property - cont. easement

7/29/2019 PROPERTY - Cont. Easement

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G.R. No. L-5044 December 1, 1909

EDWIN CASE, petitioner-appellant, vs. THE HEIRS OF TUASON Y SANTIBAEZ, opponents-appellees.

Hartigan and Rohde, and Roman Lacson for appellant.Rosado, Sanz and Opisso for appellees.

TORRES, J.:

On the 7th of December, 1906, the attorneys for Edwin Case filed a petition with the Court of LandRegistration requesting that the property owned by the applicant, described in the petition, beregistered in accordance with the provisions of Land Registration Act. After a written opposition waspresented by Felipe R. Caballero on the 6th of June, 1907, on behalf of the heirs of late PabloTuason and Leocadia Santibaez, counsel for the applicant, Case, on August 2, 1907, amended theoriginal petition and set forth: that said property, situated in Calle Escolta, district of Binondo, consistsof a parcel of land and the building erected thereon bearing Nos. 142 and 152; it is bounded on thenorthwest, approximately, by the estero of Santa Cruz and the property of Carmen de Ayala deRoxas; on the southeast by the River Pasig; on the southwest by the property of the heirs of Tuasonand Santibaez; and on the northwest by Calle Escolta and the aforesaid property of Carmen de

Ayala de Roxas; that the total area is 3,251.84 square meters, its description and boundaries beingdetailed in the plan attached to the petition; that according to the last assessment made for thepurposes of taxation the land was valued at P170,231 and the buildings thereon at P30,000; that theproperty is free from all incumbrance, and no one has any interest therein or right thereto; that on thenortheast side the property has in its favor the right of easement over some 234.20 square meters ofland owned by the said Ayala de Roxas, and that the applicant acquired the property by successionfrom Doa Clotilde Romree.

In the written opposition above alluded to, counsel for the heirs of Pablo Tuason and LeocadiaSantibaez alleged that the parties whom he represents are owners in common of the propertyadjoining that of the petitioner on the southwest; that the latter, in making the plan attached to his

petition, extended his southwest boundary line to a portion of the lot of the said heirs of Tuason andSantibaez in the form indicated by the red line in the annexed plan; that the true dividing linebetween the property of the petitioner and that of the said heirs is the walls indicated in black ink onthe accompanying plan; that said walls belong to the opponents, and that about two years ago, whenthe applicant made alterations in the buildings erected on his land, he improperly caused a portion ofthem to rest on the wall owned by the parties whom he represents, at point 12, 13, and 14 of saidplan; for which reason the opponent prayed the court to direct the applicant to amend the line markedin his plan with the letters Y, X, U, T, S, and R, so that it may agree with the wall indicated by thenumbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 on the plan which accompanies the writtenopposition, reducing the area to whatever it may be after the amendment has been made; that theapplicant be compelled to remove the supports that he placed for his buildings on the wall of the

representatives of the petitioner, and that he be sentenced to pay the costs.

The case was brought to trial, both parties adduced evidence, and their exhibits were made of record.The court, assisted by the interested parties and their respective experts, made an inspection of thetwo properties, in view of which it entered judgment on the 31st of July, 1908, sustaining theopposition offered by the representative of the heirs of Pablo Tuason Leocadia Santibaez, and afterdeclaring a general default granted the registration of the property described in the application filed byEdwin Case, with the exclusion of the wall claimed by the opponents and shown on their plan by thelines numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14; and in view of the fact that the linesdrawn on the plan offered in evidence by the applicant under letter G are not correctly drawn, oncethis decision shall have become final, let the dividing line of both properties be fixed by common


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accord between the two parties and their experts, taking as a base for the same the amended line ofwalls drawn on the plan of the opponents, but should they not reach an agreement a surveyor of theCourt of Land Registration shall be detailed to fix the same at the expense of the parties; the courtalso ordered the cancellation of the registration entries of the property entered in the name of ClotildeRomree, principal of the petitioner, at page 142 and those following of volume 15, section of Binondoand 52 of the register, property No. 828, first entry.

On the 12th of August, 1908, the petitioner moved for a new trial on the ground that the evidence was

not sufficient to justify the decision of the court in excluding the wall claimed by the opponents; thatsaid decision was contrary to the law, in so far as it excludes the said wall, and that the conclusions offact therein are openly and manifestly contrary to the weight of the evidence in so far as they referredto the exclusion of said wall. The said motion was overruled on the 15th of same month, to whichoverruling the applicant excepted and announced his intention to perfect the corresponding bill ofexceptions which was filed, approved, and submitted to this court together with the properassignment of errors.

In the appeal interposed by the applicant against the decision of the Court of Land Registration, nowbefore this court, the questions set up are merely of fact.

The question is whether the wall that with slight interruption runs from Calle Escolta to the RiverPasig, and which divides the adjoining properties of the applicant, Edwin Case, and of the opponents,belongs to the former, as he claimed in the first instance, or is a dividing wall as affirmed in his brief inthis second instance, or is the property of the said opponents, the heirs of the late Tuason andSantibaez. lawphi1.net

The trial court after considering the evidence adduced by both parties to the suit, found that the walin controversy belongs to the opponents for the reason, among others, that in the public document bywhich one of their original ancestors acquired on the 19th of April, 1796, the property now possessedby them, it appears that property was then already inclosed by a stone wall. This document, whichwas offered in evidence by the opponents, has not been impugned by the applicant. On the contrary,

it was acknowledge as the title deed of the property adjoining that of the applicant by the witnessJuan B. Tuason, who knows the one and the other.

It is fully proven that two walls extend from Calle Escolta to the interior of both properties, the onebacking the other, and which respectively support the edifices of the petitioner and of the opponentsfrom points 36, 35, 34, 33, 32, 31, and 30 on the plan of the petitioner corresponding to points 1 to 6on that of the opponents.

This section of the wall of the opponents embraced within the points mentioned in the plans offered inevidence by the parties, for very reason that it supports only the property of the opponents and notthat of the petitioner, can not be a party wall, one-half of which along its entire length would belong to

the adjoining building owned by Mr. Case. There is not sufficient proof to sustain such claim, andbesides, the building erected thereon disproves the pretension of the petitioner.

It should, however, be noted that the portion of the wall between the numbers 3, 4, 5, and 6 on theplan of the opponents, which corresponds to numbers 33, 32, 31, and 30 of that of the petitioner, andwhich constitutes the cesspool on the property of the latter, belongs to him, and it has so beenadmitted by counsel for the opponents, for the reason that the petitioner had acquired it byprescription, the opponents having lost control over the area of land covered by the said cesspooltogether with the walls that inclose it.


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Under article 572 of the Civil Code the easement of party walls is presumed, unless there is a title orexterior sign, or proof to the contrary, among others, in dividing walls adjoining buildings up to thecommon point of elevation.

The legal presumption as to party walls is limited to the three cases dealt with in the said article of thecode, and is that ofjuris tantum unless the contrary appear from the title of ownership of the adjoiningproperties, that is to say, that the entire wall in controversy belongs to one of the property owners, orwhere there is no exterior sign to destroy such presumption and support a presumption against the

party wall.lawphi1.net(Art. 573, Civil Code.)

The intermediate portion of the walls in question, lying between numbers 6 and 13 on the defendantsplan, equivalent to a little more than numbers 30 to 25 on the plan of the petitioner, is the portionagainst which no other wall appears to have been erected on the land owned by Mr. Case. In spite ofthis it can not be presumed that the aforesaid portion was a party wall, and that it was not exclusivelyowned by the defendants, inasmuch as the latter have proven by means of a good title that has notbeen impugned by the petitioner, that when one of their ancestors and principals acquired theproperty the lot was already inclosed by the wall on which the building was erected; it must thereforebe understood that in the purchase of the property the wall by which the land was inclosed wasnecessarily included.

The above documentary evidence has not been overcome by any other presented by the petitioner,but apart from that record discloses the existence of certain unquestionable signs. These consist ofconstructions made by the petitioner himself on his own property which entirely destroy anypresumption that it is a party wall, and indeed gives rise to a presumption against it.

Three openings have been made in the wall , undoubtedly to allow the passage of air and light. Twoof them are beveled on the side toward the land of the objectors, and the third has recently beenbeveled on the other. A rafter or lintel was found imbedded in the wall on the side of the property ofthe opponents. These things constitute exterior signs and were recorded as the result of personalinspection by the trial court in company with the experts of both parties. These signs positively and

conclusively prove that the said wall is not a party wall, but the exclusive property of the defendant.This is further confirmed by the testimony of the witnesses at the trial.

The fact that the petitioner built a wall and backed it against the one in question to support the edificehe had constructed between points 21 and 13 of the corrected plan is a further indication that theneighboring wall is not a party one. He knew perfectly well that he had no right to rest his building onthe latter. That he built a terrace about four years previously over the wall between points 30, 29, 28,and 27 does not prove that the whole of the wall, from the Escolta to the River Pasig, is a party wall,but it does show that he usurped a portion thereof to the prejudice of the real owner.

Neither can it be presumed that part of the wall bordering on the River Pasig comprised between

points 13 and 14 is a party wall. It was shown in the proceedings as resulting from the above-mentioned ocular inspection that the side of the said wall, which is rather a low one, there is another,a higher one erected on the petitioner's land and backed against the one in question. The first one, ashas been said, forms part of that which has surrounded the property from the date of its acquisition,more than a century ago, until the present date. It is absolutely independent of that built by thepetitioner, and that it is the exclusive property of the objectors and is not a party wall can not bedenied.

It therefore appears from the proceedings that, with the exception of the small portion of the wall inquestion occupied by the latrine on the property of the petitioner, and which the opponents admit thathe has acquired by prescription, the whole of said wall from the Escolta to the River Pasig can not be


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presumed to be a party wall; the evidence to the contrary conclusively proves that it belongedexclusively to the defendants, and it has been further shown in the case that at one time an oldbuilding belonging to the opponents used to rest on a portion of the wall near the river. lawphi1.net

In view of the foregoing, and considering that the judgment appealed from is in accordance with thelaw and the merits of the case, it is our opinion that the same should be affirmed in full, as we dohereby affirm it, with the costs against the petitioner. So ordered.

Arellano, C. J., Mapa, Johnson, Carson, and Moreland, JJ., concur.

G.R. No. 6076 - December 29, 1911

SEVERINA and FLORA CHOCO, plaintiffs-appellants, vs. ISIDRO SANTAMARIA, defendant-appellant.

Manuel Torres, for plaintiffs. Leodegario Azarraga, for defendant.

MAPA, J.:

The judgment rendered in this case in first instance is in part as follows:

From the evidence presented at the trial, I find that the defendants is in possession of a parceof land on the corner of Calles Pescadores and P. Rada, in the district of Tondo, city of Manila,and that he was erected a house thereon flush with the boundary line of the adjacent propertythat the plaintiffs are the owners of the land on both sides of the defendant's house, erected asstated, both on Calle Pescadores and Calle P. Rada; that the defendant in the building of hishouse has made several openings and windows in the walls of the house on both sidesoverlooking then property of the plaintiff; that at the time the defendant was building his house,and the windows and the openings were being made, the plaintiffs protested, and later on andin the year 1905 made written protest and demand on the defendant, and the defendant

received the written protest and referred it to his counsel, who, from the evidence, appears tohave suggested an amicable and adjustment of the matter, but the adjustment was not made,and this action was brought.

It is likewise established that the entrance to the defendant's house is in Calle Pescadores,and taking it as the front of his house he has put a large window in its upper story, on thebalcony of said house, marked 1 on Exhibit A, overlooking Calle P. Rada; and that this windowand its balcony do not face directly toward the house of the plaintiffs.

There have also been constructed two windows in the rear wall of the house of the defendant,in the first story of the house, which are marked 8 and 9 on exhibit A, and these windows are

each 50 by 80 centimeters, and are placed immediately under the ceiling of the first story, andeach of these windows is equally divided into four panes.

On the right hand side of the house, entering from Calle Pescadores, there is a window oropening in the wall of the house in the second story, which is about 25 by 35 centimeters, andis located a little more than half way from the floor of the ceiling of the second story and this issubdivided into smaller panes; and on the same side there are three windows which aremarked 2, 3, and 4 on Exhibit A, located immediately under the ceiling of the first story, andeach of the three is 25 by 25 centimeters.


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There are two other windows on the same side located immediately under the ceiling, whichare marked as 5 and 6 on Exhibit A and also on Exhibit C, and one of these windows is about35 by 67 centimeters, and the other about 75 by 90 centimeters.

It also appears that there is wire screening over all these openings or windows. 1awphil.net

The law provides that the owner of a wall which is not a party wall, adjoining another's estate,may make in it windows or openings to admit light at the height of the ceiling joist, or

immediately under the ceiling, thirty centimeters square, with an iron gate embedded in thewall and a wire screen.

In this case the windows are in a wall not a party wall adjoining the plaintiff's estate, and thewindow marked 2, 3, and 4, as appears on Exhibit A, are less than thirty centimeters squareand have a wire screen, but there does not appear to be the iron gate embedded in the wall.

The windows marked 5 and 6, as indicated in Exhibit A, have a wire screen but are more thanthirty centimeters square, and have the iron grate embedded in the wall.

The window marked 7 on Exhibit A has a wire screen, but is more than 30 centimeters square

and has not the iron grate embedded on the wall.

The windows 8 and 9, as indicated on Exhibit A, have a wire screen but no iron grateembedded in the wall, and are of a greater dimension than thirty centimeter square.

The window marked One on Exhibit A is located in a balcony which overlooks the street, whilethe premises of the plaintiff may be seen from it, it is not adjoining their estate.

The court finds that the plaintiffs are entitled to a decree for closing all the windows oropenings in the walls of the defendant's house, as herein before described, which directlyoverlook the premises of the plaintiffs, or that in some other way the provisions of the law be

complied with so that they may remain open.

All these openings and windows can be made to comply with the law, with the exception of thatmarked 7, which is not immediately under the ceiling ( techo).

Let judgment be entered in favor of the plaintiffs, Severina and Flora Choco, and against thedefendant, Isidro Santamaria, forever prohibiting the opening of the window marked No. 7, ashereinbefore stated, which must be closed, and forever prohibiting the opening of the windowsand openings marked, as herein before stated, 2, 3, 4, 5, 6, 8, and 9, which must be closed ormade to conform to the requirements of law with regard to dimensions and an iron grateembedded in the wall, with the costs of the action.

The plaintiffs appealed from that judgment and allege in their appeal in this instance:1awphil.net

1. That the lower court erred by not ordering in his judgment the final and perpetual closing of thelarge window opened in the balcony of the back part of the appellee's house and marked No. 1 in thephotographic Exhibits A and D, on the ground that the said window is in the balcony which overlooksCalle Padre Rada and that, though the appellant's lot can be seen through the window, it is notcontiguous to the latter's property.


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2. That the trial court also erred in ordering in his judgment that the openings and windows, Nos. 2, 3,4, 5, 6, 8, and 9, might continue open if they were fixed so as to comply with the requirements of thelaw as regards their dimensions and the placing of iron grates embedded in the wall.

3. That the lower court also erred in denying the appellant's petition for rehearing.

It appears obvious to us, from the evidence, that the window No. 1, referred to in the first assignmentof errors, is next appellants' lot. To judge from the photographic views, Exhibits A and D, it opens on

the boundary line between the said lot and that the appellee and is situated perpendicularly above apart of the wall that belongs to the appellants. This opinion is corroborated by the testimony of thedefendant's witness who took the said photographs, in so far as he said that "a part of the window inquestion is in front of the plaintiffs' property, and a person approaching the window may clearly seethe said lot." And certainly if it is in front of this lot, it is unquestionable that it directly overlooks thesame; but even though it did not and only a side or oblique view of the lot could be obtained from it, itcould not be kept open, since between it and the plaintiffs' property there does not intervene thedistance required by law that of two meters in the first case, and 60 centimeters in the second. Inreality, there is no distance at all between the said window and the plaintiffs' lot, because, as we havesaid, this window is perpendicular to the boundary line of the said lot; therefore, its opening is amanifest violation of the provisions of article 582 of the Civil Code which reads as follows:

Windows with direct views, or balconies or any similar openings projecting over the estate ofthe neighbor, can not be made if there is not a distance of, at least, 2 meters between the walin which they are built and said estate.

Neither can side nor oblique views be opened over said property, unless there is a distance of60 centimeters.

Because of the lack of the distance required by law, the window in question must be closed, andconsequently the judgment appealed from should be modified in this sense, as regards this window.

With respect to the second assignment of error, the question raised by the appellants concerns theproper interpretation of article 581 of the Civil Code which describes as follows:

The owner of the wall which is not a party-wall, adjoining anothers estate, may make in itwindows or openings to admit light, at the height of the ceiling joists or immediately under theceiling, of the dimentions of 30 centimeters square and, in any case, with an iron grateembedded in the wall and a wire screen.

The windows mentioned in this part of the appeal are those indicated by Nos. 2, 3, 4, 5, 6, 8, and 9, inthe defendant's Exhibit A. They are all situated immediately under the ceiling of the first door and areprovided with wire screens; some of them measure more and other less than 30 centimeters square

and none of them have iron grates embedded in the wall. Owing to this last circumstance, none ofthem fully comply with the conditions required by the law; moreover, those numbered 5, 6, 8, and 9,have the additional defect of being greater than 30 centimeters square. The trial judge thereforeordered, in the judgment, that all the aforementioned windows be closed or that they be made toconform to the law with respect to their dimentions and the placing of the iron grates embedded in thewall. The appellants maintain that these windows should have been ordered closed absolutely andfinally, and, consequently, that the option allowed the defendant to keep them open, provided that hebrought them within the terms of the law, in contrary to the same and, therefore, illegal.

It is alleged as a ground for such averment that none of the ceiling joist, which is the first conditionrequired by law.


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We understand by ceiling joist say the appellants in a building composed of any givennumber of stories, the long pieces to which are nailed the boards that form the ceiling ofthe laststory of the building, counting the stories from below; and this interpretation which wegive to the words ceiling joists must be that most in harmony with the spirit of article 581 of thecode, the subject of our examination, since immediately after them in the same article, inexplanation, are found the words or immediately under "los techos,"in order to indicatewithout the least doubt, the sole place or height where openings or windows may be made inconformity within the law. It is needless to say that a building, though composed of several

stories, can have but one techo. . . .

This last assertion is incorrect. By techo is understood that part of a construction which covers therooms under it and certainly forms one of the essential parts of every story. A story is composed ofearth, payment and ceiling, the latter, that is, the ceiling, being that part of the story that the visible tothe observer situated below in the room covered by it. (Hispano-American Encyclopedic Dictionary,by Montaner and Simon.) Consequently, every story has a ceiling, and not, as the appellantsmaintain, the upper one alone.

Nor is their definition exact of the word joists, as it is employed in article 581 of the Code. Accordingto the dictionary of the Spanish Academy, these are, in architecture, understood to be a kind of beam

laid horizontally and serving in buildings to support others of for bracing and connecting the parts ofthe structure. Mucius Scaevola says in his Civil Code, volume 10, page 448:

The horizontal timbers that are placed upon the tops of the uprights, that is, what arecommonly called beams, intended to serve for connection and main support of the timbers ofthe different floors that separate the stories of the building, are called joists.

According to these definitions each floor necessarily has joists, that is, beams, since, in the lastanalysis they are what support and secure the structure of the story immediately above; therefore it isnot true that there may be joists only in the top story, as the appellants claim by saying that theyunderstand to be such the long timbers to which are fastened the boards of the ceiling at the top story

of the building. On the contrary, carefully considered, it is precisely the top story that does not needjoists, since it does not have to support any other higher portion of the building. It has only to supportthe weight of the roof, which undoubtedly much less than that of a whole story. So that, according toMucius Scaevola (work cited, vol. 10, p. 487), it can not be said that the top story has joists. Andbecause it certainly does not have them, is reason why the code in said article 581 employs thephrase orimmediately under "los techos"in referring to the top story.

The author's words in expounding this theory in his commentary on article 581 of the Civil Code areas follows:

We said elsewhere that these (the joists) were horizontal timbers that rest upon the tops of the

uprights; they form, then, the upper limit of the different stories of a house; and therefore, inreferring to the top story, which can not be said to have joists, article 581 makes use of thephrase or immediately under "los techos."

This does not mean that the italicized phrase refers solely and exclusively to the top story, sincelower stories also have techos, as above set forth. In our opinion what the author cited means is thatin speaking of the top story, which has no joists, the words or article 581 of the code, at the height ofthe ceiling joists, fail to apply, the phaseor immediately under "los techos"alone being theretoapplicable, in distinction from the lower stories, with regard to which both phrases are applicable asthey have at the same time joists and techo. In referring to the lower stories either phrase may, inconnection with the other, determine the place, which surely can be more than one, where it is


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permissible to open the windows called regulation windows, whenever in them the joists are actuallyjoined to or placed next to the techo which forms the top of each of said stories. Both phrasestherefore express the same idea with reference to the lower stories.

Aside from what has been said here, the object of the law in authorizing the opening of the windowsin question in all the stories of a building, without any exception, is clear. Their purpose is, as article581 itself says, to furnish light to the rooms, and it is evident at a glance that the rooms of the lowerstories have as much need for light as those of the top story. No good reason exists for having one

story in better condition than another, whichever it may be, connection with this provision of law.

The defendant is ordered to close finally and forever the window marked No. 1 in Exhibit A, thejudgment appealed from in so far as it refers to said window being thus modified, but affirmed in alother respects; without special finding as to costs in this instance.

Arellano, C.J., Johnson and Carson, JJ., concur.

Separate Opinions

MORELAND, J., dissenting:

I cannot conform to a decision which, in the twentieth century and in a civilized country, makes it anoffense for a person to put windows in his own house.

The law, if any (and I do not believe that the law invoked covers the case), upon which the decision isbased, together with the reasons for its existence, disappeared with the American occupation, andwith the advent of American institutions, Constitution and laws.

Moreover, it might be well be that such a law would seriously conflict with those laws, rules andregulations which are necessary to assure and preserve the public health.

G.R. No. L-18390 December 20, 1971

PEDRO J. VELASCO, plaintiff-appellant, vs. MANILA ELECTRIC CO., ET AL., defendants-appellees.

R E S O L U T I O N

REYES, J.B.L., J.:

Both appellant Velasco and appellee Manila Electric have filed their respective motions to reconsiderthe decision of this Court dated 6 August 1971. For the sake of clarity, the two motions will be here

dealt with separately.

A APPELLANT'S MOTION FOR RECONSIDERATION

The thrust of this motion is that the decision has incorrectly assessed appellant's damages andunreasonably reduced their amount. It is first argued that the decision erred in not taking into account,in computing appellant's loss of income, the appellant's undeclared income of P8,338.20, assessedby the Bureau of Internal Revenue for the year 1954, in addition to his declared income for that year(P10,975), it being argued that appellant never claim any other source of income besides hisprofessional earnings. Several circumstances of record disprove this claim. (1) That the amount of


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P8,338.20 was kept apart from ordinary earnings of appellant for the year 1954 (P10,975), and notdeclared with it, is in itself circumstantial evidence that it was not of comparable character. (2) If it waspart of his ordinary professional income, appellant was guilty of fraud in not declaring it and he shouldnot be allowed to derive advantage from his own wrongdoing. (3) The decision pointed out that byincluding the undeclared amount in appellant's disclosed professional earning for 1954, to a grandtotal of P19,313.20, the income for said year becomes abnormally high (in fact, more that double), ascompared to appellant's earnings for the preceding years, 1951-1953, that averaged not more thatP7,000 per annum. Such abnormality justifies the Court's refusal to consider the undisclosed

P8,338.20 as part of appellant's regular income for the purpose of computing the reduction in hisearnings as a result of the complained acts of appellee. (4) Finally, the true source of the undeclaredamount lay in appellant's own knowledge, but he chose not to disclose it; neither did he call upon theassessing revenue officer to reveal its character.

Appellant Velasco urges that the damages awarded him are inadequate considering the present highcost of living, and calls attention to Article 1250 of the present Civil Code, and to the doctrines laiddown in People vs. Pantoja G.R. No. L-18793, 11 October 1968, 25 SCRA 468. We do not deem therules invoked to be applicable. Article 1250 of the Civil Code is to the effect that:

ART. 1250. In case an extraordinary inflation or deflation of the currency stipulated

should supervene, the value of the currency at the time of the establishment of theobligation shall be the basis of payment, unless there is an agreement to the contrary.

It can be seen from the employment of the words "extraordinary inflation or deflation of thecurrency stipulated" that the legal rule envisages contractual obligations where a specific currency isselected by the parties as the medium of payment; hence it is inapplicable to obligations arising fromtort and not from contract, as in the case at bar, besides there being no showing that the factualassumption of the article has come into existence. As to the Pantoja ruling, the regard paid to thedecreasing purchase of the peso was considered a factor in estimating the indemnity due for loss oflife, which in itself is not susceptible of accurate estimation. It should not be forgotten that thedamages awarded to herein appellant were by no means full compensatory damages, since the

decision makes clear that appellant, by his failure to minimize his damages by means easily within hisreach, was declared entitled only to a reduced award for the nuisance sued upon (Steel vs. Rail &River Coal Co., 43 Ohio App. 228,182 N.E. 552); and the amount granted him had already taken intoaccount the changed economic circumstances.

Nor is the fact that appellant lost a chance to sell his house for P95,000 to Jose Valencia constitute aground for an award of damages in that amount. As remarked in the main decision, there is noadequate proof of loss, since there is no evidence of the depreciation in the market value of thehouse in question caused by the acts of defendant Meralco The house, after all, has remained withappellant and he admits in his motion for reconsideration (page 48) that properties have increased invalue by 200% since then.

For the foregoing reasons, the motion for reconsideration is denied.

B APPELLEE'S MOTION TO RECONSIDER

Appellee Manila Electric Company argues that in case the noise emitted by its substation can not bebrought down to the 50 decibel level imposed by our decision in chief, the remedy of the appellantwould be to compel appellee Company to acquire and pay for the value of the house, under the so-called doctrine of "inverse condemnation and cites in support our doctrines in Bengzon vs. Provinceof Pangasinan, 62 Phil. 816, and Republic vs. Philippine Long Distance Telephone Co., L-18841, 27January 1969, 26 SCRA 620-634. But as pointed out by appellant in his opposition, this issue was not


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raised, nor was the inverse condemnation doctrine invoked in the trial court, so that it would beimproper to consider it on appeal, and worse still, on a motion for reconsideration of the decision onthe merits. Furthermore, there is no showing that it is impossible to reduce the substation noise to thelevel decreed by this Court in the main decision. On the contrary, appellee's own evidence is that thenoise can be reduced by erecting a wall barrier on the line separating the substation lot and theproperty of appellant.

The version that appellee did not erect the wall because of the objections of appellant's wife was

denied by her, and there is no preponderance of evidence in favor of appellee on this point.Moreover, since it was appellant Dr. Velasco who complained, his wife's objection would not suffice toconstitute a waiver of his claim.

As to the petition to increase the sound level prescribed by his Court from 50 to 55 decibels on theground that present "ambient sound already ranges from 44 to 55 decibels in the mornings", thesame can not be granted. As shown by the evidence at the trial, the intensity of the noise emitted byappellee's transformers are most objectionable at night, when people are endeavoring to rest andsleep in compensation for the fatigue and tensions accumulated during daytime.

WHEREFORE, appellee's motion to reconsider is likewise denied.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor andMakasiar., JJ., concur.

G.R. No. 118114 December 7, 1995

TEODORO ACAP, petitioner, vs. COURT OF APPEALS and EDY DE LOS REYES, respondents.

PADILLA, J.:

This is a petition for review on certiorariof the decision 1of the Court of Appeals, 2nd Division, in CA-

G.R. No. 36177, which affirmed the decision 2of the Regional Trial Court of Himamaylan, NegrosOccidental holding that private respondent Edy de los Reyes had acquired ownership of Lot No. 1130of the Cadastral Survey of Hinigaran, Negros Occidental based on a document entitled "Declarationof Heirship and Waiver of Rights", and ordering the dispossession of petitioner as leasehold tenant ofthe land for failure to pay rentals.

The facts of the case are as follows:

The title to Lot No. 1130 of the Cadastral Survey of Hinigaran, Negros Occidental was evidenced byOCT No. R-12179. The lot has an area of 13,720 sq. meters. The title was issued and is registered inthe name of spouses Santiago Vasquez and Lorenza Oruma. After both spouses died, their only son

Felixberto inherited the lot. In 1975, Felixberto executed a duly notarized document entitled"Declaration of Heirship and Deed of Absolute Sale" in favor of Cosme Pido.

The evidence before the court a quo established that since 1960, petitioner Teodoro Acap had beenthe tenant of a portion of the said land, covering an area of nine thousand five hundred (9,500)meters. When ownership was transferred in 1975 by Felixberto to Cosme Pido, Acap continued to bethe registered tenant thereof and religiously paid his leasehold rentals to Pido and thereafter, uponPido's death, to his widow Laurenciana.


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The controversy began when Pido died intestate and on 27 November 1981, his surviving heirsexecuted a notarized document denominated as "Declaration of Heirship and Waiver of Rights of LotNo. 1130 Hinigaran Cadastre," wherein they declared; to quote its pertinent portions, that:

. . . Cosme Pido died in the Municipality of Hinigaran, Negros Occidental, he diedintestate and without any known debts and obligations which the said parcel of land is(sic) held liable.

That Cosme Pido was survived by his/her legitimate heirs, namely: LAURENCIANAPIDO, wife, ELY, ERVIN, ELMER, and ELECHOR all surnamed PIDO; children;

That invoking the provision of Section 1, Rule 74 of the Rules of Court, the above-mentioned heirs do hereby declare unto [sic] ourselves the only heirs of the late CosmePido and that we hereby adjudicate unto ourselves the above-mentioned parcel of landin equal shares.

Now, therefore, We LAURENCIANA 3, ELY, ELMER, ERVIN and ELECHOR alsurnamed PIDO, do hereby waive, quitclaim all our rights, interests and participationover the said parcel of landin favor of EDY DE LOS REYES, of legal age, (f)ilipino

married to VIRGINIA DE LOS REYES, and resident of Hinigaran, Negros Occidental,Philippines. . . . 4(Emphasis supplied)

The document was signed by all of Pido's heirs. Private respondent Edy de los Reyes did not signsaid document.

It will be noted that at the time of Cosme Pido's death, title to the property continued to be registeredin the name of the Vasquez spouses. Upon obtaining the Declaration of Heirship with Waiver ofRights in his favor, private respondent Edy de los Reyes filed the same with the Registry of Deeds aspart of a notice of an adverse claimagainst the original certificate of title.

Thereafter, private respondent sought for petitioner (Acap) to personally inform him that he (Edy) hadbecome the new owner of the land and that the lease rentals thereon should be paid to him. Privaterespondent further alleged that he and petitioner entered into an oral lease agreement whereinpetitioner agreed to pay ten (10) cavans of palay per annum as lease rental. In 1982, petitionerallegedly complied with said obligation. In 1983, however, petitioner refused to pay any further leaserentals on the land, prompting private respondent to seek the assistance of the then Ministry of

Agrarian Reform (MAR) in Hinigaran, Negros Occidental. The MAR invited petitioner to a conferencescheduled on 13 October 1983. Petitioner did not attend the conference but sent his wife instead tothe conference. During the meeting, an officer of the Ministry informed Acap's wife about privaterespondent's ownership of the said land but she stated that she and her husband (Teodoro) did notrecognize private respondent's claim of ownership over the land.

On 28 April 1988, after the lapse of four (4) years, private respondent filed a complaint for recovery ofpossession and damages against petitioner, alleging in the main that as his leasehold tenantpetitioner refused and failed to pay the agreed annual rental of ten (10) cavans of palay despiterepeated demands.

During the trial before the court a quo, petitioner reiterated his refusal to recognize privaterespondent's ownership over the subject land. He averred that he continues to recognize Cosme Pidoas the owner of the said land, and having been a registered tenant therein since 1960, he neverreneged on his rental obligations. When Pido died, he continued to pay rentals to Pido's widow. When


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the latter left for abroad, she instructed him to stay in the landholding and to pay the accumulatedrentals upon her demand or return from abroad.

Petitioner further claimed before the trial court that he had no knowledge about any transfer or sale ofthe lot to private respondent in 1981 and even the following year after Laurenciana's departure forabroad. He denied having entered into a verbal lease tenancy contract with private respondent andthat assuming that the said lot was indeed sold to private respondent without his knowledge, R.A.3844, as amended, grants him the right to redeem the same at a reasonable price. Petitioner also

bewailed private respondent's ejectment action as a violation of his right to security of tenure underP.D. 27.

On 20 August 1991, the lower court rendered a decision in favor of private respondent, the dispositivepart of which reads:

WHEREFORE, premises considered, the Court renders judgment in favor of theplaintiff, Edy de los Reyes, and against the defendant, Teodoro Acap, ordering thefollowing, to wit:

1. Declaring forfeiture of defendant's preferred right to issuance of a Certificate of Land

Transfer under Presidential Decree No. 27 and his farmholdings;

2. Ordering the defendant Teodoro Acap to deliver possession of said farm to plaintiff,and;

3. Ordering the defendant to pay P5,000.00 as attorney's fees, the sum of P1,000.00 asexpenses of litigation and the amount of P10,000.00 as actual damages. 5

In arriving at the above-mentioned judgment, the trial court stated that the evidence had establishedthat the subject land was "sold" by the heirs of Cosme Pido to private respondent. This is clear fromthe following disquisitions contained in the trial court's six (6) page decision:

There is no doubt that defendant is a registered tenant of Cosme Pido. However, whenthe latter died their tenancy relations changed since ownership of said land was passedon to his heirs who, by executing a Deed of Sale, which defendant admitted in hisaffidavit, likewise passed on their ownership of Lot 1130 to herein plaintiff (privaterespondent). As owner hereof, plaintiff has the right to demand payment of rental andthe tenant is obligated to pay rentals due from the time demand is made. . . . 6

xxx xxx xxx

Certainly, the sale of the Pido family of Lot 1130 to herein plaintiff does not of itself

extinguish the relationship. There was only a change of the personality of the lessor inthe person of herein plaintiff Edy de los Reyes who being the purchaser or transferee,assumes the rights and obligations of the former landowner to the tenant Teodoro Acap,herein defendant. 7

Aggrieved, petitioner appealed to the Court of Appeals, imputing error to the lower court when it ruledthat private respondent acquired ownership of Lot No. 1130 and that he, as tenant, should pay rentalsto private respondent and that failing to pay the same from 1983 to 1987, his right to a certificate ofland transfer under P.D. 27 was deemed forfeited.


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The Court of Appeals brushed aside petitioner's argument that the Declaration of Heirship and Waiverof Rights (Exhibit "D"), the document relied upon by private respondent to prove his ownership to thelot, was excluded by the lower court in its order dated 27 August 1990. The order indeed noted thatthe document was not identified by Cosme Pido's heirs and was not registered with the Registry ofDeeds of Negros Occidental. According to respondent court, however, since the Declaration ofHeirship and Waiver of Rights appears to have been duly notarized, no further proof of its dueexecution was necessary. Like the trial court, respondent court was also convinced that the saiddocument stands as prima facie proof of appellee's (private respondent's) ownership of the land in

dispute.

With respect to its non-registration, respondent court noted that petitioner had actual knowledge ofthe subjectsale of the land in dispute to private respondent because as early as 1983, he (petitioner)already knew of private respondent's claim over the said land but which he thereafter denied, and thatin 1982, he (petitioner) actually paid rent to private respondent. Otherwise stated, respondent courtconsidered this fact of rental payment in 1982 as estoppel on petitioner's part to thereafter refuteprivate respondent's claim of ownership over the said land. Under these circumstances, respondentcourt ruled that indeed there was deliberate refusal by petitioner to pay rent for a continued period offive years that merited forfeiture of his otherwise preferred right to the issuance of a certificate of landtransfer.

In the present petition, petitioner impugns the decision of the Court of Appeals as not in accord withthe law and evidence when it rules that private respondent acquired ownership of Lot No. 1130through the aforementioned Declaration of Heirship and Waiver of Rights.

Hence, the issues to be resolved presently are the following:

1. WHETHER OR NOT THE SUBJECT DECLARATION OF HEIRSHIP AND WAIVEROF RIGHTS IS A RECOGNIZED MODE OF ACQUIRING OWNERSHIP BY PRIVATERESPONDENT OVER THE LOT IN QUESTION.

2. WHETHER OR NOT THE SAID DOCUMENT CAN BE CONSIDERED A DEED OFSALE IN FAVOR OF PRIVATE RESPONDENT OF THE LOT IN QUESTION.

Petitioner argues that the Regional Trial Court, in its order dated 7 August 1990, explicitly excludedthe document marked as Exhibit "D" (Declaration of Heirship, etc.) as private respondent's evidencebecause it was not registered with the Registry of Deeds and was not identified by anyone of theheirs of Cosme Pido. The Court of Appeals, however, held the same to be admissible, it being anotarized document, hence, a prima facie proof of private respondents' ownership of the lot to which itrefers.

Petitioner points out that the Declaration of Heirship and Waiver of Rights is not one of the recognized

modes of acquiring ownership under Article 712 of the Civil Code. Neither can the same beconsidered a deed of sale so as to transfer ownership of the land to private respondent because noconsideration is stated in the contract (assuming it is a contract or deed of sale).

Private respondent defends the decision of respondent Court of Appeals as in accord with theevidence and the law. He posits that while it may indeed be true that the trial court excluded hisExhibit "D" which is the Declaration of Heirship and Waiver of Rights as part of his evidence, the triacourt declared him nonetheless owner of the subject lot based on other evidence adduced during thetrial, namely, the notice of adverse claim (Exhibit "E") duly registered by him with the Registry ofDeeds, which contains the questioned Declaration of Heirship and Waiver of Rights as an integralpart thereof.


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We find the petition impressed with merit.

In the first place, an asserted right or claim to ownership or a real right over a thing arising from ajuridical act, however justified, is not per se sufficient to give rise to ownership over the res. That rightor title must be completed by fulfilling certain conditions imposed by law. Hence, ownership and realrights are acquired only pursuant to a legal mode or process. While title is the juridical justification,mode is the actual process of acquisition or transfer of ownership over a thing in question. 8

Under Article 712 of the Civil Code, the modes of acquiring ownership are generally classified intotwo (2) classes, namely, the original mode (i.e., through occupation, acquisitive prescription, law orintellectual creation) and thederivative mode (i.e., through succession mortis causa or tradition as aresult of certain contracts, such as sale, barter, donation, assignment or mutuum).

In the case at bench, the trial court was obviously confused as to the nature and effect of theDeclaration of Heirship and Waiver of Rights, equating the same with a contract (deed) of sale. Theyare not the same.

In a Contract of Sale, one of the contracting parties obligates himself to transfer the ownership of andto deliver a determinate thing, and the other party to pay a price certain in money or its equivalent. 9

Upon the other hand, a declaration of heirship and waiver of rights operates as a public instrumentwhen filed with the Registry of Deeds whereby the intestate heirs adjudicate and divide the estate leftby the decedent among themselves as they see fit. It is in effect an extrajudicial settlement betweenthe heirs under Rule 74 of the Rules of Court. 10

Hence, there is a marked difference between a sale of hereditary rights and a waiverof hereditaryrights. The first presumes the existence of a contract or deed of sale between the parties. 11 Thesecond is, technically speaking, a mode of extinction of ownership where there is an abdication orintentional relinquishment of a known right with knowledge of its existence and intention to relinquishit, in favor of other persons who are co-heirs in the succession . 12 Private respondent, being then a

stranger to the succession of Cosme Pido, cannot conclusively claim ownership over the subject loton the sole basis of the waiver document which neither recites the elements of either a sale, 13 or adonation, 14 or any other derivative mode of acquiring ownership.

Quite surprisingly, both the trial court and public respondent Court of Appeals concluded that a "sale"transpired between Cosme Pido's heirs and private respondent and that petitioner acquired actuaknowledge of said sale when he was summoned by the Ministry of Agrarian Reform to discuss privaterespondent's claim over the lot in question. This conclusion has no basis both in fact and in law.

On record, Exhibit "D", which is the "Declaration of Heirship and Waiver of Rights" was excludedbythe trial court in its order dated 27 August 1990because the document was neither registered with

the Registry of Deeds nor identified by the heirs of Cosme Pido. There is no showing that privaterespondent had the same document attached to or made part of the record. What the trial courtadmitted was Annex "E", a notice of adverse claim filed with the Registry of Deeds which containedthe Declaration of Heirship with Waiver of rights and was annotated at the back of the OriginalCertificate of Title to the land in question.

A notice of adverse claim, by its nature, does not however prove private respondent's ownership overthe tenanted lot. "A notice of adverse claim is nothing but a notice of a claim adverse to the registeredowner, the validity of which is yet to be established in court at some future date, and is no better thana notice oflis pendenswhich is a notice of a case already pending in court." 15


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It is to be noted that while the existence of said adverse claim was duly proven, there is no evidencewhatsoever that a deed of sale was executed between Cosme Pido's heirs and private respondenttransferring the rights of Pido's heirs to the land in favor of private respondent. Private respondent'sright or interest therefore in the tenanted lot remains an adverse claim which cannot by itself besufficient to cancel the OCT to the land and title the same in private respondent's name.

Consequently, while the transaction between Pido's heirs and private respondent may bebinding on both parties, the right of petitioner as a registered tenant to the land cannot be

perfunctorily forfeited on a mere allegation of private respondent's ownership without thecorresponding proof thereof.

Petitioner had been a registered tenant in the subject land since 1960 and religiously paid leaserentals thereon. In his mind, he continued to be the registered tenant of Cosme Pido and his family(after Pido's death), even if in 1982, private respondent allegedly informed petitioner that he hadbecome the new owner of the land.

Under the circumstances, petitioner may have, in good faith, assumed such statement of privaterespondent to be true and may have in fact delivered 10 cavans of palay as annual rental for 1982 toprivate respondent. But in 1983, it is clear that petitioner had misgivings over private respondent's

claim of ownership over the said land because in the October 1983 MAR conference, his wifeLaurenciana categorically denied all of private respondent's allegations. In fact, petitioner evensecured a certificate from the MAR dated 9 May 1988 to the effect that he continued to be theregistered tenant of Cosme Pido and not of private respondent. The reason is that privaterespondent never registeredthe Declaration of Heirship with Waiver of Rights with the Registry ofDeeds or with the MAR. Instead, he (private respondent) sought to do indirectly what could not bedone directly,i.e., file a notice of adverse claim on the said lot to establish ownership thereover.

It stands to reason, therefore, to hold that there was no unjustified or deliberate refusalby petitionerto pay the lease rentals or amortizations to the landowner/agricultural lessor which, in this case,private respondent failed to establish in his favor by clear and convincing evidence. 16

Consequently, the sanction of forfeiture of his preferred right to be issued a Certificate of LandTransfer under P.D. 27 and to the possession of his farmholdings should not be applied againstpetitioners, since private respondent has not established a cause of action for recovery of possessionagainst petitioner.

WHEREFORE, premises considered, the Court hereby GRANTS the petition and the decision of theCourt of Appeals dated 1 May 1994 which affirmed the decision of the RTC of Himamaylan, NegrosOccidental dated 20 August 1991 is hereby SET ASIDE. The private respondent's complaint forrecovery of possession and damages against petitioner Acap is hereby DISMISSED for failure toproperly state a cause of action, without prejudice to private respondent taking the proper legal steps

to establish the legal mode by which he claims to have acquired ownership of the land in question.

SO ORDERED.

Davide, Jr., Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.

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