Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 152809 August 3, 2006
MERCEDES MORALIDAD, Petitioner,
vs.
SPS. DIOSDADO PERNES and ARLENE PERNES, Respondents.
DECISION
GARCIA, J.:
Under consideration is this petition for review on certiorari under Rule 45 of the Rules of Court to nullify and set aside the following issuances of the Court of Appeals (CA) in CA-G.R. SP No. 61610, to wit:
1. Decision dated September 27, 2001, 1 affirming an earlier decision of the Regional Trial Court (RTC) of Davao City which reversed that of the Municipal Trial Court in Cities (MTCC), Davao City, Branch 1, in an
action for unlawful detainer thereat commenced by the petitioner against the herein respondents; and
2. Resolution dated February 28, 2002, 2 denying petitioners motion for reconsideration.
At the heart of this controversy is a parcel of land located in Davao City and registered in the name of petitioner Mercedes Moralidad under Transfer Certificate of Title (TCT) No. T-123125 of the Registry of Deeds of
Davao City.
In her younger days, petitioner taught in Davao City, Quezon City and Manila. While teaching in Manila, she had the good fortune of furthering her studies at the University of Pennsylvania, U.S.A. While schooling, she
was offered to teach at the Philadelphia Catholic Archdiocese, which she did for seven (7) years. Thereafter, she worked at the Mental Health Department of said University for the next seventeen (17) years.
During those years, she would come home to the Philippines to spend her two-month summer vacation in her hometown in Davao City. Being single, she would usually stay in Mandug, Davao City, in the house of her
niece, respondent Arlene Pernes, a daughter of her younger sister, Rosario.
Back in the U.S.A. sometime in 1986, she received news from Arlene that Mandug at the outskirts of Davao City was infested by NPA rebels and many women and children were victims of crossfire between
government troops and the insurgents. Shocked and saddened about this development, she immediately sent money to Araceli, Arlenes older sister, with instructions to look for a lot in Davao City where Arlene and her
family could transfer and settle down. This was why she bought the parcel of land covered by TCT No. T-123125.
Petitioner acquired the lot property initially for the purpose of letting Arlene move from Mandug to Davao City proper but later she wanted the property to be also available to any of her kins wishing to live and settle in
Davao City. Petitioner made known this intention in a document she executed on July 21, 1986. 3 The document reads:
I, MERCEDES VIA MORALIDAD, of legal age, single, having been born on the 29th day of January, 1923, now actually residing at 8021 Lindbergh Boulevard, Philadelphia, Pennsylvania, U.S.A., wishes to convey
my honest intention regarding my properties situated at Palm Village Subdivision, Bajada, Davao City, 9501, and hereby declare:
1. That it is my desire that Mr. and Mrs. Diosdado M. Pernes may build their house therein and stay as long as they like;
2. That anybody of my kins who wishes to stay on the aforementioned real property should maintain an atmosphere of cooperation, live in harmony and must avoid bickering with one another;
3. That anyone of my kins may enjoy the privilege to stay therein and may avail the use thereof. Provided, however, that the same is not inimical to the purpose thereof;

4. That anyone of my kins who cannot conform with the wishes of the undersigned may exercise the freedom to look for his own;
5. That any proceeds or income derived from the aforementioned properties shall be allotted to my nearest kins who have less in life in greater percentage and lesser percentage to those who are better of in standing.
xxx xxx xxx
Following her retirement in 1993, petitioner came back to the Philippines to stay with the respondents on the house they build on the subject property. In the course of time, their relations turned sour because members
of the Pernes family were impervious to her suggestions and attempts to change certain practices concerning matters of health and sanitation within their compound. For instance, Arlenes eldest son, Myco Pernes, then
a fourth year veterinary medicine student, would answer petitioner back with clenched fist and at one time hurled profanities when she corrected him. Later, Arlene herself followed suit. Petitioner brought the matter to
the local barangay lupon where she lodged a complaint for slander, harassment, threat and defamation against the Pernes Family. Deciding for petitioner, the lupon apparently ordered the Pernes family to vacate
petitioners property but not after they are reimbursed for the value of the house they built thereon. Unfortunately, the parties could not agree on the amount, thus prolonging the impasse between them.
Other ugly incidents interspersed with violent confrontations meanwhile transpired, with the petitioner narrating that, at one occasion in July 1998, she sustained cuts and wounds when Arlene pulled her hair, hit her on
the face, neck and back, while her husband Diosdado held her, twisting her arms in the process.
Relations having deteriorated from worse to worst, petitioner, on July 29, 1998, lodged a formal complaint before the Regional Office of the Ombudsman for Mindanao, charging the respondent spouses, who were both
government employees, with conduct unbecoming of public servants. This administrative case, however, did not prosper.
Then, on August 3, 1998, petitioner filed with the MTCC of Davao City an unlawful detainer suit against the respondent spouses. Petitioner alleged that she is the registered owner of the land on which the respondents
built their house; that through her counsel, she sent the respondent spouses a letter demanding them to vacate the premises and to pay rentals therefor, which the respondents refused to heed.
In their defense, the respondents alleged having entered the property in question, building their house thereon and maintaining the same as their residence with petitioners full knowledge and express consent. To prove
their point, they invited attention to her written declaration of July 21, 1986, supra, wherein she expressly signified her desire for the spouses to build their house on her property and stay thereat for as long as they like.
The MTCC, resolving the ejectment suit in petitioners favor, declared that the respondent spouses, although builders in good faith vis--vis the house they built on her property, cannot invoke their bona fides as a valid
excuse for not complying with the demand to vacate. To the MTCC, respondents continued possession of the premises turned unlawful upon their receipt of the demand to vacate, such possession being merely at
petitioners tolerance, and sans any rental. Accordingly, in its decision dated November 17, 1999, 4 the MTCC rendered judgment for the petitioner, as plaintiff therein, to wit:
WHEREFORE, judgment is hereby rendered in favor of herein plaintiff and against the defendants, as follows:
a) Directing the defendants, their agents and other persons acting on their behalf to vacate the premises and to yield peaceful possession thereof to plaintiff;
b) Ordering defendants to pay P2,000.00 a month from the filing of this complaint until they vacate premises;
c) Sentencing defendants to pay the sum of P120,000.00 5 as attorneys fees and to pay the cost of suit.
Defendants counterclaim are hereby dismissed except with respect to the claim for reimbursement of necessary and useful expenses which should be litigated in an ordinary civil actions. (sic)
Dissatisfied, the respondent spouses appealed to the RTC of Davao City.
In the meantime, petitioner filed a Motion for Execution Pending Appeal. The motion was initially granted by the RTC in its Order of February 29, 2000, but the Order was later withdrawn and vacated by its
subsequent Order dated May 9, 2000 6 on the ground that immediate execution of the appealed decision was not the prudent course of action to take, considering that the house the respondents constructed on the
subject property might even be more valuable than the land site.
Eventually, in a decision 7 dated September 30, 2000, the RTC reversed that of the MTCC, holding that respondents possession of the property in question was not, as ruled by the latter court, by mere tolerance of the
petitioner but rather by her express consent. It further ruled that Article 1678 of the Civil Code on reimbursement of improvements introduced is inapplicable since said provision contemplates of a lessor-lessee
arrangement, which was not the factual milieu obtaining in the case. Instead, the RTC ruled that what governed the parties relationship are Articles 448 and 546 of the Civil Code, explaining thus:

Since the defendants-appellees [respondents] are admittedly possessors of the property by permission from plaintiff [petitioner], and builders in good faith, they have the right to retain possession of the property subject
of this case until they have been reimbursed the cost of the improvements they have introduced on the property.
Indeed, this is a substantive right given to the defendants by law, and this right is superior to the procedural right to [sic] plaintiff to immediately ask for their removal by a writ of execution by virtue of a decision which
as we have shown is erroneous, and therefore invalid. (Words in brackets supplied),
and accordingly dismissed petitioners appeal, as follows:
WHEREFORE, in view of the foregoing, the Decision appealed from is REVERSED and declared invalid. Consequently, the motion for execution pending appeal is likewise denied.
Counter-claims of moral and exemplary damages claimed by defendants are likewise dismissed. However, attorneys fees in the amount of fifteen thousand pesos is hereby awarded in favor of defendants-appellants, and
against plaintiffs.
SO ORDERED. 8
Therefrom, petitioner went to the CA in CA-G.R. SP No. 61610.
On September 27, 2001, the CA, while conceding the applicability of Articles 448 and 546 of the Civil Code to the case, ruled that it is still premature to apply the same considering that the issue of whether respondents
right to possess a portion of petitioners land had already expired or was already terminated was not yet resolved. To the CA, the unlawful detainer suit presupposes the cessation of respondents right to possess. The CA
further ruled that what governs the rights of the parties is the law on usufruct but petitioner failed to establish that respondents right to possess had already ceased. On this premise, the CA concluded that the ejectment
suit instituted by the petitioner was premature. The appellate court thus affirmed the appealed RTC decision, disposing:
WHEREFORE, premises considered, the instant petition for review is hereby denied for lack of merit. Accordingly, the petitioners complaint for Unlawful Detainer is DISMISSED.
SO ORDERED.
With the CAs denial of her motion for reconsideration in its Resolution of February 28, 2002, petitioner is now before this Court raising the following issues:
I. WHETHER OR NOT THE COURT OF APPEALS ERRED IN DISMISSING THE UNLAWFUL DETAINER CASE FOR BEING PREMATURE WHICH DECISION IS NOT IN ACCORDANCE WITH
LAW AND JURISPRUDENCE.
II. WHETHER OR NOT THE COURT OF APPEALS ERRED IN APPLYING ARTICLES 448 AND 546 AND THE PROVISIONS OF THE CODE ON USUFRUCT INSTEAD OF ARTICLE 1678 OF THE
CIVIL CODE.
The Court rules for the petitioner.
The Court is inclined to agree with the CA that what was constituted between the parties herein is one of usufruct over a piece of land, with the petitioner being the owner of the property upon whom the naked title
thereto remained and the respondents being two (2) among other unnamed usufructuaries who were simply referred to as petitioners kin. The Court, however, cannot go along with the CAs holding that the action for
unlawful detainer must be dismissed on ground of prematurity.
Usufruct is defined under Article 562 of the Civil Code in the following wise:
ART. 562. Usufruct gives a right to enjoy the property of another with the obligation of preserving its form and substance, unless the title constituting it or the law otherwise provides.
Usufruct, in essence, is nothing else but simply allowing one to enjoy anothers property. 9 It is also defined as the right to enjoy the property of another temporarily, including both the jus utendi and the jus
fruendi, 10 with the owner retaining the jus disponendi or the power to alienate the same. 11

It is undisputed that petitioner, in a document dated July 21, 1986, supra, made known her intention to give respondents and her other kins the right to use and to enjoy the fruits of her property. There can also be no
quibbling about the respondents being given the right "to build their own house" on the property and to stay thereat "as long as they like." Paragraph #5 of the same document earmarks "proceeds or income derived
from the aforementioned properties" for the petitioners "nearest kins who have less in life in greater percentage and lesser percentage to those who are better of (sic) in standing." The established facts undoubtedly gave
respondents not only the right to use the property but also granted them, among the petitioners other kins, the right to enjoy the fruits thereof. We have no quarrel, therefore, with the CAs ruling that usufruct was
constituted between petitioner and respondents. It is thus pointless to discuss why there was no lease contract between the parties.
However, determinative of the outcome of the ejectment case is the resolution of the next issue, i.e., whether the existing usufruct may be deemed to have been extinguished or terminated. If the question is resolved in
the affirmative, then the respondents right to possession, proceeding as it did from their right of usufruct, likewise ceased. In that case, petitioners action for ejectment in the unlawful detainer case could proceed and
should prosper.
The CA disposed of this issue in this wise:
xxx Section 1, Rule 70 of the 1997 Rules of Civil Procedure, as amended, provides xxx
xxx xxx xxx
From the foregoing provision, it becomes apparent that for an action for unlawful detainer to prosper, the plaintiff [petitioner] needs to prove that defendants [respondents] right to possess already expired and
terminated. Now, has respondents right to possess the subject portion of petitioners property expired or terminated? Let us therefore examine respondents basis for occupying the same.
It is undisputed that petitioner expressly authorized respondents o occupy portion of her property on which their house may be built. Thus "it is my desire that Mr. and Mrs. Diosdado M. Pernes may build their house
therein and stay as long as they like." From this statement, it seems that petitioner had given the respondents the usufructuary rights over the portion that may be occupied by the house that the latter would build, the
duration of which being dependent on how long respondents would like to occupy the property. While petitioner had already demanded from the respondents the surrender of the premises, this Court is of the opinion
that the usufructuary rights of respondents had not been terminated by the said demand considering the clear statement of petitioner that she is allowing respondents to occupy portion of her land as long as the latter
want to. Considering that respondents still want to occupy the premises, petitioner clearly cannot eject respondents. 12
We disagree with the CAs conclusion of law on the matter. The term or period of the usufruct originally specified provides only one of the bases for the right of a usufructuary to hold and retain possession of the thing
given in usufruct. There are other modes or instances whereby the usufruct shall be considered terminated or extinguished. For sure, the Civil Code enumerates such other modes of extinguishment:
ART. 603. Usufruct is extinguished:
(1) By the death of the usufructuary, unless a contrary intention clearly appears;
(2) By expiration of the period for which it was constituted, or by the fulfillment of any resolutory condition provided in the title creating the usufruct;
(3) By merger of the usufruct and ownership in the same person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person constituting the usufruct;
(7) By prescription. (Emphasis supplied.)
The document executed by the petitioner dated July 21, 1986 constitutes the title creating, and sets forth the conditions of, the usufruct. Paragraph #3 thereof states "[T]hat anyone of my kins may enjoy the privilege to
stay therein and may avail the use thereof. Provided, however, that the same is not inimical to the purpose thereof" (Emphasis supplied). What may be inimical to the purpose constituting the usufruct may be gleaned
from the preceding paragraph wherein petitioner made it abundantly clear "that anybody of my kins who wishes to stay on the aforementioned property should maintain an atmosphere of cooperation, live in harmony
and must avoid bickering with one another." That the maintenance of a peaceful and harmonious relations between and among kin constitutes an indispensable condition for the continuance of the usufruct is clearly
deduced from the succeeding Paragraph #4 where petitioner stated "[T]hat anyone of my kins who cannot conform with the wishes of the undersigned may exercise the freedom to look for his own." In fine, the

occurrence of any of the following: the loss of the atmosphere of cooperation, the bickering or the cessation of harmonious relationship between/among kin constitutes a resolutory condition which, by express wish of
the petitioner, extinguishes the usufruct.
From the pleadings submitted by the parties, it is indubitable that there were indeed facts and circumstances whereby the subject usufruct may be deemed terminated or extinguished by the occurrence of the resolutory
conditions provided for in the title creating the usufruct, namely, the document adverted to which the petitioner executed on July 21, 1986.
As aptly pointed out by the petitioner in her Memorandum, respondents own evidence before the MTCC indicated that the relations between the parties "have deteriorated to almost an irretrievable level." 13 There is no
doubt then that what impelled petitioner to file complaints before the local barangay lupon, the Office of the Ombudsman for Mindanao, and this instant complaint for unlawful detainer before the MTCC is that she
could not live peacefully and harmoniously with the Pernes family and vice versa.
Thus, the Court rules that the continuing animosity between the petitioner and the Pernes family and the violence and humiliation she was made to endure, despite her advanced age and frail condition, are enough
factual bases to consider the usufruct as having been terminated.
To reiterate, the relationship between the petitioner and respondents respecting the property in question is one of owner and usufructuary. Accordingly, respondents claim for reimbursement of the improvements they
introduced on the property during the effectivity of the usufruct should be governed by applicable statutory provisions and principles on usufruct. In this regard, we cite with approval what Justice Edgardo Paras wrote
on the matter:
If the builder is a usufructuary, his rights will be governed by Arts. 579 and 580. In case like this, the terms of the contract and the pertinent provisions of law should govern (3 Manresa 215-216; se also Montinola vs.
Bantug, 71 Phil. 449). 14 (Emphasis ours.)
By express provision of law, respondents, as usufructuary, do not have the right to reimbursement for the improvements they may have introduced on the property. We quote Articles 579 and 580 of the Civil Code:
Art. 579. The usufructuary may make on the property held in usufruct such useful improvements or expenses for mere pleasure as he may deem proper, provided he does not alter its form or substance; but he shall have
no right to be indemnified therefor. He may, however, remove such improvements, should it be possible to do so without damage to the property. (Emphasis supplied.)
Art. 580. The usufructuary may set off the improvements he may have made on the property against any damage to the same.
Given the foregoing perspective, respondents will have to be ordered to vacate the premises without any right of reimbursement. If the rule on reimbursement or indemnity were otherwise, then the usufructuary might,
as an author pointed out, improve the owner out of his property. 15 The respondents may, however, remove or destroy the improvements they may have introduced thereon without damaging the petitioners property.
Out of the generosity of her heart, the petitioner has allowed the respondent spouses to use and enjoy the fruits of her property for quite a long period of time. They opted, however, to repay a noble gesture with
unkindness. At the end of the day, therefore, they really cannot begrudge their aunt for putting an end to their right of usufruct. The disposition herein arrived is not only legal and called for by the law and facts of the
case. It is also right.
WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the CA are REVERSED and SET ASIDE. Accordingly, the decision of the MTCC is REINSTATED with MODIFICATION that
all of respondents counterclaims are dismissed, including their claims for reimbursement of useful and necessary expenses.
No pronouncement as to costs.
SO ORDERED.

THIRD DIVISION

[G.R. No. 107132. October 8, 1999]

MAXIMA HEMEDES, petitioner, vs. THE HONORABLE COURT OF APPEALS, DOMINIUM REALTY AND CONSTRUCTION CORPORATION, ENRIQUE D. HEMEDES, and R & B
INSURANCE CORPORATION, respondents.

[G.R. No. 108472. October 8, 1999]

R & B INSURANCE CORPORATION, petitioner, vs. THE HONORABLE COURT OF APPEALS DOMINIUM REALTY AND CONSTRUCTION CORPORATION, ENRIQUE D. HEMEDES
and MAXIMA HEMEDES, respondents.
DECISION
GONZAGA_REYES,

J.:

Assailed in these petitions for review on certiorari is the decision[1] of the eleventh division of the Court of Appeals in CA-G.R. CV No. 22010 promulgated on September 11, 1992 affirming in toto the decision of
Branch 24 of the Regional Trial Court of Laguna in Civil Case No. B-1766 dated February 22, 1989,[2] and the resolution dated December 29, 1992 denying petitioner R & B Insurance Corporations (R & B Insurance)
motion for reconsideration. As the factual antecedents and issues are the same, we shall decide the petitions jointly.
The instant controversy involves a question of ownership over an unregistered parcel of land, identified as Lot No. 6, plan Psu-111331, with an area of 21,773 square meters, situated in Sala, Cabuyao, Laguna. It
was originally owned by the late Jose Hemedes, father of Maxima Hemedes and Enrique D. Hemedes. On March 22, 1947 Jose Hemedes executed a document entitled Donation Inter Vivos With Resolutory
Conditions[3] whereby he conveyed ownership over the subject land, together with all its improvements, in favor of his third wife, Justa Kauapin, subject to the following resolutory conditions:
(a) Upon the death or remarriage of the DONEE, the title to the property donated shall revert to any of the children, or their heirs, of the DONOR expressly designated by the DONEE in a public document conveying
the property to the latter; or
(b) In absence of such an express designation made by the DONEE before her death or remarriage contained in a public instrument as above provided, the title to the property shall automatically revert to the legal heirs
of the DONOR in common.
Pursuant to the first condition abovementioned, Justa Kausapin executed on September 27, 1960 a Deed of Conveyance of Unregistered Real Property by Reversion [4] conveying to Maxima Hemedes the
subject property under the following terms That the said parcel of land was donated unto me by the said Jose Hemedes, my deceased husband, in a deed of DONATION INTER VIVOS WITH RESOLUTORY CONDITIONS executed by the donor in my
favor, and duly accepted by me on March 22, 1947, before Notary Public Luis Bella in Cabuyao, Laguna;
That the donation is subject to the resolutory conditions appearing in the said deed of DONATION INTER VIVOS WITH RESOLUTORY CONDITIONS, as follows:
(a) Upon the death or remarriage of the DONEE, the title to the property donated shall revert to any of the children, or their heirs, of the DONOR expressly designated by the DONEE in a public document
conveying the property to the latter; or

(b) In absence of such an express designation made by the DONEE before her death or remarriage contained in a public instrument as above provided, the title to the property shall automatically revert to the legal heirs
of the DONOR in common.
That, wherefore, in virtue of the deed of donation above mentioned and in the exercise of my right and privilege under the terms of the first resolutory condition therein contained and hereinabove reproduced, and for
and in consideration of my love and affection, I do hereby by these presents convey, transfer, and deed unto my designee, MAXIMA HEMEDES, of legal age, married to RAUL RODRIGUEZ, Filipino and resident of
No. 15 Acacia Road, Quezon City, who is one of the children and heirs of my donor, JOSE HEMEDES, the ownership of, and title to the property hereinabove described, and all rights and interests therein by
reversion under the first resolutory condition in the above deed of donation; Except the possession and enjoyment of the said property which shall remain vested in me during my lifetime, or widowhood and which
upon my death or remarriage shall also automatically revert to, and be transferred to my designee, Maxima Hemedes.
Maxima Hemedes, through her counsel, filed an application for registration and confirmation of title over the subject unregistered land. Subsequently, Original Certificate of Title (OCT) No. (0-941) 0-198[5] was
issued in the name of Maxima Hemedes married to Raul Rodriguez by the Registry of Deeds of Laguna on June 8, 1962, with the annotation that Justa Kausapin shall have the usufructuary rights over the parcel of land
herein described during her lifetime or widowhood.
It is claimed by R & B Insurance that on June 2, 1964, Maxima Hemedes and her husband Raul Rodriguez constituted a real estate mortgage over the subject property in its favor to serve as security for a loan
which they obtained in the amount of P6,000.00. On February 22, 1968, R & B Insurance extrajudicially foreclosed the mortgage since Maxima Hemedes failed to pay the loan even after it became due on August 2,
1964. The land was sold at a public auction on May 3, 1968 with R & B Insurance as the highest bidder and a certificate of sale was issued by the sheriff in its favor. Since Maxima Hemedes failed to redeem the
property within the redemption period, R & B Insurance executed an Affidavit of Consolidation dated March 29, 1974 and on May 21, 1975 the Register of Deeds of Laguna cancelled OCT No. (0-941) 0-198 and issued
Transfer Certificate of Title (TCT) No. 41985 in the name of R & B Insurance. The annotation of usufruct in favor of Justa Kausapin was maintained in the new title. [6]
Despite the earlier conveyance of the subject land in favor of Maxima Hemedes, Justa Kausapin executed a Kasunduan on May 27, 1971 whereby she transferred the same land to her stepson Enrique D.
Hemedes, pursuant to the resolutory condition in the deed of donation executed in her favor by her late husband Jose Hemedes. Enrique D. Hemedes obtained two declarations of real property - in 1972, and again, in
1974, when the assessed value of the property was raised. Also, he has been paying the realty taxes on the property from the time Justa Kausapin conveyed the property to him in 1971 until 1979. In the cadastral survey
of Cabuyao, Laguna conducted from September 8, 1974 to October 10, 1974, the property was assigned Cadastral No. 2990, Cad. 455-D, Cabuyao Cadastre, in the name of Enrique Hemedes. Enrique Hemedes is also
the named owner of the property in the records of the Ministry of Agrarian Reform office at Calamba, Laguna.
On February 28, 1979, Enriques D. Hemedes sold the property to Dominium Realty and Construction Corporation (Dominium). On April 10, 1981, Justa Kausapin executed an affidavit affirming the
conveyance of the subject property in favor of Enrique D. Hemedes as embodied in the Kasunduan dated May 27, 1971, and at the same time denying the conveyance made to Maxima Hemedes.
On May 14, 1981, Dominium leased the property to its sister corporation Asia Brewery, Inc. (Asia Brewery) who, even before the signing of the contract of lease, constructed two warehouses made of steel and
asbestos costing about P10,000,000.00 each. Upon learning of Asia Brewerys constructions upon the subject property, R & B Insurance sent it a letter on March 16, 1981 informing the former of its ownership of the
property as evidenced by TCT No. 41985 issued in its favor and of its right to appropriate the constructions since Asia Brewery is a builder in bad faith. On March 27, 1981, a conference was held between R & B
Insurance and Asia Brewery but they failed to arrive at an amicable settlement.
On May 8, 1981, Maxima Hemedes also wrote a letter addressed to Asia Brewery wherein she asserted that she is the rightful owner of the subject property by virtue of OCT No. (0-941) 0-198 and that, as such,
she has the right to appropriate Asia Brewerys constructions, to demand its demolition, or to compel Asia Brewery to purchase the land. In another letter of the same date addressed to R & B Insurance, Maxima
Hemedes denied the execution of any real estate mortgage in favor of the latter.
On August 27, 1981, Dominium and Enrique D. Hemedes filed a complaint[7] with the Court of First Instance of Binan, Laguna for the annulment of TCT No. 41985 issued in favor of R & B Insurance and/or
the reconveyance to Dominium of the subject property. Specifically, the complaint alleged that Dominium was the absolute owner of the subject property by virtue of the February 28, 1979 deed of sale executed by
Enrique D. Hemedes, who in turn obtained ownership of the land from Justa Kausapin, as evidenced by the Kasunduan dated May 27, 1971. The plaintiffs asserted that Justa Kausapin never transferred the land to
Maxima Hemedes and that Enrique D. Hemedes had no knowledge of the registration proceedings initiated by Maxima Hemedes.
After considering the merits of the case, the trial court rendered judgment on February 22, 1989 in favor of plaintiffs Dominium and Enrique D. Hemedes, the dispositive portion of which states
WHEREFORE, judgment is hereby rendered:
(a) Declaring Transfer Certificate of Title No. 41985 of the Register of Deeds of Laguna null and void and ineffective;
(b) Declaring Dominium Realty and Construction Corporation the absolute owner and possessor of the parcel of land described in paragraph 3 of the complaint;
(c) Ordering the defendants and all persons acting for and/or under them to respect such ownership and possession of Dominium Realty and Construction Corporation and to forever desist from asserting
adverse claims thereon nor disturbing such ownership and possession; and
(d) Directing the Register of Deeds of Laguna to cancel said Transfer Certificate of Title No. 41985 in the name of R & B Insurance Corporation, and in lieu thereof, issue a new transfer certificate of title in
the name of Dominium Realty and Construction Corporation. No pronouncement as to costs and attorneys fees.[8]

Both R & B Insurance and Maxima Hemedes appealed from the trial courts decision. On September 11, 1992 the Court of Appeals affirmed the assailed decision in toto and on December 29, 1992, it denied R &
B Insurances motion for reconsideration. Thus, Maxima Hemedes and R & B Insurance filed their respective petitions for review with this Court on November 3, 1992 and February 22, 1993, respectively.
In G.R. No. 107132[9], petitioner Maxima Hemedes makes the following assignment of errors as regards public respondents ruling
I
RESPONDENT COURT OF APPEALS GRAVELY ERRED IN APPLYING ARTICLE 1332 OF THE NEW CIVIL CODE IN DECLARING AS SPURIOUS THE DEED OF CONVEYANCE OF
UNREGISTERED REAL PROPERTY BY REVERSION EXECUTED BY JUSTA KAUSAPIN IN FAVOR OF PETITIONER MAXIMA HEMEDES.
II
RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT FINDING AS VOID AND OF NO LEGAL EFFECT THE KASUNDUAN DATED 27 MAY 1971 EXECUTED BY JUSTA
KAUSAPIN IN FAVOR OF RESPONDENT ENRIQUE HEMEDES AND THE SALE OF THE SUBJECT PROPERTY BY RESPONDENT ENRIQUE HEMEDES IN FAVOR OF RESPONDENT
DOMINIUM REALTY AND CONSTRUCTION CORPORATION.
III
RESPONDENT COURT OF APPEALS GRAVELY ERRED IN NOT FINDING RESPONDENTS ENRIQUE AND DOMINIUM IN BAD FAITH.
IV
RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT ORIGINAL CERTIFICATE OF TITLE NO. (0-941) 0-198 ISSUED IN THE NAME OF PETITIONER MAXIMA
HEMEDES NULL AND VOID.
V
RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING THAT NO LOAN WAS OBTAINED BY PETITIONER MAXIMA HEMEDES FROM RESPONDENT R & B INSURANCE
CORPORATION.
VI
RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING THAT NO REAL ESTATE MORTGAGE OVER THE SUBJECT PROPERTY WAS EXECUTED BY PETITIONER MAXIMA
HEMEDES IN FAVOR OF RESPONDENT R & B INSURANCE CORPORATION.
VII
RESPONDENT COURT OF APPEALS ERRED IN NOT FINDING THAT THE VALID TITLE COVERING THE SUBJECT PROPERTY IS THE ORIGINAL CERTIFICATE OF TITLE NO. (0-941) 0-198
IN THE NAME OF PETITIONER MAXIMA HEMEDES AND NOT THE TRANSFER CERTIFICATE OF TITLE (TCT) NO. 41985 IN THE NAME OF R & B INSURANCE CORPORATION.[10]
Meanwhile, in G.R. No. 108472[11], petitioner R & B Insurance assigns almost the same errors, except with regards to the real estate mortgage allegedly executed by Maxima Hemedes in its favor. Specifically, R &
B Insurance alleges that:
I
RESPONDENT COURT ERRONEOUSLY ERRED IN APPLYING ARTICLE 1332 OF THE CIVIL CODE.
II

RESPONDENT COURT SERIOUSLY ERRED IN GIVING CREDENCE ON (sic) THE KASUNDUAN BY AND BETWEEN JUSTA KAUSAPIN AND ENRIQUE NOTWITHSTANDING THE FACT
THAT JUSTA KAUSAPIN BY WAY OF A DEED OF CONVEYANCE OF UNREGISTERED REAL PROPERTY BY REVERSION CEDED THE SUBJECT PROPERTY TO MAXIMA SOME ELEVEN
(11) YEARS EARLIER.
III
RESPONDENT COURT SERIOUSLY ERRED IN GIVING CREDENCE ON (sic) THE AFFIDAVIT OF REPUDIATION OF JUSTA KAUSAPIN NOTWITHSTANDING THE FACT THAT SHE IS A
BIAS (sic) WITNESS AND EXECUTED THE SAME SOME TWENTY-ONE (21) YEARS AFTER THE EXECUTION OF THE DEED OF CONVEYANCE IN FAVOR OF MAXIMA.
IV
RESPONDENT COURT SERIOUSLY ERRED IN NOT FINDING THAT THE COMPLAINT OF ENRIQUE AND DOMINIUM HAS PRESCRIBED AND/OR THAT ENRIQUE AND DOMINIUM
WERE GUILTY OF LACHES.
V
RESPONDENT COURT SERIOUSLY ERRED IN FINDING R & B AS A MORTGAGEE NOT IN GOOD FAITH.
VI
RESPONDENT COURT SERIOUSLY ERRED IN NOT GRANTING THE DAMAGES PRAYED FOR BY R & B IN ITS COUNTERCLAIM AND CROSSCLAIM. [12]
The primary issue to be resolved in these consolidated petitions is which of the two conveyances by Justa Kausapin, the first in favor of Maxima Hemedes and the second in favor of Enrique D. Hemedes,
effectively transferred ownership over the subject land.
The Register of Deeds of Laguna issued OCT No. (0-941) 0-198 in favor of Maxima Hemedes on the strength of the Deed of Conveyance of Unregistered Real Property by Reversion executed by Justa
Kausapin. Public respondent upheld the trial courts finding that such deed is sham and spurious and has no evidentiary value under the law upon which claimant Maxima Hemedes may anchor a valid claim of
ownership over the property. In ruling thus, it gave credence to the April 10, 1981 affidavit executed by Justa Kausapin repudiating such deed of conveyance in favor of Maxima Hemedes and affirming the authenticity
of the Kasunduan in favor of Enrique D. Hemedes. Also, it considered as pivotal the fact that the deed of conveyance in favor of Maxima Hemedes was in English and that it was not explained to Justa Kausapin,
although she could not read nor understand English; thus, Maxima Hemedes failed to discharge her burden, pursuant to Article 1332 of the Civil Code, to show that the terms thereof were fully explained to Justa
Kausapin. Public respondent concluded by holding that the registration of the property on the strength of the spurious deed of conveyance is null and void and does not confer any right of ownership upon Maxima
Hemedes. [13]
Maxima Hemedes argues that Justa Kausapins affidavit should not be given any credence since she is obviously a biased witness as it has been shown that she is dependent upon Enrique D. Hemedes for her daily
subsistence, and she was most probably influenced by Enrique D. Hemedes to execute the Kasunduan in his favor. She also refutes the applicability of article 1332. It is her contention that for such a provision to be
applicable, there must be a party seeking to enforce a contract; however, she is not enforcing the Deed of Conveyance of Unregistered Real Property by Reversion as her basis in claiming ownership, but rather her
claim is anchored upon OCT No. (0-941) 0-198 issued in her name, which document can stand independently from the deed of conveyance. Also, there exist various circumstances which show that Justa Kausapin did
in fact execute and understand the deed of conveyance in favor of Maxima Hemedes. First, the Donation Intervivos With Resolutory Conditions executed by Jose Hemedes in favor of Justa Kausapin was also in
English, but she never alleged that she did not understand such document. Secondly, Justa Kausapin failed to prove that it was not her thumbmark on the deed of conveyance in favor of Maxima Hemedes and in fact,
both Enrique D. Hemedes and Dominium objected to the request of Maxima Hemedes counsel to obtain a specimen thumbmark of Justa Kausapin.[14]
Public respondents finding that the Deed of Conveyance of Unregistered Real Property By Reversion executed by Justa Kausapin in favor of Maxima Hemedes is spurious is not supported by the factual
findings in this case.. It is grounded upon the mere denial of the same by Justa Kausapin. A party to a contract cannot just evade compliance with his contractual obligations by the simple expedient of denying the
execution of such contract. If, after a perfect and binding contract has been executed between the parties, it occurs to one of them to allege some defect therein as a reason for annulling it, the alleged defect must be
conclusively proven, since the validity and fulfillment of contracts cannot be left to the will of one of the contracting parties.[15]
Although a comparison of Justa Kausapins thumbmark with the thumbmark affixed upon the deed of conveyance would have easily cleared any doubts as to whether or not the deed was forged, the records do
not show that such evidence was introduced by private respondents and the lower court decisions do not make mention of any comparison having been made. [16] It is a legal presumption that evidence willfully
suppressed would be adverse if produced.[17] The failure of private respondents to refute the due execution of the deed of conveyance by making a comparison with Justa Kausapins thumbmark necessarily leads one to
conclude that she did in fact affix her thumbmark upon the deed of donation in favor of her stepdaughter.
Moreover, public respondents reliance upon Justa Kausapins repudiation of the deed of conveyance is misplaced for there are strong indications that she is a biased witness. The trial court found that Justa
Kausapin was dependent upon Enrique D. Hemedes for financial assistance. [18] Justa Kausapins own testimony attests to this fact -

Atty. Conchu:
Q: Aling Justa, can you tell the Honorable Court why you donated this particular property to Enrique Hemedes?
A: Because I was in serious condition and he was the one supporting me financially.
Q: As of today, Aling Justa are you continuing to receive any assistance from Enrique Hemedes?
A: Yes Sir.
(TSN pp. 19 and 23, November 17, 1981)[19]
Even Enrique Hemedes admitted that Justa Kausapin was dependent upon him for financial support. The transcripts state as follows:
Atty. Mora:
Now you said that Justa Kausapin has been receiving from you advances for food, medicine & other personal or family needs?
E. Hemedes:
A: Yes.
Q: Was this already the practice at the time this Kasunduan was executed?
A: No that was increased, no, no, after this document.
xxx xx

xxx

Q: And because of these accommodations that you have given to Justa Kausapin; Justa Kausapin has in turn treated you very well because shes very grateful for that, is it not?
A: I think thats human nature.
Q: Answer me categorically, Mr. Hemedes shes very grateful?
A: Yes she might be grateful but not very grateful.
(TSN, p. 34, June 15, 1984)[20]
A witness is said to be biased when his relation to the cause or to the parties is such that he has an incentive to exaggerate or give false color to his statements, or to suppress or to pervert the truth, or to state
what is false.[21] At the time the present case was filed in the trial court in 1981, Justa Kausapin was already 80 years old, suffering from worsening physical infirmities and completely dependent upon her stepson Enrique
D. Hemedes for support. It is apparent that Enrique D. Hemedes could easily have influenced his aging stepmother to donate the subject property to him. Public respondent should not have given credence to a
witness that was obviously biased and partial to the cause of private respondents. Although it is a well-established rule that the matter of credibility lies within the province of the trial court, such rule does not apply
when the witness credibility has been put in serious doubt, such as when there appears on the record some fact or circumstance of weight and influence, which has been overlooked or the significance of which has been
misinterpreted.[22]
Finally, public respondent was in error when it sustained the trial courts decision to nullify the Deed of Conveyance of Unregistered Real Property by Reversion for failure of Maxima Hemedes to comply with
article 1332 of the Civil Code, which states:
When one of the parties is unable to read, or if the contract is in a language not understood by him, and mistake or fraud is alleged, the person enforcing the contract must show that the terms thereof have been fully
explained to the former.
Article 1332 was intended for the protection of a party to a contract who is at a disadvantage due to his illiteracy, ignorance, mental weakness or other handicap.[23] This article contemplates a situation wherein a
contract has been entered into, but the consent of one of the parties is vitiated by mistake or fraud committed by the other contracting party.[24] This is apparent from the ordering of the provisions under Book IV, Title
II, Chapter 2, section 1 of the Civil Code, from which article 1332 is taken. Article 1330 states that A contract where consent is given through mistake, violence, intimidation, undue influence, or fraud is voidable.
This is immediately followed by provisions explaining what constitutes mistake, violence, intimidation, undue influence, or fraud sufficient to vitiate consent.[25] In order that mistake may invalidate consent, it should
refer to the substance of the thing which is the object of the contract, or to those conditions which have principally moved one or both parties to enter into the contract. [26] Fraud, on the other hand, is present when,

through insidious words or machinations of one of the contracting parties, the other is induced to enter into a contract which, without them, he would not have agreed to.[27] Clearly, article 1332 assumes that the consent
of the contracting party imputing the mistake or fraud was given, although vitiated, and does not cover a situation where there is a complete absence of consent.
In this case, Justa Kausapin disclaims any knowledge of the Deed of Conveyance of Unregistered Real Property by Reversion in favor of Maxima Hemedes. In fact, she asserts that it was only during the
hearing conducted on December 7, 1981 before the trial court that she first caught a glimpse of the deed of conveyance and thus, she could not have possibly affixed her thumbmark thereto. [28] It is private respondents
own allegations which render article 1332 inapplicable for it is useless to determine whether or not Justa Kausapin was induced to execute said deed of conveyance by means of fraud employed by Maxima Hemedes,
who allegedly took advantage of the fact that the former could not understand English, when Justa Kausapin denies even having seen the document before the present case was initiated in 1981.
It has been held by this Court that mere preponderance of evidence is not sufficient to overthrow a certificate of a notary public to the effect that the grantor executed a certain document and acknowledged
the fact of its execution before him. To accomplish this result, the evidence must be so clear, strong and convincing as to exclude all reasonable controversy as to the falsity of the certificate, and when the evidence is
conflicting, the certificate will be upheld.[29] In the present case, we hold that private respondents have failed to produce clear, strong, and convincing evidence to overcome the positive value of the Deed of
Conveyance of Unregistered Real Property by Reversion a notarized document. The mere denial of its execution by the donor will not suffice for the purpose.
In upholding the deed of conveyance in favor of Maxima Hemedes, we must concomitantly rule that Enrique D. Hemedes and his transferee, Dominium, did not acquire any rights over the subject
property. Justa Kausapin sought to transfer to her stepson exactly what she had earlier transferred to Maxima Hemedes the ownership of the subject property pursuant to the first condition stipulated in the deed of
donation executed by her husband. Thus, the donation in favor of Enrique D. Hemedes is null and void for the purported object thereof did not exist at the time of the transfer, having already been transferred to his
sister.[30] Similarly, the sale of the subject property by Enrique D. Hemedes to Dominium is also a nullity for the latter cannot acquire more rights than its predecessor-in-interest and is definitely not an innocent
purchaser for value since Enrique D. Hemedes did not present any certificate of title upon which it relied.
The declarations of real property by Enrique D. Hemedes, his payment of realty taxes, and his being designated as owner of the subject property in the cadastral survey of Cabuyao, Laguna and in the records of
the Ministry of Agrarian Reform office in Calamba, Laguna cannot defeat a certificate of title, which is an absolute and indefeasible evidence of ownership of the property in favor of the person whose name appears
therein.[31] Particularly, with regard to tax declarations and tax receipts, this Court has held on several occasions that the same do not by themselves conclusively prove title to land.[32]
We come now to the question of whether or not R & B Insurance should be considered an innocent purchaser of the land in question. At the outset, we note that both the trial court and appellate court found
that Maxima Hemedes did in fact execute a mortgage over the subject property in favor of R & B Insurance. This finding shall not be disturbed because, as we stated earlier, it is a rule that the factual findings of the trial
court, especially when affirmed by the Court of Appeals, are entitled to respect, and should not be disturbed on appeal. [33]
In holding that R & B Insurance is not a mortgagee in good faith, public respondent stated that the fact that the certificate of title of the subject property indicates upon its face that the same is subject to an
encumbrance, i.e. usufructuary rights in favor of Justa Kausapin during her lifetime or widowhood, should have prompted R & B Insurance to ...investigate further the circumstances behind this encumbrance on the
land in dispute, but which it failed to do. Also, public respondent considered against R & B Insurance the fact that it made it appear in the mortgage contract that the land was free from all liens, charges, taxes and
encumbrances.[34]
R & B Insurance alleges that, contrary to public respondents ruling, the presence of an encumbrance on the certificate of title is not reason for the purchaser or a prospective mortgagee to look beyond the face of
the certificate of title. The owner of a parcel of land may still sell the same even though such land is subject to a usufruct; the buyers title over the property will simply be restricted by the rights of the
usufructuary. Thus, R & B Insurance accepted the mortgage subject to the usufructuary rights of Justa Kausapin. Furthermore, even assuming that R & B Insurance was legally obliged to go beyond the title and search
for any hidden defect or inchoate right which could defeat its right thereto, it would not have discovered anything since the mortgage was entered into in 1964, while the Kasunduan conveying the land to Enrique D.
Hemedes was only entered into in 1971 and the affidavit repudiating the deed of conveyance in favor of Maxima Hemedes was executed by Justa Kausapin in 1981.[35]
We sustain petitioner R & B Insurances claim that it is entitled to the protection of a mortgagee in good faith.
It is a well-established principle that every person dealing with registered land may safely rely on the correctness of the certificate of title issued and the law will in no way oblige him to go behind the certificate to
determine the condition of the property.[36] An innocent purchaser for value[37] is one who buys the property of another without notice that some other person has a right to or interest in such property and pays a full
and fair price for the same at the time of such purchase or before he has notice of the claim of another person. [38]
The annotation of usufructuary rights in favor of Justa Kausapin upon Maxima Hemedes OCT dose not impose upon R & B Insurance the obligation to investigate the validity of its mortgagors title. Usufruct
gives a right to enjoy the property of another with the obligation of preserving its form and substance. [39] The usufructuary is entitled to all the natural, industrial and civil fruits of the property [40] and may personally
enjoy the thing in usufruct, lease it to another, or alienate his right of usufruct, even by a gratuitous title, but all the contracts he may enter into as such usufructuary shall terminate upon the expiration of the usufruct.[41]
Clearly, only the jus utendi and jus fruendi over the property is transferred to the usufructuary. [42] The owner of the property maintains the jus disponendi or the power to alienate, encumber, transform, and even
destroy the same.[43] This right is embodied in the Civil Code, which provides that the owner of property the usufruct of which is held by another, may alienate it, although he cannot alter the propertys form or
substance, or do anything which may be prejudicial to the usufructuary. [44]
There is no doubt that the owner may validly mortgage the property in favor of a third person and the law provides that, in such a case, the usufructuary shall not be obliged to pay the debt of the mortgagor, and
should the immovable be attached or sold judicially for the payment of the debt, the owner shall be liable to the usufructuary for whatever the latter may lose by reason thereof. [45]
Based on the foregoing, the annotation of usufructuary rights in favor of Justa Kausapin is not sufficient cause to require R & B Insurance to investigate Maxima Hemedes title, contrary to public respondents
ruling, for the reason that Maxima Hemedes ownership over the property remained unimpaired despite such encumbrance. R & B Insurance had a right to rely on the certificate of title and was not in bad faith in
accepting the property as a security for the loan it extended to Maxima Hemedes.

Even assuming in gratia argumenti that R & B Insurance was obligated to look beyond the certificate of title and investigate the title of its mortgagor, still, it would not have discovered any better rights in favor of
private respondents. Enrique D. Hemedes and Dominium base their claims to the property upon the Kasunduan allegedly executed by Justa Kausapin in favor of Enrique Hemedes. As we have already stated earlier,
such contract is a nullity as its subject matter was inexistent. Also, the land was mortgaged to R & B Insurance as early as 1964, while the Kasunduan was executed only in 1971 and the affidavit of Justa Kausapin
affirming the conveyance in favor of Enrique D. Hemedes was executed in 1981. Thus, even if R & B Insurance investigated the title of Maxima Hemedes, it would not have discovered any adverse claim to the land in
derogation of its mortgagors title. We reiterate that at no point in time could private respondents establish any rights or maintain any claim over the land.
It is a well-settled principle that where innocent third persons rely upon the correctness of a certificate of title and acquire rights over the property, the court cannot just disregard such rights. Otherwise, public
confidence in the certificate of title, and ultimately, the Torrens system, would be impaired for everyone dealing with registered property would still have to inquire at every instance whether the title has been regularly or
irregularly issued.[46] Being an innocent mortgagee for value, R & B Insurance validly acquired ownership over the property, subject only to the usufructuary rights of Justa Kausapin thereto, as this encumbrance was
properly annotated upon its certificate of title.
The factual findings of the trial court, particularly when affirmed by the appellate court, carry great weight and are entitled to respect on appeal, except under certain circumstances.[47] One such circumstance that
would compel the Court to review the factual findings of the lower courts is where the lower courts manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would
justify a different conclusion.[48] Also, it is axiomatic that the drawing of the proper legal conclusions from such factual findings are within the peculiar province of this Court.[49]
As regards R & B Insurances prayer that Dominium be ordered to demolish the warehouses or that it be declared the owner thereof since the same were built in bad faith, we note that such warehouses were
constructed by Asia Brewery, not by Dominium. However, despite its being a necessary party in the present case, the lower courts never acquired jurisdiction over Asia Brewery, whether as a plaintiff or defendant, and
their respective decisions did not pass upon the constructions made upon the subject property. Courts acquire jurisdiction over a party plaintiff upon the filing of the complaint, while jurisdiction over the person of a
party defendant is acquired upon the service of summons in the manner required by law or by his voluntary appearance. As a rule, if a defendant has not been summoned, the court acquires no jurisdiction over his
person, and any personal judgment rendered against such defendant is null and void.[50] In the present case, since Asia Brewery is a necessary party that was not joined in the action, any judgment rendered in this case
shall be without prejudice to its rights.[51]
As to its claim for moral damages, we hold that R & B Insurance is not entitled to the same for it has not alleged nor proven the factual basis for the same. Neither is it entitled to exemplary damages, which may
only be awarded if the claimant is entitled to moral, temperate, liquidated or compensatory damages. [52] R & B Insurances claim for attorneys fees must also fail. The award of attorneys fees is the exception rather than
the rule and counsels fees are not to be awarded every time a party wins a suit. Its award pursuant to article 2208 of the Civil Code demands factual, legal and equitable justification and cannot be left to speculation and
conjecture.[53] Under the circumstances prevailing in the instant case, there is no factual or legal basis for an award of attorneys fees.
WHEREFORE, the assailed decision of public respondent and its resolution dated February 22, 1989 are REVERSED. We uphold petitioner R & B Insurances assertion of ownership over the property in
dispute, as evidenced by TCT No. 41985, subject to the usufructuary rights of Justa Kausapin, which encumbrance has been properly annotated upon the said certificate of title. No pronouncement as to costs.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-1592

September 20, 1949

In the estate of E.M. Bachrach, deceased. MARY MCDONALD BACHRACH, petitioner-appellee,

vs.
SOPHIE M. SEIFERT, ELISA ELIANOFF, AND THE HEIRS OF THE DECEASED GINDA M. SKUNDINA,oppositors-appellants.
Ross, Selph. Carrascoso and Janda for appellants.
Delgado, Dizon and Flores for appellee.
MONTEMAYOR, J.:

In testate proceedings, civil case No. 51955 of the Court of First Instance of Manila, the will of E. M. Bachrach, who died on September 28, 1937, provided for the distribution of the considerable property which he had
left. The provisions of the will which are important in this case are contained in the sixth and eighth paragraphs which read as follows:
Sixth: It is my will and do herewith bequeath and devise to my beloved wife Mary McDonald Bachrach for life all the fruits and usufruct of the remainder of all my estate after payment of the legacies,
bequests and gifts provided for above; and she may enjoy such usufruct and use or spend such fruits as she may in any manner wish.
Eighth: It is my wish that upon the death of my beloved wife, Mary McDonald Bachrach, all my estate, personal, real and otherwise, and all the fruits and usufruct thereof which during her life pertained to
her, shall be divided as follows:
One-half thereof shall be given to such charitable hospitals in the Philippines as she may designate; in case she fails to designate, then said sum shall be given to the Chief Executive of these Islands who shall
distribute it, share and share alike to all charitable hospitals in the Philippines excluding those belonging to the governments of the Philippines or of the United States;
One-half thereof shall be divided, share and share alike by and between my legal heirs, to the exclusion of my brothers.
The widow Mary McDonald Bachrach as administratrix and executrix had been administering the property left by her deceased husband and enjoying the usufruct thereof. The other heirs Sophie M. Seifert, Ginda M.
Skundina, Elisa Elianoff and Annie Bachrach Levine on September 14, 1940, filed a petition, agreed to by usufructuary Mary McDonald Bachrach, and the Solicitor General representing the Government of the
Philippines, asking that the administratrix "be authorized to pay your petitioners from and after July 1, 1940, and until they receive their share of the estate left by the deceased E.M. Bachrach upon the death of his
widow, a monthly allowance of P500, P250, P250, and P250, respectively, and the additional sum of P3,000 to the heir Sophie M. Seifert, who is in poor health, the said allowances to be deducted from your petitioners'
share of the estate of the deceased E.M. Bachrach upon the death of the widow." Acting upon the said petition, the Court of First Instance of Manila issued an order dated October 2, 1940 granting the petition in the
following words:
Petition granted; and the administratrix and usufructuary Mary McDonald Bachrach is hereby authorized and instructed forthwith to pay to the said Sophie M. Seifert, Ginda M. Skundina, Elisa Elianoff and
Annie Bachrach Levine a monthly allowance of Five Hundred (P500) Pesos; Two Hundred Fifty (P250) Pesos; Two Hundred Fifty (P250) Pesos, and Two Hundred Fifty (P250) Pesos, respectively, beginning
July 1, 1940, and until the said heirs receive their share of the estate left by the deceased E. M. Bachrach upon the death of his widow, and the additional sum of Three Thousand (P3,000) Pesos to the heir
Sophie M. Seifert.
From July 1, 1940 to December 31, 1941, the administratrix made the payments as ordered, having paid the total amount of P40,250. Payments during the Japanese occupation which would have amounted to P32,500,
was suspended. Then payments were resumed from August, 1945 to January, 1947. Thereafter, the executrix declined to make further payments. The heirs petitioned the lower court for a writ of execution, ordering the
administratrix to pay the allowances for February, 1947 and those in arrears for the period comprising from January 1, 1942 to July 31, 1945. This petition was denied and the heirs filed a petition for mandamus in the
Supreme Court under G. R. No. L-1379. 1 The petition for mandamus was granted by this Court and the lower court was ordered to proceed in the execution of its order of October 2, 1940 and to issue the proper writ.
In the meantime, the administratrix Mary McDonald Bachrach, filed in the same case No. 51955 in the Court of First Instance of Manila a petition on February 19, 1947, recommending the liquidation of the assets of
the estate of her deceased husband destined for charity because due to the havoc and miseries brought about by the last war, the charitable institutions to be benefited badly needed the property bequeathed to them
under the will.
In another petition by the same administratrix Mary McDonald filed on February 18, 1947, she alleged that under the order of the court of October 2, 1940, she had already paid to the heirs P40,250; that besides that
amount the heirs were demanding the amount of P32,500 representing the allowances that had accrued during the Japanese occupation while the estate was financially and economically prostrate; that the allowances
paid to said heirs were taken from the fruits and income of the estate which belong exclusively to her as a usufructuary, that is to say, that the allowances paid to the heirs were advances from her personal funds; and that
unless the heirs gave sufficient security for the protection of the administratrix, the of the property corresponding to the heirs which consists mainly of shares of stock, when sold later, may not be sufficient to
reimburse her estate after her death for the allowances made or given to the heirs from her personal funds. On the basis of said allegations, the administratrix prayed the court that she be relieved from the obligation to
pay the heirs the monthly allowances ordered by the court in its order of October 2, 1940, and in the alternative, in the event that the court ordered her to continue the payments of said allowances, that she be
authorized to sell as much of the assets of the destined for the instituted heirs as may be necessary to enable her to continue the payment of said allowances.
Evidently, acting upon these two petitioners, the lower court issued its order dated February 27, 1947, expressing its opinion that pending the determination of the proceedings, it would be advisable to sell the property
destined for charities but also the one-half adjudicated to the instituted heirs, the proceeds thereof, to be distributed accordingly later on. Acting upon a motion for reconsideration filed on behalf of the heirs, the lower
court denied said motion, justifying its order sought to be reconsidered with the allegation that the case had been pending for several years: that the sale of said properties included in the testate proceedings and
distribution of the proceeds of the sale to the beneficiaries was one way of winding up said proceedings and the beneficiaries would be benefited in that they would receive their shares earlier. The heirs appealed from
that order of February 27, 1947, and the order denying their motion for reconsideration. That appeal under G.R. No. L-1592 of this Court, is now the case under consideration.
Our first impression was that the appellants had no valid reason for objecting to the sale of the of the estate adjudicated to them because in that way they would receive their shares earlier; furthermore, that the
administratrix was warranted in asking for the sale of said of the property adjudicated to the heirs or as much thereof as was sufficient to reimburse for the allowances being paid by her to the heirs from her personal

funds or from the fruit of the said which, as a usufructuary, be longed to her. Upon a closer scrutiny of the record however, not only of this case (G. R. No. L-1592) but also of G. R. No. L-1379 of which we take
judicial notice, for which reason, said last case was cited and referred to for purposes of background so as to give a clear understanding of the facts in this case, we find that the allowance being paid to the heirs are really
not paid from the personal funds of the administratrix but from the cash corresponding to the of the estate adjudicated to the heirs, which cash, is deposited in the bank. According to the decision of the Supreme
Court in the mandamuscase (G. R. No. L-1379) promulgated on December 19, 1947, the administratrix had in her possession the sum of P351,116.91 which has already been adjudicated to and belongs, although pro
indiviso, to the heirs of the deceased E. M. Bachrach and that furthermore, the monthly allowances being paid to the heirs or due them should be paid from this sum and not from the personal funds of the administratrix
Mary McDonald Bachrach. Furthermore, the very order of the lower court of October 2, 1940, authorizing the administratrix to pay to the heirs the monthly allowances already mentioned, stipulated in its fourth
paragraph that said allowances should be taken from the properties to be turned over to the heirs of the deceased E. M. Bachrach and shall be deducted from the share of said heirs upon the death of the widow..
In the opinion of this Court, the cash in the possession of the administratrix corresponding to the of the estate adjudicated to the heirs is sufficient for the monthly allowances being paid to the heirs and that there is
no necessity for the sale of the of the estate corresponding to them. The main objection to the heirs to the sale of of the estate adjudicated to them, which besides the cash already mentioned, consist mostly of
shares of stock, is that said shares if sold now may not command a good price and that furthermore said heirs prefer to keep said shares intact as long as there is no real necessity for their sale. Of course, once said cash
in the hands of the administratrix, corresponding to the heirs is exhausted because of the payment of the allowances made to the heirs, some other arrangements might be necessary. The administratrix would then have a
right and reason to refuse the payment of said allowances from her said personal funds or from the fruits of the estate, which as a usufructuary, belong to her during her lifetime. But, until that point is reached, we see
no valid reason for ordering the sale of the of the estate belonging to the heirs over their objection.
In view of the foregoing, the order appealed from, insofar as it directs the sale of the one-half share of the estate destined and adjudicated to the instituted heirs, is hereby reversed. With costs.
Moran, C.J., Ozaeta, Paras, Feria, Bengzon, Tuason, Reyes and Torres, JJ., concur.
Padilla, concurs in the result.

EN BANC
[G.R. No. 45534. April 27, 1939.]
JOSEFA RIZAL MERCADO, ET AL., Plaintiffs-Appellants, v. ALFREDO HIDALGO REAL,Defendant-Appellee.
Jose Perez Cardenas for Appellants.
Jose C. Abreu for Appellee.
SYLLABUS
1. PAYMENT OF LAND TAX; USUFRUCTUARY; NAKED OWNER. Pursuant the provision of article 505 of the Civil Code, the tax; directs burdens the capital, that is, the real value of the property and should
be paid by the owner (One Lengco v. Monroy, G. R. No. 19411, July 18, 1923). It is contended, however, that under the second paragraph of the aforesaid article, if the usufructuary should pay the tax, he would be
entitled to reimbursement for the amount thereof only upon the inspiration of the usufruct, and the usufruct being still afoot, it is premature for the plaintiffs as usufructuarics who advanced the payment of the tax, to
bring the action for the recovery of What they paid. There is, however, no basis for this reasoning. The plaintiffs did not pay the tea. They objected to this payment. They did not consent to the deduction thereof from
their player in the products, and much less to the application thereof to this payment which they believe they are not bound to make. In fact they did not make the payment; the naked owners were the ones who made it
without their consent and with money belonging to them as their share of the fruits coming to them in their capacity as usufructuaries.
DECISION
AVANCEA, C.J. :
The properties left by the deceased Paciano Rizal y Mercado belonged, in usufruct, to nine heirs and, in naked ownership, to seven others. The plaintiffs are two of the nine usufructuaries and the defendant is one of the
naked owners.
In 1932, 1933 and 1934, the amount of P6,503.80 was paid for the tax of these lands. Of this amount the naked owners made the plaintiffs pay P1,445.29, or P722.64 each, representing one-ninth of the taxes paid during
the aforesaid years. As the plaintiffs were not agreeable to this payment, by cause they were mere usufructuaries, and they contend that the duty devolves upon the naked owners, this amount was deducted from the
products corresponding to them and applied to the payment of land tax.

The plaintiffs alleged that, the naked owners being the ones under a duty to pay the tax for the lands, they should recover the amount which was deducted from their share of the fruits and applied, against their will, to
the payment of the tax. The naked owners, with the exception of the defendant, agreed with this contention and paid to each of the plaintiffs the sum of P206.47, which is one-seventh of the P1,445.29 deducted from
the products of the land corresponding to the plaintiffs.
The present action was brought to compel the defendant to pay also to the plaintiffs the amount of P206.47.
A demurrer was interposed to the complaint for failure to allege facts sufficient to constitute a cause of action. The court sustained the demurrer on the ground that the action is premature under article 505 of the Civil
Code providing:jgc:chanrobles.com.ph
"Any taxes which may be imposed directly upon the capital, during the usufruct, shall be chargeable to the owner.
"If paid by the latter, the usufructuary shall pay him the proper interest on any sums he may have disbursed by reason thereof; if the usufructuary should advance the amounts of such taxes he shall recover them upon
the expiration of the usufruct."cralaw virtua1aw library
This ruling of the trial court is erroneous.
Pursuant to the aforequoted provision, the tax directly burdens the capital, that is, the real value of the property and should be paid by the owner (Ong Lengco v. Monroy, G. R. No. 19411, July 18, 1923). It is
contended, however, that under the second paragraph of the aforequoted article, if the usufructuary should pay the tax, he would be entitled to reimbursement for the amount thereof only upon the expiration of the
usufruct, and the usufruct being still afoot, it is premature for the plaintiffs, as usufructuaries who advanced the payment of the tax, to bring the action for the recovery of what they paid. There is, however, no basis for
this reasoning. The plaintiffs did not pay the tax. They objected to this payment. They did not consent to the deduction thereof from their share in the products, and much less to the application thereof to this payment
which they believe they are not bound to make. In fact they did not make the payment; the naked owners were the ones who made it without their consent and with money belonging to them as their share of the fruits
coming to them in their capacity as usufructuaries.
The plaintiffs, in claiming the amount of P206.47, do not rely on paragraph 2 of article 505 of the Civil Code above quoted, for having paid the tax on the lands, but on the first paragraph thereof because it is their
contention that, as usufructuaries, they are not the ones called upon to make this payment.
Reversing the resolutions of the trial court excepted to, the demurrer interposed to the complaint is overruled, and it is ordered that the case be remanded to the court of origin so that it may act in accordance with this
decision and go forward with the case until it is finally decided, without special pronouncement as to the costs in this instance. So ordered.
Villa-Real, Imperial, Diaz, Concepcion and Moran, JJ., concur.

N BANC
[G.R. No. L-9023. November 13, 1956.]
BISLIG BAY LUMBER COMPANY. INC., Plaintiff-Appellee, vs. THE PROVINCIAL GOVERNMENT OF SURIGAO, Defendant-Appellant.

DECISION
BAUTISTA ANGELO, J.:
Bislig Bay Lumber Co., Inc. is a timber concessionaire of a portion of public forest located in the provinces of Agusan and Surigao. With a view to developing and exploiting its concession, the company constructed at
its expense a road from the barrio Mangagoy into the area of the concession in Surigao, with a length of approximately 5.3 kilometers, a portion of which, or about 580 linear meters, is on a private property of the
company. The expenses incurred by the company in the construction of said road amounted to P113,370, upon which the provincial assessor of Surigao assessed a tax in the amount of P669.33.
Of this amount, the sum of P595.92 corresponds to the road constructed within the area of the concession. This was paid under protest. Later, the company filed an action for its refund in the Court of First Instance of
Manila alleging that the road is not subject to tax. Defendant filed a motion to dismiss on two grounds (1) that the venue is improperly laid, and (2) that the complaint states no cause of action; chan
roblesvirtualawlibrarybut this motion was denied. Thereafter, Defendant filed its answer invoking the same defenses it set up in its motions to dismiss. In the meantime, Congress approved Republic Act No. 1125 creating
the Court of Tax Appeals, whereupon Plaintiff moved that the case be forwarded to the latter court as required by said Act. This motion however, was denied and, after due trial, the court rendered decision
ordering Defendant to refund to Plaintiffthe amount claimed in the complaint. This is an appeal from said decision.
The first error assigned refers to the jurisdiction of the lower court. It is contended that since the present case involves an assessment of land tax the determination of which comes under the exclusive jurisdiction of the
Court of Tax Appeals under Republic Act No. 1125, the lower court erred in assuming jurisdiction over the case.

It is true that under section 22 of said Act the only cases that are required to be certified and remanded to the Court of Tax Appeals which upon its approval are pending determination before a court of first instance are
apparently confined to those involving disputed assessment of internal revenue taxes or custom duties, and the present case admittedly refers to an assessment of land tax, but it does not mean that because of that
apparent omission or oversight the instant case should not be remanded to the Court of Tax Appeals, for in interpreting the context of the section above adverted to we should not ignore section 7 of the same act
which defines the extent and scope of the jurisdiction of said court. As we have held in a recent case, section 22 of Republic Act No. 1125 should be interpreted in such a manner as to make it harmonize with section 7
of the same Act and that the primordial purpose behind the approval of said Act by Congress is to give to the Court of Tax Appeals exclusive appellate jurisdiction over all tax, customs, and real estate assessment cases
through out the Philippines and to hear and decide them as soon as possible (Ollada vs. The Court of Tax Appeals, 99 Phil., 604). Considering this interpretation of the law, it logically follows that the lower court did
not act properly in denying the motion to remand the instant case to the Court of Tax Appeals.
Considering, however, that it would be more expeditious to decide this case now than to remand it to the Court of Tax Appeals because, even if this course is taken, it may ultimately be appealed to this court, we will
now proceed to discuss the case on the merits.
The Tax in question has been assessed under section 2 of Commonwealth Act No. 470 which provides:chanroblesvirtuallawlibrary
SEC. 2. Incidence of real property tax. Except in chartered cities, there shall be levied, assessed, and collected, an annual ad- valorem tax on real property, including land, buildings, machinery, and other
improvements not hereinafter specifically exempted.
Note that said section authorizes the levy of real tax not only on lands, buildings, or machinery that may be erected thereon, but also on any other improvements, and considering the road constructed by Appellee on the
timber concession granted to it as an improvement, Appellantassessed the tax now in dispute upon the authority of the above provision of the law.
It is the theory of Appellant that, inasmuch as the road was constructed by Appellee for its own use and benefit it is subject to real tax even if it was constructed on a public land. On the other hand, it is the theory
of Appellee that said road is exempt from real tax because (1) the road belongs to the national government by right of accession, (2) the road cannot be removed or separated from the land on which it is constructed and
so it is part and parcel of the public land, and (3), according to the evidence, the road was built not only for the use and benefit of Appelleebut also of the public in general.
We are inclined to uphold the theory of Appellee. In the first place, it cannot be disputed that the ownership of the road that was constructed by Appellee belongs to the government by right accession not only because it is
inherently incorporated or attached to the timber land leased toAppellee but also because upon the expiration of the concession, said road would ultimately pass to the national government (Articles 440 and 445, new
Civil Code; chan roblesvirtualawlibraryTabotabo vs. Molero, 22 Phil., 418). In the second place, while the road was constructed by Appellee primarily for its use and benefit, the privilege is not exclusive, for, under the
lease contract entered into by theAppellee and the government and by public in by the general. Thus, under said lease contract,Appellee cannot prevent the use of portions, of the concession for homesteading purposes
(clause 12). It is also in duty bound to allow the free use of forest products within the concession for the personal use of individuals residing in or within the vicinity of the land (clause 13). The government has reserved
the right to set aside communal forest for the use of the inhabitants of the region, and to set forest reserves for public uses (clause 14). It can also grant licenses covering any portion of the territory for the cutting and
extraction of timber to be used in public works, for mining purposes, or for the construction of railway lines (clause 15). And, if it so desires, it can provide for logging railroad, cable ways timber chute os slide,
telephone lines, pumping stations log landings, and other rights of way for the use of forest licensees, concessionaires, permittees, or other lessees (clause 26). In other words, the government has practically reserved the
rights to use the road to promote its varied activities. Since, as above shown, the road in question cannot be considered as an improvement which belongs to Appellee, although in part is for its benefit, it is clear that the
same cannot be the subject of assessment within the meaning of section 2 of Commonwealth Act No. 470.
We are not oblivious of the fact that the present assessment was made by Appellant on the strength of an opinion rendered by the Secretary of Justice, but we find that the same is predicated on authorities which are not
in point, for they refer to improvements that belong to the lessee although constructed on lands belonging to the government. It is well settled that a real tax, being a burden upon the capital, should be paid by the
owner of the land and not by a usufructuary (Mercado vs. Rizal, 67 Phil., 608; chan roblesvirtualawlibraryArticle 597, new Civil Code). Appellee is but a partial usufructuary of the road in question.
Wherefore, the decision appealed from is affirmed, without costs.
Paras, C.J., Padilla, Montemayor, Labrador, Reyes, J. B. L., Endencia and Felix. JJ., concur.

EN BANC
[G.R. No. L-28034. February 27, 1971.]
THE BOARD OF ASSESSMENT APPEALS OF ZAMBOANGA DEL SUR and PLACIDO L. LUMBAY, in his capacity as Provincial Assessor of Zamboanga del Sur, Petitioners, v. SAMAR
MINING COMPANY, INC. and THE COURT OF TAX APPEALS, Respondents.
Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de Castro and Solicitor Lolita O. Gal-lang, for Petitioners.
Pacifico de Ocampo and Sofronio G. Sayo for respondent Samar Mining Company, Inc.
DECISION

ZALDIVAR, J.:
Appeal from the decision of the Court of Tax Appeals, in its CTA Case No. 1705, declaring respondent Samar Mining Company, Inc. (hereinafter referred to as Samar, for short) exempt from paying the real property
tax assessed against it by the Provincial Assessor of Zamboanga del Sur.
There is no dispute as to the facts of this case. Samar is a domestic corporation engaged in the mining industry. As the mining claims and the mill of Samar are located inland and at a great distance from the loading
point or pier site, it decided to construct a gravel road as a convenient means of hauling its ores from the mine site at Buug to the pier area at Pamintayan, Zamboanga del Sur; that as an initial step in the construction of
a 42-kilometer road which would traverse public lands Samar, in 1958 and 1959, filed with the Bureau of Lands and the Bureau of Forestry miscellaneous lease applications for a road right of way on lands under the
jurisdiction of said bureaus where the proposed road would traverse; that having been given temporary permit to occupy and use the lands applied for by it, said respondent constructed a road thereon, known as the
Samico road; that although the gravel road was finished in 1959, and had since then been used by the respondent in hauling its iron from its mine site to the pier area, and that its lease applications were approved on
October 7, 1965, the execution of the corresponding lease contracts were held in abeyance even up to the time this case was brought to the Court of Tax Appeals. 1
On June 5, 1964, Samar received a letter from the Provincial Assessor of Zamboanga del Sur assessing the 13.8 kilometer road 2 constructed by it for real estate tax purposes in the total sum of P1,117,900.00. On July
14, 1964, Samar appealed to the Board of Assessment Appeals of Zamboanga del Sur, (hereinafter referred to as Board, for short), contesting the validity of the assessment upon the ground that the road having been
constructed entirely on a public land cannot be considered an improvement subject to tax within the meaning of section 2 of Commonwealth Act 470, and invoking further the decision of this Court in the case of Bislig
Bay Lumber Company, Inc. v. The Provincial Government of Surigao, G.R. No. L-9023, promulgated on November 13, 1956. On February 10, 1965, after the parties had submitted a stipulation of facts, Samar received
a resolution of the Board, dated December 22, 1964, affirming the validity of the assessment made by the Provincial Assessor of Zamboanga del Sur under tax declaration No. 3340, but holding in abeyance its
enforceability until the lease contracts were duly executed.
On February 16, 1965, Samar moved to reconsider the resolution of the Board, praying for the cancellation of tax declaration No. 3340, and on August 3, 1965, Samar received Resolution No. 13 not only denying its
motion for reconsideration but modifying the Boards previous resolution of December 22, 1964 declaring the assessment immediately enforceable, and that the taxes to be paid by Samar should accrue or commence
with the year 1959. When its second motion for reconsideration was again denied by the Board, Samar elevated the case to the Court of Tax Appeals.
The jurisdiction of the Court of Tax Appeals to take cognizance of the case was assailed by herein petitioners (the Board and the Provincial Assessor of Zamboanga del Sur) due to the failure of Samar to first pay the
realty tax imposed upon it before interposing the appeal, and prayed that the resolution of the Board appealed from be affirmed. On June 28, 1967, the Court of Tax Appeals ruled that it had jurisdiction to entertain the
appeal and then reversed the resolution of the Board. The Court of Tax Appeals ruled that since the road is constructed on public lands such that it is an integral part of the land and not an independent improvement
thereon, and that upon the termination of the lease the road as an improvement will automatically be owned by the national government, Samar should be exempt from paying the real estate tax assessed against it.
Dissatisfied with the decision of the Court of Tax Appeals, petitioners Board and Placido L. Lumbay, as Provincial Assessor of Zamboanga del Sur, interposed the present petition for review before this Court.
The issue to be resolved in the present appeal is whether or not respondent Samar should pay realty tax on the assessed value of the road it constructed on alienable or disposable public lands that are leased to it by the
government.
Petitioners maintain that the road is an improvement and, therefore, taxable under Section 2 of the Assessment Law (Commonwealth Act No. 470) which provides as follows:jgc:chanrobles.com.ph
"Sec. 2. Incidence of real property tax. Except in chartered cities, there shall be levied, assessed, and collected, an annual, ad valorem tax on real property including land, buildings, machinery, and other improvements
not hereinafter specifically exempted."cralaw virtua1aw library
There is no question that the road constructed by respondent Samar on the public lands leased to it by the government is an improvement. But as to whether the same is taxable under the aforequoted provision of the
Assessment Law, this question has already been answered in the negative by this Court. In the case of Bislig Bay Lumber Co., Inc. v. Provincial Government of Surigao, 100 Phil. 303, where a similar issue was raised as
to whether the timber concessionaire should be required to pay realty tax for the road it constructed at its own expense within the territory of the lumber concession granted to it, this Court, after citing Section 2 of
Commonwealth Act 470, held:jgc:chanrobles.com.ph
"Note that said section authorizes the levy of real tax not only on lands, buildings, or machinery that may be erected thereon, but also on any other improvements, and considering the road constructed by appellee on
the timber concession granted to it as an improvement, appellant assessed the tax now in dispute upon the authority of the above provision of the law.
"It is the theory of appellant that, inasmuch as the road was constructed by appellee for its own use and benefit it is subject to real tax even if it was constructed on a public land. On the other hand, it is the theory of
appellee that said road exempt from real tax because (1) the road belongs to the national government by right of accession, (2) the road belongs to the be removed or separated from the land on which it is constructed
and so it is part and parcel of the public land, and (3), according to the evidence, the road was built not only for the use and benefit of appellee but also of the public in general.
"We are inclined to uphold the theory of appellee. In the first place, it cannot be disputed that the ownership of the road that was constructed by appellee belongs to the government by right of accession not only
because it is inherently incorporated or attached to the timber land leased to appellee but also because upon the expiration of the concession, said road would ultimately pass to the national government (Articles 440 and
445, new Civil Code; Tobatabo v. Molero, 22 Phil., 418). In the second place, while the road was constructed by appellee primarily for its use and benefit, the privilege is not exclusive, for, under the lease contract
entered into by the appellee and the government, its use can also be availed of by the employees of the government and by the public in general. . . . In other words, the government has practically reserved the rights to

use the road to promote its varied activities. Since, as above shown, the road in question cannot be considered as an improvement which belongs to appellee, although in part is for its benefit, it is clear that the same
cannot be the subject of assessment within the meaning of section 2 of Commonwealth Act No. 470.
"We are not oblivious of the fact that the present assessment was made by appellant on the strength of an opinion rendered by the Secretary of Justice, but we find that the same is predicated on authorities which are
not in point, for they refer to improvements that belong to the lessees although constructed on lands belonging to the government. It is well settled that a real tax, being a burden upon the capital, should be paid by the
owner of the land and not by a usufructuary (Mercado v. Rizal, 67 Phil., 608; Article 597, new Civil Code). Appellee is but a partial usufructuary of the road in question."cralaw virtua1aw library
Again, in the case of Municipality of Cotabato, Et. Al. v. Santos, Et Al., 105 Phil. 963, this Court ruled that the lessee who introduced improvements consisting of dikes, gates and guard-houses on swamp lands leased to
him by the Bureau of Fisheries, in converting the swamps into fishponds, is exempt from payment of realty taxes on those improvements. This Court held:jgc:chanrobles.com.ph
"We however believe that the assessment on the improvements introduced by defendant on the fishpond has included more than what is authorized by law. The improvements as assessed consist of dikes, gates and
guard-houses and bodegas totals P6,850.00 which appellants are not now questioning, but they dispute the assessment on the dikes and gates in this wise: After the swamps were leased to appellants, the latter cleared
the swamps and built dikes, by pushing the soil to form these dikes in the same way that paddies are built on lands intended for the cultivation of palay, the only difference being that dikes used in fishponds are relatively
much larger than the dikes used in ricelands. We believe this contention to be correct, because those dikes can really be considered as integral parts of the fishponds and not as independent improvements. They cannot
be taxed under the assessment law. The assessment, therefore, with regard to improvements should be modified excluding the dikes and gates."cralaw virtua1aw library
It is contended by petitioners that the ruling in the Bislig case is not applicable in the present case because if the concessionaire in the Bislig case was exempt from paying the realty tax it was because the road in that case
was constructed on a timberland or on an indisposable public land, while in the instant case what is being taxed is 13.8 kilometer portion of the road traversing alienable public lands. This contention has no merit. The
pronouncement in the Bislig case contains no hint whatsoever that the road was not subject to tax because it was constructed on inalienable public lands. What is emphasized in the lease is that the improvement is
exempt from taxation because it is an integral part of the public land on which it is constructed and the improvement is the property of the government by right of accession. Under Section 3(a) of the Assessment Law
(Com. Act 470), all properties owned by the government, without any distinction, are exempt from taxation.
It is also contended by petitioners that the Court of Tax Appeals can not take cognizance of the appeal of Samar from the resolution of the Board assessing realty tax on the road in question, because Samar had not first
paid under protest the realty tax assessed against it as required under the provisions of Section 54 of the Assessment Law (Com. Act 470), which partly reads as follows:jgc:chanrobles.com.ph
"SEC. 54. Restriction upon power of Court to impeach tax. No court shall entertain any suit assailing the validity of a tax assessment under this Act until the taxpayer shall have paid under protest the taxes assessed
against him, no shall any court declare any tax invalid by reason . . ."cralaw virtua1aw library
The extent and scope of the jurisdiction of the Court of Tax Appeals regarding matters related to assessment or real property taxes are provided for in Section 7, paragraph (3) and Section 11 of Republic Act No. 1125,
which partly read as follows:jgc:chanrobles.com.ph
"SEC. 7. Jurisdiction. The Court of Tax Appeals shall exercise exclusive appellate jurisdiction to review by appeal, as herein provided
x

(3) Decisions of provincial or city Board of Assessment Appeals in cases involving the assessment and taxation of real property or other matters arising under the Assessment Law, including rules and regulations relative
thereto."cralaw virtua1aw library
"SEC. 11. Who may appeal; effect of appeal. Any person, association or corporation adversely affected by a decision or ruling of . . . any provincial or city Board of Assessment Appeals may file an appeal in the Court
of Tax Appeals within thirty days after the receipt of such decision or ruling."cralaw virtua1aw library
In this connection the Court of Tax Appeals, in the decision appealed from, said:jgc:chanrobles.com.ph
"Prior to the enactment of Republic Act No. 1125, all civil actions involving the legality of any tax, impost or assessment were under the jurisdiction of the Court of First Instance (Sec. 44, Republic Act No. 296). It is
clear, therefore, that before the creation of the Court of Tax Appeals all cases involving the legality of assessments for real property taxes, as well as the refund thereof, were properly brought and taken cognizance by
the said court. However, with the passage by Congress and the approval by the President of Republic Act No. 1125, the jurisdiction over cases involving the validity of realty tax assessment were transferred from the
Court of First Instance to the Court of Tax Appeals (See Sec. 22, Rep. Act No. 1125). The only exception to the grant of exclusive appellate jurisdiction to the Tax Court relates to cases involving the refund of real
property taxes which remained with the Court of First Instance (See of Cabanatuan, Et. Al. v. Gatmaitan, Et Al., G.R. No. L-19129, February 28, 1963).
"A critical and analytical study of Section 7 of Republic Act No. 1125, in relation to subsections (1), (2) and (3) thereof, will readily show that it was the intention of Congress to lodge in the Court of Tax Appeals the
exclusive appellate jurisdiction over cases involving the legality of real property tax assessment. as distinguished from cases involving the refund of real property taxes. To require the taxpayer, as contended by
respondents, to pay first the disputed real property tax before he can file an appeal assailing the legality and validity of the realty tax assessment will render nugatory the appellate jurisdictional power of the Court of Tax
Appeals as envisioned in Section 7 (3), in relation to Section 11, of Republic Act No. 1125. If we follow the contention of respondents to its logical conclusion, we cannot conceive of a case involving the legality and
validity of real property tax assessment, decided by the Board of Assessment Appeals, which can be appealed to the Court of Tax Appeals, The position taken by respondents is, therefore, in conflict with the
Explanatory Note contained in House Bill No. 175, submitted during the First Session, Third Congress of the Republic of the Philippines, and the last paragraph of Section 21 of Republic Act No. 1125 which provide

as follows:chanrob1es virtual 1aw library

SEC. 21. General provisions.
x

Any law or part of law, or any executive order, rule or regulation or part thereof, inconsistent with the provisions of this Act is hereby repealed.
"Accordingly, we hold that this Court can entertain and give due course to petitioners appeal assailing the legality and validity of the real property tax assessment here in question without paying first the disputed real
property tax as required by Section 54 of the Assessment Law."cralaw virtua1aw library
We agree with the foregoing view of the Court of Tax Appeals. It should be noted that what is involved in the present case is simply an assessment of realty tax, as fixed by the Provincial Assessor of Zamboanga del Sur,
which was disputed by Samar before the Board of Assessment Appeals of said province. There was no demand yet for payment of the realty tax. In fact the letter of Provincial Assessor, of June 5, 1964, notifying Samar
of the assessment, states as follows:jgc:chanrobles.com.ph
"Should you find the same to be not in accordance with law or its valuation to be not satisfactory, you may appeal this assessment under Section 17 of Commonwealth Act 470 to the Board of Assessment Appeals,
through the Municipal Treasurer of Buug, Zamboanga del Sur, within 60 days from the date of your receipt hereof." 3
Accordingly Samar appealed to the Board questioning the validity of the assessment. The Board rendered a resolution over-ruling the contention of Samar that the assessment was illegal. Then Samar availed of its right
to appeal from the decision of the Board to the Court of Tax Appeals as provided in Section 11 of Republic Act 1125. Section 11 does not require that before an appeal from the decision of the Board of Assessment
Appeals can be brought to the Court of Tax Appeals it must first be shown that the party disputing the assessment had paid under protest the realty tax assessed. In the absence of such a requirement under the law, all
that is necessary for a party aggrieved by the decision of the Board of Assessment Appeals is to file his notice of appeal to the Court of Tax Appeals within 30 days after receipt of the decision of the Board of
Assessment Appeals, as provided in Section 11 of Republic Act 1125.
This Court, in the case of City of Cabanatuan v. Gatmaitan, 4 said:jgc:chanrobles.com.ph
". . . if the real estate tax has already been paid it is futile for a taxpayer to take the matter to the City Board of Assessment Appeals for the jurisdiction of that body is merely confined to the determination of the
reasonableness of the assessment or taxation of the property and is not extended to the authority of requiring the refund of the tax unlike cases involving assessment of internal revenue taxes. In the circumstances, we
hold that this case comes under the jurisdiction of the proper court of first instance it involving the refund of a real estate tax which does not come under the appellate jurisdiction of the Court of Tax Appeals."cralaw
virtua1aw library
From the aforequoted portion of the decision of this Court, We gather that the only question that may be brought before the City or Provincial Board of Assessment Appeals is the question which relates to the
reasonableness or legality of the realty tax that is assessed against a taxpayer. Such being the case, it would be unjust to require the realty owner to first pay the tax, that he precisely questions, before he can lodge an
appeal to the Court of Tax Appeals. We believe that it is not the intendment of the law that in questioning before the Court of Tax Appeals the validity or reasonableness of the assessment approved by the Board of
Assessment Appeals the taxpayer should first pay the questioned tax. It is Our view that in so far as appeals from the decision or resolution of the Board of Assessment Appeals, Section 54 of Commonwealth Act 470
does not apply, and said section can be considered as impliedly repealed by Sections 7, 11 and 21 of Republic Act 1125.
IN VIEW OF THE FOREGOING, the decision of the Court of Tax Appeals, appealed from, is affirmed, without pronouncement as to costs. It is so ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Castro, Fernando, Teehankee, Villamor and Makasiar, JJ., concur.
EASTMENTS AND SERVITUDES

THIRD DIVISION

[G.R. No. 124699. July 31, 2003]

BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF APPEALS AND HEIRS OF MAGDALENO VALDEZ SR., respondents.
DECISION
CORONA, J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to annul and set aside the decision[1] dated November 17, 1995 of the Court of Appeals, Tenth Division, which reversed the
decision[2] dated November 27, 1991 of the Regional Trial Court of Cebu City, Branch IX, which ruled in favor of herein petitioner, Bogo-Medellin Milling Company, Inc. and dismissed herein private respondents'
complaint for payment of compensation and/or recovery of possession of real property and damages with application for restraining order or preliminary injunction; and its resolution dated March 2, 1996 denying
petitioner's motion for reconsideration.
The antecedent facts follow.
Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez, Angelina Valdez-Novabos, Teresita Argawanon-Mangubat and Daylinda Argawanon-Melendres (hereafter the heirs), purchased from
Feliciana Santillan, on December 9, 1935, a parcel of unregistered land covered by Tax Declaration No. 3935 with an area of one hectare, 34 ares and 16 centares, located in Barrio Dayhagon, Medellin, Cebu.[3] He took
possession of the property and declared it for tax purposes in his name. [4]
Prior to the sale, however, the entire length of the land from north to south was already traversed in the middle by railroad tracks owned by petitioner Bogo-Medellin Milling Co., Inc. (hereafter Bomedco). The
tracks were used for hauling sugar cane from the fields to petitioners sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents inherited the land. However, unknown to them, Bomedco was able to have the disputed middle lot which was occupied by the
railroad tracks placed in its name in the Cadastral Survey of Medellin, Cebu in 1965. The entire subject land was divided into three, namely, Cadastral Lot Nos. 953, 954 and 955. Lot Nos. 953 and 955 remained in the
name of private respondents. However, Lot No. 954, the narrow lot where the railroad tracks lay, was claimed by Bomedco as its own and was declared for tax purposes in its name. [5]
It was not until 1989 when private respondents discovered the aforementioned claim of Bomedco on inquiry with the Bureau of Lands. Through their lawyer, they immediately demanded the legal basis for
Bomedco's claim over Cadastral Lot No. 954 but their letter of inquiry addressed to petitioner went unheeded, as was their subsequent demand for payment of compensation for the use of the land.[6]
On June 8, 1989, respondent heirs filed a Complaint for Payment of Compensation and/or Recovery of Possession of Real Property and Damages with Application for Restraining Order/Preliminary
Injunction against Bomedco before the Regional Trial Court of Cebu. [7] Respondent heirs alleged that, before she sold the land to Valdez, Sr. in 1935, Santillan granted Bomedco, in 1929, a railroad right of way for a
period of 30 years. When Valdez, Sr. acquired the land, he respected the grant. The right of way expired sometime in 1959 but respondent heirs allowed Bomedco to continue using the land because one of them was
then an employee of the company.[8]
In support of the complaint, they presented an ancient document an original copy of the deed of sale written in Spanish and dated December 9, 1935[9] to evidence the sale of the land to Magdaleno Valdez,
Sr.; several original real estate tax receipts[10] including Real Property Tax Receipt No. 3935[11] dated 1922 in the name of Graciano de los Reyes, husband of Feliciana Santillan, and Real Property Tax Receipt No.
09491[12] dated 1963 in the name of Magdaleno Valdez, Sr. Magdaleno Valdez, Jr. also testified for the plaintiffs during the trial.
On the other hand, Bomedcos principal defense was that it was the owner and possessor of Cadastral Lot No. 954, having allegedly bought the same from Feliciana Santillan in 1929, prior to the sale of the
property by the latter to Magdaleno Valdez, Sr. in 1935. It also contended that plaintiffs claim was already barred by prescription and laches because of Bomedcos open and continuous possession of the property for
more than 50 years.
Bomedco submitted in evidence a Deed of Sale[13] dated March 18, 1929; seven real estate tax receipts[14] for the property covering the period from 1930 to 1985; a 1929 Survey Plan of private land for BogoMedellin Milling Company;[15] a Survey Notification Card;[16] Lot Data Computation for Lot No. 954;[17] a Cadastral Map for Medellin Cadastre[18] as well as the testimonies of Vicente Basmayor, Geodetic Engineer and
property custodian for Bomedco, and Rafaela A. Belleza, Geodetic Engineer and Chief of the Land Management Services of the DENR, Region VIII.
In its decision dated November 27, 1991, the trial court[19] rejected Bomedco's defense of ownership on the basis of a prior sale, citing that its evidence a xerox copy of the Deed of Sale dated March 18, 1929
was inadmissible and had no probative value. Not only was it not signed by the parties but defendant Bomedco also failed to present the original copy without valid reason pursuant to Section 4, Rule 130 of the Rules of
Court.[20]
Nonetheless, the trial court held that Bomedco had been in possession of Cadastral Lot No. 954 in good faith for more than 10 years, thus, it had already acquired ownership of the property through acquisitive
prescription under Article 620 of the Civil Code. It explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT easements can be acquired by prescription after ten (10) years. The apparent characteristic of the questioned property being used by defendant
as an easement is no longer at issue, because plaintiffs themselves had acknowledged that the existence of the railway tracks of defendant Bomedco was already known by the late Magdaleno Valdez, herein plaintiffs
predecessor-in-interest, before the late Magdaleno Valdez purchased in 1935 from the late Feliciana Santillan the land described in the Complaint where defendants railway tracks is traversing [sic] (TSN of February 5,
1991, pp. 7-8). As to the continuity of defendants use of the strip of land as easement is [sic] also manifest from the continuous and uninterrupted occupation of the questioned property from 1929 up to the date of the
filing of the instant Complaint. In view of the defendants UNINTERRUPTED possession of the strip of land for more than fifity (50) years, the Supreme Courts ruling in the case of Ronquillo, et al. v. Roco, et al.
(103 Phil 84) is not applicable. This is because in said case the easement in question was a strip of dirt road whose possession by the dominant estate occurs only everytime said dirt road was being used by the dominant

estate. Such fact would necessarily show that the easements possession by the dominant estate was never continuous. In the instant case however, there is clear continuity of defendants possession of the strip of land
it had been using as railway tracks. Because the railway tracks which defendant had constructed on the questioned strip of land had been CONTINUOUSLY occupying said easement. Thus, defendant Bomedcos
apparent and continuous possession of said strip of land in good faith for more than ten (10) years had made defendant owner of said strip of land traversed by its railway tracks. Because the railway tracks which
defendant had constructed on the questioned strip of land had been continuously occupying said easement [sic]. Thus, defendant Bomedcos apparent and continuous possession of said strip of land in good faith for
more than ten (10) years had made defendant owner of said strip of land traversed by its railway tracks.
Respondent heirs elevated the case to the Court of Appeals which found that Bomedco did not acquire ownership over the lot. It consequently reversed the trial court. In its decision dated November 17, 1995,
the appellate court held that Bomedco only acquired an easement of right of way by unopposed and continuous use of the land, but not ownership, under Article 620 of the Civil Code.
The appellate court further ruled that Bomedcos claim of a prior sale to it by Feliciana Santillan was untrue. Its possession being in bad faith, the applicable prescriptive period in order to acquire ownership over
the land was 30 years under Article 1137 of the Civil Code. Adverse possession of the property started only in 1965 when Bomedco registered its claim in the cadastral survey of Medellin. Since only 24 years from 1965
had elapsed when the heirs filed a complaint against Bomedco in 1989, Bomedcos possession of the land had not yet ripened into ownership.
And since there was no showing that respondent heirs or their predecessor-in-interest was ever paid compensation for the use of the land, the appellate court awarded compensation to them, to be computed from
the time of discovery of the adverse acts of Bomedco.
Its motion for reconsideration having been denied by the appellate court in its resolution dated March 22, 1996, Bomedco now interposes before us this present appeal by certiorari under Rule 45, assigning the
following errors:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REVERSED AND SET ASIDE THE TRIAL COURTS DECISION DISMISSING PRIVATE RESPONDENTS COMPLAINT.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT ORDERED THE PETITIONER TO PAY THE PRIVATE RESPONDENT THE REASONABLE VALUE OF LOT 954 AND
THE AMOUNT OF TEN THOUSAND (P10,000.00) PESOS AS REASONABLE ATTORNEYS FEES.
Petitioner Bomedco reiterates its claim of ownership of the land through extraordinary acquisitive prescription under Article 1137 of the Civil Code and laches to defeat the claim for compensation or recovery of possession
by respondent heirs. It also submits a third ground originally tendered by the trial court acquisition of the easement of right of way by prescription under Article 620 of the Civil Code.
Extraordinary Acquisitive Prescription
Under Art. 1137 of the Civil Code
Petitioners claim of ownership through extraordinary acquisitive prescription under Article 1137 of the Civil Code cannot be sustained.
There is no dispute that the controversial strip of land has been in the continuous possession of petitioner since 1929. But possession, to constitute the foundation of a prescriptive right, must be possession under
a claim of title, that is, it must be adverse.[21] Unless coupled with the element of hostility towards the true owner, possession, however long, will not confer title by prescription.[22]
After a careful review of the records, we are inclined to believe the version of respondent heirs that an easement of right of way was actually granted to petitioner for which reason the latter was able to occupy
Cadastral Lot No. 954. We cannot disregard the fact that, for the years 1930, 1937, 1949, 1962 and 1963, petitioner unequivocally declared the property to be a central railroad right of way or sugar central railroad
right of way in its real estate tax receipts when it could have declared it to be industrial land as it did for the years 1975 and 1985.[23] Instead of indicating ownershipof the lot, these receipts showed that all petitioner
had was possession by virtue of the right of way granted to it. Were it not so and petitioner really owned the land, petitioner would not have consistently used the phrases central railroad right of way and sugar central
railroad right of way in its tax declarations until 1963. Certainly an owner would have found no need for these phrases. A person cannot have an easement on his own land, since all the uses of an easement are fully
comprehended in his general right of ownership.[24]
While it is true that, together with a persons actual and adverse possession of the land, tax declarations constitute strong evidence of ownership of the land occupied by him,[25] this legal precept does not apply in
cases where the property is declared to be a mere easement of right of way.
An easement or servitude is a real right, constituted on the corporeal immovable property of another, by virtue of which the owner has to refrain from doing, or must allow someone to do, something on his
property, for the benefit of another thing or person. It exists only when the servient and dominant estates belong to two different owners. It gives the holder of the easement an incorporeal interest on the land but
grants no title thereto. Therefore, an acknowledgment of the easement is an admission that the property belongs to another. [26]
Having held the property by virtue of an easement, petitioner cannot now assert that its occupancy since 1929 was in the concept of an owner. Neither can it declare that the 30-year period of extraordinary
acquisitive prescription started from that year.

Petitioner, however, maintains that even if a servitude was merely imposed on the property in its favor, its possession immediately became adverse to the owner in the late 1950s when the grant was alleged by
respondent heirs to have expired. It stresses that, counting from the late 1950s (1959 as found by the trial court), the 30-year extraordinary acquisitive prescription had already set in by the time respondent heirs made a
claim against it in their letters dated March 1 and April 6, 1989.
We do not think so. The mere expiration of the period of easement in 1959 did not convert petitioners possession into an adverse one. Mere material possession of land is not adverse possession as against the
owner and is insufficient to vest title, unless such possession is accompanied by the intent to possess as an owner.[27] There should be a hostile use of such a nature and exercised under such circumstances as to manifest
and give notice that the possession is under a claim of right.
In the absence of an express grant by the owner, or conduct by petitioner sugar mill from which an adverse claim can be implied, its possession of the lot can only be presumed to have continued in the same
character as when it was acquired (that is, it possessed the land only by virtue of the original grant of the easement of right of way),[28] or was by mere license or tolerance of the owners (respondent heirs).[29] It is a
fundamental principle of law in this jurisdiction that acts of possessory character executed by virtue of license or tolerance of the owner, no matter how long, do not start the running of the period of prescription.[30]
After the grant of easement expired in 1959, petitioner never performed any act incompatible with the ownership of respondent heirs over Cadastral Lot No. 954. On the contrary, until 1963, petitioner continued
to declare the sugar central railroad right of way in its realty tax receipts, thereby doubtlessly conceding the ownership of respondent heirs. Respondents themselves were emphatic that they simply tolerated petitioners
continued use of Cadastral Lot No. 954 so as not to jeopardize the employment of one of their co-heirs in the sugar mill of petitioner.[31]
The only time petitioner assumed a legal position adverse to respondents was when it filed a claim over the property in 1965 during the cadastral survey of Medellin. Since then (1965) and until the filing of the complaint for
the recovery of the subject land before the RTC of Cebu in 1989, only 24 years had lapsed. Since the required 30-year extraordinary prescriptive period had not yet been complied with in 1989, petitioner never acquired
ownership of the subject land.
Laches
Neither can petitioner find refuge in the principle of laches. It is not just the lapse of time or delay that constitutes laches. The essence of laches is the failure or neglect, for an unreasonable and unexplained
length of time, to do that which, through due diligence, could or should have been done earlier, thus giving rise to a presumption that the party entitled to assert it had either abandoned or declined to assert it. [32]
Its essential elements are: (a) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation complained of; (b) delay in asserting complainants rights after he had knowledge of
defendants acts and after he has had the opportunity to sue; (c) lack of knowledge or notice by defendant that the complainant will assert the right on which he bases his suit; and (d) injury or prejudice to the defendant
in the event the relief is accorded to the complainant.[33]
The second element (which in turn has three aspects) is lacking in the case at bar. These aspects are: (a) knowledge of defendant's action, (b) opportunity to sue defendant after obtaining such knowledge and (c)
delay in the filing of such suit.[34]
Records show that respondent heirs only learned about petitioners claim on their property when they discovered the inscription for the cadastral survey in the records of the Bureau of Lands in 1989.
Respondents lost no time in demanding an explanation for said claim in their letters to the petitioner dated March 1, 1989 and April 6, 1989. When petitioner ignored them, they instituted their complaint before the
Regional Trial Court of Cebu City on June 8, 1989.
Petitioners reliance on Caro vs. Court of Appeals [35] and Vda. de Alberto vs. Court of Appeals [36] is misplaced. There, laches was applied to bar petitioners from questioning the ownership of the disputed properties
precisely because they had knowledge of the adverse claims on their properties yet tarried for an extraordinary period of time before taking steps to protect their rights.
Further, there is no absolute rule on what constitutes laches. It is a rule of equity and applied not to penalize neglect or sleeping on ones rights but rather to avoid recognizing a right when to do so would result in
a clearly unfair situation. The question of laches is addressed to the sound discretion of the court and each case must be decided according to its particular circumstances.[37] It is the better rule that courts, under the
principle of equity, should not be guided or bound strictly by the statute of limitations or the doctrine of laches if wrong or injustice will result.
It is clear that petitioner never acquired ownership over Cadastral Lot No. 954 whether by extraordinary acquisitive prescription or by laches.

Acquisition of Easement of Right of Way By

Prescription Under Art. 620 of the Civil Code

Petitioner contends that, even if it failed to acquire ownership of the subject land, it nevertheless became legally entitled to the easement of right of way over said land by virtue of prescription under Article 620 of
the Civil Code:
Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years.

The trial court and the Court of Appeals both upheld this view for the reason that the railroad right of way was, according to them, continuous and apparent in nature. The more or less permanent railroad tracks were
visually apparent and they continuously occupied the subject strip of land from 1959 (the year the easement granted by Feliciana Santillan to petitioner expired). Thus, with the lapse of the 10-year prescriptive period in
1969, petitioner supposedly acquired the easement of right of way over the subject land.
Following the logic of the courts a quo, if a road for the use of vehicles or the passage of persons is permanently cemented or asphalted, then the right of way over it becomes continuous in nature. The reasoning
is erroneous.
Under civil law and its jurisprudence, easements are either continuous or discontinuous according to the manner they are exercised, not according to the presence of apparent signs or physical indications of the
existence of such easements. Thus, an easement is continuous if its use is, or may be, incessant without the intervention of any act of man, like the easement of drainage;[38] and it is discontinuous if it is used at intervals
and depends on the act of man, like the easement of right of way.[39]
The easement of right of way is considered discontinuous because it is exercised only if a person passes or sets foot on somebody elses land. Like a road for the passage of vehicles or persons, an easement of
right of way of railroad tracks is discontinuous because the right is exercised only if and when a train operated by a person passes over another's property. In other words, the very exercise of the servitude depends upon
the act or intervention of man which is the very essence of discontinuous easements.
The presence of more or less permanent railroad tracks does not in any way convert the nature of an easement of right of way to one that is continuous. It is not the presence of apparent signs or physical
indications showing the existence of an easement, but rather the manner of exercise thereof, that categorizes such easement into continuous or discontinuous. The presence of physical or visual signs only classifies an
easement into apparent or non-apparent. Thus, a road (which reveals a right of way) and a window (which evidences a right to light and view) are apparent easements, while an easement of not building beyond a certain
height is non-apparent.[40]
In Cuba, it has been held that the existence of a permanent railway does not make the right of way a continuous one; it is only apparent. Therefore, it cannot be acquired by prescription.[41] In Louisiana, it has also been held
that a right of passage over another's land cannot be claimed by prescription because this easement is discontinuous and can be established only by title. [42]
In this case, the presence of railroad tracks for the passage of petitioners trains denotes the existence of an apparent but discontinuous easement of right of way. And under Article 622 of the Civil Code, discontinuous
easements, whether apparent or not, may be acquired only by title. Unfortunately, petitioner Bomedco never acquired any title over the use of the railroad right of way whether by law, donation, testamentary succession or
contract. Its use of the right of way, however long, never resulted in its acquisition of the easement because, under Article 622, the discontinuous easement of a railroad right of way can only be acquired by title and not
by prescription.
To be sure, beginning 1959 when the original 30-year grant of right of way given to petitioner Bomedco expired, its occupation and use of Cadastral Lot No. 954 came to be by mere tolerance of the respondent
heirs. Thus, upon demand by said heirs in 1989 for the return of the subject land and the removal of the railroad tracks, or, in the alternative, payment of compensation for the use thereof, petitioner Bomedco which
had no title to the land should have returned the possession thereof or should have begun paying compensation for its use.
But when is a party deemed to acquire title over the use of such land (that is, title over the easement of right of way)? In at least two cases, we held that if: (a) it had subsequently entered into acontractual right of
way with the heirs for the continued use of the land under the principles of voluntary easements or (b) it had filed a case against the heirs for conferment on it of a legal easement of right of way under Article 629 of the
Civil Code, then title over the use of the land is deemed to exist. The conferment of a legal easement of right of way under Article 629 is subject to proof of the following:
(1)

it is surrounded by other immovables and has no adequate outlet to a public highway;

(2)

payment of proper indemnity;

(3)

the isolation is not the result of its own acts; and

(4)

the right of way claimed is at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, the distance from the dominant estate to the highway is the shortest.[43]

None of the above options to acquire title over the railroad right of way was ever pursued by petitioner despite the fact that simple resourcefulness demanded such initiative, considering the importance of the
railway tracks to its business. No doubt, it is unlawfully occupying and using the subject strip of land as a railroad right of way without valid title yet it refuses to vacate it even after demand of the heirs. Furthermore, it
tenaciously insists on ownership thereof despite a clear showing to the contrary.
We thus uphold the grant by the Court of Appeals of attorneys fees in the amount of P10,000 considering the evident bad faith of petitioner in refusing respondents just and lawful claims, compelling the latter to
litigate.[44]
WHEREFORE, the petition is DENIED. The appealed decision dated November 17, 1995 and resolution dated March 2, 1996 of the Court of Appeals are AFFIRMED with MODIFICATION. Petitioner
Bogo-Medellin Milling Company, Inc. is hereby ordered to vacate the subject strip of land denominated as Cadastral Lot No. 954, remove its railway tracks thereon and return its possession to the private respondents,
the heirs of Magdaleno Valdez, Sr. It is also hereby ordered to pay private respondents attorney's fees in the amount of P10,000.
SO ORDERED.

SECOND DIVISION

[G.R. No. 137882. February 04, 2005]

SPS. ELIZABETH DE LA CRUZ and ALFREDO DE LA CRUZ, petitioners, vs. OLGA RAMISCAL represented by ENRIQUE MENDOZA, respondent.
DECISION
CHICO-NAZARIO, J.:
This petition for review assails (1) the Resolution[1] dated 11 September 1998 of the Court of Appeals which dismissed the appeal filed by petitioners from the Decision dated 31 July 1997 of the Regional Trial
Court (RTC), Branch 91, Quezon City, for Demolition of Illegally Constructed Structure, and (2) the Resolution [2] dated 05 March 1999 denying the subsequent motion for reconsideration.
The following facts, as recapitulated by the trial court, are undisputed.
Respondent OLGA RAMISCAL is the registered owner of a parcel of land located at the corner of 18th Avenue and Boni Serrano Avenue, Murphy, Quezon City, covered by Transfer Certificate of Title (TCT)
No. 300302 of the Register of Deeds for Quezon City.[3] Petitioners SPS. ELIZABETH and ALFREDO DE LA CRUZ are occupants of a parcel of land, with an area of eighty-five (85) square meters, located at the
back of Ramiscals property, and covered by TCT No. RT-56958 (100547) in the name of Concepcion de la Pea, mother of petitioner Alfredo de la Cruz. [4]
The subject matter of this case is a 1.10-meter wide by 12.60-meter long strip of land owned by respondent which is being used by petitioners as their pathway to and from 18 th Avenue, the nearest public highway
from their property. Petitioners had enclosed the same with a gate, fence, and roof. [5]
In 1976, respondent leased her property, including the building thereon, to Phil. Orient Motors. Phil. Orient Motors also owned a property adjacent to that of respondents. In 1995, Phil. Orient Motors sold its
property to San Benito Realty. After the sale, Engr. Rafael Madrid prepared a relocation survey and location plan for both contiguous properties of respondent and San Benito Realty. It was only then that respondent
discovered that the aforementioned pathway being occupied by petitioners is part of her property. [6]
Through her lawyer, respondent immediately demanded that petitioners demolish the structure constructed by them on said pathway without her knowledge and consent. As her letter dated 18 February 1995
addressed to petitioners went unheeded, the former referred the matter to the Barangay for conciliation proceedings, but the parties arrived at no settlement. Hence, respondent filed this complaint with the RTC in Civil
Case No. Q-95-25159, seeking the demolition of the structure allegedly illegally constructed by petitioners on her property. Respondent asserted in her complaint that petitioners have an existing right of way to a public
highway other than the current one they are using, which she owns. She prayed for the payment of damages.[7]
In support of the complaint, respondent presented TCT No. RT-56958 (100547) covering the property denominated as Lot 1-B in the name of Concepcion de la Pea, mother of petitioner herein Alfredo de la
Cruz. The aforesaid TCT reveals that a portion of Lot 1-B, consisting of 85 square meters and denominated as Lot 1-B-2, is being occupied by petitioners. To prove that petitioners have an existing right of way to a
public highway other than the pathway which respondent owns, the latter adduced in evidence a copy of the plan of a subdivision survey for Concepcion de la Pea and Felicidad Manalo prepared in 1965 and
subdivision plan for Concepcion de la Pea prepared in 1990. These documents establish an existing 1.50-meter wide alley, identified as Lot 1-B-1, on the lot of Concepcion de la Pea, which serves as passageway from
the lot being occupied by petitioners (Lot 1-B-2), to Boni Serrano Avenue.[8]
On the other hand, petitioners, in their Answer, admitted having used a 1.10-meter wide by 12.60-meter long strip of land on the northern side of respondents property as their pathway to and from 18th Avenue,
the nearest public highway from their property, but claimed that such use was with the knowledge of respondent. [9]
Petitioners alleged in their Answer that in 1976, respondent initiated the construction on her property of a motor shop known as Phil. Orient Motors and they, as well as the other occupants of the property at the
back of respondents land, opposed the construction of the perimeter wall as it would enclose and render their property without any adequate ingress and egress. They asked respondent to give them a 1.50-meter wide
and 40.15-meter long easement on the eastern side of her property, which would be reciprocated with an equivalent 1.50-meter wide easement by the owner of another adjacent estate. Respondent did not want to give
them the easement on the eastern side of her property, towards Boni Serrano Avenue but, instead, offered to them the said 1.10-meter wide passageway along the northern side of her property towards 18th Avenue,
which offer they had accepted. [10]
Petitioners additionally averred in their Answer that they were made to sign a document stating that they waived their right to ask for an easement along the eastern side of respondents property towards Boni
Serrano Avenue, which document was among those submitted in the application for a building permit by a certain Mang Puling,[11] the person in charge of the construction of the motor shop. That was why,

according to petitioners, the perimeter wall on respondents property was constructed at a distance of 1.10-meters offset and away from respondents property line to provide a passageway for them to and from
18th Avenue. They maintained in their Answer that respondent knew all along of the 1.10-meter pathway and had, in fact, tolerated their use thereof.
On 31 July 1997, the RTC handed down a Decision,[12] giving probative weight to the evidence adduced by respondent. The decretal portion enunciates:
Plaintiffs claim for moral damages must be denied as no evidence in support thereof was presented at all by her. Consequently, plaintiff is not entitled to exemplary damages.[13] However, for having been compelled to
file this suit and incur expenses to protect her interest, plaintiff is entitled to an attorneys fees in the amount of P10,000.00.
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and ordering the defendants to demolish the structure built by them along the pathway on the eastern side of plaintiffs
property towards 18th Avenue, Murphy, Quezon City and to pay [the] plaintiff the amount of P10,000.00 as and by way of attorneys fees.
Costs against the defendants.[14]
The Court of Appeals dismissed the appeal filed by petitioners from the RTC decision for failure to file brief within the reglementary period. The fallo of the Court of Appeals Decision, provides:
WHEREFORE, for failure of the defendants-appellants to file brief within the reglementary period, the instant appeal is hereby DISMISSED pursuant to Section 1(e), Rule 50 of the 1997 Rules of Civil Procedure.
The Compliance/Explanation filed by defendants-appellants, submitting the Letter-withdrawal of Atty. Judito Tadeo addressed to the said defendants-appellants is NOTED.
Let a copy of this Resolution be likewise served on defendants-appellants themselves.[15]
The motion for reconsideration filed by petitioners met the same fate in the Resolution of the Court of Appeals dated 05 March 1999.
Petitioners now lay their cause before us through the present petition for review, raising the following issues:
A. WHETHER OR NOT THE DENIAL OF THE COURT OF APPEALS OF THE PETITIONERS MOTION FOR RECONSIDERATION OF ITS RESOLUTION DATED SEPTEMBER 11, 1998 IS
SANCTIONED BY THE RULINGS AND LEGAL PRONOUNCEMENTS OF THE HONORABLE SUPREME COURT?
B. WHETHER OR NOT THE PETITIONERS ARE NONETHELESS ENTITLED TO A LEGAL EASEMENT OF RIGHT OF WAY, ASSUMING NO VOLUNTARY RIGHT OF WAY WAS GRANTED
THEM BY THE RESPONDENT?
C. WHETHER OR NOT OPERATIVE EQUITABLE PRINCIPLE OF LACHES TO BAR THE RESPONDENT FROM DEPRIVING THE PETITIONERS CONTINUED USE OF THE SAID RIGHT
OF WAY?[16]
The issues rivet on the adjective as well as on the substantive law, specifically: (1) whether or not the Court Appeals erred in dismissing the appeal filed by petitioners for failure to file appellants brief on time, (2)
whether or not petitioners are entitled to a voluntary or legal easement of right of way, and (3) whether or not respondent is barred by laches from closing the right of way being used by petitioners.
On the first issue, petitioners assert positively that the petition was filed on time on 30 April 1998, which is well within the 45-day period reckoned from 17 March 1998, when the secretary of their former counsel
received the notice to file appeal.
Petitioners arguments fail to persuade us.
Press earnestly as they would, the evidence on record, nevertheless, evinces contrariety to petitioners assertion that they have beat the 45-day period to file appellants brief before the appellate court. It is clear
from the registry return receipt card[17] that the Notice to File Brief was received on 12 March 1998 by one May Tadeo from the Office of Atty. Judito Angelo C. Tadeo, petitioners previous counsel. Thus, on 30 April
1998, when their new counsel entered his appearance and at the same time filed an appellants brief, the 45 days have run out. For failure of petitioners to file brief within the reglementary period, the Court of Appeals
correctly dismissed said appeal pursuant to Section 1(b), Rule 50 of the 1997 Rules of Civil Procedure. [18]
Neither can the members of this Court lend credence to petitioners contention that the written note of Atty. Tadeos office on the face of the Order reads that the said office received it on 17 March 1998.[19]
It is a rule generally accepted that when the service is to be made by registered mail, the service is deemed complete and effective upon actual receipt by the addressee as shown by the registry return card. [20] Thus,
between the registry return card and said written note, the former commands more weight. Not only is the former considered as the official record of the court, but also as such, it is presumed to be accurate unless

proven otherwise, unlike a written note or record of a party, which is often self-serving and easily fabricated. Further, this error on the part of the secretary of the petitioners former counsel amounts to negligence or
incompetence in record-keeping, which is not an excuse for the delay of filing.
Petitioners justification that their former counsel belatedly transmitted said order to them only on 20 March 1998 is not a good reason for departing from the established rule. It was the responsibility of
petitioners and their counsel to devise a system for the receipt of mail intended for them. [21] Rules on procedure cannot be made to depend on the singular convenience of a party.
Petitioners next take the stand that even assuming the brief was filed late, the Court of Appeals still erred in dismissing their petition in light of the rulings of this Court allowing delayed appeals on equitable
grounds.[22] Indeed, in certain special cases and for compelling causes, the Court has disregarded similar technical flaws so as to correct an obvious injustice made.[23] In this case, petitioners, however, failed to
demonstrate any justifiable reasons or meritorious grounds for a liberal application of the rules. We must remind petitioners that the right to appeal is not a constitutional, natural or inherent right - it is a statutory
privilege and of statutory origin and, therefore, available only if granted or provided by statute. [24] Thus, it may be exercised only in the manner prescribed by, and in accordance with, the provisions of the law. [25]
Anent the second issue, an easement or servitude is a real right, constituted on the corporeal immovable property of another, by virtue of which the owner has to refrain from doing, or must allow someone to do,
something on his property, for the benefit of another thing or person.[26] The statutory basis for this right is Article 613, in connection with Article 619, of the Civil Code, which states:
Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner.
The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate.
Art. 619. Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements.
Did respondent voluntarily accord petitioners a right of way?
We rule in the negative. Petitioners herein failed to show by competent evidence other than their bare claim that they and their tenants, spouses Manuel and Cecilia Bondoc and Carmelino Masangkay, entered
into an agreement with respondent, through her foreman, Mang Puling, to use the pathway to 18th Avenue, which would be reciprocated with an equivalent 1.50-meter wide easement by the owner of another adjacent
estate. The hands of this Court are tied from giving credence to petitioners self-serving claim that such right of way was voluntarily given them by respondent for the following reasons:
First, petitioners were unable to produce any shred of document evidencing such agreement. The Civil Code is clear that any transaction involving the sale or disposition of real property must be in
writing.[27] Thus, the dearth of corroborative evidence opens doubts on the veracity of the naked assertion of petitioners that indeed the subject easement of right of way was a voluntary grant from respondent. Second,
as admitted by the petitioners, it was only the foreman, Mang Puling, who talked with them regarding said pathway on the northern side of respondents property. Thus, petitioner Elizabeth de la Cruz testified that she
did not talk to respondent regarding the arrangement proposed to them by Mang Puling despite the fact that she often saw respondent.[28] It is, therefore, foolhardy for petitioners to believe that the alleged foreman of
respondent had the authority to bind the respondent relating to the easement of right of way. Third, their explanation that said Mang Puling submitted said agreement to the Quezon City Engineers Office, in
connection with the application for a building permit but said office could no longer produce a copy thereof, does not inspire belief. As correctly pointed out by the trial court,[29] petitioners should have requested a
subpoena duces tecum from said court to compel the Quezon City Engineers Office to produce said document or to prove that such document is indeed not available.
The fact that the perimeter wall of the building on respondents property was constructed at a distance of 1.10 meters away from the property line, does not by itself bolster the veracity of petitioners story that
there was indeed such an agreement. Further, as noted by the trial court, it was Atty. Federico R. Onandia, counsel of Phil. Orient Motors, who wrote petitioners on 25 August 1994 advising them that his client would
close the pathway along 18th Avenue, thereby implying that it was Phil. Orient Motors, respondents lessee, which tolerated petitioners use of said pathway. [30]
Likewise futile are petitioners attempts to show that they are legally entitled to the aforesaid pathway under Article 649 of the Civil Code, to wit:
Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons, and without adequate outlet to a public
highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity.
The conferment of a legal easement of right of way under Article 649 is subject to proof of the following requisites: (1) it is surrounded by other immovables and has no adequate outlet to a public highway; (2)
payment of proper indemnity; (3) the isolation is not the result of its own acts; (4) the right of way claimed is at the point least prejudicial to the servient estate; and (5) to the extent consistent with the foregoing rule,
where the distance from the dominant estate to a public highway may be the shortest. [31] The first three requisites are not obtaining in the instant case.
Contrary to petitioners contention, the trial court found from the records that Concepcion de la Pea had provided petitioners with an adequate ingress and egress towards Boni Serrano Avenue. The trial court,
gave weight to TCT No. RT-56958 (100547) covering the property denominated as Lot 1-B in the name of Concepcion de la Pea, mother of petitioner herein Alfredo de la Cruz. Said TCT indicates that a portion of
Lot 1-B, consisting of 85 square meters and denominated as Lot 1-B-2, is the one being occupied by petitioners.[32] In this connection, a copy of the plan of a subdivision survey for Concepcion de la Pea and Felicidad
Manalo prepared in 1965 and subdivision plan for Concepcion de la Pea prepared in 1990 revealed an existing 1.50-meter wide alley, identified as Lot 1-B-1, on the lot of Concepcion de la Pea, which serves as
passageway from the lot being occupied by petitioners (Lot 1-B-2) to Boni Serrano Avenue.[33] During the trial, petitioner Elizabeth de la Cruz herself admitted knowledge of the existence of the subdivision plan of Lot
1-B prepared for Concepcion de la Pea by Engr. Julio Cudiamat in 1990. The Subdivision Plan subdivided Lot 1-B into three portions, namely:
(1)

Lot 1-B-1, which is an existing alley, consisting of 59.60 square meters, towards Boni Serrano Avenue;

(2)

Lot 1-B-2, consisting of 85.20 square meters, which is being occupied by petitioners; and

(3)

Lot 1-B-3, consisting also of 85.20 square meters, which is being occupied by the sister of petitioner Alfredo dela Cruz.[34]

From petitioner Elizabeth de la Cruzs own admission, Lot 1-B-1 was intended by the owner, Concepcion de la Pea, to serve as an access to a public highway for the occupants of the interior portion of her
property.[35] Inasmuch as petitioners have an adequate outlet to a public highway (Boni Serrano Avenue), they have no right to insist on using a portion of respondents property as pathway towards 18th Avenue and for
which no indemnity was being paid by them.
Petitioner Elizabeth de la Cruz claimed before the trial court that although there was indeed a portion of land allotted by Concepcion de la Pea to serve as their ingress and egress to Boni Serrano Avenue,
petitioners can no longer use the same because de la Pea had constructed houses on it. As found by the trial court, the isolation of petitioners property was due to the acts of Concepcion de la Pea, who is required by
law to grant a right of way to the occupants of her property. In the trial courts rationale:
Article 649 of the Civil Code provides that the easement of right of way is not compulsory if the isolation of the immovable is due to the proprietors own acts. To allow defendants access to plaintiffs property
towards 18th Avenue simply because it is a shorter route to a public highway, despite the fact that a road right of way, which is even wider, although longer, was in fact provided for them by Concepcion de la Pea
towards Boni Serrano Avenue would ignore what jurisprudence has consistently maintained through the years regarding an easement of right of way, that mere convenience for the dominant estate is not enough to
serve as its basis. To justify the imposition of this servitude, there must be a real, not a fictitious or artificial necessity for it. In Francisco vs. Intermediate Appellate Court, 177 SCRA 527, it was likewise held that a
person who had been granted an access to the public highway through an adjacent estate cannot claim a similar easement in an alternative location if such existing easement was rendered unusable by the owners own act
of isolating his property from a public highway, such as what Concepcion de la Pea allegedly did to her property by constructing houses on the 1.50 meter wide alley leading to Boni Serrano Avenue. And, if it were
true that defendants had already bought Lot 1-B-2, the portion occupied by them, from Concepcion de la Pea, then the latter is obliged to grant defendants a right of way without indemnity.[36]
We hasten to add that under the above-quoted Article 649 of the Civil Code, it is the owner, or any person who by virtue of a real right may cultivate or use any immovable surrounded by other immovable pertaining to
other persons, who is entitled to demand a right of way through the neighboring estates. In this case, petitioners fell short of proving that they are the owners of the supposed dominant estate. Nor were they able to
prove that they possess a real right to use such property. The petitioners claim to have acquired their property, denominated as Lot 1-B-2, from Concepcion de la Pea, mother of defendant Alfredo de la Cruz, who
owns Lot 1-B-3, an adjacent lot. However, as earlier noted, the trial court found that the title to both lots is still registered in the name of Concepcion de la Pea under TCT No. RT-56958 (100547).[37] Neither were
petitioners able to produce the Deed of Sale evidencing their alleged purchase of the property from de la Pea. Hence, by the bulk of evidence, de la Pea, not petitioners, is the real party-in-interest to claim a right of
way although, as explained earlier, any action to demand a right of way from de la Peas part will not lie inasmuch as by her own acts of building houses in the area allotted for a pathway in her property, she had caused
the isolation of her property from any access to a public highway.
On the third issue, petitioners cannot find sanctuary in the equitable principle of laches under the contention that by sleeping on her right to reclaim the pathway after almost twenty years, respondent has, in
effect, waived such right over the same. It is not just the lapse of time or delay that constitutes laches. The essence of laches is the failure or neglect, for an unreasonable and unexplained length of time, to do that which,
through due diligence, could or should have been done earlier, thus giving rise to a presumption that the party entitled to assert it had either abandoned or declined to assert it.[38]
The essential elements of laches are: (a) conduct on the part of the defendant, or of one under whom he claims, giving rise to the situation complained of; (b) delay in asserting complainants rights after he had
knowledge of defendants acts and after he has had the opportunity to sue; (c) lack of knowledge or notice by defendant that the complainant will assert the right on which he bases his suit; and (d) injury or prejudice to
the defendant in the event the relief is accorded to the complainant. [39]
The second and third elements, i.e., knowledge of defendant's acts and delay in the filing of such suit are certainly lacking here. As borne by the records, it was only in 1995 that respondent found out that the
pathway being used by petitioners was part of her property when a relocation survey and location plan of her property and the adjacent land bought by San Benito Realty were prepared. [40] She immediately demanded
petitioners to demolish the structure illegally constructed by them on her property without her knowledge and consent. As her letter dated 18 February 1995 addressed to petitioners fell on deaf ears, and as no
settlement was arrived at by the parties at the Barangay level, respondent seasonably filed her complaint with the RTC in the same year. [41]
Respondent, in her Comment,[42] brings the Courts attention to petitioners conversion of the pathway, subject matter of this case, into a canteen and videoke bar, as shown by the pictures[43]showing the property
bearing the signage, FREDS[44] CANTEEN/VIDEOKE KAMBINGAN. Respondent, likewise, complains in her Comment about the structures installed by petitioners that encroached on respondents property line
as a result of the commercial activities by petitioners on the disputed property. Petitioners have implicitly admitted this conversion of the propertys use by their silence on the matter in their Reply [45] and
Memorandum.[46] Such conversion is a telltale sign of petitioners veiled pecuniary interest in asserting a right over the litigated property under the pretext of an innocuous claim for a right of way.
Viewed from all angles, from the facts and the law, the Court finds no redeeming value in petitioners asseverations that merit the reversal of the assailed resolutions.
WHEREFORE, the instant petition is DENIED. The Resolutions dated 11 September 1998 and 5 March 1999 of the Court of Appeals in CA-G.R. SP No. 68216 are AFFIRMED. The Decision dated 31 July
1997 of the Regional Trial Court is likewise UPHELD. Costs against petitioners.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

FIRST DIVISION

[G.R. No. 112331. May 29, 1996]

ANASTACIA QUIMEN, petitioner, vs. COURT OF APPEALS and YOLANDA Q. OLIVEROS, respondents.
DECISION
BELLOSILLO,J.:
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 Soteros 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. 1448B-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 Anastacias 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 amorebetween their house,
extending about nineteen (19) meters from the lot of Yolanda behind the sari-sari store of Sotero, and Anastacias 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 of the 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 Anastacias property facing the public highway, starting from the back of Soterossari-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 Soteros property was a straight path and to allow a detour by cutting through
Anastacias 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 Anastacias 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 petitioners 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 petitioners 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 right of 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 of Yolandas 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 of her 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 petitioners 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 anothers property, corporeal and immovable, whereby the owner of the latter must refrain from doing or allowing somebody else to do or something to be done on his
property, for the benefit of another person or tenement.[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 anothers 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 of way 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 Anastacias lot at
the side of a concrete store until plaintiff reach(es) her fathers land, plaintiff was induced to buy the aforesaid parcels of land x x x. That the aforesaid right of way is the shortest, most convenient and the least onerous
leading to the road and being used by the plaintiffs predecessors-in-interest from the very inception x x x.
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 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. [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

xxx

way).
xxx

xxx

Q.

Now, you will agree with me x x x 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 x x x 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 Yolandas property was situated at the back of her fathers 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 of Soteros 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 petitioners 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
petitioners 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.
Padilla (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-17482

March 31, 1966

GENOVEVA R. JABONETE, ET AL., plaintiffs,

vs.
JULIANA MONTEVERDE, ET AL., defendants,
ANTONIO LEGASPI, respondent-appellant,
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner-appellee,
MRS. LUZ ARCILLA, petitioner-intervenor-appellee.
Zuo and Mojica for the respondents-appellants.
Jesus Avancea for the plaintiffs.
REGALA, J.:
This is an appeal from an order of the Court of First Instance of Davao, dated March 11, 1960, finding the respondent-appellant, Antonio Legaspi, guilty of contempt of court, and imposing upon him a fine of P100.

On March 11, 1954, the Court of First Instance of Davao, in view of its finding in Case No. 824, entitled Jabonete vs. Monteverde, et al., that Antonio Legaspi acquired the lot in question with the knowledge that a
"gravamen" or easement of right of way existed thereon, promulgated a decision the dispositive portion of which reads:
Ordena al demandado Antonio Legaspi la demolicion de la parte del corral construido a lo largo de su terreno que impide a lote demandantes tener acceso con la vereda que communica con la carretera
principal, Tomas Claudio.
Declara que los demandantes tienen derecho el uso de la vereda (Exh. A-3), de 3 metros de ancho, unico paso que disponen para communicarse con la Calle Tomas Claudio, para el paso de sus jeeps, y los
vehiculos, reparados que entran y salen del taller de reparacion de aquellos.
The respondent-appellant received a copy of the decision on May 12, 1954. Two days later, May 14, 1954 he filed his notice of appeal therefrom. On May 21, 1954 however, upon a previous motion of the plaintiffs, the
lower court issued an order granting discretionary execution of the said decision. In view of this last mentioned order, the plaintiffs immediately proceeded to the premises in question and opened in the fence of the
defendant Antonio Legaspi a sufficient opening for the passage of men and vehicles. Even then, however, the defendant filed with the court below on that very same day, May 21, 1954, a motion for the reconsideration
of the order granting discretionary execution. Thereafter, and upon the lower court's suggestion, the parties entered into an amicable agreement which was later embodied in an order or "auto" dated May 24, 1954, to
wit:
A raiz de la mocion del demandado pidiendo antre otras cosas, la reconsideracion de la orden de ejecucion de la decision dictada en esta causa, el 22 del Mayo de 1954, el Juez que preside esta sala se
constituyo para una inspeccion ocular en el lugar en conflicto.
Durante la inspeccion ocular, los demandantes y demandado, Antonio Legaspi, llegaron a un acuerdo:
1. Los demandantes no instalaran en su terreno su taller de reparacion de vehiculos de motor.
2. Los demandantes pueden construir su garaje dentro de su terreno para su jeep (AC), pero no los tendran parados en la calle privada del demandados construida por este en su terreno a lo largo del terreno
de los demandantes;
3. Los demandantes contribuiran a prorata con el demandado los gastos de reparacion de la calle privada construida por el referido demandado en su terreno a lo largo del terreno de los
demandantes.1wph1.t
4. El demandado, Antonio Legaspi, permitira el uso y paso en la calle privada construida por el en su terreno a lo largo del terreno de los demandantes, a estos, su familia, sus amigos, chofers, servidumbre y
de sus jeeps.
5. Para los fines del uso de la calle, el demandado permitira a los demandantes, frente de la casa de estos, abrir una puerta de 4 metros de ancho en el corral construido por el demandado que separa la calle
privada y el terreno de los demandantes, a su (demandantes) costa; sus hojas tendran por dentro, que los demandantes tendran cerradas para evitar que los nios, hijos de los inquilinos del demandado tengan
acceso a los jeeps de los demandantes, cuyo garaje tendran dentro de su (demandantes) terreno.
El Juzgado ordena a las partes litigantes complan estrictamente con lo estipulado; de los contrario, los mismos estaran sujetos a las ordenes de este Juzgado.
As a result of the above agreement and Order of May 24, 1954, the defendant abandoned the prosecution of his appeal. At the same time, both parties complied with its terms until the plaintiffs, unable to continue with
their repair shop, transferred to another place in December 1959 whereupon the defendant reconstructed his fence and its footing, closing thereby the opening previously made by the plaintiffs.
In the course of time, the plaintiffs' lot was foreclosed by the Development Bank of the Philippines (DBP) which, later still, conveyed it under a conditional sale to Mrs. Luz Arcilla. On her acquisition of the said lot,
Mrs. Arcilla demanded of the defendant the re-opening of the fence in question as it was her plan to construct her house in the said lot. When the defendant refused, the Development Bank filed with the lower court a
petition to hold the said defendant in contempt. To this petition, Mrs. Luz Arcilla later intervened and was so allowed by the lower court. The Development Bank of the Philippines and Mrs. Luz Arcilla contended that
the refusal of the defendant to cause or allow the making of an opening in his fence was a defiance of the said court's decision of March 11, 1954 and was, therefore, contemptuous. After due hearing, the lower court
sustained the petitioners and found the defendant guilty of contempt with orders "to pay a fine of One Hundred Pesos (P100.00) and to open the vereda or alley leading to the lot owned by the Development Bank of
the Philippines and conveyed to Mrs. Luz S. Arcilla under a conditional deed of sale, otherwise he should be imprisoned until he does so." Thus, the instant appeal.
The respondent-appellant maintains that the lower court erred in finding him guilty of contempt because:

1. The decision of March 11, 1954 was novated by the order of May 24, 1954. Consequently, he could not have violated the former decree since with its novation it ceased to have any legal effect.
2. Even assuming that the said decision was not novated by the subsequent order of May 24, 1954, still he could not be deemed to have violated the said decision because the same never became final and
executory. The respondent-appellant argued that since the decision of March 11, 1954 ordered the opening of a right of way in his property without providing for this corresponding compensation to him,
contrary to Article 649 of the Civil Code,1 there was in the said decision "a void which ought to be filled or to be done in order to completely dispose of the case. It was not clear, specific and definitive," and
consequently, a judgment that could not have acquired finality.
3. The right to file contempt proceedings against him, with respect to the decrees contained in the decision of March 11, 1954, has prescribed. The respondent-appellant conceded that there is no prescriptive
period for the institution of contempt proceedings. However, he contended that inasmuch as contempt under Rule 64 of the Rules of Court is punishable by arresto mayor, it should prescribe in five years just
as crimes for which the said penalty is imposed prescribe, under the Penal Code, in five years.
Without passing on the merits or demerits of the foregoing arguments, this Court believes that the order finding the respondent-appellant guilty of contempt should be reversed. It is clear that the order of May 24, 1954
superseded and was fully intended by the lower court to modify or stand in substitution of the decision of March 11, 1954. More than the expression of the parties amicable agreement on the dispute, the said order was
the lower court's resolution of the respondent-appellant's motion for reconsideration of the decision of March 11, 1954. In the determination, therefore, of the said appellant's obligation relative to the easement in
question, the latter and not the decision of March 11, 1954 is the proper point in reference.
Under the aforesaid order of May 24, 1954, the easement awarded or secured by the lower court to the plaintiffs was strictly a personal one. The right of way granted was expressly limited to the latter and their "family,
friends, drivers, servants and jeeps." In the very language of the agreement the following appears:
El demandado Antonio Legaspi, permitira el uso y paso en la calle privada construida por el en su terreno a lo largo del terreno de los demandantes, a estos, su familia, sus amigos, chofers, servidumbre y de
sus jeeps.
The servitude established was clearly for the benefit alone of the plaintiffs and the persons above enumerated and it is clear that the lower court, as well as the parties addressed by the said order, did not intend the same
to pass on to the plaintiffs'
successors-in-interest. In other words, the right acquired by the original plaintiffs was a personal servitude under Article 614 of the Civil Code, and not a predial servitude that inures to the benefit of whoever owns the
dominant estate.
In resisting the extension of the aforementioned easement to the latter, the plaintiffs' successors-in-interest, the respondent-appellant, therefore, was not defying the decision of March 11, 1954 which was then no longer
subsisting, nor the order of May 24, 1954 since the said successors-in-interest had no right thereunder.
Another evidence that the servitude in question was personal to the plaintiffs is the fact that the same was granted to the latter without any compensation to the respondent-appellant.
Wherefore, the order of the lower court dated March 11, 1960 finding the respondent-appellant guilty of contempt is hereby reversed, without pronouncement as to costs.
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
Bautista Angelo and Dizon, JJ., took no part.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-48384

October 11, 1943

SEVERO AMOR, petitioner,

vs.
GABRIEL FLORENTINO, ET AL., respondents.

BOCOBO, J.:
The petitioner asks for the setting aside of the decision of the Court of Appeals which affirmed the judgment of the Court of First Instance of Ilocos Sur. The trial court declared that an easement of light and view had
been established in favor of the property of the plaintiffs (respondents herein) and ordered the petitioner to remove within 30 days all obstruction to the windows of respondents' house, to abstain from constructing
within three meters from the boundary line, and to pay P200.00 damages.
It appears that over 50 years ago, Maria Florentino owned a house and a camarin or warehouse in Vigan, Ilocos Sur. The house had and still has, on the north side, three windows on the upper story, and a fourth one on
the ground floor. Through these windows the house receives light and air from the lot where the camarin stands. On September 6, 1885, Maria Florentino made a will, devising the house and the land on which it is
situated to Gabriel Florentino, one of the respondents herein, and to Jose Florentino, father of the other respondents. In said will, the testatrix also devised the warehouse and the lot where it is situated to Maria
Encarnancion Florentino. Upon the death of the testatrix in 1882, nothing was said or done by the devisees in regard to the windows in question. On July 14, 1911, Maria Encarnacion Florentino sold her lot and the
warehouse thereon to the petitioner, Severo Amor, the deed of sale stating that the vendor had inherited the property from her aunt, Maria Florentino. In January, 1938, petitioner destroyed the old warehouse and
started to build instead a two-story house. On March 1st of that year, respondents filed an action to prohibit petitioner herein from building higher than the original structure and from executing any work which would
shut off the light and air that had for many years been received through the four windows referred to. The Court of First Instance found on the 15th of the same month that the construction of the new house had
almost been completed, so the court denied the writ of preliminary injunction.
I.
Inasmuch as Maria Florentino died in 1892, according to the finding of fact of the Court of Appeals, Articles 541 of the Civil Code governs this case. The facts above recited created the very situation provided for in
said article, which reads as follows:
(Spanish - page 406)
Art. 551. La existencia de un signo aparente de servidumbre entre dos fincas, establecido por el propietario de ambas, se considerara, si se enjenare una, como titulo para que la servidumbre continue activa y
pasivamente, a no ser que, al tiempo de separarse la propiedad de las dos fincas, se exprese lo contrario en el titulo de enajenacion de cualquiera de ellas, o se haga desaparecer acquel signo antes del
otorgamiento de la escritura.
Art. 541. 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.
When the original owner, Maria Florentino, died in 1892, the ownership of the house and its lot passed to respondents while the dominion over the camarin and its lot was vested in Maria Encarnancion Florentino, from
whom said property was later bought by petitioner. At the time the devisees took possession of their respective portions of the inheritance, neither the respondents nor Maria Encarnacion Florentino said or did anything
with respect to the four windows of the respondents' house. The respondents did not renounce the use of the windows, either by stipulation or by actually closing them permanently. On the contrary, they exercised the
right of receiving light and air through those windows. Neither did the petitioner's predecessor in interest, Maria Encarnacion Florentino, object to them or demand that they be close. The easement was therefore
created from the time of the death of the original owner of both estates, so when petitioner bought the land and the camarinthereon from Maria Encarnancion Florentino, the burden of this easement continued on the
real property so acquired because according to Article 534, "easements are inseparable from the estate to which they actively or passively pertain."
An incidental question that arises at this juncture is whether or not Article 541 applies to a division of property by succession. The affirmative has been authoritatively declared. (Manresa, "Comentarios al Codigo Civil
Espanol," vol. 4, p. 619; Sentence of the Supreme Tribunal of Spain, November 17, 1911).
Petitioner assigns as an error of the Court of Appeals the supposed failure of that tribunal to pass upon his motion to consider certain allegedly new evidence to prove that Maria Florentino, the original owner of the
properties, died in 1885. Petitioner alleges that Maria Florentino died in 1885 and, therefore, the Law of the Partidas should be followed in this case and not the Civil Code. However, the petitioner's contention cannot
be upheld without rejecting the finding of fact made by the Court of Appeals, as follows:

Hebiendo pasado la propiedad de la casa de manposteria a los demandantes, a la muerte de Maria Florentino, ocurrida en 1892, (el demandado sostiene que fue con anterioridad a 1889) no hay duda ninguna
de que los demandantes adquirieron la servidumbre mediante titulo y por prescripcion (Art. 537).
We cannot review the above finding of fact by the Court of Appeals that Maria Florentino die in 1892. The evidentiary fact from which the Court of Appeals drew the above finding is that Gregorio Florentino during
the trial in 1938 testified to facts of his own personal knowledge, and he was then 58 years old, having been born in 1880. If Maria Florentino, as claimed by petitioner, had died in 1885, Gregorio Florentino would have
been only 5 years of age at the time of Maria Florentino's death. The Court of Appeals therefore concluded that Maria Florentino died in 1892, when Gregorio Florentino was ten 12 years of age. We do not believe we
can disturb the finding of the Court of Appeals, because its deductions as to the date of Maria Florentino's death may be right or wrong, according to one's own reasoning. In other words, its conclusion of fact from
Gregorio Florentino's testimony is not necessarily and unavoidably mistaken. On the contrary, it is reasonable to believe that a person 58 years old cannot remember facts of inheritance as far back as when he was only 5
years of age.
Furthermore, the burial certificate and the gravestone, whose copy and photograph, respectively, were offered by petitioner in a motion for new trial filed in the Court of Appeals, could have been discovered by
petitioner before the trial in the Court of First Instance by the exercise of due diligence. There is no reason why this evidence could be found when the case was already before the Court of Appeals, but could not be
found before the trial in the Court of First Instance. It was easy, before such trial, for the petitioner to inquire from the relatives of Maria Florentino as to when she died. And having ascertained the date, it was also easy
to secure the burial certificate and a photograph of the gravestone, supposing them to be really of Maria Florentino. The fact is, petitioner never tried to find out such date and never tried to secure the additional
evidence till his counsel raised this issue for the first time before the Court of Appeals. That Court was therefore died in 1885. (Sec. 497, Act. 190). The petitioner's statement in his brief (p. 11) that the Court of Appeals
neither passed upon his motion nor took the burial certificate and the gravestone into account is not true, because the very words of the Court of Appeals clearly show that the Court had in mind said motion and
evidence when the decision was signed. The decision said: "a la muerte de Maria Florentino ocurrida en 1892 (el demandado sostiene que fue con anteriodad a 1889)" (Emphasis supplied).
Lastly, the issue as to the date of Maria Florentino's death cannot be raised for the first time on appeal. Petitioner did not in the trial court allege or prove this point. He presented this issue for the first time in the Court
of Appeals. (Sec. 497, Act. 190).
Let us now consider Article 541 more closely in its application to the easement of light and view and to the easement not to build higher (altius non tollendi). These two easements necessarily go together because an
easement of light and view requires that the owner of the servient estate shall not build to a height that will obstruct the window. They are, as it were, the two sides of the same coin. While an easement of light and view
is positive, that of altius non tollendi is negative. Clemente de Diego states that when article 538 speaks of the time for the commencement of prescription for negative easements, "it refers to those negative easements
which are the result and consequence of others that are positive, such as the easement not to build higher, or not to construct, which is indispensable to the easement of light." (Se refiere a aquellas servidumbres
negativas que son sucuela y consecuencia de otras positivaas, como la de no levantar mas alto, o de no edificar, que es imprescindible para la servidumbre de luces.") ("Curso Elemental de Derecho Civil Espaos,
Comun y Foral," vol. 3, p. 450). This relation of these two easements should be borned in mind in connection with the following discussion of (1) the modes of establishing and acquiring easements; (2) the meaning of
article 541; and (3) the doctrine in the case of Cortes vs. Yu-Tibo.
First, as to the modes of establishing and acquiring easements. According to Article 536, easements are established by law or by will of th owners. Acquisition of easements is first by title or its equivalent and seconly by
prescription. What acts take the place of title? They are mentioned in Articles 540 and 541, namely, (1) a deed of recognition by the owner of the servient estate; (2) a final judgment; and (3) an apparent sign between two
estates, established by the owner of both, which is the case of article 541. Sanchez Roman calls cuh apparent sign under article 541 "supletoria del titulo constitutivo de la servidumbre (Derecho Civil, vol. 3, p. 656). The
same jurist says in regard to the ways of constituting easements:
(Spanish word - page 410)
In the Sentence of the Supreme Tribunal of Spain dated November 7, 1911, it was held that under article 541 of the Civil Code, the visible and permanent sign of an easement "is the title that characterizes its existence"
("es el titulo caracteristico de su existencia.")
It will thus be seen that under article 541 the existence of the apparent sign in the instance case, to wit, the four windows under consideration, had for all legal purposes the same character and effect as a title of
acquisition of the easement of light and view by the respondents upon the death of the original owner, Maria Florentino. Upon the establishment of that easement of light and view, the con-comitant and concurrent
easement of altius non tollendi was also constituted, the heir of the camarin and its lot, Maria Encarnacion Florention, not having objected to the existence of the windows. The theory of article 541, of making the existence
of the apparent sign equivalent to a title, when nothing to the contrary is said or done by the two owners, is sound and correct, because as it happens in this case, there is an implied contract between them that the
easements in question should be constituted.
Analyzing article 541 further, it sees that its wording is not quite felicitous when it says that the easement should continue. Sound juridical thinking rejects such an idea because, properly speaking, the easement is not
created till the division of the property, inasmuch as a predial or real easement is one of the rights in another's property, orjura in re aliena and nobdy can have an easement over his own property, nimini sua res servit. In the
instant case, therefore, when the original owner, Maria Florentino, opened the windows which received light and air from another lot belonging to her, she was merely exercising her right of dominion. Consequently, the
moment of the constitution of the easement of light and view, together with that of altius non tollendi, as the time of the death of the original owner of both properties. At that point, the requisite that there must be two
proprietors one of the dominant estate and another of the servient estate was fulfilled. (Article 530, Civil Code.)

Upon the question of the time when the easement in article 541 is created, Manresa presents a highly interesting theory, whether one may agree with it or not. He says:
La servidumbre encubierta, digamoslo asi, por la unidad de dueo, se hace ostensible, se revela con toda su verdadera importancia al separarse la propiedad de las fincas o porciones de finca que
respectivamente deben representar el papel de predios sirviente y dominante.
The concealed easement, as it were by the oneness of the owner, becomes visible, and is revealed in all its importance when the ownership of the estate or portions of the estate which respectively should play
the role of servient and dominant estates is divided.
Such a view cannot be fully accepted because before the division of the estate there is only a service in fact but not an easement in the strictly juridical sense between the two buildings or parcels of land.
We come now to the case of Cortes vs. Yu-Tibo, 2 Phil., 24 decided in 1903, Mr. Justice, later Chief Justice, Mapa speaking for the Court. Counsel for petitioner contends that the doctrine in that case is controlling in the
present one. If the essential facts of the two cases were the same, there is not doubt but that the early opinion would be decisive inasmuch as it is by its cogent reasoning one of the landmarks in Philippine jurisprudence.
However, the facts and theories of both cases are fundamentally dissimilar. What is more, as will presently be explained, that every decision makes a distinction between that case and the situation provided for in article
541. In that case, Cortes sought an injunction to restrain Yu-Tibo from continuing the construction of certain buildings. Cortes' wife owned a house in Manila which had windows that had been in existence since 1843.
The defendant, who occupied a house on the adjoining lot, commenced to raise the roof of the house in such a manner that one-half of the windows in the house owned by plaintiff's wife had been covered. This Court,
in affirming the judgment of the lower court which dissolved the preliminary injunction, held that the opening of windows through one's own wall does not in itself create an easement, because it is merely tolerated by
the owner of the adjoining lot, who may freely build upon his land to the extent of covering the windows, under article 581, and that his kind of easement is negative which can be acquired through prescription by
counting the time from the date when the owner of the dominant estate in a formal manner forbids the owner of the servient estate from obstructing the light, which had not been done by the plaintiff in this case.
It will thus be clear that one of the essential differences between that case and the present is that while the Yu-Tibo case involved acquisition of easement by prescription, in the present action the question is the
acquisition of easement by title, or its equivalent, under article 541. Therefore, while a formal prohibition was necessary in the former case in order to start the period of prescription, no such act is necessary here
because the existence of the apparent sign when Maria Florentino died was sufficient title in itself to created the easement.
Another difference is that while in the Yu-Tibo case, there were tow different owners of two separate houses from the beginning, in the present case there was only one original owner of the two structures. Each
proprietor in the Yu-Tibo case was merely exercising his rights of dominion, while in the instant case, the existence of the apparent sign upon the death of the original owner ipso facto burdened the land belonging to
petitioner's predecessor in interest, with the easements of light and view and altius non tollendi in virtue of article 541.
The very decision in Cortes vs. Yu-Tibo distinguishes that case from the situation foreseen in article 541. Said this Court in that case:
It is true that the Supreme Court of Spain, in its decisions of February 7 and May 5, 1986, has classified as positive easements of light which were the object of the suits in which these decisions were rendered
in cassation, and from these it might be believed at first glance, that the former holdings of the supreme court upon this subject had been overruled. But this is not so, as a matter of fact, inasmuch as there is
no conflict between these decisions and the former decisions above cited.
In the first of the suits referred to, the question turned upon two houses which had formerly belonged to the same owner, who established a service of light on one of them for the benefit of the other. These
properties were subsequently conveyed to two different persons, but at the time of the separation of the property noting was said as to the discontinuance of the easement, nor were the windows which
constituted the visible sign thereof removed. The new owner of the house subject to the easement endeavored to free it from the incumbrance, notwithstanding the fact that the easement had been in
existence for thirty-five years, and alleged that the owner of the dominant estate had not performed any act of opposition which might serve as a starting point for the acquisition of a prescriptive title. The
supreme court, in deciding this case, on the 7th of February, 1896, held that the easement in this particular case was positive, because it consisted in the active enjoyment of the light. This doctrine is doubtless
based upon article 541 of the Code, which is of the following tenor: "The existence of apparent sign of an easement between two tenements, established by the owner of both of them, shall be considered,
should one be sold, as a title for the active and passive continuance of the easement, unless, at the time of the division of the ownership of both tenements, the contrary should be expressed in the deed of
conveyance of either of them, or such sign is taken away before the execution of such deed.'
The word "active" used in the decision quoted in classifying the particular enjoyment of light referred to therein, presuposes on the part of the owner of the dominant estate a right to such enjoyment arising, in
the particular cases passed upon by that decision, from the voluntary act of the original owner of the two houses, by which he imposed upon one of them an easement for the benefit of the other. It is well
known that easements are established, among other cases, by the will of the owners. (Article 536 of the Code.) It was an act which was, in fact, respected and acquiesced in by the new owner of the servient
estate, since he purchased it without making any stipulation against the easement existing thereon, but, on the contrary, acquiesced in the continuance of the apparent sign thereof. As is stated in the decision
itself, "It is a principle of law that upon a division of a tenement among various persons in the absence of any mention in the contract of a mode of enjoyment different from that to which the former
owner was accustomed such easements as may be necessary for the continuation of such enjoyment are understood to subsist." It will be seen, then, that the phrase "active enjoyment" involves an idea
directly opposed to the enjoyment which is the result of a mere tolerance on the part of the adjacent owner, and which, as it is not based upon an absolute, enforceable right, may be considered as of a merely
passive character. (2 Phil., 29-31).

Finally, the Yu-Tibo case was decided upon the theory if the negative easement of altius non tollendi, while the instant case is predicated on the idea of the positive easement of light and view under article 541. On this
point, suffice it to quote from Manresa's work. He says:
Que en las servidumbres cuyo aspecto positivo aparece enlazado al negativo, asi como al efecto de la precripcion ha de considerarse prefente el aspecto negativo, al efecto del art. 541 basta atender al aspecto
positivo, y asi la exitencia de huecos o ventanas entre dos fincas que fueron de un mismo dueo es bastante para considerar establecidas, al separarse la propiedad de esas fincas, las servidumbres de luces o
vista, y con ellas las de no edificar on no levantar mas ato, porque sin estas no prodrian existir aquellas.
That in easements whose positive aspect appears tied up with the negative aspect, just as for the purposes of prescription the negative aspect has to be considered preferential, so for the purposes of Article
541 it is sufficient to view the positive aspect, and therefore the existence of openings or windows between two estates which belonged to the same owner is sufficient to establish, when the ownership of
these estates is divided, the easement of light or view, and with them the easements of altius non tollendi because without the latter, the former cannot exists.
There are several decisions of the Supreme Court of Spain which have applied Article 541. Some of them are those of February 7, 1986; February 6, 1904; May 29, 1911; and November 17, 1911.
The sentence of February 7, 1896, dealt with windows established in one house by the original of two houses. When he died, the two houses were adjudicated to different heirs. The court held that there was an easement
of light.
Considerando que, segun lo establecido por este Supremo Tribunal en repetidas sentencias, y consignado, muy principalmente, en la dictada en 21 de Octubre de 1892, lo preceptuado en la ley 14, titulo 31 de
la Partida 3.a, al tratar del mode de constituirse las servidumbres, no esta en oposicion con el pricipio mediante el que, dividida una finca entre diversas personas, sin que en el contrato se mencione cosa alguna
acerca de un modo de aprovenchamiento distinto del que usaba el primitivo dueo de ella, se entieden subsistentes las servidumbres ncesarias para que aquel pueda tener lugar.
Considerando que ese principio y jurisprudencia han obtenido nueva sancion, puesto que a ellos obedece el concepto claro y concreto del articulo 541 del Codigo Civil, aplicable al caso, . . . (Ruiz, Codigo
Civil, Vol. V, pp. 349-350).
Considering that, according to what has been established by this Supreme Tribunal in repeated sentences, and principally declared in the sentence promulgated on October 21, 1892, the provision of law 14,
title 31 of Partida 3 in treating of the mode of constituting easements, is not contrary to the principle that when an estate is divided between different persons, and in the contract nothing is said out a mode of
enjoyment different from that used by the original owner thereof, the necessary easements for said mode of enjoyment are understood to be subsisting;
Considering that such principle and jurisprudence have obtained a new santion, for due to them is the clear and concrete concept of Article 541 applicable to the case . . . .
Therefore, considering that Maria Florentino died in 1892, according to a finding of fact by the Court of Appeals, there is an easement of light and view in favor of the respondents' property under article 541 of the Civil
Code.
But granting, arguendo, that Maria Florentino died in 1885, as contended by petitioner, nevertheless the same principle enunciated in article 541 of the Spanish Civil Code was already an integral part of the Spanish law
prior to the Civil Code, the easement in question would also have to be upheld. That the law before the Civil Code was the same as at present is shown by the following:
1. Under Law 14, Title 31, Partida 3, this easement was constituted by an implied contract among the heirs of Maria Florentino.
2. Granting for the sake of argument that this easement was not created through an implied contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas was not inconsistent with the
principle in question, so that there was a gap in the Partidas which the Supreme Court of Spain filled up from the Roman Law and modern civil codes, by recognizing the existence of this kind of easement.
3. Law 17, Title 31, Partida 3 regarding the extinguishment of an easement did not prohibit the easement in the instant case, Therefore, we should adhere to the decisions of the Supreme Court of Spain which
maintain this easement under the Spanish law prior to Civil Code.
4. Other considerations show that the principle of apparent sign as announced by the Supreme Tribunal of Spain is not incompatible with the Partidas.
First, as to the implied contract. Law 14, Title 31, Partida 3 provided that easements were acquired by contract, by will and by prescription. Upon the death of the original owner, Maria Florentino, the four windows under
consideration already existed and were visible. One of the heirs, Maria Encarnacion Florentino, to whom thecamarin and its lot had been devised, having failed to object to the same, knowingly consented to their
continuance. Nor did Gabriel and Jose Florentino (devisees of the house that had the four windows) permanently close the windows. There was consequently an implied agreement between her and the devisees of the

house with the four windows to the effect that the service of these windows would continue, thus creating the easement of light and view and the concomitant easement of altius non tollendi. Hence, the easement in
question was acquired by Gabriel and Jose Florentino through contract under Law 14, Title 31, Partida 3.
Secondly, with respect to the doctrine of the Supreme Tribunal of Spain. In a series of decisions of that court, it was held that Law 14, Title 31, Partida 3 was not opposed to the easement under review. One of those
decisions is that of November 7, 1883, which held:
(Spanish word - page 418)
Other decisions of the Supreme Tribunal of Spain to the same effect are those of September 14, 1867 and June 7, 1883. (See Scaevola, "Codigo Civil Comentado" vol. 10, pp. 272-274.)
So that, granting for the sake of argument, that the easement was not created through an implied contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas, according to decisions of the
Supreme Tribunal of Spain, was not inconsistent with the principle in question. The problem in this case not having been foreseen in Law 14, Title 31, Partida 3, there was a gap in the old legislation, which the Supreme
Tribunal of Spain filled up from the Roman Law and from modern Civil Codes.
The principle in question was deeply rooted in the Roman Law. It is from the Roman Law that the Supreme Tribunal of Spain obtained this principle, in order to solve a question not provided for by the Partidas, whose
main source was also the Roman law. In other words, the Partidas being silent on the point under consideration, the Supreme Tribunal of Spain resorted to the authoritative voice of the Roman law from which the Law
of the Partidas had derived its inspiration.
The following quotations from the Spanish version the Roman Law Digest will prove the assertions just made:
(Spanish word - page 419)
Among the modern civil codes which contain the rule in question are those of France, Belgium, Holland, Portugal, Mexico and Chile. It is presumed that the Supreme Tribunal of Spain had also in mind at least one of
them when it decided cases involving this principle before the promulgation of the Spanish Civil Code.
When, therefore, Maria Florentino died (supposing she died in 1885), the status of the Spanish law was in favor of the doctrine in question. We cannot change it because it was in full force at the time of the alleged date
of Maria Florentino's death. We cannot reject a doctrine established by the Spanish Supreme Tribunal as an integral part of the Spanish law before the promulgation of the Civil Code in 1889. And we know that
jurisprudence in the sense of court decisions is one of the sources of the law.
Thirdly, concerning Law 17, Title 31, Partida 3. It is true that the eminent jurist, Manresa, is of the opinion that "el precepto del art. 541 no solo no existia en nuestra antigua legislacion, sino que podia deducirse
claramente lo contrario de la ley 17, tit. 31, Partida 3.a . . . ." However, a careful reading of this provision of the Partidas reveals that the same did not militate against the creation of an easement by an apparent sign if
nothing was said or done when the property is divided. Law 17, Title 31, Partida 3, read as follows:
(spanish word - page 420-21)
This law regulates the extinguishment of an easement by merger of the dominant and the servient estates. Speaking of this law of the Partidas and of article 546, par. 1, of the Civil Code, both of which refer to merger of
the two estates, Acaevola says: (p. 319, vol. 10)
But there is a world of difference between extinguishment of an easement by merger of the two estates and theconstitution of an easement by an apparent sign when nothing is done or said upon the division of the property.
Law 17, title 31, Partida 3, having in mind only the modes of extinguishment, the legislator did not intend to cover the question involved in the present case, which refers to the creation of an easement.
What, then, are the differences between the extinguishment of an easement by merger under Law 17, title 31, Partida 3, and the constitution of an easement in this case, both before and after the Civil Code went into effect?
First, in merger under Law 17, Title 31, Partida 3, there were from the very beginning, already two separate estates, the dominant and the servient estates, whereas in this case, there was only one estate.
Second, in merger under said Law 17, there were already two owners, whereas in this case, there was only one owner, Maria Florentino.

Third, in merger under Law 17, there was already an easement in the legal sense, whereas in the instant case, there was only a service between the two lots, (while Maria Florentino was living) but there was as yet no
easement from the juridical viewpoint.
4. Other considerations prove that the principle of apparent sign as enunciated by the Supreme Tribunal of Spain is not inconsistent with the Partidas. These considerations are:
1. Article 537, Civil Code, provides that continuous and apparent easements are acquired by title, or by prescription. However, side by side with that article is article 541 which contemplates an easement upon
division of an estate, unless a stipulation to the contrary is agreed upon, or the sign is destroyed. Bearing in mind that "title" includes a contract, our view is that if Article 537 and 541 of the Civil Code can
stand together, there is no reason why Law 14, title 31, Partida 3, whereby easements are acquired by contract, by will and by prescription should be considered incompatible with the easement under review.
2. Article 546, par. 1 of the Civil Code ordains that by merger of the two estates in the same owner an easement is extinguished. Yet, coexistent with such provision is that of article 541 regarding the apparent
sign which is a title for the easement. If these two principles can and do stand together under the Civil Code, the doctrine laid down by the Supreme Tribunal of Spain before the Civil Code was in force
about the effect of an apparent sign can also stand together with Law 17, title 31, Partida 3 declaring the extinguishment of an easement by merger.
3. Under article 546, par. 1 of the Civil Code, merger extinguishes an easement. So in case the estate is again divided by purchase, etc., the easement is not, under the Civil Code automatically revived. That is
the same provision of law 17, title 31, Partida 3, which does not reject the principle in question, just as article 546, par. 1 of the Civil Code does not reject article 541 about an apparent sign.
III.
Aside from the foregoing reasons that support the easement under consideration, the same has been acquired by respondents through prescriptions.
The easement involved in this case is of two aspects: light and view and altius non tollendi. These two aspects necessarily go together because an easement of light and view prevents the owner of the sevient estate from
building to a height that will obstruct the windows. This court in Cortes vs. Yu-Tibo, supra, held that the easement concerned when there is an apparent sign established by the owner of two estates is positive. Manresa is of
the same opinion, supra. This being so, and inasmuch as the original heirs of Maria Florentino succeeded to these two estates either in 1885 or in 1892 and as petitioner bought one of the lots in 1911, the prescriptive
period under any legislation that may be applied the Partidas, Civil Code or Code of Civil Procedure has elapsed without the necessity of formal prohibition on the owner of the servient estate. The respondent's
action was brought in 1938. The persons who were present, and 20 years between absentees. (4 Manresa, 605). According to article 537 of the Civil Code, continous and apparent easements may be acquired by
prescription for 20 years. Under sections 40 and 41 of the Code of Civil Procedure, the period is 10 years.
IV.
The petitioner maintains that he is an innocent purchaser for value of the lot and camarin thereon, and that he was not bound to know the existence of the easement because the mere opening of windows on one's own
wall does not ipso facto create an easement of light. Such contention might perhaps be in point if the estates had not originally belonged to the same owner, who opened the windows. But the petitioner was in duty bound
to inquire into the significance of the windows, particularly because in the deed of sale, it was stated that the seller had inherited the property from her aunt, Maria Florentino. Referring to the Sentence of the Supreme
Court of Spain dated February 7, 1896, which applied Article 541, this Court in the case of Cortes vs. Yu-Tibo already cited, said that the establishment of the easement "was an act which was in fact respected and
acquiesced in by the new owner of the servient estate, since he purchased it without making any stipulation against the easement existing thereon, but on the contrary acquiesced in the new owner of the servient estate,
since he purchased it without making any stipulation against the easement existing thereon, but on the contrary, acquiesced in the continuance of the apparent sign thereof." (p. 31). Moreover, it has been held that
purchasers of lands burdened with apparent easements do not enjoy the rights of third persons who acquire property, though the burden it not recorded. (Sentence of the Supreme Tribunal of Spain, April 5, 1898).
V.
Let us now discuss the case from the standpoint of justice and public policy.
First. When Maria Encarnacion Florentino, as one of the devisees, accepted the camarin and the lot, she could not in fairness receive the benefit without assuming the burden of the legacy. That burden consisted of
the service in fact during the lifetime of the original owner, which service became a true easement upon her death.
Second. According to Scaevola, the reason for the principle in question is that there is a tacit contract. He says in vol. 10, p. 277:
(spanish word - page 424)

Aun hay mas: hay, en nuestro entender, no solo presuncion de voluntad del enajenante, o sea del dueo de las fincas que estuvieren confundidas, sino convencion, siquiera sea tacita, entre el vendedor y al
adquirente de la finca vendida. Puesto que pudiendo estipular la no existencia de la servidumbre, nada dicen o nada hacen, fuerza es presumir que el segundo (comprador) acepta el estado jurisdico creado por
el primero (vendedor).
It is not just to allow Maria Encarnacion Florentino or her successor in interest to repudiate her own undertaking, implied, it is true, but binding nevertheless. This easement is therefore a burden which Maria
Encarnacion Florentino and her successor in interest willingly accepted. They cannot now murmur against any inconvenience consequent upon their own agreement.
Third. During the construction of the new house by the petitioner, the respondents filed an action to stop the work. But petitioner continued the construction, so that when the Court of First Instance was ready to pass
upon the preliminary injunction, the work had almost been finished. Petitioner, therefore, cannot complain if he is now ordered to tear down part of the new structure so as not to shut off the light from respondents'
windows.
Fourth. When petitioner bought this lot from the original coheir, Maria Encarnacion Florentino, the windows on respondents' house were visible. It was petitioner's duty to inquire into the significance of those windows.
Having failed to do so, he cannot now question the easement against the property which he purchased.
(spanish word - page 425)
This idea of easements can never become obsolete in the face of modern progress. On the contrary, its need is all the more pressing and evident, considering that this mutual assistance and giving way among estates is
demanded by the complexities of modern conditions, such as those which obtain in large cities where buildings, large and small, are so close together.
VI.
Recapitulating, we believe the easement of light and view has been established in favor of the property of respondents, for these reasons:
1. Maria Florentino having died in 1892, according to a finding of fact of the Court of Appeals, which we cannot review, Article 541 of the Civil Code is applicable to this case.
2. Granting, arguendo, that Maria Florentino died in 1885, nevertheless that same principle embodied in article 541 of the Civil Code was already an integral part of the Spanish law before the promulgation of
the Civil Code in 1889, and therefore, even if the instant case should be governed by the Spanish law prior to the Civil Code, the easement in question would also have to be upheld.
3. The easement under review has been acquired by respondents through prescription.
4. The petitioner was not an innocent purchaser, as he was in duty bound to inquire into the significance of the windows.
5. Justice and public policy are on the side of the respondents.
Wherefore, the judgment appealed from should be and is hereby affirmed, with costs against the petitioner. So ordered.
Yulo, C. J., Moran Imperial, 1 and Havtiveras, 1 JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 90596 April 8, 1991

SOLID MANILA CORPORATION, petitioner,
vs.
BIO HONG TRADING CO., INC. and COURT OF APPEALS, respondents.
Balgos & Perez for petitioner.
Alfredo G. de Guzman for private respondent.

SARMIENTO, J.: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.

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 plaintiffs motion for summary judgment. (pp. 15-107, Record). 5
On January 19, 1987, the trial court rendered judgment against the private respondent, the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered making permanent the temporary mandatory injunction, that had been issued against the defendant, and for the defendant to pay the plaintiff the
costs of this suit.
The defendant's counterclaim against the plaintiff is hereby dismissed, for lack of merit. (Summary Judgment, p. 6). 6
The private respondent appealed to the respondent Court of Appeals.
Meanwhile, the private respondent itself went to the Regional Trial Court on a petition for the cancellation of the annotation in question. The court granted cancellation, for which the petitioner instituted CA-G.R. SP
No. 13421 of the respondent Court of Appeals which ordered the restoration of the annotation "without prejudice [to] the final outcome of 7 the private respondent's own appeal (subject of this petition).
In reversing the trial court which had, as earlier mentioned, rendered summary judgment, the respondent Court of Appeals held that the summary judgment was improper and that the lower court erroneously ignored
the defense set up by the private respondent that the easement in question had been extinguished. According to the Appellate Court, an easement is a mere limitation on ownership and that it does not impair the private
respondent's title, and that since the private respondent had acquired title to the property, "merger" brought about an extinguishment of the easement.
The petitioner submits that the respondent Court of Appeals erred, because the very deed of sale executed between the private respondent and the previous owner of the property "excluded" the alley in question, and
that in any event, the intent of the parties was to retain the "alley" as an easement notwithstanding the sale.
As already stated at the outset, the Court finds merit in the petition.
There is no question that an easement, as described in the deed of sale executed between the private respondent and the seller, had been constituted on the private respondent's property, and has been in fact annotated
at the back of Transfer Certificate of Title No. 128784. Specifically, the same charged the private respondent as follows: "(6) That the alley shall remain open at all times, and no obstructions whatsoever shall be placed
thereon; (7) That the owner of the lot on which the alley has been constructed shall allow the public to use the same, and allow the City to lay pipes for sewer and drainage purposes, and shall not [ask] for any indemnity
for the use thereof. . ." 8 Its act, therefore, of erecting steel gates across the alley was in defiance of these conditions and a violation of the deed of sale, and, of course, the servitude of way.
The Court then is of the opinion that injunction was and is proper and in denying injunctive relief on appeal, the respondent Appellate Court committed an error of judgment and law.
It is hardly the point, as the Court of Appeals held, that the private respondent is the owner of the portion on which the right-of-way had been established and that an easement can not impair ownership. The petitioner
is not claiming the easement or any part of the property as its own, but rather, it is seeking to have the private respondent respect the easement already existing thereon. The petitioner is moreover agreed that the private
respondent has ownership, but that nonetheless, it has failed to observe the limitation or encumbrance imposed on the same
There is therefore no question as to ownership. The question is whether or not an easement exists on the property, and as we indicated, we are convinced that an easement exists.

It is true that the sale did include the alley. On this score, the Court rejects the petitioner's contention that the deed of sale "excluded" it, because as a mere right-of-way, it can not be separated from the tenement and
maintain an independent existence. Thus:
Art. 617. Easements are inseparable from the estate to which they actively or passively belong. 9
Servitudes are merely accessories to the tenements of which they form part. 10 Although they are possessed of a separate juridical existence, as mere accessories, they can not, however, be alienated
or mortgaged separately. 12

11

from the tenement,

The fact, however, that the alley in question, as an easement, is inseparable from the main lot is no argument to defeat the petitioner's claims, because as an easement precisely, it operates as a limitation on the title of the
owner of the servient estate, specifically, his right to use (jus utendi).
As the petitioner indeed hastens to point out, the deed itself stipulated that "a portion thereof [of the tenement] measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been converted into
a private alley for the benefit of the neighboring estates. . ." 13 and precisely, the former owner, in conveying the property, gave the private owner a discount on account of the easement, thus:
WHEREAS, to compensate for the foregoing, the parties hereto agreed to adjust the purchase price from THREE MILLION SEVEN HUNDRED NINETY THOUSAND FOUR HUNDRED
FORTY PESOS (P3,790,440.) to THREE MILLION FIVE HUNDRED THREE THOUSAND TWO HUNDRED FORTY PESOS (P3,503,240.00) 14
Hence, and so we reiterate, albeit the private respondent did acquire ownership over the property including the disputed alley as a result of the conveyance, it did not acquire the right to close that alley or
otherwise put up obstructions thereon and thus prevent the public from using it, because as a servitude, the alley is supposed to be open to the public.
The Court is furthermore of the opinion, contrary to that of the Court of Appeals, that no genuine merger took place as a consequence of the sale in favor of the private respondent corporation. According to the Civil
Code, a merger exists when ownership of the dominant and servient estates is consolidated in the same person. 15 Merger then, as can be seen, requires full ownership of both estates.
One thing ought to be noted here, however. The servitude in question is a personal servitude, that is to say, one constituted not in favor of a particular tenement (a real servitude) but rather, for the benefit of the general
public.
Personal servitudes are referred to in the following article of the Civil Code:
Art. 614. Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong. 16
In a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and the easement pertains to persons without a dominant estate, 17 in this case, the public at large.
Merger, as we said, presupposes the existence of a prior servient-dominant owner relationship, and the termination of that relation leaves the easement of no use. Unless the owner conveys the property in favor of the
public if that is possible no genuine merger can take place that would terminate a personal easement.
For this reason, the trial court was not in error in rendering summary judgment, and insofar as the respondent Court of Appeals held that it (the trial court) was in error, the Court of Appeals is in error.
Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issue as to the existence of a material fact, and the facts appear undisputed based on the pleadings, depositions, admissions,
and affidavits of record. 18 In one case, this Court upheld a decision of the trial court rendered by summary judgment on a claim for money to which the defendant interposed the defense of payment but which failed to
produce receipts. 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) (Emphasis supplied).
It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions,
points, or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein. (5 C.J.S. 1267) (Emphasis supplied.)
In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has remanded the cause for further action below, it will refuse to examine question other
than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has proceeded in substantial conformity to
the directions of the appellate court, its action will not be questioned on a second appeal.
As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether that decision is right or wrong, the remedy of the party deeming himself aggrieved being to
seek a rehearing. (5 C.J.S. 1276-77). (Emphasis supplied.)
Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of
the court, as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion. (5 C.J.S. 128687). (Emphasis supplied.) 24
CA-G.R. No. 13421 is the law of the case because clearly, it was brought to determine the rights of the parties regarding the easement, subject of the controversy in this case, although as a petition for "cancellation of
annotation" it may have, at a glance, suggested a different cause of action.
And for reasons of fair play, the private respondent can not validly reject CA-G.R. No. 13421 as the law of the case, after all, it was the one that initiated the cancellation proceedings with the Regional Trial Court in
LRC No. 273 that precipitated that appeal. In the second place, the proceedings for cancellation of annotation was in fact meant to preempt the injunction decreed by the lower court in this case. Plainly and simply, the
private respondent is guilty of forum-shopping, as we have described the term:
xxx xxx xxx
There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only
with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending, as in this case, in order to defeat
administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. This is specially so, as in this case, where the court in which the second suit was
brought, has no jurisdiction. 25
to which contempt is a penalty. 26
As it happened, in its effort to shop for a friendly forum, the private respondent found an unfriendly court and it can not be made to profit from its act of malpractice by permitting it to downgrade its finality and deny
its applicability as the law of the case.
As a personal servitude, the right-of-way in question was established by the will of the owner.

In the interesting case of North Negros Sugar Co., Inc. v. Hidalgo, 27 this Court, speaking through Justice Claro Recto, declared that a personal servitude (also a right of way in that case) is established by the mere "act" 28 of
the landowner, and is not "contractual in the nature," 29 and a third party (as the petitioner herein is a third party) has the personality to claim its benefits. In his separate opinion, however, Justice Jose Laurel maintained
that a personal or voluntary servitude does require a contract and that "[t]he act of the plaintiff in opening the private way here involved did not constitute an offer . . . " 30 and "[t]here being no offer, there could be no
acceptance; hence no contract." 31
The Court sees no need to relive the animated exchanges between two legal titans (they would contend even more spiritedly in the "larger" world of politics) to whom present scholars perhaps owe their erudition and
who, because of the paths they have taken, have shaped history itself; after all, and coming back to the case at bar, it is not disputed that an easement has been constituted, whereas it was disputed in North Negros' case.
Rather, the question is whether it is still existing or whether it has been extinguished. As we held, our findings is that it is in existence and as a consequence, the private respondent can not bar the public, by erecting an
obstruction on the alley, from its use.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is SET ASIDE and the decision of the Regional Trial Court is hereby REINSTATED. The petitioner and its counsel are hereby
required to SHOW 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.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 911

March 12, 1903

MAXIMO CORTES, plaintiff-appellant,

vs.
JOSE PALANCA YU-TIBO, defendant-appellant.
Felipe G. Calderon, for appellant.
Simplicio del Rosario, for appellee.
MAPA, J.:
This suit was brought to obtain an injunction, in accordance with the provisions of section 162 to 172 of the Code of Civil Procedure, for the purpose of restraining the continuation of certain buildings commenced by
the defendant. The court below issued a preliminary injunction during the trial, but, upon, rendering final judgment, dissolved the injunction, with the costs against the plaintiff. The latter excepted to this judgment and
assigns error:
In the trial the following facts were admitted without contradiction:
(1) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff, has certain windows therein, through which it receives light and air, said windows opening on the adjacent house, No. 63 of the same
street; (2) that these windows have been in the existence since the year 1843 and (3) that the defendant, the tenant of the said house No. 63, has commenced certain work with the view to raising the roof of the house in
such a manner that one-half of the windows in said house No. 65 has been covered, thus depriving the building of a large part of the air and light formerly received through the window. In its decision the court below
practically finds the preceding facts, and further finds that the plaintiff has not proven that he has, by any formal act, prohibited the owner of house No. 63, from making improvements of any kind therein at any time
prior to the complaint.

The contention of the plaintiff is that by the constant and uninterrupted use of the windows referred to above during a period of fifty-nine years he acquired from prescription an easement of light in favor of the house
No. 65, and as a servitude upon house No. 63, and, consequently, has acquired the right to restrain the making of any improvements in the latter house which might in any manner be prejudicial to the enjoyment of the
said easement. He contends that the easement of light is positive; and that therefore the period of possession for the purposes of the acquisition of a prescriptive title is to begin from the date on which the enjoyment of
the same commenced, or, in other words, applying the doctrine to this case, from the time that said windows were opened with the knowledge of the owner of the house No. 63, and without opposition on this part.
The defendant, on the contrary, contends that the easement is negative, and that therefore the time for the prescriptive acquisition thereof must begin from the date on which the owner of the dominant estate may have
prohibited, by a formal act, the owner of the servient estate from doing something which would be lawful but for the existence of the easement.
The court below in its decision held in the easement of light is negative, and this ruling has been assigned by the plaintiff as error to be corrected by this court.
A building may receive light in various manners in the enjoyment of an easement of light, because the openings through which the light penetrates may be made in one's own wall, in the wall of one's neighbor, or in a
party wall. The legal doctrine applicable in either one of these cases is different, owing to the fact that, although anyone may open windows in his own wall, no one has a right to do so in the wall of another without the
consent of the owner, and it is also necessary, in accordance with article 580 of the Civil Code, to obtain the consent of the other coowner when the opening is to be made in a party wall.
This suit deals with the first case; that is, windows opened in a wall belonging to the wife of the plaintiff, and it is this phase of the easement which it is necessary to consider in this opinion.
When a person opens windows in his own building he does nothing more than exercise an act of ownership inherent in the right of property, which, under article 348 of the Civil Code, empowers him to deal with his
property as he may see fit, with no limitations other than those established by law. By reason of the fact that such an act is performed wholly on a thing which is wholly the property of the one opening the window, it
does not in itself establish any easement, because the property is used by its owner in the exercise of dominion, and not as the exercise of an easement: "For a man," says law 13, title 31, third partida, "should not use that
which belongs to him as if it were a service only, but as his own property." Coexistent with this right is the right of the owner of the adjacent property to cover up such windows by building on his own land or raising a wall
contiguously to the wall in which the windows are opened (art. 581 of the same Code), by virtue of the reciprocity of rights which should exist between abutting owners, and which would cease to exist if one could do
what he pleased on his property and the other could not do the same on his. Hence it is that the use of the windows opened in a wall of one's own property, in the absence of some covenant or express agreement to the
contrary, is regarded as an act of mere tolerance on the part of the owner of the abutting property (judgments of the supreme court of Spain of the 17th of May, 1876; 10th of May, 1884; 30th of May, 1890), and does
not create any right to maintain the windows to the prejudice of the latter (judgment of the supreme court of Spain of the 13th of June, 1877). The mere toleration of such an act does not imply on the part of the
abutting owner a waiver of his right to freely build upon his land as high as he may see fit, nor does it avail the owner of the windows for the effects of possession according to article 1942 of the Civil Code, because it is
a mere possession at will. From all this it follows that the easement of light with respect to the openings made in one's own edifice does not consist precisely in the fact of opening them or using them, inasmuch as they
may be covered up at any time by the owner of the abutting property, and, as Manresa says in his commentaries on the Civil Code, "there is no true easement as long as the right to impede its use exists." The easement really
consists of in prohibiting or restraining the adjacent owner from doing anything which may tend to cut off or interrupt the light; in short, it is limited to the obligation of not impeding the light (ne luminibus officiatur). The
latter coincides in its effects, from this point of view, with the obligation of refraining from increasing the height of a building (altius non tollendi), which, although it constitutes a special easement, has for its object, at
times, the prevention of any interruption of the light enjoyed by the adjacent owner.
It will be readily observed that the owner of the servient estate subject to such easement is under no obligation whatsoever to allow anything to be done on his tenement, nor to do anything there himself, but is simply
restrained from doing anything thereon which may tend to cut off the light from the dominant estate, which he would undoubtedly be entitled to do were it not for the existence of the easement. If, then, the first
condition is that which is peculiar to positive easements, and the second condition that which is peculiar to negative easements, according to the definition of article 533 of the Civil Code, it is our opinion that the
easement of lights in the case of windows opened in one's own wall is of a negative character, and, as such, can not be acquired by prescription under article 538 of the Civil Code, except by counting the time of
possession from the date on which the owner of the dominant estate may, by a formal act have prohibited the owner of the servient estate from doing something which it would be lawful from him to do were it not for
the easement.
The supreme court of Spain, in its decisions upon this subject, has established these principles by a long line of cases. In its judgment of May 14, 1861, the said court holds that "the prescription of the easement of lights
does not take place unless there has been some act of opposition on the part of the person attempting to acquire such a right against the person attempting to obstruct its enjoyment." The easements of light and view,"
says the judgment of March 6, 1875, "because they are of a negative character, can not be acquired by a prescriptive title, even if continuous, or although they may have been used for more than twenty-eight years, if the
indispensable requisite for prescription is absent, which is the prohibition on the one part, and the consent on the other, of the freedom of the tenement which it is sought to charge with the easement." In its judgment
of June 13, 1877, it is also held that use does not confer the right to maintain lateral openings or windows in one's own wall to the prejudice of the owner of the adjacent tenement, who, being entitled to make use of the
soil and of the space above it, may, without restriction, build on his line or increase the height of existing buildings, unless he has been " forbidden to increase the height of his buildings and to thus cut off the light," and such
prohibition has been consented to and the time fixed by law subsequently expired. The court also holds that it is error to give the mere existence or use of windows in a wall standing wholly on the land of one proprietor
the creative force of true easement, although they may have existed from the time immemorial. Finally, the judgments of the 12th of November, 1899, and the 31st of May, 1890, hold that "as this supreme court has decided,
openings made in walls standing wholly on the land of one proprietor and which overlook the land of another exist by mere tolerance in the absence of an agreement to the contrary, and can not be acquired by
prescription, except by computing the time from the execution of some act of possession which tends to deprive the owner of the tenement affected of the right to build thereon." Various other judgments might be
cited, but we consider that those above mentioned are sufficient to demonstrate the uniformity of the decisions upon this point. It is true that the supreme court of Spain, in its decisions of February 7 and May 5, 1896,
has classified as positive easements of lights which were the object of the suits in which these decisions were rendered in cassation, and from these it might be believed at first glance that the former holdings of the
supreme court upon this subject had been overruled. But this is not so, as a matter of fact, inasmuch as there is no conflict between these decisions and the former decisions above cited.

In the first of the suits referred to, the question turned upon two houses which had formerly belonged to the same owner, who established a service of light on one of them for the benefit of the other. These properties
were subsequently conveyed to two different persons, but at the time of the separation of the property nothing was said as to the discontinuance of the easement, nor were the windows which constituted the visible sign
thereof removed. The new owner of the house subject to the easement endeavored to free it from the incumbrance, notwithstanding the fact that the easement had been in existence for thirty-five years, and alleged that
the owner of the dominant estate had not performed any act of opposition which might serve as a starting point for the acquisition of a prescriptive title. The supreme court, in deciding this case, on the 7th of February,
1896, held that the easement in this particular case was positive, because it consisted in the active enjoyment of the light. This doctrine is doubtless based upon article 541 of the Code, which is of the following tenor:
"The existence of apparent sign of an easement between two tenements, established by the owner of both of them, shall be considered, should one be sold, as a title for the active and passive continuance of the
easement, unless, at the time of the division of the ownership of both tenements, the contrary should be expressed in the deed of conveyance of either of them, or such sign is taken away before the execution of such
deed."
The word "active" used in the decision quoted in classifying the particular enjoyment of light referred to therein, presupposes on the part of the owner of the dominant estate a right to such enjoyment arising, in the
particular case passed upon by that decision, from the voluntary act of the original owner of the two houses, by which he imposed upon one of them an easement for the benefit of the other. It is well known that
easements are established, among other cases, by the will of the owners. (Article 536 of the Code). It was an act which was, in fact, respected and acquiesced in by the new owner of the servient estate, since he purchased
it without making any stipulation against the easement existing thereon, but, on the contrary, acquiesced in the continuance of the apparent sign thereof. As is stated in the decision itself, "It is a principle of law that
upon a division of a tenement among various persons -- in the absence of any mention in the contract of a mode of enjoyment different from that to which the former owner was accustomed -- such easements as may
be necessary for the continuation of such enjoyment are understood to subsist." It will be seen, then, that the phrase "active enjoyment" involves an idea directly opposed to the enjoyment which is the result of a mere
tolerance on the part of the adjacent owner, and which, as it is not based upon an absolute, enforceable right, may be considered as of a merely passive character. Therefore, the decision in question is not in conflict with
the former rulings of the supreme court of Spain upon the subject, inasmuch as it deals with an easement of light established by the owner of the servient estate, and which continued in force after the estate was sold, in
accordance with the special provisions of article 541 of the Civil Code.
Nor is the other decision cited, of May 5, 1896, in conflict with the doctrine above laid down, because it refers to windows opened in a party wall, and not in a wall the sole and exclusive property of the owner of the
dominant tenement, as in the cases referred to by the other decisions, and as in the case at bar. The reason for the difference of the doctrine in the one and the other case is that no part owner can, without the consent
of the other, make in a party wall a window or opening of any kind, as provided by article 580 of the Civil Code. The very fact of making such openings in such a wall might, therefore, be the basis for the acquisition of a
prescriptive title without the necessity of any active opposition, because it always presupposes the express or implied consent of the other part owner of the wall, which consent, in turn, implies the voluntary waiver of
the right of such part owner to oppose the making of such openings or windows in such a wall.
With respect to the provisions of law 15, title 31, third partida, which the appellant largely relied upon in this oral argument before the court, far from being contrary to it, is entirely in accord with the doctrine of the
decisions above referred to. This law provides that "if anyone shall open a window in the wall of his neighbor, through which the light enters his house," by this sole fact he shall acquire a prescriptive title to the
easement of light, if the time fixed in the same law (ten years as to those in the country and twenty years as to absentees) expires without opposition on the part of the owner of the wall; but, with the exception of this
case, that is to say, when the windows are not opened in the wall of the neighbor, the law referred to requires as a condition to the commencement of the running of the time for the prescriptive acquisition of the
easement, that "the neighbor be prohibited from raising his house, and from thereby interrupting the light." That is to say, he must be prohibited from exercising his right to build upon his land, and cover the window of
the other. This prohibition, if consented to, serves as a starting point for the prescriptive acquisition of the easement. It is also an indispensable requisite, therefore, in accordance with the law of the partidas, above
mentioned, that some act of opposition be performed, in order that an easement may be acquired with respect to openings made in one's own wall.
For a proper understanding of this doctrine, it is well to hold in mind that the Code of the partidas, as well as the Roman law, clearly distinguishes two classes of easements with respect to the lights of houses, as may be
seen in law 2 of title 31, of the third partida. One of them consists in "the right to pierce the wall of one's neighbor to open a window through which the light may enter one's house" (equivalent to the so-called easement
of luminum of the Romans); the other is "the easement which one house enjoys over another, whereby the latter can not at any time be raised to a greater height than it had at the time the easement was established, to the
end at the light be not interrupted." (Ne luminibus officiatur.) For the prescriptive acquisition of the former the time must begin, as we have seen, from the opening of the window in the neighbor's wall. As to the second, the
time commences from the date on which he was "prevented from raising his house." Some of the judgments which establish the doctrine above laid down were rendered by the supreme court of Spain interpreting and
applying the above cited law 15, title 31, partida 3, and therefore they can not in any sense be regarded as antagonistic to the law itself.
The question as to whether the windows of the house of the plaintiff are, or are not, so-called regulation windows, we consider of but little importance in this case, both because the authority of the decisions of the law
of thepartidas, above cited, refers to all kinds of windows, and not to regulation windows solely, and because the record does not disclose, nor has the appellant even stated, the requirements as to such regulation
windows under the law in operation prior to the Civil Code, which he asserts should be applied and on which he relies to demonstrate that he has acquired by prescription the easement in question. With respect to the
watershed which, according to the plaintiff, exists over the window in question, the record does not disclose that the same has been destroyed by the defendant. He expressly denies it on page 7 of his brief, and affirms
(p. 8) that the tenant of the appellant's property himself removed it, by reason of the notice served on him; on the other hand, the judgment of the court below contains no findings with respect to this fact, nor does it
disclose the former existence of any such watershed. Furthermore, the opinion which we have formed with respect to this matter, in so far as we are able to understand the merits of the case, is that this shed was a mere
accessory of the window, apparently having no other purpose than that of protecting it against the inclemency of the weather; this being so, we are of opinion that it should follow the condition of the window itself, in
accordance with the legal maxim that the accessory always follows the principal. The appellant contends that the shed should be regarded as a projection within the provisions of article 582 of the Code; but it is
sufficient to observe that this article speaks of windows with direct views, balconies, or similar projections, in order to conclude that the article does not refer to such watersheds, which have not the slightest degree of
similarity to balconies, nor are they constructed for the purpose of obtaining the view -- this being the subject-matter which this article expressly purports to control -- inasmuch as such sheds have rather the effect of
limiting the scope of the view than of increasing it.

The fact that the defendant did not cover the windows of the other house adjacent No. 63 at the time he covered the windows of the appellant, a fact which the latter adduces as proof of the recognition on the part of
the former of the prescriptive acquisition of the easement of the light in favor of that house, which, according to his statement, is under precisely the same conditions as the house of the plaintiff, does not necessarily
imply, in our opinion, any such recognition, as it might be the result of a mere tolerance on the part of the defendant. Certainly the fact of his tolerating the use by the owner of that house of such windows, supposing
the facts to be as stated, does not carry with it as a result an obligation to exercise the same forbearance with respect to the plaintiff; but whatever may be the legal status of the windows in the house referred to with
respect to the house No. 63, we cannot pass upon the point, nor can we form suppositions concerning the matter for the purpose of drawing conclusions of any kind therefrom to support our opinion, for the simple
reason that it is not a point at issue in the case, and more especially because the defendant not only denied the existence of the alleged easement of light in favor of the house referred to, but, on the contrary, he affirms
that demand has been made that the windows in said house be closed, as may be seen on page 8 of his brief.
The point discussed in this trial being whether the plaintiff has acquired the easement which he seeks to enforce over the house of which the defendant is tenant, it is evident that the provisions of article 585 of the Civil
Code can not be invoked without taking for granted the very point at issue. This article refers to cases in which, under any title, the right has been acquired to have direct views, balconies, or belvederes over contiguous
property. The existence of such a right being the very point at issue, the supposition upon which the article rests is lacking, and it is therefore not in point.
As a result of the opinion above expressed, we hold:
1. That the easement of light which is the object of this litigation is of a negative character, and therefore pertains to the class which can not be acquired by prescription as provided by article 538 of the Civil Code,
except by counting the time of possession from the date on which the owner of the dominant estate has, in a formal manner, forbidden the owner of the servient estate to do an act which would be lawful were it not for
the easement.
2. That, in consequence thereof, the plaintiff, not having executed any formal act of opposition to the right of the owner of the house No. 63 Calle Rosario (of which the defendant is tenant), to make therein
improvements which might obstruct the light of the house No. 65 of the same street, the property of the wife of the appellant, at any time prior to the complaint, as found by the court below in the judgment assigned as
error, he has not acquired, nor could he acquire by prescription, such easement of light, no matter how long a time have elapsed since the windows were opened in the wall of the said house No. 65, because the period
which the law demands for such prescriptive acquisition could not have commenced to run, the act with which it must necessarily commence not having been performed.
Therefore, we affirm the judgment of the court below and condemn the appellant to the payment of all damages caused to the plaintiff, and to the payment of the costs of this appeal. So ordered.
Arellano, C.J., Cooper, Willard, and Ladd, JJ., concur.
Torres, J., did not sit in this case.

ON MOTION FOR A REHEARING.

The plaintiff asks for a rehearing of the decision of the court of March 12th last upon the ground that the same contains error:
First, because the decision holds that the window opened in the plaintiff's own wall and watershed do not constitute the continuous and apparent easements of prospect, light, and ventilation, or jus projitiendi and jus
spillitiendi, this ruling being in opposition to the provisions of laws 12, 14, and 15, title 31, third partida, and articles 530, 532, 533, 537, 538, 582, and 585 of the Civil Code.
This allegation is entirely unfounded, inasmuch as the decision of the court contains no declaration as to whether the windows and watershed do or do not constitute continuous and apparent easements, or jus
projitiendi and jus spillitiendi. These questions were not drawn into issue by the complaint, and therefore any decision thereon one way or the other would have been mere dicta. What the court did hold was that the
easement of light, when it is sought to claim such benefit from a window opened in one's own wall, as does the appellant with respect to the tenement of the defendant, belongs to the class of negative easements, and
that on hold on that account the time of possession for prescriptive acquisition of the title thereto must be counted, not from the time of the opening of the windows, but from the time at which the owner thereof has
executed some act of opposition tending to deprive the owner of the servient tenement of his right, under the law, build upon it to such height as he might see fit in the legitimate use of his rights of ownership. With
respect to the watershed, the court held that the shed in question in the case is not included within the class of projections referred to in article 582 of the Civil Code, and certain it is that neither this article nor any of
the other provisions of law cited by the appellant in his motion papers established any doctrine contrary to that laid down in the decision, either with regard to the watershed or with respect to the windows. It is not
necessary to say anything further upon this point. It is sufficient to read the text of the laws cited to reach the conclusion that the assertion made by the appellant in his motion papers is entirely gratuitous.
Article 582 provides that windows with direct views, balconies, or other similar projections opening upon the tenement of one's neighbor are not permissible unless there are two meters distance between the wall in
which such openings are constructed and the adjacent tenement. From this the appellant draws the conclusion that he who opens windows in his own wall without respecting the distance mentioned does not exercise an
act of ownership, as stated in the decision, inasmuch as he violates an express provisions of the law.

The conclusion reached is evidently false. The appellant confounds the facts with the law -- an act of ownership with the right of ownership. The owner of a thing does not cease to be such owner because in his manner
of use or enjoyment thereof he violates some provision of law. The acts which he performs, in our opinion, even if abusive or contrary to law, are in a strict sense acts of ownership, acts in the exercise of dominion,
because this character is not derived from a greater or less degree of compliance with the provisions of law, but from the existence of the status of owner on the part of the person who exercises such acts. In order that
the act performed by the owner of a wall in opening windows therein be a true act of ownership it is a matter of indifference whether or not the distance prescribed by article 582 of the Code has been respected,
although, considered from a legal point of view, it might be an illegal act, as not complying with the conditions imposed by law.
The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to the effect that "a man should not use that which belongs to him as if it were a service only, but as his own property" is of general application,
and does not refer to the easements which is a property owner may establish for the benefit of his heirs, as is erroneously believed by the appellant. The very same law provides that easements which "a man imposes
upon his house must be for the benefit of the tenement or thing of another, and not that of his own tenement;" and this is because things are of service to their owner by reason of dominion, and not in the exercise of a
right of easement. "Res sua," says a legal maxim, "nemini jure servitutis servit."
The provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated procedure no effect with respect to possession is applicable as much as to the prescription of real rights as to the
prescription of the fee, it being a glaring and self-evident error to affirm the contrary, as does the appellant in his motion papers. Possession is the fundamental basis of the prescription. Without it no kind of
prescription is possible, not even the extraordinary. Consequently, if acts of mere tolerance produce no effect with respect to possession, as that article provides, in conformity with article 444 of the same Code, it is
evident that they can produce no effect with respect to prescription, whether ordinary or extraordinary. This is true whether the prescriptive acquisition be of a fee or of real rights, for the same reason holds in one and
the other case; that is, that there has been no true possession in the legal sense of the word. Hence, it is because the use of windows in one's own wall is the result of a mere tolerance that the supreme court of Spain, in
its judgment of June 13, 1877, has held that such user lacks the creative force of a true easement, although continued from time immemorial. The citation of article 1959 of the Civil Code and of law 21, title 29, partida 3,
made by the petitioner, is therefore not in point, because both of these provisions of law, which refer to the extraordinary period of prescription presuppose possession as a necessary requisite, even if without either just
title or good faith.
The second error assigned is that in the decision the court holds that the gravamina constituted by the window and the projection are negative easements, against the provisions of article 533, which define them as
positive, which definition, he adds, is supported by the judgments of the supreme court of Spain of February 7 and May 5, 1896, cited in paragraph 12 of the said decision, which judgments declare that the easement
resulting from a window is positive.
It is not true that article 533 of the Civil Code says that the easement of light is positive, because it does nothing more than give in general terms the definition of positive easements and negative easements, without
attempting to specify whether the easement of lights pertains to the first or to the second class. We have declared that the easement is negative, having in mind this very definition of the Code and the doctrine
established by the judgments of the supreme court of Spain which have been cited in our opinion. The interpretation which the appellant attempts to give the article of the Civil Code cited is evidently erroneous and,
consequently, the citation made by him in support of his contention is not in point.
Our opinion of the true extent and meaning of the judgments of the supreme court of Spain of February 7 and May 5, 1896, has been already sufficiently explained, and it is therefore unnecessary to go into the subject
again here. We refer to our decision with respect to what was said therein upon this subject.
The decision of the court does not contain the declaration, as gratuitously assumed by the appellant, that the easement resulting from a projection is of a negative character; nor, in fact, had we any occasion to make such
a declaration, in view of the nature of the issues raised and discussed during the trial. What we did, indeed, hold was that the watershed mentioned in the complaint, the purpose of which was simply to protect the window
in question from sun and rain, was a mere accessory to that window, and that in no case could it be considered as a projection within the provisions of article 582 of the Civil Code, as so erroneously contended by the
appellant at the trial. We find nothing in his motion papers which can in any way weaken this holding.
The third error is assigned is that the court holds that the easement of light, as negative, can not be acquired by prescription except by counting the period of possession from the time at which the owner of the servient
tenement has been prohibited from making improvements which might interfere with said easement, contrary to the provisions of law 14, title 31, partida 3, and articles 538 and 585 of the Civil Code, which establish the
contrary.
This assertion is entirely destitute of foundation, inasmuch as neither in the law of the partidas nor in the articles of the Civil Code mentioned is to be found the doctrine which the appellant arbitrarily seeks to deduce
from them. It is sufficient to read the text to reach the conclusion that the assertion is wholly gratuitous.
The fourth error assigned is that the court holds that the watershed, as being an accessory of the window, can not in itself constitute an easement, this being contrary to the provisions of articles 582 and 585 of the Civil
Code, and law 2, title 31, partida 3, which do not make any such distinction.
Neither of the law cited speaks expressly of watersheds. We have held that article 582 refers solely to windows, balconies, and other similar projections, and that the watershed in question does not pertain to this class of
projections, our holding being based upon the reasons given in our decision. The appellant advances no argument worthy of serious consideration, and therefore we continue to believe that our opinion in this matter is
strictly in accordance with the law.

The appellant has attached to his motion for a rehearing two judgments, one rendered by the Royal Audiencia of Manila September 6, 1877, and the other by the supreme court of Spain on the 22d of February, 1892,
and we think it well to say a few words concerning them.
In the opinion of the appellant these judgments support the theory contended for by him at the trial, that the easement of lights is positive and not negative. His error in so believing is evident, inasmuch as neither of the
judgments referred to establishes any such doctrine. On the contrary, it appears clear, from the first of these judgments, that the easement referred to is negative in the opinion of the court which rendered it. This
appears from the eight conclusion of law therein, which is literally as follows: "From the evidence introduced by the defendant, and even from the testimony of witnesses of the plaintiff, it has been proven that since
1828 the house in question has suffered no change or alteration in its roof, which projects over Cosio's lot, which constitutes the active opposition necessary in order to acquire by prescription the right to the light." It will be seen, then,
that the latter part of the preceding transcript of the conclusion of law days down precisely the same doctrine as that expressed in our decision -- that active opposition is a necessary condition for prescriptive acquisition
of an easement of light. And this also demonstrates conclusively that the court which rendered the judgment referred to considered the easement to be negative, inasmuch as positive easements do not require any active
opposition as a basis for their prescriptive acquisition, such an act being solely necessary to the prescription of negative easements.
It would appear, judging from his allegations as a whole, that the appellant confuses positive easements with continuous easements, and the judgments referred to, in fact, declares in its fourth conclusion of law that the
easement of light is continuous. If these were really so the error of the appellant would be manifest, because continuity is not a quality exclusively peculiar to positive easements; there are negative easements which are
also continuous. Hence if is that the Civil Code, after classifying easements, in article 532, as continuous and discontinuous, classifies them also as positive and negative (art. 533), thus giving to understand that this latter
classification depends upon other characteristics entirely distinct from the continuity or discontinuity of easements. If all continuous easements were positive and all discontinuous easements were negative, then the
express division of easements into positive and negative made by the Code, after establishing the division of the same as continuous or discontinuous, would be entirely unnecessary, as they would be entirely merged or
included in the latter classification. It is sufficient to read the text of the Code to understand beyond the possibility of a doubt that a negative easement may be continuous, and that a positive easement may be
discontinuous, according to the special nature of each one.
With respect to the second judgment -- the judgment of the supreme court of Spain of February 22, 1892 -- it is certainly difficult to understand how the appellant could have imagined that he had found therein the
slightest ground for his contention, inasmuch as it lays down no doctrine which relates even inference to the subject of easements, and simply holds, in the first of only two paragraphs in which its conclusions are
contained, that "judgments should be clear, precise, and responsive to the complaint and the issues properly raised at the trial;" and in the second, that "the judgment appealed was contradictory as to the questions it
decides, because it makes certain declarations favorable to some of the contentions in the plaintiff's complaint and then gives judgment for the defendant, without making any distinction." It was for this reason alone,
and for no other, that the judgment appealed was reversed and annulled. In the judgment rendered by the same supreme court upon the merits of the case, as a result of this decision in cassation, no other doctrine is laid
down than that "the judgment must be that the defendant comply with those claims advanced by the complaint to which he was consented, and that he must be discharged as to those allegations which have been denied
by him and which have not been proved by the plaintiff."
There is not one word on these judgments which says that the easement of lights is positive, nor that a watershed constitutes a true projection within the meaning attached to this word in article 582 of the Civil Code, as
has been vainly contended by the appellant in the trial.
Therefore the appellant's motion for a rehearing of the decision of March 12, 1903, is denied.
Arellano, C.J., Cooper, Willard and Ladd, JJ., concur.
Torres and McDonough, JJ., did not sit in this case.

ON MOTION FOR WRIT OF ERROR TO REMOVE THE CASE TO THE SUPREME COURT OF THE UNITED STATES.
WILLARD, J.:
The application to this court for the allowance of a writ of error or appeal for the purpose of removing this case to the Supreme Court of the United States is denied.
Section 10 of the act of Congress of July 1, 1902, is as follows:
SEC. 10. That the Supreme Court of the United States shall have jurisdiction to review, revise, reverse, modify, or affirm the final judgments and decrees of the Supreme Court of the Philippine Islands in all
actions, cases, causes, and proceedings now pending therein or hereafter determined thereby in which the Constitution or any statute, treaty, title, right, or privilege of the United States is involved, or in causes
in which the value in controversy exceeds twenty-five thousand dollars, or in which the title or possession of real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained by the
oath of either party or of other competent witnesses, is involved or brought in question; and such final judgments or decrees may and can be reviewed, revised, reversed, modified, or affirmed by said Supreme

Court of the United States on appeal or writ of error by the party aggrieved, in the same manner, under the same regulations, and by the same procedure, as far as applicable, as the final judgments and decrees
of the circuit courts of the United States.
There is no question in the case relating to the Constitution or any statute of the United States. The evidence submitted by the applicant shows that the value of his property over which the litigation turns is $11,867.70,
money of the United States.
The fact that the plaintiff owns other houses in different parts of the city as to which he claims an easement of light similar to the one claimed in this case, that the decision in this case destroys all of these claimed
easements, and that the value of those other houses exceeds $25,000, gold, is not important. The test is the value of the matter in controversy. The matter in controversy here was the easement of light and air over the
property No. 63 Calle del Rosario and in favor of house No. 65. That easement could not be worth more than the house itself.
The easements in favor of other houses of the plaintiff over other lots than No. 63 were not in controversy in this suit. (Town of Elgin vs. Marshall, 106 U. S., 578.) So ordered.
Arellano, C.J., Torres, Cooper, Mapa and Ladd, JJ., concur.
McDonough, J., did not sit in this case.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-14652

June 30, 1960

JUAN GARGANTOS, petitioner,

vs.
TAN YANON and THE COURT OF APPEALS, respondents.
Jose T. Nery for petitioner.
Constantino P. Tadena for respondents.
GUTIERREZ DAVID, J.:
Juan Gargantos appeals by certiorari from the decision of the Court of Appeals reversing the judgment of the Court of First Instance of Romblon.
The record discloses that the late Francisco Sanz was the former owner of a parcel of land containing 888 square meters, with the buildings and improvements thereon, situated in the poblacion of Romblon. He
subdivided the lot into three and then sold each portion to different persons. One portion was purchased by Guillermo Tengtio who subsequently sold it to Vicente Uy Veza. Another portion, with the house of strong
materials thereon, was sold in 1927 to Tan Yanon, respondent herein. This house has on its northeastern side, doors and windows over-looking the third portion, which, together with the camarin and small building
thereon, after passing through several hands, was finally acquired by Juan Gargantos, petitioner herein.
On April 23, 1955, Gargantos applied to the Municipal Mayor for a permit to demolish the roofing of the oldcamarin. The permit having been granted, Gargantos tore down the roof of the camarin. On May 11, 1955,
Gargantos asked the Municipal Council of Romblon for another permit, this time in order to construct a combined residential house and warehouse on his lot. Tan Yanon opposed approval of this application.
Because both the provincial fiscal and district engineer of Romblon recommended granting of the building permit to Gargantos, Tan Yanon filed against Gargantos an action to restrain him from constructing a building
that would prevent plaintiff from receiving light and enjoying the view trough the window of his house, unless such building is erected at a distance of not less than three meters from the boundary line between the lots
of plaintiff and defendant, and to enjoin the members of Municipal Council of Romblon from issuing the corresponding building permit to defendant. The case as against the members of the Municipal Council was
subsequently dismissed with concurrence of plaintiff's council. After trial, the Court of First Instance of Romblon rendered judgment dismissing the complaint and ordering plaintiff to pay defendant the sum of
P12,500.00 by way of compensatory, exemplary, moral and moderate damages.

On appeal, the Court of Appeals set aside the decision of the Court of First Instance of Romblon and enjoined defendant from constructing his building unless "he erects the same at a distance of not less than three
meters from the boundary line of his property, in conformity with Article 673 of the New Civil Code."
So Juan Gargantos filed this petition for review of the appellate Court's decision. The focal issue herein is whether the property of respondent Tan Yanon has an easement of light and view against the property of
petitioner Gargantos.
The kernel of petitioner's argument is that respondent never acquired any easement either by title or by prescription. Assuredly, there is no deed establishing an easement. Likewise, neither petitioner nor his
predecessors-in-interest have ever executed any deed whereby they recognized the existence of the easement, nor has there been final judgment to that effect. Invoking our decision in Cortes vs. Yu-Tibo (2 Phil., 24),
petitioner maintains that respondent has not acquired an easement by prescription because he has never formally forbidden petitioner from performing any act which would be lawful without the easement, hence the
prescriptive period never started.
It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and the doctrine in the Yu-Tibo case are not applicable herein because the two estates, that now owned by petitioner, and that owner by
respondent, were formerly owned by just one person, Francisco Sanz. It was Sanz who introduced improvements on both properties. On that portion presently belonging to respondent, he constructed a house in such a
way that the northeastern side thereof extends to the wall of the camarin on the portion now belonging to petitioner. On said northeastern side of the house, there are windows and doors which serve as passages for light
and view. These windows and doors were in existence when respondent purchased the house and lot from Sanz. The deed sale did not provide that the easement of light and view would not be established. This then is
precisely the case covered by Article 541, O.C.C (now Article 624, N.C.C) which provides that the existence of an apparent sign of easement between two estates, established by the proprietor of both, shall be
considered, if one of them is alienated, as a title so that the easement will continue actively and passively, unless at the time the ownership of the two estate is divided, the contrary is stated in the deed of alienation of
either of them, or the sign is made to disappear before the instrument is executed. The existence of the doors and windows on the northeastern side of the aforementioned house, is equivalent to a title, for the visible
and permanent sign of an easement is the title that characterizes its existence (Amor vs. Florentino, 74 Phil., 403). It should be noted, however, that while the law declares that the easement is to "continue" the easement
actually arises for the first time only upon alienation of either estate, inasmuch as before that time there is no easement to speak of, there being but one owner of both estates (Articles 530, O.C.C., now Articles 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 his 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.
Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., and Barrera, JJ.,concur.