Cases on easementArt 613G.R. No. 152440 January 31, 2005FELICITACION B. BORBAJO,petitioner,vs.HIDDEN VIEW HOMEOWNERS, INC., SPS. MARCELINA A. SARCON, ELY D. SARCON, ROBERTO ALVAREZ, CORAZON NOMBRADO, and GILBERT ANDRALES, in their personal capacities,respondents.D E C I S I O NTINGA,J.:Before this Court is a Rule 45 petition assailing the Decision1dated 21 September 2001 of the Court of Appeals which reversed theDecision2dated 14 September 1999 of the Regional Trial Court (RTC) of Cebu City, Branch 58.The factual antecedents are as follows:Jose C. Bontuyan (Bontuyan), Lucy Solon, Georgina Solon, Helen Solon and Vicente Solon, Jr. (the Solons) were the registered owners of a parcel of agricultural land (Lot 10183-A), covering an area of 13,910 square meters situated at Barangay Bacayan, Cebu City as evidenced by Transfer Certificate of Title (TCT) No. 73709 of the Register of Deeds of Cebu City.3At the instance of Bontuyan, the property was surveyed on 19 May 1991 to convert it into a subdivision. On 6 June 1991, the corresponding subdivision plan, showing three (3) road lots as such, was submitted to the Cebu Office of the Department of Environment and Natural Resources (DENR). On 24 July 1991, the Regional Technical Director of the DENR, Lands Management Sector, Region Office VII, in Cebu, approved the subdivision plan.4Meanwhile, in his own behalf and as attorney-in-fact of the Solons and following the subdivision scheme in the plan, Bontuyan sold the resulting lots to different individuals,5as evidenced by theDeed of Absolute Sale6dated 18 June 1991.Among the lots sold are the ones which later became the subject of this case, the three (3) road lots. The road lots were sold to petitioner Felicitacion B. Borbajo, married to Danilo S. Borbajo, and Prescillana B. Bongo (Bongo), married to Patricio P. Bongo.7However, they obtained the titles to the lots more than a month later on 30 July 1991.8Using the advance payments of his lot purchasers, Bontuyan proceeded to develop a subdivision which was later namedHidden View Subdivision Iby its residents and homeowners.9Later, he applied for and secured from the Housing and Land Use Regulatory Board (HLURB) aLicense to Sell10dated 29 July 1991.Borbajo also decided to develop into a subdivision the other properties adjacent toHidden View SubdivisionIwhich she acquired. Thus, she applied for and received SSA 674-5-94 issued by the Cebu City Planning and Development Department, covering the parcel of land embraced by TCT No. 127642, to be subdivided into twenty-three (23) lots.11She named this new subdivisionST Ville Properties. On 29 July 1994, she secured Certificate of Registration No. 05005 for theST Ville Propertiesproject and aLicense to Sellthe same from the HLURB. She also secured a Certificate of Registration dated 18 August 1994 for another subdivision project calledHidden View Subdivision IIfrom the HLURB, with the corresponding License to Sell issued on 16 August 1994. The two new subdivision projects were located at the back ofHidden View SubdivisionI.The residents and homeowners ofHidden View SubdivisionIheard reports to the effect that Borbajo had purchased the entire subdivision from Bontuyan through an oral agreement. They also heard that they have no right to use the road lots, since the lots have already been registered in Borbajos name. As a consequence, the Hidden View Homeowners, Inc. invited Borbajo to a meeting. When confronted by the homeowners about her claim that she had bought the subdivision from Bontuyan, Borbajo confirmed her claim of ownership over the subdivision and the road lots. She also told them that they have "no right regarding the road right-of-way."12The incident prompted the homeowners ofHidden View Subdivision Ito inquire with the HLURB about the validity of the registration of the subdivision road lots in the name of Borbajo. They also asked whether she had the necessary documents for the development ofHidden View Subdivision IIandST Ville Properties. In a letter13dated 17 March 1997, HLURB Regional Officer Antonio Decatoria, Sr. replied that under the law the owner or developer of the subdivision should have legal title or right over the road lots of the subdivision and that if the title or right is in the name of other persons it follows that there is failure to comply with the requirements of the law. The HLURB Officer pointed out thatHidden View Subdivision IIandST Ville Propertieshad not filed an application for registration and license to sell with the HLURB.14On 10 August 1997, the homeowners caused the construction of a guardhouse at the entrance ofHidden View Subdivision Iand hired the services of a security guard to prevent unauthorized persons and construction vehicles from passing through their subdivision. The measures adversely affected the residents of the subdivisions at the back, as well as Borbajo herself since her delivery trucks and heavy equipment used in the construction of her housing projects then on-going had been effectively prevented from passing through the road lots.15On 28 August 1997, Borbajo filed before the RTC of Cebu City, Branch 58, an action for damages and injunction against Hidden View Homeowners, Inc., spouses Marcelina A. Sarcon and Ely D. Sarcon, Roberto Alvarez and Corazon Nombrado and Gilbert Andrales (respondents herein). Borbajo prayed for the issuance of a temporary restraining order (TRO) directing respondents to maintain thestatus quoand to desist from preventing her delivery trucks and other construction vehicles, and her construction workers, from passing through the road lots, and, after hearing on the merits, that judgment be rendered making the restraining order or preliminary injunction permanent and ordering the defendants to pay damages.16The trial court issued a TRO effective for seventy-two (72) hours. After due hearing, it also granted Borbajos application for a writ of preliminary injunction. It denied respondents motion to dismiss on the ground that it is the HLURB which has jurisdiction over the case.17After trial, the trial court rendered its decision dated 14 September 1999, the dispositive portion of which reads:"WHEREFORE, premises considered, judgment is hereby rendered enjoining the defendants to close [sic] the road lots in question, hence, making the injunction permanent, subject to the right of the defendants to regulate the passage thereof by the plaintiff and the general public; and directing the plaintiff to donate the road lots in question to the government of Cebu City. No pronouncement as to any damages and as to costs.SO ORDERED."18On appeal, the Court of Appeals reversed the lower court decision. The decretal portion of the appellate courts decision dated 21 September 2001 reads:WHEREFORE, premises considered, the present appeal is hereby GRANTED. The appealed Decision in Civil Case No. CEB-20796 is hereby REVERSED and SET ASIDE and a new one is hereby rendered DISMISSING the complaint. The counterclaim of defendants-appellants is likewise dismissed for lack of legal and factual bases.No pronouncement as to costs.SO ORDERED."19Undaunted, Borbajo elevated the case to this Court.In her petition, Borbajo imputes error to the appellate court (a) in reversing the decision of the trial court which declared her to be the developer of Hidden View Subdivision I, (b) in finding that she had fraudulently secured the registration of the three (3) road lots, and (c) in declaring that she is not entitled to the injunctive relief.20Borbajo contends that the appellate court erred in reversing the finding of the RTC that she is the developer ofHidden View Subdivision I. According to her, and as borne out by her testimony before the RTC, she was the true developer ofHidden View Subdivision Ieven though the License to Sell was issued in the name of Bontuyan. The appellate court allegedly violated prevailing jurisprudence when it held that she fraudulently secured the registration of the three (3) road lots since a certificate of title cannot be collaterally attacked except in direct proceedings instituted for that purpose. In fact, Hidden View Homeowners, Inc. has filed a separate case for annulment of title against Borbajo which is now pending before Branch 9 of the RTC of Cebu City. Further, she claims that she is entitled to the injunctive relief considering that she is the registered owner of these road lots in question and, hence, she has a right inessewhich deserves legal protection.21On the other hand, respondents argue that the sale of the road lots made by Bontuyan in favor of Borbajo was illegal and contrary to the provisions of Presidential Decree (P.D.) No. 957 which requires that the road lots in a subdivision development shall be in the name of the developer or owner, of which Borbajo is neither.22They aver that Borbajo fraudulently obtained her titles to the road lots through a falsified deed of sale which was the document presented to the Office of the Register of Deeds.23They also point out that the use by Borbajo of the road lots for the ingress and egress of heavy equipment has continuously resulted in the rapid deterioration of the roads. Moreover, the road lots are not the nearest point between the development project of Borbajo and the provincial road.24Finally, they assert that they are merely exercising acts of ownership which include the right to prevent others from enjoying the thing owned by them. Respondents oppose the issuance of a preliminary injunction because notwithstanding the registration of the subject road in Borbajos name, her title thereto is tainted by the discovery of fraud she allegedly perpetrated in securing the questioned titles.25The result which Borbajo seeks to achieve which is to reinstate the preliminary injunction issued by the lower court has to be granted, but not for the reasons which she has raised nor for the grounds which the lower court relied upon.The ultimate question for resolution is whether respondents may legally prevent Borbajo from using and passing through the three (3) road lots withinHidden View Subdivision I. It is worthy of note that the right of respondents to use the road lots themselves is not in dispute.In resolving the controversy, the lower court addressed only the issue of whether respondents have the right to close the road lots, and the question of damages.26It concluded that respondents cannot legally close the road lots because these are intended for public use. It opted not to resolve the question pertaining to the validity of Borbajos acquisition of the road lots and her title thereto on the ground that a Torrens title cannot be collaterally attacked.27For its part, the Court of Appeals addressed the trial courts errors assigned by the respondents herein. The trial court allegedly erred in: (a) finding that Borbajo was the developer ofHidden View Subdivision I; (b) finding that the manner by which Borbajo acquired the road lots is irrelevant to the resolution of the issues in this case; (c) finding that the road lots are open to the public and the only right of the residents therein is to regulate its use; (d) not finding that the elements of an easement of a right-of-way are not present; (e) finding that the injunction was properly issued and the court ordered Borbajo to donate the road lots in favor of the local government unit; and (f) failing to award damages to the respondents.28The appellate court found that the injunctive writ was erroneously issued as the same was not based on an actual right sought to be protected by law. The fact that Borbajo was the developer ofHidden View Subdivision Iwas not clearly established by evidence. Although Borbajo has claimed that she was the developer of the subdivision and that Bontuyans name was indicated in the License to Sell, such claim carried scant weight in the absence of a certificate of registration of the subdivision project issued in her name by the HLURB and other documents which prove that she was indeed the developer.29Further, the appellate court ruled that the fact of registration of the road lots in Borbajos name was insufficient to defeat the right of the homeowners of the subdivision and preclude them from regulating their use and administration thereof in accordance with existing laws and regulations.30It likewise held that Borbajo had not complied with the requisites of a compulsory easement of right-of-way and pointed out the general rule that mere convenience for the dominant estate is not what is required by law as the basis for setting up a compulsory easement.31Hence, this instant judicial recourse.Noticeably, the appellate court dwelt at length on the question of whether Borbajo was the developer of theHidden View Subdivision Ias she claimed. Apparently, Borbajo submitted this point, with her focus set on the provisions of P.D. No. 957, as amended, ordaining that road lots may be titled only in the name of the owner of the subdivision or its developer. In the process, however, the Court of Appeals lost sight of the settled and decisive fact that Borbajo is one of the registered co-owners of the road lots along with Bongo. The evidence reveals that Borbajo and Bongo were issued TCTs, all dated 30 July 1991, for the three (3) road lots situated within theHidden View Subdivision I. These titles were issued pursuant to theDeed of Absolute Saledated 18 June 1991 which also mentioned the road lots as such.As a registered co-owner of the road lots, Borbajo is entitled to avail of all the attributes of ownership under the Civil Codejus utendi, fruendi, abutendi, disponendi et vindicandi.32Article 428 of the New Civil Code is explicit that the owner has the right to enjoy and dispose of a thing, without other limitations than those established by law. A co-owner, such as Borbajo, is entitled to use the property owned in common under Article 486 of the Civil Code. Therefore, respondents cannot close the road lots to prevent Borbajo from using the same.The Court of Appeals ruled that the road lots cannot be sold to any person pursuant to P.D. No. 957, as amended. It also pointed out that fraud is manifest in the acquisition of titles thereto. However, it is a settled rule that a Torrens title cannot be collaterally attacked.It is a well-known doctrine that the issue as to whether title was procured by falsification or fraud can only be raised in an action expressly instituted for the purpose. A Torrens title can be attacked only for fraud, within one year after the date of the issuance of the decree of registration. Such attack must be direct, and not by a collateral proceeding. The title represented by the certificate cannot be changed, altered, modified, enlarged, or diminished in a collateral proceeding.33The certificate of title serves as evidence of an indefeasible title to the property in favor of the person whose name appears therein.34However, in upholding the efficiency value of the disputed titles for purposes of the present petition, we are not foreclosing any future determination by appropriate forum on the legality of Borbajos titles over the road lots. Verily, a separate case for annulment of titles over the road lots is now pending before the court. There are serious allegations that the issuance of the TCTs over the road lots was tainted with fraud as evidenced by alterations made on the face of the certificates and discrepancies in the records of the contract of absolute sale filed before the Office of the Register of Deeds and the Notarial Division of the RTC of Cebu City.35If the court finds that the titles of Borbajo were obtained fraudulently, her right to the road lots ceases as well as her right-of-way by virtue of said titles.In the meantime, however, we are bound by the value in law and the evidentiary weight of the titles in the name of Borbajo. As long as the titles are not annulled, Borbajo remains registered a co-owner and therefore her right to use the road lots subsists.Likewise, with Borbajo as a registered co-owner of the road lots, it is utterly pointless to discuss whether she is entitled to the easement of right of way. Both from the text of Article 64936of the Civil Code and the perspective of elementary common sense, the dominant estate cannot be the servient estate at the same time. One of the characteristics of an easement is that it can be imposed only on the property of another, never on ones own property. An easement can exist only when the servient and the dominant estates belong to different owners.37Borbajo, being a registered co-owner of the three (3) road lots, is entitled to the injunctive relief.The requisites to justify an injunctive relief are: (a) the existence of a rightin esseor the existence of a right to be protected; and (b) the act against which injunction is to be directed as a violation of such right.38A preliminary injunction order may be granted only when the application for the issuance of the same shows facts entitling the applicant to the relief demanded.39A preliminary injunction is not proper when its purpose is to take the property out of the possession or control of one party and transfer the same to the hands of another who did not have such control at the inception of the case and whose legal title has not clearly been established.40One final note. Respondents in theirAnswer41neither claimed nor asked for the right to regulate the use of the road lots or that the road lots be donated to the Cebu City Government. Thus, there was utterly no basis for the trial court to include as it did its disposition along these lines in the decretal portion of its decision.WHEREFORE, theDecisionof the Court of Appeals dated 21 September 2001 is REVERSED and SET ASIDE and the writ of preliminary injunction issued by the Regional Trial Court of Cebu City, Branch 58, is made permanent, subject to the final outcome of Civil Case No. 21239 pending before the Regional Trial Court of Cebu City, Branch 9.No costs.SO ORDERED.Article 617G.R. No. 90596 April 8, 1991SOLID MANILA CORPORATION,petitioner,vs.BIO HONG TRADING CO., INC. and COURT OF APPEALS,respondents.Balgos & Perez for petitioner.Alfredo G. de Guzman for private respondent.SARMIENTO,J.:pThis is an appeal filed by way of a petition for review oncertiorariunder Rule 45 of the Rules of Court.The petitioner raises two questions: (1) whether or not the Court of Appeals1erred in reversing the trial court which had rendered summary judgment; and (2) whether or not it erred in holding that an easement had been extinguished by merger.We rule for the petitioner on both counts.It appears that the petitioner is the owner of a parcel of land located in Ermita, Manila, covered by Transfer Certificate of Title No. 157750 of the Register of Deeds of Manila. The same lies in the vicinity of another parcel, registered in the name of the private respondent corporation under Transfer Certificate of Title No. 128784.The private respondent's title came from a prior owner, and in their deed of sale, the parties thereto reserved as an easement of way:. . .a portion thereof measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been converted into a private alley for the benefit of neighboring estates, this being duly annotated 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).2As a consequence, an annotation was entered in the private respondent's title, as follows:Entry No. 7712/T-5000 CONSTRUCTION OF PRIVATE ALLEY 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.3The 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 courta quoshortly issuedex partean 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 of the case upon its merits upon the posting of a P5,000.00 bond by the 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 courta quoruled 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).5On 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).6The 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 of7the private respondent's own appeal (subject of this petition).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. . ."8Its 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 sameThere 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.9Servitudes are merely accessories to the tenements of which they form part.10Although they are possessed of a separate juridical existence, as mere accessories, they can not, however, be alienated11from the tenement, or mortgaged separately.12The 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. . ."13and 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)14Hence, 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 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.15Merger 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.16In 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,17in 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.18In 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.20We 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-sevenyears.21We 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.22In 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,23the 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, entitledSolid 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 xxxLaw 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, 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.)24CA-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 xxxThere is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal orcertiorari) 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.25to which contempt is a penalty.26As 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 ofNorth Negros Sugar Co.,Inc.v.Hidalgo,27this 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"28of the landowner, and is not "contractual in the nature,"29and 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 . . . "30and "[t]here being no offer, there could be no acceptance; hence no contract."31The 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 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.G.R. No. 173252 July 17, 2009UNISOURCE COMMERCIAL AND DEVELOPMENT CORPORATION,Petitioner,vs.JOSEPH CHUNG, KIAT CHUNG and KLETO CHUNG,Respondents.D E C I S I O NQUISUMBING,J.:The instant petition assails the Decision1dated October 27, 2005 and the Resolution2dated June 19, 2006 of the Court of Appeals in CA-G.R. CV No. 76213. The appellate court had reversed and set aside the Decision3dated 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. 1762534of 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 translation5of 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.6As 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. 121488.7On May 26, 2000, petitioner filed a Petition to Cancel the Encumbrance of Voluntary Easement of Right of Way8on the ground that 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 is a land registration case. Petitioner moved for reconsideration. Thereafter, the trial court conducted an ocular inspection of the property. In an Order9dated November 24, 2000, the trial court granted the motion and made the following observations: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 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.10In their Answer,11respondents countered that the extinguishment of the easement will be of great prejudice to the locality and that petitioner is guilty of laches since it took petitioner 15 years from acquisition of the property to file the petition.In a Decision dated August 19, 2002, the trial court ordered the cancellation of the encumbrance of voluntary easement of right of way in favor of the dominant estate owned by respondents. It found that the dominant estate has no more use for the easement since it has another adequate outlet to a public road which is Matienza Street. The dispositive portion of the decision reads:IN VIEW OF ALL THE FOREGOING, the Court hereby orders the cancellation of the Memorandum of Encumbrance annotated in TCT No. 176253 which granted a right of way in favor of the person named therein and, upon the finality of this decision, the Register of Deeds of the City of Manila is hereby directed to cancel said encumbrance.With respect to the other prayers in the petition, considering that the same are mere incidents to the exercise by the owners of right of their ownership which they could well do without the Courts intervention, this Court sees no need to specifically rule thereon. The Court cannot award plaintiffs claims for damages and attorneys fees for lack of sufficient bases therefor.SO ORDERED.12Respondents appealed to the Court of Appeals. On October 27, 2005, the appellate court reversed the decision of the trial court and dismissed the petition to cancel the encumbrance of voluntary easement of right of way.The appellate court ruled that when petitioners petition was initially dismissed by the executive judge, the copy of the petition and the summons had not yet been served on respondents. Thus, when petitioner moved to reconsider the order of dismissal, there was no need for a notice of hearing and proof of service upon respondents since the trial court has not yet acquired jurisdiction over them. The trial court acquired jurisdiction over the case and over respondents only after the summons was served upon them and they were later given ample opportunity to present their evidence.The appellate court also held that the trial court erred in canceling the encumbrance of voluntary easement of right of way. The appellate court ruled that Article 631(3)13of the Civil Code, which was cited by the trial court, is inapplicable since the presence of an adequate outlet to a highway extinguishes only legal or compulsory easements but not voluntary easements like in the instant case. There having been an agreement between the original parties for the provision of an easement of right of way in favor of the dominant estate, the same can be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate.The decretal portion of the decision reads:WHEREFORE, the foregoing considered, the appeal is hereby GRANTED and the assailed decision is REVERSED and SET ASIDE. Accordingly, the petition to cancel the encumbrance of right of way is dismissed for lack of merit.No costs.SO ORDERED.14Before us, petitioner alleges that the Court of Appeals erred in:I. BRUSHING ASIDE PETITIONERS CONTENTION THAT THE EASEMENT IS PERSONAL SINCE THE ANNOTATION DID NOT PROVIDE THAT IT IS BINDING ON THE HEIRS OR ASSIGNS OF SANDICO.II. NOT CONSIDERING THAT THE EASEMENT IS PERSONAL SINCE NO COMPENSATION WAS GIVEN TO PETITIONER.III. DISREGARDING THE CIVIL CODE PROVISION ON UNJUST ENRICHMENT.IV. TREATING THE EASEMENT AS PREDIAL.15Petitioner contends that the fact that Sandico and Hidalgo resorted to judicial intervention only shows that they contested the existence of the requisite factors establishing a legal easement. Besides, the annotation itself provides that the easement is exclusively confined to the parties mentioned therein, i.e., Sandico and Hidalgo. It was not meant to bind their heirs or assigns; otherwise, they would have expressly provided for it. Petitioner adds that it would be an unjust enrichment on respondents part to continue enjoying the easement without adequate compensation to petitioner. Petitioner also avers that to say that the easement has attached to Hidalgos property is erroneous since such property no longer exists after it has been subdivided and registered in respondents respective names.16Petitioner further argues that even if it is bound by the easement, the same can be cancelled or revoked since the dominant estate has an adequate outlet without having to pass through the servient estate.Respondents adopted the disquisition of the appellate court as their counter-arguments.The petition lacks merit.As defined, an easement is a real right on anothers property, corporeal and immovable, whereby the owner of the latter must refrain from doing or allowing somebody else to do or something to be done on his 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.17In this case, petitioner itself admitted that a voluntary easement of right of way exists in favor of respondents.1avvphi1In 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."18It 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."19In its Memorandum20dated 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."21Having 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.22As 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.23A 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.241avvphi1Neither 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.25Petitioner cites City of Manila v. Entote26in 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.27In 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."28We 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.29Finally, the mere fact that respondents subdivided the property does not extinguish the easement. Article 61830of 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.

Article 619G.R. No. 137882 February 04, 2005SPS. ELIZABETH DE LA CRUZ and ALFREDO DE LA CRUZ,petitioners,vs.OLGA RAMISCAL represented by ENRIQUE MENDOZA,Respondent.D E C I S I O NCHICO-NAZARIO,J.:This petition for review assails (1) the Resolution1dated 11 September 1998 of the Court of Appeals which dismissed the appeal filed by petitioners from the Decision dated 31 July 1997 of the Regional Trial Court (RTC), Branch 91, Quezon City, for Demolition of Illegally Constructed Structure, and (2) the Resolution2dated 05 March 1999 denying the subsequent motion for reconsideration.The following facts, as recapitulated by the trial court, are undisputed.Respondent Olga Ramiscal is the registered owner of a parcel of land located at the corner of 18th Avenue and Boni Serrano Avenue, Murphy, Quezon City, covered by Transfer Certificate of Title (TCT) No. 300302 of the Register of Deeds for Quezon City.3Petitioners SPS. ELIZABETH and ALFREDO DE LA CRUZ are occupants of a parcel of land, with an area of eighty-five (85) square meters, located at the back of Ramiscals property, and covered by TCT No. RT-56958 (100547) in the name of Concepcion de la Pea, mother of petitioner Alfredo de la Cruz.4The subject matter of this case is a 1.10-meter wide by 12.60-meter long strip of land owned by respondent which is being used by petitioners as their pathway to and from 18th Avenue, the nearest public highway from their property. Petitioners had enclosed the same with a gate, fence, and roof.5In 1976, respondent leased her property, including the building thereon, to Phil. Orient Motors. Phil. Orient Motors also owned a property adjacent to that of respondents. In 1995, Phil. Orient Motors sold its property to San Benito Realty. After the sale, Engr. Rafael Madrid prepared a relocation survey and location plan for both contiguous properties of respondent and San Benito Realty. It was only then that respondent discovered that the aforementioned pathway being occupied by petitioners is part of her property.6Through her lawyer, respondent immediately demanded that petitioners demolish the structure constructed by them on said pathway without her knowledge and consent. As her letter dated 18 February 1995 addressed to petitioners went unheeded, the former referred the matter to theBarangayfor conciliation proceedings, but the parties arrived at no settlement. Hence, respondent filed this complaint with the RTC in Civil Case No. Q-95-25159, seeking the demolition of the structure allegedly illegally constructed by petitioners on her property. Respondent asserted in her complaint that petitioners have an existing right of way to a public highway other than the current one they are using, which she owns. She prayed for the payment of damages.7In support of the complaint, respondent presented TCT No. RT-56958 (100547) covering the property denominated as Lot 1-B in the name of Concepcion de la Pea, mother of petitioner herein Alfredo de la Cruz. The aforesaid TCT reveals that a portion of Lot 1-B, consisting of 85 square meters and denominated as Lot 1-B-2, is being occupied by petitioners. To prove that petitioners have an existing right of way to a public highway other than the pathway which respondent owns, the latter adduced in evidence a copy of the plan of a subdivision survey for Concepcion de la Pea and Felicidad Manalo prepared in 1965 and subdivision plan for Concepcion de la Pea prepared in 1990. These documents establish an existing 1.50-meter wide alley, identified as Lot 1-B-1, on the lot of Concepcion de la Pea, which serves as passageway from the lot being occupied by petitioners (Lot 1-B-2), to Boni Serrano Avenue.8On the other hand, petitioners, in their Answer, admitted having used a 1.10-meter wide by 12.60-meter long strip of land on the northern side of respondents property as their pathway to and from 18th Avenue, the nearest public highway from their property, but claimed that such use was with the knowledge of respondent.9Petitioners alleged in their Answer that in 1976, respondent initiated the construction on her property of a motor shop known as Phil. Orient Motors and they, as well as the other occupants of the property at the back of respondents land, opposed the construction of the perimeter wall as it would enclose and render their property without any adequate ingress and egress. They asked respondent to give them a 1.50-meter wide and 40.15-meter long easement on the eastern side of her property, which would be reciprocated with an equivalent 1.50-meter wide easement by the owner of another adjacent estate. Respondent did not want to give them the easement on the eastern side of her property, towards Boni Serrano Avenue but, instead, offered to them the said 1.10-meter wide passageway along the northern side of her property towards 18th Avenue, which offer they had accepted.10Petitioners additionally averred in their Answer that they were made to sign a document stating that they waived their right to ask for an easement along the eastern side of respondents property towards Boni Serrano Avenue, which document was among those submitted in the application for a building permit by a certain "Mang Puling,"11the person in charge of the construction of the motor shop. That was why, according to petitioners, the perimeter wall on respondents property was constructed at a distance of 1.10-meters offset and away from respondents property line to provide a passageway for them to and from 18th Avenue. They maintained in their Answer that respondent knew all along of the 1.10-meter pathway and had, in fact, tolerated their use thereof.On 31 July 1997, the RTC handed down a decision,12giving probative weight to the evidence adduced by respondent. The decretal portion enunciates:Plaintiffs claim for moral damages must be denied as no evidence in support thereof was presented at all by her. Consequently, plaintiff is not entitled to exemplary damages.13However, for having been compelled to file this suit and incur expenses to protect her interest, plaintiff is entitled to an attorneys fees in the amount of P10,000.00.WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and ordering the defendants to demolish the structure built by them along the pathway on the eastern side of plaintiffs property towards 18th Avenue, Murphy, Quezon City and to pay [the] plaintiff the amount of P10,000.00 as and by way of attorneys fees.Costs against the defendants.14The Court of Appeals dismissed the appeal filed by petitioners from the RTC decision for failure to file brief within the reglementary period. Thefalloof the Court of Appeals decision, provides:WHEREFORE, for failure of the defendants-appellants to file brief within the reglementary period, the instant appeal is hereby DISMISSED pursuant to Section 1(e), Rule 50 of the 1997 Rules of Civil Procedure.The Compliance/Explanation filed by defendants-appellants, submitting the Letter-withdrawal of Atty. Judito Tadeo addressed to the said defendants-appellants is NOTED.Let a copy of this Resolution be likewise served on defendants-appellants themselves.15The motion for reconsideration filed by petitioners met the same fate in the Resolution of the Court of Appeals dated 05 March 1999.Petitioners now lay their cause before us through the present petition for review, raising the following issues:A. WHETHER OR NOT THE DENIAL OF THE COURT OF APPEALS OF THE PETITIONERS MOTION FOR RECONSIDERATION OF ITS RESOLUTION DATED SEPTEMBER 11, 1998 IS SANCTIONED BY THE RULINGS AND LEGAL PRONOUNCEMENTS OF THE HONORABLE SUPREME COURT?B. WHETHER OR NOT THE PETITIONERS ARE NONETHELESS ENTITLED TO A LEGAL EASEMENT OF RIGHT OF WAY, ASSUMING NO VOLUNTARY RIGHT OF WAY WAS GRANTED THEM BY THE RESPONDENT?C. WHETHER OR NOT OPERATIVE EQUITABLE PRINCIPLE OF LACHES TO BAR THE RESPONDENT FROM DEPRIVING THE PETITIONERS CONTINUED USE OF THE SAID RIGHT OF WAY?16The issues rivet on the adjective as well as on the substantive law, specifically: (1) whether or not the Court Appeals erred in dismissing the appeal filed by petitioners for failure to file appellants brief on time, (2) whether or not petitioners are entitled to a voluntary or legal easement of right of way, and (3) whether or not respondent is barred by laches from closing the right of way being used by petitioners.On the first issue, petitioners assert positively that the petition was filed on time on 30 April 1998, which is well within the 45-day period reckoned from 17 March 1998, when the secretary of their former counsel received the notice to file appeal.Petitioners arguments fail to persuade us.Press earnestly as they would, the evidence on record, nevertheless, evinces contrariety to petitioners assertion that they have beat the 45-day period to file appellants brief before the appellate court. It is clear from the registry return receipt card17that the Notice to File Brief was received on 12 March 1998 by one May Tadeo from the Office of Atty. Judito Angelo C. Tadeo, petitioners previous counsel. Thus, on 30 April 1998, when their new counsel entered his appearance and at the same time filed an appellants brief, the 45 days have run out. For failure of petitioners to file brief within the reglementary period, the Court of Appeals correctly dismissed said appeal pursuant to Section 1(b), Rule 50 of the 1997 Rules of Civil Procedure.18Neither can the members of this Court lend credence to petitioners contention that the written note of Atty. Tadeos office on the face of the Order reads that the said office received it on 17 March 1998.19It is a rule generally accepted that when the service is to be made by registered mail, the service is deemed complete and effective upon actual receipt by the addressee as shown by the registry return card.20Thus, between the registry return card and said written note, the former commands more weight. Not only is the former considered as the official record of the court, but also as such, it is presumed to be accurate unless proven otherwise, unlike a written note or record of a party, which is often self-serving and easily fabricated. Further, this error on the part of the secretary of the petitioners former counsel amounts to negligence or incompetence in record-keeping, which is not an excuse for the delay of filing.Petitioners justification that their former counsel belatedly transmitted said order to them only on 20 March 1998 is not a good reason for departing from the established rule. It was the responsibility of petitioners and their counsel to devise a system for the receipt of mail intended for them.21Rules on procedure cannot be made to depend on the singular convenience of a party.Petitioners next take the stand that even assuming the brief was filed late, the Court of Appeals still erred in dismissing their petition in light of the rulings of this Court allowing delayed appeals on equitable grounds.22Indeed, in certain special cases and for compelling causes, the Court has disregarded similar technical flaws so as to correct an obvious injustice made.23In this case, petitioners, however, failed to demonstrate any justifiable reasons or meritorious grounds for a liberal application of the rules. We must remind petitioners that the right to appeal is not a constitutional, natural or inherent right - it is a statutory privilege and of statutory origin and, therefore, available only if granted or provided by statute.24Thus, it may be exercisedonly in the manner prescribed by, and in accordance with, the provisions of the law.25Anent the second issue, an easement or servitude is a real right, constituted on the corporeal immovable property of another, by virtue of which the owner has to refrain from doing, or must allow someone to do, something on his property, for the benefit of another thing or person.26The statutory basis for this right is Article 613, in connection with Article 619, of the Civil Code, which states:Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner.The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate.Art. 619. Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements.Did respondent voluntarily accord petitioners a right of way?We rule in the negative. Petitioners herein failed to show by competent evidence other than their bare claim that they and their tenants, spouses Manuel and Cecilia Bondoc and Carmelino Masangkay, entered into an agreement with respondent, through her foreman, Mang Puling, to use the pathway to 18th Avenue, which would be reciprocated with an equivalent 1.50-meter wide easement by the owner of another adjacent estate. The hands of this Court are tied from giving credence to petitioners self-serving claim that such right of way was voluntarily given them by respondent for the following reasons:First, petitioners were unable to produce any shred of document evidencing such agreement. The Civil Code is clear that any transaction involving the sale or disposition of real property must be in writing.27Thus, the dearth of corroborative evidence opens doubts on the veracity of the naked assertion of petitioners that indeed the subject easement of right of way was a voluntary grant from respondent.Second, as admitted by the petitioners, it was only the foreman, Mang Puling, who talked with them regarding said pathway on the northern side of respondents property. Thus, petitioner Elizabeth de la Cruz testified that she did not talk to respondent regarding the arrangement proposed to them by Mang Puling despite the fact that she often saw respondent.28It is, therefore, foolhardy for petitioners to believe that the alleged foreman of respondent had the authority to bind the respondent relating to the easement of right of way.Third, their explanation that said Mang Puling submitted said agreement to the Quezon City Engineers Office, in connection with the application for a building permit but said office could no longer produce a copy thereof, does not inspire belief. As correctly pointed out by the trial court,29petitioners should have requested a subpoenaduces tecumfrom said court to compel the Quezon City Engineers Office to produce said document or to prove that such document is indeed not available.The fact that the perimeter wall of the building on respondents property was constructed at a distance of 1.10 meters away from the property line, does not by itself bolster the veracity of petitioners story that there was indeed such an agreement. Further, as noted by the trial court, it was Atty. Federico R. Onandia, counsel of Phil. Orient Motors, who wrote petitioners on 25 August 1994 advising them that his client would close the pathway along 18th Avenue, thereby implying that it was Phil. Orient Motors, respondents lessee, which tolerated petitioners use of said pathway.30Likewise futile are petitioners attempts to show that they are legally entitled to the aforesaid pathway under Article 649 of the Civil Code, to wit:Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons, and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity.The conferment of a legal easement of right of way under Article 649 is subject to proof of the following requisites: (1) it is surrounded by other immovables and has no adequate outlet to a public highway; (2) payment of proper indemnity; (3) the isolation is not the result of its own acts; (4) the right of way claimed is at the point least prejudicial to the servient estate; and (5) to the extent consistent with the foregoing rule, where the distance from the dominant estate to a public highway may be the shortest.31The first three requisites are not obtaining in the instant case.Contrary to petitioners contention, the trial court found from the records that Concepcion de la Pea had provided petitioners with an adequate ingress and egress towards Boni Serrano Avenue. The trial court, gave weight to TCT No. RT-56958 (100547) covering the property denominated as Lot 1-B in the name of Concepcion de la Pea, mother of petitioner herein Alfredo de la Cruz. Said TCT indicates that a portion of Lot 1-B, consisting of 85 square meters and denominated as Lot 1-B-2, is the one being occupied by petitioners.32In this connection, a copy of the plan of a subdivision survey for Concepcion de la Pea and Felicidad Manalo prepared in 1965 and subdivision plan for Concepcion de la Pea prepared in 1990 revealed an existing 1.50-meter wide alley, identified as Lot 1-B-1, on the lot of Concepcion de la Pea, which serves as passageway from the lot being occupied by petitioners (Lot 1-B-2) to Boni Serrano Avenue.33During the trial, petitioner Elizabeth de la Cruz herself admitted knowledge of the existence of the subdivision plan of Lot 1-B prepared for Concepcion de la Pea by Engr. Julio Cudiamat in 1990. The Subdivision Plan subdivided Lot 1-B into three portions, namely:(1) Lot 1-B-1, which is an existing alley, consisting of 59.60 square meters, towards Boni Serrano Avenue;(2) Lot 1-B-2, consisting of 85.20 square meters, which is being occupied by petitioners; and(3) Lot 1-B-3, consisting also of 85.20 square meters, which is being occupied by the sister of petitioner Alfredo dela Cruz.34From petitioner Elizabeth de la Cruzs own admission, Lot 1-B-1 was intended by the owner, Concepcion de la Pea, to serve as an access to a public highway for the occupants of the interior portion of her property.35Inasmuch as petitioners have an adequate outlet to a public highway (Boni Serrano Avenue), they have no right to insist on using a portion of respondents property as pathway towards 18th Avenue and for which no indemnity was being paid by them.Petitioner Elizabeth de la Cruz claimed before the trial court that although there was indeed a portion of land allotted by Concepcion de la Pea to serve as their ingress and egress to Boni Serrano Avenue, petitioners can no longer use the same because de la Pea had constructed houses on it. As found by the trial court, the isolation of petitioners property was due to the acts of Concepcion de la Pea, who is required by law to grant a right of way to the occupants of her property. In the trial courts rationale:Article 649 of the Civil Code provides that the easement of right of way is not compulsory if the isolation of the immovable is due to the proprietors own acts. To allow defendants access to plaintiffs property towards 18th Avenue simply because it is a shorter route to a public highway, despite the fact that a road right of way, which is even wider, although longer, was in fact provided for them by Concepcion de la Pea towards Boni Serrano Avenue would ignore what jurisprudence has consistently maintained through the years regarding an easement of right of way, that "mere convenience for the dominant estate is not enough to serve as its basis. To justify the imposition of this servitude, there must be a real, not a fictitious or artificial necessity for it." In Francisco vs. Intermediate Appellate Court, 177 SCRA 527, it was likewise held that a person who had been granted an access to the public highway through an adjacent estate cannot claim a similar easement in an alternative location if such existing easement was rendered unusable by the owners own act of isolating his property from a public highway, such as what Concepcion de la Pea allegedly did to her property by constructing houses on the 1.50 meter wide alley leading to Boni Serrano Avenue. And, if it were true that defendants had already bought Lot 1-B-2, the portion occupied by them, from Concepcion de la Pea, then the latter is obliged to grant defendants a right of way without indemnity.36We hasten to add that under the above-quoted Article 649 of the Civil Code, it is theowner, orany person who by virtue of a real right may cultivate or useany immovable surrounded by other immovable pertaining to other persons, who is entitled to demand a right of way through the neighboring estates. In this case, petitioners fell short of proving that they are the owners of the supposed dominant estate. Nor were they able to prove that they possess a real right to use such property. The petitioners claim to have acquired their property, denominated as Lot 1-B-2, from Concepcion de la Pea, mother of defendant Alfredo de la Cruz, who owns Lot 1-B-3, an adjacent lot. However, as earlier noted, the trial court found that the title to both lots is still registered in the name of Concepcion de la Pea under TCT No. RT-56958 (100547).37Neither were petitioners able to produce the Deed of Sale evidencing their alleged purchase of the property from de la Pea. Hence, by the bulk of evidence, de la Pea, not petitioners, is the real party-in-interest to claim a right of way although, as explained earlier, any action to demand a right of way from de la Peas part will not lie inasmuch as by her own acts of building houses in the area allotted for a pathway in her property, she had caused the isolation of her property from any access to a public highway.On the third issue, petitioners cannot find sanctuary in the equitable principle of laches under the contention that by sleeping on her right to reclaim the pathway after almost twenty years, respondent has, in effect, waived such right over the same. It is not just the lapse of time or delay that constitutes laches. The essence of laches is the failure or neglect, for an unreasonable and unexplained length of time, to do that which, through due diligence, could or should have been done earlier, thus giving rise to a presumption that the party entitled to assert it had either abandoned or declined to assert it.38The essential elements of laches are: (a) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation complained of; (b) delay in asserting 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.39The second and third elements,i.e., knowledge of defendant's acts and delay in the filing of such suit are certainly lacking here. As borne by the records, it was only in 1995 that respondent found out that the pathway being used by petitioners was part of her property when a relocation survey and location plan of her property and the adjacent land bought by San Benito Realty were prepared.40She immediately demanded petitioners to demolish the structure illegally constructed by them on her property without her knowledge and consent. As her letter dated 18 February 1995 addressed to petitioners fell on deaf ears, and as no settlement was arrived at by the parties at theBarangaylevel, respondent seasonably filed her complaint with the RTC in the same year.41Respondent, in her Comment,42brings the Courts attention to petitioners conversion of the pathway, subject matter of this case, into a canteen and videoke bar, as shown by the pictures43showing the property bearing the signage, "FREDS44CANTEEN/VIDEOKE KAMBINGAN." Respondent, likewise, complains in her Comment about the structures installed by petitioners that encroached on respondents property line as a result of the commercial activities by petitioners on the disputed property. Petitioners have implicitly admitted this conversion of the propertys use by their silence on the matter in their Reply45and Memorandum.46Such conversion is a telltale sign of petitioners veiled pecuniary interest in asserting a right over the litigated property under the pretext of an innocuous claim for a right of way.Viewed from all angles, from the facts and the law, the Court finds no redeeming value in petitioners asseverations that merit the reversal of the assailed resolutions.WHEREFORE, the instant petition is DENIED. The Resolutions dated 11 September 1998 and 5 March 1999 of the Court of Appeals in CA-G.R. SP No. 68216 are AFFIRMED. The Decision dated 31 July 1997 of the Regional Trial Court is likewise UPHELD. Costs against petitioners.SO ORDERED.Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

Article 620G.R. No. 143643 June 27, 2003NATIONAL POWER CORPORATION,petitioner,vs.SPS. JOSE C. CAMPOS, JR. and MA. CLARA LOPEZ-CAMPOS,respondents.CALLEJO, SR.,J.:This is a petition for review of the Decision1dated June 16, 2000 of the Court of Appeals in CA-G.R. CV No. 54265. The assailed decision affirmedin totothe Decision2of 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 ofP1,980,000 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 courta quoan 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.3The 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.4The 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.5The 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.6Finally, 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.7The complaint a quo thus prayed that the petitioner be adjudged liable to pay the respondents, among others, actual, nominal and moral damages:WHEREFORE, premises considered, it is respectfully prayed that the Honorable Court award the plaintiffs:a. Actual damages for the use of defendants property since middle 1970s, including legal interest thereon, as may be established during the trial;b.P1,000,000.00 as nominal damages;c.P1,000,000.00 as moral damages;d. Lost business opportunity as may be established during the trial;e.P250,000.00 as attorneys fees;f. Costs of suit.Plaintiffs pray for other, further and different reliefs as may be just and equitable under the premises.8Upon 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 ofP1.00 per square meter) of the 2,000 square meters for twenty-four (24) years period, would amount to the aggregate sum ofP480,000.00.From the time National Power Corporation installed those temporary wooden posts, no notice was ever served upon the plaintiffs of their intention to relocate the same or to install permanent transmission line on the property. Also, there was no personal contact between them. However, in late 1994, plaintiffs overseer found a group of persons of the defendant NPC conducting survey inside the said property, and were asked to leave the premises upon being discovered that they have no authority to do so from the owners thereof. Subsequently thereafter, or sometime in 1995, a person by the name of Mr. Paz, bearing a letter from Calaca Regional Office, went to see Justice Jose C. Campos, Jr. in his office, informing the latter that he was authorized by the National Power Corporation to acquire private lands. In the same breath, Mr. Paz requested his permission to let NPC men enter the subject property and to conduct a survey in connection with its plan to erect an all steel transmission line tower on a 24 square meter area inside plaintiffs property, but same was denied. Justice Campos, however, expressed his preference to talk instead to the Chief of the Calaca Sub-station or the Head of the NPC, Quezon City office. Since then, nothing however transpired.Sometime in July or August 1995, plaintiffs learned that defendants agents again entered the subject property. This time, they have presented to the caretaker a letter of authority supposedly from Justice Jose C. Campos, Jr. And, when prodded to see the letter for verification, defendants agents refused to do so. So, they were ordered out of the vicinity. Plaintiffs stressed that defendants repeated intrusions into their property without their expressed knowledge and consent had impugned on their constitutional right to protection over their property.Later, on December 12, 1995, plaintiffs received copy of summons and complaint in Civil Case No. 1174-95 filed by the defendant before the Regional Trial Court, Fourth Judicial Region, Branch 22, Imus, Cavite for the expropriation of 5,320 square meters of plaintiffs above-described property to be used as right-of-way for the all-steel transmission line tower of the Calaca-Dasmarias 230 KV T/L Project. But what had caused plaintiffs discomfiture is the allegation in said complaint stating that the "parcel of land sought to be expropriated has not been applied to nor expropriated for any public use and is selected by plaintiff in a manner compatible with the greatest good and the least private injury" and that defendant "had negotiated with (plaintiffs) for the acquisition of the right-of-way easement over the portion of the same for the public purpose as above-stated at a price prescribed by law, but failed to reach an agreement with them notwithstanding the repeated negotiations between the parties".Plaintiffs assert that at no instance was there a negotiation between them and the NPC or its representative. The alleged "talk" initiated by Mr. Paz with Justice Campos, Jr. just ended in the latters remonstrance and in prevailing upon the former of his preference to discuss the matter with a more responsible officer of the National Power Corporation, such as the Chief of the Calaca Sub-Station or the Head of NPCs Office in Quezon City. But plaintiffs plea just fell on the deaf ear. The next thing they know was Civil Case No. Q-1174-95 already filed in court. A party to a case shall not do falsehood nor shall mislead or misrepresent the contents of its pleading. That gross misrepresentation had been made by the National Power Corporation in their said pleading is irrefutable.Plaintiffs-spouses Campos declared that there are other areas more suitable or appropriate that can be utilized as alternative sites for the all-steel transmission line tower. Just a few meters from the planned right-of-way is an abandoned road occupied by squatters; it is a government property and the possession of which the NPC need not compensate. The latter had not exercised judiciously in the proper selection of the property to be appropriated. Evidently, NPCs choice was whimsical and capricious. Such arbitrary selection of plaintiffs property despite the availability of another property in a manner compatible with the greatest public good and the least private injury, constitutes an impermissible encroachment of plaintiffs proprietary rights and their right to due process and equal protection.Concededly, NPCs intention is to expropriate a portion of plaintiffs property. This limitation on the right of ownership is the paramount right of the National Power Corporation granted by law. But before a person can be deprived of his property through the exercise of the power of eminent domain, the requisites of law must strictly be complied with. (Endencia vs. Lualhati, 9 Phil. 177) No person shall be deprived of his property except by competent authority and for public use and always upon payment of just compensation. Should this requirement be not first complied with, the courts shall protect and, in a proper case, restore the owner in his possession. (Art. 433 Civil Code of the Philippines)Records disclose that in breach of such verbal promise, defendant NPC had not withdrawn the wooden electrical posts and transmission lines; said w