G.R. No.

72837 April 17, 1989

ESTER JAVELLANA, ROLANDO DEMAFILES, CESAR CRUZADA and ANTONIO SISON, petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT, 4th CIVIL CASES DIVISION, MARSAL & CO., INC., and MARCELINO
FLORETE, SR., respondents.

PARAS, J.:

Before Us is a Petition for certiorari to review the Decision 1 dated August 14,1985 promulgated by respondent Intermediate
Appellate Court in AC-G.R. C.V. No. 03781 which set aside the decision 2 rendered by the Regional Trial Court, 6th Judicial
Region, Branch XXVI, Iloilo City, dated December 15, 1983 in Civil Case No. 12791.

The case at bar arose from a complaint for recovery of damages filed by Marsal & Co., Inc. and Marcelino Florete, Sr. (private
respondents herein) against defendants Jose C. Hernani, Ester J. Javellana, Rolando Demafiles, Cesar Crusada and Antonio
Sison for allegedly denying plaintiffs' access to, and use of a canal leading to plaintiffs' property and to enjoin the City Mayor
and City Engineer of Iloilo City from demolishing the existing structures within plaintiffs property serving as dike entrance gate
to said canal situated at Barangay Navais, Mandurriao, Iloilo City. Before the pre-trial conference the complaint as against the
City Mayor and City Engineer, was dismissed at the instance of plaintiffs on the ground that said defendants had agreed not to
demolish the pendency of the action.

At the pre-trial conference, on June 5,1979 the parties stipulated:

... (1) that plaintiff Marsal & Co., Inc., is presently the owner of the parcel of land adjoining the Iloilo River up to and adjacent
the lot where the L. Borres Elementary School is located at Barangay Navais Mandurriao, Iloilo; (2) that in 1961, when
Marcelino Florete, Sr. was still the owner of said Marsal property having acquired the same by purchase from its former
owners sometime in 1959, there existed a main canal from the Iloilo River cutting across said property towards the lot where
the said school is located and thru a canal that traverses the school premises going towards Lot 2344; (3) that sometime in
July 1978, plaintiffs closed the dike entrance of the main canal to the canal running across the L. Borres Elementary School
premises to Lot 2344; (4) that on petition of school P.T.A. officials of Barangay Navais, an ocular inspection of the premises
was made as a result of which a report dated November 7, 1978 was prepared and submitted by 2nd Asst. City Fiscal Serafin
Abogado; (5) that before 1971, there were no houses standing within the school compound and premises of L. Borres
Elementary School; (6) that at present, there are 15 to 16 houses in the said school compound one of which is the house of the
barangay captain of Barangay Navais; (7) that some of those who signed the petition (Exh. "7") are not residents or occupants
of the houses within the school compound; (8) that the photograph (Exh. "A") is the aerial photograph of the premises in
question showing the location of the L. Borres Elementary School, the properties of the plaintiffs, the Iloilo River and the Borres
property; (9) that the plaintiffs had demolished the dike connecting the main canal in plaintiffs' property with the canal running
thru the school premises toward 2344; and (10) that defendant Director Jose C. Hernani had invited plaintiff Marcelino Florete,
Sr. for conference concerning the complaint of the residents of Barangay Navais on July 28, and 31, 1978 as per Exhs. "9" and
"10" (pp. 35-36, Rollo)

The issues as defined by the parties are:

(1) Whether or not them main canal and the canal traversing the premises of the L. Borres Elementary School going towards
Lot 2344 existing only beginning 1961 as claimed by the plaintiffs or since time immemorial as contended by the defendants;
(2) Whether or not it was plaintiff Marcelino Florete, Sr. who had constructed the main canal as well as the canal running thru
the premises of the L. Borres Elementary School to Lot 2344; (3) Whether or not the closing of the dike entrance connecting
the main canal with the canal running thru the school premises caused the flooding of the premises of L. Borres Elementary
School and its vicinity; (4) whether or not an easement or servitude of water-right-of-way was constituted on the property of the
plaintiffs as servient estate in favor of the L. Borres Elementary School land and nearby lands as dominant estates; (5)
Whether or not defendants acted in their respective private or official capacities in dealing with the problem related to the
canals in question; (6) Whether or not the defendant Ester Javellana had denied plaintiffs the use of the canal running from the
main canal thru the school premises to Lot 2344 of the plaintiffs; (7) Whether or not the demolition or closure by plaintiffs of the
entrance-dike connecting the main canal with the canal running thru the L. Borres Elementary School preventing the free flow
of water to and from the school premises and vicinity violates the provisions of Presidential Decree 296; and (8) Whether or not
either party may be held liable to the other for damages. (Rollo, pp. 35-37)

After due trial, judgment was rendered by the trial court, the dispositive portion reading as follows:
WHEREFORE, judgment is hereby rendered dismissing plaintiffs' complaint.

On defendants' counterclaim, the plaintiffs are hereby ordered to restore and reopen the dike entrance connecting the main
canal with the canal running thru the premises of L. Borres Elementary School and to demolish any and all structures within
plaintiffs' property that impede the free flow of water to and from the Iloilo River thru the said canals.

Further, plaintiffs Marsal & Co., Inc. and Marcelino Florete, Sr. are hereby ordered to pay, jointly and severally, each of the
defendants, Jose C. Hernani, Ester J. Javellana, Rolando Demafiles, Cesar Cruzada and Antonio Sison, the following sums, to
wit: (1) P10,000.00 for moral damages and (2) P2,500.00 for exemplary damages and (3) P2,500.00 for and as attorney's fees
of the total sum of P15,000.00 each, plus costs.

SO ORDERED.

(P. 46, Rollo)

Not satisfied with said judgment, plaintiffs appealed to the Intermediate Appellate Court which rendered the assailed decision,
its dispositive portion stating as follows:

WHEREFORE, finding the decision appealed from not consistent with the facts and the law applicable, the same is hereby set
aside and another one entered-

1. Granting the issuance of the writ of preliminary injunction sought in the complaint to become permanent upon the finality of
this decision;

2. Ordering the defendants-appellees to respect plaintiffs' rights and to refrain from demolishing and/or causing the demolition
of the dikes built by plaintiff (Florete, Sr.) on his property;

Costs de oficio.

SO ORDERED. (pp. 57-58, Rollo)

Petitioners contend that the decision of the Appellate Court is contrary to law, its conclusions based entirely on speculations
and conjectures and there is grave abuse of discretion in that the findings of fact are without competent evidence to support
them. Petitioners argue that the respondent Appellate Court erred in holding:

That the canal in question was built by plaintiff-appellant purposely to make water available to its own Lot 2344. (Decision, p.
8)

II

That the plaintiff-appellant is the one that has the right of easement upon the lot occupied by the barrio school.
Plaintiff-appellant is thus the dominant estate and not the L. Borres Elementary School. (Decision, p. 8)

III

That the school, in violation of the said easement, allowed other parties to use the canal for salt production in competition with
the salt business of plaintiff-appellant which is conducted in Lot 2344. (Decision, p. 8)

IV

That the canal which traverses plaintiff's property never benefitted the school. It was only after plaintiff built the canal starting
from its fishpond up to its other property that the school benefited from the water coming from the river. (Decision, p. 10)

V
That aside from the plaintiff's property there is another parcel of land which is more than adequate to provide the drainage
sought by the defendants and this is the Borres property. (Decision, p. 10)

The petition is worthy of consideration. In the Appellate Court's decision, it is noted that said court relied heavily on the findings
of facts of the trial court even to the extent of quoting such findings in its decision in support of its ruling. However, the
conclusions reached by both courts were different. Petitioners now question the correctness of the conclusions drawn by the
respondent Court of Appeals from the proven facts enumerated by the trial court. This determination as to the correctness of
the conclusions drawn from the pleadings is a question of law which this Court is authorized to pass upon. There is no question
of fact here because the facts are admittedly proven. Said facts are reproduced hereunder:

The Court finds from the evidence that the main canal had been in existence long before defendant Marcelino Florete, Sr.
acquired ownership of the land thru which the same passes from the Iloilo River up to the premises of what is now known as
the L. Borres Elementary School. This fact was clearly brought to light by the testimonies of at least three witnesses, including
a member of the Maranon family from whom Florete, Sr. acquired the land, in addition to the testimony of defendant Antonio
Sison, Barangay Captain of Barangay Navais where the subject canal is situated.

The Court, indeed, finds no reason to doubt the testimonies of these witnesses not only because they ring true throughout but
also because the same emanate from reliable sources who had been actual residents of the place, having had occasions to
take their bath in the same canal and with separate individual experiences incident thereto to relate.

Severo Maranon, a public school teacher and one of the children of the late Buenaventura Maranon, a co-owner of the
fishpond purchased by plaintiff Florete, Sr. testified that as early as 1948, when he was about 6 years old, he already knew the
subject canal that passes thru their fishpond at Barangay Navais from the Iloilo River towards the premises of the school. On
one occasion in 1954, while taking a bath in this canal when still a young boy, he nearly drowned, reasons for which he has not
forgotten the said canal.

Another witness, Ignacio Gencianeo, 75, a former employee of the Bureau of Public Highways, testified that when he was still
single, being a resident of Barangay Navais, he used to take a bath in the canal near the Iloilo River which is deeper than the
other portions. He recalled an incident where a woman, named Toribia Tajaon, while picking shells at the sides of the dikes,
fell into the canal and nearly got drowned had he not helped her. He last took a bath in the canal in 1937 before he got
employed at the Bureau of Public Highways.

Witness Gencianeo also testified that he was then the Barrio Captain of Navais when the Barrio School was constructed in
1940 on the land owned by Lucas Borres.

Francisco Regacho, 56, testifying for the defendants, declared that in 1948, his house was located beside the canal near the
Iloilo River and the land thereat was then owned by Buenaventura Maranon. When the barrio school was constructed in 1940,
he worked filling sand on the school site. He was able to lease the school fishpond from 1973 to 1977. This fishpond draws its
supply of salt water from the canal coming from the Iloilo River. He had previously worked this main canal in 1948 as part of his
job in the fishpond of Buenaventura Maranon fixing its dikes in order to make water flow freely towards the fishpond of the
Maranon family.

Witness Regacho further declared that when defendant Marcelino Florete, Sr. became owner of this Maranon fishpond, he
was able to work on this canal where he dug the canal deeper up to Florete's land. He testified that during high tide the water in
the canal was only about 1/2 meter deep and there was no water during low tide and so Florets made the canal deeper.

Regacho also testified that there are two canals within the school premises, one going towards the land of Florete and the
other to the land of Mirasol. These two canals met at the place where Florete closed the canal. The canal going towards
Florete's land and that to Mirasol's land serve to empty rainwater to the Iloilo River. He further confirmed that the school
fishpond has no other source of salt water except from the canal that connect to the main canal that starts from the Iloilo River.

For his part, defendant Antonio Sison, 54, testified that he was born in Barangay Navais and has been its barangay captain
since 1954 continuously up to the present. He first noticed the existence of the canal in 1933 when he reached the age of
reason at the age of 8 years, said canal being about 300 meters long from the Iloilo River going towards the premises of the
barrio school and to the land now known as Lot 2344 owned by Marcelino Florete. He also used to take a bath in this canal
when still a small boy.
Defendant Sison further declared that the brothers Pedro and Buenaventura Maranon were then the owners of the fishpond
along which the canal runs starting from the Iloilo River towards the school premises when the Maranons sold the land to
Florete sometime in 1959. Florete was not the one who constructed the canal but only made the same deeper.

This construction of Florete took place in 1961 when Sison was also the barangay captain. He recalled Francisco Regacho
was one of those who worked in making the canal deeper at the instance of Florete and that no employee from the City
Engineer's Office inspected the canal during its repair undertaken by Florete and where Alfredo Emboltorio, as the one who
managed the work in the canal.

Defendant Sison went to see Pedro Maranon, who was once a co-owner of the land where the main canal passes, to request
him to testify but the latter begged off by reason of his health and old age and, instead, executed an affidavit dated May 14,
1979 (Exh. "8") certifying to the effect that "since before the war until we sold the said land to Marcelino Florete, there exists a
canal from the Iloilo River cutting our property down towards the lot where the school is located and thru a canal that traverses
the school premises. (par. 4. Exh. "8")

It is thus clear from the testimonies of defendants' witnesses that the main canal starting from the Iloilo River and the canal
traversing the premises of the L. Borres Elem. School going toward lot 2344 existed long before defendant Florete, Sr.
acquired ownership of the land of the Maranons and that, if at all, Florete merely caused to be made deeper that portion
traversing the school premises.

No less than the defendants' evidence itself proved the existence of the main canal. Thus, in his letter dated June 26,1961
embodied in Resolution No. 715 dated June 27,1961 of the Municipal Board of the City of Iloilo (Exh. "B") defendant Florete Sr.
asked that he be allowed to build a canal within the premises of the barrio school up to his Lot 2344. It is not, therefore, a
permit to build a canal from the Iloilo River for otherwise, Florete would have so stated in his said letter to the Board. This is so
because there already existed a main canal from the Iloilo River. The canal traversing the school premises was likewise then
already existing but not so deep that Florete wanted it constructed to be permanent. And in making this canal deeper, he
started not from the Iloilo River but from his fishpond adjoining the school premises towards his lot 2344, Florete testified thus:

Q. (Court) - From what point did you start?

A From our fishpond traversing the Borres Elementary and then going to our lot. (TSN, July 5, 1979, page 22).

Defendants presented in evidence a blueprint copy of the Cadastral Map. B. L. No. 3 (Exh. "F") to show that no natural
waterway or creek existed in the pre that connected the Iloilo River to the fishpond premises. But this piece of evidence was
rendered without any probative value when plaintiffs also presented Teodoro Simpas, Chief of the Surveys Division of the
Bureau of Lands, Region IV, who testified that creeks and esteros are delienated in the cadastral map only if they are five (5)
or more meters wide and, even less than five (5) meters wide, if there is continuous flow of water is to be determined by the
surveyor who made the survey.

Here, it has been duly established that the canal in question starting from the Iloilo River is only about 3 meters wide for the
first 100 meters long and then measures about 2 meters wide until it reaches Lot 2344 with a length of about 200 meters. And
it has been shown that salt water coming from the Iloilo River flows in the canal during high tide where the water in the main
canal reaches about one-half meter and about two (2) feet in the canal that traverses the school premises. In ordinary days, no
water flows in the canal that cuts a the school premises . This explains why the canal in question was not indicated in the
cadastral map during the 1913 survey. The canal is less than 5 meters wide and did not have a continuous flow of water
except during high tide and during rainy season where it serves as drainage and empties flood waters into the Iloilo River.

Defendants' closure of the dike's entrance connecting the main canal with the canal running thru the school premises,
therefore, caused the flooding of the premises of the L. Borres Elementary School and its vicinity. This is so because during
rainy season, said canal also serves as outlet of rain or flood waters that empties to the Iloilo River. Witnesses Ignacio
Gencianeo, Francisco Regacho, Severo Maranon and Barangay Captain Antonio Sison were unanimous in declaring so.

In his attempt to show that the closing of the dike entrance of the canal did not cause the flooding of the school premises and
its vicinity, plaintiffs' witnesses Modesto Emboltorio, declared that flood in the school fishpond immediately disappears
because water recedes to the Borres property. But it has been shown that the adjacent Borres property is higher in elevation
compared to the school premises such that water in the school premises cannot flow towards that area. And because water
has no other way out except thru the canal, the school premises and its vicinity get flooded once it rains and flood waters
remain stagnant for days as shown by the photographs exhibits "3" and "3-A" taken on August 24,1978 and Exhibits "10" and
"10-A" taken on August 15, 1979. The said photographs Exhibits "l 0" and "10-A" belied Emboltorio's testimony that there were
no flood waters in that area when he testified in Court in the morning of August 14, 1979.
That the premises of the school and its vicinity were flooded when it rained during the rainy season of 1978 immediately afte r
the closing of the dike entrance of the canal is further shown by the report (Exh. "4") dated September 3, 1978 submitted by
Carlos G. Brasileno, Asst. Complaint & Acting Officer, Barangay City secretariat and the 6th Indorsement (Exh. "'I") dated
November 7,1978 of 2nd Asst. City Fiscal Serafin L. Abogado. These two officials were with the government teams that
conducted ocular inspection of the place upon complaint of the residents therein and they actually saw for themselves the
flooded situation of the place caused by plaintiffs' closure of the dike entrance of subject canal.

To be sure, the defendants acted in their official capacities in dealing with the problem related to the canals in question. It has
been sufficiently established that the school fishpond gets its supply of salt water directly from the Iloilo River passing thru the
canal that traverses the school premises. Likewise, the residents of the place produce salt thru the use of plastic sheets using
salt water drawn from the canal. Salt water in this canal is fresh and clean as the tide changes from the Iloilo River unlike in the
fishpond nearby which is stagnant and polluted and not suitable for salt- making.

The closure of the dike entrance of the canal deprived the school fishpond as well as the residents of the place of salt-water
and placed the premises of the school and the surrounding vicinity in danger of being flooded when it rains so that the school
officials, the defendants Ester Javellana, as district supervisor, Cesar Cruzada as head teacher and Rolando Demafiles as
practical arts teacher and the barangay captain, Antonio Sison only did what were incumbent upon them to do as such school
and barangay officials when they complained to higher authorities about the plaintiffs' closure of the canal in question.

Indeed, there is no showing that the defendants school officials were motivated by their own personal interests when they
complained against plaintiffs' action vis-a-vis the canal. Their effort were all directed towards the benefit of the school as well
as for the school children who, in one way or another, had been adversely affected by the closure of the canal. These officials
did not act privately for themselves but for public good and public interest. They expected no personal benefit in return.

The same is true with the defendant barangay captain Antonio Sison who merely complied with his duty extending assistance
to the residents of bringing their complaint to the authorities concerned. It was his duty to attend to the needs and problems of
his barangay and its residents. The closure of the canal did not only deprive the residents of salt water for salt- making but also
posed danger to them as in fact, during the ensuing rainy days in August of 1978, the place was flooded thus endangering the
health and safety of the residents therein.

Then, too, defendant Col. Jose Hernani only did his duty as head of the Office of Civil Defense in attending to the complaint of
the residents of the place. His office has jurisdiction over cases of calamity, flood and the like such that it was but proper, nay
obligatory, on his part to act on their complaint against the closure of the canal that caused flood in Barangay Navais

The fact is that plaintiffs are without any justifiable reason to close the canal. Defendants advanced that the district supervisor,
defendant Ester Javellana, wrote Marcelino Florete Sr. a letter allegedly denying his use of the canal that traverses the school
premises reason for which he closed the dike entrance and built an underground canal on the other side of his property going
to his Lot 2344. But defendant Javellana explained that there was no such denial. What she meant when she wrote the letter to
Marcelino Florete, Sr. was that plaintiffs could not lay pipes underneath the canal. Defendant Ester Javellana testified thus:

Q Could you inform the Hon. Court Mrs. Javellana what impelled you to write Mr. Florete this letter?

A My head teacher informed that they were going to lay or buy a 10 inch pipe in the canal which crosses the school that canal
to my office one morning Feb. 22. Industrial Arts Teacher Mr. Rolando Demafiles and the Head Teacher, Mr. Cesar Cruzada.
They were excited. There was already a 10 inch rubber tube running from Iloilo River crossing to the school to the bed of Mr.
Florete. That they intend to bury and so I accompanied them to L. Borres Elementary School and saw for myself that there
really was a 10 inch or 8 inch rubber pipe running across the school and was about to be buried.

Q Why? Can you explain what would be the disadvantage if Mr. Florete bury those pipes on the canal that traverses the
school?

A The school maybe deprived of the water for their fishpond, that is one and the second, drainage canal which drains the
school in case of flood will not be working anymore.

Q Now, in your letter, you mentioned here and I read quote: Please sit down with us with Mr. Borres because this lot of the
school still belongs to Mr. Borres and the Division Office denies your right of way, my question is what do you mean when you
say that the Division Office denied your right of way?
A I meant they cannot bury a pipe depriving the school of the water because the land does not belong to us yet. In other words,
the land does not belong to L. Borres Elementary School although it is supposed to be donated by L. Borres

Q But when you wrote this letter Mrs. Witness, did you really stop or prohibit Mr. Florete from continuing the use of the canal?

A No sir. (TSN, Oct. 17, 1979, pp. 5-6)

Mrs. Javellana sent that letter-invitation when she came to know that water pipes were about to be laid underground by
plaintiffs in lieu of the open canal. Plaintiff Florete Sr., however, did not come to the conference nor sent any word or
representative. Nor did he attend to all other subsequent invitations related to the canal although he knew said invitations or
conference conducted by the government offices concerned.

As heretofore stated, the main canal had long been in existence even before plaintiff Marcelino Florete Sr. acquired ownership
of the fishpond of the Maranons thru which the same passes. This canal served as passage of salt water from Iloilo River to the
school fishpond and at the same time, as outlet and drainage canal or channel of rainwater from the school premises and
adjacent lands that empties to the Iloilo River. An easement or servitude of water-right of way had thus been constituted on the
property of the plaintiffs as the servient estate in favor of the L. Borres Elementary School land and the nearby lands as the
dominant estates.

Even on the assumption that it was plaintiff Florete Sr. who constructed the subject canal in 1961, an easement or servitude of
water-right-of-way had nonetheless been constituted on subject property because since then the same had been in continuous
use for no less than fifteen (15) years by the school fishpond as well as by the adjacent lands. A positive easement (Art 616,
New Civil Code) had thereby been created and plaintiffs have no right to terminate it unilaterally without violating Art. 629 of
the New Civil Code which provides:

Art. 629: The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude.

Nevertheless, if by reason of the place originally assigned or of the manner established for the use of the easement, the same
should become very inconvenient to the owner of the servient estate, or should prevent him from making any important works,
repairs or improvements thereon, it may be charged at his expense, provided he offers another place or manner equally
convenient and in such a way that no injury is caused thereby to the owner of the dominant estate or to those who may have a
right to the use of the easement.

Plaintiffs, however, did not recognize, much less, follow the above-quoted law on easement. They closed the entrance of the
canal and demolished portions of the main dike thus impairing the use of the servitude by the dominant estate. And by so
doing, plaintiffs violated not only the law on easement but also Presidential Degree No. 296 which enjoins any person, natural
or juridical, to demolish structures or improvements which tend to obstruct the flow of water through rivers, creeks, esteros and
drainage channels. For this canal did not serve merely to supply salt water to the school fishpond but also serves as drainage
charged or channel of rainwater from adjacent lands to the Iloilo River.

Before the canal was closed, the residents had not experienced any flood in the area or in the school premises. It was only
after the canal was closed by plaintiffs on July 25, 1978, that the residents began to experience flood in the school premises
particularly in the month of August every year thereafter when rainy season comes. Rainwater from adjoining areas
accumulate at the school premises without any chance of going out. Flood waters remain stagnant for days and became filthy
and veritable breeding place of mosquitoes.

Plaintiffs claimed that they closed the canal because the residents of the place threw waste matter and garbage into the canal
and so the waters therein were dirtied and rendered totally unsanitary for human use, particularly for salt-making. But this claim
was belied by defendants' showing that what motivated plaintiffs to close the canal was the fact that the residents engaged in
salt-making using plastic bags and thus, somehow, competed with plaintiffs in the production of salt in the area. At any rate,
regardless of what motivated plaintiffs into closing the canal, the fact is that plaintiffs act ran roughshod over the aforequoted
provisions of law on easement and transgressed Presidential Decree No. 296.

On the issue of damages, therefore, the court is of the view and so holds that plaintiffs are liable to the defendants for moral
damages, attorney's fees and costs of litigation. It is bad enough that plaintiffs, after closing the canal and thus depriving the
school fishpond and residents of the place salt water from the Iloilo River and impeding the flow of rain and flood waters from
the school premises and adjacent lands to said river during rainy season, unjustifiably refused and failed to heed defendants'
plea for them to reopen said canal. Worse, plaintiffs instituted the present action against the defendants and dragged the latter
into a court suit that occasioned upon them worries, serious anxiety, fright and mental anguish. No doubt, the defendants were
vexed to the utmost to find themselves faced with a court suit when what they did was only to do what was incumbent upon
them to do as public officials committed to serve public interest and welfare. What is more, they were forced to secure the
service of a private counsel as they were sued also in their private capacities.

It is quite evident that plaintiffs filed the present action in bad faith to preempt whatever appropriate legal action the authorities
could take under the circumstances aware, as they were, that no less than the offices of the City Fiscal of Iloilo and the City
Barangay Secretariat, after conducting ocular inspection of the place together with other government functionaries tasked with
promoting the health, safety and welfare of the people in the area, recommended immediate appropriate action aimed at
reopening the canal.

The damages that could be adjudged in this case are, however, limited only to the herein defendants. It may be that the school
fishpond was damaged and the school PTA suffered actual damages in the form of lost income therefrom. And so with the
school children and residents of the place reason for which defendants pray that they should be compensated. But they are not
parties to this case hence, damages could not be awarded to them. (pp. 37-46, Rollo)

After a careful reading of the aforementioned findings of the trial court, there is no question that the two subject canals had
been in existence long before plaintiff Florete bought his land from the Maranons. Respondent appellate court cannot now
disown it after quoting with approval in the body of its decision the findings of the trial court. This brings Us to the determination
of the other issue namely: which of the two (2) estates is the dominant or servient estate, an issue which hinges upon the
conclusion reached by the trial court that the canals were in existence long before Florete Sr. had acquired that property from
the Maranons. It has been established that the main canal which is traversing the property of Florete served as the passage of
salt water from the Iloilo River to the school fishpond and at the same time, as an outlet and drainage canal or channel of
rainwater from the school premises and adjacent lands that empty into the Iloilo River. Even assuming that it was plaintiff
Florete Sr. who constructed the subject canal in 1961, an easement of water-right of way had already been constituted on the
property of the plaintiffs as the servient estate in favor of the L. Borres Elementary School premises and the nearby lands as
the dominant estates. Private respondents thus violated Art. 629 of the Civil Code when they closed the entrance of the canal
and demolished portions of the main dike thus impairing the use of the servitude by the dominant estates. The findings of the
trial court are amply supported by a careful and exhaustive consideration of all available documentary and oral evidence
including ocular inspections as it was in the best position to do so. Its legal conclusions are likewise unassailable. In view of the
well-settled rule that this Court is not a trier of facts, We find no plausible reason not to sustain the trial court in its findings of
fact and the legal conclusions drawn from these findings.

WHEREFORE, premises considered, the assailed decision of the respondent appellate court is hereby REVERSED and SET
ASIDE, and the judgment of the Regional Trial Court in Civil Case No. 12791 is hereby REINSTATED.

SO ORDERED.

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.

Footnotes

1ART. 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 without adequate outlet to a public highway, is entitled to demand a right of way
through the neighboring estates, after the payment of the proper indemnity."

TOMAS ENCARNACION, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and THE INTESTATE ESTATE OF THE LATE EUSEBIO DE SAGUN and THE
HEIRS OF THE LATE ANICETA MAGSINO VIUDA DE SAGUN,* respondents.

Esteban M. Mendoza for petitioner.

Oscar Gozos for private respondents.
FERNAN, C.J.:

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

The facts are undisputed.

Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta Magsino Viuda de Sagun are the owners of
two adjacent estates situated in Buco, Talisay, Batangas. ** Petitioner owns the dominant estate which has an area of 2,590
square meters and bounded on the North by Eusebio de Sagun and Mamerto Magsino, on the south by Taal Lake, on the East
by Felino Matienzo and on the West by Pedro Matienzo. Private respondents co-own the 405-square-meter servient estate
which is bounded on the North by the National Highway (Laurel-Talisay Highway), on the South by Tomas Encarnacion, on the
East by Mamerto Magsino and on the West by Felipe de Sagun. In other words, the servient estate stands between the
dominant estate and the national road.

Prior to 1960, when the servient estate was not yet enclosed with a concrete fence, persons going to the national highway just
crossed the servient estate at no particular point. However, in 1960 when private respondents constructed a fence around the
servient estate, a roadpath measuring 25 meters long and about a meter wide was constituted to provide access to the
highway. One-half meter width of the path was taken from the servient estate and the other one-half meter portion was taken
from another lot owned by Mamerto Magsino. No compensation was asked and non was given for the portions constituting the
pathway.1

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

Petitioner's plant nursery business through sheer hard work flourished and with that, it became more and more difficult for
petitioner to haul the plants and garden soil to and from the nursery and the highway with the use of pushcarts. In January,
1984, petitioner was able to buy an owner-type jeep which he could use for transporting his plants. However, that jeep could
not pass through the roadpath and so he approached the servient estate owners (Aniceta Vda. de Sagun and Elena Romero
Vda. de Sagun) and requested that they sell to him one and one-half (1 1/2) meters of their property to be added to the existing
pathway so as to allow passage for his jeepney. To his utter consternation, his request was turned down by the two widows
and further attempts at negotiation proved futile.

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

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

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

The reasons given for his claim that the one-meter passageway through defendants' land be widened to two and one-half
meters to allow the passage of his jeep, destroying in the process one of the concrete fences and decreasing defendants'
already small parcel to only about 332.5 square meters, just because it is nearer to the highway by 25 meters compared to the
second access of 80 meters or a difference of only 65 meters and that passage through defendants' land is more convenient
for his (plaintiffs) business and family use are not among the conditions specified by Article 649 of the Civil Code to entitle the
plaintiff to a right of way for the passage of his jeep through defendant's land. 3

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

In sustaining the trial court, the Court of Appeals opined that the necessity interposed by petitioner was not compelling enough
to justify interference with the property rights of private respondents. The Appellate Court took into consideration the presence
of a dried river bed only eighty (80) meters away from the dominant estate and conjectured that petitioner might have actually
driven his jeep through the river bed in order to get to the highway, and that the only reason why he wanted a wider easement
through the De Sagun's estate was that it was more convenient for his business and family needs.

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

While there is a dried river bed less than 100 meters from the dominant tenement, that access is grossly
inadequate.1wphi1 Generally, the right of way may be demanded: (1) when there is absolutely no access to a public highway,
and (2) when, even if there is one, it is difficult or dangerous to use or is grossly insufficient. In the present case, the river bed
route is traversed by a semi-concrete bridge and there is no ingress nor egress from the highway. For the jeep to reach the
level of the highway, it must literally jump four (4) to five (5) meters up. Moreover, during the rainy season, the river bed is
impassable due to the floods. Thus, it can only be used at certain times of the year. With the inherent disadvantages of the
river bed which make passage difficult, if not impossible, it is if there were no outlet at all.

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

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

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

Article 651 of the Civil Code provides that "(t)he width of the easement of right of way shall be that which is sufficient for the
needs of the dominant estate, and may accordingly be changed from time to time." This is taken to mean that under the law, it
is the needs of the dominant property which ultimately determine the width of the passage. And these needs may vary from
time to time. When petitioner started out as a plant nursery operator, he and his family could easily make do with a few
pushcarts to tow the plants to the national highway. But the business grew and with it the need for the use of modern means of
conveyance or transport. Manual hauling of plants and garden soil and use of pushcarts have become extremely cumbersome
and physically taxing. To force petitioner to leave his jeepney in the highway, exposed to the elements and to the risk of theft
simply because it could not pass through the improvised pathway, is sheer pigheadedness on the part of the servient estate
and can only be counter-productive for all the people concerned. Petitioner should not be denied a passageway wide enough
to accomodate his jeepney since that is a reasonable and necessary aspect of the plant nursery business.

We are well aware that an additional one and one-half (1 1/2) meters in the width of the pathway will reduce the servient estate
to only about 342.5 square meters. But petitioner has expressed willingness to exchange an equivalent portion of his land to
compensate private respondents for their loss. Perhaps, it would be well for respondents to take the offer of petitioner
seriously.5 But unless and until that option is considered, the law decrees that petitioner must indemnify the owners of the
servient estate including Mamerto Magsino from whose adjoining lot 1/2 meter was taken to constitute the original path several
years ago. Since the easement to be established in favor of petitioner is of a continuous and permanent nature, the indemnity
shall consist of the value of the land occupied and the amount of the damage caused to the servient estate pursuant to Article
649 of the Civil Code which states in part:

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

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

xxx xxx xxx

WHEREFORE, in conformity with the foregoing discussion, the appealed decision of the Court of Appeals dated January 28,
1987 is REVERSED and SET ASIDE. Petitioner Tomas Encarnacion is hereby declared entitled to an additional easement of
right of way of twenty-five (25) meters long by one and one-half (1 1/2) meters wide over the servient estate or a total area of
62.5 square meters after payment of the proper indemnity.
SO ORDERED.

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.

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 camarin thereon
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 the camarin 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 the constitution 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.

NATIONAL POWER CORPORATION, petitioner,

vs.
SPS. JOSE C. CAMPOS, JR. and MA. CLARA LOPEZ-CAMPOS, respondents.

CALLEJO, SR., J.:

This is a petition for review of the Decision 1 dated June 16, 2000 of the Court of Appeals in CA-G.R. CV No. 54265. The
assailed decision affirmed in toto the Decision2 of the Regional Trial Court (RTC) of Quezon City, Branch 98, which ordered
petitioner National Power Corporation to pay, among others, actual, moral and nominal damages in the total amount
of P1,980,000 to respondents Spouses Jose C. Campos, Jr. and Ma. Clara A. Lopez-Campos.

The petition at bar stemmed from the following antecedents:

On February 2, 1996, the respondents filed with the court a quo an action for sum of money and damages against the
petitioner. In their complaint, the respondents alleged that they are the owners of a parcel of land situated in Bo. San Agustin,
Dasmarias, Cavite, consisting of 66,819 square meters ("subject property") covered by Transfer Certificate of Title (TCT) No.
T-957323. Sometime in the middle of 1970, Dr. Paulo C. Campos, who was then the President of the Cavite Electric
Cooperative and brother of respondent Jose C. Campos, Jr., verbally requested the respondents to grant the petitioner a
right-of-way over a portion of the subject property. Wooden electrical posts and transmission lines were to be installed for the
electrification of Puerto Azul. The respondents acceded to this request upon the condition that the said installation would only
be temporary in nature. The petitioner assured the respondents that the arrangement would be temporary and that the wooden
electric posts would be relocated as soon as permanent posts and transmission lines shall have been installed. Contrary to the
verbal agreement of the parties, however, the petitioner continued to use the subject property for its wooden electrical posts
and transmission lines without compensating the respondents therefor. 3

The complaint likewise alleged that some time in 1994, the petitioners agents trespassed on the subject property and
conducted engineering surveys thereon. The respondents caretaker asked these agents to leave the property. Thereafter, in
1995, a certain "Mr. Raz," who claimed to be the petitioners agent, went to the office of respondent Jose C. Campos, Jr., then
Associate Justice of the Supreme Court, and requested permission from the latter to enter the subject property and conduct a
survey in connection with the petitioners plan to erect an all-steel transmission line tower on a 24-square meter area inside the
subject property. Respondent Jose Campos, Jr., refused to grant the permission and expressed his preference to talk to the
Chief of the Calaca Sub-station or the head of the petitioners Quezon City office. The respondents did not hear from "Mr. Raz"
or any one from the petitioners office since then. Sometime in July or August of 1995, the petitioners agents again trespassed
on the subject property, presenting to the respondents caretaker a letter of authority purportedly written by respondent Jose C.
Campos, Jr. When the caretaker demanded that the letter be given to him for verification with respondent Jose C. Campos, Jr.
himself, the petitioners agents refused to do so. Consequently, the caretaker ordered the agents to leave the subject
property.4

The complaint further alleged that on December 12, 1995, the petitioner instituted an expropriation case involving the subject
property before the RTC of Imus, Cavite, Branch 22. The case was docketed as Civil Case No. 1174-95. The petitioner alleged
in its complaint therein that the subject property was selected "in a manner compatible with the greatest public good and the
least private injury" and that it (petitioner) had tried to negotiate with the respondents for the acquisition of the right-of-way
easement on the subject property but that the parties failed to reach an amicable settlement. 5

The respondents maintained that, contrary to the petitioners allegations, there were other more suitable or appropriate sites
for the petitioners all-steel transmission lines and that the petitioner chose the subject property in a whimsical and capricious
manner. The respondents averred that the proposed right-of-way was not the least injurious to them as the system design
prepared by the petitioner could be further revised to avoid having to traverse the subject property. The respondents vigorously
denied negotiating with the petitioner in connection with the latters acquisition of a right-of-way on the subject property.6

Finally, the complaint alleged that unaware of the petitioners intention to expropriate a portion of the subject property, the
respondents sold the same to Solar Resources, Inc. As a consequence, the respondents stand to lose a substantial amount of
money derived from the proceeds of the sale of the subject property should the buyer (Solar Resources, Inc.) decide to annul
the sale because of the contemplated expropriation of the subject property. 7

The complaint a quo thus prayed that the petitioner be adjudged liable to pay the respondents, among others, actual, nominal
and moral damages:

WHEREFORE, premises considered, it is respectfully prayed that the Honorable Court award the plaintiffs:

a. Actual damages for the use of defendants property since middle 1970s, including legal interest thereon, as may be
established during the trial;

b. P1,000,000.00 as nominal damages;

c. P1,000,000.00 as moral damages;

d. Lost business opportunity as may be established during the trial;

e. P250,000.00 as attorneys fees;

f. Costs of suit.

Plaintiffs pray for other, further and different reliefs as may be just and equitable under the premises. 8

Upon receipt of the summons and complaint, the petitioner moved for additional time to file its responsive pleading. However,
instead of filing an answer to the complaint, the petitioner filed a motion to dismiss on the ground that the action had prescribed
and that there was another action pending between the same parties for the same cause (litis pendencia). The respondents
opposed said motion. On May 2, 1996, the RTC issued an order denying the petitioners motion to dismiss.

The petitioner then moved for reconsideration of the aforesaid order. The respondents opposed the same and moved to
declare the petitioner in default on the ground that its motion for reconsideration did not have the required notice of hearing;
hence, it did not toll the running of the reglementary period to file an answer.

On July 15, 1996, the RTC issued an order denying the petitioners motion for reconsideration. Subsequently, on July 24, 1996,
it issued another order granting the respondents motion and declared the petitioner in default for its failure to file an answer.
The petitioner filed a motion to set aside the order of default but the same was denied by the RTC.

The petitioner filed a petition for certiorari, prohibition and preliminary injunction with the Court of Appeals, docketed as
CA-G.R. SP No. 41782, assailing the May 2, 1996, July 15, 1996 and July 24, 1996 Orders issued by the RTC as having been
issued with grave abuse of discretion and to enjoin it from proceeding with the case. On February 13, 1996, the CA dismissed
the petition for certiorari, prohibition and preliminary injunction filed by the petitioner in CA-G.R. SP No. 41782.

In the meantime, the respondents adduced their evidence ex parte in the RTC. As synthesized by the trial court, the
respondents adduced evidence, thus:

From the evidence thus far submitted, it appears that the plaintiffs spouses, both of whom professional of high standing in
society, are the absolute owners of a certain parcel of land situated in Bo. San Agustin, Dasmarias, Cavite, consisting of
66,819 square meters, more or less, covered and embraced in TCT No. T-95732. Sometime in the mid-1970, Dr. Paulo C.
Campos, brother of Justice Jose Campos, Jr., then President of the Cavite Electric Cooperative, approached the latter and
confided to him the desire of the National Power Corporation to be allowed to install temporary wooden electric posts on the
portion of his wifes property in order that the high-tension transmission line coming from Kaliraya passing thru that part of
Cavite can be continued to the direction of Puerto Azul.
Having heard the plea of his brother and the fact that National Power Corporation was under pressure because at the time that
Puerto Azul was being developed there was no electricity nor was there electrical lines towards that place and acting on the
belief that the installation of wooden electric posts would be temporary in nature, plaintiffs gave oral permission for the NPC
personnel to enter the said parcel of land. Dr. Paulo C. Campos, assured him that it was just a temporary measure to meet the
emergency need of the Puerto Azul and that the wooden electric posts will be relocated when a permanent posts and
transmission lines shall have been installed. Pursuant to their understanding, the National Power Corporation installed wooden
posts across a portion of plaintiffs property occupying a total area of about 2,000 square meters more or less. To date,
defendant NPC has been using the plaintiffs property for its wooden electrical posts and transmission lines; that the latter has
estimated that the aggregate rental (which they peg at the conservative rate of P1.00 per square meter) of the 2,000 square
meters for twenty-four (24) years period, would amount to the aggregate sum of P480,000.00.

From the time National Power Corporation installed those temporary wooden posts, no notice was ever served upon the
plaintiffs of their intention to relocate the same or to install permanent transmission line on the property. Also, there was no
personal contact between them. However, in late 1994, plaintiffs overseer found a group of persons of the defendant NPC
conducting survey inside the said property, and were asked to leave the premises upon being discovered that they have no
authority to do so from the owners thereof. Subsequently thereafter, or sometime in 1995, a person by the name of Mr. Paz,
bearing a letter from Calaca Regional Office, went to see Justice Jose C. Campos, Jr. in his office, informing the latter that he
was authorized by the National Power Corporation to acquire private lands. In the same breath, Mr. Paz requested his
permission to let NPC men enter the subject property and to conduct a survey in connection with its plan to erect an all steel
transmission line tower on a 24 square meter area inside plaintiffs property, but same was denied. Justice Campos, however,
expressed his preference to talk instead to the Chief of the Calaca Sub-station or the Head of the NPC, Quezon City office.
Since then, nothing however transpired.

Sometime in July or August 1995, plaintiffs learned that defendants agents again entered the subject property. This time, they
have presented to the caretaker a letter of authority supposedly from Justice Jose C. Campos, Jr. And, when prodded to see
the letter for verification, defendants agents refused to do so. So, they were ordered out of the vicinity. Plaintiffs stressed that
defendants repeated intrusions into their property without their expressed knowledge and consent had impugned on their
constitutional right to protection over their property.

Later, on December 12, 1995, plaintiffs received copy of summons and complaint in Civil Case No. 1174-95 filed by the
defendant before the Regional Trial Court, Fourth Judicial Region, Branch 22, Imus, Cavite for the expropriation of 5,320
square meters of plaintiffs above-described property to be used as right-of-way for the all-steel transmission line tower of the
Calaca-Dasmarias 230 KV T/L Project. But what had caused plaintiffs discomfiture is the allegation in said complaint stating
that the "parcel of land sought to be expropriated has not been applied to nor expropriated for any public use and is selected
by plaintiff in a manner compatible with the greatest good and the least private injury" and that defendant "had negotiated with
(plaintiffs) for the acquisition of the right-of-way easement over the portion of the same for the public purpose as above-stated
at a price prescribed by law, but failed to reach an agreement with them notwithstanding the repeated negotiations between
the parties".

Plaintiffs assert that at no instance was there a negotiation between them and the NPC or its representative. The alleged "talk"
initiated by Mr. Paz with Justice Campos, Jr. just ended in the latters remonstrance and in prevailing upon the former of his
preference to discuss the matter with a more responsible officer of the National Power Corporation, such as the Chief of the
Calaca Sub-Station or the Head of NPCs Office in Quezon City. But plaintiffs plea just fell on the deaf ear. The next thing they
know was Civil Case No. Q-1174-95 already filed in court. A party to a case shall not do falsehood nor shall mislead or
misrepresent the contents of its pleading. That gross misrepresentation had been made by the National Power Corporation in
their said pleading is irrefutable.

Plaintiffs-spouses Campos declared that there are other areas more suitable or appropriate that can be utilized as alternative
sites for the all-steel transmission line tower. Just a few meters from the planned right-of-way is an abandoned road occupied
by squatters; it is a government property and the possession of which the NPC need not compensate. The latter had not
exercised judiciously in the proper selection of the property to be appropriated. Evidently, NPCs choice was whimsical and
capricious. Such arbitrary selection of plaintiffs property despite the availability of another property in a manner compatible
with the greatest public good and the least private injury, constitutes an impermissible encroachment of plaintiffs proprietary
rights and their right to due process and equal protection.

Concededly, NPCs intention is to expropriate a portion of plaintiffs property. This limitation on the right of ownership is the
paramount right of the National Power Corporation granted by law. But before a person can be deprived of his property
through the exercise of the power of eminent domain, the requisites of law must strictly be complied with. (Endencia vs.
Lualhati, 9 Phil. 177) No person shall be deprived of his property except by competent authority and for public use and always
upon payment of just compensation. Should this requirement be not first complied with, the courts shall protect and, in a proper
case, restore the owner in his possession. (Art. 433 Civil Code of the Philippines)
Records disclose that in breach of such verbal promise, defendant NPC had not withdrawn the wooden electrical posts and
transmission lines; said wooden electrical posts and transmission lines still occupy a portion of plaintiffs property; that the NPC
had benefited from them for a long period of time already, sans compensation to the owners thereof.

Without first complying with the primordial requisites appurtenant to the exercise of the power of eminent domain, defendant
NPC again boldly intruded into plaintiffs property by conducting engineering surveys with the end in view of expropriating
5,320 square meters thereof to be used as right-of-way for the all-steel transmission line tower of the Calaca-Dasmarias 230
KV T/L Project. Such acts constitute a deprivation of ones property for public use without due compensation. It would
therefore seem that the expropriation had indeed departed from its own purpose and turns out to be an instrument to repudiate
compliance with obligation legally and validly contracted. 9

On September 26, 1996, the RTC rendered a decision finding the petitioner liable for damages to the respondents. The
dispositive portion of the RTC decision reads:

WHEREFORE, in view of the foregoing consideration, justment [sic] is hereby rendered in favor of the plaintiffs, condemning
the defendant to pay

(a) Actual damages of P480,000.00 for the use of plaintiffs property;

(b) One Million Pesos (P1,000,000.00) as moral damages;

(c ) Five Hundred Thousand Pesos (P500,000.00) as nominal damages;

(d) One Hundred Fifty Thousand Pesos (P150,000.00) as attorneys fees; and

(e) Costs of suit in the amount of P11,239.00.

SO ORDERED.10

The petitioner appealed the decision to the Court of Appeals which on June 16, 1990 rendered a decision affirming the ruling
of the RTC.

Essentially, the CA held that the respondents claim for compensation and damages had not prescribed because Section 3(i)
of the petitioners Charter, Republic Act No. 6395, as amended, is not applicable to the case. The CA likewise gave scant
consideration to the petitioners claim that the respondents complaint should be dismissed on the ground of litis pendencia.
According to the CA, the complaint a quo was the more appropriate action considering that the venue for the expropriation
case (Civil Case No. 1174-95) was initially improperly laid. The petitioner filed the expropriation proceedings with the RTC in
Imus, Cavite, when the subject property is located in Dasmarias, Cavite. Moreover, the parties in the two actions are not the
same since the respondents were no longer included as defendants in the petitioners amended complaint in the expropriation
case (Civil Case No. 1174-95) but were already replaced by Solar Resources, Inc., the buyer of the subject property, as
defendant therein.

The CA likewise found the damages awarded by the RTC in favor of the respondents just and reasonable under the
circumstances obtaining in the case.

The petitioner now comes to this Court seeking to reverse and set aside the assailed decision. The petitioner alleges as
follows:

The Court of Appeals grievously erred and labored under a gross misapprehension of fact in finding that the Complaint below
should not be dismissed on the ground of prescription.

II

The Court of Appeals erred in affirming the award of nominal and moral damages, attorneys fees and costs of litigation. 11
Citing Article 620 of the Civil Code, the petitioner contends that it had already acquired the easement of right-of-way over the
portion of the subject property by prescription, the said easement having been allegedly continuous and apparent for a period
of about twenty-three (23) years, i.e., from about the middle of 1970 to the early part of 1994. The petitioner further invokes
Section 3(i) of its Charter in asserting that the respondents already waived their right to institute any action for compensation
and/or damages concerning the acquisition of the easement of right-of-way in the subject property. Accordingly, the petitioner
concludes that the award of damages in favor of the respondents is not warranted.

The petition is bereft of merit.

The petitioners claim that, under Article 620 of the Civil Code, it had already acquired by prescription the easement of
right-of-way over that portion of the subject property where its wooden electric posts and transmission lines were erected is
untenable. Article 620 of the Civil Code provides that:

Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years.

Prescription as a mode of acquisition requires the existence of the following: (1) capacity to acquire by prescription; (2) a thing
capable of acquisition by prescription; (3) possession of the thing under certain conditions; and (4) lapse of time provided by
law.12 Acquisitive prescription may either be ordinary, in which case the possession must be in good faith and with just
title,13 or extraordinary, in which case there is neither good faith nor just title. In either case, there has to be possession which
must be in the concept of an owner, public, peaceful and uninterrupted. 14 As a corollary, Article 1119 of the Civil Code provides
that:

Art. 1119. Acts of possessory character executed in virtue of license or by mere tolerance of the owner shall not be available
for the purposes of possession.

In this case, the records clearly reveal that the petitioners possession of that portion of the subject property where it erected
the wooden posts and transmission lines was merely upon the tolerance of the respondents. Accordingly, this permissive use
by the petitioner of that portion of the subject property, no matter how long continued, will not create an easement of
right-of-way by prescription. The case of Cuaycong vs. Benedicto15 is particularly instructive. In that case, the plaintiffs for
more than twenty years made use of the road that passed through the hacienda owned by the defendants, being the only road
that connected the plaintiffs hacienda to the public road. The defendants closed the road in question and refused the use of
the same unless a toll was paid. The plaintiffs therein brought an action to enjoin the defendants from interfering with the use of
the road. In support of their action, the plaintiffs presented evidence tending to show that they have acquired the right-of-way
through the road by prescription. This Court rejected the contention, holding as follows:

Had it been shown that the road had been maintained at the public expense, with the acquiescence of the owners of the
estates crossed by it, this would indicate such adverse possession by the government as in course of time would ripen into title
or warrant the presumption of a grant or of a dedication. But in this case there is no such evidence, and the claims of plaintiffs,
whether regarded as members of the public asserting a right to use the road as such, or as persons claiming a private
easement of way over the land of another must be regarded as resting upon the mere fact of user.

If the owner of a tract of land, to accommodate his neighbors or the public in general, permits them to cross his property, it is
reasonable to suppose that it is not his intention, in so doing, to divest himself of the ownership of the land so used, or to
establish an easement upon it, and that the persons to whom such permission, tacit or express, is granted, do not regard their
privilege of use as being based upon anything more than the mere tolerance of the owner. Clearly, such permissive use is in its
inception based upon an essentially revocable license. If the use continues for a long period of time, no change being made in
the relations of the parties by any express or implied agreement, does the owner of the property affected lose his right of
revocation? Or, putting the same question in another form, does the mere permissive use ripen into title by prescription?

It is a fundamental principle of the law in this jurisdiction concerning the possession of real property that such possession is not
affected by acts of a possessory character which are "merely tolerated" by the possessor, which are or due to his license (Civil
Code, arts. 444 and 1942). This principle is applicable not only with respect to the prescription of the dominium as a whole, but
to the prescription of right in rem. In the case of Cortes vs. Palanca Yu-Tibo (2 Phil. Rep., 24, 38), the Court said:

The provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated produce no effect with respect
to possession is applicable as much 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
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. (Citations omitted)

Possession, under the Civil Code, to constitute the foundation of a prescriptive right, must be possession under claim of title
(en concepto de dueo), or to use the common law equivalent of the term, it must be adverse. Acts of possessory character
performed by one who holds by mere tolerance of the owner are clearly not en concepto de dueo, and such possessory acts,
no matter how long so continued, do not start the running of the period of prescription. 16

Following the foregoing disquisition, the petitioners claim that it had acquired the easement of right-of-way by prescription
must perforce fail. As intimated above, possession is the fundamental basis of prescription, whether ordinary or extraordinary.
The petitioner never acquired the requisite possession in this case. Its use of that portion of the subject property where it
erected the wooden poles and transmission lines was due merely to the tacit license and tolerance of the respondents. As
such, it cannot be made the basis of the acquisition of an easement of right-of-way by prescription.

Neither can the petitioner invoke Section 3(i) of its Charter (Rep. Act No. 6395, as amended) to put up the defense of
prescription against the respondents. The said provision reads in part:

Sec. 3(i). The Corporation or its representatives may also enter upon private property in the lawful performance or
prosecution of its business or purposes, including the construction of transmission lines thereon; Provided, that the owner of
such private property shall be paid the just compensation therefor in accordance with the provisions hereinafter
provided; Provided, further, that any action by any person claiming compensation and/or damages shall be filed within five
years after the right-of-way, transmission lines, substations, plants or other facilities shall have been established: Provided,
finally, that after the said period no suit shall be brought to question the said right-of-way, transmission lines, substations,
plants or other facilities nor the amounts of compensation and/or damages involved;

Two requisites must be complied before the above provision of law may be invoked:

1. The petitioner entered upon the private property in the lawful performance or prosecution of its businesses or purposes; and

2.The owner of the private property shall be paid the just compensation therefor.

As correctly asserted by the respondents, Section 3(i) of Rep. Act No. 6395, as amended, presupposes that the petitioner had
already taken the property through a negotiated sale or the exercise of the power of eminent domain, and not where, as in this
case, the petitioner was merely temporarily allowed to erect wooden electrical posts and transmission lines on the subject
property. Significantly, the provision uses the term "just compensation," implying that the power of eminent domain must first
be exercised by the petitioner in accordance with Section 9, Article III of the Constitution, which provides that "no private
property shall be taken for public use without just compensation."

This Courts ruling in Lopez vs. Auditor General17 is likewise in point:

The petitioner brought this case to this Court on the sole issue of prescription. He cites Alfonso vs. Pasay City in which a lot
owner was allowed to bring an action to recover compensation for the value of his land, which the Government had taken for
road purposes, despite the lapse of thirty years (1924-1954). On the other hand, the respondents base their defense of
prescription on Jaen vs. Agregado which held an action for compensation for land taken in building a road barred by
prescription because it was brought after more than ten years (i.e., thirty three years, from 1920 to 1953). They argue that the
ruling in Alfonso cannot be applied to this case because, unlike Alfonso who made repeated demands for compensation within
ten years, thereby interrupting the running of the period of prescription, the petitioner here filed his claim only in 1959.

It is true that in Alfonso vs. Pasay City this Court made the statement that "registered lands are not subject to prescription and
that on grounds of equity, the government should pay for private property which it appropriates though for the benefit of the
public, regardless of the passing of time." But the rationale in that case is that where private property is taken by the
Government for public use without first acquiring title thereto either through expropriation or negotiated sale, the owners action
to recover the land or the value thereof does not prescribe. This is the point that has been overlooked by both parties.

On the other hand, where private property is acquired by the Government and all that remains is the payment of the price, the
owners action to collect the price must be brought within ten years otherwise it would be barred by the statue of limitations.18

Thus, the five-year period provided under Section 3(i) of Rep. Act No. 6395, as amended, within which all claims for
compensation and/or damages may be allowed against the petitioner should be reckoned from the time that it acquired title
over the private property on which the right-of-way is sought to be established. Prior thereto, the claims for compensation
and/or damages do not prescribe. In this case, the findings of the CA is apropos:

Undeniably, NPC never acquired title over the property over which its wooden electrical posts and transmission lines were
erected. It never filed expropriation proceedings against such property. Neither did it negotiate for the sale of the same. It was
merely allowed to temporarily enter into the premises. As NPCs entry was gained through permission, it had no intention to
acquire ownership either by voluntary purchase or by the exercise of eminent domain.19

The petitioner instituted the expropriation proceedings only on December 12, 1995. Indisputably, the petitioner never acquired
title to that portion of the subject property where it erected the wooden electrical posts and transmission lines. Until such time,
the five-year prescriptive period within which the respondents right to file an action to claim for compensation and/or damages
for the petitioners use of their property does not even commence to run. The CA thus correctly ruled that Section 3(i) of Rep.
Act No. 6395, as amended, finds no application in this case and that the respondents action against the petitioner has not
prescribed.

With respect to the damages awarded in favor of the respondents, the petitioner avers, thus:

The Court of Appeals erred in affirming the award of nominal and moral damages, attorneys fees and costs of litigation.

It follows from Section 31(c) of R.A. 6395 that the award moral and nominal damages, as well as attorneys fees and costs are
baseless. The right to claim them has likewise prescribed. 20

With our ruling that the claims of the respondents had not prescribed, the petitioners contention that the respondents are not
entitled to moral and nominal damages and attorneys fees must fail. In affixing the award for moral and nominal damages and
attorneys fees, the CA ratiocinated:

With respect to the fourth assignment of error, this Court is not persuaded to reverse much less modify the court a
quos findings.

An award of moral damages would require certain conditions to be met, to wit: (1) first, there must be an injury, whether
physical, mental or psychological, clearly sustained by the claimant; (2) second, there must be a culpable act or omission
factually established; (3) third, the wrongful act or omission of the defendant is the proximate cause of the injury sustained by
the claimant; and (4) fourth, the award of damages is predicated on any of the cases stated in Article 2219 of the Civil Code.

NPC made it appear that it negotiated with the appellees when no actual negotiations took place. This allegation seriously
affected the on-going sale of the property to Solar Resources, Inc. as appellees seemed to have sold the property knowing
fully well that a portion thereof was being expropriated. Such an act falls well within Article 21 of the Civil Code. NPCs
subterfuge certainly besmirched the reputation and professional standing of Justice Jose C. Campos, Jr. and Professor Maria
Clara A. Lopez-Campos, and caused them physical suffering, mental anguish, moral shock and wounded feelings.

The records show that Justice Campos career included, among other[s], being a Professor of Law at the University of the
Philippines; Acting Chairman of the Board of Transportation; Presiding Judge of the Court of First Instance of Pasay City, and
Associate Justice of the Court of Appeals. Such career reached its apex when he was appointed Associate Justice of the
Supreme Court in 1992. Justice Campos was a member of the Judicial and Bar Council when NPC filed its Civil Case No.
1174-95. Professor Maria Clara A. Lopez-Campos is a noted authority in Corporate and Banking Laws and is a Professor
Emerita of the University of the Philippines from 1981 to the present. She had taught more than three decades at the College
of Law. Against such backdrop, it does not take too much imagination to conclude that the oppressive and wanton manner in
which NPC sought to exercise its statutory right of eminent domain warranted the grant of moral damages.

On the award of nominal damages, such are adjudicated in order that a right of the plaintiff, which has been violated or invaded
by the defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by
him. As previously discussed, it does not brood well for a government entity such as NPC to disregard the tenets of private
property enshrined in the Constitution. NPC not only intentionally trespassed on appellees property and conducted
engineering surveys thereon but also sought to fool the appellees caretaker by claiming that such entry was authorized.
Moreover, NPC even justifies such trespass as falling under its right to expropriate the property. Under the circumstances, the
award of nominal damages is sustained.

That NPCs highhanded exercise of its right of eminent domain constrained the appellees to engage the services of counsel is
obvious. As testified upon, the appellees engaged their counsel for an agreed fee of P250,000.00. The trial court substantially
reduced this to P150,000.00. Inasmuch as such services included not only the present action but also those for Civil Case No.
1174-95 erroneously filed by NPC with the Regional Trial Court of Imus, Cavite, and the Petition for Certiorari in CA-GR No.
41782, this Court finds such attorneys fees to be reasonable and equitable. 21

We agree with the CA.

The award of moral damages in favor of the respondents is proper given the circumstances obtaining in this case. As found by
the CA:

NPC made it appear that it negotiated with the appellees when no actual negotiation took place. This allegation seriously
affected the on-going sale of the property to Solar Resources, Inc. as appellees seemed to have sold the property knowing
fully well that a portion thereof was being expropriated. Such an act falls well within Article 21 of the Civil Code. NPCs
subterfuge certainly besmirched the reputation and professionally standing of Justice Jose C. Campos, Jr. and Professor
Maria Clara A. Lopez-Campos, and caused them physical suffering, mental anguish, moral shock and wounded feelings.

The records show that Justice Campos career included, among other[s], being a Professor of Law at the University of the
Philippines; Acting Chairman of the Board of Transportation; Presiding Judge of the Court of First Instance of Pasay City, and
Associate Justice of the Court of Appeals. Such career reached its apex when he was appointed Associate Justice of the
Supreme Court in 1992. Justice Campos was a member of the Judicial and Bar Council when NPC filed its Civil Case No.
1174-95. Professor Maria Clara A. Lopez-Campos is a noted authority in Corporate and Banking Laws and is a Professor
Emerita of the University of the Philippines from 1981 to the present. She had taught more than three decades at the College
of Law. Against such backdrop, it does not take too much imagination to conclude that the oppressive and wanton manner in
which NPC sought to exercise its statutory right of eminent domain warranted the grant of moral damages.22

Further, nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the
defendant, may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by
him.23 Similarly, the court may award nominal damages in every case where any property right has been invaded. 24 The
petitioner, in blatant disregard of the respondents proprietary right, trespassed the subject property and conducted
engineering surveys thereon. It even attempted to deceive the respondents caretaker by claiming that its agents were
authorized by the respondents to enter the property when in fact, the respondents never gave such authority. Under the
circumstances, the award of nominal damages is likewise warranted.

Finally, the award of attorneys fees as part of damages is deemed just and equitable considering that by the petitioners
unjustified acts, the respondents were obviously compelled to litigate and incur expenses to protect their interests over the
subject property.25

WHEREFORE, the petition is hereby DENIED for lack of merit. The assailed Decision dated June 16, 2000 of the Court of
Appeals in CA-G.R. CV No. 54265 is AFFIRMED in toto.

SO ORDERED.

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 1dated
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, 19359 to evidence the sale of the land to Magdaleno Valdez, Sr.; several original real estate tax
receipts10 including Real Property Tax Receipt No. 393511 dated 1922 in the name of Graciano de los Reyes, husband of
Feliciana Santillan, and Real Property Tax Receipt No. 0949112 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 Bogo-Medellin Milling Company;15 a Survey
Notification Card;16 Lot Data Computation for Lot No. 954;17 a Cadastral Map for Medellin Cadastre18 as well as the
testimonies of Vicente Basmayor, Geodetic Engineer and property custodian for Bomedco, and Rafaela A. Belleza, Geodetic
Engineer and Chief of the Land Management Services of the DENR, Region VIII.

In its decision dated November 27, 1991, the trial court 19 rejected Bomedco's defense of ownership on the basis of a prior sale,
citing that its evidence a xerox copy of the Deed of Sale dated March 18, 1929 was inadmissible and had no probative
value. Not only was it not signed by the parties but defendant Bomedco also failed to present the original copy without valid
reason pursuant to Section 4, Rule 130 of the Rules of Court. 20

Nonetheless, the trial court held that Bomedco had been in possession of Cadastral Lot No. 954 in good faith for more than 10
years, thus, it had already acquired ownership of the property through acquisitive prescription under Article 620 of the Civil
Code. It explained:

Under Article 620 of the Civil Code, CONTINUOUS and APPARENT easements can be acquired by prescription after ten (10)
years. The "apparent" characteristic of the questioned property being used by defendant as an easement is no longer at issue,
because plaintiffs themselves had acknowledged that the existence of the railway tracks of defendant Bomedco was already
known by the late Magdaleno Valdez, herein plaintiffs predecessor-in-interest, before the late Magdaleno Valdez purchased in
1935 from the late Feliciana Santillan the land described in the Complaint where 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:

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 (10,000.00)
PESOS AS REASONABLE ATTORNEYS FEES.

Petitioner Bomedco reiterates its claim of ownership of the land through extraordinary acquisitive prescriptionunder 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 ownership of the lot, these receipts showed that
all petitioner had was possession by virtue of the right of way granted to it. Were it not so and petitioner really owned the land,
petitioner would not have consistently used the phrases "central railroad right of way" and "sugar central railroad right of way"
in its tax declarations until 1963. Certainly an owner would have found no need for these phrases. A person cannot have an
easement on his own land, since all the uses of an easement are fully comprehended in his general right of ownership. 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.1wphi1

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 a contractual right of way with the heirs for the continued
use of the land under the principles of voluntary easements or (b) it had filed a case against the heirs for conferment on it of a
legal easement of right of way under Article 629 of the Civil Code, then title over the use of the land is deemed to exist. 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 10,000 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 10,000.

SO ORDERED.