EN BANC
otherwise be entitled to the remedy in case it appears that he himself acted
[G.R. No. 42334. October 31, 1936.]
NORTH NEGROS SUGAR CO., INC., plaintiff-appellant, vs. SERAFIN HIDALGO,
defendant-appellee.
Hilado & Hilado for appellant.
Simeon Bitanga for appellee.
Ross, Lawrence, Selph & Carrascoso and DeWitt, Perkins & Ponce Enrile as amici
curiae.
SYLLABUS
1. INJUNCTION; REMEDY SOUGHT AS PRINCIPAL RELIEF; REQUISITES. — The
plaintiff prays in its complaint against the defendant that an injunction be issued,
restraining the defendant from entering or passing through the properties of the
plaintiff, specially through the "mill site" of plaintiff's sugar central. The injunction
applied for, constitutes, unlike the auxiliary and subordinate remedy that it
ordinarily is, the principal remedy itself. The relief should only be granted,
therefore, after it has been established not only that the right sought to be
protected exists, but also that the acts against which the injunction is to be
directed are violative of said right.
2. ID.; ID.; ID. — "The existence of a right violated is a prerequisite to the granting
of an injunction. . . . A permanent injunction should not be awarded except in a
clear case and to prevent irreparable injury." (32 C.J., 34-36.) "A court of chancery
will not entertain a bill to enforce a mere valueless abstract right, and the court
will, on its own motion, raise the point for its own protection." (Dunnom vs.
Thomsen, 58 Ill. App., 390.) None of these requisites is present in the instant case.
There has been a failure to establish either the existence of a clear and positive
right of the plaintiff specially calling for judicial protection through an
extraordinary writ of the kind applied for, or that the defendant has committed
or attempts to commit any act which has endangered or tends to endanger the
existence of said right, or has injured or threatens to injure the same.
3. ID.; ID.; PRIVATE ROAD OPEN TO PUBLIC USE. — When a private road has been
thrown open to public use, no action for trespass is maintainable against any
person who desires to make use thereof; consequently, an injunction suit likewise
does not lie. "Private roads, except where laid out under constitutional provisions
authorizing the condemnation of private property for a private use, are public
roads in the sense that they are open to all who see fit to use them, and it is
immaterial that the road is subject to gates and bars, or that it is merely a cul de
sac. Being thus considered as a public road, it necessarily follows that the owner
of the land through which the road is laid out cannot maintain an action of
trespass against any person using it." (50 C.J., pp. 397, 398.) ". . . Where it is clear
that the complainant does not have the right that he claims, he is not entitled to
an injunction, either temporary or perpetual, to prevent a violation of such
supposed right. . . . An injunction will not issue to protect a right not in esse and
which may never arise or to restrain an act which does not give rise to a cause of
action, . . .." (32 C.J., pp. 34, 35.)
4. ID.; ID.; ID. — Plaintiff states in the sixth paragraph of its amended complaint:
"6. That, in addition, the plaintiff, in the exercise of its property rights, does not
want to allow the entry of the defendant in any part of its estate above-
mentioned in order to avert any friction or ill-feeling against him." The plaintiff, in
petitioning the courts for an injunction to avert "friction or ill- feeling" against the
defendant, invoking its sacred property rights, attempts to intrust to them a
mission at once beyond those conferred upon them by the Constitution and the
laws, and unbecoming of their dignity and decorum.
5. ID.; ID.; FAILURE TO ESTABLISH DAMAGE AGAINST WHICH THE INJUNCTION IS
INVOKED. — Plaintiff has not established the existence, real or probable, of the
alleged damage against which the injunction is invoked. Plaintiff's admission in its
brief (p. 15) that it has not been established that the defendant has brought tuba
to the "mill site," or has sold it within its property, is fatal to the present action
charging the defendant with said acts.
6. ID.; ID.; PRINCIPLE OF EQUITY. — The well-known principle of equity that "he
also comes to equity must come with clean hands" bars the granting of the
remedy applied for by the plaintiff. Plaintiff, in order to obtain a preliminary
injunction, trifled with the good faith of the lower court by knowingly making
untrue allegations on matters important and essential to its cause of action.
Consequently, it did not come to court with clean hands. "Coming into equity with
clean hands. — The maxim that he who comes into equity must come with clean
hand is, of course, applicable in suits to obtain relief by injunction. Injunction will
1
be denied even though complainant shows that he has a right and would
dishonestly, fraudulently or illegally in respect to the matter in which redress is
sought, or where he has encouraged, invited or contributed to the injury sought
to be enjoined. However, the general principle that he who comes into equity
must come with clean hands applies only to plaintiff's conduct in relation to the
very matter in litigation. The want of equity that will bar a right to equitable relief
for coming into court with unclean hands must be so directly connected with the
matter in litigation that it has affected the equitable relations of the parties arising
out of the transaction in question." (32 C.J., pp. 67, 68.)
7. ID.; ID.; JUDICIAL DISCRETION. — The exercise of discretion by trial courts in
matters injunctive should not be interfered with by appellate courts except in
cases of manifest abuse. ". . . The court which is to exercise the discretion is the
trial court and not the appellate court. The action of the court may be reviewed
on appeal or error in case of a clear abuse of discretion, but not otherwise, and
ordinarily mandamus will not lie to control such discretion." (32 C.J., sec. 11, p.
33.) True, the rule has particular application to preliminary injunctions, but the
rule should not be otherwise with respect to permanent injunctions especially
where, as in this case, set the same aside in its final decision on a careful review
of the evidence.
8. ID.; ID.; VOLUNTARY EASEMENT. — This is a case of an easement of way
voluntarily constituted in favor of a community. (Civil Code, arts. 531 and 594.)
There is nothing in the constitution of this easement in violation of law or public
order, except perhaps that the right to open roads and charge passage fees
therefor is the State's by right of sovereignty and may not be taken over by a
private individual without the requisite permit. This, however, would effect the
right of the plaintiff to charge tolls, but not that of the defendant or of any other
person to make use of the easement.
9. ID.; ID.; ID. — Voluntary easements under article 594 are not contractual in
nature; they constitute the act of the owner. If he exacts any condition, like the
payment of a certain indemnity for the use of the easement, any person who is
willing to pay it may make use of the easement. If the contention be made that a
contract is necessary, it may be stated that a contract exists from the time all
those who desire to make use of the easement are disposed to pay the required
indemnity.
10. ID.; ID.; ID. — The plaintiff contends that the easement of way is intermittent
in nature and can only be acquired by virtue of a title under article 539. The
defendant, however, does not lay claim to it by prescription. The title in this case
consists in the fact that the plaintiff has offered the use of this road to the general
public upon payment of a certain sum as passage fee in the case of motor vehicles.
11. ID.; ID.; ID.; CASES DISTINGUISHED. — The cases of Roman Catholic Archbishop
of Manila vs. Roxas (22 Phil., 450), and Cuaycong vs. Benedicto (37 Phil., 781), are
not controlling, as there the attempt was to establish that the right to an
easement of way had been acquired by prescription. Here defendant's contention
is, that while the road in question remains open to the public, he has a right to its
use upon paying the passage fees required by the plaintiff. Indeed the latter may
close it at its pleasure, as no period had been fixed when the easement was
voluntarily constituted, but while the road is thrown open, the plaintiff may not
capriciously exclude the defendant from its use.
12. ID.; ID.; ID.; PUBLIC INTEREST. — Having been devoted by the plaintiff to the
use of the public in general, upon paying the passage fees required in the case of
motor vehicles, the road in question is charged with a public interest, and while
so devoted, the plaintiff may not establish discriminatory exceptions against any
private person. "When private property is affected with a public interest, it ceases
to be juris privati only; as if a man set out a street in new building on his own land,
it is now no longer bare private interest, but is affected by a public interest." (Lord
Chief Justice Hale in his treatise "De Portibus Maris," quoted with approval in
Munn vs. Illinois, 94 U.S., 113 [1876], and in Nebbia vs. New York, 291 U.S., 502
[1934].)
13. ID.; ID.; ID.; PUBLIC UTILITY. — The circumstance that the road in question
does not properly fall within the definition of a public utility provided in Act No.
3108, does not divest it of this character: " . . . whether or not a given business,
industry, or service is a public utility does not depend upon legislative definition,
but upon the nature of the business or service rendered, and an attempt to
declare a company or enterprise to be a public utility, where it is inherently not
such, is, by virtue of the guaranties of the federal constitution, void whether it
interferes with private rights of property or contract. So a legislature cannot by
mere flat or regulatory order convert a private business or enterprise into a public
utility, and the question whether or not a particular company or service is a public
utility is a judicial one, and must be determined as such by a court of competent
jurisdiction; . . .." (51 C.J., sec. 3, p. 5.)
14. ID.; ID.; ID. — The road in question being a public utility, or, to be more exact,
a private property affected with a public interest, it is not lawful to make arbitrary
exceptions with respect to its use and enjoyment. "Duty to Serve Without
Discrimination. — A public utility is obliged by the nature of its business to furnish
its service or commodity to the general public, or that part of the public which it
has undertaken to serve, without arbitrary discrimination, and it must, to the
extent of its capacity, serve all who apply, on equal terms and without distinction,
so far as they are in the same class and similarly situated. Accordingly, a utility
must act toward all members of the public impartially, and treat all alike; and it
cannot arbitrarily select the persons for whom it will perform its service or furnish
its commodity, nor refuse to one a favor or privilege it has extended to another,
since the term 'public utility' precludes the idea of service which is private in its
nature and is not to be obtained by the public. Such duties arise from the public
nature of a utility, and statutes providing affirmatively therefor are merely
declaratory of the common law." (51 C.J., sec. 16, p.7.)
15. ID.; ID.; ID. — The circumstance that the plaintiff is not the holder of a
franchise or of a certificate of public convenience, or that it is a company devoted
principally to the manufacture of sugar and not to the business of public service,
or that the State has not as yet assumed control or jurisdiction over the operation
of the road in question by the plaintiff, does not preclude the idea that the said
road is a public utility.
16. ID.; ID.; ID. — "When private property is devoted to public use in the business
of a public utility, certain reciprocal rights and duties are raised by implication of
law between the utility and the public it undertakes to serve, and no contract
between them is necessary to give rise thereto. . . ." (51 C.J., sec. 12, p. 6.)
DECISION
RECTO, J p:
On October 12, 1933, the plaintiff filed before the Court of First Instance of
Occidental Negros a complaint praying, upon the allegations contained therein,
that an injunction be issued, restraining the defendant from entering or passing
through the properties of the plaintiff, specially through the "mill site" of plaintiffs
sugar central.
It appears that the plaintiff is the owner of a site in which is located its sugar
central, with its factory building and residence for its employees and laborers,
known as the "mill site." It also owns the adjoining sugar plantation known as
Hacienda "Begoña." Across its properties the plaintiff constructed a road
connecting the "mill site" with the provincial highway. Through this road plaintiff
allowed and still allows vehicles to pass upon payment of a tool charge of P0.15
for each truck or automobile. Pedestrians are allowed free passage through it.
Immediately adjoining the above-mentioned "mill site" of the plaintiff is the
hacienda of Luciano Aguirre, known as Hacienda "Sañgay," where the defendant
has a billiard hall and a tuba saloon. Like other people in the about the place,
defendant used to pass through the said road of the plaintiff, because it was his
only means of access to the Hacienda "Sañgay" where he runs his billiard hall and
tuba saloon. Later on, by order of the plaintiff, every time that the defendant
passed driving his automobile with a cargo of tuba plaintiff's gatekeeper would
stop him and prevent him from passing through said road. Defendant in such
cases merely deviated from said road and continued on his way to the Hacienda
"Sañgay" across the fields of Hacienda "Begoña," likewise belonging to the
plaintiff.
The alleged conveyance of tuba to plaintiff's "mill site" or the sale thereof within
its property has not been established by the evidence adduced in this case. This
the plaintiff admits in its brief (p. 15). Neither is there any evidence to show that
the defendant actually created disturbance in plaintiff's properties, including its
"mill site." Other pertinent facts will be stated in appropriate places in this
decision.
A. First of all it may be stated that in the case at bar the injunction applied for,
constitutes, unlike the auxiliary and subordinate remedy that it ordinarily is, the
principal remedy itself. The relief should only be granted, therefore, after it has
been established not only that the right sought to be protected exists, but also
that the acts against which the injunction is to be directed are violative of said
right.
"SEC. 164. Circumstances under which a preliminary injunction may be granted. A
preliminary injunction may be granted when it is established, in the manner
hereinafter provided, to the satisfaction of the judge granting it:
"1. That the plaintiff is entitled to the relief demanded and such relief, or any part
thereof, consists in restraining the commission or continuance of the acts
complained of either for a limited period or perpetually;
"2. That the commission or continuance of some act complained of during the
litigation would probably work injustice to the plaintiff;
2
"3. That the defendant is doing, or threatens, or is about to do, or is procuring or
suffering to be done, some act probably in violation of the plaintiff's rights,
respecting the subject of the action, and tending to render the judgment
ineffectual." (Code of Civil Procedure.)
"In order that, at the final trial of a case, an injunction may issue perpetually
prohibiting the repetition or continuation of an act complained of, it is
indispensable that it shall have been proven at trial that he who seeks such a
remedy is entitled to ask for it; if he is not, his request must be denied." (Tumacder
vs. Nueva, 16 Phil., 513.)
"The extraordinary remedy of injunction will not be granted to prevent or remove
a nuisance unless there is a strong case of pressing necessity, and not because of
a trifling discomfort." (De Ayala vs. Barretto, 33 Phil., 538.)
"The existence of a right violated is a prerequisite to the granting of an injunction.
. . . A permanent injunction should not be awarded except in a clear case and to
prevent irreparable injury." (32 C.J., 34-36.)
"A court of chancery will not entertain a bill to enforce a mere valueless abstract
right, and the court will, on its own motion, raise the point for its own protection."
(Dunnom vs. Thomsen, 58 Ill. App., 390.)
None of these requisites is present in the instant case. There has been a failure to
establish either the existence of a clear and positive right of the plaintiff specially
calling for judicial protection through an extraordinary writ of the kind applied for,
or that the defendant has committed or attempts to commit any act which has
endangered or tends to endanger the existence of said right, or has injured or
threatens to injure the same.
In obtaining ex-parte a preliminary injunction in the lower court, the plaintiff
made under oath in its complaint the following allegations, which later turned out
to be untrue, or, at least, beyond the capacity of plaintiff to prove:
"3. That on sundry occasions heretofore, the defendant used to go to the said 'mill
site' of the plaintiff, passing over the latter's private roads, and there caused
trouble among the peaceful people of the place.
"4. That the plaintiff, through its representatives, has prohibited the defendant
from entering its private property, but this notwithstanding, the defendant still
persists in repeating his incursions into the said private roads and 'mill site' of the
plaintiff, disturbing public order and molesting plaintiff's employees and their
families."
The court, in its order granting the preliminary injunction, said:
"Considering the said complaint and the sworn statement of its correctness filed
by plaintiff's attorneys 1 and it appearing satisfactorily that the issuance of a
preliminary injunction is in order because of the sufficiency of the grounds
alleged, upon the filing of a bond, it is hereby, etc. . . .."
After obtaining the preliminary injunction, the plaintiff amended its complaint by
eliminating therefrom those very allegations upon which the court granted the
temporary remedy, namely, the acts imputed to the defendant "of causing
trouble among the peaceful people of plaintiff's 'mill site,' and of disturbing public
order and molesting plaintiff's employees and their families within the private
roads and the 'mill site' of the plaintiff." The plaintiff doubtless overlooked the
fact that the allegation it availed of to obtain a preliminary injunction was
necessary to secure one of a permanent character. In its new complaint, its only
grievance is that the defendant insists in passing through its property to take tuba
to the Hacienda "Sañgay" (which does not belong to the plaintiff but to Luciano
Aguirre, and where the defendant has established a legitimate business). The
amended complaint no longer alleges that the defendant went to the "mill site"
and to the private roads of the plaintiff "to cause trouble, disturb public order and
molest plaintiff's employees and their families.".
It develops, however, that neither the original complaint nor the one amended
states how and why the mere passage of the defendant over plaintiff's estate to
convey tuba to the Hacienda "Sañgay" has caused damages to plaintiff's property
rights, requiring the unusual intervention and prohibition thereof of the courts
through injunctive relief. The plaintiff failed not only to make any allegation to
this effect, but also to state that the road on its property where the defendant
used to pass on his way to the Hacienda "Sañgay" was open to the public in
general, and that the plaintiff, exercising without any permit a power exclusively
lodged in the state by reason of its sovereign capacity, required the payment of
passage fees for the use of said road.
Now, there being no contention here that the defendant, in passing over plaintiff's
estate to take tuba to the Hacienda "Sañgay," occasioned damages to such estate,
or that he sold tuba within the confines thereof, what could have been the basis
of plaintiff's right for which the special protection of the court is invoked, and of
the illegal act laid at defendant's door? Defendant's passage over plaintiff's
property does not, of itself, constitute an unlawful act inasmuch as the plaintiff,
of its own accord, opened the same to the public conditioned only upon the
payment of transit fees by motor vehicles. Neither does the mere transportation
of tuba over plaintiff's estate amount to a violation of the latter's property rights,
unless the goods' destination be at any point within the confines thereof, or
unless the said goods be sold in transit to the laborers and employees of the
plaintiff, which, as plaintiff itself admits in its brief (p. 15), has not been shown.
The deduction from plaintiff's evidence is, that the real damage which it seeks to
avoid does not consist in defendant's taking tuba with him while traversing the
former's property, as there is no causal relation between the act and any resultant
damage, but in the fact that tuba is disposed of at the Hacienda "Sañgay" to which
plaintiff's laborers have access. What should, therefore, be enjoined, if it were
legally possible, is defendant's sale of tuba at the Hacienda "Sañgay," and not its
conveyance across plaintiff's estate. But if, as plaintiff concedes (brief, p. 16), the
former cannot be legally enjoined, least of all can the latter be restrained as long
as the public in genera; is free to go about the said property and it has not been
shown that the defendant, in passing through it, has occasioned damage thereto
or has committed any act infringing plaintiff's property rights or has refused to
pay the required road toll.
Defendant's sale of tuba at the Hacienda "Sañgay" is nothing more than the
exercise of a legitimate business, and no real damage to third persons can arise
from it as a natural and logical consequence. The bare possibility that plaintiff's
laborers, due to the contiguity of the Hacienda "Sañgay" to its property, might
come to defendant's store to imbibe tuba to drunkenness, does not warrant the
conclusion that the defendant, in thus running the business, impinges upon
plaintiff's property rights and should thereby be judicially enjoined. The damage
which plaintiff seeks to enjoin by this action does not consist, an has been
demonstrated, in defendant's maintaining a tuba store at the Hacienda "Sañgay,"
or in defendant's crossing its property while taking tuba to the Hacienda "Sañgay,"
but in its laborers finding their way to the said hacienda in order to buy tuba and
become drunk. In other words, the act sought to be restrained as injurious or
prejudicial to plaintiff's interests, is that committed, not by the defendant, but by
plaintiff's own laborers. Rightly and logically, the injunction should be directed
against said laborers to the end that they should abstain from going to the
Hacienda "Sañgay" in order to buy tuba and become drunk. As it would seem
unusual for the plaintiff to do this, it should at least exercise stricter vigilance and
impose rigorous discipline on its laborers by, for instance, punishing drunkenness
with expulsion. Plaintiff's remedy lies in its own hands and should not be looked
for in the courts at the sacrifice of other interests no less sacred and legitimate
than the plaintiff's.
Where one has a right to do a thing equity has no power to restrain him from
doing it. (Dammann vs. Hydraulic Clutch Co., 187 Pac., 1069.) Acts under the
authority of the law will not be enjoined (Bonaparte vs. Camden, etc. Railroad Co.,
3 Fed. Cas. No. 1617, Baldw., 205). Lawful exercises of rights incidentally injuring
others may not be enjoined by injunction. (14 R. C. L., 369.) "It is . . . an established
principle that one may not be enjoined from doing lawful acts to protect and
enforce his rights of property or of person, . . .." (14 R.C.L., pp. 365, 366.).
It is said that the plaintiff seeks to enjoin the defendant, not from selling tuba at
his store in the Hacienda "Sañgay," but from passing through its property to
introduce tuba to said hacienda (plaintiff's brief, p. 16). The legal rule, however,
is that what the law does not authorize to be done directly, cannot be done
indirectly. If the plaintiff cannot judicially enjoin the defendant from selling tuba
at the Hacienda "Sañgay," neither can it obtain said injunction to prevent him
from passing over its property to transport tuba to that place as long as the
defendant is ready to pay the transit fees required by the plaintiff and does not
sell the said goods inside the said property.
Suppose that the defendant, instead of being a tuba vendor, is a social
propagandist whose preachings, while not subversive of the established legal
order, are not acceptable to some capitalistic organizations, say the plaintiff.
Suppose that the defendant, armed with the corresponding official permit, should
desire to go to the Hacienda "Sañgay" through plaintiff's estate for the purpose
of explaining to the laborers the advantage of the latter organizing themselves
into unions, or joining existing ones, to better defend their interests. Plaintiff
learns in time of the plan and determines to frustrate it in the belief that it would
be prejudicial to its interests for the laborers to be "unionized," while it is for its
good that the laborers be contracted under the so-called "open shop" system.
Unable to stop the holding of the meeting because the same is not to take place
on its property, may the plaintiff secure an injunction from the courts to prevent
the defendant to pass through the said property in order to reach the place of the
meeting, by alleging that the defendant entertains theories of social reform which
might poison the minds of the laborers at the expense of the plaintiff's interests?
May the latter, under the same hypothesis, maintain that defendant's act in
passing through its property, which is open to public use, constitute trespass or
usurpation restrainable by injunction? If the answer to these questions is, as it
must be, in the negative, the present case is not susceptible of a different solution.
The only difference between the two cases is that in the one supposed the
3
dreaded damage to plaintiff's interests is of more moment and or more lasting
effect than that in the case at bar.
When a private road has been thrown open to public use, no action for trespass
is maintainable against any person who desires to make use thereof;
consequently, an injunction suit likewise does not lie.
"Private roads, except where laid out under constitutional provisions authorizing
the condemnation of private property for a private use, are public roads in the
sense that they are open to all who see fit to use them, and it is immaterial that
the road is subject to gates and bars, or that it is merely a cul de sac. Being this
considered as a public road, it necessarily follows that the owner of the land
through which the road is laid out cannot maintain an action of trespass against
any person using it; . . ." (50 C.J., pp. 397, 398.).
". . . Where it is clear that the complainant does not have the right that he claims,
he is not entitled to an injunction, either temporary or perpetual, to prevent a
violation of such supposed right. . . . An injunction will not issue to protect a right
not in esse and which may never arise or to restrain an act which does not give
rise to a cause of action, . . .." (32 C.J., pp. 34, 35.)
B. In its brief, plaintiff states:
"In transporting the tuba which he sells in his saloon in Hacienda 'Sañgay' the
defendant used to pass thru the private road of the plaintiff which connects its
sugar central with the provincial road. On this private road the plaintiff has put up
a gate under the charge of a keeper, and every time that the defendant passed
with a cargo of tuba the gatekeeper would stop him and remind him that tuba
was not permitted entry into the private properties of the company, but instead
of heeding this prohibition the defendant would simply deviate from the road and
continue on his way to hacienda 'Sañgay' by way of the fields of Hacienda
'Begoña,' which is also the private property of the plaintiff."
It is deductible from the above statement that, whenever the gatekeeper of the
plaintiff prevented the defendant from passing thru its so-called "private road,"
on his way from the provincial road to the Hacienda, "Sañgay," the defendant
deviated from said road and carried the tuba across the lands of the Hacienda
"Begoña" is the same one frequented by carabaos (s.t., 32, 36). Plaintiff intends
not only to prohibit the defendant from using the road in question, but also from
crossing the lands of the Hacienda "Begoña," also belonging to the plaintiff, where
carabaos are allowed to roam. An act so shocking to the conscience, one is
reminded, could only have been perpetrated during the feudal period when
human rights were unmercifully sacrificed to property rights. If an injunction
should lie in the instant case, it should be in favor of the defendant and against
the plaintiff, to enjoin the latter from obstructing the former to pass over the road
in question to convey tuba to the Hacienda "Sañgay." It is indeed strange that it is
the plaintiff and not the defendant that should have applied for the remedy.
" . . . An injunction will not be granted when good conscience does not require it,
where it will operate oppressively or contrary to justice, where it is not reasonable
and equitable under the circumstances of the case, or where it will tend to
promote, rather than to prevent, fraud and injustice. . . ." (32 C.J., p. 33.) ". . . a
court of equity may interfere by injunction to restrain a party from enforcing a
legal right against all equity and conscience. . . ." (14 R.C. L., pp. 365, 366, par. 66.)
". . . The comparative convenience or inconvenience of the parties from granting
or withholding the injunction sought should be considered, and none should be
granted if it would operate oppressively or inequitably, or contrary to the real
justice of the case. This doctrine is well established. . . ." (14 R.C.L., pp. 357, 358,
par. 60.)
"The power of the courts to issue injunctions should be exercised with great
caution and only where the reason and necessity therefor are clearly established;
and while this rule has been applied more frequently in the case of preliminary
and mandatory injunctions, it applies to injunctions of all classes, and to
restraining orders. . . ." (32 C.J., pp. 33, 34.)
"The writ of injunction will not be awarded in doubtful or new cases not coming
within well-established principles of equity." (Bonaparte vs. Camden, etc. Railroad
Co., 3 Fed. Cas. No. 1617; Hardesty vs. Taft, 87 Am. Dec., 584.)
C. Plaintiff's action is frivolous and baseless.
Plaintiff states in the sixth paragraph of its amended complaint:
"6. That, in addition, the plaintiff, in the exercise of its property rights, does not
want to allow the entry of the defendant in any part of its estate above mentioned
in order to avert any friction or ill-feeling against him."
The plaintiff, in petitioning the courts for an injunction to avert "friction or ill-
feeling" against the defendant, invoking its sacred property rights, attempts to
intrust to them a mission at once beyond those conferred upon them by the
Constitution and the laws, and unbecoming of their dignity and decorum.
D. Plaintiff has not established the existence, real or probable, of the alleged
damage against which the injunction is invoked.
As has been seen, the allegations of the amended complaint do not justify the
granting of an injunction. The said allegations only state, as the basis of plaintiff's
action, that the defendant insists in passing or "making incursions" on plaintiff's
property to take tuba to the Hacienda "Sañgay," and that the plaintiff wants to
avoid "friction and ill-feeling against him." Such allegations do not imply the
existence, or probable existence, of any real damage to plaintiff's rights which
should be enjoined, and do not, therefore, constitute a legal cause of action. On
the other hand, what the plaintiff attempted to establish by its evidence differs
from the allegations of its amended complaint. What said evidence really
discloses is not, that the plaintiff had forbidden the defendant to convey tuba to
the Hacienda "Sañgay" through plaintiff's estate, but to introduce tuba into the
central or to place tuba on its lands, or, according to Exhibit A, to trespass illegally
on plaintiff's estate. The testimony of the gatekeeper Santiago Plagata and the
accountant Ankerson is as follows:
"Q. Why did you detain him?
A. Because the Central forbids the bringing of tuba to the Central.
"Q. Why does the Central prohibit the entry of tuba?
A. The Central prohibits the entry of tuba there because the laborers, generally,
buy tuba, drink it and become drunk, and are unable to work, and sometimes they
fight because they are drunk." (S.t., p.5.).
"Q. Why did you kick them?
A. Because the North Negros Sugar Co. prohibits the placing of tuba on those
lands." (S.t., pp. 38, 39.)
Exhibit A, the alleged letter addressed by the plaintiff to the defendant, recites:
"Mr. SERAFIN HIDALGO, Driver of Auto, License No. 1085-1935.
"Present
"SIR: Effective this date, you are hereby forbidden to trespass upon any of the
Company's properties under penalties of law prescribed for trespass.
"NORTH NEGROS SUGAR CO., INC.
"By: (Sgd.) Y.E. GREENFIELD
"Manager"
It will be noted that according to this letter, the defendant was enjoined by the
plaintiff from passing thru its properties, whether he carried tuba or not.
Plaintiff's admission in its brief (p. 15) that it has not been established that the
defendant has brought tuba to the "mill site," or has sold it within its property, is
fatal to the present action charging the defendant with said acts.
E. The well-known principle of equity that "he who comes to equity must come
with clean hands" bars the granting of the remedy applied for by the plaintiff.
It has been already stated that the plaintiff, to obtain a preliminary injunction in
this case, alleged under oath in its original complaint facts which it knew to be
false, or, at least, unprobable, because it did not only eliminate them from the
amended complaint which it filed after the issuance of the preliminary injunction,
but it failed to substantiate them at the trial. We refer to the following allegations:
"that the defendant used to go to the 'mill site' of the plaintiff passing through
plaintiff's private roads and there cause trouble among the peaceful people of the
place," and "that notwithstanding the prohibition of the plaintiff, the defendant
insists in repeating his incursions into the said private roads and 'mill site' of the
plaintiff, disturbing public order and molesting plaintiff's employees and their
families.".
If said allegations were true, it is evident that plaintiff was entitled to a preliminary
injunction at the commencement of the trial, and to a permanent injunction after
the decision was rendered. But such is not the case, as the subsequent theory of
the plaintiff, announced in its amended complaint, is not that the defendant
"made incursions into the 'mill site' and private roads of the plaintiff, causing
trouble, disturbing public order, and molesting plaintiff's employees and their
families," but only that the defendant, to take tuba to the Hacienda "Sañgay,"
belonging to Luciano Aguirre, insisted in passing through plaintiff's estate. From
all this it follows that the plaintiff in order to obtain a preliminary injunction,
trifled with the good faith of the lower court by knowingly making untrue
allegations on matters important and essential to its cause of action.
Consequently, it did not come to court with clean hands.
"Coming into Equity with Clean Hands. — The maxim that he who comes into
equity must come with clean hands is, of course, applicable in suits to obtain relief
by injunction. Injunction will be denied even though complainant shows that he
has a right and would otherwise be entitled to the remedy in case it appears that
he himself acted dishonestly, fraudulently or illegally in respect to the matter in
which redress is sought, or where he has encouraged, invited or contributed to
the injury sought to be enjoined. However, the general principle that he who
comes into equity must come with clean hands applies only to plaintiff's conduct
in relation to the very matter in litigation. The want of equity that will bar a right
to equitable relief for coming into court with unclean hands must he so directly
connected with the matter in litigation that it has affected the equitable relations
of the parties arising out of the transaction in question." (32 C.J., pp. 67, 68.)
4
At this point, attention should be directed to other facts of the case indicative of
the censurable attitude which the plaintiff has taken in connection therewith. On
one occasion, the defendant drove his automobile along the road in question,
accompanied by Antonio Dequiña, headed for the Hacienda "Sañgay." As they had
tuba with them, on reaching the gate they were halted by the gatekeeper. The
defendant and his companion got off the car and unloaded the tuba in order to
follow the passageway across the lands of the Hacienda "Begoña," through which
plaintiff's carabaos passed, until they could reach "Sañgay." Thereupon, one
Ankerson, accountant and auditor of the plaintiff, arrived and no sooner had he
laid eyes on the tuba containers than he indignantly kicked them and uttered a
blasphemy to both, spilling the contents thereof. The defendant protested and
asked Ankerson to indemnify him for the value of the tuba which had been
wasted, to which Ankerson replied that he would make good what should be paid,
and he then and there wrote and handed over a note to the defendant for
presentation to plaintiff's cashier. The defendant presented the note, but this
claim was not paid, and instead he was prosecuted for trespass in the justice of
the peace court of Manapla under article 281 of the Revised Penal Code. So
absurd and malicious was the charge that the court, in acquitting the defendant,
entered the following order (Exhibit 3):
"A peaceful citizen who passed through a private road open to the public does not
commit the crime of trespass. Although the prohibition to the accused to be in a
private property should be manifest, if the latter is not fenced or uninhabited, the
mere fact that the accused is found on the place in question, for a lawful purpose,
does not constitute the crime of trespass defined and punished under article 281
of the Revised Penal Code."
The plaintiff did not stop at this; it filed the present action for injunction which, as
has been seen, is nothing more than the culmination of a series of affronts which
the plaintiff has perpetrated, privately and through the courts, against the
defendant.
F. The exercise of discretion by trial courts in matters injunctive should not be
interfered with by appellate courts except in cases of manifest abuse.
". . . The court which is to exercise the discretion is the trial court and not the
appellate court. The action of the court may be reviewed on appeal or error in
case of a clear abuse of discretion, but not otherwise, and ordinarily mandamus
will not lie to control such discretion." (32 C.J., sec. 11, p. 33.)
True, the rule has particular application to preliminary injunctions, but the rule
should not be otherwise with respect to permanent injunctions especially where,
as in this case, the trial court, after granting the preliminary injunction, set the
same aside in its final decision on a careful review of the evidence.
II
It is undisputed that the road in question was constructed by the plaintiff on its
own land, and that it connects the central or the "mill site" with the provincial
road. We have also the admission that the plaintiff made this road accessible to
the general public, regardless of class of group of persons or entities. Its use has
been extended to employees and laborers of the plaintiff; and so also to all those
who have a mind to pass through it, except that, in cases of motor vehicles, a
passage fee of P0.15 each should be paid. There is no contention here that the
defendant had refused to pay said tolls whenever he wanted to drive his car along
the road in question.
We, therefore, have the case of an easement of way voluntarily constituted in
favor of a community. Civil Code, article 531 and 594 read:
"ART. 531. Easement may also be established for the benefit of one or more
persons or a community to whom the encumbered estate does not belong."
xxx xxx xxx
"ART. 594. The owner of an estate may burden it with such easements as he may
deem fit, and in such manner and form as he may consider desirable, provided he
does not violate the law or public order."
There is nothing in the constitution of this easement in violation of law or public
order, except perhaps that the right to open roads and charge passage fees
therefor is the State's by right of sovereignty and may not be taken over by a
private individual without the requisite permit. This, however, would effect the
right of the plaintiff to charge tools, but not that of the defendant or of any other
person to make use of the easement.
As may be seen from the language of article 594, in cases of voluntary easements,
the owner is given ample liberty to establish them: "as he may deem fit, and in
such manner and form as he may consider desirable." The plaintiff "considered it
desirable" to open this road to the public in general, without imposing any
condition save the payment of a fifteen-centavo toll by motor vehicles, and it may
not now go back on this and deny the existence of an easement. Voluntary
easements under article 594 are not contractual in nature; they constitute the act
of the owner. If he exacts any condition, like the payment of a certain indemnity
for the use of the easement, any person who is willing to pay it may make use of
the easement. If the contention be made that a contract is necessary, it may be
stated that a contract exists from the time all those who desire to make use of the
easement are disposed to pay the required indemnity.
The plaintiff contends that the easement of way is intermittent in nature and can
only be acquired by virtue of a title under article 539. The defendant, however,
does not lay claim to it by prescription. The title in this case consists in the fact
that the plaintiff has offered the use of this road to the general public upon
payment of a certain sum as passage fee in the case of motor vehicles.
The cases of Roman Catholic Archbishop of Manila vs. Roxas (22 Phil., 450), and
Cuaycong vs. Benedicto (37 Phil., 781), are not controlling, as there the attempt
was to establish that the right to an easement of way had been acquired by
prescription. Here defendant's contention is, that while the road in question
remains open to the public, he has a right to its use upon paying the passage fees
required by the plaintiff. Indeed the latter may close it at its pleasure, as no period
has been fixed when the easement was voluntarily constituted, but while the road
is thrown open, the plaintiff may not capriciously exclude the defendant from its
use.
Furthermore, plaintiff's evidence disclosed the existence of a forcible right of way
in favor of the owner and occupants of the Hacienda "Sañgay" under the Civil
Code, article 564, because, according to said evidence, those living in the
Hacienda "Sañgay" have no access to the provincial road except thru the road in
question. Santiago Plagata, principal witness of the plaintiff, testified thus:
"Emerging from the provincial road, the defendant has necessarily to pass
through this private road where the gate of which I am the keeper is situated, and
them he gets to the Central." (S.t., p.5.)
"Q. To go to the Hacienda 'Sañgay,' is there any need to cross the 'mill site' of the
Central?
A. Yes, sir.
"Q. And the property of the Central is passed in going to the Hacienda 'Sañgay'?
A. Yes, sir.
"Q. Is there any other road"
A. I am not sure whether there is another road.
"Q. For how long have you been a watchman there?
A. Nine years to date.
"Q. And during that period of nine years, can you not state if there is any road
which gives access to the Hacienda 'Sañgay'? Or the Central has necessarily to be
passed?
A. I cannot say because I do not go to those places."
"COURT:
"Q. But all the others, except the defendant, who go to the Hacienda 'Sañgay'
necessarily pass thru the Central?
A. They pass thru that road of the Central." (S.t., pp. 16, 17.)
The evidence for the defendant confirms this:
"Q. To go there, thru what road did you have to pass?
A. Thru the road of the Central.
"Q. And by this road of the Central you mean the Central 'North Negros Sugar Co.,
Inc.'?
A. Yes, sir.
"Q. By this road of the Central which you mentioned, you mean the road where
there is a gate, beginning from the Central until the provincial road, where the
gate is for the purpose of preventing passage?
A. Yes, sir, the very one.
"Q. And because of that gate, the Central collects certain toll?
A. Yes, sir." (S.t., pp. 20, 21.)
III
Having been devoted by the plaintiff to the use of the public in general, upon
paying the passage fees required in the case of motor vehicles, the road in
question is charged with a public interest, and while so devoted, the plaintiff may
not establish discriminatory exceptions against any private person.
"When private property is affected with a public interest, it ceases to be juris
privati only; as if a man set out a street in new building on his own land, it is now
no longer bare private interest, but is affected by a public interest." (Lord Chief
Justice Hale in his treatise "De Portibus Maris," quoted with approval in Munn vs.
Illinois, 94 U.S., 113 [1876], and in Nebbia vs. New York, 291 U.S., 502 [1934].)
The above language was used in the seventeenth century, when exceptions to the
individualistic regime of ownership were scarcely recognized, and when the ideas
on its social function may be said to be in their infancy.
"Property does become clothed with a public interest when used in a manner to
make it of public consequence, and affect the community at large. When,
therefore, one devotes his property to a use in which the public has an interest,
he, in effect, grants to the public an interest in that use, and must submit to the
controlled by the public for the common good, to the extent of the interest he has
thus created. He may withdraw his grant by discontinuing the use; but, so long as
5
he maintains the use, he must submit to the control." (Munn vs. Illinois, 94 U.S.,
113; 24 Law. ed., 77.)
"Under our form of government the use of property and the making of contracts
are normally matters of private and not of public concern. The general rule is that
both shall be free of governmental interference. But neither property rights nor
contract rights are absolute; for government cannot exist if the citizen may at will
use his property to the detriment of his fellows, or exercise his freedom of
contract to work them harm. Equally fundamental with the private right is that of
the public to regulate it in the common interest. . . . The court has repeatedly
sustained curtailment of enjoyment of private property, in the public interest. The
owner's rights may be subordinated to the needs of other private owners whose
pursuits are vital to the paramount interests of the community." (Nebbia vs. New
York, 291 U.S., 502, 521, 525; 78 Law. ed., 940, 948.)
"Whenever any business or enterprise becomes so closely and intimately related
to the public, or to any substantial part of a community, as to make the welfare
of the public, or a substantial part thereof, dependent upon the proper conduct
of such business, it becomes the subject for the exercise of the regulatory power
of the state." (Clarksburg Light & Heat Co. vs. Public Service Commission, P. U.R.
1920A, 639; 84 W. Va., 638; 100 S.E., 551.)
". . . If the service is dedicated to the public or some portion thereof, or to persons
within a given area, then any member of the public or of the given area, then any
member of the public or of the given class, or any person within the given area,
may demand such service without discrimination, and the public, or so much of it
as has occasion to be served, is entitled to the service of the utility as a matter of
right, and not of grace. . . . A corporation becomes a public service corporation,
and therefore subject to regulation as a public utility, only when and to the extent
that the business of such corporation becomes devoted to a public use. . . ."
(Stoehr vs. Natatorium Co., 200 Pac. [Idaho], 132, quoted in 18 A.L.R., 766.)
"Tested by the rule laid down in Munn vs. Illinois, it may be conceded that the
state has the power to make reasonable regulation of the charges for services
rendered by the stock-yards company. Its stock yards are situated in one of the
gateways of commerce, and so located that they furnish important facilities to all
seeking transportation of cattle. While not a common carrier, nor engaged in any
distinctively public employment, it is doing a work in which the public has an
interest, and therefore must be considered as subject to governmental
regulation." (Cotting vs. Godard, 183 U.S., 79; 46 Law. ed., 92.)
"Businesses which, though not public at their inception, may be fairly said to have
risen to be such, and have become subject in consequence to some government
regulation. They have come to hold such a peculiar relation to the public that this
is superimposed upon them. In the language of the cases, the owner, by devoting
his business to the public use, in effect, grants the public an interest in that use,
and subjects himself to public regulation to the extent of that interest, although
the property continues to belong to its private owner, and to be entitled to
protection accordingly. (Munn vs. Illinois, supra; Spring Valley Waterworks vs.
Schottler, 110 U.S., 347; 28 L. ed., 173; 4 Sup. Ct. Rep., 48; People vs. Budd, 117
N.Y., 1, 27; 5 L. R.A., 559; 15 Am. St. Rep., 460; 22 N.E., 670; s.c. 143 U.S., 517; 36
L.ed., 247; 4 Inters. Com. Rep., 45; 12 Sup. Ct. Rep., 468; Brass vs. North Dakota,
153 U.S., 391; 38 L. ed., 757; 4 Inters. Com. Rep., 670; 14 Sup. Ct. Rep., 857; Noble
State Bank vs. Haskell, 219 U.S., 104; 55 L. ed., 112; 32 L.R.A. [N.S.], 1062; 31 Sup.
Ct. Rep., 186; Ann. Cas., 1912A, 487; German Alliance Ins. Co. vs. Lewis, 233 U.S.,
389; 58 L. ed., 1011; L.R.A. 1915C, 1189; 34 Sup. Ct. Rep., 612; VanDyke vs. Geary,
244 U.S., 39, 47; 61 L. ed., 973, 981; 37 Sup. Ct. Rep., 483; Block vs. Hirsh, 256 U.S.,
135; 65 L. ed., 865; 16 A.L.R., 165; 41 Sup. Ct. Rep., 458.)" Wolff Packing Co. vs.
Court of Industrial Relations, 262 U.S., 522; 27 A.L.R., 1280, 1286.)
Under the facts of the instant case, the road in question is of the nature of the so-
called "turnpike road" or "toll-road." The following authorities are, therefore, in
point:
"'Toll' is the price of the privilege to travel over that particular highway, and it is a
quid pro quo. It rests on the principle that he who receives the toll does or has
done something as an equivalent to him who pays it. Every traveler has the right
to use the turnpike as any other highway, but he must pay the toll." (City of St.
Louis vs. Creen, 7 Mo. App., 468, 476.)
"A toll road is a public highway, differing from ordinary public highways chiefly in
this: that the cost of its construction in the first instance is borne by individuals,
or by a corporation, having authority from the state to built it, and, further, in the
right of the public to use the road after its completion, subject only to the
payment of toll." (Virginia Cañon Toll Road Co. vs. People, 45 Pac., 396, 399; 22
Colo., 429; 37 L.R.A., 711.)
"Toll roads are in a limited sense public roads, and are highways for travel, but we
do not regard them as public roads in a just sense, since there is in them a private
proprietary right. . . . The private right which turnpike companies possess in their
roads deprives these ways in many essential particulars of the character of public
roads. It seems to us that, strictly speaking, toll roads owned by private
corporation, constructed and maintained for the purpose of private gain, are not
public roads, although the people have a right to freely travel them upon the
payment of the toll prescribed by law. They are, of course, public, in a limited
sense, but not in such a sense as are the public ways under full control of the state,
for public ways, in the strict sense, are completely under legislative control.
(Elliott, Roads & S., p. 5.)" (Board of Shelby County Com'rs vs. Castetter, 33 N.E.,
986, 987; 7 Ind. App., 309.)
It has been suggested during the consideration of the case at bar that the only
transportation companies with motor vehicles who can have an interest in passing
over the said road are those which carry laborers of the central and passengers
who transact business with the plaintiff, and not all public service motor vehicles
with certificates of public convenience, and that the only persons who may have
an interest in passing over the said road are the laborers of the plaintiff and
persons who do business with it and the occupants of the 21 houses situated in
the Hacienda "Sañgay," and not everyone for personal convenience. But even if
this were true, the plaintiff having subjected the road in question to public use,
conditioned only upon the payment of a fifteen-centavo passage fees by motor
vehicles, such circumstance would not affect the case at all, because what stamps
a public character on a private property, like the road in question, is not the
number of persons who may have an interest in its use, but the fact that all those
who may desire to use it may do so upon payment of the required indemnity.
". . . The public or private character of the enterprise does not depend, however,
upon the number of persons by whom it is used, but upon whether or not it is
open to the use and service of all members of the public who may require it, to
the extent of its capacity; and the fact that only a limited number of persons may
have occasion to use it does not make of it a private undertaking if the public
generally has a right to such use. . . ." (51 C.J., sec. 2, p. 5.).
"The test is, not simply how many do actually use them, but how many may have
a free and unrestricted right in common to use them. If it is free and common to
all citizens, then no matter whether it is or is not of great length, or whether it
leads to or from a city, village or hamlet, or whether it is much or little used, it is
a 'public road.'" (Heninger vs. Peery, 47 S. E., 1013, 1014; 102 Va., 896, quoting
Elliott, Roads & S., secs. 11, 192.)
The circumstance that the road in question does not properly fall within the
definition of a public utility provided in Act No. 3108, does not divest it of this
character:
". . . Whether or not a given business, industry, or service is a public utility does
not depend upon legislative definition, but upon the nature of the business or
service rendered, and an attempt to declare a company or enterprise to be a
public utility, where it is inherently not such, is, by virtue of the guaranties of the
federal constitution, void wherever it interferes with private rights of property or
contract. So a legislature cannot by mere fiat or regulatory order convert a private
business or enterprise into a public utility, and the question utility is a judicial one,
and must be determined as such by a court of competent jurisdiction;. . .." (51
C.J., sec. 3, p. 5.)
The road in question being a public utility, or, to be more exact, a private property
affected with a public interest, it is not lawful to make arbitrary exceptions with
respect to its use and enjoyment.
"Duty to Serve Without Discrimination. — A public utility is obligated by the
nature of its business to furnish its service or commodity to the general public, or
that part of the public which it has undertaken to serve, without arbitrary
discrimination, and it must, to the extent of its capacity, serve all who apply, on
equal terms and without distinction, so far as they are in the same class and
similarly situated. Accordingly, a utility must act toward all member of the public
impartially, and treat all alike; and it cannot arbitrarily select the persons for
whom it will perform its service or furnish its commodity, nor refuse to one a favor
or privilege it has extended to another, since the term 'public utility' precludes the
idea of service which is private in its nature and is not to be obtained by the public.
Such duties arise from the public nature of a utility, and statutes providing
affirmatively therefor are merely declaratory of the common law." (51 C.J., sec.
16, p. 7.)
The circumstance that the plaintiff is not the holder of a franchise or of a
certificate of public convenience, or that it is a company devoted principally to
the manufacture of sugar and not to the business of public service, or that the
state has not as yet assumed control or jurisdiction over the operation of the road
in question by the plaintiff, does not preclude the idea that the said road is a public
utility.
"The touchstone of public interest in any business, its practices and charges,
clearly is not the enjoyment of any franchise from the state. (Munn vs. Illinois [94
U.S., 113; 24 L. ed., 77, supra].)" (Nebbia vs. New York, supra.)
6
"The fact that a corporation may not have been given power to engage in the
business of a public utility is not conclusive that it is not in fact acting as a public
utility and to be treated as such." (51 C.J., p. 5.)
"The question whether or not it is such does not necessarily depend upon
whether it has submitted or refused to submit to the regulatory jurisdiction of the
state, nor upon whether or not the state has as yet assumed control and
jurisdiction, or has failed or refused so to do." (51 C.J., p. 6.)
"The fact that a corporation does other business in addition to rendering a public
service does not prevent it from being a public utility, and subject to regulation as
such, as to its public business." (51 C.J., p. 6.)
"The term 'public utility' sometimes is used to mean the physical property or plant
being used in the service of the public." (51 C.J., p. 6.)
"There are . . . decisions in which the incidental service has been held to be of
such a nature that it was subject to public regulation and control. (Re
Commonwealth Min. & Mill. Co. [1915; Ariz.], P.U.R., 1915B, 536; Nevada, C. & O.
Teleg. & Teleph. Co. vs. Red River Lumber Co. [1920; Cal.], P.U.R., 1920E, 625;
Sandpoint Water & Light Co. vs. Humberd Lumber Co. [1918; Idaho], P.U.R.,
1918B, 535; Public Service Commission vs. Valley Mercantile Co. [1921;
Mont.],P.U.R., 1921D, 803; Public Service Commission vs. J.J. Rogers Co. [1918],
184 App. Div., 705; P.U.R., 1919A, 876; 172 N.Y. Supp., 498; Wingrove vs. Public
Service Commission [1914], 74 W. Va., 190; L.R.A., 1918A, 210; 81 S.E., 734;
Chambers vs. Spruce Lighting Co. [1918], 81 W. Va., 714; 95 S. E. 192. See also
Hoff vs. Montgomery [1916; Cal.], P.U.R., 1916D, 880; Re Producers Warehouse
[1919; Cal.], P.U.R., 1920A, 919; Ticer vs. Philips [1920; Cal.], P.U.R., 1920E, 582;
Re Ontario Invest. Co. [1921; Cal.], P.U.R., 1922A, 181; Bassett vs. Francestown
Water Co. [1916; N.H.], P.U.R., 1916B, 815, Re Northern New York Power Co.
[1915; N. Y., 2d Dist.], P.U.R., 1915B, 70.)" (Annotation in 18 A.L.R., 766, 767.)
The point is made that, there being no contract between the plaintiff and the
public interested in the use of the road in question, it should be understood that
such use has been by the mere tolerance of the plaintiff, and that said property
has not been constituted into a public utility. The contention is devoid of merit.
"When private property is devoted to public use in the business of a public utility,
certain reciprocal rights and duties are raised by implication of law between the
utility and the public it undertakes to serve, and no contract between them is
necessary to give rise thereto. . . ." (51 C.J., sec. 12, p. 6.).
Wherefore the judgment appealed from is affirmed, with costs to the plaintiff.
Abad Santos, J., concurs.
EN BANC
[G.R. No. L-10619. February 28, 1958.]
LEOGARIO RONQUILLO, ET AL., plaintiffs-appellants, vs. JOSE ROCO, as
Administrator of VICENTE ROCO Y DOMINGUEZ, ET AL., defendants-appellees.
Moises B. Cruz for appellants.
Vicente Roco, Jr. for appellees.
SYLLABUS
1. EASEMENTS; CLASSIFIED AND HOW THEY ARE ACQUIRED. — Under the Old as
well as the New Civil Code, easements may be continuous or discontinuous
(intermittent), apparent or non-apparent, discontinuous being those used at
more or less long intervals and which depend upon acts of man (Articles 532 and
615 of the Old and New Civil Codes, respectively). Continuous and apparent
easements are acquired either by title or prescription, continuous non-apparent
easements and discontinuous ones whether apparent or not, may be acquired
only by virtue of a title. Articles 537 and 539, and 620 and 622 of the Old and New
Civil Codes respectively.)
2. ID.; EASEMENT OF RIGHT OF WAY MAY NOT BE ACQUIRED THROUGH
PRESCRIPTION. — Under the provisions of Articles 537 and 539, and 620 and 622
of the Old and New Civil Codes, respectively, the easement of right of way may
not be acquired through prescription.
DECISION
MONTEMAYOR, J p:
Involving as it does only a question of law, the present appeal from the order of
the Court of First Instance of Camarines Sur, dated March 6, 1955, dismissing the
amended and supplemental complaint of plaintiffs on motion of defendants that
it did not state a cause of action, was taken directly to this Court.
The facts and the issue involved in the appeal are well and correctly stated in the
appealed order, the pertinent portion of which we are reproducing and making
our own:
"The amended and supplemental complaint alleges that the plaintiffs have been
in the continuous and uninterrupted use of a road or passage way which traversed
the land of the defendants and their predecessors in interest, in going to Igualdad
Street and the market place of Naga City, from their residential land and back, for
more than 20 years; that the defendants and the tenants of Vicente Roco, the
predecessors in interest of the said defendants have long recognized and
respected the private legal easement of road right of way of said plaintiffs; that
on May 12, 1953, the defendants Jose Roco thru his co-defendants, Raymundo
Martinez and their men with malice aforethought and with a view to obstructing
the plaintiffs' private legal easement over the property of the late Vicente Roco,
started constructing a chapel in the middle of the said right of way construction
actually impeded, obstructed and disturbed the continuous exercise of the rights
of the plaintiffs over said right of way; that on July 10, 1954 the new defendants
Natividad Roco and Gregorio Miras, Jr. with the approval of the defendant, Jose
Roco and with the help of their men and laborers, by means of force, intimidation,
and threats, illegally and violently planted wooden posts, fenced with barbed wire
and closed hermitically the road passage way and their right of way in question
against their protests and opposition, thereby preventing them from going to or
coming from their homes to Igualdad Street and the public market of the City of
Naga.
"It is very clear from the allegations of the plaintiffs in their amended and
supplemental complaint, that they claim to have acquired the easement of right
of way over the land of the defendants and the latter's predecessors in interest,
Vicente Roco, thru prescription by their continuous and uninterrupted use of a
narrow strip of land of the defendants as passage way or road in going to Igualdad
Street and the public market of Naga City, from their residential land or houses,
and return.
"The only question therefore to be determined in this case, is whether an
easement of right of way can be acquired thru prescription."
The dismissal was based on the ground that an easement of right of way though
it may be apparent is, nevertheless, discontinuous or intermittent and, therefore,
cannot be acquired through prescription, but only by virtue of a title. Under the
Old as well as the New Civil Code, easements may be Continuous or discontinuous
(intermittent), apparent or non-apparent, discontinuous being those used at
more or less long intervals and which depend upon acts of man (Articles 532 and
615 of the Old and New Civil Codes, respectively). Continuous and apparent
easements are acquired either by title or prescription, continuous non-apparent
easements and discontinuous ones whether apparent or not, may be acquired
only by virtue of a title (Articles 537 and 539, and 620 and 622 of the Old and New
Civil Codes, respectively).
Both Manresa and Sanchez Roman are of the opinion that the easement of right
of way is a discontinuous one:
"En cambio, las servidumbres discontinuos se ejercitan por un hecho del hombre,
y precisamente por eso son y tienen que ser discontinuas, porque es imposible
fisicamente que su uso sea incesante. Asi, la servidumbre de paso es discontinua,
porque no es posible que el hombre esté pasando continuamente por el camino,
vereda o senda de que se trate." (4 Manresa, Codigo Civil Español, 5th ed., p. 529).
. . . "5° Por razon de los modos de disfrutar las servidumbres, en continuas y
discontinuas (1). Las continuas son aquellas cuyo uso es o puede ser incesante,
sin la intervencion de ningun hecno del hombre, como son las de luces y otras de
la misma especie; y las discontinuas, las que se usan á intervalos, más o menos
largos, y dependen de actos del hombre, como las de senda, carrera y otras de
esta clase." (3 Sanches Roman, Derecho Civil, p. 488).
Under the provisions of the Civil Code, old and new, particularly the articles
thereof aforecited, it would therefore appear that the easement of right of way
may not be acquired through prescription. Even Article 1959 of the Old Civil Code
providing for prescription of ownership and other real rights in real property,
excludes therefrom the exception established by Article 539, referring to
discontinuous easements, such as, easement of right of way. (Bargayo vs.
Camumot, 40 Phil., 857, 867).
In the case of Cuayong vs. Benedicto, 37 Phil., 781 where the point in issue was
whether or not vested rights in a right of way can be acquired through user from
time immemorial, this Court said:
"It is evident, therefore, that no vested right by user from time immemorial had
been acquired by plaintiffs at the time the Civil Code took effect. Under that Code
(Article 539) no discontinuous easement could be acquired by prescription in any
event."
However, in the case of Municipality of Dumangas vs. Bishop of Jaro, 34 Phil., 545,
this same Tribunal held that the continued use by the public of a path over land
adjoining the Catholic church in going to and from said church through its side
7
door, has given the church the right to such use by prescription, and that because
of said use by the public, an easement of right of way over said land has been
acquired by prescription, not only by the church, but also by the public, which
without objection or protest on the part of the owner of said land, had continually
availed itself of the easement.
The minority of which the writer of this opinion is a part, believes that the
easement of right of way may now be acquired through prescription, at least since
the introduction into this jurisdiction of the special law on prescription through
the Old Code of Civil Procedure, Act No. 190. Said law, particularly, Section 41
thereof, makes no distinction as to the real rights which are subject to
prescription, and there would appear to be no valid reason, at least to the writer
of this opinion, why the continued use of a path or a road or right of way by the
party, specially by the public, for ten years or more, not by mere tolerance of the
owner of the land, but through adverse use of it, Cannot give said party a vested
right to such right of way through prescription.
"The uninterrupted and continuous enjoyment of a right of way necessary to
constitute adverse possession does not require the use thereof every day for the
statutory period, but simply the exercise of the right more or less frequently
according to the nature of the use. (17 Am. Jur. 972)"
Even under the case of Cuaycong vs. Benedicto (supra), this Tribunal insinuated
that the rule that no discontinuous easement, like an easement of right of way,
may, under Article 539 of the Old Civil Code, be acquired, might possibly have
been changed by the provisions of the Code of Civil Procedure relative to
prescription.
. . . "Assuming, without deciding, that this rule has been changed by the provisions
of the present Code of Civil Procedure relating to prescription, and that since its
enactment discontinuous easement may be acquired by prescription, it is clear
that this would not avail plaintiffs. The Code of Civil Procedure went into effect
on October 1, 1901. The term of prescription for the acquisition of rights in real
estate is fixed by the Code (section 41) at ten years. The evidence shows that in
February, 1911 before the expiration of the term of ten years since the time the
Code of Civil Procedure took effect, the defendants interrupted the use of the
road by plaintiffs by constructing and maintaining a toll gate on it and collecting
toll from persons making use of it with carts and continued to do so until they
were enjoined by the granting of the preliminary injunction by the trial court in
December 1912." . . . (Cuayong vs. Benedicto, 37 Phil., 781,796).
Professor Tolentino in his Commentaries and Jurisprudence on the Civil Code, Vol.
I, p. 340, would appear to be of the opinion that under the provisions of the Code
of Civil Procedure relative to prescription, even discontinuous easements, like the
easement of right of way, may be acquired through prescription:
. . . "It is submitted that under Act No. 190, even discontinuous servitudes can be
acquired by prescription, provided it can be shown that the servitude was 'actual,
open, public, continuous, under a claim of title exclusive of any other right and
adverse to all other claimants'." However, the opinion of the majority must
prevail, and it is held that under the present law, particularly, the provisions of
the Civil Code, old and new, unless and until the same is changed or clarified, the
easement of right of way may not be acquired through prescription.
In view of the foregoing, the order appealed from is hereby affirmed. No costs.
Bengzon, Bautista Angelo, Labrador, Concepcion, Endencia and Félix, JJ., concur.
Padilla, J., concurs in the result.
FIRST DIVISION
[G.R. No. 160080. June 19, 2009.]
NATIONAL POWER CORPORATION, petitioner, vs. CARLOS VILLAMOR,
respondent.
DECISION
CARPIO, J p:
The Case
Before the Court is a petition for review 1 assailing the Decision 2 dated 19 August
2002 and Resolution 3 dated 28 August 2003 of the Court of Appeals in CA-G.R.
CV No. 61749.
The Facts
Petitioner National Power Corporation (NPC) is a government-owned and
controlled corporation created and existing by virtue of Republic Act No. 6395 (RA
6395), 4 as amended by Presidential Decree No. 938. 5 The main objective of NPC
is the development of hydro-electric generation power and the production of
power from any other source. Its charter grants to NPC the power, among others,
to exercise the right of eminent domain. 6
Due to its Leyte-Cebu Interconnection Project, NPC's 230 KV Talisay-Compostela
transmission lines and towers have to pass parcels of land in the City of Danao
and Municipality of Carmen, both situated in the province of Cebu. Two of these
lands situated in Cantipay, Carmen, Cebu are owned by respondent Carlos
Villamor (Villamor). On these lands stand fruit-bearing trees, such as mango,
coconut, avocado, soursop or guyabano, jackfruit, tamarind, breadfruit, sugar
apple or atis, Spanish plum or siniguelas and banana; and non-fruit bearing trees,
such as mahogany and gemilina. ICacDE
On 22 July 1996, NPC filed with the Regional Trial Court, Branch 25, Danao City,
Cebu (trial court), a complaint for eminent domain of Villamor's lands, docketed
as Civil Case No. DNA-389. The lands were identified as Lot 3, 6191 Cad. 1046-D
with a total area of 5,590.76 square meters and covered by Transfer Certificate of
Title (TCT) No. 11970 and Lot 4, 6191 Cad. 1046-D with a total area of 3,134.53
square meters and covered by TCT No. 15-12045. 7
NPC deposited with the Philippine National Bank, Fuenta Osmeña branch,
P23,115.70, representing the assessed value on the tax declaration of the lands.
The trial court, in its Order dated 14 July 1997, 8 ordered the issuance of the
corresponding writ of possession in favor of NPC.
In the course of the proceedings, several parties intervened, namely Teodolo
Villamor, Teofilo Villamor and Nunila Abellar. They were allegedly the siblings of
respondent Villamor and the heirs of the late spouses Jose and Dolores Villamor.
The intervenors claimed that NPC violated their legal rights in negotiating only
with Villamor, who is just one of seven heirs. Villamor was allegedly not
authorized by the other legal heirs to negotiate and receive payment for the land
sought to be expropriated.
The only issue between NPC and Villamor involves the reasonableness and
adequacy of the just compensation of the properties.
The trial court created a board of three commissioners to determine the just
compensation for the lands and improvements. As approved by the trial court,
the following formed the board of commissioners: Sebastian C. Ocon, the Right-
of-Way Supervisor of NPC; Nicolas Capoy, a collection agent of the Bureau of
Internal Revenue; and Fortunato C. Ligutom (Ligutom), the Municipal Assessor of
Carmen, Cebu. Ligutom was appointed as Chairman.
In the Joint Commissioners' Report 9 submitted to the trial court, the board of
commissioners recommended the amount of P433 per square meter as the fair
market value of Villamor's lands. The board based the formulation on the
following: (1) the inspection report made by representatives of the court, (2) list
of documentary exhibits, (3) opinion values of the different agencies submitted
to the Provincial Appraisal Committee, (4) certification from the different
government agencies, and (5) the owner's proposal. The amount of P290 per
square meter was the average value submitted by the (1) Regional Investors, Inc.,
(2) Fil-Asia Agent, (3) International Exchange Bank, (4) Rural Bank of Carmen, (5)
Municipal Assessor of Carmen, and (6) the owner's proposal. Also, the proposed
fair market value of P350 per square meter was taken into consideration since the
affected lands were identified as part of the industrial zone per Regional
Development Council Resolution No. 38, series of 1993 10 dated 17 September
1993. Likewise included in the report were the respective values of the fruit
bearing and non-fruit bearing trees planted on Lots 3 and 4. EDSAac
On 24 November 1997, Villamor filed his Comment to the Commissioners' Report.
11 Villamor exhibited a similar expropriation case, Civil Case No. DNA-426, filed
by NPC against Francisco Villamor, involving a lot, designated as Lot 2 of 6191,
Cad. 1046-D, adjoining the lands of Villamor. In said case, the trial court rendered
a decision fixing the just compensation at P600 per square meter. However, upon
motion of NPC, the amount was reduced to P450. 12 Villamor prayed that the trial
court consider the same amount of just compensation as that awarded to the
landowner adjacent to his lands. Further, Villamor stated that a small portion of
Lot 4 consisting of an area of 15.23 square meters had been separated from the
remaining unaffected portion of the total area and would not be used by Villamor
for any productive purposes. Thus, Villamor prayed that such small portion be
included as part of the total area that should be compensated by NPC.
On 22 December 1997, the trial court rendered a decision in favor of Villamor. 13
The dispositive portion states:
8
WHEREFORE, facts and law considered, the Court hereby renders judgment
condemning property subject of expropriation in favor of plaintiff; declaring in
favor of the defendants for plaintiff to pay the fair market value of the portions of
the lots condemned by this expropriation proceedings at P450.00 per square
meter and to pay to defendant Carlos Villamor, the following amounts:
1. P2,515,842.00 for the 5,590.76 sq. mts. as the total affected area of Lot 3 of
6191, Cad. 1046-D;
2. P1,410,538.50 for the 3,134.53 sq. mts. as the total affected area of Lot 4 of
6191, Cad. 1046-D;
or the total amount of Three Million Nine Hundred Twenty-Six Thousand Three
Hundred Eighty Pesos and 50/100 (P3,926,380.50);
Declaring that the fair market value of all the improvements inside the affected
lots to be in the amounts recommended in the Commissioners' Unit Base Market
Value of the Land and Improvements Owned by Carlos Villamor attached to the
Commissioners' Report and ordering the Plaintiff National Power Corporation to
pay to the defendant Carlos Villamor the following amounts:
1. P648,932.00 for the total fair market value of the improvements in Lot 3, of
6191, Cad. 1046-D;
2. P372,968.00 for the total fair market value of the improvements in Lot 4, of
6191, Cad. 1046-D.
or the total amount of One Million Twenty One Thousand Nine Hundred Pesos
(P1,021,900.00). HaAISC
Ordering the amount of One Million Seven Hundred Eighty Three Thousand Five
Hundred Six Pesos and 50/100 (P1,783,506.50) representing just compensation of
Lot 4 and improvements described in the Amended Complaint, to be divided
among the Hrs. of Jose and Dolores Villamor, or to be awarded solely to defendant
Carlos Villamor, whichever is favored by the decision of the case pending litigation
and under appeal with the Court of Appeals.
SO ORDERED.
Villamor filed a Motion for Reconsideration praying that the trial court's decision
be reviewed by ordering NPC to likewise pay for the small isolated portion of Lot
4, consisting of 15.23 square meters. 14
On 22 January 1998, the trial court, acting on Villamor's motion, rendered a
Resolution amending its earlier decision. 15 The dispositive portion of the
resolution states:
WHEREFORE, Motion for Reconsideration is given due course.
Let therefore the dispositive portion of the Decision in the last paragraph be
amended by adding the following:
Ordering the plaintiff to pay the sum of P6,853.50 to defendant Carlos Villamor,
same amount to be included in the deposit for valid claimants as proceeds of Lot
4, described in the complaint.
SO ORDERED. 16
NPC filed an appeal with the Court of Appeals, docketed as CA-G.R. CV No. 61749.
The Ruling of the Court of Appeals
On 19 August 2002, the Court of Appeals dismissed the petition and affirmed the
decision of the trial court. 17 The relevant portions of the decision state:
A perusal of the decision rendered by the trial court will show that before the trial
court arrived at the amount of P450.00 per square meter as just compensation
for the expropriated property, the court a quo considered the following factors:
"The Committee on Appraisal through its Chairman, Mr. Fortunato Ligutom,
submitted the Commissioner's Report. HAaScT
Based on the opinion values of the different agencies, namely, Regional Investors,
Inc., Fil Asia Agent, International Exchange Bank, Rural Bank of Carmen, Municipal
Assessor of Carmen and Owner's Proposal, the Committee in computing the
average value per square meter appraised P290.00 per square meter. Pursuant
however to RDC Res. No. 38, s. 1993, the area under expropriation is covered by
the industrial zone to which the proposed market value of the land per square
meter is P350.00 more or less.
Opinion values submitted by the different agencies, namely, the Municipal
Agriculturist Officer of Sogod, Cebu of Carmen, Cebu, Mandaue City, and the new
schedule of market values from Provincial Assessor of Cebu, for mango trees and
coconut trees, the Committee reached by average computation per tree at
P22,756.00 for mango tree and P2,310 per coconut tree. The land on which the
improvements grow is classified as first class, it being a fertile land and trees
growing thereon produce plenty of fruits.
xxx xxx xxx
The Commissioner's Report did not consider the fact that in expropriating that
portion of Lot 4 of 6191, Cad. 1046-D, a small dangling portion of the said lot
consisting of 15.23 square meters is left out and separated from the remaining
portion of said Lot 4. Considering that the 15.23 square meters cannot anymore
be used by defendant Carlos Villamor for any productive purposes and the same
will cease to have commercial value to the defendant Carlos Villamor, said
dangling area should also be paid by plaintiff NPC.
Moreover, appellee has shown to this Court that in other expropriation
proceedings filed by appellant, involving lands which are likewise affected by the
transmission lines of NPC's Leyte-Cebu Interconnection Project, National Power
Corporation executed several Deeds of Absolute Sale with the respective owners
of the lots expropriated where NPC agreed to pay the owners of the lands P450.00
per square meter as just compensation. And two Compromise Agreements were
likewise entered into by NPC with the respective owners of the lands where NPC
agreed to pay P420.00 as just compensation for the lots expropriated. In all these
cases, National Power Corporation did not invoke Sec. 3-A of the Revised Charter
of the National Power Corporation.
WHEREFORE, in view of the foregoing, the instant appeal is hereby DISMISSED.
The decision dated 22 December 1997 rendered by the Regional Trial Court of
Danao City, Branch 25, is hereby AFFIRMED.
SO ORDERED. 18 CEDScA
NPC filed a Motion for Reconsideration. This was denied by the appellate court in
a Resolution dated 28 August 2003. 19
Hence, this petition.
The Issue
The issue for our resolution is whether the fair market value awarded by the trial
court may be reduced taking into account that petitioner is allegedly acquiring
only an easement of right of way and that the lands affected are classified as
agricultural.
The Court's Ruling
The petition lacks merit.
Petitioner contends that under Section 3A of its charter, RA 6395, where private
property will be traversed by transmission lines, NPC shall only acquire an
easement of right of way since the landowner retains ownership of the property
and can devote the land to farming and other agricultural purposes. Moreover, in
the present case, since the lands are agricultural with no sign of commercial
activity, the amount of P450 per square meter awarded by the trial court as
market value of the property is excessive and unreasonable.
Respondent, on the other hand, maintains that the affected portions of the lands
are not only traversed by petitioner's transmission lines but a portion is also used
as the site of its transmission tower. He asserts that petitioner cannot hide behind
the provisions of Section 3A and claim that it may only pay landowners an
easement fee not exceeding 10% of the market value of the property. Further,
respondent points out that other landowners similarly affected by the Leyte-Cebu
Interconnection Project were compensated in the amount of P420 to P450 per
9
square meter as shown by deeds of absolute sale 20 and compromise agreements
21 executed by petitioner in other expropriation cases.
Petitioner's reliance on Section 3A 22 of RA 6395 has been struck down by this
Court in a number of cases. 23 Easement of right of way falls within the purview
of the power of eminent domain. In installing the 230 KV Talisay-Compostela
transmission lines which traverse respondent's lands, a permanent limitation is
imposed by petitioner against the use of the lands for an indefinite period. This
deprives respondent of the normal use of the lands. In fact, not only are the
affected areas of the lands traversed by petitioner's transmission lines but a
portion is used as the site of its transmission tower. Because of the danger to life
and limbs that may be caused beneath the high-tension live wires, the landowner
will not be able to use the lands for farming or any agricultural purposes. CHDTIS
Further, the trial and appellate courts fixed the valuation of the lands at P450 per
square meter. The courts considered not only the Commissioners' Report and the
opinion values of different agencies submitted to the trial court but also the
several deeds of absolute sale and compromise agreements entered into by
petitioner with landowners adjacent to respondent's lands.
As shown in the records of the case, petitioner freely and voluntarily entered into
several deeds of absolute sale with other landowners affected by the Leyte-Cebu
Interconnection Project for a P450 per square meter selling price from the years
1996 to 1997. These deeds were identified as: (1) a 3,659 square meter parcel of
land (Lot No. 4387-A) situated in Barangay Tuburan Sur, Danao City, Cebu sold on
15 September 1997 pursuant to Resolution No. 02-97 dated 1 March 1997 of the
Danao City Appraisal Committee; 24 (2) a 1,607.13 square meter parcel of land
(Lot No. 3527-A) situated in Maslog, Danao City sold on 10 November 1997
pursuant to Resolution No. 09-96, series of 1996 dated 28 August 1996 of the
Danao City Appraisal Committee; 25 (3) a 3,350 square meter parcel of land (Lot
No. 3525, Case 4, Cad. 681-D), 1,391.33 square meter land (Lot No. 3813-A),
4,905.22 square meter land (Lot No. 3164-A), and 222.81 square meter land (Lot
No. 3165-A), all situated in Maslog, Danao City, sold in 1996 pursuant to
Resolution No. 07-96 dated 23 October 1996 of the Danao City Appraisal
Committee; 26 (4) a 2,898.72 square meter parcel of land (Lot No. 6609-A)
situated in Barangay Taboc, Danao City sold on 20 January 1997 pursuant to
Resolution No. 09-97 dated 1 August 1997 of the Danao City Appraisal Committee;
27 and (5) a 4,354 square meter parcel of land (Lot No. 4139-A) situated in
Barangay Tuburan Sur, Danao City sold on 12 September 1997 pursuant to
Resolution No. 08-97 dated 11 July 1997 of the Danao City Appraisal Committee.
28
Moreover, petitioner entered into two compromise agreements 29 dated 26 May
1999, duly approved by the trial court, which fixed the valuation of the lands at
P420 per square meter based on the previous valuation fixed and approved by
petitioner and the trial court on three other expropriation cases: (1) DNA-426
entitled "National Power Corporation v. Francisco Villamor, Sr."; (2) DNA-389
entitled "National Power Corporation v. Carlos Villamor"; and (3) DNA-373
entitled "National Power Corporation v. Francisco Camara, et al." These
compromise agreements consisted of an 11,700 square meter parcel of land
situated in Baring and Cantipay, Carmen, Cebu and a 1,675.80 square meter land
situated in Cantipay, Carmen.
Thus, we see no reason to disturb the findings of the trial and appellate courts.
Indeed, respondent is entitled to just compensation or the just and complete
equivalent of the loss which the owner of the thing expropriated has to suffer by
reason of the expropriation. 30 Since the determination of just compensation in
expropriation proceedings is essentially a judicial function, this Court finds the
amount of P450 per square meter to be just and reasonable compensation for the
expropriated lands of respondent.
WHEREFORE, we DENY the petition. We AFFIRM the 19 August 2002 Decision and
28 August 2003 Resolution of the Court of Appeals in CA-G.R. CV No. 61749.
SO ORDERED. aCATSI
Puno, C.J., Corona, Leonardo-de Castro and Bersamin, JJ., concur.
SECOND DIVISION
[G.R. No. 175510. July 28, 2008.]
SPOUSES VICTOR VALDEZ AND JOCELYN VALDEZ, represented by their Attorney-
In-Fact, VIRGILIO VALDEZ, petitioners, vs. SPOUSES FRANCISCO TABISULA AND
CARIDAD TABISULA, respondents.
DECISION
CARPIO-MORALES, J p:
Petitioner-spouses Victor and Jocelyn Valdez purchased via a January 11, 1993
Deed of Absolute Sale 1 (the deed) from respondent-spouses Francisco Tabisula
and Caridad Tabisula a 200 square meter (sq.m.) portion (the subject property) of
a 380 sq. m. parcel of land located in San Fernando, La Union, which 380 sq.m.
parcel of land is more particularly described in the deed as follows: TAacCE
A parcel of land classified as residential lot, bounded on the North by Lot No.
25569, on the East, by Lot No. 247, 251, on the South, by a Creek and on the West,
by Lot No. 223-A, declared under Tax Decl. No. 52820, with an area of 380 square
meters, more or less, and assessed at P17,100.00 for the current year. It is not
registered under Act 496 nor under the Spanish Mortgage Law. (Emphasis and
underscoring supplied)
The pertinent portions of the deed read:
xxx xxx xxx
That for and in consideration of the sum of SEVENTY THOUSAND (P70,000.00)
PESOS, Philippine Currency [sic] paid to us at our entire satisfaction by spouses
VICTOR and JOECELYN [sic] VALDEZ, both of legal age, Filipinos and residents of
148 P. Burgos St., San Fernando, La Union, receipt of which is hereby
acknowledged, do hereby SELL, CONVEY and TRANSFER by way of absolute sale
unto the said spouses Victor and Joecelyn Valdez, their heirs and assigns, the TWO
HUNDRED (200) SQUARE METERS, EASTERN PORTION of the parcel of land above-
described, free from all liens and encumbrances. ECISAD
xxx xxx xxx
That now and hereinafter, said VENDEE-SPOUSES VICTOR and JOECELYN [sic]
VALDEZ shall be the absolute owners of the said 200 sq. meters, eastern portion
and that we shall warrant and forever defend their ownership of the same against
the claims of all persons whomsoever; they shall be provided a 2 1/2 meters [sic]
wide road right-of-way on the western side of their lot but which is not included
in this sale.
xxx xxx xxx (Emphasis and underscoring supplied)
Respondents subsequently built a concrete wall on the western side of the subject
property. 2 Believing that that side is the intended road right of way mentioned
in the deed, petitioners, through their representative, reported the matter to the
barangay for mediation and conciliation. Respondents failed to attend the
conferences scheduled by the barangay, however, drawing petitioners to file in
April 1999 or more than six years after the execution of the deed a Complaint for
Specific Performance with Damages 3 against respondents before the Regional
Trial Court (RTC) of San Fernando City, La Union. SEDIaH
In their complaint, petitioners alleged that they purchased the subject property
on the strength of respondents' assurance of providing them a road right of way.
They thus prayed that respondents be ordered to provide the subject property
with a 2 1/2-meter wide easement and to remove the concrete wall blocking the
same. 4
Respondents, in their Answer with Compulsory Counterclaim (for damages and
attorney's fees), 5 averred that the 2 1/2-meter easement should be taken from
the western portion of the subject property and not from theirs; 6 and petitioners
and their family are also the owners of two properties adjoining the subject
property, which adjoining properties have access to two public roads or highways
— the bigger one which adjoins P. Burgos St. on the north, and the smaller one
which abuts an existing barangay road on the north. 7
Respondents further averred that they could not have agreed to providing
petitioners an easement "on the western side of their lot" as there exists a two-
storey concrete house on their lot where the supposed easement is to be located,
which was erected long before the subject property was sold to petitioners. 8 In
10
support of this claim, respondents submitted a February 20, 2003 letter from the
City Engineer's Office. 9 AcCTaD
Branch 26 of the RTC of San Fernando dismissed petitioners' complaint and
granted respondents' Counterclaim by Decision 10 of March 18, 2005, the
dispositive portion of which reads:
WHEREFORE, and in view of all the foregoing, judgment is hereby rendered
finding the defendants as against the plaintiffs and hereby orders the Complaint
dismissed for being unmeritorious and plaintiffs are hereby ordered to pay the
defendants, the following:
1) P100,000.00 as moral damages;
2) P50,000.00 as exemplary damages;
3) P50,000.00 as attorney's fees;
4) P30,000.00 as expenses of litigation; and
5) To pay the costs. ETHSAI
SO ORDERED. 11 (Underscoring supplied)
On appeal by petitioners, the Court of Appeals, by Decision of May 29, 2006, 12
affirmed that of the trial court, it holding that the deed only conveyed ownership
of the subject property to petitioners, and that the reference therein to an
easement in favor of petitioners is not a definite grant-basis of a voluntary
easement of right of way. 13
The appellate court went on to hold that petitioners are neither entitled to a legal
or compulsory easement of right of way as they failed to present circumstances
justifying their entitlement to it under Article 649 of the Civil Code. 14
Petitioners' motion for reconsideration 15 having been denied by the Court of
Appeals by Resolution of November 15, 2006, they filed the present petition for
review on certiorari faulting the trial [sic] court:
I. . . . IN RULING THAT THE RIGHT OF WAY IS NOT PART OF THE ABSOLUTE DEED
OF SALE DATED JANUARY 11, 1993;
II. . . . IN RULING THAT THE PROVISION OF THE ABSOLUTE DEED OF SALE
GRANTING A RIGHT OF WAY IS VAGUE AND OBSCURE;
III. . . . IN AWARDING MORAL AND EXEMPLARY DAMAGES TO THE RESPONDENTS.
16 (Underscoring supplied) ASHICc
An easement or servitude is "a real right constituted on another's property,
corporeal and immovable, by virtue of which the owner of the same has to abstain
from doing or to allow somebody else to do something on his property for the
benefit of another thing or person". 17 The statutory basis of this right is Article
613 of the Civil Code which reads:
Art. 613. An easement or servitude is an encumbrance imposed upon an
immovable for the benefit of another immovable belonging to a different owner.
TAECaD
The immovable in favor of which the easement is established is called the
dominant estate; that which is subject thereto, the servient estate.
There are two kinds of easements according to source — by law or by the will of
the owners. So Article 619 of the Civil Code provides:
Art. 619. Easements are established either by law or by the will of the owners. The
former are called legal and the latter voluntary easements. DHATcE
From the allegations in petitioners' complaint, it is clear that what they seek to
enforce is an alleged grant in the deed by respondents of an easement reading:
"they shall be provided a 2 1/2 meters wide road right-of-way on the western side
of their lot but which is not included in this sale".
Article 1358 of the Civil Code provides that any transaction involving the sale or
disposition of real property must be in writing. 18 The stipulation harped upon by
petitioners that they "shall be provided a 2 1/2 meters wide road right-of-way on
the western side of their lot but which is not included in this sale" is not a
disposition of real property. The proviso that the intended grant of right of way is
"not included in this sale" could only mean that the parties would have to enter
into a separate and distinct agreement for the purpose. 19 The use of the word
"shall", which is imperative or mandatory in its ordinary signification, should be
construed as merely permissive where, as in the case at bar, no public benefit or
private right requires it to be given an imperative meaning. 20
Besides, a document stipulating a voluntary easement must be recorded in the
Registry of Property in order not to prejudice third parties. So Articles 708 and
709 of the Civil Code call for, viz.:
Art. 708. The Registry of Property has for its object the inscription or annotation
of acts and contracts relating to the ownership and other rights over immovable
property. CTDAaE
Art. 709. The titles of ownership, or of other rights over immovable property,
which are not duly inscribed or annotated in the Registry of Property shall not
prejudice third persons.
Petitioners are neither entitled to a legal or compulsory easement of right of way.
For to be entitled to such kind of easement, the preconditions under Articles 649
and 650 of the Civil Code must be established, viz.:
Art. 649. The owner, or any person who by virtue of a real right may cultivate or
use any immovable, which is surrounded by other immovables pertaining to other
persons, and without adequate outlet to a public highway, is entitled to demand
a right of way through the neighboring estates, after payment of the proper
indemnity. SaHcAC
xxx xxx xxx
This easement is not compulsory if the isolation of the immovable is due to the
proprietor's own acts. (Underscoring supplied)
Art. 650. The easement of right of way shall be established at the point least
prejudicial to the servient estate, and, insofar as consistent with this rule, where
the distance from the dominant estate to a public highway may be the shortest.
(Underscoring supplied)
Thus, to be conferred a legal easement of right of way under Article 649, the
following requisites must be complied with: (1) the property is surrounded by
other immovables and has no adequate outlet to a public highway; (2) proper
indemnity must be paid; (3) the isolation is not the result of the owner of the
dominant estate's own acts; (4) the right of way claimed is at the point least
prejudicial to the servient estate; and (5) to the extent consistent with the
foregoing rule, the distance from the dominant estate to a public highway may be
the shortest. 21 The onus of proving the existence of these prerequisites lies on
the owner of the dominant estate, 22 herein petitioners. cAEaSC
As found, however, by the trial court, which is supported by the Sketch 23 (Exhibit
"B"; Exhibit "1") of the location of the lots of the parties and those adjoining them,
a common evidence of the parties, petitioners and their family are also the
owners of two properties adjoining the subject property which have access to two
public roads or highways. 24
Since petitioners then have more than adequate passage to two public roads, they
have no right to demand the grant by respondents of an easement on the
"western side of [respondents'] lot".
It may not be amiss to note at this juncture that at the time the deed was executed
in 1993, the barangay road-Exhibit "1-G", by which petitioners could access
Burgos Street-Exhibit "1-F", was not yet in existence; and that the Interior Street-
Exhibit "1-H", which petitioners via this case seek access to with a right of way,
was still a creek, 25 as reflected in the earlier-quoted particular description of
respondents' parcel of land from which the subject property originally formed
part. AaSTIH
Respecting the grant of damages in favor of respondents by the trial court which
was affirmed by the appellate court, the Court finds the same baseless.
11
To merit an award of moral damages, there must be proof of moral suffering,
mental anguish, fright and the like. It is not enough that one suffers sleepless
nights, mental anguish, serious anxiety as a result of the actuation of the other
party. 26 Invariably, such actuation must be shown by clear and convincing
evidence 27 to have been willfully done in bad faith or with ill-motive.
In respondents' case, they predicated their Counterclaim for damages on general
allegations of sickness, humiliation and embarrassment, without establishing bad
faith, fraud or ill-motive on petitioners' part. 28 DHESca
More importantly, respondents are precluded from filing any counterclaim in light
of Article 199 of Rule XXVI of the Rules and Regulations Implementing the Local
Government Code of 1991 reading:
xxx xxx xxx
ARTICLE 199. Penalty for Refusal or Failure of Any Party or Witness to Appear
before the Lupon or Pangkat. — Refusal or willful failure of any party or witness
to appear before the lupon or pangkat in compliance with summons issued
pursuant to this Rule may be punished by the city or municipal court as for indirect
contempt of court upon application filed therewith by the lupon chairman, the
pangkat chairman, or by any of the contending parties. Such refusal or willful
failure to appear shall be reflected in the records of the lupon secretary or in the
minutes of the pangkat secretary and shall bar the complainant who fails to
appear, from seeking judicial recourse for the same course of action, and the
respondent who refuses to appear, from filing any counterclaim arising out of, or
necessarily connected with the complaint. EHSADc
xxx xxx xxx (Emphasis and underscoring supplied)
While respondent Caridad Tabisula claimed that she always appeared, when
summoned, before the barangay lupon, 29 the following Certificate to File Action
30 belies the claim.
xxx xxx xxx
This is to certify that respondents failed to appear for (2) Mediation Proceeding
before our Punong Barangay thus the corresponding complaint may now be filed
in court. TEcAHI
Issued this 24th day of November 1998 at the Multi Purpose Hall, Barangay 1 City
of San Fernando (LU).
xxx xxx xxx (Underscoring supplied)
The award for moral damages being thus baseless, that for exemplary damages
must too be baseless.
As for the award of attorney's fees and expenses of litigation, respondents have
not shown their entitlement thereto in accordance with Article 2208 of the Civil
Code.
WHEREFORE, the May 29, 2006 Decision and November 15, 2006 Resolution of
the Court of Appeals are MODIFIED in that the grant of the Counterclaim of
respondents, Spouses Francisco Tabisula and Caridad Tabisula, is reversed and set
aside. In all other respects, the challenged decision is AFFIRMED. HSaCcE
Costs against petitioners.
SO ORDERED.
Quisumbing, Tinga, Velasco, Jr. and Brion, JJ., concur.
THIRD DIVISION
[G.R. No. 160613. February 12, 2008.]
APOLINARDITO C. QUINTANILLA and PERFECTA C. QUINTANILLA, petitioners, vs.
PEDRO ABANGAN and DARYL'S COLLECTION INT'L. INC., respondents.
RESOLUTION
NACHURA, J p:
Before this Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules
of Civil Procedure seeking the reversal of the Court of Appeals (CA) Decision 2
dated April 21, 2003, which affirmed the Decision 3 of the Regional Trial Court
(RTC), Branch 57 of Cebu City, dated June 21, 2000.
This controversy flows from a case for Easement of Right of Way filed by petitioner
Apolinardito C. Quintanilla (Apolinardito) and his mother, petitioner Perfecta C.
Quintanilla (Perfecta) against respondent Pedro Abangan (Pedro) and respondent
Daryl's Collection International, Inc. (DARYL'S).
Sometime in the 1960s, Perfecta bought Lot No. 3771-B-1-A, with an area of 2,244
square meters, located at Inayawan, Cebu City (the dominant estate) from one
Dionisio Abasolo, who formerly owned all the properties therein. Thereafter,
Perfecta donated the dominant estate to Apolinardito, who is now the registered
owner thereof. 4 Petitioners own QC Rattan Inc., a domestic corporation engaged
in the manufacture and export of rattan-made furniture. In the conduct of their
business, they use vans to haul and transport raw materials and finished products.
As they wanted to expand their business and construct a warehouse on their
property (the dominant estate), they asked for a right of way from Pedro
sometime in April 1994. ACcEHI
However, it appears that Pedro, who was the owner of Lot No. 3771-A-1,
containing an area of 1,164 square meters 5 (the servient estate) and a lot near
the dominant estate, sold the same to DARYL'S on March 24, 1994, 6 and
thereafter, DARYL'S constructed a warehouse over the servient estate, enclosing
the same with a concrete fence.
Petitioners, thus, sought the imposition of an easement of right of way, six (6)
meters in width, or a total area of 244 square meters, over the servient estate.
On June 21, 2000, the RTC dismissed the case for lack of merit. The RTC held that
petitioners failed to establish that the imposition of the right of way was the least
prejudicial to the servient estate. The RTC noted that there is already a concrete
fence around the area and that six (6) meters from the said concrete fence was a
concrete warehouse. Thus, substantial damage and substantial reduction in area
would be caused the servient estate. Moreover, the RTC observed that
petitioners' insistence on passing through the servient estate would make for easy
and convenient access to the main thoroughfare for their vans. Otherwise, if the
right of way were to be constituted on any of the other surrounding properties,
their vans would have to make a turn. On this premise, the RTC opined that mere
convenience to the dominant estate was not necessarily the basis for setting up a
compulsory easement of right of way. ACcTDS
Aggrieved, petitioners went to the CA on appeal.
In its Decision dated April 21, 2003, the CA affirmed the RTC Decision, holding that
the criterion of least prejudice to the servient estate must prevail over the
shortest distance. A longer way may, thus, be established to avoid injury to the
servient tenement, such as when there are constructions or walls which can be
avoided by a round-about way, 7 as in this case. Petitioners filed a Motion for
Reconsideration, 8 but the same was denied in the CA Resolution 9 dated
September 24, 2003.
Hence, the instant petition based on the following grounds:
a) IN A COMPULSORY EASEMENT OF RIGHT OF WAY, AS SET FORTH IN THE
PRECONDITIONS UNDER ARTICLES 649 10 AND 650 11 OF THE NEW CIVIL CODE,
THE DETERMINATION OF THE LEAST PREJUDICIAL OR LEAST DAMAGE TO THE
SERVIENT ESTATE SHOULD BE AT THE TIME OF THE FILING OF THE ORIGINAL
COMPLAINT AND NOT AFTER THE FILING, ESPECIALLY WHEN THE OWNER OF THE
SERVIENT ESTATE IS GUILTY OF ABUSE OF RIGHTS CONSIDERED AS THE GREATEST
OF ALL POSSIBLE WRONGS OR BAD FAITH BY CONSTRUCTING A CONCRETE FENCE
AND WAREHOUSE THEREON THROUGH MISREPRESENTATION TO THE OFFICE OF
THE CEBU CITY BUILDING OFFICIAL THAT IT HAD GRANTED A RIGHT OF WAY OF
SIX (6) METERS TO PETITIONERS; AND DCTHaS
b) WHETHER OR NOT COMPLIANCE WITH THE PRECONDITIONS SET FORTH IN
ARTICLES 649 AND 650 OF THE NEW CIVIL CODE IS SUPERIOR TO THE "MERE
CONVENIENCE RULE AGAINST THE OWNER OF THE DOMINANT ESTATE."
12
Petitioners claim that DARYL'S constructed the concrete fence only after
petitioners filed the case for an Easement of Right of Way against Pedro on May
27, 1994. They submit that the criterion of least prejudice should be applied at
the time of the filing of the original complaint; otherwise, it will be easy for the
servient estate to evade the burden by subsequently constructing structures
thereon in order to increase the damage or prejudice. 12 Moreover, they pointed
out that a Notice of Lis Pendens was annotated on Pedro's title. Thus, petitioners
aver that DARYL'S is in bad faith and is guilty of abuse of rights as provided under
Article 19 13 of the New Civil Code. 14
On the other hand, DARYL'S counters that petitioners belatedly imputed bad faith
to it since petitioners' pre-trial brief filed with the RTC contained no allegation of
bad faith or misrepresentation. Moreover, DARYL'S reiterates its position that
establishing a right of way over the servient estate would cause substantial
damage, considering that a concrete fence has already been erected thereon.
Most importantly, DARYL'S submits that petitioners can have adequate ingress to
or egress from the dominant estate by passing through other surrounding vacant
lots. Lastly, DARYL'S points out that when Perfecta bought the dominant estate
from Dionisio Abasolo, the surrounding lots were also owned by the latter. 15
For his part, Pedro manifests that he is adopting all the defenses invoked by
DARYL'S in the belief that he is no longer a party to the instant case as he had
already sold the servient estate to DARYL'S and a title already issued in the latter's
name. 16 TAECSD
The instant petition lacks merit.
We hold that Apolinardito as owner of the dominant estate together with
Perfecta failed to discharge the burden of proving the existence and concurrence
of all the requisites in order to validly claim a compulsory right of way against
respondents. 17
It should be remembered that to be entitled to a legal easement of right of way,
the following requisites must be satisfied: (1) the dominant estate is surrounded
by other immovables and has no adequate outlet to a public highway; (2) proper
indemnity has been paid; (3) the isolation was not due to acts of the proprietor of
the dominant estate; and (4) the right of way claimed is at the point least
prejudicial to the servient estate. 18
The fourth requisite is absent.
We are in full accord with the ruling of the CA when it aptly and judiciously held,
to wit:
As provided for under the provisions of Article 650 of the New Civil Code, the
easement of right of way shall be established at the point least prejudicial to the
servient estate, and, insofar as consistent with this rule, where the distance from
the dominant estate to a public highway may be the shortest. Where there are
several tenements surrounding the dominant estate, and the easement may be
established on any of them, the one where the way is shortest and will cause the
least damage should be chosen. But if these two circumstances do not concur in
a single tenement, as in the instant case, the way which will cause the least
damage should be used, even if it will not be the shortest. The criterion of least
prejudice to the servient estate must prevail over the criterion of shortest
distance. The court is not bound to establish what is the shortest; a longer way
may be established to avoid injury to the servient tenement, such as when there
are constructions or walls which can be avoided by a round-about way, as in the
case at bar.
As between a right of way that would demolish a fence of strong materials to
provide ingress and egress to a public highway and another right of way which
although longer will only require a van or vehicle to make a turn, the second
alternative should be preferred. Mere convenience for the dominant estate is not
what is required by law as the basis for setting up a compulsory easement. Even
in the face of necessity, if it can be satisfied without imposing the easement, the
same should not be imposed. DIETHS
Finally, worthy of note, is the undisputed fact that there is already a newly opened
public road barely fifty (50) meters away from the property of appellants, which
only shows that another requirement of the law, that is, there is no adequate
outlet, has not been met to establish a compulsory right of way.
Such pronouncement by the CA is in line with this Court's ruling in Quimen v. Court
of Appeals, 19 where we held that as between a right of way that would demolish
a store of strong materials to provide egress to a public highway, and another
right of way which, although longer, will only require an avocado tree to be cut
down, the second alternative should be preferred.
As a rule, findings of fact of the CA, affirming those of the trial court, are generally
final and conclusive on this Court. 20 While this Court has recognized several
exceptions 21 to this rule, none of these exceptions finds application in this case.
Ergo, we find no cogent reason and reversible error to disturb the unanimous
findings of the RTC and the CA as these are amply supported by the law and
evidence on record.
WHEREFORE, the instant Petition is DENIED for lack of merit. The assailed Court
of Appeals Decision, dated April 21, 2003, and Resolution dated September 24,
2003 are hereby AFFIRMED. Costs against the petitioners. SIEHcA
SO ORDERED.
Ynares-Santiago, Austria-Martinez, Corona, * and Reyes, JJ., concur.
SECOND DIVISION
[G.R. No. 152230. August 9, 2005.]
JESUS IS LORD CHRISTIAN SCHOOL FOUNDATION, INC., petitioner, vs.
MUNICIPALITY (now CITY) OF PASIG, METRO MANILA, respondent.
Jose-San Juan & Associates for petitioner.
Carlos C. Abesamis for respondent.
SYLLABUS
1. POLITICAL LAW; STATE; INHERENT POWERS; LOCAL GOVERNMENT CODE;
EMINENT DOMAIN; NATURE AND SCOPE. — The right of eminent domain is
usually understood to be an ultimate right of the sovereign power to appropriate
any property within its territorial sovereignty for a public purpose. The nature and
scope of such power has been comprehensively described as follows: . . . It is an
indispensable attribute of sovereignty; a power grounded in the primary duty of
government to serve the common need and advance the general welfare. Thus,
the right of eminent domain appertains to every independent government
without the necessity for constitutional recognition. The provisions found in
modern constitutions of civilized countries relating to the taking of property for
the public use do not by implication grant the power to the government, but limit
the power which would, otherwise, be without limit. Thus, our own Constitution
provides that "[p]rivate property shall not be taken for public use without just
compensation." Furthermore, the due process and equal protection clauses act
as additional safeguards against the arbitrary exercise of this governmental
power.
2. ID.; ID.; ID.; ID.; STRICT CONSTRUCTION AND BURDEN OF PROOF THEREOF. —
The exercise of the right of eminent domain, whether directly by the State or by
its authorized agents, is necessarily in derogation of private rights. It is one of the
harshest proceedings known to the law. Consequently, when the sovereign
delegates the power to a political unit or agency, a strict construction will be given
against the agency asserting the power. The authority to condemn is to be strictly
construed in favor of the owner and against the condemnor. When the power is
granted, the extent to which it may be exercised is limited to the express terms
or clear implication of the statute in which the grant is contained. Corollarily, the
respondent, which is the condemnor, has the burden of proving all the essentials
necessary to show the right of condemnation. It has the burden of proof to
establish that it has complied with all the requirements provided by law for the
valid exercise of the power of eminent domain.
3. ID.; ID.; ID.; ID.; REQUISITES FOR VALID EXERCISE THEREOF. — The grant of the
power of eminent domain to local government units is grounded on Section 19 of
R.A. No. 7160. The Court declared that the following requisites for the valid
exercise of the power of eminent domain by a local government unit must be
complied with: 1. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the local government unit, to
13
exercise the power of eminent domain or pursue expropriation proceedings over
a particular private property. 2. The power of eminent domain is exercised for
public use, purpose or welfare, or for the benefit of the poor and the landless. 3.
There is payment of just compensation, as required under Section 9, Article III of
the Constitution, and other pertinent laws. 4. A valid and definite offer has been
previously made to the owner of the property sought to be expropriated, but said
offer was not accepted.
4. ID.; ID; ID.; ID.; VALID AND DEFINITE OFFER, A MANDATORY REQUIREMENT;
FAILURE TO COMPLY WILL RESULT IN DISMISSAL OF COMPLAINT FOR EMINENT
DOMAIN. — The respondent was burdened to prove the mandatory requirement
of a valid and definite offer to the owner of the property before filing its complaint
and the rejection thereof by the latter. It is incumbent upon the condemnor to
exhaust all reasonable efforts to obtain the land it desires by agreement. Failure
to prove compliance with the mandatory requirement will result in the dismissal
of the complaint. An offer is a unilateral proposition which one party makes to the
other for the celebration of a contract. It creates a power of acceptance
permitting the offeree, by accepting the offer, to transform the offeror's promise
into a contractual obligation. Corollarily, the offer must be complete, indicating
with sufficient clearness the kind of contract intended and definitely stating the
essential conditions of the proposed contract. An offer would require, among
other things, a clear certainty on both the object and the cause or consideration
of the envisioned contract.
5. ID.; ID.; ID.; ID.; ID.; PURPOSE OF REQUIREMENT THEREOF IS TO ENCOURAGE
SETTLEMENTS AND VOLUNTARY ACQUISITIONS OF PROPERTY NEEDED FOR
PUBLIC PURPOSES IN ORDER TO AVOID THE EXPENSE AND DELAY OF A COURT
ACTION; A SINGLE BONA FIDE OFFER THAT IS REJECTED BY THE OWNER WILL
SUFFICE. — The purpose of the requirement of a valid and definite offer to be first
made to the owner is to encourage settlements and voluntary acquisition of
property needed for public purposes in order to avoid the expense and delay of a
court action. The law is designed to give to the owner the opportunity to sell his
land without the expense and inconvenience of a protracted and expensive
litigation. This is a substantial right which should be protected in every instance.
It encourages acquisition without litigation and spares not only the landowner but
also the condemnor, the expenses and delays of litigation. It permits the
landowner to receive full compensation, and the entity acquiring the property,
immediate use and enjoyment of the property. A reasonable offer in good faith,
not merely perfunctory or pro forma offer, to acquire the property for a
reasonable price must be made to the owner or his privy. A single bona fide offer
that is rejected by the owner will suffice.
6. ID.; ID.; ID.; ID.; ID.; RESPONDENT FAILED TO PROVE THAT BEFORE IT FILED ITS
COMPLAINT, IT MADE A WRITTEN DEFINITE AND VALID OFFER TO ACQUIRE THE
PROPERTY FOR PUBLIC USE AS AN ACCESS ROAD. — The expropriating authority
is burdened to make known its definite and valid offer to all the owners of the
property. However, it has a right to rely on what appears in the certificate of title
covering the land to be expropriated. Hence, it is required to make its offer only
to the registered owners of the property. After all, it is well-settled that persons
dealing with property covered by a Torrens certificate of title are not required to
go beyond what appears on its face. In the present case, the respondent failed to
prove that before it filed its complaint, it made a written definite and valid offer
to acquire the property for public use as an access road. The only evidence
adduced by the respondent to prove its compliance with Section 19 of the Local
Government Code is the photocopy of the letter purportedly bearing the
signature of Engr. Jose Reyes, to only one of the co-owners, Lorenzo Ching
Cuanco. It bears stressing, however, that the respondent offered the letter only
to prove its desire or intent to acquire the property for a right-of-way. The
document was not offered to prove that the respondent made a definite and valid
offer to acquire the property. Moreover, the RTC rejected the document because
the respondent failed to adduce in evidence the original copy thereof. The
respondent, likewise, failed to adduce evidence that copies of the letter were sent
to and received by all the co-owners of the property, namely, Lorenzo Ching
Cuanco, Victor Ching Cuanco and Ernesto Kho.
7. ID.; ID.; ID.; ID.; ID.; A LETTER, WHICH IS MERELY AN INVITATION TO A
CONFERENCE TO DISCUSS THE PROJECT AND ITS PRICE DOES NOT AMOUNT TO A
VALID AND DEFINITE OFFER TO PURCHASE. — Even if the letter was, indeed,
received by the co-owners, the letter is not a valid and definite offer to purchase
a specific portion of the property for a price certain. It is merely an invitation for
only one of the co-owners, Lorenzo Ching Cuanco, to a conference to discuss the
project and the price that may be mutually acceptable to both parties.
8. ID.; ID.; ID.; ID.; ID.; ANNOTATION OF A NOTICE OF LIS PENDENS IN
PETITIONER'S TRANSFER CERTIFICATE OF TITLE IS NOT A SUBSTANTIAL
COMPLIANCE WITH THE REQUISITE OFFER. — There is no legal and factual basis
to the CA's ruling that the annotation of a notice of lis pendens at the dorsal
portion of petitioner's TCT No. PT-92579 is a substantial compliance with the
requisite offer. A notice of lis pendens is a notice to the whole world of the
pendency of an action involving the title to or possession of real property and a
warning that those who acquire an interest in the property do so at their own risk
and that they gamble on the result of the litigation over it. Moreover, the lis
pendens was annotated at the dorsal portion of the title only on November 26,
1993, long after the complaint had been filed in the RTC against the Ching
Cuancos.
9. ID.; ID.; ID.; ID.; ID.; DECLARATION OF NOTICE IN ONE OF THE WHEREAS
CLAUSES OF THE ORDINANCE IS NOT ALSO A SUBSTANTIAL COMPLIANCE WITH
THE REQUIREMENT OF A VALID AND DEFINITE OFFER UNDER SECTION 19 OF R.A.
NO. 7160. — Neither is the declaration in one of the whereas clauses of the
ordinance that "the property owners were already notified by the municipality of
the intent to purchase the same for public use as a municipal road," a substantial
compliance with the requirement of a valid and definite offer under Section 19 of
R.A. No. 7160. Presumably, the Sangguniang Bayan relied on the erroneous
premise that the letter of Engr. Reyes reached the co-owners of the property. In
the absence of competent evidence that, indeed, the respondent made a definite
and valid offer to all the co-owners of the property, aside from the letter of Engr.
Reyes, the declaration in the ordinance is not a compliance with Section 19 of R.A.
No. 7160.
10. ID.; ID.; ID.; ID.; REQUIREMENT OF PUBLIC NECESSITY; WHATEVER MAY BE
BENEFICIALLY EMPLOYED FOR THE GENERAL WELFARE SATISFIES THE
REQUIREMENT OF PUBLIC USE AND THAT ONLY FEW WOULD ACTUALLY BENEFIT
FROM THE EXPROPRIATION DOES NOT NECESSARILY DIMINISH THE ESSENCE AND
CHARACTER OF PUBLIC USE. — We reject the contention of the petitioner that its
property can no longer be expropriated by the respondent because it is intended
for the construction of a place for religious worship and a school for its members.
As aptly explained by this Court in Manosca v. Court of Appeals, thus: It has been
explained as early as Seña v. Manila Railroad Co., that: . . . A historical research
discloses the meaning of the term "public use" to be one of constant growth. As
society advances, its demands upon the individual increases and each demand is
a new use to which the resources of the individual may be devoted. . . . for
"whatever is beneficially employed for the community is a public use." Chief
Justice Enrique M. Fernando states: The taking to be valid must be for public use.
There was a time when it was felt that a literal meaning should be attached to
such a requirement. Whatever project is undertaken must be for the public to
enjoy, as in the case of streets or parks. Otherwise, expropriation is not allowable.
It is not so any more. As long as the purpose of the taking is public, then the power
of eminent domain comes into play. As just noted, the constitution in at least two
cases, to remove any doubt, determines what is public use. One is the
expropriation of lands to be subdivided into small lots for resale at cost to
individuals. The other is the transfer, through the exercise of this power, of
utilities and other private enterprise to the government. It is accurate to state
then that at present whatever may be beneficially employed for the general
welfare satisfies the requirements of public use. Chief Justice Fernando, writing
the ponencia in J.M. Tuason & Co. vs. Land Tenure Administration, has viewed the
Constitution a dynamic instrument and one that "is not to be construed narrowly
or pedantically so as to enable it to meet adequately whatever problems the
future has in store." Fr. Joaquin Bernas, a noted constitutionalist himself, has aptly
observed that what, in fact, has ultimately emerged is a concept of public use
which is just as broad as "public welfare." Petitioners ask: But "(w)hat is the so-
called unusual interest that the expropriation of (Felix Manalo's) birthplace
become so vital as to be a public use appropriate for the exercise of the power of
eminent domain" when only members of the Iglesia ni Cristo would benefit? This
attempt to give some religious perspective to the case deserves little
consideration, for what should be significant is the principal objective of, not the
casual consequences that might follow from, the exercise of the power. The
purpose in setting up the marker is essentially to recognize the distinctive
contribution of the late Felix Manalo to the culture of the Philippines, rather than
to commemorate his founding and leadership of the Iglesia ni Cristo. The practical
reality that greater benefit may be derived by members of the Iglesia ni Cristo
than by most others could well be true but such a peculiar advantage still remains
to be merely incidental and secondary in nature. Indeed, that only a few would
actually benefit from the expropriation of property, does not necessarily diminish
the essence and character of public use.
14
11. ID.; ID.; ID.; ID.; ALTHOUGH THE EXPROPRIATION IS FOR THE PURPOSE OF
CONSTRUCTING A ROAD, RESPONDENT IS NOT MANDATED TO COMPLY WITH THE
ESSENTIAL REQUISITES FOR AN EASEMENT OF RIGHT OF WAY UNDER THE NEW
CIVIL CODE. — The subject property is expropriated for the purpose of
constructing a road. The respondent is not mandated to comply with the essential
requisites for an easement of right-of-way under the New Civil Code. Case law has
it that in the absence of legislative restriction, the grantee of the power of
eminent domain may determine the location and route of the land to be taken
unless such determination is capricious and wantonly injurious. Expropriation is
justified so long as it is for the public good and there is genuine necessity of public
character. Government may not capriciously choose what private property should
be taken. The respondent has demonstrated the necessity for constructing a road
from E.R. Santos Street to Sto. Tomas Bukid. The witnesses, who were residents
of Sto. Tomas Bukid, testified that although there were other ways through which
one can enter the vicinity, no vehicle, however, especially fire trucks, could enter
the area except through the newly constructed Damayan Street. This is more than
sufficient to establish that there is a genuine necessity for the construction of a
road in the area. After all, absolute necessity is not required, only reasonable and
practical necessity will suffice.
12. ID.; ID.; ID.; ID.; RESPONDENT FAILED TO SHOW THE NECESSITY FOR
CONSTRUCTING A ROAD PARTICULARLY IN PETITIONER'S PROPERTY AND NOT
ELSEWHERE. — The respondent failed to show the necessity for constructing the
road particularly in the petitioner's property and not elsewhere. We note that the
whereas clause of the ordinance states that the 51-square meter lot is the
shortest and most suitable access road to connect Sto. Tomas Bukid to E.R. Santos
Street. The respondent's complaint also alleged that the said portion of the
petitioner's lot has been surveyed as the best possible ingress and egress.
However, the respondent failed to adduce a preponderance of evidence to prove
its claims.
13. ID.; ID.; ID.; ID.; SINCE PETITIONER WAS NOT NOTIFIED OF ANY OCULAR
INSPECTION ON THE SUBJECT PROPERTY, ANY FACTUAL FINDING OF THE COURT
BASED ON THE SAID INSPECTION HAS NO PROBATIVE VALUE. — As correctly
pointed out by the petitioner, there is no showing in the record that an ocular
inspection was conducted during the trial. If, at all, the trial court conducted an
ocular inspection of the subject property during the trial, the petitioner was not
notified thereof. The petitioner was, therefore, deprived of its right to due
process. It bears stressing that an ocular inspection is part of the trial as evidence
is thereby received and the parties are entitled to be present at any stage of the
trial. Consequently, where, as in this case, the petitioner was not notified of any
ocular inspection of the property, any factual finding of the court based on the
said inspection has no probative weight. The findings of the trial court based on
the conduct of the ocular inspection must, therefore, be rejected.
DECISION
CALLEJO, SR., J p:
Before us is a petition for review of the Decision 1 of the Court of Appeals (CA) in
CA-G.R. CV No. 59050, and its Resolution dated February 18, 2002, denying the
motion for reconsideration thereof. The assailed decision affirmed the order of
the Regional Trial Court (RTC) of Pasig, Branch 160, declaring the respondent
Municipality (now City) of Pasig as having the right to expropriate and take
possession of the subject property.
The Antecedents
The Municipality of Pasig needed an access road from E. R. Santos Street, a
municipal road near the Pasig Public Market, to Barangay Sto. Tomas Bukid, Pasig,
where 60 to 70 houses, mostly made of light materials, were located. The road
had to be at least three meters in width, as required by the Fire Code, so that fire
trucks could pass through in case of conflagration. 2 Likewise, the residents in the
area needed the road for water and electrical outlets. 3 The municipality then
decided to acquire 51 square meters out of the 1,791-square meter property of
Lorenzo Ching Cuanco, Victor Ching Cuanco and Ernesto Ching Cuanco Kho
covered by Transfer Certificate of Title (TCT) No. PT-66585, 4 which is abutting E.
R. Santos Street.
On April 19, 1993, the Sangguniang Bayan of Pasig approved an Ordinance 5
authorizing the municipal mayor to initiate expropriation proceedings to acquire
the said property and appropriate the fund therefor. The ordinance stated that
the property owners were notified of the municipality's intent to purchase the
property for public use as an access road but they rejected the offer. STIHaE

On July 21, 1993, the municipality filed a complaint, amended on August 6, 1993,
against the Ching Cuancos for the expropriation of the property under Section 19
of Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code.
The plaintiff alleged therein that it notified the defendants, by letter, of its
intention to construct an access road on a portion of the property but they
refused to sell the same portion. The plaintiff appended to the complaint a
photocopy of the letter addressed to defendant Lorenzo Ching Cuanco. 6
The plaintiff deposited with the RTC 15% of the market value of the property
based on the latest tax declaration covering the property. On plaintiff's motion,
the RTC issued a writ of possession over the property sought to be expropriated.
On November 26, 1993, the plaintiff caused the annotation of a notice of lis
pendens at the dorsal portion of TCT No. PT-92579 under the name of the Jesus
Is Lord Christian School Foundation, Incorporated (JILCSFI) which had purchased
the property. 7 Thereafter, the plaintiff constructed therein a cemented road with
a width of three meters; the road was called Damayan Street.
In their answer, 8 the defendants claimed that, as early as February 1993, they
had sold the said property to JILCSFI as evidenced by a deed of sale 9 bearing the
signature of defendant Ernesto Ching Cuanco Kho and his wife.
When apprised about the complaint, JILCSFI filed a motion for leave to intervene
as defendant-in-intervention, which motion the RTC granted on August 26, 1994.
10
In its answer-in-intervention, JILCSFI averred, by way of special and affirmative
defenses, that the plaintiff's exercise of eminent domain was only for a particular
class and not for the benefit of the poor and the landless. It alleged that the
property sought to be expropriated is not the best portion for the road and the
least burdensome to it. The intervenor filed a crossclaim against its co-defendants
for reimbursement in case the subject property is expropriated. 11 In its amended
answer, JILCSFI also averred that it has been denied the use and enjoyment of its
property because the road was constructed in the middle portion and that the
plaintiff was not the real party-in-interest. The intervenor, likewise, interposed
counterclaims against the plaintiff for moral damages and attorney's fees. 12
During trial, Rolando Togonon, the plaintiff's messenger, testified on direct
examination that on February 23, 1993, he served a letter of Engr. Jose Reyes, the
Technical Assistant to the Mayor on Infrastructure, to Lorenzo Ching Cuanco at
his store at No. 18 Alkalde Jose Street, Kapasigan, Pasig. A lady received the same
and brought it inside the store. When she returned the letter to him, it already
bore the signature of Luz Bernarte. He identified a photocopy of the letter as
similar to the one he served at the store. On cross-examination, he admitted that
he never met Luz Bernarte. 13
Edgardo del Rosario, a resident of Sto. Tomas Bukid since 1982 declared that he
would pass through a wooden bridge to go to E. R. Santos Street. At times, the
bridge would be slippery and many had met accidents while walking along the
bridge. Because of this, they requested Mayor Vicente Eusebio to construct a road
therein. He attested that after the construction of the cemented access road, the
residents had water and electricity. 14
Augusto Paz of the City Engineer's Office testified that, sometime in 1992, the
plaintiff constructed a road perpendicular from E. R. Santos Street to Sto. Tomas
Bukid; he was the Project Engineer for the said undertaking. Before the
construction of the road, the lot was raw and they had to put filling materials so
that vehicles could use it. According to him, the length of the road which they
constructed was 70 meters long and 3 meters wide so that a fire truck could pass
through. He averred that there is no other road through which a fire truck could
pass to go to Sto. Tomas Bukid. 15
Manuel Tembrevilla, the Fire Marshall, averred that he had seen the new road,
that is, Damayan Street, and found that a fire truck could pass through it. He
estimated the houses in the area to be around 300 to 400. Tembrevilla also stated
that Damayan Street is the only road in the area. 16
Finally, Bonifacio Maceda, Jr., Tax Mapper IV, testified that, according to their
records, JILCSFI became the owner of the property only on January 13, 1994. 17
The plaintiff offered in evidence a photocopy of the letter of Engr. Jose Reyes
addressed to Lorenzo Ching Cuanco to prove that the plaintiff made a definite and
15
valid offer to acquire the property to the co-owners. However, the RTC rejected
the same letter for being a mere photocopy. 18
For the defendant-intervenor, Normita del Rosario, owner of the property located
across the subject property, testified that there are other roads leading to E. R.
Santos Street. She asserted that only about ten houses of the urban poor are using
the new road because the other residents are using an alternative right-of-way.
She averred that she did not actually occupy her property; but there were times
that she visited it. 19
Danilo Caballero averred that he had been a resident of Sto. Tomas Bukid for
seven years. From his house, he could use three streets to go to E. R. Santos Street,
namely, Catalina Street, Damayan Street and Bagong Taon Street. On cross-
examination, he admitted that no vehicle could enter Sto. Tomas Bukid except
through the newly constructed Damayan Street. 20
Eduardo Villanueva, Chairman of the Board of Trustees and President of JILCSFI,
testified that the parcel of land was purchased for purposes of constructing a
school building and a church as worship center. He averred that the realization of
these projects was delayed due to the passing of the ordinance for expropriation.
21
The intervenor adduced documentary evidence that on February 27, 1993,
Lorenzo Ching Cuanco and the co-owners agreed to sell their property covered by
TCT No. PT-66585 for P1,719,000.00. 22 It paid a down payment of P1,000,000.00
for the property. After payment of the total purchase price, the Ching Cuancos
executed a Deed of Absolute Sale 23 over the property on December 13, 1993.
On December 21, 1993, TCT No. PT-92579 was issued in the name of JILCSFI. 24 It
declared the property for taxation purposes under its name. 25
On September 3, 1997, the RTC issued an Order in favor of the plaintiff, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing and in accordance with Section 4, Rule 67
of the Revised Rules of Court, the Court Resolves to DECLARE the plaintiff as
having a lawful right to take the property in question for purposes for which the
same is expropriated.
The plaintiff and intervenor are hereby directed to submit at least two (2) names
of their recommended commissioners for the determination of just compensation
within ten (10) days from receipt hereof.
SO ORDERED. 26
The RTC held that, as gleaned from the declaration in Ordinance No. 21, there was
substantial compliance with the definite and valid offer requirement of Section 19
of R.A. No. 7160, and that the expropriated portion is the most convenient access
to the interior of Sto. Tomas Bukid.
Dissatisfied, JILCSFI elevated the case to the CA on the following assignment of
errors:
First Assignment of Error
THE LOWER COURT SERIOUS[LY] ERRED WHEN IT RULED THAT PLAINTIFF-
APPELLEE SUBSTANTIALLY COMPLIED WITH THE LAW WHEN IT EXPROPRIATED
JIL'S PROPERTY TO BE USED AS A RIGHT OF WAY.
Second Assignment of Error
THE LOWER COURT ERRED IN DISREGARDING JIL'S EVIDENCE PROVING THAT
THERE WAS NO PUBLIC NECESSITY TO WARRANT THE EXPROPRIATION OF THE
SUBJECT PROPERTY. 27
The Court of Appeals' Decision
In a Decision dated March 13, 2001, the CA affirmed the order of the RTC. 28 The
CA agreed with the trial court that the plaintiff substantially complied with Section
19 of R.A. No. 7160, particularly the requirement that a valid and definite offer
must be made to the owner. The CA declared that the letter of Engr. Reyes,
inviting Lorenzo Ching Cuanco to a conference to discuss with him the road
project and the price of the lot, was a substantial compliance with the "valid and
definite offer" requirement under said Section 19. In addition, the CA noted that
there was also constructive notice to the defendants of the expropriation
proceedings since a notice of lis pendens was annotated at the dorsal portion of
TCT No. PT-92579 on November 26, 1993. 29
Finally, the CA upheld the public necessity for the subject property based on the
findings of the trial court that the portion of the property sought to be
expropriated appears to be, not only the most convenient access to the interior
of Sto. Tomas Bukid, but also an easy path for vehicles entering the area,
particularly fire trucks. Moreover, the CA took into consideration the provision of
Article 33 of the Rules and Regulations Implementing the Local Government Code,
which regards the "construction or extension of roads, streets, sidewalks" as
public use, purpose or welfare. 30
On April 6, 2001, JILCSFI filed a motion for reconsideration of the said decision
alleging that the CA erred in relying on the photocopy of Engr. Reyes' letter to
Lorenzo Ching Cuanco because the same was not admitted in evidence by the trial
court for being a mere photocopy. It also contended that the CA erred in
concluding that constructive notice of the expropriation proceeding, in the form
of annotation of the notice of lis pendens, could be considered as a substantial
compliance with the requirement under Section 19 of the Local Government Code
for a valid and definite offer. JILCSFI also averred that no inspection was ever
ordered by the trial court to be conducted on the property, and, if there was one,
it had the right to be present thereat since an inspection is considered to be part
of the trial of the case. 31
The CA denied the motion for reconsideration for lack of merit. It held that it was
not precluded from considering the photocopy 32 of the letter, notwithstanding
that the same was excluded by the trial court, since the fact of its existence was
duly established by corroborative evidence. This corroborative evidence consisted
of the testimony of the plaintiff's messenger that he personally served the letter
to Lorenzo Ching Cuanco, and Municipal Ordinance No. 21 which expressly stated
that the property owners were already notified of the expropriation proceeding.
The CA noted that JILCSFI failed to adduce controverting evidence, thus the
presumption of regularity was not overcome. 33
The Present Petition
In this petition, petitioner JILCSFI raises the following issues: (1) whether the
respondent complied with the requirement, under Section 19 of the Local
Government Code, of a valid and definite offer to acquire the property prior to
the filing of the complaint; (2) whether its property which is already intended to
be used for public purposes may still be expropriated by the respondent; and (3)
whether the requisites for an easement for right-of-way under Articles 649 to 657
of the New Civil Code may be dispensed with. THESAD
The petitioner stresses that the law explicitly requires that a valid and definite
offer be made to the owner of the property and that such offer was not accepted.
It argues that, in this case, there was no evidence to show that such offer has been
made either to the previous owner or the petitioner, the present owner. The
petitioner contends that the photocopy of the letter of Engr. Reyes, notifying
Lorenzo Ching Cuanco of the respondent's intention to construct a road on its
property, cannot be considered because the trial court did not admit it in
evidence. And assuming that such letter is admissible in evidence, it would not
prove that the offer has been made to the previous owner because mere notice
of intent to purchase is not equivalent to an offer to purchase. The petitioner
further argues that the offer should be made to the proper party, that is, to the
owner of the property. It noted that the records in this case show that as of
February 1993, it was already the owner of the property. Assuming, therefore,
that there was an offer to purchase the property, the same should have been
addressed to the petitioner, as present owner. 34
The petitioner maintains that the power of eminent domain must be strictly
construed since its exercise is necessarily in derogation of the right to property
ownership. All the requirements of the enabling law must, therefore, be strictly
complied with. Compliance with such requirements cannot be presumed but must
be proved by the local government exercising the power. The petitioner adds that
the local government should, likewise, comply with the requirements for an
easement of right-of-way; hence, the road must be established at a point least
prejudicial to the owner of the property. Finally, the petitioner argues that, if the
property is already devoted to or intended to be devoted to another public use,
its expropriation should not be allowed. 35
16
For its part, the respondent avers that the CA already squarely resolved the issues
raised in this petition, and the petitioner failed to show valid and compelling
reason to reverse the CA's findings. Moreover, it is not the function of the
Supreme Court to weigh the evidence on factual issues all over again. 36 The
respondent contends that the Ching Cuancos were deemed to have admitted that
an offer to purchase has been made and that they refused to accept such offer
considering their failure to specifically deny such allegation in the complaint. In
light of such admission, the exclusion of the photocopy of the letter of Engr.
Reyes, therefore, is no longer significant. 37
The Ruling of the Court
The petition is meritorious.
At the outset, it must be stressed that only questions of law may be raised by the
parties and passed upon by the Supreme Court in petitions for review on
certiorari. 38 Findings of fact of the CA, affirming those of the trial court, are final
and conclusive and may not be reviewed on appeal. 39
Nonetheless, where it is shown that the conclusion is a finding grounded on
speculations, surmises or conjectures or where the judgment is based on
misapprehension of facts, the Supreme Court may reexamine the evidence on
record. 40
Eminent Domain: Nature and Scope
The right of eminent domain is usually understood to be an ultimate right of the
sovereign power to appropriate any property within its territorial sovereignty for
a public purpose. The nature and scope of such power has been comprehensively
described as follows:
. . . It is an indispensable attribute of sovereignty; a power grounded in the primary
duty of government to serve the common need and advance the general welfare.
Thus, the right of eminent domain appertains to every independent government
without the necessity for constitutional recognition. The provisions found in
modern constitutions of civilized countries relating to the taking of property for
the public use do not by implication grant the power to the government, but limit
the power which would, otherwise, be without limit. Thus, our own Constitution
provides that "[p]rivate property shall not be taken for public use without just
compensation." Furthermore, the due process and equal protection clauses act
as additional safeguards against the arbitrary exercise of this governmental
power. 41
Strict Construction and Burden of Proof
The exercise of the right of eminent domain, whether directly by the State or by
its authorized agents, is necessarily in derogation of private rights. 42 It is one of
the harshest proceedings known to the law. Consequently, when the sovereign
delegates the power to a political unit or agency, a strict construction will be given
against the agency asserting the power. 43 The authority to condemn is to be
strictly construed in favor of the owner and against the condemnor. 44 When the
power is granted, the extent to which it may be exercised is limited to the express
terms or clear implication of the statute in which the grant is contained. 45
Corollarily, the respondent, which is the condemnor, has the burden of proving
all the essentials necessary to show the right of condemnation. 46 It has the
burden of proof to establish that it has complied with all the requirements
provided by law for the valid exercise of the power of eminent domain.
The grant of the power of eminent domain to local government units is grounded
on Section 19 of R.A. No. 7160 which reads:
SEC. 19. Eminent Domain. — A local government unit may, through its chief
executive and acting pursuant to an ordinance, exercise the power of eminent
domain for public use, or purpose, or welfare for the benefit of the poor and the
landless, upon payment of just compensation, pursuant to the provisions of the
Constitution and pertinent laws; Provided, however, That the power of eminent
domain may not be exercised unless a valid and definite offer has been previously
made to the owner, and such offer was not accepted: Provided, further, That the
local government unit may immediately take possession of the property upon the
filing of the expropriation proceedings and upon making a deposit with the proper
court of at least fifteen percent (15%) of the fair market value of the property
based on the current tax declaration of the property to be expropriated: Provided,
finally, That the amount to be paid for the expropriated property shall be
determined by the proper court based on the fair market value at the time of the
taking of the property.

The Court declared that the following requisites for the valid exercise of the power
of eminent domain by a local government unit must be complied with:
1. An ordinance is enacted by the local legislative council authorizing the local
chief executive, in behalf of the local government unit, to exercise the power of
eminent domain or pursue expropriation proceedings over a particular private
property. IDESTH
2. The power of eminent domain is exercised for public use, purpose or welfare,
or for the benefit of the poor and the landless.
3. There is payment of just compensation, as required under Section 9, Article III
of the Constitution, and other pertinent laws.
4. A valid and definite offer has been previously made to the owner of the
property sought to be expropriated, but said offer was not accepted. 47
Valid and Definite Offer
Article 35 of the Rules and Regulations Implementing the Local Government Code
provides:
ARTICLE 35. Offer to Buy and Contract of Sale. — (a) The offer to buy private
property for public use or purpose shall be in writing. It shall specify the property
sought to be acquired, the reasons for its acquisition, and the price offered.
(b) If the owner or owners accept the offer in its entirety, a contract of sale shall
be executed and payment forthwith made.
(c) If the owner or owners are willing to sell their property but at a price higher
than that offered to them, the local chief executive shall call them to a conference
for the purpose of reaching an agreement on the selling price. The chairman of
the appropriation or finance committee of the sanggunian, or in his absence, any
member of the sanggunian duly chosen as its representative, shall participate in
the conference. When an agreement is reached by the parties, a contract of sale
shall be drawn and executed.
(d) The contract of sale shall be supported by the following documents:
(1) Resolution of the sanggunian authorizing the local chief executive to enter into
a contract of sale. The resolution shall specify the terms and conditions to be
embodied in the contract;
(2) Ordinance appropriating the amount specified in the contract; and
(3) Certification of the local treasurer as to availability of funds together with a
statement that such fund shall not be disbursed or spent for any purpose other
than to pay for the purchase of the property involved.
The respondent was burdened to prove the mandatory requirement of a valid and
definite offer to the owner of the property before filing its complaint and the
rejection thereof by the latter. 48 It is incumbent upon the condemnor to exhaust
all reasonable efforts to obtain the land it desires by agreement. 49 Failure to
prove compliance with the mandatory requirement will result in the dismissal of
the complaint. 50
An offer is a unilateral proposition which one party makes to the other for the
celebration of a contract. 51 It creates a power of acceptance permitting the
offeree, by accepting the offer, to transform the offeror's promise into a
contractual obligation. 52 Corollarily, the offer must be complete, indicating with
sufficient clearness the kind of contract intended and definitely stating the
essential conditions of the proposed contract. 53 An offer would require, among
other things, a clear certainty on both the object and the cause or consideration
of the envisioned contract. 54
The purpose of the requirement of a valid and definite offer to be first made to
the owner is to encourage settlements and voluntary acquisition of property
needed for public purposes in order to avoid the expense and delay of a court
action. 55 The law is designed to give to the owner the opportunity to sell his land
without the expense and inconvenience of a protracted and expensive litigation.
This is a substantial right which should be protected in every instance. 56 It
17
encourages acquisition without litigation and spares not only the landowner but
also the condemnor, the expenses and delays of litigation. It permits the
landowner to receive full compensation, and the entity acquiring the property,
immediate use and enjoyment of the property. A reasonable offer in good faith,
not merely perfunctory or pro forma offer, to acquire the property for a
reasonable price must be made to the owner or his privy. 57 A single bona fide
offer that is rejected by the owner will suffice.
The expropriating authority is burdened to make known its definite and valid offer
to all the owners of the property. However, it has a right to rely on what appears
in the certificate of title covering the land to be expropriated. Hence, it is required
to make its offer only to the registered owners of the property. After all, it is well-
settled that persons dealing with property covered by a Torrens certificate of title
are not required to go beyond what appears on its face. 58
In the present case, the respondent failed to prove that before it filed its
complaint, it made a written definite and valid offer to acquire the property for
public use as an access road. The only evidence adduced by the respondent to
prove its compliance with Section 19 of the Local Government Code is the
photocopy of the letter purportedly bearing the signature of Engr. Jose Reyes, to
only one of the co-owners, Lorenzo Ching Cuanco. The letter reads:
MR. LORENZO CHING CUANCO
18 Alcalde Jose Street
Capasigan, Pasig
Metro Manila
Dear Mr. Cuanco:
This refers to your parcel of land located along E. Santos Street, Barangay Palatiw,
Pasig, Metro Manila embraced in and covered by TCT No. 66585, a portion of
which with an area of fifty-one (51) square meters is needed by the Municipal
Government of Pasig for conversion into a road-right of way for the benefit of
several residents living in the vicinity of your property. Attached herewith is the
sketch plan for your information.
In this connection, may we respectfully request your presence in our office to
discuss this project and the price that may be mutually agreed upon by you and
the Municipality of Pasig.
Thank you.
Very truly yours,
(Sgd.)
ENGR. JOSE L. REYES
Technical Asst. to the Mayor
on Infrastructure 59
It bears stressing, however, that the respondent offered the letter only to prove
its desire or intent to acquire the property for a right-of-way. 60 The document
was not offered to prove that the respondent made a definite and valid offer to
acquire the property. Moreover, the RTC rejected the document because the
respondent failed to adduce in evidence the original copy thereof. 61 The
respondent, likewise, failed to adduce evidence that copies of the letter were sent
to and received by all the co-owners of the property, namely, Lorenzo Ching
Cuanco, Victor Ching Cuanco and Ernesto Kho.
The respondent sought to prove, through the testimony of its messenger, Rolando
Togonon, that Lorenzo Ching Cuanco received the original of the said letter. But
Togonon testified that he merely gave the letter to a lady, whom he failed to
identify. He stated that the lady went inside the store of Lorenzo Ching Cuanco,
and later gave the letter back to him bearing the signature purportedly of one Luz
Bernarte. However, Togonon admitted, on cross-examination, that he did not see
Bernarte affixing her signature on the letter. Togonon also declared that he did
not know and had never met Lorenzo Ching Cuanco and Bernarte:
Q And after you received this letter from that lady, what did you do afterwards?
A I brought it with me, that letter, and then I went to Caruncho.

Q So, [M]r. Witness, you are telling this Honorable Court that this letter intended
to Mr. Lorenzo was served at Pasig Trading which was situated at No. 18 Alkalde
Jose Street on February 23, 1993?
A Yes, Ma'am.
ATTY. TAN:
That is all for the witness, Your Honor.
COURT:
Do you have any cross-examination?
ATTY. JOLO:
Just a few cross, Your Honor, please. With the kind permission of the Honorable
Court.
COURT:
Proceed. AcHSEa
CROSS-EXAMINATION
BY ATTY. JOLO:
Q Mr. Witness, do you know Mr. Lorenzo Ching [Cuanco]
A I do not know him.
Q As a matter of fact, you have not seen him even once, isn't not (sic)?
A Yes, Sir.
Q This Luz Bernarte, do you know her?
A I do not know her.
Q As a matter of fact, you did not see Mrs. Bernarte even once?
A That is correct.
Q And as a matter of fact, [M]r. Witness, you did not see Mrs. Luz Bernarte affixing
her signature on the bottom portion of this demand letter, marked as Exh. "C-2"?
A Yes, Sir. 62
Even if the letter was, indeed, received by the co-owners, the letter is not a valid
and definite offer to purchase a specific portion of the property for a price certain.
It is merely an invitation for only one of the co-owners, Lorenzo Ching Cuanco, to
a conference to discuss the project and the price that may be mutually acceptable
to both parties.
There is no legal and factual basis to the CA's ruling that the annotation of a notice
of lis pendens at the dorsal portion of petitioner's TCT No. PT-92579 is a
substantial compliance with the requisite offer. A notice of lis pendens is a notice
to the whole world of the pendency of an action involving the title to or
possession of real property and a warning that those who acquire an interest in
the property do so at their own risk and that they gamble on the result of the
litigation over it. 63 Moreover, the lis pendens was annotated at the dorsal
portion of the title only on November 26, 1993, long after the complaint had been
filed in the RTC against the Ching Cuancos.
Neither is the declaration in one of the whereas clauses of the ordinance that "the
property owners were already notified by the municipality of the intent to
purchase the same for public use as a municipal road," a substantial compliance
with the requirement of a valid and definite offer under Section 19 of R.A. No.
7160. Presumably, the Sangguniang Bayan relied on the erroneous premise that
the letter of Engr. Reyes reached the co-owners of the property. In the absence
of competent evidence that, indeed, the respondent made a definite and valid
18
offer to all the co-owners of the property, aside from the letter of Engr. Reyes, the
declaration in the ordinance is not a compliance with Section 19 of R.A. No. 7160.
The respondent contends, however, that the Ching Cuancos, impliedly admitted
the allegation in its complaint that an offer to purchase the property was made to
them and that they refused to accept the offer by their failure to specifically deny
such allegation in their answer. This contention is wrong. As gleaned from their
answer to the complaint, the Ching Cuancos specifically denied such allegation for
want of sufficient knowledge to form a belief as to its correctness. Under Section
10, 64 Rule 8 of the Rules of Court, such form of denial, although not specific, is
sufficient.
Public Necessity
We reject the contention of the petitioner that its property can no longer be
expropriated by the respondent because it is intended for the construction of a
place for religious worship and a school for its members. As aptly explained by
this Court in Manosca v. Court of Appeals, 65 thus:
It has been explained as early as Seña v. Manila Railroad Co., that:
. . . A historical research discloses the meaning of the term "public use" to be one
of constant growth. As society advances, its demands upon the individual
increases and each demand is a new use to which the resources of the individual
may be devoted. . . . for "whatever is beneficially employed for the community is
a public use."
Chief Justice Enrique M. Fernando states:
The taking to be valid must be for public use. There was a time when it was felt
that a literal meaning should be attached to such a requirement. Whatever
project is undertaken must be for the public to enjoy, as in the case of streets or
parks. Otherwise, expropriation is not allowable. It is not so any more. As long as
the purpose of the taking is public, then the power of eminent domain comes into
play. As just noted, the constitution in at least two cases, to remove any doubt,
determines what is public use. One is the expropriation of lands to be subdivided
into small lots for resale at cost to individuals. The other is the transfer, through
the exercise of this power, of utilities and other private enterprise to the
government. It is accurate to state then that at present whatever may be
beneficially employed for the general welfare satisfies the requirements of public
use.
Chief Justice Fernando, writing the ponencia in J.M. Tuason & Co. vs. Land Tenure
Administration, has viewed the Constitution a dynamic instrument and one that
"is not to be construed narrowly or pedantically so as to enable it to meet
adequately whatever problems the future has in store." Fr. Joaquin Bernas, a
noted constitutionalist himself, has aptly observed that what, in fact, has
ultimately emerged is a concept of public use which is just as broad as "public
welfare."
Petitioners ask: But "(w)hat is the so-called unusual interest that the
expropriation of (Felix Manalo's) birthplace become so vital as to be a public use
appropriate for the exercise of the power of eminent domain" when only
members of the Iglesia ni Cristo would benefit? This attempt to give some
religious perspective to the case deserves little consideration, for what should be
significant is the principal objective of, not the casual consequences that might
follow from, the exercise of the power. The purpose in setting up the marker is
essentially to recognize the distinctive contribution of the late Felix Manalo to the
culture of the Philippines, rather than to commemorate his founding and
leadership of the Iglesia ni Cristo. The practical reality that greater benefit may be
derived by members of the Iglesia ni Cristo than by most others could well be true
but such a peculiar advantage still remains to be merely incidental and secondary
in nature. Indeed, that only a few would actually benefit from the expropriation
of property, does not necessarily diminish the essence and character of public
use. AHaDSI
The petitioner asserts that the respondent must comply with the requirements
for the establishment of an easement of right-of-way, more specifically, the road
must be constructed at the point least prejudicial to the servient state, and that
there must be no adequate outlet to a public highway. The petitioner asserts that
the portion of the lot sought to be expropriated is located at the middle portion
of the petitioner's entire parcel of land, thereby splitting the lot into two halves,
and making it impossible for the petitioner to put up its school building and
worship center.
The subject property is expropriated for the purpose of constructing a road. The
respondent is not mandated to comply with the essential requisites for an
easement of right-of-way under the New Civil Code. Case law has it that in the
absence of legislative restriction, the grantee of the power of eminent domain
may determine the location and route of the land to be taken 66 unless such
determination is capricious and wantonly injurious. 67 Expropriation is justified
so long as it is for the public good and there is genuine necessity of public
character. 68 Government may not capriciously choose what private property
should be taken. 69
The respondent has demonstrated the necessity for constructing a road from E.
R. Santos Street to Sto. Tomas Bukid. The witnesses, who were residents of Sto.
Tomas Bukid, testified that although there were other ways through which one
can enter the vicinity, no vehicle, however, especially fire trucks, could enter the
area except through the newly constructed Damayan Street. This is more than
sufficient to establish that there is a genuine necessity for the construction of a
road in the area. After all, absolute necessity is not required, only reasonable and
practical necessity will suffice. 70
Nonetheless, the respondent failed to show the necessity for constructing the
road particularly in the petitioner's property and not elsewhere. 71 We note that
the whereas clause of the ordinance states that the 51-square meter lot is the
shortest and most suitable access road to connect Sto. Tomas Bukid to E. R. Santos
Street. The respondent's complaint also alleged that the said portion of the
petitioner's lot has been surveyed as the best possible ingress and egress.
However, the respondent failed to adduce a preponderance of evidence to prove
its claims.
On this point, the trial court made the following findings:
. . . The contention of the defendants that there is an existing alley that can serve
the purpose of the expropriator is not accurate. An inspection of the vicinity
reveals that the alley being referred to by the defendants actually passes thru
Bagong Taon St. but only about one-half (1/2) of its entire length is passable by
vehicle and the other half is merely a foot-path. It would be more inconvenient to
widen the alley considering that its sides are occupied by permanent structures
and its length from the municipal road to the area sought to be served by the
expropriation is considerably longer than the proposed access road. The area to
be served by the access road is composed of compact wooden houses and literally
a slum area. As a result of the expropriation of the 51-square meter portion of the
property of the intervenor, a 3-meter wide road open to the public is created. This
portion of the property of the intervenor is the most convenient access to the
interior of Sto. Tomas Bukid since it is not only a short cut to the interior of the
Sto. Tomas Bukid but also an easy path for vehicles entering the area, not to
mention the 3-meter wide road requirement of the Fire Code. 72
However, as correctly pointed out by the petitioner, there is no showing in the
record that an ocular inspection was conducted during the trial. If, at all, the trial
court conducted an ocular inspection of the subject property during the trial, the
petitioner was not notified thereof. The petitioner was, therefore, deprived of its
right to due process. It bears stressing that an ocular inspection is part of the trial
as evidence is thereby received and the parties are entitled to be present at any
stage of the trial. 73 Consequently, where, as in this case, the petitioner was not
notified of any ocular inspection of the property, any factual finding of the court
based on the said inspection has no probative weight. The findings of the trial
court based on the conduct of the ocular inspection must, therefore, be rejected.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision and
Resolution of the Court of Appeals are REVERSED AND SET ASIDE. The RTC is
ordered to dismiss the complaint of the respondent without prejudice to the
refiling thereof.
SO ORDERED.
Puno, Austria-Martinez, Tinga and Chico-Nazario, JJ., concur.
THIRD DIVISION
[G.R. No. 75905. October 12, 1987.]
19
REMIGIO O. RAMOS, SR., petitioner, vs. GATCHALIAN REALTY, INC., EDUARDO
ASPREC, ENELDA ASPREC, ERNESTO ASPREC, and COURT OF APPEALS,
respondents.
DECISION
GUTIERREZ, JR., J p:
In this petition for review on certiorari, the petitioner assails the decision of the
Court of Appeals dated August 29, 1986 which affirmed the November 14, 1984
order of the Regional Trial Court, Branch CXI at Pasay City dismissing the
petitioner's civil action for a right of way with prayer for preliminary injunction.
LexLib
Petitioner Ramos is the owner of a house and lot containing an area of 901 square
meters covered by Transfer Certificate of Title No. 14927 situated at Barrio San
Dionisio, Parañaque, Metro Manila. The lot was acquired by the petitioner from
Sobrina Rodriguez Lombos Subdivision. In the subdivision survey plan of Lot 4133-
G, (LRC) PSD-172544, the lot is more particularly described as Lot 4133-G-11
(Exhibits 1 and 1-A"). Two road lots abut petitioner's property namely lot 4133-G-
12 with an area of 2,160 square meters clearly appearing as a proposed road in
the Lombos subdivision plan and Lot 4135 of the Parañaque Cadastre now known
as Palanyag Road but more commonly referred to as Gatchalian Avenue. LLpr
Respondents Asprec own Lot 4135. Gatchalian Avenue is alongside Lot 4135.
Respondent Gatchalian Realty was granted the road right of way and drainage
along Lot 4135 to service the Gatchalian and Asprec subdivisions, by the
respondent Asprecs.
The records of this case disclose that on April 30, 1981, a complaint for an
easement of a right of way with preliminary mandatory injunction was filed by
Ramos against the private respondents. Among the allegations in the complaint
are:
". . . that he (referring to the petitioner) constructed his house at 27 Gatchalian
Avenue (also known as Palanyag Road), Parañaque, and has since resided therein
with his family from 1977 up to the present; that during construction of the house,
Gatchalian Realty, Inc. built a 7-8 feet high concrete wall right infront of
appellant's premises, blocking his entrance/exit to Gatchalian Road, the nearest,
most convenient and adequate entrance/exit to the public road or highway,
formerly Sucat Road but now known as Dr. A. Santos Avenue, Parañaque; that this
house and lot is only about 100 meters from Sucat Road passing thru Gatchalian
Avenue; that prior to this, appellant and his counsel addressed separate
request/demand letters (Exh. A and Annex B) to defendant company to allow him
to exercise a right of way on the subject premises; that in September 1977, a
meeting/conference was held between appellant and his counsel on one hand
and Mr. Roberto Gatchalian and counsel on the other, during which defendant
Corporation manifested its conformity to grant appellant the requested right of
way upon payment of proper indemnity, with the request that appellant inform
defendants Asprec of their aforesaid agreement; that consequently, appellant
wrote Mr. Cleto Asprec on September 16, 1977 (Exh. D); that with the
construction of the 7-8 feet concrete wall appellant and his family have been
constrained to pass through the back portion of their lot bounded by other lots
belonging to different owners, which is grassy and cogonal as temporary
ingress/egress with great inconvenience and hardship, and this becomes all the
more pronounced during the rainy season due to flood and mud (Exhs. B-1, B-1-
A, B-2; B-2-A, B-3, B-3-A, B-3-B and B-4); and, lastly, that the aforesaid concrete
wall is dangerously leaning towards appellant's premises posing great danger or
hazard." (Court of Appeals Decision, p. 3, Rollo, p. 39).
On May 20, 1981, the respondent corporation filed a motion to dismiss on
grounds of lack of cause of action and bar by prior judgment alleging that the
complaint was merely a reproduction of that filed on October 26, 1972 in Civil
Case No. 5930-P which was dismissed on October 30, 1980 for failure to prosecute
within a reasonable length of time. Respondents Asprec later joined the
respondent company in its motion to dismiss and adopted the grounds and
arguments stated therein.
On November 20, 1981, after the petitioner had filed his opposition to the above
motions, the lower court issued its order denying the motion to dismiss on the
ground that the order dismissing the earlier case was not an adjudication on the
merits.
On November 26, 1981, the petitioner filed an urgent ex-parte motion for the
issuance of a preliminary mandatory injunction as well as a preliminary
prohibitory injunction. On the same day, the lower court set the motion for
hearing on December 1, 1981, later reset to December 10, 1981, and ordered
that:
"In the meantime, pending determination of the application or the merits and in
order that the reliefs sought therein may not be rendered moot and academic,
the defendants and all persons acting upon their orders are hereby temporarily
enjoined from building, constructing and/or erecting a wall, fence or any
enclosure adjoining or abutting plaintiff's premises and/or from restraining,
preventing or prohibiting the plaintiff, his family or persons residing in his
premises as well as any person/s who may have any dealing or business with them
from using, passing and/or traversing the said Gatchalian Avenue in going to or
returning from the plaintiff's premises and in going to or returning from Sucat
Road via Gatchalian Avenue, until further orders from this Court. (Order dated
November 26, 1981, Records, p. 66).
On December 1, 1981, Gatchalian Realty filed its answer and averred, among
others, that:
xxx xxx xxx
"Defendant Corporation has never entered into a verbal agreement with plaintiff
to grant the latter a road right of way;
xxx xxx xxx
"The so-called Gatchalian Avenue or Palanyag Road is not a public road but a
private street established and constructed by the defendant Corporation
intended for the sole and exclusive use of its residents and lot buyers of its
subdivisions, as well as of the subdivisions owned and operated by the various
naked owners of the different portions constituting the entire length and breadth
of said street;
"If plaintiff's property referred to in the complaint is Lot No. 4133-G-11 (LRC) Psd-
229001 (sic), then a grant of a right of way to plaintiff is not a legal necessity,
because such lot has an existing road right of way, more particularly Lot 4133-G-
12, towards Dr. Arcadio Santos Avenue (Sukat Road);
xxx xxx xxx
"The opening of Gatchalian Avenue to the property of plaintiff will unduly cause
great prejudice to defendant Corporation as it can no longer effectively regulate
the use of the said private road; . . .
"Assuming, though not admitting, that plaintiff may be granted a right of way, still
the reasonable compensation for such grant would be some P800,000.00, as such
portion of Gatchalian Avenue consists of some 2,000 square meters of prime and
valuable property which could readily command a market value of P400.00 per
square meter; moreover, plaintiff still has to shoulder his proportionate share of
the expenses and upkeep of such street and the real estate taxes imposed
thereon." (Answer of Gatchalian Realty, Inc., Records, pp. 81-82).
On December 2, 1981, respondent Asprec filed their answer which basically
contained the same averments as that of the realty company.
At the hearing of the petitioner's application for issuance of a writ of preliminary
injunction to compel the private respondents to remove the wall constructed
right in front of the petitioner's premises barring him access to Gatchalian
Avenue, both parties presented oral and documentary evidence to support their
respective positions. After the hearing, the lower court issued the following order:
"Plaintiff is given fifteen (15) days to file a memorandum and the defendant is
given another fifteen days from receipt thereof to file a reply, after which the case
shall be deemed submitted for resolution. So ordered." (TSN, December 10, 1981,
p. 57)
After compliance by both parties with the above order, the lower court, on July 9,
1982, rendered a decision the dispositive part of which reads:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against
the defendants ordering the latter to grant the former a right of way through
Palanyag Road to and from Don Arcadio Santos Avenue and to and from this
residence, upon payment by the plaintiff to the defendants Asprecs the sum of
P5,000 as indemnity therefor and under the following terms and conditions to
20
wit: (1) the easement created shall be only in favor of the plaintiff, members of
his family and person or persons dealing with them; and (2) the opening to be
created through the concrete wall separating plaintiff's residence and Palanyag
Road shall only be three (3) meters wide and shall be provided by an iron gate by
the plaintiff all at the expense of the plaintiff. Without pronouncement as to costs
and damages." (Rollo, p. 30)
Thereafter, the respondent company filed a motion to set aside and/or reconsider
the lower court's decision for being premature since only the application for the
writ of injunction was heard and submitted for resolution and not the entire case.
Respondents Asprec, likewise, filed a motion for reconsideration mainly on the
ground that the lower court's grant of a right of way through Gatchalian Avenue
in petitioner's favor would be in derogation of the "Contract of Easement of Road
Right-of-Way and of Drainage" executed between them and Gatchalian Realty.
cdphil
In his opposition to both motions, the petitioner argued that on the basis of the
transcript of stenographic notes taken on December 10, 1981, it was clear that
both parties submitted the entire case for resolution inasmuch as the pieces of
evidence for the injunction and for the main case were the same and there was
nothing left to be presented. Thus, in effect, the petitioner contended that the
lower court's decision dated July 9, 1982 was an adjudication on the merits.
On July 8, 1983, the lower court under a new judge by virtue of the reorganization
of the judiciary, issued an order setting aside and vacating its previous decision
dated July 9, 1982 on the ground that the same was "rendered prematurely as the
defendants had not presented their evidence on the main evidence."
After the petitioner had rested his case, the respondent company filed a motion
to dismiss based on the insufficiency of the evidence adduced by the petitioner.
An opposition to said motion, was, thereafter, filed by the petitioner.
On November 14, 1984, the lower court, acting on the respondent company's
motion to dismiss, issued an order with the following tenor:
"WHEREFORE, finding the motion to dismiss of defendant corporation Gatchalian
Realty, Inc. to be impressed with merit, the same is hereby granted. For
insufficiency of evidence, plaintiff's complaint is hereby dismissed, without
pronouncement as to costs." (Rollo, p. 34)
The Court of Appeals on August 29, 1986, found that the petitioner failed to
establish the existence of the preconditions in order that he could legally be
entitled to an easement of a right of way. It affirmed the lower court's order dated
November 14, 1984 in all respects, with costs against the petitioner.
Hence, this petition which presents the following assignment of errors:
I
PUBLIC RESPONDENT ERRED IN AFFIRMING IN TOTO THE ORDER OF DISMISSAL
OF THE TRIAL COURT IN ALL RESPECTS WITH COSTS AGAINST THE PETITIONER;
II
PUBLIC RESPONDENT ERRED IN ITS DECISION TO THE EFFECT THAT PETITIONER
HAS NOT SUFFICIENTLY MET THE REQUIREMENTS OF THE LAW AND IN FAILING
TO PROVE HIS RIGHT OF WAY THROUGH GATCHALIAN AVENUE OR PALANYAG
ROAD AGAINST THE RESPONDENTS HEREIN;
III
PUBLIC RESPONDENT ERRED IN FAILING TO SET ASIDE THE ORDER OF THE TRIAL
COURT, AND NOT ADOPTING THE DECISION OF THE TRIAL COURT DATED JULY 9,
1982 GRANTING TO PETITIONER A RIGHT OF WAY IN THE SUBJECT PREMISES.
(Rollo, pp. 14-15).
These assigned errors center on the issue of whether or not the petitioner has
successfully shown that all the requisites necessary for the grant of an easement
of a right of way in his favor are present.
An easement or servitude is an encumbrance imposed upon an immovable for the
benefit of another immovable belonging to a different owner as defined in Article
613 of the Civil Code. It is established either by law, in which case it is called legal,
or by the will of the parties, in which event it is a voluntary easement. (See Article
619, Civil Code of the Philippines; City of Manila v. Entote, 57 SCRA 497, 503).
Since there is no agreement between the contending parties in this case granting
a right of way by one in favor of the other, the establishment of a voluntary
easement between the petitioner and the respondent company and/or the other
private respondents is ruled out. What is left to examine is whether or not the
petitioner is entitled to a legal or compulsory easement of a right of way.
In the case of Bacolod-Murcia Milling Company, Inc. v. Capitol Subdivision, Inc., et
al. (17 SCRA 731, 735-6), we held that:
Association, Inc. v. Court of Appeals, et al., G.R. No. 75786, promulgated on
August 31, 1987; Regalario v. Northwest Finance Corporation, 117 SCRA 45; Agton
v. Court of Appeals, 113 SCRA 322). cdrep
WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED for lack
of merit. The questioned decision of the Court of Appeals is AFFIRMED.
SO ORDERED.

". . . the Central had to rely strictly on its being entitled to a compulsory servitude Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.
of right of way, under the Civil Code, and it could not claim any such servitude
without first establishing the preconditions for its grant fixed by Articles 649 and
650 of the Civil Code of the Philippines:

(1) That it is surrounded by other immovables and has no adequate outlet to a

public highway (Art. 649, par. 1);

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

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

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

"By express provision of law, therefore, a compulsory right of way cannot be

obtained unless the four requisites enumerated are first shown to exist, and the
burden of proof to show their existence was on the Central." (See also Angela
Estate, Inc. v. Court of First Instance of Negros Occidental, 24 SCRA 500, 510)

On the first requisite, the petitioner contends that since the respondent company
constructed the concrete wall blocking his ingress and egress via the Gatchalian
Avenue, the "nearest, most convenient and adequate road" to and from a public
highway, he has been constrained to use as his "temporary" way the adjoining
lots belonging to different persons. Said way is allegedly "bumpy and impassable
especially during rainy seasons because of flood waters, mud and tall 'talahib'
grasses thereon." Moreover, according to the petitioner, the road right of way
which the private respondents referred to as the petitioner's alternative way to
Sucat Road is not an existing road but has remained a proposed road as indicated
in the subdivision plan of the Sobrina Rodriguez Lombos Subdivision.

The petitioner's position is not impressed with merit. We find no reason to disturb
the appellate court's finding of fact that the petitioner failed to prove the non-
existence of an adequate outlet to the Sucat Road except through the Gatchalian
Avenue. As borne out by the records of the case, there is a road right of way
provided by the Sobrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-
12 in its subdivision plan for the buyers of its lots. The fact that said lot is still
undeveloped and causes inconvenience to the petitioner when he uses it to reach
the public highway does not bring him within the ambit of the legal requisite. We
agree with the appellate court's observation that the petitioner should have, first
and foremost, demanded from the Sobrina Rodriguez Lombos Subdivision the
improvement and maintenance of Lot 4133-G-12 as his road right of way because
it was from said subdivision that he acquired his lot and not either from the
Gatchalian Realty or the respondents Asprec. To allow the petitioner access to
Sucat Road through Gatchalian Avenue inspite of a road right of way provided by
the petitioner's subdivision for its buyers simply because Gatchalian Avenue
allows petitioner a much greater case in going to and coming from the main
thoroughfare is to completely ignore what jurisprudence has consistently
maintained through the years regarding an easement of a right of way, that "mere
convenience for the dominant estate is not enough to serve as its basis. To justify
the imposition of this servitude, there must be a real, not a fictitious or artificial,
necessity for it." (See Tolentino, Civil Code of the Philippines, Vol. II, 2nd ed., 1972,
p. 371) LLpr

Considering that the petitioner has failed to prove the existence of the first
requisite as aforestated, we find it unnecessary to discuss the rest of the
preconditions for a legal or compulsory right of way.

Once again, we apply the rule that findings of facts of the Court of Appeals are
binding on the Supreme Court and will not be overturned when supported by the
evidence on record save in the known exceptions such as gross misappreciation
of the evidence or misapprehension of facts. (See Community Savings and Loan
21