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[G.R. No. L-37409. May 23, 1988.] NICOLAS VALISNO, plaintiff-appellant, vs. FELIPE ADRIANO, defendant-appellee.

Honorio Valisno Garcia I for plaintiff-appellant. Felipe K. Medina for defendant-appellee. DECISION

GRIÑO-AQUINO, J p: 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 pleadings 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 557,949square-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-appellee's 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. LLphil 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. LLpr 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 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. "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 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" (Civil Code) This provision was lifted from Article 122 of the Spanish Law of Waters which provided: prcd "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 Osmeña 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 abovedescribed, together with one Berkely Model 6 YRF Centrifugal Pump G" suction, 6" discharge 5001500 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.

SO ORDERED. such as the right to use a drainage ditch for irrigation purposes. although not specifically mentioned in the conveyance. he is entitled to enjoy it free from obstruction. cdll As an easement of waters in favor of the appellant has been established. 868-897). which survives the determination of the necessity (Benedicto vs. 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. CA. 19 C. WHEREFORE. 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. 112 Me 371. The fact that an easement by grant may also have qualified as an easement of necessity does not detract from its permanency as property right.Water rights. 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. . the appealed decision is set aside. pass with the conveyance of the land. disturbance or wrongful interference (19 CJ 984).J. which are appurtenant to a parcel of land. such as the appellee's act of levelling the irrigation canal to deprive him of the use of water from the Pampanga River. 25 SCRA 145).

— Under the provisions of Articles 537 and 539. the pertinent portion of which we are reproducing and making our own: "The amended and supplemental complaint alleges 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. J p: Involving as it does only a question of law. may be acquired only by virtue of a title. the easement of right of way may not be acquired through prescription. 1955. dated March 6. Jr. Vicente Roco. vs. apparent or non-apparent. — Under the Old as well as the New Civil Code. Moises B. 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. and 620 and 622 of the Old and New Civil Codes. 1958. plaintiffs-appellants. started constructing a chapel in the middle of the said right of way construction actually impeded.] LEOGARIO RONQUILLO. defendants-appellees. dismissing the amended and supplemental complaint of plaintiffs on motion of defendants that it did not state a cause of action. in going to Igualdad Street and the market place of Naga City. February 28. easements may be continuous or discontinuous (intermittent). SYLLABUS 1. respectively. was taken directly to this Court. from their residential land and back...EASEMENTS. Articles 537 and 539. L-10619.) 2. . that on May 12. the present appeal from the order of the Court of First Instance of Camarines Sur.R. continuous non-apparent easements and discontinuous ones whether apparent or not. the defendants Jose Roco thru his codefendants. ET AL. EASEMENT OF RIGHT OF WAY MAY NOT BE ACQUIRED THROUGH PRESCRIPTION. Continuous and apparent easements are acquired either by title or prescription. respectively). The facts and the issue involved in the appeal are well and correctly stated in the appealed order. as Administrator of VICENTE ROCO Y DOMINGUEZ. 1953. No.ID.. JOSE ROCO. CLASSIFIED AND HOW THEY ARE ACQUIRED. Cruz for appellants. for more than 20 years. for appellees. that the defendants and the tenants of Vicente Roco. and 620 and 622 of the Old and New Civil Codes respectively. DECISION MONTEMAYOR.[G. 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. ET AL. 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.

particularly the articles thereof aforecited. discontinuous or intermittent and." (3 Sanches Roman. therefore. sin la intervencion de ningun hecno del hombre. respectively). Jr. Continuous and apparent easements are acquired either by title or prescription. más o menos largos. porque no es posible que el hombre esté pasando continuamente por el camino. 5th ed. Both Manresa and Sanchez Roman are of the opinion that the easement of right of way is a discontinuous one: "En cambio. y dependen de actos del hombre. 1954 the new defendants Natividad Roco and Gregorio Miras. continuous non-apparent easements and discontinuous ones whether apparent or not. como son las de luces y otras de la misma especie. such as. "The only question therefore to be determined in this case. Codigo Civil Español. p. 529). porque es imposible fisicamente que su uso sea incesante. old and new. is whether an easement of right of way can be acquired thru prescription. 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. Derecho Civil. Under the Old as well as the New Civil Code. from their residential land or houses. and 620 and 622 of the Old and New Civil Codes. illegally and violently planted wooden posts. . en continuas y discontinuas (1).obstructed and disturbed the continuous exercise of the rights of the plaintiffs over said right of way. easements may be Continuous or discontinuous (intermittent). and return. Under the provisions of the Civil Code. and threats. respectively). referring to discontinuous easements. . las que se usan á intervalos. apparent or nonapparent. p. las servidumbres discontinuos se ejercitan por un hecho del hombre. Even Article 1959 of the Old Civil Code providing for prescription of ownership and other real rights in real property. intimidation. la servidumbre de paso es discontinua." The dismissal was based on the ground that an easement of right of way though it may be apparent is. como las de senda. nevertheless." (4 Manresa. but only by virtue of a title.. 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. vereda o senda de que se trate. Asi. "5° Por razon de los modos de disfrutar las servidumbres. with the approval of the defendant. Las continuas son aquellas cuyo uso es o puede ser incesante. 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. by means of force. y precisamente por eso son y tienen que ser discontinuas. thereby preventing them from going to or coming from their homes to Igualdad Street and the public market of the City of Naga. cannot be acquired through prescription. excludes therefrom the exception established by Article 539. "It is very clear from the allegations of the plaintiffs in their amended and supplemental complaint. carrera y otras de esta clase. it would therefore appear that the easement of right of way may not be acquired through prescription. fenced with barbed wire and closed hermitically the road passage way and their right of way in question against their protests and opposition. may be acquired only by virtue of a title (Articles 537 and 539. Vicente Roco. . y las discontinuas. Jose Roco and with the help of their men and laborers. 488). that on July 10. .

Bishop of Jaro. (Bargayo vs. 37 Phil. but through adverse use of it. at least to the writer of this opinion. 190. 545. that no vested right by user from time immemorial had been acquired by plaintiffs at the time the Civil Code took effect. Vol." . 40 Phil. therefore. 37 Phil. The evidence shows that in February. . may. Under that Code (Article 539) no discontinuous easement could be acquired by prescription in any event. this Tribunal insinuated that the rule that no discontinuous easement. for ten years or more. this Court said: "It is evident. not only by the church. had continually availed itself of the easement. 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. without deciding. In the case of Cuayong vs. would appear to be of the opinion that under the provisions of the Code of . specially by the public. The Code of Civil Procedure went into effect on October 1. the defendants interrupted the use of the road by plaintiffs by constructing and maintaining a toll gate on it and collecting toll from persons making use of it with carts and continued to do so until they were enjoined by the granting of the preliminary injunction by the trial court in December 1912. p. Professor Tolentino in his Commentaries and Jurisprudence on the Civil Code.. 867). might possibly have been changed by the provisions of the Code of Civil Procedure relative to prescription. . at least since the introduction into this jurisdiction of the special law on prescription through the Old Code of Civil Procedure. 972)" Even under the case of Cuaycong vs. but simply the exercise of the right more or less frequently according to the nature of the use. which without objection or protest on the part of the owner of said land.. 1901. Camumot. Jur. believes that the easement of right of way may now be acquired through prescription.. Section 41 thereof. . makes no distinction as to the real rights which are subject to prescription. like an easement of right of way. 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. "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. The term of prescription for the acquisition of rights in real estate is fixed by the Code (section 41) at ten years. "Assuming. and there would appear to be no valid reason. Benedicto. Benedicto (supra). I. be acquired. has given the church the right to such use by prescription. that this rule has been changed by the provisions of the present Code of Civil Procedure relating to prescription. 1911 before the expiration of the term of ten years since the time the Code of Civil Procedure took effect. in the case of Municipality of Dumangas vs.easement of right of way. an easement of right of way over said land has been acquired by prescription. 340.. . under Article 539 of the Old Civil Code. 781. . The minority of which the writer of this opinion is a part. (Cuayong vs. Cannot give said party a vested right to such right of way through prescription. Act No. particularly. not by mere tolerance of the owner of the land. but also by the public. 34 Phil. it is clear that this would not avail plaintiffs.796)." However. (17 Am. 857. why the continued use of a path or a road or right of way by the party. Benedicto. Said law. and that because of said use by the public. and that since its enactment discontinuous easement may be acquired by prescription.

old and new. and it is held that under the present law. unless and until the same is changed or clarified." However. even discontinuous easements. the provisions of the Civil Code. even discontinuous servitudes can be acquired by prescription. continuous. particularly. like the easement of right of way. the opinion of the majority must prevail. may be acquired through prescription: . . 190. public.Civil Procedure relative to prescription. "It is submitted that under Act No. open. In view of the foregoing. the order appealed from is hereby affirmed. No costs. . the easement of right of way may not be acquired through prescription. under a claim of title exclusive of any other right and adverse to all other claimants'. provided it can be shown that the servitude was 'actual. .

Accordingly. Branch XXI. Nor did Antonio Cardenas stop the use of the drain pipe and septic tank by the occupants of Lot 7501-A before he sold said lot to Eduardo Tañedo. Cebu City. Numeriano F . 624. petitioner. unless. the amount of damages suffered by the plaintiff Eduardo Tañedo by reason of such breach of promise to sell. The existence of an apparent sign of easement between two estates. DAMAGES. ceased upon the subdivision of the land and its subsequent sale to different owners who do not have the same interest.. — The dismissal of the complaint on the ground of lack of cause of action.R. EASEMENT. BERNAD. Capangpangan for petitioner. the court can render a valid judgment upon the same in accordance with the prayer of the complaint. DISMISSAL THEREOF FOR LACK OF CAUSE OF ACTION. August 30. the use of the septic tank is continued by operation of law. the movant is deemed to admit hypothetically the truth of the facts thus averred. a trial is necessary to determine. 1988. at the time the ownership of the two estates is divided. established or maintained by the owner of both. Paredes for private respondents. as a title in order that the easement may continue actively and passively.ID. 66520. Spouses ROMEO SIM and PACITA S. the spouses Romeo and Pacita Sim. JUANITO A. 3. also appears to be contrary to law. — The finding of the trial court that petitioner Tañedo's right to continue to use the septic tank. cannot impair. And the test of the sufficiency of the ultimate facts alleged in the complaint to constitute a cause of action. For this purpose. 7th Judicial Region. COMPLAINT. the contrary should be provided in the title of conveyance of either of them.REMEDIAL LAW. and that his promise to sell Lot 7501-B to Eduardo Tañedo appears to be for a valuable consideration. DECISION . is whether or not. respondents. SYLLABUS 1. use of the easement is continued by operation of law. Article 631 of the Civil Code enumerates the grounds for the extinguishment of an easement.CIVIL LAW. The alienation of the dominant and servient estates to different persons is not one of the grounds for the extinguishment of an easement. 2.[G. Presiding Judge of the Regional Trial Court. admitting the facts alleged. ALIENATION OF DOMINANT AND SERVIENT ESTATES. No. no statement abolishing or extinguishing the easement of drainage was mentioned in the deed of sale of Lot 7501-A to Eduardo Tañedo. that the insufficiency of the cause of action must appear on the face of the complaint. erected on Lot 7501-B. Article 624 of the Civil Code provides: "Art. or the sign aforesaid should be removed before the execution of the deed. the use of the servitude. The settled rule where dismissal of an action is sought on the ground that the complaint does not state a cause of action is. if indeed there is such a breach. CASE AT BAR. vs. at the very least. TAÑEDO. in any manner whatsoever. — Considering the admission of defendant Cardenas. DETERMINED IN A TRIAL IN CASE OF BREACH OF PROMISE TO SELL. HON. NOT GROUND FOR ITS EXTINGUISHMENT.] EDUARDO C. This provision shall also apply in case of the division of a thing owned in common by two or more persons. Meinrado P. EXPLAINED. shall be considered. should either of them be alienated. SIM. Hence. is precipitate. and Spouses ANTONIO CARDENAS and MAE LINDA CARDENAS . the new owners of the servient estate (Lot 7501-B). On the contrary." In the instant case.

before the Regional Trial Court of Cebu. Romeo Sim blocked the sewage pipe connecting the building of Eduardo Tañedo built on Lot 7501-A.PADILLA. 4 Upon learning of the sale. Juanito A. in brief. also mortgaged Lot 7501-B to said Eduardo C. while the improvements on Lot 7501-B consist of one four-door apartment of concrete and strong materials. 2 Antonio Cardenas further agreed that he would sell Lot 7501-B only to Eduardo Tañedo in case he should decide to sell it. however. Bernad. llcd The facts. A small portion of the apartment building on Lot 7501-A also stands on Lot 7501-B. and the Order of the same respondent judge.000. one two-storey house of strong materials. and Banco Cebuano. 1622 of the Civil Code as the land sought to be redeemed is much bigger than the land owned by Tañedo. CEB-994. filed an action for legal redemption and damages. docketed therein as Civil Case No. On 5 February 1982. the spouses Romeo and Pacita Sim insisted that the sale executed . to secure the payment of amounts received by him from said spouses as petty loans. Eduardo Tañedo. and a septic tank for the common use of the occupants of Lots 7501-A and 7501-B. Tañedo as a security for the payment of a loan in the amount of P10. with an area of 140 square meters and Lot 7501-B.00. which denied petitioner's motion for reconsideration. as the septic tank in Lot 7501-B services Lot 7501-A and the apartment building on Lot 7501-A has a part standing on Lot 7501-B. Hon. 5 Answering. the Register of Deeds of Cebu City. invoking the provisions of Art. 6 Antonio Cardenas. He also asked Tañedo to remove that portion of his building encroaching on Lot 7501-B. with an area of 612 square meters." 3 Antonio Cardenas. This was confirmed in a letter. Antonio Cardenas and his wife Mae Linda Cardenas. against the spouses Romeo and Pacita Sim. wherein Antonio Cardenas asked Tañedo not to deduct the mortgage loan of P10. are as follows: The private respondent Antonio Cardenas was the owner of two (2) contiguous parcels of land situated in Cebu City which he had inherited from Lourdes Cardenas and more particularly known as Lot 7501-A. 1622 of the Civil Code.000. on 5 December 1983. sold Lot 7501-B to the herein respondent spouses Romeo and Pacita Sim. J p: This is a petition for review on certiorari of the Order issued by the respondent judge. dated 26 February 1982. admitted that he had agreed to sell Lot 7501-B to Eduardo Tañedo and claimed by way of cross-claim against the spouses Romeo and Pacita Sim. the spouses Romeo and Pacita Sim claimed that they are the absolute owners of Lot 7501-B and that Eduardo Tañedo has no right to redeem the land under Art. to the septic tank in Lot 7501-B. 1 Antonio Cardenas. CEB-994 of the Regional Trial Court of Cebu. said Antonio Cardenas sold Lot 7501-A to herein petitioner Eduardo C.00 from the purchase price of Lot 7501-A "because as we have previously agreed. which dismissed the complaint for legal redemption filed by the petitioner in Civil Case No. with a prayer for the issuance of a writ of preliminary injunction. On Lot 7501-A is constructed an apartment building. As a result. I will sell to you Lot 7501-B. upon the other hand. But the latter refused. 7 In answer to the cross-claim. Cebu City Development Bank. a bodega of strong materials. that the Deed of Sale he had executed in favor of said spouses was only intended as an equitable mortgage. Instead. on that same day. Tañedo. Eduardo Tañedo offered to redeem the property from Romeo Sim. dated 20 January 1984.

the present recourse by petitioner Tañedo. -7501-B. LRC (GLRC) Cad. area-wise. but far from compliance of the written agreement. 7501-A of the plaintiff and where part of the plaintiff's apartment is standing on. than the lot owned by petitioner Tañedo. plaintiff suffered moral damages in the form of mental . The dismissal of the complaint on the ground of lack of cause of action. Page No. 1932 as per Deed of Sale notarized by Notary Public. 11 Hence. for lack of cause of action. because the spouses Romeo and Pacita Sim had told him to remove that portion of his building which encroaches upon Lot 7501-B. 9465. Whether or not this is possible should have been determined at the pre-trial stage or trial on the merits.to the defendant spouses. "4. the same should be sold to the plaintiff. Series of 1982.-94-. the spouses Romeo and Pacita Sim filed motions to dismiss the complaint and the cross-claim. since the lot sought to be redeemed. And the test of the sufficiency of the ultimate facts alleged in the complaint to constitute a cause of action. Besides. 10 Tañedo filed a motion for reconsideration of the order. 8 Thereafter. it cannot be denied that petitioner Tañedo cannot redeem the entire Lot 7501-B from the spouses Romeo and Pacita Sim pursuant to the provisions of Art. Romeo Sim and Pacita Sim on July 23. Paragraphs 3 and 4 of the amended complaint read. No. Jorge S. or on 14 October 1983. For this purpose. defendant spouses Antonio Cardenas and Mae Linda Cardenas sureptiously [sic] sold the aforestated Lot No.by Antonio Cardenas of Lot 7501-B in their favor was an absolute one. 1622 of the Civil Code. but his motion was denied on 20 January 1984. the movant is deemed to admit hypothetically the truth of the facts thus averred. the action of petitioner Tañedo is also one for recovery of damages by reason of breach of promise by the respondent Antonio Cardenas to sell Lot 7501-B. The settled rule where dismissal of an action is sought on the ground that the complaint does not state a cause of action is. is whether or not. plaintiff and defendant spouses Antonio Cardenas and Mae Linda Cardenas agreed that in the event they decide to sell the adjacent Lot No. 7501-B of the subdivision plan (LRC) Psd.That by written agreement. Record No. as follows: "3.That due to the sale by the defendant spouses Antonio Cardenas and Mae Linda Cardenas of the property in question to spouses Romeo Sim and Pacita Lim. admitting the facts alleged. the respondent judge issued the questioned order of 5 December 1983 dismissing the complaint and cross-claim. 23638. situated in the City of Cebu. 12 In the instant case. The Court finds merit in the petition. Book No. the petitioner seeks to purchase only that small portion of Lot 7501-B occupied by his apartment building. Omega and entered in his Notarial Register as Doc. is precipitate. However. 9 Acting upon these motions and other incidental motions. that the insufficiency of the cause of action must appear on the face of the complaint. 462. containing an area of SIX HUNDRED TWELVE (612) Square meters more or less which lot is adjacent to Lot No. 11. the court can render a valid judgment upon the same in accordance with the prayer of the complaint. has an area of 612 square meters which is much bigger. a portion of Lot No. 7501 of the cadastral survey of Cebu.

for which he is entitled to a compensation in the amount to be established during the trial of the case and has incurred litigation expenses subject for reimbursement and attorneys fee in the sum of P10.00 which should be chargeable to both defendant spouses. but it shall revive if the subsequent condition of the estates or either of them should again permit its use. (4)By the expiration of the term or the fulfillment of the condition. (5)By the renunciation of the owner of the dominant estate. if the easement is temporary or conditional. a trial is necessary to determine." 14 That there was a written agreement.00. Said article provides: "Art.anguish." 15 Considering this admission of defendant Cardenas. unless when the use becomes possible. 631. that the herein defendants [sic] was required to execute the Deed of Sale described in this paragraph 3 as security for the personal loans and other forms of indebtedness incurred from the Spouses Sims but never as a conveyance to transfer ownership." 13 and the plaintiff (herein petitioner) prayed. between the plaintiff Eduardo Tañedo and the defendant Antonio Cardenas is admitted by the latter. among others: "(c) That defendant spouses Romeo Sim and Pacita Sim. (6)By the redemption agreed upon between the owners of the dominant . specifically denies that herein defendants SUREPTIOUSLY [sic] SOLD the lot in question to the other defendant Spouses Sim. litigation expenses and attorneys fees in the amount of P50. In his answer. with respect to discontinuous easements. (2)By non-user for ten years. 16 also appears to be contrary to law. in accordance with the provisions of the preceding number. the amount of damages suffered by the plaintiff Eduardo Tañedo by reason of such breach of promise to sell. (3)When either or both of the estates fall into such condition that the easement cannot be used. the truth is. and spouses Antonio Cardenas and Mae Linda Cardenas be ordered to pay plaintiff moral damages. the finding of the trial court that petitioner Tañedo's right to continue to use the septic tank. Article 631 of the Civil Code enumerates the grounds for the extinguishment of an easement.Easements are extinguished: (1)By merger in the same person of the ownership of the dominant and servient estates. he alleged the following: "ALLEGATIONS as to written agreement is ADMITTED. this period shall be computed from the day on which they ceased to be used. from the day on which an act contrary to the same took place.000. and. mental torture. erected on Lot 7501-B. sufficient time for prescription has elapsed. if indeed there is such a breach. with respect to continuous easements. but. ceased upon the subdivision of the land and its subsequent sale to different owners who do not have the same interest. Moreover. sleepless nights. as alleged in the complaint.000. at the very least. and that his promise to sell Lot 7501-B to Eduardo Tañedo appears to be for a valuable consideration.

established or maintained by the owner of both. the spouses Romeo and Pacita Sim. the Orders complained of are hereby REVERSED and SET ASIDE. unless. no statement abolishing or extinguishing the easement of drainage was mentioned in the deed of sale of Lot 7501-A to Eduardo Tañedo. Article 624 of the Civil Code provides: "Art. the contrary should be provided in the title of conveyance of either of them. should either of them be alienated. This provision shall also apply in case of the division of a thing owned in common by two or more persons. 17 WHEREFORE.and servient estates. . or the sign aforesaid should be removed before the execution of the deed." As can be seen from the above provisions. With costs against private respondents. On the contrary. the use of the servitude. shall be considered. prLL SO ORDERED.The existence of an apparent sign of easement between two estates. 624. Accordingly. the new owners of the servient estate (Lot 7501-B). the use of the septic tank is continued by operation of law. in any manner whatsoever. cannot impair. use of the easement is continued by operation of law." In the instant case. the alienation of the dominant and servient estates to different persons is not one of the grounds for the extinguishment of an easement. The respondent judge or another one designated in his place is directed to proceed with the trial of this case on the merits. Hence. at the time the ownership of the two estates is divided. as a title in order that the easement may continue actively and passively. Nor did Antonio Cardenas stop the use of the drain pipe and septic tank by the occupants of Lot 7501-A before he sold said lot to Eduardo Tañedo.

CANNOT BE ACQUIRED BY PRESCRIPTION. REVILLES.. "The Court.ID. it shall be established upon two criteria: (1) at the point least prejudicial to the servient estate.] COSTABELLA CORPORATION. they are compulsory and hence. (2) after payment of the proper indemnity. the owner of the dominant estate is not at liberty to impose one based on arbitrary choice. SATORRE. even if the said outlet. ID. to wit: (1) the (dominant) estate is surrounded by other immovables and is without adequate outlet to a public highway.. Inc. JR. Additionally... No. and via of the Romans. PERFECTA L. however. Kapunan & Migallos for petitioner." says Tolentino.. They are demanded by necessity. ID. 80511. Bunag. not a fictitious or artificial necessity for it.." Hence. for one reason or another. — Based on Articles 649 and 650 of the New Civil Code. and (4) the right of way claimed is at a point least prejudicial to the servient estate. FELIX TIUKINHOY. when there is already an existing adequate outlet from the dominant estate to a public highway.ID.. Zosa & Quijano Law Offices for respondents. REQUISITES OF COMPULSORY DEMAND THEREOF. 1991. the owner of the dominant estate may validly claim a compulsory right of way only after he has established the existence of four requisites. and (2) where the distance to a public highway may be the shortest. For to justify the imposition of an easement of right of way. INC. SYLLABUS 1. ID.. to enable owners of isolated estates to make full use of their properties.[G." Yet each case must be weighed according to its individual merits and judged according to the sound discretion of the court. ID. — The true standard for the grant of the legal right is "adequacy. respondents. Roco. "there must be a real. CRITERIA FOR GRANT. "least prejudice" prevails over "shortest distance. AURORA BUSTOS LOPEZ. the burden of proving the existence of the foregoing pre-requisites lies on the owner of the dominant estate. vs. — But while a right of way is legally demandable. ESPINA. petitioner.. Albano. or to secure the interest of the dominant owner. — It is already well-established that an easement of right of way is discontinous and as such can not be acquired by prescription. ID. DEMANDED BY NECESSITY.... JOSEFA C. — Servitudes of right of way are an ancient concept. STANDARD FOR GRANT. 3. CHUANGCO.R. ID. COURT OF APPEALS. According. actus. RIGHT OF WAY. "is not bound to establish what is the shortest. ID. subject to indemnity and the concurrence of the other conditions above-referred to. Garcia & Diaz Law Offices for Katipunan Lumber Co... KATIPUNAN LUMBER CO. that is. and CESAR T. January 25. such as when there are constructions or walls which can be avoided by a roundabout way. the need to open up another servitude is entirely unjustified." 4. Under Article 650 of the Code.CIVIL LAW. (3) the isolation was not due to the proprietor's own acts.ID.. JR. EASEMENT. Under Article 649 of the Civil Code. legally demandable. which lack of access to public roads has denied them. be inconvenient.ID. ID. to one commentator.. 5. 2.. such as when the shortest distance would place the way on a . MANUEL S. which date back to the iter. a longer way may be established to avoid injury to the servient tenement.

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

may only be acquired by virtue of a title and not by prescription. and the plaintiff Perfecto Guangco the sum of TWO HUNDRED PESOS (P200. had accordingly violated the private respondents' vested right. With respect to the dike it allegedly constructed. 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. Moreover.00) attorney's fees. LLphil In its decision. 7 After trial. 1982. 10 That notwithstanding. unless the defendant shall provide another road equally accessible and convenient as the road or passage closed by the defendant. the trial court ordered the petitioner: 1." 11 Thus the appellate court: (1) granted the private respondents the right to an easement of way on the petitioner's property using the passageway in question. until such road is made available and conveniently passable to the plaintiffs and the general public.To open and make available the road in question to the plaintiffs and the general public at all times free of any obstacle thereof. until the passageway claimed by them is opened and made available to them. the appellate court went on to rule that ". 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.00) a month beginning September. 2.00) a month beginning January. under Article 622 of the New Civil Code. with the petitioner questioning the alleged "vested right" of the private respondents over the subject passageway. in the interest of justice and in the exercise by this Court of its equity jurisdiction. and 3. the court a quo rendered a decision on March 15. 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. and the private respondents assailing the dismissal of their complaint insofar as their prayer for the demolition of the petitioner's "dike" is concerned. there is no reason for Us in not treating the easement here sought by appellees Katipunan Lumber Co.000. or if the defendant chooses to provide another road. Inc. Thus. 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.on the subject passageway as they (private respondents) had another existing and adequate access to the public road through other properties.000. . indispensable parties without whom no final adjudication of the controversy could be rendered.To pay the plaintiff Katipunan Lumber Company. the amount of FIVE THOUSAND PESOS (P5. The petitioner in so closing the said passageway. the said construction had benefited the community especially the fishermen who used the same as mooring for their boats during low tide. representing their respective expenditures they had incurred in other beach resorts after the road was closed. Inc.To pay the sum of FIFTEEN THOUSAND PESOS (P15. unless the petitioner should provide another passageway equally accessible and convenient as . contrary to the private respondents' accusation. but also by the community at large. . 1983. 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. and to pay the costs. 8 Both parties elevated the trial court's decision to the Court of Appeals.. 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. 9 The appellate court pointed out that an easement of right of way is a discontinuous one which.

16 Insofar therefore as the appellate court adhered to the foregoing precepts. The Appellate Court however in denying the petitioner's motion for reconsideration stated that: .the one it closed. It is already well-established that an easement of right of way. the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate. (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. 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. 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. after payment of the proper indemnity. Legally. . 649. 14 Now before us. 1987 a resolution 13 denying the said motion. while the road closed by defendant existed since over 30 years before. It is provided under Articles 649 and 650 of the New Civil Code that: Art. 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. the indemnity shall consist in the payment of the damage caused by such encumbrance. 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. the old road could be closed. In any event. but since the existing outlet is inconvenient to the plaintiff. as is involved here. The petition is meritorious. While it is true that there is another outlet for the plaintiff to the main road. the Appellate Court went on to commit a reversible error by considering the passageway in issue as a compulsory easement which the private respondents. . may demand from the petitioner the latter being the owner of the "servient" estate. Unfortunately. 12 On petitioner's motion for partial reconsideration. establishing a permanent passage. Instead. 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. and (3) set aside the trial court's award of actual damages and attorney's fees. it stood correct. as owners of the "dominant" estate.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 discontinuous 15 and as such can not be acquired by prescription. after making the correct pronouncement. the respondent court issued on October 27. This is the gist of Our decision. . yet such outlet is a new road constructed in 1979. llcd Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate. is entitled to demand a right of way through the neighboring estates.

" 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. "there is another outlet for the plaintiffs (private respondents) to the main road. even if the said outlet. where the distance from the dominant estate to a public highway may be the shortest. that the passageway they seek to be re-opened is at a point least prejudicial to the petitioner. Based on the foregoing. 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. much more introduce any evidence. the private respondents failed to allege. as alleged by the petitioner in its answer to the complaint." 18 Thus. It is therefore of great importance that the claimed right of way over the petitioner's property be located at a point least prejudicial to its business. the burden of proving the existence of the foregoing pre-requisites lies on the owner of the dominant estate. Additionally. 24 Under Article 649 of the Civil Code. there is absent any showing that the private respondents had established the existence of the four requisites mandated by law. subject to indemnity and the concurrence of the other conditions above-referred to. Hence. it must undeniably maintain a strict standard of security within its premises. (3) the isolation was not due to the proprietor's own acts. for which a compulsory easement is demandable. it ordered the reopening of the old passageway on the ground that "the existing outlet (the other outlet) is inconvenient to the plaintiff. For to justify the imposition of an easement or right of way. For one. 23 They are demanded by necessity. That indubitably will doom the petitioner's business. actus. they are compulsory and hence. the convenience. "there must be a real. be inconvenient. Insofar therefore as the Appellate Court declared the case to be proper as a controversy for a compulsory right of way. and via of the Romans. for one reason or another. not a fictitious or artificial necessity for it. to enable owners of isolated estates to make full use of their properties. that is. privacy. Considering that the petitioner operates a hotel and beach resort in its property. when there is already an existing adequate outlet from the dominant estate to a public highway. the respondent Court of Appeals likewise admitted that "legally the old road could be closed. and (4) the right of way claimed is at a point least prejudicial to the servient estate. the need to open up another servitude is entirely unjustified. the private respondents' properties can not be said to be isolated.This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts. Finally." Hence. it is apparent that the Court of Appeals lost sight of the fact that the convenience of the dominant estate has never been the gauge for the grant of compulsory right of way. . On the contrary. Otherwise. the owner of the dominant estate may validly claim a compulsory right of way only after he has established the existence of four requisites. insofar as consistent with this rule." 19 Yet. LexLib Servitudes of right of way are an ancient concept." 20 On this score.The easement of right of way shall be established at the point least prejudicial to the servient estate. which date back to the iter. and confirmed by the appellate court. 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. 650. legally demandable. 21 To be sure. the true standard for the grant of the legal right is "adequacy. this Court is constrained to hold that it was in error. they failed to prove that there is no adequate outlet from their respective properties to a public highway. which lack of access to public roads has denied them. Art. 17 Here. and. and safety of its clients and patrons would be compromised.

28 But while a right of way is legally demandable. Costs against the private respondents. a longer way may be established to avoid injury to the servient tenement. prLL WHEREFORE. Manresa. however. and judged according to the sound discretion of the court. such as when the shortest distance would place the way on a dangerous decline. the answer is in the affirmative. one that can sufficiently fulfill the dominant owner's necessities. SO ORDERED. in any other case. 2 6 Thus. . 1986. .As also earlier indicated. otherwise adequate. Under Article 650 of the Code. as Manresa had pointed out. What is important to consider is whether or not a right of way is necessary to fill a reasonable need therefor by the owner. . the "dominant" estate can not demand a right of way. is in fact isolated for all the effects of the easement requested by its owner. . Hence. while an existing right of way may have proved adequate at the start. If the river may be crossed conveniently at all times without the least danger. if the passageway consists of an "inaccessible slope or precipice. the decision dated May 30. . the dominant owner's need may have changed since then. it cannot be said that the estate is isolated. "least prejudice" prevails over "shortest distance. to one commentator. and (2) where the distance to a public highway may be the shortest. "The court. 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." 30 It is based on these settled principles that we have resolved this case. however. According. of the respondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby DISMISSED. 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 . that is. each case must be weighed according to its individual merits. for which Article 651 of the Code allows adjustments as to width. but also that which does not have one sufficiently safe or serviceable. says: "In truth. and the estate itself need not be totally landlocked. On the other hand. the owner of the dominant estate is not at liberty to impose one based on arbitrary choice." 25 The isolation of the dominant estate is also dependent on the particular need of the dominant owner. 1987. So also. the question of when a particular passage may be said to be "adequate" depends on the circumstances of each case. and not mere convenience for the dominant estate. or to secure the interest of the dominant owner. to the highway. although by the existence of that passageway the property can not be truly said that the property is isolated. . "is not bound to establish what is the shortest. there must be a real necessity therefor." says Tolentino. such as when there are constructions or walls which can be avoided by a roundabout way." 27 it is as if there is no passageway. not only the estate which absolutely does not possess it should be considered in this condition. although the same may not be convenient. an estate bordering a public road through an inaccessible slope or precipice. Of course. if there is an existing outlet." 29 Yet. and the resolution dated October 27. it shall be established upon two criteria: (1) at the point least prejudical to the servient state.

DECISION FERNAN. 1991. To force petitioner to leave his jeepney in the highway. it is the needs of the dominant property which ultimately determine the width of the passage. ID. Batangas ** Petitioner . ID. Oscar Gozos for private respondents.. ABSENCE OF ACCESS TO A PUBLIC ROAD. ID. March 11. the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate pursuant to Article 649 of the Civil Code. — Where a private property has no access to a public road. Mendoza for petitioner. We reverse. RIGHT OF WAY.. ID.] TOMAS ENCARNACION. Petitioner should not be denied a passageway wide enough to accommodate his jeepney since that is a reasonable and necessary aspect of the plant nursery business. is sheer pigheadedness on the part of the servient estate and can only be counter-productive for all the people concerned. * respondents. And these needs may vary from time to time. vs.. Talisay.[G.. petitioner. PAYMENT OF INDEMNITY WHERE EASEMENT IS CONTINUOUS AND PERMANENT.R.ID. Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta Magsino Viuda de Sagun are the owners of two adjacent estates situated in Buco.. But the business grew and with it the need for the use of modern means of conveyance or transport. Both the trial court and the Appellate Court ruled that petitioner is not so entitled. 3. No. hence the recourse to this Court. — Under Article 651 of the Civil Code. SYLLABUS 1. WIDTH OF THE PASSAGE DETERMINED BY THE NEEDS OF THE DOMINANT PROPERTY. Esteban M.. ID..J p: Presented for resolution in the instant petition for review is the not-so-usual question of whether or not petitioner is entitled to a widening of an already existing easement of right-of-way. it has the right of easement over adjacent servient estates as a matter of law. EASEMENTS. Manual hauling of plants and garden soil and use of pushcarts have become extremely cumbersome and physically taxing.ID. he and his family could easily make do with a few pushcarts to tow the plants to the national highway.CIVIL LAW. ID. ID.ID. The facts are undisputed. 4.. — Where the easement to be established in favor of petitioner is of a continuous and permanent nature. THE HONORABLE COURT OF APPEALS AND THE INTESTATE ESTATE OF THE LATE EUSEBIO DE SAGUN AND THE HEIRS OF THE LATE ANICETA MAGSINO VIUDA DE SAGUN. C. exposed to the elements and to the risk of theft simply because it could not pass through the improvised pathway. 77628. CASE AT BAR. — When petitioner started out as a plant nursery operator. 2...

the lower court rendered judgment dismissing petitioner's complaint. the servient estate stands between the dominant estate and the national road. a roadpath measuring 25 meters long and about a meter wide was constituted to provide access to the highway. his request was turned down by the two widows and further attempts at negotiation proved futile. However. It ruled: "It is clear. He would use said pathway as passage to the highway for his family and for his customers. through the dried river bed eighty meters away. when the servient estate was not yet enclosed with a concrete fence. on the South by Tomas Encarnacion. One-half meter width of the path was taken from the servient estate and the other onehalf meter portion was taken from another lot owned by Mamerto Magsino. persons going to the national highway just crossed the servient estate at no particular point. On December 2. that plaintiff at present has two outlets to the highway: one. Private respondents co-own the 405-square-meter servient estate which is bounded on the North by the National Highway (Laurel Talisay Highway). the attention of the lower court was called to the existence of another exit to the highway. that jeep could not pass through the roadpath and so he approached the servient estate owners (Aniceta Vda. which is bounded on both sides by concrete walls and second.owns the dominant estate which has an area of 2. 2 During the trial. 1 It was also about that time that petitioner started his plant nursery business on his land where he also had his abode. destroying in the process one of the concrete fences and decreasing defendants' already small parcel to only about 332. To his utter consternation. Prior to 1960. "The reasons given for his claim that the one-meter passageway through defendants' land be widened to two and one-half meters to allow the passage of his jeep. 1984.5 square meters. just because it is nearer to the highway by 25 meters compared to the second access of 80 meters or a difference of only 65 meters and that passage through defendants' land is more convenient for his (plaintiff's) business and family use are not among the conditions specified by Article 649 of the Civil Code to entitle the plaintiff to a right . on the East by Mamerto Magsino and on the West by Felipe de Sagun. on the south by Taal Lake. In other words. in 1960 when private respondents constructed a fence around the servient estate. In January. only eighty (80) meters away from the dominant estate. therefore.590 square meters and bounded on the North by Eusebio de Sagun and Mamerto Magsino. de Sagun and Elena Romero Vda. 1985. on the East by Felino Matienso and on the West by Pedro Matienzo. petitioner was able to buy an owner-type jeep which he could use for transporting his plants. No compensation was asked and none was given for the portions constituting the pathway. de Sagun) and requested that they sell to him one and one-half (1 1/2) meters of their property to be added to the existing pathway so as to allow passage for his jeepney. The plaintiff has an adequate outlet to the highway through the dried river bed where his jeep could pass. through the defendants' land on a one meter wide passageway. it became more and more difficult for petitioner to haul the plants and garden soil to and from the nursery and the highway with the use of pushcarts. Petitioner's plant nursery business through sheer hard work flourished and with that. Petitioner then instituted an action before the Regional Trial Court of Batangas. Branch 6 (Tanauan) to seek the issuance of a writ of easement of a right of way over an additional width of at least two (2) meters over the De Saguns' 405-square-meter parcel of land. However.

. pp. 4 With the non-availability of the dried river bed as an alternative route to the highway. LexLib Where a private property has no access to a public road. (TSN. and may accordingly be changed from time to time. that access is grossly inadequate. and that the only reason why he wanted a wider easement through the De Sagun's estate was that it was more convenient for his business and family needs. contrary to the conclusions of the courts a quo. during the rainy season. it can only be used at certain times of the year. 1987 and rejected petitioner's claim for an additional easement. But certainly that should not detract from the more pressing consideration that there is a real and compelling need for such servitude in his favor. it is the needs of the dominant property which ultimately determine the width of the passage. it must literally jump four (4) to five (5) meters up. the Court finds that petitioner has sufficiently established his claim for an additional easement of right of way. And these needs may vary from time to time. The courts below have taken against petitioner his candid admission in open court that he needed a wider pathway for the convenience of his business and family. While there is a dried river bed less than 100 meters from the dominant tenement. In sustaining the trial court." 3 On appeal. Moreover. With the inherent disadvantages of the river bed which make passage difficult. August 2. Article 651 of the Civil Code provides that "(t)he width of the easement of right of way shall be that which is sufficient for the needs of the dominant estate. For the jeep to reach the level of the highway. Thus. To force petitioner to leave his jeepney in the highway. it is if there were no outlet at all.of way for the passage of his jeep through defendant's land. 1985. Manual hauling of plants and garden soil and use of pushcarts have become extremely cumbersome and physically taxing. it has the right of easement over adjacent servient estates as a matter of law. We cannot begrudge petitioner for wanting that which is convenient. and (2) when. But the business grew and with it the need for the use of modern means of conveyance or transport. the river bed is impassable due to the floods. 24-26). After evaluating the evidence presented in the case. he and his family could easily make do with a few pushcarts to tow the plants to the national highway. is sheer pigheadedness on the part of the servient estate and can only be counterproductive for all the people concerned. The Appellate Court took into consideration the presence of a dried river bed only eighty (80) meters away from the dominant estate and conjectured that petitioner might have actually driven his jeep through the river bed in order to get to the highway. even if there is one. In the present case. if not impossible. exposed to the elements and to the risk of theft simply because it could not pass through the improvised pathway. the river bed route is traversed by a semiconcrete bridge and there is no ingress nor egress from the highway. the Court of Appeals affirmed the decision of the trial court on January 28. Petitioner should not be denied a passageway wide enough to accommodate his jeepney since that is a reasonable and necessary aspect of the plant nursery business. it is difficult or dangerous to use or is grossly insufficient. the Court of Appeals opined that the necessity interposed by petitioner was not compelling enough to justify interference with the property rights of private respondents. When petitioner started out as a plant nursery operator. Generally. the right of way may be demanded: (1) when there is absolutely no access to a public highway." This is taken to mean that under the law. we transfer our attention to the existing pathway which straddles the adjoining properties of the De Sagun heirs and Mamerto Magsino.

or any person who by virtue of a real right may cultivate or use any immovable. the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate pursuant to Article 649 of the Civil Code which states in part: "Art. 1987 is REVERSED and SET ASIDE.5 square meters after payment of the proper indemnity. SO ORDERED. 649. the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate.The owner. it would be well for respondents to take the offer of petitioner seriously. Petitioner Tomas Encarnacion is hereby declared entitled to an additional easement of right of way of twenty-five (25) meters long by one and one-half (11/2) meters wide over the servient estate or a total area of 62. the law decrees that petitioner must indemnify the owners of the servient estate including Mamerto Magsino from whose adjoining lot 1/2 meter was taken to constitute the original path several years ago. the appealed decision of the Court of Appeals dated January 28. establishing a permanent passage. Since the easement to be established in favor of petitioner is of a continuous and permanent nature.We are well aware that an additional one and one-half (11/2) meters in the width of the pathway will reduce the servient estate to only about 342. But petitioner has expressed willingness to exchange an equivalent portion of his land to compensate private respondents for their loss. 5 But unless and until that option is considered. is entitled to demand a right of way through the neighboring estates. .5 square meters. after payment of the proper indemnity. in conformity with the foregoing discussion. "Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate. xxx xxx xxx" WHEREFORE. which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway. Perhaps.

that the entire wall in question belongs to one of the property owners. In the written opposition above alluded to. PRESUMPTIONS WITH RESPECT TO PARTY WALLS.R. 1907. that the property is free from all incumbrance. extended his southwest boundary line to a potion of the lot of the said heirs of Tuason and Santibañez in the form indicated by the red line in the annexed plan. vs. by the estero of Santa Cruz and the property of Carmen de Ayala de Roxas.231 and the buildings thereon at P30. counsel for the heirs of Pablo Tuason and Leocadia Santibañez alleged that the parties whom he represents are owners in common of the property adjoining that of the petitioner on the southwest. and on the northwest by Calle Escolta and the aforesaid property of Carmen de Ayala de Roxas. 573. opponents-appellees. 142 and 152. on the southwest by the property of the heirs of Tuason and Santibañez. that the total area is 3. After a written opposition was presented by Felipe R. the attorneys for Edwin Case filed a petition with the Court of Land Registration requesting that the property owned by the applicant. petitioner-appellant.) DECISION TORRES. Case. described in the petition.20 square meters of land owned by the said Ayala de Roxas. and Roman Lacson for appellant. SYLLABUS 1. counsel for the applicant. situated in Calle Escolta. or. in making the plan attached to his petition.000. 5044. Sanz & Opisso for appellees. — The legal presumption of the existence of an easement of a party wall is limited to the three cases contained in article 572 of the Civil Code. consists of a parcel of land and the building erected thereon bearing Nos. 1907. while there is no exterior sign to destroy such presumption and to support a presumption against the party wall. that the latter.REALTY. that is to say. that on the northeast side the property had in its favor the right of easement over some 234.] EDWIN CASE.[G. on behalf of the heirs of the late Pablo Tuason and Leocadia Santibañez. December 1. on the southeast by the River Pasig. amended the original petition and set forth: that said property. it is bounded on the northwest. 1906. and no one has any interest therein or right thereto.251. Civil Code. be registered in accordance with the provisions of the Land Registration Act.84 square meters. Hartigan & Rohde. THE HEIRS OF TUASON Y SANTIBAÑEZ. its description and boundaries being detailed in the plan attached to the petition. that according to the last assessment made for the purposes of taxation the land was valued at P170. Caballero on the 6th of June. (Art. No. approximately. J p: On the 7th of December. 1909. that the true dividing line between the property of the petitioner and that . and is that of juris tantum. district of Binondo. Rosado. this must be accepted unless the contrary should appear from the title deeds of the adjoining properties. and that the applicant acquired the property by succession from Doña Clotilde Romree. on August 2. EASEMENTS.

the petitioner moved for the new trial on the ground that the evidence was not sufficient to justify the decision of the court in excluding the wall claimed by the opponents. 4. the court also ordered the cancellation of the registration shall be detailed to fix the same at the expense of the parties. it appears that the property was then already inclosed by a stone wall. 1908. and of the opponents. among others that in the public document by which one of their original ancestors acquired on the 19th of April. as he claimed in the first instance. 3. X. 13. and 14 of said plan. and after declaring a general default granted the registration of the property described in the application filed by Edwin Case. and submitted to this court together with the proper assignment of errors. first entry. 9. The said motion was overruled on the 15th of the same month. 13. but should they not reach an agreement a surveyor of the Court of Land Registration shall be detailed to fix the same at the expense of the parties. Edwin Case. principal of the petitioner. now before this court. when the applicant made alterations in the buildings erected on his land. and that about two years ago. he improperly caused a portion of them to rest on the wall owned by the parties whom he represents. 8. 9. the property now possessed by them. at points 12. T. sustaining the opposition offered by the representative of the heirs of Pablo Tuason and Leocadia Santibañez. approved. has not been impugned by the applicant. in so far as it excludes the said decision was contrary to the law. the heirs of the late Tuason and Santibañez. and in view of the fact that lines drawn on the plan offered in evidence by the applicant under letter G. to which overruling the applicant excepted and announced his intention to perfect the corresponding bill of exceptions which was filed. 3. or is the property of the said opponents. taking as a base for the same the amended line of walls drawn on the plan of the opponents. once this decision shall have become final. 7. 5. reducing the are to whatever it may be after the amendment has been made. On the contrary. and 14 on the plan which accompanist the written opposition. or is a dividing wall as affirmed in his brief in this second instance. 10. let the dividing line of both properties be fixed by common accord between the two parties and their experts. found that the wall in controversy belongs to the opponents for the reason. 10. U. and R. with the exclusion of the wall claimed by the opponents and shown on their plan by the lines numbered 1. which was offered in evidence by the opponents. and their exhibits were made of record. 8. The case was brought to trial. The question is whether the wall that with slight interruption runs from Calle Escolta to the River Pasig. 6. the court also ordered the cancellation of the registration entries of the property entered in the name of Clotilde Romree. so that it may agree with the wall indicated by the numbers 1. 4. at page 142 and those following of volume 15. On the 12th of August. section of Binondo and 52 of the register. 11. It the appeal interposed by the applicant against the decision of the Court of Land Registration. 2. made an inspection of the two properties. 12. 5. The court. 828. and 14. 1908. that said decision was contrary to the law. 13. in view of which it entered judgment on the 31st of July. both parties adduced evidence. belongs to the former. in so far as it excludes the said wall. 7. and that he be sentenced to pay the costs. that said walls belong to the opponents. This document. 6. the questions set up are merely of fact. The trial court after considering the evidence adduced by both parties to the suit. 2. property No. that the applicant be compelled to remove the supports that he placed for his buildings on the wall of the representatives of the petitioner. S. 12.of the said heirs is the walls indicated in black ink on the accompanying plan. 11. and that the conclusions of fact therein are openly and manifestly contrary to the weight of the evidence in so far as they referred to the exclusion of said wall. it was acknowledged . for which reason the opponent prayed the court to direct the applicant to amend the line marked in his plan with the letters Y. 1796. are not correctly drawn. assisted by the interested parties and their respective experts. and which divides the adjoining properties of the applicant.

undoubtedly to allow the passage of air and light. for the very reason that it supports only the property of the opponents and not that of the petitioner. In spite of this it can not be presumed that the aforesaid portion was a party wall. It should. equivalent to a little more than numbers 30 to 25 on the plan of the petitioner. and besides. 31. and is that of juris tantum unless the contrary appear from the little of ownership of the adjoining properties. and which constitutes the cesspool on the property of the latter. Tuason. be noted that portion of the wall between the numbers 3. 5.) The intermediate portion of the wall in question. It is fully proven that two walls extend from Calle Escolta to the interior of both properties. however. These consist of constructions made by the petitioner himself on his own property which entirely destroy any presumption that it is a party wall. 573. There is not sufficient proof to sustain such claim. Civil Code. or where there is no exterior sign to destroy such presumption and support a presumption against the party wall. can not be a party wall. belongs to him. that the entire wall in controversy belongs to one of the property owners. 31. and which respectively support the edifices of the petitioner and of the opponents from points 36. These things constitute exterior signs and were recorded as the result of personal inspection by the trial court in company with the experts of both parties. that is to say. (Art. or proof to the contrary. the building erected thereon disproves the pretension of the petitioner. the one backing the other. that when one of their ancestors and principals acquired the property the lot was already inclosed by the wall on which the building was erected. and it has so been admitted by counsel for the opponents. among others. and indeed gives rise to a presumption against it. The legal presumption as to party walls is limited to the three cases dealt with in the said article of the code. is the portion against which no other wall appears to have been erected on the land owned by Mr. Case. This section of the wall of the opponents embraced within the points mentioned in the plans offered in evidence by the parties. 32. lying between numbers 6 and 13 on the defendants' plan. 32. Two of them are beveled on the side toward the land of the objectors. inasmuch as the latter have proven by means of a good title that has not been impugned by the petitioner. and the third had recently imbedded in the wall on the side of the property of the opponents. 35. and 30 on the plan of the petitioner corresponding to points 1 to 6 on that of the opponents. one-half of which along its entire length would belong to the adjoining building owned by Mr. by apart from the record discloses the existence of certain unquestionable signs. Case. The above documentary evidence has not been overcome by any other presented by the petitioner. but the exclusive property of the . 34. and 6 on the plan of the opponents. 4. Three openings have been made in the wall. These signs positively and conclusively prove that the said wall is not a party wall. the opponents having lost control over the area of land covered by the said cesspool together with the walls that inclose it. it must therefore be understood that in the purchase of the property the wall by which the land was inclosed was necessarily included.as the title deed of the property adjoining that of the applicant by the witness Juan B. in dividing walls of adjoining buildings up to the common point of elevation. who knows the one and the other. 33. unless there is a title or exterior sign. Under article 572 of the Civil Code the easement of party walls is presumed. which corresponds to numbers 33. and 30 of that of the petitioner. and that it was not exclusively owned by the defendants. for the reason that the petitioner had acquired it by prescription.

defendant. ad which the opponents admit that he had acquired by prescription. which is rather a low one. So ordered. as we do hereby affirm it. from the Escolta to the Rive Pasig. and considering that the judgment appealed from is in accordance with the law and the merits of the case. with the exception of the small portion of the wall in question occupied by the latrine on the property of the petitioner. . It is absolutely independent of the built by the petitioner. is a party wall. and 27 does not prove that the whole of the wall. more than a century ago. forms part of that which has surrounded the property from the date of its acquisition. In view of the foregoing. until the present date. and it has been further shown in the case that at one time an old building belonging to the opponents used to rest on a portion of the wall near the river. the evidence to the contrary conclusively proves that it belonged exclusively to the defendants. It therefore appears from the proceedings that. 28. 29. That he built a terrace about four years previously over the wall between points 30. It was shown in the proceedings as resulting from the above-mentioned ocular inspection that at the side of the said wall. a higher one erected on the petitioner's land and backed against the one in question. there is another. with the costs against the petitioner. He knew perfectly well that he had no right to rest his building on the latter. The first one. and that it is the exclusive property of the objectors and is not a party wall can not be denied. Neither can it be presumed that part of the wall bordering on the River Pasig comprised between points 13 and 14 is a party wall. it is our opinion that the same should be affirmed in full. This is further confirmed by the testimony of the witnesses at the trial. the whole of said wall from the Escolta to the River Pasig can not be presumed to be a party wall. but it does show that he usurped a portion thereof to the prejudice of the real owner. The fact that the petitioner built a wall and backed it against the one in question to support the edifice he had constructed between points 21 and 13 of the corrected plan is a further indication that the neighboring wall is not a party one. as has been said.

REALTY. Leodegario Azarraga for defendant. of the dimensions of 30 centimeters square and. AND VIEW. Civil Code. marked 1 on Exhibit A. both on Calle Pescadores and Calle P. Neither can side nor oblique views be opened over said property. 582. — The owner of a wall which is not a party wall. "It is likewise established that the entrance to the defendant's house is in Calle Pescadores. at the height of the ceiling joists or immediately under the ceiling. ID. December 29.. and this action was brought. that the defendant in the building of his house has made several openings and windows in the walls of the house on both sides overlooking the property of the plaintiffs' that at the time the defendant was building his house. 581. erected as stated. I find that the defendant is in possession of a parcel of land on the corner of Calles Pescadores and P. Civil Code.. unless there is a Distance of 60 centimeters. vs.] SEVERINA and FLORA CHOCO. who. defendant-appellant. appears to have suggested an amicable adjustment of the matter. Rada. EASEMENTS. on the balcony of said house. ISIDRO SANTAMARIA. city of Manila.) DECISION MAPA. AIR. adjoining another's estate. and taking it as the front of his house he has put a large window in its upper story. with an iron grate embedded in the wall and a wire screen.ID. Rada. from the evidence. (Art. and the windows and openings were being made.[G. or balconies or any similar openings projecting over the estate of a neighbor. Manuel Torres for plaintiffs. that the plaintiffs are the owners of the land on both sides of defendant's house. the plaintiffs protested. SYLLABUS 1. and that he has erected a house thereon flush with the boundary line of the adjacent property. may make in it windows or openings to admit light. LIGHT. and that this window and its balcony do not face directly toward the house of the plaintiffs. but the adjustment was not made. in any case. 1911. ID. J p: The judgment rendered in this case in first instance is in part as follows: "From the evidence presented at the trial. in the district of Tondo.R. Rada. — Windows with direct views. plaintiffs-appellants. overlooking Calle P. . No. can not be made if there is not a distance of at least 2 meters between the wall in which they are built and the said estate. 6076. and the defendant received the written protest and referred it to his counsel. and later on and in the year 1905 made written protest and demand on the defendant. (Art.) 2.

while the premises of the plaintiff may be seen from it. as appears on Exhibit A. which are marked 8 and 9 on Exhibit A. and are of a greater dimension than thirty centimeters square. have a wire screen but no iron grate embedded in the wall. "The windows 8 and 9. and. and on the same side there are three windows which are marked 2. with the exception of that marked 7. or that in some other way the provisions of the law be complied with so that they may remain open. adjoining another's estate. "There are two other windows on the same side located immediately under the ceiling. "On the right hand side of the house. "The window marked 7 on Exhibit A has a wire screen. or immediately under the ceiling. located immediately under the ceiling of the first story. "The window marked One on Exhibit A is located in a balcony which overlooks the street. "It also appears that there is wire screening over all these openings or windows. as indicated on Exhibit A. are less than thirty centimeters square and have a wire screen. in the first story of the house. and are placed immediately under the ceiling of the first story. and 4 on Exhibit A. and each of these windows is equally divided into four panes. and have not the iron grate embedded in the wall. "All these openings and windows can be made to comply with the law. may make in it windows or openings to admit light at the height of the ceiling joists. with an iron grate embedded in the walland a wire screen. "The law provides that the owner of a wall which is not a party wall. there is a window or opening in the wall of the house in the second story. as hereinbefore described. and these windows are each 50 by 80 centimeters. 3. as indicated on Exhibit A."There have also been constructed two windows in the rear wall of the house of the defendant. 3. and is located a little more than half way from the floor of the ceiling of the second story and this is subdivided into smaller panes. have a wire screen but are more than thirty centimeters square. it is not adjoining their estate. entering from Calle Pescadores. "In this case the windows are in a wall not a party wall adjoining plaintiff's estate. and each of the three is 25 by 25 centimeters. "The court finds that the plaintiffs are entitled to a decree for closing all the windows or openings in the walls of the defendant's house. which is about 25 by 35 centimeters. and 4. and the other about 75 by 90 centimeters. and the windows marked 2. which is not immediately . which are marked 5 and 6 on Exhibit A and also on Exhibit C. which directly overlook the premises of the plaintiffs. thirty centimeters square. "The windows marked 5 and 6. but is more than 30 centimeters square and has not the iron grate embedded in the wall. but there does not appear to be the iron grate embedded in the wall. and one of these windows is about 35 by 67 centimeters.

In reality. 3. 5. in so far as he said that "a part of the window in question is in front of the plaintiffs' property. 4. at least. but even though it did not and only a side or oblique view of the lot could be obtained from it." And certainly if it is in front of this lot. can not be made if there is not a distance of. which must be closed. 8. and forever prohibiting the opening of the windows and openings marked. and a person approaching the window may clearly see the said lot. Nos. unless there is a distance of 60 centimeters. This opinion is corroborated by the testimony of the defendant's witness who took the said photographs. 2. Severina and Flora Choco. 5.under the ceiling (techo). To judge from the photographic views. 2. With respect to the second assignment of error. as hereinbefore stated. this window is perpendicular to the boundary line of the said lot. or balconies or any similar openings projecting over the estate of the neighbor. 7. 2 meters between the wall in which they are built and said estate. it is not contiguous to the latter's property. "Neither can side nor oblique views be opened over said property. 1 in the photographic Exhibits A and D. might continue open if they were fixed so as to comply with the requirements of the law as regards their dimensions and the placing of iron grates embedded in the wall. and consequently the judgment appealed from should be modified in this sense. there is no distance at all between the said window and the plaintiffs' lot. 1. its opening is a manifest violation of the provisions of article 582 of the Civil Code which reads as follows: "Windows with direct views. though the appellants' lot can be seen from this window.'' The plaintiffs appealed from that judgment and allege in their appeal in this instance: 1. as we have said. referred to in the first assignment of errors. 3. the question raised by the appellants concerns the proper interpretation of article 581 of the Civil Code which prescribes as follows: . 8. It appears obvious to us. and 60 centimeters in the second. therefore. forever prohibiting the opening of the window marked No. it is unquestionable that it directly overlooks the same. it opens on the boundary line between the said lot and that of the appellee and is situated perpendicularly above a part of the wall that belongs to the appellants.That the trial court also erred in ordering in his judgment that the openings and windows. that the window No. 2. and 9. and against the defendant. which must be closed or made to conform to the requirements of law with regard to dimensions and an iron grate embedded in the wall. on the ground that the said window is in the balcony which overlooks Calle Padre Rada and that. "Let judgment be entered in favor of the plaintiffs.That the lower court erred by not ordering in his judgment the final and perpetual closing of the large window opened in the balcony of the back part of the appellee's house and marked No.That the lower court also erred in denying the appellants' petition for a rehearing. the window in question must be closed. 3. because. 4." Because of the lack of the distance required by law. since between it and the plaintiffs' property there does not intervene the distance required by law — that of two meters in the first case. is next to the appellants' lot. as regards this window. Exhibits A and D. 6. with the costs of the action. it could not be kept open. as hereinbefore stated. from the evidence. 6. Isidro Santamaria. and 9.

therefore it is not true that there may be joists only in the top story. the latter. therefore. and 9. the sole place or height where openings or windows may be made in conformity with the law. illegal. Nor is their definition exact of the word joists. . "We understand by ceiling joists — say the appellants — in a building composed of any given number of stories. provided that he brought them within the terms of the law. in the defendant's Exhibit A. counting the stories from below. and not. pavement and ceiling. those numbered 5. the upper one alone. since. and. these are. as it is employed in article 581 of the Code. 4. in the judgment. the long pieces to which are nailed the boards that form the ceiling of the last story of the building. 3. are found the words or immediately under 'los techos. which is the first condition required by law. volume 10. that the option allowed the defendant to keep them open."The owner of a wall which is not a party-wall. that is. every story has a ceiling. in the last analysis they are what support and secure the structure of the story immediately above. at the height of the ceiling joists or immediately under the ceiling. understood to be a kind of beam laid horizontally and serving in buildings to support others or for bracing and connecting the parts of the structure. 2." According to these definitions each floor necessarily has joists. the ceiling. By techo is understood that part of a construction which covers the rooms under it and certainly forms one of the essential parts of every story. in any case. 6. 6.) Consequently. have the additional defect of being greater than 30 centimeters square. The trial judge therefore ordered. are called joists. intended to serve for connection and main support of the timbers of the different floors that separate the stories of the building. consequently." The windows mentioned in this part of the appeal are those indicated by Nos. . that is. adjoining another's estate. without the least doubt. and 9. page 448: "The horizontal timbers that are placed upon the tops of the uprights. According to the dictionary of the Spanish Academy. in architecture. and this interpretation which we give to the words ceiling joists must be that most in harmony with the spirit of article 581 of the code. can have but one techo. some of them measure more and others less than 30 centimeters square and none of them have iron grates embedded in the wall. being that part of the story that is visible to the observer situated below in the room covered by it. by Montaner and Simon. They are all situated immediately under the ceiling of the first floor and are provided with wire screens. A story is composed of earth.' in order to indicate. may make in it windows or openings to admit light. ." This last assertion is incorrect. It is needless to say that a building. though composed of several stories. is contrary to the same and. none of them fully comply with the conditions required by law. that is. Mucius Scaevola says in his Civil Code. in explanation. The appellants maintain that these windows should have been ordered closed absolutely and finally. It is alleged as a ground for such averment that none of the windows referred to are at the height of the ceiling joists. beams. 8. 8. Owing to this last circumstance. what are commonly called beams. since immediately after them in the same article. (Hispano-American Encyclopedic Dictionary. as . with an iron grate embedded in the wall and a wire screen.5. of the dimensions of 30 centimeters square and. that all the aforementioned windows be closed or that they be made to conform to the law with respect to their dimensions and the placing of iron grates embedded in the wall. the subject of our examination. as the appellants maintain. moreover.

the appellants claim by saying that they understand to be such the long timbers to which are fastened the boards of the ceiling at the top story of the building. they form. the object of the law in authorizing the opening of the windows in question in all the stories of a building. the judgment appealed from in so far as it refers to said window being thus modified. as article 581 itself says. which is undoubtedly much less than that of a whole story. whenever in them the joists are actually joined to or placed next to the techo which forms the top of each of said stories. at the height of the ceiling joists. which surely can not be more than one. Aside from what has been said here. In referring to the lower stories either phrase may. carefully considered. fail to apply. the words of article 581 of the code. and it is evident at a glance that the rooms of the lower stories have as much need for light as those of the top story. And because it certainly does not have them. The defendant is ordered to close finally and forever the window marked No. On the contrary. the phrase or immediately under "los tecllos" alone being thereto applicable. So that. p. It has only to support the weight of the roof. with regard to which both phrases are applicable as they have at the same time joists and techo. Both phrases therefore express the same idea with reference to the lower stories. to furnish light to the rooms. but affirmed in all other respects. in referring to the top story. 1 in Exhibit A. article 581 makes use of the phrase or immediately under 'los techos. then. whichever it may be. is the reason why the code in said article 581 employs the phrase or immediately under "los techos" in referring to the top story. in distinction from the lower stories. the upper limit of the different stories of a house. as above set forth. according to Mucius Scaevola (work cited. it can not be said that the top story has joists. In our opinion what the author cited means is that in speaking of the top story. Their purpose is. is clear. where it is permissible to open the windows called regulation windows. The author's words in expounding this theory in his commentary on article 581 of the Civil Code are as follows: "We said elsewere that these (the joists) were the horizontal timbers that rest upon the tops of the uprights. and therefore. .'" This does not mean that the italicized phrase refers solely and exclusively to the top story. in connection with this provision of law. in connection with the other. since the lower stories also have techos. which can not be said to have joists. which has no joists. without special finding as to costs in this instance. 487). 10. determine the place. No good reason exists for having one story in better condition than another. it is precisely the top story that does not need joists since it does not have to support any other higher portion of the building. vol. without any exception.

BIO HONG TRADING CO.. OWNERSHIP AND ITS MODIFICATIONS. — Summary judgments are meant to rid a proceeding of the ritual of a trial where. is one constituted not in favor of a particular tenement (a real servitude) but rather. NATURE. — "Law of the case" has been defined as the opinion delivered on a former appeal.ID. Merger then. Alfredo G. LAW OF THE CASE. 2... or mortgaged separately. the facts have been established. — A personal servitude.ID. ID.. respondents. — An easement operates as a limitation on the title of the owner of the servient estate. CONSTRUED. ID. and trial would be futile.[G. A LIMITATION ON THE RIGHT OF THE OWNER TO USE. 6.. 5. whether correct on general principles or not. EASEMENTS OR SERVITUDES. ID.REMEDIAL LAW. WHEN PROPER.ID. 7.. ID.. as a result of an adverse opinion in one forum. MERGER.] SOLID MANILA CORPORATION. CONSTRUED. de Guzman for private respondent. 90596. and the facts appear undisputed based on the pleadings. ACTIONS. however. specifically. there is therefore no "owner of a dominant tenement" to speak of. depositions. vs. Balgos & Perez for petitioner. — A merger exists when ownership of the dominant and servient estates is consolidated in the same person. MODES OF EXTINGUISHMENT..J. (21 C. for the benefit of the general public. April 8. as mere accessories. 1991. PURPOSE. INC... they can not. be alienated from the tenement. a party seeks a favorable opinion (other than by appeal or certiorari) in another.. CONSTRUED.. ID. Although they are possessed of a separate juridical existence. ID.. the public at large. and the easement pertains to persons without a dominant estate. 3.. admissions. The principle applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending. from existing records. 4. SUMMARY JUDGMENT. 330) 8. ID. in this case.ID. ID. FORUM SHOPPING..CIVIL LAW.R. it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case.ID. — Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issue as to the existence of a material fact.. so long as the facts on which such decision was predicated continue to be the facts of the case before the court. his right to use ( jus utendi). DEFINED.ID. — There is forum-shopping whenever. DECISION . as can be seen. and affidavits of record. and COURT OF APPEALS. — Servitudes are merely accessories to the tenements of which they form part. petitioner. requires full ownership of both estates. PERSONAL SERVITUDE.. In a personal servitude. PROPERTY. SYLLABUS 1. ID. No.S. More specifically. ID.

It appears that the petitioner is the owner of a parcel of land located in Ermita. 2 As a consequence. the parties thereto reserved as an easement of way: . (5) That the maintenance and upkeep of the alley shall be at the expense of the registered owner. it had (as well as other residents of neighboring estates) made use of the above private alley and maintained and contributed to its upkeep. 128784. with an area of ONE HUNDRED SEVENTY NINE (179) SQUARE METERS. and (8) That he shall impose upon the vendee or new owner of the property the conditions abovementioned. until . The private respondent's title came from a prior owner. (2) That the alley shall not be closed so long as there's a building exists thereon (sic). 84 of Nicasio P. other conditions set forth in Doc. and allow the City to lay pipes for sewer and drainage purposes. The same lies in the vicinity of another parcel. this being duly annotated at the back of the covering Transfer Certificate of Title per regulations of the Office of the City Engineer of Manila and that the three meterwide portion of said parcel along the Pasig River. 7712/T-5000 — CONSTRUCTION OF PRIVATE ALLEY — It is hereby made of record that a construction of private alley has been undertaken on the lot covered by this title from Concepcion Street to the interior of the aforesaid property with the plan and specification duly approved by the City Engineer subject to the following conditions to wit: (1) That the private alley shall be at least three (3) meters in width. and no obstructions whatsoever shall be placed thereon. The petitioner raises two questions: (1) whether or not the Court of Appeals 1 erred in reversing the trial court which had rendered summary judgment. and developed pursuant to the beautification drive of the Metro Manila Governor. Manila. Not. (4) That the owner of the lot on which this private alley has been constituted shall construct the said alley and provide same with concrete canals as per specification of the City Engineer. had been converted into a private alley for the benefit of neighboring estates. Record). . No. (p. (7) That the owner of the lot on which the alley has been constructed shall allow the public to use the same. (6) That the alley shall remain open at all times. and shall not act (sic) for any indemnity for the use thereof. (3) That the alley shall be open to the sky. 3 The petitioner claims that ever since. 157750 of the Register of Deeds of Manila. a portion thereof measuring NINE HUNDRED FOURTEEN SQUARE METERS. of Manila. Pub.SARMIENTO. 4236. an annotation was entered in the private respondent's title. Page No. more or less. Book No. and (2) whether or not it erred in holding that an easement had been extinguished by merger. 11. registered in the name of the private respondent corporation under Transfer Certificate of Title No. and in their deed of sale. 3. . covered by Transfer Certificate of Title No. as follows: Entry No. J p: This is an appeal filed by way of a petition for review on certiorari under Rule 45 of the Rules of Court. Misa. We rule for the petitioner on both counts. more or less. had actually been expropriated by the City Government.

(2) the petitioner has another adequate outlet. on the grounds that: (1) the easement referred to has been extinguished by merger in the same person of the dominant and servient estates upon the purchase of the property from its former owner. as earlier mentioned. the petitioner commenced suit for injunction against the private respondent. the respondent corporation answered and reiterated its above defenses. to have the gates removed and to allow full access to the easement. because the very deed of sale . 5 On January 19. and for the defendant to pay the plaintiff the costs of this suit. judgment is hereby rendered making permanent the temporary mandatory injunction. this Court finds it unnecessary to try this case on the merit (sic) and hereby resolve (sic) to grant the plaintiff's motion for summary judgment.00 bond by the plaintiff" 4 (the petitioner herein). 1986.sometime in 1983. the trial court issued a "temporary writ of preliminary injunction to continue up to the final termination of the case upon its merits upon the posting of a P5. 1987.R. and (4) the petitioner has not shown that the right-of-way lies at the point least prejudicial to the servient estate. Subsequently. the dispositive portion of which states: WHEREFORE. On December 6. p. and over its protests. In reversing the trial court which had. 13421 of the respondent Court of Appeals which ordered the restoration of the annotation "without prejudice [to] the final outcome of" 7 the private respondent's own appeal (subject of this petition). The petitioner submits that the respondent Court of Appeals erred. and that since the private respondent had acquired title to the property. that had been issued against the defendant. rendered summary judgment. 6). SP No. According to the Appellate Court. On April 15. 6 The private respondent appealed to the respondent Court of Appeals. (3) the petitioner has not paid any indemnity therefor. Thereafter.000. Meanwhile. prLL The court a quo shortly issued ex parte an order directing the private respondent to open the gates. 1984. "merger" brought about an extinguishment of the easement. the petitioner moved for summary judgment and the court a quo ruled on the same as follows: In view of the foregoing. (pp. the trial court rendered judgment against the private respondent. The defendant's counterclaim against the plaintiff is hereby dismissed. 15-107. Record). (Summary Judgment. an easement is a mere limitation on ownership and that it does not impair the private respondent's title. the latter moved to have the order lifted. the private respondent constructed steel gates that precluded unhampered use. the respondent Court of Appeals held that the summary judgment was improper and that the lower court erroneously ignored the defense set up by the private respondent that the easement in question had been extinguished. The private respondent's opposition notwithstanding. for lack of merit. the private respondent itself went to the Regional Trial Court on a petition for the cancellation of the annotation in question. when. The court granted cancellation. for which the petitioner instituted CA-G.

The question is whether or not an easement exists on the property. it operates as a limitation on the title of the owner of the servient estate. the Court rejects the petitioner's contention that the deed of sale "excluded" it. " 8 Its act. The petitioner is not claiming the easement or any part of the property as its own. however. It is hardly the point. As the petitioner indeed hastens to point out. as mere accessories.executed between the private respondent and the previous owner of the property "excluded" the alley in question. the Court finds merit in the petition. however. 9 Servitudes are merely accessories to the tenements of which they form part. the parties hereto agreed to adjust the purchase price from THREE MILLION SEVEN HUNDRED . in conveying the property. and allow the City to lay pipes for sewer and drainage purposes. . but rather. The petitioner is moreover agreed that the private respondent has ownership. it is seeking to have the private respondent respect the easement already existing thereon. the respondent Appellate Court committed an error of judgment and law. of course. of erecting steel gates across the alley was in defiance of these conditions and a violation of the deed of sale. we are convinced that an easement exists. the deed itself stipulated that "a portion thereof [of the tenement] measuring NINE HUNDRED FOURTEEN SQUARE METERS. 617. be alienated 12 The fact. . and no obstructions whatsoever shall be placed thereon. and as we indicated. the intent of the parties was to retain the "alley" as an easement notwithstanding the sale." 13 and precisely. The Court then is of the opinion that injunction was and is proper and in denying injunctive relief on appeal. it has failed to observe the limitation or encumbrance imposed on the same. but that nonetheless. as described in the deed of sale executed between the private respondent and the seller. that the private respondent is the owner of the portion on which the right-of-way had been established and that an easement can not impair ownership. the same charged the private respondent as follows: "(6) That the alley shall remain open at all times. had been converted into a private alley for the benefit of the neighboring estates . they can not. and. and shall not [ask] for any indemnity for the use thereof . There is therefore no question as to ownership. the servitude of way. There is no question that an easement. . as the Court of Appeals held. and has been in fact annotated at the back of Transfer Certificate of Title No. had been constituted on the private respondent's property. the former owner. more or less. because as a mere right-of-way. 10 Although they are possessed of a separate juridical existence. thus: WHEREAS. is inseparable from the main lot is no argument to defeat the petitioner's claims. 128784. On this score. therefore. because as an easement precisely. to compensate for the foregoing. as an easement. (7) That the owner of the lot on which the alley has been constructed shall allow the public to use the same. LLpr As already stated at the outset.Easements are inseparable from the estate to which they actively or passively belong. and that in any event. Thus: Art. . Specifically. specifically. It is true that the sale did include the alley. his right to use ( jus utendi). gave the private owner a discount on account of the easement. that the alley in question. it can not be separated from the tenement and maintain an independent existence.

790. 21 We likewise allowed summary judgment and rejected contentions of economic hardship as an excuse for avoiding payment under a contract for the reason that the contract imposed liability under any and all conditions. the alley is supposed to be open to the public.NINETY THOUSAND FOUR HUNDRED FORTY PESOS (P3. prLL For this reason. a sham one. The servitude in question is a personal servitude.240. contrary to that of the Court of Appeals. that is to say. and the facts appear undisputed based on the pleadings. this Court upheld a decision of the trial court rendered by summary judgment on a claim for money to which the defendant interposed the defense of payment but which failed to produce receipts. 16 In a personal servitude. however. 20 We also denied reconveyance in one case and approved a summary judgment rendered thereon. Unless the owner conveys the property in favor of the public — if that is possible — no genuine merger can take place that would terminate a personal easement.503. as we said. 17 in this case. 22 In the case at bar. and the termination of that relation leaves the easement of no use. and so we reiterate. sham. because as a servitude. According to the Civil Code. depositions.440. we rejected the claim of acquisitive prescription over registered property and found it likewise to be sham. The Court is furthermore of the opinion. and sustained consequently. the defense of merger is. Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issue as to the existence of a material fact. requires full ownership of both estates. indeed. for the benefit of the general public. One thing ought to be noted here. there is therefore no "owner of a dominant tenement" to speak of. and which justified a summary judgment. 614. a merger exists when ownership of the dominant and servient estates is consolidated in the same person. on the ground that from the records.) to THREE MILLION FIVE HUNDRED THREE THOUSAND TWO HUNDRED FORTY PESOS (P3. the trial court was not in error in rendering summary judgment.00) 14 Hence. In another case. a summary judgment rendered because the title challenged was covered by a Torrens Certificate and under the law. 15 Merger then. Personal servitudes are referred to in the following article of the Civil Code: Art. clearly. 18 In one case. one constituted not in favor of a particular tenement (a real servitude) but rather.Servitudes may also be established for the benefit of a community. . and insofar as the respondent Court of Appeals held that it (the trial court) was in error. that no genuine merger took place as a consequence of the sale in favor of the private respondent corporation. Merger. albeit the private respondent did acquire ownership over the property—including the disputed alley — as a result of the conveyance. and the easement pertains to persons without a dominant estate. the Court of Appeals is in error. and affidavits of record. it did not acquire the right to close that alley or otherwise put up obstructions thereon and thus prevent the public from using it. Torrens titles are imprescriptible. the defense was not genuine but rather. the plaintiffs were clearly guilty of laches having failed to act until after twenty-seven years. presupposes the existence of a prior servient-dominant owner relationship. not a valid defense. admissions. 19 We held that under the circumstances. the public at large. or of one or more persons to whom the encumbered estate does not belong. as can be seen.

it will refuse to examine question other than those arising subsequently to such determination and remand. argues against the posturing of the private respondent — and consequently. Ysrael. the court has remanded the cause for further action below. 83540. the remedy of the party deeming himself aggrieved being to seek a rehearing. the law of the case between the parties. the answer does not. as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion. (21 C. it was brought to determine the rights of the parties regarding the easement.: xxx xxx xxx "Law of the case" has been defined as the opinion delivered on a former appeal. As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether that decision is right or wrong. summary judgments are meant to rid a proceeding of the ritual of a trial where. the sale unequivocally preserved the existing easement.S. or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein. where.g. and trial would be futile. (5 C.R. As the petitioner now in fact insists. from existing records. 330)." (5 C. where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal. Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal. so long as the facts on which such decision was predicated continue to be the facts of the case before the court. No. entitled Solid Manila Corporation v.J.J. although as a . points. What indeed. In other words. 1988. As this Court has held. or other than the propriety of the compliance with its mandate. 24 CA-G. No. in reality. is at least. It may be stated as a rule of general application that. tender any genuine issue on a material fact and can not militate against the petitioner's clear cause of action. as "law of the case" is known in law. 1286-87). although the questions are not expressly treated in the opinion of the court. and secondly.S. its action will not be questioned on a second appeal. in its CA-G. the challenged holding of the respondent Court of Appeals as well — is the fact that the Court of Appeals itself had rendered judgment. in which it nullified the cancellation of the easement annotated at the back of the private respondent's certificate of title ordered by Judge Ysrael in LRC Case No. 23 the facts have been established. In accordance with the general rule stated in Section 1821. 13421.S.R. 1267). and if the court below has proceeded in substantial conformity to the directions of the appellate court. subject of the controversy in this case. after a definite determination. questions. all matters. the Court of Appeals' judgment. No. it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case. 13421 is the law of the case because clearly.R. in G. More specifically. merger is not possible. which was affirmed by this Court in its Resolution dated December 14.J.S.because as we said. 1276-77). (5 C. e.J. 273. whether correct on general principles or not.

declared that a personal servitude (also a right of way in that case) is established by the mere "act" 28 of the landowner. the proceedings for cancellation of annotation was in fact meant to preempt the injunction decreed by the lower court in this case. where the court in which the second suit was brought. Plainly and simply.. Rather. In his separate opinion. suggested a different cause of action. 273 that precipitated that appeal." 30 and "[t]here being no offer. Hidalgo. the private respondent is guilty of forumshopping. in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. it is not disputed that an easement has been constituted. the petition is GRANTED. The principle applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending. the right-of-way in question was established by the will of the owner. hence no contract. Inc. In the interesting case of North Negros Sugar Co. there could be no acceptance. and coming back to the case at bar. and also administratively dealt with in the case of counsel. speaking through Justice Claro Recto. Justice Jose Laurel maintained that a personal or voluntary servitude does require a contract and that "[t]he act of the plaintiff in opening the private way here involved did not constitute an offer . as we have described the term: xxx xxx xxx There is forum-shopping whenever. 26 As it happened." 29 and a third party (as the petitioner herein is a third party) has the personality to claim its benefits. the private respondent found an unfriendly court and it can not be made to profit from its act of malpractice by permitting it to downgrade its finality and deny its applicability as the law of the case. 13421 as the law of the case. As a personal servitude. No. The decision of the Court of Appeals is SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. the private respondent can not validly reject CA-G. 25 to which contempt is a penalty. WHEREFORE. whereas it was disputed in North Negros' case. 27 this Court. at a glance. from its use. And for reasons of fair play. the private respondent can not bar the public. . after all. it was the one that initiated the cancellation proceedings with the Regional Trial Court in LRC No. however. have shaped history itself. As we held. as in this case. as a result of an adverse opinion in one forum. as in this case. and is not "contractual in the nature.. v. The petitioner and its counsel are hereby required to SHOW CAUSE why they should not be punished for contempt of court.R. in its effort to shop for a friendly forum." 31 The Court sees no need to relive the animated exchanges between two legal titans (they would contend even more spiritedly in the "larger" world of politics) to whom present scholars perhaps owe their erudition and who. for forum shopping. a party seeks a favorable opinion (other than by appeal or certiorari) in another. This is specially so. the question is whether it is still existing or whether it has been extinguished. because of the paths they have taken. In the second place. has no jurisdiction. our findings is that it is in existence and as a consequence. after all.petition for "cancellation of annotation" it may have. by erecting an obstruction on the alley.

.IT IS SO ORDERED.

R. Both Orlando and Wenifreda Llenado testified that the conditions of the easement of right of way were still to be drawn up by Floro's lawyer. (2) when there is a grave abuse of discretion. (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. and. PETITION TO REVIEW ON CERTIORARI. (3) when the finding is grounded entirely on speculations. (10) when the finding of fact of the Court of Appeals are premised in the absence of evidence and are contradicted by the evidence on record. 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. Floro granted the Llenados verbal permission to pass through the Floro Park Subdivision in going to and from the MacArthur Highway. There are. exceptional circumstances that would compel the Court to review the findings of fact of the Court of Appeals. and none was paid. Whether such permission. Tibe (G. however. No. ORLANDO A. or was in relation to the easement of right of way granted in their favor. and the COURT OF APPEALS. SYLLABUS 1. 2. 1988.CIVIL LAW. CIVIL PROCEDURE.[G. all surnamed Llenado. No. if properly considered.REMEDIAL LAW. would justify a different conclusion. the jurisdiction of the Court is ordinarily confined to reviewing errors of law committed by the Court of Appeals. (8) when the findings of fact are conclusions without citation of specific evidence on which they are based. ORDINARILY CONFINED TO REVIEWING ERRORS OF LAW COMMITTED. June 2. EASEMENT OF RIGHT OF WAY. 1995. (7) when the findings of the Court of Appeals are contrary to those of the trial court. Bexina. This is evident from the testimony of Wenifreda that "they said to us to go on while they are preparing for the . (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which. February 25. vs. summarized in Remalante v. 145) and subsequent cases as follows: (1) when the inference made is manifestly mistaken. However.R. LLENADO. substituted by his wife WENIFREDA T. without compensation and as a neighborly gesture for the purpose merely of enabling the Llenados to install stone monuments (mojones) on their land. petitioner. 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. respondents. as claimed by Floro. its findings of fact being conclusive on the Court. (4) when the judgment of the Court of Appeals is based on misapprehension of facts. EXCEPTIONS. Avelino and Antonio. no compensation was agreed upon. in her own behalf as Administratrix of the Estate of Orlando A. Llenado and as Legal Guardian of Minors Ma. 59514. (5) when the findings of fact are conflicting. PROPERTY. — In a petition to review a decision of the Court of Appeals under Rule 45 of the Rules of Court. surmises or conjectures. the fact remains that no such contract of easement of right of way was actually perfected between Floro and Llenado. LLENADO (Deceased). 158 SCRA 138. Thus. absurd or impossible. 75723. for the passage through Floro's property during the month of March. ABSENCE OF AGREEMENT AS TO THE CONSIDERATION DOES NOT CREATE A VALID CONTRACT THEREOF. when Wenifreda saw Floro in the evening of April 7. Orlando rejected said conditions for being onerous. — It is not disputed that sometime in February 1983. was the month of March only.] SIMEON FLORO. as insisted by the Llenados.

ID.ID. and.. PRECONDITIONS TO BE ESTABLISHED. 5. However. 1). 3.. and insofar as consistent with this rule. private respondents Llenados cannot claim entitlement to a right of way through the Floro Park Subdivision on the basis of a voluntary easement. — In Talisay-Silay Milling Co. There were no proofs of actual work having been done to construct a road. NO ADEQUATE OUTLET TO A PUBLIC HIGHWAY AS A CONDITION. par. 649. 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. the first requirement for a grant of a compulsory easement of right of way over the Floro Park Subdivision has not been met.. the preconditions provided under Articles 649 and 650 thereof must be established. where the distance from the dominant estate to a public highway may be the shortest (Art. was merely for the sake of securing an approval of the proposed development plan. ID. Prepayment. 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. other than the closed road of the Floro Park Subdivision. . as his means of ingress and egress to and from his property. ID. Precisely.. 1).). ID. as follows: ".ID.. ID..ID. 6. ID. DEFINED. par. Private respondents Llenado admitted that the Ipapo riceland was no longer being cultivated and there was already a fence made of adobe wall constructed on it. 649. ID..papers" and that "We can use that for a while.. Hence. NOT MET IN CASE AT BAR. he focused his argument on the absence of any road.ID. — Significantly. 649. ID. Court of First Instance of Negros Occidental. (4) that the right of way claimed is at the point least prejudicial to the servient estate. as we used the term means the delivery of the proper indemnity required by law for the damage that might be incurred by the servient estate in the event the legal easement upon the extent of compensation cannot be reached by the parties involved. while they were making for the papers.... ID. ID. Indication are that it has already been abandoned as a ricefield. PRE-PAYMENT OF REQUIRED INDEMNITY.. no proof was presented by private respondent Llenado that he complied with this requirement. ID. v. There was no reason for private respondent's failure to develop the right of way except the inconvenience and expenses it would cost him. ID... — To be entitled to a compulsory servitude of right of way under the Civil Code. even just a dirty road. 4. 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. ID.. the third ." Although such use was in anticipation of a voluntary easement of right of way. he omitted to state that there is a proposed access road through the Ipapo property. ID. — There can be no denying that the isolation of the Llenado Homes Subdivision is the doing of its owner/developer/applicant. ISOLATION WAS NOT DUE TO ACTS OF THE PROPRIETOR OF THE DOMINANT ESTATE. . no such contract was validly entered into by reason of the failure of the parties to agree on its terms and conditions. when Orlando Llenado filed the complaint for legal easement under Articles 649 and 650 of the Civil Code. There being an existing right of way over the Ipapo property. 650). (2) after payment of proper indemnity (Art. over the right of way that would connect road Lot 3 of the Llenado Homes Subdivision to the MacArthur Highway. These preconditions are: (1) that the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art." In the case at bench. is not an impediment to the establishment of such easement. COMPULSORY SERVITUDE OF RIGHT OF WAY. 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. Thus. Thus. last par. (3) that the isolation was not due to acts of the proprietor of the dominant estate (Art. the existence of the second requisite has likewise not been established.... NOT SATISFIED IN THE CASE AT BAR. (42 SCRA 584) the Court explained what is meant by payment or prepayment of the required indemnity under Article 649 of the Civil Code.

REAL. such approval. when a person had already established an easement of this nature in favor of his tenement. but not when the outlet is merely inconvenient.. if it can be satisfied without imposing the servitude. therefore. the same should not be imposed. 19 and Presidential Decree No. 7. C-1) of the Floro Park Subdivision in the absence of consent and/or approval of the owner of said Floro Park Subdivision. 8. has been designated/specified as an access road directly leading to the MacArthur Highway. 296. Letters of Instructions No. DECISION ROMERO. to be carried out by the Chief Civil Engineer. This easement can also be established for the benefit of a tenement with an inadequate outlet. Failing to establish the existence of the prerequisites under Articles 649 and 650 of the Civil Code. IMPOSITION THEREOF. ID. thus: ". The disapproval. . NOT A FICTITIOUS OR ARTIFICIAL NECESSITY REQUIRED TO JUSTIFY THE IMPOSITION THEREOF. there must be a real." It is also worthwhile to observe that on November 29. While it is true that the conversion of said salable (sic) Lot 14.. — Worthy of mention is the trial court's reason for the denial of the easement of right of way.. ID. There appears a semblance of deception if the provision for (the) proposed access road in the approved subdivision plan of Emmanuel Homes Subdivision. if those defects can be eliminated by proper repairs. NOT PROPER IN CASE AT BAR. without compensation. .. . and. does not ipso facto connect Road Lot 5 and 4 (Exh. — In order to justify the imposition of the servitude of right of way. ID. Block 6 into a Road Lot has been approved by the Human Settlement Regulatory Commission. now Llenado Homes Subdivision. ID.. Even in the face of a necessity. ID. not a fictitious or artificial necessity for it. Bulacan Engineering District. 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. . ID. maintains Road Lot 3 as an access road of Llenado Homes Subdivision to the main highway.ID.ID. of the closure and consequent conversion of both ends of Road Lot 3 into residential lots.. however. subject of the proposed amendment. Mere convenience for the dominant estate is not what is required by law as the basis for setting up a compulsory easement. 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. 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. 1067 and ordered private respondent herein to remove or demolish the same.requisite has not been met. It is the shortest route and the road alignment is direct and in a straight line perpendicular to the MacArthur Highway. (2) whether or not an owner/developer of a subdivision can demand a compulsory easement of right of way over .. he cannot demand another.. 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 should be emphasized that the end of Road Lot 3 of Llenado Homes Subdivision facing MacArthur Highway as per approved subdivision plan. . at the expense of private respondent. J p: The instant petition for review on certiorari presents two (2) issues for resolution. even if the first passage has defects which make passage impossible. in effect. Thus.

more or less." Floro moved for reconsideration but was denied the relief sought. wooden posts and adobe stones. Orlando A. and were granted. the trial court. Montaos and Guevarra." for brevity). On April 7. Bulacan. 4 Bounded on the South by the 5 to 6 meter-wide Palanas Creek. presided over by Hon. the Llenados sought. 1983.00). Simeon Floro is the owner of a piece of land known as the Floro Park Subdivision situated in Barangay Saluysoy. Floro was ordered: "1. Their request for the reopening of Road Lot 5 having been denied. 1984 which declared the case . a complaint before the Regional Trial Court (RTC) of Malolos. in an Order dated July 15.000. His motion for withdrawal was granted by the appellate court in its Resolution dated March 30. with the total area of 34. The complaint was docketed as the Civil Case No. 2 on the other hand. however. 573 sq.the existing roads of an adjacent subdivision instead of developing his subdivision's purposed access road as provided in his duly approved subdivision plan. 8 He then filed with the Court of Appeals a petition for certiorari and prohibition with petition for a writ of preliminary injunction and restraining order. However. Orlando Llenado instituted on April 13. and on the west by ricelands belonging to Marcial Ipapo. Meycauayan.7 granted the prayer for the issuance of a writ of preliminary mandatory injunction upon the filing of a bond by Llenado in the amount of one hundred thousand pesos (P100. thereby preventing its use by the Llenados. Llenado. Floro barricaded Road Lot 5 with a pile of rocks. a proposed access road traversing the idle riceland of Marcial Ipapo has been specifically provided in the subdivision plan of Emmanuel Homes Subdivision which was duly approved by the defunct Human Settlement Regulatory Commission (now Housing and Land Use Regulatory Board). was the registered owner of two (2) parcels of land. 1983. 1 The subdivision has its own egress and ingress to and from the MacArthur Highway by means of its Road Lot 4 and the PNR level crossing. the land was known as the Emmanuel Homes Subdivision. 6834-M and raffled off to Branch XIX. a duly licensed and registered housing subdivision in the name of Soledad Ortega. permission by the Floros to use Road Lots 4 and 5 of the Floro Park Subdivision as the passageway to and from MacArthur Highway. Prior to its purchase by Llenado from the owner Francisco de Castro. the Llenado Homes does not have any existing road or passage to the MacArthur Highway. 1983. moved to withdraw his petition. 3 known as the Llenado Homes Subdivision ("Llenado Homes. 5 which separates it from the Floro Park Subdivision. 6 Sometime in February. but later on. meters.To open the road by removing the rocks and wooden posts and/or to remove the barricade on the subject road of the Floro Park Subdivision and enjoining him and any person or persons under him from doing or performing any acts which will prevent (LLENADO) or his agents or any person acting under (LLENADO's) instruction from passing through the subject subdivision road to get into and to get out of the aforementioned properties of (LLENADO) until further order from this Court. Judge Camilio Montesa. Bulacan. After hearing and ocular inspection. against Simeon Floro for Easement of Right of Way with the Prayer of the Issuance of a Writ of Preliminary Mandatory Injunction and Damages. 1983.

resumed.000. On the counterclaim posed by defendant.00 as a compensation for the use of defendant's property. (2)Ordering defendant to remove immediately all of the obstructions. SO ORDERED.closed and terminated. 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. the appellate court set aside the decision of the trial court in a decision 12 promulgated on February 11. 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. judgment is hereby rendered dismissing the instant complaint for lack of merit. P15. To pay the costs of the suit." On the appeal by Llenado. The dispositive portion of the decision 11 reads: "WHEREFORE. upon finality of this decision.00 — moral damages. . d. such as walls. On October 16. 10 Trial on the merits of the case which was suspended pending resolution of the petition before the Court of Appeals. and the writ of preliminary mandatory injunction issued in favor of the plaintiff is hereby ordered dissolved and/or lifted. and (c)P30.000. premises considered. the dispositive portion of which reads as follows: "WHEREFORE. 1984.P77. the following: (a) P60. (3)Ordering defendant to pay to plaintiff. Llenado as administratrix of his estate and as legal guardian of their four (4) minor children. the trial court rendered judgment dismissing the case and lifting the writ of preliminary mandatory injunction previously issued.000.500.00 as actual damages suffered by defendant.P30.000. Orlando Llenado died and was substituted by his wife Wenifreda T. b.00 — temperate or moderate damages (b)P100.000. 1986.00 — attorney's fees. 9 In the meantime.00 as attorney's fees and. c. the plaintiff is hereby ordered to pay defendant the following amounts: a.

SO ORDERED. (3) when the finding is grounded entirely on speculations. absurd or impossible. 1986. (2) when there is a grave abuse of discretion. 14 The latter resolution provided in its dispositive portion. (5) when the findings of fact are conflicting. the Court issued a restraining order on October 29.000. posts. (4) when the judgment of the Court of Appeals is based on misapprehension of facts. including all walls. the appellate court in separate resolutions denied Floro's motion for reconsideration and supplementary motion 13 and granted Llenado's motion for partial execution pending appeal. The liability of the defendant under No. (7) when the findings of the Court of Appeals are contrary to those of the trial court. the jurisdiction of the Court is ordinarily confined to reviewing errors of law committed by the court of Appeals. rocks. 15 enjoining the appellate court from carrying out its writ of partial execution pending appeal. thus: "WHEREFORE. (8) when the findings of fact are conclusions without citation of a specific evidence on which they are .000. the instant petition was given due course." On August 14. let a writ of partial execution pending appeal be issued ordering the defendantappellee to remove immediately all of the obstructions. Subsequently. (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. for the purpose of preventing plaintiff-appellant from using defendant's subdivision as passage way to the MacArthur Highway. its findings of fact being conclusive on the Court. however. (3) (supra) shall be legally compensated by the liability of the plaintiff under No. 1986 to require Llenado to comment thereon.(4)Ordering plaintiff to pay to defendant the amount of P60.00 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. exceptional circumstances that would compel the Court to review the findings of fact of the Court of Appeals. Said Order shall include Road Lot 4 so that plaintiff-appellant will have free access to MacArthur Highway. 1986 after the instant Petition had been filed and after the Court had resolved on September 15. 16 In a petition to review a decision of the Court of Appeals under Rule 45 of the Rules of Court. and other materials with which he has barricaded Road Lot 5. On motion of Floro." The writ of partial execution pending appeal was issued on October 2. upon the posting by plaintiff appellant of a bond in the amount of ONE HUNDRED THOUSAND PESOS (P100. 1986. Tibe 18 and subsequent cases 19 as follows: (1) when the inference made is manifestly mistaken.00) approved by this Court. (4) (supra) automatically to the extent that the amount of one is covered by the amount of the other. 17 There are. summarized in Remalante v. and (5)Ordering defendant to pay the costs. surmises or conjectures. SO ORDERED.

and none was paid. 22 the fact remains that no such contract of easement of right of way was actually perfected between Floro and Llenado. Absent an agreement of the parties as to the consideration. would justify a different conclusion. as claimed by Floro." As in the Dionisio case. 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. if properly considered. so that the latter did not have the right to put a barricade in front of private respondent's gate and to stop them from using said gate as a passageway to Howmart Road. the 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. Thus the private respondent's claim of an easement of right of way over Howmart Road has no legal or factual basis. 25 However. (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which. the Court may scrutinize the evidence on the record to bring to light the real facts of the case. 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. 1983 to negotiate for the reopening of Road Lot 5 and Floro laid down his conditions 26 for the requested reopening and presumably for the requested easement of right of way. Ortiz. Floro granted the Llenados verbal permission to pass through the Floro Park Subdivision in going to and from the MacArthur Highway. 20 It is not disputed that sometime in February 1983. without compensation and as a neighborly gesture for the purpose merely of enabling the Llenados to install stone monuments (mojones) on their land. . for the passage through Floro's property during the month of March. while they were making for the papers. (10) when the finding of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record. when Wenifreda saw Floro in the evening of April 7. Both Orlando 23 and Wenifreda Llenado 24 testified the conditions of the easement of right of way were still to be drawn up by Floro's lawyer. as insisted by the Llenados." 29 Although such use was in anticipation of a voluntary . no compensation was agreed upon. The findings and conclusions of the Court of Appeals. among others. 21 or was in relation to the easement of right of way granted in their favor.based. 27 In Dionisio v. 28 where therein private respondents claimed to have every right to use Howmart Road as passageway to EDSA by reason of a standing oral contract of easement of right of way with therein petitioner. . and. the instant case falls within the exception. Orlando rejected said conditions for being onerous. was the month of March only. being contrary to the findings and conclusions of the trial court. Thus. . Whether such permission. Thus. no contract of easement of right of way has been validly entered into by the petitioners and QCIEA.

. par. and insofar as consistent with this rule. the property owned by a certain Ventura Tan Mariano. Accordingly. 32 appearing on page 120 of the records of the HSRC. The application of Soledad Ortega for the Emmanuel Homes Subdivision. and. 39 When Orlando Llenado acquired the subject property. However. Subsequently. (3) that the isolation was not due to acts of the proprietor of the dominant estate (Art. 35 (4) Road Plan Layout. no such contract was validly entered into by reason of the failure of the parties to agree on its terms and conditions. as his means of ingress and egress to and from his property. Road Lot 3 of the Emmanuel Homes Subdivision starts and ends with adjacent properties. had the following attachments: (1) Sketch Plan of the property containing an area of 34. when Orlando Llenado filed the complaint for legal easement under Articles 649 and 650 of the Civil Code. 34 (3) Vicinity Plan. 1). on one end. where the distance from the dominant estate to a public highway may be the shortest (Art. (2) after payment of proper indemnity (Art. Having ruled that no voluntary easement of right of way had been established in favor of private respondents Llenados. private respondents Llenados cannot claim entitlement to a right of way through the Floro Park Subdivision on the basis of a voluntary easement. he omitted to state that there is a proposed access road through the Ipapo property. "10-A" and "10-C". As per Plans. the access road to the subdivision should have come from the MacArthur Highway through the Ipapo property. 1). For the Llenados to be entitled to a compulsory servitude of right of way under the Civil Code. he applied for the issuance of a new Development Permit and License to Sell in his name as the new owner of the subdivision. Thus. 649. (4) that the right of way claimed is at the point least prejudicial to the servient estate. an engineer employed as Project Officer of the Human Settlement Regulatory Commission (HSRC) since 1981. other than the closed road of the Floro Park Subdivision. 30 The burden of providing the existence of the prerequisites to validly claim a compulsory right of way lies on the owner of the dominant estate.easement of right of way.973 sq. Significantly. her application on behalf of the Emmanuel Homes Subdivision was approved. As shown by the Consolidation Subdivision Plan 40 submitted by Orlando . These preconditions are: (1) that the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art. 38 Having found on ocular inspection that the access road indicated in the Plan did not actually exist. par.). 36 and (5) Consolidation Subdivision Plan. as per Plan Exhs. 37 According to Ravello. 649. the property owned by Mariano Monadero and at the other. the preconditions provided under Articles 649 and 650 thereof must be established. 31 We find that private respondents have failed in this regard. the corresponding license to sell and development permit were issued. which she did and on the basis of which. 33 (2) Waterline Layout Plan. testified that his duties consisted in evaluating and processing subdivision plans and making the proper recommendation for their approval or disapproval. the HSRC required applicant Soledad Ortega to submit a written right of way clearance from Ipapo. last par. 649. Danilo Ravello. he focused his argument on the absence of any road. 650). m. we now determine whether or not they are entitled to a compulsory easement of right of way. he adopted the subdivision plans of Emmanuel Homes and renamed it as the Llenado Homes Subdivision.

43 The access road of Llenado Homes Subdivision. The first proposed alteration. the portion leading to the Ventura Tan Mariano property and the portion leading to the Ipapo right of way (Adriano Monadero property). "11-A". In Talisay-Silay Milling Co. the subdivision must have an access road. however. 44 as approved by the HSRC in compliance with Section 29 of Presidential Decree No. however. 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 . v. therefore. private respondents Llenado submitted a letter of Marcial Ipapo dated July 3. 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. as approved by the HSRC. 48 the Court explained what is meant by payment or prepayment of the required indemnity under Article 649 of the Civil Code. In said subdivision plan which was duly approved by the HSRC. 45 informing the latter that he did not give a road right of way over his property in favor of Soledad Ortega. 1983. 46 This new matter.Llenado. remained in the Subdivision Plan to be through the Ipapo property. the names Orlando Llenado/Llenado Homes Subdivision were written. Ravello that the notarized affidavit of Ipapo submitted by Soledad Ortega to the HSRC could not be located in the records of the Commission. Block 6 into a road lot was approved on March 20. erroneous on the part of the Court of Appeals to consider this piece of evidence in its Resolution For the Motion For Reconsideration dated August 124. 1986. 41 The proposed amendments. to be converted into saleable residential lots. during the pendency of Civil Case No. 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. It was. in lieu thereof. On July 1. (2) the closing of both ends of Road Lot 3. as indicated in Exh. 1984. It was not necessary that the access road be a paved road. Engr. 42 were: (1) the conversion of Lot 14 of Block 6 into a road lot. 1985 addressed to the HSRC. and. the names Soledad Ortega/Emmanuel Homes Subdivision were merely crossed out and. Rule 132 of the Rules of the Court. the Ipapo Access Road was retained. Orlando Llenado filed with the HSRC an application for the amendment of the original Consolidation Subdivision Plan of the Llenado Homes Subdivision. Prepayment. designed to connect with Road Lot 5 of the Floro Homes Subdivision. 47 There being an existing right of way over the Ipapo property. Ravello responded that as a prerequisite for approval. the first requirement for a grant of a compulsory easement of right of way over the Floro Park Subdivision has not been met. the conversion of Lot 14. is inadmissible in evidence. 6834-M." On appeal to the Court of Appeals. . 957 which states: "SEC. as follows: ". . not having been authenticated in accordance with Section 20. the developer of Emmanuel Homes Subdivision. Court of First Instance of Negros Occidental. 29Right 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. This letter seems to be an aftermath of the testimony of Engr.

The fact that a voluntary agreement upon the extent of compensation cannot be reached by the parties involved. not a fictitious or artificial necessity for it. Furthermore. the third requisite has not been met. other subdivision developers/owners would be encouraged to hastily prepare a subdivision plan with fictitious provisions for access roads merely for registration purposes. to justify the easement in favor of private respondent. even just a dirty road. The "convenience" of using Road Lots 4 and 5 of the Floro Park Subdivision will not suffice. Mere convenience for the dominant estate is not what is required by law as the basis for setting up a compulsory easement. 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. Hence. 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. was merely for the sake of securing an approval of the proposed development plan." In the case at bench. 49 Indication are that it has already been abandoned as a ricefield. There were no proofs of actual work having been done to construct a road. Thus. the existence of the second requisite has likewise not been established. Thereafter. instead of developing the proposed access road. If the servitude requested by private respondent Llenado is allowed. if it can be satisfied .is constituted. citing as reason therefor. In order to justify the imposition of the servitude of right of way. 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. said developers could abandon their duly approved plans and. if such practice were tolerated. Even in the face of a necessity. Precisely. the very purpose for which Presidential Decree No. 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. that the amendment sought would create a "more adequate and practical passage" from Llenado Homes Subdivision to the MacArthur National Highway and vise-versa. 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. however. 957 was enacted. would be defeated. over the right of way that would connect road Lot 3 of the Llenado Homes Subdivision to the MacArthur Highway. there must be a real. The Court takes cognizance of the fact that. There can be no denying that the isolation of the Llenado Homes Subdivision is the doing of its owner/developer/applicant. no proof was presented by private respondent Llenado that he complied with this requirement. There was no reason for private respondent's failure to develop the right of way except the inconvenience and expenses it would cost him. is not an impediment to the establishment of such easement. for whatever reason. open up another way through another property under the pretext that they have inadequate outlets to a public road or 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.

has been designated/specified as an access road directly leading to the MacArthur Highway.without imposing the servitude. 52 the Court denied access to Sucat Road through Gatchalian Avenue in view of the fact that petitioner had a road right of way provided by the Sobrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in its subdivision plan for the buyers of its lots. There appears a semblance of deception if the provision for (the) proposed access road in the approved subdivision plan of Emmanuel Homes Subdivision. he cannot demand another. construction work at Llenado Homes Subdivision continued. Intermediate Appellate Court 53 and Constabella Corporation v. The disapproval. despite the closure of the subject road. . had "to pass through other lots belonging to other owners. However. as found by the trial court. such approval. . It should be emphasized that the end of Road Lot 3 of Llenado Homes Subdivision facing MacArthur Highway as per approved subdivision plan. 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. would not be implemented as it would appear that the same was indicated in the plans merely for purposes of approval of . Worthy of mention is the trial court's reason 55 for the denial of the easement of right of way. even if those first passage has defects which make passage impossible. Thus. the same should not be imposed. Gatchalian. . however. This ruling was reiterated in Rivera v. private respondent has no one to blame but himself for not developing the proposed access road through the Ipapo property. . not to mention that said passage. 54 As borne out by the records of this case. now Llenado Homes Subdivision. of the closure and consequent conversion of both ends of Road Lot 3 into residential lots. Court of Appeals. but nit when the outlet is merely inconvenient. . 50 This easement can also be established for the benefit of a tenement with an inadequate outlet. Even if Ramos. which are grassy and cogonal. It is the shortest route and the road alignment is direct and in a straight line perpendicular to the MacArthur Highway. if those defects can be eliminated by proper repairs. maintains Road Lot 3 as an access road of Llenado Homes Subdivision to the main highway. While it is true that the conversion of said salable (sic) Lot 14. as temporary ingress/egress with great inconvenience particularly due to flood and mud. in effect. therefore. The alternative route taken by private respondent is admittedly inconvenient because he has to transverse several ricelands and rice paddies belonging to different persons. subject of the proposed amendment." 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. is impassable during the rainy season. the petitioner therein. when a person has already established an easement of this nature in favor of his tenement. 51 In the case of Ramos v. thus: ". Block 6 into a Road Lot has been approved by the Human Settlement Regulatory Commission. notwithstanding that said lot was still undeveloped and inconvenient to petitioner.

as herein modified. 1983. 1067 and ordered private respondent herein to remove or demolish the same.the subdivision but not actually to develop and avail of the same was originally intended. Bulacan Engineering District. 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. SO ORDERED. to be carried out by the Chief Civil Engineer. Letters of Instructions No. Costs against private respondent. Cdpr WHEREFORE. .00) as actual and compensatory damages should be affirmed. the appealed decision of the Court of Appeals is SET ASIDE and the decision of the trial court. 1983 (upon the reopening of the subject road pursuant to the issuance of a writ of preliminary mandatory injunction) until October 16. 56 Failing to establish the existence of the prerequisites under Articles 649 and 650 of the Civil Code. private respondent was allowed to pass thru petitioner's subdivision without any agreement or compensation. at the expense of private respondent." It is also worthwhile to observe that on November 29. is REINSTATED. Justice and equity demand that petitioner be compensated for the said damage.00) as temperate or moderate damages pursuant to Articles 2224 and 2225 of the Civil Code 57 is considered proper and reasonable. During the same period. 58 As regards the claim for attorney's fees. It appears from the records that during the period from March 1983 until the closure of the subject roads on April 7. considering that the petitioner was compelled to file a petition for review on certiorari before this Court.00) is just reasonable.000. the lower court's decision awarding to petitioner Thirty Thousand Pesos (P30. the amount of Thirty Thousand Pesos (P30. 296. the subject roads (Road Lots 4 and 5) were damaged due to trucks and heavy equipment passing thereon. Petitioner should likewise be indemnified for the use of his property from July 15.000. In the absence of a specific provision applicable in the case at bench as to the amount of proper indemnity. 19 and Presidential Decree No. Hence.000. the award of Sixty Thousand Pesos (P60. 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. 1986 (when the writ was lifted).

May 29. that the vacant space ended at the left back of Sotero's store which was made of strong materials. Absent any showing that these findings and conclusion are devoid of factual support in the records. EASEMENT. 2. UPHELD ON APPEAL. and the probabilities of the situation. It is jus in re aliena. inseparable. FINDINGS OF FACT OF THE COURT OF APPEALS REVERSING THE DECISION OF THE TRIAL COURT. San Antonio for private respondent. 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. an easement is a real right on another's property. 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. which is one (1) meter wide and five (5) meters long at the extreme right of petitioner's property. Benedicto L. indivisible and perpetual. or are so glaringly erroneous. The voluntary easement in favor of private respondent. whereby the owner of the latter must refrain from doing or allowing somebody else to do or something to be done on his property. No. unless extinguished by causes provided by law.CIVIL LAW. respondents. their relation to each other.] ANASTACIA QUIMEN. In fact.R. and another right of way which although longer will only require an avocado tree to be cut down. In applying Art. although erroneously. for the benefit of another person or tenement. But notwithstanding its factual observations. EVIDENCE. 1996. 112331. As between a right of way that would demolish a store of strong materials to provide egress to a public highway. The owner of the dominant estate . — 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 sum. this Court accepts and adopts them. corporeal and immovable. DEFINED. existence and relevancy of specific surrounding circumstances.REMEDIAL LAW. COURT OF APPEALS and YOLANDA Q. Armando A. 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. 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. — As defined. 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 over another's property when his tenement is surrounded by realties belonging to others without an adequate outlet to the public highway.[G. 650 of the New Civil Code. respondent Court of Appeals declared that the proposed right of way of Yolanda. OWNERSHIP AND ITS MODIFICATIONS. Nanca for petitioner. has in fact become a legal easement or an easement by necessity constituted by law. SYLLABUS 1. vs. the second alternative should be preferred. OLIVEROS. the trial court concluded. PROPERTY. 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. which petitioner now denies but which the court is inclined to believe. 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. After all. petitioner. this Court finds that the decision of respondent appellate court is thoroughly backed up by law and the evidence.

ID. 1 This is so because least prejudice prevails over shortest distance. if the two circumstances do not concur in a single tenement. (c) the isolation was not due to the acts of the dominant estate. It is bounded on the right by the property of Sotero designated as Lot No. while on the other hand. ID. the longest distance may be free of obstructions and the easiest or most convenient to pass through. where the easement may be established on any of several tenements surrounding the dominant estate. 1448-B-1. 1448-B-3 and 1448-B-4 originally owned by Rufina and Sulpicio. — The conditions sine qua 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. (d) the right of way being claimed is at a point least prejudicial to the servient estate.ID. insofar as consistent with this rule. 1448B-C which the latter divided into two (2) equal parts. 1448-B-6-A and 1448-B-6-B. 3. 4.. However. the way which will cause the least damage should be used. ID. Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together with her brothers Sotero. Located directly behind the lots of Anastacia and Sotero is the share of their brother Antonio designated as Lot No. as they did. Bulacan. DECISION BELLOSILLO. Lot No. However.. CRITERION OF LEAST PREJUDICE TO THE SERVIENT ESTATE. . 1448-B-6-A is located behind Anastacia's Lot No. was designated as Lot No. as elsewhere stated.. The share of Anastacia.ID.. — Petitioner finally insists that respondent court erroneously concluded that the right of way proposed by private respondent is the least onerous to the parties. 1448-B-2. a longer way may be adopted to avoid injury to the servient estate. CONSTRUED. if these two (2) circumstances do not concur in a single tenement. EASEMENTS. the way where damage will be least shall be used even if not the shortest route. each with an area of 92 square meters. Sotero. the one where the way is shortest and will cause the least damage should be chosen. with the shares of Anastacia. RIGHT OF WAY. CONDITIONS FOR GRANT THEREOF. respectively.can demand a right of way through the servient estate provided he indemnifies the owner thereof for the beneficial use of his property. but which were later acquired by a certain Catalina Santos. This means that the court is not bound to establish what is the shortest distance. J p: IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will cause least prejudice shall be chosen. They agreed to subdivide the property equally among themselves. even if it will not be the shortest. In other words. Sulpicio. and. 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. Sulpicio and Rufina abutting the municipal road. 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. it is not always so as when there are permanent structures obstructing the shortest distance. such as when the shortest distance would place the way on a dangerous decline. ID. located at the extreme left. Adjoining Sotero's property on the right are Lots Nos. While shortest distance may ordinarily imply least prejudice. now Lots Nos.. Antonio and sister Rufina inherited a piece of property situated in Pandi. or to secure the interest of the dominant owner. where the distance from the dominant estate to a public highway may be the shortest.. (b) the dominant estate is willing to pay the proper indemnity. We cannot agree. such as when there are constructions or walls which can be avoided by a round about way.

1448-B-6-A from her uncle Antonio through her aunt Anastacia who was then acting as his administratrix. 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. and Anastacia's perimeter fence. 5 On appeal by respondent Yolanda. Thereafter. Petitioner now comes to us imputing ERROR to respondent Court of Appeals: (a) in disregarding the agreement of the parties. (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. the Court of Appeals reversed the lower court and held that she was entitled to a right of way on petitioner's property and that the way proposed by Yolanda would cause the least damage and detriment to the servient estate. 6 The appellate court however did not award damages to private respondent as petitioner did not act in bad faith in resisting the claim. 2 In February 1986 Yolanda purchased the other lot of Antonio Quimen. 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. 4 But on 5 September 1991 the trial court dismissed the complaint for lack of cause of action. extending about nineteen (19) meters from the lot of Yolanda behind the sari sari store of Sotero. Lot No.1448-B-1. Incidentally. In fact she was thereafter barred by Anastacia from passing through her property. But when Yolanda finally offered to pay for the use of the pathway Anastacia refused to accept the payment. 1448-B-6-B.00 per square meter. located directly behind the property of her parents who provided her a pathway gratis et amore between their house. while Lot No. The report was that the proposed right of way was at the extreme right of Anastacia's property facing the public highway. father of respondent Yolanda. On 29 December 1987 Yolanda filed an action with the proper court praying for a right of way through Anastacia's property. Yolanda constructed a house on the lot she bought using as her passageway to the public highway a portion of Anastacia's property. In February 1982 Yolanda purchased Lot No. Although the pathway leads to the municipal road it is not adequate for ingress and egress. starting from the back of Sotero's sari sari store and extending inward by one (1) meter to her property and turning left for about five (5) meters to avoid the store of Sotero in order to reach the municipal road 3 and the way was unobstructed except for an avocado tree standing in the middle. She claims that her agreement with private respondent was to provide the latter with a right of way on the other . when petitioner offered her the property for sale she was hesitant to buy as it had no access to a public road. 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. 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. An ocular inspection upon instruction of the presiding judge was conducted by the branch clerk of court. 1448-B-6-B is behind the property of Sotero. 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. and. According to Yolanda. (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. petitioner denies having promised private respondent a right of way.

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. for the benefit of another person or tenement. (c) the isolation was not due to the acts of the dominant estate. corporeal and immovable. . 11 The conditions sine qua 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. That the aforesaid right of way is the shortest. Petitioner strongly maintains that the proposed right of way is not the shortest access to the public road because of the detour and that. The voluntary easement in favor of private respondent. an easement is a real right on another's property. (b) the dominant estate is willing to pay the proper indemnity. inseparable. indivisible and perpetual. 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. whereby the owner of the latter must refrain from doing or allowing somebody else to do or something to be done on his property. she expects a substantial earning from it. 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. 9 It is jus in re aliena. plaintiff was induced to buy the aforesaid parcels of land . . and considering that an avocado has an average life span of seventy (70) years. The evidence clearly shows that the property of private respondent is hemmed in . In fact. moreover. . 8 As defined. . 12 A cursory examination of the complaint of respondent Yolanda for a right of way 13 readily shows that — [E]ven before the purchase of the said parcels of land the plaintiff was reluctant to purchase the same for they are enclosed with permanent improvements like a concrete fence and store and have (sic) no egress leading to the road but because of the assurance of the defendant that plaintiff will be provided one (1) meter wide and five (5) meters long right of way in the sum of P200. 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. (d) the right of way being claimed is at a point least prejudicial to the servient estate. Petitioner further argues that when Yolanda purchased Lot No.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. most convenient and the least onerous leading to the road and being used by the plaintiff's predecessors-in-interest from the very inception .lot of Antonio Quimen under her administration when it was not yet sold to private respondent. she is likely to suffer the most damage as she derives a net income of P600. which petitioner now denies but which the court is inclined to believe. 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. has in fact become a legal easement or an easement by necessity constituted by law.00 per year from the sale of the fruits of her avocado tree. and. unless extinguished by causes provided by law. . A right of way in particular is a privilege constituted by covenant or granted by law 10 to a person or class of persons to pass over another's property when his tenement is surrounded by realties belonging to others without an adequate outlet to the public highway.

This one.You testified during your direct examination about this plan. xxx xxx xxx Q. the longest distance may be free of obstructions and the easiest or most convenient to pass through. kindly point to this sketch that he is (sic) using in reaching the public road? A. sir. .It is not true. 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. the one where the way is shortest and will cause the least damage should be chosen. ." 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.Now you will agree with me .Just before your brother disposed that 1/2 portion of the lot in question. that she did not cause the isolation of her property.In my property. In the trial court.Now. 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. as elsewhere stated. xxx xxx xxx Q. sir (witness pointed a certain portion located near the proposed right of way). 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. that she offered to pay P200. sir. what right of way does (sic) he use in reaching the public road. 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. the way which will cause the least damage should be used. Q. 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. insofar as consistent with this rule. Q. it is not always so as when there are permanent structures obstructing the shortest distance. petitioner openly admitted — Q. sir. where the easement may be established on any of several tenements surrounding the dominant estate. . 16 This is the test. While shortest distance may ordinarily imply least prejudice. that the right of way is the least prejudicial to the servient estate. We cannot agree. In other words. 14 These facts are confirmed in the ocular inspection report of the clerk of court.Hollow blocks and the side is made of wood. where the distance from the dominant estate to a public highway may be the shortest.by the estates of other persons including that of petitioner. if these two (2) circumstances do not concur in a single tenement. while on the other hand. even if it will not be the shortest.What materials does (sic) this store of the father of the plaintiff made of? A.00 per square meter for her right of way as agreed between her and petitioner. . the main reason why your brother is (sic) using this property is because there was a store located . you will agree with me . However.

In applying Art. the petition is DENIED and the decision subject of review is AFFIRMED. existence and relevancy of specific surrounding circumstances. this Court accepts and adopts them. the trial court concluded. 650 of the New Civil Code. 17 The trial court found that Yolanda's property was situated at the back of her father's property and held that there existed an available space of about nineteen (19) meters long which could conveniently serve as a right of way between the boundary line and the house of Yolanda's father. that the vacant space ended at the left back of Sotero's store which was made of strong materials. which is one (1) meter wide and five (5) meters long at the extreme right of petitioner's property. After all. their relation to each other. this Court finds that the decision of respondent appellate court is thoroughly backed up by law and the evidence.Yes. and the probabilities of the situation.near this portion? A. 18 In sum. WHEREFORE. and another right of way which although longer will only require an avocado tree to be cut down. But notwithstanding its factual observations. 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. respondent Court of Appeals declared that the proposed right of way of Yolanda. or are so glaringly erroneous. 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. 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. sir. Costs against petitioner. the second alternative should be preferred. although erroneously. 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. . As between a right of way that would demolish a store of strong materials to provide egress to a public highway. Absent any showing that these findings and conclusion are devoid of factual support in the records. SO ORDERED. and according to the father of Yolanda there is no other way than this. no reversible error having been committed by respondent Court of Appeals.

COURT OF APPEALS. The Tuasons later developed its 7. Meanwhile. petitioner. ATENEO DE MANILA UNIVERSITY.] LA VISTA ASSOCIATION. No. Solid Homes Inc. prohibited the agents and assignees of Solid Homes. Subsequently. RAFAEL GOSECO. Paragraph three (3) of the deed provides that ".[G. which affirmed in toto the decision of the trial court. the proceedings for preliminary injunction cannot stand separately or proceed independently of the decision rendered on the merits of the main case for injunction." The land was later sold to Ateneo de Manila University with the consent of the Tuasons. while Ateneo erected an adobe wall on the entire length of the boundary of its property parallel to the 15-meter wide roadway which was later removed due to an amicable settlement. vs. INC. Inc. and prayed that LA VISTA be enjoined from preventing and obstructing the use and passage of LOYOLA residents through Mangyan Road. INC. The Supreme Court held that the opinion and findings of fact of a court when issuing a writ preliminary injunction are interlocutory in nature and made even before the trial on the merits is terminated. The trial court issued a preliminary injunction in favor of Solid Homes. Solid Homes. Ateneo sold 16 hectares of its property along Mangyan road to Solid Homes.. assailed the nullification and setting aside of the preliminary injunction issued by the trial court. 1997. and the deed of sale provided among others that the vendor passes unto the vendee the privileges of such right-of-way. Bonifacio A. La Vista. and ANTONIO ADRIANO. . Inc. then instituted an action. respondents. LORENZO TIMBOL. LA VISTA appealed to the Court of Appeals. Being an ancillary remedy. PORFIRIO CABALU. September 5. VICENTE CASIÑO. JR. Leonidas for respondent Solid Homes. one-half of which shall be taken from the property herein sold to the VENDEE and the other half from the portion adjoining belonging to the VENDORS. DOMINGO REYES. The merits of the main case having been already determined in favor of the applicant.. EMDEN ENCARNACION. SOLID HOMES. a residential village developed by the Tuasons. in their behalf and in behalf of the residents of LOYOLA GRAND VILLAS. the Regional Trial Court of Quezon City rendered a decision on the merits affirming and recognizing the easement of right-of-way along Mangyan Road in favor of Solid Homes. Concepcion Regala Cruz for respondents Romulo Villa. JR. developed the Loyola Grand Villas. Abello.5 meter share of the Mangyan road. MARIO AQUINO. Inc. Inc. Bengson Narciso Cudala Pecson & Jimenez for ADMU. and residents of Loyola from traversing the Mangyan Road. et al.the boundary line between the property herein sold and the adjoining property of the VENDORS shall be a road fifteen (15) meters wide. . which was nullified and set aside by the Appellate Court. Alentajan for petitioner. Tomas R. Solid Homes. Inc. In a petition for review on certiorari filed with the Supreme Court. . PEDRO C. PHASES I AND II .. Angara.. SYNOPSIS The area comprising the 15-meter wide roadway was part of a land owned by the Tuasons which was sold to Philippine Building Corporation by virtue of a Deed of Sale with Mortgage.R. Inc.. INC. the preliminary determination of its non-existence ceases to have any force and effect. MERCADO. ROMULO VILLA. 95252.

PROVISIONAL REMEDIES. the owner of an estate may claim a legal or compulsory right-of-way only after he has established the existence of four (4) requisites. By express provisions of Arts. that "Mangyan Road is a road fifteen meters wide.REMEDIAL LAW. namely: (a) the estate is surrounded by other immovables and is without adequate outlet to a public highway. the preliminary determination of its non-existence ceases to have any force and effect. The opinion and findings of fact of a court when issuing a writ of preliminary injunction are interlocutory in nature and made even before the trial on the merits is terminated. A voluntary easement on the other hand is constituted simply by will or agreement of the parties. and the assumption of all the rights and obligations by ATENEO. (b) the Tuasons in 1951 expressly agreed and consented to the assignment of the land to. Jose A. (c) the Tuasons in 1958 filed a complaint against MARYKNOLL and ATENEO for breach of contract and the enforcement of the reciprocal easement on Mangyan Road. (d) LA VISTA President Manuel J. LEGAL EASEMENT DISTINGUISHED FROM VOLUNTARY EASEMENT. EASEMENT.ID. in a letter to ATENEO President Fr. after MARYKNOLL constructed a wall in the middle of the 15 meter wide roadway. ID. one half of which is taken . ID. ORDER ISSUING WRIT.It is very apparent that the parties and their respective predecessors-in-interest intended to establish an easement of right-of-way over Mangyan Road for their mutual benefit. Hence. both as dominant and servient estates. Consequently there may be vital facts subsequently presented during the trial which were not obtaining when the writ of preliminary injunction was issued. SYLLABUS 1. and insofar as consistent with this rule. EASEMENT IN CASE AT BAR A VOLUNTARY ONE. The opening of an adequate outlet to a highway can extinguish only legal or compulsory easements.J.. where the distance from the dominant estate to a public highway may be shortest... PRELIMINARY INJUNCTION. not voluntary easements like in the case at bar. And it does not necessarily mean that when a writ of preliminary injunction issues a final injunction follows. 2. and (d) the right-of-way claimed is at a point least prejudicial to the servient estate. — A legal or compulsory easement is that which is constituted by law for public use or for private interest. The merits of the main case having been already determined in favor of the applicant. S. INTERLOCUTORY. the proceedings for preliminary injunction cannot stand separately or proceed independently of the decision rendered on the merits of the main case for injunction. 3. Gonzales admitted and clarified in 1976. This is quite evident when: (a) the Tuasons and the Philippine Building Corporation in 1949 stipulated in par. We thus repeat what we said in Solid Homes. The fact that an easement by grant may have also qualified as an easement of necessity does not detract from its permanency as a property right. (c) the isolation was not due to the proprietor's own acts. both as dominant and servient estates. to equate the basis for the issuance of a preliminary injunction with that for the issuance of a final injunctive writ is erroneous.. and demanded that MARYKNOLL set back its wall to restore Mangyan Road to its original width of 15 meters. including the obligation to contribute seven and one-half meters of the property sold to form part of the 15-meter wide roadway. PROPERTY. 3 of their Deed of Sale with Mortgage that the "boundary line between the property herein sold and the adjoining property of the VENDORS shall be a road fifteen (15) meters wide. (b) after payment of the proper indemnity.CIVIL LAW. — From the facts of the instant case it is very apparent that the parties and their respective predecessors-in-interest intended to establish an easement of right-of-way over Mangyan Road for their mutual benefit. 649 and 650 of the New Civil Code. Inc. v. Cruz. La Vista which respondent Court of Appeals quoted in its assailed Decision — Being an ancillary remedy. which survives the termination of the necessity.. — A writ of preliminary injunction is generally based solely on initial and incomplete evidence. OWNERSHIP AND ITS MODIFICATION. one-half of which shall be taken from the property herein sold to the VENDEE and the other half from the portion adjoining belonging to the vendors".

the Tuasons and the Philippine Building Corporation. — Finally petitioner questions the intervention of some LOYOLA residents at a time when the case was already on appeal. (f) LA VISTA President Luis G. and thus the court could not have declared the existence of an easement created by the manifest will of the parties. 4. ALLOWED ON APPEAL FOR THOROUGH DISPOSITION OF CASE. are obviously and manifestly late... received by this Court on 26 March 1997. The opening of an adequate outlet to a highway can extinguish only legal or compulsory easements. respectively. beyond the period prescribed under .from your property and the other half from the La Vista Subdivision. Rule 19. acknowledged that "'one-half of the whole length of (Mangyan Road) belongs to La Vista Assn. like any other contract. ADEQUATE OUTLET TO A HIGHWAY CANNOT EXTINGUISH VOLUNTARY EASEMENT. Quimson.. 6. Its proper aim is to facilitate the application of justice to the rival claims of contending parties. when the easement in this case was established by contract. — That there is no contract between LA VISTA and Solid Homes. like all other Rules therein promulgated. ID. In sum. Rule 12 of the Rules of Court (now Sec. Meanwhile. . ID. not voluntary easements like in the case at bar. i. — The argument of petitioner LA VISTA that there are other routes to LOYOLA from Mangyan Road is likewise meritless. 1997 Rules of Civil Procedure). to say the least. It . a judgment thereon had been promulgated in favor of private respondent and on appeal by the losing party . ACTIONS. So that the easement of a right-of-way on your 7 1/2 m. ORDINARILY NOT ALLOWED AFTER TRIAL. PARTIES MAY STIPULATE TO OBSERVE PROVISIONS OF CONTRACT BY ALL WHO IN THE FUTURE MAY SUCCEED THEM. the same could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate. the whole purpose and object of which is to make the powers of the Court fully and completely available for justice. 245-246). clearly established a contractual easement of rightof-way over Mangyan Road. When the Philippine Building Corporation transferred its rights and obligations to ATENEO the Tuasons expressly consented and agreed thereto. Inc. portion of the road in your favor". the Tuasons themselves developed their property into what is now known as LA VISTA. the parties unequivocally made provisions for its observance by all who in the future might succeed them in dominion. OBLIGATIONS AND CONTRACTS.. Suffice it to say that in Director of Lands v.ID. (e) LA VISTA. ATENEO sold the hillside portions of its property to Solid Homes. But Rule 12 of the Rules of Court.. and submits that intervention is no longer permissible after trial has been concluded. Court of Appeals (93 SCRA 238. 5. These certainly are indubitable proofs that the parties concerned had indeed constituted a voluntary easement of right-of-way over Mangyan Road and. Inc.ID. and.e. Section 2. acknowledged the existence of the contractual right of-way as it manifested that the mutual right-of-way between the Ateneo de Manila University and La Vista Homeowners' Association would be extinguished if it bought the adjacent ATENEO property and would thus become the owner of both the dominant and servient estates. which survives the termination of the necessity. including the right over the easement of right-of-way. 2. . INTERVENTION. The predecessors-in-interest of both LA VISTA and Solid Homes. is simply a rule of procedure. Inc. The fact that an easement by grant may have also qualified as an easement of necessity does not detract from its permanency as a property right. in a letter addressed to the Chief Justice.. portion was created in our favor and likewise an easement of right-of-way was created on our 7 1/2 m. Inc. The purpose of procedure is not to thwart justice. .. we said — It is quite clear and patent that the motions for intervention filed by the movants at this stage of the proceedings where trial has already been concluded.. On the other hand. . the same was affirmed by the Court of Appeals and the instant petition for certiorari to review said judgment is already submitted for decision by the Supreme Court. is devoid of merit. The other half is owned by Miriam (Maryknoll) and the Ateneo in equal portions". in its offer to buy the hillside portion of the ATENEO property in 1976.REMEDIAL LAW.

which was then acting for and in behalf of Ateneo de Manila University (ATENEO) in buying the properties from the Tuasons. should intervenors' claims be proven to be true. On the contrary. 1949. which said document is incorporated herein and made an integral part of this contract by reference . the disagreements always stemming from this unresolved issue: Is there an easement of right-of-way over Mangyan Road? llcd In resolving this controversy. . to their successors-in-interests and to all purchasers for value and in good faith and thereby open the door to fraud. . the Court would wish to write finis to this seemingly interminable debate which has dragged on for more than twenty years. J p: MANGYAN ROAD is a 15-meter wide thoroughfare in Quezon City abutting Katipunan Avenue on the west. Mangyan Road serves as the boundary between LA VISTA on one side and ATENEO and MARYKNOLL on the other. sold." On 7 December 1951 the Philippine Building Corporation. It does not constitute the thing itself which courts are always striving to secure to litigants. In other words. traversing the edges of La Vista Subdivision on the north and of the Ateneo de Manila University and Maryknoll (now Miriam) College on the south.was created not to hinder and delay but to facilitate and promote the administration of justice. it is a means to an end. On their part. The road has been the subject of an endless dispute. with the consent of the Tuasons. . DECISION BELLOSILLO. On 1 July 1949 the Tuasons sold to Philippine Building Corporation a portion of their landholdings amounting to 1. The deed of assignment states — The ASSIGNEE hereby agrees and assumes to pay the mortgage obligation on the above-described land in favor of the MORTGAGOR and to perform any and all terms and conditions as set forth in the Deed of Sale with Mortgage dated July 1. the intervention does not appear to have been filed to delay the proceedings. Paragraph three (3) of the deed provides that ". The denial of the motion for intervention arising from the strict application of the Rule due to alleged lack of notice to. .556 square meters by virtue of a Deed of Sale with Mortgage. After all. were resolved together with the issues herein resulting in a more thorough disposal of this case. or the alleged failure of. The area comprising the 15-meter wide roadway was originally part of a vast tract of land owned by the Tuasons in Quezon City and Marikina. the subject parcel of land to ATENEO which assumed the mortgage.330. it seems to have expedited the resolution of the case as the incidents brought forth by the intervention. Thus the boundary . one-half of which shall be taken from the property herein sold to the VENDEE and the other half from the portion adjoining belonging to the VENDORS. the boundary line between the property herein sold and the adjoining property of the VENDORS shall be a road fifteen (15) meters wide. hereinabove referred to. falsehood and misrepresentation. movants to act seasonably will lead the Court to commit an act of injustice to the movants. It bends towards the east and ends at the gate of Loyola Grand Villas Subdivision. the Tuasons developed a part of the estate adjoining the portion sold to Philippine Building Corporation into a residential village known as La Vista Subdivision. assigned and formally transferred in a Deed of Assignment with Assumption of Mortgage. which could have been raised in another case. It is designed as the means best adopted to obtain that thing.

between LA VISTA and the portion sold to Philippine Building Corporation was the 15-meter wide roadway known as the Mangyan Road. On 6 June 1952 ATENEO sold to MARYKNOLL the western portion of the land adjacent to Mangyan Road. MARYKNOLL then constructed a wall in the middle of the 15-meter wide roadway making one-half of Mangyan Road part of its school campus. The Tuasons objected and later filed a complaint before the then Court of First Instance of Rizal for the demolition of the wall. Subsequently, in an amicable settlement, MARYKNOLL agreed to remove the wall and restore Mangyan Road to its original width of 15 meters. Meanwhile, the Tuasons developed its 7.5-meter share of the 15-meter wide boundary. ATENEO deferred improvement on its share and erected instead an adobe wall on the entire length of the boundary of its property parallel to the 15-meter wide roadway. On 30 January 1976 ATENEO informed LA VISTA of the former's intention to develop some 16 hectares of its property along Mangyan Road into a subdivision. In response, LA VISTA President Manuel J. Gonzales clarified certain aspects with regard to the use of Mangyan Road. Thus — . . . The Mangyan Road is a road fifteen meters wide, one-half of which is taken from your property and the other half from the La Vista Subdivision. So that the easement of a right-of-way on your 7 ½ m. portion was created in our favor and likewise an easement of right-ofway was created on our 7 ½ portion of the road in your favor (paragraph 3 of the Deed of Sale between the Tuasons and the Philippine Building Corporation and Ateneo de Manila dated 1 July 1949 . .. On 28 April 1976 LA VISTA President Manuel J. Gonzales, in a letter to ATENEO President Fr. Jose A. Cruz, S. J., offered to buy under specified conditions the property ATENEO was intending to develop. One of the conditions stipulated by the LA VISTA President was that "[i]t is the essence of the offer that the mutual right of way between the Ateneo de Manila University and La Vista Homeowners' Association will be extinguished." The offer of LA VISTA to buy was not accepted by ATENEO. Instead, on 10 May 1976 ATENEO offered to sell the property to the public subject to the condition that the right to use the 15-meter roadway will be transferred to the vendee who will negotiate with the legally involved parties regarding the use of such right as well as the development costs for improving the access road. LA VISTA became one of the bidders. However it lost to Solid Homes, Inc., in the bidding. Thus on 29 October 1976 ATENEO executed a Deed of Sale in favor of Solid Homes, Inc., over parcels of land covering a total area of 124,424 square meters subject, among others, to the condition that — 7.The VENDOR hereby passes unto the VENDEE, its assigns and successors-in-interest the privileges of such right of way which the VENDOR acquired, and still has, by virtue of the Deeds mentioned in the immediately preceeding paragraph hereof; provided, that the VENDOR shall nonetheless continue to enjoy said right of way privileges with the VENDEE, which right of way in favor of the VENDOR shall be annotated on the pertinent road lot titles. However it is hereby agreed that the implementation of such right of way shall be for the VENDEE's sole responsibility and liability, and likewise any development of such right of way shall be for the full account of the VENDEE. In the future, if needed, the VENDOR is therefore free to make use of the aforesaid right of way, and/or Mangyan Road access, but in such a case the VENDOR shall

contribute a pro-rata share in the maintenance of the area. Subsequently, Solid Homes, Inc., developed a subdivision now known as Loyola Grand Villas and together they now claim to have an easement of right-of-way along Mangyan Road through which they could have access to Katipunan Avenue. LA VISTA President Manuel J. Gonzales however informed Solid Homes, Inc., that LA VISTA could not recognize the right-of-way over Mangyan Road because, first, Philippine Building Corporation and its assignee ATENEO never complied with their obligation of providing the Tuasons with a right-of-way on their 7.5-meter portion of the road and, second, since the property was purchased for commercial purposes, Solid Homes, Inc., was no longer entitled to the right-of-way as Mangyan Road was established exclusively for ATENEO in whose favor the right-of-way was originally constituted. LA VISTA, after instructing its security guards to prohibit agents and assignees of Solid Homes, Inc., from traversing Mangyan Road, then constructed one-meter high cylindrical concrete posts chained together at the middle of and along the entire length of Mangyan Road thus preventing the residents of LOYOLA from passing through. Solid Homes, Inc., complained to LA VISTA but the concrete posts were not removed. To gain access to LOYOLA through Mangyan Road an opening through the adobe wall of ATENEO was made and some six (6) cylindrical concrete posts of LA VISTA were destroyed. LA VISTA then stationed security guards in the area to prevent entry to LOYOLA through Mangyan Road.

On 17 December 1976, to avert violence, Solid Homes, Inc., instituted the instant case, docketed as Civil Case No. Q-22450, before the then Court of First Instance of Rizal and prayed that LA VISTA be enjoined from preventing and obstructing the use and passage of LOYOLA residents through Mangyan Road. LA VISTA in turn filed a third-party complaint against ATENEO. On 14 September 1983 the trial court issued a preliminary injunction in favor of Solid Homes, Inc. (affirming an earlier order of 22 November 1977), directing LA VISTA to desist from blocking and preventing the use of Mangyan Road. The injunction order of 14 September 1983 was however nullified and set aside on 31 May 1985 by the then Intermediate Appellate Court 1 in AC-G.R. SP No. 02534. Thus in a petition for review on certiorari, docketed as G.R. No. 71150, Solid Homes, Inc., assailed the nullification and setting aside of the preliminary injunction issued by the trial court. Meanwhile, on 20 November 1987 the Regional Trial Court of Quezon City rendered a decision on the merits 2 in Civil Case No. Q-22450 affirming and recognizing the easement of right-of-way along Mangyan Road in favor of Solid Homes, Inc., and ordering LA VISTA to pay damages thus — ACCORDINGLY, judgment is hereby rendered declaring that an easement of a right-of-way exists in favor of the plaintiff over Mangyan Road, and, consequently, the injunction prayed for by the plaintiff is granted, enjoining thereby the defendant, its successors-in-interest, its/their agents and all persons acting for and on its/their behalf, from closing, obstructing, preventing or otherwise refusing to the plaintiff, its successors-in-interest, its/their agents and all persons acting for and on its/their behalf, and to the public in general, the unobstructed ingress and egress on Mangyan Road, which is the boundary road between the La Vista Subdivision on one hand, and the Ateneo de Manila University, Quezon City, and the Loyola Grand Villas Subdivision, Marikina, Metro Manila, on the other; and, in addition the defendant is ordered to pay the plaintiff reasonable attorney's fees in the amount of P30,000.00. The

defendant-third-party plaintiff is also ordered to pay the third-party defendant reasonable attorney's fees for another amount of P15,000.00. The counter-claim of the defendant against the plaintiff is dismissed for lack of merit. With costs against the defendant. Quite expectedly, LA VISTA appealed to the Court of Appeals, docketed as CA-G.R. CV No. 19929. On 20 April 1988 this Court, taking into consideration the 20 November 1987 Decision of the trial court, dismissed the petition docketed as G.R. No. 71150 wherein Solid Homes, Inc., sought reversal of the 31 May 1985 Decision in AC-G.R. SP No. 02534 which nullified and set aside the 14 September 1983 injunction order of the trial court. There we said — Considering that preliminary injunction is a provisional remedy which may be granted at any time after the commencement of the action and before judgment when it is established that the plaintiff is entitled to the relief demanded and only when his complaint shows facts entitling such reliefs (Section 3(a), Rule 58) and it appearing that the trial court had already granted the issuance of a final injunction in favor of petitioner in its decision rendered after trial on the merits (Sections 7 & 10, Rule 58, Rules of Court), the Court resolved to Dismiss the instant petition having been rendered moot and academic. An injunction issued by the trial court after it has already made a clear pronouncement as to the plaintiff's right thereto, that is, after the same issue has been decided on the merits, the trial court having appreciated the evidence presented, is proper, notwithstanding the fact that the decision rendered is not yet final (II Moran, pp. 81-82, 1980 ed.) Being an ancillary remedy, the proceedings for preliminary injunction cannot stand separately or proceed independently of the decision rendered on the merit of the main case for injunction. The merit of the main case having been already determined in favor of the applicant, the preliminary determination of its non-existence ceases to have any force and effect. 3 On the other hand, in CA-G.R. CV No. 19929, several incidents were presented for resolution: two (2) motions filed by Solid Homes, Inc., to cite certain officers of LA VISTA for contempt for alleged violation of the injunction ordaining free access to and egress from Mangyan Road, to which LA VISTA responded with its own motion to cite Solid Homes, Inc., for contempt; a motion for leave to intervene and to re-open Mangyan Road filed by residents of LOYOLA; and, a petition praying for the issuance of a restraining order to enjoin the closing of Mangyan Road. On 21 September 1989 the incidents were resolved by the Court of Appeals 4 thus — 1.Defendant-appellant La Vista Association, Inc., its Board of Directors and other officials and all persons acting under their orders and in their behalf are ordered to allow all residents of Phase I and II of Loyola Grand Villas unobstructed right-of-way or passage through the Mangyan Road which is the boundary between the La Vista Subdivision and the Loyola Grand Villas Subdivision; 2.The motion to intervene as plaintiffs filed by the residents of Loyola Grand Villas Subdivision is GRANTED; and 3.The motions for contempt filed by both plaintiff-appellee and defendant-appellant are DENIED. This resolution is immediately executory. 5 On 15 December 1989 both motions for reconsideration of Solid Homes, Inc., and LA VISTA were

Q-22450. to equate the basis for the issuance of a preliminary injunction with that for the issuance of a final injunctive writ is erroneous. In separate petitions. Generally. Hon. Hence. the Second Division of the Court of Appeals 6 in CA-G. v. 91502 for being moot as its main concern was merely the validity of a provisional or preliminary injunction earlier issued. A writ of preliminary injunction is generally based solely on initial and incomplete evidence. Inc. while that of LA VISTA in G. On 6 September 1990 the motions for reconsideration and/or re-raffle and to set the case for oral argument were denied. Court of Appeals. 91433 and 91502. ATENEO and LOYOLA residents to desist from intruding into Mangyan Road. Artiaga. Inc. On 22 May 1990.R. prayed for an order directing the appellate court to take cognizance of and hear the motions for contempt. the subject of inquiry is not merely the issuance of a preliminary injunction but the final injunctive writ which was issued after trial on the merits.R. Consequently there may be vital facts subsequently presented during the trial which were not obtaining when the writ of preliminary injunction was issued. Accordingly. We also denied the petition in G.. 11 and. however. respondent Court of Appeals in its assailed Decision rightly held that — We are unswayed by appellant's theory that the cases cited by them in their Brief (pages 17 and 32) and in their motion for early resolution (page 11. 4. pending resolution of G.R. No. Inc. Rollo) to buttress the first assigned error. The petition of Solid Homes. Inc. 13 We do not agree with petitioner. S . 19929 affirmed in toto the Decision of the trial court in Civil Case No. 91433. The opinion and findings of fact of a court when issuing a writ of preliminary injunction are interlocutory in nature and made even before the trial on the merits is terminated. CV No. docketed as G. Inc. Hon. and its successors-in-interest the ingress and egress on Mangyan Road. CV No. 8 affirmed by this Court in Tecson v. v. Intermediate Appellate Court..R. and therefore res judicata to the instant query. 91502 sought the issuance of a preliminary injunction to order Solid Homes. 147. Diego .R. it is axiomatic that res judicata will attach in favor of La Vista if and when the case under review was disposed of on the merits and with finality (Manila Electric Co. 144. Hon. In view of the affirmance of the Decision by the Court of Appeals in CA-G.. 50 Phil. Rules of Court). 12 and in holding that an easement of right-of-way over Mangyan Road exists. Ortiz. which upon closer examination negates the very proposition. The reliance of petitioner on the cited cases is out of place as they involve the issuance of a preliminary injunction pending resolution of a case on the merits. both elevated the 21 September 1989 and 15 December 1989 Resolutions of the Court of Appeals to this Court. No. 7 Consequently we are left with the instant case where petitioner LA VISTA assails the Decision of respondent Court of Appeals affirming in toto the Decision of the trial court which rendered a judgment on the merits and recognized an easement of right-of-way along Mangyan Road. It is quite strange that appellant was extremely cautious in not mentioning this doctrine but the vague disquisition nevertheless points to this same tenet.R. vs. 9 (b) La Vista Association. In its first assigned error. (c) La Vista v. Rule 71.R.denied. 19929 this Court dismissed the petition in G. petitioner LA VISTA argues that respondent appellate court erred in disregarding the decisions in (a) La Vista Association.. permanently enjoining LA VISTA from closing to Solid Homes. 10 affirmed by this Court in Rivera v. are final judgments on the merits of. Leviste. Nos.. 91433 in the absence of a discernible grave abuse of discretion in the ruling of the appellate court that it could not entertain the motions to cite the parties for contempt "because a charge of contempt committed against a superior court may be filed only before the court against whom the contempt has been committed" (Sec. And it does not necessarily mean that when a writ of preliminary injunction issues a final injunction follows. No. Hon. No. In the instant case. Mendoza.

Sr. To justify the imposition of this servitude. 1972. Carmona. p. What is left to examine is whether or not petitioner is entitled to a legal or compulsory easement of a right-of-way — which should be distinguished from a voluntary easement. namely.. v. 19 concerns a legal or compulsory easement of right-of-way — Since there is no agreement between the contending parties in this case granting a right-of-way by one in favor of the other. Roman Catholic Archbishop vs.vs.. cited in Comments on the Rules of Court. By express provisions of Arts. 2nd ed. v. Gatchalian Realty. Inc. Civil Code of the Philippines. Appellants suffer from the mistaken notion that the "merits" of the certiorari petitions impugning the preliminary injunction in the cases cited by it are tantamount to the merits of the main case. the owner of an estate may claim a legal or compulsory right-of-way only after he has established the existence of four (4) requisites.. 371) Again this is misplaced. page 40). 649 and 650 of the New Civil Code. Quite the contrary. 283. by Moran. not a fictitious or artificial. necessity for it' (See Tolentino. Director of Lands. Volume II. The merits of the main case having been already determined in favor of the applicant. Rule 58. Gatchalian Realty. La Vista 15 which respondent Court of Appeals quoted in its assailed Decision 16 — Being an ancillary remedy. the proceedings for preliminary injunction cannot stand separately or proceed independently of the decision rendered on the merits of the main case for injunction. the preliminary determination of its non-existence ceases to have any force and effect. A legal or compulsory easement is that which is constituted by law for public use or for private interest. the establishment of a voluntary easement between the petitioner and the respondent company and/or the other private respondents is ruled out. v. page 365. unlike the present recourse which is directed against a final injunctive writ under Section 10. the socalled "final judgments'' adverted to dealt only with the propriety of the issuance or non-issuance of the writ of preliminary injunction. Inc. Sr. that 'mere convenience for the dominant estate is not enough to serve as its basis. 339. 350-351. 1986 Fourth Revised Edition. there must be a real. 281. subject of the instant appeal. Inc. II. Volume 1. 14 We thus repeat what we said in Solid Homes. 17 no less than five (5) times 18 — To allow the petitioner access to Sucat Road through Gatchalian Avenue inspite of a road right-of-way provided by the petitioner's subdivision for its buyers simply because Gatchalian Avenue allows petitioner a much greater ease in going to and coming from the main thoroughfare is to completely ignore what jurisprudence has consistently maintained through the years regarding an easement of a right-of-way.. Ramos. Vol. 35 Phil. cited in Remedial Law Compendium.. Thus the invocation of the disputed matter herein is misplaced.. by Regalado. Petitioner LA VISTA in its lengthy Memorandum also quotes our ruling in Ramos. 70 Phil. (a) the estate is surrounded by other immovables and is without . 1970 edition.

" (e) LA VISTA.J. both as dominant and servient estates. So that the easement of a right-of-way on your 7 ½ m. and demanded that MARYKNOLL set back its wall to restore Mangyan Road to its original width of 15 meters. Inc. one-half of which shall be taken from the property herein sold to the VENDEE and the other half from the portion adjoining belonging to the vendors. portion was created in our favor and likewise an easement of right-of-way was created on our 7½ m. in its offer to buy the hillside portion of the ATENEO property in 1976. where the distance from the dominant estate to a public highway may be the shortest.. Jose A. we are of the belief. and. The other half is owned by Miriam (Maryknoll) and the Ateneo in equal portions. (d) LA VISTA President Manuel J. (c) the isolation was not due to the proprietor's own acts. in a letter addressed to the Chief Justice. One's attention should rather be focused on the contractual stipulations in the deed of sale between the Tuason Family and the Philippine Building Corporation (paragraph 3.adequate outlet to a public highway. portion of the road in your favor. including the obligation to contribute seven and one-half meters of the property sold to form part of the 15-meter wide roadway. acknowledged the existence of the contractual right-of-way as it manifested that the mutual right-of-way between the Ateneo de Manila University and La Vista Homeowners' Association would be extinguished if it bought the adjacent ATENEO property and would thus become the owner of both the dominant and servient estates. onehalf of which is taken from your property and the other half from the La Vista Subdivision. acknowledged that "one-half of the whole length of (Mangyan Road) belongs to La Vista Assn. and the assumption of all the rights and obligations by ATENEO. Thus respondent Court of Appeals did not commit a reversible error when it ruled that — Concerning the pivotal question posed herein on the existence of an easement. (d) the right-of-way claimed is at a point least prejudicial to the servient estate. S. Cruz. the same could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate. and. 3 of their Deed of Sale with Mortgage that the "boundary line between the property herein sold and the adjoining property of the VENDORS shall be a road fifteen (15) meters wide. and thus hereby hold that a right-of-way was properly appreciated along the entire route of Mangyan Road. Gonzales admitted and clarified in 1976. (c) the Tuasons in 1958 filed a complaint against MARYKNOLL and ATENEO for breach of contract and the enforcement of the reciprocal easement on Mangyan Road. like any other contract." These certainly are indubitable proofs that the parties concerned had indeed constituted a voluntary easement of right-of-way over Mangyan Road and. 20 A voluntary easement on the other hand is constituted simply by will or agreement of the parties. thereof) which were incorporated in the deed of assignment with assumption of mortgage by the Philippine Building Corporation in favor of Ateneo (first paragraph. This is quite evident when: (a) the Tuasons and the Philippine Building Corporation in 1949 stipulated in par. page 4 of the . the pretense that the court a quo erred in holding that Mangyan Road is the boundary road between La Vista and Ateneo (page 31. after MARYKNOLL constructed a wall in the middle of the 15-meter wide roadway.. (f) LA VISTA President Luis G. that "Mangyan Road is a road fifteen meters wide. received by this Court on 26 March 1997. Incidentally. Quimson. Answer). Appellant's Brief) does not raise any critical eyebrow since the same is wholly irrelevant to the existence of a servitude thereon from their express admission to the contrary (paragraph 1." (b) the Tuasons in 1951 expressly agreed and consented to the assignment of the land to. From the facts of the instant case it is very apparent that the parties and their respective predecessors-in-interest intended to establish an easement of right-of-way over Mangyan Road for their mutual benefit. in a letter to ATENEO President Fr. (b) after payment of the proper indemnity. and insofar as consistent with this rule.

589. An injunction may also be obtained in order to restrain the owner of the servient tenement from obstructing or impairing in any manner the lawful use of the servitude (Resolme v. The free ingress and egress along Mangyan Road created by the voluntary agreement between Ateneo and Solid Homes. the Tuasons and the Philippine Building Corporation.. and thus the court could not have declared the existence of an easement created by the manifest will of the parties. by Tolentino. Volume 2. The opening of an adequate outlet to a highway can extinguish only legal or compulsory easements. The fact that an easement by grant may have also qualified as an easement of necessity does not detract from its permanency as a property right. 27 Phil. Lazo. i. For. 19 Ruling Case Law 745). the owner of the dominant tenement may ask for the destruction of such works and the restoration of the things to their condition before the impairment was committed. by Paras. 1965 edition.e. not voluntary easements like in the case at bar.. pages 582. Inc. 1972 Edition. The predecessors-in-interest of both LA VISTA and Solid Homes." (Commentaries and Jurisprudence on the Civil Code of the Philippines. Inc. but merely declaring the existence of one created by the manifest will of the parties herein in recognition of autonomy of contracts (Articles 1306 and 619. Inc. 416. Civil Code of the Philippines. 1976 (page 22. pages 602-603). 1984 edition. New Civil Code) with the corresponding duty on the servient estate not to obstruct the same so much so that — When the owner of the servient tenement performs acts or constructs works impairing the use of the servitude. page 320)..deed) as well as in the deed of sale dated October 24. 1976 when the property was ultimately transferred by Ateneo to plaintiff-appellee. 22 The argument of petitioner LA VISTA that there are other routes to LOYOLA from Mangyan Road is likewise meritless. page 549). cited in Civil Law Annotated. with indemnity for damages suffered (3 Sanchez Roman 609). 417. even an injunction cannot be used to create one as there is no such thing as a judicial easement. to say the least. Like any other contractual stipulation. Ibañez. Tolentino. more so when the easement was implicitly recognized by the letters of the La Vista President to Ateneo dated February 11 and April 28.. the court merely declares the existence of an easement created by the parties. New Civil Code. the same cannot be extinguished except by voluntary rescission of the contract establishing the servitude or renunciation by the owner of the dominant lots (Chuanico vs. supra. is thus legally demandable (Articles 619 and 625. 2nd Series. it is not creating one. 7 CA Reports. page 308. Volume II. which survives the termination of the necessity. Volume II. Decision. when the court says that an easement exists. by Padilla. 21 Resultantly. that We are not constituting an easement along Mangyan Road. respectively. Respondent court could not have said it any better — It must be emphasized. however. 418). 1963 edition. is devoid of merit. As in the instant case. 23 That there is no contract between LA VISTA and Solid Homes. clearly established a contractual easement of right-of-way over Mangyan Road. When the Philippine Building Corporation transferred its .

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

.SO ORDERED.

This would be in the nature of a personal easement under Article 614 of the Civil Code. Edilberto Alcantara. Jr. CORNELIO B. 25 for failure of petitioners to pay rentals. No. POLICARPIO OBREGON. 2001. ESCOLASTICA ONDONG. aECSHI SYLLABUS 1. vs.D. 1517. 1517). otherwise known as "The Urban Land Reform Act. that the applicable law is BP Blg. BUENAVENTURA ONDONG. Obviously. No.D.. CASE AT BAR. unless the title constituting it or the law otherwise provides. LEASE. one must be: (1) a legitimate tenant of the land for ten (10) years or more. 1517.. RIGHT OF FIRST REFUSAL MAY BE AVAILED OF ONLY BY LEGITIMATE TENANT OF THE LAND. Respondent Reta allowed petitioner Ricardo Roble to use sixty-two (62) coconut trees for P186 from where he gathered tuba. Respondent Reta denies that he has lease agreements with petitioners Edilberto Alcantara and Ricardo Roble. NO. claiming they are the legitimate tenants or lessees thereof. for petitioners.. December 14.ID. petitioners cannot claim any right under the said law since the land involved is not an ULRZ. ID. the Supreme Court held: that P. Alcantara. those who do not fall within the said category cannot be considered "legitimate tenants" and.[G. + RENATO CRUZ. and BENJAMIN HALASAN. JR. respondent." pertains to areas proclaimed as Urban Land Reform Zones. — Presidential Decree No. RETA. the conclusion . HENRY SESBINO. No.R. SERGIO SESBINO." pertains to areas proclaimed as Urban Land Reform Zones. + RICARDO ROBLE. CASE AT BAR. PERTAINS TO AREAS PROCLAIMED AS URBAN LAND REFORM ZONES. FLORENCIO VILLARMIA. Garcia Iñigo De Guzman Sarsaba Heje & Associates for private respondent. 2. 1517. MANUEL CENTENO.D. Petitioner Roble was allowed to construct his house on the land because it would facilitate his gathering of tuba. This arrangement would show that it is a usufruct and not a lease. (2) must have built his home on the land by contract. THE URBAN LAND REFORM ACT (P. and that petitioners are not the legitimate tenants contemplated by PD No. SYNOPSIS Petitioners filed a complaint for the exercise of their right of first refusal to purchase subject property in accordance with Section 3(g) of P.D. MARCELINO CENEZA. 136996. not entitled to the right of first refusal to purchase the property should the owner of the land decide to sell the same at a reasonable price within a reasonable time. (3) has resided continuously for the last ten (10) years. ID. Both the trial court and the CA dismissed the complaint.. 1517 since it has not been proclaimed as an Urban Land Reform Zone. who can exercise the right of first refusal. Whether the amicable settlement is valid or not..] EDILBERTO ALCANTARA. ID. On appeal. otherwise known as the "Urban Land Reform Act. on the other hand. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance. Pedro F. that subject land is beyond the ambit of P. 1517.CIVIL LAW. therefore. — To be able to qualify and avail oneself of the rights and privileges granted by the said decree. and. ESTEBAN RALLOS. failed to present proof of a lease agreement other than his testimony in court that he bought the house that he is occupying from his father-in-law. Consequently. petitioners. No.

for the exercise of the right of first refusal under Presidential Decree No. Thus. 5 On April 6. Renato Cruz. 1998. Henry Sesbino. Hence. they are still not the legitimate tenants contemplated by Presidential Decree No. petitioner Roble is not a legitimate tenant as defined by Presidential Decree No. plaintiffs appealed the decision to the Court of Appeals. who can exercise the right of first refusal. 1994. cdaisa The Facts Edilberto Alcantara. This notwithstanding. 1517. They also claimed that the amicable settlement executed between Reta and Ricardo Roble was void ab initio for being violative of Presidential Decree No. Reta. Davao City. 1517. dismissing petitioners' complaint for the exercise of the right of first refusal under Presidential Decree No. attorney's fees and nullity of amicable settlement. 25 for failure of the plaintiffs to pay the rentals for the use of the land. Branch 14. Manuel Centeno. 1994. a complaint 4 against Cornelio B. 1517 since they are legitimate tenants or lessees thereof. Marcelo Ceneza. 1 petitioners seek to review the decision 2 of the Court of Appeals affirming the decision 3 of the Regional Trial Court. Escolastica Ondong. the Court of Appeals promulgated a decision 7 affirming in toto the decision of the trial court. Jr. Sergio Sesbino. this appeal. Policarpio Obregon. 1517 since it has not been proclaimed as an Urban Land Reform Zone. Branch 14. covered by Transfer Certificate of Title No. The plaintiffs claimed that they were tenants or lessees of the land located in Barangay Sasa. 1517. On the other hand. and that the amicable settlement between him and Ricardo Roble was translated to the latter and fully explained in his own dialect. respondent Reta admitted that he had verbal agreements with them. 8 The Issue . filed with the Regional Trial Court. J p: The Case In this petition for review. Ricardo Roble. Florencio Villarmia. Davao City. and that Reta is threatening to eject them from the land. Buenaventura Ondong and Benjamin Halasan. the trial court rendered a decision dismissing the complaint and ordering the plaintiffs to pay Reta certain sums representing rentals that had remained unpaid. 6 On December 9.would still be the same since the agreement was one of usufruct and not of lease. injunction with preliminary injunction. injunction with preliminary injunction. DECISION PARDO. As to the other petitioners. They assert that they have the right of first refusal to purchase the land in accordance with Section 3(g) of Presidential Decree No. Davao City. 1517. Reta claimed that the land is beyond the ambit of Presidential Decree No. aTEScI On March 8. owned by Reta. that the applicable law is Batas Pambansa Blg. 1517. that the land has been converted by Reta into a commercial center. Esteban Rallos. T-72594. attorney's fees and nullity of amicable settlement.

This notwithstanding. 1517. National Housing Authority. As to the other petitioners. 1517. (3) has resided continuously for the last ten (10) years. those who do not fall within the said category cannot be considered "legitimate tenants" and. . 14 Respondent Reta allowed petitioner Ricardo Roble to use sixty-two (62) coconut trees for P186 from where he gathered tuba. 19 ceased to exist as there was termination of the lease. for appropriate action. 1517. A contract has been defined as "a meeting of the minds between two persons whereby one binds himself. which were on a monthly basis since rentals were paid monthly. No. respondent Reta admitted that he had verbal agreements with them.'' 18 Clearly. 15 Petitioner Roble was allowed to construct his house on the land because it would facilitate his gathering of tuba. to give something or to render some service. the conclusion would still be the same since the agreement was one of usufruct and not of lease.The issue is whether petitioners have the right of first refusal under Presidential Decree No. from the moment respondent Reta demanded that the petitioners vacate the premises. Thus. The area involved has not been proclaimed an Urban Land Reform Zone (ULRZ). 1986. (2) must have built his home on the land by contract. 13 Edilberto Alcantara. 1986. 9 The request was further referred to acting mayor Zafiro Respicio. otherwise known as "The Urban Land Reform Act. with respect to the other.D. the request was referred to Mr. petitioners filed a petition with the National Housing Authority requesting that the land they were occupying be declared as an ULRZ. the verbal lease agreements. 12 Respondent Reta denies that he has lease agreements with petitioners Edilberto Alcantara and Ricardo Roble. 1517. 16 Whether the amicable settlement 17 is valid or not. failed to present proof of a lease agreement other than his testimony in court that he bought the house that he is occupying from his father-in-law. unless the title constituting it or the law otherwise provides. On May 27. none of the petitioners is qualified to exercise the right of first refusal under P. This would be in the nature of a personal easement under Article 614 of the Civil Code." pertains to areas proclaimed as Urban Land Reform Zones. on the other hand. Presidential Decree No. as per 2nd Indorsement dated July 1. Jose L. General Manager. petitioners cannot claim any right under the said law since the land involved is not an ULRZ. Obviously. 11 Consequently. they are still not the legitimate tenants contemplated by Presidential Decree No. therefore. petitioner Roble is not a legitimate tenant as defined by Presidential Decree No. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance. who can exercise the right of first refusal. 10 Clearly. one must be: (1) a legitimate tenant of the land for ten (10) years or more. the request to have the land proclaimed as an ULRZ would not be necessary if the property was an ULRZ. The Court's Ruling The petition is without merit. not entitled to the right of first refusal to purchase the property should the owner of the land decide to sell the same at a reasonable price within a reasonable time. Atienza. In fact. To be able to qualify and avail oneself of the rights and privileges granted by the said decree. and. ACTaDH Indeed. This arrangement would show that it is a usufruct and not a lease. Davao City.

P. the Court DENIES the petition. SO ORDERED. the sale or intended sale of the land. . even if the petitioners had the right of first refusal.D. that is.1517. has not happened. the situation which would allow the exercise of that right. No costs. 1517 applies where the owner of the property intends to sell it to a third party. Hence. Another factor which militates against petitioners' claim is the fact that there is no intention on the part of respondent Reta to sell the property. The Court AFFIRMS the decision of the Court of Appeals 21 and the resolution denying reconsideration thereof. No. 20 The Fallo WHEREFORE.

CIVIL PROCEDURE. Ceferino Padua Law Office for private respondent. and that it subjected the vehicles to unnecessary searches. COURT OF APPEALS and METROPOLITAN FABRICS. 1991. petitioner.. Gonzales Batiller Bilog and Associates for petitioner. THE PARTY SEEKING THE ISSUANCE OF WRIT OF PRELIMINARY MANDATORY INJUNCTION MUST HAVE A CLEAR AND UNMISTAKABLE RIGHT. After trial on the merits. 1994 were affirmed. INC. — As held in Pelejo v. private respondent refused to allow petitioner to make excavations on one side of the access road for the installation of water pipes. (2) that his right has been violated and the invasion is material and substantial.R. that it banned entry of petitioner's truck and those of its tenants between 11:30 AM to 1:00 PM and 10:00 PM to 7:00 AM. 1994. Thus. Petitioner sought the issuance of a writ of preliminary injunction requiring private respondent to allow to proceed with the MWSS installation project over the road lot in question. JUSTIFICATION FOR THE ISSUANCE THEREOF. the trial court should have observed caution and denied petitioner's application for the preliminary writ. SYNOPSIS On November 7. Petitioner alleged that in violation of the terms of the Memorandum of Agreement. the court a quo granted petitioner's prayer of preliminary injunction. 1993 and its resolution dated February 28. to justify the issuance of the writ of preliminary mandatory injunction the following must be shown: (1) that the complainant has a clear legal right.. January 15. to allow petitioner's and its tenant's delivery trucks and other vehicles access to the same at any time and without undergoing unnecessary searches.] PROSPERITY CREDIT RESOURCES. private respondent filed a petition for certiorari and prohibition with the Court of Appeals to annul the order of the Regional Trial Court. petitioner cannot claim to have a clear and unmistakable right justifying the issuance of a writ of preliminary mandatory injunction in this case. PROVISIONAL REMEDIES. petitioner filed an injunctive suit in the Regional Trial Court of Quezon City. The Court ruled that the right of the complainant to justify the issuance of preliminary mandatory injunction must be clear and unmistakable because it requires the performance of a particular act or acts and thus tends to do more than maintain the status quo. On November 26. The right of the complainant must be clear and unmistakable . respondents. PRELIMINARY MANDATORY INJUNCTION. In this case. Until such time. and (3) that there is an urgent and permanent necessity for the writ to prevent serious damage. Its motion for reconsideration having been denied. the decision of the Court of Appeals dated November 26. Aggrieved by the decision. Court of Appeals (117 SCRA 665 [1982]). Accordingly. INC.[G. THESAD SYLLABUS REMEDIAL LAW. To achieve a meaning such as that which petitioner proposes requires the consideration of evidence showing the parties' intention in using the word which can only be done during trial on the merits. 114170. the Court found that the word "passage" stated in the memorandum does not clearly and unmistakably convey a meaning that includes a right to install water pipes on the access road. the appellate court granted the petition and set aside the questioned orders after finding that the trial court had acted with grave abuse of discretion in issuing them. 1999. TaDSCA The Supreme Court found the petition devoid of merit. petitioner filed the petition for review on certiorari. vs. No. and to otherwise recognize petitioner's right of way over said lot.

The word "passage" does not. in the ensuing public bidding. and 317707." Its legal meaning is not different. As the reacquisition of these three lots by private respondent would leave the remaining four lots on the northwestern side without access to Tandang Sora Avenue. Bo. The question concerns the meaning of the phrase "for whatever kind of passage. petitioner Prosperity Credit Resources. the full text of which reads: 6 MEMORANDUM OF UNDERTAKING . It means. transit. Inc. By October 27. cdasia On August 3. INC. petitioner foreclosed the mortgage and. petitioner cannot claim to have a "clear and unmistakable" right justifying the issuance of a writ of preliminary mandatory injunction in this case. J p: For review in this case is a decision 1 of the Sixth Division of the Court of Appeals in CA G. Banlat. according to Black's Law Dictionary. 3 The lots comprise a commercial compound with Tandang Sora Avenue as the nearest public road. 1987. The parties' agreement was embodied in a Memorandum of Undertaking. There is no question as to the meaning of the terms "ingress" and "egress. "clearly and unmistakably" convey a meaning that includes a right to install water pipes on the access road. petitioner anchors its alleged right to the preliminary mandatory injunction on the Memorandum of Undertaking.R. unlike an ordinary preliminary injunction. Quezon City. private respondent mortgaged to petitioner seven parcels of land located at 685 Tandang Sora Avenue. The ordinary meaning of the word. is that it is "the act or action of passing: movement or transference from one place or point to another.5 million. 1984. Later." They give petitioner the right to use the private road as a means of entry into and exit from its property on the northwestern side of the compound. petitioner acceded to private respondent's request on the condition that petitioner be given a right of way on the existing private road which forms part of the area to be redeemed by private respondent. which provides that: [T]he above-described lot. Thus. In the case at bar.because. 28684-SP dated November 26. 1993 setting aside a writ of preliminary mandatory injunction issued by the Regional Trial Court of Quezon City (Branch 95). Inc. the "act of passing." To achieve a meaning such as that which petitioner proposes requires the consideration of evidence showing the parties' intention in using the word which can only be done during trial on the merits. however. dated September 18. dated September 18. private respondent's loan amounted to P10. 5 all located on the southern and middle portions of the compound. 317706. became the highest bidder and purchaser of the seven (7) lots subject of the mortgage. Until such time. being an existing private road. 1987. 2 To secure the payment of the loan. the writ of preliminary mandatory injunction requires the performance of a particular act or acts and thus tends to do more than maintain the status quo. as defined in Webster's Dictionary. private respondent negotiated with petitioner for the redemption of three lots covered by TCT Nos. or its successors-in-interest. 317705. will remain open to ingress and egress for whatever kind of passage in favor of PROSPERITY FINANCIAL RESOURCES. 1987. transition. the trial court should have observed caution and denied petitioner's application for the preliminary writ." The trial court read this phrase to mean that petitioner had the right to make excavations on the side of the access road in order to install a network of water pipes. TDAHCS DECISION MENDOZA. 4 As private respondent defaulted in the payment of the loan. gave a loan to private respondent Metropolitan Fabrics.

1991. 317705. INC. its tenants demanded compensation for damage to their merchandise and equipment occasioned by the flooding. 1987 in the city of Manila. after trial. 3. 3. being an existing private road. project. 389-A-1.M. Petitioner sought the issuance of a writ of preliminary mandatory injunction requiring private respondent "to allow [petitioner] to proceed with the MWSS installation project over the road lot in question. Psd-30663. 1992.M. Petitioner alleged that. 8 and 9 of the consolidationsubdivision plan. INC. petitioner filed an injunctive suit in the Regional Trial Court of Quezon City (Branch 95). (LRC) Psd-16383. 5975) situated in the Bo. private respondent refused to allow petitioner to make excavations on one side of the access road for the installation of water pipes.367) SQUARE METERS. 317709. or its successors-in-interest. that it banned entry of petitioner's trucks and those of its tenants between 11:30 A.M. will remain open to ingress and egress for whatever kind of passage in favor of PROSPERITY FINANCIAL RESOURCES. 2. of Banlat. more or less. On December 21. 10 The trial court required the parties to submit position papers in connection with petitioner's prayer for a preliminary mandatory injunction. 377-C-5-A. No. is the registered owner of that certain land covered by Transfer Certificate of Title No. On November 7. petitioner's prayer for a preliminary writ. 317706 & 317707. private respondent alleged that it was petitioner which caused damage to private respondent's tenants by undertaking. & 4 (LRC) Psd-5025. being a portion of the consolidation of Lots 373-E. LRC (GLRO) Rec. 2 & 3. Private respondent prayed for P2. Is. 18." 7 Petitioner prayed that. 7.M.1 million as counterclaim. 384-A & 387-B-1. 5. 388-A & C. construction works on the access road which raised its level to about a meter and caused serious flooding of the nearby buildings whenever it rained. respectively. more particularly described as follows: A parcel of land (Lot 11 (Existing Road) of the consolidationsubdn. containing of an area of FIVE THOUSAND THREE HUNDRED SIXTY SEVEN (5. 377-B. the writ be made final. alleging that petitioner's right to undertake excavations on the access road was not provided for in the Memorandum of Undertaking. and 389-B-2-C.KNOW ALL MEN THESE PRESENTS: That METROPOLITAN FABRICS. plan (LRC) Pcs-27706. to 7:00 A. INC. 9 and that. 388-B-1. 6. Psd-54827. 8 As counterclaim. to allow [petitioner's] and [its] tenants' delivery trucks and other vehicles access to the same at any time and without undergoing unnecessary searches. and 10:00 P. 4 & 5. the mortgagee of Lots 1. approved as a non-subdn. of Luzon . 377-C-1. Metro Manila. 4. conditioned upon the . 389-B-1 (LRC) Psd-10087. in violation of the terms of the Memorandum of Agreement. That the above-described lot. 1991. on February 14. Quezon City. 11 After the parties had done so. & B. without its consent. as a result. (LRC) Psd-254813. 317703.. in the name of METROPOLITAN FABRICS. to 1:00 P. 2. and that it subjected the vehicles to unnecessary searches. the trial court granted. . 317704. (LRC) Psd-9474. 317702. . Fls-2163-D. (LRC) Psd-18842. 317699. private respondent filed an answer with counterclaim. Pcs-27706 of Transfer Certificates of Title Nos. and to otherwise recognize [petitioner's] right of way over the said lot. DONE this Sep.

00. the trial court issued the writ upon filing of the required bond by petitioner.THE COURT OF APPEALS GROSSLY ERRED WHEN IT APPLIED THE DOCTRINE ENUNCIATED IN RIVAS V.000.THE COURT OF APPEALS GRAVELY ERRED WHEN IT MADE FINDINGS OF FACTS ON THE BASIS OF THE REPRESENTATION AND RECITAL OF FACTS MADE IN THE MFI PETITION AND PROCEEDED TO INTERPRET THE MEMORANDUM OF UNDERTAKING WITHOUT CONSIDERING FACTS AND CIRCUMSTANCES SURROUNDING ITS EXECUTION WHICH WERE YET TO BE ESTABLISHED IN A FULL BLOWN TRIAL.THE COURT OF APPEALS GRAVELY ERRED WHEN IT DECIDED THE MERITS OF THE MAIN CASE IN A CERTIORARI PROCEEDING PRACTICALLY RENDERING ACADEMIC THE HEARING PROPER YET TO BE CONDUCTED BY THE REGIONAL TRIAL COURT. . dated February 14. On November 26. it increased the injunction bond to P2. to allow plaintiff's and its tenant's delivery trucks and other vehicles access to the same at any time and without undergoing unnecessary searches. . The trial court said in part: . . pending the termination of this litigation and/or unless a contrary order is issued by this Court .00.1 million. a right clearly set forth in defendant's memorandum of undertaking of September 18.THE COURT OF APPEALS GRAVELY ERRED WHEN IT EXERCISED CERTIORARI POWERS TO REVERSE AN ERROR OF JUDGMENT COMMITTED BY THE REGIONAL TRIAL COURT. 4. 14 However. . . UPON FINDING THAT THE LOWER COURT "MISUNDERSTOOD" THE RIGHT OF HEREIN PETITIONER PROSPERITY OVER THE ROAD LOT IN QUESTION. SEC (190 SCRA 295) DESPITE THE DIVERSITY IN FACTUAL SETTING OF THE INSTANT CASE VIS-A-VIS THAT OBTAINING IN THE CITED CASE.filing by petitioner of a bond in the amount of P500. meaningless redundancy . ACCORDINGLY. 1994. . 1987. . 2. 16 Its motion for reconsideration having been denied on February 28. . 1994. .000. LLjur 3. let corresponding preliminary mandatory injunction writ be issued directing defendant to allow plaintiff to proceed with its MWSS installation project over the road lot in question. 1992. no cogent reason appears to warrant treating the terms "for whatever kind of passage" contained therein as nothing more than a useless. [T]he court finds that to deny plaintiff's application for a preliminary mandatory injunction writ would be to disregard its right of way in respect of the road lot in question. 1992 and March 2. 15 Private respondent filed a petition for certiorari and prohibition with the Court of Appeals to annul the aforesaid orders. the appellate court granted the petition and set aside the questioned orders after finding that the trial court had acted with grave abuse of discretion in issuing them. 12 On March 2. indeed. petitioner filed the present petition for review on certiorari alleging that: 17 1. of the trial court. 1992. . plaintiff's subject application is hereby granted and the Court hereby directs that upon the filing and approval of the corresponding injunction bond in the sum of P500. and to otherwise recognize plaintiff's right of way over the said road lot. 13 Private respondent filed a motion for reconsideration of the orders granting injunction which the trial court denied.

Until such time. and (3) that there is an urgent and permanent necessity for the writ to prevent serious damage. Court of Appeals. as defined in Webster's Dictionary. (2) that his right has been violated and the invasion is material and substantial. 11. — For the proper construction of an instrument. Indeed. not by this Court. The ordinary meaning of the word. 18 to justify the issuance of the writ of preliminary mandatory injunction the following must be shown: (1) that the complainant has a clear legal right. transit. Petitioner cannot circumvent the process by asking this Court to determine the facts surrounding the execution of their agreement. The recourse petitioner proposes must await the presentation of the parties' evidence during trial and the determination of their intention must be made by the trial court. for us to undertake such inquiry would be to expand the scope of the present review and intrude into the domain of the trial court. The word "passage" does not. 23 It cites Rule 130 §11 24 of the 1964 Rules of Court. petitioner cannot claim to have a "clear and unmistakable" right justifying the issuance of a writ of preliminary mandatory injunction in this case. Petitioner contends that resort should be made to facts surrounding the execution of the Memorandum of Undertaking which. will remain open to ingress and egress for whatever kind of passage in favor of PROSPERITY FINANCIAL RESOURCES.Interpretation according to circumstances. is actually a rule for . shows the intention of the parties to give petitioner the right to install water pipes along the side of the access road. according to it. petitioner anchors its alleged right to the preliminary mandatory injunction on the Memorandum of Undertaking." The trial court read this phrase to mean that petitioner had the right to make excavations on the side of the access road in order to install a network of water pipes. which provides: SEC. INC. the Regional Trial Court gravely abused its discretion. may be shown. Thus. unlike an ordinary preliminary injunction." They give petitioner the right to use the private road as a means of entry into and exit from its property on the northwestern side of the compound. dated September 18. That is precisely what we are saying. the circumstances under which it was made. It means. which petitioner invokes. being an existing private road. the writ of preliminary mandatory injunction requires the performance of a particular act or acts 19 and thus tends to do more than maintain the status quo. the trial court should have observed caution and denied petitioner's application for the preliminary writ. including the situation of the subject thereof and of the parties to it. is that it is "the act or action of passing: movement or transference from one place or point to another. As held in Pelejo v. Petitioner will have ample opportunity to substantiate its allegations on this point during the trial of the case. "clearly and unmistakably" convey a meaning that includes a right to install water pipes on the access road. 20 In the case at bar." 21 Its legal meaning is not different. according to Black's Law Dictionary. however." 22 To achieve a meaning such as that which petitioner proposes requires the consideration of evidence showing the parties' intention in using the word which can only be done during trial on the merits. the "act of passing.The assignment of errors raises a single question: whether. 1987. transition. The question concerns the meaning of the phrase "for whatever kind of passage. Rule 130 §11. which provides that: [T]he above-described lot. The right of the complainant must be clear and unmistakable because. or its successors-in-interest. in issuing a writ of preliminary mandatory injunction ordering private respondent to allow petitioner to undertake excavations along the access road for the purpose of installing water pipes. There is no question as to the meaning of the terms "ingress" and "egress. so that the judge may be placed in the position of those whose language he is to interpret.

cdasia SO ORDERED. suffice it to say that the lower court acted with grave abuse of discretion in issuing the writ of preliminary mandatory injunction despite the doubt on petitioner's right to it. dated November 26. and its resolution. It does not apply to preliminary proceedings concerning the issuance of ancillary remedies. WHEREFORE. are hereby AFFIRMED. . the decision of the Court of Appeals. 1993. 1994.interpretation of documentary evidence formally offered at the trial. dated February 28. Anent petitioner's contention that the writ of certiorari does not lie because the error sought to be corrected is an error of judgment.

.CIVIL LAW. The settled rule is that the needs of the dominant estate determine the width of the easement. — [T]he small house occupying one meter of the two-meter wide easement obstructs the entry of private respondents' cement mixer and motor vehicle. constituted for public use or for private interest. LEGAL EASEMENT BINDING EVEN IF NOT ANNOTATED IN THE TITLE AND NOTICE OF LIS PENDENS OF CASE ENFORCING THE SAME NOT RECORDED. 130845. — Petitioner's . — [A] legal easement is one mandated by law. LEGAL EASEMENT. The Law Firm of Chan Robles & Associates for petitioner. 3. SEBASTIAN and SHIRLEY LORILLA. TIRSO D.. KINDS. occupying one meter of the two-meter wide easement of right of way the Gabriel spouses granted to the Espinolas. respondents. as provided for in said Article 617 of the Civil Code. Rodriguez for private respondents. where the distance from the dominant estate to a public highway may be the shortest.. THE NEEDS OF THE DOMINANT ESTATE DETERMINE THE WIDTH OF THE EASEMENT.. Pedro I. ID. Hence.[G. November 27. ELUCIDATED. the servient estate is bound to provide the dominant estate ingress from and egress to the public highway. HON. vs. (2) proper indemnity. and becomes a continuing property right.R. Conformably then. 2000. there was a small house on the southeastern portion. VELASCO in his capacity as Presiding Judge of the Regional Trial Court of Quezon City. ID.. Further. even before he bought the land. ID. The easement in the case at bar is both voluntary and legal easement.. One meter is insufficient for the needs of private respondents. As a compulsory easement.ID. petitioner. and (5) to the extent consistent with the foregoing rule. DAESTI 2. the decision enforcing the right of easement against the previous owner. VILLANUEVA.C. there was already a final and executory decision enforcing the right to easement where the small house encroaching the same was ordered demolished by Judge Velasco. it is inseparable from the estate to which it belongs. It is well-settled that the needs of the dominant estate determine the width of the easement. SYNOPSIS Petitioner Villanueva is the registered owner of a parcel of land previously owned by spouses Gabriel. JULIO N. PROPERTY. SYLLABUS 1. petitioner ought to demolish the small house on the easement obstructing the entry of private respondents' cement mixer and motor vehicle. has been paid. predecessors-in-interest of private respondent. Branch 88.ID. is conclusive and binding upon the successor-in-interest. ID. And even if the easement was not annotated in the title of the land and the notice of lis pendens was not recorded with the Register of Deeds.] BRYAN U. (4) the right of way claimed is at a point least prejudicial to the servient estate. petitioner ought to demolish whatever edifice obstructs the easement in view of the needs of private respondents' estate. in legal easement. EASEMENTS. Unknown to Villanueva. The essential requisites for an easement to be compulsory are: (1) the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway. (3) the isolation was not due to acts of the proprietor of the dominant estate. No. When Villanueva bought the land.

that he is not bound by the contract of easement because the same was not annotated in the title and that a notice of lis pendens of the complaint to enforce the easement was not recorded with the Register of Deeds. the mortgagee of said property. states: . Q-91-8703 on May 8. in order to have an access to and from their aforementioned land where their houses are constructed and to have an outlet to Tandang Sora Ave. [A] decision in a case is conclusive and binding upon the parties to said case and those who are their successor in interest by title after said case has been commenced or filed in court.second proposition. he is a successor-in-interest by title subsequent to the commencement of the action in court. in view of the fact that the property of the ESPINOLA had been bought by them from MAXIMO CAPUNO. DECISION QUISUMBING. is also without merit [in view of] Rule 39. It occupied one meter of the two-meter wide easement of right of way the Gabriel spouses granted to the Espinolas. 1996 of the Court of Appeals in CA-G. private respondents. When petitioner bought the parcel of land there was a small house on its southeastern portion. xxx xxx xxx WHEREFORE. . and (2) the resolution 2 dated August 14. dismissing petitioner's petition for review under Rule 65 with prayer for the issuance of a cease and desist order and/or temporary restraining order. 1997 denying the subsequent motion for reconsideration. father of MAXIMO . . SP No. against the original owners. . He bought it from Pacific Banking Corporation. The pertinent portion of the contract dated November 28. 4. in a Contract of Easement of Right of Way. . although not a party to the suit. CIVIL PROCEDURE. 47. predecessors-in-interest of private respondents. the decision in Civil Case No. it is in the nature of legal easement that the servient estate (of petitioner) is legally bound to provide the dominant estate (of private respondents in this case) ingress from and egress to the public highway. . Civil Case No. of the Revised Rules of Court. RODOLFO. J p: This petition for certiorari assails (1) the decision 1 dated December 27. which is the nearest public road and the least burdensome to the servient estate and to third persons. Petitioner Bryan Villanueva is the registered owner of the parcel of land covered by Transfer Certificate of Title No. 1995. it would be necessary for them to pass through spouses MAXIMO GABRIEL and JUSTINA CAPUNO's land and for this purpose. after he bought the property from the bank which had acquired it from the Gabriels. is obviously unmeritorious . . EFFECT OF JUDGMENTS. 1979. 127862 of the Register of Deeds of Quezon City. NENITA and AURORA ESPINOLA and for all their needs in entering their property. initiated. Hence. .1991.REMEDIAL LAW. . . Q-91-8703 binds petitioner.R. 1983. Q-91-8703 and that he had not been given his day: in court. a path or passageway of not less than two (2) meters wide of said spouses' property is necessary for the use of ROMEO. DECISION IN A CASE BINDING TO THE PARTIES AND SUCCESSOR-IN-INTEREST AFTER CASE COMMENCED. . . Sec. Title in the name of petitioner was entered in the Register of Deeds on March 24. . The bank had acquired it from the spouses Maximo and Justina Gabriel at a public auction on March 19. — Petitioner's last argument that he was not a party to Civil Case No. 39166. In this case. For.

Petitioner was also unaware that private respondents. 1995 were denied on October 19. The Court of Appeals dismissed the petition for lack of merit and denied the reconsideration. the Eighth Division of the Court of Appeals dismissed the petition and upheld the RTC's issuances. 1991. 1995. filed a petition for certiorari before the Court of Appeals. the instant petition is hereby dismissed by this court for lack of merit. (1)THAT FOLLOWING THE ESSENCE OF INHERENCE AND INTRANSMISSIBILITY OF AN EASEMENT. On August 13. No costs considering the failure of private respondents to file their comment. NENITA and AURORA ESPINOLA and their families to have a permanent easement of right of way over the aforementioned property of said spouses limited to not more than two meters wide. 8 Hence. the trial court issued a temporary restraining order. Q-91-8703. the Gabriels filed a motion for reconsideration which was also denied. 1992. Judge Tirso Velasco of the RTC in Quezon City. had filed on May 8. 1995. 1991. they filed a petition for certiorari before the Court of Appeals. throughout the whole length of the southeast side of said property and as specifically indicated in the attached plan which is made an integral part of this Contract as Annex "A". The decision became final and executory on July 31. SP No. successors. 1995. A RIGHT OF WAY CAN EXIST . 1992. Q-91-8703. Sebastian and Lorilla wanted to enforce the contract of easement. it issued a writ of preliminary mandatory injunction ordering the Gabriels to provide the right of way and to demolish the small house encroaching on the easement. 1995. 4 As successors-in-interest. spouses MAXIMO GABRIEL and JUSTINA CAPUNO hereby agree and permit RODOLFO. Thus. On March 26. ROMEO. hence the contract of easement executed by the Gabriels in favor of the Espinolas could not be enforced against him.R. thereafter. Civil Case No. 39166. even before he bought the land. assigns. 3 Unknown to petitioner. without prejudice in cases of sale of subject property that will warrant the circumstances. asserting that the existence of the easement of right of way was not annotated in his title and that he was not a party to Civil Case No. docketed as CAG. On August 15. Branch 88. His Third Party Claim with prayer to quash the writ of demolition was denied for lack of merit on August 16.GABRIEL. On June 20. 6 The motion for reconsideration as well as the Supplemental Motion for Reconsideration dated September 12. 7 Petitioner. despite notice. This Agreement shall be binding between the parties and upon their heirs. issued an Alias Writ of Demolition. for easement. 1991. Petitioner now avers that the appellate court erred in declaring. Julio Sebastian and Shirley Lorilla. 5 On January 5. the Gabriels had constructed the aforementioned small house that encroached upon the two-meter easement. this instant petition. On May 15. 1991. the sheriff tried to demolish the small house pursuant to the writ. disposing thus: WHEREFORE. He maintains that the writ of demolition could not apply to his property since he was not a party to the civil case. damages and with prayer for a writ of preliminary injunction and/or restraining order against the spouses Gabriel. Petitioner filed a Third Party Claim with Prayer to Quash Alias Writ of Demolition.

HE CANNOT BE BOUND BY ANY JUDGMENT OR ORDER RENDERED THEREIN. unless a notice of lis pendens of such action is filed and registered in the registry office where the land is recorded. 10 the same is extinguished when the servient estate is registered and the easement was not annotated in said title conformably with Section 39 of the Land Registration Law. Lastly. According to him.EVEN IF THEY ARE NOT EXPRESSLY STATED OR ANNOTATED ON THE TORRENS TITLE. Villanueva was bound by the contract of easement. as it is well-settled that a person dealing with registered land is not required to go beyond what is recorded in the title. for their part. he says that a right of way cannot exist when it is not expressly stated or annotated on the Torrens title. even if an easement is inherent and inseparable from the estate to which it actively belongs as provided in Art. He adds that it is private respondents who should have made sure their right of way was safeguarded by having the same annotated on the title with the Register of Deeds. it is inseparable from the estate to which it belongs. He adds that Section 76 of P. we note that the subject easement (right of way) originally was voluntarily constituted by agreement between the Gabriels and the Espinolas. petitioner points out that the trial court erred when it faulted him for relying solely on the clean title of the property he bought. and continues to exists unless its removal is provided for in a title of conveyance or the sign of the easement is removed before the execution of the conveyance conformably with Article 649 12 in accordance with Article 617 13 of the Civil Code. (2)THAT PETITIONER. A legal easement is one mandated by law. 9 Primarily.D. Petitioner argues it could not be enforced against him. But as correctly observed by the Court of Appeals. and (2) an easement by necessity or a legal easement. The essential requisites for an . a servitude like a right of way can exist even if they are not expressly stated or annotated as an encumbrance in a Torrens title because servitudes are inseparable from the estates to which they actively or passively belong. citing the decision of the lower court. since he was not a party to Civil Case No. Second. according to petitioner. constituted for public use or for private interest. (3)THAT IN AS MUCH AS THE HEREIN PETITIONER IS NOT A PARTY TO CIVIL CASE NO.00 in damages. A legal easement is mandated by law. Q-91-8703. 14 As a compulsory easement. 617 of the Civil Code. At the outset. not only as a voluntary easement but as a legal easement. In its decision the appellate court. First. adopted the disquisition of the appellate court as their Comment and asked for the dismissal of the petition and P100. SHOULD HAVE EXERCISED ORDINARY PRUDENCE BY TAKING THE INITIATIVE TO DETERMINE THAT AN EASEMENT HAS BEEN CONSTITUTED ON THE PROPERTY HE INTENDS TO BUY.000. Q-91-8703. stressed that unlike other types of encumbrance of real property. any decision on it will only be effectual between or among the parties thereto. Moreover. the easement in the instant petition is both (1) an easement by grant or a voluntary easement. petitioner argues that he cannot be bound by the writ of demolition and be forcibly divested of a portion of his land without having his day in court. STcADa Private respondents Sebastian and Lorilla. 1529 11 also requires that when a case is commenced involving any right to registered land under the Land Registration Law (now the Property Registration Decree). AND. as provided for in said Article 617 of the Civil Code. AS PROSPECTIVE BUYER. No. There was no such annotation in the title of the disputed land. the issue is whether the easement on the property binds petitioner. and becomes a continuing property right.

easement to be compulsory are: (1) the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity has been paid; (3) the isolation was not due to acts of the proprietor of the dominant estate; (4) the right of way claimed is at a point least prejudicial to the servient estate; and (5) to the extent consistent with the foregoing rule, where the distance from the dominant estate to a public highway may be the shortest. 15 The trial court and the Court of Appeals have declared the existence of said easement (right of way). This finding of fact of both courts below is conclusive on this Court, 16 hence we see no need to further review, but only to re-affirm, this finding. The small house occupying one meter of the two-meter wide easement obstructs the entry of private respondents' cement mixer and motor vehicle. One meter is insufficient for the needs of private respondents. It is well-settled that the needs of the dominant estate determine the width of the easement. 17 Conformably then, petitioner ought to demolish whatever edifice obstructs the easement in view of the needs of private respondents' estate. Petitioner's second proposition, that he is not bound by the contract of easement because the same was not annotated in the title and that a notice of lis pendens of the complaint to enforce the easement was not recorded with the Register of Deeds, is obviously unmeritorious. As already explained, it is in the nature of legal easement that the servient estate (of petitioner) is legally bound to provide the dominant estate (of private respondents in this case) ingress from and egress to the public highway. Petitioner's last argument that he was not a party to Civil Case No. Q-91-8703 and that he had not been given his day in court, is also without merit. Rule 39, Sec. 47, of the Revised Rules of Court: SECTION 47.Effect of judgments or final orders. — The effect of a judgment or final order rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may be as follows: (a)In case of a judgment or final order against a specific thing, or in respect to the probate of a will, or the administration of the estate of a deceased person, or in respect to the personal, political, or legal condition or status of a particular person or his relationship to another, the judgment or final order is conclusive upon the title to the thing, the will or administration, or the condition, status or relationship of the person; however, the probate of a will or granting of letters of administration shall only be prima facie evidence of the death of the testator or intestate; (b)In other cases, the judgment or final order is, with respect to the matter directly adjudged or as to any other matter that could have been raised in relation thereto, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing and under the same title and in the same capacity; and (c)In any other litigation between the same parties or their successorsin-interest, that only is deemed to have been adjudged in a former judgment or final order which appears upon its face to have been so adjudged, or which was actually and necessarily included therein or necessary thereto. (Italics supplied). Simply stated, a decision in a case is conclusive and binding upon the parties to said case and those who are their successor-in-interest by title after said case has been commenced or filed in

court. 18 In this case, private respondents, Julio Sebastian and Shirley Lorilla, initiated Civil Case No. Q-91-8703 on May 8, 1991, 19 against the original owners, the spouses Maximo and Justina Gabriel. Title in the name of petitioner was entered in the Register of Deeds 20 on March 24, 1995, after he bought the property from the bank which had acquired it from the Gabriels. Hence, the decision in Civil Case No. Q-91-8703 binds petitioner. For, although not a party to the suit, he is a successor-in-interest by title subsequent to the commencement of the action in court. WHEREFORE, the instant petition is DENIED. The assailed decision and resolution of the Court of Appeals are AFFIRMED. Costs against petitioner. SO ORDERED.

[G.R. No. 114348. September 20, 2000.] NATIONAL IRRIGATION ADMINISTRATION, petitioner, vs. COURT OF APPEALS and DICK MANGLAPUS, respondents.

The Solicitor General for petitioner. Atty. Simeon T. Agustin for private respondent. SYNOPSIS A free patent over three (3) hectares of land, situated in barrio Baybayog, Municipality of Alcala, Province of Cagayan, was issued in the name of respondent's predecessor-in-interest Vicente Manglapus. The land grant provided, among others, a condition that the land shall be subject to all conditions and public easements and servitudes recognized and prescribed by law especially those mentioned in Sections 109, 110, 111, 112, 113 and 114 of Commonwealth Act No. 141, as amended. Subsequently, respondent Manglapus acquired the lot from Vicente Manglapus by absolute sale. Sometime in 1982, the NIA entered into a contract with Villamar Development Construction. Under the contract, the NIA was to construct canals in Amulung, Cagayan and Alcala, Cagayan. The NIA then entered a portion of Manglapus' land and made diggings and fillings thereon. Manglapus filed with the Regional Trial Court, Tuguegarao, Cagayan a complaint for damages against the NIA. Manglapus alleged that the NIA's diggings and fillings destroyed the agricultural use of his land and that no reasonable compensation was paid for its taking. The trial court rendered a decision in favor of Manglapus ordering the defendant to pay plaintiff the sum of One Hundred Fifty Thousand Six Hundred Pesos (P150,600.00) and Fifty Thousand (P50,000.00) Pesos as compensatory damages. On appeal, the Court of Appeals affirmed in toto the decision of the trial court. Hence, the present petition by the NIA. The Supreme Court granted the petition and set aside the decision of the trial court awarding Manglapus just compensation. According to the Court, the Transfer Certificate of Title and the Original Certificate of Title covering the subject parcel of land contained a reservation granting the government a right of way over the land covered therein. The transfer certificate of title, on which both the trial court and Court of Appeals relied, contained such a reservation, and said reservation, unlike the other provisos imposed on the grant, was not limited by any time period and thus is a subsisting condition. SYLLABUS 1.CIVIL LAW; PROPERTY; EASEMENT OF A RIGHT OF WAY; THE TRANSFER CERTIFICATE OF TITLE OF THE SUBJECT PARCEL OF LAND CONTAINED RESERVATION GRANTING THE GOVERNMENT A RIGHT OF WAY OVER THE LAND COVERED THEREIN. — We agree with NIA that the Transfer Certificate of Title and the Original Certificate of Title covering the subject parcel of land contained a reservation granting the government a right of way over the land covered therein. The transfer certificate of title, on which both the trial court and Court of Appeals relied, contains such a reservation. It states that title to the land shall be: ". . . subject to the provisions of said Land Registration Act and the Public Land Act, as well as those of Mining Laws, if the land is mineral, and subject, further to such conditions contained in the original title as may be subsisting." Under the Original Certificate of Title, there was a reservation and condition that the land is subject to "to all conditions and public easements and servitudes recognized and prescribed by law especially those mentioned in Sections 109, 110, 111, 112, 113 and 114, Commonwealth Act No. 141, as amended." This reservation, unlike the other provisos

a free patent over three (3) hectares of land. The former are called legal and the latter voluntary easements. with the appurtenances thereunto of right belonging unto the said VICENTE MANGLAPUS and to his heirs and assigns forever. aqueducts. railroads. with damages for the improvements only. the annotation on the transfer certificate of title imposed on Manglapus the duty to refer to the conditions annotated on the back of the original certificate of title. ID. TAIEcS 2.000. 122 and 124 of Commonwealth Act.000. — Article 619 of the Civil Code provides that. 121. Manglapus has therefore no cause to complain. First. just compensation must be paid for the taking of a part thereof for public use as an easement of a right of way. The law cannot protect him." We note that the canal NIA constructed was only eleven (11) meters in width. five thousand pesos (P5. including mining or forest concessionaires may reasonably require for carrying on their business. "Easements are established either by law or by the will of the owners. he did not do. Commonwealth Act No. irrigation ditches.ID. province of Cagayan was issued in the name of respondent's predecessorin-interest. the vendee must see the transfer certificate of title and rely upon the same. and awarded to respondent Manglapus by free patent. as compensatory damages. units. municipality of Alcala. Vicente Manglapus. the relevant facts. and similar works as the Government or any public or quasi-public service or enterprises. Here. subject to the provisions of Sections 113.600. and registered under Original Certificate of Title No. in which case. as attorney's fees.. On June 28.00). provides that lands granted by patent. Under the Torrens system. telegraphs and telephone lines. as litigation expenses and costs.00). for one to be a buyer in good faith and for value. and ordering petitioner National Irrigation Administration (hereinafter referred to as "NIA") to pay Manglapus one hundred fifty thousand six hundred pesos (P150. The land was granted to Vicente Manglapus. 1963. Cagayan 3 ruling in favor of private respondent Dick Manglapus (hereinafter referred to as "Manglapus"). No. This is well within the limit provided by law.00). and two thousand pesos (P2. we find and declare that a legal easement of a right-of-way exists in favor of the government. Neither can Manglapus argue that he was a transferee or buyer in good faith. situated in barrio Baybayog. This.. DECISION PARDO. J p: This case is an appeal 1 from the decision of the Court of Appeals 2 affirming in toto the decision of the Regional Trial Court. 4 subject to the following proviso expressly stated in the title: 5 "TO HAVE AND TO HOLD the said tract of land. "shall further be subject to a right of way not exceeding twenty meters in width for public highways. LEGAL EASEMENT OF RIGHT OF WAY EXISTS IN FAVOR OF THE GOVERNMENT IN CASE AT BAR. 141. Branch 04. ID. was not limited by any time period and thus is a subsisting condition. the land hereby acquired shall be inalienable and shall not be subject to encumbrance for a period of five (5) years from . The ruling would be otherwise if the land were originally private property. 141. in his name. or institutions. and fifty thousand pesos (P50. Tuguegarao. Section 112.." In the present case. Manglapus is a transferee with notice of the liens annotated in the title.00). The land was originally public land. as amended which provide that except in favor of the Government or any of its branches.imposed on the grant. P-24814.000.

as amended. Tuguegarao. Pls-497. On July 18. and the right of the Government to administer and protect the timber found thereon for a term of five (5) years from the date of this patent. 141 as amended." ACDTcE Subsequently. and Tax Declaration No. NIA was to construct canals in Amulung." Sometime in 1982. 8 The portion of Manglapus' land entered into by NIA is described as follows: 9 "In a sketch prepared by NIA's employee labeled as NIA canal "Lateral "D". Cagayan. 111. 10 Manglapus alleged that NIA's diggings and fillings destroyed the agricultural use of his land and that no reasonable compensation was paid for its taking. 14 On December 23. the trial court declared NIA in default and received Manglapus' evidence ex parte. Cagayan and Alcala. and covered by TRANSFER CERTIFICATE OF TITLE NO. with an area of 7. 1991. or transferred to any person. T-26658.438 square meters. that the grantee or heirs may cut and utilize such timber for his or their personal use (emphasis ours). and shall not be liable for the satisfaction of any debt contracted prior to the expiration of that period. NIA then entered a portion of Manglapus' land and made diggings and fillings thereon. that it shall not be encumbered. 6 The land is particularly described as follows: 7 "Lot No. however. T-26658 of the Register of Deeds for the Province of Cagayan.the date of this patent. 113 and 114 of Commonwealth Act No. 3559. 141. association or partnership except with the consent of the grantee and the approval of the Secretary of Agriculture and Natural Resources and solely for educational. the land was registered in Dick Manglapus' name under Transfer Certificate of Title No. with an area of 30. alienated." On March 14. 12 NIA did not appear at the pre-trial conference. and in consideration of the foregoing. NIA entered into a contract with Villamar Development Construction. thus: 15 "WHEREFORE. and that it shall not be subject to any encumbrance whatsoever in favor of any corporation. Cagayan a complaint for damages against NIA. Manglapus filed with the Regional Trial Court. the trial court rendered a decision in favor of Manglapus. and subject finally to all conditions and public easements and servitudes recognized and prescribed by law especially those mentioned in Sections 109. Under the contract. respondent Manglapus acquired the lot from Vicente Manglapus by absolute sale. 1991. 1991.880 square meters. 13 On December 3. provided. Pls-497. religious or charitable purposes or for a right of way. 112. corporation. the Court finds preponderance of evidence in favor of the plaintiff and against the defendant: . 11985. which is a portion of Lot 3559. association or partnership not qualified to acquire lands of the public domain under said Commonwealth Act No. 110. 1974. 11 Despite service of notice of the pre-trial conference.

the motion for execution was "moot and academic. 1994." 22 On March 8. 1992. the NIA through the Solicitor General filed an opposition to the motion for execution. 1991." On January 27. this appeal. as well as those of Mining Laws.000. NIA filed a motion to lift the order of default dated December 3.000." Hence. "SO ORDERED. and "3)To pay the cost of the suit.00) as litigation expenses. 21 On August 17. if the land is mineral. the trial court gave due course to the appeal and ordered the transmission of the original records to the Court of Appeals. We find that NIA is under no such obligation. 16 On June 3. "2)Ordering the defendant to pay to plaintiff the sum of Five Thousand Pesos (P5.000. 1992. 24 The sole issue is whether the NIA should pay Manglapus just compensation for the taking of a portion of his property for use as easement of a right of way. PREMISES CONSIDERED. We agree with NIA that the Transfer Certificate of Title 25 and the Original Certificate of Title 26 covering the subject parcel of land contained a reservation granting the government a right of way over the land covered therein. the decision appealed from is hereby AFFIRMED in toto and the appeal is hereby DISMISSED. 20 On August 7. It states that title to the land shall be: 28 ". subject to the provisions of said Land Registration Act and the Public Land Act.00) and Fifty Thousand (P50. 1991. further to such conditions contained in the original title as . on which both the trial court and Court of Appeals relied. NIA filed a notice of appeal to the Court of Appeals. We sustain the appeal. and subject. "SO ORDERED. and to set aside the afore-quoted decision of December 23. contains such a reservation. . Manglapus filed a motion for execution of judgment with the trial court. 1992.00) as attorney's fees and Two Thousand Pesos (P2. 1992. the dispositive portion of which reads: 23 "WHEREFORE. 18 On July 27. 1992. the trial court issued a resolution denying the motion for lack of merit. 19 On July 30. 1992.600. .00) Pesos as compensatory damages."1)Ordering the defendant to pay plaintiff the sum of One Hundred Fifty Thousand Six Hundred Pesos (P150. the trial court declared that since the notice of appeal of NIA was given due course. the Court of Appeals promulgated its decision. 1992. 27 The transfer certificate of title. 17 On July 17.

31 Manglapus has therefore no cause to complain. including mining or forest concessionaires may reasonably require for carrying on their business. SO ORDERED. 111. for one to be a buyer in good faith and for value. the Court SETS ASIDE the decision of the Regional Trial Court. Manglapus is a transferee with notice of the liens annotated in the title. Commonwealth Act No." We note that the canal NIA constructed was only eleven (11) meters in width. This. Section 112. "Easements are established either by law or by the will of the owners. just compensation must be paid for the taking of a part thereof for public use as an easement of a right of way. with damages for the improvements only (emphasis ours). telegraphs and telephone lines. 4266. The former are called legal and the latter voluntary easements. railroads. in which case. we find and declare that a legal easement of a right-of-way exists in favor of the government. Branch IV. 29 there was a reservation and condition that the land is subject to "to all conditions and public easements and servitudes recognized and prescribed by law especially those mentioned in Sections 109. The law cannot protect him. the vendee must see the transfer certificate of title and rely upon the same. unlike the other provisos 30 imposed on the grant. the annotation on the transfer certificate of title imposed on Manglapus the duty to refer to the conditions annotated on the back of the original certificate of title. The land was originally public land." This reservation. as amended. . aqueducts. provides that lands granted by patent.R. irrigation ditches. 34 WHEREFORE.may be subsisting (emphasis ours). the Court GRANTS the petition for review on certiorari. CV No. 110. he did not do. This is well within the limit provided by law. and DISMISSES the complaint. 113 and 114. Commonwealth Act No. The ruling would be otherwise if the land were originally private property. 32 Neither can Manglapus argue that he was a transferee or buyer in good faith. Tuguegarao. Under the Torrens system. 112. Cagayan in Civil Case No. Article 619 of the Civil Code provides that. 141. IN LIEU THEREOF. 33 Here. and REVERSES the decision of the Court of Appeals in CA-G." AHcaDC Under the Original Certificate of Title. No costs. 141." In the present case. and awarded to respondent Manglapus by free patent. and similar works as the Government or any public or quasi-public service or enterprises. "shall further be subject to a right of way not exceeding twenty meters in width for public highways. One who deals with property registered under the Torrens system is charged with notice of burdens and claims that are annotated on the title. 38835. was not limited by any time period and thus is a subsisting condition.

in whose premises were installed two tanks full of water. is liable to a child of tender years who is injured thereby. Mario sank to the bottom of the tank.R. DOCTRINE NOT APPLICABLE TO SWIMMING POOL OR WATER TANK.000 for the death of their son Mario. 1948. Through the wide gate entrance.'". It applied the doctrine of attractive nuisance. — The attractive nuisance doctrine generally is not applicable to bodies of water. took the view that the petitioner maintained an attractive nuisance (the tanks). the tanks themselves were not provided with any kind of fence or top covers. "was the owner of an iceplant factory in the City of San Pablo.[G.. Antonio M.ATTRACTIVE NUISANCE. entered the factory premises through the gate. It appears that the petitioner Hidalgo Enterprises. only to be fished out later. having died of 'asphyxia secondary to drowning. INC. of American origin. Laguna.. from a decision of the Court of Appeals requiring Hidalgo Enterprises. petitioner. which was continually open. DECISION BENGZON. SYLLABUS 1. and neglected to adopt the necessary precautions to avoid accident to persons entering its premises. ANSELMA ANILA and THE COURT OF APPEALS. 2.ID. Quisumbing. No. already a cadaver. MAINTAINER LIABLE FOR INJURIES CAUSED TO CHILD. and any one could easily enter the said factory. plaintiffs' son. in the absence of some unusual condition or artificial feature other than the mere water and its location. and while thus bathing. motor vehicles hauling ice and persons buying said commodity passed. Mario Balandan. a boy barely 8 years old. as he pleased. artificial as well as natural. 1952.] HIDALGO ENTERPRISES. while playing with and in company of other boys of his age. for cooling purposes of its engine. There was no guard assigned on the gate. Inc. vs. WHAT CONSTITUTES. Inc. June 13. The Court of Appeals. Sycip. — One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play. The edges of the tank were barely a foot high from the surface of the ground. even if the child is technically a trespasser in the premises. While the factory compound was surrounded with fence. to pay Guillermo Balandan and his wife. L-3422. Moncado for respondents. At about noon of April 16. J p: This is an appeal by certiorari. and the Court of First Instance of Laguna. respondents. and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto. nine feet deep. Quisumbing & Salazar for petitioner. recognized in this jurisdiction in Taylor . GUILLERMO BALANDAN. to take a bath in one of said tanks. damages in the sum of P2.

Montana. ditches. and if the owner of private property creates an artificial pool on his own property. Texas. citing decisions of California.. cesspools or sewer pools. ReithRiley Const. .. N. canals. Therefore. 185. The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly explained by the Indiana Appellate Court as follows: "Nature has created streams. 455. J. 476 et seg. . S. Pennsylvania. because they left for Manila on that unlucky day leaving their son under the care of no responsible individual — needs no further discussion. No costs." (65 C. Oklahoma. Louisiana. even if the child is technically a trespasser in the premises..) The principal reason for the doctrine is that the condition or appliance in question although its danger is apparent to those of age. The appealed decision is reversed and the Hidalgo Enterprises. Iowa. .that the parents of the boy were guilty of contributory negligence precluding recovery.. 184. as follows: One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play. p. is so enticing or alluring to children of tender years as to induce them to approach. 185. S. 1949. Lurking in their waters is always the danger of drowning. J. . . p. Against this danger children are early instructed so that they are sufficiently presumed to know the danger. in short. Idaho. . "The attractive nuisance doctrine generally is not applicable to bodies of water. 2nd. is liable to a child of tender years who is injured thereby. E. drains. Co. and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto. Wisconsin. (See 65 C. in the absence of some unusual condition or artificial feature other than the mere water and its location. 8. . App. p.vs. whereas its decision was promulgated on September 30. And the other issue submitted by petitioner . Georgia. J. as petitioner's tanks are not classified as attractive nuisance. Manila Electric 16 Phil. is a swimming pool or water tank an instrumentality or appliance likely to attract little children in play? In other words is the body of water an attractive nuisance? The great majority of American decisions say no. and this attractiveness is an implied invitation to such children (65 C. streams..) In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris Secundum was published in 1950. artificial as well as natural." "There are numerous cases in which the attractive nuisance doctrine has been held not to be applicable to ponds or reservoirs. (he) is not liable because of having created an 'attractive nuisance. Missouri. Tennessee. pools of water. 170. Illinois. 184. 112 Ind. get on or use it. Now. 458).' Anderson vs. . Nebraska. lakes and pools which attract children. Inc. culverts. merely duplicating the work of nature without adding any new danger. The doctrine may be stated. Miss... dams. is absolved from liability.. Kansas. the question whether the petitioner had taken reasonable precautions becomes immaterial. S.