in usufruct such useful improvements or
expenses for mere pleasure as he may deem proper, provided he does not alter its form or
substance; but he shall have no right to be indemnified therefor. He may, however, remove such
improvements, should it be possible to do so without damage to the property. (Emphasis supplied.)

Art. 580. The usufructuary may set off the improvements he may have made on the property against
any damage to the same.

Given the foregoing perspective, respondents will have to be ordered to vacate the premises without
any right of reimbursement. If the rule on reimbursement or indemnity were otherwise, then the
usufructuary might, as an author pointed out, improve the owner out of his property. 15 The
respondents may, however, remove or destroy the improvements they may have introduced thereon
without damaging the petitioner’s property.

Out of the generosity of her heart, the petitioner has allowed the respondent spouses to use and
enjoy the fruits of her property for quite a long period of time. They opted, however, to repay a noble
gesture with unkindness. At the end of the day, therefore, they really cannot begrudge their aunt for
putting an end to their right of usufruct. The disposition herein arrived is not only legal and called for
by the law and facts of the case. It is also right.

WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the CA are
REVERSED and SET ASIDE. Accordingly, the decision of the MTCC is REINSTATED with
MODIFICATION that all of respondents’ counterclaims are dismissed, including their claims for
reimbursement of useful and necessary expenses.

No pronouncement as to costs.

SO ORDERED.

G.R. No. L-123              December 12, 1945

JOSEFA FABIE, petitioner,
vs.
JOSE GUTIERREZ DAVID, Judge of First Instance of Manila, NGO BOO SOO and JUAN
GREY, respondents.

Sancho Onocencio for petitioner.

Serverino B. Orlina for respondent Ngo Soo.
No appearance for other respondents.
OZAETA, J.:

The petitioner Josefa Fabie is the usufructuary of the income of certain houses located at 372-376
Santo Cristo, Binondo, and 950-956 Ongpin, Santa Cruz, Manila, under the ninth clause of the will of
the deceased Rosario Fabie y Grey, which textually reads as follows:

NOVENO. — Lego a mi ahijada menor de edad, Maria Josefa de la Paz Fabie, en usufructo
vitalicio las rentas de las fincas situadas en la Calle Santo Cristo Numeros 372 al 376 del
Disrito de Binondo, de esta Ciudad de Manila, descrita en el Certificado Original de Titulo
No. 3824; y en la Calle Ongpin, Numeros 950 al 956 del Distrito de Santa Cruz, Manila
descrita en el Certificado Original de Titulo No. 5030, expedidos por el Registrador de Titulos
de Manila, y prohibo enajene, hipoteque, permute o transfiera de algun modo mientras que
ella sea menor de edad. Nombro a Serafin Fabie Macario, mi primo por linea paterna tutor
de la persona y bienes de mi ahijada menor, Maria Josefa de la Paz Fabie.

The owner of Santo Cristo property abovementioned is the respondent Juan Grey, while those of the
Ongpin property are other person not concern herein. Previous to September 1944 litigation arose
between Josefa Fabie as plaintiff and Juan Grey as defendant and the owner of the Ongpin property
as intervenors, involving the administration of the houses mentioned in clause 9 of the will above
quoted (civil case No. 1659 of the Court of First Instance of Manila). That suit was decided by the
court on September 2, 1944, upon a stipulation in writing submitted by the parties to and approved
by the court. The pertinent portions of said stipulation read as follows:

(4) Heretofore, the rent of said properties have been collected at times by the respective
owners of the properties, at other times by the usufructuary, and lastly by the defendant Juan
Grey as agent under a written agreement dated March 31, 1942, between the owners of both
properties and the usufructuary.

(5) When the rents were collected by the owners, the net amounts thereof were duly paid to
the usufructuary after the expenses for real estate taxes, repairs and insurance premiums,
including the documentary stamps, on the properties and the expenses of collecting the
rents had been deducted, and certain amount set aside as a reserve for contingent liabilities.
When the rents were collected by the usufructuary, she herself paid the expenses aforesaid.
When the rents are collected by the defendant Juan Grey under the agreement of March 31,
1942, the net amounts thereof were duly paid to the usufructuary, after deducting and setting
aside the items aforesaid, monthly, until the month of October 1943, when the usufructuary
refused to continue with the agreement of March 31, 1942.

x x x           x x x          x x x

II. The parties hereto jointly petition the Court to render judgment adopting the foregoing as
finding of facts and disposing that:

(8) Beginning with the month of September 1944, the usufructuary shall collect all the rents
of the both the Sto. Cristo and the Ongpin properties.

(9) The usufructuary shall, at her own cost and expense, pay all the real estate taxes, special
assessments, and insurance premiums, including the documentary stamps, and make all the
 necessary repairs on each of the properties, promptly when due or, in the case of repairs,
when the necessary, giving immediate, written notice to the owner or owners of the property
concerned after making such payment or repairs. In case of default on the part of the
usufructuary, the respective owners of the properties shall have the right to make the
necessary payment, including penalties and interest, if any, on the taxes and special
assessments, and the repairs and in that event the owner or owners shall entitled to collect
all subsequent rents of the property concerned until the amount paid by him or them and the
expenses of collection are fully covered thereby, after which the usufructuary shall again
collect the rents in accordance herewith.

(10) The foregoing shall be in effect during the term of the usufruct and shall be binding on
the successors and assigns of each of the parties.

(11) Nothing herein shall be understood as affecting any right which the respective owners of
the properties have or may have as such and which is not specifically the subject of this
stipulation.

In June 1945 Josefa Fabie commenced an action of unlawful detainer against the herein respondent
Ngo Boo Soo (who says that his correct name is Ngo Soo), alleging in her amended complaint that
the defendant is occupying the premises located at 372-376 Santo Cristo on a month-to month rental
payable in advance not latter than the 5th of each month; that she is the administratrix and
usufructuary of said premises; "that the defendant offered to pay P300 monthly rent payable in
advance not later than the 5th of every month, beginning the month of April 1945, for the said of
premises including the one door which said defendant, without plaintiff's consent and contrary to
their agreement, had subleased to another Chinese, but plaintiff refused, based on the fact that the
herein plaintiff very badly needs the said house to live in, as her house was burned by the Japanese
on the occasion of the entry of the American liberators in the City and which was located then at No.
38 Flores, Dominga, Pasay; that defendant was duly notified on March 24 and April 14, 1945, to
leave the said premises, but he refused"; and she prayed for judgment of eviction and for unpaid
rentals.

The defendant answered alleging that he was and since 1908 had been a tenant of the premises in
question, which he was using and had always used principally as a store and secondarily for living
quarters; that he was renting it from its owner and administrator Juan Grey; "that plaintiff is merely
the usufructuary of the income therefrom, and by agreement between her and said owner, which is
embodied in a final judgment of the Court of First Instance of Manila, her only right as usufructuary
of the income is to receive the whole of such income; that she has no right or authority to eject
tenants, such right being in the owner and administrator of the house, the aforesaid Juan Grey, who
has heretofore petitioned this Court for permission to intervene in this action; that plaintiff herein has
never had possession of said property; that defendant's lease contract with the owner of the house is
for 5-year period, with renewal option at the end of each period, and that his present lease due to
expire on December 31, 1945 . . .; that on June 1, 1945, defendant made a written offer to plaintiff to
compromise and settle the question of the amount of rent to be paid by defendant . . . but said
plaintiff rejected the same for no valid reason whatever and instituted the present action; that the
reason plaintiff desires to eject defendant from the property is that she wishes to lease the same to
other persons for a higher rent, ignoring the fact that as usufructuary of the income of the property
she has no right to lease the property; that the defendant has subleased no part of the house to any
person whomsoever.

Juan Grey intervened in the unlawful detainer suit, alleging in his complaint in intervention that he is
the sole and absolute owner of the premises in question; that the plaintiff Josefa Fabie is the
usufructuary of the income of said premises; by virtue of a contract between him and the intervenor
which will expire on December 31, 1945, with the option to renew it for another period of five years
from and after said date; that under the agreement between the intervenor and plaintiff Josefa Fabie
in civil case No. 1659 of the Court of First Instance of Manila, which was approved by the court and
incorporated in its decision of September 2, 1944, the only right recognized in favor of Josefa Fabie
as usufructuary of the income of said premises is to receive the rents therefrom when due; and that
as usufructuary she has no right nor authority to administer the said premises nor to lease them nor
to evict tenants, which right and authority are vested in the intervenor as owner of the premises.

The municipal court (Judge Mariano Nable presiding) found that under paragraph 9 of the stipulation
incorporated in the decision of the Court First Instance of Manila in civil; case No. 1659, the plaintiff
usufructuary is the administratrix of the premises in question, and that the plaintiff had proved her
cause. Judgment was accordingly rendered ordering the defendant Ngo Soo to vacate the premises
and to pay the rents at the rate of P137.50 a month beginning April 1, 1945. The complaint in
intervention was dismissed.

Upon appeal to the Court of First Instance of Manila the latter (thru Judge Arsenio P. Dizon)
dismissed the case for the following reason: "The main issue *** is not a mere question of
possession but precisely who is entitled to administer the property subject matter of this case and
who should be the tenant, and the conditions of the lease. These issues were beyond the jurisdiction
of the municipal court. This being case, this Court, as appellate court, is likewise without jurisdiction
to take cognizance of the present case." A motion for reconsideration filed by the plaintiff was denied
by Judge Jose Gutierrez David, who sustained the opinion of Judge Dizon. lawphi1 .net

The present original action was instituted in this Court by Josefa Fabie to annul the order of the
dismissal and to require to the Court of First Instance to try and decide the case on the merits. The
petitioner further prays that the appeal of the intervenor Juan Grey be declared out of time on the
ground that he receive copy of the decision on August 3 but did not file his notice of appeal until
August 25, 1945.

1. The first question to determine is whether the action instituted by the petitioner Josefa Fabie in the
municipal court is a purely possessory action and as such within the jurisdiction of said court, or an
action founded on property right and therefore beyond the jurisdiction of the municipal court. In other
words, is it an action of unlawful detainer within the purview of section 1 of Rule 72, or an action
involving the title to or the respective interests of the parties in the property subject of the litigation?

Said section 1 of Rule 72 provides that "a landlord, vendor, vendee, or other person against whom
the possession of any land or building is unlawfully withheld after the expiration or termination of the
right to hold possession, by virtue of any contract, express or implied, or the legal representatives or
assigns of any such landlord, vendor vendee, or other person, may, at any time within one year after
such unlawful deprivation of withholding of possession, bring an action in the proper inferior court
against the person or persons unlawfully withholding or depriving of possession, or any person or
persons claiming under them, for the restitution of such possession, together with the damages and
costs."

It is admitted by the parties that the petitioner Josefa Fabie is the usufructuary of the income of the
property in question and that the respondent Juan Grey is the owner thereof. It is likewise admitted
that by virtue of a final judgment entered in civil case No. 1659 of the Court of First Instance of
Manila between the usufructuary and the owner, the former has the right to collect all the rents of
said property for herself with the obligation on her part to pay all the real estate taxes, special
assessments, and insurance premiums, and make all necessary repairs thereon, and in case default
on her part the owner shall have the right to do all those things, in which event he shall be entitled to
collect all subsequent rents of the property concerned until the amount paid by him and the
expenses of collection are fully satisfied, after which the usufructuary shall again collect the rents.
There is therefore no dispute as to the title to or the respective interests of the parties in the property
in question. The naked title to the property is to admittedly in the respondent Juan Grey, but the right
to all the rents thereof, with the obligation to pay the taxes and insurance premiums and make the
necessary repairs, is, also admittedly, vested in the usufructuary, the petitioner Josefa Fabie, during
her lifetime. The only question between the plaintiff and the intervenor is: Who has the right to
manage or administer the property — to select the tenant and to fix the amount of the rent? Whoever
has that right has the right to the control and possession of the property in question, regardless of
the title thereto. Therefore, the action is purely possessory and not one in any way involving the title
to the property. Indeed, the averments and the prayer of the complaint filed in the municipal court so
indicate, and as a matter of fact the defendant Ngo Soo does not pretend to be the owner of the
property, but on the contrary admits to be a mere tenant thereof. We have repeatedly held that in
determining whether an action of this kind is within the original jurisdiction of the municipal court or of
the Court of First Instance, the averments of the complaint and the character of the relief sought are
primarily to be consulted; that the defendant in such an action cannot defeat the jurisdiction of the
justice of the peace or municipal court by setting up title in himself; and that the factor which defeats
the jurisdiction of said court is the necessity to adjudicate the question of title.
(Mediran vs. Villanueva, 37 Phil., 752, 759; Medel vs. Militante, 41 Phil., 526, 529;
Sevilla vs. Tolentino, 51 Phil., 333; Supia and Batioco vs. Quintero and Ayala, 59 Phil., 312;
Lizo vs. Carandang, G.R. No. 47833, 2 Off. Gaz., 302; Aguilar vs. Cabrera and Flameño, G.R. No.
49129.)

The Court of First Instance was evidently confused and led to misconstrue the real issue by the
complaint in intervention of Juan Grey, who, allying himself with the defendant Ngo Soo, claimed
that he is the administrator of the property with the right to select the tenant and dictate the
conditions of the lease, thereby implying that it was he and not the plaintiff Josefa Fabie who had the
right to bring the action and oust the tenant if necessary. For the guidance of that court and to
obviate such confusion in its disposal of the case on the merits, we deem it necessary and proper to
construe the judgment entered by the Court of First Instance of Manila in civil case No. 1659, entitled
"Josefa Fabie and Jose Carandang, plaintiffs, vs. Juan Grey, defendant, and Nieves G. Vda. de
Grey, et al., intervenors-defendants" which judgment was pleaded by the herein respondents Juan
Grey and Ngo Soo in the municipal court. According the decision, copy of which was submitted to
this Court as Appendix F of the petition and as Annex 1 of the answer, there was an agreement,
dated March 31, 1942, between the usufructuary Josefa Fabie and the owner Juan Grey whereby
the latter as agent collected the rents of the property in question and delivered the same to the
usufructuary after deducting the expenses for taxes, repairs, insurance premiums and the expenses
of collection; that in the month of October 1943 the usufructuary refused to continue with the said
agreement of March 31, 1942, and thereafter the said case arose between the parties, which by
stipulation approved by the court was settled among them in the following manner: Beginning with
the month of September 1944 the usufructuary shall collect all the rents of the property in question;
shall, at her own cost and expense, pay all the real estate taxes, special assessments, and
insurance premiums, including the documentary stamps, and make all the necessary repairs on the
property; and in case of default on her part the owner shall the right to do any or all of those things,
in which event he shall be entitled to collect all subsequent rents until the amounts paid by him are
fully satisfied, after which the usufructuary shall again collect the rents. It was further stipulated by
the parties and decreed by the court that "the foregoing shall be in effect during the term of the
usufruct and shall be binding on the successors and assigns of each of the parties."

Construing said judgment in the light of the ninth clause of the will of the deceased Rosario Fabie y
Grey, which was quoted in the decision and by which Josefa Fabie was made by the usufructuary
during her lifetime of the income of the property in question, we find that the said usufructuary has
the right to administer the property in question. All the acts of administration — to collect the rents for
herself, and to conserve the property by making all necessary repairs and paying all the taxes,
special assessments, and insurance premiums thereon — were by said judgment vested in the
usufructuary. The pretension of the respondent Juan Grey that he is the administrator of the property
with the right to choose the tenants and to dictate the conditions of the lease is contrary to both the
letter and the spirit of the said clause of the will, the stipulation of the parties, and the judgment of
the court. He cannot manage or administer the property after all the acts of management and
administration have been vested by the court, with his consent, in the usufructuary. He admitted that
before said judgment he had been collecting the rents as agent of the usufructuary under an
agreement with the latter. What legal justification or valid excuse could he have to claim the right to
choose the tenant and fix the amount of the rent when under the will, the stipulation of the parties,
and the final judgment of the court it is not he but the usufructuary who is entitled to said rents? As
long as the property is properly conserved and insured he can have no cause for complaint, and his
right in that regard is fully protected by the terms of the stipulation and the judgment of the court
above mentioned. To permit him to arrogate to himself the privilege to choose the tenant, to dictate
the conditions of the lease, and to sue when the lessee fails to comply therewith, would be to place
the usufructuary entirely at his mercy. It would place her in the absurd situation of having a certain
indisputable right without the power to protect, enforce, and fully enjoy it.

One more detail needs clarification. In her complaint for desahucio Josefa Fabie alleges that she
needs the premises in question to live in, as her former residence was burned. Has she the right
under the will and the judgment in question to occupy said premises herself? We think that, as a
corollary to her right to all the rent, to choose the tenant, and to fix the amount of the rent, she
necessarily has the right to choose herself as the tenant thereof, if she wishes to; and, as she fulfills
her obligation to pay the taxes and insure and conserve the property properly, the owner has no
legitimate cause to complain. As Judge Nable of the municipal court said in his decision, "the
pretension that the plaintiff, being a mere usufructuary of the rents, cannot occupy the property, is
illogical if it be taken into account that that could not have been the intention of the testatrix."

We find that upon the pleadings, the undisputed facts, and the law the action instituted in the
municipal court by the petitioner Josefa Fabie against the respondent Ngo Soo is one of unlawful
detainer, within the original jurisdiction of said court, and that therefore Judges Dizon and Gutierrez
David of the Court of First Instance erred in holding otherwise and in quashing the case upon
appeal.

2. The next question to determine is the propriety of the remedy availed of by the petitioner in this
Court. Judging from the allegations and the prayer of the petition, it is in the nature
of certiorari and mandamus, to annul the order of dismissal and to require the Court of First Instance
to try and decide the appeal on the merits. Under section 3 of Rule 67, when any tribunal unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, and there is no other plain, speedy, and adequate remedy in the ordinary course of law, it
may be compelled by mandamus to do the act required to be done to protect the rights of the
petitioner. If, as we find, the case before the respondent judge is one of unlawful detainer, the law
specifically requires him to hear and decide that case on the merits, and his refusal to do so would
constitute an unlawful neglect in the performance of that duty within section 3 of Rule 67. Taking into
consideration that the law requires that an unlawful detainer case be promptly decided (sections 5
and 8, Rule 72),it is evident that an appeal from the order of dismissal would not be a speedy and
adequate remedy; and under the authority of Cecilio vs. Belmonte (48 Phil., 243, 255), and Aguilar
vs. Cabrera and Flameño (G.R. No. 49129), we hold that mandamus lies in this case.

3. The contention of the petitioner that the appeal of the intervenor Juan Grey was filed out of time is
not well founded. Although said respondent received copy of the decision of the municipal court on
August 3, 1945, according to the petitioner (on August 6, 1945, according to the said respondent), it
appears from the sworn answer of the respondent Ngo Soo in this case that on August 8 he filed a
motion for reconsideration, which was granted in part on August 18. Thus, if the judgment was
modified on August 18, the time for the intervenor Juan Grey to appeal therefrom did not run until he
was notified of said judgment as modified, and since he filed his notice of appeal on August 23, it
would appear that his appeal was filed on time. However, we observe in this connection that said
appeal of the intervenor Juan Grey, who chose not to answer the petition herein, would be academic
in view of the conclusions we have reached above that the rights between him as owner and Josefa
Fabie as usufructuary of the property in question have been definitely settled by final judgment in
civil case No. 1659 of the Court of First Instance of Manila in the sense that the usufructuary has the
right to administer and possess the property in question, subject to certain specified obligations on
her part.

The orders of dismissal of the respondent Court of First Instance, dated September 22 and October
31, 1945, in the desahucio case (No. 71149) are set aside that court is directed to try and decide the
said case on the merits; with the costs hereof against the respondent Ngo Soo.

Moran, C.J., Paras, Jaranilla, Feria, De Joya, Pablo, Perfecto, Bengzon, and Briones, JJ., concur.

Separate Opinions

HILADO, J., concurring:

I concur on the sole ground that, in my opinion, the amended complaint, dated July 12, 1945, filed by
plaintiff in the Municipal Court of Manila, expressly alleges an agreement between her and
defendant Ngo Boo Soo regarding the leasing of the premises in question, and that said amended
complaint contains further allegations which, together with the allegations of said agreement, under
a liberal construction (Rule 1, section 2, Rules of the Court), would constitute a prima facie showing
that the case is one of unlawful detainer. Of course, this is only said in view of the allegations of the
amended complaint, without prejudice to the evidence which the parties may adduce at the trial in
the merits, in view of which the court will judge whether or not, in point of fact, the case is one of
unlawful detainer.

G.R. No. L-19614 March 27, 1971

JESUS M. GABOYA, as Administrator of the Estate of DON MARIANO CUI, plaintiff-appellant,

vs.
ANTONIO MA. CUI, MERCEDES CUI-RAMAS and GIL RAMAS, defendants-appellees, JESUS
MA. CUI, JOSE MA. CUI, SERAFIN MA. CUI, JORGE MA. CUI, ROSARIO CUI DE
ENCARNACION, PRECILLA C. VELEZ, and LOURDES C. VELEZ, intervenors-appellants,
VICTORINO REYNES, defendant-in-counterclaim-appellee.

Vicente Jayme for plaintiff-appellant.

Hector L. Hofileña Candido Vasqueza and Jaime R. Nuevas for defendants-appellees.

Jose W. Diokno for intervenors-appellants.

REYES, J.B.L., J.:

Direct appeal (before Republic Act 5440) from a decision of the Court of First Instance of Cebu (in its
Civil Case No. R-1720) denying resolution of a contract of sale of lots 2312, 2313 and 2319
executed on 20 March 1946 by the late Don Mariano Cui in favor of three of his children Antonio Ma.
Cui, Mercedes Cui de Ramas and Rosario Cui de Encarnacion, but sentencing the first two, Antonio
Cui and Mercedes; Cui, to pay, jointly and severally (in solidum), to the Judicial Administrator of the
Estate of Mariano Cui (appellant Jesus M. Gaboya the amount of P100,088.80, with legal interest
from the interposition of the complaint (5 November 1951), plus P5,000.00 attorney's fees and the
costs.

The antecedents of the case are stated in the previous decision of this Supreme Court rendered on
31 July 1952, in the case of Antonio and Mercedes Cui vs. Judge Piccio, et al., 91 Phil. 712.

Don Mariano Cui, widower, as owner of lots Nos. 2312, 2313 and 2319 situated in
the City of Cebu, with an area of 152 square meters, 144 square meters and 2,362
square meters, respectively, or a total extension of 2,658 square meters, on March 8,
1946, sold said three lots to three of his children named Rosario C. de Encarnacion,
Mercedes C. de Ramas and Antonio Ma. Cui, pro indiviso for the sum of P64,000.
Because Rosario C. de Encarnacion for lack of funds was unable to pay her
corresponding share of the purchase price, the sale to her was cancelled and the
one-third of the property corresponding to her was returned to the vendor. These
three lots are commercial. The improvements thereon were destroyed during the last
Pacific War so that at the time of the sale in 1946, there were no buildings or any
other improvements on them. Because of the sale of these lots pro indiviso and
because of the cancellation of the sale to one of the three original vendees, Don
Mariano and his children Mercedes and Antonio became co-owners of the whole
mass in equal portions. In the deed of sale vendor Don Mariano retained for himself
the usufruct of the property in the following words:

"...do hereby sell, transfer, and convey to Messrs. Rosario C. de

Encarnacion, Mercedes C. de Ramas and Antonio Ma. Cui, the
above-mentioned parcel of land in equal parts, ... and the further
consideration, that I, shall enjoy the fruits and rents of the same, as
long as my natural life shall last. Granting and conveying unto the
said buyers the full rights as owners to enjoy the constructive
possession of the same, improve, construct and erect a building in
the lot, or do whatever they believe to be proper and wise, ..."

Subsequently, a building was erected on a portion of this mass facing Calderon

street and was occupied by a Chinese businessman for which he paid Don Mariano
P600 a month as rental. The date when the building, was constructed and by whom
do not appear in the record.

Sometime after the sale to Mercedes and Antonio the two applied to the
Rehabilitation Finance Corporation (RFC) for a loan of P130,000 with which to
construct a 12-door commercial building presumably on a portion of the entire parcel
corresponding to their share. In order to facilitate the granting of the loan and
inasmuch as only two of the three co-owners applied for the loan, Don Mariano on
January 7, 1947, executed an authority to mortgage (Annex U) authorizing his two
children co-owners to mortgage his share, the pertinent portion of said authority
reading thus:

"That by virtue of these presents, I hereby agree, consent permit and authorize my
said co-owners to mortgage, pledge my share so that they may be able to construct
a house or building in the said property, provided however, that the rents of the said
land shall not be impaired and will always be received by me."

The loan was eventually granted and was secured by a mortgage on the three lots in
question, Don Mariano being included as one of the three mortgagors and signing
the corresponding promissory note with his two co-owners. He did not however, join
in the construction of the 12-door commercial building as may be gathered from the
"Convenio de Asignacion de Parte' (Annex V) wherein it was agreed among the three
co-owners to assign to Don Mariano that one-third of the whole mass facing
Calderon street and on which was erected the building already referred to as being
occupied by a Chinese businessman and for which he was paying Don Mariano
P600 a month rental. The area of this one-third portion was fixed at 900 square
meters approximately one-third of the total area of the three lots. The pertinent
Portion of this Annex V reads as follows:

"Que como quiera que, la propiedad arriba descrita esta actualmente hipotecada a la
Rehabilitation Finance Corporation para garantizar la construccion que mis
condueños cnotruyeron en la parte que les correponde;

"Y que como quiera que, el Sr. Don Mariano Cui, uno de los condueños, no ha
querido unirse a la construccion de dicho edificio, y desea que la parte que le
corresponda sea la 1/3 que este dando frente a la Calle Calderon."

The 12-door commercial building was eventually constructed and the builder-owners
thereof Mercedes and Antonio received and continued to receive the rents thereof
amounting to P4,800 a month and paying therefrom the installments due for payment
on the loan to the Rehabilitation Finance Corporation.

On March 25, 1948, two other children of Don Mariano named Jesus and Jorge
brought an action (Civil case No. 599R) in the Court of First Instance of Cebu for the
purpose of annulling the deed of sale of the three lots in question on the ground that
they belonged to the conjugal partnership of Don Mariano and his deceased wife
Antonia Perales. Thereafter, plaintiffs Jesus and Jorge applied for the appointment of
a receiver to take charge of the lots and of the rentals of the building. This petition
was denied on November 8, 1948.

On March 19, 1949, Rosario C. Encarnacion, that daughter of Don Mariano who was
one of the original vendees, filed a petition to declare her father incompetent and to
have a guardian appointed for his property, in Special Proceeding No. 481-R of the
Court of First Instance of Cebu. In May 1949 the petition was granted and Don
Mariano was declared incompetent and Victorino Reynes was appointed guardian of
his property.  Thereafter, the complaint in civil case No. 599-R seeking to annul the
lâwphî1.ñèt

deed of sale of the three lots in favor of Mercedes and Antonio was amended so as
 to include as plaintiffs not only the guardian Victorino Reynes but also all the other
children of Don Mariano.

On June 15, 1949, guardian Victorino Reynes filed a motion in the guardianship
proceedings seeking authority to collect the rentals from the three lots in question
and asking the Court to order Antonio and Mercedes to deliver to him as guardian all
the rentals they had previously collected from the 12-door commercial building,
together with all the papers belonging to his ward. This motion was denied by Judge
Piccio in his order of July 12, 1949. The guardian did not appeal from this order.

On May 22, 1951, Judge Saguin rendered a decision in civil case No. 599-R and
found that the three lots in question were not conjugal property but belonged
exclusively to Don Mariano and so upheld the sale of two-thirds of said lots to
Antonio and Mercedes. The plaintiffs appealed to the Court of Appeals where the
case is now pending.

From the Court of Appeals the case was brought to the Supreme Court, and the decision of Judge
Saguin upholding the validity of the sale in favor of Antonio and Mercedes Cui was finally affirmed on
21 February 1957, in Cui vs. Cui, 100 Phil, 914.

This third case now before Us was started by the erstwhile guardian of Don Mariano Cui (while the
latter was still alive) in order to recover P126,344.91 plus legal interest from Antonio Cui and
Mercedes Cui (Record on Appeal, pages 2-3) apparently as fruits due to his ward by virtue of his
usufruct. The guardian's complaint was supplemented and amplified by a 1957 complaint in
intervention (duly admitted) filed by the other compulsory heirs of Mariano Cui, who had died on 29
July 1952, some nine months after the present case was instituted in the court below (Record on
Appeal, pages 67-68).

In essence, the complaint alleges that the usufructuary right reserved in favor of Don Mariano Cui
extends to and includes the rentals of the building constructed by Antonio Cui and Mercedes Cui on
the land sold to them by their father; that the defendants retained those rentals for themselves; that
the usufructuary rights of the vendor were of the essence of the sale, and their violation entitled him
to rescind (or resolve) the sale. It prayed either for rescission with accounting, or for delivery of the
rentals of the building with interests, attorneys' fees and costs (Record on Appeal, pages 12-38).

The amended answer, while admitting the reserved usufruct and the collection of rentals of the
building by the defendants, denied that the usufructuary rights included or extended to the said
rentals, or that such usufruct was of the essence of the sale; that the vendor (Don Mariano Cui ) had
waived and renounced the usufruct and that the defendants vendees gave the vendor P400.00 a
month by way of aid; that the original complaint having sought fulfillment of the contract, plaintiff can
not thereafter seek rescission; that such action is barred by res judicata (on account of the two
previous decisions of the Supreme Court and by extinctive prescription. Defendants counterclaimed
for actual and moral damages and attorney's fees.

Plaintiffs denied the allegations in the counterclaim. .

From a consideration of the pleadings, the basic and pivotal issue appears to be whether the
usufruct reserved by the vendor in the deed of sale, over the lots in question that were at the time
vacant and unoccupied, gave the usufructuary the right to receive the rentals of the commercial
building constructed by the vendees with funds borrowed from the Rehabilitation and Finance
Corporation, the loan being secured by a mortgage over the lots sold. Similarly, if the usufruct
extended to the building, whether the failure of the vendees to pay over its rentals to the
usufructuary entitled the latter to rescind, or more properly, resolve the contract of sale. In the third
place, should the two preceding issues be resolved affirmatively, whether the action for rescission
due to breach of the contract could still be enforced and was not yet barred.

The court below declared that the reserved right of usufruct in favor of the vendor did not include,
nor was it intended to include, nor was it intended to include, the rentals of the building subsequently
constructed on the vacant lots, but that it did entitle the usufructuary to receive a reasonable rental
for the portion of the land occupied by the building, which the Court a quo fixed at Pl,858.00 per
month; and that the rentals for the land from November, 1947, when the building was rented, to 29
July 1952, when Don Mariano died, amounted to P100,088.80. It also found no preponderant
evidence that the seller, Don Mariano Cui, had ever waived his right of usufruct, as contended by the
defendants; and that the Supreme Court, in denying reconsideration of its second (1957) decision
(100 Phil. 914), had, like the court of origin, refused to pass upon the extent of the usufructuary
rights of the seller, specially because the present case, was already pending in the Court of First
Instance, hence no res judicata existed. No attorney's fees were awarded to the defendants, but
they were sentenced to pay counsel fees to plaintiffs.

Both parties appealed in the decision of the court a quo.

We find no the decision appealed from. As therein pointed out, the terms of the 1946 deed of sale of
the vacant lots in question made by the late Don Mariano Cui in favor of his three children, Rosario,
Mercedes and Antonio Cui, in consideration of the sum of P64,000.00 and the reserved usufruct of
the said lot in favor of the vendor, as amplified by the deed of 7 January 1947, authorizing
Mercedes, and Antonio Cui to borrow money, with the security of a mortgage over the entirety of the
lots, in order to enable them to construct a house or building thereon —

provided, however, that the rents of said land shall not be impaired and will always
received by me.

clearly prove that the reserved usufruct in favor of the vendor, Mariano Cui, was limited to the rentals
of the land alone. Had it been designed to include also the rents of the buildings intended to be
raised on the land, an express provision would have been included to the effect, since in both
documents (heretofore quoted) the possibility of such construction was clearly envisaged and
mentioned.

Appellants, however, argue that the terms of the deed constituting the usufruct are not determinative
of the extent of the right conferred; and that by law, the enjoyment of the rents of the building
subsequently erected passed to the usufructuary, by virtue of Article 571 of the Civil Code of the
Philippines (Article 479 of the Spanish Civil Code of 1889) prescribing that:

Art. 571. The usufructuary shall have the right to enjoy any increase which the thing
in usufruct may acquire through accession, the servitudes established in its favor,
and, in general, all the benefits inherent therein,

inasmuch as (in the appellants' view) the building constructed by appellees was an accession to the
land.

This argument is not convincing. Under the articles of the Civil Code on industrial accession by
modification on the principal land (Articles 445 to 456 of the Civil Code) such accession is limited
either to buildings erected on the land of another, or buildings constructed by the owner of the land
with materials owned by someone else.
Thus, Article 445, establishing the basic rule of industrial accession, prescribes that —

Whatever is built, planted or sown on the land of another, and the improvements or
repairs made thereon, belong to the owner of the land subject to the provisions of the
following articles.

while Article 449 states:

He who builds, plants or sows in bad faith on the land of another, loses what is built,
planted or sown without right to indemnity. (Emphasis supplied)

Articles 447 and 445, in turn, treat of accession produced by the landowner's building, planting and
sowing "with the materials of another" and when "the materials, plants or seeds belong to a third
person other than the landowner or the builder, planter or sower.

Nowhere in these articles on industrial accession is there any mention of the case of landowner
building on his own land with materials owned by himself (which is the case of appellees Mercedes
and Antonio Cui). The reason for the omission is readily apparent: recourse to the rules of accession
are totally unnecessary and inappropriate where the ownership of land and of the, materials used to
build thereon are concentrated on one and the same person. Even if the law did not provide for
accession the land-owner would necessarily own the building, because he has paid for the materials
and labor used in constructing it. We deem it unnecessary to belabor this obvious point. .

There is nothing in the authorities (Manresa, Venezian, Santamaria, and Borrell cited by appellants
that specifically deals with constructions made by a party on his own land with his own materials,
and at his own expense. The authorities cited merely indicate the application in general of the rules
of accession. But as already stated above, the Civil Code itself limits the cases of industrial
accession to those involving land and materials belonging to different owners. Anyway,
commentators' opinions are not binding where not in harmony with the law itself.

The author that specifically analyses the situation of the usufructuary vis-a-vis constructions made
by the landowner with his own materials is Scaevola (Codigo Civil, 2d Edition, pages 288 to 297) ;
and his conclusion after elaborate discussion is that, at the most —

(b) El nudo propietario no podra, sin el consentimiento del usufructuario, hacer

construcciones, plantaciones y siembras en el predio objecto del usufructo; y en el
caso de que aquel lascosintiese, la utilizacion sera comun en los frutos y
productosde lo sembrado y plantado, y con respecto a las construcciones,el
usufructuario tendra derecho a la renta que de mutuo acuerdo se fije a las mismas;
en su defecto, por la autoridad judicial (Author cit., Emphasis supplied).

Scaevola's opinion is entirely in harmony with Article 595 of the Civil Code of the Philippines,
prescribing that —

The owner may construct any works and make any improvements of which the
immovable usufruct is susceptible, or make new plantings thereon if it be rural,
provided that such acts do not cause a diminuition in the value of the usufruct or
prejudice the right of the usufructuary.

Note that if the income from constructions made by the owner during the existence of the usufruct
should be held to accrue automatically to the usufructuary under Article 571, such improvements
could not diminish the value of the usufruct nor prejudice the right of the usufructuary; and the
qualifications by Article 595 on the owner's right to build would be redundant. The limitations set by
Article 595 to the construction rights of the naked owner of the land are evidently premised upon the
fact that such constructions would necessarily reduce the area of the land under usufruct, for which
the latter should be indemnified. This is precisely what the court a quo has done in sentencing the
appellee owners of the building to pay to the usufructuary a monthly rent of P1,758.00 for the area
occupied by their building, after mature consideration of the rental values of lands in the
neighborhood.

Additional considerations against the thesis sustained by appellants are (1) that the amount invested
in the building represents additional capital of the landowners not foresee" when the usufruct was
created; and (2) that no land-owner would be willing to build upon vacant lots under usufruct if the
gain therefrom were to go to the usufructuary while the depreciation of the value of the building (as
distinguished from the necessary repairs) and the amortization of its cost would burden exclusively
the owner of the land. The unproductive situation of barren lots would thus be prolonged for an
indefinite time, to the detriment of society. In other words, the rule that appellants advocate would
contradict the general interest and be against public policy.

Appellants urge, in support of their stand, that the loan .for the construction of the building was
obtained upon the security of a mortgage not only upon the share of appellees but also upon the
undivided interest of Don Mariano Cui in the lots in question. That factor is irrelevant to the
ownership of the building, because the money used for the building was loaned exclusively to the
appellees, and they were the ones primarily responsible for its repayment. Since the proceeds of the
loan was exclusively their property,  the building constructed with the funds loaned is likewise their
1

own. A mortgagor does not become directly liable for the payment of the loan secured by the
mortgage, in the absence of stipulation to that effect; and his subsidiary role as guarantor does not
entitle him to the ownership of the money borrowed, for which the mortgage is mere security.

We agree with the trial court that there was no adequate proof that the vendor, Don Mariano Cui,
ever renounced his usufruct. The alleged waiver was purely verbal, and is supported solely by the
testimony of Antonio Cui, one of the alleged beneficiaries thereof. As a gratuitous renunciation of a
real right over immovable property that as created by public document, the least to be expected in
the regular course of business is that the waiver should also appear in writing. Moreover, as pointed
out in the appealed decision (Record on Appeal, page 184, et seq.), in previous pleadings sworn to
by Antonio Cui himself, in Civil Case No. 599 and Special Proceeding 481-R of the Cebu Court of
First Instance (Exhibits "I", "J", and "20-A"), he and his sister Mercedes had contended that Don
Mariano Cui had been receiving from them P400.00 per month as the value of his usufruct, and
never claimed that the real right had been renounced or waived.  The testimony of Antonio Cui on
lâwphî1.ñèt

the alleged waiver, given after the usufructuary had been declared incompetent and could no longer
contradict him, is obviously of negligible probative value.

Turning now to the second issue tendered by herein appellants, that the non-compliance with the
provisions concerning the usufruct constituted sufficient ground for the rescission (or resolution) of
the sale under the tacit resolutory condition established by Article 1191 of the Civil Code. What has
been stated previously in discussing the import of Don Mariano's usufruct shows that the alleged
breach of contract by the appellees Antonio and Mercedes Cui could only consist in their failure to
pay to the usufructuary the rental value of the area occupied by the building constructed by them.
But as the rental value in question had not been ascertained or fixed either by the parties or the
court, prior to the decision of 31 October 1961, now under appeal, nor had Don Mariano Cui, or
anyone else in his behalf, made any previous demand for its payment, the default, if any, can not be
exclusively blamed upon the defendants-appellees. Hence, the breach is not it "so substantial and
fundamental as to defeat the object of the parties in making the agreement"  as to justify the radical
2

remedy of rescission. This Court, in Banahaw, Inc. vs. Dejarme 55 Phil. 338, ruled that —

...Under the third paragraph of article 1124  of the Civil Code, the court is given a
3

discretionary power to allow a period within which a person in default may be

permitted to perform the stipulation upon which the claim for resolution of the
contract is based. The right to resolve or rescind a contract for non-performance of
one of its stipulations is, therefore, not absolute.

We have stated "the default, if any," for the reason that without previous ascertainment of the exact
amount that the, defendants-appellees were obligated to turn over to the usufructuary by way of
reasonable rental value of the land occupied by their building, said parties can not be considered as
having been in default (mora) for failure to turn over such monies to the usufructuary. "Ab illiquido
non fit mora": this principle has been repeatedly declared by the jurisprudence of Spanish Supreme
Court (v. Manresa, Commentaries to the Spanish Civil Code [5th Ed.], Vol. 8, No. 1, page 134) that
is of high persuasive value in the absence of local adjudications on the point .

No puede estimarse que incurre en mora el obligado al pago de cantidad mientras

esta no sea liquida, y tenga aquel conocimiento por virtud de requirimiento o
reclamacion judicial de lo que debe abonar (Sent. TS of Spain, 13 July 1904) .

Seguin tiene declarado esta sala con repeticion, no se puede establecer que hay
morosidad, ni condenar por tal razon al abono de intereses cuando no se conoce la
cantidad liquida reclamable" (Sent. TS of Spain, 29 November 1912)

... es visto que no existiendo obligacion de entregar cantidad hasta tanto que se
liquide no puede estimarse segun jurisprudencia, que los recurridos ineurran en
mora, por tanto que hayan de pagar intereses legales de la cantidad que en su caso
resulte (Sent, TS of Spain, 29 April 1914)

In the absence of default on the part of the defendants-vendees, Article 1592 of the Civil Code of the
Philippines that is invoked by appellants in, support of their all right to rescind the sale, is not
applicable: for said article (which is a mere variant of the general principle embodied in Article 1191,
of the same Code) presupposes default of the purchasers in the fulfilment of their obligations. As
already noted, no such default or breach could occur before liquidation of the usufructuary's credit;
and the time for paying such unliquidated claim can not be said to have accrued until the decisions
under appeal was rendered, fixing the rental value of the land occupied by the building.

The filing of the initial complaint by Victoriano Reynes, then guardian of the late Don Mariano in
1951, seeking to recover P126,344.91 plus interest, did not place appellees in default, for that
complaint proceeded on the theory that the usufructuary was entitled to all the rentals of the building
constructed by the appellees on the lot under usufruct; and as We have ruled, that theory was not
legally tenable. And the 1957 complaint in intervention, seeking rescission of the sale as alternative
remedy, was only interposed after the death of the usufructuary in 1952, and the consequent
extinction of the usufruct, conformably to Article 603, paragraph (1), of the Civil Code.

It is also urged by the appellants that the usufruct was a condition precedent to the conveyance of
ownership over the land in question to herein appellees, and their failure to comply with their
obligations under the usufruct prevented the vesting of title to the property in said appellees. We
need not consider this argument, since We have found that the usufruct over the land did not entitle
the usufructuary to either the gross or the net income of the building erected by the vendees, but
only to the rental value of the portion of the land occupied by the structure (in so far as the
usufructuary was prevented from utilizing said portion), and that rental value was not liquidated when
the complaints were filed in the court below, hence, there was no default in its payment. Actually,
this theory of appellants fails to take into account that Don Mariano could not retain ownership of the
land and, at the same time, be the usufructuary thereof. His intention of the usufructuary rights in
itself imports that he was no longer its owner. For usufruct is essentially jus in re aliena; and to be a
usufructuary of one's own property is in law a contradiction in terms, and a conceptual absurdity.

The decision (Exhibit "30") as well as the resolution of this Court upon the motion to reconsider filed
in the previous case (100 Phil 914) refusing to adjudicate the usufructuary rights of Don Mariano in
view of the pendency of the present litigation (Exhibit "22") amply support the trial court's overruling
of the defense of res judicata.

Summing up, We find and hold:

(1) That the usufructuary rights of the late Don Mariano Cui, reserved in the deed of sale (Exhibit "A"
herein), was over the land alone and did not entitle him to the rents of the building later constructed
thereon by defendants Mercedes and Antonio Cui at their own expense.

(2) That said usufructuary was entitled only to the reasonable rental value of the land occupied by
the building aforementioned.

(3) That such rental value not having been liquidated until the judgment under appeal was rendered,
Antonio and Mercedes Cui were not in default prior thereto, and the deed of sale was therefore, not
subject to rescission.

(4) That as found by the court below, the reasonable rental value of the land occupied by the
defendants' building totalled P100,088.80 up to the time the usufructuary died and the usufruct
terminated.

(5) That pursuant to Articles 2208 (No. 11), 2210 and 2213 of the Civil Code,  the trial court had
5

discretion to equitably award legal interest upon said sum of P100,088.80, as well as P5,000.00
attorney's fees, considering that defendants Cui have enjoyed the said rental value of the land during
all those years.

WHEREFORE, finding no reversible error in the appealed decision, the same is hereby affirmed.
Costs against appellant-intervenors, Jesus Ma. Cui, Jose Ma. Cui, Serafin Ma. Cui, Jorge Ma. Cui,
Rosario Cui de Encarnacion, Precilla C. Velez, and Lourdes C. Velez.

G.R. No. L-24302 August 18, 1972

MIGUEL PALAD, ET AL., plaintiffs-appellants, VICTORIA QUEANO, ET AL., intervenors-

appellees,
vs.
THE GOVERNOR OF QUEZON PROVINCE and THE MUNICIPALITY OF TAYABAS,
QUEZON, defendants-appellees.

Jose L. Desvarro, for plaintiffs-appellants.

Milberto B. Zurbano for intervenors-appellees.

Assistant Provincial Fiscal Ramon M. Yngente for defendants-appellees.

MAKASIAR, J.:p

Plaintiffs-appellants appealed on January 15, 1965 from the decision dated November 28, 1964 of the Court of First Instance of Quezon,
dismissing their complaint as well as the complaint in intervention.

In their complaint dated April 20, 1958 against the governor of Quezon province and the municipality
of Tayabas, plaintiffs-appellants Miguel Palad, Fe Palad, Victoria Queano, Jose Palomera,
Concepcion Palomera, Edgardo Obciana, Galo Nosce, Celso Zafranco and Ernesto Zafranco
alleged that they are the remaining immediate heirs and/or successors-in-interest of the deceased
Luis Palad, they being the grandchildren of Policarpio Palad and Victor Palad, both deceased
brothers of the late Luis Palad; that the defendant provincial governor is the trustee and/or
administrator and the defendant municipality of Tayabas the beneficiary of Lots Nos. 3464 and 3469
respectively covered by O.C.T. No. 6448 and O.C.T. No. 6656 situated in Barrio Colongcolong (now
Talawtalaw), Lucena, Quezon; that the purpose of the trusteeship of the aforesaid lots as constituted
by the last will and testament of the deceased Luis Palad dated January 25, 1892 and duly
protocolized on July 27, 1897, was to erect or establish a high school in the town of Tayabas out of
the income of the aforesaid two lots for the benefit of the said town of Tayabas; that the said trust
was duly fulfilled upon the complete establishment in or about 1932 of a high school now known as
"Luis Palad High School" in the town of Tayabas financed with the income of said lots and is actually
self-supporting, that the town of Tayabas has been enjoying the income of the said lots as
beneficiary for the last 54 years since November 9, 1904 up to the present time (when complaint
was filed), while the defendant provincial governor continues to be the trustee and/or administrator of
the two lots in violation of Article 605 of the Civil Code; that the pertinent facts are well-established in
the decision of the Supreme Court on December 10, 1924 in the case of "The Government of the
Philippine Islands vs. Anastacia Abadilla, et al.,";  that the aforesaid lots have a net annual income of
1

P7,000; and that since the establishment of the Luis Palad High School in 1932 or since November,
1904 in accordance with Article 605 of the Civil Code, the plaintiffs were already entitled to the
reversion of the two lots in their favor and to the dissolution and/or termination of the trusteeship;
and accordingly prayed for judgment (1) directing the defendant provincial governor to submit an
accounting of the fruits or income of the two lots from 1932, and to turn over the funds under his
trusteeship to the plaintiffs, (2) terminating or dissolving the trusteeship, (3) ordering the reversion of
the lots to the plaintiffs, (4) directing the governor to reconvey the same to the plaintiffs, (5) ordering
the register of deeds of Quezon province to cancel O.C.T. Nos. 6448 and 6656 and to issue the
transfer certificates of title in their favor, and (6) sentencing the defendants to pay the costs.

The answer dated June 11, 1958 filed by the provincial fiscal for and in behalf of the defendants,
alleges that they have no knowledge or information sufficient to form a belief as to the truth of
plaintiffs' claim that they are the immediate heirs and successors-in-interest of the deceased Luis
Palad, denies the rest of the allegations in the complaint, and interposes as special defenses the fact
that the two parcels of land were ordinary unconditional devise of realties in trust contained in the
last will and testament of the late Luis Palad for the establishment and maintenance of a secondary
school for the continued benefit and welfare of the inhabitants of the municipality of Tayabas; that
Article 605 of the new Civil Code (on usufruct) does not apply to the case at bar; that to give effect to
the above-mentioned testamentary grant, the Philippine Legislature enacted Acts Nos. 3232, 3462
and 3757 creating the Luis Palad High School to be established and maintained with funds coming
from said two parcels of land, which institution is still existing and being maintained for the benefit of
the inhabitants of the said town; that the testator intended the said testamentary grant or devise of
land for the establishment and maintenance of a high school to be permanent and not subject to any
resolutory or other condition; that the ownership of the two parcels of land had been irrevocably
vested in the province of Quezon as trustee with the municipality of Tayabas as cestui que trustent;
that the plaintiffs as alleged heirs of the late Luis Palad are bereft of any interest in said lots; and that
the defendants are conscientiously devoting the funds from the said two parcels for the
establishment and maintenance of the said high school in accordance with the will of the testator
and they have not enriched themselves or benefited therefrom; that the province of Quezon had to
appropriate funds for the maintenance of the said high school when the income from the disputed
lands became insufficient; that the said high school is not entirely self-supporting; that the alleged
average annual net income (P7,000.00) of the two parcels of land is exorbitant and unfounded; that
the claims or demands of the plaintiffs had been released or had prescribed; and that the plaintiffs
are in estoppel, aside from a counter-claim of P5,000.00 representing damages suffered by reason
of the groundless and malicious suit; and accordingly prayed for the dismissal of the complaint and
for the confirmation of the valid claim of the defendant governor as trustee and the municipality of
Tayabas as cestui que trustent over the two parcels of land in the concept of a permanent
testamentary grant for the establishment and perpetual maintenance and operation of the Luis Palad
High School.

The plaintiffs filed their answer to the counterclaim dated June 28, 1958 averring, among others, that
the defendants being political institutions authorized by law to employ the services of government
counsel receiving salary from the government, have not suffered and could not suffer damages.

In a petition dated July 22, 1950, the plaintiffs prayed for the exclusion from the complaint as party
plaintiffs the names of Victoria Queano, Jose Palomera, Concepcion Palomera, Edgardo Obciana,
Celso Zafranco and Ernesto Zafranco on the ground that the testator Luis Palad died without
ascendants or descendants but survived by his brothers Policarpio, Victor and Leopoldo; that
Leopoldo died without issue while Victor died earlier than the testator Luis Palad; that the persons
sought to be excluded from the complaint are the grandchildren of Victor Palad who lost whatever
successional right he had over the lots in question to Policarpio Palad, the only brother who survived
the testator Luis Palad, by right of accretion.

In an order dated July 25, 1958, the Court granted the aforesaid petition for exclusion; but
subsequently the co-plaintiffs, whose names were deleted from the complaint, filed on August 29,
1958 a motion for intervention claiming that they are likewise heirs and successors-in-interest of the
deceased Luis Palad and his nieces Segunda and Emilia, who are children of Victor Palad. Plaintiffs
Miguel Palad, Fe Palad and Galo Nosce filed their answer dated Sept. 4, 1958 to the motion for
intervention.

Upon motion of the plaintiffs dated December 12, 1962, for judgment on the pleadings, the trial court
rendered on December 28, 1964 the appealed decision.

In a decision rendered on December 10, 1924, the Supreme Court held that the said testamentary
disposition in the holographic will of the late Luis Palad dated January 25, 1892 created a trust for
the establishment and maintenance of a secondary school to be financed with the income of the two
lots aforesaid for the benefit of the inhabitants of the town of Tayabas, thus:

It is a well-known rule that testamentary dispositions must be liberally construed so

as to give effect to the intention of the testator as revealed by the will itself. Applying
this rule of construction it seems evident that by the clause in question the testator
proposed to create a trust for the benefit of a secondary school to be established in
the town of Tayabas, naming as trustee the ayuntamiento of the town or if there be
no ayuntamiento, then the civil governor of the Province of Tayabas.
 ... . There can therefore be but very little doubt that the governor of the Province of
Tayabas, as the successor of the civil governor of the province under the Spanish
regime, may act as trustee in the present case.

In regard to private trusts it is not always necessary that the cestui que trust should
be named, or even be in esse at the time the trust is created in his favor. ... .

xxx xxx xxx

But counsel argues that assuming all this to be true the collateral heirs of the
deceased would nevertheless be entitled to the income of the land until the cestui
que trust is actually in esse. We do not think so. If the trustee holds the legal title and
the devise is valid, the natural heirs of the deceased have no remaining interest in
the land except their right to the reversion in the event the devise for some reason
should fail, an event which has not as yet taken place. From a reading of the
testamentary clause under discussion it seems quite evident that the intention of the
testator was to have the income of the property accumulate for the benefit of the
proposed school until the same should be established. 2

Implementing the trust thus created, the Philippine Legislature enacted Act No. 3232 approved on
November 27, 1925, which established the Luis Palad Rural High School as an agricultural high
school under the direction, supervision and control of the Director of Education, the expenses for the
establishment and maintenance of which shall be paid out of the funds left by the late Luis Palad and
any other funds which may be donated by the Government or any of its dependencies or any other
persons. The Director of Education is authorized to receive from the provincial governor as trustee of
the estate of Luis Palad the sums necessary for the proper operation, construction and upkeep of
the permanent buildings of the School. Said Act No. 3232 was amended by Act No. 3462 approved
on December 7, 1928 to the effect that the funds for the school shall be disbursed subject to the
approval by a Board composed of the Director of Education, the governor of Quezon province and
the municipal president of the town of Tayabas and that the Director of Education is authorized to
receive from the provincial governor as trustee sums necessary for the proper operation, the
construction and upkeep of the permanent buildings of the school as well as for the acquisition of
land whereon to erect such buildings. Act No. 3757 approved on November 26, 1930 further
amended the aforesaid two laws by converting the said agricultural school into a regular high school
to be known as the Luis Palad High School.

Appellants claimed that the trial court erred in (1) holding that the Supreme Court ruled in the case
of Government vs. Abadilla  that the trust was a permanent one created for the benefit of the Luis
3

Palad High School and is a perpetual charge upon the land devised, (2) in not declaring the
termination of the usufruct of the trust estate as provided in Art. 515 of the Spanish Civil Code, and
(3) in not ordering the dissolution of this trusteeship under Art. 870 of the New Civil Code.

As to the nature of the trust created by the last will and testament of the late Luis Palad, the law of
the case is the decision in Government vs. Abadilla, et al., supra, that "the testator proposed to
create a trust for the benefit of a secondary school to be established in the town of Tayabas, naming
as trustee ... the civil governor of the province of Tayabas (now Quezon) ..."  and that "if the trustee
4

holds the legal title and the devise is valid, the natural heirs of the deceased have no remaining
interest in the land except their right to the reversion in the event the devise for some reason should
fail, an event which has not as yet taken place. From a reading of the testamentary clause under
discussion it seems quite evident that the intention of the testator was to have the income of the
property accumulate for the benefit of the proposed school until the same should be established." 5
Article 515 of the Old Spanish Civil Code prohibiting the creation of a usufruct for more than thirty
(30) years in favor of any town, province or association, does net apply to the instant case; because
what was constituted by the last will and testament of the late Luis Palad is a trust, not a usufruct, as
held by the Supreme Court in Government vs. Abadilla, et al., supra.

The pretension of appellants that the trust votes the rule against trusts in perpetuities citing
Thompson on Wills,  as well as Art. 785 of the Spanish Civil Code  providing that dispositions
6 7

imposing perpetual prohibitions upon alienation shall be inoperative  was squarely considered and
8

refuted by the Supreme Court in said Abadilla case, thus: "As the law of trusts has been much more
frequently applied in England and in the United States than it has in Spain, We may draw freely upon
American precedents in determining the effect of the testamentary trust here under consideration,
especially so as the trusts known to American and English equity jurisprudence are derived from
the fidei commissa of the Roman law and are based entirely upon Civil Law principles,"  adding that
9

the testamentary trust is in harmony with Art. 788 of the Spanish Civil Code regarding the obligation
of the heir to make periodic investments of specified sums   , and finally stating that:
10

... unless the devise contravenes some other provision of the Code it must be
upheld.

We have been unable to find any such provision. There is no violation of any rule
against perpetuities: the devise does not prohibit the alienation of the land devised. It
does not violate article 670 of the Code: the making of the will and the continuance or
quantity of the estate of the heir are not left in the discretion of a third party. The
devisee is not uncertain and the devise is therefore not repugnant to article 750 of
the Civil Code. The provincial governor can hardly be regarded as a public
establishment within the meaning of article 748 and may therefore receive the
inheritance without the previous approval of the Government.  11

Article 870 of the New Civil Code, which regards as void any disposition of the testator declaring all
or part of the estate inalienable for more than 20 years, is not violated by the trust constituted by the
late Luis Palad; because the will of the testator does not interdict the alienation of the parcels
devised. The will merely directs that the income of said two parcels be utilized for the establishment,
maintenance and operation of the high school.

Said Article 870 was designed "to give more impetus to the socialization of the ownership of property
and to prevent the perpetuation of large holdings which give rise to agrarian troubles."   The trust
12

herein involved covers only two lots, which have not been shown to be a large landholding. And the
income derived therefrom is being devoted to a public and social purpose — the education of the
youth of the land. The use of said parcels therefore is in a sense socialized. There is no hint in the
record that the trust has spawned agrarian conflicts.

And even if the trust herein involved falls within the prohibition of the said Article 870, the same
cannot be given retroactive effect, the testator having died long before the effectivity of the New Civil
Code.  13

Appellants seem to cling to the statement in the decision in the Abadilla case that: "From a reading
of the testamentary clause under discussion it seems quite evident that the intention of the testator
was to have the income or the property accumulate for the benefit of the proposed school until the
same should be established ."  14

They argue that upon the establishment of the school in 1932, the trust ceased, as the object or
purpose thereof had been accomplished.
Appellants' position accords a very restrictive meaning to the term "established" as employed in the
aforequoted portion of the decision. The word "established" should not be limited to the initial
construction of the high school, which alone will not serve the purpose of the testamentary
disposition of the testator, if the maintenance and operation of the school are excluded from its
scope. To give full effect to the intention of the testator, the said portion of the decision should be
read together with the preceding statement therein that "it seems evident that by the clause in
question the testator proposed to create a trust for the benefit of a secondary school to be
established in the town of Tayabas, ... ."   The benefit that could be derived from a secondary school
15

cannot be enjoyed by the residents of the town of Tayabas if the school is not in operation or
functioning. It can only function and operate if the needed funds are provided therefor. This the
testator realized only too well and therefore willed that the income from the two lots — Lots Nos.
3464 and 3469 — should be utilized for the maintenance and upkeep of the school including the
reconstruction, repairs, or expansion of the physical plants and other facilities as well as hiring of
faculty members and administrative staff and personnel of the high school as may be compelled by
increase in enrollment and the requirements of efficient instruction.

To establish means "to settle or fix firmly; ... place on a permanent footing"   ; or "to originate and
16

secure the permanent existence of, to found, to institute, to create and regulate, as of a colony,
estate or other institution or to place upon a secure foundation.   Thus to "establish a company for
17

any business means complete and permanent provision for carrying on that business, and putting a
company in operation may well include its continued as well as its first or original operation ... ." 
18

The high school edifice and its equipment, it left to deteriorate until they are completely destroyed,
would not have any permanent existence, if they are not repaired or reconstructed or not properly
maintained. As We ruled in the Abadilla case,   the trust ceases only if the devise fails — if the
19

maintenance of the high school is abandoned and its operation stopped. Since the school continues
to operate and is being maintained, with the income from the two parcels of land subject of the trust,
and donations from the government and other sources, the devise has not yet failed. It should be
emphasized that the income alone of the two lots does not suffice to support the school. Under Acts
Nos. 3232 and 3462, funds donated by the government, its dependencies and other persons
contribute to the establishment, maintenance and upkeep of the institution.

WHEREFORE, the appealed judgment is hereby affirmed, and the appeal is hereby dismissed with
costs against petitioners-appellants. So ordered.

G.R. No. L-13361           December 29, 1959

ROSARIO GREY VDA. DE ALBAR and JOSE M. GREY, petitioner,

vs.
JOSEFA FABIE DE CARANGDANG, respondent.

Jose W. Diokno for petitioners.

Ambrosio Padilla, Ciriaco Lopez, Jr., and Santiago P. Blanco for respondent.

BAUTISTA ANGELO, J.:
Doña Rosario Fabie y Grey was the owner of the lot in the City of Manila with a building and
improvements thereon erected at 950-956 Ongpin as evidenced by Original Certificate of Title No.
5030, and by a will left by her upon her death which was duly probated she devised the naked
ownership of the whole property to Rosario Grey Vda. de Albar, et al. but its usufruct to Josefa Fabie
for life.

The pertinent provision of the will reads as follows: "Lego a mi a ahijada menor de edad, Maria
Josefa de la Paz Fabie, en usufructo vitalicio las rentas de las fincas . . . en calle Ongpin, Numeros
950 al 956 del Distrito de Santa Cruz, Manila, . . . y prohibio enjane, hipoteque, permuta o transfiera
de algun modo mientras que ella sea menor de edad." Said property was registered in the name of
Rosario Grey Vda. De Albar, et al. as naked owners of the right of Josefa Fabie as life usufructuary
was expressly noted on the new title. Pursuant to the 9th clause of the claim of the will, an
encumbrance was likewise noted on the title prohibiting the usufructuary from selling, mortgaging or
transferring her right to usufruct during her minority.

During liberation, as a consequence of the fire that gutted the building in many portions of Manila,
the building on the Ongpin lot was burned, leaving only the walls and other improvements that were
not destroyed by the fire.

One Au Pit, a Chinaman, offered to lease the property for a period of five years a monthly rental of
P500.00, at the same time agreeing to construct on the lot a new building worth P30,000 provided
the naked owners as well as the usufructuary sign the agreement of the lease. As the usufructuary
maintains that she has the exclusive right to cede the property by lease and to receive the full rental
value by virtue of her right to usufruct while on the other hand the naked owners maintain that the
right of usufruct was extinguished when the building was destroyed, the right of the usufructory being
limited to the legal interest on the value of the lot and the materials, in order that the agreement of
lease may be affected, the parties agreed on a temporary compromise whereby the naked owners
would receive P100.00, or 20% of the monthly rental of P500.00 and the usufructuary the balance of
80% or P400.00 of said monthly rental. It was likewise stipulated in the agreement that the title to the
building to be constructed would accrue to the land upon it completion as an integral part of the lot
covered by the transfer certificate of title issued in the name of the naked owners but subject to the
right of usufruct of Josefa Fabie. The parties expressly reserved the right to litigate their respective
claims after the termination of the contract of lease to determine which of said claims was legally
correct.

By reason of the destruction of the building on the Ongpin property, the United States War Damage
Commission approved the claim that was presented for the damage caused to the property the
amount in the amount of P8,574.00 which was paid to and received by the naked owners. In the
meantime, the usufructuary paid the real estate taxes due on the property at Ongpin for the years
1945 to 1952 in the total amount of P1,989.27, as well as the real estate taxes for the years 1953
and 1954 in the annual sum of P295.80.

On October 2, 1952, Rosario Grey Vda. de Albar, et al. commenced the present action to settle the
dispute and conflicting views entertained by the parties in line with their agreement and prayed that
judgment be rendered declaring that the usufruct in favor of Josefa Fabie is now only limited to
receiving the legal interest on the value of the land, and that her right to receive any rental under the
contract entered into between the parties has already ceased.

On August 10, 1953, the trial court rendered judgment the dispositive part of which reads:

EN VIRTUD DE TODO LO CUAL, el Juzgaso promulga decision a favor de la demandada

usufructuaria, declarando;
 (a) Que su usufructo vitalico continua sobre a la finca en Ongpin con derecho exclusivo de
percibir durante su vida la totalidad de sus rentas, sin que los demandantes tengan derecho
de in miscuirse en la administracion de dicha finca;

(b) Con derecho de percibir el 6% de la cantidad de P8,574.00 percibidos como

indemnizacion de guerra desde Enero 11, 1959; lawphi1 .net

(c) Al reembolso de la suma de P1,989.27 pagados o abanados por la demandada como

pagos del amillaramiento desde la fecha de la Contestacion, Octubre 22, 1953;

(d) Mas la suma de P2,000.00 como daños y perjuicios en forma de honorarios de abogado
y gastos de litigio.

(e) Con las costas a cargo de los demandantes.

On appeal by plaintiffs, the Court of Appeals modified the decision as follows:

Wherefore, we hereby affirm the decision appealed from in so far it holds that appellee's right
of life usufruct subsists and is in full force and effect upon the Ongpin lot and the building
now existing thereon, and that she is entitled to receive from
appellants the legal interest of 6% interest per annum of the amount of P3,272.00 from the
time it was actually received from the Philippine War Damage Commission for the whole
period of the usufruct and appellants are hereby required to give sufficient security for the
payment of such interest, and we hereby reverse said decision, declaring that
reimbursement to appellee of the sum of P1,987.27 paid by her for real estate taxes is
deferred until the termination of the usufruct, and that she is not entitled to any amount for
attorney's fees. Without pronouncement regarding costs.

Plaintiffs interposed the present petition for review.

The main issue to be determined hinges on the interpretation of that portion of the will which devices
to Josefa Fabie all the rentals of the property situated in Ongpin and Sto. Cristo Streets, City of
Manila. The pertinent provision of the will reads: "Lego a mi ahijada menor de edad Maria Josefa de
la Paz Fabie, en usufructo vitalico las rentas de las fincas situadas en la calle Santo Cristo . . . y en
la Calle Ongpin, Numeros 950 al 956 del Distrito de Santa Cruz Manila." Petitioner contend that this
provision of the will should be interpreted as constituting only a life usufruct on the rentals of the
buildings erected on the lands and that once these buildings are destroyed the usufruct is
extinguished. Respondent, on the other hand, contends that the provision should be interpreted as
constituting a life usufruct both on the buildings and the lands because the former cannot be
separated from the latter.

In Lopez vs. Constantino, 74 Phil., 160, we said:

It may indeed seem at first blush that the rents out of which the pension was payable were
earned by or paid for the building only, independently of the lot on which it was erected; but
further reflection will show that such impression is wrong. When both land and building
belong to the same owner, as in this case, the rents on the building constitute an earning of
the capital invested in the acquisition of both land and building. There can be a land without
a building, but there can be no building without land. The land, being an indispensable part
of the rented premises cannot be considered as having no rental value whatsoever.
(Emphasis supplied)
In another part of the decision, this Court said: "Since appellant's participation in the rents of the
leased premises by way of life pension was part of the consideration of the sale, it cannot be
deemed extinguished so long as she lives and so long as the land exists, because that land may be
rented to anyone who may desire to erect a building thereon." (Emphasis supplied).

From the above, it is clear that when the deceased constituted the life usufruct on the rentals "fincas
situadas" in Ongpin and Sto. Cristo streets, she meant to impose the encumbrance both the building
and the land on which it is erected for indeed the building cannot exist without the land. And as this
Court well said, "The land, being an indispensable part of the rented premises cannot be considered
as having no rental value whatsoever." Moreover, in the Spanish language, the term "fincas" has a
broad scope; it includes not only building but land as well. (Diccionario Ingles-Español, por Martines
Amador) Since only the building was destroyed and the usufruct is constituted not only on the
building but on the land as well, then the usufruct is not deemed extinguished by the destruction of
the building for under the law usufruct is extinguished only by the total loss of the thing subject of the
encumbrance (Article 603, old Civil Code).

In our opinion, this case comes under Article 517 of the same Code which provides: "if the usufruct
is constituted on immovable property of which a building forms part, and the latter should be
destroyed in any manner whatsoever, the usufractuary shall have a right to make use of the land
and materials." This is a temporary measure calculated to maintain the usufruct alive until the very
thing that has been destroyed be reconstructed or replaced. The reason is obvious: since the
usufruct has not been extinguished by the destruction of the building and the usufruct is for life as in
this case, it is but fair that the usufructuary continue to enjoy the use of the land and the materials
that they may be constructed on the land. To hold otherwise would be to affirm that the usufruct has
been extinguished.

The question that now arises is: Who is called upon to undertake the new construction, and at
whose cost? Of course, this is addressed to the wisdom and discretion of the usufructuary who, to all
intents and purposes is deemed as the administrator of the property. This has been clarified in the
case of Fabie vs. Gutierrez David, 75 Phil., 536, which was litigated between the same parties and
wherein the scope of the same provision of the will has been the subject of interpretation. The
following is what this Court said:

Construing said judgment in the light of the ninth clause of the will of the deceased Rosario
Fabie Grey, which was quoted in the decision and by which Josefa Fabie was made the
usufructuary during her lifetime of the income of the property in question, we find that the
said usufructuary has the right to administer the property in question. All the facts of
administration — to collect the rents for herself, and to conserve the property by making all
necessary repair and praying all the taxes, special assessments, and insurance premiums
thereon — where by said judgment vested in the usufructuary. The pretension of the
respondent Juan Grey that he is the administrator of the property with the right to choose the
tenants and to dictate the conditions of the lease is contrary to both the letter and spirit of the
said clause of the will the stipulation of the parties, and the judgment of the court. He cannot
manage or administer the property after all the acts of management or administration have
been vested by the court, with his consent, in the usufructuary.

In the instant case, however, a happy comprehensive was reached by the parties in view of the offer
of one Chinaman to lease the land for five years and to construct thereon a building worth
P30,000.00 upon the condition that upon its completion the building would become an integral part
of the land in which it is erected. This means that its naked ownership should belong to petitioners
and its beneficial ownership to respondent. This is a happy medium which fits into the purpose
contemplated in Article 517 above referred to: that the usufruct should continue on the land and the
new improvement that may be constructed thereon.

We therefore hold that the Court of Appeals did not err in finding that appellee's right of usufruct
subsists and is in full force and effect upon the Ongpin lot and the building existing thereon, affirming
the decision of the trial court.

Petitioners' contention that the Court of Appeals erred in ruling that the damages paid by the War
Damage Commission to said petitioners was intended to be an indemnity for the destruction of the
building in question and in ordering them to pay respondent 6% interest per annum on the amount of
damage paid is also untenable, for it cannot be denied that a war damage payment is intended to
replace part of the capital invested in the building destroyed or to assuage somewhat the material
loss of its owner. It cannot be maintained that the war damage payments are intended to be a mere
gesture of appreciation of the People of the United States of America towards our people for its a
well-known fact that countless of our countrymen who suffered in the last war of whose kin-folks lost
their lives did not receive any war damage payment because they have no damaged property that
could be indemnified. The ruling that 6% interest per annum of such war damage payment should be
paid to respondent from the time it was actually received to the end of the life of the usufruct should,
in my opinion, be modified in the sense that the obligation should only be valid up to the date the
new building was constructed by the Chinaman who leased the property upon the theory that the
amount of damage paid by the War Damage Commission which was intended to replace the old
building has in turn been replaced by the new. However, the majority as of the opinion that same
should also be subject to usufruct for life because it has not been used in the construction that the
naked owners may turn over the money to the usufractuary so that she may use it during her lifetime
subject to its return to them after her death if they desire to be relived of this encumbrance.

We find, however, merit in the contention that the real estate taxes paid by respondent in her
capacity as usufractuary for several years previous to the present litigation should be paid by her, as
she did, instead of by petitioners not only because she bound herself to pay such taxes in a formal
agreement approved by the court in Civil Case No. 1569 of the Court of First Instance of Manila
(Fabie vs. Gutierrez David, supra). In the case, which involved the same parties and the same
properties subject to usufruct, the parties submitted an amicable agreement which was approved by
the court wherein the usufructuary, herein respondent, bound herself to pay all the real estate taxes,
special assessment and insurance premiums, and make all the necessary repairs on each of the
properties covered by the usufruct and in accordance with said agreement, respondent paid all the
taxes for the years 1945 to 1954. In said agreement, it was also stipulated that the same "shall be in
effect during the term of the usufruct of each of the parties." There is therefore no valid reason why
petitioners should now be ordered to reimburse respondent for all the real taxes she had paid on the
property. In this respect, the decision of the Court of Appeals should be modified.

Wherefore, with the modification that petitioners should not be made to reimburse the real estate
taxes paid by the respondent for the years abovementioned, the decision appealed from is affirmed
in all others respects, without pronouncement as to costs.

Labrador, Endencia, Barrera and Gutierrez David, JJ., concur.

 
Separate Opinions

MONTEMAYOR, J., concurring and dissenting:

I concur in the learned opinion of the majority, penned by Mr. Justice Bautista Angelo, with the
exception of that portion thereof on page 10, which holds that the payment to the usufructuary of the
6% interest per annum of the war damage payment should end on the date of the construction of the
new building by the Chinaman who leased the property, from which ruling I dissent.

It will be noticed that both the trial court and the Court of Appeals were of the opinion that said
payment of interest should continue during the lifetime of the usufruct. I agree to said opinion. The
reason is obvious. The war damage payment is the equivalent of the building destroyed. Since the
usufractuary had a right to the use or the fruits of the building, she therefore had the right to the
interest on the war damage payment during her lifetime. In my opinion, the construction of the new
building does not relieve the owners of the land who received the war damage payment of
containing the payment of interest. He said owners of the land used the war damage payment to
construct the building, then they would be free from paying interest because the rent of the new
building would correspond to the interest on the war damage payment. But the fact is the new
building was not constructed by the owners of the land, but by the Chinese lessee.

The majority opinion states that the usufractuary would then be receiving the interest on the war
damage payment and also the rent of the new building — a sort of double benefit, which is said to be
unfair. That is one view. The other view is that the end of the usufruct, the owners of the land or their
heirs shall have received not only equivalent or value of the land building destroyed, in the form of
the war damage payment but also the new building constructed absolutely at no cost or expense to
them — also a double benefit, which might also be regarded as unfair following the point of view of
the majority opinion. So in this respect of double benefit, both parties stand on the same footing.
Viewed thus, there is nothing unfair in the arrangement.

Furthermore, we should not lose sight of the fact that usufructuary, as the majority opinion well
states has a right to the use and the fruits not only of the improvements, such as buildings on the
land, but the land itself. Consequently, anything built on the land would be subject to the usufruct,
and the fruits thereof, such as rents, would go to the usufructuary. This naturally includes the interest
on the war damage payment for the old building destroyed during the war, which payment is the
equivalent of said building. Had the owners of the land used the sum to add another story or
extension of the building constructed thereon by the Chinese lessee, there would surely be no
question that any rent therefrom would belong the usufractuary, because then it could be regarded
as improvement on the land, which, as already said, is the equivalent or a reproduction of said war
damage payment of their own use did not relieve them of the obligation of paying the interest on the
same to the usufractuary, because otherwise, they would be having not only the naked ownership of
the equivalent of said building, but also its fruits.

The foregoing are some of the reasons for my dissent.

G.R. No. L-3099             May 21, 1951

CIPRIANA GONZALES, plaintiff-appellee,
vs.
PURIFICACION, GUILLERMO, EUSTACIO AND FAUSTINA, all surnamed DE DIOS, assisted by
their guardian CARLOTA INDUCIL defendants-appellants.

Celestino de Dios for appellants.

Rosendo Tansinsin for appellee.

BAUTISTA ANGELO, J.:

Plaintiff is the owner of a fishpond situated in the barrio of Bambang, Bulacan, adjacent to the
fishpond of defendants. The only source of water of her fishpond is Kay Pateng River, to which it has
neither ingress nor egress, because it has been completely cut off from it by the fishpond of the
defendants. After the several attempts made by her to obtain from the defendants a right of way to
and from said river to furnish a source of water to her fishpond proved futile, she filed the present
action in the Court of First Instance of Bulacan.

Upon agreement of the parties, the court designated one Felipe Asuncion, a surveyor, to investigate
the premises and study the most convenient place through which an aqueduct may be constructed
for the supply of water needed by the fishpond of the plaintiff, who accordingly investigated the
property and submitted his report. After the parties have presented their evidence, the court
rendered judgment, the dispositive part of which is as follows:

WHEREFORE the Court hereby renders judgment as follows: (a) the plaintiff to have a right
of passage for water from the river Kay Pateng to her fishpond, on the northwest side of the
dyke represented by the line connecting corners 6 and 7 of Psu-27824 lot No. 8 of the
Ariston de Dios, by constructing a canal eight meters wide and about one hundred meters
long; (b) the plaintiff will construct at her expense a similar dyke, of the same height and
width alongside the said canal opposite the old dyke; and (c) the plaintiff pay the defendants
the sum of Seven hundred and ninety-eight pesos and sixteen centavos (798.16) as just
compensation including consequential damages. Without pronouncement as to costs.

IT IS SO ORDERED.

Not satisfied with this judgment, defendants appealed to the Court of Appeals, the latter court
affirming the judgment with costs against the appellants. The case now before us on by way
of certiorari.

The only question which is presented to us for determination is whether there is law which justifies
the grant to the appellee of an easement of water over the land of the appellants in order to give to
the appellee a source of water to irrigate her fishpond.

The Court of Appeals holds the view that the claim of the appellee finds support in the provisions of
articles 118 to 125 of the Law of Waters 1866 and articles 557 and 558 of the Civil Code, which were
also relied upon by the court a quo. On this point the Court of Appeals said: "A perusal of the
provisions of the Law of Waters on this point shows that the easement of aqueduct is granted for any
of the purposes mentioned in article 113 of said law, such as irrigation, public bath, or use of
factories and drainage. The provisions of the Civil Code convey the same idea as to the use for
which the right of way may be needed. There is nothing, however, in the provisions of both the Law
of Waters and the Civil Code above mentioned, that prohibits the use of water for purposes other
than those mentioned in said laws. Plaintiff-appellee has proven that she has the right to draw water
from Kay Pateng River to make her fishpond as productive as the other surrounding fishponds."
We agree with the Court of Appeals that articles 557 and 558 of the Civil Code can be invoked in
support of the claim of the appellee. Article 557 provides that "any person who wishes to use upon
his own land any water of which he may have the control is entitled to take it through the intervening
estates, subject to the obligation of indemnifying the owners thereof." The phrase "of which he may
have the control" should be interpreted in connection with article 558 (1) which means that he has a
right to dispose of the water. This was interpreted to mean one who has obtained from the
government a grant to use water from a river (Gonzales vs. Banzon, 51 Phil., 15). The use to which
the water may be applied must also be interpreted in the same way: that the water be sufficient for
the use intended (558[1]). And according to Manresa "Puede el agua solicitarse para cualquiera de
los usos necesarios de la vida." (4 Manresa, 704, 3rd Ed.). In fact these article were applied to a
grant to use water from a river for irrigation purposes in the case mentioned above.

But as to the second canal, however, the defendant Mariano B. Banzon has filed a
counterclaim alleging that he has obtained from the Director of Public Works a grant to use
50 liters of water per second from the Talisay River to irrigate his lands, and, in accordance
with the provision of article 557 in connection with article 558 of the Civil Code, he asks that
he be authorized to open, maintain and preserve a canal similar to the second one
mentioned on plaintiff's land upon payment of the proper indemnity to the plaintiff, alleging
that the place where said canal passes is the most convenient and least onerous to third
parties, and that there is no other place more appropriate and less prejudicial.

The defendant Mariano B. Banzon undoubtedly has a right to compulsory easement of

aqueduct upon payment of indemnity since, although he is not the owner of the waters of the
Talisay River, he can dispose of 50 liters of the same per second, by virtue of the grant from
the Director of Public Works. This may be inferred from the provision of article 125 of the
Law of Waters of August 3, 1866, which authorizes the owner of the land on which it is
sought to impose the compulsory easement of aqueduct, to object when the applicant is not
the owner or grantee of the water.

To enjoy the right granted by article 557 of the Civil Code, the requisites established in article
558 of the same code must be complied with. (Gonzales vs. Banzon, supra).

If a person who has obtained from the Government a grant to use water a river from irrigation was
given the right to construct a canal over the intervening lands of other private owners upon payment
of indemnity, no valid reason is seen for not granting the same privilege to the herein appellee who
desires to draw water from a river for the use of her fishpond. A fishpond comes within the
classification of agricultural land and is regarded as an important source of revenue (Molina vs.
Rafferty, 38 Phil. 167). It is generally constructed in low lands or swampy places and draw its
breadth of life from brooks and rivers. It is just as rich and valuable as any piece of agricultural land
and in some regions it is regarded as the main source of wealth. It is an undertaking to be
encouraged and promoted, for it contributes to the economic development of the people. Our law
should be interpreted in a sense that may give it life if it can be done without doing violence to
reason or to any rule of statutory construction.

There can, therefore, be no doubt with regard to the right of the appellee to draw the water she
needs for her fishpond through the land of the defendants if she has obtained the necessary permit
to use the water from the Government. The law requires that this permit be obtained from the
Director of Public Works. (Sec. 14 of Act 2152, as amended by Act 3208; The Philippine Sugar
Estate Development Co. vs. Unson and Williams, 53 Phil., 599.) While there is no proof to this effect,
at least this matter is not an issue in this case. This point is not disputed. The only important
question to be determine is how and where the right should be exercised, but this is a question of
fact which the Court of Appeals has determined and which it is not now within our province to pass
upon. The finding of said Court on this matter is final.

Wherefore, the petition is hereby dismissed, without pronouncement as to costs.

G.R. No. L-21727 May 29, 1970

CRISPINA SALAZAR, petitioner,
vs.
GUILLERMO GUTIERREZ, and DAMASO MENDOZA, respondents.

Jaime L. Guerrero and Renato B. Bercades for petitioner.

Tañada, Teehankee & Carreon and Jose P. Santillan for respondents.

MAKALINTAL, J.:

Judgment was rendered by the Court of First Instance of Bataan (Civil Case No. 2269) in favor of the
plaintiff, Crispina Salazar, now petitioner; on appeal by the defendants, Guillermo Gutierrez and
Damaso Mendoza, the Court of Appeals reversed (CA-G.R. No. 19489-R); and the plaintiff elevated
the case to us for review by certiorari.

Crispina Salazar is owner of a piece of land (Lot 436 of the Cadastral Survey of Balanga) situated in
Tuyo, Balanga, Bataan, covered by Transfer Certificate of Title 1578 issued by the Register of
Deeds of the said province, and acquired by her from the Municipality of Balanga on May 4, 1949.
The lot is bounded on the northeast by Lot 361, on the southeast by Sapang Tuyo, on the southwest
by Lot 435, and on the northwest by Lot 433.

Lot 433 was registered under the Torrens system on July 23, 1923, with Original Certificate of Title
2162. Ownership passed to respondent Guillermo Gutierrez by inheritance in 1927, and Transfer
Certificate of Title No. 1059 was issued in his name on June 11, 1928. No annotation of any lien or
encumbrance affecting the land appears on either title.

Before the present controversy arose, Lot 436 and some of the surrounding estates, including Lot
433, were irrigated with water from Sapang Tuyo, a public stream, flowing through a dike that
traversed Lots 431, 434, 433 and 461. The portion of this dike that passed through Lot 433 branched
near the boundary between this lot and Lot 434 into a canal which ran across the rest of Lot 433 up
to Lot 436. It was with the water flowing through this canal that Lot 436 used to be irrigated.

On February 24, 1953 respondent Damaso Mendoza, a lessee of Lot 433, demolished the said
canal, thereby stopping the flow of the water and depriving Crispina Salazar's Lot 436 of the
irrigation facilities which it had formerly enjoyed. Her requests that the canal be rebuilt and the water
flow restored having been turned down, Salazar commenced the present suit on March 2, 1953,
praying that these reliefs be granted her by the Court and that the defendants be ordered to pay her
actual damages in the sum of P900, moral damages in the sum of P5,000, and P1,000 for attorney's
fees, plus costs.
The trial court issued a writ of preliminary injunction as prayed for by the plaintiff, ordering the
defendants to restore the demolished portion of the canal and to refrain from again demolishing the
same pending trial, but the writ was dissolved on March 9, 1953, upon a counterbond filed by the
defendants. The latter answered with their own counterclaim for damages, denied the substantial
averments of the complaint and put up a number of affirmative defenses.

After trial, the Court of First Instance of Bataan, finding that the demolished canal had been in
existence for more than thirty years and that the big dike from which it extended had been
constructed for the use of Lot 436 as well as several other lots belonging to different owners,
rendered judgment on April 10, 1956, ordering the defendants to restore at their expense the canal
in question, to connect it with the canal found in Lot 436 and to cause the corresponding annotation
of the encumbrance on Transfer Certificate of Title 1059 covering Lot 433; and ordering the
defendants to pay the plaintiff the sum of P1,360 annually beginning the agricultural year 1956-1957
until the restoration of the canal, P4,700 as actual damages, P5,000 as moral damages and P1,000
as attorney's fees, plus costs.

On July 26, 1963, the Court of Appeals reversed the decision of the Court of First Instance and held
that since the easement of aqueduct over Lot 433 for the benefit of Lot 436 was a voluntary one, the
same was extinguished when Lot 433 was registered on July 23, 1923 and the corresponding
certificate of title was issued without the annotation of said easement as a subsisting encumbrance.

The respondents have raised a preliminary procedural question, alleging that Section 1 of Rule 46
(now Section 1 of Rule 45), requiring proof of service of a copy of the petition upon the Court of
Appeals, was not complied with. Such omission, however, is not of jurisdictional import. In an appeal
by certiorari upon a question of law, as distinguished from an original petition for certiorari under
Rule 65, the Court of Appeals is merely a nominal party respondent. The original parties in the trial
court are the same parties in the appeal.

The main issue as set forth in the decision of the Court of Appeals is the nature of the easement of
aqueduct claimed by the petitioner. If voluntary, according to the said Court, the easement was
extinguished upon the registration of Lot 433 in 1923, pursuant to Section 39 of Act No. 496, which
provides:

But if there are easements or other rights appurtenant to a parcel of registered land
which for any reason have failed to be registered, such easements or rights shall
remain so appurtenant notwithstanding such failure and shall be held to pass with the
land until cut off or extinguished by the registration of the servient estate, or in any
other manner. (Emphasis supplied).

In arriving at the conclusion that the easement in question was voluntary and not legal or
compulsory, the Court of Appeals took into consideration the provisions of Articles 557 and 558 of
the Spanish Civil Code, now Articles 642 and 643 of the new Civil Code respectively, as follows:

ART. 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.

ART. 643. One desiring to make use of the right granted in the 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.

Specifically the appellate court held that there is no evidence to show that the petitioner has
complied with the three requisites laid down in Article 643 in order to entitle her to claim a legal
easement of aqueduct under Article 642. It bears repeating that the finding thus made, although
apparently factual in character, is premised upon supposed absence of evidence, and therefore is
reviewed by this Court if the premise is clearly contradicted by the record or unjustified upon other
considerations which logically lead to a different conclusion, but which the decision under review did
not take into account.

On the first requisite of Article 643 — that the petitioner must prove that he can dispose of the water
and that it is sufficient for the use for which it is intended — there is the statement of the trial court
that the disputed canal had been in existence since the Spanish regime, or at least prior to the
original registration of Lot 433 in 1923, and that of the Court of Appeals itself confirmatory of this
second alternative finding. If, as thus found, the petitioner had been using water from Sapang
Tuyo to irrigate Lot 436 since she acquired said lot in 1949, as the Municipality of Balanga had been
doing before her, and that such use had lasted continuously for at least thirty years, it is a fair
presumption that she had a right to do so and that the water she could dispose of was sufficient for
the purpose. Indeed it would be a superfluity to require her to produce a permit from the proper
authorities, for even without it the right had already become vested both under Article 194 of the
Spanish Law of Waters and under Article 504 of the Civil Code, which respectively state:

ART. 194. Any person who has enjoyed the use of public waters for a term of twenty
years without objection on the part of the authorities or of any third person, shall
continue in its enjoyment, even though he may not be able to show that he secured
proper permission.

ART. 504. The use of public waters is acquired:

(1) By administrative concession;

(2) By prescription for ten years.

The extent of the rights and obligations of the use shall be that established, in the first case, by the
terms of the concession, and, in the second case, by the manner and form, in which the waters have
been used.

The third requisite of Article 643 of the Civil Code refers to the matter of indemnity to the owner of
the servient estate. As correctly pointed out by the petitioner it would be nigh impossible now to
present actual proof that such indemnity has been paid, considering the number of years that have
elapsed since the easement had first come into existence and the subsequent changes in ownership
of the lots involved. It stands to reason, however, that if the easement had continued for so long in
fact, not only before Lot 433 was registered in 1923 but for thirty years thereafter, until cut off by the
respondents in 1953 the legal requirement in question must have been complied with.
The other requisite of Article 643 is that "the proposed right of way is the most convenient and the
least onerous to third persons." The Court of Appeals stated that the petitioner has not established
this fact, and that "her own evidence reveals that her lot is abutting Sapang Tuyo on its southern
boundary, where from she can easily and directly draw the water necessary to irrigate her land." This
statement is an oversimplification. Proximity or abutment of a piece of land to a stream does not
necessarily carry with it the conclusion that water may conveniently be drawn directly therefrom for
irrigation. In the first place, the petitioner has pointed out in her brief, without contradiction by the
respondents, that the portion of her land which abuts Sapang Tuyo is precipice. Secondly, the trial
court made an ocular inspection of the premises and observed that the eastern and northeastern
portions of Lot 436 are lower than the southwestern, western and northwestern (the point where Lot
436 adjoins Lot 433) portions of the same. Finally, it would appear from the observation made by the
same court that the demolished canal is part of a system of conduits used to irrigate the lands of the
petitioner and the respondents as well as the surrounding estates belonging to other owners, and
that this system of conduits is of a permanent nature. The trial court's description bears repeating:

At the ocular inspection conducted on September 22, 1953, it was found that the
eastern and northeastern portions of Lot No. 436 are lower than the southern,
western and northwestern portions of the same; that about one-fourth (¼) only of the
lot is planted to palay and this palay is yellowish, scarce and could hardly merit
attention to produce any substantial quantity of palay; that this palay is planted in the
eastern portion of the same; that the palay planted on the land of defendant
Gutierrez and on the lot east of the land of the plaintiff is luxuriant green and had all
the earmarks of producing a good harvest; that the "pinitak" on the northwestern
portion of the land of the plaintiff is higher than the rest of the land; that on this
portion is found a canal about one and a half (1-½) meters deep which canal runs
south and parallel to the boundary line of Lot 436 owned by the plaintiff and Lot No.
435 and is one and a half (1-½) meters from this boundary; that along the southern
boundary of Lot No. 433 that separates it from Lot No. 436 is a "minangon" or a dike
and water flows continuously from one 'pinitak' to another of said Lot No. 433 up to a
point between points "15" and "14" of said lot as shown on Exhibit "A" ... that this
water passes from one "pinitak" to another through openings made on the "pilapils"
or small dikes that separate the several "pinitaks" on this Lot No. 433; that the
western side of the canal that was demolished is located on the boundary line of Lots
Nos. 433 and 434 and this boundary line is higher and some trees are found therein;
that the new canal ... is short and the old canal from point "13" to about point "7" of
Lot No. 433 on this exhibit is still in use although it is not clean; that Lot No. 434
owned by Antonio Mendoza is irrigated by two (2) pipes coming from Lot No. 431
and by a canal that comes from Lot No. 431 and by a canal that comes from the
main irrigation canal located on the boundary line of these two (2) lots 431 and 434;
that this main irrigation canal is the canal that goes through Lot No. 443 ... which
canal ends farther east of Lot 448 ...; that this canal begins from the dam farther west
of these Lots Nos. 431, 434, 433 and 436.

xxx xxx xxx

The boundary line of the two (2) lots Nos. 433 and 434 shows that it is a "minangon",
a dike. It is extraordinarily high. From this situation, it can be concluded that the canal
along this boundary line must be big. To irrigate the southern part of Lot No. 433
would not require a big and permanent canal if the same was used to irrigate the
southern part of Lot No. 433. Canal marked "W" which is a substitute canal is small
and shallow. From the remnants of the old and demolished canal, it is safe to
assume that the canal has been in existence for a long time as shown by some big
trees on the high "minangon." If it were to water only the southern part of the lot as
 claimed by defendants, it would have been the same in size as the new canal mark
"W" on Exhibit "A." The construction of the new canal marked 'W' on the exhibit is a
feeble attempt to justify the alleged purpose of the old canal, but this attempt at
coverage is laid bare by the existence of the old canal that crossed Lot No. 433 ...
Considering that the southern portion of said lot is lower than the rest of the same,
the Court believes that the openings on the dike of the old canal would be sufficient
to let water flow to the southern portions of this lot. The western portion of this lot
could have been watered from the old canal ("X") or from the existing canal ("Z") on
Exhibit "A". That being so, there is only one explanation why the old canal ("X") is in
existence and that is for the use of Lot No. 436 and other lots farther east of Lot No.
436.

It is a reasonable conclusion from the foregoing that the demolished canal supplying water to Lot
436 of the petitioner was merely extension of the system of conduits established long ago,
considering that in view of the topography of the area and the proximity of the said lot to the main
dike in Lot 433 it was more convenient to make the connection therewith than to draw water directly
from Sapang Tuyo. Article 118 of the Spanish Law of Waters allows the creation of a compulsory
easement of aqueduct for the purpose of establishing or extending an irrigation system, and there is
nothing to the contrary in the Civil Code.

In any case the respondents are hardly in a position to avail of the registration of Lot 433 in 1923
without the corresponding registration of the easement on the title as an excuse to summarily
terminate it thirty years thereafter. The original registered owner allowed the easement to continue in
spite of such non-registration: the least that can be said is that he either recognized its existence as
a compulsory servitude on his estate or voluntarily agreed to its establishment and continuance. And
the respondent Guillermo Gutierrez, as the successor-in-interest to the, said owner by inheritance, is
not an innocent third person who could plead the absence of annotation on the title. Not only was he
aware of the existence of the easement when he inherited the property in 1927, but he likewise
allowed it to continue for twenty-six years after he acquired title. He is bound both by the act of his
predecessor and by his own.

WHEREFORE, the decision of the Court of Appeals is set aside, and that of the Court of First
Instance of Bataan affirmed, with costs against the respondents.

G.R. No. 193659               June 15, 2015

SPS. FERNANDO VERGARA and HERMINIA VERGARA, Petitioners,

vs.
ERLINDA TORRECAMPO SONKIN, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari  are the Decision  dated February 24, 2010 and the
1 2

Resolution  dated September 2, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 89357, which
3

reversed and set aside the Decision dated January 4, 2007 of the Regional Trial Court of Malolos
4

City, Bulacan, Branch 19 (RTC) in Civil Case. No. 900-M-2002 and entered a new one in its stead.
 The Facts

Petitioners-spouses Fernando Vergara and Herminia Vergara (Sps. Vergara) and Spouses Ronald
Mark Sonkin and Erlinda Torrecampo Sonkin (Sps. Sonkin) are adjoining landowners in Poblacion,
Norzagaray, Bulacan. In view of the geographical configuration of the adjoining properties, the
property owned by Sps. Sonkin (Sonkin Property) is slightly lower in elevation than that owned by Sp
s. Vergara (Vergara Property). 5

When Sps. Sonkin bought the Sonkin Property sometime in 1999, they raised the height of the par
tition wall and caused the construction of their house thereon. The house itself was attached to the
partition wall such that a portion thereof became part of the wall of the master’s bedroom and
bathroom. 6

Sometime in 2001, Sps. Vergara levelled the uneven portion of the Vergara Property by filling it with
gravel, earth, and soil. As a result, the level of the Vergara Property became ev en higher than that
of the Sonkin Property by a third of a meter. Eventually, Sps. Sonkin began to complain that water
coming from the Vergara Property was leaking into their bedroom through the partition wall, causing
cracks, as well as damage, to the paint and the wooden parquet floor. Sps. Sonkin repeatedly
demanded that Sps. Vergara build a retaining wall on their property in order to contain the landfill
that they had dumped thereon, but the same went unheeded.  Hence, Sps. Sonkin filed the instant
7

complaint for damages and injunction with prayer for preliminary mandatory injunction and issuance
of a temporary restraining order against Sps. Vergara, as well as Sps. Rowena Santiago and Harold
Santiago, Dolores Vergara-Orbistondo, and Rosario Vergara-Payumo, the other possessors of the
Vergara Property. 8

In defense, Sps. Vergara, in their Answer with Compulsory Counterclaim,  claimed that Sps.
9

Sonkin’s act of raising the partition wall made the same susceptible to breakage, which therefore
cannot be attributed to them (Sps. Vergara). They likewise claimed that when they levelled their own
property by filling it with gravel and soil, they left a distance of one (1) meter from the partition wall
such that the edge of the landfill did not breach it, asserting further that there was no valid and legal
reason why they should be enjoined from exercising their proprietary rights. 10

During the trial, Sps. Sonkin presented the testimony of Engineer Ma. Victoria Mendoza, considered
an expert witness, who categorically declared that in view of the sloping terrain and the Sonkin
Property being lower in elevation than that of the Vergara Property, the Sps. Vergara were then duty
bound to provide a retaining wall because they were the ones who caused the landfill, citing Section
1202  of Presidential Decree No. 1096,  otherwise known as the "National Building Code of the
11 12

Philippines" (National Building Code). Likewise, ci ting Sections 3.2.1, 3.2. 3, and 3.2.4 of Section

3.2, Rule XV of the original Implementing Rules and Regulations  of the National Building Code, she
13

explained that it was Sps. Vergara’s duty to provide safety requirements for the landfill they made on
their property to prevent any danger to life or property. Moreover, Sps. Vergara failed to provide a
sewerage line to divert the flow of the water into the adjoining property, in violation of Section 901  of
14

the National Building Code. 15

Finally, the Provincial Engineer of Bulacan, Romeo S. Castro, who was appointed as Commissioner
by the RTC to conduct his own investigation, likewise found, inter alia, that the introduction of filling
materials on the Vergara Property has "affected" the house of Sps. Sonkin. 16

The RTC Ruling

In a Decision  dated January 4, 2007, th e RTC found Sps. Vergara civilly liable to Sps. Sonkin for
17

damages and directed them: ( a ) to scrape the earth and other filling materials dumped in the
adjacent perimeter wall of the Sonkin Property and erect a retaining wall in accordance with the
standards of the National Building Code; (b) to install and provide an adequate drainage system in
accordance with the same Code; and ( c) to jointly and severally pay Sps. Sonkin 300,000.00 as
actual damages, 50,000.00 as moral damages, 50,000.00 as exemplary damages, 100,000.00 as
attorney’s fees, and costs of suit. It dismissed all other claims of the Sps. Sonkin, as well as the
counterclaims of Sps. Vergara, for lack of merit.18

The RTC found that the earth dumpe d on the Vergara Property pushed back the perimeter wall,
causing crack s on Sps. Sonkin’s bedroom wall and water to seep through the floor of the house.
Moreover, the water seepage could only have come from the Vergara Property which was higher in
elevation, as Sps. Vergara have failed to provide any drainage to divert the flow of water. Given the
foregoing, the RTC concluded that Sps. Vergara’s act of dumping earth, soil, and other materials in
their property directly caused the damage to the house of Sps. Sonkin and, thus, they should be held
liable for damages in favor of the latter. Needless to state, Sps. Vergara’s co-defendants were
exculpated from liability since they were not shown to have participated in the former’s act. 19

Aggrieved, Sps. Vergara appealed  the entire RTC Decision to the CA. They reiterated that they
20

were merely exercising their proprietary rights over their property, i.e., the Vergara Property, when
they filled the area with soil and gravel, and that it was Sps. Sonkin who transgressed the National
Building Code when they failed to leave a setback of two (2) meters between their house and the
property line.
21

On the other hand, Sps. Sonkin filed only a partial appeal,  assailing the amount of actual, moral,
22

and exemplary damages.

The CA Ruling

In a Decision  dated February 24, 2010, the CA reversed and set aside the assailed RTC Decision
23

and entered a new one: (a ) ordering the Sps. Vergara to install and provide an adequate drainage
system on their property to prevent the flow of water into the Sonkin Property, and to pay Sps.
Sonkin the amounts of 50,000.00 as moral damages and 100,000.00 as attorney’s fees; (b ) setting
aside the directive to Sps. Vergara to remove the landfill and build a retaining wall on their property;
(c) deleting the award of actual damages, as well as exemplary damages; and ( d ) dismissing the
separate appeal of the Sps. Sonkin for lack of merit. 24

While the CA concurred with the finding of the RTC that the cause of the water seepage into the
Sonkin Property was the act of Sps. Vergara in elevating their own property by filling it with gravel
and soil, it ascribed error upon the RTC in not finding that Sps. Sonkin were likewise guilty of
contributory negligence in buildi ng their house directly abutting the perimeter wall.  The CA
25

explained that despite the fact that under Article 637 of the Civil Code, the Sonkin Property is legally
obliged to receive any water from higher estates such as the Vergara Property, it being the lower
estate, the Sps. Sonkin still built their house with parts thereof directly abutting the perimeter wall
and, in the process, violated the two (2)-meter setback rule under Section 708  of the National
26

Building Code.  Thus, the CA deduced that had Sps. Sonkin followed such rule, then their house
27

would not have sustained any damage from water coming from the Vergara property.  Proceeding
28

from such ratiocination, the CA deleted the award of actual damages in the absence of evidence,
i.e., actual receipts, showing the amount actually spent by Sps. Sonkin in the repairs or renovation of
their property. Similarly, it deleted the award of exemplary damages, as Sps. Vergara was not
proven to have acted with gross negligence in levelling their property with the landfill and in
mitigation of their liability in light of Sps. Sonkin’s contributory negligence. The award of moral
damages and attorney’s fees, however, were affirmed. 29

Finally, the CA found the order directing Sps. Vergara to remove the landfill on their property to be
unreasonable and an interference on their proprietary rights. It considered the order to provide an
adequate drainage system on their property to be su fficient under the circumstances. Neither did it
find the need to build a retain ing wall on the Vergara Property for the purpose of containing the
landfill thereon, opining that if it was Sps. Vergara’s obligation to prevent damage to Sps. Sonkin’s
house by erecting a retaining wall, then it was the latter’s concomitant ob ligation to detach their
house from the perimeter wall in order to prevent any future damage or injury. 30

Only Sps. Vergara sought reconsideration  from the CA Decision, which was denied in a
31

Resolution  dated September 2, 2010. Hence, this petition impleading only respondent Erlinda
32

Torrecampo Sonkin (Erlinda), essentially arguing that Sps. Sonkin: (a) are not entitled to damages;
and (b)should be ordered to demolish the parts of their house directly abutting the perimeter wall in
compliance with Section 708 (a) of the National Building Code.  Records are bereft of showing that
33

Sps. Sonkin made a further appeal to the Court.

The Issue Before the Court

The issues for the Court’s resolution are (a) whether or not the CA erred in upholding the award of
moral damages and attorney’s fees; and (b ) whether or not it should have ordered the demolition of
the portion of the Sps. Sonkin’s house that adjoins the partition wall.

The Court's Ruling

The petition is meritorious.

Article 2179 of the Civil Code reads:

Art. 2179. When the plaintiff’s own negligence was the immediate and proximate cause of his injury,
he cannot recover damages. But if his negligence was only contributory, the immediate and
proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded.

Verily, contributory negligence is conduct on the part of the injured party, contributing as a legal
cause to the harm he has suffered, which falls below the standard to which he is required to conform
for his own protection.34

In the case at bar, it is undisputed that the Sonkin property is lower in elevation than the Vergara
property, and thus, it is legally obliged to receive the waters that flow from the latter, pursuant to
Article 637 of the Civil Code. This provision refers to the legal easement pertaining to the natural
drainage of lands, which obliges lower estates to receive from the higher estates water which
naturally and without the intervention of man descends from the latter, i.e., not those collected
artificially in reservoirs, etc., and the stones and earth carried by the waters,  viz.:
35

Art. 637. Lower estates are obliged to receive the waters which naturally and without the intervention
of man descend from the higher estates, as well as the stones or earth which they carry with them.

The owner of the lower estate cannot construct works which will impede this easement; neither can
the owner of the higher estate make works which will increase the burden. 36
In this light, Sps. Sonkin should have been aware of such circumstance and, accordingly, made the
necessary adjustments to their property so as to minimize the burden created by such legal
easement. Instead of doing so, they disregarded the easement and constructed their house directly
against the perimeter wall which adjoins the Vergara property, thereby violating the National Building
Code in the process, specifically Section 708 (a) thereof which reads:

Section 708. Minimum Requirements for Group A Dwellings.

(a) Dwelling Location and Lot Occupancy.

The dwelling shall occupy not more than ninety percent of a corner lot and eighty percent of an
inside lot, and subject to the provisions on Easement on Light and View of the Civil Code of the
Philippines, shall be at least 2 meters from the property line.

Hence, the CA correctly held that while the proximate cause of the damage sustained by the house
of Sps. Sonkin was the act of Sps. Vergara in dumping gravel and soil onto their property, thus,
pushing the perimeter wall back and causing cracks thereon, as well as water seepage, the former is
nevertheless guilty of contributory negligence for not only failing to observe the two (2)-meter
setback rule under the National Building Code, but also for disregarding the legal easement
constituted over their property. As such, Sps. Sonkin must necessarily and equally bear their own
loss.

In view of Sps. Sonkin’s contributory negligence, the Court deems it appropriate to delete the award
of moral damages in their favor. While moral damages may be awarded whenever the defendant’s
wrongful act or omission is the proximate cause of the plaintiff’s physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and
similar injury in the cases specified or analogous to those provided in Article 2219  of the Civil
37

Code,  they are only given to ease the defendant’s grief and suffering and should, therefore,
38

reasonably approximate the extent of hurt caused and the gravity of the wrong done. 39

Anent the issue on attorney’s fees, the general rule is that the same cannot be recovered as part of
damages because of the policy that no premium should be placed on the right to litigate. They are
not to be awarded every time a party wins a suit. The power of the court to award attorney’s fees
under Article 2208  of the Civil Code demands factual, legal, and equitable justification. Even when
40

a claimant is compelled to litigate with third persons or to incur expenses to protect his rights, still
attorney's fees may not be awarded where no sufficient showing of bad faith could be reflected in a
party's persistence in a case other than an erroneous conviction of the righteousness of his
cause.  In this case, the Court observes that neither Sps. Sonkin nor Sps. Vergara(thru their
41

compulsory

counterclaim) were shown to have acted in bad faith in pursuing their respective claims against each
other. The existence of bad faith is negated by the fact that both parties have valid contentions
against each other. Thus, absent cogent reason to hold otherwise, the Court deems it inappropriate
to award attorney's fees in favor of either party.
42

Finally, in view of Sps. Sonkin's undisputed failure to observe the two (2)-meter setback rule under
the National Building Code, and in light of the order of the courts a quo directing Sps. Vergara to
provide an adequate drainage system within their property, the Court likewise deems it proper,
equitable, and necessary to order Erlinda, who is solely impleaded as respondent before the Court,
to comply with the aforesaid rule by the removal of the portion of her house directly abutting the
partition wall. The underlying precept on contributory negligence is that a plaintiff who is partly
responsible for his own injury should not be entitled to recover damages in full but must bear the
consequences of his own negligence. The defendant must therefore be held liable only for the
damages actually caused by his negligence. 43

WHEREFORE, the petition is GRANTED. The Decision dated February 24, 2010 and the Resolution
dated September 2, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 89357 are hereby
AFFIRMED with MODIFICATIONS. The awards of moral damages and attorney's fees are
DELETED and respondent Erlinda Torrecampo Sonkin is DIRECTED to strictly comply with Section
708 (a) of the National Building Code by removing or demolishing the portion of her house that
occupies the two-meter easement from the property line. The rest of the CA Decision stands.

SO ORDERED.

G.R. No. 197676               February 4, 2014

REMMAN ENTERPRISES, INC. and CHAMBER OF REAL ESTATE AND

BUILDERS'ASSOCIATION, Petitioners,
vs.
PROFESSIONAL REGULATORY BOARD OF REAL ESTATE SERVICE and PROFESSIONAL
REGULATION COMMISSION, Respondents.

DECISION

VILLARAMA, JR., J.:

Assailed in this petition for review under Rule 45 is the Decision  dated July 12, 2011 of the Regional
1

Trial Court (RTC) of Manila, Branch 42 denying the petition to declare as unconstitutional Sections
28(a), 29 and 32 of Republic Act (R.A.) No. 9646.

R.A. No. 9646, otherwise known as the "Real Estate Service Act of the Philippines" was signed into
law on June 29, 2009 by President Gloria Macapagal-Arroyo. It aims to professionalize the real
estate service sector under a regulatory scheme of licensing, registration and supervision of real
estate service practitioners (real estate brokers, appraisers, assessors, consultants and
salespersons) in the country. Prior to its enactment, real estate service practitioners were under the
supervision of the Department of Trade and Industry (DTI) through the Bureau of Trade Regulation
and Consumer Protection (BTRCP), in the exercise of its consumer regulation functions. Such
authority is now transferred to the Professional Regulation Commission (PRC) through the
Professional Regulatory Board of Real Estate Service (PRBRES) created under the new law.

The implementing rules and regulations (IRR) of R.A. No. 9646 were promulgated on July 21, 2010
by the PRC and PRBRES under Resolution No. 02, Series of 2010.

On December 7, 2010, herein petitioners Remman Enterprises, Inc. (REI) and the Chamber of Real
Estate and Builders’ Association (CREBA) instituted Civil Case No. 10-124776 in the Regional Trial
Court of Manila, Branch 42. Petitioners sought to declare as void and unconstitutional the following
provisions of R.A. No. 9646:

SEC. 28. Exemptions from the Acts Constituting the Practice of Real Estate Service. – The
provisions of this Act and its rules and regulations shall not apply to the following:
(a) Any person, natural or juridical, who shall directly perform by himself/herself the acts mentioned
in Section 3 hereof with reference to his/her or its own property, except real estate developers;

xxxx

SEC. 29. Prohibition Against the Unauthorized Practice of Real Estate Service. – No person shall
practice or offer to practice real estate service in the Philippines or offer himself/herself as real estate
service practitioner, or use the title, word, letter, figure or any sign tending to convey the impression
that one is a real estate service practitioner, or advertise or indicate in any manner whatsoever that
one is qualified to practice the profession, or be appointed as real property appraiser or assessor in
any national government entity or local government unit, unless he/she has satisfactorily passed the
licensure examination given by the Board, except as otherwise provided in this Act, a holder of a
valid certificate of registration, and professional identification card or a valid special/temporary permit
duly issued to him/her by the Board and the Commission, and in the case of real estate brokers and
private appraisers, they have paid the required bond as hereto provided.

xxxx

SEC. 32. Corporate Practice of the Real Estate Service. – (a) No partnership or corporation shall
engage in the business of real estate service unless it is duly registered with the Securities and
Exchange Commission (SEC), and the persons authorized to act for the partnership or corporation
are all duly registered and licensed real estate brokers, appraisers or consultants, as the case may
be. The partnership or corporation shall regularly submit a list of its real estate service practitioners
to the Commission and to the SEC as part of its annual reportorial requirements. There shall at least
be one (1) licensed real estate broker for every twenty (20) accredited salespersons.

(b) Divisions or departments of partnerships and corporations engaged in marketing or selling any
real estate development project in the regular course of business must be headed by full-time
registered and licensed real estate brokers.

(c) Branch offices of real estate brokers, appraisers or consultants must be manned by a duly
licensed real estate broker, appraiser or consultant as the case may be.

In case of resignation or termination from employment of a real estate service practitioner, the same
shall be reported by the employer to the Board within a period not to exceed fifteen (15) days from
the date of effectivity of the resignation or termination.

Subject to the provisions of the Labor Code, a corporation or partnership may hire the services of
registered and licensed real estate brokers, appraisers or consultants on commission basis to
perform real estate services and the latter shall be deemed independent contractors and not
employees of such corporations. (Emphasis and underscoring supplied.)

According to petitioners, the new law is constitutionally infirm because (1) it violates Article VI,
Section 26 (1) of the 1987 Philippine Constitution which mandates that "[e]very bill passed by
Congress shall embrace only one subject which shall be expressed in the title thereof"; (2) it is in
direct conflict with Executive Order (E.O.) No. 648 which transferred the exclusive jurisdiction of the
National Housing Authority (NHA) to regulate the real estate trade and business to the Human
Settlements Commission, now the Housing and Land Use Regulatory Board (HLURB), which
authority includes the issuance of license to sell of subdivision owners and developers pursuant to
Presidential Decree (P.D.) No. 957; (3) it violates the due process clause as it impinges on the real
estate developers’ most basic ownership rights, the right to use and dispose property, which is
enshrined in Article 428 of the Civil Code; and (4) Section 28(a) of R.A. No. 9646 violates the equal
protection clause as no substantial distinctions exist between real estate developers and the
exempted group mentioned since both are property owners dealing with their own property.

Additionally, petitioners contended that the lofty goal of nurturing and developing a "corps of
technically competent, reasonable and respected professional real estate service practitioners" is not
served by curtailing the right of real estate developers to conduct their business of selling properties.
On the contrary, these restrictions would have disastrous effects on the real estate industry as the
additional cost of commissions would affect the pricing and affordability of real estate packages.
When that happens, petitioners claimed that the millions of jobs and billions in revenues that the real
estate industry generates for the government will be a thing of the past.

After a summary hearing, the trial court denied the prayer for issuance of a writ of preliminary
injunction.

On July 12, 2011, the trial court rendered its Decision  denying the petition. The trial court held that
2

the assailed provisions are relevant to the title of the law as they are intended to regulate the
practice of real estate service in the country by ensuring that those who engage in it shall either be a
licensed real estate broker, or under the latter’s supervision. It likewise found no real discord
between E.O. No. 648 and R.A. No. 9646 as the latter does not render nugatory the license to sell
granted by the HLURB to real estate developers, which license would still subsist. The only
difference is that by virtue of the new law, real estate developers will now be compelled to hire the
services of one licensed real estate broker for every twenty salespersons to guide and supervise the
coterie of salespersons under the employ of the real estate developers.

On the issue of due process, the trial court said that the questioned provisions do not preclude
property owners from using, enjoying, or disposing of their own property because they can still
develop and sell their properties except that they have to secure the services of a licensed real
estate broker who shall oversee the actions of the unlicensed real estate practitioners under their
employ. Since the subject provisions merely prescribe the requirements for the regulation of the
practice of real estate services, these are consistent with a valid exercise of the State’s police power.
The trial court further ruled that Section 28(a) does not violate the equal protection clause because
the exemption of real estate developers was anchored on reasonable classification aimed at
protecting the buying public from the rampant misrepresentations often committed by unlicensed real
estate practitioners, and to prevent unscrupulous and unethical real estate practices from flourishing
considering the large number of consumers in the regular course of business compared to isolated
sale transactions made by private individuals selling their own property.

Hence, this appeal on the following questions of law:

1. Whether there is a justiciable controversy for this Honorable Court to adjudicate;

2. Whether [R.A. No. 9646] is unconstitutional for violating the "one title-one subject" rule
under Article VI, Section 26 (1) of the Philippine Constitution;

3. Whether [R.A. No. 9646] is in conflict with PD 957, as amended by EO 648, with respect
to the exclusive jurisdiction of the HLURB to regulate real estate developers;

4. Whether Sections 28(a), 29, and 32 of [R.A. No. 9646], insofar as they affect the rights of
real estate developers, are unconstitutional for violating substantive due process; and
 5. Whether Section 28(a), which treats real estate developers differently from other natural or
juridical persons who directly perform acts of real estate service with reference to their own
property, is unconstitutional for violating the equal protection clause.
3

The Court’s Ruling

The petition has no merit.

Justiciable Controversy

The Constitution  requires as a condition precedent for the exercise of judicial power the existence of
4

an actual controversy between litigants. An actual case or controversy involves a conflict of legal
rights, an assertion of opposite legal claims susceptible to judicial resolution.  The controversy must
5

be justiciable – definite and concrete – touching on the legal relations of parties having adverse legal
interests, which may be resolved by a court of law through the application of a law.  In other words,
6

the pleadings must show an active antagonistic assertion of a legal right, on the one hand, and a
denial thereof on the other; that is, it must concern a real and not a merely theoretical question or
issue. There ought to be an actual and substantial controversy admitting of specific relief through a
decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.  An actual case is ripe for adjudication when the act being challenged has
7

a direct adverse effect on the individual challenging it.

8

There is no question here that petitioners who are real estate developers are entities directly
affected by the prohibition on performing acts constituting practice of real estate service without first
complying with the registration and licensing requirements for brokers and agents under R.A. No.
9646. The possibility of criminal sanctions for disobeying the mandate of the new law is likewise real.
Asserting that the prohibition violates their rights as property owners to dispose of their properties,
petitioners challenged on constitutional grounds the implementation of R.A. No. 9646 which the
respondents defended as a valid legislation pursuant to the State’s police power. The Court thus
finds a justiciable controversy that calls for immediate resolution.

No Violation of One-Title One-Subject Rule

Section 26(1), Article VI of the Constitution states:

SEC. 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be
expressed in the title thereof.

In Fariñas v. The Executive Secretary,  the Court explained the provision as follows:
9

The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as
well as surreptitious and/or unconsidered encroaches. The provision merely calls for all parts of an
act relating to its subject finding expression in its title.

To determine whether there has been compliance with the constitutional requirement that the subject
of an act shall be expressed in its title, the Court laid down the rule that –

Constitutional provisions relating to the subject matter and titles of statutes should not be so
narrowly construed as to cripple or impede the power of legislation. The requirement that the subject
of an act shall be expressed in its title should receive a reasonable and not a technical construction.
It is sufficient if the title be comprehensive enough reasonably to include the general object which a
statute seeks to effect, without expressing each and every end and means necessary or convenient
for the accomplishing of that object. Mere details need not be set forth. The title need not be an
abstract or index of the Act.  (Emphasis supplied.)
10

The Court has previously ruled that the one-subject requirement under the Constitution is satisfied if
all the parts of the statute are related, and are germane to the subject matter expressed in the title,
or as long as they are not inconsistent with or foreign to the general subject and title.  An act having
11

a single general subject, indicated in the title, may contain any number of provisions, no matter how
diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and
may be considered in furtherance of such subject by providing for the method and means of carrying
out the general object.12

It is also well-settled that the "one title-one subject" rule does not require the Congress to employ in
the title of the enactment language of such precision as to mirror, fully index or catalogue all the
contents and the minute details therein. The rule is sufficiently complied with if the title is
comprehensive enough as to include the general object which the statute seeks to effect.  Indeed,
13

this Court has invariably adopted a liberal rather than technical construction of the rule "so as not to
cripple or impede legislation." 14

R.A. No. 9646 is entitled "An Act Regulating the Practice of Real Estate Service in the Philippines,
Creating for the Purpose a Professional Regulatory Board of Real Estate Service, Appropriating
Funds Therefor and For Other Purposes." Aside from provisions establishing a regulatory system for
the professionalization of the real estate service sector, the new law extended its coverage to real
estate developers with respect to their own properties. Henceforth, real estate developers are
prohibited from performing acts or transactions constituting real estate service practice without first
complying with registration and licensing requirements for their business, brokers or agents,
appraisers, consultants and salespersons.

Petitioners point out that since partnerships or corporations engaged in marketing or selling any real
estate development project in the regular course of business are now required to be headed by full-
time, registered and licensed real estate brokers, this requirement constitutes limitations on the
property rights and business prerogatives of real estate developers which are not all reflected in the
title of R.A. No. 9646. Neither are real estate developers, who are already regulated under a different
law, P.D. No. 957, included in the definition of real estate service practitioners.

We hold that R.A. No. 9646 does not violate the one-title, one-subject rule.

The primary objective of R.A. No. 9646 is expressed as follows:

SEC. 2. Declaration of Policy. – The State recognizes the vital role of real estate service
practitioners in the social, political, economic development and progress of the country by promoting
the real estate market, stimulating economic activity and enhancing government income from real
property-based transactions. Hence, it shall develop and nurture through proper and effective
regulation and supervision a corps of technically competent, responsible and respected professional
real estate service practitioners whose standards of practice and service shall be globally
competitive and will promote the growth of the real estate industry.

We find that the inclusion of real estate developers is germane to the law’s primary goal of
developing "a corps of technically competent, responsible and respected professional real estate
service practitioners whose standards of practice and service shall be globally competitive and will
promote the growth of the real estate industry." Since the marketing aspect of real estate
development projects entails the performance of those acts and transactions defined as real estate
service practices under Section 3(g) of R.A. No. 9646, it is logically covered by the regulatory
scheme to professionalize the entire real estate service sector.

No Conflict Between R.A. No. 9646

and P.D. No. 957, as amended by E.O. No. 648

Petitioners argue that the assailed provisions still cannot be sustained because they conflict with
P.D. No. 957 which decreed that the NHA shall have "exclusive jurisdiction to regulate the real
estate trade and business." Such jurisdiction includes the authority to issue a license to sell to real
estate developers and to register real estate dealers, brokers or salesmen upon their fulfillment of
certain requirements under the law. By imposing limitations on real estate developers’ property
rights, petitioners contend that R.A. No. 9646 undermines the licenses to sell issued by the NHA
(now the HLURB) to real estate developers allowing them to sell subdivision lots or condominium
units directly to the public. Because the HLURB has been divested of its exclusive jurisdiction over
real estate developers, the result is an implied repeal of P.D. No. 957 as amended by E.O. No. 648,
which is not favored in law.

It is a well-settled rule of statutory construction that repeals by implication are not favored. In order to
effect a repeal by implication, the later statute must be so irreconcilably inconsistent and repugnant
with the existing law that they cannot be made to reconcile and stand together. The clearest case
possible must be made before the inference of implied repeal may be drawn, for inconsistency is
never presumed. There must be a showing of repugnance clear and convincing in character. The
language used in the later statute must be such as to render it irreconcilable with what had been
formerly enacted. An inconsistency that falls short of that standard does not suffice.  Moreover, the
15

failure to add a specific repealing clause indicates that the intent was not to repeal any existing law,
unless an irreconcilable inconsistency and repugnancy exist in the terms of the new and old laws. 16

There is nothing in R.A. No. 9646 that repeals any provision of P.D. No. 957, as amended by E.O.
No. 648. P.D. No. 957, otherwise known as "The Subdivision and Condominium Buyers’ Protective
Decree,"  vested the NHA with exclusive jurisdiction to regulate the real estate trade and business in
17

accordance with its provisions. It empowered the NHA to register, approve and monitor real estate
development projects and issue licenses to sell to real estate owners and developers. It further
granted the NHA the authority to register and issue/revoke licenses of brokers, dealers and
salesmen engaged in the selling of subdivision lots and condominium units.

E.O. No. 648, issued on February 7, 1981, reorganized the Human Settlements Regulatory
Commission (HSRC) and transferred the regulatory functions of the NHA under P.D. 957 to the
HSRC. Among these regulatory functions were the (1) regulation of the real estate trade and
business; (2) registration of subdivision lots and condominium projects; (3) issuance of license to sell
subdivision lots and condominium units in the registered units; (4) approval of performance bond and
the suspension of license to sell; (5) registration of dealers, brokers and salesman engaged in the
business of selling subdivision lots or condominium units; and (6) revocation of registration of
dealers, brokers and salesmen. 18

E.O. No. 90, issued on December 17, 1986, renamed the HSRC as the Housing and Land Use
Regulatory Board (HLURB) and was designated as the regulatory body for housing and land
development under the Housing and Urban Development Coordinating Council (HUDCC). To date,
HLURB continues to carry out its mandate to register real estate brokers and salesmen dealing in
condominium, memorial parks and subdivision projects pursuant to Section 11 of P.D. No. 957,
which reads:
SECTION 11. Registration of Dealers, Brokers and Salesmen. – No real estate dealer, broker or
salesman shall engage in the business of selling subdivision lots or condominium units unless he
has registered himself with the Authority in accordance with the provisions of this section.

If the Authority shall find that the applicant is of good repute and has complied with the applicable
rules of the Authority, including the payment of the prescribed fee, he shall register such applicant as
a dealer, broker or salesman upon filing a bond, or other security in lieu thereof, in such sum as may
be fixed by the Authority conditioned upon his faithful compliance with the provisions of this Decree:
Provided, that the registration of a salesman shall cease upon the termination of his employment
with a dealer or broker.

Every registration under this section shall expire on the thirty-first day of December of each year.
Renewal of registration for the succeeding year shall be granted upon written application therefore
made not less than thirty nor more than sixty days before the first day of the ensuing year and upon
payment of the prescribed fee, without the necessity of filing further statements or information,
unless specifically required by the Authority. All applications filed beyond said period shall be treated
as original applications.

The names and addresses of all persons registered as dealers, brokers, or salesmen shall be
recorded in a Register of Brokers, Dealers and Salesmen kept in the Authority which shall be open
to public inspection.

On the other hand, Section 29 of R.A. No. 9646 requires as a condition precedent for all persons
who will engage in acts constituting real estate service, including advertising in any manner one’s
qualifications as a real estate service practitioner, compliance with licensure examination and other
registration requirements including the filing of a bond for real estate brokers and private appraisers.
While Section 11 of P.D. No. 957 imposes registration requirements for dealers, brokers and
salespersons engaged in the selling of subdivision lots and condominium units, Section 29 of R.A.
No. 9646 regulates all real estate service practitioners whether private or government. While P.D.
No. 957 seeks to supervise brokers and dealers who are engaged in the sale of subdivision lots and
condominium units, R.A. No. 9646 aims to regulate the real estate service sector in general by
professionalizing their ranks and raising the level of ethical standards for licensed real estate
professionals.

There is no conflict of jurisdiction because the HLURB supervises only those real estate service
practitioners engaged in the sale of subdivision lots and condominium projects, specifically for
violations of the provisions of P.D. No. 957, and not the entire real estate service sector which is now
under the regulatory powers of the PRBRES. HLURB’s supervision of brokers and dealers to
effectively implement the provisions of P.D. No. 957 does not foreclose regulation of the real estate
service as a profession. Real estate developers already regulated by the HLURB are now further
required to comply with the professional licensure requirements under R.A. No. 9646, as provided in
Sections 28, 29 and 32. Plainly, there is no inconsistency or contradiction in the assailed provisions
of R.A. No. 9646 and P.D. No. 957, as amended.

The rule is that every statute must be interpreted and brought into accord with other laws in a way
that will form a uniform system of jurisprudence. The legislature is presumed to have known existing
laws on the subject and not to have enacted conflicting laws.  Congress, therefore, could not be
19

presumed to have intended Sections 28, 29 and 32 of R.A. No. 9646 to run counter to P.D. No. 957.

No Violation of Due Process

Petitioners contend that the assailed provisions of R.A. No. 9646 are unduly oppressive and infringe
the constitutional rule against deprivation of property without due process of law. They stress that
real estate developers are now burdened by law to employ licensed real estate brokers to sell,
market and dispose of their properties. Despite having invested a lot of money, time and resources
in their projects, petitioners aver that real estate developers will still have less control in managing
their business and will be burdened with additional expenses.

The contention has no basis. There is no deprivation of property as no restriction on their use and
enjoyment of property is caused by the implementation of R.A. No. 9646. If petitioners as property
owners feel burdened by the new requirement of engaging the services of only licensed real estate
professionals in the sale and marketing of their properties, such is an unavoidable consequence of a
reasonable regulatory measure.

Indeed, no right is absolute, and the proper regulation of a profession, calling, business or trade has
always been upheld as a legitimate subject of a valid exercise of the police power of the State
particularly when their conduct affects the execution of legitimate governmental functions, the
preservation of the State, public health and welfare and public morals.  In any case, where the
20

liberty curtailed affects at most the rights of property, the permissible scope of regulatory measures
is certainly much wider. To pretend that licensing or accreditation requirements violate the due
process clause is to ignore the settled practice, under the mantle of police power, of regulating entry
to the practice of various trades or professions.21

Here, the legislature recognized the importance of professionalizing the ranks of real estate
practitioners by increasing their competence and raising ethical standards as real property
transactions are "susceptible to manipulation and corruption, especially if they are in the hands of
unqualified persons working under an ineffective regulatory system." The new regulatory regime
aimed to fully tap the vast potential of the real estate sector for greater contribution to our gross
domestic income, and real estate practitioners "serve a vital role in spearheading the continuous flow
of capital, in boosting investor confidence, and in promoting overall national progress." 22

We thus find R.A. No. 9646 a valid exercise of the State’s police power. As we said in another case
challenging the constitutionality of a law granting discounts to senior citizens:

The law is a legitimate exercise of police power which, similar to the power of eminent domain, has
general welfare for its object. Police power is not capable of an exact definition, but has been
purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and
provide enough room for an efficient and flexible response to conditions and circumstances, thus
assuring the greatest benefits. Accordingly, it has been described as "the most essential, insistent
and the least limitable of powers, extending as it does to all the great public needs." It is "[t]he power
vested in the legislature by the constitution to make, ordain, and establish all manner of wholesome
and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the
constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the
subjects of the same."

For this reason, when the conditions so demand as determined by the legislature, property rights
must bow to the primacy of police power because property rights, though sheltered by due process,
must yield to general welfare.

Police power as an attribute to promote the common good would be diluted considerably if on the
mere plea of petitioners that they will suffer loss of earnings and capital, the questioned provision is
invalidated. Moreover, in the absence of evidence demonstrating the alleged confiscatory effect of
the provision in question, there is no basis for its nullification in view of the presumption of validity
which every law has in its favor.  (Emphasis supplied.)
23

No Violation of Equal Protection Clause

Section 28 of R.A. No. 9646 exempts from its coverage natural and juridical persons dealing with
their own property, and other persons such as receivers, trustees or assignees in insolvency or
bankruptcy proceedings. However, real estate developers are specifically mentioned as an
exception from those enumerated therein. Petitioners argue that this provision violates the equal
protection clause because it unjustifiably treats real estate developers differently from those
exempted persons who also own properties and desire to sell them. They insist that no substantial
distinctions exist between ordinary property owners and real estate developers as the latter, in fact,
are more capable of entering into real estate transactions and do not need the services of licensed
real estate brokers.  They assail the RTC decision in citing the reported fraudulent practices as basis
1âwphi1

for the exclusion of real estate developers from the exempted group of persons under Section 28(a).

We sustain the trial court’s ruling that R.A. No. 9646 does not violate the equal protection clause.

In Ichong v. Hernandez,  the concept of equal protection was explained as follows:

24

The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation,
which is limited either in the object to which it is directed or by territory within which it is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within such class, and reasonable grounds exists for making a distinction between
those who fall within such class and those who do not. (2 Cooley, Constitutional Limitations, 824-
825).25

Although the equal protection clause of the Constitution does not forbid classification, it is imperative
that the classification should be based on real and substantial differences having a reasonable
relation to the subject of the particular legislation.  If classification is germane to the purpose of the
26

law, concerns all members of the class, and applies equally to present and future conditions, the
classification does not violate the equal protection guarantee. 27

R.A. No. 9646 was intended to provide institutionalized government support for the development of
"a corps of highly respected, technically competent, and disciplined real estate service practitioners,
knowledgeable of internationally accepted standards and practice of the profession."  Real estate
28

developers at present constitute a sector that hires or employs the largest number of brokers,
salespersons, appraisers and consultants due to the sheer number of products (lots, houses and
condominium units) they advertise and sell nationwide. As early as in the ‘70s, there has been a
proliferation of errant developers, operators or sellers who have reneged on their representation and
obligations to comply with government regulations such as the provision and maintenance of
subdivision roads, drainage, sewerage, water system and other basic requirements. To protect the
interest of home and lot buyers from fraudulent acts and manipulations perpetrated by these
unscrupulous subdivision and condominium sellers and operators, P.D. No. 957 was issued to
strictly regulate housing and real estate development projects. Hence, in approving R.A. No. 9646,
the legislature rightfully recognized the necessity of imposing the new licensure requirements to all
real estate service practitioners, including and more importantly, those real estate service
practitioners working for real estate developers. Unlike individuals or entities having isolated
transactions over their own property, real estate developers sell lots, houses and condominium units
in the ordinary course of business, a business which is highly regulated by the State to ensure the
health and safety of home and lot buyers.

The foregoing shows that substantial distinctions do exist between ordinary property owners
exempted under Section 28(a) and real estate developers like petitioners, and the classification
enshrined in R.A. No. 9646 is reasonable and relevant to its legitimate purpose. The Court thus rules
that R.A. No. 9646 is valid and constitutional.

Since every law is presumed valid, the presumption of constitutionality can be overcome only by the
clearest showing that there was indeed an infraction of the Constitution, and only when such a
conclusion is reached by the required majority may the Court pronounce, in the discharge of the duty
it cannot escape, that the challenged act must be struck down. 29

Indeed, "all presumptions are indulged in favor of constitutionality; one who attacks a statute,
alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that a law may work
hardship does not render it unconstitutional; that if any reasonable basis may be conceived which
supports the statute, it will be upheld, and the challenger must negate all possible bases; that the
courts are not concerned with the wisdom, justice, policy, or expediency of a statute; and that a
liberal interpretation of the constitution in favor of the constitutionality of legislation should be
adopted." 30

WHEREFORE, the petition is DENIED. The Decision dated July 12, 2011 of the Regional Trial Court
of Manila, Branch 42 in Civil Case No. 10-124776 is hereby AFFIRMED and UPHELD.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 189755               July 4, 2012

EMETERIA LIWAG, Petitioner,
vs.
HAPPY GLEN LOOP HOMEOWNERS ASSOCIATION, INC., Respondent.

DECISION

SERENO, J.:

This Rule 45 Petition assails the Decision and Resolution of the Court of Appeals (CA) in CA-GR SP
1  2 

No. 100454. The CA affirmed with modification the Decision and Order of the Office of the President
3  4 

(O.P.) in OP Case No. 05-G-224, which had set aside the Decision of the Board of Commissioners
5 

of the Housing and Land Use Regulatory Board (HLURB) in HLURB Case No. REM-A-041210-0261
and affirmed the Decision of the Housing and Land Use Arbiter in HLURB Case No. REM-030904-
6 

12609.

The controversy stems from a water facility in Happy Glen Loop Subdivision (the Subdivision), which
is situated in Deparo, Caloocan City.
Sometime in 1978, F.G.R. Sales, the original developer of Happy Glen Loop, obtained a loan from
Ernesto Marcelo (Marcelo), the owner of T.P. Marcelo Realty Corporation. To settle its debt after
failing to pay its obligation, F.G.R. Sales assigned to Marcelo all its rights over several parcels of
land in the Subdivision, as well as receivables from the lots already sold. 7

As the successor-in-interest of the original developer, Marcelo represented to subdivision lot buyers,
the National Housing Authority (NHA) and the Human Settlement Regulatory Commission (HSRC)
that a water facility was available in the Subdivision. 8

For almost 30 years, the residents of the Subdivision relied on this facility as their only source of
water. This fact was acknowledged by Marcelo and Hermogenes Liwag (Hermogenes), petitioner’s
9 

late husband who was then the president of respondent Happy Glen Loop Homeowners Association
(Association). 10

Sometime in September 1995, Marcelo sold Lot 11, Block No. 5 to Hermogenes. As a result,
Transfer Certificate of Title (TCT) No. C-350099

was issued to him. When Hermogenes died in 2003, petitioner Emeteria P. Liwag subsequently
wrote a letter to respondent Association, demanding the removal of the overhead water tank from
the subject parcel of land. 11

Refusing to comply with petitioner’s demand, respondent Association filed before the HLURB an
action for specific performance; confirmation, maintenance and donation of water facilities;
annulment of sale; and cancellation of TCT No. 350099 against T.P. Marcelo Realty Corporation (the
owner and developer of the Subdivision), petitioner Emeteria, and the other surviving heirs of
Hermogenes.

After the parties submitted their respective position papers, Housing and Land Use Arbiter Joselito
Melchor (Arbiter Melchor) ruled in favor of the Association. He invalidated the transfer of the parcel
of land in favor of Hermogenes in a Decision dated 5 October 2004, the dispositive portion of which
reads:12

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. Confirming the existence of an easement for water system/facility or open space on Lot
11, Block 5 of TCT No. C-350099 wherein the deep well and overhead tank are situated,

2. Making the Temporary Restraining Order dated 01 April 2004 permanent so as to allow
the continuous use and maintenance of the said water facility, i.e., deep well and over head
water tank, on the subject lot, by the complainant’s members and residents of the subject
project, and restraining all the respondents from committing the acts complained of and as
described in the complaint,

3. Declaring as void ab initio the deed of sale dated 26 February 2001, involving Lot 11,
Block 5 in favor of spouses Liwag, and TCT No. C-350099 in the name of same respondents
without prejudice to complainant’s right to institute a criminal action in coordination with the
prosecuting arms of the government against respondents Marcelo and Liwag, and
furthermore, with recourse by Liwag against T.P. and/or Marcelo to ask for replacement for
controverted lot with a new one within the subject project; and
 4. Ordering respondents, jointly and severally, to pay complainant the amount of ₱ 10,000.00
as attorney’s fees and the amount of ₱ 20,000.00 as damages in favor of the complainant’s
members.

SO ORDERED.

On appeal before the HLURB Board of Commissioners, the Board found that Lot 11, Block 5 was not
an open space. Moreover, it ruled that Marcelo had complied with the requirements of Presidential
Decree No. (P.D.) 1216 with the donation of 9,047 square meters of open space and road lots. It
further stated that there was no proof that Marcelo or the original subdivision owner or developer had
at any time represented that Lot 11, Block 5 was an open space. It therefore concluded that the use
of the lot as site of the water tank was merely tolerated. 13

Respondent Association interposed an appeal to the OP, which set aside the Decision of the HLURB
Board of Commissioners and affirmed that of the Housing and Land Use Arbiter. 14

The OP ruled that Lot 11, Block 5 was an open space, because it was the site of the water
installation of the Subdivision, per Marcelo’s official representation on file with the HLURB National
Capital Region Field Office. The OP further ruled that the open space required under P.D. 957
excluded road lots; and, thus, the Subdivision’s open space was still short of that required by law.
Finally, it ruled that petitioner Liwag was aware of the representations made by Marcelo and his
predecessors-in-interest, because he had acknowledged the existence of a water installation system
as per his Affidavit of 10 August 1982. 15

Petitioner Liwag unsuccessfully moved for reconsideration, then filed a Rule 43 Petition for Review
16 

before the CA. 17

The CA affirmed that the HLURB possessed jurisdiction to invalidate the sale of the subject parcel of
land to Hermogenes and to invalidate the issuance of TCT No. C-350099 pursuant thereto. The 18 

appellate court agreed with the OP that an easement for water facility existed on the subject parcel
of land and formed part of the open space required to be reserved by the subdivision developer
under P.D. 957. However, it ruled that Arbiter Melchor should not have recommended the filing of a
19 

criminal action against petitioner, as she was not involved in the development of the Subdivision or
the sale of its lots to buyers. The CA likewise deleted the award of attorney’s fees and damages in
20 

favor of respondent. 21

Aggrieved, petitioner filed the instant Petition before this Court.

The Court’s Ruling

We affirm the ruling of the appellate court.

The HLURB has exclusive jurisdiction

over the case at bar

The jurisdiction of the HLURB is outlined in P.D. 1344, "Empowering the National Housing Authority
to Issue Writ of Execution in the Enforcement of its Decision under Presidential Decree No. 957," viz:
Sec. 1. In the exercise of its functions to regulate real estate trade and business and in addition to its
powers provided for in Presidential Decree No. 957, the National Housing Authority shall have the
exclusive jurisdiction to hear and decide cases of the following nature.

A. Unsound real estate business practices;

B. Claims involving refund and any other claims filed by subdivision lot or condominium unit
buyer against the project owner, developer, dealer, broker or salesman; and

C. Cases involving specific performance of contractual and statutory obligations filed by

buyers of subdivision lots or condominium units against the owner, developer, broker or
salesman.

When respondent Association filed its Complaint before the HLURB, it alleged that Marcelo’s sale of
Lot 11, Block 5 to Hermogenes was done in violation of P.D. 957 in the following manner:

12. Through fraudulent acts and connivance of [T.P. and Ernesto Marcelo] and the late Liwag and
without the knowledge and consent of the complainants all in violation of P.D. 957 and its
implementing regulations, respondents T.P. and Ernesto Marcelo transferred the same lot where the
deep well is located which is covered by TCT No. C-41785 in favor of spouses Hermogenes Liwag
and Emeteria Liwag to the great damage and prejudice of complainants x x x. (Empasis in the
22 

original)

We find that this statement sufficiently alleges that the subdivision owner and developer fraudulently
sold to Hermogenes the lot where the water facility was located. Subdivisions are mandated to
maintain and provide adequate water facilities for their communities. Without a provision for an
23 

alternative water source, the subdivision developer’s alleged sale of the lot where the community’s
sole water source was located constituted a violation of this obligation. Thus, this allegation makes
out a case for an unsound real estate business practice of the subdivision owner and developer.
Clearly, the case at bar falls within the exclusive jurisdiction of the HLURB.

It is worthy to note that the HLURB has exclusive jurisdiction over complaints arising from contracts
between the subdivision developer and the lot buyer, or those aimed at compelling the subdivision
developer to comply with its contractual and statutory obligations to make the Subdivision a better
place to live in. This interpretation is in line with one of P.D. 957’s "Whereas clauses," which
24 

provides:

WHEREAS, numerous reports reveal that many real estate subdivision owners, developers,
operators, and/or sellers have reneged on their representations and obligations to provide and
maintain properly subdivision roads, drainage, sewerage, water systems, lighting systems, and other
similar basic requirements, thus endangering the health and safety of home and lot buyers. x x x.

P.D. 957 was promulgated to closely regulate real estate subdivision and condominium
businesses. Its provisions were intended to encompass all questions regarding subdivisions and
25 

condominiums. The decree aimed to provide for an appropriate government agency, the HLURB, to
26 

which aggrieved parties in transactions involving subdivisions and condominiums may take
recourse.27

II

An easement for water facility exists on Lot 11, Block 5 of Happy Glen Loop Subdivision
Easements or servitudes are encumbrances imposed upon an immovable for the benefit of another
immovable belonging to a different owner, for the benefit of a community,  or for the benefit of one
28  29 

or more persons to whom the encumbered estate does not belong. 30

The law provides that easements may be continuous or discontinuous and apparent or non-
apparent. The pertinent provisions of the Civil Code are quoted below:

Art. 615. Easements may be continuous or discontinuous, apparent or non-apparent.

Continuous easements are those the use of which is or may be incessant, without the intervention of
any act of man.

Discontinuous easements are those which are used at intervals and depend upon the acts of man.

Apparent easements are those which are made known and are continually kept in view by external
signs that reveal the use and enjoyment of the same.

Non-apparent easements are those which show no external indication of their existence.

In this case, the water facility is an encumbrance on Lot 11, Block 5 of the Subdivision for the benefit
of the community. It is continuous and apparent, because it is used incessantly without human
intervention, and because it is continually kept in view by the overhead water tank, which reveals its
use to the public.

Contrary to petitioner’s contention that the existence of the water tank on Lot 11, Block 5 is merely
tolerated, we find that the easement of water facility has been voluntarily established either by
Marcelo, the Subdivision owner and developer; or by F.G.R. Sales, his predecessor-in-interest and
the original developer of the Subdivision. For more than 30 years, the facility was continuously used
as the residents’ sole source of water. The Civil Code provides that continuous and apparent
31 

easements are acquired either by virtue of a title or by prescription of 10 years. It is therefore clear
32 

that an easement of water facility has already been acquired through prescription.

III

Lot 11, Block 5 of Happy Glen Loop Subdivision forms part of its open space

The term "open space" is defined in P.D. 1216 as "an area reserved exclusively for parks,
playgrounds, recreational uses, schools, roads, places of worship, hospitals, health centers,
barangay centers and other similar facilities and amenities. 33

The decree makes no specific mention of areas reserved for water facilities. Therefore, we resort to
statutory construction to determine whether these areas fall under "other similar facilities and
amenities."

The basic statutory construction principle of ejusdem generis states that where a general word or
phrase follows an enumeration of particular and specific words of the same class, the general word
or phrase is to be construed to include – or to be restricted to – things akin to or resembling, or of the
same kind or class as, those specifically mentioned. 34
Applying this principle to the afore-quoted Section 1 of P.D. 1216, we find that the enumeration
refers to areas reserved for the common welfare of the community. Thus, the phrase "other similar
facilities and amenities" should be interpreted in like manner.

Here, the water facility was undoubtedly established for the benefit of the community. Water is a
basic need in human settlements, without which the community would not survive. We therefore rule
35 

that, based on the principle of ejusdem generis and taking into consideration the intention of the law
to create and maintain a healthy environment in human settlements, the location of the water facility
36 

in the Subdivision must form part of the area reserved for open space.

IV

The subject parcel of land is beyond the commerce of man and its sale is prohibited under the law

The law expressly provides that open spaces in subdivisions are reserved for public use and are
beyond the commerce of man. As such, these open spaces are not susceptible of private ownership
37 

and appropriation. We therefore rule that the sale of the subject parcel of land by the subdivision
owner or developer to petitioner’s late husband was contrary to law. Hence, we find no reversible
error in the appellate court’s Decision upholding the HLURB Arbiter’s annulment of the Deed of Sale.

Petitioner attempts to argue in favor of the validity of the sale of the subject parcel of land by
invoking the principle of indefeasibility of title and by arguing that this action constitutes a collateral
attack against her title, an act proscribed by the Property Registration Decree.

Petitioner is mistaken on both counts.

First, the rule that a collateral attack against a Torrens title is prohibited by law finds no application
38 

to this case.

There is an attack on the title when the object of an action is to nullify a Torrens title, thus
challenging the judgment or proceeding pursuant to which the title was decreed. In the present
39 

case, this action is not an attack against the validity of the Torrens title, because it does not question
the judgment or proceeding that led to the issuance of the title. Rather, this action questions the
validity of the transfer of land from Marcelo to petitioner’s husband. As there is no attack – direct or
collateral – against the title, petitioner’s argument holds no water.

Second, the principle of indefeasibility of title is not absolute, and there are well-defined exceptions
to this rule. In Aqualab Philippines, Inc. v. Heirs of Pagobo, we ruled that this defense does not
40  41 

extend to a transferee who takes the title with knowledge of a defect in that of the transferee’s
predecessor-in-interest.

In this case, Spouses Liwag were aware of the existence of the easement of water facility when
Marcelo sold Lot 11, Block 5 to them.  Hermogenes even executed an Affidavit dated 10 August
1âwphi1

1982 attesting to the sufficiency of the water supply coming from an electrically operated water pump
in the Subdivision. It is undisputed that the water facility in question was their only water source
42 

during that time. As residents of the Subdivision, they had even benefited for almost 30 years from
its existence. Therefore, petitioner cannot be shielded by the principle of indefeasibility and
conclusiveness of title, as she was not an innocent purchaser in good faith and for value.

From the discussion above, we therefore conclude that the appellate court committed no reversible
error in the assailed Decision and accordingly affirm it in toto.
WHEREFORE, premises considered, the instant Petition for Review is DENIED, and the assailed
Decision and Resolution of the Court of Appeals in CA-GR SP No. 100454 are hereby AFFIRMED.

SO ORDERED.

G.R. No. L-37409 May 23, 1988

NICOLAS VALISNO, plaintiff-appellant,
vs.
FELIPE ADRIANO, defendant-appellee.

Honorio Valisno Garcia I for plaintiff-appelant.

Felipe K Medina for defendant-appellee.

GRIÑO-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 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). <äre||anº•1àw>

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.

G.R. No. L-42334             October 31, 1936

NORTH NEGROS SUGAR CO., plaintiff-appellant,

vs.
SERAFIN HIDALGO, defendant-appellee.

Hilado and Hilado for appellant.

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

RECTO, J.:

On October 12, 1933, the plaintiff filed before the Court of First Instance of Occidental Negros a
complaint praying, upon the allegations contained therein, that in an injunction be issued, restraining
the defendant from entering or passing through the properties of the plaintiff, specially through the
"mill site" of plaintiff's sugar central.
It appears that the plaintiff is the owner of a site in which is located its sugar central, with its factory
building and residence for its employees and laborers, known as the "mill site." It also owns the
adjoining sugar plantation known as Hacienda "Begoña." Across its properties the plaintiff
constructed a road connecting the "mill site" with the provincial highway. Through this road plaintiff
allowed and still allows vehicles to pass upon payment of a toll charge of P0.15 for each truck or
automobile. Pedestrians are allowed free passage through it.

Immediately adjoining the above-mentioned "mill site" of the plaintiff is the hacienda of Luciano
Aguirre, known as Hacienda "Sañgay," where the defendant has a billiard hall and a tuba saloon.
Like other people in and about the place, defendant used to pass through the said road of the
plaintiff, because it was his only means of access to the Hacienda "Sañgay" where he runs his
billiard hall and tuba saloon. Later on, by order of the plaintiff, every time that the defendant passed
driving his automobile with a cargo of tuba plaintiff gatekeeper would stop him and prevent him from
passing through said road. Defendant in such cases merely deviated from said road and continued
on his way to Hacienda "Sañgay" across the fields of Hacienda "Begoña," likewise belonging to the
plaintiff.

The alleged conveyance of tuba to plaintiff's "mill site" or the sale thereof within its property has not
been established by the evidence adduced in this case. This the plaintiff admits in its brief (p.15).
Neither is there any evidence to show that the defendant actually created disturbance in plaintiff's
properties, including its "mill site."

Other pertinent facts will be stated in appropriate places in this decision.

A.           First of all it may be stated that in the case at bar the injunction applied for, constitutes,
unlike the auxiliary and subordinate remedy that it ordinarily is, the principal remedy itself. The relief
should only be granted, therefore, after it has been established not only that the right sought to be
protected exists, but also that the acts against which the injunction is to be directed are violative of
said right.

SEC. 164. Circumstances under which a preliminary injunction may be granted. A

preliminary injunction may be granted when it is established, in the manner herein-after
provided, to the satisfaction of the judge granting it:

1. That the plaintiff is entitled to the relief demanded and such relief, or any part
thereof, consists in restraining the commission or continuance of the acts complained
of either for a limited period or perpetually;

2. That the commission or continuance of some act complained of during the

litigation would probably work in justice to the plaintiff;

3. That the defendant is doing, or threatens, or is about to do, or in procuring or

suffering to be done, some act probably in violation of the plaintiff's rights, respecting
the subject to the action, and tending to render the judgment ineffectual. (Code of
Civil Procedure.)

In order that, at the final trial of a case, an injunction may issue perpetually prohibiting the
repetition or continuation of an act complained of, it is indispensable that it shall have been
proven at trial that he who seeks such a remedy is entitled to ask for it; if he is not, his
request must be denied. (Tumacder vs. Nueva, 16 Phil., 513.)
 The extraordinary remedy of injunction will not be granted to prevent or remove a nuisance
unless there is a strong case of pressing necessity, and not because of a trifling discomfort.
(De Ayala vs. Barretto, 33 Phil., 538.)

The existence of a right violated is a prerequisite to the granting of an injunction. . . . A

permanent injunction should not be awarded except in a clear case and to prevent
irreparable injury. (32 C. J., 34-36.)

A court of chancery will not entertain a bill enforce a mere valueless abstract right, and the
court will, on its own motion, raise the point for its own protection. (Dunnom vs. Thomsen, 58
Ill. App., 390.)

None of these requisites is present in the instant case. There has been a failure to establish either
the existence of a clear and positive right of the plaintiff specially calling for judicial protection
through an extraordinary writ of the kind applied for, or that the defendant has committed or attempts
to commit any act which has endanger or tends to endanger the existence of said right, or has
injured or threatens to injure the same.

In obtaining ex-parte a preliminary injunction in the lower court, the plaintiff made under oath in its
complaint the following allegations, which later turned out to be untrue, or, at least, beyond the
capacity of plaintiff to prove:

3. That on sundry occasions heretofore, the defendant used to go to the said "mill site" of the
plaintiff, passing over the latter's private roads, and there caused trouble among the peaceful
people of the place.

4. That the plaintiff, through its representatives, has prohibited the defendant from entering
its private property, but this notwithstanding, the defendant still persists in repeating his
incursions into the said private roads and "mill site" of the plaintiff, disturbing public order and
molesting plaintiff's employees and their families.

The court, in its order granting the preliminary injunction said:

Considering the said injunction and the sworn statement of its correctness filed by plaintiff's
attorneys 1 and it appearing satisfactorily that the issuance of a preliminary injunction is in
order because of the sufficiency of the grounds alleged, upon the filing of a bond, it is
hereby, etc. . . . .

After obtaining the preliminary injunction, the plaintiff amended its complaint by eliminating therefrom
those very allegations upon which the court granted the temporary remedy, namely, the acts
imputed to the defendant "of causing trouble among the peaceful people of plaintiff's "mill site," and
of disturbing public order and molesting plaintiff's employees and their families within the private
roads and the "mill site" of the plaintiff." The plaintiff doubtless overlooked the fact that the allegation
it availed of to obtain a preliminary injunction was necessary to secure one of a permanent
character. In its new complaint, its only grievance is that the defendant insists in passing through its
property to take tuba to the Hacienda "Sañgay" (which does not belong to the plaintiff but to Luciano
Aguirre, and where the defendant has established a legitimate business). The amended complaint
no longer alleges that the defendant went to the "mill site" and to the private roads of the plaintiff "to
cause trouble, disturb public order and molest plaintiff's employees and their families."
It develops, however, that neither the original complaint nor the one amended states how and why
the mere passage of the defendant over plaintiff's estate to convey tuba to the Hacienda "Sañgay"
has caused damages to the plaintiff's property rights, requiring the unusual intervention and
prohibition thereof by the courts through injunctive relief. The plaintiff failed not only to make any
allegation to this effect, but also to the state that the road on its property where the defendant used
to pass on his way to the Hacienda "Sañgay" was open to the public in general, and that the plaintiff,
exercising without any permit a power exclusively lodged in the state by reason of its sovereign
capacity, required the payment of passage fees for the use of said road.

Now, there being no contention here that the defendant, in passing over plaintiff's estate to
take tuba to the Hacienda "Sañgay," occasioned damages to such estate, or that he sold tuba within
the confines thereof, what could have been the basis of the plaintiff's right for which the special
protection of the court is invoked, and of the illegal act laid at defendant's door? Defendant's
passage over plaintiff's property does not, of itself, constitute an unlawful act inasmuch as the
plaintiff, of its own accord, opened the same to the public conditioned only upon the payment of
transit fees by motor vehicles. Neither does the mere transportation of tuba over plaintiff's estate
amount to a violation of the latter's property rights, unless the goods' destination be at any point
within the confines thereof, or unless the said goods be sold in transit to the laborers and employees
of the plaintiff, which, as plaintiff itself admits in his brief. (p. 15), has not been shown.

The deduction from plaintiff's evidence is, that the real damage which it seeks to avoid does not
consist in defendant's taking tuba with him while traversing the former's property, as there is no
causal relation between the act and any resultant damage, but in the fact that tuba is disposed of at
the Hacienda "Sañgay" to which plaintiff's laborers have access. What should, therefore, be
enjoined, if it were legally possible, is defendant's sale of tuba at the Hacienda "Sañgay," and not its
conveyance across plaintiff's estate. But if, as plaintiff concedes (brief, p. 16), the former cannot
legally enjoined, least of all can the latter be restrained as long as the public in general is free to go
about the said property and it has not been shown that the defendant, in passing through, it has
occasioned damage thereto or has committed any act infringing plaintiff's property rights or has
refused to pay the required road toll.

Defendant's sale of tuba at the Hacienda "Sañgay" is nothing more than the exercise of a legitimate
business, and no real damage to the third persons can arise from it as a natural and logical
consequence. The bare possibility that plaintiff's laborers, due to the contiguity of the Hacienda
"Sañgay" to its property, might come to the defendant's store to imbibe tuba to drunkenness, does
not warrant the conclusion that the defendant, in thus running this business, impinges upon plaintiff's
property rights and should thereby be judicially enjoined. The damage which plaintiff seeks to enjoin
by this action does not consist, as has been demonstrated, in defendant's maintaining a tuba store
at the Hacienda "Sañgay," or in defendant's crossing its property while taking tuba to the Hacienda
"Sañgay," but in its laborers finding their way to the said hacienda in order to buy tuba and become
drunk. In other words, the act sought to be restrained as injurious or prejudicial to plaintiff's interests,
is that committed, not by the defendant, but by plaintiff's own laborers. Rightly and logically, the
injunction should be directed against said laborers to the end that they should abstain from going to
the Hacienda "Sañgay" in order to buy tuba and become drunk. As it would seem unusual for the
plaintiff to do this, it should at least exercise stricter vigilance and impose rigorous discipline on its
laborers by, for instance, punishing drunkenness with expulsion. Plaintiff's remedy lies in its own
hand and should not be looked for in the courts at the sacrifice of other interests no less sacred and
legitimate than the plaintiff's.

Where one has a right to do a thing equity has no power to restrain him from doing it.
(Dammann vs. Hydraulic Clutch Co., 187 Pac., 1069.) Acts under the authority of the law will not be
enjoined (Bonaparte vs. Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617, Baldw., 205). Lawful
exercise of rights incidentally injuring others may not be enjoined by injunction. (14 R. C. L., 369.) "It
is . . . an established principle that one may not be enjoined from doing lawful acts to protect and
enforce his rights of property or of persons, . . . ." (14 R. C. L., pp. 365, 366.)

It is said that the plaintiff seeks to enjoin the defendant, not from selling tuba at his store in the
Hacienda "Sañgay," but from passing through its property to introduce tuba to said hacienda
(plaintiff's brief, p. 16.) The legal rule, however, is that what the law does not authorize to be done
directly cannot be hone indirectly. If the plaintiff cannot judicially enjoin the defendant from
selling tuba at the Hacienda "Sañgay," neither can it obtain said injunction to prevent him from
passing over its property to transport tuba to that place as long as the defendant is ready to pay the
transit fees required by the plaintiff and does not sell the said goods inside the said property.

Suppose that the defendant, instead of being a tuba vendor, is a social propagandist whose
preachings, while not subversive of the established legal order, are not acceptable to some
capitalistic organizations, say the plaintiff. Suppose that the defendant, armed with the
corresponding official permit, should desire to go to Hacienda "Sañgay" through plaintiff's estate for
the purpose of explaining to the laborers the advantage of the latter organizing themselves into
unions, or joining existing ones, to better defend their interests. Plaintiff learns in time of the plan and
determines to frustrate it in the belief that it would be prejudicial to its interests for the laborers to be
"unionized," while it is for its good that the laborers be contracted under the so-called "open shop"
system. Unable to stop the holding of the meeting because the same is not to take place on its
property may he plaintiff secure an injunction from the court to prevent the defendant to pass
through the said property in order to reach the place of the meeting, by alleging that the defendant
entertains theories of social reform which might poison the minds of the laborers at the expense of
the plaintiff's interests? May the latter, under the same hypothesis, maintain that the defendant's act
in passing through its property, which is open to public use, constitute trespass or usurpation
restrainable by injunction? If the answer to these questions is, as it must be, in the negative, the
present case is not susceptible of a different solution. The only difference between the two cases is
that in the one supposed the dreaded damage to plaintiff's interests is of more moment and of more
lasting effect than in the case at bar.

When a private road has been thrown open to public use, no action for trespass is maintainable
against any person who desires to make use thereof; consequently, an injunction suit likewise does
not lie.

Private roads, except where laid out under constitutional provisions authorizing the
condemnation of private property for a private use, are public roads in the sense that they
are open to all who see fit to use them, and it is immaterial that the road is subject to gates
and bars, or that it is merely a cul de sac. Being thus considered as a public road, it
necessarily follows that the owner of the land through which the road is laid out cannot
maintain an action of trespass against any person using it; . . . (50 C. J., pp. 397, 398.)

. . . Where it is clear that the complainant does not have the right that he claims, he is not
entitled to an injunction, either temporary or perpetual, to prevent a violation of such
supposed right. . . . An injunction will not issue to protect a right not in esse and which may
never arise or to restrain an act which does not give rise to a cause of action, . . . . (32 C. J.,
pp. 34, 35.)

B.           In its brief, plaintiff states:

In transporting the tuba which he sells in his saloon in Hacienda "Sañgay" the defendant

used to pass thru the private road of the plaintiff which connects its sugar central with the
 provincial road. On this private road the plaintiff has put up a gate under the charge of a
keeper, and every time that the defendant passed with a cargo of tuba the gatekeeper would
stop him and remind him that the tuba was not permitted entry into the private properties of
the company, but instead of heeding this prohibition the defendant would simply deviate from
the road and continue on his way to hacienda "Sañgay" by way of the fields of Hacienda
"Begoña." which is also the private property of the plaintiff.

It is deducible from the above statement that, whenever the gatekeeper of the plaintiff prevented the
defendant from passing thru its so-called "private road," on his way to the provincial road to
Hacienda "Sañgay," the defendant deviated from said road and carried the tuba across the lands of
Hacienda "Begoña" leading to the Hacienda "Sañgay." The evidence discloses that the passageway
across the Hacienda "Begoña," is the same one frequented by carabaos (s. t., 32, 36). Plaintiff
intends not only to prohibit the defendant from using the road in question, but also from crossing the
lands of the Hacienda "Begoña," also belonging to the plaintiff, where carabaos are allowed to roam.
An act so shocking to the conscience, one is reminded, could only have been perpetrated during the
feudal period when human rights were unmercifully sacrificed to property rights. If an injunction
should lie in the instant case, it should be in favor of the defendant and against the plaintiff, to enjoin
the latter from obstructing the former to pass over the road in question to convey tuba to the
Hacienda "Sañgay." It is indeed strange that it is the plaintiff and not the defendant that should have
applied for the remedy.

. . . An injunction will not be granted when good conscience does not require it, where it will
operate oppressively or contrary to justice, where it is not reasonable and equitable under
the circumstances of the case, or where it will tend to promote, rather than to prevent, fraud
and injustice. . . . (32 C. J., p. 33.) . . . a court of equity may interfere by injunction to restrain
a party from enforcing a legal right against all equity and conscience. . . . (14 R. C. L., pp.
365, 366, par. 66.) . . . The comparative convenience or inconvenience of the parties from
granting or withholding the injunction should be considered, and none should be granted if it
would operate oppressively or inequitably, or contrary to the real justice of the case. This
doctrine is well established. . . . (14 R. C. L., pp. 357, 358, par. 60.)

The power of the courts to issue injunctions should be exercised with great caution and only
where the reason and necessity therefor are clearly established; and while this rule has been
applied more frequently in the case of preliminary and mandatory injunctions, it applies to
injunctions of all classes, and to restraining orders. . . . (32 C. J., pp. 33, 34.)

The writ of injunction will not be awarded in doubtful or new cases not coming within well-
established principles of equity. (Bonaparte vs. Camden, etc. Railroad Co., 3 Fed. Cas. No.
1617; Hardesty vs. Taft, 87 Am. Dec., 584.)

C.           Plaintiff's action is frivolous and baseless.

Plaintiff states in the sixth paragraph of its amended complaint:

6. That, in addition, the plaintiff, in the exercise of it property rights, does not want to allow
the entry of the defendant in any part of its estate above mentioned in order to avert any
friction or ill-feeling against him.

The plaintiff, in petitioning the courts for an injunction to avert "friction or ill-feeling" against the
defendant, invoking its sacred property rights, attempts to intrust to them a mission at once beyond
those conferred upon them by the Constitution and the laws, and unbecoming of their dignity and
decorum.
D.           Plaintiff has not established the existence, real or probable of the alleged damage against
which the injunction is invoked.

As has been seen, the allegations of the amended complaint do not justify the granting of an
injunction. The said allegations only state, as the basis of plaintiff's action, that the defendant insists
in passing or "making incursions" on plaintiff's property to take tuba to the Hacienda "Sañgay," and
the plaintiff wants to avoid "friction and ill-feeling against him." Such allegations do not imply the
existence, of any real damage to plaintiff's rights which should be enjoined, and do not, therefore,
constitute a legal cause of action. On the other hand, what the plaintiff attempted to establish by its
evidence differs from the allegations of its amended complaint. What said evidence really discloses
is not, that the plaintiff had forbidden the defendant to convey tuba to the Hacienda "Sañgay"
through plaintiff's estate, but to introduce tuba into the central or to place tuba on its lands, or,
according to Exhibit A, to trespass illegally on plaintiff's estate. The testimony of the gatekeeper
Santiago Plagata and the accountant Ankerson is as follows:

Q. Why did you detain him? — A. Because the Central forbids the bringing of tuba to the
Central.

Q. Why does the Central prohibit the entry of tuba? — A. The Central prohibits the entry
of tuba there because the laborers, generally, buy tuba, drink it and become drunk, and are
unable to work, and sometimes they fight because they are drunk. (S. t., p. 5.)

Q. Why did you kick them? — A. Because the North Negros Sugar Co. prohibits the placing
of tuba on those lands. (S. t., pp. 38, 39.)

Exhibit A, the alleged letter addressed by the plaintiff to the defendant, recites:

Mr. SERAFIN HIDALGO, Driver of Auto, License No. 1085-1935.

Present.

SIR: Effective this date, you are hereby forbidden to trespass upon any of the
Company's properties under penalties of law prescribed for trespass.

NORTH INTEGROS SUGAR CO., INC,.          

By: (Sgd.) Y. E. GREENFIELD          
Manager          

It will be noted that according to this letter, the defendant was enjoined by the plaintiff from passing
thru its properties, whether he carried tuba or not.

Plaintiff's admission in its brief (p. 15) that it has not been established that the defendant has
brought tuba to the "mill site," or has sold it within its property, is fatal to the present action charging
the defendant with said acts.

E.           The well-known principle of equity that "he who comes to equity must come with clean
hands" bars the granting of the remedy applied for by the plaintiff.

It has been already stated that the plaintiff, to obtain a preliminary injunction in this case, alleged
under oath in its original complaint facts which it knew to be false, or, at least, unprobable, because
it did not only eliminate them from the amended complaint which it filed after the issuance of the
preliminary injunction, but it failed to substantiate them at the trial. We refer to the following
allegations: "that the defendant used to go to the "mill site" of the plaintiff passing through plaintiff's
private roads and there cause trouble among peaceful people of the place," and "that
notwithstanding the prohibition of the plaintiff, the defendant insists in repeating his incursions into
the said private roads and "mill site" of the plaintiff, disturbing public order and molesting plaintiff's
employees and their families."

If said allegations were true, it is evident that plaintiff was entitled to a preliminary injunction at the
commencement of the trial, and to a permanent injunction after the was rendered. But such is not
the case, as the subsequent theory of the plaintiff, announced in its amended complaint, is not that
the defendant "made incursions into the "mill site" and private roads of the plaintiff, causing trouble,
disturbing public order, and molesting plaintiff's employees and their families," but only that the
defendant, to take tuba to the Hacienda "Sañgay," belonging to Luciano Aguirre, insisted in passing
through plaintiff's estate. From all this it follows that the plaintiff in order to obtain a preliminary
injunction, trifled with the good faith of the lower court by knowingly making untrue allegations on
matters important and essential to its cause of action. Consequently, it did not come to court with
clean hands.

Coming into Equity with Clean Hands. — The maxim that he who comes into equity must
come with clean hands is, of course, applicable in suits to obtain relief by injunction.
Injunction will be denied even though complainant shows that he has a right and would
otherwise be entitled to the remedy in case it appears that he himself acted dishonestly,
fraudulently or illegal in respect to the matter in which redress is sought, or where he has
encouraged, invited or contributed to the injury sought to be enjoined. However, the general
principle that he who comes into equity must come with clean hands applies only to plaintiff's
conduct relation to the very matter in litigation. The want of equity that will bar a right to
equitable relief for coming into court with unclean hands must be so directly connected with
the matter in litigation that it has affected the equitable relations of the parties arising out of
the transaction in question. (32 C. J. pp. 67, 68.)

At this point, attention should be directed to other facts of the case indicative of the censurable
attitude which the plaintiff has taken in connection therewith. On one occasion, the defendant drove
his automobile along the road in question, accompanied by Antonio Dequiña, headed for the
Hacienda "Sañgay." As they had tuba with them, on reaching the gate they were halted by the
gatekeeper. The defendant and his companion got off the car and unloaded the tuba in order to
follow the passageway across the lands of the Hacienda "Begoña," through which plaintiff's
carabaos passed, until they could reach "Sañgay." Thereupon, one Ankerson, accountant and
auditor of the plaintiff, arrived and no sooner he had laid eyes on the tuba containers than he
indignantly kicked them and uttered a blasphemy to both, spilling the contents thereof. The
defendant protested and asked Ankerson to indemnify him for the value of the tuba which had been
wasted, to which Ankerson replied that he would make good what should be paid, and he then and
there wrote and handed over a note to the defendant for presentation to plaintiff's cashier. The
defendant presented the note, but this claim was not paid, and instead he was prosecuted for
trespass in the justice of the peace court of Manapla under article 281 of the Revised Penal Code.
So absurd and malicious was the charge that the court, in acquitting the defendant, entered the
following order (Exhibit 3):

A peaceful citizen who passes through a private road open to the public does not commit the
crime of trespass. Although the prohibition to the accused to be in a private property should
be manifest, if the latter is not fenced or uninhabited, the mere fact that the accused is found
on the place in question, for a lawful purpose, does not constitute the crime of trespass
defined and punished under article 281 of the Revised Penal Code.
The plaintiff did not stop at this; it filed the present action for injunction which, as has been seen, is
nothing more than the culmination of a series of affronts which the plaintiff has perpetrated, privately
and through the courts, against the defendant.

F.           The exercise of discretion by trial courts in matters injunctive should not be interfered with
by appellate courts except in cases of manifest abuse.

. . . The court which is to exercise the discretion is the trial court and not the appellate court.
The action of the court may be reviewed on appeal of error in case of a clear abuse of
discretion, but not otherwise, and ordinarily mandamus will not lie to control such discretion.
(32 C. J., sec. 11, p. 33.)

True, the rule has particular application to preliminary injunctions, but the rule should not be
otherwise with respect to permanent injunctions especially where, as in this case, the trial court, after
granting the preliminary injunction, set the same aside in its final decision on a careful review of the
evidence.

II

It is undisputed the road in question was constructed by the plaintiff on its own land, and that it
connects the central or the "mill site" with the provincial road. We have also the admission that the
plaintiff made this road accessible to the general public, regardless of class or group of persons or
entities. Its use has been extended to employees and laborers of the plaintiff; and so also to all those
who have a mind to pass through it, except that, in cases of motor vehicles, a passage fee of P0.15,
each should be paid. There is no contention here that the defendant had refused to pay said tolls
whenever he wanted to drive his car along the road in question.

We, therefore, have the case of an easement of way voluntarily constituted in favor of a community.
Civil Code articles 531 and 594 read:

ART. 531. Easements may also be established for the benefit of one or more persons or of a
community to whom the encumbered estate does not belong.

xxx     xxx     xxx

ART. 594. The owner of an estate may burden it with such easements as he may deem fit,
and in such manner and form as he may consider desirable, provided he does not violate the
law or public order.

There is nothing in the constitution of this easement in violation of law or public order, except
perhaps that the right to open roads and charge passage fees therefor i the State's by right of
sovereignty and may not be taken over by a private individual without the requisite permit. This,
however, would affect the right of the plaintiff to charge tolls, but not that of the defendant or of any
other person to make use of the easement.

As may be seen from the language of article 594, in cases of voluntary easement, the owner is given
ample liberty to establish them: "as he may deem fit, and in such manner and form as he may
consider desirable." The plaintiff "considered it desirable" to open this road to the public in general,
without imposing any condition save the payment of a fifteen-centavo toll by motor vehicles, and it
may not now go back on this and deny the existence of an easement. Voluntary easements under
article 594 are not contractual in nature; they constitute the act of the owner. If he exacts any
condition, like the payment of a certain indemnity for the use of the easement, any person who is
willing to pay it may make use of the easement. If the contention be made that a contract is
necessary, it may be stated that a contract exits from the time all those who desire to make use of
the easement are disposed to pay the required indemnity.

The plaintiff contends that the easement of way is intermittent in nature and can only be acquired by
virtue of a title under article 539. The defendant, however, does not lay claim to it by prescription.
The title in this case consists in the fact that the plaintiff has offered the use of this road to the
general public upon payment of a certain sum as passage fee in case of motor vehicles.

The cases of Roman Catholic Archbishop of Manila vs. Roxas (22 Phil., 450), and Cuaycong vs.
Benedicto (37 Phil., 781), are not controlling, as there the attempt was to establish that the right to
an easement of way had been acquired by prescription. Here defendant's contention is, that while
the road in question remains open to the public, he has a right to its use upon paying the passage
fees required by the plaintiff. Indeed the latter may close it at its pleasure, as no period has been
fixed when the easement was voluntarily constituted, but while the road is thrown open, the plaintiff
may not capriciously exclude the defendant from its use.

Furthermore, plaintiff's evidence discloses the existence of a forcible right of way in favor of the
owner and occupants of the Hacienda "Sañgay" under the Civil Code, article 564, because,
according to said evidence, those living in Hacienda "Sañgay" have no access to the provincial road
except thru the road in question. Santiago Plagata, principal witness of the plaintiff, testified thus:

Emerging from the provincial road, the defendant has necessarily to pass through this
private road where the gate of which I am the keeper is situated, and then he gets to the
Central. (S. t., p. 5.)

Q. To go to the Hacienda "Sañgay," is there any need to cross the "mill site" of the
Central? — A. Yes, sir.

Q. And the property of the Central is passed in going to the Hacienda "Sañgay"? —
A. Yes, sir.

Q. Is there any other road? — A. I am not sure whether there is another road.

Q. For how long have you been a watchman there? — A. Nine years to date.

Q. And during that period of nine years, can you not state if there is any road which
gives access to the Hacienda "Sañgay"? Or the Central has necessarily to be
passed? — A. I cannot say because I do not go to those places.

COURT:

Q. But all the others, except the defendant, who go to the Hacienda "Sañgay"
necessarily pass thru the Central? — A. They pass thru that road of the Central. (S.
t., pp. 16, 17.)

The evidence for the defendant confirms this:

Q. To go there, thru what road did you have to pass? — A. Thru the road of the
Central.
 Q. And by this road of the Central you mean the Central "North Negros Sugar Co.,
Inc."? — A. Yes, sir.

Q. By this road of the Central which you mentioned, you mean the road where there
is a gate, beginning from the Central until the provincial road, where the gate is for
the purpose of preventing passage? — A. Yes, sir, the very one.

Q. And because of that gate, the Central collects certain toll? — A. Yes, sir. (S. t., pp.
20, 21.)

III

Having been devoted by the plaintiff to the use of the public in general, upon paying the passage
fees required in the case of motor vehicles, the road in question is charged with a public interest,
and while so devoted, the plaintiff may not establish discriminatory exceptions against any private
person.

When private property is affected with a public interest, it ceases to be juris privati only; as if
a man set out a street in new building on his own land, it is now no longer bare private
interest, but is affected by a public interest. (Lord Chief Justice Hale in his treatise "De
Portibus Maris, quoted with approval in Munn vs. Illinois, 94 U. S., 113 [1876], and in Nebbia
vs. New York, 291 U. S., 502 [1934].)

The above language was used in the seventeenth century, when exceptions to the individualistic
regime of ownership were scarcely recognized, and when the ideas on its social function may be
said to be in their infancy.

Property does become clothed with a public interest when used in a manner to make it of
public consequence, and affect the community at large. When, therefore, one devotes his
property to a use in which the public has an interest, he, in effect, grants to the public an
interest in that use, and must submit to be controlled by the public for the common good, to
the extent of the interest he has thus created. He may withdraw his grant by discontinuing
the use; but, so long as he maintains the use, he must submit to the
control. (Munn vs. Illinois, 94 U. S., 113; 24 Law. ed., 77.)

Under our form of government the use of property and the making of contracts are normally
matters of private and not of public concern. The general rule is that both shall be free of
governmental interference. But neither property rights nor contract rights are absolute; nor
government cannot exist if the citizen may at will use his property to the detriment of his
fellows, or exercise his freedom of contract to work them harm. Equally fundamental with the
private right is that of the public to regulate in the common interest. . . . The court has
repeatedly sustained curtailment of enjoyment of private property, in the public interest. The
owner's rights may be subordinated to the needs of other private owners whose pursuits are
vital to the paramount interests of the community. (Nebbia vs. New York, 291 U. S., 502,
521, 525; 78 Law. ed., 940, 948.)

Whenever any business or enterprise becomes so closely and intimately related to the
public, or to any substantial part of a community, as to make the welfare of the public, or a
substantial part thereof, dependent upon the proper conduct of such business, it becomes
the subject for the exercise of the regulatory power of the state. (Clarksburg Light & Heat
Co. vs. Public Service Commission, P. U. R. 1920A, 639; 84 W. Va., 638; 100 S. E., 551.)
 . . . If the service is dedicated to the public or some portion thereof, or to persons within a
given area, then any member of the public or of the given class, or any person within the
given area, may demand such service without discrimination, and the public, or so much of it
as has occasion to be served, is entitled to the service of the utility as a matter of right, and
not of grace. . . . A corporation becomes a public service corporation, and therefore subject
to regulation as a public utility, only when and to the extent that the business of such
corporation becomes devoted to a public use. . . . (Stoehr vs. Natatorium Co. 200 Pac.
[Idaho], 132, quoted in 18 A. L. R., 766.)

Tested by the rule laid down in Munn vs. Illinois, it may be conceded that the state has the
power to make reasonable regulation of the charges for services rendered by the stockyards
company. Its stock yards are situated in one of the gateways of commerce, and so located
that they furnish important facilities to all seeking transportation of cattle. While not a
common carrier, nor engaged in any distinctively public employment, it is doing a work in
which the public has an interest, and therefore must be considered as subject to government
regulation. (Cotting vs. Godard, 183 U.S., 79; 46 Law. ed., 92.)

Business which, though not public at their inception, may be fairly said to have risen to be
such, and have become subject in consequence to some government regulation. They have
come to hold such a peculiar relation to the public that this is superimposed upon them. In
the language of the cases, the owner, by devoting his business to the public use, in effect,
grants the public an interest in that use, and subjects himself to public regulation to the
extent of that interest, although the property continues to belong to its private owner, and to
be entitled to protection accordingly. (Munn vs. Illinois, supra; Spring Valley
Waterworks vs. Schottler, 110 U. S., 347; 28 L. ed., 173; 4 Sup. Ct. Rep., 48;
People vs. Budd, 117 N. Y., 1, 27; 5 L. R. A., 559; 15 Am. St. Rep., 460; 22 N. E., 670; s. c.
143 U. S., 517; 36 L. ed., 247; 4 Inters. Com. Rep., 45; 12 Sup. Ct. Rep., 468;
Brass vs. North Dakota, 153 U. S., 391; 38 L. ed., 757; 4 Inters. Com. Rep., 670; 14 Sup. Ct.
Rep., 857; Noble State Bank vs. Haskell, 219 U. S., 104; 55 L. ed., 112; 32 L. R. A. [N. S.],
1062; 31 Sup. Ct. Rep., 186; Ann. Cas., 1912A, 487; German Alliance Ins. Co. vs. Lewis,
233 U.S., 389; 58 L. ed., 1011; L. R. A. 1915C, 1189; 34 Sup. Ct. Rep., 612;
VanDyke vs. Geary, 244 U. S., 39, 47; 61 L. ed., 973, 981; 37 Sup. Ct. Rep., 483,
Block vs. Hirsh, 256 U. S., 135; 65 L. ed., 865; 16 A. L. R., 165; 41 Sup. Ct. Rep., 458.) Wolff
Packing Co. vs. Court of Industrial Relations, 262 U. S. 522; 27 A. L. R., 1280, 1286.)

Under the facts of the instant case, the road in question is of the nature of the so-called "turnpike
road" or "toll-road." The following authorities are, therefore, in point:

""Toll" is the price of the privilege to travel over that particular highway, and it is a quid pro
quo. It rests on the principle that he who, receives the toll does or has done something as an
equivalent to him who pays it. Every traveler has the right to use the turnpike as any other
highway, but he must pay the toll. (City of St. Louis vs. Creen, 7 Mo. App., 468, 476.)

A toll road is a public highway, differing from the ordinary public highways chiefly in this: that
the cost of its construction in the first instance is borne by individuals, or by a corporation,
having authority from the state to build it, and, further, in the right of the public to use the
road after completion, subject only to the payment of toll. (Virginia Cañon Toll Road
Co. vs. People, 45 Pac., 396, 399; 22 Colo., 429; 37 L. R. A., 711.)

Toll roads are in a limited sense public roads, and are highways for travel, but we do not
regard them as public roads in a just sense, since there is in them a private proprietary
right. . . . The private right which turnpike companies possess in their roads deprives these
 ways in many essential particulars of the character of public roads. It seems to us that,
strictly speaking, toll roads owned by private corporation, constructed and maintained for the
purpose of private gain, are not public roads, although the people have a right to freely travel
them upon the payment of the toll prescribed by law. They are, of course, public, in a limited
sense, but not in such a sense as are the public ways under full control of the state, for
public ways, in the strict sense, are completely under legislative control. (Elliott, Roads & S.,
p. 5.) (Board of Shelby County Com'rs vs. Castetter, 33 N. E., 986, 987; 7 Ind. App., 309.)

It has been suggested during the consideration of the case at bar that the only transportation
companies with motor vehicles who can have an interest in passing over the said road are those
which carry laborers of the central and passengers who transact business with the plaintiff, and not
all public service motor vehicles with certificates of public convenience, and that the only persons
who may have an interest in passing over the said road are the laborers of the plaintiff and persons
who do business with it and the occupants of the 21 houses situated in the Hacienda "Sañgay," and
not everyone for personal convenience. But even if this were true, the plaintiff having subjected the
road in question to public use, conditioned only upon the payment of a fifteen-centavo passage fees
by motor vehicles, such circumstance would not affect the case at all, because what stamps a public
character on a private property, like the road in question, is not the number of persons who may
have an interest in its use, but the fact that all those who may desire to use it may do so upon
payment of the required indemnity.

. . . The public or private character of the enterprise does not depend, however, upon the
number of persons by whom it is used, but upon whether or not it is open to the use and
service of all members of the public who may require it, to the extent of its capacity; and the
fact that only a limited number of persons may have occasion to use it does not make of it a
private undertaking if the public generally has a right to such use. . . . (51 C. J., sec. 2, p. 5.)

The test is, not simply how many do actually use them, but how many may have a free and
unrestricted right in common to use them. If it is free and common to all citizens, then no
matter whether it is or is not of great length, for whether it leads to or from a city, village or
hamlet, or whether it is much or little used, it is a "public road." (Heninger vs. Peery, 47 S. E.,
1013, 1014; 102 Va., 896, quoting Elliott, Roads & S., secs. 11, 192.)

The circumstance that the road in question does not properly fall within the definition of a public
utility provided in Act No. 3108, does not divest it to this character:

. . . Whether or not a given business, industry, or service is a public utility does not depend
upon legislative definition, but upon the nature of the business or service rendered, and an
attempt to declare a company or enterprise to be a public utility, where it is inherently not
such, is, by virtue of the guaranties of the federal constitution, void wherever it interferes with
private rights of property or contract. So a legislature cannot by mere fiat or regulatory order
convert a private business or enterprise into a public utility, and the question whether or not
a particular company or service is a public utility is a judicial one, and must be determined as
such by a court of competent jurisdiction; . . . . (51 C. J., sec. 3, p. 5.)

The road in question being a public utility, or, to be more exact, a private property affected with a
public interest, is not lawful to make arbitrary exceptions with respect to its use and enjoyment.

Duty to Serve Without Discrimination. — A public utility is obligated by the nature of its
business to furnish its service or commodity to the general public, or that part of the public
which it has undertaken to serve, without arbitrary discrimination, and it must, to the extent of
its capacity, serve all who apply, on equal terms and without distinction, so far as they are in
 the same class and similarly situated. Accordingly, a utility must act toward all members of
the public impartially, and treat all alike; and it cannot arbitrarily select the persons for whom
it will perform its service or furnish its commodity, nor refuse to one a favor or privilege it has
extended to another, since the term "public utility" precludes the idea of service which is
private in its nature and is not to be obtained by the public. Such duties arise from the public
nature of a utility, and statutes providing affirmatively therefor are merely declaratory of the
common law. (51 C. J., sec. 16, p. 7.)

The circumstance that the plaintiff is not the holder of a franchise or certificate of public convenience,
or that it is a company devoted principally to the manufacturer of sugar and not to the business of
public service or that the state has not as yet assumed control or jurisdiction over the operation of
the road in question by the plaintiff, does not preclude the idea that the said road is a public utility.

The touchstone of public interest in any business, its practices and charges, clearly is not the
enjoyment of any franchise from the state. (Munn vs. Illinois [94 U. S., 113; 24 L. ed.,
77, supra.) (Nebbia vs. New York, supra.)

The fact that a corporation may not have been given power to engage in the business of a
public utility is not conclusive that it is not in fact acting as a public utility and to be treated as
such. (51 C. J., p. 5.)

The question whether or not it is such does not necessarily depend upon whether it has
submitted or refused submit to the regulatory jurisdiction of the state, nor upon whether or
not the state has as yet assumed control and jurisdiction, or has failed or refused so to do.
(51 C. J., p. 6.)

The fact that a corporation does other business in addition to rendering a public service does
not prevent it from being a public utility, and subject to regulation as such, as to its public
business. (51 C. J., p. 6.)

The term "public utility" sometimes is used to mean the physical property or plant being used
in the service of the public. (51 C. J., p. 6.)

There are . . . decisions in which the incidental service has been held to public regulation
and control. (Re Commonwealth Min. & Mill. Co. [1915; Ariz.], P. U. R., 1915B, 536; Nevada,
C. & O. Teleg. & Teleph. Co. vs. Red River Lumber Co. [1920; Cal.], P. U. R., 1920E, 625;
Sandpoint Water & Light Co. vs. Humberd Lumber Co. [1918; Idaho], P. U. R., 1918B, 535;
Public Service Commission vs. Valley Mercantile Co. [1921; Mont.], P. U. R., 1921D, 803;
Public Service Commission vs. J. J. Rogers Co. [1918], 184 App. Div., 705; P. U. R., 1919A,
876; 172 N. Y. Supp., 498; Wingrove vs. Public Service Commission [1914], 74 W. Va., 190;
L. R. A. 1918A, 210; 81 S. E., 734; Chambers vs. Spruce Lighting Co. [1918], 81 W. Va.,
714; 95 S. E. 192. See also Hoff vs. Montgomery [1916; Cal.], P. U. R., 1916D,
880; Re Producers Warehouse [1919; Cal.], P. U. R., 1920A, 919; Ticer vs. Phillips [1920;
Cal.], P. U. R., 1920E, 582; Re Ontario Invest. Co. [1921; Cal.], P. U. R., 1922A, 181;
Bassett vs. Francestown Water Co. [1916; N. H.], P. U. R., 1916B, 815; Re Northern New
York Power Co. [1915; N. Y., 2d Dist.], P. U. R., 1915B, 70.) (Annotation in 18 A. L. R., 766,
767.)

The point is made that, there being no contract between the plaintiff and the public interested in the
use of the road in question it should be understood that such use has been by the mere tolerance of
the plaintiff, and that said property has not been constituted into a public utility. The contention is
devoid of merit.
When private property is devoted to public use in the business of a public utility, certain reciprocal
rights and duties are raised by implication of law between the utility and the public it undertakes to
serve, and no contract between them is necessary to give rise thereto. . . . (51 C. J., sec. 12 p. 6.)

Wherefore the judgment appealed from is affirmed, with costs to the plaintiff.

Abad Santos, J., concurs.

Separate Opinions

LAUREL, J., concurring and dissenting:

I concur in the result. I do not, however, agree to certain conclusions and observations that are
made in the foregoing opinion.

I. I am of the opinion that no servitude of way under the Civil Code has been created on the
tenement of the plaintiff in favor of the defendant.
lâwphi1 .nêt

Servitudes constitute legal limitations on the right of ownership. They are considered so among the
most ancient of property rights. The early Roman Law allowed the imposition of a servitude of way
over intervening tenements for the purpose of enabling strangers to reach the sepulchers of their
ancestors. The modern civil law, however, has amplified the principle and invested it with a utilitarian
concept for the convenience of landowners, particularly for the cultivation of enclosed rural estates.
But the general principles of the Roman Law regarding servitudes, whether praedial or personal, are
preserved intact in the modern civil law, and are now commonly applied to the "easements" of the
common law. Among these general principles which have come down to us through the ages are (1)
that servitudes are to be considered subordinate to the right of ownership, and (2) that, being a sort
of dismemberment of the right of private property, servitudes are never to be presumed but must be
proved to have been constituted in the manner prescribed by law.

A servitude of way is either legal or voluntary. A forced servitude of way constituted in the manner
and under the conditions stated in articles 564 to 570 of the Civil Code. Paragraph 1 of article 564
provides that "The owner of a tenement or land, surrounded by others belonging to different owners
and without access to a public highway, is entitled to demand a right of way through the neighboring
tenements, after payment of the proper indemnity."

No legal servitude of way exists in the present case. The defendant has not shown that his right of
passage across the tenement of the plaintiff exists by reason of necessity growing out of the peculiar
location of his property. He does not even own the tenement where he conducts his business. Said
tenement belongs to Luciano Aguirre who, as the owner thereof, would be the one entitled to claim
the forced servitude of way, on the hypothesis that it is demanded by the peculiar location of the
tenement. A mere lessee can not demand the legal servitude of way (see Manresa, Civil Code, vol.
4, 2d ed., p. 705). Moreover, it does not appear that Luciano Aguirre or the defendant has otherwise
fulfilled the requirements of the law. (Art. 564, Civil Code; Cuaycong vs. Benedicto, 37 Phil., 781,
797.)

Nor can it be said that a voluntary servitude of way exists. It should be observed that a right of way is
discontinuous or intermittent as its use depends upon acts of ma (art. 532, Civil Code; 4 Manresa,
Civil Code, 2d., p. 569; Cuaycong vs. Benedicto, supra). Lacking the element of continuity in its use,
a right of way may not be acquired by prescription but solely by title (art. 539, Civil Code). Only
continuous and apparent servitudes, like the servitude of light and view, may be acquired by
prescription (art. 537, Civil Code). Even assuming, however, that a servitude of way may be
acquired by prescription in view of the provisions of the present Code of Civil Procedure,
nevertheless, it can not be held that prescription exists in the present case. The free passage over
the private way rests on mere tolerance on the part of the plaintiff, is a settled principle of law in this
jurisdiction that acts merely tolerated can not give rise to prescription (Cortes vs. Yu-Tibo, 2 Phil., 24,
27; Ayala de Roxas vs. Maglonso, 8 Phil., 745; Roman Catholic Archbishop of Manila vs. Roxas, 22
Phil., 450, 452, 453; Municipality of Nueva Caceres vs. Director of Lands and Roman Catholic
Bishop of Nueva Caceres, 24 Phil., 485; Cuaycong vs. Benedicto, supra).

In what does the title of the plaintiff consist? By title as a mode of acquiring servitude, the Civil Code
refers to the "juridical act" which gives birth to the servitude. "Son, pues, titulos constitutivos de los
servidumbres cualquiera que sea su clase, la ley, la donacion, el contrato y el testamento" (4
Manresa, Civil Code, 2d ed., pp. 594, 595). Title by law is lacking. There is neither will nor donation,
for the making of a donation and the execution of require special formalities. It is elementary that the
plaintiff, being an artificial person, has no capacity to execute a will. In my opinion, there is no title by
contract. The act of the plaintiff in opening the private way here involved did not constitute an offer to
the public to use said way. There being no offer, there could be no acceptance; hence, no contract.

The plaintiff did not encumber his tenement with a servitude of way. Property is always presumed
free from any and all encumbrances. The act of the plaintiff, performed wholly upon its own exclusive
property, should not be construed to constitute the creation of a servitude. Servitus in faciendo
consistere nequit. "For a man should not use that which belongs to him as if it were a service only,
but as his own property" (Law 13, title 31, third partida, quoted with approval in Cortes vs. Yu-Tibo, 2
Phil., 24, 27).

II. The mere opening of the private way in question to the public did not necessarily clothe it with a
public interest such as to compel the owner thereof to allow everybody to pass thereon. Even on the
hypothesis that such private way is affected with a public interest, still, it is good law that the owner
thereof may make reasonable restrictions and limitations on the use thereof by the general public.

Public regulation of private property under the police power is often justified on the ground that the
property so regulated is affected with a public interest. The phrase "affected with a public interest"
was brought into prominence by the discussion in Lord Hale's treatise De Portibus Maris (I
Hargrave's Law Tracts, 78) of more than two centuries ago where the classic statement was made
that when private property "is affected with public interest, it ceases to be juris privati only."

Chief Justice Taft, speaking for the Supreme Court of the United States in Wolff Packing
Co. vs. Court of Industrial Relations (262 U. S., 522; 67 Law. ed., 1103, 1108), enumerated as
follows the business and occupations which may be said to be clothed with a public interest:

(1) Those which are carried on under the authority of a public grant of privileges which either
expressly or impliedly imposes the affirmative duty of rendering a public service demanded
by any member of the public. Such are the railroads, other common carriers and public
utilities.
 (2) Certain occupations, regarded as exceptional, the public interest attaching to which,
recognized from earliest times, has survived the period of arbitrary laws by Parliament or
colonial legislatures for regulating all trades and callings. Such are those of the keepers of
inns, cabs, and gristmills. (State vs. Edwards, 86 Me., 102; 25 L. R. A., 504; 41 Am. St. Rep.,
528; 29 Atl., 947; Terminal Taxicab Co. vs. Kutz. 241 U. S., 252, 254; 60 Law. ed., 984, 986;
P. U. R. 1916D, 972; 36 Sup, Ct. Rep., 583; Ann. Cas. 1916D, 765.)

(3) Businesses which, though not public at their inception, may be fairly said to have risen to
be such, and have become subject in consequence to some government regulation. They
have come to hold such a peculiar relation to the public that this is superimposed upon them.
In the language of the cases, the owner, by devoting his business to the public use, in effect
grants the public an interest in that use, and subjects himself to public regulation to the
extent of that interest, although the property continues to belong to its private owner, and to
be entitled to protection accordingly. (Munn vs. Illinois, supra; Spring Valley
Waterworks vs. Schottler, 110 U. S., 347; 28 Law ed., 173; 4 Sup. Ct. Rep., 48;
People vs. Budd, 117 N. Y., 1, 27; 5 L. R. A., 559; 15 Am St. Rep., 460; 22 N. E., 670; s. c.
143 U. S., 517; 36 Law ed., 247; 4 Inters. Com. Rep., 45; 12 Sup. Ct. Rep., 468;
Brass vs. North Dakota, 153 U. S., 391; 38 Law. ed., 757; 4 Inters. Com. Rep., 670; 14 Sup.
Ct. Rep., 857; Noble State Bank vs. Haskell, 219 U. S., 104; 55 Law. ed., 112; 32 L. R. A. [N.
S.], 1062; 31 Sup. Ct. Rep., 186; Ann. Cas. 1912A, 487; German Alliance Ins. Co. vs. Lewis,
233 U. S., 389; 58 Law. ed., 1011; L. R. A. 1915C, 1189; 34 Sup. Ct. Rep., 612;
VanDyke vs. Geary, 244 U. S., 39, 47; 61 Law. ed., 973, 981; 37 Sup. Ct. Rep., 483;
Block vs. Hirsh, 256 U. S., 135; 65 Law ed., 865; 16 A. L. R., 165; 41 Sup. Ct. Rep., 458.)

The term "affected with a public interest" is incapable of exact apprehension. "What circumstances
shall affect property with a public interest is not very clear." (Cooley, Constitutional Limitations, 7th
ed., p. 872.) "It requires no especial acuteness of mind," says Willoughby in his valuable work on the
Constitution of the United States, "to see that, in truth, no clear line of distinction can be drawn."
(Vol. 3, 2d ed., pp. 1758, 1759. See also German Alliance Ins. Co. vs. Lewis, 233 U. S., 389; 34
Sup. Ct., 612; 58 Law. ed., 1011; L. R. A. [1915C], 1189.)

To my mind, the road in question may not be likened unto a turnpike or toll road in the legal sense of
the term. The right to construct and maintain a toll or turnpike road and to collect tolls exists only by
virtue of an express grant from the legislature. (Powell vs. Sammons and Dotes, 31 Ala., 552;
Blood vs. Woods, 30 P., 129; 95 Cal., 78; Volcano Cañon Road Co. vs. Placer County, 26 P., 513;
88 Cal., 634; Truckee, and Tahoe Turnpike Road Co. vs. Campbell, 44 Cal., 89; Virginia Canon Toll-
Road Co. vs. People, 45 P., 398; 22 Colo., 429; 37 L. R. A., 711; Pike County Justices vs. Griffin,
etc., Plank Road Co., 9 Ga., 475; Wartdsworth vs. Smith, 11 Me., 278; 26 Am. D., 525; State vs,
Louisiana, etc., Gravel Road Co., 92 S. W., 153; 116 Mo. App., 175; String vs. Camden, etc.,
Turnpike Co., 40 A., 774; 57 N. J. Eq., 227; In re People, 128 N. Y. S., 29; 70 Misc., 72;
Turner vs. Eslick, 240 S. W., 786; 146 Tenn., 236; Peru Turnpike Co. vs. Town of Peru, 100 A., 679;
91 Vt., 295; L.R.A., [1917E], 559; Ferguson vs. Board of Sup'rs of Roanoke County, 113 S.E., 860;
133 Va., 561; Rainy Lake River Corp. vs. Rainy River Lunber Co., 27 Ont. L., 151; 6 Dom. L. R.,
401; 22 Ont. W. R. 952.) So that if there has been no state grant, there can be no toll or turnpike
road. In the case before us, the private way has been established and is being maintained by the
plaintiff, a private entity, for its own accommodation and not by virtue of a grant from the state.

But even if we were to assume that the private way of the plaintiff here is property clothed with public
interest, the only inference would be that it is subject to governmental or public regulation and
control or, as some courts put it, to the regulatory power of the state, exercised for the common good
(Fisher vs. Yangco Steamship Co., 31 Phil., 1; De Villata vs. Stanley, 32 Phil., 541; 51 C. J., p. 9) by
the legislature (State vs. Holm, 138 Minn., 281; 164 N.W., 989), either directly or through
administrative bodies endowed with power to that end (Atlantic Coast Line R. Co. vs. North Carolina
Corp. Comm., 206 U. S., 1; 27 S. Ct., 585; 51 Law. ed., 933; 11 Ann. Case, 398; In Re Petition for
Increase of Street Car Fares, 179 N. C., 151; 101 E., 619).

The philosophy inseparable from the logic of the adjudicated cases is based on the overwhelming
power of regulation possessed by the state in the public interest. A finding, therefore, that the private
way in question is property affected with a "public interest" leads to a recognition of the public power
or regulation and no more. The fact, for instance, that the plaintiff has opened a way to the public
and charges a fee or toll on motor vehicles for hire may lead the legislature or the administrative
authorities to intervene and regulate and, if necessary, to determine the reasonableness of the fee
charged under its rate-fixing authority.

Even as regards public utilities, courts have held with unerring uniformity that the utility itself may
prescribe rules and regulations for the due and proper conduct of its business, and the protection of
itself against fraud, injury or undue risk and liability, the only limitations being that said rules shall be
lawful and reasonable. The utility may enforce compliance with its rules by those dealing with it and
may refuse or discontinue service to one who does not conform to its rules. (See Thurston vs. Union
Pacific R. Co., 4 Dill. [U. S.], 321; 23 Fed. Cas. No. 14019; 13 Alb. L. J., 393; 8 Chic. Leg. N., 323;
22 Int. Rev. Rec., 251; Brown vs. Memphis, & C. R. Co., 5 Fed., 499; 7 Fed., 51; Gray vs. Cincinnati
Southern R. Co., 11 Fed., 683; Hewlett vs. Western Union Tel. Co. [C. C.], 28 Fed., 181;
Bluthenthal vs. Southern Ry. Co., 84 Fed., 920; Armstrong vs. Montgomery St. Ry. Co., 123 Ala.,
233; 26 So., 349; Birmingham Ry., L. & P. Co. vs. Littleton, 201 Ala., 141; 77 So., 565, 570;
Weigard vs. Alabama Power Co., 177 So., 206; McCook vs. Nothup, 65 Ark., 225; 45 S.W., 547;
California Powder Works vs. Atlantic & P. R. Co., 113 Cal., 329; 45 Pac., 691; 36 L. R. A., 648;
Southern Ry. Co. vs. Watson, 110 Ga., 681; 36 S. E., 209; Southern Ry. Co. vs. Howard, 111 Ga.,
842; 36 S. E., 213; Macon, etc. Ry. Co. vs. Johnson, 28 Ga., 409; Coyle vs. Southern Ry. Co., 112
Ga., 121; 37 S. E., 163; Central of Georgia Ry. Co. vs. Motes, 117 Ga., 923; 43 S. E., 990; 62 L. R.
A., 507; 97 Am. St. Rep., 223; Southern Ry. Co. vs. Bailey, 143 Ga., 610; 85 S. E., 847, 848; L. R.
A. [1915E], 1043; Railroad Commn. vs. Louisville, etc., R. Co., 140 Ga., 817; 80 S. E., 327; L. R. A.
[1915E], 902; Ann. Cas. [1915A], 1018; Huston vs. City Gas. etc., Co., 158 Ill. App., 307; Chicago
etc., R. Co. vs. Williams, 55 Ill., 185; 8 Am. Rep., 641; Milwaukee Malt Extract Co. vs. Chicago, etc.,
R. Co., 73 Iowa, 98; 34 N. W., 761; Gregory vs. Chicago, etc., R. Co., 100 Iowa, 345; 69 N. W., 532;
Pittsburg, etc., R. Co. vs. Vandyne, 57 Ind., 576; 26 Am. Rep., 68; Louisville, etc., R. Co. vs. Wright,
18 Ind. App., 125; 147 N. E., 491; Cox vs. City of Cynthiana, 123 Ky., 363; 96 S. W., 456; 29 Ky. L.,
780; Louisville Tobacco Warehouse Co. vs. Louisville Water Co., 162 Ky., 478; 172 S. W., 928;
McDaniel vs. Faubush Tel. Co., 106 S. W., 825; 32 Ky. L., 572; Day vs. Owen, 5 Mich., 520; 72 Am.
Dec., 62; Faber vs. Chicago Great Western R. Co., 62 Minn., 433; 64 N. W., 918; 36 L. R. A., 789;
Daniel vs. North Jersey St. Ry. Co., 64 N. J. L., 603; 46 Atl., 625; State vs. Water Supply Co. of
Albuquerque, 19 N. W. 36; 140 P., 1059, 1060; L. R. A. [1915A], 246; Ann. Cas. [1916E], 1290;
People vs. Babcock, 16 Hun. [N. Y.], 313; Freedom vs. New York Cent., etc., R. Co., 24 N. Y. App.
Div. 306; 48 N. Y. Sup. 584; Montgomery vs. Buffalo Ry. Co., 24 N. Y. App. Div., 454; 48 N. Y. Sup.,
849; Dowd vs. Albany Ry. Co., 47 N.Y. App. Div., 202; 62 N.Y. Sup., 179; Peck vs. N. Y. Cent., etc.,
R. Co., 70 N. Y., 587; Texas, etc., R. Co. vs. Johnson, 2 Tex. App. Civ. Cas., sec. 185; Guthrie Gas.
Co. vs. Board of Education, 64 Okl., 157; 166 P., 128; L. R. A. [1918D], 900; Henderson Coal
Co. vs. Public Serv. Commn., 73 Pa. Super., 45; McMillan vs. Federal St., etc., Ry. Co., 172 Pa. St.,
523; 33 Atl., 560; State vs. Goss, 59 Vt., 266; 9 Atl., 829; 59 Am. Rep., 706; Stevenson vs. West
Seattle Land, etc., Co., 22 Wash., 84: 60 Pac., 51; Chicago, etc., Ry. Co. vs. Williams, 55 Ill., 185; 8
Am. Rep., 641.) That a corporation engaged in business affected with "public interest" may prescribe
reasonable rules and charges for conducting its business is well settled. (McDaniel vs. Faubush
Telephone Co., supra.) This is a right which exists independently of any statutory enactment
(Weigand vs. Alabama Power Co., supra).
That persons engaged in business clothed with a "public interest" may make reasonable
discriminations may, furthermore, be illustrated by taking innkeepers as an example. The keeper of
an inn may make reasonable and proper rules governing the conduct of his business (14 R. C. L., p.
502). In so doing, he may refuse to receive as guests those who do not come in a situation in which
they are fit to be received (Bonner vs. Welborn, 7 Ga., 296, 334, 337; Bowlin vs. Lyon, 67 Ia., 536;
25 N. W., 766; 56 Am. Rep., 355; Markham vs. Brown, 8 N. H., 523; 31 Am. Dec., 209;
State vs. Steele, 106 N. C., 766; 11 S. E. 478; 19 A. S. R., 573; 8 L. R. A., 516; Pidgeon vs. Legge,
5 Week. Rep., 649). He may, therefore, admit to his inn only persons of good character and well
demeaned (Clemons vs. Meadows, 123 Ky., 178; 94 S. W., 13; 124 A. S. R., 339; 6 L. R. A. [N. S.],
847; Atwater vs. Sawyer, 76 Me., 539; 49 Am. Rep., 634), and those who are free from any
contagious or infectious disease (Jackson vs. Virginia Hot Springs Co., 213 Fed., 969). A person
who is disorderly or is of suspicious, immoral or objectionable character may be refused admission
by the innkeeper (Markham vs. Brown, supra; Goodenow vs. Travis, 3 Johns., 427;
Holden vs. Carraher, 195 Mass., 392; 81 N. E., 261; 11 Ann. Cas., 724; State vs. Steele, supra;
McHugh vs. Schlosser, 159 Pa. St., 480; 28 Atl., 291; 39 A. S. R., 699; 23 L. R. A., 574;
Nelson vs. Bodt, 180 Fed., 779; Watkins vs. Cope, 84 N. J. L., 143; 86 Atl., 545;
Fraser vs. McGibbon, 10 Ont. Week. Rep., 54; Howell vs. Jackson, 6 Car. & P., 723; Rex vs. Ivens,
7 Car. & P., 213; Thompson vs. McKenzie, 1 K. B., 905; 77 L. J. K. B. N. S., 605; 98 L. T. N. S., 896;
24 Times L. Rep., 330; 72 J. P., 150; 52 Sol. Jo., 302; Goodenow vs. Travis, 3 Jonhs., 427). And a
person who, once inside the inn, does not demean properly may be refused further service and may
be ejected, by force, if necessary (Lehnan vs. Hines, 88 Kan., 58; 127 Pac., 612; 42 L. R. A. [N. S.],
830 and note; Holden vs. Carraher, 195 Mass., 392; 81 N. E., 261; 11 Ann. Cas., 724 and note; De
Wolf vs. Ford, 193 N. Y., 397; 86 N. E., 527; 127 A. S. R., 969; 21 L. R. A. [N. S.], 860;
State vs. Steele, supra; McHugh vs. Scholsser, supra; Chase vs. Knabel, 46 Wash, 484; 90 Pac.,
642, 12 L. R. A. [N. S.], 1155; 2 British Rul. Cas., 692). Even the exclusion of patrons on account of
the race to which they belong has been sustained improperly, I believe, on the ground that they are
objectionable to other patrons and injure thereby the business of the innkeeper
(State vs. Steele, supra). And it has been held that a prize fighter who had broken the laws of
various states (Nelson vs. Boldt, 180 Fed., 779; Watkins vs. Cope, supra), or a card sharp
(Watkins vs. Cope, supra), or a person who has the habit of visiting inns with big dogs which were
an annoyance to the guests and a nuisance to the innkeeper (Reg. vs. Rymer, L. R. 2 Q. B. Div.,
136; 46 L. J. Mag. Cas. N. S., 108 25 Week. Rep., 415; 13 Cox, C. C., 378; 35 L. T. N. S., 774) may
be refused admission.

In the case at bar, it is not seriously contended that the plaintiff, by opening the road in question, has
become a public utility. In this jurisdiction, the term "public utility" has a technical meaning and refers
to the enterprises mentioned in section 13 of Act No. 3108, as amended by Act No. 4033. This is
admitted in the foregoing opinion. The difficulty arises because "public utility" is confused with "public
interest."

III. The foregoing opinion, by denying the right of the owner of the private way to impose what I
consider is a reasonable limitation upon the use of its property, undermines the right of ownership
and its incidents.

Briefly stated, the case is this: Plaintiff is the owner of a sugar central and the premises on which it is
located in Manapla, Occidental Negros. Realizing the necessity of constructing a private way
through its property for its own convenience and the convenience of persons who may have dealings
with it, it did open one to connect its property with the provincial road. The way is about a kilometer
in length and terminates at the mill site of the hacienda. It was built at the expense of the owner,
without any contribution from anyone. It is guarded by a gate keeper employed and paid by the
owner itself. It was opened not at the behest of any public demand or necessity but primarily for the
sole convenience of the owner. The defendant, Serafin Hidalgo, is the keeper of a tienda situated in
a contiguous hacienda belonging to Luciano Aguirre. The tienda is located almost on the borderline
of the hacienda of the plaintiff. Hidalgo in this store sells and otherwise dispenses tuba which
intoxicates the laborers of the plaintiff, incapacitates them for work and breaks their morale. The
damage to the plaintiff is positive and real. It is not mere "bare possibility" as stated in the foregoing
opinion. Upon these facts, the foregoing opinion holds that the defendant can not be prohibited by
the plaintiff from using the latter's private way. I hold otherwise. I believe that the plaintiff may
prohibit the defendant from using its private property. Stated otherwise, the use by Hidalgo of the
private way of the plaintiff may be conditioned upon his not carrying tuba. Plaintiff may not, to be
sure, prevent the sale of tuba outside the limits of its property. This is not pretended in this case. But
because plaintiff may not prohibit dispensation by the defendant of the intoxicating beverage outside
of its property, does it follow that it is in duty bound to offer facility to the defendant for the sale
of tuba and the consequent intoxication of its laborers? Is it under any obligation, moral or legal, to
do this? In other words, can plaintiff be compelled to contribute, directly or indirectly, to the infliction
upon itself of an admittedly real and positive damage and provide the means for its own destruction?
To ask these questions is to answer them. That you may, for instance, hang a man because you
have the physical or legal power to do so is conceivable, but that you may not only hang him but
also compel him to hang himself is only possible among barbarians. Such a result is not possible
even under the "Declaration of Rights of the Laboring and Exploited People by the Third All-Russian
Congress of Soviets of Workers', Soldiers' and Peasants' Deputies." Let me observe that social and
economic equilibrium should be maintained by striking the proper balance. One extreme is as
vicious and dangerous as the other. There is as much danger of destruction from the devastating
winds blowing from the Caucasus and the Ural mountains as from the infectious and hallowed
breath originating from the castles of the staggering feudal lords of Europe. Social storm is produced
one way or the other.

The inviolability of private property dates as far back as the days long past when primitive society
employed force to protect its collective ownership. Upon the change of the propriety tenure from
collectivism to individualism, the consequent upon the growth of the Roman concept of propriety,
private force was substituted by state authority as the sanctioning power of ownership. Later
evolution of civil society manifested the growth of state control power. The Philippines finds herself
engulfed in the vortex of this modern trend of greater state control of private property. Our
Constitution, for instance, expressly authorizes the National Assembly to determine by law the size
of private agricultural land which individuals, corporations and associations may require and hold,
subject only to rights existing prior to the enactment of such law (Art. XII, sec. 3). It also provides that
the State, upon payment of just compensation, may transfer to public ownership utilities and other
private enterprises to be operated by the Government (Art. XII, sec. 1). And it permits the National
Assembly to authorize, upon payment of just compensation, the expropriation of lands to be
subdivided into small lots and conveyed at cost to individuals (Art. XII, sec. 4). This latter provision
constitutes an extension of the power of eminent domain. The settled principle is that private
property shall be taken only for public use (Visayan Refining Co. vs. Camus and Paredes, 40 Phil.,
550; People ex rel. Detroit & H. R. Co. vs. Salem, 20 Mich., 452; 4 Am. Rep., 500). A provision to
this effect is found in the Bill of Rights of our Constitution (Art. III, sec. 1, par. 2. See also Ordinance
appended to the Constitution, sec. 1, par. 12; Civil Code, art. 349; Code of Civil Procedure, sec. 241;
Adm. Code, art. 2245.) Similar provisions are to be found in the Fifth Amendment to the Constitution
of the United States and in the constitutions of the great majority of the states of the Union. Some
state constitutions even go to the extent of expressly prohibiting the taking of property for private use
(Alabama [1901], I, 23; Arizona [1912], II, 17; Colorado [1876], II, 14, 15; Georgia [1877] I, iii, par. I;
Missouri [1875], II, 20; Washington [1889], I, 16; Wyoming [1889], I, 32, 33). But whilst innovations
have been introduced to enlarge the control by the public power of private property, the Filipino
philosophy of the inviolability of property right has tarried unaltered behind the thin veneer of our
Constitution. By providing in the Bill of Rights that no person shall be deprived of property without
due process of law, that private property shall not be taken for public use without just compensation,
that the people shall be secure in their possessions against unreasonable searches and seizures,
that no law impairing the obligation of contracts shall be passed, the Filipino people, for their own
protection, stamped upon the right of private ownership an inviolability — a deep and sacred impress
— which can not be easily wiped out or frittered away until it is no more. The protection of private
right, it seems to me, is a reflection of our inherent temperament as a people, and albeit fundamental
principles must be construed in the light of changing conditions and circumstances, the fabric with
which our social and political organizations have been wrought or woven into a lasting whole, has
remained unaltered. And not even the principle of social justice, vital and salutary as it is, can be
invoked to annihilate property rights.

Restrictions upon the paramount property right lodged in the private individual arise only from the
superior right of the state, the legal rights of third persons and the general duties resting upon the
owner as law-abiding citizen. In the language of Chief Justice Shaw in Commonwealth vs. Alger (7
Cush. [Mass.], 53), "We think it as a settled principle, growing out of the nature of well ordered civil
society, that every holder of property, however absolute and unqualified may be his title, holds it
under the implied liability that his use of may be so regulated, that it shall not be injurious to the
equal enjoyment of their property, nor injurious to the rights of the community. All property in this
commonwealth, as well that in the interior as the bordering on tidewaters, is derived directly or
indirectly from the government, and held subject to those general regulations, which are necessary
to the common good and general welfare. Rights of property, like all other social and conventional
rights, are subject to such reasonable limitations in their enjoyment, as shall prevent them from
being injurious, and to such reasonable restraints and regulations established by law, as the
legislature, under the governing and controlling power vested in them by the Constitution, may think
necessary and expedient." (See also Mugler vs. Kansas, 123 U.S., 623; 8 Sup. Ct., 273; 31 Law ed.,
205.)

IV. From what has been said, it does not, however, follow that plaintiff is entitled to the equitable
remedy of injunction. In the first place, the plaintiff styled the relief it is seeking as an "Accion
Negatoria" which, under the old Spanish procedural law and under the Roman law, consisted in the
right of a landowner to defend the free dominion of his tenement. This action which had specific
application to servitudes has, however, been repealed by the Code of Civil Procedure now in force.
The right of the plaintiff should, consequently, be tested by the rules governing the issuance of the
new remedy of injunction. The circumstances under which, in accordance with the former procedural
law, the accion negatoria could properly issue, would not necessarily justify the issuance of an
injunction, as defined and provided in the new Code (as to the other Spanish interdictos de adquirir,
de retener and de recobrar or de despojo, see Devesa vs. Arbes, 13 Phil., 273, 279;
Liongson vs. Martinez, 36 Phil., 948, 952). In the second place, injunction, being an equitable
remedy, the granting thereof is dependent upon the sound discretion of the court (32 C. J., pp. 29-
33; 14 R. C. L., pp. 307, 308). It is only in clear cases of abuse of discretion on the part of the trial
judge that review on appeal should be made (32 C. J., p. 33). "There is no power the exercise of
which is more delicate, which requires greater caution, deliberation, and sound discretion, or more
dangerous in a doubtful case, than the issuing an injunction; it is the strong arm of equity, that never
ought to be extended unless to cases of great injury where courts of law cannot afford an adequate
or commensurate remedy in damages. The right must be clear, the injury impending or threatened,
so as to be averted only by the protecting preventive process of injunction." (Bonaparte vs. Camden,
etc., R. Co., 3 Fed. Cas. No. 1617; Baldw., 205, 217.) In the third place, the remedy sought here is
not against the transportation of tuba by the defendant through the premises of the plaintiff, but the
entire exclusion therefrom of the defendant regardless of whether he carries tuba or not. In the
fourth place, the revocation of the judgment of the court below would exclude the defendant alone
from the use of the private way while the general public will be permitted to do so. The defendant
would be excluded not only from the use of the private premises of the plaintiff, but also from the
way left open to the public, regardless of whether he is carrying tuba or not. The result being clearly
unjust, the extraordinary legal remedy of injunction should not be granted. (Truly vs. Wanzer, 5
How., 141; 12 Law. ed., 88; Irwin vs. Dixion, 9 How., 11; 13 Law ed., 25; Sands vs. Marburg, 36 Ga.,
534; 91 Am. Dec., 781; Beidenkopf vs. Des Moines Life Ins. Co., 160 Ia., 629; 142 N. W., 434; 46 L.
R. A. [N. S.], 290; Edwards vs. Alluez Min. Co., 38 Mich., 46; 31 Am. Rep., 301; Troy, etc., R.
Co. vs. Boston, etc., Ry. Co., 86 N. Y., 107; Eastman Kodak Co. vs. Warren, 108 Misc., 680; 178 N.
Y. S., 14 [reversed on other grounds, 189 App. Div., 556; 179 N. Y. S., 325, Farmer vs. St. Paul, 65
Minn., 176; 67 N. W., 990; 33 L. R. A., 199]; Marvel vs. Jonah, 81 N. J. Eq., 369; 86 A., 968
[reversed on other grounds, 83 N. J. Eq., 295; 90 A., 1004, L. R. A. (1915B), 206;
Rogers vs. O'Brien, 153 N. Y., 357; 47 N. E., 456; Wendell vs. Conduit Mach. Co., 74 Misc. 201; 133
N. Y. S., 758; Higgins vs. Higgins, 57 N. H., 224; Atchinson etc., Ry. Co. vs. Meyer, 62 Kan., 696; 64
P., 597; Cincinnati, etc. R. Co. vs. Miami, etc. Transp. Co., 1 Oh. Cir. Ct. (N. S.), 117;
Ardmore vs. Fraley, 65 Okl., 14; 162 P., 211; Heilman vs. Lebanon, etc., St. Ry. Co., 175 Pa., 188;
34 A., 647; Messner vs. Lykens, etc., R. Co., 13 Pa. Super 429; Mackintyre vs. Jones, 9 Pa. Super.,
543; Speese vs. Schuylkill River East Side R. Co., 10 Pa. Dist., 515].)

In closing, I cannot but condemn the action of O. P. Ankerson, auditor of the plaintiff company, in
overturning the receptacles (balading) of tuba, which the defendant attempted to carry through the
premises of the plaintiff company, in defiance of the latter's repeated prohibition. Righteous
indignation at the misconduct of an employee of the plaintiff company and the damage caused the
defendant, however, should not carry us beyond the merits of the present controversy. The
protection of the property rights of the plaintiff is one thing and the condemnation of the acts of
vandalism of an employee of the plaintiff another thing.

Avanceña, C.J., and Diaz, J., concur.

VILLAREAL, J., dissenting:

I concur with the opinion of Justice Laurel in so far as he dissents from the opinion of Justice Recto,
but I dissent from it in so far as he concurs with opinion.

In concurring with the opinion of Justice Recto, Justice Laurel says: "In the fourth place, the
revocation of the judgment of the court below would exclude the defendant alone from the use of the
private way while the general public will be permitted to do so. The defendant be excluded not only
from the use of the private premises of the plaintiff, but also from the way left open to the public
regardless of whether he is carrying tuba or not. The result being clearly unjust, the extraordinary
legal remedy of injunction should not be granted." The facts in this case show that said defendant
was warned several times not to pass on said road when carrying tuba to the adjoining "Hacienda
Sañgay" where he sells it to the plaintiff's workmen who become intoxicated and unfit for work. The
repeated warnings were disregarded by the defendant, until one day the auditor of the said plaintiff
became so disgusted that he could not refrain from stopping his car and compelling him to unload
the tuba. If the North Negros Sugar Co., Inc., as the owner of the private road in question, has a right
to regulate its use by imposing reasonable restrictions and limitations, to prohibit its use by the
defendant who has repeatedly disregarded the warning of its auditor, thus becoming a persona non
grata, is certainly not unjust. To force the owner of a private road to allow the use of said road by a
person who has incurred his displeasure, if not his hatred, just because he allows other persons to
pass through it, cannot under whatever consideration, be just. In order to avoid taking the law into its
own hands in excluding the defendant who has become undesirable person to it, the plaintiff as a
law abiding corporation, has come to the courts to seek help in the enforcement of its property rights.
The opinion of Justice Laurel, concurred in by Chief Justice and Justice Diaz, while recognizing the
right of said plaintiff to regulate the use of its private road by imposing upon the users reasonable
restrictions and limitations, refuses it the remedy it seeks to help it in preventing an undesirable
person to use its private road, leaving to it no alternative except either to take the law into its own
hands or to close the road to everybody with the exception of those who deal with it in its business.
I am, therefore, of the opinion that the writ of injunction, as an auxiliary remedy, should be granted,
and the judgment of the court below should be revoked.

G.R. No. L-10619             February 28, 1958

LEOGARIO RONQUILLO, ET AL., plaintiffs-appellants,

vs.
JOSE ROCO, as Administrator of VICENTE, ROCO Y. DOMINGUEZ ET AL., defendants-
appellees.

Moises B. Cruz for appellants.

Vicente Roco, Jr. for appellees.

MONTEMAYOR, J.:

Involving as it does only a question of law, the present appeal from the order of the Court of First
Instance of Camarines Sur, dated March 6, 1955, dismissing the amended and supplemental
complaint of plaintiffs on motion of defendants that it did not state a cause of action, was taken
directly to this Court.

The facts and the issue involved in the appeal are well and correctly stated in the appealed order,
the pertinent portion of which we are reproducing and making our own:

The amended and supplemental complaint alleged that the plaintiffs have been in the
continuous and uninterrupted use of a road or passage way which traversed the land of the
defendants and their predecessors in interest, in going to Igualdad Street and the market
place of Naga City, from their residential land and back, for more than 20 years; that the
defendants and the tenants of Vicente Roco, the predecessors in interest of the said
defendants have long recognized and respected the private legal easement of road right of
way of said plaintiffs; that on May 12, 1953, the defendants Jose Roco thru his co-
defendants, Raymundo Martinez and their men with malice aforethought and with a view to
obstructing the plaintiffs' private legal easement over the property of the late Vicente Roco,
started constructing a chapel in the middle of the said right of way construction actually
impeded, obstructed and disturbed the continuous exercise of the rights of the plaintiffs over
said right of way; that on July 10, 1954 the new defendants Natividad Roco and Gregorio
Miras, Jr. with the approval of the defendant, Jose Roco and with the help of their men and
laborers, by means of force, intimidation, and threats, illegally and violently planted wooden
posts, fenced with barbed wire and closed hermitically the road passage way and their right
of way in question against their protests and opposition, thereby preventing them from going
to or coming from their homes to Igualdad Street and the public market of the City of Naga.

It is very clear from the allegations of the plaintiffs in their amended and supplemental
complaint, that they claim to have acquired the easement of right of way over the land of the
defendants and the latter's predecessors in interest, Vicente Roco, thru prescription by their
continuous and uninterrupted use of a narrow strip of land of the defendants as passage way
or road in going to Igualdad Street and the public market of Naga City, from their residential
land or houses, and return.

The only question therefore to determine in this case, is whether an easement of right of way
can be acquired thru prescription.
The dismissal was based on the ground that an easement of right of way though it may be apparent
is, nevertheless, discontinuous or intermittent and, therefore, cannot be acquired through
prescription, but only by virtue of a title. Under old as well as the New Civil Code, easements may be
continuous discontinuous (intermittent), apparent or non-apparent, discontinuous being those used
at more or less long intervals and which depend upon acts of man (Articles 532 and 615 of the Old
and New Civil Codes, respectively). Continuous and apparent easements are acquired either, by title
or prescription, continuous non-apparent easements and discentinuous ones whether apparent or
not, may be acquired only by virtue of a title (Articles 537 and 539, and 620 and 622 of the Old and
New Civil Codes, respectively).

Both Manresa and Sanchez Roman are of the opinion the easement of right of way is a
discontinuous one:

En cambio, las servidumbres discontinues se ejercitan por un hecho del hombre, y

precisamente por eso son y tienen que ser discontinuas, porque es imposible fisicamente
que su uso sea incesante. Asi, la servidumbre de paso es discontinua, porque no es posible
que el hombre este pasando continuamente por el camino, vereda o senda de que se trate.
(4 Manresa, Codigo Civil Español, 5th ed, p. 529).

. . . "5º Por razon de los modos de disfrutar las servidumbres, en

continuas y discontinuas (1). Las continuas son aquelles cuyo uso es o puede ser incesante,
sin la intervencion de ningun hecho del hombre, como son las de luces y otras de la misma
especie; y las discontinuas, las que se usan intervalos, mas o menos largos, y dependen de
actos del hombre, como las de sen senda, carrera y otras de esta clase. (3 Sanchez Roman,
Derecho Civil, p. 488).

Under the provisions of the Civil Code, old and new, particularly the articles thereof aforecited, it
would therefore appear that the easement of right of way may not be acquired through prescription.
Even Article 1959 of the Old Civil Code providing for prescription of ownership and other real rights
in real property, excludes therefrom the exception established by Article 539, referring to
discontinuous easements, such as, easement of right of way. (Bargayo vs. Camumot, 40 Phil., 857,
867).

In the case of Cuayong vs. Benedicto, 37 Phil., 781 where the point in issue was whether or not
vested rights in a right of way can be acquired through user from time immemorial, this Court said:

It is evident, therefore, that no vested right by user from time immemorial had been acquired
by plaintiffs at the time the Civil Code took effect. Under that Code (Article 539) ino
discontinuous easement could be acquired by prescription in any event.

However, in the case of Municipality of Dumangas is Bishop of Jaro, 34 Phil., 545, this same
Tribunal held that the continued use by the public of a path over land adjoining the Catholic church in
going to and from said church through its side door, has given the church the right to such use by
prescription, and that because of said use by the public, an easement of right of way over said land
has been acquired by prescription, not only by the church, but also by the public, which without
objection or protest on the part of the owner of said land, had continually availed itself of the
easement.

The minority of which the writer of this opinion is a part, believes that the easement of right of way
may now be acquired through prescription, at least since the introduction into this jurisdiction of the
special law on prescription through the Old Code of Civil Procedure, Act No. 190. Said law,
particularly, Section 41 thereof, makes no distinction as to the real rights which are subject to
prescription, and there would appear to be no valid reason, at least to the writer of this opinion, why
the continued use of a path or a road or right of way by the party, specially by the public, for ten
years or more, not by mere tolerance of the owner of the land, but through adverse use of it, cannot
give said party a vested right to such right of way through prescription.

The uninterrupted and continuous enjoyment of a right of way necessary to constitute

adverse possession does not require the use thereof every day for the statutory period, but
simply the exercise of the right more or less frequently according to the nature of the use. (17
Am. Jur. 972)

Even under the case of Cuaycong vs. Benedicto (supra), this Tribunal insinuated the rule that no
discontinuous easement, like an easement of right of way, may, under Article 539 of the Old Civil
Code, be acquired, might possibly have been changed by the provisions of the Code of Civil
Procedure relative to prescription.

. . . Assuming, without deciding, that this rule has been changed by the provisions of the
present Code of Civil Procedure relating to prescription, and that since its enactment
discontinuous easement of acquired by prescription, it is clear that this would not by avail
plaintiffs. The Code of Civil Procedure went into effect on October 1, 1901. The term of
prescription for the acquisition of right in real estate is fixed by the Code (section 41) at ten
years. The evidence shows that in February, 1911, before the expiration of the term of ten
years since the time the Code of Civil Procedure took effect, the defendants interrupted the
use of the road by plaintiffs by constructing and maintaining a toll gate on, it collecting toll
from persons making use of it with carts and continued to do so until they were enjoin by the
granting of the preliminary injunction by the trial court in December 1912. . .
(Cuayong vs. Benedicto, 37 Phil., 781, 796).

Professor Tolentino in his Commentaries and Jurisprudence on the Civil Code, Vol. I, p. 340, would
appear to be of the opinion that under, the provision of the Code of Civil Procedure relative to
prescription, even discontinuous easements, like the easement right of way, may be acquired
through prescription:

. . . "It is submitted that under Act No. 190, even discontinuous servitudes can be acquired
by prescription, provided it can be shown that the servitude was actual, open, public,
continuous, under a claim of title exclusive of any other right and adverse to all other
claimants'."

However, the opinion of the majority must prevail, and it is held that under the present law,
particularly, the provisions of the Civil Code, old and new, unless and until the same is changed or
clarified, the easement of right of way may not be acquired through prescription.

In view of the foregoing, the order appealed from is hereby affirmed. No costs.

Bengzon, Bautista Angelo, Labrador, Concepcion, Endencia, and Felix, JJ., concur.

Padilla, J., concurs in the result.

Separate Opinions
REYES, J.B.L., J., concurring:

I would like to elaborate my reasons for concurring with the majority in declaring the easement of
right of way not acquirable by prescription.

The essence of this easement ("servidumbre de paso") lies in the power of the dominant owner to
cross or traverse the servient tenement without being prevented or disturbed by its owner. As a
servitude, it is a limitation on the servient owner's rights of ownership, because it restricts his right to
exclude others from his property. But such limitation exists only when the dominant owner actually
crosser, or passes over the servient estate; because when he does not, the servient owner's right of
exclusion is perfect and undisturbed. Since the dominant owner can not be continually and
uninterruptedly crossing the servient estate, but can do so only at intervals, the easement is
necessarily of an intermittent or discontinuous nature.

Because possession of a right consists in the enjoyment of that right (old Civil Code, Art. 430; Art.
423, new Civil Code) and to enjoy a right is to exercise it, it follows that the possession (enjoyment
or exercise) of a right of way is intermittent and discontinuous. From this premise, it is inevitable to
conclude, with Manresa and Sanchez Roman, that such easement can not be acquired by
acquisitive prescription (adverse possession) because the latter requires that the possession
be continuous or uninterrupted (old Civil Code, Art. 1941; new Civil Code, Art. 1118).

The Code of Civil Procedure (Act 190) did not change the situation. Observe that its section 41, in
conferring prescriptive title upon "ten years adverse possession" qualifies it by the succeeding words
"uninterruptedly continued for ten years which is the same condition of continuity that is exacted by
the Civil Code.

SEC. 41. Title to Land by Prescription. — Ten years actual adverse possession by any
person claiming to be the owner for that time of any land or interest in land, uninterruptedly
continued for ten years by occupancy, descent, grants, or otherwise, in whatever way such
occupancy may have commenced or continued, shall vest in every actual occupant or
possessor of such land a full and complete title, saving to the persons under disabilities the
rights secured the next section. In order to constitute such title by prescription or adverse
possession, the possession by the claimant or by the person under or through whom he
claims must have been actual, open, public, continous, under a claim of title exclusive of any
other right and adverse to all other claimants. But failure to occupy or cultivate land solely by
reason of war shall not be deemed to constitute an interruption of possession of the
claimant, and his title by prescription shall he complete, if in other regrets perfect,
notwithstanding such failure to occupy or cultivate the land during the continuance of war.

The case of Municipality of Dumangas vs. Bishop of Jaro, 34 Phil. 541, does not, if properly
analyzed, constitute authority to hold that the easement of right of way is acquirable by prescription
or adverse possession. The Court there said:

The record shows that the church of the pueblo of Dumangas was constructed in or about
the year 1987; that wall on the southeast side adjoins the building lot in question; and that
since the construction of the church there has been a side door in this wall through which the
worshippers attending divine service enter and leave, they having to pass over and cross the
land in question. It is therefore to be presumed that the use of said side door also carries
with it the use by faithful Catholics of the municipal land over which they have had to pass in
order to gain access to said place of worship, and, as this use of the land has been
continuous, it is evident that the Church has acquired a right to such use by prescription, in
view of the time that has elapsed since the church was built and dedicated to religious
 worship, during which period the municipality has not prohibited the passage over the land
by the persons who attend services customarily held in said church.

The record does not disclose the date when the Government ceded to the Church the land
on which the church building was afterwards erected, nor the date of the laying out of the
adjacent square that is claimed by the municipality and on which the side door of the church,
which is used as an entrance by the people who frequent this building, gives. There are good
grounds for presuming that in apportioning lands at the time of the establishment of the
pueblo of Dumangas and in designating the land adjacent to the church as a public square,
this latter was impliedly encumbered with the easement of a right of way to allow the public
to enter and leave the church — a case provided for by article 567 of the Civil Code — for
the municipality has never erected any building or executed any work which would have
obstructed the passage and access to the side door of the church, and the public has been
enjoying the right of way over the land in question for an almost immemorable length of time.
Therefore an easement of right of way over said land has been acquired by prescription, not
only by the church, but also by the public which, without objection or protest, has continually
availed itself of the easement in question. (34 Phil., pp. 545-546).

It will be seen that the ratio decidendi of that case lies in the application of Article 567 of the old Civil
Code that provides as follows:

ART. 567. When an estate acquired by purchase, exchange, or partition is enclosed by other
estates of the vendor, exchanger, or co-owner, the latter shall be obliged to grant a right of
way without indemnity, in the absence of an agreement to the contrary.

Bearing in mind the provisions of the article quoted in relation to the wording of the decision in the
Dumangas case, it can be seen that what the court had in mind is that when the Spanish Crown
apportioned the land occupied by the Church of Dumangas, it impliedly burdened the neighboring
public square (which was also Crown property at the time) with an easement of right of way to allow
the public to enter and leave the church, because without such easement the grant in favor of
ecclesiastical authorities would be irrisory: what would be the use of constructing a church if no one
could enter it? Now, if there was an implied grant of the right of way by the Spanish Crown, it was
clearly unnecessary to justify the existence of the easement through prescriptive acquisition. Why
then does the decision repeatedly speak of prescription? Plainly, the word "prescription" was used in
the decision not in the sense of adverse possession for ten or thirty years, but in the sense of
"immemorial usage" that under the law anterior to the Civil Code of 1889, was one of the ways in
which the servitude of right of way could be acquired. 1 This view is confirmed by the fact that
throughout the passages hereinabove quoted, the court's decision stresses that the people of
Dumangas have been passing over the public square to go to church since the town was founded
and the church was built, an "almost immemorable length of time." It would seem that the term
"priscription" used in said case was merely a loose expression that is apt to mislead unless the
court's reasoning is carefully analyzed.

Since 1889, however, the Civil Code repealed the prior legislation; and thereafter the right of way
could only be acquired by title and not by adverse possession (usucapio), saving those servitudes
already acquired before the Code came into effect (Decisions, Supreme Court of Spain 27 Oct.
1900, 1st February 1912; 11 May 1927, and 7 January 1920).

G.R. No. L-25887             July 26, 1966

BACOLOD-MURCIA MILLING CO., INC. and HON. JOSE F. FERNANDEZ, petitioners,
vs.
CAPITOL SUBDIVISION, INC. and THE HON. COURT OF APPEALS, respondents.

Quiazon, Sison, Camus, Yulo and Associates for petitioners.

Jose L. Africa for respondents.

REYES, J.B.L., J.:

The Bacolod-Murcia Milling Co., Inc., applied for a writ of certiorari to annul and set aside the
resolution adopted on 18 March 1966 by the Fourth Division of the Court of Appeals, in its Case CA-
G.R. No. 27141-R, entitled Capitol Subdivision, Inc. vs. Judge Jose F. Fernandez and Bacolod-
Murcia Milling Co., enjoining enforcement of a writ of preliminary injunction issued by respondent
Judge Fernandez in Civil Case No. 7698 of the Court of First Instance of Occidental Negros, upon
posting by Capitol Subdivision, Inc. of a bond in the sum of P50,000.00.

On 11 April 1966, we enjoined enforcement of the resolution of the Court of Appeals upon the Milling
Company's putting up a bond of P100,000.00. 1äwphï1.ñët

The entire case originated in a suit filed on 10 October 1965 by Bacolod-Murcia Milling Company
(hereinafter termed the Central) against Capitol Subdivision, Inc. (herein designated as the
Subdivision) "to award plaintiff a legal easement of right of way over defendant's property known as
"Hacienda Mandalagan", particularly Lots 410-3 and 1205 of the Bacolod cadastre. The complaint
averred that on 30 August 1920 the original owners of said "Hacienda" had entered into a milling
contract with the Central for a period of thirty (30) years, later extended to forty-five (45) years, from
the crop year 1920-1921; that the contract stipulated that the planter gratuitously ceded for a period
of forty-five (45) years a right of way for the railways, canals, water pipes and telephone lines that
the Central might require, and that although a certain portion of the "Hacienda" was intended for
subdivision the easement of right of way granted would be always respected; that pursuant to the
stipulation, the Central had built a railroad line occupying 2,138 lineal meters in length and seven (7)
meters wide, over the lands of the "Hacienda Mandalagan using the same for transporting to Sto.
Niño Dock the export sugar of the Central and its adherent planters, and other materials, that the
milling contracts would expire on the crop year 1964-1965, and the Subdivision had demanded from
plaintiff Central the removal of the railroad tracks and threatened to close the same; that such action,
if carried out, would cause irreparable damage to the Central and its planters, who have to fill a
yearly quota which is part of the commitment to the Republic of the United States, unless the right of
way and its continued use be legally recognized as a legal easement of right of way, upon payment
of reasonable compensation, for a period coterminous with the existence and operation of the
Central. Plaintiff then prayed for a writ of preliminary injunction to restrain the Subdivision from
interfering, obstructing, or preventing the passage of the Central's locomotives and cars, as
otherwise plaintiff's mill operation would be completely paralyzed.

Over the Subdivision's objections and motion to dismiss, on the ground that the complaint stated no
cause of action, the Court of First Instance, as previously noted, issued, on 13 October 1965, the
preliminary injunction prayed for by the Central. Its motions for reconsideration having proved
unavailing, the Subdivision resorted to the Court of Appeals on certiorari, alleging abuse of
discretion, and the Fourth Division, after answer by the Central, issued the resolution of 18 March
1966, which recites as follows:

It being admitted in respondent's answer to the petition for certiorari, etc., that the questions
— whether or not the sugar central of respondent's Bacolod-Murcia abuts a public highway;
whether or not said respondent's mill actually abuts a principal city street, and whether or not
 the said public highway is inadequate or insufficient — are matters of evidence that should
be first established during the trial of the merits of Civil Case No. 7698. Bacolod-Murcia
Milling, Co., Inc. vs. Capitol Subdivision, Inc., before respondent Judge; that pending
decision of the case just mentioned, it cannot be safely assumed that respondent Bacolod-
Murcia Milling Co., Inc., is entitled to the legal easement prayed for in its complaint therein;
that when respondent Judge issued the writ of preliminary injunction complained of, the
contractual easement had already expired, hence the said injunction was issued on the
premature assumption that respondent Bacolod-Murcia Milling Co., Inc., is entitled to the
legal easement prayed for by it; that one of the purposes for the issuance of a writ of
preliminary injunction is to maintain the status quo, which in this case is the fact that the right
of respondent Bacolod-Murcia Milling Co., Inc., to operate the right of way over petitioner's
property had already ceased with the said expiration or termination of its contractual
easement, and that for these reasons, in addition to those adduced by petitioner in its said
petition for certiorari etc., and in its rejoinder to respondent's answer, it follows that herein
petitioner is entitled to the issuance of a writ of preliminary injunction restraining respondent
Bacolod-Murcia Milling Co., Inc., its agents, representatives and employees from committing
acts of trespass upon the property of petitioner, more specifically, from passing its
locomotives and rail cars through the said property, and respondent Judge from enforcing
the writ of preliminary injunction that he has authorized under his order dated October 13,
1965 — it is ordered that, upon the filing of bond in the amount of P50,000.00, the said writ
of preliminary injunction prayed for by petitioner will be issued, until further order of this
Court.

"SO ORDERED."

The Central in turn resorted to this Court for certiorari against the resolution of the Court of Appeals,
alleging that the same virtually decides the case, usurping the functions of the trial judge, and,
unless restrained, would enervate and render nugatory whatever judgment might be rendered in the
main case.

After mature consideration and deliberation, this Court has reached the conclusion that the present
petition of the Central is unmeritorious, and should be dismissed. The records submitted by the
parties show that the Court of Appeals has correctly pointed out a fatal defect in the issuance of the
preliminary injunction by the Court of origin, and that is its having ignored the undisputed fact that
the Central's right to use the railway across the lands of the respondent subdivision expired with its
milling contract, i.e., on 30 September 1965. From and after that date, the Central had to rely strictly
on its being entitled to a compulsory servitude without first establishing the preconditions for its grant
fixed by Articles 649 and 650 of the Civil Code of the Philippines:

(1) That it is surrounded by other immovables and has no adequate outlet to a public
highway (Art. 649, par. 1);

(2) After payment of proper indemnity (Art. 649, p. 1, end);

(3) That the isolation was not due to the Central's own acts (Art. 649, last par.); and

(4) That the right of way claimed is "at the point least prejudicial to the servient estate; and
insofar as consistent with this rule, where the distance from the dominant estate to a public
highway may be the shortest (Art. 650).

By express provision of law, therefore, a compulsory right of way can not be obtained unless the four
requisites enumerated are first shown to exist, and the burden of proof to show their existence was
on the Central. Nowhere in the complaint is any specific averment, nor is there in the Court of First
Instance orders for the issuance of the writ of temporary injunction, and denying its reconsideration,
any specific finding, even preliminary, that each and everyone of the four preconditions do exist. The
Central's original complaint only makes reference to a reasonable compensation in paragraph 14
and no more. Assuming that such expression can be stretched into a manifestation that the Central
is willing to pay such compensation as may be ultimately fixed by the Court, it still is not the
prepayment required by Article 649 of the Civil Code; so that all four requisites are lacking. This
deficiency made the issuance of a preliminary injunction improvident and arbitrary, for the first
condition for the granting of the writ is "that the plaintiff is entitled to the relief demanded" (sec. 3[a]),
Rule 58, Revised Rules) and "that the complaint in the action is verified, and shows facts entitling
the plaintiff to the relief demanded" (section 4[a], Rule 58). None of the four requisites for compelling
the grant of a right of way being shown, the title or right of petitioner Central to the relief demanded
is not clearly established and the extraordinary writ of injunction should not have been issued, since
injunction, whether preliminary or final, is not designed to protect contingent or future rights.

The basic rule in this matter is laid down in 32 C.J. 34, 35, quoted with approval in North Negros
Sugar Co. vs. Hidalgo, 63 Phil. 671, 677:

"x x x Where it is clear that the complainant does not have the right that he claims, he is not
entitled to an injunction, either temporary or perpetual, to prevent a violation such supposed
right. ... An injunction will not issue to protect of a right not in esse and which may never
arise or to restrain an act which does not give rise to a cause of action, x x x ." (32 C.J., pp.
34, 35.)

To the same effect is the rule stated in American Jurisprudence (Vol. 28, section 26, p. 517):

"Injunction, like other equitable remedies, will issue only at the instance of a suitor who has
sufficient interest or title in the right or property sought to be protected. A court of equity has
no power to issue an injunction where only abstract rights are involved. For the court to act
there must be an existing basis of facts affording a present right which is directly threatened
by the act sought to be enjoined. An impending or threatened invasion of some legal right of
the complainant, and some interest in preventing the wrong sought to be perpetrated must
be shown. It is always a ground for denying injunction that the party seeking it has
insufficient title or interest to sustain it, and no claim to the ultimate relief sought — in other
words, that he shows no equity. Want of equity on the part of the plaintiff in attempting to use
the injunctive process of the court to enforce a mere barren right will justify the court in
refusing the relief even though the defendant has little equity on his side. The complainant's
right or title, moreover, must be clear and unquestioned, for equity, as a rule, will not take
cognizance of suits to establish title, and will not lend its preventive aid by injunction where
the complaint's title or right is doubtful or disputed. He must stand on the strength of his own
right or title, rather than on the weakness of that claimed by his adversary." (28 Am. Jur.,
Sec. 26; Emphasis supplied.)

The possibility of irreparable damage, without proof or violation of an actually existing right, is no
ground for an injunction, being mere damnum absque injuria. In Boix, et al., vs. Ilao, et al., G.R. No.
L-20010, 30 October 1962, this Court held:

"It may be observed that the original order of March 29, 1962, granting the writ of preliminary
injunction that restrained petitioners from obstructing the passage of Batalla's trucks, was
based on the allegation in the complaint of the existence of plaintiff's right to the use of the
road. In its order of June 18, 1962, dissolving the writ of injunction, the lower court found
otherwise and declared the said road as "belonging to defendants and that plaintiff has not
 acquired any right to use the same for her logging purposes." Later, however, or on July 13,
1962, the lower court, without setting aside this order of June 18, 1962 expressly declaring
the road as belonging to defendants and that plaintiff has not acquired any right to use the
same, the respondent judge revived the injunction on the mere representation of plaintiff that
she had to load and ship her lumber on July 18, 1962. This, we believe, constitutes no
sufficient justification for her use of petitioner Boix' road, against the latter's will. Upon the
facts before the court at the time, it was irregular and improper and was a grave abuse of
discretion to issue or revive the mandatory injunction compelling respondent Boix to permit
the use of his private road by the plaintiff who up to that time the court has declared not to
have acquired any right to use the same." (Emphasis supplied).

In truth, the court of origin seems to have proceeded on the erroneous assumption that, even after
expiration of its contractual right of way, petitioner Central was entitled to a compulsory right of way
in the same location and route it had been using up to the present. This is not true: the Central's use
of the present railway for the preceding 45 years was based on the assent of the Subdivision's
predecessors-in-interest, as evidenced by their milling contract, while a compulsory servitude of right
of way on the same spot and route must be predicated on the minimum inconvenience to the would
be servient estate, in addition to the other requisites above set forth. There is no specific finding by
the court of origin that the prerequisites exist, and the lack of it suffices to negate the Central's right
to the servitude claimed, as it likewise negates the propriety of the temporary injunction issued.

In issuing the preliminary writ for defendant to permit the Central to use its railway, in the manner
established under the milling contract, the court of origin in effect extended that corresponding part
of the contract even beyond the term stipulated by the parties. Such action is not warranted by law.
The function of an injunction is the maintenance of the status quo as of the time of its issuance, and
at that time, the right of the Central under the milling contract had uncontrovertibly expired. It needs
no emphasizing that the court can not create contracts between the parties.

Neither can it be said that the isolation in which petitioner Central would find itself, if not allowed to
use its contractual right of way, was not due to its own acts. The Central had every reason to know
that its continued operation of the railway in its present route would expire on 30 September 1965,
and is held bound to know the requisites upon which the law conditions the right to demand a
compulsory right of way. Yet the record is bereft of showing that the petitioner Central took
seasonable any legal or otherwise, to secure the uninterrupted operation of the railway in question.
This laches of the Central is another reason that makes the issuance of the preliminary junction
complained of entirely unwarranted and abusive, for a remedy based on equity may not be awarded
in favor of those who sleep on their rights.

Finally, the charge of petitioner Central, that the resolution of the Court of Appeals anticipated the
final decision on the merits by the court below, is without merit. Said resolution correctly declared
that the preliminary injunction was issued on an erroneous premise, "the premature assumption that
respondent Bacolod-Murcia Milling Co., Inc., is entitled to the legal easement prayed for by it", since
the existence of the statutory requisites for such easement had not been properly averred or proved,
as elsewhere discussed in this decision. Of course, petitioner may duly show at the hearing on the
merits that the preconditions required by the Civil Code do actually exist; but until that is done, the
right to the legal servitude is not clear, and the writ of injunction is unwarranted, and issued in grave
abuse of discretion.

Wherefore, the petition for certiorari is dismissed, and the preliminary injunction previously issued by
this Court is lifted and set aside, and the injunction of the Court of Appeals is restored. Costs against
petitioner, Bacolod-Murcia Milling Co., Inc.
G.R. No. L-33423 December 22, 1971

TALISAY-SILAY MILLING CO., INC., petitioner,

vs.
COURT OF FIRST INSTANCE OF NEGROS OCCIDENTAL, DR. TRINO MONTINOLA, ESTATE
OF BERNARDINO (RODOLFO) JALANDONI, SALVADOR LACSON, ET AL., respondents.

Jesus G. Barrera and Vicente F. Forteza for petitioner.

Arsenio Al. Acuña for private respondents.

CASTRO, J.:

At about the end of the sugar crop year 1969-1970, the petitioner Talisay-Silay Milling Co., Inc.
(hereinafter referred to as the Central) faced the prospect of a severe cut-off, in railway connections,
from the sugarcane plantations surrounding its mill. The respondents Trino Montinola, Estate of
Bernardino Jalandoni, and about 39 others (hereinafter referred to as the respondent landowners)
had refused to extend the 50-year contractual right of way granted to the Central's railway complex
in the Talisay Silay mill district and outlying areas. In order to keep its railway lines open, the Central
obtained several writs of preliminary injunction from the respondent Court of First Instance of Negros
Occidental. Subsequently, however, these writs were dissolved at the instance of the respondent
landowners. Unable to revive the court's injunction orders, the Central came to us by way of special
civil action for certiorari and prohibition with preliminary injunction.

On May 5, 1971, upon the Central's posting of a bond in the amount of P100,000, we enjoined the
respondent court and the respondent landowners from giving effect to the various orders denying
continuance of the Central's railway operations in the areas concerned. Following its receipt of our
injunction order, the respondent court directed the restoration of the railroad tracks in the places
where the same had already been dismantled, all at the expense of the landowners who had caused
the uprooting of the said tracks. This latter action of the respondent court was likewise halted by us
on November 25, 1971, pending final adjudication on the merits.

The record shows that the Central has been operating in the Talisay-Silay mill district in Negros
Occidental as early as in the sugar crop year 1920-1921. Sugarcane grown in the district and
outlying areas was being processed into sugar and other products in its mill. Coinciding with the start
of its operations in 1920, the Central entered into identical milling contracts with the sugarcane
planters in the mill district, among them the respondent landowners. Under these contracts, the
Central was granted the right to construct and maintain railroad lines traversing the planters'
properties for the hauling of sugarcane from the various plantations in the mill district to the mill site.
The identical milling contracts, as with the contractual railway easements, were for a period of fifty
years to expire at the end of the 1969-l970 sugar crop year.

On July 25, 1970 the Central lodged a complaint again the respondent landowners "for the
conversion of the contractual easement of right of way into a legal easement." The essential
allegations of this complaint read as follows:
 6) That there is no other way by which the locomotives of the plaintiff can pass in
order to reach the plantations of planters growing sugar canes in the Talisay-Silay
Mill District and milling with plaintiff, except thru the railroad lines travelling the
parcels of land indicated in "Annex B", which lines altogether form a continuous
system of railroad transportation plaintiff's mill is surrounded by other immovables,
and there is no outlet to a public highway to which it can haul the canes of said
planters to its mill, said railways system being more particularly indicated in the
Sketch attached hereto as Annex "C";

7) That when the mill of the plaintiff was constructed 1920, and railroad tracks were
laid out and likewise erected and maintained, on the parcels of land indicated on
Annex "B" was on other properties, pursuant to the milling contracts aforesaid, it was
in the expectation that the railroad right of way would be maintained and continued
not only during the 50 period, but also for a period coterminous with the existence of
the Central, as the Central was constructed with the railway system as the sole,
adequate, expeditious, most convenient means of hauling of planter's canes to the
mill;

8) That the railroad tracks traversing the different parcels of land indicated on
Annexes "B" and "C" are on portions thereof least prejudicial to the owners-
defendants herein;

9) That before the expiration of the railroad right of way over the lots indicated in
Annex "B", the plaintiff by means of letters sent to each and every defendant herein,
offered to lease the area in their respective properties occupied by the railroad tracks
of the plaintiff at an annual lease rental of P0.20 a sq. meter, xerox copies of said
letters being attached hereto as Annex "D", being attached hereto to the complaint of
the particular defendant, and made integral parts hereof, however, defendant failed
to answer the letters sent to each one of them, which failure amounts to a refusal of
said offer or altogether refused to entertain the offer of plaintiff and, instead,
demanded the remove of the railroad tracks of plaintiff presently erected on their
respective properties, or otherwise threatened to remove and/or close the same for
the passage of plaintiff's locomotives and cane cars on the ground that the 50 years'
period for railroad right of way has expired.

Further, as a ground for its petition for the issuance of a writ of preliminary injunction, the Central
expressed apprehension of irreparable damage to itself, to the planters whose sugarcane needs
hauling from their plantations to the mill, and to the national economy in general, that would result
from closure of the Central's railways lines on the respondent landowners' properties.

In ultimately denying, after due hearing, the injunction sought by the Central, the respondent court, in
its orders of December 8, 1970, January 4, 1971, and February 26, 1971, heavily relied on the
rulings of this Court in Bacolod-Murcia Milling Co., Inc. vs. Capital Subdivision, Inc. (L-25887, July
26, 1966, 17 SCRA 731), Angela Estate, Inc. vs. Court of First Instance of Negros Occidental (L-
27084, July 31, 1969, 24 SCRA 500), and Locsin vs. Climaco (L-27319, January 31, 1969, 26 SCRA
816). The Central urges us to declare the said rulings inapplicable to the case at bar and to hold that
the respondent Court gravely abused its discretion in denying the Central's petition for preliminary
injunction.

The Bacolod-Murcia, Angela Estate, and Locsin cases also involved sugar centrals in Negros
Occidental whose milling contracts, as with whose easements of railway passage, with the adherent
plantations had expired. On the question of whether preliminary injunction may be secured to
maintain the centrals' continuous railway passage over the properties of the demurring landowners,
this Court, in sum, held that:

1. The function of an injunction is the maintenance of the status quo as of the time of its issuance.
Injunction will not issue to allow a central continued use of its expired right of way in the manner
established under its former milling contracts with the planters. Courts cannot create contracts
between the parties through the expedient of injunctive relief.

2. After the central's right to maintain and use the railroad tracks over the properties of the
landowners incontrovertibly expired with the milling contracts, the central has to rely strictly on its
supposed entitlement to a compulsory servitude of right of way under the Civil Code, but it cannot
claim any such servitude without first establishing the preconditions for its grant, namely, (a) that it is
surrounded by other immovables and has no adequate outlet to a public highway; (b) after payment
of proper indemnity; (c) that the isolation is not the result of the centrals own acts; and (d) that the
right of way claimed at the point least prejudicial to the servient estate, and, so far as consistent with
this rule, where the distance from the dominant estate to a public highway may be the short test. 1

The foregoing preconditions were not properly established in the courts below by the central's
concerned in the three cases mentioned. Their naked claim that they were entitled to compulsory
easements of right of way was not enough to warrant the issuance of preliminary injunctions in their
favor.

3. Injunction, whether preliminary or final, is not signed to protect contingent or future rights. An
injunction will not issue to protect a right not in esse and which may never arise, or to restrain an act
which does not arise to a cause of action. The complainant's right or title, moreover, must be clear
and unquestioned, for equity, as rule, will not take cognizance of suits to establish title, and will not
lend its preventive aid by injunction where the complainant's title or right is doubtful or disputed. The
possibility of irreparable damage, without proof of violation of an actual existing right, is no ground
for an injunction, being mere damnum absque injuria.

After assessing the facts obtaining in the case at bar, we do not see any cogent reason why the
rulings essayed above should not apply.

The Central points out that at the time it commenced litigation against the respondent landowners,
its contractual right of way still subsisted. The petitioner thus argues that the injunction issued shortly
thereafter was proper because it merely saw to the preservation of the status quo. This, to our mind,
is a simplistic view of the meaning of "status quo." True, at the time the injunction was initially issued
by the court below, the Central had open and free use of the easements of right of way over the
properties of the respondent landowners. It is equally true, however, that such contractual
easements were fast coming to an end. The fact of the normal running of the period during which the
milling contracts should last, is part too of the status quo, and it would not serve the salutary function
of injunctive relief to simply halt the same.

The factual disparity of the case at bar from the situations obtaining in the Bacolod-Murcia, etc.,
cases is not substantial and does not give additional leverage to the Central insofar as it must deal
with the respondent landowners respecting its desire to obtain a legal easement of right of way for its
railway system. The Central claims that it has fulfilled all the preconditions prescribed in articles 649
and 650 of the Civil Code or, at the very least, has alleged their attendance in its verified complaint.
This claim of the Central is self-serving.

First, as regards the requisite that the Central's mill must be shown to be surrounded by other
immovables and has no adequate outlet to a public highway, the complaint clearly shows that the
Central, even as it assumes the role of a dominant estate, wants a railway access to the fields of its
planters to be able to haul the latter's sugarcane to the milling site. It does not seek access to a
public highway. As a matter of fact, the court a quo made a finding from the sketch submitted by the
Central that "the entire length of one side or plaintiff's mill site abuts the provincial road, which
certainly is a most adequate outlet to a public highway." After examining the said sketch ourselves,
we do not see any error in such findings.

Second, the Central's offer to lease the affected portions of the respondent landowners' properties
for P0.20 per square meter per annum is not the "prepayment" referred to in our previous decisions.
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 is
constituted.  The fact that a voluntary agreement upon the extent of compensation to be paid cannot
2

be reached by the parties involved, is not an impediment to the establishment of such easement.
Precisely, the action 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. Notably, the action filed by
the Central did not opt for this.

Third, as regards the requisite that the isolation is not the result of the Central's own acts, the record
shows that the Central has acted to secure the continuance of its easements of right of way at the
eleventh hour when its fifty year milling contracts with the respondent landowners were on their last
few months of life. This laches on the part of the Central makes the denial of the preliminary
injunction all the more justified, for "a remedy based on equity may not be awarded in favor of those
who sleep on their rights."3

Finally, the Central's cardinal mistake is its assumption that the railroad route secured to it under its
former milling contracts with the respondent landowners is the same route the court would grant the
Central in the event the latter succeeds in proving its right to a legal servitude. It made no attempt to
negotiate with the respondent landowners for such railroad connections as will be least prejudicial to
the latter's estates, and, insofar as consistent with this norm, where the distance from the Central to
the proposed outlet is the shortest. Nor yet did the Central, in its complaint, ask the court to fix the
location and length of the servitude sought in the manner and under the limitations defined by law.

In sum, as in Bacolod-Murcia, Angela Estate, and Locsin, the herein Central's right to the legal
easement of right of way over the properties of the respondent landowners is not clear. And, unless
it can show otherwise during the hearing on the merits, the Central cannot ask for the establishment
of the said legal servitude in its favor, much less demand the restoration of the injunction orders
dissolved by the respondent court.

ACCORDINGLY, we deny the present petition. The preliminary injunction we issued on May 5, 1971
against the respondents is hereby dissolved. Our order of November 25, 1971, enjoining the
respondent court from directing the restoration of the dismantled railroad tracks at the expense of
the respondent landowners, is hereby made permanent. Costs against the petitioner Talisay-Silay
Milling Co., Inc.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, Fernando, Teehankee, Barredo, Villamor and
Makasiar, JJ., concur.

G.R. No. 80511             January 25, 1991

COSTABELLA CORPORATION, petitioner,
vs.
COURT OF APPEALS, KATIPUNAN LUMBER CO., INC., AURORA BUSTOS LOPEZ, MANUEL
S. SATORRE, JR., JOSEFA C. REVILLES, FELIX TIUKINHOY, JR., PERFECTA L. CHUANGCO,
and CESAR T. ESPINA, respondents.

Roco, Bunag, Kapunan & Migallos for petitioner.

Albano, Garcia & Diaz Law Offices for Katipunan Lumber Co., Inc.
Zosa & Quijano Law Offices for respondents.

SARMIENTO, J.:

The principal issue raised in this petition for review on certiorari of the decision  dated May 30, 1986
1

of the Court of Appeals,  which modified the decision  rendered by the Regional Trial Court of Lapu-
2 3

Lapu City in Cebu, is whether or not the private respondents had acquired an easement of right of
way, in the form of a passageway, on the petitioner's property.

It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122 and
5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it had
constructed a resort and hotel. The private respondents, on the other hand, are the owners of
adjoining properties more particularly known as Lots Nos. 5123-A and 5123-C of the Opon Cadastre.

Before the petitioner began the construction of its beach hotel, the private respondents, in going to
and from their respective properties and the provincial road, passed through a passageway which
traversed the petitioner's property. In 1981, the petitioner closed the aforementioned passageway
when it began the construction of its hotel, but nonetheless opened another route across its property
through which the private respondents, as in the past, were allowed to pass. (Later, or sometime in
August, 1982, when it undertook the construction of the second phase of its beach hotel, the
petitioner fenced its property thus closing even the alternative passageway and preventing the
private respondents from traversing any part of it.)

As a direct consequence of these closures, an action for injunction with damages was filed against
the petitioner by the private respondents on September 2, 1982 before the then Court of First
Instance of Cebu. 4

In their complaint, the private respondents assailed the petitioner's closure of the original
passageway which they (private respondents) claimed to be an "ancient road right of way" that had
been existing before World War II and since then had been used by them, the community, and the
general public, either as pedestrians or by means of vehicles, in going to and coming from Lapu-
Lapu City and other parts of the country. The private respondents averred that by closing the alleged
road right of way in question, the petitioner had deprived them access to their properties and caused
them damages.

In the same complainant, the private respondents likewise alleged that the petitioner had
constructed a dike on the beach fronting the latter's property without the necessary permit,
obstructing the passage of the residents and local fishermen, and trapping debris and flotsam on the
beach. They also claimed that the debris and flotsam that had accumulated prevented them from
using their properties for the purpose for which they had acquired them. The complaint this prayed
for the trial court to order the re-opening of the original passageway across the petitioner's property
as well as the destruction of the dike.
5

In its answer,  the petitioner denied the existence of an ancient road through its property and
6

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.  The appellate court pointed out that an easement of right of way is a discontinuous one
9

which, under Article 622 of the New Civil Code, may only be acquired by virtue of a title and not by
prescription.  That notwithstanding, the appellate court went on to rule that ". . . in the interest of
10

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."  Thus the 11

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  denying the said motion. The Appellate Court however in denying the petitioner's motion
13

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  and as such can not be acquired by prescription.  Insofar therefore as the appellate
15 16

court adhered to the foregoing precepts, it stood correct. Unfortunately, after making the correct
pronouncement, the respondent Appellate Court did not order the reversal of the trial court's decision
and the dismissal of the complaint after holding that no easement had been validly constituted over
the petitioner's property. Instead, the Appellate Court went on to commit a reversible error by
considering the passageway in issue as a compulsory easement which the private respondents, as
owners of the "dominant" estate, may demand from the petitioner the latter being the owner of the
"servient" estate.

It is provided under Articles 649 and 650 of the New Civil Code that:

Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables pertaining to other persons and
without adequate outlet to a public highway, is entitled to demand a right of way through the
neighboring estates, after payment of the proper indemnity.

Should this easement be established in such a manner that its use may be continuous for all
the needs of the dominant estate, establishing a permanent passage, the indemnity shall
consist of the value of the land occupied and the amount of the damage caused to the
servient estate.
 In case the right of way is limited to the necessary passage for the cultivation of the estate
surrounded by others and for the gathering of its crops through the servient estate without a
permanent way, the indemnity shall consist in the payment of the damage caused by such
encumbrance.

This easement is not compulsory if the isolation of the immovable is due to the proprietor's
own acts.

Art. 650. The easement of right of way shall be established at the point least prejudicial to
the servient estate, and, insofar as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest.

Based on the foregoing, the owner of the dominant estate may validly claim a compulsory right of
way only after he has established the existence of four requisites, to wit: (1) the (dominant) estate is
surrounded by other immovables and is without adequate outlet to a public highway; (2) after
payment of the proper indemnity; (3) the isolation was not due to the proprietor's own acts; and (4)
the right of way claimed is at a point least prejudicial to the servient estate. Additionally, the burden
of proving the existence of the foregoing pre-requisites lies on the owner of the dominant estate. 17

Here, there is absent any showing that the private respondents had established the existence of the
four requisites mandated by law. For one, they failed to prove that there is no adequate outlet from
their respective properties to a public highway. On the contrary, as alleged by the petitioner in its
answer to the complaint, and confirmed by the appellate court, "there is another outlet for the
plaintiffs (private respondents) to the main road."  Thus, the respondent Court of Appeals likewise
18

admitted that "legally the old road could be closed."  Yet, it ordered the re- opening of the old
19

passageway on the ground that "the existing outlet (the other outlet) is inconvenient to the
plaintiff."  On this score, it is apparent that the Court of Appeals lost sight of the fact that the
20

convenience of the dominant estate has never been the gauge for the grant of compulsory right of
way.  To be sure, the true standard for the grant of the legal right is "adequacy." Hence, when there
21

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.  They are demanded by necessity, that is, to enable owners of isolated estates to make
23
full use of their properties, which lack of access to public roads has denied them.  Under Article 649
24

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.  Thus, as Manresa had
26

pointed out, if the passageway consists of an "inaccessible slope or precipice,"  it is as if there is no
27

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."  Yet, each case must be weighed according to its individual merits,
29

and judged according to the sound discretion of the court. "The court," says Tolentino, "is not bound
to establish what is the shortest; a longer way may be established to avoid injury to the servient
tenement, such as when there are constuctions or walls which can be avoided by a roundabout way,
or to secure the interest of the dominant owner, such as when the shortest distance would place the
way on a dangerous decline." 30

It is based on these settled principles that we have resolved this case.

WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987, of the
respondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby
DISMISSED. Costs against the private respondents.

SO ORDERED.

G.R. No. 97039 April 24, 1992

CONCORDIO ABELLANA, SR., PEDRO E. MENDEZ, VERANO BADANA, CONCORDIO
ABELLANA, JR., TEODOLFO ABELLANA, MUSSULINI BUCAO, REMEDIOS GARCIANO,
ALFREDO SY, JUANITO JABELLANA, CATALINO LABANDERO, PURISIMO JABELLANA,
ANDRES LASTIMOSA, LUCRESIA VDS. DE BENTE, PAULA VDA. DE BACUS, ARTURO
JABELLANA, FLORENTINO LARIOSA, LEODY DE LA PEÑA, PELAGIA JABELLANA, FE
GOCELA, SEVERINO QUINAMADA and NARCISA LASTIMOSA, petitioners,
vs.
HON. COURT OF APPEALS, ORLANDO P. NAYA, ROSENDO ESTOYE, JR. and the
MUNICIPAL GOVERNMENT OF TALISAY, CEBU, represented by the Mayor and Members of
the Sanguniang Bayan, respondents.

APOLINARIO ENGUIO, RICO VILLARIN, MARIA ROSARIO BALBUENA, JOSE TIROL,

ASUNCION DE LA PEÑA, ROGELIO B. GUYOT, LEONIZA FAUSTINO, MAMERTO ZAMORAS,
ANTONIO CAL, VICENTE ALMENDRAS, MICHAEL SERRANO, EDUARDO PADERNOS, MA.
LUZ SANCHEZ, R. CABARERO, OSCAR NAPOLI and ROBERTO BUENO, intervenors.

GRIÑO-AQUINO, J.:

The petitioners who live on a parcel of land abutting the northwestern side of the Nonoc Homes
Subdivision, sued to establish an easement of right of way over a subdivision road which, according
to the petitioners, used to be a mere footpath which they and their ancestors had been using since
time immemorial, and that, hence, they had acquired, through prescription, an easement of right of
way therein. The construction of a wall by the respondents around the subdivision deprived the
petitioners of the use of the subdivision road which gives the subdivision residents access to the
public highway. They asked that the high concrete walls enclosing the subdivision and cutting of
their access to the subdivision road be removed and that the road be opened to them.

The private respondents denied that there was a pre-existing footpath in the place before it was
developed into a subdivision. They alleged furthermore that the Nonoc Subdivision roads are not the
shortest way to a public road for there is a more direct route from the petitioners' land to the public
highway.

After trial, the trial court rendered judgment disposing as follows:

WHEREFORE, judgment is hereby rendered, and, accordingly, defendants Orlando

P. Naya and Rosendo Estoye, Jr. and the intervenors are hereby ordered to
demolish the subject fences or enclosures at the dead ends of Road Lots 1 and 3 of
the Nonoc Homes Subdivision at their expense and to leave them open for the use of
the plaintiffs and the general public, within fifteen (15) days from finality of this
judgment. The complaint as against defendant Municipal Government of Talisay,
Cebu is ordered dismissed. All counterclaims are ordered dismissed. No
pronouncement as to costs. (p.15, Rollo.)

However, on appeal by the defendants and intervenors (now private respondents), the appellate
court on October 17, 1990, reversed the appealed judgment. It found that:

As borne out by the records of the case, the abovementioned

requisites essential for the grant of an easement of right of way are
not obtaining in this case hence no alternative presents itself except
reversal of the judgment below. . . .
 However, the foregoing is without prejudice to the filing of the
appropriate action by the proper authorities. Records bear that
attention of the Municipal Mayor of Talisay was already called by the
Provincial Fiscal to Opinion No. 172, Series of 1975, of the
Department of Justice wherein the Acting Secretary of Justice opined
that "road lots in a private subdivision are private property and should
be acquired by the government by donation, purchase or
expropriation if they are to be utilized for a public highway. . . ."

xxx xxx xxx

WHEREFORE, the judgment appealed from is hereby REVERSED

and set aside. The Municipal Government of Talisay, Cebu, at its
option, may institute the proper action for expropriation. (p. 22, Rollo)

In an order dated January 9, 1991, the appellate court denied petitioners' motion for reconsideration
of the aforesaid decision. Hence, this petition for review in which the petitioners allege that the Court
of Appeals erred:

1. in not holding that the easement claimed by them is a legal easement established
by law (Art. 619. Civil Code) and acquired by them by virtue of a title under Art. 620,
Civil Code and P.D. No. 957 through the National Housing Authority which has
exclusive jurisdiction to regulate subdivision and condominium projects;

2. in not holding that the footpaths and passageways which were converted into
subdivision road lots have acquired the status of public streets in view of Section 4 of
Municipal Ordinance No. 1, Series of 1969 of Talisay, Cebu which provides that
subdivision roads shall be used not only for the exclusive use of the homeowners but
also for the general public, and Section 5 of Ordinance No. 5, Series of 1974, which
provides that "those subdivision road lots whose use by the public are (sic) deemed
necessary by the proper authorities shall be made available for public use" (p.
7, Rollo); and

3. in not determining whether or not the closure of the dead ends of road lots 1 and 3
of the Nonoc Homes Subdivision by the private respondents, Estoye and Naya, was
legal.

After deliberating on their petition for review of the decision dated October 17, 1990 of the Court of
Appeals in CA-G.R. CV No. 19948, and the private respondents' comments, we find that the petition
raises merely factual issues which are not reviewable by this Court under Rule 45 of the Rules of
Court, and that, in any event, no reversible error was committed by the Court of Appeals in
dismissing the complaint on the ground that the requisite conditions do not exist for the grant of an
easement of right of way in favor of the petitioners' land under Articles 649 and 650 of the Civil
Code. The appellate court did not err in holding that the road lots in a private subdivision are private
property, hence, the local government should first acquire them by donation, purchase, or
expropriation, if they are to be utilized as a public road.

Petitioners' assumption that an easement of right of way is continuous and apparent and may be
acquired by prescription under Article 620 of the Civil Code, is erroneous. The use of a footpath or
road may be apparent but it is not a continuous easement because its use is at intervals and
depends upon the acts of man. It can be exercised only if a man passes or puts his feet over
somebody else's land (4 Manresa 597; Haffman vs. Shoemaker, 71 SE 198, both cited on p. 454,
Vol. 2, 6th Ed., Paras, Civil Code of the Philippines). Hence, a right of way is not acquirable by
prescription (Cuaycong, et al, vs Benedicto, et al., 37 Phil. 781; Ronquillo, et al. vs. Roco, et al., 103
Phil. 84; Ayala de Roxas vs. Case, 8 Phil. 197).

Neither may petitioners invoke Section 29 of P.D. 957 which provides:

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.

The above provision applies to the owner or developer of a subdivision (which petitioners are not)
without access to a public highway.

The petitioners' allegation that the footpaths which were converted to subdivision roads have
acquired the status of public streets, is not well taken. In the first place, whether or not footpaths
previously existed in the area which is now known as the Nonoc Homes Subdivision, is a factual
issue which this Court may not determine for it is not a trier of facts.

The municipal ordinances which declared subdivision roads open to public use "when deemed
necessary by the proper authorities" (p. 7, Rollo) simply allow persons other than the residents of the
Nonoc Homes Subdivision, to use the roads therein when they are inside the subdivision but those
ordinances do not give outsiders a right to open the subdivision walls so they can enter the
subdivision from the back. As the private respondents pointed out in their Comment:

The closure of the dead ends of road lots 1 and 3 is a valid exercise of proprietary
rights. It is for the protection of residents in the subdivision from night prowlers and
thieves. And the public is not denied use of the subdivision roads, only that the users
must get inside the subdivision through the open ends of the road lots that link the
same to the public road. It is common to most, if not all subdivisions in Cebu, Metro
Manila and other places, that points of ingress to and egress from the subdivision are
the points where the subdivision roads intersect with public roads. It is of judicial
notice that most, if not all, subdivisions are enclosed and fenced with only one or few
points that are used as ingress to and egress from the subdivisions. (54-55, Rollo)

WHEREFORE, finding no merit in the petition for review, the same is DENIED with costs against the
petitioners.

SO ORDERED.

G.R. No. 75723 June 2, 1995

SIMEON FLORO, petitioner,

vs.
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.
ROMEO, 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
developing his subdivision's proposed access road as provided in his duly approved subdivision
plan.

Simeon Floro is the owner of a piece of land known as the Floro Park Subdivision situated in
Barangay Saluysoy, Meycauayan, Bulacan.   The subdivision has its own egress and ingress to and
1

from the MacArthur Highway by means of its Road Lot 4 and the PNR level crossing.

Orlando A. Llenado,   on the other hand, was the registered owner of two (2) parcels of land, with a
2

total area of 34,573 sq. meters, more or less,   known as the Llenado Homes Subdivision ("Llenado
3

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.   Bounded on the South by the 5 to 6 meter-wide
4

Palanas Creek,   which separates it from the Floro Park Subdivision, and on the west by ricelands
5

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 the 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 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 Prayer for the Issuance of a Writ of Preliminary
Mandatory Injunction and Damages. The complaint was docketed as Civil Case No. 6834-M and
raffled off to Branch XIX, presided over by Hon. Judge Camilo Montesa.

After hearing and ocular inspection, the trial court, in an order dated July 15, 1983,   granted the
7

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:

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 act or acts which will
prevent (LLENADO) or his agents or any person acting under (LLENADO's)
instructions 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.   He then filed with the Court of
8

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 its legal guardian of their four (4) minor children.   Trial on the merits
10

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   reads:
11

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:

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

b. P77,500.00 as 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 appeal by Llenado, the appellate court set aside the decision of the trial court in a
decision   promulgated on February 11, 1986, the dispositive portion of which reads as follows:
12

WHEREFORE, premises considered, the decision appealed from is hereby SET

ASIDE and another one entered:

(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:

(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   and granted Llenado's motion for partial execution
13

pending appeal.   The latter resolution provided in its dispositive portion, thus:
14

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 has 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,   enjoining the appellate court from carrying out its writ of partial execution pending appeal.
15

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.   There are, however, exceptional
17

circumstances that would compel the Court to review the findings of fact of the Court of Appeals,
summarized in Remalante v. Tibe   and subsequent cases   as follows: (1) when the inference made
18 19

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 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 findings of fact of the
Court of Appeals are premised on 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 for 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,   or was in relation to the easement of right of way granted in their favor, as
21

insisted by the Llenados,   the fact remains that no such contract of easement of right of way was
22

actually perfected between Floro and Llenado. Both Orlando   and Wenifreda Llenado   testified that
23 24

the conditions of the easement of right of way were still to be drawn 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   for the requested reopening and presumably for the requested easement of right of way,
26

Orlando rejected said conditions for being onerous.  27

In Dionisio v. Ortiz,   where therein private respondents claimed to have every right to use Howmart
28

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
respondents' gate and to stop them from using said gate as passageway to Howmart Road, the
Court said:

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 petitioners and QCIEA.
Thus the private respondents' 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."   Although such use was in anticipation of a voluntary easement of right of way, no such
29

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.

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

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,   appearing on page 120 of the
32

records of the HSRC, had the following attachments: (1) Sketch Plan of the property containing an
area of 34,973 sq. m.;   (2) Waterline Layout
33

Plan;   (3) Vicinity Plan;   (4) Road Plan Layout;   and (5) Consolidation Subdivision
34 35 36

Plan.   According to Ravello, as per Plans Exhs. "10-A" and "10-C", Road Lot 3 of the Emmanuel
37

Homes Subdivision starts and ends with adjacent properties; on one end, the property owned by
Mariano Monadero and at 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.   Having found on ocular inspection that the access road indicated in the Plan
38

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   submitted by Orlando Llenado, the names
40

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.   The proposed amendments, as indicated in Exh. "11-A",   were: (1) the conversion of
41 42

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 saleable residential lots. The first proposed alteration, the conversion of Lot 14,
Block 6 into a road lot was approved on March 20,
1984.   The access road of the Llenado Homes Subdivision, however, remained in the Subdivision
43

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 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,   as approved by the HSRC, in compliance with Section 29 of Presidential Decree No.
44

957 which states:

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,   informing the latter that he did not give a road right of way over his property in favor of
45

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.   This new matter,
46

however, is inadmissible in evidence, not having been authenticated in accordance with Section 20,
Rule 132 of the Rules of 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
14, 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,   the court explained
48

what is meant by payment or prepayment of the required indemnity under Article 649 of the Civil
Code, as follows:

. . . 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 is constituted. The fact that a voluntary agreement upon
the extent of compensation cannot be reached by the parties involved, is not an
impediment to the establishment of such easement. Precisely, the action 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 dirt road, over the right of way that would connect Road Lot 3 of the Llenado Homes
Subdivision to the MacArthur Highway. Private respondent Llenado admitted that the Ipapo riceland
was no longer being cultivated and there was already a fence made of adobe wall constructed on
it.   Indications are that it has already been abandoned as a ricefield. There was no reason for
49

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 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 subdivisions in accordance with the duly approved
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 the Llenado Homes Subdivision to the
MacArthur National Highway and vice-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.   This easement can also
50

be established for the benefit of a tenement with an inadequate outlet, but not when the outlet is
merely inconvenient. Thus, when a person has already established an easement of this nature in
favor of his tenement, he cannot demand another, even if the first passage has defects which make
passage impossible, if those defects can be eliminated by proper repairs.  51

In the case of Ramos v. Gatchalian,   the Court denied access to Sucat Road through Gatchalian
52

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   and Costabella Corporation v. Court
53

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 traverse 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   for the denial of the easement of right of way, thus:
55
 . . . 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 the 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 a 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 on compensation. During the same period, the subject roads (Road Lots 4 and 5)
were damaged due to the 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, 1983 (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   is considered proper and reasonable. 
57 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 and reasonable.

WHEREFORE, this 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.
G.R. No. 112331 May 29, 1996

ANASTACIA QUIMEN, petitioner,
vs.
COURT OF APPEALS and YOLANDA Q. OLIVEROS, respondents.

BELLOSILLO, J.:p

IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will cause least prejudice shall be chosen. However, if the
two circumstances do not concur in a single tenement, the way where damage will be least shall be used even if not the shortest route. 1 This
is so because least prejudice prevails over shortest distance. This means that the court is not bound to establish what is the shortest
distance; a longer way may be adopted to avoid injury to the servient estate, such as when there are constructions or walls which can be
avoided by a round about way, or to secure the interest of the dominant owner, such as when the shortest distance would place the way on a
dangerous decline.

Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together with her
brothers Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of property situated in Pandi,
Bulacan. They agreed to subdivide the property equally among themselves, as they did, with the
shares of Anastacia, Sotero, Sulpicio and Rufina abutting the municipal road.
The share of Anastacia, located at the extreme left, was designated as Lot No. 1448-B-1. It is
bounded on the right by the property of Sotero designated as Lot. No. 14413-B-2. Adjoining Sotero's
property on the right are Lots Nos. 1448-B-3 and 1448-B-4 originally owned by Rufina and Sulpicio,
respectively, but which were later acquired by a certain Catalina Santos. Located directly behind the
lots of Anastacia and Sotero is the share of their brother Antonio designated as Lot No. 1448-B-C
which the latter divided into two (2) equal parts, now Lots Nos. 1448-B-6-A and 1448-B-6-B, each
with an area of 92 square meters. Lot No. 1448-B-6-A is located behind Anastacia's Lot No. 1448-B-
1, while Lot No. 1448-B-6-B is behind the property of Sotero, father of respondent Yolanda.

In February 1982 Yolanda purchased Lot No. 1448-B-6-A from her uncle Antonio through her aunt
Anastacia who was then acting as his administratrix. According to Yolanda, when petitioner offered
her the property for sale she was hesitant to buy as it had no access to a public road. But Anastacia
prevailed upon her to buy the lot with the assurance that she would give her a right of way on her
adjoining property for P200.00 per square meter.

Thereafter, Yolanda constructed a house on the lot she bought using as her passageway to the
public highway a portion of Anastacia's property. But when Yolanda finally offered to pay for the use
of the pathway Anastacia refused to accept the payment. In fact she was thereafter barred by
Anastacia from passing through her property. 2

In February 1986 Yolanda purchased the other lot of Antonio Quimen, Lot No. 1448-B-6-B, located
directly behind the property of her parents who provided her a pathway gratis et amore between their
house, extending about nineteen (19) meters from the lot of Yolanda behind the sari sari store of
Sotero, and Anastacia's perimeter fence. The store is made of strong materials and occupies the
entire frontage of the lot measuring four (4) meters wide and nine meters (9) long. Although the
pathway leads to the municipal road it is not adequate for ingress and egress. The municipal road
cannot be reached with facility because the store itself obstructs the path so that one has to pass
through the back entrance and the facade of the store to reach the road.
On 29 December 1987 Yolanda filed an action with the proper court praying for a right of way
through Anastacia's property. An ocular inspection upon instruction of the presiding judge was
conducted by the branch clerk of court. The report was that the proposed right of way was at the
extreme right of Anastacia's property facing the public highway, starting from the back of Sotero's
sari-sari store and extending inward by one (1) meter to her property and turning left for about five
(5) meters to avoid the store of Sotero in order to reach the municipal road  and the way was
3

unobstructed except for an avocado tree standing in the middle. 4

But on 5 September 1991 the trial court dismissed the complaint for lack of cause of action;
explaining that the right of way through Sotero's property was a straight path and to allow a detour
by cutting through Anastacia's property would no longer make the path straight. Hence the trial court
concluded that it was more practical to extend the existing pathway to the public road by removing
that portion of the store blocking the path as that was the shortest route to the public road and the
least prejudicial to the parties concerned than passing through Anastacia's property. 5

On appeal by respondent Yolanda, the Court of Appeals reversed the lower court and held that she
was entitled to a right of way on petitioner's property and that the way proposed by Yolanda would
cause the least damage and detriment to the servient estate.  The appellate court however did not
6

award damages to private respondent as petitioner did not act in bad faith in resisting the claim.

Petitioner now comes to us imputing ERROR to respondent Court of Appeals: (a) in disregarding the
agreement of the parties; (b) in considering petitioner's property as a servient estate despite the fact
that it does not abut or adjoin the property of private respondent; and, (c) in holding that the one-
meter by five-meter passage way proposed by private respondent is the least prejudicial and the
shortest distance to the public road.

Incidentally, petitioner denies having promised private respondent a right of way. She claims that her
agreement with private respondent was to provide the latter with a right of way on the other lot of
Antonio Quimen under her administration when it was not yet sold to private respondent. Petitioner
insists that passing through the property of Yolanda's parents is more accessible to the public road
than to make a detour to her property and cut down the avocado tree standing thereon.

Petitioner further argues that when Yolanda purchased Lot No.

1448-B-6-B in 1986 the easement of right of way she provided her (petitioner) was ipso
jure extinguished as a result of the merger of ownership of the dominant and the servient estates in
one person so that there was no longer any compelling reason to provide private respondent with a
right of way as there are other surrounding lots suitable for the purpose. Petitioner strongly maintains
that the proposed right of way is not the shortest access to the public road because of the detour
and that, moreover, she is likely to suffer the most damage as she derives a net income of P600.00
per year from the sale of the fruits of her avocado tree, and considering that an avocado has an
average life span of seventy (70) years, she expects a substantial earning from it. 7

But we find no cogent reason to disturb the ruling of respondent appellate court granting a right of
way to private respondent through petitioner's property. In fact, as between petitioner Anastacia and
respondent Yolanda their agreement has already been rendered moot insofar as it concerns the
determination of the principal issue herein presented. The voluntary easement in favor of private
respondent, which petitioner now denies but which the court is inclined to believe, has in fact
become a legal easement or an easement by necessity constituted by law. 8

As defined, an easement is a real right on another's property, corporeal and immovable, whereby the
owner of the latter must refrain from doing or allowing somebody else to do or something to be done
on his property, for the benefit of another person or tenement.  It is jus in re aliena, inseparable,
9
indivisible and perpetual, unless extinguished by causes provided by law. A right of way in particular
is a privilege constituted by covenant or granted by law   to a person or class of persons to pass
10

over another's property when his tenement is surrounded by realties belonging to others without an
adequate outlet to the public highway. The owner of the dominant estate can demand a right of way
through the servient estate provided he indemnifies the owner thereof for the beneficial use of his
property.  11

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

A cursory examination of the complaint of respondent Yolanda for a right of way   readily shows that
13

[E]ven before the purchase of the said parcels of land the plaintiff was reluctant to
purchase the same for they are enclosed with permanent improvements like a
concrete fence and store and have (sic) no egress leading to the road but because of
the assurance of the defendant that plaintiff will be provided one (1) meter wide and
five (5) meters long right of way in the sum of P200.00 per square meter to be taken
from Anastacia's lot at the side of a concrete store until plaintiff reach(es) her father's
land, plaintiff was induced to buy the aforesaid parcels of land . . . That the aforesaid
right of way is the shortest, most convenient and the least onerous leading to the
road and being used by the plaintiff's predecessors-in-interest from the very inception
...

The evidence clearly shows that the property of private respondent is hemmed in by the estates of
other persons including that of petitioner; that she offered to pay P200.00 per square meter for her
right of way as agreed between her and petitioner; that she did not cause the isolation of her
property; that the right of way is the least prejudicial to the servient estate.   These facts are
14

confirmed in the ocular inspection report of the clerk of court, more so that the trial court itself
declared that "[t]he said properties of Antonio Quimen which were purchased by plaintiff Yolanda
Quimen Oliveros were totally isolated from the public highway and there appears an imperative need
for an easement of right of way to the public highway."  15

Petitioner finally insists that respondent court erroneously concluded that the right of way proposed
by private respondent is the least onerous to the parties. We cannot agree. Article 650 of the New
Civil Code explicitly states that the easement of right of way shall be established at the point least
prejudicial to the servient estate and, insofar as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest. The criterion of least prejudice to the
servient estate must prevail over the criterion of shortest distance although this is a matter of judicial
appreciation. While shortest distance may ordinarily imply least prejudice, it is not always so as
when there are permanent structures obstructing the shortest distance; while on the other hand, the
longest distance may be free of obstructions and the easiest or most convenient to pass through. In
other words, where the easement may be established on any of several tenements surrounding the
dominant estate, the one where the way is shortest and will cause the least damage should be
chosen. However, as elsewhere stated, if these two (2) circumstances do not concur in a single
tenement, the way which will cause the least damage should be used, even if it will not be the
shortest.   This is the test.
16

In the trial court, petitioner openly admitted —

 Q. You testified during your direct examination about this plan, kindly
go over this and please point to us in what portion of this plan is the
house or store of the father of the (plaintiff )?

A. This one, sir (witness pointed a certain portion located near the
proposed right of way).

xxx xxx xxx

Q. Now, you will agree with me . . . that this portion is the front portion
of the lot owned by the father of the plaintiff and which was (sic)
occupied by a store made up of strong materials?

A. It is not true, sir.

Q. What materials does (sic) this store of the father of the plaintiff
made of?

A. Hollow blocks and the side is made of wood, sir.

xxx xxx xxx

Q. Just before your brother disposed that 1/2 portion of the lot in
question, what right of way does (sic) he use in reaching the public
road, kindly point to this sketch that he is (sic) using in reaching the
public road?

A. In my property, sir.

Q. Now you will agree with me . . . the main reason why your brother
is (sic) using this property is because there was a store located near
this portion?

A. Yes, and according to the father of Yolanda there is no other way

than this, sir.  7
1

The trial court found that Yolanda's property was situated at the back of her father's property and
held that there existed an available space of about nineteen (19) meters long which could
conveniently serve as a right of way between the boundary line and the house of Yolanda's father;
that the vacant space ended at the left back of Sotero's store which was made of strong materials;
that this explained why Yolanda requested a detour to the lot of Anastacia and cut an opening of one
(1) meter wide and five (5) meters long to serve as her right of way to the public highway. But
notwithstanding its factual observations, the trial court concluded, although erroneously, that
Yolanda was not entitled to a right of way on petitioner's property since a detour through it would not
make the line straight and would not be the route shortest to the public highway.

In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared that the proposed
right of way of Yolanda, which is one (1) meter wide and five (5) meters long at the extreme right of
petitioner's property, will cause the least prejudice and/or damage as compared to the suggested
passage through the property of Yolanda's father which would mean destroying the sari sari store
made of strong materials. Absent any showing that these findings and conclusion are devoid of
factual support in the records, or are so glaringly erroneous, this Court accepts and adopts them. As
between a right of way that would demolish a store of strong materials to provide egress to a public
highway, and another right of way which although longer will only require an avocado tree to be cut
down, the second alternative should be preferred. After all, it is not the main function of this Court to
analyze or weigh the evidence presented all over again where the petition would necessarily invite
calibration of the whole evidence considering primarily the credibility of witnesses, existence and
relevancy of specific surrounding circumstances, their relation to each other, and the probabilities of
the situation.   In sum, this Court finds that the decision of respondent appellate court is thoroughly
18

backed up by law and the evidence.

WHEREFORE, no reversible error having been committed by respondent Court of Appeals, the
petition is DENIED and the decision subject of review is AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. 143643            June 27, 2003

NATIONAL POWER CORPORATION, petitioner,

vs.
SPS. JOSE C. CAMPOS, JR. and MA. CLARA LOPEZ-CAMPOS, respondents.

CALLEJO, SR., J.:

This is a petition for review of the Decision1 dated June 16, 2000 of the Court of Appeals in CA-G.R.
CV No. 54265. The assailed decision affirmed in toto the Decision2 of the Regional Trial Court (RTC)
of Quezon City, Branch 98, which ordered petitioner National Power Corporation to pay, among
others, actual, moral and nominal damages in the total amount of P1,980,000 to respondents
Spouses Jose C. Campos, Jr. and Ma. Clara A. Lopez-Campos.

The petition at bar stemmed from the following antecedents:

On February 2, 1996, the respondents filed with the court a quo an action for sum of money and
damages against the petitioner. In their complaint, the respondents alleged that they are the owners
of a parcel of land situated in Bo. San Agustin, Dasmariñas, Cavite, consisting of 66,819 square
meters ("subject property") covered by Transfer Certificate of Title (TCT) No. T-957323. Sometime in
the middle of 1970, Dr. Paulo C. Campos, who was then the President of the Cavite Electric
Cooperative and brother of respondent Jose C. Campos, Jr., verbally requested the respondents to
grant the petitioner a right-of-way over a portion of the subject property. Wooden electrical posts and
transmission lines were to be installed for the electrification of Puerto Azul. The respondents
acceded to this request upon the condition that the said installation would only be temporary in
nature. The petitioner assured the respondents that the arrangement would be temporary and that
the wooden electric posts would be relocated as soon as permanent posts and transmission lines
shall have been installed. Contrary to the verbal agreement of the parties, however, the petitioner
continued to use the subject property for its wooden electrical posts and transmission lines without
compensating the respondents therefor. 3

The complaint likewise alleged that some time in 1994, the petitioner’s agents trespassed on the
subject property and conducted engineering surveys thereon. The respondents’ caretaker asked
these agents to leave the property. Thereafter, in 1995, a certain "Mr. Raz," who claimed to be the
petitioner’s agent, went to the office of respondent Jose C. Campos, Jr., then Associate Justice of
the Supreme Court, and requested permission from the latter to enter the subject property and
conduct a survey in connection with the petitioner’s plan to erect an all-steel transmission line tower
on a 24-square meter area inside the subject property. Respondent Jose Campos, Jr., refused to
grant the permission and expressed his preference to talk to the Chief of the Calaca Sub-station or
the head of the petitioner’s Quezon City office. The respondents did not hear from "Mr. Raz" or any
one from the petitioner’s office since then. Sometime in July or August of 1995, the petitioner’s
agents again trespassed on the subject property, presenting to the respondents’ caretaker a letter of
authority purportedly written by respondent Jose C. Campos, Jr. When the caretaker demanded that
the letter be given to him for verification with respondent Jose C. Campos, Jr. himself, the
petitioner’s agents refused to do so. Consequently, the caretaker ordered the agents to leave the
subject property.4

The complaint further alleged that on December 12, 1995, the petitioner instituted an expropriation
case involving the subject property before the RTC of Imus, Cavite, Branch 22. The case was
docketed as Civil Case No. 1174-95. The petitioner alleged in its complaint therein that the subject
property was selected "in a manner compatible with the greatest public good and the least private
injury" and that it (petitioner) had tried to negotiate with the respondents for the acquisition of the
right-of-way easement on the subject property but that the parties failed to reach an amicable
settlement.5

The respondents maintained that, contrary to the petitioner’s allegations, there were other more
suitable or appropriate sites for the petitioner’s all-steel transmission lines and that the petitioner
chose the subject property in a whimsical and capricious manner. The respondents averred that the
proposed right-of-way was not the least injurious to them as the system design prepared by the
petitioner could be further revised to avoid having to traverse the subject property. The respondents
vigorously denied negotiating with the petitioner in connection with the latter’s acquisition of a right-
of-way on the subject property.6

Finally, the complaint alleged that unaware of the petitioner’s intention to expropriate a portion of the
subject property, the respondents sold the same to Solar Resources, Inc. As a consequence, the
respondents stand to lose a substantial amount of money derived from the proceeds of the sale of
the subject property should the buyer (Solar Resources, Inc.) decide to annul the sale because of
the contemplated expropriation of the subject property. 7

The complaint a quo thus prayed that the petitioner be adjudged liable to pay the respondents,
among others, actual, nominal and moral damages:

WHEREFORE, premises considered, it is respectfully prayed that the Honorable Court

award the plaintiffs:

a. Actual damages for the use of defendants’ property since middle 1970’s, including
legal interest thereon, as may be established during the trial;

b. P1,000,000.00 as nominal damages;

c. P1,000,000.00 as moral damages;

d. Lost business opportunity as may be established during the trial;

e. P250,000.00 as attorney’s fees;

 f. Costs of suit.

Plaintiffs pray for other, further and different reliefs as may be just and equitable under the
premises.8

Upon receipt of the summons and complaint, the petitioner moved for additional time to file its
responsive pleading. However, instead of filing an answer to the complaint, the petitioner filed a
motion to dismiss on the ground that the action had prescribed and that there was another action
pending between the same parties for the same cause (litis pendencia). The respondents opposed
said motion. On May 2, 1996, the RTC issued an order denying the petitioner’s motion to dismiss.

The petitioner then moved for reconsideration of the aforesaid order. The respondents opposed the
same and moved to declare the petitioner in default on the ground that its motion for reconsideration
did not have the required notice of hearing; hence, it did not toll the running of the reglementary
period to file an answer.

On July 15, 1996, the RTC issued an order denying the petitioner’s motion for reconsideration.
Subsequently, on July 24, 1996, it issued another order granting the respondents’ motion and
declared the petitioner in default for its failure to file an answer. The petitioner filed a motion to set
aside the order of default but the same was denied by the RTC.

The petitioner filed a petition for certiorari, prohibition and preliminary injunction with the Court of
Appeals, docketed as CA-G.R. SP No. 41782, assailing the May 2, 1996, July 15, 1996 and July 24,
1996 Orders issued by the RTC as having been issued with grave abuse of discretion and to enjoin
it from proceeding with the case. On February 13, 1996, the CA dismissed the petition for certiorari,
prohibition and preliminary injunction filed by the petitioner in CA-G.R. SP No. 41782.

In the meantime, the respondents adduced their evidence ex parte in the RTC. As synthesized by
the trial court, the respondents adduced evidence, thus:

From the evidence thus far submitted, it appears that the plaintiffs spouses, both of whom
professional of high standing in society, are the absolute owners of a certain parcel of land
situated in Bo. San Agustin, Dasmariñas, Cavite, consisting of 66,819 square meters, more
or less, covered and embraced in TCT No. T-95732. Sometime in the mid-1970, Dr. Paulo C.
Campos, brother of Justice Jose Campos, Jr., then President of the Cavite Electric
Cooperative, approached the latter and confided to him the desire of the National Power
Corporation to be allowed to install temporary wooden electric posts on the portion of his
wife’s property in order that the high-tension transmission line coming from Kaliraya passing
thru that part of Cavite can be continued to the direction of Puerto Azul.

Having heard the plea of his brother and the fact that National Power Corporation was under
pressure because at the time that Puerto Azul was being developed there was no electricity
nor was there electrical lines towards that place and acting on the belief that the installation
of wooden electric posts would be temporary in nature, plaintiffs gave oral permission for the
NPC personnel to enter the said parcel of land. Dr. Paulo C. Campos, assured him that it
was just a temporary measure to meet the emergency need of the Puerto Azul and that the
wooden electric posts will be relocated when a permanent posts and transmission lines shall
have been installed. Pursuant to their understanding, the National Power Corporation
installed wooden posts across a portion of plaintiffs’ property occupying a total area of about
2,000 square meters more or less. To date, defendant NPC has been using the plaintiffs’
property for its wooden electrical posts and transmission lines; that the latter has estimated
that the aggregate rental (which they peg at the conservative rate of P1.00 per square meter)
of the 2,000 square meters for twenty-four (24) years period, would amount to the aggregate
sum of P480,000.00.

From the time National Power Corporation installed those temporary wooden posts, no
notice was ever served upon the plaintiffs of their intention to relocate the same or to install
permanent transmission line on the property. Also, there was no personal contact between
them. However, in late 1994, plaintiffs’ overseer found a group of persons of the defendant
NPC conducting survey inside the said property, and were asked to leave the premises upon
being discovered that they have no authority to do so from the owners thereof. Subsequently
thereafter, or sometime in 1995, a person by the name of Mr. Paz, bearing a letter from
Calaca Regional Office, went to see Justice Jose C. Campos, Jr. in his office, informing the
latter that he was authorized by the National Power Corporation to acquire private lands. In
the same breath, Mr. Paz requested his permission to let NPC men enter the subject
property and to conduct a survey in connection with its plan to erect an all steel transmission
line tower on a 24 square meter area inside plaintiffs’ property, but same was denied. Justice
Campos, however, expressed his preference to talk instead to the Chief of the Calaca Sub-
station or the Head of the NPC, Quezon City office. Since then, nothing however transpired.

Sometime in July or August 1995, plaintiffs learned that defendant’s agents again entered
the subject property. This time, they have presented to the caretaker a letter of authority
supposedly from Justice Jose C. Campos, Jr. And, when prodded to see the letter for
verification, defendant’s agents refused to do so. So, they were ordered out of the vicinity.
Plaintiffs stressed that defendant’s repeated intrusions into their property without their
expressed knowledge and consent had impugned on their constitutional right to protection
over their property.

Later, on December 12, 1995, plaintiffs received copy of summons and complaint in Civil
Case No. 1174-95 filed by the defendant before the Regional Trial Court, Fourth Judicial
Region, Branch 22, Imus, Cavite for the expropriation of 5,320 square meters of plaintiffs’
above-described property to be used as right-of-way for the all-steel transmission line tower
of the Calaca-Dasmariñas 230 KV T/L Project. But what had caused plaintiffs’ discomfiture is
the allegation in said complaint stating that the "parcel of land sought to be expropriated has
not been applied to nor expropriated for any public use and is selected by plaintiff in a
manner compatible with the greatest good and the least private injury" and that defendant
"had negotiated with (plaintiffs) for the acquisition of the right-of-way easement over the
portion of the same for the public purpose as above-stated at a price prescribed by law, but
failed to reach an agreement with them notwithstanding the repeated negotiations between
the parties".

Plaintiffs’ assert that at no instance was there a negotiation between them and the NPC or its
representative. The alleged "talk" initiated by Mr. Paz with Justice Campos, Jr. just ended in
the latter’s remonstrance and in prevailing upon the former of his preference to discuss the
matter with a more responsible officer of the National Power Corporation, such as the Chief
of the Calaca Sub-Station or the Head of NPC’s Office in Quezon City. But plaintiffs’ plea just
fell on the deaf ear. The next thing they know was Civil Case No. Q-1174-95 already filed in
court. A party to a case shall not do falsehood nor shall mislead or misrepresent the contents
of its pleading. That gross misrepresentation had been made by the National Power
Corporation in their said pleading is irrefutable.

Plaintiffs-spouses Campos declared that there are other areas more suitable or appropriate
that can be utilized as alternative sites for the all-steel transmission line tower. Just a few
meters from the planned right-of-way is an abandoned road occupied by squatters; it is a
 government property and the possession of which the NPC need not compensate. The latter
had not exercised judiciously in the proper selection of the property to be appropriated.
Evidently, NPC’s choice was whimsical and capricious. Such arbitrary selection of plaintiffs’
property despite the availability of another property in a manner compatible with the greatest
public good and the least private injury, constitutes an impermissible encroachment of
plaintiffs’ proprietary rights and their right to due process and equal protection.

Concededly, NPC’s intention is to expropriate a portion of plaintiffs’ property. This limitation

on the right of ownership is the paramount right of the National Power Corporation granted
by law. But before a person can be deprived of his property through the exercise of the
power of eminent domain, the requisites of law must strictly be complied with. (Endencia vs.
Lualhati, 9 Phil. 177) No person shall be deprived of his property except by competent
authority and for public use and always upon payment of just compensation. Should this
requirement be not first complied with, the courts shall protect and, in a proper case, restore
the owner in his possession. (Art. 433 Civil Code of the Philippines)

Records disclose that in breach of such verbal promise, defendant NPC had not withdrawn
the wooden electrical posts and transmission lines; said wooden electrical posts and
transmission lines still occupy a portion of plaintiffs’ property; that the NPC had benefited
from them for a long period of time already, sans compensation to the owners thereof.

Without first complying with the primordial requisites appurtenant to the exercise of the
power of eminent domain, defendant NPC again boldly intruded into plaintiffs’ property by
conducting engineering surveys with the end in view of expropriating 5,320 square meters
thereof to be used as right-of-way for the all-steel transmission line tower of the Calaca-
Dasmariñas 230 KV T/L Project. Such acts constitute a deprivation of one’s property for
public use without due compensation. It would therefore seem that the expropriation had
indeed departed from its own purpose and turns out to be an instrument to repudiate
compliance with obligation legally and validly contracted. 9

On September 26, 1996, the RTC rendered a decision finding the petitioner liable for damages to the
respondents. The dispositive portion of the RTC decision reads:

WHEREFORE, in view of the foregoing consideration, justment [sic] is hereby rendered in

favor of the plaintiffs, condemning the defendant to pay –

(a) Actual damages of P480,000.00 for the use of plaintiff’s property;

(b) One Million Pesos (P1,000,000.00) as moral damages;

(c ) Five Hundred Thousand Pesos (P500,000.00) as nominal damages;

(d) One Hundred Fifty Thousand Pesos (P150,000.00) as attorney’s fees; and

(e) Costs of suit in the amount of P11,239.00.

SO ORDERED.10

The petitioner appealed the decision to the Court of Appeals which on June 16, 1990 rendered a
decision affirming the ruling of the RTC.
Essentially, the CA held that the respondents’ claim for compensation and damages had not
prescribed because Section 3(i) of the petitioner’s Charter, Republic Act No. 6395, as amended, is
not applicable to the case. The CA likewise gave scant consideration to the petitioner’s claim that the
respondents’ complaint should be dismissed on the ground of litis pendencia. According to the CA,
the complaint a quo was the more appropriate action considering that the venue for the expropriation
case (Civil Case No. 1174-95) was initially improperly laid. The petitioner filed the expropriation
proceedings with the RTC in Imus, Cavite, when the subject property is located in Dasmariñas,
Cavite. Moreover, the parties in the two actions are not the same since the respondents were no
longer included as defendants in the petitioner’s amended complaint in the expropriation case (Civil
Case No. 1174-95) but were already replaced by Solar Resources, Inc., the buyer of the subject
property, as defendant therein.

The CA likewise found the damages awarded by the RTC in favor of the respondents just and
reasonable under the circumstances obtaining in the case.

The petitioner now comes to this Court seeking to reverse and set aside the assailed decision. The
petitioner alleges as follows:

The Court of Appeals grievously erred and labored under a gross misapprehension of fact in
finding that the Complaint below should not be dismissed on the ground of prescription.

II

The Court of Appeals erred in affirming the award of nominal and moral damages, attorney’s
fees and costs of litigation.11

Citing Article 620 of the Civil Code, the petitioner contends that it had already acquired the easement
of right-of-way over the portion of the subject property by prescription, the said easement having
been allegedly continuous and apparent for a period of about twenty-three (23) years, i.e., from
about the middle of 1970 to the early part of 1994. The petitioner further invokes Section 3(i) of its
Charter in asserting that the respondents already waived their right to institute any action for
compensation and/or damages concerning the acquisition of the easement of right-of-way in the
subject property. Accordingly, the petitioner concludes that the award of damages in favor of the
respondents is not warranted.

The petition is bereft of merit.

The petitioner’s claim that, under Article 620 of the Civil Code, it had already acquired by
prescription the easement of right-of-way over that portion of the subject property where its wooden
electric posts and transmission lines were erected is untenable. Article 620 of the Civil Code
provides that:

Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by
prescription of ten years.

Prescription as a mode of acquisition requires the existence of the following: (1) capacity to acquire
by prescription; (2) a thing capable of acquisition by prescription; (3) possession of the thing under
certain conditions; and (4) lapse of time provided by law.12 Acquisitive prescription may either be
ordinary, in which case the possession must be in good faith and with just title, 13 or extraordinary, in
which case there is neither good faith nor just title. In either case, there has to be possession which
must be in the concept of an owner, public, peaceful and uninterrupted. 14 As a corollary, Article 1119
of the Civil Code provides that:

Art. 1119. Acts of possessory character executed in virtue of license or by mere tolerance of
the owner shall not be available for the purposes of possession.

In this case, the records clearly reveal that the petitioner’s possession of that portion of the subject
property where it erected the wooden posts and transmission lines was merely upon the tolerance of
the respondents. Accordingly, this permissive use by the petitioner of that portion of the subject
property, no matter how long continued, will not create an easement of right-of-way by prescription.
The case of Cuaycong vs. Benedicto15 is particularly instructive. In that case, the plaintiffs for more
than twenty years made use of the road that passed through the hacienda owned by the defendants,
being the only road that connected the plaintiff’s hacienda to the public road. The defendants closed
the road in question and refused the use of the same unless a toll was paid. The plaintiffs therein
brought an action to enjoin the defendants from interfering with the use of the road. In support of
their action, the plaintiffs presented evidence tending to show that they have acquired the right-of-
way through the road by prescription. This Court rejected the contention, holding as follows:

Had it been shown that the road had been maintained at the public expense, with the
acquiescence of the owners of the estates crossed by it, this would indicate such adverse
possession by the government as in course of time would ripen into title or warrant the
presumption of a grant or of a dedication. But in this case there is no such evidence, and the
claims of plaintiffs, whether regarded as members of the public asserting a right to use the
road as such, or as persons claiming a private easement of way over the land of another
must be regarded as resting upon the mere fact of user.

If the owner of a tract of land, to accommodate his neighbors or the public in general, permits
them to cross his property, it is reasonable to suppose that it is not his intention, in so doing,
to divest himself of the ownership of the land so used, or to establish an easement upon it,
and that the persons to whom such permission, tacit or express, is granted, do not regard
their privilege of use as being based upon anything more than the mere tolerance of the
owner. Clearly, such permissive use is in its inception based upon an essentially revocable
license. If the use continues for a long period of time, no change being made in the relations
of the parties by any express or implied agreement, does the owner of the property affected
lose his right of revocation? Or, putting the same question in another form, does the mere
permissive use ripen into title by prescription?

It is a fundamental principle of the law in this jurisdiction concerning the possession of real
property that such possession is not affected by acts of a possessory character which are
"merely tolerated" by the possessor, which are or due to his license (Civil Code, arts. 444
and 1942). This principle is applicable not only with respect to the prescription of
the dominium as a whole, but to the prescription of right in rem. In the case of Cortes vs.
Palanca Yu-Tibo (2 Phil. Rep., 24, 38), the Court said:

The provision of article 1942 of the Civil Code to the effect that acts which are merely
tolerated produce no effect with respect to possession is applicable as much to the
prescription of real rights as to the prescription of the fee, it being a glaring and self-
evident error to affirm the contrary, as does the appellant in his motion papers.
Possession is the fundamental basis of prescription. Without it no kind of prescription
is possible, not even the extraordinary. Consequently, if acts of mere tolerance
produce no effect with respect to possession, as that article provides, in conformity
 with article 444 of the same Code, it is evident that they can produce no effect with
respect to prescription, whether ordinary or extraordinary. This is true whether the
prescriptive acquisition be of a fee or of real rights, for the same reason holds in one
and the other case; that is, that there has been no true possession in the legal sense
of the word. (Citations omitted)

Possession, under the Civil Code, to constitute the foundation of a prescriptive right, must be
possession under claim of title (en concepto de dueño), or to use the common law equivalent
of the term, it must be adverse. Acts of possessory character performed by one who holds by
mere tolerance of the owner are clearly not en concepto de dueño, and such possessory
acts, no matter how long so continued, do not start the running of the period of prescription. 16

Following the foregoing disquisition, the petitioner’s claim that it had acquired the easement of right-
of-way by prescription must perforce fail. As intimated above, possession is the fundamental basis of
prescription, whether ordinary or extraordinary. The petitioner never acquired the requisite
possession in this case. Its use of that portion of the subject property where it erected the wooden
poles and transmission lines was due merely to the tacit license and tolerance of the respondents.
As such, it cannot be made the basis of the acquisition of an easement of right-of-way by
prescription.

Neither can the petitioner invoke Section 3(i) of its Charter (Rep. Act No. 6395, as amended) to put
up the defense of prescription against the respondents. The said provision reads in part:

Sec. 3(i). … The Corporation or its representatives may also enter upon private property in
the lawful performance or prosecution of its business or purposes, including the construction
of transmission lines thereon; Provided, that the owner of such private property shall be paid
the just compensation therefor in accordance with the provisions hereinafter
provided; Provided, further, that any action by any person claiming compensation and/or
damages shall be filed within five years after the right-of-way, transmission lines,
substations, plants or other facilities shall have been established: Provided, finally, that after
the said period no suit shall be brought to question the said right-of-way, transmission lines,
substations, plants or other facilities nor the amounts of compensation and/or damages
involved;

Two requisites must be complied before the above provision of law may be invoked:

1. The petitioner entered upon the private property in the lawful performance or prosecution
of its businesses or purposes; and

2.The owner of the private property shall be paid the just compensation therefor.

As correctly asserted by the respondents, Section 3(i) of Rep. Act No. 6395, as amended,
presupposes that the petitioner had already taken the property through a negotiated sale or the
exercise of the power of eminent domain, and not where, as in this case, the petitioner was merely
temporarily allowed to erect wooden electrical posts and transmission lines on the subject property.
Significantly, the provision uses the term "just compensation," implying that the power of eminent
domain must first be exercised by the petitioner in accordance with Section 9, Article III of the
Constitution, which provides that "no private property shall be taken for public use without just
compensation."

This Court’s ruling in Lopez vs. Auditor General17 is likewise in point:

 The petitioner brought this case to this Court on the sole issue of prescription. He
cites Alfonso vs. Pasay City in which a lot owner was allowed to bring an action to recover
compensation for the value of his land, which the Government had taken for road purposes,
despite the lapse of thirty years (1924-1954). On the other hand, the respondents base their
defense of prescription on Jaen vs. Agregado which held an action for compensation for land
taken in building a road barred by prescription because it was brought after more than ten
years (i.e., thirty three years, from 1920 to 1953). They argue that the ruling
in Alfonso cannot be applied to this case because, unlike Alfonso who made repeated
demands for compensation within ten years, thereby interrupting the running of the period of
prescription, the petitioner here filed his claim only in 1959.

It is true that in Alfonso vs. Pasay City this Court made the statement that "registered lands
are not subject to prescription and that on grounds of equity, the government should pay for
private property which it appropriates though for the benefit of the public, regardless of the
passing of time." But the rationale in that case is that where private property is taken by the
Government for public use without first acquiring title thereto either through expropriation or
negotiated sale, the owner’s action to recover the land or the value thereof does not
prescribe. This is the point that has been overlooked by both parties.

On the other hand, where private property is acquired by the Government and all that
remains is the payment of the price, the owner’s action to collect the price must be brought
within ten years otherwise it would be barred by the statue of limitations. 18

Thus, the five-year period provided under Section 3(i) of Rep. Act No. 6395, as amended, within
which all claims for compensation and/or damages may be allowed against the petitioner should be
reckoned from the time that it acquired title over the private property on which the right-of-way is
sought to be established. Prior thereto, the claims for compensation and/or damages do not
prescribe. In this case, the findings of the CA is apropos:

Undeniably, NPC never acquired title over the property over which its wooden electrical
posts and transmission lines were erected. It never filed expropriation proceedings against
such property. Neither did it negotiate for the sale of the same. It was merely allowed to
temporarily enter into the premises. As NPC’s entry was gained through permission, it had
no intention to acquire ownership either by voluntary purchase or by the exercise of eminent
domain.19

The petitioner instituted the expropriation proceedings only on December 12, 1995. Indisputably, the
petitioner never acquired title to that portion of the subject property where it erected the wooden
electrical posts and transmission lines. Until such time, the five-year prescriptive period within which
the respondents’ right to file an action to claim for compensation and/or damages for the petitioner’s
use of their property does not even commence to run. The CA thus correctly ruled that Section 3(i) of
Rep. Act No. 6395, as amended, finds no application in this case and that the respondents’ action
against the petitioner has not prescribed.

With respect to the damages awarded in favor of the respondents, the petitioner avers, thus:

The Court of Appeals erred in affirming the award of nominal and moral damages, attorney’s
fees and costs of litigation.

It follows from Section 31(c) of R.A. 6395 that the award moral and nominal damages, as
well as attorney’s fees and costs are baseless. The right to claim them has likewise
prescribed.20
With our ruling that the claims of the respondents had not prescribed, the petitioner’s contention that
the respondents are not entitled to moral and nominal damages and attorney’s fees must fail. In
affixing the award for moral and nominal damages and attorney’s fees, the CA ratiocinated:

With respect to the fourth assignment of error, this Court is not persuaded to reverse much
less modify the court a quo’s findings.

An award of moral damages would require certain conditions to be met, to wit: (1) first, there
must be an injury, whether physical, mental or psychological, clearly sustained by the
claimant; (2) second, there must be a culpable act or omission factually established; (3) third,
the wrongful act or omission of the defendant is the proximate cause of the injury sustained
by the claimant; and (4) fourth, the award of damages is predicated on any of the cases
stated in Article 2219 of the Civil Code.

NPC made it appear that it negotiated with the appellees when no actual negotiations took
place. This allegation seriously affected the on-going sale of the property to Solar
Resources, Inc. as appellees seemed to have sold the property knowing fully well that a
portion thereof was being expropriated. Such an act falls well within Article 21 of the Civil
Code. NPC’s subterfuge certainly besmirched the reputation and professional standing of
Justice Jose C. Campos, Jr. and Professor Maria Clara A. Lopez-Campos, and caused them
physical suffering, mental anguish, moral shock and wounded feelings.

The records show that Justice Campos’ career included, among other[s], being a Professor
of Law at the University of the Philippines; Acting Chairman of the Board of Transportation;
Presiding Judge of the Court of First Instance of Pasay City, and Associate Justice of the
Court of Appeals. Such career reached its apex when he was appointed Associate Justice of
the Supreme Court in 1992. Justice Campos was a member of the Judicial and Bar Council
when NPC filed its Civil Case No. 1174-95. Professor Maria Clara A. Lopez-Campos is a
noted authority in Corporate and Banking Laws and is a Professor Emerita of the University
of the Philippines from 1981 to the present. She had taught more than three decades at the
College of Law. Against such backdrop, it does not take too much imagination to conclude
that the oppressive and wanton manner in which NPC sought to exercise its statutory right of
eminent domain warranted the grant of moral damages.

On the award of nominal damages, such are adjudicated in order that a right of the plaintiff,
which has been violated or invaded by the defendant, may be vindicated or recognized, and
not for the purpose of indemnifying the plaintiff for any loss suffered by him. As previously
discussed, it does not brood well for a government entity such as NPC to disregard the
tenets of private property enshrined in the Constitution. NPC not only intentionally
trespassed on appellees’ property and conducted engineering surveys thereon but also
sought to fool the appellees’ caretaker by claiming that such entry was authorized. Moreover,
NPC even justifies such trespass as falling under its right to expropriate the property. Under
the circumstances, the award of nominal damages is sustained.

That NPC’s highhanded exercise of its right of eminent domain constrained the appellees to
engage the services of counsel is obvious. As testified upon, the appellees engaged their
counsel for an agreed fee of P250,000.00. The trial court substantially reduced this to
P150,000.00. Inasmuch as such services included not only the present action but also those
for Civil Case No. 1174-95 erroneously filed by NPC with the Regional Trial Court of Imus,
Cavite, and the Petition for Certiorari in CA-GR No. 41782, this Court finds such attorney’s
fees to be reasonable and equitable. 21
We agree with the CA.

The award of moral damages in favor of the respondents is proper given the circumstances
obtaining in this case. As found by the CA:

NPC made it appear that it negotiated with the appellees when no actual negotiation took
place. This allegation seriously affected the on-going sale of the property to Solar
Resources, Inc. as appellees seemed to have sold the property knowing fully well that a
portion thereof was being expropriated. Such an act falls well within Article 21 of the Civil
Code. NPC’s subterfuge certainly besmirched the reputation and professionally standing of
Justice Jose C. Campos, Jr. and Professor Maria Clara A. Lopez-Campos, and caused them
physical suffering, mental anguish, moral shock and wounded feelings.

The records show that Justice Campos’ career included, among other[s], being a Professor
of Law at the University of the Philippines; Acting Chairman of the Board of Transportation;
Presiding Judge of the Court of First Instance of Pasay City, and Associate Justice of the
Court of Appeals. Such career reached its apex when he was appointed Associate Justice of
the Supreme Court in 1992. Justice Campos was a member of the Judicial and Bar Council
when NPC filed its Civil Case No. 1174-95. Professor Maria Clara A. Lopez-Campos is a
noted authority in Corporate and Banking Laws and is a Professor Emerita of the University
of the Philippines from 1981 to the present. She had taught more than three decades at the
College of Law. Against such backdrop, it does not take too much imagination to conclude
that the oppressive and wanton manner in which NPC sought to exercise its statutory right of
eminent domain warranted the grant of moral damages. 22

Further, nominal damages are adjudicated in order that a right of the plaintiff, which has been
violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him. 23 Similarly, the court may award nominal
damages in every case where any property right has been invaded. 24 The petitioner, in blatant
disregard of the respondents’ proprietary right, trespassed the subject property and conducted
engineering surveys thereon. It even attempted to deceive the respondents’ caretaker by claiming
that its agents were authorized by the respondents to enter the property when in fact, the
respondents never gave such authority. Under the circumstances, the award of nominal damages is
likewise warranted.

Finally, the award of attorney’s fees as part of damages is deemed just and equitable considering
that by the petitioner’s unjustified acts, the respondents were obviously compelled to litigate and
incur expenses to protect their interests over the subject property. 25

WHEREFORE, the petition is hereby DENIED for lack of merit. The assailed Decision dated June
16, 2000 of the Court of Appeals in CA-G.R. CV No. 54265 is AFFIRMED in toto.

SO ORDERED.

G.R. No. 124699               July 31, 2003

BOGO-MEDELLIN MILLING CO., INC., Petitioner,

vs.
COURT OF APPEALS AND HEIRS OF MAGDALENO VALDEZ SR., Respondents.
 DECISION

CORONA, J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to annul and set aside the
decision dated November 17, 1995 of the Court of Appeals, Tenth Division, which reversed the
1 

decision dated November 27, 1991 of the Regional Trial Court of Cebu City, Branch IX, which ruled
2 

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. He took possession of the property and declared it for tax purposes in
3 

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 petitioner’s 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. Respondent
7 

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 ― to evidence the sale of the land to
9 

Magdaleno Valdez, Sr.; several original real estate tax receipts including Real Property Tax Receipt
10 

No. 3935 dated 1922 in the name of Graciano de los Reyes, husband of Feliciana Santillan, and
11 
Real Property Tax Receipt No. 09491 dated 1963 in the name of Magdaleno Valdez, Sr. Magdaleno
12 

Valdez, Jr. also testified for the plaintiffs during the trial.

On the other hand, Bomedco’s 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 Bomedco’s open and
continuous possession of the property for more than 50 years.

Bomedco submitted in evidence a Deed of Sale dated March 18, 1929; seven real estate tax
13 

receipts for the property covering the period from 1930 to 1985; a 1929 Survey Plan of private land
14 

for Bogo-Medellin Milling Company; a Survey Notification Card; Lot Data Computation for Lot No.
15  16 

954; a Cadastral Map for Medellin Cadastre as well as the testimonies of Vicente Basmayor,
17  18 

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 rejected Bomedco's defense of ownership
19 

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 defendant’s railway tracks is traversing [sic] (TSN of February 5, 1991, pp. 7-8). As to the
continuity of defendant’s 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 defendant’s UNINTERRUPTED possession of the strip
of land for more than fifity (50) years, the Supreme Court’s 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 easement’s
possession by the dominant estate was never continuous. In the instant case however, there is clear
continuity of defendant’s 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 Bomedco’s 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 Bomedco’s 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 Bomedco’s 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 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, Bomedco’s 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:

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REVERSED

AND SET ASIDE THE TRIAL COURT’S DECISION DISMISSING PRIVATE
RESPONDENT’S 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 (₱10,000.00) PESOS AS
REASONABLE ATTORNEY’S 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 prescription under Article 620 of the Civil
Code.

Extraordinary Acquisitive Prescription

Under Art. 1137 of the Civil Code

Petitioner’s 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. Unless coupled with the element of
21 

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. Instead of indicating ownership of the lot,
23 

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 person’s actual and adverse possession of the land, tax
declarations constitute strong evidence of ownership of the land occupied by him, this legal precept
25 

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 1950’s when the grant
was alleged by respondent heirs to have expired. It stresses that, counting from the late 1950’s
(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
petitioner’s 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. There should be a hostile use of such a nature
27 

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), or was by mere license or tolerance of the owners
28 

(respondent heirs). It is a fundamental principle of law in this jurisdiction that acts of possessory
29 

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 petitioner’s 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 complainant’s rights after he had
knowledge of defendant’s 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 petitioner’s 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 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.

Petitioner’s reliance on Caro vs. Court of Appeals  and Vda. de Alberto vs. Court of Appeals  is
35  36 

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 one’s 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. It is the better
37 

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; and it is
38 

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 else’s 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. In Louisiana, it
41 

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 petitioner’s 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. 1âwphi1

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 attorney’s fees in the amount of ₱10,000
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 ₱10,000.

SO ORDERED.
G.R. No. 157285             February 16, 2007

WOODRIDGE SCHOOL, INC., and MIGUELA JIMENEZ-JAVIER, Petitioners,

vs.
ARB CONSTRUCTION CO., INC., Respondent.

DECISION

CORONA, J.:

Petitioners Woodridge School, Inc. (Woodridge) and Miguela Jimenez-Javier come to us assailing
the decision1 dated September 30, 2002 and resolution 2 dated February 14, 2003 of the Court of
Appeals in CA-G.R. CV No. 515333 which, in turn, modified the ruling of the Regional Trial Court
(RTC) of Imus, Cavite awarding ₱500,000 to respondent ARB Construction Co., Inc. (ARB) as
reasonable indemnity for the use of ARB's road lot. 3

Woodridge is the usufructuary of a parcel of land covered by Transfer Certificate of Title (TCT) No.
T-363902 in the name of spouses Ernesto T. Matugas and Filomena U. Matugas. Its co-petitioner,
Miguela Jimenez-Javier, is the registered owner of the adjacent lot under TCT No. T-330688.

On the other hand, ARB is the owner and developer of Soldiers Hills Subdivision in Bacoor, Cavite,
which is composed of four phases. Phase I of the subdivision was already accessible from the
Marcos Alvarez Avenue. To provide the same accessibility to the residents of Phase II of the
subdivision, ARB constructed the disputed road to link the two phases.

As found by the appellate court, petitioners' properties sit right in the middle of several estates:
Phase I of Soldiers Hills Subdivision in the north, a creek in the east and Green Valley Subdivision
the farther east, a road within Soldiers Hills Subdivision IV which leads to the Marcos Alvarez
Avenue in the west and Phase III of Soldiers Hills Subdivision in the south.

Initially, petitioners offered to pay ARB ₱50,000 as indemnity for the use of the road. Adamant, ARB
refused the offer and fenced the perimeter of the road fronting the properties of petitioners. By doing
so, ARB effectively cut off petitioners' access to and from the public highway.

After failing to settle the matter amicably, petitioners jointly filed a complaint 4 in the RTC of Imus,
Cavite to enjoin ARB from depriving them of the use of the disputed subdivision road and to seek a
compulsory right of way after payment of proper indemnity. On November 24, 1995, the trial court
rendered its decision in favor of petitioners:

The reasons why this case is not one for a right of way as an easement are not difficult to discern.

The questioned road is part and parcel of the road network of Soldiers Hills IV, Phase II. This road
was constructed pursuant to the approved subdivision plan of Soldiers Hills IV, Phase II. As such,
the road has already been withdrawn from the commerce of men as the ownership of which was
automatically vested in the government without need of any compensation, although it is still
registered in the name of the [ARB], the moment the subdivision plan was approved. While it is not
yet donated to the government [,] [it] is of no moment for donating this road to the government is a
mere formality.

Differently stated, the government automatically becomes the owner of the subdivisions' roads the
moment the subdivision plan is approved. From that time on, the roads are withdrawn from the
commerce of men even [if] the titles are still registered in the name of the subdivision owners and
the roads are not yet donated to the government. Thus, the subdivision owner can no longer sell or
alienate the roads for they are already owned by the government; thus, even if [petitioners] want to
buy this road, and the [ARB] wants to sell the same, this transaction cannot materialize for the
above-stated reasons. Accordingly, [ARB] cannot prevent/prohibit plaintiffs from using the road as
the same belongs to the government.

xxx xxx xxx

WHEREFORE, … [ARB] is ordered to cease and desist from preventing [petitioners] in using the
subject road or any other road in the subdivision.

xxx xxx xxx

SO ORDERED. 5 (citations omitted)

ARB elevated the case to the Court of Appeals.6 Finding merit in the appeal, the appellate court
reversed the decision of the lower court. It explained that the 1991 case of White Plains
Subdivision[7] did not apply to the present case which was decided under a different factual milieu:

… In the assailed Decision, the Court below relied on the ruling of the Supreme Court in White
Plains Association, Inc. vs. Legaspi (193 SCRA 765). The ruling is not applicable. In the White
Plains case, the disputed area was specifically set aside by the Quezon City Government, with the
concurrence of the owner and developer of the White Plains Subdivision in Quezon City, for the
purpose of constructing a major thoroughfare open to the general public. The case was filed by the
association of homeowners of White Plains in Quezon City … when the owner-developer sought to
convert the disputed lot to residential lots. The Supreme Court initially held that the disputed lot was
not longer within the commerce of men, it having been segregated for a particular purpose, that of
being used as "part of a mandatory open space reserved for public use to be improved into the
widened Katipunan Road". It was within this context that the Supreme Court held that "ownership
was automatically vested in the Quezon City government and/or the Republic of the Philippines,
without need of paying any compensation".8

The appellate court went on to rule that a compulsory right of way exists in favor of petitioners as
"[t]here is no other existing adequate outlet to and from [petitioners'] properties to the Marcos
Alvarez Avenue other than the subject existing road lot designated as Lot No. 5827-F-1 belonging to
[ARB]."9 In addition, it awarded ₱500,000 to ARB as reasonable indemnity for the use of the road lot.

Acting on petitioners' motion for reconsideration, the appellate court justified the monetary award in
this manner:

In [o]ur Decision, [w]e awarded the amount of ₱500,000.00 merely as reasonable indemnity for the
use of the road lot, not the alienation thereof. The amount was based on equitable considerations
foremost of which is that, while there is no alienation to speak of, the easement is of long-standing,
that is, until a shorter and adequate outlet is established. Moreover, [ARB] should be compensated
for the wear and tear that [petitioners'] use of the road would contribute to; it is [ARB] which is solely
to be credited for the completion of the road lot. Going by the conservative valuation of the
Municipality of Bacoor, Cavite presented by [petitioners], the 4,760 sq. m. road lot would cost
₱1,904,000 but as stated what is compensated is the use of the road lot not its alienation.
[Petitioners'] original offer cannot be considered a reasonable indemnity, there being a knotty legal
question involved and it is not [ARB's] fault that the parties had to resort to the courts for a
resolution.10

Unsatisfied with the ruling of the appellate court, petitioners filed this petition for review on certiorari
insisting that ARB is not entitled to be paid any indemnity.

Petitioners argue that the contested road lot is a property of public dominion pursuant to Article
42011 of the Civil Code. Specifically, petitioners point out that the disputed road lot falls under the
category "others of similar character" which is the last clause of Article 420 (1). 12 Hence, it is a
property of public dominion which can be used by the general public without need for compensation.
Consequently, it is wrong for ARB to exclude petitioners from using the road lot or to make them pay
for the use of the same.

We disagree.

In the case of Abellana, Sr. v. Court of Appeals,13 the Court held that "the road lots in a private
subdivision are private property, hence, the local government should first acquire them by donation,
purchase, or expropriation, if they are to be utilized as a public road." 14 Otherwise, they remain to be
private properties of the owner-developer.

Contrary to the position of petitioners, the use of the subdivision roads by the general public does
not strip it of its private character. The road is not converted into public property by mere tolerance of
the subdivision owner of the public's passage through it. To repeat, "the local government should
first acquire them by donation, purchase, or expropriation, if they are to be utilized as a public
road."15

Likewise, we hold the trial court in error when it ruled that the subject road is public property
pursuant to Section 2 of Presidential Decree No. 1216. 16 The pertinent portion of the provision reads:

Section 2. xxx xxx xxx

Upon their completion as certified to by the Authority, the roads, alleys, sidewalks and playgrounds
shall be donated by the owner or developer to the city or municipality and it shall be mandatory for
the local governments to accept them provided, however, that the parks and playgrounds may be
donated to the Homeowners Association of the project with the consent of the city or municipality
concerned…

The law is clear. The transfer of ownership from the subdivision owner-developer to the local
government is not automatic but requires a positive act from the owner-developer before the city or
municipality can acquire dominion over the subdivision roads. Therefore, until and unless the roads
are donated,17 ownership remains with the owner-developer. 18

Since no donation has been made in favor of any local government and the title to the road lot is still
registered in the name of ARB, the disputed property remains private.

This is not to say that ARB may readily exclude petitioners from passing through the property. As
correctly pointed out by the Court of Appeals, the circumstances clearly make out a case of legal
easement of right of way. It is an easement which has been imposed by law and not by the parties
and it has "for (its) object either public use or the interest of private persons." 19
To be entitled to a legal easement of right of way, the following requisites must concur: (1) the
dominant estate is surrounded by other immovables and has no adequate outlet to a public highway;
(2) payment of proper indemnity; (3) the isolation was not due to acts of the proprietor of the
dominant estate and (4) the right of way claimed is at the point least prejudicial to the servient
estate.20

The appellate and trial courts found that the properties of petitioners are enclosed by other estates
without any adequate access to a public highway except the subject road lot which leads to Marcos
Alvarez Avenue.21 Although it was shown that the shortest distance from the properties to the
highway is toward the east across a creek, this alternative route does not provide an adequate outlet
for the students of the proposed school. This route becomes marshy as the creek overflows during
the rainy season and will endanger the students attending the school.

All told, the only requisite left unsatisfied is the payment of proper indemnity.

Petitioners assert that their initial offer of ₱50,000 should be sufficient compensation for the right of
way. Further, they should not be held accountable for the increase in the value of the property since
the delay was attributable to the stubborn refusal of ARB to accept their offer. 22

Again, we are not persuaded.

In the case of a legal easement, Article 649 of the Civil Code prescribes the parameters by which the
proper indemnity may be fixed. Since the intention of petitioners is to establish a permanent
passage, the second paragraph of Article 649 of the Civil Code particularly applies:

Art 649. xxx xxx xxx

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. (Emphasis supplied)

On that basis, we further hold that the appellate court erred in arbitrarily awarding indemnity for the
use of the road lot.

The Civil Code categorically provides for the measure by which the proper indemnity may be
computed: value of the land occupied plus the amount of the damage caused to the servient estate.
Settled is the rule in statutory construction that "when the law is clear, the function of the courts is
simple application."23 Thus, to award the indemnity using factors different from that given by the law
is a complete disregard of these clear statutory provisions and is evidently arbitrary. This the Court
cannot countenance. The Civil Code has clearly laid down the parameters and we cannot depart
from them. Verba legis non est recedendum.

Having settled the legal issues, we order the remand of this case to the trial court for reception of
evidence and determination of the limits of the property to be covered by the easement, the proper
indemnity to be paid and the respective contributions of petitioners.

For the guidance of the trial court, the fact that the disputed road lot is used by the general public
may be taken in consideration to mitigate the amount of damage that the servient estate is entitled
to, in the sense that the wear and tear of the subject road is not entirely attributable to petitioners.
WHEREFORE, this petition is partially GRANTED. The September 30, 2002 Decision and February
14, 2003 resolution of the Court of Appeals in CA-G.R. CV No. 515333 are ANNULLED and SET
ASIDE in so far as petitioners are ordered to pay an indemnity of ₱500,000. The case is hereby
remanded to the trial court for reception of evidence and determination of the limits of the property to
be covered by the easement, the proper indemnity to be paid and the respective contributions of
petitioners.

SO ORDERED.

G.R. No. 133140           August 10, 1999

JOSE MA. T. GARCIA, petitioner,

vs.
COURT OF APPEALS, SPS. LUISITO & MA. LUISA MAGPAYO AND PHILIPPINE BANK OF
COMMUNICATIONS, respondents.

PUNO, J.:

This is a petition for review under Rule 45 of the Rules of Court to set aside the decision rendered by
the Court of Appeals in CA-G.R. No. 44707 entitled "Jose Ma. T. Garcia, Plaintiff-Appellee versus
Spouses Luisito and Ma. Luisa Magpayo and Sheriff of Makati, Defendants, Philippine Bank of
Communications, Defendant-Appellant". 1

The facts are as succinctly summarized by the appellate court, viz.:

Atty. Pedro V. Garcia, in whose name TCT No. S-31269 covering a parcel of land identified
as Lot 17 situated at Bel Air II Village, Makati, was registered, sold with the consent of his
wife Remedios T. Garcia, the same to their daughter Ma. Luisa Magpayo and her husband
Luisito Magpayo (the Magpayos).

On March 5, 1981, the Magpayos mortgaged the land to the Philippine Bank of
Communications (PBCom) to secure a loan, Five Hundred Sixty Four Thousand
(P564,000.00) Pesos according to them, One Million Two Hundred Thousand
(P1,200,000.00) Pesos according to PBCom. 1âwphi1.nêt

On March 9, 1981, Atty. Garcia's Title was cancelled and in its stead Transfer Certificate of
Title No. S-108412/545 was issued in the name of the Magpayos.

The Deed of Real Estate Mortgage was registered at the Makati Register of Deeds and
annotated on the Magpayos title.

The Magpayos failed to pay their loan upon its maturity, hence, the mortgage was
extrajudicially foreclosed and at the public auction sale, PBCom which was the highest
bidder bought the land.

The redemption period of the foreclosed mortgage expired without the Magpayos redeeming
the same, hence, title over the land was consolidated in favor of PBCom which cancelled the
Magpayo's title and Transfer Certificate of Title No. 138233 was issued in its name.
 On October 4, 1985, the Magpayos filed at the RTC of Makati a complaint seeking the
nullification of the extrajudicial foreclosure of mortgage, public auction sale, and PBCom's
title docketed as Civil Case No. 11891. This complaint was dismissed for failure to
prosecute.

On October 15, 1985, PBCom filed at the Regional Trial Court (RTC) of Makati a petition for
the issuance of a writ of possession over the land, docketed as LRC Case No. M-731, which
Branch 148 thereof granted.

Upon service of the writ of possession, Mrs. Magpayo's brother, Jose Ma. T. Garcia (Garcia),
who was in possession of the land, refused to honor it and filed a motion for Intervention in
the above-said PBCom petition, which motion was denied.

Garcia thereupon filed against PBCom, the Magpayos, and the RTC Sheriff the instant suit
for recovery of realty and damages wherein he alleged, inter alia, that he inherited the land
as one of the heirs of his mother Remedios T. Garcia, and that PBCom acquired no right
thereover.

In its answer, PBCom averred, inter alia, that Garcia's claim over the land is belied by the
fact that it is not among the properties owned by his mother listed in the Inventory of Real
Estate filed at the then CFI of Pasay City, Branch 27, in SP Proc. No. 2917-P, "In the Matter
of the Intestate Estate of Remedios T. Garcia Petition for Letters of Administration, Pedro V.
Garcia Petitioner-Administrator.

The Magpayos, on the other hand, asserted that title over the land was transferred to them
by Mrs. Magpayo's parents to enable them (Magpayos) to borrow from PBCom.

Garcia filed a Motion for Summary Judgment praying that judgment be rendered in his favor
to which PBCom counter-motioned that judgment should be rendered in its favor.

The court a quo denied the motion for summary judgment on the ground that PBCom raised
in its answer both factual and legal issues which could only be ventilated in a full-blown trial.

The court a quo, however, later issued a summary judgment. 2

In its summary judgment, the lower court held that the mortgage executed by the Magpayo spouses
in favor of PBCom was void. It found that:

. . . [A]t the time that the defendants Magpayo spouses executed the mortgage in favor of the
defendant PBCom on March 5, 1981, the said spouses were not yet the owners of the
property. This finding is evident from the other undisputed fact that a new Torrens title was
issued to the defendants Magpayo spouses only on March 9, 1981 . . . . The Magpayo
spouses could not have acquired the said property merely by the execution of the Deed of
Sale because the property was in the possession of the plaintiff. The vendor, Pedro V.
Garcia, was not in possession and hence could not deliver the property merely by the
execution of the document (MANALILI V. CESAR, 39 PHIL. 134). The conclusion is therefore
inescapable that the said mortgage is null and void for lack of one of the essential elements
of a mortgage as required by Art. 2085 of our Civil Code . . . .3

Thus, it invalidated the foreclosure sale and nullified TCT No. 138233 issued to PBCom.
Dissatisfied, PBCom appealed. In reversing the trial court, the Court of Appeals held:
 (P)laintiff-appellee's assertion that ownership over the disputed property was not transmitted
to his sister and her husband-Magpayo spouses at the time of the execution of the Deed of
Sale as he was still in actual and adverse possession thereof does not lie.

For in his complaint, plaintiff-appellee alleged that he entered into possession of the disputed
property only upon the demise of his mother, from whom he alleges to have inherited it but
who was not the registered owner of the property, that is, on October 31, 1980 (Certificate of
Death, p. 17, Records), by which admission he is bound. Since the execution of the deed of
sale by Atty. Pedro V. Garcia in favor of the Magpayos took place earlier or on August 1,
1980, then contrary to his claim, plaintiff-appellee was not in possession of the property at
the time of the execution of said public instrument.

Furthermore, it appearing that the vendor Atty. Garcia had control of the property which was
registered in his name and that the deed of sale was likewise registered, then the sale was
consummated and the Magpayos were free to exercise the attributes of ownership including
the right to mortgage the land.

When the land is registered in the vendor's name, and the public instrument of sale is also
registered, the sale may be considered consummated and the buyer may exercise the
actions of an owner (Tolentino, Commentaries and Jurisprudence on the Civil Code of the
Philippines, 1992 Ed., p. 55).

That the Magpayos' title, TCT No. S-108412, was issued four (4) days following the
execution of the deed of real estate mortgage is of no moment, for registration under the
Torrens system does not vest ownership but is intended merely to confirm and register the
title which one may already have on the land (Municipality of Victorias v. Court of Appeals,
149 SCRA 32, 44-45 [1987]).

Petitioner Garcia moved for a reconsideration of above decision which was denied. He now comes
before us raising the following errors committed by the Court Appeals:

The respondent Court of Appeals has departed from the accepted and usual course of proceedings
when it decided the appeal subject of this case based on issues which were raised neither in the trial
court nor in the appellant's brief.

II

The Court of Appeals decided the appeal in a manner not in accord with applicable jurisprudence
when it disregarded the admissions of the private respondents and, despite ruling that Summary
Judgment was proper, made its own findings of facts which were contrary to the said admissions.

III

The Decision of the respondent Court of Appeals was not in accord with established jurisprudence
and even contradicts itself, as far as the issue of the propriety of the Summary Judgment is
concerned.

The petition has no merit.

Anent the first assignment of error, petitioner alleged that the Court of Appeals resolved the issues
"ownership" and "possession" though they were not raised by PBCom in its appellant's brief. The
allegation is belied by page 17 of PBCom's appellate brief, viz.:

Due to the wrong cited case, the trial court opined erroneously that "Magpayo Spouses could
not have acquired the property merely by the execution of the deed of sale because the
property was in the possession of the plaintiff" (Order, p. 10).

Again, the trial court could not distinguish ownership from possession. Ownership and
possession are two entirely different legal concepts.

Plaintiff-appellee's possession as found by the trial court, started only "at the time of the filing
of the complaint in this present case up to the present." (page 2, Summary Judgment).

Assuming that to be true, plaintiff-appellee's possession which started only in 1986 could not
ripen into ownership. He has no valid title thereto. His possession in fact was that of an
intruder, one done in bad faith (to defeat PBCom's Writ of Possession). His possession is
certainly not in the concept of an owner. This is so because as early as 1981, title thereto
was registered in the name of the Magpayo Spouses which title was subsequently cancelled
when the property was purchased by PBCom in a public auction sale resulting in the
issuance of title in favor of the latter in 1985.

Anent the second-assignment of error, petitioner contends that the following facts were admitted by
the parties in the trial court:

1. The petitioner is a compulsory heir of the late spouses Atty. Pedro V. Garcia and
Remedios Tablan Garcia;

2. The property subject of this dispute was previously the conjugal property of the said
spouses;

3. The petitioner and his family have been and are continuously to the present in actual
physical possession of the property. At the time of the alleged sale to the Magpayo spouses,
petitioner was in possession of the property;

4. When his mother Remedios Tablan (sic) Garcia died, sometime in October, 1980, he
became, by operation of law, a co-owner of the property;

5. Atty. Pedro V. Garcia, at the time of the execution of the instrument in favor of the
Magpayo spouses was not in possession of the subject property. 4

We reject the contention of petitioner for a perusal of the records shows that these alleged admitted
facts are his own paraphrased portions of the findings of fact listed by the trial court in the summary
judgment.5 Indeed petitioner did not cite any page number of the records or refer to any documentary
Exhibit to prove how and who admitted the said facts.

Petitioner's third assignment of error that he alone as plaintiff in the trial court is entitled to a
summary judgment merits scant attention. A summary judgment is one granted by the court, upon
motion by either party, for an expeditious settlement of the case, there appearing from the pleadings,
depositions, admissions, and affidavits that no important questions or issues of fact are involved
(except the determination of the amount of damages) and that therefore the moving party is entitled
to a judgment as a matter of law.6 Under Rule 34, either party may move for a summary judgment —
the claimant by virtue of Section 1 and the defending party by virtue of Section 2, viz.:

Sec. 1. Summary judgment for claimant. — A party seeking to recover upon a claim, counter-
claim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading in
answer thereto has been served, move with supporting affidavits for a summary judgment in
his favor upon all or any part thereof.

Sec. 2. Summary judgment for defending party. — A party against whom a claim,
counterclaim, or cross-claim is asserted or a declaratory relief is sought may, at any time,
move with supporting affidavits for a summary judgment in his favor as to all or any part
thereof.

It is true that petitioner made the initial move for summary judgment. Nonetheless, PBCom likewise
moved for a summary judgment with supporting affidavit and documentary exhibits, to wit:

COUNTER-MOTION FOR SUMMARY JUDGMENT

PBCom Is Entitled To A Summary Judgment

The procedure for summary judgment may be availed of also by the defending parties who
may be the object of unfounded claims as clearly shown in Sections 1 and 2 of Rule 34.

xxx     xxx     xxx

WHEREFORE, it is respectfully prayed of this Honorable Court to render summary judgment

in PBCom's favor by DISMISSING plaintiff's Complaint as well as Sps. Magpayo's Cross-
Claim for being sham and frivolous.7

Needless to state, there was no error on the part of the appellate court in resorting to summary
judgment as prayed for by both parties.

We stress again that possession and ownership are distinct legal concepts. Ownership exists when
a thing pertaining to one person is completely subjected to his will in a manner not prohibited by law
and consistent with the rights of others.8 Ownership confers certain rights to the owner, one of which
is the right to dispose of the thing by way of sale. 9 Atty. Pedro Garcia and his wife Remedios
exercised their right to dispose of what they owned when they sold the subject property to the
Magpayo spouses. On the other hand, possession is defined as the holding of a thing or the
enjoyment of a right.10 Literally, to possess means to actually and physically occupy a thing with or
without right. Possession may be had in one of two ways: possession in the concept of an owner
and possession of a holder. 11 "A possessor in the concept of an owner may be the owner himself or
one who claims to be so."12 On the other hand, "one who possesses as a mere holder acknowledges
in another a superior right which he believes to be ownership, whether his belief be right or
wrong."13 The records show that petitioner occupied the property not in the concept of an owner for
his stay was merely tolerated by his parents. We held in Caniza v. Court of Appeals  14 that an
owner's act of allowing another to occupy his house, rent-free does not create a permanent and
indefeasible right of possession in the latter's favor. Consequently, it is of no moment that petitioner
was in possession of the property at the time of the sale to the Magpayo spouses. It was not a
hindrance to a valid transfer of ownership. On the other hand, petitioner's subsequent claim of
ownership as successor to his mother's share in the conjugal asset is belied by the fact that the
property was not included in the inventory of the estate submitted by his father to the intestate court.
This buttresses the ruling that indeed the property was no longer considered owned by petitioner's
parents. We also uphold the Court of Appeals in holding that the mortgage to PBCom by the
Magpayo spouses is valid notwithstanding that the transfer certificate of title over the property was
issued to them after the mortgage contract was entered into. Registration does not confer
ownership, it is merely evidence of such ownership over a particular property. 15 The deed of sale
operates as a formal or symbolic delivery of the property sold and authorizes the buyer to use the
document as proof of ownership.16 All said, the Magpayo spouses were already the owners when
they mortgaged the property to PBCom.17

IN VIEW WHEREOF, the decision of the Court of Appeals in CA-G.R. No. 44707 is AFFIRMED.
Costs against petitioner. 1âwphi1.nêt

SO ORDERED.

G.R. No. 194488               February 11, 2015

ALICIA B. REYES, Petitioner,
vs.
SPOUSES FRANCISCO S. VALENTIN and ANATALIA RAMOS, Respondents.

DECISION

LEONEN, J.:

This is a Rule 45 Petition  of the Court of Appeals Decision  dated August 12, 2010 and of the Court
1 2

of Appeals Resolution  dated October 28, 2010.

3

On March 28, 2006, petitioner Alicia B. Reyes, through Dolores B. Cinco,  filed a Complaint  before
4 5

the Regional Trial Court of Maloles, Bulacan, for easement of right ofway against respondents,
Spouses Francisco S. Valentin and Anatalia Ramos. 6

In her Complaint before the Regional Trial Court, petitioner alleged that she was the registered
owner of a 450-square-meter parcel of land in Barangay Malibong Bata, Pandi, Bulacan, designated
as Lot No. 3-B-12 and covered by TCT No. T-343642-(M).  The property used to be a portion of Lot
7

No. 3-B  and was surrounded by estates belonging to other persons.  Petitioner also alleged that
8 9

respondents’ 1,500-square-meter property surrounded her property, and that it was the only
adequate outlet from her property to the highway.  A 113-square-meter portion of respondents’
10

property was also the "point least prejudicial to the [respondents]."  The easement sought was the
11

vacant portion near the boundary of respondents’ other lot. 12

Figure 1. Drawing  showing the location of petitioner’s and respondents’ properties in relation to the
13

proposed easement. Petitioner’s property is located on the leftmost part of the drawing.
Respondents’ property and the proposed 113-square-meter easement are located on the drawing’s
right side that contains petitioner’s property. Barangay Malibong Bata Road can be seen on the
rightmost part of the drawing.

Petitioner insisted that her property was not isolated because of her own acts.  When her mother
14

gave the property to her as part of her inheritance, there was no intention for the property to have no
outlet.
15

According to petitioner, her and respondents’ lots were previously owned by her mother.
Respondents’ lot was given to Dominador Ramos (Dominador) who allegedly was respondents’
predecessor-in-interest. Dominador was also her mother’s brother and caretaker of properties. 16

Only 500 square meters were given to Dominador. Part of the 1,500 square meters was intended as
a right of way. Dominador was tasked to prepare the documents. But, instead of limiting the
conveyance to himself to 500 square meters of the property, he conveyed the whole 1,500 square
meters, including that which was supposed to be the access to the barangay road.  Petitioner’s
17

mother only learned about what Dominador did when a meeting was called in 1989 regarding the
implementation of the Comprehensive Agrarian Reform Program.  She did not cause the recovery of
18

her title because at that time, the Register of Deeds of Bulacan was razed by fire, causing the
destruction of the documents covering the subject properties. Dominador was also her brother,
whom she presumed would give her a right of way to the main road. Instead of giving way, however,
he closed the passage, causing petitioner’s property’s isolation.  Despite demands and willingness
19

to pay the amount, respondents refused to accede to petitioner’s claims. 20

In their Answer,  respondents contended that the isolation of petitioner’s property was due to her
21

mother’s own act of subdividing the property among her children without regard to the pendency of
an agrarian case between her and her tenants.  The property chosen by petitioner as easement was
22
also the most burdensome for respondents.  Respondents pointed to an open space that connected
23

petitioner’s property to another public road. 24

Upon agreement by the parties, the Branch Clerk of Court conducted an ocular inspection of the
premises in February 2007, in the presence of the parties. 25

After an Ocular Inspection Report  was submitted on March 2, 2007, the case was considered
26

submitted for decision. 27

On April 11, 2007, the trial court issued its Decision,  dismissing the Complaint for easement of right
28

of way, thus:29

WHEREFORE, finding the prayer for a grant of compulsory easement of right of way on a 113
square meter portion of defendants’ property to be devoid of merit, the same is hereby DENIED.
Consequently, the case is ordered DISMISSED with no pronouncements as to damages and costs. 30

The trial court found that petitioner’s proposed right of way was not the least onerous to the servient
estate of respondents.  It noted that the proposed right of way would passthrough improvements,
31

such as respondents’ garage, garden, and grotto.  The trial court also noted the existence of an
32

irrigation canal that limited access to the public road.  However, the trial court pointed out
33

that"[o]ther than the existing irrigation canal, no permanent improvements/structures can be seen
standing on the subject rice land."  Moreover, the nearby landowner was able to construct a bridge
34

to connect a property to the public road.  Hence, "[t]he way through the irrigation canal would . . .
35

appear to be the shortest and easiest way to reach the barangay road." 36

Petitioner appealed the Regional Trial Court’s Decision. 37

On August 12, 2010, the Court of Appeals denied petitioner’s appeal and affirmed in toto the
Regional Trial Court’s Decision.  It found no reversible error in the trial court’s decision to dismiss
38

petitioner’s complaint.  Petitioner failed to discharge the burden of proving the existence of the
39

requisites for the grant of easement.  The Court of Appeals also found that petitioner’s property had
40

an adequate outlet to the public road. 41

Petitioner’s Motion for Reconsideration dated September 8, 2010 was denied by the Court of
Appeals in a Resolution promulgated on October 28, 2010. 42

Petitioner filed this Petition on December 22, 2010  to assail the Decision and Resolution of the
43

Court of Appeals. 44

We are asked to determine whether petitioner has the compulsory easement of right of way over
respondents’ property. 1âwphi1

Petitioner argued that the Regional Trial Court and the Court of Appeals failed to consider that it was
not her property that was adjacent to the irrigation canal but her sister’s. Her property was
surrounded by other estates belonging to other persons. Hence, she had to pass through other
properties before reaching the irrigation canal. 45

Moreover, even if she traversed the other properties, she would only end up on the bank of the
irrigation canal without means to cross over.  The fact that she had to construct a bridge over the
46

irrigation canal supported her position that there was indeed no adequate outlet from her property to
the public road.  In any case, a bridge will necessarily be an obstruction on the public road.
47 48
Petitioner further argued, citing Quimen v. Court of Appeals,  that "[t]he owner of the dominant
49

estate can demand a right of way through the servient estate provided he indemnifies the owner
thereof for the beneficial use of his property." 50

In their Comment  on the Petition, respondents argued that this case is already barred by prior
51

judgment.  Petitioner’s predecessor-in-interest and her children had already previously filed an
52

action for easement of right of way against respondents.  That case had already been dismissed in
53

favor of respondents.  The reason for the dismissal of the case was the possibility of constructing a
54

bridge over the irrigation canal.  Respondents further argued that the easement must be real and
55

not fictitious.56

The petition has no merit.

The issue of ownership is irrelevant

to the case; filing of a complaint for
easement is a recognition of the
servient property owner’s rights

Petitioner points out that respondents’ property was previously owned by her mother. She alleged
that her uncle who was her mother’s caretaker of property fraudulently caused the titling of the whole
1,500-square-meter property instead of just the 500-square-meter portion under his name. 57

These allegations are relevant only if we are determining the issue of the property’s ownership.
However, this is not an issue in this case. Petitioner does not question the ownership or the
registration of respondents’ title over the property. We are limited to the issue of petitioner’s
easement rights. On that matter, petitioner’s act of filing a Complaint for easement of right of way is
an acknowledgement that the property is owned by respondents. It is tantamount to a waiver of
whatever right or claim of ownership petitioner had over the property.

II

Petitioner failed to satisfy the Civil

Code requirements for the grant of
easement rights

The acts of petitioner’s predecessor-in-interest necessarily affect petitioner’s rights over the property.
One of the requirements for the grant of an easement of right of way is that the isolation of the
property is not due to the acts of the dominant estate’s owners.

As shown in the pleadings submitted to the trial court, petitioner and respondents had conflicting
claims on this issue. Petitioner alleged that it was her uncle, Dominador, who caused the isolation of
her property through his act of appropriating for himself the whole property entrusted to him by her
mother. Moreover, he closed the passage from petitioner’s property to the public road.

On the other hand, respondents alleged that the isolation was due to the acts of petitioner’s
predecessor-in-interest. She allegedly subdivided the property in favor of her children, including
petitioner, without regard to the pending dispute over the property. If the latter is true, petitioner
could not claim any right to compulsory easement even if it was not she who caused the property’s
isolation. Petitioner is bound by her predecessor-in-interest’s act of causing the isolation of her
property.

Assuming, however, that petitioner or her mother did not cause the isolation of petitioner’s property,
petitioner still cannot be granted the easement of right of way over the proposed portion of
respondents’ property. This is because she failed to satisfy the requirements for an easement of
right of way under the Civil Code.

Articles 649 and 650 of the Civil Code provide the requisites of an easement of right of way: ART.
649. The owner, or any person who by virtue of a real right may cultivate or use any immovable,
which is surrounded by other immovables pertaining to other persons and without adequate outlet to
a public highway, is entitled to demand a right of way through the neighboring estates, after payment
of the proper indemnity.

Should this easement be established in such a manner that its use may be continuous for all the
needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the
value of the land occupied and the amount of the damage caused to the servient estate.

In case the right of way is limited to the necessary passage for the cultivation of the estate
surrounded by others and for the gathering of its crops through the servient estate without a
permanent way, the indemnity shall consist in the payment of the damage caused by such
encumbrance.

This easement is not compulsory if the isolation of the immovable is due to the proprietor’s own acts.

ART. 650. The easement of right of way shall be established at the point least prejudicial to the
servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate
to a public highway may be the shortest.

Based on these provisions, the following requisites need to be established before a person becomes
entitled to demand the compulsory easement of right of way: 58

1. An immovable is surrounded by other immovables belonging to other persons, and is

without adequate outlet to a public highway;

2. Payment of proper indemnity by the owner of the surrounded immovable;

3. The isolation of the immovable is not due to its owner’s acts; and

4. The proposed easement of right of way is established at the point least prejudicial to the
servient estate, and insofar as consistent with this rule, where the distance of the dominant
estate to a public highway may be the shortest.

An easement of right of way is a real right. When an easement of right of way is granted to another
person, the rights of the property’s owner are limited.  An owner may not exercise some of his or her
59

property rights for the benefit of the person who was granted the easement of right of way. Hence,
the burden of proof to show the existence of the above conditions is imposed on the person who
seeks the easement of right of way. 60
We agree with the Regional Trial Court’s and the Court of Appeals’ findings that petitioner failed to
establish that there was no adequate outlet to the public highway and that the proposed easement
was the least prejudicial to respondents’ estate.

There is an adequate exit to a public highway.

This court explained in Dichoso, Jr. v. Marcos  that the convenience of the dominant estate’s owner
61

is not the basis for granting an easement of right of way, especially if the owner’s needs may be
satisfied without imposing the easement.  Thus:
62

Mere convenience for the dominant estate is not what is required by law as the basis of setting up a
compulsory easement. Even in the face of necessity, if it can be satisfied without imposing the
easement, the same should not be imposed.

....

Also in Floro v. Llenado, we refused to impose a right of way over petitioner’s property although
private respondent’s alternative route was admittedly inconvenient because he had to traverse
several ricelands and rice paddies belonging to different persons, not to mention that said passage
is impassable during the rainy season.

And in Ramos, Sr. v. Gatchalian Realty, Inc., this Court refused to grant the easement prayed for
even if petitioner had to pass through lots belonging to other owners, as temporary ingress and
egress, which lots were grassy, cogonal, and greatly inconvenient due to flood and mud because
such grant would run counter to the prevailing jurisprudence that mere convenience for the dominant
estate does not suffice to serve as basis for the easement.  (Citations omitted) Access to the public
63

highway can be satisfied without imposing an easement on respondents’ property.

The Ocular Inspection Report reads, in part:

Upon reaching the said place, pictures were taken in the presence of both parties and their
respective counsel. The undersigned observed that fronting the lot where the house of the defendant
is erected, is Brgy. Malibong Bata public road. The property of the plaintiff is located at the back of
defendant’s lot. Plaintiff, through her counsel, requested that the side portion of defendants’ lot
where the latter’s garage and a grotto are erected or a portion of defendants’ newly acquired
adjacent lot be the right of way. This was objected to by Atty. Batalla arguing that to grant the same
is more prejudicial to the defendants considering that the improvements thereon will be affected and
that there is another existing public road which is nearer to the plaintiff’s property. Atty. Sali admitted
that there is another existing public road but the right of way cannot be done as there is more or less
four-meter wide irrigation before reaching the said public road.

In order to confirm if there is indeed another existing public road which is nearer to plaintiff’s
property, the undersigned together with the above-mentioned court personnel and the parties and
their respective counsel, proceeded to the said place. True enough, there is a public road also
named Brgy. Malibong Bata public road, fronting plaintiff’s property. However, there is more or less
four-meter wide irrigation before reaching the said public road. It was also confirmed that the two
properties of the plaintiff are between the public road which is adjacent to the irrigation. Atty. Sali
manifested that they already requested before the officers of the National Irrigation Administration
(NIA) for the grant of the right of way but the same was disapproved. Atty. Batalla pointed out that
there are already some concrete bridges nearby the properties of the plaintiff. 64
Based on the Ocular Inspection Report, petitioner’s property had another outlet to the highway. In
between her property and the highway or road, however, is an irrigation canal, which can be
traversed by constructing a bridge, similar to what was done by the owners of the nearby properties.

There is, therefore, no need to utilize respondents’ property to serve petitioner’s needs. Another
adequate exit exists. Petitioner can use this outlet to access the public roads.

The outlet referred to in the Ocular Inspection Report may be longer and more inconvenient to
petitioner because she will have to traverse other properties and construct a bridge over the
irrigation canal before she can reach the road. However, these reasons will not justify the imposition
of an easement on respondents’ property because her convenience is not the gauge in determining
whether to impose an easement of right of way over another’s property.  Petitioner also failed to
65

satisfy the requirement of "least prejudicial to the servient estate."

Article 650 of the Civil Code provides that in determining the existence of an easement of right of
way, the requirement of "least prejudic[e] to the servient estate" trumps "distance [between] the
dominant estate [and the] public highway." "Distance" is considered only insofar as it is consistent to
the requirement of "least prejudice."

This court had already affirmed the preferred status of the requirement of "least prejudice" over
distance of the dominant estate to the public highway.  Thus, in Quimen, this court granted the
66

longer right of way over therein respondent’s property because the shorter route required that a
structure of strong materials needed to be demolished.  This court said:
67

[T]he court is not bound to establish what is the shortest distance; a longer way may be adopted to
avoid injury to the servient estate, such as when there are constructions or walls which can be
avoided by a round about way, or to secure the interest of the dominant owner, such as when the
shortest distance would place the way on a dangerous decline.

....

The criterion of least prejudice to the servient estate must prevail over the criterion of shortest
distance although this is a matter of judicial appreciation. While shortest distance may ordinarily
imply least prejudice, it is not always so as when there are permanent structures obstructing the
shortest distance; while on the other hand, the longest distance may be free of obstructions and the
easiest or most convenient to pass through. In other words, where the easement may be established
on any of several tenements surrounding the dominant estate, the one where the way is shortest
and will cause the least damage should be chosen. However, as elsewhere stated, if these two (2)
circumstances do not concur in a single tenement, the way which will cause the least damage
should be used, even if it will not be the shortest.  (Citation omitted) Petitioner would have
68

permanent structures — such as the garage, garden, and grotto already installed on respondent’s
property — destroyed to accommodate her preferred location for the right of way.

The cost of having to destroy these structures, coupled with the fact that there is an available outlet
that can be utilized for the right of way, negates a claim that respondents’ property is the point least
prejudicial to the servient estate.

An easement is a limitation on the owner’s right to use his or her property for the benefit of another.
By imposing an easement on a property, its owner will have to forego using it for whatever purpose
he or she deems most beneficial. Least prejudice, therefore, is about the suffering of the servient
estate. Its value is not determined solely by the price of the property, but also by the value of the
owner’s foregone opportunity for use, resulting from the limitations imposed by the easement. 69
Imposing an easement on the part of respondents’ property for petitioner’s benefit would cost
respondents not only the value of the property but also the value of respondents’ opportunity to use
the property as a garage or a garden with a grotto.

Petitioner may use another outlet, which may provide longer access from her property to the public
highway, but is free from obstructions. The four-meter wide irrigation canal may be traversed upon
construction of a bridge. As noted by the trial court:

A neighboring land owner was able to construct a short concrete bridge wide enough even for
vehicles to pass through the irrigation canal from his property to the barangay road. The Court sees
no reason why plaintiff could not do the same and why it would not be allowed if carried in
accordance with the requirements set by NIA. 70

Contrary to petitioner’s assertion, a reading of the August 17, 2005 National Irrigation Administration
Letter-Response  to petitioner’s query regarding the possibility of constructing a concrete bridge
71

over the irrigation canal shows that petitioner was not really disallowed from constructing a bridge.
She was merely given certain conditions, thus:

Wherefore, this office could not negate such decision.  However, request for grant of right of way for
72

the construction of bridge over an irrigation canal could be granted subject to the following
conditions[:] (1) that the landowner will shoulder the cost of construction subject to the design and
specifications approved by this office[;] (2) construction schedule must be informed for inspection[;]
(3) subject construction will not impede the free flow of irrigation water[;] (4) distance between
bridges will not hamper our mechanical equipment to move freely within the area during clearing
schedule; (5) active participation of the landowner in the clearing and maintenance of the canal for
continuous water flow; (6) any violation of the above conditions will mean revocation of the permit
and any damage to the canal structures will mean restoration of the landowner at his own cost. 73

It is true that an easement of right of way may be granted even if the construction of the bridge was
allowed. However, in determining if there is an adequate outlet or if the choice of easement location
is least prejudicial to the servient estate, this court cannot disregard the possibility of constructing a
bridge over the four-meter-wide canal. This court must consider all the circumstances of the case in
determining whether petitioner was able to show the existence of all the conditions for the easement
of right of way.

The Regional Trial Court and the Court of Appeals also considered the aspect of necessity for an
easement in determining petitioner’s rights.

The trial court found that there is still no necessity for an easement of right of way because
petitioner’s property is among the lots that are presently being tenanted by Dominador and Filomena
Ramos’ children.  Petitioner is yet to use her property. The Complaint for easement was found to
74

have been filed merely "for future purposes."  Thus, according to the Court of Appeals, "[a]dmittedly,
75

there is no immediate and imperative need for the construction of a right of way as the dominant
estate and its surrounding properties remain as agricultural lands under tenancy." 76

The aspect of necessity may not be specifically included in the requisites for the grant of compulsory
easement under the Civil Code. However, this goes into the question of "least prejudice." An
easement of right of way imposes a burden on a property and limits the property owner’s use of that
property. The limitation imposed on a property owner’s rights is aggravated by an apparent lack of
necessity for which his or her property will be burdened.

III
 The case is not barred by prior
judgment

Respondents argued in their Comment that the case was already barred by prior judgment because
petitioner’s predecessor-in-interest and her siblings had already filed an action for easement against
respondents in 2004. This case, according to respondents, had already been dismissed because of
the existence of another public road or highway, which can be accessed after the construction of a
bridge over the irrigation canal.77

Respondents alleged that petitioner’s predecessor-in-interest not only subdivided her property
among her children, which included petitioner. Petitioner’s predecessor-in-interest also converted
her property from farmland to home lots. This, respondents argued, is prohibited under Section 73(c)
and 73(e), and Section 74 of the Comprehensive Agrarian Reform Law.  Hence, the conversion was
78

illegal, and this case still involves the predecessor-in-interest’s property prior to its subdivision.
79

In her Reply,  petitioner argued that the property was not barred by prior judgment because she was
80

already the registered owner of her property before the complaint for easement was filed by her
mother and her siblings.

She was not a party to that case. 81

Dismissal of a case on the ground of res judicata requires that a final judgment must have been
rendered between the same parties over the same subject matter and cause of action. 82

Even if it is true that this and the alleged previous case involve the same issue, there can be no res
judicata if there is no identity of parties and/or subject matter. For purposes of determining if there is
identity of parties, two different persons may be considered as one identity if they represent the
same interest or cause. 83

Based on the records, petitioner's certificate of title was issued in her name on April 12, 1999.  If as
84

admitted by respondents, the previous case for easement was filed in 2004 and petitioner was not
represented in the case, then there could have been no identity of the parties and subject matter.
Petitioner's interest could not have been represented by her predecessor-in-interest or by her
siblings because none of them were the owners of petitioner's property in 2004.

Respondents' insistence that the cases involve the same interests because the alleged conversion
of petitioner's predecessor-in-interest's property from farmland to home lots was illegal involves the
determination of whether there was such conversion. The determination of whether there was
conversion may be relevant to the issue of the validity of petitioner's title but is not relevant to the
issue of the existence of petitioner's easement rights. This determination needs proper reception and
assessment of evidence, which is not the province of this court. That issue should be threshed out in
a separate case directly attacking petitioner's certificate of title.

WHEREFORE, the Court of Appeals Decision promulgated on August 12, 2010 and its Resolution
promulgated on October 28, 2010 are AFFIRMED.

SO ORDERED.
G.R. No. 167290               November 26, 2014

HERMANO OIL MANUFACTURING & SUGAR CORPORATION, Petitioner,

vs.
TOLL REGULA TORY BOARD, ENGR. JAIME S. DUMLAO, JR., PHILIPPINE NATIONAL
CONSTRUCTION CORPORATION (PNCC) and DEPARTMENT OF PUBLIC WORKS AND
HIGHWAYS (DPWH), Respondents.

DECISION

BERSAMIN, J.:

The issue to be determined concerns the demand of the petitioner to have access to the North
Luzon Expressway (NLEX) by way of an easement of right of way. The demand was rebuffed by the
respondents, and upheld by both the trial and appellate courts.

The Case

On appeal by review on certiorari is the decision promulgated on October 27, 2004,  whereby the
1

Court of Appeals (CA) affirmed the dismissal of the petitioner's complaint for specific performance by
the Regional Trial Court (RTC) in Malolos, Bulacan, Branch 7, through the order issued on March 6,
2002.2

Antecedents

The petitioner owned a parcel of land located at the right side of the Sta. Rita Exit of the NLEX
situated at Barangay Sta. Rita, Guiguinto, Bulacan and covered by Transfer Certificate of Title (TCT)
No. T-134222 in its name issued by the Registry of Deeds of Bulacan.  The parcel of land was
3

bounded by an access fence along the NLEX. In its letter dated September 7, 2001,  the petitioner
4

requested that respondent Toll Regulatory Board (TRB) grant an easement of right of way,
contending that it had been totally deprived of the enjoyment and possession of its property by the
access fence that had barred its entry into and exit from the NLEX. On September 26, 2001,
however, the TRB denied the petitioner's request, explaining thusly:

It is with regret that we cannot favorably consider your client's request at this point in time. Said
request is inconsistent with the provision of Section 7.0 of Republic Act No. 2000, also known as the
Limited Access Highway Act. Moreover, allowing easement of right-of-way may have
detrimental/adverse effect on the scheduled rehabilitation and improvement of the North Luzon
Expressway Interchanges, as well as on the operational problems, i.e. traffic conflicts that may arise,
if approved. 5

Thereafter, the petitioner sued the TRB and Engr. Jaime S. Dumlao, the TRB's Executive Director, in
the RTC,  demanding specific performance, the grant of the easement of right of way and damages
6

(Civil Case No. 37-M-2002). The petitioner amended its complaint to implead the Philippine National
Construction Corporation (PNCC) and the Department of Public Works and Highways (DPWH) as
indispensable parties.7

The petitioner alleged in its amended complaint that the access fence had totally deprived it of the
use and enjoyment of its property by preventing ingress and egress to its property; that the only
access leading to its property was the road network situated in front of its property; that it was
thereby deprived of its property without due process of law and just compensation; and that it was
also denied equal protection of the law because adjacent property owners had been given ingress
and egress access to their properties. It prayed that the RTC:

1. Immediately issue a writ of preliminary injunction/temporary restraining order enjoining the

defendants, its agents and/or representatives from depriving plaintiff to ingress and egress of
its property;

2. After due hearing:

a) Render the foregoing writ of preliminary injunction perpetual;

b) Granting plaintiff a right of way;

c) Declare the condemnation of plaintiff's property as null and void. Alternatively,

plaintiff prays that defendants be ordered to pay plaintiff a just and fair compensation
of the latter's property in the amount of not less than Four Thousand Pesos (Ps.
4,000.00) per square meter;

d) To pay plaintiff the amount of THREE HUNDRED THOUSAND PESOS (Ps.

300,000.00) and Ps. 5,000.00 per court appearance by way of Attorney's fees;

e) To pay plaintiff Moral and Exemplary Damages in the amount of Ps. 200,000.00;
and

f) To pay plaintiff the costs of suit.

Plaintiff further prays for such other reliefs and remedies as may be deemed just and equitable
under the premises. 8

Appearing for the TRB, the Office of the Solicitor General (OSG) filed a Motion to Dismiss with
Opposition to the Application for the Issuance of Temporary Restraining Order and/or Writ of
Preliminary Injunction based on the following grounds: 9

I.

THE HONORABLE COURT HAS NO JURISDICTION OVER THE CASE

II.

THE PETITION ST A TES NO CAUSE OF ACTION CONSIDERING THAT: A. PLAINTIFF IS NOT

THE REAL PARTY IN INTEREST B. EASEMENT WILL NOT LIE BECAUSE THE LIMITED
ACCESS TO THE NORTH LUZON EXPRESSWAY IS ALLOWED UNDER REPUBLIC ACT 2000 C.
THE STATE CANNOT BE SUED WITHOUT ITS CONSENT

III.

THE REQUISITES FOR THE ISSUANCE OF TEMPORARY RESTRAINING ORDER AND/OR

WRIT OF INJUNCTION ARE NOT PRESENT

IV.
THE COMPLAINT HAS NO LEGAL BASIS, THE PROPER REMEDY AVAILABLE IN THIS CASE IS
NOT COMPLAINT BUT A PETITION roR CERTIORARI UNDER RULE 65 OF THE RULES OF
COURT.

In its order dated March 6, 2002,  the RTC granted the motion to dismiss, observing as follows:
10

The present action against the defendants Toll Regulatory Board and its Executive Director, Engr.
Jaime S. Dumlao, Jr., could be considered as a suit against the state without its consent as among
the reliefs prayed for in the complaint is to require the said defendants to pay, jointly and severally, a
just and reasonable compensation of the plaintiff's property which, if awarded in the judgment
against said defendants, would ultimately involve an appropriation by the state of the amount
needed to pay the compensation and damages so awarded. Moreover, as pointed out by the
defendants-movants, defendant Jaime S. Dumlao, Jr. is sued in his official capacity so that the
instant complaint against him is tantamount to a claim against the state which cannot be sued
without its consent.

This principle applies with equal force as regards new defendant Department of Public Works and
Highways (DPWH).

Defendant Philippine National Construction Corporation (PNCC), on the other hand, was impleaded
as additional defendant being the entity that operates the North Luzon Expressway and was
primarily responsible in depriving the plaintiff of the use and enjoyment of its property by reason of
the construction of the access or right of way fence that prevents ingress to and egress from the
subject property, considering further that the other defendants had refused to grant plaintiff's request
for an casement of right of way.

The main objective and prayer of the plaintiff is for this court to issue a writ of injunction that will
restrain the defendants from depriving it of ingress and egress to its property in question or to grant
to it a right of way to its property.

Suffice it to say that the main relief sought by the plaintiff is beyond the jurisdiction of this court to
grant as provided for under Presidential Decree No. 1818 and Republic Act No. 8975 which
essentially prohibit the courts from issuing temporary restraining orders and/or writs of injunction
against government infrastructure projects, and which expressly declares any such TRO or writ of
injunction void under Section 3 of R.A. No. 8975.

In view of all the foregoing, the motion to dismiss is hereby GRANTED.

WHEREFORE, the instant complaint is hereby DISMISSED.

SO ORDERED. 11

The petitioner sought reconsideration, but the R TC denied its motion on July 25, 2002. 12

The petitioner appealed. 13

Judgment of the CA

On October 27, 2004, the CA promulgated its assailed judgment, affirming the RTC's dismissal of
the complaint, to wit:
The law is clear. Plaintiff-appellant does not deny that the NLEX is a limited access facility. Neither
did it put forward any reason why it should not be covered by the said law. Plaintiff-appellant,
therefore, cannot expect any court to issue a decision in its favor in violation of an existing law. The
Court further notes that plaintiff-appellant skirted this issue in its pleadings perhaps because it
recognizes the fact that its prayers in the complaint before the trial court is in violation of the said
law.

Moreover, as pointed out by defendants-appellees (Rollo, p. 19 and 127-128), when plaintiff-

appellant acquired the property on December 14, 1999 (See: Records, p. 33), the NLEX was already
in existence and as a matter of fact Entry No. 189568 in the title indicated that a portion of the
property was already sold to the Republic of the Philippines (See: Dorsal portion, Records, p. 33). It
is basic that a person cannot demand an easement of right of way if the isolation of the property was
due to owner's own act (Art. 649, NCC; Villanueva v Velasco, 346 SCRA 99[2000]). In the present
case, when the plaintiff-appellant bought the property in 1999, the NLEX was already in existence
and so was the access fence. In short, its predecessors-in-interest allowed the property to be
isolated. Plaintiff-appellant is now bound by the acts of its predecessors-in-interest.

Moreover, as admitted by plaintiff-appellant in its amended complaint, there is a road network in front
of the property which serves as its access (Records, p. 28). It is settled that to be able to demand a
compulsory right of way, the dominant estate must not have adequate access to a public highway
(Villanueva v Velasco, supra). Plaintiff appellant did not complaint about the adequacy of the existing
road works.

Also, as pointed out by defendants-appellees, the action below was one for specific performance
which is proper only in case of contractual breach. In the present case, plaintiff-appellant cannot
claim that defendants-appellees committed a breach of contract because there is precisely no
contract between them.

As to the matter of non-suability, the Court notes that while defendant-appellee PNCC is a
government owned and controlled corporation, the other defendants-appellees are either agencies
of the State (DPWH and TRB) or an employee of a government agency. Plaintiff appellant argued
that the principle of non-suability of the state does not apply when the government acted in a non-
governmental capacity. The Court, however, notes that plaintiff-appellant merely cites cases to this
effect but did not put forward any argument why the maintenance of NLEX should be considered as
a non-governmental function. It cannot be denied that the maintenance of the highways is part of the
necessary functions of the government of maintaining public infrastructures.

Coming now to PNCC although it is not strictly a government agency, its function is a necessary
incident to a government function and, hence, it should likewise enjoy immunity from suit (See:
Union Insurance Society qf Canton, Ltd. v Republic of the Philippines, 46 SCRA 120 (1972]).

As to the assertion that no expropriation proceeding was taken against the subject property, the
Court agrees with the PNCC that these arguments were not raised in the Court below and, hence, is
no longer proper at this stage. Moreover, the Court notes that the proper party to complain against
the alleged lack of proper expropriation proceeding is the previous owner, when portion of the
property was sold to the Republic of the Philippines in 1979.

WHEREFORE, the appealed Order dated March 6, 2002 of the Regional Trial Court of Malolos,
Bulacan, Branch 7, in Civil Case No. 37-M-2002 is hereby AFFIRMED.

SO ORDERED. 14
 Issues

The present appeal is anchored on the following grounds, namely:

FIRST

THE DECISION OF THE COURT OF APPEALS IS REPUGNANT TO THE DUE PROCESS AND
EQUAL PROTECTION CLAUSE ENSHRINED IN OUR CONSTITUTION AND PREY AILING
JURISPRUDENCE.

SECOND

THE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN DECLARING

THAT ENTRY NO. 189568 IN THE TITLE OF HEREIN PETITIONER WAS ALREADY IN
EXISTENCE WHICH SHOWED THAT EVEN BEFORE THE ACQUISITION OF THE PROPERTY IN
1999, THE NLEX WAS ALREADY IN EXISTENCE AND SO WAS THE ACCESS FENCE. THUS,
ITS PREDECESSORS-IN-INTEREST ALLOWED THE PROPERTY TO BE ISOLATED.

THIRD

THE COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THAT RESPONDENT PNCC,

ALTHOUGH NOT STRICTLY A GOVERNMENT AGENCY, SHOULD LIKEWISE ENJOY IMMUNITY
FROM SUIT. 15

The foregoing grounds boil down to the issue of whether Civil Case No. 37-M-2002 was properly
dismissed.

Ruling

We concur with both lower courts.

In our view, the TRB, Dumlao and the DPWH correctly invoked the doctrine of sovereign immunity in
their favor. The TRB and the DPWH performed purely or essentially government or public functions.
As such, they were invested with the inherent power of sovereignty. Being unincorporated agencies
or entities of the National Government, they could not be sued as such. On his part, Dumlao was
acting as the agent of the TRB in respect of the matter concerned.

In Air Transportation Office v. Ramos,  we expounded on the doctrine of sovereign immunity in the
16

following manner:

An unincorporated government agency without any separate juridical personality of its own enjoys
immunity from suit because it is invested with an inherent power of sovereignty. Accordingly, a claim
for damages against the agency cannot prosper; otherwise, the doctrine of sovereign immunity is
violated. However, the need to distinguish between an unincorporated government agency
performing governmental function and one performing proprietary functions has arisen. The
immunity has been upheld in favor of the former because its function is governmental or incidental to
such function; it has not been upheld in favor of the latter whose function was not in pursuit of a
necessary function of government but was essentially a business. Nonetheless, the petitioner
properly argued that the PNCC, being a private business entity, was not immune from suit. The
PNCC was incorporated in 1966 under its original name of Construction Development Corporation of
the Philippines (CDCP) for a term of fifty years pursuant to the Corporation Code.  In 1983, the
17
CDCP changed its corporate name to the PNCC to reflect the extent of the Government's equity
investment in the company, a situation that came about after the government financial institutions
converted their loans into equity following the CDCP's inability to pay the loans.  Hence, the
18

Government owned 90.3% of the equity of the PNCC, and only 9.70% of the PNCC's voting equity
remained under private ownership.  Although the majority or controlling shares of the PNCC
19

belonged to the Government, the PNCC was essentially a private corporation due to its having been
created in accordance with the Corporation Code, the general corporation statute.  More specifically,
20

the PNCC was an acquired asset corporation under Administrative Order No. 59, and was subject to
the regulation and jurisdiction of the Securities and Exchange Commission.  Consequently, the
21

doctrine of sovereign immunity had no application to the PNCC.

The foregoing conclusion as to the PNCC notwithstanding, the Court affirms the dismissal of the
complaint due to lack of jurisdiction and due to lack of cause of action.

It appears that the petitioner's complaint principally sought to restrain the respondents from
implementing an access fence on its property, and to direct them to grant it a right of way to the
NLEX. Clearly, the reliefs being sought by the petitioner were beyond the jurisdiction of the RTC
because no court except the Supreme Court could issue an injunction against an infrastructure
project of the Government. This is because Presidential Decree No. 1818, issued on January 16,
1981, prohibited judges from issuing restraining orders against government infrastructure projects,
stating in its sole provision: "No court in the Philippines shall have jurisdiction to issue any restraining
order, preliminary injunction or preliminary order, preliminary mandatory injunction in any case,
dispute or controversy involving an infrastructure project." Presidential Decree No. 1818 was
amended by Republic Act No. 8975,  approved on November 7, 2000, whose pertinent parts
22

provide:

Section 3. Prohibition on the Issuance of Temporary Restrainin;; Orders, Preliminary Injunctions and
Preliminary Mandatory Injunctions.-No court, except the Supreme Court, shall issue any temporary
restraining order, preliminary injunction or preliminary mandatory injunction against the government,
or any of its subdivisions, officials or any person or entity, whether public or private, acting under the
government's direction, to restrain, prohibit or compel the following acts:

(a) Acquisition, clearance and development of the right-of-way and/or site or location of any
national government project;

(b) Bidding or awarding of contract/project of the national government as defined under

Section 2 hereof;

(c) Commencement, prosecution, execution, implementation, operation of any such contract

or project;

(d) Termination or rescission of any such contract/project; and

(e) The undertaking or authorization of any other lawful activity necessary for such
contract/project.

This prohibition shall apply in all cases, disputes or controversies instituted by a private party,
including but not limited to cases filed by bidders or those claiming to have rights through such
bidders involving such contract/project. This prohibition shall not apply when the matter is of extreme
urgency involving a constitutional issue, such that unless a temporary restraining order is issued,
grave injustice and irreparable injury will arise. The applicant shall file a bond, in an amount to be
fixed by the court, which bond shall accrue in favor of the government if the court should finally
decide that the applicant was not entitled to the relief sought.

If after due hearing the court finds that the award of the contract is null and void, the court may, if
appropriate under the circumstances, award the contract to the qualified and winning bidder or order
a rebidding of the same, without prejudice to any liability that the guilty party may incur under
existing laws.

Section 4. Nullity of Writs and Orders.-Any temporary restraining order, preliminary injunction or
preliminary mandatory injunction issued in violation of Section 3 hereof is void and of no force and
effect.

Section 5. Designation of Regional Trial Courts.-The Supreme Court may designate regional trial
courts to act as commissioners with the sole function of receiving facts of the case involving
acquisition, clearance and development of right-of-way for government infrastructure projects. The
designated regional trial comt shall within thirty (30) days from the date of receipt of the referral,
forward its findings of facts to the Supreme Court for appropriate action. x x x

As to what was embraced by the term infrastructure project as used in Presidential Decree No.
1818, the Court has ruled in Francisco, Jr. v. UEMMARA Philippines Corporation: 23

PD 1818 proscribes the issuance of a writ of preliminary injunction in any case involving an
infrastructure project of the government. The aim of the prohibition, as expressed in its second
whereas clause, is to prevent delay in the implementation or execution of government infrastructure
projects (particularly through the use of provisional remedies) to the detriment of the greater good
since it disrupts the pursuit of essential government projects and frustrates the economic
development effort of the nation.

Petitioner argues that the collection of toll fees is not an infrastructure project of the government. He
cites the definition of "infrastructure projects" we used in Republic v. Silerio: The term "infrastructure
projects" means "construction, improvement and rehabilitation of roads, and bridges, railways,
airports, seaports, communication facilities, irrigation, flood control and drainage, water supply and
sewage systems, shore protection, power facilities, national buildings, school buildings, hospital
buildings, and other related construction projects that form part of the government capital
investment."

xxxx

The definition of infrastructure projects specifically includes the improvement and rehabilitation of
roads and not just its construction. Accordingly, even if the Coastal Road was merely upgraded and
not constructed from scratch, it is still covered by the definition. Moreover, PD 1818 itself states that
any person, entity or governmental official cannot be prohibited from continuing the execution or
implementation of such project or pursuing any lawful activity necessary for such execution or
implementation. Undeniably, the collection of toll fees is part of the execution or implementation of
the MCTEP as agreed upon in the TOA. The TOA is valid since it has not been nullified. Thus it is a
legitimate source of rights and obligations. It has the force and effect of law between the contracting
parties and is entitled to recognition by this Court. The MCTEP is an infrastructure project of the
government forming part of the government capital investment considering that under the TOA, the
government owns the expressways comprising the project. (Emphasis supplied.)

There can be no question that the respondents' maintenance of safety measures, including the
establishment of the access fence along the NLEX, was a component of the continuous
improvement and development of the NLEX. Consequently, the lower courts could not validly
restrain the implementation of the access fence by granting the petitioner its right of way without
exceeding its jurisdiction.

Nor did the establishment of the access fence violate the petitioner's constitutional and legal rights.

It is relevant to mention that the access fence was put up pursuant to Republic Act No. 2000 (Limited
Access Highway Act), the enforcement of which was under the authority of the DOTC. Clarifying the
DOTC's jurisdiction under this law in Mirasol v. Department of Public Works and Highways,  the 24

Court has said—

RA 2000, otherwise known as the Limited Access Highway Act, was approved on 22 June 1957.
Section 4 of RA 2000 provides that "[t]he Department of Public Works and Communications is
authorized to do so design any limited access facility and to so regulate, restrict, or prohibit access
as to best serve the traffic for which such facility is intended." The RTC construed this authorization
to regulate, restrict, or prohibit access to limited access facilities to apply to the Department of Public
Works and Highways (DPWH).

The RTC's ruling is based on a wrong premise. The RTC assumed that the DPWH derived its
authority from its predecessor, the Department of Public Works and Communications, which is
expressly authorized to regulate, restrict, or prohibit access to limited access facilities under Section
4 of RA 2000. However, such assumption fails to consider the evolution of the Department of Public
Works and Communications.

xxxx

Upon the ratification of the 1987 Constitution in February 1987, the former Ministry of Public Works
and Highways became the Department of Public Works and Highways (DPWH) and the former
Ministry of Transportation and Communications became the Department of Transportation and
Communications (DOTC).

DPWH issued DO 74 and DO 215 declaring certain expressways as limited access facilities on 5
April 1993 and 25 June 1998, respectively. Later, the TRB, under the DPWH, issued the Revised
Rules and Regulations on Limited Access Facilities. However, on 23 July 1979, long before these
department orders and regulations were issued, the Ministry of Public Works, Transportation and
Communications was divided into two agencies - the Ministry of Public Works and the Ministry of
Transportation and Communications - by virtue of EO 546. The question is, which of these two
agencies is now authorized to regulate, restrict, or prohibit access to limited access facilities?

Under Section 1 of EO 546, the Ministry of Public Works (now DPWH) assumed the public works
functions of the Ministry of Public Works, Transportation and Communications. On the other hand,
among the functions of the Ministry of Transportation and Communications (now Department of
Transportation and Communications [DOTC]) were to (1) formulate and recommend national policies
and guidelines for the preparation and implementation of an integrated and comprehensive
transportation and communications systems at the national, regional, and local levels; and (2)
regulate, whenever necessary, activities relative to transportation and communications and prescribe
and collect fees in the exercise of such power. Clearly, under EO 546, it is the DOTC, not the
DPWH, which has authority to regulate, restrict, or prohibit access to limited access facilities.

Even under Executive Order No. 125 (EO 125) and Executive Order No. 125-A (EO 125-A), which
further reorganized the DOTC, the authority to administer and enforce all laws, rules and regulations
relative to transportation is clearly with the DOTC.
Thus, DO 74 and DO 215 arc void because the DPWH has no authority to declare certain
expressways as limited access facilities.  Under the law, it is the DOTC which is authorized to
1âwphi1

administer and enforce all laws, rules and regulations in the field of transportation and to regulate
related activities. (Emphasis supplied.)

Moreover, the putting up of the access fence on the petitioner's property was in the valid exercise of
police power, assailable only upon proof that such putting up unduly violated constitutional
limitations like due process and equal protection of the law.  In Mirasol v. Department of Public
25

Works and Highways, the Court has further noted that:

A toll way is not an ordinary road. As a facility designed to promote the fastest access to certain
destinations, its use, operation, and maintenance require close regulation. Public interest and safety
require the imposition of certain restrictions on toll ways that do not apply to ordinary roads. As a
special kind of road, it is but reasonable that not all forms of transport could use it.
26

Clearly, therefore, the access fence was a reasonable restriction on the petitioner's property given
the location thereof at the right side of Sta. Rita Exit of the NLEX. Although some adjacent properties
were accorded unrestricted access to the expressway, there was a valid and reasonable
classification for doing so because their owners provided ancillary services to motorists using the
NLEX, like gasoline service stations and food stores.  A classification based on practical
27

convenience and common knowledge is not unconstitutional simply because it may lack purely
theoretical or scientific uniformity.
28

Lastly, the limited access imposed on the petitioner's property did not partake of a compensable
taking due to the exercise of the power of eminent domain. There is no question that the property
was not taken and devoted for public use. Instead, the property was subjected to a certain restraint,
i.e. the access fence, in order to secure the general safety and welfare of the motorists using the
NLEX. There being a clear and valid exercise of police power, the petitioner was certainly not
entitled to any just compensation. 29

WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the decision
promulgated on October 27, 2004; and ORDERS the petitioner to pay the costs of suit.

SO ORDERED.

G.R. No. 163157

SPOUSES BERNABE MERCADER, JR. and LORNA JURADO-MERCADER, OLIVER

MERCADER, GERALDINE MERCADER and ESRAMAY MERCADER, Petitioners,
vs.
SPOUSES JESUS BARDILAS and LETECIA GABUYA BARDILAS, Respondents.

DECISION

BERSAMIN, J.:

The owner of the servient estate retains ownership of the portion on which the easement is
established, and may use the same in such manner as not to affect the exercise of the easement. 1
The Case

This appeal seeks to undo and reverse the decision promulgated on March 18, 2003 "only insofar as
Civil Case No. CEB-12783 is concerned," whereby the Court of Appeals (CA) partly affirmed the
judgment rendered on October 10, 1995 by the Regional Trial Court (RTC) in Civil Case No. CEB-
12783 and Civil Case No. CEB-13384. In so doing, the CA recognized the right of the respondents
as the owners of the servient estate to the road right of way.

Antecedents

The issue concerns the right of way between the owners of three parcels of land denominated as Lot
No. 5808-F-l, Lot No. 5808-F-2-A and Lot 5808-F-2-B. The lots were portions of Lot No. 5808-F,
situated in Barangay Punta Princesa in Cebu City with an area of 2,530 square meters, and
registered under Transfer Certificate of Title No. 78424 of the Registry of Deeds in Cebu City in the
name of "Arsenia Fernandez, of legal age, married to Simeon Cortes, both Filipinos."  Another
2

subdivision lot derived from Lot No. 5808-F was Lot No. 5808-F-3

Lot No. 5808-F-l, which fronted a side street within the Clarita Village, contained 289 square meters,
and was registered under TCT No. 88156 in the names "OLIVER, 14 yrs. old, GERALDINE, 12 yrs.
old, ESRAMA Y, 10 yrs. old, all surnamed MERCADER, Filipino, minors, and single."  Such3

registered owners were the children of petitioner Bernabe Mercader, Jr. by his first wife, Rebecca
Gabuya Mercader, who had died in 1975.

Lot No. 5808-F-2-A, situated behind Lot No. 5808-F-l, had an area of 89 square meters. It was
covered by TCT No. 107914 in the names of "spouses BERNABE MERCADER AND LORNA
JURADO, of legal age, Filipinos,"   and was particularly described as follows:
4

A parcel of land (Lot 5808-F-2-A, Psd-07-018600, being a portion of Lot 5808-F-2, Psd-07-01-
004579). Situated in the Barrio of Punta Princesa, City of Cebu, Province of Cebu, Island of Cebu.
Bounded on the North and East along lines 1-2-3 by Lot 5808-F-2-B, with existing Right of Way
(3.00 meters wide); of the subdivision plan; on the South along line 3-4 by Lot 5726, Cebu
Cadastre; and on the West, along line 4-1 by Lot 5808-F-1, Psd-07-01-004579. Beginning at a point
marked "1" on plan being S. 50 deg. 59'W., 411.55 m. from BM No. 44, Cebu Cadastre; thence N.
60 deg. 34' E., 4.99 m. to point 2; thence S. 20 deg. 33' E., 17.95 m. to point 3; thence S. 60 deg. 34'
W., 4.99 m. to point 4; thence N. 20 deg. 33' W., 17.94 m. to point of beginning; containing an area
of EIGHTY NINE (89) SQUARE METERS, more or less. x x x (Emphasis Supplied)

Lot No. 5808-F-2-B, situated behind Lot No. 5808-F-2-A, contained 249 square meters, and was
covered by TCT No. 107915 in the names of "spouses LETECIA GABUY A BARDILAS and JESUS
BARDILAS, of legal age, Filipinos."  It was particularly described as follows:
5

A parcel of land (Lot 5808-F-2-B, Psd-07-018600, being a portion of Lot 5808-F-2, Psd-07-01-
004579). Situated in the Barrio of Punta Princesa, City of Cebu, Province of Cebu, Island of Cebu.
Bounded on the SW., along line 1-2 by Lot 5808-F-1, Psd-07-01-004579; on the West along line 2-3
by Lot 5726, Cebu Cad.; on the North along line 3-4-5 by Lot 5725, Cebu Cadastre; on the East,
along line 5-6 by Lot 5808-F-3, Psd-07-01-004579; on the South along line 6-7 by Lot 5726, Cebu
Cad. and on the West, along line 7-8-1 by Lot 5808-F-2-A of the subdivision plan; with a Road
Right of Way (3.00 meters wide). Beginning at a point marked "1 "on plan being S. 50 deg., 59'W.,
411.55 m. from BM No. 44, Cebu Cadastre; thence S. 64 deg .. 87'W., 16.02 m. to point 2; thence N.
22 deg. 23'W., 3.01 m. to point 3; thence N. 64 deg. 10'E., 16.12 m. to point 4; thence N. 64 deg.
10'E., 14.00 m. to point 5; thence S. 21 deg. 20'E., 20.01 m. to point 6; thence S. 60 deg. 34' W.,
9.40 m. to point 7; thence N. 20 deg. 33'W., 17.95 m. to point 8; thence S. 60 deg. 34'W., 4.99 m. to
the point of the beginning. Containing an area of TWO HUNDRED FORTY NINE (249) SQUARE
METERS, more or less. x x x (Emphasis supplied)

The right of way mentioned in the TCT No. 107915 of the Spouses Bardilas (Lot No. 5808-F-2-B)
exited into the Clarita Subdivision and was roughly 300 lineal meters from Buhisan Road, a national
road.

Behind Lot No. 5808-F-2-B was Lot No. 5808-F-3, registered under TCT No. 88158 in the name
of"LETECIA GABUYA BARDILAS, married to JESUS BARDILAS, both of legal age and
Filipinos,"  particularly described as follows:
6

A parcel of land (Lot 5808-F-3, Psd-07-07-004579, bearing a portion of 5808-F, psd-07-07-003019);

situated in the District of Punta Princesa, Ciky (sic) of Cebu, Island of Cebu. Bounded on the Ne.
and NW. along lines 1-2-3- by lot 5808-F-4; on the NW., along line 3-4 by lot 5808-F-5; along line 4-
5 by lot 5808-F-6, all of the subdivision plan; on the NW., along line 5-6 by Lot 5725, Cebu Cadatre;
on the East and SE., along lines 7-8-9 by lot 5808-B; on the SE., along line 9-1 by lot 5808-C; along
10-11-12 bylot (sic) 5808-D; along line 12-13-14 by Lot 5808-E., all psd-0701003019; on the SE.,
along line 14-45 by lot 5726, Cebu Cadastre; on the SW., along line 15-16 by Lot 5808-F-2 of the
subdivision plan; and on the NW, along line 16-1 by lot 5725, Cebu Cadastre. x x x

In relation to Lot No. 5808-F-3, there is another right of way about 40 lineal meters away from
Buhisan Road. 7

On May 11, 1992, the Clarita Village Association erected a concrete perimeter fence to close the exit
point of the right of way of the Spouses Bardilas from Lot No. 5808-F-2-B to the existing road within
Clarita Village. The closure forced the Spouses Bardilas to use the second exit to Buhisan Road,
which is from their Lot No. 5808-F-3.

At the instance of the Clarita Village Association, and the Spouses Bardilas, Engr. Edgar T. Batiquin
of the Office of the Building Official of Cebu City, conducted his verification/investigation of the
vicinity of the disputed right of way. Engr. Batiquin later on reported to the Building Official the
following findings in his letter dated June 15, 1992,  to wit:
8

Per verification/investigation conducted in connection with the above subject the findings are to wit:

1. That the fence constructed by the association should have the

necessary permit;

2. Said fence encroached a small portion of the road right-of-way of Ms. Bardilas (please see
attached sketch plan, color red);

3. That a fence and portion of the redidential house owned by Mr. Bernabe Mercader have also
encroached the road right-of-way (please see attached sketch plan, color green);

4. Total area encroached on the right-of-way is 14.00 square meters.

Subsequently, on July 1, 1992, Barangay Chairman Jose F. Navarro of Punta Princesa, Cebu City
convened a meeting among the interested parties at the Chinese Temple inside the Clarita Village.
In attendance were officers of the Clarita Village Association, including petitioner Bernabe Mercader,
Jr., and barangay officials. The Clarita Village Association explained that its closure of the right of
way had been for the purpose of preventing individuals of "questionable character" from using the
right of way to enter the area to steal from the residents of the Clarita Village. The meeting resulted
in the discussion and agreement of the following matters, to wit: 9

1) The villagers/Clarita Village Association WILL HAVE NO OBJECTION for the spouses: Jesus and
Letecia Bardilas (on their own expense) (sic) demolish a portion of the wall fence erected on a
portion of Clarita Village side street blocking the said spouses' right of way; - and replace with IRON
GATE so that they can use it anytime. Buying cost of the iron gate - as well as labor cost in replacing
the knocked out portion of the said wall fence with iron gate will be shouldered by spouses: Jesus
and Letecia Bardilas.

2) KEYS TO THE IRON GATE. - One (1) key will be given to the spouses MR. & MRS. BERNABE
MERCADER so that at anytime they can open the gate in going thru their residence. ONE (1) key
will be kept by spouses: Jesus and Letecia Bardilas for their usage in opening the iron gate anytime
they may open it.

3) All parties present were in accord that the contents of items 1 to 3 STAND as their agreement in
solving this instant case, and also in accord to implement the agreement as soon as possible. THEY
ALSO AGREE THAT IN VIEW OF THIS AGREEMENT, - THEY ALL CONSIDER THIS CASE
AMICABLY SETTLED.

By letter dated August 14, 1992, 10 the Spouses Bardilas, through Atty.

Alfredo J. Sipalay, informed the Spouses Mercader of the encroachment by about 14 square meters
of the latter's residential house and fence on the right of way. Hence, they wrote that they were
giving the latter two alternatives, namely:

1. Pay THIRTY THOUSAND PESOS (₱30,000.00) for the 14 square meters which your house and
wall fence have encroached (the amount represents ₱2,000.00 per square meter, which is the fair
market value of the property plus P2,000.00 for the expenses the Spouses Bardilas have incurred as
a result of the encroachment of your property); or

2. Demolish the wall fence and the portion of your house which encroached my clients' property.

On August 19, 1992, the Spouses Mercader, through Atty. Rolindo A. Navarro, responded by
insisting that as the owners of Lot No. 5808-F-2-A they were equally entitled to the right of way; and
that they were proposing to buy the equivalent portion of the right of way to which they were entitled
at a reasonable price, viz.: 
11

Dear Compañero:

Your letter dated August 14, 1992 addressed to Mr. Bernabe Mercader has been referred to me for
appropriate response.

In this connection, please be informed that my said client is equally entitled to the use of the road-
right-of-way subject of your letter having bought Lot No. 5808-F-2-A which is one of the two
dominant estates entitled thereto. The other estate is Lot No. 5808-F-2-B owned by your clients.
Incidentally, this road-right-of-way has not been used for its purpose as the exit to Clarita Village has
been closed. Attached herewith is copy of TCT No. 107914 for Lot No. 5808-F-2-A as Annex "A".
However, if your client is willing, my client proposes to buy the equivalent portion of the road-right-of-
way to which they are entitled to at a reasonable price.

Please feel free to communicate with me on this matter.

In their reply of August 24, 1992,   the Spouses Bardilas rejected the claim of the Spouses Mercader
12

that they were entitled to the use of the right of way, and reiterated their demand for ₱30,000.00 as
the fair market value of the property, stating:

Dear Atty. Navarro:

This is in reply to your letter dated August 19, 1992 which our office received on August 20, 1992.

My clients, Spouses Jesus and Letecia Bardilas, disagree with Mr. Bernabe Mercader's claim that he
is entitled to the use of their road right of way. Attached as Annex "A" is a photocopy of my clients'
TCT No. 107915 of the property in question which clearly states that my clients' property is subject to
three (3) meters wide right of way. Mr. Mercader's TCT No 107914, which was issued on the same
day and time as my clients' TCT on March 30, 1989 at 10:10 a.m., don't (sic) have the same
provision regarding the use of a right of way. This is because Mr. Mercader's property is fronting the
street while my clients' property is situated at the back of Mr. Mercader's property; hence, the
provision regarding the right of way on my clients' TCT.

It is true that my clients' road right of way has been closed since June, 1992 due to a wall
constructed by the Clarita Village Association resulting in much inconvenience to my clients since
they have to pass through a circuitous and muddy road. However, in a meeting with their Barangay
Captain, the officers of the Clarita Village Association already agreed to let my clients pass through
the wall provided they will put up a gate between the walls. My clients already have a three (3) meter
wide gate ready to be put up only to discover that it won't fit because Mr. Mercader has encroached
their road right of way. Hence, my letter to Mr. Mercader on August 14, 1992, informing him to pay
₱30,000.00 to my clients or to demolished (sic) his wall fence and portions of his house which
encroached my clients' road right of way.

Since Mr. Mercader opts to pay my clients, we reiterate our demand for ₱30,000.00 which is the fair
market value of my clients' property.

We hope we could settle this matter within this week.

Civil Case No. CEB-12783

Finding the demand for payment of ₱30,000.00 by the Spouses Bardilas to be unlawful, unwarranted
and unfounded, the Spouses Mercader commenced on September 8, 1992 their action for
declaratory relief, injunction and damages against the Spouses Bardilas in the RTC in Cebu City
(Civil Case No. CEB-12783). The case was assigned to Branch 20.

The Spouses Mercader alleged that they were the lawful and registered owners of adjoining lots, to
wit: Lot No. 5808-F-1 and Lot No. 5808-F-2-A where their residential house stood; 13 and that their
Lot No. 5808-F-2-A and the Spouses Bardilas' Lot No. 5805-F-2-B were portions of Lot No. 5808-F-2
that had been subdivided and sold separately to each of them; 14 that Lot No. 5808-F-2-A was
bounded on the North and the East by Lot No. 5808-F-2-B; that in 1989, they had used a negligible
portion 8f the easement to build their fence and a portion of their residential house, without impairing
the use for which it was established and without any objection, protest or complaint from the
respondents; that they retained the ownership of the portion of the property on which the easement
was established pursuant to Article 630 of the Civil Code; that the non-user of the easement had
extinguished it pursuant to Article 631, paragraph 3, of the Civil Code; that the rights of the dominant
and servient estates had merged in them; and that there was a need to declare their rights to that
portion of their property on which the easement of right of way had been established vis-a-vis the
unlawful demands of the Spouses Bardilas.

The Spouses Mercader prayed that they be declared as having retained the ownership of the 63.33
square meters where the easement of right of way had been established; that the merger of the
rights of the servient estate owner and dominant estate owner be declared their favor;   and that the
15

Spouses Bardilas be made to pay damages.

In their answer,   the Spouses Bardilas averred that Lot No. 5808-F-2-A and Lot No. 5808-F-2-B
16

used to be parts of Lot No. 5808-F-2; that the right of way in question was a part of Lot No. 5808-F-
2-B that they owned as borne out by the technical descriptions of Lot No. 5808-F-2-A  and Lot No.
17

5808-F-2-B   as well as the subdivision plan of the properties;   that they learned of the
18 19

encroachment on the portion of their property being used as right of way only from the survey
conducted by Engr. Batiquin of the Office of the Building Official in June 1992;  and that they then
20

referred the matter to their lawyer for appropriate action.

The Spouses Bardilas stated as affirmative defense that although the property of the Spouses
Mercaders had a gate fronting the side street within the Clarita Village, they had allowed the latter to
use the right of way only because Bernabe Mercader, Jr. was the husband of the elder sister of
Letecia Gabuya Bardilas; that the Spouses Mercader abused the favor by using the right of way as
their garage; that they requested the Spouses Mercader to move their vehicles out but they got
angry and instigated the closure of the right of way by the Clarita Village Association, where he was
a ranking officer at the start of the dispute; that the Spouses Mercader were wrongly claiming the
extinguishment of the right of way; and that the Spouses Mercader had no cause of action against
them, and should be held liable for damages in their favor.

During the pre-trial on September 29, 1993, the trial court required the Spouses Mercader to amend
their petition to include the children of Bernabe Mercader, Jr. by his first wife, Rebecca Gabuya
Mercader, due to their being the registered owners of Lot No. 5808-F-1. The amended petition,
dated October 25, 1993, was filed on November 4, 1993. 21

Civil Case No. CEB-13384

In view of the encroachment by the Spouses Mercader on a portion of the road right of way, the
Spouses Bardilas could not fit their 3-meter wide iron gate. Another meeting with the officers of the
Clarita Village Association was held on November 11, 1992.  When the efforts of the parties to
22

amicably settle the issue failed, the Spouses Bardilas brought on December 24, 1992 their own suit
for specific performance with preliminary prohibitory or mandatory injunction against the Clarita
Village Association and the Spouses Mercader (Civil Case No. CEB-13384) in the RTC in Cebu City.
The case was raffled to Branch 10 of the RTC.

On October 5, 1993, the Spouses Bardilas moved for the consolidation of Civil Case No. CEB-13384
with Civil Case No. CEB-12783. The RTC (Branch 10) granted the motion for consolidation. 23

Judgment of the RTC

On October 10, 1995, the RTC rendered its consolidated decision in Civil Case No. CEB 12783 and
Civil Case No. CEB-13384, disposing: 24
WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered in favor of
petitioner Mercader's (sic) as against spouses Bardilas in Civil Case No. 12783:

(a) DECLARING the EXTINGUISHMENT of the easement of road right of way passing through the

real properties of petitioners spouses Mercader's (sic) and Bernabe Mercader, Jr. and his children
and the cancellation of the annotation of said easement from TCT No. 107914 and TCT No. 88156;

(b) DECLARING petitioner Mercader's (sic) as owners of said extinguished easement of right of

way;

(c) GRANTING to petitioner Mercader's (sic) the right to use and occupy the extinguised easement
which adjoins the Mercader's properties;

(d) ORDERING respondents spouses, Jesus and Letecia Bardilas to pay petitioners the following
amounts:

a) The sum of ₱100,000.00 as moral damages;

b) The sum of ₱35,000.00 as attorney's fees; and

c) The sum of ₱20,000.00 as costs of suit;

and in Civil Case No.13384:

(a) DISMISSING the amended complaint filed by plaintiffs spouses Bardilas;

(b) DECLARING the road network of the Clarita Village still as private properties and not public;

(c) DECLARING that the closure of OUTLET NO. 1 of said easement of right of way by the Clartita
Village as lawful and valid;

SO ORDERED.

On October 19, 1995, the Spouses Bardilas moved for a new trial on the ground of newly discovered
evidence,  representing that they had obtained the certification dated August 24, 1995 by Antonio V.
25

Osmeña, the developer of the Clarita Village and the attorney-in-fact of Carmen and Elena
Siguenza, the owners of the Clarita Village,  to the effect that the road network of the Clarita Village
26

had been donated to Cebu City. "hey appended to the motion the Deed of Donation of Road
Lots and the certification dated July 5, 1995   by Antonio B. Sanchez, Department Head III of the
27 28

Office of the City Engineer, Department of Engineering and Public Works of Cebu City, stating that
the road network within the Clarita Village "has been used as part of the road network of the City of
Cebu and as such was asphalted by the city thru F.T. Sanchez Construction in 1980." These
documents, according to the Spouses Bardilas, were newly discovered evidence that they "could
not, with reasonable diligence, have discovered and produced at the trial." 29

On November 13, 1995,   the RTC denied the motion for new trial because: (a) the Deed of
30

Donation of Road Lots had been in the possession of the movants' counsel, and had been in fact
shown to the court, but had neither been offered nor marked as evidence during the trial; (b) the
certifications (Annexes A and C of the motion for new trial) had derived their existence from
the Deed of Donation of Road Lots, and could not be considered as newly discovered evidence; (c)
the Deed of Donation of Road Lots did not bear the signature of then Acting City Mayor Eulogio
Borres as the representative of the donee; and (d) the Deed of Donation of Road Lots had not been
notarized. It noted that the failure to comply with the legal requirements for donations under the Civil
Code rendered the donation void and invalid, and could not alter the result of the litigation.

With the denial of their motion for new trial, the Spouses Bardilas appealed to the CA. 31

Decision of the CA

In their appeals, the Spouses Bardilas insisted that the RTC committed reversible errors in
declaring:32

I. That the Mercaders are the owners of the easement of right of way in question.

II. That the easement of right of way in question has been extinguished.

III. In granting the Mercaders the right to use and occupy the extinguished easement which adjoins
the Mercaders' properties.

IV. In awarding moral damages, attorney's fees and costs of suit to the Mercaders in Civil Case No.
CEB-12783.

V. In dismissing Civil Case No. CEB-13384 and in declaring the closure of the road right of way in
question by Clarita Village as lawful and valid.

On March 18, 2003, the CA promulgated the now assailed decision,  modifying the judgment of the
33

RTC and disposing as follows:

WHEREFORE, the instant appeal is PARTIALLY GRANTED. The assailed decision of the Regional

Trial Court of Cebu City, Branch 20 in Civil Case Nos. CEB-12783 and CEB-13384 is
hereby MODIFIED to read as follows:

WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered in favor of
respondents Spouses Jesus and Letecia Bardilas as against the petitioners Spouses Bernabe and
Lorna Mercader, Oliver Mercader, Geraldine Mercader and Esramay Mercader in Civil Case No.
12783:

1) DECLARING respondents Jesus and Letecia Bardilas as owners of the three (3) square meter
wide road in question;

2) GRANTING to respondents Jesus and Letecia Bardilas the right to use and occupy the said three
(3) square meter wide road; and

3) ORDERING petitioners to pay the respondents the sum of ₱20,000.00 as and for attorney's fees;

4) ORDERING the petitioners to pay the costs of suit;

and in Civil Case No. 13384:

1) DISMISSING the amended complaint filed by plaintiffs Spouses Jesus and Letecia Bardilas; and
2) DECLARING the road network of the Clarita Village still as private properties and not public.

SO ORDERED.

On April 28, 2003, the Spouses Mercader sought the reconsideration of the decision,  stating that
34

the CA had "erred in awarding the 3 meter road right of way to the [Spouses Bardilas] and in
ordering the respondent Mercader spouses, et al. to pay attorney's fees."  They argued that because
35

Lot No. 5808-F-2-A and Lot No.5808-F-2-B used to be one lot denominated as Lot No. 5808-F-2 that
had the same right of way leading to the Clarita Village, they "are also legally entitled to the other
half of the right of way" as owners of one of the subdivided lots;  that, as shown in their Exhibit
36

H,  Lot No. 5808-F-3 of the Spouses Bardilas "has another 3 meter road right of way towards
37

another point of Buhisan Road which is only about 40 lineal meters"  from their property; and that
38

the award of attorney's fees was "not proper there being no legal basis to grant the award. " 39

On March 16, 2004,   however, the CA denied Spouses Mercader's motion for reconsideration.
40

Hence, this appeal only insofar as Civil Case No. CEB-12783 was concemed. 41

Issues

The Spouses Mercaders raise the same issues aired in their motion for reconsideration in the
CA.  They contend that the technical description of their property contained the phrase "with existing
1âwphi1

Right of Way (3.00 meters wide)," which signified that they were equally "entitled to the road-right-of-
way being conferred upon them by TITLE pursuant to Article 622 of the New Civil Code." They
submit that:

Hence,

they too should equally share in its retention for uses other than the easement after its non-user
brought about by the closure of the exit point by Clarita Village Association. As borne out by the
evidence, the respective properties of petitioners Sps. Bernabe and Lorna Mercader, on one hand,
and Sps. Jesus and Letecia Bardilas, on the other hand, used to be a whole Lot 5808-F-2 with an
area of 338 square meters before the same was subdivided into Lot 5808-F-2-A with an area of 89
square meters for the petitioner spouses and Lot 5808-F-2-B with an area of 249 square meters for
the respondents. Before the subdivision, there was already a 3-meter wide road right of way leading
towards Clarita Village. Thus, after the subdivision, the subject easement was annotated in both
certificates of title as earlier stated. Very clearly, petitioners Bernabe and Lorna Mercader, and
respondents Jesus and Letecia Bardilas, should equally share in the area of the easement.
Consequently, the petitioners cannot be ordered to return the portion of easement on which part of
petitioners' house and fence stand.  42

Ruling of the Court

We cannot sustain the petitioners' claim that they acquired their right to the road right of way by title.

Easement or servitude, according to Valdez v. Tabisula, is "a real right constituted on another's
43

property, corporeal and immovable, by virtue of which the owner of the same has to abstain from
doing or to allow somebody else to do something on his property for the benefit of another thing or
person." "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. "44

It is settled that road right of way is a discontinuous apparent easement  in the context of Article 622
45

of the Civil Code, which provides that continuous non-apparent easements, and discontinuous ones,
whether apparent or not, may be acquired only by virtue of title. But the phrase with existing Right of
Way in the TCT is not one of the modes of acquisition of the easement by virtue of a title.
Acquisition by virtue of title, as used in Art. 622 of the Civil Code, refers to "the juridical act which
gives birth to the easement, such as law, donation, contract, and will of the testator." 46

A perusal of the technical description of Lot No. 5808-F-2-A indicates that the phrase with existing
Right of Way (3.00 meters wide) referred to or described Lot No. 5808-F-2-B,  which was one of the
47

boundaries defining Lot F-2-A. Moreover, under the Torrens system of land registration, the
certificate of title attests "to the fact that the person named in the certificate is the owner of the
property therein described, subject to such liens and encumbrances as thereon noted or what the
law warrants or reserves. The objective is to obviate possible conflicts of title by giving the public the
right to rely upon the face of the Torrens certificate and to dispense, as a rule, with the necessity of
inquiring further. The Torrens system gives the registered owner complete peace of mind, in order
that he will be secured in his ownership as long as he has not voluntarily disposed of any right over
the covered land."  The Torrens certificate of title is merely an evidence of ownership or title in the
48

particular property described therein. 49

What really defines a piece of land is not the area mentioned in its description, but the boundaries
therein laid down, as enclosing the land and indicating its limits.  As shown in the subdivision plan of
50

Lot No. 5808-F-2,  and based on the technical description of Lot No. 5808-F-2-B as appearing in
51

TCT No. 107915,  the right of way in dispute, which is "(B)ounded on the SW., along line 1-2 by Lot
52

5808-F-J, Psd-07-01-004579; on the West along line 2-3 by Lot 5726, Cebu Cad.; on the North
along line 3-4-5 by Lot 5725, Cebu Cadastre" was part of Lot No. 5808-F-2-B of the Spouses
Bardilas.

It is noteworthy that an encumbrance "subject to 3 meters wide right of way" was annotated on TCT
No. 107915, which covers Lot No. 5808-F-2-B of the Spouses Bardilas.  As the owners of the
53

servient estate, the Spouses Bardilas retained ownership of the road right of way even assuming
that said encumbrance was for the benefit of Lot No. 5808-F-2-A of the Spouses Mercader. The
latter could not claim to own even a portion of the road right of way because Article 630 of the Civil
Code expressly provides that "[t]he owner of the servient estate retains ownership of the portion on
which the easement is established, and may use the same in such manner as not to affect the
exercise of the easement."

With the right of way rightfully belonging to them as the owners of the burdened property, the
Spouses Bardilas remained entitled to avail themselves of all the attributes of ownership under
the Civil Code, specifically: jus utendi, jus fruendi, jus abutendi, jus disponendi and jus
vindicandi. Article 428 of the Civil Code recognizes that the owner has the right to enjoy and dispose
of a thing, without other limitations than those established by law.   In that regard, the CA cogently
54

pointed out: 55

Moreover, as owners of the three (3) square meter wide road in dispute, the appellants (referring to
the Bardilas spouses) may rightfully compel the petitioners-appellees to pay to them the value of the
land upon which a portion of their (petitioners-appellees) house encroaches, and in case the
petitioners-appellees fail to pay, the appellants may remove or demolish the encroaching portion of
the petitioners-appellees' house. xxxx
The second issue concerns the award of attorney's fees. Relying on Bernardo v. Court of Appeals,
(Special Sixth Division), the petitioners argue that the CA erred "in awarding attorney's fees to the
56

appellants after eliminating or refusing to award moral and exemplary damages;"  that the CA did
57

not make any finding to the effect "that the appellants were compelled to litigate with third persons or
to incur expenses to protect their interest;"  and that, consequently, the grant of attorneys' fees to
58

the Spouses Bardillas lacked legal basis.

The award of attorney's fees and expenses of litigation is governed by Article 2208 of the Civil
Code, to wit:

Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial
costs, cannot be recovered, except:

(1) When exemplary damages is awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or
incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil case or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs
plainly valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;

(8) In actions for indemnity under workmen's compensation and employer's liability laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorney's fees and expenses
of litigation should be recovered.

In all cases, the attorney's fees and expenses of litigation must be reasonable.

In Philippine National Construction Corporation v. APAC Marketing Corporation,  the Court opined
59

that whenever attorney's fees are granted, the basis for the grant must be clearly expressed in the
judgment of the court. It expounded on why this is so:

In ABS-CBN Broadcasting Corp. v. CA, this Court had the occasion to expound on the policy behind
the grant of attorney's fees as actual or compensatory damages:

(T)he law is clear the in the absence of stipulation, attorney's fees may be recovered as actual or
compensatory damages under any of the circumstance provided for in Article 2208 of the Civil Code.
The general rule is that attorney's fees cannot be recovered as part of damages because of the
policy that no premium should be placed on the right to litigate. They are not to be awarded every
time a party wins a suit. The power of the court to award attorney's fees under Article 2208 demands
factual, legal, and equitable justification. Even when a claimant is compelled to litigate with third
persons or to incur expenses to protect his rights, still attorney's fees may not be awarded where no
sufficient showing of bad faith could be reflected in a party's persistence in a case other than an
erroneous conviction of the righteousness of his cause.

In Benedicto v. Villaflores, we explained the reason behind the need for the courts to arrive upon an
actual finding to serve as basis for a grant of attorney's fees, considering the dual concept of these
fees as ordinary and extraordinary:

It is settled that the award of attorney's fees is the exception rather than the general rule; counsel's
fees are not awarded every time a party prevails in a suit because of the policy that no premium
should be placed on the right to litigate. Attorney's fees, as part of damages, are not necessarily
equated to the amount paid by a litigant to a lawyer. In the ordinary sense, attorney's fees represent
the reasonable compensation paid to a lawyer by his client for the legal services he has rendered to
the latter; while in its extraordinary concept, they may be awarded by the court as indemnity for
damages to be paid by the losing party to the prevailing party. Attorney's fees as part of damages
are awarded only in the instances specified in Article 2208 of the Civil Code. As such, it is necessary
for the court to make findings of fact and law that would bring the case within the ambit of these
enumerated instances to justify the grant of such award, and in all cases it must be reasonable.

We can glean from the above ruling that attorney's fees are not awarded as a matter of course every
time a party wins. We do not put a premium on the right to litigate. On occasions that those fees are
awarded, the basis for the grant must be clearly expressed in the decision of the court.

In awarding attorney's fees, the CA relied on Article 2208 (11) of the Civil Code. The exercise of the
discretion to allow attorney's fees must likewise be justified. In Eastern Shipping Lines,
Inc. v. Margarine-Verkaufs-Union,   the Court said:
60

Insofar as the present case is concerned, the lower court made no finding that it falls within any of
the exceptions that would justify the award of attorney's fees, such as gross and evident bad faith in
refusing to satisfy a plainly valid, just and demandable claim. Even under the broad eleventh
exception of the cited article which allows the imposition of attorney's fees "in any other case where
the court deems it just and equitable that attorney's fees and expenses in litigation should be
recovered," the Court stressed in Buan, supra, that "the conclusion must be borne out by findings of
facts and law. What is just and equitable in a given case is not a mere matter of feeling but of
demonstration . . . . Hence, the exercise of judicial discretion in the award of attorney's fees under
Article 2208 (11) of the Civil Code demands a factual, legal or equitable justification upon the basis
of which the court exercises its discretion. Without such justification, the award is a conclusion
without a premise, its basis being improperly left to speculation and conjecture." The summary
award of counsel's fees made in the appealed judgment must therefore be set aside.

Considering that the decision of the CA does not express any justification other than stating that
attorney's fees were being awarded to the respondents "pursuant to paragraph 11 of Article 2208 of
the New Civil Code," the award by the CA must be set aside; otherwise, attorney's fees would be
turned into a premium on the right to litigate, which is prohibited. Moreover, attorney's fees, being in
the nature of actual damages, should be based on the facts on record and the Court must delineate
the legal reason for such award. 61
WHEREFORE, the Court AFFIRMS the judgment promulgated on March 18, 2003 in C.A.-G.R. CV
No. 53153 with respect to Civil Case No. CEB-12783 subject to the MODIFICATION that the portion
"ordering petitioners to pay the respondents the sum of ₱20,000.00 as and for attorney's fees"
is DELETED; and ORDERS the petitioners to pay the costs of suit.

SO ORDERED.

G.R. No. 207146

SPOUSES LARRY AND ROSARITA WILLIAMS, Petitioners

vs
RAINERO A. ZERDA, Respondent

DECISION

MENDOZA, J.:

This is a petition for review on certiorari assailing the November 28, 2012 Decision  and the April 16,
1

2013 Resolution  of the Court of Appeals (CA) in CA-G.R. CV No. 01115-MIN, which reversed and
2

set aside the September 11, 2006 Decision  and the February 8, 2007 Order  of the Regional Trial
3 4

Court, Branch 30, Surigao City, (RTC) in Civil Case No. 6285, a case for easement of right of way.

The Facts

Respondent Rainero A. Zerda (Zerda) was the owner of a parcel of land, known as Lot No. 1177-
B (dominant estate) of the Surigao Cadastre, situated in Barangay Lipata, Surigao City, with an area
of 16,160 square meters (sq. m.), and covered by Transfer Certificate of Title (TCT) No. T- 18074.
Immediately behind the dominant estate was Lot No. 7298, a swampy mangrove area owned by the
Republic of the Philippines. On both sides were Lot No. 1177-C, registered under the name of
Woodridge Properties, Inc. and Lot No. 1206, in the name of Luis G. Dilag. In front was Lot No.
1201-A owned by petitioner-spouses Larry and Rosarita Williams (Spouses Williams), where the
national highway ran along. 5

On July 28, 2004, Zerda filed a complaint against Spouses Williams for easement of right of way.
The complaint alleged that Zerda's lot was without adequate outlet to a public highway, that it could
not be accessed except by passing through Spouses Williams' property; that the isolation of Zerda's
property was not due to his own acts, as it was the natural consequence of its location; that the right
of way he was claiming was at a point least prejudicial to Spouses Williams' property; and that on
January 27, 2004, Zerda wrote to Spouses Williams formally asking them to provide him with right of
way, for which he was willing to pay its reasonable value or to swap a portion of his property, but
Spouses Williams refused. 6

Spouses Williams countered that the complaint should be dismissed for lack of cause of action
because Zerda failed to establish the requisites for the existence of right of way. They claimed that
sometime in May 2003, they were in negotiation with Agripina Sierra (Sierra), the former owner of
the dominant estate, for its sale to them but the sale did not materialize due to the intervention of
Zerda. Spouses Williams further averred that they undertook visible development projects on their
property as early as May 2003 amounting to ₱6,619,678.00; that the isolation of the dominant estate
was Zerda's fault; and that his requested right of way would cause great damage and prejudice to
them.7

The RTC Ruling

In its September 11, 2006 Decision, the RTC ruled in favor of Spouses Williams. It found that the
isolation of Zerda's lot was due to his own acts because when he bought the said property, he was
aware that Spouses Williams had already started introducing improvements on their own property. It
stated that Spouses Williams were able to prove that while they were in negotiation with Sierra for
the purchase of the dominant estate, Zerda intervened and bought the land himself, knowing full well
that the land was surrounded by other immovables. 8

The RTC also noted that the right of way requested by Zerda was not the shortest distance from the
dominant estate to the public highway. It observed that the shortest distance began "from the
northeastern corner of Lot 1177-B, the dominant estate, following the northern boundary of Lot 1201-
A, the servient estate, and running across the southeastern portion of Lot 1177-C straight up to the
public highway."9

Finally, the RTC granted the claim of Spouses Williams for moral damages and exemplary damages.
The fallo reads:

WHEREFORE, premises considered, let the herein complaint be DISMISSED without

pronouncement as to costs. However, on the compulsory counterclaim, plaintiff is hereby ordered to
pay defendants moral damages in the sum of ₱30,000.00 and exemplary damages of ₱20,000.00.

SO ORDERED. 10

Zerda filed a motion for reconsideration. In its February 8, 2007 Order,  the RTC partially granted
11

the motion by deleting the award of moral damages.

Aggrieved, Zerda appealed before the CA.

The CA Ruling

In its assailed November 28, 2012 Decision, the CA reversed and set aside the ruling of the RTC. It
explained that the isolation of Zerda's property was not due to his own acts, and to deny the right of
way to a purchaser of an enclosed estate simply because of his prior knowledge that the same was
surrounded by immovables would render the law on easements nugatory. "In effect, the purchaser
would only be filling into the shoe[s] of the previous owner of the isolated property in the exercise of
his right to demand an easement of right of way. The new owner did not do anything that would have
caused the deliberate isolation of the property."
12

Further, the CA declared that Zerda was not in bad faith when he intervened in the negotiation for
the sale of the dominant estate between Sierra, the previous owner and Spouses Williams. It noted
that Sierra himself denied knowing Larry Williams, thereby negating the spouses' claim of a
negotiation. The CA added that even if there was a prior negotiation, Sierra could not be deprived of
his right to sell his property to a buyer of his own choosing.
13

The CA also found that the right of way, proposed by Zerda, was the shortest distance to the
national highway and the least prejudicial to the servient estate. It laid emphasis on Spouses
Williams' admission that they had no intention to build houses in the area sought and that the 705.20
sq. m. long pathway would only affect a small portion of their lot which had a total area of 12,200 sq.
m. The dispositive portion of the CA ruling reads:

WHEREFORE, the appeal is GRANTED. The September 11, 2006 Decision and February 8, 2007
Order of the Regional Trial Court, Branch 30, Surigao City is REVERSED and SET ASIDE.

We hereby order (a) appellees to allow the right of passage by the appellant thru their Lot 1201-A;
and (b) appellant to pay private respondent the indemnity therefor to be determined by the trial court.
The case is hereby REMANDED to the trial court for the determination of the proper amount of
indemnity for the easement of right of way under Article 649.

SO ORDERED. 14

Spouses Williams moved for reconsideration, but their motion was denied by the CA in its assailed
resolution, dated April 16, 2013.

Hence, this petition.

ISSUE

WHETHER RESPONDENT ZERDA IS ENTITLED TO AN EASEMENT OF RIGHT OF WAY.

Spouses Williams argue that the respondent caused the isolation of his property because he bought
the lot with notice that it had no access to the national highway and was surrounded by other
immovables; that the respondent was in bad faith because he was aware that they were negotiating
with Sierra over the purchase of the dominant estate when he intervened and bought the property
himself; that the shortest distance from the dominant estate to the public highway began from the
northeastern corner of Lot No. 1177-B (the dominant estate) following the northern boundary of Lot
No. 1201-A, then passing through the southeastern portion of Lot No. 1171-C; and that the right of
way requested by the respondent was not the least prejudicial in view of the developments
introduced by them thereon.

Zerda was ordered by the Court to file his comment on the petition of Spouses Williams. Despite
several opportunities granted to him, he failed to file his comment.  Thus, his right to file a comment
1avvphi1

on the petition for review was deemed waived.

The Court's Ruling

The conferment of the legal easement of right of way is governed by Articles 649 and 650 of the Civil
Code:

ART. 649. The owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables pertaining to other persons and without
adequate outlet to a public highway, is entitled to demand a right of way through the neighboring
estates, after payment of the proper indemnity.

Should this easement be established in such a manner that its use may be continuous for all the
needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the
value of the land occupied and the amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary passage for the cultivation of the estate
surrounded by others and for the gathering of its crops through the servient estate without a
permanent way, the indemnity shall consist in the payment of the damage caused by such
encumbrance.

This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts.

ART. 650. The easement of right of way shall be established at the point least prejudicial to the
servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate
to a public highway may be the shortest.

In summary, an entitlement to the easement of right of way requires that the following requisites
must be met.

1. The dominant estate is surrounded by other immovables and has no adequate outlet to a public
highway (Art. 649, par. 1);

2. There is payment of proper indemnity (Art. 649, par. 1);

3. The isolation is not due to the acts of the proprietor of the dominant estate (Art. 649, last par.);
and

4. The right of way claimed is at the point least prejudicial to the servient estate; and insofar as
consistent with this rule, where the distance from the dominant estate to a public highway may be
the shortest (Art. 650). 15

All the above requisites are present in this case.

As regards the first requisite, there is no dispute that the respondent's property was surrounded by
other immovables owned by different individuals, including Spouses Williams. The isolation was
further shown in the Sketch Plan  prepared by Honorato R. Bisnar, the geodetic engineer deputized
16

by the parties. Moreover, contrary to Spouses Williams' claim that there was a barangay road closest
to the dominant estate, the R TC, during the ocular inspection, observed that "there was no existing
barangay road xxx." 17

The second requisite of payment of indemnity was also complied with by the respondent when he
wrote Spouses Williams on January 27, 2004, formally asking them to provide him with a right of
way, for which he was willing to pay a reasonable value or to swap a portion of his property. 18

Anent the third requisite, the isolation of the dominant estate was not due to the respondent's own
acts. The property he purchased was already surrounded by other immovables leaving him no
adequate ingress or egress to a public highway. Spouses Williams refused to grant a right of way
and averred that the isolation of the dominant estate was attributable to the respondent's own acts.
They pointed out that when the respondent purchased the dominant estate, he knew that Sierra was
in negotiation with them for the sale of the dominant estate, thus, he was in bad faith. Nonetheless, it
cannot be used to defeat the respondent's claim for a right of way. Sierra had every right to sell his
property to anybody. Further, when the respondent bought the dominant estate there could have
been no existing contract of sale yet considering that Spouses Williams and Sierra were still in
negotiation.

Hence, consent, one of the essential requisites for a valid contract, was lacking.
As to the fourth requisite, the Court finds that the right of way sought by the respondent is at the
point least prejudicial to the servient estate and it is the shortest distance to the national highway.
This is evident in the Sketch Plan  showing that the requested right of way was alongside the
19

perimeter of Spouses Williams' property. Moreover, during the ocular inspection, the RTC observed
that the right of way, which the respondent was seeking was alongside a precipice.  Spouses
20

Williams insisted that they intended to build structures on the portion claimed by the respondent, but
at a safe distance from the precipice, not immediately beside it. In addition, the 705.20 sq. m long
pathway would only affect a small portion of the 12,200 sq. m. property of Spouses Williams, and for
which the respondent expressed willingness to pay.

Even assuming that the right of way being claimed by the respondent is not the shortest distance
from the dominant estate to the public highway, it is well-settled that "[t]he criterion of least
prejudice to the servient estate must prevail over the criterion of shortest distance although this is a
matter of judicial appreciation. xxx In other words, where the easement may be established on any
of several tenements surrounding the dominant estate, the one where the way is shortest and will
cause the least damage should be chosen. If having 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."  As previously discussed, the right of way claimed by the respondent is at a point least
21

prejudicial to the servient estate.

WHEREFORE, the petition is DENIED. The November 28, 2012 Decision and the April 16, 2013
Resolution of the Court of Appeals in CAG. R. CV No. 01115-MIN, are AFFIRMED in toto.

SO ORDERED.

G.R. No. L-3598            July 24, 1908

MIGUEL FABIE Y GUTIERREZ, petitioner-appellee,

vs.
JULITA LICHAUCO, AND THE CHILDREN OF FRANCISCO L. ROXAS, respondents-appellants.

Ledesma and Sumulong, and Del-Pan, Ortigas and fisher for appellants.
Rosado, Sanz and Opisso, for appellee.

MAPA, J.:

This is an appeal from a judgment of the Court of Land Registration. The petitioner applied for the
registration of his property, situated at 22 Calle San Jacinto, district of Binondo, Manila, free from all
incumbrances, with the exception of an easement of right of way which he recognizes as existing in
favor of the estates of the respondents Lichauco and Hijos de Roxas, which adjoin the property of
the petitioner on the right and left of its entrance, respectively. In addition to the said easement of
rigth of way the respondents claim that of light, view, and drainage in favor of their respective
properties; said claim was modified in part during the course of the litigation as far as it referred to
Julita Lichauco, who finally reduced her opposition (fol. 138) to the easement of right of way and of
light and view.

In the judgment appealed from it is held that the easement of right of way exits in favor of the
respective properties of Julita Lichauco and Hijos de Roxas, and the latter are further entitled to the
easement of drainage. The claim of both respondents as to other easements was dismissed.
(a) Opposition made by Julita Lichauco. This opponent invokes as the only legal foundation for her
claim the provisions of article 541 of the Civil Code. The language of said provisions is as follows:

The existence of an apparent sign of an easement between of two estates established by the
owner of both shall be considered should one of them be alienated, as a title, in order that
the easement may continue actively and passively, unless, at the time of the division of the
ownership of both estates, the contrary should be expressed in the instrument of alienation
of either of them or if said sign is removed before the execution of the instrument.

It is alleged by Lichauco, as a material fact for applying the above legal provision, that her property,
as well as that of the petitioner, came from Juan Bautista Santa Coloma, the original owner of both
estates, who, at the time of constructing them, establish upon the latter estate, not only an easement
of right of way, which the petitioner admits, but also the easement of light and view which he claims;
and that when both properties were alienated that of petitioner on the 28th of November, 1848, and
that of the respondents (Julita Lichauco) on the 31st of October of the same year, the apparents sign
of the existence of said easement was not removed, nor was it expressed in the instrument of the
alienation of the estates that such easement should be abolished.

The apparent sign of the easements claimed in this case is made to consists of a gallery with
windows through which light is admitted. In her written opposition Lichauco states that the said
gallery is supported on columns erected on the ground belonging to the petitioner, and on the first
page of her brief submitted to this court she again states that the balcony of her building is supported
by uprights erected on land owned by the petitioner.

The parties to the suit having admitted the actual existence of the aforesaid gallery, the question
now to be decided is whether or not it existed when the ownership of the two estates of Juan
Bautista Santa Coloma was divided by the alienation of the one which now belongs to the
respondent (Lichauco) and which was the first sold on October 31, 1848.

The instrument of sale (fol. 78) presented by said respondents contains a description of said house
such as it was at that time and after setting forth the boundaries thereof, state that the house is built
of stone and mortar, and that it is erected upon the lot of the owner, and has a frontage of twenty
and one fourth varas and three and a half inches, with a depth of thirty one and one fourth varas.
Converting the varas into meters and disregarding the centimeters, it results that said house had a
frontage of 16 meters, equivalent to that twenty and one fourth varas and three and a half inches
stated in the instrument when it was alienated for the first time in October, 1848. Twenty years
thereafter — that is, on the 13th of September, 1869 — the house was surveyed and appraised by
Achitect Luciano Oliver at the request of the person who then owned it, and in the certificate issued
by the said architect, (fol. 94) it is set forth that the house measures 16 meters on the front facing
Calle San Jacinto which confirms and corroborates the measurement stated in the aforesaid
instrument. Now then, according to the plan on folio 137, Exhibit I of the respondent (Lichauco), the
house was now a frontage of 18 meters and 60 centimeters, of which 16 meters and 60 centimeters
correspond to the main part of the same, and 1 meter and 90 centimeters to the gallery in question.
It results, therefore, that at the present day, the house has nearly 2 meters more frontage than when
it was alienated by Santa Coloma, the original owner thereof, or rather by the executors of his estate
on the 31st of October, 1848.

According to this it is evident that the frontline of the house was increased by about 2 meters after
the same was sold by Santa Coloma and it also seems clear to us that it is the gallery mentioned
above which constitutes the increase, both because it measures 1 meter and 90 centimeters, which,
with a difference of a few centimeters, exactly represents such excess, and because it has neither
been alleged nor claimed by the said respondent, that the rest which froms the main part of the
house has suffered and alteration in its frontage since the year 1848.

There is furthermore another detail in support of said conclusion. As stated by the respondent, the
gallery is supported by columns erected on the lot of the petitioner, so that it is not merely a body
projecting over the said lot without materially resting thereon but a construction erect and having
foundations in the lot of the petitioner inasmuch as the columns that support the said gallery are
planted therein. Therefore, at the present day the house is erected partly on the land belonging to
the owner and partly, the gallery, over a lot belonging to another; that is, over that of the petitioner.
When it was sold in October, 1848, no portion of the house occupied the lot last mentioned, but the
entire building was erected over a lot belonging to the owner as set forth in the instrument of sale.

To the foregoing considerations the following may be added in conclusion: In view of the fact that the
two buildings — namely, that of the petitioner and that of the respondent — originally belonged to
the same owner, and on the supposition that the gallery did already exist and that as stated, it is
supported on columns erected in the lot now owned by the petitioner, it is not an easy matter to
explain how it was that when the ownership of the two properties was separated the house of the
respondent, of which the said gallery forms a part, was sold to one person while the lot over which
the said gallery is erected or in which its columns are imbedded was sold to a different person. It
would be a logical and natural thing to suppose that in the sale of the gallery the land occupied by
the same would have been included in order to avoid the division of the ownership of the ground and
the superficies, that it is, the lot and that which is erected upon it. The necessity for such division
does not appear nor can any reasonable justification therefore be discovered in the present case.

On the other hand, in none of the numerous papers presented by the respondent is their any
mentioned made of the gallery in question, notwithstanding the fact that in some of them the house
of the respondent (Lichauco) is minutely described and it does not seem that this is due to mere
carelessness or inadvertence, or that it was considered unnecessary to mention such gallery,
inasmuch as deliberate, careful, and repeated mention is made of the other gallery on the side of the
house facing the street, as may be seen from several of the other documents above alluded to,
among which are the certificate issued by architect Luciano Oliver, on September 13, 1869, (fol. 94)
the instrument of sale executed in favor of Manuel Gonzalez Junquito (fol. 104), and the mortgage
deed of the same date in favor of the Obras Pias (fol. 116). In each of the said documents the
statement is made that the house has a corridor supported on columns on Calle San Jacinto, while
nothing is said, even incidentally, regarding the other corridor or gallery that now exists over the lot
of the petitioner. In our opinion there is no reason why in the description of the house has made by
various persons at different times, mentions should always have been made of only one of the
galleries, the other been entirely ignored, if both had really existed on the respective dates of the
documents above referred to.

And it is useless to say, as argued by the respondent in her brief, that Architect Oliver's certificate,
on which the description made in the subsequent documents was taken, contained but a superficial
description of the property without details of its four sides. For said reason she states that the fact
that no mention is made of the balcony or gallery in question is of no importance, as the said
certificate deals with the value of the property only, it being well known that such a work is performed
taking into account all the details and circumstances which may increase or decrease the value of
the same. Hence, the respondents goes on to sale, that mention was made, by said architect of the
veranda facing the street for the purpose of distinguishing between the one built on private land and
the one which built over land belonging to the city. For the very same reason she should have
mentioned also the veranda built over the lot of the petitioner, if it had been in existence specially
has the value erected on land belonging to the owner is not the same as that which is constructed on
land owned by another person. The omission of this detail in such a document wherein in order to
omit nothing mention is even made of a well and stable both of which are unimportant portions of a
building; such an omission, we say, added to the reasons given above, induces us to come to the
conclusion, as a result of the documentary evidence adduced at the trial, that the gallery in question
did not exist at the time when the house of the respondent was alienated by its original owner, Santa
Coloma, in October, 1848.

This conclusion is not weakened by the expert testimony offered by the respondent, the only
testimony which she introduced aside from the documentary evidence already mentioned. As the
judgment appealed from properly states, even if the forty or fifty years of existence of the house
referred to, according to the unanimous reckoning of the experts offered by said party is accepted,
yet, we do not reach the year 1848, more than fifty-seven years back, when the separation of the
ownership of said house and that of the petitioner took place; such date constitutes the essential and
culminating point of the question. Moreover, it does not appear that said experts, who, among, other
things, base their opinion on the conditions of the building and its materials, have made a careful
and sufficient examination and survey of the latter. This is evidenced by the fact that one of them,
Enrique Lafuente, states, on folio 146, that the columns which support the gallery facing the street
are built of stone, and that those of the other gallery over the lot of petitioner are of wood; while
according to another, Ramon Herrera Davilla, (fol. 152) both sets of columns are built of stone, and
the third, Jose Perez Siguenza (fol. 157), affirms that they are all about of wood, those facing the
street as well as those embedded in the land of the petitioner.

Furthermore, all the experts discuss and reason, and render their opinion as if the house was in the
same condition as when sold by Santa Coloma in 1848, when it seems certain and unquestionable
that long after the said year it underwent, or must have undergone, very important repairs of an
essential nature. This is shown by the letter written by Manuel Gonzalez Junquito, who owned it the
time, to his attorney in fact under date if March 25, 1889, and was incorporated in the instrument of
sale executed by said attorney in fact of the owner in favor of the respondent. In said letter Junquito
states that the house was converted into a heap of ruins, and that (undoubtedly for the said
reason) during the three years it had not yielded him a single cent; for this reason he prayed his said
attorney to see the way to sell in by all means at the best price obtainable ... it was thus that the said
house in which, as stated by Junquito on the same letter, had cost him P15,000 was sold to the
respondent for only eight thousand. If in 1889 the house was a heap of ruins, it seems to us to
hazardous to certify solely in view of its present condition, after under going repairs or having been
practically rebuilt, the real condition in which it was in 1848 — that is, forty years before it became
ruined — specially seems, as the petitioners expert properly states, in the repair or rebuilding of the
property old or used materials may have been employed which would give it the appearance of
being older than it actual use.

The respondent states in her brief, as though intending to prove the great antiquity of the gallery in
question, that, notwithstanding the fact that the petitioner acquired his property before she acquired
the adjoining building, he has been able to testify that the said gallery was built by Junita Lichauco or
by her predecessor after he had purchased his property, nor has it been proven that since that time
or at any time previous thereto there had been any disagreement between the owners of the two
properties of account of the gallery in question. Such allegation absolutely lacks foundation, (1)
because it is not true that the petitioner acquired his property prior the time when Junita Lichauco
acquired hers, but entirely on the contrary seems the petitioner purchased his property on the 9th of
May, 1894, and the respondent acquired hers on the 25th of October, 1889, that is, five years
previously; and (2) because the burden is not on the petitioner to prove on what time the gallery in
controversy was constructed inasmuch as he limits himself to sustaining and defending the freedom
of his property, denying the easement of light and view of the respondent pretends to impose over it.
It is a settled doctrine of law that a property is assumed to be free from all incumbrance unless the
contrary is proved. (Decisions of the Supreme Court of Spain of April 7, 1864, and December 13,
1865.) The respondent who claims the said easement, basing her claim on the provision of article
541 of the Civil Code, is obliged to prove the aforementioned gallery, in which the apparent sign of
the easement is made to consist in the present case, existed at the time the ownership of her
property and that of the petitioner were separated, in October, 1848. And inasmuch as this issue has
not been proved, the claim of the respondents as to the easements of the light and view which the
petitioner does not admit, must of necessity be dismissed.

(b) Opposition of heirs of Francisco L. Roxas. The real terms of this opposition do not appear well
defined. As the Court of Land Registration says in the judgment appeal from, when this party
appeared at the trial stated (fol. 71) that it had no opposition to offer and only desired that the matter
of the easement of right of way, acknowledged by the petitioner, be clearly established, and that the
other rights of easement which their property holds over the former be respected, not specifying,
however, neither at the time or during the course of the proceedings as to which of said easements
they referred when appealing. Hence the question raised by these respondents do not appear as
clearly determined.

In the absence of due specification of the said points, and inferring in only from the language of the
agreement submitted to the parties to the suit, the Court of Land Registration assumed that beyond
the acknowledged easement of the right of way, the respondents claimed those of light, view, and
drainage, and on such supposition entered judgment in connection with said easements only. Upon
moving for a new hearing the respondents alleged as a foundation therefore, as stated in the
overruling thereof (p. 9 of the bill of exceptions), that the easement with reference to balcony had not
been acknowledged, and now in setting forth their injuries before this court they speak to
the eaves ...

Admitting, the sake of argument, that all of the above questions were duly set up and discussed in
the court below, the fact is that in the judgment appealed from no other easements than those with
reference to right of way and drainage from the roof have been allowed in favor of the property of the
respondents; therefore, the easements of light, view, and balconies remain in dispute in the present
instance. The easement with reference to eaves mentioned also in the brief of the respondents
should, in our opinion, be discarded inasmuch as it is included in this case in the easements of
drainage from the roof acknowledged in the judgment appealed from. (p. 7 of the bill of exceptions).

The Court of Land Registration in order to dismiss the opposition with reference to the easement of
light and view bases its decision on the fact that, the same being negative, according to article 533
of the Civil Code, because the owner of the servient estate is prohibited to do something which he
could lawfully do if the easement did not exist, that time of possession for prescription (and it is a
matter of prescription for the reason that respondents hold no title) should begin to run, not from the
date of the existence of the windows or balconies, but from the day when the owner of the dominant
estate, by means of a formal act, might have prohibited the owner of the servient estate to do
something which he could properly execute if the easement did not exist; this was never carried out
by the opponents or by their principals as agreed to by the parties at the hearing.

In rebuttal of this portion of the judgment the respondents state in their brief as follows:

We agree with the trial court that as a general rule the easement with reference to view is a
negative one ...; but we understand that there are cases in which the easements is meant is
positive because it imposes on the owner of the servient estate the obligation to allow the
owner of the dominant estate to do on the property of the former something which the latter
could not lawfully do if the easement did not exist, ... such as happens in the present case in
which the windows have a balcony projecting over the lot of the petitioner. In the case of bar
there exists the positive fact of windows with projecting balconies opening over the land of
the servient estate which is not a right inherent to the dominion of the owner of the dominant
 estate, but a real invasion of the right of another, a positive act which limits the dominion of
the owner of the servient estate which, constituting easement, imposes on him the obligation
to permit with balconies projecting over his estate.

According to this no question is raised by the respondents as to the legal nature of the easement of
view (in their brief the easement of light is ignored) which they acknowledge for the reason that, in
general, it is a negative one although in their opinion there are exceptions where it acquires the
nature of a positive easement, among them, when as in the present case, view is obtained by means
of windows with balconies projecting over the adjoining estate. On page 4 of their brief they state
that the latter facts was agreed to by the parties, which is tacitly contradicted by the petitioner when
denying, on page 14 of his brief, that the word balconies was used in the agreement as synonymous
with projecting windows and differing from windows, for although, according to the said agreement,
they overlook the lot of the petitioner, they are not, however, over the same, nor is the contrary
claimed in connection therewith by the representative of the respondents.

In reference to the above question the said agreement of facts reads as follows:

(1) That house No. 114, Calle San Jacinto, district of Binondo, this city, owned by the
children of Francisco L. Roxas, adjoining the property of the petitioner, underwent alteration
in the early part of the year 1882, and ever since that time it exists as it appears now with
windows and views overlooking the lot of the petitioner, with balconies and eaves from which
rainfall drops on the aforesaid lot.

It seems evident under the terms of this agreement, that the house of the respondents has
balconies, it being immaterial for our point of view that the word balconies be taken as synonymous
with widows or projections, since whether it be the one or the other the truth is that the agreement
does not state that such balconies are over the lot of the petitioner or overlooking over it, as claimed
by the respondents. Neither would this follow from the mere fact that the said balconies jut out,
because the projecting parts of a building may be constructed, and as a matter of fact they are
generally constructed, over the area of their own ground without invading the limits of the adjoining
length. What actually falls over the estate of the petitioner according to the agreement is the water
dropping from the projecting eaves of the respondents' house, which is precisely the fact that has
originated the easement of drainage from the roof acknowledged in favor of said house; projecting
eaves, thus the agreement reads, from which part of each water falls on said lot. Notwithstanding the
fact that word eaves, in the language of the agreement, is preceded by the word balconies, upon
both being united by the copulative conjunction and, it becomes evident that words in italics do not
refer nor could they refer to the balconies for the simple reason that their object is not to shed the
water, a thing which, on the contrary, is done by the eaves.

And that it is the water and not the balconies of the house of the respondents which falls over or
overlooks the lot of the petitioner, is further evidenced by the language of the other clauses of the
agreement in which the ideas are expressed with precision, from which it may be seen that the
proposition over is always in relation to the fall of the water and not to the balconies. Thus, for
example, clause 2 reads "that it does not appear if the construction of said windows, balconies, and
projecting eaves, as well as that part of the water from the roof of the said house, fall on the lot now
owned by Don Miguel Fabie ...." work that may obstruct the light, remove the windows or balconies
and projecting eaves of the said house which now belongs to the children of Francisco L. Roxas, or
prevent a portion of the water from the roof of the same from falling on the lot of Miguel Fabie...,
neither has their been on the part of the said Fabie... any act to obstruct said light or windows,
preventing the continuance of the balconies and projecting eaves, or that part of the water from the
roof of the house falling ... on his lot."
Therefore, it does not appear from the agreement which is the only evidence we have before us, no
other having been offered at the hearing, the respondents has balconies over the land of the
petitioner; and as it is, since it has been positively shown that the said balconies exceed the limit of
the lot owned by the former, nor less that they invade the atmospheric area of the lot belonging to
the latter, it follows that, even in accordance with the theory maintained by the respondents with
which on account of its lack of basis, we consider it unnecessary to deal herein as to its other
aspect, the easement of view, which might result in such case from the existence of the balconies
alluded to, would be negative and not a positive one, because the erection of the same would not
constitute, according to their own statement, an invasion of the right of another, but the lawful
exercise of the right inherent to the dominion of the respondents to construct within their own lot.
And as said easement is negative, it cannot have prescribed in favor of the property of the
respondents in the absence of any act of opposition, according to the agreement, by which they or
their principals would have prohibited the petitioner or his principals to do any work which obstruct
the balconies in question, inasmuch as said act of opposition is what constitutes the necessary and
indispensable point of departure for computing the time required by law for the prescription of
negative easements (Art. 538, Civil Code).

After the foregoing it is not necessary to say anything further to show the impropriety of the claim of
the respondents in connection with the other easement of balconies (projiciendi). They claim this
easement on the supposition that the balconies of the house are or look over the lot of the petitioner;
therefore, considering that this fact has not been proven as shown therefor, said pretension fails and
cannot prosper in any way. It is unnecessary to discuss the questions of law to which said fact might
give rise had it been duly proven at the hearing.

For the reason above set forth, the judgment appealed from is affirmed in all its parts with the costs
of this instance against the appellants. So ordered.

G.R. No. 911. March 12, 1903. ]

MAXIMO CORTES, Plaintiff-Appellant, v. JOSE PALANCA YU-TIBO, Defendant-

Appellee.

Felipe G. Calderon for Appellant.

Simplicio del Rosario for Appellee.

SYLLABUS

1. REAL PROPERTY; EASEMENTS; LIGHT AND AIR. — The easement-of light in the case
of windows opened in one’s own wall is negative, and can not be acquired by
prescription except where sufficient time of possession has elapsed after the owner of
the dominant estate, by a formal act, has prohibited the owner of the servient estate
from doing something which would be lawful but for the easement.

2. ID.; ID.; ID. . — Different doctrines are applicable to the acquisition of easements in
favor of windows opened in one’s own ,wall and of those opened in a party wall. In the
latter case the express or implied consent of the part owner affords a basis for the
acquisition of a prescriptive title.
 3. ID.; ID.; ID. — Different doctrines are applicable to the acquisition of easements in
favor of windows opened in one’s own wall and those opened in the wall of a neighbor;
in the latter case prescription commences to run from the date of the opening of the
windows and ripens into title when the specified time was elapsed without opposition on
the part of the owner of the wall.

4. ID.; ID.; ID. — The judgment of the supreme court of Spain of February 7, 1896, is
distinguishable on the ground that the easement there in question, created by the
owner of both dominant and servient estates, was positive because it consisted of the
active enjoyment of the light as opposed to mere tolerance on the part of an adjoining
owner of windows opened in one’s own wall.

5. ID.; ID.; ID. — With reference to the law of easements of light and air there is no
distinction to be made between ordinance windows and others.

6. ID.; ID.; ID. — A watershed protecting a window from sun and rain is a mere
accessory thereto and follows the condition of the window itself.

7. ID.; ID.; VIEW. — Article 582 of the Civil Code, pertaining to easement of view from
windows, balconies, or similar projections, has no application to a protecting shed over
a window.

8. ID.; ID.; ID. — Article 585 of the Civil Code is applicable only to cases in which an
easement has been acquired and can not be cited in support of a contention that an
easement exists.

9. PLEADING AND PRACTICE; APPEAL; VALUE IN CONTROVERSY. — Where the

litigation involves an easement in favor of one certain piece of property worth less than
$25,000, the Supreme Court of the United States can have no jurisdiction on appeal,
since the easement alone can not be worth more than the entire property.

10. ID., ID., ID. — Where the value of the property in controversy does not equal
$25,000, the fact that plaintiff has similar claims to other property not in controversy
whose value exceeds $20,000 can not be considered in the allowance of an appeal to
the Supreme Court of the United States.

DECISION

MAPA, J. :

This suit was brought to obtain an injunction, in accordance with the provisions of
sections 162 to 172 of the Code of Civil Procedure, for the purpose of restraining the
continuation of certain buildings commenced by the defendant. The court below issued
a preliminary injunction during the trial, but, upon rendering final judgment, dissolved
the injunction, with the costs against the plaintiff. The latter excepted to this judgment
and assigns error.
In the trial the following facts were admitted without contradiction: chanrob1es virtual 1aw library

(1) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff, has
certain windows therein, through which it receives light and air, said windows opening
on the adjacent house, No. 63 of the same street; (2) that these windows have been in
existence since the year 1843, and (3) that the defendant, the tenant of the said house
No. 63, has commenced certain work with the view to raising the roof of the house in
such a manner that one-half of one of the windows in said house No. 65 has been
covered, thus depriving the building of a large part of the air and light formerly received
through the window. In its decision the court below practically finds the preceding facts,
and further finds that the plaintiff has not proven that he has, by any formal act,
prohibited the owner of house No. 63 from making improvements of any kind therein at
all time prior to the complaint.

The contention of the plaintiff is that be the constant and uninterrupted use of the
windows referred to above during a period of fifty-nine years he acquired by
prescription an easement of light in favor of the house No. 65, and as a servitude upon
house No. 63, and, consequently, has acquired the right to restrain the making of any
improvements in the latter house which might in an manner be prejudicial to the
enjoyment of the said easement. He contends that the easement of light is positive;
and that therefore the period of possession for the purposes of the acquisition of a
prescriptive title is to begin from the date on which the enjoyment of the same
commenced, or, in other words, applying the doctrine to this case, from the time that
said windows were opened with the knowledge of the owner of the house No. 63, and
without opposition on his part.

The defendant, on the contrary, contends that the easement is negative, and that
therefore the time for the prescriptive acquisition thereof must begin from the date on
which the owner of the dominant estate may have prohibited, by a formal act, the over
of the servient estate from doing something which would be lawful but for the existence
of the easement.

The court below in its decision held that the easement of light is negative, and this
ruling has been assigned by the plaintiff as error to be corrected by this court.

A building may receive light in various manners in the enjoyment of an easement of

light, because the openings through which the light penetrates may be made in one’s
own wall, in the wall of one’s neighbor, or in a party wall. The legal doctrine applicable
in either one of these case is different, owing to the fact that, although anyone may
open windows in his own wall, no one has a right to do so in the wall of another without
the consent of the owner, and it is also necessary, in accordance with article 580 of the
Civil Code, to obtain the consent of the other coowner when the opening is to be made
in a party wall.

This suit deals with the first case; that is, windows opened in a wall belonging to the
wife of the plaintiff, and it is this phase of the easement which it is necessary to
consider in this opinion.

When a person opens windows in his own building does nothing more than exercise an
act of ownership inherent in the right of property, which, under article 348 of the Civil
Code, empowers him to deal with his property as he may see fit, with no limitations
other than those established by law. By reason of the fact that such an act is performed
wholly on a thing which is wholly the property of the one opening the window, it does
not in itself establish any easement, because the property is used by its owner in the
exercise of dominion, and, not as the exercise of an easement: "For a man," says law
13, title 31, third partida, "should not use that which belongs to him as if it were
service only, but as his own property." Coexistent with this right is the right of the
owner of the adjacent property to cover up such windows by building on his own land or
raising a wall contiguously to the wall in which the windows are opened (art. 581 of the
same code), by virtue of the reciprocity of rights which should exist between abutting
owners, and which would cease to exist if one could do what he pleased on his property
and the other could not do the same on his. Hence it is that the use of the windows
opened in a wall on one’s own property, in the absence of some covenant or express
agreement to the contrary, is regarded as an act of mere tolerance on the part of the
owner of the abutting property judgments of the supreme court of Spain of the 17th of
May, 1876; 10th of May, 1884; 30th of May, 1890), and does not create any right to
maintain the windows to the prejudice of the latter (judgment of the supreme court of
Spain of the 13th of June, 1877). The mere toleration of such an act does not imply on
the part of the abutting owner a waiver of his right to freely build upon his land as he
may see fit, nor does it avail the owner of windows for the effects of possession
according to article 1942 of the Civil code, because it is a mere possession at will. From
all this it follows that the easement of light with respect to the openings made in one’s
own edifice does not consist precisely in the fact of opening them or using them,
inasmuch as they may be covered up at any time by the owner of the abutting
property, and, as Manresa says in his commentaries on the Civil Code, "there is true
easement as long as the right to impede its use exists." The easement really consists in
prohibiting or restraining the adjacent owner from doing anything which may tend to
cut off or interrupt the light; in short, it is limited to the obligation of not impeding the
light (ne luminibus officiatur). The latter coincides in its effects, from this point of view,
with the obligation of refraining from increasing the height of a building (altius non
tollendi), which, although it constitutes a special easement, has for its object, at times,
the prevention of any interruption of the light enjoyed by the adjacent owner.

It will be readily observed that the owner of the servient estate subject to such an
easement is under no obligation whatsoever to allow anything to be done on his
tenement, nor to do anything there himself, but is simply restrained from doing
anything thereon which may tend to cut off the light from the dominant estate, which
he would undoubtedly be entitled to do were it not for the existence of the easement.
If, then, the first condition is that which is peculiar to positive easements, and the
second condition that which is peculiar to negative easements, according to the
definition of article 533 of the Civil Code, it is our opinion that the easement of lights in
the case of windows opened in one’s own wall is of a negative character, and, as such,
can not be acquired by prescription under article 538 of the Civil Code, except by
counting the time of possession from the date on which the owner of the dominant
estate may, by a formal act, have prohibited the owner of the servient estate from
doing something which it would be lawful for him to do were it not for the easement.

The supreme court of Spain, in its decisions upon this subject, has established these
principles by a long line of cases. In its judgment of May 14, 1861, the said court holds
that "the prescription of the easement of lights does not take place unless there has
been some act of opposition on the part of the person attempting to acquire such a
right against the person attempting to obstruct its enjoyment." "The easements of light
and view," says the judgment of March 6, 1875, "because they are of a negative
character, can not be acquired by a prescriptive title, even if continuous, or although
they may have been used for more than twenty-eight years, if the indispensable
requisite for prescription is absent, which is the prohibition on the one part, and the
consent on the other, of the freedom of the tenement which it is sought to charge with
the easement." In its judgment of June 13, 1877, it is also held that use does not
confer the right to maintain lateral openings or windows in one’s own wall to the
prejudice of the owner of the adjacent tenement, who, being entitled to make use of
the soil and of the space above it, may, without restriction, build on his line or increase
the height of existing buildings, unless he has been" forbidden to increase the height of
his buildings and to thus cut off the light,’’ and such prohibition has been consented to
and the time fixed by law subsequently expired. The court also holds that it is error to
give the mere existence or use of windows in a wall standing wholly on the land of one
proprietor the creative force of a true easement, although they may have existed from
time immemorial. Finally, the judgments of the 12th of November, 1889, and the 31st
of day, 1890, hold that "as this supreme court has decided, openings made in walls
standing wholly on the land of one proprietor and which overlook the land of another
exist by mere tolerance in the absence of an agreement to the contrary, and can not be
acquired by prescription, except by computing the time from the execution of some act
of possession which tends to deprive the owner of the tenement affected of the right to
build thereon." Various other judgments might be cited, but we consider that those
above mentioned are sufficient to demonstrate the uniformity of the decisions upon this
point. It is true that the supreme court of Spain, in its decisions of February and May 5,
1896, has classified as positive easements of lights which were the object of the suits in
which these decisions were rendered in cassation, and from these it might be believed
as first glance that the former holdings of the supreme court upon this subject had
been overruled. But this is not so, as a matter of fact, inasmuch as there is no conflict
between these decisions and the former decisions above cited.

In the first of the suits referred to, the question turned upon two houses which had
formerly belonged to the same owner, who established a service of light on one of them
for the benefit of the other. These properties were subsequently conveyed to the
different persons, but at the time of the separation of the property nothing was said as
to the discontinuance of the easement, nor were the windows which constituted the
visible sign thereof removed. The new owner of the house subject to the easement
endeavored to free it from the incumbrance, notwithstanding the fact that the
easement had been in existence for thirty-five years, and alleged that the owner of the
dominant estate had not performed any act of opposition which might serve as a
starting point for the acquisition of a prescriptive title. The supreme court, in deciding
this case, on the 7th of February, 1896, held that the easement in this particular case
was positive, because it consisted in the active enjoyment of the light. This doctrine is
doubtless based upon article 541 of the Code, which is of the following tenor: "The
existence of apparent sign of an easement between two tenements, established by the
owner of both of them, shall be considered, should be expressed in the deed of
conveyance of either of them, or such sign is taken away before the execution of such
deed."cralaw virtua1aw library

The word "active" used in the decision quoted in classifying the particular enjoyment of
light referred to therein, presupposes on the part of the owner of the dominant estate a
right to such enjoyment arising, in the particular case passed upon by that decision,
from the voluntary act of the original owner of the two houses, by which he imposed
upon one of them an easement for the benefit of the other. It is well known that
easements are established, among other cases, by the will of the owners. (Article 536
of the Code.) It was an act which was, in fact, respected and acquiesced in by the new
owner of the servient estate, since he purchased it without making any stipulation
against the easement existing thereon, but on the contrary, acquiesced in the
continuance of the apparent sign thereof. As is stated in the decision itself, "It is a
principle of law that upon a division of a tenement among various persons — in the
absence of any mention in the contract of a mode of enjoyment different from that to
which the former owner was accustomed — such easements as may be necessary for
the continuation of such enjoyment are understood to subsist." It will be seen, then,
that the phrase "active enjoyment" involves an idea directly opposed to the enjoyment"
which is result of a mere tolerance on the part of the adjacent owner, and which, as it
is not based upon an absolute, enforceable right, may be considered as of a merely
passive character. Therefore, the decision in question is not in conflict with the former
rulings of the supreme court of Spain upon the subject, inasmuch as it deals with an
easement of light established by the owner of the servient estate, and which continued
in force after the estate was sold, in accordance with the special provisions of article
541 of the Civil Code.

Nor is the other decision cited, on May 5, 1896, in conflict with the doctrine above laid
down, because it refers to windows opened in a party wall, and not in a wall the sole
and exclusive property of the owner of the dominant tenement, as in the cases referred
to by the other decisions, and as in the case at bar. The reason for the difference of the
doctrine in the one and the other case is that no part owner can, without the consent of
the other, make in a party wall a window or opening of any kind, as provided by article
580 of the Civil Code. The very fact of making such openings in such a wall might,
therefore, be the basis for the acquisition of a prescriptive title without the necessity of
any active opposition, because it always presupposes the express or implied consent of
the other part owner of the wall, which consent, in turn, implies the voluntary waiver of
the right of such part owner to oppose the making of such openings or windows in such
a wall.

With respect to the provisions of law 15, title 31, third partida, which the appellant
largely relied upon in his oral argument before the court, far from being contrary to it,
is entirely in accord with the doctrine of the decisions above referred to. This law
provides that "if anyone shall open a window in the wall of his neighbor, through which
the light enters his house," by this sole fact he shall acquire a prescriptive title to the
easement of light, if the time fixed in the same law (ten years as to those in the
country and twenty years as to absentees) expires without opposition on the part of the
owner of the wall; but, with the exception of this case, that is to say, when the windows
are not opened in the wall of the neighbor, the law referred to requires as a condition to
the commencement of the running of the time for the prescriptive acquisition of the
easement, that "the neighbor be prohibited from raising his house, and from thereby
interrupting the light." That is to say, he must be prohibited from exercising his right to
build upon his land, and cover the window of the other. This prohibition, if consented
to, serves as a starting point for the prescriptive acquisition of the easement. It is also
an indispensable requisite, therefore, in accordance with the law of the partidas, above
mentioned, that some act of opposition be performed, in order that an easement may
be acquired with respect to openings made in one’s own wall.

For a proper understanding of this doctrine, it is well to hold in mind that the Code of
the partidas, as well as the Roman law, clearly distinguishes two classes of easements
with respect to the lights of houses, as may be seen in law" of title 31, of the third
partida. One of them consists in "the right to pierce the wall of one’s neighbor to open a
window through which the light may enter one’s house" (equivalent to the so-called
easement of luminum of the Romans); the other is "the easement which one house
enjoys over another, whereby the latter can not at any time be raised to a greater
height than it had at the time the easement was established, to the end that the light
be not interrupted." (Ne luminibus officiator.) For the prescriptive acquisition of the
former the time must begin, as we have seen, from the opening of the window in the
neighbor’s wall. As to the second, the time commences from the date on which he was
"prevented from raising his house." Some of the judgments which establish the doctrine
above laid down were rendered by the supreme court of Spain interpreting and applying
the above-cited law 15, title 31, partida 3, and therefore they can not in any sense be
regarded as antagonistic to the law itself.

The question as to whether the windows of the house of the plaintiff are, or are not, so-
called regulation windows, we consider of but little importance in this case, both
because the authority of the decisions of the law of the partidas, above cited, refers to
all kinds of windows, and not to regulation windows solely, and because the record does
not disclose, nor has the appellant even stated, the requirements as to such regulation
windows under the law in operation prior to the Civil Code, which he asserts should be
applied and on which he relies to demonstrate that he has acquired by prescription the
easement in question. With respect to the watershed which, according to the plaintiff,
exists over the window in question, the record does not disclose that the same has
been destroyed by the defendant. He expressly denies it on page 7 of his brief, and
affirms (p. 8) that the tenant of the appellant’s property himself removed it, by reason
of the notice served on him; on the other hand, the judgment of the court below
contains no findings with respect to this fact, nor does it disclose the former existence
of any such watershed. Furthermore, the opinion which we have formed with respect to
this matter, in so far as we are able to understand the merits of the case, is that this
shed was a mere accessory of the window, apparently having no other purpose than
that of protecting it against the inclemency of the weather; this being so, we are of
opinion that it should follow the condition of the window itself, in accordance with the
legal maxim that the accessory always follows the principal. The appellant contends
that the shed should be regarded as a projection within the provisions of article 582 of
the Code; but it is sufficient to observe that this article speaks of windows with direct
views, balconies, or similar projections, in order to conclude that the article does not
refer to such watersheds, which have not the slightest degree of similarity to balconies,
nor are they constructed for the purpose of obtaining the view — this being the subject-
matter which this article expressly purports to control — inasmuch as such sheds have
rather the effect of limiting the scope of the view than of increasing it.

The fact that the defendant did not cover the windows of the other house adjacent to
No. 63 at the time he covered the windows of the appellant, a fact which the latter
adduces as proof of the recognition on the part of the former of the prescriptive
acquisition of the easement of the light in favor of that house, which, according to his
statement, is under precisely the same conditions as the house of the plaintiff, does not
necessarily imply, in our opinion, any such recognition, as it might be the result of a
mere tolerance on the part of the defendant. Certainly the fact of his tolerating, the use
by the owner of that house of such windows, supposing the facts to be as stated, does
not carry with it as a result an obligation to exercise the same forbearance with respect
to the plaintiff; but whatever may be the legal status of the windows in the house
referred to with respect to the house No. 63, we can not pass upon the point, nor can
we form suppositions concerning the matter for the purpose of drawing conclusions of
any kind therefrom to support our opinion, for the simple reason that it is not a point at
issue in this case, and more especially because the defendant not only denied the
existence of the alleged easement of light in favor of-the house referred to, but, on the
contrary, he affirms that demand has been made that the windows in said house be
closed, as may be seen on page 8 of his brief.

The point discussed in this trial being whether the plaintiff has acquired the easement
which he seeks to enforce over the house of which the defendant is tenant, it is evident
that the provisions of article 585 of the Civil Code can not be involved without taking
for granted the very point at issue. This article refers to cases in which, under any title,
the right has been acquired to have direct views, balconies, or belvederes over
contiguous property. The existence of such a right being the very point at issue, the
supposition upon which the article rests is lacking, and it is therefore not in point.

As a result of the opinion above expressed, we hold: chanrob1es virtual 1aw library

1. That the easement of light which is the object of this litigation is of a negative
character, and therefore pertains to the class which can not be acquired by prescription
as provided by article 638 of the Civil Code, except by counting the time of possession
from the date on which the owner of the dominant estate has, in a formal manner,
forbidden the owner of the servient estate to do an act which could be lawful were it
not for the easement.

2. That, in consequence thereof, the plaintiff, not having executed any formal act of
opposition to the right of the owner of house No. 63 Calle Rosario (of which the
defendant is tenant), to make therein improvements which might obstruct the light of
house No. 65 of the same street, the property of the wife of the appellant, at any time
prior to the complaint, as found by the court below in the judgment assigned as error,
he has not acquired, nor could he acquire by prescription, such easement of light, no
matter how long a time might have elapsed since the windows were opened in the wall
of the said house No. 65, because the period which the law demands for such
prescriptive acquisition could not have commenced to run, the act with which it must
necessarily commence not having been performed.

Therefore, we affirm the judgment of the court below and condemn the appellant to the
payment of all damages caused to the plaintiff, and to the payment of the court of this
appeal. So ordered.

Arellano, C.J., Cooper, Willard and Ladd, JJ., concur.

Torres, J., did not sit in this case.

ON MOTION FOR A REHEARING.

The plaintiff asks for a rehearing of the decision of the court of March 12th last upon
the ground that the same contains error: chanrob1es virtual 1aw library

First, because the decision holds that the window opened in the plaintiff’s own wall and
the watershed do not constitute the continuous and apparent easements of prospect,
light, and ventilation, or jus projitiendi and jus spillitiendi, this ruling being in opposition
to the provisions of laws 12, 14, and 15, title 31, third partida, and articles 530, 532,
533, 537, 538, 582, and 585 of the Civil Code.

This allegation is entirely unfounded, inasmuch as the decision of the court contains no
declaration as to whether the windows and watershed do or do not constitute
continuous and apparent easements, or jus projitiendi and jus spillitiendi. These
questions were not drawn into issue by the complaint, and therefore any decision
thereon one day or the other would have been mere dicta. What the court did hold was
that the easement of light, when it is sought to claim such benefit from a window
opened in one’s own wall, as does the appellant with respect to the tenement of the
defendant, belongs to the class of negative easements, and that on that account the
time of possession for prescriptive acquisition of the title thereto must be counted, not
from the time of the opening of the windows, but from the time at which the owner
thereof has executed some act of opposition tending to deprive the owner of the
servient tenement of his right, under the law, to build upon it to such height as he
might see fit in the legitimate use of his rights of ownership. With respect to the
watershed, the court held that the shed in question in the case is not included within
the class of projections referred to in article 582 of the Civil Code, and certain it is that
neither this article nor and of the other provisions of law cited by the appellant in his
motion papers establish any doctrine contrary to that laid down in the decision, either
with regard to the watershed or with respect to the windows. It is not necessary to say
anything further upon this point. It is sufficient to read the text of the laws cited to
reach the conclusion that the assertion made by the appellant in his motion papers is
entirely gratuitous.

Article 582 provides that windows with direct views, balconies, or other similar
projections opening upon the tenement of one’s neighbor are not permissible unless
there are two meters distance between the wall in which such openings are constructed
and the adjacent tenement. From this the appellant draws the conclusion that he who
opens windows in his own wall without respecting the distance mentioned does not
exercise an act of ownership, as stated in the decision, inasmuch as he violates an
express provision of the law.

The conclusion reached is evidently false. The appellant confounds the facts with the
law — an act of ownership with the right of ownership. The owner of a thing does not
cease to be such owner because in his manner of use or enjoyment thereof he violates
some provision of law. The acts which he performs, in our opinion, even if abusive or
contrary to law, are in a strict sense acts of ownership, acts in the exercise of dominion,
because this character is not derived from a greater or less degree of compliance with
the provisions of law, but from the existence of the status of owner on the part of the
person who exercises such acts. In order that the act performed by the owner of a wall
in opening windows therein be a true act of ownership it is a matter of indifference
whether or not the distance prescribed by article 582 of the Code has been respected,
although, considered from a legal point of view, it might be an illegal act, as not
complying with the conditions imposed by law.

The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to the effect
that "a man should not use that which belongs to him as if it were a service only, but as
his own property" is of general application, and does not refer to the easements which a
property owner may establish for the benefit of his heirs, as is erroneously believed by
the Appellant. The very same law provides that easements which "a man imposes upon
his house must be for the benefit of the tenement or thing of another, and not that of
his own tenement;" and this is because things are of service to their owner by reason of
dominion, and not in the exercise of a right of easement. "Res sua," says a legal
maxim, "nemini jure servitutis servit."cralaw virtua1aw library

The provision of article 1942 of the Civil Code to the effect that acts which are merely
tolerated produce no effect with respect to possession is applicable as much to the
prescription of real rights as to the prescription of the fee, it being a glaring and self-
evident error to affirm the contrary, as does the appellant in his motion papers.
Possession is the fundamental basis of the prescription. Without it no kind of
prescription is possible, not even the extraordinary. Consequently, if acts of mere
tolerance produce no effect with respect to possession, as that article provides, in
conformity with article 114 of the same Code, it is evident that they can produce no
effect with respect to prescription, whether ordinary or extraordinary. This is true
whether the prescriptive acquisition be of a fee or of real rights, for the same reason
holds in one and the other case; that is, that there has been no true possession in the
legal sense of the word. Hence, it is because the use of windows in one s own wall is
the result of a mere tolerance that the supreme court of Spain, in its judgment of June
13, 1877, has held that such user lacks the creative force of a true easement, although
continued from time immemorial. The citation of article 1959 of the Civil Code and of
law 21, title 29, partida 3, made by the petitioner, is therefore not in point, because
both of these provisions of law, which refer to the extraordinary period of prescription,
presuppose possession as a necessary requisite, even if without either just title or good
faith.

The second error assigned is that in the decision the court holds that the gravamina
constituted by the window and the projection are negative easements, against the
provisions of article 533, which define them as positive, which definition, he adds, is
supported by the judgments of the supreme court of Spain of February 7 and May 5,
1896, cited in paragraph 1" of the said decision, which judgments declare that the
easement resting from a window is positive.

It is not true that article 533 of the Civil Code says that the easement of light is
positive, because it does nothing more than give in general terms the definition of
positive easements and negative easements, without attempting to specify whether the
easement of lights pertains to the first or to the second class. We have declared that
the easement is negative, having in mind this very definition of the Code and the
doctrine established by the judgments of the supreme court of Spain which have been
cited in our opinion. The interpretation which the appellant attempts to give the article
of the Civil Code cited is evidently erroneous, and, consequently, the citation made by
him in support of his contention is not in point.
Our opinion of the true extent and meaning of the judgments of the supreme court of
Spain of February 7 and May 5, 1896, has been already sufficiently explained, and it is
therefore unnecessary to go into the subject again here. We refer to our decision with
respect to what was said therein upon this subject.

The decision of the court does not contain the declaration, as gratuitously assumed by
the appellant, that the easement resulting from a projection is of a negative character;
nor, in fact, had we any occasion to make such a declaration, in view of the nature of
the issues raised and discussed during the trial. What we did, indeed, hold was that the
watershed mentioned in the complaint, the purpose of which was simply to protect the
window in question from sun and rain, was a mere accessory to that window, and that
in no case could it be considered as a projection within the provisions of article 582 of
the Civil Code, as so erroneously contented by the appellant at the trial. The find
nothing in his motion papers which can in any way weaken this holding.

The third error assigned is that the court holds that the easement of light, as negative,
can not be acquired by prescription except by counting the period of possession from
the time at which the owner of the servient tenement has been prohibited from making
improvements which might interfere with said easement, contrary to the provisions of
law 14, title 31, partida 3, and articles 538 and 585 of the Civil Code, which establish
the contrary.

This assertion is entirely destitute of foundation, inasmuch as neither in the law of the
partidas nor in the articles of the Civil Code mentioned is to be found the doctrine which
the appellant arbitrarily seeks to deduce from them. It is sufficient to read the text to
reach the conclusion that the assertion is wholly gratuitous.

The fourth error assigned is that the court holds that the watershed, as being an
accessory of the window, can not in itself constitute an easement, this being contrary to
the provisions of articles 582 and 585 of the Civil Code, and law 2, title 31, partida 3,
which do not make any such distinction.

Neither of the laws cited speaks expressly of watersheds. We have held that article 582
refers solely to windows, balconies, and other similar projections, and that the
watershed in question does not pertain to this class of projections, our holding being
based upon the reasons given in our decision. The appellant advances no argument
worthy of serious consideration, and therefore we continue to believe that our opinion
in this matter is strictly in accordance with the law.

The appellant has attached to his motion for a rehearing two judgments, one rendered
by the Royal Audiencia of Manila September 6, 1877, and the other by the supreme
court of Spain on the 22d of February, 1892, and we think it well to say a few words
concerning them.

In the opinion of the appellant these judgments support the theory contended for by
him at the trial, that the easement of lights is positive and not negative. His error in so
believing is evident, inasmuch as neither of the judgments referred to establishes any
such doctrine. On the contrary, it appears clear, from the first of these judgments, that
the easement referred to is negative in the opinion to the court which rendered it. This
appears from the eighth conclusion of law therein, which is literally as follows: "From
the evidence introduced by the defendant, and even from the testimony of witnesses of
the plaintiff, it has been proven that since 1828 the house in question has suffered no
change or alteration in its roof, which projects over Cosio’s lot, which constitutes the
active opposition necessary in order to acquire by prescription the right to the light." It
will be seen, then, that the latter part of the preceding transcript of the conclusion of
law lays down precisely the same doctrine as that expressed in our decision — that
active opposition is a necessary condition for prescriptive acquisition of an easement of
light. And this also demonstrates conclusively that the court which rendered the
judgment referred to considered the easement to be negative, inasmuch as positive
easements do not require any active opposition as a basis for their prescriptive
acquisition, such an act being solely necessary to the prescription of negative
easements.

It would appear, judging from his allegations as a whole, that the appellant confuses
positive easements with continuous easements, and the judgment referred to, in fact,
declares in its fourth conclusion of law that the easement of light is continuous. If this
were really so the error of the appellant would be manifest, because continuity is not a
quality exclusively peculiar to positive easements; there are negative easements which
are also continuous. Hence it is that the Civil Code, after classifying easements, in
article 532, as continuous and discontinuous, classifies them also as positive and
negative (art. 533), thus giving to understand that this latter classification depends
upon other characteristics entirely distinct from the continuity or discontinuity of
easements. If all continuous easements were positive and all discontinuous easements
were negative, then the express division of easements into positive and negative made
by the Code, after establishing the division of the same as continuous or discontinuous,
would be entirely unnecessary, as they would be entirely merged or included in the
latter classification. It is sufficient to read the text of the Code to understand beyond
the possibility of a doubt that a negative easement may be continuous, and that a
positive easement may be discontinuous, according to the special nature of each one.

With respect to the second judgment — the judgment of the supreme court of Spain of
February 22, 1892 — it is certainly difficult to understand how the appellant could have
imagined that he had found therein the slightest ground for his contention, inasmuch as
it laws down no doctrine which relates even by inference to the subject of easements,
and simply holds, in the first of only two paragraphs in which its conclusions are
contained, that "judgments should be clear, precise, and responsive to the complaint
and the issues properly raised at the trial; "and in the second, that "the judgment
appealed was contradictory as to the questions it decides, because it makes certain
declarations favorable to some of the contentions in the plaintiff’s complaint and then
gives judgment for the defendant, without making any distinction." It was for this
reason alone, and for no other, that the judgment appealed as reversed and annulled.
In the judgment rendered by the same supreme court upon the merits of the case, as a
result of this decision in cassation, no other doctrine is laid down than that "the
judgment must be that the defendant comply with those claims advanced by the
complaint to which he has consented, and that he must be discharged as to those
allegations which have been denied by him and which have not been proved by the
plaintiff."
cralaw virtua1aw library

‘There is not one word in these judgments which says that the easement of lights is
positive, nor that a watershed constitutes a true projection within the meaning attached
to this word in article 582 of the Civil Code, as has been vainly contended by the
appellant in the trial.

Therefore the appellant’s motion for a rehearing of the decision of March 12, 1903, is
denied.

Arellano, C.J., Cooper, Willard and Ladd, JJ., concur.

Torres and McDonough, JJ., did not sit in this case.

ON MOTION FOR WRIT OF ERROR TO REMOVE THE CASE OF THE SUPREME COURT OF
THE UNITED STATES.

WILLARD, J. :

The application to this court for the allowance of a writ of error or appeal for the
purpose of removing this case to the Supreme Court of the United States is denied.

Section 10 of the act of Congress of July 1, 1902, is as follows: jgc:chanrobles.com.ph

"SEC 10. That the Supreme Court of the United States shall have jurisdiction to review,
revise, reverse, modify, or affirm the final judgments and decrees of the Supreme Court
of the Philippine Islands in all actions, cases, causes, and proceedings now pending
therein or hereafter determined thereby in which the Constitution or any statute,
treaty, title, right, or privilege of the United States is involved, or in causes in which the
value in controversy exceeds twenty-five thousand dollars, or in which the title or
possession of real estate exceeding in value the sum of twenty-five thousand dollars, to
be ascertained by the oath of either party or of other competent witnesses, is involved
or brought in question; and such final judgments or decrees may and can be reviewed,
revised, reversed, modified, or affirmed by said Supreme Court of the United States on
appeal or writ of error by the party aggrieved, in the same manner, under the same
regulations, and by the same procedure, as far as applicable, as the final judgments
and decrees of the circuit courts of the United States." cralaw virtua1aw library

There is no question in the case relating to the Constitution or any statute of the United
States. The evidence submitted by the applicant shows that the value of his property
over which this litigation turns is $11,867.70, money of the United States.

The fact that the plaintiff owns other houses in different parts of the city as to which he
claims an easement of light similar to the one claimed in this case, that the decision in
this case destroys all of these claimed easements, and that the value of those other
houses exceeds $ "5,000, gold, is not important. The test is the value of the matter in
controversy. The matter in controversy here was the easement of light and air over the
property No. 63 Calle del Rosario and in favor of house No. 65. That easement could
not be worth more than the house itself.
The easements in favor of other houses of the plaintiff over other lots than No. 63 were
not in controversy in this suit. (Town of Elgin v. Marshall, 106 U. S., 578.) So ordered.

G.R. No. L-48384             October 11, 1943

SEVERO AMOR, petitioner,
vs.
GABRIEL FLORENTINO, ET AL., respondents.

BOCOBO, J.:

The petitioner asks for the setting aside of the decision of the Court of Appeals which affirmed the
judgment of the Court of First Instance of Ilocos Sur. The trial court declared that an easement of
light and view had been established in favor of the property of the plaintiffs (respondents herein) and
ordered the petitioner to remove within 30 days all obstruction to the windows of respondents' house,
to abstain from constructing within three meters from the boundary line, and to pay P200.00
damages.

It appears that over 50 years ago, Maria Florentino owned a house and a camarin or warehouse in
Vigan, Ilocos Sur. The house had and still has, on the north side, three windows on the upper story,
and a fourth one on the ground floor. Through these windows the house receives light and air from
the lot where the camarin stands. On September 6, 1885, Maria Florentino made a will, devising the
house and the land on which it is situated to Gabriel Florentino, one of the respondents herein, and
to Jose Florentino, father of the other respondents. In said will, the testatrix also devised the
warehouse and the lot where it is situated to Maria Encarnancion Florentino. Upon the death of the
testatrix in 1882, nothing was said or done by the devisees in regard to the windows in question. On
July 14, 1911, Maria Encarnacion Florentino sold her lot and the warehouse thereon to the
petitioner, Severo Amor, the deed of sale stating that the vendor had inherited the property from her
aunt, Maria Florentino. In January, 1938, petitioner destroyed the old warehouse and started to build
instead a two-story house. On March 1st of that year, respondents filed an action to prohibit
petitioner herein from building higher than the original structure and from executing any work which
would shut off the light and air that had for many years been received through the four windows
referred to. The Court of First Instance found on the 15th of the same month that the construction of
the new house had almost been completed, so the court denied the writ of preliminary injunction.

I.

Inasmuch as Maria Florentino died in 1892, according to the finding of fact of the Court of Appeals,
Articles 541 of the Civil Code governs this case. The facts above recited created the very situation
provided for in said article, which reads as follows:

(Spanish - page 406)

Art. 551. La existencia de un signo aparente de servidumbre entre dos fincas, establecido
por el propietario de ambas, se considerara, si se enjenare una, como titulo para que la
servidumbre continue activa y pasivamente, a no ser que, al tiempo de separarse la
 propiedad de las dos fincas, se exprese lo contrario en el titulo de enajenacion de cualquiera
de ellas, o se haga desaparecer acquel signo antes del otorgamiento de la escritura.

Art. 541. The existence of an apparent sign of easement between two estates, established
by the proprietor of both, shall be considered, if one of them is alienated, as a title so that the
easement will continue actively and passively, unless at the time the ownership of the two
estates is divided, the contrary is stated in the deed of alienation of either of them, or the
sign is made to disappear before the instrument is executed.

When the original owner, Maria Florentino, died in 1892, the ownership of the house and its lot
passed to respondents while the dominion over the camarin and its lot was vested in Maria
Encarnancion Florentino, from whom said property was later bought by petitioner. At the time the
devisees took possession of their respective portions of the inheritance, neither the respondents nor
Maria Encarnacion Florentino said or did anything with respect to the four windows of the
respondents' house. The respondents did not renounce the use of the windows, either by stipulation
or by actually closing them permanently. On the contrary, they exercised the right of receiving light
and air through those windows. Neither did the petitioner's predecessor in interest, Maria
Encarnacion Florentino, object to them or demand that they be close. The easement was therefore
created from the time of the death of the original owner of both estates, so when petitioner bought
the land and the camarin thereon from Maria Encarnancion Florentino, the burden of this easement
continued on the real property so acquired because according to Article 534, "easements are
inseparable from the estate to which they actively or passively pertain."

An incidental question that arises at this juncture is whether or not Article 541 applies to a division of
property by succession. The affirmative has been authoritatively declared. (Manresa, "Comentarios
al Codigo Civil Espanol," vol. 4, p. 619; Sentence of the Supreme Tribunal of Spain, November 17,
1911).

Petitioner assigns as an error of the Court of Appeals the supposed failure of that tribunal to pass
upon his motion to consider certain allegedly new evidence to prove that Maria Florentino, the
original owner of the properties, died in 1885. Petitioner alleges that Maria Florentino died in 1885
and, therefore, the Law of the Partidas should be followed in this case and not the Civil Code.
However, the petitioner's contention cannot be upheld without rejecting the finding of fact made by
the Court of Appeals, as follows:

Hebiendo pasado la propiedad de la casa de manposteria a los demandantes, a la muerte

de Maria Florentino, ocurrida en 1892, (el demandado sostiene que fue con anterioridad a
1889) no hay duda ninguna de que los demandantes adquirieron la servidumbre mediante
titulo y por prescripcion (Art. 537).

We cannot review the above finding of fact by the Court of Appeals that Maria Florentino die in 1892.
The evidentiary fact from which the Court of Appeals drew the above finding is that Gregorio
Florentino during the trial in 1938 testified to facts of his own personal knowledge, and he was then
58 years old, having been born in 1880. If Maria Florentino, as claimed by petitioner, had died in
1885, Gregorio Florentino would have been only 5 years of age at the time of Maria Florentino's
death. The Court of Appeals therefore concluded that Maria Florentino died in 1892, when Gregorio
Florentino was ten 12 years of age. We do not believe we can disturb the finding of the Court of
Appeals, because its deductions as to the date of Maria Florentino's death may be right or wrong,
according to one's own reasoning. In other words, its conclusion of fact from Gregorio Florentino's
testimony is not necessarily and unavoidably mistaken. On the contrary, it is reasonable to believe
that a person 58 years old cannot remember facts of inheritance as far back as when he was only 5
years of age.
Furthermore, the burial certificate and the gravestone, whose copy and photograph, respectively,
were offered by petitioner in a motion for new trial filed in the Court of Appeals, could have been
discovered by petitioner before the trial in the Court of First Instance by the exercise of due
diligence. There is no reason why this evidence could be found when the case was already before
the Court of Appeals, but could not be found before the trial in the Court of First Instance. It was
easy, before such trial, for the petitioner to inquire from the relatives of Maria Florentino as to when
she died. And having ascertained the date, it was also easy to secure the burial certificate and a
photograph of the gravestone, supposing them to be really of Maria Florentino. The fact is, petitioner
never tried to find out such date and never tried to secure the additional evidence till his counsel
raised this issue for the first time before the Court of Appeals. That Court was therefore died in 1885.
(Sec. 497, Act. 190). The petitioner's statement in his brief (p. 11) that the Court of Appeals neither
passed upon his motion nor took the burial certificate and the gravestone into account is not true,
because the very words of the Court of Appeals clearly show that the Court had in mind said motion
and evidence when the decision was signed. The decision said: "a la muerte de Maria Florentino
ocurrida en 1892 (el demandado sostiene que fue con anteriodad a 1889)" (Emphasis supplied).

Lastly, the issue as to the date of Maria Florentino's death cannot be raised for the first time on
appeal. Petitioner did not in the trial court allege or prove this point. He presented this issue for the
first time in the Court of Appeals. (Sec. 497, Act. 190).

Let us now consider Article 541 more closely in its application to the easement of light and view and
to the easement not to build higher (altius non tollendi). These two easements necessarily go
together because an easement of light and view requires that the owner of the servient estate shall
not build to a height that will obstruct the window. They are, as it were, the two sides of the same
coin. While an easement of light and view is positive, that of altius non tollendi is negative. Clemente
de Diego states that when article 538 speaks of the time for the commencement of prescription for
negative easements, "it refers to those negative easements which are the result and consequence of
others that are positive, such as the easement not to build higher, or not to construct, which is
indispensable to the easement of light." (Se refiere a aquellas servidumbres negativas que son
sucuela y consecuencia de otras positivaas, como la de no levantar mas alto, o de no edificar, que
es imprescindible para la servidumbre de luces.") ("Curso Elemental de Derecho Civil Españos,
Comun y Foral," vol. 3, p. 450). This relation of these two easements should be borned in mind in
connection with the following discussion of (1) the modes of establishing and acquiring easements;
(2) the meaning of article 541; and (3) the doctrine in the case of Cortes vs. Yu-Tibo.

First, as to the modes of establishing and acquiring easements. According to Article 536, easements
are established by law or by will of th owners. Acquisition of easements is first by title or its
equivalent and seconly by prescription. What acts take the place of title? They are mentioned in
Articles 540 and 541, namely, (1) a deed of recognition by the owner of the servient estate; (2) a
final judgment; and (3) an apparent sign between two estates, established by the owner of both,
which is the case of article 541. Sanchez Roman calls cuh apparent sign under article 541
"supletoria del titulo constitutivo de la servidumbre (Derecho Civil, vol. 3, p. 656). The same jurist
says in regard to the ways of constituting easements:

(Spanish word - page 410)

In the Sentence of the Supreme Tribunal of Spain dated November 7, 1911, it was held that under
article 541 of the Civil Code, the visible and permanent sign of an easement "is the title that
characterizes its existence" ("es el titulo caracteristico de su existencia.")

It will thus be seen that under article 541 the existence of the apparent sign in the instance case, to
wit, the four windows under consideration, had for all legal purposes the same character and effect
as a title of acquisition of the easement of light and view by the respondents upon the death of the
original owner, Maria Florentino. Upon the establishment of that easement of light and view, the con-
comitant and concurrent easement of altius non tollendi was also constituted, the heir of
the camarin and its lot, Maria Encarnacion Florention, not having objected to the existence of the
windows. The theory of article 541, of making the existence of the apparent sign equivalent to a title,
when nothing to the contrary is said or done by the two owners, is sound and correct, because as it
happens in this case, there is an implied contract between them that the easements in question
should be constituted.

Analyzing article 541 further, it sees that its wording is not quite felicitous when it says that the
easement should continue. Sound juridical thinking rejects such an idea because, properly speaking,
the easement is not created till the division of the property, inasmuch as a predial or real easement
is one of the rights in another's property, or jura in re aliena and nobdy can have an easement over
his own property, nimini sua res servit. In the instant case, therefore, when the original owner, Maria
Florentino, opened the windows which received light and air from another lot belonging to her, she
was merely exercising her right of dominion. Consequently, the moment of the constitution of the
easement of light and view, together with that of altius non tollendi, as the time of the death of the
original owner of both properties. At that point, the requisite that there must be two proprietors —
one of the dominant estate and another of the servient estate — was fulfilled. (Article 530, Civil
Code.)

Upon the question of the time when the easement in article 541 is created, Manresa presents a
highly interesting theory, whether one may agree with it or not. He says:

La servidumbre encubierta, digamoslo asi, por la unidad de dueño, se hace ostensible, se

revela con toda su verdadera importancia al separarse la propiedad de las fincas o
porciones de finca que respectivamente deben representar el papel de predios sirviente y
dominante.

The concealed easement, as it were by the oneness of the owner, becomes visible, and is
revealed in all its importance when the ownership of the estate or portions of the estate
which respectively should play the role of servient and dominant estates is divided.

Such a view cannot be fully accepted because before the division of the estate there is only a
service in fact but not an easement in the strictly juridical sense between the two buildings or parcels
of land.

We come now to the case of Cortes vs. Yu-Tibo, 2 Phil., 24 decided in 1903, Mr. Justice, later Chief
Justice, Mapa speaking for the Court. Counsel for petitioner contends that the doctrine in that case is
controlling in the present one. If the essential facts of the two cases were the same, there is not
doubt but that the early opinion would be decisive inasmuch as it is by its cogent reasoning one of
the landmarks in Philippine jurisprudence. However, the facts and theories of both cases are
fundamentally dissimilar. What is more, as will presently be explained, that every decision makes a
distinction between that case and the situation provided for in article 541. In that case, Cortes sought
an injunction to restrain Yu-Tibo from continuing the construction of certain buildings. Cortes' wife
owned a house in Manila which had windows that had been in existence since 1843. The defendant,
who occupied a house on the adjoining lot, commenced to raise the roof of the house in such a
manner that one-half of the windows in the house owned by plaintiff's wife had been covered. This
Court, in affirming the judgment of the lower court which dissolved the preliminary injunction, held
that the opening of windows through one's own wall does not in itself create an easement, because it
is merely tolerated by the owner of the adjoining lot, who may freely build upon his land to the extent
of covering the windows, under article 581, and that his kind of easement is negative which can be
acquired through prescription by counting the time from the date when the owner of the dominant
estate in a formal manner forbids the owner of the servient estate from obstructing the light, which
had not been done by the plaintiff in this case.

It will thus be clear that one of the essential differences between that case and the present is that
while the Yu-Tibo case involved acquisition of easement by prescription, in the present action the
question is the acquisition of easement by title, or its equivalent, under article 541. Therefore, while a
formal prohibition was necessary in the former case in order to start the period of prescription, no
such act is necessary here because the existence of the apparent sign when Maria Florentino died
was sufficient title in itself to created the easement.

Another difference is that while in the Yu-Tibo case, there were tow different owners of two separate
houses from the beginning, in the present case there was only one original owner of the two
structures. Each proprietor in the Yu-Tibo case was merely exercising his rights of dominion, while in
the instant case, the existence of the apparent sign upon the death of the original owner ipso
facto burdened the land belonging to petitioner's predecessor in interest, with the easements of light
and view and altius non tollendi in virtue of article 541.

The very decision in Cortes vs. Yu-Tibo distinguishes that case from the situation foreseen in article
541. Said this Court in that case:

It is true that the Supreme Court of Spain, in its decisions of February 7 and May 5, 1986,
has classified as positive easements of light which were the object of the suits in which these
decisions were rendered in cassation, and from these it might be believed at first glance, that
the former holdings of the supreme court upon this subject had been overruled. But this is
not so, as a matter of fact, inasmuch as there is no conflict between these decisions and the
former decisions above cited.

In the first of the suits referred to, the question turned upon two houses which had formerly
belonged to the same owner, who established a service of light on one of them for the
benefit of the other. These properties were subsequently conveyed to two different persons,
but at the time of the separation of the property noting was said as to the discontinuance of
the easement, nor were the windows which constituted the visible sign thereof removed. The
new owner of the house subject to the easement endeavored to free it from the
incumbrance, notwithstanding the fact that the easement had been in existence for thirty-five
years, and alleged that the owner of the dominant estate had not performed any act of
opposition which might serve as a starting point for the acquisition of a prescriptive title. The
supreme court, in deciding this case, on the 7th of February, 1896, held that the easement in
this particular case was positive, because it consisted in the active enjoyment of the light.
This doctrine is doubtless based upon article 541 of the Code, which is of the following tenor:
"The existence of apparent sign of an easement between two tenements, established by the
owner of both of them, shall be considered, should one be sold, as a title for the active and
passive continuance of the easement, unless, at the time of the division of the ownership of
both tenements, the contrary should be expressed in the deed of conveyance of either of
them, or such sign is taken away before the execution of such deed.'

The word "active" used in the decision quoted in classifying the particular enjoyment of light
referred to therein, presuposes on the part of the owner of the dominant estate a right to
such enjoyment arising, in the particular cases passed upon by that decision, from the
voluntary act of the original owner of the two houses, by which he imposed upon one of them
an easement for the benefit of the other. It is well known that easements are established,
among other cases, by the will of the owners. (Article 536 of the Code.) It was an act which
 was, in fact, respected and acquiesced in by the new owner of the servient estate, since he
purchased it without making any stipulation against the easement existing thereon, but, on
the contrary, acquiesced in the continuance of the apparent sign thereof. As is stated in the
decision itself, "It is a principle of law that upon a division of a tenement among various
persons — in the absence of any mention in the contract of a mode of enjoyment different
from that to which the former owner was accustomed — such easements as may be
necessary for the continuation of such enjoyment are understood to subsist." It will be seen,
then, that the phrase "active enjoyment" involves an idea directly opposed to the enjoyment
which is the result of a mere tolerance on the part of the adjacent owner, and which, as it is
not based upon an absolute, enforceable right, may be considered as of a merely passive
character. (2 Phil., 29-31).

Finally, the Yu-Tibo case was decided upon the theory if the negative easement of altius non
tollendi, while the instant case is predicated on the idea of the positive easement of light and view
under article 541. On this point, suffice it to quote from Manresa's work. He says:

Que en las servidumbres cuyo aspecto positivo aparece enlazado al negativo, asi como al
efecto de la precripcion ha de considerarse prefente el aspecto negativo, al efecto del art.
541 basta atender al aspecto positivo, y asi la exitencia de huecos o ventanas entre dos
fincas que fueron de un mismo dueño es bastante para considerar establecidas, al
separarse la propiedad de esas fincas, las servidumbres de luces o vista, y con ellas las de
no edificar on no levantar mas ato, porque sin estas no prodrian existir aquellas.

That in easements whose positive aspect appears tied up with the negative aspect, just as
for the purposes of prescription the negative aspect has to be considered preferential, so for
the purposes of Article 541 it is sufficient to view the positive aspect, and therefore the
existence of openings or windows between two estates which belonged to the same owner is
sufficient to establish, when the ownership of these estates is divided, the easement of light
or view, and with them the easements of altius non tollendi because without the latter, the
former cannot exists.

There are several decisions of the Supreme Court of Spain which have applied Article 541. Some of
them are those of February 7, 1986; February 6, 1904; May 29, 1911; and November 17, 1911.

The sentence of February 7, 1896, dealt with windows established in one house by the original of
two houses. When he died, the two houses were adjudicated to different heirs. The court held that
there was an easement of light.

Considerando que, segun lo establecido por este Supremo Tribunal en repetidas sentencias,
y consignado, muy principalmente, en la dictada en 21 de Octubre de 1892, lo preceptuado
en la ley 14, titulo 31 de la Partida 3.a, al tratar del mode de constituirse las servidumbres,
no esta en oposicion con el pricipio mediante el que, dividida una finca entre diversas
personas, sin que en el contrato se mencione cosa alguna acerca de un modo de
aprovenchamiento distinto del que usaba el primitivo dueño de ella, se entieden
subsistentes las servidumbres ncesarias para que aquel pueda tener lugar.

Considerando que ese principio y jurisprudencia han obtenido nueva sancion, puesto que a
ellos obedece el concepto claro y concreto del articulo 541 del Codigo Civil, aplicable al
caso, . . . (Ruiz, Codigo Civil, Vol. V, pp. 349-350).

Considering that, according to what has been established by this Supreme Tribunal in
repeated sentences, and principally declared in the sentence promulgated on October 21,
 1892, the provision of law 14, title 31 of Partida 3 in treating of the mode of constituting
easements, is not contrary to the principle that when an estate is divided between different
persons, and in the contract nothing is said out a mode of enjoyment different from that used
by the original owner thereof, the necessary easements for said mode of enjoyment are
understood to be subsisting;

Considering that such principle and jurisprudence have obtained a new santion, for due to
them is the clear and concrete concept of Article 541 applicable to the case . . . .

Therefore, considering that Maria Florentino died in 1892, according to a finding of fact by the Court
of Appeals, there is an easement of light and view in favor of the respondents' property under article
541 of the Civil Code.

But granting, arguendo, that Maria Florentino died in 1885, as contended by petitioner, nevertheless
the same principle enunciated in article 541 of the Spanish Civil Code was already an integral part of
the Spanish law prior to the Civil Code, the easement in question would also have to be upheld. That
the law before the Civil Code was the same as at present is shown by the following:

1. Under Law 14, Title 31, Partida 3, this easement was constituted by an implied contract
among the heirs of Maria Florentino.

2. Granting for the sake of argument that this easement was not created through an implied
contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas was not
inconsistent with the principle in question, so that there was a gap in the Partidas which the
Supreme Court of Spain filled up from the Roman Law and modern civil codes, by
recognizing the existence of this kind of easement.

3. Law 17, Title 31, Partida 3 regarding the extinguishment of an easement did not prohibit
the easement in the instant case, Therefore, we should adhere to the decisions of the
Supreme Court of Spain which maintain this easement under the Spanish law prior to Civil
Code.

4. Other considerations show that the principle of apparent sign as announced by the
Supreme Tribunal of Spain is not incompatible with the Partidas.

First, as to the implied contract. Law 14, Title 31, Partida 3 provided that easements were acquired
by contract, by will and by prescription. Upon the death of the original owner, Maria Florentino, the
four windows under consideration already existed and were visible. One of the heirs, Maria
Encarnacion Florentino, to whom the camarin and its lot had been devised, having failed to object to
the same, knowingly consented to their continuance. Nor did Gabriel and Jose Florentino (devisees
of the house that had the four windows) permanently close the windows. There was consequently an
implied agreement between her and the devisees of the house with the four windows to the effect
that the service of these windows would continue, thus creating the easement of light and view and
the concomitant easement of altius non tollendi. Hence, the easement in question was acquired by
Gabriel and Jose Florentino through contract under Law 14, Title 31, Partida 3.

Secondly, with respect to the doctrine of the Supreme Tribunal of Spain. In a series of decisions of
that court, it was held that Law 14, Title 31, Partida 3 was not opposed to the easement under
review. One of those decisions is that of November 7, 1883, which held:

(Spanish word - page 418)

Other decisions of the Supreme Tribunal of Spain to the same effect are those of September 14,
1867 and June 7, 1883. (See Scaevola, "Codigo Civil Comentado" vol. 10, pp. 272-274.)

So that, granting for the sake of argument, that the easement was not created through an implied
contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas, according to
decisions of the Supreme Tribunal of Spain, was not inconsistent with the principle in question. The
problem in this case not having been foreseen in Law 14, Title 31, Partida 3, there was a gap in the
old legislation, which the Supreme Tribunal of Spain filled up from the Roman Law and from modern
Civil Codes.

The principle in question was deeply rooted in the Roman Law. It is from the Roman Law that the
Supreme Tribunal of Spain obtained this principle, in order to solve a question not provided for by
the Partidas, whose main source was also the Roman law. In other words, the Partidas being silent
on the point under consideration, the Supreme Tribunal of Spain resorted to the authoritative voice
of the Roman law from which the Law of the Partidas had derived its inspiration.

The following quotations from the Spanish version the Roman Law Digest will prove the assertions
just made:

(Spanish word - page 419)

Among the modern civil codes which contain the rule in question are those of France, Belgium,
Holland, Portugal, Mexico and Chile. It is presumed that the Supreme Tribunal of Spain had also in
mind at least one of them when it decided cases involving this principle before the promulgation of
the Spanish Civil Code.

When, therefore, Maria Florentino died (supposing she died in 1885), the status of the Spanish law
was in favor of the doctrine in question. We cannot change it because it was in full force at the time
of the alleged date of Maria Florentino's death. We cannot reject a doctrine established by the
Spanish Supreme Tribunal as an integral part of the Spanish law before the promulgation of the Civil
Code in 1889. And we know that jurisprudence — in the sense of court decisions — is one of the
sources of the law.

Thirdly, concerning Law 17, Title 31, Partida 3. It is true that the eminent jurist, Manresa, is of the
opinion that "el precepto del art. 541 no solo no existia en nuestra antigua legislacion, sino que
podia deducirse claramente lo contrario de la ley 17, tit. 31, Partida 3.a . . . ." However, a careful
reading of this provision of the Partidas reveals that the same did not militate against the creation of
an easement by an apparent sign if nothing was said or done when the property is divided. Law 17,
Title 31, Partida 3, read as follows:

(spanish word - page 420-21)

This law regulates the extinguishment of an easement by merger of the dominant and the servient
estates. Speaking of this law of the Partidas and of article 546, par. 1, of the Civil Code, both of
which refer to merger of the two estates, Acaevola says: (p. 319, vol. 10)

But there is a world of difference between extinguishment of an easement by merger of the two

estates and the constitution of an easement by an apparent sign when nothing is done or said upon
the division of the property. Law 17, title 31, Partida 3, having in mind only the modes
of extinguishment, the legislator did not intend to cover the question involved in the present case,
which refers to the creation of an easement.
What, then, are the differences between the extinguishment of an easement by merger under Law
17, title 31, Partida 3, and the constitution of an easement in this case, both before and after the
Civil Code went into effect?

First, in merger under Law 17, Title 31, Partida 3, there were from the very beginning, already two
separate estates, the dominant and the servient estates, whereas in this case, there was only one
estate.

Second, in merger under said Law 17, there were already two owners, whereas in this case, there
was only one owner, Maria Florentino.

Third, in merger under Law 17, there was already an easement in the legal sense, whereas in the
instant case, there was only a service between the two lots, (while Maria Florentino was living) but
there was as yet no easement from the juridical viewpoint.

4. Other considerations prove that the principle of apparent sign as enunciated by the Supreme
Tribunal of Spain is not inconsistent with the Partidas. These considerations are:

1. Article 537, Civil Code, provides that continuous and apparent easements are acquired
by title, or by prescription. However, side by side with that article is article 541 which
contemplates an easement upon division of an estate, unless a stipulation to the contrary is
agreed upon, or the sign is destroyed. Bearing in mind that "title" includes a contract, our
view is that if Article 537 and 541 of the Civil Code can stand together, there is no reason
why Law 14, title 31, Partida 3, whereby easements are acquired by contract, by will and by
prescription should be considered incompatible with the easement under review.

2. Article 546, par. 1 of the Civil Code ordains that by merger of the two estates in the same
owner an easement is extinguished. Yet, coexistent with such provision is that of article 541
regarding the apparent sign which is a title for the easement. If these two principles can and
do stand together under the Civil Code, the doctrine laid down by the Supreme Tribunal of
Spain — before the Civil Code was in force — about the effect of an apparent sign can also
stand together with Law 17, title 31, Partida 3 declaring the extinguishment of an easement
by merger.

3. Under article 546, par. 1 of the Civil Code, merger extinguishes an easement. So in case
the estate is again divided by purchase, etc., the easement is not, under the Civil Code
automatically revived. That is the same provision of law 17, title 31, Partida 3, which does not
reject the principle in question, just as article 546, par. 1 of the Civil Code does not reject
article 541 about an apparent sign.

III.

Aside from the foregoing reasons that support the easement under consideration, the same has
been acquired by respondents through prescriptions.

The easement involved in this case is of two aspects: light and view and altius non tollendi. These
two aspects necessarily go together because an easement of light and view prevents the owner of
the sevient estate from building to a height that will obstruct the windows. This court in Cortes vs.
Yu-Tibo, supra, held that the easement concerned when there is an apparent sign established by the
owner of two estates is positive. Manresa is of the same opinion, supra. This being so, and
inasmuch as the original heirs of Maria Florentino succeeded to these two estates either in 1885 or
in 1892 and as petitioner bought one of the lots in 1911, the prescriptive period under any legislation
that may be applied — the Partidas, Civil Code or Code of Civil Procedure — has elapsed without
the necessity of formal prohibition on the owner of the servient estate. The respondent's action was
brought in 1938. The persons who were present, and 20 years between absentees. (4 Manresa,
605). According to article 537 of the Civil Code, continous and apparent easements may be acquired
by prescription for 20 years. Under sections 40 and 41 of the Code of Civil Procedure, the period is
10 years.

IV.

The petitioner maintains that he is an innocent purchaser for value of the lot and camarin thereon,
and that he was not bound to know the existence of the easement because the mere opening of
windows on one's own wall does not ipso facto create an easement of light. Such contention might
perhaps be in point if the estates had not originally belonged to the same owner, who opened the
windows. But the petitioner was in duty bound to inquire into the significance of the windows,
particularly because in the deed of sale, it was stated that the seller had inherited the property from
her aunt, Maria Florentino. Referring to the Sentence of the Supreme Court of Spain dated February
7, 1896, which applied Article 541, this Court in the case of Cortes vs. Yu-Tibo already cited, said
that the establishment of the easement "was an act which was in fact respected and acquiesced in
by the new owner of the servient estate, since he purchased it without making any stipulation against
the easement existing thereon, but on the contrary acquiesced in the new owner of the servient
estate, since he purchased it without making any stipulation against the easement existing thereon,
but on the contrary, acquiesced in the continuance of the apparent sign thereof." (p. 31). Moreover, it
has been held that purchasers of lands burdened with apparent easements do not enjoy the rights of
third persons who acquire property, though the burden it not recorded. (Sentence of the Supreme
Tribunal of Spain, April 5, 1898).

V.

Let us now discuss the case from the standpoint of justice and public policy.

First. — When Maria Encarnacion Florentino, as one of the devisees, accepted the camarin and the
lot, she could not in fairness receive the benefit without assuming the burden of the legacy. That
burden consisted of the service in fact during the lifetime of the original owner, which service
became a true easement upon her death.

Second. — According to Scaevola, the reason for the principle in question is that there is a tacit
contract. He says in vol. 10, p. 277:

(spanish word - page 424)

Aun hay mas: hay, en nuestro entender, no solo presuncion de voluntad del enajenante, o
sea del dueño de las fincas que estuvieren confundidas, sino convencion, siquiera sea
tacita, entre el vendedor y al adquirente de la finca vendida. Puesto que pudiendo estipular
la no existencia de la servidumbre, nada dicen o nada hacen, fuerza es presumir que el
segundo (comprador) acepta el estado jurisdico creado por el primero (vendedor).

It is not just to allow Maria Encarnacion Florentino or her successor in interest to repudiate her own
undertaking, implied, it is true, but binding nevertheless. This easement is therefore a burden which
Maria Encarnacion Florentino and her successor in interest willingly accepted. They cannot now
murmur against any inconvenience consequent upon their own agreement.
Third. During the construction of the new house by the petitioner, the respondents filed an action to
stop the work. But petitioner continued the construction, so that when the Court of First Instance was
ready to pass upon the preliminary injunction, the work had almost been finished. Petitioner,
therefore, cannot complain if he is now ordered to tear down part of the new structure so as not to
shut off the light from respondents' windows.

Fourth. When petitioner bought this lot from the original coheir, Maria Encarnacion Florentino, the
windows on respondents' house were visible. It was petitioner's duty to inquire into the significance
of those windows. Having failed to do so, he cannot now question the easement against the property
which he purchased.

(spanish word - page 425)

This idea of easements can never become obsolete in the face of modern progress. On the contrary,
its need is all the more pressing and evident, considering that this mutual assistance and giving way
among estates is demanded by the complexities of modern conditions, such as those which obtain in
large cities where buildings, large and small, are so close together.

VI.

Recapitulating, we believe the easement of light and view has been established in favor of the
property of respondents, for these reasons:

1. Maria Florentino having died in 1892, according to a finding of fact of the Court of
Appeals, which we cannot review, Article 541 of the Civil Code is applicable to this case.

2. Granting, arguendo, that Maria Florentino died in 1885, nevertheless that same principle
embodied in article 541 of the Civil Code was already an integral part of the Spanish law
before the promulgation of the Civil Code in 1889, and therefore, even if the instant case
should be governed by the Spanish law prior to the Civil Code, the easement in question
would also have to be upheld.

3. The easement under review has been acquired by respondents through prescription.

4. The petitioner was not an innocent purchaser, as he was in duty bound to inquire into the
significance of the windows.

5. Justice and public policy are on the side of the respondents.

Wherefore, the judgment appealed from should be and is hereby affirmed, with costs against the
petitioner. So ordered.

Yulo, C. J., Moran Imperial, 1 and Havtiveras, 1 JJ., concur.

Separate Opinions
OZAETA, J., dissenting:

I regret to say that the omnibus opinion of the majority is a straddle over the baseless finding that
Maria Florentino died in 1892 and the assumption that she died in 1885. Since she could not have
died twice — and the date of her demise was properly raised as an issue in this case — the
equivocal position thus taken rests on no solid factual foundation. Straddling and tottering as it is on
shaky ground, the opinion as a whole appears to me untenable and its validity questionable. Did
Maria Florentino pass away in 1892? or based on the assumption that she died in 1885 is a
mere obiter dictum; and if she died in 1885, then Part I of the opinion based on the assumption that
she died in 1892 is likewise a mere obiter dictum. Thus it is not permissible for the Court to straddle
the issue.

There is absolutely no basis in the evidence for the finding that Maria Florentino died in 1892. Indeed
in its findings of fact the Court of Appeals made no mention of the date of Maria Florentino's demise,
but in its conclusion of law the year she died was incidentally mentioned in the following manner:

. . . Habiendo pasado la propiedad de la casa de mamposteria a los demandantes, a la

muerte de Maria Florentino, ocurrida en 1892 (el damandado sostiene que fue con
anterioridad a 1889), no hay duda ninguna de que los demandantes adquirieron la
servidumbre de luces y vistas sobre el camarin del demandado mediante titulo y por
prescripcion (Art. 537).

The indirect statement to the effect that Maria Florentino died in 1892 was not based on any
evidence but solely on the conjecture indulged in by counsel for the respondents in his brief: That
she must have died in the year 1892 because the respondent Gabriel Florentino testified during the
trial as to facts of his own personal knowledge, and since he was fifty-eight years old when he
testified in 1938, it must be presumed that he was at least twelve years old when his aunt Maria
Florentino died, and that therefore the death of the latter must have occurred in the year 1892. Such
deductions were absurd on their face and the Court of Appeals clearly committed an error of law in
adopting them. A finding of fact must be based on competent proofs — not on a mere conjecture.

The respondents themselves alleged under oath in their original as well as in their amended
complaint (but were silent as to this in their second amended complaint) that the death of Maria
Florentino occurred in the year 1888. No evidence was presented during the trial as to said date, but
nevertheless the trial court applied the Civil Code. The petitioner as appellant before the Court of
Appeals contended that the Partidas and not the Civil Code was the law applicable. It was then that
respondents (appellees below) tried to show by deduction and conjecture that Maria Florentino must
have died in 1892. To rebut that, appellant and his attorney made inquiries as to the true date of
Maria Florentino's demise and discovered from the church record of burials as well as from her
gravestone that she died on September 7, 1885, and was buried on the following day, September 8,
1885. They alleged in their affidavit that they had been unable to ascertain that date before on
account of the misleading allegation in appellees' complaint that Maria Florentino die in 1888. A
certified copy of the partida de entierro as well as a photograph of the gravestone showing the
inscription of the date of Maria Florentino's death, were offered by appellant in a motion for new trial
filed in the Court of Appeals on March 4, 1940; and on March 14, 1940, the Court of Appeals
ordered that said motion, together with the exhibits accompanying it, "be attached to the record and
brought to the attention of the Court when the case is considered on its merits." Nevertheless the
Court of Appeals either ignored or overlooked said motion and the documentary evidence
accompanying it when it considered and decided the case on the merits. Under section 2 of Rule 55,
as well as under sections 497 of Act No. 190, the court should have considered the new evidence
together with that adduced in the trial below. Thus, I think it cannot be doubted that Maria Florentino
died on September 7, 1885, more than four years before the Civil Code took effect.

The majority seem to feel bound by the conjecture indulged in by the respondents and adopted by
the Court of Appeals that Maria Florentino died in 1892, considering it as a finding of fact by the
Court of Appeals. I beg to differ. A statement of fact not based on any proof whatever should not be
accepted by this Court, especially when, as in this case, it is indubitably shown to be contrary to the
truth.

It is said that the church record of Maria Florentino's burial and the photograph of her gravestone
showing the inscription:

D. O. M.

AQUIYACEN LOS RESTOS MOORTALES DE

D. BONIFACIO F. ANATASIO

FALLECIO EN 26 DE OCTUBRE DE 1890

Y SU ESPOSA

Da MARIA FLORENTINO

QUE MURIO

EN 7 DE SETIEMBRE DE 1885

RECUERDO DE

Da ENCARNACION FLORENTINO

are not newly discovered evidence because they "could have been discovered by petitioner before
the trial in the Court of First Instance by the exercise of due diligence." I disagree again. There was
no incentive on the part f the petitioner to look for evidence of the exact date of Maria Florentino's
demise while the case was being tried in the court below, for the respondents themselves alleged
under oath in their original and amended complaints that she died in 1888, i.e., before the Civil Code
took effect, and introduced no evidence whatever that she died after 1889. It was only when the
respondents in their brief before the Court of Appeals tried to show by mental acrobatism that
she must have died in 1892 in order to justify the application of the Civil Code, that the petitioner
became interested in finding out the exact date of her death in order to impugn that contention.
Under the circumstances, I entertain no doubt that the proofs offered may be considered newly
discovered within the purview of our procedural law. After all, the rules of evidence are but a means
to an end — to help establish the truth. To illustrate the irrationality of applying the rules of evidence
too rigidly, let us suppose that an accused has been convicted of murder and sentenced to death,
but during the pendency of his appeal his counsel discovers that the alleged victim is living and in
good health, and counsel offers to prove that fact and even presents the "murdered" man in person
before the court. Should this Court reject the offer of proof and affirm the death sentence simply
because the appellant could have discovered the existence of the alleged victim by the exercise of
due diligence? Judging from the opinion of the majority in this case, it should. What a travesty on
justice

As a last argument on this point the majority say:

Lastly, the issue as to the date of Maria Florentino's death cannot be raised for the first time
on appeal. Petitioner did not in the trial court allege or prove this point. He presented this
issue for the first time in the Court of Appeals. (Sec. 497, Act. 190)

That is incorrect. Plaintiffs had the burden of proof. They are the ones who invoke the Civil Code. It
was up to them to prove that the transaction took place after 1889. They realized that only during the
appeal and, to supply their omission and even contradict their own sworn allegation, they resorted to
amazing deductions from the age of one witness. So it was the respondents who "presented this
issue for the first time in the Court of Appeals." The petitioner had the right to meet in then and there.

Since I cannot ignore the glaring fact that Maria Florentino died not in 1892 but in 1885, I cannot give
my assent to the application of article 541 of the Civil Code to the controversy between the parties. I
therefore regard all the profuse discussions of the law and citations of jurisprudence found in Part I
of the majority opinion as purely academic.

Part II of the opinion is based on the assumption that Maria Florentino died in 1885. Here I agree
with my esteemed colleagues on the factual basis but not on the legal conclusions.

The transitory provisions of the Civil Code, Rules I and 2, provide that "rights vested under the
legislation prior to this Code by virtue of acts which transpired while it was in force, shall be govern
by such prior legislation even if the code should otherwise provide with respect thereto, or should not
recognize such rights"; and that "acts and contracts executed under the prior legislation, and which
are valid in accordance therewith, shall produce all their effects as by these rules." The prior
legislation referred to, insofar as this case is concerned, was none other than the Partidas.

How were easements acquire under the Partidas? In three ways only: By contract, by testament, or
by prescription. (See law 14, title 31, Partida 3.) There was no provision in the Partidas similar to
article 541 of the Civil Code regarding the creation or acquisition of an easement thru the
establishment of an apparent sign thereof by the owner of two estates.

In their second alternative opinion the majority say that easement in question was constituted by an
implied contract among the heirs of Maria Florentino under law 14, title 31, Partida 3. The law cited
mentions "contract" and not "implied contract." As a source of right or obligation, "contract" is entirely
different from "implied" contract." The former is based upon the mutual consent of the parties,
supported by a lawful consideration, and with a definite subject matter, as, for instance, a contract of
lease (articles 1254 and 1261, Civil Code); while the latter is merely imposed or implied by law from
an act performed or committed by one of the parties without the consent and even against the will of
the other, as, for instance, the obligation of an embezzler to indemnify his victim and the right of the
latter to demand such indemnity. The mere fact that one has used the property of another by
tolerance or implied consent of the latter can never give rise to an implied contract under which the
former may assert and enforce a right to the continued use of that property against the owner.

Next it is said: "Granting for the sake of argument that this easement was not created through an
implied contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas was not
inconsistent with the principle in question, so that there was a gap in the Partidas which the
Supreme Court of Spain filled up from the Roman Law and modern codes by recognizing the
existence of this kind of easement." (The principle referred to is that embodied in article 541 of the
Civil Code.)

Under this alternative argument it is admitted that the Partidas (the pre-Civil Code legislation)
contained no provision similar to article 541 of the Civil Code and hence it was necessary (?) to
import a principle from the Roman Law in order to fill "a gap in the old legislation" as was done by
the Supreme Court of Spain. in the last analysis, the alternative opinion applies to this case not the
previous legislation as required by the Civil Code transitory provision but a principle of law imported
from ancient Rome.

I disagree as to the necessity for such importation and "filling the gap" in order to justice to the
parties in this case. Let us consider the facts: Before Maria Florentino died on September 7, 1885,
she owned a parcel of land in the commercial center of Vigan on which were built a house
and camarin. The camarin was one story and the house two stories high. Naturally, it was
convenient for her to open windows on that side of the house overlooking the camarin so long as
she did not decide to rebuild and raise the latter.

The pivotal question is, Did those windows constitute an apparent sign of easement of light and view
in favor of the house and against the camarin under the legislation in force here at that time, so that
upon the subsequent division of the two estates that sign would constitute a title of and create such
an easement? The negative answer is inescapable because the Partidas, unlike the Civil Code,
contained no provision supporting the affirmative. But my learned colleagues, emulating the
Supreme Court of Spain in similar cases, apply principle of the Roman Law to "fill the gap" and
justify the affirmative. The practical result of such "filling the gap" is to give retroactive effect to article
541 of the Civil Code, in violation of the transitory provision. The laws of Spain did not ex propio
vigore apply to the Philippines. They had to be expressly extended here by Royal Decrees. Witness
the Civil Code, the Partidas, etc. That being so, the opinion of the Supreme Court of Spain could not
and did not have the force of law in the Philippines. For this reason, I cannot agree with what the
majority say that "we cannot reject a doctrine established by the Spanish Supreme Tribunal as an
integral part of the Spanish law before the promulgation of the Civil Code in 1889." I know of no
Royal Decree making such doctrine an integral part of the Spanish law in the Philippines.

If we do not apply article 541 of the Civil Code — and we cannot apply it because Maria Florentino
died in 1885 — there is really a gap in the case for the respondents, but none in the case for the
petitioner. 1 Under the Partidas, or rather in the absence of an express provision therein similar to
article 541, the petitioner should win; and since the parties litigant herein are entitled to have their
case decided in accordance with the pre-Civil Code legislation in force in the Philippines as provided
in the transitory provisions, since that legislation without any "gap-filling" is in favor of the petitioner,
and since to "fill the gap" would prejudice him and unduly favor the respondents, the Court should
abstain from so doing as a matter of law and justice.

I repeat that as a matter of law and justice the Court should not go out of its way to "fill a gap in
the Partidas" by resorting to a principle in the Roman Law which was not a part of the law of this
country at the time the transactions involved took place, and for which reason it could not have been
in the mind of the parties. How can we charge Maria Florentino with knowledge of that principle of
the Roman Law, or even of the decisions of the Spanish Supreme Court, when she constructed the
windows in question? How can we make that principle binding upon her heirs, or assume that they
acted in accordance therewith, when they took possession of their respective hereditary portions
upon her death on September 7, 1885? Who knows but that had they been apprised of such a
principle of Roman Law and told that it would be held binding on them they would have closed the
windows in question or made an agreement regarding its continuance as long as the camarin was
not rebuilt?lawphil.net
It is argued that, as the Supreme Court of Spain has held, the principle in question is not inconsistent
with the provisions of the Partidas regarding the mode of acquiring and extinguishing easements. To
that I reply: Is the Court authorized to amend the law by adding thereto a provision not inconsistent
therewith and, what is worse, make the amendment retroactive? The Supreme Court of Spain of the
last century apparently thought so, but as I cannot agree with it I must disregard its voice and follow
the light of my own reason in the premises. By adopting and following the doctrine of the Supreme
Court of Spain the majority of this Court have, I fear, established here a pernicious precedent.
Hereafter no one in this country can safely rely on our codes and statutes as enacted by our own
legislature, for the court may at any time read into them any provision or principle of law of any other
jurisdiction — even of ancient and archaic Rome — so long as such provision or principle is not
inconsistent therewith; altho, if we would stop and reflect for a moment, we should realize that,
logically and legally speaking, any provision not included in the law must necessarily be considered
inconsistent with the legislative will, for the legislature has not seen fir to incorporate i therein. "That
is unfair! It is absurd! No court would do that!" you would protest. Then, I ask, "why do you do it in
the instant case?"

As a third alternative opinion (Part III) the majority hold that the easement in question has been
acquired by respondents thru prescription. This opinion, however, is predicated upon the assumption
that the opening of the windows in question constituted an apparent sign of the positive easement of
light and view, thus making the period of prescription run from the date of the demise of the original
owner. But as we have seen , that assumption is wrong because it is promised upon the improper
and unlawful application of either article 541 or its equivalent principle derived from the Roman Law
and adopted by the Supreme Court of Spain. Without such assumption, the period of prescription in
this case commenced to run only from January, 1938, when the petitioner began the construction of
the new house and when it is supposed the respondents for the first time made a formal prohibition
against the petitioner's raising his building and obstructing respondents' light and view, in
accordance with the Yu-Tibo case cited in the majority opinion. Hence I think the prescription theory
is also untenable.

"Filling the gap" is particularly unfortunate and disastrous in the present case because as a
consequence the petitioner will be compelled to tear down a portion of his newly built strong-material
house, which in the present emergency, for lack of building materials, he will be unable to repair or
patch up, thus not only causing him unnecessary loss and hardship but also leaving the torn-off new
building for the public to gape at and be scandalized with. The good Ilocanos would perhaps not be
able to understand why, on top of wanton and horrible daily destructions by bombs now savagely
going on in this war-torn world, the Court should find it necessary to add another without any
apparent substantial or material benefit to anybody. "Verily," they would say, "this is a made world!"

In this age of fluorescent lights and air conditioning devices, the concommitant easements of light
and view and altius non tollendi would seem to be only a deterrent to economic progress and should
not be considered established except when the law applicable clearly so justifies.

For the foregoing reasons I vote for the reversal of the judgment appealed from.

G.R. No. 228334, June 17, 2019

SPS. TEDY GARCIA AND PILAR GARCIA, PETITIONERS, v. LORETA T. SANTOS,

WINSTON SANTOS AND CONCHITA TAN, RESPONDENTS.

DECISION
 CAGUIOA, J.:

Before the Court is a Petition for Review on Certiorari1 (Petition) under Rule, 45 of the
Rules of Court filed by petitioners Tedy Garcia (Tedy) and Pilar Garcia (Pilar)
(collectively the Sps. Garcia), assailing the Decision 2 dated June 30, 2016 (assailed
Decision) and Resolution3 dated October 5, 2016 (assailed Resolution) of the Court of
Appeals,4 (CA, Special 18th Division) in CA-G.R. CEB-CV No. 05701.

The Facts and Antecedent Proceedings

As narrated by the CA in its assailed Decision and as culled from the records of the
instant case, the essential facts and antecedent proceedings of the case are as follows: cralawred

The instant case stems from a Complaint 5 for "[easements of light, air and view, lateral
support, and intermediate distances and damages with prayer for writ of preliminary
injunction and/or issuance of temporary restraining order]" (Complaint) filed on
February 18, 2009 by the Sps. Garcia against the respondents Spouses Loreta and
Winston Santos (the Sps. Santos) and respondent Conchita Tan (Tan) before the
Regional Trial Court of Iloilo City, Branch 31 (RTC). The case was docketed as Civil Case
No. 09-30023.

As alleged in the Complaint, the Sps. Garcia are the registered owners of Lot 2, Blk. 1,
San Jose Street, Southville Subdivision, Molo, Iloilo City (subject property), covered by
Transfer Certificate of Title (TCT) No. T- 130666. 6

The subject property, which has been occupied by the Sps. Garcia for about eleven (11)
years, has a one-storey residential house erected thereon and was purchased by them
from the Sps. Santos in October 1998. At the time of the purchase of the subject
property from the Sps. Santos, the one-storey house was already constructed. Also, at
the time of the acquisition of the subject property, the adjoining lot, Lot 1, which is
owned by the Sps. Santos, was an idle land without any improvements. Lot 1 is covered
by TCT No. T-114137,7 registered under the name of the Sps. Santos. Lot 1 remained
empty until the Sps. Santos started the construction of a two-storey residential house
therein on January 24, 2009. Upon inquiry from the construction workers, Tedy was
erroneously informed that Tan was the new owner of Lot 1.

As further alleged in the Complaint, the building constructed on Lot 1 is taller than the
Sps. Garcia's one-storey residential house. As such, the Sps. Santos' building allegedly
obstructed the Sps. Garcia's right to light, air, and view. The Sps. Garcia bemoaned
how, prior to the construction on Lot 1, they received enough bright and natural light
from their windows. The construction allegedly rendered the Sps. Garcia's house dark
such that they are unable to do their normal undertakings in the bedroom, living room
and other areas of the house without switching on their lights. The Sps. Garcia likewise
alleged that the said structure constructed on Lot 1 is at a distance of less than three
meters away from the boundary line, in alleged violation of their easement.
Furthermore, the Sps. Santos allegedly m de excavations on Lot 1 without providing
sufficient lateral support to the concrete perimeter fence of the Sps. Garcia.

Hence, in their Complaint, aside from asking for damages, the Sps. Garcia prayed that:
the RTC declare them as having acquired the easement of light, air, and view against
Lot 1; the respondents be prohibited from constructing any structure on Lot 1 taller
than the Sps. Garcia's one-storey residential house; the respondents be prohibited from
building any structure on Lot 1 at a distance of less than three meters from the
boundary line; and the respondents be prohibited from making excavations on Lot 1
that deprive sufficient lateral support to the fence located on the subject property.

On February 19, 2009, the RTC issued an Order8 granting a Temporary Restraining

Order (TRO) enjoining the Sps. Santos from further undertaking further construction
work on Lot 1. The TRO was eventually lifted on March 20, 2009. 9

In their Amended Answer with Counterclaim 10 dated February 27, 2009, the
respondents asserted that Tan was incorrectly impleaded, denying that Tan is involved
whatsoever in the matter at hand, with the latter not being the registered owner of Lot
1.

Further, the respondents argued that the Sps. Garcia failed to allege how they acquired
the easement of light and view either by prescription or title. The respondents
maintained that the mere presence of windows on the one-storey house of the Sps.
Garcia in itself does not give rise to an easement by title, stressing that there was no
tenement standing on Lot 1 at the time of the construction of the one-storey house
standing on the subject property. The respondents also argued that the Sps. Garcia
also failed to acquire an easement by prescription because they never alleged that they
made a formal prohibition of the construction of a taller structure on Lot 1.

With respect to the Sps. Garcia's claims on easement of lateral and subjacent support,
the respondents maintained that such claims are baseless because the excavation
works were all made within Lot 1 and were not deep enough to deprive the Sps. Garcia
subjacent and lateral support. Moreover, these excavations were already finished
without causing any damage to the Sps. Garcia's house.

The trial then ensued, with the Sps. Garcia presenting their testimonial and
documentary evidence.

The Sps. Santos' Demurrer to Evidence (CA-G.R. SP No. 06176)

After the Sps. Garcia rested their case, the Sps. Santos filed a Motion to Dismiss (By
Way of Demurrer to Evidence)11 which the RTC denied in its Order12 dated April 28,
2011.

The Sps. Santos then assailed the RTC's denial of their demurrer to evidence by filing a
petition for certiorari13 under Rule 65 of the Rules of Court before the CA. The petition
was raffled to the Twentieth Division and was docketed as CA-G.R. SP No. 06176.

In its Decision14 dated May 20, 2013, the CA, Twentieth Division denied
the certiorari petition of the Sps. Santos for failing to prove that the RTC committed
grave abuse of discretion in denying the respondents' demurrer to evidence.

The respondents filed a Motion for Reconsideration15 dated June 17, 2013, which was
denied by the CA, Special Former Twentieth Division in its Resolution 16 dated February
22, 2016. On March 31, 2016, the Decision dated May 20, 2013 rendered by the CA,
Twentieth Division became final and executory. 17

Afterwards, the trial ensued before the RTC, with the Sps. Santos presenting their
evidence.

The Ruling of the RTC

In its Decision18 dated May 28, 2015, the RTC ruled in favor of the Sps. Santos and
dismissed the Complaint. The dispositive portion of the aforesaid Decision reads: cralawred

WHEREFORE, EVERYTHING CONSIDERED, the herein complaint is

hereby DISMISSED, the counterclaims are likewise dismissed.

Costs de oficio.

SO ORDERED.19
chanRoblesvirtualLaw1ibrary

In sum, the RTC held that the Sps. Garcia never acquired any easement of light and
view either by title or by prescription.

Hence, the Sps. Garcia appealed the RTC's Decision before the CA, Special
18th Division.20 The appeal was docketed as CA-G.R. CEB-CV No. 05701.

The Ruling of the CA, Special 18th Division

In its assailed Decision, the CA, Special 18th Division denied the appeal for lack of merit,
the dispositive portion of which reads: cralawred

WHEREFORE, the appeal is DENIED. The 28 May 2015 Decision of the Regional Trial
Court of Iloilo City, Branch 31 in Civil Case No. 09-30023 is AFFIRMED.

SO ORDERED.21
chanRoblesvirtualLaw1ibrary

Agreeing  in toto  with the RTC, the CA held that the Sps. Garcia never acquired an
easement of light and view under the pertinent provisions of the Civil Code.

The Sps. Garcia filed a Motion for Reconsideration22 dated August 4, 2016, which was
denied by the CA, Former Special 18th Division in its assailed Resolution.

Hence, the instant Petition for Review on Certiorari filed by the Sps. Garcia under Rule
45 of the Rules of Court.

The respondents filed their Comment (To the Petition dated October 28, 2016) 23 dated
June 20, 2017, to which the Sps. Garcia responded with their Reply 24 dated November
9, 2017.
 Issues

Stripped to its core, the instant Petition presents two main issues for the Court's
disposition: (1) whether, in view of the CA, Twentieth Division's final and executory
Decision dated May 20, 2013 in CA-G.R. SP No. 06176, the doctrine of the law of the
case finds application; and (2) whether the Sps. Garcia have acquired an easement of
light and view with respect to Lot 1 owned by the Sps. Santos.

The Court's Ruling

In deciding the merits of the instant Petition, the Court shall resolve the issues
in seriatim.

I. The doctrine of the law of the case not applicable in the instant case

In the instant Petition, the Sps. Garcia make the argument that the doctrine of the law
of the case applies in the instant case, considering that the CA, Twentieth Division's
final and executory Decision dated May 20, 2013 in CA-G.R. SP No. 06176 expressly
and categorically found that ''[t]here is an acquired easement of light, air and view in
favor of [the Sps. Garcia]"25 based on Article 624 of the Civil Code 26 and the decided
cases of Amor v. Florentino27 and Gargantos v. Tan Yanon,28 and that "the contention of
[the respondents] that the mere opening of windows and doors does not constitute an
easement is therefore refuted."29

The argument is unmeritorious.

The doctrine of the law of the case states that whatever has once been irrevocably
established as the controlling legal rule of decision between the same parties in the
same case continues to be the law of the case, whether correct on general principles or
not, so long as the facts on which such decision was predicated continue to be the facts
of the case before the court.30

Citing Mercury Group of Co., Inc. v. Home Dev't Mutual Fund,31 the CA, Special
18th Division was correct in explaining that the aforesaid doctrine applies only when
there has been a prior decision on the merits: cralawred

"Law of the case" has been defined as the opinion delivered on a former appeal. . . . It
is a rule of general application that the decision of an appellate court in a case
is the law to the case on the points presented throughout all the subsequent
proceedings in the case in both the trial and appellate courts and no question
necessarily involved and decided on that appeal will be considered on a second appeal
or writ of error in the same case, provided the facts and issues are substantially the
same as those on which the first question rested and, according to some authorities,
provided the decision is on the merits. x x x32
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The CA, Twentieth Division's final and executory Decision dated May 20, 2013 relied
upon by the Sps. Garcia was not a final and executory decision on the merits of the
case as it dealt solely on the issue of whether the RTC committed grave abuse of
discretion in denying the respondents' demurrer to evidence.

In fact, the CA, Twentieth Division was unequivocal in explaining that it discussed "the
issue on easement of light, air and view not so much to address the merit of the
petition but to illustrate the extent by which [the Sps. Garcia] have relentlessly pursued
their claim."33

Hence, the first issue posed by the Sps. Garcia is denied.

II. The easement of light and view imposed on Lot 1 acquired by the Sps.
Garcia

Having disposed of the first issue, the Court shall now decide whether the Sps. Garcia
have indeed acquired an easement of light and view, imposing a burden on Lot 1 not to
obstruct the subject property's free access to light and view. The Court notes that the
issues surrounding the alleged easement of lateral and subjacent support were no
longer pursued by the Sps. Garcia in the instant Petition. Hence, the Court's Decision
shall focus exclusively on the easement of light and view purportedly acquired by the
Sps. Garcia as against the Sps. Santos' Lot 1.

Considering that the jurisprudence on the concept of easements of light and view is not
in abundance, this is an opportune time for the Court to explain clearly and resolutely
the rules regarding the acquisition of an easement of light and view vis-a-vis several
parcels of land owned by separate owners that were previously owned by a single
owner, and the distances that must be observed in relation thereto.

The Concept of Easements and the Easement of Light and View

According to Article 613 of the Civil Code, an easement or servitude is an encumbrance

imposed upon an immovable for the benefit of another immovable belonging to a
different owner. The immovable in favor of which the easement is established is called
the dominant estate; that which is subject thereto, the servient estate.

As defined by jurisprudence, an easement is "a real right on another's property,

corporeal and immovable, whereby the owner of the latter must refrain from doing or
allowing somebody else to do or something to be done on his property, for the benefit
of another person or tenement. Easements are established either by law or by the will
of the owner. The former are called legal, and the latter, voluntary easements." 34 An
easement has been described as "a real right which burdens a thing with a prestation
consisting of determinate servitudes for the exclusive enjoyment of a person who is not
its owner or of a tenement belonging to another." 35

Legal easements are ones imposed by law, and which have, for their object, either
public use or interest of private persons, 36 as opposed to voluntary easements that are
established by the agreements of the parties. The different legal easements are: (a)
easement relating to waters; (b) right of way; (c) party wall; (d) light and view; (e)
drainage; (f) intermediate distances; (g) easement against nuisance; and (h) lateral
and subjacent support.37
The legal easement called easement of light and view refers to an easement whereby
the dominant estate enjoys the right to have free access to light, a little air, and a view
overlooking the adjoining estate, i.e., the servient estate.38

The easement of light and view has two components. The easement of light or jus
luminum has the purpose of admitting light and a little air, as in the case of small
windows, not more than 30 centimeters square, at the height of the ceiling joists or
immediately under the ceiling.39 On the other hand, the easement of view
or servidumbre prospectus40 has the principal purpose of affording view, as in the case
of full or regular windows overlooking the adjoining estate. 41

Explained otherwise, the easement of light is the right to make openings under certain
conditions in order to receive light from another's tenement while the easement of view
is the right to make openings or windows, to enjoy the view through the estate of
another and the power to prevent all constructions or works which would obstruct such
view or make the same difficult. 42 The easement of view is broader than the easement
of light because the latter is always included in the former. 43

As held by jurisprudence, the easement of light and view is intrinsically intertwined with
the easement of the servient estate not to build higher or altius non tollendi. These two
necessarily go together "because an easement of light and view requires that the owner
of the servient estate shall not build to a height that will obstruct the window." 44

In the instant case, the Sps. Garcia assert that since they have acquired by title an
easement of light and view, the owner of the adjacent servient estate, i.e., the Sps.
Santos, is proscribed from building a structure that obstructs the window of their one-
storey house.

Classification of Easements as Positive and Negative Easements

Article 616 of the Civil Code states that easements may be classified into positive and
negative easements. A positive easement is one which imposes upon the owner of the
servient estate the obligation of allowing something to be done or of doing it himself.
On the other hand, a negative easement is that which prohibits the owner of the
servient estate from doing something which he could lawfully do if the easement did not
exist.

What is the significance of determining whether an easement is positive or negative?

Such determination is consequential in determining how an easement is acquired.

According to Article 621 of the Civil Code, in order to acquire easements by prescription
in positive easements, the prescriptive period shall commence from the day on which
the owner of the dominant estate, or the person who may have made use of the
easement, commenced to exercise it upon the servient estate.

With respect to negative easements, the prescriptive period shall commence from the
day on which the owner of the dominant estate forbade, by an instrument
acknowledged before a notary public, the owner of the servient estate, from executing
an act which would be lawful without the easement.
Easement of Light and View as a Positive and Negative Easement

How then is an easement of light and view classified? Is it a positive or a negative

easement?

The answer is it may be both; an easement of light and view may either be positive or
negative.

As a general rule, an easement of light and view is a positive one if the window or
opening is situated in a party wall, while it is a negative one if the window or opening
is thru one's own wall,  i.e., thru a wall of the dominant estate.45 However, "[e]ven if
the window is on one's own wall, still the easement would be positive if the window is
on a balcony or projection extending over into the adjoining land." 46

In the instant case, it is not disputed that the windows and other openings, which are
allegedly now prevented from receiving light and view due to the structure built by the
Sps. Santos on Lot 1, are made in the wall of Sps. Garcia's one-storey-house. There is
no party wall alleged to be co-owned by the parties.

In the very early case of Cortes v. Yu-Tibo,47 the Court held that the easement of
light and view in the case of windows opened in one's own wall is negative. As
such easement is a negative one, it cannot be acquired by prescription except where
sufficient time of possession has elapsed after the owner of the dominant estate, by
a formal act, has prohibited the owner of the servient estate from doing something
which would be lawful but for the easement. 48

The phrase "formal act" would require not merely any writing, but one executed in due
form and/or with solemnity.49 This is expressly stated in Article 668 of the Civil Code
which states that the period of prescription for the acquisition of an easement of light
and view shall be counted: (1) from the time of the opening of the window, if it is
through a party wall; or (2) from the time of the formal prohibition upon the
proprietor of the adjoining land or tenement, if the window is through a wall
on the dominant estate.

It is from these legal premises that the RTC and CA, Special 18 th Division based their
holdings that the Sps. Garcia "never acquired an easement of light and view under
Article 668 of the Civil Code for failure to serve a notarial prohibition." 50 It is not
disputed that the Sps. Garcia never sent the Sps. Santos any formal notice or notarial
prohibition enjoining the latter from constructing any building of higher height on Lot 1.
Hence, the RTC and CA, Special 18th Division made the conclusion that the Sps. Garcia
failed to acquire an easement of light and view in relation to the adjacent Lot 1.

Nevertheless, the Court finds that the aforesaid holding of the RTC and CA, Special
18th Division is incorrect in view of Article 624 of the Civil Code.

Article 624 - The Existence of an Apparent Sign of Easement between Two Estates formerly
owned by a Single Owner considered a Title to Easement of Light and View
While it is a general rule that a window or opening situated on the wall of the dominant
estate involves a negative easement, and, thus, may only be acquired by prescription,
tacked from the time of the formal prohibition upon the proprietor of the servient
estate, it is not true that all windows or openings situated on the wall of the dominant
estate may only be acquired through prescription.

Aside from prescription, easements may likewise be acquired through title.51 The term

"title" does not necessarily mean a document. Instead, it refers to a juridical act or law
sufficient to create the encumbrance.52 One such legal proviso which grants title to an
easement is found in Article 624 of the Civil Code.

Article 624 of the Civil Code reads: cralawred

x x x. 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.

The aforesaid article is based on Article 541 of the Spanish Civil Code, which reads: cralawred

x x x. The existence of an apparent sign of an easement between two estates

established by the owner of both shall be considered, should one of them be alienated,
as a title for the active and passive continuation of the easement, unless, at the time of
the division of the ownership of the two properties, the contrary should be expressed in
the deed of conveyance of either of them, or the sign is obliterated before the execution
of the instrument.

The mode of acquiring an easement under Article 624 is a "legal presumption or

apparent sign."53 Article 624 finds application in situations wherein two or more estates
were previously owned by a singular owner, or even a single estate but with two or
more portions being owned by a singular owner. 54 Originally, there is no true easement
that exists as there is only one owner. Hence, at the outset, no other owner is imposed
with a burden.55 Subsequently, one estate or a portion of the estate is alienated in favor
of another person, wherein, in that estate or portion of the estate, an apparent
visible sign of an easement exists. According to Article 624, there arises a title to
an easement of light and view, even in the absence of any formal act
undertaken by the owner of the dominant estate, if this apparent visible sign,
such as the existence of a door and windows, continues to remain and subsist,
unless, at the time the ownership of the two estates is divided, ( 1) the contrary should
be provided in the title of conveyance of either of them, or (2) the sign aforesaid should
be removed before the execution of the deed..

This is precisely the situation that has occurred in the instant case. Prior to the
purchase of the subject property by the Sps. Garcia in 1998, the subject property and
its adjoining lot,  i.e., Lot 1, were both owned by singular owners, i.e., the Sps. Santos.
On the subject property, a one-storey house laden with several windows and openings
was built and the windows and openings remained open. Then on October 1998, the
subject property, together with the one-storey structure, was alienated in favor of the
Sps. Garcia, while the Sps. Santos retained the adjoining Lot 1.

Jurisprudence has recognized that Article 624 is an exception carved out by the Civil
Code that must be taken out of the coverage of the general rule that an easement of
light and view in the case of windows opened in one's own wall is a negative easement
that may only be acquired by prescription, tacked from a formal prohibition relayed to
the owner of the servient estate.

As explained in Amor v. Florentino, the very decision in  Cortes v. YuTibo, while holding
that the easement of light and view in situations involving openings situated on the wall
of the dominant estate is a negative easement that may only be acquired by
prescription tacked from formal prohibition, "distinguishes that case from the
situation foreseen in article 541 [now Article 624 of the Civil Code]."56

In Cortes v. Yu-Tibo, there were two different owners of two separate houses from the
beginning, which is a situation different from that presented under Article 624 where
there is only one original owner of the two structures. Cortes v. Yu-Tibo itself explicitly
differentiates the situation presented therein and the special situation contemplated
under then Article 541 of the Spanish Civil Code, which is now Article 624 of the Civil
Code, wherein no formal act is needed to acquire easement of light and view: cralawred

x x x It is true that the supreme court of Spain, in its decisions of February 7 and May
5, 1896, has classified as positive easements of lights which were the object of the suits
in which these decisions were rendered in cassation, and from these it might be
believed at first glance[,] that the former holdings of the supreme court upon this
subject had been overruled. But this is not so, as a matter of fact, inasmuch as there is
no conflict between these decisions and the former decisions above cited.

In the first of the suits referred to, the question turned upon two houses
which had formerly belonged to the same owner, who established a service of
light on one of them for the benefit of the other. These properties were
subsequently conveyed to two different persons, but at the time of the separation of
the property nothing was said as to the discontinuance of the easement, nor were the
windows which constituted the visible sign thereof removed. The new owner of the
house subject to the easement endeavored to free it from the incumbrance,
notwithstanding the fact that the easement had been in existence for thirty-five years,
and alleged that the owner of the dominant estate had not performed any act of
opposition which might serve as a starting point for the acquisition of a prescriptive
title. The supreme court, in deciding this case, on the 7th of February, 1896, held
that the easement in this particular case was positive, because it consisted in
the active enjoyment of the light. This doctrine is doubtless based upon article
541 of the Code, which is of the following tenor: "The existence of apparent sign of an
easement between two tenements, established by the owner of both of them, shall be
considered, should one be sold, as a title for the active and passive continuance of the
easement, unless, at the time of the division of the ownership of both tenements, the
contrary should be expressed in the deed of conveyance of either of them, or such sign
is taken away before the execution of such deed."
The word "active" used in the decision quoted in classifying the particular
enjoyment of light referred to therein, presupposes on the part of the owner of
the dominant estate a right to such enjoyment arising, in the particular case
passed upon by that decision, from the voluntary act of the original owner of
the two houses, by which he imposed upon one of them an easement for the
benefit of the other. It is well known that easements are established, among other
cases, by the will of the owners. (Article 536 of the Code) It was an act which was, in
fact, respected and acquiesced in by the new owner of the servient estate, since he
purchased it without making any stipulation against the easement existing thereon, but,
on the contrary, acquiesced in the continuance of the apparent sign thereof. As is
stated in the decision itself, "It is a principle of law that upon a division of a tenement
among various persons—in the absence of any mention in the contract of a mode of
enjoyment different from that to which the former owner was accustomed—such
easements as may be necessary for the continuation of such enjoyment are understood
to subsist." It will be seen, then, that the phrase "active enjoyment" involves an idea
directly opposed to the enjoyment which is the result of a mere tolerance on the part of
the adjacent owner, and which, as it is not based upon an absolute, enforceable right,
may be considered as of a merely passive character. Therefore, the decision in
question is not in conflict with the former rulings of the supreme court of
Spain upon the subject, inasmuch as it deals with an easement of light
established by the owner of the servient estate, and which continued in force
after the estate was sold, in accordance with the special provisions of article
541 of the Civil Code.57
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Application of the Court's Decisions in Amor v. Florentino, and Gargantos v. Tan Yanon to the
Instant Case

The rulings of the Court in Amor v. Florentino and Gargantos v. Tan Yanon, which

involve situations that are almost completely analogous to the instant case, are
enlightening.

In these cases, like the case at hand, several properties were once owned by a single
owner, wherein in one of the properties, a structure with windows and other openings
was put up. Subsequently, the adjacent property was transferred to a different owner,
wherein a structure was built thereon obstructing the windows and other openings
found on the adjacent lot.

In Amor v. Florentino, one Maria Florentino (Maria) owned a house and a camarin or
warehouse located in Vigan, Ilocos Sur. The house had, on the north side, three
windows on the upper storey, and a fourth one on the ground floor. Through these
windows, the house received light and air from the adjacent lot where
the camarin stood.

On September 6, 1885, Maria made a will, devising the house and the land on which it
was situated to Gabriel Florentino, one of the respondents therein, and to Jose
Florentino, father of the other respondents therein. In said will, the testatrix also
devised the warehouse and the lot where it was situated to Maria Encarnacion
Florentino (Maria Encarnacion). Upon the death of the testatrix in 1892, nothing was
said or done by the devisees in regard to the windows in question. On July 14, 1911,
Maria Encarnacion sold her lot and the warehouse thereon to the petitioner therein,
Severo Amor (Amor). In January 1938, therein Amor destroyed the old warehouse and
started to build instead a two-storey house.

In deciding the case, the Court first explained that easements may be acquired either
through title or prescription and enumerated the different acts by which an easement
may be acquired by virtue of title, namely: (1) a deed of recognition by the owner of
the servient estate; (2) a final judgment; and (3) an apparent sign between two
estates, established by the owner of both, referring to Article 541 (now Article
624) of the Civil Code. Citing decisions of the Supreme Tribunal of Spain, the Court
explained that "under article 541 [now Article 624] of the Civil Code, the visible and
permanent sign of an easement 'is the title that characterizes its
existence' ('es el titulo caracteristico de su existencia.')"58

Applying Article 541 (now Article 624) of the Civil Code, the Court held that the
existence of the four windows constructed on the subject house was an
apparent sign of an easement of light and view, the subsistence of which after the
lots were segregated to different owners created an easement of light and view by title
without the need of any formal notice to the servient estate. The Court explained
that the moment of the constitution of the easement of light and view,
together with that of altius non tollendi, was the time of the transfer of the
other property adjacent to the lot where the windows were located, which, in
that case, was the death of the original owner of both properties: cralawred

It will thus be seen that under article 541 the existence of the apparent sign in
the instant case, to wit, the four windows under consideration, had for all legal
purposes the same character and effect as a title of acquisition of the
easement of light and view by the respondents upon the death of the original
owner, Maria Florentino. Upon the establishment of that easement of light and view,
the concomitant and concurrent easement of altius non tollendi was also constituted,
the heir of the camarin and its lot, Maria Encarnacion Florentino, not having objected to
the existence of the windows. The theory of article 541, of making the existence of the
apparent sign equivalent to a title, when nothing to the contrary is said or done by the
two owners, is sound and correct, because as it happens in this case, there is an
implied contract between them that the easements in question should be
constituted.

Analyzing article 541 further, it seems that its wording is not quite felicitous when it
says that the easement should continue. Sound juridical thinking rejects such an idea
because, properly speaking, the easement is not created till the division of the
property, inasmuch as a predial or real easement is one of the rights in another's
property, or jura in re aliena and nobody can have an easement over his own
property, nemini sua res servit. In the instant case, therefore, when the original owner,
Maria Florentino, opened the windows which received light and air from another lot
belonging to her, she was merely exercising her right of dominion. Consequently, the
moment of the constitution of the easement of light and view, together with that
of altius non tollendi, was the time of the death of the original owner of both properties.
At that point, the requisite that there must be two proprietors — one of the dominant
estate and another of the servient estate was — fulfilled. 59
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Subsequently, in 1960, the Court rendered its Decision in the case of Gargantos v. Tan
Yanon.

In the said case, the late Francisco Sanz (Sanz) was the former owner of a parcel of
land with the buildings and improvements thereon, situated in the poblacion of
Romblon. He subdivided the lot into three (3) and then sold each portion to different
persons. One portion was purchased by Guillermo Tengtio who subsequently sold it to
Vicente Uy Veza. Another portion, with the house of strong materials thereon, was sold
in 1927 to Tan Yanon, the respondent therein. This house had on its northeastern side,
doors and windows overlooking the third portion, which, together with the camarin and
small building thereon, after passing through several hands, was finally acquired by
Juan Gargantos (Gargantos), the petitioner therein. In 1955, Gargantos tore down the
roof of the camarin and constructed a combined residential house and warehouse on his
lot.

The Court held that Article 538 (now Article 621) of the Civil Code and the doctrine
in Cortes v. Yu-Tibo that the easement of light and view in situations involving openings
situated on the wall of the dominant estate is a negative easement that may only be
acquired by prescription tacked from formal prohibition "[is] not applicable
herein because the two estates, that now owned by petitioner, and that owned by
respondent, were formerly owned by just one person, Francisco Sanz." 60

The Court further explained that the existence of the doors and windows on the
northeastern side of the house was equivalent to a title, for the visible and permanent
sign of an easement was the title that characterized its existence:cralawred

x x x It was Sanz who introduced improvements on both properties. On that portion

presently belonging to respondent, he constructed a house in such a way that the
northeastern side thereof extends to the wall of the camarin on the portion now
belonging to petitioner. On said northeastern side of the house, there are windows and
doors which serve as passages for light and view. These windows and doors were in
existence when respondent purchased the house and lot from Sanz. The deed of sale
did not provide that the easement of light and view would not be established. This
then is precisely the case covered by Article 541, O.C.C. (now Article 624,
N.C.C.) which provides that the existence of an apparent sign of easement
between two estates, established by the proprietor of both, shall be
considered, if one of them is alienated, as a title so that the easement will
continue actively and passively, unless at the time the ownership of the two
estates is divided, the contrary is stated in the deed of alienation of either of
them, or the sign is made to disappear before the instrument is executed. The
existence of the doors and windows on the northeastern side of the
aforementioned house, is equivalent to a title, for the visible and permanent
sign of an easement is the title that characterizes its existence (Amor vs.
Florentino, 74 Phil., 403). It should be noted, however, that while the law declares that
the easement is to "continue" the easement actually arises for the first time only upon
alienation of either estate, inasmuch as before that time there is no easement to speak
of, there being but one owner of both estates (Article 530, O.C.C., now Article 613,
N.C.C.).61
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From Amor v. Florentino and Gargantos v. Tan Yanon, read together with Cortes v. Yu-
Tibo, it has been jurisprudentially established that, in a situation wherein Article 624 of
the Civil Code applies, there arises an easement if an apparent sign of the existence of
an easement,  i.e., the existence of windows and openings on the dominant
estate, continues to remain even after the transfer of the property to the new
owner, unless such apparent sign is removed or if there is an agreement to the
contrary.62

To reiterate, such is exactly the situation attendant in the instant case. Lot 1 and the
subject property were once owned by one owner, i.e., the Sps. Santos. On the subject
property, a one-storey house with windows and other openings that accept light and
view from Lot 1, which was idle at that time, was built. Subsequently, in 1998, the
subject property was alienated in favor of the Sps. Garcia. It is undisputed that the
windows and other openings on the one-storey house subsisted and remained open. It
is also not disputed that there was no agreement made by the parties whatsoever to
the effect that the windows and openings of the Sps. Garcia's house should be closed or
removed.

Hence, in accordance with Article 624 of the Civil Code, from the time the Sps. Santos
transferred the subject property to the Sps. Garcia, there arose by title an easement of
light and view, placing a burden on the servient estate,  i.e., Lot 1, to allow the Sps.
Garcia's residence unobstructed access to light and view, subject to certain limitations
as will be discussed hereunder.

The core of the RTC and CA, Special 18th Division's Decisions dismissing the Sps.
Garcia's Complaint centers on the argument that the cases of Amor v. Florentino,
and Gargantos v. Tan Yanon  are not applicable to the instant case because in the latter,
"the previous owner only made improvements on the [subject property] of [the Sps.
Garcia] at the time of the transfer of the alleged dominant estate to [the Sps. Garcia.]
This takes the instant case out of the factual milieu
of Amor and Gargantos."63 According to the CA, Special 18th Division, "[t]he rulings
in Amor and Gargantos appear to be premised on the fact that the previous owner
made improvements on both properties prior to the transfer of one of these
properties."64

After a close reading of Amor v. Florentino and Gargantos v. Tan Yanon, the Court

holds that the RTC and CA, Special 18th Division were mistaken in not applying the
aforesaid cases to the instant case.

First and foremost, the subject Civil Code provision dealt with by these two cases, i.e.,
Article 624 (formerly Article 541) of the Civil Code, merely states that what is involved
in this particular situation is "an apparent sign of easement between two estates."65

There is nothing in the aforesaid provision that requires the presence or establishment

of structures or improvements on both estates at the time the ownership of the two
estates is divided. The conclusion of the CA, Special 18th Division that Article 624
applies only when the (future) servient estate has an improvement thereon at the time
of the transfer of the ownership of either or both of the estates finds no textual support.
What the law merely states is that there must be two estates that were once owned by
one owner, regardless of the existence of improvements in the (future) servient estate.
What law requires is that, at the time the ownership of the estates is divided, there
must be an apparent sign of easement that exists, such as a window, door, or other
opening, in the dominant estate.

As exhaustively explained by recognized Civil Law Commentator, former CA Justice

Eduardo P. Caguioa, the existence of an easement of light and view under Article 624 is
established as long as (1) there exists an apparent sign of servitude between two
estates; (2) the sign of the easement must be established by the owner of both
tenements; (3) either or both of the estates are alienated by the owner; and (4) at the
time of the alienation nothing is stated in the document of alienation contrary to the
easement nor is the sign of the easement removed before the execution of the
document: cralawred

x x x In this case[,] the owner of two estates has established an apparent sign of the
easement between two estates. It is apparent inasmuch as since it is the owner
establishing it in his own property in favor of an estate belonging to himself there is no
easement but merely an exercise of the right of ownership. Should, however, one or
both of the estates be alienated or after partition in case of a property owned in
common, then that sign established by the owner will constitute a title for the
establishment of the easement, both actively or passively, except in case the contrary
should be provided in the document of conveyance of either estate or in case before the
alienation is made the sign is removed by the owner. Hence, in order that this article
will apply[,] the following are the requisites: (1) That there exist an apparent sign
of servitude between two estates; (2) That the sign of the easement be
established by the owner of both tenements because the article will not apply
when the easement is established by a person different from the owner; (3)
That either or both of the estates are alienated by the owner; and (4) That at
the time of the alienation nothing is stated in the document of alienation
contrary to the easement nor is the sign of the easement removed before the
execution of the document.66
chanRoblesvirtualLaw1ibrary

It is evident that the prior existence of another structure or building in the other estate,
in addition to the apparent sign of easement existing on the dominant estate, is not a
requirement for the application of Article 624. What is clear from the foregoing is that
the hallmark of an easement of light and view established by an apparent sign of
easement under Article 624 is the existence of an apparent sign of servitude between
two estates, such as a window, door, or any other opening, that was established by the
common owner of both estates prior to the division of ownership of these estates.

Second, upon close reading of Amor v. Florentino and Gargantos v. Tan Yanon, there is

no holding whatsoever by the Court that the application of Article 624 (formerly Article
541) is restricted to situations wherein the servient estate previously contained
improvements or structures. The RTC and CA, Special 18 th Division failed to explain the
rationale for making a differentiation as to situations wherein the servient estate was
idle at the time of the division of the ownership of the two estates. Instead, the RTC
and CA, Special 18th Division merely nitpicked this singular factual difference and
concluded, without sufficient explanation, that the factual milieu of the instant case
differs from those of Amor v. Florentino and Gargantos v. Tan Yanon.
It must be stressed that the presence of a minor factual difference does not preclude
the application of judicial precedent. It must be explained how the factual difference in
a case makes the doctrine established in the decided case inapplicable therein. In the
instant case, the cases of Amor v. Florentino and Gargantos v. Tan Yanon clearly and
plainly explain that there arises an easement if an apparent sign of the existence of an
easement, i.e., the existence of windows and openings on the dominant estate,
continues to remain even after the transfer of the property to the new owner, without
making any holding whatsoever that there should have been a prior structure that was
put up on the servient estate. The fact that the existence of windows, doors, and other
openings on the dominant estate is the apparent sign of an existing easement is not
hinged whatsoever on the presence of structures on the adjacent servient estate. In
short, the fact in the aforesaid cases that the servient estates therein had existing
structures prior to the division of ownership is not a significant fact that is
determinative of the holdings of the Court.

In fact, the Court notes that in Amor v. Florentino, the improvement originally
constructed on the servient estate, i.e., the warehouse, was actually totally demolished
and that, after the transfer of ownership of the dominant estate, a new two-storey
house was thereafter built in its stead. This does not differ substantially from a situation
wherein new constructions are done in the servient estate that was previously
completely empty.

Further, in Gargantos v. Tan Yanon, the Court, in applying Article 624 of the Civil Code,
held that "[b]y reason of this easement, petitioner cannot construct on his land any
building."67 The Court did not say that the petitioner therein was barred only from
adding or increasing the height of existing structures or improvements.

Hence, considering the foregoing discussion, the RTC and CA, Special 18 th Division
committed an error in holding that the Sps. Garcia failed to acquire an easement of
light and view in the instant case. By virtue of Article 624 of the Civil Code and
applicable jurisprudence, the Court holds that the Sps. Garcia have acquired an
easement of light and view by title despite the lack of any formal notice or prohibition
made upon the owner of the servient estate.

The Three-Meter Distance Rule

Now that the existence of an easement of light and view has been established in favor
of the Sps. Garcia, the Court shall now delve on whether to grant Sps. Garcia's prayer
that "respondents should therefore remove from Lot 1 their building or structure which
blocks or impedes petitioners' air, light and view." 68

The Court answers the question with a qualified yes.

Based on Articles 66969 and 670 of the Civil Code, there are two kinds of windows: (1)
regular or full70 or direct view71 windows, and (2) restricted,72 or oblique or side
view73 windows. As for openings, they may be direct views — those openings which are
made on a wall parallel or almost parallel to the line that divides the estates, in such a
way that the neighboring tenement can be seen without putting out or turning the
head, or oblique views — those openings in a wall which form an angle to the boundary
line, and therefore of necessity requires in order to see the neighboring tenement to
thrust the head out of the opening and look to the right or left. 74 In the case at hand,
the openings found on the property of the Sps. Garcia offer a direct view of the
property of the respondents Sps. Santos.

In relation to direct view windows or openings, the Civil Code provides two distance
rules or distances that must be observed before they can be made or established.

Firstly, there is the two-meter distance rule under Article 670 of the Civil Code, which
provides: "[n]o windows, apertures, balconies, or other similar projections which afford
a direct view upon or towards an adjoining land or tenement can be made, without
leaving a distance of two meters between the wall in which they are made and such
contiguous property." This Article is to be read in conjunction with Article 671 as the
latter provides the mechanism by which the two-meter distance is to be measured, to
wit: "[t]he distances x x x shall be measured in cases of direct views from the outer line
of the wall when the openings do not project, from the outer line of the latter when
they do, and in cases of oblique views from the dividing line between the two
properties."

Hence, under Article 670, which is the general rule, when a window or any similar
opening affords a direct view of an adjoining land, the distance between the wall in
which such opening is made and the border of the adjoining land should be at least two
meters.

Similarly, Republic Act No. 6541 as revised by Presidential Decree No. 1096 or the
National Building Code of the Philippines provides the same two-meter distance
requirement pursuant to Section 708(a), which provides that: "[t]he dwelling shall
occupy not more than ninety percent of a comer lot and eighty percent of an inside lot,
and subject to the provisions on Easement of Light and View of the Civil Code of the
Philippines, shall be at least 2 meters from the property line."

Secondly, the three-meter distance rule is embodied in Article 673 of the Civil Code,
which states that whenever by any title a right has been acquired to have direct views,
balconies or belvederes overlooking an adjoining property, the owner of the servient
estate cannot build thereon at less than a distance of three meters, not two
meters, from the property line, to be measured in the manner provided in
Article 671. Article 673 of the Civil Code reads: cralawred

ART. 673. Whenever by any title a right has been acquired to have direct views,
balconies or belvederes overlooking an adjoining property, the owner of the servient
estate cannot build thereon at less than a distance of three meters to be measured in
the manner provided in Article 671. Any stipulation permitting distances less than those
prescribed in Article 670 is void.

Article 673 is the exception to the general rule. In a situation wherein an easement is
established or recognized by title or prescription, affording the dominant estate the
right to have a direct view overlooking the adjoining property, i.e., the servient estate,
which is the exact situation in the instant case, the two-meter requirement under
Article 670 is not applicable. Instead, Article 673 is the applicable rule as it
contemplates the exact circumstance attendant in the instant case, i.e., wherein an
easement of view is created by virtue of law.
This provision has already been previously applied to easements of light and view
acquired under Article 624. In Gargantos v. Tan Yanon, the Court held that since
"[therein] respondent Tan Yanon's property has an easement of light and view against
petitioner's property[, b]y reason of this easement [under Article 624], [therein
Gargantos] cannot construct on his land any building unless he erects it at a
distance of not less than three meters from the boundary line separating the
two estates."75

To reiterate, as Article 673 states a special rule covering a situation wherein a dominant
estate has acquired a right "to have direct views, balconies or belvederes, overlooking
the adjoining property, the owner of the servient estate may not build on his own
property except at a distance of at least three meters from the boundary line," 76 the
two-meter distance as provided in Article 670 is not enough. The distance between the
structures erected on the servient estate and the boundary line of the adjoining estate
must be at least three meters.

In the instant case, the records show that Roberto Planton Baradas (Baradas), the
construction project engineer who supervised the construction of the Sps. Santos'
house located on Lot 1, testified that "[t]here is a distance of two meters between
[the Sps. Garcia's] fence and the wall of [the respondents] spouses Santos." 77 Simply
stated, the distance between the structure erected by the Sps. Santos on Lot 1 and the
boundary line is only two meters, which is less than the three-meter distance required
under Article 673.

Therefore, considering that the Sps. Garcia have acquired by title an easement of light
and view in accordance with Article 624 of the Civil Code, the Sps. Santos should
necessarily demolish or renovate portions of their residential building so that
the three-meter distance rule as mandated under Article 673 of the Civil Code
is observed.

WHEREFORE, the instant appeal is hereby GRANTED. The Decision dated June 30,
2016 and Resolution dated October 5, 2016 of the Court of Appeals in CA-G.R. CEB-CV
No. 05701 are hereby REVERSED AND SET ASIDE. Necessarily, the Decision dated
May 28, 2015 rendered by the Regional Trial Court of Iloilo City, Branch 31 is
likewise REVERSED AND SET ASIDE.

The Court declares the EXISTENCE OF AN EASEMENT OF LIGHT AND VIEW in favor

of the petitioners Sps. Tedy and Pilar Garcia. The respondents Sps. Loreta and Winston
Santos are hereby ordered to REMOVE from Lot 1 such portions of their building or
structure in order to comply with the three-meter rule as mandated under Article 673 of
the Civil Code.

No pronouncement as to costs.

SO ORDERED.
 [G.R. No. 183719 : February 02, 2011]

MARGARITA F. CASTRO, PETITIONER, VS. NAPOLEON A. MONSOD,

RESPONDENT.

DECISION

NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court, assailing the Decision[1] dated May 25, 2007 and the Resolution[2] dated July 14,
2008 of the Court of Appeals (CA) in CA-G.R. CV No. 83973.

The antecedents of the case are as follows:

Petitioner is the registered owner of a parcel of land located on   Garnet Street,
Manuela Homes, Pamplona, Las Piñas City, and covered by Transfer Certificate of Title
(TCT) No. T-36071, with an area of one hundred thirty (130) square meters (sq.m.). 
Respondent, on the other hand, is the owner of the property adjoining the lot of
petitioner, located on Lyra Street, Moonwalk Village, Phase 2, Las Piñas City.  There is
a concrete fence, more or less two (2) meters high, dividing Manuela Homes from
Moonwalk Village.[3]

On February 29, 2000, respondent caused the annotation of an adverse claim against
sixty-five (65) sq.m. of the property of petitioner covered by TCT No. T-36071. The
adverse claim was filed without any claim of ownership over the property. Respondent
was merely asserting the existing legal easement of lateral and subjacent support at
the rear portion of his estate to prevent the property from collapsing, since his property
is located at an elevated plateau of fifteen (15) feet, more or less, above the level of
petitioner's property.[4] Respondent also filed a complaint for malicious mischief and
malicious destruction before the office of the barangay chairman.[5]

In defiance, petitioner filed a complaint for damages with temporary restraining

order/writ of preliminary injunction before the Regional Trial Court (RTC) of Las Piñas
City. Petitioner also prayed that the Register of Deeds of Las Piñas City be ordered to
cancel the annotation of the adverse claim on TCT No. T-36071. [6]

Prior to the filing of the case before the RTC, there were deposits of soil and rocks
about two (2) meters away from the front door of the house of

petitioner. As such, petitioner was not able to park her vehicle at the dead-end portion
of Garnet Street. When petitioner noticed a leak that caused the front portion of her
house to be slippery, she hired construction workers to see where the leak was coming
from. The workers had already started digging when police officers sent by respondent
came and stopped the workers from finishing their job. [7]

Petitioner averred that when she bought the property from Manuela Homes in 1994,
there was no annotation or existence of any easement over the property. Respondent
neither asked permission nor talked to her with regard to the use of 65 sq.m. of her
property as easement.  Upon learning of the adverse claim, she felt disturbed and
experienced sleepless nights for fear that she would not be able to sell her property. 
Petitioner admitted that TCT No. 36071 does not cover the open space at the dead-end
portion of Garnet Street.[8]

For his part, respondent claimed that he and his family had been residing in Moonwalk
Village since June 1984. Adjacent to his property is the land of petitioner in Manuela
Homes. When he bought the property in 1983, the land elevation of Moonwalk Village
was almost on the same level as Manuela Homes. However, sometime in 1985 and
1986, Pilar Development Corporation, the developer of Manuela Homes, bulldozed,
excavated, and transferred portions of the elevated land to the lower portions of
Manuela Homes. Thus, Manuela Homes became lower than Moonwalk Village. [9]

Before the said excavation, respondent personally complained to Pilar

Development Corporation and was assured that, as provided by the National Building
Code, an embankment will be retained at the boundary of Manuela Homes and
Moonwalk Village, which is more or less fifteen (15) feet higher than Manuela Homes. [10]

Manuela Homes retained the embankment consisting of soil and rocks. Respondent had
the open space riprapped with stones as reinforcement against any potential soil
erosion, earthquake, and possible digging by any person.

Respondent asserted that the affidavit of adverse claim was for the annotation of the
lateral and subjacent easement of his property over the property of petitioner, in view
of the latter's manifest determination to remove the embankment left by the developer
of Manuela Homes.

On October 11, 2004, the RTC rendered a decision, [11] the dispositive portion of which
reads:

WHEREFORE, premises considered, this court hereby renders judgment: (1) ordering
the cancellation of [respondent's] adverse claim at the back of Transfer Certificate of
Title No. T-36071 at the expense of [respondent] Napoleon Monsod; (2) ordering the
said [respondent] to pay the herein [petitioner] the amount of Php50,000.00 as moral
damages; and (3) dismissing [petitioner's] claim for actual damages, attorney's fees,
litigation costs and costs of suit and [respondent's] compulsory counterclaim for lack of
merit.

SO ORDERED.[12]

The trial court ratiocinated that the adverse claim of respondent was non-registrable
considering that the basis of his claim was an easement and not an interest adverse to
the registered owner, and neither did he contest the title of petitioner. Furthermore, the
adverse claim of respondent failed to comply with the requisites provided under Section
70 of Presidential Decree No. 1529. [13]

On appeal, the CA reversed the decision of the trial court in a Decision [14] dated May 25,
2007, the fallo of which reads:
WHEREFORE, premises considered, the instant appeal is GRANTED. The Decision of
the Regional Trial Court, Branch 198, Las Piñas City dated October 11, 2004
is REVERSED and SET ASIDE. The Court hereby orders the retention of the
annotation at the back of Transfer Certificate of Title No. T-36071, not as an adverse
claim, but a recognition of the existence of a legal easement of subjacent and lateral
support constituted on the lengthwise or horizontal land support/embankment area of
sixty-five (65) square meters, more or less, of the property of [petitioner] Margarita
Castro. The writ of preliminary injunction issued by this Court on April 18, 2006 is
hereby made permanent. [Petitioner's] claim for damages is likewise DISMISSED.

SO ORDERED.[15]

The CA ruled that while respondent's adverse claim could not be sanctioned because it
did not fall under the requisites for registering an adverse claim, the same might be
duly annotated in the title as recognition of the existence of a legal easement of
subjacent and lateral support. The purpose of the annotation was to prevent petitioner
from making injurious excavations on the subject embankment as to deprive the
residential house and lot of respondent of its natural support and cause it to collapse.
Respondent only asked that petitioner respect the legal easement already existing
thereon.[16]

On June 15, 2007, petitioner filed a motion for reconsideration. However, the CA denied
the same in a Resolution[17] dated July 14, 2008.

Hence, this petition.

The issue in this case is whether the easement of lateral and subjacent support exists
on the subject adjacent properties and, if it does, whether the same may be annotated
at the back of the title of the servient estate.

Article 437 of the Civil Code provides that the owner of a parcel of land is the owner of
its surface and of everything under it, and he can construct thereon any works, or make
any plantations and excavations which he may deem proper. However, such right of the
owner is not absolute and is subject to the following limitations:  (1)  servitudes or
easements,[18](2)  special laws,[19]  (3)  ordinances,[20] (4) reasonable requirements of
aerial navigation,[21] and (5)  rights of third persons.[22]

Respondent filed before the RTC an affidavit of adverse claim, the pertinent portions of
which read:

5. That our adverse claim consists of rights of legal or compulsory easement of lateral
and subjacent support (under the Civil Code) over a portion of the above-described
property of owner Margarita F. Castro, that is, covering the lengthwise or horizontal
land support/embankment area of sixty-five (65) square meters, more or less.

6. That said registered owner has attempted to destroy and/or remove portions of the
existing lateral/subjacent land and cement supports adjoining the said two properties.
In fact, a portion of the easement was already destroyed/removed, to the continuing
prejudice of herein adverse claimant, and that a formal complaint against said
registered owner was filed by the herein adverse claimant before the Office of the
Barangay Chairman of Talon V, Las Piñas City and the same proved futile. [23]

Respondent's assertion that he has an adverse claim over the 65 sq.m. property of
petitioner is misplaced since he does not have a claim over the ownership of the land.
The annotation of an adverse claim over registered land under Section 70 of
Presidential Decree 1529[24]  requires a claim on the title of the disputed land.
Annotation is done to apprise third persons that there is a controversy over the
ownership of the land and to preserve and protect the right of the adverse claimant
during the pendency of the controversy. It is a notice to third persons that any
transaction regarding the disputed land is subject to the outcome of the dispute. [25]

In reality, what respondent is claiming is a judicial recognition of the existence of the

easement of subjacent and lateral support over the 65 sq. m. portion of petitioner's
property covering the land support/embankment area. His reason for the annotation is
only to prevent petitioner from removing the embankment or from digging on the
property for fear of soil erosion that might weaken the foundation of the rear portion of
his property which is adjacent to the property of petitioner.

An easement or servitude is an encumbrance imposed upon an immovable for the

benefit of another immovable belonging to a different owner. [26] There are two kinds of
easements according to source. An easement is established either by law or by will of
the owners.[27] The courts cannot impose or constitute any servitude where none
existed. They can only declare its existence if in reality it exists by law or by the will of
the owners. There are therefore no judicial easements. [28]

Article 684 of the Civil Code provides that no proprietor shall make such excavations
upon his land as to deprive any adjacent land or building of sufficient lateral or
subjacent support. An owner, by virtue of his surface right, may make excavations on
his land, but his right is subject to the limitation that he shall not deprive any adjacent
land or building of sufficient lateral or subjacent support. Between two adjacent
landowners, each has an absolute property right to have his land laterally supported by
the soil of his neighbor, and if either, in excavating on his own premises, he so disturbs
the lateral support of his neighbor's land as to cause it, or, in its natural state, by the
pressure of its own weight, to fall away or slide from its position, the one so excavating
is liable.[29]

In the instant case, an easement of subjacent and lateral support exists in favor of
respondent.  It was established that the properties of petitioner and respondent adjoin
each other. The residential house and lot of respondent is located on an elevated
plateau of fifteen (15) feet above the level of petitioner's property. The embankment
and the riprapped stones have been in existence even before petitioner became the
owner of the property. It was proven that petitioner has been making excavations and
diggings on the subject embankment and, unless restrained, the continued excavation
of the embankment could cause the foundation of the rear portion of the house of
respondent to collapse, resulting in the destruction of a huge part of the family
dwelling.[30]

We sustain the CA in declaring that a permanent injunction on the part of petitioner

from making injurious excavations is necessary in order to protect the interest of
respondent. However, an annotation of the existence of the subjacent and lateral
support is no longer necessary. It exists whether or not it is annotated or registered in
the registry of property. A judicial recognition of the same already binds the property
and the owner of the same, including her successors-in-interest. Otherwise, every
adjoining landowner would come to court or have the easement of subjacent and lateral
support registered in order for it to be recognized and respected.

WHEREFORE, in view of the foregoing, the Decision dated May 25, 2007 and the
Resolution dated July 14, 2008 of the Court of Appeals in CA-G.R. CV No. 83973 are
hereby AFFIRMED WITH MODIFICATION that the annotation at the back of Transfer
Certificate of Title No. T-36071, recognizing the existence of the legal easement of
subjacent and lateral support constituted on the lengthwise or horizontal land
support/embankment area of sixty-five (65) square meters, more or less, of the
property of petitioner Margarita F. Castro, is hereby ordered removed.

SO ORDERED.

G.R. No. 188213, January 11, 2016

NATIVIDAD C. CRUZ AND BENJAMIN DELA CRUZ, Petitioners, v. PANDACAN

HIKER'S CLUB, INC., REPRESENTED BY ITS PRESIDENT,
PRISCILAILAO, Respondent.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking to annul and set aside the Court of Appeals Decision 1 dated March 31,
2008 in CA-G.R. SP. No. 104474. The appellate court reversed and set aside the earlier
decision of the Office of the Ombudsman dismissing the complaint filed against
petitioners.

Below are the facts of the case.

Petitioner Natividad C. Cruz (Cruz) was Punong Barangay or Chairperson of Barangay

848, Zone 92, City of Manila.2 On November 10, 2006, around five o'clock in the
afternoon, and along Central Street, Pandacan, Manila, within the vicinity of her
barangay, she allegedly confronted persons playing basketball with the following
statements:

Bakit nakabukas ang (basketball) court? Wala kayong karapatang maglaro sa court na
'to, barangay namin ito! xxx xxx xxx Wala kayong magagawa. Ako ang chairman dito.
Mga walanghiya kayo, patay gutom! Hindi ako natatakot! Kaya kong panagutan lahat!3 chanrobleslaw

Then, she allegedly gave an order to the other petitioner, Barangay Tanod Benjamin

dela Cruz (Dela Cruz), to destroy the basketball ring by cutting it up with a hacksaw
which Dela Cruz promptly complied with, thus, rendering the said basketball court
unusable.4 chanroblesvirtuallawlibrary

The acts of petitioners prompted the filing of a Complaint (for Malicious Mischief, Grave
Misconduct, Conduct Prejudicial to the Best Interest of the Service and Abuse o.f
Authority)5 before the Prosecutor's Office and the Office of the Ombudsman by the
group that claims to be the basketball court's owners, herein respondents Pandacan
Hiker's Club, Inc. (PHC) and its president Priscila Ilao (Ilao). In the complaint, they
alleged that PHC, a non-stock, non-profit civic organization engaged in "health,
infrastructure, sports and other so-called poverty alleviation activities" in the Pandacan
area of Manila, is the group that had donated, administered and operated the subject
basketball court for the Pandacan community until its alleged destruction by
petitioners.6 chanroblesvirtuallawlibrary

The complaint averred that the damage caused by petitioners was in the amount of
around P2,000.00. It was supported by the affidavits of ten (10) members of PHC who
allegedly witnessed the destruction. Meanwhile, respondent Ilao added that the acts of
petitioner Cruz, the Barangay Chairperson, of ordering the cutting up of the basketball
ring and uttering abusive language were "unwarranted and unbecoming of a public
official."7 chanroblesvirtuallawlibrary

In answer to the complaint, Cruz alleged that the basketball court affected the peace in
the barangay and was the subject of many complaints from residents asking for its
closure. She alleged that the playing court blocked jeepneys from passing through and
was the site of rampant bettings and fights involving persons from within and outside
the barangay. She claimed that innocent persons have been hurt and property had
been damaged by such armed confrontations, which often involved the throwing of
rocks and improvised "molotov" bombs. She also averred that noise from the games
caused lack of sleep among some residents and that the place's frequent visitors used
the community's fences as places to urinate. Cruz maintained that the court's users
never heeded the barangay officials' efforts to pacify them and when the basketball ring
was once padlocked, such was just removed at will while members of the complainants'
club continued playing. When Cruz asked for the PHC to return the steel bar and
padlock, the request was simply ignored, thus, prompting her to order Dela Cruz to
destroy the basketball ring. The destruction was allegedly also a response to the
ongoing clamor of residents to stop the basketball games. 8 Cruz denied allegations that
she shouted invectives at the PHC members. In support of her answer, Cruz attached
copies of the complaints, a "certification" and letters of barangay residents asking for a
solution to the problems arising from the disruptive activities on the said playing
venue.9chanroblesvirtuallawlibrary

After the parties' submission of their respective Position Papers, 10 the Office of the
Ombudsman rendered its Decision11 dated April 26, 2007 dismissing the complaint filed
by Ilao, et al. The Ombudsman found that the act of destroying the basketball ring was
only motivated by Cruz and Dela Cruz performing their sworn duty, as defined in the
Local Government Code.12 It found the act to be a mere response to the clamor of
constituents.13 The office found that though the cutting of the ring was "drastic," it was
done by the barangay officials within their lawful duties, as the act was only the result
of the unauthorized removal of and failure to return the steel bar and padlock that were
earlier placed thereon.14 Neither did the office give credence to the allegation that Cruz
uttered invectives against the complainants' witnesses, noting that the said witnesses
are tainted by their personal animosity against the barangay officials. 15 chanroblesvirtuallawlibrary

After the Ombudsman's ruling dismissing the complaint filed against Cruz and Dela
Cruz, the complainants Ilao, et al. filed a petition for review before the Court of Appeals
praying for the latter court to nullify the Ombudsman's decision. 16 The petition's thesis
was that any actions in furtherance of the community's welfare must be approved by
ordinance and that unless a thing is a nuisance per se, such a thing may not be abated
via an ordinance and extrajudicially.17 chanroblesvirtuallawlibrary

Commenting on the petition for review, the Office of the Ombudsman, through the
Office of the Solicitor General, averred that Section 389 of the Local Government Code,
which defines the powers, duties and functions of the punong barangay, among which
are the power to enforce all laws and ordinances applicable within the barangay and the
power to maintain public order in the barangay and, in pursuance thereof, to assist the
city or municipal mayor and the sanggunian members in the performance of their duties
and functions, does not require an ordinance for the said official to perform said
functions.18 The acts were also in pursuance of the promotion of the general welfare of
the community, as mentioned in Section 16 of the Code. 19 chanroblesvirtuallawlibrary

In its assailed Decision dated March 31, 2008, the Court of Appeals reversed and set
aside the decision of the Office of the Ombudsman. The appellate court found petitioner
Natividad C. Cruz liable for conduct prejudicial to the best interest of the service and
penalized her with a suspension of six (6) months and one (1) day, while it
reprimanded the other petitioner Benjamin dela Cruz, and also warned both officials
that a future repetition of the same or similar acts will be dealt with more severely.

The appellate court sustained the contentions of Ilao, et al. that Cruz and Dela Cruz
performed an abatement of what they thought was a public nuisance but did the same
without following the proper legal procedure, thus making them liable for said acts. 20 It
held Cruz to be without the power to declare a thing a nuisance unless it is a
nuisance per se.21 It declared the subject basketball ring as not such a nuisance and,
thus, not subject to summary abatement. The court added that even if the same was to
be considered a nuisance per accidens, the only way to establish it as such is after a
hearing conducted for that purpose.22 chanroblesvirtuallawlibrary

A motion for reconsideration, filed by Cruz and Dela Cruz was likewise denied by the
appellate court.23 Hence, they filed this petition.

Petitioners maintain that they acted merely with the intention to regain free passage of
people and vehicles over the street and restore the peace, health and sanitation of
those affected by the basketball court. Cruz, in particular, asserts that she merely
abated a public nuisance which she claimed was within her power as barangay chief
executive to perform and was part of her duty to maintain peace and order. 24 chanroblesvirtuallawlibrary

We deny the petition.

Under normal circumstances, this Court would not disturb the findings of fact of the
Office of the Ombudsman when they are supported by substantial evidence. 25 However,
We make an exception of the case at bar because the findings, of fact of the
Ombudsman and the Court of Appeals widely differ.26 chanroblesvirtuallawlibrary
It is held that the administrative offense of conduct prejudicial to the interest of the
service is committed when the questioned conduct tarnished the image and integrity of
the officer's public office; the conduct need not be related or connected to the public
officer's official functions for the said officer to be meted the corresponding
penalty.27 The basis for such liability is Republic Act No. 6713, or the Code of Conduct
and Ethical Standards for Public Officials and Employees, particularly Section 4 (c)
thereof, which ordains that public officials and employees shall at all times respect the
rights of others, and shall refrain from doing acts contrary to public safety and public
interest.28 In one case, this Court also stated that the Machiavellian principle that "the
end justifies the means" has no place in government service, which thrives on the rule
of law, consistency and stability.29 chanroblesvirtuallawlibrary

For these reasons, in the case at bar, We agree with the appellate court that the
petitioners' actions, though well-intentioned, were improper and done in excess of what
was required by the situation and fell short of the aforementioned standards of behavior
for public officials.

It is clear from the records that petitioners indeed cut or sawed in half the subject
basketball ring, which resulted in the destruction of the said equipment and rendered it
completely unusable.30 Petitioners also moved instantaneously and did not deliberate
nor consult with the Sangguniang Barangay prior to committing the subject acts;
neither did they involve any police or law enforcement agent in their actions. They
acted while tempers were running high as petitioner Cruz, the Barangay Chairperson,
became incensed at the removal of the steel bar and padlock that was earlier used to
close access to the ring and at the inability or refusal of respondents' group to return
the said steel bar and padlock to her as she had ordered.

The destructive acts of petitioners, however, find no legal sanction. This Court has ruled
time and again that no public official is above the law. 31 The Court of Appeals correctly
ruled that although petitioners claim to have merely performed an abatement of a
public nuisance, the same was done summarily while failing to follow the proper
procedure therefor and for which, petitioners must be held administratively liable.

Prevailing jurisprudence holds that unless a nuisance is a nuisance per se, it may not be
summarily abated.32 chanroblesvirtuallawlibrary

There is a nuisance when there is "any act, omission, establishment, business,

condition of property, or anything else which: (1) injures or endangers the health or
safety of others; or (2) annoys or offends the senses; or (3) shocks, defies or
disregards decency or morality; or (4) obstructs or interferes with the free passage of
any public highway or street, or any body of water; or (5) hinders or impairs the use of
property."33 But other than the statutory definition, jurisprudence recognizes that the
term "nuisance" is so comprehensive that it has been applied to almost all ways which
have interfered with the rights of the citizens, either in person, property, the enjoyment
of his property, or his comfort.34 chanroblesvirtuallawlibrary

A nuisance is classified in two ways: (1) according to the object it affects; or (2)
according to its susceptibility to summary abatement.
As for a nuisance classified according to the object or objects that it affects, a nuisance
may either be: (a) a public nuisance, i.e., one which "affects a community or
neighborhood or any considerable number of persons, although the extent of the
annoyance, danger or damage upon individuals may be unequal"; or (b) a private
nuisance, or one "that is not included in the foregoing definition" which, in
jurisprudence, is one which "violates only private rights and produces damages to but
one or a few persons."35 chanroblesvirtuallawlibrary

A nuisance may also be classified as to whether it is susceptible to a legal summary

abatement, in which case, it may either be: (a) a nuisance per se, when it affects the
immediate safety of persons and property, which may be summarily abated under the
undefined law of necessity;36 or, (b) a nuisance per accidens, which "depends upon
certain conditions and circumstances, and its existence being a question of fact, it
cannot be abated without due hearing thereon in a tribunal authorized to decide
whether such a thing does in law constitute a nuisance;"37 it may only be so proven in a
hearing conducted for that purpose and may not be summarily abated without judicial
intervention.38
chanroblesvirtuallawlibrary

In the case at bar, none of the tribunals below made a factual finding that the
basketball ring was a nuisance per se that is susceptible to a summary abatement. And
based on what appears in the records, it can be held, at most, as a mere nuisance per
accidens, for it does not pose an immediate effect upon the safety of persons and
property, the definition of a nuisance per se. Culling from examples cited in
jurisprudence, it is unlike a mad dog on the loose, which may be killed "on sight
because of the immediate danger it poses to the safety an.d lives of the people; nor is
it like pornographic materials, contaminated meat and narcotic drugs which are
inherently pernicious and which may be summarily destroyed; nor is it similar to a filthy
restaurant which may be summarily padlocked in the interest of the public health. 39 A
basketball ring, by itself, poses no immediate harm or danger to anyone but is merely
an object of recreation. Neither is it, by its nature, injurious to rights of property, of
health or of comfort of the community and, thus, it may not be abated as a nuisance
without the benefit of a judicial hearing. 40 chanroblesvirtuallawlibrary

But even if it is assumed, ex gratia argumenti, that the basketball ring was a
nuisance per se, but without posing any immediate harm or threat that required
instantaneous action, the destruction or abatement performed by petitioners failed to
observe the proper procedure for such an action which puts the said act into legal
question.

Under Article 700 of the Civil Code, the abatement, including one without judicial
proceedings, of a public nuisance is the responsibility of the district health officer.
Under Article 702 of the Code, the district health officer is also the official who shall
determine whether or not abatement, without judicial proceedings, is the best remedy
against & public nuisance. The two articles do not mention that the chief executive of
the local government, like the Punong Barangay, is authorized as the official who can
determine the propriety of a summary abatement.

Further, both petitioner Cruz, as Punong Barangay, and petitioner Dela Cruz, as
Barangay Tanod, claim to have acted in their official capacities in the exercise of their
powers under the general welfare clause of the Local Government Code. However,
petitioners could cite no barangay nor city ordinance that would have justified their
summary abatement through the exercise of police powers found in the said clause. No
barangay nor city ordinance was violated; neither was there one which specifically
declared the said basketball ring as a nuisance per se that may be summarily abated.
Though it has been held that a nuisance per se may be abated via an ordinance,
without judicial proceedings,41 We add that, in the case at bar, petitioners were
required to justify their abatement via such an ordinance because the power they claim
to have exercised - the police power under the general welfare clause - is a power
exercised by the government mainly through its legislative, and not the executive,
branch. The prevailing jurisprudence is that local government units such as the
provinces, cities, municipalities and barangays exercise police power through their
respective legislative bodies.42
chanroblesvirtuallawlibrary

The general welfare clause provides for the exercise of police power for the attainment
or maintenance of the general welfare of the community. The power, however, is
exercised by the government through its legislative branch by the enactment of laws
regulating those and other constitutional and civil rights. 43 Jurisprudence defines police
power as the plenary power vested in the legislature to make statutes and
ordinances to promote the health, morals, peace, education, good order or safety and
general welfare of the people.44 The Latin maxim is salus populi est suprema lex (the
welfare of the people is the supreme law).45 Police power is vested primarily with the
national legislature, which may delegate the same to local governments through the
enactment of ordinances through their legislative bodies (the  sanggunians)46 The so-
called general welfare clause, provided for in Section 16 of the Local Government Code,
provides for such delegation of police power, to wit:

Section 16. General Welfare. Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial
jurisdictions, local government units shall ensure and support, among other things, the
preservation and enrichment of culture, promote health and safety, enhance the right
of the people to a balanced ecology, encourage and support the development of
appropriate and self-reliant scientific and technological capabilities, improve public
morale, enhance economic prosperity and social justice, promote full employment
among their residents, maintain peace and order, and preserve the comfort and
convenience of their inhabitants.

Flowing from this delegated police power of local governments, a local government unit
like Barangay 848, Zone 92 in which petitioners were public officials, exercises police
power through its legislative body, in this case, its Sangguniang
Barangay.47 Particularly, the ordinances passed by the sanggunian  partly relate to the
general welfare of the barangay, as also provided for by the Local Government Code as
follows:

Section 391. Powers, Duties, and Functions. -

(a) The sangguniang barangay, as the legislative body of the barangay, shall: ChanRoblesVirtualawlibrary
(1) Enact ordinances as may be necessary to discharge the responsibilities
conferred upon it by law or ordinance and to promote the general welfare of the
inhabitants therein; (Emphasis supplied)

Even the powers granted to the punong barangay consist mainly of executing only

those laws and ordinances already enacted by the legislative bodies, including the said
official's own sangguniang barangay, to wit:

Section 389. Chief Executive: Powers, Duties, and Functions. -

(a) The punong barangay, as the chief executive of the barangay government, shall
exercise such powers and perform such duties and functions, as provided by this Code
and other laws.

(b) For efficient, effective and economical governance, the purpose of which is the
general welfare of the barangay and its inhabitants pursuant to Section 16 of this Code,
the punong barangay shall: ChanRoblesVirtualawlibrary

(1) Enforce all laws and ordinances which are applicable within the barangay;

xxxx

(3) Maintain public order in the barangay and, in pursuance thereof, assist the city or
municipal mayor and the sanggunian members in the performance of their duties and
functions;

xxxx

(14) Promote the general welfare of the barangay;

(15) Exercise such other powers and perform such other duties and functions as may
be prescribed by law or ordinance.48

Clearly, the complete destruction of the basketball ring by the petitioners is justified
neither by law or ordinance nor even by equity or necessity, which makes the act illegal
and petitioners liable. And even as an action to maintain public order, it was done
excessively and was unjustified. Where a less damaging action, such as the mere
padlocking, removal or confiscation of the ring would have sufficed, petitioners resorted
to the drastic measure of completely destroying and rendering as unusable the said
ring, which was a private property, without due process. Such an act went beyond what
the law required and, in being so, it tarnished the image and integrity of the offices held
by petitioners and diminished the public's confidence in the legal system. Petitioners
who were public officials should not have been too earnest at what they believed was
an act of restoring peace and order in the community if in the process they would end
up disturbing it themselves. They cannot break the law that they were duty-bound to
enforce. Although the Court bestows sympathy to the numerous constituents who
allegedly complained against the basketball court to petitioners, it cannot legally agree
with the methods employed by the said officials. Their good intentions do not justify the
destruction of private property without a legal warrant, because the promotion of the
general welfare is not antithetical to the preservation of the rule of law. 49 Unlike the
examples cited earlier of a mad dog on the loose, pornography on display or a filthy
restaurant, which all pose immediate danger to the public and, therefore, could be
addressed by anyone on sight, a basketball ring as a nuisance poses no such urgency
that could have prevented petitioners from exercising any form of deliberation or
circumspection before acting on the same.

Petitioners do not claim to have acted in their private capacities but in their capacities
as public officials, thus, they are held administratively liable for their acts. And even in
their capacities as private individuals who may have abated a public nuisance,
petitioners come up short of the legal requirements. They do not claim to have
complied with any of the requisites laid down in Article 704 of the Civil Code, to wit:

Art. 704. Any private person may abate a public nuisance which is specially injurious to
him by removing, or if necessary, by destroying the thing which constitutes the same,
without committing a breach of the peace, or doing unnecessary injury. But it is
necessary: ChanRoblesVirtualawlibrary

(1) That demand be first made upon the owner or possessor of the property to abate
the nuisance;

(2) That such demand has been rejected;

(3) That the abatement be approved by the district health officer and executed with the
assistance of the local police; and

(4) That the value of the destruction does not exceed three thousand pesos.

WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals

Decision dated March 31, 2008 in CA-G.R. SP. No. 104474 is AFFIRMED.

SO ORDERED. cralawlawlibrary

G.R. No. L-18390. December 20, 1971.]

PEDRO J. VELASCO, Plaintiff-Appellant, v. MANILA ELECTRIC CO., ET

AL., Defendants-Appellees.

SYLLABUS

CIVIL LAW; OBLIGATIONS; PAYMENT; ARTICLE 1250 APPLIES TO CONTRACTUAL

OBLIGATIONS, NOT TO TORTS AS IN CASE AT BAR. — It can be seen from the
employment of the words "extraordinary inflation or deflation of the currency
stipulated" that the legal rule envisages contractual obligations where a specific
currency is selected by the parties as the medium of payment; hence it is inapplicable
to obligations arising from tort and not from contract, as in the case at bar, besides
there being no showing that the factual assumption of the article has come into
existence.
 RESOLUTION

REYES, J.B.L., J.:

Both appellant Velasco and appellee Manila Electric Co. have filed their respective
motions to reconsider the decision of this Court dated 6 August 1971. For the sake of
clarity, the two motions will be here dealt with separately.

A — APPELLANT’S MOTION FOR RECONSIDERATION

The thrust of this motion is that the decision has incorrectly assessed appellant’s
damages and unreasonably reduced their amount. It is first argued that the decision
erred in not taking into account, in computing appellant’s loss of income, the appellant’s
undeclared income of P8,338.20, assessed by the Bureau of Internal Revenue for the
year 1954, in addition to his declared income for that year (P10,975), it being argued
that appellant never claimed any other source of income besides his professional
earnings Several circumstances of record disprove this claim. (1) That the amount of
P8,338.20 was kept apart from the ordinary earnings of appellant for the year 1954
(P10,975), and not declared with it, is in itself circumstantial evidence that it was not of
comparable character. (2) If it was part of his ordinary professional income, appellant
was guilty of fraud in not declaring it and he should not be allowed to derive advantage
from his own wrongdoing. (3) The decision pointed out that by including the undeclared
amount in appellant’s disclosed professional earnings for 1954, to a grand total of
P19,313.20, the income for said year becomes abnormally high (in fact, more than
double), as compared to appellant’s earnings for the three preceding years, 1951-1953,
that averaged not more than P7,000 per annum. Such abnormality justifies the Court’s
refusal to consider the undisclosed P8,338.20 as part of appellant’s regular income for
the purpose of computing the reduction in his earnings as a result of the complained
acts of appellee. (4) Finally, the true source of the undeclared amount lay in appellant’s
own knowledge, but he chose not to disclose it; neither did he call upon the assessing
revenue officer to reveal its character.

Appellant Velasco urges that the damages awarded him are inadequate considering the
present high cost of living, and calls attention to Article 1250 of the present Civil Code,
and to the doctrines laid down in People v. Pantoja, G.R. No. L-18793, 11 October
1968, 25 SCRA 468. We do not deem the rules invoked to be applicable. Article 1250 of
the Civil Code is to the effect that:
jgc:chanrobles.com.ph

"ART. 1250. In case an extraordinary inflation or deflation of the currency stipulated

should supervene, the value of the currency at the time of the establishment of the
obligation shall be the basis of payment, unless there is an agreement to the contrary."
virtua1aw library
cralaw

It can be seen from the employment of the words "extraordinary inflation or deflation of
the currency stipulated" that the legal rule envisages contractual obligations where a
specific currency is selected by the parties as the medium of payment; hence it is
inapplicable to obligations arising from tort and not from contract, as in the case at bar,
besides there being no showing that the factual assumption of the article has come into
existence As to the Pantoja ruling, the regard paid to the decreasing purchase of the
peso was considered a factor in estimating the indemnity due for loss of life, which in
itself is not susceptible of accurate estimation. It should not be forgotten that the
damages awarded to herein appellant were by no means full compensatory damages,
since the decision makes clear that appellant, by his failure to minimize his damages by
means easily within his reach, was declared entitled only to a reduced award for the
nuisance sued upon (Steel v. Rail & River Coal Co., 43 Ohio App. 228, 182 N.E. 552);
and the amount granted him had already taken into account the changed economic
circumstances.

Nor is the fact that appellant lost a chance to sell his house for P95,000 to Jose Valencia
constitute a ground for an award of damages in that amount. As remarked in the main
decision, there is no adequate proof of loss, since there is no evidence of the
depreciation in the market value of the house in question caused by the acts of
defendant Meralco. The house, after all, has remained with appellant, and he admits in
his motion for reconsideration (page 48) that properties have increased in value by
200% since then.

For the foregoing reasons, the motion for reconsideration is denied.

B — APPELLEE’S MOTION TO RECONSIDER

Appellee Manila Electric Company argues that in case the noise emitted by its
substation can not be brought down to the 50 decibel level imposed by our decision in
chief, the remedy of the appellant would be to compel the appellee Company to acquire
and pay for the value of the house, under the so-called doctrine of "inverse
condemnation", and cites in support our doctrines in Bengzon v. Province of
Pangasinan, 62 Phil. 816, and Republic v. Philippine Long Distance Telephone Co., L-
18841, 27 January 1969, 26 SCRA 620-634. But as pointed out by appellant in his
opposition, this issue was not raised, nor was the inverse condemnation doctrine
involved in the trial court, so that it would be improper to consider it on appeal, and
worse still, on a motion for reconsideration of the decision on the merits. Furthermore,
there is no showing that it is impossible to reduce the substation noise to the level
decreed by this Court in the main decision. On the contrary, appellee’s own evidence is
that the noise can be reduced by erecting a wall barrier on the line separating the
substation lot and the property of Appellant.

The version that appellee did not erect the wall because of the objections of appellant’s
wife was denied by her, and there is no preponderance of evidence in favor of appellee
on this point. Moreover, since it was appellant Dr. Velasco who complained, his wife’s
objection would not suffice to constitute a waiver of his claim.

As to the petition to increase the sound level prescribed by his Court from 50 to 55
decibels, on the ground that present "ambient sound already ranges from 44 to 55
decibels in the mornings", the same can not be granted. As shown by the evidence at
the trial, the intensity of the noise emitted by appellee’s transformers are most
objectionable at night, when people are endeavoring to rest and sleep in compensation
for the fatigue and tensions accumulated during daytime.
WHEREFORE, appellee’s motion to reconsider is likewise denied.

[G.R. NO. 148339 : February 23, 2005]

LUCENA GRAND CENTRAL TERMINAL, INC., Petitioner, v. JAC LINER,

INC., Respondent.

DECISION

CARPIO MORALES, J.:

Respondent, JAC Liner, Inc., a common carrier operating buses which ply various routes
to and from Lucena City, assailed, via a petition for prohibition and injunction 1 against
the City of Lucena, its Mayor, and the Sangguniang Panlungsod of Lucena before the
Regional Trial Court (RTC) of Lucena City, City Ordinance Nos. 1631 and 1778 as
unconstitutional on the ground that, inter alia, the same constituted an invalid exercise
of police power, an undue taking of private property, and a violation of the
constitutional prohibition against monopolies. The salient provisions of the ordinances
are:

Ordinance No. 16312

AN ORDINANCE GRANTING THE LUCENA GRAND CENTRAL TERMINAL, INC., A

FRANCHISE TO CONSTRUCT, FINANCE, ESTABLISH, OPERATE AND MAINTAIN A
COMMON BUS-JEEPNEY TERMINAL FACILITY IN THE CITY OF LUCENA

xxx

SECTION 1. 'There is hereby granted to the Lucena Grand Central Terminal, Inc., its
successors or assigns, hereinafter referred to as the "grantee", a franchise to construct,
finance, establish, operate, and maintain a common bus-jeepney terminal facility in the
City of Lucena.

SECTION 2. 'This franchise shall continue for a period of twenty-five years, counted

from the approval of this Ordinance, and renewable at the option of the grantee for
another period of twenty-five (25) years upon such expiration.

xxx

SECTION 4. 'Responsibilities and Obligations of the City Government of Lucena. 'During

the existence of the franchise, the City Government of Lucena shall have the following
responsibilities and obligations:

xxx
(c) It shall not grant any third party any privilege and/or concession to operate a bus,
mini-bus and/or jeepney terminal.

xxx

Ordinance No. 17783

AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY OF LUCENA OF ALL BUSES,

MINI-BUSES AND OUT-OF-TOWN PASSENGER JEEPNEYS AND FOR THIS PURPOSE,
AMENDING ORDINACE NO. 1420, SERIES OF 1993, AND ORDINANCE NO. 1557,
SERIES OF 1995

xxx

SECTION 1. 'The entrance to the City of Lucena of all buses, mini-buses and out-of-
town passenger jeepneys is hereby regulated as follows:

(a) All buses, mini-buses and out-of-town passenger jeepneys shall be  prohibited

from entering the city and are hereby directed to proceed to the common terminal,
for picking-up and/or dropping of their passengers.

(b) All temporary terminals in the City of Lucena are hereby  declared

inoperable starting from the effectivity of this ordinance.

xxx

SECTION 3. 'a) Section 1 of Ordinance No. 1557, Series of 1995, is hereby amended to
read as follows:

Buses, mini-buses, and jeepney type mini-buses from other municipalities and/or local
government units going to Lucena City are directed to proceed to the Common Terminal
located at Diversion Road, Brgy. Ilayang Dupay, to unload and load passengers.

xxx

c) Section 3 of Ordinance No. 1557, Series of 1995, is hereby amended to read as

follows:

Passenger buses, mini-buses, and jeepney type mini-buses coming from other
municipalities and/or local government units shall utilize the facilities of the Lucena
Grand Central Terminal at Diversion Road, Brgy. Ilayang Dupay, this City, and no
other terminals shall be situated inside or within the City of Lucena;

d) Section 4 of Ordinance No. 1557, Series of 1995, is hereby amended to read as

follows:

Passenger buses, mini-buses, and jeepney type mini-buses coming from other
municipalities and/or local government units shall avail of the facilities of the Lucena
Grand Central Terminal which is hereby designated as the officially sanctioned common
terminal for the City of Lucena;

e) Section 5 of Ordinance No. 1557, Series of 1995, is hereby amended to read as

follows:

The Lucena Grand Central Terminal is the permanent common terminal as this 
is the entity which was given the exclusive franchise by the Sangguniang Pang
lungsod under Ordinance No. 1631; (Emphasis and underscoring supplied) Ï‚rαlαωlιbrαrÿ

These ordinances, by granting an exclusive franchise for twenty five years, renewable
for another twenty five years, to one entity for the construction and operation of one
common bus and jeepney terminal facility in Lucena City, to be located outside the city
proper, were professedly aimed towards alleviating the traffic congestion alleged to
have been caused by the existence of various bus and jeepney terminals within the city,
as the "Explanatory Note"-Whereas Clause adopting Ordinance No. 1778 states:

WHEREAS, in line with the worsening traffic condition of the City of Lucena, and with
the purpose of easing and regulating the flow of the same, it is imperative that the
Buses, Mini-Buses and out-of-town jeepneys be prohibited from maintaining terminals
within the City, but instead directing to proceed to the Lucena Grand Central Terminal
for purposes of picking-up and/or dropping off their passengers; 4

Respondent, who had maintained a terminal within the city, was one of those affected
by the ordinances.

Petitioner, Lucena Grand Central Terminal, Inc., claiming legal interest as the grantee
of the exclusive franchise for the operation of the common terminal, 5 was allowed to
intervene in the petition before the trial court.

In the hearing conducted on November 25, 1998, all the parties agreed to dispense
with the presentation of evidence and to submit the case for resolution solely on the
basis of the pleadings filed.6

By Order of March 31, 1999,7 Branch 54 of the Lucena RTC rendered judgment, the
dispositive portion of which reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered, as

follows:

1. Declaring City Ordinance No. 1631 as valid, having been issued in the exercise of the
police power of the City Government of Lucena insofar as the grant of franchise to the
Lucena Grand Central Terminal, Inc., to construct, finance, establish, operate and
maintain common bus-jeepney terminal facility in the City of Lucena;

2. But however, declaring the provision of Sec. 4(c) of Ordinance No. 1631 to the effect
that the City Government shall not grant any third party any privilege and/or
concession to operate a bus, mini-bus and/or jeepney terminal, as illegal and ultra
vires because it contravenes the provisions of Republic Act No. 7160, otherwise known
as "The Local Government Code";

3. Declaring City Ordinance No. 1778 as null and void, the same being also an ultra
vires act of the City Government of Lucena arising from an invalid, oppressive and
unreasonable exercise of the police power, more specifically, declaring illegal [sections
1(b), 3(c) and 3(e)];

4. Ordering the issuance of a Writ of Prohibition and/or Injunction directing the

respondents public officials, the City Mayor and the Sangguniang Panglungsod of
Lucena, to cease and desist from implementing Ordinance No. 1778 insofar as
said ordinance prohibits or curtails petitioner from maintaining and operating
its own bus terminal subject to the conditions provided for in Ordinance No. 1557,
Sec. 3, which authorizes the construction of terminal outside the poblacion of Lucena
City; and likewise, insofar as said ordinance directs and compels the petitioner
to use the Lucena Grand Central Terminal Inc., and furthermore, insofar as it
declares that no other terminals shall be situated, constructed, maintained or
established inside or within the City of Lucena; and furthermore,

5. The Motion to Dismiss filed by the Intervenor, Lucena Grand Central Terminal Inc.,
dated October 19, 1998, is hereby DENIED for lack of merit.

SO ORDERED. (Emphasis and underscoring supplied)8

Petitioner's Motion for Reconsideration9 of the trial court's order having been denied by
Order of August 6, 1999,10 it elevated it via Petition for Review under Rule 45 before
this Court.11 This Court, by Resolution of November 24, 1999, 12 referred the petition to
the Court of Appeals with which it has concurrent jurisdiction, no special and important
reason having been cited for it to take cognizance thereof in the first instance.

By Decision of December 15, 2000,13 the appellate court dismissed the petition and
affirmed the challenged orders of the trial court. Its motion for reconsideration 14 having
been denied by the appellate court by Resolution dated June 5, 2001, 15 petitioner once
again comes to this Court via Petition for Review , 16 this time assailing the Decision and
Resolution of the Court of Appeals.

Decision on the petition hinges on two issues, to wit: (1) whether the trial court has
jurisdiction over the case, it not having furnished the Office of the Solicitor General
copy of the orders it issued therein, and (2) whether the City of Lucena properly
exercised its police power when it enacted the subject ordinances.

Petitioner argues that since the trial court failed to serve a copy of its assailed orders
upon the Office of the Solicitor General, it never acquired jurisdiction over the case, it
citing Section 22, Rule 3 of the Rules which provides:

SEC. 22. Notice to the Solicitor General. In any action involving the validity of any
treaty, law, ordinance, executive order, presidential decree, rules or regulations, the
court in its discretion, may require the appearance of the Solicitor General  who may
be heard in person or through representative duly designated by him. (Emphasis and
underscoring supplied) ςrαlαωlιbrαrÿ

Furthermore, petitioner invokes Sections 3 and 4 of Rule 63 which respectively

provide:

SEC. 3. Notice on Solicitor General. - In any action which involves the validity of a

statute, executive order or regulation, or any other governmental regulation,
the Solicitor General shall be notified by the party assailing the same and shall be
entitled to be heard upon such question.

SEC. 4. Local government ordinances. - In any action involving the validity of a local

government ordinance, the corresponding prosecutor or attorney of the local
government unit involved shall be similarly notified and entitled to be heard. If such
ordinance is alleged to be unconstitutional, the Solicitor General shall also be notified
and entitled to be heard. (Emphasis and underscoring supplied) ςrαlαωlιbrαrÿ

Nowhere, however, is it stated in the above-quoted rules that failure to notify the
Solicitor General about the action is a jurisdictional defect.

In fact, Rule 3, Section 22 gives the courts in any action involving the "validity" of
any ordinance, inter alia, "discretion" to notify the Solicitor General.

Section 4 of Rule 63, which more specifically deals with cases assailing
the constitutionality, not just the validity, of a local government ordinance, directs that
the Solicitor General "shall also be notified and entitled to be heard." Who will notify
him, Sec. 3 of the same rule provides - it is the party which is assailing the local
government's ordinance.

More importantly, however, this Court finds that no procedural defect, fatal or
otherwise, attended the disposition of the case. For respondent actually served a copy
of its petition upon the Office of the Solicitor General on October 1, 1998, two days
after it was filed. The Solicitor General has issued a Certification to that effect. 17 There
was thus compliance with above-quoted rules.

Respecting the issue of whether police power was properly exercised when the subject
ordinances were enacted: As with the State, the local government may be considered
as having properly exercised its police power only if the following requisites are met:
(1) the interests of the public generally, as distinguished from those of a particular
class, require the interference of the State, and (2) the means employed are reasonably
necessary for the attainment of the object sought to be accomplished and not unduly
oppressive upon individuals. Otherwise stated, there must be a concurrence of a lawful
subject and lawful method.18

That traffic congestion is a public, not merely a private, concern, cannot be gainsaid.
In Calalang v. Williams19 which involved a statute authorizing the Director of Public
Works to promulgate rules and regulations to regulate and control traffic on national
roads, this Court held:
In enacting said law, therefore, the National Assembly was prompted by considerations
of public convenience and welfare. It was inspired by a desire to relieve congestion
of traffic, which is, to say the least, a menace to public safety. Public welfare, then, lies
at the bottom of the enactment of said law, and the state in order to promote the
general welfare may interfere with personal liberty, with property, and with business
and occupations.20 (Emphasis supplied) Ï‚rαlαωlιbrαrÿ

The questioned ordinances having been enacted with the objective of relieving traffic
congestion in the City of Lucena, they involve public interest warranting the
interference of the State. The first requisite for the proper exercise of police power is
thus present.

Respondent's suggestion to have this Court look behind the explicit objective of the
ordinances which, to it, was actually to benefit the private interest of petitioner by
coercing all bus operators to patronize its terminal does not lie. 21 Lim v.
Pacquing22 instructs:

. . . [T]his Court cannot look into allegations that PD No. 771 was enacted to benefit a
select group which was later given authority to operate the jai-alai under PD No.
810. The examination of legislative motivation is generally prohibited. (Palmer v.
Thompson, 403 U.S. 217, 29 L. Ed. 2d 438 [1971] per Black, J.) There is, in the first
place, absolute lack of evidence to support ADC's allegation of improper motivation in
the issuance of PD No. 771. In the second place, as already averred, this Court cannot
go behind the expressed and proclaimed purposes of PD No. 771, which are reasonable
and even laudable. (Underscoring supplied)23

This leaves for determination the issue of whether the means employed by the Lucena
Sangguniang Panlungsod to attain its professed objective were reasonably necessary
and not unduly oppressive upon individuals.

With the aim of localizing the source of traffic congestion in the city to a single
location,24 the subject ordinances prohibit the operation of all bus and jeepney terminals
within Lucena, including those already existing, and allow the operation of only one
common terminal located outside the city proper, the franchise for which was granted
to petitioner. The common carriers plying routes to and from Lucena City are thus
compelled to close down their existing terminals and use the facilities of petitioner.

In De la Cruz v. Paras,25 this Court declared unconstitutional an ordinance characterized

by overbreadth. In that case, the Municipality of Bocaue, Bulacan prohibited the
operation of all night clubs, cabarets and dance halls within its jurisdiction for the
protection of public morals. Held the Court:

It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could 
qualify under the term reasonable. The objective of fostering public morals, a worthy an
d desirable end can be attained by a measure that does not encompass too wide a field. 
Certainly the ordinance on its face is characterized by overbreadth. The purpose sought 
to be achieved could have been attained by reasonable restrictions rather than by an ab
solute prohibition. The admonition in Salaveria should be heeded: "The Judiciary should
not lightly set aside legislative action when there is not a clear invasion of personal or
property rights under the guise of police regulation." It is clear that in the guise of a
police regulation, there was in this instance a clear invasion of personal or property
rights, personal in the case of those individuals desirous of patronizing those night clubs
and property in terms of the investments made and salaries to be earned by those
therein employed. (Underscoring supplied)26

In Lupangco v. Court of Appeals,27 this Court, in declaring unconstitutional the

resolution subject thereof, advanced a similar consideration. That case involved a
resolution issued by the Professional Regulation Commission which prohibited
examinees from attending review classes and receiving handout materials, tips, and the
like three days before the date of examination in order to preserve the integrity and
purity of the licensure examinations in accountancy. Besides being unreasonable on its
face and violative of academic freedom, the measure was found to be more sweeping
than what was necessary, viz:

Needless to say, the enforcement of Resolution No. 105 is not a guarantee that the
alleged leakages in the licensure examinations will be eradicated or at least
minimized. Making the examinees suffer by depriving them of legitimate means of
review or preparation on those last three precious days when they should be refreshing
themselves with all that they have learned in the review classes and preparing their
mental and psychological make-up for the examination day itself -  would be like
uprooting the tree to get rid of a rotten branch. What is needed to be done by
the respondent is to find out the source of such leakages and stop it right
there. If corrupt officials or personnel should be terminated from their loss, then so be
it. Fixers or swindlers should be flushed out. Strict guidelines to be observed by
examiners should be set up and if violations are committed, then licenses should be
suspended or revoked. x x x (Emphasis and underscoring supplied)28

As in De la Cruz29 and Lupangco,30 the ordinances assailed herein are characterized by

overbreadth. They go beyond what is reasonably necessary to solve the traffic problem.
Additionally, since the compulsory use of the terminal operated by petitioner would
subject the users thereof to fees, rentals and charges, such measure is unduly
oppressive, as correctly found by the appellate court. 31 What should have been done
was to determine exactly where the problem lies and then to stop it right there.

The true role of Constitutional Law is to effect an equilibrium between authority and
liberty so that rights are exercised within the framework of the law and the laws are
enacted with due deference to rights. (Underscoring supplied)32

A due deference to the rights of the individual thus requires a more careful formulation
of solutions to societal problems.

From the memorandum33 filed before this Court by petitioner, it is gathered that the
Sangguniang Panlungsod had identified the cause of traffic congestion to be the
indiscriminate loading and unloading of passengers by buses on the streets of the city
proper, hence, the conclusion that the terminals contributed to the proliferation of
buses obstructing traffic on the city streets.

Bus terminals per se do not, however, impede or help impede the flow of traffic. How
the outright proscription against the existence of all terminals, apart from that
franchised to petitioner, can be considered as reasonably necessary to solve the traffic
problem, this Court has not been enlightened. If terminals lack adequate space such
that bus drivers are compelled to load and unload passengers on the streets instead of
inside the terminals, then reasonable specifications for the size of terminals could be
instituted, with permits to operate the same denied those which are unable to meet the
specifications.

In the subject ordinances, however, the scope of the proscription against the
maintenance of terminals is so broad that even entities which might be able to provide
facilities better than the franchised terminal are barred from operating at all.

Petitioner argues, however, that other solutions for the traffic problem have already
been tried but proven ineffective. But the grant of an exclusive franchise to petitioner
has not been shown to be the only solution to the problem.

While the Sangguniang Panlungsod, via Ordinance No. 1557,34 previously directed bus
owners and operators to put up their terminals "outside the poblacion of Lucena City,"
petitioner informs that said ordinance only resulted in the relocation of terminals to
other well-populated barangays, thereby giving rise to traffic congestion in those
areas.35 Assuming that information to be true, the Sangguniang Panlungsod was not
without remedy. It could have defined, among other considerations, in a more precise
manner, the area of relocation to avoid such consequences.

As for petitioner's argument that the challenged ordinances were enacted pursuant to
the power of the Sangguniang Panlungsod to "[r]egulate traffic on all streets and
bridges; prohibit encroachments or obstacles thereon and, when necessary in the
interest of public welfare, authorize the removal of encroachments and illegal
constructions in public places":36 Absent any showing, nay allegation, that the terminals
are encroaching upon public roads, they are not obstacles. The buses which
indiscriminately load and unload passengers on the city streets are. The power then of
the Sangguniang Panlungsod to prohibit encroachments and obstacles does not extend
to terminals.ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

Neither are terminals public nuisances as petitioner argues. For their operation is a
legitimate business which, by itself, cannot be said to be injurious to the rights of
property, health, or comfort of the community.

But even assuming that terminals are nuisances due to their alleged indirect effects
upon the flow of traffic, at most they are nuisance per accidens, not per se.

Unless a thing is nuisance per se, however, it may not be abated via an ordinance,
without judicial proceedings, as was done in the case at bar.

In Estate of Gregoria Francisco v. Court of Appeals,37 this Court held:

Respondents can not seek cover under the general welfare clause authorizing the
abatement of nuisances without judicial proceedings. That tenet applies to a nuisance
per se, or one which affects the immediate safety of persons and property and may be
summarily abated under the undefined law of necessity (Monteverde v. Generoso, 52
Phil. 123 [1982]). The storage of copra in the quonset building is a legitimate business.
By its nature, it can not be said to be injurious to rights of property, of health or of
comfort of the community. If it be a nuisance per accidens it may be so proven in a
hearing conducted for that purpose. It is not per se a nuisance warranting its summary
abatement without judicial intervention. ςηαñrοblεš  Î½Î¹r† Ï…αl  lαω  lιbrαrà ¿

(Underscoring supplied)38  ςηαñrοblεš  Î½Î¹r†υαl  lαω  lιbrαrÿ

In Pampanga Bus Co., Inc. v. Municipality of Tarlac39 where the appellant-municipality

similarly argued that the terminal involved therein is a nuisance that may be abated by
the Municipal Council via an ordinance, this Court held: "Suffice it to say that in the
abatement of nuisances the provisions of the Civil Code (Articles 694-707) must be
observed and followed. This appellant failed to do."

As for petitioner's claim that the challenged ordinances have actually been proven
effective in easing traffic congestion: Whether an ordinance is effective is an issue
different from whether it is reasonably necessary. It is its reasonableness, not its
effectiveness, which bears upon its constitutionality. If the constitutionality of a law
were measured by its effectiveness, then even tyrannical laws may be justified
whenever they happen to be effective.

The Court is not unaware of the resolutions of various barangays in Lucena City
supporting the establishment of a common terminal, and similar expressions of support
from the private sector, copies of which were submitted to this Court by petitioner. The
weight of popular opinion, however, must be balanced with that of an individual's
rights.

There is no question that not even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a person invoking a right
guaranteed under Article III of the Constitution is a majority of one even as against the
rest of the nation who would deny him that right. 40

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.

G.R. No. 206423, July 01, 2015

LEONCIO ALANGDEO, ARTHUR VERCELES, AND DANNY

VERGARA, Petitioners, v. THE CITY MAYOR OF BAGUIO, HON. BRAULIO D.
YARANON (TO BE SUBSTITUTED BY INCUMBENT CITY MAYOR, HON. MAURICIO
DOMOGAN), JEOFREY MORTELA, HEAD DEMOLITION TEAM, CITY ENGINEER’S
OFFICE, AND ERNESTO LARDIZABAL, Respondents.

DECISION
 PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision2 dated June 29, 2012
and the Resolution3 dated March 5, 2013 of the Court of Appeals (CA) in CA-G.R. CV
No. 87439, which reversed the Decision4 dated April 27, 2006 of the Regional Trial
Court of Baguio City, Branch 60 (RTC) in Civil Case No. 6007-R granting the complaint
for injunction filed by herein petitioners Leoncio Alangdeo, Arthur Verceles (Verceles),
and Danny Vergara (collectively, petitioners).

The Facts

On November 13, 2003, respondent Ernesto Lardizabal (Ernesto) filed a complaint for
demolition,5 before the City Engineer’s Office6 of Baguio City (City Engineer’s Office),
questioning the ongoing construction of a residential structure and garage extension by
petitioners on a parcel of land, situated at Barangay Atok Trail, Baguio City (subject
property), allegedly owned by Mariano Pangloy and Ernesto’s father, Juanito
Lardizabal.7 Upon investigation, the City Engineer’s Office found out that the
construction had no building permit. Consequently, the City Mayor issued, through
the Secretary to the Mayor, Demolition Order No. 05, series of 2005 (DO No. 05)
directing the City Demolition Team to summarily demolish the said structures, to wit: 8 redarclaw

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WHEREFORE, the CITY DEMOLITION TEAM is hereby directed to SUMMARILY

DEMOLISH the aforesaid structures of Atty. Leoncio Alangdeo, Arthur Verceles and/or
Danny Vergara in accordance with Section 3[,] par. 2.5(a) of the implementing
rules and regulations governing summary eviction jointly issued by the
Department of Interior and Local Government (DILG) and the Housing and Urban
Development Coordinating Council pursuant to Section 44, [A]rticle XII of
[Republic Act (RA) No. 72799].(Emphases supplied)

Aggrieved, petitioners moved for a reconsideration of DO No. 05, but was denied by the
City Mayor. Thus, they were prompted to file a complaint for injunction and prohibition
with the RTC, docketed as Civil Case No. 6007-R, seeking to enjoin the implementation
of said order.10 redarclaw

In their complaint, petitioners applied for a temporary restraining order, which was
granted by the RTC. Subsequently, the RTC issued a writ of preliminary injunction
pending the final determination of the merits of the case. 11
redarclaw

During trial, Verceles testified, among others, that he has a Tax Declaration and a
pending application for Ancestral Land Claim over the subject property filed before the
National Commission on Indigenous Peoples (NCIP), and that he has been paying taxes
therefor and occupying the same since 1977.12 He also testified that Ernesto had
previously filed a case with the Office of the Department of Environment and Natural
Resources (DENR)-Cordillera Administrative Region (CAR), questioning his possession
thereof, as well as, seeking the cancellation of his tax declaration over the said
property.13 The DENR-CAR dismissed the case in his favor, but Ernesto appealed to the
Office of the DENR Secretary. At the time the appeal was pending, Ernesto filed the
complaint for demolition before the City Engineer’s Office. Verceles further testified that
Barangay Atok Trail is covered by Proclamation No. 414, series of 1957 (Proclamation
414),which declared the same as mineral reservation for Baguio City, for which reason
he was unable to get a title over the subject property despite his possession thereof. 14 redarclaw

Punong Barangay Stephen T. Aligo was also presented by petitioners as a witness.He

testified that by Resolution No. 386, series of 1995, the City Council requested for the
release of the vast area covered by Proclamation 414, for housing purposes to be
awarded to the occupants of Barangay Atok Trail. Also, he narrated that in a census
conducted in 2003,it was found that there were two hundred thirty(230) houses in
Barangay Atok Trail and none of these houses had building permits. 15 redarclaw

On the other hand, respondents’ witnesses, Antonio O. Visperas, Robert Albas Awingan,
and George Addawe, Jr., all testified that the structures of petitioners on the subject
property were not covered by any building permit. 16Additionally, Ernesto testified that
the issue of possession over the said property was the subject of an appeal pending
before the Office of the DENR Secretary. 17redarclaw

The RTC Ruling

In a Decision18 dated April 27, 2006, the RTC enjoined the City Government of Baguio
and its agents from implementing DO No. 5 “until and after the resolution of all the
cases/issues involving the subject property and/or area affected by the appropriate
government agencies concerned.” The injunction stemmed from its finding that
Proclamation 414 declared the entire area of Barangay Atok Trail as a buffer zone for
the mining industry, and, for that reason, all structures constructed thereon(and not
only that of petitioners) were not covered by building permits. Thus, the RTC held that
it would violate the equal protection clause if it would allow the demolition of
petitioners’ structures while leaving untouched the other structures in the area. 19
redarclaw

Dissatisfied, respondents appealed20 to the CA.

The CA Ruling

In a Decision21 dated June 29, 2012, the CA reversed the ruling of the RTC, finding that
petitioners failed to show any right to be protected. It relied on the Decision 22 rendered
on August 31, 2006 by then DENR Secretary Angelo Reyes in DENR Case No. 5625,
which recognized and respected the ancestral and preferential rights of Mariano Pangloy
and the Heirs of Juanito Lardizabal over the subject property pending the final
determination by the NCIP of their ancestral claim. 23 Accordingly, the CA held that
where the plaintiff – as petitioners in this case –failed to demonstrate that he has an
existing right to be protected by injunction, the suit for injunction must be dismissed for
lack of cause of action.24
redarclaw

Unperturbed, petitioners filed a motion for reconsideration, raising therein the

Decision25 of the NCIP Regional Hearing Office dated May 18, 2012,  which ruled that
between petitioners and Ernesto, the former have a better right to the issuance of
ancestral land titles over the portions they are claiming to be their ancestral lands. 26 
The CA, however, denied the motion in a Resolution 27 dated March 5, 2013, maintaining
that petitioners have no right in esse. Thus, considering that petitioners have no
building permit over the subject constructions, it ruled that the public respondents have
the right to demolish the subject structures.28 redarclaw
Hence, this petition.

The Issues Before the Court

The issues for resolution are: (a) whether the CA should have dismissed respondents’
appeal as it involves pure questions of law and/or for lack of merit; and (b) whether the
issuance of a writ of injunction is warranted.

The Court’s Ruling

The petition is meritorious.

I.

On the preliminary procedural issue,Rule 41 of the Rules of Court (Rules) provides for
three (3) ways by which an appeal from the RTC’s decision may be undertaken,
depending on the nature of the attendant circumstances of the case, namely: (a) an
ordinary appeal to the CA in cases decided by the RTC in the exercise of its original
jurisdiction; (b) a petition for review to the CA in cases decided by the RTC in the
exercise of its appellate jurisdiction; and (c) a petition for review on certiorari directly
filed with the Court where only questions of law are raised or involved. 29The first mode
of appeal under Rule 41 of the Rules is available on questions of fact or mixed
questions of fact and of law. The second mode of appeal, governed by Rule 42 of the
Rules, is brought to the CA on questions of fact, of law, or mixed questions of fact and
of law. The third mode of appeal under Rule 45 of the Rules is filed with the Court only
on questions of law.30 redarclaw

There is a “question of law” when the doubt or difference arises as to what the law is on
a certain state of facts, and which does not call for an examination of the probative
value of the evidence presented by the parties-litigants. On the other hand, there is a
“question of fact” when the doubt or controversy arises as to the truth or falsity of the
alleged facts. Simply put, when there is no dispute as to fact, the question of whether
or not the conclusion drawn therefrom is correct, is a question of law. 31 redarclaw

In this case, the CA was called upon, not to examine the probative value of the
evidence presented, but to determine whether the legal conclusions made based on the
recorded evidence is correct.  Essentially, the issue raised before the CA was whether
the order for the summary demolition of petitioners’ structures authorized under the
law, and in that relation, whether the RTC’s grant of the complaint for injunction based
on the equal protection clause was proper. Clearly, with none of the factual
circumstances contested, the appeal involved pure questions of law that should have
been brought directly to the Court. Consequently, on a technical note, the CA should
have dismissed respondents’ appeal for having been filed with the wrong tribunal
pursuant to Section 2, Rule 50 of the Rules which reads: LawlibraryofCRAlaw

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SEC. 2. Dismissal of improper appeal to the Court of Appeals. – An appeal under Rule
41 taken from the Regional Trial Court to the Court of Appeals raising only questions of
law shall be dismissed, issues purely of law not being reviewable by said court.
Be that as it may, a review of the substantive merits of this case would nevertheless
warrant the grant of the present petition which seeks the reversal of the CA decision.

II.

DO No. 532 states on its face that it was issued in accordance with Section 3, paragraph
2.5 (a) of the Implementing Rules and Regulations (IRR) Governing Summary Eviction
(Summary Eviction IRR), to wit: LawlibraryofCRAlaw

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SECTION 3. Procedures and Guidelines

xxxx

2.0 Issuance of Summary Eviction Notice

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xxxx

2.5 In the Issuance of notice, the following shall be strictly observed: LawlibraryofCRAlaw

a. For on-going construction, no notice shall be served.Dismantling of

the structures shall be immediately enforced by the LGU or the
concerned agency to demolish.

To note, the Summary Eviction IRR was issued pursuant to Section 28, Article VII of RA
7279, which equally provides for the situations wherein eviction or demolition is allowed
as crafted exceptions to the moratorium on eviction under Section 44, Article XII 33 of
the same law.
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Sec. 28. Eviction and Demolition. — Eviction or demolition as a practice shall be

discouraged. Eviction or demolition, however, may be allowed under the following
situations: LawlibraryofCRAlaw

(a) When persons or entities occupy danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways, and other public places such as
sidewalks, roads, parks, and playgrounds;

(b) When government infrastructure projects with available funding are about to be
implemented; or

(c) When there is a court order for eviction and demolition.

xxxx

This Department of the Interior and Local Government and the Housing and Urban
Development Coordinating Council shall jointly promulgate the necessary rules and
regulations to carry out the above provision. (Emphases supplied)

Section 2 of the Summary Eviction IRR provides that only new squatter34 families

whose structures were built after the effectivity of RA 7279, otherwise known as the
“Urban Development and Housing Act of 1992,” and squatter families identified by the
local government unit (LGU) as professional squatters 35or members of squatting
syndicates shall be subject of summary eviction: LawlibraryofCRAlaw

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SECTION 2. Coverage – The following shall be subject for summary eviction: LawlibraryofCRAlaw

1.0 New squatter families whose structures were built after the effectivity of RA7279; and
2.0 Squatter families identified by the LGU in cooperation with the Presidential Commission of
the Urban Poor (PCUP), Philippine National Police (PNP) and accredited Urban Poor
[O]rganization (UPO) as professional squatters or members of squatting syndicates as
defined in the Act.

Under the Summary Eviction IRR, the term “summary eviction” has been defined as
“the immediate dismantling of new illegal structures by the local government units or
government agency authorized to [demolish] in coordination with the affected urban
poor organizations without providing the structure owner(s) any benefits of the Urban
Development and Housing Program.”36 redarclaw

Meanwhile, the terms “new squatter,” “professional squatters,”and “squatting

syndicates” have been respectively defined as follows: LawlibraryofCRAlaw

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“New squatter” refers to individual groups who occupy land without the express
consent of the landowner after March 28, 1992. Their structures shall be dismantled
and appropriate charges shall be filed against them by the proper authorities if they
refuse to vacate the premises.37 redarclaw

“Professional squatters” refers to individuals or groups who occupy lands without the
express consent of the landowner and who have sufficient income for legitimate
housing. The term shall also apply to persons who have previously been awarded
homelots or housing units by the Government but who sold, leased or transferred the
same to settle illegally in the same place or in another urban area, and non-bona fide
occupants and intruders of lands reserved for socialized housing. The term shall not
apply to individuals or groups who simply rent land and housing from professional
squatters or squatting syndicates.38 redarclaw

“Squatting syndicates” refers to groups of persons engaged in the business of

squatter housing for profit or gain.39

In this case, petitioners cannot be considered as new squatters, since, although their
structures were built after March 28, 1992, they or their predecessors-in-interest had
occupied, and were claimants of the subject property long before the said date.Neither
have they been identified by the LGU as professional squatters nor members of a
squatting syndicate. Thus, since petitioners do not fall under the coverage of the said
IRR, the issuance of DO No. 05 had no legal basis at the onset.

More significantly, none of the three (3) situations enumerated under Section 28,
Article VII of RA 7279 as above-cited, when eviction or demolition is allowed, have been
shown to be present in the case at bar.  Specifically, it was not shown that the
structures are in danger areas or public areas, such as a sidewalk, road, park, or
playground; that a government infrastructure project is about to be implemented; and
that there is a court order for demolition or eviction. Therefore, the issuance by the City
Mayor of an order for the summary demolition of petitioners’ structures finds no basis in
the said law permitting summary demolition or eviction.

While respondents make much ado of petitioners’ lack of building permits, it should be
underscored that under Presidential Decree No. 1096,40 otherwise known as the
“National Building Code of the Philippines” (NBCP), the mere fact that a structure is
constructed without a building permit, as well as non-compliance with work stoppage
order, without more, will not call for a summary demolition, but subjects the violator to
an administrative fine under Section 212,41 Chapter II of the NBCP, or a criminal case
under Section 21342 of the same law.

Indeed, while Section 301, Chapter III of the NBCP states that “[n]o person, firm or
corporation, including any agency or instrumentality of the government shall erect,
construct, alter, repair, move, convert or demolish any building or structure or cause
the same to be done without first obtaining a building permit therefor from the Building
Official assigned in the place where the subject building is located or the building work
is to be done,” the remedy of summary abatement against the bare absence of a
building permit was not provided for.

Meanwhile, Section 215 of the NBCP, and its corresponding IRR provision (both of
which are respectively quoted hereunder) states that before a structure may be abated
or demolished,there must first be a finding or declaration by the Building Official that
the building/structure is a nuisance, ruinous or dangerous: LawlibraryofCRAlaw

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Section 215. Abatement of Dangerous Buildings.

When any building or structure is found or declared to be dangerous or ruinous, the

Building Official shall order its repair, vacation or demolition depending upon the degree
of danger to life, health, or safety. This is without prejudice to further action that may
be taken under the provisions of Articles 482 and 694 to 707 of the Civil Code of the
Philippines.

PROCEDURE FOR ABATEMENT/ DEMOLITION OF DANGEROUS/ RUINOUS

BUILDINGS/ STRUCTURES

5.  Procedure for Demolition of Buildings

The following steps shall be observed in the abatement/demolition of buildings under

this Rule: LawlibraryofCRAlaw

5.1 There must be a finding or declaration by the Building Official that the
building/structure is a nuisance, ruinous or dangerous.

5.2 Written notice or advice shall be served upon the owner and occupant/s of such
finding or declaration, giving him at least fifteen (15) days within which to vacate or
cause to be vacated, repaired, renovated, demolished and removed as the case may
be, the nuisance, ruinous or dangerous building/structure or any part or portion
thereof.
5.3 Within the fifteen-day (15) period, the owner may, if he so desires, appeal to the
Secretary the finding or declaration of the Building Official and ask that a re-inspection
or re-investigation of the building/structure be made.

x x x x43

To this, it bears noting that it is the Building Official, and not the City Mayor, who has
the authority to order the demolition of the structures under the NBCP. As held
in Gancayco v. City Government of Quezon City:44 redarclaw

ChanRoblesVirtualawlibrary

[T]he Building Code clearly provides the process by which a building may be
demolished. The authority to order the demolition of any structure lies with the Building
Official. The pertinent provisions of the Building Code provide:
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SECTION 205. Building Officials. — Except as otherwise provided herein, the Building

Official shall be responsible for carrying out the provisions of this Code in the field as
well as the enforcement of orders and decisions made pursuant thereto.

Due to the exigencies of the service, the Secretary may designate incumbent Public
Works District Engineers, City Engineers and Municipal Engineers [to]act as Building
Officials in their respective areas of jurisdiction.

The designation made by the Secretary under this Section shall continue until regular
positions of Building Official are provided or unless sooner terminated for causes
provided by law or decree.

[x xx x]

SECTION 207.Duties of a Building Official. — In his respective territorial jurisdiction, the

Building Official shall be primarily responsible for the enforcement of the provisions of
this Code as well as of the implementing rules and regulations issued therefor. He is the
official charged with the duties of issuing building permits.

In the performance of his duties, a Building Official may enter any building or its
premises at all reasonable times to inspect and determine compliance with the
requirements of this Code, and the terms and conditions provided for in the building
permit as issued.

When any building work is found to be contrary to the provisions of this Code, the
Building Official may order the work stopped and prescribe the terms and/or conditions
when the work will be allowed to resume. Likewise, the Building Official is authorized to
order the discontinuance of the occupancy or use of any building or structure or portion
thereof found to be occupied or used contrary to the provisions of this Code.

x x x x (Emphases supplied)

In this case, none of the foregoing requisites were shown to concur. Plainly, records are
bereft of any declaration coming from the Building Official, and it is undisputed that the
demolition order was issued by the City Mayor. Notably, while respondents invoke the
City Mayor’s authority under Section 455(b) 3(vi) 45 of the Local Government Code46 to
order the demolition or removal of an illegally constructed house, building, or structure
within the period prescribed by law or ordinance and their allegation that respondents’
structures were constructed without building permits, records disclose that the same
was not raised before the trial court. Since respondents invoked the said section for the
first time in their comment to the instant petition, 47 the argumentation cannot thus be
entertained, it being settled that matters, theories or arguments not brought out in the
proceedings below will ordinarily not be considered by a reviewing court as they cannot
be raised for the first time on appeal.48redarclaw

Besides, it is clear that DO No. 05 was not issued pursuant to Section 455 (b) 3 (vi) of
the Local Government Code, but pursuant to “Section 3 par. 2.5(a) of the implementing
rules and regulations governing summary eviction jointly issued by the Department of
Interior and Local Government (DILG) and the Housing and Urban Development
Coordinating Council x x x,”49 implementing Section 28, Article VII of RA 7279, the
application of which, however, has been herein debunked.

In fine, DO No. 05, which ordered the summary demolition of petitioners’ structures,
has no legal moorings and perforce was invalidly issued. Accordingly, an injunctive writ
to enjoin its implementation is in order. It is well-settled that for an injunction to issue,
two requisites must concur: first, there must be a right to be protected; and second,
the acts against which the injunction is to be directed are violative of said right. 50 Here,
the two (2) requisites are present: there is a right to be protected – that is, petitioners’
right over their structures which should be preserved unless their removal is warranted
by law; and the act, i.e., the summary demolition of the structures under DO No. 05,
against which the injunction is directed, would violate said right. 51redarclaw

As a final note, the Court exhorts that absent compliance with the laws allowing for
summary eviction, respondents cannot resort to the procedural shortcut of ousting
petitioners by the simple expedient of a summary demolition order from the Office of
the City Mayor.  They have to undergo the appropriate proceeding as set out in the
NBCP and its IRR or avail of the proper judicial process to recover the subject property
from petitioners. In pursuing said recourse, it would also not be amiss for the parties to
await the final resolution of any pending case involving the subject property between
petitioners and Ernesto, before the appropriate government agencies, in order to avoid
any further complication on the matter.

That being said, it is then unnecessary to delve into the other ancillary issues raised in
these proceedings.

WHEREFORE, the petition is GRANTED. The Decision dated June 29, 2012 and the
Resolution dated March 5, 2013 of the Court of Appeals in CA-G.R. CV No. 87439 are
hereby REVERSED and SET ASIDE. The implementation of Demolition Order No. 05,
series of 2005 is ENJOINED.

SO ORDERED. cralawlawlibrary