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PRIVATIZATION AND MANAGEMENT OFFICE, Petitioner, v. LEGASPI unnecessary or inappropriate for the government sector to maintain.

" It also
TOWERS 300, INC.,Respondent. provided for the creation of the Asset Privatization Trust (APT).

DECISION By virtue of Administrative Order No. 14 and the Deed of Transfer executed
by PNB, the National Government, thru the APT, became the assignee and
PERALTA, J.: transferee of all its rights and titles to and interests in its receivables with
Caruff, including the properties it acquired from the foreclosure of Caruff's
This is a Petition for Review on Certiorariseeking to annul and set aside the mortgage.
Decision1 dated February 16, 2001, of the Court of Appeals (CA) in CA-G.R.
CV No. 48984, affirming the Decision of the Regional Trial Court (RTC). Meanwhile, Caruff filed a case against PNB before the RTC of Manila,
Branch 2, whereby Caruff sought the nullification of PNB's foreclosure of its
The factual and procedural antecedents are as follows: properties.6 The case was docketed as Civil Case No. 85-29512.

A Compromise Agreement7 dated August 31, 1988 was later entered into by
Caruff Development Corporation owned several parcels of land along the
Caruff, PNB, and the National Government thru APT. The parties agreed,
stretch of Roxas Boulevard, Manila. Among them were contiguous lots
among other things, that Caruff would transfer and convey in favor of the
covered by Transfer Certificate of Title (TCT) Nos. 120311, 120312, 120313,
and 127649 (now TCT No. 200760). National Government, thru the APT, the lot covered by TCT No. 127649 (now
TCT No. 200760), where it built the generating set and sump pumps.
Sometime in December 1975, Caruff obtained a loan from the Philippine
On September 9, 1988, the RTC rendered a Decision approving the
National Bank (PNB) to finance the construction of a 21-storey condominium
Compromise Agreement executed and submitted by the parties. The
along Roxas Boulevard.2 The loan accommodation was secured by a real
estate mortgage over three (3) parcels of land covered by TCT Nos. 120311, dispositive portion of said Decision reads:
120312, and 120313,3 where Caruff planned to erect the condominium.
x x x and finding the foregoing compromise agreement to be well-taken, the
Court hereby approves the same and renders judgment in accordance with
In 1979, Caruff started constructing a multi-storey building on the mortgaged
the terms and conditions set forth [sic] therein and enjoins the parties to
parcels of land. Along with the other appurtenances of the building
constructed by Caruff, it built a powerhouse (generating set) and two sump comply strictly therewith.
pumps in the adjacent lot covered by TCT No. 127649 (now TCT No.
200760). SO ORDERED.8

After the completion of the condominium project, it was constituted pursuant Thus, by virtue of the Decision, the subject property was among those
to the Condominium Act (Republic Act No. 4726), as the Legaspi Towers properties that were conveyed by Caruff to PNB and the National
300, Inc. Government thru APT.

However, for Caruff's failure to pay its loan with PNB, the latter foreclosed On July 5, 1989, respondent filed a case for Declaration of the existence of
the mortgage and acquired some of the properties of Caruff at the sheriff's an easement before the RTC of Manila, docketed as Spec. Proc. No. 89-
auction sale held on January 30, 1985.4 49563. Respondent alleged that the act of Caruff of constructing the
powerhouse and sump pumps on its property constituted a voluntary
easement in favor of the respondent. It prayed, among other things, that
Thereafter, Proclamation No. 505 was issued. It was aimed to promote
judgment be rendered declaring the existence of an easement over the
privatization "for the prompt disposition of the large number of non-
performing assets of the government financial institutions, and certain portion of the property covered by TCT No. 127649 (now TCT No. 200760)
government-owned and controlled corporations, which have been found that was being occupied by the powerhouse and the sump pumps in its favor,

1
and that the Register of Deeds of Manila annotate the easement at the back Hence, the present petition assigning the following errors:
of said certificate of title.9
I
In its Answer with Counterclaim and Cross-claim,10 APT alleged that
respondent had no cause of action against it, because it was but a mere THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN
transferee of the land. It acquired absolute ownership thereof by virtue of the AFFIRMING THE DECISION OF THE COURT A QUO IN FINDING THAT
Compromise Agreement in Civil Case No. 85-2952, free from any liens [THE] PRESENCE OF THE GENERATOR SET (GENERATING SET) AND
and/or encumbrances. It was not a privy to any transaction or agreement SUMP PUMPS CONSTITUES AN EASEMENT.
entered into by and between Caruff, respondent, and the bank. It further
alleged that the continued use of the subject property by respondent and the
II
condominium owners without its consent was an encroachment upon its
rights as absolute owner and for which it should be properly compensated.
THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE COURT A QUO IN DECLARING THE
On January 12, 1995, after trial on the merits, the RTC rendered a
EXISTENCE OF AN EASEMENT OVER THE PORTION OF LAND
Decision11 declaring the existence of an easement over the portion of the
COVERED BY TCT NO. [200760] OCCUPIED BY THE GENERATOR SET
land covered by TCT No. 127649 (TCT No. 200760), the decretal portion of
AND SUMP PUMPS NOS. 1 AND 2, PURSUANT TO ARTICLE 688 OF THE
which reads:
CIVIL CODE.

WHEREFORE, judgment is hereby rendered in favor of the petitioner and


III
against the respondents hereby declaring the existence of an easement over
the portion of land covered by TCT No. 200760 (previously No. 127649)
occupied at present [by the] powerhouse and sump pumps nos. 1 and 2 only, THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN
of Legaspi Towers 300, in favor of Legaspi Towers 300, Incorporated. The AFFIRMING THE DECISION OF THE COURT A QUO IN NOT REQUIRING
Register of Deeds of Manila is, likewise, hereby directed to annotate this THE RESPONDENT-PETITIONER TO PAY ANY COMPENSATION TO
easement at the back of the said certificate of title. The counterclaim and PETITIONER, THE OWNER OF THE LAND, FOR THE USE OF ITS
cross-claim are dismissed accordingly. PROPERTY.14

SO ORDERED. Petitioner argues that the presence of the generator set and sump pumps
does not constitute an easement. They are mere improvements and/or
appurtenances complementing the condominium complex, which has not
Aggrieved, APT sought recourse before the CA in CA-G.R. CV No. 48984.
attained the character of immovability. They were placed on the subject
property as accessories or improvements for the general use and comfort of
Subsequently, the term of existence of APT expired and, pursuant to Section the occupants of the condominium complex.
2, Article III of Executive Order No. 323, the powers, functions, duties and
responsibilities of APT, as well as all the properties, real or personal assets,
Petitioner maintains that, as the generator set and sump pumps are
equipments and records held by it and its obligations and liabilities that were
improvements of the condominium, the same should have been removed
incurred, was transferred to petitioner Privatization and Management Office
after Caruff undertook to deliver the subject property free from any liens and
(PMO). Thus, the PMO substituted APT in its appeal. encumbrances by virtue of the Decision of the RTC in Civil Case No. 85-
29512 approving the parties' Compromise Agreement. It adds that, in
On February 16, 2001, finding no reversible error on the part of the RTC, the alienating the property in favor of APT/PMO, Caruff could not have intended
CA rendered a Decision12affirming the decision appealed from. PMO filed a to include as encumbrance the voluntary easement.
Motion for Reconsideration, but it was denied in the Resolution13 dated May
3, 2001. Petitioner posits that respondent failed to present any evidence to prove the
existence of the necessary requisites for the establishment of an easement.
2
There is no concrete evidence to show that Caruff had a clear and petitioner is not prevented from privatizing the same despite the presence of
unequivocal intention to establish the placing of the generator set and sump the voluntary easement.
pumps on the subject property as an easement in favor of respondent.
The petition is meritorious.
Lastly, petitioner contends that respondent is a "squatter" for having
encroached on the former's property without its consent and without paying An easement or servitude is "a real right constituted on another's property,
any rent or indemnity. Petitioner submits that respondent's presence on the corporeal and immovable, by virtue of which the owner of the same has to
subject property is an encroachment on ownership and, thus, cannot be abstain from doing or to allow somebody else to do something on his
properly considered an easement. It adds that an easement merely produces property for the benefit of another thing or person."15 The statutory basis of
a limitation on ownership, but the general right of ownership of the servient this right is Article 613 of the Civil Code, which provides:
tenement must not be impaired so as to amount to a taking of property.
When the benefit being imposed is so great as to impair usefulness of the
Art. 613. An easement or servitude is an encumbrance imposed upon an
servient estate, it would amount to a cancellation of the rights of the latter. immovable for the benefit of another immovable belonging to a different
owner.
Petitioner insists that, for having unjustly enriched itself at the expense of the
National Government and for encroaching on the latter's rights as the
The immovable in favor of which the easement is established is called the
absolute owner, respondent should rightfully compensate the National
dominant estate; that which is subject thereto, the servient estate.
Government for the use of the subject property which dates back to August
28, 1989 up to the present.rbl r l l lbrr
There are two sources of easements: by law or by the will of the owners.
Article 619 of the Civil Code states:
For its part, respondent argues that it was the intention of Caruff to have a
voluntary easement in the subject property and for it to remain as such even
after the property was subsequently assigned to APT. It was Caruff who Art. 619. Easements are established either by law or by the will of the
constructed the generating set and sump pumps on its adjacent property for owners. The former are called legal and the latter voluntary easements.
the use and benefit of the condominium adjoining it. Also, the manner in
which the sump pumps were installed is permanent in nature, since their In the present case, neither type of easement was constituted over the
removal and transfer to another location would render the same worthless subject property.
and would cut off the supply of electricity and water to the condominium and
its owners. In its allegations, respondent claims that Caruff constituted a voluntary
easement when it constructed the generating set and sump pumps over the
Respondent maintains that petitioner cannot assume that Caruff intended to disputed portion of the subject property for its benefit. However, it should be
renounce the voluntary easement over the subject property by virtue of the noted that when the appurtenances were constructed on the subject
Compromise Agreement, since such defense can only be presented by property, the lands where the condominium was being erected and the
Caruff and not the petitioner. It added that petitioner had actual notice of the subject property where the generating set and sump pumps were
presence of the generating set and sump pumps when they were negotiating constructed belonged to Caruff. Therefore, Article 613 of the Civil Code does
with Caruff regarding the compromise agreement and at the time the subject not apply, since no true easement was constituted or existed, because both
property was transferred to petitioner. Also, petitioner cannot claim the properties were owned by Caruff.
payment of rent, considering that there was no written demand for
respondent to pay rent or indemnity. Also, Article 624 of the Civil Code is controlling, as it contemplates a situation
where there exists an apparent sign of easement between two estates
Respondent submits that the mandate of petitioner to privatize or dispose of established or maintained by the owner of both. The law provides:
the non-performing assets transferred to it does not conflict with the issue of
the declaration of the easement over the subject property, considering that Art. 624. The existence of an apparent sign of easement between two
estates, established or maintained by the owner of both, shall be considered,
3
should either of them be alienated, as a title in order that the easement may Compromise agreements are contracts, whereby the parties undertake
continue actively and passively, unless, at the time the ownership of the two reciprocal obligations to resolve their differences, thus, avoiding litigation, or
estates is divided, the contrary should be provided in the title of conveyance put an end to one already commenced.18 As a contract, when the terms of
of either of them, or the sign aforesaid should be removed before the the agreement are clear and explicit that they do not justify an attempt to
execution of the deed. This provision shall also apply in case of the division read into it any alleged intention of the parties; the terms are to be
of a thing owned in common by two or more persons.16 understood literally, just as they appear on the face of the
contract.19 Considering that Caruff never intended to transfer the subject
From the foregoing, it can be inferred that when the owner of two properties property to PMO, burdened by the generating set and sump pumps,
alienates one of them and an apparent sign of easement exists between the respondent should remove them from the subject property.
two estates, entitlement to it continues, unless there is a contrary agreement,
or the indication that the easement exists is removed before the execution of As regards PMO's claim for rent, respondent has been enjoying the use of
the deed. the subject property for free from the time the rights over the property were
transferred and conveyed by Caruff to the National Government.
In relation thereto, the Compromise Agreement, as approved by the court,
clearly states, among other things, that: We have held that "[t]here is unjust enrichment when a person unjustly
retains a benefit to the loss of another, or when a person retains money or
xxx property of another against the fundamental principles of justice, equity and
good conscience." Article 22 of the Civil Code provides that "[e]very person
2.0 That in consideration of the covenants hereunder stipulated, plaintiff who, through an act or performance by another, or any other means,
acquires or comes into possession of something at the expense of the latter,
[Caruff] Development Corporation (CDC), hereby terminates the instant case
without just or legal ground, shall return the same to him." The principle of
against defendants Philippine National Bank (PNB) and the National
unjust enrichment under Article 22 of the Civil Code requires two conditions:
Government/APT, and hereby:
(1) that a person is benefited without a valid basis or justification, and (2) that
such benefit is derived at another's expense or damage.20
2.1 Assigns, transfers and conveys in favor of defendant National
government thru APT, CDC's rights, title and interest in the Maytubig
In the present case, there is no dispute as to who owns the subject property
property, situated at the back of the Legaspi Towers 300 Condominium,
and as to the fact that the National Government has been deprived of the use
consisting of seven (7) contiguous lots with an aggregate area of 1,504.90
square meters, covered by the following Transfer Certificate of Title, viz: TCT thereof for almost two decades. Thus, it is but just and proper that
No. 23663 - Pasay City Registry; TCT No. 142497 - Metro Manila 1 Registry; respondent should pay reasonable rent for the portion of the subject property
occupied by the generating set and sump pumps, from the time respondent
TCT No. 142141 - Metro Manila 1 Registry; TCT No. 127649 - Metro Manila
deprived the lawful owner of the use thereof up to the present. To rule
1 Registry; x x x; all titles, free from any and all liens and encumbrances, to
otherwise would be unjust enrichment on the part of respondent at the
be delivered, and the necessary papers and documents to be turned
expense of the Government.
over/executed to effect transfer in favor of the National Government/APT,
upon approval of this Compromise Agreement;
From the records, APT/PMO submitted, as part of its evidence, a
letter21 dated June 18, 1992, wherein it fixed the monthly rental fee per
xxx x.17
square meter of the entire property at P56.25, or P1.81 per square meter per
day. Hence, respondent should pay the National Government reasonable
Thus, when the subject property was assigned to the National Government rent in the amount of P56.25 per square meter per month, to be reckoned
thru the APT, no easement arose or was voluntarily created from the transfer from August 28, 1989 up to the time when the generating set and sump
of ownership, considering that the parties, more particularly, Caruff, pledged pumps are completely removed therefrom.
that it was assigning, transferring, and conveying the subject property in
favor of the National Government thru the APT "free from any and all liens
WHEREFORE, premises considered, the Decision of the Regional Trial
and encumbrances."
Court in Spec. Proc. No. 89-49563 dated January 12, 1995, and the Decision
4
and Resolution of the Court of Appeals in CA-G.R. CV No. 48984 dated Maruhom, Bucay G. Maruhom, Mamod G. Maruhom, Farouk G. Maruhom,
February 16, 2001 and May 3, 2001, respectively, are REVERSED and SET Hidjara G. Maruhom, Rocania G. Maruhom, Potrisam G. Maruhom, Lumba
ASIDE. G. Maruhom, Sinab G. Maruhom, Acmad G. Maruhom, Solayman G.
Maruhom, Mohamad M. Ibrahim and Caironesa M. Ibrahim, instituted an
Legaspi Towers 300, Inc. is DIRECTED to REMOVE the generating set and action against petitioner National Power Corporation (NAPOCOR) for
sump pumps 1 and 2 from the property covered by TCT No. 200760 and recovery of possession of land and damages before the Regional Trial Court
to PAY reasonable rent at the rate of P56.25 per square meter/per month (RTC) of Lanao del Sur.
from August 28, 1989 until the same are completely removed.
In their complaint, Ibrahim and his co-heirs claimed that they were
SO ORDERED. owners of several parcels of land described in Survey Plan FP (VII-5) 2278
consisting of 70,000 square meters, divided into three (3) lots, i.e. Lots 1, 2,
and 3 consisting of 31,894, 14,915, and 23,191 square meters each
NATIONAL POWER G.R. No. 168732 respectively. Sometime in 1978, NAPOCOR, through alleged stealth and
CORPORATION, without respondents knowledge and prior consent, took possession of the
Petitioner, sub-terrain area of their lands and constructed therein underground tunnels.
Present: The existence of the tunnels was only discovered sometime in July 1992 by
-versus- respondents and then later confirmed on November 13, 1992 by NAPOCOR
itself through a memorandum issued by the latters Acting Assistant Project
LUCMAN G. IBRAHIM, OMAR PUNO, C.J., Chairperson, Manager. The tunnels were apparently being used by NAPOCOR in
G. MARUHOM, ELIAS G. SANDOVAL-GUTIERREZ,* siphoning the water of Lake Lanao and in the operation of NAPOCORs Agus
MARUHOM, BUCAY G. CORONA, II, III, IV, V, VI, VII projects located in Saguiran, Lanao del Sur; Nangca and
MARUHOM, FAROUK G. AZCUNA, and Balo-i in Lanao del Norte; and Ditucalan and Fuentes in IliganCity.
MARUHOM, HIDJARA G. GARCIA, JJ.
MARUHOM, ROCANIA G. On September 19, 1992, respondent Omar G. Maruhom requested
MARUHOM, POTRISAM G. the Marawi City Water District for a permit to construct and/or install a
MARUHOM, LUMBA G. Promulgated: motorized deep well in Lot 3 located in Saduc, Marawi City but his request
MARUHOM, SINAB G. was turned down because the construction of the deep well would cause
MARUHOM, ACMAD G. danger to lives and property. On October 7, 1992, respondents demanded
MARUHOM, SOLAYMAN G. June 29, 2007 that NAPOCOR pay damages and vacate the sub-terrain portion of their
MARUHOM, MOHAMAD M. lands but the latter refused to vacate much less pay damages. Respondents
IBRAHIM, and CAIRONESA M. further averred that the construction of the underground tunnels has
IBRAHIM, endangered their lives and properties as Marawi City lies in an area of local
Respondents. volcanic and tectonic activity. Further, these illegally constructed tunnels
X----------------------------------------------------------------------------------------X caused them sleepless nights, serious anxiety and shock thereby entitling
DECISION them to recover moral damages and that by way of example for the public
good, NAPOCOR must be held liable for exemplary damages.
AZCUNA, J.: Disputing respondents claim, NAPOCOR filed an answer with counterclaim
denying the material allegations of the complaint and interposing affirmative
This is a petition for review on certiorari under Rule 45 of the Rules and special defenses, namely that (1) there is a failure to state a cause of
of Court seeking to annul the Decision[1] dated June 8, 2005 rendered by the action since respondents seek possession of the sub-terrain portion when
Court of Appeals (CA) in C.A.-G.R. CV No. 57792. they were never in possession of the same, (2) respondents have no cause
The facts are as follows: of action because they failed to show proof that they were the owners of the
property, and (3) the tunnels are a government project for the benefit of all
On November 23, 1994, respondent Lucman G. Ibrahim, in his and all private lands are subject to such easement as may be necessary for
personal capacity and in behalf of his co-heirs Omar G. Maruhom, Elias G. the same.[2]
5
On August 7, 1996, the RTC rendered a Decision, the decretal portion of On August 28, 1996, the RTC issued an Order granting execution
which reads as follows: pending appeal and denying NAPOCORs motion for reconsideration, which
Order was received by NAPOCOR on September 6, 1996.
WHEREFORE, judgment is hereby rendered:
On September 9, 1996, NAPOCOR filed its Notice of Appeal by
1. Denying plaintiffs [private respondents] registered mail which was denied by the RTC on the ground of having been
prayer for defendant [petitioner] National Power Corporation filed out of time. Meanwhile, the Decision of the RTC was executed pending
to dismantle the underground tunnels constructed between appeal and funds of NAPOCOR were garnished by respondents Ibrahim and
the lands of plaintiffs in Lots 1, 2, and 3 of Survey Plan FP his co-heirs.
(VII-5) 2278;
On October 4, 1996, a Petition for Relief from Judgment was filed by
2. Ordering defendant to pay to plaintiffs respondents Omar G. Maruhom, Elias G. Maruhom, Bucay G. Maruhom,
the fair market value of said 70,000 square meters of land Mamod G. Maruhom, Farouk G. Maruhom, Hidjara G. Maruhom, Potrisam G.
covering Lots 1, 2, and 3 as described in Survey Plan FP Maruhom and Lumba G. Maruhom asserting as follows:
(VII-5) 2278 less the area of 21,995 square meters
at P1,000.00 per square meter or a total of P48,005,000.00 1) they did not file a motion to reconsider or
for the remaining unpaid portion of 48,005 square meters; appeal the decision within the reglementary period
with 6% interest per annum from the filing of this case until of fifteen (15) days from receipt of judgment
paid; because they believed in good faith that the decision
was for damages and rentals and attorneys fees
3. Ordering defendant to pay plaintiffs a only as prayed for in the complaint:
reasonable monthly rental of P0.68 per square meter of the
total area of 48,005 square meters effective from its 2) it was only on August 26, 1996 that they
occupancy of the foregoing area in 1978 or a total learned that the amounts awarded to the plaintiffs
of P7,050,974.40. represented not only rentals, damages and
attorneys fees but the greatest portion of which was
4. Ordering defendant to pay plaintiffs the payment of just compensation which in effect would
sum of P200,000.00 as moral damages; and make the defendant NPC the owner of the parcels of
land involved in the case;
5. Ordering defendant to pay the further
sum of P200,000.00 as attorneys fees and the costs. 3) when they learned of the nature of the
judgment, the period of appeal has already expired;
SO ORDERED.[3]
4) they were prevented by fraud, mistake,
On August 15, 1996, Ibrahim, joined by his co-heirs, filed an Urgent Motion accident, or excusable negligence from taking legal
for Execution of Judgment Pending Appeal. On the other hand, NAPOCOR steps to protect and preserve their rights over their
filed a Notice of Appeal by registered mail on August 19, 1996. Thereafter, parcels of land in so far as the part of the decision
NAPOCOR filed a vigorous opposition to the motion for execution of decreeing just compensation for petitioners
judgment pending appeal with a motion for reconsideration of the Decision properties;
which it had received on August 9, 1996.
5) they would never have agreed to the alienation
On August 26, 1996, NAPOCOR filed a Manifestation and Motion of their property in favor of anybody, considering the
withdrawing its Notice of Appeal purposely to give way to the hearing of its fact that the parcels of land involved in this case
motion for reconsideration. were among the valuable properties they inherited
6
from their dear father and they would rather see their amending it further by deleting the award of moral damages and reducing the
land crumble to dust than sell it to anybody.[4] amount of rentals and attorneys fees, thus:

WHEREFORE, premises considered, herein Appeals are


The RTC granted the petition and rendered a modified judgment hereby partially GRANTED, the Modified Judgment is
dated September 8, 1997, thus: ordered SET ASIDE and rendered of no force and effect and
the original Decision of the court a quo dated 7 August 1996
WHEREFORE, a modified judgment is hereby rendered: is hereby RESTORED with the MODIFICATION that the
award of moral damages is DELETED and the amounts of
rentals and attorneys fees are REDUCED to P6,888,757.40
and P50,000.00, respectively.
1) Reducing the judgment award of
plaintiffs for the fair market value In this connection, the Clerk of Court of RTC Lanao del Sur
of P48,005,000.00 by 9,526,000.00 or for a is hereby directed to reassess and determine the additional
difference by P38,479,000.00 and by the filing fee that should be paid by Plaintiff-Appellant IBRAHIM
further sum of P33,603,500.00 subject of the taking into consideration the total amount of damages
execution pending appeal leaving a sought in the complaint vis--vis the actual amount of
difference of 4,878,500.00 which may be the damages awarded by this Court. Such additional filing fee
subject of execution upon the finality of this shall constitute a lien on the judgment.
modified judgment with 6% interest per
annum from the filing of the case until paid. SO ORDERED.[6]

2) Awarding the sum of P1,476,911.00 to


herein petitioners Omar G. Maruhom, Elias Hence, this petition ascribing the following errors to the CA:
G. Maruhom, Bucay G. Maruhom, Mahmod
G. Maruhom, Farouk G. Maruhom, Hidjara
G. Maruhom, Portrisam G. Maruhom and (a) RESPONDENTS WERE NOT DENIED THE
Lumba G. Maruhom as reasonable rental BENEFICIAL USE OF THEIR SUBJECT
deductible from the awarded sum PROPERTIES TO ENTITLE THEM TO JUST
of P7,050,974.40 pertaining to plaintiffs. COMPENSATION BY WAY OF DAMAGES;

3) Ordering defendant embodied in the (b) ASSUMING THAT RESPONDENTS ARE


August 7, 1996 decision to pay plaintiffs the ENTITLED TO JUST COMPENSATION BY WAY
sum of P200,000.00 as moral damages; and OF DAMAGES, NO EVIDENCE WAS PRESENTED
further sum of P200,000.00 as attorneys ANENT THE VALUATION OF RESPONDENTS
fees and costs. PROPERTY AT THE TIME OF ITS TAKING IN THE
YEAR 1978 TO JUSTIFY THE AWARD OF ONE
SO ORDERED.[5] THOUSAND SQUARE METERS (P1000.00/SQ. M.)
EVEN AS PAYMENT OF BACK RENTALS IS
ITSELF IMPROPER.
Subsequently, both respondent Ibrahim and NAPOCOR appealed to
the CA. This case revolves around the propriety of paying just compensation to
respondents, and, by extension, the basis for computing the same. The
In the Decision dated June 8, 2005, the CA set aside the modified threshold issue of whether respondents are entitled to just compensation
judgment and reinstated the original Decision dated August 7, 1996, hinges upon who owns the sub-terrain area occupied by petitioner.
7
Thus, the ownership of land extends to the surface as well as to the subsoil
Petitioner maintains that the sub-terrain portion where the under it. In Republic of the Philippines v. Court of Appeals,[9] this principle
underground tunnels were constructed does not belong to respondents was applied to show that rights over lands are indivisible and, consequently,
because, even conceding the fact that respondents owned the property, their require a definitive and categorical classification, thus:
right to the subsoil of the same does not extend beyond what is necessary to
enable them to obtain all the utility and convenience that such property can The Court of Appeals justified this by saying there is no
normally give. In any case, petitioner asserts that respondents were still able conflict of interest between the owners of the surface rights
to use the subject property even with the existence of the tunnels, citing as and the owners of the sub-surface rights. This is rather
an example the fact that one of the respondents, Omar G. Maruhom, had strange doctrine, for it is a well-known principle that the
established his residence on a part of the property. Petitioner concludes that owner of a piece of land has rights not only to its surface
the underground tunnels 115 meters below respondents property could not but also to everything underneath and the airspace above it
have caused damage or prejudice to respondents and their claim to this up to a reasonable height. Under the aforesaid ruling, the
effect was, therefore, purely conjectural and speculative.[7] land is classified as mineral underneath and agricultural on
the surface, subject to separate claims of title. This is also
The contention lacks merit. difficult to understand, especially in its practical application.

Generally, in an appeal by certiorari under Rule 45 of the Rules of Court, the Under the theory of the respondent court, the
Court does not pass upon questions of fact. Absent any showing that the trial surface owner will be planting on the land while the mining
and appellate courts gravely abused their discretion, the Court will not locator will be boring tunnels underneath. The farmer
examine the evidence introduced by the parties below to determine if they cannot dig a well because he may interfere with the mining
correctly assessed and evaluated the evidence on record. [8] The jurisdiction operations below and the miner cannot blast a tunnel lest
of the Court in cases brought to it from the CA is limited to reviewing and he destroy the crops above. How deep can the farmer, and
revising the errors of law imputed to it, its findings of fact being as a rule how high can the miner go without encroaching on each
conclusive and binding on the Court. others rights? Where is the dividing line between the
surface and the sub-surface rights?
In the present case, petitioner failed to point to any evidence
demonstrating grave abuse of discretion on the part of the CA or to any other The Court feels that the rights over the land are
circumstances which would call for the application of the exceptions to the indivisible and that the land itself cannot be half agricultural
above rule. Consequently, the CAs findings which upheld those of the trial and half mineral. The classification must be categorical; the
court that respondents owned and possessed the property and that its land must be either completely mineral or completely
substrata was possessed by petitioner since 1978 for the underground agricultural.
tunnels, cannot be disturbed. Moreover, the Court sustains the finding of the
lower courts that the sub-terrain portion of the property similarly belongs to
respondents. This conclusion is drawn from Article 437 of the Civil Code Registered landowners may even be ousted of ownership and
which provides: possession of their properties in the event the latter are reclassified as
mineral lands because real properties are characteristically indivisible. For
ART. 437. The owner of a parcel of land is the the loss sustained by such owners, they are entitled to just compensation
owner of its surface and of everything under it, and he can under the Mining Laws or in appropriate expropriation proceedings.[10]
construct thereon any works or make any plantations and
excavations which he may deem proper, without detriment to Moreover, petitioners argument that the landowners right extends to
servitudes and subject to special laws and ordinances. He the sub-soil insofar as necessary for their practical interests serves only to
cannot complain of the reasonable requirements of aerial further weaken its case. The theory would limit the right to the sub-soil upon
navigation. the economic utility which such area offers to the surface
owners. Presumably, the landowners right extends to such height or depth
where it is possible for them to obtain some benefit or enjoyment, and it is
8
extinguished beyond such limit as there would be no more interest protected plaintiffs applied for a two-million peso loan with the Amanah
by law.[11] Islamic Bank for the expansion of the operation of the Ameer
Construction and Integrated Services to be secured by said
In this regard, the trial court found that respondents could have dug land (Exh. N), but the application was disapproved by the
upon their property motorized deep wells but were prevented from doing so bank in its letter of April 25, 1995 (Exh. O) stating that:
by the authorities precisely because of the construction and existence of the
tunnels underneath the surface of their property. Respondents, therefore, still Apropos to this, we regret to inform you that
had a legal interest in the sub-terrain portion insofar as they could have we cannot consider your loan application
excavated the same for the construction of the deep well. The fact that they due to the following reasons, to wit:
could not was appreciated by the RTC as proof that the tunnels interfered
with respondents enjoyment of their property and deprived them of its full use That per my actual ocular inspection and
and enjoyment, thus: verification, subject property offered as
collateral has an existing underground
Has it deprived the plaintiffs of the use of their lands tunnel by the NPC for the Agus I Project,
when from the evidence they have already existing which tunnel is traversing underneath your
residential houses over said tunnels and it was not shown property, hence, an encumbrance. As a
that the tunnels either destroyed said houses or disturb[ed] matter of bank policy, property with an
the possession thereof by plaintiffs? From the evidence, an existing encumbrance cannot be considered
affirmative answer seems to be in order. The plaintiffs and neither accepted as collateral for a loan.
[their] co-heirs discovered [these] big underground tunnels in
1992. This was confirmed by the defendant on November All the foregoing evidence and findings convince this
13, 1992 by the Acting Assistant Project Manager, Agus 1 Court that preponderantly plaintiffs have established the
Hydro Electric Project (Exh. K). On September 16, 1992, condemnation of their land covering an area of 48,005 sq.
Atty. Omar Maruhom (co-heir) requested the Marawi City meters located at Saduc, Marawi City by the defendant
Water District for permit to construct a motorized deep well National Power Corporation without even the benefit of
over Lot 3 for his residential house (Exh. Q). He was refused expropriation proceedings or the payment of any just
the permit because the construction of the deep well as (sic) compensation and/or reasonable monthly rental since
the parcels of land will cause danger to lives and property. 1978.[12]
He was informed that beneath your lands are constructed
the Napocor underground tunnel in connection with Agua
Hydroelectric plant (Exh. Q-2). There in fact exists ample In the past, the Court has held that if the government takes property without
evidence that this construction of the tunnel without the prior expropriation and devotes the property to public use, after many years, the
consent of plaintiffs beneath the latters property endangered property owner may demand payment of just compensation in the event
the lives and properties of said plaintiffs. It has been proved restoration of possession is neither convenient nor feasible. [13] This is in
indubitably that Marawi City lies in an area of local volcanic accordance with the principle that persons shall not be deprived of their
and tectonic activity. Lake Lanao has been formed by property except by competent authority and for public use and always upon
extensive earth movements and is considered to be a payment of just compensation.[14]
drowned basin of volcano/tectonic origin. In Marawi City,
there are a number of former volcanoes and an extensive Petitioner contends that the underground tunnels in this case
amount of faulting. Some of these faults are still moving. constitute an easement upon the property of respondents which does not
(Feasibility Report on Marawi City Water District by Kampsa- involve any loss of title or possession. The manner in which the easement
Kruger, Consulting Engineers, Architects and Economists, was created by petitioner, however, violates the due process rights of
Exh. R). Moreover, it has been shown that the underground respondents as it was without notice and indemnity to them and did not go
tunnels [have] deprived the plaintiffs of the lawful use of the through proper expropriation proceedings. Petitioner could have, at any time,
land and considerably reduced its value. On March 6, 1995, validly exercised the power of eminent domain to acquire the easement over
9
respondents property as this power encompasses not only the taking or when the expropriator enters private property not only for a momentary
appropriation of title to and possession of the expropriated property but period but for more permanent duration, for the purpose of devoting the
likewise covers even the imposition of a mere burden upon the owner of the property to a public use in such a manner as to oust the owner and deprive
condemned property.[15] Significantly, though, landowners cannot be him of all beneficial enjoyment thereof.[23] Moreover, taking of the property for
deprived of their right over their land until expropriation proceedings are purposes of eminent domain entails that the entry into the property must be
instituted in court. The court must then see to it that the taking is for public under warrant or color of legal authority.[24]
use, that there is payment of just compensation and that there is due process Under the factual backdrop of this case, the last element of taking
of law.[16] mentioned, i.e., that the entry into the property is under warrant or color of
legal authority, is patently lacking. Petitioner justified its nonpayment of the
In disregarding this procedure and failing to recognize respondents indemnity due respondents upon its mistaken belief that the property formed
ownership of the sub-terrain portion, petitioner took a risk and exposed itself part of the public dominion.
to greater liability with the passage of time. It must be emphasized that the
acquisition of the easement is not without expense. The underground tunnels This situation is on all fours with that in
impose limitations on respondents use of the property for an indefinite period the Mangondato case. NAPOCOR in that case took the property of therein
and deprive them of its ordinary use. Based upon the foregoing, respondents respondents in 1979, using it to build its Aqua I Hydroelectric Plant Project,
are clearly entitled to the payment of just compensation. [17] Notwithstanding without paying any compensation, allegedly under the mistaken belief that it
the fact that petitioner only occupies the sub-terrain portion, it is liable to pay was public land. It was only in 1990, after more than a decade of beneficial
not merely an easement fee but rather the full compensation for land. This is use, that NAPOCOR recognized therein respondents ownership and
so because in this case, the nature of the easement practically deprives the negotiated for the voluntary purchase of the property.
owners of its normal beneficial use. Respondents, as the owners of the
property thus expropriated, are entitled to a just compensation which should In Mangondato, this Court held:
be neither more nor less, whenever it is possible to make the assessment,
than the money equivalent of said property.[18] The First Issue: Date of Taking or Date of Suit?

The entitlement of respondents to just compensation having been The general rule in determining just
settled, the issue now is on the manner of computing the same. In this compensation in eminent domain is the value of the
regard, petitioner claims that the basis for the computation of the just property as of the date of the filing of the complaint, as
compensation should be the value of the property at the time it was taken in follows:
1978. Petitioner also impugns the reliance made by the CA upon National
Power Corporation v. Court of Appeals and Macapanton Mangondato [19] as Sec. 4. Order of Condemnation. When such a motion is
the basis for computing the amount of just compensation in this action. The overruled or when any party fails to defend as required by
CA found that the award of damages is not excessive because the P1000 this rule, the court may enter an order of condemnation
per square meter as the fair market value was sustained in a case involving a declaring that the plaintiff has a lawful right to take the
lot adjoining the property in question which case involved an expropriation by property sought to be condemned, for the public use or
[petitioner] of portion of Lot 1 of the subdivision plan (LRC) PSD 116159 purpose described in the complaint, upon the payment
which is adjacent to Lots 2 and 3 of the same subdivision plan which is the of just compensation to be determined as of the date of the
subject of the instant controversy.[20] filing of the complaint. x x x (Italics supplied).

Just compensation has been understood to be the just and complete Normally, the time of the taking coincides with the filing of
equivalent of the loss[21] and is ordinarily determined by referring to the value the complaint for expropriation. Hence, many ruling of this
of the land and its character at the time it was taken by the expropriating Court have equated just compensation with the value of the
authority.[22] There is a taking in this sense when the owners are actually property as of the time of filing of the complaint consistent
deprived or dispossessed of their property, where there is a practical with the above provision of the Rules. So too, where the
destruction or a material impairment of the value of their property, or when institution of the action precedes entry to the property, the
they are deprived of the ordinary use thereof. There is a taking in this context
10
just compensation is to be ascertained as of the time of filing case in Caro de Araullo. In the instant case, however, it is
of the complaint. difficult to conceive of how there could have been
an extra-ordinary increase in the value of the owners
The general rule, however, admits of an exception: land arising from the expropriation, as indeed the
where this Court fixed the value of the property as of the records do not show any evidence that the valuation of
date it was taken and not the date of the commencement P1,000.00 reached in 1992 was due to increments
of the expropriation proceedings. directly caused by petitioners use of the land. Since the
petitioner is claiming an exception to Rule 67, Section 4, it
In the old case of Provincial Government of Rizal vs. Caro has the burden in proving its claim that its occupancy and
de Araullo, the Court ruled that x x x the owners of the land use -- not ordinary inflation and increase in land values --
have no right to recover damages for this unearned was the direct cause of the increase in valuation from 1978
increment resulting from the construction of the public to 1992.
improvement (lengthening of Taft Avenue from Manila to
Pasay) from which the land was taken. To permit them to do
so would be to allow them to recover more than the value of Side Issue: When is there Taking of Property?
the land at the time it was taken, which is the true measure
of the damages, or just compensation, and would discourage But there is yet another cogent reason why this petition
the construction of important public improvements. should be denied and why the respondent Court should be
sustained. An examination of the undisputed factual
In subsequent cases, the Court, following the above environment would show that the taking was not really made
doctrine, invariably held that the time of taking is the in 1978.
critical date in determining lawful or just
compensation. Justifying this stance, Mr. Justice (later This Court has defined the elements of taking as the main
Chief Justice) Enrique Fernando, speaking for the ingredient in the exercise of power of eminent domain, in the
Court in Municipality of La Carlota vs. The Spouses following words:
Felicidad Baltazar and Vicente Gan, said, x x x the owner as
is the constitutional intent, is paid what he is entitled to A number of circumstances must be present in taking of
according to the value of the property so devoted to public property for purposes of eminent domain: (1) the
use as of the date of taking. From that time, he had been expropriator must enter a private property; (2) the entrance
deprived thereof. He had no choice but to submit. He is not, into private property must be for more than a momentary
however, to be despoiled of such a right. No less than the period; (3) the entry into the property should be under
fundamental law guarantees just compensation. It would be warrant or color of legal authority; (4) the property must be
injustice to him certainly if from such a period, he could not devoted to a public use or otherwise informally appropriated
recover the value of what was lost. There could be on the or injuriously affected; and (5) the utilization of the property
other hand, injustice to the expropriator if by a delay in for public use must be in such a way to oust the owner and
the collection, the increment in price would accrue to deprive him of all beneficial enjoyment of the property.(Italics
the owner. The doctrine to which this Court has been supplied)
committed is intended precisely to avoid either contingency
fraught with unfairness. In this case, the petitioners entrance in 1978 was without
intent to expropriate or was not made under warrant or color
Simply stated, the exception finds the application where of legal authority, for it believed the property was public land
the owner would be given undue incremental covered by Proclamation No. 1354. When the private
advantages arising from the use to which the respondent raised his claim of ownership sometime in 1979,
government devotes the property expropriated -- as for the petitioner flatly refused the claim for compensation,
instance, the extension of a main thoroughfare as was in the nakedly insisted that the property was public land and
11
wrongly justified its possession by alleging it had already decision. This being the case, the city being bound to buy
paid financial assistance to Marawi City in exchange for the the building at an agreed price, under a valid and subsisting
rights over the property. Only in 1990, after more than a contract, and the plaintiff being agreeable to its sale, the
decade of beneficial use, did the petitioner recognize private expropriation thereof, as sought by the defendant, is
respondents ownership and negotiate for the voluntary baseless. Expropriation lies only when it is made necessary
purchase of the property. A Deed of Sale with provisional by the opposition of the owner to the sale or by the lack of
payment and subject to negotiations for the correct price was any agreement as to the price. There being in the present
then executed. Clearly, this is not the intent nor the case a valid and subsisting contract, between the owner of
expropriation contemplated by law. This is a simple attempt the building and the city, for the purchase thereof at an
at a voluntary purchase and sale. Obviously, the petitioner agreed price, there is no reason for the expropriation. (Italics
neglected and/or refused to exercise the power of eminent supplied)
domain.
In the instant case, petitioner effectively repudiated the deed
Only in 1992, after the private respondent sued to recover of sale it entered into with the private respondent when it
possession and petitioner filed its Complaint to expropriate, passed Resolution No. 92-121 on May 25, 1992 authorizing
did petitioner manifest its intention to exercise the power of its president to negotiate, inter alia, that payment shall be
eminent domain. Thus the respondent Court correctly held: effective only after Agus I HE project has been placed in
operation. It was only then that petitioners intent to
If We decree that the fair market value of the land be expropriate became manifest as private respondent
determined as of 1978, then We would be sanctioning a disagreed and, barely a month, filed suit.[25]
deceptive scheme whereby NAPOCOR, for any reason
other than for eminent domain would occupy anothers In the present case, to allow petitioner to use the date it constructed
property and when later pressed for payment, first the tunnels as the date of valuation would be grossly unfair. First, it did not
negotiate for a low price and then conveniently enter the land under warrant or color of legal authority or with intent to
expropriate the property when the land owner refuses to expropriate the same. In fact, it did not bother to notify the owners and
accept its offer claiming that the taking of the property wrongly assumed it had the right to dig those tunnels under their
for the purpose of the eminent domain should be property. Secondly, the improvements introduced by petitioner, namely, the
reckoned as of the date when it started to occupy the tunnels, in no way contributed to an increase in the value of the land. The
property and that the value of the property should be trial court, therefore, as affirmed by the CA, rightly computed the valuation of
computed as of the date of the taking despite the the property as of 1992, when respondents discovered the construction of
increase in the meantime in the value of the property. the huge underground tunnels beneath their lands and petitioner confirmed
the same and started negotiations for their purchase but no agreement could
In Noble vs. City of Manila, the City entered into a lease- be reached.[26]
purchase agreement of a building constructed by the
petitioners predecessor-in-interest in accordance with the As to the amount of the valuation, the RTC and the CA both used as
specifications of the former. The Court held that being bound basis the value of the adjacent property, Lot 1 (the property involved herein
by the said contract, the City could not expropriate the being Lots 2 and 3 of the same subdivision plan), which was valued
building. Expropriation could be resorted to only when it is at P1,000 per sq. meter as of 1990, as sustained by this Court
made necessary by the opposition of the owner to the sale in Mangondato, thus:
or by the lack of any agreement as to the price. Said the The Second Issue: Valuation
Court:
We now come to the issue of valuation.
The contract, therefore, in so far as it refers to the purchase
of the building, as we have interpreted it, is in force, not The fair market value as held by the respondent Court, is the
having been revoked by the parties or by judicial amount of P1,000.00 per square meter. In an expropriation
12
case where the principal issue is the determination of just respondent has convinced us that, indeed, such general rule
compensation, as is the case here, a trial before should in fact be observed in this case.[27]
Commissioners is indispensable to allow the parties to
present evidence on the issue of just Petitioner has not shown any error on the part of the CA in reaching
compensation. Inasmuch as the determination of just such a valuation. Furthermore, these are factual matters that are not within
compensation in eminent domain cases is a judicial function the ambit of the present review.
and factual findings of the Court of Appeals are conclusive
on the parties and reviewable only when the case falls within WHEREFORE, the petition is DENIED and the Decision of the Court
the recognized exceptions, which is not the situation of Appeals in C.A.-G.R. CV No. 57792 dated June 8, 2005 is AFFIRMED.
obtaining in this petition, we see no reason to disturb the
factual findings as to valuation of the subject property. As No costs.
can be gleaned from the records, the court-and-the-parties-
appointed commissioners did not abuse their authority in SO ORDERED.
evaluating the evidence submitted to them nor misappreciate
the clear preponderance of evidence. The amount fixed and
agreed to by the respondent appellate Court is not grossly GENOVEVA R. JABONETE, ET AL., plaintiffs,
exorbitant. To quote: vs.
JULIANA MONTEVERDE, ET AL., defendants,
Commissioner Ali comes from the Office of the Register of ANTONIO LEGASPI, respondent-appellant,
Deeds who may well be considered an expert, with a general DEVELOPMENT BANK OF THE PHILIPPINES, petitioner-appellee,
knowledge of the appraisal of real estate and the prevailing MRS. LUZ ARCILLA, petitioner-intervenor-appellee.
prices of land in the vicinity of the land in question so that his
opinion on the valuation of the property cannot be lightly Zuo and Mojica for the respondents-appellants.
brushed aside. Jesus Avancea for the plaintiffs.
The prevailing market value of the land is only one of the
determinants used by the commissioners report the other REGALA, J.:
being as herein shown:
This is an appeal from an order of the Court of First Instance of Davao, dated
xxx March 11, 1960, finding the respondent-appellant, Antonio Legaspi, guilty of
contempt of court, and imposing upon him a fine of P100.
xxx
On March 11, 1954, the Court of First Instance of Davao, in view of its finding
Commissioner Doromals report, recommending P300.00 per in Case No. 824, entitled Jabonete vs. Monteverde, et al., that Antonio
square meter, differs from the 2 commissioners only Legaspi acquired the lot in question with the knowledge that a "gravamen" or
because his report was based on the valuation as of 1978 by easement of right of way existed thereon, promulgated a decision the
the City Appraisal Committee as clarified by the latters dispositive portion of which reads:
chairman in response to NAPOCORs general counsels
query. Ordena al demandado Antonio Legaspi la demolicion de la parte del
corral construido a lo largo de su terreno que impide a lote
In sum, we agree with the Court of Appeals that petitioner demandantes tener acceso con la vereda que communica con la
has failed to show why it should be granted an exemption carretera principal, Tomas Claudio.
from the general rule in determining just compensation
provided under Section 4 of Rule 67. On the contrary, private

13
Declara que los demandantes tienen derecho el uso de la vereda los demandantes, a estos, su familia, sus amigos, chofers,
(Exh. A-3), de 3 metros de ancho, unico paso que disponen para servidumbre y de sus jeeps.
communicarse con la Calle Tomas Claudio, para el paso de sus
jeeps, y los vehiculos, reparados que entran y salen del taller de 5. Para los fines del uso de la calle, el demandado permitira a los
reparacion de aquellos. demandantes, frente de la casa de estos, abrir una puerta de 4
metros de ancho en el corral construido por el demandado que
The respondent-appellant received a copy of the decision on May 12, 1954. separa la calle privada y el terreno de los demandantes, a su
Two days later, May 14, 1954 he filed his notice of appeal therefrom. On May (demandantes) costa; sus hojas tendran por dentro, que los
21, 1954 however, upon a previous motion of the plaintiffs, the lower court demandantes tendran cerradas para evitar que los nios, hijos de
issued an order granting discretionary execution of the said decision. In view los inquilinos del demandado tengan acceso a los jeeps de los
of this last mentioned order, the plaintiffs immediately proceeded to the demandantes, cuyo garaje tendran dentro de su (demandantes)
premises in question and opened in the fence of the defendant Antonio terreno.
Legaspi a sufficient opening for the passage of men and vehicles. Even then,
however, the defendant filed with the court below on that very same day, El Juzgado ordena a las partes litigantes complan estrictamente con
May 21, 1954, a motion for the reconsideration of the order granting lo estipulado; de los contrario, los mismos estaran sujetos a las
discretionary execution. Thereafter, and upon the lower court's suggestion, ordenes de este Juzgado.
the parties entered into an amicable agreement which was later embodied in
an order or "auto" dated May 24, 1954, to wit:
As a result of the above agreement and Order of May 24, 1954, the
defendant abandoned the prosecution of his appeal. At the same time, both
A raiz de la mocion del demandado pidiendo antre otras cosas, la parties complied with its terms until the plaintiffs, unable to continue with their
reconsideracion de la orden de ejecucion de la decision dictada en repair shop, transferred to another place in December 1959 whereupon the
esta causa, el 22 del Mayo de 1954, el Juez que preside esta sala defendant reconstructed his fence and its footing, closing thereby the
se constituyo para una inspeccion ocular en el lugar en conflicto. opening previously made by the plaintiffs.

Durante la inspeccion ocular, los demandantes y demandado, In the course of time, the plaintiffs' lot was foreclosed by the Development
Antonio Legaspi, llegaron a un acuerdo: Bank of the Philippines (DBP) which, later still, conveyed it under a
conditional sale to Mrs. Luz Arcilla. On her acquisition of the said lot, Mrs.
1. Los demandantes no instalaran en su terreno su taller de Arcilla demanded of the defendant the re-opening of the fence in question as
reparacion de vehiculos de motor. it was her plan to construct her house in the said lot. When the defendant
refused, the Development Bank filed with the lower court a petition to hold
2. Los demandantes pueden construir su garaje dentro de su terreno the said defendant in contempt. To this petition, Mrs. Luz Arcilla later
para su jeep (AC), pero no los tendran parados en la calle privada intervened and was so allowed by the lower court. The Development Bank of
del demandados construida por este en su terreno a lo largo del the Philippines and Mrs. Luz Arcilla contended that the refusal of the
terreno de los demandantes; defendant to cause or allow the making of an opening in his fence was a
defiance of the said court's decision of March 11, 1954 and was, therefore,
contemptuous. After due hearing, the lower court sustained the petitioners
3. Los demandantes contribuiran a prorata con el demandado los
and found the defendant guilty of contempt with orders "to pay a fine of One
gastos de reparacion de la calle privada construida por el referido
Hundred Pesos (P100.00) and to open the vereda or alley leading to the lot
demandado en su terreno a lo largo del terreno de los
demandantes.1wph1.t owned by the Development Bank of the Philippines and conveyed to Mrs.
Luz S. Arcilla under a conditional deed of sale, otherwise he should be
imprisoned until he does so." Thus, the instant appeal.
4. El demandado, Antonio Legaspi, permitira el uso y paso en la
calle privada construida por el en su terreno a lo largo del terreno de
The respondent-appellant maintains that the lower court erred in finding him
guilty of contempt because:
14
1. The decision of March 11, 1954 was novated by the order of May demandantes, a estos, su familia, sus amigos, chofers, servidumbre
24, 1954. Consequently, he could not have violated the former y de sus jeeps.
decree since with its novation it ceased to have any legal effect.
The servitude established was clearly for the benefit alone of the plaintiffs
2. Even assuming that the said decision was not novated by the and the persons above enumerated and it is clear that the lower court, as
subsequent order of May 24, 1954, still he could not be deemed to well as the parties addressed by the said order, did not intend the same to
have violated the said decision because the same never became pass on to the plaintiffs'
final and executory. The respondent-appellant argued that since the successors-in-interest. In other words, the right acquired by the original
decision of March 11, 1954 ordered the opening of a right of way in plaintiffs was a personal servitude under Article 614 of the Civil Code, and
his property without providing for this corresponding compensation to not a predial servitude that inures to the benefit of whoever owns the
him, contrary to Article 649 of the Civil Code,1 there was in the said dominant estate.
decision "a void which ought to be filled or to be done in order to
completely dispose of the case. It was not clear, specific and In resisting the extension of the aforementioned easement to the latter, the
definitive," and consequently, a judgment that could not have plaintiffs' successors-in-interest, the respondent-appellant, therefore, was not
acquired finality. defying the decision of March 11, 1954 which was then no longer subsisting,
nor the order of May 24, 1954 since the said successors-in-interest had no
3. The right to file contempt proceedings against him, with respect to right thereunder.
the decrees contained in the decision of March 11, 1954, has
prescribed. The respondent-appellant conceded that there is no Another evidence that the servitude in question was personal to the plaintiffs
prescriptive period for the institution of contempt proceedings. is the fact that the same was granted to the latter without any compensation
However, he contended that inasmuch as contempt under Rule 64 of to the respondent-appellant.
the Rules of Court is punishable by arresto mayor, it should
prescribe in five years just as crimes for which the said penalty is
Wherefore, the order of the lower court dated March 11, 1960 finding the
imposed prescribe, under the Penal Code, in five years. respondent-appellant guilty of contempt is hereby reversed, without
pronouncement as to costs.
Without passing on the merits or demerits of the foregoing arguments, this
Court believes that the order finding the respondent-appellant guilty of Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Makalintal, Bengzon,
contempt should be reversed. It is clear that the order of May 24, 1954 J.P., Zaldivar and Sanchez, JJ., concur.
superseded and was fully intended by the lower court to modify or stand in Bautista Angelo and Dizon, JJ., took no part.
substitution of the decision of March 11, 1954. More than the expression of
the parties amicable agreement on the dispute, the said order was the lower
court's resolution of the respondent-appellant's motion for reconsideration of EDILBERTO ALCANTARA, FLORENCIO VILLARMIA, POLICARPIO
the decision of March 11, 1954. In the determination, therefore, of the said OBREGON,+ RICARDO ROBLE, ESCOLASTICA ONDONG,
appellant's obligation relative to the easement in question, the latter and not ESTEBAN RALLOS, HENRY SESBINO, SERGIO SESBINO,
the decision of March 11, 1954 is the proper point in reference. MANUEL CENTENO,+ RENATO CRUZ, MARCELINO CENEZA,
BUENAVENTURA ONDONG, and BENJAMIN
HALASAN, petitioners, vs. CORNELIO B. RETA, JR. respondent.
Under the aforesaid order of May 24, 1954, the easement awarded or
secured by the lower court to the plaintiffs was strictly a personal one. The
right of way granted was expressly limited to the latter and their "family, DECISION
friends, drivers, servants and jeeps." In the very language of the agreement PARDO, J. :
the following appears:

El demandado Antonio Legaspi, permitira el uso y paso en la calle


privada construida por el en su terreno a lo largo del terreno de los The Case

15
In this petition for review,[1] petitioners seek to review the decision[2] of Hence, this appeal.[8]
the Court of Appeals affirming the decision[3] of the Regional Trial Court,
Davao City, Branch 14, dismissing petitioners complaint for the exercise of
the right of first refusal under Presidential Decree No. 1517, injunction with
The Issue
preliminary injunction, attorneys fees and nullity of amicable settlement.

The issue is whether petitioners have the right of first refusal under
The Facts Presidential Decree No. 1517.

Edilberto Alcantara, Florencio Villarmia, Policarpio Obregon, Ricardo


The Courts Ruling
Roble, Escolastica Ondong, Esteban Rallos, Henry Sesbino, Sergio Sesbino,
Manuel Centeno, Renato Cruz, Marcelo Ceneza, Buenaventura Ondong and
Benjamin Halasan, filed with the Regional Trial Court, Davao City, Branch The petition is without merit.
14, a complaint[4] against Cornelio B. Reta, Jr. for the exercise of the right of
right of first refusal under Presidential Decree No. 1517, injunction with The area involved has not been proclaimed an Urban Land Reform
preliminary injunction, attorneys fees and nullity of amicable settlement. Zone (ULRZ). In fact, petitioners filed a petition with the National Housing
Authority requesting that the land they were occupying be declared as an
The plaintiffs claimed that they were tenants or lessees of the land ULRZ. On May 27, 1986, the request was referred to Mr. Jose L. Atienza,
located in Barangay Sasa, Davao City, covered by Transfer Certificate of General Manager, National Housing Authority, for appropriate action. [9] The
Title No. T-72594, owned by Reta; that the land has been converted by Reta request was further referred to acting mayor Zafiro Respicio, Davao City, as
into a commercial center; and that Reta is threatening to eject them from the per 2nd Indorsement dated July 1, 1986.[10] Clearly, the request to have the
land. They assert that they have the right of first refusal to purchase the land land proclaimed as an ULRZ would not be necessary if the property was an
in accordance with Section 3(g) of Presidential Decree No. 1517 since they ULRZ.
are legitimate tenants or lessees thereof.
Presidential Decree No. 1517, otherwise known as The Urban Land
They also claimed that the amicable settlement executed between Reta Reform Act, pertains to areas proclaimed as Urban Land Reform
and Ricardo Roble was void ab initio for being violative of Presidential Zones.[11] Consequently, petitioners cannot claim any right under the said law
Decree No. 1517. since the land involved is not an ULRZ.
On the other hand, Reta claimed that the land is beyond the ambit of To be able to qualify and avail oneself of the rights and privileges
Presidential Decree No. 1517 since it has not been proclaimed as an Urban granted by the said decree, one must be: (1) a legitimate tenant of the land
Land Reform Zone; that the applicable law is Batas Pambansa Blg. 25 for for ten (10) years or more; (2) must have built his home on the land by
failure of the plaintiffs to pay the rentals for the use of the land; and that the contract; and, (3) has resided continuously for the last ten (10)
amicable settlement between him and Ricardo Roble was translated to the years. Obviously, those who do not fall within the said category cannot be
latter and fully explained in his own dialect. considered legitimate tenants and, therefore, not entitled to the right of first
On March 8, 1994, the trial court rendered a decision dismissing the refusal to purchase the property should the owner of the land decide to sell
complaint and ordering the plaintiffs to pay Reta certain sums representing the same at a reasonable price within a reasonable time.[12]
rentals that had remained unpaid.[5] Respondent Reta denies that he has lease agreements with petitioners
On April 6, 1994, plaintiffs appealed the decision to the Court of Edilberto Alcantara and Ricardo Roble.[13] Edilberto Alcantara, on the other
Appeals.[6] hand, failed to present proof of a lease agreement other than his testimony in
court that he bought the house that he is occupying from his father-in-law.[14]
On December 9, 1998, the Court of Appeals promulgated a
decision[7] affirming in toto the decision of the trial court. Respondent Reta allowed petitioner Ricardo Roble to use sixty-two (62)
coconut trees for P186 from where he gathered tuba. This arrangement
16
would show that it is a usufruct and not a lease. Usufruct gives a right to ELISEO FAJARDO, JR., and MARISSA FAJARDO, petitioners,
enjoy the property of another with the obligation of preserving its form and vs. FREEDOM TO BUILD, INC., respondent.
substance, unless the title constituting it or the law otherwise provides. [15]
Petitioner Roble was allowed to construct his house on the land DECISION
because it would facilitate his gathering of tuba. This would be in the nature
of a personal easement under Article 614 of the Civil Code.[16] VITUG, J.:

Whether the amicable settlement[17] is valid or not, the conclusion would Freedom To Build, Incorporated, an owner-developer and seller of
still be the same since the agreement was one of usufruct and not of lease. low-cost housing, sold to petitioner-spouses, a house and lot
Thus, petitioner Roble is not a legitimate tenant as defined by Presidential designated Lot No. 33, Block 14, of the De la Costa Homes in
Decree No. 1517. Barangka, Marikina, Metro Manila. The Contract to Sell executed
As to the other petitioners, respondent Reta admitted that he had verbal between the parties, contained a Restrictive Covenant providing
agreements with them. This notwithstanding, they are still not the legitimate certain prohibitions, to wit:[1]
tenants contemplated by Presidential Decree No. 1517, who can exercise the
right of first refusal. "Easements. For the good of the entire community, the
homeowner must observe a two-meter easement in front. No
A contract has been defined as a meeting of the minds between two structure of any kind (store, garage, bodega, etc.) may be
persons whereby one binds himself, with respect to the other, to give built on the front easement.
something or to render some service.[18]
Clearly, from the moment respondent Reta demanded that the "x x x.............................x x x.............................x x x
petitioners vacate the premises, the verbal lease agreements, which were on
a monthly basis since rentals were paid monthly, [19] ceased to exist as there "Upward expansion. A second storey is not prohibited. But
was termination of the lease. the second storey expansion must be placed above the back
portion of the house and should not extend forward beyond
Indeed, none of the petitioners is qualified to exercise the right of first
the apex of the original building.
refusal under P. D. No. 1517.
Another factor which militates against petitioners claim is the fact that "x x x.............................x x x.............................x x x
there is no intention on the part of respondent Reta to sell the property.
Hence, even if the petitioners had the right of first refusal, the situation which "Front expansion: 2nd Storey: No unit may be extended in
would allow the exercise of that right, that is, the sale or intended sale of the the front beyond the line as designed and implemented by
land, has not happened. P. D. No. 1517 applies where the owner of the the developer in the 60 sq. m. unit. In other words, the 2nd
property intends to sell it to a third party.[20] floor expansion, in front, is 6 meters back from the front
property line and 4 meters back from the front wall of the
house, just as provided in the 60 sq. m. units."[2]
The Fallo
The above restrictions were also contained in Transfer Certificate of
Title No. N-115384 covering the lot issued in the name of petitioner-
WHEREFORE, the Court DENIES the petition. The Court AFFIRMS the spouses.
decision of the Court of Appeals[21] and the resolution denying
reconsideration thereof. The controversy arose when petitioners, despite repeated warnings
No costs. from respondent, extended the roof of their house to the property line
and expanded the second floor of their house to a point directly
SO ORDERED. above the original front wall.[3] Respondent filed before the Regional
17
Trial Court, National Capital Judicial Region, Branch 261, Pasig City, A perusal of the provisions of the covenant would show that the
an action to demolish the unauthorized structures. restrictions therein imposed were intended -

After trial, judgment was rendered against petitioners; thus: "For the protection and benefit of the De La Costa Low
Income Housing Project, and of all the persons who may
"WHEREFORE, premises considered, defendant spouses now, or hereafter become owners of any part of the project,
Eliseo B. Fajardo, Jr., and Marissa F. Fajardo are hereby and as part of the consideration for the conveyance of the
directed to immediately demolish and remove the extension housing unit, these restrictions are promulgated in order that;
of their expanded housing unit that exceeds the limitations the intents and purposes for which the project was designed
imposed by the Restrictive Covenant, otherwise the Branch shall be upheld; to wit: subsequent duly approved sale and
Sheriff of this Court shall execute this decision at assignments of housing units shall be made only to low
the expense of the defendants. income families; a certain level of privacy shall be observed;
a community spirit shall be fostered; and an undisturbed
"As to damages and attorney's fees, it appearing from the possession and occupancy at the homeowners shall be
maintained."[5]
records of this case that no evidence to sustain the same
was adduced by either of the parties, the Court deems
it proper not to award any. Restrictive covenants are not, strictly speaking, synonymous with
easements. While it may be correct to state that restrictive covenants
"SO ORDERED."[4] on the use of land or the location or character of buildings or other
structures thereon may broadly be said to create easements or
rights, it can also be contended that such covenants, being
On appeal to it, the Court of Appeals affirmed the decision of the trial limitations on the manner in which one may use his own
court. property,[6] do not result in true easements,[7]but a case of servitudes
(burden), sometimes characterized to be negative easements or
In their petition for review to this Court, the spouses contest the reciprocal negative easements. Negative easement is the most
judgment of the courts below. Adjacent owners reportedly have no common easement created by covenant or agreement whose effect
objection to the construction, and have even expressed interest in is to preclude the owner of the land from doing an act, which, if no
undertaking a similar expansion in their respective residences. easement existed, he would be entitled to do.[8]
Moreover, the couple's two children, a son and a daughter, might
soon get married and then share, with their families, living quarters Courts which generally view restrictive covenants with disfavor for
with petitioners. The latter also assail the personality of private being a restriction on the use of one's property, have, nevertheless,
respondent to question the construction which have effectively sustained them[9] where the covenants are reasonable,[10] not
relinquished its ownership, right or interest over the subdivision upon contrary to public policy,[11] or to law,[12] and not in restraint of
the execution of the Deed of Absolute Sale in favor of the individual trade.[13] Subject to these limitations, courts enforce restrictions to the
homeowners. Per the contract between Freedom to Build same extent that will lend judicial sanction to any other valid
Incorporated and the De la Costa Low Income Project Homeowners' contractual relationship.[14] In general, frontline restrictions on
Association (hereinafter homeowners' association), petitioners aver, constructions have been held to be valid stipulations.[15]
the enforcement of the prohibitions contained in the "Restrictive
Covenant" originally residing on respondent is now lodged in the
homeowners' association. Petitioners maintain that it is incumbent The provisions in a restrictive covenant prescribing the type of the
upon the homeowners' association, not on respondent, to enforce building to be erected are crafted not solely for the purpose of
creating easements, generally of light and view, nor as a restriction
compliance with the provisions of the covenant.
as to the type of construction,[16] but may also be aimed as a check
on the subsequent uses of the building[17] conformably with what the
developer originally might have intended the stipulations to be. In its
18
Memorandum, respondent states in arguing for the validity of the Finally, petitioners argue that for lack of a specific provision,
restrictive covenant that the - prescribing the penalty of demolition in the "Restrictive Covenant" in
the event of a breach thereof, the prayer of respondent to demolish
"x x x restrictions are not without specific purpose. In a low the structure should fail. This argument has no merit; Article 1168 of
cost-socialized housing, it is of public knowledge that the New Civil Code states:
owners-developers are constrained to build as many number
of houses on a limited land area precisely to "When the obligation consists in not doing and the obligor
accommodate marginalized lot buyers, providing as much as does what has been forbidden him, it shall be undone at his
possible the safety, aesthetic and decent living condition by expense."
controlling overcrowding. Such project has been designed to
accommodate at least 100 families per hectare."[18] This Court is not unaware of its ruling in Ayala Corporation vs. Ray
Burton Development Corporation,[22] which has merely adjudged the
There appears to be no cogent reasons for not upholding restrictive payment of damages in lieu of demolition. In the aforementioned
covenants aimed to promote aesthetics, health, and privacy or to case, however, the elaborate mathematical formula for the
prevent overcrowding. determination of compensatory damages which takes into account
the current construction cost index during the immediately preceding
Viewed accordingly, the statement of petitioners that their immediate 5 years based on the weighted average of wholesale price and wage
neighbors have not opposed the construction is unavailing to their indices of the National Census and Statistics Office and the Bureau
cause, the subject restrictive covenant not being intended for the of Labor Statistics is explicitly provided for in the Deed of Restrictions
benefit of adjacent owners but to prescribe the uses of the building, entered into by the parties. This unique and peculiar circumstance,
i.e., to ensure, among other things, that the structures built on De la among other strong justifications therein mentioned, is not extant in
Costa Homes Subdivision would prevent overcrowding and promote the case at bar.
privacy among subdivision dwellers. The argument then of
petitioners that expansion is necessary in order to accommodate the In sum, the Court holds that -
individual families of their two children must fail for like reason. Nor
can petitioners claim good faith; the restrictive covenants are (1)....The provisions of the Restrictive Covenant are valid;
explicitly written in the Contract To Sell and annotated at the back of
the Transfer Certificate of Title. (2)....Petitioners must be held to be bound thereby; and

Petitioners raise the issue of the personality of respondent to enforce


(3)....Since the extension constructed exceeds the floor area
the provisions of the covenant. Broadly speaking, a suit for equitable
limits of the Restrictive Covenant, petitioner-spouses can be
enforcement of a restrictive covenant can only be made by one for
required to demolish the structure to the extent that it
whose benefit it is intended.[19] It is not thus normally enforceable by exceeds the prescribed floor area limits.
one who has no right nor interest in the land for the benefit of which
the restriction has been imposed.[20] Thus, a developer of a
subdivision can enforce restrictions, even as against remote WHEREFORE, the assailed decision, dated 13 July 1998, of the
grantees of lots, only if he retains part of the land.[21] There would Court of Appeals in CA-G.R. CV No. 50085, sustaining that of the
have been merit in the argument of petitioners - that respondent, court a quo, is AFFIRMED. No costs.
having relinquished ownership of the subdivision to the homeowners,
is precluded from claiming any right or interest on the same property SO ORDERED.
- had not the homeowners' association, confirmed by its board of
directors, allowed respondent to enforce the provisions of the MAXIMO CORTES, plaintiff-appellant,
restrictive covenant. vs.
JOSE PALANCA YU-TIBO, defendant-appellant.
19
Felipe G. Calderon, for appellant. the date on which the owner of the dominant estate may have prohibited, by
Simplicio del Rosario, for appellee. a formal act, the owner of the servient estate from doing something which
would be lawful but for the existence of the easement.
MAPA, J.:
The court below in its decision held in the easement of light is negative, and
This suit was brought to obtain an injunction, in accordance with the this ruling has been assigned by the plaintiff as error to be corrected by this
provisions of section 162 to 172 of the Code of Civil Procedure, for the court.
purpose of restraining the continuation of certain buildings commenced by
the defendant. The court below issued a preliminary injunction during the A building may receive light in various manners in the enjoyment of an
trial, but, upon, rendering final judgment, dissolved the injunction, with the easement of light, because the openings through which the light penetrates
costs against the plaintiff. The latter excepted to this judgment and assigns may be made in one's own wall, in the wall of one's neighbor, or in a party
error: wall. The legal doctrine applicable in either one of these cases is different,
owing to the fact that, although anyone may open windows in his own wall,
In the trial the following facts were admitted without contradiction: no one has a right to do so in the wall of another without the consent of the
owner, and it is also necessary, in accordance with article 580 of the Civil
Code, to obtain the consent of the other coowner when the opening is to be
(1) That house No. 65 Calle Rosario, this city, property of the wife of the
made in a party wall.
plaintiff, has certain windows therein, through which it receives light and air,
said windows opening on the adjacent house, No. 63 of the same street; (2)
that these windows have been in the existence since the year 1843 and (3) This suit deals with the first case; that is, windows opened in a wall belonging
that the defendant, the tenant of the said house No. 63, has commenced to the wife of the plaintiff, and it is this phase of the easement which it is
certain work with the view to raising the roof of the house in such a manner necessary to consider in this opinion.
that one-half of the windows in said house No. 65 has been covered, thus
depriving the building of a large part of the air and light formerly received When a person opens windows in his own building he does nothing more
through the window. In its decision the court below practically finds the than exercise an act of ownership inherent in the right of property, which,
preceding facts, and further finds that the plaintiff has not proven that he has, under article 348 of the Civil Code, empowers him to deal with his property
by any formal act, prohibited the owner of house No. 63, from making as he may see fit, with no limitations other than those established by law. By
improvements of any kind therein at any time prior to the complaint. reason of the fact that such an act is performed wholly on a thing which is
wholly the property of the one opening the window, it does not in itself
The contention of the plaintiff is that by the constant and uninterrupted use of establish any easement, because the property is used by its owner in the
the windows referred to above during a period of fifty-nine years he acquired exercise of dominion, and not as the exercise of an easement: "For a man,"
from prescription an easement of light in favor of the house No. 65, and as a says law 13, title 31, third partida, "should not use that which belongs to him
servitude upon house No. 63, and, consequently, has acquired the right to as if it were a service only, but as his own property." Coexistent with this right
restrain the making of any improvements in the latter house which might in is the right of the owner of the adjacent property to cover up such windows
any manner be prejudicial to the enjoyment of the said easement. He by building on his own land or raising a wall contiguously to the wall in which
contends that the easement of light is positive; and that therefore the period the windows are opened (art. 581 of the same Code), by virtue of the
of possession for the purposes of the acquisition of a prescriptive title is to reciprocity of rights which should exist between abutting owners, and which
begin from the date on which the enjoyment of the same commenced, or, in would cease to exist if one could do what he pleased on his property and the
other words, applying the doctrine to this case, from the time that said other could not do the same on his. Hence it is that the use of the windows
windows were opened with the knowledge of the owner of the house No. 63, opened in a wall of one's own property, in the absence of some covenant or
and without opposition on this part. express agreement to the contrary, is regarded as an act of mere tolerance
on the part of the owner of the abutting property (judgments of the supreme
court of Spain of the 17th of May, 1876; 10th of May, 1884; 30th of May,
The defendant, on the contrary, contends that the easement is negative, and
1890), and does not create any right to maintain the windows to the prejudice
that therefore the time for the prescriptive acquisition thereof must begin from
of the latter (judgment of the supreme court of Spain of the 13th of June,
20
1877). The mere toleration of such an act does not imply on the part of the the one part, and the consent on the other, of the freedom of the tenement
abutting owner a waiver of his right to freely build upon his land as high as he which it is sought to charge with the easement." In its judgment of June 13,
may see fit, nor does it avail the owner of the windows for the effects of 1877, it is also held that use does not confer the right to maintain lateral
possession according to article 1942 of the Civil Code, because it is a mere openings or windows in one's own wall to the prejudice of the owner of the
possession at will. From all this it follows that the easement of light with adjacent tenement, who, being entitled to make use of the soil and of the
respect to the openings made in one's own edifice does not consist precisely space above it, may, without restriction, build on his line or increase the
in the fact of opening them or using them, inasmuch as they may be covered height of existing buildings, unless he has been " forbidden to increase the
up at any time by the owner of the abutting property, and, as Manresa says height of his buildings and to thus cut off the light," and such prohibition has
in his commentaries on the Civil Code, "there is no true easement as long as been consented to and the time fixed by law subsequently expired. The court
the right to impede its use exists." The easement really consists of in also holds that it is error to give the mere existence or use of windows in a
prohibiting or restraining the adjacent owner from doing anything which may wall standing wholly on the land of one proprietor the creative force of true
tend to cut off or interrupt the light; in short, it is limited to the obligation of not easement, although they may have existed from the time immemorial.
impeding the light (ne luminibus officiatur). The latter coincides in its effects, Finally, the judgments of the 12th of November, 1899, and the 31st of May,
from this point of view, with the obligation of refraining from increasing the 1890, hold that "as this supreme court has decided, openings made in walls
height of a building (altius non tollendi), which, although it constitutes a standing wholly on the land of one proprietor and which overlook the land of
special easement, has for its object, at times, the prevention of any another exist by mere tolerance in the absence of an agreement to the
interruption of the light enjoyed by the adjacent owner. contrary, and can not be acquired by prescription, except by computing the
time from the execution of some act of possession which tends to deprive the
It will be readily observed that the owner of the servient estate subject to owner of the tenement affected of the right to build thereon." Various other
such easement is under no obligation whatsoever to allow anything to be judgments might be cited, but we consider that those above mentioned are
done on his tenement, nor to do anything there himself, but is simply sufficient to demonstrate the uniformity of the decisions upon this point. It is
restrained from doing anything thereon which may tend to cut off the light true that the supreme court of Spain, in its decisions of February 7 and May
from the dominant estate, which he would undoubtedly be entitled to do were 5, 1896, has classified as positive easements of lights which were the object
it not for the existence of the easement. If, then, the first condition is that of the suits in which these decisions were rendered in cassation, and from
which is peculiar to positive easements, and the second condition that which these it might be believed at first glance that the former holdings of the
is peculiar to negative easements, according to the definition of article 533 of supreme court upon this subject had been overruled. But this is not so, as a
the Civil Code, it is our opinion that the easement of lights in the case of matter of fact, inasmuch as there is no conflict between these decisions and
windows opened in one's own wall is of a negative character, and, as such, the former decisions above cited.
can not be acquired by prescription under article 538 of the Civil Code,
except by counting the time of possession from the date on which the owner In the first of the suits referred to, the question turned upon two houses which
of the dominant estate may, by a formal act have prohibited the owner of the had formerly belonged to the same owner, who established a service of light
servient estate from doing something which it would be lawful from him to do on one of them for the benefit of the other. These properties were
were it not for the easement. subsequently conveyed to two different persons, but at the time of the
separation of the property nothing was said as to the discontinuance of the
The supreme court of Spain, in its decisions upon this subject, has easement, nor were the windows which constituted the visible sign thereof
established these principles by a long line of cases. In its judgment of May removed. The new owner of the house subject to the easement endeavored
14, 1861, the said court holds that "the prescription of the easement of lights to free it from the incumbrance, notwithstanding the fact that the easement
does not take place unless there has been some act of opposition on the part had been in existence for thirty-five years, and alleged that the owner of the
of the person attempting to acquire such a right against the person dominant estate had not performed any act of opposition which might serve
attempting to obstruct its enjoyment." The easements of light and view," says as a starting point for the acquisition of a prescriptive title. The supreme
the judgment of March 6, 1875, "because they are of a negative character, court, in deciding this case, on the 7th of February, 1896, held that the
can not be acquired by a prescriptive title, even if continuous, or although easement in this particular case was positive, because it consisted in
they may have been used for more than twenty-eight years, if the the active enjoyment of the light. This doctrine is doubtless based upon
indispensable requisite for prescription is absent, which is the prohibition on article 541 of the Code, which is of the following tenor: "The existence of
apparent sign of an easement between two tenements, established by the
21
owner of both of them, shall be considered, should one be sold, as a title for in turn, implies the voluntary waiver of the right of such part owner to oppose
the active and passive continuance of the easement, unless, at the time of the making of such openings or windows in such a wall.
the division of the ownership of both tenements, the contrary should be
expressed in the deed of conveyance of either of them, or such sign is taken With respect to the provisions of law 15, title 31, third partida, which the
away before the execution of such deed." appellant largely relied upon in this oral argument before the court, far from
being contrary to it, is entirely in accord with the doctrine of the decisions
The word "active" used in the decision quoted in classifying the particular above referred to. This law provides that "if anyone shall open a window in
enjoyment of light referred to therein, presupposes on the part of the owner the wall of his neighbor, through which the light enters his house," by this
of the dominant estate a right to such enjoyment arising, in the particular sole fact he shall acquire a prescriptive title to the easement of light, if the
case passed upon by that decision, from the voluntary act of the original time fixed in the same law (ten years as to those in the country and twenty
owner of the two houses, by which he imposed upon one of them an years as to absentees) expires without opposition on the part of the owner of
easement for the benefit of the other. It is well known that easements are the wall; but, with the exception of this case, that is to say, when the windows
established, among other cases, by the will of the owners. (Article 536 of the are not opened in the wall of the neighbor, the law referred to requires as a
Code). It was an act which was, in fact, respected and acquiesced in by the condition to the commencement of the running of the time for the prescriptive
new owner of the servient estate, since he purchased it without making any acquisition of the easement, that "the neighbor be prohibited from raising his
stipulation against the easement existing thereon, but, on the contrary, house, and from thereby interrupting the light." That is to say, he must be
acquiesced in the continuance of the apparent sign thereof. As is stated in prohibited from exercising his right to build upon his land, and cover the
the decision itself, "It is a principle of law that upon a division of a tenement window of the other. This prohibition, if consented to, serves as a starting
among various persons -- in the absence of any mention in the contract of a point for the prescriptive acquisition of the easement. It is also an
mode of enjoyment different from that to which the former owner was indispensable requisite, therefore, in accordance with the law of thepartidas,
accustomed -- such easements as may be necessary for the continuation of above mentioned, that some act of opposition be performed, in order that an
such enjoyment are understood to subsist." It will be seen, then, that the easement may be acquired with respect to openings made in one's own wall.
phrase "active enjoyment" involves an idea directly opposed to the
enjoyment which is the result of a mere tolerance on the part of the adjacent For a proper understanding of this doctrine, it is well to hold in mind that the
owner, and which, as it is not based upon an absolute, enforceable right, Code of the partidas, as well as the Roman law, clearly distinguishes two
may be considered as of a merely passive character. Therefore, the decision classes of easements with respect to the lights of houses, as may be seen in
in question is not in conflict with the former rulings of the supreme court of law 2 of title 31, of the third partida. One of them consists in "the right to
Spain upon the subject, inasmuch as it deals with an easement of light pierce the wall of one's neighbor to open a window through which the light
established by the owner of the servient estate, and which continued in force may enter one's house" (equivalent to the so-called easement of luminum of
after the estate was sold, in accordance with the special provisions of article the Romans); the other is "the easement which one house enjoys over
541 of the Civil Code. another, whereby the latter can not at any time be raised to a greater height
than it had at the time the easement was established, to the end at the light
Nor is the other decision cited, of May 5, 1896, in conflict with the doctrine be not interrupted." (Ne luminibus officiatur.) For the prescriptive acquisition
above laid down, because it refers to windows opened in a party wall, and of the former the time must begin, as we have seen, from the opening of the
not in a wall the sole and exclusive property of the owner of the dominant window in the neighbor's wall. As to the second, the time commences from
tenement, as in the cases referred to by the other decisions, and as in the the date on which he was "prevented from raising his house." Some of the
case at bar. The reason for the difference of the doctrine in the one and the judgments which establish the doctrine above laid down were rendered by
other case is that no part owner can, without the consent of the other, make the supreme court of Spain interpreting and applying the above cited law 15,
in a party wall a window or opening of any kind, as provided by article 580 of title 31, partida 3, and therefore they can not in any sense be regarded as
the Civil Code. The very fact of making such openings in such a wall might, antagonistic to the law itself.
therefore, be the basis for the acquisition of a prescriptive title without the
necessity of any active opposition, because it always presupposes the The question as to whether the windows of the house of the plaintiff are, or
express or implied consent of the other part owner of the wall, which consent, are not, so-called regulation windows, we consider of but little importance in
this case, both because the authority of the decisions of the law of

22
thepartidas, above cited, refers to all kinds of windows, and not to regulation but, on the contrary, he affirms that demand has been made that the
windows solely, and because the record does not disclose, nor has the windows in said house be closed, as may be seen on page 8 of his brief.
appellant even stated, the requirements as to such regulation windows under
the law in operation prior to the Civil Code, which he asserts should be The point discussed in this trial being whether the plaintiff has acquired the
applied and on which he relies to demonstrate that he has acquired by easement which he seeks to enforce over the house of which the defendant
prescription the easement in question. With respect to the watershed which, is tenant, it is evident that the provisions of article 585 of the Civil Code can
according to the plaintiff, exists over the window in question, the record does not be invoked without taking for granted the very point at issue. This article
not disclose that the same has been destroyed by the defendant. He refers to cases in which, under any title, the right has been acquired to have
expressly denies it on page 7 of his brief, and affirms (p. 8) that the tenant of direct views, balconies, or belvederes over contiguous property. The
the appellant's property himself removed it, by reason of the notice served on existence of such a right being the very point at issue, the supposition upon
him; on the other hand, the judgment of the court below contains no findings which the article rests is lacking, and it is therefore not in point.
with respect to this fact, nor does it disclose the former existence of any such
watershed. Furthermore, the opinion which we have formed with respect to
As a result of the opinion above expressed, we hold:
this matter, in so far as we are able to understand the merits of the case, is
that this shed was a mere accessory of the window, apparently having no
other purpose than that of protecting it against the inclemency of the 1. That the easement of light which is the object of this litigation is of a
weather; this being so, we are of opinion that it should follow the condition of negative character, and therefore pertains to the class which can not be
the window itself, in accordance with the legal maxim that the accessory acquired by prescription as provided by article 538 of the Civil Code, except
always follows the principal. The appellant contends that the shed should be by counting the time of possession from the date on which the owner of the
regarded as a projection within the provisions of article 582 of the Code; but dominant estate has, in a formal manner, forbidden the owner of the servient
it is sufficient to observe that this article speaks of windows with direct views, estate to do an act which would be lawful were it not for the easement.
balconies, or similar projections, in order to conclude that the article does not
refer to such watersheds, which have not the slightest degree of similarity to 2. That, in consequence thereof, the plaintiff, not having executed any formal
balconies, nor are they constructed for the purpose of obtaining the view -- act of opposition to the right of the owner of the house No. 63 Calle Rosario
this being the subject-matter which this article expressly purports to control -- (of which the defendant is tenant), to make therein improvements which
inasmuch as such sheds have rather the effect of limiting the scope of the might obstruct the light of the house No. 65 of the same street, the property
view than of increasing it. of the wife of the appellant, at any time prior to the complaint, as found by the
court below in the judgment assigned as error, he has not acquired, nor
The fact that the defendant did not cover the windows of the other house could he acquire by prescription, such easement of light, no matter how long
adjacent No. 63 at the time he covered the windows of the appellant, a fact a time have elapsed since the windows were opened in the wall of the said
which the latter adduces as proof of the recognition on the part of the former house No. 65, because the period which the law demands for such
of the prescriptive acquisition of the easement of the light in favor of that prescriptive acquisition could not have commenced to run, the act with which
house, which, according to his statement, is under precisely the same it must necessarily commence not having been performed.
conditions as the house of the plaintiff, does not necessarily imply, in our
opinion, any such recognition, as it might be the result of a mere tolerance on Therefore, we affirm the judgment of the court below and condemn the
the part of the defendant. Certainly the fact of his tolerating the use by the appellant to the payment of all damages caused to the plaintiff, and to the
owner of that house of such windows, supposing the facts to be as stated, payment of the costs of this appeal. So ordered.
does not carry with it as a result an obligation to exercise the same
forbearance with respect to the plaintiff; but whatever may be the legal status Arellano, C.J., Cooper, Willard, and Ladd, JJ., concur.
of the windows in the house referred to with respect to the house No. 63, we Torres, J., did not sit in this case.
cannot pass upon the point, nor can we form suppositions concerning the
matter for the purpose of drawing conclusions of any kind therefrom to
support our opinion, for the simple reason that it is not a point at issue in the
case, and more especially because the defendant not only denied the
existence of the alleged easement of light in favor of the house referred to,
23
ON MOTION FOR A REHEARING. The conclusion reached is evidently false. The appellant confounds the facts
with the law -- an act of ownership with the right of ownership. The owner of
The plaintiff asks for a rehearing of the decision of the court of March 12th a thing does not cease to be such owner because in his manner of use or
last upon the ground that the same contains error: enjoyment thereof he violates some provision of law. The acts which he
performs, in our opinion, even if abusive or contrary to law, are in a strict
sense acts of ownership, acts in the exercise of dominion, because this
First, because the decision holds that the window opened in the plaintiff's
character is not derived from a greater or less degree of compliance with the
own wall and watershed do not constitute the continuous and apparent
easements of prospect, light, and ventilation, or jus projitiendi and jus provisions of law, but from the existence of the status of owner on the part of
spillitiendi, this ruling being in opposition to the provisions of laws 12, 14, and the person who exercises such acts. In order that the act performed by the
15, title 31, third partida, and articles 530, 532, 533, 537, 538, 582, and 585 owner of a wall in opening windows therein be a true act of ownership it is a
matter of indifference whether or not the distance prescribed by article 582 of
of the Civil Code.
the Code has been respected, although, considered from a legal point of
view, it might be an illegal act, as not complying with the conditions imposed
This allegation is entirely unfounded, inasmuch as the decision of the court by law.
contains no declaration as to whether the windows and watershed do or do
not constitute continuous and apparent easements, or jus projitiendi and jus
The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to
spillitiendi. These questions were not drawn into issue by the complaint, and
the effect that "a man should not use that which belongs to him as if it were a
therefore any decision thereon one way or the other would have been
mere dicta. What the court did hold was that the easement of light, when it is service only, but as his own property" is of general application, and does not
sought to claim such benefit from a window opened in one's own wall, as refer to the easements which is a property owner may establish for the
does the appellant with respect to the tenement of the defendant, belongs to benefit of his heirs, as is erroneously believed by the appellant. The very
same law provides that easements which "a man imposes upon his house
the class of negative easements, and that on hold on that account the time of
must be for the benefit of the tenement or thing of another, and not that of his
possession for prescriptive acquisition of the title thereto must be counted,
own tenement;" and this is because things are of service to their owner by
not from the time of the opening of the windows, but from the time at which
reason of dominion, and not in the exercise of a right of easement. "Res
the owner thereof has executed some act of opposition tending to deprive the
sua," says a legal maxim, "nemini jure servitutis servit."
owner of the servient tenement of his right, under the law, build upon it to
such height as he might see fit in the legitimate use of his rights of
ownership. With respect to the watershed, the court held that the shed in The provision of article 1942 of the Civil Code to the effect that acts which
question in the case is not included within the class of projections referred to are merely tolerated procedure no effect with respect to possession is
in article 582 of the Civil Code, and certain it is that neither this article nor applicable as much as to the prescription of real rights as to the prescription
any of the other provisions of law cited by the appellant in his motion papers of the fee, it being a glaring and self-evident error to affirm the contrary, as
established any doctrine contrary to that laid down in the decision, either with does the appellant in his motion papers. Possession is the fundamental basis
regard to the watershed or with respect to the windows. It is not necessary to of the prescription. Without it no kind of prescription is possible, not even the
say anything further upon this point. It is sufficient to read the text of the laws extraordinary. Consequently, if acts of mere tolerance produce no effect with
cited to reach the conclusion that the assertion made by the appellant in his respect to possession, as that article provides, in conformity with article 444
motion papers is entirely gratuitous. of the same Code, it is evident that they can produce no effect with respect to
prescription, whether ordinary or extraordinary. This is true whether the
prescriptive acquisition be of a fee or of real rights, for the same reason holds
Article 582 provides that windows with direct views, balconies, or other
in one and the other case; that is, that there has been no true possession in
similar projections opening upon the tenement of one's neighbor are not
the legal sense of the word. Hence, it is because the use of windows in one's
permissible unless there are two meters distance between the wall in which
own wall is the result of a mere tolerance that the supreme court of Spain, in
such openings are constructed and the adjacent tenement. From this the
appellant draws the conclusion that he who opens windows in his own wall its judgment of June 13, 1877, has held that such user lacks the creative
force of a true easement, although continued from time immemorial. The
without respecting the distance mentioned does not exercise an act of
citation of article 1959 of the Civil Code and of law 21, title 29, partida 3,
ownership, as stated in the decision, inasmuch as he violates an express
made by the petitioner, is therefore not in point, because both of these
provisions of the law.
24
provisions of law, which refer to the extraordinary period of prescription interfere with said easement, contrary to the provisions of law 14, title
presuppose possession as a necessary requisite, even if without either just 31, partida 3, and articles 538 and 585 of the Civil Code, which establish the
title or good faith. contrary.

The second error assigned is that in the decision the court holds that This assertion is entirely destitute of foundation, inasmuch as neither in the
the gravamina constituted by the window and the projection are negative law of the partidas nor in the articles of the Civil Code mentioned is to be
easements, against the provisions of article 533, which define them as found the doctrine which the appellant arbitrarily seeks to deduce from them.
positive, which definition, he adds, is supported by the judgments of the It is sufficient to read the text to reach the conclusion that the assertion is
supreme court of Spain of February 7 and May 5, 1896, cited in paragraph wholly gratuitous.
12 of the said decision, which judgments declare that the easement resulting
from a window is positive. The fourth error assigned is that the court holds that the watershed, as being
an accessory of the window, can not in itself constitute an easement, this
It is not true that article 533 of the Civil Code says that the easement of light being contrary to the provisions of articles 582 and 585 of the Civil Code, and
is positive, because it does nothing more than give in general terms the law 2, title 31, partida 3, which do not make any such distinction.
definition of positive easements and negative easements, without attempting
to specify whether the easement of lights pertains to the first or to the second Neither of the law cited speaks expressly of watersheds. We have held that
class. We have declared that the easement is negative, having in mind this article 582 refers solely to windows, balconies, and other similar projections,
very definition of the Code and the doctrine established by the judgments of and that the watershed in question does not pertain to this class of
the supreme court of Spain which have been cited in our opinion. The projections, our holding being based upon the reasons given in our decision.
interpretation which the appellant attempts to give the article of the Civil The appellant advances no argument worthy of serious consideration, and
Code cited is evidently erroneous and, consequently, the citation made by therefore we continue to believe that our opinion in this matter is strictly in
him in support of his contention is not in point. accordance with the law.

Our opinion of the true extent and meaning of the judgments of the supreme The appellant has attached to his motion for a rehearing two judgments, one
court of Spain of February 7 and May 5, 1896, has been already sufficiently rendered by the Royal Audiencia of Manila September 6, 1877, and the other
explained, and it is therefore unnecessary to go into the subject again here. by the supreme court of Spain on the 22d of February, 1892, and we think it
We refer to our decision with respect to what was said therein upon this well to say a few words concerning them.
subject.
In the opinion of the appellant these judgments support the theory contended
The decision of the court does not contain the declaration, as gratuitously for by him at the trial, that the easement of lights is positive and not negative.
assumed by the appellant, that the easement resulting from a projection is of His error in so believing is evident, inasmuch as neither of the judgments
a negative character; nor, in fact, had we any occasion to make such a referred to establishes any such doctrine. On the contrary, it appears clear,
declaration, in view of the nature of the issues raised and discussed during from the first of these judgments, that the easement referred to is negative in
the trial. What we did, indeed, hold was that the watershed mentioned in the the opinion of the court which rendered it. This appears from the eight
complaint, the purpose of which was simply to protect the window in question conclusion of law therein, which is literally as follows: "From the evidence
from sun and rain, was a mere accessory to that window, and that in no case introduced by the defendant, and even from the testimony of witnesses of the
could it be considered as a projection within the provisions of article 582 of plaintiff, it has been proven that since 1828 the house in question has
the Civil Code, as so erroneously contended by the appellant at the trial. We suffered no change or alteration in its roof, which projects over Cosio's
find nothing in his motion papers which can in any way weaken this holding. lot, which constitutes the active opposition necessary in order to acquire by
prescription the right to the light." It will be seen, then, that the latter part of
The third error is assigned is that the court holds that the easement of light, the preceding transcript of the conclusion of law days down precisely the
as negative, can not be acquired by prescription except by counting the same doctrine as that expressed in our decision -- that active opposition is a
period of possession from the time at which the owner of the servient necessary condition for prescriptive acquisition of an easement of light. And
tenement has been prohibited from making improvements which might this also demonstrates conclusively that the court which rendered the
25
judgment referred to considered the easement to be negative, inasmuch as There is not one word on these judgments which says that the easement of
positive easements do not require any active opposition as a basis for their lights is positive, nor that a watershed constitutes a true projection within the
prescriptive acquisition, such an act being solely necessary to the meaning attached to this word in article 582 of the Civil Code, as has been
prescription of negative easements. vainly contended by the appellant in the trial.

It would appear, judging from his allegations as a whole, that the appellant Therefore the appellant's motion for a rehearing of the decision of March 12,
confuses positive easements with continuous easements, and the judgments 1903, is denied.
referred to, in fact, declares in its fourth conclusion of law that the easement
of light is continuous. If these were really so the error of the appellant would SOLID MANILA CORPORATION, petitioner,
be manifest, because continuity is not a quality exclusively peculiar to vs.
positive easements; there are negative easements which are also BIO HONG TRADING CO., INC. and COURT OF APPEALS, respondents.
continuous. Hence if is that the Civil Code, after classifying easements, in
article 532, as continuous and discontinuous, classifies them also as positive Balgos & Perez for petitioner.
and negative (art. 533), thus giving to understand that this latter classification Alfredo G. de Guzman for private respondent.
depends upon other characteristics entirely distinct from the continuity or
discontinuity of easements. If all continuous easements were positive and all
discontinuous easements were negative, then the express division of
easements into positive and negative made by the Code, after establishing
the division of the same as continuous or discontinuous, would be entirely
unnecessary, as they would be entirely merged or included in the latter SARMIENTO, J.:
classification. It is sufficient to read the text of the Code to understand
beyond the possibility of a doubt that a negative easement may be This is an appeal filed by way of a petition for review on certiorari under Rule
continuous, and that a positive easement may be discontinuous, according to 45 of the Rules of Court.
the special nature of each one.
The petitioner raises two questions: (1) whether or not the Court of
With respect to the second judgment -- the judgment of the supreme court of Appeals1 erred in reversing the trial court which had rendered summary
Spain of February 22, 1892 -- it is certainly difficult to understand how the judgment; and (2) whether or not it erred in holding that an easement had
appellant could have imagined that he had found therein the slightest ground been extinguished by merger.
for his contention, inasmuch as it lays down no doctrine which relates even
inference to the subject of easements, and simply holds, in the first of only We rule for the petitioner on both counts.
two paragraphs in which its conclusions are contained, that "judgments
should be clear, precise, and responsive to the complaint and the issues
It appears that the petitioner is the owner of a parcel of land located in
properly raised at the trial;" and in the second, that "the judgment appealed
Ermita, Manila, covered by Transfer Certificate of Title No. 157750 of the
was contradictory as to the questions it decides, because it makes certain
Register of Deeds of Manila. The same lies in the vicinity of another parcel,
declarations favorable to some of the contentions in the plaintiff's complaint
registered in the name of the private respondent corporation under Transfer
and then gives judgment for the defendant, without making any distinction." It
Certificate of Title No. 128784.
was for this reason alone, and for no other, that the judgment appealed was
reversed and annulled. In the judgment rendered by the same supreme court
upon the merits of the case, as a result of this decision in cassation, no other The private respondent's title came from a prior owner, and in their deed of
doctrine is laid down than that "the judgment must be that the defendant sale, the parties thereto reserved as an easement of way:
comply with those claims advanced by the complaint to which he was
consented, and that he must be discharged as to those allegations which . . .a portion thereof measuring NINE HUNDRED FOURTEEN
have been denied by him and which have not been proved by the plaintiff." SQUARE METERS, more or less, had been converted into a private
alley for the benefit of neighboring estates, this being duly annotated

26
at the back of the covering transfer Certificate of title per regulations The court a quo shortly issued ex parte an order directing the private
of the Office of the City Engineer of Manila and that the three respondent to open the gates. Subsequently, the latter moved to have the
meterwide portion of said parcel along the Pasig River, with an area order lifted, on the grounds that: (1) the easement referred to has been
of ONE HUNDRED SEVENTY NINE (179) SQUARE METERS, more extinguished by merger in the same person of the dominant and servient
or less, had actually been expropriated by the City Government, and estates upon the purchase of the property from its former owner; (2) the
developed pursuant to the beautification drive of the Metro Manila petitioner has another adequate outlet; (3) the petitioner has not paid any
Governor. (p. 3, Record).2 indemnity therefor; and (4) the petitioner has not shown that the right-of-way
lies at the point least prejudicial to the servient estate.
As a consequence, an annotation was entered in the private respondent's
title, as follows: The private respondent's opposition notwithstanding, the trial court issued a
"temporary writ of preliminary injunction to continue up to the final termination
Entry No. 7712/T-5000 CONSTRUCTION OF PRIVATE ALLEY of the case upon its merits upon the posting of a P5,000.00 bond by the
It is hereby made of record that a construction of private alley has plaintiff.4 (the petitioner herein).
been undertaken on the lot covered by this title from Concepcion
Street to the interior of the aforesaid property with the plan and Thereafter, the respondent corporation answered and reiterated its above
specification duly approved by the City Engineer subject to the defenses.
following conditions to wit: (1) That the private alley shall be at least
three (3) meters in width; (2) That the alley shall not be closed so On April 15, 1986, the petitioner moved for summary judgment and the
long as there's a building exists thereon (sic); (3) That the alley shall court a quo ruled on the same as follows:
be open to the sky; (4) That the owner of the lot on which this private
alley has been constituted shall construct the said alley and provide
In view of the foregoing, this Court finds it unnecessary to try this case on the
same with concrete canals as per specification of the City Engineer; merit (sic) and hereby resolve (sic) to grant the plaintiffs motion for summary
(5) That the maintenance and upkeep of the alley shall be at the
judgment. (pp. 15-107, Record).5
expense of the registered owner; (6) That the alley shall remain open
at all times, and no obstructions whatsoever shall be placed thereon;
(7) That the owner of the lot on which the alley has been constructed On January 19, 1987, the trial court rendered judgment against the private
shall allow the public to use the same, and allow the City to lay pipes respondent, the dispositive portion of which states:
for sewer and drainage purposes, and shall not act (sic) for any
indemnity for the use thereof; and (8) That he shall impose upon the WHEREFORE, judgment is hereby rendered making permanent the
vendee or new owner of the property the conditions temporary mandatory injunction, that had been issued against the
abovementioned; other conditions set forth in Doc. No. 4236, Page defendant, and for the defendant to pay the plaintiff the costs of this
No. 11, Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila.3 suit.

The petitioner claims that ever since, it had (as well as other residents of The defendant's counterclaim against the plaintiff is hereby
neighboring estates) made use of the above private alley and maintained and dismissed, for lack of merit. (Summary Judgment, p. 6).6
contributed to its upkeep, until sometime in 1983, when, and over its
protests, the private respondent constructed steel gates that precluded The private respondent appealed to the respondent Court of Appeals.
unhampered use.
Meanwhile, the private respondent itself went to the Regional Trial Court on a
On December 6, 1984, the petitioner commenced suit for injunction against petition for the cancellation of the annotation in question. The court granted
the private respondent, to have the gates removed and to allow full access to cancellation, for which the petitioner instituted CA-G.R. SP No. 13421 of the
the easement. 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).
27
In reversing the trial court which had, as earlier mentioned, rendered There is therefore no question as to ownership. The question is whether or
summary judgment, the respondent Court of Appeals held that the summary not an easement exists on the property, and as we indicated, we are
judgment was improper and that the lower court erroneously ignored the convinced that an easement exists.
defense set up by the private respondent that the easement in question had
been extinguished. According to the Appellate Court, an easement is a mere It is true that the sale did include the alley. On this score, the Court rejects
limitation on ownership and that it does not impair the private respondent's the petitioner's contention that the deed of sale "excluded" it, because as a
title, and that since the private respondent had acquired title to the property, mere right-of-way, it can not be separated from the tenement and maintain
"merger" brought about an extinguishment of the easement. an independent existence. Thus:

The petitioner submits that the respondent Court of Appeals erred, because Art. 617. Easements are inseparable from the estate to which they
the very deed of sale executed between the private respondent and the actively or passively belong.9
previous owner of the property "excluded" the alley in question, and that in
any event, the intent of the parties was to retain the "alley" as an easement Servitudes are merely accessories to the tenements of which they form
notwithstanding the sale. part.10 Although they are possessed of a separate juridical existence, as
mere accessories, they can not, however, be alienated 11 from the tenement,
As already stated at the outset, the Court finds merit in the petition. or mortgaged separately.12

There is no question that an easement, as described in the deed of sale The fact, however, that the alley in question, as an easement, is inseparable
executed between the private respondent and the seller, had been from the main lot is no argument to defeat the petitioner's claims, because as
constituted on the private respondent's property, and has been in fact an easement precisely, it operates as a limitation on the title of the owner of
annotated at the back of Transfer Certificate of Title No. 128784. Specifically, the servient estate, specifically, his right to use (jus utendi).
the same charged the private respondent as follows: "(6) That the alley shall
remain open at all times, and no obstructions whatsoever shall be placed As the petitioner indeed hastens to point out, the deed itself stipulated that "a
thereon; (7) That the owner of the lot on which the alley has been portion thereof [of the tenement] measuring NINE HUNDRED FOURTEEN
constructed shall allow the public to use the same, and allow the City to lay
SQUARE METERS, more or less, had been converted into a private alley for
pipes for sewer and drainage purposes, and shall not [ask] for any indemnity
the benefit of the neighboring estates. . ."13 and precisely, the former owner,
for the use thereof. . ."8 Its act, therefore, of erecting steel gates across the
in conveying the property, gave the private owner a discount on account of
alley was in defiance of these conditions and a violation of the deed of sale, the easement, thus:
and, of course, the servitude of way.
WHEREAS, to compensate for the foregoing, the parties hereto
The Court then is of the opinion that injunction was and is proper and in
agreed to adjust the purchase price from THREE MILLION SEVEN
denying injunctive relief on appeal, the respondent Appellate Court
HUNDRED NINETY THOUSAND FOUR HUNDRED FORTY
committed an error of judgment and law. PESOS (P3,790,440.) to THREE MILLION FIVE HUNDRED THREE
THOUSAND TWO HUNDRED FORTY PESOS (P3,503,240.00)14
It is hardly the point, as the Court of Appeals held, that the private
respondent is the owner of the portion on which the right-of-way had been
Hence, and so we reiterate, albeit the private respondent did acquire
established and that an easement can not impair ownership. The petitioner is
ownership over the property including the disputed alley as a result of
not claiming the easement or any part of the property as its own, but rather, it the conveyance, it did not acquire the right to close that alley or otherwise put
is seeking to have the private respondent respect the easement already up obstructions thereon and thus prevent the public from using it, because as
existing thereon. The petitioner is moreover agreed that the private
a servitude, the alley is supposed to be open to the public.
respondent has ownership, but that nonetheless, it has failed to observe the
limitation or encumbrance imposed on the same
The Court is furthermore of the opinion, contrary to that of the Court of
Appeals, that no genuine merger took place as a consequence of the sale in
28
favor of the private respondent corporation. According to the Civil Code, a We also denied reconveyance in one case and approved a summary
merger exists when ownership of the dominant and servient estates is judgment rendered thereon, on the ground that from the records, the plaintiffs
consolidated in the same person.15 Merger then, as can be seen, requires full were clearly guilty of laches having failed to act until after twenty-seven
ownership of both estates. years.21 We likewise allowed summary judgment and rejected contentions of
economic hardship as an excuse for avoiding payment under a contract for
One thing ought to be noted here, however. The servitude in question is a the reason that the contract imposed liability under any and all conditions. 22
personal servitude, that is to say, one constituted not in favor of a particular
tenement (a real servitude) but rather, for the benefit of the general public. In the case at bar, the defense of merger is, clearly, not a valid defense,
indeed, a sham one, because as we said, merger is not possible, and
Personal servitudes are referred to in the following article of the Civil Code: secondly, the sale unequivocally preserved the existing easement. In other
words, the answer does not, in reality, tender any genuine issue on a
material fact and can not militate against the petitioner's clear cause of
Art. 614. Servitudes may also be established for the benefit of a
community, or of one or more persons to whom the encumbered action.
estate does not belong.16
As this Court has held, summary judgments are meant to rid a proceeding of
the ritual of a trial where, from existing records,23 the facts have been
In a personal servitude, there is therefore no "owner of a dominant tenement"
established, and trial would be futile.
to speak of, and the easement pertains to persons without a dominant
estate,17 in this case, the public at large.
What indeed, argues against the posturing of the private respondent and
consequently, the challenged holding of the respondent Court of Appeals as
Merger, as we said, presupposes the existence of a prior servient-dominant
well is the fact that the Court of Appeals itself had rendered judgment, in
owner relationship, and the termination of that relation leaves the easement
its CA-G.R. No. 13421, entitled Solid Manila Corporation v. Ysrael, in which it
of no use. 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 nullified the cancellation of the easement annotated at the back of the private
personal easement. respondent's certificate of title ordered by Judge Ysrael in LRC Case No.
273. As the petitioner now in fact insists, the Court of Appeals' judgment,
which was affirmed by this Court in its Resolution dated December 14, 1988,
For this reason, the trial court was not in error in rendering summary in G.R. No. 83540, is at least, the law of the case between the parties, as
judgment, and insofar as the respondent Court of Appeals held that it (the "law of the case" is known in law, e.g.:
trial court) was in error, the Court of Appeals is in error.
xxx xxx xxx
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, and the facts
appear undisputed based on the pleadings, depositions, admissions, and Law of the case has been defined as the opinion delivered on a
affidavits of record.18 In one case, this Court upheld a decision of the trial former appeal. More specifically, it means that whatever is once
irrevocably established as the controlling legal rule of decision
court rendered by summary judgment on a claim for money to which the
between the same parties in the same case continues to be the law
defendant interposed the defense of payment but which failed to produce
of the case, whether correct on general principles or not, so long as
receipts.19We held that under the circumstances, the defense was not
the facts on which such decision was predicated continue to be the
genuine but rather, sham, and which justified a summary judgment. In
another case, we rejected the claim of acquisitive prescription over registered facts of the case before the court. (21 C.J.S. 330) (Emphasis
property and found it likewise to be sham, and sustained consequently, a supplied).
summary judgment rendered because the title challenged was covered by a
Torrens Certificate and under the law, Torrens titles are imprescriptible.20 It may be stated as a rule of general application that, where the
evidence on a second or succeeding appeal is substantially the
same as that on the first or preceding appeal, all matters, questions,

29
points, or issues adjudicated on the prior appeal are the law of the or certiorari) in another. The principle applies not only with respect to
case on all subsequent appeals and will not be considered or suits filed in the courts but also in connection with litigations
readjudicated therein. (5 C.J.S. 1267) (Emphasis supplied.) commenced in the courts while an administrative proceeding is
pending, as in this case, in order to defeat administrative processes
In accordance with the general rule stated in Section 1821, where, and in anticipation of an unfavorable administrative ruling and a
after a definite determination, the court has remanded the cause for favorable court ruling. This is specially so, as in this case, where the
further action below, it will refuse to examine question other than court in which the second suit was brought, has no jurisdiction.25
those arising subsequently to such determination and remand, or
other than the propriety of the compliance with its mandate; and if to which contempt is a penalty.26
the court below has proceeded in substantial conformity to the
directions of the appellate court, its action will not be questioned on a As it happened, in its effort to shop for a friendly forum, the private
second appeal. 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
As a general rule a decision on a prior appeal of the same case is applicability as the law of the case.
held to be the law of the case whether that decision is right or wrong,
the remedy of the party deeming himself aggrieved being to seek a As a personal servitude, the right-of-way in question was established by the
rehearing. (5 C.J.S. 1276-77). (Emphasis supplied.) will of the owner.

Questions necessarily involved in the decision on a former appeal In the interesting case of North Negros Sugar Co., Inc. v. Hidalgo,27 this
will be regarded as the law of the case on a subsequent appeal, Court, speaking through Justice Claro Recto, declared that a personal
although the questions are not expressly treated in the opinion of the servitude (also a right of way in that case) is established by the mere
court, as the presumption is that all the facts in the case bearing on "act"28 of the landowner, and is not "contractual in the nature,"29 and a third
the point decided have received due consideration whether all or party (as the petitioner herein is a third party) has the personality to claim its
none of them are mentioned in the opinion. (5 C.J.S. 1286-87). benefits. In his separate opinion, however, Justice Jose Laurel maintained
(Emphasis supplied.)24 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
CA-G.R. No. 13421 is the law of the case because clearly, it was brought to an offer . . . "30 and "[t]here being no offer, there could be no acceptance;
determine the rights of the parties regarding the easement, subject of the hence no contract."31
controversy in this case, although as a petition for "cancellation of
annotation" it may have, at a glance, suggested a different cause of action. 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
And for reasons of fair play, the private respondent can not validly reject CA- politics) to whom present scholars perhaps owe their erudition and who,
G.R. No. 13421 as the law of the case, after all, it was the one that initiated because of the paths they have taken, have shaped history itself; after all,
the cancellation proceedings with the Regional Trial Court in LRC No. 273 and coming back to the case at bar, it is not disputed that an easement has
that precipitated that appeal. In the second place, the proceedings for been constituted, whereas it was disputed in North Negros' case. Rather, the
cancellation of annotation was in fact meant to preempt the injunction question is whether it is still existing or whether it has been extinguished. As
decreed by the lower court in this case. Plainly and simply, the private we held, our findings is that it is in existence and as a consequence, the
respondent is guilty of forum-shopping, as we have described the term: private respondent can not bar the public, by erecting an obstruction on the
alley, from its use.
xxx xxx xxx
WHEREFORE, the petition is GRANTED. The decision of the Court of
There is forum-shopping whenever, as a result of an adverse opinion Appeals is SET ASIDE and the decision of the Regional Trial Court is hereby
in one forum, a party seeks a favorable opinion (other than by appeal REINSTATED. The petitioner and its counsel are hereby required to SHOW

30
CAUSE why they should not be punished for contempt of court, and also petitioners agent, went to the office of respondent Jose C. Campos, Jr., then
administratively dealt with in the case of counsel, for forum shopping. Associate Justice of the Supreme Court, and requested permission from the
latter to enter the subject property and conduct a survey in connection with
IT IS SO ORDERED. the petitioners plan to erect an all-steel transmission line tower on a 24-
square meter area inside the subject property. Respondent Jose Campos,
NATIONAL POWER CORPORATION, petitioner, vs. SPS. JOSE C. Jr., refused to grant the permission and expressed his preference to talk to
CAMPOS, JR. and MA. CLARA LOPEZ-CAMPOS, respondents. the Chief of the Calaca Sub-station or the head of the petitioners Quezon
City office. The respondents did not hear from Mr. Raz or any one from the
petitioners office since then. Sometime in July or August of 1995, the
DECISION petitioners agents again trespassed on the subject property, presenting to
CALLEJO, SR., J.: the respondents caretaker a letter of authority purportedly written by
respondent Jose C. Campos, Jr. When the caretaker demanded that the
letter be given to him for verification with respondent Jose C. Campos, Jr.
This is a petition for review of the Decision[1] dated June 16, 2000 of the
himself, the petitioners agents refused to do so. Consequently, the caretaker
Court of Appeals in CA-G.R. CV No. 54265. The assailed decision
ordered the agents to leave the subject property.[4]
affirmed in toto the Decision[2] of the Regional Trial Court (RTC) of Quezon
City, Branch 98, which ordered petitioner National Power Corporation to pay, The complaint further alleged that on December 12, 1995, the petitioner
among others, actual, moral and nominal damages in the total amount instituted an expropriation case involving the subject property before the RTC
of P1,980,000 to respondents Spouses Jose C. Campos, Jr. and Ma. Clara of Imus, Cavite, Branch 22. The case was docketed as Civil Case No. 1174-
A. Lopez-Campos. 95. The petitioner alleged in its complaint therein that the subject property
was selected in a manner compatible with the greatest public good and the
The petition at bar stemmed from the following antecedents:
least private injury and that it (petitioner) had tried to negotiate with the
On February 2, 1996, the respondents filed with the court a quo an respondents for the acquisition of the right-of-way easement on the subject
action for sum of money and damages against the petitioner. In their property but that the parties failed to reach an amicable settlement.[5]
complaint, the respondents alleged that they are the owners of a parcel of
The respondents maintained that, contrary to the petitioners allegations,
land situated in Bo. San Agustin, Dasmarias, Cavite, consisting of 66,819
there were other more suitable or appropriate sites for the petitioners all-steel
square meters (subject property) covered by Transfer Certificate of Title
transmission lines and that the petitioner chose the subject property in a
(TCT) No. T-957323. Sometime in the middle of 1970, Dr. Paulo C. Campos, whimsical and capricious manner. The respondents averred that the
who was then the President of the Cavite Electric Cooperative and brother of proposed right-of-way was not the least injurious to them as the system
respondent Jose C. Campos, Jr., verbally requested the respondents to grant
design prepared by the petitioner could be further revised to avoid having to
the petitioner a right-of-way over a portion of the subject property.Wooden
traverse the subject property. The respondents vigorously denied negotiating
electrical posts and transmission lines were to be installed for the
with the petitioner in connection with the latters acquisition of a right-of-way
electrification of Puerto Azul. The respondents acceded to this request upon
on the subject property.[6]
the condition that the said installation would only be temporary in nature. The
petitioner assured the respondents that the arrangement would be temporary Finally, the complaint alleged that unaware of the petitioners intention to
and that the wooden electric posts would be relocated as soon as permanent expropriate a portion of the subject property, the respondents sold the same
posts and transmission lines shall have been installed. Contrary to the verbal to Solar Resources, Inc. As a consequence, the respondents stand to lose a
agreement of the parties, however, the petitioner continued to use the substantial amount of money derived from the proceeds of the sale of the
subject property for its wooden electrical posts and transmission lines without subject property should the buyer (Solar Resources, Inc.) decide to annul the
compensating the respondents therefor.[3] sale because of the contemplated expropriation of the subject property. [7]
The complaint likewise alleged that some time in 1994, the petitioners The complaint a quo thus prayed that the petitioner be adjudged liable
agents trespassed on the subject property and conducted engineering to pay the respondents, among others, actual, nominal and moral damages:
surveys thereon. The respondents caretaker asked these agents to leave the
property. Thereafter, in 1995, a certain Mr. Raz, who claimed to be the

31
WHEREFORE, premises considered, it is respectfully prayed that the it from proceeding with the case. On February 13, 1996, the CA dismissed
Honorable Court award the plaintiffs: the petition for certiorari, prohibition and preliminary injunction filed by the
petitioner in CA-G.R. SP No. 41782.
a. Actual damages for the use of defendants property since middle In the meantime, the respondents adduced their evidence ex parte in
1970s, including legal interest thereon, as may be the RTC. As synthesized by the trial court, the respondents adduced
established during the trial; evidence, thus:

b. P1,000,000.00 as nominal damages; From the evidence thus far submitted, it appears that the plaintiffs spouses,
both of whom professional of high standing in society, are the absolute
c. P1,000,000.00 as moral damages; owners of a certain parcel of land situated in Bo. San Agustin, Dasmarias,
Cavite, consisting of 66,819 square meters, more or less, covered and
d. Lost business opportunity as may be established during the trial; embraced in TCT No. T-95732. Sometime in the mid-1970, Dr. Paulo C.
Campos, brother of Justice Jose Campos, Jr., then President of the Cavite
e. P250,000.00 as attorneys fees; Electric Cooperative, approached the latter and confided to him the desire of
the National Power Corporation to be allowed to install temporary wooden
electric posts on the portion of his wifes property in order that the high-
f. Costs of suit.
tension transmission line coming from Kaliraya passing thru that part of
Cavite can be continued to the direction of Puerto Azul.
Plaintiffs pray for other, further and different reliefs as may be just and
equitable under the premises.[8]
Having heard the plea of his brother and the fact that National Power
Corporation was under pressure because at the time that Puerto Azul was
Upon receipt of the summons and complaint, the petitioner moved for being developed there was no electricity nor was there electrical lines
additional time to file its responsive pleading. However, instead of filing an towards that place and acting on the belief that the installation of wooden
answer to the complaint, the petitioner filed a motion to dismiss on the electric posts would be temporary in nature, plaintiffs gave oral permission
ground that the action had prescribed and that there was another action for the NPC personnel to enter the said parcel of land. Dr. Paulo C. Campos,
pending between the same parties for the same cause (litis pendencia). The assured him that it was just a temporary measure to meet the emergency
respondents opposed said motion. On May 2, 1996, the RTC issued an order need of the Puerto Azul and that the wooden electric posts will be relocated
denying the petitioners motion to dismiss. when a permanent posts and transmission lines shall have been
The petitioner then moved for reconsideration of the aforesaid installed. Pursuant to their understanding, the National Power Corporation
order. The respondents opposed the same and moved to declare the installed wooden posts across a portion of plaintiffs property occupying a
petitioner in default on the ground that its motion for reconsideration did not total area of about 2,000 square meters more or less. To date, defendant
have the required notice of hearing; hence, it did not toll the running of the NPC has been using the plaintiffs property for its wooden electrical posts and
reglementary period to file an answer. transmission lines; that the latter has estimated that the aggregate rental
(which they peg at the conservative rate of P1.00 per square meter) of the
On July 15, 1996, the RTC issued an order denying the petitioners 2,000 square meters for twenty-four (24) years period, would amount to the
motion for reconsideration. Subsequently, on July 24, 1996, it issued another aggregate sum of P480,000.00.
order granting the respondents motion and declared the petitioner in default
for its failure to file an answer. The petitioner filed a motion to set aside the From the time National Power Corporation installed those temporary wooden
order of default but the same was denied by the RTC. posts, no notice was ever served upon the plaintiffs of their intention to
The petitioner filed a petition for certiorari, prohibition and preliminary relocate the same or to install permanent transmission line on the
injunction with the Court of Appeals, docketed as CA-G.R. SP No. 41782, property. Also, there was no personal contact between them. However, in
assailing the May 2, 1996, July 15, 1996 and July 24, 1996 Orders issued by late 1994, plaintiffs overseer found a group of persons of the defendant NPC
the RTC as having been issued with grave abuse of discretion and to enjoin conducting survey inside the said property, and were asked to leave the

32
premises upon being discovered that they have no authority to do so from falsehood nor shall mislead or misrepresent the contents of its pleading. That
the owners thereof. Subsequently thereafter, or sometime in 1995, a person gross misrepresentation had been made by the National Power Corporation
by the name of Mr. Paz, bearing a letter from Calaca Regional Office, went to in their said pleading is irrefutable.
see Justice Jose C. Campos, Jr. in his office, informing the latter that he was
authorized by the National Power Corporation to acquire private lands. In the Plaintiffs-spouses Campos declared that there are other areas more suitable
same breath, Mr. Paz requested his permission to let NPC men enter the or appropriate that can be utilized as alternative sites for the all-steel
subject property and to conduct a survey in connection with its plan to erect transmission line tower. Just a few meters from the planned right-of-way is
an all steel transmission line tower on a 24 square meter area inside plaintiffs an abandoned road occupied by squatters; it is a government property and
property, but same was denied. Justice Campos, however, expressed his the possession of which the NPC need not compensate. The latter had not
preference to talk instead to the Chief of the Calaca Sub-station or the Head exercised judiciously in the proper selection of the property to be
of the NPC, Quezon City office. Since then, nothing however transpired. appropriated. Evidently, NPCs choice was whimsical and capricious. Such
arbitrary selection of plaintiffs property despite the availability of another
Sometime in July or August 1995, plaintiffs learned that defendants agents property in a manner compatible with the greatest public good and the least
again entered the subject property. This time, they have presented to the private injury, constitutes an impermissible encroachment of plaintiffs
caretaker a letter of authority supposedly from Justice Jose C. Campos, proprietary rights and their right to due process and equal protection.
Jr. And, when prodded to see the letter for verification, defendants agents
refused to do so. So, they were ordered out of the vicinity. Plaintiffs stressed Concededly, NPCs intention is to expropriate a portion of plaintiffs
that defendants repeated intrusions into their property without their property. This limitation on the right of ownership is the paramount right of
expressed knowledge and consent had impugned on their constitutional right the National Power Corporation granted by law. But before a person can be
to protection over their property. deprived of his property through the exercise of the power of eminent
domain, the requisites of law must strictly be complied with. (Endencia vs.
Later, on December 12, 1995, plaintiffs received copy of summons and Lualhati, 9 Phil. 177) No person shall be deprived of his property except by
complaint in Civil Case No. 1174-95 filed by the defendant before the competent authority and for public use and always upon payment of just
Regional Trial Court, Fourth Judicial Region, Branch 22, Imus, Cavite for the compensation. Should this requirement be not first complied with, the courts
expropriation of 5,320 square meters of plaintiffs above-described property to shall protect and, in a proper case, restore the owner in his possession. (Art.
be used as right-of-way for the all-steel transmission line tower of the Calaca- 433 Civil Code of the Philippines)
Dasmarias 230 KV T/L Project. But what had caused plaintiffs discomfiture is
the allegation in said complaint stating that the parcel of land sought to be Records disclose that in breach of such verbal promise, defendant NPC had
expropriated has not been applied to nor expropriated for any public use and not withdrawn the wooden electrical posts and transmission lines; said
is selected by plaintiff in a manner compatible with the greatest good and the wooden electrical posts and transmission lines still occupy a portion of
least private injury and that defendant had negotiated with (plaintiffs) for the plaintiffs property; that the NPC had benefited from them for a long period of
acquisition of the right-of-way easement over the portion of the same for the time already, sans compensation to the owners thereof.
public purpose as above-stated at a price prescribed by law, but failed to
reach an agreement with them notwithstanding the repeated negotiations
Without first complying with the primordial requisites appurtenant to the
between the parties. exercise of the power of eminent domain, defendant NPC again boldly
intruded into plaintiffs property by conducting engineering surveys with the
Plaintiffs assert that at no instance was there a negotiation between them end in view of expropriating 5,320 square meters thereof to be used as right-
and the NPC or its representative. The alleged talk initiated by Mr. Paz with of-way for the all-steel transmission line tower of the Calaca-Dasmarias 230
Justice Campos, Jr. just ended in the latters remonstrance and in prevailing KV T/L Project. Such acts constitute a deprivation of ones property for public
upon the former of his preference to discuss the matter with a more use without due compensation. It would therefore seem that the expropriation
responsible officer of the National Power Corporation, such as the Chief of had indeed departed from its own purpose and turns out to be an instrument
the Calaca Sub-Station or the Head of NPCs Office in Quezon City. But to repudiate compliance with obligation legally and validly contracted. [9]
plaintiffs plea just fell on the deaf ear. The next thing they know was Civil
Case No. Q-1174-95 already filed in court. A party to a case shall not do

33
On September 26, 1996, the RTC rendered a decision finding the The petitioner now comes to this Court seeking to reverse and set aside
petitioner liable for damages to the respondents. The dispositive portion of the assailed decision. The petitioner alleges as follows:
the RTC decision reads:
I
WHEREFORE, in view of the foregoing consideration, justment [sic] is
hereby rendered in favor of the plaintiffs, condemning the defendant to pay The Court of Appeals grievously erred and labored under a gross
misapprehension of fact in finding that the Complaint below should not be
dismissed on the ground of prescription.
(a) Actual damages of P480,000.00 for the use of plaintiffs
property;
II
(b) One Million Pesos (P1,000,000.00) as moral damages;
The Court of Appeals erred in affirming the award of nominal and moral
damages, attorneys fees and costs of litigation.[11]
(c ) Five Hundred Thousand Pesos (P500,000.00) as nominal
damages;
Citing Article 620 of the Civil Code, the petitioner contends that it had
already acquired the easement of right-of-way over the portion of the subject
(d) One Hundred Fifty Thousand Pesos (P150,000.00) as attorneys property by prescription, the said easement having been allegedly
fees; and continuous and apparent for a period of about twenty-three (23) years, i.e.,
from about the middle of 1970 to the early part of 1994. The petitioner further
(e) Costs of suit in the amount of P11,239.00. invokes Section 3(i) of its Charter in asserting that the respondents already
waived their right to institute any action for compensation and/or damages
SO ORDERED.[10] concerning the acquisition of the easement of right-of-way in the subject
property. Accordingly, the petitioner concludes that the award of damages in
The petitioner appealed the decision to the Court of Appeals which on favor of the respondents is not warranted.
June 16, 1990 rendered a decision affirming the ruling of the RTC. The petition is bereft of merit.
Essentially, the CA held that the respondents claim for compensation The petitioners claim that, under Article 620 of the Civil Code, it had
and damages had not prescribed because Section 3(i) of the petitioners already acquired by prescription the easement of right-of-way over that
Charter, Republic Act No. 6395, as amended, is not applicable to the portion of the subject property where its wooden electric posts and
case.The CA likewise gave scant consideration to the petitioners claim that transmission lines were erected is untenable. Article 620 of the Civil Code
the respondents complaint should be dismissed on the ground of litis provides that:
pendencia. According to the CA, the complaint a quo was the more
appropriate action considering that the venue for the expropriation case (Civil
Case No. 1174-95) was initially improperly laid. The petitioner filed the Art. 620. Continuous and apparent easements are acquired either by virtue
expropriation proceedings with the RTC in Imus, Cavite, when the subject of a title or by prescription of ten years.
property is located in Dasmarias, Cavite. Moreover, the parties in the two
actions are not the same since the respondents were no longer included as Prescription as a mode of acquisition requires the existence of the
defendants in the petitioners amended complaint in the expropriation case following: (1) capacity to acquire by prescription; (2) a thing capable of
(Civil Case No. 1174-95) but were already replaced by Solar Resources, Inc., acquisition by prescription; (3) possession of the thing under certain
the buyer of the subject property, as defendant therein. conditions; and (4) lapse of time provided by law.[12] Acquisitive prescription
may either be ordinary, in which case the possession must be in good faith
The CA likewise found the damages awarded by the RTC in favor of the and with just title,[13] or extraordinary, in which case there is neither good faith
respondents just and reasonable under the circumstances obtaining in the nor just title. In either case, there has to be possession which must be in the
case. concept of an owner, public, peaceful and uninterrupted.[14] As a corollary,
Article 1119 of the Civil Code provides that:
34
Art. 1119. Acts of possessory character executed in virtue of license or by possessory character which are merely tolerated by the possessor, which are
mere tolerance of the owner shall not be available for the purposes of or due to his license (Civil Code, arts. 444 and 1942). This principle is
possession. applicable not only with respect to the prescription of the dominium as a
whole, but to the prescription of right in rem. In the case of Cortes vs.
In this case, the records clearly reveal that the petitioners possession of Palanca Yu-Tibo (2 Phil. Rep., 24, 38), the Court said:
that portion of the subject property where it erected the wooden posts and
transmission lines was merely upon the tolerance of the The provision of article 1942 of the Civil Code to the effect that acts which
respondents.Accordingly, this permissive use by the petitioner of that portion are merely tolerated produce no effect with respect to possession is
of the subject property, no matter how long continued, will not create an applicable as much to the prescription of real rights as to the prescription of
easement of right-of-way by prescription. The case of Cuaycong vs. the fee, it being a glaring and self-evident error to affirm the contrary, as does
Benedicto[15] is particularly instructive. In that case, the plaintiffs for more the appellant in his motion papers. Possession is the fundamental basis of
than twenty years made use of the road that passed through the hacienda prescription. Without it no kind of prescription is possible, not even the
owned by the defendants, being the only road that connected the plaintiffs extraordinary. Consequently, if acts of mere tolerance produce no effect with
hacienda to the public road. The defendants closed the road in question and respect to possession, as that article provides, in conformity with article 444
refused the use of the same unless a toll was paid. The plaintiffs therein of the same Code, it is evident that they can produce no effect with respect to
brought an action to enjoin the defendants from interfering with the use of the prescription, whether ordinary or extraordinary. This is true whether the
road.In support of their action, the plaintiffs presented evidence tending to prescriptive acquisition be of a fee or of real rights, for the same reason holds
show that they have acquired the right-of-way through the road by in one and the other case; that is, that there has been no true possession in
prescription. This Court rejected the contention, holding as follows: the legal sense of the word. (Citations omitted)

Had it been shown that the road had been maintained at the public expense, Possession, under the Civil Code, to constitute the foundation of a
with the acquiescence of the owners of the estates crossed by it, this would prescriptive right, must be possession under claim of title (en concepto de
indicate such adverse possession by the government as in course of time dueo), or to use the common law equivalent of the term, it must
would ripen into title or warrant the presumption of a grant or of a be adverse. Acts of possessory character performed by one who holds by
dedication. But in this case there is no such evidence, and the claims of mere tolerance of the owner are clearly not en concepto de dueo, and such
plaintiffs, whether regarded as members of the public asserting a right to use possessory acts, no matter how long so continued, do not start the running of
the road as such, or as persons claiming a private easement of way over the the period of prescription.[16]
land of another must be regarded as resting upon the mere fact of user.
Following the foregoing disquisition, the petitioners claim that it had
If the owner of a tract of land, to accommodate his neighbors or the public in acquired the easement of right-of-way by prescription must perforce fail. As
general, permits them to cross his property, it is reasonable to suppose that it intimated above, possession is the fundamental basis of prescription,
is not his intention, in so doing, to divest himself of the ownership of the land whether ordinary or extraordinary. The petitioner never acquired the requisite
so used, or to establish an easement upon it, and that the persons to whom possession in this case. Its use of that portion of the subject property where it
such permission, tacit or express, is granted, do not regard their privilege of erected the wooden poles and transmission lines was due merely to the tacit
use as being based upon anything more than the mere tolerance of the license and tolerance of the respondents. As such, it cannot be made the
owner. Clearly, such permissive use is in its inception based upon an basis of the acquisition of an easement of right-of-way by prescription.
essentially revocable license. If the use continues for a long period of time,
no change being made in the relations of the parties by any express or Neither can the petitioner invoke Section 3(i) of its Charter (Rep. Act No.
implied agreement, does the owner of the property affected lose his right of 6395, as amended) to put up the defense of prescription against the
revocation? Or, putting the same question in another form, does the mere respondents. The said provision reads in part:
permissive use ripen into title by prescription?
Sec. 3(i). The Corporation or its representatives may also enter upon private
It is a fundamental principle of the law in this jurisdiction concerning the property in the lawful performance or prosecution of its business or purposes,
possession of real property that such possession is not affected by acts of a including the construction of transmission lines thereon; Provided, that the

35
owner of such private property shall be paid the just compensation therefor in the government should pay for private property which it appropriates though
accordance with the provisions hereinafter provided; Provided, further, that for the benefit of the public, regardless of the passing of time. But the
any action by any person claiming compensation and/or damages shall be rationale in that case is that where private property is taken by the
filed within five years after the right-of-way, transmission lines, substations, Government for public use without first acquiring title thereto either through
plants or other facilities shall have been established: Provided, finally, that expropriation or negotiated sale, the owners action to recover the land or the
after the said period no suit shall be brought to question the said right-of-way, value thereof does not prescribe. This is the point that has been overlooked
transmission lines, substations, plants or other facilities nor the amounts of by both parties.
compensation and/or damages involved;
On the other hand, where private property is acquired by the Government
Two requisites must be complied before the above provision of law may and all that remains is the payment of the price, the owners action to collect
be invoked: the price must be brought within ten years otherwise it would be barred by
the statue of limitations.[18]
1. The petitioner entered upon the private property in the lawful
performance or prosecution of its businesses or purposes; and
Thus, the five-year period provided under Section 3(i) of Rep. Act No.
2.The owner of the private property shall be paid the just 6395, as amended, within which all claims for compensation and/or damages
compensation therefor. may be allowed against the petitioner should be reckoned from the time that
it acquired title over the private property on which the right-of-way is sought
As correctly asserted by the respondents, Section 3(i) of Rep. Act No. to be established. Prior thereto, the claims for compensation and/or damages
6395, as amended, presupposes that the petitioner had already taken the do not prescribe. In this case, the findings of the CA is apropos:
property through a negotiated sale or the exercise of the power of eminent
domain, and not where, as in this case, the petitioner was merely temporarily
Undeniably, NPC never acquired title over the property over which its
allowed to erect wooden electrical posts and transmission lines on the
wooden electrical posts and transmission lines were erected. It never filed
subject property. Significantly, the provision uses the term just compensation,
expropriation proceedings against such property. Neither did it negotiate for
implying that the power of eminent domain must first be exercised by the
the sale of the same. It was merely allowed to temporarily enter into the
petitioner in accordance with Section 9, Article III of the Constitution, which
premises. As NPCs entry was gained through permission, it had no intention
provides that no private property shall be taken for public use without just
to acquire ownership either by voluntary purchase or by the exercise of
compensation.
eminent domain.[19]
This Courts ruling in Lopez vs. Auditor General[17] is likewise in point:
The petitioner instituted the expropriation proceedings only on
The petitioner brought this case to this Court on the sole issue of December 12, 1995. Indisputably, the petitioner never acquired title to that
prescription. He cites Alfonso vs. Pasay City in which a lot owner was portion of the subject property where it erected the wooden electrical posts
allowed to bring an action to recover compensation for the value of his land, and transmission lines. Until such time, the five-year prescriptive period
which the Government had taken for road purposes, despite the lapse of within which the respondents right to file an action to claim for compensation
thirty years (1924-1954). On the other hand, the respondents base their and/or damages for the petitioners use of their property does not even
defense of prescription on Jaen vs. Agregado which held an action for commence to run. The CA thus correctly ruled that Section 3(i) of Rep. Act
compensation for land taken in building a road barred by prescription No. 6395, as amended, finds no application in this case and that the
because it was brought after more than ten years (i.e., thirty three years, respondents action against the petitioner has not prescribed.
from 1920 to 1953). They argue that the ruling in Alfonso cannot be applied
With respect to the damages awarded in favor of the respondents, the
to this case because, unlike Alfonso who made repeated demands for
petitioner avers, thus:
compensation within ten years, thereby interrupting the running of the period
of prescription, the petitioner here filed his claim only in 1959. The Court of Appeals erred in
affirming the award of nominal
It is true that in Alfonso vs. Pasay City this Court made the statement that and moral damages, attorneys
registered lands are not subject to prescription and that on grounds of equity, fees and costs of litigation.
36
It follows from Section 31(c) of R.A. 6395 that the award moral and nominal On the award of nominal damages, such are adjudicated in order that a right
damages, as well as attorneys fees and costs are baseless. The right to of the plaintiff, which has been violated or invaded by the defendant, may be
claim them has likewise prescribed.[20] vindicated or recognized, and not for the purpose of indemnifying the plaintiff
for any loss suffered by him. As previously discussed, it does not brood well
With our ruling that the claims of the respondents had not prescribed, for a government entity such as NPC to disregard the tenets of private
the petitioners contention that the respondents are not entitled to moral and property enshrined in the Constitution. NPC not only intentionally trespassed
nominal damages and attorneys fees must fail. In affixing the award for moral on appellees property and conducted engineering surveys thereon but also
and nominal damages and attorneys fees, the CA ratiocinated: sought to fool the appellees caretaker by claiming that such entry was
authorized. Moreover, NPC even justifies such trespass as falling under its
right to expropriate the property. Under the circumstances, the award of
With respect to the fourth assignment of error, this Court is not persuaded to
reverse much less modify the court a quos findings. nominal damages is sustained.

An award of moral damages would require certain conditions to be met, to That NPCs highhanded exercise of its right of eminent domain constrained
wit: (1) first, there must be an injury, whether physical, mental or the appellees to engage the services of counsel is obvious. As testified upon,
the appellees engaged their counsel for an agreed fee of P250,000.00. The
psychological, clearly sustained by the claimant; (2) second, there must be a
trial court substantially reduced this to P150,000.00. Inasmuch as such
culpable act or omission factually established; (3) third, the wrongful act or
services included not only the present action but also those for Civil Case
omission of the defendant is the proximate cause of the injury sustained by
No. 1174-95 erroneously filed by NPC with the Regional Trial Court of Imus,
the claimant; and (4) fourth, the award of damages is predicated on any of
the cases stated in Article 2219 of the Civil Code. Cavite, and the Petition for Certiorari in CA-GR No. 41782, this Court finds
such attorneys fees to be reasonable and equitable.[21]
NPC made it appear that it negotiated with the appellees when no actual
We agree with the CA.
negotiations took place. This allegation seriously affected the on-going sale
of the property to Solar Resources, Inc. as appellees seemed to have sold The award of moral damages in favor of the respondents is proper given
the property knowing fully well that a portion thereof was being the circumstances obtaining in this case. As found by the CA:
expropriated. Such an act falls well within Article 21 of the Civil Code. NPCs
subterfuge certainly besmirched the reputation and professional standing of NPC made it appear that it negotiated with the appellees when no actual
Justice Jose C. Campos, Jr. and Professor Maria Clara A. Lopez-Campos, negotiation took place. This allegation seriously affected the on-going sale of
and caused them physical suffering, mental anguish, moral shock and the property to Solar Resources, Inc. as appellees seemed to have sold the
wounded feelings. property knowing fully well that a portion thereof was being
expropriated. Such an act falls well within Article 21 of the Civil Code. NPCs
The records show that Justice Campos career included, among other[s], subterfuge certainly besmirched the reputation and professionally standing of
being a Professor of Law at the University of the Philippines; Acting Justice Jose C. Campos, Jr. and Professor Maria Clara A. Lopez-Campos,
Chairman of the Board of Transportation; Presiding Judge of the Court of and caused them physical suffering, mental anguish, moral shock and
First Instance of Pasay City, and Associate Justice of the Court of wounded feelings.
Appeals. Such career reached its apex when he was appointed Associate
Justice of the Supreme Court in 1992. Justice Campos was a member of the The records show that Justice Campos career included, among other[s],
Judicial and Bar Council when NPC filed its Civil Case No. 1174- being a Professor of Law at the University of the Philippines; Acting
95. Professor Maria Clara A. Lopez-Campos is a noted authority in Corporate Chairman of the Board of Transportation; Presiding Judge of the Court of
and Banking Laws and is a Professor Emerita of the University of the First Instance of Pasay City, and Associate Justice of the Court of
Philippines from 1981 to the present. She had taught more than three Appeals. Such career reached its apex when he was appointed Associate
decades at the College of Law. Against such backdrop, it does not take too Justice of the Supreme Court in 1992. Justice Campos was a member of the
much imagination to conclude that the oppressive and wanton manner in Judicial and Bar Council when NPC filed its Civil Case No. 1174-
which NPC sought to exercise its statutory right of eminent domain warranted 95. Professor Maria Clara A. Lopez-Campos is a noted authority in Corporate
the grant of moral damages.
37
and Banking Laws and is a Professor Emerita of the University of the adjacent lot, had acquired by prescription an enforceable easement of light
Philippines from 1981 to the present. She had taught more than three and view arising from a verbal prohibition to obstruct such view and light,
decades at the College of Law. Against such backdrop, it does not take too alleged to have been made upon petitioner's
much imagination to conclude that the oppressive and wanton manner in predecessor-in-interest as owner of the adjoining lot, both of which lots being
which NPC sought to exercise its statutory right of eminent domain warranted covered by Torrens titles. Both the trial court and the Court of Appeals are of
the grant of moral damages.[22] the view and so declared that respondents Javier et al., did acquire such
easement and gave judgment accordingly. Hence, petitioner has come to us
Further, nominal damages are adjudicated in order that a right of the seeking review, alleging that both courts are in error.
plaintiff, which has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of indemnifying the plaintiff The windows in question are admittedly in respondents' own building erected
for any loss suffered by him.[23] Similarly, the court may award nominal on their own lot. The easement, if there is any, is therefore a negative
damages in every case where any property right has been invaded. [24] The one.1 The alleged prohibition having been avowedly made in 1913 or 1914,
petitioner, in blatant disregard of the respondents proprietary right, before the present Civil Code took effect, the applicable legal provision is
trespassed the subject property and conducted engineering surveys Article 538 of the Spanish Civil Code which provides:
thereon. It even attempted to deceive the respondents caretaker by claiming
that its agents were authorized by the respondents to enter the property Art. 538. In order to acquire by prescription the easements referred
when in fact, the respondents never gave such authority. Under the to in the next preceding article, the time of the possession shall be
circumstances, the award of nominal damages is likewise warranted. computed, ... in negative easements, from the day on which the
Finally, the award of attorneys fees as part of damages is deemed just owner of the dominant estate has, by a formal act, forbidden the
and equitable considering that by the petitioners unjustified acts, the owner of the servient estate to perform any act which would be lawful
respondents were obviously compelled to litigate and incur expenses to without the easement. (Emphasis supplied.)
protect their interests over the subject property.[25]
As may be seen, the only question hinges on the interpretation of the phrase
WHEREFORE, the petition is hereby DENIED for lack of merit. The "a formal act". The lower court and the Court of Appeals considered any
assailed Decision dated June 16, 2000 of the Court of Appeals in CA-G.R. prohibition made by the owner of the dominant estate, be it oral or written,
CV No. 54265 is AFFIRMED in toto. sufficient compliance with the law. The Court of Appeals declared:
SO ORDERED.
In the light of the foregoing decisions, (Cortes vs. Yu Tibo, 2 Phil., 26
and the decisions of the Supreme Court of Spain therein cited), we
LAUREANA A. CID, petitioner,
agree with the trial court that the "formal act" of prohibition
vs.
contemplated by Art. 538 of the old Civil Code may be either a
IRENE P. JAVIER, MANUEL P. JAVIER, JOSEFINA P. JAVIER,
FERNANDO P. JAVIER, JOSE P. JAVIER, GUILLERMO P. JAVIER, written or verbal act. The decisions of the Supreme Court of Spain
ISIDORA P. JAVIER, BENJAMIN P. JAVIER, and LEONOR above-quoted do not at all mention written but merely some act of
CRISOLOGO, respondents. prohibition. . . . .

We are inclined to take the contrary view. The law is explicit. It requires
Antonio V. Raquiza for petitioner.
not any form of prohibition, but exacts, in a parenthetical expression, for
Cesar D. Javier for respondents.
emphasis, the doing not only of a specific, particular act, but a formal act.
The following definitions are pertinent:
BARRERA, J.:
Formalor pertaining to form, characterized by one due form or
The legal issue presented in this petition to review by certiorari a decision of order, done in due form with a solemnity regular; relating to matters
the Court of appeals, is whether the respondents Irene P. Javier, et al., of form. (C. J. S. vol. 37, p. 115.)
owners of a building standing on their lot with windows overlooking the
38
ActIn civil law, a writing which states in legal form that a thing has
been done, said or agreed. (1 Bouvier's Law Dictionary, p. 150, citing
Marlin Report.)
RESOLUTION
From these definitions, it would appear that the phrase "formal act" would
require not merely any writing, but one executed in due form and/or with
solemnity. That this is the intendment of the law although not expressed in January 20, 1961
exact language is the reason for the clarification2 made in Article 621 of the
new Civil Code which specifically requires the prohibition to be in "an
instrument acknowledged before a notary public". This is as it should be. BARRERA, J.:
Easements are in the nature of an encumbrance on the servient estate. They
constitute a limitation of the dominical right of the owner of the subjected The Decision in this case, promulgated on June 30, 1960, provided, among
property. Hence, they can be acquired only by title and by prescription, in the others, for the lifting of the preliminary injunction issued by the lower court
case of positive easement, only as a result of some sort of invasion, apparent directed against petitioner's construction of a building allegedly being made
and continuous, of the servient estate. By the same token, negative in violation of Municipal Ordinance No. 3, series of 1909 of the municipality of
easements can not be acquired by less formal means. Hence, the Laoag, and in disregard of respondents' right to light and view.
requirement that the prohibition (the equivalent of the act of invasion) should
be by "a formal act", "an instrument acknowledged before a notary public." In their motion for reconsideration timely presented, respondents claim that
the findings of the lower court, affirmed by the Court of Appeals, that the
The Court of Appeals found as undisputed the fact 'that plaintiffs' lot building under construction violated the aforementioned ordinance (from
(dominant) as well as defendant's lot (servient) are covered by Original which no appeal was interposed) having become final, justify the issuance of
Certificates of Title Nos. 7225 and 7545, respectively", both issued by the and making permanent the injunction already issued.
Register of Deeds of Ilocos Norte, in pursuance of the decrees of registration
issued on December 27, 1937, in Cadastral Case No. 51, G.L.R.O. Cadastral There is no question that respondents' house, as well as that of petitioner,
Record No. 1212 of Laoag, Ilocos Norte. Certified copies of these certificates are within their respective properties; that respondents' wall stands only 50
of title are found as Annexes "A" and "B", pages 77 to 80 inclusive of the centimeters from the boundary of the 2 lots, whereas, the wall of the
Record on Appeal. In both of them, it does not appear any annotation in petitioner's building was constructed 1 meter from the boundary or 1 meter
respect to the easement supposedly acquired by prescription which, counting and 50 centimeters from the wall of the house of respondents. As a result,
the twenty (20) years from 1913 or 1914, would have already ripened by the lower court found that the eaves of the two houses overlap each other by
1937, date of the decrees of registration. Consequently, even 24 centimeters. This, the Court of Appeals declared to be violative of
conceding arguendo that such an easement has been acquired, it had been Ordinance No. 3, series of 1903, amending Sections 1, 5, 6, and 13 of the
cut off or extinguished by the registration of the servient estate under the Municipal Ordinance of June 3, 1903, which requires a distance of 2 meters,
Torrens System without the easement being annotated on the corresponding measured from eaves to eaves of adjoining buildings of strong materials.
certificate of title, pursuant to Section 39 of the Land Registration Act.3
It must be noted, however, that the Ordinance in question was adopted since
Wherefore, the decision of the Court of Appeals appealed from is hereby 1909 and was, therefore, already in force at the time the house of
reversed; the injunction issued herein dissolved; and the case remanded to respondents was reconstructed in 1946 after the building originally erected
the court of origin for adjudication of the damages, if any, occasioned by the thereon was burned in 1942. If respondents constructed their house at least
issuance of the injunction. Without pronouncement as to costs. So ordered. one meter from the boundary line, as petitioner has constructed hers, there
would be no overlapping of the eaves and there would not be any violation of
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, the ordinance. As things now stand, in view of such construction by the
Reyes, J. B. L., and Gutierrez David, JJ., concur. respondents, the overlapping of the eaves and the consequential violation of
the ordinance can not entirely be attributed to petitioner, as to require her
alone to make the adjustments necessary for the observance of the 2-meter
39
eaves-to-eaves distance from her neighbors. If any compliance with the When Magdaleno Valdez, Sr. passed away in 1948, herein private
ordinance would be made not only by petitioner, but also by the respondents. respondents inherited the land. However, unknown to them, Bomedco was
There is, therefore, no reason for the continuation of the injunction. able to have the disputed middle lot which was occupied by the railroad
tracks placed in its name in the Cadastral Survey of Medellin, Cebu in 1965.
In view of the foregoing, and as the other grounds respondents' motion for The entire subject land was divided into three, namely, Cadastral Lot Nos.
reconsideration had been already duly considered in the Decision, the said 953, 954 and 955. Lot Nos. 953 and 955 remained in the name of private
motion is hereby denied, for lack of merit. So ordered. respondents. However, Lot No. 954, the narrow lot where the railroad tracks
lay, was claimed by Bomedco as its own and was declared for tax purposes
Paras, C. J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. in its name. [5]
L., Gutierrez David, Paredes, and Dizon, JJ., concur. It was not until 1989 when private respondents discovered the
aforementioned claim of Bomedco on inquiry with the Bureau of
BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF Lands. Through their lawyer, they immediately demanded the legal basis for
APPEALS AND HEIRS OF MAGDALENO VALDEZ Bomedco's claim over Cadastral Lot No. 954 but their letter of inquiry
SR., respondents. addressed to petitioner went unheeded, as was their subsequent demand for
payment of compensation for the use of the land.[6]
DECISION On June 8, 1989, respondent heirs filed a Complaint for Payment of
CORONA, J.: Compensation and/or Recovery of Possession of Real Property and
Damages with Application for Restraining Order/Preliminary Injunction
against Bomedco before the Regional Trial Court of Cebu.[7] Respondent
This is an appeal by certiorari under Rule 45 of the Rules of Court
heirs alleged that, before she sold the land to Valdez, Sr. in 1935, Santillan
seeking to annul and set aside the decision[1] dated November 17, 1995 of
granted Bomedco, in 1929, a railroad right of way for a period of 30 years.
the Court of Appeals, Tenth Division, which reversed the decision [2] dated
When Valdez, Sr. acquired the land, he respected the grant. The right of way
November 27, 1991 of the Regional Trial Court of Cebu City, Branch IX,
expired sometime in 1959 but respondent heirs allowed Bomedco to continue
which ruled in favor of herein petitioner, Bogo-Medellin Milling Company, Inc.
using the land because one of them was then an employee of the
and dismissed herein private respondents' complaint for payment of
company.[8]
compensation and/or recovery of possession of real property and damages
with application for restraining order or preliminary injunction; and its In support of the complaint, they presented an ancient document an
resolution dated March 2, 1996 denying petitioner's motion for original copy of the deed of sale written in Spanish and dated December 9,
reconsideration. 1935[9] to evidence the sale of the land to Magdaleno Valdez, Sr.; several
original real estate tax receipts[10] including Real Property Tax Receipt No.
The antecedent facts follow.
3935[11] dated 1922 in the name of Graciano de los Reyes, husband of
Magdaleno Valdez, Sr., father of herein private respondents Sergio Feliciana Santillan, and Real Property Tax Receipt No. 09491 [12]dated 1963
Valdez, Angelina Valdez-Novabos, Teresita Argawanon-Mangubat and in the name of Magdaleno Valdez, Sr. Magdaleno Valdez, Jr. also testified
Daylinda Argawanon-Melendres (hereafter the heirs), purchased from for the plaintiffs during the trial.
Feliciana Santillan, on December 9, 1935, a parcel of unregistered land
On the other hand, Bomedcos principal defense was that it was the
covered by Tax Declaration No. 3935 with an area of one hectare, 34 ares
owner and possessor of Cadastral Lot No. 954, having allegedly bought the
and 16 centares, located in Barrio Dayhagon, Medellin, Cebu. [3] He took
same from Feliciana Santillan in 1929, prior to the sale of the property by the
possession of the property and declared it for tax purposes in his name.[4]
latter to Magdaleno Valdez, Sr. in 1935. It also contended that plaintiffs claim
Prior to the sale, however, the entire length of the land from north to was already barred by prescription and laches because of Bomedcos open
south was already traversed in the middle by railroad tracks owned by and continuous possession of the property for more than 50 years.
petitioner Bogo-Medellin Milling Co., Inc. (hereafter Bomedco). The tracks
Bomedco submitted in evidence a Deed of Sale[13] dated March 18,
were used for hauling sugar cane from the fields to petitioners sugar mill.
1929; seven real estate tax receipts[14] for the property covering the period
from 1930 to 1985; a 1929 Survey Plan of private land for Bogo-Medellin
40
Milling Company;[15] a Survey Notification Card;[16] Lot Data Computation for land had been continuously occupying said easement [sic]. Thus, defendant
Lot No. 954;[17] a Cadastral Map for Medellin Cadastre[18] as well as the Bomedcos apparent and continuous possession of said strip of land in good
testimonies of Vicente Basmayor, Geodetic Engineer and property custodian faith for more than ten (10) years had made defendant owner of said strip of
for Bomedco, and Rafaela A. Belleza, Geodetic Engineer and Chief of the land traversed by its railway tracks.
Land Management Services of the DENR, Region VIII.
In its decision dated November 27, 1991, the trial court [19] rejected Respondent heirs elevated the case to the Court of Appeals which
Bomedco's defense of ownership on the basis of a prior sale, citing that its found that Bomedco did not acquire ownership over the lot. It consequently
evidence a xerox copy of the Deed of Sale dated March 18, 1929 was reversed the trial court. In its decision dated November 17, 1995, the
inadmissible and had no probative value. Not only was it not signed by the appellate court held that Bomedco only acquired an easement of right of way
parties but defendant Bomedco also failed to present the original copy by unopposed and continuous use of the land, but not ownership, under
without valid reason pursuant to Section 4, Rule 130 of the Rules of Court. [20] Article 620 of the Civil Code.

Nonetheless, the trial court held that Bomedco had been in possession The appellate court further ruled that Bomedcos claim of a prior sale to it
of Cadastral Lot No. 954 in good faith for more than 10 years, thus, it had by Feliciana Santillan was untrue. Its possession being in bad faith, the
already acquired ownership of the property through acquisitive prescription applicable prescriptive period in order to acquire ownership over the land
under Article 620 of the Civil Code. It explained: was 30 years under Article 1137 of the Civil Code. Adverse possession of the
property started only in 1965 when Bomedco registered its claim in the
cadastral survey of Medellin. Since only 24 years from 1965 had elapsed
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT when the heirs filed a complaint against Bomedco in 1989, Bomedcos
easements can be acquired by prescription after ten (10) years. The possession of the land had not yet ripened into ownership.
apparent characteristic of the questioned property being used by defendant
as an easement is no longer at issue, because plaintiffs themselves had And since there was no showing that respondent heirs or their
acknowledged that the existence of the railway tracks of defendant Bomedco predecessor-in-interest was ever paid compensation for the use of the land,
was already known by the late Magdaleno Valdez, herein plaintiffs the appellate court awarded compensation to them, to be computed from the
predecessor-in-interest, before the late Magdaleno Valdez purchased in time of discovery of the adverse acts of Bomedco.
1935 from the late Feliciana Santillan the land described in the Complaint
where defendants railway tracks is traversing [sic] (TSN of February 5, 1991, Its motion for reconsideration having been denied by the appellate court
pp. 7-8). As to the continuity of defendants use of the strip of land as in its resolution dated March 22, 1996, Bomedco now interposes before us
easement is [sic] also manifest from the continuous and uninterrupted this present appeal by certiorari under Rule 45, assigning the following
occupation of the questioned property from 1929 up to the date of the filing of errors:
the instant Complaint. In view of the defendants UNINTERRUPTED I
possession of the strip of land for more than fifity (50) years, the Supreme
Courts ruling in the case of Ronquillo, et al. v. Roco, et al. (103 Phil 84) is not
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT
applicable. This is because in said case the easement in question was a strip
REVERSED AND SET ASIDE THE TRIAL COURTS DECISION
of dirt road whose possession by the dominant estate occurs only everytime
DISMISSING PRIVATE RESPONDENTS COMPLAINT.
said dirt road was being used by the dominant estate. Such fact would
necessarily show that the easements possession by the dominant estate was
never continuous. In the instant case however, there is clear continuity of II
defendants possession of the strip of land it had been using as railway
tracks. Because the railway tracks which defendant had constructed on the THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT
questioned strip of land had been CONTINUOUSLY occupying said ORDERED THE PETITIONER TO PAY THE PRIVATE RESPONDENT THE
easement. Thus, defendant Bomedcos apparent and continuous possession REASONABLE VALUE OF LOT 954 AND THE AMOUNT OF TEN
of said strip of land in good faith for more than ten (10) years had made THOUSAND (P10,000.00) PESOS AS REASONABLE ATTORNEYS FEES.
defendant owner of said strip of land traversed by its railway tracks. Because
the railway tracks which defendant had constructed on the questioned strip of

41
Petitioner Bomedco reiterates its claim of ownership of the Therefore, an acknowledgment of the easement is an admission that the
land through extraordinary acquisitive prescription under Article 1137 of the property belongs to another.[26]
Civil Code and laches to defeat the claim for compensation or recovery of
possession by respondent heirs. It also submits a third ground originally Having held the property by virtue of an easement, petitioner cannot
tendered by the trial court acquisition of the easement of right of way by now assert that its occupancy since 1929 was in the concept of an
prescription under Article 620 of the Civil Code. owner. Neither can it declare that the 30-year period of extraordinary
acquisitive prescription started from that year.
Extraordinary Acquisitive Prescription
Under Art. 1137 of the Civil Code Petitioner, however, maintains that even if a servitude was merely
imposed on the property in its favor, its possession immediately became
Petitioners claim of ownership through extraordinary acquisitive adverse to the owner in the late 1950s when the grant was alleged by
prescription under Article 1137 of the Civil Code cannot be sustained. respondent heirs to have expired. It stresses that, counting from the late
1950s (1959 as found by the trial court), the 30-year extraordinary acquisitive
There is no dispute that the controversial strip of land has been in the prescription had already set in by the time respondent heirs made a claim
continuous possession of petitioner since 1929. But possession, to constitute against it in their letters dated March 1 and April 6, 1989.
the foundation of a prescriptive right, must be possession under a claim of
title, that is, it must be adverse.[21] Unless coupled with the element of We do not think so. The mere expiration of the period of easement in
hostility towards the true owner, possession, however long, will not confer 1959 did not convert petitioners possession into an adverse one. Mere
title by prescription.[22] material possession of land is not adverse possession as against the owner
and is insufficient to vest title, unless such possession is accompanied by the
After a careful review of the records, we are inclined to believe the intent to possess as an owner.[27] There should be a hostile use of such a
version of respondent heirs that an easement of right of way was actually nature and exercised under such circumstances as to manifest and give
granted to petitioner for which reason the latter was able to occupy Cadastral notice that the possession is under a claim of right.
Lot No. 954. We cannot disregard the fact that, for the years 1930, 1937,
1949, 1962 and 1963, petitioner unequivocally declared the property to be a In the absence of an express grant by the owner, or conduct by
central railroad right of way or sugar central railroad right of way in its real petitioner sugar mill from which an adverse claim can be implied, its
estate tax receipts when it could have declared it to be industrial land as it possession of the lot can only be presumed to have continued in the same
did for the years 1975 and 1985.[23] Instead of indicating ownership of the lot, character as when it was acquired (that is, it possessed the land only by
these receipts showed that all petitioner had was possession by virtue of the virtue of the original grant of the easement of right of way),[28] or was by mere
right of way granted to it. Were it not so and petitioner really owned the land, license or tolerance of the owners (respondent heirs). [29] It is a fundamental
petitioner would not have consistently used the phrases central railroad right principle of law in this jurisdiction that acts of possessory character executed
of way and sugar central railroad right of way in its tax declarations until by virtue of license or tolerance of the owner, no matter how long, do not
1963. Certainly an owner would have found no need for these phrases. A start the running of the period of prescription.[30]
person cannot have an easement on his own land, since all the uses of an
easement are fully comprehended in his general right of ownership.[24] After the grant of easement expired in 1959, petitioner never performed
any act incompatible with the ownership of respondent heirs over Cadastral
While it is true that, together with a persons actual and adverse Lot No. 954. On the contrary, until 1963, petitioner continued to declare the
possession of the land, tax declarations constitute strong evidence of sugar central railroad right of way in its realty tax receipts, thereby
ownership of the land occupied by him,[25] this legal precept does not apply in doubtlessly conceding the ownership of respondent heirs. Respondents
cases where the property is declared to be a mere easement of right of way. themselves were emphatic that they simply tolerated petitioners continued
use of Cadastral Lot No. 954 so as not to jeopardize the employment of one
An easement or servitude is a real right, constituted on the corporeal of their co-heirs in the sugar mill of petitioner.[31]
immovable property of another, by virtue of which the owner has to refrain
from doing, or must allow someone to do, something on his property, for the The only time petitioner assumed a legal position adverse to
benefit of another thing or person. It exists only when the servient and respondents was when it filed a claim over the property in 1965 during the
dominant estates belong to two different owners. It gives the holder of the cadastral survey of Medellin. Since then (1965) and until the filing of the
easement an incorporeal interest on the land but grants no title thereto. complaint for the recovery of the subject land before the RTC of Cebu in
42
1989, only 24 years had lapsed. Since the required 30-year extraordinary should not be guided or bound strictly by the statute of limitations or the
prescriptive period had not yet been complied with in 1989, petitioner never doctrine of laches if wrong or injustice will result.
acquired ownership of the subject land.
It is clear that petitioner never acquired ownership over Cadastral Lot
Laches No. 954 whether by extraordinary acquisitive prescription or by laches.
Neither can petitioner find refuge in the principle of laches. It is not just
the lapse of time or delay that constitutes laches. The essence of laches is
the failure or neglect, for an unreasonable and unexplained length of time, to Acquisition of Easement of Right of Way By
do that which, through due diligence, could or should have been done earlier, Prescription Under Art. 620 of the Civil Code
thus giving rise to a presumption that the party entitled to assert it had either
abandoned or declined to assert it.[32]
Petitioner contends that, even if it failed to acquire ownership of the
Its essential elements are: (a) conduct on the part of the defendant, or of subject land, it nevertheless became legally entitled to the easement of right
one under whom he claims, giving rise to the situation complained of; (b) of way over said land by virtue of prescription under Article 620 of the Civil
delay in asserting complainants rights after he had knowledge of defendants Code:
acts and after he has had the opportunity to sue; (c) lack of knowledge or
notice by defendant that the complainant will assert the right on which he Continuous and apparent easements are acquired either by virtue of a title or
bases his suit; and (d) injury or prejudice to the defendant in the event the by prescription of ten years.
relief is accorded to the complainant.[33]
The second element (which in turn has three aspects) is lacking in the The trial court and the Court of Appeals both upheld this view for the
case at bar. These aspects are: (a) knowledge of defendant's action, (b) reason that the railroad right of way was, according to them, continuous and
opportunity to sue defendant after obtaining such knowledge and (c) delay in apparent in nature. The more or less permanent railroad tracks were
the filing of such suit.[34] visually apparent and they continuously occupied the subject strip of land
from 1959 (the year the easement granted by Feliciana Santillan to petitioner
Records show that respondent heirs only learned about petitioners claim expired). Thus, with the lapse of the 10-year prescriptive period in 1969,
on their property when they discovered the inscription for the cadastral petitioner supposedly acquired the easement of right of way over the subject
survey in the records of the Bureau of Lands in 1989. Respondents lost no land.
time in demanding an explanation for said claim in their letters to the
petitioner dated March 1, 1989 and April 6, 1989. When petitioner ignored Following the logic of the courts a quo, if a road for the use of vehicles
them, they instituted their complaint before the Regional Trial Court of Cebu or the passage of persons is permanently cemented or asphalted, then the
City on June 8, 1989. right of way over it becomes continuous in nature. The reasoning is
erroneous.
Petitioners reliance on Caro vs. Court of Appeals [35] and Vda. de
Alberto vs. Court of Appeals [36] is misplaced. There, laches was applied to Under civil law and its jurisprudence, easements are either continuous
bar petitioners from questioning the ownership of the disputed properties or discontinuous according to the manner they are exercised, not according
precisely because they had knowledge of the adverse claims on their to the presence of apparent signs or physical indications of the existence of
properties yet tarried for an extraordinary period of time before taking steps such easements. Thus, an easement is continuous if its use is, or may be,
to protect their rights. incessant without the intervention of any act of man, like the easement of
drainage;[38] and it is discontinuous if it is used at intervals and depends on
Further, there is no absolute rule on what constitutes laches. It is a rule the act of man, like the easement of right of way.[39]
of equity and applied not to penalize neglect or sleeping on ones rights but
rather to avoid recognizing a right when to do so would result in a clearly The easement of right of way is considered discontinuous because it is
unfair situation. The question of laches is addressed to the sound discretion exercised only if a person passes or sets foot on somebody elses land. Like
of the court and each case must be decided according to its particular a road for the passage of vehicles or persons, an easement of right of way of
circumstances.[37] It is the better rule that courts, under the principle of equity, railroad tracks is discontinuous because the right is exercised only if and

43
when a train operated by a person passes over another's property. In other conferment on it of a legal easement of right of way under Article 629 of the
words, the very exercise of the servitude depends upon the act or Civil Code, then title over the use of the land is deemed to exist. The
intervention of man which is the very essence of discontinuous easements. conferment of a legal easement of right of way under Article 629 is subject to
proof of the following:
The presence of more or less permanent railroad tracks does not in any
way convert the nature of an easement of right of way to one that is
continuous. It is not the presence of apparent signs or physical (1) it is surrounded by other immovables and has no adequate
indications showing the existence of an easement, but rather the manner of outlet to a public highway;
exercise thereof, that categorizes such easement into continuous or
discontinuous. The presence of physical or visual signs only classifies an (2) payment of proper indemnity;
easement into apparent or non-apparent. Thus, a road (which reveals a right
of way) and a window (which evidences a right to light and view) are (3) the isolation is not the result of its own acts; and
apparent easements, while an easement of not building beyond a certain
height is non-apparent.[40] (4) the right of way claimed is at the point least prejudicial to the
In Cuba, it has been held that the existence of a permanent railway servient estate, and, insofar as consistent with this rule, the
does not make the right of way a continuous one; it is only apparent. distance from the dominant estate to the highway is the
Therefore, it cannot be acquired by prescription.[41] In Louisiana, it has also shortest.[43]
been held that a right of passage over another's land cannot be claimed by
prescription because this easement is discontinuous and can be established None of the above options to acquire title over the railroad right of way
only by title.[42] was ever pursued by petitioner despite the fact that simple resourcefulness
demanded such initiative, considering the importance of the railway tracks to
In this case, the presence of railroad tracks for the passage of its business. No doubt, it is unlawfully occupying and using the subject strip
petitioners trains denotes the existence of an apparent but discontinuous of land as a railroad right of way without valid title yet it refuses to vacate it
easement of right of way. And under Article 622 of the Civil Code, even after demand of the heirs. Furthermore, it tenaciously insists on
discontinuous easements, whether apparent or not, may be acquired only by ownership thereof despite a clear showing to the contrary.
title. Unfortunately, petitioner Bomedco never acquired any title over the use
of the railroad right of way whether by law, donation, testamentary We thus uphold the grant by the Court of Appeals of attorneys fees in
succession or contract. Its use of the right of way, however long, never the amount of P10,000 considering the evident bad faith of petitioner in
resulted in its acquisition of the easement because, under Article 622, the refusing respondents just and lawful claims, compelling the latter to
discontinuous easement of a railroad right of way can only be acquired by litigate.[44]
title and not by prescription.
WHEREFORE, the petition is DENIED. The appealed decision dated
To be sure, beginning 1959 when the original 30-year grant of right of November 17, 1995 and resolution dated March 2, 1996 of the Court of
way given to petitioner Bomedco expired, its occupation and use of Cadastral Appeals are AFFIRMED with MODIFICATION. Petitioner Bogo-Medellin
Lot No. 954 came to be by mere tolerance of the respondent heirs. Thus, Milling Company, Inc. is hereby ordered to vacate the subject strip of land
upon demand by said heirs in 1989 for the return of the subject land and the denominated as Cadastral Lot No. 954, remove its railway tracks thereon
removal of the railroad tracks, or, in the alternative, payment of and return its possession to the private respondents, the heirs of Magdaleno
compensation for the use thereof, petitioner Bomedco which had no title to Valdez, Sr. It is also hereby ordered to pay private respondents attorney's
the land should have returned the possession thereof or should have begun fees in the amount of P10,000.
paying compensation for its use.
SO ORDERED.
But when is a party deemed to acquire title over the use of such land
(that is, title over the easement of right of way)? In at least two cases, we JUAN GARGANTOS, petitioner,
held that if: (a) it had subsequently entered into a contractual right of way vs.
with the heirs for the continued use of the land under the principles of TAN YANON and THE COURT OF APPEALS, respondents.
voluntary easements or (b) it had filed a case against the heirs for
44
Jose T. Nery for petitioner. the boundary line of his property, in conformity with Article 673 of the New
Constantino P. Tadena for respondents. Civil Code."

GUTIERREZ DAVID, J.: So Juan Gargantos filed this petition for review of the appellate Court's
decision. The focal issue herein is whether the property of respondent Tan
Juan Gargantos appeals by certiorari from the decision of the Court of Yanon has an easement of light and view against the property of petitioner
Appeals reversing the judgment of the Court of First Instance of Romblon. Gargantos.

The record discloses that the late Francisco Sanz was the former owner of a The kernel of petitioner's argument is that respondent never acquired any
parcel of land containing 888 square meters, with the buildings and easement either by title or by prescription. Assuredly, there is no deed
improvements thereon, situated in the poblacion of Romblon. He subdivided establishing an easement. Likewise, neither petitioner nor his predecessors-
the lot into three and then sold each portion to different persons. One portion in-interest have ever executed any deed whereby they recognized the
was purchased by Guillermo Tengtio who subsequently sold it to Vicente Uy existence of the easement, nor has there been final judgment to that effect.
Veza. Another portion, with the house of strong materials thereon, was sold Invoking our decision in Cortes vs. Yu-Tibo (2 Phil., 24), petitioner maintains
in 1927 to Tan Yanon, respondent herein. This house has on its northeastern that respondent has not acquired an easement by prescription because he
side, doors and windows over-looking the third portion, which, together with has never formally forbidden petitioner from performing any act which would
the camarin and small building thereon, after passing through several hands, be lawful without the easement, hence the prescriptive period never started.
was finally acquired by Juan Gargantos, petitioner herein.
It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and
On April 23, 1955, Gargantos applied to the Municipal Mayor for a permit to the doctrine in the Yu-Tibo case are not applicable herein because the two
demolish the roofing of the old camarin. The permit having been granted, estates, that now owned by petitioner, and that owner by respondent, were
Gargantos tore down the roof of the camarin. On May 11, 1955, Gargantos formerly owned by just one person, Francisco Sanz. It was Sanz who
asked the Municipal Council of Romblon for another permit, this time in order introduced improvements on both properties. On that portion presently
to construct a combined residential house and warehouse on his lot. Tan belonging to respondent, he constructed a house in such a way that the
Yanon opposed approval of this application. northeastern side thereof extends to the wall of the camarin on the portion
now belonging to petitioner. On said northeastern side of the house, there
are windows and doors which serve as passages for light and view. These
Because both the provincial fiscal and district engineer of Romblon
recommended granting of the building permit to Gargantos, Tan Yanon filed windows and doors were in existence when respondent purchased the house
against Gargantos an action to restrain him from constructing a building that and lot from Sanz. The deed sale did not provide that the easement of light
and view would not be established. This then is precisely the case covered
would prevent plaintiff from receiving light and enjoying the view trough the
by Article 541, O.C.C (now Article 624, N.C.C) which provides that the
window of his house, unless such building is erected at a distance of not less
existence of an apparent sign of easement between two estates, established
than three meters from the boundary line between the lots of plaintiff and
by the proprietor of both, shall be considered, if one of them is alienated, as a
defendant, and to enjoin the members of Municipal Council of Romblon from
issuing the corresponding building permit to defendant. The case as against title so that the easement will continue actively and passively, unless at the
the members of the Municipal Council was subsequently dismissed with time the ownership of the two estate is divided, the contrary is stated in the
deed of alienation of either of them, or the sign is made to disappear before
concurrence of plaintiff's council. After trial, the Court of First Instance of
the instrument is executed. The existence of the doors and windows on the
Romblon rendered judgment dismissing the complaint and ordering plaintiff
northeastern side of the aforementioned house, is equivalent to a title, for the
to pay defendant the sum of P12,500.00 by way of compensatory,
visible and permanent sign of an easement is the title that characterizes its
exemplary, moral and moderate damages.
existence (Amor vs. Florentino, 74 Phil., 403). It should be noted, however,
that while the law declares that the easement is to "continue" the easement
On appeal, the Court of Appeals set aside the decision of the Court of First actually arises for the first time only upon alienation of either estate,
Instance of Romblon and enjoined defendant from constructing his building inasmuch as before that time there is no easement to speak of, there being
unless "he erects the same at a distance of not less than three meters from

45
but one owner of both estates (Articles 530, O.C.C., now Articles 613, manage the condominium project and to hold title to all the common
N.C.C). areas. Title to the land on which the condominium stands was transferred
to Cypress under Transfer Certificate of Title No. S-67513. But Goldcrest
We find that respondent Tan Yanon's property has an easement of light and retained ownership of the two-level penthouse unit on the ninth and tenth
view against petitioner's property. By reason of his easement petitioner floors of the condominium registered under Condominium Certificate of Title
cannot construct on his land any building unless he erects it at a distance of (CCT) No. S-1079 of the Register of Deeds of Makati City. Goldcrest and its
not less than three meters from the boundary line separating the two estates. directors, officers, and assigns likewise controlled the management and
administration of the Condominium until 1995.
Wherefore, the appealed decision is hereby affirmed with costs against Following the turnover of the administration and management of the
Condominium to the board of directors of Cypress in 1995, it was discovered
petitioner.
that certain common areas pertaining to Cypress were being occupied and
encroached upon by Goldcrest. Thus, in 1998, Cypress filed a complaint with
Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, damages against Goldcrest before the Housing and Land Use Regulatory
Reyes, J.B.L., and Barrera, JJ., concur. Board (HLURB), seeking to compel the latter to vacate the common areas it
allegedly encroached on and to remove the structures it built
GOLDCREST REALTY G.R. No. 171072 thereon. Cypress sought to remove the door erected by Goldcrest along the
CORPORATION, stairway between the 8th and 9th floors, as well as the door built in front of the
Petitioner, Present: 9th floor elevator lobby, and the removal of the cyclone wire fence on the roof
deck. Cypress likewise prayed that Goldcrest pay damages for its occupation
QUISUMBING, J., Chairperson, of the said areas and for its refusal to remove the questioned structures.
CARPIO MORALES, For its part, Goldcrest averred that it was granted the exclusive use
- versus - TINGA, of the roof decks limited common area by Section 4(c)[4] of the condominiums
VELASCO, JR., and Master Deed. It likewise argued that it constructed the contested doors for
BRION, JJ. privacy and security purposes, and that, nonetheless, the common areas
occupied by it are unusable and inaccessible to other condominium unit
owners.
Upon the directive of HLURB Arbiter San Vicente, two ocular
inspections[5] were conducted on the condominium project. During the first
inspection, it was found that Goldcrest enclosed and used the common area
CYPRESS GARDENS Promulgated: fronting the two elevators on the ninth floor as a storage room. It was likewise
CONDOMINIUM CORPORATION, discovered that Goldcrest constructed a permanent structure which
Respondent. April 7, 2009 encroached 68.01 square meters of the roof decks common area.[6]
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x During the second inspection, it was noted that Goldcrest failed to
DECISION secure an alteration approval for the said permanent structure.
QUISUMBING, J.: In his Decision[7] dated December 2, 1999, Arbiter San Vicente ruled
For review on certiorari are the Decision[1] dated September 29, in favor of Cypress. He required Goldcrest, among other things, to: (1)
2005 and the Resolution[2] dated January 16, 2006 of the Court of Appeals in remove the questioned structures, including all other structures which inhibit
CA G.R. SP No. 79924. the free ingress to and egress from the condominiums limited and unlimited
The antecedent facts in this case are as follows: common areas; (2) vacate the roof decks common areas and to pay actual
Petitioner Goldcrest Realty Corporation (Goldcrest) is the developer damages for occupying the same; and (3) pay an administrative fine for
of Cypress Gardens, a ten-storey building located at Herrera constructing a second penthouse and for making an unauthorized alteration
Street, Legaspi Village, Makati City. On April 26, 1977, Goldcrest executed a of the condominium plan.
Master Deed and Declaration of Restrictions[3] which On review, the HLURB Special Division modified the decision of
constituted Cypress Gardens into a condominium project and incorporated Arbiter San Vicente. It deleted the award for actual damages after finding that
respondent Cypress Gardens Condominium Corporation (Cypress) to the encroached areas were not actually measured and that there was no
46
evidentiary basis for the rate of compensation fixed by Arbiter San Vicente. It WHEREFORE, the petition is PARTIALLY
likewise held that Cypress has no cause of action regarding the use of the GRANTED. The Decision of the Office of the President
roof decks limited common area because only Goldcrest has the right to use dated June 2, 2003 is hereby AFFIRMED with
the same. The dispositive portion of the decision reads: modification. Respondent Goldcrest Realty Corporation is
WHEREFORE, in view of the foregoing, the decision further directed to remove the permanent structures
of the office [is] modified as follows: constructed on the limited common area of the roof deck.
1. Directing respondent to immediately remove SO ORDERED.[11]
any or all structures which obstruct the use of the stairway The parties separately moved for partial reconsideration but both
from the eighth to tenth floor, the passage and use of the motions were denied.
lobbies at the ninth and tenth floors of the Cypress Gardens Hence this petition, raising the following issues:
Condominium; and to remove any or all structures that I.
impede the use of the unlimited common areas. [WHETHER OR NOT] THE APPELLATE COURT ERRED IN
2. Ordering the respondent to pay an RULING THAT GOLDCREST BUILT AN OFFICE
administrative fine of P10,000.00 for its addition of a second STRUCTURE ON A SUPPOSED ENCROACHED AREA IN
penthouse and/or unauthorized alteration of the THE OPEN SPACE OF THE ROOF DECK.
condominium plan. II.
All other claims are hereby dismissed. [WHETHER OR NOT] THE APPELLATE COURT ERRED IN
SO ORDERED.[8] RULING THAT PETITIONER IMPAIRED THE EASEMENT
Aggrieved, Cypress appealed to the Office of the President. It ON THE PORTION OF THE ROOF DECK DESIGNATED
questioned the deletion of the award for actual damages and argued that the AS A LIMITED COMMON AREA.[12]
HLURB Special Division in effect ruled that Goldcrest could erect structures Anent the first issue, Goldcrest contends that since the areas it
on the roof decks limited common area and lease the same to third persons. allegedly encroached upon were not actually measured during the previous
The Office of the President dismissed the appeal. It ruled that the ocular inspections, the finding of the Court of Appeals that it built an office
deletion of the award for actual damages was proper because the exact area structure on the roof decks limited common area is erroneous and that its
encroached by Goldcrest was not determined. It likewise held that, contrary directive to remove the permanent structures [13] constructed on the limited
to the submissions of Cypress, the assailed decision did not favor the common area of the roof deck is impossible to implement.
building of structures on either the condominiums limited or unlimited On the other hand, Cypress counters that the Court of Appeals
common areas. The Office of the President stressed that the decision did not finding is correct. It also argues that the absence of such measurement does
only order Goldcrest to remove the structures impeding the use of the not make the assailed directive impossible to implement because the roof
unlimited common areas, but also fined it for making unauthorized alteration decks limited common area is specifically identified by Section 4(c) of the
and construction of structures on the condominiums roof deck. [9] The Master Deed, which reads:
dispositive portion of the decision reads: Section. 4. The Limited Common Areas. Certain
WHEREFORE, premises considered, the appeal of parts of the common areas are to be set aside and reserved
Cypress Gardens Corporation is hereby DISMISSED and for the exclusive use of certain units and each unit shall have
the decision of the Board a quo dated May 11, 2000 is appurtenant thereto as exclusive easement for the use of
hereby AFFIRMED. such limited areas:
SO ORDERED.[10] xxxx
Cypress thereafter elevated the matter to the Court of Appeals, (c) Exclusive use of the portion of the roof deck (not
which partly granted its appeal. The appellate court noted that the right of shaded red in sheet 10 of Annex B) by the Penthouse unit
Goldcrest under Section 4(c) of the Master Deed for the exclusive use of the on the roof deck.[14]
easement covering the portion of the roof deck appurtenant to the penthouse xxxx
did not include the unrestricted right to build structures thereon or to lease We rule in favor of Cypress. At this stage of the proceedings, the
such area to third persons. Thus the appellate court ordered the removal of failure to measure the supposed encroached areas is no longer relevant
the permanent structures constructed on the limited common area of the roof because the award for actual damages is no longer in issue.Moreover, a
deck. The dispositive portion of the decision reads: perusal of the records shows that the finding of the Court of Appeals that
47
Goldcrest built an office structure on the roof decks limited common area is the use or preservation of the roof decks limited area. Second, the weight of
supported by substantial evidence and established facts, to wit: (1) the ocular the office structure increased the strain on the condominiums foundation and
inspection reports submitted by HLURB Inspector Edwin D. Aquino; (2) the on the roof decks common limited area, making the easement more
fact that the second ocular inspection of the roof deck was intended to burdensome and adding unnecessary safety risk to all the condominium unit
measure the actual area encroached upon by Goldcrest;[15] (3) the fact that owners. Lastly, the construction of the said office structure clearly went
Goldcrest had been fined for building a structure on the limited common beyond the intendment of the easement since it illegally altered the approved
area;[16] and (4) the fact that Goldcrest neither denied the structures condominium project plan and violated Section 4[27] of the condominiums
existence nor its encroachment on the roof decks limited common area. Declaration of Restrictions.[28]
Likewise, there is no merit in Goldcrests submission that the failure WHEREFORE, the petition is DENIED for lack of merit. The assailed
to conduct an actual measurement on the roof decks encroached areas Decision dated September 29, 2005 of the Court of Appeals in CA G.R. SP.
makes the assailed directive of the Court of Appeals impossible to No. 79924 is hereby AFFIRMED. Costs against the petitioner.
implement. As aptly pointed out by Cypress, the limited common area of the SO ORDERED.
roof deck is specifically identified by Section 4(c) of the Master Deed.
Anent the second issue, Goldcrest essentially contends that since ESTER JAVELLANA, ROLANDO DEMAFILES, CESAR CRUZADA and
the roof decks common limited area is for its exclusive use, building ANTONIO SISON, petitioners,
structures thereon and leasing the same to third persons do not impair the vs.
subject easement. HON. INTERMEDIATE APPELLATE COURT, 4th CIVIL CASES DIVISION,
For its part, Cypress insists the said acts impair the subject MARSAL & CO., INC., and MARCELINO FLORETE, SR., respondents.
easement because the same are already beyond the contemplation of the
easement granted to Goldcrest.
The question of whether a certain act impairs an easement is
undeniably one of fact, considering that its resolution requires us to determine
the acts propriety in relation to the character and purpose of the subject PARAS, J.:
easement.[17] In this case, we find no cogent reason to overturn the similar
finding of the HLURB, the Office of the President and the Court of Appeals that
Goldcrest has no right to erect an office structure on the limited common area Before Us is a Petition for certiorari to review the Decision 1 dated August
despite its exclusive right to use the same. We note that not only did 14,1985 promulgated by respondent Intermediate Appellate Court in AC-G.R.
Goldcrests act impair the easement, it also illegally altered the condominium C.V. No. 03781 which set aside the decision 2 rendered by the Regional Trial
plan, in violation of Section 22[18] of Presidential Decree No. 957.[19] Court, 6th Judicial Region, Branch XXVI, Iloilo City, dated December 15,
The owner of the dominant estate cannot violate any of the following 1983 in Civil Case No. 12791.
prescribed restrictions on its rights on the servient estate, to wit: (1) it can only
exercise rights necessary for the use of the easement;[20](2) it cannot use the The case at bar arose from a complaint for recovery of damages filed by
easement except for the benefit of the immovable originally Marsal & Co., Inc. and Marcelino Florete, Sr. (private respondents herein)
contemplated;[21] (3) it cannot exercise the easement in any other manner than against defendants Jose C. Hernani, Ester J. Javellana, Rolando Demafiles,
that previously established;[22] (4) it cannot construct anything on it which is not Cesar Crusada and Antonio Sison for allegedly denying plaintiffs' access to,
necessary for the use and preservation of the easement;[23] (5) it cannot alter and use of a canal leading to plaintiffs' property and to enjoin the City Mayor
or make the easement more burdensome;[24] (6) it must notify the servient and City Engineer of Iloilo City from demolishing the existing structures within
estate owner of its intention to make necessary works on the servient plaintiffs property serving as dike entrance gate to said canal situated at
estate;[25] and (7) it should choose the most convenient time and manner to Barangay Navais, Mandurriao, Iloilo City. Before the pre-trial conference the
build said works so as to cause the least convenience to the owner of the complaint as against the City Mayor and City Engineer, was dismissed at the
servient estate.[26] Any violation of the above constitutes impairment of the instance of plaintiffs on the ground that said defendants had agreed not to
easement. demolish the pendency of the action.
Here, a careful scrutiny of Goldcrests acts shows that it breached a
number of the aforementioned restrictions. First, it is obvious that the At the pre-trial conference, on June 5,1979 the parties stipulated:
construction and the lease of the office structure were neither necessary for
48
... (1) that plaintiff Marsal & Co., Inc., is presently the owner the canal running thru the premises of the L. Borres
of the parcel of land adjoining the Iloilo River up to and Elementary School to Lot 2344; (3) Whether or not the
adjacent the lot where the L. Borres Elementary School is closing of the dike entrance connecting the main canal with
located at Barangay Navais Mandurriao, Iloilo; (2) that in the canal running thru the school premises caused the
1961, when Marcelino Florete, Sr. was still the owner of said flooding of the premises of L. Borres Elementary School and
Marsal property having acquired the same by purchase from its vicinity; (4) whether or not an easement or servitude of
its former owners sometime in 1959, there existed a main water-right-of-way was constituted on the property of the
canal from the Iloilo River cutting across said property plaintiffs as servient estate in favor of the L. Borres
towards the lot where the said school is located and thru a Elementary School land and nearby lands as dominant
canal that traverses the school premises going towards Lot estates; (5) Whether or not defendants acted in their
2344; (3) that sometime in July 1978, plaintiffs closed the respective private or official capacities in dealing with the
dike entrance of the main canal to the canal running across problem related to the canals in question; (6) Whether or not
the L. Borres Elementary School premises to Lot 2344; (4) the defendant Ester Javellana had denied plaintiffs the use
that on petition of school P.T.A. officials of Barangay Navais, of the canal running from the main canal thru the school
an ocular inspection of the premises was made as a result of premises to Lot 2344 of the plaintiffs; (7) Whether or not the
which a report dated November 7, 1978 was prepared and demolition or closure by plaintiffs of the entrance-dike
submitted by 2nd Asst. City Fiscal Serafin Abogado; (5) that connecting the main canal with the canal running thru the L.
before 1971, there were no houses standing within the Borres Elementary School preventing the free flow of water
school compound and premises of L. Borres Elementary to and from the school premises and vicinity violates the
School; (6) that at present, there are 15 to 16 houses in the provisions of Presidential Decree 296; and (8) Whether or
said school compound one of which is the house of the not either party may be held liable to the other for damages.
barangay captain of Barangay Navais; (7) that some of those (Rollo, pp. 35-37)
who signed the petition (Exh. "7") are not residents or
occupants of the houses within the school compound; (8) After due trial, judgment was rendered by the trial court, the dispositive
that the photograph (Exh. "A") is the aerial photograph of the portion reading as follows:
premises in question showing the location of the L. Borres
Elementary School, the properties of the plaintiffs, the Iloilo
WHEREFORE, judgment is hereby rendered dismissing
River and the Borres property; (9) that the plaintiffs had
plaintiffs' complaint.
demolished the dike connecting the main canal in plaintiffs'
property with the canal running thru the school premises
toward 2344; and (10) that defendant Director Jose C. On defendants' counterclaim, the plaintiffs are hereby
Hernani had invited plaintiff Marcelino Florete, Sr. for ordered to restore and reopen the dike entrance connecting
conference concerning the complaint of the residents of the main canal with the canal running thru the premises of L.
Barangay Navais on July 28, and 31, 1978 as per Exhs. "9" Borres Elementary School and to demolish any and all
and "10" (pp. 35-36, Rollo) structures within plaintiffs' property that impede the free flow
of water to and from the Iloilo River thru the said canals.
The issues as defined by the parties are:
Further, plaintiffs Marsal & Co., Inc. and Marcelino Florete,
Sr. are hereby ordered to pay, jointly and severally, each of
(1) Whether or not them main canal and the canal traversing
the defendants, Jose C. Hernani, Ester J. Javellana,
the premises of the L. Borres Elementary School going
Rolando Demafiles, Cesar Cruzada and Antonio Sison, the
towards Lot 2344 existing only beginning 1961 as claimed by following sums, to wit: (1) P10,000.00 for moral damages
the plaintiffs or since time immemorial as contended by the and (2) P2,500.00 for exemplary damages and (3)
defendants; (2) Whether or not it was plaintiff Marcelino
P2,500.00 for and as attorney's fees of the total sum of
Florete, Sr. who had constructed the main canal as well as
P15,000.00 each, plus costs.
49
SO ORDERED. Plaintiff-appellant is thus the dominant estate and not the L.
Borres Elementary School. (Decision, p. 8)
(P. 46, Rollo)
III
Not satisfied with said judgment, plaintiffs appealed to the Intermediate
Appellate Court which rendered the assailed decision, its dispositive portion That the school, in violation of the said easement, allowed
stating as follows: other parties to use the canal for salt production in
competition with the salt business of plaintiff-appellant which
WHEREFORE, finding the decision appealed from not is conducted in Lot 2344. (Decision, p. 8)
consistent with the facts and the law applicable, the same is
hereby set aside and another one entered- IV

1. Granting the issuance of the writ of preliminary injunction That the canal which traverses plaintiff's property never
sought in the complaint to become permanent upon the benefitted the school. It was only after plaintiff built the canal
finality of this decision; starting from its fishpond up to its other property that the
school benefited from the water coming from the river.
2. Ordering the defendants-appellees to respect plaintiffs' (Decision, p. 10)
rights and to refrain from demolishing and/or causing the
demolition of the dikes built by plaintiff (Florete, Sr.) on his V
property;
That aside from the plaintiff's property there is another parcel
Costs de oficio. of land which is more than adequate to provide the drainage
sought by the defendants and this is the Borres property.
SO ORDERED. (pp. 57-58, Rollo) (Decision, p. 10)

Petitioners contend that the decision of the Appellate Court is contrary to law, The petition is worthy of consideration. In the Appellate Court's decision, it is
its conclusions based entirely on speculations and conjectures and there is noted that said court relied heavily on the findings of facts of the trial court
grave abuse of discretion in that the findings of fact are without competent even to the extent of quoting such findings in its decision in support of its
evidence to support them. Petitioners argue that the respondent Appellate ruling. However, the conclusions reached by both courts were different.
Court erred in holding: Petitioners now question the correctness of the conclusions drawn by the
respondent Court of Appeals from the proven facts enumerated by the trial
court. This determination as to the correctness of the conclusions drawn from
I
the pleadings is a question of law which this Court is authorized to pass
upon. There is no question of fact here because the facts are admittedly
That the canal in question was built by plaintiff-appellant proven. Said facts are reproduced hereunder:
purposely to make water available to its own Lot 2344.
(Decision, p. 8)
The Court finds from the evidence that the main canal had
been in existence long before defendant Marcelino Florete,
II Sr. acquired ownership of the land thru which the same
passes from the Iloilo River up to the premises of what is
That the plaintiff-appellant is the one that has the right of now known as the L. Borres Elementary School. This fact
easement upon the lot occupied by the barrio school. was clearly brought to light by the testimonies of at least
three witnesses, including a member of the Maranon family
50
from whom Florete, Sr. acquired the land, in addition to the previously worked this main canal in 1948 as part of his job
testimony of defendant Antonio Sison, Barangay Captain of in the fishpond of Buenaventura Maranon fixing its dikes in
Barangay Navais where the subject canal is situated. order to make water flow freely towards the fishpond of the
Maranon family.
The Court, indeed, finds no reason to doubt the testimonies
of these witnesses not only because they ring true Witness Regacho further declared that when defendant
throughout but also because the same emanate from reliable Marcelino Florete, Sr. became owner of this Maranon
sources who had been actual residents of the place, having fishpond, he was able to work on this canal where he dug
had occasions to take their bath in the same canal and with the canal deeper up to Florete's land. He testified that during
separate individual experiences incident thereto to relate. high tide the water in the canal was only about 1/2 meter
deep and there was no water during low tide and so Florets
Severo Maranon, a public school teacher and one of the made the canal deeper.
children of the late Buenaventura Maranon, a co-owner of
the fishpond purchased by plaintiff Florete, Sr. testified that Regacho also testified that there are two canals within the
as early as 1948, when he was about 6 years old, he already school premises, one going towards the land of Florete and
knew the subject canal that passes thru their fishpond at the other to the land of Mirasol. These two canals met at the
Barangay Navais from the Iloilo River towards the premises place where Florete closed the canal. The canal going
of the school. On one occasion in 1954, while taking a bath towards Florete's land and that to Mirasol's land serve to
in this canal when still a young boy, he nearly drowned, empty rainwater to the Iloilo River. He further confirmed that
reasons for which he has not forgotten the said canal. the school fishpond has no other source of salt water except
from the canal that connect to the main canal that starts from
Another witness, Ignacio Gencianeo, 75, a former employee the Iloilo River.
of the Bureau of Public Highways, testified that when he was
still single, being a resident of Barangay Navais, he used to For his part, defendant Antonio Sison, 54, testified that he
take a bath in the canal near the Iloilo River which is deeper was born in Barangay Navais and has been its barangay
than the other portions. He recalled an incident where a captain since 1954 continuously up to the present. He first
woman, named Toribia Tajaon, while picking shells at the noticed the existence of the canal in 1933 when he reached
sides of the dikes, fell into the canal and nearly got drowned the age of reason at the age of 8 years, said canal being
had he not helped her. He last took a bath in the canal in about 300 meters long from the Iloilo River going towards
1937 before he got employed at the Bureau of Public the premises of the barrio school and to the land now known
Highways. as Lot 2344 owned by Marcelino Florete. He also used to
take a bath in this canal when still a small boy.
Witness Gencianeo also testified that he was then the Barrio
Captain of Navais when the Barrio School was constructed Defendant Sison further declared that the brothers Pedro
in 1940 on the land owned by Lucas Borres. and Buenaventura Maranon were then the owners of the
fishpond along which the canal runs starting from the Iloilo
Francisco Regacho, 56, testifying for the defendants, River towards the school premises when the Maranons sold
declared that in 1948, his house was located beside the the land to Florete sometime in 1959. Florete was not the
canal near the Iloilo River and the land thereat was then one who constructed the canal but only made the same
owned by Buenaventura Maranon. When the barrio school deeper.
was constructed in 1940, he worked filling sand on the
school site. He was able to lease the school fishpond from This construction of Florete took place in 1961 when Sison
1973 to 1977. This fishpond draws its supply of salt water was also the barangay captain. He recalled Francisco
from the canal coming from the Iloilo River. He had Regacho was one of those who worked in making the canal
51
deeper at the instance of Florete and that no employee from A From our fishpond traversing the Borres
the City Engineer's Office inspected the canal during its Elementary and then going to our lot. (TSN,
repair undertaken by Florete and where Alfredo Emboltorio, July 5, 1979, page 22).
as the one who managed the work in the canal.
Defendants presented in evidence a blueprint copy of the
Defendant Sison went to see Pedro Maranon, who was once Cadastral Map. B. L. No. 3 (Exh. "F") to show that no natural
a co-owner of the land where the main canal passes, to waterway or creek existed in the pre that connected the Iloilo
request him to testify but the latter begged off by reason of River to the fishpond premises. But this piece of evidence
his health and old age and, instead, executed an affidavit was rendered without any probative value when plaintiffs
dated May 14, 1979 (Exh. "8") certifying to the effect that also presented Teodoro Simpas, Chief of the Surveys
"since before the war until we sold the said land to Marcelino Division of the Bureau of Lands, Region IV, who testified that
Florete, there exists a canal from the Iloilo River cutting our creeks and esteros are delienated in the cadastral map only
property down towards the lot where the school is located if they are five (5) or more meters wide and, even less than
and thru a canal that traverses the school premises. (par. 4. five (5) meters wide, if there is continuous flow of water is to
Exh. "8") be determined by the surveyor who made the survey.

It is thus clear from the testimonies of defendants' witnesses Here, it has been duly established that the canal in question
that the main canal starting from the Iloilo River and the starting from the Iloilo River is only about 3 meters wide for
canal traversing the premises of the L. Borres Elem. School the first 100 meters long and then measures about 2 meters
going toward lot 2344 existed long before defendant Florete, wide until it reaches Lot 2344 with a length of about 200
Sr. acquired ownership of the land of the Maranons and that, meters. And it has been shown that salt water coming from
if at all, Florete merely caused to be made deeper that the Iloilo River flows in the canal during high tide where the
portion traversing the school premises. water in the main canal reaches about one-half meter and
about two (2) feet in the canal that traverses the school
No less than the defendants' evidence itself proved the premises. In ordinary days, no water flows in the canal that
existence of the main canal. Thus, in his letter dated June cuts a the school premises . This explains why the canal in
26,1961 embodied in Resolution No. 715 dated June question was not indicated in the cadastral map during the
27,1961 of the Municipal Board of the City of Iloilo (Exh. "B") 1913 survey. The canal is less than 5 meters wide and did
defendant Florete Sr. asked that he be allowed to build a not have a continuous flow of water except during high tide
canal within the premises of the barrio school up to his Lot and during rainy season where it serves as drainage and
2344. It is not, therefore, a permit to build a canal from the empties flood waters into the Iloilo River.
Iloilo River for otherwise, Florete would have so stated in his
said letter to the Board. This is so because there already Defendants' closure of the dike's entrance connecting the
existed a main canal from the Iloilo River. The canal main canal with the canal running thru the school premises,
traversing the school premises was likewise then already therefore, caused the flooding of the premises of the L.
existing but not so deep that Florete wanted it constructed to Borres Elementary School and its vicinity. This is so because
be permanent. And in making this canal deeper, he started during rainy season, said canal also serves as outlet of rain
not from the Iloilo River but from his fishpond adjoining the or flood waters that empties to the Iloilo River. Witnesses
school premises towards his lot 2344, Florete testified thus: Ignacio Gencianeo, Francisco Regacho, Severo Maranon
and Barangay Captain Antonio Sison were unanimous in
Q. (Court) - From what point did you start? declaring so.

In his attempt to show that the closing of the dike entrance of


the canal did not cause the flooding of the school premises
52
and its vicinity, plaintiffs' witnesses Modesto Emboltorio, surrounding vicinity in danger of being flooded when it rains
declared that flood in the school fishpond immediately so that the school officials, the defendants Ester Javellana,
disappears because water recedes to the Borres property. as district supervisor, Cesar Cruzada as head teacher and
But it has been shown that the adjacent Borres property is Rolando Demafiles as practical arts teacher and the
higher in elevation compared to the school premises such barangay captain, Antonio Sison only did what were
that water in the school premises cannot flow towards that incumbent upon them to do as such school and barangay
area. And because water has no other way out except thru officials when they complained to higher authorities about
the canal, the school premises and its vicinity get flooded the plaintiffs' closure of the canal in question.
once it rains and flood waters remain stagnant for days as
shown by the photographs exhibits "3" and "3-A" taken on Indeed, there is no showing that the defendants school
August 24,1978 and Exhibits "10" and "10-A" taken on officials were motivated by their own personal interests when
August 15, 1979. The said photographs Exhibits "l 0" and they complained against plaintiffs' action vis-a-vis the canal.
"10-A" belied Emboltorio's testimony that there were no flood Their effort were all directed towards the benefit of the
waters in that area when he testified in Court in the morning school as well as for the school children who, in one way or
of August 14, 1979. another, had been adversely affected by the closure of the
canal. These officials did not act privately for themselves but
That the premises of the school and its vicinity were flooded for public good and public interest. They expected no
when it rained during the rainy season of 1978 immediately personal benefit in return.
after the closing of the dike entrance of the canal is further
shown by the report (Exh. "4") dated September 3, 1978 The same is true with the defendant barangay captain
submitted by Carlos G. Brasileno, Asst. Complaint & Acting Antonio Sison who merely complied with his duty extending
Officer, Barangay City secretariat and the 6th Indorsement assistance to the residents of bringing their complaint to the
(Exh. "'I") dated November 7,1978 of 2nd Asst. City Fiscal authorities concerned. It was his duty to attend to the needs
Serafin L. Abogado. These two officials were with the and problems of his barangay and its residents. The closure
government teams that conducted ocular inspection of the of the canal did not only deprive the residents of salt water
place upon complaint of the residents therein and they for salt- making but also posed danger to them as in fact,
actually saw for themselves the flooded situation of the place during the ensuing rainy days in August of 1978, the place
caused by plaintiffs' closure of the dike entrance of subject was flooded thus endangering the health and safety of the
canal. residents therein.

To be sure, the defendants acted in their official capacities in Then, too, defendant Col. Jose Hernani only did his duty as
dealing with the problem related to the canals in question. It head of the Office of Civil Defense in attending to the
has been sufficiently established that the school fishpond complaint of the residents of the place. His office has
gets its supply of salt water directly from the Iloilo River jurisdiction over cases of calamity, flood and the like such
passing thru the canal that traverses the school premises. that it was but proper, nay obligatory, on his part to act on
Likewise, the residents of the place produce salt thru the use their complaint against the closure of the canal that caused
of plastic sheets using salt water drawn from the canal. Salt flood in Barangay Navais
water in this canal is fresh and clean as the tide changes
from the Iloilo River unlike in the fishpond nearby which is
The fact is that plaintiffs are without any justifiable reason to
stagnant and polluted and not suitable for salt- making.
close the canal. Defendants advanced that the district
supervisor, defendant Ester Javellana, wrote Marcelino
The closure of the dike entrance of the canal deprived the Florete Sr. a letter allegedly denying his use of the canal that
school fishpond as well as the residents of the place of salt- traverses the school premises reason for which he closed
water and placed the premises of the school and the the dike entrance and built an underground canal on the
53
other side of his property going to his Lot 2344. But that the Division Office denied your right of
defendant Javellana explained that there was no such way?
denial. What she meant when she wrote the letter to
Marcelino Florete, Sr. was that plaintiffs could not lay pipes A I meant they cannot bury a pipe depriving
underneath the canal. Defendant Ester Javellana testified the school of the water because the land
thus: does not belong to us yet. In other words,
the land does not belong to L. Borres
Q Could you inform the Hon. Court Mrs. Elementary School although it is supposed
Javellana what impelled you to write Mr. to be donated by L. Borres
Florete this letter?
Q But when you wrote this letter Mrs.
A My head teacher informed that they were Witness, did you really stop or prohibit Mr.
going to lay or buy a 10 inch pipe in the Florete from continuing the use of the canal?
canal which crosses the school that canal to
my office one morning Feb. 22. Industrial A No sir. (TSN, Oct. 17, 1979, pp. 5-6)
Arts Teacher Mr. Rolando Demafiles and the
Head Teacher, Mr. Cesar Cruzada. They
Mrs. Javellana sent that letter-invitation when she came to
were excited. There was already a 10 inch know that water pipes were about to be laid underground by
rubber tube running from Iloilo River plaintiffs in lieu of the open canal. Plaintiff Florete Sr.,
crossing to the school to the bed of Mr.
however, did not come to the conference nor sent any word
Florete. That they intend to bury and so I
or representative. Nor did he attend to all other subsequent
accompanied them to L. Borres Elementary
invitations related to the canal although he knew said
School and saw for myself that there really
invitations or conference conducted by the government
was a 10 inch or 8 inch rubber pipe running offices concerned.
across the school and was about to be
buried.
As heretofore stated, the main canal had long been in
existence even before plaintiff Marcelino Florete Sr. acquired
Q Why? Can you explain what would be the ownership of the fishpond of the Maranons thru which the
disadvantage if Mr. Florete bury those pipes same passes. This canal served as passage of salt water
on the canal that traverses the school?
from Iloilo River to the school fishpond and at the same time,
as outlet and drainage canal or channel of rainwater from the
A The school maybe deprived of the water school premises and adjacent lands that empties to the Iloilo
for their fishpond, that is one and the River. An easement or servitude of water-right of way had
second, drainage canal which drains the thus been constituted on the property of the plaintiffs as the
school in case of flood will not be working servient estate in favor of the L. Borres Elementary School
anymore. land and the nearby lands as the dominant estates.

Q Now, in your letter, you mentioned here Even on the assumption that it was plaintiff Florete Sr. who
and I read quote: Please sit down with us constructed the subject canal in 1961, an easement or
with Mr. Borres because this lot of the servitude of water-right-of-way had nonetheless been
school still belongs to Mr. Borres and the constituted on subject property because since then the same
Division Office denies your right of way, my had been in continuous use for no less than fifteen (15)
question is what do you mean when you say years by the school fishpond as well as by the adjacent

54
lands. A positive easement (Art 616, New Civil Code) had the canal and so the waters therein were dirtied and
thereby been created and plaintiffs have no right to terminate rendered totally unsanitary for human use, particularly for
it unilaterally without violating Art. 629 of the New Civil Code salt-making. But this claim was belied by defendants'
which provides: showing that what motivated plaintiffs to close the canal was
the fact that the residents engaged in salt-making using
Art. 629: The owner of the servient estate cannot impair, in plastic bags and thus, somehow, competed with plaintiffs in
any manner whatsoever, the use of the servitude. the production of salt in the area. At any rate, regardless of
what motivated plaintiffs into closing the canal, the fact is
Nevertheless, if by reason of the place originally assigned or that plaintiffs act ran roughshod over the aforequoted
provisions of law on easement and transgressed Presidential
of the manner established for the use of the easement, the
Decree No. 296.
same should become very inconvenient to the owner of the
servient estate, or should prevent him from making any
important works, repairs or improvements thereon, it may be On the issue of damages, therefore, the court is of the view
charged at his expense, provided he offers another place or and so holds that plaintiffs are liable to the defendants for
manner equally convenient and in such a way that no injury moral damages, attorney's fees and costs of litigation. It is
is caused thereby to the owner of the dominant estate or to bad enough that plaintiffs, after closing the canal and thus
those who may have a right to the use of the easement. depriving the school fishpond and residents of the place salt
water from the Iloilo River and impeding the flow of rain and
Plaintiffs, however, did not recognize, much less, follow the flood waters from the school premises and adjacent lands to
above-quoted law on easement. They closed the entrance of said river during rainy season, unjustifiably refused and
failed to heed defendants' plea for them to reopen said
the canal and demolished portions of the main dike thus
canal. Worse, plaintiffs instituted the present action against
impairing the use of the servitude by the dominant estate.
the defendants and dragged the latter into a court suit that
And by so doing, plaintiffs violated not only the law on
occasioned upon them worries, serious anxiety, fright and
easement but also Presidential Degree No. 296 which
enjoins any person, natural or juridical, to demolish mental anguish. No doubt, the defendants were vexed to the
utmost to find themselves faced with a court suit when what
structures or improvements which tend to obstruct the flow of
they did was only to do what was incumbent upon them to
water through rivers, creeks, esteros and drainage channels.
do as public officials committed to serve public interest and
For this canal did not serve merely to supply salt water to the
welfare. What is more, they were forced to secure the
school fishpond but also serves as drainage charged or
channel of rainwater from adjacent lands to the Iloilo River. service of a private counsel as they were sued also in their
private capacities.
Before the canal was closed, the residents had not
It is quite evident that plaintiffs filed the present action in bad
experienced any flood in the area or in the school premises.
faith to preempt whatever appropriate legal action the
It was only after the canal was closed by plaintiffs on July 25,
1978, that the residents began to experience flood in the authorities could take under the circumstances aware, as
school premises particularly in the month of August every they were, that no less than the offices of the City Fiscal of
Iloilo and the City Barangay Secretariat, after conducting
year thereafter when rainy season comes. Rainwater from
ocular inspection of the place together with other
adjoining areas accumulate at the school premises without
government functionaries tasked with promoting the health,
any chance of going out. Flood waters remain stagnant for
safety and welfare of the people in the area, recommended
days and became filthy and veritable breeding place of
mosquitoes. immediate appropriate action aimed at reopening the canal.

The damages that could be adjudged in this case are,


Plaintiffs claimed that they closed the canal because the
however, limited only to the herein defendants. It may be
residents of the place threw waste matter and garbage into
55
that the school fishpond was damaged and the school PTA SIM and PACITA S. SIM; and Spouses ANTONIO CARDENAS and MAE
suffered actual damages in the form of lost income LINDA CARDENAS, respondents.
therefrom. And so with the school children and residents of
the place reason for which defendants pray that they should Numeriano F. Capangpangan for petitioner.
be compensated. But they are not parties to this case hence,
damages could not be awarded to them. (pp. 37-46, Rollo) Meinrado P. Parades for private respondents.

After a careful reading of the aforementioned findings of the trial court, there
is no question that the two subject canals had been in existence long before
plaintiff Florete bought his land from the Maranons. Respondent appellate
court cannot now disown it after quoting with approval in the body of its PADILLA, J.:
decision the findings of the trial court. This brings Us to the determination of
the other issue namely: which of the two (2) estates is the dominant or This is a petition for review on certiorari of the Order issued by the
servient estate, an issue which hinges upon the conclusion reached by the respondent judge, Hon. Juanita A. Bernad on 5 December 1983, which
trial court that the canals were in existence long before Florete Sr. had dismissed the complaint for legal redemption filed by the petitioner in Civil
acquired that property from the Maranons. It has been established that the Case No. CEB-994 of the Regional Trial Court of Cebu, and the Order of the
main canal which is traversing the property of Florete served as the passage same respondent judge, dated 20 January 1984, which denied petitioner's
of salt water from the Iloilo River to the school fishpond and at the same time, motion for reconsideration.
as an outlet and drainage canal or channel of rainwater from the school
premises and adjacent lands that empty into the Iloilo River. Even assuming The facts, in brief, are as follows:
that it was plaintiff Florete Sr. who constructed the subject canal in 1961, an
easement of water-right of way had already been constituted on the property The private respondent Antonio Cardenas was the owner of two (2)
of the plaintiffs as the servient estate in favor of the L. Borres Elementary contiguous parcels of land situated in Cebu City which he had inherited from
School premises and the nearby lands as the dominant estates. Private Lourdes Cardenas and more particularly known as Lot 7501-A, with an area
respondents thus violated Art. 629 of the Civil Code when they closed the of 140 square meters and Lot 7501-B, with an area of 612 square meters. On
entrance of the canal and demolished portions of the main dike thus Lot 7501-A is constructed an apartment building, while the improvements on
impairing the use of the servitude by the dominant estates. The findings of Lot 7501-B consist of one four-door apartment of concrete and strong
the trial court are amply supported by a careful and exhaustive consideration materials; one two-storey house of strong materials; a bodega of strong
of all available documentary and oral evidence including ocular inspections materials; and a septic tank for the common use of the occupants of Lots
as it was in the best position to do so. Its legal conclusions are likewise 7501-A and 7501-B. A small portion of the apartment building on Lot 7501-A
unassailable. In view of the well-settled rule that this Court is not a trier of also stands on Lot 7501-B.
facts, We find no plausible reason not to sustain the trial court in its findings
of fact and the legal conclusions drawn from these findings.
On 5 February 1982, said Antonio Cardenas sold Lot 7501-A to herein
petitioner Eduardo C. Taedo. 1
WHEREFORE, premises considered, the assailed decision of the respondent
appellate court is hereby REVERSED and SET ASIDE, and the judgment of
Antonio Cardenas, on that same day, also mortgaged Lot 7501-B to said
the Regional Trial Court in Civil Case No. 12791 is hereby REINSTATED.
Eduardo C. Taedo as a security for the payment of a loan in the amount of
P10,000.00. 2
SO ORDERED.
Antonio Cardenas further agreed that he would sell Lot 7501-B only to
EDUARDO C. TAEDO, petitioner, Eduardo Taedo in case he should decide to sell it, as the septic tank in Lot
vs. 7501-B services Lot 7501-A and the apartment building on Lot 7501-A has a
HON. JUANITO A. BERNAD, Presiding Judge of the Regional Trial part standing on Lot 7501-B. This was confirmed in a letter, dated 26
Court, 7th Judicial Region, Branch XXI, Cebu City; Spouses ROMEO February 1982, wherein Antonio Cardenas asked Taedo not to deduct the
56
mortgage loan of P10,000.00 from the purchase price of Lot 7501-A Hence, the present recourse by petitioner Tanedo.
"because as we have previously agreed, I will sell to you Lot 7501-B."3
The Court finds merit in the petition. The dismissal of the complaint on the
Antonio Cardenas, however, sold Lot 7501-B to the herein respondent ground of lack of cause of action, is precipitate. The settled rule where
spouses Romeo and Pacita Sim. 4 Upon learning of the sale, Eduardo dismissal of an action is sought on the ground that the complaint does not
Taedo offered to redeem the property from Romeo Sim. But the latter state a cause of action is, that the insufficiency of the cause of action must
refused. Instead, Romeo Sim blocked the sewage pipe connecting the appear on the face of the complaint. And the test of the sufficiency of the
building of Eduardo Taedo built on Lot 7501-A, to the septic tank in Lot ultimate facts alleged in the complaint to constitute a cause of action, is
7501-B. He also asked Taedo to remove that portion of his building whether or not, admitting the facts alleged, the court can render a valid
enroaching on Lot 7501-B. As a result, Eduardo Taedo, invoking the judgment upon the same in accordance with the prayer of the complaint. For
provisions of Art. 1622 of the Civil Code, filed an action for legal redemption this purpose, the movant is deemed to admit hypothetically the truth of the
and damages, with a prayer for the issuance of a writ of preliminary facts thus averred. 12
injunction, before the Regional Trial Court of Cebu, docketed therein as Civil
Case No. CEB-994, against the spouses Romeo and Pacita Sim, Antonio In the instant case, it cannot be denied that petitioner Tanedo cannot redeem
Cardenas and his wife Mae Linda Cardenas, the Register of Deeds of Cebu the entire Lot 7501-B from the spouses Romeo and Pacita Sim pursuant to
City, and Banco Cebuano, Cebu City Development Bank. 5 the provisions of Art. 1622 Romeo and Pacita Sim pursuant to the provisions
of Art. 1622 of the Civil Code, since the lot sought to be redeemed, has an
Answering, the spouses Romeo and Pacita Sim claimed that they are the area of 612 square meters which is much bigger, area-wise, than the lot
absolute owners of Lot 7501-B and that Eduardo Taedo has no right to owned by petitioner Taedo. However, the petitioner seeks to purchase only
redeem the land under Art. 1622 of the Civil Code as the land sought to be that small portion of Lot 7501-B occupied by his apartment building, because
redeemed is much bigger than the land owned by Taedo. 6 the spouses Romeo and Pacita Sim had told him to remove that portion of
his building which enroaches upon Lot 7501-B. Whether or not this is
Antonio Cardenas, upon the other hand, admitted that he had agreed to sell possible should have been determined at the pre-trial stage or trial on the
Lot 7501-B to Eduardo Taedo and claimed by way of cross-claim against merits.
the spouses Romeo and Pacita Sim that the Deed of Sale he had executed
in favor of said spouses was only intended as an equitable mortgage, to Besides, the action of petitioner Taedo is also one for recovery of damages
secure the payment of amounts received by him from said spouses as petty by reason of breach of promise by the respondent Antonio Cardenas to sell
loans . 7 Lot 7501-B. Paragraphs 3 and 4 of the amended complaint read, as follows:

In answer to the cross-claim, the spouses Romeo and Pacita Sim insisted 3. That by written agreement, plaintiff and defendant
that the sale executed by Antonio Cardenas of Lot 7501-B in their favor was spouses Antonio Cardenas and Mae Linda Cardenas agreed
an absolute one. 8 that in the event they decide to sell the adjacent Lot No.
7501-B of the subdivision plan (LRC) Psd. 23638, a portion
Thereafter, or on 14 October 1983, the spouses Romeo and Pacita Sim filed of Lot No. 7501 of the cadastral survey of Cebu, LRC
motions to dismiss the complaint and the cross-claim, for lack of cause of (GLRC) Cad. Record No. 9465, situated in the City of Cebu,
action. 9 containing an area of SIX HUNDRED TWELVE (612)
Square meters more or less which lot is adjacent to Lot No.
7501-A of the plaintiff and where part of the plaintiffs
Acting upon these motions and other incidental motions, the respondent
apartment is standing on, the same should be sold to the
judge issued the questioned order of 5 December 1983 dismissing the
complaint and cross-claim.10 plaintiff, but far from compliance of the written agreement,
defendant spouses Antonio Cardenas and Mae Linda
Cardenas sureptiously[sic] sold the aforestated Lot No. -
Taedo filed a motion for reconsideration of the order, but his motion was 7501-B- to the defendant spouses, Romeo Sim and Pacita
denied on 20 January 1984. 11 Sim on July 23, 1982 as per Deed of Sale notarized by
57
Notary Public, Jorge S. Omega and entered in his Notarial of the Civil Code enumerates the grounds for the extinguishment of an
Register as Doc. No. 462; Page No. -94- Book No. 11, easement. Said article provides:
Series of 1982;
Art. 631. Easements are extinguished:
4. That due to the sale by the defendant spouses Antonio
Cardenas and Mae Linda Cardenas of the property in (1) By merger in the same person of the ownership of the
question to spouses Romeo Sim and Pacita Lim, plaintiff dominant and servient estates;
suffered moral damages in the form of mental anguish,
sleepless nights, mental torture, for which he is entitled to a
(2) By non-user for ten years; with respect to discontinuous
compensation in the amount to be established during the
easements, this period shall be computed from the day on
trial of the case and has incurred litigation expenses subject
which they ceased to be used; and, with respect to
for reimbursentent and attorneys fee in the sum of
continuous easements, from the day on which an act
P10,000.00 which should be chargeable to both defendant
contrary to the same took place;
spouses;13
(3) When either or both of the estates fall into such condition
and the plaintiff (herein petitioner) prayed, among others: "(c) That defendant
that the easement cannot be used; but it shall revive if the
spouses Romeo Sim and Pacita Sim and spouses Antonio Cardenas and
subsequent condition of the estates or either of them should
Mae Linda Cardenas be ordered to pay plaintiff moral damages, litigation again permit its use, unless when the use becomes possible,
expenses and attorneys fees in the amount of P50,000.00." 14 sufficient time for prescription has elapsed, in accordance
with the provisions of the preceding number;
That there was a written agreement, as alleged in the complaint, between the
plaintiff Eduardo Taedo and the defendant Antonio Cardenas is admitted by
(4) By the expiration of the term or the fulfillment of the
the latter. In his answer, he alleged the following: conditions, if the easement is temporary or conditional;

ALLEGATIONS as to written agreement is ADMITTED, but,


(5) By the renunciation of the owner of the dominant estate;
specifically denies that herein defendants SUREPTIOUSLY
[sic] SOLD the lot in question to the other defendant
Spouses Sim the truth is, that the herein defendants [sic] (6) By the redemption agreed upon between the owners of
was required to execute the Deed of Sale described in this the dominant and servient estates.
paragraph 3 as security for the personal loans and other
forms of indebtedness incurred from the Spouses Sims but As can be seen from the above provisions, the alienation of the dominant
never as a conveyance to transfer ownership;15 and servient estates to different persons is not one of the grounds for the
extinguishment of an easement. On the contrary, use of the easement is
Considering this admission of defendant Cardenas, and that his promise to continued by operation of law. Article 624 of the Civil Code provides:
sell Lot 7501-B to Eduardo Taedo appears to be for a valuable
consideration, a trial is necessary to determine, at the very least, the amount Art. 624. The existence of an apparent sign of easement
of damages suffered by the plaintiff Eduardo Tafiedo by reason of such between two estates, established or maintained by the
breach of promise to sell, if indeed there is such a breach. owner of both, shall be considered, should either of them be
alienated, as a title in order that the easement may continue
Moreover, the finding of the trial court that petitioner Taedo's right to actively and passively, unless, at the time the ownership of
continue to use the septic tank, erected on Lot 7501-B, ceased upon the the two estates is divided, the contrary should be provided in
subdivision of the land and its subsequent sale to different owners who do the title of conveyance of either of them, or the sign
not have the same interest,16 also appears to be contrary to law. Article 631 aforesaid should be removed before the execution of the

58
deed. This provision shall also apply in case of the division contains a memorandum of encumbrance of a voluntary easement which has
of a thing owned in common by two or more persons. been carried over from the Original Certificate of Title of Encarnacion S.
Sandico. The certified English translation[5] of the annotation reads:
In the instant case, no statement abolishing or extinguishing the easement of By order dated 08 October 1924 of the Court of First
drainage was mentioned in the deed of sale of Lot 7501-A to Eduardo Instance of Manila, Chamber IV (AP-7571/T-23046), it is
Taedo. Nor did Antonio Cardenas stop the use of the drain pipe and septic declared that Francisco Hidalgo y Magnifico has the right to
tank by the occupants of Lot 7501-A before he sold said lot to Eduardo open doors in the course of his lot described as Lot No. 2,
Tafiedo. Hence, the use of the septic tank is continued by operation of law. Block 2650 of the map that has been exhibited, towards the
Accordingly, the spouses Romeo and Pacita Sim the new owners of the left of the Callejon that is used as a passage and that
servient estate (Lot 7501- B), cannot impair, in any manner whatsoever, the appears as adjacent to the said Lot 2 and to pass through
use of the servitude. 17 the land of Encarnacion Sandico y Santana, until the bank of
the estero that goes to the Pasig River, and towards the right
of the other Callejon that is situated between the said Lot 2
WHEREFORE, the Orders complained of are hereby REVERSED and SET
and Lot 4 of the same Block N.[6]
ASIDE. The respondent judge or another one designated in his place is
directed to proceed with the trial of this case on the merits. With costs As Sandicos property was transferred to several owners, the
memorandum of encumbrance of a voluntary easement in favor of Francisco M.
against private respondents.
Hidalgo was consistently annotated at the back of every title covering Sandicos
property until TCT No. 176253 was issued in petitioners favor. On the other
SO ORDERED. hand, Hidalgos property was eventually transferred to respondents Joseph
Chung, Kiat Chung and Cleto Chung under TCT No. 121488.[7]
UNISOURCE COMMERCIAL AND G.R. No. 173252 On May 26, 2000, petitioner filed a Petition to Cancel the
DEVELOPMENT CORPORATION, Encumbrance of Voluntary Easement of Right of Way[8] on the ground that
Petitioner, Present: the dominant estate has an adequate access to a public road which
is Matienza Street. The trial court dismissed the petition on the ground that it
QUISUMBING, J., Chairperson,
is a land registration case. Petitioner moved for
CARPIO MORALES, reconsideration. Thereafter, the trial court conducted an ocular inspection of
- versus - CHICO-NAZARIO,* the property. In an Order[9] dated November 24, 2000, the trial court granted
LEONARDO-DE CASTRO,** and the motion and made the following observations:
BRION, JJ. 1. The dominant estate is a property
enclosed with a concrete fence with no less
JOSEPH CHUNG, KIAT CHUNG and KLETO Promulgated: than three (3) doors in it, opening to an alley
CHUNG, belonging to the servient estate owned by
Respondents. July 17, 2009 the petitioner. The alley is leading to
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x Matienza St.;
DECISION
QUISUMBING, J.: 2. The dominant estate has a house built
The instant petition assails the Decision[1] dated October 27, thereon and said house has a very wide
2005 and the Resolution[2] dated June 19, 2006 of the Court of Appeals in door accessible to Matienza St. without any
CA-G.R. CV No. 76213. The appellate court had reversed and set aside the obstruction. Said street is perpendicular
Decision[3] dated August 19, 2002 of the Regional Trial Court of Manila, to J.P. Laurel St.
Branch 49, in Civil Case No. 00-97526.
The antecedent facts are as follows: It is therefore found that the dominant estate has an
Petitioner Unisource Commercial and Development Corporation is egress to Matienza St. and does not have to use the servient
the registered owner of a parcel of land covered by Transfer Certificate of estate.[10]
Title (TCT) No. 176253[4] of the Register of Deeds of Manila. The title
59
In their Answer,[11] respondents countered that the extinguishment of in favor of the dominant estate, the same can be extinguished only by mutual
the easement will be of great prejudice to the locality and that petitioner is agreement or by renunciation of the owner of the dominant estate.
guilty of laches since it took petitioner 15 years from acquisition of the The decretal portion of the decision reads:
property to file the petition. WHEREFORE, the foregoing considered, the appeal
In a Decision dated August 19, 2002, the trial court ordered the is hereby GRANTED and the assailed decision
cancellation of the encumbrance of voluntary easement of right of way in is REVERSED and SET ASIDE. Accordingly, the petition to
favor of the dominant estate owned by respondents. It found that the cancel the encumbrance of right of way is dismissed for lack
dominant estate has no more use for the easement since it has another of merit.
adequate outlet to a public road which is Matienza Street. The dispositive No costs.
portion of the decision reads: SO ORDERED.[14]
IN VIEW OF ALL THE FOREGOING, the Court Before us, petitioner alleges that the Court of Appeals erred in:
hereby orders the cancellation of the Memorandum of I.
Encumbrance annotated in TCT No. 176253 which granted a BRUSHING ASIDE PETITIONERS CONTENTION THAT
right of way in favor of the person named therein and, upon THE EASEMENT IS PERSONAL SINCE THE
the finality of this decision, the Register of Deeds of the City ANNOTATION DID NOT PROVIDE THAT IT IS BINDING
of Manila is hereby directed to cancel said encumbrance. ON THE HEIRS OR ASSIGNS OF SANDICO.
II.
With respect to the other prayers in the petition, NOT CONSIDERING THAT THE EASEMENT IS
considering that the same are mere incidents to the exercise PERSONAL SINCE NO COMPENSATION WAS GIVEN TO
by the owners of right of their ownership which they could PETITIONER.
well do without the Courts intervention, this Court sees no III.
need to specifically rule thereon. The Court cannot award DISREGARDING THE CIVIL CODE PROVISION ON
plaintiffs claims for damages and attorneys fees for lack of UNJUST ENRICHMENT.
sufficient bases therefor. IV.
TREATING THE EASEMENT AS PREDIAL.[15]
SO ORDERED.[12] Petitioner contends that the fact that Sandico and Hidalgo resorted to
Respondents appealed to the Court of Appeals. On October 27, judicial intervention only shows that they contested the existence of the
2005, the appellate court reversed the decision of the trial court and requisite factors establishing a legal easement. Besides, the annotation itself
dismissed the petition to cancel the encumbrance of voluntary easement of provides that the easement is exclusively confined to the parties mentioned
right of way. therein, i.e., Sandico and Hidalgo. It was not meant to bind their heirs or
The appellate court ruled that when petitioners petition was initially assigns; otherwise, they would have expressly provided for it. Petitioner adds
dismissed by the executive judge, the copy of the petition and the summons that it would be an unjust enrichment on respondents part to continue
had not yet been served on respondents. Thus, when petitioner moved to enjoying the easement without adequate compensation to
reconsider the order of dismissal, there was no need for a notice of hearing petitioner. Petitioner also avers that to say that the easement has attached
and proof of service upon respondents since the trial court has not yet to Hidalgos property is erroneous since such property no longer exists after it
acquired jurisdiction over them. The trial court acquired jurisdiction over the has been subdivided and registered in respondents respective
case and over respondents only after the summons was served upon them names.[16] Petitioner further argues that even if it is bound by the easement,
and they were later given ample opportunity to present their evidence. the same can be cancelled or revoked since the dominant estate has an
The appellate court also held that the trial court erred in canceling adequate outlet without having to pass through the servient estate.
the encumbrance of voluntary easement of right of way. The appellate court Respondents adopted the disquisition of the appellate court as their
ruled that Article 631(3)[13] of the Civil Code, which was cited by the trial counter-arguments.
court, is inapplicable since the presence of an adequate outlet to a highway The petition lacks merit.
extinguishes only legal or compulsory easements but not voluntary As defined, an easement is a real right on anothers property,
easements like in the instant case. There having been an agreement corporeal and immovable, whereby the owner of the latter must refrain from
between the original parties for the provision of an easement of right of way doing or allowing somebody else to do or something to be done on his
60
property, for the benefit of another person or tenement. Easements are We also hold that although the easement does not appear in
established either by law or by the will of the owner. The former are called respondents title over the dominant estate, the same subsists. It is settled
legal, and the latter, voluntary easements.[17] that the registration of the dominant estate under the Torrens system without
In this case, petitioner itself admitted that a voluntary easement of the annotation of the voluntary easement in its favor does not extinguish the
right of way exists in favor of respondents. In its petition to cancel the easement. On the contrary, it is the registration of the servient estate as free,
encumbrance of voluntary easement of right of way, petitioner alleged that is, without the annotation of the voluntary easement, which extinguishes
that [t]he easement is personal. It was voluntarily constituted in favor of a the easement.[29]
certain Francisco Hidalgo y Magnifico, the owner of [the lot] described as Lot Finally, the mere fact that respondents subdivided the property does
No. 2, Block 2650.[18] It further stated that the voluntary easement of the right not extinguish the easement. Article 618 [30] of the Civil Code provides that if
of way in favor of Francisco Hidalgo y Magnifico was constituted simply by the dominant estate is divided between two or more persons, each of them
will or agreement of the parties. It was not a statutory easement and may use the easement in its entirety, without changing the place of its use, or
definitely not an easement created by such court order because [the] Court making it more burdensome in any other way.
merely declares the existence of an easement created by the parties.[19] In its WHEREFORE, the instant petition is DENIED. The Decision
Memorandum[20] dated September 27, 2001, before the trial court, petitioner dated October 27, 2005 and the Resolution dated June 19, 2006 of the Court
reiterated that [t]he annotation found at the back of the TCT of Unisource is a of Appeals in CA-G.R. CV No. 76213 are AFFIRMED.
voluntary easement.[21] SO ORDERED.
Having made such an admission, petitioner cannot now claim that
what exists is a legal easement and that the same should be cancelled since
the dominant estate is not an enclosed estate as it has an adequate access BRYAN U. VILLANUEVA, petitioner, vs. HON. TIRSO D.C. VELASCO in
to a public road which is Callejon Matienza Street.[22] As we have said, the his capacity as Presiding Judge of the Regional Trial Court of
opening of an adequate outlet to a highway can extinguish only legal or Quezon City, Branch 88, JULIO N. SEBASTIAN and SHIRLEY
compulsory easements, not voluntary easements like in the case at bar. The LORILLA, respondents.
fact that an easement by grant may have also qualified as an easement of
necessity does not detract from its permanency as a property right, which DECISION
survives the termination of the necessity.[23] A voluntary easement of right of
way, like any other contract, could be extinguished only by mutual agreement QUISUMBING, J.:
or by renunciation of the owner of the dominant estate.[24]
Neither can petitioner claim that the easement is personal only This petition for certiorari assails (1) the decision[1] dated December 27,
to Hidalgo since the annotation merely mentioned Sandico 1996 of the Court of Appeals in CA-G.R. SP No. 39166, dismissing
and Hidalgo without equally binding their heirs or assigns. That the heirs or petitioners petition for review under Rule 65 with prayer for the issuance of a
assigns of the parties were not mentioned in the annotation does not mean cease and desist order and/or temporary restraining order, and (2) the
that it is not binding on them. Again, a voluntary easement of right of way is resolution[2]dated August 14, 1997 denying the subsequent motion for
like any other contract. As such, it is generally effective between the parties, reconsideration.
their heirs and assigns, except in case where the rights and obligations
arising from the contract are not transmissible by their nature, or by Petitioner Bryan Villanueva is the registered owner of the parcel of land
stipulation or by provision of law.[25] Petitioner cites City of Manila v. covered by Transfer Certificate of Title No. 127862 of the Register of Deeds
Entote[26] in justifying that the easement should bind only the parties of Quezon City. He bought it from Pacific Banking Corporation, the
mentioned therein and exclude those not so mentioned. However, that case mortgagee of said property. The bank had acquired it from the spouses
is inapplicable since the issue therein was whether the easement was Maximo and Justina Gabriel at a public auction on March 19, 1983. When
intended not only for the benefit of the owners of the dominant estate but of petitioner bought the parcel of land there was a small house on its
the community and the public at large.[27] In interpreting the easement, the southeastern portion. It occupied one meter of the two-meter wide easement
Court ruled that the clause any and all other persons whomsoever in the of right of way the Gabriel spouses granted to the Espinolas, predecessors-
easement embraces only those who are privy to the owners of the dominant in-interest of private respondents, in a Contract of Easement of Right of
estate, Lots 1 and 2 Plan Pcs-2672 and excludes the indiscriminate public Way. The pertinent portion of the contract dated November 28, 1979, states:
from the enjoyment of the right-of-way easement.[28]
61
. . . in order to have an access to and from their aforementioned land where On January 5, 1995, Judge Tirso Velasco of the RTC in Quezon City,
their houses are constructed and to have an outlet to Tandang Sora Ave. Branch 88, issued an Alias Writ of Demolition. On June 20, 1995, the sheriff
which is the nearest public road and the least burdensome to the servient tried to demolish the small house pursuant to the writ. Petitioner filed a Third
estate and to third persons, it would be necessary for them to pass Party Claim with Prayer to Quash Alias Writ of Demolition. He maintains that
through spouses MAXIMO GABRIEL and JUSTINA CAPUNOs land and for the writ of demolition could not apply to his property since he was not a party
this purpose, a path or passageway of not less than two (2) meters wide of to the civil case. His Third Party Claim with prayer to quash the writ of
said spouses property is necessary for the use of ROMEO, RODOLFO, demolition was denied for lack of merit on August 16, 1995.[6] The motion for
NENITA and AURORA ESPINOLA and for all their needs in entering their reconsideration as well as the Supplemental Motion for Reconsideration
property. dated September 12, 1995 were denied on October 19, 1995.[7]
Petitioner, thereafter, filed a petition for certiorari before the Court of
WHEREFORE, in view of the fact that the property of the ESPINOLA had Appeals, docketed as CA-G.R. SP No. 39166, asserting that the existence of
been bought by them from MAXIMO CAPUNO, father of MAXIMO GABRIEL, the easement of right of way was not annotated in his title and that he was
spouses MAXIMO GABRIEL and JUSTINA CAPUNO hereby agree and not a party to Civil Case No. Q-91-8703, hence the contract of easement
permit RODOLFO, ROMEO, NENITA and AURORA ESPINOLA and their executed by the Gabriels in favor of the Espinolas could not be enforced
families to have a permanent easement of right of way over the against him. The Court of Appeals dismissed the petition for lack of merit and
aforementioned property of said spouses limited to not more than two meters denied the reconsideration, disposing thus:
wide, 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; WHEREFORE, the instant petition is hereby dismissed by this court for lack
of merit.
This Agreement shall be binding between the parties and upon their heirs,
successors, assigns, without prejudice in cases of sale of subject property No costs considering the failure of private respondents to file their comment,
that will warrant the circumstances.[3] despite notice.[8]

Unknown to petitioner, even before he bought the land, the Gabriels had Hence, this instant petition.
constructed the aforementioned small house that encroached upon the two- Petitioner now avers that the appellate court erred in declaring,
meter easement. Petitioner was also unaware that private respondents, Julio
Sebastian and Shirley Lorilla, had filed on May 8, 1991, Civil Case No. Q-91-
(1) THAT FOLLOWING THE ESSENCE OF INHERENCE AND
8703, for easement, damages and with prayer for a writ of preliminary
INTRANSMISSIBILITY OF AN EASEMENT, A RIGHT OF WAY CAN EXIST
injunction and/or restraining order against the spouses Gabriel. [4] As
EVEN IF THEY ARE NOT EXPRESSLY STATED OR ANNOTATED ON
successors-in-interest, Sebastian and Lorilla wanted to enforce the contract
THE TORRENS TITLE;
of easement.
On May 15, 1991, the trial court issued a temporary restraining (2) THAT PETITIONER, AS PROSPECTIVE BUYER, SHOULD HAVE
order. On August 13, 1991, it issued a writ of preliminary mandatory EXERCISED ORDINARY PRUDENCE BY TAKING THE INITIATIVE TO
injunction ordering the Gabriels to provide the right of way and to demolish DETERMINE THAT AN EASEMENT HAS BEEN CONSTITUTED ON THE
the small house encroaching on the easement. On August 15, 1991, the PROPERTY HE INTENDS TO BUY; AND,
Gabriels filed a motion for reconsideration which was also denied. Thus, they
filed a petition for certiorari before the Court of Appeals. (3) THAT IN AS MUCH AS THE HEREIN PETITIONER IS NOT A PARTY
On March 26, 1992, the Eighth Division of the Court of Appeals TO CIVIL CASE NO. Q-91-8703, HE CANNOT BE BOUND BY ANY
dismissed the petition and upheld the RTCs issuances. The decision became JUDGMENT OR ORDER RENDERED THEREIN.[9]
final and executory on July 31, 1992.[5]
Primarily, the issue is whether the easement on the property binds
petitioner.
62
Petitioner argues it could not be enforced against him. First, he says for in said Article 617 of the Civil Code. The essential requisites for an
that a right of way cannot exist when it is not expressly stated or annotated easement to be compulsory are: (1) the dominant estate is surrounded by
on the Torrens title. According to him, even if an easement is inherent and other immovables and has no adequate outlet to a public highway; (2) proper
inseparable from the estate to which it actively belongs as provided in Art. indemnity has been paid; (3) the isolation was not due to acts of the
617 of the Civil Code,[10] the same is extinguished when the servient estate is proprietor of the dominant estate; (4) the right of way claimed is at a point
registered and the easement was not annotated in said title conformably with least prejudicial to the servient estate; and (5) to the extent consistent with
Section 39 of the Land Registration Law. Second, petitioner points out that the foregoing rule, where the distance from the dominant estate to a public
the trial court erred when it faulted him for relying solely on the clean title of highway may be the shortest.[15] The trial court and the Court of Appeals
the property he bought, as it is well-settled that a person dealing with have declared the existence of said easement (right of way). This finding of
registered land is not required to go beyond what is recorded in the title. He fact of both courts below is conclusive on this Court,[16] hence we see no
adds that it is private respondents who should have made sure their right of need to further review, but only to re-affirm, this finding. The small house
way was safeguarded by having the same annotated on the title with the occupying one meter of the two-meter wide easement obstructs the entry of
Register of Deeds. He adds that Section 76 of P.D. No. 1529[11] also requires private respondents cement mixer and motor vehicle. One meter is
that when a case is commenced involving any right to registered land under insufficient for the needs of private respondents. It is well-settled that the
the Land Registration Law (now the Property Registration Decree), any needs of the dominant estate determine the width of the
decision on it will only be effectual between or among the parties thereto, easement.[17] Conformably then, petitioner ought to demolish whatever
unless a notice of lis pendens of such action is filed and registered in the edifice obstructs the easement in view of the needs of private respondents
registry office where the land is recorded. There was no such annotation in estate.
the title of the disputed land, according to petitioner. Lastly, since he was not
a party to Civil Case No. Q-91-8703, petitioner argues that he cannot be Petitioners second proposition, that he is not bound by the contract of
bound by the writ of demolition and be forcibly divested of a portion of his easement because the same was not annotated in the title and that a notice
land without having his day in court. of lis pendens of the complaint to enforce the easement was not recorded
with the Register of Deeds, is obviously unmeritorious. As already explained,
Private respondents Sebastian and Lorilla, for their part, adopted the it is in the nature of legal easement that the servient estate (of petitioner) is
disquisition of the appellate court as their Comment and asked for the legally bound to provide the dominant estate (of private respondents in this
dismissal of the petition and P100,000.00 in damages. In its decision the case) ingress from and egress to the public highway.
appellate court, citing the decision of the lower court, stressed that unlike
other types of encumbrance of real property, a servitude like a right of way Petitioners last argument that he was not a party to Civil Case No. Q-91-
can exist even if they are not expressly stated or annotated as an 8703 and that he had not been given his day in court, is also without
encumbrance in a Torrens title because servitudes are inseparable from the merit. Rule 39, Sec. 47, of the Revised Rules of Court:
estates to which they actively or passively belong. Moreover, Villanueva was
bound by the contract of easement, not only as a voluntary easement but as SEC. 47. Effect of judgments or final orders. The effect of a judgment or final
a legal easement. A legal easement is mandated by law, and continues to order rendered by a court of the Philippines, having jurisdiction to pronounce
exists unless its removal is provided for in a title of conveyance or the sign of the judgment or final order, may be as follows:
the easement is removed before the execution of the conveyance
conformably with Article 649[12]in accordance with Article 617[13] of the Civil (a) In case of a judgment or final order against a specific thing, or in respect
Code. 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
At the outset, we note that the subject easement (right of way) originally particular person or his relationship to another, the judgment or final order is
was voluntarily constituted by agreement between the Gabriels and the conclusive upon the title to the thing, the will or administration, or the
Espinolas. But as correctly observed by the Court of Appeals, the easement
condition, status or relationship of the person; however, the probate of a will
in the instant petition is both (1) an easement by grant or a voluntary or granting of letters of administration shall only be prima facie evidence of
easement, and (2) an easement by necessity or a legal easement. A legal
the death of the testator or intestate;
easement is one mandated by law, constituted for public use or for private
interest, and becomes a continuing property right.[14] As a compulsory
easement, it is inseparable from the estate to which it belongs, as provided
63
(b) In other cases, the judgment or final order is, with respect to the matter ADELAIDA CARREON,
directly adjudged or as to any other matter that could have been raised in Respondents. September 27, 2007
relation thereto, conclusive between the parties and their successors in
interest by title subsequent to the commencement of the action or x-----------------------------------------------------------------------------------------x
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 successors in DECISION
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 SANDOVAL-GUTIERREZ, J.:
thereto. (Emphasis ours).
Challenged in the instant Petition for Review on Certiorari[1] are the
Simply stated, a decision in a case is conclusive and binding upon the
Decision[2] of the Court of Appeals dated March 12, 2001 and its Resolution
parties to said case and those who are their successor in interest by title after
dated June 21, 2001 in CA-G.R. CV No. 60511.
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-
Spouses Amadeo and Adelaida Carreon, respondents, are the owners of a
91-8703 on May 8, 1991,[19] against the original owners, the spouses Maximo house and Lots Nos. 8-B and 8-C located in Cebu City
and Justina Gabriel. Title in the name of petitioner was entered in the covered by Transfer Certificates of Title (TCT) Nos. 61049 and 56745,
Register of Deeds[20] on March 24, 1995, after he bought the property from
respectively, of the Registry of Deeds, same city.
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
On the other hand, Anita Linda Rodriguez is the owner of Lot No. 6213-A-2
is a successor-in-interest by title subsequent to the commencement of the
covered by TCT No. 93402. It is situated within the vicinity of respondent
action in court. spouses lots.
WHEREFORE, the instant petition is DENIED. The assailed decision
and resolution of the Court of Appeals are AFFIRMED. Costs against As there is no existing way from their property to the nearest road,
petitioner. respondents filed with the Regional Trial Court (RTC), Branch
22, Cebu City a complaint for easement of right of way against Rodriguez,
SO ORDERED. docketed as Civil Case No. CEB-7426. During the pre-trial, the RTC found
that there is another servient estate, owned by Mr. and Ms. Anselmo Jardin
which could be used by respondents as a right of way.Respondents then
LEO WINSTON BRIN LEE, G.R. No. 149023
filed a Motion for Leave to Admit Amended Complaint to include spouses
Petitioner,
Jardin as co-defendants, the latter being owners of Lots Nos. 6213-A-3,
6213-A-4 and 8-A located on the eastern side of respondents
Present:
property. On June 9, 1989, the RTC issued an Order admitting the Amended
Complaint.
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
However, the lots of spouses Jardin were sold pendente lite to Leo Winston
-versus- CORONA,
Brin Lee, petitioner. As a result, respondents filed a Motion for Leave to
AZCUNA, and
GARCIA, JJ. Admit Second Amended Complaint impleading petitioner as additional
defendant. On September 10, 1993, the RTC granted the motion.

After trial, the RTC rendered Judgment in favor of respondents and


SPOUSES AMADEO and Promulgated:
against petitioner, the dispositive portion of which reads:
64
FOR ALL THE FOREGOING, judgment is hereby Petitioner filed a motion for reconsideration but it was denied by the appellate
rendered for the plaintiffs as follows: court in its Resolution of June 21, 2001.
1. Ordering defendant Mr. Leo Winston Brin Lee to
grant plaintiffs a right of way on the northern portion of his Hence, the present petition.
properties as indicated in Exh.9-Lee measuring one-meter
wide and thirteen meters long; Petitioner contends that respondents have an existing right of way; and that
had the trial court considered certain testimonial evidence and respondents
2. Ordering Mr. Leo Winston Brin Lee to demolish admissions, its conclusion and that of the Court of Appeals would have been
the fence/structure to the extent obstructing the right of way different.
hereinabove constituted;
3. Ordering plaintiffs to solidarily pay defendant Lee Respondents, on the other hand, pray that the petition be denied for lack of
the amount of THREE THOUSAND PESOS (P3,000.00) per merit.
sq. m. or a total of THIRTY NINE THOUSAND PESOS
(P39,000.00) as payment of indemnity, on or before the The issue for our resolution is whether the Court of Appeals erred in ruling
complete establishment thereof; that respondents are entitled to an easement of right of way on petitioners
4. Further ordering plaintiffs to solidarily pay property. This issue is both factual and legal in nature.
defendant Lee the amount of TWENTY FIVE THOUSAND The conferment of a legal easement of right of way is governed by Articles
PESOS (P25,000.00) as the value of the wall/fence to be 649 and 650 of the Civil Code reproduced as follows:
demolished likewise on or before the complete
establishment of the easement; and
5. All counterclaims are hereby dismissed for lack of ART. 649. The owner, or any person who by virtue
merit. of a real right may cultivate or use any immovable, which is
NO PRONOUNCEMENT AS TO COSTS. surrounded by other immovables pertaining to other persons
SO ORDERED. and without adequate outlet to a public highway, is entitled to
demand a right of way through the neighboring estates, after
payment of the proper indemnity.
Should this easement be established in such a
manner that its use may be continuous for all the needs of
the dominant estate, establishing a permanent passage, the
indemnity shall consist of the value of the land occupied and
the amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary
passage for the cultivation of the estate surrounded by
On appeal by petitioner, the Court of Appeals, in its assailed Decision, others and for the gathering of its crops through the servient
affirmed the RTC Judgment, thus: estate without a permanent way, the indemnity shall consist
in the payment of the damage caused by such
WHEREFORE, premises considered, the present encumbrance.
appeal is hereby DISMISSED, for lack of merit. The
appealed Decision dated June 24, 1997 of This easement is not compulsory if the isolation of
the Regional Trial Court of Cebu City, Branch 22 in Civil the immovable is due to the proprietors own acts.
Case No. CEB-7426 is hereby AFFIRMED.
No pronouncement as to costs. ART. 650. The easement of right of way shall be
SO ORDERED. established at the point least prejudicial to the servient
estate, and, insofar as consistent with this rule, where the
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distance from the dominant estate to a public highway may Anent the third requisite, records show that the isolation of respondents
be the shortest. property is not due to their fault. Actually, it is surrounded by estates of other
persons, leaving respondents no adequate ingress or egress to a public
highway.
To be entitled to an easement of right of way, the following requisites should
be met: Going now to the fourth requisite that the right of way claimed is at
the point least prejudicial and shortest distance to the servient estate, the
1. the dominant estate is surrounded by other Court of Appeals held: We find the same to be present in the case at
immovables and has no adequate outlet to a public highway bar. Moreover, it should be emphasized that what respondent spouses asked
(Art. 649, par. 1); for was merely a one (1) meter wide pathway. The trial court found that this
2. there is payment of proper indemnity (Art. 649, easement will only affect a small portion of petitioners lot which has a total
par. 1); area of 249 square meters.[5] Only his fence will be affected, the damage of
3. the isolation is not due to the acts of the proprietor which respondent spouses are willing to pay.
of the dominant estate (Art. 649, last par.); and
4. the right of way claimed is at the point least Verily, we find no cogent reason to disturb the Decision of the Court
prejudicial to the servient estate; and insofar as consistent of Appeals affirming the Judgment of the trial court.
with this rule, where the distance from the dominant estate to
a public highway may be the shortest (Art. 650).[3] WHEREFORE, we DENY the petition. The challenged Decision and
All the above requisites are present here. Resolution of the Court of Appeals in CA-G.R. CV No. 60511
are AFFIRMED. Costs against petitioner.
As regards the first requisite, the parties agreed that respondents
property is surrounded by the estates of other persons, including that of SO ORDERED.
petitioner. The only dispute is whether respondents have an adequate outlet
to the nearest road. The Court of Appeals held:

x x x What defendant-appellant insists is that


plaintiffs-appellees can use another outlet leading to the
nearest road by traversing several small lots and thereafter
use the northern portion of his property which he is willing to
be the subject of a right of way. The trial court found that
plaintiffs-appellees managed to reach the nearest road
through any passage available, passing through several lots
as they were unobstructed by any structure of fence.
However, as correctly ruled by the court a quo, this is not the
adequate outlet referred to by law. Plaintiffs-appellees have
every right in accordance with law to formally demand for an
adequate outlet sufficient for their needs. Moreover, the
alternative route referred to by defendant-appellant appears
to be merely a proposed outlet, not yet in existence. x x x

The second requisite is that payment of indemnity has been


complied with. Respondents have consistently maintained that they are
willing to pay the area affected at a reasonable price that may be fixed by the
Court.[4]

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