SOLID MANILA CORPORATION, petitioner, vs. BIO HONG TRADING CO.

,
INC. and COURT OF APPEALS, respondents.
SYLLABUS
1. CIVIL LAW; PROPERTY; OWNERSHIP AND ITS MODIFICATIONS; EASEMENTS
OR SERVITUDES; NATURE, CONSTRUED. Servitudes are merely accessories to the
tenements of which they form part. Although they are possessed of a separate juridical
existence, as mere accessories, they can not, however, be alienated from the tenement, or
mortgaged separately.
2. ID.; ID.; ID.; A LIMITATION ON THE RIGHT OF THE OWNER TO USE. An
easement operates as a limitation on the title of the owner of the servient estate, specifically,
his right to use ( jus utendi).
3. ID.; ID.; ID.; MODES OF EXTINGUISHMENT; MERGER, DEFINED. A merger
exists when ownership of the dominant and servient estates is consolidated in the same person.
Merger then, as can be seen, requires full ownership of both estates.
4. ID.; ID.; ID.; PERSONAL SERVITUDE; CONSTRUED. A personal servitude, is one
constituted not in favor of a particular tenement (a real servitude) but rather, for the benefit of
the general public. In a personal servitude, there is therefore no "owner of a dominant
tenement" to speak of, and the easement pertains to persons without a dominant estate, in this
case, the public at large.
5. REMEDIAL LAW; ACTIONS; SUMMARY JUDGMENT; WHEN PROPER.
Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine
issue as to the existence of a material fact, and the facts appear undisputed based on the
pleadings, depositions, admissions, and affidavits of record.
6. ID.; ID.; ID.; PURPOSE. Summary judgments are meant to rid a proceeding of the ritual
of a trial where, from existing records, the facts have been established, and trial would be
futile.
7. ID.; ID.; LAW OF THE CASE; CONSTRUED. "Law of the case" has been defined as
the opinion delivered on a former appeal. More specifically, it means that whatever is once
irrevocably established as the controlling legal rule of decision between the same parties in the
same case continues to be the law of the case, whether correct on general principles or not, so
long as the facts on which such decision was predicated continue to be the facts of the case
before the court. (21 C.J.S. 330)
8. ID.; ID.; FORUM SHOPPING. There is forum-shopping whenever, as a result of an
adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or
certiorari) in another. The principle applies not only with respect to suits filed in the courts but
also in connection with litigations commenced in the courts while an administrative
proceeding is pending.
D E C I S I O N SARMIENTO, J p:
This is an appeal filed by way of a petition for review on certiorari under Rule 45 of the Rules
of Court.
The petitioner raises two questions: (1) whether or not the Court of Appeals 1 erred in
reversing the trial court which had rendered summary judgment; and (2) whether or not it
erred in holding that an easement had been extinguished by merger.
We rule for the petitioner on both counts.
It appears that the petitioner is the owner of a parcel of land located in Ermita, Manila,
covered by Transfer Certificate of Title No. 157750 of the Register of Deeds of Manila. The
same lies in the vicinity of another parcel, registered in the name of the private
respondent corporation under Transfer Certificate of Title No. 128784.
The private respondent's title came from a prior owner, and in their deed of sale, the parties
thereto reserved as an easement of way:
. . . a portion thereof measuring NINE HUNDRED FOURTEEN
SQUARE METERS, more or less, had been converted into a private
alley for the benefit of neighboring estates, this being duly annotated at
the back of the covering Transfer Certificate of Title per regulations of
the Office of the City Engineer of Manila and that the three meterwide
portion of said parcel along the Pasig River, with an area of ONE
HUNDRED SEVENTY NINE (179) SQUARE METERS, more or less,
had actually been expropriated by the City Government, and developed
pursuant to the beautification drive of the Metro Manila Governor. (p. 3,
Record). 2
As a consequence, an annotation was entered in the private respondent's title, as follows:
Entry No. 7712/T-5000 CONSTRUCTION OF PRIVATE ALLEY
It is hereby made of record that a construction of private alley has
been undertaken on the lot covered by this title from Concepcion Street
to the interior of the aforesaid property with the plan and specification
duly approved by the City Engineer subject to the following conditions
to wit: (1) That the private alley shall be at least three (3) meters in
width; (2) That the alley shall not be closed so long as there's a building
exists thereon (sic); (3) That the alley shall be open to the sky; (4) That
the owner of the lot on which this private alley has been constituted
shall construct the said alley and provide same with concrete canals as
per specification of the City Engineer; (5) That the maintenance and
upkeep of the alley shall be at the expense of the registered owner; (6)
That the alley shall remain open at all times, and no obstructions
whatsoever shall be placed thereon; (7) That the owner of the lot on
which the alley has been constructed shall allow the public to use the
same, and allow the City to lay pipes for sewer and drainage purposes,
and shall not act (sic) for any indemnity for the use thereof; and (8) That
he shall impose upon the vendee or new owner of the property the
conditions abovementioned; other conditions set forth in Doc. No. 4236,
Page No. 11, Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila. 3
The petitioner claims that ever since, it had (as well as other residents of neighboring estates)
made use of the above private alley and maintained and contributed to its upkeep, until
sometime in 1983, when, and over its protests, the private respondent constructed steel gates
that precluded unhampered use.
On December 6, 1984, the petitioner commenced suit for injunction against the private
respondent, to have the gates removed and to allow full access to the easement. prLL
The court a quo shortly issued ex parte an order directing the private respondent to open the
gates. Subsequently, the latter moved to have the order lifted, on the grounds that: (1) the
easement referred to has been extinguished by merger in the same person of the dominant and
servient estates upon the purchase of the property from its former owner; (2) the petitioner has
another adequate outlet; (3) the petitioner has not paid any indemnity therefor; and (4) the
petitioner has not shown that the right-of-way lies at the point least prejudicial to the servient
estate.
The private respondent's opposition notwithstanding, the trial court issued a "temporary writ of
preliminary injunction to continue up to the final termination of the case upon its merits upon
the posting of a P5,000.00 bond by the plaintiff" 4 (the petitioner herein).
Thereafter, the respondent corporation answered and reiterated its above defenses.
On April 15, 1986, the petitioner moved for summary judgment and the court a quo ruled on
the same as follows:
In view of the foregoing, this Court finds it unnecessary to try this case
on the merit (sic) and hereby resolve (sic) to grant the plaintiff's motion
for summary judgment. (pp. 15-107, Record). 5
On January 19, 1987, the trial court rendered judgment against the private respondent, the
dispositive portion of which states:
WHEREFORE, judgment is hereby rendered making permanent the
temporary mandatory injunction, that had been issued against the
defendant, and for the defendant to pay the plaintiff the costs of this
suit.
The defendant's counterclaim against the plaintiff is hereby dismissed,
for lack of merit. (Summary Judgment, p. 6). 6
The private respondent appealed to the respondent Court of Appeals.
Meanwhile, the private respondent itself went to the Regional Trial Court on a petition for the
cancellation of the annotation in question. The court granted cancellation, for which the
petitioner instituted CA-G.R. SP No. 13421 of the respondent Court of Appeals which ordered
the restoration of the annotation "without prejudice [to] the final outcome of" 7 the private
respondent's own appeal (subject of this petition).
In reversing the trial court which had, as earlier mentioned, rendered summary judgment, the
respondent Court of Appeals held that the summary judgment was improper and that the lower
court erroneously ignored the defense set up by the private respondent that the easement in
question had been extinguished. According to the Appellate Court, an easement is a mere
limitation on ownership and that it does not impair the private respondent's title, and that since
the private respondent had acquired title to the property, "merger" brought about an
extinguishment of the easement.
The petitioner submits that the respondent Court of Appeals erred, because the very deed of
sale executed between the private respondent and the previous owner of the property
"excluded" the alley in question, and that in any event, the intent of the parties was to retain
the "alley" as an easement notwithstanding the sale. LLpr
As already stated at the outset, the Court finds merit in the petition.
There is no question that an easement, as described in the deed of sale executed between the
private respondent and the seller, had been constituted on the private respondent's property,
and has been in fact annotated at the back of Transfer Certificate of Title No. 128784.
Specifically, the same charged the private respondent as follows: "(6) That the alley shall
remain open at all times, and no obstructions whatsoever shall be placed thereon; (7) That the
owner of the lot on which the alley has been constructed shall allow the public to use the
same, and allow the City to lay pipes for sewer and drainage purposes, and shall not [ask] for
any indemnity for the use thereof . . . " 8 Its act, therefore, of erecting steel gates across the
alley was in defiance of these conditions and a violation of the deed of sale, and, of course, the
servitude of way.

The Court then is of the opinion that injunction was and is proper and in denying injunctive
relief on appeal, the respondent Appellate Court committed an error of judgment and law.
It is hardly the point, as the Court of Appeals held, that the private respondent is the owner of
the portion on which the right-of-way had been established and that an easement can not
impair ownership. The petitioner is not claiming the easement or any part of the property as its
own, but rather, it is seeking to have the private respondent respect the easement already
existing thereon. The petitioner is moreover agreed that the private respondent has ownership,
but that nonetheless, it has failed to observe the limitation or encumbrance imposed on the
same.
There is therefore no question as to ownership. The question is whether or not an easement
exists on the property, and as we indicated, we are convinced that an easement exists.
It is true that the sale did include the alley. On this score, the Court rejects the petitioner's
contention that the deed of sale "excluded" it, because as a mere right-of-way, it can not be
separated from the tenement and maintain an independent existence. Thus:
Art. 617. Easements are inseparable from the estate to which they
actively or passively belong. 9
Servitudes are merely accessories to the tenements of which they form part. 10 Although they
are possessed of a separate juridical existence, as mere accessories, they can not, however, be
alienated 12
The fact, however, that the alley in question, as an easement, is inseparable from the main lot
is no argument to defeat the petitioner's claims, because as an easement precisely, it operates
as a limitation on the title of the owner of the servient estate, specifically, his right to use ( jus
utendi).
As the petitioner indeed hastens to point out, the deed itself stipulated that "a portion thereof
[of the tenement] measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or
less, had been converted into a private alley for the benefit of the neighboring estates . .
." 13 and precisely, the former owner, in conveying the property, gave the private owner a
discount on account of the easement, thus:
WHEREAS, to compensate for the foregoing, the parties hereto agreed
to adjust the purchase price from THREE MILLION SEVEN
HUNDRED NINETY THOUSAND FOUR HUNDRED FORTY
PESOS (P3,790,440.) to THREE MILLION FIVE HUNDRED THREE
THOUSAND TWO HUNDRED FORTY PESOS (P3,503,240.00) 14
Hence, and so we reiterate, albeit the private respondent did acquire ownership over the
propertyincluding the disputed alley as a result of the conveyance, it did not acquire the
right to close that alley or otherwise put up obstructions thereon and thus prevent the public
from using it, because as a servitude, the alley is supposed to be open to the public.
The Court is furthermore of the opinion, contrary to that of the Court of Appeals, that no
genuine merger took place as a consequence of the sale in favor of the private
respondent corporation. According to the Civil Code, a merger exists when ownership of the
dominant and servient estates is consolidated in the same person. 15 Merger then, as can be
seen, requires full ownership of both estates.
One thing ought to be noted here, however. The servitude in question is a personal servitude,
that is to say, one constituted not in favor of a particular tenement (a real servitude) but rather,
for the benefit of the general public.
Personal servitudes are referred to in the following article of the Civil Code:
Art. 614. Servitudes may also be established for the benefit of a
community, or of one or more persons to whom the encumbered estate
does not belong. 16
In a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and
the easement pertains to persons without a dominant estate, 17 in this case, the public at large.
Merger, as we said, presupposes the existence of a prior servient-dominant owner relationship,
and the termination of that relation leaves the easement of no use. Unless the owner conveys
the property in favor of the public if that is possible no genuine merger can take place
that would terminate a personal easement. prLL
For this reason, the trial court was not in error in rendering summary judgment, and insofar as
the respondent Court of Appeals held that it (the trial court) was in error, the Court of Appeals
is in error.
Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine
issue as to the existence of a material fact, and the facts appear undisputed based on the
pleadings, depositions, admissions, and affidavits of record. 18 In one case, this Court upheld
a decision of the trial court rendered by summary judgment on a claim for money to which the
defendant interposed the defense of payment but which failed to produce receipts. 19 We held
that under the circumstances, the defense was not genuine but rather, sham, and which
justified a summary judgment. In another case, we rejected the claim of acquisitive
prescription over registered property and found it likewise to be sham, and sustained
consequently, a summary judgment rendered because the title challenged was covered by a
Torrens Certificate and under the law, Torrens titles are imprescriptible. 20
We also denied reconveyance in one case and approved a summary judgment rendered
thereon, on the ground that from the records, the plaintiffs were clearly guilty of laches having
failed to act until after twenty-seven years. 21 We likewise allowed summary judgment and
rejected contentions of economic hardship as an excuse for avoiding payment under a contract
for the reason that the contract imposed liability under any and all conditions. 22
In the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a sham one,
because as we said, merger is not possible, and secondly, the sale unequivocally preserved the
existing easement. In other words, the answer does not, in reality, tender any genuine issue on
a material fact and can not militate against the petitioner's clear cause of action.
As this Court has held, summary judgments are meant to rid a proceeding of the ritual of a
trial where, from existing records, 23 the facts have been established, and trial would be futile.
What indeed, argues against the posturing of the private respondent and consequently, the
challenged holding of the respondent Court of Appeals as well is the fact that the Court of
Appeals itself had rendered judgment, in its CA-G.R. No. 13421,
entitled Solid Manila Corporation v. Ysrael, in which it nullified the cancellation of the
easement annotated at the back of the private respondent's certificate of title ordered by Judge
Ysrael in LRC Case No. 273. As the petitioner now in fact insists, the Court of Appeals'
judgment, which was affirmed by this Court in its Resolution dated December 14, 1988, in
G.R. No. 83540, is at least, the law of the case between the parties, as "law of the case" is
known in law, e.g.:
xxx xxx xxx
"Law of the case" has been defined as the opinion delivered on a former
appeal. More specifically, it means that whatever is once irrevocably
established as the controlling legal rule of decision between the same
parties in the same case continues to be the law of the case, whether
correct on general principles or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before the
court. (21 C.J.S. 330).
It may be stated as a rule of general application that, where the evidence
on a second or succeeding appeal is substantially the same as that on the
first or preceding appeal, all matters, questions, points, or issues
adjudicated on the prior appeal are the law of the case on all subsequent
appeals and will not be considered or readjudicated therein. (5 C.J.S.
1267).
In accordance with the general rule stated in Section 1821, where, after
a definite determination, the court has remanded the cause for further
action below, it will refuse to examine question other than those arising
subsequently to such determination and remand, or other than the
propriety of the compliance with its mandate; and if the court below has
proceeded in substantial conformity to the directions of the appellate
court, its action will not be questioned on a second appeal.
As a general rule a decision on a prior appeal of the same case is held to
be the law of the case whether that decision is right or wrong, the
remedy of the party deeming himself aggrieved being to seek a
rehearing." (5 C.J.S. 1276-77).
Questions necessarily involved in the decision on a former appeal will
be regarded as the law of the case on a subsequent appeal, although the
questions are not expressly treated in the opinion of the court, as the
presumption is that all the facts in the case bearing on the point decided
have received due consideration whether all or none of them are
mentioned in the opinion. (5 C.J.S. 1286-87). 24
CA-G.R. No. 13421 is the law of the case because clearly, it was brought to determine the
rights of the parties regarding the easement, subject of the controversy in this case, although as
a petition for "cancellation of annotation" it may have, at a glance, suggested a different cause
of action.
And for reasons of fair play, the private respondent can not validly reject CA-G.R. No. 13421
as the law of the case, after all, it was the one that initiated the cancellation proceedings with
the Regional Trial Court in LRC No. 273 that precipitated that appeal. In the second place, the
proceedings for cancellation of annotation was in fact meant to preempt the injunction decreed
by the lower court in this case. Plainly and simply, the private respondent is guilty of forum-
shopping, as we have described the term:
xxx xxx xxx

There is forum-shopping whenever, as a result of an adverse opinion in
one forum, a party seeks a favorable opinion (other than by appeal or
certiorari) in another. The principle applies not only with respect to suits
filed in the courts but also in connection with litigations commenced in
the courts while an administrative proceeding is pending, as in this case,
in order to defeat administrative processes and in anticipation of an
unfavorable administrative ruling and a favorable court ruling. This is
specially so, as in this case, where the court in which the second suit
was brought, has no jurisdiction. 25
to which contempt is a penalty. 26
As it happened, in its effort to shop for a friendly forum, the private respondent found an
unfriendly court and it can not be made to profit from its act of malpractice by permitting it to
downgrade its finality and deny its applicability as the law of the case.
As a personal servitude, the right-of-way in question was established by the will of the owner.
In the interesting case of North Negros Sugar Co., Inc. v. Hidalgo, 27 this Court, speaking
through Justice Claro Recto, declared that a personal servitude (also a right of way in that
case) is established by the mere "act" 28 of the landowner, and is not "contractual in the
nature," 29 and a third party (as the petitioner herein is a third party) has the personality to
claim its benefits. In his separate opinion, however, Justice Jose Laurel maintained that a
personal or voluntary servitude does require a contract and that "[t]he act of the plaintiff in
opening the private way here involved did not constitute an offer .." 30 and "[t]here being no
offer, there could be no acceptance; hence no contract." 31
The Court sees no need to relive the animated exchanges between two legal titans (they would
contend even more spiritedly in the "larger" world of politics) to whom present scholars
perhaps owe their erudition and who, because of the paths they have taken, have shaped
history itself; after all, and coming back to the case at bar, it is not disputed that an easement
has been constituted, whereas it was disputed in North Negros' case. Rather, the question is
whether it is still existing or whether it has been extinguished. As we held, our findings is that
it is in existence and as a consequence, the private respondent can not bar the public, by
erecting an obstruction on the alley, from its use.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is SET
ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. The petitioner
and its counsel are hereby required to SHOW CAUSE why they should not be punished for
contempt of court, and also administratively dealt with in the case of counsel, for forum
shopping.
IT IS SO ORDERED.
||| (Solid Manila Corp. v. Bio Hong Trading Co., Inc., G.R. No. 90596, April 08,
1991)













BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF
APPEALS AND Heirs of MAGDALENO VALDEZ SR., respondents.

SYNOPSIS
This case involves a narrow lot known as Lot 954 of the Cadastral Survey of Medellin, Cebu
where the railroad tracks of the Bogo-Medellin Milling Co., Inc. (Bomedco) were laid and was
also registered in its name. However, herein respondent heirs of Magdaleno Valdez, Sr. filed a
complaint before the Regional Trial Court of Cebu City, Branch IX for payment of
compensation and/or recovery of possession of real property and damages against Bomedco
by claiming ownership of the said narrow lot. After trial, the court a quo rejected Bomedco's
defense of ownership on the basis of a prior sale. Nonetheless, it held that Bomedco had been
in possession of Cadastral Lot No. 954 in good faith for more than 10 years, thus, it had
already acquired ownership of the property through acquisitive prescription under Article 620
of the Civil Code. When this case was elevated to the Court of Appeals, the latter reversed the
trial court's decision. It held that Bomedco only acquired an easement of right of way by
unopposed and continuous use of the land, but not ownership, under Article 620 of the Civil
Code. Thus, it awarded compensation to the respondent heirs, to be computed from the time of
discovery of the adverse acts of Bomedco. Consequently, Bomedco interposed this
petition. caSDCA
The Court was inclined to believe the version of respondent heirs that an easement of the right
of way was actually granted to petitioner for which reason the latter was able to occupy
Cadastral Lot No. 954. It cannot disregard the fact that, for the years 1930, 1937, 1949, 1962
and 1963, petitioner unequivocally declared the property to be a "central railroad right of way"
or "sugar central railroad right of way" in its real estate tax receipts when it could have
declared it to be "industrial land" as it did for the years 1975 and 1985. Instead of indicating
ownership of the lot, these receipts showed that all petitioner had was possession by virtue of
the right of way granted to it. Moreover, the mere expiration of the period of easement in 1959
did not convert petitioner's possession into an adverse one. To be sure, beginning 1959 when
the original 30-year grant of right of way given to petitioner Bomedco expired, its occupation
and use of Cadastral Lot No. 954 came to be by mere tolerance of the respondent heirs. Thus,
upon demand by said heirs in 1989 for the return of the subject land and the removal of the
railroad tracks, or, in the alternative, payment of compensation for the use thereof, petitioner
Bomedco which had no title to the land should have returned the possession thereof or should
have begun paying compensation for its use.
Accordingly, the decision of the Court of Appeals was modified. Petitioner Bomedco was
ordered to vacate the subject land, remove its railway tracks thereon and return its possession
to respondent heirs.

SYLLABUS
1. CIVIL LAW; PROPERTY; PRESCRIPTION; EXTRAORDINARY ACQUISITIVE
PRESCRIPTION; POSSESSION MUST BE UNDER A CLAIM OF TITLE. There is no
dispute that the controversial strip of land has been in the continuous possession of petitioner
since 1929. But possession, to constitute the foundation of a prescriptive right, must be
possession under a claim of title, that is, it must be adverse. Unless coupled with the element
of hostility towards the true owner, possession, however long, will not confer title by
prescription.
2. ID.; ID.; EASEMENTS; PERSON CANNOT HAVE AN EASEMENT ON HIS OWN
LAND. [W]e are inclined to believe the version of respondent heirs that an easement of
right of way was actually granted to petitioner for which reason the latter was able to occupy
Cadastral Lot No. 954. We cannot disregard the fact that, for the years 1930, 1937, 1949, 1962
and 1963, petitioner unequivocally declared the property to be a "central railroad right of way"
or "sugar central railroad right of way" in its real estate tax receipts when it could have
declared it to be "industrial land" as it did for the years 1975 and 1985. Instead of
indicating ownership of the lot, these receipts showed that all petitioner had was possession by
virtue of the right of way granted to it. Were it not so and petitioner really owned the land,
petitioner would not have consistently used the phrases "central railroad right of way" and
"sugar central railroad right of way" in its tax declarations until 1963. Certainly an owner
would have found no need for these phrases. A person cannot have an easement on his own
land, since all the uses of an easement are fully comprehended in his general right of
ownership. DcTSHa
3. ID.; ID.; ID.; TAX DECLARATIONS CONSTITUTE STRONG EVIDENCE OF
OWNERSHIP OF THE LAND BUT DOES NOT APPLY IN CASES WHERE THE
PROPERTY IS DECLARED TO BE A MERE EASEMENT OF RIGHT OF WAY. While
it is true that, together with a person's actual and adverse possession of the land, tax
declarations constitute strong evidence of ownership of the land occupied by him, this legal
precept does not apply in cases where the property is declared to be a mere easement of right
of way.
4. ID.; ID.; ID.; ACKNOWLEDGMENT THEREOF IS AN ADMISSION THAT THE
PROPERTY BELONGS TO ANOTHER. An easement or servitude is a real right,
constituted on the corporeal immovable property of another, by virtue of which the owner has
to refrain from doing, or must allow someone to do, something on his property, for the benefit
of another thing or person. It exists only when the servient and dominant estates belong to two
different owners. It gives the holder of the easement an incorporeal interest on the land but
grants no title thereto. Therefore, an acknowledgment of the easement is an admission that the
property belongs to another. Having held the property by virtue of an easement, petitioner
cannot now assert that. its occupancy since 1929 was in the concept of an owner. Neither can
it declare that the 30-year period of extraordinary acquisitive prescription started from that
year.
5. ID.; ID.; ID.; MERE EXPIRATION OF THE PERIOD THEREOF DID NOT CONVERT
ONE'S POSSESSION INTO AN ADVERSE ONE. The mere expiration of the period of
easement in 1959 did not convert petitioner's possession into an adverse one. Mere material
possession of land is not adverse possession as against the owner and is insufficient to vest
title, unless such possession is accompanied by the intent to possess as an owner. There should
be a hostile use of such a nature and exercised under such circumstances as to manifest and
give notice that the possession is under a claim of right.
6. ID.; ID.; ID.; ID.; CASE AT BAR. In the absence of an express grant by the owner, or
conduct by petitioner sugar mill from which an adverse claim can be implied, its possession of
the lot can only be presumed to have continued in 'the same character as when it was acquired
(that is, it possessed the land only by virtue of the original grant of the easement of right of
way), or was by mere license or tolerance of the owners (respondent heirs). It is a fundamental
principle of law in this jurisdiction that acts of possessory character executed by virtue of
license or tolerance of the owner, no matter how long, do not start the running of the period of
prescription. After the grant of easement expired in 1959, petitioner never performed any act
incompatible with the ownership of respondent heirs over Cadastral Lot No. 954. On the
contrary, until 1963, petitioner continued to declare the "sugar central railroad right of way" in
its realty tax receipts, thereby doubtlessly conceding the ownership of respondent heirs.
Respondents themselves were emphatic that they simply tolerated petitioner's continued use of
Cadastral Lot No. 954 so as not to jeopardize the employment of one of their co-heirs in the
sugar mill of petitioner.
7. ID.; ID.; PRESCRIPTION; EXTRAORDINARY ACQUISITIVE PRESCRIPTION;
APPLICABLE BUT NOT COMPLIED WITH IN CASE AT BAR. The only time
petitioner assumed a legal position adverse to respondents' was when it filed a claim over the
property in 1965 during the cadastral survey of Medellin. Since then (1965) and until the
filing of the complaint for the recovery of the subject land before the RTC of Cebu in 1989,
only 24 years had lapsed. Since the required 30-year extraordinary prescriptive period had not
yet been complied with in 1989, petitioner never acquired ownership of the subject land.
8. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; LACHES; NOT CONSTITUTED
BY MERE LAPSE OF TIME OR DELAY. It is not just the lapse of time or delay that
constitutes laches. The essence of laches is the failure or neglect, for an unreasonable and
unexplained length of time, to do that which, through due diligence, could or should have been
done earlier, thus giving rise to a presumption that the party entitled to assert it had either
abandoned or declined to assert it. TEDaAc
9. ID.; ID.; ID.; ID.; ESSENTIAL ELEMENTS. Its essential elements are: (a) conduct on
the part of the defendant, or of one under whom he claims, giving rise to the situation
complained of; (b) delay in asserting complainant's rights after he had knowledge of
defendant's acts and after he has had the opportunity to sue; (c) lack of knowledge or notice by
defendant that the complainant will assert the right on which he bases his suit; and (d) injury
or prejudice to the defendant in the event the relief is accorded to the complainant.
10. ID.; ID.; ID.; ID.; ASPECTS OF DELAY IN ASSERTING COMPLAINANT'S RIGHTS.
The second element (which in turn has three aspects) is lacking in the case at bar. These
aspects are: (a) knowledge of defendant's action, (b) opportunity to sue defendant after
obtaining such knowledge and (c) delay in the filing of such suit.
11. ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. Records show that respondent
heirs only learned about petitioner's claim on their property when they discovered the
inscription for the cadastral survey in the records of the Bureau of Lands in 1989. Respondents
lost no time in demanding an explanation for said claim in their letters to the petitioner dated
March 1. 1989 and April 6. 1989. When petitioner ignored them, they instituted their
complaint before the Regional Trial Court of Cebu City on June 8, 1989.

12. ID.; ID.; ID.; ID.; CARO vs. COURT OF APPEALS AND VDA. DE ALBERTO vs.
COURT OF APPEALS; NOT APPLICABLE IN CASE AT BAR. Petitioner's reliance
on Caro vs.Court of Appeals and Vda. de Alberto vs.Court of Appeals is misplaced. There,
laches was applied to bar petitioners from questioning the ownership of the disputed properties
precisely because they had knowledge of the adverse claims on their properties yet tarried for
an extraordinary period of time before taking steps to protect their rights.
13. ID.; ID.; ID.; ID.; A RULE OF EQUITY. [T]here is no absolute rule on what
constitutes laches. It is a rule of equity and applied not to penalize neglect or sleeping on one's
rights but rather to avoid recognizing a right when to do so would result in a clearly unfair
situation. The question of lathes is addressed to the sound discretion of the court and each case
must be decided according to its particular circumstances. It is the better rule that courts, under
the principle of equity, should not be guided or bound strictly by the statute of limitations or
the doctrine of laches if wrong or injustice will result.
14. CIVIL LAW; PROPERTY; EASEMENTS; THE NATURE THEREOF WHETHER
CONTINUOUS OR DISCONTINUOUS IS IN ACCORDANCE TO THE MANNER THEY
ARE EXERCISED. Under civil law and its jurisprudence, easements are either continuous
or discontinuous according to the manner they are exercised, not according to the presence of
apparent signs or physical indications of the existence of such easements. Thus, an easement is
continuous if its use is, or may be, incessant without the intervention of any act of man, like
the easement of drainage; and it is discontinuous if it is used at intervals and depends on the
act of man, like the easement of right of way.
15. ID.; ID.; ID.; RIGHT OF WAY; CLASSIFIED AS DISCONTINUOUS. The easement
of right of way is considered discontinuous because it is exercised only if a person passes or
sets foot on somebody else's land. Like a road for the passage of vehicles or persons, an
easement of right of way of railroad tracks is discontinuous because the right is exercised only
if and when a train operated by a person passes over another's property. In other words, the
very exercise of the servitude depends upon the act or intervention of man which is the very
essence of discontinuous easements.
16. ID.; ID.; ID.; ID.; CANNOT BE ACQUIRED BY PRESCRIPTION. In Cuba, it has
been held that the existence of a permanent railway does not make the right of way a
continuous one; it is only apparent. Therefore, it cannot be acquired by prescription. In
Louisiana, it has also been held that a right of passage over another's land cannot be claimed
by prescription because this easement is discontinuous and can be established only by title.
17. ID.; ID.; ID.; ID.; CAN ONLY BE ACQUIRED BY TITLE. In this case, the presence
of railroad tracks for the passage of petitioner's trains denotes the existence of an apparent but
discontinuous easement of right of way. And under Article 622 of the Civil Code,
discontinuous easements, whether apparent or not, may be acquired only by
title. Unfortunately,
petitioner Bomedco never acquired any title over the use of the railroad right of way whether
by law, donation, testamentary succession or contract. Its use of the right of way, however
long, never resulted in its acquisition of the easement because, under Article 622, the
discontinuous easement of a railroad right of way can only be acquired by titleand not by
prescription. DCTSEA
18. ID.; ID.; ID.; PRESENCE OF PHYSICAL OR VISUAL SIGNS CLASSIFIES AN
EASEMENT INTO APPARENT OR NONAPPARENT. The presence of more or less
permanent railroad tracks does not in any way convert the nature of an easement of right of
way to one that is continuous. It is not the presence of apparent signs or physical
indicationsshowing the existence of an easement, but rather the manner of exercise
thereof, that categorizes such easement into continuous or discontinuous. The presence of
physical or visual signs only classifies an easement into apparent or non-apparent. Thus, a
road (which reveals a right of way) and a window (which evidences a right to light and view)
are apparent easements, while an easement of not building beyond a certain height is non-
apparent.
19. ID.; ID.; ID.; RIGHT OF WAY; AFTER THE EXPIRATION OF THE ORIGINAL
GRANT THEREOF, ITS POSSESSION SHOULD BE RETURNED TO THE OWNER OR
THE POSSESSOR SHOULD HAVE BEGUN PAYING COMPENSATION FOR ITS USE.
To be sure, beginning 1959 when the original 30-year grant of right of way given to
petitioner Bomedco expired, its occupation and use of Cadastral Lot No. 954 came to be by
mere tolerance of the respondent heirs. Thus, upon demand by said heirs in 1989 for the return
of the subject land and the removal of the railroad tracks, or, in the alternative, payment of
compensation for the use thereof, petitioner Bomedco which had no title to the land should
have returned the possession thereof or should have begun paying compensation for its use.
20. ID.; ID.; ID.; ID.; WHEN A PARTY IS DEEMED TO ACQUIRE TITLE OVER THE
USE OF LAND. But when is a party deemed to acquire title over the use of such land (that
is, title over the easement of right of way)? In at least two cases, we held that if: (a) it had
subsequently entered into a contractual right of way with the heirs for the continued use of the
land under the principles of voluntary easements or (b) it had filed a case against the heirs for
conferment on it of a legal easement of right of way under Article 629 of the Civil Code, then
title over the use of the land is deemed to exist.
21. ID.; ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. None of the above options
to acquire title over the railroad right of way was ever pursued by petitioner despite the fact
that simple resourcefulness demanded such initiative, considering the importance of the
railway tracks to its business. No doubt, it is unlawfully occupying and using the subject strip
of land as a railroad right of way without valid title yet it refuses to vacate it even after
demand of the heirs. Furthermore, it tenaciously insists on ownership thereof despite a clear
showing to the contrary. We thus uphold the grant by the Court of Appeals of attorney's fees
in the amount of P10,000 considering the evident bad faith of petitioner in refusing
respondents' just and lawful claims, compelling the latter to litigate. CcAITa
22. ID.; ID.; ID.; ID.; REQUISITES FOR CONFERMENT THEREOF. The conferment of
a legal easement of right of way under Article 629 is subject to proof of the following: (1) it is
surrounded by other immovables and has no adequate outlet to a public highway; (2) payment
of proper indemnity; (3) the isolation is not the result of its own acts; and (4) the right of way
claimed is at the point least prejudicial to the servient estate, and, insofar as consistent with
this rule, the distance from the dominant estate to the highway is the shortest.

D E C I S I O N CORONA, J p:
This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to annul and set
aside the decision 1 dated November 17, 1995 of the Court of Appeals, Tenth Division, which
reversed the decision 2 dated November 27, 1991 of the Regional Trial Court of Cebu City,
Branch IX, which ruled in favor of herein petitioner, Bogo-Medellin Milling Company, Inc.
and dismissed herein private respondents' complaint for payment of compensation and/or
recovery of possession of real property and damages with application for restraining order
preliminary injunction; and its resolution dated March 2, 1996 denying petitioner's motion for
reconsideration. aHcDEC
The antecedent facts follow.
Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez, Angelina Valdez-
Novabos, Teresita Argawanon-Mangubat and Daylinda Argawanon-Melendres (hereafter the
heirs), purchased from Feliciana Santillan, on December 9, 1935, a parcel of unregistered land
covered by Tax Declaration No. 3935 with an area of one hectare, 34 ares and 16 centares,
located in Barrio Dayhagon, Medellin, Cebu. 3 He took possession of the property and
declared it for tax purposes in his name. 4
Prior to the sale, however, the entire length of the land from north to south was already
traversed in the middle by railroad tracks owned by petitioner Bogo-Medellin Milling Co., Inc.
(hereafter Bomedco). The tracks were used for hauling sugar cane from the fields to
petitioner's sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents inherited the
land. However, unknown to them, Bomedco was able to have the disputed middle lot which
was occupied by the railroad tracks placed in its name in the Cadastral Survey of Medellin,
Cebu in 1965. The entire subject land was divided into three, namely, Cadastral Lot Nos. 953,
954 and 955. Lot Nos. 953 and 955 remained in the name of private respondents. However,
Lot No. 954, the narrow lot where the railroad tracks lay, was claimed by Bomedco as its own
and was declared for tax purposes in its name. 5
It was not until 1989 when private respondents discovered the aforementioned claim of
Bomedco on inquiry with the Bureau of Lands. Through their lawyer, they immediately
demanded the legal basis for Bomedco's claim over Cadastral Lot No. 954 but their letter of
inquiry addressed to petitioner went unheeded, as was their subsequent demand for payment of
compensation for the use of the land. 6
On June 8, 1989, respondent heirs filed a "Complaint for Payment of Compensation and/or
Recovery of Possession of Real Property and Damages with Application for Restraining
Order/Preliminary Injunction" against Bomedco before the Regional Trial Court of
Cebu. 7 Respondent heirs alleged that, before she sold the land to Valdez, Sr. in 1935,
Santillan granted Bomedco, in 1929, a railroad right of way for a period of 30 years. When
Valdez, Sr. acquired the land, he respected the grant. The right of way expired sometime in
1959 but respondent heirs allowed Bomedco to continue using the land because one of them
was then an employee of the company. 8

In support of the complaint, they presented an ancient document an original copy of the
deed of sale written in Spanish and dated December 9, 1935 9 to evidence the sale of the
land to Magdaleno Valdez, Sr.; several original estate tax receipts 10 including Real Property
Tax Receipt No. 3935 11 dated 1922 in the name of Graciano de los Reyes, husband of
Feliciana Santillan, and Real Property Tax Receipt No. 09491 12 dated 1963 in the name of
Magdaleno Valdez, Sr. Magdaleno Valdez, Jr. also testified for the plaintiffs during the trial.
On the other hand, Bomedco's principal defense was that it was the owner and possessor of
Cadastral Lot No. 954, having allegedly bought the same from Feliciana Santillan in 1929,
prior to the sale of the property by the latter to Magdaleno Valdez, Sr. in 1935. It also
contended that plaintiffs' claim was already barred by prescription and laches because of
Bomedco's open and continuous possession of the property for more than 50 years. SDTaHc
Bomedco submitted in evidence a Deed of Sale 13 dated March 18, 1929; seven real estate tax
receipts 14 for the property covering the period from 1930 to 1985; a 1929 Survey Plan of
private land for Bogo-Medellin Milling Company; 15 a Survey Notification Card; 16 Lot Data
Computation for Lot No. 954; 17 a Cadastral Map for Medellin Cadastre18 as well as the
testimonies of Vicente Basmayor, Geodetic Engineer and property custodian for Bomedco,
and Rafaela A. Belleza, Geodetic Engineer and Chief of the Land Management Services of the
DENR, Region VIII.
In its decision dated November 27, 1991, the trial court 19 rejected Bomedco's defense of
ownership on the basis of a prior sale, citing that its evidence a xerox copy of the Deed of
Sale dated March 18, 1929 was inadmissible and had no probative value. Not only was it
not signed by the parties but defendant Bomedco also failed to present the original copy
without valid reason pursuant to Section 4, Rule 130 of the Rules of Court. 20
Nonetheless, the trial court held that Bomedco had been in possession of Cadastral Lot No.
954 in good faith for more than 10 years, thus, it had already acquired ownership of the
property through acquisitive prescription under Article 620 of the Civil Code. It explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT
easements can be acquired by prescription after ten (10) years. The
"apparent" characteristic of the questioned property being used by
defendant as an easement is no longer at issue, because plaintiffs
themselves had acknowledged that the existence of the railway tracks of
defendant Bomedco was already known by the late Magdaleno Valdez,
herein plaintiffs' predecessor-in-interest, before the late Magdaleno
Valdez purchased in 1935 from the late Feliciana Santillan the land
described in the Complaint where defendant's railway tracks is
traversing [sic] (TSN of February 5, 1991, pp. 7-8). As to the continuity
of defendant's use of the strip of land as easement is [sic] also manifest
from the continuous and uninterrupted occupation of the questioned
property from 1929 up to the date of the filing of the instant Complaint.
In view of the defendant's UNINTERRUPTED possession of the strip
of land for more than fifty (50) years, the Supreme Court's ruling in the
case of Ronquillo, et al. v. Roco, et al. (103 Phil 84) is not applicable.
This is because in said case the easement in question was a strip of dirt
road whose possession by the dominant estate occurs only everytime
said dirt road was being used by the dominant estate. Such fact would
necessarily show that the easement's possession by the dominant estate
was never continuous. In the instant case however, there is clear
continuity of defendant's possession of the strip of land it had been
using as railway tracks. Because the railway tracks which defendant had
constructed on the questioned strip of land had been CONTINUOUSLY
occupying said easement. Thus, defendant Bomedco's apparent and
continuous possession of said strip of land in good faith for more than
ten (10) years had made defendant owner of said strip of land traversed
by its railway tracks. Because the railway tracks which defendant had
constructed on the questioned strip of land had been continuously
occupying said easement [sic]. Thus, defendant Bomedco's apparent
and continuous possession of said strip of land in good faith for more
than ten (10) years had made defendant owner of said strip of land
traversed by its railway tracks.
Respondent heirs elevated the case to the Court of Appeals which found that Bomedco did not
acquire ownership over the lot. It consequently reversed the trial court. In its decision dated
November 17, 1995, the appellate court held that Bomedco only acquired an easement of right
of way by unopposed and continuous use of the land, but not ownership, under Article 620 of
the Civil Code.
The appellate court further ruled that Bomedco's claim of prior sale to it by Feliciana Santillan
was untrue. Its possession being in bad faith, the applicable prescriptive period in order to
acquire ownership over the land was 30 years under Article 1137 of the Civil Code. Adverse
possession of the property started only in 1965 when Bomedco registered its claim in the
cadastral survey of Medellin. Since only 24 years from 1965 had elapsed when the heirs filed
a complaint against Bomedco in 1989, Bomedco's possession of the land had not ripened into
ownership.
And since there was no showing that respondent heirs or their predecessor-in-interest was ever
paid compensation for the use of the land, the appellate court awarded compensation to them,
to be computed from the time of discovery of the adverse acts of Bomedco. HScaCT
Its motion for reconsideration having been denied by the appellate court in its resolution dated
March 22, 1996, Bomedco now interposes before us this present appeal by certiorari under
Rule 45, assigning the following errors:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR
WHEN IT REVERSED AND SET ASIDE THE TRIAL COURT'S
DECISION DISMISSING PRIVATE RESPONDENT'S COMPLAINT.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR
WHEN IT ORDERED THE PETITIONER TO PAY THE PRIVATE
RESPONDENT THE REASONABLE VALUE OF LOT 954 AND
THE AMOUNT OF TEN THOUSAND (P10,000.00) PESOS AS
REASONABLE ATTORNEY'S FEES.
Petitioner Bomedco reiterates its claim of ownership of the land through extraordinary
acquisitive prescription under Article 1137 of the Civil Code and laches to defeat the claim
for compensation or recovery of possession by respondent heirs. It also submits a third ground
originally tendered by the trial court acquisition of the easement of right of way by
prescription under Article 620 of the Civil Code.
EXTRAORDINARY ACQUISITIVE PRESCRIPTION UNDER ART. 1137 OF THE CIVIL
CODE
Petitioner's claim of ownership through extraordinary acquisitive prescription under Article
1137 of the Civil Code cannot be sustained.
There is no dispute that the controversial strip of land has been in the continuous possession of
petitioner since 1929. But possession, to constitute the foundation of a prescriptive right, must
be possession under a claim of title, that is, it must be adverse. 21 Unless coupled with the
element of hostility towards the true owner, possession, however long, will not confer title by
prescription. 22
After a careful review of the records, we are inclined to believe the version of respondent heirs
that an easement of right of way was actually granted to petitioner for which reason the latter
was able to occupy Cadastral Lot No. 954. We cannot disregard the fact that, for the years
1930, 1937, 1949, 1962 and 1963, petitioner unequivocally declared the property to be a
"central railroad right of way" or "sugar central railroad right of way" in its real estate tax
receipts when it could have declared it to be "industrial land" as it did for the years 1975 and
1985. 23 Instead of indicating ownership of the lot, the receipts showed that all petitioner had
was possession by virtue of the right of way granted to it. Were it not so and petitioner really
owned the land, petitioner would not have consistently used the phrases "central railroad right
of way" and "sugar central railroad right of way" in its tax declarations until 1963. Certainly
an owner would have found no need for these phrases. A person cannot have an easement on
his own land, since all the uses of an easement are fully comprehended in his general right of
ownership. 24
While it is true that, together with a person's actual and adverse possession of the land, tax
declarations constitute strong evidence of ownership of the land occupied by him,25 this legal
precept does not apply in cases where the property is declared to be a mere easement of right
of way.
An easement or servitude is a real right, constituted on the corporeal immovable property of
another, by virtue of which the owner has to refrain from doing, or must allow someone to do,
something on his property, for the benefit of another thing or person. It exists only when the
servient and dominant estates belong to two different owners. It gives the holder of the
easement an incorporeal interest on the land but grants no title thereto. Therefore, an
acknowledgment of the easement is an admission that the property belongs to another. 26
Having held the property by virtue of an easement, petitioner cannot now assert that its
occupancy since 1929 was in the concept of an owner. Neither can it declare that the 30-year
period of extraordinary acquisitive prescription started from that year.
Petitioner, however, maintains that even if a servitude was merely imposed on the property in
its favor, its possession immediately became adverse to the owner in the late 1950's when the
grant was alleged by respondent heirs to have expired. It stresses that, counting from the late
1950's (1959 as found by the trial court), the 30-year extraordinary acquisitive prescription
had already set in by the time respondent heirs made a claim against it in their letters dated
March 1 and April 6, 1989.

We do not think so. The mere expiration of the period of easement in 1959 did not convert
petitioner's possession into an adverse one. Mere material possession of land is not adverse
possession as against the owner and is insufficient to vest title, unless such possession is
accompanied by the intent to possess as an owner. 27 There should be a hostile use of such a
nature and exercised under such circumstances as to manifest and give notice that the
possession is under a claim of right.
In the absence of an express grant by the owner, or conduct by petitioner sugar mill from
which an adverse claim can be implied, its possession of the lot can only be presumed to have
continued in the same character as when it was acquired (that is, it possessed the land only by
virtue of the original grant of the easement of right of way), 28or was by mere license or
tolerance of the owners (respondent heirs). 29 It is a fundamental principle of law in this
jurisdiction that acts of possessory character executed by virtue of license or tolerance of the
owner, no matter how long, do not start the running of the period of prescription. 30
After the grant of easement expired in 1959, petitioner never performed any act incompatible
with the ownership of respondent heirs over Cadastral Lot No. 954. On the contrary, until
1963, petitioner continued to declare the "sugar central railroad right of way" in its realty tax
receipts, thereby doubtlessly conceding the ownership of respondent heirs. Respondents
themselves were emphatic that they simply tolerated petitioner's continued use of Cadastral
Lot No. 954 so as not to jeopardize the employment of one of their co-heirs in the sugar mill
of petitioner. 31
The only time petitioner assumed a legal position adverse to respondents' was when it filed a
claim over the property in 1965 during the cadastral survey of Medellin. Since then (1965)
and until the filing of the complaint for the recovery of the subject land before the RTC of
Cebu in 1989, only 24 years had lapsed. Since the required 30-year extraordinary prescriptive
period had not yet been complied with in 1989, petitioner never acquired ownership of the
subject land. HIAESC
LACHES
Neither can petitioner find refuge in the principle of laches. It is not just the lapse of time or
delay that constitutes laches. The essence of laches is the failure or neglect, for an
unreasonable and unexplained length of time, to do that which, through due diligence, could or
should have been done earlier, thus giving rise to a presumption that the party entitled to assert
it had either abandoned or declined to assert it. 32
Its essential elements are: (a) conduct on the part of the defendant, or of one under whom he
claims, giving rise to the situation complained of; (b) delay in asserting complainant's rights
after he had knowledge of defendant's acts and after he has had the opportunity to sue; (c) lack
of knowledge or notice by defendant that the complainant will assert the right on which he
bases his suit; and (d) injury or prejudice to the defendant in the event the relief is accorded to
the complainant. 33
The second element (which in turn has three aspects) is lacking in the case at bar. These
aspects are: (a) knowledge of defendant's action, (b) opportunity to sue defendant after
obtaining such knowledge and (c) delay in the filing of such suit. 34
Records show that respondent heirs only learned about petitioner's claim on their property
when they discovered the inscription for the cadastral survey in the records of the Bureau of
Lands in 1989. Respondents lost no time in demanding an explanation for said claim in their
letters to the petitioner dated March 1, 1989 and April 6, 1989. When petitioner ignored them,
they instituted their complaint before the Regional Trial Court of Cebu City on June 8, 1989.
Petitioner's reliance on Caro vs. Court of Appeals 35 and Vda. de Alberto vs. Court of
Appeals 36 is misplaced. There, laches was applied to bar petitioners from questioning the
ownership of the disputed properties precisely because they had knowledge of the adverse
claims on their properties yet tarried for an extraordinary period of time before taking steps to
protect their rights.
Further, there is no absolute rule on what constitutes laches. It is a rule of equity and applied
not to penalize neglect or sleeping on one's rights but rather to avoid recognizing a right when
to do so would result in a clearly unfair situation. The question of laches is addressed to the
sound discretion of the court and each case must be decided according to its particular
circumstances. 37 It is the better rule that courts, under the principle of equity, should not be
guided or bound strictly by the statute of limitations or the doctrine of laches if wrong or
injustice will result.
It is clear that petitioner never acquired ownership over Cadastral Lot No. 954 whether by
extraordinary acquisitive prescription or by laches.
ACQUISITION OF EASEMENT OF RIGHT OF WAY BY PRESCRIPTION UNDER ART.
620 OF THE CIVIL CODE
Petitioner contends that, even if it failed to acquire ownership of the subject land, it
nevertheless became legally entitled to the easement of right of way over said land by virtue of
prescription under Article 620 of the Civil Code:
Continuous and apparent easements are acquired either by virtue of a
title or by prescription of ten years.
The trial court and the Court of Appeals both upheld this view for the reason that the railroad
right of way was, according to them, continuous and apparent in nature. The more or less
permanent railroad tracks were visually apparent and they continuously occupied the subject
strip of land from 1959 (the year the easement granted by Feliciana Santillan to petitioner
expired). Thus, with the lapse of the 10-year prescriptive period in 1969, petitioner supposedly
acquired the easement of right of way over the subject land.
Following the logic of the courts a quo, if a road for the use of vehicles or the passage of
persons is permanently cemented or asphalted, then the right of way over it becomes
continuous in nature. The reasoning is erroneous.
Under civil law and its jurisprudence, easements are either continuous or discontinuous
according to the manner they are exercised, not according to the presence of apparent signs or
physical indications of the existence of such easements. Thus, easement is continuous if its use
is, or may be, incessant without the intervention of any act of man, like the easement of
drainage; 38 and it is discontinuous if it is used at intervals and depends on the act of man, like
the easement of right of way. 39
The easement of right of way is considered discontinuous because it is exercised only if a
person passes or sets foot on somebody else's land. Like a road for the passage of vehicles or
persons, an easement of right of way of railroad tracks is discontinuous because the right is
exercised only if and when a train operated by a person passes over another's property. In
other words, the very exercise of the servitude depends upon the act or intervention of man
which is the very essence of discontinuous easements.
The presence of more or less permanent railroad tracks does not in any way convert the nature
of an easement of right of way to one that is continuous. It is not the presence of apparent
signs or physical indications showing the existence of an easement, but rather the manner of
exercise thereof, that categorizes such easement into continuous or discontinuous. The
presence of physical or visual signs only classifies an easement into apparent or non-
apparent. Thus, a road (which reveals a right of way) and a window (which evidences a right
to light and view) are apparent easements, while an easement of not building beyond a certain
height is non-apparent. 40
In Cuba, it has been held that the existence of a permanent railway does not make the right of
way a continuous one; it is only apparent. Therefore, it cannot be acquired by
prescription. 41 In Louisiana, it has also been held that a right of passage over another's land
cannot be claimed by prescription because this easement is discontinuous and can be
established only by title. 42
In this case, the presence of railroad tracks for the passage of petitioner's trains denotes the
existence of an apparent but discontinuous easement of right of way. And underArticle 622 of
the Civil Code, discontinuous easements, whether apparent or not, may be acquired only by
title. Unfortunately, petitioner Bomedco never acquired any title over the use of the railroad
right of way whether by law, donation, testamentary succession or contract. Its use of the right
of way, however long, never resulted in its acquisition of the easement because; under Article
622, the discontinuous easement of a railroad right of way can only be acquired by title and
not by prescription.
To be sure, beginning 1959 when the original 30-year grant of right of way given to petitioner
Bomedco expired, its occupation and use of Cadastral Lot No. 954 came to be by mere
tolerance of the respondent heirs. Thus, upon demand by said heirs in 1989 for the return of
the subject land and the removal of the railroad tracks, or, in the alternative, payment of
compensation for the use thereof, petitioner Bomedco which had no title to the land should
have returned the possession thereof or should have begun paying compensation for its use.
But when is a party deemed to acquire title over the use of such land (that is, title over the
easement of right of way)? In at least two cases, we held that if: (a) it had subsequently
entered into contractual right of way with the heirs for the continued use of the land under the
principles of voluntary easements or (b) it had filed a case against the heirs for conferment on
it of a legal easement of right of way under Article 629 of the Civil Code, then title over
the use of the land is deemed to exist. The conferment of a legal easement of right of way
under Article 629 is subject to proof of the following:

(1) it is surrounded by other immovables and has no adequate outlet to a
public highway;
(2) payment of proper indemnity;
(3) the isolation is not the result of its own acts; and
(4) the right of way claimed is at the point least prejudicial to the
servient estate, and, insofar as consistent with this rule, the
distance from the dominant estate to the highway is the
shortest. 43
None of the above options to acquire title over the railroad right of way was ever pursued by
petitioner despite the fact that simple resourcefulness demanded such initiative, considering
the importance of the railway tracks to its business. No doubt, it is unlawfully occupying and
using the subject strip of land as a railroad right of way without valid title yet it refuses to
vacate it even after demand of the heirs. Furthermore, it tenaciously insists on ownership
thereof despite a clear showing to the contrary.
We thus uphold the grant by the Court of Appeals of attorney's fees in the amount of P10,000
considering the evident bad faith of petitioner in refusing respondents' just and lawful claims,
compelling the latter to litigate. 44
WHEREFORE, the petition is DENIED. The appealed decision dated November 17, 1995 and
resolution dated March 2, 1996 of the Court of Appeals are AFFIRMED with
MODIFICATION. Petitioner Bogo-Medellin Milling Company, Inc. is hereby ordered to
vacate the subject strip of land denominated as Cadastral Lot No. 954, remove its railway
tracks thereon and return its possession to the private respondents, the heirs of Magdaleno
Valdez, Sr. It is also hereby ordered to pay private respondents attorney's fees in the amount of
P10,000. SEDaAH
SO ORDERED












[G.R. No. 80511. January 25, 1991.]
COSTABELLA CORPORATION, petitioner, vs. COURT OF APPEALS,
KATIPUNAN LUMBER CO., INC., AURORA BUSTOS LOPEZ, MANUEL
S. SATORRE, JR., JOSEFA C. REVILLES, FELIX TIUKINHOY, JR.,
PERFECTA L. CHUANGCO, and CESAR T. ESPINA, respondents.

SYLLABUS
1. CIVIL LAW; EASEMENT; RIGHT OF WAY; CANNOT BE ACQUIRED BY
PRESCRIPTION. It is already well-established that an easement of right of way is
discontinous and as such can not be acquired by prescription.
2. ID.; ID.; ID.; REQUISITES OF COMPULSORY DEMAND THEREOF. Based on
Articles 649 and 650 of the New Civil Code, the owner of the dominant estate may validly
claim a compulsory right of way only after he has established the existence of four requisites,
to wit: (1) the (dominant) estate is surrounded by other immovables and is without adequate
outlet to a public highway; (2) after payment of the proper indemnity; (3) the isolation was not
due to the proprietor's own acts; and (4) the right of way claimed is at a point least prejudicial
to the servient estate. Additionally, the burden of proving the existence of the foregoing pre-
requisites lies on the owner of the dominant estate.
3. ID.; ID.; ID.; STANDARD FOR GRANT. The true standard for the grant of the legal
right is "adequacy." Hence, when there is already an existing adequate outlet from the
dominant estate to a public highway, even if the said outlet, for one reason or another, be
inconvenient, the need to open up another servitude is entirely unjustified. For to justify the
imposition of an easement of right of way, "there must be a real, not a fictitious or artificial
necessity for it."
4. ID.; ID.; ID.; DEMANDED BY NECESSITY. Servitudes of right of way are an ancient
concept, which date back to the iter, actus, and via of the Romans. They are demanded by
necessity, that is, to enable owners of isolated estates to make full use of their properties,
which lack of access to public roads has denied them. Under Article 649 of the Civil Code,
they are compulsory and hence, legally demandable, subject to indemnity and the concurrence
of the other conditions above-referred to.
5. ID.; ID.; ID.; CRITERIA FOR GRANT. But while a right of way is legally demandable,
the owner of the dominant estate is not at liberty to impose one based on arbitrary choice.
Under Article 650 of the Code, it shall be established upon two criteria: (1) at the point least
prejudicial to the servient estate; and (2) where the distance to a public highway may be the
shortest. According, however, to one commentator, "least prejudice" prevails over "shortest
distance." Yet each case must be weighed according to its individual merits and judged
according to the sound discretion of the court. "The Court," says Tolentino, "is not bound to
establish what is the shortest; a longer way may be established to avoid injury to the servient
tenement, such as when there are constructions or walls which can be avoided by a roundabout
way, or to secure the interest of the dominant owner, such as when the shortest distance would
place the way on a dangerous decline."

D E C I S I O N SARMIENTO, J p:
The principal issue raised in this petition for review on certiorari of the decision 1 dated May
30, 1986 of the Court of Appeals, 2 which modified the decision 3 rendered by the Regional
Trial Court of Lapu-Lapu City in Cebu, is whether or not the private respondents had acquired
an easement of right of way, in the form of a passageway, on the petitioner's property.
It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122
and 5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on
which it had constructed a resort and hotel. The private respondents, on the other hand, are the
owners of adjoining properties more particularly known as Lots Nos. 5123-A and 5123-C of
the Opon Cadastre.
Before the petitioner began the construction of its beach hotel, the private respondents, in
going to and from their respective properties and the provincial road, passed through a
passageway which traversed the petitioner's property. In 1981, the petitioner closed the
aforementioned passageway when it began the construction of its hotel, but nonetheless
opened another route across its property through which the private respondents, as in the past,
were allowed to pass. (Later, or sometime in August, 1982, when it undertook the construction
of the second phase of its beach hotel, the petitioner fenced its property thus closing even the
alternative passageway and preventing the private respondents from traversing any part of it.)
As a direct consequence of these closures, an action for injunction with damages was filed
against the petitioner by the private respondents on September 2, 1982 before the then Court
of First Instance of Cebu. 4 In their complaint, the private respondents assailed the petitioner's
closure of the original passageway which they (private respondents) claimed to be an "ancient
road right of way" that had been existing before World War II and since then had been used by
them, the community, and the general public, either as pedestrians or by means of vehicles, in
going to and coming from Lapu-Lapu City and other parts of the country. The private
respondents averred that by closing the alleged road right of way in question, the petitioner
had deprived them access to their properties and caused them damages. prLL
In the same complaint, the private respondents likewise alleged that the petitioner had
constructed a dike on the beach fronting the latter's property without the necessary permit,
obstructing the passage of the residents and local fishermen, and trapping debris and flotsam
on the beach. They also claimed that the debris and flotsam that had accumulated prevented
them from using their properties for the purpose for which they had acquired them. The
complaint this prayed for the trial court to order the re-opening of the original passageway
across the petitioner's property as well as the destruction of the dike. 5
In its answer, 6 the petitioner denied the existence of an ancient road through its property and
counter-averred, among others, that it and its predecessors-in-interest had permitted the
temporary, intermittent, and gratuitous use of, or passage through, its property by the private
respondents and others by mere tolerance and purely as an act of neighborliness. It justified
the walling in of its property in view of the need to insure the safety and security of its hotel
and beach resort, and for the protection of the privacy and convenience of its hotel patrons and
guests. At any rate, the petitioner alleged, the private respondents were not entirely dependent
on the subject passageway as they (private respondents) had another existing and adequate
access to the public road through other properties. With respect to the dike it allegedly
constructed, the petitioner stated that what it built was a breakwater on the foreshore land
fronting its property and not a dike as claimed by the private respondents. Moreover, contrary
to the private respondents' accusation, the said construction had benefited the community
especially the fishermen who used the same as mooring for their boats during low tide. The
quantity of flotsam and debris which had formed on the private respondents' beach front on the
other hand were but the natural and unavoidable accumulations on beaches by the action of the
tides and movement of the waves of the sea. The petitioner's answer then assailed the private
respondents' complaint for its failure to implead as defendants the owners of the other
properties supposedly traversed by the alleged ancient road right way, indispensable parties
without whom no final adjudication of the controversy could be rendered. 7
After trial, the court a quo rendered a decision on March 15, 1984 finding that the private
respondents had acquired a vested right over the passageway in controversy based on its long
existence and its continued use and enjoyment not only by the private respondents, but also by
the community at large. The petitioner in so closing the said passageway, had accordingly
violated the private respondents' vested right. Thus, the trial court ordered the petitioner:
1. To open and make available the road in question to the plaintiffs and
the general public at all times free of any obstacle thereof, unless the
defendant shall provide another road equally accessible and convenient
as the road or passage closed by the defendant;
2. To pay the plaintiff Katipunan Lumber Company, Inc. the amount of
FIVE THOUSAND PESOS (P5,000.00) a month beginning January,
1983, and the plaintiff Perfecto Guangco the sum of TWO HUNDRED
PESOS (P200.00) a month beginning September, 1982, representing
their respective expenditures they had incurred in other beach resorts
after the road was closed, until the passageway claimed by them is
opened and made available to them, or if the defendant chooses to
provide another road, until such road is made available and
conveniently passable to the plaintiffs and the general public; and
3. To pay the sum of FIFTEEN THOUSAND PESOS (P15,000.00)
attorney's fees, and to pay the costs. 8
Both parties elevated the trial court's decision to the Court of Appeals, with the petitioner
questioning the alleged "vested right" of the private respondents over the subject passageway,
and the private respondents assailing the dismissal of their complaint insofar as their prayer for
the demolition of the petitioner's "dike" is concerned. LLphil
In its decision, the respondent Appellate Court held as without basis the trial court's finding
that the private respondents had acquired a vested right over the passageway in question by
virtue of prescription. 9 The appellate court pointed out that an easement of right of way is a
discontinuous one which, under Article 622 of the New Civil Code, may only be acquired by
virtue of a title and not by prescription. 10 That notwithstanding, the appellate court went on
to rule that ". . . in the interest of justice and in the exercise by this Court of its equity
jurisdiction, there is no reason for Us in not treating the easement here sought by appellees
Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is not dependent upon the
claims of the parties but a compulsory one that is legally demandable by the owner of the
dominant estate from the owner of the servient estate." 11 Thus the appellate court: (1) granted
the private respondents the right to an easement of way on the petitioner's property using the
passageway in question, unless the petitioner should provide another passageway equally
accessible and convenient as the one it closed; (2) remanded the case to the trial court for the
determination of the just and proper indemnity to be paid to the petitioner by the private
respondents for the said easement; and (3) set aside the trial court's award of actual damages
and attorney's fees. 12

On petitioner's motion for partial reconsideration, the respondent court issued on October 27,
1987 a resolution 13 denying the said motion. The Appellate Court however in denying the
petitioner's motion for reconsideration stated that:
. . . While it is true that there is another outlet for the plaintiff to the
main road, yet such outlet is a new road constructed in 1979, while the
road closed by defendant existed since over 30 years before. Legally,
the old road could be closed; but since the existing outlet is
inconvenient to the plaintiff, equitably the plaintiff should be given a
chance to pay for a more convenient outlet through the land of the
defendant at a point least prejudicial to the latter. In any event, the
plaintiff shall pay for all damages that defendant corporation may
sustain and the defendant regulates the manner of use of the right of
way to protect defendant's property and its customers. This is the gist of
Our decision. 14
Now before us, the petitioner contends that the decision of the respondent appellate court is
grossly erroneous and not in accord with the provisions of Articles 649 and 650 of the Civil
Code on easements and the prevailing jurisprudence on the matter.
The petition is meritorious.
It is already well-established that an easement of right of way, as is involved here, is
discontinuous 15 and as such can not be acquired by prescription. 16 Insofar therefore as the
appellate court adhered to the foregoing precepts, it stood correct. Unfortunately, after making
the correct pronouncement, the respondent Appellate Court did not order the reversal of the
trial court's decision and the dismissal of the complaint after holding that no easement had
been validly constituted over the petitioner's property. Instead, the Appellate Court went on to
commit a reversible error by considering the passageway in issue as a compulsory easement
which the private respondents, as owners of the "dominant" estate, may demand from the
petitioner the latter being the owner of the "servient" estate.
It is provided under Articles 649 and 650 of the New Civil Code that:
Art. 649. The owner, or any person who by virtue of a real right may
cultivate or use any immovable, which is surrounded by other
immovables pertaining to other persons and without adequate outlet to a
public highway, is entitled to demand a right of way through the
neighboring estates, after payment of the proper indemnity. llcd
Should this easement be established in such a manner that its use may
be continuous for all the needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary passage for the
cultivation of the estate surrounded by others and for the gathering of its
crops through the servient estate without a permanent way, the
indemnity shall consist in the payment of the damage caused by such
encumbrance.
This easement is not compulsory if the isolation of the immovable is
due to the proprietor's own acts.
Art. 650. The easement of right of way shall be established at the point
least prejudicial to the servient estate, and, insofar as consistent with
this rule, where the distance from the dominant estate to a public
highway may be the shortest.
Based on the foregoing, the owner of the dominant estate may validly claim a compulsory
right of way only after he has established the existence of four requisites, to wit: (1) the
(dominant) estate is surrounded by other immovables and is without adequate outlet to a
public highway; (2) after payment of the proper indemnity; (3) the isolation was not due to the
proprietor's own acts; and (4) the right of way claimed is at a point least prejudicial to the
servient estate. Additionally, the burden of proving the existence of the foregoing pre-
requisites lies on the owner of the dominant estate. 17
Here, there is absent any showing that the private respondents had established the existence of
the four requisites mandated by law. For one, they failed to prove that there is no adequate
outlet from their respective properties to a public highway. On the contrary, as alleged by the
petitioner in its answer to the complaint, and confirmed by the appellate court, "there is
another outlet for the plaintiffs (private respondents) to the main road." 18 Thus, the
respondent Court of Appeals likewise admitted that "legally the old road could be
closed." 19 Yet, it ordered the re-opening of the old passageway on the ground that "the
existing outlet (the other outlet) is inconvenient to the plaintiff." 20On this score, it is apparent
that the Court of Appeals lost sight of the fact that the convenience of the dominant estate has
never been the gauge for the grant of compulsory right of way. 21 To be sure, the true standard
for the grant of the legal right is "adequacy." Hence, when there is already an existing
adequate outlet from the dominant estate to a public highway, even if the said outlet, for one
reason or another, be inconvenient, the need to open up another servitude is entirely
unjustified. For to justify the imposition of an easement or right of way, "there must be a real,
not a fictitious or artificial necessity for it." 22
Further, the private respondents failed to indicate in their complaint or even to manifest during
the trial of the case that they were willing to indemnify fully the petitioner for the right of way
to be established over its property. Neither have the private respondents been able to show that
the isolation of their property was not due to their personal or their predecessors-in-interest's
own acts. Finally, the private respondents failed to allege, much more introduce any evidence,
that the passageway they seek to be re-opened is at a point least prejudicial to the petitioner.
Considering that the petitioner operates a hotel and beach resort in its property, it must
undeniably maintain a strict standard of security within its premises. Otherwise, the
convenience, privacy, and safety of its clients and patrons would be compromised. That
indubitably will doom the petitioner's business. It is therefore of great importance that the
claimed right of way over the petitioner's property be located at a point least prejudicial to its
business.
Hence, the private respondents' properties can not be said to be isolated, for which a
compulsory easement is demandable. Insofar therefore as the Appellate Court declared the
case to be proper as a controversy for a compulsory right of way, this Court is constrained to
hold that it was in error. LexLib
Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via of
the Romans. 23 They are demanded by necessity, that is, to enable owners of isolated estates
to make full use of their properties, which lack of access to public roads has denied
them. 24 Under Article 649 of the Civil Code, they are compulsory and hence, legally
demandable, subject to indemnity and the concurrence of the other conditions above-referred
to.
As also earlier indicated, there must be a real necessity therefor, and not mere convenience for
the dominant estate. Hence, if there is an existing outlet, otherwise adequate, to the highway,
the "dominant" estate can not demand a right of way, although the same may not be
convenient. Of course, the question of when a particular passage may be said to be "adequate"
depends on the circumstances of each case. Manresa, however, says: "In truth, not only the
estate which absolutely does not possess it should be considered in this condition, but also that
which does not have one sufficiently safe or serviceable; an estate bordering a public road
through an inaccessible slope or precipice, is in fact isolated for all the effects of the easement
requested by its owner. On the other hand, an estate which for any reason has necessarily lost
its access to a public road during certain periods of the year is in the same condition. . . . There
are some who propound the query as to whether the fact that a river flows between the estate
and the public road should be considered as having the effect of isolating the estate . . . If the
river may be crossed conveniently at all times without the least danger, it cannot be said that
the estate is isolated; in any other case, the answer is in the affirmative." 25
The isolation of the dominant estate is also dependent on the particular need of the dominant
owner, and the estate itself need not be totally landlocked. What is important to consider is
whether or not a right of way is necessary to fill a reasonable need therefor by the owner.
2 6 Thus, as Manresa had pointed out, if the passageway consists of an "inaccessible slope or
precipice," 27 it is as if there is no passageway, that is, one that can sufficiently fulfill the
dominant owner's necessities, although by the existence of that passageway the property can
not be truly said that the property is isolated. So also, while an existing right of way may have
proved adequate at the start, the dominant owner's need may have changed since then, for
which Article 651 of the Code allows adjustments as to width. 28
But while a right of way is legally demandable, the owner of the dominant estate is not at
liberty to impose one based on arbitrary choice. Under Article 650 of the Code, it shall be
established upon two criteria: (1) at the point least prejudical to the servient state; and (2)
where the distance to a public highway may be the shortest. According, however, to one
commentator, "least prejudice" prevails over "shortest distance." 29 Yet, each case must be
weighed according to its individual merits, and judged according to the sound discretion of the
court. "The court," says Tolentino, "is not bound to establish what is the shortest; a longer way
may be established to avoid injury to the servient tenement, such as when there are
constructions or walls which can be avoided by a roundabout way, or to secure the interest of
the dominant owner, such as when the shortest distance would place the way on a dangerous
decline." 30

It is based on these settled principles that we have resolved this case. prLL
WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987,
of the respondent Court of Appeals are SET ASIDE and the private respondents' complaint is
hereby DISMISSED. Costs against the private respondents.
SO ORDERED.
| [G.R. No. L-14652. June 30, 1960.]


JUAN GARGANTOS, petitioner, vs. TAN YANON and THE COURT OF
APPEALS, respondents.
SYLLABUS
EASEMENT OF LIGHT AND VIEW; TWO ADJOINING ESTATES
FORMERLY OWNED BY ONE PERSON; WHEN EXISTENCE OF DOORS AND
WINDOWS IS EQUIVALENT TO A TITLE. Where two adjoining estates were
formerly owned by just one person who introduced improvements on both such that the
wall of the house constructed on the first estate extends to the wall of the camarin on the
second estate; and at the time of the sale of the first estate, there existed on the
aforementioned wall of the house, doors and windows which serve as passages for light
and view, there being no provision in the deed of sale that the easement of light and view
will not be established, the same is covered by Article 624, New Civil code, which
provides that the existence of an apparent sign of easement between two estates
established by the proprietor of both, shall be considered, if one of them is alienated, as a
title so that easement will continue actively and passively, unless at the time the
ownership of the estate is divided, the contrary is stated in the deed of alienation of either
of them, or the sign is made to disappear before the instrument is executed. The existence
of doors and windows on the aforesaid wall of the house is equivalent to a title, for the
visible and permanent sign of an easement is the title that characterizes its existence. But
while the law declares that the easement is to "continue", the easement actually arises for
the first time only upon alienation of either estate, inasmuch as before that time there is
no easement to speak of, there being but one owner of both estates (Article 613, N.C.C.).

D E C I S I O N GUTIERREZ DAVID, J p:
Juan Gargantos appeals by certiorari from the decision of the Court of Appeals reversing the
judgment of the Court of First Instance of Romblon.
The record discloses that the late Francisco Sanz was the former owner of a
parcel of land containing 888 square meters, with the buildings and improvements
thereon, situated in the poblacion of Romblon. He subdivided the lot into three and then
sold each portion to different persons. One portion was purchased by Guillermo Tengtio
who subsequently sold it to Vicente Uy Veza. Another portion, with the house of strong
materials thereon, was sold in 1927 to Tan Yanon, respondent herein. This house has on
its northeastern side, doors and windows overlooking the third portion, which, together
with the camarin and small building thereon, after passing through several hands, was
finally acquired by Juan Gargantos, petitioner herein.
On April 23, 1955, Gargantos applied to the Municipal Mayor of Romblon for
a permit to demolish the roofing of the old camarin. The permit having been granted,
Gargantos tore down the roof of the camarin. On May 11, 1955, Gargantos asked the
Municipal Council of Romblon for another permit, this time in order to construct a
combined residential house and warehouse on his lot. Tan Yanon opposed approval of
this application.
Because both the provincial fiscal and district engineer of Romblon
recommended granting of the building permit to Gargantos, Tan Yanon filed against
Gargantos an action to restrain him from constructing a building that would prevent
plaintiff from receiving light and enjoying the view through the windows of his house,
unless such building is erected at a distance of not less than three meters from the
boundary line between the lots of plaintiff and defendant, and to enjoin the members of
the Municipal Council of Romblon from issuing the corresponding building permit to
defendants. The case as against the members of the Municipal Council was subsequently
dismissed with concurrence of plaintiff's council. After trial, the Court of First Instance of
Romblon rendered judgment dismissing the complaint and ordering plaintiff to pay
defendant the sum of P12,500.00 by way of compensatory, exemplary, moral and
moderate damages.
On appeal, the Court of Appeals set aside the decision of the Court of First
Instance of Romblon and enjoined defendant from constructing his building unless "he
erects the same at a distance of not less than three meters from the boundary line of his
property, in conformity with Article 673 of the New Civil Code."
So Juan Gargantos filed this petition for review of the appellate Court's
decision. The focal issue herein is whether the property of respondent Tan Yanon has an
easement of light and view against the property of petitioner Gargantos.
The kernel of petitioner's argument is that respondent never acquired any
easement either by title or by prescription. Assuredly, there is no deed establishing an
easement. Likewise, neither petitioner nor his predecessors-in-interest have ever executed
any deed whereby they recognized the existence of the easement, nor has there been final
judgment to that effect. Invoking our decision in Cortes vs. Yu-Tibo (2 Phil., 24),
petitioner maintains that respondent has not acquired an easement by prescription
because he has never formally forbidden petitioner from performing any act which would
be lawful without the easement, hence the prescriptive period never started.
It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and
the doctrine in the Yu-Tibo case are not applicable herein because the two estates, that
now owned by petitioner, and that owned by respondent, were formerly owned by just
one person, Francisco Sanz. It was Sanz who introduced improvements on both
properties. On that portion presently belonging to respondent, he constructed a house in
such a way that the northeastern side thereof extends to the wall of the camarinon the
portion now belonging to petitioner. On said northeastern side of the house, there are
windows and doors which serve as passages for light and view. These windows and doors
were in existence when respondent purchased the house and lot from Sanz. The deed of
sale did not provide that the easement of light and view would not be established. This
then is precisely the case covered by Article 541, O.C.C. (now Article 624, N.C.C.)
which provides that the existence of an apparent sign of easement between two estates,
established by the proprietor of both, shall be considered, if one of them is alienated, as a
title so that the easement will continue actively and passively, unless at the time the
ownership of the two estates is divided, the contrary is stated in the deed of alienation of
either of them, or the sign is made to disappear before the instrument is executed. The
existence of the doors and windows on the northeastern side of the aforementioned house,
is equivalent to a title, for the visible and permanent sign of an easement is the title that
characterizes its existence (Amor vs. Florentino, 74 Phil., 403). It should be noted,
however, that while the law declares that the easement is to "continue" the easement
actually arises for the first time only upon alienation of either estate, inasmuch as before
that time there is no easement to speak of, there being but one owner of both estates
(Article 530, O.C.C., now Article 613, N.C.C.).
We find that respondent Tan Yanon's property has an easement of light and
view against petitioner's property. By reason of this easement, petitioner cannot construct
on his land any building unless he erects it at a distance 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.
||| (Gargantos v. Tan Yanon, G.R. No. L-14652, June 30, 1960)
G.R. No. L-66520 August 30, 1988 EDUARDO C. TAEDO, petitioner,
vs.
HON. JUANITO A. BERNAD, Presiding Judge of the Regional Trial Court, 7th Judicial
Region, Branch XXI, Cebu City; Spouses ROMEO SIM and PACITA S. SIM; and
Spouses ANTONIO CARDENAS and MAE LINDA CARDENAS, respondents.
PADILLA, J .:
This is a petition for review on certiorari of the Order issued by the respondent judge, Hon.
Juanita A. Bernad on 5 December 1983, which dismissed the complaint for legal redemption
filed by the petitioner in Civil Case No. CEB-994 of the Regional Trial Court of Cebu, and the
Order of the same respondent judge, dated 20 January 1984, which denied petitioner's motion
for reconsideration.
The facts, in brief, are as follows:
The private respondent Antonio Cardenas was the owner of two (2) contiguous parcels of land
situated in Cebu City which he had inherited from Lourdes Cardenas and more particularly
known as Lot 7501-A, with an area of 140 square meters and Lot 7501-B, with an area of 612
square meters. On Lot 7501-A is constructed an apartment building, while the improvements
on Lot 7501-B consist of one four-door apartment of concrete and strong materials; one two-
storey house of strong materials; a bodega of strong materials; and a septic tank for the
common use of the occupants of Lots 7501-A and 7501-B. A small portion of the apartment
building on Lot 7501-A also stands on Lot 7501-B.
On 5 February 1982, said Antonio Cardenas sold Lot 7501-A to herein petitioner Eduardo C.
Taedo.
1

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

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

Antonio Cardenas, however, sold Lot 7501-B to the herein respondent spouses Romeo and
Pacita Sim.
4
Upon learning of the sale, Eduardo Taedo offered to redeem the property from
Romeo Sim. But the latter refused. Instead, Romeo Sim blocked the sewage pipe connecting
the building of Eduardo Taedo built on Lot 7501-A, to the septic tank in Lot 7501-B. He also
asked Taedo to remove that portion of his building enroaching on Lot 7501-B. As a result,
Eduardo Taedo, invoking the provisions of Art. 1622 of the Civil Code, filed an action for
legal redemption and damages, with a prayer for the issuance of a writ of preliminary
injunction, before the Regional Trial Court of Cebu, docketed therein as Civil Case No. CEB-
994, against the spouses Romeo and Pacita Sim, Antonio Cardenas and his wife Mae Linda
Cardenas, the Register of Deeds of Cebu City, and Banco Cebuano, Cebu City Development
Bank.
5

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

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

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

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

Acting upon these motions and other incidental motions, the respondent judge issued the
questioned order of 5 December 1983 dismissing the complaint and cross-claim.
10

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

Hence, the present recourse by petitioner Tanedo.
The Court finds merit in the petition. The dismissal of the complaint on the ground of lack of
cause of action, is precipitate. The settled rule where dismissal of an action is sought on the
ground that the complaint does not state a cause of action is, that the insufficiency of the cause
of action must appear on the face of the complaint. And the test of the sufficiency of the
ultimate facts alleged in the complaint to constitute a cause of action, is whether or not,
admitting the facts alleged, the court can render a valid judgment upon the same in accordance
with the prayer of the complaint. For this purpose, the movant is deemed to admit
hypothetically the truth of the facts thus averred.
12

In the instant case, it cannot be denied that petitioner Tanedo cannot redeem the entire Lot
7501-B from the spouses Romeo and Pacita Sim pursuant to the provisions of Art. 1622
Romeo and Pacita Sim pursuant to the provisions of Art. 1622 of the Civil Code, since the lot
sought to be redeemed, has an area of 612 square meters which is much bigger, area-wise,
than the lot owned by petitioner Taedo. However, the petitioner seeks to purchase only that
small portion of Lot 7501-B occupied by his apartment building, because the spouses Romeo
and Pacita Sim had told him to remove that portion of his building which enroaches upon Lot
7501-B. Whether or not this is possible should have been determined at the pre-trial stage or
trial on the merits.
Besides, the action of petitioner Taedo is also one for recovery of damages by reason of
breach of promise by the respondent Antonio Cardenas to sell Lot 7501-B. Paragraphs 3 and 4
of the amended complaint read, as follows:
3. That by written agreement, plaintiff and defendant spouses Antonio
Cardenas and Mae Linda Cardenas agreed that in the event they decide to
sell the adjacent Lot No. 7501-B of the subdivision plan (LRC) Psd.
23638, a portion of Lot No. 7501 of the cadastral survey of Cebu, LRC
(GLRC) Cad. Record No. 9465, situated in the City of Cebu, containing an
area of SIX HUNDRED TWELVE (612) Square meters more or less
which lot is adjacent to Lot No. 7501-A of the plaintiff and where part of
the plaintiffs apartment is standing on, the same should be sold to the
plaintiff, but far from compliance of the written agreement, defendant
spouses Antonio Cardenas and Mae Linda Cardenassureptiously [sic] sold
the aforestated Lot No. -7501-B- to the defendant spouses, Romeo Sim
and Pacita Sim on July 23, 1982 as per Deed of Sale notarized by Notary
Public, Jorge S. Omega and entered in his Notarial Register as Doc. No.
462; Page No. -94- Book No. 11, Series of 1982;
4. That due to the sale by the defendant spouses Antonio Cardenas and
Mae Linda Cardenas of the property in question to spouses Romeo Sim
and Pacita Lim, plaintiff suffered moral damages in the form of mental
anguish, sleepless nights, mental torture, for which he is entitled to a
compensation in the amount to be established during the trial of the case
and has incurred litigation expenses subject for reimbursentent and
attorneys fee in the sum of P10,000.00 which should be chargeable to both
defendant spouses;
13

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

That there was a written agreement, as alleged in the complaint, between the plaintiff Eduardo
Taedo and the defendant Antonio Cardenas is admitted by the latter. In his answer, he alleged
the following:
ALLEGATIONS as to written agreement is ADMITTED, but, specifically
denies that herein defendants SUREPTIOUSLY [sic] SOLD the lot in
question to the other defendant Spouses Sim the truth is, that the herein
defendants [sic] was required to execute the Deed of Sale described in this
paragraph 3 as security for the personal loans and other forms of
indebtedness incurred from the Spouses Sims but never as a conveyance to
transfer ownership;
15

Considering this admission of defendant Cardenas, and that his promise to sell Lot 7501-B to
Eduardo Taedo appears to be for a valuable consideration, a trial is necessary to determine, at
the very least, the amount of damages suffered by the plaintiff Eduardo Tafiedo by reason of
such breach of promise to sell, if indeed there is such a breach.
Moreover, the finding of the trial court that petitioner Taedo's right to continue to use the
septic tank, erected on Lot 7501-B, ceased upon the subdivision of the land and its subsequent
sale to different owners who do not have the same interest,
16
also appears to be contrary to
law. Article 631 of the Civil Code enumerates the grounds for the extinguishment of an
easement. Said article provides:
Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the dominant and
servient estates;
(2) By non-user for ten years; with respect to discontinuous easements,
this period shall be computed from the day on which they ceased to be
used; and, with respect to continuous easements, from the day on which an
act contrary to the same took place;
(3) When either or both of the estates fall into such condition that the
easement cannot be used; but it shall revive if the subsequent condition of
the estates or either of them should again permit its use, unless when the
use becomes possible, sufficient time for prescription has elapsed, in
accordance with the provisions of the preceding number;
(4) By the expiration of the term or the fulfillment of the conditions, if the
easement is temporary or conditional;
(5) By the renunciation of the owner of the dominant estate;
(6) By the redemption agreed upon between the owners of the dominant
and servient estates.
As can be seen from the above provisions, the alienation of the dominant and servient estates
to different persons is not one of the grounds for the extinguishment of an easement. On the
contrary, use of the easement is continued by operation of law. Article 624 of the Civil Code
provides:
Art. 624. The existence of an apparent sign of easement between two
estates, established or maintained by the owner of both, shall be
considered, should either of them be alienated, as a title in order that the
easement may continue actively and passively, unless, at the time the
ownership of the two estates is divided, the contrary should be provided in
the title of conveyance of either of them, or the sign aforesaid should be
removed before the execution of the deed. This provision shall also apply
in case of the division of a thing owned in common by two or more
persons.
In the instant case, no statement abolishing or extinguishing the easement of drainage was
mentioned in the deed of sale of Lot 7501-A to Eduardo Taedo. Nor did Antonio Cardenas
stop the use of the drain pipe and septic tank by the occupants of Lot 7501-A before he sold
said lot to Eduardo Tafiedo. Hence, the use of the septic tank is continued by operation of law.
Accordingly, the spouses Romeo and Pacita Sim the new owners of the servient estate (Lot
7501- B), cannot impair, in any manner whatsoever, the use of the servitude.
17

WHEREFORE, the Orders complained of are hereby REVERSED and SET ASIDE. The
respondent judge or another one designated in his place is directed to proceed with the trial of
this case on the merits. With costs against private respondents.
SO ORDERED.
REMIGIO O. RAMOS, SR., petitioner, vs. GATCHALIAN REALTY, INC.,
EDUARDO ASPREC, ENELDA ASPREC, ERNESTO ASPREC, and COURT
OF APPEALS,respondents.
D E C I S I O N GUTIERREZ, JR., J p:
In this petition for review on certiorari, the petitioner assails the decision of the Court of
Appeals dated August 29, 1986 which affirmed the November 14, 1984 order of the Regional
Trial Court, Branch CXI at Pasay City dismissing the petitioner's civil action for a right of way
with prayer for preliminary injunction. LexLib
Petitioner Ramos is the owner of a house and lot containing an area of 901 square meters
covered by Transfer Certificate of Title No. 14927 situated at Barrio San Dionisio, Paraaque,
Metro Manila. The lot was acquired by the petitioner from Sobrina Rodriguez Lombos
Subdivision. In the subdivision survey plan of Lot 4133-G, (LRC) PSD-172544, the lot is
more particularly described as Lot 4133-G-11 (Exhibits 1 and 1-A"). Two road lots abut
petitioner's property namely lot 4133-G-12 with an area of 2,160 square meters clearly
appearing as a proposed road in the Lombos subdivision plan and Lot 4135 of the Paraaque
Cadastre now known as Palanyag Road but more commonly referred to as Gatchalian
Avenue. LLpr
Respondents Asprec own Lot 4135. Gatchalian Avenue is alongside Lot 4135. Respondent
Gatchalian Realty was granted the road right of way and drainage along Lot 4135 to service
the Gatchalian and Asprec subdivisions, by the respondent Asprecs.
The records of this case disclose that on April 30, 1981, a complaint for an easement of a right
of way with preliminary mandatory injunction was filed by Ramos against the private
respondents. Among the allegations in the complaint are:
". . . that he (referring to the petitioner) constructed his house at 27
Gatchalian Avenue (also known as Palanyag Road), Paraaque, and has
since resided therein with his family from 1977 up to the present; that
during construction of the house, Gatchalian Realty, Inc. built a 7-8 feet
high concrete wall right infront of appellant's premises, blocking his
entrance/exit to Gatchalian Road, the nearest, most convenient and
adequate entrance/exit to the public road or highway, formerly Sucat
Road but now known as Dr. A. Santos Avenue, Paraaque; that this
house and lot is only about 100 meters from Sucat Road passing thru
Gatchalian Avenue; that prior to this, appellant and his counsel
addressed separate request/demand letters (Exh. A and Annex B) to
defendant company to allow him to exercise a right of way on the
subject premises; that in September 1977, a meeting/conference was
held between appellant and his counsel on one hand and Mr. Roberto
Gatchalian and counsel on the other, during which defendant
Corporation manifested its conformity to grant appellant the requested
right of way upon payment of proper indemnity, with the request that
appellant inform defendants Asprec of their aforesaid agreement; that
consequently, appellant wrote Mr. Cleto Asprec on September 16, 1977
(Exh. D); that with the construction of the 7-8 feet concrete wall
appellant and his family have been constrained to pass through the back
portion of their lot bounded by other lots belonging to different owners,
which is grassy and cogonal as temporary ingress/egress with great
inconvenience and hardship, and this becomes all the more pronounced
during the rainy season due to flood and 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
concrete wall is dangerously leaning towards appellant's premises
posing great danger or hazard." (Court of Appeals Decision, p. 3, Rollo,
p. 39).
On May 20, 1981, the respondent corporation filed a motion to dismiss on grounds of lack of
cause of action and bar by prior judgment alleging that the complaint was merely a
reproduction of that filed on October 26, 1972 in Civil Case No. 5930-P which was dismissed
on October 30, 1980 for failure to prosecute within a reasonable length of time. Respondents
Asprec later joined the respondent company in its motion to dismiss and adopted the grounds
and arguments stated therein.
On November 20, 1981, after the petitioner had filed his opposition to the above motions, the
lower court issued its order denying the motion to dismiss on the ground that the order
dismissing the earlier case was not an adjudication on the merits.
On November 26, 1981, the petitioner filed an urgent ex-parte motion for the issuance of a
preliminary mandatory injunction as well as a preliminary prohibitory injunction. On the same
day, the lower court set the motion for hearing on December 1, 1981, later reset to December
10, 1981, and ordered that:
"In the meantime, pending determination of the application or the merits
and in order that the reliefs sought therein may not be rendered moot
and academic, the defendants and all persons acting upon their orders
are hereby temporarily enjoined from building, constructing and/or
erecting a wall, fence or any enclosure adjoining or abutting plaintiff's
premises and/or from restraining, preventing or prohibiting the plaintiff,
his family or persons residing in his premises as well as any person/s
who may have any dealing or business with them from using, passing
and/or traversing the said Gatchalian Avenue in going to or returning
from the plaintiff's premises and in going to or returning from Sucat
Road via Gatchalian Avenue, until further orders from this Court.
(Order dated November 26, 1981, Records, p. 66).
On December 1, 1981, Gatchalian Realty filed its answer and averred, among others, that:
xxx xxx xxx
"Defendant Corporation has never entered into a verbal agreement with
plaintiff to grant the latter a road right of way;
xxx xxx xxx
"The so-called Gatchalian Avenue or Palanyag Road is not a public
road but a private street established and constructed by the defendant
Corporation intended for the sole and exclusive use of its residents and
lot buyers of its subdivisions, as well as of the subdivisions owned and
operated by the various naked owners of the different portions
constituting the entire length and breadth of said street;
"If plaintiff's property referred to in the complaint is Lot No. 4133-G-11
(LRC) Psd-229001 (sic), then a grant of a right of way to plaintiff is not
a legal necessity, because such lot has an existing road right of way,
more particularly Lot 4133-G-12, towards Dr. Arcadio Santos Avenue
(Sukat Road);
xxx xxx xxx
"The opening of Gatchalian Avenue to the property of plaintiff will
unduly cause great prejudice to defendant Corporation as it can no
longer effectively regulate the use of the said private road; . . .
"Assuming, though not admitting, that plaintiff may be granted a right
of way, still the reasonable compensation for such grant would be some
P800,000.00, as such portion of Gatchalian Avenue consists of some
2,000 square meters of prime and valuable property which could readily
command a market value of P400.00 per square meter; moreover,
plaintiff still has to shoulder his proportionate share of the expenses and
upkeep of such street and the real estate taxes imposed thereon."
(Answer of Gatchalian Realty, Inc., Records, pp. 81-82).
On December 2, 1981, respondent Asprec filed their answer which basically contained the
same averments as that of the realty company.
At the hearing of the petitioner's application for issuance of a writ of preliminary injunction to
compel the private respondents to remove the wall constructed right in front of the petitioner's
premises barring him access to Gatchalian Avenue, both parties presented oral and
documentary evidence to support their respective positions. After the hearing, the lower court
issued the following order:
"Plaintiff is given fifteen (15) days to file a memorandum and the
defendant is given another fifteen days from receipt thereof to file a
reply, after which the case shall be deemed submitted for resolution. So
ordered." (TSN, December 10, 1981, p. 57)
After compliance by both parties with the above order, the lower court, on July 9, 1982,
rendered a decision the dispositive part of which reads:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff
and against the defendants ordering the latter to grant the former a right
of way through Palanyag Road to and from Don Arcadio Santos
Avenue and to and from this residence, upon payment by the plaintiff to
the defendants Asprecs the sum of P5,000 as indemnity therefor and
under the following terms and conditions to wit: (1) the easement
created shall be only in favor of the plaintiff, members of his family and
person or persons dealing with them; and (2) the opening to be created
through the concrete wall separating plaintiff's residence and Palanyag
Road shall only be three (3) meters wide and shall be provided by an
iron gate by the plaintiff all at the expense of the plaintiff. Without
pronouncement as to costs and damages." (Rollo, p. 30)
Thereafter, the respondent company filed a motion to set aside and/or reconsider the lower
court's decision for being premature since only the application for the writ of injunction was
heard and submitted for resolution and not the entire case. Respondents Asprec, likewise, filed
a motion for reconsideration mainly on the ground that the lower court's grant of a right of
way through Gatchalian Avenue in petitioner's favor would be in derogation of the "Contract
of Easement of Road Right-of-Way and of Drainage" executed between them and Gatchalian
Realty. cdphil
In his opposition to both motions, the petitioner argued that on the basis of the transcript of
stenographic notes taken on December 10, 1981, it was clear that both parties submitted the
entire case for resolution inasmuch as the pieces of evidence for the injunction and for the
main case were the same and there was nothing left to be presented. Thus, in effect, the
petitioner contended that the lower court's decision dated July 9, 1982 was an adjudication on
the merits.

On July 8, 1983, the lower court under a new judge by virtue of the reorganization of the
judiciary, issued an order setting aside and vacating its previous decision dated July 9, 1982 on
the ground that the same was "rendered prematurely as the defendants had not presented their
evidence on the main evidence."
After the petitioner had rested his case, the respondent company filed a motion to dismiss
based on the insufficiency of the evidence adduced by the petitioner. An opposition to said
motion, was, thereafter, filed by the petitioner.
On November 14, 1984, the lower court, acting on the respondent company's motion to
dismiss, issued an order with the following tenor:
"WHEREFORE, finding the motion to dismiss of defendant corporation
Gatchalian Realty, Inc. to be impressed with merit, the same is hereby
granted. For insufficiency of evidence, plaintiff's complaint is hereby
dismissed, without pronouncement as to costs." (Rollo, p. 34)
The Court of Appeals on August 29, 1986, found that the petitioner failed to establish the
existence of the preconditions in order that he could legally be entitled to an easement of a
right of way. It affirmed the lower court's order dated November 14, 1984 in all respects, with
costs against the petitioner.
Hence, this petition which presents the following assignment of errors:
I
PUBLIC RESPONDENT ERRED IN AFFIRMING IN TOTO THE ORDER OF
DISMISSAL OF THE TRIAL COURT IN ALL RESPECTS WITH COSTS AGAINST
THE PETITIONER;
II
PUBLIC RESPONDENT ERRED IN ITS DECISION TO THE EFFECT THAT
PETITIONER HAS NOT SUFFICIENTLY MET THE REQUIREMENTS OF THE
LAW AND IN FAILING TO PROVE HIS RIGHT OF WAY THROUGH
GATCHALIAN AVENUE OR PALANYAG ROAD AGAINST THE RESPONDENTS
HEREIN;
III
PUBLIC RESPONDENT ERRED IN FAILING TO SET ASIDE THE ORDER OF THE
TRIAL COURT, AND NOT ADOPTING THE DECISION OF THE TRIAL COURT
DATED JULY 9, 1982 GRANTING TO PETITIONER A RIGHT OF WAY IN THE
SUBJECT PREMISES. (Rollo, pp. 14-15).
These assigned errors center on the issue of whether or not the petitioner has successfully
shown that all the requisites necessary for the grant of an easement of a right of way in his
favor are present.
An easement or servitude is an encumbrance imposed upon an immovable for the benefit of
another immovable belonging to a different owner as defined in Article 613 of the Civil Code.
It is established either by law, in which case it is called legal, or by the will of the parties, in
which event it is a voluntary easement. (See Article 619, Civil Code of the Philippines; City of
Manila v. Entote, 57 SCRA 497, 503).
Since there is no agreement between the contending parties in this case granting a right of way
by one in favor of the other, the establishment of a voluntary easement between the petitioner
and the respondent company and/or the other private respondents is ruled out. What is left to
examine is whether or not the petitioner is entitled to a legal or compulsory easement of a right
of way.
In the case of Bacolod-Murcia Milling Company, Inc. v. Capitol Subdivision, Inc., et al. (17
SCRA 731, 735-6), we held that:
". . . the Central had to rely strictly on its being entitled to a compulsory
servitude of right of way, under the Civil Code, and it could not claim
any such servitude without first establishing the preconditions for its
grant fixed by Articles 649 and 650 of the Civil Code of the Philippines:
(1) That it is surrounded by other immovables and
has no adequate outlet to a public highway (Art. 649, par. 1);
(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 insofar as
consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest.'
(Art. 650).
"By express provision of law, therefore, a compulsory right of way
cannot be obtained unless the four requisites enumerated are first shown
to exist, and the burden of proof to show their existence was on the
Central." (See also Angela Estate, Inc. v. Court of First Instance of
Negros Occidental, 24 SCRA 500, 510)
On the first requisite, the petitioner contends that since the respondent company constructed
the concrete wall blocking his ingress and egress via the Gatchalian Avenue, the "nearest,
most convenient and adequate road" to and from a public highway, he has been constrained to
use as his "temporary" way the adjoining lots belonging to different persons. Said way is
allegedly "bumpy and impassable especially during rainy seasons because of flood waters,
mud and tall 'talahib' grasses thereon." Moreover, according to the petitioner, the road right of
way which the private respondents referred to as the petitioner's alternative way to Sucat Road
is not an existing road but has remained a proposed road as indicated in the subdivision plan of
the Sobrina Rodriguez Lombos Subdivision.
The petitioner's position is not impressed with merit. We find no reason to disturb the
appellate court's finding of fact that the petitioner failed to prove the non-existence of an
adequate outlet to the Sucat Road except through the Gatchalian Avenue. As borne out by the
records of the case, there is a road right of way provided by the Sobrina Rodriguez Lombos
Subdivision indicated as Lot 4133-G-12 in its subdivision plan for the buyers of its lots. The
fact that said lot is still undeveloped and causes inconvenience to the petitioner when he uses it
to reach the public highway does not bring him within the ambit of the legal requisite. We
agree with the appellate court's observation that the petitioner should have, first and foremost,
demanded from the Sobrina Rodriguez Lombos Subdivision the improvement and
maintenance of Lot 4133-G-12 as his road right of way because it was from said subdivision
that he acquired his lot and not either from the Gatchalian Realty or the respondents Asprec.
To allow the petitioner access to Sucat Road through Gatchalian Avenue inspite of a road right
of way provided by the petitioner's subdivision for its buyers simply because Gatchalian
Avenue allows petitioner a much greater case in going to and coming from the main
thoroughfare is to completely ignore what jurisprudence has consistently maintained through
the years regarding an easement of a right of way, that "mere convenience for the dominant
estate is not enough to serve as its basis. To justify the imposition of this servitude, there must
be a real, not a fictitious or artificial, necessity for it." (See Tolentino, Civil Code of the
Philippines, Vol. II, 2nd ed., 1972, p. 371) LLpr
Considering that the petitioner has failed to prove the existence of the first requisite as
aforestated, we find it unnecessary to discuss the rest of the preconditions for a legal or
compulsory right of way.
Once again, we apply the rule that findings of facts of the Court of Appeals are binding on the
Supreme Court and will not be overturned when supported by the evidence on record save in
the known exceptions such as gross misappreciation of the evidence or misapprehension of
facts. (See Community Savings and Loan Association, Inc. v. Court of Appeals, et al., G.R.
No. 75786, promulgated on August 31, 1987; Regalario v. Northwest Finance Corporation,
117 SCRA 45; Agton v. Court of Appeals, 113 SCRA 322). cdrep
WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED for lack of merit.
The questioned decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
||| (Ramos, Sr. v. Gatchalian Realty, Inc., G.R. No. 75905, October 12, 1987)

REMIGIO O. RAMOS, SR., petitioner, vs. GATCHALIAN REALTY, INC.,
EDUARDO ASPREC, ENELDA ASPREC, ERNESTO ASPREC, and COURT
OF APPEALS,respondents.
D E C I S I O N GUTIERREZ, JR., J p:
In this petition for review on certiorari, the petitioner assails the decision of the Court of
Appeals dated August 29, 1986 which affirmed the November 14, 1984 order of the Regional
Trial Court, Branch CXI at Pasay City dismissing the petitioner's civil action for a right of way
with prayer for preliminary injunction. LexLib
Petitioner Ramos is the owner of a house and lot containing an area of 901 square meters
covered by Transfer Certificate of Title No. 14927 situated at Barrio San Dionisio, Paraaque,
Metro Manila. The lot was acquired by the petitioner from Sobrina Rodriguez Lombos
Subdivision. In the subdivision survey plan of Lot 4133-G, (LRC) PSD-172544, the lot is
more particularly described as Lot 4133-G-11 (Exhibits 1 and 1-A"). Two road lots abut
petitioner's property namely lot 4133-G-12 with an area of 2,160 square meters clearly
appearing as a proposed road in the Lombos subdivision plan and Lot 4135 of the Paraaque
Cadastre now known as Palanyag Road but more commonly referred to
asGatchalian Avenue. LLpr
Respondents Asprec own Lot 4135. Gatchalian Avenue is alongside Lot 4135.
Respondent Gatchalian Realty was granted the road right of way and drainage along Lot 4135
to service the Gatchalian and Asprec subdivisions, by the respondent Asprecs.
The records of this case disclose that on April 30, 1981, a complaint for an easement of a right
of way with preliminary mandatory injunction was filed by Ramos against the private
respondents. Among the allegations in the complaint are:
". . . that he (referring to the petitioner) constructed his house at
27 Gatchalian Avenue (also known as Palanyag Road), Paraaque, and
has since resided therein with his family from 1977 up to the present;
that during construction of the house, Gatchalian Realty, Inc. built a 7-8
feet high concrete wall right infront of appellant's premises, blocking
his entrance/exit to Gatchalian Road, the nearest, most convenient and
adequate entrance/exit to the public road or highway, formerly Sucat
Road but now known as Dr. A. Santos Avenue, Paraaque; that this
house and lot is only about 100 meters from Sucat Road passing
thru Gatchalian Avenue; that prior to this, appellant and his counsel
addressed separate request/demand letters (Exh. A and Annex B) to
defendant company to allow him to exercise a right of way on the
subject premises; that in September 1977, a meeting/conference was
held between appellant and his counsel on one hand and Mr.
Roberto Gatchalianand counsel on the other, during which defendant
Corporation manifested its conformity to grant appellant the requested
right of way upon payment of proper indemnity, with the request that
appellant inform defendants Asprec of their aforesaid agreement; that
consequently, appellant wrote Mr. Cleto Asprec on September 16, 1977
(Exh. D); that with the construction of the 7-8 feet concrete wall
appellant and his family have been constrained to pass through the back
portion of their lot bounded by other lots belonging to different owners,
which is grassy and cogonal as temporary ingress/egress with great
inconvenience and hardship, and this becomes all the more pronounced
during the rainy season due to flood and 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
concrete wall is dangerously leaning towards appellant's premises
posing great danger or hazard." (Court of Appeals Decision, p. 3, Rollo,
p. 39).
On May 20, 1981, the respondent corporation filed a motion to dismiss on grounds of lack of
cause of action and bar by prior judgment alleging that the complaint was merely a
reproduction of that filed on October 26, 1972 in Civil Case No. 5930-P which was dismissed
on October 30, 1980 for failure to prosecute within a reasonable length of time. Respondents
Asprec later joined the respondent company in its motion to dismiss and adopted the grounds
and arguments stated therein.
On November 20, 1981, after the petitioner had filed his opposition to the above motions, the
lower court issued its order denying the motion to dismiss on the ground that the order
dismissing the earlier case was not an adjudication on the merits.
On November 26, 1981, the petitioner filed an urgent ex-parte motion for the issuance of a
preliminary mandatory injunction as well as a preliminary prohibitory injunction. On the same
day, the lower court set the motion for hearing on December 1, 1981, later reset to December
10, 1981, and ordered that:
"In the meantime, pending determination of the application or the merits
and in order that the reliefs sought therein may not be rendered moot
and academic, the defendants and all persons acting upon their orders
are hereby temporarily enjoined from building, constructing and/or
erecting a wall, fence or any enclosure adjoining or abutting plaintiff's
premises and/or from restraining, preventing or prohibiting the plaintiff,
his family or persons residing in his premises as well as any person/s
who may have any dealing or business with them from using, passing
and/or traversing the said Gatchalian Avenue in going to or returning
from the plaintiff's premises and in going to or returning from Sucat
Road via Gatchalian Avenue, until further orders from this Court.
(Order dated November 26, 1981, Records, p. 66).
On December 1, 1981, Gatchalian Realty filed its answer and averred, among others, that:
xxx xxx xxx
"Defendant Corporation has never entered into a verbal agreement with
plaintiff to grant the latter a road right of way;
xxx xxx xxx
"The so-called Gatchalian Avenue or Palanyag Road is not a public
road but a private street established and constructed by the defendant
Corporation intended for the sole and exclusive use of its residents and
lot buyers of its subdivisions, as well as of the subdivisions owned and
operated by the various naked owners of the different portions
constituting the entire length and breadth of said street;
"If plaintiff's property referred to in the complaint is Lot No. 4133-G-11
(LRC) Psd-229001 (sic), then a grant of a right of way to plaintiff is not
a legal necessity, because such lot has an existing road right of way,
more particularly Lot 4133-G-12, towards Dr. Arcadio Santos Avenue
(Sukat Road);
xxx xxx xxx
"The opening of Gatchalian Avenue to the property of plaintiff will
unduly cause great prejudice to defendant Corporation as it can no
longer effectively regulate the use of the said private road; . . .
"Assuming, though not admitting, that plaintiff may be granted a right
of way, still the reasonable compensation for such grant would be some
P800,000.00, as such portion of Gatchalian Avenue consists of some
2,000 square meters of prime and valuable property which could readily
command a market value of P400.00 per square meter; moreover,
plaintiff still has to shoulder his proportionate share of the expenses and
upkeep of such street and the real estate taxes imposed thereon."
(Answer of Gatchalian Realty, Inc., Records, pp. 81-82).
On December 2, 1981, respondent Asprec filed their answer which basically contained the
same averments as that of the realty company.
At the hearing of the petitioner's application for issuance of a writ of preliminary injunction to
compel the private respondents to remove the wall constructed right in front of the petitioner's
premises barring him access to Gatchalian Avenue, both parties presented oral and
documentary evidence to support their respective positions. After the hearing, the lower court
issued the following order:
"Plaintiff is given fifteen (15) days to file a memorandum and the
defendant is given another fifteen days from receipt thereof to file a
reply, after which the case shall be deemed submitted for resolution. So
ordered." (TSN, December 10, 1981, p. 57)
After compliance by both parties with the above order, the lower court, on July 9, 1982,
rendered a decision the dispositive part of which reads:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff
and against the defendants ordering the latter to grant the former a right
of way through Palanyag Road to and from Don Arcadio Santos
Avenue and to and from this residence, upon payment by the plaintiff to
the defendants Asprecs the sum of P5,000 as indemnity therefor and
under the following terms and conditions to wit: (1) the easement
created shall be only in favor of the plaintiff, members of his family and
person or persons dealing with them; and (2) the opening to be created
through the concrete wall separating plaintiff's residence and Palanyag
Road shall only be three (3) meters wide and shall be provided by an
iron gate by the plaintiff all at the expense of the plaintiff. Without
pronouncement as to costs and damages." (Rollo, p. 30)
Thereafter, the respondent company filed a motion to set aside and/or reconsider the lower
court's decision for being premature since only the application for the writ of injunction was
heard and submitted for resolution and not the entire case. Respondents Asprec, likewise, filed
a motion for reconsideration mainly on the ground that the lower court's grant of a right of
way through Gatchalian Avenue in petitioner's favor would be in derogation of the "Contract
of Easement of Road Right-of-Way and of Drainage" executed between them
and Gatchalian Realty. cdphil
In his opposition to both motions, the petitioner argued that on the basis of the transcript of
stenographic notes taken on December 10, 1981, it was clear that both parties submitted the
entire case for resolution inasmuch as the pieces of evidence for the injunction and for the
main case were the same and there was nothing left to be presented. Thus, in effect, the
petitioner contended that the lower court's decision dated July 9, 1982 was an adjudication on
the merits.

On July 8, 1983, the lower court under a new judge by virtue of the reorganization of the
judiciary, issued an order setting aside and vacating its previous decision dated July 9, 1982 on
the ground that the same was "rendered prematurely as the defendants had not presented their
evidence on the main evidence."
After the petitioner had rested his case, the respondent company filed a motion to dismiss
based on the insufficiency of the evidence adduced by the petitioner. An opposition to said
motion, was, thereafter, filed by the petitioner.
On November 14, 1984, the lower court, acting on the respondent company's motion to
dismiss, issued an order with the following tenor:
"WHEREFORE, finding the motion to dismiss of defendant
corporation Gatchalian Realty, Inc. to be impressed with merit, the
same is hereby granted. For insufficiency of evidence, plaintiff's
complaint is hereby dismissed, without pronouncement as to costs."
(Rollo, p. 34)
The Court of Appeals on August 29, 1986, found that the petitioner failed to establish the
existence of the preconditions in order that he could legally be entitled to an easement of a
right of way. It affirmed the lower court's order dated November 14, 1984 in all respects, with
costs against the petitioner.
Hence, this petition which presents the following assignment of errors:
I
PUBLIC RESPONDENT ERRED IN AFFIRMING IN TOTO THE ORDER OF
DISMISSAL OF THE TRIAL COURT IN ALL RESPECTS WITH COSTS AGAINST
THE PETITIONER;
II
PUBLIC RESPONDENT ERRED IN ITS DECISION TO THE EFFECT THAT
PETITIONER HAS NOT SUFFICIENTLY MET THE REQUIREMENTS OF THE
LAW AND IN FAILING TO PROVE HIS RIGHT OF WAY
THROUGH GATCHALIAN AVENUE OR PALANYAG ROAD AGAINST THE
RESPONDENTS HEREIN;
III
PUBLIC RESPONDENT ERRED IN FAILING TO SET ASIDE THE ORDER OF THE
TRIAL COURT, AND NOT ADOPTING THE DECISION OF THE TRIAL COURT
DATED JULY 9, 1982 GRANTING TO PETITIONER A RIGHT OF WAY IN THE
SUBJECT PREMISES. (Rollo, pp. 14-15).
These assigned errors center on the issue of whether or not the petitioner has successfully
shown that all the requisites necessary for the grant of an easement of a right of way in his
favor are present.
An easement or servitude is an encumbrance imposed upon an immovable for the benefit of
another immovable belonging to a different owner as defined in Article 613 of the Civil Code.
It is established either by law, in which case it is called legal, or by the will of the parties, in
which event it is a voluntary easement. (See Article 619, Civil Code of the Philippines; City of
Manila v. Entote, 57 SCRA 497, 503).
Since there is no agreement between the contending parties in this case granting a right of way
by one in favor of the other, the establishment of a voluntary easement between the petitioner
and the respondent company and/or the other private respondents is ruled out. What is left to
examine is whether or not the petitioner is entitled to a legal or compulsory easement of a right
of way.
In the case of Bacolod-Murcia Milling Company, Inc. v. Capitol Subdivision, Inc., et al. (17
SCRA 731, 735-6), we held that:
". . . the Central had to rely strictly on its being entitled to a compulsory
servitude of right of way, under the Civil Code, and it could not claim
any such servitude without first establishing the preconditions for its
grant fixed by Articles 649 and 650 of the Civil Code of the Philippines:
(1) That it is surrounded by other immovables and
has no adequate outlet to a public highway (Art. 649, par. 1);
(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 insofar as
consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest.'
(Art. 650).
"By express provision of law, therefore, a compulsory right of way
cannot be obtained unless the four requisites enumerated are first shown
to exist, and the burden of proof to show their existence was on the
Central." (See also Angela Estate, Inc. v. Court of First Instance of
Negros Occidental, 24 SCRA 500, 510)
On the first requisite, the petitioner contends that since the respondent company constructed
the concrete wall blocking his ingress and egress via the Gatchalian Avenue, the "nearest,
most convenient and adequate road" to and from a public highway, he has been constrained to
use as his "temporary" way the adjoining lots belonging to different persons. Said way is
allegedly "bumpy and impassable especially during rainy seasons because of flood waters,
mud and tall 'talahib' grasses thereon." Moreover, according to the petitioner, the road right of
way which the private respondents referred to as the petitioner's alternative way to Sucat Road
is not an existing road but has remained a proposed road as indicated in the subdivision plan of
the Sobrina Rodriguez Lombos Subdivision.
The petitioner's position is not impressed with merit. We find no reason to disturb the
appellate court's finding of fact that the petitioner failed to prove the non-existence of an
adequate outlet to the Sucat Road except through the Gatchalian Avenue. As borne out by the
records of the case, there is a road right of way provided by the Sobrina Rodriguez Lombos
Subdivision indicated as Lot 4133-G-12 in its subdivision plan for the buyers of its lots. The
fact that said lot is still undeveloped and causes inconvenience to the petitioner when he uses it
to reach the public highway does not bring him within the ambit of the legal requisite. We
agree with the appellate court's observation that the petitioner should have, first and foremost,
demanded from the Sobrina Rodriguez Lombos Subdivision the improvement and
maintenance of Lot 4133-G-12 as his road right of way because it was from said subdivision
that he acquired his lot and not either from the Gatchalian Realty or the respondents Asprec.
To allow the petitioner access to Sucat Road through Gatchalian Avenue inspite of a road right
of way provided by the petitioner's subdivision for its buyers simply
because Gatchalian Avenue allows petitioner a much greater case in going to and coming from
the main thoroughfare is to completely ignore what jurisprudence has consistently maintained
through the years regarding an easement of a right of way, that "mere convenience for the
dominant estate is not enough to serve as its basis. To justify the imposition of this servitude,
there must be a real, not a fictitious or artificial, necessity for it." (See Tolentino, Civil Code of
the Philippines, Vol. II, 2nd ed., 1972, p. 371) LLpr
Considering that the petitioner has failed to prove the existence of the first requisite as
aforestated, we find it unnecessary to discuss the rest of the preconditions for a legal or
compulsory right of way.
Once again, we apply the rule that findings of facts of the Court of Appeals are binding on the
Supreme Court and will not be overturned when supported by the evidence on record save in
the known exceptions such as gross misappreciation of the evidence or misapprehension of
facts. (See Community Savings and Loan Association, Inc. v. Court of Appeals, et al., G.R.
No. 75786, promulgated on August 31, 1987; Regalario v. Northwest Finance Corporation,
117 SCRA 45; Agton v. Court of Appeals, 113 SCRA 322). cdrep
WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED for lack of merit.
The questioned decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
TOMAS ENCARNACION, petitioner, vs. THE
HONORABLE COURT OF APPEALS AND THE INTESTATE
ESTATE OF THE LATE EUSEBIO DE SAGUN AND THE HEIRS OF THE
LATE ANICETA MAGSINO VIUDA DE SAGUN, * respondents.
SYLLABUS
1. CIVIL LAW; EASEMENTS; RIGHT OF WAY; ABSENCE OF ACCESS TO A PUBLIC
ROAD. Where a private property has no access to a public road, it has the right ofeasement
over adjacent servient estates as a matter of law.
2. ID.; ID.; ID.; WIDTH OF THE PASSAGE DETERMINED BY THE NEEDS OF THE
DOMINANT PROPERTY. Under Article 651 of the Civil Code, it is the needs of the
dominant property which ultimately determine the width of the passage. And these needs may
vary from time to time.
3. ID.; ID.; ID.; ID.; CASE AT BAR. When petitioner started out as a plant nursery
operator, he and his family could easily make do with a few pushcarts to tow the plants to the
national highway. But the business grew and with it the need for the use of modern
means of conveyance or transport. Manual hauling of plants and garden soil and
useof pushcarts have become extremely cumbersome and physically taxing. To force
petitioner to leave his jeepney in the highway, exposed to the elements and to the risk oftheft
simply because it could not pass through the improvised pathway, is sheer pigheadedness on
the part of the servient estate and can only be counter-productive for all the people concerned.
Petitioner should not be denied a passageway wide enough to accommodate his jeepney since
that is a reasonable and necessary aspect of the plant nursery business.
4. ID.; ID.; ID.; PAYMENT OF INDEMNITY WHERE EASEMENT IS CONTINUOUS
AND PERMANENT. Where the easement to be established in favor of petitioner is of a
continuous and permanent nature, the indemnity shall consist of the value of the land occupied
and the amount of the damage caused to the servient estate pursuant to Article 649 of the Civil
Code.
D E C I S I O N FERNAN, C.J p:
Presented for resolution in the instant petition for review is the not-so-usual
question of whether or not petitioner is entitled to a widening of an already existing
easement ofright-of-way. Both the trial court and the Appellate Court ruled that petitioner is
not so entitled, hence the recourse to this Court. We reverse.
The facts are undisputed.
Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta Magsino Viuda
de Sagun are the owners of two adjacent estates situated in Buco, Talisay, Batangas **
Petitioner owns the dominant estate which has an area of 2,590 square meters and bounded on
the North by Eusebio de Sagun and Mamerto Magsino, on the south by Taal Lake, on the East
by Felino Matienso and on the West by Pedro Matienzo. Private respondents co-own the 405-
square-meter servient estate which is bounded on the North by the National Highway (Laurel
Talisay Highway), on the South by Tomas Encarnacion, on the East by Mamerto Magsino and
on the West by Felipe de Sagun. In other words, the servient estate stands between the
dominant estate and the national road.
Prior to 1960, when the servient estate was not yet enclosed with a concrete fence, persons
going to the national highway just crossed the servient estate at no particular point. However,
in 1960 when private respondents constructed a fence around the servient estate, a roadpath
measuring 25 meters long and about a meter wide was constituted to provide access to the
highway. One-half meter width of the path was taken from the servient estate and the other
one-half meter portion was taken from another lot owned by Mamerto Magsino. No
compensation was asked and none was given for the portions constituting the pathway. 1
It was also about that time that petitioner started his plant nursery business on his land where
he also had his abode. He would use said pathway as passage to the highway for his family
and for his customers.
Petitioner's plant nursery business through sheer hard work flourished and with that, it became
more and more difficult for petitioner to haul the plants and garden soil to and from the
nursery and the highway with the use of pushcarts. In January, 1984, petitioner was able to
buy an owner-type jeep which he could use for transporting his plants. However, that jeep
could not pass through the roadpath and so he approached the servient estate owners (Aniceta
Vda. de Sagun and Elena Romero Vda. de Sagun) and requested that they sell to him one and
one-half (1 1/2) meters of their property to be added to the existing pathway so as to allow
passage for his jeepney. To his utter consternation, his request was turned down by the two
widows and further attempts at negotiation proved futile.
Petitioner then instituted an action before the Regional Trial Court of Batangas, Branch 6
(Tanauan) to seek the issuance of a writ of easement of a right of way over an additional
width of at least two (2) meters over the De Saguns' 405-square-meter parcel of land. 2
During the trial, the attention of the lower court was called to the existence of another exit to
the highway, only eighty (80) meters away from the dominant estate. On December 2, 1985,
the lower court rendered judgment dismissing petitioner's complaint. It ruled:
"It is clear, therefore, that plaintiff at present has two outlets to the
highway: one, through the defendants' land on a one meter wide
passageway, which is bounded on both sides by concrete walls and
second, through the dried river bed eighty meters away. The plaintiff
has an adequate outlet to the highway through the dried river bed where
his jeep could pass.
"The reasons given for his claim that the one-meter passageway through
defendants' land be widened to two and one-half meters to allow the
passage of his jeep, destroying in the process one of the concrete fences
and decreasing defendants' already small parcel to only about 332.5
square meters, just because it is nearer to the highway by 25 meters
compared to the second access of 80 meters or a difference of only 65
meters and that passage through defendants' land is more convenient for
his (plaintiff's) business and family use are not among the conditions
specified by Article 649 of the Civil Code to entitle the plaintiff to a
right of way for the passage of his jeep through defendant's land." 3
On appeal, the Court of Appeals affirmed the decision of the trial court on January 28, 1987
and rejected petitioner's claim for an additional easement.
In sustaining the trial court, the Court of Appeals opined that the necessity interposed by
petitioner was not compelling enough to justify interference with the property rightsof private
respondents. The Appellate Court took into consideration the presence of a dried river bed
only eighty (80) meters away from the dominant estate and conjectured that petitioner might
have actually driven his jeep through the river bed in order to get to the highway, and that the
only reason why he wanted a wider easement through the De Sagun's estate was that it was
more convenient for his business and family needs.
After evaluating the evidence presented in the case, the Court finds that petitioner has
sufficiently established his 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 grossly inadequate. Generally, the right of way may be demanded: (1) when there is
absolutely no access to a public highway, and (2) when, even if there is one, it is difficult or
dangerous to use or is grossly insufficient. In the present case, the river bed route is traversed
by a semi-concrete bridge and there is no ingress nor egress from the highway. For the jeep to
reach the level of the highway, it must literally jump four (4) to five (5) meters up. Moreover,
during the rainy season, the river bed is impassable due to the floods. Thus, it can only be used
at certain times of the year. With the inherent disadvantages of the river bed which make
passage difficult, if not impossible, it is if there were no outlet at all. LexLib
Where a private property has no access to a public road, it has the right of easement over
adjacent servient estates 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 attention to the existing pathway which straddles the adjoining propertiesof the De
Sagun heirs and Mamerto Magsino.
The courts below have taken against petitioner his candid admission in open court that he
needed a wider pathway for the convenience of his business and family. (TSN, August 2,
1985, pp. 24-26). We cannot begrudge petitioner for wanting that which is convenient. But
certainly that should not detract from the more pressing consideration that there is a real and
compelling need for such servitude in his favor.
Article 651 of the Civil Code provides that "(t)he width of the easement of right of way shall
be that which is sufficient for the needs of the dominant estate, and may accordingly be
changed from time to time." This is taken to mean that under the law, it is the needs of the
dominant property which ultimately determine the width of the passage. And these needs may
vary from time to time. When petitioner started out as a plant nursery operator, he and his
family could easily make do with a few pushcarts to tow the plants to the national highway.
But the business grew and with it the need for the use of modern means of conveyance or
transport. Manual hauling of plants and garden soil and use of pushcarts have become
extremely cumbersome and physically taxing. To force petitioner to leave his jeepney in the
highway, exposed to the elements and to the risk of theft simply because it could not pass
through the improvised pathway, is sheer pigheadedness on the part of the servient estate and
can only be counter-productive for all the people concerned. Petitioner should not be denied a
passageway wide enough to accommodate his jeepney since that is a reasonable and necessary
aspect of the plant nursery business.

We are well aware that an additional one and one-half (11/2) meters in the width of the
pathway will reduce the servient estate to only about 342.5 square meters. But petitioner has
expressed willingness to exchange an equivalent portion of his land to compensate private
respondents for their loss. Perhaps, it would be well for respondents to take the
offer of petitioner seriously. 5 But unless and until that option is considered, the law decrees
that petitioner must indemnify the owners of the servient estate including Mamerto Magsino
from whose adjoining lot 1/2 meter was taken to constitute the original path several years ago.
Since the easement to be established in favor ofpetitioner is of a continuous and permanent
nature, the indemnity shall consist of the value of the land occupied and the amount of the
damage caused to the servient estate pursuant to Article 649 of the Civil Code which states in
part:
"Art. 649. The owner, or any person who by virtue of a real right may
cultivate or use any immovable, which is surrounded by other
immovables pertaining to other persons and without adequate outlet to a
public highway, is entitled to demand a right of way through the
neighboring estates, after payment of the proper indemnity.
"Should this easement be established in such a manner that its use may
be continuous for all the needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the servient estate.
xxx xxx xxx"
WHEREFORE, in conformity with the foregoing discussion, the appealed
decision of the Court of Appeals dated January 28, 1987 is REVERSED and SET ASIDE.
Petitioner TomasEncarnacion is hereby declared entitled to an additional
easement of right of way of twenty-five (25) meters long by one and one-half (11/2) meters
wide over the servient estate or a total area of 62.5 square meters after payment of the proper
indemnity.
SO ORDERED.
Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.
Footnotes
*The name "Aniceta de Sagun Viuda de Magsino" in the original caption of the instant
petition is erroneous. See the captions in the Complaint and the subsequent
Decision ofthe trial court. (Original Records, pp. 1 and 103).
**The servient estate originally belonged to Eusebio de Sagun, the son of Aniceta Magsino
Vda. de Sagun. After Eusebio's death, his widow Elena sold her share of the estate
to her mother-in-law and co-heir Aniceta. During the pendency of the civil case
for the grant of easement, Aniceta also died leaving six children as her heirs.
None of the children resides in the estate which as of 1985 is being administered
by Aniceta's brother, Mamerto Magsino. (Original Record, pp. 77-78; TSN,
August 9, 1985, pp. 22, 30-31).
1.TSN, August 9, 1985, pp. 17-19; July 19, 1985, p. 30.
2.Civil Case No. T-392.
3.Rollo, p. 33.







[G.R. No. 112331. May 29, 1996.]
ANASTACIA QUIMEN, petitioner, vs. COURT OF APPEALS and YOLANDA Q.
OLIVEROS, respondents.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE;
FINDINGS OF FACT OF THE COURT OF APPEALS REVERSING THE
DECISION OF THE TRIAL COURT, UPHELD ON APPEAL. But we find no cogent
reason to disturb the ruling of respondent appellate court granting a right of way to private
respondent through petitioner's property. In fact, as between petitioner Anastacia and
respondent Yolanda their agreement has already been rendered moot insofar as it concerns the
determination of the principal issue herein presented. The voluntary easement in
favor of private respondent, which petitioner now denies but which the court is inclined to
believe, has in fact become a legal easement or an easement by necessity constituted by law.
The trial court found that Yolanda's property was situated at the back of her father's property
and held that there existed an available space ofabout nineteen (19) meters long which could
conveniently serve as a right of way between the boundary line and the house of Yolanda's
father; that the vacant space ended at the left back of Sotero's store which was made of strong
materials; that this explained why Yolanda requested a detour to the lot of Anastacia and cut
an opening of one (1) meter wide and five (5) meters long to serve as her right of way to the
public highway. But notwithstanding its factual observations, the trial court concluded,
although erroneously, that Yolanda was not entitled to a right of way on petitioner's property
since a detour through it would not make the line straight and would not be the route shortest
to the public highway. In applying Art. 650 of the New Civil Code,
respondent Court of Appeals declared that the proposed right of way of Yolanda, which is one
(1) meter wide and five (5) meters long at the extreme right of petitioner's property, will cause
the least prejudice and/or damage as compared to the suggested passage through the
property of Yolanda' s father which would mean destroying the sari-sari store made of strong
materials. Absent any showing that these findings and conclusion are devoidof factual support
in the records, or are so glaringly erroneous, this Court accepts and adopts them. As between a
right of way that would demolish a store of strong materials to provide egress to a public
highway, and another right of way which although longer will only require an avocado tree to
be cut down, the second alternative should be preferred. After all, it is not the main
function of this Court to analyze or weigh the evidence presented all over again where the
petition would necessarily invite calibration ofthe whole evidence considering primarily the
credibility of witnesses, existence and relevancy of specific surrounding circumstances, their
relation to each other, and the probabilities of the situation. In sum, this Court finds that the
decision of respondent appellate court is thoroughly backed up by law and the evidence.
2. CIVIL LAW; PROPERTY, OWNERSHIP AND ITS MODIFICATIONS; EASEMENT,
DEFINED. As defined, an easement is a real right on another's property, corporeal and
immovable, whereby the owner of the latter must refrain from doing or allowing somebody
else to do or something to be done on his property, for the benefit of another person or
tenement. It is jus in re aliena, inseparable, indivisible and perpetual, unless extinguished by
causes provided by law. A right of way in particular is a privilege constituted by covenant or
granted by law to a person or class of persons to pass over another's property when his
tenement is surrounded by realties belonging to others without an adequate outlet to the public
highway. The owner of the dominant estate can demand a right of way through the servient
estate provided he indemnifies the owner thereof for the beneficial use of his property.
3. ID.; ID.; EASEMENTS; RIGHT OF WAY; CONDITIONS FOR GRANT THEREOF.
The conditions sine qua non for a valid grant of an easement of right of way are: (a) the
dominant estate is surrounded by other immovables without an adequate outlet to a public
highway; (b) the dominant estate is willing to pay the proper indemnity; (c) the isolation was
not due to the acts of the dominant estate; and, (d) the right of way being claimed is at a point
least prejudicial to the servient estate.
4. ID.; ID.; ID.; ID.; CRITERION OF LEAST PREJUDICE TO THE SERVIENT ESTATE,
CONSTRUED. Petitioner finally insists that respondent court erroneously concluded that
the right of way proposed by private respondent is the least onerous to the parties. We cannot
agree. Article 650 of the New Civil Code explicitly states that the easement ofright of way
shall be established at the point least prejudicial to the servient estate and, insofar as consistent
with this rule, where the distance from the dominant estate to a public highway may be the
shortest. The criterion of least prejudice to the servient estate must prevail over the
criterion of shortest distance although this is a matter ofjudicial appreciation. While shortest
distance may ordinarily imply least prejudice, it is not always so as when there are permanent
structures obstructing the shortest distance; while on the other hand, the longest distance may
be free of obstructions and the easiest or most convenient to pass through. In other words,
where the easement may be established on any of several tenements surrounding the dominant
estate, the one where the way is shortest and will cause the least damage should be chosen.
However, as elsewhere stated, if these two (2) circumstances do not concur in a single
tenement, the way which will cause the least damage should be used, even if it will not be the
shortest.
D E C I S I O N BELLOSILLO, J p:
IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest
and will cause least prejudice shall be chosen. However, if the two circumstances do not
concur in a single tenement, the way where damage will be least shall be used even if not
the shortest route. 1 This is so because least prejudice prevails over shortest distance.
This means that the court is not bound to establish what is the shortest distance; a longer
way may be adopted to avoid injury to the servient estate, such as when there are
constructions or walls which can be avoided by a round about way, or to secure the
interest of the dominant owner, such as when the shortest distance would place the way
on a dangerous decline.
Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together with her
brothers Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of property situated in
Pandi, Bulacan. They agreed to subdivide the property equally among themselves, as they did,
with the shares of Anastacia, Sotero, Sulpicio and Rufina abutting the municipal road. The
share of Anastacia, located at the extreme left, was designated as Lot No. 1448-B-1. It is
bounded on the right by the property of Sotero designated as Lot No. 1448-B-2. Adjoining
Sotero's property on the right are Lots Nos. 1448-B-3 and 1448-B-4 originally owned by
Rufina and Sulpicio, respectively, but which were later acquired by a certain Catalina Santos.
Located directly behind the lots of Anastacia and Sotero is the share of their brother Antonio
designated as Lot No. 1448-B-C which the latter divided into two (2) equal parts, now Lots
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 located behind Anastacia's Lot No. 1448-B-1, while Lot No. 1448-B-6-B is behind the
property of Sotero, father of respondent Yolanda.
In February 1982 Yolanda purchased Lot No. 1448-B-6-A from her uncle Antonio through her
aunt Anastacia who was then acting as his administratrix. According to Yolanda, when
petitioner offered her the property for sale she was hesitant to buy as it had no access to a
public road. But Anastacia prevailed upon her to buy the lot with the assurance that she would
give her a right of way on her adjoining property for P200.00 per square meter.
Thereafter, Yolanda constructed a house on the lot she bought using as her
passageway to the public highway a portion of Anastacia's property. But when Yolanda
finally offered to pay for the use of the pathway Anastacia refused to accept the payment.
In fact she was thereafter barred by Anastacia from passing through her property. 2
In February 1986 Yolanda purchased the other lot of Antonio Quimen, Lot No.
1448-B-6-B, located directly behind the property of her parents who provided her a
pathway gratis et amore between their house, extending about nineteen (19) meters from
the lot of Yolanda behind the sari sari store of Sotero, and Anastacia's perimeter fence.
The store is made of strong materials and occupies the entire frontage of the lot
measuring four (4) meters wide and nine meters (9) long. Although the pathway leads to
the municipal road it is not adequate for ingress and egress. The municipal road cannot be
reached with facility because the store itself obstructs the path so that one has to pass
through the back entrance and the facade of the store to reach the road.
On 29 December 1987 Yolanda filed an action with the proper court praying
for a right of way through Anastacia's property. An ocular inspection upon
instruction ofthe presiding judge was conducted by the branch clerk of court. The report
was that the proposed right of way was at the extreme right of Anastacia's property facing
the public highway, starting from the back of Sotero's sari sari store and extending
inward by one (1) meter to her property and turning left for about five (5) meters to avoid
the store of Sotero in order to reach the municipal road 3 and the way was unobstructed
except for an avocado tree standing in the middle. 4
But on 5 September 1991 the trial court dismissed the complaint for
lack of cause of action, explaining that the right of way through Sotero's property was a
straight path and to allow a detour by cutting through Anastacia's property would no
longer make the path straight. Hence the trial court concluded that it was more practical
to extend the existing pathway to the public road by removing that portion of the store
blocking the path as that was the shortest route to the public road and the least prejudicial
to the parties concerned than passing through Anastacia's property. 5

On appeal by respondent Yolanda, the Court of Appeals reversed the
lower court and held that she was entitled to a right of way on petitioner's property and
that the way proposed by Yolanda would cause the least damage and detriment to the
servient estate. 6 The appellate court however did not award damages to private
respondent as petitioner did not act in bad faith in resisting the claim.
Petitioner now comes to us imputing ERROR to respondent Court of Appeals:
(a) in disregarding the agreement of the parties; (b) in considering petitioner's property as
a servient estate despite the fact that it does not abut or adjoin the property of private
respondent; and, (c) in holding that the one-meter by five-meter passage way proposed by
private respondent is the least prejudicial and the shortest distance to the public road.
Incidentally, petitioner denies having promised private respondent a right of way. She claims
that her agreement with private respondent was to provide the latter with a rightof way on the
other lot of Antonio Quimen under her administration when it was not yet sold to private
respondent. Petitioner insists that passing through the property ofYolanda's parents is more
accessible to the public road than to make a detour to her property and cut down the avocado
tree standing thereon.
Petitioner further argues that when Yolanda purchased Lot No. 1448-B-6-B in 1986 the
easement of right of way she provided her (petitioner) was ipso jure extinguished as a
result of the merger of ownership of the dominant and the servient estates in one person so that
there was no longer any compelling reason to provide private respondent with a right of way
as there are other surrounding lots suitable for the purpose. Petitioner strongly maintains that
the proposed right of way is not the shortest access to the public road because of the detour
and that, moreover, she is likely to suffer the most damage as she derives a net
income of P600.00 per year from the sale of the fruits ofher avocado tree, and considering that
an avocado has an average life span of seventy (70) years, she expects a substantial earning
from it. 7
But we find no cogent reason to disturb the ruling of respondent
appellate court granting a right of way to private respondent through petitioner's property.
In fact, as between petitioner Anastacia and respondent Yolanda their agreement has
already been rendered moot insofar as it concerns the determination of the principal issue
herein presented. The voluntary easement in favor of private respondent, which petitioner
now denies but which the court is inclined to believe, has in fact become a legal easement
or an easement by necessity constituted by law. 8
As defined, an easement is a real right on another's property, corporeal and
immovable, whereby the owner of the latter must refrain from doing or allowing
somebody else to do or something to be done on his property, for the benefit of another
person or tenement. 9 It is jus in re aliena, inseparable, indivisible and perpetual, unless
extinguished by causes provided by law. A right of way in particular is a privilege
constituted by covenant or granted by law 10 to a person or class of persons to pass over
another's property when his tenement is surrounded by realties belonging to others
without an adequate outlet to the public highway. The owner of the dominant estate can
demand a right of way through the servient estate provided he indemnifies the owner
thereof for the beneficial use of his property. 11
The conditions sine qua non for a valid grant of an easement of right of way
are: (a) the dominant estate is surrounded by other immovables without an adequate
outlet to a public highway; (b) the dominant estate is willing to pay the proper indemnity;
(c) the isolation was not due to the acts of the dominant estate; and, (d) the right ofway
being claimed is at a point least prejudicial to the servient estate. 12
A 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 they are enclosed with permanent
improvements like a concrete fence and store and have (sic) no egress
leading to the road but because of the assurance of the defendant that
plaintiff will be provided one (1) meter wide and five (5) meters long
right of way in the sum of P200.00 per square meter to be taken from
Anastacia's lot at the side of a concrete store until plaintiff reach(es) her
father's land, plaintiff was induced to buy the aforesaid parcels of land .
. . That the aforesaid right of way is the shortest, most convenient and
the least onerous leading to the road and being used by the plaintiff's
predecessors-in-interest from the very inception . . . .
The evidence clearly shows that the property of private respondent is hemmed
in by the estates of other persons including that of petitioner; that she offered to pay
P200.00 per square meter for her right of way as agreed between her and petitioner; that
she did not cause the isolation of her property; that the right of way is the least prejudicial
to the servient estate. 14 These facts are confirmed in the ocular inspection report of the
clerk of court, more so that the trial court itself declared that "[t]he said
properties of Antonio Quimen which were purchased by plaintiff
Yolanda Quimen Oliveros were totally isolated from the public highway and there
appears an imperative need for an easement of right of way to the public highway." 15
Petitioner finally insists that respondent court erroneously concluded that the right of way
proposed by private respondent is the least onerous to the parties. We cannot agree. Article
650 of the New Civil Code explicitly states that the easement of right of way shall be
established at the point least prejudicial to the servient estate and, insofar as consistent with
this rule, where the distance from the dominant estate to a public highway may be the shortest.
The criterion of least prejudice to the servient estate must prevail over the criterion of shortest
distance although this is a matter of judicial appreciation. While shortest distance may
ordinarily imply least prejudice, it is not always so as when there are permanent structures
obstructing the shortest distance; while on the other hand, the longest distance may be
free of obstructions and the easiest or most convenient to pass through. In other words, where
the easement may be established on any of several tenements surrounding the dominant estate,
the one where the way isshortest and will cause the least damage should be chosen. However,
as elsewhere stated, if these two (2) circumstances do not concur in a single tenement, the way
which will cause the least damage should be used, even if it will not be the shortest. 16 This is
the test.
In the trial court, petitioner openly admitted
Q. You testified during your direct examination about this plan, kindly
go over this and please point to us in what portion of this plan
is the house or store of the father of the (plaintiff)?
A. This one, sir (witness pointed a certain portion located near the
proposed right of way).
xxx xxx xxx
Q. Now, you will agree with me . . . that this portion is the front
portion of the lot owned by the father of the plaintiff and
which was (sic) occupied by a store made up of strong
materials?
A. It is not true, sir.
Q. What materials does (sic) this store of the father of the plaintiff
made of?
A. Hollow blocks and the side is made of wood, sir.
xxx xxx xxx
Q. Just before your brother disposed that 1/2 portion of the lot in
question, what right of way does (sic) he use in reaching the
public road, kindly point to this sketch that he is (sic) using in
reaching the public road?
A. In my property, sir.
Q. Now you will agree with me . . . the main reason why your brother is
(sic) using this property is because there was a store located
near this portion?
A. Yes, and according to the father of Yolanda there is no other way
than this, sir. 17
The trial court found that Yolanda's property was situated at the back of her
father's property and held that there existed an available space of about nineteen (19)
meters long which could conveniently serve as a right of way between the boundary line
and the house of Yolanda's father; that the vacant space ended at the left back ofSotero's
store which was made of strong materials; that this explained why Yolanda requested a
detour to the lot of Anastacia and cut an opening of one (1) meter wide and five (5)
meters long to serve as her right of way to the public highway. But notwithstanding its
factual observations, the trial court concluded, although erroneously, that Yolanda was
not entitled to a right of way on petitioner's property since a detour through it would not
make the line straight and would not be the route shortest to the public highway.
In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared that the
proposed right of way of Yolanda, which is one (1) meter wide and five (5) meters long at the
extreme right of petitioner's property, will cause the least prejudice and/or damage as
compared to the suggested passage through the property of Yolanda's father which would
mean destroying the sari sari store made of strong materials. Absent any showing that these
findings and conclusion are devoid of factual support in the records, or are so glaringly
erroneous, this Court accepts and adopts them. As between a right of way that would demolish
a store of strong materials to provide egress to a public highway, and another right of way
which although longer will only require an avocado tree to be cut down, the second alternative
should be preferred. After all, it is not the main function of this Court to analyze or weigh the
evidence presented all over again where the petition would necessarily invite calibration of the
whole evidence considering primarily the credibility of witnesses, existence and
relevancy of specific surrounding circumstances, their relation to each other, and the
probabilities of the situation. 18

In sum, this Court finds that the decision of respondent
appellate court is thoroughly backed up by law and the evidence.

WHEREFORE, no reversible error having been committed by
respondent Court of Appeals, the petition is DENIED and the decision subject of review
is AFFIRMED. Costs against petitioner.
SO ORDERED.
||| (Quimen v. Court of Appeals, G.R. No. 112331, May 29, 1996)



[G.R. No. 5044. December 1, 1909.]
EDWIN CASE, petitioner-appellant, vs. THE HEIRS OF TUASON
Y SANTIBAEZ, opponents-appellees.
SYLLABUS
1. REALTY; EASEMENTS; PRESUMPTIONS WITH RESPECT TO PARTY
WALLS. The legal presumption of the existence of an easement of a party wall is
limited to the three cases contained in article 572 of the Civil Code, and is that of juris
tantum; this must be accepted unless the contrary should appear from the title deeds of
the adjoining properties, that is to say, that the entire wall in question belongs to one of
the property owners, or, while there is no exterior sign to destroy such presumption and
to support a presumption against the party wall. (Art. 573, Civil Code.)
D E C I S I O N
TORRES, J p:
On the 7th of December, 1906, the attorneys for Edwin Case filed a petition
with the Court of Land Registration requesting that the property owned by the applicant,
described in the petition, be registered in accordance with the provisions of the Land
Registration Act. After a written opposition was presented by Felipe R. Caballero on the
6th of June, 1907, on behalf of the heirs of the late Pablo Tuason and Leocadia
Santibaez, counsel for the applicant, Case, on August 2, 1907, amended the original
petition and set forth: that said property, situated in Calle Escolta, district of Binondo,
consists of a parcel of land and the building erected thereon bearing Nos. 142 and 152; it
is bounded on the northwest, approximately, by the estero of Santa Cruz and the property
of Carmen de Ayala de Roxas; on the southeast by the River Pasig; on the southwest by
the property of the heirs of Tuason and 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 being detailed in the plan attached to the
petition; that according to the last assessment made for the purposes of taxation the land
was valued at P170,231 and the buildings thereon at P30,000; that the property is free
from all incumbrance, and no one has any interest therein or right thereto; that on the
northeast side the property had in its favor the right of easement over some 234.20 square
meters of land owned by the said Ayala de Roxas, and that the applicant acquired the
property by succession from Doa Clotilde Romree.
In the written opposition above alluded to, counsel for the heirs of Pablo
Tuason and Leocadia Santibaez alleged that the parties whom he represents are owners
in common of the property adjoining 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 potion of the lot of the said heirs of Tuason and Santibaez in the form indicated by the
red line in the annexed plan; that the true dividing line between the property of the
petitioner and that of the said heirs is the walls indicated in black ink on the
accompanying plan; that said walls belong to the opponents, and that about two years
ago, when the applicant made alterations in the buildings erected on his land, he
improperly caused a portion of them to rest on the wall owned by the parties whom he
represents, at points 12, 13, and 14 of said plan; for which reason the opponent prayed the
court to direct the applicant to amend the line marked in his plan with the letters Y, X, U,
T, S, and R, so that it may agree with the wall indicated by the numbers 1, 2, 3, 4, 5, 6, 7,
8, 9, 10, 11, 12, 13, and 14 on the plan which accompanist the written opposition,
reducing the are to whatever it may be after the amendment has been made; that the
applicant 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 the two properties, in view of which it entered judgment
on the 31st of July, 1908, sustaining the opposition offered by the representative of the
heirs of Pablo Tuason and Leocadia Santibaez, and after declaring a general default
granted the registration of the property described in the application filed by Edwin Case,
with the exclusion of the wall claimed by the opponents and shown on their plan by the
lines numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14; and in view of the fact that
lines drawn on the plan offered in evidence by the applicant under letter G. are not
correctly drawn, once this decision shall have become final, let the dividing line of both
properties be fixed by common accord between the two parties and their experts, taking
as a base for the same the amended line of walls drawn on the plan of the opponents, but
should they not reach an agreement a surveyor of the Court of Land Registration shall be
detailed to fix the same at the expense of the parties; the court also ordered the
cancellation of the registration shall be detailed to fix the same at the expense of the
parties; the court also ordered the cancellation of the registration entries of the property
entered in the name of Clotilde Romree, principal of the petitioner, at page 142 and those
following of volume 15, section of Binondo and 52 of the register, property No. 828, first
entry.
On the 12th of August, 1908, the petitioner moved for the 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; that said decision was contrary to the law,
in so far as it excludes the said decision was contrary to the law, in so far as it excludes
the said wall, and that the conclusions of fact therein are openly and manifestly contrary
to the weight of the evidence in so far as they referred to the exclusion of said wall. The
said motion was overruled on the 15th of the same month, to which overruling the
applicant excepted and announced his intention to perfect the corresponding bill of
exceptions which was filed, approved, and submitted to this court together with the
proper assignment of errors.
It the appeal interposed by the applicant against the decision of the Court of
Land Registration, now before 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 River Pasig, 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 in this second instance, or is the
property of the said opponents, the heirs of the late Tuason and Santibaez.
The trial court after considering the evidence adduced by both parties to the
suit, found that the wall in controversy belongs to the opponents for the reason, among
others that in the public document by which one of their original ancestors acquired on
the 19th of April, 1796, the property now possessed by them, it appears that the property
was then already inclosed by a stone wall. This document, which was offered in evidence
by the opponents, has not been impugned by the applicant. On the contrary, it was
acknowledged as the title deed of the property adjoining that of the applicant by the
witness Juan 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 one backing the other, and which respectively support the edifices of
the petitioner and of the opponents from points 36, 35, 34, 33, 32, 31, and 30 on the plan
of the petitioner corresponding to points 1 to 6 on that of the opponents.
This section of the wall of the opponents embraced within the points mentioned
in the plans offered in evidence by the parties, for the very reason that it supports only the
property of the opponents and not that 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, and besides, the building
erected thereon disproves the pretension of the petitioner.
It should, however, be noted that portion of the wall between the numbers 3, 4,
5, and 6 on the plan of the opponents, which corresponds to numbers 33, 32, 31, and 30
of that of the petitioner, and which constitutes the cesspool on the property of the latter,
belongs to him, and it has so been admitted by counsel for the opponents, for the reason
that the petitioner had acquired it by prescription, the opponents having lost control over
the area of land covered by the said cesspool together with the walls that inclose it.
Under article 572 of the Civil Code the easement of party walls is presumed,
unless there is a title or exterior sign, or proof to the contrary, among others, in dividing
walls of adjoining buildings up to the common point of elevation.
The legal presumption as to party walls is limited to the three cases dealt with
in the said article of the code, and is that of juris tantum unless the contrary appear from
the little of ownership of the adjoining properties, that is to say, that the entire wall in
controversy belongs to one of the property owners, or where there is no exterior sign to
destroy such presumption and support a presumption against the party wall. (Art. 573,
Civil Code.)
The intermediate portion of the wall in question, lying between numbers 6 and
13 on the defendants' plan, equivalent to a little more than numbers 30 to 25 on the plan
of the petitioner, is the portion against which no other wall appears to have been erected
on the land owned by Mr. Case. In spite of this it can not be presumed that the aforesaid
portion was a party wall, and that it was not exclusively owned by the defendants,
inasmuch as the latter have proven by means of a good title that has not been impugned
by the petitioner, that when one of their ancestors and principals acquired the property the
lot was already inclosed by the wall on which the building was erected; it must therefore
be understood that in the purchase of the property the wall by which the land was
inclosed was necessarily included.

The above documentary evidence has not been overcome by any other
presented by the petitioner, by apart from the record discloses the existence of certain
unquestionable signs. These consist of constructions made by the petitioner himself on
his own property which entirely destroy any presumption 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. Two of them are beveled on the side toward the land of the objectors, and
the third had recently imbedded in the wall on the side of the property of the opponents.
These things constitute exterior signs and were recorded as the result of personal
inspection 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 edifice he had constructed between points 21 and 13 of the corrected plan
is a further indication that the neighboring wall is not a party one. He knew perfectly well
that he had no right to rest his building on the 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 Rive 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 at 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, as has 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 the built by the petitioner, and
that it is the exclusive property of the objectors and is not a party wall can not be denied.
It therefore appears from the proceedings that, with the exception of the small
portion of the wall in question occupied by the latrine on the property of the petitioner, ad
which the opponents admit that he had acquired by prescription, the whole of said wall
from the Escolta to the River Pasig can not be presumed to be a party wall; the evidence
to the contrary conclusively proves that it belonged exclusively to the defendants, and it
has been further shown in the case that at one time an old building belonging to the
opponents used to rest on a portion of the wall near the river.
In view of the foregoing, and considering that the judgment appealed from is in
accordance with the law and the merits of the case, it is our opinion that the same should
be affirmed in full, as we do hereby affirm it, with the costs against the petitioner. So
ordered.
||| (Case v. Heirs of Tuason y Santiba, G.R. No. 5044, December 01, 1909)






[G.R. No. 6076. December 29, 1911.]
SEVERINA and FLORA CHOCO, plaintiffs-appellants, vs. ISIDRO
SANTAMARIA, defendant-appellant.
SYLLABUS
1. REALTY; EASEMENTS; LIGHT, AIR, AND VIEW. Windows with
direct views, or balconies or any similar openings projecting over the estate of a
neighbor, can not be made if there is not a distance of at least 2 meters between the wall
in which they are built and the said estate. Neither can side nor oblique views be opened
over said property, unless there is a Distance of 60 centimeters. (Art. 582, Civil Code.)
2. ID.; ID.; ID. 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 joists or immediately under the ceiling, of the dimensions of 30 centimeters
square and, in any case, with an iron grate embedded in the wall and a wire screen. (Art.
581, Civil Code.)
D E C I S I O N MAPA, J p:
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
defendant is in possession of a parcel of land on the corner of Calles
Pescadores and P. Rada, in the district of Tondo, city of Manila, and
that he has erected a house thereon flush with the boundary line of the
adjacent property; that the plaintiffs are the owners of the land on both
sides of defendant's house, erected as stated, both on Calle Pescadores
and Calle P. Rada; that the defendant in the building of his house has
made several openings and windows in the walls of the house on both
sides overlooking the property of the plaintiffs' that at the time the
defendant was building his house, and the windows and openings were
being made, the plaintiffs protested, and later on and in 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 to have suggested an amicable 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 the balcony of said house,
marked 1 on Exhibit A, overlooking Calle P. Rada; and that this
window and 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, and each 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 or opening in the wall of the house in the
second story, which is about 25 by 35 centimeters, and is located a little
more than half way from the floor of the ceiling of the second story and
this is subdivided into smaller panes; and on the same side there are
three windows which are marked 2, 3, and 4 on Exhibit A, located
immediately under the ceiling of the first story, and each of the three is
25 by 25 centimeters.
"There are two other windows on the same side located
immediately under the ceiling, which are marked 5 and 6 on Exhibit A
and also on Exhibit C, and one of these windows is about 35 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.
"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 joists, or immediately
under the ceiling, thirty centimeters square, with an iron grate
embedded in the walland a wire screen.
"In this case the windows are in a wall not a party wall
adjoining plaintiff's estate, and the windows marked 2, 3, and 4, as
appears on Exhibit A, are less than thirty centimeters square and have a
wire screen, but there does not appear to be the iron grate embedded in
the wall.
"The windows marked 5 and 6, as indicated on Exhibit A,
have a wire screen but are more than thirty centimeters square, and have
not 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 in
the wall.
"The windows 8 and 9, as indicated on Exhibit A, have a wire
screen but no iron grate embedded in the wall, and are of a greater
dimension than thirty centimeters square.
"The window marked One on Exhibit A is located in a
balcony which overlooks the street, and, while the 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 or openings in the walls of the defendant's
house, as hereinbefore described, which directly overlook 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 that marked 7, which is not immediately
under the ceiling (techo).
"Let judgment be entered in favor of the plaintiffs, Severina
and Flora Choco, and against the defendant, Isidro Santamaria, forever
prohibiting the opening of the window marked No. 7, as hereinbefore
stated, which must be closed, and forever prohibiting the opening of the
windows and openings marked, as hereinbefore stated, 2, 3, 4, 5, 6, 8,
and 9, which must be closed or made to conform to the requirements of
law with regard to dimensions and an iron grate embedded in the wall,
with the costs of the action.''
The plaintiffs appealed from that judgment and allege in their appeal in this
instance:
1. That the lower court erred by not ordering in his judgment the final and
perpetual closing of the large window opened in the balcony of the back part of the
appellee's house and marked No. 1 in the photographic Exhibits A and D, on the ground
that the said window is in the balcony which overlooks Calle Padre Rada and that, though
the appellants' lot can be seen from this window, it is not contiguous to the latter's
property.
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 the law as regards their dimensions and the placing of
iron grates embedded in the wall.
3. That the lower court also erred in denying the appellants' petition for a
rehearing.
It appears obvious to us, from the evidence, that the window No. 1, referred to
in the first assignment of errors, is next to the appellants' lot. To judge from the
photographic views, Exhibits A and D, it opens on the boundary line between the said lot
and that of the appellee and is situated perpendicularly above a part of the wall that
belongs to the appellants. This opinion is corroborated by the testimony of the
defendant's witness who took the said photographs, in so far as he said that "a part of the
window in question is in front of the plaintiffs' property, and a person approaching the
window may clearly see the said lot." And certainly if it is in front of this lot, it is
unquestionable that it directly overlooks the same; but even though it did not and only a
side or oblique view of the lot could be obtained from it, it could not be kept open, since
between it and the plaintiffs' property there does not intervene the distance required by
law that of two meters in the first case, and 60 centimeters in the second. In reality,
there is no distance at all between the said window and the plaintiffs' lot, because, as we
have said, this window is perpendicular to the boundary line of the said lot; therefore, its
opening is a manifest 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 of the neighbor, can not be made if
there is not a distance of, at least, 2 meters between the wall in which
they are built and said estate.
"Neither can side nor oblique views be opened over said
property, unless there is a distance of 60 centimeters."
Because of the lack of the distance required by law, the window in question
must be closed, and consequently 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 the proper interpretation of article 581 of the
Civil Code which prescribes as follows:
"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 joists or immediately under the ceiling, of the
dimensions of 30 centimeters square and, in any case, with an iron grate
embedded 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, in the defendant's Exhibit A. They are all situated immediately under
the ceiling of the first floor and are provided with wire screens; some of them measure
more and others less than 30 centimeters square and none of them have iron grates
embedded in the wall. Owing to this last circumstance, none of them fully comply with
the conditions required by law; moreover, those numbered 5, 6, 8, and 9, have the
additional defect of being greater than 30 centimeters square. The trial judge therefore
ordered, in the judgment, that all the aforementioned windows be closed or that they be
made to conform to the law with respect to their dimensions and the placing of iron grates
embedded in the wall. The appellants maintain that these windows should have been
ordered closed absolutely and finally, and, consequently, that the option allowed the
defendant to keep them open, provided that he brought them within the terms of the law,
is contrary to the same and, therefore, illegal.

It is alleged as a ground for such averment that none of the windows referred to
are at the height of the ceiling joists, which is the first condition required by law.
"We understand by ceiling joists say the appellants in a building
composed of any given number of stories, the long pieces to which are nailed the boards
that form the ceiling of the last story of the building, counting the stories from below; and
this interpretation which we give to the words ceiling joists must be that most in harmony
with the spirit of article 581 of the code, the subject of our examination, since
immediately after them in the same article, in explanation, are found the words
orimmediately under 'los techos,' in order to indicate, without the least doubt, the sole
place or height where openings or windows may be made in conformity with 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 the rooms under it and certainly forms one of the essential
parts of every story. A story is composed of earth, pavement and ceiling, the latter, that
is, the ceiling, being that part of the story that is visible to the 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 appellants maintain, the
upper one alone.
Nor is their definition exact of the word joists, as it is employed in article 581
of the Code. According to 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 or for bracing and connecting the parts of the 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 are commonly called beams, intended to serve for
connection and main support of the timbers of the 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 last analysis they are what support and secure the structure of the story
immediately above; therefore it is not true that there may be joists only in the top story, as
the appellants claim by saying that they understand 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 need joists since it does not
have to support any other higher portion of the building. It has only to support the weight
of the roof, which is undoubtedly much less than that of a whole story. So that, according
to Mucius Scaevola (work cited, vol. 10, p. 487), it can not be said that the top story has
joists. And because it certainly does not have them, is the reason why the code in said
article 581 employs the phrase or immediately 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 are as follows:
"We said elsewere that these (the joists) were the 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, in referring
to the top story, which can not be said to have joists, article 581 makes
use of the phrase or immediately under 'los techos.'"
This does not mean that the italicized phrase refers solely and exclusively to the
top story, since the lower stories also have techos, as above set forth. In our opinion what
the author cited means is that in speaking of the top story, which has no joists, the words
of article 581 of the code, at the height of the ceiling joists, fail to apply, the phrase or
immediately under "los tecllos" alone being thereto applicable, in distinction from the
lower stories, with regard to which both phrases are applicable as they have at the same
time joists and techo. In referring to the lower stories either phrase may, in connection
with the other, determine the place, which surely can not be more than one, where it is
permissible to open the windows called regulation windows, whenever in them the joists
are actually joined to or placed next to the techo which forms the top of each of said
stories. Both phrases therefore 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 windows in question in all the stories of a building, without any exception,
is clear. Their purpose is, as article 581 itself says, to furnish light to the rooms, and it is
evident at a glance that the rooms of the lower stories 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, in connection with this provision of law.
The defendant is ordered to close finally and forever the window marked No. 1
in Exhibit A, the judgment appealed from in so far as it refers to said window being thus
modified, but affirmed in all other respects; without special finding as to costs in this
instance.
Arellano, C.J., Johnson and Calson, 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 an offense 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 is based, together with the reasons for its existence, disappeared
with the American occupation, and with the advent of American institutions, Constitution
and laws.
Moreover, it might well be that such a law would seriously conflict with those
laws, rules and regulations which are necessary to assure and preserve the public health.
||| (Choco v. Santamaria, G.R. No. 6076, December 29, 1911)