compiled cases - easement and nuissance

7/27/2019 Compiled Cases - Easement and Nuissance

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EOFILO C. VILLARICO, petitioner,s.IVENCIO SARMIENTO, SPOUSES BESSIE SARMIENTO-DEL MUNDO & BETH DEL MUNDO, ANDOITSON CORPORATION and MARITES’ CARINDERIA, respondents.

E C I S I O N

ANDOVAL-GUTIERREZ, J .:

efore us is a petition for review on certiorari of the Decision 1 of the Court of Appeals dated Decembe998 in CA-G.R. CV No. 54883, affirming in toto the Decision2 of the Regional Trial Court (RTCarañaque City, Branch 259, dated November 14, 1996, in Civil Case No. 95-044.

he facts of this case, as gleaned from the findings of the Court of Appeals, are:

eofilo C. Villarico, petitioner, is the owner of a lot in La Huerta, Parañaque City, Metro Manila with an arexty-six (66) square meters and covered by Transfer Certificate of Title (T.C.T.) No. 95453 issued byegistry of Deeds, same city.

etitioner’s lot is separated from the Ninoy Aquino Avenue (highway) by a strip of land belonging toovernment. As this highway was elevated by four (4) meters and therefore higher than the adjoining arhe Department of Public Works and Highways (DPWH) constructed stairways at several portions of this f public land to enable the people to have access to the highway.

ometime in 1991, Vivencio Sarmiento, his daughter Bessie Sarmiento and her husband Beth Del Munespondents herein, had a building constructed on a portion of said government land. In November that sear, a part thereof was occupied by Andok’s Litson Corporation and Marites’ Carinderia, also impleadeespondents.

n 1993, by means of a Deed of Exchange of Real Property, petitioner acquired a 74.30 square meter porf the same area owned by the government. The property was registered in his name as T.C.T. No. 7443he Registry of Deeds of Parañaque City.

n 1995, petitioner filed with the RTC, Branch 259, Parañaque City, a complaint for accion publiciana agaespondents, docketed as Civil Case No. 95-044. He alleged inter alia that respondents’ structures onovernment land closed his "right of way" to the Ninoy Aquino Avenue; and encroached on a portion of hiovered by T.C.T. No. 74430.

espondents, in their answer, specifically denied petitioner’s allegations, claiming that they have been isscenses and permits by Parañaque City to construct their buildings on the area; and that petitioner hasght over the subject property as it belongs to the government.

fter trial, the RTC rendered its Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered:

http://www.lawphil.net/judjuris/juri2004/nov2004/gr_136438_2004.html#fnt1






. Declaring the defendants to have a better right of possession over the subject land except the porhereof covered by Transfer Certificate of Title No. 74430 of the Register of Deeds of Parañaque;

. Ordering the defendants to vacate the portion of the subject premises described in Transfer Certificaitle No. 74430 and gives its possession to plaintiff; and

. Dismissing the claim for damages of the plaintiff against the defendants, and likewise dismissing the cor attorney’s fees of the latter against the former.

Without pronouncement as to costs.

O ORDERED."3

he trial court found that petitioner has never been in possession of any portion of the public land in questn the contrary, the defendants are the ones who have been in actual possession of the area. Accordin

he trial court, petitioner was not deprived of his "right of way" as he could use the Kapitan Tinoy Streeassageway to the highway.

n appeal by petitioner, the Court of Appeals issued its Decision affirming the trial court’s Decision in thus:

WHEREFORE, the judgment hereby appealed from is hereby AFFIRMED in toto, with costs againstaintiff-appellant.

O ORDERED."4

n this petition, petitioner ascribes to the Court of Appeals the following assignments of error:

THE FINDINGS OF FACT OF THE HON. COURT OF APPEALS CONTAINED A CONCLUSION WITHOITATION OF SPECIFIC EVIDENCE ON WHICH THE SAME WAS BASED.

THE HON. COURT OF APPEALS ERRED IN CONSIDERING THAT THE ONLY ISSUE IN THIS CASWHETHER OR NOT THE PLAINTIFF-APPELLANT HAS ACQUIRED A RIGHT OF WAY OVER THE LA

F THE GOVERNMENT WHICH IS BETWEEN HIS PROPERTY AND THE NINOY AQUINO AVENUE.

I THE HON. COURT OF APPEALS ERRED IN CONCLUDING THAT ACCION PUBLICIANA IS NOT TROPER REMEDY IN THE CASE AT BAR.

V THE HON. COURT OF APPEALS ERRED IN CONCLUDING THAT THE EXISTENCE OF LAINTIFF-APPELLANT’S RIGHT OF WAY DOES NOT CARRY POSSESSION OVER THE SAME.

THE HON. COURT OF APPEALS ERRED IN NOT RESOLVING THE ISSUE OF WHO HAS THE BETTIGHT OF POSSESSION OVER THE SUBJECT LAND BETWEEN THE PLAINTIFF-APPELLANT AND TEFENDANT-APPELLEES."5

n their comment, respondents maintain that the Court of Appeals did not err in ruling that petitioner’s acor accion publiciana is not the proper remedy in asserting his "right of way" on a lot owned by overnment.









ere, petitioner claims that respondents, by constructing their buildings on the lot in question, have deprm of his "right of way" and his right of possession over a considerable portion of the same lot, which porcovered by his T.C.T. No. 74430 he acquired by means of exchange of real property.

is not disputed that the lot on which petitioner’s alleged "right of way" exists belongs to the state or propf public dominion. Property of public dominion is defined by Article 420 of the Civil Code as follows:

ART. 420. The following things are property of public dominion:

) Those intended for public use such as roads, canals, rivers, torrents, ports and bridges constructed bytate, banks, shores, roadsteads, and other of similar character.

2) Those which belong to the State, without being for public use, and are intended for some public servicor the development of the national wealth."

ublic use is "use that is not confined to privileged individuals, but is open to the indefinite public." 6 Rechow that the lot on which the stairways were built is for the use of the people as passageway to the highwonsequently, it is a property of public dominion.

roperty of public dominion is outside the commerce of man and hence it: (1) cannot be alienated or lear otherwise be the subject matter of contracts; (2) cannot be acquired by prescription against the State; (ot subject to attachment and execution; and (4) cannot be burdened by any voluntary easement. 7

onsidering that the lot on which the stairways were constructed is a property of public dominion, it cane burdened by a voluntary easement of right of way in favor of herein petitioner. In fact, its use by the puby mere tolerance of the government through the DPWH. Petitioner cannot appropriate it for himself. Ve

e can not claim any right of possession over it. This is clear from Article 530 of the Civil Code wrovides:

ART. 530. Only things and rights which are susceptible of being appropriated may be the objecossession."

ccordingly, both the trial court and the Court of Appeals erred in ruling that respondents have better righossession over the subject lot.

owever, the trial court and the Court of Appeals found that defendants’ buildings were constructed onortion of the same lot now covered by T.C.T. No. 74430 in petitioner’s name. Being its owner, he is ento its possession.

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals dated Decembe998 in CA-G.R. CV No. 54883 is AFFIRMED with MODIFICATION in the sense that neither petitionerespondents have a right of possession over the disputed lot where the stairways were built as it is a propf public dominion. Costs against petitioner.

O ORDERED.

Kinds of easement







Real and personal servitudes

.R. No. L-17482 March 31, 1966

ENOVEVA R. JABONETE, ET AL., plaintiffs, s.ULIANA MONTEVERDE, ET AL., defendants,NTONIO LEGASPI, respondent-appellant,EVELOPMENT BANK OF THE PHILIPPINES, petitioner-appellee,

MRS. LUZ ARCILLA, petitioner-intervenor-appellee.

uño and Mojica for the respondents-appellaesus Avanceña for the plaintiffs.

EGALA, J.:

his is an appeal from an order of the Court of First Instance of Davao, dated March 11, 1960, findingespondent-appellant, Antonio Legaspi, guilty of contempt of court, and imposing upon him a fine of P100.

n March 11, 1954, the Court of First Instance of Davao, in view of its finding in Case No. 824, enti

abonete vs. Monteverde, et al ., that Antonio Legaspi acquired the lot in question with the knowledge thgravamen" or easement of right of way existed thereon, promulgated a decision the dispositive portiohich reads:

rdena al demandado Antonio Legaspi la demolicion de la parte del corral construido a lo largo de su terrue impide a lote demandantes tener acceso con la vereda que communica con la carretera principal, Tolaudio.

eclara que los demandantes tienen derecho el uso de la vereda (Exh. A-3), de 3 metros de ancho, uaso que disponen para communicarse con la Calle Tomas Claudio, para el paso de sus jeeps, yehiculos, reparados que entran y salen del taller de reparacion de aquellos.

he respondent-appellant received a copy of the decision on May 12, 1954. Two days later, May 14, 1954ed his notice of appeal therefrom. On May 21, 1954 however, upon a previous motion of the plaintiffs

ower court issued an order granting discretionary execution of the said decision. In view of this mentioned order, the plaintiffs immediately proceeded to the premises in question and opened in the fenche defendant Antonio Legaspi a sufficient opening for the passage of men and vehicles. Even then, howehe defendant filed with the court below on that very same day, May 21, 1954, a motion for econsideration of the order granting discretionary execution. Thereafter, and upon the lower couggestion, the parties entered into an amicable agreement which was later embodied in an order or "aated May 24, 1954, to wit:

raiz de la mocion del demandado pidiendo antre otras cosas, la reconsideracion de la orden de ejecue la decision dictada en esta causa, el 22 del Mayo de 1954, el Juez que preside esta sala se constitara una inspeccion ocular en el lugar en conflicto.

urante la inspeccion ocular, los demandantes y demandado, Antonio Legaspi, llegaron a un acuerdo:



. Los demandantes no instalaran en su terreno su taller de reparacion de vehiculos de motor.

. Los demandantes pueden construir su garaje dentro de su terreno para su jeep (AC), pero no los tendarados en la calle privada del demandados construida por este en su terreno a lo largo del terreno deemandantes;

. Los demandantes contribuiran a prorata con el demandado los gastos de reparacion de la calle privonstruida por el referido demandado en su terreno a lo largo del terreno de los demandantes. 1äwphï1.ñë

. El demandado, Antonio Legaspi, permitira el uso y paso en la calle privada construida por el en su terrlo largo del terreno de los demandantes, a estos, su familia, sus amigos, chofers, servidumbre y de eeps.

. Para los fines del uso de la calle, el demandado permitira a los demandantes, frente de la casa de esbrir una puerta de 4 metros de ancho en el corral construido por el demandado que separa la calle priva terreno de los demandantes, a su (demandantes) costa; sus hojas tendran por dentro, queemandantes tendran cerradas para evitar que los niños, hijos de los inquilinos del demandado tencceso a los jeeps de los demandantes, cuyo garaje tendran dentro de su (demandantes) terreno.

l Juzgado ordena a las partes litigantes complan estrictamente con lo estipulado; de los contrario,mismos estaran sujetos a las ordenes de este Juzgado.

s a result of the above agreement and Order of May 24, 1954, the defendant abandoned the prosecutios appeal. At the same time, both parties complied with its terms until the plaintiffs, unable to continue

heir repair shop, transferred to another place in December 1959 whereupon the defendant reconstructedence and its footing, closing thereby the opening previously made by the plaintiffs.

n the course of time, the plaintiffs' lot was foreclosed by the Development Bank of the Philippines (Dhich, later still, conveyed it under a conditional sale to Mrs. Luz Arcilla. On her acquisition of the said

Mrs. Arcilla demanded of the defendant the re-opening of the fence in question as it was her plan to conster house in the said lot. When the defendant refused, the Development Bank filed with the lower couetition to hold the said defendant in contempt. To this petition, Mrs. Luz Arcilla later intervened and waslowed by the lower court. The Development Bank of the Philippines and Mrs. Luz Arcilla contended that

efusal of the defendant to cause or allow the making of an opening in his fence was a defiance of the ourt's decision of March 11, 1954 and was, therefore, contemptuous. After due hearing, the lower custained the petitioners and found the defendant guilty of contempt with orders "to pay a fine of undred Pesos (P100.00) and to open the vereda or alley leading to the lot owned by the Development Bf the Philippines and conveyed to Mrs. Luz S. Arcilla under a conditional deed of sale, otherwise he she imprisoned until he does so." Thus, the instant appeal.

he respondent-appellant maintains that the lower court erred in finding him guilty of contempt because:

. The decision of March 11, 1954 was novated by the order of May 24, 1954. Consequently, he couldave violated the former decree since with its novation it ceased to have any legal effect.

. Even assuming that the said decision was not novated by the subsequent order of May 24, 1954, stilould not be deemed to have violated the said decision because the same never became final and executhe respondent-appellant argued that since the decision of March 11, 1954 ordered the opening of a righ



ay in his property without providing for this corresponding compensation to him, contrary to Article 649 ofivil Code,1 there was in the said decision "a void which ought to be filled or to be done in order to complespose of the case. It was not clear, specific and definitive," and consequently, a judgment that couldave acquired finality.

. The right to file contempt proceedings against him, with respect to the decrees contained in the decisioMarch 11, 1954, has prescribed. The respondent-appellant conceded that there is no prescriptive periodhe institution of contempt proceedings. However, he contended that inasmuch as contempt under Rule 6he Rules of Court is punishable by arresto mayor , it should prescribe in five years just as crimes for whichaid 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 onding the respondent-appellant guilty of contempt should be reversed. It is clear that the order of May954 superseded and was fully intended by the lower court to modify or stand in substitution of the decisio

March 11, 1954. More than the expression of the parties amicable agreement on the dispute, the said oas the lower court's resolution of the respondent-appellant's motion for reconsideration of the decisio

March 11, 1954. In the determination, therefore, of the said appellant's obligation relative to the easemeuestion, the latter and not the decision of March 11, 1954 is the proper point in reference.

nder the aforesaid order of May 24, 1954, the easement awarded or secured by the lower court toaintiffs was strictly a personal one. The right of way granted was expressly limited to the latter and tamily, friends, drivers, servants and jeeps." In the very language of the agreement the following appears:

l demandado Antonio Legaspi, permitira el uso y paso en la calle privada construida por el en su terreno argo del terreno de los demandantes, a estos, su familia, sus amigos, chofers, servidumbre y de sus jeep

he servitude established was clearly for the benefit alone of the plaintiffs and the persons above enumerand it is clear that the lower court, as well as the parties addressed by the said order, did not intend the sao pass on to the plaintiffs'uccessors-in-interest. In other words, the right acquired by the original plaintiffs was a personal servitnder Article 614 of the Civil Code, and not a predial servitude that inures to the benefit of whoever ownsominant estate.

n resisting the extension of the aforementioned easement to the latter, the plaintiffs' successors-in-intehe respondent-appellant, therefore, was not defying the decision of March 11, 1954 which was thenonger subsisting, nor the order of May 24, 1954 since the said successors-in-interest had no right thereun

nother evidence that the servitude in question was personal to the plaintiffs is the fact that the same ranted 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 guiltontempt is hereby reversed, without pronouncement as to costs.

engzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, oncur.autista Angelo and Dizon, JJ., took no part.

ootnotes



ART. 649. "The owner, or any person who by virtue of a real right may cultivate or use any immovable, wsurrounded by other immovables pertaining to other persons without adequate outlet to a public highwa

ntitled to demand a right of way through the neighboring estates, after the payment of the proper indemn

.R. No. 136996 December 14, 2001

DILBERTO ALCANTARA, FLORENCIO VILLARMIA, POLICARPIO OBREGON, + RICARDO ROBSCOLASTICA ONDONG, ESTEBAN RALLOS, HENRY SESBINO, SERGIO SESBINO, MANENTENO, + RENATO CRUZ, MARCELINO CENEZA, BUENAVENTURA ONDONG, and BENJAALASAN, petitioners,s.ORNELIO B. RETA, JR., respondent.

ARDO, J .:

he Case

n this petition for review,1 petitioners seek to review the decision2 of the Court of Appeals affirmingecision3 of the Regional Trial Court, Davao City, Branch 14, dismissing petitioners' complaint for the exerf the right of first refusal under Presidential Decree No. 1517, injunction with preliminary injunction, attornees and nullity of amicable settlement.

he Facts

dilberto Alcantara, Florencio Villarmia, Policarpio Obregon, Ricardo Roble, Escolastica Ondong, Esteallos, Henry Sesbino, Sergio Sesbino, Manuel Centeno, Renato Cruz, Marcelo Ceneza, Buenavenndong and Benjamin Halasan, filed with the Regional Trial Court, Davao City, Branch 14, a complagainst Cornelio B. Reta, Jr. for the exercise of the right of first refusal under Presidential Decree No. 15junction with preliminary injunction, attorney's fees and nullity of amicable settlement.

he plaintiffs claimed that they were tenants or lessees of the land located in Barangay Sasa, Davao Covered by Transfer Certificate of Title No. T-72594, owned by Reta; that the land has been convertedeta into a commercial center; and that Reta is threatening to eject them from the land. They assert that ave the right of first refusal to purchase the land in accordance with Section 3(g) of Presidential Decree 517 since they are legitimate tenants or lessees thereof.

hey also claimed that the amicable settlement executed between Reta and Ricardo Roble was void ab or being violative of Presidential Decree No. 1517.

n the other hand, Reta claimed that the land is beyond the ambit of Presidential Decree No. 1517 sincas not been proclaimed as an Urban Land Reform Zone; that the applicable law is Batas Pambansa Blgor failure of the plaintiffs to pay the rentals for the use of the land; and that the amicable settlement betwm and Ricardo Roble was translated to the latter and fully explained in his own dialect.

n March 8, 1994, the trial court rendered a decision dismissing the complaint and ordering the plaintiffay Reta certain sums representing rentals that had remained unpaid. 5

n April 6, 1994, plaintiffs appealed the decision to the Court of Appeals.6



n December 9, 1998, the Court of Appeals promulgated a decision 7 affirming in toto the decision of theourt.

ence, this appeal.8

he Issue

he issue is whether petitioners have the right of first refusal under Presidential Decree No. 1517.

he Court's Ruling

he petition is without merit.

he area involved has not been proclaimed an Urban Land Reform Zone (ULRZ). In fact, petitioners fileetition with the National Housing Authority requesting that the land they were occupying be declared asLRZ. On May 27, 1986, the request was referred to Mr. Jose L. Atienza, General Manager, Natioousing Authority, for appropriate action.9 The request was further referred to acting mayor Zafiro Respavao City, as per 2nd Indorsement dated July 1, 1986.10 Clearly, the request to have the land proclaimen ULRZ would not be necessary if the property was an ULRZ.

residential Decree No. 1517, otherwise known as "The Urban Land Reform Act," pertains to aroclaimed as Urban Land Reform Zones.11 Consequently, petitioners cannot claim any right under the

aw since the land involved is not an ULRZ.

o be able to qualify and avail oneself of the rights and privileges granted by the said decree, one must) a legitimate tenant of the land for ten (10) years or more; (2) must have built his home on the land

ontract; and, (3) has resided continuously for the last ten (10) years. Obviously, those who do not fall whe said category cannot be considered "legitimate tenants" and, therefore, not entitled to the right of efusal to purchase the property should the owner of the land decide to sell the same at a reasonable pithin a reasonable time.12

espondent Reta denies that he has lease agreements with petitioners Edilberto Alcantara and Ricaoble.13 Edilberto Alcantara, on the other hand, failed to present proof of a lease agreement other than

estimony in court that he bought the house that he is occupying from his father-in-law. 14

espondent Reta allowed petitioner Ricardo Roble to use sixty-two (62) coconut trees for P186 from whe gathered tuba. This arrangement would show that it is a usufruct and not a lease. Usufruct gives a righnjoy the property of another with the obligation of preserving its form and substance, unless the onstituting it or the law otherwise provides.15

etitioner Roble was allowed to construct his house on the land because it would facilitate his gatherinuba. This would be in the nature of a personal easement under Article 614 of the Civil Code. 16

Whether the amicable settlement17 is valid or not, the conclusion would still be the same since the agreemas one of usufruct and not of lease. Thus, petitioner Roble is not a legitimate tenant as definedresidential Decree No. 1517.



s to the other petitioners, respondent Reta admitted that he had verbal agreements with them. otwithstanding, they are still not the legitimate tenants contemplated by Presidential Decree No. 1517, wan exercise the right of first refusal.

contract has been defined as "a meeting of the minds between two persons whereby one binds himith respect to the other, to give something or to render some service.'' 18

learly, from the moment respondent Reta demanded that the petitioners vacate the premises, the veease agreements, which were on a monthly basis since rentals were paid monthly, 19 ceased to exist as tas termination of the lease.

ndeed, none of the petitioners is qualified to exercise the right of first refusal under P.D. No. 1517.

nother factor which militates against petitioners' claim is the fact that there is no intention on the paespondent Reta to sell the property. Hence, even if the petitioners had the right of first refusal, the situahich would allow the exercise of that right, that is, the sale or intended sale of the land, has not happe.D. No. 1517 applies where the owner of the property intends to sell it to a third party. 20

he Fallo

WHEREFORE, the Court DENIES the petition. The Court AFFIRMS the decision of the Court of Append the resolution denying reconsideration thereof.

o costs.

O ORDERED.

ublic and private easements

.R. No. L-42334 October 31, 1936

ORTH NEGROS SUGAR CO., plaintiff-appellant,s.ERAFIN HIDALGO, defendant-appellee.

Hilado and Hilado for appelimeon Bitanga for appeoss, Lawrence, Selph and Carrascoso and DeWitt, Perkins and Ponce Enrile as amici curiæ.

ECTO, J.:

On October 12, 1933, the plaintiff filed before the Court of First Instance of Occidental Negroomplaint praying, upon the allegations contained therein, that in an injunction be issued, restrainingefendant from entering or passing through the properties of the plaintiff, specially through the "mill siteaintiff's sugar central.



It appears that the plaintiff is the owner of a site in which is located its sugar central, with its facuilding and residence for its employees and laborers, known as the "mill site." It also owns the adjoiugar plantation known as Hacienda "Begoña." Across its properties the plaintiff constructed a onnecting the "mill site" with the provincial highway. Through this road plaintiff allowed and still allehicles to pass upon payment of a toll charge of P0.15 for each truck or automobile. Pedestrians are allowee passage through it.

Immediately adjoining the above-mentioned "mill site" of the plaintiff is the hacienda of Luciano Agunown as Hacienda "Sañgay," where the defendant has a billiard hall and a tuba saloon. Like other peopnd about the place, defendant used to pass through the said road of the plaintiff, because it was his

means of access to the Hacienda "Sañgay" where he runs his billiard hall and tuba saloon. Later on, by of the plaintiff, every time that the defendant passed driving his automobile with a cargo of tuba plaatekeeper would stop him and prevent him from passing through said road. Defendant in such cases meeviated from said road and continued on his way to Hacienda "Sañgay" across the fields of HacieBegoña," likewise belonging to the plaintiff.

The alleged conveyance of tuba to plaintiff's "mill site" or the sale thereof within its property haseen established by the evidence adduced in this case. This the plaintiff admits in its brief (p.15). Neith

here any evidence to show that the defendant actually created disturbance in plaintiff's properties, inclus "mill site."

Other pertinent facts will be stated in appropriate places in this decision.

. First of all it may be stated that in the case at bar the injunction applied for, constitutes, unlikeuxiliary and subordinate remedy that it ordinarily is, the principal remedy itself. The relief should onlyranted, therefore, after it has been established not only that the right sought to be protected exists, but hat the acts against which the injunction is to be directed are violative of said right.

SEC. 164. Circumstances under which a preliminary injunction may be granted. A preliminary injuncmay be granted when it is established, in the manner herein-after provided, to the satisfaction of the juranting it:

. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consistestraining the commission or continuance of the acts complained of either for a limited period or perpetua

. That the commission or continuance of some act complained of during the litigation would probably worstice to the plaintiff;

. That the defendant is doing, or threatens, or is about to do, or in procuring or suffering to be done, soct probably in violation of the plaintiff's rights, respecting the subject to the action, and tending to renderdgment ineffectual. (Code of Civil Procedure.)

In order that, at the final trial of a case, an injunction may issue perpetually prohibiting the repetitioontinuation of an act complained of, it is indispensable that it shall have been proven at trial that he eeks such a remedy is entitled to ask for it; if he is not, his request must be denied. (Tumacder vs. Nuevahil., 513.)



The extraordinary remedy of injunction will not be granted to prevent or remove a nuisance unhere is a strong case of pressing necessity, and not because of a trifling discomfort. (De Ayala vs. Barr3 Phil., 538.)

The existence of a right violated is a prerequisite to the granting of an injunction. . . . A permanjunction should not be awarded except in a clear case and to prevent irreparable injury. (32 C. J., 34-36.

A court of chancery will not entertain a bill enforce a mere valueless abstract right, and the court wills own motion, raise the point for its own protection. (Dunnom vs. Thomsen, 58 Ill. App., 390.)

None of these requisites is present in the instant case. There has been a failure to establish eitherxistence of a clear and positive right of the plaintiff specially calling for judicial protection throughxtraordinary writ of the kind applied for, or that the defendant has committed or attempts to commit anyhich has endanger or tends to endanger the existence of said right, or has injured or threatens to injureame.

In obtaining ex-parte a preliminary injunction in the lower court, the plaintiff made under oath iomplaint the following allegations, which later turned out to be untrue, or, at least, beyond the capacitaintiff to prove:

. That on sundry occasions heretofore, the defendant used to go to the said "mill site" of the plaintiff, pasver the latter's private roads, and there caused trouble among the peaceful people of the place.

. That the plaintiff, through its representatives, has prohibited the defendant from entering its priroperty, but this notwithstanding, the defendant still persists in repeating his incursions into the said prioads and "mill site" of the plaintiff, disturbing public order and molesting plaintiff's employees and tamilies.

The court, in its order granting the preliminary injunction said:

Considering the said injunction and the sworn statement of its correctness filed by plaintiff's attornend it appearing satisfactorily that the issuance of a preliminary injunction is in order because ofufficiency of the grounds alleged, upon the filing of a bond, it is hereby, etc. . . . .

After obtaining the preliminary injunction, the plaintiff amended its complaint by eliminating therefhose very allegations upon which the court granted the temporary remedy, namely, the acts imputed toefendant "of causing trouble among the peaceful people of plaintiff's "mill site," and of disturbing public ond molesting plaintiff's employees and their families within the private roads and the "mill site" ofaintiff." The plaintiff doubtless overlooked the fact that the allegation it availed of to obtain a prelimijunction was necessary to secure one of a permanent character. In its new complaint, its only grievanc

hat the defendant insists in passing through its property to take tuba to the Hacienda "Sañgay" (which dot belong to the plaintiff but to Luciano Aguirre, and where the defendant has established a legitimusiness). The amended complaint no longer alleges that the defendant went to the "mill site" and torivate roads of the plaintiff "to cause trouble, disturb public order and molest plaintiff's employees and tamilies."

It develops, however, that neither the original complaint nor the one amended states how and whymere passage of the defendant over plaintiff's estate to convey tuba to the Hacienda "Sañgay" has cau



amages to the plaintiff's property rights, requiring the unusual intervention and prohibition thereof byourts through injunctive relief. The plaintiff failed not only to make any allegation to this effect, but also totate that the road on its property where the defendant used to pass on his way to the Hacienda "Sañgas open to the public in general, and that the plaintiff, exercising without any permit a power exclusi

odged in the state by reason of its sovereign capacity, required the payment of passage fees for the usaid road.

Now, there being no contention here that the defendant, in passing over plaintiff's estate to take tubhe Hacienda "Sañgay," occasioned damages to such estate, or that he sold tuba within the confines thehat could have been the basis of the plaintiff's right for which the special protection of the court is invond of the illegal act laid at defendant's door? Defendant's passage over plaintiff's property does not, of itonstitute an unlawful act inasmuch as the plaintiff, of its own accord, opened the same to the puonditioned only upon the payment of transit fees by motor vehicles. Neither does the mere transportatiouba over plaintiff's estate amount to a violation of the latter's property rights, unless the goods' destinationt any point within the confines thereof, or unless the said goods be sold in transit to the laborers mployees of the plaintiff, which, as plaintiff itself admits in his brief. (p. 15), has not been shown.

The deduction from plaintiff's evidence is, that the real damage which it seeks to avoid does not con defendant's taking tuba with him while traversing the former's property, as there is no causal relaetween the act and any resultant damage, but in the fact that tuba is disposed of at the Hacienda "Saño which plaintiff's laborers have access. What should, therefore, be enjoined, if it were legally possibleefendant's sale of tuba at the Hacienda "Sañgay," and not its conveyance across plaintiff's estate. But ifaintiff concedes (brief, p. 16), the former cannot legally enjoined, least of all can the latter be restrained

ong as the public in general is free to go about the said property and it has not been shown thatefendant, in passing through, it has occasioned damage thereto or has committed any act infrinaintiff's property rights or has refused to pay the required road toll.

Defendant's sale of tuba at the Hacienda "Sañgay" is nothing more than the exercise of a legitimusiness, and no real damage to the third persons can arise from it as a natural and logical consequehe bare possibility that plaintiff's laborers, due to the contiguity of the Hacienda "Sañgay" to its prope

might come to the defendant's store to imbibe tuba to drunkenness, does not warrant the conclusion thaefendant, in thus running this business, impinges upon plaintiff's property rights and should therebydicially enjoined. The damage which plaintiff seeks to enjoin by this action does not consist, as has bemonstrated, in defendant's maintaining a tuba store at the Hacienda "Sañgay," or in defendant's cross property while taking tuba to the Hacienda "Sañgay," but in its laborers finding their way to the sacienda in order to buy tuba and become drunk. In other words, the act sought to be restrained as injurr prejudicial to plaintiff's interests, is that committed, not by the defendant, but by plaintiff's own laborightly and logically, the injunction should be directed against said laborers to the end that they shobstain from going to the Hacienda "Sañgay" in order to buy tuba and become drunk. As it would snusual for the plaintiff to do this, it should at least exercise stricter vigilance and impose rigorous discipn its laborers by, for instance, punishing drunkenness with expulsion. Plaintiff's remedy lies in its own hnd should not be looked for in the courts at the sacrifice of other interests no less sacred and legitimate the plaintiff's.

Where one has a right to do a thing equity has no power to restrain him from doing it. (Dammannydraulic Clutch Co., 187 Pac., 1069.) Acts under the authority of the law will not be enjoined (Bonaparteamden, etc. Railroad Co., 3 Fed. Cas. No. 1617, Baldw., 205). Lawful exercise of rights incidentally injuthers may not be enjoined by injunction. (14 R. C. L., 369.) "It is . . . an established principle that one



ot be enjoined from doing lawful acts to protect and enforce his rights of property or of persons, . . . ." (1. L., pp. 365, 366.)

It is said that the plaintiff seeks to enjoin the defendant, not from selling tuba at his store inacienda "Sañgay," but from passing through its property to introduce tuba to said hacienda (plaintiff's b. 16.) The legal rule, however, is that what the law does not authorize to be done directly cannot be hdirectly. If the plaintiff cannot judicially enjoin the defendant from selling tuba at the Hacienda "Sañgeither can it obtain said injunction to prevent him from passing over its property to transport tuba toace as long as the defendant is ready to pay the transit fees required by the plaintiff and does not sel

aid goods inside the said property.

Suppose that the defendant, instead of being a tuba vendor, is a social propagandist whreachings, while not subversive of the established legal order, are not acceptable to some capitalrganizations, say the plaintiff. Suppose that the defendant, armed with the corresponding official pehould desire to go to Hacienda "Sañgay" through plaintiff's estate for the purpose of explaining to

aborers the advantage of the latter organizing themselves into unions, or joining existing ones, to beefend their interests. Plaintiff learns in time of the plan and determines to frustrate it in the belief that it woe prejudicial to its interests for the laborers to be "unionized," while it is for its good that the laborersontracted under the so-called "open shop" system. Unable to stop the holding of the meeting becauseame is not to take place on its property may he plaintiff secure an injunction from the court to preventefendant to pass through the said property in order to reach the place of the meeting, by alleging thatefendant entertains theories of social reform which might poison the minds of the laborers at the expenshe plaintiff's interests? May the latter, under the same hypothesis, maintain that the defendant's acassing through its property, which is open to public use, constitute trespass or usurpation restrainablejunction? If the answer to these questions is, as it must be, in the negative, the present case is

usceptible of a different solution. The only difference between the two cases is that in the one supposedreaded damage to plaintiff's interests is of more moment and of more lasting effect than in the case at ba

When a private road has been thrown open to public use, no action for trespass is maintainable agany person who desires to make use thereof; consequently, an injunction suit likewise does not lie.

Private roads, except where laid out under constitutional provisions authorizing the condemnatiorivate property for a private use, are public roads in the sense that they are open to all who see fit to hem, and it is immaterial that the road is subject to gates and bars, or that it is merely a cul de sac . Bhus considered as a public road, it necessarily follows that the owner of the land through which the roaaid out cannot maintain an action of trespass against any person using it; . . . (50 C. J., pp. 397, 398.)

. . . Where it is clear that the complainant does not have the right that he claims, he is not entitled tojunction, either temporary or perpetual, to prevent a violation of such supposed right. . . . An injunctionot issue to protect a right not in esse and which may never arise or to restrain an act which does not se to a cause of action, . . . . (32 C. J., pp. 34, 35.)

. In its brief, plaintiff states:

In transporting the tuba which he sells in his saloon in Hacienda "Sañgay" the defendant used to phru the private road of the plaintiff which connects its sugar central with the provincial road. On this prioad the plaintiff has put up a gate under the charge of a keeper, and every time that the defendant pasith a cargo of tuba the gatekeeper would stop him and remind him that the tuba was not permitted entry



he private properties of the company, but instead of heeding this prohibition the defendant would simeviate from the road and continue on his way to hacienda "Sañgay" by way of the fields of HacieBegoña." which is also the private property of the plaintiff.

It is deducible from the above statement that, whenever the gatekeeper of the plaintiff preventedefendant from passing thru its so-called "private road," on his way to the provincial road to HacieSañgay," the defendant deviated from said road and carried the tuba across the lands of Hacienda "Begeading to the Hacienda "Sañgay." The evidence discloses that the passageway across the HacieBegoña," is the same one frequented by carabaos (s. t., 32, 36). Plaintiff intends not only to prohibitefendant from using the road in question, but also from crossing the lands of the Hacienda "Begoña," elonging to the plaintiff, where carabaos are allowed to roam. An act so shocking to the conscience, oneminded, could only have been perpetrated during the feudal period when human rights were unmerciacrificed to property rights. If an injunction should lie in the instant case, it should be in favor of the defennd against the plaintiff, to enjoin the latter from obstructing the former to pass over the road in questioonvey tuba to the Hacienda "Sañgay." It is indeed strange that it is the plaintiff and not the defendant hould have applied for the remedy.

. . . An injunction will not be granted when good conscience does not require it, where it will opeppressively or contrary to justice, where it is not reasonable and equitable under the circumstances ofase, or where it will tend to promote, rather than to prevent, fraud and injustice. . . . (32 C. J., p. 33.) . ourt of equity may interfere by injunction to restrain a party from enforcing a legal right against all equity onscience. . . . (14 R. C. L., pp. 365, 366, par. 66.) . . . The comparative convenience or inconvenienche parties from granting or withholding the injunction should be considered, and none should be grantedould operate oppressively or inequitably, or contrary to the real justice of the case. This doctrine is stablished. . . . (14 R. C. L., pp. 357, 358, par. 60.)

The power of the courts to issue injunctions should be exercised with great caution and only whereeason and necessity therefor are clearly established; and while this rule has been applied more frequenthe case of preliminary and mandatory injunctions, it applies to injunctions of all classes, and to restrairders. . . . (32 C. J., pp. 33, 34.)

The writ of injunction will not be awarded in doubtful or new cases not coming within well-establisrinciples of equity. (Bonaparte vs. Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617; Hardesty vs. Tafm. Dec., 584.)

. Plaintiff's action is frivolous and baseless.

Plaintiff states in the sixth paragraph of its amended complaint:

6. That, in addition, the plaintiff, in the exercise of it property rights, does not want to allow the enthe defendant in any part of its estate above mentioned in order to avert any friction or ill-feeling against hi

The plaintiff, in petitioning the courts for an injunction to avert "friction or ill-feeling" againstefendant, invoking its sacred property rights, attempts to intrust to them a mission at once beyond thonferred upon them by the Constitution and the laws, and unbecoming of their dignity and decorum.

. Plaintiff has not established the existence, real or probable of the alleged damage against whichjunction is invoked.



As has been seen, the allegations of the amended complaint do not justify the granting of an injunche said allegations only state, as the basis of plaintiff's action, that the defendant insists in passinmaking incursions" on plaintiff's property to take tuba to the Hacienda "Sañgay," and the plaintiff wanvoid "friction and ill-feeling against him." Such allegations do not imply the existence, of any real damagaintiff's rights which should be enjoined, and do not, therefore, constitute a legal cause of action. Onther hand, what the plaintiff attempted to establish by its evidence differs from the allegations of its amenomplaint. What said evidence really discloses is not, that the plaintiff had forbidden the defendant to conuba to the Hacienda "Sañgay" through plaintiff's estate, but to introduce tuba into the central or to placen its lands, or, according to Exhibit A, to trespass illegally on plaintiff's estate. The testimony ofatekeeper Santiago Plagata and the accountant Ankerson is as follows:

Q. Why did you detain him? — A. Because the Central forbids the bringing of tuba to the Central.

Q. Why does the Central prohibit the entry of tuba? — A. The Central prohibits the entry of tuba tecause the laborers, generally, buy tuba, drink it and become drunk, and are unable to work, and sometihey fight because they are drunk. (S. t., p. 5.)

Q. Why did you kick them? — A. Because the North Negros Sugar Co. prohibits the placing of tuba on thands. (S. t., pp. 38, 39.)

Exhibit A, the alleged letter addressed by the plaintiff to the defendant, recites:

Mr. SERAFIN HIDALGO, Driver of Auto, License No. 1085-1935.

resent.

SIR: Effective this date, you are hereby forbidden to trespass upon any of the Company's propender penalties of law prescribed for trespass.

ORTH INTEGROS SUGAR CO., INC,.y: (Sgd.) Y. E. GREENFIELD

Manager

It will be noted that according to this letter, the defendant was enjoined by the plaintiff from passing s properties, whether he carried tuba or not.

Plaintiff's admission in its brief (p. 15) that it has not been established that the defendant has brouba to the "mill site," or has sold it within its property, is fatal to the present action charging the defenith said acts.

. The well-known principle of equity that "he who comes to equity must come with clean hands" he granting of the remedy applied for by the plaintiff.

It has been already stated that the plaintiff, to obtain a preliminary injunction in this case, alleged unath in its original complaint facts which it knew to be false, or, at least, unprobable, because it did not iminate them from the amended complaint which it filed after the issuance of the preliminary injunction, b

ailed to substantiate them at the trial. We refer to the following allegations: "that the defendant used to ghe "mill site" of the plaintiff passing through plaintiff's private roads and there cause trouble among peac



eople of the place," and "that notwithstanding the prohibition of the plaintiff, the defendant insists in repeas incursions into the said private roads and "mill site" of the plaintiff, disturbing public order and molesaintiff's employees and their families."

If said allegations were true, it is evident that plaintiff was entitled to a preliminary injunction atommencement of the trial, and to a permanent injunction after the was rendered. But such is not the casehe subsequent theory of the plaintiff, announced in its amended complaint, is not that the defendant "mcursions into the "mill site" and private roads of the plaintiff, causing trouble, disturbing public order,

molesting plaintiff's employees and their families," but only that the defendant, to take tuba to the HacieSañgay," belonging to Luciano Aguirre, insisted in passing through plaintiff's estate. From all this it folhat the plaintiff in order to obtain a preliminary injunction, trifled with the good faith of the lower cournowingly making untrue allegations on matters important and essential to its cause of action. Consequedid not come to court with clean hands.

Coming into Equity with Clean Hands. — The maxim that he who comes into equity must come ean hands is, of course, applicable in suits to obtain relief by injunction. Injunction will be denied e

hough complainant shows that he has a right and would otherwise be entitled to the remedy in casppears that he himself acted dishonestly, fraudulently or illegal in respect to the matter in which redresought, or where he has encouraged, invited or contributed to the injury sought to be enjoined. Howevereneral principle that he who comes into equity must come with clean hands applies only to plaintiff's conelation to the very matter in litigation. The want of equity that will bar a right to equitable relief for coming ourt with unclean hands must be so directly connected with the matter in litigation that it has affectedquitable relations of the parties arising out of the transaction in question. (32 C. J. pp. 67, 68.)

At this point, attention should be directed to other facts of the case indicative of the censurable attithich the plaintiff has taken in connection therewith. On one occasion, the defendant drove his automoong the road in question, accompanied by Antonio Dequiña, headed for the Hacienda "Sañgay." As ad tuba with them, on reaching the gate they were halted by the gatekeeper. The defendant andompanion got off the car and unloaded the tuba in order to follow the passageway across the lands ofacienda "Begoña," through which plaintiff's carabaos passed, until they could reach "Sañgay." Thereune Ankerson, accountant and auditor of the plaintiff, arrived and no sooner he had laid eyes on theontainers than he indignantly kicked them and uttered a blasphemy to both, spilling the contents thereof. efendant protested and asked Ankerson to indemnify him for the value of the tuba which had been waso which Ankerson replied that he would make good what should be paid, and he then and there wrote anded over a note to the defendant for presentation to plaintiff's cashier. The defendant presented the nut this claim was not paid, and instead he was prosecuted for trespass in the justice of the peace cou

Manapla under article 281 of the Revised Penal Code. So absurd and malicious was the charge thatourt, in acquitting the defendant, entered the following order (Exhibit 3):

A peaceful citizen who passes through a private road open to the public does not commit the crimespass. Although the prohibition to the accused to be in a private property should be manifest, if the lattot fenced or uninhabited, the mere fact that the accused is found on the place in question, for a lawurpose, does not constitute the crime of trespass defined and punished under article 281 of the Revenal Code.

The plaintiff did not stop at this; it filed the present action for injunction which, as has been seeothing more than the culmination of a series of affronts which the plaintiff has perpetrated, privately

hrough the courts, against the defendant.



. The exercise of discretion by trial courts in matters injunctive should not be interfered withppellate courts except in cases of manifest abuse.

. . . The court which is to exercise the discretion is the trial court and not the appellate court. The acf the court may be reviewed on appeal of error in case of a clear abuse of discretion, but not otherwise, rdinarily mandamus will not lie to control such discretion. (32 C. J., sec. 11, p. 33.)

True, the rule has particular application to preliminary injunctions, but the rule should not be otherwith respect to permanent injunctions especially where, as in this case, the trial court, after grantingreliminary injunction, set the same aside in its final decision on a careful review of the evidence.

It is undisputed the road in question was constructed by the plaintiff on its own land, and thonnects the central or the "mill site" with the provincial road. We have also the admission that the plai

made this road accessible to the general public, regardless of class or group of persons or entities. Its as been extended to employees and laborers of the plaintiff; and so also to all those who have a minass through it, except that, in cases of motor vehicles, a passage fee of P0.15, each should be paid. Theo contention here that the defendant had refused to pay said tolls whenever he wanted to drive his car ahe road in question.

We, therefore, have the case of an easement of way voluntarily constituted in favor of a commuivil Code articles 531 and 594 read:

ART. 531. Easements may also be established for the benefit of one or more persons or ommunity to whom the encumbered estate does not belong.

x x x x x x x x

ART. 594. The owner of an estate may burden it with such easements as he may deem fit, and in smanner and form as he may consider desirable, provided he does not violate the law or public order.

There is nothing in the constitution of this easement in violation of law or public order, except perhhat the right to open roads and charge passage fees therefor i the State's by right of sovereignty and maye taken over by a private individual without the requisite permit. This, however, would affect the right ofaintiff to charge tolls, but not that of the defendant or of any other person to make use of the easement.

As may be seen from the language of article 594, in cases of voluntary easement, the owner is gmple liberty to establish them: "as he may deem fit, and in such manner and form as he may consesirable." The plaintiff "considered it desirable" to open this road to the public in general, without impony condition save the payment of a fifteen-centavo toll by motor vehicles, and it may not now go back onnd deny the existence of an easement. Voluntary easements under article 594 are not contractual in nathey constitute the act of the owner. If he exacts any condition, like the payment of a certain indemnity forse of the easement, any person who is willing to pay it may make use of the easement. If the contention

made that a contract is necessary, it may be stated that a contract exits from the time all those who desirmake use of the easement are disposed to pay the required indemnity.



The plaintiff contends that the easement of way is intermittent in nature and can only be acquirertue of a title under article 539. The defendant, however, does not lay claim to it by prescription. The titl

his case consists in the fact that the plaintiff has offered the use of this road to the general public uayment of a certain sum as passage fee in case of motor vehicles.

The cases of Roman Catholic Archbishop of Manila vs. Roxas (22 Phil., 450), and Cuaycongenedicto (37 Phil., 781), are not controlling, as there the attempt was to establish that the right toasement of way had been acquired by prescription. Here defendant's contention is, that while the roauestion remains open to the public, he has a right to its use upon paying the passage fees required byaintiff. Indeed the latter may close it at its pleasure, as no period has been fixed when the easement

oluntarily constituted, but while the road is thrown open, the plaintiff may not capriciously excludeefendant from its use.

Furthermore, plaintiff's evidence discloses the existence of a forcible right of way in favor of the ownd occupants of the Hacienda "Sañgay" under the Civil Code, article 564, because, according to svidence, those living in Hacienda "Sañgay" have no access to the provincial road except thru the roauestion. Santiago Plagata, principal witness of the plaintiff, testified thus:

Emerging from the provincial road, the defendant has necessarily to pass through this private rhere the gate of which I am the keeper is situated, and then he gets to the Central. (S. t., p. 5.)

Q. To go to the Hacienda "Sañgay," is there any need to cross the "mill site" of the Central? — A. Yes, sir.

Q. And the property of the Central is passed in going to the Hacienda "Sañgay"? — A. Yes, sir.

Q. Is there any other road? — A. I am not sure whether there is another road.

Q. For how long have you been a watchman there? — A. Nine years to date.

Q. And during that period of nine years, can you not state if there is any road which gives access toacienda "Sañgay"? Or the Central has necessarily to be passed? — A. I cannot say because I do not g

hose places.

OURT:

Q. But all the others, except the defendant, who go to the Hacienda "Sañgay" necessarily pass thruentral? — A. They pass thru that road of the Central. (S. t., pp. 16, 17.)

he evidence for the defendant confirms this:

Q. To go there, thru what road did you have to pass? — A. Thru the road of the Central.

Q. And by this road of the Central you mean the Central "North Negros Sugar Co., Inc."? — A. Yes, sir.

Q. By this road of the Central which you mentioned, you mean the road where there is a gate, beginning fhe Central until the provincial road, where the gate is for the purpose of preventing passage? — A. Yeshe very one.



Q. And because of that gate, the Central collects certain toll? — A. Yes, sir. (S. t., pp. 20, 21.)

I

Having been devoted by the plaintiff to the use of the public in general, upon paying the passage equired in the case of motor vehicles, the road in question is charged with a public interest, and whileevoted, the plaintiff may not establish discriminatory exceptions against any private person.

When private property is affected with a public interest, it ceases to be juris privati only; as if a man

ut a street in new building on his own land, it is now no longer bare private interest, but is affected bublic interest. (Lord Chief Justice Hale in his treatise "De Portibus Maris, quoted with approval in Munninois, 94 U. S., 113 [1876], and in Nebbia vs. New York, 291 U. S., 502 [1934].)

The above language was used in the seventeenth century, when exceptions to the individuaegime of ownership were scarcely recognized, and when the ideas on its social function may be said to bheir infancy.

Property does become clothed with a public interest when used in a manner to make it of puonsequence, and affect the community at large. When, therefore, one devotes his property to a use in whhe public has an interest, he, in effect, grants to the public an interest in that use, and must submit toontrolled by the public for the common good, to the extent of the interest he has thus created. He

withdraw his grant by discontinuing the use; but, so long as he maintains the use, he must submit to ontrol. (Munn vs. Illinois, 94 U. S., 113; 24 Law. ed., 77.)

Under our form of government the use of property and the making of contracts are normally matterrivate and not of public concern. The general rule is that both shall be free of governmental interference. either property rights nor contract rights are absolute; nor government cannot exist if the citizen may atse his property to the detriment of his fellows, or exercise his freedom of contract to work them haqually fundamental with the private right is that of the public to regulate in the common interest. . . . ourt has repeatedly sustained curtailment of enjoyment of private property, in the public interest. The ownghts may be subordinated to the needs of other private owners whose pursuits are vital to the paramoterests of the community. (Nebbia vs. New York, 291 U. S., 502, 521, 525; 78 Law. ed., 940, 948.)

Whenever any business or enterprise becomes so closely and intimately related to the public, or to ubstantial part of a community, as to make the welfare of the public, or a substantial part thereof, dependpon the proper conduct of such business, it becomes the subject for the exercise of the regulatory powehe state. (Clarksburg Light & Heat Co. vs. Public Service Commission, P. U. R. 1920A, 639; 84 W. Va., 00 S. E., 551.)

. . . If the service is dedicated to the public or some portion thereof, or to persons within a given ahen any member of the public or of the given class, or any person within the given area, may demand service without discrimination, and the public, or so much of it as has occasion to be served, is entitled toervice of the utility as a matter of right, and not of grace. . . . A corporation becomes a public servorporation, and therefore subject to regulation as a public utility, only when and to the extent thatusiness of such corporation becomes devoted to a public use. . . . (Stoehr vs. Natatorium Co. 200 daho], 132, quoted in 18 A. L. R., 766.)



Tested by the rule laid down in Munn vs. Illinois, it may be conceded that the state has the powemake reasonable regulation of the charges for services rendered by the stockyards company. Its stock y

re situated in one of the gateways of commerce, and so located that they furnish important facilities teeking transportation of cattle. While not a common carrier, nor engaged in any distinctively pmployment, it is doing a work in which the public has an interest, and therefore must be consideredubject to government regulation. (Cotting vs. Godard, 183 U.S., 79; 46 Law. ed., 92.)

Business which, though not public at their inception, may be fairly said to have risen to be such, ave become subject in consequence to some government regulation. They have come to hold suceculiar relation to the public that this is superimposed upon them. In the language of the cases, the owy devoting his business to the public use, in effect, grants the public an interest in that use, and subjmself to public regulation to the extent of that interest, although the property continues to belong torivate owner, and to be entitled to protection accordingly. (Munn vs. Illinois, supra; Spring Valley Waterws. Schottler, 110 U. S., 347; 28 L. ed., 173; 4 Sup. Ct. Rep., 48; People vs. Budd, 117 N. Y., 1, 27; 5 L. R59; 15 Am. St. Rep., 460; 22 N. E., 670; s. c. 143 U. S., 517; 36 L. ed., 247; 4 Inters. Com. Rep., 45; 12 St. Rep., 468; Brass vs. North Dakota, 153 U. S., 391; 38 L. ed., 757; 4 Inters. Com. Rep., 670; 14 Supep., 857; Noble State Bank vs. Haskell, 219 U. S., 104; 55 L. ed., 112; 32 L. R. A. [N. S.], 1062; 31 Supep., 186; Ann. Cas., 1912A, 487; German Alliance Ins. Co. vs. Lewis, 233 U.S., 389; 58 L. ed., 1011; L. 1915C, 1189; 34 Sup. Ct. Rep., 612; VanDyke vs. Geary, 244 U. S., 39, 47; 61 L. ed., 973, 981; 37 St. Rep., 483, Block vs. Hirsh, 256 U. S., 135; 65 L. ed., 865; 16 A. L. R., 165; 41 Sup. Ct. Rep., 458.) Wacking Co. vs. Court of Industrial Relations, 262 U. S. 522; 27 A. L. R., 1280, 1286.)

Under the facts of the instant case, the road in question is of the nature of the so-called "turnpike ror "toll-road." The following authorities are, therefore, in point:

""Toll" is the price of the privilege to travel over that particular highway, and it is a quid pro quo. It rn the principle that he who, receives the toll does or has done something as an equivalent to him who p Every traveler has the right to use the turnpike as any other highway, but he must pay the toll. (City oouis vs. Creen, 7 Mo. App., 468, 476.)

A toll road is a public highway, differing from the ordinary public highways chiefly in this: that the cos construction in the first instance is borne by individuals, or by a corporation, having authority from the so build it, and, further, in the right of the public to use the road after completion, subject only to the paymf toll. (Virginia Cañon Toll Road Co. vs. People, 45 Pac., 396, 399; 22 Colo., 429; 37 L. R. A., 711.)

Toll roads are in a limited sense public roads, and are highways for travel, but we do not regard ts public roads in a just sense, since there is in them a private proprietary right. . . . The private right w

urnpike companies possess in their roads deprives these ways in many essential particulars of the charaf public roads. It seems to us that, strictly speaking, toll roads owned by private corporation, constructed

maintained for the purpose of private gain, are not public roads, although the people have a right to freavel them upon the payment of the toll prescribed by law. They are, of course, public, in a limited sense,ot in such a sense as are the public ways under full control of the state, for public ways, in the strict sere completely under legislative control. (Elliott, Roads & S., p. 5.) (Board of Shelby County Com'rsastetter, 33 N. E., 986, 987; 7 Ind. App., 309.)

It has been suggested during the consideration of the case at bar that the only transportaompanies with motor vehicles who can have an interest in passing over the said road are those which caborers of the central and passengers who transact business with the plaintiff, and not all public ser



motor vehicles with certificates of public convenience, and that the only persons who may have an intereassing over the said road are the laborers of the plaintiff and persons who do business with it andccupants of the 21 houses situated in the Hacienda "Sañgay," and not everyone for personal convenieut even if this were true, the plaintiff having subjected the road in question to public use, conditioned pon the payment of a fifteen-centavo passage fees by motor vehicles, such circumstance would not af

he case at all, because what stamps a public character on a private property, like the road in question, ishe number of persons who may have an interest in its use, but the fact that all those who may desire to us

may do so upon payment of the required indemnity.

. . . The public or private character of the enterprise does not depend, however, upon the numbeersons by whom it is used, but upon whether or not it is open to the use and service of all members ofublic who may require it, to the extent of its capacity; and the fact that only a limited number of persons ave occasion to use it does not make of it a private undertaking if the public generally has a right to sse. . . . (51 C. J., sec. 2, p. 5.)

The test is, not simply how many do actually use them, but how many may have a free and unrestricght in common to use them. If it is free and common to all citizens, then no matter whether it is or is noreat length, for whether it leads to or from a city, village or hamlet, or whether it is much or little used, it public road." (Heninger vs. Peery, 47 S. E., 1013, 1014; 102 Va., 896, quoting Elliott, Roads & S., secs92.)

The circumstance that the road in question does not properly fall within the definition of a public urovided in Act No. 3108, does not divest it to this character:

. . . Whether or not a given business, industry, or service is a public utility does not depend uegislative definition, but upon the nature of the business or service rendered, and an attempt to declaompany or enterprise to be a public utility, where it is inherently not such, is, by virtue of the guaranties ofederal constitution, void wherever it interferes with private rights of property or contract. So a legislaannot by mere fiat or regulatory order convert a private business or enterprise into a public utility, anduestion whether or not a particular company or service is a public utility is a judicial one, and musetermined as such by a court of competent jurisdiction; . . . . (51 C. J., sec. 3, p. 5.)

The road in question being a public utility, or, to be more exact, a private property affected with a puterest, is not lawful to make arbitrary exceptions with respect to its use and enjoyment.

Duty to Serve Without Discrimination. — A public utility is obligated by the nature of its businesurnish its service or commodity to the general public, or that part of the public which it has undertakeerve, without arbitrary discrimination, and it must, to the extent of its capacity, serve all who apply, on eqerms and without distinction, so far as they are in the same class and similarly situated. Accordingly, a u

must act toward all members of the public impartially, and treat all alike; and it cannot arbitrarily selectersons for whom it will perform its service or furnish its commodity, nor refuse to one a favor or privilegas extended to another, since the term "public utility" precludes the idea of service which is private inature and is not to be obtained by the public. Such duties arise from the public nature of a utility, tatutes providing affirmatively therefor are merely declaratory of the common law. (51 C. J., sec. 16, p. 7.

The circumstance that the plaintiff is not the holder of a franchise or certificate of public conveniencehat it is a company devoted principally to the manufacturer of sugar and not to the business of public ser



r that the state has not as yet assumed control or jurisdiction over the operation of the road in questionhe plaintiff, does not preclude the idea that the said road is a public utility.

The touchstone of public interest in any business, its practices and charges, clearly is notnjoyment of any franchise from the state. (Munn vs. Illinois [94 U. S., 113; 24 L. ed., 77, supra.) (Nebbiaew York, supra.)

The fact that a corporation may not have been given power to engage in the business of a public unot conclusive that it is not in fact acting as a public utility and to be treated as such. (51 C. J., p. 5.)

The question whether or not it is such does not necessarily depend upon whether it has submitteefused submit to the regulatory jurisdiction of the state, nor upon whether or not the state has asssumed control and jurisdiction, or has failed or refused so to do. (51 C. J., p. 6.)

The fact that a corporation does other business in addition to rendering a public service doesrevent it from being a public utility, and subject to regulation as such, as to its public business. (51 C. J.)

The term "public utility" sometimes is used to mean the physical property or plant being used inervice of the public. (51 C. J., p. 6.)

There are . . . decisions in which the incidental service has been held to public regulation and conRe Commonwealth Min. & Mill. Co. [1915; Ariz.], P. U. R., 1915B, 536; Nevada, C. & O. Teleg. & Teleph.s. Red River Lumber Co. [1920; Cal.], P. U. R., 1920E, 625; Sandpoint Water & Light Co. vs. Humbumber Co. [1918; Idaho], P. U. R., 1918B, 535; Public Service Commission vs. Valley Mercantile Co. [1

Mont.], P. U. R., 1921D, 803; Public Service Commission vs. J. J. Rogers Co. [1918], 184 App. Div., 705. R., 1919A, 876; 172 N. Y. Supp., 498; Wingrove vs. Public Service Commission [1914], 74 W. Va., 19. A. 1918A, 210; 81 S. E., 734; Chambers vs. Spruce Lighting Co. [1918], 81 W. Va., 714; 95 S. E. 192.lso Hoff vs. Montgomery [1916; Cal.], P. U. R., 1916D, 880; Re Producers Warehouse [1919; Cal.], P. U920A, 919; Ticer vs. Phillips [1920; Cal.], P. U. R., 1920E, 582; Re Ontario Invest. Co. [1921; Cal.], P. U922A, 181; Bassett vs. Francestown Water Co. [1916; N. H.], P. U. R., 1916B, 815; Re Northern New Yower Co. [1915; N. Y., 2d Dist.], P. U. R., 1915B, 70.) (Annotation in 18 A. L. R., 766, 767.)

The point is made that, there being no contract between the plaintiff and the public interested in the f the road in question it should be understood that such use has been by the mere tolerance of the plainnd that said property has not been constituted into a public utility. The contention is devoid of merit.

When private property is devoted to public use in the business of a public utility, certain reciprocal rind duties are raised by implication of law between the utility and the public it undertakes to serve, andontract between them is necessary to give rise thereto. . . . (51 C. J., sec. 12 p. 6.)

Wherefore the judgment appealed from is affirmed, with costs to the plaintiff.

bad Santos, J., concurs.

nseparability of easement

.R. No. L-37409 May 23, 1988



ICOLAS VALISNO, plaintiff-appellant,s.ELIPE ADRIANO, defendant-appellee.

Honorio Valisno Garcia I for plaintiff-appelant.

elipe K Medina for defendant-appellee.

RIÑO-AQUINO, J.:

his case was certified to this Court by the Court of Appeals in a resolution dated August 10, 1973, the sue being a question of law and beyond its jurisdiction. to decide.

dmitted by the parties in their pleading and established during the trial on the merits are the followmaterial facts:

n June 20, 1960, 'the plaintiff-appellant file against the defendant-appellee an action for damages dockes Civil Case No. 3472 in the Court of First Instance of Nueva Ecija. The complaint alleged that the plaintihe absolute owner and actual possessor of a 557,949-square-meter parcel of land in La Fuente, Santa Rueva Ecija, and more particularly described in his Transfer Certificate of Title No. NT-16281. The plaippellant Valisno bought the land from the defendant-appellees sister, Honorata Adriano Francisco, on J,1959. (Deed of Absolute Sale, Exh. "A".) The land which is planted with watermelon, peanuts, c

obacco, and other vegetables adjoins that of the appellee Felipe Adriano on the bank of the Pampaiver. Both parcels of land had been inherited by Honorata Adriano Francisco and her brother, Fedriano, from their father, Eladio Adriano. At the time of the sale of the land to Valisno, the land was irrigay water from the Pampanga River through a canal about seventy (70) meters long, traversing the appell

and.

n December 16, 1959, the appellee levelled a portion of the irrigation canal so that the appellant eprived of the irrigation water and prevented from cultivating his 57-hectare land.

he appellant filed in the Bureau of Public Works and Communications a complaint for deprivation of wghts. A decision was rendered on March 22, 1960 ordering Adriano to reconstruct the irrigation caotherwise judicial action shall be taken against him under the provisions of Section 47 of Act 2152 rigation Act), as amended." Instead of restoring the irrigation canal, the appellee asked for a reinvestigaf the case by the Bureau of Public Works and Communications. A reinvestigation was granted.

n the meantime, plaintiff Valisno rebuilt the irrigation canal at his own expense because his need for waterigate his watermelon fields was urgent.

n June 20, 1960, he filed a complaint for damages in the Court of First Instance (now Regional Trial Cof Nueva Ecija (Civil Case No. 3472) claiming that he suffered damages amounting to P8,000 when he fao plant his fields that year (1960) for lack of irrigation water, P800 to reconstruct the canal on defenddriano's land, and P1,500 for attorney's fees and the costs of suit.

n October 25, 1961, the Secretary of Public Works and Communications reversed the Bureau's decisiosuing a final resolution dismissing Valisno's complaint. The Secretary held that Eladio Adriano's water rihich had been granted in 1923 ceased to be enjoyed by him in 1936 or 1937, when his irrigation c



ollapsed. His non-use of the water right since then for a period of more than five years extinguished the gy operation of law, hence the water rights did not form part of his hereditary estate which his heirs partitiomong themselves. Valisno, as vendee of the land which Honorata received from her father's estate didcquire any water rights with the land purchased.

n his answer to the damage suit (Civil Case No. 3472), the defendant Felipe Adriano admitted thaevelled the irrigation canal on his land, but he averred: that neither his late father nor his sister Honoossessed water rights for the land which she sold to the appellant; that he (the appellee) applied for wghts for his land in 1956 and obtained the same in 1958; and that he had a perfect right to level his lands own use because he merely allowed his sister to use his water rights when she still owned the adjac

and. He set up a counterclaim for P3,000 as damages incurred by him in levelling the land on whichppellant dug an irrigation canal, P2,000 as actual damages, P3,000 as attorney's fees, and expenseigation.

n a decision dated April 21, 1966, the trial court held that the plaintiff had no right to pass throughefendant's land to draw water from the Pampanga River. It pointed out that under Section 4 of the Irrigaaw, controversies between persons claiming a right to water from a stream are within the jurisdiction ofecretary of Public Works and his decision on the matter is final, unless an appeal is taken to the proper cithin thirty days. The court may not pass upon the validity of the decision of the Public Works Secreollaterally. Furthermore, there was nothing in the plaintiff 's evidence to show that the resolution wasalid. It dismissed the complaint and counterclaim.

he plaintiff's motion for reconsideration of the decision was denied by the trial court. The plaintiff appealehe Court of Appeals which certified the case to Us upon the legal question of whether the provisions ofrigation Act (Act No. 2152) or those of the Civil Code should apply to this case.

he plaintiff-appellant argues that while the trial court correctly held that the Secretary of Public Works egally decide who between the parties is entitled to apply for water rights under the Irrigation Act, it erreuling that the Secretary has authority to hear and decide the plaintiff 's claim for damages for the defendaolation of his (plaintiff's) right to continue to enjoy the easement of aqueduct or water throughefendant's land under Articles 642, 643, and 646 of the Civil Code, which provide:

rticle 642. Any person who may wish to use upon his own estate any water of which he can dispose save the right to make it flow through the intervening estates, with the obligation to indemnify their ownersell as the owners of the lower estates upon which the waters may filter or descend.

rticle 643. One desiring to make use of the right granted inthe preceding article is obliged:

) To prove that he can dispose of the water and that it is sufficient for the use for which it is intended;

2) To show that the proposed right of way is the most convenient and the least onerous to third persons;

3) To indemnify the owner of the servient estate in the manner determined by the laws and regulations.

rticle 646. For legal purposes, the easement of aqueduct shall be considered as continuous and apparven though the flow of the water may not be continuous, or its use depends upon the needs of the domistate, or upon a schedule of alternate days or hours.



he existence of the irrigation canal on defendant's land for the passage of water from the Pampanga Riveonorata's land prior to and at the time of the sale of Honorata's land to the plaintiff was equivalent to a

or the vendee of the land to continue using it as provided in Article 624 of the Civil Code:

rticle 624. The existence of an apparent sign of easement between two estates, established or maintay the owner of both shall be considered, should either of them be alienated, as a title in order thaasement may continue actively and passively, unless at the time, theownership of the two estates is dividhe contrary should be provided in the title of conveyance of either of them, or the sign aforesaid shouldemoved before the execution of the deed.

his provision shall also apply in case of the division of a thing owned in common on by two or more persCivil Code)

his provision was lifted from Article 122 of the Spanish Law of Waters which provided:

rticle 122. Whenever a tract of irrigated land which previously received its waters from a single poivided through inheritance, sale or by virtue of some other title, between two or more owners, the owne

he higher estates are under obligation to give free passage to the water as an easement of conduit forrigation of the lower estates, and without right to any compensation therefore unless otherwise stipulatehe deed of conveyance. (Art. 122, Spanish Law of Waters of August 3, 1866.)

o enlightened concept of ownership can shut out the Idea of restrictions thereon, such as easemebsolute and unlimited dominion is unthinkable, inasmuch as the proper enjoyment of property requ

mutual service and forbearance among adjoining estates (Amor vs. Florentino, 74 Phil. 403).

s indicated in the decision dated March 22, 1960 of the Bureau of Works "the principal issue involved inase falls under the subject of servitude of waters which are governed by Article 648 of the new Civil Cnd the suppletory laws mentioned in the cases of Lunod vs. Meneses 11 Phil. 128) and Osmena vs. CamC.A. 380 62773) which are the irrigation law and the Spanish Law of Waters of August 3, 1866, specificrticle 122 thereof.

he deed of sale in favor of Valisno included the "conveyance and transfer of the water rights mprovements" appurtenant to Honorata Adriano's property. By the terms of the Deed of Absolute Sale,endor Honorata Adriano Francisco sold, ceded, conveyed and transferred to Dr. Nicolas Valisno all "rigtle, interest and participations over the parcel of land above- described, together with one Berkely ModRF Centrifugal Pump G" suction, 6" discharge 500-1500 GPM, with Serial No. 5415812 and one (1) seuction pipe and discharge of pipe with elbow, nipples, flanges and footvalves," and the water rights and sther improvements appertaining to the property subject of this sale. According to the appellant, the wght was the primary consideration for his purchase of Honorata's property, for without it the property we unproductive.

Water rights, such as the right to use a drainage ditch for irrigation purposes, which are appurtenant arcel of land, pass with the conveyance of the land, although not specifically mentioned in the conveyahe purchaser's easement of necessity in a water ditch running across the grantor's land cannot be defeaven if the water is supplied by a third person (Watson vs. French, 112 Me 371 19 C.J. 868-897). The hat an easement by grant may also have qualified as an easement of necessity does detract fromermanency as property right, which survives the determination of the necessity (Benedicto vs. CA, 25 SC45).<äre||anº•1àw>



s an easement of waters in favor of the appellant has been established, he is entitled to enjoy it free fbstruction, disturbance or wrongful interference (19 CJ 984), such as the appellee's act of levelling rigation canal to deprive him of the use of water from the Pampanga River.

WHEREFORE, the appealed decision is set aside, and a new one is entered ordering the appellee to ghe appellant continued and unimpeded use of the irrigation ditch traversing his land in order to obtain wom the Pampanga River to irrigate appellant's land. Let the records of this case be remanded to the couuo for the reception of evidence on the appellant's claim for damages.

O ORDERED.

xistence of an apparent sign of easement

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

DUARDO C. TAÑEDO, petitioner,s.ON. JUANITO A. BERNAD, Presiding Judge of the Regional Trial Court, 7th Judicial Region, BraXI, Cebu City; Spouses ROMEO SIM and PACITA S. SIM; and Spouses ANTONIO CARDENAS

MAE LINDA CARDENAS, respondents.

Numeriano F. Capangpangan for petitioner.

Meinrado P. Parades for private respondents.

ADILLA, J.:

his is a petition for review on certiorari of the Order issued by the respondent judge, Hon. Juanita A. Bern 5 December 1983, which dismissed the complaint for legal redemption filed by the petitioner in Civil C

o. CEB-994 of the Regional Trial Court of Cebu, and the Order of the same respondent judge, datedanuary 1984, which denied petitioner's motion for reconsideration.

he facts, in brief, are as follows:

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

uilding on Lot 7501-A also stands on Lot 7501-B.

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

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



ntonio Cardenas further agreed that he would sell Lot 7501-B only to Eduardo Tañedo in case he shecide to sell it, as the septic tank in Lot 7501-B services Lot 7501-A and the apartment building on Lot 75has a part standing on Lot 7501-B. This was confirmed in a letter, dated 26 February 1982, wherein Antardenas asked Tañedo not to deduct the mortgage loan of P10,000.00 from the purchase price of Lot 75"because as we have previously agreed, I will sell to you Lot 7501-B." 3

ntonio Cardenas, however, sold Lot 7501-B to the herein respondent spouses Romeo and Pacita Sipon learning of the sale, Eduardo Tañedo offered to redeem the property from Romeo Sim. But the la

efused. Instead, Romeo Sim blocked the sewage pipe connecting the building of Eduardo Tañedo buiot 7501-A, to the septic tank in Lot 7501-B. He also asked Tañedo to remove that portion of his builnroaching on Lot 7501-B. As a result, Eduardo Tañedo, invoking the provisions of Art. 1622 of the Code, filed an action for legal redemption and damages, with a prayer for the issuance of a writ of preliminjunction, before the Regional Trial Court of Cebu, docketed therein as Civil Case No. CEB-994, against

pouses Romeo and Pacita Sim, Antonio Cardenas and his wife Mae Linda Cardenas, the Register of Def Cebu City, and Banco Cebuano, Cebu City Development Bank. 5

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

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

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

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

cting upon these motions and other incidental motions, the respondent judge issued the questioned ordeDecember 1983 dismissing the complaint and cross-claim. 10

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

ence, the present recourse by petitioner Tanedo.

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

n the instant case, it cannot be denied that petitioner Tanedo cannot redeem the entire Lot 7501-B frompouses Romeo and Pacita Sim pursuant to the provisions of Art. 1622 Romeo and Pacita Sim pursuan



he provisions of Art. 1622 of the Civil Code, since the lot sought to be redeemed, has an area of 612 squmeters which is much bigger, area-wise, than the lot owned by petitioner Tañedo. However, the petitioeeks to purchase only that small portion of Lot 7501-B occupied by his apartment building, becausepouses Romeo and Pacita Sim had told him to remove that portion of his building which enroaches upon501-B. Whether or not this is possible should have been determined at the pre-trial stage or trial on

merits.

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

. That by written agreement, plaintiff and defendant spouses Antonio Cardenas and Mae Linda Cardegreed that in the event they decide to sell the adjacent Lot No. 7501-B of the subdivision plan (LRC) P3638, a portion of Lot No. 7501 of the cadastral survey of Cebu, LRC (GLRC) Cad. Record No. 94tuated in the City of Cebu, containing an area of SIX HUNDRED TWELVE (612) Square meters mor

ess which lot is adjacent to Lot No. 7501-A of the plaintiff and where part of the plaintiffs apartmentanding on, the same should be sold to the plaintiff, but far from compliance of the written agreemefendant spouses Antonio Cardenas and Mae Linda Cardenas sureptiously [sic] sold the aforestated Lot7501-B- to the defendant spouses, Romeo Sim and Pacita Sim on July 23, 1982 as per Deed of Sotarized by Notary Public, Jorge S. Omega and entered in his Notarial Register as Doc. No. 462; Page 94- Book No. 11, Series of 1982;

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

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

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

LLEGATIONS as to written agreement is ADMITTED, but, specifically denies that herein defendUREPTIOUSLY [sic] SOLD the lot in question to the other defendant Spouses Sim the truth is, thaterein defendants [sic] was required to execute the Deed of Sale described in this paragraph 3 as securityhe personal loans and other forms of indebtedness incurred from the Spouses Sims but never aonveyance to transfer ownership; 15

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

Moreover, the finding of the trial court that petitioner Tañedo's right to continue to use the septic tank, erecn Lot 7501-B, ceased upon the subdivision of the land and its subsequent sale to different owners who



ot have the same interest, 16 also appears to be contrary to law. Article 631 of the Civil Code enumeratesrounds for the extinguishment of an easement. Said article provides:

rt. 631. Easements are extinguished:

) 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 fhe day on which they ceased to be used; and, with respect to continuous easements, from the day on w

n 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 sevive if the subsequent condition of the estates or either of them should again permit its use, unless whe use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisionhe preceding number;

4) By the expiration of the term or the fulfillment of the conditions, if the easement is temporary or conditio

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.

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

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

n the instant case, no statement abolishing or extinguishing the easement of drainage was mentioned ineed of sale of Lot 7501-A to Eduardo Tañedo. Nor did Antonio Cardenas stop the use of the drain pipe eptic tank by the occupants of Lot 7501-A before he sold said lot to Eduardo Tafiedo. Hence, the use ofeptic tank is continued by operation of law. Accordingly, the spouses Romeo and Pacita Sim the new ownf 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 judgnother one designated in his place is directed to proceed with the trial of this case on the merits. With cogainst private respondents.

O ORDERED.



ights and obligations of the owners of dominant and servient estate

.R. No. L-23810 December 18, 1925

ATALINO VALDERRAMA, plaintiff-appellee,s.HE NORTH NEGROS SUGAR CO., INC., defendant-appellant.------------------------.R. No. L-23811 December 18, 1925

MILIO RODRIGUEZ, plaintiff-appellee,s.HE NORTH NEGROS SUGAR CO., INC., defendant-appellant.------------------------.R. No. L-23812 December 18, 1925ANTOS URRA ET AL., plaintiffs-appellees,s.HE NORTH NEGROS SUGAR CO., INC., defendant-appellant.oss, Lawrence & Selph and Antonio T. Carrascoso, Jr., for appelamus & Delgado for appellees.

ILLAMOR, J.:

s appears from the record, on November 17, 1916, several hacienda owners Manapla, Occidental Nentered into a contract with Miguel J. Osorio, known as milling contract, wherein Osorio agreed to insta

Manapla a sugar central of a minimum capacity of 300 tons, for grinding and milling all the sugar cane torown by the hacienda owners, who in turn bound themselves to furnish the central with all the cane

might produce in their estates for thirty years from the execution of the contract, all in accordance withonditions specified therein.

ater on, the defendant North Negros Sugar Co., Inc., acquired the rights and interest of Miguel J. Osorhe milling contract aforesaid.

wo years thereafter, that is to say, on January 29, 1919 Catalino Valderrama (case No. 23810) andebruary 1st of the same year, Emilio Rodriguez (case No. 23811) and Santos Urra, Ignacio Benito Huadolfo Huarte and Pedro Auzmendi (case No. 23812) made with the appellant other milling contracts idenith the first one of November 17, 1916, with some new conditions which are specified in detail inforesaid documents Exhibit A and 1. Santos Urra thereafter transferred to Pedro Auzmendi, and the latteorenzo Echarri, their interest in the milling contract executed by them.

n view of the fact that the hacienda owners, who were up to that time customers of the central, couldurnish sufficient cane for milling, as required by the capacity of said central, the defendant made other miontracts with various hacienda owners of Cadiz, Occidental Negros, in order to obtain sufficient canustain the central; and this gave rise to the plaintiffs filing their complaint, alleging that the easement of which each of them has established in his respective hacienda, was only for the transportation through eacienda of the sugar cane of the owner thereof, while the defendant maintains that it had the righansport to its central upon the railroad passing through the haciendas of the plaintiffs, not only the sane harvested in said haciendas, but also that of the hacienda owners of Cadiz, Occidental Negros.



he plaintiffs, in separate complaints, prayed the Court of First Instance of Occidental Negros to pronoudgment, holding that the defendant had no right, under the easement or otherwise, to cause its locomotnd wagons to run across the estates of the plaintiffs for the purpose of transporting sugar cane of griculturist of Cadiz, Occidental Negros.

he defendant answered the amended complaints, admitting some allegations thereof and denying othnd as special defense, it alleged that the plaintiffs respectively granted the defendant, for the period of ears from the date of the aforesaid contracts, an easement of way 7 meters wide upon the lands ofaintiffs for the construction and operation of a railroad for the transportation of sugar cane; that asement of way was established without any restriction whatsoever, as regards the ownership of the cane transported over the said railroad; that said contract was then in full force and effect and had never bnnulled or modified.

fter hearing the three cases, the trial court entered one single judgment for all of them, holding thatefendant had no right to pass through the lands of the plaintiffs described in their amended complaints

he transportation of sugar cane not grown from any of the haciendas of the plaintiffs. From this judgmentefendant appealed.

n view of the similarity of the facts and questions raised in the three complaints, they will hereinonsidered jointly, as was done by the trail court.

he parties agree that the only question herein involved is as to the extent of the easement of way whichaintiffs have established in their respective haciendas in favor of the defendant, and therefore it is impo

o know the terms in which such easement of way was established.

n the contract executed by the plaintiff Valderrama with the defendant on January 29, 1919, there appe6th. That in order to have the obligations herein entered into by Mr. Valderrama duly registered, in regarhe rural estates belonging to him and which are described hereinafter, an easement of way 7 meter wide or the period of 50 years from the date hereof is hereby created in favor of the 'North Negros Sugar Co., Iupon his property hereinafter described, at such place as said corporation may see fit for the constructiorailroad ."

nd in the contract of the plaintiff Rodriguez of February 1, 1919, there also appears" "6th. That in ordeave the obligations herein entered into by Mr. Emilio Rodriguez duly registered, in regard to the rural estaelongings to him which are herein described, an easement of way 7 meters wide and for the period oears from the date hereof is hereby established by said Mr. Emilio Rodriguez in favor of the 'North Negugar Co., Inc.,' upon his estate aforementioned, at such place as said corporation may see fit foronstruction of a railroad ."

nd lastly in the contract of Santos Urra and others of February 1, 1919, there likewise appears: "7th. Thrder to have the obligations herein entered into by Santos Urra, Ignacio Benito Huarte, Adolfo Huarte edro Auzmendi duly registered in regard to their estate hereinafter described, an easement of way 7 me

wide and for the period of 50 years from the date hereof is hereby established in favor of the 'North Negugar Co., Inc.,' upon their estate hereinafter described, at such place as said corporation may see fit foronstruction of a railroad ."lawphi1.net

s may be seen, the question raided depends upon the interpretation to be given to the clause ofontracts of the plaintiffs above quoted. The plaintiffs allege that the aforesaid clause is ambiguous,



nder the first exception of section 285 of the Code of Civil Procedure, they have the right to introdxtraneous evidence to explain the true intent of the parties. And it is ambiguous, according to them, becamay applied to the transportation of the cane of the plaintiffs or other producers, which is contrary totent of the contracting parties. If the above quoted clause is ambiguous, the plaintiffs have the rightroduce circumstantial evidence to explain the true intent of the parties, but it our opinion said clause is cnough in its terms to express what the parties have intended to agree upon. Had the clause mentioned n "easement of way," there might be a doubt as to whether or not the easement of way is for pedestriorsemen or carriages. But when the clause says: "easement of way 7 meters wide for the period of 50 yor the construction of the railroad," there can be no doubt about what the contracting parties have agrpon, to wit, that the plaintiffs have created upon their respective haciendas at a suitable place an easemf way 7 meters wide and for a period of fifty years, in order to enable the defendant to build and maintaailroad for the transportation of sugar cane to the central. It is clear that the cane of the plaintiffs was toansported upon the railroad to the central; but to limit the use of the road exclusively to the cane ofaintiffs and within their respective haciendas would make the contract in question ineffective, except a

he hacienda which is contiguous or nearest to the central.

he object of such a milling contract, from which arises the easement in question, is undoubtedly to obmutual benefit to the procedures of sugar cane and the corporation putting up the central. It is only by tahis principal idea into account that it may be conceived why the parties had come to an agreement to assuch obligation as are set forth in the milling contract. But the contract could not produce any benefit toarties, if the explanation given by the plaintiffs would be admitted, as to their intention in creatingforesaid easement of way upon their respective haciendas, that it was only in favor of their respecaciendas. Such an explanation is inadmissible because it is contrary to the object of the milling contract.

is against the nature of the easement to pretend that it was established in favor of the servient estaecause it is a well settled rule that things serve their owner by reason of ownership and not by reasoasement.

his is a case of an easement for the benefit of a corporation, voluntarily created by the plaintiffs upon espective estates for the construction of a railroad connecting said estates with the central of the defendnce the road is constructed, the easement is apparent because it is continuously exposed to view by

ails which reveal the use and enjoyment of said easement. It is evident, as above stated, that the cane ofaintiffs if to be transported to the central by means of wagons passing upon the railroad; but asasement was created for the benefit of the corporation, owner of the central, it may cause its wagons to ppon the road as many times as it may deem fit, according to the needs of the central. If the plaintiffs doroduce sufficient cane to cover the capacity of the central, it would be unjust to impose upon the defenorporation the burden of maintaining a central, prohibiting it to obtain from another source sufficient cith which to maintain its business; this is specially true here, because in the milling contract with aintiffs, there is nothing to prohibit the defendant from making milling contracts with other planters, btain in that way all cane necessary to cover the capacity of the central.

nother reason advanced by the appellees in support of their theory is that by transporting upon the rhrough the servient estates, the cane of the planters of Cadiz, it would alter the easement, making it murdensome. It is true that the owner of the dominant estate, in making on the servient estate the necessorks for the use and preservation of the easement, cannot alter it, nor make it more burdensome (art. 54

he Civil Code); but this does not mean that the defendant cannot transport in the wagons passing uponailroad other cane that of the plaintiffs. What is prohibited by the legal provision above cited is thatefendant, in excavations or building materials outside of the area of 7 meters, because in the first case,



asement will be altered, and in the second it would become more burdensome. But nothing of the appens when the defendant transport on the railroad, crossing the servient estates, the cane of the planf Cadiz; the railroad continues to occupy the same area on the servient estates, and the incumbraesulting from the easement continues to be the same, whether the tractors traverse the line 10, 20 omes a day transporting cane for the central. lawphi1.net

urthermore, the record shows a circumstance indicating that at the time of the execution of the miontracts above referred to, there was no intention of the part of the contracting parties to limit the use ofailroad to the transportation of cane grown by the plaintiffs in their respective haciendas, and that is becahile the duration of the milling contracts is fixed at thirty years, that of the easement is at fifty. So that

he end of thirty years the plaintiffs or their successors should no longer desire to furnish canes for millinhe central of the defendant, the latter shall still have the right to the easement for the remaining periodithout transporting on the railroad any cane for the central. An interpretation of the clause in question lea

o such a result is untenable.

or the foregoing, we are of the opinion that the trial court erred in finding that the appellant couldansport on its railroad passing through the haciendas of the appellees, where it has an easement of stablished in its favor, the cane grown in the haciendas of the procedures of Cadiz, Occidental Negros, t

milled in the central of the appellant. And, therefore, the judgment appealed from must be reversed andppellant absolved, as it is hereby absolved, from the complaint, without special pronouncement as to coo ordered.

vanceña. C. J., Street, Malcolm, Ostrand, Johns, Romualdez, and Villa-Real, JJ., concur.

Modes of extinguishment

.R. No. 90596 April 8, 1991OLID MANILA CORPORATION, petitioner,s.IO HONG TRADING CO., INC. and COURT OF APPEALS, respondents.algos & Perez for petitioner.lfredo G. de Guzman for private respondent.

ARMIENTO, J.:p

his is an appeal filed by way of a petition for review on certiorari under Rule 45 of the Rules of Court.

he petitioner raises two questions: (1) whether or not the Court of Appeals 1 erred in reversing the trial chich had rendered summary judgment; and (2) whether or not it erred in holding that an easement had bxtinguished by merger.

We rule for the petitioner on both counts.

appears that the petitioner is the owner of a parcel of land located in Ermita, Manila, covered by Tranertificate of Title No. 157750 of the Register of Deeds of Manila. The same lies in the vicinity of anoarcel, registered in the name of the private respondent corporation under Transfer Certificate of Title28784.



he private respondent's title came from a prior owner, and in their deed of sale, the parties thereto resers an easement of way:

. .a portion thereof measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had bonverted into a private alley for the benefit of neighboring estates, this being duly annotated at the bache covering transfer Certificate of title per regulations of the Office of the City Engineer of Manila and thathree meterwide portion of said parcel along the Pasig River, with an area of ONE HUNDRED SEVENINE (179) SQUARE METERS, more or less, had actually been expropriated by the City Government, eveloped pursuant to the beautification drive of the Metro Manila Governor. (p. 3, Record). 2

s a consequence, an annotation was entered in the private respondent's title, as follows:

ntry No. 7712/T-5000 –– CONSTRUCTION OF PRIVATE ALLEY –– It is hereby made of record thonstruction of private alley has been undertaken on the lot covered by this title from Concepcion Street toterior of the aforesaid property with the plan and specification duly approved by the City Engineer subje

he following conditions to wit: (1) That the private alley shall be at least three (3) meters in width; (2) Thatley shall not be closed so long as there's a building exists thereon (sic ); (3) That the alley shall be ope

he sky; (4) That the owner of the lot on which this private alley has been constituted shall construct the ley and provide same with concrete canals as per specification of the City Engineer; (5) That

maintenance and upkeep of the alley shall be at the expense of the registered owner; (6) That the alley semain open at all times, and no obstructions whatsoever shall be placed thereon; (7) That the owner ofot on which the alley has been constructed shall allow the public to use the same, and allow the City to

pes for sewer and drainage purposes, and shall not act (sic ) for any indemnity for the use thereof; andhat he shall impose upon the vendee or new owner of the property the conditions abovementioned; oonditions set forth in Doc. No. 4236, Page No. 11, Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila. 3

he petitioner claims that ever since, it had (as well as other residents of neighboring estates) made ushe above private alley and maintained and contributed to its upkeep, until sometime in 1983, when, and s protests, the private respondent constructed steel gates that precluded unhampered use.

n December 6, 1984, the petitioner commenced suit for injunction against the private respondent, to hhe gates removed and to allow full access to the easement.

he court a quo shortly issued ex parte an order directing the private respondent to open the gaubsequently, the latter moved to have the order lifted, on the grounds that: (1) the easement referred to een extinguished by merger in the same person of the dominant and servient estates upon the purchashe property from its former owner; (2) the petitioner has another adequate outlet; (3) the petitioner hasaid any indemnity therefor; and (4) the petitioner has not shown that the right-of-way lies at the point lerejudicial to the servient estate.

he private respondent's opposition notwithstanding, the trial court issued a "temporary writ of prelimijunction to continue up to the final termination of the case upon its merits upon the posting of a P5,00ond by the plaintiff. 4 (the petitioner herein).

hereafter, the respondent corporation answered and reiterated its above defenses.

n April 15, 1986, the petitioner moved for summary judgment and the court a quo ruled on the samollows:



n view of the foregoing, this Court finds it unnecessary to try this case on the merit ( sic ) and hereby ressic ) to grant the plaintiffs motion for summary judgment. (pp. 15-107, Record). 5

n January 19, 1987, the trial court rendered judgment against the private respondent, the dispositive porf which states:

WHEREFORE, judgment is hereby rendered making permanent the temporary mandatory injunction, thateen issued against the defendant, and for the defendant to pay the plaintiff the costs of this suit.

he defendant's counterclaim against the plaintiff is hereby dismissed, for lack of merit. (Summary Judgm. 6). 6

he 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 cancellatiohe annotation in question. The court granted cancellation, for which the petitioner instituted CA-G.R. SP3421 of the respondent Court of Appeals which ordered the restoration of the annotation "without prejuo] the final outcome of 7 the private respondent's own appeal (subject of this petition).

n reversing the trial court which had, as earlier mentioned, rendered summary judgment, the responourt of Appeals held that the summary judgment was improper and that the lower court erroneously igno

he defense set up by the private respondent that the easement in question had been extinguished. Accordo the Appellate Court, an easement is a mere limitation on ownership and that it does not impair the privespondent's title, and that since the private respondent had acquired title to the property, "merger" brobout an extinguishment of the easement.

he petitioner submits that the respondent Court of Appeals erred, because the very deed of sale execetween the private respondent and the previous owner of the property "excluded" the alley in question, hat in any event, the intent of the parties was to retain the "alley" as an easement notwithstanding the sale

s already stated at the outset, the Court finds merit in the petition.

here is no question that an easement, as described in the deed of sale executed between the privespondent and the seller, had been constituted on the private respondent's property, and has been in nnotated at the back of Transfer Certificate of Title No. 128784. Specifically, the same charged the priespondent as follows: "(6) That the alley shall remain open at all times, and no obstructions whatsoever se placed thereon; (7) That the owner of the lot on which the alley has been constructed shall allow the puo use the same, and allow the City to lay pipes for sewer and drainage purposes, and shall not [ask] for demnity for the use thereof. . ." 8 Its act, therefore, of erecting steel gates across the alley was in defianc

hese conditions and a violation of the deed of sale, and, of course, the servitude of way.

he Court then is of the opinion that injunction was and is proper and in denying injunctive relief on apphe respondent Appellate Court committed an error of judgment and law.

is hardly the point, as the Court of Appeals held, that the private respondent is the owner of the portionhich the right-of-way had been established and that an easement can not impair ownership. The petitionot claiming the easement or any part of the property as its own, but rather, it is seeking to have the priespondent respect the easement already existing thereon. The petitioner is moreover agreed that the priv



espondent has ownership, but that nonetheless, it has failed to observe the limitation or encumbramposed on the same

here is therefore no question as to ownership. The question is whether or not an easement exists onroperty, and as we indicated, we are convinced that an easement exists.

is true that the sale did include the alley. On this score, the Court rejects the petitioner's contention thateed of sale "excluded" it, because as a mere right-of-way, it can not be separated from the tenement

maintain an independent existence. Thus:

rt. 617. Easements are inseparable from the estate to which they actively or passively belong. 9

ervitudes are merely accessories to the tenements of which they form part. 10 Although they are possesf a separate juridical existence, as mere accessories, they can not, however, be alienated 11 from

enement, or mortgaged separately. 12

he fact, however, that the alley in question, as an easement, is inseparable from the main lot is no argumo defeat the petitioner's claims, because as an easement precisely, it operates as a limitation on the tithe owner of the servient estate, specifically, his right to use ( jus utendi ).

s the petitioner indeed hastens to point out, the deed itself stipulated that "a portion thereof [of the tenemmeasuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been converted inrivate alley for the benefit of the neighboring estates. . ." 13 and precisely, the former owner, in conveyingroperty, 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 fHREE MILLION SEVEN HUNDRED NINETY THOUSAND FOUR HUNDRED FORTY PESOS (P3,790,4o THREE MILLION FIVE HUNDRED THREE THOUSAND TWO HUNDRED FORTY PESP3,503,240.00) 14

ence, and so we reiterate, albeit the private respondent did acquire ownership over the property –– incluhe disputed alley –– as a result of the conveyance, it did not acquire the right to close that alley or otherwut up obstructions thereon and thus prevent the public from using it, because as a servitude, the alleupposed to be open to the public.

he Court is furthermore of the opinion, contrary to that of the Court of Appeals, that no genuine merger ace as a consequence of the sale in favor of the private respondent corporation. According to the Code, a merger exists when ownership of the dominant and servient estates is consolidated in the saerson. 15 Merger then, as can be seen, requires full ownership of both estates.

ne thing ought to be noted here, however. The servitude in question is a personal servitude, that is to ne constituted not in favor of a particular tenement (a real servitude) but rather, for the benefit of the genublic.

ersonal servitudes are referred to in the following article of the Civil Code:

rt. 614. Servitudes may also be established for the benefit of a community, or of one or more personhom the encumbered estate does not belong. 16



n a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and the easemertains 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, andermination of that relation leaves the easement of no use. Unless the owner conveys the property in favohe public –– if that is possible –– no genuine merger can take place that would terminate a persoasement.

or this reason, the trial court was not in error in rendering summary judgment, and insofar as the respondourt of Appeals held that it (the trial court) was in error, the Court of Appeals is in error.

ummary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issue as toxistence of a material fact, and the facts appear undisputed based on the pleadings, depositidmissions, and affidavits of record. 18 In one case, this Court upheld a decision of the trial court rendereummary judgment on a claim for money to which the defendant interposed the defense of payment but wailed to produce receipts. 19 We held that under the circumstances, the defense was not genuine but ratham, and which justified a summary judgment. In another case, we rejected the claim of acquisrescription over registered property and found it likewise to be sham, and sustained consequentlummary judgment rendered because the title challenged was covered by a Torrens Certificate and underaw, Torrens titles are imprescriptible. 20

We also denied reconveyance in one case and approved a summary judgment rendered thereon, onround that from the records, the plaintiffs were clearly guilty of laches having failed to act until after tweevenears. 21 We likewise allowed summary judgment and rejected contentions of economic hardship asxcuse for avoiding payment under a contract for the reason that the contract imposed liability under any l conditions. 22

n the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a sham one, because asaid, merger is not possible, and secondly, the sale unequivocally preserved the existing easement. In oords, the answer does not, in reality, tender any genuine issue on a material fact and can not miligainst the petitioner's clear cause of action.

s this Court has held, summary judgments are meant to rid a proceeding of the ritual of a trial where, fxisting 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 challenolding of the respondent Court of Appeals as well –– is the fact that the Court of Appeals itself had rendedgment, in its CA-G.R. No. 13421, entitled Solid Manila Corporation v . Ysrael , in which it nullifiedancellation of the easement annotated at the back of the private respondent's certificate of title ordereudge Ysrael in LRC Case No. 273. As the petitioner now in fact insists, the Court of Appeals' judgmhich was affirmed by this Court in its Resolution dated December 14, 1988, in G.R. No. 83540, is at le

he law of the case between the parties, as "law of the case" is known in law, e.g.:

xx xxx xxx

aw of the case has been defined as the opinion delivered on a former appeal. More specifically, it mehat whatever is once irrevocably established as the controlling legal rule of decision between the sa



arties in the same case continues to be the law of the case, whether correct on general principles or notong as the facts on which such decision was predicated continue to be the facts of the case before the co21 C.J.S. 330) (Emphasis supplied).

may be stated as a rule of general application that, where the evidence on a second or succeeding ap substantially the same as that on the first or preceding appeal, all matters, questions, points, or issdjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be consider readjudicated therein. (5 C.J.S. 1267) (Emphasis supplied.)

n accordance with the general rule stated in Section 1821, where, after a definite determination, the courtemanded the cause for further action below, it will refuse to examine question other than those arisubsequently to such determination and remand, or other than the propriety of the compliance with

mandate; and if the court below has proceeded in substantial conformity to the directions of the appeourt, its action will not be questioned on a second appeal.

s a general rule a decision on a prior appeal of the same case is held to be the law of the case whetherecision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing.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 oubsequent appeal, although the questions are not expressly treated in the opinion of the court, asresumption is that all the facts in the case bearing on the point decided have received due considerahether all or none of them are mentioned in the opinion. (5 C.J.S. 1286-87). (Emphasis supplied.) 24

A-G.R. No. 13421 is the law of the case because clearly, it was brought to determine the rights of the paegarding the easement, subject of the controversy in this case, although as a petition for "cancellationnotation" it may have, at a glance, suggested a different cause of action.

nd for reasons of fair play, the private respondent can not validly reject CA-G.R. No. 13421 as the law ofase, after all, it was the one that initiated the cancellation proceedings with the Regional Trial Court in Lo. 273 that precipitated that appeal. In the second place, the proceedings for cancellation of annotation fact meant to preempt the injunction decreed by the lower court in this case. Plainly and simply, the priv

espondent is guilty of forum-shopping, as we have described the term:

xx xxx xxx

here is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorpinion (other than by appeal or certiorari ) in another. The principle applies not only with respect to suits the courts but also in connection with litigations commenced in the courts while an administraroceeding is pending, as in this case, in order to defeat administrative processes and in anticipation onfavorable administrative ruling and a favorable court ruling. This is specially so, as in this case, whereourt in which the second suit was brought, has no jurisdiction. 25

o which contempt is a penalty. 26

s it happened, in its effort to shop for a friendly forum, the private respondent found an unfriendly court aan not be made to profit from its act of malpractice by permitting it to downgrade its finality and denypplicability as the law of the case.



s a personal servitude, the right-of-way in question was established by the will of the owner.

n the interesting case of North Negros Sugar Co., Inc . v . Hidalgo, 27 this Court, speaking through Juslaro Recto, declared that a personal servitude (also a right of way in that case) is established by the m

act" 28 of the landowner, and is not "contractual in the nature," 29 and a third party (as the petitioner hereinhird party) has the personality to claim its benefits. In his separate opinion, however, Justice Jose La

maintained that a personal or voluntary servitude does require a contract and that "[t]he act of the plaintipening the private way here involved did not constitute an offer . . . " 30 and "[t]here being no offer, tould be no acceptance; hence no contract." 31

he Court sees no need to relive the animated exchanges between two legal titans (they would contend emore spiritedly in the "larger" world of politics) to whom present scholars perhaps owe their erudition and w

ecause of the paths they have taken, have shaped history itself; after all, and coming back to the casar, it is not disputed that an easement has been constituted, whereas it was disputed in North Negros' caather, the question is whether it is still existing or whether it has been extinguished. As we held, our findthat it is in existence and as a consequence, the private respondent can not bar the public, by erecting

bstruction on the alley, from its use.

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is SET ASIDE andecision of the Regional Trial Court is hereby REINSTATED. The petitioner and its counsel are herequired to SHOW CAUSE why they should not be punished for contempt of court, and also administratiealt with in the case of counsel, for forum shopping.

T IS SO ORDERED.

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

egal easements

asement of right of way, requisites

G.R. NO. 130845. November 27, 2000]

RYAN U. VILLANUEVA, petitioner, vs. HON. TIRSO D.C. VELASCO in his capacity as Presiding Judghe Regional Trial Court of Quezon City, Branch 88, JULIO N. SEBASTIAN and SHIRLEY LORIespondents.

E C I S I O N

QUISUMBING, J .:

his petition for certiorari assails (1) the decision i[1] dated December 27, 1996 of the Court of Appeals in .R. SP No. 39166, dismissing petitioner’s petition for review under Rule 65 with prayer for the issuance ease and desist order and/or temporary restraining order, and (2) the resolution ii[2]dated August 14, 1enying the subsequent motion for reconsideration.

etitioner Bryan Villanueva is the registered owner of the parcel of land covered by Transfer Certificatitle No. 127862 of the Register of Deeds of Quezon City. He bought it from Pacific Banking Corporation



mortgagee of said property. The bank had acquired it from the spouses Maximo and Justina Gabriel ublic auction on March 19, 1983. When petitioner bought the parcel of land there was a small house ooutheastern portion. It occupied one meter of the two-meter wide easement of right of way the Gapouses granted to the Espinolas, predecessors-in-interest of private respondents, in a Contract of Easemf Right of Way. The pertinent portion of the contract dated November 28, 1979, states:

. . in order to have an access to and from their aforementioned land where their houses are constructed o have an outlet to Tandang Sora Ave. which is the nearest public road and the least burdensome toervient estate and to third persons, it would be necessary for them to pass through spouses MAXABRIEL and JUSTINA CAPUNO’s land and for this purpose, a path or passageway of not less than two

meters wide of said spouses’ property is necessary for the use of ROMEO, RODOLFO, NENITA URORA ESPINOLA and for all their needs in entering their property.

x x

WHEREFORE, in view of the fact that the property of the ESPINOLA had been bought by them fMAXIMO CAPUNO, father of MAXIMO GABRIEL, spouses MAXIMO GABRIEL and JUSTINA CAPUereby agree and permit RODOLFO, ROMEO, NENITA and AURORA ESPINOLA and their families to hpermanent easement of right of way over the aforementioned property of said spouses limited to not m

han two meters wide, throughout the whole length of the southeast side of said property and as specificdicated in the attached plan which is made an integral part of this Contract as Annex “A”;

his Agreement shall be binding between the parties and upon their heirs, successors, assigns, withrejudice in cases of sale of subject property that will warrant the circumstances. iii[3]

nknown to petitioner, even before he bought the land, the Gabriels had constructed the aforementiomall house that encroached upon the two-meter easement. Petitioner was also unaware that priespondents, Julio Sebastian and Shirley Lorilla, had filed on May 8, 1991, Civil Case No. Q-91-8703asement, damages and with prayer for a writ of preliminary injunction and/or restraining order againstpouses Gabriel.iv[4] As successors-in-interest, Sebastian and Lorilla wanted to enforce the contracasement.

n May 15, 1991, the trial court issued a temporary restraining order. On August 13, 1991, it issued a wreliminary mandatory injunction ordering the Gabriels to provide the right of way and to demolish the souse encroaching on the easement. On August 15, 1991, the Gabriels filed a motion for reconsiderahich was also denied. Thus, they filed a petition for certiorari before the Court of Appeals.

n March 26, 1992, the Eighth Division of the Court of Appeals dismissed the petition and upheld the RTsuances. The decision became final and executory on July 31, 1992.v[5]

n January 5, 1995, Judge Tirso Velasco of the RTC in Quezon City, Branch 88, issued an Alias Wremolition. On June 20, 1995, the sheriff tried to demolish the small house pursuant to the writ. Petitioed a Third Party Claim with Prayer to Quash Alias Writ of Demolition. He maintains that the wremolition could not apply to his property since he was not a party to the civil case. His Third Party Cith prayer to quash the writ of demolition was denied for lack of merit on August 16, 1995. vi[6] The motio

econsideration as well as the Supplemental Motion for Reconsideration dated September 12, 1995 wenied on October 19, 1995.vii[7]



etitioner, thereafter, filed a petition for certiorari before the Court of Appeals, docketed as CA-G.R. SP 9166, asserting that the existence of the easement of right of way was not annotated in his title and thaas not a party to Civil Case No. Q-91-8703, hence the contract of easement executed by the Gabriel

avor of the Espinolas could not be enforced against him. The Court of Appeals dismissed the petition for f merit and denied the reconsideration, disposing thus:

WHEREFORE, the instant petition is hereby dismissed by this court for lack of merit.

o costs considering the failure of private respondents to file their comment, despite notice. viii[8]

ence, this instant petition.

etitioner now avers that the appellate court erred in declaring,

1) THAT FOLLOWING THE ESSENCE OF INHERENCE AND INTRANSMISSIBILITY OF ASEMENT, A RIGHT OF WAY CAN EXIST EVEN IF THEY ARE NOT EXPRESSLY STATED NNOTATED ON THE TORRENS TITLE;

2) THAT PETITIONER, AS PROSPECTIVE BUYER, SHOULD HAVE EXERCISED ORDINRUDENCE BY TAKING THE INITIATIVE TO DETERMINE THAT AN EASEMENT HAS BONSTITUTED 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-91-87E CANNOT BE BOUND BY ANY JUDGMENT OR ORDER RENDERED THEREIN. ix[9]

rimarily, the issue is whether the easement on the property binds petitioner.

etitioner argues it could not be enforced against him. First, he says that a right of way cannot exist whenot expressly stated or annotated on the Torrens title. According to him, even if an easement is inherentseparable from the estate to which it actively belongs as provided in Art. 617 of the Civil Code, x[10

ame is extinguished when the servient estate is registered and the easement was not annotated in said onformably with Section 39 of the Land Registration Law. Second, petitioner points out that the trial crred when it faulted him for relying solely on the clean title of the property he bought, as it is well-settled person dealing with registered land is not required to go beyond what is recorded in the title. He adds th private respondents who should have made sure their right of way was safeguarded by having the sannotated on the title with the Register of Deeds. He adds that Section 76 of P.D. No. 1529xi[11] equires that when a case is commenced involving any right to registered land under the Land Registraaw (now the Property Registration Decree), any decision on it will only be effectual between or amongarties thereto, unless a notice of lis pendens of such action is filed and registered in the registry office whhe land is recorded. There was no such annotation in the title of the disputed land, according to petitioastly , since he was not a party to Civil Case No. Q-91-8703, petitioner argues that he cannot be bounhe writ of demolition and be forcibly divested of a portion of his land without having his day in court.

rivate respondents Sebastian and Lorilla, for their part, adopted the disquisition of the appellate courheir Comment and asked for the dismissal of the petition and P100,000.00 in damages. In its decisionppellate court, citing the decision of the lower court, stressed that unlike other types of encumbrance of roperty, a servitude like a right of way can exist even if they are not expressly stated or annotated asncumbrance in a Torrens title because servitudes are inseparable from the estates to which they active



assively belong. Moreover, Villanueva was bound by the contract of easement, not only as a volunasement but as a legal easement. A legal easement is mandated by law, and continues to exists uns removal is provided for in a title of conveyance or the sign of the easement is removed beforexecution of the conveyance conformably with Article 649 xii[12]in accordance with Article 617xiii[13] of the ode.

t the outset, we note that the subject easement (right of way) originally was voluntarily constitutedgreement between the Gabriels and the Espinolas. But as correctly observed by the Court of Appealsasement in the instant petition is both (1) an easement by grant or a voluntary easement, and (2asement by necessity or a legal easement. A legal easement is one mandated by law, constituted for puse or for private interest, and becomes a continuing property right. xiv[14] As a compulsory easement,separable from the estate to which it belongs, as provided for in said Article 617 of the Civil Code. ssential requisites for an easement to be compulsory are: (1) the dominant estate is surrounded by o

mmovables and has no adequate outlet to a public highway; (2) proper indemnity has been paid; (3)olation was not due to acts of the proprietor of the dominant estate; (4) the right of way claimed is at a p

east prejudicial to the servient estate; and (5) to the extent consistent with the foregoing rule, wherestance from the dominant estate to a public highway may be the shortest. xv[15] The trial court and the Cf Appeals have declared the existence of said easement (right of way). This finding of fact of both coelow is conclusive on this Court,xvi[16] hence we see no need to further review, but only to re-affirm,nding. The small house occupying one meter of the two-meter wide easement obstructs the entry of priespondents’ cement mixer and motor vehicle. One meter is insufficient for the needs of private responde

is well-settled that the needs of the dominant estate determine the width of the easement. xv

onformably then, petitioner ought to demolish whatever edifice obstructs the easement in view of the nef private respondents’ estate.

etitioner’s second proposition, that he is not bound by the contract of easement because the same wasnnotated in the title and that a notice of lis pendens of the complaint to enforce the easement wasecorded with the Register of Deeds, is obviously unmeritorious. As already explained, it is in the naturegal easement that the servient estate (of petitioner) is legally bound to provide the dominant estaterivate respondents in this case) ingress from and egress to the public highway.

etitioner’s last argument that he was not a party to Civil Case No. Q-91-8703 and that he had not been gs day in court, is also without merit. Rule 39, Sec. 47, of the Revised Rules of Court:

EC. 47. Effect of judgments or final orders. – The effect of a judgment or final order rendered by a couhe 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, odministration of the estate of a deceased person, or in respect to the personal, political, or legal conditiotatus of a particular person or his relationship to another, the judgment or final order is conclusive upontle to the thing, the will or administration, or the condition, status or relationship of the person; however,robate of a will or granting of letters of administration shall only be prima facie evidence of the death oestator or intestate;

b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or any other matter that could have been raised in relation thereto, conclusive between the parties and tuccessors in interest by title subsequent to the commencement of the action or special proceedtigating 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 interest, that only is deemeave been adjudged in a former judgment or final order which appears upon its face to have beendjudged, or which was actually and necessarily included therein or necessary thereto. (Emphasis ours).

imply stated, a decision in a case is conclusive and binding upon the parties to said case and those whoheir successor in interest by title after said case has been commenced or filed in court. xviii[18] In this crivate respondents, Julio Sebastian and Shirley Lorilla, initiated Civil Case No. Q-91-8703 on May 8, 1999] against the original owners, the spouses Maximo and Justina Gabriel. Title in the name of petitioner ntered in the Register of Deedsxx[20] on March 24, 1995, after he bought the property from the bank wad acquired it from the Gabriels. Hence, the decision in Civil Case No. Q-91-8703 binds petitioner. though not a party to the suit, he is a successor-in-interest by title subsequent to the commencement oction in court.

WHEREFORE, the instant petition is DENIED. The assailed decision and resolution of the Court of Appre AFFIRMED. Costs against petitioner.

O ORDERED.

ellosillo (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

.R. No. 75905 October 12, 1987

EMIGIO O. RAMOS, SR., petitioner,s.ATCHALIAN REALTY, INC., EDUARDO ASPREC, and COURT OF APPEALS, respondents.

UTIERREZ, JR., J.:

n this petition for review on certiorari, the petitioner assails the decision of the Court of Appeals dated Aug9, 1986 which affirmed the November 14, 1984 order of the Regional Trial Court, Branch CXI at Pasay smissing the petitioner's civil action for a right of way with prayer for preliminary injunction.

etitioner Ramos is the owner of a house and lot containing an area of 901 square meters coveredransfer Certificate of Title No. 14927 situated at Barrio San Dionisio, Parañaque, Metro Manila. The lot cquired by the petitioner from Science Rodriguez Lombos Subdivision In the subdivision survey plan of133-G, (LRC) PSD-172544, the lot is more particularly described as Lot 4133-G-11 (Exhibits "1" and "1-Awo road lots abut petitioner's property namely lot 4133-G-12 with an area of 2,160 square meters cleppearing as a proposed road in the Lombos subdivision plan and Lot 4135 of the Parañaque Cadastre nown as Pambansa Road but more commonly referred to as Gatchalian Avenue.

espondents Asprec own Lot 4135. Gatchalian Avenue is alongside Lot 4135. Respondent Gatchalian Reas granted the road right of way and drainage along Lot 4135 to service the Gatchalian and Aspubdivision, by the respondent Asprecs.



he records of this case disclose that on April 30, 1981, a complaint for an easement of a right of way reliminary mandatory injunction was filed by Ramos against the private respondents. Among the allegat the complaint are:

. that he (referring to the petitioner) constructed his house at 27 Gatchalian Avenue (also knownambansa Road), Paranaque, and has since resided therein with his family from 1977 up to the present; uring construction of the house, Gatchalian Realty, Inc. built a 7-8, feet high concrete wall right infronppellant's premises, blocking his entrance/exit to Gatchalian Road, the nearest, most convenient dequate entrance/exit to the public road. or highway, formerly Sucat Road but now known as Dr. A. Sanvenue, Parañaque; that this house and lot is only about 100 meters from Sucat, Road passing atchalian Avenue; that prior to this, appellant and his counsel addressed separate request/demand le

Exh. A and Annex B) to defendant company to allow him to exercise a right of way on the subject premishat in September 1977, a meeting/conference was held between appellant and his counsel on one hand

Mr. Roberto Gatchalian and counsel on the other, during which defendant Corporation manifestedonformity to grant appellant the requested right of way upon payment of proper indemnity, with the reqhat appellant inform defendants Asprec of their aforesaid agreement; that consequently, appellant wroteleto Asprec on September 16, 1977 (Exh. D); that with the construction of the 7-8 feet concrete ppellant and his family have been constrained to pass through the back portion of their lot bounded by o

ots belonging to different owners, which is grassy and cogonal as temporary ingress/egress with gconvenience and hardship, and this becomes all the more pronounced during the rainy season due to fnd mud (Exhs. B-1, B-1-A, B-2; B-2-A, B-3, B-3-A, B-3-B and B-4); and, lastly, that the aforesaid concall is dangerously leaning towards appellant's premises posing great danger or hazard. (Court of Appecision, p. 3, Rollo, p. 39)

n May 20, 1981, the respondent corporation filed a motion to dismiss on grounds of lack of cause of acnd bar by prior judgment alleging that the complaint was merely a reproduction of that filed on October972 in Civil Case No. 5930-P which was dismissed on October 30, 1980 for failure to prosecute witheasonable length of time. Respondents Asprec later joined the respondent company in its motion to dismnd adopted the grounds and arguments stated therein.

n November 20, 1981, after the petitioner had filed his opposition to the above motions, the lower csued its order denying the motion to dismiss on the ground that the order dismissing the earlier case ot an adjudication on the merits.

n November 26, 1981, the petitioner filed an urgent exparte motion for the issuance of a preliminmandatory injunction as well as a preliminary prohibitory injunction. On the same day, the lower court setmotion for hearing on December 1, 1981, later reset to December 10, 1981, and ordered that:

n the meantime, pending determination of the application on the merits and in order that the reliefs soherein may not be rendered moot and academic, the defendants and all persons acting upon their ordersereby temporarily enjoined from building, constructing and/or erecting a wall, fence or any enclodjoining or abutting plaintiff's premises and/or from restraining, preventing or prohibiting the plaintiff,

amily or persons residing in his premises as well as any person/s who may have any dealing or business hem from using, passing and/or traversing the said Gatchalian Avenue in going to or returning from aintiff's premises and in going to or returning from Sucat Road via Gatchalian Avenue, until further ordom this Court. (Order dated November 26,1981, Records, p. 66).

n December 1, 1981, Gatchalian Realty filed its answer and averred, among others, that:



xx xxx xxx

efendant Corporation has never entered into a verbal agreement with plaintiff to grant the latter a road rf way;

xx xxx xxx

he so-called Gatchalian Avenue or Palanyag Road is not a public road but a private street establishedonstructed by the defendant Corporation intended for the sole and exclusive use of its residents and

uyers of its subdivisions, as well as of the subdivisions owned and operated by the various naked ownerhe different portions constituting the entire length and breadth of said street;

plaintiff's property referred to in the complaint is Lot No. 4133-G-11, (LRC) Psd-229001 (sic), then a graright of way to plaintiff is not a legal necessity, because such lot has an eating road right of way, m

articularly Lot 4133-G-12, towards Dr. Arcadio Santos Avenue(Sukat Road);

xx xxx xxx

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

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

n December 2, 1981, respondent Asprec filed their answer which basically contained the same averms that of the realty company.

t the hearing of the petitioner's application for issuance of a writ of preliminary injunction to compelrivate respondents to remove the wall constructed right in front of the petitioner's premises barring ccess to Gatchalian Avenue, both parties presented oral and documentary evidence to support espective positions. After the hearing, the lower court issued the following order:

laintiff is given fifteen (15) days to file a memorandum and the defendant is given another fifteen days feceipt thereof to file a reply, after which the case shall be deemed submitted for resolution. So ordeTSN, December 10, 1981, p. 57)

fter compliance by both parties with the above order, the lower court, on July 9, 1982, rendered a decihe dispositive part of which reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants orderingatter to grant the former a right of way through Palanyag Road to and from Don Arcadio Santos Avenue o and from his residence, upon payment by the plaintiff to the defendants Asprecs the sum of P5,000demnity therefor and under the following terms and conditions to wit: (1) the easement created shall be favor of the plaintiff, members of his family and person or persons dealing with them; and (2) the openin



e created through the concrete wall separating plaintiff's residence and Palanyag Road shall only be t3) meters wide and shall be provided by an iron gate by the plaintiff all at the expense of the plaintiff. Withronouncement as to costs and damages. (Rollo, p. 30)

hereafter, the respondent company filed a motion to set aside and/or reconsider the lower court's decior being premature since only the application for the writ of injunction was heard and submitted for resolund not the entire case. Respondents Asprec, likewise, filed a motion for reconsideration mainly onround that the lower court's grant of a right of way through Gatchalian Avenue in petitioner's favor would derogation of the "Contract of Easement of Road Right-of-Way and of Drainage" executed between tnd Gatchalian Realty.

n his opposition to both motions, the petitioner argued that on the basis of the transcript of steno graotes taken on December 10, 1981, it was clear that both parties submitted the entire case for resoluasmuch as the pieces of evidence for the injunction and for the main case were the same and there othing left to be presented. Thus, in effect, the petitioner contended that the lower court's decision dated , 1982 was an adjudication on the merits.

n July 8, 1983, the lower court under a new judge by virtue of the reorganization of the judiciary, issuedrder setting aside and vacating its previous decision dated July 9, 1982 on the ground that the same endered prematurely as the defendants had not presented their evidence on the main evidence."

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

he petitioner.

n November 14, 1984, the lower court, acting on the respondent company's motion to dismiss, issuedrder with the following tenor:

WHEREFORE, finding the motion to dismiss of defendant corporation Gatchalian Realty, Inc. to be impresith merit, the same is hereby granted. For insufficiency of evidence, plaintiff's complaint is hereby dismissithout pronouncement as to costs. (Rollo, p. 34)

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

ence, this petition which presents the following assignment of errors:

UBLIC RESPONDENT ERRED IN AFFIRMING I-IV TOTO THE ORDER OF DISMISSAL OF THE TROURT IN ALL RESPECTS WITH COSTS AGAINST THE PETITIONER.

UBLIC RESPONDENT ERRED IN ITS DECISION TO THE EFFECT THAT PETITIONER HAS NUFFICIENTLY MET THE REQUIREMENTS OF THE LAW AND IN FAILING TO PROVE HIS RIGHT

WAY THROUGH GATCHALIAN AVENUE OR PALANYAG ROAD AGAINST THE RESPONDENTS HER



I

UBLIC RESPONDENT ERRED IN FAILING TO SET ASIDE THE ORDER OF THE TRIAL COURT, AOT ADOPTING THE DECISION OF THE TRIAL COURT DATED JULY 9,1982 GRANTING ETITIONER A RIGHT OF WAY IN THE SUBJECT PREMISES. (Rollo, pp. 14-15)

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

n easement or servitude in an encumbrance imposed upon an immovable for the benefit of anommovable belonging to a different owner as defined in Article 613 of the Civil Code. It is established eitheaw, in which case it is called legal or by the will of the parties, in which event it is a voluntary easement. (rticle 619, Civil Code of the Philippines; City of Manila vs. Entote, 57 SCRA 497, 503).

ince there is no agreement between the contending parties in this case granting a right of way by onavor of the other, the establishment of a voluntary easement between the petitioner and the respondompany and/or the other private respondents is ruled out. What is left to examine is whether or notetitioner is entitled to a legal or compulsory easement of a right of way.

n the case of Bacolod-Murcia Milling Company, Inc. vs. Capitol Subdivision Inc., et al. (17 SCRA 731, 73e held that:

. the Central had to rely strictly on its being entitled to a compulsory servitude of right of way, under the ode, and it could not claim any such servitude without first establishing the pre-conditions for its grant fy Articles 649 and 650 of the Civil Code of the Philippines:

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

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

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

4) That the right of way claimed is "at the point least prejudicial to the servient estate; and insofaonsistent with this rule, where the distance from the dominant estate to a public highway may be hortest." (Art. 650).

y express provision of law, therefore, a compulsory right of way can not be obtained unless the equisites enumerated are first shown to exist, and the burden of proof to show their existence was onentral. (See also Angela Estate, Inc. vs. Court of First Instance of Negros Occidental 24 SCRA 500, 510)

n the first requisite, the petitioner contends that since the respondent company constructed the concall blocking his ingress and egress via the Gatchalian Avenue, the "nearest, most convenient and adequ

oad" to and from a public highway, he has been constrained to use as his "temporary" way the adjoining elonging to different persons. Said way is allegedly "bumpy and impassable especially during rainy seasecause of flood waters, mud and tall 'talahib' grasses thereon." Moreover, according to the petitioneroad right of way which the private respondents referred to as the petitioner's alternative way to Sucat Roa



ot an existing road but has remained a proposed road as indicated in the subdivision plan of the Sobodriguez Lombos Subdivision.

he petitioner's position is not impressed with merit. We find no reason to disturb the appellate court's finf fact that the petitioner failed to prove the non-existence of an adequate outlet to the Sucat Road exc

hrough the Gatchalian Avenue. As borne out by the records of the case, there is a road right of way provy the Sabrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in its subdivision plan foruyers of its lots. The fact that said lot is still undeveloped and causes inconvenience to the petitioner we uses it to reach the public highway does not bring him within the ambit of the legal requisite. We agree he appellate court's observation that the petitioner should have, first and foremost, demanded fromabrina Rodriguez Lombos Subdivision the improvement and maintenance of Lot 4133-G-12 as his road rf way because it was from said subdivision that he acquired his lot and not either from the Gatchalian Rer the respondents Asprec. To allow the petitioner access to Sucat Road through Gatchalian Avenue insf a road right of way provided by the petitioner's subdivision for its buyers simply because Gatchavenue allows petitioner a much greater ease in going to and coming from the main thoroughfare iompletely ignore what jurisprudence has consistently maintained through the years regarding an easemf a right of way, that "mere convenience for the dominant estate is not enough to serve as its basis. To juhe imposition of this servitude, there must be a real, not a fictitious or artificial, necessity for it." (olentino, Civil Code of the Philippines, Vol. II, 2nd ed., 1972, p. 371)

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

nce again, we apply the rule that findings of facts of the Court of Appeals are binding on the Supreme Cnd who not be overturned when supported by the evidence on record save in the known exceptions sucross misappreciation of the evidence or misapprehension of facts. (See Community Savings and Lssociation, Inc. vs. Court of Appeals, et al., G.R. No. 75786 promulgated on August 31, 1987; Regalarioorthwest Finance Corporation, 117 SCRA 45; Agton vs. Court of Appeals, 113 SCRA 322).

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

O ORDERED.

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

.R. No. 80511 January 25, 1991

OSTABELLA CORPORATION, petitioner,s.OURT OF APPEALS, KATIPUNAN LUMBER CO., INC., AURORA BUSTOS LOPEZ, MANUELATORRE, JR., JOSEFA C. REVILLES, FELIX TIUKINHOY, JR., PERFECTA L. CHUANGCO, ESAR T. ESPINA, respondents.

oco, Bunag, Kapunan & Migallos for petitioner.

lbano, Garcia & Diaz Law Offices for Katipunan Lumber Co., Inc.



osa & Quijano Law Offices for respondents.

ARMIENTO, J.:p

he principal issue raised in this petition for review on certiorari of the decision 1 dated May 30, 1986 ofourt of Appeals, 2 which modified the decision 3 rendered by the Regional Trial Court of Lapu-Lapu Ciebu, is whether or not the private respondents had acquired an easement of right of way, in the form

assageway, on the petitioner's property.

is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122 and 5124 ofpon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it had constructed a resort otel. The private respondents, on the other hand, are the owners of adjoining properties more particunown as Lots Nos. 5123-A and 5123-C of the Opon Cadastre.

efore the petitioner began the construction of its beach hotel, the private respondents, in going to and fheir respective properties and the provincial road, passed through a passageway which traversedetitioner's property. In 1981, the petitioner closed the aforementioned passageway when it beganonstruction of its hotel, but nonetheless opened another route across its property through which the priespondents, as in the past, were allowed to pass. (Later, or sometime in August, 1982, when it undertookonstruction of the second phase of its beach hotel, the petitioner fenced its property thus closing eventernative passageway and preventing the private respondents from traversing any part of it.)

s a direct consequence of these closures, an action for injunction with damages was filed againstetitioner by the private respondents on September 2, 1982 before the then Court of First Instance of Cebn their complaint, the private respondents assailed the petitioner's closure of the original passageway whey (private respondents) claimed to be an "ancient road right of way" that had been existing before W

War II and since then had been used by them, the community, and the general public, either as pedestrr by means of vehicles, in going to and coming from Lapu-Lapu City and other parts of the country. rivate respondents averred that by closing the alleged road right of way in question, the petitioner eprived them access to their properties and caused them damages.

n the same complainant, the private respondents likewise alleged that the petitioner had constructed a n the beach fronting the latter's property without the necessary permit, obstructing the passage ofesidents and local fishermen, and trapping debris and flotsam on the beach. They also claimed thatebris and flotsam that had accumulated prevented them from using their properties for the purpose for whey had acquired them. The complaint this prayed for the trial court to order the re-opening of the origassageway across the petitioner's property as well as the destruction of the dike. 5

n its answer, 6 the petitioner denied the existence of an ancient road through its property and counverred, among others, that it and its predecessors-in-interest had permitted the temporary, intermittent, ratuitous use of, or passage through, its property by the private respondents and others by mere tolerand purely as an act of neighborliness. It justified the walling in of its property in view of the need to insureafety and security of its hotel and beach resort, and for the protection of the privacy and convenience ootel patrons and guests. At any rate, the petitioner alleged, the private respondents were not entiependent on the subject passageway as they (private respondents) had another existing and adequccess to the public road through other properties. With respect to the dike it allegedly constructed,



etitioner stated that what it built was a breakwater on the foreshore land fronting its property and not a ds claimed by the private respondents. Moreover, contrary to the private respondents' accusation, the onstruction had benefitted the community especially the fishermen who used the same as mooring for toats during low tide. The quantity of flotsam and debris which had formed on the private respondents' beont on the other hand were but the natural and unavoidable accumulations on beaches by the action ofdes and movement of the waves of the sea. The petitioner's answer then assailed the private respondeomplaint for its failure to implead as defendants the owners of the other properties supposedly traversedhe alleged ancient road right way, indispensable parties without whom no final adjudication of ontroversy could be rendered. 7

fter trial, the court a quo rendered a decision on March 15, 1984 finding that the private respondents cquired a vested right over the passageway in controversy based on its long existence and its continued nd enjoyment not only by the private respondents, but also by the community at large. The petitioner iosing the said passageway, had accordingly violated the private respondents' vested right. Thus, the ourt ordered the petitioner:

. To open and make available the road in question to the plaintiffs and the general public at all times freny obstacle thereof, unless the defendant, shall provide another road equally accessible and convenienhe road or passage closed by the defendant;

. To pay the plaintiff Katipunan Lumber Company, Inc. the amount of FIVE THOUSAND PESOS (P5,000month beginning January, 1983, and the plaintiff Perfecto Guangco the sum of TWO HUNDRED PES

P200.00) a month beginning September, 1982, representing their respective expenditures they had incu other beach resorts after the road was closed, until the passageway claimed by them is opened and mvailable to them, or if the defendant chooses to provide another road, until such road is made available onveniently passable to the plaintiffs and the general public; and

. To pay the sum of FIFTEEN THOUSAND PESOS (P15,000.00) attorney's fees, and to pay the costs. 8

oth parties elevated the trial court's decision to the Court of Appeals, with the petitioner questioningleged "vested right" of the private respondents over the subject passageway, and the private respondssailing the dismissal of their complaint insofar as their prayer for the demolition of the petitioner's "dikeoncerned.

n its decision, the respondent Appellate Court held as without basis the trial court's finding that the privespondents had acquired a vested right over the passageway in question by virtue of prescription. 9 ppellate court pointed out that an easement of right of way is a discontinuous one which, under Article 62he New Civil Code, may only be acquired by virtue of a title and not by prescription. 10 That notwithstandhe appellate court went on to rule that ". . . in the interest of justice and in the exercise by this Court oquity jurisdiction, there is no reason for Us in not treating the easement here sought by appellees Katipuumber Co., Inc. and Perfecta Guangco as one that is not dependent upon the claims of the parties bompulsory one that is legally demandable by the owner of the dominant estate from the owner of the servstate." 11 Thus the appellate court: (1) granted the private respondents the right to an easement of wahe petitioner's property using the passageway in question, unless the petitioner should provide anoassageway equally accessible and convenient as the one it closed; (2) remanded the case to the trial cor the determination of the just and proper indemnity to be paid to the petitioner by the private respondor the said easement; and (3) set aside the trial court's award of actual damages and attorney's fees. 12



n petitioner's motion for partial reconsideration, the respondent court issued on October 27, 198esolution 13 denying the said motion. The Appellate Court however in denying the petitioner's motioneconsideration stated that:

. . While it is true that there is another outlet for the plaintiff to the main road, yet such outlet is a new onstructed in 1979, while the road closed by defendant existed since over 30 years before. Legally, theoad could be closed; but since the existing outlet is inconvenient to the plaintiff, equitably the plaintiff shoe given a chance to pay for a more convenient outlet through the land of the defendant at a point lerejudicial to the latter. In any event, the plaintiff shall pay for all damages that defendant corporation mustain and the defendant regulates the manner of use of the right of way to protect defendant's property s customers. This is the gist of Our decision. 14

ow before us, the petitioner contends that the decision of the respondent appellate court is grorroneous and not in accord with the provisions of Articles 649 and 650 of the Civil Code on easements

he prevailing jurisprudence on the matter.

he petition is meritorious.

is already well-established that an easement of right of way, as is involved here, is discontinuous 15 anuch can not be acquired by prescription. 16 Insofar therefore as the appellate court adhered to the foregrecepts, it stood correct. Unfortunately, after making the correct pronouncement, the respondent Appeourt did not order the reversal of the trial court's decision and the dismissal of the complaint after hol

hat no easement had been validly constituted over the petitioner's property. Instead, the Appellate Cent on to commit a reversible error by considering the passageway in issue as a compulsory easemhich the private respondents, as owners of the "dominant" estate, may demand from the petitioner the laeing the owner of the "servient" estate.

is provided under Articles 649 and 650 of the New Civil Code that:

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

hould this easement be established in such a manner that its use may be continuous for all the needs ofominant estate, establishing a permanent passage, the indemnity shall consist of the value of the ccupied and the amount of the damage caused to the servient estate.

n case the right of way is limited to the necessary passage for the cultivation of the estate surroundedthers and for the gathering of its crops through the servient estate without a permanent way, the indemhall consist in the payment of the damage caused by such encumbrance.

his easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts.

rt. 650. The easement of right of way shall be established at the point least prejudicial to the servient esnd, insofar as consistent with this rule, where the distance from the dominant estate to a public highway e the shortest.



ased on the foregoing, the owner of the dominant estate may validly claim a compulsory right of way fter he has established the existence of four requisites, to wit: (1) the (dominant) estate is surroundedther immovables and is without adequate outlet to a public highway; (2) after payment of the prodemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of way claimed is oint least prejudicial to the servient estate. Additionally, the burden of proving the existence of the foregre-requisites lies on the owner of the dominant estate. 17

ere, there is absent any showing that the private respondents had established the existence of the equisites mandated by law. For one, they failed to prove that there is no adequate outlet from their respecroperties to a public highway. On the contrary, as alleged by the petitioner in its answer to the complaint, onfirmed by the appellate court, "there is another outlet for the plaintiffs (private respondents) to the moad." 18 Thus, the respondent Court of Appeals likewise admitted that "legally the old road couldosed." 19 Yet, it ordered the re- opening of the old passageway on the ground that "the existing outlet ther outlet) is inconvenient to the plaintiff." 20 On this score, it is apparent that the Court of Appeals lost sf the fact that the convenience of the dominant estate has never been the gauge for the grant of compulght of way. 21 To be sure, the true standard for the grant of the legal right is "adequacy." Hence, when thalready an existing adequate outlet from the dominant estate to a public highway, even if the said outlet

ne reason or another, be inconvenient, the need to open up another servitude is entirely unjustified. Fostify the imposition of an easement or right of way, "there must be a real, not a fictitious or artificial nece

or it." 22

urther, the private respondents failed to indicate in their complaint or even to manifest during the trial ofase that they were willing to indemnify fully the petitioner for the right of way to be established overoperty. Neither have the private respondents been able to show that the isolation of their property wasue to their personal or their predecessors-in-interest's own acts. Finally, the private respondents failelege, much more introduce any evidence, that the passageway they seek to be re-opened is at a point lrejudicial to the petitioner. Considering that the petitioner operates a hotel and beach resort in its proper

must undeniably maintain a strict standard of security within its premises. Otherwise, the convenierivacy, and safety of its clients and patrons would be compromised. That indubitably will doometitioner's business. It is therefore of great importance that the claimed light of way over the petitionroperty be located at a point least prejudicial to its business.

ence, the Private respondents' properties can not be said to be isolated, for which a compulsory easemdemandable. Insofar therefore as the Appellate Court declared the case to be proper as a controversy f

ompulsory right of way, this Court is constrained to hold that it was in error.

ervitudes of right of way are an ancient concept, which date back to the iter, actus, and via of the Romanhey are demanded by necessity, that is, to enable owners of isolated estates to make full use of troperties, which lack of access to public roads has denied them. 24 Under Article 649 of the Civil Code, re compulsory and hence, legally demandable, subject to indemnity and the concurrence of the oonditions above-referred to.

s also earlier indicated, there must be a real necessity therefor, and not mere convenience for the domistate. Hence, if there is an existing outlet, otherwise adequate, to the highway, the "dominant" estate canemand a right of way, although the same may not be convenient. Of course, the question of whearticular passage may be said to be "adequate" depends on the circumstances of each case. Manrowever, says: "In truth, not only the estate which absolutely does not possess it should be considered in ondition, but also that which does not have one sufficiently safe or serviceable; an estate bordering a pu



oad through an inaccessible slope or precipice, is in fact isolated for all the effects of the easemequested by its owner. On the other hand, an estate which for any reason has necessarily lost its accessublic road during certain periods of the year is in the same condition. . . . There are some who propounduery as to whether the fact that a river flows between the estate and the public road should be consideredaving the effect of isolating the estate. . . . If the river may be crossed conveniently at all times without

east danger, it cannot be said that the estate is isolated; in any other case, the answer is in the affirmative

he isolation of the dominant estate is also dependent on the particular need of the dominant owner, andstate itself need not be totally landlocked. What is important to consider is whether or not a right of waecessary to fill a reasonable need therefor by the owner. 26 Thus, as Manresa had pointed out, ifassageway consists of an "inaccessible slope or precipice," 27 it is as if there is no passageway, that is, hat can sufficiently fulfill the dominant owner's necessities, although by the existence of that passagewayroperty can not be truly said that the property is isolated. So also, while an existing right of way may hroved adequate at the start, the dominant owner's need may have changed since then, for which Article f the Code allows adjustments as to width. 28

ut while a right of way is legally demandable, the owner of the dominant estate is not at liberty to impose ased on arbitrary choice. Under Article 650 of the Code, it shall be established upon two criteria: (1) atoint least prejudicial to the servient state; and (2) where the distance to a public highway may behortest. According, however, to one commentator, "least prejudice" prevails over "shortest distance." 29 ach case must be weighed according to its individual merits, and judged according to the sound discretiohe court. "The court," says Tolentino, "is not bound to establish what is the shortest; a longer way maystablished to avoid injury to the servient tenement, such as when there are constuctions or walls which e avoided by a roundabout way, or to secure the interest of the dominant owner, such as when the shorstance would place the way on a dangerous decline." 30

is based on these settled principles that we have resolved this case.

WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987, ofespondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby DISMISSosts against the private respondents.

O ORDERED.

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

.R. No. 112331 May 29, 1996

NASTACIA QUIMEN, petitioner,s.OURT OF APPEALS and YOLANDA Q. OLIVEROS, respondents.

ELLOSILLO, J.: p

N EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will cause least prejuhall be chosen. However, if the two circumstances do not concur in a single tenement, the way wh



amage will be least shall be used even if not the shortest route. 1 This is so because least prejudice prever shortest distance. This means that the court is not bound to establish what is the shortest distanc

onger way may be adopted to avoid injury to the servient estate, such as when there are constructionalls which can be avoided by a round about way, or to secure the interest of the dominant owner, suchen the shortest distance would place the way on a dangerous decline.

hus we conclude from the succeeding facts: Petitioner Anastacia Quimen together with her brothers Sotulpicio, Antonio and sister Rufina inherited a piece of property situated in Pandi, Bulacan. They agreeubdivide the property equally among themselves, as they did, with the shares of Anastacia, Sotero, Sulpnd Rufina abutting the municipal rhe share of Anastacia, located at the extreme left, was designated as Lot No. 1448-B-1. It is bounded onght by the property of Sotero designated as Lot. No. 14413-B-2. Adjoining Sotero's property on the rightots Nos. 1448-B-3 and 1448-B-4 originally owned by Rufina and Sulpicio, respectively, but which were cquired by a certain Catalina Santos. Located directly behind the lots of Anastacia and Sotero is the sharheir brother Antonio designated as Lot No. 1448-B-C which the latter divided into two (2) equal parts, ots Nos. 1448-B-6-A and 1448-B-6-B, each with an area of 92 square meters. Lot No. 1448-B-6-A is locaehind Anastacia's Lot No. 1448-B-1, while Lot No. 1448-B-6-B is behind the property of Sotero, fatheespondent Yolanda.

n February 1982 Yolanda purchased Lot No. 1448-B-6-A from her uncle Antonio through her aunt Anastho was then acting as his administratrix. According to Yolanda, when petitioner offered her the propertyale she was hesitant to buy as it had no access to a public road. But Anastacia prevailed upon her to buyot with the assurance that she would give her a right of way on her adjoining property for P200.00 per squmeter.

hereafter, Yolanda constructed a house on the lot she bought using as her passageway to the pughway a portion of Anastacia's property. But when Yolanda finally offered to pay for the use of the pathnastacia refused to accept the payment. In fact she was thereafter barred by Anastacia from pas

hrough her property. 2

n February 1986 Yolanda purchased the other lot of Antonio Quimen, Lot No. 1448-B-6-B, located direehind the property of her parents who provided her a pathway gratis et amore between their hoxtending about nineteen (19) meters from the lot of Yolanda behind the sari sari store of Sotero, nastacia's perimeter fence. The store is made of strong materials and occupies the entire frontage of th

measuring four (4) meters wide and nine meters (9) long. Although the pathway leads to the municipal roanot adequate for ingress and egress. The municipal road cannot be reached with facility because the s

self obstructs the path so that one has to pass through the back entrance and the facade of the storeach the road.

n 29 December 1987 Yolanda filed an action with the proper court praying for a right of way thronastacia's property. An ocular inspection upon instruction of the presiding judge was conducted byranch clerk of court. The report was that the proposed right of way was at the extreme right of Anastacroperty facing the public highway, starting from the back of Sotero's sari-sari store and extending inwarne (1) meter to her property and turning left for about five (5) meters to avoid the store of Sotero in ordeeach the municipal road 3 and the way was unobstructed except for an avocado tree standing in the middl

ut on 5 September 1991 the trial court dismissed the complaint for lack of cause of action; explaining he right of way through Sotero's property was a straight path and to allow a detour by cutting thro



nastacia's property would no longer make the path straight. Hence the trial court concluded that it was mractical to extend the existing pathway to the public road by removing that portion of the store blockingath as that was the shortest route to the public road and the least prejudicial to the parties concerned assing through Anastacia's property. 5

n appeal by respondent Yolanda, the Court of Appeals reversed the lower court and held that she wntitled to a right of way on petitioner's property and that the way proposed by Yolanda would cause the leamage and detriment to the servient estate. 6 The appellate court however did not award damages to priespondent as petitioner did not act in bad faith in resisting the claim.

etitioner now comes to us imputing ERROR to respondent Court of Appeals: (a) in disregardinggreement of the parties; (b) in considering petitioner's property as a servient estate despite the fact thoes not abut or adjoin the property of private respondent; and, (c) in holding that the one-meter by five-massage way proposed by private respondent is the least prejudicial and the shortest distance to the puoad.

ncidentally, petitioner denies having promised private respondent a right of way. She claims that greement with private respondent was to provide the latter with a right of way on the other lot of Ant

Quimen under her administration when it was not yet sold to private respondent. Petitioner insists assing through the property of Yolanda's parents is more accessible to the public road than to make a deo her property and cut down the avocado tree standing thereon.

etitioner further argues that when Yolanda purchased Lot 448-B-6-B in 1986 the easement of right of way she provided her (petitioner) was ipso jure extinguished esult of the merger of ownership of the dominant and the servient estates in one person so that there wasonger any compelling reason to provide private respondent with a right of way as there are other surrounots suitable for the purpose. Petitioner strongly maintains that the proposed right of way is not the shorccess to the public road because of the detour and that, moreover, she is likely to suffer the most damaghe derives a net income of P600.00 per year from the sale of the fruits of her avocado tree, and considehat an avocado has an average life span of seventy (70) years, she expects a substantial earning from it.

ut we find no cogent reason to disturb the ruling of respondent appellate court granting a right of warivate respondent through petitioner's property. In fact, as between petitioner Anastacia and responolanda their agreement has already been rendered moot insofar as it concerns the determination ofrincipal issue herein presented. The voluntary easement in favor of private respondent, which petitioner enies but which the court is inclined to believe, has in fact become a legal easement or an easemenecessity constituted by law. 8

s defined, an easement is a real right on another's property, corporeal and immovable, whereby the owf the latter must refrain from doing or allowing somebody else to do or something to be done on his propeor the benefit of another person or tenement. 9 It is jus in re aliena, inseparable, indivisible and perpenless extinguished by causes provided by law. A right of way in particular is a privilege constitutedovenant or granted by law 10 to a person or class of persons to pass over another's property whenenement is surrounded by realties belonging to others without an adequate outlet to the public highway. wner of the dominant estate can demand a right of way through the servient estate provided he indemnhe owner thereof for the beneficial use of his property. 11



he conditions sine quo non for a valid grant of an easement of right of way are: (a) the dominant estaurrounded by other immovables without an adequate outlet to a public highway; (b) the dominant estailling to pay the proper indemnity; (c) the isolation was not due to the acts of the dominant estate; and

he right of way being claimed is at a point least prejudicial to the servient estate. 12

cursory examination of the complaint of respondent Yolanda for a right of way 13 readily shows that —

E]ven before the purchase of the said parcels of land the plaintiff was reluctant to purchase the same for tre enclosed with permanent improvements like a concrete fence and store and have ( sic ) no egress leao the road but because of the assurance of the defendant that plaintiff will be provided one (1) meter wnd five (5) meters long right of way in the sum of P200.00 per square meter to be taken from Anastacia'st the side of a concrete store until plaintiff reach(es) her father's land, plaintiff was induced to buyforesaid parcels of land . . . That the aforesaid right of way is the shortest, most convenient and the lenerous leading to the road and being used by the plaintiff's predecessors-in-interest from the very incept.

he evidence clearly shows that the property of private respondent is hemmed in by the estates of oersons including that of petitioner; that she offered to pay P200.00 per square meter for her right of wagreed between her and petitioner; that she did not cause the isolation of her property; that the right of wahe least prejudicial to the servient estate. 14 These facts are confirmed in the ocular inspection report oferk of court, more so that the trial court itself declared that "[t]he said properties of Antonio Quimen were purchased by plaintiff Yolanda Quimen Oliveros were totally isolated from the public highway and tppears an imperative need for an easement of right of way to the public highway." 15

etitioner finally insists that respondent court erroneously concluded that the right of way proposed by priespondent is the least onerous to the parties. We cannot agree. Article 650 of the New Civil Code explitates that the easement of right of way shall be established at the point least prejudicial to the servient esnd, insofar as consistent with this rule, where the distance from the dominant estate to a public highway e the shortest. The criterion of least prejudice to the servient estate must prevail over the criterion of shorstance although this is a matter of judicial appreciation. While shortest distance may ordinarily imply lrejudice, it is not always so as when there are permanent structures obstructing the shortest distance; wn the other hand, the longest distance may be free of obstructions and the easiest or most convenienass through. In other words, where the easement may be established on any of several tenemurrounding the dominant estate, the one where the way is shortest and will cause the least damage she chosen. However, as elsewhere stated, if these two (2) circumstances do not concur in a single tenemhe way which will cause the least damage should be used, even if it will not be the shortest. 16 This isest.

n the trial court, petitioner openly admitted —

Q. You testified during your direct examination about this plan, kindly go over this and please point to uhat portion of this plan is the house or store of the father of the (plaintiff )?

. This one, sir (witness pointed a certain portion located near the proposed right of way).

xx xxx xxx



Q. Now, you will agree with me . . . that this portion is the front portion of the lot owned by the father of aintiff and which was (sic ) occupied by a store made up of strong materials?

. It is not true, sir.

Q. What materials does (sic ) this store of the father of the plaintiff made of?

. Hollow blocks and the side is made of wood, sir.

xx xxx xxx

Q. Just before your brother disposed that 1/2 portion of the lot in question, what right of way does ( sic ) he reaching the public road, kindly point to this sketch that he is (sic ) using in reaching the public road?

. In my property, sir.

Q. Now you will agree with me . . . the main reason why your brother is ( sic ) using this property is becahere was a store located near this portion?

. Yes, and according to the father of Yolanda there is no other way than this, sir. 17

he trial court found that Yolanda's property was situated at the back of her father's property and held here existed an available space of about nineteen (19) meters long which could conveniently serve as a f way between the boundary line and the house of Yolanda's father; that the vacant space ended at theack of Sotero's store which was made of strong materials; that this explained why Yolanda requesteetour to the lot of Anastacia and cut an opening of one (1) meter wide and five (5) meters long to server right of way to the public highway. But notwithstanding its factual observations, the trial court concludthough erroneously, that Yolanda was not entitled to a right of way on petitioner's property since a de

hrough it would not make the line straight and would not be the route shortest to the public highway.

n applying Art. 650 of the New Civil Code, respondent Court of Appeals declared that the proposed rigay of Yolanda, which is one (1) meter wide and five (5) meters long at the extreme right of petitionroperty, will cause the least prejudice and/or damage as compared to the suggested passage throughroperty of Yolanda's father which would mean destroying the sari sari store made of strong materials. Absny showing that these findings and conclusion are devoid of factual support in the records, or arearingly erroneous, this Court accepts and adopts them. As between a right of way that would demolis

tore of strong materials to provide egress to a public highway, and another right of way which althoonger will only require an avocado tree to be cut down, the second alternative should be preferred. After a not the main function of this Court to analyze or weigh the evidence presented all over again whereetition would necessarily invite calibration of the whole evidence considering primarily the credibilititnesses, existence and relevancy of specific surrounding circumstances, their relation to each other,

he probabilities of the situation. 18 In sum, this Court finds that the decision of respondent appellate couhoroughly backed up by law and the evidence.

WHEREFORE, no reversible error having been committed by respondent Court of Appeals, the petitioENIED and the decision subject of review is AFFIRMED. Costs against petitioner.

O ORDERED.



adilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.

.R. No. 175510 July 28, 2008

POUSES VICTOR VALDEZ AND JOCELYN VALDEZ, represented by their Attorney-In-Fact, VIRGALDEZ, Petitioners,s.POUSES FRANCISCO TABISULA AND CARIDAD TABISULA, Respondents.

E C I S I O N

ARPIO MORALES, J.:

etitioner-spouses Victor and Jocelyn Valdez purchased via a January 11, 1993 Deed of Absolute Sale 1

eed) from respondent-spouses Francisco Tabisula and Caridad Tabisula a 200 square meter (sq.m.) porhe subject property) of a 380 sq. m. parcel of land located in San Fernando, La Union, which 380 sqarcel of land is more particularly described in the deed as follows:

parcel of land classified as residential lot, bounded on the North by Lot No. 25569, on the East, by Lot47, 251, on the South, by a Creek and on the West, by Lot No. 223-A, declared under Tax Decl. No. 528ith an area of 380 square meters, more or less, and assessed at P 17100.00 for the current year. It is

egistered under Act 496 nor under the Spanish Mortgage Law. (Emphasis and underscoring supplied)

he pertinent portions of the deed read:

x x x

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

x x x

hat now and hereinafter, said VENDEE-SPOUSES VICTOR and JOECELYN [sic] VALDEZ shall bebsolute owners of the said 200 sq. meters, eastern portion and that we shall warrant and forever defend twnership of the same against the claims of all persons whomsoever; they shall be provided a 2 1/2 me

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

x x.x (Emphasis and underscoring supplied)

espondents subsequently built a concrete wall on the western side of the subject property. 2 Believinghat side is the intended road right of way mentioned in the deed, petitioners, through their representaeported the matter to the barangay for mediation and conciliation. Respondents failed to attendonferences scheduled by the barangay, however, drawing petitioners to file in April 1999 or more than

http://lawphil.net/judjuris/juri2008/jul2008/gr_175510_2008.html#fnt1






ears after the execution of the deed a Complaint for Specific Performance with Damages3 agaespondents before the Regional Trial Court (RTC) of San Fernando City, La Union.

n their complaint, petitioners alleged that they purchased the subject property on the strength of respondessurance of providing them a road right of way. They thus prayed that respondents be ordered to provideubject property with a 2½-meter wide easement and to remove the concrete wall blocking the same. 4

espondents, in their Answer with Compulsory Counterclaim (for damages and attorney’s fees),5 averredhe 2 ½-meter easement should be taken from the western portion of the subject property and not fheirs;6 and petitioners and their family are also the owners of two properties adjoining the subject prophich adjoining properties have access to two public roads or highways – the bigger one which adjoinurgos St. on the north, and the smaller one which abuts an existing barangay road on the north. 7

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

ranch 26 of the RTC of San Fernando dismissed petitioners’ complaint and granted respondeounterclaim by Decision10 of March 18, 2005, the dispositive portion of which reads:

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

) P100,000.00 as moral damages;

) P50,000.00 as exemplary damages;

) P50,000.00 as attorney’s fees;

) P30,000.00 as expenses of litigation; and

) To pay the costs.

O ORDERED.11 (Underscoring supplied)

n appeal by petitioners, the Court of Appeals, by Decision of May 29, 2006, 12 affirmed that of the trial cholding that the deed only conveyed ownership of the subject property to petitioners, and that the refere

herein to an easement in favor of petitioners is not a definite grant-basis of a voluntary easement of righay.13

he appellate court went on to hold that petitioners are neither entitled to a legal or compulsory easemenght of way as they failed to present circumstances justifying their entitlement to it under Article 649 ofivil Code.14

etitioners’ motion for reconsideration15 having been denied by the Court of Appeals by Resolutioovember 15, 2006, they filed the present petition for review on certiorari faulting the trial [sic] court




























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

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

I. . . . IN AWARDING MORAL AND EXEMPLARY DAMAGES TO THE RESPONDENTS.16 (Underscoupplied)

n easement or servitude is "a real right constituted on another’s property, corporeal and immovablertue of which the owner of the same has to abstain from doing or to allow somebody else to do sometn his property for the benefit of another thing or person." 17 The statutory basis of this right is Article 61

he Civil Code which reads:

rt. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of anommovable belonging to a different owner.

he immovable in favor of which the easement is established is called the dominant estate; that whicubject thereto, the servient estate.

here are two kinds of easements according to source – by law or by the will of the owners. So Article 61he Civil Code provides:

rt. 619. Easements are established either by law or by the will of the owners. The former are called legalhe latter voluntary easements.

rom the allegations in petitioners’ complaint, it is clear that what they seek to enforce is an alleged granhe deed by respondents of an easement reading: "they shall be provided a 2 ½ meters wide road righay on the western side of their lot but which is not included in this sale."

rticle 1358 of the Civil Code provides that any transaction involving the sale or disposition of real propmust be in writing.18 The stipulation harped upon by petitioners that they "shall be provided a 2 ½ meters woad right-of-way on the western side of their lot but which is not included in this sale" is not a dispositioeal property. The proviso that the intended grant of right of way is "not included in this sale" could only mhat the parties would have to enter into a separate and distinct agreement for the purpose. 19 The use oord "shall," which is imperative or mandatory in its ordinary signification, should be construed as meermissive where, as in the case at bar, no public benefit or private right requires it to be given an impera

meaning.20

esides, a document stipulating a voluntary easement must be recorded in the Registry of Property in oot to prejudice third parties. So Articles 708 and 709 of the Civil Code call for, viz:

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

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













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

rt. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, whicurrounded by other immovables pertaining to other persons, and without adequate outlet to a pghway, is entitled to demand a right of way through the neighboring estates, after payment of the prodemnity.

x x x

his easement is not compulsory if the isolation of the immovable is due to the proprietor’s own aUnderscoring supplied)

rt. 650. The easement of right of way shall be established at the point least prejudicial to the servient esnd, insofar as consistent with this rule, where the distance from the dominant estate to a public highway e the shortest. (Underscoring supplied)

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

s found, however, by the trial court, which is supported by the Sketch23 (Exhibit "B"; Exhibit "1") ofocation of the lots of the parties and those adjoining them, a common evidence of the parties, petitionersheir family are also the owners of two properties adjoining the subject property which have access toublic roads or highways.24

ince petitioners then have more than adequate passage to two public roads, they have no right to demhe grant by respondents of an easement on the "western side of [respondents’] lot."

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

especting the grant of damages in favor of respondents by the trial court which was affirmed by ppellate court, the Court finds the same baseless.1avvphi1

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
















n respondents’ case, they predicated their Counterclaim for damages on general allegations of sicknumiliation and embarrassment, without establishing bad faith, fraud or ill-motive on petitioners’ part.28

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

x x x

RTICLE 199. Penalty for Refusal or Failure of Any Party or Witness to Appear before the Lupon or Pang

— Refusal or willful failure of any party or witness to appear before the lupon or pangkat in compliance ummons issued pursuant to this Rule may be punished by the city or municipal court as for indirect contef court upon application filed therewith by the lupon chairman, the pangkat chairman, or by any ofontending parties. Such refusal or willful failure to appear shall be reflected in the records of the luecretary or in the minutes of the pangkat secretary and shall bar the complainant who fails to appear, eeking judicial recourse for the same course of action, and the respondent who refuses to appear, from fny counterclaim arising out of, or necessarily connected with the complaint.

x x x (Emphasis and underscoring supplied)

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

x x x

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

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

x x x (Underscoring supplied)

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

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

WHEREFORE, the May 29, 2006 Decision and November 15, 2006 Resolution of the Court of AppealsMODIFIED in that the grant of the Counterclaim of respondents, Spouses Francisco Tabisula and Car

abisula, is reversed and set aside. In all other respects, the challenged decision is AFFIRMED.

osts against petitioners.

O ORDERED.

ONCHITA CARPIO MORAssociate Justice

WE CONCUR:









EONARDO A. QUISUMBssociate Juhairperson

DANTE O. TINGA Associate Justice

PRESBITERO J.VELASCO, JR.

Associate Justice

RTURO D. BR

ssociate Justice

Width of an easement of right of way

.R. No. 77628 March 11, 1991

OMAS ENCARNACION, petitioner,s.HE HONORABLE COURT OF APPEALS and THE INTESTATE ESTATE OF THE LATE EUSEBIOAGUN and THE HEIRS OF THE LATE ANICETA MAGSINO VIUDA DE SAGUN,* respondents.

steban M. Mendoza for petitioner.

Oscar Gozos for private respondents.

FERNAN, C.J.:p

resented for resolution in the instant petition for review is the not-so-usual question of whether oretitioner is entitled to a widening of an already existing easement of right-of-way. Both the trial court andppellate Court ruled that petitioner is not so entitled, hence the recourse to this Court. We reverse.

he facts are undisputed.

etitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta Magsino Viuda de Sagunhe owners of two adjacent estates situated in Buco, Talisay, Batangas. ** Petitioner owns the domistate which has an area of 2,590 square meters and bounded on the North by Eusebio de Sagun

Mamerto Magsino, on the south by Taal Lake, on the East by Felino Matienzo and on the West by PeMatienzo. Private respondents co-own the 405-square-meter servient estate which is bounded on the N

y the National Highway (Laurel-Talisay Highway), on the South by Tomas Encarnacion, on the EasMamerto Magsino and on the West by Felipe de Sagun. In other words, the servient estate stands betwhe dominant estate and the national road.

rior to 1960, when the servient estate was not yet enclosed with a concrete fence, persons going to

ational highway just crossed the servient estate at no particular point. However, in 1960 when priespondents constructed a fence around the servient estate, a roadpath measuring 25 meters long and ameter wide was constituted to provide access to the highway. One-half meter width of the path was taom the servient estate and the other one-half meter portion was taken from another lot owned by Mam

Magsino. No compensation was asked and non was given for the portions constituting the pathway. 1



was also about that time that petitioner started his plant nursery business on his land where he also hadbode. He would use said pathway as passage to the highway for his family and for his customers.

etitioner's plant nursery business through sheer hard work flourished and with that, it became more more difficult for petitioner to haul the plants and garden soil to and from the nursery and the highway with

se of pushcarts. In January, 1984, petitioner was able to buy an owner-type jeep which he could useansporting his plants. However, that jeep could not pass through the roadpath and so he approachedervient estate owners (Aniceta Vda. de Sagun and Elena Romero Vda. de Sagun) and requested that ell to him one and one-half (1 1/2) meters of their property to be added to the existing pathway so as to aassage for his jeepney. To his utter consternation, his request was turned down by the two widows

urther attempts at negotiation proved futile.

etitioner then instituted an action before the Regional Trial Court of Batangas, Branch 6 (Tanauan) to she issuance of a writ of easement of a right of way over an additional width of at least two (2) meters ovee Saguns' 405-square-meter parcel of land. 2

uring the trial, the attention of the lower court was called to the existence of another exit to the highway, ghty (80) meters away from the dominant estate. On December 2, 1985, the lower court rendered judgmsmissing petitioner's complaint. It ruled:

is clear, therefore, that plaintiff at present has two outlets to the highway: one, through the defendants' ln a one meter wide passageway, which is bounded on both sides by concrete walls and second, throughried river bed eighty meters away. The plaintiff has an adequate outlet to the highway through the dried red where his jeep could pass.

he reasons given for his claim that the one-meter passageway through defendants' land be widened tond one-half meters to allow the passage of his jeep, destroying in the process one of the concrete fennd decreasing defendants' already small parcel to only about 332.5 square meters, just because it is neo the highway by 25 meters compared to the second access of 80 meters or a difference of only 65 mend that passage through defendants' land is more convenient for his (plaintiffs) business and family useot among the conditions specified by Article 649 of the Civil Code to entitle the plaintiff to a right of wayhe passage of his jeep through defendant's land. 3

n appeal, the Court of Appeals affirmed the decision of the trial court on January 28, 1987 and rejecetitioner's claim for an additional easement.

n sustaining the trial court, the Court of Appeals opined that the necessity interposed by petitioner wasompelling enough to justify interference with the property rights of private respondents. The Appellate Cook into consideration the presence of a dried river bed only eighty (80) meters away from the dominstate and conjectured that petitioner might have actually driven his jeep through the river bed in order too the highway, and that the only reason why he wanted a wider easement through the De Sagun's esas that it was more convenient for his business and family needs.

fter evaluating the evidence presented in the case, the Court finds that petitioner has sufficiently establiss claim for an additional easement of right of way, contrary to the conclusions of the courts a quo.

While there is a dried river bed less than 100 meters from the dominant tenement, that access is groadequate. Generally, the right of way may be demanded: (1) when there is absolutely no access to a pu



ghway, and (2) when, even if there is one, it is difficult or dangerous to use or is grossly insufficient. Inresent case, the river bed route is traversed by a semi-concrete bridge and there is no ingress nor egrom the highway. For the jeep to reach the level of the highway, it must literally jump four (4) to five

meters up. Moreover, during the rainy season, the river bed is impassable due to the floods. Thus, it can e used at certain times of the year. With the inherent disadvantages of the river bed which make passfficult, if not impossible, it is if there were no outlet at all.

Where a private property has no access to a public road, it has the right of easement over adjacent servstates as a matter of law. 4

With the non-availability of the dried river bed as an alternative route to the highway, we transfer our atteno the existing pathway which straddles the adjoining properties of the De Sagun heirs and Mamerto Mags

he courts below have taken against petitioner his candid admission in open court that he needed a wathway for the convenience of his business and family. (TSN, August 2, 1985, pp. 24-26). We canegrudge petitioner for wanting that which is convenient. But certainly that should not detract from the mressing consideration that there is a real and compelling need for such servitude in his favor.

rticle 651 of the Civil Code provides that "(t)he width of the easement of right of way shall be that whicufficient for the needs of the dominant estate, and may accordingly be changed from time to time." Thaken to mean that under the law, it is the needs of the dominant property which ultimately determineidth of the passage. And these needs may vary from time to time. When petitioner started out as a pursery operator, he and his family could easily make do with a few pushcarts to tow the plants to the natioghway. But the business grew and with it the need for the use of modern means of conveyance or transp

Manual hauling of plants and garden soil and use of pushcarts have become extremely cumbersome hysically taxing. To force petitioner to leave his jeepney in the highway, exposed to the elements and tosk of theft simply because it could not pass through the improvised pathway, is sheer pigheadedness onart of the servient estate and can only be counter-productive for all the people concerned. Petitioner shoot be denied a passageway wide enough to accomodate his jeepney since that is a reasonable ecessary aspect of the plant nursery business.

We are well aware that an additional one and one-half (1 1/2) meters in the width of the pathway will redhe servient estate to only about 342.5 square meters. But petitioner has expressed willingness to exchan equivalent portion of his land to compensate private respondents for their loss. Perhaps, it would be or respondents to take the offer of petitioner seriously. 5 But unless and until that option is consideredaw decrees that petitioner must indemnify the owners of the servient estate including Mamerto Magsino fhose adjoining lot 1/2 meter was taken to constitute the original path several years ago. Since the easem

o be established in favor of petitioner is of a continuous and permanent nature, the indemnity shall consishe value of the land occupied and the amount of the damage caused to the servient estate pursuant to Ar49 of the Civil Code which states in part:

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

hould this easement be established in such a manner that its use may be continuous for all the needs ofominant estate, establishing a permanent passage, the indemnity shall consist of the value of the ccupied and the amount of the damage caused to the servient estate.



xx xxx xxx

WHEREFORE, in conformity with the foregoing discussion, the appealed decision of the Court of Appated January 28, 1987 is REVERSED and SET ASIDE. Petitioner Tomas Encarnacion is hereby declantitled to an additional easement of right of way of twenty-five (25) meters long by one and one-half (1

meters wide over the servient estate or a total area of 62.5 square meters after payment of the prodemnity.

O ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.

asement of party wall

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

OMINGO LAO and ALBINA DE LOS SANTOS, applicants-appellants,s.HE HEIRS OF LORENZA ALBURO, objectors-appellees.

Medina, Gabriel and Diaz for appellauenaventura Reyes for appellees.

ORRES, J.:

his appeal by bill of exceptions was taken from the judgment of August 17, 1914, in which the honoradge of the Court of Land Registration decreed that, after the description of the parcel of land No. 2 shave been amended in the manner indicated, the parcels of land in the case at bar should be registered iname of the applicants, Domingo Lao and his wife Albina de los Santos. It was held in this decree that

all, called a stone wall in the plan of the said parcel No. 2, was a party wall between the said parcel androperty adjoining it on the north-west. Counsel for the applicants excepted to this finding and moved few trial. His motion was overruled whereupon the applicants excepted and duly filed their bill of exceptihich was approved and transmitted to this court.

n May 8, 1914, counsel for the said husband and wife filed a written application in the Court of Legistration for the registration of four parcels of land, together with the buildings thereon, of which taimed to be the absolute owners. The first of said parcels, Lot No. 1, comprising a house and three ouildings known as accesorias, all of strong materials, is situated in Calle Juan Luna, formerly Calle Jolnloague of the district of Binondo, and has an area of 175.08 square meters; the second parcel, Lot Noomprising a house of strong materials erected thereon, likewise situated in Calle Juan Luna, formerly C

olo or Anloague, Binondo, is 212.05 square meters in area; the third parcel of land, Lot No. 3, locatealle Elcano, San Nicolas, Binondo, and measures 596.06 square meters in area; and the fourth parceand, Lot No. 2, containing two buildings of strong materials, one of them of three stories, situated in Clcano, San Nicolas, Binondo, 813.01 square meters in area. The street numbers of the two latter propeppear in the said judgment, and their boundaries are given in both the said plan No. 1 and in their respecechnical descriptions.



he application recites that the first of the four above-mentioned properties was appraised in the ssessment, the land at P4,664 and the buildings at P4,000; the second parcel, the land at P5,492 anduildings at P3,600; the third parcel, the land at P6,329 and the buildings at P4,000; and the fourth parcel

and at P8,529 and the buildings at P22,500; and that the said properties are all unencumbered and noas any right or share therein except the applicants, who acquired them by purchase, the first parcel felix Zalvidea, by a public instrument of June 11, 1912; the second parcel, from Clara Lichauco and usband Catalino Arevalo, by a public instrument of September 12, 1912; the third parcel, from Antobraham Brimo, by a public instrument of March 28, 1911; and the fourth parcel, from Marcela Lao, bublic instrument of April 17, 1914. The application recited the names of the tenants who occupy the

hree properties and states that the applicants occupy the fourth. The names and addresses of the ownerroprietors of the adjoining properties are also given.

fter due service of notice, counsel for the administrator of the estate of the deceased Lorenza Alburo fileourt a written objection, alleging that in the part of the application relative to the second parcel of the po. 1, a stone wall shown in that plan to be northeast of the said parcel had been improperly included;

his wall had belonged to the said Lorenza Alburo, for it had existed since March 8, 1881; that the princmbers of the building that had belonged to the said deceased had rested on it for more than thirty-five yend the latter's successors had been and were now in the quiet, peaceable and uninterrupted possessio

he said wall.

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

n the judgment appealed from it is held that the applicants, Domingo Lao and Albina de los Sanonclusively and satisfactorily proved that they were, and had been for about forty years, the lawful ownnd possessors of the four properties sought to be registered; wherefore the court decreed the registra

hereof in their names, but ordered that record be made in the decree that the wall marked on the plan ofarcel No. 2 as a stone wall was a party wall.

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

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

rticle 573 of the Civil Code also declares that it shall be understood that there are exterior signs wonflict with the easement of party wall, when, among other circumstances, the entire wall is built on on



he lots and not on the line dividing the two adjoining parcels; when the dividing wall, being constructetone and cement, has stone projecting at intervals from the surface on one side only and not on the otnd when it supports joists, beams, floors, and the roof timbers of one of the houses but not of the adjoinuilding.1awphil.net

he record shows it to have been duly proven that the enclosing wall of Lot No. 2 of the plan Exhibelonging to the applicants, is much higher than the adjoining building of the objectors; that along the tohe said wall there is a gutter which catches the rain water from the eaves of the roof of the applicauilding and carries it thence to Calle Juan Luna through an iron pipe fastened to the said wall; that one-f the top of the said wall is covered by the roof of the applicants' building; that the supports of the said roject toward the side of the applicants' land and that none of the buttresses are on the side of the object

ot; that the stones of the wall in dispute are bound or inset in the rear enclosing wall of the applicaroperty in such wise that the two walls that inclose the lot form but a single construction, the exterior signhich show that the wall in question is not a party wall, but that it forms a part of the applicant's building elongs to them.

esides the signs just referred to, the evidence also shows that on the objectors' land and flankingsputed wall there is another and lower wall which has no connection with the one in question. Cayetrguelles, a master builder, who climbed to the top of the wall in question and examined it, testified thatforesaid drain caught the rain water from the eaves of the applicants' roof, and that from the outsidevision or space between the applicants' wall and the wall on the objectors' land could be seen; that the loart of this latter wall had two arch like hollows; that according to the testimony of the objector, Ire

Mendoza, the latter wall was that of an old building that had belonged to the said deceased and westroyed by an earthquake; and that in the rear of the objectors' land were the ruins of a wall which had anked the wall in dispute, and these ruins, according to the said witness Mendoza were what was left ofall of a latrine formerly existing there.

hese exterior signs contrary to the existence of a party-wall easement cannot be offset by the circumstahat the dispute wall projects into Calle Juan Luna 74 centimeters farther than the applicants' building, either can the fact that the face of this projecting wall is on the same street line as the objectors' buildinghe reason that, in view of the said signs contrary to the existence of the easement of party wall, the projecf the wall does not prove that it was a party wall belonging in common to the applicants and the objecnd that the latter shared in the ownership thereof.

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

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

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

rellano, C.J., Johnson, Carson, Moreland, Trent and Araullo, JJ., concur.



asement of light and view

.R. No. L-14652 June 30, 1960

UAN GARGANTOS, petitioner,s.AN YANON and THE COURT OF APPEALS, respondents.

ose T. Nery for petitio

onstantino P. Tadena for respondents.

UTIERREZ DAVID, J .:

uan Gargantos appeals by certiorari from the decision of the Court of Appeals reversing the judgment oourt of First Instance of Romblon.

he record discloses that the late Francisco Sanz was the former owner of a parcel of land containing quare meters, with the buildings and improvements thereon, situated in the poblacion of Romblonubdivided the lot into three and then sold each portion to different persons. One portion was purchaseuillermo Tengtio who subsequently sold it to Vicente Uy Veza. Another portion, with the house of str

materials thereon, was sold in 1927 to Tan Yanon, respondent herein. This house has on its northeasde, doors and windows over-looking the third portion, which, together with the camarin and small builhereon, after passing through several hands, was finally acquired by Juan Gargantos, petitioner herein.

n April 23, 1955, Gargantos applied to the Municipal Mayor for a permit to demolish the roofing of theamarin. The permit having been granted, Gargantos tore down the roof of the camarin. On May 11, 1argantos asked the Municipal Council of Romblon for another permit, this time in order to constru

ombined residential house and warehouse on his lot. Tan Yanon opposed approval of this application.

ecause both the provincial fiscal and district engineer of Romblon recommended granting of the buildermit to Gargantos, Tan Yanon filed against Gargantos an action to restrain him from constructing a build

hat would prevent plaintiff from receiving light and enjoying the view trough the window of his house, unuch building is erected at a distance of not less than three meters from the boundary line between the lotaintiff and defendant, and to enjoin the members of Municipal Council of Romblon from issuing

orresponding building permit to defendant. The case as against the members of the Municipal Council ubsequently dismissed with concurrence of plaintiff's council. After trial, the Court of First Instancomblon rendered judgment dismissing the complaint and ordering plaintiff to pay defendant the sum12,500.00 by way of compensatory, exemplary, moral and moderate damages.

n appeal, the Court of Appeals set aside the decision of the Court of First Instance of Romblon and enjoiefendant from constructing his building unless "he erects the same at a distance of not less than th

meters from the boundary line of his property, in conformity with Article 673 of the New Civil Code."

o Juan Gargantos filed this petition for review of the appellate Court's decision. The focal issue herehether the property of respondent Tan Yanon has an easement of light and view against the propertetitioner Gargantos.



he kernel of petitioner's argument is that respondent never acquired any easement either by title orescription. Assuredly, there is no deed establishing an easement. Likewise, neither petitioner norredecessors-in-interest have ever executed any deed whereby they recognized the existence ofasement, nor has there been final judgment to that effect. Invoking our decision in Cortes vs. Yu-Tibhil., 24), petitioner maintains that respondent has not acquired an easement by prescription because heever formally forbidden petitioner from performing any act which would be lawful without the easemence the prescriptive period never started.

is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and the doctrine in the Yu-Tibo cre not applicable herein because the two estates, that now owned by petitioner, and that owneespondent, were formerly owned by just one person, Francisco Sanz. It was Sanz who introdumprovements on both properties. On that portion presently belonging to respondent, he constructed a ho

such a way that the northeastern side thereof extends to the wall of the camarin on the portion elonging to petitioner. On said northeastern side of the house, there are windows and doors which serveassages for light and view. These windows and doors were in existence when respondent purchasedouse and lot from Sanz. The deed sale did not provide that the easement of light and view would nostablished. This then is precisely the case covered by Article 541, O.C.C (now Article 624, N.C.C) wrovides that the existence of an apparent sign of easement between two estates, established byroprietor of both, shall be considered, if one of them is alienated, as a title so that the easement will contictively and passively, unless at the time the ownership of the two estate is divided, the contrary is statehe deed of alienation of either of them, or the sign is made to disappear before the instrument is execuhe existence of the doors and windows on the northeastern side of the aforementioned house, is equiva

o a title, for the visible and permanent sign of an easement is the title that characterizes its existence (As. Florentino, 74 Phil., 403). It should be noted, however, that while the law declares that the easement icontinue" the easement actually arises for the first time only upon alienation of either estate, inasmucefore that time there is no easement to speak of, there being but one owner of both estates (Articles 5.C.C., now Articles 613, N.C.C).

We find that respondent Tan Yanon's property has an easement of light and view against petitionroperty. By reason of his easement petitioner cannot construct on his land any building unless he erectsdistance of not less than three meters from the boundary line separating the two estates.

Wherefore, the appealed decision is hereby affirmed with costs against petitioner.

aras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., and Barrera,oncur.

.R. No. 911 March 12, 1903

MAXIMO CORTES, plaintiff-appellant,s.OSE PALANCA YU-TIBO, defendant-appellant.

elipe G. Calderon, for appellant.implicio del Rosario, for appellee.

MAPA, J.:



his suit was brought to obtain an injunction, in accordance with the provisions of section 162 to 172 ofode of Civil Procedure, for the purpose of restraining the continuation of certain buildings commenced byefendant. The court below issued a preliminary injunction during the trial, but, upon, rendering dgment, dissolved the injunction, with the costs against the plaintiff. The latter excepted to this judgmnd assigns error:

n the trial the following facts were admitted without contradiction:

) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff, has certain windows thehrough which it receives light and air, said windows opening on the adjacent house, No. 63 of the satreet; (2) that these windows have been in the existence since the year 1843 and (3) that the defendantenant of the said house No. 63, has commenced certain work with the view to raising the roof of the housuch a manner that one-half of the windows in said house No. 65 has been covered, thus deprivinguilding of a large part of the air and light formerly received through the window. In its decision the celow practically finds the preceding facts, and further finds that the plaintiff has not proven that he hasny formal act, prohibited the owner of house No. 63, from making improvements of any kind therein atme prior to the complaint.

he contention of the plaintiff is that by the constant and uninterrupted use of the windows referred to aburing a period of fifty-nine years he acquired from prescription an easement of light in favor of the house5, and as a servitude upon house No. 63, and, consequently, has acquired the right to restrain the makinny improvements in the latter house which might in any manner be prejudicial to the enjoyment of the asement. He contends that the easement of light is positive; and that therefore the period of possessionhe purposes of the acquisition of a prescriptive title is to begin from the date on which the enjoyment ofame commenced, or, in other words, applying the doctrine to this case, from the time that said windows wpened with the knowledge of the owner of the house No. 63, and without opposition on this part.

he defendant, on the contrary, contends that the easement is negative, and that therefore the time forrescriptive acquisition thereof must begin from the date on which the owner of the dominant estate may hrohibited, by a formal act, the owner of the servient estate from doing something which would be lawfuor the existence of the easement.

he court below in its decision held in the easement of light is negative, and this ruling has been assignedhe plaintiff as error to be corrected by this court.

building may receive light in various manners in the enjoyment of an easement of light, becausepenings through which the light penetrates may be made in one's own wall, in the wall of one's neighbo a party wall. The legal doctrine applicable in either one of these cases is different, owing to the fact tthough anyone may open windows in his own wall, no one has a right to do so in the wall of another with

he consent of the owner, and it is also necessary, in accordance with article 580 of the Civil Code, to obhe consent of the other coowner when the opening is to be made in a party wall.

his suit deals with the first case; that is, windows opened in a wall belonging to the wife of the plaintiff, anthis 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 ownerherent in the right of property, which, under article 348 of the Civil Code, empowers him to deal withroperty as he may see fit, with no limitations other than those established by law. By reason of the fact



uch an act is performed wholly on a thing which is wholly the property of the one opening the window, it dot in itself establish any easement, because the property is used by its owner in the exercise of dominnd not as the exercise of an easement: "For a man," says law 13, title 31, third partida, "should not use

which belongs to him as if it were a service only, but as his own property ." Coexistent with this right isght of the owner of the adjacent property to cover up such windows by building on his own land or raisinall contiguously to the wall in which the windows are opened (art. 581 of the same Code), by virtue of

eciprocity of rights which should exist between abutting owners, and which would cease to exist if one coo what he pleased on his property and the other could not do the same on his. Hence it is that the use ofindows opened in a wall of one's own property, in the absence of some covenant or express agreeme

he contrary, is regarded as an act of mere tolerance on the part of the owner of the abutting propudgments of the supreme court of Spain of the 17th of May, 1876; 10th of May, 1884; 30th of May, 18nd does not create any right to maintain the windows to the prejudice of the latter (judgment of the supreourt of Spain of the 13th of June, 1877). The mere toleration of such an act does not imply on the part ofbutting owner a waiver of his right to freely build upon his land as high as he may see fit, nor does it availwner of the windows for the effects of possession according to article 1942 of the Civil Code, because it

mere possession at will. From all this it follows that the easement of light with respect to the openings madne's own edifice does not consist precisely in the fact of opening them or using them, inasmuch as they me covered up at any time by the owner of the abutting property, and, as Manresa says in his commentan the Civil Code, "there is no true easement as long as the right to impede its use exists ." The easemeally consists of in prohibiting or restraining the adjacent owner from doing anything which may tend to cur interrupt the light; in short, it is limited to the obligation of not impeding the light ( ne luminibus officiahe latter coincides in its effects, from this point of view, with the obligation of refraining from increasingeight of a building (altius non tollendi ), which, although it constitutes a special easement, has for its objecmes, the prevention of any interruption of the light enjoyed by the adjacent owner.

will be readily observed that the owner of the servient estate subject to such easement is undebligation whatsoever to allow anything to be done on his tenement, nor to do anything there himself, bmply restrained from doing anything thereon which may tend to cut off the light from the dominant esthich he would undoubtedly be entitled to do were it not for the existence of the easement. If, then, the ondition is that which is peculiar to positive easements, and the second condition that which is peculiaegative easements, according to the definition of article 533 of the Civil Code, it is our opinion thatasement of lights in the case of windows opened in one's own wall is of a negative character, and, as suan not be acquired by prescription under article 538 of the Civil Code, except by counting the timossession from the date on which the owner of the dominant estate may, by a formal act have prohibitedwner of the servient estate from doing something which it would be lawful from him to do were it not forasement.

he supreme court of Spain, in its decisions upon this subject, has established these principles by a long f cases. In its judgment of May 14, 1861, the said court holds that "the prescription of the easement of ligoes not take place unless there has been some act of opposition on the part of the person attemptincquire such a right against the person attempting to obstruct its enjoyment." The easements of light ew," says the judgment of March 6, 1875, "because they are of a negative character, can not be acquiredprescriptive title, even if continuous, or although they may have been used for more than twenty-eight ye

the indispensable requisite for prescription is absent, which is the prohibition on the one part, andonsent on the other, of the freedom of the tenement which it is sought to charge with the easement." Idgment of June 13, 1877, it is also held that use does not confer the right to maintain lateral openingindows in one's own wall to the prejudice of the owner of the adjacent tenement, who, being entitled to mse of the soil and of the space above it, may, without restriction, build on his line or increase the heigh



xisting buildings, unless he has been " forbidden to increase the height of his buildings and to thus cuhe light ," and such prohibition has been consented to and the time fixed by law subsequently expired. ourt also holds that it is error to give the mere existence or use of windows in a wall standing wholly onand of one proprietor the creative force of true easement, although they may have existed from the mmemorial . Finally, the judgments of the 12th of November, 1899, and the 31st of May, 1890, hold thathis supreme court has decided, openings made in walls standing wholly on the land of one proprietor hich overlook the land of another exist by mere tolerance in the absence of an agreement to the contrnd can not be acquired by prescription, except by computing the time from the execution of some acossession which tends to deprive the owner of the tenement affected of the right to build thereon." Varther judgments might be cited, but we consider that those above mentioned are sufficient to demonstrateniformity of the decisions upon this point. It is true that the supreme court of Spain, in its decisionebruary 7 and May 5, 1896, has classified as positive easements of lights which were the object of the s which these decisions were rendered in cassation, and from these it might be believed at first glance

he former holdings of the supreme court upon this subject had been overruled. But this is not so, as a maf fact, inasmuch as there is no conflict between these decisions and the former decisions above cited.

n the first of the suits referred to, the question turned upon two houses which had formerly belonged toame owner, who established a service of light on one of them for the benefit of the other. These propeere subsequently conveyed to two different persons, but at the time of the separation of the property nothas said as to the discontinuance of the easement, nor were the windows which constituted the visible

hereof removed. The new owner of the house subject to the easement endeavored to free it fromcumbrance, notwithstanding the fact that the easement had been in existence for thirty-five years, leged that the owner of the dominant estate had not performed any act of opposition which might serve

tarting point for the acquisition of a prescriptive title. The supreme court, in deciding this case, on the 7tebruary, 1896, held that the easement in this particular case was positive, because it consisted in the acnjoyment of the light. This doctrine is doubtless based upon article 541 of the Code, which is of the followenor: "The existence of apparent sign of an easement between two tenements, established by the owneoth of them, shall be considered, should one be sold, as a title for the active and passive continuance ofasement, unless, at the time of the division of the ownership of both tenements, the contrary shouldxpressed in the deed of conveyance of either of them, or such sign is taken away before the executiouch deed."

he word "active" used in the decision quoted in classifying the particular enjoyment of light referreherein, presupposes on the part of the owner of the dominant estate a right to such enjoyment arising, inarticular case passed upon by that decision, from the voluntary act of the original owner of the two houy which he imposed upon one of them an easement for the benefit of the other. It is well known asements are established, among other cases, by the will of the owners. (Article 536 of the Code). It wact which was, in fact, respected and acquiesced in by the new owner of the servient estate, sinceurchased it without making any stipulation against the easement existing thereon, but, on the contrcquiesced in the continuance of the apparent sign thereof. As is stated in the decision itself, "It is a princf law that upon a division of a tenement among various persons -- in the absence of any mention inontract of a mode of enjoyment different from that to which the former owner was accustomed -- sasements as may be necessary for the continuation of such enjoyment are understood to subsist." It wi

een, then, that the phrase "active enjoyment" involves an idea directly opposed to the enjoyment which isesult of a mere tolerance on the part of the adjacent owner, and which, as it is not based upon an absolnforceable right, may be considered as of a merely passive character. Therefore, the decision in questioot in conflict with the former rulings of the supreme court of Spain upon the subject, inasmuch as it de



ith an easement of light established by the owner of the servient estate, and which continued in force ahe estate was sold, in accordance with the special provisions of article 541 of the Civil Code.

or is the other decision cited, of May 5, 1896, in conflict with the doctrine above laid down, because it reo windows opened in a party wall , and not in a wall the sole and exclusive property of the owner ofominant tenement, as in the cases referred to by the other decisions, and as in the case at bar. The reaor the difference of the doctrine in the one and the other case is that no part owner can, without the consf the other, make in a party wall a window or opening of any kind, as provided by article 580 of the ode. The very fact of making such openings in such a wall might, therefore, be the basis for the acquisf a prescriptive title without the necessity of any active opposition, because it always presupposesxpress or implied consent of the other part owner of the wall, which consent, in turn, implies the volunaiver 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 inral argument before the court, far from being contrary to it, is entirely in accord with the doctrine ofecisions above referred to. This law provides that "if anyone shall open a window in the wall of his neighhrough which the light enters his house," by this sole fact he shall acquire a prescriptive title to the easemf light, if the time fixed in the same law (ten years as to those in the country and twenty years absentees) expires without opposition on the part of the owner of the wall; but, with the exception of this cahat is to say, when the windows are not opened in the wall of the neighbor , the law referred to requires ondition to the commencement of the running of the time for the prescriptive acquisition of the easemhat "the neighbor be prohibited from raising his house, and from thereby interrupting the light." That is to e must be prohibited from exercising his right to build upon his land, and cover the window of the other. Trohibition, if consented to, serves as a starting point for the prescriptive acquisition of the easement. It is n indispensable requisite, therefore, in accordance with the law of the partidas, above mentioned, that sct of opposition be performed, in order that an easement may be acquired with respect to openings madne's own wall.

or a proper understanding of this doctrine, it is well to hold in mind that the Code of the partidas, as wehe Roman law, clearly distinguishes two classes of easements with respect to the lights of houses, as e seen in law 2 of title 31, of the third partida. One of them consists in "the right to pierce the wall of oeighbor to open a window through which the light may enter one's house" (equivalent to the so-caasement of luminum of the Romans); the other is "the easement which one house enjoys over anothereby the latter can not at any time be raised to a greater height than it had at the time the easement stablished, to the end at the light be not interrupted." (Ne luminibus officiatur .) For the prescricquisition of the former the time must begin, as we have seen, from the opening of the window ineighbor's wall. As to the second, the time commences from the date on which he was "prevented faising his house." Some of the judgments which establish the doctrine above laid down were rendered byupreme court of Spain interpreting and applying the above cited law 15, title 31, partida 3, and therefore an not in any sense be regarded as antagonistic to the law itself.

he question as to whether the windows of the house of the plaintiff are, or are not, so-called regulaindows, we consider of but little importance in this case, both because the authority of the decisions of

aw of the partidas, above cited, refers to all kinds of windows, and not to regulation windows solely, ecause the record does not disclose, nor has the appellant even stated, the requirements as to segulation windows under the law in operation prior to the Civil Code, which he asserts should be applied n which he relies to demonstrate that he has acquired by prescription the easement in question. Wespect to the watershed which, according to the plaintiff, exists over the window in question, the record d



ot disclose that the same has been destroyed by the defendant. He expressly denies it on page 7 ofrief, and affirms (p. 8) that the tenant of the appellant's property himself removed it, by reason of the noerved on him; on the other hand, the judgment of the court below contains no findings with respect to act, nor does it disclose the former existence of any such watershed. Furthermore, the opinion whichave formed with respect to this matter, in so far as we are able to understand the merits of the case, is his shed was a mere accessory of the window, apparently having no other purpose than that of protectingainst the inclemency of the weather; this being so, we are of opinion that it should follow the conditiohe window itself, in accordance with the legal maxim that the accessory always follows the principal. ppellant contends that the shed should be regarded as a projection within the provisions of article 582 ofode; but it is sufficient to observe that this article speaks of windows with direct views, balconies, or simrojections, in order to conclude that the article does not refer to such watersheds, which have notightest degree of similarity to balconies, nor are they constructed for the purpose of obtaining the view -- eing the subject-matter which this article expressly purports to control -- inasmuch as such sheds hather the effect of limiting the scope of the view than of increasing it.

he fact that the defendant did not cover the windows of the other house adjacent No. 63 at the timeovered the windows of the appellant, a fact which the latter adduces as proof of the recognition on the pahe former of the prescriptive acquisition of the easement of the light in favor of that house, which, accordo his statement, is under precisely the same conditions as the house of the plaintiff, does not necessmply, in our opinion, any such recognition, as it might be the result of a mere tolerance on the part of efendant. Certainly the fact of his tolerating the use by the owner of that house of such windows, suppohe facts to be as stated, does not carry with it as a result an obligation to exercise the same forbearance espect to the plaintiff; but whatever may be the legal status of the windows in the house referred to wespect to the house No. 63, we cannot pass upon the point, nor can we form suppositions concerning

matter for the purpose of drawing conclusions of any kind therefrom to support our opinion, for the simeason that it is not a point at issue in the case, and more especially because the defendant not only denhe existence of the alleged easement of light in favor of the house referred to, but, on the contrary, he affhat demand has been made that the windows in said house be closed, as may be seen on page 8 ofrief.

he point discussed in this trial being whether the plaintiff has acquired the easement which he seeknforce over the house of which the defendant is tenant, it is evident that the provisions of article 585 ofivil Code can not be invoked without taking for granted the very point at issue. This article refers to casehich, under any title, the right has been acquired to have direct views, balconies, or belvederes oontiguous property. The existence of such a right being the very point at issue, the supposition upon whe article rests is lacking, and it is therefore not in point.

s a result of the opinion above expressed, we hold:

. That the easement of light which is the object of this litigation is of a negative character, and thereertains to the class which can not be acquired by prescription as provided by article 538 of the Civil Coxcept by counting the time of possession from the date on which the owner of the dominant estate has, ormal manner, forbidden the owner of the servient estate to do an act which would be lawful were it nohe easement.

. That, in consequence thereof, the plaintiff, not having executed any formal act of opposition to the righhe owner of the house No. 63 Calle Rosario (of which the defendant is tenant), to make themprovements which might obstruct the light of the house No. 65 of the same street, the property of the wif



he appellant, at any time prior to the complaint, as found by the court below in the judgment assignedrror, he has not acquired, nor could he acquire by prescription, such easement of light, no matter how lonme have elapsed since the windows were opened in the wall of the said house No. 65, because the pehich the law demands for such prescriptive acquisition could not have commenced to run, the act with wmust necessarily commence not having been performed.

herefore, we affirm the judgment of the court below and condemn the appellant to the payment oamages caused to the plaintiff, and to the payment of the costs of this appeal. So ordered.

rellano, C.J., Cooper, Willard, and Ladd, JJ., concur.orres, J., did not sit in this case.

ON MOTION FOR A REHEARING.

he plaintiff asks for a rehearing of the decision of the court of March 12th last upon the ground that the sontains error:

irst, because the decision holds that the window opened in the plaintiff's own wall and watershed doonstitute the continuous and apparent easements of prospect, light, and ventilation, or jus projitiendi andpillitiendi , this ruling being in opposition to the provisions of laws 12, 14, and 15, title 31, third partida,rticles 530, 532, 533, 537, 538, 582, and 585 of the Civil Code.

his allegation is entirely unfounded, inasmuch as the decision of the court contains no declaration ahether the windows and watershed do or do not constitute continuous and apparent easements, orrojitiendi and jus spillitiendi . These questions were not drawn into issue by the complaint, and thereforeecision thereon one way or the other would have been mere dicta. What the court did hold was thatasement of light, when it is sought to claim such benefit from a window opened in one's own wall, as d

he appellant with respect to the tenement of the defendant, belongs to the class of negative easements, hat on hold on that account the time of possession for prescriptive acquisition of the title thereto musounted, not from the time of the opening of the windows, but from the time at which the owner thereof xecuted some act of opposition tending to deprive the owner of the servient tenement of his right, under

aw, build upon it to such height as he might see fit in the legitimate use of his rights of ownership. Wespect to the watershed, the court held that the shed in question in the case is not included within the cf projections referred to in article 582 of the Civil Code, and certain it is that neither this article nor any ofther provisions of law cited by the appellant in his motion papers established any doctrine contrary to

aid down in the decision, either with regard to the watershed or with respect to the windows. It isecessary to say anything further upon this point. It is sufficient to read the text of the laws cited to reachonclusion that the assertion made by the appellant in his motion papers is entirely gratuitous.

rticle 582 provides that windows with direct views, balconies, or other similar projections opening uponenement of one's neighbor are not permissible unless there are two meters distance between the wahich such openings are constructed and the adjacent tenement. From this the appellant drawsonclusion that he who opens windows in his own wall without respecting the distance mentioned doesxercise an act of ownership, as stated in the decision, inasmuch as he violates an express provisions of

aw.

he conclusion reached is evidently false. The appellant confounds the facts with the law -- an acwnership with the right of ownership. The owner of a thing does not cease to be such owner because in



manner of use or enjoyment thereof he violates some provision of law. The acts which he performs, in pinion, even if abusive or contrary to law, are in a strict sense acts of ownership, acts in the exercisominion, because this character is not derived from a greater or less degree of compliance withrovisions of law, but from the existence of the status of owner on the part of the person who exercises scts. In order that the act performed by the owner of a wall in opening windows therein be a true acwnership it is a matter of indifference whether or not the distance prescribed by article 582 of the Code een respected, although, considered from a legal point of view, it might be an illegal act, as not complith the conditions imposed by law.

he doctrine laid down by law 13, title 31, partida 3, cited in the decision, to the effect that "a man shouldse that which belongs to him as if it were a service only, but as his own property" is of general applicand does not refer to the easements which is a property owner may establish for the benefit of his heirs, arroneously believed by the appellant. The very same law provides that easements which "a man impopon his house must be for the benefit of the tenement or thing of another, and not that of his own tenemend this is because things are of service to their owner by reason of dominion, and not in the exercise ght of easement. "Res sua," says a legal maxim, "nemini jure servitutis servit ."

he provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated procedureffect with respect to possession is applicable as much as to the prescription of real rights as to rescription of the fee, it being a glaring and self-evident error to affirm the contrary, as does the appellas motion papers. Possession is the fundamental basis of the prescription. Without it no kind of prescrippossible, not even the extraordinary. Consequently, if acts of mere tolerance produce no effect with res

o possession, as that article provides, in conformity with article 444 of the same Code, it is evident that an produce no effect with respect to prescription, whether ordinary or extraordinary. This is true whetherrescriptive acquisition be of a fee or of real rights, for the same reason holds in one and the other case; , that there has been no true possession in the legal sense of the word. Hence, it is because the usindows in one's own wall is the result of a mere tolerance that the supreme court of Spain, in its judgmenune 13, 1877, has held that such user lacks the creative force of a true easement, although continuedme immemorial . The citation of article 1959 of the Civil Code and of law 21, title 29, partida 3, made byetitioner, is therefore not in point, because both of these provisions of law, which refer to the extraordieriod of prescription presuppose possession as a necessary requisite, even if without either just title or gaith.

he second error assigned is that in the decision the court holds that the gravamina constituted byindow and the projection are negative easements, against the provisions of article 533, which define ts positive, which definition, he adds, is supported by the judgments of the supreme court of Spaiebruary 7 and May 5, 1896, cited in paragraph 12 of the said decision, which judgments declare thatasement resulting from a window is positive.

is not true that article 533 of the Civil Code says that the easement of light is positive, because it dothing more than give in general terms the definition of positive easements and negative easements, witttempting to specify whether the easement of lights pertains to the first or to the second class. We heclared that the easement is negative, having in mind this very definition of the Code and the doctstablished by the judgments of the supreme court of Spain which have been cited in our opinion. terpretation which the appellant attempts to give the article of the Civil Code cited is evidently erronend, consequently, the citation made by him in support of his contention is not in point.



ur opinion of the true extent and meaning of the judgments of the supreme court of Spain of February 7 May 5, 1896, has been already sufficiently explained, and it is therefore unnecessary to go into the subgain here. We refer to our decision with respect to what was said therein upon this subject.

he decision of the court does not contain the declaration, as gratuitously assumed by the appellant, thatasement resulting from a projection is of a negative character; nor, in fact, had we any occasion to much a declaration, in view of the nature of the issues raised and discussed during the trial. What we deed, hold was that the watershed mentioned in the complaint, the purpose of which was simply to pro

he window in question from sun and rain, was a mere accessory to that window, and that in no case coue considered as a projection within the provisions of article 582 of the Civil Code, as so erroneoontended by the appellant at the trial. We find nothing in his motion papers which can in any way weahis holding.

he third error is assigned is that the court holds that the easement of light, as negative, can not be acquy prescription except by counting the period of possession from the time at which the owner of the serv

enement has been prohibited from making improvements which might interfere with said easement, conto the provisions of law 14, title 31, partida 3, and articles 538 and 585 of the Civil Code, which establishontrary.

his assertion is entirely destitute of foundation, inasmuch as neither in the law of the partidas nor inrticles of the Civil Code mentioned is to be found the doctrine which the appellant arbitrarily seeks to dedom them. It is sufficient to read the text to reach the conclusion that the assertion is wholly gratuitous.

he fourth error assigned is that the court holds that the watershed, as being an accessory of the window, ot in itself constitute an easement, this being contrary to the provisions of articles 582 and 585 of the Code, and law 2, title 31, partida 3, which do not make any such distinction.

either of the law cited speaks expressly of watersheds. We have held that article 582 refers solelindows, balconies, and other similar projections, and that the watershed in question does not pertain toass of projections, our holding being based upon the reasons given in our decision. The appellant advano argument worthy of serious consideration, and therefore we continue to believe that our opinion in

matter is strictly in accordance with the law.

he appellant has attached to his motion for a rehearing two judgments, one rendered by the Royal Audief Manila September 6, 1877, and the other by the supreme court of Spain on the 22d of February, 1892, e think it well to say a few words concerning them.

n the opinion of the appellant these judgments support the theory contended for by him at the trial, thaasement of lights is positive and not negative. His error in so believing is evident, inasmuch as neither ofdgments referred to establishes any such doctrine. On the contrary, it appears clear, from the first of thdgments, that the easement referred to is negative in the opinion of the court which rendered it. ppears from the eight conclusion of law therein, which is literally as follows: "From the evidence introduy the defendant, and even from the testimony of witnesses of the plaintiff, it has been proven that since 1he house in question has suffered no change or alteration in its roof, which projects over Cosio's lot, wonstitutes the active opposition necessary in order to acquire by prescription the right to the light ." It wieen, then, that the latter part of the preceding transcript of the conclusion of law days down preciselyame doctrine as that expressed in our decision -- that active opposition is a necessary conditionrescriptive acquisition of an easement of light. And this also demonstrates conclusively that the court w



endered the judgment referred to considered the easement to be negative, inasmuch as positive easemeo not require any active opposition as a basis for their prescriptive acquisition, such an act being soecessary to the prescription of negative easements.

would appear, judging from his allegations as a whole, that the appellant confuses positive easements ontinuous easements, and the judgments referred to, in fact, declares in its fourth conclusion of law thatasement of light is continuous. If these were really so the error of the appellant would be manifest, becaontinuity is not a quality exclusively peculiar to positive easements; there are negative easements whichso continuous. Hence if is that the Civil Code, after classifying easements, in article 532, as continuous scontinuous, classifies them also as positive and negative (art. 533), thus giving to understand that

atter classification depends upon other characteristics entirely distinct from the continuity or discontinuitasements. If all continuous easements were positive and all discontinuous easements were negative, t

he express division of easements into positive and negative made by the Code, after establishing the divif the same as continuous or discontinuous, would be entirely unnecessary, as they would be entirely merr included in the latter classification. It is sufficient to read the text of the Code to understand beyondossibility of a doubt that a negative easement may be continuous, and that a positive easement mayscontinuous, according to the special nature of each one.

With respect to the second judgment -- the judgment of the supreme court of Spain of February 22, 1892 certainly difficult to understand how the appellant could have imagined that he had found thereinightest ground for his contention, inasmuch as it lays down no doctrine which relates even inference toubject of easements, and simply holds, in the first of only two paragraphs in which its conclusions ontained, that "judgments should be clear, precise, and responsive to the complaint and the issues propaised at the trial;" and in the second, that "the judgment appealed was contradictory as to the questioecides, because it makes certain declarations favorable to some of the contentions in the plaintiff's compnd then gives judgment for the defendant, without making any distinction." It was for this reason alone, or no other, that the judgment appealed was reversed and annulled. In the judgment rendered by the supreme court upon the merits of the case, as a result of this decision in cassation, no other doctrine isown than that "the judgment must be that the defendant comply with those claims advanced byomplaint to which he was consented, and that he must be discharged as to those allegations which heen denied by him and which have not been proved by the plaintiff."

here is not one word on these judgments which says that the easement of lights is positive, nor thatershed constitutes a true projection within the meaning attached to this word in article 582 of the Code, as has been vainly contended by the appellant in the trial.

herefore the appellant's motion for a rehearing of the decision of March 12, 1903, is denied.

rellano, C.J., Cooper, Willard and Ladd, JJ., concur.orres and McDonough, JJ., did not sit in this case.

ON MOTION FOR WRIT OF ERROR TO REMOVE THE CASE TO THE SUPREME COURT OF TNITED STATES.

WILLARD, J.:

he application to this court for the allowance of a writ of error or appeal for the purpose of removing this co the Supreme Court of the United States is denied.



ection 10 of the act of Congress of July 1, 1902, is as follows:

EC. 10. That the Supreme Court of the United States shall have jurisdiction to review, revise, revemodify, or affirm the final judgments and decrees of the Supreme Court of the Philippine Islands in all actiases, causes, and proceedings now pending therein or hereafter determined thereby in which onstitution or any statute, treaty, title, right, or privilege of the United States is involved, or in causes in w

he value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real esxceeding in value the sum of twenty-five thousand dollars, to be ascertained by the oath of either party other competent witnesses, is involved or brought in question; and such final judgments or decrees may an be reviewed, revised, reversed, modified, or affirmed by said Supreme Court of the United Statesppeal or writ of error by the party aggrieved, in the same manner, under the same regulations, and byame procedure, as far as applicable, as the final judgments and decrees of the circuit courts of the Untates.

here is no question in the case relating to the Constitution or any statute of the United States. The evideubmitted by the applicant shows that the value of his property over which the litigation turns is $11,867

money of the United States.

he fact that the plaintiff owns other houses in different parts of the city as to which he claims an easemenght similar to the one claimed in this case, that the decision in this case destroys all of these claimasements, and that the value of those other houses exceeds $25,000, gold, is not important. The test isalue of the matter in controversy. The matter in controversy here was the easement of light and air overroperty No. 63 Calle del Rosario and in favor of house No. 65. That easement could not be worth more the house itself.

he easements in favor of other houses of the plaintiff over other lots than No. 63 were not in controvershis suit. (Town of Elgin vs. Marshall, 106 U. S., 578.) So ordered.

rellano, C.J., Torres, Cooper, Mapa and Ladd, JJ., concur.McDonough, J., did not sit in this case.

oluntary easements

illanueva vs Velasco (Check Legal Easements)



i

iiNUISANCE

Doctrine of attractive nuisance

G.R. No. L-3422 June 13, 1952HIDALGO ENTERPRISES, INC., petitioner,

vs.

GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS, respondents.

Quisumbing, Sycip, Quisumbing and Salazar for petitioner.

Antonio M. Moncado for respondents.

BENGZON, J.:

This is an appeal by certiorari , from a decision of the Court of Appeals requiring Hidalgo Enterprises, Inc. to pay Guillermo Balandan and his

wife, damages in the sum of P2,000 for the death of their son Mario.

It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the City of San Pablo, Laguna, in whose

premises were installed two tanks full of water, nine feet deep, for cooling purposes of its engine. While the factory compound was

surrounded with fence, the tanks themselves were not provided with any kind of fence or top covers. The edges of the tanks were barely a

foot high from the surface of the ground. Through the wide gate entrance, which is continually open, motor vehicles hauling ice and persons

buying said commodity passed, and any one could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At

about noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy barely 8 years old, while playing with and in company of other boys of his

age entered the factory premises through the gate, to take a bath in one of said tanks; and while thus bathing, Mario sank to the bottom of

the tank, only to be fished out later, already a cadaver, having been died of "asphyxia secondary to drowning."

The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner maintained an attractive nuisance (the

tanks), and neglected to adopt the necessary precautions to avoid accidents to persons entering its premises. It applied the doctrine of

attractive nuisance, of American origin, recognized in this Jurisdiction in Taylor vs. Manila Electric 16 Phil., 8.

The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous instrumentalities or appliances of a

character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting

thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. ( See 65 C.J.S.,

p. 455.)

The principle reason for the doctrine is that the condition or appliance in question although its danger is apparent to those of age, is so

enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation

to such children (65 C.J.S., p. 458).

Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little children in play? In other words is the body of

water an attractive nuisance?

The great majority of American decisions say no.

The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual

condition or artificial feature other than the mere water and its location.

There are numerous cases in which the attractive nuisance doctrine has not been held not to be applicable to ponds or reservoirs, pools of

water, streams, canals, dams, ditches, culverts, drains, cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of California,

Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska,

Wisconsin.)

In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris Secundum was published in 1950, whereas its

decision was promulgated on September 30, 1949.

The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly explained by the Indiana

Appellate Court as follows:

Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this

danger children are early instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an

artificial pool on his own property, merely duplicating the work of nature without adding any new danger, . . . (he) is not liable because of

having created an "attractive nuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170.



Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the petitioner had taken reasonable

precautions becomes immaterial. And the other issue submitted by petitioner — that the parents of the boy were guilty of contributory

negligence precluding recovery, because they left for Manila on that unlucky day leaving their son under the care of no responsible individual

— needs no further discussion.

The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No costs.

Feria, Padilla, Tuason, Montemayor, and Bautista Angelo, JJ., concur.

Remedies for abatement

G.R. No. 95279 July 25, 1991ESTATE OF GREGORIA FRANCISCO, herein represented by SILVESTRE F. TAN, Administrator, petitioner,

vs.

HON. COURT OF APPEALS, HON. SALVADOR A. MEMORACION, in his capacity as Presiding Judge of the Regional Trial Court of Isabela, Basilan Province, Branch 2, MUNICIPALITY OF ISABELA, Basilan Province, herein represented by BENJAMIN VALENCIA,in his capacity as Municipal Mayor, Isabela, Basilan Province, ROGELIO L. IGOT, FELICISIMO PIOQUINTO, DANIEL PADINAS,ANTONIO CABANGON, FELIX ROXAS, BENJAMIN FERRER, GREGORIO TABADA, EFREN DELOS REYES, FLORENCIO HUGO,JESUS FRANCISCO, ALFREDO TUBILAG, PABLO ANDRES, respondents.

Bienvenido G. Martin for petitioner.

Laurencio Saavedra for private respondents.

MELENCIO-HERRERA, J.:p

Litigated herein is a quonset building situated in Port Area, Strong Boulevard, Isabela, Basilan, which was ordered demolished byrespondent Municipal Mayor, Benjamin Valencia. Respondent municipal employees implemented the demolition, for which reason they are

also impleaded.

The quonset was constructed by the American Liberation Forces in 1944. It was purchased in 1946 by Gregoria Francisco, who died in

1976. It stands on a lot owned by the Philippine Ports Authority and faces the municipal wharf. By virtue of Proclamation No. 83 issued by

President Elpidio Quirino, said land was declared for the exclusive use of port facilities.

On 10 January 1989, the Philippine Ports Authority (Port of Zamboanga) issued to Tan Gin San, surviving spouse of Gregoria Francisco, a

permit to occupy the lot where the building stands for a period of one (1) year, to expire on 31 December 1989. The permittee was using the

quonset for the storage of copra.

On 8 May 1989, Respondent Mayor, through respondent Municipal Action Officer, notified Tan Gin San by mail to remove or relocate its

quonset building, citing Zoning Ordinance No. 147 of the municipality; noting its antiquated and dilapidated structure; and. stressing the

"clean-up campaign on illegal squatters and unsanitary surroundings along Strong Boulevard." This was followed by another letter of 19 May

1989 of the same tenor.

Since the notifications remained unheeded by petitioner, Respondent Mayor ordered the demolition on 24 May 1989.

Aggrieved, petitioner sought a Writ of Prohibition with Injunction and Damages before the Regional Trial Court of Basilan, Branch 2

(docketed as S.P. No. 4).

On 7 August 1989, the Trial Court 1 denied the Writ of Prohibition and upheld the power of respondent Mayor to order the demolition without

judicial authority, adverting to Zoning Ordinance No. 147 of the Municipality of Isabela, Basilan. Petitioner duly interposed an appeal.

On 6 September 1989, petitioner's quonset building was completely demolished (Rollo, p. 49). In its place sprang shanties and nipa huts,

photographs of which have been attached to petitioner's Memorandum.

On 25 January 1990, the Court of Appeals (in CA-G.R. SP No. 18822) 2 initially reversed the Trial Court and issued a Writ of Prohibition. It

ruled that Respondent Mayor was not vested with power to order summarily, and without any judicial proceeding, the demolition of thequonset building, which was not a nuisance per se and that petitioner is in legal possession of the land on which the building stands by virtue

of the permit issued by the Philippine Ports Authority (Zamboanga Province). The restoration to petitioner of the building materials removed

upon demolition, and the payment to it of attorney's fees of P10,000.00, were also ordered.

However, upon reconsideration sought by reswever, upon reconsideration sought by respondent officials, Respondent Court 3 reversed itself

on 13 June 1990 stating that "although Municipal Mayor Valencia initially issued an order demolition without judicial process, the deficiency

was remedied when appellant (petitioners herein) filed a petition for prohibition and injunction and was heard on oral argument after

appellees (respondent officials) filed their answer." Respondent Court then quashed the Writ of Prohibition and set aside the order of

restitution and payment of attorney's fees.

Petitioner's plea for reconsideration having been denied, it is now before us seeking a reversal.



The focal issue for determination is whether or not Respondent Mayor could summarily, without judicial process, order the demolition of

petitioner's quonset building.

Respondent justify the demolition in the exercise of police power and for reasons of health, safety and general welfare. It also relies on

Ordinance No. 147 (CA Records, pp. 85-104) of the Municipality of Isabela. For its part petitioner consistently denies to the Mayor, such

power, invoking provisions of the Local Government Code.

Ordinance No. 147, enacted on 27 December 1977, and relied upon by respondents, is entitled "An Ordinance Establishing Comprehensive

Zoning Regulations for the Municipality of Isabela . . ." It is not disputed that the quonset building, which is being used for the storage of

copra, is located outside the zone for warehouses. It is referred to in Ordinance as a non-conforming structure, which should be relocated.

And in the event that an immediate relocation of the building can not be accomplished, Section 16 of the Ordinance provides:

A certificate of non-conformance for all non-conforming uses shall be applied for by the owner or agent of the property involved within twelve

(12) months from the approval of this Ordinance, otherwise the non-conforming use may be condemned or removed at the owner's expense.

Even granting that petitioner failed to apply for a Certificate of Non-conformance, the foregoing provision should not be interpreted as

authorizing the summary removal of a non-conforming building by the municipal government. For if it does, it must be struck down for being

in contravention of the requirements of due process, as originally held by the respondent Court.

Moreover, the enforcement and administration of the provisions of the Ordinance resides with the Zoning Administrator (Article VII, Secs. 1

and 2, Ordinance No. 147). It is said official who may call upon the City Fiscal to institute the necessary legal proceedings to enforce the

provisions of the Ordinance ( id ., Sec. 2, Ibid .). And any person aggrieved by the decision of the Zoning Administrator regarding the

enforcement of the Ordinance may appeal to the Board of Zoning Appeals (id ., Sec. 7, Ibid .).

That a summary remedy can not be resorted to is further evident from the penal provisions of said Ordinance, reading:

Any person who violates any of the provisions of this ordinance shall, upon conviction, be punished by a fine of not less than fifty pesos

(P50.00) but not more than two hundred pesos (P200.00) or by imprisonment of not less than one (1) month but not exceeding six (6)

months, or both, at the discretion of the Court . . . (ibid ., Sec. 11). [Emphasis ours].

Violation of a municipal ordinance neither empowers the Municipal Mayor to avail of extra-judicial remedies. On the contrary, the Local

Government Code imposes upon him the duty "to cause to be instituted judicial proceedings in connection with the violation of ordinances"

(Local Government Code, Sec. 141 [2] [t]).

Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That

tenet applies to a nuisance per se or one which affects the immediate safety of persons and property and may be summarily abated under

the undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset building is a legitimate

business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per

accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without

judicial intervention.

The provincial governor, district engineer or district health officer is not authorized to destroy private property consisting of dams and

fishponds summarily and without any judicial proceedings whatever under the pretense that such private property constitutes a nuisance. A

dam or a fishery constructed in navigable rivers is not a nuisance per se. A dam or fishpond may be a nuisance per accidens where it

endangers or impairs the health or depreciates property by causing water to become stagnant. (Monteverde v. Generoso, supra).

While the Sangguniang Bayan may provide for the abatement of a nuisance (Local Government Code, Sec. 149 [ee]), it can not declare a

particular thing as a nuisance per se and order its condemnation. The nuisance can only be so adjudged by judicial determination.

[Municipal councils] do not have the power to find as a fact that a particular thing is a nuisance when such thing is not a nuisance per se nor

can they authorize the extra judicial condemnation and destruction of that as a nuisance which, in its nature, situation or use is not such.

These things must be determined in the ordinary courts of law. In the present case, . . . the ice factory of the plaintiff is not a nuisance per se.It is a legitimate industry . . . .

If it be in fact a nuisance due to the manner of its operation, that question cannot be determined by a mere resolution of the board. The

petitioner is entitled to a fair and impartial heating before a judicial tribunal. (Iloilo Cold Storage v. Municipal Council, 24 Phil. 47 [1913]).

Petitioner was in lawful possession of the lot and quonset building by virtue of a permit from the Philippine Ports Authority (Port of

Zamboanga) when demolition was effected. It was not squatting on public land. Its property was not of trifling value. It was entitled to an

impartial hearing before a tribunal authorized to decide whether the quonset building did constitute a nuisance in law. There was no

compelling necessity for precipitate action. It follows then that respondent public officials of the Municipality of Isabela, Basilan, transcended

their authority in abating summarily petitioner's quonset building. They had deprived petitioner of its property without due process of law. The

fact that petitioner filed a suit for prohibition and was subsequently heard thereon will not cure the defect, as opined by the Court of Appeals,



the demolition having been a fait accompli prior to hearing and the authority to demolish without a judicial order being a prejudicial issue.

For the precipitate demolition, therefore, petitioner should be entitled to just compensation, the amount of which is for the Trial Court to

determine. We are not inclined to grant petitioner damages, however, as it simply ignored the demand to remove or relocate its quonset

building.

WHEREFORE, the judgment under review of respondent Court of Appeals, dated 13 June 1990, is SET ASIDE; its original Decision,

promulgated on 25 January 1990, is REINSTATED; and this case is ordered REMANDED to the Regional Trial Court of Basilan, Branch 2,

for the determination of the just compensation due petitioner for the demolition of its quonset building.

SO ORDERED.

Paras, Padilla, Sarmiento and Regalado, JJ., concur.

G.R. No. 148408 July 14, 2006CONCEPCION PARAYNO, petitioner,

vs.

JOSE JOVELLANOS and the MUNICIPALITY OF CALASIAO, PANGASINAN,* respondents.

D E C I S I O N

CORONA, J .:This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Court questioning the resolution of the Court of Appeals (CA)

which dismissed the petition for certiorari, mandamus and prohibition, with prayer for issuance of a preliminary and mandatory injunction,

filed by petitioner Concepcion Parayno against respondents Jose Jovellanos and the Municipality of Calasiao, Pangasinan.

Petitioner was the owner of a gasoline filling station in Calasiao, Pangasinan. In 1989, some residents of Calasiao petitioned the

Sangguniang Bayan (SB) of said municipality for the closure or transfer of the station to another location. The matter was referred to theMunicipal Engineer, Chief of Police, Municipal Health Officer and the Bureau of Fire Protection for investigation. Upon their advise, the

Sangguniang Bayan recommended to the Mayor the closure or transfer of location of petitioner's gasoline station. In Resolution No. 50, it

declared:

a) xxx the existing gasoline station is a blatant violation and disregard of existing law to wit:

The Official Zoning Code of Calasiao, Art. 6, Section 44,1 the nearest school building which is San Miguel Elementary School and church, the

distances are less than 100 meters. No neighbors were called as witnesses when actual measurements were done by HLURB Staff, Baguio

City dated 22 June 1989.

b) The gasoline station remains in thickly populated area with commercial/residential buildings, houses closed (sic) to each other which still

endangers the lives and safety of the people in case of fire. Moreover, additional selling and storing of several LPG tanks in the station (sic).

c) The residents of our barangay always complain of the irritating smell of gasoline most of the time especially during gas filling which tend to

expose residents especially children to frequent colds, asthma, cough and the like nowadays.

d) xxx the gasoline station violated Building and Fire Safety Codes because the station has 2nd floor storey building used for business rental

offices, with iron grilled windows, no firewalls. It also endangers the lives of people upstairs.

e) It hampers the flow of traffic, the gasoline station is too small and narrow, the entrance and exit are closed to the street property lines. It

couldn't cope situation (sic) on traffic because the place is a congested area.2

Petitioner moved for the reconsideration of the SB resolution but it was denied. Hence, she filed a special civil action for prohibition and

mandamus with the Regional Trial Court (RTC) of Dagupan City, Branch 44 against respondents. The case, docketed as SP Civil Case No.

99-03010-D, was raffled to the sala of Judge Crispin Laron.

Petitioner claimed that her gasoline station was not covered by Section 44 of the Official Zoning Code since it was not a "gasoline service

station" but a "gasoline filling station" governed by Section 21 thereof. She added that the decision of the Housing and Land Use Regulatory

Board (HLURB),3 in a previous case filed by the same respondent Jovellanos against her predecessor (Dennis Parayno), barred the grounds

invoked by respondent municipality in Resolution No. 50. In the HLURB case, respondent Jovellanos opposed the establishment of the gasstation on the grounds that: (1) it was within the 100-meter prohibited radius under Section 44 and (2) it posed a pernicious effect on the

health and safety of the people in Calasiao.

After the hearing on the propriety of issuing a writ of preliminary prohibitory and mandatory injunction, the trial court ruled:

There is no basis for the court to issue a writ of preliminary prohibitory and mandatory injunction. Albeit, Section 44 of the Official ZoningCode of respondent municipality does not mention a gasoline filling station, [but] following the principle of ejusdem generis, agasoline filling station falls within the ambit of Section 44.

The gasoline filling station of the petitioner is located under the establishment belonging to the petitioner and is very near several buildings

occupied by several persons. Justice dictates that the same should not be allowed to continue operating its business on that

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particular place. Further, the gasoline filling station endangers the lives and safety of people because once there is fire, theestablishment and houses nearby will be razed to the ground.4(emphasis supplied)

Petitioner moved for reconsideration of the decision but it was denied by the trial court.

Petitioner elevated the case to the CA via a petition for certiorari, prohibition and mandamus,5 with a prayer for injunctive relief. She ascribed

grave abuse of discretion, amounting to lack or excess of jurisdiction, on the part of Judge Laron who dismissed her case.

After the CA dismissed the petition, petitioner filed a motion for reconsideration but the same was denied. Hence, this appeal.

Before us, petitioner insists that (1) the legal maxim of ejusdem generis did not apply to her case; (2) the closure/transfer of her gasoline

filling station by respondent municipality was an invalid exercise of the latter's police powers and (3) it was the principle of res judicata that

applied in this case.6

We find merit in the petition.

The Principle of Ejusdem Generis

We hold that the zoning ordinance of respondent municipality made a clear distinction between "gasoline service station" and "gasoline filling

station." The pertinent provisions read:

xxx xxx xxx

Section 21. Filling Station. A retail station servicing automobiles and other motor vehicles with gasoline and oil only.7

xxx xxx xxx

Section 42. Service Station. A building and its premises where gasoline oil, grease, batteries, tires and car accessories may be suppliedand dispensed at retail and where, in addition, the following services may be rendered and sales and no other.

a. Sale and servicing of spark plugs, batteries, and distributor parts;

b. Tire servicing and repair, but not recapping or regrooving;

c. Replacement of mufflers and tail pipes, water hose, fan belts, brake fluids, light bulbs, fuses, floor mats, seat covers, windshield wipers

and wiper blades, grease retainers, wheel, bearing, mirrors and the like;

d. Radiator cleaning and flushing;

e. Washing and polishing, and sale of automobile washing and polishing materials;

f. Grease and lubricating;

g. Emergency wiring repairs;

h. Minor servicing of carburators;

i. Adjusting and repairing brakes;

j. Minor motor adjustments not involving removal of the head or crankcase, or raising the motor .8

xxx xxx xxx

It is evident from the foregoing that the ordinance intended these two terms to be separate and distinct from each other. Even respondent

municipality's counsel admitted this dissimilarity during the hearing on the application for the issuance of a writ of preliminary prohibitory and

mandatory injunction. Counsel in fact admitted:

1. That there exist[ed] an official zoning code of Calasiao, Pangasinan which [was] not yet amended;

2. That under Article III of said official zoning code there [were] certain distinctions made by said municipality about thedesignation of the gasoline filling station and that of the gasoline service station as appearing in Article III, Nos. 21 and 42,[respectively];3. That the business of the petitioner [was] one of a gasoline filling station as defined in Article III, Section 21 of the zoning codeand not as a service station as differently defined under Article 42 of the said official zoning code;4. That under Section 44 of the official zoning code of Calasiao, the term filling station as clearly defined under Article III, Section21, [did] not appear in the wordings thereof;9(emphasis supplied )

The foregoing were judicial admissions which were conclusive on the municipality, the party making them. 10 Respondent municipality thus

could not find solace in the legal maxim of ejusdem generis11 which means "of the same kind, class or nature." Under this maxim, where

general words follow the enumeration of particular classes of persons or things, the general words will apply only to persons or things of thesame general nature or class as those enumerated.12 Instead, what applied in this case was the legal maxim expressio unius est exclusio

alterius which means that the express mention of one thing implies the exclusion of others.13 Hence, because of the distinct and definite

meanings alluded to the two terms by the zoning ordinance, respondents could not insist that "gasoline service station" under Section 44

necessarily included "gasoline filling station" under Section 21. Indeed, the activities undertaken in a "gas service station" did not

automatically embrace those in a "gas filling station."

The Exercise of Police Powers

Respondent municipality invalidly used its police powers in ordering the closure/transfer of petitioner's gasoline station. While it had, under

RA 7160,14 the power to take actions and enact measures to promote the health and general welfare of its constituents, it should have given

due deference to the law and the rights of petitioner.




































A local government is considered to have properly exercised its police powers only when the following requisites are met: (1) the interests of

the public generally, as distinguished from those of a particular class, require the interference of the State and (2) the means employed are

reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive.15 The first requirement refers to

the equal protection clause and the second, to the due process clause of the Constitution.16

Respondent municipality failed to comply with the due process clause when it passed Resolution No. 50. While it maintained that the

gasoline filling station of petitioner was less than 100 meters from the nearest public school and church, the records do not show that it even

attempted to measure the distance, notwithstanding that such distance was crucial in determining whether there was an actual violation of

Section 44. The different local offices that respondent municipality tapped to conduct an investigation never conducted such measurement

either.

Moreover, petitioner's business could not be considered a nuisance which respondent municipality could summarily abate in the guise of

exercising its police powers. The abatement of a nuisance without judicial proceedings is possible only if it is a nuisance per se. A gas

station is not a nuisance per se or one affecting the immediate safety of persons and property, 17 hence, it cannot be closed down or

transferred summarily to another location.

As a rule, this Court does not pass upon evidence submitted by the parties in the lower courts.18 We deem it necessary, however, to recall

the findings of the HLURB which petitioner submitted as evidence during the proceedings before the trial court, if only to underscore

petitioner's compliance with the requirements of law before she put up her gasoline station.

Another factor that should not be left unnoticed is the diligence exercised by [petitioner] in complying with the requirements of the several

laws prior to the actual implementation of the project as can be attested by the fact that [petitioner] has secured the necessary building

permit and approval of [her] application for authority to relocate as per the letter of the Energy Regulatory Board xxx.19

On the alleged hazardous effects of the gasoline station to the lives and properties of the people of Calasiao, we again note:

Relative to the allegations that the project (gasoline station) is hazardous to life and property, the Board takes cognizance of the

respondent's contention that the project "is not a fire hazard since petroleum products shall be safely stored in underground tanks and that

the installation and construction of the underground tanks shall be in accordance with the Caltex Engineering Procedures which is true to all

gasoline stations in the country. xxx

Hence, the Board is inclined to believe that the project being hazardous to life and property is more perceived than factual. For,

after all, even the Fire Station Commander, after studying the plans and specifications of the subject proposed construction, recommended

on 20 January 1989, "to build such buildings after conform (sic ) all the requirements of PP 1185." It is further alleged by the complainantsthat the proposed location is "in the heart of the thickly populated residential area of Calasiao." Again, findings of the [HLURB]staff negate the allegations as the same is within a designated Business/Commercial Zone per the Zoning Ordinance. xxx20

(emphasis supplied)

The findings of fact of the HLURB are binding as they are already final and conclusive vis-à-vis the evidence submitted by respondents.

The Principle of Res Judicata

Petitioner points out that the HLURB decision in the previous case filed against her predecessor (Dennis Parayno) by respondent Jovellanos

had effectively barred the issues in Resolution No. 50 based on the principle of res judicata. We agree.

Res judicata refers to the rule that a final judgment or decree on the merits by a court of competent jurisdiction is conclusive of the rights of

the parties or their privies in all later suits on all points and matters determined in the former suit. 21 For res judicata to apply, the following

elements must be present: (1) the judgment or order must be final; (2) the judgment must be on the merits; (3) it must have been rendered

by a court having jurisdiction over the subject matter and the parties and (4) there must be, between the first and second actions, identity of

parties, of subject matter and of cause of action.22

Respondent municipality does not contest the first, second and third requisites. However, it claims that it was not a party to the HLURB case

but only its co-respondent Jovellanos, hence, the fourth requisite was not met. The argument is untenable.

The absolute identity of parties is not required for the principle of res judicata to apply.23 A shared identity of interests is sufficient to invoke

the application of this principle.24 The proscription may not be evaded by the mere expedient of including an additional party. 25 Res judicata

may lie as long as there is a community of interests between a party in the first case and a party in the second case although the latter may

not have been impleaded in the first.26

In the assailed resolution of respondent municipality, it raised the same grounds invoked by its co-respondent in the HLURB: (1) that the

resolution aimed to close down or transfer the gasoline station to another location due to the alleged violation of Section 44 of the zoning

ordinance and (2) that the hazards of said gasoline station threatened the health and safety of the public. The HLURB had already settled

these concerns and its adjudication had long attained finality. It is to the interest of the public that there should be an end to litigation by the

parties over a subject matter already fully and fairly adjudged. Furthermore, an individual should not be vexed twice for the same cause.27
































WHEREFORE, the petition is hereby GRANTED. The assailed resolution of the Court of the Appeals is REVERSED and SET ASIDE.

Respondent Municipality of Calasiao is hereby directed to cease and desist from enforcing Resolution No. 50 against petitioner insofar as it

seeks to close down or transfer her gasoline station to another location.

No costs.

SO ORDERED.Puno, Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, J.J., concur.

G.R. No. 148339 February 23, 2005LUCENA GRAND CENTRAL TERMINAL, INC., petitioner,

vs.

JAC LINER, INC., Respondent.

D E C I S I O N

CARPIO MORALES, J.:Respondent, JAC Liner, Inc., a common carrier operating buses which ply various routes to and from Lucena City, assailed, via a petition for

prohibition and injunction1 against the City of Lucena, its Mayor, and the Sangguniang Panlungsod of Lucena before the Regional Trial Court

(RTC) of Lucena City, City Ordinance Nos. 1631 and 1778 as unconstitutional on the ground that, inter alia, the same constituted an invalid

exercise of police power, an undue taking of private property, and a violation of the constitutional prohibition against monopolies. The salient

provisions of the ordinances are:

Ordinance No. 16312

AN ORDINANCE GRANTING THE LUCENA GRAND CENTRAL TERMINAL, INC., A FRANCHISE TO CONSTRUCT, FINANCE,

ESTABLISH, OPERATE AND MAINTAIN A COMMON BUS-JEEPNEY TERMINAL FACILITY IN THE CITY OF LUCENA

x x x

SECTION 1. – There is hereby granted to the Lucena Grand Central Terminal, Inc., its successors or assigns, hereinafter referred to as the

"grantee", a franchise to construct, finance, establish, operate, and maintain a common bus-jeepney terminal facility in the City of Lucena.

SECTION 2. – This franchise shall continue for a period of twenty-five years, counted from the approval of this Ordinance, and renewable at

the option of the grantee for another period of twenty-five (25) years upon such expiration.

x x x

SECTION 4. – Responsibilities and Obligations of the City Government of Lucena. – During the existence of the franchise, the City

Government of Lucena shall have the following responsibilities and obligations:

x x x

(c) It shall not grant any third party any privilege and/or concession to operate a bus, mini-bus and/or jeepney terminal.

x x x

Ordinance No. 17783

AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY OF LUCENA OF ALL BUSES, MINI-BUSES AND OUT-OF-TOWN

PASSENGER JEEPNEYS AND FOR THIS PURPOSE, AMENDING ORDINACE NO. 1420, SERIES OF 1993, AND ORDINANCE NO.

1557, SERIES OF 1995

x x x

SECTION 1. – The entrance to the City of Lucena of all buses, mini-buses and out-of-town passenger jeepneys is hereby regulated as

follows:

(a) All buses, mini-buses and out-of-town passenger jeepneys shall be prohibited from entering the city and are hereby directed to

proceed to the common terminal, for picking-up and/or dropping of their passengers.

(b) All temporary terminals in the City of Lucena are hereby declared inoperable starting from the effectivity of this ordinance.

x x x

SECTION 3. – a) Section 1 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:

Buses, mini-buses, and jeepney type mini-buses from other municipalities and/or local government units going to Lucena City are directed toproceed to the Common Terminal located at Diversion Road, Brgy. Ilayang Dupay, to unload and load passengers.

x x x

c) Section 3 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:

Passenger buses, mini-buses, and jeepney type mini-buses coming from other municipalities and/or local government units shall utilize the

facilities of the Lucena Grand Central Terminal at Diversion Road, Brgy. Ilayang Dupay, this City, and no other terminals shall be situatedinside or within the City of Lucena;d) Section 4 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:

Passenger buses, mini-buses, and jeepney type mini-buses coming from other municipalities and/or local government units shall avail of the

facilities of the Lucena Grand Central Terminal which is hereby designated as the officially sanctioned common terminal for the City of

Lucena;

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e) Section 5 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:

The Lucena Grand Central Terminal is the permanent common terminal as this is the entity which was given the exclusivefranchise by the Sangguniang Panglungsod under Ordinance No. 1631; (Emphasis and underscoring supplied)

These ordinances, by granting an exclusive franchise for twenty five years, renewable for another twenty five years, to one entity for the

construction and operation of one common bus and jeepney terminal facility in Lucena City, to be located outside the city proper, were

professedly aimed towards alleviating the traffic congestion alleged to have been caused by the existence of various bus and jeepney

terminals within the city, as the "Explanatory Note"-Whereas Clause adopting Ordinance No. 1778 states:

WHEREAS, in line with the worsening traffic condition of the City of Lucena, and with the purpose of easing and regulating the flow of the

same, it is imperative that the Buses, Mini-Buses and out-of-town jeepneys be prohibited from maintaining terminals within the City, but

instead directing to proceed to the Lucena Grand Central Terminal for purposes of picking-up and/or dropping off their passengers;4

Respondent, who had maintained a terminal within the city, was one of those affected by the ordinances.

Petitioner, Lucena Grand Central Terminal, Inc., claiming legal interest as the grantee of the exclusive franchise for the operation of the

common terminal,5 was allowed to intervene in the petition before the trial court.

In the hearing conducted on November 25, 1998, all the parties agreed to dispense with the presentation of evidence and to submit the case

for resolution solely on the basis of the pleadings filed.6

By Order of March 31, 1999,7 Branch 54 of the Lucena RTC rendered judgment, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered, as follows:1. Declaring City Ordinance No. 1631 as valid, having been issued in the exercise of the police power of the City Government of Lucena

insofar as the grant of franchise to the Lucena Grand Central Terminal, Inc., to construct, finance, establish, operate and maintain common

bus-jeepney terminal facility in the City of Lucena;

2. But however, declaring the provision of Sec. 4(c) of Ordinance No. 1631 to the effect that the City Government shall not grant any third

party any privilege and/or concession to operate a bus, mini-bus and/or jeepney terminal, as illegal and ultra vires because it contravenes

the provisions of Republic Act No. 7160, otherwise known as "The Local Government Code";

3. Declaring City Ordinance No. 1778 as null and void, the same being also an ultra vires act of the City Government of Lucena arising from

an invalid, oppressive and unreasonable exercise of the police power, more specifically, declaring illegal [sections 1(b), 3(c) and 3(e)];

4. Ordering the issuance of a Writ of Prohibition and/or Injunction directing the respondents public officials, the City Mayor and the

Sangguniang Panglungsod of Lucena, to cease and desist from implementing Ordinance No. 1778 insofar as said ordinance prohibitsor curtails petitioner from maintaining and operating its own bus terminal subject to the conditions provided for in Ordinance No. 1557,

Sec. 3, which authorizes the construction of terminal outside the poblacion of Lucena City; and likewise, insofar as said ordinance directsand compels the petitioner to use the Lucena Grand Central Terminal Inc., and furthermore, insofar as it declares that no other terminals shall be situated, constructed, maintained or established inside or within the City of Lucena; and furthermore,

5. The Motion to Dismiss filed by the Intervenor, Lucena Grand Central Terminal Inc., dated October 19, 1998, is hereby DENIED for lack of

merit.

SO ORDERED. (Emphasis and underscoring supplied)8

Petitioner’s Motion for Reconsideration9 of the trial court’s order having been denied by Order of August 6, 1999, 10 it elevated it via petition

for review under Rule 45 before this Court.11 This Court, by Resolution of November 24, 1999,12 referred the petition to the Court of Appeals

with which it has concurrent jurisdiction, no special and important reason having been cited for it to take cognizance thereof in the first

instance.

By Decision of December 15, 2000,13 the appellate court dismissed the petition and affirmed the challenged orders of the trial court. Its

motion for reconsideration14

having been denied by the appellate court by Resolution dated June 5, 2001,15

petitioner once again comes tothis Court via petition for review,16 this time assailing the Decision and Resolution of the Court of Appeals.

Decision on the petition hinges on two issues, to wit: (1) whether the trial court has jurisdiction over the case, it not having furnished the

Office of the Solicitor General copy of the orders it issued therein, and (2) whether the City of Lucena properly exercised its police power

when it enacted the subject ordinances.

Petitioner argues that since the trial court failed to serve a copy of its assailed orders upon the Office of the Solicitor General, it never

acquired jurisdiction over the case, it citing Section 22, Rule 3 of the Rules which provides:

SEC. 22. Notice to the Solicitor General.—In any action involving the validity of any treaty, law, ordinance, executive order, presidential

decree, rules or regulations, the court in its discretion, may require the appearance of the Solicitor General who may be heard in person or













































through representative duly designated by him. (Emphasis and underscoring supplied)

Furthermore, petitioner invokes Sections 3 and 4 of Rule 63 which respectively provide:

SEC. 3. Notice on Solicitor General . – In any action which involves the validity of a statute, executive order or regulation, or any other

governmental regulation, the Solicitor General shall be notified by the party assailing the same and shall be entitled to be heard upon such

question.

SEC. 4. Local government ordinances. – In any action involving the validity of a local government ordinance, the corresponding prosecutor

or attorney of the local government unit involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be

unconstitutional, the Solicitor General shall also be notified and entitled to be heard . (Emphasis and underscoring supplied)

Nowhere, however, is it stated in the above-quoted rules that failure to notify the Solicitor General about the action is a jurisdictional defect.

In fact, Rule 3, Section 22 gives the courts in any action involving the "validity" of any ordinance, inter alia, "discretion" to notify the Solicitor

General.

Section 4 of Rule 63, which more specifically deals with cases assailing the constitutionality , not just the validity, of a local government

ordinance, directs that the Solicitor General "shall also be notified and entitled to be heard." Who will notify him, Sec. 3 of the same rule

provides — it is the party which is assailing the local government’s ordinance.

More importantly, however, this Court finds that no procedural defect, fatal or otherwise, attended the disposition of the case. For respondent

actually served a copy of its petition upon the Office of the Solicitor General on October 1, 1998, two days after it was filed. The Solicitor

General has issued a Certification to that effect.17 There was thus compliance with above-quoted rules.

Respecting the issue of whether police power was properly exercised when the subject ordinances were enacted: As with the State, the localgovernment may be considered as having properly exercised its police power only if the following requisites are met: (1) the interests of the

public generally, as distinguished from those of a particular class, require the interference of the State, and (2) the means employed are

reasonably necessary for the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. Otherwise

stated, there must be a concurrence of a lawful subject and lawful method.18

That traffic congestion is a public, not merely a private, concern, cannot be gainsaid. In Calalang v. Williams19 which involved a statute

authorizing the Director of Public Works to promulgate rules and regulations to regulate and control traffic on national roads, this Court held:

In enacting said law, therefore, the National Assembly was prompted by considerations of public convenience and welfare. It was inspired

by a desire to relieve congestion of traffic, which is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of the

enactment of said law, and the state in order to promote the general welfare may interfere with personal liberty, with property, and with

business and occupations.20 (Emphasis supplied)

The questioned ordinances having been enacted with the objective of relieving traffic congestion in the City of Lucena, they involve public

interest warranting the interference of the State. The first requisite for the proper exercise of police power is thus present.

Respondent’s suggestion to have this Court look behind the explicit objective of the ordinances which, to it, was actually to benefit the private

interest of petitioner by coercing all bus operators to patronize its terminal does not lie.21 Lim v. Pacquing 22 instructs:

. . . [T]his Court cannot look into allegations that PD No. 771 was enacted to benefit a select group which was later given authority to operate

the jai-alai under PD No. 810. The examination of legislative motivation is generally prohibited. (Palmer v. Thompson, 403 U.S. 217, 29 L.

Ed. 2d 438 [1971] per Black, J.) There is, in the first place, absolute lack of evidence to support ADC’s allegation of improper motivation in

the issuance of PD No. 771. In the second place, as already averred, this Court cannot go behind the expressed and proclaimed purposes of

PD No. 771, which are reasonable and even laudable. (Underscoring supplied)23

This leaves for determination the issue of whether the means employed by the Lucena Sangguniang Panlungsod to attain its professed

objective were reasonably necessary and not unduly oppressive upon individuals.

With the aim of localizing the source of traffic congestion in the city to a single location, 24 the subject ordinances prohibit the operation of all

bus and jeepney terminals within Lucena, including those already existing, and allow the operation of only one common terminal locatedoutside the city proper, the franchise for which was granted to petitioner. The common carriers plying routes to and from Lucena City are

thus compelled to close down their existing terminals and use the facilities of petitioner.

In De la Cruz v. Paras,25 this Court declared unconstitutional an ordinance characterized by overbreadth. In that case, the Municipality of

Bocaue, Bulacan prohibited the operation of all night clubs, cabarets and dance halls within its jurisdiction for the protection of public morals.

Held the Court:

It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qualify under the term reasonable. The objective of

fostering public morals, a worthy and desirable end can be attained by a measure that does not encompass too wide a field. Certainly the

ordinance on its face is characterized by overbreadth. The purpose sought to be achieved could have been attained by reasonable

restrictions rather than by an absolute prohibition. The admonition in Salaveria should be heeded: "The Judiciary should not lightly set aside

legislative action when there is not a clear invasion of personal or property rights under the guise of police regulation." It is clear that in the






























guise of a police regulation, there was in this instance a clear invasion of personal or property rights, personal in the case of those individuals

desirous of patronizing those night clubs and property in terms of the investments made and salaries to be earned by those therein

employed. (Underscoring supplied)26

In Lupangco v. Court of Appeals,27 this Court, in declaring unconstitutional the resolution subject thereof, advanced a similar consideration.

That case involved a resolution issued by the Professional Regulation Commission which prohibited examinees from attending review

classes and receiving handout materials, tips, and the like three days before the date of examination in order to preserve the integrity and

purity of the licensure examinations in accountancy. Besides being unreasonable on its face and violative of academic freedom, the measure

was found to be more sweeping than what was necessary, viz :

Needless to say, the enforcement of Resolution No. 105 is not a guarantee that the alleged leakages in the licensure examinations will be

eradicated or at least minimized. Making the examinees suffer by depriving them of legitimate means of review or preparation on those last

three precious days when they should be refreshing themselves with all that they have learned in the review classes and preparing their

mental and psychological make-up for the examination day itself — would be like uprooting the tree to get rid of a rotten branch. Whatis needed to be done by the respondent is to find out the source of such leakages and stop it right there. If corrupt officials or

personnel should be terminated from their loss, then so be it. Fixers or swindlers should be flushed out. Strict guidelines to be observed by

examiners should be set up and if violations are committed, then licenses should be suspended or revoked. x x x (Emphasis and

underscoring supplied)28

As in De la Cruz 29 and Lupangco,30 the ordinances assailed herein are characterized by overbreadth. They go beyond what is reasonably

necessary to solve the traffic problem. Additionally, since the compulsory use of the terminal operated by petitioner would subject the users

thereof to fees, rentals and charges, such measure is unduly oppressive, as correctly found by the appellate court. 31 What should have been

done was to determine exactly where the problem lies and then to stop it right there.

The true role of Constitutional Law is to effect an equilibrium between authority and liberty so that rights are exercised within the framework

of the law and the laws are enacted with due deference to rights. (Underscoring supplied)32

A due deference to the rights of the individual thus requires a more careful formulation of solutions to societal problems.

From the memorandum33 filed before this Court by petitioner, it is gathered that the Sangguniang Panlungsod had identified the cause of

traffic congestion to be the indiscriminate loading and unloading of passengers by buses on the streets of the city proper, hence, the

conclusion that the terminals contributed to the proliferation of buses obstructing traffic on the city streets.

Bus terminals per se do not, however, impede or help impede the flow of traffic. How the outright proscription against the existence of all

terminals, apart from that franchised to petitioner, can be considered as reasonably necessary to solve the traffic problem, this Court has not

been enlightened. If terminals lack adequate space such that bus drivers are compelled to load and unload passengers on the streets

instead of inside the terminals, then reasonable specifications for the size of terminals could be instituted, with permits to operate the same

denied those which are unable to meet the specifications.

In the subject ordinances, however, the scope of the proscription against the maintenance of terminals is so broad that even entities which

might be able to provide facilities better than the franchised terminal are barred from operating at all.

Petitioner argues, however, that other solutions for the traffic problem have already been tried but proven ineffective. But the grant of an

exclusive franchise to petitioner has not been shown to be the only solution to the problem.

While the Sangguniang Panlungsod, via Ordinance No. 1557,34 previously directed bus owners and operators to put up their terminals

"outside the poblacion of Lucena City," petitioner informs that said ordinance only resulted in the relocation of terminals to other well-

populated barangays, thereby giving rise to traffic congestion in those areas. 35 Assuming that information to be true, the Sangguniang

Panlungsod was not without remedy. It could have defined, among other considerations, in a more precise manner, the area of relocation to

avoid such consequences.

As for petitioner’s argument that the challenged ordinances were enacted pursuant to the power of the Sangguniang Panlungsod to

"[r]egulate traffic on all streets and bridges; prohibit encroachments or obstacles thereon and, when necessary in the interest of publicwelfare, authorize the removal of encroachments and illegal constructions in public places": 36 Absent any showing, nay allegation, that the

terminals are encroaching upon public roads, they are not obstacles. The buses which indiscriminately load and unload passengers on the

city streets are. The power then of the Sangguniang Panlungsod to prohibit encroachments and obstacles does not extend to

terminals.1a\^/phi1.net

Neither are terminals public nuisances as petitioner argues. For their operation is a legitimate business which, by itself, cannot be said to be

injurious to the rights of property, health, or comfort of the community.

But even assuming that terminals are nuisances due to their alleged indirect effects upon the flow of traffic, at most they are nuisance per

accidens, not per se.






























Unless a thing is nuisance per se, however, it may not be abated via an ordinance, without judicial proceedings, as was done in the case at

bar.

In Estate of Gregoria Francisco v. Court of Appeals,37 this Court held:

Respondents can not seek cover under the general welfare clause authorizing the abatement of nuisances without judicial proceedings. That

tenet applies to a nuisance per se, or one which affects the immediate safety of persons and property and may be summarily abated under

the undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra in the quonset building is a legitimate

business. By its nature, it can not be said to be injurious to rights of property, of health or of comfort of the community. If it be a nuisance per

accidens it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance warranting its summary abatement without

judicial intervention.l^vvphi1.net (Underscoring supplied)381awphi1.nét

In Pampanga Bus Co., Inc. v. Municipality of Tarlac 39 where the appellant-municipality similarly argued that the terminal involved therein is a

nuisance that may be abated by the Municipal Council via an ordinance, this Court held: "Suffice it to say that in the abatement of nuisances

the provisions of the Civil Code (Articles 694-707) must be observed and followed. This appellant failed to do."

As for petitioner’s claim that the challenged ordinances have actually been proven effective in easing traffic congestion: Whether an

ordinance is effective is an issue different from whether it is reasonably necessary. It is its reasonableness, not its effectiveness, which bears

upon its constitutionality. If the constitutionality of a law were measured by its effectiveness, then even tyrannical laws may be justified

whenever they happen to be effective.

The Court is not unaware of the resolutions of various barangays in Lucena City supporting the establishment of a common terminal, and

similar expressions of support from the private sector, copies of which were submitted to this Court by petitioner. The weight of popular

opinion, however, must be balanced with that of an individual’s rights.

There is no question that not even the strongest moral conviction or the most urgent public need, subject only to a few notable exceptions,

will excuse the bypassing of an individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of

the Constitution is a majority of one even as against the rest of the nation who would deny him that right.40

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Callejo, Sr.,

Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur.

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