Baretto, et. al. v. Tuason, et. al.
Properties on Rosario Street
G.R. Nos. L-36811, 36827, 36840, 36872 March 31, 1934
IMPERIAL, J.:
For the third time, there is presented for our consideration the mayorazgo founded by
the deceased Don Antonio Tuason. The first occasion was when both plaintiffs and
defendants appealed from a decision of the Court of First Instance of Manila,
dismissing the complaint and the counterclaim filed, without costs. The appeals thus
interposed were docketed under No. 23923, and the decision promulgated on March
23, 1926, is published in full in volume 50 Philippine Reports, page 888 et seq. The
second occasion was when some of the defendants instituted a certiorari proceeding
against the Court of First Instance of Manila, some of the plaintiffs, and other
intervenors, because of the appointment, at the latter's instance, of the Bank of the
Philippine Islands as receiver of all the properties constituting the . Said proceeding
was docketed under No. 32423, and the decision promulgated on February 7, 1930,
is published in full in volume 54 Philippine Reports, page 408 et seq.[1] And the third is
brought about by four appeals taken by the defendants and some intervenors from
certain portions of the decision and order rendered by the court during the new trial
held pursuant to our resolution of which we shall hereafter have occasion to speak.
The four appeals now before us were docketed separately, but for a better
understanding of the questions which we propose to resolve, we have thought it
convenient to render a single decision wherein each appeal will be discussed
individually.
PRELIMINARY CONSIDERATIONS
Before entering upon a consideration of the appeals, it is convenient to set out some
fundamental facts which have been submitted, discussed, and resolved in the
decision rendered in the original and principal case, and which are of the utmost
importance to bear in mind in resolving the questions raised anew in the appeals.
These facts are:
The mayorazgo was founded by Don Antonio Tuason on February 25, 1794.
On June 4 of the same year the founder died in the City of Manila.
The mayorazgo was approved by Royal Cedula of August 20, 1795.
On October 11, 1820, the Statute of Civil Disentailments was promulgated in Spain,
was extended to the Philippine Islands, and took effect therein on March 1, 1864, by
virtue of a Royal Decree of October 31, 1863.
The properties of the mayorazgo consist of the Haciendas de Santa Mesa y Diliman,
Hacienda de Mariquina, and two urban properties situated on Rosario Street, Manila.
By agreement of the parties, the assessed value of the said properties is:
Haciendas de Santa Mesa y
P3,550,646.00
Diliman....................................
Hacienda de
1,507,140.00
Mariquina............................................................
542,382.00
...............................................
____________
Total
5,600,168.00
................................................................................
After the promulgation of the decision in the principal case, the defendants filed a
motion of reconsideration and various persons filed motions of intervention asking at
the same time that they be admitted as intervenors for the purpose of participating in
one-fifth of the properties. The resolution published in volume 50 Philippine Reports,
page 959 et seq., was adopted, wherein (page 963) the following fundamental
conclusions, established in the decision, were reiterated:
"Resolving, therefore, said motion for reconsideration, we reiterate the following
conclusions, declaring finally:
"(1) That the first-born possessor of this mayorazgo was a mere usufructuary of the
entailed properties.
" (2) That this mayorazgo was a fideicomiso.
" (3) That the charge to distribute the fifth of the revenues from said properties was a
family trust.
" (4) That article 4 of the Disentailing Law of October 11, 1820 is applicable to the
present case.
" (5) That the fifth of the properties into which, by virtue of said law, the fifth of the
revenue was converted on March 1, 1864, when the Disentailing Law! became
effective in the Philippines, has remained and subsists as a fideicomiso up to the
present date.
"(6) That the plaintiffs' right of action has not prescribed.
"(7) That the registration of the entailed properties under Act No. 496 must, with
respect to the fifth of the said properties conserved up to the present time as
a fideicomiso, be held to have been made in favor of the beneficiaries of said fifth
part.
" (8) That the plaintiffs, as well as any other descendants of the founder, are entitled
to participate in the fifth of the properties of this mayorazgo in accordance with the
sixth clause of the deed of foundation and article 4 of the Disentailing Law."
The motion of reconsideration was denied in so far as it was incompatible with the
final and fundamental conclusions arrived at in the decision and in the resolution, but
the motion for a new trial of the intervenors who appeared in order that they or any
other person entitled to participate in one-fifth of the properties may intervene, either
by filing other complaints of intervention or by amending the complaint filed was
granted. The dispositive part of said resolution reads literally as follows:
"ORDER
"In view of the foregoing, it is ordered:
"(a) That the motion for reconsideration filed by counsel for the defendants is denied
in so far as it is incompatible with the fundamental conclusions we have arrived at in
the present cause and enumerated in the preceding resolution.
"(b) That the dispositive part of our decision in this cause be set aside.
" (c) That the record in the present case, together with the petitions of intervention
mentioned, be returned to the Court of First Instance of Manila in order that the new
parties may intervene in this cause and prove their alleged rights, and that the original
plaintiffs may, if they so desire, amend their complaint.
"(d) That the plaintiffs take the necessary steps to include as parties to this cause all
such known and unknown persons who may have the right to participate in the said
fifth part of the properties of this foundation, requiring them to appear and prove their
rights.
"(e) That said Court of First Instance proceed to try this cause and render judgment
as to the amount to which the original parties and those who may intervene may be
entitled as their participation in the fifth of the properties of this mayorazgo.
"(f) That the stipulation of facts subscribed on August 30, 1924 by Attorneys Sanz and
Blanco on behalf of the plaintiffs and Araneta & Zaragoza on behalf of the
defendants, for all intents and purposes and with respect to the parties affected, is
held as subsisting, as well as the oral and documentary evidence presented by the
parties during the original trial of the cause, the original parties as well as those who
hereafter may intervene, being entitled to introduce such additional evidence as they
may desire upon the subject matter of the trial herein ordered." (Barretto vs. Tuason,
50 Phil., 888, 966, 967.)
The case was remanded to the court of origin for the purpose above-mentioned, and
after the filing of many complaints of intervention by a number of persons claiming to
be relatives of the founder and of his younger children and, therefore, entitled to
participate in one-fifth of the properties, on suggestion of counsel for the parties, the
court appointed Modesto Reyes as referee, and upon his death, Attorney Crispin
Oben. Both referees filed their written reports, although that of the former does not
resolve the major portion of the questions raised due to his premature death, and at
the trial various objections were interposed which were resolved by the court. In its
decision the court approved most of the findings and recommendations of the last
referee, but modified others which in its opinion were not supported either by the
proven facts or the applicable law. The defendants and some of the intervenors, not
being likewise agreeable to certain portions of the decision and order thus
promulgated, have taken the four appeals now before us.
G. R. No. 36811
APPEAL OF THE INTERVENORS SURNAMED LEGARDA Y DE LA PAZ
The appellants in this case are the brother and sisters Benito, Consuelo, and Rita,
surnamed Legarda y de la Paz. These intervenors claim participations in one-fifth of
the properties in two capacities: First, as descendants of the younger son Pablo
Tuason, and, second, for having inherited from their parents the participations in one-
fifth of the properties which were sold to the latter by certain relatives of the founder.
They likewise claim the share to which they would be entitled in the participations of
certain relatives of the younger daughter, Eustaquia Ma. Tuason, who sold said
participations to the defendants. We will hereafter have occasion to pass on this
contention in discussing the fourth assigned error.
The following is an enumeration of the names of the vendors of their participations in
favor of the parents of the appellants, giving the dates of the respective deeds:
"1. DOROTEA TUASON, by a deed of absolute sale execute by her in favor of Benito
Legarda and Teresa de la Paz, dated September 13, 1881. (Exhibit A-Legarda.)
"2. ISABEL ARENAS, by a deed of absolute sale executed by her and her husband
Francisco Esteban, in favor of the spouses Benito Legarda and Teresa de la Paz,
dated October 2, 1884. (Exhibit B-Legarda.)
"3. The brothers ENRIQUE, SEVERINO, and DOMINGO, surnamed FRANCO, by a
deed of absolute sale executed by them in favor of the spouses Benito Legarda and
Teresa de la Paz, dated November 7, 1884. (Exhibit C-Legarda.)
"4. The sisters Balbina Santos Tuason and Magdalen Santos Tuason, by a deed of
absolute sale executed by them in favor of the spouses Benito Legarda and Teresa
de la Paz, dated January 23, 1885. (Exhibit D-Legarda.)
"5. APOLINARIA TUASON, by a deed of absolute sale, executed by her in favor of
the spouses Benito Legarda and Teresa de la Paz, dated February 11, 1885. (Exhibit
E-Legarda.)
"6. ESTEBAN DUARTE, ISIDRA MARIA DUARTE, and ALEJANDRO DUARTE, by a
deed of absolute sale executed by them in favor of the spouses Benito Legarda and
Teresa de la Paz, dated February 17, 1885. (Exhibit F-Legarda,)
"7. TOMASA TUASON DE TOBIAS, who was then a widow, by a deed of absolute
sale executed by her in favor of the spouses Benito Legarda and Teresa de la Paz,
dated October 3, 1888. (Exhibit G-Legarda.)
"8. LUIS TUASON and PEDRO TUASON, by a deed of absolute sale executed by
them in favor of the spouses Benito Legarda and Teresa de la Paz, dated April 7,
1886. (Exhibit H-Legarda.)
"9. ALEJANDRO, ANACLETO, TEODORICO, MARIA, AND DIONISIA, SURNAMED
CAMACHO Y TUASON, AND TOMAS, ENCARNACION, MARIA, and MERCEDES,
SURNAMED MACARANAS Y TUASON, by a deed of absolute sale executed by
them in favor of the spouses Benito Legarda and Teresa de la Paz, dated August 11,
1886. (Exhibit I-Legarda.)
"10. FELIPE G. ALCALDE, by a deed of absolute sale executed by him in favor of the
said spouses, dated October 27, 1886. (Exhibit J-Legarda.)
"11. QUINTINA CASTILLO VIUDA DE JUAN N. C. REYES, by a deed of absolute
sale executed by her in favor of the spouses Benito Legarda and Teresa de la Paz,
dated April 25, 1888. (Exhibit K-Legarda.)
"The vendor, Quintina Castillo Viuda de Juan N. C. Reyes, who had a participation in
the entailed properties as descendant in the direct line of the founder, acquired the
participation of the latter, the said vendor Quintina Castillo having been declared the
sole and universal heir by will of the said Juan N. C. Reyes, as evidenced by Exhibit
K-1-Legarda.
"12. TEODORA EIZMENDI by a deed of absolute sale executed by her in favor of the
spouses Benito Legarda and Teresa de la Paz, dated October 3, 1888. (Exhibit L-
Legarda.)
"13. PETRONA MARIA DUARTE, by a deed of absolute sale executed by her in favor
of the said spouses Benito Legarda and Teresa de la Paz, dated October 8, 1888.
(Exhibit L-1-Legarda.)
"14. AVELINO TUASON alias ANDRES AVELINO TUASON, by a deed of absolute
sale executed by him in favor of the father of the herein intervenors, Benito Legarda,
dated March 5, 1883. (Exhibit M-Legarda.)"
Of the said sales, only those executed by the following were impugned: (1) Isabel
Arenas; (2) Tomasa Tuason de Tobias; (3) Luis Tuason and Pedro Tuason; (4)
Alejandro, Anacleto, Teodorico, Maria, and Dionisia, surnamed Camacho y Tuason,
and Tomas, Encarnacion, Maria, and Mercedes, surnamed Macaranas y Tuason; (5)
Felipe G. Alcalde, and (6) Teodora Eizmendi. The impugners of the sales are
relatives of the vendors who would be entitled to succeed them in their respective
participations.
The appellants impute the following errors to the appealed decision:
"I. In finding that Tomasa Tuason de Tobias, Luis Tuason, and Pedro Tuason, who
sold their participations in the properties in litigation to the father and mother of the
intervenors Legarda y de la Paz, were already receiving the revenue on the date the
Disentailing Statute took effect.
"II. In declaring null and void as to one-half of the participations sold, instead of valid
in their entirety, the sale made by Tomasa Tuason de Tobias (Exhibit G-Legarda) and
that executed by Luis and Pedro Tuason (Exhibit H-Legarda), and in not adjudicating
to the intervenors Legarda y de la Paz the entire participations corresponding to said
vendors.
"III. In excluding from the sales the participations corresponding to the vendors in the
portions belonging to the younger children without succession of the founder, and in
not adjudicating said participations to the intervenors Legarda y de la Paz.
"IV. In not adjudicating to the intervenors Legarda y de la Paz the participations sold
by some descendants of the founder's daughter, Eustaquia Maria Tuason, and in the
event of the distribution of said participations among the descendants, in general, of
the founder, in not adjudicating to said intervenors the participations which would,
therefore, correspond to the vendors of the Legardas.
"V. In not adjudicating to the intervenors Legarda y de la Paz the participation
corresponding to the vendor Dorotea Tuason as descendant of Santos Luciano
Tuason.
"VI. In not ordering the defendants to pay legal interest.
"VII. In denying the motion for a new trial." The first two assigned errors are intimately
related, as they refer to the sales of their participations executed by Tomasa Tuason
de Tobias, Luis Tuason, and Pedro Tuason. Referee Oben held in his report that the
sales made by said vendors did not transfer more than one-half of their participations,
because on the dates of the sales they were the ones who received the revenue and
they could not dispose of more than one-half of their participations, reserving the
other half in favor of their immediate successors, in accordance with the provisions of
article 4, in connection with articles 2 and 3, of the Disentailing Statute. The court
entertained the same opinion.
In support of their contention, the appellants advance the following reasons: (1) That
the said vendors were not the ones who received the revenue on March 1, 1864,
when the Disentailing Statute took effect; consequently, the reservation of one-half is
not applicable to the sales in question; (2) that the present action of the impugners to
invalidate the sales as to one-half thereof has already prescribed; (3) that the
appellants have acquired by prescription of ownership the entire participations sold;
and (4) that the inaction of the impugners of the sales for a period of years without
exercising their alleged right estops them from claiming the participations sold, under
the doctrine known as estoppel by laches.
Although we have examined the oral and documentary evidence adduced, to
ascertain whether Tomasa Tuason de Tobias, Luis Tuason, and Pedro Tuason were
in fact the ones who received the revenue when the Disentailing Statute took effect
and we are in a position to state that the first of said vendors was not in fact the one
who received the revenue on said date but the Tuason brothers nevertheless, we do
not make any pronouncement on this question in view of the fact that the first two
assigned errors under consideration should be resolved in connection with the other
arguments relative to prescription of action and ownership and estoppel by laches.
It will be recalled that the deed of sale of the participation of Tomasa Tuason de
Tobias was executed on October 3, 1888, and the sale of those of the brothers Luis
and Pedro Tuason on April 7, 1886; the complaints of intervention which assailed the
validity of the sales of said participations for the first time were filed in 1927, hence,
approximately forty-one years have elapsed from the first sale to the date its validity
was impugned for the" first time, and about thirty years from the execution of the
second sale to the said date.
The right now exercised by the impugners of the sales is a personal action whose
prescription should be governed by the laws in force at the time of the execution of
the deeds of sale, that is, April 7, 1886, and October 3, 1888, namely, Law 5, Title 8,
Book 11, of the Novisima Recopilacion, and Law 21, Title 29, Partida 3, which provide
for the period of ten years (Cruzado vs. Bustos and Escaler, 34 Phil., 17).
Article 1939 of the present Civil Code provides:
"ART. 1939. Prescription which began to run before the publication of this Code shall
be governed by the prior law; but if, after this Code took effect, all the time required by
the same for prescription has elapsed, it shall be sufficient even if according to such
prior law a longer period of time would have been required."
And article 1301 of the same Code provides:
"ART . 1301. The action of annulment shall last four years.
"The term shall commence to run
"In cases of intimidation or violence from the day on which it has ceased;
"In those of error or deceit or falsity of consideration, from the date of the
consummation of the contract;
"When the purpose of the action is to invalidate the unauthorized contracts of a
married woman, from the date of the dissolution of the marriage;
"With respect to contracts made by minors or incapacitated persons, from the date
they were released from guardianship."
According to these provisions, the action of annulment, admitting that it had not yet
prescribed when the Civil Code took effect in these Islands on December 7, 1889
(Mijares vs. Nery, 3 Phil., 195), should have been commenced by the impugners of
the sales within the four (4) years following the taking effect of the Civil Code, which
was not done.
The rules of prescription found in the Code of Civil Procedure, Act No. 190, are not
applicable to the action of annulment under consideration, because according to
section 38 thereof, the prescriptive period provided in former statutes should be
applied to rights of action which have already accrued before it went into effect.
From the foregoing it clearly follows that the action of annulment instituted and relied
upon by the impugners of the said sales has already prescribed, both under the Laws
of the Partidas and the Novisima Recopilacion and under the provisions of the Civil
Code, and in the latter case, even on the supposition that the prescriptive period for
an action of annulment of contracts had been extended to ten years, instead of four,
in accordance with the provisions of section 43, No. 1, of the Code of Civil Procedure.
(Willard, Notes on Civil Code; Brillantes vs. Margarejo and Belmonte, 36 Phil., 202.)
But the impugners of the sales argue that they do not in fact institute an action of
annulment, but merely use the same as a defense, hence, they are not affected by
the laws of prescription. In the able report of referee Oben, this phase of the question
was discussed at length, and he came to the conclusion, as did the court, that the
impugners of the sales have in fact brought an action of annulment. Without going
into another extended discussion, we believe it will suffice to state, to demonstrate the
same conclusion, that in the instant case those in the enjoyment of the participations
sold as well as the ownership thereof are the appellants and not the impugners of the
sales, and that to recover the rights lost under the deeds of sale they executed, the
latter have to avail themselves of an action of annulment. In this sense, at least, they
should be understood as bringing the action instead of simply defending themselves,
aside from the indisputable fact that, to recover the participations which they sold,
they found it necessary to file complaints of intervention, which are really complaints
under the letter and spirit of section 121 of the Code of Civil Procedure.
As to the question of acquisitive prescription, likewise invoked by the appellants, we
hold that due to the long lapse of time they have acquired by prescription whatever
rights the impugners of the sales had in the participations which they sold.
Addressing ourselves to appellants' last argument, it should again be stated that they
and their predecessors have enjoyed the revenue corresponding to the participations
which they have acquired and that during the period that has elapsed, the vendors
and impugriers of the sales have done nothing to recover their alleged rights. Such
conduct insurmountably bars the instant action of annulment under the doctrine of
estoppel by laches. In the case of Buenaventura vs. David (37 Phil., 435), speaking of
the said doctrine, we said:
"* * * The assertion of doubtful claims, after long delay, cannot be favored by the
courts. Time inevitably tends to obliterate occurrences from the memory of witnesses,
and even where the recollection appears to be entirely clear, the true clue to the
resolution of a case may be hopelessly lost. These considerations constitute one of
the pillars of the doctrine long familiar in equity jurisprudence to the effect that laches
or unreasonable delay on the part of a plaintiff in seeking to enforce a right is not only
persuasive of a want of merit but may, according to the circumstances, be destructive
of the right itself. Vigilantibus non dormientibus equitas subvenit."
And in the case of Tuason vs. Marquez (45 Phil., 381), the same principle was again
applied as follows:
"The equitable doctrine termed with questionable propriety 'estoppel by laches,' has
particular applicability to the facts before vs. Inexcusable delay in asserting a right
and acquiescence in existing conditions are a bar to legal action. * * *"
We see no good reason why the said equitable doctrine should not be applied to the
case at bar. The impugners of said sales have let pass a number of years from the
accrual of their right of action to annul the sales without exercising such right, and
have voluntarily permitted appellants' predecessors in interest to enjoy the
participations sold; in which circumstances it is the duty of the courts to restrict,
instead of encourage, the granting of a right already lost.
The third assigned error refers to the sales executed by some descendants of the
founder who sold the participations that would come to them as descendants likewise
of the younger children of the founder. The court at first approved the report of referee
Oben declaring valid the sales of the participations coming from the younger children
with succession as well as from those without succession. But the court, in its order of
April 8, 1931, modified its decision declaring invalid the sales of the participations
coming from the younger children without succession. From this latter resolution the
appeal was taken. The reason alleged by the court in support of its last order was,
that the said sales were illegal because they conveyed rights not known and
determined at the time of the execution of the deeds of sale. We do not see the force
of this argument. If the sales were valid as to the participations coming from the
younger children with succession, with more reason should the sales of the
participations coming from the younger children who died without succession be
declared equally valid, as in both cases the sale of existing rights, known and
determinable, was involved, inasmuch as said participations, in so far as the vendors
were concerned, arose and were acquired by the latter from the death of their
predecessors in interest, the younger children. (Article 657 of the Civil Code.) For this
reason we find the third error tenable and sustain the validity of the sales of said
participations.
The plaintiffs and the defendants had stipulated when the original case was heard
that the younger daughter, Eustaquia Ma. Tuason, died without succession, but it
developed that the said deceased in fact left descendants some of whom sold their
participations to the defendants. The referee stated in his report that such
participations have neither been sold nor legally acquired by the defendants because
they were estopped by their stipulation with the plaintiffs to the effect that said
younger daughter died without descendants. The court differed from this view and
held in its decision that there was no such estoppel, and that the defendants validly
acquired the participations sold to them. The herein appellants, Legarda brothers and
sisters, by their fourth assigned error, now attempt to reverse the finding of the court
that the defendants are not thus estopped. And appellants' purpose is obvious: if the
sales are invalidated, the participations, subject matter thereof, would be distributed
among all the relatives of the said younger daughter, and appellants will naturally
receive a certain aliquot part thereof.
We agree with the court that the defendants are not estopped just because they
stipulated that Eustaquia Ma. Tuason left no succession. And this proposition is clear
by simply taking into account that the defendants never agreed that they had not
purchased the participations of the descendants of the said younger daughter. The
stipulation referred only and exclusively to the succession or descendants of the said
younger daughter and cannot be logically extended to the sales made by several of
her descendants. Moreover, as properly observed by the court, to sustain appellants*
theory would result in the absurd case of the other descendants of said younger
daughter who did not sell their participations being deprived thereof just because the
original parties stipulated that their predecessor in interest left no succession. We,
therefore, rule that the fourth assigned error is untenable.
The fifth error relates to the participations of Dorotea Tuason which she sold to the
appellants. This vendor was entitled to a double participation coming from two
sources, to wit, from the younger children Santos Luciano Tuason and Felix Bolois
Tuason. In the amendatory report of referee Oben the participation of this vendor as
descendant of Santos Luciano Tuason was overlooked. The appellants filed a motion
of reconsideration asking, among other things, that the participation of said vendor as
descendant of Santos Luciano Tuason be likewise adjudicated to them. The court
granted the motion, but in its order it was stated that the participation of Dorotea
Tuason coming from Felix Bolois Tuason will be adjudicated to the appellants, instead
of that coming from Santos Luciano Tuason. In other words, there was a transposition
of names, hence, appellants state in their brief that this involves a mere correction of
a clerical error.
In view of the foregoing we find the fifth assigned error well-founded.
In their sixth assigned error the appellants contend that the defendants are bound to
pay them legal interest on the amounts of money to be adjudicated to them as their
participations in the one-fifth, alleging as a reason therefor that the defendants were
guilty of delay from the taking effect of the Disentailing Statute ordering the
distribution and delivery of the fifth to the persons entitled to it, among whom were
said appellants.
The contention is without merit in view of the fact that in the decision rendered in the
original case, it was held that the plaintiffs, whose position was like that of the herein
appellants, were entitled to an accounting of the expenses and revenues of said
properties and to receive the corresponding revenues, from January 1, 1923, until the
defendants deliver to them their participations in the properties of the foundation. The
revenues thus adjudicated were in lieu of legal interest claimed by the plaintiffs. For
these reasons, the sixth assigned error is untenable.
The seventh and last assigned error need not be discussed being a corollary of the
preceding ones.
Recapitulating all that has been said so far, it results:
1. That the sales of their participations made by Tomasa Tuason de Tobias,
Luis Tuason and Pedro Tuason in favor of the appellants, are valid in their
entirety and should, therefore, be adjudicated to the latter; thus resolving
favorably the first two errors assigned;
2. That the sales made by some descendants of the founder, of their
participations coming from the younger children without succession, are
likewise valid, and said participations should be adjudicated to the
appellants. This also resolves favorably the third assigned error;
3. That the participation of Dorotea Tuason as descendant of Santos Luciano
Tuason should be adjudicated to the appellants; thereby resolving favorably
the fifth assigned error; and
4. That the fourth and sixth assigned errors are overruled as untenable.
G. R. No. 36827
APPEAL OF THE INTERVENOR ANA BARCINAS TORRES (alias ANA BARCINAS
PEREZ) AND OTHERS
It will be recalled, from what has been said in connection with the first appeal, that
Eustaquia Ma. Tuason died leaving succession, notwithstanding the stipulation to the
contrary by the plaintiffs and the defendants at the trial of the principal case. The
herein appellants are descendants of the younger daughter Eustaquia Ma. Tuason.
All of them, with the exception of Tomas Barcinas y Reyes, are descendants of
Tomas Barcinas y Cruz, Benita Barcinas y Cruz, and Maria Manibusan y Barcinas,
who, with the said Tomas Barcinas y Reyes, sold all their rights, interest, and
participation in one-fifth of the revenue of the mayorazgo through their attorney-in-fact
Manuel de los Reyes, in favor of the estate of Teresa de la Paz.
Said appellants attribute to the appealed decision the following errors:
"I. We hereby adopt as our own all of the pertinent assignments of errors of the other
intervenors in G. R. Nos. 36811 and 36840, which are applicable to the intervenors
here and, by reference, hereby incorporate their arguments in support of said errors.
"II. The lower court erred in holding the power of attorney executed in favor of Manuel
de los Reyes valid, and in failing to hold same null and void.
"III. The lower court erred in holding the sale executed by Manuel de los Reyes,
pretending to act under and by virtue of aforesaid void power of attorney, valid, and in
failing to hold same null and void.
"IV. The lower court erred in interpreting aforesaid sale executed by Manuel de los
Reyes, pretending to act under aforesaid void power of attorney, and in so
interpreting said sale as to deprive these intervenors of their true rights under
the mayorazgo founded by Don Antonio Tuason."
Exhibit Tuason-1 shows that on June 8, 1894, the said Tomas Barcinas y Cruz,
Tomas Barcinas y Reyes, Benita Barcinas y Cruz, and Maria Manibusan y Barcinas,
through their attorney-in-fact Manuel de los Reyes, sold all their participations in one-
fifth of the revenue of themayorazgo which they had in possession as descendants of
the younger daughter Eustaquia Ma. Tuason, including all their rights and interest in
the said one-fifth of the revenue, for the sum of P5,000. In the said deed of sale there
was reproduced in full the power of attorney which said vendors had conferred on
their attorney-in-fact Manuel de los Reyes, executed on July 4, 1893, in the City of
Agana, capital of Marianas Islands, before the judge of first instance acting as notary
in the absence of the notary of said district.
The appellants contend that the sale is null and void because the power of attorney
which the vendors conferred on their agent was not ratified before a notary but before
a judge of first instance. The referee, in passing upon the legal point involved, said:
"In order that the sale made by Manuel de los Reyes in behalf of the Barcinas may be
valid, a written power of attorney was sufficient, without the necessity of converting
said power of attorney into a public document. (Section 335, No. 5, Code of Civil
Procedure; article 1278, Civil Code.) Without discussing, therefore, whether or not
under the laws in force in the Marianas Islands in 1893, the judge of first instance
could act as notary public, the indisputable fact remains that those named as grantors
in the instrument in question executed said power of attorney; and this execution of
the written power of attorney was sufficient to authorize the attorney-in-fact Manuel de
los Reyes to execute a valid sale of the property of his principals.
"The undersigned is of the opinion, therefore, that the deed Exhibit Tuason-1 legally
transferred to the estate of Dona Teresa de la Paz what appears in said deed,
belonging to the grantors therein named."
The court affirmed the conclusion of the referee in the following language:
"The court agrees with the referee that, notwithstanding the execution of the power of
attorney in the City of Agana before the judge of first instance of the Marianas
Islands, the sale was valid, because according to the said Exhibit Tuason-1, the judge
of first instance of said Islands, 'Acted with the witnesses then present, Don Manuel
Aflague and Don Juan del Rosario, in the capacity of notary public' in the absence of
this official in that district (underscoring ours). The intervenors Barcinas, represented
by Attorney Wolf son, have not shown that on the date of the execution of the power
of attorney, June 8, 1894, there was a notary in the City of Agana; on the contrary,
said Exhibit Tuason-1 shows that there was no such notary in the district, hence, the
judge of first instance acted in that capacity. Compliance with the law does not require
the impossible. There being no notary, we cannot insist that the power of attorney be
executed before a notary. It was sufficient that it be executed before the judge of first
instance acting in the capacity of notary public. Wherefore, the court is of the same
opinion as the referee, that the sale executed by the intervenors Barcinas, Exhibit
Tuason-1, in favor of the estate of Dona Teresa de la Paz is valid."
The appellants have not cited any law especially applicable to the Marianas Islands at
the time the power of attorney in question was executed, whereby the intervention of
a notary in the execution of said kind of documents was made absolutely necessary.
In 1893 the present Civil Code was already in force in the country, and the provisions
thereof applicable to the subject of agency are as follows:
"ART. 1710. An agency may be express or implied.
"An express agency may be created by a public or private instrument or even orally.
"The acceptance may also be express or implied, the latter being inferred from the
acts of the agent."
"ART. 1713. An agency created in general terms only includes acts of administration.
"In order to compromise, alienate, mortgage, or to execute any other act of strict
ownership, an express power is required.
"The power to compromise does not give authority to submit the matter to arbitrators
or friendly adjusters,"
The pertinent portion of section 335 of the Code of Civil Procedure, provides:
"SEC. 335. Agreements invalid unless made in writing. In the following cases an
agreement hereafter made shall be unenforceable by action unless the same, or
some note or memorandum thereof, be in writing, and subscribed by the party
charged, or by his agent; evidence, therefore, of the agreement cannot be received
without the writing, or secondary evidence of its contents:
*******
"5. An agreement for the leasing for a longer period than one year, or for the sale of
real property, or of an interest therein, and such agreement, if made by the agent of
the party sought to be charged, is invalid unless the authority of the agent be in
writing and subscribed by the party sought to be charged."
It, therefore, follows that under the legal provisions above quoted, the power
conferred upon Manuel de los Reyes is valid although no notary public intervened in
its execution. And the sale executed by said attorney-in-fact is likewise valid because
in the execution of the corresponding deed the essential requisites provided by law
were complied with.
The above refuses appellants' second, third, and fourth assigned errors relating to the
validity of the power of attorney and the deed of sale of the participations already
referred to.
The first assignment does not specify any error committed by the court and the
appellants only make and reproduce therein, as their own, the assignments of error of
the intervenors-appellants in cases G. R. Nos. 36811 and 36840. It is not incumbent
upon us to consider seriously an assignment of error of this nature, although the
assignments of error made by the other appellants will be considered and resolved in
due time.
In resume, we find the four assigned errors of these appellants untenable.
G. R. No. 36840
APPEAL OF ESTANISLAOA ARENAS AND OTHERS
The herein appellants are likewise descendants of the founder of the mayorazgo.
Some of them directly sold to the defendants their participations in one-fifth of the
revenue and all their rights and interest in the mayorazgo; the others are descendants
of other relatives of the founder who likewise sold their participations in one-fifth of the
revenue and all their rights and interest in the mayorazgo in favor of the same
defendants. The deeds evidencing the sales have been marked as Exhibits 2, 3, 4, 5,
6, 7, 10, 11, 12, 13, 14, 16, and 17.
The appellants impugn all the sales as null and void and in their brief assign the
following errors:
"I. The court erred in holding that, by the deeds of sale executed by the intervenors-
appellants, or their predecessors in interest, in favor of the defendants and the
predecessors in interest of the intervenors Legarda and sisters, the participations of
the former in theownership and dominion of one-fifth of the properties of
the mayorazgo were sold and in not declaring said sales null and void.
"II. The-court erred in finding that on the date of the execution of the sale made by
Isabel Arenas the latter had no immediate successor and in disapproving the report of
the referee on this question.
"III. The court erred in finding that Camila Tuason died after the year 1864, when the
Disentailing Statute took effect in the Philippines, and not in 1863 as found by the
referee."
In support of the first assigned error, the following propositions are advanced: (1) That
the vendors intended to sell only their participations in one-fifth of the revenue and not
the ownership or other rights which they had in the mayorazgo, consequently, the
sales were null and void for lack of said vendors' consent; (2) that the purchasers
were administrators or trustees of the properties of the mayorazgo, and, therefore, fall
under the prohibition found in article 1459 of the Civil Code; (3) that the purchasers
the spouses Legarda, at the time they purchased the participations of some of the
intervenors, were legal administrators of the properties of the mayorazgo, and,
therefore, lacked the capacity to buy in accordance with the provisions of
the Novisima Recopilacion then applicable; (4) that the purchasers obtained the
vendors' consent through fraud, and (5) that the said sales are moreover null and void
under the express provisions of article 4, in connection with article 3, of the
Disentailing Statute, for lack of prior formal appraisal and partition of the properties
constituting the fifth of the mayorazgo.
Considering the view we have taken in respect of the first assigned error, a view
which we will hereafter set forth, it would seem unnecessary to answer the arguments
advanced by the appellants. However, we will briefly state the following:
After a careful examination of all the deeds of sale, we hold, as did the referee and
the court, that the vendors sold not only their participations in the revenue but also all
their rights and interest in the properties of the moyorazgo. In other words, said
vendors in fact sold their participations and rights in the ownership of the mayorazgo,
to which the one-fifth of the revenue was converted in view of the enforcement of the
Disentailing Statute in the Islands.
The purchasers, strictly speaking, were not legal administrators or fiduciaries of the
rights sold to them by the vendors, at least in the sense in which the prohibition then
existing was expressed and established. As the court correctly stated, the
purchasers, in connection with the transactions, acted as mere coproprietors or
tenants in common, and the right to buy which they then exercised was expressly
recognized by law.
The fraud Imputed to the purchasers has not been proved; the evidence shows that
the vendors had full knowledge of the rights which they sold and that thereby they
conveyed to the vendees all the interest which they could have in the mayorazgo.
And with respect to the lack of formal appraisal and partition of one-fifth of the
properties of the mayorazgo, prior to the sales, requisites found in article 4, in
connection with article 3, of the Disentailing Statute, it is sufficient to state our opinion
that non-compliance therewith should not produce either the effect or the meaning
attributed to them by the appellants. It seems to us that the court was right in
interpreting that the appraisal, partition, and intervention of the immediate successor
are required only in cases in which the actual possessor of properties or the one who
receives the revenue desires to dispose of his participations in a specific and
particular form, but not when, as in the case under consideration, undivided and
indeterminate rights or participations were sold. In case of an hereditary estate, for
instance, a coheir may sell his successory right, although undetermined, without the
necessity either of a prior appraisal or partition of said estate or notice to or
intervention by the other coheirs.
We will now briefly state the view we have taken of the first assigned error. The most
recent sales impugned were made between the years 1905 and 1910; the oldest
deeds were executed between the years 1891 and 1898. On the other hand, the
appellants challenged the validity of said sales for the first time in January and
February, 1929. Theretofore, at least, nineteen years had elapsed as to the sale
effected in 1910. We hold that the lapse of the period of nineteen years is more than
that required for the prescription of the action of annulment began by the appellants
through their complaints of intervention, and in support of this holding we recur here
to all that we said on the subject in resolving the appeal interposed by the intervenors
Legarda. We are likewise of the opinion that the appellants are now barred from
claiming any right in connection with said sales under the doctrine of estoppel by
laches. We repeat what we said on this point in the appeal of the Legardas, to the
effect that the validity of sales may not be questioned anew after the purchasers have
enjoyed the participations sold and the fruits thereof for many years.
The second and third assigned errors refer to the sales made by Isabel Arenas and
Alejandro Camacho and brothers, respectively. The intervenor-appellant Rafael
Arenas contends that the sale executed by his mother Isabel Arenas is null and void
as to one-half because said vendor had an immediate successor at the time of the
sale. The Camachos, in turn, allege that the sale they executed is likewise null and
void as to one-half because, contrary to the finding of the court, they were the ones
who received the revenue at the time the Disentailing Statute took effect, and they
contend in this connection that their mother Camila Tuason died in 1863 and not after
1873, as found by the court. We do not find it necessary to discuss the question of
fact thus raised, because in both cases prescription and the rule of estoppel by laches
are applicable against the appellants. On both grounds we rule that the appellants
may not now question the validity of the aforesaid sales.
It follows from what has been said that the three errors assigned by the appellants are
overruled as not well-founded.
G. R. No. 36872
APPEAL OF THE DEFENDANTS AUGUSTO H. TUASON Y DE LA PAZ AND
OTHERS
This appeal is interposed by the defendants who were the possessors of all the
properties of the mayorazgo at the time the principal case was instituted and before
the Bank of the Philippine Islands was appointed receiver. Said appellants impute to
the appealed decision and order the following errors:
"FIRST ERROR
"The lower court erred in not passing upon certain vital issues on the ground that they
had been definitely concluded.
"SECOND ERROR
"The trial court erred in not finding that the fifth part of the mayorazgo belongs in fee
simple to the defendants.
"THIRD ERROR
The trial court erred in distributing the fifth part as follows: three-eighths thereof
among all the descendants of the founder (including those of the first possessor of
the mayorazgo) per stirps of great great grandchildren, including those who have
already died; and the remaining five-eighths among the descendants of the five
younger children of the founder who died leaving succession, distributing the same
per stirps of said children.
"FOURTH ERROR
"The trial court erred in not finding that the plan of distribution more in conformity with
the provisions of article 4 of the Disentailing Law, would be to assign to each recipient
(whether plaintiff or intervenor) a portion of the one-fifth of the entail in the proportion
that the pension which he used to receive bears to the net income of the fifth of the
entail.
"FIFTH ERROR
"The trial court erred in not distributing the three-eighths exclusively among the
defendants.
"SIXTH ERROR
"In case the preceding assignment of error be overruled, we respectfully submit that
the trial court erred in distributing the three-eighths in equal portions per stirps of the
great great grandchildren (tataranietos), including those who have already died,
instead of distributing the same only among those that are living, or, more properly,
instead of distributing the same per stirps of the children of the founder.
"SEVENTH ERROR
"The trial court erred in not finding what is the value in pesos of the different
participations assigned to the different parties in this case.
"EIGHT ERROR
"The trial court erred in not finding that the plaintiffs having filed a personal action
against the defendants asking judgment in the sum of five hundred thousand pesos
(P500,000), for damages which the said parties agreed were the value of the one-half
of the so-called family trust are now barred to claim participation in the properties
themselves thereby converting the action into one in rem.
"NINTH ERROR
The trial court erred in finding that the sales executed by Mariano Arenas, Estanislaoa
Arenas, Julio Tuason, Severino Tuason, Encarnacion Rojo and Candelaria Rojo were
null and void as to one-half thereof.
"TENTH ERROR
"Assuming that the said sales as to one-half thereof should be declared null and void,
the trial court erred in not condemning the sellers or their successors in interest to
return one-half of the price received by them from the purchasers, plus the legal
interest thereof from the time of the sale.
"ELEVENTH ERROR
"The trial court erred in finding that the sales executed by the intervenors or their
predecessors in interest of any rights that they might have had in the fifth of
the mayorazgo in question, did not cover the right that they had to participate in the
three-eighths which originally correspond to the three younger children of the founder
who died without leaving succession.
"TWELTH ERROR
"The trial court erred in not requiring the referee to file an amended report in
conformity with the order of the trial court dated April 9, 1931."
By way of preliminary observation we will state that it is not our intention to hold that
the questions raised by the appellants in their first, second, third, fourth, fifth, sixth,
and eighth assigned errors are res judicata because they have been submitted,
discussed at length, and resolved in the decision rendered in the principal case,
because we believe this to be unnecessary; but we understand, and so decide, that
unless it is shown that said questions have been erroneously resolved and that there
exist sufficient reasons justifying that we renounce the conclusions already reached, it
is our duty to adhere to them and to apply the principles laid down in the aforesaid
decision in so far as they are applicable to the same points raised anew in the instant
appeal.
The first assignment does not specify any error committed by the court, hence, we
are not bound to resolve any specific question; but in the development of the idea
which the appellants have apparently attempted to bring out, they argue in synthesis
that in the resolution granting a new trial this court again left open for discussion the
same points already considered and resolved as well as the new ones which the
parties may desire to raise in the aforesaid new trial. An examination of said
resolution, however, shows just the contrary. In the said resolution the following
language was employed:
"Counsel for defendants insist upon their contentions maintained from the beginning
and disposed of in our decision. They raise some points in their briefs, however,
which require a few brief-remarks." (Barretto vs. Tuason, 50 Phil., 888, 959.)
 *******
"Resolving, therefore, said motion for reconsideration, we reiterate the following
conclusions, declaring finally:
"(1) That the first-born possessor of this mayorazgo was a mere usufructuary of the
entailed properties.
"(2) That this mayorazgo was a fideicomiso.
" (3) That the charge to distribute the fifth of the revenues from said properties was a
family trust.
" (4) That article 4 of the Disentailing Law of October 11,1820 is applicable to the
present case.
" (5) That the fifth of the properties into which, by virtue of said law, the fifth of the
revenue was converted on March 1, 1864, When the Disentailing Law became
effective in the Philippines, has remained and subsists as a fideicomiso up to the
present date.
"(6) That the plaintiffs' right of action has not prescribed.
" (7) That the registration of the entailed properties under Act No. 496 must, with
respect to the fifth of the said properties conserved up to the present time as
a fideicomiso, be held to have been made in favor of the beneficiaries of said fifth
part.
" (8) That the plaintiffs, as well as any other descendants of the founder, are entitled
to participate in the fifth of the properties of this mayorazgo in accordance with the
sixth clause of the deed of foundation and article 4 of the Disentailing Law.
"(9) The pronouncements made in our decision with respect as to the amount of the
participation of each claimant shall be set aside in view of the motions of the
intervenors which we are about to examine." {Ibid., pp. 963, 964.)
No clearer and more categorical language could have been employed to express the
intention of the court to adhere to and reiterate the conclusions and principles already
established in the decision originally rendered, notwithstanding the motion of
reconsideration and new trial. Neither can there be any doubt as to the questions
which the court considered definitely resolved and which should not be the subject of
further discussion.
That this court did not intend to allow the parties to raise anew the fundamental
questions already resolved, and that the new trial should be limited exclusively to a
determination of the amount to which the intervenors could be entitled in the fifth of
the properties, is clearly shown by the following quoted paragraphs which form a part
of the order found in the aforesaid resolution:
" (a) That the motion for reconsideration filed by counsel for the defendants is denied
in so far as it is incompatible with the fundamental conclusions we have arrived at in
the present cause and enumerated in the preceding resolution.
*******
" (e) That said Court of First Instance proceed to try this cause and render judgment
as to the amount to which the original parties and those who may intervene may be
entitled as their participation in the fifth of the properties of this mayorazgo." (Ibid., p.
966.)
Defendants-appellants intimate that the said resolution is without legal force because
it was not concurred in by a sufficient majority of the members then composing this
court. A sufficient answer to this is, that the aforesaid resolution was authorized and
concurred in by eight of the nine members then composing this court.
In the second assigned error, the appellants again insist that the naked ownership of
the fifth of the properties of the mayorazgo belongs to them. This question was
already definitely resolved in the decision as well as in the resolution on the motions
of reconsideration and new trial wherein it was stated:
"Counsel for defendants allege that the properties of this foundation passed into the
hands of the heir, Jose Victoriano Tuason, completely free, one-half by testamentary
inheritance and the other half by virtue of article 2 of the Disentailing Law. This,
however, was not the will of the testator, Don Jose Severo Tuason, nor the will of his
successors, all of whom respected the mayorazgo and held it as subsisting de facto.
In no event could the properties pass into the hands of the heir Jose Victoriano
Tuason completely free. It was necessary to preserve them intact until they were
appraised and the fifth part thereof had been segregated for distribution among the
recipients of the revenues and their immediate successors, in accordance with the
provisions of article 4 of the statute.
"It is a fact that the trust subsisted and still subsists. The successive possessors of
the entail have preserved and preserve the properties of the mayorazgo respecting
and distributing the fifth of the revenue among the descendants of the younger
children of the founder.
"But the entail could not and cannot continue perpetually. Its abolition was decreed by
the statute as of the 1st day of March, 1864. Its perpetual survival would be contrary,
not only to the Disentailing Law of October 11, 1820, but also the Civil Code in force
which, under articles 781 and 785, paragraph 2, positively prohibits perpetual entails.
"If up to the present time the entail in question subsists, this has been because the
interested parties have been maintaining it without proceeding to the appraisal and
distribution of the entailed properties, as required by articles 2 and 4 of the
Disentailing Law; and in accordance with the doctrine announced by the Supreme
Court of Spain on October 29, 1857, above cited, the properties of this mayorazgo,
preserved de facto by the interested parties as entailed, legally retain this character
for the purposes of their partition, which must be effected in accordance with the
statute of October 11, 1820.
"From what has Been said it follows that since March 1, 1864, the date upon which
the said Disentailing Law came into force in the Philippine Islands, the successive
possessors of the properties of this mayorazgo constituted themselves trustees,
charged with the administration and preservation of the said properties and the
distribution of the fifth of the revenue among the descendants of the younger children
of the founder. Consequently, after the entail was abolished, one-half of the four-fifths
of the properties of themayorazgo continued subject to the trust in favor of its
beneficiaries, the heirs of Jose Victoriano Tuason, who was the one called to succeed
immediately to the mayorazgo on the date of its disentailment (article 2, Statute), and
the fifth of the said properties in favor of the beneficiaries, the recipients of the fifth of
the revenue in accordance with the foundation.
"Summing up the effects produced with respect to this mayorazgo by the Disentailing
Law on the one hand, and the conduct of the interested parties on the other, we may
say first, that the trust of the naked ownership instituted in favor of the descendants of
the founder indefinitely was abolished, in consequence of the disentailment; and
second, that the trust of the usufruct of the properties became converted into a trust
of the properties themselves, the beneficiaries being the same, but as owners; that is
to say, the first-born successor as to one-half of four-fifths of the said properties, and
the descendants of the younger children of the founder with respect to the remaining
fifth." (Ibid., pp. 936-938.)
"Resolving, therefore, said motion for reconsideration, we reiterate the following
conclusions, declaring finally:
*******
" (5) That the fifth of the properties into which, by virtue of said law, the fifth of the
revenue was converted on March 1, 1864, when the Disentailing Law became
effective in the Philippines, has remained and subsists as a fideicomiso up to the
present date.
*******
"(7) That the registration of the entailed properties under Act No. 496 must, with
respect to the fifth of the said properties conserved up to the present time as
a fideicomiso, be held to have been made in favor of the beneficiaries of said fifth
part.
" (8) That the plaintiffs, as well as any other descendants of the founder, are entitled
to participate in the fifth of the properties of this mayorazgo in accordance with the
sixth clause of the deed of foundation and article 4 of the Disentailing Law." (Ibid., pp.
963, 964.)
The arguments now advanced by the appellants in support of their second assigned
error are not entirely new because they were already brought out when the question
was submitted and discussed in the principal case and we do not find therein any
weighty reasons justifying our repudiation of the conclusions and principles
established in the decision rendered in the original case.
The third, fourth, fifth, and sixth assigned errors may be jointly considered because
they all refer to the distribution of the one-fifth of the properties. In the paragraphs
hereafter quoted of the original decision, it will be seen that the distribution of the fifth
and those entitled to it under the instrument of foundation were already dealt with and
resolved:
"PERSONS ENTITLED TO THE REMEDY
"The recipients of the fifth of the revenues are indicated in the sixth clause of the
instrument of foundation, the text of which we again transcribe:
" 'It shall be his duty to set apart one-fifth of the net revenue derived from the entail
each year, and that one-fifth part shall be divided into eight parts, giving one to each
of my eight children, and in their absence, to my grandchildren, but upon the
understanding that if one or more of my children should die without succession, the
part belonging to them shall be distributed among my grandchildren and other
descendants of mine according to their needs and as prudence may dictate to him, so
that, when the time arrives that none of my children or grandchildren are alive, it shall
then be always understood that said fifth part shall be applied to all those of my
descendants who are poor, the apportionment to be made by him prudently according
to their needs and therefore the possessor of the entail is hereby charged to
discharge this duty with conscientious scruple.'" (Ibid., pp. 941, 942.)
*******
"If the descendants of the younger children, subsequent to the grandchildren of the
founder, are granted under certain circumstances the right to possess
the mayorazgo itself, with all its properties, we do not see how it can be said that
these descendants, subsequent to grandchildren, the sons of sons, were prohibited
from receiving a fifth of the revenues of said properties.
"It is our understanding that the intention of the founder was not to restrict the grant of
the usufruct of the fifth of the revenue by limiting it to a certain number of generations
of the younger children, but that he intended to extend it to all of the descendants of
the latter. If this is so we should apply to the case the rule of law of the Partidas (Rule
28, Title 34, 7th Partida), which says: 'Privilegia recipiunt largum interpretationem
voluntati consonan concedentis.' (Privileges are to be interpreted with liberality in
accordance with the will of him who grants them.)
"Furthermore, that the present plaintiffs are entitled to receive the fifth of the revenues
has been repeatedly recognized by the defendants when they purchased, in 1905,
from Don Jose Rocha y Ruiz, and in 1916 from Dona Remedios Aragon y Rocha their
respective participations in the fifth of the revenue, according to paragraph 16 of the
stipulation of facts, and when in the years 1917 to 1921 the said defendants delivered
to Don Antonio Maria Barretto y Rocha, and to Don Santiago, Don Julio and Don
Andres Rocha y Ruiz Delgado, and their sister, Dona Rosario; and in the years 1917
to 1922, to Dona Isabel, Dona Enriqueta, Dona Carmen, Don Antonio, Don Alfredo
and Don Clodoaldo Rocha y Pereyra, Don Francisco Beech y Rojo, Don Ciriaco, Don
Cayetano, Don Pablo Leon and Don Tomas Tuason, and to the minors Dona
Consuelo, Don Juan, Dona Rosario and Dona Carmen Tuason, and to Dona Victoria
Rufina, Dona Ana Consolacion Tuason and Dona Asuncion Romana Tuason widow
of Caballero, their respective participations in the fifth of the revenue, as appears from
the cross-complaint of the defendants, admitted in paragraph 8 of the stipulation of
facts.
"And it appears that the said Don Jose Rocha y Ruiz was the son of Don Lorenzo
Rocha, a grandson, in turn, of Dona Gregoria N. Tuason (Exhibit 6 and paragraphs 2
and 16 of the stipulation of facts); that Dona Remedios Aragon y Rocha is a relative
of the founder (Exhibit 7, admitted in paragraph 16 of the stipulation of facts); and that
the said recipients of the fifth of the revenue from the year 1917 to 1921 and from the
year 1917 to 1922, are all descendants of grandchildren of the younger children of the
founder. (Paragraphs 2 to 30, admitted in paragraph 1 of the stipulation of facts.)"
(Ibid., pp. 944, 945.)
 *******
"Passing to the amount of the participation which is due them respectively, for the
purpose of determining this point we must have regard to the intention of the founder,
as it is expressed in the instrument creating the mayorazgo. It was his will that the
fifth of the revenue should be divided into eight parts, and that to each of his children,
other than his first born, one part should be given. Upon the death of each of these
children, by virtue of the provisions of the instrument of foundation, and by operation
of law, their right to an eighth part of the revenue which they received during their
lifetime was transmitted to their heirs. That is, each of these eight portions of the fifth
of the revenue was transmitted from succession to succession, within the stirps of
each of the eight younger children who died leaving succession. The heirs of a
younger son or daughter could not legally participate in the eight part corresponding
to another stirps, as long as heirs in the direct line of this stirps survived; that is to
say, each of the eight portions of the fifth, except those corresponding to younger
children born without succession. The heirs of a younger child could not legally
participate in the eight corresponding to another stirps, while heirs of this stirps in the
direct line survive. That is to say, each one of the said eight parts of the fifth, except
those corresponding to the younger children dying without succession, was preserved
and transmitted from generation to generation within each respective stirps.
"This plan of division of participation, based upon the will of the founder and the
precepts of the law, is that which in our judgment must continue to prevail, and is that
which we shall follow in determining the proportion which corresponds to the plaintiffs
in the half of the fifth of the properties of this foundation.
"Of the eight younger children four died without succession and the other four are the
descendants of the plaintiffs in this cause. Hence, four of the eight portions, that is,
one-half of the fifth of the properties of this foundation, belong to the plaintiffs herein
under the plan of division which has just been indicated. The other four portions, that
is, the remaining one-half of the said fifth, which would have corresponded to the
stirps of the other four younger children, if they had died leaving succession, accrue,
so to speak, both to the descendants of the younger children leaving succession and
to the other descendants of the founder.
"The distribution of this accretion is made in obedience to a plan distinct from that
above indicated, because the founder, foreseeing the contingency, did not prescribe a
quota for each stirps of his younger children, but ordered that it be delivered to
descendants of both classes, without distinction of line or stirps. Consequently, this
one-half in accretion should be distributed among the descendants of the founder in
general, who are the plaintiffs and some of the defendants, but bearing in mind the
different rights with which each heir participates, by reason of the greater or lesser
proximity of his relationship to the founder, for the purpose of determining if he is to
inherit per capita or per stirpes. We say some of the defendants, because with the
exception of the ten mentioned in paragraph 5 of the complaint, the other defendants
are either persons whose relationship has not been determined (paragraph 6 of the
complaint) or have refused to become parties to this action (paragraph 30 of the
complaint).
"From what has been said it follows that one-half of the fifth of the properties
corresponding to the younger sons leaving succession, four-fortieth parts (4/40) of the
whole of the properties of this foundation must be divided into four equal portions,
because one portion, or one-fortieth part (1/40) corresponds to each stirps of the said
four younger children. The other one-half of the said fifth, that is to say, the other four-
fortieth parts (4/40) of the whole of the properties of this foundation must be
distributed in general among the plaintiffs and some of the defendants, taking into
consideration the circumstances of their respective heirships." (Ibid., pp. 946-948.)
The foregoing paragraphs contain conclusions of fact and of law established after a
careful study of the provisions found in the foundation and of the laws applicable to
the case, and are squarely applicable to the facts recently proved at the new trial,
except that five-eighths of the fifth should be divided among the descendants of the
five (5) younger children with succession, and the remaining three-eighths of the fifth
among the relatives in general of the founder, because it developed that the younger
daughter Eustaquia Ma. Tuason had left heirs, contrary to the stipulation of the
plaintiffs and the defendants.
The arguments advanced by the appellants in support of said assignments of error do
not justify, in "our opinion, a different result from that already reached; in truth they
are merely repetitions of the same arguments already brought out by counsel for the
same appellants.
In the seventh assigned error, it is contended that the court erred in not reducing the
respective participations of the parties to figures or pesos. It is true that the court did
not undertake the arithmetical operations involved therein, but we cannot conceive of
this as an error subject to modification or reversal, in view of the fact that there was
then no necessity therefor, and that such work could be easily entrusted to the
referee after this decision has become final and the records remanded to the court.
By their eighth assigned error the defendants-appellants again reproduce their
original special defense to the effect that the plaintiffs could not convert the personal
action for damages which they had originally commenced into an action in rem, and
that said plaintiffs are barred from claiming any participation in the properties of the
mayorazgo.
This point was likewise considered and resolved in the decision in the principal case,
wherein it was said:
"In addition to the arguments mentioned heretofore, counsel for defendants interpose
as obstacles to the action of plaintiffs the registration of the title to the properties of
the mayorazgo in favor of the defendants, mentioned in paragraph 11 of the first
special defense, under Act No. 496, and the prescription of this action. The
defendants, Dona Paz Tuason de Gonzales, Dona Consuelo Tuason de Quimson,
Don Juan Tuason and Dona Albina Tuason interpose as a defense to this action the
contention that the plaintiffs filed no claim whatever in the proceedings had upon the
testamentary estate of Don Juan Jose Tuason de la Paz, the father of the said
defendants, which testamentary proceedings were finally disposed of and filed June
25, 1920.
"If, as we have found and decided, the successive possessors of the properties of
this mayorazgo were and have been mere trustees of the said properties, holding
them in trust for the benefit of the beneficiaries, part of whom are the recipients of the
fifth of the revenues, and their descendants, the registration of the title to said
properties under Act No. 496 in favor of the said defendants must be deemed to have
been effected for the benefit of the beneficiaries of said properties, part of whom are
the present plaintiffs. The doctrine established by this court in the case of
Severino vs. Severino (44 Phil., 343), is applicable to this feature of the case.
"Although the plaintiffs endeavored to demonstrate that the said defendants
registered the title by fraud, it is our opinion that the alleged fraud has not been
proven in this action. Nevertheless, the existence of fraud is unnecessary to warrant
the declaration that registration of the title under Act No. 496 is not a legal obstacle to
this action brought by plaintiffs, and the adjudication in favor of those among them
who are entitled thereto of the portion pertaining to them of the properties so
registered. It was said in the case of Gilbert vs. Hewetson (79 Minn., 326), cited with
approval in the case of Severino vs. Severino, supra:
" 'A receiver, trustee attorney, agent, or any other person occupying fiduciary
relations respecting property or persons, is utterly disabled from acquiring for his own
benefit the property committed to his custody for management. This rule is entirely
independent of the fact whether any fraud has intervened. No fraud in fact need be
shown, and no excuse will be heard from the trustee.' (Italics ours.)
"With respect to the plea of prescription, counsel for defendants contend that
inasmuch as plaintiffs, prior to the filing of the present complaint, had made no effort
to enforce their rights since the 1st day of March, 1864, their action is barred. But
from the records it appears that up to the year 1922 the defendants have been
recognizing in the entries in their books, and in deeds, such as Exhibits 6 and 7,
signed by Don Augusto Tuason de la Paz, as grantee, the rights of the descendants
of the younger children of the founder to the fifth of the revenue, and therefore the
trust which this charge implies; furthermore, said defendants made payments on
account of the fifth of the revenue. These acts of recognition and payments, made
during the said period of time, prevent the operation of prescription. Section 50, Code
of Civil Procedure.)
"Furthermore, this being a case which deals with a trust which subsisted from the time
of its foundation and by virtue thereof up to March 1, 1864, and thereafter down to the
present time by the express will of the present parties, the defense of prescription
cannot be entertained. By virtue of the said trust the possession of the said
defendants could not be regarded as a basis for an acquisitive prescription in their
favor against the plaintiffs because such possession has not been nor is it under
claim of ownership, but a title held in the name and on behalf of the beneficiaries,
some of whom are the plaintiffs in general. For this reason the defense of prescription
cannot be enforced between the trustee and the beneficiaries while the trust relations
continue, as was impliedly held in the case of the Government of the Philippine
Islands vs. Abadilla (46 Phil., 642.)" (Ibid., pp. 938-940.)
Strictly speaking there was no alteration in the nature of the action then commenced
by the plaintiffs. They claimed indemnity for damages in the amount of half a million
pesos believing that the registration of the real properties of the mayorazgo in favor of
the defendants and the issuance of the corresponding certificates of title, made the
latter the exclusive owners thereof; but this court held that a trust being involved, the
titles should be understood as issued in favor of all the co-proprietors, among them
the plaintiffs, and in view of this ruling the plaintiffs were declared entitled, not to an
indemnity, but to a participation in one-fifth of the aforesaid properties. From this it
follows that, although the plaintiffs were granted a relief different from that they had
asked for, the rights which they invoked from the very beginning and upon which they
based the action which they began, were, nevertheless, the same, to wit, their rights
as relatives or descendants of the founder of the mayorazgo. They erred in the choice
of the remedy to which they were entitled, but they did not change the essential
ground of the action. In either case the right which they wanted to enforce was the
same, but it developed that the adequate remedy was not the one they asked for but
that granted to them by the court.
In their ninth assigned error the appellants contend that the court erred in declaring
null and void as to one-half the sales of their participations executed by the
intervenors Mariano Arenas, Estanislaoa Arenas, Julio Tuason, Severino Tuason,
Encarnacion Rojo, and Candelaria Rojo in favor of the said defendants-appellants.
The referee in fact declared said sales null and void as to one-half, either because the
vendors were the ones who received the revenue or because they had immediate
successors at the time the Disentailing Statute took effect in the Islands. The court
sustained the referee.
Without going into an extended discussion, we rule that the said intervenors-vendors
cannot now question the validity of the aforesaid sales because their action has
prescribed and they are now in estoppel by laches. All that we said in this connection
in the appeal of the Legardas may be taken as reproduced herein. The most recent
sale was made in 1916 and the first complaint of intervention questioning the validity
of the sales was filed in 1926, that is, after the lapse of more than ten years. During
all this time the defendants were in the enjoyment of the said participations without
any protest or claim of any kind from any of the vendors. The time that has elapsed is
more than that required for the prescription of the action to annul the sales, and
estops the intervenors-vendors from questioning their validity.
We find the error assigned tenable.
The tenth assigned error requires no discussion because it was made conditionally,
that is, in the event that the preceding one is not well-founded and is not sustained.
Various intervenors or their predecessors sold their participations in the fifth of
the mayorazgo which came from the younger children with succession as well as
from those without succession, in favor of the defendants. The referee last appointed
was of the opinion that the sales of the participations which came from the younger
children with succession, were valid, but not those which came from the younger
children who died without succession. In its decision the court disapproved this
conclusion and held that all the sales were valid. But in its order of April 8, 1931, in
passing upon different motions of reconsideration, it concurred in the opinion of the
referee and ruled that the sales of the participations coming from the younger children
without succession were null and void because undetermined rights were transmitted
thereby.
We rule that the eleventh assigned error is well founded and that the sales in question
are as valid as those made of the participations coming from the younger children
with succession. And on this point we repeat what we already said in the appeal of
the Legardas, in resolving a similar case, that pursuant to the provisions of article 657
of the Civil Code, successory rights are transmitted from the death of the person
leaving the hereditary estate, wherefore, it cannot be said that in the aforementioned
sales undetermined rights were conveyed. It is true that on the dates of the sales, the
amount of the participations sold were not yet determined, but doubtless it could be
fixed and reduced to figures through the appraisal and liquidation provided for by the In case G. R. No. 36827
Disentailing Statute.

The twelfth and last assigned error states that the court should have required the 1. That the aforesaid appealed decision, in so far as it has been affected by the
referee to file an amended report pursuant to the order of April 8, 1931. The error, if appeal interposed by the intervenors-appellants in this case, is hereby
any, is no ground for either modification or reversal. There is no doubt that the referee affirmed;
should file his amended and final report, but this may be prepared and submitted for
approval after the appeals have been disposed of and the present decision has In case G. R. No. 36840
become final. We find no merit in this assigned error.
1. That the decision of the court is hereby affirmed in so far as it has been
Summarizing what has been said in connection with this appeal we have:
affected by the appeal interposed in this case by the intervenors-appellants
Estanislaoa Arenas and others;
1. That the first, second, third, fourth, fifth, sixth, seventh, eighth, tenth, and
twelfth assigned errors are without merit and must be as they are hereby
In case G. R. No. 36872
overruled;

2. That the sales executed by Mariano Arenas, Estanislaoa Arenas, Julio
Tuason, Severino Tuason, Encarnacion Rojo and Candelaria Rojo in favor of
the defendants are valid in their entirety; thereby sustaining the ninth
assigned error; and
3. That the sales executed by certain intervenors or their predecessors of their
participations coming from the younger children without succession, in favor
of the defendants, are valid; thereby sustaining likewise the eleventh
assigned error.
JUDGMENT
In view of all the foregoing considerations, and disposing finally of all the appeals
interposed, it is ordered:
In case G. R. No. 36811
1. That the appealed decision and order are hereby amended, in the sense that
the sales executed by Mariano Arenas, Estanislaoa Arenas, Julio Tuason,
Severino Tuason, Encarnacion Rojo, and Candelaria Rojo, in favor of the
defendants-appellants, are valid in their entirety, and consequently, the
participations transferred thereby should be adjudicated to the said
purchasers;
2. That the said appealed decision and order be amended, in the sense that
the sales executed in favor of the defendants-appellants of the participations
coming from the younger children without succession, are valid in their
entirety, and, therefore, said participations should be adjudicated in favor of
said* defendants-appellants; and
3. That the said decision and order in so far as they have been affected by the
appeal interposed in this case but have not been modified, are hereby
affirmed.

1. That the appealed decision and order be amended, in the sense that the
sales executed by Tomasa Tuason de Tobias, Luis Tuason, and Pedro It is likewise ordered that the court of origin take the necessary steps looking to the
Tuason, in favor of the intervenors Legarda, are valid, and that the adjudication and distribution among the parties entitled thereto of their respective
participations sold thereby should be adjudicated in favor of said purchasers participations, to the end that this mayorazgo case may be definitely closed.
;
Without costs in this instance. So ordered.
2. That the appealed decision and order be modified, in the sense that the
Avancena, C. J., Malcolm, and Villa-Real, JJ., concur.
sales executed in favor of the intervenors Legarda of the participations
coming from the younger children without succession, are valid, and,
consequently, said participations should be adjudicated in favor of the said
intervenors;

3. That the appealed decision and order be modified, in the sense that the
participation of Dorotea Tuason, as descendant of Santos Luciano Tuason, [1] Tuason vs. Concepcion
should be adjudicated in favor of the intervenors-appellants, and

4. That the appealed decision and order, in so far as they have been affected
by the appeal interposed but have not been modified, are hereby affirmed;
 CONCURRING
STREET, J., :
In view of the fact that our order granting a new trial, reported in Barretto vs. Tuason
(50 Phil., 888, 966), is considered by the court to be so limited as to prevent further
consideration of the fundamentals, I deem it unnecessary to repeat the considerations
which led me to dissent in part from the conclusions reached at the former hearing,
and I therefore now concur.
HULL, J., with whom concur GODDARD and DIAZ, JJ., concurring:
I am constrained to concur in the result, feeling bound by the law of the case as it
exists in this jurisdiction. (See Compagnie Franco-Indochinoise vs. Deutsch-
Australische Dampschiffs Gesellschaft, 39 Phil., 474, and Zarate vs. Director of
Lands, 39 Phil., 747.)
If I were free to vote on the merits, I would deny all relief to plaintiffs.
DISSENTING
ABAD SANTOS, J.,
I regret that I am unable to agree with the prevailing opinion in this case which is not
only well-written but manifests a conscientious and painstaking labor. In my judgment,
however, it suffers from one vital defect which is that of having assumed as correct
and binding the rulings laid down and conclusions reached in Barretto vs. Tuason (50
Phil., 888). I am of the opinion (1) that these rulings and conclusions are
fundamentally erroneous, and (2) that this court is not bound by them.
1. Granting that, as held in the case cited, the mayorazgo involved in this case
as a family trust, the trust ceased on March 1, 1864, when the Disentailing
Law of October 11, 1820, became effective in the Philippines. As declared
by this court in that case on page 936: "But the entail could not and cannot
continue perpetually. Its abolition was decreed by the statute as of the 1st
day of March, 1864. Its perpetual survival would be contrary, not only to the
Disentailing Law of October 11, 1820, but also the Civil Code in force which,
under articles 781 and 785, paragraph 2, positively prohibits perpetual
entails." After March 1, 1864, the trust, as such, could not legally exist,
irrespective of the subsequent conduct of the parties concerned.
The effect of the Disentailing Law was to vest in the cestui or beneficiary both the
beneficial and legal ownership of the trust property, subject only to the conditions
prescribed under articles 2 and 3 of the Law as to the right of alienation. This gave
the cestui his heirs or assigns, the right to possession of the trust property. The
exercise of this right was subject to the law on the prescription of actions for the
enforcement of rights of such nature. The record shows that the original action in
these cases was not brought until August 2, 1923, long after the statute of limitations
had run against it.
Even granting that after the termination of the family trust, a resulting trust arose by
reason of the subsequent conduct of the parties concerned, it appears from the
stipulation of facts that such a resulting trust was repudiated ten years prior to the
filing of the original complaint in these cases; and, by the prevailing cases, the
general statutes of limitations are applicable to resulting trusts. (39 Cyc, 606.) "It is
generally held that the rule that the statute of limitations does not run in favor of a
trustee against the cestui que trust applies only to express trusts, and that implied or
constructive trusts are within the operation of the statute, so that a suit to impose and
enforce such a trust may become barred. Thus 'whenever a person takes possession
of property in his own name and is afterward by matter of evidence or by construction
of law changed into a trustee', the statute may be pleaded. This is true a fortiori where
plaintiff seeks his remedy in a court of law having no equity jurisdiction. In the case of
a constructive or implied trust, except where the trust is imposed on the ground of
fraud which is not immediately discovered, or there has been a fraudulent
concealment of the cause of action, the statute begins to run in favor of the party
chargeable as trustee from the time when the wrong is done by which he becomes
thus chargeable, or the time when the beneficiary can assert his rights; not from the
time when demand is made on the trustee, or the trust is repudiated by him, for no
repudiation of an implied or constructive trust is ordinarily necessary to mature a right
of action and set the statute in motion." (20 Cyc, 1155-1158.)
2. This court is not bound by the rules laid down and conclusions reached in
Barretto vs. Tuason, supra. In this connection, it should be observed at the
outset that nothing has been adjudicated in that case. It is true that, at first,
an adjudication was made therein, but on motion for a reconsideration it was
ordered:
*******
" (b) That the dispositive part of our decision in this cause be set aside.
" (c) That the record in the present case, together with the petitions of intervention
mentioned, be returned to the Court of First Instance of Manila in order that the new
parties may intervene in this cause and prove their alleged rights, and that the original
plaintiffs may, if they so desire, amend their complaint.
*******
" (e) That said Court of First Instance proceed to try this cause and render judgment
as to the amount to which the original parties and those who may intervene may be
entitled as their participation in the fifth of the properties of this mayorazgo."
*******
It seems clear, therefore, that the case should not as it in fact does not, constitute a
precedent.
Moreover, it should be borne in mind that the common law doctrine of stare
decisis has not been strictly followed in this jurisdiction. What has been followed here
is the American theory of precedent which recognizes that "Case Law is not wholly
bound by the rules of past generations. It is a 'myth of the law', that stare decisis is
impregnable or is anything more than a salutary maxim to promote justice. Although
'certainty is the very essence of the law', the law may be changed by the courts by
reversing or modifying a rule when the rule has been demonstrated to be erroneous
either through failure of adequate presentation of proper consideration, or
consideration out of due time of the earlier case, or when 'through changed conditions
it has become obviously harmful or detrimental to society.'" (Pound, "Some Recent
Phases of the Evolution of Case Law", Yale Law Journal [1922], vol. XXXI, pp. 361,
363.)
In Hertz vs. Woodman (218 U. S., 205, 212; 30 Sup. Ct, 621, 622 [1910]), the
Supreme Court of the United States, through Justice Lurton said: "The Circuit Court of
Appeals was obviously not bound to follow its own prior decision. The rule of stare
decisis, though one tending to consistency and uniformity of decision, is not inflexible.
Whether it shall be followed or departed from is a question entirely within the
discretion of the court, which is again called upon to consider a question once
decided."
And in Adams Exp. Co. vs. Beckwith (100 Ohio St., 348, 351, 352; 126 N. E., 300,
301 [1919]), the Supreme Court of Ohio said: "A decided case is worth as much as it
weighs in reason and righteousness, and no more. It is not enough to say 'thus saith
the court.' It must prove its right to control in any given situation by the degree in
which it supports the rights of a party violated and serves the cause of justice as to all
parties concerned."
The present tendency of American decisions is strongly away from the strict English
doctrine of stare decisis, and towards the civilian theory of precedents. (Goodhart,
Essays in Jurisprudence and the Common Law, pp. 50, 51, 65.) The civilian theory,
as exemplified by the French practice, has been stated by Prof. Lambert of the
University of Lyons in an article published in the Yale Law Journal: "In France, the
judicial precedent does not, ipso facto, bind either the tribunals which established it
nor the lower courts; and the Court of Cassation itself retains the right to go back on
its own decisions. The courts of appeal may oppose a doctrine proclaimed by the
Court of Cassation, and this opposition has sometimes led to a change of opinion on
the part of the higher court. The practice of the courts does not become a source of
the law until it is definitely fixed by the repetition of precedents which are in
agreement on a single point." ("The Case Method in Canada and the Possibilities of
its Adoptation to the Civil Law", Yale Law Journal [1929], vol. XXXIX, pp. 1, 14.)
In a recent case, speaking of the doctrine of stare decisis, this court said:
"Is the court with new membership compelled to follow blindly the doctrine of the
Velasco case? The rule of stare decisis is entitled to respect. Stability in the law,
particularly in the business field, is desirable. But idolatrous reverence for precedent,
simply as precedent, no longer rules. More important than anything else is that the
court should be right. And particularly is it not wise to subordinate legal reason to
case law and by so doing perpetuate error when it is brought to mind that the views
now expressed conform in principle to the original decision and that since the first
decision to the contrary was sent forth there has existed a respectable opinion of non-
conformity in the court. Indeed, on at least one occasion has the court broken away
from the revamped doctrine, while even in the last case in point the court was as
evenly divided as it was possible to be and still reach a decision." (Philippine Trust
Company and Smith, Bell & Company vs. Mitchell, p. 30, ante.)
In conclusion, I believe that whatever rights of action the plaintiffs in these cases
might have had, have either been barred by laches or prescribed. Hence they should
take nothing by their actions.
BUTTE, J.,
DISSENTING
I am of the opinion that the assignments of error of the defendants-appellants
numbered 1, 2, 3, 4, 5, 6 and 8 should be sustained and I, therefore, dissent.
A Torrens title was issued to the defendants-appellants in 1915 under the provisions
of the Land Registration Act (Act No. 496). This court has repeatedly held that such
titles are final, irrevocable and incontestable.
From 1878, when Dona Teresa de la Paz succeeded to the estate of her child, Jose
Victoriano Tuason, she held possession as owner until her death in 1890 when the
property passed to the defendants all of whom are direct descendants of Dona
Teresa de la Paz. From 1878 to 1923 when the present action was commenced that
is for forty-five years, the defendants and their predecessors in title held possession
as owners. They have, therefore, acquired a title by prescription. (Articles 446, 447,
1959 and I960, Civil Code. See also Kincaid vs.Cabututan, 35 Phil., 383, 406.)
The sixth clause of the instrument creating this estate tail (mayorazgo) dated
February 25, 1794, did not create a family trust. Nor is there any evidence showing
that the appellees or their predecessors in title come within the language of the sixth
clause of that instrument which, at most, might be construed to be a precatory trust.
Nor was that precatory trust indeterminable. The possible beneficiaries thereof no
longer existed in March 1, 1864, when the Spanish Statute of Disentailment was
extended to the Philippine Islands. It is to be noted that article 4 of the Statute of
Disentailment provided for the termination of family trust.
The Statute of Disentailment, effective in the Philippines on March 1, 1864, abolished
estates tail and provided that all properties entailed are restored to the class of
absolutely free properties. The possessors of entailed estates were empowered at
once to freely dispose of one-half of the entailed property, the other half to pass to the
immediate successor to the title, who was empowered to dispose of it freely as
owner. Under these provisions, after the death of Jose Severo Tuason on February 3,
1874, and Jose Victoriano Tuason, his heir, on January 25, 1878, Teresa de la Paz
took the title in fee simple to all the properties involved in this entailed estate. The
plaintiffs, who at this late date seek to impress said title with a trust, are guilty of
extreme laches.
The Torrens title issued to the defendants in 1915 should be sustained.
VICKERS, J.:
In the above entitled cases I voted to affirm the decisions of the lower court, with the
modifications proposed by the ponente, and I hereby authorize the Chief Justice or
the Justice acting in his place to certify that I voted in said cases as hereinabove
stated.

I certify that Justice J. C. Vickers took part in the consideration of the above
enumerated cases, and voted to affirm the appealed decision, as modified in the
prevailing opinion. AVANCENA, C. J.
G.R. No. 72837 April 17, 1989
ESTER JAVELLANA, ROLANDO DEMAFILES, CESAR CRUZADA and ANTONIO
SISON, petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT, 4th CIVIL CASES DIVISION,
MARSAL & CO., INC., and MARCELINO FLORETE, SR., respondents.
PARAS, J.:
Before Us is a Petition for certiorari to review the Decision 1 dated August 14,1985
promulgated by respondent Intermediate Appellate Court in AC-G.R. C.V. No. 03781
which set aside the decision 2 rendered by the Regional Trial Court, 6th Judicial
Region, Branch XXVI, Iloilo City, dated December 15, 1983 in Civil Case No. 12791.
The case at bar arose from a complaint for recovery of damages filed by Marsal &
Co., Inc. and Marcelino Florete, Sr. (private respondents herein) against defendants
Jose C. Hernani, Ester J. Javellana, Rolando Demafiles, Cesar Crusada and Antonio
Sison for allegedly denying plaintiffs' access to, and use of a canal leading to
plaintiffs' property and to enjoin the City Mayor and City Engineer of Iloilo City from
demolishing the existing structures within plaintiffs property serving as dike entrance
gate to said canal situated at Barangay Navais, Mandurriao, Iloilo City. Before the
pre-trial conference the complaint as against the City Mayor and City Engineer, was
dismissed at the instance of plaintiffs on the ground that said defendants had agreed
not to demolish the pendency of the action.
At the pre-trial conference, on June 5,1979 the parties stipulated:
... (1) that plaintiff Marsal & Co., Inc., is presently the owner of the
parcel of land adjoining the Iloilo River up to and adjacent the lot
where the L. Borres Elementary School is located at Barangay
Navais Mandurriao, Iloilo; (2) that in 1961, when Marcelino Florete,
Sr. was still the owner of said Marsal property having acquired the
same by purchase from its former owners sometime in 1959, there
existed a main canal from the Iloilo River cutting across said
property towards the lot where the said school is located and thru a
canal that traverses the school premises going towards Lot 2344;
(3) that sometime in July 1978, plaintiffs closed the dike entrance of
the main canal to the canal running across the L. Borres
Elementary School premises to Lot 2344; (4) that on petition of
school P.T.A. officials of Barangay Navais, an ocular inspection of
the premises was made as a result of which a report dated
November 7, 1978 was prepared and submitted by 2nd Asst. City
Fiscal Serafin Abogado; (5) that before 1971, there were no houses
standing within the school compound and premises of L. Borres
Elementary School; (6) that at present, there are 15 to 16 houses in
the said school compound one of which is the house of the
barangay captain of Barangay Navais; (7) that some of those who
signed the petition (Exh. "7") are not residents or occupants of the
houses within the school compound; (8) that the photograph (Exh.
"A") is the aerial photograph of the premises in question showing
the location of the L. Borres Elementary School, the properties of
the plaintiffs, the Iloilo River and the Borres property; (9) that the
plaintiffs had demolished the dike connecting the main canal in
plaintiffs' property with the canal running thru the school premises
toward 2344; and (10) that defendant Director Jose C. Hernani had
invited plaintiff Marcelino Florete, Sr. for conference concerning the
complaint of the residents of Barangay Navais on July 28, and 31,
1978 as per Exhs. "9" and "10" (pp. 35-36, Rollo)
The issues as defined by the parties are:
(1) Whether or not them main canal and the canal traversing the
premises of the L. Borres Elementary School going towards Lot
2344 existing only beginning 1961 as claimed by the plaintiffs or
since time immemorial as contended by the defendants; (2)
Whether or not it was plaintiff Marcelino Florete, Sr. who had
constructed the main canal as well as the canal running thru the
premises of the L. Borres Elementary School to Lot 2344; (3)
Whether or not the closing of the dike entrance connecting the main
canal with the canal running thru the school premises caused the
flooding of the premises of L. Borres Elementary School and its
vicinity; (4) whether or not an easement or servitude of water-right-
of-way was constituted on the property of the plaintiffs as servient
estate in favor of the L. Borres Elementary School land and nearby
lands as dominant estates; (5) Whether or not defendants acted in
their respective private or official capacities in dealing with the
problem related to the canals in question; (6) Whether or not the
defendant Ester Javellana had denied plaintiffs the use of the canal
running from the main canal thru the school premises to Lot 2344 of
the plaintiffs; (7) Whether or not the demolition or closure by
plaintiffs of the entrance-dike connecting the main canal with the
canal running thru the L. Borres Elementary School preventing the
free flow of water to and from the school premises and vicinity
violates the provisions of Presidential Decree 296; and (8) Whether
or not either party may be held liable to the other for damages.
(Rollo, pp. 35-37)
After due trial, judgment was rendered by the trial court, the dispositive portion
reading as follows:
WHEREFORE, judgment is hereby rendered dismissing plaintiffs'
complaint.
On defendants' counterclaim, the plaintiffs are hereby ordered to
restore and reopen the dike entrance connecting the main canal
with the canal running thru the premises of L. Borres Elementary
 School and to demolish any and all structures within plaintiffs'
property that impede the free flow of water to and from the Iloilo
River thru the said canals.
Further, plaintiffs Marsal & Co., Inc. and Marcelino Florete, Sr. are
hereby ordered to pay, jointly and severally, each of the
defendants, Jose C. Hernani, Ester J. Javellana, Rolando
Demafiles, Cesar Cruzada and Antonio Sison, the following sums,
to wit: (1) P10,000.00 for moral damages and (2) P2,500.00 for
exemplary damages and (3) P2,500.00 for and as attorney's fees of
the total sum of P15,000.00 each, plus costs.
SO ORDERED.
(P. 46, Rollo)
Not satisfied with said judgment, plaintiffs appealed to the Intermediate Appellate
Court which rendered the assailed decision, its dispositive portion stating as follows:
WHEREFORE, finding the decision appealed from not consistent
with the facts and the law applicable, the same is hereby set aside
and another one entered-
1. Granting the issuance of the writ of preliminary injunction sought
in the complaint to become permanent upon the finality of this
decision;
2. Ordering the defendants-appellees to respect plaintiffs' rights and
to refrain from demolishing and/or causing the demolition of the
dikes built by plaintiff (Florete, Sr.) on his property;
Costs de oficio.
SO ORDERED. (pp. 57-58, Rollo)
Petitioners contend that the decision of the Appellate Court is contrary to law, its
conclusions based entirely on speculations and conjectures and there is grave abuse
of discretion in that the findings of fact are without competent evidence to support
them. Petitioners argue that the respondent Appellate Court erred in holding:
I Maranon family from whom Florete, Sr. acquired the land, in
That the canal in question was built by plaintiff-appellant purposely
to make water available to its own Lot 2344. (Decision, p. 8)
II
That the plaintiff-appellant is the one that has the right of easement
upon the lot occupied by the barrio school. Plaintiff-appellant is thus
the dominant estate and not the L. Borres Elementary School.
(Decision, p. 8)
III
That the school, in violation of the said easement, allowed other
parties to use the canal for salt production in competition with the
salt business of plaintiff-appellant which is conducted in Lot 2344.
(Decision, p. 8)
IV
That the canal which traverses plaintiff's property never benefitted
the school. It was only after plaintiff built the canal starting from its
fishpond up to its other property that the school benefited from the
water coming from the river. (Decision, p. 10)
V
That aside from the plaintiff's property there is another parcel of
land which is more than adequate to provide the drainage sought
by the defendants and this is the Borres property. (Decision, p. 10)
The petition is worthy of consideration. In the Appellate Court's decision, it is noted
that said court relied heavily on the findings of facts of the trial court even to the
extent of quoting such findings in its decision in support of its ruling. However, the
conclusions reached by both courts were different. Petitioners now question the
correctness of the conclusions drawn by the respondent Court of Appeals from the
proven facts enumerated by the trial court. This determination as to the correctness of
the conclusions drawn from the pleadings is a question of law which this Court is
authorized to pass upon. There is no question of fact here because the facts are
admittedly proven. Said facts are reproduced hereunder:
The Court finds from the evidence that the main canal had been in
existence long before defendant Marcelino Florete, Sr. acquired
ownership of the land thru which the same passes from the Iloilo
River up to the premises of what is now known as the L. Borres
Elementary School. This fact was clearly brought to light by the
testimonies of at least three witnesses, including a member of the
addition to the testimony of defendant Antonio Sison, Barangay
Captain of Barangay Navais where the subject canal is situated.
The Court, indeed, finds no reason to doubt the testimonies of
these witnesses not only because they ring true throughout but also
because the same emanate from reliable sources who had been
actual residents of the place, having had occasions to take their
bath in the same canal and with separate individual experiences
incident thereto to relate.
Severo Maranon, a public school teacher and one of the children of
the late Buenaventura Maranon, a co-owner of the fishpond
purchased by plaintiff Florete, Sr. testified that as early as 1948,
when he was about 6 years old, he already knew the subject canal
that passes thru their fishpond at Barangay Navais from the Iloilo
River towards the premises of the school. On one occasion in 1954,
while taking a bath in this canal when still a young boy, he nearly
drowned, reasons for which he has not forgotten the said canal.
Another witness, Ignacio Gencianeo, 75, a former employee of the
Bureau of Public Highways, testified that when he was still single,
being a resident of Barangay Navais, he used to take a bath in the
canal near the Iloilo River which is deeper than the other portions.
He recalled an incident where a woman, named Toribia Tajaon,
while picking shells at the sides of the dikes, fell into the canal and
nearly got drowned had he not helped her. He last took a bath in
the canal in 1937 before he got employed at the Bureau of Public
Highways.
Witness Gencianeo also testified that he was then the Barrio
Captain of Navais when the Barrio School was constructed in 1940
on the land owned by Lucas Borres.
Francisco Regacho, 56, testifying for the defendants, declared that
in 1948, his house was located beside the canal near the Iloilo
River and the land thereat was then owned by Buenaventura
Maranon. When the barrio school was constructed in 1940, he
worked filling sand on the school site. He was able to lease the
school fishpond from 1973 to 1977. This fishpond draws its supply
of salt water from the canal coming from the Iloilo River. He had
previously worked this main canal in 1948 as part of his job in the
fishpond of Buenaventura Maranon fixing its dikes in order to make
water flow freely towards the fishpond of the Maranon family.
Witness Regacho further declared that when defendant Marcelino
Florete, Sr. became owner of this Maranon fishpond, he was able
to work on this canal where he dug the canal deeper up to Florete's
land. He testified that during high tide the water in the canal was
only about 1/2 meter deep and there was no water during low tide
and so Florets made the canal deeper.
Regacho also testified that there are two canals within the school
premises, one going towards the land of Florete and the other to
the land of Mirasol. These two canals met at the place where
Florete closed the canal. The canal going towards Florete's land
and that to Mirasol's land serve to empty rainwater to the Iloilo
River. He further confirmed that the school fishpond has no other
source of salt water except from the canal that connect to the main
canal that starts from the Iloilo River.
For his part, defendant Antonio Sison, 54, testified that he was born
in Barangay Navais and has been its barangay captain since 1954
continuously up to the present. He first noticed the existence of the
canal in 1933 when he reached the age of reason at the age of 8
years, said canal being about 300 meters long from the Iloilo River
going towards the premises of the barrio school and to the land
now known as Lot 2344 owned by Marcelino Florete. He also used
to take a bath in this canal when still a small boy.
Defendant Sison further declared that the brothers Pedro and
Buenaventura Maranon were then the owners of the fishpond along
which the canal runs starting from the Iloilo River towards the
school premises when the Maranons sold the land to Florete
sometime in 1959. Florete was not the one who constructed the
canal but only made the same deeper.
This construction of Florete took place in 1961 when Sison was
also the barangay captain. He recalled Francisco Regacho was one
of those who worked in making the canal deeper at the instance of
Florete and that no employee from the City Engineer's Office
inspected the canal during its repair undertaken by Florete and
where Alfredo Emboltorio, as the one who managed the work in the
canal.
Defendant Sison went to see Pedro Maranon, who was once a co-
owner of the land where the main canal passes, to request him to
testify but the latter begged off by reason of his health and old age
and, instead, executed an affidavit dated May 14, 1979 (Exh. "8")
certifying to the effect that "since before the war until we sold the
said land to Marcelino Florete, there exists a canal from the Iloilo
River cutting our property down towards the lot where the school is
located and thru a canal that traverses the school premises. (par. 4.
Exh. "8")
It is thus clear from the testimonies of defendants' witnesses that
the main canal starting from the Iloilo River and the canal traversing
the premises of the L. Borres Elem. School going toward lot 2344
existed long before defendant Florete, Sr. acquired ownership of
the land of the Maranons and that, if at all, Florete merely caused to
be made deeper that portion traversing the school premises.
No less than the defendants' evidence itself proved the existence of
the main canal. Thus, in his letter dated June 26,1961 embodied in
Resolution No. 715 dated June 27,1961 of the Municipal Board of
the City of Iloilo (Exh. "B") defendant Florete Sr. asked that he be
allowed to build a canal within the premises of the barrio school up
to his Lot 2344. It is not, therefore, a permit to build a canal from
the Iloilo River for otherwise, Florete would have so stated in his
said letter to the Board. This is so because there already existed a
main canal from the Iloilo River. The canal traversing the school
premises was likewise then already existing but not so deep that
Florete wanted it constructed to be permanent. And in making this
canal deeper, he started not from the Iloilo River but from his
fishpond adjoining the school premises towards his lot 2344,
Florete testified thus:
Q. (Court) - From what point did you start?
A From our fishpond traversing the Borres
Elementary and then going to our lot. (TSN, July
5, 1979, page 22).
Defendants presented in evidence a blueprint copy of the Cadastral
Map. B. L. No. 3 (Exh. "F") to show that no natural waterway or
creek existed in the pre that connected the Iloilo River to the
fishpond premises. But this piece of evidence was rendered without
any probative value when plaintiffs also presented Teodoro
Simpas, Chief of the Surveys Division of the Bureau of Lands,
Region IV, who testified that creeks and esteros are delienated in
the cadastral map only if they are five (5) or more meters wide and,
even less than five (5) meters wide, if there is continuous flow of
water is to be determined by the surveyor who made the survey.
Here, it has been duly established that the canal in question
starting from the Iloilo River is only about 3 meters wide for the first
100 meters long and then measures about 2 meters wide until it
reaches Lot 2344 with a length of about 200 meters. And it has
been shown that salt water coming from the Iloilo River flows in the
canal during high tide where the water in the main canal reaches
about one-half meter and about two (2) feet in the canal that
traverses the school premises. In ordinary days, no water flows in
the canal that cuts a the school premises . This explains why the
canal in question was not indicated in the cadastral map during the
1913 survey. The canal is less than 5 meters wide and did not have
a continuous flow of water except during high tide and during rainy
season where it serves as drainage and empties flood waters into
the Iloilo River.
Defendants' closure of the dike's entrance connecting the main
canal with the canal running thru the school premises, therefore,
caused the flooding of the premises of the L. Borres Elementary
School and its vicinity. This is so because during rainy season, said
canal also serves as outlet of rain or flood waters that empties to
the Iloilo River. Witnesses Ignacio Gencianeo, Francisco Regacho,
Severo Maranon and Barangay Captain Antonio Sison were
unanimous in declaring so.
In his attempt to show that the closing of the dike entrance of the
canal did not cause the flooding of the school premises and its
vicinity, plaintiffs' witnesses Modesto Emboltorio, declared that
flood in the school fishpond immediately disappears because water
recedes to the Borres property. But it has been shown that the
adjacent Borres property is higher in elevation compared to the
school premises such that water in the school premises cannot flow
towards that area. And because water has no other way out except
thru the canal, the school premises and its vicinity get flooded once
it rains and flood waters remain stagnant for days as shown by the
photographs exhibits "3" and "3-A" taken on August 24,1978 and
Exhibits "10" and "10-A" taken on August 15, 1979. The said
photographs Exhibits "l 0" and "10-A" belied Emboltorio's testimony
that there were no flood waters in that area when he testified in
Court in the morning of August 14, 1979.
That the premises of the school and its vicinity were flooded when it
rained during the rainy season of 1978 immediately after the
closing of the dike entrance of the canal is further shown by the
report (Exh. "4") dated September 3, 1978 submitted by Carlos G.
Brasileno, Asst. Complaint & Acting Officer, Barangay City
secretariat and the 6th Indorsement (Exh. "'I") dated November
7,1978 of 2nd Asst. City Fiscal Serafin L. Abogado. These two
officials were with the government teams that conducted ocular
inspection of the place upon complaint of the residents therein and
they actually saw for themselves the flooded situation of the place
caused by plaintiffs' closure of the dike entrance of subject canal.
To be sure, the defendants acted in their official capacities in
dealing with the problem related to the canals in question. It has
been sufficiently established that the school fishpond gets its supply
of salt water directly from the Iloilo River passing thru the canal that
traverses the school premises. Likewise, the residents of the place
produce salt thru the use of plastic sheets using salt water drawn
from the canal. Salt water in this canal is fresh and clean as the tide
changes from the Iloilo River unlike in the fishpond nearby which is
stagnant and polluted and not suitable for salt- making.
The closure of the dike entrance of the canal deprived the school
fishpond as well as the residents of the place of salt-water and
placed the premises of the school and the surrounding vicinity in
danger of being flooded when it rains so that the school officials,
the defendants Ester Javellana, as district supervisor, Cesar
Cruzada as head teacher and Rolando Demafiles as practical arts
teacher and the barangay captain, Antonio Sison only did what
were incumbent upon them to do as such school and barangay
officials when they complained to higher authorities about the
plaintiffs' closure of the canal in question.
Indeed, there is no showing that the defendants school officials
were motivated by their own personal interests when they
complained against plaintiffs' action vis-a-vis the canal. Their effort
were all directed towards the benefit of the school as well as for the
school children who, in one way or another, had been adversely
affected by the closure of the canal. These officials did not act
privately for themselves but for public good and public interest.
They expected no personal benefit in return.
The same is true with the defendant barangay captain Antonio
Sison who merely complied with his duty extending assistance to
the residents of bringing their complaint to the authorities
concerned. It was his duty to attend to the needs and problems of
his barangay and its residents. The closure of the canal did not only
deprive the residents of salt water for salt- making but also posed
danger to them as in fact, during the ensuing rainy days in August
of 1978, the place was flooded thus endangering the health and
safety of the residents therein.
Then, too, defendant Col. Jose Hernani only did his duty as head of
the Office of Civil Defense in attending to the complaint of the
residents of the place. His office has jurisdiction over cases of
calamity, flood and the like such that it was but proper, nay
obligatory, on his part to act on their complaint against the closure
of the canal that caused flood in Barangay Navais
The fact is that plaintiffs are without any justifiable reason to close
the canal. Defendants advanced that the district supervisor,
defendant Ester Javellana, wrote Marcelino Florete Sr. a letter
allegedly denying his use of the canal that traverses the school
premises reason for which he closed the dike entrance and built an
underground canal on the other side of his property going to his Lot
2344. But defendant Javellana explained that there was no such
denial. What she meant when she wrote the letter to Marcelino
Florete, Sr. was that plaintiffs could not lay pipes underneath the
canal. Defendant Ester Javellana testified thus:
Q Could you inform the Hon. Court Mrs.
Javellana what impelled you to write Mr. Florete
this letter?
A My head teacher informed that they were going
to lay or buy a 10 inch pipe in the canal which
crosses the school that canal to my office one
morning Feb. 22. Industrial Arts Teacher Mr.
Rolando Demafiles and the Head Teacher, Mr.
Cesar Cruzada. They were excited. There was
already a 10 inch rubber tube running from Iloilo
River crossing to the school to the bed of Mr.
Florete. That they intend to bury and so I
accompanied them to L. Borres Elementary
School and saw for myself that there really was a
10 inch or 8 inch rubber pipe running across the
school and was about to be buried.
Q Why? Can you explain what would be the
disadvantage if Mr. Florete bury those pipes on
the canal that traverses the school?
A The school maybe deprived of the water for
their fishpond, that is one and the second,
drainage canal which drains the school in case of
flood will not be working anymore.
Q Now, in your letter, you mentioned here and I
read quote: Please sit down with us with Mr.
Borres because this lot of the school still belongs
to Mr. Borres and the Division Office denies your
right of way, my question is what do you mean
when you say that the Division Office denied your
right of way?
A I meant they cannot bury a pipe depriving the
school of the water because the land does not
belong to us yet. In other words, the land does
not belong to L. Borres Elementary School
although it is supposed to be donated by L.
Borres
Q But when you wrote this letter Mrs. Witness,
did you really stop or prohibit Mr. Florete from
continuing the use of the canal?
A No sir. (TSN, Oct. 17, 1979, pp. 5-6)
Mrs. Javellana sent that letter-invitation when she came to know
that water pipes were about to be laid underground by plaintiffs in
lieu of the open canal. Plaintiff Florete Sr., however, did not come
to the conference nor sent any word or representative. Nor did he
attend to all other subsequent invitations related to the canal
although he knew said invitations or conference conducted by the
government offices concerned.
As heretofore stated, the main canal had long been in existence
even before plaintiff Marcelino Florete Sr. acquired ownership of
the fishpond of the Maranons thru which the same passes. This
canal served as passage of salt water from Iloilo River to the school
fishpond and at the same time, as outlet and drainage canal or
channel of rainwater from the school premises and adjacent lands
that empties to the Iloilo River. An easement or servitude of water-
right of way had thus been constituted on the property of the
plaintiffs as the servient estate in favor of the L. Borres Elementary
School land and the nearby lands as the dominant estates.
Even on the assumption that it was plaintiff Florete Sr. who
constructed the subject canal in 1961, an easement or servitude of
water-right-of-way had nonetheless been constituted on subject
property because since then the same had been in continuous use
for no less than fifteen (15) years — by the school fishpond as well
as by the adjacent lands. A positive easement (Art 616, New Civil
Code) had thereby been created and plaintiffs have no right to
terminate it unilaterally without violating Art. 629 of the New Civil
Code which provides:
Art. 629: The owner of the servient estate cannot impair, in any
manner whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally assigned or of the
manner established for the use of the easement, the same should
become very inconvenient to the owner of the servient estate, or
should prevent him from making any important works, repairs or
improvements thereon, it may be charged at his expense, provided
he offers another place or manner equally convenient and in such a
way that no injury is caused thereby to the owner of the dominant
estate or to those who may have a right to the use of the easement.
Plaintiffs, however, did not recognize, much less, follow the above-
quoted law on easement. They closed the entrance of the canal
and demolished portions of the main dike thus impairing the use of
the servitude by the dominant estate. And by so doing, plaintiffs
violated not only the law on easement but also Presidential Degree
No. 296 which enjoins any person, natural or juridical, to demolish
structures or improvements which tend to obstruct the flow of water
through rivers, creeks, esteros and drainage channels. For this
canal did not serve merely to supply salt water to the school
fishpond but also serves as drainage charged or channel of
rainwater from adjacent lands to the Iloilo River.
Before the canal was closed, the residents had not experienced
any flood in the area or in the school premises. It was only after the
canal was closed by plaintiffs on July 25, 1978, that the residents
began to experience flood in the school premises particularly in the
month of August every year thereafter when rainy season comes.
Rainwater from adjoining areas accumulate at the school premises
without any chance of going out. Flood waters remain stagnant for
days and became filthy and veritable breeding place of mosquitoes.
Plaintiffs claimed that they closed the canal because the residents
of the place threw waste matter and garbage into the canal and so
the waters therein were dirtied and rendered totally unsanitary for
human use, particularly for salt-making. But this claim was belied
by defendants' showing that what motivated plaintiffs to close the
canal was the fact that the residents engaged in salt-making using
plastic bags and thus, somehow, competed with plaintiffs in the
production of salt in the area. At any rate, regardless of what
motivated plaintiffs into closing the canal, the fact is that plaintiffs
act ran roughshod over the aforequoted provisions of law on
easement and transgressed Presidential Decree No. 296.
On the issue of damages, therefore, the court is of the view and so
holds that plaintiffs are liable to the defendants for moral damages,
attorney's fees and costs of litigation. It is bad enough that plaintiffs,
after closing the canal and thus depriving the school fishpond and
residents of the place salt water from the Iloilo River and impeding
the flow of rain and flood waters from the school premises and
adjacent lands to said river during rainy season, unjustifiably
refused and failed to heed defendants' plea for them to reopen said
canal. Worse, plaintiffs instituted the present action against the
defendants and dragged the latter into a court suit that occasioned
upon them worries, serious anxiety, fright and mental anguish. No
doubt, the defendants were vexed to the utmost to find themselves
faced with a court suit when what they did was only to do what was
incumbent upon them to do as public officials committed to serve
public interest and welfare. What is more, they were forced to
secure the service of a private counsel as they were sued also in
their private capacities.
It is quite evident that plaintiffs filed the present action in bad faith
to preempt whatever appropriate legal action the authorities could
take under the circumstances aware, as they were, that no less
than the offices of the City Fiscal of Iloilo and the City Barangay
Secretariat, after conducting ocular inspection of the place together
with other government functionaries tasked with promoting the
health, safety and welfare of the people in the area, recommended
immediate appropriate action aimed at reopening the canal.
The damages that could be adjudged in this case are, however,
limited only to the herein defendants. It may be that the school
fishpond was damaged and the school PTA suffered actual
damages in the form of lost income therefrom. And so with the
school children and residents of the place reason for which
defendants pray that they should be compensated. But they are not
parties to this case hence, damages could not be awarded to them.
(pp. 37-46, Rollo)
After a careful reading of the aforementioned findings of the trial court, there is no
question that the two subject canals had been in existence long before plaintiff Florete
bought his land from the Maranons. Respondent appellate court cannot now disown it
after quoting with approval in the body of its decision the findings of the trial court.
This brings Us to the determination of the other issue namely: which of the two (2)
estates is the dominant or servient estate, an issue which hinges upon the conclusion
reached by the trial court that the canals were in existence long before Florete Sr. had
acquired that property from the Maranons. It has been established that the main canal
which is traversing the property of Florete served as the passage of salt water from
the Iloilo River to the school fishpond and at the same time, as an outlet and drainage
canal or channel of rainwater from the school premises and adjacent lands that empty
into the Iloilo River. Even assuming that it was plaintiff Florete Sr. who constructed
the subject canal in 1961, an easement of water-right of way had already been
constituted on the property of the plaintiffs as the servient estate in favor of the L.
Borres Elementary School premises and the nearby lands as the dominant estates.
Private respondents thus violated Art. 629 of the Civil Code when they closed the
entrance of the canal and demolished portions of the main dike thus impairing the use
of the servitude by the dominant estates. The findings of the trial court are amply
supported by a careful and exhaustive consideration of all available documentary and
oral evidence including ocular inspections as it was in the best position to do so. Its
legal conclusions are likewise unassailable. In view of the well-settled rule that this
Court is not a trier of facts, We find no plausible reason not to sustain the trial court in
its findings of fact and the legal conclusions drawn from these findings.

WHEREFORE, premises considered, the assailed decision of the respondent

appellate court is hereby REVERSED and SET ASIDE, and the judgment of the
Regional Trial Court in Civil Case No. 12791 is hereby REINSTATED.

SO ORDERED.

Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.

G.R. No. L-17482 March 31, 1966
GENOVEVA R. JABONETE, ET AL., plaintiffs,
vs.
JULIANA MONTEVERDE, ET AL., defendants,
ANTONIO LEGASPI, respondent-appellant,
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner-appellee,
MRS. LUZ ARCILLA, petitioner-intervenor-appellee.
Zuño and Mojica for the respondents-appellants.
Jesus Avanceña for the plaintiffs.
REGALA, J.:
This is an appeal from an order of the Court of First Instance of Davao, dated March
11, 1960, finding the respondent-appellant, Antonio Legaspi, guilty of contempt of
court, and imposing upon him a fine of P100.
On March 11, 1954, the Court of First Instance of Davao, in view of its finding in Case
No. 824, entitled Jabonete vs. Monteverde, et al., that Antonio Legaspi acquired the
lot in question with the knowledge that a "gravamen" or easement of right of way
existed thereon, promulgated a decision the dispositive portion of which reads:
Ordena al demandado Antonio Legaspi la demolicion de la parte del corral
construido a lo largo de su terreno que impide a lote demandantes tener
acceso con la vereda que communica con la carretera principal, Tomas
Claudio.
Declara que los demandantes tienen derecho el uso de la vereda (Exh. A-3),
de 3 metros de ancho, unico paso que disponen para communicarse con la
Calle Tomas Claudio, para el paso de sus jeeps, y los vehiculos, reparados
que entran y salen del taller de reparacion de aquellos.
The respondent-appellant received a copy of the decision on May 12, 1954. Two days
later, May 14, 1954 he filed his notice of appeal therefrom. On May 21, 1954
however, upon a previous motion of the plaintiffs, the lower court issued an order
granting discretionary execution of the said decision. In view of this last mentioned
order, the plaintiffs immediately proceeded to the premises in question and opened in
the fence of the defendant Antonio Legaspi a sufficient opening for the passage of
men and vehicles. Even then, however, the defendant filed with the court below on
that very same day, May 21, 1954, a motion for the reconsideration of the order
granting discretionary execution. Thereafter, and upon the lower court's suggestion,
the parties entered into an amicable agreement which was later embodied in an order
or "auto" dated May 24, 1954, to wit:
A raiz de la mocion del demandado pidiendo antre otras cosas, la
reconsideracion de la orden de ejecucion de la decision dictada en esta
causa, el 22 del Mayo de 1954, el Juez que preside esta sala se constituyo
para una inspeccion ocular en el lugar en conflicto.
Durante la inspeccion ocular, los demandantes y demandado, Antonio
Legaspi, llegaron a un acuerdo:
1. Los demandantes no instalaran en su terreno su taller de reparacion de
vehiculos de motor.
2. Los demandantes pueden construir su garaje dentro de su terreno para
su jeep (AC), pero no los tendran parados en la calle privada del
demandados construida por este en su terreno a lo largo del terreno de los
demandantes;
3. Los demandantes contribuiran a prorata con el demandado los gastos de
reparacion de la calle privada construida por el referido demandado en su
terreno a lo largo del terreno de los demandantes.1äwphï1.ñët
4. El demandado, Antonio Legaspi, permitira el uso y paso en la calle
privada construida por el en su terreno a lo largo del terreno de los
demandantes, a estos, su familia, sus amigos, chofers, servidumbre y de
sus jeeps.
5. Para los fines del uso de la calle, el demandado permitira a los
demandantes, frente de la casa de estos, abrir una puerta de 4 metros de
ancho en el corral construido por el demandado que separa la calle privada
y el terreno de los demandantes, a su (demandantes) costa; sus hojas
tendran por dentro, que los demandantes tendran cerradas para evitar que
los niños, hijos de los inquilinos del demandado tengan acceso a los jeeps
de los demandantes, cuyo garaje tendran dentro de su (demandantes)
terreno.
El Juzgado ordena a las partes litigantes complan estrictamente con lo
estipulado; de los contrario, los mismos estaran sujetos a las ordenes de
este Juzgado.
As a result of the above agreement and Order of May 24, 1954, the defendant
abandoned the prosecution of his appeal. At the same time, both parties complied
with its terms until the plaintiffs, unable to continue with their repair shop, transferred
to another place in December 1959 whereupon the defendant reconstructed his fence
and its footing, closing thereby the opening previously made by the plaintiffs.
In the course of time, the plaintiffs' lot was foreclosed by the Development Bank of the
Philippines (DBP) which, later still, conveyed it under a conditional sale to Mrs. Luz
Arcilla. On her acquisition of the said lot, Mrs. Arcilla demanded of the defendant the
re-opening of the fence in question as it was her plan to construct her house in the
said lot. When the defendant refused, the Development Bank filed with the lower
court a petition to hold the said defendant in contempt. To this petition, Mrs. Luz
Arcilla later intervened and was so allowed by the lower court. The Development
Bank of the Philippines and Mrs. Luz Arcilla contended that the refusal of the
defendant to cause or allow the making of an opening in his fence was a defiance of
the said court's decision of March 11, 1954 and was, therefore, contemptuous. After
due hearing, the lower court sustained the petitioners and found the defendant guilty
of contempt with orders "to pay a fine of One Hundred Pesos (P100.00) and to open
the vereda or alley leading to the lot owned by the Development Bank of the
Philippines and conveyed to Mrs. Luz S. Arcilla under a conditional deed of sale,
otherwise he should be imprisoned until he does so." Thus, the instant appeal.
The respondent-appellant maintains that the lower court erred in finding him guilty of
contempt because:
1. The decision of March 11, 1954 was novated by the order of May 24,
1954. Consequently, he could not have violated the former decree since with
its novation it ceased to have any legal effect.
2. Even assuming that the said decision was not novated by the subsequent
order of May 24, 1954, still he could not be deemed to have violated the said
decision because the same never became final and executory. The
respondent-appellant argued that since the decision of March 11, 1954
ordered the opening of a right of way in his property without providing for this
corresponding compensation to him, contrary to Article 649 of the Civil
Code,1 there was in the said decision "a void which ought to be filled or to be
done in order to completely dispose of the case. It was not clear, specific
and definitive," and consequently, a judgment that could not have acquired
finality.
3. The right to file contempt proceedings against him, with respect to the
decrees contained in the decision of March 11, 1954, has prescribed. The
respondent-appellant conceded that there is no prescriptive period for the
institution of contempt proceedings. However, he contended that inasmuch
as contempt under Rule 64 of the Rules of Court is punishable by arresto
mayor, it should prescribe in five years just as crimes for which the said
penalty is imposed prescribe, under the Penal Code, in five years.
El demandado Antonio Legaspi, permitira el uso y paso en la calle privada
construida por el en su terreno a lo largo del terreno de los demandantes, a
estos, su familia, sus amigos, chofers, servidumbre y de sus jeeps.
The servitude established was clearly for the benefit alone of the plaintiffs and the
persons above enumerated and it is clear that the lower court, as well as the parties
addressed by the said order, did not intend the same to pass on to the plaintiffs'
successors-in-interest. In other words, the right acquired by the original plaintiffs was
a personal servitude under Article 614 of the Civil Code, and not a predial servitude
that inures to the benefit of whoever owns the dominant estate.
In resisting the extension of the aforementioned easement to the latter, the plaintiffs'
successors-in-interest, the respondent-appellant, therefore, was not defying the
decision of March 11, 1954 which was then no longer subsisting, nor the order of May
24, 1954 since the said successors-in-interest had no right thereunder.
Another evidence that the servitude in question was personal to the plaintiffs is the
fact that the same was granted to the latter without any compensation to the
respondent-appellant.
Wherefore, the order of the lower court dated March 11, 1960 finding the respondent-
appellant guilty of contempt is hereby reversed, without pronouncement as to costs.
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Makalintal, Bengzon, J.P.,
Zaldivar and Sanchez, JJ., concur.
Bautista Angelo and Dizon, JJ., took no part.

Without passing on the merits or demerits of the foregoing arguments, this Court
believes that the order finding the respondent-appellant guilty of contempt should be
reversed. It is clear that the order of May 24, 1954 superseded and was fully intended
by the lower court to modify or stand in substitution of the decision of March 11, 1954.
More than the expression of the parties amicable agreement on the dispute, the said
order was the lower court's resolution of the respondent-appellant's motion for
reconsideration of the decision of March 11, 1954. In the determination, therefore, of
the said appellant's obligation relative to the easement in question, the latter and not
the decision of March 11, 1954 is the proper point in reference.

Under the aforesaid order of May 24, 1954, the easement awarded or secured by the
lower court to the plaintiffs was strictly a personal one. The right of way granted was
expressly limited to the latter and their "family, friends, drivers, servants and jeeps." In
the very language of the agreement the following appears:
G.R. No. 77628 March 11, 1991
TOMAS ENCARNACION, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE INTESTATE ESTATE OF THE
LATE EUSEBIO DE SAGUN and THE HEIRS OF THE LATE ANICETA MAGSINO
VIUDA DE SAGUN,* respondents.
Esteban M. Mendoza for petitioner.
Oscar Gozos for private respondents.
FERNAN, C.J.:
Presented for resolution in the instant petition for review is the not-so-usual question
of whether or not petitioner is entitled to a widening of an already existing easement
of right-of-way. Both the trial court and the Appellate Court ruled that petitioner is not
so entitled, hence the recourse to this Court. We reverse.
The facts are undisputed.
Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta
Magsino Viuda de Sagun are the owners of two adjacent estates situated in Buco,
Talisay, Batangas. ** Petitioner owns the dominant estate which has an area of 2,590
square meters and bounded on the North by Eusebio de Sagun and Mamerto
Magsino, on the south by Taal Lake, on the East by Felino Matienzo and on the West
by Pedro Matienzo. Private respondents co-own the 405-square-meter servient estate
which is bounded on the North by the National Highway (Laurel-Talisay Highway), on
the South by Tomas Encarnacion, on the East by Mamerto Magsino and on the West
by Felipe de Sagun. In other words, the servient estate stands between the dominant
estate and the national road.
Prior to 1960, when the servient estate was not yet enclosed with a concrete fence,
persons going to the national highway just crossed the servient estate at no particular
point. However, in 1960 when private respondents constructed a fence around the
servient estate, a roadpath measuring 25 meters long and about a meter wide was
constituted to provide access to the highway. One-half meter width of the path was
taken from the servient estate and the other one-half meter portion was taken from
another lot owned by Mamerto Magsino. No compensation was asked and non was
given for the portions constituting the pathway.1
It was also about that time that petitioner started his plant nursery business on his
land where he also had his abode. He would use said pathway as passage to the
highway for his family and for his customers.
Petitioner's plant nursery business through sheer hard work flourished and with that, it
became more and more difficult for petitioner to haul the plants and garden soil to and
from the nursery and the highway with the use of pushcarts. In January, 1984,
petitioner was able to buy an owner-type jeep which he could use for transporting his
plants. However, that jeep could not pass through the roadpath and so he
approached the servient estate owners (Aniceta Vda. de Sagun and Elena Romero
Vda. de Sagun) and requested that they sell to him one and one-half (1 1/2) meters of
their property to be added to the existing pathway so as to allow passage for his
jeepney. To his utter consternation, his request was turned down by the two widows
and further attempts at negotiation proved futile.
Petitioner then instituted an action before the Regional Trial Court of Batangas,
Branch 6 (Tanauan) to seek the issuance of a writ of easement of a right of way over
an additional width of at least two (2) meters over the De Saguns' 405-square-meter
parcel of land.2
During the trial, the attention of the lower court was called to the existence of another
exit to the highway, only eighty (80) meters away from the dominant estate. On
December 2, 1985, the lower court rendered judgment dismissing petitioner's
complaint. It ruled:
It is clear, therefore, that plaintiff at present has two outlets to the highway:
one, through the defendants' land on a one meter wide passageway, which
is bounded on both sides by concrete walls and second, through the dried
river bed eighty meters away. The plaintiff has an adequate outlet to the
highway through the dried river bed where his jeep could pass.
The reasons given for his claim that the one-meter passageway through
defendants' land be widened to two and one-half meters to allow the
passage of his jeep, destroying in the process one of the concrete fences
and decreasing defendants' already small parcel to only about 332.5 square
meters, just because it is nearer to the highway by 25 meters compared to
the second access of 80 meters or a difference of only 65 meters and that
passage through defendants' land is more convenient for his (plaintiffs)
business and family use are not among the conditions specified by Article
649 of the Civil Code to entitle the plaintiff to a right of way for the passage
of his jeep through defendant's land.3
On appeal, the Court of Appeals affirmed the decision of the trial court on January 28,
1987 and rejected petitioner's claim for an additional easement.
In sustaining the trial court, the Court of Appeals opined that the necessity interposed
by petitioner was not compelling enough to justify interference with the property rights
of private respondents. The Appellate Court took into consideration the presence of a
dried river bed only eighty (80) meters away from the dominant estate and
conjectured that petitioner might have actually driven his jeep through the river bed in
order to get to the highway, and that the only reason why he wanted a wider
easement through the De Sagun's estate was that it was more convenient for his
business and family needs.
After evaluating the evidence presented in the case, the Court finds that petitioner
has sufficiently established his claim for an additional easement of right of way,
contrary to the conclusions of the courts a quo.
While there is a dried river bed less than 100 meters from the dominant tenement,
that access is grossly inadequate.1âwphi1 Generally, the right of way may be
demanded: (1) when there is absolutely no access to a public highway, and (2) when,
even if there is one, it is difficult or dangerous to use or is grossly insufficient. In the
present case, the river bed route is traversed by a semi-concrete bridge and there is
no ingress nor egress from the highway. For the jeep to reach the level of the
highway, it must literally jump four (4) to five (5) meters up. Moreover, during the rainy
season, the river bed is impassable due to the floods. Thus, it can only be used at
certain times of the year. With the inherent disadvantages of the river bed which
make passage difficult, if not impossible, it is if there were no outlet at all.
Where a private property has no access to a public road, it has the right of easement
over adjacent servient estates as a matter of law.4
damage caused to the servient estate pursuant to Article 649 of the Civil Code which
states in part:
Art. 649. The owner, or any person who by virtue of a real right may cultivate
or use any immovable, which is surrounded by other immovables pertaining
to other persons and without adequate outlet to a public highway, is entitled
to demand a right of way through the neighboring estates, after payment of
the proper indemnity.
Should this easement be established in such a manner that its use may be
continuous for all the needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the servient estate.

With the non-availability of the dried river bed as an alternative route to the highway, xxx xxx xxx
we transfer our attention to the existing pathway which straddles the adjoining
properties of the De Sagun heirs and Mamerto Magsino.
WHEREFORE, in conformity with the foregoing discussion, the appealed decision of
the Court of Appeals dated January 28, 1987 is REVERSED and SET ASIDE.
The courts below have taken against petitioner his candid admission in open court Petitioner Tomas Encarnacion is hereby declared entitled to an additional easement
that he needed a wider pathway for the convenience of his business and family. of right of way of twenty-five (25) meters long by one and one-half (1 1/2) meters wide
(TSN, August 2, 1985, pp. 24-26). We cannot begrudge petitioner for wanting that over the servient estate or a total area of 62.5 square meters after payment of the
which is convenient. But certainly that should not detract from the more pressing proper indemnity.
consideration that there is a real and compelling need for such servitude in his favor.
SO ORDERED.
Article 651 of the Civil Code provides that "(t)he width of the easement of right of way
shall be that which is sufficient for the needs of the dominant estate, and may
accordingly be changed from time to time." This is taken to mean that under the law, it Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.
is the needs of the dominant property which ultimately determine the width of the
passage. And these needs may vary from time to time. When petitioner started out as
a plant nursery operator, he and his family could easily make do with a few pushcarts
to tow the plants to the national highway. But the business grew and with it the need
for the use of modern means of conveyance or transport. Manual hauling of plants
and garden soil and use of pushcarts have become extremely cumbersome and
physically taxing. To force petitioner to leave his jeepney in the highway, exposed to
the elements and to the risk of theft simply because it could not pass through the
improvised pathway, is sheer pigheadedness on the part of the servient estate and
can only be counter-productive for all the people concerned. Petitioner should not be
denied a passageway wide enough to accomodate his jeepney since that is a
reasonable and necessary aspect of the plant nursery business.

We are well aware that an additional one and one-half (1 1/2) meters in the width of
the pathway will reduce the servient estate to only about 342.5 square meters. But
petitioner has expressed willingness to exchange an equivalent portion of his land to
compensate private respondents for their loss. Perhaps, it would be well for
respondents to take the offer of petitioner seriously.5 But unless and until that option
is considered, the law decrees that petitioner must indemnify the owners of the
servient estate including Mamerto Magsino from whose adjoining lot 1/2 meter was
taken to constitute the original path several years ago. Since the easement to be
established in favor of petitioner is of a continuous and permanent nature, the
indemnity shall consist of the value of the land occupied and the amount of the
G.R. No. 911 March 12, 1903
MAXIMO CORTES, plaintiff-appellant,
vs.
JOSE PALANCA YU-TIBO, defendant-appellant.
Felipe G. Calderon, for appellant.
Simplicio del Rosario, for appellee.
MAPA, J.:
This suit was brought to obtain an injunction, in accordance with the provisions of
section 162 to 172 of the Code of Civil Procedure, for the purpose of restraining the
continuation of certain buildings commenced by the defendant. The court below
issued a preliminary injunction during the trial, but, upon, rendering final judgment,
dissolved the injunction, with the costs against the plaintiff. The latter excepted to this
judgment and assigns error:
In the trial the following facts were admitted without contradiction:
(1) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff, has
certain windows therein, through which it receives light and air, said windows opening
on the adjacent house, No. 63 of the same street; (2) that these windows have been
in the existence since the year 1843 and (3) that the defendant, the tenant of the said
house No. 63, has commenced certain work with the view to raising the roof of the
house in such a manner that one-half of the windows in said house No. 65 has been
covered, thus depriving the building of a large part of the air and light formerly
received through the window. In its decision the court below practically finds the
preceding facts, and further finds that the plaintiff has not proven that he has, by any
formal act, prohibited the owner of house No. 63, from making improvements of any
kind therein at any time prior to the complaint.
The contention of the plaintiff is that by the constant and uninterrupted use of the
windows referred to above during a period of fifty-nine years he acquired from
prescription an easement of light in favor of the house No. 65, and as a servitude
upon house No. 63, and, consequently, has acquired the right to restrain the making
of any improvements in the latter house which might in any manner be prejudicial to
the enjoyment of the said easement. He contends that the easement of light is
positive; and that therefore the period of possession for the purposes of the
acquisition of a prescriptive title is to begin from the date on which the enjoyment of
the same commenced, or, in other words, applying the doctrine to this case, from the
time that said windows were opened with the knowledge of the owner of the house
No. 63, and without opposition on this part.
The defendant, on the contrary, contends that the easement is negative, and that
therefore the time for the prescriptive acquisition thereof must begin from the date on
which the owner of the dominant estate may have prohibited, by a formal act, the
owner of the servient estate from doing something which would be lawful but for the
existence of the easement.
The court below in its decision held in the easement of light is negative, and this
ruling has been assigned by the plaintiff as error to be corrected by this court.
A building may receive light in various manners in the enjoyment of an easement of
light, because the openings through which the light penetrates may be made in one's
own wall, in the wall of one's neighbor, or in a party wall. The legal doctrine applicable
in either one of these cases is different, owing to the fact that, although anyone may
open windows in his own wall, no one has a right to do so in the wall of another
without the consent of the owner, and it is also necessary, in accordance with article
580 of the Civil Code, to obtain the consent of the other coowner when the opening is
to be made in a party wall.
This suit deals with the first case; that is, windows opened in a wall belonging to the
wife of the plaintiff, and it is this phase of the easement which it is necessary to
consider in this opinion.
When a person opens windows in his own building he does nothing more than
exercise an act of ownership inherent in the right of property, which, under article 348
of the Civil Code, empowers him to deal with his property as he may see fit, with no
limitations other than those established by law. By reason of the fact that such an act
is performed wholly on a thing which is wholly the property of the one opening the
window, it does not in itself establish any easement, because the property is used by
its owner in the exercise of dominion, and not as the exercise of an easement: "For a
man," says law 13, title 31, third partida, "should not use that which belongs to him as
if it were a service only, but as his own property." Coexistent with this right is the right
of the owner of the adjacent property to cover up such windows by building on his
own land or raising a wall contiguously to the wall in which the windows are opened
(art. 581 of the same Code), by virtue of the reciprocity of rights which should exist
between abutting owners, and which would cease to exist if one could do what he
pleased on his property and the other could not do the same on his. Hence it is that
the use of the windows opened in a wall of one's own property, in the absence of
some covenant or express agreement to the contrary, is regarded as an act of mere
tolerance on the part of the owner of the abutting property (judgments of the supreme
court of Spain of the 17th of May, 1876; 10th of May, 1884; 30th of May, 1890), and
does not create any right to maintain the windows to the prejudice of the latter
(judgment of the supreme court of Spain of the 13th of June, 1877). The mere
toleration of such an act does not imply on the part of the abutting owner a waiver of
his right to freely build upon his land as high as he may see fit, nor does it avail the
owner of the windows for the effects of possession according to article 1942 of the
Civil Code, because it is a mere possession at will. From all this it follows that the
easement of light with respect to the openings made in one's own edifice does not
consist precisely in the fact of opening them or using them, inasmuch as they may be
covered up at any time by the owner of the abutting property, and, as Manresa says
in his commentaries on the Civil Code, "there is no true easement as long as the right
to impede its use exists." The easement really consists of in prohibiting or restraining
the adjacent owner from doing anything which may tend to cut off or interrupt the
light; in short, it is limited to the obligation of not impeding the light (ne luminibus
officiatur). The latter coincides in its effects, from this point of view, with the obligation
of refraining from increasing the height of a building (altius non tollendi), which,
although it constitutes a special easement, has for its object, at times, the prevention
of any interruption of the light enjoyed by the adjacent owner.
It will be readily observed that the owner of the servient estate subject to such
easement is under no obligation whatsoever to allow anything to be done on his
tenement, nor to do anything there himself, but is simply restrained from doing
anything thereon which may tend to cut off the light from the dominant estate, which
he would undoubtedly be entitled to do were it not for the existence of the easement.
If, then, the first condition is that which is peculiar to positive easements, and the
second condition that which is peculiar to negative easements, according to the
definition of article 533 of the Civil Code, it is our opinion that the easement of lights in
the case of windows opened in one's own wall is of a negative character, and, as
such, can not be acquired by prescription under article 538 of the Civil Code, except
by counting the time of possession from the date on which the owner of the dominant
estate may, by a formal act have prohibited the owner of the servient estate from
doing something which it would be lawful from him to do were it not for the easement.
The supreme court of Spain, in its decisions upon this subject, has established these
principles by a long line of cases. In its judgment of May 14, 1861, the said court
holds that "the prescription of the easement of lights does not take place unless there
has been some act of opposition on the part of the person attempting to acquire such
a right against the person attempting to obstruct its enjoyment." The easements of
light and view," says the judgment of March 6, 1875, "because they are of a negative
character, can not be acquired by a prescriptive title, even if continuous, or although
they may have been used for more than twenty-eight years, if the indispensable
requisite for prescription is absent, which is the prohibition on the one part, and the
consent on the other, of the freedom of the tenement which it is sought to charge with
the easement." In its judgment of June 13, 1877, it is also held that use does not
confer the right to maintain lateral openings or windows in one's own wall to the
prejudice of the owner of the adjacent tenement, who, being entitled to make use of
the soil and of the space above it, may, without restriction, build on his line or
increase the height of existing buildings, unless he has been " forbidden to increase
the height of his buildings and to thus cut off the light," and such prohibition has been
consented to and the time fixed by law subsequently expired. The court also holds
that it is error to give the mere existence or use of windows in a wall standing wholly
on the land of one proprietor the creative force of true easement, although they may
have existed from the time immemorial. Finally, the judgments of the 12th of
November, 1899, and the 31st of May, 1890, hold that "as this supreme court has
decided, openings made in walls standing wholly on the land of one proprietor and
which overlook the land of another exist by mere tolerance in the absence of an
agreement to the contrary, and can not be acquired by prescription, except by
computing the time from the execution of some act of possession which tends to
deprive the owner of the tenement affected of the right to build thereon." Various
other judgments might be cited, but we consider that those above mentioned are
sufficient to demonstrate the uniformity of the decisions upon this point. It is true that
the supreme court of Spain, in its decisions of February 7 and May 5, 1896, has
classified as positive easements of lights which were the object of the suits in which
these decisions were rendered in cassation, and from these it might be believed at
first glance that the former holdings of the supreme court upon this subject had been
overruled. But this is not so, as a matter of fact, inasmuch as there is no conflict
between these decisions and the former decisions above cited.
In the first of the suits referred to, the question turned upon two houses which had
formerly belonged to the same owner, who established a service of light on one of
them for the benefit of the other. These properties were subsequently conveyed to
two different persons, but at the time of the separation of the property nothing was
said as to the discontinuance of the easement, nor were the windows which
constituted the visible sign thereof removed. The new owner of the house subject to
the easement endeavored to free it from the incumbrance, notwithstanding the fact
that the easement had been in existence for thirty-five years, and alleged that the
owner of the dominant estate had not performed any act of opposition which might
serve as a starting point for the acquisition of a prescriptive title. The supreme court,
in deciding this case, on the 7th of February, 1896, held that the easement in this
particular case was positive, because it consisted in the active enjoyment of the light.
This doctrine is doubtless based upon article 541 of the Code, which is of the
following tenor: "The existence of apparent sign of an easement between two
tenements, established by the owner of both of them, shall be considered, should one
be sold, as a title for the active and passive continuance of the easement, unless, at
the time of the division of the ownership of both tenements, the contrary should be
expressed in the deed of conveyance of either of them, or such sign is taken away
before the execution of such deed."
The word "active" used in the decision quoted in classifying the particular enjoyment
of light referred to therein, presupposes on the part of the owner of the dominant
estate a right to such enjoyment arising, in the particular case passed upon by that
decision, from the voluntary act of the original owner of the two houses, by which he
imposed upon one of them an easement for the benefit of the other. It is well known
that easements are established, among other cases, by the will of the owners. (Article
536 of the Code). It was an act which was, in fact, respected and acquiesced in by
the new owner of the servient estate, since he purchased it without making any
stipulation against the easement existing thereon, but, on the contrary, acquiesced in
the continuance of the apparent sign thereof. As is stated in the decision itself, "It is a
principle of law that upon a division of a tenement among various persons -- in the
absence of any mention in the contract of a mode of enjoyment different from that to
which the former owner was accustomed -- such easements as may be necessary for
the continuation of such enjoyment are understood to subsist." It will be seen, then,
that the phrase "active enjoyment" involves an idea directly opposed to the enjoyment
which is the result of a mere tolerance on the part of the adjacent owner, and which,
as it is not based upon an absolute, enforceable right, may be considered as of a
merely passive character. Therefore, the decision in question is not in conflict with the
former rulings of the supreme court of Spain upon the subject, inasmuch as it deals
with an easement of light established by the owner of the servient estate, and which
continued in force after the estate was sold, in accordance with the special provisions
of article 541 of the Civil Code.
Nor is the other decision cited, of May 5, 1896, in conflict with the doctrine above laid
down, because it refers to windows opened in a party wall, and not in a wall the sole
and exclusive property of the owner of the dominant tenement, as in the cases
referred to by the other decisions, and as in the case at bar. The reason for the
difference of the doctrine in the one and the other case is that no part owner can,
without the consent of the other, make in a party wall a window or opening of any
kind, as provided by article 580 of the Civil Code. The very fact of making such
openings in such a wall might, therefore, be the basis for the acquisition of a
prescriptive title without the necessity of any active opposition, because it always
presupposes the express or implied consent of the other part owner of the wall, which
consent, in turn, implies the voluntary waiver of the right of such part owner to oppose
the making of such openings or windows in such a wall.
With respect to the provisions of law 15, title 31, third partida, which the appellant
largely relied upon in this oral argument before the court, far from being contrary to it,
is entirely in accord with the doctrine of the decisions above referred to. This law
provides that "if anyone shall open a window in the wall of his neighbor, through
which the light enters his house," by this sole fact he shall acquire a prescriptive title
to the easement of light, if the time fixed in the same law (ten years as to those in the
country and twenty years as to absentees) expires without opposition on the part of
the owner of the wall; but, with the exception of this case, that is to say, when the
windows are not opened in the wall of the neighbor, the law referred to requires as a
condition to the commencement of the running of the time for the prescriptive
acquisition of the easement, that "the neighbor be prohibited from raising his house,
and from thereby interrupting the light." That is to say, he must be prohibited from
exercising his right to build upon his land, and cover the window of the other. This
prohibition, if consented to, serves as a starting point for the prescriptive acquisition of
the easement. It is also an indispensable requisite, therefore, in accordance with the
law of thepartidas, above mentioned, that some act of opposition be performed, in
order that an easement may be acquired with respect to openings made in one's own
wall.
For a proper understanding of this doctrine, it is well to hold in mind that the Code of
the partidas, as well as the Roman law, clearly distinguishes two classes of
easements with respect to the lights of houses, as may be seen in law 2 of title 31, of
the third partida. One of them consists in "the right to pierce the wall of one's neighbor
to open a window through which the light may enter one's house" (equivalent to the
so-called easement of luminum of the Romans); the other is "the easement which one
house enjoys over another, whereby the latter can not at any time be raised to a
greater height than it had at the time the easement was established, to the end at the
light be not interrupted." (Ne luminibus officiatur.) For the prescriptive acquisition of
the former the time must begin, as we have seen, from the opening of the window in
the neighbor's wall. As to the second, the time commences from the date on which he
was "prevented from raising his house." Some of the judgments which establish the
doctrine above laid down were rendered by the supreme court of Spain interpreting
and applying the above cited law 15, title 31, partida 3, and therefore they can not in
any sense be regarded as antagonistic to the law itself.
The question as to whether the windows of the house of the plaintiff are, or are not,
so-called regulation windows, we consider of but little importance in this case, both
because the authority of the decisions of the law of thepartidas, above cited, refers to
all kinds of windows, and not to regulation windows solely, and because the record
does not disclose, nor has the appellant even stated, the requirements as to such
regulation windows under the law in operation prior to the Civil Code, which he
asserts should be applied and on which he relies to demonstrate that he has acquired
by prescription the easement in question. With respect to the watershed which,
according to the plaintiff, exists over the window in question, the record does not
disclose that the same has been destroyed by the defendant. He expressly denies it
on page 7 of his brief, and affirms (p. 8) that the tenant of the appellant's property
himself removed it, by reason of the notice served on him; on the other hand, the
judgment of the court below contains no findings with respect to this fact, nor does it
disclose the former existence of any such watershed. Furthermore, the opinion which
we have formed with respect to this matter, in so far as we are able to understand the
merits of the case, is that this shed was a mere accessory of the window, apparently
having no other purpose than that of protecting it against the inclemency of the
weather; this being so, we are of opinion that it should follow the condition of the
window itself, in accordance with the legal maxim that the accessory always follows
the principal. The appellant contends that the shed should be regarded as a
projection within the provisions of article 582 of the Code; but it is sufficient to observe
that this article speaks of windows with direct views, balconies, or similar projections,
in order to conclude that the article does not refer to such watersheds, which have not
the slightest degree of similarity to balconies, nor are they constructed for the purpose
of obtaining the view -- this being the subject-matter which this article expressly
purports to control -- inasmuch as such sheds have rather the effect of limiting the
scope of the view than of increasing it.
The fact that the defendant did not cover the windows of the other house adjacent No.
63 at the time he covered the windows of the appellant, a fact which the latter
adduces as proof of the recognition on the part of the former of the prescriptive
acquisition of the easement of the light in favor of that house, which, according to his
statement, is under precisely the same conditions as the house of the plaintiff, does
not necessarily imply, in our opinion, any such recognition, as it might be the result of
a mere tolerance on the part of the defendant. Certainly the fact of his tolerating the
use by the owner of that house of such windows, supposing the facts to be as stated,
does not carry with it as a result an obligation to exercise the same forbearance with
respect to the plaintiff; but whatever may be the legal status of the windows in the
house referred to with respect to the house No. 63, we cannot pass upon the point,
nor can we form suppositions concerning the matter for the purpose of drawing
conclusions of any kind therefrom to support our opinion, for the simple reason that it
is not a point at issue in the case, and more especially because the defendant not
only denied the existence of the alleged easement of light in favor of the house
referred to, but, on the contrary, he affirms that demand has been made that the
windows in said house be closed, as may be seen on page 8 of his brief.
The point discussed in this trial being whether the plaintiff has acquired the easement
which he seeks to enforce over the house of which the defendant is tenant, it is
evident that the provisions of article 585 of the Civil Code can not be invoked without
taking for granted the very point at issue. This article refers to cases in which, under
any title, the right has been acquired to have direct views, balconies, or belvederes
over contiguous property. The existence of such a right being the very point at issue,
the supposition upon which the article rests is lacking, and it is therefore not in point.
As a result of the opinion above expressed, we hold:
1. That the easement of light which is the object of this litigation is of a negative
character, and therefore pertains to the class which can not be acquired by
prescription as provided by article 538 of the Civil Code, except by counting the time
of possession from the date on which the owner of the dominant estate has, in a
formal manner, forbidden the owner of the servient estate to do an act which would
be lawful were it not for the easement.
2. That, in consequence thereof, the plaintiff, not having executed any formal act of
opposition to the right of the owner of the house No. 63 Calle Rosario (of which the
defendant is tenant), to make therein improvements which might obstruct the light of
the house No. 65 of the same street, the property of the wife of the appellant, at any
time prior to the complaint, as found by the court below in the judgment assigned as
error, he has not acquired, nor could he acquire by prescription, such easement of
light, no matter how long a time have elapsed since the windows were opened in the
wall of the said house No. 65, because the period which the law demands for such
prescriptive acquisition could not have commenced to run, the act with which it must
necessarily commence not having been performed.
Therefore, we affirm the judgment of the court below and condemn the appellant to
the payment of all damages caused to the plaintiff, and to the payment of the costs of
this appeal. So ordered.
Arellano, C.J., Cooper, Willard, and Ladd, JJ., concur.
Torres, J., did not sit in this case.
ON MOTION FOR A REHEARING.
The plaintiff asks for a rehearing of the decision of the court of March 12th last upon
the ground that the same contains error:
First, because the decision holds that the window opened in the plaintiff's own wall
and watershed do not constitute the continuous and apparent easements of prospect,
light, and ventilation, or jus projitiendi and jus spillitiendi, this ruling being in opposition
to the provisions of laws 12, 14, and 15, title 31, third partida, and articles 530, 532,
533, 537, 538, 582, and 585 of the Civil Code.
This allegation is entirely unfounded, inasmuch as the decision of the court contains
no declaration as to whether the windows and watershed do or do not constitute
continuous and apparent easements, or jus projitiendi and jus spillitiendi. These
questions were not drawn into issue by the complaint, and therefore any decision
thereon one way or the other would have been mere dicta. What the court did hold
was that the easement of light, when it is sought to claim such benefit from a window
opened in one's own wall, as does the appellant with respect to the tenement of the
defendant, belongs to the class of negative easements, and that on hold on that
account the time of possession for prescriptive acquisition of the title thereto must be
counted, not from the time of the opening of the windows, but from the time at which
the owner thereof has executed some act of opposition tending to deprive the owner
of the servient tenement of his right, under the law, build upon it to such height as he
might see fit in the legitimate use of his rights of ownership. With respect to the
watershed, the court held that the shed in question in the case is not included within
the class of projections referred to in article 582 of the Civil Code, and certain it is that
neither this article nor any of the other provisions of law cited by the appellant in his
motion papers established any doctrine contrary to that laid down in the decision,
either with regard to the watershed or with respect to the windows. It is not necessary
to say anything further upon this point. It is sufficient to read the text of the laws cited
to reach the conclusion that the assertion made by the appellant in his motion papers
is entirely gratuitous.
Article 582 provides that windows with direct views, balconies, or other similar
projections opening upon the tenement of one's neighbor are not permissible unless
there are two meters distance between the wall in which such openings are
constructed and the adjacent tenement. From this the appellant draws the conclusion
that he who opens windows in his own wall without respecting the distance mentioned
does not exercise an act of ownership, as stated in the decision, inasmuch as he
violates an express provisions of the law.
The conclusion reached is evidently false. The appellant confounds the facts with the
law -- an act of ownership with the right of ownership. The owner of a thing does not
cease to be such owner because in his manner of use or enjoyment thereof he
violates some provision of law. The acts which he performs, in our opinion, even if
abusive or contrary to law, are in a strict sense acts of ownership, acts in the exercise
of dominion, because this character is not derived from a greater or less degree of
compliance with the provisions of law, but from the existence of the status of owner
on the part of the person who exercises such acts. In order that the act performed by
the owner of a wall in opening windows therein be a true act of ownership it is a
matter of indifference whether or not the distance prescribed by article 582 of the
Code has been respected, although, considered from a legal point of view, it might be
an illegal act, as not complying with the conditions imposed by law.
The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to the effect
that "a man should not use that which belongs to him as if it were a service only, but
as his own property" is of general application, and does not refer to the easements
which is a property owner may establish for the benefit of his heirs, as is erroneously
believed by the appellant. The very same law provides that easements which "a man
imposes upon his house must be for the benefit of the tenement or thing of another,
and not that of his own tenement;" and this is because things are of service to their
owner by reason of dominion, and not in the exercise of a right of easement. "Res
sua," says a legal maxim, "nemini jure servitutis servit."
The provision of article 1942 of the Civil Code to the effect that acts which are merely
tolerated procedure no effect with respect to possession is applicable as much as to
the prescription of real rights as to the prescription of the fee, it being a glaring and
self-evident error to affirm the contrary, as does the appellant in his motion papers.
Possession is the fundamental basis of the prescription. Without it no kind of
prescription is possible, not even the extraordinary. Consequently, if acts of mere
tolerance produce no effect with respect to possession, as that article provides, in
conformity with article 444 of the same Code, it is evident that they can produce no
effect with respect to prescription, whether ordinary or extraordinary. This is true
whether the prescriptive acquisition be of a fee or of real rights, for the same reason
holds in one and the other case; that is, that there has been no true possession in the
legal sense of the word. Hence, it is because the use of windows in one's own wall is
the result of a mere tolerance that the supreme court of Spain, in its judgment of June
13, 1877, has held that such user lacks the creative force of a true easement,
although continued from time immemorial. The citation of article 1959 of the Civil
Code and of law 21, title 29, partida 3, made by the petitioner, is therefore not in
point, because both of these provisions of law, which refer to the extraordinary period
of prescription presuppose possession as a necessary requisite, even if without either
just title or good faith.
The second error assigned is that in the decision the court holds that
the gravamina constituted by the window and the projection are negative easements,
against the provisions of article 533, which define them as positive, which definition,
he adds, is supported by the judgments of the supreme court of Spain of February 7
and May 5, 1896, cited in paragraph 12 of the said decision, which judgments declare
that the easement resulting from a window is positive.
It is not true that article 533 of the Civil Code says that the easement of light is
positive, because it does nothing more than give in general terms the definition of
positive easements and negative easements, without attempting to specify whether
the easement of lights pertains to the first or to the second class. We have declared
that the easement is negative, having in mind this very definition of the Code and the
doctrine established by the judgments of the supreme court of Spain which have been
cited in our opinion. The interpretation which the appellant attempts to give the article
of the Civil Code cited is evidently erroneous and, consequently, the citation made by
him in support of his contention is not in point.
Our opinion of the true extent and meaning of the judgments of the supreme court of
Spain of February 7 and May 5, 1896, has been already sufficiently explained, and it
is therefore unnecessary to go into the subject again here. We refer to our decision
with respect to what was said therein upon this subject.
The decision of the court does not contain the declaration, as gratuitously assumed
by the appellant, that the easement resulting from a projection is of a negative
character; nor, in fact, had we any occasion to make such a declaration, in view of the
nature of the issues raised and discussed during the trial. What we did, indeed, hold
was that the watershed mentioned in the complaint, the purpose of which was simply
to protect the window in question from sun and rain, was a mere accessory to that
window, and that in no case could it be considered as a projection within the
provisions of article 582 of the Civil Code, as so erroneously contended by the
appellant at the trial. We find nothing in his motion papers which can in any way
weaken this holding.
The third error is assigned is that the court holds that the easement of light, as
negative, can not be acquired by prescription except by counting the period of
possession from the time at which the owner of the servient tenement has been
prohibited from making improvements which might interfere with said easement,
contrary to the provisions of law 14, title 31, partida 3, and articles 538 and 585 of the
Civil Code, which establish the contrary.
This assertion is entirely destitute of foundation, inasmuch as neither in the law of
the partidas nor in the articles of the Civil Code mentioned is to be found the doctrine
which the appellant arbitrarily seeks to deduce from them. It is sufficient to read the
text to reach the conclusion that the assertion is wholly gratuitous.
The fourth error assigned is that the court holds that the watershed, as being an
accessory of the window, can not in itself constitute an easement, this being contrary
to the provisions of articles 582 and 585 of the Civil Code, and law 2, title
31, partida 3, which do not make any such distinction.
Neither of the law cited speaks expressly of watersheds. We have held that article
582 refers solely to windows, balconies, and other similar projections, and that the
watershed in question does not pertain to this class of projections, our holding being
based upon the reasons given in our decision. The appellant advances no argument
worthy of serious consideration, and therefore we continue to believe that our opinion
in this matter is strictly in accordance with the law.
The appellant has attached to his motion for a rehearing two judgments, one
rendered by the Royal Audiencia of Manila September 6, 1877, and the other by the
supreme court of Spain on the 22d of February, 1892, and we think it well to say a
few words concerning them.
In the opinion of the appellant these judgments support the theory contended for by
him at the trial, that the easement of lights is positive and not negative. His error in so
believing is evident, inasmuch as neither of the judgments referred to establishes any
such doctrine. On the contrary, it appears clear, from the first of these judgments, that
the easement referred to is negative in the opinion of the court which rendered it. This
appears from the eight conclusion of law therein, which is literally as follows: "From
the evidence introduced by the defendant, and even from the testimony of witnesses
of the plaintiff, it has been proven that since 1828 the house in question has suffered
no change or alteration in its roof, which projects over Cosio's lot, which constitutes
the active opposition necessary in order to acquire by prescription the right to the
light." It will be seen, then, that the latter part of the preceding transcript of the
conclusion of law days down precisely the same doctrine as that expressed in our
decision -- that active opposition is a necessary condition for prescriptive acquisition
of an easement of light. And this also demonstrates conclusively that the court which
rendered the judgment referred to considered the easement to be negative, inasmuch
as positive easements do not require any active opposition as a basis for their
prescriptive acquisition, such an act being solely necessary to the prescription of
negative easements.
It would appear, judging from his allegations as a whole, that the appellant confuses
positive easements with continuous easements, and the judgments referred to, in
fact, declares in its fourth conclusion of law that the easement of light is continuous. If
these were really so the error of the appellant would be manifest, because continuity
is not a quality exclusively peculiar to positive easements; there are negative
easements which are also continuous. Hence if is that the Civil Code, after classifying
easements, in article 532, as continuous and discontinuous, classifies them also as
positive and negative (art. 533), thus giving to understand that this latter classification
depends upon other characteristics entirely distinct from the continuity or discontinuity
of easements. If all continuous easements were positive and all discontinuous
easements were negative, then the express division of easements into positive and
negative made by the Code, after establishing the division of the same as continuous
or discontinuous, would be entirely unnecessary, as they would be entirely merged or
included in the latter classification. It is sufficient to read the text of the Code to
understand beyond the possibility of a doubt that a negative easement may be
continuous, and that a positive easement may be discontinuous, according to the
special nature of each one.
With respect to the second judgment -- the judgment of the supreme court of Spain of
February 22, 1892 -- it is certainly difficult to understand how the appellant could have
imagined that he had found therein the slightest ground for his contention, inasmuch
as it lays down no doctrine which relates even inference to the subject of easements,
and simply holds, in the first of only two paragraphs in which its conclusions are
contained, that "judgments should be clear, precise, and responsive to the complaint
and the issues properly raised at the trial;" and in the second, that "the judgment
appealed was contradictory as to the questions it decides, because it makes certain
declarations favorable to some of the contentions in the plaintiff's complaint and then
gives judgment for the defendant, without making any distinction." It was for this
reason alone, and for no other, that the judgment appealed was reversed and
annulled. In the judgment rendered by the same supreme court upon the merits of the
case, as a result of this decision in cassation, no other doctrine is laid down than that
"the judgment must be that the defendant comply with those claims advanced by the
complaint to which he was consented, and that he must be discharged as to those
allegations which have been denied by him and which have not been proved by the
plaintiff."

There is not one word on these judgments which says that the easement of lights is
positive, nor that a watershed constitutes a true projection within the meaning
attached to this word in article 582 of the Civil Code, as has been vainly contended by
the appellant in the trial.

Therefore the appellant's motion for a rehearing of the decision of March 12, 1903, is
denied.

Arellano, C.J., Cooper, Willard and Ladd, JJ., concur.

Torres and McDonough, JJ., did not sit in this case.
G.R. No. L-48384 October 11, 1943
SEVERO AMOR, petitioner,
vs.
GABRIEL FLORENTINO, ET AL., respondents.
BOCOBO, J.:
The petitioner asks for the setting aside of the decision of the Court of Appeals which
affirmed the judgment of the Court of First Instance of Ilocos Sur. The trial court
declared that an easement of light and view had been established in favor of the
property of the plaintiffs (respondents herein) and ordered the petitioner to remove
within 30 days all obstruction to the windows of respondents' house, to abstain from
constructing within three meters from the boundary line, and to pay P200.00
damages.
It appears that over 50 years ago, Maria Florentino owned a house and a camarin or
warehouse in Vigan, Ilocos Sur. The house had and still has, on the north side, three
windows on the upper story, and a fourth one on the ground floor. Through these
windows the house receives light and air from the lot where the camarin stands. On
September 6, 1885, Maria Florentino made a will, devising the house and the land on
which it is situated to Gabriel Florentino, one of the respondents herein, and to Jose
Florentino, father of the other respondents. In said will, the testatrix also devised the
warehouse and the lot where it is situated to Maria Encarnancion Florentino. Upon
the death of the testatrix in 1882, nothing was said or done by the devisees in regard
to the windows in question. On July 14, 1911, Maria Encarnacion Florentino sold her
lot and the warehouse thereon to the petitioner, Severo Amor, the deed of sale stating
that the vendor had inherited the property from her aunt, Maria Florentino. In January,
1938, petitioner destroyed the old warehouse and started to build instead a two-story
house. On March 1st of that year, respondents filed an action to prohibit petitioner
herein from building higher than the original structure and from executing any work
which would shut off the light and air that had for many years been received through
the four windows referred to. The Court of First Instance found on the 15th of the
same month that the construction of the new house had almost been completed, so
the court denied the writ of preliminary injunction.
I.
Inasmuch as Maria Florentino died in 1892, according to the finding of fact of the
Court of Appeals, Articles 541 of the Civil Code governs this case. The facts above
recited created the very situation provided for in said article, which reads as follows:
(Spanish - page 406)
Art. 551. La existencia de un signo aparente de servidumbre entre dos
fincas, establecido por el propietario de ambas, se considerara, si se
enjenare una, como titulo para que la servidumbre continue activa y
pasivamente, a no ser que, al tiempo de separarse la propiedad de las dos
fincas, se exprese lo contrario en el titulo de enajenacion de cualquiera de
ellas, o se haga desaparecer acquel signo antes del otorgamiento de la
escritura.
Art. 541. The existence of an apparent sign of easement between two
estates, established by the proprietor of both, shall be considered, if one of
them is alienated, as a title so that the easement will continue actively and
passively, unless at the time the ownership of the two estates is divided, the
contrary is stated in the deed of alienation of either of them, or the sign is
made to disappear before the instrument is executed.
When the original owner, Maria Florentino, died in 1892, the ownership of the house
and its lot passed to respondents while the dominion over the camarin and its lot was
vested in Maria Encarnancion Florentino, from whom said property was later bought
by petitioner. At the time the devisees took possession of their respective portions of
the inheritance, neither the respondents nor Maria Encarnacion Florentino said or did
anything with respect to the four windows of the respondents' house. The
respondents did not renounce the use of the windows, either by stipulation or by
actually closing them permanently. On the contrary, they exercised the right of
receiving light and air through those windows. Neither did the petitioner's predecessor
in interest, Maria Encarnacion Florentino, object to them or demand that they be
close. The easement was therefore created from the time of the death of the original
owner of both estates, so when petitioner bought the land and the camarin thereon
from Maria Encarnancion Florentino, the burden of this easement continued on the
real property so acquired because according to Article 534, "easements are
inseparable from the estate to which they actively or passively pertain."
An incidental question that arises at this juncture is whether or not Article 541 applies
to a division of property by succession. The affirmative has been authoritatively
declared. (Manresa, "Comentarios al Codigo Civil Espanol," vol. 4, p. 619; Sentence
of the Supreme Tribunal of Spain, November 17, 1911).
Petitioner assigns as an error of the Court of Appeals the supposed failure of that
tribunal to pass upon his motion to consider certain allegedly new evidence to prove
that Maria Florentino, the original owner of the properties, died in 1885. Petitioner
alleges that Maria Florentino died in 1885 and, therefore, the Law of the Partidas
should be followed in this case and not the Civil Code. However, the petitioner's
contention cannot be upheld without rejecting the finding of fact made by the Court of
Appeals, as follows:
Hebiendo pasado la propiedad de la casa de manposteria a los
demandantes, a la muerte de Maria Florentino, ocurrida en 1892, (el
demandado sostiene que fue con anterioridad a 1889) no hay duda ninguna
de que los demandantes adquirieron la servidumbre mediante titulo y por
prescripcion (Art. 537).
We cannot review the above finding of fact by the Court of Appeals that Maria
Florentino die in 1892. The evidentiary fact from which the Court of Appeals drew the
above finding is that Gregorio Florentino during the trial in 1938 testified to facts of his
own personal knowledge, and he was then 58 years old, having been born in 1880. If
Maria Florentino, as claimed by petitioner, had died in 1885, Gregorio Florentino
would have been only 5 years of age at the time of Maria Florentino's death. The
Court of Appeals therefore concluded that Maria Florentino died in 1892, when
Gregorio Florentino was ten 12 years of age. We do not believe we can disturb the
finding of the Court of Appeals, because its deductions as to the date of Maria
Florentino's death may be right or wrong, according to one's own reasoning. In other
words, its conclusion of fact from Gregorio Florentino's testimony is not necessarily
and unavoidably mistaken. On the contrary, it is reasonable to believe that a person
58 years old cannot remember facts of inheritance as far back as when he was only 5
years of age.
Furthermore, the burial certificate and the gravestone, whose copy and photograph,
respectively, were offered by petitioner in a motion for new trial filed in the Court of
Appeals, could have been discovered by petitioner before the trial in the Court of First
Instance by the exercise of due diligence. There is no reason why this evidence could
be found when the case was already before the Court of Appeals, but could not be
found before the trial in the Court of First Instance. It was easy, before such trial, for
the petitioner to inquire from the relatives of Maria Florentino as to when she died.
And having ascertained the date, it was also easy to secure the burial certificate and
a photograph of the gravestone, supposing them to be really of Maria Florentino. The
fact is, petitioner never tried to find out such date and never tried to secure the
additional evidence till his counsel raised this issue for the first time before the Court
of Appeals. That Court was therefore died in 1885. (Sec. 497, Act. 190). The
petitioner's statement in his brief (p. 11) that the Court of Appeals neither passed
upon his motion nor took the burial certificate and the gravestone into account is not
true, because the very words of the Court of Appeals clearly show that the Court had
in mind said motion and evidence when the decision was signed. The decision said:
"a la muerte de Maria Florentino ocurrida en 1892 (el demandado sostiene que fue
con anteriodad a 1889)" (Emphasis supplied).
Lastly, the issue as to the date of Maria Florentino's death cannot be raised for the
first time on appeal. Petitioner did not in the trial court allege or prove this point. He
presented this issue for the first time in the Court of Appeals. (Sec. 497, Act. 190).
Let us now consider Article 541 more closely in its application to the easement of light
and view and to the easement not to build higher (altius non tollendi). These two
easements necessarily go together because an easement of light and view requires
that the owner of the servient estate shall not build to a height that will obstruct the
window. They are, as it were, the two sides of the same coin. While an easement of
light and view is positive, that of altius non tollendi is negative. Clemente de Diego
states that when article 538 speaks of the time for the commencement of prescription
for negative easements, "it refers to those negative easements which are the result
and consequence of others that are positive, such as the easement not to build
higher, or not to construct, which is indispensable to the easement of light." (Se
refiere a aquellas servidumbres negativas que son sucuela y consecuencia de otras
positivaas, como la de no levantar mas alto, o de no edificar, que es imprescindible
para la servidumbre de luces.") ("Curso Elemental de Derecho Civil Españos, Comun
y Foral," vol. 3, p. 450). This relation of these two easements should be borned in
mind in connection with the following discussion of (1) the modes of establishing and
acquiring easements; (2) the meaning of article 541; and (3) the doctrine in the case
of Cortes vs. Yu-Tibo.
First, as to the modes of establishing and acquiring easements. According to Article
536, easements are established by law or by will of th owners. Acquisition of
easements is first by title or its equivalent and seconly by prescription. What acts take
the place of title? They are mentioned in Articles 540 and 541, namely, (1) a deed of
recognition by the owner of the servient estate; (2) a final judgment; and (3) an
apparent sign between two estates, established by the owner of both, which is the
case of article 541. Sanchez Roman calls cuh apparent sign under article 541
"supletoria del titulo constitutivo de la servidumbre (Derecho Civil, vol. 3, p. 656). The
same jurist says in regard to the ways of constituting easements:
(Spanish word - page 410)
In the Sentence of the Supreme Tribunal of Spain dated November 7, 1911, it was
held that under article 541 of the Civil Code, the visible and permanent sign of an
easement "is the title that characterizes its existence" ("es el titulo caracteristico de su
existencia.")
It will thus be seen that under article 541 the existence of the apparent sign in the
instance case, to wit, the four windows under consideration, had for all legal purposes
the same character and effect as a title of acquisition of the easement of light and
view by the respondents upon the death of the original owner, Maria Florentino. Upon
the establishment of that easement of light and view, the con-comitant and concurrent
easement of altius non tollendi was also constituted, the heir of the camarin and its
lot, Maria Encarnacion Florention, not having objected to the existence of the
windows. The theory of article 541, of making the existence of the apparent sign
equivalent to a title, when nothing to the contrary is said or done by the two owners, is
sound and correct, because as it happens in this case, there is an implied contract
between them that the easements in question should be constituted.
Analyzing article 541 further, it sees that its wording is not quite felicitous when it says
that the easement should continue. Sound juridical thinking rejects such an idea
because, properly speaking, the easement is not created till the division of the
property, inasmuch as a predial or real easement is one of the rights in another's
property, or jura in re aliena and nobdy can have an easement over his own
property, nimini sua res servit. In the instant case, therefore, when the original owner,
Maria Florentino, opened the windows which received light and air from another lot
belonging to her, she was merely exercising her right of dominion. Consequently, the
moment of the constitution of the easement of light and view, together with that
of altius non tollendi, as the time of the death of the original owner of both properties.
At that point, the requisite that there must be two proprietors — one of the dominant
estate and another of the servient estate — was fulfilled. (Article 530, Civil Code.)
Upon the question of the time when the easement in article 541 is created, Manresa
presents a highly interesting theory, whether one may agree with it or not. He says:
 La servidumbre encubierta, digamoslo asi, por la unidad de dueño, se hace
ostensible, se revela con toda su verdadera importancia al separarse la
propiedad de las fincas o porciones de finca que respectivamente deben
representar el papel de predios sirviente y dominante.
The concealed easement, as it were by the oneness of the owner, becomes
visible, and is revealed in all its importance when the ownership of the estate
or portions of the estate which respectively should play the role of servient
and dominant estates is divided.
Such a view cannot be fully accepted because before the division of the estate there
is only a service in fact but not an easement in the strictly juridical sense between the
two buildings or parcels of land.
We come now to the case of Cortes vs. Yu-Tibo, 2 Phil., 24 decided in 1903, Mr.
Justice, later Chief Justice, Mapa speaking for the Court. Counsel for petitioner
contends that the doctrine in that case is controlling in the present one. If the
essential facts of the two cases were the same, there is not doubt but that the early
opinion would be decisive inasmuch as it is by its cogent reasoning one of the
landmarks in Philippine jurisprudence. However, the facts and theories of both cases
are fundamentally dissimilar. What is more, as will presently be explained, that every
decision makes a distinction between that case and the situation provided for in
article 541. In that case, Cortes sought an injunction to restrain Yu-Tibo from
continuing the construction of certain buildings. Cortes' wife owned a house in Manila
which had windows that had been in existence since 1843. The defendant, who
occupied a house on the adjoining lot, commenced to raise the roof of the house in
such a manner that one-half of the windows in the house owned by plaintiff's wife had
been covered. This Court, in affirming the judgment of the lower court which dissolved
the preliminary injunction, held that the opening of windows through one's own wall
does not in itself create an easement, because it is merely tolerated by the owner of
the adjoining lot, who may freely build upon his land to the extent of covering the
windows, under article 581, and that his kind of easement is negative which can be
acquired through prescription by counting the time from the date when the owner of
the dominant estate in a formal manner forbids the owner of the servient estate from
obstructing the light, which had not been done by the plaintiff in this case.
It will thus be clear that one of the essential differences between that case and the
present is that while the Yu-Tibo case involved acquisition of easement by
prescription, in the present action the question is the acquisition of easement by title,
or its equivalent, under article 541. Therefore, while a formal prohibition was
necessary in the former case in order to start the period of prescription, no such act is
necessary here because the existence of the apparent sign when Maria Florentino
died was sufficient title in itself to created the easement.
Another difference is that while in the Yu-Tibo case, there were tow different owners
of two separate houses from the beginning, in the present case there was only one
original owner of the two structures. Each proprietor in the Yu-Tibo case was merely
exercising his rights of dominion, while in the instant case, the existence of the
apparent sign upon the death of the original owner ipso facto burdened the land
belonging to petitioner's predecessor in interest, with the easements of light and view
and altius non tollendi in virtue of article 541.
The very decision in Cortes vs. Yu-Tibo distinguishes that case from the situation
foreseen in article 541. Said this Court in that case:
It is true that the Supreme Court of Spain, in its decisions of February 7 and
May 5, 1986, has classified as positive easements of light which were the
object of the suits in which these decisions were rendered in cassation, and
from these it might be believed at first glance, that the former holdings of the
supreme court upon this subject had been overruled. But this is not so, as a
matter of fact, inasmuch as there is no conflict between these decisions and
the former decisions above cited.
In the first of the suits referred to, the question turned upon two houses
which had formerly belonged to the same owner, who established a service
of light on one of them for the benefit of the other. These properties were
subsequently conveyed to two different persons, but at the time of the
separation of the property noting was said as to the discontinuance of the
easement, nor were the windows which constituted the visible sign thereof
removed. The new owner of the house subject to the easement endeavored
to free it from the incumbrance, notwithstanding the fact that the easement
had been in existence for thirty-five years, and alleged that the owner of the
dominant estate had not performed any act of opposition which might serve
as a starting point for the acquisition of a prescriptive title. The supreme
court, in deciding this case, on the 7th of February, 1896, held that the
easement in this particular case was positive, because it consisted in the
active enjoyment of the light. This doctrine is doubtless based upon article
541 of the Code, which is of the following tenor: "The existence of apparent
sign of an easement between two tenements, established by the owner of
both of them, shall be considered, should one be sold, as a title for the active
and passive continuance of the easement, unless, at the time of the division
of the ownership of both tenements, the contrary should be expressed in the
deed of conveyance of either of them, or such sign is taken away before the
execution of such deed.'
The word "active" used in the decision quoted in classifying the particular
enjoyment of light referred to therein, presuposes on the part of the owner of
the dominant estate a right to such enjoyment arising, in the particular cases
passed upon by that decision, from the voluntary act of the original owner of
the two houses, by which he imposed upon one of them an easement for the
benefit of the other. It is well known that easements are established, among
other cases, by the will of the owners. (Article 536 of the Code.) It was an act
which was, in fact, respected and acquiesced in by the new owner of the
servient estate, since he purchased it without making any stipulation against
the easement existing thereon, but, on the contrary, acquiesced in the
continuance of the apparent sign thereof. As is stated in the decision itself,
"It is a principle of law that upon a division of a tenement among various
persons — in the absence of any mention in the contract of a mode of
enjoyment different from that to which the former owner was accustomed —
 such easements as may be necessary for the continuation of such
enjoyment are understood to subsist." It will be seen, then, that the phrase
"active enjoyment" involves an idea directly opposed to the enjoyment which
is the result of a mere tolerance on the part of the adjacent owner, and
which, as it is not based upon an absolute, enforceable right, may be
considered as of a merely passive character. (2 Phil., 29-31).
Finally, the Yu-Tibo case was decided upon the theory if the negative easement
of altius non tollendi, while the instant case is predicated on the idea of the positive
easement of light and view under article 541. On this point, suffice it to quote from
Manresa's work. He says:
Que en las servidumbres cuyo aspecto positivo aparece enlazado al
negativo, asi como al efecto de la precripcion ha de considerarse prefente el
aspecto negativo, al efecto del art. 541 basta atender al aspecto positivo, y
asi la exitencia de huecos o ventanas entre dos fincas que fueron de un
mismo dueño es bastante para considerar establecidas, al separarse la
propiedad de esas fincas, las servidumbres de luces o vista, y con ellas las
de no edificar on no levantar mas ato, porque sin estas no prodrian existir
aquellas.
That in easements whose positive aspect appears tied up with the negative
aspect, just as for the purposes of prescription the negative aspect has to be
considered preferential, so for the purposes of Article 541 it is sufficient to
view the positive aspect, and therefore the existence of openings or windows
between two estates which belonged to the same owner is sufficient to
establish, when the ownership of these estates is divided, the easement of
light or view, and with them the easements of altius non tollendi because
without the latter, the former cannot exists.
There are several decisions of the Supreme Court of Spain which have applied Article
541. Some of them are those of February 7, 1986; February 6, 1904; May 29, 1911;
and November 17, 1911.
The sentence of February 7, 1896, dealt with windows established in one house by
the original of two houses. When he died, the two houses were adjudicated to
different heirs. The court held that there was an easement of light.
Considerando que, segun lo establecido por este Supremo Tribunal en
repetidas sentencias, y consignado, muy principalmente, en la dictada en 21
de Octubre de 1892, lo preceptuado en la ley 14, titulo 31 de la Partida 3.a,
al tratar del mode de constituirse las servidumbres, no esta en oposicion con
el pricipio mediante el que, dividida una finca entre diversas personas, sin
que en el contrato se mencione cosa alguna acerca de un modo de
aprovenchamiento distinto del que usaba el primitivo dueño de ella, se
entieden subsistentes las servidumbres ncesarias para que aquel pueda
tener lugar.
Considerando que ese principio y jurisprudencia han obtenido nueva
sancion, puesto que a ellos obedece el concepto claro y concreto del
articulo 541 del Codigo Civil, aplicable al caso, . . . (Ruiz, Codigo Civil, Vol.
V, pp. 349-350).
Considering that, according to what has been established by this Supreme
Tribunal in repeated sentences, and principally declared in the sentence
promulgated on October 21, 1892, the provision of law 14, title 31 of Partida
3 in treating of the mode of constituting easements, is not contrary to the
principle that when an estate is divided between different persons, and in the
contract nothing is said out a mode of enjoyment different from that used by
the original owner thereof, the necessary easements for said mode of
enjoyment are understood to be subsisting;
Considering that such principle and jurisprudence have obtained a new
santion, for due to them is the clear and concrete concept of Article 541
applicable to the case . . . .
Therefore, considering that Maria Florentino died in 1892, according to a finding of
fact by the Court of Appeals, there is an easement of light and view in favor of the
respondents' property under article 541 of the Civil Code.
But granting, arguendo, that Maria Florentino died in 1885, as contended by
petitioner, nevertheless the same principle enunciated in article 541 of the Spanish
Civil Code was already an integral part of the Spanish law prior to the Civil Code, the
easement in question would also have to be upheld. That the law before the Civil
Code was the same as at present is shown by the following:
1. Under Law 14, Title 31, Partida 3, this easement was constituted by an
implied contract among the heirs of Maria Florentino.
2. Granting for the sake of argument that this easement was not created
through an implied contract according to Law 14, Title 31, Partida 3, yet that
provision of the Partidas was not inconsistent with the principle in question,
so that there was a gap in the Partidas which the Supreme Court of Spain
filled up from the Roman Law and modern civil codes, by recognizing the
existence of this kind of easement.
3. Law 17, Title 31, Partida 3 regarding the extinguishment of an easement
did not prohibit the easement in the instant case, Therefore, we should
adhere to the decisions of the Supreme Court of Spain which maintain this
easement under the Spanish law prior to Civil Code.
4. Other considerations show that the principle of apparent sign as
announced by the Supreme Tribunal of Spain is not incompatible with the
Partidas.
First, as to the implied contract. Law 14, Title 31, Partida 3 provided that easements
were acquired by contract, by will and by prescription. Upon the death of the original
owner, Maria Florentino, the four windows under consideration already existed and
were visible. One of the heirs, Maria Encarnacion Florentino, to whom
the camarin and its lot had been devised, having failed to object to the same,
knowingly consented to their continuance. Nor did Gabriel and Jose Florentino
(devisees of the house that had the four windows) permanently close the windows.
There was consequently an implied agreement between her and the devisees of the
house with the four windows to the effect that the service of these windows would
continue, thus creating the easement of light and view and the concomitant easement
of altius non tollendi. Hence, the easement in question was acquired by Gabriel and
Jose Florentino through contract under Law 14, Title 31, Partida 3.
Secondly, with respect to the doctrine of the Supreme Tribunal of Spain. In a series of
decisions of that court, it was held that Law 14, Title 31, Partida 3 was not opposed to
the easement under review. One of those decisions is that of November 7, 1883,
which held:
(Spanish word - page 418)
Other decisions of the Supreme Tribunal of Spain to the same effect are those of
September 14, 1867 and June 7, 1883. (See Scaevola, "Codigo Civil Comentado"
vol. 10, pp. 272-274.)
So that, granting for the sake of argument, that the easement was not created
through an implied contract according to Law 14, Title 31, Partida 3, yet that provision
of the Partidas, according to decisions of the Supreme Tribunal of Spain, was not
inconsistent with the principle in question. The problem in this case not having been
foreseen in Law 14, Title 31, Partida 3, there was a gap in the old legislation, which
the Supreme Tribunal of Spain filled up from the Roman Law and from modern Civil
Codes.
The principle in question was deeply rooted in the Roman Law. It is from the Roman
Law that the Supreme Tribunal of Spain obtained this principle, in order to solve a
question not provided for by the Partidas, whose main source was also the Roman
law. In other words, the Partidas being silent on the point under consideration, the
Supreme Tribunal of Spain resorted to the authoritative voice of the Roman law from
which the Law of the Partidas had derived its inspiration.
The following quotations from the Spanish version the Roman Law Digest will prove
the assertions just made:
(Spanish word - page 419)
Among the modern civil codes which contain the rule in question are those of France,
Belgium, Holland, Portugal, Mexico and Chile. It is presumed that the Supreme
Tribunal of Spain had also in mind at least one of them when it decided cases
involving this principle before the promulgation of the Spanish Civil Code.
When, therefore, Maria Florentino died (supposing she died in 1885), the status of the
Spanish law was in favor of the doctrine in question. We cannot change it because it
was in full force at the time of the alleged date of Maria Florentino's death. We cannot
reject a doctrine established by the Spanish Supreme Tribunal as an integral part of
the Spanish law before the promulgation of the Civil Code in 1889. And we know that
jurisprudence — in the sense of court decisions — is one of the sources of the law.
Thirdly, concerning Law 17, Title 31, Partida 3. It is true that the eminent jurist,
Manresa, is of the opinion that "el precepto del art. 541 no solo no existia en nuestra
antigua legislacion, sino que podia deducirse claramente lo contrario de la ley 17, tit.
31, Partida 3.a . . . ." However, a careful reading of this provision of the Partidas
reveals that the same did not militate against the creation of an easement by an
apparent sign if nothing was said or done when the property is divided. Law 17, Title
31, Partida 3, read as follows:
(spanish word - page 420-21)
This law regulates the extinguishment of an easement by merger of the dominant and
the servient estates. Speaking of this law of the Partidas and of article 546, par. 1, of
the Civil Code, both of which refer to merger of the two estates, Acaevola says: (p.
319, vol. 10)
But there is a world of difference between extinguishment of an easement by merger
of the two estates and the constitution of an easement by an apparent sign when
nothing is done or said upon the division of the property. Law 17, title 31, Partida 3,
having in mind only the modes of extinguishment, the legislator did not intend to cover
the question involved in the present case, which refers to the creation of an
easement.
What, then, are the differences between the extinguishment of an easement by
merger under Law 17, title 31, Partida 3, and the constitution of an easement in this
case, both before and after the Civil Code went into effect?
First, in merger under Law 17, Title 31, Partida 3, there were from the very beginning,
already two separate estates, the dominant and the servient estates, whereas in this
case, there was only one estate.
Second, in merger under said Law 17, there were already two owners, whereas in
this case, there was only one owner, Maria Florentino.
Third, in merger under Law 17, there was already an easement in the legal sense,
whereas in the instant case, there was only a service between the two lots, (while
Maria Florentino was living) but there was as yet no easement from the juridical
viewpoint.
4. Other considerations prove that the principle of apparent sign as enunciated by the
Supreme Tribunal of Spain is not inconsistent with the Partidas. These considerations
are:
 1. Article 537, Civil Code, provides that continuous and apparent easements
are acquired by title, or by prescription. However, side by side with that
article is article 541 which contemplates an easement upon division of an
estate, unless a stipulation to the contrary is agreed upon, or the sign is
destroyed. Bearing in mind that "title" includes a contract, our view is that if
Article 537 and 541 of the Civil Code can stand together, there is no reason
why Law 14, title 31, Partida 3, whereby easements are acquired by
contract, by will and by prescription should be considered incompatible with
the easement under review.
2. Article 546, par. 1 of the Civil Code ordains that by merger of the two
estates in the same owner an easement is extinguished. Yet, coexistent with
such provision is that of article 541 regarding the apparent sign which is a
title for the easement. If these two principles can and do stand together
under the Civil Code, the doctrine laid down by the Supreme Tribunal of
Spain — before the Civil Code was in force — about the effect of an
apparent sign can also stand together with Law 17, title 31, Partida 3
declaring the extinguishment of an easement by merger.
3. Under article 546, par. 1 of the Civil Code, merger extinguishes an
easement. So in case the estate is again divided by purchase, etc., the
easement is not, under the Civil Code automatically revived. That is the
same provision of law 17, title 31, Partida 3, which does not reject the
principle in question, just as article 546, par. 1 of the Civil Code does not
reject article 541 about an apparent sign.
III.
Aside from the foregoing reasons that support the easement under consideration, the
same has been acquired by respondents through prescriptions.
The easement involved in this case is of two aspects: light and view and altius non
tollendi. These two aspects necessarily go together because an easement of light and
view prevents the owner of the sevient estate from building to a height that will
obstruct the windows. This court in Cortes vs. Yu-Tibo, supra, held that the easement
concerned when there is an apparent sign established by the owner of two estates is
positive. Manresa is of the same opinion, supra. This being so, and inasmuch as the
original heirs of Maria Florentino succeeded to these two estates either in 1885 or in
1892 and as petitioner bought one of the lots in 1911, the prescriptive period under
any legislation that may be applied — the Partidas, Civil Code or Code of Civil
Procedure — has elapsed without the necessity of formal prohibition on the owner of
the servient estate. The respondent's action was brought in 1938. The persons who
were present, and 20 years between absentees. (4 Manresa, 605). According to
article 537 of the Civil Code, continous and apparent easements may be acquired by
prescription for 20 years. Under sections 40 and 41 of the Code of Civil Procedure,
the period is 10 years.
IV.
The petitioner maintains that he is an innocent purchaser for value of the lot
and camarin thereon, and that he was not bound to know the existence of the
easement because the mere opening of windows on one's own wall does not ipso
facto create an easement of light. Such contention might perhaps be in point if the
estates had not originally belonged to the same owner, who opened the windows. But
the petitioner was in duty bound to inquire into the significance of the windows,
particularly because in the deed of sale, it was stated that the seller had inherited the
property from her aunt, Maria Florentino. Referring to the Sentence of the Supreme
Court of Spain dated February 7, 1896, which applied Article 541, this Court in the
case of Cortes vs. Yu-Tibo already cited, said that the establishment of the easement
"was an act which was in fact respected and acquiesced in by the new owner of the
servient estate, since he purchased it without making any stipulation against the
easement existing thereon, but on the contrary acquiesced in the new owner of the
servient estate, since he purchased it without making any stipulation against the
easement existing thereon, but on the contrary, acquiesced in the continuance of the
apparent sign thereof." (p. 31). Moreover, it has been held that purchasers of lands
burdened with apparent easements do not enjoy the rights of third persons who
acquire property, though the burden it not recorded. (Sentence of the Supreme
Tribunal of Spain, April 5, 1898).
V.
Let us now discuss the case from the standpoint of justice and public policy.
First. — When Maria Encarnacion Florentino, as one of the devisees, accepted
the camarin and the lot, she could not in fairness receive the benefit without assuming
the burden of the legacy. That burden consisted of the service in fact during the
lifetime of the original owner, which service became a true easement upon her death.
Second. — According to Scaevola, the reason for the principle in question is that
there is a tacit contract. He says in vol. 10, p. 277:
(spanish word - page 424)
Aun hay mas: hay, en nuestro entender, no solo presuncion de voluntad del
enajenante, o sea del dueño de las fincas que estuvieren confundidas, sino
convencion, siquiera sea tacita, entre el vendedor y al adquirente de la finca
vendida. Puesto que pudiendo estipular la no existencia de la servidumbre,
nada dicen o nada hacen, fuerza es presumir que el segundo (comprador)
acepta el estado jurisdico creado por el primero (vendedor).
It is not just to allow Maria Encarnacion Florentino or her successor in interest to
repudiate her own undertaking, implied, it is true, but binding nevertheless. This
easement is therefore a burden which Maria Encarnacion Florentino and her
successor in interest willingly accepted. They cannot now murmur against any
inconvenience consequent upon their own agreement.
Third. During the construction of the new house by the petitioner, the respondents
filed an action to stop the work. But petitioner continued the construction, so that
when the Court of First Instance was ready to pass upon the preliminary injunction,
the work had almost been finished. Petitioner, therefore, cannot complain if he is now
ordered to tear down part of the new structure so as not to shut off the light from
respondents' windows.

Fourth. When petitioner bought this lot from the original coheir, Maria Encarnacion
Florentino, the windows on respondents' house were visible. It was petitioner's duty to
inquire into the significance of those windows. Having failed to do so, he cannot now
question the easement against the property which he purchased.

(spanish word - page 425)

This idea of easements can never become obsolete in the face of modern progress.
On the contrary, its need is all the more pressing and evident, considering that this
mutual assistance and giving way among estates is demanded by the complexities of
modern conditions, such as those which obtain in large cities where buildings, large
and small, are so close together.

VI.

Recapitulating, we believe the easement of light and view has been established in
favor of the property of respondents, for these reasons:

1. Maria Florentino having died in 1892, according to a finding of fact of the

Court of Appeals, which we cannot review, Article 541 of the Civil Code is
applicable to this case.

2. Granting, arguendo, that Maria Florentino died in 1885, nevertheless that

same principle embodied in article 541 of the Civil Code was already an
integral part of the Spanish law before the promulgation of the Civil Code in
1889, and therefore, even if the instant case should be governed by the
Spanish law prior to the Civil Code, the easement in question would also
have to be upheld.

3. The easement under review has been acquired by respondents through

prescription.

4. The petitioner was not an innocent purchaser, as he was in duty bound to

inquire into the significance of the windows.

5. Justice and public policy are on the side of the respondents.

Wherefore, the judgment appealed from should be and is hereby affirmed, with costs
against the petitioner. So ordered.

Yulo, C. J., Moran Imperial, 1 and Havtiveras, 1 JJ., concur.

 [G.R. No. 143643. June 27, 2003]
NATIONAL POWER CORPORATION, petitioner, vs. SPS. JOSE C. CAMPOS, JR.
and MA. CLARA LOPEZ-CAMPOS, respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision [1] dated June 16, 2000 of the Court of
Appeals in CA-G.R. CV No. 54265. The assailed decision affirmed in toto the
Decision[2] of the Regional Trial Court (RTC) of Quezon City, Branch 98, which
ordered petitioner National Power Corporation to pay, among others, actual, moral
and nominal damages in the total amount of P1,980,000 to respondents Spouses
Jose C. Campos, Jr. and Ma. Clara A. Lopez-Campos.
The petition at bar stemmed from the following antecedents:
On February 2, 1996, the respondents filed with the court a quo an action for
sum of money and damages against the petitioner. In their complaint, the
respondents alleged that they are the owners of a parcel of land situated in Bo. San
Agustin, Dasmarias, Cavite, consisting of 66,819 square meters (subject property)
covered by Transfer Certificate of Title (TCT) No. T-957323. Sometime in the middle
of 1970, Dr. Paulo C. Campos, who was then the President of the Cavite Electric
Cooperative and brother of respondent Jose C. Campos, Jr., verbally requested the
respondents to grant the petitioner a right-of-way over a portion of the subject
property. Wooden electrical posts and transmission lines were to be installed for the
electrification of Puerto Azul. The respondents acceded to this request upon the
condition that the said installation would only be temporary in nature. The petitioner
assured the respondents that the arrangement would be temporary and that the
wooden electric posts would be relocated as soon as permanent posts and
transmission lines shall have been installed.Contrary to the verbal agreement of the
parties, however, the petitioner continued to use the subject property for its wooden
electrical posts and transmission lines without compensating the respondents
therefor.[3]
The complaint likewise alleged that some time in 1994, the petitioners agents
trespassed on the subject property and conducted engineering surveys thereon. The
respondents caretaker asked these agents to leave the property. Thereafter, in 1995,
a certain Mr. Raz, who claimed to be the petitioners agent, went to the office of
respondent Jose C. Campos, Jr., then Associate Justice of the Supreme Court, and
requested permission from the latter to enter the subject property and conduct a
survey in connection with the petitioners plan to erect an all-steel transmission line
tower on a 24-square meter area inside the subject property. Respondent Jose
Campos, Jr., refused to grant the permission and expressed his preference to talk to
the Chief of the Calaca Sub-station or the head of the petitioners Quezon City
office. The respondents did not hear from Mr. Raz or any one from the petitioners
office since then.Sometime in July or August of 1995, the petitioners agents again
trespassed on the subject property, presenting to the respondents caretaker a letter
of authority purportedly written by respondent Jose C. Campos, Jr. When the
caretaker demanded that the letter be given to him for verification with respondent
Jose C. Campos, Jr. himself, the petitioners agents refused to do so. Consequently,
the caretaker ordered the agents to leave the subject property. [4]
The complaint further alleged that on December 12, 1995, the petitioner
instituted an expropriation case involving the subject property before the RTC of
Imus, Cavite, Branch 22. The case was docketed as Civil Case No. 1174-95. The
petitioner alleged in its complaint therein that the subject property was selected in a
manner compatible with the greatest public good and the least private injury and that
it (petitioner) had tried to negotiate with the respondents for the acquisition of the
right-of-way easement on the subject property but that the parties failed to reach an
amicable settlement.[5]
The respondents maintained that, contrary to the petitioners allegations, there
were other more suitable or appropriate sites for the petitioners all-steel transmission
lines and that the petitioner chose the subject property in a whimsical and capricious
manner. The respondents averred that the proposed right-of-way was not the least
injurious to them as the system design prepared by the petitioner could be further
revised to avoid having to traverse the subject property. The respondents vigorously
denied negotiating with the petitioner in connection with the latters acquisition of a
right-of-way on the subject property.[6]
Finally, the complaint alleged that unaware of the petitioners intention to
expropriate a portion of the subject property, the respondents sold the same to Solar
Resources, Inc. As a consequence, the respondents stand to lose a substantial
amount of money derived from the proceeds of the sale of the subject property should
the buyer (Solar Resources, Inc.) decide to annul the sale because of the
contemplated expropriation of the subject property.[7]
The complaint a quo thus prayed that the petitioner be adjudged liable to pay
the respondents, among others, actual, nominal and moral damages:
WHEREFORE, premises considered, it is respectfully prayed that the Honorable
Court award the plaintiffs:
a. Actual damages for the use of defendants property since middle 1970s,
including legal interest thereon, as may be established during the
trial;
b. P1,000,000.00 as nominal damages;
c. P1,000,000.00 as moral damages;
d. Lost business opportunity as may be established during the trial;
e. P250,000.00 as attorneys fees;
f. Costs of suit.
Plaintiffs pray for other, further and different reliefs as may be just and equitable
under the premises.[8]
Upon receipt of the summons and complaint, the petitioner moved for additional
time to file its responsive pleading. However, instead of filing an answer to the
complaint, the petitioner filed a motion to dismiss on the ground that the action had
prescribed and that there was another action pending between the same parties for
the same cause (litis pendencia). The respondents opposed said motion. On May 2,
1996, the RTC issued an order denying the petitioners motion to dismiss.
The petitioner then moved for reconsideration of the aforesaid order. The
respondents opposed the same and moved to declare the petitioner in default on the
ground that its motion for reconsideration did not have the required notice of hearing;
hence, it did not toll the running of the reglementary period to file an answer.
On July 15, 1996, the RTC issued an order denying the petitioners motion for
reconsideration. Subsequently, on July 24, 1996, it issued another order granting the
respondents motion and declared the petitioner in default for its failure to file an
answer. The petitioner filed a motion to set aside the order of default but the same
was denied by the RTC.
The petitioner filed a petition for certiorari, prohibition and preliminary injunction
with the Court of Appeals, docketed as CA-G.R. SP No. 41782, assailing the May 2,
1996, July 15, 1996 and July 24, 1996 Orders issued by the RTC as having been
issued with grave abuse of discretion and to enjoin it from proceeding with the
case. On February 13, 1996, the CA dismissed the petition for certiorari, prohibition
and preliminary injunction filed by the petitioner in CA-G.R. SP No. 41782.
In the meantime, the respondents adduced their evidence ex parte in the
RTC. As synthesized by the trial court, the respondents adduced evidence, thus:
From the evidence thus far submitted, it appears that the plaintiffs spouses, both of
whom professional of high standing in society, are the absolute owners of a certain
parcel of land situated in Bo. San Agustin, Dasmarias, Cavite, consisting of 66,819
square meters, more or less, covered and embraced in TCT No. T-95732. Sometime
in the mid-1970, Dr. Paulo C. Campos, brother of Justice Jose Campos, Jr., then
President of the Cavite Electric Cooperative, approached the latter and confided to
him the desire of the National Power Corporation to be allowed to install temporary
wooden electric posts on the portion of his wifes property in order that the high-
tension transmission line coming from Kaliraya passing thru that part of Cavite can be
continued to the direction of Puerto Azul.
Having heard the plea of his brother and the fact that National Power Corporation was
under pressure because at the time that Puerto Azul was being developed there was
no electricity nor was there electrical lines towards that place and acting on the belief
that the installation of wooden electric posts would be temporary in nature, plaintiffs
gave oral permission for the NPC personnel to enter the said parcel of land. Dr. Paulo
C. Campos, assured him that it was just a temporary measure to meet the emergency
need of the Puerto Azul and that the wooden electric posts will be relocated when a
permanent posts and transmission lines shall have been installed. Pursuant to their
understanding, the National Power Corporation installed wooden posts across a
portion of plaintiffs property occupying a total area of about 2,000 square meters
more or less. To date, defendant NPC has been using the plaintiffs property for its
wooden electrical posts and transmission lines; that the latter has estimated that the
aggregate rental (which they peg at the conservative rate of P1.00 per square meter)
of the 2,000 square meters for twenty-four (24) years period, would amount to the
aggregate sum of P480,000.00.
From the time National Power Corporation installed those temporary wooden posts,
no notice was ever served upon the plaintiffs of their intention to relocate the same or
to install permanent transmission line on the property. Also, there was no personal
contact between them. However, in late 1994, plaintiffs overseer found a group of
persons of the defendant NPC conducting survey inside the said property, and were
asked to leave the premises upon being discovered that they have no authority to do
so from the owners thereof. Subsequently thereafter, or sometime in 1995, a person
by the name of Mr. Paz, bearing a letter from Calaca Regional Office, went to see
Justice Jose C. Campos, Jr. in his office, informing the latter that he was authorized
by the National Power Corporation to acquire private lands. In the same breath, Mr.
Paz requested his permission to let NPC men enter the subject property and to
conduct a survey in connection with its plan to erect an all steel transmission line
tower on a 24 square meter area inside plaintiffs property, but same was
denied. Justice Campos, however, expressed his preference to talk instead to the
Chief of the Calaca Sub-station or the Head of the NPC, Quezon City office. Since
then, nothing however transpired.
Sometime in July or August 1995, plaintiffs learned that defendants agents again
entered the subject property. This time, they have presented to the caretaker a letter
of authority supposedly from Justice Jose C. Campos, Jr. And, when prodded to see
the letter for verification, defendants agents refused to do so. So, they were ordered
out of the vicinity. Plaintiffs stressed that defendants repeated intrusions into their
property without their expressed knowledge and consent had impugned on their
constitutional right to protection over their property.
Later, on December 12, 1995, plaintiffs received copy of summons and complaint in
Civil Case No. 1174-95 filed by the defendant before the Regional Trial Court, Fourth
Judicial Region, Branch 22, Imus, Cavite for the expropriation of 5,320 square meters
of plaintiffs above-described property to be used as right-of-way for the all-steel
transmission line tower of the Calaca-Dasmarias 230 KV T/L Project. But what had
caused plaintiffs discomfiture is the allegation in said complaint stating that the parcel
of land sought to be expropriated has not been applied to nor expropriated for any
public use and is selected by plaintiff in a manner compatible with the greatest good
and the least private injury and that defendant had negotiated with (plaintiffs) for the
acquisition of the right-of-way easement over the portion of the same for the public
purpose as above-stated at a price prescribed by law, but failed to reach an
agreement with them notwithstanding the repeated negotiations between the parties.
Plaintiffs assert that at no instance was there a negotiation between them and the
NPC or its representative. The alleged talk initiated by Mr. Paz with Justice Campos,
Jr. just ended in the latters remonstrance and in prevailing upon the former of his
preference to discuss the matter with a more responsible officer of the National Power
Corporation, such as the Chief of the Calaca Sub-Station or the Head of NPCs Office
in Quezon City. But plaintiffs plea just fell on the deaf ear. The next thing they know
was Civil Case No. Q-1174-95 already filed in court. A party to a case shall not do
falsehood nor shall mislead or misrepresent the contents of its pleading. That gross
misrepresentation had been made by the National Power Corporation in their said
pleading is irrefutable.
Plaintiffs-spouses Campos declared that there are other areas more suitable or
appropriate that can be utilized as alternative sites for the all-steel transmission line
tower. Just a few meters from the planned right-of-way is an abandoned road
occupied by squatters; it is a government property and the possession of which the
NPC need not compensate. The latter had not exercised judiciously in the proper
selection of the property to be appropriated. Evidently, NPCs choice was whimsical
and capricious. Such arbitrary selection of plaintiffs property despite the availability of
another property in a manner compatible with the greatest public good and the least
private injury, constitutes an impermissible encroachment of plaintiffs proprietary
rights and their right to due process and equal protection.
Concededly, NPCs intention is to expropriate a portion of plaintiffs property. This
limitation on the right of ownership is the paramount right of the National Power
Corporation granted by law. But before a person can be deprived of his property
through the exercise of the power of eminent domain, the requisites of law must
strictly be complied with. (Endencia vs. Lualhati, 9 Phil. 177) No person shall be
deprived of his property except by competent authority and for public use and always
upon payment of just compensation. Should this requirement be not first complied
with, the courts shall protect and, in a proper case, restore the owner in his
possession. (Art. 433 Civil Code of the Philippines)
Records disclose that in breach of such verbal promise, defendant NPC had not
withdrawn the wooden electrical posts and transmission lines; said wooden electrical
posts and transmission lines still occupy a portion of plaintiffs property; that the NPC
had benefited from them for a long period of time already, sans compensation to the
owners thereof.
Without first complying with the primordial requisites appurtenant to the exercise of
the power of eminent domain, defendant NPC again boldly intruded into plaintiffs
property by conducting engineering surveys with the end in view of expropriating
5,320 square meters thereof to be used as right-of-way for the all-steel transmission
line tower of the Calaca-Dasmarias 230 KV T/L Project. Such acts constitute a
deprivation of ones property for public use without due compensation. It would
therefore seem that the expropriation had indeed departed from its own purpose and
turns out to be an instrument to repudiate compliance with obligation legally and
validly contracted.[9]
On September 26, 1996, the RTC rendered a decision finding the petitioner
liable for damages to the respondents. The dispositive portion of the RTC decision
reads:
WHEREFORE, in view of the foregoing consideration, justment [sic] is hereby
rendered in favor of the plaintiffs, condemning the defendant to pay
(a) Actual damages of P480,000.00 for the use of plaintiffs property;
(b) One Million Pesos (P1,000,000.00) as moral damages;
(c ) Five Hundred Thousand Pesos (P500,000.00) as nominal damages;
(d) One Hundred Fifty Thousand Pesos (P150,000.00) as attorneys fees;
and
(e) Costs of suit in the amount of P11,239.00.
SO ORDERED.[10]
The petitioner appealed the decision to the Court of Appeals which on June 16,
1990 rendered a decision affirming the ruling of the RTC.
Essentially, the CA held that the respondents claim for compensation and
damages had not prescribed because Section 3(i) of the petitioners Charter, Republic
Act No. 6395, as amended, is not applicable to the case. The CA likewise gave scant
consideration to the petitioners claim that the respondents complaint should be
dismissed on the ground of litis pendencia. According to the CA, the complaint a
quo was the more appropriate action considering that the venue for the expropriation
case (Civil Case No. 1174-95) was initially improperly laid. The petitioner filed the
expropriation proceedings with the RTC in Imus, Cavite, when the subject property is
located in Dasmarias, Cavite. Moreover, the parties in the two actions are not the
same since the respondents were no longer included as defendants in the petitioners
amended complaint in the expropriation case (Civil Case No. 1174-95) but were
already replaced by Solar Resources, Inc., the buyer of the subject property, as
defendant therein.
The CA likewise found the damages awarded by the RTC in favor of the
respondents just and reasonable under the circumstances obtaining in the case.
The petitioner now comes to this Court seeking to reverse and set aside the
assailed decision. The petitioner alleges as follows:
I
The Court of Appeals grievously erred and labored under a gross misapprehension of
fact in finding that the Complaint below should not be dismissed on the ground of
prescription.
II
The Court of Appeals erred in affirming the award of nominal and moral damages,
attorneys fees and costs of litigation.[11]
Citing Article 620 of the Civil Code, the petitioner contends that it had already
acquired the easement of right-of-way over the portion of the subject property by
prescription, the said easement having been allegedly continuous and apparent for a
period of about twenty-three (23) years, i.e., from about the middle of 1970 to the
early part of 1994. The petitioner further invokes Section 3(i) of its Charter in
asserting that the respondents already waived their right to institute any action for
compensation and/or damages concerning the acquisition of the easement of right-of-
way in the subject property. Accordingly, the petitioner concludes that the award of
damages in favor of the respondents is not warranted.
The petition is bereft of merit.
The petitioners claim that, under Article 620 of the Civil Code, it had already
acquired by prescription the easement of right-of-way over that portion of the subject
property where its wooden electric posts and transmission lines were erected is
untenable. Article 620 of the Civil Code provides that:
Art. 620. Continuous and apparent easements are acquired either by virtue of a title
or by prescription of ten years.
Prescription as a mode of acquisition requires the existence of the following: (1)
capacity to acquire by prescription; (2) a thing capable of acquisition by prescription;
(3) possession of the thing under certain conditions; and (4) lapse of time provided by
law.[12] Acquisitive prescription may either be ordinary, in which case the possession
must be in good faith and with just title,[13] or extraordinary, in which case there is
neither good faith nor just title. In either case, there has to be possession which must
be in the concept of an owner, public, peaceful and uninterrupted. [14] As a corollary,
Article 1119 of the Civil Code provides that:
Art. 1119. Acts of possessory character executed in virtue of license or by mere
tolerance of the owner shall not be available for the purposes of possession.
In this case, the records clearly reveal that the petitioners possession of that
portion of the subject property where it erected the wooden posts and transmission
lines was merely upon the tolerance of the respondents. Accordingly, this permissive
use by the petitioner of that portion of the subject property, no matter how long
continued, will not create an easement of right-of-way by prescription. The case
of Cuaycong vs. Benedicto[15] is particularly instructive. In that case, the plaintiffs for
more than twenty years made use of the road that passed through the hacienda
owned by the defendants, being the only road that connected the plaintiffs hacienda
to the public road. The defendants closed the road in question and refused the use of
the same unless a toll was paid. The plaintiffs therein brought an action to enjoin the
defendants from interfering with the use of the road. In support of their action, the
plaintiffs presented evidence tending to show that they have acquired the right-of-way
through the road by prescription. This Court rejected the contention, holding as
follows:
Had it been shown that the road had been maintained at the public expense, with the
acquiescence of the owners of the estates crossed by it, this would indicate such
adverse possession by the government as in course of time would ripen into title or
warrant the presumption of a grant or of a dedication. But in this case there is no such
evidence, and the claims of plaintiffs, whether regarded as members of the public
asserting a right to use the road as such, or as persons claiming a private easement
of way over the land of another must be regarded as resting upon the mere fact of
user.
If the owner of a tract of land, to accommodate his neighbors or the public in general,
permits them to cross his property, it is reasonable to suppose that it is not his
intention, in so doing, to divest himself of the ownership of the land so used, or to
establish an easement upon it, and that the persons to whom such permission, tacit
or express, is granted, do not regard their privilege of use as being based upon
anything more than the mere tolerance of the owner. Clearly, such permissive use is
in its inception based upon an essentially revocable license. If the use continues for a
long period of time, no change being made in the relations of the parties by any
express or implied agreement, does the owner of the property affected lose his right
of revocation? Or, putting the same question in another form, does the mere
permissive use ripen into title by prescription?
It is a fundamental principle of the law in this jurisdiction concerning the possession of
real property that such possession is not affected by acts of a possessory character
which are merely tolerated by the possessor, which are or due to his license (Civil
Code, arts. 444 and 1942). This principle is applicable not only with respect to the
prescription of the dominium as a whole, but to the prescription of right in rem. In the
case of Cortes vs. Palanca Yu-Tibo (2 Phil. Rep., 24, 38), the Court said:
The provision of article 1942 of the Civil Code to the effect that acts which are merely
tolerated produce no effect with respect to possession is applicable as much to the
prescription of real rights as to the prescription of the fee, it being a glaring and self-
evident error to affirm the contrary, as does the appellant in his motion
papers. Possession is the fundamental basis of prescription. Without it no kind of
prescription is possible, not even the extraordinary. Consequently, if acts of mere
tolerance produce no effect with respect to possession, as that article provides, in
conformity with article 444 of the same Code, it is evident that they can produce no
effect with respect to prescription, whether ordinary or extraordinary. This is true
whether the prescriptive acquisition be of a fee or of real rights, for the same reason
holds in one and the other case; that is, that there has been no true possession in the
legal sense of the word. (Citations omitted)
Possession, under the Civil Code, to constitute the foundation of a prescriptive right,
must be possession under claim of title (en concepto de dueo), or to use the common
law equivalent of the term, it must be adverse. Acts of possessory character
performed by one who holds by mere tolerance of the owner are clearly not en
concepto de dueo, and such possessory acts, no matter how long so continued, do
not start the running of the period of prescription.[16]
Following the foregoing disquisition, the petitioners claim that it had acquired the
easement of right-of-way by prescription must perforce fail. As intimated above,
possession is the fundamental basis of prescription, whether ordinary or
extraordinary. The petitioner never acquired the requisite possession in this case. Its
use of that portion of the subject property where it erected the wooden poles and
transmission lines was due merely to the tacit license and tolerance of the
respondents. As such, it cannot be made the basis of the acquisition of an easement
of right-of-way by prescription.
 Neither can the petitioner invoke Section 3(i) of its Charter (Rep. Act No. 6395,
as amended) to put up the defense of prescription against the respondents. The said
provision reads in part:
Sec. 3(i). The Corporation or its representatives may also enter upon private property
in the lawful performance or prosecution of its business or purposes, including the
construction of transmission lines thereon; Provided, that the owner of such private
property shall be paid the just compensation therefor in accordance with the
provisions hereinafter provided; Provided, further, that any action by any person
claiming compensation and/or damages shall be filed within five years after the right-
of-way, transmission lines, substations, plants or other facilities shall have been
established: Provided, finally, that after the said period no suit shall be brought to
question the said right-of-way, transmission lines, substations, plants or other facilities
nor the amounts of compensation and/or damages involved;
Two requisites must be complied before the above provision of law may be
invoked:
1. The petitioner entered upon the private property in the lawful
performance or prosecution of its businesses or purposes; and
2.The owner of the private property shall be paid the just compensation
therefor.
As correctly asserted by the respondents, Section 3(i) of Rep. Act No. 6395, as
amended, presupposes that the petitioner had already taken the property through a
negotiated sale or the exercise of the power of eminent domain, and not where, as in
this case, the petitioner was merely temporarily allowed to erect wooden electrical
posts and transmission lines on the subject property. Significantly, the provision uses
the term just compensation, implying that the power of eminent domain must first be
exercised by the petitioner in accordance with Section 9, Article III of the Constitution,
which provides that no private property shall be taken for public use without just
compensation.
This Courts ruling in Lopez vs. Auditor General[17] is likewise in point:
The petitioner brought this case to this Court on the sole issue of prescription. He
cites Alfonso vs. Pasay City in which a lot owner was allowed to bring an action to
recover compensation for the value of his land, which the Government had taken for
road purposes, despite the lapse of thirty years (1924-1954). On the other hand, the
respondents base their defense of prescription on Jaen vs. Agregado which held an
action for compensation for land taken in building a road barred by prescription
because it was brought after more than ten years (i.e., thirty three years, from 1920 to
1953). They argue that the ruling in Alfonso cannot be applied to this case because,
unlike Alfonso who made repeated demands for compensation within ten years,
thereby interrupting the running of the period of prescription, the petitioner here filed
his claim only in 1959.
It is true that in Alfonso vs. Pasay City this Court made the statement that registered
lands are not subject to prescription and that on grounds of equity, the government
should pay for private property which it appropriates though for the benefit of the
public, regardless of the passing of time. But the rationale in that case is that where
private property is taken by the Government for public use without first acquiring title
thereto either through expropriation or negotiated sale, the owners action to recover
the land or the value thereof does not prescribe. This is the point that has been
overlooked by both parties.
On the other hand, where private property is acquired by the Government and all that
remains is the payment of the price, the owners action to collect the price must be
brought within ten years otherwise it would be barred by the statue of limitations. [18]
Thus, the five-year period provided under Section 3(i) of Rep. Act No. 6395, as
amended, within which all claims for compensation and/or damages may be allowed
against the petitioner should be reckoned from the time that it acquired title over the
private property on which the right-of-way is sought to be established. Prior thereto,
the claims for compensation and/or damages do not prescribe. In this case, the
findings of the CA is apropos:
Undeniably, NPC never acquired title over the property over which its wooden
electrical posts and transmission lines were erected. It never filed expropriation
proceedings against such property. Neither did it negotiate for the sale of the same. It
was merely allowed to temporarily enter into the premises. As NPCs entry was gained
through permission, it had no intention to acquire ownership either by voluntary
purchase or by the exercise of eminent domain.[19]
The petitioner instituted the expropriation proceedings only on December 12,
1995. Indisputably, the petitioner never acquired title to that portion of the subject
property where it erected the wooden electrical posts and transmission lines. Until
such time, the five-year prescriptive period within which the respondents right to file
an action to claim for compensation and/or damages for the petitioners use of their
property does not even commence to run. The CA thus correctly ruled that Section
3(i) of Rep. Act No. 6395, as amended, finds no application in this case and that the
respondents action against the petitioner has not prescribed.
With respect to the damages awarded in favor of the respondents, the petitioner
avers, thus:
The Court of Appeals erred in
affirming the award of nominal
and moral damages, attorneys
fees and costs of litigation.
It follows from Section 31(c) of R.A. 6395 that the award moral and nominal damages,
as well as attorneys fees and costs are baseless. The right to claim them has likewise
prescribed.[20]
With our ruling that the claims of the respondents had not prescribed, the
petitioners contention that the respondents are not entitled to moral and nominal
damages and attorneys fees must fail. In affixing the award for moral and nominal
damages and attorneys fees, the CA ratiocinated:
With respect to the fourth assignment of error, this Court is not persuaded to reverse
much less modify the court a quos findings.
An award of moral damages would require certain conditions to be met, to wit: (1)
first, there must be an injury, whether physical, mental or psychological, clearly
sustained by the claimant; (2) second, there must be a culpable act or omission
factually established; (3) third, the wrongful act or omission of the defendant is the
proximate cause of the injury sustained by the claimant; and (4) fourth, the award of
damages is predicated on any of the cases stated in Article 2219 of the Civil Code.
NPC made it appear that it negotiated with the appellees when no actual negotiations
took place. This allegation seriously affected the on-going sale of the property to
Solar Resources, Inc. as appellees seemed to have sold the property knowing fully
well that a portion thereof was being expropriated. Such an act falls well within Article
21 of the Civil Code. NPCs subterfuge certainly besmirched the reputation and
professional standing of Justice Jose C. Campos, Jr. and Professor Maria Clara A.
Lopez-Campos, and caused them physical suffering, mental anguish, moral shock
and wounded feelings.
The records show that Justice Campos career included, among other[s], being a
Professor of Law at the University of the Philippines; Acting Chairman of the Board of
Transportation; Presiding Judge of the Court of First Instance of Pasay City, and
Associate Justice of the Court of Appeals. Such career reached its apex when he was
appointed Associate Justice of the Supreme Court in 1992. Justice Campos was a
member of the Judicial and Bar Council when NPC filed its Civil Case No. 1174-
95. Professor Maria Clara A. Lopez-Campos is a noted authority in Corporate and
Banking Laws and is a Professor Emerita of the University of the Philippines from
1981 to the present. She had taught more than three decades at the College of
Law. Against such backdrop, it does not take too much imagination to conclude that
the oppressive and wanton manner in which NPC sought to exercise its statutory right
of eminent domain warranted the grant of moral damages.
On the award of nominal damages, such are adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered
by him. As previously discussed, it does not brood well for a government entity such
as NPC to disregard the tenets of private property enshrined in the Constitution. NPC
not only intentionally trespassed on appellees property and conducted engineering
surveys thereon but also sought to fool the appellees caretaker by claiming that such
entry was authorized.Moreover, NPC even justifies such trespass as falling under its
right to expropriate the property. Under the circumstances, the award of nominal
damages is sustained.
That NPCs highhanded exercise of its right of eminent domain constrained the
appellees to engage the services of counsel is obvious. As testified upon, the
appellees engaged their counsel for an agreed fee of P250,000.00. The trial court
substantially reduced this to P150,000.00. Inasmuch as such services included not
only the present action but also those for Civil Case No. 1174-95 erroneously filed by
NPC with the Regional Trial Court of Imus, Cavite, and the Petition for Certiorari in
CA-GR No. 41782, this Court finds such attorneys fees to be reasonable and
equitable.[21]
We agree with the CA.
The award of moral damages in favor of the respondents is proper given the
circumstances obtaining in this case. As found by the CA:
NPC made it appear that it negotiated with the appellees when no actual negotiation
took place. This allegation seriously affected the on-going sale of the property to
Solar Resources, Inc. as appellees seemed to have sold the property knowing fully
well that a portion thereof was being expropriated. Such an act falls well within Article
21 of the Civil Code. NPCs subterfuge certainly besmirched the reputation and
professionally standing of Justice Jose C. Campos, Jr. and Professor Maria Clara A.
Lopez-Campos, and caused them physical suffering, mental anguish, moral shock
and wounded feelings.
The records show that Justice Campos career included, among other[s], being a
Professor of Law at the University of the Philippines; Acting Chairman of the Board of
Transportation; Presiding Judge of the Court of First Instance of Pasay City, and
Associate Justice of the Court of Appeals. Such career reached its apex when he was
appointed Associate Justice of the Supreme Court in 1992. Justice Campos was a
member of the Judicial and Bar Council when NPC filed its Civil Case No. 1174-
95. Professor Maria Clara A. Lopez-Campos is a noted authority in Corporate and
Banking Laws and is a Professor Emerita of the University of the Philippines from
1981 to the present. She had taught more than three decades at the College of
Law. Against such backdrop, it does not take too much imagination to conclude that
the oppressive and wanton manner in which NPC sought to exercise its statutory right
of eminent domain warranted the grant of moral damages.[22]
Further, nominal damages are adjudicated in order that a right of the plaintiff,
which has been violated or invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered
by him.[23] Similarly, the court may award nominal damages in every case where any
property right has been invaded.[24] The petitioner, in blatant disregard of the
respondents proprietary right, trespassed the subject property and conducted
engineering surveys thereon. It even attempted to deceive the respondents caretaker
by claiming that its agents were authorized by the respondents to enter the property
when in fact, the respondents never gave such authority. Under the circumstances,
the award of nominal damages is likewise warranted.
Finally, the award of attorneys fees as part of damages is deemed just and
equitable considering that by the petitioners unjustified acts, the respondents were
obviously compelled to litigate and incur expenses to protect their interests over the
subject property.[25]
WHEREFORE, the petition is hereby DENIED for lack of merit. The assailed
Decision dated June 16, 2000 of the Court of Appeals in CA-G.R. CV No. 54265 is
AFFIRMED in toto.
SO ORDERED.
 [G.R. No. 124699. July 31, 2003]
BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF APPEALS AND
HEIRS OF MAGDALENO VALDEZ SR., respondents.
DECISION
CORONA, J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to
annul and set aside the decision[1] dated November 17, 1995 of the Court of Appeals,
Tenth Division, which reversed the decision[2] dated November 27, 1991 of the
Regional Trial Court of Cebu City, Branch IX, which ruled in favor of herein petitioner,
Bogo-Medellin Milling Company, Inc. and dismissed herein private respondents'
complaint for payment of compensation and/or recovery of possession of real
property and damages with application for restraining order or preliminary injunction;
and its resolution dated March 2, 1996 denying petitioner's motion for reconsideration.
The antecedent facts follow.
Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez,
Angelina Valdez-Novabos, Teresita Argawanon-Mangubat and Daylinda Argawanon-
Melendres (hereafter the heirs), purchased from Feliciana Santillan, on December 9,
1935, a parcel of unregistered land covered by Tax Declaration No. 3935 with an area
of one hectare, 34 ares and 16 centares, located in Barrio Dayhagon, Medellin,
Cebu.[3] He took possession of the property and declared it for tax purposes in his
name.[4]
Prior to the sale, however, the entire length of the land from north to south was
already traversed in the middle by railroad tracks owned by petitioner Bogo-Medellin
Milling Co., Inc. (hereafter Bomedco). The tracks were used for hauling sugar cane
from the fields to petitioners sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents
inherited the land. However, unknown to them, Bomedco was able to have the
disputed middle lot which was occupied by the railroad tracks placed in its name in
the Cadastral Survey of Medellin, Cebu in 1965. The entire subject land was divided
into three, namely, Cadastral Lot Nos. 953, 954 and 955. Lot Nos. 953 and 955
remained in the name of private respondents. However, Lot No. 954, the narrow lot
where the railroad tracks lay, was claimed by Bomedco as its own and was declared
for tax purposes in its name. [5]
It was not until 1989 when private respondents discovered the aforementioned
claim of Bomedco on inquiry with the Bureau of Lands. Through their lawyer, they
immediately demanded the legal basis for Bomedco's claim over Cadastral Lot No.
954 but their letter of inquiry addressed to petitioner went unheeded, as was their
subsequent demand for payment of compensation for the use of the land.[6]
On June 8, 1989, respondent heirs filed a Complaint for Payment of
Compensation and/or Recovery of Possession of Real Property and Damages with
Application for Restraining Order/Preliminary Injunction against Bomedco before the
Regional Trial Court of Cebu.[7] Respondent heirs alleged that, before she sold the
land to Valdez, Sr. in 1935, Santillan granted Bomedco, in 1929, a railroad right of
way for a period of 30 years. When Valdez, Sr. acquired the land, he respected the
grant. The right of way expired sometime in 1959 but respondent heirs allowed
Bomedco to continue using the land because one of them was then an employee of
the company.[8]
In support of the complaint, they presented an ancient document ― an original
copy of the deed of sale written in Spanish and dated December 9, 1935 [9] ― to
evidence the sale of the land to Magdaleno Valdez, Sr.; several original real estate
tax receipts[10] including Real Property Tax Receipt No. 3935[11] dated 1922 in the
name of Graciano de los Reyes, husband of Feliciana Santillan, and Real Property
Tax Receipt No. 09491[12] dated 1963 in the name of Magdaleno Valdez, Sr.
Magdaleno Valdez, Jr. also testified for the plaintiffs during the trial.
On the other hand, Bomedcos principal defense was that it was the owner and
possessor of Cadastral Lot No. 954, having allegedly bought the same from Feliciana
Santillan in 1929, prior to the sale of the property by the latter to Magdaleno Valdez,
Sr. in 1935. It also contended that plaintiffs claim was already barred by prescription
and laches because of Bomedcos open and continuous possession of the property
for more than 50 years.
Bomedco submitted in evidence a Deed of Sale [13] dated March 18, 1929; seven
real estate tax receipts[14] for the property covering the period from 1930 to 1985; a
1929 Survey Plan of private land for Bogo-Medellin Milling Company;[15] a Survey
Notification Card;[16] Lot Data Computation for Lot No. 954;[17] a Cadastral Map for
Medellin Cadastre[18] as well as the testimonies of Vicente Basmayor, Geodetic
Engineer and property custodian for Bomedco, and Rafaela A. Belleza, Geodetic
Engineer and Chief of the Land Management Services of the DENR, Region VIII.
In its decision dated November 27, 1991, the trial court [19] rejected Bomedco's
defense of ownership on the basis of a prior sale, citing that its evidence a xerox copy
of the Deed of Sale dated March 18, 1929 was inadmissible and had no probative
value. Not only was it not signed by the parties but defendant Bomedco also failed to
present the original copy without valid reason pursuant to Section 4, Rule 130 of the
Rules of Court.[20]
Nonetheless, the trial court held that Bomedco had been in possession of
Cadastral Lot No. 954 in good faith for more than 10 years, thus, it had already
acquired ownership of the property through acquisitive prescription under Article 620
of the Civil Code. It explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT easements can
be acquired by prescription after ten (10) years. The apparent characteristic of the
questioned property being used by defendant as an easement is no longer at issue,
because plaintiffs themselves had acknowledged that the existence of the railway
tracks of defendant Bomedco was already known by the late Magdaleno Valdez,
herein plaintiffs predecessor-in-interest, before the late Magdaleno Valdez purchased
in 1935 from the late Feliciana Santillan the land described in the Complaint where
defendants railway tracks is traversing [sic] (TSN of February 5, 1991, pp. 7-8). As to
the continuity of defendants use of the strip of land as easement is [sic] also manifest
from the continuous and uninterrupted occupation of the questioned property from
1929 up to the date of the filing of the instant Complaint. In view of the defendants
UNINTERRUPTED possession of the strip of land for more than fifity (50) years, the
Supreme Courts ruling in the case of Ronquillo, et al. v. Roco, et al. (103 Phil 84) is
not applicable. This is because in said case the easement in question was a strip of
dirt road whose possession by the dominant estate occurs only everytime said dirt
road was being used by the dominant estate. Such fact would necessarily show that
the easements possession by the dominant estate was never continuous. In the
instant case however, there is clear continuity of defendants possession of the strip of
land it had been using as railway tracks. Because the railway tracks which defendant
had constructed on the questioned strip of land had been CONTINUOUSLY
occupying said easement. Thus, defendant Bomedcos apparent and continuous
possession of said strip of land in good faith for more than ten (10) years had made
defendant owner of said strip of land traversed by its railway tracks. Because the
railway tracks which defendant had constructed on the questioned strip of land had
been continuously occupying said easement [sic].Thus, defendant Bomedcos
apparent and continuous possession of said strip of land in good faith for more than
ten (10) years had made defendant owner of said strip of land traversed by its railway
tracks.
Respondent heirs elevated the case to the Court of Appeals which found that
Bomedco did not acquire ownership over the lot. It consequently reversed the trial
court. In its decision dated November 17, 1995, the appellate court held that
Bomedco only acquired an easement of right of way by unopposed and continuous
use of the land, but not ownership, under Article 620 of the Civil Code.
The appellate court further ruled that Bomedcos claim of a prior sale to it by
Feliciana Santillan was untrue. Its possession being in bad faith, the applicable
prescriptive period in order to acquire ownership over the land was 30 years under
Article 1137 of the Civil Code. Adverse possession of the property started only in
1965 when Bomedco registered its claim in the cadastral survey of Medellin. Since
only 24 years from 1965 had elapsed when the heirs filed a complaint against
Bomedco in 1989, Bomedcos possession of the land had not yet ripened into
ownership.
And since there was no showing that respondent heirs or their predecessor-in-
interest was ever paid compensation for the use of the land, the appellate court
awarded compensation to them, to be computed from the time of discovery of the
adverse acts of Bomedco.
Its motion for reconsideration having been denied by the appellate court in its
resolution dated March 22, 1996, Bomedco now interposes before us this present
appeal by certiorari under Rule 45, assigning the following errors:
I declared to be a mere easement of right of way.
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT
REVERSED AND SET ASIDE THE TRIAL COURTS DECISION DISMISSING
PRIVATE RESPONDENTS COMPLAINT.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT
ORDERED THE PETITIONER TO PAY THE PRIVATE RESPONDENT THE
REASONABLE VALUE OF LOT 954 AND THE AMOUNT OF TEN THOUSAND
(P10,000.00) PESOS AS REASONABLE ATTORNEYS FEES.
Petitioner Bomedco reiterates its claim of ownership of the
land through extraordinary acquisitive prescription under Article 1137 of the Civil
Code and laches to defeat the claim for compensation or recovery of possession by
respondent heirs. It also submits a third ground originally tendered by the trial court
― acquisition of the easement of right of way by prescriptionunder Article 620 of the
Civil Code.
Extraordinary Acquisitive Prescription
Under Art. 1137 of the Civil Code
Petitioners claim of ownership through extraordinary acquisitive prescription
under Article 1137 of the Civil Code cannot be sustained.
There is no dispute that the controversial strip of land has been in the
continuous possession of petitioner since 1929. But possession, to constitute the
foundation of a prescriptive right, must be possession under a claim of title, that is, it
must be adverse.[21] Unless coupled with the element of hostility towards the true
owner, possession, however long, will not confer title by prescription. [22]
After a careful review of the records, we are inclined to believe the version of
respondent heirs that an easement of right of way was actually granted to petitioner
for which reason the latter was able to occupy Cadastral Lot No. 954. We cannot
disregard the fact that, for the years 1930, 1937, 1949, 1962 and 1963, petitioner
unequivocally declared the property to be a central railroad right of way or sugar
central railroad right of way in its real estate tax receipts when it could have declared
it to be industrial land as it did for the years 1975 and 1985.[23]Instead of
indicating ownership of the lot, these receipts showed that all petitioner had
was possession by virtue of the right of way granted to it. Were it not so and petitioner
really owned the land, petitioner would not have consistently used the phrases central
railroad right of way and sugar central railroad right of way in its tax declarations until
1963. Certainly an owner would have found no need for these phrases. A person
cannot have an easement on his own land, since all the uses of an easement are fully
comprehended in his general right of ownership.[24]
While it is true that, together with a persons actual and adverse possession of
the land, tax declarations constitute strong evidence of ownership of the land
occupied by him,[25] this legal precept does not apply in cases where the property is
An easement or servitude is a real right, constituted on the corporeal immovable
property of another, by virtue of which the owner has to refrain from doing, or must
allow someone to do, something on his property, for the benefit of another thing or
person. It exists only when the servient and dominant estates belong to two different
owners. It gives the holder of the easement an incorporeal interest on the land but
grants no title thereto. Therefore, an acknowledgment of the easement is an
admission that the property belongs to another.[26]
 Having held the property by virtue of an easement, petitioner cannot now assert
that its occupancy since 1929 was in the concept of an owner. Neither can it declare
that the 30-year period of extraordinary acquisitive prescription started from that year.
Petitioner, however, maintains that even if a servitude was merely imposed on
the property in its favor, its possession immediately became adverse to the owner in
the late 1950s when the grant was alleged by respondent heirs to have expired. It
stresses that, counting from the late 1950s (1959 as found by the trial court), the 30-
year extraordinary acquisitive prescription had already set in by the time respondent
heirs made a claim against it in their letters dated March 1 and April 6, 1989.
We do not think so. The mere expiration of the period of easement in 1959 did
not convert petitioners possession into an adverse one. Mere material possession of
land is not adverse possession as against the owner and is insufficient to vest title,
unless such possession is accompanied by the intent to possess as an
owner.[27] There should be a hostile use of such a nature and exercised under such
circumstances as to manifest and give notice that the possession is under a claim of
right.
In the absence of an express grant by the owner, or conduct by petitioner sugar
mill from which an adverse claim can be implied, its possession of the lot can only be
presumed to have continued in the same character as when it was acquired (that is, it
possessed the land only by virtue of the original grant of the easement of right of
way),[28] or was by mere license or tolerance of the owners (respondent heirs). [29] It is
a fundamental principle of law in this jurisdiction that acts of possessory character
executed by virtue of license or tolerance of the owner, no matter how long, do not
start the running of the period of prescription.[30]
After the grant of easement expired in 1959, petitioner never performed any act
incompatible with the ownership of respondent heirs over Cadastral Lot No. 954. On
the contrary, until 1963, petitioner continued to declare the sugar central railroad right
of way in its realty tax receipts, thereby doubtlessly conceding the ownership of
respondent heirs. Respondents themselves were emphatic that they simply tolerated
petitioners continued use of Cadastral Lot No. 954 so as not to jeopardize the
employment of one of their co-heirs in the sugar mill of petitioner.[31]
The only time petitioner assumed a legal position adverse to respondents
was when it filed a claim over the property in 1965 during the cadastral survey of
Medellin. Since then (1965) and until the filing of the complaint for the recovery of the
subject land before the RTC of Cebu in 1989, only 24 years had lapsed. Since the
required 30-year extraordinary prescriptive period had not yet been complied with in
1989, petitioner never acquired ownership of the subject land.
Laches
Neither can petitioner find refuge in the principle of laches. It is not just the lapse
of time or delay that constitutes laches. The essence of laches is the failure or
neglect, for an unreasonable and unexplained length of time, to do that which,
through due diligence, could or should have been done earlier, thus giving rise to a
presumption that the party entitled to assert it had either abandoned or declined to
assert it.[32]
Its essential elements are: (a) conduct on the part of the defendant, or of one
under whom he claims, giving rise to the situation complained of; (b) delay in
asserting complainants rights after he had knowledge of defendants acts and after he
has had the opportunity to sue; (c) lack of knowledge or notice by defendant that the
complainant will assert the right on which he bases his suit; and (d) injury or prejudice
to the defendant in the event the relief is accorded to the complainant. [33]
The second element (which in turn has three aspects) is lacking in the case at
bar. These aspects are: (a) knowledge of defendant's action, (b) opportunity to sue
defendant after obtaining such knowledge and (c) delay in the filing of such suit. [34]
Records show that respondent heirs only learned about petitioners claim on
their property when they discovered the inscription for the cadastral survey in the
records of the Bureau of Lands in 1989. Respondents lost no time in demanding an
explanation for said claim in their letters to the petitioner dated March 1, 1989 and
April 6, 1989. When petitioner ignored them, they instituted their complaint before the
Regional Trial Court of Cebu City on June 8, 1989.
Petitioners reliance on Caro vs. Court of Appeals [35] and Vda. de Alberto vs.
Court of Appeals [36] is misplaced. There, laches was applied to bar petitioners from
questioning the ownership of the disputed properties precisely because they had
knowledge of the adverse claims on their properties yet tarried for an extraordinary
period of time before taking steps to protect their rights.
Further, there is no absolute rule on what constitutes laches. It is a rule of equity
and applied not to penalize neglect or sleeping on ones rights but rather to avoid
recognizing a right when to do so would result in a clearly unfair situation. The
question of laches is addressed to the sound discretion of the court and each case
must be decided according to its particular circumstances.[37] It is the better rule that
courts, under the principle of equity, should not be guided or bound strictly by the
statute of limitations or the doctrine of laches if wrong or injustice will result.
It is clear that petitioner never acquired ownership over Cadastral Lot No. 954
whether by extraordinary acquisitive prescription or by laches.
Acquisition of Easement of Right of Way By
Prescription Under Art. 620 of the Civil Code
Petitioner contends that, even if it failed to acquire ownership of the subject
land, it nevertheless became legally entitled to the easement of right of way over said
land by virtue of prescription under Article 620 of the Civil Code:
Continuous and apparent easements are acquired either by virtue of a title or by
prescription of ten years.
The trial court and the Court of Appeals both upheld this view for the reason that
the railroad right of way was, according to them, continuous and apparent in nature.
The more or less permanent railroad tracks were visually apparent and
they continuously occupied the subject strip of land from 1959 (the year the easement
granted by Feliciana Santillan to petitioner expired). Thus, with the lapse of the 10-
year prescriptive period in 1969, petitioner supposedly acquired the easement of right
of way over the subject land.
 Following the logic of the courts a quo, if a road for the use of vehicles or the
passage of persons is permanently cemented or asphalted, then the right of way over
it becomes continuous in nature. The reasoning is erroneous.
Under civil law and its jurisprudence, easements are either continuous or
discontinuous according to the manner they are exercised, not according to the
presence of apparent signs or physical indications of the existence of such
easements. Thus, an easement is continuous if its use is, or may be, incessant
without the intervention of any act of man, like the easement of drainage; [38] and it is
discontinuous if it is used at intervals and depends on the act of man, like the
easement of right of way.[39]
The easement of right of way is considered discontinuous because it is
exercised only if a person passes or sets foot on somebody elses land. Like a road
for the passage of vehicles or persons, an easement of right of way of railroad tracks
is discontinuous because the right is exercised only if and when a train operated by a
person passes over another's property. In other words, the very exercise of the
servitude depends upon the act or intervention of man which is the very essence of
discontinuous easements.
The presence of more or less permanent railroad tracks does not in any way
convert the nature of an easement of right of way to one that is continuous. It is not
the presence of apparent signs or physical indications showing the existence of an
easement, but rather the manner of exercise thereof, that categorizes such easement
into continuous or discontinuous.The presence of physical or visual signs only
classifies an easement into apparent or non-apparent. Thus, a road (which reveals a
right of way) and a window (which evidences a right to light and view) are apparent
easements, while an easement of not building beyond a certain height is non-
apparent.[40]
In Cuba, it has been held that the existence of a permanent railway does not
make the right of way a continuous one; it is only apparent. Therefore, it cannot be
acquired by prescription.[41] In Louisiana, it has also been held that a right of passage
over another's land cannot be claimed by prescription because this easement is
discontinuous and can be established only by title.[42]
In this case, the presence of railroad tracks for the passage of petitioners trains
denotes the existence of an apparent but discontinuous easement of right of way.
And under Article 622 of the Civil Code, discontinuous easements, whether apparent
or not, may be acquired only by title. Unfortunately, petitioner Bomedco never
acquired any title over the use of the railroad right of way whether by law, donation,
testamentary succession or contract. Its use of the right of way, however long, never
resulted in its acquisition of the easement because, under Article 622, the
discontinuous easement of a railroad right of way can only be acquired by title and
not by prescription.
To be sure, beginning 1959 when the original 30-year grant of right of way given
to petitioner Bomedco expired, its occupation and use of Cadastral Lot No. 954 came
to be by mere tolerance of the respondent heirs. Thus, upon demand by said heirs in
1989 for the return of the subject land and the removal of the railroad tracks, or, in the
alternative, payment of compensation for the use thereof, petitioner Bomedco which
had no title to the land should have returned the possession thereof or should have
begun paying compensation for its use.
But when is a party deemed to acquire title over the use of such land (that is,
title over the easement of right of way)? In at least two cases, we held that if: (a) it
had subsequently entered into a contractual right of way with the heirs for the
continued use of the land under the principles of voluntary easements or (b) it had
filed a case against the heirs for conferment on it of a legal easement of right of way
under Article 629 of the Civil Code, then title over the use of the land is deemed to
exist. The conferment of a legal easement of right of way under Article 629 is subject
to proof of the following:
(1) it is surrounded by other immovables and has no adequate outlet to a
public highway;
(2) payment of proper indemnity;
(3) the isolation is not the result of its own acts; and
(4) the right of way claimed is at the point least prejudicial to the servient
estate, and, insofar as consistent with this rule, the distance from
the dominant estate to the highway is the shortest.[43]
None of the above options to acquire title over the railroad right of way was ever
pursued by petitioner despite the fact that simple resourcefulness demanded such
initiative, considering the importance of the railway tracks to its business. No doubt, it
is unlawfully occupying and using the subject strip of land as a railroad right of way
without valid title yet it refuses to vacate it even after demand of the
heirs. Furthermore, it tenaciously insists on ownership thereof despite a clear showing
to the contrary.
We thus uphold the grant by the Court of Appeals of attorneys fees in the
amount of P10,000 considering the evident bad faith of petitioner in refusing
respondents just and lawful claims, compelling the latter to litigate. [44]
WHEREFORE, the petition is DENIED. The appealed decision dated November
17, 1995 and resolution dated March 2, 1996 of the Court of Appeals are AFFIRMED
with MODIFICATION. Petitioner Bogo-Medellin Milling Company, Inc. is hereby
ordered to vacate the subject strip of land denominated as Cadastral Lot No. 954,
remove its railway tracks thereon and return its possession to the private
respondents, the heirs of Magdaleno Valdez, Sr. It is also hereby ordered to pay
private respondents attorney's fees in the amount of P10,000.
SO ORDERED.
Puno, (Chairman), Panganiban, and Carpio-Morales, JJ., concur.
Sandoval-Gutierrez, J., on official leave.