EMETERIA LIWAG. vs.
vs. HAPPY GLEN LOOP HOMEOWNERS After the parties submitted their respective position papers, Housing and
ASSOCIATION, INC.
FACTS:
The controversy stems from a water facility in Happy Glen Loop Subdivision
(the Subdivision), which is situated in Deparo, Caloocan City. Liwag vs.
Happy Glen Loop Homeowners Association, Inc.
Sometime, F.G.R. Sales, the original developer of Happy Glen Loop,
obtained a loan from Ernesto Marcelo (Marcelo), the owner of T.P. Marcelo
Realty Corporation. To settle its debt after failing to pay its obligation, F.G.R.
Sales assigned to Marcelo all its rights over several parcels of land in the
Subdivision, as well as receivables from the lots already sold. As the
successor-in-interest of the original developer, Marcelo represented to
subdivision lot buyers, the National Housing Authority (NHA) and the Human
Settlement Regulatory Commission (HSRC) that a water facility was
available in the Subdivision.
For almost 30 years, the residents of the Subdivision relied on this facility
as their only source of water. This fact was acknowledged by Marcelo and
Hermogenes Liwag (Hermogenes), petitioner’s late husband who was then
the president of respondent Happy Glen.
Sometime in September 1995, Marcelo sold Lot 11, Block No. 5. As a result,
Transfer Certificate of Title (TCT) No. C-350099 was issued to him. When
Hermogenes died in 2003, petitioner Emeteria P. Liwag subsequently wrote
a letter to respondent Association, demanding the removal of the overhead
water tank from the subject parcel of land.
Refusing to comply with petitioner’s demand, respondent Association filed
before the HLURB an action for specific performance; confirmation,
maintenance and donation of water facilities; annulment of sale; and
cancellation of TCT No. 350099 against T.P. Marcelo Realty Corporation
(the owner and developer of the Subdivision), petitioner Emeteria, and the
other surviving heirs of Hermogenes.
Land Use Arbiter Joselito Melchor (Arbiter Melchor) ruled in favor of the
Association. He invalidated the transfer of the parcel of land in favor of
Hermogenes. Hermogenes submitted an appeal to HLURB and the OP.
The appellate court agreed with the OP that an easement for water facility
existed on the subject parcel of land and formed part of the open space
required to be reserved by the subdivision developer under P.D. 957.
However, it ruled that Arbiter Melchor should not have recommended the
filing of a criminal action against petitioner, as she was not involved in the
development of the Subdivision or the sale of its lots to buyers. The CA
likewise deleted the award of attorney’s fees and damages in favor of
respondent.
Aggrieved, petitioner filed the instant Petition before this Court.
ISSUE: W/N an easement for water facility exists on the said parcel of land.
RULING:
Yes. Easements or servitudes are encumbrances imposed upon an
immovable for the benefit of another immovable belonging to a different
owner, for the benefit of a community, or for the benefit of one or more
persons to whom the encumbered estate does not belong.
The law provides that easements may be continuous or discontinuous and
apparent or non-apparent. The pertinent provisions of the Civil Code are
quoted below:
“Art. 615. Easements may be continuous or discontinuous, apparent or
non-apparent.
Continuous easements are those the use of which is or may be incessant,
without the intervention of any act of man.
Discontinuous easements are those which are used at intervals and depend
upon the acts of man.
Apparent easements are those which are made known and are continually
kept in view by external signs that reveal the use and enjoyment of the
same.
Non-apparent easements are those which show no external indication of
their existence.”
In this case, the water facility is an encumbrance on Lot 11, Block 5 of the
Subdivision for the benefit of the community. It is continuous and apparent,
because it is used incessantly without human intervention, and because it
is continually kept in view by the overhead water tank, which reveals its use
to the public.
Contrary to petitioner’s contention that the existence of the water tank on
Lot 11, Block 5 is merely tolerated, we find that the easement of water facility
has been voluntarily established either by Marcelo, the Subdivision owner
and developer; or by F.G.R. Sales, his predecessor-in-interest and the
original developer of the Subdivision. For more than 30 years, the facility
was continuously used as the residents’ sole source of water.31 The Civil
Code provides that continuous and apparent easements are acquired either
by virtue of a title or by prescription of 10 years.32 It is therefore clear that
an easement of water facility has already been acquired through
prescription.
Lot 11, Block 5 of Happy Glen Loop Subdivision forms part of its open space
The term “open space” is defined in P.D. 1216 as “an area reserved
exclusively for parks, playgrounds, recreational uses, schools, roads, places
of worship, hospitals, health centers, barangay centers and other similar
facilities and amenities.”
The decree makes no specific mention of areas reserved for water facilities.
Therefore, we resort to statutory construction to determine whether these
areas fall under “other similar facilities and amenities.”
The basic statutory construction principle of ejusdem generis states that
where a general word or phrase follows an enumeration of particular and
specific words of the same class, the general word or phrase is to be
construed to include—or to be restricted to—things akin to or resembling, or
of the same kind or class as, those specifically mentioned.
The subject parcel of land is beyond the commerce of man and its sale is
prohibited under the law
The law expressly provides that open spaces in subdivisions are reserved
for public use and are beyond the commerce of man.37 As such, these open
spaces are not susceptible of private ownership and appropriation. We
therefore rule that the sale of the subject parcel of land by the subdivision
owner or developer to petitioner’s late husband was contrary to law. Hence,
we find no reversible error in the appellate court’s Decision upholding the
HLURB Arbiter’s annulment of the Deed of Sale.
Civil Law; Property; Easements; Easements or servitudes are
encumbrances imposed upon an immovable for the benefit of another
immovable belonging to a different owner, for the benefit of a community, or
for the benefit of one or more persons to whom the encumbered estate does
not belong.—Easements or servitudes are encumbrances imposed upon an
immovable for the benefit of another immovable belonging to a different
owner, for the benefit of a community, or for the benefit of one or more
persons to whom the encumbered estate does not belong. The law provides
that easements may be continuous or discontinuous and apparent or non-
apparent.
Civil Law; Property; Easements; The law expressly provides that open
spaces in subdivisions are reserved for public use and are beyond the
commerce of man.—The law expressly provides that open spaces in
subdivisions are reserved for public use and are beyond the commerce of
man. As such, these open spaces are not susceptible of private ownership
and appropriation. We therefore rule that the sale of the subject parcel of
land by the subdivision owner or developer to petitioner’s late husband was
contrary to law. Hence, we find no reversible error in the appellate court’s
Decision upholding the HLURB Arbiter’s annulment of the Deed of Sale.
SPS VALDEZ vs. SPS TABISULA
FACTS:
Spouses Victor and Jocelyn Valdez purchased from spouses Francisco
Tabisula and Caridad Tabisula a parcel of land. Contained in the deed of
sale is a stipulation that the Sps. Valdez ‘shall be provided a 2 1/2 meters
[sic] wide road right-of-way on the western side of their lot but which is not
included in this sale’. Sps. Tabisula then built a concrete wall on the subject
property. Feeling betrayed by said act of Sps. Tabisula based on the deed
of sale’s intended road right of way, Sps. Valdez reported the matter the
brgy. Lupon but it was in vain which constrained Sps. Valdez to file a case
for specific performance against the Tabisulas with the RTC. The Sps.
Tabisula contended that :1: Sps. Valdez and family also are the owners of
two properties adjoining the subject property, which adjoining properties
have access to two public roads ; and 2: they could not have agreed to
providing petitioners an easement “on the western side of their lot” as there
exists a two-storey concrete house on their lot where the supposed
easement is to be located, which was erected long before the subject
property was sold to the Valdez’s; thus , the easement should be taken from
the western portion of the subject property and not from theirs.
RTC dismissed the Sps. Valdez’s complain. On appeal, Sps. Valdez were
again turned down.
ISSUE: WON the Sps. Valdez are entitled to the right of way as provided for
in the deed of sale.
RULING:
The Sps. Valdez are not entitled to the right of way.
An easement or servitude is “a real right constituted on another’s property,
corporeal and immovable, by virtue of which the owner of the same has to
abstain from doing or to allow somebody else to do something on his
property for the benefit of another thing or person.” The statutory basis of
this right is Article 613 of the Civil Code which reads:
Art. 613. An easement or servitude is an encumbrance imposed upon an
immovable for the benefit of another immovable belonging to a different
owner.
The immovable in favor of which the easement is established is called the
dominant estate; that which is subject thereto, the servient estate. There are
two kinds of easements according to source – by law or by the will of the
owners. So Article 619 of the Civil Code provides:
Art. 619. Easements are established either by law or by the will of the
owners. The former are called legal and the latter voluntary easements.
From the allegations in Sps Valdez’ complaint, it is clear that what they seek
to enforce is an alleged grant in the deed by respondents of an easement
reading: “they shall be provided a 2 ½ meters wide road right-of-way on the
western side of their lot but which is not included in this sale.” Article 1358
of the Civil Code provides that any transaction involving the sale or
disposition of real property must be in writing. The stipulation harped upon
by petitioners that they “shall be provided a 2 ½ meters wide road right-of-
way on the western side of their lot but which is not included in this sale” is
not a disposition of real property. The proviso that the intended grant of right
of way is “not included in this sale” could only mean that the parties would
have to enter into a separate and distinct agreement for the purpose. The
use of the word “shall,” which is imperative or mandatory in its ordinary
signification, should be construed as merely permissive where, as in the
case at bar, no public benefit or private right requires it to be given an
imperative meaning. Besides, a document stipulating a voluntary easement
must be recorded in the Registry of Property in order not to prejudice third
parties.
So Articles 708 and 709 of the Civil Code call for, viz: Art. 708. The Registry
of Property has for its object the inscription or annotation of acts and
contracts relating to the ownership and other rights over immovable
property.
Art. 709. The titles of ownership, or of other rights over immovable property,
which are not duly inscribed or annotated in the Registry of Property shall
not prejudice third persons.
Sps Valdez are neither entitled to a legal or compulsory easement of right
of way.
For to be entitled to such kind of easement, the preconditions under Articles
649 and 650 of the Civil Code must be established, viz:
Art. 649. The owner, or any person who by virtue of a real right may cultivate
or use any immovable, which is surrounded by other immovables pertaining
to other persons, and without adequate outlet to a public highway, is entitled
to demand a right of way through the neighboring estates, after payment of
the proper indemnity.
This easement is not compulsory if the isolation of the immovable is due to
the proprietor’s own acts. (Underscoring supplied)
Art. 650. The easement of right of way shall be established at the point least
prejudicial to the servient estate, and, insofar as consistent with this rule,
where the distance from the dominant estate to a public highway may be
the shortest. (Underscoring supplied)
Thus, to be conferred a legal easement of right of way under Article
649, the following requisites must be complied with: (1) the property is
surrounded by other immovables and has no adequate outlet to a
public highway; (2) proper indemnity must be paid; (3) the isolation is
not the result of the owner of the dominant estate’s own acts; (4) the
right of way claimed is at the point least prejudicial to the servient
estate; and (5) to the extent consistent with the foregoing rule, the
distance from the dominant estate to a public highway may be the
shortest.
The onus of proving the existence of these prerequisites lies on the owner
of the dominant estate, herein Sps. Valdez. Since the Sps. Valdez then have
more than adequate passage to two public roads, they have no right to
demand the grant by the Sps. Tabisula of an easement on the “western side
of the Tabisula’s lot.”; it appearing that the Sps. Valdez and their family are
also the owners of two properties adjoining the subject property which have
access to two public roads or highways.
Civil Law; Property; Servitudes; Easements; An easement or servitude is “a
real right constituted on another’s property, corporeal and immovable, by
virtue of which the owner of the same has to abstain from doing or to allow
somebody else to do something on his property for the benefit of another
thing or person”; Two kinds of easements according to source—by law or
by the will of the owners.—An easement or servitude is “a real right
constituted on another’s property, corporeal and immovable, by virtue of
which the owner of the same has to abstain from doing or to allow somebody
else to do something on his property for the benefit of another thing or
person.” The statutory basis of this right is Article 613 of the Civil Code which
reads: Art. 613. An easement or servitude is an encumbrance imposed upon
an immovable for the benefit of another immovable belonging to a different
owner. The immovable in favor of which the easement is established is
called the dominant estate; that which is subject thereto, the servient estate.
There are two kinds of easements according to source—by law or by the
will of the owners.
Same; Same; Same; Same; The proviso that the intended grant of right of
way is “not included in this sale” could only mean that the parties would have
to enter into a separate and distinct agreement for the purpose.—From the
allegations in petitioners’ complaint, it is clear that what they seek to enforce
is an alleged grant in the deed by respondents of an easement reading:
“they shall be provided a 2 1/2 meters wide road right-of-way on the western
side of their lot but which is not included in this sale.” Article 1358 of the Civil
Code provides that any transaction involving the sale or disposition of real
property must be in writing. The stipulation harped upon by petitioners that
they “shall be provided a 2 1/2 meters wide road right-of-way on the western
side of their lot but which is not included in this sale” is not a disposition of
real property. The proviso that the intended grant of right of way is “not
included in this sale” could only mean that the parties would have to enter
into a separate and distinct agreement for the purpose. The use of the word
“shall,” which is imperative or mandatory in its ordinary signification, should
be construed as merely permissive where, as in the case at bar, no public
benefit or private right requires it to be given an imperative meaning.
Same; Easements; A document stipulating a voluntary easement must be
recorded in the Registry of Property in order not to prejudice third parties.—
A document stipulating a voluntary easement must be recorded in the
Registry of Property in order not to prejudice third parties. So Articles 708
and 709 of the Civil Code call for.
Same; Same; Requisites to be Conferred a Legal Easement of Right of Way
under Article 649; The onus of proving the existence of these prerequisites
lies on the owner of the dominant estate.—To be conferred a legal
easement of right of way under Article 649, the following requisites must be
complied with: (1) the property is surrounded by other immovables and has
no adequate outlet to a public highway; (2) proper indemnity must be paid;
(3) the isolation is not the result of the owner of the dominant estate’s own
acts; (4) the right of way claimed is at the point least prejudicial to the
servient estate; and (5) to the extent consistent with the foregoing rule, the
distance from the dominant estate to a public highway may be the shortest.
The onus of proving the existence of these prerequisites lies on the owner
of the dominant estate, herein petitioners.
BICOL AGRO-INDUSTRIAL PRODUCERS COOPERATIVE, INC.
(BAPCI) vs. OBIAS
FACTS:
The Bicol Sugar Development Corporation (BISUDECO) was established at
Himaao, Pili, Camarines Sur. In the same year, BISUDECO constructed a
road ("the disputed road") – measuring approximately 7 meters wide and
2.9 kilometers long. The disputed road was used by BISUDECO in hauling
and transporting sugarcane to and from its mill site (Pensumil) and has thus
become indispensable to its sugar milling operations. Respondents
unjustifiably barricaded the disputed road by placing bamboos, woods,
placards and stones across it, preventing petitioner’s and the other sugar
planter’s vehicles from passing through the disputed road, thereby causing
serious damage and prejudice to petitioner. Petitioner alleged that
BISUDECO constructed the disputed road pursuant to an agreement with
the owners of the ricefields the road traversed.
The agreement provides that BISUDECO shall employ the children and
relatives of the landowners in exchange for the construction of the road on
their properties. Petitioner contends that through prolonged and continuous
use of the disputed road, BISUDECO acquired a right of way over the
properties of the landowners, which right of way in turn was acquired by it
when it bought BISUDECO’s assets.
Petitioner prayed that respondents be permanently ordered to restrain from
barricading the disputed road and from obstructing its free passage.
Respondents denied having entered into an agreement with BISUDECO
regarding the construction and the use of the disputed road. They alleged
that BISUDECO, surreptitiously and without their knowledge and consent,
constructed the disputed road on their properties and has since then
intermittently and discontinuously used the disputed road for hauling
sugarcane despite their repeated protests.
Respondents claimed they tolerated BISUDECO in the construction and the
use of the road since BISUDECO was a government-owned and controlled
corporation, and the entire country was then under Martial Law.
Respondents likewise denied that the road has become a public road, since
no public funds were used for its construction and maintenance. The RTC
ruled that petitioner failed to present any concrete evidence to prove that
there was an agreement between BISUDECO and respondents for the
construction of the disputed road. Moreover, it held that petitioner did not
acquire the same by prescription.
The CA affirmed the finding of the RTC that there was no conclusive proof
to sufficiently establish the existence of an agreement between BISUDECO
and respondents regarding the construction of the disputed road. Moreover,
the CA also declared that an easement of right of way is discontinuous and
as such cannot be acquired by prescription.
ISSUES:
1. Whether or not there is an existing agreement between BISUDECO and
Respondents
2. Whether or not the principles of prescription, laches and estoppels is
applicable in this case.
RULING:
1. No. In order for petitioner to acquire the disputed road as an easement of
right-of-way, it was incumbent upon petitioner to show its right by title or by
an agreement with the owners of the lands that said road traversed.
Easement or servitude is an encumbrance imposed upon an immovable for
the benefit of another immovable belonging to a different owner. By its
creation, easement is established either by law (in which case it is a legal
easement) or by will of the parties (a voluntary easement). In terms of use,
easement may either be continuous or discontinuous. The easement of right
of way – the privilege of persons or a particular class of persons to pass
over another’s land, usually through one particular path or linen – is
characterized as a discontinuous easement because its use is in intervals
and depends on the act of man. Because of this character, an easement of
a right of way may only be acquired by virtue of a title.
Article 622 of the New Civil Code is the applicable law in the case at bar,
viz:
Art. 622. Continuous non-apparent easements, and discontinuous ones,
whether apparent or not, may be acquired only by virtue of a title.
It is clear that the plaintiff failed to present any concrete evidence to prove
that there was such an agreement between BISUDECO and defendants.
The lower court correctly disbelieved the plaintiffs-appellants’ contention
that an agreement existed because there is simply no direct evidence to
support this allegation. BAPCI submitted purely circumstantial evidence that
are not sufficiently adequate as basis for the inference than an agreement
existed. By themselves, the circumstances the plaintiffs-appellants cited –
i.e., the employment of sixteen (16) relatives of the defendants-appellants;
the defendants-appellants’ unjustified silence; the fact that the existence of
the agreement is known to everyone, etc. – are events susceptible of
diverse interpretations and do not necessarily lead to BAPCI’s desired
conclusion.
2. No. , "It is already well-established that a right of way is discontinuous
and, as such, cannot be acquired by prescription." Continuous and apparent
easements are acquired either by virtue of a title or by prescription of ten
years. 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, easement is continuous if its use
is, or may be, incessant without the intervention of any act of man, like the
easement of drainage; and it is discontinuous if it is used at intervals and
depends on the act of man, like the easement of right of way.
The easement of right of way is considered discontinuous because it is
exercised only if a person passes or sets foot on somebody else’s land. Like
a road for the passage of vehicles or persons, an easement of right of way
of railroad tracks is discontinuous because the right is exercised only if and
when a train operated by a person passes over another's property. In other
words, the very exercise of the servitude depends upon the act or
intervention of man which is the very essence of discontinuous easements.
The presence of physical or visual signs only classifies an easement into
apparent or nonapparent. 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.
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.
It was 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. In this case, the presence of railroad tracks for the
passage of petitioner’s trains denotes the existence of an apparent but
discontinuous easement of right of way. And under Article 622 of the Civil
Code, discontinuous easements, whether apparent or not, may be acquired
only by title. Unfortunately, petitioner Bomedco never acquired any title over
the use of the railroad right of way whether by law, donation, testamentary
succession or contract.
Its use of the right of way, however long, never resulted in its acquisition of
the easement because, under Article 622, the discontinuous easement of a
railroad right of way can only be acquired by title and not by prescription.
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.
Hence, even if the road in dispute has been improved and maintained over
a number of years, it will not change its discontinuous nature but simply
make the same apparent. To stress, Article 622 of the New Civil Code states
that discontinuous easements, whether apparent or not, may be acquired
only by virtue of a title. The question of laches is addressed to the sound
discretion of the court and each case must be decided according to its
particular circumstances.
Art. 622. Continuous non-apparent easements, and discontinuous ones,
whether apparent or not, may be acquired only by virtue of a title. The
eminent jurist, former Senator Arturo M. Tolentino, opines that this provision
seeks to prevent the imposition of a burden on a tenement based purely on
the generosity, tolerance and spirit of neighborliness of the owners thereof.
We applied the cited provision to the case in ruling that no easement of right
of way was acquired; based on the evidence presented, the plaintiff-
appellant failed to satisfactorily prove the existence of an agreement
evidencing any right or title to use the disputed road. We additionally
rejected the plaintiff-appellant’s position that it had acquired the easement
of right of way through acquisitive prescription, as settled jurisprudence
states that an easement of right of way cannot be acquired by prescription.
We find that the positive mandate of Article 622 of the Civil Code – the
statutory provision requiring title as basis for the acquisition of an easement
of a right of way – precludes the application of the equitable principle of
laches. This Court agrees with the CA. The fact that the law is categorical
that discontinuous easements cannot be acquired by prescription militates
against petitioner’s claim of laches. To stress, discontinuous easements can
only be acquired by title. On the other hand, as to the issue of estoppel, this
Court likewise agrees with the finding of the CA that petitioner did not
present any evidence that would show an admission, representation or
conduct by respondents that will give rise to estoppel.
SPOUSES WILLIAMS vs. ZERDA
Doctrine: The conferment of the legal easement of right of way is governed
by Articles 649 and 650 of the Civil Code. The dominant estate is
surrounded by other immovables and has no adequate outlet to a public
highway (Art. 649, par. 1). There is payment of proper indemnity (Art. 649,
par. 1). The isolation is not due to the acts of the proprietor of the dominant
estate (Art. 649, last par.). The right of way claimed is at the point least
prejudicial to the servient estate; and insofar as consistent with this rule,
where the distance from the dominant estate to a public highway may be
the shortest (Art. 650).
FACTS:
Zerda filed a complaint against Spouses Williams for easement of
right of way. Immediately behind Zerda‟s land (the dominant estate) was a
swampy mangrove area owned by the Republic of the Philippines. On both
sides were lands registered under the name of Woodridge Properties, Inc.
in the name of one Luis Dilag. In front of Zerda‟s property was the land
owned by Spouses Williams (petitioners), where the national highway ran
along. Zerda alleged that his lot was without adequate outlet to a public
highway except by passing through Williams‟ property. However, Spouses
Williams countered that the complaint should be dismissed. They claimed
that they were in negotiation with Agripina Sierra (Sierra), the former owner
of the dominant estate, for its sale to them but the sale did not materialize
due to the intervention of Zerda. Further, they contended that they have
introduced visible improvements in their property. RTC held that the
isolation of Zerda‟s property was due to his own acts because he was aware
that Spouses Williams had already started introducing improvements on
their own property. Also, it noted that the right of way requested by Zerda
was not the shortest distance from the dominant estate to the public 4. The right of way claimed is at the point least prejudicial to the servient
highway. estate; and insofar as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest (Art. 650).
The RTC dismissed the complaint. On appeal, CA reversed the RTC ruling.
The RTC observed that the right of way, which the respondent was seeking
ISSUE: was alongside a precipice. Spouses Williams insisted that they intended to
Whether or not respondent Zerda is entitled to an easement of right of way? build structures on the portion claimed by the respondent, but at a safe
distance from the precipice, not immediately beside it. In addition, the
RULING: 705.20 sq. m long pathway would only affect a small portion of the 12,200
sq. m. property of Spouses Williams, and for which the respondent
Yes. The conferment of the legal easement of right of way is
expressed willingness to pay. The Court finds that the right of way sought
governed by Articles 649 and 650 of the Civil Code. All the requisites of an
by the respondent is at the point least prejudicial to the servient estate and
easement of right of way are present in this case.
it is the shortest distance to the national highway.
1. The dominant estate is surrounded by other immovables and has no
Even assuming that the right of way is not the shortest distance from the
adequate outlet to a public highway (Art. 649, par. 1) There is no dispute
dominant estate to the public highway, it is well-settled that "[t]he criterion
that Zerda‟s property was surrounded by other immovables owned by
of least prejudice to the servient estate must prevail over the criterion of
different individuals, including Spouses Williams.
shortest distance although this is a matter of judicial appreciation. xxx In
2. There is payment of proper indemnity (Art. 649, par. 1) Zerda stated in other words, where the easement may be established on any of several
his letter to the Williams that he was willing to pay a reasonable value or to tenements surrounding the dominant estate, the one where the way is
swap a portion of his property in exchange of providing him with a right of shortest and will cause the least damage should be chosen. If having these
way. two (2) circumstances do not concur in a single tenement, the way which
will cause the least damage should be used, even if it will not be the
3. The isolation is not due to the acts of the proprietor of the dominant estate shortest."
(Art. 649, last par.) The isolation of the dominant estate was not due to the
respondent Zerda’s own acts. The property he purchased was already
surrounded by other immovables leaving him no adequate ingress or egress
to a public highway. Spouses Williams pointed out that when Zerda
purchased the dominant estate, he knew that Sierra was in negotiation with
them for the sale of the dominant estate, thus, he was in bad faith.
Nonetheless, it cannot be used to defeat the respondent's claim for a right
of way. Sierra had every right to sell his property to anybody. Further, when
the Zerda bought the dominant estate there could have been no existing
contract of sale yet considering that Spouses Williams and Sierra were still
in negotiation. Hence, consent, one of the essential requisites for a valid
contract, was lacking.