PRIVATIZATION AND MANAGEMENT OFFICE, Petitioner, v. LEGASPI
" It also
TOWERS 300, INC.,Respondent.
DECISION
PERALTA, J.:
This is a Petition for Review on Certiorariseeking to annul and set aside the
Decision1 dated February 16, 2001, of the Court of Appeals (CA) in CA-G.R.
CV No. 48984, affirming the Decision of the Regional Trial Court (RTC).
The factual and procedural antecedents are as follows:
Caruff Development Corporation owned several parcels of land along the
stretch of Roxas Boulevard, Manila. Among them were contiguous lots
covered by Transfer Certificate of Title (TCT) Nos. 120311, 120312, 120313,
and 127649 (now TCT No. 200760).
Sometime in December 1975, Caruff obtained a loan from the Philippine
National Bank (PNB) to finance the construction of a 21-storey condominium
along Roxas Boulevard.2 The loan accommodation was secured by a real
estate mortgage over three (3) parcels of land covered by TCT Nos. 120311,
120312, and 120313,3 where Caruff planned to erect the condominium.
In 1979, Caruff started constructing a multi-storey building on the mortgaged
parcels of land. Along with the other appurtenances of the building
constructed by Caruff, it built a powerhouse (generating set) and two sump
pumps in the adjacent lot covered by TCT No. 127649 (now TCT No.
200760).
After the completion of the condominium project, it was constituted pursuant
to the Condominium Act (Republic Act No. 4726), as the Legaspi Towers
300, Inc.
However, for Caruff's failure to pay its loan with PNB, the latter foreclosed
the mortgage and acquired some of the properties of Caruff at the sheriff's
auction sale held on January 30, 1985.4
Thereafter, Proclamation No. 505 was issued. It was aimed to promote
privatization "for the prompt disposition of the large number of non-
performing assets of the government financial institutions, and certain
government-owned and controlled corporations, which have been found
unnecessary or inappropriate for the government sector to maintain.
provided for the creation of the Asset Privatization Trust (APT).
By virtue of Administrative Order No. 14 and the Deed of Transfer executed
by PNB, the National Government, thru the APT, became the assignee and
transferee of all its rights and titles to and interests in its receivables with
Caruff, including the properties it acquired from the foreclosure of Caruff's
mortgage.
Meanwhile, Caruff filed a case against PNB before the RTC of Manila,
Branch 2, whereby Caruff sought the nullification of PNB's foreclosure of its
properties.6 The case was docketed as Civil Case No. 85-29512.
A Compromise Agreement7 dated August 31, 1988 was later entered into by
Caruff, PNB, and the National Government thru APT. The parties agreed,
among other things, that Caruff would transfer and convey in favor of the
National Government, thru the APT, the lot covered by TCT No. 127649 (now
TCT No. 200760), where it built the generating set and sump pumps.
On September 9, 1988, the RTC rendered a Decision approving the
Compromise Agreement executed and submitted by the parties. The
dispositive portion of said Decision reads:
x x x and finding the foregoing compromise agreement to be well-taken, the
Court hereby approves the same and renders judgment in accordance with
the terms and conditions set forth [sic] therein and enjoins the parties to
comply strictly therewith.
SO ORDERED.8
Thus, by virtue of the Decision, the subject property was among those
properties that were conveyed by Caruff to PNB and the National
Government thru APT.
On July 5, 1989, respondent filed a case for Declaration of the existence of
an easement before the RTC of Manila, docketed as Spec. Proc. No. 89-
49563. Respondent alleged that the act of Caruff of constructing the
powerhouse and sump pumps on its property constituted a voluntary
easement in favor of the respondent. It prayed, among other things, that
judgment be rendered declaring the existence of an easement over the
portion of the property covered by TCT No. 127649 (now TCT No. 200760)
that was being occupied by the powerhouse and the sump pumps in its favor,
1
and that the Register of Deeds of Manila annotate the easement at the back
of said certificate of title.9
In its Answer with Counterclaim and Cross-claim,10 APT alleged that
respondent had no cause of action against it, because it was but a mere
transferee of the land. It acquired absolute ownership thereof by virtue of the
Compromise Agreement in Civil Case No. 85-2952, free from any liens
and/or encumbrances. It was not a privy to any transaction or agreement
entered into by and between Caruff, respondent, and the bank. It further
alleged that the continued use of the subject property by respondent and the
condominium owners without its consent was an encroachment upon its
rights as absolute owner and for which it should be properly compensated.
On January 12, 1995, after trial on the merits, the RTC rendered a
Decision11 declaring the existence of an easement over the portion of the
land covered by TCT No. 127649 (TCT No. 200760), the decretal portion of
which reads:
WHEREFORE, judgment is hereby rendered in favor of the petitioner and
against the respondents hereby declaring the existence of an easement over
the portion of land covered by TCT No. 200760 (previously No. 127649)
occupied at present [by the] powerhouse and sump pumps nos. 1 and 2 only,
of Legaspi Towers 300, in favor of Legaspi Towers 300, Incorporated. The
Register of Deeds of Manila is, likewise, hereby directed to annotate this
easement at the back of the said certificate of title. The counterclaim and
cross-claim are dismissed accordingly.
SO ORDERED.
Aggrieved, APT sought recourse before the CA in CA-G.R. CV No. 48984.
Subsequently, the term of existence of APT expired and, pursuant to Section
2, Article III of Executive Order No. 323, the powers, functions, duties and
responsibilities of APT, as well as all the properties, real or personal assets,
equipments and records held by it and its obligations and liabilities that were
incurred, was transferred to petitioner Privatization and Management Office
(PMO). Thus, the PMO substituted APT in its appeal.
On February 16, 2001, finding no reversible error on the part of the RTC, the
CA rendered a Decision12affirming the decision appealed from. PMO filed a
Motion for Reconsideration, but it was denied in the Resolution13 dated May
3, 2001.
Hence, the present petition assigning the following errors:
I
THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE COURT A QUO IN FINDING THAT
[THE] PRESENCE OF THE GENERATOR SET (GENERATING SET) AND
SUMP PUMPS CONSTITUES AN EASEMENT.
II
THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE COURT A QUO IN DECLARING THE
EXISTENCE OF AN EASEMENT OVER THE PORTION OF LAND
COVERED BY TCT NO. [200760] OCCUPIED BY THE GENERATOR SET
AND SUMP PUMPS NOS. 1 AND 2, PURSUANT TO ARTICLE 688 OF THE
CIVIL CODE.
III
THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN
AFFIRMING THE DECISION OF THE COURT A QUO IN NOT REQUIRING
THE RESPONDENT-PETITIONER TO PAY ANY COMPENSATION TO
PETITIONER, THE OWNER OF THE LAND, FOR THE USE OF ITS
PROPERTY.14
Petitioner argues that the presence of the generator set and sump pumps
does not constitute an easement. They are mere improvements and/or
appurtenances complementing the condominium complex, which has not
attained the character of immovability. They were placed on the subject
property as accessories or improvements for the general use and comfort of
the occupants of the condominium complex.
Petitioner maintains that, as the generator set and sump pumps are
improvements of the condominium, the same should have been removed
after Caruff undertook to deliver the subject property free from any liens and
encumbrances by virtue of the Decision of the RTC in Civil Case No. 85-
29512 approving the parties' Compromise Agreement. It adds that, in
alienating the property in favor of APT/PMO, Caruff could not have intended
to include as encumbrance the voluntary easement.
Petitioner posits that respondent failed to present any evidence to prove the
existence of the necessary requisites for the establishment of an easement.
2
There is no concrete evidence to show that Caruff had a clear and
unequivocal intention to establish the placing of the generator set and sump
pumps on the subject property as an easement in favor of respondent.
Lastly, petitioner contends that respondent is a "squatter" for having
encroached on the former's property without its consent and without paying
any rent or indemnity. Petitioner submits that respondent's presence on the
subject property is an encroachment on ownership and, thus, cannot be
properly considered an easement. It adds that an easement merely produces
a limitation on ownership, but the general right of ownership of the servient
tenement must not be impaired so as to amount to a taking of property.
When the benefit being imposed is so great as to impair usefulness of the
servient estate, it would amount to a cancellation of the rights of the latter.
Petitioner insists that, for having unjustly enriched itself at the expense of the
National Government and for encroaching on the latter's rights as the
absolute owner, respondent should rightfully compensate the National
Government for the use of the subject property which dates back to August
28, 1989 up to the present.rbl r l l lbrr
For its part, respondent argues that it was the intention of Caruff to have a
voluntary easement in the subject property and for it to remain as such even
after the property was subsequently assigned to APT. It was Caruff who
constructed the generating set and sump pumps on its adjacent property for
the use and benefit of the condominium adjoining it. Also, the manner in
which the sump pumps were installed is permanent in nature, since their
removal and transfer to another location would render the same worthless
and would cut off the supply of electricity and water to the condominium and
its owners.
Respondent maintains that petitioner cannot assume that Caruff intended to
renounce the voluntary easement over the subject property by virtue of the
Compromise Agreement, since such defense can only be presented by
Caruff and not the petitioner. It added that petitioner had actual notice of the
presence of the generating set and sump pumps when they were negotiating
with Caruff regarding the compromise agreement and at the time the subject
property was transferred to petitioner. Also, petitioner cannot claim the
payment of rent, considering that there was no written demand for
respondent to pay rent or indemnity.
Respondent submits that the mandate of petitioner to privatize or dispose of
the non-performing assets transferred to it does not conflict with the issue of
the declaration of the easement over the subject property, considering that
petitioner is not prevented from privatizing the same despite the presence of
the voluntary easement.
The petition is meritorious.
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."15 The statutory basis of
this right is Article 613 of the Civil Code, which provides:
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 sources of easements: by law or by the will of the owners.
Article 619 of the Civil Code states:
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.
In the present case, neither type of easement was constituted over the
subject property.
In its allegations, respondent claims that Caruff constituted a voluntary
easement when it constructed the generating set and sump pumps over the
disputed portion of the subject property for its benefit. However, it should be
noted that when the appurtenances were constructed on the subject
property, the lands where the condominium was being erected and the
subject property where the generating set and sump pumps were
constructed belonged to Caruff. Therefore, Article 613 of the Civil Code does
not apply, since no true easement was constituted or existed, because both
properties were owned by Caruff.
Also, Article 624 of the Civil Code is controlling, as it contemplates a situation
where there exists an apparent sign of easement between two estates
established or maintained by the owner of both. The law 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,
3
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.16
From the foregoing, it can be inferred that when the owner of two properties
alienates one of them and an apparent sign of easement exists between the
two estates, entitlement to it continues, unless there is a contrary agreement,
or the indication that the easement exists is removed before the execution of
the deed.
In relation thereto, the Compromise Agreement, as approved by the court,
clearly states, among other things, that:
xxx
2.0 That in consideration of the covenants hereunder stipulated, plaintiff
[Caruff] Development Corporation (CDC), hereby terminates the instant case
against defendants Philippine National Bank (PNB) and the National
Government/APT, and hereby:
2.1 Assigns, transfers and conveys in favor of defendant National
government thru APT, CDC's rights, title and interest in the Maytubig
property, situated at the back of the Legaspi Towers 300 Condominium,
consisting of seven (7) contiguous lots with an aggregate area of 1,504.90
square meters, covered by the following Transfer Certificate of Title, viz: TCT
No. 23663 - Pasay City Registry; TCT No. 142497 - Metro Manila 1 Registry;
TCT No. 142141 - Metro Manila 1 Registry; TCT No. 127649 - Metro Manila
1 Registry; x x x; all titles, free from any and all liens and encumbrances, to
be delivered, and the necessary papers and documents to be turned
over/executed to effect transfer in favor of the National Government/APT,
upon approval of this Compromise Agreement;
xxx x.17
Thus, when the subject property was assigned to the National Government
thru the APT, no easement arose or was voluntarily created from the transfer
of ownership, considering that the parties, more particularly, Caruff, pledged
that it was assigning, transferring, and conveying the subject property in
favor of the National Government thru the APT "free from any and all liens
and encumbrances."
Compromise agreements are contracts, whereby the parties undertake
reciprocal obligations to resolve their differences, thus, avoiding litigation, or
put an end to one already commenced.18 As a contract, when the terms of
the agreement are clear and explicit that they do not justify an attempt to
read into it any alleged intention of the parties; the terms are to be
understood literally, just as they appear on the face of the
contract.19 Considering that Caruff never intended to transfer the subject
property to PMO, burdened by the generating set and sump pumps,
respondent should remove them from the subject property.
As regards PMO's claim for rent, respondent has been enjoying the use of
the subject property for free from the time the rights over the property were
transferred and conveyed by Caruff to the National Government.
We have held that "[t]here is unjust enrichment when a person unjustly
retains a benefit to the loss of another, or when a person retains money or
property of another against the fundamental principles of justice, equity and
good conscience." Article 22 of the Civil Code provides that "[e]very person
who, through an act or performance by another, or any other means,
acquires or comes into possession of something at the expense of the latter,
without just or legal ground, shall return the same to him." The principle of
unjust enrichment under Article 22 of the Civil Code requires two conditions:
(1) that a person is benefited without a valid basis or justification, and (2) that
such benefit is derived at another's expense or damage.20
In the present case, there is no dispute as to who owns the subject property
and as to the fact that the National Government has been deprived of the use
thereof for almost two decades. Thus, it is but just and proper that
respondent should pay reasonable rent for the portion of the subject property
occupied by the generating set and sump pumps, from the time respondent
deprived the lawful owner of the use thereof up to the present. To rule
otherwise would be unjust enrichment on the part of respondent at the
expense of the Government.
From the records, APT/PMO submitted, as part of its evidence, a
letter21 dated June 18, 1992, wherein it fixed the monthly rental fee per
square meter of the entire property at P56.25, or P1.81 per square meter per
day. Hence, respondent should pay the National Government reasonable
rent in the amount of P56.25 per square meter per month, to be reckoned
from August 28, 1989 up to the time when the generating set and sump
pumps are completely removed therefrom.
WHEREFORE, premises considered, the Decision of the Regional Trial
Court in Spec. Proc. No. 89-49563 dated January 12, 1995, and the Decision
4
and Resolution of the Court of Appeals in CA-G.R. CV No. 48984 dated Maruhom, Bucay G. Maruhom, Mamod G. Maruhom, Farouk G. Maruhom,
February 16, 2001 and May 3, 2001, respectively, are REVERSED and SET Hidjara G. Maruhom, Rocania G. Maruhom, Potrisam G. Maruhom, Lumba
ASIDE. G. Maruhom, Sinab G. Maruhom, Acmad G. Maruhom, Solayman G.
Maruhom, Mohamad M. Ibrahim and Caironesa M. Ibrahim, instituted an
Legaspi Towers 300, Inc. is DIRECTED to REMOVE the generating set and action against petitioner National Power Corporation (NAPOCOR) for
sump pumps 1 and 2 from the property covered by TCT No. 200760 and recovery of possession of land and damages before the Regional Trial Court
to PAY reasonable rent at the rate of P56.25 per square meter/per month (RTC) of Lanao del Sur.
from August 28, 1989 until the same are completely removed.
In their complaint, Ibrahim and his co-heirs claimed that they were
SO ORDERED. owners of several parcels of land described in Survey Plan FP (VII-5) 2278
consisting of 70,000 square meters, divided into three (3) lots, i.e. Lots 1, 2,
and 3 consisting of 31,894, 14,915, and 23,191 square meters each
NATIONAL POWER G.R. No. 168732 respectively. Sometime in 1978, NAPOCOR, through alleged stealth and
CORPORATION, without respondents knowledge and prior consent, took possession of the
Petitioner, sub-terrain area of their lands and constructed therein underground tunnels.
Present: The existence of the tunnels was only discovered sometime in July 1992 by
-versus- respondents and then later confirmed on November 13, 1992 by NAPOCOR
itself through a memorandum issued by the latters Acting Assistant Project
LUCMAN G. IBRAHIM, OMAR PUNO, C.J., Chairperson, Manager. The tunnels were apparently being used by NAPOCOR in
G. MARUHOM, ELIAS G. SANDOVAL-GUTIERREZ,* siphoning the water of Lake Lanao and in the operation of NAPOCORs Agus
MARUHOM, BUCAY G. CORONA, II, III, IV, V, VI, VII projects located in Saguiran, Lanao del Sur; Nangca and
MARUHOM, FAROUK G. AZCUNA, and Balo-i in Lanao del Norte; and Ditucalan and Fuentes in IliganCity.
MARUHOM, HIDJARA G. GARCIA, JJ.
MARUHOM, ROCANIA G. On September 19, 1992, respondent Omar G. Maruhom requested
MARUHOM, POTRISAM G. the Marawi City Water District for a permit to construct and/or install a
MARUHOM, LUMBA G. Promulgated: motorized deep well in Lot 3 located in Saduc, Marawi City but his request
MARUHOM, SINAB G. was turned down because the construction of the deep well would cause
MARUHOM, ACMAD G. danger to lives and property. On October 7, 1992, respondents demanded
MARUHOM, SOLAYMAN G. June 29, 2007 that NAPOCOR pay damages and vacate the sub-terrain portion of their
MARUHOM, MOHAMAD M. lands but the latter refused to vacate much less pay damages. Respondents
IBRAHIM, and CAIRONESA M. further averred that the construction of the underground tunnels has
IBRAHIM, endangered their lives and properties as Marawi City lies in an area of local
Respondents. volcanic and tectonic activity. Further, these illegally constructed tunnels
X----------------------------------------------------------------------------------------X caused them sleepless nights, serious anxiety and shock thereby entitling
DECISION them to recover moral damages and that by way of example for the public
good, NAPOCOR must be held liable for exemplary damages.
AZCUNA, J.: Disputing respondents claim, NAPOCOR filed an answer with counterclaim
denying the material allegations of the complaint and interposing affirmative
This is a petition for review on certiorari under Rule 45 of the Rules and special defenses, namely that (1) there is a failure to state a cause of
of Court seeking to annul the Decision[1] dated June 8, 2005 rendered by the action since respondents seek possession of the sub-terrain portion when
Court of Appeals (CA) in C.A.-G.R. CV No. 57792. they were never in possession of the same, (2) respondents have no cause
The facts are as follows: of action because they failed to show proof that they were the owners of the
property, and (3) the tunnels are a government project for the benefit of all
On November 23, 1994, respondent Lucman G. Ibrahim, in his and all private lands are subject to such easement as may be necessary for
personal capacity and in behalf of his co-heirs Omar G. Maruhom, Elias G. the same.[2]
5
On August 7, 1996, the RTC rendered a Decision, the decretal portion of
which reads as follows:
WHEREFORE, judgment is hereby rendered:
1. Denying plaintiffs [private respondents]
prayer for defendant [petitioner] National Power Corporation
to dismantle the underground tunnels constructed between
the lands of plaintiffs in Lots 1, 2, and 3 of Survey Plan FP
(VII-5) 2278;
2. Ordering defendant to pay to plaintiffs
the fair market value of said 70,000 square meters of land
covering Lots 1, 2, and 3 as described in Survey Plan FP
(VII-5) 2278 less the area of 21,995 square meters
at P1,000.00 per square meter or a total of P48,005,000.00
for the remaining unpaid portion of 48,005 square meters;
with 6% interest per annum from the filing of this case until
paid;
3. Ordering defendant to pay plaintiffs a
reasonable monthly rental of P0.68 per square meter of the
total area of 48,005 square meters effective from its
occupancy of the foregoing area in 1978 or a total
of P7,050,974.40.
4. Ordering defendant to pay plaintiffs the
sum of P200,000.00 as moral damages; and
5. Ordering defendant to pay the further
sum of P200,000.00 as attorneys fees and the costs.
SO ORDERED.[3]
On August 15, 1996, Ibrahim, joined by his co-heirs, filed an Urgent Motion
for Execution of Judgment Pending Appeal. On the other hand, NAPOCOR
filed a Notice of Appeal by registered mail on August 19, 1996. Thereafter,
NAPOCOR filed a vigorous opposition to the motion for execution of
judgment pending appeal with a motion for reconsideration of the Decision
which it had received on August 9, 1996.
On August 26, 1996, NAPOCOR filed a Manifestation and Motion
withdrawing its Notice of Appeal purposely to give way to the hearing of its
motion for reconsideration.
On August 28, 1996, the RTC issued an Order granting execution
pending appeal and denying NAPOCORs motion for reconsideration, which
Order was received by NAPOCOR on September 6, 1996.
On September 9, 1996, NAPOCOR filed its Notice of Appeal by
registered mail which was denied by the RTC on the ground of having been
filed out of time. Meanwhile, the Decision of the RTC was executed pending
appeal and funds of NAPOCOR were garnished by respondents Ibrahim and
his co-heirs.
On October 4, 1996, a Petition for Relief from Judgment was filed by
respondents Omar G. Maruhom, Elias G. Maruhom, Bucay G. Maruhom,
Mamod G. Maruhom, Farouk G. Maruhom, Hidjara G. Maruhom, Potrisam G.
Maruhom and Lumba G. Maruhom asserting as follows:
1) they did not file a motion to reconsider or
appeal the decision within the reglementary period
of fifteen (15) days from receipt of judgment
because they believed in good faith that the decision
was for damages and rentals and attorneys fees
only as prayed for in the complaint:
2) it was only on August 26, 1996 that they
learned that the amounts awarded to the plaintiffs
represented not only rentals, damages and
attorneys fees but the greatest portion of which was
payment of just compensation which in effect would
make the defendant NPC the owner of the parcels of
land involved in the case;
3) when they learned of the nature of the
judgment, the period of appeal has already expired;
4) they were prevented by fraud, mistake,
accident, or excusable negligence from taking legal
steps to protect and preserve their rights over their
parcels of land in so far as the part of the decision
decreeing just compensation for petitioners
properties;
5) they would never have agreed to the alienation
of their property in favor of anybody, considering the
fact that the parcels of land involved in this case
were among the valuable properties they inherited
6
 from their dear father and they would rather see their
land crumble to dust than sell it to anybody.[4]
The RTC granted the petition and rendered a modified judgment
dated September 8, 1997, thus:
WHEREFORE, a modified judgment is hereby rendered:
1) Reducing the judgment award of
plaintiffs for the fair market value
of P48,005,000.00 by 9,526,000.00 or for a
difference by P38,479,000.00 and by the
further sum of P33,603,500.00 subject of the
execution pending appeal leaving a
difference of 4,878,500.00 which may be the
subject of execution upon the finality of this
modified judgment with 6% interest per
annum from the filing of the case until paid.
2) Awarding the sum of P1,476,911.00 to
herein petitioners Omar G. Maruhom, Elias
G. Maruhom, Bucay G. Maruhom, Mahmod
G. Maruhom, Farouk G. Maruhom, Hidjara
G. Maruhom, Portrisam G. Maruhom and
Lumba G. Maruhom as reasonable rental
deductible from the awarded sum
of P7,050,974.40 pertaining to plaintiffs.
3) Ordering defendant embodied in the
August 7, 1996 decision to pay plaintiffs the
sum of P200,000.00 as moral damages; and
further sum of P200,000.00 as attorneys
fees and costs.
SO ORDERED.[5]
Subsequently, both respondent Ibrahim and NAPOCOR appealed to
the CA.
In the Decision dated June 8, 2005, the CA set aside the modified
judgment and reinstated the original Decision dated August 7, 1996,
amending it further by deleting the award of moral damages and reducing the
amount of rentals and attorneys fees, thus:
WHEREFORE, premises considered, herein Appeals are
hereby partially GRANTED, the Modified Judgment is
ordered SET ASIDE and rendered of no force and effect and
the original Decision of the court a quo dated 7 August 1996
is hereby RESTORED with the MODIFICATION that the
award of moral damages is DELETED and the amounts of
rentals and attorneys fees are REDUCED to P6,888,757.40
and P50,000.00, respectively.
In this connection, the Clerk of Court of RTC Lanao del Sur
is hereby directed to reassess and determine the additional
filing fee that should be paid by Plaintiff-Appellant IBRAHIM
taking into consideration the total amount of damages
sought in the complaint vis--vis the actual amount of
damages awarded by this Court. Such additional filing fee
shall constitute a lien on the judgment.
SO ORDERED.[6]
Hence, this petition ascribing the following errors to the CA:
(a) RESPONDENTS WERE NOT DENIED THE
BENEFICIAL USE OF THEIR SUBJECT
PROPERTIES TO ENTITLE THEM TO JUST
COMPENSATION BY WAY OF DAMAGES;
(b) ASSUMING THAT RESPONDENTS ARE
ENTITLED TO JUST COMPENSATION BY WAY
OF DAMAGES, NO EVIDENCE WAS PRESENTED
ANENT THE VALUATION OF RESPONDENTS
PROPERTY AT THE TIME OF ITS TAKING IN THE
YEAR 1978 TO JUSTIFY THE AWARD OF ONE
THOUSAND SQUARE METERS (P1000.00/SQ. M.)
EVEN AS PAYMENT OF BACK RENTALS IS
ITSELF IMPROPER.
This case revolves around the propriety of paying just compensation to
respondents, and, by extension, the basis for computing the same. The
threshold issue of whether respondents are entitled to just compensation
hinges upon who owns the sub-terrain area occupied by petitioner.
7

Petitioner maintains that the sub-terrain portion where the
underground tunnels were constructed does not belong to respondents
because, even conceding the fact that respondents owned the property, their
right to the subsoil of the same does not extend beyond what is necessary to
enable them to obtain all the utility and convenience that such property can
normally give. In any case, petitioner asserts that respondents were still able
to use the subject property even with the existence of the tunnels, citing as
an example the fact that one of the respondents, Omar G. Maruhom, had
established his residence on a part of the property. Petitioner concludes that
the underground tunnels 115 meters below respondents property could not
have caused damage or prejudice to respondents and their claim to this
effect was, therefore, purely conjectural and speculative.[7]
The contention lacks merit.
Generally, in an appeal by certiorari under Rule 45 of the Rules of Court, the
Court does not pass upon questions of fact. Absent any showing that the trial
and appellate courts gravely abused their discretion, the Court will not
examine the evidence introduced by the parties below to determine if they
correctly assessed and evaluated the evidence on record. [8] The jurisdiction
of the Court in cases brought to it from the CA is limited to reviewing and
revising the errors of law imputed to it, its findings of fact being as a rule
conclusive and binding on the Court.
In the present case, petitioner failed to point to any evidence
demonstrating grave abuse of discretion on the part of the CA or to any other
circumstances which would call for the application of the exceptions to the
above rule. Consequently, the CAs findings which upheld those of the trial
court that respondents owned and possessed the property and that its
substrata was possessed by petitioner since 1978 for the underground
tunnels, cannot be disturbed. Moreover, the Court sustains the finding of the
lower courts that the sub-terrain portion of the property similarly belongs to
respondents. This conclusion is drawn from Article 437 of the Civil Code
which provides:
ART. 437. 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, without detriment to
servitudes and subject to special laws and ordinances. He
cannot complain of the reasonable requirements of aerial
navigation.
Thus, the ownership of land extends to the surface as well as to the subsoil
under it. In Republic of the Philippines v. Court of Appeals,[9] this principle
was applied to show that rights over lands are indivisible and, consequently,
require a definitive and categorical classification, thus:
The Court of Appeals justified this by saying there is no
conflict of interest between the owners of the surface rights
and the owners of the sub-surface rights. This is rather
strange doctrine, for it is a well-known principle that the
owner of a piece of land has rights not only to its surface
but also to everything underneath and the airspace above it
up to a reasonable height. Under the aforesaid ruling, the
land is classified as mineral underneath and agricultural on
the surface, subject to separate claims of title. This is also
difficult to understand, especially in its practical application.
Under the theory of the respondent court, the
surface owner will be planting on the land while the mining
locator will be boring tunnels underneath. The farmer
cannot dig a well because he may interfere with the mining
operations below and the miner cannot blast a tunnel lest
he destroy the crops above. How deep can the farmer, and
how high can the miner go without encroaching on each
others rights? Where is the dividing line between the
surface and the sub-surface rights?
The Court feels that the rights over the land are
indivisible and that the land itself cannot be half agricultural
and half mineral. The classification must be categorical; the
land must be either completely mineral or completely
agricultural.
Registered landowners may even be ousted of ownership and
possession of their properties in the event the latter are reclassified as
mineral lands because real properties are characteristically indivisible. For
the loss sustained by such owners, they are entitled to just compensation
under the Mining Laws or in appropriate expropriation proceedings.[10]
Moreover, petitioners argument that the landowners right extends to
the sub-soil insofar as necessary for their practical interests serves only to
further weaken its case. The theory would limit the right to the sub-soil upon
the economic utility which such area offers to the surface
owners. Presumably, the landowners right extends to such height or depth
where it is possible for them to obtain some benefit or enjoyment, and it is
8
extinguished beyond such limit as there would be no more interest protected
by law.[11]
In this regard, the trial court found that respondents could have dug
upon their property motorized deep wells but were prevented from doing so
by the authorities precisely because of the construction and existence of the
tunnels underneath the surface of their property. Respondents, therefore, still
had a legal interest in the sub-terrain portion insofar as they could have
excavated the same for the construction of the deep well. The fact that they
could not was appreciated by the RTC as proof that the tunnels interfered
with respondents enjoyment of their property and deprived them of its full use
and enjoyment, thus:
Has it deprived the plaintiffs of the use of their lands
when from the evidence they have already existing
residential houses over said tunnels and it was not shown
that the tunnels either destroyed said houses or disturb[ed]
the possession thereof by plaintiffs? From the evidence, an
affirmative answer seems to be in order. The plaintiffs and
[their] co-heirs discovered [these] big underground tunnels in
1992. This was confirmed by the defendant on November
13, 1992 by the Acting Assistant Project Manager, Agus 1
Hydro Electric Project (Exh. K). On September 16, 1992,
Atty. Omar Maruhom (co-heir) requested the Marawi City
Water District for permit to construct a motorized deep well
over Lot 3 for his residential house (Exh. Q). He was refused
the permit because the construction of the deep well as (sic)
the parcels of land will cause danger to lives and property.
He was informed that beneath your lands are constructed
the Napocor underground tunnel in connection with Agua
Hydroelectric plant (Exh. Q-2). There in fact exists ample
evidence that this construction of the tunnel without the prior
consent of plaintiffs beneath the latters property endangered
the lives and properties of said plaintiffs. It has been proved
indubitably that Marawi City lies in an area of local volcanic
and tectonic activity. Lake Lanao has been formed by
extensive earth movements and is considered to be a
drowned basin of volcano/tectonic origin. In Marawi City,
there are a number of former volcanoes and an extensive
amount of faulting. Some of these faults are still moving.
(Feasibility Report on Marawi City Water District by Kampsa-
Kruger, Consulting Engineers, Architects and Economists,
Exh. R). Moreover, it has been shown that the underground
tunnels [have] deprived the plaintiffs of the lawful use of the
land and considerably reduced its value. On March 6, 1995,
plaintiffs applied for a two-million peso loan with the Amanah
Islamic Bank for the expansion of the operation of the Ameer
Construction and Integrated Services to be secured by said
land (Exh. N), but the application was disapproved by the
bank in its letter of April 25, 1995 (Exh. O) stating that:
Apropos to this, we regret to inform you that
we cannot consider your loan application
due to the following reasons, to wit:
That per my actual ocular inspection and
verification, subject property offered as
collateral has an existing underground
tunnel by the NPC for the Agus I Project,
which tunnel is traversing underneath your
property, hence, an encumbrance. As a
matter of bank policy, property with an
existing encumbrance cannot be considered
neither accepted as collateral for a loan.
All the foregoing evidence and findings convince this
Court that preponderantly plaintiffs have established the
condemnation of their land covering an area of 48,005 sq.
meters located at Saduc, Marawi City by the defendant
National Power Corporation without even the benefit of
expropriation proceedings or the payment of any just
compensation and/or reasonable monthly rental since
1978.[12]
In the past, the Court has held that if the government takes property without
expropriation and devotes the property to public use, after many years, the
property owner may demand payment of just compensation in the event
restoration of possession is neither convenient nor feasible. [13] This is in
accordance with the principle that persons shall not be deprived of their
property except by competent authority and for public use and always upon
payment of just compensation.[14]
Petitioner contends that the underground tunnels in this case
constitute an easement upon the property of respondents which does not
involve any loss of title or possession. The manner in which the easement
was created by petitioner, however, violates the due process rights of
respondents as it was without notice and indemnity to them and did not go
through proper expropriation proceedings. Petitioner could have, at any time,
validly exercised the power of eminent domain to acquire the easement over
9
respondents property as this power encompasses not only the taking or
appropriation of title to and possession of the expropriated property but
likewise covers even the imposition of a mere burden upon the owner of the
condemned property.[15] Significantly, though, landowners cannot be
deprived of their right over their land until expropriation proceedings are
instituted in court. The court must then see to it that the taking is for public
use, that there is payment of just compensation and that there is due process
of law.[16]
In disregarding this procedure and failing to recognize respondents
ownership of the sub-terrain portion, petitioner took a risk and exposed itself
to greater liability with the passage of time. It must be emphasized that the
acquisition of the easement is not without expense. The underground tunnels
impose limitations on respondents use of the property for an indefinite period
and deprive them of its ordinary use. Based upon the foregoing, respondents
are clearly entitled to the payment of just compensation. [17] Notwithstanding
the fact that petitioner only occupies the sub-terrain portion, it is liable to pay
not merely an easement fee but rather the full compensation for land. This is
so because in this case, the nature of the easement practically deprives the
owners of its normal beneficial use. Respondents, as the owners of the
property thus expropriated, are entitled to a just compensation which should
be neither more nor less, whenever it is possible to make the assessment,
than the money equivalent of said property.[18]
The entitlement of respondents to just compensation having been
settled, the issue now is on the manner of computing the same. In this
regard, petitioner claims that the basis for the computation of the just
compensation should be the value of the property at the time it was taken in
1978. Petitioner also impugns the reliance made by the CA upon National
Power Corporation v. Court of Appeals and Macapanton Mangondato [19] as
the basis for computing the amount of just compensation in this action. The
CA found that the award of damages is not excessive because the P1000
per square meter as the fair market value was sustained in a case involving a
lot adjoining the property in question which case involved an expropriation by
[petitioner] of portion of Lot 1 of the subdivision plan (LRC) PSD 116159
which is adjacent to Lots 2 and 3 of the same subdivision plan which is the
subject of the instant controversy.[20]
Just compensation has been understood to be the just and complete
equivalent of the loss[21] and is ordinarily determined by referring to the value
of the land and its character at the time it was taken by the expropriating
authority.[22] There is a taking in this sense when the owners are actually
deprived or dispossessed of their property, where there is a practical
destruction or a material impairment of the value of their property, or when
they are deprived of the ordinary use thereof. There is a taking in this context
when the expropriator enters private property not only for a momentary
period but for more permanent duration, for the purpose of devoting the
property to a public use in such a manner as to oust the owner and deprive
him of all beneficial enjoyment thereof.[23] Moreover, taking of the property for
purposes of eminent domain entails that the entry into the property must be
under warrant or color of legal authority.[24]
Under the factual backdrop of this case, the last element of taking
mentioned, i.e., that the entry into the property is under warrant or color of
legal authority, is patently lacking. Petitioner justified its nonpayment of the
indemnity due respondents upon its mistaken belief that the property formed
part of the public dominion.
This situation is on all fours with that in
the Mangondato case. NAPOCOR in that case took the property of therein
respondents in 1979, using it to build its Aqua I Hydroelectric Plant Project,
without paying any compensation, allegedly under the mistaken belief that it
was public land. It was only in 1990, after more than a decade of beneficial
use, that NAPOCOR recognized therein respondents ownership and
negotiated for the voluntary purchase of the property.
In Mangondato, this Court held:
The First Issue: Date of Taking or Date of Suit?
The general rule in determining just
compensation in eminent domain is the value of the
property as of the date of the filing of the complaint, as
follows:
Sec. 4. Order of Condemnation. When such a motion is
overruled or when any party fails to defend as required by
this rule, the court may enter an order of condemnation
declaring that the plaintiff has a lawful right to take the
property sought to be condemned, for the public use or
purpose described in the complaint, upon the payment
of just compensation to be determined as of the date of the
filing of the complaint. x x x (Italics supplied).
Normally, the time of the taking coincides with the filing of
the complaint for expropriation. Hence, many ruling of this
Court have equated just compensation with the value of the
property as of the time of filing of the complaint consistent
with the above provision of the Rules. So too, where the
institution of the action precedes entry to the property, the
10
just compensation is to be ascertained as of the time of filing
of the complaint.
The general rule, however, admits of an exception:
where this Court fixed the value of the property as of the
date it was taken and not the date of the commencement
of the expropriation proceedings.
In the old case of Provincial Government of Rizal vs. Caro
de Araullo, the Court ruled that x x x the owners of the land
have no right to recover damages for this unearned
increment resulting from the construction of the public
improvement (lengthening of Taft Avenue from Manila to
Pasay) from which the land was taken. To permit them to do
so would be to allow them to recover more than the value of
the land at the time it was taken, which is the true measure
of the damages, or just compensation, and would discourage
the construction of important public improvements.
In subsequent cases, the Court, following the above
doctrine, invariably held that the time of taking is the
critical date in determining lawful or just
compensation. Justifying this stance, Mr. Justice (later
Chief Justice) Enrique Fernando, speaking for the
Court in Municipality of La Carlota vs. The Spouses
Felicidad Baltazar and Vicente Gan, said, x x x the owner as
is the constitutional intent, is paid what he is entitled to
according to the value of the property so devoted to public
use as of the date of taking. From that time, he had been
deprived thereof. He had no choice but to submit. He is not,
however, to be despoiled of such a right. No less than the
fundamental law guarantees just compensation. It would be
injustice to him certainly if from such a period, he could not
recover the value of what was lost. There could be on the
other hand, injustice to the expropriator if by a delay in
the collection, the increment in price would accrue to
the owner. The doctrine to which this Court has been
committed is intended precisely to avoid either contingency
fraught with unfairness.
Simply stated, the exception finds the application where
the owner would be given undue incremental
advantages arising from the use to which the
government devotes the property expropriated -- as for
instance, the extension of a main thoroughfare as was in the
case in Caro de Araullo. In the instant case, however, it is
difficult to conceive of how there could have been
an extra-ordinary increase in the value of the owners
land arising from the expropriation, as indeed the
records do not show any evidence that the valuation of
P1,000.00 reached in 1992 was due to increments
directly caused by petitioners use of the land. Since the
petitioner is claiming an exception to Rule 67, Section 4, it
has the burden in proving its claim that its occupancy and
use -- not ordinary inflation and increase in land values --
was the direct cause of the increase in valuation from 1978
to 1992.
Side Issue: When is there Taking of Property?
But there is yet another cogent reason why this petition
should be denied and why the respondent Court should be
sustained. An examination of the undisputed factual
environment would show that the taking was not really made
in 1978.
This Court has defined the elements of taking as the main
ingredient in the exercise of power of eminent domain, in the
following words:
A number of circumstances must be present in taking of
property for purposes of eminent domain: (1) the
expropriator must enter a private property; (2) the entrance
into private property must be for more than a momentary
period; (3) the entry into the property should be under
warrant or color of legal authority; (4) the property must be
devoted to a public use or otherwise informally appropriated
or injuriously affected; and (5) the utilization of the property
for public use must be in such a way to oust the owner and
deprive him of all beneficial enjoyment of the property.(Italics
supplied)
In this case, the petitioners entrance in 1978 was without
intent to expropriate or was not made under warrant or color
of legal authority, for it believed the property was public land
covered by Proclamation No. 1354. When the private
respondent raised his claim of ownership sometime in 1979,
the petitioner flatly refused the claim for compensation,
nakedly insisted that the property was public land and
11
wrongly justified its possession by alleging it had already
paid financial assistance to Marawi City in exchange for the
rights over the property. Only in 1990, after more than a
decade of beneficial use, did the petitioner recognize private
respondents ownership and negotiate for the voluntary
purchase of the property. A Deed of Sale with provisional
payment and subject to negotiations for the correct price was
then executed. Clearly, this is not the intent nor the
expropriation contemplated by law. This is a simple attempt
at a voluntary purchase and sale. Obviously, the petitioner
neglected and/or refused to exercise the power of eminent
domain.
Only in 1992, after the private respondent sued to recover
possession and petitioner filed its Complaint to expropriate,
did petitioner manifest its intention to exercise the power of
eminent domain. Thus the respondent Court correctly held:
If We decree that the fair market value of the land be
determined as of 1978, then We would be sanctioning a
deceptive scheme whereby NAPOCOR, for any reason
other than for eminent domain would occupy anothers
property and when later pressed for payment, first
negotiate for a low price and then conveniently
expropriate the property when the land owner refuses to
accept its offer claiming that the taking of the property
for the purpose of the eminent domain should be
reckoned as of the date when it started to occupy the
property and that the value of the property should be
computed as of the date of the taking despite the
increase in the meantime in the value of the property.
In Noble vs. City of Manila, the City entered into a lease-
purchase agreement of a building constructed by the
petitioners predecessor-in-interest in accordance with the
specifications of the former. The Court held that being bound
by the said contract, the City could not expropriate the
building. Expropriation could be resorted to only when it is
made necessary by the opposition of the owner to the sale
or by the lack of any agreement as to the price. Said the
Court:
The contract, therefore, in so far as it refers to the purchase
of the building, as we have interpreted it, is in force, not
having been revoked by the parties or by judicial
decision. This being the case, the city being bound to buy
the building at an agreed price, under a valid and subsisting
contract, and the plaintiff being agreeable to its sale, the
expropriation thereof, as sought by the defendant, is
baseless. Expropriation lies only when it is made necessary
by the opposition of the owner to the sale or by the lack of
any agreement as to the price. There being in the present
case a valid and subsisting contract, between the owner of
the building and the city, for the purchase thereof at an
agreed price, there is no reason for the expropriation. (Italics
supplied)
In the instant case, petitioner effectively repudiated the deed
of sale it entered into with the private respondent when it
passed Resolution No. 92-121 on May 25, 1992 authorizing
its president to negotiate, inter alia, that payment shall be
effective only after Agus I HE project has been placed in
operation. It was only then that petitioners intent to
expropriate became manifest as private respondent
disagreed and, barely a month, filed suit.[25]
In the present case, to allow petitioner to use the date it constructed
the tunnels as the date of valuation would be grossly unfair. First, it did not
enter the land under warrant or color of legal authority or with intent to
expropriate the same. In fact, it did not bother to notify the owners and
wrongly assumed it had the right to dig those tunnels under their
property. Secondly, the improvements introduced by petitioner, namely, the
tunnels, in no way contributed to an increase in the value of the land. The
trial court, therefore, as affirmed by the CA, rightly computed the valuation of
the property as of 1992, when respondents discovered the construction of
the huge underground tunnels beneath their lands and petitioner confirmed
the same and started negotiations for their purchase but no agreement could
be reached.[26]
As to the amount of the valuation, the RTC and the CA both used as
basis the value of the adjacent property, Lot 1 (the property involved herein
being Lots 2 and 3 of the same subdivision plan), which was valued
at P1,000 per sq. meter as of 1990, as sustained by this Court
in Mangondato, thus:
The Second Issue: Valuation
We now come to the issue of valuation.
The fair market value as held by the respondent Court, is the
amount of P1,000.00 per square meter. In an expropriation
12
case where the principal issue is the determination of just
compensation, as is the case here, a trial before
Commissioners is indispensable to allow the parties to
present evidence on the issue of just
compensation. Inasmuch as the determination of just
compensation in eminent domain cases is a judicial function
and factual findings of the Court of Appeals are conclusive
on the parties and reviewable only when the case falls within
the recognized exceptions, which is not the situation
obtaining in this petition, we see no reason to disturb the
factual findings as to valuation of the subject property. As
can be gleaned from the records, the court-and-the-parties-
appointed commissioners did not abuse their authority in
evaluating the evidence submitted to them nor misappreciate
the clear preponderance of evidence. The amount fixed and
agreed to by the respondent appellate Court is not grossly
exorbitant. To quote:
Commissioner Ali comes from the Office of the Register of
Deeds who may well be considered an expert, with a general
knowledge of the appraisal of real estate and the prevailing
prices of land in the vicinity of the land in question so that his
opinion on the valuation of the property cannot be lightly
brushed aside.
The prevailing market value of the land is only one of the
determinants used by the commissioners report the other
being as herein shown:
xxx
xxx
Commissioner Doromals report, recommending P300.00 per
square meter, differs from the 2 commissioners only
because his report was based on the valuation as of 1978 by
the City Appraisal Committee as clarified by the latters
chairman in response to NAPOCORs general counsels
query.
In sum, we agree with the Court of Appeals that petitioner
has failed to show why it should be granted an exemption
from the general rule in determining just compensation
provided under Section 4 of Rule 67. On the contrary, private
respondent has convinced us that, indeed, such general rule
should in fact be observed in this case.[27]
Petitioner has not shown any error on the part of the CA in reaching
such a valuation. Furthermore, these are factual matters that are not within
the ambit of the present review.
WHEREFORE, the petition is DENIED and the Decision of the Court
of Appeals in C.A.-G.R. CV No. 57792 dated June 8, 2005 is AFFIRMED.
No costs.
SO ORDERED.
GENOVEVA R. JABONETE, ET AL., plaintiffs,
vs.
JULIANA MONTEVERDE, ET AL., defendants,
ANTONIO LEGASPI, respondent-appellant,
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner-appellee,
MRS. LUZ ARCILLA, petitioner-intervenor-appellee.
Zuo and Mojica for the respondents-appellants.
Jesus Avancea for the plaintiffs.
REGALA, J.:
This is an appeal from an order of the Court of First Instance of Davao, dated
March 11, 1960, finding the respondent-appellant, Antonio Legaspi, guilty of
contempt of court, and imposing upon him a fine of P100.
On March 11, 1954, the Court of First Instance of Davao, in view of its finding
in Case No. 824, entitled Jabonete vs. Monteverde, et al., that Antonio
Legaspi acquired the lot in question with the knowledge that a "gravamen" or
easement of right of way existed thereon, promulgated a decision the
dispositive portion of which reads:
Ordena al demandado Antonio Legaspi la demolicion de la parte del
corral construido a lo largo de su terreno que impide a lote
demandantes tener acceso con la vereda que communica con la
carretera principal, Tomas Claudio.
13
 Declara que los demandantes tienen derecho el uso de la vereda
(Exh. A-3), de 3 metros de ancho, unico paso que disponen para
communicarse con la Calle Tomas Claudio, para el paso de sus
jeeps, y los vehiculos, reparados que entran y salen del taller de
reparacion de aquellos.
The respondent-appellant received a copy of the decision on May 12, 1954.
Two days later, May 14, 1954 he filed his notice of appeal therefrom. On May
21, 1954 however, upon a previous motion of the plaintiffs, the lower court
issued an order granting discretionary execution of the said decision. In view
of this last mentioned order, the plaintiffs immediately proceeded to the
premises in question and opened in the fence of the defendant Antonio
Legaspi a sufficient opening for the passage of men and vehicles. Even then,
however, the defendant filed with the court below on that very same day,
May 21, 1954, a motion for the reconsideration of the order granting
discretionary execution. Thereafter, and upon the lower court's suggestion,
the parties entered into an amicable agreement which was later embodied in
an order or "auto" dated May 24, 1954, to wit:
A raiz de la mocion del demandado pidiendo antre otras cosas, la
reconsideracion de la orden de ejecucion de la decision dictada en
esta causa, el 22 del Mayo de 1954, el Juez que preside esta sala
se constituyo para una inspeccion ocular en el lugar en conflicto.
Durante la inspeccion ocular, los demandantes y demandado,
Antonio Legaspi, llegaron a un acuerdo:
1. Los demandantes no instalaran en su terreno su taller de
reparacion de vehiculos de motor.
2. Los demandantes pueden construir su garaje dentro de su terreno
para su jeep (AC), pero no los tendran parados en la calle privada
del demandados construida por este en su terreno a lo largo del
terreno de los demandantes;
3. Los demandantes contribuiran a prorata con el demandado los
gastos de reparacion de la calle privada construida por el referido
demandado en su terreno a lo largo del terreno de los
demandantes.1wph1.t
4. El demandado, Antonio Legaspi, permitira el uso y paso en la
calle privada construida por el en su terreno a lo largo del terreno de
los demandantes, a estos, su familia, sus amigos, chofers,
servidumbre y de sus jeeps.
5. Para los fines del uso de la calle, el demandado permitira a los
demandantes, frente de la casa de estos, abrir una puerta de 4
metros de ancho en el corral construido por el demandado que
separa la calle privada y el terreno de los demandantes, a su
(demandantes) costa; sus hojas tendran por dentro, que los
demandantes tendran cerradas para evitar que los nios, hijos de
los inquilinos del demandado tengan acceso a los jeeps de los
demandantes, cuyo garaje tendran dentro de su (demandantes)
terreno.
El Juzgado ordena a las partes litigantes complan estrictamente con
lo estipulado; de los contrario, los mismos estaran sujetos a las
ordenes de este Juzgado.
As a result of the above agreement and Order of May 24, 1954, the
defendant abandoned the prosecution of his appeal. At the same time, both
parties complied with its terms until the plaintiffs, unable to continue with their
repair shop, transferred to another place in December 1959 whereupon the
defendant reconstructed his fence and its footing, closing thereby the
opening previously made by the plaintiffs.
In the course of time, the plaintiffs' lot was foreclosed by the Development
Bank of the Philippines (DBP) which, later still, conveyed it under a
conditional sale to Mrs. Luz Arcilla. On her acquisition of the said lot, Mrs.
Arcilla demanded of the defendant the re-opening of the fence in question as
it was her plan to construct her house in the said lot. When the defendant
refused, the Development Bank filed with the lower court a petition to hold
the said defendant in contempt. To this petition, Mrs. Luz Arcilla later
intervened and was so allowed by the lower court. The Development Bank of
the Philippines and Mrs. Luz Arcilla contended that the refusal of the
defendant to cause or allow the making of an opening in his fence was a
defiance of the said court's decision of March 11, 1954 and was, therefore,
contemptuous. After due hearing, the lower court sustained the petitioners
and found the defendant guilty of contempt with orders "to pay a fine of One
Hundred Pesos (P100.00) and to open the vereda or alley leading to the lot
owned by the Development Bank of the Philippines and conveyed to Mrs.
Luz S. Arcilla under a conditional deed of sale, otherwise he should be
imprisoned until he does so." Thus, the instant appeal.
The respondent-appellant maintains that the lower court erred in finding him
guilty of contempt because:
14
 1. The decision of March 11, 1954 was novated by the order of May
24, 1954. Consequently, he could not have violated the former
decree since with its novation it ceased to have any legal effect.
2. Even assuming that the said decision was not novated by the
subsequent order of May 24, 1954, still he could not be deemed to
have violated the said decision because the same never became
final and executory. The respondent-appellant argued that since the
decision of March 11, 1954 ordered the opening of a right of way in
his property without providing for this corresponding compensation to
him, contrary to Article 649 of the Civil Code,1 there was in the said
decision "a void which ought to be filled or to be done in order to
completely dispose of the case. It was not clear, specific and
definitive," and consequently, a judgment that could not have
acquired finality.
3. The right to file contempt proceedings against him, with respect to
the decrees contained in the decision of March 11, 1954, has
prescribed. The respondent-appellant conceded that there is no
prescriptive period for the institution of contempt proceedings.
However, he contended that inasmuch as contempt under Rule 64 of
the Rules of Court is punishable by arresto mayor, it should
prescribe in five years just as crimes for which the said penalty is
imposed prescribe, under the Penal Code, in five years.
Without passing on the merits or demerits of the foregoing arguments, this
Court believes that the order finding the respondent-appellant guilty of
contempt should be reversed. It is clear that the order of May 24, 1954
superseded and was fully intended by the lower court to modify or stand in
substitution of the decision of March 11, 1954. More than the expression of
the parties amicable agreement on the dispute, the said order was the lower
court's resolution of the respondent-appellant's motion for reconsideration of
the decision of March 11, 1954. In the determination, therefore, of the said
appellant's obligation relative to the easement in question, the latter and not
the decision of March 11, 1954 is the proper point in reference.
Under the aforesaid order of May 24, 1954, the easement awarded or
secured by the lower court to the plaintiffs was strictly a personal one. The
right of way granted was expressly limited to the latter and their "family,
friends, drivers, servants and jeeps." In the very language of the agreement
the following appears:
El demandado Antonio Legaspi, permitira el uso y paso en la calle
privada construida por el en su terreno a lo largo del terreno de los
demandantes, a estos, su familia, sus amigos, chofers, servidumbre
y de sus jeeps.
The servitude established was clearly for the benefit alone of the plaintiffs
and the persons above enumerated and it is clear that the lower court, as
well as the parties addressed by the said order, did not intend the same to
pass on to the plaintiffs'
successors-in-interest. In other words, the right acquired by the original
plaintiffs was a personal servitude under Article 614 of the Civil Code, and
not a predial servitude that inures to the benefit of whoever owns the
dominant estate.
In resisting the extension of the aforementioned easement to the latter, the
plaintiffs' successors-in-interest, the respondent-appellant, therefore, was not
defying the decision of March 11, 1954 which was then no longer subsisting,
nor the order of May 24, 1954 since the said successors-in-interest had no
right thereunder.
Another evidence that the servitude in question was personal to the plaintiffs
is the fact that the same was granted to the latter without any compensation
to the respondent-appellant.
Wherefore, the order of the lower court dated March 11, 1960 finding the
respondent-appellant guilty of contempt is hereby reversed, without
pronouncement as to costs.
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Makalintal, Bengzon,
J.P., Zaldivar and Sanchez, JJ., concur.
Bautista Angelo and Dizon, JJ., took no part.
EDILBERTO ALCANTARA, FLORENCIO VILLARMIA, POLICARPIO
OBREGON,+ RICARDO ROBLE, ESCOLASTICA ONDONG,
ESTEBAN RALLOS, HENRY SESBINO, SERGIO SESBINO,
MANUEL CENTENO,+ RENATO CRUZ, MARCELINO CENEZA,
BUENAVENTURA ONDONG, and BENJAMIN
HALASAN, petitioners, vs. CORNELIO B. RETA, JR. respondent.
DECISION
PARDO, J. :
The Case
15
 In this petition for review,[1] petitioners seek to review the decision[2] of
the Court of Appeals affirming the decision[3] of the Regional Trial Court,
Davao City, Branch 14, dismissing petitioners complaint for the exercise of
the right of first refusal under Presidential Decree No. 1517, injunction with
preliminary injunction, attorneys fees and nullity of amicable settlement.
The Facts
Edilberto Alcantara, Florencio Villarmia, Policarpio Obregon, Ricardo
Roble, Escolastica Ondong, Esteban Rallos, Henry Sesbino, Sergio Sesbino,
Manuel Centeno, Renato Cruz, Marcelo Ceneza, Buenaventura Ondong and
Benjamin Halasan, filed with the Regional Trial Court, Davao City, Branch
14, a complaint[4] against Cornelio B. Reta, Jr. for the exercise of the right of
right of first refusal under Presidential Decree No. 1517, injunction with
preliminary injunction, attorneys fees and nullity of amicable settlement.
The plaintiffs claimed that they were tenants or lessees of the land
located in Barangay Sasa, Davao City, covered by Transfer Certificate of
Title No. T-72594, owned by Reta; that the land has been converted by Reta
into a commercial center; and that Reta is threatening to eject them from the
land. They assert that they have the right of first refusal to purchase the land
in accordance with Section 3(g) of Presidential Decree No. 1517 since they
are legitimate tenants or lessees thereof.
They also claimed that the amicable settlement executed between Reta
and Ricardo Roble was void ab initio for being violative of Presidential
Decree No. 1517.
On the other hand, Reta claimed that the land is beyond the ambit of
Presidential Decree No. 1517 since it has not been proclaimed as an Urban
Land Reform Zone; that the applicable law is Batas Pambansa Blg. 25 for
failure of the plaintiffs to pay the rentals for the use of the land; and that the
amicable settlement between him and Ricardo Roble was translated to the
latter and fully explained in his own dialect.
On March 8, 1994, the trial court rendered a decision dismissing the
complaint and ordering the plaintiffs to pay Reta certain sums representing
rentals that had remained unpaid.[5]
On April 6, 1994, plaintiffs appealed the decision to the Court of
Appeals.[6]
On December 9, 1998, the Court of Appeals promulgated a
decision[7] affirming in toto the decision of the trial court.
Hence, this appeal.[8]
The Issue
The issue is whether petitioners have the right of first refusal under
Presidential Decree No. 1517.
The Courts Ruling
The petition is without merit.
The area involved has not been proclaimed an Urban Land Reform
Zone (ULRZ). In fact, petitioners filed a petition with the National Housing
Authority requesting that the land they were occupying be declared as an
ULRZ. On May 27, 1986, the request was referred to Mr. Jose L. Atienza,
General Manager, National Housing Authority, for appropriate action. [9] The
request was further referred to acting mayor Zafiro Respicio, Davao City, as
per 2nd Indorsement dated July 1, 1986.[10] Clearly, the request to have the
land proclaimed as an ULRZ would not be necessary if the property was an
ULRZ.
Presidential Decree No. 1517, otherwise known as The Urban Land
Reform Act, pertains to areas proclaimed as Urban Land Reform
Zones.[11] Consequently, petitioners cannot claim any right under the said law
since the land involved is not an ULRZ.
To be able to qualify and avail oneself of the rights and privileges
granted by the said decree, one must be: (1) a legitimate tenant of the land
for ten (10) years or more; (2) must have built his home on the land by
contract; and, (3) has resided continuously for the last ten (10)
years. Obviously, those who do not fall within the said category cannot be
considered legitimate tenants and, therefore, not entitled to the right of first
refusal to purchase the property should the owner of the land decide to sell
the same at a reasonable price within a reasonable time.[12]
Respondent Reta denies that he has lease agreements with petitioners
Edilberto Alcantara and Ricardo Roble.[13] Edilberto Alcantara, on the other
hand, failed to present proof of a lease agreement other than his testimony in
court that he bought the house that he is occupying from his father-in-law.[14]
Respondent Reta allowed petitioner Ricardo Roble to use sixty-two (62)
coconut trees for P186 from where he gathered tuba. This arrangement
16
would show that it is a usufruct and not a lease. Usufruct gives a right to
enjoy the property of another with the obligation of preserving its form and
substance, unless the title constituting it or the law otherwise provides. [15]
Petitioner Roble was allowed to construct his house on the land
because it would facilitate his gathering of tuba. This would be in the nature
of a personal easement under Article 614 of the Civil Code.[16]
Whether the amicable settlement[17] is valid or not, the conclusion would
still be the same since the agreement was one of usufruct and not of lease.
Thus, petitioner Roble is not a legitimate tenant as defined by Presidential
Decree No. 1517.
As to the other petitioners, respondent Reta admitted that he had verbal
agreements with them. This notwithstanding, they are still not the legitimate
tenants contemplated by Presidential Decree No. 1517, who can exercise the
right of first refusal.
A contract has been defined as a meeting of the minds between two
persons whereby one binds himself, with respect to the other, to give
something or to render some service.[18]
Clearly, from the moment respondent Reta demanded that the
petitioners vacate the premises, the verbal lease agreements, which were on
a monthly basis since rentals were paid monthly, [19] ceased to exist as there
was termination of the lease.
Indeed, none of the petitioners is qualified to exercise the right of first
refusal under P. D. No. 1517.
Another factor which militates against petitioners claim is the fact that
there is no intention on the part of respondent Reta to sell the property.
Hence, even if the petitioners had the right of first refusal, the situation which
would allow the exercise of that right, that is, the sale or intended sale of the
land, has not happened. P. D. No. 1517 applies where the owner of the
property intends to sell it to a third party.[20]
The Fallo
WHEREFORE, the Court DENIES the petition. The Court AFFIRMS the
decision of the Court of Appeals[21] and the resolution denying
reconsideration thereof.
No costs.
SO ORDERED.
ELISEO FAJARDO, JR., and MARISSA FAJARDO, petitioners,
vs. FREEDOM TO BUILD, INC., respondent.
DECISION
VITUG, J.:
Freedom To Build, Incorporated, an owner-developer and seller of
low-cost housing, sold to petitioner-spouses, a house and lot
designated Lot No. 33, Block 14, of the De la Costa Homes in
Barangka, Marikina, Metro Manila. The Contract to Sell executed
between the parties, contained a Restrictive Covenant providing
certain prohibitions, to wit:[1]
"Easements. For the good of the entire community, the
homeowner must observe a two-meter easement in front. No
structure of any kind (store, garage, bodega, etc.) may be
built on the front easement.
"x x x.............................x x x.............................x x x
"Upward expansion. A second storey is not prohibited. But
the second storey expansion must be placed above the back
portion of the house and should not extend forward beyond
the apex of the original building.
"x x x.............................x x x.............................x x x
"Front expansion: 2nd Storey: No unit may be extended in
the front beyond the line as designed and implemented by
the developer in the 60 sq. m. unit. In other words, the 2nd
floor expansion, in front, is 6 meters back from the front
property line and 4 meters back from the front wall of the
house, just as provided in the 60 sq. m. units."[2]
The above restrictions were also contained in Transfer Certificate of
Title No. N-115384 covering the lot issued in the name of petitioner-
spouses.
The controversy arose when petitioners, despite repeated warnings
from respondent, extended the roof of their house to the property line
and expanded the second floor of their house to a point directly
above the original front wall.[3] Respondent filed before the Regional
17
Trial Court, National Capital Judicial Region, Branch 261, Pasig City,
an action to demolish the unauthorized structures.
After trial, judgment was rendered against petitioners; thus:
"WHEREFORE, premises considered, defendant spouses
Eliseo B. Fajardo, Jr., and Marissa F. Fajardo are hereby
directed to immediately demolish and remove the extension
of their expanded housing unit that exceeds the limitations
imposed by the Restrictive Covenant, otherwise the Branch
Sheriff of this Court shall execute this decision at
the expense of the defendants.
"As to damages and attorney's fees, it appearing from the
records of this case that no evidence to sustain the same
was adduced by either of the parties, the Court deems
it proper not to award any.
"SO ORDERED."[4]
On appeal to it, the Court of Appeals affirmed the decision of the trial
court.
In their petition for review to this Court, the spouses contest the
judgment of the courts below. Adjacent owners reportedly have no
objection to the construction, and have even expressed interest in
undertaking a similar expansion in their respective residences.
Moreover, the couple's two children, a son and a daughter, might
soon get married and then share, with their families, living quarters
with petitioners. The latter also assail the personality of private
respondent to question the construction which have effectively
relinquished its ownership, right or interest over the subdivision upon
the execution of the Deed of Absolute Sale in favor of the individual
homeowners. Per the contract between Freedom to Build
Incorporated and the De la Costa Low Income Project Homeowners'
Association (hereinafter homeowners' association), petitioners aver,
the enforcement of the prohibitions contained in the "Restrictive
Covenant" originally residing on respondent is now lodged in the
homeowners' association. Petitioners maintain that it is incumbent
upon the homeowners' association, not on respondent, to enforce
compliance with the provisions of the covenant.
A perusal of the provisions of the covenant would show that the
restrictions therein imposed were intended -
"For the protection and benefit of the De La Costa Low
Income Housing Project, and of all the persons who may
now, or hereafter become owners of any part of the project,
and as part of the consideration for the conveyance of the
housing unit, these restrictions are promulgated in order that;
the intents and purposes for which the project was designed
shall be upheld; to wit: subsequent duly approved sale and
assignments of housing units shall be made only to low
income families; a certain level of privacy shall be observed;
a community spirit shall be fostered; and an undisturbed
possession and occupancy at the homeowners shall be
maintained."[5]
Restrictive covenants are not, strictly speaking, synonymous with
easements. While it may be correct to state that restrictive covenants
on the use of land or the location or character of buildings or other
structures thereon may broadly be said to create easements or
rights, it can also be contended that such covenants, being
limitations on the manner in which one may use his own
property,[6] do not result in true easements,[7]but a case of servitudes
(burden), sometimes characterized to be negative easements or
reciprocal negative easements. Negative easement is the most
common easement created by covenant or agreement whose effect
is to preclude the owner of the land from doing an act, which, if no
easement existed, he would be entitled to do.[8]
Courts which generally view restrictive covenants with disfavor for
being a restriction on the use of one's property, have, nevertheless,
sustained them[9] where the covenants are reasonable,[10] not
contrary to public policy,[11] or to law,[12] and not in restraint of
trade.[13] Subject to these limitations, courts enforce restrictions to the
same extent that will lend judicial sanction to any other valid
contractual relationship.[14] In general, frontline restrictions on
constructions have been held to be valid stipulations.[15]
The provisions in a restrictive covenant prescribing the type of the
building to be erected are crafted not solely for the purpose of
creating easements, generally of light and view, nor as a restriction
as to the type of construction,[16] but may also be aimed as a check
on the subsequent uses of the building[17] conformably with what the
developer originally might have intended the stipulations to be. In its
18
Memorandum, respondent states in arguing for the validity of the
restrictive covenant that the -
"x x x restrictions are not without specific purpose. In a low
cost-socialized housing, it is of public knowledge that
owners-developers are constrained to build as many number
of houses on a limited land area precisely to
accommodate marginalized lot buyers, providing as much as
possible the safety, aesthetic and decent living condition by
controlling overcrowding. Such project has been designed to
accommodate at least 100 families per hectare."[18]
There appears to be no cogent reasons for not upholding restrictive
covenants aimed to promote aesthetics, health, and privacy or to
prevent overcrowding.
Viewed accordingly, the statement of petitioners that their immediate
neighbors have not opposed the construction is unavailing to their
cause, the subject restrictive covenant not being intended for the
benefit of adjacent owners but to prescribe the uses of the building,
i.e., to ensure, among other things, that the structures built on De la
Costa Homes Subdivision would prevent overcrowding and promote
privacy among subdivision dwellers. The argument then of
petitioners that expansion is necessary in order to accommodate the
individual families of their two children must fail for like reason. Nor
can petitioners claim good faith; the restrictive covenants are
explicitly written in the Contract To Sell and annotated at the back of
the Transfer Certificate of Title.
Petitioners raise the issue of the personality of respondent to enforce
the provisions of the covenant. Broadly speaking, a suit for equitable
enforcement of a restrictive covenant can only be made by one for
whose benefit it is intended.[19] It is not thus normally enforceable by
one who has no right nor interest in the land for the benefit of which
the restriction has been imposed.[20] Thus, a developer of a
subdivision can enforce restrictions, even as against remote
grantees of lots, only if he retains part of the land.[21] There would
have been merit in the argument of petitioners - that respondent,
having relinquished ownership of the subdivision to the homeowners,
is precluded from claiming any right or interest on the same property
- had not the homeowners' association, confirmed by its board of
directors, allowed respondent to enforce the provisions of the
restrictive covenant.
Finally, petitioners argue that for lack of a specific provision,
prescribing the penalty of demolition in the "Restrictive Covenant" in
the event of a breach thereof, the prayer of respondent to demolish
the structure should fail. This argument has no merit; Article 1168 of
the New Civil Code states:
"When the obligation consists in not doing and the obligor
does what has been forbidden him, it shall be undone at his
expense."
This Court is not unaware of its ruling in Ayala Corporation vs. Ray
Burton Development Corporation,[22] which has merely adjudged the
payment of damages in lieu of demolition. In the aforementioned
case, however, the elaborate mathematical formula for the
determination of compensatory damages which takes into account
the current construction cost index during the immediately preceding
5 years based on the weighted average of wholesale price and wage
indices of the National Census and Statistics Office and the Bureau
of Labor Statistics is explicitly provided for in the Deed of Restrictions
entered into by the parties. This unique and peculiar circumstance,
among other strong justifications therein mentioned, is not extant in
the case at bar.
In sum, the Court holds that -
(1)....The provisions of the Restrictive Covenant are valid;
(2)....Petitioners must be held to be bound thereby; and
(3)....Since the extension constructed exceeds the floor area
limits of the Restrictive Covenant, petitioner-spouses can be
required to demolish the structure to the extent that it
exceeds the prescribed floor area limits.
WHEREFORE, the assailed decision, dated 13 July 1998, of the
Court of Appeals in CA-G.R. CV No. 50085, sustaining that of the
court a quo, is AFFIRMED. No costs.
SO ORDERED.
MAXIMO CORTES, plaintiff-appellant,
vs.
JOSE PALANCA YU-TIBO, defendant-appellant.
19
Felipe G. Calderon, for appellant.
Simplicio del Rosario, for appellee.
MAPA, J.:
This suit was brought to obtain an injunction, in accordance with the
provisions of section 162 to 172 of the Code of Civil Procedure, for the
purpose of restraining the continuation of certain buildings commenced by
the defendant. The court below issued a preliminary injunction during the
trial, but, upon, rendering final judgment, dissolved the injunction, with the
costs against the plaintiff. The latter excepted to this judgment and assigns
error:
In the trial the following facts were admitted without contradiction:
(1) That house No. 65 Calle Rosario, this city, property of the wife of the
plaintiff, has certain windows therein, through which it receives light and air,
said windows opening on the adjacent house, No. 63 of the same street; (2)
that these windows have been in the existence since the year 1843 and (3)
that the defendant, the tenant of the said house No. 63, has commenced
certain work with the view to raising the roof of the house in such a manner
that one-half of the windows in said house No. 65 has been covered, thus
depriving the building of a large part of the air and light formerly received
through the window. In its decision the court below practically finds the
preceding facts, and further finds that the plaintiff has not proven that he has,
by any formal act, prohibited the owner of house No. 63, from making
improvements of any kind therein at any time prior to the complaint.
The contention of the plaintiff is that by the constant and uninterrupted use of
the windows referred to above during a period of fifty-nine years he acquired
from prescription an easement of light in favor of the house No. 65, and as a
servitude upon house No. 63, and, consequently, has acquired the right to
restrain the making of any improvements in the latter house which might in
any manner be prejudicial to the enjoyment of the said easement. He
contends that the easement of light is positive; and that therefore the period
of possession for the purposes of the acquisition of a prescriptive title is to
begin from the date on which the enjoyment of the same commenced, or, in
other words, applying the doctrine to this case, from the time that said
windows were opened with the knowledge of the owner of the house No. 63,
and without opposition on this part.
The defendant, on the contrary, contends that the easement is negative, and
that therefore the time for the prescriptive acquisition thereof must begin from
the date on which the owner of the dominant estate may have prohibited, by
a formal act, the owner of the servient estate from doing something which
would be lawful but for the existence of the easement.
The court below in its decision held in the easement of light is negative, and
this ruling has been assigned by the plaintiff as error to be corrected by this
court.
A building may receive light in various manners in the enjoyment of an
easement of light, because the openings through which the light penetrates
may be made in one's own wall, in the wall of one's neighbor, or in a party
wall. The legal doctrine applicable in either one of these cases is different,
owing to the fact that, although anyone may open windows in his own wall,
no one has a right to do so in the wall of another without the consent of the
owner, and it is also necessary, in accordance with article 580 of the Civil
Code, to obtain the consent of the other coowner when the opening is to be
made in a party wall.
This suit deals with the first case; that is, windows opened in a wall belonging
to the wife of the plaintiff, and it is this phase of the easement which it is
necessary to consider in this opinion.
When a person opens windows in his own building he does nothing more
than exercise an act of ownership inherent in the right of property, which,
under article 348 of the Civil Code, empowers him to deal with his property
as he may see fit, with no limitations other than those established by law. By
reason of the fact that such an act is performed wholly on a thing which is
wholly the property of the one opening the window, it does not in itself
establish any easement, because the property is used by its owner in the
exercise of dominion, and not as the exercise of an easement: "For a man,"
says law 13, title 31, third partida, "should not use that which belongs to him
as if it were a service only, but as his own property." Coexistent with this right
is the right of the owner of the adjacent property to cover up such windows
by building on his own land or raising a wall contiguously to the wall in which
the windows are opened (art. 581 of the same Code), by virtue of the
reciprocity of rights which should exist between abutting owners, and which
would cease to exist if one could do what he pleased on his property and the
other could not do the same on his. Hence it is that the use of the windows
opened in a wall of one's own property, in the absence of some covenant or
express agreement to the contrary, is regarded as an act of mere tolerance
on the part of the owner of the abutting property (judgments of the supreme
court of Spain of the 17th of May, 1876; 10th of May, 1884; 30th of May,
1890), and does not create any right to maintain the windows to the prejudice
of the latter (judgment of the supreme court of Spain of the 13th of June,
20
1877). The mere toleration of such an act does not imply on the part of the
abutting owner a waiver of his right to freely build upon his land as high as he
may see fit, nor does it avail the owner of the windows for the effects of
possession according to article 1942 of the Civil Code, because it is a mere
possession at will. From all this it follows that the easement of light with
respect to the openings made in one's own edifice does not consist precisely
in the fact of opening them or using them, inasmuch as they may be covered
up at any time by the owner of the abutting property, and, as Manresa says
in his commentaries on the Civil Code, "there is no true easement as long as
the right to impede its use exists." The easement really consists of in
prohibiting or restraining the adjacent owner from doing anything which may
tend to cut off or interrupt the light; in short, it is limited to the obligation of not
impeding the light (ne luminibus officiatur). The latter coincides in its effects,
from this point of view, with the obligation of refraining from increasing the
height of a building (altius non tollendi), which, although it constitutes a
special easement, has for its object, at times, the prevention of any
interruption of the light enjoyed by the adjacent owner.
It will be readily observed that the owner of the servient estate subject to
such easement is under no obligation whatsoever to allow anything to be
done on his tenement, nor to do anything there himself, but is simply
restrained from doing anything thereon which may tend to cut off the light
from the dominant estate, which he would undoubtedly be entitled to do were
it not for the existence of the easement. If, then, the first condition is that
which is peculiar to positive easements, and the second condition that which
is peculiar to negative easements, according to the definition of article 533 of
the Civil Code, it is our opinion that the easement of lights in the case of
windows opened in one's own wall is of a negative character, and, as such,
can not be acquired by prescription under article 538 of the Civil Code,
except by counting the time of possession from the date on which the owner
of the dominant estate may, by a formal act have prohibited the owner of the
servient estate from doing something which it would be lawful from him to do
were it not for the easement.
The supreme court of Spain, in its decisions upon this subject, has
established these principles by a long line of cases. In its judgment of May
14, 1861, the said court holds that "the prescription of the easement of lights
does not take place unless there has been some act of opposition on the part
of the person attempting to acquire such a right against the person
attempting to obstruct its enjoyment." The easements of light and view," says
the judgment of March 6, 1875, "because they are of a negative character,
can not be acquired by a prescriptive title, even if continuous, or although
they may have been used for more than twenty-eight years, if the
indispensable requisite for prescription is absent, which is the prohibition on
the one part, and the consent on the other, of the freedom of the tenement
which it is sought to charge with the easement." In its judgment of June 13,
1877, it is also held that use does not confer the right to maintain lateral
openings or windows in one's own wall to the prejudice of the owner of the
adjacent tenement, who, being entitled to make use of the soil and of the
space above it, may, without restriction, build on his line or increase the
height of existing buildings, unless he has been " forbidden to increase the
height of his buildings and to thus cut off the light," and such prohibition has
been consented to and the time fixed by law subsequently expired. The court
also holds that it is error to give the mere existence or use of windows in a
wall standing wholly on the land of one proprietor the creative force of true
easement, although they may have existed from the time immemorial.
Finally, the judgments of the 12th of November, 1899, and the 31st of May,
1890, hold that "as this supreme court has decided, openings made in walls
standing wholly on the land of one proprietor and which overlook the land of
another exist by mere tolerance in the absence of an agreement to the
contrary, and can not be acquired by prescription, except by computing the
time from the execution of some act of possession which tends to deprive the
owner of the tenement affected of the right to build thereon." Various other
judgments might be cited, but we consider that those above mentioned are
sufficient to demonstrate the uniformity of the decisions upon this point. It is
true that the supreme court of Spain, in its decisions of February 7 and May
5, 1896, has classified as positive easements of lights which were the object
of the suits in which these decisions were rendered in cassation, and from
these it might be believed at first glance that the former holdings of the
supreme court upon this subject had been overruled. But this is not so, as a
matter of fact, inasmuch as there is no conflict between these decisions and
the former decisions above cited.
In the first of the suits referred to, the question turned upon two houses which
had formerly belonged to the same owner, who established a service of light
on one of them for the benefit of the other. These properties were
subsequently conveyed to two different persons, but at the time of the
separation of the property nothing was said as to the discontinuance of the
easement, nor were the windows which constituted the visible sign thereof
removed. The new owner of the house subject to the easement endeavored
to free it from the incumbrance, notwithstanding the fact that the easement
had been in existence for thirty-five years, and alleged that the owner of the
dominant estate had not performed any act of opposition which might serve
as a starting point for the acquisition of a prescriptive title. The supreme
court, in deciding this case, on the 7th of February, 1896, held that the
easement in this particular case was positive, because it consisted in
the active enjoyment of the light. This doctrine is doubtless based upon
article 541 of the Code, which is of the following tenor: "The existence of
apparent sign of an easement between two tenements, established by the
21
owner of both of them, shall be considered, should one be sold, as a title for
the active and passive continuance of the easement, unless, at the time of
the division of the ownership of both tenements, the contrary should be
expressed in the deed of conveyance of either of them, or such sign is taken
away before the execution of such deed."
The word "active" used in the decision quoted in classifying the particular
enjoyment of light referred to therein, presupposes on the part of the owner
of the dominant estate a right to such enjoyment arising, in the particular
case passed upon by that decision, from the voluntary act of the original
owner of the two houses, by which he imposed upon one of them an
easement for the benefit of the other. It is well known that easements are
established, among other cases, by the will of the owners. (Article 536 of the
Code). It was an act which was, in fact, respected and acquiesced in by the
new owner of the servient estate, since he purchased it without making any
stipulation against the easement existing thereon, but, on the contrary,
acquiesced in the continuance of the apparent sign thereof. As is stated in
the decision itself, "It is a principle of law that upon a division of a tenement
among various persons -- in the absence of any mention in the contract of a
mode of enjoyment different from that to which the former owner was
accustomed -- such easements as may be necessary for the continuation of
such enjoyment are understood to subsist." It will be seen, then, that the
phrase "active enjoyment" involves an idea directly opposed to the
enjoyment which is the result of a mere tolerance on the part of the adjacent
owner, and which, as it is not based upon an absolute, enforceable right,
may be considered as of a merely passive character. Therefore, the decision
in question is not in conflict with the former rulings of the supreme court of
Spain upon the subject, inasmuch as it deals with an easement of light
established by the owner of the servient estate, and which continued in force
after the estate was sold, in accordance with the special provisions of article
541 of the Civil Code.
Nor is the other decision cited, of May 5, 1896, in conflict with the doctrine
above laid down, because it refers to windows opened in a party wall, and
not in a wall the sole and exclusive property of the owner of the dominant
tenement, as in the cases referred to by the other decisions, and as in the
case at bar. The reason for the difference of the doctrine in the one and the
other case is that no part owner can, without the consent of the other, make
in a party wall a window or opening of any kind, as provided by article 580 of
the Civil Code. The very fact of making such openings in such a wall might,
therefore, be the basis for the acquisition of a prescriptive title without the
necessity of any active opposition, because it always presupposes the
express or implied consent of the other part owner of the wall, which consent,
in turn, implies the voluntary waiver of the right of such part owner to oppose
the making of such openings or windows in such a wall.
With respect to the provisions of law 15, title 31, third partida, which the
appellant largely relied upon in this oral argument before the court, far from
being contrary to it, is entirely in accord with the doctrine of the decisions
above referred to. This law provides that "if anyone shall open a window in
the wall of his neighbor, through which the light enters his house," by this
sole fact he shall acquire a prescriptive title to the easement of light, if the
time fixed in the same law (ten years as to those in the country and twenty
years as to absentees) expires without opposition on the part of the owner of
the wall; but, with the exception of this case, that is to say, when the windows
are not opened in the wall of the neighbor, the law referred to requires as a
condition to the commencement of the running of the time for the prescriptive
acquisition of the easement, that "the neighbor be prohibited from raising his
house, and from thereby interrupting the light." That is to say, he must be
prohibited from exercising his right to build upon his land, and cover the
window of the other. This prohibition, if consented to, serves as a starting
point for the prescriptive acquisition of the easement. It is also an
indispensable requisite, therefore, in accordance with the law of thepartidas,
above mentioned, that some act of opposition be performed, in order that an
easement may be acquired with respect to openings made in one's own wall.
For a proper understanding of this doctrine, it is well to hold in mind that the
Code of the partidas, as well as the Roman law, clearly distinguishes two
classes of easements with respect to the lights of houses, as may be seen in
law 2 of title 31, of the third partida. One of them consists in "the right to
pierce the wall of one's neighbor to open a window through which the light
may enter one's house" (equivalent to the so-called easement of luminum of
the Romans); the other is "the easement which one house enjoys over
another, whereby the latter can not at any time be raised to a greater height
than it had at the time the easement was established, to the end at the light
be not interrupted." (Ne luminibus officiatur.) For the prescriptive acquisition
of the former the time must begin, as we have seen, from the opening of the
window in the neighbor's wall. As to the second, the time commences from
the date on which he was "prevented from raising his house." Some of the
judgments which establish the doctrine above laid down were rendered by
the supreme court of Spain interpreting and applying the above cited law 15,
title 31, partida 3, and therefore they can not in any sense be regarded as
antagonistic to the law itself.
The question as to whether the windows of the house of the plaintiff are, or
are not, so-called regulation windows, we consider of but little importance in
this case, both because the authority of the decisions of the law of
22
thepartidas, above cited, refers to all kinds of windows, and not to regulation
windows solely, and because the record does not disclose, nor has the
appellant even stated, the requirements as to such regulation windows under
the law in operation prior to the Civil Code, which he asserts should be
applied and on which he relies to demonstrate that he has acquired by
prescription the easement in question. With respect to the watershed which,
according to the plaintiff, exists over the window in question, the record does
not disclose that the same has been destroyed by the defendant. He
expressly denies it on page 7 of his brief, and affirms (p. 8) that the tenant of
the appellant's property himself removed it, by reason of the notice served on
him; on the other hand, the judgment of the court below contains no findings
with respect to this fact, nor does it disclose the former existence of any such
watershed. Furthermore, the opinion which we have formed with respect to
this matter, in so far as we are able to understand the merits of the case, is
that this shed was a mere accessory of the window, apparently having no
other purpose than that of protecting it against the inclemency of the
weather; this being so, we are of opinion that it should follow the condition of
the window itself, in accordance with the legal maxim that the accessory
always follows the principal. The appellant contends that the shed should be
regarded as a projection within the provisions of article 582 of the Code; but
it is sufficient to observe that this article speaks of windows with direct views,
balconies, or similar projections, in order to conclude that the article does not
refer to such watersheds, which have not the slightest degree of similarity to
balconies, nor are they constructed for the purpose of obtaining the view --
this being the subject-matter which this article expressly purports to control --
inasmuch as such sheds have rather the effect of limiting the scope of the
view than of increasing it.
The fact that the defendant did not cover the windows of the other house
adjacent No. 63 at the time he covered the windows of the appellant, a fact
which the latter adduces as proof of the recognition on the part of the former
of the prescriptive acquisition of the easement of the light in favor of that
house, which, according to his statement, is under precisely the same
conditions as the house of the plaintiff, does not necessarily imply, in our
opinion, any such recognition, as it might be the result of a mere tolerance on
the part of the defendant. Certainly the fact of his tolerating the use by the
owner of that house of such windows, supposing the facts to be as stated,
does not carry with it as a result an obligation to exercise the same
forbearance with respect to the plaintiff; but whatever may be the legal status
of the windows in the house referred to with respect to the house No. 63, we
cannot pass upon the point, nor can we form suppositions concerning the
matter for the purpose of drawing conclusions of any kind therefrom to
support our opinion, for the simple reason that it is not a point at issue in the
case, and more especially because the defendant not only denied the
existence of the alleged easement of light in favor of the house referred to,
but, on the contrary, he affirms that demand has been made that the
windows in said house be closed, as may be seen on page 8 of his brief.
The point discussed in this trial being whether the plaintiff has acquired the
easement which he seeks to enforce over the house of which the defendant
is tenant, it is evident that the provisions of article 585 of the Civil Code can
not be invoked without taking for granted the very point at issue. This article
refers to cases in which, under any title, the right has been acquired to have
direct views, balconies, or belvederes over contiguous property. The
existence of such a right being the very point at issue, the supposition upon
which the article rests is lacking, and it is therefore not in point.
As a result of the opinion above expressed, we hold:
1. That the easement of light which is the object of this litigation is of a
negative character, and therefore pertains to the class which can not be
acquired by prescription as provided by article 538 of the Civil Code, except
by counting the time of possession from the date on which the owner of the
dominant estate has, in a formal manner, forbidden the owner of the servient
estate to do an act which would be lawful were it not for the easement.
2. That, in consequence thereof, the plaintiff, not having executed any formal
act of opposition to the right of the owner of the house No. 63 Calle Rosario
(of which the defendant is tenant), to make therein improvements which
might obstruct the light of the house No. 65 of the same street, the property
of the wife of the appellant, at any time prior to the complaint, as found by the
court below in the judgment assigned as error, he has not acquired, nor
could he acquire by prescription, such easement of light, no matter how long
a time have elapsed since the windows were opened in the wall of the said
house No. 65, because the period which the law demands for such
prescriptive acquisition could not have commenced to run, the act with which
it must necessarily commence not having been performed.
Therefore, we affirm the judgment of the court below and condemn the
appellant to the payment of all damages caused to the plaintiff, and to the
payment of the costs of this appeal. So ordered.
Arellano, C.J., Cooper, Willard, and Ladd, JJ., concur.
Torres, J., did not sit in this case.
23
 ON MOTION FOR A REHEARING.
The plaintiff asks for a rehearing of the decision of the court of March 12th
last upon the ground that the same contains error:
First, because the decision holds that the window opened in the plaintiff's
own wall and watershed do not constitute the continuous and apparent
easements of prospect, light, and ventilation, or jus projitiendi and jus
spillitiendi, this ruling being in opposition to the provisions of laws 12, 14, and
15, title 31, third partida, and articles 530, 532, 533, 537, 538, 582, and 585
of the Civil Code.
This allegation is entirely unfounded, inasmuch as the decision of the court
contains no declaration as to whether the windows and watershed do or do
not constitute continuous and apparent easements, or jus projitiendi and jus
spillitiendi. These questions were not drawn into issue by the complaint, and
therefore any decision thereon one way or the other would have been
mere dicta. What the court did hold was that the easement of light, when it is
sought to claim such benefit from a window opened in one's own wall, as
does the appellant with respect to the tenement of the defendant, belongs to
the class of negative easements, and that on hold on that account the time of
possession for prescriptive acquisition of the title thereto must be counted,
not from the time of the opening of the windows, but from the time at which
the owner thereof has executed some act of opposition tending to deprive the
owner of the servient tenement of his right, under the law, build upon it to
such height as he might see fit in the legitimate use of his rights of
ownership. With respect to the watershed, the court held that the shed in
question in the case is not included within the class of projections referred to
in article 582 of the Civil Code, and certain it is that neither this article nor
any of the other provisions of law cited by the appellant in his motion papers
established any doctrine contrary to that laid down in the decision, either with
regard to the watershed or with respect to the windows. It is not necessary to
say anything further upon this point. It is sufficient to read the text of the laws
cited to reach the conclusion that the assertion made by the appellant in his
motion papers is entirely gratuitous.
Article 582 provides that windows with direct views, balconies, or other
similar projections opening upon the tenement of one's neighbor are not
permissible unless there are two meters distance between the wall in which
such openings are constructed and the adjacent tenement. From this the
appellant draws the conclusion that he who opens windows in his own wall
without respecting the distance mentioned does not exercise an act of
ownership, as stated in the decision, inasmuch as he violates an express
provisions of the law.
The conclusion reached is evidently false. The appellant confounds the facts
with the law -- an act of ownership with the right of ownership. The owner of
a thing does not cease to be such owner because in his manner of use or
enjoyment thereof he violates some provision of law. The acts which he
performs, in our opinion, even if abusive or contrary to law, are in a strict
sense acts of ownership, acts in the exercise of dominion, because this
character is not derived from a greater or less degree of compliance with the
provisions of law, but from the existence of the status of owner on the part of
the person who exercises such acts. In order that the act performed by the
owner of a wall in opening windows therein be a true act of ownership it is a
matter of indifference whether or not the distance prescribed by article 582 of
the Code has been respected, although, considered from a legal point of
view, it might be an illegal act, as not complying with the conditions imposed
by law.
The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to
the effect that "a man should not use that which belongs to him as if it were a
service only, but as his own property" is of general application, and does not
refer to the easements which is a property owner may establish for the
benefit of his heirs, as is erroneously believed by the appellant. The very
same law provides that easements which "a man imposes upon his house
must be for the benefit of the tenement or thing of another, and not that of his
own tenement;" and this is because things are of service to their owner by
reason of dominion, and not in the exercise of a right of easement. "Res
sua," says a legal maxim, "nemini jure servitutis servit."
The provision of article 1942 of the Civil Code to the effect that acts which
are merely tolerated procedure no effect with respect to possession is
applicable as much as to the prescription of real rights as to the prescription
of the fee, it being a glaring and self-evident error to affirm the contrary, as
does the appellant in his motion papers. Possession is the fundamental basis
of the prescription. Without it no kind of prescription is possible, not even the
extraordinary. Consequently, if acts of mere tolerance produce no effect with
respect to possession, as that article provides, in conformity with article 444
of the same Code, it is evident that they can produce no effect with respect to
prescription, whether ordinary or extraordinary. This is true whether the
prescriptive acquisition be of a fee or of real rights, for the same reason holds
in one and the other case; that is, that there has been no true possession in
the legal sense of the word. Hence, it is because the use of windows in one's
own wall is the result of a mere tolerance that the supreme court of Spain, in
its judgment of June 13, 1877, has held that such user lacks the creative
force of a true easement, although continued from time immemorial. The
citation of article 1959 of the Civil Code and of law 21, title 29, partida 3,
made by the petitioner, is therefore not in point, because both of these
24
provisions of law, which refer to the extraordinary period of prescription
presuppose possession as a necessary requisite, even if without either just
title or good faith.
The second error assigned is that in the decision the court holds that
the gravamina constituted by the window and the projection are negative
easements, against the provisions of article 533, which define them as
positive, which definition, he adds, is supported by the judgments of the
supreme court of Spain of February 7 and May 5, 1896, cited in paragraph
12 of the said decision, which judgments declare that the easement resulting
from a window is positive.
It is not true that article 533 of the Civil Code says that the easement of light
is positive, because it does nothing more than give in general terms the
definition of positive easements and negative easements, without attempting
to specify whether the easement of lights pertains to the first or to the second
class. We have declared that the easement is negative, having in mind this
very definition of the Code and the doctrine established by the judgments of
the supreme court of Spain which have been cited in our opinion. The
interpretation which the appellant attempts to give the article of the Civil
Code cited is evidently erroneous and, consequently, the citation made by
him in support of his contention is not in point.
Our opinion of the true extent and meaning of the judgments of the supreme
court of Spain of February 7 and May 5, 1896, has been already sufficiently
explained, and it is therefore unnecessary to go into the subject again here.
We refer to our decision with respect to what was said therein upon this
subject.
The decision of the court does not contain the declaration, as gratuitously
assumed by the appellant, that the easement resulting from a projection is of
a negative character; nor, in fact, had we any occasion to make such a
declaration, in view of the nature of the issues raised and discussed during
the trial. What we did, indeed, hold was that the watershed mentioned in the
complaint, the purpose of which was simply to protect the window in question
from sun and rain, was a mere accessory to that window, and that in no case
could it be considered as a projection within the provisions of article 582 of
the Civil Code, as so erroneously contended by the appellant at the trial. We
find nothing in his motion papers which can in any way weaken this holding.
The third error is assigned is that the court holds that the easement of light,
as negative, can not be acquired by prescription except by counting the
period of possession from the time at which the owner of the servient
tenement has been prohibited from making improvements which might
interfere with said easement, contrary to the provisions of law 14, title
31, partida 3, and articles 538 and 585 of the Civil Code, which establish the
contrary.
This assertion is entirely destitute of foundation, inasmuch as neither in the
law of the partidas nor in the articles of the Civil Code mentioned is to be
found the doctrine which the appellant arbitrarily seeks to deduce from them.
It is sufficient to read the text to reach the conclusion that the assertion is
wholly gratuitous.
The fourth error assigned is that the court holds that the watershed, as being
an accessory of the window, can not in itself constitute an easement, this
being contrary to the provisions of articles 582 and 585 of the Civil Code, and
law 2, title 31, partida 3, which do not make any such distinction.
Neither of the law cited speaks expressly of watersheds. We have held that
article 582 refers solely to windows, balconies, and other similar projections,
and that the watershed in question does not pertain to this class of
projections, our holding being based upon the reasons given in our decision.
The appellant advances no argument worthy of serious consideration, and
therefore we continue to believe that our opinion in this matter is strictly in
accordance with the law.
The appellant has attached to his motion for a rehearing two judgments, one
rendered by the Royal Audiencia of Manila September 6, 1877, and the other
by the supreme court of Spain on the 22d of February, 1892, and we think it
well to say a few words concerning them.
In the opinion of the appellant these judgments support the theory contended
for by him at the trial, that the easement of lights is positive and not negative.
His error in so believing is evident, inasmuch as neither of the judgments
referred to establishes any such doctrine. On the contrary, it appears clear,
from the first of these judgments, that the easement referred to is negative in
the opinion of the court which rendered it. This appears from the eight
conclusion of law therein, which is literally as follows: "From the evidence
introduced by the defendant, and even from the testimony of witnesses of the
plaintiff, it has been proven that since 1828 the house in question has
suffered no change or alteration in its roof, which projects over Cosio's
lot, which constitutes the active opposition necessary in order to acquire by
prescription the right to the light." It will be seen, then, that the latter part of
the preceding transcript of the conclusion of law days down precisely the
same doctrine as that expressed in our decision -- that active opposition is a
necessary condition for prescriptive acquisition of an easement of light. And
this also demonstrates conclusively that the court which rendered the
25
judgment referred to considered the easement to be negative, inasmuch as There is not one word on these judgments which says that the easement of
positive easements do not require any active opposition as a basis for their lights is positive, nor that a watershed constitutes a true projection within the
prescriptive acquisition, such an act being solely necessary to the meaning attached to this word in article 582 of the Civil Code, as has been
prescription of negative easements. vainly contended by the appellant in the trial.

It would appear, judging from his allegations as a whole, that the appellant Therefore the appellant's motion for a rehearing of the decision of March 12,
confuses positive easements with continuous easements, and the judgments 1903, is denied.
referred to, in fact, declares in its fourth conclusion of law that the easement
of light is continuous. If these were really so the error of the appellant would SOLID MANILA CORPORATION, petitioner,
be manifest, because continuity is not a quality exclusively peculiar to vs.
positive easements; there are negative easements which are also BIO HONG TRADING CO., INC. and COURT OF APPEALS, respondents.
continuous. Hence if is that the Civil Code, after classifying easements, in
article 532, as continuous and discontinuous, classifies them also as positive Balgos & Perez for petitioner.
and negative (art. 533), thus giving to understand that this latter classification Alfredo G. de Guzman for private respondent.
depends upon other characteristics entirely distinct from the continuity or
discontinuity of easements. If all continuous easements were positive and all
discontinuous easements were negative, then the express division of
easements into positive and negative made by the Code, after establishing
the division of the same as continuous or discontinuous, would be entirely
unnecessary, as they would be entirely merged or included in the latter SARMIENTO, J.:
classification. It is sufficient to read the text of the Code to understand
beyond the possibility of a doubt that a negative easement may be This is an appeal filed by way of a petition for review on certiorari under Rule
continuous, and that a positive easement may be discontinuous, according to 45 of the Rules of Court.
the special nature of each one.
The petitioner raises two questions: (1) whether or not the Court of
With respect to the second judgment -- the judgment of the supreme court of Appeals1 erred in reversing the trial court which had rendered summary
Spain of February 22, 1892 -- it is certainly difficult to understand how the judgment; and (2) whether or not it erred in holding that an easement had
appellant could have imagined that he had found therein the slightest ground been extinguished by merger.
for his contention, inasmuch as it lays down no doctrine which relates even
inference to the subject of easements, and simply holds, in the first of only We rule for the petitioner on both counts.
two paragraphs in which its conclusions are contained, that "judgments
should be clear, precise, and responsive to the complaint and the issues
It appears that the petitioner is the owner of a parcel of land located in
properly raised at the trial;" and in the second, that "the judgment appealed
Ermita, Manila, covered by Transfer Certificate of Title No. 157750 of the
was contradictory as to the questions it decides, because it makes certain
Register of Deeds of Manila. The same lies in the vicinity of another parcel,
declarations favorable to some of the contentions in the plaintiff's complaint
registered in the name of the private respondent corporation under Transfer
and then gives judgment for the defendant, without making any distinction." It
Certificate of Title No. 128784.
was for this reason alone, and for no other, that the judgment appealed was
reversed and annulled. In the judgment rendered by the same supreme court
upon the merits of the case, as a result of this decision in cassation, no other The private respondent's title came from a prior owner, and in their deed of
doctrine is laid down than that "the judgment must be that the defendant sale, the parties thereto reserved as an easement of way:
comply with those claims advanced by the complaint to which he was
consented, and that he must be discharged as to those allegations which . . .a portion thereof measuring NINE HUNDRED FOURTEEN
have been denied by him and which have not been proved by the plaintiff." SQUARE METERS, more or less, had been converted into a private
alley for the benefit of neighboring estates, this being duly annotated

26
 at the back of the covering transfer Certificate of title per regulations
of the Office of the City Engineer of Manila and that the three
meterwide portion of said parcel along the Pasig River, with an area
of ONE HUNDRED SEVENTY NINE (179) SQUARE METERS, more
or less, had actually been expropriated by the City Government, and
developed pursuant to the beautification drive of the Metro Manila
Governor. (p. 3, Record).2
As a consequence, an annotation was entered in the private respondent's
title, as follows:
Entry No. 7712/T-5000 CONSTRUCTION OF PRIVATE ALLEY of the case upon its merits upon the posting of a P5,000.00 bond by the
It is hereby made of record that a construction of private alley has
been undertaken on the lot covered by this title from Concepcion
Street to the interior of the aforesaid property with the plan and
specification duly approved by the City Engineer subject to the
following conditions to wit: (1) That the private alley shall be at least
three (3) meters in width; (2) That the alley shall not be closed so
long as there's a building exists thereon (sic); (3) That the alley shall
be open to the sky; (4) That the owner of the lot on which this private
alley has been constituted shall construct the said alley and provide
same with concrete canals as per specification of the City Engineer;
(5) That the maintenance and upkeep of the alley shall be at the
expense of the registered owner; (6) That the alley shall remain open
at all times, and no obstructions whatsoever shall be placed thereon;
(7) That the owner of the lot on which the alley has been constructed
shall allow the public to use the same, and allow the City to lay pipes
for sewer and drainage purposes, and shall not act (sic) for any
indemnity for the use thereof; and (8) That he shall impose upon the
vendee or new owner of the property the conditions
abovementioned; other conditions set forth in Doc. No. 4236, Page
No. 11, Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila.3
The petitioner claims that ever since, it had (as well as other residents of
neighboring estates) made use of the above private alley and maintained and
contributed to its upkeep, until sometime in 1983, when, and over its
protests, the private respondent constructed steel gates that precluded
unhampered use.
On December 6, 1984, the petitioner commenced suit for injunction against
the private respondent, to have the gates removed and to allow full access to
the easement.
The court a quo shortly issued ex parte an order directing the private
respondent to open the gates. Subsequently, the latter moved to have the
order lifted, on the grounds that: (1) the easement referred to has been
extinguished by merger in the same person of the dominant and servient
estates upon the purchase of the property from its former owner; (2) the
petitioner has another adequate outlet; (3) the petitioner has not paid any
indemnity therefor; and (4) the petitioner has not shown that the right-of-way
lies at the point least prejudicial to the servient estate.
The private respondent's opposition notwithstanding, the trial court issued a
"temporary writ of preliminary injunction to continue up to the final termination
plaintiff.4 (the petitioner herein).
Thereafter, the respondent corporation answered and reiterated its above
defenses.
On April 15, 1986, the petitioner moved for summary judgment and the
court a quo ruled on the same as follows:
In view of the foregoing, this Court finds it unnecessary to try this case on the
merit (sic) and hereby resolve (sic) to grant the plaintiffs motion for summary
judgment. (pp. 15-107, Record).5
On January 19, 1987, the trial court rendered judgment against the private
respondent, the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered making permanent the
temporary mandatory injunction, that had been issued against the
defendant, and for the defendant to pay the plaintiff the costs of this
suit.
The defendant's counterclaim against the plaintiff is hereby
dismissed, for lack of merit. (Summary Judgment, p. 6).6
The private respondent appealed to the respondent Court of Appeals.
Meanwhile, the private respondent itself went to the Regional Trial Court on a
petition for the cancellation of the annotation in question. The court granted
cancellation, for which the petitioner instituted CA-G.R. SP No. 13421 of the
respondent Court of Appeals which ordered the restoration of the annotation
"without prejudice [to] the final outcome of 7 the private respondent's own
appeal (subject of this petition).
27
In reversing the trial court which had, as earlier mentioned, rendered
summary judgment, the respondent Court of Appeals held that the summary
judgment was improper and that the lower court erroneously ignored the
defense set up by the private respondent that the easement in question had
been extinguished. According to the Appellate Court, an easement is a mere
limitation on ownership and that it does not impair the private respondent's
title, and that since the private respondent had acquired title to the property,
"merger" brought about an extinguishment of the easement.
The petitioner submits that the respondent Court of Appeals erred, because
the very deed of sale executed between the private respondent and the
previous owner of the property "excluded" the alley in question, and that in
any event, the intent of the parties was to retain the "alley" as an easement
notwithstanding the sale.
As already stated at the outset, the Court finds merit in the petition.
There is no question that an easement, as described in the deed of sale
executed between the private respondent and the seller, had been
constituted on the private respondent's property, and has been in fact
annotated at the back of Transfer Certificate of Title No. 128784. Specifically,
the same charged the private respondent as follows: "(6) That the alley shall
remain open at all times, and no obstructions whatsoever shall be placed
thereon; (7) That the owner of the lot on which the alley has been
constructed shall allow the public to use the same, and allow the City to lay
pipes for sewer and drainage purposes, and shall not [ask] for any indemnity
for the use thereof. . ."8 Its act, therefore, of erecting steel gates across the
alley was in defiance of these conditions and a violation of the deed of sale,
and, of course, the servitude of way.
The Court then is of the opinion that injunction was and is proper and in
denying injunctive relief on appeal, the respondent Appellate Court
committed an error of judgment and law.
It is hardly the point, as the Court of Appeals held, that the private
respondent is the owner of the portion on which the right-of-way had been
established and that an easement can not impair ownership. The petitioner is
not claiming the easement or any part of the property as its own, but rather, it
is seeking to have the private respondent respect the easement already
existing thereon. The petitioner is moreover agreed that the private
respondent has ownership, but that nonetheless, it has failed to observe the
limitation or encumbrance imposed on the same
There is therefore no question as to ownership. The question is whether or
not an easement exists on the property, and as we indicated, we are
convinced that an easement exists.
It is true that the sale did include the alley. On this score, the Court rejects
the petitioner's contention that the deed of sale "excluded" it, because as a
mere right-of-way, it can not be separated from the tenement and maintain
an independent existence. Thus:
Art. 617. Easements are inseparable from the estate to which they
actively or passively belong.9
Servitudes are merely accessories to the tenements of which they form
part.10 Although they are possessed of a separate juridical existence, as
mere accessories, they can not, however, be alienated 11 from the tenement,
or mortgaged separately.12
The fact, however, that the alley in question, as an easement, is inseparable
from the main lot is no argument to defeat the petitioner's claims, because as
an easement precisely, it operates as a limitation on the title of the owner of
the servient estate, specifically, his right to use (jus utendi).
As the petitioner indeed hastens to point out, the deed itself stipulated that "a
portion thereof [of the tenement] measuring NINE HUNDRED FOURTEEN
SQUARE METERS, more or less, had been converted into a private alley for
the benefit of the neighboring estates. . ."13 and precisely, the former owner,
in conveying the property, gave the private owner a discount on account of
the easement, thus:
WHEREAS, to compensate for the foregoing, the parties hereto
agreed to adjust the purchase price from THREE MILLION SEVEN
HUNDRED NINETY THOUSAND FOUR HUNDRED FORTY
PESOS (P3,790,440.) to THREE MILLION FIVE HUNDRED THREE
THOUSAND TWO HUNDRED FORTY PESOS (P3,503,240.00)14
Hence, and so we reiterate, albeit the private respondent did acquire
ownership over the property including the disputed alley as a result of
the conveyance, it did not acquire the right to close that alley or otherwise put
up obstructions thereon and thus prevent the public from using it, because as
a servitude, the alley is supposed to be open to the public.
The Court is furthermore of the opinion, contrary to that of the Court of
Appeals, that no genuine merger took place as a consequence of the sale in
28
favor of the private respondent corporation. According to the Civil Code, a
merger exists when ownership of the dominant and servient estates is
consolidated in the same person.15 Merger then, as can be seen, requires full
ownership of both estates.
One thing ought to be noted here, however. The servitude in question is a
personal servitude, that is to say, one constituted not in favor of a particular
tenement (a real servitude) but rather, for the benefit of the general public.
Personal servitudes are referred to in the following article of the Civil Code:
Art. 614. Servitudes may also be established for the benefit of a
community, or of one or more persons to whom the encumbered
estate does not belong.16
In a personal servitude, there is therefore no "owner of a dominant tenement"
to speak of, and the easement pertains to persons without a dominant
estate,17 in this case, the public at large.
Merger, as we said, presupposes the existence of a prior servient-dominant
owner relationship, and the termination of that relation leaves the easement
of no use. Unless the owner conveys the property in favor of the public if
that is possible no genuine merger can take place that would terminate a
personal easement.
For this reason, the trial court was not in error in rendering summary
judgment, and insofar as the respondent Court of Appeals held that it (the
trial court) was in error, the Court of Appeals is in error.
Summary judgments under Rule 34 of the Rules of Court are proper where
there is no genuine issue as to the existence of a material fact, and the facts
appear undisputed based on the pleadings, depositions, admissions, and
affidavits of record.18 In one case, this Court upheld a decision of the trial
court rendered by summary judgment on a claim for money to which the
defendant interposed the defense of payment but which failed to produce
receipts.19We held that under the circumstances, the defense was not
genuine but rather, sham, and which justified a summary judgment. In
another case, we rejected the claim of acquisitive prescription over registered
property and found it likewise to be sham, and sustained consequently, a
summary judgment rendered because the title challenged was covered by a
Torrens Certificate and under the law, Torrens titles are imprescriptible.20
We also denied reconveyance in one case and approved a summary
judgment rendered thereon, on the ground that from the records, the plaintiffs
were clearly guilty of laches having failed to act until after twenty-seven
years.21 We likewise allowed summary judgment and rejected contentions of
economic hardship as an excuse for avoiding payment under a contract for
the reason that the contract imposed liability under any and all conditions. 22
In the case at bar, the defense of merger is, clearly, not a valid defense,
indeed, a sham one, because as we said, merger is not possible, and
secondly, the sale unequivocally preserved the existing easement. In other
words, the answer does not, in reality, tender any genuine issue on a
material fact and can not militate against the petitioner's clear cause of
action.
As this Court has held, summary judgments are meant to rid a proceeding of
the ritual of a trial where, from existing records,23 the facts have been
established, and trial would be futile.
What indeed, argues against the posturing of the private respondent and
consequently, the challenged holding of the respondent Court of Appeals as
well is the fact that the Court of Appeals itself had rendered judgment, in
its CA-G.R. No. 13421, entitled Solid Manila Corporation v. Ysrael, in which it
nullified the cancellation of the easement annotated at the back of the private
respondent's certificate of title ordered by Judge Ysrael in LRC Case No.
273. As the petitioner now in fact insists, the Court of Appeals' judgment,
which was affirmed by this Court in its Resolution dated December 14, 1988,
in G.R. No. 83540, is at least, the law of the case between the parties, as
"law of the case" is known in law, e.g.:
xxx xxx xxx
Law of the case has been defined as the opinion delivered on a
former appeal. More specifically, it means that whatever is once
irrevocably established as the controlling legal rule of decision
between the same parties in the same case continues to be the law
of the case, whether correct on general principles or not, so long as
the facts on which such decision was predicated continue to be the
facts of the case before the court. (21 C.J.S. 330) (Emphasis
supplied).
It may be stated as a rule of general application that, where the
evidence on a second or succeeding appeal is substantially the
same as that on the first or preceding appeal, all matters, questions,
29
 points, or issues adjudicated on the prior appeal are the law of the
case on all subsequent appeals and will not be considered or
readjudicated therein. (5 C.J.S. 1267) (Emphasis supplied.)
In accordance with the general rule stated in Section 1821, where,
after a definite determination, the court has remanded the cause for
further action below, it will refuse to examine question other than
those arising subsequently to such determination and remand, or
other than the propriety of the compliance with its mandate; and if
the court below has proceeded in substantial conformity to the
directions of the appellate court, its action will not be questioned on a
second appeal.
As a general rule a decision on a prior appeal of the same case is
held to be the law of the case whether that decision is right or wrong,
the remedy of the party deeming himself aggrieved being to seek a
rehearing. (5 C.J.S. 1276-77). (Emphasis supplied.)
Questions necessarily involved in the decision on a former appeal
will be regarded as the law of the case on a subsequent appeal,
although the questions are not expressly treated in the opinion of the
court, as the presumption is that all the facts in the case bearing on
the point decided have received due consideration whether all or
none of them are mentioned in the opinion. (5 C.J.S. 1286-87).
(Emphasis supplied.)24
CA-G.R. No. 13421 is the law of the case because clearly, it was brought to
determine the rights of the parties regarding the easement, subject of the
controversy in this case, although as a petition for "cancellation of
annotation" it may have, at a glance, suggested a different cause of action.
And for reasons of fair play, the private respondent can not validly reject CA-
G.R. No. 13421 as the law of the case, after all, it was the one that initiated
the cancellation proceedings with the Regional Trial Court in LRC No. 273
that precipitated that appeal. In the second place, the proceedings for
cancellation of annotation was in fact meant to preempt the injunction
decreed by the lower court in this case. Plainly and simply, the private
respondent is guilty of forum-shopping, as we have described the term:
xxx xxx xxx
There is forum-shopping whenever, as a result of an adverse opinion
in one forum, a party seeks a favorable opinion (other than by appeal
or certiorari) in another. The principle applies not only with respect to
suits filed in the courts but also in connection with litigations
commenced in the courts while an administrative proceeding is
pending, as in this case, in order to defeat administrative processes
and in anticipation of an unfavorable administrative ruling and a
favorable court ruling. This is specially so, as in this case, where the
court in which the second suit was brought, has no jurisdiction.25
to which contempt is a penalty.26
As it happened, in its effort to shop for a friendly forum, the private
respondent found an unfriendly court and it can not be made to profit from its
act of malpractice by permitting it to downgrade its finality and deny its
applicability as the law of the case.
As a personal servitude, the right-of-way in question was established by the
will of the owner.
In the interesting case of North Negros Sugar Co., Inc. v. Hidalgo,27 this
Court, speaking through Justice Claro Recto, declared that a personal
servitude (also a right of way in that case) is established by the mere
"act"28 of the landowner, and is not "contractual in the nature,"29 and a third
party (as the petitioner herein is a third party) has the personality to claim its
benefits. In his separate opinion, however, Justice Jose Laurel maintained
that a personal or voluntary servitude does require a contract and that "[t]he
act of the plaintiff in opening the private way here involved did not constitute
an offer . . . "30 and "[t]here being no offer, there could be no acceptance;
hence no contract."31
The Court sees no need to relive the animated exchanges between two legal
titans (they would contend even more spiritedly in the "larger" world of
politics) to whom present scholars perhaps owe their erudition and who,
because of the paths they have taken, have shaped history itself; after all,
and coming back to the case at bar, it is not disputed that an easement has
been constituted, whereas it was disputed in North Negros' case. Rather, the
question is whether it is still existing or whether it has been extinguished. As
we held, our findings is that it is in existence and as a consequence, the
private respondent can not bar the public, by erecting an obstruction on the
alley, from its use.
WHEREFORE, the petition is GRANTED. The decision of the Court of
Appeals is SET ASIDE and the decision of the Regional Trial Court is hereby
REINSTATED. The petitioner and its counsel are hereby required to SHOW
30
CAUSE why they should not be punished for contempt of court, and also
administratively dealt with in the case of counsel, for forum shopping.
IT IS SO ORDERED.
NATIONAL POWER CORPORATION, petitioner, vs. SPS. JOSE C.
CAMPOS, JR. and MA. CLARA LOPEZ-CAMPOS, respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review of the Decision[1] dated June 16, 2000 of the
Court of Appeals in CA-G.R. CV No. 54265. The assailed decision
affirmed in toto the Decision[2] of the Regional Trial Court (RTC) of Quezon
City, Branch 98, which ordered petitioner National Power Corporation to pay,
among others, actual, moral and nominal damages in the total amount
of P1,980,000 to respondents Spouses Jose C. Campos, Jr. and Ma. Clara
A. Lopez-Campos.
The petition at bar stemmed from the following antecedents:
On February 2, 1996, the respondents filed with the court a quo an
action for sum of money and damages against the petitioner. In their
complaint, the respondents alleged that they are the owners of a parcel of
land situated in Bo. San Agustin, Dasmarias, Cavite, consisting of 66,819
square meters (subject property) covered by Transfer Certificate of Title
(TCT) No. T-957323. Sometime in the middle of 1970, Dr. Paulo C. Campos,
who was then the President of the Cavite Electric Cooperative and brother of
respondent Jose C. Campos, Jr., verbally requested the respondents to grant
the petitioner a right-of-way over a portion of the subject property.Wooden
electrical posts and transmission lines were to be installed for the
electrification of Puerto Azul. The respondents acceded to this request upon
the condition that the said installation would only be temporary in nature. The
petitioner assured the respondents that the arrangement would be temporary
and that the wooden electric posts would be relocated as soon as permanent
posts and transmission lines shall have been installed. Contrary to the verbal
agreement of the parties, however, the petitioner continued to use the
subject property for its wooden electrical posts and transmission lines without
compensating the respondents therefor.[3]
The complaint likewise alleged that some time in 1994, the petitioners
agents trespassed on the subject property and conducted engineering
surveys thereon. The respondents caretaker asked these agents to leave the
property. Thereafter, in 1995, a certain Mr. Raz, who claimed to be the
petitioners agent, went to the office of respondent Jose C. Campos, Jr., then
Associate Justice of the Supreme Court, and requested permission from the
latter to enter the subject property and conduct a survey in connection with
the petitioners plan to erect an all-steel transmission line tower on a 24-
square meter area inside the subject property. Respondent Jose Campos,
Jr., refused to grant the permission and expressed his preference to talk to
the Chief of the Calaca Sub-station or the head of the petitioners Quezon
City office. The respondents did not hear from Mr. Raz or any one from the
petitioners office since then. Sometime in July or August of 1995, the
petitioners agents again trespassed on the subject property, presenting to
the respondents caretaker a letter of authority purportedly written by
respondent Jose C. Campos, Jr. When the caretaker demanded that the
letter be given to him for verification with respondent Jose C. Campos, Jr.
himself, the petitioners agents refused to do so. Consequently, the caretaker
ordered the agents to leave the subject property.[4]
The complaint further alleged that on December 12, 1995, the petitioner
instituted an expropriation case involving the subject property before the RTC
of Imus, Cavite, Branch 22. The case was docketed as Civil Case No. 1174-
95. The petitioner alleged in its complaint therein that the subject property
was selected in a manner compatible with the greatest public good and the
least private injury and that it (petitioner) had tried to negotiate with the
respondents for the acquisition of the right-of-way easement on the subject
property but that the parties failed to reach an amicable settlement.[5]
The respondents maintained that, contrary to the petitioners allegations,
there were other more suitable or appropriate sites for the petitioners all-steel
transmission lines and that the petitioner chose the subject property in a
whimsical and capricious manner. The respondents averred that the
proposed right-of-way was not the least injurious to them as the system
design prepared by the petitioner could be further revised to avoid having to
traverse the subject property. The respondents vigorously denied negotiating
with the petitioner in connection with the latters acquisition of a right-of-way
on the subject property.[6]
Finally, the complaint alleged that unaware of the petitioners intention to
expropriate a portion of the subject property, the respondents sold the same
to Solar Resources, Inc. As a consequence, the respondents stand to lose a
substantial amount of money derived from the proceeds of the sale of the
subject property should the buyer (Solar Resources, Inc.) decide to annul the
sale because of the contemplated expropriation of the subject property. [7]
The complaint a quo thus prayed that the petitioner be adjudged liable
to pay the respondents, among others, actual, nominal and moral damages:
31
WHEREFORE, premises considered, it is respectfully prayed that the
Honorable Court award the plaintiffs:
a. Actual damages for the use of defendants property since middle
1970s, including legal interest thereon, as may be
established during the trial;
b. P1,000,000.00 as nominal damages;
c. P1,000,000.00 as moral damages;
d. Lost business opportunity as may be established during the trial;
e. P250,000.00 as attorneys fees;
f. Costs of suit.
Plaintiffs pray for other, further and different reliefs as may be just and
equitable under the premises.[8]
Upon receipt of the summons and complaint, the petitioner moved for
additional time to file its responsive pleading. However, instead of filing an
answer to the complaint, the petitioner filed a motion to dismiss on the
ground that the action had prescribed and that there was another action
pending between the same parties for the same cause (litis pendencia). The
respondents opposed said motion. On May 2, 1996, the RTC issued an order
denying the petitioners motion to dismiss.
The petitioner then moved for reconsideration of the aforesaid
order. The respondents opposed the same and moved to declare the
petitioner in default on the ground that its motion for reconsideration did not
have the required notice of hearing; hence, it did not toll the running of the
reglementary period to file an answer.
On July 15, 1996, the RTC issued an order denying the petitioners
motion for reconsideration. Subsequently, on July 24, 1996, it issued another
order granting the respondents motion and declared the petitioner in default
for its failure to file an answer. The petitioner filed a motion to set aside the
order of default but the same was denied by the RTC.
The petitioner filed a petition for certiorari, prohibition and preliminary
injunction with the Court of Appeals, docketed as CA-G.R. SP No. 41782,
assailing the May 2, 1996, July 15, 1996 and July 24, 1996 Orders issued by
the RTC as having been issued with grave abuse of discretion and to enjoin
it from proceeding with the case. On February 13, 1996, the CA dismissed
the petition for certiorari, prohibition and preliminary injunction filed by the
petitioner in CA-G.R. SP No. 41782.
In the meantime, the respondents adduced their evidence ex parte in
the RTC. As synthesized by the trial court, the respondents adduced
evidence, thus:
From the evidence thus far submitted, it appears that the plaintiffs spouses,
both of whom professional of high standing in society, are the absolute
owners of a certain parcel of land situated in Bo. San Agustin, Dasmarias,
Cavite, consisting of 66,819 square meters, more or less, covered and
embraced in TCT No. T-95732. Sometime in the mid-1970, Dr. Paulo C.
Campos, brother of Justice Jose Campos, Jr., then President of the Cavite
Electric Cooperative, approached the latter and confided to him the desire of
the National Power Corporation to be allowed to install temporary wooden
electric posts on the portion of his wifes property in order that the high-
tension transmission line coming from Kaliraya passing thru that part of
Cavite can be continued to the direction of Puerto Azul.
Having heard the plea of his brother and the fact that National Power
Corporation was under pressure because at the time that Puerto Azul was
being developed there was no electricity nor was there electrical lines
towards that place and acting on the belief that the installation of wooden
electric posts would be temporary in nature, plaintiffs gave oral permission
for the NPC personnel to enter the said parcel of land. Dr. Paulo C. Campos,
assured him that it was just a temporary measure to meet the emergency
need of the Puerto Azul and that the wooden electric posts will be relocated
when a permanent posts and transmission lines shall have been
installed. Pursuant to their understanding, the National Power Corporation
installed wooden posts across a portion of plaintiffs property occupying a
total area of about 2,000 square meters more or less. To date, defendant
NPC has been using the plaintiffs property for its wooden electrical posts and
transmission lines; that the latter has estimated that the aggregate rental
(which they peg at the conservative rate of P1.00 per square meter) of the
2,000 square meters for twenty-four (24) years period, would amount to the
aggregate sum of P480,000.00.
From the time National Power Corporation installed those temporary wooden
posts, no notice was ever served upon the plaintiffs of their intention to
relocate the same or to install permanent transmission line on the
property. Also, there was no personal contact between them. However, in
late 1994, plaintiffs overseer found a group of persons of the defendant NPC
conducting survey inside the said property, and were asked to leave the
32
premises upon being discovered that they have no authority to do so from
the owners thereof. Subsequently thereafter, or sometime in 1995, a person
by the name of Mr. Paz, bearing a letter from Calaca Regional Office, went to
see Justice Jose C. Campos, Jr. in his office, informing the latter that he was
authorized by the National Power Corporation to acquire private lands. In the
same breath, Mr. Paz requested his permission to let NPC men enter the
subject property and to conduct a survey in connection with its plan to erect
an all steel transmission line tower on a 24 square meter area inside plaintiffs
property, but same was denied. Justice Campos, however, expressed his
preference to talk instead to the Chief of the Calaca Sub-station or the Head
of the NPC, Quezon City office. Since then, nothing however transpired.
Sometime in July or August 1995, plaintiffs learned that defendants agents
again entered the subject property. This time, they have presented to the
caretaker a letter of authority supposedly from Justice Jose C. Campos,
Jr. And, when prodded to see the letter for verification, defendants agents
refused to do so. So, they were ordered out of the vicinity. Plaintiffs stressed
that defendants repeated intrusions into their property without their
expressed knowledge and consent had impugned on their constitutional right
to protection over their property.
Later, on December 12, 1995, plaintiffs received copy of summons and
complaint in Civil Case No. 1174-95 filed by the defendant before the
Regional Trial Court, Fourth Judicial Region, Branch 22, Imus, Cavite for the
expropriation of 5,320 square meters of plaintiffs above-described property to
be used as right-of-way for the all-steel transmission line tower of the Calaca-
Dasmarias 230 KV T/L Project. But what had caused plaintiffs discomfiture is
the allegation in said complaint stating that the parcel of land sought to be
expropriated has not been applied to nor expropriated for any public use and
is selected by plaintiff in a manner compatible with the greatest good and the
least private injury and that defendant had negotiated with (plaintiffs) for the
acquisition of the right-of-way easement over the portion of the same for the
public purpose as above-stated at a price prescribed by law, but failed to
reach an agreement with them notwithstanding the repeated negotiations
between the parties.
Plaintiffs assert that at no instance was there a negotiation between them
and the NPC or its representative. The alleged talk initiated by Mr. Paz with
Justice Campos, Jr. just ended in the latters remonstrance and in prevailing
upon the former of his preference to discuss the matter with a more
responsible officer of the National Power Corporation, such as the Chief of
the Calaca Sub-Station or the Head of NPCs Office in Quezon City. But
plaintiffs plea just fell on the deaf ear. The next thing they know was Civil
Case No. Q-1174-95 already filed in court. A party to a case shall not do
falsehood nor shall mislead or misrepresent the contents of its pleading. That
gross misrepresentation had been made by the National Power Corporation
in their said pleading is irrefutable.
Plaintiffs-spouses Campos declared that there are other areas more suitable
or appropriate that can be utilized as alternative sites for the all-steel
transmission line tower. Just a few meters from the planned right-of-way is
an abandoned road occupied by squatters; it is a government property and
the possession of which the NPC need not compensate. The latter had not
exercised judiciously in the proper selection of the property to be
appropriated. Evidently, NPCs choice was whimsical and capricious. Such
arbitrary selection of plaintiffs property despite the availability of another
property in a manner compatible with the greatest public good and the least
private injury, constitutes an impermissible encroachment of plaintiffs
proprietary rights and their right to due process and equal protection.
Concededly, NPCs intention is to expropriate a portion of plaintiffs
property. This limitation on the right of ownership is the paramount right of
the National Power Corporation granted by law. But before a person can be
deprived of his property through the exercise of the power of eminent
domain, the requisites of law must strictly be complied with. (Endencia vs.
Lualhati, 9 Phil. 177) No person shall be deprived of his property except by
competent authority and for public use and always upon payment of just
compensation. Should this requirement be not first complied with, the courts
shall protect and, in a proper case, restore the owner in his possession. (Art.
433 Civil Code of the Philippines)
Records disclose that in breach of such verbal promise, defendant NPC had
not withdrawn the wooden electrical posts and transmission lines; said
wooden electrical posts and transmission lines still occupy a portion of
plaintiffs property; that the NPC had benefited from them for a long period of
time already, sans compensation to the owners thereof.
Without first complying with the primordial requisites appurtenant to the
exercise of the power of eminent domain, defendant NPC again boldly
intruded into plaintiffs property by conducting engineering surveys with the
end in view of expropriating 5,320 square meters thereof to be used as right-
of-way for the all-steel transmission line tower of the Calaca-Dasmarias 230
KV T/L Project. Such acts constitute a deprivation of ones property for public
use without due compensation. It would therefore seem that the expropriation
had indeed departed from its own purpose and turns out to be an instrument
to repudiate compliance with obligation legally and validly contracted. [9]
33
 On September 26, 1996, the RTC rendered a decision finding the
petitioner liable for damages to the respondents. The dispositive portion of
the RTC decision reads:
WHEREFORE, in view of the foregoing consideration, justment [sic] is
hereby rendered in favor of the plaintiffs, condemning the defendant to pay
(a) Actual damages of P480,000.00 for the use of plaintiffs
property;
(b) One Million Pesos (P1,000,000.00) as moral damages;
(c ) Five Hundred Thousand Pesos (P500,000.00) as nominal
damages;
(d) One Hundred Fifty Thousand Pesos (P150,000.00) as attorneys
fees; and
(e) Costs of suit in the amount of P11,239.00.
SO ORDERED.[10]
The petitioner appealed the decision to the Court of Appeals which on
June 16, 1990 rendered a decision affirming the ruling of the RTC.
Essentially, the CA held that the respondents claim for compensation
and damages had not prescribed because Section 3(i) of the petitioners
Charter, Republic Act No. 6395, as amended, is not applicable to the
case.The CA likewise gave scant consideration to the petitioners claim that
the respondents complaint should be dismissed on the ground of litis
pendencia. According to the CA, the complaint a quo was the more
appropriate action considering that the venue for the expropriation case (Civil
Case No. 1174-95) was initially improperly laid. The petitioner filed the
expropriation proceedings with the RTC in Imus, Cavite, when the subject
property is located in Dasmarias, Cavite. Moreover, the parties in the two
actions are not the same since the respondents were no longer included as
defendants in the petitioners amended complaint in the expropriation case
(Civil Case No. 1174-95) but were already replaced by Solar Resources, Inc.,
the buyer of the subject property, as defendant therein.
The CA likewise found the damages awarded by the RTC in favor of the
respondents just and reasonable under the circumstances obtaining in the
case.
The petitioner now comes to this Court seeking to reverse and set aside
the assailed decision. The petitioner alleges as follows:
I
The Court of Appeals grievously erred and labored under a gross
misapprehension of fact in finding that the Complaint below should not be
dismissed on the ground of prescription.
II
The Court of Appeals erred in affirming the award of nominal and moral
damages, attorneys fees and costs of litigation.[11]
Citing Article 620 of the Civil Code, the petitioner contends that it had
already acquired the easement of right-of-way over the portion of the subject
property by prescription, the said easement having been allegedly
continuous and apparent for a period of about twenty-three (23) years, i.e.,
from about the middle of 1970 to the early part of 1994. The petitioner further
invokes Section 3(i) of its Charter in asserting that the respondents already
waived their right to institute any action for compensation and/or damages
concerning the acquisition of the easement of right-of-way in the subject
property. Accordingly, the petitioner concludes that the award of damages in
favor of the respondents is not warranted.
The petition is bereft of merit.
The petitioners claim that, under Article 620 of the Civil Code, it had
already acquired by prescription the easement of right-of-way over that
portion of the subject property where its wooden electric posts and
transmission lines were erected is untenable. Article 620 of the Civil Code
provides that:
Art. 620. Continuous and apparent easements are acquired either by virtue
of a title or by prescription of ten years.
Prescription as a mode of acquisition requires the existence of the
following: (1) capacity to acquire by prescription; (2) a thing capable of
acquisition by prescription; (3) possession of the thing under certain
conditions; and (4) lapse of time provided by law.[12] Acquisitive prescription
may either be ordinary, in which case the possession must be in good faith
and with just title,[13] or extraordinary, in which case there is neither good faith
nor just title. In either case, there has to be possession which must be in the
concept of an owner, public, peaceful and uninterrupted.[14] As a corollary,
Article 1119 of the Civil Code provides that:
34
Art. 1119. Acts of possessory character executed in virtue of license or by
mere tolerance of the owner shall not be available for the purposes of
possession.
In this case, the records clearly reveal that the petitioners possession of
that portion of the subject property where it erected the wooden posts and
transmission lines was merely upon the tolerance of the
respondents.Accordingly, this permissive use by the petitioner of that portion
of the subject property, no matter how long continued, will not create an
easement of right-of-way by prescription. The case of Cuaycong vs.
Benedicto[15] is particularly instructive. In that case, the plaintiffs for more
than twenty years made use of the road that passed through the hacienda
owned by the defendants, being the only road that connected the plaintiffs
hacienda to the public road. The defendants closed the road in question and
refused the use of the same unless a toll was paid. The plaintiffs therein
brought an action to enjoin the defendants from interfering with the use of the
road.In support of their action, the plaintiffs presented evidence tending to
show that they have acquired the right-of-way through the road by
prescription. This Court rejected the contention, holding as follows:
Had it been shown that the road had been maintained at the public expense,
with the acquiescence of the owners of the estates crossed by it, this would
indicate such adverse possession by the government as in course of time
would ripen into title or warrant the presumption of a grant or of a
dedication. But in this case there is no such evidence, and the claims of
plaintiffs, whether regarded as members of the public asserting a right to use
the road as such, or as persons claiming a private easement of way over the
land of another must be regarded as resting upon the mere fact of user.
If the owner of a tract of land, to accommodate his neighbors or the public in
general, permits them to cross his property, it is reasonable to suppose that it
is not his intention, in so doing, to divest himself of the ownership of the land
so used, or to establish an easement upon it, and that the persons to whom
such permission, tacit or express, is granted, do not regard their privilege of
use as being based upon anything more than the mere tolerance of the
owner. Clearly, such permissive use is in its inception based upon an
essentially revocable license. If the use continues for a long period of time,
no change being made in the relations of the parties by any express or
implied agreement, does the owner of the property affected lose his right of
revocation? Or, putting the same question in another form, does the mere
permissive use ripen into title by prescription?
It is a fundamental principle of the law in this jurisdiction concerning the
possession of real property that such possession is not affected by acts of a
possessory character which are merely tolerated by the possessor, which are
or due to his license (Civil Code, arts. 444 and 1942). This principle is
applicable not only with respect to the prescription of the dominium as a
whole, but to the prescription of right in rem. In the case of Cortes vs.
Palanca Yu-Tibo (2 Phil. Rep., 24, 38), the Court said:
The provision of article 1942 of the Civil Code to the effect that acts which
are merely tolerated produce no effect with respect to possession is
applicable as much to the prescription of real rights as to the prescription of
the fee, it being a glaring and self-evident error to affirm the contrary, as does
the appellant in his motion papers. Possession is the fundamental basis of
prescription. Without it no kind of prescription is possible, not even the
extraordinary. Consequently, if acts of mere tolerance produce no effect with
respect to possession, as that article provides, in conformity with article 444
of the same Code, it is evident that they can produce no effect with respect to
prescription, whether ordinary or extraordinary. This is true whether the
prescriptive acquisition be of a fee or of real rights, for the same reason holds
in one and the other case; that is, that there has been no true possession in
the legal sense of the word. (Citations omitted)
Possession, under the Civil Code, to constitute the foundation of a
prescriptive right, must be possession under claim of title (en concepto de
dueo), or to use the common law equivalent of the term, it must
be adverse. Acts of possessory character performed by one who holds by
mere tolerance of the owner are clearly not en concepto de dueo, and such
possessory acts, no matter how long so continued, do not start the running of
the period of prescription.[16]
Following the foregoing disquisition, the petitioners claim that it had
acquired the easement of right-of-way by prescription must perforce fail. As
intimated above, possession is the fundamental basis of prescription,
whether ordinary or extraordinary. The petitioner never acquired the requisite
possession in this case. Its use of that portion of the subject property where it
erected the wooden poles and transmission lines was due merely to the tacit
license and tolerance of the respondents. As such, it cannot be made the
basis of the acquisition of an easement of right-of-way by prescription.
Neither can the petitioner invoke Section 3(i) of its Charter (Rep. Act No.
6395, as amended) to put up the defense of prescription against the
respondents. The said provision reads in part:
Sec. 3(i). The Corporation or its representatives may also enter upon private
property in the lawful performance or prosecution of its business or purposes,
including the construction of transmission lines thereon; Provided, that the
35
owner of such private property shall be paid the just compensation therefor in
accordance with the provisions hereinafter provided; Provided, further, that
any action by any person claiming compensation and/or damages shall be
filed within five years after the right-of-way, transmission lines, substations,
plants or other facilities shall have been established: Provided, finally, that
after the said period no suit shall be brought to question the said right-of-way,
transmission lines, substations, plants or other facilities nor the amounts of
compensation and/or damages involved;
Two requisites must be complied before the above provision of law may
be invoked:
1. The petitioner entered upon the private property in the lawful
performance or prosecution of its businesses or purposes; and
2.The owner of the private property shall be paid the just
compensation therefor.
As correctly asserted by the respondents, Section 3(i) of Rep. Act No.
6395, as amended, presupposes that the petitioner had already taken the
property through a negotiated sale or the exercise of the power of eminent
domain, and not where, as in this case, the petitioner was merely temporarily
allowed to erect wooden electrical posts and transmission lines on the
subject property. Significantly, the provision uses the term just compensation,
implying that the power of eminent domain must first be exercised by the
petitioner in accordance with Section 9, Article III of the Constitution, which
provides that no private property shall be taken for public use without just
compensation.
This Courts ruling in Lopez vs. Auditor General[17] is likewise in point:
The petitioner brought this case to this Court on the sole issue of
prescription. He cites Alfonso vs. Pasay City in which a lot owner was
allowed to bring an action to recover compensation for the value of his land,
which the Government had taken for road purposes, despite the lapse of
thirty years (1924-1954). On the other hand, the respondents base their
defense of prescription on Jaen vs. Agregado which held an action for
compensation for land taken in building a road barred by prescription
because it was brought after more than ten years (i.e., thirty three years,
from 1920 to 1953). They argue that the ruling in Alfonso cannot be applied
to this case because, unlike Alfonso who made repeated demands for
compensation within ten years, thereby interrupting the running of the period
of prescription, the petitioner here filed his claim only in 1959.
It is true that in Alfonso vs. Pasay City this Court made the statement that
registered lands are not subject to prescription and that on grounds of equity,
the government should pay for private property which it appropriates though
for the benefit of the public, regardless of the passing of time. But the
rationale in that case is that where private property is taken by the
Government for public use without first acquiring title thereto either through
expropriation or negotiated sale, the owners action to recover the land or the
value thereof does not prescribe. This is the point that has been overlooked
by both parties.
On the other hand, where private property is acquired by the Government
and all that remains is the payment of the price, the owners action to collect
the price must be brought within ten years otherwise it would be barred by
the statue of limitations.[18]
Thus, the five-year period provided under Section 3(i) of Rep. Act No.
6395, as amended, within which all claims for compensation and/or damages
may be allowed against the petitioner should be reckoned from the time that
it acquired title over the private property on which the right-of-way is sought
to be established. Prior thereto, the claims for compensation and/or damages
do not prescribe. In this case, the findings of the CA is apropos:
Undeniably, NPC never acquired title over the property over which its
wooden electrical posts and transmission lines were erected. It never filed
expropriation proceedings against such property. Neither did it negotiate for
the sale of the same. It was merely allowed to temporarily enter into the
premises. As NPCs entry was gained through permission, it had no intention
to acquire ownership either by voluntary purchase or by the exercise of
eminent domain.[19]
The petitioner instituted the expropriation proceedings only on
December 12, 1995. Indisputably, the petitioner never acquired title to that
portion of the subject property where it erected the wooden electrical posts
and transmission lines. Until such time, the five-year prescriptive period
within which the respondents right to file an action to claim for compensation
and/or damages for the petitioners use of their property does not even
commence to run. The CA thus correctly ruled that Section 3(i) of Rep. Act
No. 6395, as amended, finds no application in this case and that the
respondents action against the petitioner has not prescribed.
With respect to the damages awarded in favor of the respondents, the
petitioner avers, thus:
The Court of Appeals erred in
affirming the award of nominal
and moral damages, attorneys
fees and costs of litigation.
36
It follows from Section 31(c) of R.A. 6395 that the award moral and nominal
damages, as well as attorneys fees and costs are baseless. The right to
claim them has likewise prescribed.[20]
With our ruling that the claims of the respondents had not prescribed,
the petitioners contention that the respondents are not entitled to moral and
nominal damages and attorneys fees must fail. In affixing the award for moral
and nominal damages and attorneys fees, the CA ratiocinated:
With respect to the fourth assignment of error, this Court is not persuaded to
reverse much less modify the court a quos findings.
An award of moral damages would require certain conditions to be met, to
wit: (1) first, there must be an injury, whether physical, mental or
psychological, clearly sustained by the claimant; (2) second, there must be a
culpable act or omission factually established; (3) third, the wrongful act or
omission of the defendant is the proximate cause of the injury sustained by
the claimant; and (4) fourth, the award of damages is predicated on any of
the cases stated in Article 2219 of the Civil Code.
NPC made it appear that it negotiated with the appellees when no actual
negotiations took place. This allegation seriously affected the on-going sale
of the property to Solar Resources, Inc. as appellees seemed to have sold
the property knowing fully well that a portion thereof was being
expropriated. Such an act falls well within Article 21 of the Civil Code. NPCs
subterfuge certainly besmirched the reputation and professional standing of
Justice Jose C. Campos, Jr. and Professor Maria Clara A. Lopez-Campos,
and caused them physical suffering, mental anguish, moral shock and
wounded feelings.
The records show that Justice Campos career included, among other[s],
being a Professor of Law at the University of the Philippines; Acting
Chairman of the Board of Transportation; Presiding Judge of the Court of
First Instance of Pasay City, and Associate Justice of the Court of
Appeals. Such career reached its apex when he was appointed Associate
Justice of the Supreme Court in 1992. Justice Campos was a member of the
Judicial and Bar Council when NPC filed its Civil Case No. 1174-
95. Professor Maria Clara A. Lopez-Campos is a noted authority in Corporate
and Banking Laws and is a Professor Emerita of the University of the
Philippines from 1981 to the present. She had taught more than three
decades at the College of Law. Against such backdrop, it does not take too
much imagination to conclude that the oppressive and wanton manner in
which NPC sought to exercise its statutory right of eminent domain warranted
the grant of moral damages.
On the award of nominal damages, such are adjudicated in order that a right
of the plaintiff, which has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of indemnifying the plaintiff
for any loss suffered by him. As previously discussed, it does not brood well
for a government entity such as NPC to disregard the tenets of private
property enshrined in the Constitution. NPC not only intentionally trespassed
on appellees property and conducted engineering surveys thereon but also
sought to fool the appellees caretaker by claiming that such entry was
authorized. Moreover, NPC even justifies such trespass as falling under its
right to expropriate the property. Under the circumstances, the award of
nominal damages is sustained.
That NPCs highhanded exercise of its right of eminent domain constrained
the appellees to engage the services of counsel is obvious. As testified upon,
the appellees engaged their counsel for an agreed fee of P250,000.00. The
trial court substantially reduced this to P150,000.00. Inasmuch as such
services included not only the present action but also those for Civil Case
No. 1174-95 erroneously filed by NPC with the Regional Trial Court of Imus,
Cavite, and the Petition for Certiorari in CA-GR No. 41782, this Court finds
such attorneys fees to be reasonable and equitable.[21]
We agree with the CA.
The award of moral damages in favor of the respondents is proper given
the circumstances obtaining in this case. As found by the CA:
NPC made it appear that it negotiated with the appellees when no actual
negotiation took place. This allegation seriously affected the on-going sale of
the property to Solar Resources, Inc. as appellees seemed to have sold the
property knowing fully well that a portion thereof was being
expropriated. Such an act falls well within Article 21 of the Civil Code. NPCs
subterfuge certainly besmirched the reputation and professionally standing of
Justice Jose C. Campos, Jr. and Professor Maria Clara A. Lopez-Campos,
and caused them physical suffering, mental anguish, moral shock and
wounded feelings.
The records show that Justice Campos career included, among other[s],
being a Professor of Law at the University of the Philippines; Acting
Chairman of the Board of Transportation; Presiding Judge of the Court of
First Instance of Pasay City, and Associate Justice of the Court of
Appeals. Such career reached its apex when he was appointed Associate
Justice of the Supreme Court in 1992. Justice Campos was a member of the
Judicial and Bar Council when NPC filed its Civil Case No. 1174-
95. Professor Maria Clara A. Lopez-Campos is a noted authority in Corporate
37
and Banking Laws and is a Professor Emerita of the University of the
Philippines from 1981 to the present. She had taught more than three
decades at the College of Law. Against such backdrop, it does not take too
much imagination to conclude that the oppressive and wanton manner in
which NPC sought to exercise its statutory right of eminent domain warranted
the grant of moral damages.[22]
Further, nominal damages are adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of indemnifying the plaintiff
for any loss suffered by him.[23] Similarly, the court may award nominal
damages in every case where any property right has been invaded. [24] The
petitioner, in blatant disregard of the respondents proprietary right,
trespassed the subject property and conducted engineering surveys
thereon. It even attempted to deceive the respondents caretaker by claiming
that its agents were authorized by the respondents to enter the property
when in fact, the respondents never gave such authority. Under the
circumstances, the award of nominal damages is likewise warranted.
Finally, the award of attorneys fees as part of damages is deemed just
and equitable considering that by the petitioners unjustified acts, the
respondents were obviously compelled to litigate and incur expenses to
protect their interests over the subject property.[25]
WHEREFORE, the petition is hereby DENIED for lack of merit. The
assailed Decision dated June 16, 2000 of the Court of Appeals in CA-G.R.
CV No. 54265 is AFFIRMED in toto.
SO ORDERED.
LAUREANA A. CID, petitioner,
vs.
IRENE P. JAVIER, MANUEL P. JAVIER, JOSEFINA P. JAVIER,
FERNANDO P. JAVIER, JOSE P. JAVIER, GUILLERMO P. JAVIER,
ISIDORA P. JAVIER, BENJAMIN P. JAVIER, and LEONOR
CRISOLOGO, respondents.
Antonio V. Raquiza for petitioner.
Cesar D. Javier for respondents.
BARRERA, J.:
The legal issue presented in this petition to review by certiorari a decision of
the Court of appeals, is whether the respondents Irene P. Javier, et al.,
owners of a building standing on their lot with windows overlooking the
adjacent lot, had acquired by prescription an enforceable easement of light
and view arising from a verbal prohibition to obstruct such view and light,
alleged to have been made upon petitioner's
predecessor-in-interest as owner of the adjoining lot, both of which lots being
covered by Torrens titles. Both the trial court and the Court of Appeals are of
the view and so declared that respondents Javier et al., did acquire such
easement and gave judgment accordingly. Hence, petitioner has come to us
seeking review, alleging that both courts are in error.
The windows in question are admittedly in respondents' own building erected
on their own lot. The easement, if there is any, is therefore a negative
one.1 The alleged prohibition having been avowedly made in 1913 or 1914,
before the present Civil Code took effect, the applicable legal provision is
Article 538 of the Spanish Civil Code which provides:
Art. 538. In order to acquire by prescription the easements referred
to in the next preceding article, the time of the possession shall be
computed, ... in negative easements, from the day on which the
owner of the dominant estate has, by a formal act, forbidden the
owner of the servient estate to perform any act which would be lawful
without the easement. (Emphasis supplied.)
As may be seen, the only question hinges on the interpretation of the phrase
"a formal act". The lower court and the Court of Appeals considered any
prohibition made by the owner of the dominant estate, be it oral or written,
sufficient compliance with the law. The Court of Appeals declared:
In the light of the foregoing decisions, (Cortes vs. Yu Tibo, 2 Phil., 26
and the decisions of the Supreme Court of Spain therein cited), we
agree with the trial court that the "formal act" of prohibition
contemplated by Art. 538 of the old Civil Code may be either a
written or verbal act. The decisions of the Supreme Court of Spain
above-quoted do not at all mention written but merely some act of
prohibition. . . . .
We are inclined to take the contrary view. The law is explicit. It requires
not any form of prohibition, but exacts, in a parenthetical expression, for
emphasis, the doing not only of a specific, particular act, but a formal act.
The following definitions are pertinent:
Formalor pertaining to form, characterized by one due form or
order, done in due form with a solemnity regular; relating to matters
of form. (C. J. S. vol. 37, p. 115.)
38
 ActIn civil law, a writing which states in legal form that a thing has
been done, said or agreed. (1 Bouvier's Law Dictionary, p. 150, citing
Marlin Report.)
From these definitions, it would appear that the phrase "formal act" would
require not merely any writing, but one executed in due form and/or with
solemnity. That this is the intendment of the law although not expressed in
exact language is the reason for the clarification2 made in Article 621 of the
new Civil Code which specifically requires the prohibition to be in "an
instrument acknowledged before a notary public". This is as it should be.
Easements are in the nature of an encumbrance on the servient estate. They
constitute a limitation of the dominical right of the owner of the subjected
property. Hence, they can be acquired only by title and by prescription, in the
case of positive easement, only as a result of some sort of invasion, apparent
and continuous, of the servient estate. By the same token, negative
easements can not be acquired by less formal means. Hence, the
requirement that the prohibition (the equivalent of the act of invasion) should
be by "a formal act", "an instrument acknowledged before a notary public."
The Court of Appeals found as undisputed the fact 'that plaintiffs' lot
(dominant) as well as defendant's lot (servient) are covered by Original
Certificates of Title Nos. 7225 and 7545, respectively", both issued by the
Register of Deeds of Ilocos Norte, in pursuance of the decrees of registration
issued on December 27, 1937, in Cadastral Case No. 51, G.L.R.O. Cadastral
Record No. 1212 of Laoag, Ilocos Norte. Certified copies of these certificates
of title are found as Annexes "A" and "B", pages 77 to 80 inclusive of the
Record on Appeal. In both of them, it does not appear any annotation in
respect to the easement supposedly acquired by prescription which, counting
the twenty (20) years from 1913 or 1914, would have already ripened by
1937, date of the decrees of registration. Consequently, even
conceding arguendo that such an easement has been acquired, it had been
cut off or extinguished by the registration of the servient estate under the
Torrens System without the easement being annotated on the corresponding
certificate of title, pursuant to Section 39 of the Land Registration Act.3
Wherefore, the decision of the Court of Appeals appealed from is hereby
reversed; the injunction issued herein dissolved; and the case remanded to
the court of origin for adjudication of the damages, if any, occasioned by the
issuance of the injunction. Without pronouncement as to costs. So ordered.
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion,
Reyes, J. B. L., and Gutierrez David, JJ., concur.
RESOLUTION
January 20, 1961
BARRERA, J.:
The Decision in this case, promulgated on June 30, 1960, provided, among
others, for the lifting of the preliminary injunction issued by the lower court
directed against petitioner's construction of a building allegedly being made
in violation of Municipal Ordinance No. 3, series of 1909 of the municipality of
Laoag, and in disregard of respondents' right to light and view.
In their motion for reconsideration timely presented, respondents claim that
the findings of the lower court, affirmed by the Court of Appeals, that the
building under construction violated the aforementioned ordinance (from
which no appeal was interposed) having become final, justify the issuance of
and making permanent the injunction already issued.
There is no question that respondents' house, as well as that of petitioner,
are within their respective properties; that respondents' wall stands only 50
centimeters from the boundary of the 2 lots, whereas, the wall of the
petitioner's building was constructed 1 meter from the boundary or 1 meter
and 50 centimeters from the wall of the house of respondents. As a result,
the lower court found that the eaves of the two houses overlap each other by
24 centimeters. This, the Court of Appeals declared to be violative of
Ordinance No. 3, series of 1903, amending Sections 1, 5, 6, and 13 of the
Municipal Ordinance of June 3, 1903, which requires a distance of 2 meters,
measured from eaves to eaves of adjoining buildings of strong materials.
It must be noted, however, that the Ordinance in question was adopted since
1909 and was, therefore, already in force at the time the house of
respondents was reconstructed in 1946 after the building originally erected
thereon was burned in 1942. If respondents constructed their house at least
one meter from the boundary line, as petitioner has constructed hers, there
would be no overlapping of the eaves and there would not be any violation of
the ordinance. As things now stand, in view of such construction by the
respondents, the overlapping of the eaves and the consequential violation of
the ordinance can not entirely be attributed to petitioner, as to require her
alone to make the adjustments necessary for the observance of the 2-meter
39
eaves-to-eaves distance from her neighbors. If any compliance with the
ordinance would be made not only by petitioner, but also by the respondents.
There is, therefore, no reason for the continuation of the injunction.
In view of the foregoing, and as the other grounds respondents' motion for
reconsideration had been already duly considered in the Decision, the said
motion is hereby denied, for lack of merit. So ordered.
Paras, C. J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J. B.
L., Gutierrez David, Paredes, and Dizon, JJ., concur.
BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF
APPEALS AND HEIRS OF MAGDALENO VALDEZ
SR., respondents.
DECISION
CORONA, J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court
seeking to annul and set aside the decision[1] dated November 17, 1995 of
the Court of Appeals, Tenth Division, which reversed the decision [2] dated
November 27, 1991 of the Regional Trial Court of Cebu City, Branch IX,
which ruled in favor of herein petitioner, Bogo-Medellin Milling Company, Inc.
and dismissed herein private respondents' complaint for payment of
compensation and/or recovery of possession of real property and damages
with application for restraining order or preliminary injunction; and its
resolution dated March 2, 1996 denying petitioner's motion for
reconsideration.
The antecedent facts follow.
Magdaleno Valdez, Sr., father of herein private respondents Sergio
Valdez, Angelina Valdez-Novabos, Teresita Argawanon-Mangubat and
Daylinda Argawanon-Melendres (hereafter the heirs), purchased from
Feliciana Santillan, on December 9, 1935, a parcel of unregistered land
covered by Tax Declaration No. 3935 with an area of one hectare, 34 ares
and 16 centares, located in Barrio Dayhagon, Medellin, Cebu. [3] He took
possession of the property and declared it for tax purposes in his name.[4]
Prior to the sale, however, the entire length of the land from north to
south was already traversed in the middle by railroad tracks owned by
petitioner Bogo-Medellin Milling Co., Inc. (hereafter Bomedco). The tracks
were used for hauling sugar cane from the fields to petitioners sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private
respondents inherited the land. However, unknown to them, Bomedco was
able to have the disputed middle lot which was occupied by the railroad
tracks placed in its name in the Cadastral Survey of Medellin, Cebu in 1965.
The entire subject land was divided into three, namely, Cadastral Lot Nos.
953, 954 and 955. Lot Nos. 953 and 955 remained in the name of private
respondents. However, Lot No. 954, the narrow lot where the railroad tracks
lay, was claimed by Bomedco as its own and was declared for tax purposes
in its name. [5]
It was not until 1989 when private respondents discovered the
aforementioned claim of Bomedco on inquiry with the Bureau of
Lands. Through their lawyer, they immediately demanded the legal basis for
Bomedco's claim over Cadastral Lot No. 954 but their letter of inquiry
addressed to petitioner went unheeded, as was their subsequent demand for
payment of compensation for the use of the land.[6]
On June 8, 1989, respondent heirs filed a Complaint for Payment of
Compensation and/or Recovery of Possession of Real Property and
Damages with Application for Restraining Order/Preliminary Injunction
against Bomedco before the Regional Trial Court of Cebu.[7] Respondent
heirs alleged that, before she sold the land to Valdez, Sr. in 1935, Santillan
granted Bomedco, in 1929, a railroad right of way for a period of 30 years.
When Valdez, Sr. acquired the land, he respected the grant. The right of way
expired sometime in 1959 but respondent heirs allowed Bomedco to continue
using the land because one of them was then an employee of the
company.[8]
In support of the complaint, they presented an ancient document an
original copy of the deed of sale written in Spanish and dated December 9,
1935[9] to evidence the sale of the land to Magdaleno Valdez, Sr.; several
original real estate tax receipts[10] including Real Property Tax Receipt No.
3935[11] dated 1922 in the name of Graciano de los Reyes, husband of
Feliciana Santillan, and Real Property Tax Receipt No. 09491 [12]dated 1963
in the name of Magdaleno Valdez, Sr. Magdaleno Valdez, Jr. also testified
for the plaintiffs during the trial.
On the other hand, Bomedcos principal defense was that it was the
owner and possessor of Cadastral Lot No. 954, having allegedly bought the
same from Feliciana Santillan in 1929, prior to the sale of the property by the
latter to Magdaleno Valdez, Sr. in 1935. It also contended that plaintiffs claim
was already barred by prescription and laches because of Bomedcos open
and continuous possession of the property for more than 50 years.
Bomedco submitted in evidence a Deed of Sale[13] dated March 18,
1929; seven real estate tax receipts[14] for the property covering the period
from 1930 to 1985; a 1929 Survey Plan of private land for Bogo-Medellin
40
Milling Company;[15] a Survey Notification Card;[16] Lot Data Computation for
Lot No. 954;[17] a Cadastral Map for Medellin Cadastre[18] as well as the
testimonies of Vicente Basmayor, Geodetic Engineer and property custodian
for Bomedco, and Rafaela A. Belleza, Geodetic Engineer and Chief of the
Land Management Services of the DENR, Region VIII.
In its decision dated November 27, 1991, the trial court [19] rejected
Bomedco's defense of ownership on the basis of a prior sale, citing that its
evidence a xerox copy of the Deed of Sale dated March 18, 1929 was
inadmissible and had no probative value. Not only was it not signed by the
parties but defendant Bomedco also failed to present the original copy
without valid reason pursuant to Section 4, Rule 130 of the Rules of Court. [20]
Nonetheless, the trial court held that Bomedco had been in possession
of Cadastral Lot No. 954 in good faith for more than 10 years, thus, it had
already acquired ownership of the property through acquisitive prescription
under Article 620 of the Civil Code. It explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT
easements can be acquired by prescription after ten (10) years. The
apparent characteristic of the questioned property being used by defendant
as an easement is no longer at issue, because plaintiffs themselves had
acknowledged that the existence of the railway tracks of defendant Bomedco
was already known by the late Magdaleno Valdez, herein plaintiffs
predecessor-in-interest, before the late Magdaleno Valdez purchased in
1935 from the late Feliciana Santillan the land described in the Complaint
where defendants railway tracks is traversing [sic] (TSN of February 5, 1991,
pp. 7-8). As to the continuity of defendants use of the strip of land as
easement is [sic] also manifest from the continuous and uninterrupted
occupation of the questioned property from 1929 up to the date of the filing of
the instant Complaint. In view of the defendants UNINTERRUPTED
possession of the strip of land for more than fifity (50) years, the Supreme
Courts ruling in the case of Ronquillo, et al. v. Roco, et al. (103 Phil 84) is not
applicable. This is because in said case the easement in question was a strip
of dirt road whose possession by the dominant estate occurs only everytime
said dirt road was being used by the dominant estate. Such fact would
necessarily show that the easements possession by the dominant estate was
never continuous. In the instant case however, there is clear continuity of
defendants possession of the strip of land it had been using as railway
tracks. Because the railway tracks which defendant had constructed on the
questioned strip of land had been CONTINUOUSLY occupying said
easement. Thus, defendant Bomedcos apparent and continuous possession
of said strip of land in good faith for more than ten (10) years had made
defendant owner of said strip of land traversed by its railway tracks. Because
the railway tracks which defendant had constructed on the questioned strip of
land had been continuously occupying said easement [sic]. Thus, defendant
Bomedcos apparent and continuous possession of said strip of land in good
faith for more than ten (10) years had made defendant owner of said strip of
land traversed by its railway tracks.
Respondent heirs elevated the case to the Court of Appeals which
found that Bomedco did not acquire ownership over the lot. It consequently
reversed the trial court. In its decision dated November 17, 1995, the
appellate court held that Bomedco only acquired an easement of right of way
by unopposed and continuous use of the land, but not ownership, under
Article 620 of the Civil Code.
The appellate court further ruled that Bomedcos claim of a prior sale to it
by Feliciana Santillan was untrue. Its possession being in bad faith, the
applicable prescriptive period in order to acquire ownership over the land
was 30 years under Article 1137 of the Civil Code. Adverse possession of the
property started only in 1965 when Bomedco registered its claim in the
cadastral survey of Medellin. Since only 24 years from 1965 had elapsed
when the heirs filed a complaint against Bomedco in 1989, Bomedcos
possession of the land had not yet ripened into ownership.
And since there was no showing that respondent heirs or their
predecessor-in-interest was ever paid compensation for the use of the land,
the appellate court awarded compensation to them, to be computed from the
time of discovery of the adverse acts of Bomedco.
Its motion for reconsideration having been denied by the appellate court
in its resolution dated March 22, 1996, Bomedco now interposes before us
this present appeal by certiorari under Rule 45, assigning the following
errors:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT
REVERSED AND SET ASIDE THE TRIAL COURTS DECISION
DISMISSING PRIVATE RESPONDENTS COMPLAINT.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT
ORDERED THE PETITIONER TO PAY THE PRIVATE RESPONDENT THE
REASONABLE VALUE OF LOT 954 AND THE AMOUNT OF TEN
THOUSAND (P10,000.00) PESOS AS REASONABLE ATTORNEYS FEES.
41
 Petitioner Bomedco reiterates its claim of ownership of the
land through extraordinary acquisitive prescription under Article 1137 of the
Civil Code and laches to defeat the claim for compensation or recovery of
possession by respondent heirs. It also submits a third ground originally
tendered by the trial court acquisition of the easement of right of way by
prescription under Article 620 of the Civil Code.
Extraordinary Acquisitive Prescription
Under Art. 1137 of the Civil Code
Petitioners claim of ownership through extraordinary acquisitive
prescription under Article 1137 of the Civil Code cannot be sustained.
There is no dispute that the controversial strip of land has been in the
continuous possession of petitioner since 1929. But possession, to constitute
the foundation of a prescriptive right, must be possession under a claim of
title, that is, it must be adverse.[21] Unless coupled with the element of
hostility towards the true owner, possession, however long, will not confer
title by prescription.[22]
After a careful review of the records, we are inclined to believe the
version of respondent heirs that an easement of right of way was actually
granted to petitioner for which reason the latter was able to occupy Cadastral
Lot No. 954. We cannot disregard the fact that, for the years 1930, 1937,
1949, 1962 and 1963, petitioner unequivocally declared the property to be a
central railroad right of way or sugar central railroad right of way in its real
estate tax receipts when it could have declared it to be industrial land as it
did for the years 1975 and 1985.[23] Instead of indicating ownership of the lot,
these receipts showed that all petitioner had was possession by virtue of the
right of way granted to it. Were it not so and petitioner really owned the land,
petitioner would not have consistently used the phrases central railroad right
of way and sugar central railroad right of way in its tax declarations until
1963. Certainly an owner would have found no need for these phrases. A
person cannot have an easement on his own land, since all the uses of an
easement are fully comprehended in his general right of ownership.[24]
While it is true that, together with a persons actual and adverse
possession of the land, tax declarations constitute strong evidence of
ownership of the land occupied by him,[25] this legal precept does not apply in
cases where the property is declared to be a mere easement of right of way.
An easement or servitude is a real right, constituted on the corporeal
immovable property of another, by virtue of which the owner has to refrain
from doing, or must allow someone to do, something on his property, for the
benefit of another thing or person. It exists only when the servient and
dominant estates belong to two different owners. It gives the holder of the
easement an incorporeal interest on the land but grants no title thereto.
Therefore, an acknowledgment of the easement is an admission that the
property belongs to another.[26]
Having held the property by virtue of an easement, petitioner cannot
now assert that its occupancy since 1929 was in the concept of an
owner. Neither can it declare that the 30-year period of extraordinary
acquisitive prescription started from that year.
Petitioner, however, maintains that even if a servitude was merely
imposed on the property in its favor, its possession immediately became
adverse to the owner in the late 1950s when the grant was alleged by
respondent heirs to have expired. It stresses that, counting from the late
1950s (1959 as found by the trial court), the 30-year extraordinary acquisitive
prescription had already set in by the time respondent heirs made a claim
against it in their letters dated March 1 and April 6, 1989.
We do not think so. The mere expiration of the period of easement in
1959 did not convert petitioners possession into an adverse one. Mere
material possession of land is not adverse possession as against the owner
and is insufficient to vest title, unless such possession is accompanied by the
intent to possess as an owner.[27] There should be a hostile use of such a
nature and exercised under such circumstances as to manifest and give
notice that the possession is under a claim of right.
In the absence of an express grant by the owner, or conduct by
petitioner sugar mill from which an adverse claim can be implied, its
possession of the lot can only be presumed to have continued in the same
character as when it was acquired (that is, it possessed the land only by
virtue of the original grant of the easement of right of way),[28] or was by mere
license or tolerance of the owners (respondent heirs). [29] It is a fundamental
principle of law in this jurisdiction that acts of possessory character executed
by virtue of license or tolerance of the owner, no matter how long, do not
start the running of the period of prescription.[30]
After the grant of easement expired in 1959, petitioner never performed
any act incompatible with the ownership of respondent heirs over Cadastral
Lot No. 954. On the contrary, until 1963, petitioner continued to declare the
sugar central railroad right of way in its realty tax receipts, thereby
doubtlessly conceding the ownership of respondent heirs. Respondents
themselves were emphatic that they simply tolerated petitioners continued
use of Cadastral Lot No. 954 so as not to jeopardize the employment of one
of their co-heirs in the sugar mill of petitioner.[31]
The only time petitioner assumed a legal position adverse to
respondents was when it filed a claim over the property in 1965 during the
cadastral survey of Medellin. Since then (1965) and until the filing of the
complaint for the recovery of the subject land before the RTC of Cebu in
42
1989, only 24 years had lapsed. Since the required 30-year extraordinary
prescriptive period had not yet been complied with in 1989, petitioner never
acquired ownership of the subject land.
Laches
Neither can petitioner find refuge in the principle of laches. It is not just
the lapse of time or delay that constitutes laches. The essence of laches is
the failure or neglect, for an unreasonable and unexplained length of time, to
do that which, through due diligence, could or should have been done earlier,
thus giving rise to a presumption that the party entitled to assert it had either
abandoned or declined to assert it.[32]
Its essential elements are: (a) conduct on the part of the defendant, or of
one under whom he claims, giving rise to the situation complained of; (b)
delay in asserting complainants rights after he had knowledge of defendants
acts and after he has had the opportunity to sue; (c) lack of knowledge or
notice by defendant that the complainant will assert the right on which he
bases his suit; and (d) injury or prejudice to the defendant in the event the
relief is accorded to the complainant.[33]
The second element (which in turn has three aspects) is lacking in the
case at bar. These aspects are: (a) knowledge of defendant's action, (b)
opportunity to sue defendant after obtaining such knowledge and (c) delay in
the filing of such suit.[34]
Records show that respondent heirs only learned about petitioners claim
on their property when they discovered the inscription for the cadastral
survey in the records of the Bureau of Lands in 1989. Respondents lost no
time in demanding an explanation for said claim in their letters to the
petitioner dated March 1, 1989 and April 6, 1989. When petitioner ignored
them, they instituted their complaint before the Regional Trial Court of Cebu
City on June 8, 1989.
Petitioners reliance on Caro vs. Court of Appeals [35] and Vda. de
Alberto vs. Court of Appeals [36] is misplaced. There, laches was applied to
bar petitioners from questioning the ownership of the disputed properties
precisely because they had knowledge of the adverse claims on their
properties yet tarried for an extraordinary period of time before taking steps
to protect their rights.
Further, there is no absolute rule on what constitutes laches. It is a rule
of equity and applied not to penalize neglect or sleeping on ones rights but
rather to avoid recognizing a right when to do so would result in a clearly
unfair situation. The question of laches is addressed to the sound discretion
of the court and each case must be decided according to its particular
circumstances.[37] It is the better rule that courts, under the principle of equity,
should not be guided or bound strictly by the statute of limitations or the
doctrine of laches if wrong or injustice will result.
It is clear that petitioner never acquired ownership over Cadastral Lot
No. 954 whether by extraordinary acquisitive prescription or by laches.
Acquisition of Easement of Right of Way By
Prescription Under Art. 620 of the Civil Code
Petitioner contends that, even if it failed to acquire ownership of the
subject land, it nevertheless became legally entitled to the easement of right
of way over said land by virtue of prescription under Article 620 of the Civil
Code:
Continuous and apparent easements are acquired either by virtue of a title or
by prescription of ten years.
The trial court and the Court of Appeals both upheld this view for the
reason that the railroad right of way was, according to them, continuous and
apparent in nature. The more or less permanent railroad tracks were
visually apparent and they continuously occupied the subject strip of land
from 1959 (the year the easement granted by Feliciana Santillan to petitioner
expired). Thus, with the lapse of the 10-year prescriptive period in 1969,
petitioner supposedly acquired the easement of right of way over the subject
land.
Following the logic of the courts a quo, if a road for the use of vehicles
or the passage of persons is permanently cemented or asphalted, then the
right of way over it becomes continuous in nature. The reasoning is
erroneous.
Under civil law and its jurisprudence, easements are either continuous
or discontinuous according to the manner they are exercised, not according
to the presence of apparent signs or physical indications of the existence of
such easements. Thus, an easement is continuous if its use is, or may be,
incessant without the intervention of any act of man, like the easement of
drainage;[38] and it is discontinuous if it is used at intervals and depends on
the act of man, like the easement of right of way.[39]
The easement of right of way is considered discontinuous because it is
exercised only if a person passes or sets foot on somebody elses land. Like
a road for the passage of vehicles or persons, an easement of right of way of
railroad tracks is discontinuous because the right is exercised only if and
43
when a train operated by a person passes over another's property. In other
words, the very exercise of the servitude depends upon the act or
intervention of man which is the very essence of discontinuous easements.
The presence of more or less permanent railroad tracks does not in any
way convert the nature of an easement of right of way to one that is
continuous. It is not the presence of apparent signs or physical
indications showing the existence of an easement, but rather the manner of
exercise thereof, that categorizes such easement into continuous or
discontinuous. The presence of physical or visual signs only classifies an
easement into apparent or non-apparent. Thus, a road (which reveals a right
of way) and a window (which evidences a right to light and view) are
apparent easements, while an easement of not building beyond a certain
height is non-apparent.[40]
In Cuba, it has been held that the existence of a permanent railway
does not make the right of way a continuous one; it is only apparent.
Therefore, it cannot be acquired by prescription.[41] In Louisiana, it has also
been held that a right of passage over another's land cannot be claimed by
prescription because this easement is discontinuous and can be established
only by title.[42]
In this case, the presence of railroad tracks for the passage of
petitioners trains denotes the existence of an apparent but discontinuous
easement of right of way. And under Article 622 of the Civil Code,
discontinuous easements, whether apparent or not, may be acquired only by
title. Unfortunately, petitioner Bomedco never acquired any title over the use
of the railroad right of way whether by law, donation, testamentary
succession or contract. Its use of the right of way, however long, never
resulted in its acquisition of the easement because, under Article 622, the
discontinuous easement of a railroad right of way can only be acquired by
title and not by prescription.
To be sure, beginning 1959 when the original 30-year grant of right of
way given to petitioner Bomedco expired, its occupation and use of Cadastral
Lot No. 954 came to be by mere tolerance of the respondent heirs. Thus,
upon demand by said heirs in 1989 for the return of the subject land and the
removal of the railroad tracks, or, in the alternative, payment of
compensation for the use thereof, petitioner Bomedco which had no title to
the land should have returned the possession thereof or should have begun
paying compensation for its use.
But when is a party deemed to acquire title over the use of such land
(that is, title over the easement of right of way)? In at least two cases, we
held that if: (a) it had subsequently entered into a contractual right of way
with the heirs for the continued use of the land under the principles of
voluntary easements or (b) it had filed a case against the heirs for
conferment on it of a legal easement of right of way under Article 629 of the
Civil Code, then title over the use of the land is deemed to exist. The
conferment of a legal easement of right of way under Article 629 is subject to
proof of the following:
(1) it is surrounded by other immovables and has no adequate
outlet to a public highway;
(2) payment of proper indemnity;
(3) the isolation is not the result of its own acts; and
(4) the right of way claimed is at the point least prejudicial to the
servient estate, and, insofar as consistent with this rule, the
distance from the dominant estate to the highway is the
shortest.[43]
None of the above options to acquire title over the railroad right of way
was ever pursued by petitioner despite the fact that simple resourcefulness
demanded such initiative, considering the importance of the railway tracks to
its business. No doubt, it is unlawfully occupying and using the subject strip
of land as a railroad right of way without valid title yet it refuses to vacate it
even after demand of the heirs. Furthermore, it tenaciously insists on
ownership thereof despite a clear showing to the contrary.
We thus uphold the grant by the Court of Appeals of attorneys fees in
the amount of P10,000 considering the evident bad faith of petitioner in
refusing respondents just and lawful claims, compelling the latter to
litigate.[44]
WHEREFORE, the petition is DENIED. The appealed decision dated
November 17, 1995 and resolution dated March 2, 1996 of the Court of
Appeals are AFFIRMED with MODIFICATION. Petitioner Bogo-Medellin
Milling Company, Inc. is hereby ordered to vacate the subject strip of land
denominated as Cadastral Lot No. 954, remove its railway tracks thereon
and return its possession to the private respondents, the heirs of Magdaleno
Valdez, Sr. It is also hereby ordered to pay private respondents attorney's
fees in the amount of P10,000.
SO ORDERED.
JUAN GARGANTOS, petitioner,
vs.
TAN YANON and THE COURT OF APPEALS, respondents.
44
Jose T. Nery for petitioner.
Constantino P. Tadena for respondents.
GUTIERREZ DAVID, J.:
Juan Gargantos appeals by certiorari from the decision of the Court of
Appeals reversing the judgment of the Court of First Instance of Romblon.
The record discloses that the late Francisco Sanz was the former owner of a
parcel of land containing 888 square meters, with the buildings and
improvements thereon, situated in the poblacion of Romblon. He subdivided
the lot into three and then sold each portion to different persons. One portion
was purchased by Guillermo Tengtio who subsequently sold it to Vicente Uy
Veza. Another portion, with the house of strong materials thereon, was sold
in 1927 to Tan Yanon, respondent herein. This house has on its northeastern
side, doors and windows over-looking the third portion, which, together with
the camarin and small building thereon, after passing through several hands,
was finally acquired by Juan Gargantos, petitioner herein.
On April 23, 1955, Gargantos applied to the Municipal Mayor for a permit to
demolish the roofing of the old camarin. The permit having been granted,
Gargantos tore down the roof of the camarin. On May 11, 1955, Gargantos
asked the Municipal Council of Romblon for another permit, this time in order
to construct a combined residential house and warehouse on his lot. Tan
Yanon opposed approval of this application.
Because both the provincial fiscal and district engineer of Romblon
recommended granting of the building permit to Gargantos, Tan Yanon filed
against Gargantos an action to restrain him from constructing a building that
would prevent plaintiff from receiving light and enjoying the view trough the
window of his house, unless such building is erected at a distance of not less
than three meters from the boundary line between the lots of plaintiff and
defendant, and to enjoin the members of Municipal Council of Romblon from
issuing the corresponding building permit to defendant. The case as against
the members of the Municipal Council was subsequently dismissed with
concurrence of plaintiff's council. After trial, the Court of First Instance of
Romblon rendered judgment dismissing the complaint and ordering plaintiff
to pay defendant the sum of P12,500.00 by way of compensatory,
exemplary, moral and moderate damages.
On appeal, the Court of Appeals set aside the decision of the Court of First
Instance of Romblon and enjoined defendant from constructing his building
unless "he erects the same at a distance of not less than three meters from
the boundary line of his property, in conformity with Article 673 of the New
Civil Code."
So Juan Gargantos filed this petition for review of the appellate Court's
decision. The focal issue herein is whether the property of respondent Tan
Yanon has an easement of light and view against the property of petitioner
Gargantos.
The kernel of petitioner's argument is that respondent never acquired any
easement either by title or by prescription. Assuredly, there is no deed
establishing an easement. Likewise, neither petitioner nor his predecessors-
in-interest have ever executed any deed whereby they recognized the
existence of the easement, nor has there been final judgment to that effect.
Invoking our decision in Cortes vs. Yu-Tibo (2 Phil., 24), petitioner maintains
that respondent has not acquired an easement by prescription because he
has never formally forbidden petitioner from performing any act which would
be lawful without the easement, hence the prescriptive period never started.
It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and
the doctrine in the Yu-Tibo case are not applicable herein because the two
estates, that now owned by petitioner, and that owner by respondent, were
formerly owned by just one person, Francisco Sanz. It was Sanz who
introduced improvements on both properties. On that portion presently
belonging to respondent, he constructed a house in such a way that the
northeastern side thereof extends to the wall of the camarin on the portion
now belonging to petitioner. On said northeastern side of the house, there
are windows and doors which serve as passages for light and view. These
windows and doors were in existence when respondent purchased the house
and lot from Sanz. The deed sale did not provide that the easement of light
and view would not be established. This then is precisely the case covered
by Article 541, O.C.C (now Article 624, N.C.C) which provides that the
existence of an apparent sign of easement between two estates, established
by the proprietor of both, shall be considered, if one of them is alienated, as a
title so that the easement will continue actively and passively, unless at the
time the ownership of the two estate is divided, the contrary is stated in the
deed of alienation of either of them, or the sign is made to disappear before
the instrument is executed. The existence of the doors and windows on the
northeastern side of the aforementioned house, is equivalent to a title, for the
visible and permanent sign of an easement is the title that characterizes its
existence (Amor vs. Florentino, 74 Phil., 403). It should be noted, however,
that while the law declares that the easement is to "continue" the easement
actually arises for the first time only upon alienation of either estate,
inasmuch as before that time there is no easement to speak of, there being
45
but one owner of both estates (Articles 530, O.C.C., now Articles 613, manage the condominium project and to hold title to all the common
N.C.C). areas. Title to the land on which the condominium stands was transferred
to Cypress under Transfer Certificate of Title No. S-67513. But Goldcrest
We find that respondent Tan Yanon's property has an easement of light and retained ownership of the two-level penthouse unit on the ninth and tenth
view against petitioner's property. By reason of his easement petitioner floors of the condominium registered under Condominium Certificate of Title
cannot construct on his land any building unless he erects it at a distance of (CCT) No. S-1079 of the Register of Deeds of Makati City. Goldcrest and its
not less than three meters from the boundary line separating the two estates. directors, officers, and assigns likewise controlled the management and
administration of the Condominium until 1995.
Wherefore, the appealed decision is hereby affirmed with costs against Following the turnover of the administration and management of the
Condominium to the board of directors of Cypress in 1995, it was discovered
petitioner.
that certain common areas pertaining to Cypress were being occupied and
encroached upon by Goldcrest. Thus, in 1998, Cypress filed a complaint with
Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, damages against Goldcrest before the Housing and Land Use Regulatory
Reyes, J.B.L., and Barrera, JJ., concur. Board (HLURB), seeking to compel the latter to vacate the common areas it
allegedly encroached on and to remove the structures it built
GOLDCREST REALTY G.R. No. 171072 thereon. Cypress sought to remove the door erected by Goldcrest along the
CORPORATION, stairway between the 8th and 9th floors, as well as the door built in front of the
Petitioner, Present: 9th 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
QUISUMBING, J., Chairperson, of the said areas and for its refusal to remove the questioned structures.
CARPIO MORALES, For its part, Goldcrest averred that it was granted the exclusive use
- versus - TINGA, of the roof decks limited common area by Section 4(c)[4] of the condominiums
VELASCO, JR., and Master Deed. It likewise argued that it constructed the contested doors for
BRION, JJ. 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
CYPRESS GARDENS Promulgated: fronting the two elevators on the ninth floor as a storage room. It was likewise
CONDOMINIUM CORPORATION, discovered that Goldcrest constructed a permanent structure which
Respondent. April 7, 2009 encroached 68.01 square meters of the roof decks common area.[6]
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x During the second inspection, it was noted that Goldcrest failed to
DECISION secure an alteration approval for the said permanent structure.
QUISUMBING, J.: In his Decision[7] dated December 2, 1999, Arbiter San Vicente ruled
For review on certiorari are the Decision[1] dated September 29, in favor of Cypress. He required Goldcrest, among other things, to: (1)
2005 and the Resolution[2] dated January 16, 2006 of the Court of Appeals in remove the questioned structures, including all other structures which inhibit
CA G.R. SP No. 79924. the free ingress to and egress from the condominiums limited and unlimited
The antecedent facts in this case are as follows: common areas; (2) vacate the roof decks common areas and to pay actual
Petitioner Goldcrest Realty Corporation (Goldcrest) is the developer damages for occupying the same; and (3) pay an administrative fine for
of Cypress Gardens, a ten-storey building located at Herrera constructing a second penthouse and for making an unauthorized alteration
Street, Legaspi Village, Makati City. On April 26, 1977, Goldcrest executed a of the condominium plan.
Master Deed and Declaration of Restrictions[3] which On review, the HLURB Special Division modified the decision of
constituted Cypress Gardens into a condominium project and incorporated Arbiter San Vicente. It deleted the award for actual damages after finding that
respondent Cypress Gardens Condominium Corporation (Cypress) to the encroached areas were not actually measured and that there was no
46
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
hereby AFFIRMED.
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
47
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 hereby AFFIRMED. Costs against the petitioner.
SO ORDERED.
ESTER JAVELLANA, ROLANDO DEMAFILES, CESAR CRUZADA and
ANTONIO SISON, petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT, 4th CIVIL CASES DIVISION,
MARSAL & CO., INC., and MARCELINO FLORETE, SR., respondents.
PARAS, J.:
Before Us is a Petition for certiorari to review the Decision 1 dated August
14,1985 promulgated by respondent Intermediate Appellate Court in AC-G.R.
C.V. No. 03781 which set aside the decision 2 rendered by the Regional Trial
Court, 6th Judicial Region, Branch XXVI, Iloilo City, dated December 15,
1983 in Civil Case No. 12791.
The case at bar arose from a complaint for recovery of damages filed by
Marsal & Co., Inc. and Marcelino Florete, Sr. (private respondents herein)
against defendants Jose C. Hernani, Ester J. Javellana, Rolando Demafiles,
Cesar Crusada and Antonio Sison for allegedly denying plaintiffs' access to,
and use of a canal leading to plaintiffs' property and to enjoin the City Mayor
and City Engineer of Iloilo City from demolishing the existing structures within
plaintiffs property serving as dike entrance gate to said canal situated at
Barangay Navais, Mandurriao, Iloilo City. Before the pre-trial conference the
complaint as against the City Mayor and City Engineer, was dismissed at the
instance of plaintiffs on the ground that said defendants had agreed not to
demolish the pendency of the action.
At the pre-trial conference, on June 5,1979 the parties stipulated:
48
 ... (1) that plaintiff Marsal & Co., Inc., is presently the owner
of the parcel of land adjoining the Iloilo River up to and
adjacent the lot where the L. Borres Elementary School is
located at Barangay Navais Mandurriao, Iloilo; (2) that in
1961, when Marcelino Florete, Sr. was still the owner of said
Marsal property having acquired the same by purchase from
its former owners sometime in 1959, there existed a main
canal from the Iloilo River cutting across said property
towards the lot where the said school is located and thru a
canal that traverses the school premises going towards Lot
2344; (3) that sometime in July 1978, plaintiffs closed the
dike entrance of the main canal to the canal running across
the L. Borres Elementary School premises to Lot 2344; (4)
that on petition of school P.T.A. officials of Barangay Navais,
an ocular inspection of the premises was made as a result of
which a report dated November 7, 1978 was prepared and
submitted by 2nd Asst. City Fiscal Serafin Abogado; (5) that
before 1971, there were no houses standing within the
school compound and premises of L. Borres Elementary
School; (6) that at present, there are 15 to 16 houses in the
said school compound one of which is the house of the
barangay captain of Barangay Navais; (7) that some of those
who signed the petition (Exh. "7") are not residents or
occupants of the houses within the school compound; (8)
that the photograph (Exh. "A") is the aerial photograph of the
premises in question showing the location of the L. Borres
Elementary School, the properties of the plaintiffs, the Iloilo
River and the Borres property; (9) that the plaintiffs had
demolished the dike connecting the main canal in plaintiffs'
property with the canal running thru the school premises
toward 2344; and (10) that defendant Director Jose C.
Hernani had invited plaintiff Marcelino Florete, Sr. for
conference concerning the complaint of the residents of
Barangay Navais on July 28, and 31, 1978 as per Exhs. "9"
and "10" (pp. 35-36, Rollo)
The issues as defined by the parties are:
(1) Whether or not them main canal and the canal traversing
the premises of the L. Borres Elementary School going
towards Lot 2344 existing only beginning 1961 as claimed by
the plaintiffs or since time immemorial as contended by the
defendants; (2) Whether or not it was plaintiff Marcelino
Florete, Sr. who had constructed the main canal as well as
the canal running thru the premises of the L. Borres
Elementary School to Lot 2344; (3) Whether or not the
closing of the dike entrance connecting the main canal with
the canal running thru the school premises caused the
flooding of the premises of L. Borres Elementary School and
its vicinity; (4) whether or not an easement or servitude of
water-right-of-way was constituted on the property of the
plaintiffs as servient estate in favor of the L. Borres
Elementary School land and nearby lands as dominant
estates; (5) Whether or not defendants acted in their
respective private or official capacities in dealing with the
problem related to the canals in question; (6) Whether or not
the defendant Ester Javellana had denied plaintiffs the use
of the canal running from the main canal thru the school
premises to Lot 2344 of the plaintiffs; (7) Whether or not the
demolition or closure by plaintiffs of the entrance-dike
connecting the main canal with the canal running thru the L.
Borres Elementary School preventing the free flow of water
to and from the school premises and vicinity violates the
provisions of Presidential Decree 296; and (8) Whether or
not either party may be held liable to the other for damages.
(Rollo, pp. 35-37)
After due trial, judgment was rendered by the trial court, the dispositive
portion reading as follows:
WHEREFORE, judgment is hereby rendered dismissing
plaintiffs' complaint.
On defendants' counterclaim, the plaintiffs are hereby
ordered to restore and reopen the dike entrance connecting
the main canal with the canal running thru the premises of L.
Borres Elementary School and to demolish any and all
structures within plaintiffs' property that impede the free flow
of water to and from the Iloilo River thru the said canals.
Further, plaintiffs Marsal & Co., Inc. and Marcelino Florete,
Sr. are hereby ordered to pay, jointly and severally, each of
the defendants, Jose C. Hernani, Ester J. Javellana,
Rolando Demafiles, Cesar Cruzada and Antonio Sison, the
following sums, to wit: (1) P10,000.00 for moral damages
and (2) P2,500.00 for exemplary damages and (3)
P2,500.00 for and as attorney's fees of the total sum of
P15,000.00 each, plus costs.
49
 SO ORDERED.
(P. 46, Rollo)
Not satisfied with said judgment, plaintiffs appealed to the Intermediate
Appellate Court which rendered the assailed decision, its dispositive portion
stating as follows:
WHEREFORE, finding the decision appealed from not
consistent with the facts and the law applicable, the same is
hereby set aside and another one entered-
1. Granting the issuance of the writ of preliminary injunction
sought in the complaint to become permanent upon the
finality of this decision;
2. Ordering the defendants-appellees to respect plaintiffs'
rights and to refrain from demolishing and/or causing the
demolition of the dikes built by plaintiff (Florete, Sr.) on his
property;
Costs de oficio.
SO ORDERED. (pp. 57-58, Rollo)
Petitioners contend that the decision of the Appellate Court is contrary to law,
its conclusions based entirely on speculations and conjectures and there is
grave abuse of discretion in that the findings of fact are without competent
evidence to support them. Petitioners argue that the respondent Appellate
Court erred in holding:
I
That the canal in question was built by plaintiff-appellant
purposely to make water available to its own Lot 2344.
(Decision, p. 8)
II
That the plaintiff-appellant is the one that has the right of
easement upon the lot occupied by the barrio school.
Plaintiff-appellant is thus the dominant estate and not the L.
Borres Elementary School. (Decision, p. 8)
III
That the school, in violation of the said easement, allowed
other parties to use the canal for salt production in
competition with the salt business of plaintiff-appellant which
is conducted in Lot 2344. (Decision, p. 8)
IV
That the canal which traverses plaintiff's property never
benefitted the school. It was only after plaintiff built the canal
starting from its fishpond up to its other property that the
school benefited from the water coming from the river.
(Decision, p. 10)
V
That aside from the plaintiff's property there is another parcel
of land which is more than adequate to provide the drainage
sought by the defendants and this is the Borres property.
(Decision, p. 10)
The petition is worthy of consideration. In the Appellate Court's decision, it is
noted that said court relied heavily on the findings of facts of the trial court
even to the extent of quoting such findings in its decision in support of its
ruling. However, the conclusions reached by both courts were different.
Petitioners now question the correctness of the conclusions drawn by the
respondent Court of Appeals from the proven facts enumerated by the trial
court. This determination as to the correctness of the conclusions drawn from
the pleadings is a question of law which this Court is authorized to pass
upon. There is no question of fact here because the facts are admittedly
proven. Said facts are reproduced hereunder:
The Court finds from the evidence that the main canal had
been in existence long before defendant Marcelino Florete,
Sr. acquired ownership of the land thru which the same
passes from the Iloilo River up to the premises of what is
now known as the L. Borres Elementary School. This fact
was clearly brought to light by the testimonies of at least
three witnesses, including a member of the Maranon family
50
from whom Florete, Sr. acquired the land, in addition to the
testimony of defendant Antonio Sison, Barangay Captain of
Barangay Navais where the subject canal is situated.
The Court, indeed, finds no reason to doubt the testimonies
of these witnesses not only because they ring true
throughout but also because the same emanate from reliable
sources who had been actual residents of the place, having
had occasions to take their bath in the same canal and with
separate individual experiences incident thereto to relate.
Severo Maranon, a public school teacher and one of the
children of the late Buenaventura Maranon, a co-owner of
the fishpond purchased by plaintiff Florete, Sr. testified that
as early as 1948, when he was about 6 years old, he already
knew the subject canal that passes thru their fishpond at
Barangay Navais from the Iloilo River towards the premises
of the school. On one occasion in 1954, while taking a bath
in this canal when still a young boy, he nearly drowned,
reasons for which he has not forgotten the said canal.
Another witness, Ignacio Gencianeo, 75, a former employee
of the Bureau of Public Highways, testified that when he was
still single, being a resident of Barangay Navais, he used to
take a bath in the canal near the Iloilo River which is deeper
than the other portions. He recalled an incident where a
woman, named Toribia Tajaon, while picking shells at the
sides of the dikes, fell into the canal and nearly got drowned
had he not helped her. He last took a bath in the canal in
1937 before he got employed at the Bureau of Public
Highways.
Witness Gencianeo also testified that he was then the Barrio
Captain of Navais when the Barrio School was constructed
in 1940 on the land owned by Lucas Borres.
Francisco Regacho, 56, testifying for the defendants,
declared that in 1948, his house was located beside the
canal near the Iloilo River and the land thereat was then
owned by Buenaventura Maranon. When the barrio school
was constructed in 1940, he worked filling sand on the
school site. He was able to lease the school fishpond from
1973 to 1977. This fishpond draws its supply of salt water
from the canal coming from the Iloilo River. He had
previously worked this main canal in 1948 as part of his job
in the fishpond of Buenaventura Maranon fixing its dikes in
order to make water flow freely towards the fishpond of the
Maranon family.
Witness Regacho further declared that when defendant
Marcelino Florete, Sr. became owner of this Maranon
fishpond, he was able to work on this canal where he dug
the canal deeper up to Florete's land. He testified that during
high tide the water in the canal was only about 1/2 meter
deep and there was no water during low tide and so Florets
made the canal deeper.
Regacho also testified that there are two canals within the
school premises, one going towards the land of Florete and
the other to the land of Mirasol. These two canals met at the
place where Florete closed the canal. The canal going
towards Florete's land and that to Mirasol's land serve to
empty rainwater to the Iloilo River. He further confirmed that
the school fishpond has no other source of salt water except
from the canal that connect to the main canal that starts from
the Iloilo River.
For his part, defendant Antonio Sison, 54, testified that he
was born in Barangay Navais and has been its barangay
captain since 1954 continuously up to the present. He first
noticed the existence of the canal in 1933 when he reached
the age of reason at the age of 8 years, said canal being
about 300 meters long from the Iloilo River going towards
the premises of the barrio school and to the land now known
as Lot 2344 owned by Marcelino Florete. He also used to
take a bath in this canal when still a small boy.
Defendant Sison further declared that the brothers Pedro
and Buenaventura Maranon were then the owners of the
fishpond along which the canal runs starting from the Iloilo
River towards the school premises when the Maranons sold
the land to Florete sometime in 1959. Florete was not the
one who constructed the canal but only made the same
deeper.
This construction of Florete took place in 1961 when Sison
was also the barangay captain. He recalled Francisco
Regacho was one of those who worked in making the canal
51
deeper at the instance of Florete and that no employee from
the City Engineer's Office inspected the canal during its
repair undertaken by Florete and where Alfredo Emboltorio,
as the one who managed the work in the canal.
Defendant Sison went to see Pedro Maranon, who was once
a co-owner of the land where the main canal passes, to
request him to testify but the latter begged off by reason of
his health and old age and, instead, executed an affidavit
dated May 14, 1979 (Exh. "8") certifying to the effect that
"since before the war until we sold the said land to Marcelino
Florete, there exists a canal from the Iloilo River cutting our
property down towards the lot where the school is located
and thru a canal that traverses the school premises. (par. 4.
Exh. "8")
It is thus clear from the testimonies of defendants' witnesses
that the main canal starting from the Iloilo River and the
canal traversing the premises of the L. Borres Elem. School
going toward lot 2344 existed long before defendant Florete,
Sr. acquired ownership of the land of the Maranons and that,
if at all, Florete merely caused to be made deeper that
portion traversing the school premises.
No less than the defendants' evidence itself proved the
existence of the main canal. Thus, in his letter dated June
26,1961 embodied in Resolution No. 715 dated June
27,1961 of the Municipal Board of the City of Iloilo (Exh. "B")
defendant Florete Sr. asked that he be allowed to build a
canal within the premises of the barrio school up to his Lot
2344. It is not, therefore, a permit to build a canal from the
Iloilo River for otherwise, Florete would have so stated in his
said letter to the Board. This is so because there already
existed a main canal from the Iloilo River. The canal
traversing the school premises was likewise then already
existing but not so deep that Florete wanted it constructed to
be permanent. And in making this canal deeper, he started
not from the Iloilo River but from his fishpond adjoining the
school premises towards his lot 2344, Florete testified thus:
Q. (Court) - From what point did you start?
A From our fishpond traversing the Borres
Elementary and then going to our lot. (TSN,
July 5, 1979, page 22).
Defendants presented in evidence a blueprint copy of the
Cadastral Map. B. L. No. 3 (Exh. "F") to show that no natural
waterway or creek existed in the pre that connected the Iloilo
River to the fishpond premises. But this piece of evidence
was rendered without any probative value when plaintiffs
also presented Teodoro Simpas, Chief of the Surveys
Division of the Bureau of Lands, Region IV, who testified that
creeks and esteros are delienated in the cadastral map only
if they are five (5) or more meters wide and, even less than
five (5) meters wide, if there is continuous flow of water is to
be determined by the surveyor who made the survey.
Here, it has been duly established that the canal in question
starting from the Iloilo River is only about 3 meters wide for
the first 100 meters long and then measures about 2 meters
wide until it reaches Lot 2344 with a length of about 200
meters. And it has been shown that salt water coming from
the Iloilo River flows in the canal during high tide where the
water in the main canal reaches about one-half meter and
about two (2) feet in the canal that traverses the school
premises. In ordinary days, no water flows in the canal that
cuts a the school premises . This explains why the canal in
question was not indicated in the cadastral map during the
1913 survey. The canal is less than 5 meters wide and did
not have a continuous flow of water except during high tide
and during rainy season where it serves as drainage and
empties flood waters into the Iloilo River.
Defendants' closure of the dike's entrance connecting the
main canal with the canal running thru the school premises,
therefore, caused the flooding of the premises of the L.
Borres Elementary School and its vicinity. This is so because
during rainy season, said canal also serves as outlet of rain
or flood waters that empties to the Iloilo River. Witnesses
Ignacio Gencianeo, Francisco Regacho, Severo Maranon
and Barangay Captain Antonio Sison were unanimous in
declaring so.
In his attempt to show that the closing of the dike entrance of
the canal did not cause the flooding of the school premises
52
and its vicinity, plaintiffs' witnesses Modesto Emboltorio,
declared that flood in the school fishpond immediately
disappears because water recedes to the Borres property.
But it has been shown that the adjacent Borres property is
higher in elevation compared to the school premises such
that water in the school premises cannot flow towards that
area. And because water has no other way out except thru
the canal, the school premises and its vicinity get flooded
once it rains and flood waters remain stagnant for days as
shown by the photographs exhibits "3" and "3-A" taken on
August 24,1978 and Exhibits "10" and "10-A" taken on
August 15, 1979. The said photographs Exhibits "l 0" and
"10-A" belied Emboltorio's testimony that there were no flood
waters in that area when he testified in Court in the morning
of August 14, 1979.
That the premises of the school and its vicinity were flooded
when it rained during the rainy season of 1978 immediately
after the closing of the dike entrance of the canal is further
shown by the report (Exh. "4") dated September 3, 1978
submitted by Carlos G. Brasileno, Asst. Complaint & Acting
Officer, Barangay City secretariat and the 6th Indorsement
(Exh. "'I") dated November 7,1978 of 2nd Asst. City Fiscal
Serafin L. Abogado. These two officials were with the
government teams that conducted ocular inspection of the
place upon complaint of the residents therein and they
actually saw for themselves the flooded situation of the place
caused by plaintiffs' closure of the dike entrance of subject
canal.
To be sure, the defendants acted in their official capacities in
dealing with the problem related to the canals in question. It
has been sufficiently established that the school fishpond
gets its supply of salt water directly from the Iloilo River
passing thru the canal that traverses the school premises.
Likewise, the residents of the place produce salt thru the use
of plastic sheets using salt water drawn from the canal. Salt
water in this canal is fresh and clean as the tide changes
from the Iloilo River unlike in the fishpond nearby which is
stagnant and polluted and not suitable for salt- making.
The closure of the dike entrance of the canal deprived the
school fishpond as well as the residents of the place of salt-
water and placed the premises of the school and the
surrounding vicinity in danger of being flooded when it rains
so that the school officials, the defendants Ester Javellana,
as district supervisor, Cesar Cruzada as head teacher and
Rolando Demafiles as practical arts teacher and the
barangay captain, Antonio Sison only did what were
incumbent upon them to do as such school and barangay
officials when they complained to higher authorities about
the plaintiffs' closure of the canal in question.
Indeed, there is no showing that the defendants school
officials were motivated by their own personal interests when
they complained against plaintiffs' action vis-a-vis the canal.
Their effort were all directed towards the benefit of the
school as well as for the school children who, in one way or
another, had been adversely affected by the closure of the
canal. These officials did not act privately for themselves but
for public good and public interest. They expected no
personal benefit in return.
The same is true with the defendant barangay captain
Antonio Sison who merely complied with his duty extending
assistance to the residents of bringing their complaint to the
authorities concerned. It was his duty to attend to the needs
and problems of his barangay and its residents. The closure
of the canal did not only deprive the residents of salt water
for salt- making but also posed danger to them as in fact,
during the ensuing rainy days in August of 1978, the place
was flooded thus endangering the health and safety of the
residents therein.
Then, too, defendant Col. Jose Hernani only did his duty as
head of the Office of Civil Defense in attending to the
complaint of the residents of the place. His office has
jurisdiction over cases of calamity, flood and the like such
that it was but proper, nay obligatory, on his part to act on
their complaint against the closure of the canal that caused
flood in Barangay Navais
The fact is that plaintiffs are without any justifiable reason to
close the canal. Defendants advanced that the district
supervisor, defendant Ester Javellana, wrote Marcelino
Florete Sr. a letter allegedly denying his use of the canal that
traverses the school premises reason for which he closed
the dike entrance and built an underground canal on the
53
other side of his property going to his Lot 2344. But
defendant Javellana explained that there was no such
denial. What she meant when she wrote the letter to
Marcelino Florete, Sr. was that plaintiffs could not lay pipes
underneath the canal. Defendant Ester Javellana testified
thus:
Q Could you inform the Hon. Court Mrs.
Javellana what impelled you to write Mr.
Florete this letter?
A My head teacher informed that they were
going to lay or buy a 10 inch pipe in the
canal which crosses the school that canal to
my office one morning Feb. 22. Industrial
Arts Teacher Mr. Rolando Demafiles and the
Head Teacher, Mr. Cesar Cruzada. They
were excited. There was already a 10 inch
rubber tube running from Iloilo River
crossing to the school to the bed of Mr.
Florete. That they intend to bury and so I
accompanied them to L. Borres Elementary
School and saw for myself that there really
was a 10 inch or 8 inch rubber pipe running
across the school and was about to be
buried.
Q Why? Can you explain what would be the
disadvantage if Mr. Florete bury those pipes
on the canal that traverses the school?
A The school maybe deprived of the water
for their fishpond, that is one and the
second, drainage canal which drains the
school in case of flood will not be working
anymore.
Q Now, in your letter, you mentioned here
and I read quote: Please sit down with us
with Mr. Borres because this lot of the
school still belongs to Mr. Borres and the
Division Office denies your right of way, my
question is what do you mean when you say
that the Division Office denied your right of
way?
A I meant they cannot bury a pipe depriving
the school of the water because the land
does not belong to us yet. In other words,
the land does not belong to L. Borres
Elementary School although it is supposed
to be donated by L. Borres
Q But when you wrote this letter Mrs.
Witness, did you really stop or prohibit Mr.
Florete from continuing the use of the canal?
A No sir. (TSN, Oct. 17, 1979, pp. 5-6)
Mrs. Javellana sent that letter-invitation when she came to
know that water pipes were about to be laid underground by
plaintiffs in lieu of the open canal. Plaintiff Florete Sr.,
however, did not come to the conference nor sent any word
or representative. Nor did he attend to all other subsequent
invitations related to the canal although he knew said
invitations or conference conducted by the government
offices concerned.
As heretofore stated, the main canal had long been in
existence even before plaintiff Marcelino Florete Sr. acquired
ownership of the fishpond of the Maranons thru which the
same passes. This canal served as passage of salt water
from Iloilo River to the school fishpond and at the same time,
as outlet and drainage canal or channel of rainwater from the
school premises and adjacent lands that empties to the Iloilo
River. An easement or servitude of water-right of way had
thus been constituted on the property of the plaintiffs as the
servient estate in favor of the L. Borres Elementary School
land and the nearby lands as the dominant estates.
Even on the assumption that it was plaintiff Florete Sr. who
constructed the subject canal in 1961, an easement or
servitude of water-right-of-way had nonetheless been
constituted on subject property because since then the same
had been in continuous use for no less than fifteen (15)
years by the school fishpond as well as by the adjacent
54
lands. A positive easement (Art 616, New Civil Code) had
thereby been created and plaintiffs have no right to terminate
it unilaterally without violating Art. 629 of the New Civil Code
which provides:
Art. 629: The owner of the servient estate cannot impair, in
any manner whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally assigned or
of the manner established for the use of the easement, the
same should become very inconvenient to the owner of the
servient estate, or should prevent him from making any
important works, repairs or improvements thereon, it may be
charged at his expense, provided he offers another place or
manner equally convenient and in such a way that no injury
is caused thereby to the owner of the dominant estate or to
those who may have a right to the use of the easement.
Plaintiffs, however, did not recognize, much less, follow the
above-quoted law on easement. They closed the entrance of
the canal and demolished portions of the main dike thus
impairing the use of the servitude by the dominant estate.
And by so doing, plaintiffs violated not only the law on
easement but also Presidential Degree No. 296 which
enjoins any person, natural or juridical, to demolish
structures or improvements which tend to obstruct the flow of
water through rivers, creeks, esteros and drainage channels.
For this canal did not serve merely to supply salt water to the
school fishpond but also serves as drainage charged or
channel of rainwater from adjacent lands to the Iloilo River.
Before the canal was closed, the residents had not
experienced any flood in the area or in the school premises.
It was only after the canal was closed by plaintiffs on July 25,
1978, that the residents began to experience flood in the
school premises particularly in the month of August every
year thereafter when rainy season comes. Rainwater from
adjoining areas accumulate at the school premises without
any chance of going out. Flood waters remain stagnant for
days and became filthy and veritable breeding place of
mosquitoes.
Plaintiffs claimed that they closed the canal because the
residents of the place threw waste matter and garbage into
the canal and so the waters therein were dirtied and
rendered totally unsanitary for human use, particularly for
salt-making. But this claim was belied by defendants'
showing that what motivated plaintiffs to close the canal was
the fact that the residents engaged in salt-making using
plastic bags and thus, somehow, competed with plaintiffs in
the production of salt in the area. At any rate, regardless of
what motivated plaintiffs into closing the canal, the fact is
that plaintiffs act ran roughshod over the aforequoted
provisions of law on easement and transgressed Presidential
Decree No. 296.
On the issue of damages, therefore, the court is of the view
and so holds that plaintiffs are liable to the defendants for
moral damages, attorney's fees and costs of litigation. It is
bad enough that plaintiffs, after closing the canal and thus
depriving the school fishpond and residents of the place salt
water from the Iloilo River and impeding the flow of rain and
flood waters from the school premises and adjacent lands to
said river during rainy season, unjustifiably refused and
failed to heed defendants' plea for them to reopen said
canal. Worse, plaintiffs instituted the present action against
the defendants and dragged the latter into a court suit that
occasioned upon them worries, serious anxiety, fright and
mental anguish. No doubt, the defendants were vexed to the
utmost to find themselves faced with a court suit when what
they did was only to do what was incumbent upon them to
do as public officials committed to serve public interest and
welfare. What is more, they were forced to secure the
service of a private counsel as they were sued also in their
private capacities.
It is quite evident that plaintiffs filed the present action in bad
faith to preempt whatever appropriate legal action the
authorities could take under the circumstances aware, as
they were, that no less than the offices of the City Fiscal of
Iloilo and the City Barangay Secretariat, after conducting
ocular inspection of the place together with other
government functionaries tasked with promoting the health,
safety and welfare of the people in the area, recommended
immediate appropriate action aimed at reopening the canal.
The damages that could be adjudged in this case are,
however, limited only to the herein defendants. It may be
55
 that the school fishpond was damaged and the school PTA
suffered actual damages in the form of lost income
therefrom. And so with the school children and residents of
the place reason for which defendants pray that they should
be compensated. But they are not parties to this case hence,
damages could not be awarded to them. (pp. 37-46, Rollo)
After a careful reading of the aforementioned findings of the trial court, there
is no question that the two subject canals had been in existence long before
plaintiff Florete bought his land from the Maranons. Respondent appellate
court cannot now disown it after quoting with approval in the body of its
decision the findings of the trial court. This brings Us to the determination of
the other issue namely: which of the two (2) estates is the dominant or
servient estate, an issue which hinges upon the conclusion reached by the
trial court that the canals were in existence long before Florete Sr. had
acquired that property from the Maranons. It has been established that the
main canal which is traversing the property of Florete served as the passage
of salt water from the Iloilo River to the school fishpond and at the same time,
as an outlet and drainage canal or channel of rainwater from the school
premises and adjacent lands that empty into the Iloilo River. Even assuming
that it was plaintiff Florete Sr. who constructed the subject canal in 1961, an
easement of water-right of way had already been constituted on the property
of the plaintiffs as the servient estate in favor of the L. Borres Elementary
School premises and the nearby lands as the dominant estates. Private
respondents thus violated Art. 629 of the Civil Code when they closed the
entrance of the canal and demolished portions of the main dike thus
impairing the use of the servitude by the dominant estates. The findings of
the trial court are amply supported by a careful and exhaustive consideration
of all available documentary and oral evidence including ocular inspections
as it was in the best position to do so. Its legal conclusions are likewise
unassailable. In view of the well-settled rule that this Court is not a trier of
facts, We find no plausible reason not to sustain the trial court in its findings
of fact and the legal conclusions drawn from these findings.
WHEREFORE, premises considered, the assailed decision of the respondent
appellate court is hereby REVERSED and SET ASIDE, and the judgment of
the Regional Trial Court in Civil Case No. 12791 is hereby REINSTATED.
SO ORDERED.
EDUARDO C. TAEDO, 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. Taedo. 1
Antonio Cardenas, on that same day, also mortgaged Lot 7501-B to said
Eduardo C. Taedo 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 Taedo 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 Taedo not to deduct the
56
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
Taedo offered to redeem the property from Romeo Sim. But the latter
refused. Instead, Romeo Sim blocked the sewage pipe connecting the
building of Eduardo Taedo built on Lot 7501-A, to the septic tank in Lot
7501-B. He also asked Taedo to remove that portion of his building
enroaching on Lot 7501-B. As a result, Eduardo Taedo, 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 Taedo 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 Taedo. 6
Antonio Cardenas, upon the other hand, admitted that he had agreed to sell
Lot 7501-B to Eduardo Taedo 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
Taedo 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 Taedo. 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 Taedo 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
57
 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 Taedo 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 Taedo 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 Taedo'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
58
 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
Taedo. 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.
UNISOURCE COMMERCIAL AND G.R. No. 173252
DEVELOPMENT CORPORATION,
Petitioner,
- versus -
JOSEPH CHUNG, KIAT CHUNG and KLETO Promulgated:
CHUNG,
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
QUISUMBING, J.:
The instant petition assails the Decision[1] dated October 27,
2005 and the Resolution[2] dated June 19, 2006 of the Court of Appeals in
CA-G.R. CV No. 76213. The appellate court had reversed and set aside the
Decision[3] dated August 19, 2002 of the Regional Trial Court of Manila,
Branch 49, in Civil Case No. 00-97526.
The antecedent facts are as follows:
Petitioner Unisource Commercial and Development Corporation is
the registered owner of a parcel of land covered by Transfer Certificate of
Title (TCT) No. 176253[4] of the Register of Deeds of Manila. The title
contains a memorandum of encumbrance of a voluntary easement which has
been carried over from the Original Certificate of Title of Encarnacion S.
Sandico. The certified English translation[5] of the annotation reads:
By order dated 08 October 1924 of the Court of First
Instance of Manila, Chamber IV (AP-7571/T-23046), it is
declared that Francisco Hidalgo y Magnifico has the right to
open doors in the course of his lot described as Lot No. 2,
Block 2650 of the map that has been exhibited, towards the
left of the Callejon that is used as a passage and that
appears as adjacent to the said Lot 2 and to pass through
the land of Encarnacion Sandico y Santana, until the bank of
the estero that goes to the Pasig River, and towards the right
of the other Callejon that is situated between the said Lot 2
and Lot 4 of the same Block N.[6]
As Sandicos property was transferred to several owners, the
memorandum of encumbrance of a voluntary easement in favor of Francisco M.
Hidalgo was consistently annotated at the back of every title covering Sandicos
property until TCT No. 176253 was issued in petitioners favor. On the other
hand, Hidalgos property was eventually transferred to respondents Joseph
Chung, Kiat Chung and Cleto Chung under TCT No. 121488.[7]
On May 26, 2000, petitioner filed a Petition to Cancel the
Encumbrance of Voluntary Easement of Right of Way[8] on the ground that
Present: the dominant estate has an adequate access to a public road which
is Matienza Street. The trial court dismissed the petition on the ground that it
QUISUMBING, J., Chairperson,
is a land registration case. Petitioner moved for
CARPIO MORALES, reconsideration. Thereafter, the trial court conducted an ocular inspection of
CHICO-NAZARIO,* the property. In an Order[9] dated November 24, 2000, the trial court granted
LEONARDO-DE CASTRO,** and the motion and made the following observations:
BRION, JJ. 1. The dominant estate is a property
enclosed with a concrete fence with no less
than three (3) doors in it, opening to an alley
belonging to the servient estate owned by
July 17, 2009 the petitioner. The alley is leading to
Matienza St.;
2. The dominant estate has a house built
thereon and said house has a very wide
door accessible to Matienza St. without any
obstruction. Said street is perpendicular
to J.P. Laurel St.
It is therefore found that the dominant estate has an
egress to Matienza St. and does not have to use the servient
estate.[10]
59
 In their Answer,[11] respondents countered that the extinguishment of in favor of the dominant estate, the same can be extinguished only by mutual
the easement will be of great prejudice to the locality and that petitioner is agreement or by renunciation of the owner of the dominant estate.
guilty of laches since it took petitioner 15 years from acquisition of the The decretal portion of the decision reads:
property to file the petition. WHEREFORE, the foregoing considered, the appeal
In a Decision dated August 19, 2002, the trial court ordered the is hereby GRANTED and the assailed decision
cancellation of the encumbrance of voluntary easement of right of way in is REVERSED and SET ASIDE. Accordingly, the petition to
favor of the dominant estate owned by respondents. It found that the cancel the encumbrance of right of way is dismissed for lack
dominant estate has no more use for the easement since it has another of merit.
adequate outlet to a public road which is Matienza Street. The dispositive No costs.
portion of the decision reads: SO ORDERED.[14]
IN VIEW OF ALL THE FOREGOING, the Court Before us, petitioner alleges that the Court of Appeals erred in:
hereby orders the cancellation of the Memorandum of I.
Encumbrance annotated in TCT No. 176253 which granted a BRUSHING ASIDE PETITIONERS CONTENTION THAT
right of way in favor of the person named therein and, upon THE EASEMENT IS PERSONAL SINCE THE
the finality of this decision, the Register of Deeds of the City ANNOTATION DID NOT PROVIDE THAT IT IS BINDING
of Manila is hereby directed to cancel said encumbrance. ON THE HEIRS OR ASSIGNS OF SANDICO.
II.
With respect to the other prayers in the petition, NOT CONSIDERING THAT THE EASEMENT IS
considering that the same are mere incidents to the exercise PERSONAL SINCE NO COMPENSATION WAS GIVEN TO
by the owners of right of their ownership which they could PETITIONER.
well do without the Courts intervention, this Court sees no III.
need to specifically rule thereon. The Court cannot award DISREGARDING THE CIVIL CODE PROVISION ON
plaintiffs claims for damages and attorneys fees for lack of UNJUST ENRICHMENT.
sufficient bases therefor. IV.
TREATING THE EASEMENT AS PREDIAL.[15]
SO ORDERED.[12] Petitioner contends that the fact that Sandico and Hidalgo resorted to
Respondents appealed to the Court of Appeals. On October 27, judicial intervention only shows that they contested the existence of the
2005, the appellate court reversed the decision of the trial court and requisite factors establishing a legal easement. Besides, the annotation itself
dismissed the petition to cancel the encumbrance of voluntary easement of provides that the easement is exclusively confined to the parties mentioned
right of way. therein, i.e., Sandico and Hidalgo. It was not meant to bind their heirs or
The appellate court ruled that when petitioners petition was initially assigns; otherwise, they would have expressly provided for it. Petitioner adds
dismissed by the executive judge, the copy of the petition and the summons that it would be an unjust enrichment on respondents part to continue
had not yet been served on respondents. Thus, when petitioner moved to enjoying the easement without adequate compensation to
reconsider the order of dismissal, there was no need for a notice of hearing petitioner. Petitioner also avers that to say that the easement has attached
and proof of service upon respondents since the trial court has not yet to Hidalgos property is erroneous since such property no longer exists after it
acquired jurisdiction over them. The trial court acquired jurisdiction over the has been subdivided and registered in respondents respective
case and over respondents only after the summons was served upon them names.[16] Petitioner further argues that even if it is bound by the easement,
and they were later given ample opportunity to present their evidence. the same can be cancelled or revoked since the dominant estate has an
The appellate court also held that the trial court erred in canceling adequate outlet without having to pass through the servient estate.
the encumbrance of voluntary easement of right of way. The appellate court Respondents adopted the disquisition of the appellate court as their
ruled that Article 631(3)[13] of the Civil Code, which was cited by the trial counter-arguments.
court, is inapplicable since the presence of an adequate outlet to a highway The petition lacks merit.
extinguishes only legal or compulsory easements but not voluntary As defined, an easement is a real right on anothers property,
easements like in the instant case. There having been an agreement corporeal and immovable, whereby the owner of the latter must refrain from
between the original parties for the provision of an easement of right of way doing or allowing somebody else to do or something to be done on his
60
property, for the benefit of another person or tenement. Easements are
established either by law or by the will of the owner. The former are called
legal, and the latter, voluntary easements.[17]
In this case, petitioner itself admitted that a voluntary easement of
right of way exists in favor of respondents. In its petition to cancel the
encumbrance of voluntary easement of right of way, petitioner alleged
that [t]he easement is personal. It was voluntarily constituted in favor of a
certain Francisco Hidalgo y Magnifico, the owner of [the lot] described as Lot
No. 2, Block 2650.[18] It further stated that the voluntary easement of the right
of way in favor of Francisco Hidalgo y Magnifico was constituted simply by
will or agreement of the parties. It was not a statutory easement and
definitely not an easement created by such court order because [the] Court
merely declares the existence of an easement created by the parties.[19] In its
Memorandum[20] dated September 27, 2001, before the trial court, petitioner
reiterated that [t]he annotation found at the back of the TCT of Unisource is a
voluntary easement.[21]
Having made such an admission, petitioner cannot now claim that
what exists is a legal easement and that the same should be cancelled since
the dominant estate is not an enclosed estate as it has an adequate access
to a public road which is Callejon Matienza Street.[22] As we have said, the
opening of an adequate outlet to a highway can extinguish only legal or
compulsory easements, not voluntary easements like in the case at bar. The
fact that an easement by grant may have also qualified as an easement of
necessity does not detract from its permanency as a property right, which
survives the termination of the necessity.[23] A voluntary easement of right of
way, like any other contract, could be extinguished only by mutual agreement
or by renunciation of the owner of the dominant estate.[24]
Neither can petitioner claim that the easement is personal only
to Hidalgo since the annotation merely mentioned Sandico
and Hidalgo without equally binding their heirs or assigns. That the heirs or
assigns of the parties were not mentioned in the annotation does not mean
that it is not binding on them. Again, a voluntary easement of right of way is
like any other contract. As such, it is generally effective between the parties,
their heirs and assigns, except in case where the rights and obligations
arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law.[25] Petitioner cites City of Manila v.
Entote[26] in justifying that the easement should bind only the parties
mentioned therein and exclude those not so mentioned. However, that case
is inapplicable since the issue therein was whether the easement was
intended not only for the benefit of the owners of the dominant estate but of
the community and the public at large.[27] In interpreting the easement, the
Court ruled that the clause any and all other persons whomsoever in the
easement embraces only those who are privy to the owners of the dominant
estate, Lots 1 and 2 Plan Pcs-2672 and excludes the indiscriminate public
from the enjoyment of the right-of-way easement.[28]
We also hold that although the easement does not appear in
respondents title over the dominant estate, the same subsists. It is settled
that the registration of the dominant estate under the Torrens system without
the annotation of the voluntary easement in its favor does not extinguish the
easement. On the contrary, it is the registration of the servient estate as free,
that is, without the annotation of the voluntary easement, which extinguishes
the easement.[29]
Finally, the mere fact that respondents subdivided the property does
not extinguish the easement. Article 618 [30] of the Civil Code provides that if
the dominant estate is divided between two or more persons, each of them
may use the easement in its entirety, without changing the place of its use, or
making it more burdensome in any other way.
WHEREFORE, the instant petition is DENIED. The Decision
dated October 27, 2005 and the Resolution dated June 19, 2006 of the Court
of Appeals in CA-G.R. CV No. 76213 are AFFIRMED.
SO ORDERED.
BRYAN U. VILLANUEVA, petitioner, vs. HON. TIRSO D.C. VELASCO in
his capacity as Presiding Judge of the Regional Trial Court of
Quezon City, Branch 88, JULIO N. SEBASTIAN and SHIRLEY
LORILLA, respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari assails (1) the decision[1] dated December 27,
1996 of the Court of Appeals in CA-G.R. SP No. 39166, dismissing
petitioners petition for review under Rule 65 with prayer for the issuance of a
cease and desist order and/or temporary restraining order, and (2) the
resolution[2]dated August 14, 1997 denying the subsequent motion for
reconsideration.
Petitioner Bryan Villanueva is the registered owner of the parcel of land
covered by Transfer Certificate of Title No. 127862 of the Register of Deeds
of Quezon City. He bought it from Pacific Banking Corporation, the
mortgagee of said property. The bank had acquired it from the spouses
Maximo and Justina Gabriel at a public auction on March 19, 1983. When
petitioner bought the parcel of land there was a small house on its
southeastern portion. It occupied one meter of the two-meter wide easement
of right of way the Gabriel spouses granted to the Espinolas, predecessors-
in-interest of private respondents, in a Contract of Easement of Right of
Way. The pertinent portion of the contract dated November 28, 1979, states:
61
. . . in order to have an access to and from their aforementioned land where
their houses are constructed and to have an outlet to Tandang Sora Ave.
which is the nearest public road and the least burdensome to the servient
estate and to third persons, it would be necessary for them to pass
through spouses MAXIMO GABRIEL and JUSTINA CAPUNOs land and for
this purpose, a path or passageway of not less than two (2) meters wide of
said spouses property is necessary for the use of ROMEO, RODOLFO,
NENITA and AURORA ESPINOLA and for all their needs in entering their
property.
WHEREFORE, in view of the fact that the property of the ESPINOLA had
been bought by them from MAXIMO CAPUNO, father of MAXIMO GABRIEL,
spouses MAXIMO GABRIEL and JUSTINA CAPUNO hereby agree and
permit RODOLFO, ROMEO, NENITA and AURORA ESPINOLA and their
families to have a permanent easement of right of way over the
aforementioned property of said spouses limited to not more than two meters
wide, throughout the whole length of the southeast side of said property and
as specifically indicated in the attached plan which is made an integral part of
this Contract as Annex A;
This Agreement shall be binding between the parties and upon their heirs,
successors, assigns, without prejudice in cases of sale of subject property
that will warrant the circumstances.[3]
Unknown to petitioner, even before he bought the land, the Gabriels had
constructed the aforementioned small house that encroached upon the two-
meter easement. Petitioner was also unaware that private respondents, Julio
Sebastian and Shirley Lorilla, had filed on May 8, 1991, Civil Case No. Q-91-
8703, for easement, damages and with prayer for a writ of preliminary
injunction and/or restraining order against the spouses Gabriel. [4] As
successors-in-interest, Sebastian and Lorilla wanted to enforce the contract
of easement.
On May 15, 1991, the trial court issued a temporary restraining
order. On August 13, 1991, it issued a writ of preliminary mandatory
injunction ordering the Gabriels to provide the right of way and to demolish
the small house encroaching on the easement. On August 15, 1991, the
Gabriels filed a motion for reconsideration which was also denied. Thus, they
filed a petition for certiorari before the Court of Appeals.
On March 26, 1992, the Eighth Division of the Court of Appeals
dismissed the petition and upheld the RTCs issuances. The decision became
final and executory on July 31, 1992.[5]
On January 5, 1995, Judge Tirso Velasco of the RTC in Quezon City,
Branch 88, issued an Alias Writ of Demolition. On June 20, 1995, the sheriff
tried to demolish the small house pursuant to the writ. Petitioner filed a Third
Party Claim with Prayer to Quash Alias Writ of Demolition. He maintains that
the writ of demolition could not apply to his property since he was not a party
to the civil case. His Third Party Claim with prayer to quash the writ of
demolition was denied for lack of merit on August 16, 1995.[6] The motion for
reconsideration as well as the Supplemental Motion for Reconsideration
dated September 12, 1995 were denied on October 19, 1995.[7]
Petitioner, thereafter, filed a petition for certiorari before the Court of
Appeals, docketed as CA-G.R. SP No. 39166, asserting that the existence of
the easement of right of way was not annotated in his title and that he was
not a party to Civil Case No. Q-91-8703, hence the contract of easement
executed by the Gabriels in favor of the Espinolas could not be enforced
against him. The Court of Appeals dismissed the petition for lack of merit and
denied the reconsideration, disposing thus:
WHEREFORE, the instant petition is hereby dismissed by this court for lack
of merit.
No costs considering the failure of private respondents to file their comment,
despite notice.[8]
Hence, this instant petition.
Petitioner now avers that the appellate court erred in declaring,
(1) THAT FOLLOWING THE ESSENCE OF INHERENCE AND
INTRANSMISSIBILITY OF AN EASEMENT, A RIGHT OF WAY CAN EXIST
EVEN IF THEY ARE NOT EXPRESSLY STATED OR ANNOTATED ON
THE TORRENS TITLE;
(2) THAT PETITIONER, AS PROSPECTIVE BUYER, SHOULD HAVE
EXERCISED ORDINARY PRUDENCE BY TAKING THE INITIATIVE TO
DETERMINE THAT AN EASEMENT HAS BEEN CONSTITUTED ON THE
PROPERTY HE INTENDS TO BUY; AND,
(3) THAT IN AS MUCH AS THE HEREIN PETITIONER IS NOT A PARTY
TO CIVIL CASE NO. Q-91-8703, HE CANNOT BE BOUND BY ANY
JUDGMENT OR ORDER RENDERED THEREIN.[9]
Primarily, the issue is whether the easement on the property binds
petitioner.
62
 Petitioner argues it could not be enforced against him. First, he says
that a right of way cannot exist when it is not expressly stated or annotated
on the Torrens title. According to him, even if an easement is inherent and
inseparable from the estate to which it actively belongs as provided in Art.
617 of the Civil Code,[10] the same is extinguished when the servient estate is
registered and the easement was not annotated in said title conformably with
Section 39 of the Land Registration Law. Second, petitioner points out that
the trial court erred when it faulted him for relying solely on the clean title of
the property he bought, as it is well-settled that a person dealing with
registered land is not required to go beyond what is recorded in the title. He
adds that it is private respondents who should have made sure their right of
way was safeguarded by having the same annotated on the title with the
Register of Deeds. He adds that Section 76 of P.D. No. 1529[11] also requires
that when a case is commenced involving any right to registered land under
the Land Registration Law (now the Property Registration Decree), any
decision on it will only be effectual between or among the parties thereto,
unless a notice of lis pendens of such action is filed and registered in the
registry office where the land is recorded. There was no such annotation in
the title of the disputed land, according to petitioner. Lastly, since he was not
a party to Civil Case No. Q-91-8703, petitioner argues that he cannot be
bound by the writ of demolition and be forcibly divested of a portion of his
land without having his day in court.
Private respondents Sebastian and Lorilla, for their part, adopted the
disquisition of the appellate court as their Comment and asked for the
dismissal of the petition and P100,000.00 in damages. In its decision the
appellate court, citing the decision of the lower court, stressed that unlike
other types of encumbrance of real property, a servitude like a right of way
can exist even if they are not expressly stated or annotated as an
encumbrance in a Torrens title because servitudes are inseparable from the
estates to which they actively or passively belong. Moreover, Villanueva was
bound by the contract of easement, not only as a voluntary easement but as
a legal easement. A legal easement is mandated by law, and continues to
exists unless its removal is provided for in a title of conveyance or the sign of
the easement is removed before the execution of the conveyance
conformably with Article 649[12]in accordance with Article 617[13] of the Civil
Code.
At the outset, we note that the subject easement (right of way) originally
was voluntarily constituted by agreement between the Gabriels and the
Espinolas. But as correctly observed by the Court of Appeals, the easement
in the instant petition is both (1) an easement by grant or a voluntary
easement, and (2) an easement by necessity or a legal easement. A legal
easement is one mandated by law, constituted for public use or for private
interest, and becomes a continuing property right.[14] As a compulsory
easement, it is inseparable from the estate to which it belongs, as provided
for in said Article 617 of the Civil Code. The essential requisites for an
easement to be compulsory are: (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; (4) the right of way claimed is at a 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.[15] The trial court and the Court of Appeals
have declared the existence of said easement (right of way). This finding of
fact of both courts below is conclusive on this Court,[16] hence we see no
need to further review, but only to re-affirm, this finding. The small house
occupying one meter of the two-meter wide easement obstructs the entry of
private respondents cement mixer and motor vehicle. One meter is
insufficient for the needs of private respondents. It is well-settled that the
needs of the dominant estate determine the width of the
easement.[17] Conformably then, petitioner ought to demolish whatever
edifice obstructs the easement in view of the needs of private respondents
estate.
Petitioners second proposition, that he is not bound by the contract of
easement because the same was not annotated in the title and that a notice
of lis pendens of the complaint to enforce the easement was not recorded
with the Register of Deeds, is obviously unmeritorious. As already explained,
it is in the nature of legal easement that the servient estate (of petitioner) is
legally bound to provide the dominant estate (of private respondents in this
case) ingress from and egress to the public highway.
Petitioners last argument that he was not a party to Civil Case No. Q-91-
8703 and that he had not been given his day in court, is also without
merit. Rule 39, Sec. 47, of the Revised Rules of Court:
SEC. 47. Effect of judgments or final orders. The effect of a judgment or final
order rendered by a court of the Philippines, having jurisdiction to pronounce
the judgment or final order, may be as follows:
(a) In case of a judgment or final order against a specific thing, or in respect
to the probate of a will, or the administration of the estate of a deceased
person, or in respect to the personal, political, or legal condition or status of a
particular person or his relationship to another, the judgment or final order is
conclusive upon the title to the thing, the will or administration, or the
condition, status or relationship of the person; however, the probate of a will
or granting of letters of administration shall only be prima facie evidence of
the death of the testator or intestate;
63
(b) In other cases, the judgment or final order is, with respect to the matter ADELAIDA CARREON,
directly adjudged or as to any other matter that could have been raised in Respondents. September 27, 2007
relation thereto, conclusive between the parties and their successors in
interest by title subsequent to the commencement of the action or x-----------------------------------------------------------------------------------------x
special proceeding, litigating for the same thing and under the same
title and in the same capacity; and

(c) In any other litigation between the same parties or their successors in DECISION
interest, that only is deemed to have been adjudged in a former judgment or
final order which appears upon its face to have been so adjudged, or which
was actually and necessarily included therein or necessary SANDOVAL-GUTIERREZ, J.:
thereto. (Emphasis ours).
Challenged in the instant Petition for Review on Certiorari[1] are the
Simply stated, a decision in a case is conclusive and binding upon the
Decision[2] of the Court of Appeals dated March 12, 2001 and its Resolution
parties to said case and those who are their successor in interest by title after
dated June 21, 2001 in CA-G.R. CV No. 60511.
said case has been commenced or filed in court.[18] In this case, private
respondents, Julio Sebastian and Shirley Lorilla, initiated Civil Case No. Q-
Spouses Amadeo and Adelaida Carreon, respondents, are the owners of a
91-8703 on May 8, 1991,[19] against the original owners, the spouses Maximo house and Lots Nos. 8-B and 8-C located in Cebu City
and Justina Gabriel. Title in the name of petitioner was entered in the covered by Transfer Certificates of Title (TCT) Nos. 61049 and 56745,
Register of Deeds[20] on March 24, 1995, after he bought the property from
respectively, of the Registry of Deeds, same city.
the bank which had acquired it from the Gabriels. Hence, the decision in Civil
Case No. Q-91-8703 binds petitioner. For, although not a party to the suit, he
On the other hand, Anita Linda Rodriguez is the owner of Lot No. 6213-A-2
is a successor-in-interest by title subsequent to the commencement of the
covered by TCT No. 93402. It is situated within the vicinity of respondent
action in court. spouses lots.
WHEREFORE, the instant petition is DENIED. The assailed decision
and resolution of the Court of Appeals are AFFIRMED. Costs against As there is no existing way from their property to the nearest road,
petitioner. respondents filed with the Regional Trial Court (RTC), Branch
22, Cebu City a complaint for easement of right of way against Rodriguez,
SO ORDERED. docketed as Civil Case No. CEB-7426. During the pre-trial, the RTC found
that there is another servient estate, owned by Mr. and Ms. Anselmo Jardin
which could be used by respondents as a right of way.Respondents then
LEO WINSTON BRIN LEE, G.R. No. 149023
filed a Motion for Leave to Admit Amended Complaint to include spouses
Petitioner,
Jardin as co-defendants, the latter being owners of Lots Nos. 6213-A-3,
6213-A-4 and 8-A located on the eastern side of respondents
Present:
property. On June 9, 1989, the RTC issued an Order admitting the Amended
Complaint.
PUNO, C.J., Chairperson,
SANDOVAL-GUTIERREZ,
However, the lots of spouses Jardin were sold pendente lite to Leo Winston
-versus- CORONA,
Brin Lee, petitioner. As a result, respondents filed a Motion for Leave to
AZCUNA, and
GARCIA, JJ. Admit Second Amended Complaint impleading petitioner as additional
defendant. On September 10, 1993, the RTC granted the motion.

After trial, the RTC rendered Judgment in favor of respondents and

SPOUSES AMADEO and Promulgated:
against petitioner, the dispositive portion of which reads:
64
 FOR ALL THE FOREGOING, judgment is hereby
rendered for the plaintiffs as follows:
1. Ordering defendant Mr. Leo Winston Brin Lee to
grant plaintiffs a right of way on the northern portion of his
properties as indicated in Exh.9-Lee measuring one-meter
wide and thirteen meters long;
2. Ordering Mr. Leo Winston Brin Lee to demolish
the fence/structure to the extent obstructing the right of way
hereinabove constituted;
3. Ordering plaintiffs to solidarily pay defendant Lee
the amount of THREE THOUSAND PESOS (P3,000.00) per
sq. m. or a total of THIRTY NINE THOUSAND PESOS
(P39,000.00) as payment of indemnity, on or before the
complete establishment thereof;
4. Further ordering plaintiffs to solidarily pay
defendant Lee the amount of TWENTY FIVE THOUSAND
PESOS (P25,000.00) as the value of the wall/fence to be
demolished likewise on or before the complete
establishment of the easement; and
5. All counterclaims are hereby dismissed for lack of
merit.
NO PRONOUNCEMENT AS TO COSTS.
SO ORDERED.
On appeal by petitioner, the Court of Appeals, in its assailed Decision,
affirmed the RTC Judgment, thus:
WHEREFORE, premises considered, the present
appeal is hereby DISMISSED, for lack of merit. The
appealed Decision dated June 24, 1997 of
the Regional Trial Court of Cebu City, Branch 22 in Civil
Case No. CEB-7426 is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
Petitioner filed a motion for reconsideration but it was denied by the appellate
court in its Resolution of June 21, 2001.
Hence, the present petition.
Petitioner contends that respondents have an existing right of way; and that
had the trial court considered certain testimonial evidence and respondents
admissions, its conclusion and that of the Court of Appeals would have been
different.
Respondents, on the other hand, pray that the petition be denied for lack of
merit.
The issue for our resolution is whether the Court of Appeals erred in ruling
that respondents are entitled to an easement of right of way on petitioners
property. This issue is both factual and legal in nature.
The conferment of a legal easement of right of way is governed by Articles
649 and 650 of the Civil Code reproduced as follows:
ART. 649. The owner, or any person who by virtue
of a real right may cultivate or use any immovable, which is
surrounded by other immovables pertaining to other persons
and without adequate outlet to a public highway, is entitled to
demand a right of way through the neighboring estates, after
payment of the proper indemnity.
Should this easement be established in such a
manner that its use may be continuous for all the needs of
the dominant estate, establishing a permanent passage, the
indemnity shall consist of the value of the land occupied and
the amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary
passage for the cultivation of the estate surrounded by
others and for the gathering of its crops through the servient
estate without a permanent way, the indemnity shall consist
in the payment of the damage caused by such
encumbrance.
This easement is not compulsory if the isolation of
the immovable is due to the proprietors own acts.
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
65
 distance from the dominant estate to a public highway may
be the shortest.
To be entitled to an easement of right of way, the following requisites should
be met:
1. the dominant estate is surrounded by other
immovables and has no adequate outlet to a public highway
(Art. 649, par. 1);
2. there is payment of proper indemnity (Art. 649,
par. 1);
3. the isolation is not due to the acts of the proprietor
of the dominant estate (Art. 649, last par.); and
4. 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).[3]
All the above requisites are present here.
As regards the first requisite, the parties agreed that respondents
property is surrounded by the estates of other persons, including that of
petitioner. The only dispute is whether respondents have an adequate outlet
to the nearest road. The Court of Appeals held:
Anent the third requisite, records show that the isolation of respondents
property is not due to their fault. Actually, it is surrounded by estates of other
persons, leaving respondents no adequate ingress or egress to a public
highway.
Going now to the fourth requisite that the right of way claimed is at
the point least prejudicial and shortest distance to the servient estate, the
Court of Appeals held: We find the same to be present in the case at
bar. Moreover, it should be emphasized that what respondent spouses asked
for was merely a one (1) meter wide pathway. The trial court found that this
easement will only affect a small portion of petitioners lot which has a total
area of 249 square meters.[5] Only his fence will be affected, the damage of
which respondent spouses are willing to pay.
Verily, we find no cogent reason to disturb the Decision of the Court
of Appeals affirming the Judgment of the trial court.
WHEREFORE, we DENY the petition. The challenged Decision and
Resolution of the Court of Appeals in CA-G.R. CV No. 60511
are AFFIRMED. Costs against petitioner.
SO ORDERED.

x x x What defendant-appellant insists is that

plaintiffs-appellees can use another outlet leading to the
nearest road by traversing several small lots and thereafter
use the northern portion of his property which he is willing to
be the subject of a right of way. The trial court found that
plaintiffs-appellees managed to reach the nearest road
through any passage available, passing through several lots
as they were unobstructed by any structure of fence.
However, as correctly ruled by the court a quo, this is not the
adequate outlet referred to by law. Plaintiffs-appellees have
every right in accordance with law to formally demand for an
adequate outlet sufficient for their needs. Moreover, the
alternative route referred to by defendant-appellant appears
to be merely a proposed outlet, not yet in existence. x x x

The second requisite is that payment of indemnity has been

complied with. Respondents have consistently maintained that they are
willing to pay the area affected at a reasonable price that may be fixed by the
Court.[4]

66