G.R. No.

L-20786 October 30, 1965

IN RE: PETITION FOR CANCELLATION OF CONDITION ANNOTATED ON TRANSFER

CERTIFICATE OF TITLE No. 54417, QUEZON CITY, DRA. RAFAELA V. TRIAS, married to
MANUEL SIA RAMOS, petitioner-appellee,
vs.
GREGORIO ARANETA, INC. oppositor-appellant.

Yatco & Yatco for petitioner-appellee.

Araneta & Araneta for oppositor-appellant.

BENGZON, C.J.:

In May 1963, Rafaela Trias, married, filed in the Rizal court of first instance, a petition to cancel from
her Torrens certificate of title, the annotation appearing on its back which reads as follows:

5. That no factories will be permitted in this section.

She alleged she was the registered owner of this lot in Quezon City; that she wanted the
cancellation, not for the purpose of erecting a factory thereon, but merely to facilitate approval of a
loan she had applied for; that the restriction was illegal, because it impaired the owner's dominical
rights; and that it was a mere surplusage anyhow, because there are zoning ordinances prohibiting
establishment of factories in that district.

Acting on the petition, the court granted it, endorsing her views, particularly the one referring to
surplusage due to a zoning ordinance.

Two weeks later, Gregorio Araneta, Inc. moved for reconsideration of the order, alleging: (a) that the
condition had been inserted in the title pursuant to a contract of sale between it and Rafaela's
predecessor-in-interest; (b) that it received no timely notice of petition; (c) that the order disregards
contractual rights and obligations; (d) that the prohibition against factories was valid, and not a
surplusage; and (e) that the Court had no jurisdiction to act on the petition.

Upon denial of its motion to reconsider, Gregorio Araneta, Inc. appealed to this Court.

There are no issues of fact. The parties agree: (1) that the lot was part of a subdivision and originally
belonged to J.M. Tuason & Co. Inc. which corporation upon selling it (thru Araneta Inc.) to a
purchaser (Garcia Mateo and Deogracias Lopez), imposed the prohibition; that such prohibition was
accordingly printed on the back of the transfer certificate issued to the purchaser; (2) after several
transfers, always subject to the prohibition, Rafaela acquired the lot, again subject to the limitation
which was repeated on the back of her certificate; (3) that upon receiving her certificate, she noticed
the prohibition; and so, arguing that it infringes the owner's right to use her land, she asked for its
cancellation; (4) as already stated, she obtained relief.

The questions at issue here are: (a) the validity of the prohibition or limitation; (b) the effect of the
zoning ordinance.

Such prohibition is similar to other conditions imposed by sellers of subdivision lots upon purchasers
thereof, in and around Manila. It is in reality an easement, 1 which every owner of real estate may
validly impose under Art. 594 of the Civil Code or under Art. 688 of the New Civil Code, which
provides that "the owner of a piece of land nay establish thereon the easements which he may deem
suitable, ... provided he does not contravene the law, public policy or public order".

No law has been cited outlawing this condition or limitation, which evidently was imposed by the
owner of the subdivision to establish a residential section in that area, or the purpose of assuring
purchasers of the lots therein that the peace and quiet of the place will not be disturbed by the noise
or smoke of factories in the vicinity.

The limitation is essentially a contractual obligation which the seller, Tuason & Co., Inc. (thru
Araneta Inc.) imposed, and the purchaser agreed to accept. Of course, it restricts the free use of the
parcel of land by the purchaser. However, "while the courts have manifested some disfavor of
covenants restricting the use of property, they have generally sustained them where reasonable, and
not contrary to public policy ... ." (14 Am. Jur. 616.).

"The validity of building restrictions limiting buildings to residences, ... restrictions as to the character
or location of buildings or structures to be erected on the land ... has been sustained. (14 Am. Jur.
617, citing cases.)

Now, it is proper for Tuason & Co., Inc. (thru Araneta, Inc.) to oppose the elimination of the condition
from the certificate of title, because, if it is erased, a purchaser who gets a new certificate of title
without the annotation, will hold the lot free from the encumbrance, and might build a factory
there.2 As declared by sec. 39 of Act 496 as amended, "every purchaser of registered land ... shall
hold the same free from all encumbrances except those noted in said certificate."

The existence of a zoning ordinance prohibiting factories in the area is immaterial. The ordinance
might be repealed at any time; and if so repealed, this prohibition would not be enforceable against
new purchasers of the land, who may be ignorant thereof. The same remark applies to Rafaela's
promise not to build a factory on the lot: new owners might not be bound.

A problem might arise if and when the ordinance is amended so as to convert the area into an
industrial zone — impliedly permitting factories. Probably, the limitation might still bind the lot owner
(with annotation) ; but it is not the present issue, and we do not now decide it.

IN THIS VIEW OF THE CASE, it becomes unnecessary to take up the other questions discussed by
appellant, regarding notice and jurisdiction. Neither do we pass on the point raised by appellee
concerning appellant's personality to object to the cancellation; because anyway, the proper party in
interest (J.M. Tuason & Co., Inc.) could be impleaded as substitute party on appeal. (Alonzo v.
Villamor, 16 Phil. 315).

The appealed order is reversed, and the petition to cancel is denied, with costs against petitioner. So
ordered.

Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.
Reyes, J.B.L., J., took no part.

Footnotes

1 For that reason it was annotated, as it should, in all subsequent transfer certificates.

2And J. M. Tuason & Co., Inc. might be liable to those who bought lots in the subdivision
relying on the prohibition against factories in that part of the city.
 [G.R. No. 183719 : February 02, 2011]

MARGARITA F. CASTRO, PETITIONER, VS. NAPOLEON A. MONSOD,

RESPONDENT.

DECISION

NACHURA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court, assailing the Decision[1] dated May 25, 2007 and the Resolution[2] dated July 14,
2008 of the Court of Appeals (CA) in CA-G.R. CV No. 83973.

The antecedents of the case are as follows:

Petitioner is the registered owner of a parcel of land located on Garnet Street,

Manuela Homes, Pamplona, Las Piñas City, and covered by Transfer Certificate of Title
(TCT) No. T-36071, with an area of one hundred thirty (130) square meters
(sq.m.). Respondent, on the other hand, is the owner of the property adjoining the lot
of petitioner, located on Lyra Street, Moonwalk Village, Phase 2, Las Piñas City. There
is a concrete fence, more or less two (2) meters high, dividing Manuela Homes from
Moonwalk Village.[3]

On February 29, 2000, respondent caused the annotation of an adverse claim against
sixty-five (65) sq.m. of the property of petitioner covered by TCT No. T-36071. The
adverse claim was filed without any claim of ownership over the property. Respondent
was merely asserting the existing legal easement of lateral and subjacent support at
the rear portion of his estate to prevent the property from collapsing, since his property
is located at an elevated plateau of fifteen (15) feet, more or less, above the level of
petitioner's property.[4] Respondent also filed a complaint for malicious mischief and
malicious destruction before the office of the barangay chairman.[5]

In defiance, petitioner filed a complaint for damages with temporary restraining

order/writ of preliminary injunction before the Regional Trial Court (RTC) of Las Piñas
City. Petitioner also prayed that the Register of Deeds of Las Piñas City be ordered to
cancel the annotation of the adverse claim on TCT No. T-36071.[6]

Prior to the filing of the case before the RTC, there were deposits of soil and rocks
about two (2) meters away from the front door of the house of

petitioner. As such, petitioner was not able to park her vehicle at the dead-end portion
of Garnet Street. When petitioner noticed a leak that caused the front portion of her
house to be slippery, she hired construction workers to see where the leak was coming
from. The workers had already started digging when police officers sent by respondent
came and stopped the workers from finishing their job.[7]

Petitioner averred that when she bought the property from Manuela Homes in 1994,
there was no annotation or existence of any easement over the property. Respondent
neither asked permission nor talked to her with regard to the use of 65 sq.m. of her
property as easement. Upon learning of the adverse claim, she felt disturbed and
experienced sleepless nights for fear that she would not be able to sell her
property. Petitioner admitted that TCT No. 36071 does not cover the open space at the
dead-end portion of Garnet Street.[8]

For his part, respondent claimed that he and his family had been residing in Moonwalk
Village since June 1984. Adjacent to his property is the land of petitioner in Manuela
Homes. When he bought the property in 1983, the land elevation of Moonwalk Village
was almost on the same level as Manuela Homes. However, sometime in 1985 and
1986, Pilar Development Corporation, the developer of Manuela Homes, bulldozed,
excavated, and transferred portions of the elevated land to the lower portions of
Manuela Homes. Thus, Manuela Homes became lower than Moonwalk Village.[9]

Before the said excavation, respondent personally complained to Pilar

Development Corporation and was assured that, as provided by the National Building
Code, an embankment will be retained at the boundary of Manuela Homes and
Moonwalk Village, which is more or less fifteen (15) feet higher than Manuela
Homes.[10]

Manuela Homes retained the embankment consisting of soil and rocks. Respondent had
the open space riprapped with stones as reinforcement against any potential soil
erosion, earthquake, and possible digging by any person.

Respondent asserted that the affidavit of adverse claim was for the annotation of the
lateral and subjacent easement of his property over the property of petitioner, in view
of the latter's manifest determination to remove the embankment left by the developer
of Manuela Homes.

On October 11, 2004, the RTC rendered a decision,[11] the dispositive portion of which
reads:

WHEREFORE, premises considered, this court hereby renders judgment: (1) ordering
the cancellation of [respondent's] adverse claim at the back of Transfer Certificate of
Title No. T-36071 at the expense of [respondent] Napoleon Monsod; (2) ordering the
said [respondent] to pay the herein [petitioner] the amount of Php50,000.00 as moral
damages; and (3) dismissing [petitioner's] claim for actual damages, attorney's fees,
litigation costs and costs of suit and [respondent's] compulsory counterclaim for lack of
merit.

SO ORDERED.[12]

The trial court ratiocinated that the adverse claim of respondent was non-registrable
considering that the basis of his claim was an easement and not an interest adverse to
the registered owner, and neither did he contest the title of petitioner. Furthermore, the
adverse claim of respondent failed to comply with the requisites provided under Section
70 of Presidential Decree No. 1529.[13]

On appeal, the CA reversed the decision of the trial court in a Decision [14] dated May
25, 2007, the fallo of which reads:
WHEREFORE, premises considered, the instant appeal is GRANTED. The Decision of
the Regional Trial Court, Branch 198, Las Piñas City dated October 11, 2004
is REVERSED and SET ASIDE. The Court hereby orders the retention of the
annotation at the back of Transfer Certificate of Title No. T-36071, not as an adverse
claim, but a recognition of the existence of a legal easement of subjacent and lateral
support constituted on the lengthwise or horizontal land support/embankment area of
sixty-five (65) square meters, more or less, of the property of [petitioner] Margarita
Castro. The writ of preliminary injunction issued by this Court on April 18, 2006 is
hereby made permanent. [Petitioner's] claim for damages is likewise DISMISSED.

SO ORDERED.[15]

The CA ruled that while respondent's adverse claim could not be sanctioned because it
did not fall under the requisites for registering an adverse claim, the same might be
duly annotated in the title as recognition of the existence of a legal easement of
subjacent and lateral support. The purpose of the annotation was to prevent petitioner
from making injurious excavations on the subject embankment as to deprive the
residential house and lot of respondent of its natural support and cause it to collapse.
Respondent only asked that petitioner respect the legal easement already existing
thereon.[16]

On June 15, 2007, petitioner filed a motion for reconsideration. However, the CA denied
the same in a Resolution[17] dated July 14, 2008.

Hence, this petition.

The issue in this case is whether the easement of lateral and subjacent support exists
on the subject adjacent properties and, if it does, whether the same may be annotated
at the back of the title of the servient estate.

Article 437 of the Civil Code provides that the owner of a parcel of land is the owner of
its surface and of everything under it, and he can construct thereon any works, or make
any plantations and excavations which he may deem proper. However, such right of the
owner is not absolute and is subject to the following limitations: (1) servitudes or
easements,[18](2) special laws,[19] (3) ordinances,[20] (4) reasonable requirements of
aerial navigation,[21] and (5) rights of third persons.[22]

Respondent filed before the RTC an affidavit of adverse claim, the pertinent portions of
which read:

5. That our adverse claim consists of rights of legal or compulsory easement of lateral
and subjacent support (under the Civil Code) over a portion of the above-described
property of owner Margarita F. Castro, that is, covering the lengthwise or horizontal
land support/embankment area of sixty-five (65) square meters, more or less.

6. That said registered owner has attempted to destroy and/or remove portions of the
existing lateral/subjacent land and cement supports adjoining the said two properties.
In fact, a portion of the easement was already destroyed/removed, to the continuing
prejudice of herein adverse claimant, and that a formal complaint against said
registered owner was filed by the herein adverse claimant before the Office of the
Barangay Chairman of Talon V, Las Piñas City and the same proved futile.[23]

Respondent's assertion that he has an adverse claim over the 65 sq.m. property of
petitioner is misplaced since he does not have a claim over the ownership of the land.
The annotation of an adverse claim over registered land under Section 70 of
Presidential Decree 1529[24] requires a claim on the title of the disputed land.
Annotation is done to apprise third persons that there is a controversy over the
ownership of the land and to preserve and protect the right of the adverse claimant
during the pendency of the controversy. It is a notice to third persons that any
transaction regarding the disputed land is subject to the outcome of the dispute. [25]

In reality, what respondent is claiming is a judicial recognition of the existence of the

easement of subjacent and lateral support over the 65 sq. m. portion of petitioner's
property covering the land support/embankment area. His reason for the annotation is
only to prevent petitioner from removing the embankment or from digging on the
property for fear of soil erosion that might weaken the foundation of the rear portion of
his property which is adjacent to the property of petitioner.

An easement or servitude is an encumbrance imposed upon an immovable for the

benefit of another immovable belonging to a different owner.[26] There are two kinds of
easements according to source. An easement is established either by law or by will of
the owners.[27] The courts cannot impose or constitute any servitude where none
existed. They can only declare its existence if in reality it exists by law or by the will of
the owners. There are therefore no judicial easements.[28]

Article 684 of the Civil Code provides that no proprietor shall make such excavations
upon his land as to deprive any adjacent land or building of sufficient lateral or
subjacent support. An owner, by virtue of his surface right, may make excavations on
his land, but his right is subject to the limitation that he shall not deprive any adjacent
land or building of sufficient lateral or subjacent support. Between two adjacent
landowners, each has an absolute property right to have his land laterally supported by
the soil of his neighbor, and if either, in excavating on his own premises, he so disturbs
the lateral support of his neighbor's land as to cause it, or, in its natural state, by the
pressure of its own weight, to fall away or slide from its position, the one so excavating
is liable.[29]

In the instant case, an easement of subjacent and lateral support exists in favor of
respondent. It was established that the properties of petitioner and respondent adjoin
each other. The residential house and lot of respondent is located on an elevated
plateau of fifteen (15) feet above the level of petitioner's property. The embankment
and the riprapped stones have been in existence even before petitioner became the
owner of the property. It was proven that petitioner has been making excavations and
diggings on the subject embankment and, unless restrained, the continued excavation
of the embankment could cause the foundation of the rear portion of the house of
respondent to collapse, resulting in the destruction of a huge part of the family
dwelling.[30]

We sustain the CA in declaring that a permanent injunction on the part of petitioner

from making injurious excavations is necessary in order to protect the interest of
respondent. However, an annotation of the existence of the subjacent and lateral
support is no longer necessary. It exists whether or not it is annotated or registered in
the registry of property. A judicial recognition of the same already binds the property
and the owner of the same, including her successors-in-interest. Otherwise, every
adjoining landowner would come to court or have the easement of subjacent and lateral
support registered in order for it to be recognized and respected.

WHEREFORE, in view of the foregoing, the Decision dated May 25, 2007 and the
Resolution dated July 14, 2008 of the Court of Appeals in CA-G.R. CV No. 83973 are
hereby AFFIRMED WITH MODIFICATION that the annotation at the back of Transfer
Certificate of Title No. T-36071, recognizing the existence of the legal easement of
subjacent and lateral support constituted on the lengthwise or horizontal land
support/embankment area of sixty-five (65) square meters, more or less, of the
property of petitioner Margarita F. Castro, is hereby ordered removed.

SO ORDERED.

Carpio, (Chairperson), Peralta, Abad, and Mendoza, JJ., concur.

G.R. No. L-6629 September 30, 1954

EUFROCINA HIDALGO CABACUNGAN, AURELIA HIDALGO ROLDAN, and TERESA HIDALGO

IGLESIAS, plaintiffs-appellants,
vs.
QUINTIN CORRALES and CATALINA V .CORRALES, defendants-appellees.

Constante R. Ayson for appellants.

Federico S. Tecson and Manuel D. Villanueva for appellees.

REYES, A., J.:

This is an appeal from an order of the Court of First Instance of Ilocos Sur dismissing appellants'
complaint.

The complaint sets up three causes of action, but for allegedly not pleading facts sufficient to support
any of them, the court ordered it dismissed on defendants' motion before answer.

1. For its first cause of action, the complaint alleges in effect that plaintiffs, now appellants, are
sisters and, together with three other sisters, "co-heirs and co-owners" of a piece of land therein
described; that having been notified on September 6, 1952, that two of their sisters, co-heirs and co-
owners - Sofia Hidalgo Soria and Carmen Soria Abad - had sold their undivided shares in said land
to defendant Quintin Corrales, an outsider, and wishing to be subrogated to the rights of the buyer in
accordance with article 1088 of the New Civil Code, plaintiffs, on the 10th of the same month,
approached the said Quintin Corrales and his wife and co-defendant Catalina V. Corrales and
rendered them P600 for that purpose, but the tender was refused. Plaintiffs, therefore, pray that
defendants be ordered to allow them to exercise their right of legal redemption. Considering the case
to be one of redemption among co-owners under article 1620 in connection with article 1623 of the
New Civil Code and not that of redemption among co-heirs under article 1088 thereof, the lower
court held the complaint insufficient for not containing "any allegation respecting the existence of any
notice in writing by the vendor or vendee of the date of such notice if any" and "any allegation to
show if the deeds of sale in favor of the defendants were registered in the Registry of Property and if
there were any affidavit of the vendor or vendors to the effect that such vendor or vendors have
given written notice of the sale or purchase to all possible redemptioners or in this case to the
plaintiffs." We note, however, that the complaint does allege that plaintiffs were, on September 6,
1952, notified of the sale and that on the 10th of that month they made their offer to redeem. If
information was desired whether the notice was in writing or that the sale was recorded in the
registry of property and there was an affidavit of the vendors that written notice of the sale had been
given to plaintiffs, the complaint could have been ordered amended to include those particulars.

Defendants have, indeed, annexed to their motion to dismiss an affidavit to the effect that written
notice of the sale was given to the other co-owners on February 25, 1952, which, if true, might, in the
absence of other circumstances, make plaintiff's offer to redeem on February 6 out of time. But
whether the notice of the sale was given on February 25, as stated in the affidavit, or on September
6, as stated in the complaint, was a question of fact which could best be determined after trial on the
merits or in a motion for summary judgment and not in a mere motion to dismiss, as this
hypothetically admits the allegations of the complaint. Moreover, the affidavit mentioned refers only
to the share of Sofia Hidalgo Soria and says nothing of the share of her sister Carmen Soria Abad as
to which there is nothing said therein to contradict plaintiffs' allegation that notice of sale was given
on September 6.
It is, therefore, our view that the complaint should not have been dismissed as to the first cause of
action.

2. The second cause of action is for moral damages alleged to have been suffered by plaintiffs on
account of their arrest and incarceration by reason of a false and malicious complaint filed against
them in the Justice of the Peace Court of Narvacan by Catalina V. Corrales, one of the herein
defendants, charging them with the crime of malicious mischief. But there is no allegation that
plaintiffs have been acquitted. Indeed, it would appear from a certified copy of docket entries
referring to the case that the same is still pending trial. Obviously, plaintiffs' second cause of action
has not yet accrued. The complaint hat cause was, therefore, property dismissed as premature.

3. For a third cause of action, the complaint alleges that in January, 1950, defendants, being owners
of a lot contiguous to the land here in question, constructed a building on said lot with balcony and
windows less than three meters distant from said land and with roof that drains rain water into it in
violation of Article 670 and 674, respectively, of the New Civil Code. Plaintiffs, therefore, pray that
the said balcony and windows be ordered closed and the roofs constructed in such a way that rain
water would not fall on plaintiffs' land. Taking the view that, with the acquisition by defendants of a
share in the land in question, the easement of light, view and drainage was extinguished "by merger
in the same person of the ownership of dominant and servant estates" pursuant to Article 631 of the
New Civil Code, the lower court ruled out this cause of action. This view if patently erroneous. As
defendants have not become sole owners of the servient estate, for they have acquired only a part
interest therein, it cannot be said that in this case ownership of the dominant and servient estates
has been merged in the same person for the purposes of the article cited. Thus, commenting on the
corresponding article of the Spanish Civil Code (Art. 546), Manresa observes that under that article
the easement is not extinguished by the acquisition of a share in property held in common. He
says:1âwphïl.nêt

(c) La adquisicion de una parte proindiviso del dominio. En este caso no se adquiere la
propiedad plena indispensable para la extincion de la servidumbre, sino una fraccion, porque
el dominio se halla representado por todos los comuneros y no por uno solo. Ademas, no se
reune propiamente el dominion en una sola persona, segun exige al numero 1. o del articulo 546.
Asi en el predio o en la servidumbre o al predio que se posee proindiviso, existe un derecho abstracto, indeterminado, mientras
que respecto a la servidumbre o al predio que se posee por entero existe un derechoi determinado y especial. Asi tambien, el
dueño del predio dominante, participe proindiviso del sirviente, puede oponerse a todo acto acordado por los comuneros que
tienda a perjudicar la servidumbre, y el dueño del predio sirviente, participe proindiviso del dominante, no puede, por su sola
voluntad, perjudicar ni menos extinguir el derecho que, no a el, sino a todos los comuneros corresponde. (IV Manresa, 6th ed.,
pp. 706-707.)

And as to the matter of drainage, Article 674 of the New Civil Code specifically provides "that the
owner of a building shall be obliged to construct its roof or covering in such a manner that the rain
water shall fall on his own land or on a street or public place, and not on the land of his
neighbor, even though the adjacent land may belong to two or more persons, one of whom is the
owner of the proof." (Emphasis supplied.)

In view of the foregoing, the order of dismissal is affirmed as to the second cause of action, but
revoked with respect to the first and third causes of action, as to which the case is ordered
remanded to the court below for further proceedings. Costs against the appellees.

Paras., C.J., Pablo, Bengzon, Padilla, Montemayor, Jugo, Bautista Angelo, Concepcion and Reyes,
J.B.L., JJ., concur.
G.R. No. L-48959 February 11, 1944

JOSE DIAZ and ESCOLASTICA SULIT, petitioners,

vs.
VICENTE DEL ROSARIO, respondent.

OZAETA, J.:

The beautiful good-neighborliness which for generations has existed between

two respectable families, cemented by ties of intimate friendship, and nurtured
and strengthened by considerations of mutual esteem and affection, was by this
litigation pathetically ruined and reduced to but a poignant memory between
them. The venerable heads of the two families of the peaceful town of San
Mateo, Rizal, who are made unnecessarily to embitter the approaching sunset
of their lives with this protracted and expensive lawsuit, apparently motivated
more by lacerated feelings and hurt pride than by the conflict of property rights,
are the bachelor septuagenarian Vicente del Rosario, represented by his nephew,
Attorney Vicente Santiago, and the octogenarian Escolastica Sulit, aided by her
son, Mr. Jose Diaz. They and their ancestors had lived in amity and harmony as
good neighbors on two contiguous lots facing the town plaza of San Mateo, with
the eaves of their respective houses almost touching each other and with neither
fence nor monument to mark the boundary between them. it is to fix that
boundary now that the present suit has been brought by Vicente Del Rosario
against Escolastica Sulit and her son Jose Diaz.

The litigants respectively claim full ownership and possession of the strip of
land about 26 meters long and 1.13 meters wide that lies between their respective
houses. The eaves of the house of the plaintiff, which was built about the year
1872, cover part of that strip, while the eaves of the present house of the
defendants, which was constructed in 1933, overlap those of the plaintiff's. The
entrance to the premises of the defendants is thru the strip of land in question.
The concrete platform on which defendants' stairway rest covers almost the
entire width of said strip of land, while a camarin of theirs covers the rear end of
the same strip. said concrete platform has been preserved from the old house of
the defendants which was demolished in order to build their present house. The
old house, constructed at an undetermined time during the Spanish regime, was
smaller and lower than the present house and a little father from the house of
the plaintiff. While the present new house of the defendants was being
constructed, they and all the members of their family lived and were
accommodated by the plaintiff in his ancestral home, and the plaintiff
interposed no objection to and did not prevent the defendants from so
constructing their new house as to make its eaves cover those of his. Neither
does it appear that he ever prohibited defendants' passage thru the strip of land
in controversy.

To whom does the strip of land in question belong? The trial judge, Hon.
Servillano Platon, who made an ocular inspection of the premises, declared that
one half of it, divided lengthwise, belongs to the plaintiff and the other half to
the defendants, and that both parties must respect the constructions of both
houses in their present form until the defendants make a repair in the roofing of
their house on the north side which overlaps that of the plaintiff, in which event
the plaintiff may prevent them from doing so unless they adjust it to the terms
of the adjudication. Both parties appealed to the Court of Appeals, which at first
declared that the whole strip of land in question belonged to the defendants by
prescription, but later reconsidered and modified its judgment by declaring that
of said strip of land only the portions covered by the concrete platform and by
defendants' camarin belong to them and that the rest of it belongs to the
plaintiff, subject to an easement of right of way in favor of the defendants
leading to the said platform of the stairway and thence to the camarin beyond it,
and ordering the defendants to construct a galvanized iron gutter or eaves-
trough so that the rain water would not fall on the roof of the plaintiff. From that
judgment as modified, the defendants have appealed to this Court by certiorari.

From the fact that the house of the plaintiff was so constructed as to make the
rain water fall from its roof onto the land in question, the Court of Appeals
concluded that said land must have belonged to the plaintiff, because article 586
of the Civil Code provides that "the owner of a building shall be obliged to
construct the roof or covering thereof in such a manner that rain water shall fall
on his own land, or on a street or public place, and not on the land of his
neighbor." But we do not consider that fact decisive and conclusive of ownership
because, considering the good and amicable relations existing between the
parties, the construction of plaintiff's house in that manner might very well
have been merely tolerated by the defendants or by their ancestors, just as the
construction of the defendants' concrete platform and camarin and the passage
to them thru the rest of the strip of land in question might have been merely
tolerated by the plaintiff upon the same consideration of good-neighborliness.
In view of the overlapping rights of the parties, it is evident that they and their
predecessors could have made use of the strip of land in question only by mutual
tolerance, and it cannot be said that the possession of one has been adverse to
and exclusive of the other. Under the facts and circumstances of this case as
found by the Court of Appeals, we believe and so decide that the judgment of the
trial court was just and correct, in accordance with article 386 of the Civil Code,
which reads as follows:
 Art. 386. — If the titles do not fix the boundaries or area of each owner,
and the question cannot be decided by possession or by other means of
proof, the demarcation shall be made by dividing the land in dispute into
equal parts.

The result, therefore, is that the rights of the parties to and their enjoyment of
the strip of land in controversy shall remain as they have always been ever since
they and their ancestors established themselves on the two contiguous lots and
maintained with each other cordial relations of friendship and good-
neighborliness, which are far more valuable than petty property rights, undue
concern for which the present succeeding generation of the two good families
seem to have been unfortunately obsessed with to the extent of marring their
beautiful friendship. May the conciliatory words of ours serve as a balm for hurt
pride and revive the mystic chord of memories and associations stretching from
the present generation of heirs back to their ancient lineage and constituting the
sustaining root of their mutual esteem and friendship.

The judgment of the Court of Appeals is reversed and that of the Court of First
Instance is hereby affirmed and reinstated, it being understood that the
easements heretofore respectively enjoyed by the parties shall remain
unaffected by this judgment. No costs to either party.

Yulo, C.J., Moran, Horrilleno, Paras and Bocobo, JJ., concur.

G.R. No. L-10372 December 24, 1915

DOMINGO LAO and ALBINA DE LOS SANTOS, applicants-appellants,

vs.
THE HEIRS OF LORENZA ALBURO, objectors-appellees.

Medina, Gabriel and Diaz for appellants.

Buenaventura Reyes for appellees.

TORRES, J.:

This appeal by bill of exceptions was taken from the judgment of August 17, 1914, in which the
honorable judge of the Court of Land Registration decreed that, after the description of the parcel of
land No. 2 should have been amended in the manner indicated, the parcels of land in the case at bar
should be registered in the name of the applicants, Domingo Lao and his wife Albina de los Santos.
It was held in this decree that the wall, called a stone wall in the plan of the said parcel No. 2, was a
party wall between the said parcel and the property adjoining it on the north-west. Counsel for the
applicants excepted to this finding and moved for a new trial. His motion was overruled whereupon
the applicants excepted and duly filed their bill of exceptions, which was approved and transmitted to
this court.

On May 8, 1914, counsel for the said husband and wife filed a written application in the Court of
Land Registration for the registration of four parcels of land, together with the buildings thereon, of
which they claimed to be the absolute owners. The first of said parcels, Lot No. 1, comprising a
house and three other buildings known as accesorias, all of strong materials, is situated in Calle
Juan Luna, formerly Calle Jolo or Anloague of the district of Binondo, and has an area of 175.08
square meters; the second parcel, Lot No. 2, comprising a house of strong materials erected
thereon, likewise situated in Calle Juan Luna, formerly Calle Jolo or Anloague, Binondo, is 212.05
square meters in area; the third parcel of land, Lot No. 3, located in Calle Elcano, San Nicolas,
Binondo, and measures 596.06 square meters in area; and the fourth parcel of land, Lot No. 2,
containing two buildings of strong materials, one of them of three stories, situated in Calle Elcano,
San Nicolas, Binondo, 813.01 square meters in area. The street numbers of the two latter properties
appear in the said judgment, and their boundaries are given in both the said plan No. 1 and in their
respective technical descriptions.

The application recites that the first of the four above-mentioned properties was appraised in the last
assessment, the land at P4,664 and the buildings at P4,000; the second parcel, the land at P5,492
and the buildings at P3,600; the third parcel, the land at P6,329 and the buildings at P4,000; and the
fourth parcel, the land at P8,529 and the buildings at P22,500; and that the said properties are all
unencumbered and no one has any right or share therein except the applicants, who acquired them
by purchase, the first parcel from Felix Zalvidea, by a public instrument of June 11, 1912; the second
parcel, from Clara Lichauco and her husband Catalino Arevalo, by a public instrument of September
12, 1912; the third parcel, from Antonio Abraham Brimo, by a public instrument of March 28, 1911;
and the fourth parcel, from Marcela Lao, by a public instrument of April 17, 1914. The application
recited the names of the tenants who occupy the first three properties and states that the applicants
occupy the fourth. The names and addresses of the owners or proprietors of the adjoining properties
are also given.
After due service of notice, counsel for the administrator of the estate of the deceased Lorenza
Alburo filed in court a written objection, alleging that in the part of the application relative to the
second parcel of the plan No. 1, a stone wall shown in that plan to be northeast of the said parcel
had been improperly included; that this wall had belonged to the said Lorenza Alburo, for it had
existed since March 8, 1881; that the principal timbers of the building that had belonged to the said
deceased had rested on it for more than thirty-five years, and the latter's successors had been and
were now in the quiet, peaceable and uninterrupted possession of the said wall.

At the trial of the case both parties thereto introduced documentary and oral evidence, and the judge
of the Court of Land Registration made a personal inspection of the wall in question and of the
respective properties of the applicants and the objectors.

In the judgment appealed from it is held that the applicants, Domingo Lao and Albina de los Santos,
conclusively and satisfactorily proved that they were, and had been for about forty years, the lawful
owners and possessors of the four properties sought to be registered; wherefore the court decreed
the registration thereof in their names, but ordered that record be made in the decree that the wall
marked on the plan of the parcel No. 2 as a stone wall was a party wall.

Hence the question to be decided relates solely to the matter of the said wall of the property
designated as parcel No. 2 — the subject matter of the objection filed by the administrator of the
estate of the deceased Lorenza Alburo, owner of the property adjoining that designated as parcel
No. 2 — inasmuch as the administrator alleges in his objection that the said stone wall forms a part
of the property that belonged to the said deceased while the applicants claim that this wall is theirs,
being a part of the strong-minded material house constructed on the said parcel of land, Lot No. 2
according to the plan, Exhibit A.

Article 572 of the Civil Code provides that the easement of party walls is presumed, unless there is a
title or exterior mark or proof to the contrary in the dividing walls of adjoining buildings up to the
common point of elevation. As the court held judgment appealed from that the wall which lies
between the properties of the applicant and the objectors was a party wall, and as the applicants
appealed from this ruling, it devolves upon us to decide whether it is in fact a party wall, as counsel
for the administrator of the estate of the deceased Alburo or for her heirs finally admitted that it was
in assenting to that decision, although he averred in his written objection that it was the exclusive
property of the objectors; or whether, on the contrary, this wall is a part of property marked No. 2 on
the plan Exhibit A, as the applicants claims.

Article 573 of the Civil Code also declares that it shall be understood that there are exterior signs
which conflict with the easement of party wall, when, among other circumstances, the entire wall is
built on one of the lots and not on the line dividing the two adjoining parcels; when the dividing wall,
being constructed of stone and cement, has stone projecting at intervals from the surface on one
side only and not on the other; and when it supports joists, beams, floors, and the roof timbers of
one of the houses but not of the adjoining building. 1awphil.net

The record shows it to have been duly proven that the enclosing wall of Lot No. 2 of the plan Exhibit
A, belonging to the applicants, is much higher than the adjoining building of the objectors; that along
the top of the said wall there is a gutter which catches the rain water from the eaves of the roof of the
applicants' building and carries it thence to Calle Juan Luna through an iron pipe fastened to the said
wall; that one-half of the top of the said wall is covered by the roof of the applicants' building; that the
supports of the said wall project toward the side of the applicants' land and that none of the
buttresses are on the side of the objectors' lot; that the stones of the wall in dispute are bound or
inset in the rear enclosing wall of the applicants' property in such wise that the two walls that inclose
the lot form but a single construction, the exterior signs of which show that the wall in question is not
a party wall, but that it forms a part of the applicant's building and belongs to them.

Besides the signs just referred to, the evidence also shows that on the objectors' land and flanking
the disputed wall there is another and lower wall which has no connection with the one in question.
Cayetano Arguelles, a master builder, who climbed to the top of the wall in question and examined it,
testified that the aforesaid drain caught the rain water from the eaves of the applicants' roof, and that
from the outside the division or space between the applicants' wall and the wall on the objectors'
land could be seen; that the lower part of this latter wall had two arch like hollows; that according to
the testimony of the objector, Ireneo Mendoza, the latter wall was that of an old building that had
belonged to the said deceased and was destroyed by an earthquake; and that in the rear of the
objectors' land were the ruins of a wall which had also flanked the wall in dispute, and these ruins,
according to the said witness Mendoza were what was left of the wall of a latrine formerly existing
there.

These exterior signs contrary to the existence of a party-wall easement cannot be offset by the
circumstance that the dispute wall projects into Calle Juan Luna 74 centimeters farther than the
applicants' building, and neither can the fact that the face of this projecting wall is on the same street
line as the objectors' building, for the reason that, in view of the said signs contrary to the existence
of the easement of party wall, the projection of the wall does not prove that it was a party wall
belonging in common to the applicants and the objectors and that the latter shared in the ownership
thereof.

The objectors have not proved that a part or one-half of the wall in litigation was erected on the land
that belonged to the deceased Lorenza Alburo. The fact that the owners of the objectors' property
may have surreptitiously inserted some of the timbers or joists of their building in the wall belonging
to the applicants is not enough to convert this latter into a party wall, when there are so many
exterior signs to indicate the exclusive ownership of the wall and to conflict with the existence of the
easement that the objectors endeavor to establish. The wall in litigation is fully proven by the record
to belong exclusively to the applicants.

All of the applicants' properties, including the wall in question, should therefore be registered. itc-a1f

For the foregoing reasons the judgment appealed from is affirmed, but the decree of registration of
the property designated as Lot No. 2 shall include the disputed wall as belonging exclusively to the
applicants, and that part of said wall is a party wall is hereby reversed; without special finding as to
costs. So ordered.

Arellano, C.J., Johnson, Carson, Moreland, Trent and Araullo, JJ., concur.
G.R. No. 158141 July 11, 2006

FAUSTO R. PREYSLER, JR., petitioner,

vs.
COURT OF APPEALS and FAR EAST ENTERPRISES, INC., respondents.

DECISION

QUISUMBING, J.:

This petition for review assails the Decision1 dated January 20, 2003 and Resolution2 dated May 20,
2003 of the Court of Appeals in CA-G.R. SP No. 52946. The Court of Appeals lifted the amended
writ of preliminary injunction dated December 29, 1998 issued by the Regional Trial Court, Branch
14 of Nasugbu, Batangas in Civil Case No. 345 and reinstated the original writ dated December 12,
1996.

The antecedent facts are as follows:

Private respondent Far East Enterprises, Inc., owns Tali Beach Subdivision. Petitioner Fausto
Preysler, Jr. and his wife owned lots therein and also two parcels of land adjacent to the subdivision.
These two parcels were bounded on the North and West by the China Sea and on the East and
South by the subdivision. To gain access to the two parcels petitioner has to pass through private
respondent's subdivision. Petitioner offered P10,000 for the easement of right of way but private
respondent refused it for being grossly inadequate. Private respondent then barricaded the front
gate of petitioner's property to prevent petitioner and his family from using the subdivision roads to
access said parcels.

The petitioner filed, with the Regional Trial Court of Nasugbu, Batangas, a Complaint for Right of
Way with prayer for preliminary prohibitive injunction against private respondent. After due hearing,
the trial court, in an Order dated November 5, 1996, held that barricading the property to prevent the
petitioner from entering it deprived him of his ownership rights and caused irreparable damage and
injuries. It ordered herein private respondent:

1) To remove or cause or allow the removal of the barricade (six concrete posts) installed by
it on the front gate of the plaintiffs' properties fronting Sea Cliff Drive;

2) To cease, desist and refrain from obstructing or hindering plaintiffs' entry into and exit from
their subject properties and/or their free passage over Sea Cliff Drive from and to the public
highway near the gate of the Tali Beach Subdivision pending termination of this litigation on
the merits and/or unless a contrary order is issued henceforth. 3

Accordingly, the writ of preliminary injunction was issued on December 12, 1996.

On July 8, 1998, petitioner used the subdivision road to transport heavy equipment and construction
materials to develop his property. Consequently, private respondent moved to dissolve the writ
claiming that the petitioner violated its right to peaceful possession and occupation of Tali Beach
Subdivision when petitioner brought in heavy equipment and construction materials. Private
respondent maintained that the damages that may be caused to it far outweigh the alleged damages
sought to be prevented by the petitioner. It alleged that there is an alternate route available to
petitioner, particularly the barangay road leading to Balaytigue and the Calabarzon Road.
For his part, the petitioner moved to clarify the December 12, 1996 writ and asked the court to
clearly define the action required of private respondent to avert further damage and inconvenience to
petitioner. Petitioner prayed that his contractors, visitors, and other representatives be allowed
access and persons he has authorized be allowed to install power lines over private respondent's
property.

On December 29, 1998, the trial court issued a Joint Resolution amending the order in the original
writ to read as follows:

1. To remove or cause or allow the removal of the barricade (six concrete posts) installed by
it on the front gate of the plaintiffs' properties fronting Sea Cliff Drive.

2. To cease, desist and refrain from obstructing or hindering plaintiffs' (including plaintiffs'
visitors, guests, contractors, and other persons authorized by or acting for and/or under said
plaintiffs) entry into and exit from their subject properties and/or their free passage over Sea
Cliff Drive and other connecting subdivision roads, from and to the public highway near the
gate of the Tali Beach Subdivision, pending the termination of this litigation on the merits
and/or unless a contrary order is issued henceforth.

3. To cease, desist and refrain from hindering or obstructing plaintiffs' contractors, guests,
visitors and other authorized persons to bring along with them their motor vehicles,
equipments, materials, supplies, machineries and other items necessary for the needs of the
plaintiffs' properties.

4. To cease, desist and refrain from hindering or obstructing the plaintiffs and/or persons
authorized by them, to install electric power lines over the Tali Beach Subdivision for
plaintiffs' electric power requirements.4

Private respondent filed a petition for certiorari with the Court of Appeals, which set aside the
amended writ dated December 29, 1998 and reinstated the original writ dated December 12, 1996
with modification as to the amount of the bond. The petitioner moved for reconsideration, but the
same was denied.

Petitioner now comes before us claiming that the Court of Appeals:

… [GRAVELY] ERRED IN FINDING AND CONCLUDING THAT THE TRIAL COURT

COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING: (1) THE JOINT
RESOLUTION DATED 29 DECEMBER 1998, … (2) THE AMENDED WRIT OF
PRELIMINARY INJUNCTION (MANDATORY AND PROHIBITORY) OF EVEN DATE …
AND (3) THE ORDER DATED 8 MARCH 1999 DENYING THE MOTION FOR
RECONSIDERATION TO RECONSIDER AND SET ASIDE THE JOINT RESOLUTION.…

II

… OVERSTEPPED THE BOUNDARY OF ITS AUTHORITY AND JURISDICTION IN

RESOLVING FACTUAL MATTERS, HOWEVER, ERRONEOUS, COULD NOT BE
REVIEWED UNDER THE EXTRAORDINARY WRIT OF CERTIORARI BUT BY ORDINARY
APPEAL, INSTEAD OF CONFINING ITSELF TO DETERMINE WHETHER OR NOT THE
TRIAL COURT COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING THE JOINT
 RESOLUTION, … THE AMENDED WRIT OF PRELIMINARY INJUNCTION (MANDATORY
AND PROHIBITORY), … AND THE ORDER DATED 6 MARCH 1996 DENYING THE
MOTION TO RECONSIDER THE JOINT RESOLUTION….

III

… EXCEEDED ITS JURISDICTION AND AUTHORITY IN SETTING ASIDE THE JOINT

RESOLUTION, … LIFTING THE AMENDED WRIT OF PRELIMINARY INJUNCTION
DATED 29 DECEMBER 1998, … AND RESTRICTING OR LIMITING PASSAGE OVER THE
TALI BEACH SUBDIVISION ROADS TO INGRESS AND EGRESS OF PETITIONER AND
MEMBERS OF THE LATTER'S HOUSEHOLD IN UTTER VIOLATION OF THE LAW ON
EASEMENT, IN GENERAL, AND LEGAL EASEMENT OF RIGHT OF WAY IN
PARTICULAR.5

Simply, the issue is whether there was a legal basis for the issuance of the amended writ of
injunction. Likewise, we need to resolve whether the right of passage allowed in the uncontested
original writ applies not only to the petitioner and his household, but also to his visitors, contractors,
construction workers, authorized persons, heavy equipment machinery, and construction materials
as well as the installation of power lines.

Petitioner contends that inherent in the right of way under Article 649 6 of the New Civil Code is the
right to cultivate and develop the property, which is an attribute of ownership provided under Article
428.7 According to petitioner, the passage of heavy equipment and construction materials through
the subdivision is granted by Article 656.8 Petitioner adds that he was not seeking the right of way
only for occasional visits to his property but also to develop, use and enjoy it.

Private respondent claims that what was granted in the original writ was not the easement of right of
way but only the maintenance of the status quo. It maintains that from the very beginning, petitioner
and his household were allowed into the subdivision only because petitioner owned several lots in
the subdivision. Hence, according to private respondent, the Court of Appeals properly dissolved the
amended writ as the status quo protected by the original writ did not include the passage of
construction workers in petitioner's property outside the subdivision. Private respondent stresses that
at the time the original writ was applied for there was no construction work yet.

Private respondent argues that its recognition of the original writ should not be construed as
admitting that petitioner had a right of way; and with no easement of right of way, petitioner cannot
claim other rights under the law on easement. It further contends that acts prohibited and allowed
under the amended writ amounted to a premature adjudication on the merits of the main case on
whether or not petitioner has a right of way, which is still pending before the trial court.

Prefatorily, we note that what was granted by the trial court was the preliminary injunction, and that
the main case for right of way has not yet been settled. We have in previous cases 9 said that the
objective of a writ of preliminary injunction is to preserve the status quo until the merits of the case
can be fully heard. Status quo is the last actual, peaceable and uncontested situation which
precedes a controversy.10 The Court of Appeals was correct in its findings that the last actual,
peaceful and uncontested situation that preceded the controversy was solely the access of petitioner
and his household to his property outside the subdivision for visits and inspections. At the time the
writ was applied for in 1995, there was still no construction going on in the property. It was merely
raw land. The use of the subdivision roads for ingress and egress of construction workers, heavy
equipment, delivery of construction materials, and installation of power lines, are clearly not part of
the status quo in the original writ. Along this line, the Court of Appeals properly set aside the
amended writ and reinstated the original writ.
However, under Article 656 of the New Civil Code, if the right of way is indispensable for the
construction, repair, improvement, alteration or beautification of a building, a temporary easement is
granted after payment of indemnity for the damage caused to the servient estate. In our view,
however, "indispensable" in this instance is not to be construed literally. Great inconvenience is
sufficient.11 In the present case, the trial court found that irrespective of which route petitioner used in
gaining access to his property, he has to pass private respondent's subdivision. Thus we agree that
petitioner may be granted a temporary easement. This temporary easement in the original writ
differs from the permanent easement of right of way now being tried in the main case.

The law provides that temporary easement is allowed only after the payment of the proper
indemnity. As there are neither sufficient allegations nor established facts in the record to help this
Court determine the proper amount of indemnity, it is best to remand the case to the trial court for
such determination.

Additionally, we find that the installation of electric power lines is a permanent easement not covered
by Article 656. Article 656 deals only with the temporary easement of passage. Neither can
installation of electric power lines be subject to a preliminary injunction for it is not part of the status
quo. Besides, more damage would be done to both parties if the power lines are installed only to be
removed later upon a contrary judgment of the court in the main case.

WHEREFORE, the petition is PARTIALLY GRANTED.

We hereby order (a) private respondent to allow the right of passage thru the subdivision by the
petitioner's visitors and guests, contractors, construction workers, heavy equipment vehicles, and
delivery construction materials; and (b) petitioner to pay private respondent the indemnity therefor to
be determined by the trial court. The case is hereby REMANDED to the trial court for the
determination of the proper amount of indemnity for the temporary easement under Article 649.

No pronouncement as to costs.

SO ORDERED.

Carpio, Carpio-Morales, Tinga, Velasco, Jr., J.J., concur.

Footnotes

1Rollo, pp. 42-69. Penned by Associate Justice Regalado E. Maambong, with Associate
Justices Delilah Vidallon-Magtolis, and Andres B. Reyes, Jr. concurring.

2 Id. at 71-73.

3 Id. at 107.

4 Id. at 146-147.

5 Id. at 21-22.
6Art. 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.

xxxx

7 Art. 428. The owner has the right to enjoy and dispose of a thing, without other limitations
than those established by law.

xxxx

8 Art. 656. If it be indispensable for the construction, repair, improvement, alteration or

beautification of a building, to carry materials through the estate of another, or to raise
thereon scaffolding or other objects necessary for the work, the owner of such estate shall be
obliged to permit the act, after receiving payment of the proper indemnity for the damage
caused him.

9Cortez-Estrada v. Heirs of Domingo Samut/Antonia Samut, G.R. No. 154407, February 14,
2005, 451 SCRA 275, 288; Medina v. Greenfield Development Corporation, G.R. No.
140228, November 19, 2004, 443 SCRA 150, 159; First Global Realty and Development
Corporation v. San Agustin, G.R. No. 144499, February 19, 2002, 377 SCRA 341, 349.

10Los Baños Rural Bank, Inc. v. Africa, G.R. No. 143994, July 11, 2002, 384 SCRA 535,
547.

11 E. Paras, Civil Code of the Philippines Annotated, Book II, 660 (14th ed., 1999).
G.R. No. 151797 October 11, 2007

SPOUSES MANUEL MEJORADA AND ROSALINDA P. MEJORADA, petitioners,

vs.
GLORIFICACION VERTUDAZO, SOL VERTUDAZO, SPS. JIMMY GALVIZO and GLOSITA T.
GALVIZO, SPS. FERMIN CABRERA and ELLEN CABRERA, SPS. FELIXTO ARIATE and RENA
ARIATE, and SPS. RAUL ARLALEJO and ARCILA ARLALEJO, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Before us is a Petition for Review on Certiorari1 assailing the Decision2 dated December 4, 2001 of
the Court of Appeals in CA-G.R. CV No. 62900, entitled "Glorificacion Vertudazo et al. v. Spouses
Manuel and Rosalinda Mejorada."

The undisputed facts are:

Sometime in 1981, Glorificacion and Sol Vertudazo and their co-respondents established their
permanent residence on a 300-square meter lot located at Telaje, Tandag, Surigao del Sur. Their
property is landlocked being bordered on all sides by different lots. As an access route going to
Quiñones Street and the public highway, they utilized a proposed undeveloped barangay road on
the south side of their property owned by Rosario Quiñones.

In 1988, spouses Manuel and Rosalinda Mejorada, petitioners, bought Rosario’s 646-square meter
lot adjacent to respondents’ property. Included therein is an area measuring 55.5 square meters
which serves as an adequate outlet to Quiñones Street, now the subject of the present controversy.
For several years, respondents and the general public have been using that area as a passageway
to and from Quiñones Street.

On July 2, 1997, petitioners closed the passageway by building a new garage for their service jeep.
Hence, respondents brought the matter to the barangay concerned but no settlement was reached
by the parties. Respondents then filed a complaint 3 with the Regional Trial Court, Branch 27,
Tandag, Surigao del Sur praying for a grant of easement of right of way over petitioners’ property
with an application for writ of preliminary mandatory injunction.

In their answer, petitioners claimed that there is an alternate route which respondents have been
using although it was long, circuitous and muddy; that the isolation of respondents’ property was due
to their construction of a fence fronting the house of the petitioners; that this made it difficult for
petitioners to maneuver their service jeep, hence, they were constrained to construct a new garage;
that respondents never offered to pay compensation for the right of way; and that they failed to show
that the easement is at the point least prejudicial to the servient estate.

During the hearing, the trial court ordered that the passageway be opened during the day and closed
in the evening during the pendency of the case. Petitioners agreed to open it everyday from five
o’clock in the morning until nine o’clock in the evening and even volunteered their service jeep to be
used in case of any emergency during the rest of the night. Respondents’ application for injunction
was then declared moot and the case was archived to allow the parties to settle the matter amicably.

Nevertheless, petitioners did not abide with their commitment. Thus, on March 5, 1998, respondents
filed with the trial court joint motions to cite petitioners in contempt of court and to revive their
application for preliminary mandatory injunction. On June 8, 1998, the trial court denied the motion
for contempt but granted an injunctive relief, ordering petitioners "to keep open at all times of the day
and night for respondents to pass through in going to Quiñones Street and in returning to their
respective houses, unhampered and unvexed, during the pendency and until the resolution of the
case." Respondents were ordered to post a bond of P5,000.00. On June 16, 1998, the trial court
issued a writ of preliminary mandatory injunction.

After the trial on the merits, or on December 7, 1998, the trial court rendered a Decision in favor of
respondents, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered:

1. Decreeing the establishment of a compulsory easement of right of way in favor of

the plaintiffs over the passageway in question, namely, the 55.5 square meter lot
located at Telaje, Tandag, Surigao del Sur, covered by Tax Declaration No. 02030 in
the name of defendant Rosalinda P. Mejorada, and ordering the defendants to open
and make available the passageway to the plaintiffs and the general public as access
road to Quiñones Street;

2. Ordering the plaintiffs, jointly and severally, to pay the defendants the value of the
55.5 square meter passageway, the exact amount to be determined by a committee
of three assessors, with the Acting Clerk of Court, this Court, or his duly authorized
deputy sheriff as Chairman, and with one member to be proposed by the plaintiffs,
and the other member, by the defendants, the committee to finish the assessment
and submit to this Court its report within fifteen (15) days from their assumption to
duty as such assessors; and

3. Declaring the preliminary mandatory injunction heretofore issued permanent.

No pronouncement as to cost.

IT IS SO ORDERED."

On appeal, the Court of Appeals affirmed the Decision of the trial court.

Hence, the present recourse.

The issue for our resolution is whether respondents are entitled to the easement of right of way on
the property owned by petitioners.

We find for respondents.

Easement has been defined as 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.4 In this
case, the dominant estate is respondents’ property, while the servient estate belongs to petitioners.

Articles 649 and 650 of the Civil Code provide:

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. xxx

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.

A legal or compulsory easement is that which is constituted by law for public use or for private
interest. Pursuant to the above provisions, the owner of an estate may claim a legal or compulsory
right of way only after he has established the existence of these four (4) requisites: (a) the estate is
surrounded by other immovables and is without adequate outlet to a public highway; (b) after
payment of the proper indemnity; (c) the isolation was not due to the proprietor’s own acts; and (d)
the right of way claimed is at a point least prejudicial to the servient estate. 5

Here, these four requisites have been satisfied.

First, as found by the Court of Appeals, there is no other road which respondents could use leading
to Quiñones Street except the passageway on petitioners’ property.

Second, respondents have offered to pay petitioners proper indemnity for the easement of way.

Third, the Court of Appeals likewise found that the isolation of respondents’ property was not due to
their acts.

Fourth, the easement is at the point least prejudicial to petitioners’ property. In fact, the area of the
easement which is 55.5 square meters is located at the corner of petitioners’ landholding, hence,
does not cause them inconvenience in anyway.

Verily, we see no reason to reverse the Decision of the Court of Appeals affirming that of the trial
court.

WHEREFORE, we DENY the petition. The assailed Decision of the Court of Appeals in CA-G.R. CV
No. 62900 is AFFIRMED. Costs against petitioners.

SO ORDERED.

Puno, C.J., Chairperson, Corona, Azcuna, Garcia, JJ., concur.

Footnotes

1 Under Rule 45 of the 1997 Revised Rules of Civil Procedure, as amended.

2Penned by Associate Justice Eugenio S. Labitoria (retired) and concurred in by Associate

Justice Teodoro P. Regino (retired) and Associate Justice Rebecca De Guia-Salvador.

3 Docketed as Civil Case No. 1173, for Right of Way.

4 Article 613, New Civil Code, as amended.

5Sta. Maria v. Court of Appeals, G.R. No. 127549, January 28, 1998, 285 SCRA 351; La
Vista Association, Inc. v. Court of Appeals, et al., G.R. No. 95252, September 5, 1997, 278
SCRA 498, citing Vda. de Baltazar v. Court of Appeals, 245 SCRA 333 (1995), Locsin v.
Climaco, 26 SCRA 816 (1969) and Angela Estate v. CFI of Negros Occidental, 24 SCRA 500
(1968).
G.R. No. 137882 February 04, 2005

SPS. ELIZABETH DE LA CRUZ and ALFREDO DE LA CRUZ, petitioners,

vs.
OLGA RAMISCAL represented by ENRIQUE MENDOZA, Respondent.

DECISION

CHICO-NAZARIO, J.:

This petition for review assails (1) the Resolution1 dated 11 September 1998 of the Court of Appeals
which dismissed the appeal filed by petitioners from the Decision dated 31 July 1997 of the Regional
Trial Court (RTC), Branch 91, Quezon City, for Demolition of Illegally Constructed Structure, and (2)
the Resolution2 dated 05 March 1999 denying the subsequent motion for reconsideration.

The following facts, as recapitulated by the trial court, are undisputed.

Respondent Olga Ramiscal is the registered owner of a parcel of land located at the corner of 18th
Avenue and Boni Serrano Avenue, Murphy, Quezon City, covered by Transfer Certificate of Title
(TCT) No. 300302 of the Register of Deeds for Quezon City. 3 Petitioners SPS. ELIZABETH and
ALFREDO DE LA CRUZ are occupants of a parcel of land, with an area of eighty-five (85) square
meters, located at the back of Ramiscal’s property, and covered by TCT No. RT-56958 (100547) in
the name of Concepcion de la Peña, mother of petitioner Alfredo de la Cruz.4

The subject matter of this case is a 1.10-meter wide by 12.60-meter long strip of land owned by
respondent which is being used by petitioners as their pathway to and from 18th Avenue, the
nearest public highway from their property. Petitioners had enclosed the same with a gate, fence,
and roof.5

In 1976, respondent leased her property, including the building thereon, to Phil. Orient Motors. Phil.
Orient Motors also owned a property adjacent to that of respondent’s. In 1995, Phil. Orient Motors
sold its property to San Benito Realty. After the sale, Engr. Rafael Madrid prepared a relocation
survey and location plan for both contiguous properties of respondent and San Benito Realty. It was
only then that respondent discovered that the aforementioned pathway being occupied by petitioners
is part of her property.6

Through her lawyer, respondent immediately demanded that petitioners demolish the structure
constructed by them on said pathway without her knowledge and consent. As her letter dated 18
February 1995 addressed to petitioners went unheeded, the former referred the matter to
the Barangay for conciliation proceedings, but the parties arrived at no settlement. Hence,
respondent filed this complaint with the RTC in Civil Case No. Q-95-25159, seeking the demolition of
the structure allegedly illegally constructed by petitioners on her property. Respondent asserted in
her complaint that petitioners have an existing right of way to a public highway other than the current
one they are using, which she owns. She prayed for the payment of damages.7

In support of the complaint, respondent presented TCT No. RT-56958 (100547) covering the
property denominated as Lot 1-B in the name of Concepcion de la Peña, mother of petitioner herein
Alfredo de la Cruz. The aforesaid TCT reveals that a portion of Lot 1-B, consisting of 85 square
meters and denominated as Lot 1-B-2, is being occupied by petitioners. To prove that petitioners
have an existing right of way to a public highway other than the pathway which respondent owns, the
latter adduced in evidence a copy of the plan of a subdivision survey for Concepcion de la Peña and
Felicidad Manalo prepared in 1965 and subdivision plan for Concepcion de la Peña prepared in
1990. These documents establish an existing 1.50-meter wide alley, identified as Lot 1-B-1, on the
lot of Concepcion de la Peña, which serves as passageway from the lot being occupied by
petitioners (Lot 1-B-2), to Boni Serrano Avenue.8

On the other hand, petitioners, in their Answer, admitted having used a 1.10-meter wide by 12.60-
meter long strip of land on the northern side of respondent’s property as their pathway to and from
18th Avenue, the nearest public highway from their property, but claimed that such use was with the
knowledge of respondent.9

Petitioners alleged in their Answer that in 1976, respondent initiated the construction on her property
of a motor shop known as Phil. Orient Motors and they, as well as the other occupants of the
property at the back of respondent’s land, opposed the construction of the perimeter wall as it would
enclose and render their property without any adequate ingress and egress. They asked respondent
to give them a 1.50-meter wide and 40.15-meter long easement on the eastern side of her property,
which would be reciprocated with an equivalent 1.50-meter wide easement by the owner of another
adjacent estate. Respondent did not want to give them the easement on the eastern side of her
property, towards Boni Serrano Avenue but, instead, offered to them the said 1.10-meter wide
passageway along the northern side of her property towards 18th Avenue, which offer they had
accepted. 10

Petitioners additionally averred in their Answer that they were made to sign a document stating that
they waived their right to ask for an easement along the eastern side of respondent’s property
towards Boni Serrano Avenue, which document was among those submitted in the application for a
building permit by a certain "Mang Puling,"11 the person in charge of the construction of the motor
shop. That was why, according to petitioners, the perimeter wall on respondent’s property was
constructed at a distance of 1.10-meters offset and away from respondent’s property line to provide
a passageway for them to and from 18th Avenue. They maintained in their Answer that respondent
knew all along of the 1.10-meter pathway and had, in fact, tolerated their use thereof.

On 31 July 1997, the RTC handed down a decision, 12 giving probative weight to the evidence
adduced by respondent. The decretal portion enunciates:

Plaintiff’s claim for moral damages must be denied as no evidence in support thereof was presented
at all by her. Consequently, plaintiff is not entitled to exemplary damages. 13 However, for having been
compelled to file this suit and incur expenses to protect her interest, plaintiff is entitled to an
attorney’s fees in the amount of P10,000.00.

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and
ordering the defendants to demolish the structure built by them along the pathway on the eastern
side of plaintiff’s property towards 18th Avenue, Murphy, Quezon City and to pay [the] plaintiff the
amount of P10,000.00 as and by way of attorney’s fees.

Costs against the defendants.14

The Court of Appeals dismissed the appeal filed by petitioners from the RTC decision for failure to
file brief within the reglementary period. The fallo of the Court of Appeals decision, provides:

WHEREFORE, for failure of the defendants-appellants to file brief within the reglementary period,
the instant appeal is hereby DISMISSED pursuant to Section 1(e), Rule 50 of the 1997 Rules of Civil
Procedure.
The Compliance/Explanation filed by defendants-appellants, submitting the Letter-withdrawal of Atty.
Judito Tadeo addressed to the said defendants-appellants is NOTED.

Let a copy of this Resolution be likewise served on defendants-appellants themselves.15

The motion for reconsideration filed by petitioners met the same fate in the Resolution of the Court of
Appeals dated 05 March 1999.

Petitioners now lay their cause before us through the present petition for review, raising the following
issues:

A. WHETHER OR NOT THE DENIAL OF THE COURT OF APPEALS OF THE PETITIONERS’

MOTION FOR RECONSIDERATION OF ITS RESOLUTION DATED SEPTEMBER 11, 1998 IS
SANCTIONED BY THE RULINGS AND LEGAL PRONOUNCEMENTS OF THE HONORABLE
SUPREME COURT?

B. WHETHER OR NOT THE PETITIONERS ARE NONETHELESS ENTITLED TO A LEGAL

EASEMENT OF RIGHT OF WAY, ASSUMING NO VOLUNTARY RIGHT OF WAY WAS GRANTED
THEM BY THE RESPONDENT?

C. WHETHER OR NOT OPERATIVE EQUITABLE PRINCIPLE OF LACHES TO BAR THE

RESPONDENT FROM DEPRIVING THE PETITIONERS CONTINUED USE OF THE SAID RIGHT
OF WAY?16

The issues rivet on the adjective as well as on the substantive law, specifically: (1) whether or not
the Court Appeals erred in dismissing the appeal filed by petitioners for failure to file appellants’ brief
on time, (2) whether or not petitioners are entitled to a voluntary or legal easement of right of way,
and (3) whether or not respondent is barred by laches from closing the right of way being used by
petitioners.

On the first issue, petitioners assert positively that the petition was filed on time on 30 April 1998,
which is well within the 45-day period reckoned from 17 March 1998, when the secretary of their
former counsel received the notice to file appeal.

Petitioners’ arguments fail to persuade us.

Press earnestly as they would, the evidence on record, nevertheless, evinces contrariety to
petitioners’ assertion that they have beat the 45-day period to file appellants’ brief before the
appellate court. It is clear from the registry return receipt card17 that the Notice to File Brief was
received on 12 March 1998 by one May Tadeo from the Office of Atty. Judito Angelo C. Tadeo,
petitioners’ previous counsel. Thus, on 30 April 1998, when their new counsel entered his
appearance and at the same time filed an appellants’ brief, the 45 days have run out. For failure of
petitioners to file brief within the reglementary period, the Court of Appeals correctly dismissed said
appeal pursuant to Section 1(b), Rule 50 of the 1997 Rules of Civil Procedure.18

Neither can the members of this Court lend credence to petitioners’ contention that the written note
of Atty. Tadeo’s office on the face of the Order reads that the said office received it on 17 March
1998.19

It is a rule generally accepted that when the service is to be made by registered mail, the service is
deemed complete and effective upon actual receipt by the addressee as shown by the registry return
card.20 Thus, between the registry return card and said written note, the former commands more
weight. Not only is the former considered as the official record of the court, but also as such, it is
presumed to be accurate unless proven otherwise, unlike a written note or record of a party, which is
often self-serving and easily fabricated. Further, this error on the part of the secretary of the
petitioners’ former counsel amounts to negligence or incompetence in record-keeping, which is not
an excuse for the delay of filing.

Petitioners’ justification that their former counsel belatedly transmitted said order to them only on 20
March 1998 is not a good reason for departing from the established rule. It was the responsibility of
petitioners and their counsel to devise a system for the receipt of mail intended for them. 21 Rules on
procedure cannot be made to depend on the singular convenience of a party.

Petitioners next take the stand that even assuming the brief was filed late, the Court of Appeals still
erred in dismissing their petition in light of the rulings of this Court allowing delayed appeals on
equitable grounds.22 Indeed, in certain special cases and for compelling causes, the Court has
disregarded similar technical flaws so as to correct an obvious injustice made.23 In this case,
petitioners, however, failed to demonstrate any justifiable reasons or meritorious grounds for a liberal
application of the rules. We must remind petitioners that the right to appeal is not a constitutional,
natural or inherent right - it is a statutory privilege and of statutory origin and, therefore, available
only if granted or provided by statute.24 Thus, it may be exercised only in the manner prescribed by,
and in accordance with, the provisions of the law.25

Anent the second issue, 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. 26 The statutory
basis for this right is Article 613, in connection with Article 619, of the Civil Code, which states:

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.

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.

Did respondent voluntarily accord petitioners a right of way?

We rule in the negative. Petitioners herein failed to show by competent evidence other than their
bare claim that they and their tenants, spouses Manuel and Cecilia Bondoc and Carmelino
Masangkay, entered into an agreement with respondent, through her foreman, Mang Puling, to use
the pathway to 18th Avenue, which would be reciprocated with an equivalent 1.50-meter wide
easement by the owner of another adjacent estate. The hands of this Court are tied from giving
credence to petitioners’ self-serving claim that such right of way was voluntarily given them by
respondent for the following reasons:

First, petitioners were unable to produce any shred of document evidencing such agreement. The
Civil Code is clear that any transaction involving the sale or disposition of real property must be in
writing.27 Thus, the dearth of corroborative evidence opens doubts on the veracity of the naked
assertion of petitioners that indeed the subject easement of right of way was a voluntary grant from
respondent. Second, as admitted by the petitioners, it was only the foreman, Mang Puling, who
talked with them regarding said pathway on the northern side of respondent’s property. Thus,
petitioner Elizabeth de la Cruz testified that she did not talk to respondent regarding the arrangement
proposed to them by Mang Puling despite the fact that she often saw respondent.28 It is, therefore,
foolhardy for petitioners to believe that the alleged foreman of respondent had the authority to bind
the respondent relating to the easement of right of way. Third, their explanation that said Mang
Puling submitted said agreement to the Quezon City Engineer’s Office, in connection with the
application for a building permit but said office could no longer produce a copy thereof, does not
inspire belief. As correctly pointed out by the trial court, 29 petitioners should have requested a
subpoena duces tecum from said court to compel the Quezon City Engineer’s Office to produce said
document or to prove that such document is indeed not available.

The fact that the perimeter wall of the building on respondent’s property was constructed at a
distance of 1.10 meters away from the property line, does not by itself bolster the veracity of
petitioners’ story that there was indeed such an agreement. Further, as noted by the trial court, it
was Atty. Federico R. Onandia, counsel of Phil. Orient Motors, who wrote petitioners on 25 August
1994 advising them that his client would close the pathway along 18th Avenue, thereby implying that
it was Phil. Orient Motors, respondent’s lessee, which tolerated petitioners’ use of said pathway. 30

Likewise futile are petitioners’ attempts to show that they are legally entitled to the aforesaid pathway
under Article 649 of the Civil Code, to wit:

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.

The conferment of a legal easement of right of way under Article 649 is subject to proof of the
following requisites: (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; (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, where the distance from the dominant estate to a public highway
may be the shortest.31 The first three requisites are not obtaining in the instant case.

Contrary to petitioners’ contention, the trial court found from the records that Concepcion de la Peña
had provided petitioners with an adequate ingress and egress towards Boni Serrano Avenue. The
trial court, gave weight to TCT No. RT-56958 (100547) covering the property denominated as Lot 1-
B in the name of Concepcion de la Peña, mother of petitioner herein Alfredo de la Cruz. Said TCT
indicates that a portion of Lot 1-B, consisting of 85 square meters and denominated as Lot 1-B-2, is
the one being occupied by petitioners.32 In this connection, a copy of the plan of a subdivision survey
for Concepcion de la Peña and Felicidad Manalo prepared in 1965 and subdivision plan for
Concepcion de la Peña prepared in 1990 revealed an existing 1.50-meter wide alley, identified as
Lot 1-B-1, on the lot of Concepcion de la Peña, which serves as passageway from the lot being
occupied by petitioners (Lot 1-B-2) to Boni Serrano Avenue.33 During the trial, petitioner Elizabeth de
la Cruz herself admitted knowledge of the existence of the subdivision plan of Lot 1-B prepared for
Concepcion de la Peña by Engr. Julio Cudiamat in 1990. The Subdivision Plan subdivided Lot 1-B
into three portions, namely:

(1) Lot 1-B-1, which is an existing alley, consisting of 59.60 square meters, towards Boni Serrano
Avenue;

(2) Lot 1-B-2, consisting of 85.20 square meters, which is being occupied by petitioners; and
(3) Lot 1-B-3, consisting also of 85.20 square meters, which is being occupied by the sister of
petitioner Alfredo dela Cruz.34

From petitioner Elizabeth de la Cruz’s own admission, Lot 1-B-1 was intended by the owner,
Concepcion de la Peña, to serve as an access to a public highway for the occupants of the interior
portion of her property.35 Inasmuch as petitioners have an adequate outlet to a public highway (Boni
Serrano Avenue), they have no right to insist on using a portion of respondent’s property as pathway
towards 18th Avenue and for which no indemnity was being paid by them.

Petitioner Elizabeth de la Cruz claimed before the trial court that although there was indeed a portion
of land allotted by Concepcion de la Peña to serve as their ingress and egress to Boni Serrano
Avenue, petitioners can no longer use the same because de la Peña had constructed houses on it.
As found by the trial court, the isolation of petitioners’ property was due to the acts of Concepcion de
la Peña, who is required by law to grant a right of way to the occupants of her property. In the trial
court’s rationale:

…Article 649 of the Civil Code provides that the easement of right of way is not compulsory if the
isolation of the immovable is due to the proprietor’s own acts. To allow defendants access to
plaintiff’s property towards 18th Avenue simply because it is a shorter route to a public highway,
despite the fact that a road right of way, which is even wider, although longer, was in fact provided
for them by Concepcion de la Peña towards Boni Serrano Avenue would ignore what jurisprudence
has consistently maintained through the years regarding an easement of right of way, that "mere
convenience for the dominant estate is not enough to serve as its basis. To justify the imposition of
this servitude, there must be a real, not a fictitious or artificial necessity for it."… In Francisco vs.
Intermediate Appellate Court, 177 SCRA 527, it was likewise held that a person who had been
granted an access to the public highway through an adjacent estate cannot claim a similar easement
in an alternative location if such existing easement was rendered unusable by the owner’s own act of
isolating his property from a public highway, such as what Concepcion de la Peña allegedly did to
her property by constructing houses on the 1.50 meter wide alley leading to Boni Serrano Avenue.
And, if it were true that defendants had already bought Lot 1-B-2, the portion occupied by them, from
Concepcion de la Peña, then the latter is obliged to grant defendants a right of way without
indemnity.36

We hasten to add that under the above-quoted Article 649 of the Civil Code, it is the owner, or any
person who by virtue of a real right may cultivate or use any immovable surrounded by other
immovable pertaining to other persons, who is entitled to demand a right of way through the
neighboring estates. In this case, petitioners fell short of proving that they are the owners of the
supposed dominant estate. Nor were they able to prove that they possess a real right to use such
property. The petitioners claim to have acquired their property, denominated as Lot 1-B-2, from
Concepcion de la Peña, mother of defendant Alfredo de la Cruz, who owns Lot 1-B-3, an adjacent
lot. However, as earlier noted, the trial court found that the title to both lots is still registered in the
name of Concepcion de la Peña under TCT No. RT-56958 (100547).37 Neither were petitioners able
to produce the Deed of Sale evidencing their alleged purchase of the property from de la Peña.
Hence, by the bulk of evidence, de la Peña, not petitioners, is the real party-in-interest to claim a
right of way although, as explained earlier, any action to demand a right of way from de la Peña’s
part will not lie inasmuch as by her own acts of building houses in the area allotted for a pathway in
her property, she had caused the isolation of her property from any access to a public highway.

On the third issue, petitioners cannot find sanctuary in the equitable principle of laches under the
contention that by sleeping on her right to reclaim the pathway after almost twenty years, respondent
has, in effect, waived such right over the same. 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.38

The essential elements of laches 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 complainant’s rights
after he had knowledge of defendant’s 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.39

The second and third elements, i.e., knowledge of defendant's acts and delay in the filing of such
suit are certainly lacking here. As borne by the records, it was only in 1995 that respondent found
out that the pathway being used by petitioners was part of her property when a relocation survey and
location plan of her property and the adjacent land bought by San Benito Realty were prepared. 40 She
immediately demanded petitioners to demolish the structure illegally constructed by them on her
property without her knowledge and consent. As her letter dated 18 February 1995 addressed to
petitioners fell on deaf ears, and as no settlement was arrived at by the parties at
the Barangay level, respondent seasonably filed her complaint with the RTC in the same year. 41

Respondent, in her Comment,42 brings the Court’s attention to petitioners’ conversion of the pathway,
subject matter of this case, into a canteen and videoke bar, as shown by the pictures 43 showing the
property bearing the signage, "FRED’S44 CANTEEN/VIDEOKE KAMBINGAN." Respondent, likewise,
complains in her Comment about the structures installed by petitioners that encroached on
respondent’s property line as a result of the commercial activities by petitioners on the disputed
property. Petitioners have implicitly admitted this conversion of the property’s use by their silence on
the matter in their Reply45 and Memorandum.46 Such conversion is a telltale sign of petitioners’ veiled
pecuniary interest in asserting a right over the litigated property under the pretext of an innocuous
claim for a right of way.

Viewed from all angles, from the facts and the law, the Court finds no redeeming value in petitioners’
asseverations that merit the reversal of the assailed resolutions.

WHEREFORE, the instant petition is DENIED. The Resolutions dated 11 September 1998 and 5
March 1999 of the Court of Appeals in CA-G.R. SP No. 68216 are AFFIRMED. The Decision dated
31 July 1997 of the Regional Trial Court is likewise UPHELD. Costs against petitioners.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

Footnotes

1
Rollo, pp. 29-31. Penned by Associate Justice Quirino D. Abad Santos, Jr., with Associate
Justices Roberto A. Barrios and Mariano M. Umali, concurring.

2
Rollo, pp. 33-34.
3
Rollo, p. 17.

4
Rollo, p. 19.

5
Rollo, p. 19.

6
Rollo, pp. 18-19.

7
Rollo, p. 17.

8
Rollo, p. 19.

9
Rollo, p. 17.

10
Rollo, pp. 19-20.

11
Also "Poleng" in other parts of the records.

12
Penned by then Judge Marina L. Buzon, now Associate Justice of the Court of Appeals.

13
Article 2234, Civil Code.

14
Rollo, p. 26.

15
Rollo, p. 31.

16
Rollo, p. 9.

17
CA Rollo, p. 15.

SECTION 1. Grounds for dismissal of appeal. – An appeal may be dismissed by the Court
18

of Appeals, on its own motion or on that of the appellee, on the following grounds:

(b) Failure to file the notice of appeal or the record on appeal within the period fixed by these
Rules.…

19
Rollo, p. 28.

20
Dela Cruz, et al. v. Dela Cruz, et al., G.R. No. L-48697, 15 April 1988, 160 SCRA 361.

21
gr_ Sps. Aguilar, et al. v. CA, et al., G.R. No. 120972, 19 July 1999, 310 SCRA 393.

22
Rollo, p. 10.

23
gr_ NYK International v. NLRC, G.R. No. 146267, 17 February 2003, 397 SCRA 607.

24
gr_ Republic v. Court of Appeals, G.R. No. 132425, 31 August 1999, 313 SCRA 376.

gr_ Antonio v. COMELEC, G.R. No. 135869, 22 September 1999, 315 SCRA 62;
25

gr_ Lamzon v. NLRC, G.R. No. 113600, 28 May 1999, 307 SCRA 665.
 gr_ Bogo-Medellin Milling Co., Inc. v. Court of Appeals, G.R. No. 124699, 31 July 2003, 407
26

SCRA 518.

27
Art. 1358. The following must appear in a public document:

(1) Acts and contracts which have for their object the creation, transmission, modification or
extinguishment of real rights over immovable property; sales of real property or of an interest
therein are governed by Articles 1403, No.2 and 1405; . . . .

28
Rollo, p. 20.

29
Rollo, p. 21.

30
Rollo, p. 21.

31
gr_ Villanueva v. Velasco, G.R. No. 130845, 27 November 2000, 346 SCRA 99.

32
Rollo, p. 19.

33
Rollo, p. 19.

34
Rollo, p. 23.

35
Rollo, p. 23.

36
Rollo, pp. 23-24.

37
Rollo, p. 22.

38
gr_ Españo v. Court of Appeals, G.R. No. 123823, 17 February 1997, 268 SCRA 511.

39
gr_ Avisado v. Rumbaua, G.R. No. 137306, 12 March 2001, 354 SCRA 245.

40
Rollo, p. 19.

41
Rollo, p. 17.

42
Rollo, pp. 67-79.

43
Rollo, pp. 81-82.

44
Purportedly referring to petitioner Alfredo de la Cruz.

45
Rollo, pp. 88-93.

46
Rollo, pp. 105-115.
 [G.R. NO. 175510 : July 28, 2008]

SPOUSES VICTOR VALDEZ AND JOCELYN VALDEZ, represented by their

Attorney-In-Fact, VIRGILIO VALDEZ, Petitioners, v. SPOUSES FRANCISCO
TABISULA AND CARIDAD TABISULA, Respondents.

DECISION

CARPIO MORALES, J.:

Petitioner-spouses Victor and Jocelyn Valdez purchased via a January 11, 1993 Deed of
Absolute Sale1 (the deed) from respondent-spouses Francisco Tabisula and Caridad
Tabisula a 200 square meter (sq.m.) portion (the subject property) of a 380 sq. m.
parcel of land located in San Fernando, La Union, which 380 sq.m. parcel of land is
more particularly described in the deed as follows:

A parcel of land classified as residential lot, bounded on the North by Lot No. 25569, on
the East, by Lot No. 247, 251, on the South, by a Creek and on the West, by Lot No.
223-A, declared under Tax Decl. No. 52820, with an areaof380 square meters, more or
less, and assessed at P 17100.00 for the current year. It is not registered under Act
496 nor under the Spanish Mortgage Law. (Emphasis and underscoring supplied) cralawlibrary

The pertinent portions of the deed read:

xxx

That for and in consideration of the sum of SEVENTY THOUSAND (P70,000.00) PESOS,
Philippine Currencyp [sic] paid to us at our entire satisfaction by spouses VICTOR and
JOECELYN [sic] VALDEZ, both of legal age, Filipinos and residents of 148 P. Burgos St.,
San Fernando, La Union, receipt of which is hereby acknowledged, do hereby SELL,
CONVEY and TRANSFER by way of absolute sale unto the said spouses Victor and
Joecelyn Valdez, their heirs and assigns, the TWO HUNDRED (200) SQUARE METERS,
EASTERN PORTION of the parcel of land above-described, free from all liens and
encumbrances.

xxx

That now and hereinafter, said VENDEE-SPOUSES VICTOR and JOECELYN [sic] VALDEZ
shall be the absolute owners of the said 200 sq. meters, eastern portion and that we
shall warrant and forever defend their ownership of the same against the claims of all
persons whomsoever; they shall be provided a 2 1/2 meters [sic] wide road right-of-
way on the western side of their lot but which is not included in this sale.

x x x.x (Emphasis and underscoring supplied) cralawlibrary

Respondents subsequently built a concrete wall on the western side of the subject
property.2 Believing that that side is the intended road right of way mentioned in the
deed, petitioners, through their representative, reported the matter to the barangay for
mediation and conciliation. Respondents failed to attend the conferences scheduled by
the barangay, however, drawing petitioners to file in April 1999 or more than six years
after the execution of the deed a Complaint for Specific Performance with
Damages3 against respondents before the Regional Trial Court (RTC) of San Fernando
City, La Union.

In their complaint, petitioners alleged that they purchased the subject property on the
strength of respondents' assurance of providing them a road right of way. They thus
prayed that respondents be ordered to provide the subject property with a 2' -meter
wide easement and to remove the concrete wall blocking the same.4

Respondents, in their Answer with Compulsory Counterclaim (for damages and

attorney's fees),5 averred that the 2 '-meter easement should be taken from the
western portion of the subject property and not from theirs;6 and petitioners and their
family are also the owners of two properties adjoining the subject property, which
adjoining properties have access to two public roads or highways - the bigger one which
adjoins P. Burgos St. on the north, and the smaller one which abuts an existing
barangay road on the north.7

Respondents further averred that they could not have agreed to providing petitioners
an easement "on the western side of their lot" as there exists a two-storey concrete
house on their lot where the supposed easement is to be located, which was erected
long before the subject property was sold to petitioners.8 In support of this claim,
respondents submitted a February 20, 2003 letter from the City Engineer's Office.9

Branch 26 of the RTC of San Fernando dismissed petitioners' complaint and granted
respondents' Counterclaim by Decision10 of March 18, 2005, the dispositive portion of
which reads:

WHEREFORE, and in view of all the foregoing, judgment is hereby rendered finding the
defendants as against the plaintiffs and hereby orders the Complaint dismissed for
being unmeritorious and plaintiffs are hereby ordered to pay the defendants, the
following:

1) P100,000.00 as moral damages;

2) P50,000.00 as exemplary damages;

3) P50,000.00 as attorney's fees;

4) P30,000.00 as expenses of litigation; and

5) To pay the costs.

SO ORDERED.11 (Underscoring supplied) cralawlibrary

On appeal by petitioners, the Court of Appeals, by Decision of May 29, 2006,12 affirmed
that of the trial court, it holding that the deed only conveyed ownership of the subject
property to petitioners, and that the reference therein to an easement in favor of
petitioners is not a definite grant-basis of a voluntary easement of right of way.13
The appellate court went on to hold that petitioners are neither entitled to a legal or
compulsory easement of right of way as they failed to present circumstances justifying
their entitlement to it under Article 649 of the Civil Code.14

Petitioners' motion for reconsideration15 having been denied by the Court of Appeals by
Resolution of November 15, 2006, they filed the present Petition for Review
on Certiorari faulting the trial [sic] court

I. . . . IN RULING THAT THE RIGHT OF WAY IS NOT PART OF THE ABSOLUTE DEED OF
SALE DATED JANUARY 11, 1993;

II. . . . IN RULING THAT THE PROVISION OF THE ABSOLUTE DEED OF SALE GRANTING
A RIGHT OF WAY IS VAGUE AND OBSCURE;

III. . . . IN AWARDING MORAL AND EXEMPLARY DAMAGES TO THE

RESPONDENTS.16 (Underscoring supplied) cralawlibrary

An easement or servitude is "a real right constituted on another's property, corporeal

and immovable, by virtue of which the owner of the same has to abstain from doing or
to allow somebody else to do something on his property for the benefit of another thing
or person."17 The statutory basis of this right is Article 613 of the Civil Code which
reads:

Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for

the benefit of another immovable belonging to a different owner.

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 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 - meters wide road right-of-way on the western side of their lot but which
is not included in this sale."

Article 1358 of the Civil Code provides that any transaction involving the sale or
disposition of real property must be in writing.18 The stipulation harped upon by
petitioners that they "shall be provided a 2 - 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 wayis "not included in this
sale" could only mean that the parties would have to enter into a separate and distinct
agreement for the purpose.19 The use of the word "shall," which is imperative or
mandatory in its ordinary signification, should be construed as merely permissive
where, as in the case at bar, no public benefit or private right requires it to be given an
imperative meaning.20

Besides, a document stipulating a voluntary easement must be recorded in the Registry

of Property in order not to prejudice third parties. So Articles 708 and 709 of the Civil
Code call for, viz:

Art. 708. The Registry of Property has for its object the inscription or annotation of acts
and contracts relating to the ownership and other rights over immovable property.

Art. 709. The titles of ownership, or of other rights over immovable property, which are
not duly inscribed or annotated in the Registry of Property shall not prejudice third
persons.

Petitioners are neither entitled to a legal or compulsory easement of right of way. For to
be entitled to such kind of easement, the preconditions under Articles 649 and 650 of
the Civil Code must be established, viz:

Art. 649. The owner, or any person who by virtue of a real right may cultivate or use
any immovable, which is surrounded by other immovables pertaining to other persons,
and without adequate outlet to a public highway, is entitled to demand a right of way
through the neighboring estates, after payment of the proper indemnity.

xxx

This easement is not compulsory if the isolation of the immovable is due to the
proprietor's own acts. (Underscoring supplied) cralawlibrary

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) cralawlibrary

Thus, to be conferred a legal easement of right of way under Article 649, the following
requisites must be complied with: (1) the property is surrounded by other immovables
and has no adequate outlet to a public highway; (2) proper indemnity must be paid; (3)
the isolation is not the result of the owner of the dominant estate's own acts; (4) the
right of way claimed is at the point least prejudicial to the servient estate; and (5) to
the extent consistent with the foregoing rule, the distance from the dominant estate to
a public highway may be the shortest.21 The onus of proving the existence of these
prerequisites lies on the owner of the dominant estate,22 herein petitioners.

As found, however, by the trial court, which is supported by the Sketch23 (Exhibit "B";
Exhibit "1") of the location of the lots of the parties and those adjoining them,
a common evidence of the parties, petitioners and their family are also the owners of
two properties adjoining the subject property which have access to two public roads or
highways.24
Since petitioners then have more than adequate passage to two public roads, they have
no right to demand the grant by respondents of an easement on the "western side of
[respondents'] lot."

It may not be amiss to note at this juncture that at the time the deed was executed in
1993, the barangay road-Exhibit "1-G," by which petitioners could access Burgos
Street-Exhibit "1-F," was not yet in existence; and that the Interior Street-Exhibit "1-
H," which petitioners via this case seek access to with a right of way, was still a
creek,25 as reflected in the earlier-quoted particular description of respondents' parcel
of land from which the subject property originally formed part.

Respecting the grant of damages in favor of respondents by the trial court which was
affirmed by the appellate court, the Court finds the same baseless. chanrobles virtual law library

To merit an award of moral damages, there must be proof of moral suffering, mental
anguish, fright and the like. It is not enough that one suffers sleepless nights, mental
anguish, serious anxiety as a result of the actuation of the other party.26 Invariably,
such actuation must be shown by clear and convincing evidence27 to have been willfully
done in bad faith or with ill-motive.

In respondents' case, they predicated their Counterclaim for damages on general

allegations of sickness, humiliation and embarrassment, without establishing bad faith,
fraud or ill-motive on petitioners' part.28

More importantly, respondents are precluded from filing any counterclaim in light of
Article 199 of Rule XXVI of the Rules and Regulations Implementing the Local
Government Code of 1991 reading:

xxx

ARTICLE 199. Penalty for Refusal or Failure of Any Party or Witness to Appear before
the Lupon or Pangkat. - Refusal or willful failure of any party or witness to appear
before the lupon or pangkat in compliance with summons issued pursuant to this Rule
may be punished by the city or municipal court as for indirect contempt of court upon
application filed therewith by the lupon chairman, the pangkat chairman, or by any of
the contending parties. Such refusal or willful failure to appear shall be reflected in the
records of the lupon secretary or in the minutes of the pangkat secretary and shall bar
the complainant who fails to appear, from seeking judicial recourse for the same course
of action, and the respondent who refuses to appear, from filing any counterclaim
arising out of, or necessarily connected with the complaint.

x x x x (Emphasis and underscoring supplied) cralawlibrary

While respondent Caridad Tabisula claimed that she always appeared, when
summoned, before the barangay lupon,29 the following Certificate to File Action30 belies
the claim.

xxx
This is to certify that respondents failed to appear for (2) Mediation Proceeding before
our Punong Barangay thus the corresponding complaint may now be filed in court.

Issued this 24th day of November 1998 at the Multi Purpose Hall, Barangay 1 City of
San Fernando (LU).

x x x x (Underscoring supplied)cralawlibrary

The award for moral damages being thus baseless, that for exemplary damages must
too be baseless.

As for the award of attorney's fees and expenses of litigation, respondents have not
shown their entitlement thereto in accordance with Article 2208 of the Civil Code.

WHEREFORE, the May 29, 2006 Decision and November 15, 2006 Resolution of the
Court of Appeals are MODIFIED in that the grant of the Counterclaim of respondents,
Spouses Francisco Tabisula and Caridad Tabisula, is reversed and set aside. In all other
respects, the challenged decision is AFFIRMED.

Costs against petitioners.

SO ORDERED.
 [G.R. No. 75905. October 12, 1987.]

REMIGIO O. RAMOS, SR., Petitioner, v. GATCHALIAN REALTY, INC., EDUARDO

ASPREC, ENELDA ASPREC, ERNESTO ASPREC, and COURT OF
APPEALS, Respondents.

DECISION

GUTIERREZ, JR., J.:

In this petition for review on certiorari, the petitioner assails the decision of the Court of
Appeals dated August 29, 1986 which affirmed the November 14, 1984 order of the
Regional Trial Court, Branch CXI at Pasay City dismissing the petitioner’s civil action for
a right of way with prayer for preliminary injunction. cralawnad

Petitioner Ramos is the owner of a house and lot containing an area of 901 square
meters covered by Transfer Certificate of Title No. 14927 situated at Barrio San
Dionisio, Parañaque, Metro Manila. The lot was acquired by the petitioner from Sobrina
Rodriguez Lombos Subdivision. In the subdivision survey plan of Lot 4133-G, (LRC)
PSD-172544, the lot is more particularly described as Lot 4133-G-11 (Exhibits 1 and 1-
A"). Two road lots abut petitioner’s property namely lot 4133-G-12 with an area of
2,160 square meters clearly appearing as a proposed road in the Lombos subdivision
plan and Lot 4135 of the Parañaque Cadastre now known as Palanyag Road but more
commonly referred to as Gatchalian Avenue. chanrobles law library : red

Respondents Asprec own Lot 4135. Gatchalian Avenue is alongside Lot 4135.
Respondent Gatchalian Realty was granted the road right of way and drainage along Lot
4135 to service the Gatchalian and Asprec subdivisions, by the respondent Asprecs.

The records of this case disclose that on April 30, 1981, a complaint for an easement of
a right of way with preliminary mandatory injunction was filed by Ramos against the
private respondents. Among the allegations in the complaint are: jgc:chanrobles.com.ph

". . . that he (referring to the petitioner) constructed his house at 27 Gatchalian Avenue
(also known as Palanyag Road), Parañaque, and has since resided therein with his
family from 1977 up to the present; that during construction of the house, Gatchalian
Realty, Inc. built a 7-8 feet high concrete wall right infront of appellant’s premises,
blocking his entrance/exit to Gatchalian Road, the nearest, most convenient and
adequate entrance/exit to the public road or highway, formerly Sucat Road but now
known as Dr. A. Santos Avenue, Parañaque; that this house and lot is only about 100
meters from Sucat Road passing thru Gatchalian Avenue; that prior to this, appellant
and his counsel addressed separate request/demand letters (Exh. A and Annex B) to
defendant company to allow him to exercise a right of way on the subject premises;
that in September 1977, a meeting/conference was held between appellant and his
counsel on one hand and Mr. Roberto Gatchalian and counsel on the other, during
which defendant Corporation manifested its conformity to grant appellant the requested
right of way upon payment of proper indemnity, with the request that appellant inform
defendants Asprec of their aforesaid agreement; that consequently, appellant wrote Mr.
Cleto Asprec on September 16, 1977 (Exh. D); that with the construction of the 7-8
feet concrete wall appellant and his family have been constrained to pass through the
back portion of their lot bounded by other lots belonging to different owners, which is
grassy and cogonal as temporary ingress/egress with great inconvenience and
hardship, and this becomes all the more pronounced during the rainy season due to
flood and mud (Exhs. B-1, B-1-A, B-2; B-2-A, B-3, B-3-A, B-3-B and B-4); and, lastly,
that the aforesaid concrete wall is dangerously leaning towards appellant’s premises
posing great danger or hazard." (Court of Appeals Decision, p. 3, Rollo, p. 39).

On May 20, 1981, the respondent corporation filed a motion to dismiss on grounds of
lack of cause of action and bar by prior judgment alleging that the complaint was
merely a reproduction of that filed on October 26, 1972 in Civil Case No. 5930-P which
was dismissed on October 30, 1980 for failure to prosecute within a reasonable length
of time. Respondents Asprec later joined the respondent company in its motion to
dismiss and adopted the grounds and arguments stated therein.

On November 20, 1981, after the petitioner had filed his opposition to the above
motions, the lower court issued its order denying the motion to dismiss on the ground
that the order dismissing the earlier case was not an adjudication on the merits.

On November 26, 1981, the petitioner filed an urgent ex-parte motion for the issuance
of a preliminary mandatory injunction as well as a preliminary prohibitory injunction.
On the same day, the lower court set the motion for hearing on December 1, 1981,
later reset to December 10, 1981, and ordered that: jgc:chanrobles.com.ph

"In the meantime, pending determination of the application or the merits and in order
that the reliefs sought therein may not be rendered moot and academic, the defendants
and all persons acting upon their orders are hereby temporarily enjoined from building,
constructing and/or erecting a wall, fence or any enclosure adjoining or abutting
plaintiff’s premises and/or from restraining, preventing or prohibiting the plaintiff, his
family or persons residing in his premises as well as any person/s who may have any
dealing or business with them from using, passing and/or traversing the said Gatchalian
Avenue in going to or returning from the plaintiff’s premises and in going to or
returning from Sucat Road via Gatchalian Avenue, until further orders from this Court.
(Order dated November 26, 1981, Records, p. 66).

On December 1, 1981, Gatchalian Realty filed its answer and averred, among others,
that:chanrob1es virtual 1aw library

x x x

"Defendant Corporation has never entered into a verbal agreement with plaintiff to
grant the latter a road right of way;

x x x
"The so-called Gatchalian Avenue or Palanyag Road is not a public road but a private
street established and constructed by the defendant Corporation intended for the sole
and exclusive use of its residents and lot buyers of its subdivisions, as well as of the
subdivisions owned and operated by the various naked owners of the different portions
constituting the entire length and breadth of said street;

"If plaintiff’s property referred to in the complaint is Lot No. 4133-G-11 (LRC) Psd-
229001 (sic), then a grant of a right of way to plaintiff is not a legal necessity, because
such lot has an existing road right of way, more particularly Lot 4133-G-12, towards Dr.
Arcadio Santos Avenue (Sukat Road);

x x x

"The opening of Gatchalian Avenue to the property of plaintiff will unduly cause great
prejudice to defendant Corporation as it can no longer effectively regulate the use of
the said private road; . . .

"Assuming, though not admitting, that plaintiff may be granted a right of way, still the
reasonable compensation for such grant would be some P800,000.00, as such portion
of Gatchalian Avenue consists of some 2,000 square meters of prime and valuable
property which could readily command a market value of P400.00 per square meter;
moreover, plaintiff still has to shoulder his proportionate share of the expenses and
upkeep of such street and the real estate taxes imposed thereon." (Answer of
Gatchalian Realty, Inc., Records, pp. 81-82).

On December 2, 1981, respondent Asprec filed their answer which basically contained
the same averments as that of the realty company.

At the hearing of the petitioner’s application for issuance of a writ of preliminary

injunction to compel the private respondents to remove the wall constructed right in
front of the petitioner’s premises barring him access to Gatchalian Avenue, both parties
presented oral and documentary evidence to support their respective positions. After
the hearing, the lower court issued the following order: jgc:chanrobles.com.ph

"Plaintiff is given fifteen (15) days to file a memorandum and the defendant is given
another fifteen days from receipt thereof to file a reply, after which the case shall be
deemed submitted for resolution. So ordered." (TSN, December 10, 1981, p. 57)

After compliance by both parties with the above order, the lower court, on July 9, 1982,
rendered a decision the dispositive part of which reads: jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants ordering the latter to grant the former a right of way through Palanyag
Road to and from Don Arcadio Santos Avenue and to and from this residence, upon
payment by the plaintiff to the defendants Asprecs the sum of P5,000 as indemnity
therefor and under the following terms and conditions to wit: (1) the easement created
shall be only in favor of the plaintiff, members of his family and person or persons
dealing with them; and (2) the opening to be created through the concrete wall
separating plaintiff’s residence and Palanyag Road shall only be three (3) meters wide
and shall be provided by an iron gate by the plaintiff all at the expense of the plaintiff.
Without pronouncement as to costs and damages." (Rollo, p. 30)

Thereafter, the respondent company filed a motion to set aside and/or reconsider the
lower court’s decision for being premature since only the application for the writ of
injunction was heard and submitted for resolution and not the entire case. Respondents
Asprec, likewise, filed a motion for reconsideration mainly on the ground that the lower
court’s grant of a right of way through Gatchalian Avenue in petitioner’s favor would be
in derogation of the "Contract of Easement of Road Right-of-Way and of Drainage"
executed between them and Gatchalian Realty. chanrobles virtual lawlibra ry

In his opposition to both motions, the petitioner argued that on the basis of the
transcript of stenographic notes taken on December 10, 1981, it was clear that both
parties submitted the entire case for resolution inasmuch as the pieces of evidence for
the injunction and for the main case were the same and there was nothing left to be
presented. Thus, in effect, the petitioner contended that the lower court’s decision
dated July 9, 1982 was an adjudication on the merits.

On July 8, 1983, the lower court under a new judge by virtue of the reorganization of
the judiciary, issued an order setting aside and vacating its previous decision dated July
9, 1982 on the ground that the same was "rendered prematurely as the defendants had
not presented their evidence on the main evidence." cralaw virtua1aw library

After the petitioner had rested his case, the respondent company filed a motion to
dismiss based on the insufficiency of the evidence adduced by the petitioner. An
opposition to said motion, was, thereafter, filed by the petitioner.

On November 14, 1984, the lower court, acting on the respondent company’s motion to
dismiss, issued an order with the following tenor: jgc:chanrobles.com.ph

"WHEREFORE, finding the motion to dismiss of defendant corporation Gatchalian Realty,

Inc. to be impressed with merit, the same is hereby granted. For insufficiency of
evidence, plaintiff’s complaint is hereby dismissed, without pronouncement as to costs."
(Rollo, p. 34)

The Court of Appeals on August 29, 1986, found that the petitioner failed to establish
the existence of the preconditions in order that he could legally be entitled to an
easement of a right of way. It affirmed the lower court’s order dated November 14,
1984 in all respects, with costs against the petitioner.

Hence, this petition which presents the following assignment of errors: chanrob1es virtual 1aw library

PUBLIC RESPONDENT ERRED IN AFFIRMING IN TOTO THE ORDER OF DISMISSAL OF

THE TRIAL COURT IN ALL RESPECTS WITH COSTS AGAINST THE PETITIONER;

II
PUBLIC RESPONDENT ERRED IN ITS DECISION TO THE EFFECT THAT PETITIONER HAS
NOT SUFFICIENTLY MET THE REQUIREMENTS OF THE LAW AND IN FAILING TO PROVE
HIS RIGHT OF WAY THROUGH GATCHALIAN AVENUE OR PALANYAG ROAD AGAINST
THE RESPONDENTS HEREIN;

III

PUBLIC RESPONDENT ERRED IN FAILING TO SET ASIDE THE ORDER OF THE TRIAL
COURT, AND NOT ADOPTING THE DECISION OF THE TRIAL COURT DATED JULY 9,
1982 GRANTING TO PETITIONER A RIGHT OF WAY IN THE SUBJECT PREMISES. (Rollo,
pp. 14-15).

These assigned errors center on the issue of whether or not the petitioner has
successfully shown that all the requisites necessary for the grant of an easement of a
right of way in his favor are present.

An easement or servitude is an encumbrance imposed upon an immovable for the

benefit of another immovable belonging to a different owner as defined in Article 613 of
the Civil Code. It is established either by law, in which case it is called legal, or by the
will of the parties, in which event it is a voluntary easement. (See Article 619, Civil
Code of the Philippines; City of Manila v. Entote, 57 SCRA 497, 503).

Since there is no agreement between the contending parties in this case granting a
right of way by one in favor of the other, the establishment of a voluntary easement
between the petitioner and the respondent company and/or the other private
respondents is ruled out. What is left to examine is whether or not the petitioner is
entitled to a legal or compulsory easement of a right of way.

In the case of Bacolod-Murcia Milling Company, Inc. v. Capitol Subdivision, Inc., Et. Al.
(17 SCRA 731, 735-6), we held that: jgc:chanrobles.com.ph

". . . the Central had to rely strictly on its being entitled to a compulsory servitude of
right of way, under the Civil Code, and it could not claim any such servitude without
first establishing the preconditions for its grant fixed by Articles 649 and 650 of the Civil
Code of the Philippines: chanrob1es virtual 1aw library

(1) That it is surrounded by other immovables and has no adequate outlet to a public
highway (Art. 649, par. 1);

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

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

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

"By express provision of law, therefore, a compulsory right of way cannot be obtained
unless the four requisites enumerated are first shown to exist, and the burden of proof
to show their existence was on the Central." (See also Angela Estate, Inc. v. Court of
First Instance of Negros Occidental, 24 SCRA 500, 510)

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

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

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

Once again, we apply the rule that findings of facts of the Court of Appeals are binding
on the Supreme Court and will not be overturned when supported by the evidence on
record save in the known exceptions such as gross misappreciation of the evidence or
misapprehension of facts. (See Community Savings and Loan Association, Inc. v. Court
of Appeals, Et Al., G.R. No. 75786, promulgated on August 31, 1987; Regalario v.
Northwest Finance Corporation, 117 SCRA 45; Agton v. Court of Appeals, 113 SCRA
322).chanrobles virtual lawlibrary

WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED for lack of
merit. The questioned decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Fernan (Chairman), Feliciano, Bidin and Cortes, JJ., concur.

G.R. No. L-66520 August 30, 1988

EDUARDO C. TAÑEDO, petitioner,

vs.
HON. JUANITO A. BERNAD, Presiding Judge of the Regional Trial Court, 7th Judicial Region,
Branch XXI, Cebu City; Spouses ROMEO SIM and PACITA S. SIM; and Spouses ANTONIO
CARDENAS and MAE LINDA CARDENAS, respondents.

Numeriano F. Capangpangan for petitioner.

Meinrado P. Parades for private respondents.

PADILLA, J.:

This is a petition for review on certiorari of the Order issued by the respondent judge, Hon. Juanita A. Bernad on 5 December 1983, which
dismissed the complaint for legal redemption filed by the petitioner in Civil Case No. CEB-994 of the Regional Trial Court of Cebu, and the
Order of the same respondent judge, dated 20 January 1984, which denied petitioner's motion for reconsideration.

The facts, in brief, are as follows:

The private respondent Antonio Cardenas was the owner of two (2) contiguous parcels of land
situated in Cebu City which he had inherited from Lourdes Cardenas and more particularly known as
Lot 7501-A, with an area of 140 square meters and Lot 7501-B, with an area of 612 square meters.
On Lot 7501-A is constructed an apartment building, while the improvements on Lot 7501-B consist
of one four-door apartment of concrete and strong materials; one two-storey house of strong
materials; a bodega of strong materials; and a septic tank for the common use of the occupants of
Lots 7501-A and 7501-B. A small portion of the apartment building on Lot 7501-A also stands on Lot
7501-B.

On 5 February 1982, said Antonio Cardenas sold Lot 7501-A to herein petitioner Eduardo C.
Tañedo. 1

Antonio Cardenas, on that same day, also mortgaged Lot 7501-B to said Eduardo C. Tañedo as a
security for the payment of a loan in the amount of P10,000.00. 2

Antonio Cardenas further agreed that he would sell Lot 7501-B only to Eduardo Tañedo in case he
should decide to sell it, as the septic tank in Lot 7501-B services Lot 7501-A and the apartment
building on Lot 7501-A has a part standing on Lot 7501-B. This was confirmed in a letter, dated 26
February 1982, wherein Antonio Cardenas asked Tañedo not to deduct the mortgage loan of
P10,000.00 from the purchase price of Lot 7501-A "because as we have previously agreed, I will sell
to you Lot 7501-B."3

Antonio Cardenas, however, sold Lot 7501-B to the herein respondent spouses Romeo and Pacita
Sim. 4 Upon learning of the sale, Eduardo Tañedo offered to redeem the property from Romeo Sim.
But the latter refused. Instead, Romeo Sim blocked the sewage pipe connecting the building of
Eduardo Tañedo built on Lot 7501-A, to the septic tank in Lot 7501-B. He also asked Tañedo to
remove that portion of his building enroaching on Lot 7501-B. As a result, Eduardo Tañedo, invoking
the provisions of Art. 1622 of the Civil Code, filed an action for legal redemption and damages, with
a prayer for the issuance of a writ of preliminary injunction, before the Regional Trial Court of Cebu,
docketed therein as Civil Case No. CEB-994, against the spouses Romeo and Pacita Sim, Antonio
Cardenas and his wife Mae Linda Cardenas, the Register of Deeds of Cebu City, and Banco
Cebuano, Cebu City Development Bank. 5

Answering, the spouses Romeo and Pacita Sim claimed that they are the absolute owners of Lot
7501-B and that Eduardo Tañedo has no right to redeem the land under Art. 1622 of the Civil Code
as the land sought to be redeemed is much bigger than the land owned by Tañedo. 6

Antonio Cardenas, upon the other hand, admitted that he had agreed to sell Lot 7501-B to Eduardo
Tañedo and claimed by way of cross-claim against the spouses Romeo and Pacita Sim that the
Deed of Sale he had executed in favor of said spouses was only intended as an equitable mortgage,
to secure the payment of amounts received by him from said spouses as petty loans . 7

In answer to the cross-claim, the spouses Romeo and Pacita Sim insisted that the sale executed by
Antonio Cardenas of Lot 7501-B in their favor was an absolute one. 8

Thereafter, or on 14 October 1983, the spouses Romeo and Pacita Sim filed motions to dismiss the
complaint and the cross-claim, for lack of cause of action. 9

Acting upon these motions and other incidental motions, the respondent judge issued the questioned
order of 5 December 1983 dismissing the complaint and cross-claim.10

Tañedo filed a motion for reconsideration of the order, but his motion was denied on 20 January
1984. 11

Hence, the present recourse by petitioner Tanedo.

The Court finds merit in the petition. The dismissal of the complaint on the ground of lack of cause of
action, is precipitate. The settled rule where dismissal of an action is sought on the ground that the
complaint does not state a cause of action is, that the insufficiency of the cause of action must
appear on the face of the complaint. And the test of the sufficiency of the ultimate facts alleged in the
complaint to constitute a cause of action, is whether or not, admitting the facts alleged, the court can
render a valid judgment upon the same in accordance with the prayer of the complaint. For this
purpose, the movant is deemed to admit hypothetically the truth of the facts thus averred. 12

In the instant case, it cannot be denied that petitioner Tanedo cannot redeem the entire Lot 7501-B
from the spouses Romeo and Pacita Sim pursuant to the provisions of Art. 1622 Romeo and Pacita
Sim pursuant to the provisions of Art. 1622 of the Civil Code, since the lot sought to be redeemed,
has an area of 612 square meters which is much bigger, area-wise, than the lot owned by petitioner
Tañedo. However, the petitioner seeks to purchase only that small portion of Lot 7501-B occupied by
his apartment building, because the spouses Romeo and Pacita Sim had told him to remove that
portion of his building which enroaches upon Lot 7501-B. Whether or not this is possible should have
been determined at the pre-trial stage or trial on the merits.

Besides, the action of petitioner Tañedo is also one for recovery of damages by reason of breach of
promise by the respondent Antonio Cardenas to sell Lot 7501-B. Paragraphs 3 and 4 of the
amended complaint read, as follows:

3. That by written agreement, plaintiff and defendant spouses Antonio Cardenas and
Mae Linda Cardenas agreed that in the event they decide to sell the adjacent Lot No.
7501-B of the subdivision plan (LRC) Psd. 23638, a portion of Lot No. 7501 of the
cadastral survey of Cebu, LRC (GLRC) Cad. Record No. 9465, situated in the City of
 Cebu, containing an area of SIX HUNDRED TWELVE (612) Square meters more or
less which lot is adjacent to Lot No. 7501-A of the plaintiff and where part of the
plaintiffs apartment is standing on, the same should be sold to the plaintiff, but far
from compliance of the written agreement, defendant spouses Antonio Cardenas and
Mae Linda Cardenas sureptiously [sic] sold the aforestated Lot No. -7501-B- to the
defendant spouses, Romeo Sim and Pacita Sim on July 23, 1982 as per Deed of
Sale notarized by Notary Public, Jorge S. Omega and entered in his Notarial
Register as Doc. No. 462; Page No. -94- Book No. 11, Series of 1982;

4. That due to the sale by the defendant spouses Antonio Cardenas and Mae Linda
Cardenas of the property in question to spouses Romeo Sim and Pacita Lim, plaintiff
suffered moral damages in the form of mental anguish, sleepless nights, mental
torture, for which he is entitled to a compensation in the amount to
be established during the trial of the case and has incurred litigation
expenses subject for reimbursentent and attorneys fee in the sum of
P10,000.00 which should be chargeable to both defendant spouses;13

and the plaintiff (herein petitioner) prayed, among others: "(c) That defendant spouses Romeo Sim
and Pacita Sim and spouses Antonio Cardenas and Mae Linda Cardenas be ordered to pay plaintiff
moral damages, litigation expenses and attorneys fees in the amount of P50,000.00." 14

That there was a written agreement, as alleged in the complaint, between the plaintiff Eduardo
Tañedo and the defendant Antonio Cardenas is admitted by the latter. In his answer, he alleged the
following:

ALLEGATIONS as to written agreement is ADMITTED, but, specifically denies that

herein defendants SUREPTIOUSLY [sic] SOLD the lot in question to the other
defendant Spouses Sim the truth is, that the herein defendants [sic] was required to
execute the Deed of Sale described in this paragraph 3 as security for the personal
loans and other forms of indebtedness incurred from the Spouses Sims but never as
a conveyance to transfer ownership;15

Considering this admission of defendant Cardenas, and that his promise to sell Lot 7501-B to
Eduardo Tañedo appears to be for a valuable consideration, a trial is necessary to determine, at the
very least, the amount of damages suffered by the plaintiff Eduardo Tafiedo by reason of such
breach of promise to sell, if indeed there is such a breach.

Moreover, the finding of the trial court that petitioner Tañedo's right to continue to use the septic
tank, erected on Lot 7501-B, ceased upon the subdivision of the land and its subsequent sale to
different owners who do not have the same interest,16 also appears to be contrary to law. Article 631
of the Civil Code enumerates the grounds for the extinguishment of an easement. Said article
provides:

Art. 631. Easements are extinguished:

(1) By merger in the same person of the ownership of the dominant and servient
estates;

(2) By non-user for ten years; with respect to discontinuous easements, this period
shall be computed from the day on which they ceased to be used; and, with respect
to continuous easements, from the day on which an act contrary to the same took
place;
 (3) When either or both of the estates fall into such condition that the easement
cannot be used; but it shall revive if the subsequent condition of the estates or either
of them should again permit its use, unless when the use becomes possible,
sufficient time for prescription has elapsed, in accordance with the provisions of the
preceding number;

(4) By the expiration of the term or the fulfillment of the conditions, if the easement is
temporary or conditional;

(5) By the renunciation of the owner of the dominant estate;

(6) By the redemption agreed upon between the owners of the dominant and servient
estates.

As can be seen from the above provisions, the alienation of the dominant and servient estates to
different persons is not one of the grounds for the extinguishment of an easement. On the contrary,
use of the easement is continued by operation of law. Article 624 of the Civil Code provides:

Art. 624. The existence of an apparent sign of easement between two estates,
established or maintained by the owner of both, shall be considered, should either of
them be alienated, as a title in order that the easement may continue actively and
passively, unless, at the time the ownership of the two estates is divided, the contrary
should be provided in the title of conveyance of either of them, or the sign aforesaid
should be removed before the execution of the deed. This provision shall also apply
in case of the division of a thing owned in common by two or more persons.

In the instant case, no statement abolishing or extinguishing the easement of drainage was
mentioned in the deed of sale of Lot 7501-A to Eduardo Tañedo. Nor did Antonio Cardenas stop the
use of the drain pipe and septic tank by the occupants of Lot 7501-A before he sold said lot to
Eduardo Tafiedo. Hence, the use of the septic tank is continued by operation of law. Accordingly, the
spouses Romeo and Pacita Sim the new owners of the servient estate (Lot 7501- B), cannot impair,
in any manner whatsoever, the use of the servitude. 17

WHEREFORE, the Orders complained of are hereby REVERSED and SET ASIDE. The respondent
judge or another one designated in his place is directed to proceed with the trial of this case on the
merits. With costs against private respondents.

SO ORDERED.

Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.

G.R. No. 193659 June 15, 2015

SPS. FERNANDO VERGARA and HERMINIA VERGARA, Petitioners,

vs.
ERLINDA TORRECAMPO SONKIN, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari 1 are the Decision2 dated February 24, 2010 and the
Resolution3 dated September 2, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 89357, which
reversed and set aside the Decision4dated January 4, 2007 of the Regional Trial Court of Malolos
City, Bulacan, Branch 19 (RTC) in Civil Case. No. 900-M-2002 and entered a new one in its stead.

The Facts

Petitioners-spouses Fernando Vergara and Herminia Vergara (Sps. Vergara) and Spouses Ronald
Mark Sonkin and Erlinda Torrecampo Sonkin (Sps. Sonkin) are adjoining landowners in Poblacion,
Norzagaray, Bulacan. In view of the geographical configuration of the adjoining properties, the
property owned by Sps. Sonkin (Sonkin Property) is slightly lower in elevation than that owned by Sp
s. Vergara (Vergara Property).5

When Sps. Sonkin bought the Sonkin Property sometime in 1999, they raised the height of the par
tition wall and caused the construction of their house thereon. The house itself was attached to the
partition wall such that a portion thereof became part of the wall of the master’s bedroom and
bathroom.6

Sometime in 2001, Sps. Vergara levelled the uneven portion of the Vergara Property by filling it with
gravel, earth, and soil. As a result, the level of the Vergara Property became ev en higher than that
of the Sonkin Property by a third of a meter. Eventually, Sps. Sonkin began to complain that water
coming from the Vergara Property was leaking into their bedroom through the partition wall, causing
cracks, as well as damage, to the paint and the wooden parquet floor. Sps. Sonkin repeatedly
demanded that Sps. Vergara build a retaining wall on their property in order to contain the landfill
that they had dumped thereon, but the same went unheeded. 7 Hence, Sps. Sonkin filed the instant
complaint for damages and injunction with prayer for preliminary mandatory injunction and issuance
of a temporary restraining order against Sps. Vergara, as well as Sps. Rowena Santiago and Harold
Santiago, Dolores Vergara-Orbistondo, and Rosario Vergara-Payumo, the other possessors of the
Vergara Property.8

In defense, Sps. Vergara, in their Answer with Compulsory Counterclaim,9 claimed that Sps.
Sonkin’s act of raising the partition wall made the same susceptible to breakage, which therefore
cannot be attributed to them (Sps. Vergara). They likewise claimed that when they levelled their own
property by filling it with gravel and soil, they left a distance of one (1) meter from the partition wall
such that the edge of the landfill did not breach it, asserting further that there was no valid and legal
reason why they should be enjoined from exercising their proprietary rights.10

During the trial, Sps. Sonkin presented the testimony of Engineer Ma. Victoria Mendoza, considered
an expert witness, who categorically declared that in view of the sloping terrain and the Sonkin
Property being lower in elevation than that of the Vergara Property, the Sps. Vergara were then duty
bound to provide a retaining wall because they were the ones who caused the landfill, citing Section
120211 of Presidential Decree No. 1096,12 otherwise known as the "National Building Code of the
Philippines" (National Building Code). Likewise, ci ting Sections 3.2.1, 3.2. 3, and 3.2.4 of Section

3.2, Rule XV of the original Implementing Rules and Regulations 13 of the National Building Code, she
explained that it was Sps. Vergara’s duty to provide safety requirements for the landfill they made on
their property to prevent any danger to life or property. Moreover, Sps. Vergara failed to provide a
sewerage line to divert the flow of the water into the adjoining property, in violation of Section 901 14 of
the National Building Code.15

Finally, the Provincial Engineer of Bulacan, Romeo S. Castro, who was appointed as Commissioner
by the RTC to conduct his own investigation, likewise found, inter alia, that the introduction of filling
materials on the Vergara Property has "affected" the house of Sps. Sonkin.16

The RTC Ruling

In a Decision17 dated January 4, 2007, th e RTC found Sps. Vergara civilly liable to Sps. Sonkin for
damages and directed them: ( a ) to scrape the earth and other filling materials dumped in the
adjacent perimeter wall of the Sonkin Property and erect a retaining wall in accordance with the
standards of the National Building Code; (b) to install and provide an adequate drainage system in
accordance with the same Code; and ( c) to jointly and severally pay Sps. Sonkin 300,000.00 as
actual damages, 50,000.00 as moral damages, 50,000.00 as exemplary damages, 100,000.00 as
attorney’s fees, and costs of suit. It dismissed all other claims of the Sps. Sonkin, as well as the
counterclaims of Sps. Vergara, for lack of merit.18

The RTC found that the earth dumpe d on the Vergara Property pushed back the perimeter wall,
causing crack s on Sps. Sonkin’s bedroom wall and water to seep through the floor of the house.
Moreover, the water seepage could only have come from the Vergara Property which was higher in
elevation, as Sps. Vergara have failed to provide any drainage to divert the flow of water. Given the
foregoing, the RTC concluded that Sps. Vergara’s act of dumping earth, soil, and other materials in
their property directly caused the damage to the house of Sps. Sonkin and, thus, they should be held
liable for damages in favor of the latter. Needless to state, Sps. Vergara’s co-defendants were
exculpated from liability since they were not shown to have participated in the former’s act. 19

Aggrieved, Sps. Vergara appealed20 the entire RTC Decision to the CA. They reiterated that they
were merely exercising their proprietary rights over their property, i.e., the Vergara Property, when
they filled the area with soil and gravel, and that it was Sps. Sonkin who transgressed the National
Building Code when they failed to leave a setback of two (2) meters between their house and the
property line.21

On the other hand, Sps. Sonkin filed only a partial appeal,22 assailing the amount of actual, moral,
and exemplary damages.

The CA Ruling

In a Decision23 dated February 24, 2010, the CA reversed and set aside the assailed RTC Decision
and entered a new one: (a ) ordering the Sps. Vergara to install and provide an adequate drainage
system on their property to prevent the flow of water into the Sonkin Property, and to pay Sps.
Sonkin the amounts of 50,000.00 as moral damages and 100,000.00 as attorney’s fees; (b ) setting
aside the directive to Sps. Vergara to remove the landfill and build a retaining wall on their property;
(c) deleting the award of actual damages, as well as exemplary damages; and ( d ) dismissing the
separate appeal of the Sps. Sonkin for lack of merit.24
While the CA concurred with the finding of the RTC that the cause of the water seepage into the
Sonkin Property was the act of Sps. Vergara in elevating their own property by filling it with gravel
and soil, it ascribed error upon the RTC in not finding that Sps. Sonkin were likewise guilty of
contributory negligence in buildi ng their house directly abutting the perimeter wall. 25 The CA
explained that despite the fact that under Article 637 of the Civil Code, the Sonkin Property is legally
obliged to receive any water from higher estates such as the Vergara Property, it being the lower
estate, the Sps. Sonkin still built their house with parts thereof directly abutting the perimeter wall
and, in the process, violated the two (2)-meter setback rule under Section 70826 of the National
Building Code.27 Thus, the CA deduced that had Sps. Sonkin followed such rule, then their house
would not have sustained any damage from water coming from the Vergara property. 28 Proceeding
from such ratiocination, the CA deleted the award of actual damages in the absence of evidence,
i.e., actual receipts, showing the amount actually spent by Sps. Sonkin in the repairs or renovation of
their property. Similarly, it deleted the award of exemplary damages, as Sps. Vergara was not
proven to have acted with gross negligence in levelling their property with the landfill and in
mitigation of their liability in light of Sps. Sonkin’s contributory negligence. The award of moral
damages and attorney’s fees, however, were affirmed. 29

Finally, the CA found the order directing Sps. Vergara to remove the landfill on their property to be
unreasonable and an interference on their proprietary rights. It considered the order to provide an
adequate drainage system on their property to be su fficient under the circumstances. Neither did it
find the need to build a retain ing wall on the Vergara Property for the purpose of containing the
landfill thereon, opining that if it was Sps. Vergara’s obligation to prevent damage to Sps. Sonkin’s
house by erecting a retaining wall, then it was the latter’s concomitant ob ligation to detach their
house from the perimeter wall in order to prevent any future damage or injury. 30

Only Sps. Vergara sought reconsideration31 from the CA Decision, which was denied in a
Resolution32 dated September 2, 2010. Hence, this petition impleading only respondent Erlinda
Torrecampo Sonkin (Erlinda), essentially arguing that Sps. Sonkin: (a) are not entitled to damages;
and (b)should be ordered to demolish the parts of their house directly abutting the perimeter wall in
compliance with Section 708 (a) of the National Building Code. 33 Records are bereft of showing that
Sps. Sonkin made a further appeal to the Court.

The Issue Before the Court

The issues for the Court’s resolution are (a) whether or not the CA erred in upholding the award of
moral damages and attorney’s fees; and (b ) whether or not it should have ordered the demolition of
the portion of the Sps. Sonkin’s house that adjoins the partition wall.

The Court's Ruling

The petition is meritorious.

Article 2179 of the Civil Code reads:

Art. 2179. When the plaintiff’s own negligence was the immediate and proximate cause of his injury,
he cannot recover damages. But if his negligence was only contributory, the immediate and
proximate cause of the injury being the defendant’s lack of due care, the plaintiff may recover
damages, but the courts shall mitigate the damages to be awarded.

Verily, contributory negligence is conduct on the part of the injured party, contributing as a legal
cause to the harm he has suffered, which falls below the standard to which he is required to conform
for his own protection.34
In the case at bar, it is undisputed that the Sonkin property is lower in elevation than the Vergara
property, and thus, it is legally obliged to receive the waters that flow from the latter, pursuant to
Article 637 of the Civil Code. This provision refers to the legal easement pertaining to the natural
drainage of lands, which obliges lower estates to receive from the higher estates water which
naturally and without the intervention of man descends from the latter, i.e., not those collected
artificially in reservoirs, etc., and the stones and earth carried by the waters, 35 viz.:

Art. 637. Lower estates are obliged to receive the waters which naturally and without the intervention
of man descend from the higher estates, as well as the stones or earth which they carry with them.

The owner of the lower estate cannot construct works which will impede this easement; neither can
the owner of the higher estate make works which will increase the burden. 36

In this light, Sps. Sonkin should have been aware of such circumstance and, accordingly, made the
necessary adjustments to their property so as to minimize the burden created by such legal
easement. Instead of doing so, they disregarded the easement and constructed their house directly
against the perimeter wall which adjoins the Vergara property, thereby violating the National Building
Code in the process, specifically Section 708 (a) thereof which reads:

Section 708. Minimum Requirements for Group A Dwellings.

(a) Dwelling Location and Lot Occupancy.

The dwelling shall occupy not more than ninety percent of a corner lot and eighty percent of an
inside lot, and subject to the provisions on Easement on Light and View of the Civil Code of the
Philippines, shall be at least 2 meters from the property line.

Hence, the CA correctly held that while the proximate cause of the damage sustained by the house
of Sps. Sonkin was the act of Sps. Vergara in dumping gravel and soil onto their property, thus,
pushing the perimeter wall back and causing cracks thereon, as well as water seepage, the former is
nevertheless guilty of contributory negligence for not only failing to observe the two (2)-meter
setback rule under the National Building Code, but also for disregarding the legal easement
constituted over their property. As such, Sps. Sonkin must necessarily and equally bear their own
loss.

In view of Sps. Sonkin’s contributory negligence, the Court deems it appropriate to delete the award
of moral damages in their favor. While moral damages may be awarded whenever the defendant’s
wrongful act or omission is the proximate cause of the plaintiff’s physical suffering, mental anguish,
fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation and
similar injury in the cases specified or analogous to those provided in Article 2219 37 of the Civil
Code,38 they are only given to ease the defendant’s grief and suffering and should, therefore,
reasonably approximate the extent of hurt caused and the gravity of the wrong done. 39

Anent the issue on attorney’s fees, the general rule is that the same cannot be recovered as part of
damages because of the policy that no premium should be placed on the right to litigate. They are
not to be awarded every time a party wins a suit. The power of the court to award attorney’s fees
under Article 220840 of the Civil Code demands factual, legal, and equitable justification. Even when
a claimant is compelled to litigate with third persons or to incur expenses to protect his rights, still
attorney's fees may not be awarded where no sufficient showing of bad faith could be reflected in a
party's persistence in a case other than an erroneous conviction of the righteousness of his
cause.41 In this case, the Court observes that neither Sps. Sonkin nor Sps. Vergara(thru their
compulsory
counterclaim) were shown to have acted in bad faith in pursuing their respective claims against each
other. The existence of bad faith is negated by the fact that both parties have valid contentions
against each other. Thus, absent cogent reason to hold otherwise, the Court deems it inappropriate
to award attorney's fees in favor of either party.42

Finally, in view of Sps. Sonkin's undisputed failure to observe the two (2)-meter setback rule under
the National Building Code, and in light of the order of the courts a quo directing Sps. Vergara to
provide an adequate drainage system within their property, the Court likewise deems it proper,
equitable, and necessary to order Erlinda, who is solely impleaded as respondent before the Court,
to comply with the aforesaid rule by the removal of the portion of her house directly abutting the
partition wall. The underlying precept on contributory negligence is that a plaintiff who is partly
responsible for his own injury should not be entitled to recover damages in full but must bear the
consequences of his own negligence. The defendant must therefore be held liable only for the
damages actually caused by his negligence.43

WHEREFORE, the petition is GRANTED. The Decision dated February 24, 2010 and the Resolution
dated September 2, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 89357 are hereby
AFFIRMED with MODIFICATIONS. The awards of moral damages and attorney's fees are
DELETED and respondent Erlinda Torrecampo Sonkin is DIRECTED to strictly comply with Section
708 (a) of the National Building Code by removing or demolishing the portion of her house that
occupies the two-meter easement from the property line. The rest of the CA Decision stands.

SO ORDERED.
G.R. No. 125018 April 6, 2000

REMMAN ENTERPRISES, INC., petitioner,

vs.
COURT OF APPEALS and CRISPIN E. LAT, respondents.

BELLOSILLO, J.:

REMMAN ENTERPRISES, INC. (REMMAN), and CRISPIN E. LAT are adjoining landowners in
Barangay Bugtong Na Pulo, Lipa City. The land of Lat containing an area of 1.8 hectares is
agricultural and planted mostly with fruit trees while REMMAN occupies a land area of fifteen (15)
hectares six (6) hectares of which are devoted to its piggery business. REMMAN's land is one and a
half (1 1/2) meters higher in elevation than that of respondent Lat.

Sometime in July 1984 Lat noticed that REMMAN's waste disposal lagoon was already overflowing
and inundating one-fourth (1/4) of Lat's plantation. He made several representations with REMMAN
but they fell on deaf ears. On 14 March 1985, after almost one (1) hectare of Lat's plantation was
already inundated with water containing pig manure, as a result of which the trees growing on the
flooded portion started to wither and die, Lat filed a complaint for damages with preliminary
mandatory injunction against REMMAN. Lat alleged that the acidity of the soil in his plantation
increased because of the overflow of the water heavy with pig manure from REMMAN's piggery
farm.

REMMAN denied all the allegations of Lat and raised as an affirmative defense that measures such
as the construction of additional lagoons were already adopted to contain the waste water coming
from its piggery to prevent any damage to the adjoining estates.

After conducting an ocular inspection and evaluating the evidence of both parties the Regional Trial
Court found that indeed REMMAN’s waste disposal lagoon overflowed with the contaminated water
flooding one (1) hectare of Lat's plantation. The waste water was ankle-deep and caused death and
destruction to one (1) jackfruit tree, fifteen (15) coconut trees, one hundred twenty-two (122) coffee
trees, and an unspecified number of mango trees, bananas and vegetables. As a consequence, the
trial court ordered REMMAN to indemnify Lat P186,975.00 for lost profits for three (3) crop years and
P30,000.00 as attorney's fees.1

The decision of the court a quo was affirmed in toto by the Court of Appeals.2

In this Petition for Review on Certiorari REMMAN prays that we pass upon the findings of the trial
court as well as of the appellate court. REMMAN insists that factual findings of lower courts may be
passed upon, reviewed and reversed: (a) when the conclusion is a finding grounded entirely on
speculation, surmises or conjectures; (b) when the inference made is manifestly mistaken, absurd or
impossible; (c) when there is grave abuse of discretion; (d) when the judgment is based on a
misapprehension of facts; (e) when the Court of Appeals manifestly overlooked certain relevant facts
not disputed by the parties and which, if properly considered, would justify a different conclusion; (f)
when the conclusions of the Court of Appeals are not supported by the evidence on record; (g) when
facts of substance were overlooked which, if correctly considered, might have changed the outcome
of the case; and, (h) when the findings of the Court of Appeals are not in accord with what
reasonable men would readily accept are the correct inferences from the evidence extant in the
records.3

Indeed, in the abovementioned instances, the factual milieu of a particular case may be passed
upon, reversed or modified by this Court. But examination of the record reveals that all the above
instances are unavailing. From this point of view alone the instant petition is dismissible.
Nevertheless, we shall discuss them hereunder to dispose finally of the contentions of REMMAN.

First, REMMAN argues that its liability for the damages suffered by Lat was not clearly established.

We disagree. During the ocular inspection conducted by the lower court where representatives of
both parties were present, it was established that the waste water containing pig manure was
continuously flowing from REMMAN's piggery farm to Lat's plantation. The water was ankle-deep
and flooded one (1) hectare of Lat's plantation. The overflow of the "acidic, malodorous and polluted
water" continued from June 1984 to March 1985 thus destroying one (1) jackfruit tree, fifteen (15)
coconut trees, one hundred an twenty-two (122) coffee trees, and an unspecified number of mango
trees, bananas and vegetables.4

In addition, the appellate court found that there was indeed negligence on the part of REMMAN
which directly caused the damage to the plantation of Lat. Thus —

. . . Negligence was clearly established. It is uncontroverted that the land of appellee was
flooded on account of the overflow of acidic, malodorous and polluted water coming from the
adjacent piggery farm of appellant sometime in May 1984. This resulted in the impairment of
the productivity of appellee's land as well as the eventual destruction and death of several
fruit trees, such as coconuts, coffee, jackfruits, bananas and other plants . . . . Appellant
cannot avoid liability because their negligence was the proximate cause of the damage.
Appellee's property was practically made a catch-basin of polluted water and other noxious
substances emptying from appellant's piggery which could have been prevented had it not
been for the negligence of appellant arising from its: (a) failure to monitor the increases in the
level of water in the lagoons before, during and after the heavy downpours which occurred
during the rainy months of 1984; (b) failure to augment the existing lagoons prior to the
incident, notwithstanding the fact that at the time of the flooding, the piggery had grown to a
capacity of 11,000 heads, and considering that it was reasonably forseeable that the existing
waste disposal facilities were no longer adequate to accomodate the increasing volume of
waste matters in such a big farm; and more importantly, (c) the repeated failure to comply
with their promise to appellee.5

Second, REMMAN argues that the trial court as well as the Court of Appeals should not have
rejected its request for the production of Lat's income tax returns. According to REMMAN had Lat's
income tax returns been produced, the issue of the alleged damages suffered by Lat would have
been settled.

This argument is moot, if not trite. For this matter has been laid to rest when we affirmed the Court of
Appeals' decision in an earlier case involving the same parties. 6 In sustaining the trial court's quashal
of the subpoena duces tecum previously issued compelling Lat to produce his income tax returns for
the years 1982-1986, the appellate court explained that the production of the income tax returns
would not necessarily serve to prove the special and affirmative defenses set up by REMMAN nor
rebut Lat's testimony regarding the losses he sustained due to the piggery. The tax returns per
se could not reflect the total amount of damages suffered by Lat, as income losses from a portion of
the plantation could be offset by any profit derived from the rest of the plantation or from other
sources of income. Conversely, losses incurred from other sources of income would be totally
unrelated to the income from the particular portion of the plantation flooded with waste matter
coming from REMMAN's piggery.7

Third, REMMAN contends that the damages allegedly sustained by Lat have not been satisfactorily
established.1âwphi1
We a not convinced. The factual findings of the court a quo rightly support its conclusions on this
respect —

Coming now to the issue of damages, We find appellant's allegations not well-taken.
Appellant contends that actual and compensatory damages require evidentiary proof, and
there being no evidence presented as to the necessity of the award for damages, it was
erroneous for the lower court to have made such award. It must be remembered that after
the ocular inspection, the court a quo rendered an inventory of dead and rotten trees and
plants found in appellee's property. Appellee also testified on the approximate annual
harvest and fair market value thereof. Significantly, no opposition or controverting evidence
was presented by appellant on the matter. Hence, appellant is bound thereby and cannot
now be heard to complain. As correctly held by the court a quo:

An ocular inspection has been conducted by the trial court. The inventory of the trees
damaged and the itemized valuation placed therein by private respondent after the
ocular inspection which is not rebutted by the petitioner, is the more accurate
indicator of the said amount prayed for as damages. If the valuation is indeed
unreasonable, petitioner should present controverting evidence of the fair market
value of the crops involved. The trial court held that the private respondent himself
had been subjected to extensive cross and re-cross examination by the counsel for
the petitioner on the amount of damages. 8

Finally, REMMAN complains that the damages, if any, were due to a fortuitous event.

Again, we cannot agree with petitioner. We defer instead to the findings opinions expressed by the
lower courts —

Even assuming that the heavy rains constituted an act of God, by reason of their negligence,
the fortuitous event became humanized, rendering appellants liable for the ensuing
damages. In National Power Corporation v. Court of Appeals, 233 SCRA 649 (1993), the
Supreme Court held:

Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to
escape liability for the loss or damage sustained by private respondents since they,
the petitioners, were guilty of negligence. This event then was not occasioned
exclusively by an act of God or force majeure; a human factor — negligence or
imprudence — had intervened. The effect then of the force majeure in question may
be deemed to have, even if only partly, resulted from the participation of man. Thus,
the whole occurrence was thereby humanized, as it were, and removed from the
rules applicable to acts of God.

As regards the alleged natural easement imposed upon the property of appellee, resort to
pertinent provisions of applicable law is imperative. Under the Civil Code, it is provided:

Art. 637. Lower estates are obliged to receive the waters which naturally and without
the intervention of man descend from the higher estates, as well as the stones or
earth which they carry with them.

The owner of the lower estate cannot construct works which will impede this
easement; neither can the owner of the higher estate make works which will increase
the burden.
 A similar provision is found in the Water Code of the Philippines (P.D. No. 1067), which
provides:

Art. 50. Lower estates are obliged to receive the water which naturally and without
the intervention of man flow from the higher estates, as well as the stone or earth
which they carry with them.

The owner of the lower estate cannot construct works which will impede this natural
flow, unless he provides an alternative method of drainage; neither can the owner of
the higher estate make works which will increase this natural flow.

As worded, the two (2) aforecited provisions impose a natural easement upon the lower
estate to receive the waters which naturally and without the intervention of man descend
from higher states. However, where the waters which flow from a higher state are those
which are artificially collected in man-made lagoons, any damage occasioned thereby
entitles the owner of the lower or servient estate to compensation. 9

On the basis of the foregoing discussion, it is crystal clear that REMMAN is directly accountable to
Lat for the damages sustained by him. The negligence of REMMAN in maintaining the level of waste
water in its lagoons has been satisfactorily established. The extent of damages suffered by Lat
remains unrebutted; in fact, has been proved.

WHEREFORE, the petition is DENIED. The 19 October 1995 Decision of the Court of Appeals
affirming that of the Regional Trial Court-Br. 16, Lipa City, holding petitioner Remman Enterprises,
Inc. (REMMAN) liable to private respondent Crispin E. Lat for damages and to indemnify the latter
P186,975.00 for lost profits for three (3) crop years and P30,000.00 as attorneys fees, is
AFFIRMED. Costs against petitioner. 1âwphi1.nêt

SO ORDERED.

Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.

Footnotes

1
Decision penned by Judge Enrico A. Lanzanas, RTC-Br. 13, Lipa City, Civil Case No. V-
408; RTC Records, pp. 539-559.

2
Decision penned by Justice Oswaldo D. Agcoaili, concurred in by Justices Justo P. Torres,
Jr., and Eubulo G. Verzola, CA-G.R. CV 37720; CA Records, pp. 144-162.

3
Petition; Rollo, pp. 6-7.

4
Original Records, p. 211.

5
CA Records, p. 158.

6
See Resolution of the Third Division dated 14 January 1991 in G.R. No. 95561; RTC
Records, pp. 496-497.
7
Decision penned by Associate Justice Minerva P. Gonzaga-Reyes (now a Member of this
Court), concurred in by Associate Justices Ricardo J. Francisco (now retired Member of this
Court) and Salome A. Montoya (now Presiding Justice of the Court of Appeals), CA-G.R. SP
No. 20537, prom. 29 June 1990; id., pp. 487-490.

8
CA Rollo, pp. 161-162.

9
Id., pp. 159-160.