VELASCO vs. CUSI, JR.

and THE CITY OF DAVAO

G.R. No. L-33507
July 20, 1981
FACTS: Petitioner filed in the CFI of Davao an action against Davao City to quiet title to her
Lot 77-B-2, a portion of which she claims to having been occupied illegally as part of Bolton
Street, Davao City.
On a motion to dismiss filed by the defendant, on the ground that the complaint states no cause
of action, the Court, presided over by respondent Judge Cusi Jr., dismissed the case. The
allegations in the complaint that the Bolton Street encroached on the lot of the plaintiff and that
the defendant had continuously occupied the portion so encroached upon do not, contrary to the
conclusion of the plaintiff found in the complaint, cast . . a cloud of doubt on the title of the
plaintiff over said portion which would justify this action.
Hence, this petition for certiorari seeking a review of the Order of dismissal
ISSUE: WON Boston st. is an easement and a legal encumbrance on petitioners lot.
HELD: WHEREFORE, no reversible error having been found in the Order complained of, the
same is hereby AFFIRMED, and the instant petition, dismissed
YES
Section 39 of Act 496:
Every person receiving a certificate of title in pursuance of a decree or registration, and every
subsequent purchasers of registered land who takes a certificate of title for value in good faith
shall hold the same free of all encumbrances, except those noted on said certificate, and any of
the following encumbrances which may be subsisting namely:
xxx xxx xxx
Third. Any public highway, way, private way, or any government irrigation
XX
It appears on the face of the complaint that Bolton Street has been where it is from time
immemorial. Bolton Street constituted an easement of public highway on subject Lot No. 77,
from which petitioners lot was taken, when the said bigger lot was original registered. It
remained as such legal encumbrance, as effectively as if it had been duly noted , or
notwithstanding the lack of an annotation, on the certificate of title, by virtue of the clear and
express provision of Section 39 of Act 496, it being admitted that at the time of the registration
of Lot 77, the public highway was already in existence or subsisting
NOTES:
Bolton Street cannot be a discontinuous easement as she claims it to be, which may not be
acquired by prescription. Nonetheless, whether the mode of acquisition of the easement that
Bolton Street is, would be only by virtue of title, as petitioner contends, this is not material or of
any consequence. The action is to quiet title and damages; but the complaint does not allege any
cloud or doubt on the title

BICOL AGRO-INDUSTRIAL PRODUCERS COOPERATIVE, INC. (BAPCI) vs. OBIAS,

et al.
Facts:
The Bicol Sugar Development Corporation (BISUDECO) was established at Himaao,
Pili, Camarines Sur. In the same year, BISUDECO constructed a road ("the disputed road")
measuring approximately 7 meters wide and 2.9 kilometers long. The disputed road was used by
BISUDECO in hauling and transporting sugarcane to and from its mill site (Pensumil) and has
thus become indispensable to its sugar milling operations.

Respondents unjustifiably barricaded the disputed road by placing bamboos, woods,

placards and stones across it, preventing petitioners and the other sugar planters vehicles from
passing through the disputed road, thereby causing serious damage and prejudice to petitioner.
Petitioner alleged that BISUDECO constructed the disputed road pursuant to an
agreement with the owners of the ricefields the road traversed. The agreement provides that
BISUDECO shall employ the children and relatives of the landowners in exchange for the
construction of the road on their properties. Petitioner contends that through prolonged and
continuous use of the disputed road, BISUDECO acquired a right of way over the properties of
the landowners, which right of way in turn was acquired by it when it bought BISUDECOs
assets. Petitioner prayed that respondents be permanently ordered to restrain from barricading the
disputed road and from obstructing its free passage.
Respondents denied having entered into an agreement with BISUDECO regarding the
construction and the use of the disputed road. They alleged that BISUDECO, surreptitiously and
without their knowledge and consent, constructed the disputed road on their properties and has
since then intermittently and discontinuously used the disputed road for hauling sugarcane
despite their repeated protests. Respondents claimed they tolerated BISUDECO in the
construction and the use of the road since BISUDECO was a government-owned and controlled
corporation, and the entire country was then under Martial Law. Respondents likewise denied
that the road has become a public road, since no public funds were used for its construction and
maintenance.
The RTC ruled that petitioner failed to present any concrete evidence to prove that there
was an agreement between BISUDECO and respondents for the construction of the disputed
road. Moreover, it held that petitioner did not acquire the same by prescription.
The CA affirmed the finding of the RTC that there was no conclusive proof to sufficiently
establish the existence of an agreement between BISUDECO and respondents regarding the
construction of the disputed road. Moreover, the CA also declared that an easement of right of
way is discontinuous and as such cannot be acquired by prescription.
Issue:
1. Whether or not there is an existing agreement between BISUDECO and Respondents
2. Whether or not the principles of prescription, laches and estoppels is applicable in this
case
Held:
1. No. In order for petitioner to acquire the disputed road as an easement of right-of-way, it was
incumbent upon petitioner to show its right by title or by an agreement with the owners of the
lands that said road traversed.
Easement or servitude is an encumbrance imposed upon an immovable for the benefit of
another immovable belonging to a different owner. By its creation, easement is established either
by law (in which case it is a legal easement) or by will of the parties (a voluntary easement). In
terms of use, easement may either be continuous or discontinuous. The easement of right of
way the privilege of persons or a particular class of persons to pass over anothers land,
usually through one particular path or linen is characterized as a discontinuous
easement because its use is in intervals and depends on the act of man. Because of this
character, an easement of a right of way may only be acquired by virtue of a title.
Article 622 of the New Civil Code is the applicable law in the case at bar, viz:
Art. 622. Continuous non-apparent easements, and discontinuous ones, whether apparent or not,
may be acquired only by virtue of a title.
It is clear that the plaintiff failed to present any concrete evidence to prove that there was
such an agreement between BISUDECO and defendants.
The lower court correctly disbelieved the plaintiffs-appellants contention that an
agreement existed because there is simply no direct evidence to support this allegation. BAPCI
submitted purely circumstantial evidence that are not sufficiently adequate as basis for the
inference than an agreement existed. By themselves, the circumstances the plaintiffs-appellants
cited i.e., the employment of sixteen (16) relatives of the defendants-appellants; the

defendants-appellants unjustified silence; the fact that the existence of the agreement is known
to everyone, etc. are events susceptible of diverse interpretations and do not necessarily lead to
BAPCIs desired conclusion.
2. No. , "It is already well-established that a right of way is discontinuous and, as such, cannot be
acquired by prescription."
Continuous and apparent easements are acquired either by virtue of a title or by
prescription of ten years.
Under civil law and its jurisprudence, easements are either continuous or
discontinuous according to the manner they are exercised, not according to the presence of
apparent signs or physical indications of the existence of such easements. Thus, easement is
continuous if its use is, or may be, incessant without the intervention of any act of man, like the
easement of drainage; and it is discontinuous if it is used at intervals and depends on the act of
man, like the easement of right of way.
The easement of right of way is considered discontinuous because it is exercised only if a person
passes or sets foot on somebody elses land. Like a road for the passage of vehicles or persons,
an easement of right of way of railroad tracks is discontinuous because the right is exercised only
if and when a train operated by a person passes over another's property. In other words, the very
exercise of the servitude depends upon the act or intervention of man which is the very essence
of discontinuous easements.
The presence of physical or visual signs only classifies an easement into apparent or nonapparent. Thus, a road (which reveals a right of way) and a window (which evidences a
right to light and view) are apparent easements, while an easement of not building beyond
a certain height is non-apparent.
It has been held that the existence of a permanent railway does not make the right of way a
continuous one; it is only apparent. Therefore, it cannot be acquired by prescription. It was also
been held that a right of passage over another's land cannot be claimed by prescription because
this easement is discontinuous and can be established only by title.
In this case, the presence of railroad tracks for the passage of petitioners trains
denotes the existence of an apparent but discontinuous easement of right of way. And under
Article 622 of the Civil Code, discontinuous easements, whether apparent or not, may be
acquired only by title. Unfortunately, petitioner Bomedco never acquired any title over the use of
the railroad right of way whether by law, donation, testamentary succession or contract. Its use of
the right of way, however long, never resulted in its acquisition of the easement because, under
Article 622, the discontinuous easement of a railroad right of way can only be acquired by
title and not by prescription.
Easements are either continuous or discontinuous according to the manner they are
exercised, not according to the presence of apparent signs or physical indications of the existence
of such easements. Hence, even if the road in dispute has been improved and maintained over a
number of years, it will not change its discontinuous nature but simply make the same apparent.
To stress, Article 622 of the New Civil Code states that discontinuous easements, whether
apparent or not, may be acquired only by virtue of a title.
The question of laches is addressed to the sound discretion of the court and each case
must be decided according to its particular circumstances.
Philippines, which provides:
Art. 622. Continuous non-apparent easements, and discontinuous ones, whether apparent or not,
may be acquired only by virtue of a title.
The eminent jurist, former Senator Arturo M. Tolentino, opines that this provision seeks
to prevent the imposition of a burden on a tenement based purely on the generosity, tolerance and
spirit of neighborliness of the owners thereof.
We applied the cited provision to the case in ruling that no easement of right of way
was acquired; based on the evidence presented, the plaintiff-appellant failed to

satisfactorily prove the existence of an agreement evidencing any right or title to use the
disputed road. We additionally rejected the plaintiff-appellants position that it had
acquired the easement of right of way through acquisitive prescription, as settled
jurisprudence states that an easement of right of way cannot be acquired by prescription.
We find that the positive mandate of Article 622 of the Civil Code the statutory
provision requiring title as basis for the acquisition of an easement of a right of way
precludes the application of the equitable principle of laches.
This Court agrees with the CA. The fact that the law is categorical that discontinuous
easements cannot be acquired by prescription militates against petitioners claim of laches. To
stress, discontinuous easements can only be acquired by title. On the other hand, as to the
issue of estoppel, this Court likewise agrees with the finding of the CA that petitioner did not
present any evidence that would show an admission, representation or conduct by respondents
that will give rise to estoppel.

Ronquillo v. CA
Facts: Rosendo del Rosario was a registered owner of a parcel of land
known as Lot 34, Block 9, Sulucan Subdivision, situated at Sampaloc, Manila
and covered by TCT 34797 of the Registry of Deeds of Manila. Florencia
and Amparo del Rosario were daughters of said Rosendo del Rosario.
Adjoining said lot is a dried-up portion of the old Estero Calubcub occupied
by Mario C. Ronquillo since 1945. Both del Rosario and Ronquillo have filed
with the Bureau of Lands miscellaneous sales application for the purchase of
the abandoned river bed known as Estero Calubcub and their sales
applications, dated 5 August 1958 and 13 October 1959, respectively, are still
pending action before the Bureau of Lands. Del Rosario claims that long
before 1930, when TCT 34797 over Lot 34 was issued in the name of
Rosendo del Rosario, the latter had been in possession of said lot including
the adjoining dried-up portion of the old Estero Calubcub, having bought
the same from Arsenio Arzaga. Sometime in 1935, said titled lot was
occupied by Isabel Roldan with the tolerance and consent of del Rosario on
condition that the former will make improvements on the adjoining dried-up
portion of the Estero Calubcub. In the early part of 1945 defendant
occupied the eastern portion of said titled lot as well as the dried-up portion
of the old Estero Calubcub which abuts del Rosario's titled lot. After a
relocation survey of the land in question sometime in 1960, del Rosario
learned that Ronquillo was occupying a portion of their land and thus
demanded Ronquillo to vacate said land when the latter refused to pay the
reasonable rent for its occupancy. However, despite said demand Ronquillo
refused to vacate. On the other hand, Ronquillo claims that sometime before
1945 he was living with his sister who was then residing or renting Del
Rosario's titled lot. In 1945 he built his house on the disputed dried-up
portion of the Estero Calubcub with a small portion thereof on the titled lot
of del Rosario. Later in 1961, said house was destroyed by a fire which
prompted him to rebuild the same but, this time it was built only on the
dried-up portion of the old Estero Calubcub without touching any part of
del Rosarios titled land. He further claims that said dried-up portion is a
land of public domain.
Rosendo, Amparo and Florencia del Rosario lodged a complaint with the
CFI Manila praying, among others, that they be declared the rightful owners
of the dried-up portion of Estero Calubcub. Ronquillo filed a motion to
dismiss the complaint on the ground that the trial court had no jurisdiction
over the case since the dried-up portion of Estero Calubcub is public land

and, thus, subject to the disposition of the Director of Lands. The Del
Rosarios opposed the motion arguing that since they are claiming title to the
dried-up portion of Estero Calubcub as riparian owners, the trial court has
jurisdiction. The resolution of the motion to dismiss was deferred until after
trial on the merits. On 26 December 1962, the trial court rendered judgment
ordering Ronquillo to deliver to del Rosario the portion of the land covered
by TCT 34797 which is occupied by him and to pay for the use and
occupation of said portion of land at the rate of P5 a month from the date of
the filing of the complaint until such time as he surrenders the same to del
Rosario and declaring Del Rosario to be the owners of the dried-up portion
of estero Calubcub which is abutting del Rosario' property; with costs
against Ronquillo.
On appeal (CA-GR 32479-R), the Court of Appeals affirmed the decision
of the trial court on 25 September 1975 and declared that since Estero
Calubcub had already dried-up way back in 1930 due to the natural change in
the course of the waters, under Article 370 of the old Civil Code which it
considers applicable to the present case, the abandoned river bed belongs to
the Del Rosarios as riparian owners. Consequently, respondent court opines,
the dried-up river bed is private land and does not form part of the land of
the public domain. It stated further that even assuming for the sake of
argument that said estero did not change its course but merely dried up or
disappeared, said dried-up estero would still belong to the riparian owner,
citing its ruling in the case of Pinzon vs. Rama. Upon motion of Ronquillo,
respondent court modified its decision on 28 January 1976 by setting aside
the first portion of the trial court's decision ordering Ronquillo to surrender
to the Del Rosarios that portion of land covered by TCT 34797 occupied by
the former, based on the former's representation that he had already vacated
the same prior to the commencement of this case. However, the appellate
court upheld its declaration that the Del Rosarios are the rightful owners of
the dried-up river bed. Hence, the petition for review.
On 17 May 1976, the Supreme Court issued a resolution requiring the
Solicitor General to comment on the petition in behalf of the Director of
Lands as an indispensable party in representation of the Republic of the
Philippines, and who, not having been impleaded, was subsequently
considered impleaded as such in the Courts resolution of 10 September
1976.
In his Motion to Admit Comment, the Solicitor General manifested that
pursuant to a request made by this office with the Bureau of Lands to
conduct an investigation, the Chief of the Legal Division of the Bureau sent
a communication informing him that the records of his office do not show
that Mario Ronquillo, Rosendo del Rosario, Amparo del Rosario or
Florencia del Rosario has filed any public land application covering parcels
of land situated at Estero Calubcub, Manila as verified by its Records
Division. The position taken by the Director of Lands (in his comment on 3
September 1978, in the 4 May 1989 reply, and 17 August 1989 comment)
explicates that Article 370 of the old Code does not apply as the abandoned
riverbed as such was abandoned not by the natural change in the course of
the river but by the drying up of the bed caused by human activity. The
Director of Lands also added that the del Rosario and Ronquillo have
claimed pending sales applications over the dried portion of the estero
(admitting thus that it is public land under the authority of the Bureau of
Lands), which were rejected as the Manila City Engineers Office needed the
dried portion of the estero for drainage purposes. On 29 June 1979,
Florencia del Rosario manifested to this Court that Rosendo, Amparo and
Casiano del Rosario have all died, and that she is the only one still alive
among the private respondents in the case. In a resolution dated 20 January
1988, the Court required Ronquillo to implead one Benjamin Diaz pursuant

to the former's manifestation that the land adjacent to the dried-up river bed
has already been sold to the latter, and the Solicitor General was also
required to inquire into the status of the investigation being conducted by
the Bureau of Lands. In compliance therewith, the Solicitor General
presented a letter from the Director of Lands to the effect that neither of the
parties involved in the present case has filed any public land application. On
3 April 1989, Ronquillo filed an Amended Petition for Certiorari, this time
impleading the Development Bank of the Philippines (DBP) which
subsequently bought the property adjacent to the dried-up river bed from
Benjamin Diaz. In its resolution dated 10 January 1990, the Court ordered
that DBP be impleaded as a party respondent. On 13 September 1990, DBP
filed a Manifestation/ Compliance stating that DBP's interest over TCT
139215 issued in its name (formerly TCT 34797 of the Del Rosarios and
TCT 135170 of Benjamin Diaz) has been transferred to Spouses Victoriano
and Pacita A. Tolentino pursuant to a Deed of Sale dated 11 September
1990.
The Supreme Court reversed and set aside the remaining effective portion
of the appealed decision which declares Del Rosario as riparian owner of the
dried-up portion of Estero Calubcub.
1. Findings of appellate court conclusive to the Supreme Court;
Exceptions The jurisdiction of the Supreme Court in cases brought to it
from the Court of Appeals in a petition for certiorari under Rule 45 of the
Rules of Court is limited to the review of errors of law, and that said
appellate court's finding of fact is conclusive upon this Court. However,
there are certain exceptions, such as (1) when the conclusion is a finding
grounded entirely on speculation, surmises or conjectures; (2) when the
inference made is manifestly absurd, mistaken or impossible; (3) when there
is grave abuse of discretion in the appreciation of facts; (4) when the
judgment is premised on a misapprehension of facts; (5) when the findings
of fact are conflicting; and (6) when the Court of Appeals in making its
findings went beyond the issues of the case and the same is contrary to the
admissions of both appellant and appellee.
2. Evidence reveal change in the course of river not caused by natural
forces A careful perusal of the evidence presented by both parties in the
case at bar will reveal that the change in the course of Estero Calubcub was
caused, not by natural forces, but due to the dumping of garbage therein by
the people of the surrounding neighborhood. There is nothing in the
testimony of lone witness Florencia del Rosario nor in said relocation plan
which would indicate that the change in the course of the estero was due to
the ebb and flow of the waters. On the contrary, the testimony of the
witness belies such fact, while the relocation plan is absolutely silent on the
matter. The inescapable conclusion is that the dried-up portion of Estero
Calubcub was occasioned, not by a natural change in the course of the
waters, but through the active intervention of man.
3. Article 370 of the old Civil Code applies only to natural change in
the course of the waters; Law clear, no room for interpretation Article
370 of the old Civil Code which provides that "the beds of rivers, which are
abandoned because of a natural change in the course of the waters, belong to
the owners of the riparian lands throughout the respective length of each. If
the abandoned bed divided tenements belonging to different owners the new
dividing line shall be equidistant from one and the other." The law is clear
and unambiguous; and leaves no room for interpretation. Article 370 applies
only if there is a natural change in the course of the waters. The rules on
alluvion do not apply to man-made or artificial accretions 23 nor to
accretions to lands that adjoin canals or esteros or artificial drainage systems.
Considering the finding that the dried-up portion of Estero Calubcub was
actually caused by the active intervention of man, it follows that Article 370

does not apply to the present case and, hence, the Del Rosarios cannot be
entitled thereto supposedly as riparian owners.
4. Dried up portion of Estero Calubcub belongs to public domain;
Land used for drainage purposes cannot be subject of a miscellaneous
sales application The dried-up portion of Estero Calubcub should thus be
considered as forming part of the land of the public domain which cannot
be subject to acquisition by private ownership. This is made more evident in
the letter, dated 28 April 1989, of the Chief of the Legal Division of the
Bureau of Lands, stating that the alleged application filed by Ronquillo no
longer exists in its records as it must have already been disposed of as a
rejected application for the reason that other applications covering Estero
Calubcub, Sampaloc, Manila for areas other than that contested in the
presented case, were all rejected by the office because of the objection
interposed by the City Engineer's office that they need the same land for
drainage purposes. Since the land is to be used for drainage purposes the
same cannot be the subject of a miscellaneous sales application.
5. Del Rosario and Ronquillo estopped from claiming land is not
public land The fact that Ronquillo and del Rosario filed their sales
applications with the Bureau of Lands covering the subject dried-up portion
of Estero Calubcub cannot but be deemed as outright admissions by them
that the same is public land. They are now estopped from claiming
otherwise.
GOLDCREST REALTY V. CYPRESS GARDEN COND
Facts:
The antecedent facts in this case are as follows:
Petitioner Goldcrest Realty Corporation (Goldcrest) is the developer of Cypress Gardens,
a ten-storey building located at Herrera Street, Legaspi Village, Makati City. OnApril 26, 1977,
Goldcrest executed a Master Deed and Declaration of Restrictions [3] which
constituted Cypress Gardens into a condominium project and incorporated respondent Cypress
Gardens Condominium Corporation (Cypress) to manage the condominium project and to hold
title to all the common areas. Title to the land on which the condominium stands was transferred
to Cypress under Transfer Certificate of Title No. S-67513. But Goldcrest retained ownership of
the two-level penthouse unit on the ninth and tenth floors of the condominium registered under
Condominium Certificate of Title (CCT) No. S-1079 of the Register of Deeds
of Makati City. Goldcrest and its directors, officers, and assigns likewise controlled the
management and administration of the Condominium until 1995.
Following the turnover of the administration and management of the Condominium to the
board of directors of Cypress in 1995, it was discovered that certain common areas pertaining
to Cypress were being occupied and encroached upon by Goldcrest. Thus, in 1998, Cypress filed a
complaint with damages against Goldcrest before the Housing and Land Use Regulatory Board
(HLURB), seeking to compel the latter to vacate the common areas it allegedly encroached on and
to remove the structures it built thereon. Cypresssought to remove the door erected by Goldcrest
along the stairway between the 8th and 9th floors, as well as the door built in front of the 9 th floor
elevator lobby, and the removal of the cyclone wire fence on the roof deck. Cypress likewise
prayed that Goldcrest pay damages for its occupation of the said areas and for its refusal to remove
the questioned structures.
For its part, Goldcrest averred that it was granted the exclusive use of the roof decks
limited common area by Section 4(c) [4] of the condominiums Master Deed. It likewise argued
that it constructed the contested doors for privacy and security purposes, and that, nonetheless,
the common areas occupied by it are unusable and inaccessible to other condominium unit
owners.
Upon the directive of HLURB Arbiter San Vicente, two ocular inspections [5] were
conducted on the condominium project. During the first inspection, it was found that Goldcrest

enclosed and used the common area fronting the two elevators on the ninth floor as a storage
room. It was likewise discovered that Goldcrest constructed a permanent structure which
encroached 68.01 square meters of the roof decks common area.[6]
During the second inspection, it was noted that Goldcrest failed to secure an alteration
approval for the said permanent structure.
In his Decision[7] dated December 2, 1999, Arbiter San Vicente ruled in favor
of Cypress. He required Goldcrest, among other things, to: (1) remove the questioned structures,
including all other structures which inhibit the free ingress to and egress from the condominiums
limited and unlimited common areas; (2) vacate the roof decks common areas and to pay actual
damages for occupying the same; and (3) pay an administrative fine for constructing a second
penthouse and for making an unauthorized alteration of the condominium plan.
On review, the HLURB Special Division modified the decision of Arbiter San Vicente. It
deleted the award for actual damages after finding that the encroached areas were not actually
measured and that there was no evidentiary basis for the rate of compensation fixed by Arbiter
San Vicente. It likewise held that Cypress has no cause of action regarding the use of the roof
decks limited common area because only Goldcrest has the right to use the same. The dispositive
portion of the decision reads:
WHEREFORE, in view of the foregoing, the decision of the office [is]
modified as follows:
1.
Directing respondent to immediately remove any or all structures
which obstruct the use of the stairway from the eighth to tenth floor, the passage
and use of the lobbies at the ninth and tenth floors of the Cypress Gardens
Condominium; and to remove any or all structures that impede the use of the
unlimited common areas.
2.
Ordering the respondent to pay an administrative fine of P10,000.00
for its addition of a second penthouse and/or unauthorized alteration of the
condominium plan.
All other claims are hereby dismissed.
SO ORDERED.[8]
Aggrieved, Cypress appealed to the Office of the President. It questioned the deletion of
the award for actual damages and argued that the HLURB Special Division in effect ruled that
Goldcrest could erect structures on the roof decks limited common area and lease the same to
third persons.
The Office of the President dismissed the appeal. It ruled that the deletion of the award
for actual damages was proper because the exact area encroached by Goldcrest was not
determined. It likewise held that, contrary to the submissions of Cypress, the assailed decision
did not favor the building of structures on either the condominiums limited or unlimited common
areas. The Office of the President stressed that the decision did not only order Goldcrest to
remove the structures impeding the use of the unlimited common areas, but also fined it for
making unauthorized alteration and construction of structures on the condominiums roof deck.
[9]
The dispositive portion of the decision reads:
WHEREFORE, premises considered, the appeal of Cypress Gardens
Corporation
is
hereby DISMISSED and
the
decision
of
the
Board a quo dated May 11, 2000 is herebyAFFIRMED.
SO ORDERED.[10]
Cypress thereafter elevated the matter to the Court of Appeals, which partly granted its
appeal. The appellate court noted that the right of Goldcrest under Section 4(c) of the Master
Deed for the exclusive use of the easement covering the portion of the roof deck appurtenant to
the penthouse did not include the unrestricted right to build structures thereon or to lease such
area to third persons. Thus the appellate court ordered the removal of the permanent structures
constructed on the limited common area of the roof deck.The dispositive portion of the decision
reads:
WHEREFORE, the petition is PARTIALLY GRANTED. The Decision
of the Office of the President dated June 2, 2003 is hereby AFFIRMED with
modification. Respondent Goldcrest Realty Corporation is further directed to
remove the permanent structures constructed on the limited common area of the
roof deck.

SO ORDERED.[11]
The parties separately moved for partial reconsideration but both motions were denied.
Hence this petition, raising the following issues:
I.
[WHETHER OR NOT] THE APPELLATE COURT ERRED IN RULING THAT
GOLDCREST BUILT AN OFFICE STRUCTURE ON A SUPPOSED
ENCROACHED AREA IN THE OPEN SPACE OF THE ROOF DECK.
II.
[WHETHER OR NOT] THE APPELLATE COURT ERRED IN RULING THAT
PETITIONER IMPAIRED THE EASEMENT ON THE PORTION OF THE
ROOF DECK DESIGNATED AS A LIMITED COMMON AREA.[12]
Anent the first issue, Goldcrest contends that since the areas it allegedly encroached
upon were not actually measured during the previous ocular inspections, the finding of the Court
of Appeals that it built an office structure on the roof decks limited common area is erroneous
and that its directive to remove the permanent structures [13]constructed on the limited common
area of the roof deck is impossible to implement.
On the other hand, Cypress counters that the Court of Appeals finding is correct. It also
argues that the absence of such measurement does not make the assailed directive impossible to
implement because the roof decks limited common area is specifically identified by Section 4(c)
of the Master Deed, which reads:
Section. 4. The Limited Common Areas. Certain parts of the common
areas are to be set aside and reserved for the exclusive use of certain units and
each unit shall have appurtenant thereto as exclusive easement for the use of such
limited areas:
xxxx
(c) Exclusive use of the portion of the roof deck (not shaded red in sheet
10 of Annex B) by the Penthouse unit on the roof deck.[14]
xxxx
We rule in favor of Cypress. At this stage of the proceedings, the failure to measure the
supposed encroached areas is no longer relevant because the award for actual damages is no
longer in issue. Moreover, a perusal of the records shows that the finding of the Court of Appeals
that Goldcrest built an office structure on the roof decks limited common area is supported by
substantial evidence and established facts, to wit: (1) the ocular inspection reports submitted by
HLURB Inspector Edwin D. Aquino; (2) the fact that the second ocular inspection of the roof
deck was intended to measure the actual area encroached upon by Goldcrest; [15] (3) the fact that
Goldcrest had been fined for building a structure on the limited common area; [16] and (4) the fact
that Goldcrest neither denied the structures existence nor its encroachment on the roof decks
limited common area.
Likewise, there is no merit in Goldcrests submission that the failure to conduct an actual
measurement on the roof decks encroached areas makes the assailed directive of the Court of
Appeals impossible to implement. As aptly pointed out by Cypress, the limited common area of
the roof deck is specifically identified by Section 4(c) of the Master Deed.
Anent the second issue, Goldcrest essentially contends that since the roof decks
common limited area is for its exclusive use, building structures thereon and leasing the same to
third persons do not impair the subject easement.
For its part, Cypress insists the said acts impair the subject easement because the same
are already beyond the contemplation of the easement granted to Goldcrest.
The question of whether a certain act impairs an easement is undeniably one of fact,
considering that its resolution requires us to determine the acts propriety in relation to the character
and purpose of the subject easement.[17] In this case, we find no cogent reason to overturn the
similar finding of the HLURB, the Office of the President and the Court of Appeals that Goldcrest
has no right to erect an office structure on the limited common area despite its exclusive right to
use the same. We note that not only did Goldcrests act impair the easement, it also illegally altered
the condominium plan, in violation of Section 22[18] of Presidential Decree No. 957.[19]
The owner of the dominant estate cannot violate any of the following prescribed
restrictions on its rights on the servient estate, to wit: (1) it can only exercise rights necessary for
the use of the easement;[20] (2) it cannot use the easement except for the benefit of the immovable

originally contemplated;[21] (3) it cannot exercise the easement in any other manner than that
previously established;[22] (4) it cannot construct anything on it which is not necessary for the use
and preservation of the easement;[23] (5) it cannot alter or make the easement more burdensome;
[24]
(6) it must notify the servient estate owner of its intention to make necessary works on the
servient estate;[25] and (7) it should choose the most convenient time and manner to build said
works so as to cause the least convenience to the owner of the servient estate. [26] Any violation of
the above constitutes impairment of the easement.
Here, a careful scrutiny of Goldcrests acts shows that it breached a number of the
aforementioned restrictions. First, it is obvious that the construction and the lease of the office
structure were neither necessary for the use or preservation of the roof decks limited
area. Second, the weight of the office structure increased the strain on the condominiums
foundation and on the roof decks common limited area, making the easement more burdensome
and adding unnecessary safety risk to all the condominium unit owners. Lastly, the construction
of the said office structure clearly went beyond the intendment of the easement since it illegally
altered the approved condominium project plan and violated Section 4 [27] of the condominiums
Declaration of Restrictions.[28]
WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision
dated September 29, 2005 of the Court of Appeals in CA G.R. SP. No. 79924 is
herebyAFFIRMED. Costs against the petitioner.
SPOUSES VICTOR VALDEZ and JOCELYN VALDEZ v. SPOUSES FRANCISCO
TABISULA and CARIDAD TABISULA
560 SCRA 332 (2008), SECOND DIVISION (Carpio Morales, J.)
The requisites provided in conferment of a legal easement of right of way under the Civil Law
must be complied and such existence be proven.
FACTS: Spouses Victor and Jocelyn Valdez bought from Spouses Francisco and Caridad
Tabisula a parcel of land located in San Fernando, La Union. The absolute sale indicated a right
of way.
Spouses Tabisula subsequently built a concrete wall on the western side of the subject property.
Believing that that side is the intended road right of way mentioned in the deed, Spouses Valdez
opposed such act. Conciliation was then initiated. Spouses Tabisula failed to attend the
conferences scheduled. This prompted Spouses Valdez to file, after more than six years of
execution of the deed, a complaint for Specific Performance with Damages.
Spouses Valdez contended that they purchased the subject property on the assurance of providing
them a road right of way. On the other hand, spouses Tabisula averred that the 2-meter easement
should be taken from the western portion of the subject property and not theirs.
The trial court dismissed the petition. On appeal, the Court of Appeals affirmed the dismissal.
ISSUES: Whether or not Spouses Valdez are entitled to the right of way as indicated in the
absolute sale
HELD: Article 1358 of the Civil Code provides that any transaction involving the sale or
disposition of real property must be in writing. The stipulation harped upon by Spouses Valdez
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 way is not included in this sale could only mean that the parties would
have to enter into a separate and distinct agreement for the purpose. The use of the word shall,
which is imperative or mandatory in its ordinary signification, should be construed as merely
permissive where, as in the case at bar, no public benefit or private right requires it to be given an
imperative meaning.
As found, however, by the trial court, which is supported by the Sketch of the location of the lots
of the parties and those adjoining them, a common evidence of the parties, Spouses Valdez and

their family are also the owners of two properties adjoining the subject property which have
access to two public roads or highways.
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 estates own acts; (4) the right of way claimed is at the point least
prejudicial to the servant estate; and (5) to the extent consistent with the foregoing rule, the
distance from the dominant estate to a public highway may be the shortest. The onus of proving
the existence of these prerequisites lies on the owner of the dominant estate, herein the spouses
Valdez.
Since Spouses Valdez then have more than adequate passage to two public roads, they have no
right to demand the grant by spouses Tabisula of an easement on the western side of Spouses
Tabisulas lot.
QUINTANILLA VS PEDRO ABANGAN AND DARYLS COLLECTION INTL.
Facts:
This controversy flows from a case for Easement of Right of Way filed by petitioner
Apolinardito C. Quintanilla (Apolinardito) and his mother, petitioner Perfecta C. Quintanilla
(Perfecta) against respondent Pedro Abangan (Pedro) and respondent Daryl's Collection
International, Inc. (DARYL'S).
Sometime in the 1960s, Perfecta bought Lot No. 3771-B-1-A, with an area of 2,244 square
meters, located at Inayawan, Cebu City (the dominant estate) from one Dionisio Abasolo, who
formerly owned all the properties therein. Thereafter, Perfecta donated the dominant estate to
Apolinardito, who is now the registered owner thereof. [4] Petitioners own QC Rattan Inc., a
domestic corporation engaged in the manufacture and export of rattan-made furniture. In the
conduct of their business, they use vans to haul and transport raw materials and finished
products. As they wanted to expand their business and construct a warehouse on their property
(the dominant estate), they asked for a right of way from Pedro sometime in April 1994.
However, it appears that Pedro, who was the owner of Lot No. 3771-A-1, containing an area of
1,164 square meters[5] (the servient estate) and a lot near the dominant estate, sold the same to
DARYL'S on March 24, 1994,[6] and thereafter, DARYL'S constructed a warehouse over the
servient estate, enclosing the same with a concrete fence.
Petitioners, thus, sought the imposition of an easement of right of way, six (6) meters in width, or
a total area of 244 square meters, over the servient estate.
On June 21, 2000, the RTC dismissed the case for lack of merit. The RTC held that petitioners
failed to establish that the imposition of the right of way was the least prejudicial to the servient
estate. The RTC noted that there is already a concrete fence around the area and that six (6)
meters from the said concrete fence was a concrete warehouse. Thus, substantial damage and
substantial reduction in area would be caused the servient estate. Moreover, the RTC observed
that petitioners' insistence on passing through the servient estate would make for easy and
convenient access to the main thoroughfare for their vans. Otherwise, if the right of way were to
be constituted on any of the other surrounding properties, their vans would have to make a turn.
On this premise, the RTC opined that mere convenience to the dominant estate was not
necessarily the basis for setting up a compulsory easement of right of way.
Aggrieved, petitioners went to the CA on appeal.

In its Decision dated April 21, 2003, the CA affirmed the RTC Decision, holding that the
criterion of least prejudice to the servient estate must prevail over the shortest distance. A longer
way may, thus, be established to avoid injury to the servient tenement, such as when there are
constructions or walls which can be avoided by a round-about way, [7] as in this case. Petitioners
filed a Motion for Reconsideration,[8] but the same was denied in the CA
Resolution[9] dated September 24, 2003.
Hence, the instant petition based on the following grounds:
a) IN A COMPULSORY EASEMENT OF RIGHT OF WAY, AS SET
FORTH IN THE PRECONDITIONS UNDER ARTICLES 649[10] AND 650[11] OF
THE NEW CIVIL CODE, THE DETERMINATION OF THE LEAST
PREJUDICIAL OR LEAST DAMAGE TO THE SERVIENT ESTATE SHOULD
BE AT THE TIME OF THE FILING OF THE ORIGINAL COMPLAINT AND
NOT AFTER THE FILING, ESPECIALLY WHEN THE OWNER OF THE
SERVIENT ESTATE IS GUILTY OF ABUSE OF RIGHTS CONSIDERED AS
THE GREATEST OF ALL POSSIBLE WRONGS OR BAD FAITH BY
CONSTRUCTING A CONCRETE FENCE AND WAREHOUSE THEREON
THROUGH MISREPRESENTATION TO THE OFFICE OF THE CEBU CITY
BUILDING OFFICIAL THAT IT HAD GRANTED A RIGHT OF WAY OF SIX
(6) METERS TO PETITIONERS; AND
b) WHETHER OR NOT COMPLIANCE WITH THE PRECONDITIONS SET
FORTH IN ARTICLES 649 AND 650 OF THE NEW CIVIL CODE
IS SUPERIOR TO THE MERE CONVENIENCE RULE AGAINST THE
OWNER OF THE DOMINANT ESTATE.
Petitioners claim that DARYL'S constructed the concrete fence only after petitioners filed the
case for an Easement of Right of Way against Pedro on May 27, 1994. They submit that the
criterion of least prejudice should be applied at the time of the filing of the original complaint;
otherwise, it will be easy for the servient estate to evade the burden by subsequently constructing
structures thereon in order to increase the damage or prejudice. [12] Moreover, they pointed out
that a Notice of Lis Pendens was annotated on Pedro's title. Thus, petitioners aver that DARYL'S
is in bad
faith and is guilty of abuse of rights as provided under Article 19[13] of the New Civil Code.[14]
On the other hand, DARYL'S counters that petitioners belatedly imputed bad faith to it since
petitioners' pre-trial brief filed with the RTC contained no allegation of bad faith or
misrepresentation. Moreover, DARYL'S reiterates its position that establishing a right of way
over the servient estate would cause substantial damage, considering that a concrete fence has
already been erected thereon. Most importantly, DARYL'S submits that petitioners can have
adequate ingress to or egress from the dominant estate by passing through other
surrounding vacant lots. Lastly,
DARYL'S points out that when Perfecta bought the dominant estate from Dionisio Abasolo, the
surrounding lots were also owned by the latter.[15]
For his part, Pedro manifests that he is adopting all the defenses invoked by DARYL'S in the
belief that he is no longer a party to the instant case as he had already sold the servient estate to
DARYL'S and a title already issued in the latter's name.[16]
The instant petition lacks merit.
We hold that Apolinardito as owner of the dominant estate together with Perfecta failed
to discharge the burden of proving the existence and concurrence of all the requisites in order to
validly claim a compulsory right of way against respondents.[17]
It should be remembered that to be entitled to a legal easement of right of way, the following
requisites must be satisfied: (1) the dominant estate is surrounded by other immovables and has

no adequate outlet to a public highway; (2) proper indemnity has been paid; (3) the isolation was
not due to acts of the proprietor of the dominant estate; and (4) the right of way claimed is at the
point least prejudicial to the servient estate.[18]
The fourth requisite is absent.
We are in full accord with the ruling of the CA when it aptly and judiciously held, to wit:
As provided for under the provisions of Article 650 of the New Civil Code, the
easement of right of way shall be established at the point least prejudicial to the
servient estate, and, insofar as consistent with this rule, where the distance from
the dominant estate to a public highway may be the shortest. Where there are
several tenements surrounding the dominant estate, and the easement may be
established on any of them, the one where the way is shortest and will cause the
least damage should be chosen. But if these two circumstances do not concur in a
single tenement, as in the instant case, the way which will cause the least damage
should be used, even if it will not be the shortest. The criterion of least prejudice
to the servient estate must prevail over the criterion of shortest distance. The
court is not bound to establish what is the shortest; a longer way may be
established to avoid injury to the servient tenement, such as when there are
constructions or walls which can be avoided by a round-about way, as in the case
at bar.
As between a right of way that would demolish a fence of strong materials to
provide ingress and egress to a public highway and another right of way which
although longer will only require a van or vehicle to make a turn, the second
alternative should be preferred. Mere convenience for the dominant estate is not
what is required by law as the basis for setting up a compulsory easement. Even in
the face of necessity, if it can be satisfied without imposing the easement, the
same should not be imposed.
Finally, worthy of note, is the undisputed fact that there is already a newly opened
public road barely fifty (50) meters away from the property of appellants, which
only shows that another requirement of the law, that is, there is no adequate outlet,
has not been met to establish a compulsory right of way.
Such pronouncement by the CA is in line with this Court's ruling in Quimen v. Court of Appeals,
[19]
where we held that as between a right of way that would demolish a store of strong materials
to provide egress to a public highway, and another right of way which, although longer, will only
require an avocado tree to be cut down, the second alternative should be preferred.
As a rule, findings of fact of the CA, affirming those of the trial court,
are generally final and conclusive on this Court.[20] While this Court has recognized several
exceptions[21] to this rule, none of these exceptions finds application in this case. Ergo, we find
no cogent reason and reversible error to disturb the unanimous findings of the RTC and the CA
as these are amply supported by the law and evidence on record.
WHEREFORE, the instant Petition is DENIED for lack of merit. The assailed Court of Appeals
Decision, dated April 21, 2003, and Resolution dated September 24, 2003 are
hereby AFFIRMED. Costs against the petitioners.