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

and COURT
OF APPEALS, respondents.
SARMIENTO, J.:p
This is an appeal filed by way of a petition for review on certiorari under Rule 45 of the Rules of Court.
The petitioner raises two questions: (1) whether or not the Court of Appeals 1 erred in reversing the trial
court which had rendered summary judgment; and (2) whether or not it erred in holding that an
easement had been extinguished by merger.
We rule for the petitioner on both counts.
It appears that the petitioner is the owner of a parcel of land located in Ermita, Manila, covered by
Transfer Certificate of Title No. 157750 of the Register of Deeds of Manila. The same lies in the vicinity of
another parcel, registered in the name of the private respondent corporation under Transfer Certificate
of Title No. 128784.
The private respondent's title came from a prior owner, and in their deed of sale, the parties thereto
reserved as an easement of way:
. . .a portion thereof measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less,
had been converted into a private alley for the benefit of neighboring estates, this being
duly annotated at the back of the covering transfer Certificate of title per regulations of
the Office of the City Engineer of Manila and that the three meterwide portion of said
parcel along the Pasig River, with an area of ONE HUNDRED SEVENTY NINE (179) SQUARE
METERS, more or less, had actually been expropriated by the City Government, and
developed pursuant to the beautification drive of the Metro Manila Governor. (p. 3,
Record). 2
As a consequence, an annotation was entered in the private respondent's title, as follows:
Entry No. 7712/T-5000 CONSTRUCTION OF PRIVATE ALLEY It is hereby made of record
that a construction of private alley has been undertaken on the lot covered by this title
from Concepcion Street to the interior of the aforesaid property with the plan and
specification duly approved by the City Engineer subject to the following conditions to wit:
(1) That the private alley shall be at least three (3) meters in width; (2) That the alley shall
not be closed so long as there's a building exists thereon (sic); (3) That the alley shall be
open to the sky; (4) That the owner of the lot on which this private alley has been
constituted shall construct the said alley and provide same with concrete canals as per
specification of the City Engineer; (5) That the maintenance and upkeep of the alley shall
be at the expense of the registered owner; (6) That the alley shall remain open at all
times, and no obstructions whatsoever shall be placed thereon; (7) That the owner of the
lot on which the alley has been constructed shall allow the public to use the same, and
allow the City to lay pipes for sewer and drainage purposes, and shall not act (sic) for any
indemnity for the use thereof; and (8) That he shall impose upon the vendee or new
owner of the property the conditions abovementioned; other conditions set forth in Doc.
No. 4236, Page No. 11, Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila. 3
The petitioner claims that ever since, it had (as well as other residents of neighboring estates) made use
of the above private alley and maintained and contributed to its upkeep, until sometime in 1983, when,
and over its protests, the private respondent constructed steel gates that precluded unhampered use.
On December 6, 1984, the petitioner commenced suit for injunction against the private respondent, to
have the gates removed and to allow full access to the easement.

The court a quo shortly issued ex parte an order directing the private respondent to open the gates.
Subsequently, the latter moved to have the order lifted, on the grounds that: (1) the easement referred
to has been extinguished by merger in the same person of the dominant and servient estates upon the
purchase of the property from its former owner; (2) the petitioner has another adequate outlet; (3) the
petitioner has not paid any indemnity therefor; and (4) the petitioner has not shown that the right-ofway lies at the point least prejudicial to the servient estate.
The private respondent's opposition notwithstanding, the trial court issued a "temporary writ of
preliminary injunction to continue up to the final termination of the case upon its merits upon the
posting of a P5,000.00 bond by the plaintiff. 4 (the petitioner herein).
Thereafter, the respondent corporation answered and reiterated its above defenses.
On April 15, 1986, the petitioner moved for summary judgment and the court a quo ruled on the same
as follows:
In view of the foregoing, this Court finds it unnecessary to try this case on the merit (sic) and hereby
resolve (sic) to grant the plaintiffs motion for summary judgment. (pp. 15-107, Record). 5
On January 19, 1987, the trial court rendered judgment against the private respondent, the dispositive
portion of which states:
WHEREFORE, judgment is hereby rendered making permanent the temporary mandatory
injunction, that had been issued against the defendant, and for the defendant to pay the
plaintiff the costs of this suit.
The defendant's counterclaim against the plaintiff is hereby dismissed, for lack of merit.
(Summary Judgment, p. 6). 6
The private respondent appealed to the respondent Court of Appeals.
Meanwhile, the private respondent itself went to the Regional Trial Court on a petition for the
cancellation of the annotation in question. The court granted cancellation, for which the petitioner
instituted CA-G.R. SP No. 13421 of the respondent Court of Appeals which ordered the restoration of the
annotation "without prejudice [to] the final outcome of 7 the private respondent's own appeal (subject of
this petition).
In reversing the trial court which had, as earlier mentioned, rendered summary judgment, the
respondent Court of Appeals held that the summary judgment was improper and that the lower court
erroneously ignored the defense set up by the private respondent that the easement in question had
been extinguished. According to the Appellate Court, an easement is a mere limitation on ownership and
that it does not impair the private respondent's title, and that since the private respondent had acquired
title to the property, "merger" brought about an extinguishment of the easement.
The petitioner submits that the respondent Court of Appeals erred, because the very deed of sale
executed between the private respondent and the previous owner of the property "excluded" the alley in
question, and that in any event, the intent of the parties was to retain the "alley" as an easement
notwithstanding the sale.
As already stated at the outset, the Court finds merit in the petition.
There is no question that an easement, as described in the deed of sale executed between the private
respondent and the seller, had been constituted on the private respondent's property, and has been in
fact annotated at the back of Transfer Certificate of Title No. 128784. Specifically, the same charged the

private respondent as follows: "(6) That the alley shall remain open at all times, and no obstructions
whatsoever shall be placed thereon; (7) That the owner of the lot on which the alley has been
constructed shall allow the public to use the same, and allow the City to lay pipes for sewer and
drainage purposes, and shall not [ask] for any indemnity for the use thereof. . ." 8 Its act, therefore, of
erecting steel gates across the alley was in defiance of these conditions and a violation of the deed of
sale, and, of course, the servitude of way.
The Court then is of the opinion that injunction was and is proper and in denying injunctive relief on
appeal, the respondent Appellate Court committed an error of judgment and law.
It is hardly the point, as the Court of Appeals held, that the private respondent is the owner of the
portion on which the right-of-way had been established and that an easement can not impair ownership.
The petitioner is not claiming the easement or any part of the property as its own, but rather, it is
seeking to have the private respondent respect the easement already existing thereon. The petitioner is
moreover agreed that the private respondent has ownership, but that nonetheless, it has failed to
observe the limitation or encumbrance imposed on the same
There is therefore no question as to ownership. The question is whether or not an easement exists on
the property, and as we indicated, we are convinced that an easement exists.
It is true that the sale did include the alley. On this score, the Court rejects the petitioner's contention
that the deed of sale "excluded" it, because as a mere right-of-way, it can not be separated from the
tenement and maintain an independent existence. Thus:
Art. 617. Easements are inseparable from the estate to which they actively or passively
belong. 9
Servitudes are merely accessories to the tenements of which they form part. 10 Although they are
possessed of a separate juridical existence, as mere accessories, they can not, however, be
alienated 11 from the tenement, or mortgaged separately. 12
The fact, however, that the alley in question, as an easement, is inseparable from the main lot is no
argument to defeat the petitioner's claims, because as an easement precisely, it operates as a limitation
on the title of the owner of the servient estate, specifically, his right to use (jus utendi).
As the petitioner indeed hastens to point out, the deed itself stipulated that "a portion thereof [of the
tenement] measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been converted
into a private alley for the benefit of the neighboring estates. . ." 13 and precisely, the former owner, in
conveying the property, gave the private owner a discount on account of the easement, thus:
WHEREAS, to compensate for the foregoing, the parties hereto agreed to adjust the
purchase price from THREE MILLION SEVEN HUNDRED NINETY THOUSAND FOUR
HUNDRED FORTY PESOS (P3,790,440.) to THREE MILLION FIVE HUNDRED THREE
THOUSAND TWO HUNDRED FORTY PESOS (P3,503,240.00) 14
Hence, and so we reiterate, albeit the private respondent did acquire ownership over the property
including the disputed alley as a result of the conveyance, it did not acquire the right to close that
alley or otherwise put up obstructions thereon and thus prevent the public from using it, because as a
servitude, the alley is supposed to be open to the public.
The Court is furthermore of the opinion, contrary to that of the Court of Appeals, that no genuine merger
took place as a consequence of the sale in favor of the private respondent corporation. According to the
Civil Code, a merger exists when ownership of the dominant and servient estates is consolidated in the
same person. 15 Merger then, as can be seen, requires full ownership of both estates.

One thing ought to be noted here, however. The servitude in question is a personal servitude, that is to
say, one constituted not in favor of a particular tenement (a real servitude) but rather, for the benefit of
the general public.
Personal servitudes are referred to in the following article of the Civil Code:
Art. 614. Servitudes may also be established for the benefit of a community, or of one or
more persons to whom the encumbered estate does not belong. 16
In a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and the
easement pertains to persons without a dominant estate, 17 in this case, the public at large.
Merger, as we said, presupposes the existence of a prior servient-dominant owner relationship, and the
termination of that relation leaves the easement of no use. Unless the owner conveys the property in
favor of the public if that is possible no genuine merger can take place that would terminate a
personal easement.
For this reason, the trial court was not in error in rendering summary judgment, and insofar as the
respondent Court of Appeals held that it (the trial court) was in error, the Court of Appeals is in error.
Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issue as
to the existence of a material fact, and the facts appear undisputed based on the pleadings, depositions,
admissions, and affidavits of record. 18 In one case, this Court upheld a decision of the trial court
rendered by summary judgment on a claim for money to which the defendant interposed the defense of
payment but which failed to produce receipts. 19 We held that under the circumstances, the defense was
not genuine but rather, sham, and which justified a summary judgment. In another case, we rejected the
claim of acquisitive prescription over registered property and found it likewise to be sham, and sustained
consequently, a summary judgment rendered because the title challenged was covered by a Torrens
Certificate and under the law, Torrens titles are imprescriptible. 20
We also denied reconveyance in one case and approved a summary judgment rendered thereon, on the
ground that from the records, the plaintiffs were clearly guilty of laches having failed to act until after
twenty-seven
years. 21 We likewise allowed summary judgment and rejected contentions of economic hardship as an
excuse for avoiding payment under a contract for the reason that the contract imposed liability under
any and all conditions. 22
In the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a sham one, because as
we said, merger is not possible, and secondly, the sale unequivocally preserved the existing easement.
In other words, the answer does not, in reality, tender any genuine issue on a material fact and can not
militate against the petitioner's clear cause of action.
As this Court has held, summary judgments are meant to rid a proceeding of the ritual of a trial where,
from existing records, 23 the facts have been established, and trial would be futile.
What indeed, argues against the posturing of the private respondent and consequently, the
challenged holding of the respondent Court of Appeals as well is the fact that the Court of Appeals
itself had rendered judgment, in its CA-G.R. No. 13421, entitled Solid Manila Corporation v. Ysrael, in
which it nullified the cancellation of the easement annotated at the back of the private respondent's
certificate of title ordered by Judge Ysrael in LRC Case No. 273. As the petitioner now in fact insists, the
Court of Appeals' judgment, which was affirmed by this Court in its Resolution dated December 14,
1988, in G.R. No. 83540, is at least, the law of the case between the parties, as "law of the case" is
known in law, e.g.:

xxx xxx xxx

Law of the case has been defined as the opinion delivered on a former appeal. More
specifically, it means that whatever is once irrevocably established as the controlling legal
rule of decision between the same parties in the same case continues to be the law of the
case, whether correct on general principles or not, so long as the facts on which such
decision was predicated continue to be the facts of the case before the court. (21 C.J.S.
330) (Emphasis supplied).
It may be stated as a rule of general application that, where the evidence on a second or
succeeding appeal is substantially the same as that on the first or preceding appeal, all
matters, questions, points, or issues adjudicated on the prior appeal are the law of the
case on all subsequent appeals and will not be considered or readjudicated therein. (5
C.J.S. 1267) (Emphasis supplied.)
In accordance with the general rule stated in Section 1821, where, after a definite
determination, the court has remanded the cause for further action below, it will refuse to
examine question other than those arising subsequently to such determination and
remand, or other than the propriety of the compliance with its mandate; and if the court
below has proceeded in substantial conformity to the directions of the appellate court, its
action will not be questioned on a second appeal.
As a general rule a decision on a prior appeal of the same case is held to be the law of the
case whether that decision is right or wrong, the remedy of the party deeming himself
aggrieved being to seek a rehearing. (5 C.J.S. 1276-77). (Emphasis supplied.)
Questions necessarily involved in the decision on a former appeal will be regarded as the
law of the case on a subsequent appeal, although the questions are not expressly treated
in the opinion of the court, as the presumption is that all the facts in the case bearing on
the point decided have received due consideration whether all or none of them are
mentioned in the opinion. (5 C.J.S. 1286-87). (Emphasis supplied.) 24
CA-G.R. No. 13421 is the law of the case because clearly, it was brought to determine the rights of the
parties regarding the easement, subject of the controversy in this case, although as a petition for
"cancellation of annotation" it may have, at a glance, suggested a different cause of action.
And for reasons of fair play, the private respondent can not validly reject CA-G.R. No. 13421 as the law
of the case, after all, it was the one that initiated the cancellation proceedings with the Regional Trial
Court in LRC No. 273 that precipitated that appeal. In the second place, the proceedings for cancellation
of annotation was in fact meant to preempt the injunction decreed by the lower court in this case.
Plainly and simply, the private respondent is guilty of forum-shopping, as we have described the term:
xxx xxx xxx
There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party
seeks a favorable opinion (other than by appeal or certiorari) in another. The principle
applies not only with respect to suits filed in the courts but also in connection with
litigations commenced in the courts while an administrative proceeding is pending, as in
this case, in order to defeat administrative processes and in anticipation of an unfavorable
administrative ruling and a favorable court ruling. This is specially so, as in this case,
where the court in which the second suit was brought, has no jurisdiction. 25
to which contempt is a penalty.

26

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

2. NORTH NEGROS SUGAR CO., plaintiff-appellant, vs. SERAFIN HIDALGO, defendant-appellee.

RECTO, J.:
On October 12, 1933, the plaintiff filed before the Court of First Instance of Occidental Negros a
complaint praying, upon the allegations contained therein, that in an injunction be issued, restraining
the defendant from entering or passing through the properties of the plaintiff, specially through the "mill
site" of plaintiff's sugar central.
It appears that the plaintiff is the owner of a site in which is located its sugar central, with its factory
building and residence for its employees and laborers, known as the "mill site." It also owns the
adjoining sugar plantation known as Hacienda "Begoa." Across its properties the plaintiff constructed a
road connecting the "mill site" with the provincial highway. Through this road plaintiff allowed and still
allows vehicles to pass upon payment of a toll charge of P0.15 for each truck or automobile. Pedestrians
are allowed free passage through it.
Immediately adjoining the above-mentioned "mill site" of the plaintiff is the hacienda of Luciano Aguirre,
known as Hacienda "Sagay," where the defendant has a billiard hall and a tuba saloon. Like other
people in and about the place, defendant used to pass through the said road of the plaintiff, because it
was his only means of access to the Hacienda "Sagay" where he runs his billiard hall and tuba saloon.
Later on, by order of the plaintiff, every time that the defendant passed driving his automobile with a
cargo of tuba plaintiff gatekeeper would stop him and prevent him from passing through said road.

Defendant in such cases merely deviated from said road and continued on his way to Hacienda "Sagay"
across the fields of Hacienda "Begoa," likewise belonging to the plaintiff.
The alleged conveyance of tuba to plaintiff's "mill site" or the sale thereof within its property has not
been established by the evidence adduced in this case. This the plaintiff admits in its brief (p.15).
Neither is there any evidence to show that the defendant actually created disturbance in plaintiff's
properties, including its "mill site."
Other pertinent facts will be stated in appropriate places in this decision.
A.
First of all it may be stated that in the case at bar the injunction applied for, constitutes, unlike
the auxiliary and subordinate remedy that it ordinarily is, the principal remedy itself. The relief should
only be granted, therefore, after it has been established not only that the right sought to be protected
exists, but also that the acts against which the injunction is to be directed are violative of said right.
SEC. 164. Circumstances under which a preliminary injunction may be granted. A preliminary
injunction may be granted when it is established, in the manner herein-after provided, to the
satisfaction of the judge granting it:
1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof,
consists in restraining the commission or continuance of the acts complained of either for
a limited period or perpetually;
2. That the commission or continuance of some act complained of during the litigation
would probably work in justice to the plaintiff;
3. That the defendant is doing, or threatens, or is about to do, or in procuring or suffering
to be done, some act probably in violation of the plaintiff's rights, respecting the subject
to the action, and tending to render the judgment ineffectual. (Code of Civil Procedure.)
In order that, at the final trial of a case, an injunction may issue perpetually prohibiting the
repetition or continuation of an act complained of, it is indispensable that it shall have been
proven at trial that he who seeks such a remedy is entitled to ask for it; if he is not, his request
must be denied. (Tumacder vs. Nueva, 16 Phil., 513.)
The extraordinary remedy of injunction will not be granted to prevent or remove a nuisance
unless there is a strong case of pressing necessity, and not because of a trifling discomfort. (De
Ayala vs. Barretto, 33 Phil., 538.)
The existence of a right violated is a prerequisite to the granting of an injunction. . . . A
permanent injunction should not be awarded except in a clear case and to prevent irreparable
injury. (32 C. J., 34-36.)
A court of chancery will not entertain a bill enforce a mere valueless abstract right, and the court
will, on its own motion, raise the point for its own protection. (Dunnom vs. Thomsen, 58 Ill. App.,
390.)
None of these requisites is present in the instant case. There has been a failure to establish either the
existence of a clear and positive right of the plaintiff specially calling for judicial protection through an
extraordinary writ of the kind applied for, or that the defendant has committed or attempts to commit
any act which has endanger or tends to endanger the existence of said right, or has injured or threatens
to injure the same.

In obtaining ex-parte a preliminary injunction in the lower court, the plaintiff made under oath in its
complaint the following allegations, which later turned out to be untrue, or, at least, beyond the capacity
of plaintiff to prove:
3. That on sundry occasions heretofore, the defendant used to go to the said "mill site" of the
plaintiff, passing over the latter's private roads, and there caused trouble among the peaceful
people of the place.
4. That the plaintiff, through its representatives, has prohibited the defendant from entering its
private property, but this notwithstanding, the defendant still persists in repeating his incursions
into the said private roads and "mill site" of the plaintiff, disturbing public order and molesting
plaintiff's employees and their families.
The court, in its order granting the preliminary injunction said:
Considering the said injunction and the sworn statement of its correctness filed by plaintiff's
attorneys 1 and it appearing satisfactorily that the issuance of a preliminary injunction is in order
because of the sufficiency of the grounds alleged, upon the filing of a bond, it is hereby, etc. . . . .
After obtaining the preliminary injunction, the plaintiff amended its complaint by eliminating therefrom
those very allegations upon which the court granted the temporary remedy, namely, the acts imputed to
the defendant "of causing trouble among the peaceful people of plaintiff's "mill site," and of disturbing
public order and molesting plaintiff's employees and their families within the private roads and the "mill
site" of the plaintiff." The plaintiff doubtless overlooked the fact that the allegation it availed of to obtain
a preliminary injunction was necessary to secure one of a permanent character. In its new complaint, its
only grievance is that the defendant insists in passing through its property to take tuba to the Hacienda
"Sagay" (which does not belong to the plaintiff but to Luciano Aguirre, and where the defendant has
established a legitimate business). The amended complaint no longer alleges that the defendant went to
the "mill site" and to the private roads of the plaintiff "to cause trouble, disturb public order and molest
plaintiff's employees and their families."
It develops, however, that neither the original complaint nor the one amended states how and why the
mere passage of the defendant over plaintiff's estate to convey tuba to the Hacienda "Sagay" has
caused damages to the plaintiff's property rights, requiring the unusual intervention and prohibition
thereof by the courts through injunctive relief. The plaintiff failed not only to make any allegation to this
effect, but also to the state that the road on its property where the defendant used to pass on his way to
the Hacienda "Sagay" was open to the public in general, and that the plaintiff, exercising without any
permit a power exclusively lodged in the state by reason of its sovereign capacity, required the payment
of passage fees for the use of said road.
Now, there being no contention here that the defendant, in passing over plaintiff's estate to take tuba to
the Hacienda "Sagay," occasioned damages to such estate, or that he sold tuba within the confines
thereof, what could have been the basis of the plaintiff's right for which the special protection of the
court is invoked, and of the illegal act laid at defendant's door? Defendant's passage over plaintiff's
property does not, of itself, constitute an unlawful act inasmuch as the plaintiff, of its own accord,
opened the same to the public conditioned only upon the payment of transit fees by motor vehicles.
Neither does the mere transportation of tuba over plaintiff's estate amount to a violation of the latter's
property rights, unless the goods' destination be at any point within the confines thereof, or unless the
said goods be sold in transit to the laborers and employees of the plaintiff, which, as plaintiff itself
admits in his brief. (p. 15), has not been shown.
The deduction from plaintiff's evidence is, that the real damage which it seeks to avoid does not consist
in defendant's taking tuba with him while traversing the former's property, as there is no causal relation
between the act and any resultant damage, but in the fact that tuba is disposed of at the Hacienda
"Sagay" to which plaintiff's laborers have access. What should, therefore, be enjoined, if it were legally

possible, is defendant's sale of tuba at the Hacienda "Sagay," and not its conveyance across plaintiff's
estate. But if, as plaintiff concedes (brief, p. 16), the former cannot legally enjoined, least of all can the
latter be restrained as long as the public in general is free to go about the said property and it has not
been shown that the defendant, in passing through, it has occasioned damage thereto or has committed
any act infringing plaintiff's property rights or has refused to pay the required road toll.
Defendant's sale of tuba at the Hacienda "Sagay" is nothing more than the exercise of a legitimate
business, and no real damage to the third persons can arise from it as a natural and logical
consequence. The bare possibility that plaintiff's laborers, due to the contiguity of the Hacienda
"Sagay" to its property, might come to the defendant's store to imbibe tuba to drunkenness, does not
warrant the conclusion that the defendant, in thus running this business, impinges upon plaintiff's
property rights and should thereby be judicially enjoined. The damage which plaintiff seeks to enjoin by
this action does not consist, as has been demonstrated, in defendant's maintaining a tubastore at the
Hacienda "Sagay," or in defendant's crossing its property while taking tuba to the Hacienda "Sagay,"
but in its laborers finding their way to the said hacienda in order to buy tuba and become drunk. In other
words, the act sought to be restrained as injurious or prejudicial to plaintiff's interests, is that
committed, not by the defendant, but by plaintiff's own laborers. Rightly and logically, the injunction
should be directed against said laborers to the end that they should abstain from going to the Hacienda
"Sagay" in order to buy tuba and become drunk. As it would seem unusual for the plaintiff to do this, it
should at least exercise stricter vigilance and impose rigorous discipline on its laborers by, for instance,
punishing drunkenness with expulsion. Plaintiff's remedy lies in its own hand and should not be looked
for in the courts at the sacrifice of other interests no less sacred and legitimate than the plaintiff's.
Where one has a right to do a thing equity has no power to restrain him from doing it.
(Dammann vs. Hydraulic Clutch Co., 187 Pac., 1069.) Acts under the authority of the law will not be
enjoined (Bonaparte vs. Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617, Baldw., 205). Lawful exercise of
rights incidentally injuring others may not be enjoined by injunction. (14 R. C. L., 369.) "It is . . . an
established principle that one may not be enjoined from doing lawful acts to protect and enforce his
rights of property or of persons, . . . ." (14 R. C. L., pp. 365, 366.)
It is said that the plaintiff seeks to enjoin the defendant, not from selling tuba at his store in the
Hacienda "Sagay," but from passing through its property to introduce tuba to said hacienda (plaintiff's
brief, p. 16.) The legal rule, however, is that what the law does not authorize to be done directly cannot
be hone indirectly. If the plaintiff cannot judicially enjoin the defendant from selling tuba at the Hacienda
"Sagay," neither can it obtain said injunction to prevent him from passing over its property to
transport tuba to that place as long as the defendant is ready to pay the transit fees required by the
plaintiff and does not sell the said goods inside the said property.
Suppose that the defendant, instead of being a tuba vendor, is a social propagandist whose preachings,
while not subversive of the established legal order, are not acceptable to some capitalistic organizations,
say the plaintiff. Suppose that the defendant, armed with the corresponding official permit, should desire
to go to Hacienda "Sagay" through plaintiff's estate for the purpose of explaining to the laborers the
advantage of the latter organizing themselves into unions, or joining existing ones, to better defend
their interests. Plaintiff learns in time of the plan and determines to frustrate it in the belief that it would
be prejudicial to its interests for the laborers to be "unionized," while it is for its good that the laborers
be contracted under the so-called "open shop" system. Unable to stop the holding of the meeting
because the same is not to take place on its property may he plaintiff secure an injunction from the
court to prevent the defendant to pass through the said property in order to reach the place of the
meeting, by alleging that the defendant entertains theories of social reform which might poison the
minds of the laborers at the expense of the plaintiff's interests? May the latter, under the same
hypothesis, maintain that the defendant's act in passing through its property, which is open to public
use, constitute trespass or usurpation restrainable by injunction? If the answer to these questions is, as
it must be, in the negative, the present case is not susceptible of a different solution. The only difference
between the two cases is that in the one supposed the dreaded damage to plaintiff's interests is of more
moment and of more lasting effect than in the case at bar.

When a private road has been thrown open to public use, no action for trespass is maintainable against
any person who desires to make use thereof; consequently, an injunction suit likewise does not lie.
Private roads, except where laid out under constitutional provisions authorizing the
condemnation of private property for a private use, are public roads in the sense that they are
open to all who see fit to use them, and it is immaterial that the road is subject to gates and bars,
or that it is merely a cul de sac. Being thus considered as a public road, it necessarily follows
that the owner of the land through which the road is laid out cannot maintain an action of
trespass against any person using it; . . . (50 C. J., pp. 397, 398.)
. . . Where it is clear that the complainant does not have the right that he claims, he is not
entitled to an injunction, either temporary or perpetual, to prevent a violation of such supposed
right. . . . An injunction will not issue to protect a right not in esse and which may never arise or
to restrain an act which does not give rise to a cause of action, . . . . (32 C. J., pp. 34, 35.)
B.

In its brief, plaintiff states:

In transporting the tuba which he sells in his saloon in Hacienda "Sagay" the defendant used to
pass thru the private road of the plaintiff which connects its sugar central with the provincial
road. On this private road the plaintiff has put up a gate under the charge of a keeper, and every
time that the defendant passed with a cargo of tuba the gatekeeper would stop him and remind
him that the tuba was not permitted entry into the private properties of the company, but instead
of heeding this prohibition the defendant would simply deviate from the road and continue on his
way to hacienda "Sagay" by way of the fields of Hacienda "Begoa." which is also the private
property of the plaintiff.

It is deducible from the above statement that, whenever the gatekeeper of the plaintiff prevented the
defendant from passing thru its so-called "private road," on his way to the provincial road to Hacienda
"Sagay," the defendant deviated from said road and carried the tuba across the lands of Hacienda
"Begoa" leading to the Hacienda "Sagay." The evidence discloses that the passageway across the
Hacienda "Begoa," is the same one frequented by carabaos (s. t., 32, 36). Plaintiff intends not only to
prohibit the defendant from using the road in question, but also from crossing the lands of the Hacienda
"Begoa," also belonging to the plaintiff, where carabaos are allowed to roam. An act so shocking to the
conscience, one is reminded, could only have been perpetrated during the feudal period when human
rights were unmercifully sacrificed to property rights. If an injunction should lie in the instant case, it
should be in favor of the defendant and against the plaintiff, to enjoin the latter from obstructing the
former to pass over the road in question to convey tuba to the Hacienda "Sagay." It is indeed strange
that it is the plaintiff and not the defendant that should have applied for the remedy.
. . . An injunction will not be granted when good conscience does not require it, where it will
operate oppressively or contrary to justice, where it is not reasonable and equitable under the
circumstances of the case, or where it will tend to promote, rather than to prevent, fraud and
injustice. . . . (32 C. J., p. 33.) . . . a court of equity may interfere by injunction to restrain a party
from enforcing a legal right against all equity and conscience. . . . (14 R. C. L., pp. 365, 366, par.
66.) . . . The comparative convenience or inconvenience of the parties from granting or
withholding the injunction should be considered, and none should be granted if it would operate
oppressively or inequitably, or contrary to the real justice of the case. This doctrine is well
established. . . . (14 R. C. L., pp. 357, 358, par. 60.)
The power of the courts to issue injunctions should be exercised with great caution and only
where the reason and necessity therefor are clearly established; and while this rule has been
applied more frequently in the case of preliminary and mandatory injunctions, it applies to
injunctions of all classes, and to restraining orders. . . . (32 C. J., pp. 33, 34.)

The writ of injunction will not be awarded in doubtful or new cases not coming within wellestablished principles of equity. (Bonaparte vs. Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617;
Hardesty vs. Taft, 87 Am. Dec., 584.)
C.

Plaintiff's action is frivolous and baseless.

Plaintiff states in the sixth paragraph of its amended complaint:

6. That, in addition, the plaintiff, in the exercise of it property rights, does not want to allow the
entry of the defendant in any part of its estate above mentioned in order to avert any friction or
ill-feeling against him.
The plaintiff, in petitioning the courts for an injunction to avert "friction or ill-feeling" against the
defendant, invoking its sacred property rights, attempts to intrust to them a mission at once beyond
those conferred upon them by the Constitution and the laws, and unbecoming of their dignity and
decorum.
D.
Plaintiff has not established the existence, real or probable of the alleged damage against
which the injunction is invoked.
As has been seen, the allegations of the amended complaint do not justify the granting of an injunction.
The said allegations only state, as the basis of plaintiff's action, that the defendant insists in passing or
"making incursions" on plaintiff's property to take tuba to the Hacienda "Sagay," and the plaintiff wants
to avoid "friction and ill-feeling against him." Such allegations do not imply the existence, of any real
damage to plaintiff's rights which should be enjoined, and do not, therefore, constitute a legal cause of
action. On the other hand, what the plaintiff attempted to establish by its evidence differs from the
allegations of its amended complaint. What said evidence really discloses is not, that the plaintiff had
forbidden the defendant to convey tuba to the Hacienda "Sagay" through plaintiff's estate, but to
introduce tuba into the central or to place tuba on its lands, or, according to Exhibit A, to trespass
illegally on plaintiff's estate. The testimony of the gatekeeper Santiago Plagata and the accountant
Ankerson is as follows:
Q. Why did you detain him? A. Because the Central forbids the bringing of tuba to the Central.
Q. Why does the Central prohibit the entry of tuba? A. The Central prohibits the entry
of tuba there because the laborers, generally, buy tuba, drink it and become drunk, and are
unable to work, and sometimes they fight because they are drunk. (S. t., p. 5.)
Q. Why did you kick them? A. Because the North Negros Sugar Co. prohibits the placing
of tuba on those lands. (S. t., pp. 38, 39.)
Exhibit A, the alleged letter addressed by the plaintiff to the defendant, recites:
Mr. SERAFIN HIDALGO, Driver of Auto, License No. 1085-1935.
Present.
SIR: Effective this date, you are hereby forbidden to trespass upon any of the Company's
properties under penalties of law prescribed for trespass.
NORTH INTEGROS SUGAR CO., INC,.
By: (Sgd.) Y. E. GREENFIELD
Manager

It will be noted that according to this letter, the defendant was enjoined by the plaintiff from passing
thru its properties, whether he carried tuba or not.
Plaintiff's admission in its brief (p. 15) that it has not been established that the defendant has
brought tuba to the "mill site," or has sold it within its property, is fatal to the present action charging
the defendant with said acts.
E.
The well-known principle of equity that "he who comes to equity must come with clean hands"
bars the granting of the remedy applied for by the plaintiff.
It has been already stated that the plaintiff, to obtain a preliminary injunction in this case, alleged under
oath in its original complaint facts which it knew to be false, or, at least, unprobable, because it did not
only eliminate them from the amended complaint which it filed after the issuance of the preliminary
injunction, but it failed to substantiate them at the trial. We refer to the following allegations: "that the
defendant used to go to the "mill site" of the plaintiff passing through plaintiff's private roads and there
cause trouble among peaceful people of the place," and "that notwithstanding the prohibition of the
plaintiff, the defendant insists in repeating his incursions into the said private roads and "mill site" of the
plaintiff, disturbing public order and molesting plaintiff's employees and their families."
If said allegations were true, it is evident that plaintiff was entitled to a preliminary injunction at the
commencement of the trial, and to a permanent injunction after the was rendered. But such is not the
case, as the subsequent theory of the plaintiff, announced in its amended complaint, is not that the
defendant "made incursions into the "mill site" and private roads of the plaintiff, causing trouble,
disturbing public order, and molesting plaintiff's employees and their families," but only that the
defendant, to take tuba to the Hacienda "Sagay," belonging to Luciano Aguirre, insisted in passing
through plaintiff's estate. From all this it follows that the plaintiff in order to obtain a preliminary
injunction, trifled with the good faith of the lower court by knowingly making untrue allegations on
matters important and essential to its cause of action. Consequently, it did not come to court with clean
hands.
Coming into Equity with Clean Hands. The maxim that he who comes into equity must come
with clean hands is, of course, applicable in suits to obtain relief by injunction. Injunction will be
denied even though complainant shows that he has a right and would otherwise be entitled to
the remedy in case it appears that he himself acted dishonestly, fraudulently or illegal in respect
to the matter in which redress is sought, or where he has encouraged, invited or contributed to
the injury sought to be enjoined. However, the general principle that he who comes into equity
must come with clean hands applies only to plaintiff's conduct relation to the very matter in
litigation. The want of equity that will bar a right to equitable relief for coming into court with
unclean hands must be so directly connected with the matter in litigation that it has affected the
equitable relations of the parties arising out of the transaction in question. (32 C. J. pp. 67, 68.)
At this point, attention should be directed to other facts of the case indicative of the censurable attitude
which the plaintiff has taken in connection therewith. On one occasion, the defendant drove his
automobile along the road in question, accompanied by Antonio Dequia, headed for the Hacienda
"Sagay." As they had tuba with them, on reaching the gate they were halted by the gatekeeper. The
defendant and his companion got off the car and unloaded the tuba in order to follow the passageway
across the lands of the Hacienda "Begoa," through which plaintiff's carabaos passed, until they could
reach "Sagay." Thereupon, one Ankerson, accountant and auditor of the plaintiff, arrived and no sooner
he had laid eyes on the tuba containers than he indignantly kicked them and uttered a blasphemy to
both, spilling the contents thereof. The defendant protested and asked Ankerson to indemnify him for
the value of the tuba which had been wasted, to which Ankerson replied that he would make good what
should be paid, and he then and there wrote and handed over a note to the defendant for presentation
to plaintiff's cashier. The defendant presented the note, but this claim was not paid, and instead he was
prosecuted for trespass in the justice of the peace court of Manapla under article 281 of the Revised

Penal Code. So absurd and malicious was the charge that the court, in acquitting the defendant, entered
the following order (Exhibit 3):
A peaceful citizen who passes through a private road open to the public does not commit the
crime of trespass. Although the prohibition to the accused to be in a private property should be
manifest, if the latter is not fenced or uninhabited, the mere fact that the accused is found on the
place in question, for a lawful purpose, does not constitute the crime of trespass defined and
punished under article 281 of the Revised Penal Code.
The plaintiff did not stop at this; it filed the present action for injunction which, as has been seen, is
nothing more than the culmination of a series of affronts which the plaintiff has perpetrated, privately
and through the courts, against the defendant.
F.
The exercise of discretion by trial courts in matters injunctive should not be interfered with by
appellate courts except in cases of manifest abuse.
. . . The court which is to exercise the discretion is the trial court and not the appellate court. The
action of the court may be reviewed on appeal of error in case of a clear abuse of discretion, but
not otherwise, and ordinarily mandamus will not lie to control such discretion. (32 C. J., sec. 11, p.
33.)
True, the rule has particular application to preliminary injunctions, but the rule should not be otherwise
with respect to permanent injunctions especially where, as in this case, the trial court, after granting the
preliminary injunction, set the same aside in its final decision on a careful review of the evidence.
II
It is undisputed the road in question was constructed by the plaintiff on its own land, and that it
connects the central or the "mill site" with the provincial road. We have also the admission that the
plaintiff made this road accessible to the general public, regardless of class or group of persons or
entities. Its use has been extended to employees and laborers of the plaintiff; and so also to all those
who have a mind to pass through it, except that, in cases of motor vehicles, a passage fee of P0.15,
each should be paid. There is no contention here that the defendant had refused to pay said tolls
whenever he wanted to drive his car along the road in question.
We, therefore, have the case of an easement of way voluntarily constituted in favor of a community. Civil
Code articles 531 and 594 read:
ART. 531. Easements may also be established for the benefit of one or more persons or of a
community to whom the encumbered estate does not belong.
xxx

xxx

xxx

ART. 594. The owner of an estate may burden it with such easements as he may deem fit, and in
such manner and form as he may consider desirable, provided he does not violate the law or
public order.
There is nothing in the constitution of this easement in violation of law or public order, except perhaps
that the right to open roads and charge passage fees therefor i the State's by right of sovereignty and
may not be taken over by a private individual without the requisite permit. This, however, would affect
the right of the plaintiff to charge tolls, but not that of the defendant or of any other person to make use
of the easement.

As may be seen from the language of article 594, in cases of voluntary easement, the owner is given
ample liberty to establish them: "as he may deem fit, and in such manner and form as he may consider
desirable." The plaintiff "considered it desirable" to open this road to the public in general, without
imposing any condition save the payment of a fifteen-centavo toll by motor vehicles, and it may not now
go back on this and deny the existence of an easement. Voluntary easements under article 594 are not
contractual in nature; they constitute the act of the owner. If he exacts any condition, like the payment
of a certain indemnity for the use of the easement, any person who is willing to pay it may make use of
the easement. If the contention be made that a contract is necessary, it may be stated that a contract
exits from the time all those who desire to make use of the easement are disposed to pay the required
indemnity.
The plaintiff contends that the easement of way is intermittent in nature and can only be acquired by
virtue of a title under article 539. The defendant, however, does not lay claim to it by prescription. The
title in this case consists in the fact that the plaintiff has offered the use of this road to the general
public upon payment of a certain sum as passage fee in case of motor vehicles.
The cases of Roman Catholic Archbishop of Manila vs. Roxas (22 Phil., 450), and Cuaycong vs.
Benedicto (37 Phil., 781), are not controlling, as there the attempt was to establish that the right to an
easement of way had been acquired by prescription. Here defendant's contention is, that while the road
in question remains open to the public, he has a right to its use upon paying the passage fees required
by the plaintiff. Indeed the latter may close it at its pleasure, as no period has been fixed when the
easement was voluntarily constituted, but while the road is thrown open, the plaintiff may not
capriciously exclude the defendant from its use.
Furthermore, plaintiff's evidence discloses the existence of a forcible right of way in favor of the owner
and occupants of the Hacienda "Sagay" under the Civil Code, article 564, because, according to said
evidence, those living in Hacienda "Sagay" have no access to the provincial road except thru the road
in question. Santiago Plagata, principal witness of the plaintiff, testified thus:
Emerging from the provincial road, the defendant has necessarily to pass through this private
road where the gate of which I am the keeper is situated, and then he gets to the Central. (S. t.,
p. 5.)
Q. To go to the Hacienda "Sagay," is there any need to cross the "mill site" of the
Central? A. Yes, sir.
Q. And the property of the Central is passed in going to the Hacienda "Sagay"? A. Yes,
sir.
Q. Is there any other road? A. I am not sure whether there is another road.
Q. For how long have you been a watchman there? A. Nine years to date.
Q. And during that period of nine years, can you not state if there is any road which gives
access to the Hacienda "Sagay"? Or the Central has necessarily to be passed? A. I
cannot say because I do not go to those places.
COURT:
Q. But all the others, except the defendant, who go to the Hacienda "Sagay" necessarily
pass thru the Central? A. They pass thru that road of the Central. (S. t., pp. 16, 17.)
The evidence for the defendant confirms this:

Q. To go there, thru what road did you have to pass? A. Thru the road of the Central.
Q. And by this road of the Central you mean the Central "North Negros Sugar Co., Inc."?
A. Yes, sir.
Q. By this road of the Central which you mentioned, you mean the road where there is a
gate, beginning from the Central until the provincial road, where the gate is for the
purpose of preventing passage? A. Yes, sir, the very one.
Q. And because of that gate, the Central collects certain toll? A. Yes, sir. (S. t., pp. 20,
21.)
III
Having been devoted by the plaintiff to the use of the public in general, upon paying the passage fees
required in the case of motor vehicles, the road in question is charged with a public interest, and while
so devoted, the plaintiff may not establish discriminatory exceptions against any private person.
When private property is affected with a public interest, it ceases to be juris privati only; as if a
man set out a street in new building on his own land, it is now no longer bare private interest, but
is affected by a public interest. (Lord Chief Justice Hale in his treatise "De Portibus Maris, quoted
with approval in Munn vs. Illinois, 94 U. S., 113 [1876], and in Nebbia vs. New York, 291 U. S., 502
[1934].)
The above language was used in the seventeenth century, when exceptions to the individualistic regime
of ownership were scarcely recognized, and when the ideas on its social function may be said to be in
their infancy.
Property does become clothed with a public interest when used in a manner to make it of public
consequence, and affect the community at large. When, therefore, one devotes his property to a
use in which the public has an interest, he, in effect, grants to the public an interest in that use,
and must submit to be controlled by the public for the common good, to the extent of the interest
he has thus created. He may withdraw his grant by discontinuing the use; but, so long as he
maintains the use, he must submit to the control. (Munn vs. Illinois, 94 U. S., 113; 24 Law. ed.,
77.)
Under our form of government the use of property and the making of contracts are normally
matters of private and not of public concern. The general rule is that both shall be free of
governmental interference. But neither property rights nor contract rights are absolute; nor
government cannot exist if the citizen may at will use his property to the detriment of his fellows,
or exercise his freedom of contract to work them harm. Equally fundamental with the private
right is that of the public to regulate in the common interest. . . . The court has repeatedly
sustained curtailment of enjoyment of private property, in the public interest. The owner's rights
may be subordinated to the needs of other private owners whose pursuits are vital to the
paramount interests of the community. (Nebbia vs. New York, 291 U. S., 502, 521, 525; 78 Law.
ed., 940, 948.)
Whenever any business or enterprise becomes so closely and intimately related to the public, or
to any substantial part of a community, as to make the welfare of the public, or a substantial part
thereof, dependent upon the proper conduct of such business, it becomes the subject for the
exercise of the regulatory power of the state. (Clarksburg Light & Heat Co. vs. Public Service
Commission, P. U. R. 1920A, 639; 84 W. Va., 638; 100 S. E., 551.)

. . . If the service is dedicated to the public or some portion thereof, or to persons within a given
area, then any member of the public or of the given class, or any person within the given area,
may demand such service without discrimination, and the public, or so much of it as has occasion
to be served, is entitled to the service of the utility as a matter of right, and not of grace. . . . A
corporation becomes a public service corporation, and therefore subject to regulation as a public
utility, only when and to the extent that the business of such corporation becomes devoted to a
public use. . . . (Stoehr vs. Natatorium Co. 200 Pac. [Idaho], 132, quoted in 18 A. L. R., 766.)
Tested by the rule laid down in Munn vs. Illinois, it may be conceded that the state has the power
to make reasonable regulation of the charges for services rendered by the stockyards company.
Its stock yards are situated in one of the gateways of commerce, and so located that they furnish
important facilities to all seeking transportation of cattle. While not a common carrier, nor
engaged in any distinctively public employment, it is doing a work in which the public has an
interest, and therefore must be considered as subject to government regulation.
(Cotting vs. Godard, 183 U.S., 79; 46 Law. ed., 92.)
Business which, though not public at their inception, may be fairly said to have risen to be such,
and have become subject in consequence to some government regulation. They have come to
hold such a peculiar relation to the public that this is superimposed upon them. In the language
of the cases, the owner, by devoting his business to the public use, in effect, grants the public an
interest in that use, and subjects himself to public regulation to the extent of that interest,
although the property continues to belong to its private owner, and to be entitled to protection
accordingly. (Munn vs. Illinois, supra; Spring Valley Waterworks vs.Schottler, 110 U. S., 347; 28 L.
ed., 173; 4 Sup. Ct. Rep., 48; People vs. Budd, 117 N. Y., 1, 27; 5 L. R. A., 559; 15 Am. St. Rep.,
460; 22 N. E., 670; s. c. 143 U. S., 517; 36 L. ed., 247; 4 Inters. Com. Rep., 45; 12 Sup. Ct. Rep.,
468; Brass vs. North Dakota, 153 U. S., 391; 38 L. ed., 757; 4 Inters. Com. Rep., 670; 14 Sup. Ct.
Rep., 857; Noble State Bank vs. Haskell, 219 U. S., 104; 55 L. ed., 112; 32 L. R. A. [N. S.], 1062;
31 Sup. Ct. Rep., 186; Ann. Cas., 1912A, 487; German Alliance Ins. Co. vs. Lewis, 233 U.S., 389;
58 L. ed., 1011; L. R. A. 1915C, 1189; 34 Sup. Ct. Rep., 612; VanDyke vs. Geary, 244 U. S., 39, 47;
61 L. ed., 973, 981; 37 Sup. Ct. Rep., 483, Block vs. Hirsh, 256 U. S., 135; 65 L. ed., 865; 16 A. L.
R., 165; 41 Sup. Ct. Rep., 458.) Wolff Packing Co. vs. Court of Industrial Relations, 262 U. S. 522;
27 A. L. R., 1280, 1286.)
Under the facts of the instant case, the road in question is of the nature of the so-called "turnpike road"
or "toll-road." The following authorities are, therefore, in point:
""Toll" is the price of the privilege to travel over that particular highway, and it is a quid pro quo.
It rests on the principle that he who, receives the toll does or has done something as an
equivalent to him who pays it. Every traveler has the right to use the turnpike as any other
highway, but he must pay the toll. (City of St. Louis vs.Creen, 7 Mo. App., 468, 476.)
A toll road is a public highway, differing from the ordinary public highways chiefly in this: that the
cost of its construction in the first instance is borne by individuals, or by a corporation, having
authority from the state to build it, and, further, in the right of the public to use the road after
completion, subject only to the payment of toll. (Virginia Caon Toll Road Co. vs. People, 45 Pac.,
396, 399; 22 Colo., 429; 37 L. R. A., 711.)
Toll roads are in a limited sense public roads, and are highways for travel, but we do not regard
them as public roads in a just sense, since there is in them a private proprietary right. . . . The
private right which turnpike companies possess in their roads deprives these ways in many
essential particulars of the character of public roads. It seems to us that, strictly speaking, toll
roads owned by private corporation, constructed and maintained for the purpose of private gain,
are not public roads, although the people have a right to freely travel them upon the payment of
the toll prescribed by law. They are, of course, public, in a limited sense, but not in such a sense
as are the public ways under full control of the state, for public ways, in the strict sense, are

completely under legislative control. (Elliott, Roads & S., p. 5.) (Board of Shelby County
Com'rs vs.Castetter, 33 N. E., 986, 987; 7 Ind. App., 309.)
It has been suggested during the consideration of the case at bar that the only transportation
companies with motor vehicles who can have an interest in passing over the said road are those which
carry laborers of the central and passengers who transact business with the plaintiff, and not all public
service motor vehicles with certificates of public convenience, and that the only persons who may have
an interest in passing over the said road are the laborers of the plaintiff and persons who do business
with it and the occupants of the 21 houses situated in the Hacienda "Sagay," and not everyone for
personal convenience. But even if this were true, the plaintiff having subjected the road in question to
public use, conditioned only upon the payment of a fifteen-centavo passage fees by motor vehicles,
such circumstance would not affect the case at all, because what stamps a public character on a private
property, like the road in question, is not the number of persons who may have an interest in its use, but
the fact that all those who may desire to use it may do so upon payment of the required indemnity.
. . . The public or private character of the enterprise does not depend, however, upon the number
of persons by whom it is used, but upon whether or not it is open to the use and service of all
members of the public who may require it, to the extent of its capacity; and the fact that only a
limited number of persons may have occasion to use it does not make of it a private undertaking
if the public generally has a right to such use. . . . (51 C. J., sec. 2, p. 5.)
The test is, not simply how many do actually use them, but how many may have a free and
unrestricted right in common to use them. If it is free and common to all citizens, then no matter
whether it is or is not of great length, for whether it leads to or from a city, village or hamlet, or
whether it is much or little used, it is a "public road." (Heninger vs. Peery, 47 S. E., 1013, 1014;
102 Va., 896, quoting Elliott, Roads & S., secs. 11, 192.)
The circumstance that the road in question does not properly fall within the definition of a public utility
provided in Act No. 3108, does not divest it to this character:
. . . Whether or not a given business, industry, or service is a public utility does not depend upon
legislative definition, but upon the nature of the business or service rendered, and an attempt to
declare a company or enterprise to be a public utility, where it is inherently not such, is, by virtue
of the guaranties of the federal constitution, void wherever it interferes with private rights of
property or contract. So a legislature cannot by mere fiat or regulatory order convert a private
business or enterprise into a public utility, and the question whether or not a particular company
or service is a public utility is a judicial one, and must be determined as such by a court of
competent jurisdiction; . . . . (51 C. J., sec. 3, p. 5.)
The road in question being a public utility, or, to be more exact, a private property affected with a public
interest, is not lawful to make arbitrary exceptions with respect to its use and enjoyment.
Duty to Serve Without Discrimination. A public utility is obligated by the nature of its business
to furnish its service or commodity to the general public, or that part of the public which it has
undertaken to serve, without arbitrary discrimination, and it must, to the extent of its capacity,
serve all who apply, on equal terms and without distinction, so far as they are in the same class
and similarly situated. Accordingly, a utility must act toward all members of the public
impartially, and treat all alike; and it cannot arbitrarily select the persons for whom it will perform
its service or furnish its commodity, nor refuse to one a favor or privilege it has extended to
another, since the term "public utility" precludes the idea of service which is private in its nature
and is not to be obtained by the public. Such duties arise from the public nature of a utility, and
statutes providing affirmatively therefor are merely declaratory of the common law. (51 C. J., sec.
16, p. 7.)

The circumstance that the plaintiff is not the holder of a franchise or certificate of public convenience, or
that it is a company devoted principally to the manufacturer of sugar and not to the business of public
service or that the state has not as yet assumed control or jurisdiction over the operation of the road in
question by the plaintiff, does not preclude the idea that the said road is a public utility.
The touchstone of public interest in any business, its practices and charges, clearly is not the
enjoyment of any franchise from the state. (Munn vs. Illinois [94 U. S., 113; 24 L. ed., 77, supra.)
(Nebbia vs. New York,supra.)
The fact that a corporation may not have been given power to engage in the business of a public
utility is not conclusive that it is not in fact acting as a public utility and to be treated as such. (51
C. J., p. 5.)
The question whether or not it is such does not necessarily depend upon whether it has
submitted or refused submit to the regulatory jurisdiction of the state, nor upon whether or not
the state has as yet assumed control and jurisdiction, or has failed or refused so to do. (51 C. J.,
p. 6.)
The fact that a corporation does other business in addition to rendering a public service does not
prevent it from being a public utility, and subject to regulation as such, as to its public business.
(51 C. J., p. 6.)
The term "public utility" sometimes is used to mean the physical property or plant being used in
the service of the public. (51 C. J., p. 6.)
There are . . . decisions in which the incidental service has been held to public regulation and
control. (ReCommonwealth Min. & Mill. Co. [1915; Ariz.], P. U. R., 1915B, 536; Nevada, C. & O.
Teleg. & Teleph. Co. vs.Red River Lumber Co. [1920; Cal.], P. U. R., 1920E, 625; Sandpoint Water &
Light Co. vs. Humberd Lumber Co. [1918; Idaho], P. U. R., 1918B, 535; Public Service
Commission vs. Valley Mercantile Co. [1921; Mont.], P. U. R., 1921D, 803; Public Service
Commission vs. J. J. Rogers Co. [1918], 184 App. Div., 705; P. U. R., 1919A, 876; 172 N. Y. Supp.,
498; Wingrove vs. Public Service Commission [1914], 74 W. Va., 190; L. R. A. 1918A, 210; 81 S.
E., 734; Chambers vs. Spruce Lighting Co. [1918], 81 W. Va., 714; 95 S. E. 192. See
alsoHoff vs. Montgomery [1916; Cal.], P. U. R., 1916D, 880; Re Producers Warehouse [1919; Cal.],
P. U. R., 1920A, 919; Ticer vs. Phillips [1920; Cal.], P. U. R., 1920E, 582; Re Ontario Invest. Co.
[1921; Cal.], P. U. R., 1922A, 181; Bassett vs. Francestown Water Co. [1916; N. H.], P. U. R.,
1916B, 815; Re Northern New York Power Co. [1915; N. Y., 2d Dist.], P. U. R., 1915B, 70.)
(Annotation in 18 A. L. R., 766, 767.)
The point is made that, there being no contract between the plaintiff and the public interested in the use
of the road in question it should be understood that such use has been by the mere tolerance of the
plaintiff, and that said property has not been constituted into a public utility. The contention is devoid of
merit.
When private property is devoted to public use in the business of a public utility, certain reciprocal rights
and duties are raised by implication of law between the utility and the public it undertakes to serve, and
no contract between them is necessary to give rise thereto. . . . (51 C. J., sec. 12 p. 6.)
Wherefore the judgment appealed from is affirmed, with costs to the plaintiff.
3. BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF APPEALS AND HEIRS OF
MAGDALENO VALDEZ SR., respondents.

CORONA, J.:This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to annul and set
aside the decision[1] dated November 17, 1995 of the Court of Appeals, Tenth Division, which reversed
the decision[2] dated November 27, 1991 of the Regional Trial Court of Cebu City, Branch IX, which ruled
in favor of herein petitioner, Bogo-Medellin Milling Company, Inc. and dismissed herein private
respondents' complaint for payment of compensation and/or recovery of possession of real property and
damages with application for restraining order or preliminary injunction; and its resolution dated March
2, 1996 denying petitioner's motion for reconsideration.
The antecedent facts follow.
Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez, Angelina Valdez-Novabos,
Teresita Argawanon-Mangubat and Daylinda Argawanon-Melendres (hereafter the heirs), purchased from
Feliciana Santillan, on December 9, 1935, a parcel of unregistered land covered by Tax Declaration No.
3935 with an area of one hectare, 34 ares and 16 centares, located in Barrio Dayhagon, Medellin, Cebu.
[3]
He took possession of the property and declared it for tax purposes in his name. [4]
Prior to the sale, however, the entire length of the land from north to south was already traversed in
the middle by railroad tracks owned by petitioner Bogo-Medellin Milling Co., Inc. (hereafter
Bomedco). The tracks were used for hauling sugar cane from the fields to petitioners sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents inherited the
land. However, unknown to them, Bomedco was able to have the disputed middle lot which was
occupied by the railroad tracks placed in its name in the Cadastral Survey of Medellin, Cebu in 1965. The
entire subject land was divided into three, namely, Cadastral Lot Nos. 953, 954 and 955. Lot Nos. 953
and 955 remained in the name of private respondents. However, Lot No. 954, the narrow lot where the
railroad tracks lay, was claimed by Bomedco as its own and was declared for tax purposes in its name. [5]
It was not until 1989 when private respondents discovered the aforementioned claim of Bomedco on
inquiry with the Bureau of Lands. Through their lawyer, they immediately demanded the legal basis for
Bomedco's claim over Cadastral Lot No. 954 but their letter of inquiry addressed to petitioner went
unheeded, as was their subsequent demand for payment of compensation for the use of the land. [6]
On June 8, 1989, respondent heirs filed a Complaint for Payment of Compensation and/or Recovery
of Possession of Real Property and Damages with Application for Restraining Order/Preliminary
Injunction against Bomedco before the Regional Trial Court of Cebu. [7] Respondent heirs alleged that,
before she sold the land to Valdez, Sr. in 1935, Santillan granted Bomedco, in 1929, a railroad right of
way for a period of 30 years. When Valdez, Sr. acquired the land, he respected the grant. The right of
way expired sometime in 1959 but respondent heirs allowed Bomedco to continue using the land
because one of them was then an employee of the company. [8]
In support of the complaint, they presented an ancient document an original copy of the deed of
sale written in Spanish and dated December 9, 1935 [9] to evidence the sale of the land to Magdaleno
Valdez, Sr.; several original real estate tax receipts [10] including Real Property Tax Receipt No.
3935[11] dated 1922 in the name of Graciano de los Reyes, husband of Feliciana Santillan, and Real
Property Tax Receipt No. 09491[12] dated 1963 in the name of Magdaleno Valdez, Sr. Magdaleno Valdez,
Jr. also testified for the plaintiffs during the trial.
On the other hand, Bomedcos principal defense was that it was the owner and possessor of
Cadastral Lot No. 954, having allegedly bought the same from Feliciana Santillan in 1929, prior to the
sale of the property by the latter to Magdaleno Valdez, Sr. in 1935. It also contended that plaintiffs
claim was already barred by prescription and laches because of Bomedcos open and continuous
possession of the property for more than 50 years.

Bomedco submitted in evidence a Deed of Sale [13] dated March 18, 1929; seven real estate tax
receipts[14] for the property covering the period from 1930 to 1985; a 1929 Survey Plan of private land
for Bogo-Medellin Milling Company;[15] a Survey Notification Card;[16] Lot Data Computation for Lot No.
954;[17] a Cadastral Map for Medellin Cadastre[18] as well as the testimonies of Vicente Basmayor,
Geodetic Engineer and property custodian for Bomedco, and Rafaela A. Belleza, Geodetic Engineer and
Chief of the Land Management Services of the DENR, Region VIII.
In its decision dated November 27, 1991, the trial court [19] rejected Bomedco's defense of ownership
on the basis of a prior sale, citing that its evidence a xerox copy of the Deed of Sale dated March 18,
1929 was inadmissible and had no probative value. Not only was it not signed by the parties but
defendant Bomedco also failed to present the original copy without valid reason pursuant to Section 4,
Rule 130 of the Rules of Court.[20]
Nonetheless, the trial court held that Bomedco had been in possession of Cadastral Lot No. 954 in
good faith for more than 10 years, thus, it had already acquired ownership of the property through
acquisitive prescription under Article 620 of the Civil Code. It explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT easements can be acquired by
prescription after ten (10) years. The apparent characteristic of the questioned property being used
by defendant as an easement is no longer at issue, because plaintiffs themselves had acknowledged
that the existence of the railway tracks of defendant Bomedco was already known by the late
Magdaleno Valdez, herein plaintiffs predecessor-in-interest, before the late Magdaleno Valdez purchased
in 1935 from the late Feliciana Santillan the land described in the Complaint where defendants railway
tracks is traversing [sic] (TSN of February 5, 1991, pp. 7-8). As to the continuity of defendants use of
the strip of land as easement is [sic] also manifest from the continuous and uninterrupted occupation of
the questioned property from 1929 up to the date of the filing of the instant Complaint. In view of the
defendants UNINTERRUPTED possession of the strip of land for more than fifity (50) years, the Supreme
Courts ruling in the case of Ronquillo, et al. v. Roco, et al. (103 Phil 84) is not applicable. This is
because in said case the easement in question was a strip of dirt road whose possession by the
dominant estate occurs only everytime said dirt road was being used by the dominant estate. Such fact
would necessarily show that the easements possession by the dominant estate was never
continuous. In the instant case however, there is clear continuity of defendants possession of the strip
of land it had been using as railway tracks. Because the railway tracks which defendant had
constructed on the questioned strip of land had been CONTINUOUSLY occupying said easement. Thus,
defendant Bomedcos apparent and continuous possession of said strip of land in good faith for more
than ten (10) years had made defendant owner of said strip of land traversed by its railway
tracks. Because the railway tracks which defendant had constructed on the questioned strip of land had
been continuously occupying said easement [sic]. Thus, defendant Bomedcos apparent and continuous
possession of said strip of land in good faith for more than ten (10) years had made defendant owner of
said strip of land traversed by its railway tracks.
Respondent heirs elevated the case to the Court of Appeals which found that Bomedco did not
acquire ownership over the lot. It consequently reversed the trial court. In its decision dated November
17, 1995, the appellate court held that Bomedco only acquired an easement of right of way
by unopposed and continuous use of the land, but not ownership, under Article 620 of the Civil Code.
The appellate court further ruled that Bomedcos claim of a prior sale to it by Feliciana Santillan was
untrue. Its possession being in bad faith, the applicable prescriptive period in order to acquire
ownership over the land was 30 years under Article 1137 of the Civil Code. Adverse possession of the
property started only in 1965 when Bomedco registered its claim in the cadastral survey of Medellin.
Since only 24 years from 1965 had elapsed when the heirs filed a complaint against Bomedco in 1989,
Bomedcos possession of the land had not yet ripened into ownership.

And since there was no showing that respondent heirs or their predecessor-in-interest was ever paid
compensation for the use of the land, the appellate court awarded compensation to them, to be
computed from the time of discovery of the adverse acts of Bomedco.
Its motion for reconsideration having been denied by the appellate court in its resolution dated
March 22, 1996, Bomedco now interposes before us this present appeal by certiorari under Rule 45,
assigning the following errors:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REVERSED AND SET ASIDE THE
TRIAL COURTS DECISION DISMISSING PRIVATE RESPONDENTS COMPLAINT.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT ORDERED THE PETITIONER TO PAY
THE PRIVATE RESPONDENT THE REASONABLE VALUE OF LOT 954 AND THE AMOUNT OF TEN THOUSAND
(P10,000.00) PESOS AS REASONABLE ATTORNEYS FEES.
Petitioner Bomedco reiterates its claim of ownership of the land through extraordinary acquisitive
prescription under Article 1137 of the Civil Code and laches to defeat the claim for compensation or
recovery of possession by respondent heirs. It also submits a third ground originally tendered by the trial
court acquisition of the easement of right of way by prescription under Article 620 of the Civil Code.
Extraordinary Acquisitive Prescription
Under Art. 1137 of the Civil Code
Petitioners claim of ownership through extraordinary acquisitive prescription under Article 1137 of
the Civil Code cannot be sustained.
There is no dispute that the controversial strip of land has been in the continuous possession of
petitioner since 1929. But possession, to constitute the foundation of a prescriptive right, must be
possession under a claim of title, that is, it must be adverse. [21] Unless coupled with the element of
hostility towards the true owner, possession, however long, will not confer title by prescription. [22]
After a careful review of the records, we are inclined to believe the version of respondent heirs that
an easement of right of way was actually granted to petitioner for which reason the latter was able to
occupy Cadastral Lot No. 954. We cannot disregard the fact that, for the years 1930, 1937, 1949, 1962
and 1963, petitioner unequivocally declared the property to be a central railroad right of way or
sugar central railroad right of way in its real estate tax receipts when it could have declared it to be
industrial land as it did for the years 1975 and 1985. [23] Instead of indicating 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 theycontinuously 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 10year prescriptive period in 1969, petitioner supposedly acquired the easement of right of way over the
subject land.
Following the logic of the courts a quo, if a road for the use of vehicles or the passage of persons is
permanently cemented or asphalted, then the right of way over it becomes continuous in nature. The
reasoning is erroneous.
Under civil law and its jurisprudence, easements are either continuous or discontinuous according
to the manner they are exercised, not according to the presence of apparent signs or physical
indications of the existence of such easements. Thus, an easement is continuous if its use is, or may be,

incessant without the intervention of any act of man, like the easement of drainage; [38] and it is
discontinuous if it is used at intervals and depends on the act of man, like the easement of right of way.
[39]

The easement of right of way is considered discontinuous because it is exercised only if a person
passes or sets foot on somebody elses land. Like a road for the passage of vehicles or persons, an
easement of right of way of railroad tracks is discontinuous because the right is exercised only if and
when a train operated by a person passes over another's property. In other words, the very exercise of
the servitude depends upon the act or intervention of man which is the very essence of discontinuous
easements.
The presence of more or less permanent railroad tracks does not in any way convert the nature of
an easement of right of way to one that is continuous. It is not the presence of apparent signs or
physical indications showing the existence of an easement, but rather the manner of exercise thereof,
that categorizes such easement into continuous or discontinuous. The presence of physical or visual
signs only classifies an easement into apparent or non-apparent. Thus, a road (which reveals a right of
way) and a window (which evidences a right to light and view) are apparent easements, while an
easement of not building beyond a certain height is non-apparent. [40]
In Cuba, it has been held that the existence of a permanent railway does not make the right of way
a continuous one; it is only apparent. Therefore, it cannot be acquired by prescription. [41] In Louisiana, it
has also been held that a right of passage over another's land cannot be claimed by prescription
because this easement is discontinuous and can be established only by title. [42]
In this case, the presence of railroad tracks for the passage of petitioners trains denotes the
existence of an apparent but discontinuous easement of right of way. And under Article 622 of the Civil
Code, discontinuous easements, whether apparent or not, may be acquired only by title. Unfortunately,
petitioner Bomedco never acquired any title over the use of the railroad right of way whether by law,
donation, testamentary succession or contract. Its use of the right of way, however long, never resulted
in its acquisition of the easement because, under Article 622, the discontinuous easement of a railroad
right of way can only be acquired by title and not by prescription.
To be sure, beginning 1959 when the original 30-year grant of right of way given to petitioner
Bomedco expired, its occupation and use of Cadastral Lot No. 954 came to be by mere tolerance of the
respondent heirs. Thus, upon demand by said heirs in 1989 for the return of the subject land and the
removal of the railroad tracks, or, in the alternative, payment of compensation for the use thereof,
petitioner Bomedco which had no title to the land should have returned the possession thereof or should
have begun paying compensation for its use.
But when is a party deemed to acquire title over the use of such land (that is, title over the
easement of right of way)? In at least two cases, we held that if: (a) it had subsequently entered into
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 P10,000
considering the evident bad faith of petitioner in refusing respondents just and lawful claims,
compelling the latter to litigate.[44]
WHEREFORE, the petition is DENIED. The appealed decision dated November 17, 1995 and
resolution dated March 2, 1996 of the Court of Appeals are AFFIRMED with MODIFICATION. Petitioner
Bogo-Medellin Milling Company, Inc. is hereby ordered to vacate the subject strip of land denominated
as Cadastral Lot No. 954, remove its railway tracks thereon and return its possession to the private
respondents, the heirs of Magdaleno Valdez, Sr. It is also hereby ordered to pay private respondents
attorney's fees in the amount of P10,000.
SO ORDERED.
4. COSTABELLA CORPORATION, petitioner, vs.COURT OF APPEALS, KATIPUNAN LUMBER
CO., INC., AURORA BUSTOS LOPEZ, MANUEL S. SATORRE, JR., JOSEFA C. REVILLES,
FELIX TIUKINHOY, JR., PERFECTA L. CHUANGCO, and CESAR T. ESPINA,respondents.
SARMIENTO, J.:p
The principal issue raised in this petition for review on certiorari of the decision 1 dated May 30, 1986 of
the Court of Appeals, 2 which modified the decision 3 rendered by the Regional Trial Court of Lapu-Lapu
City in Cebu, is whether or not the private respondents had acquired an easement of right of way, in the
form of a passageway, on the petitioner's property.
It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122 and 5124
of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it had constructed a
resort and hotel. The private respondents, on the other hand, are the owners of adjoining properties
more particularly known as Lots Nos. 5123-A and 5123-C of the Opon Cadastre.
Before the petitioner began the construction of its beach hotel, the private respondents, in going to and
from their respective properties and the provincial road, passed through a passageway which traversed
the petitioner's property. In 1981, the petitioner closed the aforementioned passageway when it began
the construction of its hotel, but nonetheless opened another route across its property through which
the private respondents, as in the past, were allowed to pass. (Later, or sometime in August, 1982, when
it undertook the construction of the second phase of its beach hotel, the petitioner fenced its property
thus closing even the alternative passageway and preventing the private respondents from traversing
any part of it.)
As a direct consequence of these closures, an action for injunction with damages was filed against the
petitioner by the private respondents on September 2, 1982 before the then Court of First Instance of
Cebu. 4 In their complaint, the private respondents assailed the petitioner's closure of the original
passageway which they (private respondents) claimed to be an "ancient road right of way" that had
been existing before World War II and since then had been used by them, the community, and the
general public, either as pedestrians or by means of vehicles, in going to and coming from Lapu-Lapu
City and other parts of the country. The private respondents averred that by closing the alleged road

right of way in question, the petitioner had deprived them access to their properties and caused them
damages.
In the same complainant, the private respondents likewise alleged that the petitioner had constructed a
dike on the beach fronting the latter's property without the necessary permit, obstructing the passage of
the residents and local fishermen, and trapping debris and flotsam on the beach. They also claimed that
the debris and flotsam that had accumulated prevented them from using their properties for the
purpose for which they had acquired them. The complaint this prayed for the trial court to order the reopening of the original passageway across the petitioner's property as well as the destruction of the
dike. 5
In its answer, 6 the petitioner denied the existence of an ancient road through its property and counteraverred, among others, that it and its predecessors-in-interest had permitted the temporary,
intermittent, and gratuitous use of, or passage through, its property by the private respondents and
others by mere tolerance and purely as an act of neighborliness. It justified the walling in of its property
in view of the need to insure the safety and security of its hotel and beach resort, and for the protection
of the privacy and convenience of its hotel patrons and guests. At any rate, the petitioner alleged, the
private respondents were not entirely dependent on the subject passageway as they (private
respondents) had another existing and adequate access to the public road through other properties.
With respect to the dike it allegedly constructed, the petitioner stated that what it built was a
breakwater on the foreshore land fronting its property and not a dike as claimed by the private
respondents. Moreover, contrary to the private respondents' accusation, the said construction had
benefitted the community especially the fishermen who used the same as mooring for their boats during
low tide. The quantity of flotsam and debris which had formed on the private respondents' beach front
on the other hand were but the natural and unavoidable accumulations on beaches by the action of the
tides and movement of the waves of the sea. The petitioner's answer then assailed the private
respondents' complaint for its failure to implead as defendants the owners of the other properties
supposedly traversed by the alleged ancient road right way, indispensable parties without whom no final
adjudication of the controversy could be rendered. 7
After trial, the court a quo rendered a decision on March 15, 1984 finding that the private respondents
had acquired a vested right over the passageway in controversy based on its long existence and its
continued use and enjoyment not only by the private respondents, but also by the community at large.
The petitioner in so closing the said passageway, had accordingly violated the private respondents'
vested right. Thus, the trial court ordered the petitioner:
1. To open and make available the road in question to the plaintiffs and the general public
at all times free of any obstacle thereof, unless the defendant, shall provide another road
equally accessible and convenient as the road or passage closed by the defendant;
2. To pay the plaintiff Katipunan Lumber Company, Inc. the amount of FIVE THOUSAND
PESOS (P5,000.00) a month beginning January, 1983, and the plaintiff Perfecto Guangco
the sum of TWO HUNDRED PESOS (P200.00) a month beginning September, 1982,
representing their respective expenditures they had incurred in other beach resorts after
the road was closed, until the passageway claimed by them is opened and made available
to them, or if the defendant chooses to provide another road, until such road is made
available and conveniently passable to the plaintiffs and the general public; and
3. To pay the sum of FIFTEEN THOUSAND PESOS (P15,000.00) attorney's fees, and to pay
the costs. 8
Both parties elevated the trial court's decision to the Court of Appeals, with the petitioner questioning
the alleged "vested right" of the private respondents over the subject passageway, and the private
respondents assailing the dismissal of their complaint insofar as their prayer for the demolition of the
petitioner's "dike" is concerned.
In its decision, the respondent Appellate Court held as without basis the trial court's finding that the
private respondents had acquired a vested right over the passageway in question by virtue of

prescription. 9 The appellate court pointed out that an easement of right of way is a discontinuous one
which, under Article 622 of the New Civil Code, may only be acquired by virtue of a title and not by
prescription. 10 That notwithstanding, the appellate court went on to rule that ". . . in the interest of
justice and in the exercise by this Court of its equity jurisdiction, there is no reason for Us in not treating
the easement here sought by appellees Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is
not dependent upon the claims of the parties but a compulsory one that is legally demandable by the
owner of the dominant estate from the owner of the servient estate." 11 Thus the appellate court: (1)
granted the private respondents the right to an easement of way on the petitioner's property using the
passageway in question, unless the petitioner should provide another passageway equally accessible
and convenient as the one it closed; (2) remanded the case to the trial court for the determination of the
just and proper indemnity to be paid to the petitioner by the private respondents for the said easement;
and (3) set aside the trial court's award of actual damages and attorney's fees. 12
On petitioner's motion for partial reconsideration, the respondent court issued on October 27, 1987 a
resolution 13denying the said motion. The Appellate Court however in denying the petitioner's motion for
reconsideration stated that:
. . . While it is true that there is another outlet for the plaintiff to the main road, yet such
outlet is a new road constructed in 1979, while the road closed by defendant existed since
over 30 years before. Legally, the old road could be closed; but since the existing outlet is
inconvenient to the plaintiff, equitably the plaintiff should be given a chance to pay for a
more convenient outlet through the land of the defendant at a point least prejudicial to
the latter. In any event, the plaintiff shall pay for all damages that defendant corporation
may sustain and the defendant regulates the manner of use of the right of way to protect
defendant's property and its customers. This is the gist of Our decision. 14
Now before us, the petitioner contends that the decision of the respondent appellate court is grossly
erroneous and not in accord with the provisions of Articles 649 and 650 of the Civil Code on easements
and the prevailing jurisprudence on the matter.
The petition is meritorious.
It is already well-established that an easement of right of way, as is involved here, is
discontinuous 15 and as such can not be acquired by prescription. 16 Insofar therefore as the appellate
court adhered to the foregoing precepts, it stood correct. Unfortunately, after making the correct
pronouncement, the respondent Appellate Court did not order the reversal of the trial court's decision
and the dismissal of the complaint after holding that no easement had been validly constituted over the
petitioner's property. Instead, the Appellate Court went on to commit a reversible error by considering
the passageway in issue as a compulsory easement which the private respondents, as owners of the
"dominant" estate, may demand from the petitioner the latter being the owner of the "servient" estate.
It is provided under Articles 649 and 650 of the New Civil Code that:
Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables pertaining to other persons and
without adequate outlet to a public highway, is entitled to demand a right of way through
the neighboring estates, after payment of the proper indemnity.
Should this easement be established in such a manner that its use may be continuous for
all the needs of the dominant estate, establishing a permanent passage, the indemnity
shall consist of the value of the land occupied and the amount of the damage caused to
the servient estate.
In case the right of way is limited to the necessary passage for the cultivation of the
estate surrounded by others and for the gathering of its crops through the servient estate
without a permanent way, the indemnity shall consist in the payment of the damage
caused by such encumbrance.

This easement is not compulsory if the isolation of the immovable is due to the
proprietor's own acts.
Art. 650. The easement of right of way shall be established at the point least prejudicial to
the servient estate, and, insofar as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest.
Based on the foregoing, the owner of the dominant estate may validly claim a compulsory right of way
only after he has established the existence of four requisites, to wit: (1) the (dominant) estate is
surrounded by other immovables and is without adequate outlet to a public highway; (2) after payment
of the proper indemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of
way claimed is at a point least prejudicial to the servient estate. Additionally, the burden of proving the
existence of the foregoing pre-requisites lies on the owner of the dominant estate. 17
Here, there is absent any showing that the private respondents had established the existence of the four
requisites mandated by law. For one, they failed to prove that there is no adequate outlet from their
respective properties to a public highway. On the contrary, as alleged by the petitioner in its answer to
the complaint, and confirmed by the appellate court, "there is another outlet for the plaintiffs (private
respondents) to the main road." 18 Thus, the respondent Court of Appeals likewise admitted that "legally
the old road could be
closed." 19 Yet, it ordered the re- opening of the old passageway on the ground that "the existing outlet
(the other outlet) is inconvenient to the plaintiff." 20 On this score, it is apparent that the Court of
Appeals lost sight of the fact that the convenience of the dominant estate has never been the gauge for
the grant of compulsory right of way. 21 To be sure, the true standard for the grant of the legal right is
"adequacy." Hence, when there is already an existing adequate outlet from the dominant estate to a
public highway, even if the said outlet, for one reason or another, be inconvenient, the need to open up
another servitude is entirely unjustified. For to justify the imposition of an easement or right of way,
"there must be a real, not a fictitious or artificial necessity for it." 22
Further, the private respondents failed to indicate in their complaint or even to manifest during the trial
of the case that they were willing to indemnify fully the petitioner for the right of way to be established
over its property. Neither have the private respondents been able to show that the isolation of their
property was not due to their personal or their predecessors-in-interest's own acts. Finally, the private
respondents failed to allege, much more introduce any evidence, that the passageway they seek to be
re-opened is at a point least prejudicial to the petitioner. Considering that the petitioner operates a hotel
and beach resort in its property, it must undeniably maintain a strict standard of security within its
premises. Otherwise, the convenience, privacy, and safety of its clients and patrons would be
compromised. That indubitably will doom the petitioner's business. It is therefore of great importance
that the claimed light of way over the petitioner's property be located at a point least prejudicial to its
business.
Hence, the Private respondents' properties can not be said to be isolated, for which a compulsory
easement is demandable. Insofar therefore as the Appellate Court declared the case to be proper as a
controversy for a compulsory right of way, this Court is constrained to hold that it was in error.
Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via of the
Romans. 23They are demanded by necessity, that is, to enable owners of isolated estates to make full
use of their properties, which lack of access to public roads has denied them. 24 Under Article 649 of the
Civil Code, they are compulsory and hence, legally demandable, subject to indemnity and the
concurrence of the other conditions above-referred to.
As also earlier indicated, there must be a real necessity therefor, and not mere convenience for the
dominant estate. Hence, if there is an existing outlet, otherwise adequate, to the highway, the
"dominant" estate can not demand a right of way, although the same may not be convenient. Of course,
the question of when a particular passage may be said to be "adequate" depends on the circumstances
of each case. Manresa, however, says: "In truth, not only the estate which absolutely does not possess it
should be considered in this condition, but also that which does not have one sufficiently safe or
serviceable; an estate bordering a public road through an inaccessible slope or precipice, is in fact

isolated for all the effects of the easement requested by its owner. On the other hand, an estate which
for any reason has necessarily lost its access to a public road during certain periods of the year is in the
same condition. . . . There are some who propound the query as to whether the fact that a river flows
between the estate and the public road should be considered as having the effect of isolating the estate.
. . . If the river may be crossed conveniently at all times without the least danger, it cannot be said that
the estate is isolated; in any other case, the answer is in the affirmative." 25
The isolation of the dominant estate is also dependent on the particular need of the dominant owner,
and the estate itself need not be totally landlocked. What is important to consider is whether or not a
right of way is necessary to fill a reasonable need therefor by the owner. 26 Thus, as Manresa had
pointed out, if the passageway consists of an "inaccessible slope or precipice," 27 it is as if there is no
passageway, that is, one that can sufficiently fulfill the dominant owner's necessities, although by the
existence of that passageway the property can not be truly said that the property is isolated. So also,
while an existing right of way may have proved adequate at the start, the dominant owner's need may
have changed since then, for which Article 651 of the Code allows adjustments as to width. 28
But while a right of way is legally demandable, the owner of the dominant estate is not at liberty to
impose one based on arbitrary choice. Under Article 650 of the Code, it shall be established upon two
criteria: (1) at the point least prejudicial to the servient state; and (2) where the distance to a public
highway may be the shortest. According, however, to one commentator, "least prejudice" prevails over
"shortest distance." 29 Yet, each case must be weighed according to its individual merits, and judged
according to the sound discretion of the court. "The court," says Tolentino, "is not bound to establish
what is the shortest; a longer way may be established to avoid injury to the servient tenement, such as
when there are constuctions or walls which can be avoided by a roundabout way, or to secure the
interest of the dominant owner, such as when the shortest distance would place the way on a dangerous
decline." 30
It is based on these settled principles that we have resolved this case.
WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987, of the
respondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby
DISMISSED. Costs against the private respondents.
SO ORDERED.
5. JUAN GARGANTOS, petitioner, vs.TAN YANON and THE COURT OF APPEALS, respondents.
GUTIERREZ DAVID, J.:
Juan Gargantos appeals by certiorari from the decision of the Court of Appeals reversing the judgment of
the Court of First Instance of Romblon.
The record discloses that the late Francisco Sanz was the former owner of a parcel of land containing
888 square meters, with the buildings and improvements thereon, situated in the poblacion of Romblon.
He subdivided the lot into three and then sold each portion to different persons. One portion was
purchased by Guillermo Tengtio who subsequently sold it to Vicente Uy Veza. Another portion, with the
house of strong materials thereon, was sold in 1927 to Tan Yanon, respondent herein. This house has on
its northeastern side, doors and windows over-looking the third portion, which, together with
the camarin and small building thereon, after passing through several hands, was finally acquired by
Juan Gargantos, petitioner herein.
On April 23, 1955, Gargantos applied to the Municipal Mayor for a permit to demolish the roofing of the
old camarin. The permit having been granted, Gargantos tore down the roof of the camarin. On May 11,
1955, Gargantos asked the Municipal Council of Romblon for another permit, this time in order to
construct a combined residential house and warehouse on his lot. Tan Yanon opposed approval of this
application.

Because both the provincial fiscal and district engineer of Romblon recommended granting of the
building permit to Gargantos, Tan Yanon filed against Gargantos an action to restrain him from
constructing a building that would prevent plaintiff from receiving light and enjoying the view trough the
window of his house, unless such building is erected at a distance of not less than three meters from the
boundary line between the lots of plaintiff and defendant, and to enjoin the members of Municipal
Council of Romblon from issuing the corresponding building permit to defendant. The case as against the
members of the Municipal Council was subsequently dismissed with concurrence of plaintiff's council.
After trial, the Court of First Instance of Romblon rendered judgment dismissing the complaint and
ordering plaintiff to pay defendant the sum of P12,500.00 by way of compensatory, exemplary, moral
and moderate damages.
On appeal, the Court of Appeals set aside the decision of the Court of First Instance of Romblon and
enjoined defendant from constructing his building unless "he erects the same at a distance of not less
than three meters from the boundary line of his property, in conformity with Article 673 of the New Civil
Code."
So Juan Gargantos filed this petition for review of the appellate Court's decision. The focal issue herein is
whether the property of respondent Tan Yanon has an easement of light and view against the property of
petitioner Gargantos.
The kernel of petitioner's argument is that respondent never acquired any easement either by title or by
prescription. Assuredly, there is no deed establishing an easement. Likewise, neither petitioner nor his
predecessors-in-interest have ever executed any deed whereby they recognized the existence of the
easement, nor has there been final judgment to that effect. Invoking our decision in Cortes vs. Yu-Tibo (2
Phil., 24), petitioner maintains that respondent has not acquired an easement by prescription because
he has never formally forbidden petitioner from performing any act which would be lawful without the
easement, hence the prescriptive period never started.
It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and the doctrine in the Yu-Tibo
case are not applicable herein because the two estates, that now owned by petitioner, and that owner
by respondent, were formerly owned by just one person, Francisco Sanz. It was Sanz who introduced
improvements on both properties. On that portion presently belonging to respondent, he constructed a
house in such a way that the northeastern side thereof extends to the wall of the camarin on the portion
now belonging to petitioner. On said northeastern side of the house, there are windows and doors which
serve as passages for light and view. These windows and doors were in existence when respondent
purchased the house and lot from Sanz. The deed sale did not provide that the easement of light and
view would not be established. This then is precisely the case covered by Article 541, O.C.C (now Article
624, N.C.C) which provides that the existence of an apparent sign of easement between two estates,
established by the proprietor of both, shall be considered, if one of them is alienated, as a title so that
the easement will continue actively and passively, unless at the time the ownership of the two estate is
divided, the contrary is stated in the deed of alienation of either of them, or the sign is made to
disappear before the instrument is executed. The existence of the doors and windows on the
northeastern side of the aforementioned house, is equivalent to a title, for the visible and permanent
sign of an easement is the title that characterizes its existence (Amor vs. Florentino, 74 Phil., 403). It
should be noted, however, that while the law declares that the easement is to "continue" the easement
actually arises for the first time only upon alienation of either estate, inasmuch as before that time there
is no easement to speak of, there being but one owner of both estates (Articles 530, O.C.C., now Articles
613, N.C.C).
We find that respondent Tan Yanon's property has an easement of light and view against petitioner's
property. By reason of his easement petitioner cannot construct on his land any building unless he
erects it at a distance of not less than three meters from the boundary line separating the two estates.
Wherefore, the appealed decision is hereby affirmed with costs against petitioner.
6. EDUARDO C. TAEDO, petitioner, vs.
HON. JUANITO A. BERNAD, Presiding Judge of the Regional Trial Court, 7th Judicial

Region, Branch XXI, Cebu City; Spouses ROMEO SIM and PACITA S. SIM; and Spouses
ANTONIO CARDENAS and MAE LINDA CARDENAS, respondents.
PADILLA, J.:
This is a petition for review on certiorari of the Order issued by the respondent judge, Hon. Juanita A.
Bernad on 5 December 1983, which dismissed the complaint for legal redemption filed by the petitioner
in Civil Case No. CEB-994 of the Regional Trial Court of Cebu, and the Order of the same respondent
judge, dated 20 January 1984, which denied petitioner's motion for reconsideration.
The facts, in brief, are as follows:
The private respondent Antonio Cardenas was the owner of two (2) contiguous parcels of land situated
in Cebu City which he had inherited from Lourdes Cardenas and more particularly known as Lot 7501-A,
with an area of 140 square meters and Lot 7501-B, with an area of 612 square meters. On Lot 7501-A is
constructed an apartment building, while the improvements on Lot 7501-B consist of one four-door
apartment of concrete and strong materials; one two-storey house of strong materials; a bodega of
strong materials; and a septic tank for the common use of the occupants of Lots 7501-A and 7501-B. A
small portion of the apartment building on Lot 7501-A also stands on Lot 7501-B.
On 5 February 1982, said Antonio Cardenas sold Lot 7501-A to herein petitioner Eduardo C. Taedo.

Antonio Cardenas, on that same day, also mortgaged Lot 7501-B to said Eduardo C. Taedo as a security
for the payment of a loan in the amount of P10,000.00. 2
Antonio Cardenas further agreed that he would sell Lot 7501-B only to Eduardo Taedo in case he should
decide to sell it, as the septic tank in Lot 7501-B services Lot 7501-A and the apartment building on Lot
7501-A has a part standing on Lot 7501-B. This was confirmed in a letter, dated 26 February 1982,
wherein Antonio Cardenas asked Taedo not to deduct the mortgage loan of P10,000.00 from the
purchase price of Lot 7501-A "because as we have previously agreed, I will sell to you Lot 7501-B." 3
Antonio Cardenas, however, sold Lot 7501-B to the herein respondent spouses Romeo and Pacita
Sim. 4 Upon learning of the sale, Eduardo Taedo offered to redeem the property from Romeo Sim. But
the latter refused. Instead, Romeo Sim blocked the sewage pipe connecting the building of Eduardo
Taedo built on Lot 7501-A, to the septic tank in Lot 7501-B. He also asked Taedo to remove that
portion of his building enroaching on Lot 7501-B. As a result, Eduardo Taedo, invoking the provisions of
Art. 1622 of the Civil Code, filed an action for legal redemption and damages, with a prayer for the
issuance of a writ of preliminary injunction, before the Regional Trial Court of Cebu, docketed therein as
Civil Case No. CEB-994, against the spouses Romeo and Pacita Sim, Antonio Cardenas and his wife Mae
Linda Cardenas, the Register of Deeds of Cebu City, and Banco Cebuano, Cebu City Development
Bank. 5
Answering, the spouses Romeo and Pacita Sim claimed that they are the absolute owners of Lot 7501-B
and that Eduardo Taedo has no right to redeem the land under Art. 1622 of the Civil Code as the land
sought to be redeemed is much bigger than the land owned by Taedo. 6
Antonio Cardenas, upon the other hand, admitted that he had agreed to sell Lot 7501-B to Eduardo
Taedo and claimed by way of cross-claim against the spouses Romeo and Pacita Sim that the Deed of
Sale he had executed in favor of said spouses was only intended as an equitable mortgage, to secure
the payment of amounts received by him from said spouses as petty loans . 7
In answer to the cross-claim, the spouses Romeo and Pacita Sim insisted that the sale executed by
Antonio Cardenas of Lot 7501-B in their favor was an absolute one. 8
Thereafter, or on 14 October 1983, the spouses Romeo and Pacita Sim filed motions to dismiss the
complaint and the cross-claim, for lack of cause of action. 9

Acting upon these motions and other incidental motions, the respondent judge issued the questioned
order of 5 December 1983 dismissing the complaint and cross-claim. 10
Taedo filed a motion for reconsideration of the order, but his motion was denied on 20 January 1984.

11

Hence, the present recourse by petitioner Tanedo.

The Court finds merit in the petition. The dismissal of the complaint on the ground of lack of cause of
action, is precipitate. The settled rule where dismissal of an action is sought on the ground that the
complaint does not state a cause of action is, that the insufficiency of the cause of action must appear
on the face of the complaint. And the test of the sufficiency of the ultimate facts alleged in the
complaint to constitute a cause of action, is whether or not, admitting the facts alleged, the court can
render a valid judgment upon the same in accordance with the prayer of the complaint. For this purpose,
the movant is deemed to admit hypothetically the truth of the facts thus averred. 12
In the instant case, it cannot be denied that petitioner Tanedo cannot redeem the entire Lot 7501-B from
the spouses Romeo and Pacita Sim pursuant to the provisions of Art. 1622 Romeo and Pacita Sim
pursuant to the provisions of Art. 1622 of the Civil Code, since the lot sought to be redeemed, has an
area of 612 square meters which is much bigger, area-wise, than the lot owned by petitioner Taedo.
However, the petitioner seeks to purchase only that small portion of Lot 7501-B occupied by his
apartment building, because the spouses Romeo and Pacita Sim had told him to remove that portion of
his building which enroaches upon Lot 7501-B. Whether or not this is possible should have been
determined at the pre-trial stage or trial on the merits.
Besides, the action of petitioner Taedo is also one for recovery of damages by reason of breach of
promise by the respondent Antonio Cardenas to sell Lot 7501-B. Paragraphs 3 and 4 of the amended
complaint read, as follows:
3. That by written agreement, plaintiff and defendant spouses Antonio Cardenas and Mae
Linda Cardenas agreed that in the event they decide to sell the adjacent Lot No. 7501-B of
the subdivision plan (LRC) Psd. 23638, a portion of Lot No. 7501 of the cadastral survey of
Cebu, LRC (GLRC) Cad. Record No. 9465, situated in the City of Cebu, containing an area
of SIX HUNDRED TWELVE (612) Square meters more or less which lot is adjacent to Lot No.
7501-A of the plaintiff and where part of the plaintiffs apartment is standing on, the same
should be sold to the plaintiff, but far from compliance of the written agreement,
defendant spouses Antonio Cardenas and Mae Linda Cardenas sureptiously[sic] sold the
aforestated Lot No. -7501-B- to the defendant spouses, Romeo Sim and Pacita Sim on July
23, 1982 as per Deed of Sale notarized by Notary Public, Jorge S. Omega and entered in
his Notarial Register as Doc. No. 462; Page No. -94- Book No. 11, Series of 1982;
4. That due to the sale by the defendant spouses Antonio Cardenas and Mae Linda
Cardenas of the property in question to spouses Romeo Sim and Pacita Lim, plaintiff
suffered moral damages in the form of mental anguish, sleepless nights, mental torture,
for which he is entitled to a compensation in the amount to be established during the trial
of the case and has incurred litigation expenses subject for reimbursentent and attorneys
fee in the sum of P10,000.00 which should be chargeable to both defendant spouses; 13
and the plaintiff (herein petitioner) prayed, among others: "(c) That defendant spouses Romeo Sim and
Pacita Sim and spouses Antonio Cardenas and Mae Linda Cardenas be ordered to pay plaintiff moral
damages, litigation expenses and attorneys fees in the amount of P50,000.00." 14
That there was a written agreement, as alleged in the complaint, between the plaintiff Eduardo Taedo
and the defendant Antonio Cardenas is admitted by the latter. In his answer, he alleged the following:
ALLEGATIONS as to written agreement is ADMITTED, but, specifically denies that herein
defendants SUREPTIOUSLY [sic] SOLD the lot in question to the other defendant Spouses
Sim the truth is, that the herein defendants [sic] was required to execute the Deed of Sale
described in this paragraph 3 as security for the personal loans and other forms of

indebtedness incurred from the Spouses Sims but never as a conveyance to transfer
ownership; 15
Considering this admission of defendant Cardenas, and that his promise to sell Lot 7501-B to Eduardo
Taedo appears to be for a valuable consideration, a trial is necessary to determine, at the very least,
the amount of damages suffered by the plaintiff Eduardo Tafiedo by reason of such breach of promise to
sell, if indeed there is such a breach.
Moreover, the finding of the trial court that petitioner Taedo's right to continue to use the septic tank,
erected on Lot 7501-B, ceased upon the subdivision of the land and its subsequent sale to different
owners who do not have the same interest, 16 also appears to be contrary to law. Article 631 of the Civil
Code enumerates the grounds for the extinguishment of an easement. Said article provides:
Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the dominant and servient estates;
(2) By non-user for ten years; with respect to discontinuous easements, this period shall
be computed from the day on which they ceased to be used; and, with respect to
continuous easements, from the day on which an act contrary to the same took place;
(3) When either or both of the estates fall into such condition that the easement cannot
be used; but it shall revive if the subsequent condition of the estates or either of them
should again permit its use, unless when the use becomes possible, sufficient time for
prescription has elapsed, in accordance with the provisions of the preceding number;
(4) By the expiration of the term or the fulfillment of the conditions, if the easement is
temporary or conditional;
(5) By the renunciation of the owner of the dominant estate;
(6) By the redemption agreed upon between the owners of the dominant and servient
estates.
As can be seen from the above provisions, the alienation of the dominant and servient estates to
different persons is not one of the grounds for the extinguishment of an easement. On the contrary, use
of the easement is continued by operation of law. Article 624 of the Civil Code provides:
Art. 624. The existence of an apparent sign of easement between two estates, established
or maintained by the owner of both, shall be considered, should either of them be
alienated, as a title in order that the easement may continue actively and passively,
unless, at the time the ownership of the two estates is divided, the contrary should be
provided in the title of conveyance of either of them, or the sign aforesaid should be
removed before the execution of the deed. This provision shall also apply in case of the
division of a thing owned in common by two or more persons.
In the instant case, no statement abolishing or extinguishing the easement of drainage was mentioned
in the deed of sale of Lot 7501-A to Eduardo Taedo. Nor did Antonio Cardenas stop the use of the drain
pipe and septic tank by the occupants of Lot 7501-A before he sold said lot to Eduardo Tafiedo. Hence,
the use of the septic tank is continued by operation of law. Accordingly, the spouses Romeo and Pacita
Sim the new owners of the servient estate (Lot 7501- B), cannot impair, in any manner whatsoever, the
use of the servitude. 17
WHEREFORE, the Orders complained of are hereby REVERSED and SET ASIDE. The respondent judge or
another one designated in his place is directed to proceed with the trial of this case on the merits. With
costs against private respondents.

SO ORDERED.
7. G.R. No. 77628 March 11, 1991
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.
FERNAN, C.J.:p
Presented for resolution in the instant petition for review is the not-so-usual question of whether or not
petitioner is entitled to a widening of an already existing easement 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. 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.
8. REMIGIO O. RAMOS, SR., petitioner, vs. GATCHALIAN REALTY, INC., EDUARDO ASPREC,
and COURT OF APPEALS, respondents.
GUTIERREZ, JR., J.:
In this petition for review on certiorari, the petitioner assails the decision of the Court of Appeals dated
August 29, 1986 which affirmed the November 14, 1984 order of the Regional Trial Court, Branch CXI at
Pasay City dismissing the petitioner's civil action for a right of way with prayer for preliminary injunction.
Petitioner Ramos is the owner of a house and lot containing an area of 901 square meters covered by
Transfer Certificate of Title No. 14927 situated at Barrio San Dionisio, Paraaque, Metro Manila. The lot
was acquired by the petitioner from Science Rodriguez Lombos Subdivision In the subdivision survey
plan of Lot 4133-G, (LRC) PSD-172544, the lot is more particularly described as Lot 4133-G-11 (Exhibits
"1" and "1-A "). Two road lots abut petitioner's property namely lot 4133-G-12 with an area of 2,160
square meters clearly appearing as a proposed road in the Lombos subdivision plan and Lot 4135 of the
Paraaque Cadastre now known as Pambansa Road but more commonly referred to as Gatchalian
Avenue.
Respondents Asprec own Lot 4135. Gatchalian Avenue is alongside Lot 4135. Respondent Gatchalian
Realty was granted the road right of way and drainage along Lot 4135 to service the Gatchalian and
Asprec subdivision, by the respondent Asprecs.

The records of this case disclose that on April 30, 1981, a complaint for an easement of a right of way
with preliminary mandatory injunction was filed by Ramos against the private respondents. Among the
allegations in the complaint are:
... that he (referring to the petitioner) constructed his house at 27 Gatchalian Avenue (also
known as Pambansa Road), Paranaque, and has since resided therein with his family from
1977 up to the present; that during construction of the house, Gatchalian Realty, Inc. built
a 7-8, feet high concrete wall right infront of appellant's premises, blocking his
entrance/exit to Gatchalian Road, the nearest, most convenient and adequate
entrance/exit to the public road. or highway, formerly Sucat Road but now known as Dr. A.
Santos Avenue, Paraaque; that this house and lot is only about 100 meters from Sucat,
Road passing thru Gatchalian Avenue; that prior to this, appellant and his counsel
addressed separate request/demand letters (Exh. A and Annex B) to defendant company
to allow him to exercise a right of way on the subject premises; that in September 1977, a
meeting/conference was held between appellant and his counsel on one hand and Mr.
Roberto Gatchalian and counsel on the other, during which defendant Corporation
manifested its conformity to grant appellant the requested right of way upon payment of
proper indemnity, with the request that appellant inform defendants Asprec of their
aforesaid agreement; that consequently, appellant wrote Mr. Cleto Asprec on September
16, 1977 (Exh. D); that with the construction of the 7-8 feet concrete wall appellant and
his family have been constrained to pass through the back portion of their lot bounded by
other lots belonging to different owners, which is grassy and cogonal as temporary
ingress/egress with great inconvenience and hardship, and this becomes all the more
pronounced during the rainy season due to flood and mud (Exhs. B-1, B-1-A, B-2; B-2-A, B3, B-3-A, B-3-B and B-4); and, lastly, that the aforesaid concrete wall is dangerously
leaning towards appellant's premises posing great danger or hazard. (Court of Appeals
Decision, p. 3, Rollo, p. 39)
On May 20, 1981, the respondent corporation filed a motion to dismiss on grounds of lack of cause of
action and bar by prior judgment alleging that the complaint was merely a reproduction of that filed on
October 26, 1972 in Civil Case No. 5930-P which was dismissed on October 30, 1980 for failure to
prosecute within a reasonable length of time. Respondents Asprec later joined the respondent company
in its motion to dismiss and adopted the grounds and arguments stated therein.
On November 20, 1981, after the petitioner had filed his opposition to the above motions, the lower
court issued its order denying the motion to dismiss on the ground that the order dismissing the earlier
case was not an adjudication on the merits.
On November 26, 1981, the petitioner filed an urgent exparte motion for the issuance of a preliminary
mandatory injunction as well as a preliminary prohibitory injunction. On the same day, the lower court
set the motion for hearing on December 1, 1981, later reset to December 10, 1981, and ordered that:
In the meantime, pending determination of the application on the merits and in order that
the reliefs sought therein may not be rendered moot and academic, the defendants and
all persons acting upon their orders are hereby temporarily enjoined from building,
constructing and/or erecting a wall, fence or any enclosure adjoining or abutting plaintiff's
premises and/or from restraining, preventing or prohibiting the plaintiff, his family or
persons residing in his premises as well as any person/s who may have any dealing or
business with them from using, passing and/or traversing the said Gatchalian Avenue in
going to or returning from the plaintiff's premises and in going to or returning from Sucat
Road via Gatchalian Avenue, until further orders from this Court. (Order dated November
26,1981, Records, p. 66).
On December 1, 1981, Gatchalian Realty filed its answer and averred, among others, that:
xxx xxx xxx

Defendant Corporation has never entered into a verbal agreement with plaintiff to grant
the latter a road right of way;
xxx xxx xxx
The so-called Gatchalian Avenue or Palanyag Road is not a public road but a private street
established and constructed by the defendant Corporation intended for the sole and
exclusive use of its residents and lot buyers of its subdivisions, as well as of the
subdivisions owned and operated by the various naked owners of the different portions
constituting the entire length and breadth of said street;
If plaintiff's property referred to in the complaint is Lot No. 4133-G-11, (LRC) Psd-229001
(sic), then a grant of a right of way to plaintiff is not a legal necessity, because such lot
has an eating road right of way, more particularly Lot 4133-G-12, towards Dr. Arcadio
Santos Avenue(Sukat Road);
xxx xxx xxx
The opening of Gatchalian Avenue to the property of plaintiff will unduly cause great
prejudice to defendant Corporation as it can no longer effectively regulate the use of the
said private road; ...
Assuming, though not admitting, that plaintiff may be granted a right of way, still the
reasonable compensation for such grant would be some P800,000.00, as such portion of
Gatchalian Avenue consists of some 2,000 square meters of prime and valuable property
which could readily command a market value of P400.00 per square meter; moreover,
plaintiff still has to shoulder his proportionate share of the expenses and upkeep of such
street and the real estate taxes imposed thereon. (Answer of Gatchalian Realty, Inc.,
Records, pp. 81-82).
On December 2, 1981, respondent Asprec filed their answer which basically contained the same
averments as that of the realty company.
At the hearing of the petitioner's application for issuance of a writ of preliminary injunction to compel
the private respondents to remove the wall constructed right in front of the petitioner's premises barring
him access to Gatchalian Avenue, both parties presented oral and documentary evidence to support
their respective positions. After the hearing, the lower court issued the following order:
Plaintiff is given fifteen (15) days to file a memorandum and the defendant is given
another fifteen days from receipt thereof to file a reply, after which the case shall be
deemed submitted for resolution. So ordered. (TSN, December 10, 1981, p. 57)
After compliance by both parties with the above order, the lower court, on July 9, 1982, rendered a
decision the dispositive part of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants ordering the latter to grant the former a right of way through Palanyag Road to
and from Don Arcadio Santos Avenue and to and from his residence, upon payment by the
plaintiff to the defendants Asprecs the sum of P5,000 as indemnity therefor and under the
following terms and conditions to wit: (1) the easement created shall be only in favor of
the plaintiff, members of his family and person or persons dealing with them; and (2) the
opening to be created through the concrete wall separating plaintiff's residence and
Palanyag Road shall only be three (3) meters wide and shall be provided by an iron gate
by the plaintiff all at the expense of the plaintiff. Without pronouncement as to costs and
damages. (Rollo, p. 30)

Thereafter, the respondent company filed a motion to set aside and/or reconsider the lower court's
decision for being premature since only the application for the writ of injunction was heard and
submitted for resolution and not the entire case. Respondents Asprec, likewise, filed a motion for
reconsideration mainly on the ground that the lower court's grant of a right of way through Gatchalian
Avenue in petitioner's favor would be in derogation of the "Contract of Easement of Road Right-of-Way
and of Drainage" executed between them and Gatchalian Realty.
In his opposition to both motions, the petitioner argued that on the basis of the transcript of steno
graphic notes taken on December 10, 1981, it was clear that both parties submitted the entire case for
resolution inasmuch as the pieces of evidence for the injunction and for the main case were the same
and there was nothing left to be presented. Thus, in effect, the petitioner contended that the lower
court's decision dated July 9, 1982 was an adjudication on the merits.
On July 8, 1983, the lower court under a new judge by virtue of the reorganization of the judiciary,
issued an order setting aside and vacating its previous decision dated July 9, 1982 on the ground that
the same was "rendered prematurely as the defendants had not presented their evidence on the main
evidence."
After the petitioner had rested his case, the respondent company filed a motion to dismiss based on the
insufficiency of the evidence adduced by the petitioner. An opposition to said motion, was, thereafter,
filed by the petitioner.
On November 14, 1984, the lower court, acting on the respondent company's motion to dismiss, issued
an order with the following tenor:
WHEREFORE, finding the motion to dismiss of defendant corporation Gatchalian Realty,
Inc. to be impressed with merit, the same is hereby granted. For insufficiency of evidence,
plaintiff's complaint is hereby dismissed, without pronouncement as to costs. (Rollo, p. 34)
The Court of Appeals on August 29, 1986, found that the petitioner failed to establish the existence of
the pre-conditions in order that he could legally be entitled to an easement of a right of way. It affirmed
the lower court's order dated November 14, 1984 in all respects, with costs against the petitioner.
Hence, this petition which presents the following assignment of errors:
I
PUBLIC RESPONDENT ERRED IN AFFIRMING I-IV TOTO THE ORDER OF DISMISSAL OF THE TRIAL COURT IN
ALL RESPECTS WITH COSTS AGAINST THE PETITIONER.
II
PUBLIC RESPONDENT ERRED IN ITS DECISION TO THE EFFECT THAT PETITIONER HAS NOT SUFFICIENTLY
MET THE REQUIREMENTS OF THE LAW AND IN FAILING TO PROVE HIS RIGHT OF WAY THROUGH
GATCHALIAN AVENUE OR PALANYAG ROAD AGAINST THE RESPONDENTS HEREIN;
III
PUBLIC RESPONDENT ERRED IN FAILING TO SET ASIDE THE ORDER OF THE TRIAL COURT, AND NOT
ADOPTING THE DECISION OF THE TRIAL COURT DATED JULY 9,1982 GRANTING TO PETITIONER A RIGHT
OF WAY IN THE SUBJECT PREMISES. (Rollo, pp. 14-15)
These assigned errors center on the issue of whether or not the petitioner has successfully shown that
all the requisites necessary for the grant of an easement of a right of way in his favor are present.
An easement or servitude in an encumbrance imposed upon an immovable for the benefit of another
immovable belonging to a different owner as defined in Article 613 of the Civil Code. It is established

either by law, in which case it is called legal or by the will of the parties, in which event it is a voluntary
easement. (See Article 619, Civil Code of the Philippines; City of Manila vs. Entote, 57 SCRA 497, 503).
Since there is no agreement between the contending parties in this case granting a right of way by one
in favor of the other, the establishment of a voluntary easement between the petitioner and the
respondent company and/or the other private respondents is ruled out. What is left to examine is
whether or not the petitioner is entitled to a legal or compulsory easement of a right of way.
In the case of Bacolod-Murcia Milling Company, Inc. vs. Capitol Subdivision Inc., et al. (17 SCRA 731,
735-6), we held that:
... the Central had to rely strictly on its being entitled to a compulsory servitude of right of
way, under the Civil Code, and it could not claim any such servitude without first
establishing the pre-conditions for its grant fixed by Articles 649 and 650 of the Civil Code
of the Philippines:
(1) That it is surrounded by other immovables and has no adequate outlet
to a public highway (Art. 649, par. 1);
(2) After payment of proper indemnity (Art. 649, p. 1. end);
(3) That the isolation was not due to the Central's own acts (Art. 649, last
par.); and
(4) That the right of way claimed is "at the point least prejudicial to the
servient estate; and insofar as consistent with this rule, where the distance
from the dominant estate to a public highway may be the shortest." (Art.
650).
By express provision of law, therefore, a compulsory right of way can not be obtained
unless the four requisites enumerated are first shown to exist, and the burden of proof to
show their existence was on the Central. (See also Angela Estate, Inc. vs. Court of First
Instance of Negros Occidental 24 SCRA 500, 510)
On the first requisite, the petitioner contends that since the respondent company constructed the
concrete wall blocking his ingress and egress via the Gatchalian Avenue, the "nearest, most convenient
and adequate road" to and from a public highway, he has been constrained to use as his "temporary"
way the adjoining lots belonging to different persons. Said way is allegedly "bumpy and impassable
especially during rainy seasons because of flood waters, mud and tall 'talahib' grasses thereon."
Moreover, according to the petitioner, the road right of way which the private respondents referred to as
the petitioner's alternative way to Sucat Road is not an existing road but has remained a proposed road
as indicated in the subdivision plan of the Sobrina Rodriguez Lombos Subdivision.
The petitioner's position is not impressed with merit. We find no reason to disturb the appellate court's
finding of fact that the petitioner failed to prove the non-existence of an adequate outlet to the Sucat
Road except through the Gatchalian Avenue. As borne out by the records of the case, there is a road
right of way provided by the Sabrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in its
subdivision plan for the buyers of its lots. The fact that said lot is still undeveloped and causes
inconvenience to the petitioner when he uses it to reach the public highway does not bring him within
the ambit of the legal requisite. We agree with the appellate court's observation that the petitioner
should have, first and foremost, demanded from the Sabrina Rodriguez Lombos Subdivision the
improvement and maintenance of Lot 4133-G-12 as his road right of way because it was from said
subdivision that he acquired his lot and not either from the Gatchalian Realty or the respondents Asprec.
To allow the petitioner access to Sucat Road through Gatchalian Avenue inspite of a road right of way
provided by the petitioner's subdivision for its buyers simply because Gatchalian Avenue allows
petitioner a much greater ease in going to and coming from the main thoroughfare is to completely
ignore what jurisprudence has consistently maintained through the years regarding an easement of a
right of way, that "mere convenience for the dominant estate is not enough to serve as its basis. To

justify the imposition of this servitude, there must be a real, not a fictitious or artificial, necessity for it."
(See Tolentino, Civil Code of the Philippines, Vol. II, 2nd ed., 1972, p. 371)
Considering that the petitioner has failed to prove the existence of the first requisite as aforestated, we
find it unnecessary to discuss the rest of the preconditions for a legal or compulsory right of way.
Once again, we apply the rule that findings of facts of the Court of Appeals are binding on the Supreme
Court and who not be overturned when supported by the evidence on record save in the known
exceptions such as gross misappreciation of the evidence or misapprehension of facts. (See Community
Savings and Loan Association, Inc. vs. Court of Appeals, et al., G.R. No. 75786 promulgated on August
31, 1987; Regalario vs. Northwest Finance Corporation, 117 SCRA 45; Agton vs. Court of Appeals, 113
SCRA 322).
WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED for lack of merit. The questioned
decision of the Court of Appeals is AFFIRMED.
SO ORDERED.
9. ANASTACIA QUIMEN, petitioner, vs. COURT OF APPEALS and YOLANDA Q.
OLIVEROS, respondents.
BELLOSILLO, J.:p
IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will cause least prejudice
shall be chosen. However, if the two circumstances do not concur in a single tenement, the way where
damage will be least shall be used even if not the shortest route. 1 This is so because least prejudice
prevails overshortest distance. This means that the court is not bound to establish what is the shortest
distance; a longer way may be adopted to avoid injury to the servient estate, such as when there are
constructions or walls which can be avoided by a round about way, or to secure the interest of the
dominant owner, such as when the shortest distance would place the way on a dangerous decline.
Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together with her brothers
Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of property situated in Pandi, Bulacan. They
agreed to subdivide the property equally among themselves, as they did, with the shares of Anastacia,
Sotero, Sulpicio and Rufina abutting the municipal road.
The share of Anastacia, located at the extreme left, was designated as Lot No. 1448-B-1. It is bounded
on the right by the property of Sotero designated as Lot. No. 14413-B-2. Adjoining Sotero's property on
the right are Lots Nos. 1448-B-3 and 1448-B-4 originally owned by Rufina and Sulpicio, respectively, but
which were later acquired by a certain Catalina Santos. Located directly behind the lots of Anastacia and
Sotero is the share of their brother Antonio designated as Lot No. 1448-B-C which the latter divided into
two (2) equal parts, now Lots Nos. 1448-B-6-A and 1448-B-6-B, each with an area of 92 square meters.
Lot No. 1448-B-6-A is located behind Anastacia's Lot No. 1448-B-1, while Lot No. 1448-B-6-B is behind
the property of Sotero, father of respondent Yolanda.
In February 1982 Yolanda purchased Lot No. 1448-B-6-A from her uncle Antonio through her aunt
Anastacia who was then acting as his administratrix. According to Yolanda, when petitioner offered her
the property for sale she was hesitant to buy as it had no access to a public road. But Anastacia
prevailed upon her to buy the lot with the assurance that she would give her a right of way on her
adjoining property for P200.00 per square meter.
Thereafter, Yolanda constructed a house on the lot she bought using as her passageway to the public
highway a portion of Anastacia's property. But when Yolanda finally offered to pay for the use of the
pathway Anastacia refused to accept the payment. In fact she was thereafter barred by Anastacia from
passing through her property. 2

In February 1986 Yolanda purchased the other lot of Antonio Quimen, Lot No. 1448-B-6-B, located
directly behind the property of her parents who provided her a pathway gratis et amore between their
house, extending about nineteen (19) meters from the lot of Yolanda behind the sari sari store of Sotero,
and Anastacia's perimeter fence. The store is made of strong materials and occupies the entire frontage
of the lot measuring four (4) meters wide and nine meters (9) long. Although the pathway leads to the
municipal road it is not adequate for ingress and egress. The municipal road cannot be reached with
facility because the store itself obstructs the path so that one has to pass through the back entrance
and the facade of the store to reach the road.
On 29 December 1987 Yolanda filed an action with the proper court praying for a right of way through
Anastacia's property. An ocular inspection upon instruction of the presiding judge was conducted by the
branch clerk of court. The report was that the proposed right of way was at the extreme right of
Anastacia's property facing the public highway, starting from the back of Sotero's sari-sari store and
extending inward by one (1) meter to her property and turning left for about five (5) meters to avoid the
store of Sotero in order to reach the municipal road 3 and the way was unobstructed except for an
avocado tree standing in the middle. 4
But on 5 September 1991 the trial court dismissed the complaint for lack of cause of action; explaining
that the right of way through Sotero's property was a straight path and to allow a detour by cutting
through Anastacia's property would no longer make the path straight. Hence the trial court concluded
that it was more practical to extend the existing pathway to the public road by removing that portion of
the store blocking the path as that was the shortest route to the public road and the least prejudicial to
the parties concerned than passing through Anastacia's property.5
On appeal by respondent Yolanda, the Court of Appeals reversed the lower court and held that she was
entitled to a right of way on petitioner's property and that the way proposed by Yolanda would cause the
least damage and detriment to the servient estate. 6 The appellate court however did not award
damages to private respondent as petitioner did not act in bad faith in resisting the claim.
Petitioner now comes to us imputing ERROR to respondent Court of Appeals: (a) in disregarding the
agreement of the parties; (b) in considering petitioner's property as a servient estate despite the fact
that it does not abut or adjoin the property of private respondent; and, (c) in holding that the one-meter
by five-meter passage way proposed by private respondent is the least prejudicial and the shortest
distance to the public road.
Incidentally, petitioner denies having promised private respondent a right of way. She claims that her
agreement with private respondent was to provide the latter with a right of way on the other lot of
Antonio Quimen under her administration when it was not yet sold to private respondent. Petitioner
insists that passing through the property of Yolanda's parents is more accessible to the public road than
to make a detour to her property and cut down the avocado tree standing thereon.
Petitioner further argues that when Yolanda purchased Lot No.
1448-B-6-B in 1986 the easement of right of way she provided her (petitioner) was ipso
jure extinguished as a result of the merger of ownership of the dominant and the servient estates in one
person so that there was no longer any compelling reason to provide private respondent with a right of
way as there are other surrounding lots suitable for the purpose. Petitioner strongly maintains that the
proposed right of way is not the shortest access to the public road because of the detour and that,
moreover, she is likely to suffer the most damage as she derives a net income of P600.00 per year from
the sale of the fruits of her avocado tree, and considering that an avocado has an average life span of
seventy (70) years, she expects a substantial earning from it. 7
But we find no cogent reason to disturb the ruling of respondent appellate court granting a right of way
to private respondent through petitioner's property. In fact, as between petitioner Anastacia and
respondent Yolanda their agreement has already been rendered moot insofar as it concerns the
determination of the principal issue herein presented. The voluntary easement in favor of private

respondent, which petitioner now denies but which the court is inclined to believe, has in fact become a
legal easement or an easement by necessity constituted by law. 8
As defined, an easement is a real right on another's property, corporeal and immovable, whereby the
owner of the latter must refrain from doing or allowing somebody else to do or something to be done on
his property, for the benefit of another person or tenement. 9 It is jus in re aliena, inseparable, indivisible
and perpetual, unless extinguished by causes provided by law. A right of way in particular is a privilege
constituted by covenant or granted by law 10 to a person or class of persons to pass over another's
property when his tenement is surrounded by realties belonging to others without an adequate outlet to
the public highway. The owner of the dominant estate can demand a right of way through the servient
estate provided he indemnifies the owner thereof for the beneficial use of his property. 11
The conditions sine quo non for a valid grant of an easement of right of way are: (a) the dominant estate
is surrounded by other immovables without an adequate outlet to a public highway; (b) the dominant
estate is willing to pay the proper indemnity; (c) the isolation was not due to the acts of the dominant
estate; and, (d) the right of way being claimed is at a point least prejudicial to the servient estate. 12
A cursory examination of the complaint of respondent Yolanda for a right of way

13

readily shows that

[E]ven before the purchase of the said parcels of land the plaintiff was reluctant to
purchase the same for they are enclosed with permanent improvements like a concrete
fence and store and have (sic) no egress leading to the road but because of the assurance
of the defendant that plaintiff will be provided one (1) meter wide and five (5) meters long
right of way in the sum of P200.00 per square meter to be taken from Anastacia's lot at
the side of a concrete store until plaintiff reach(es) her father's land, plaintiff was induced
to buy the aforesaid parcels of land . . . That the aforesaid right of way is the shortest,
most convenient and the least onerous leading to the road and being used by the
plaintiff's predecessors-in-interest from the very inception . . .
The evidence clearly shows that the property of private respondent is hemmed in by the estates of other
persons including that of petitioner; that she offered to pay P200.00 per square meter for her right of
way as agreed between her and petitioner; that she did not cause the isolation of her property; that the
right of way is the least prejudicial to the servient estate. 14 These facts are confirmed in the ocular
inspection report of the clerk of court, more so that the trial court itself declared that "[t]he said
properties of Antonio Quimen which were purchased by plaintiff Yolanda Quimen Oliveros were totally
isolated from the public highway and there appears an imperative need for an easement of right of way
to the public highway." 15
Petitioner finally insists that respondent court erroneously concluded that the right of way proposed by
private respondent is the least onerous to the parties. We cannot agree. Article 650 of the New Civil
Code explicitly states that the easement of right of way shall be established at the point least prejudicial
to the servient estate and, insofar as consistent with this rule, where the distance from the dominant
estate to a public highway may be the shortest. The criterion of least prejudice to the servient estate
must prevail over the criterion of shortest distance although this is a matter of judicial appreciation.
While shortest distance may ordinarily imply least prejudice, it is not always so as when there are
permanent structures obstructing the shortest distance; while on the other hand, the longest distance
may be free of obstructions and the easiest or most convenient to pass through. In other words, where
the easement may be established on any of several tenements surrounding the dominant estate, the
one where the way is shortest and will cause the least damage should be chosen. However, as
elsewhere stated, if these two (2) circumstances do not concur in a single tenement, the way which will
cause the least damage should be used, even if it will not be the shortest. 16 This is the test.
In the trial court, petitioner openly admitted

Q. You testified during your direct examination about this plan, kindly go
over this and please point to us in what portion of this plan is the house or
store of the father of the (plaintiff )?
A. This one, sir (witness pointed a certain portion located near the proposed
right of way).
xxx xxx xxx
Q. Now, you will agree with me . . . that this portion is the front portion of
the lot owned by the father of the plaintiff and which was (sic) occupied by
a store made up of strong materials?
A. It is not true, sir.
Q. What materials does (sic) this store of the father of the plaintiff made of?
A. Hollow blocks and the side is made of wood, sir.
xxx xxx xxx
Q. Just before your brother disposed that 1/2 portion of the lot in question,
what right of way does (sic) he use in reaching the public road, kindly point
to this sketch that he is (sic) using in reaching the public road?
A. In my property, sir.
Q. Now you will agree with me . . . the main reason why your brother is (sic)
using this property is because there was a store located near this portion?
A. Yes, and according to the father of Yolanda there is no other way than
this, sir. 17
The trial court found that Yolanda's property was situated at the back of her father's property and held
that there existed an available space of about nineteen (19) meters long which could conveniently serve
as a right of way between the boundary line and the house of Yolanda's father; that the vacant space
ended at the left back of Sotero's store which was made of strong materials; that this explained why
Yolanda requested a detour to the lot of Anastacia and cut an opening of one (1) meter wide and five (5)
meters long to serve as her right of way to the public highway. But notwithstanding its factual
observations, the trial court concluded, although erroneously, that Yolanda was not entitled to a right of
way on petitioner's property since a detour through it would not make the line straight and would not be
the route shortest to the public highway.
In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared that the proposed right
of way of Yolanda, which is one (1) meter wide and five (5) meters long at the extreme right of
petitioner's property, will cause the least prejudice and/or damage as compared to the suggested
passage through the property of Yolanda's father which would mean destroying the sari sari store made
of strong materials. Absent any showing that these findings and conclusion are devoid of factual support
in the records, or are so glaringly erroneous, this Court accepts and adopts them. As between a right of
way that would demolish a store of strong materials to provide egress to a public highway, and another
right of way which although longer will only require an avocado tree to be cut down, the second
alternative should be preferred. After all, it is not the main function of this Court to analyze or weigh the
evidence presented all over again where the petition would necessarily invite calibration of the whole
evidence considering primarily the credibility of witnesses, existence and relevancy of specific

surrounding circumstances, their relation to each other, and the probabilities of the situation. 18 In sum,
this Court finds that the decision of respondent appellate court is thoroughly backed up by law and the
evidence.
WHEREFORE, no reversible error having been committed by respondent Court of Appeals, the petition is
DENIED and the decision subject of review is AFFIRMED. Costs against petitioner. SO ORDERED.
10. EDWIN CASE, petitioner-appellant, vs. THE HEIRS OF TUASON Y SANTIBAEZ, opponentsappellees.
TORRES, J.:
On the 7th of December, 1906, the attorneys for Edwin Case filed a petition with the Court of Land
Registration requesting that the property owned by the applicant, described in the petition, be
registered in accordance with the provisions of Land Registration Act. After a written opposition was
presented by Felipe R. Caballero on the 6th of June, 1907, on behalf of the heirs of late Pablo Tuason and
Leocadia Santibaez, counsel for the applicant, Case, on August 2, 1907, amended the original petition
and set forth: that said property, situated in Calle Escolta, district of Binondo, consists of a parcel of land
and the building erected thereon bearing Nos. 142 and 152; it is bounded on the northwest,
approximately, by the estero of Santa Cruz and the property of Carmen de Ayala de Roxas; on the
southeast by the River Pasig; on the southwest by the property of the heirs of Tuason and Santibaez;
and on the northwest by Calle Escolta and the aforesaid property of Carmen de Ayala de Roxas; that the
total area is 3,251.84 square meters, its description and boundaries being detailed in the plan attached
to the petition; that according to the last assessment made for the purposes of taxation the land was
valued at P170,231 and the buildings thereon at P30,000; that the property is free from all incumbrance,
and no one has any interest therein or right thereto; that on the northeast side the property has in its
favor the right of easement over some 234.20 square meters of land owned by the said Ayala de Roxas,
and that the applicant acquired the property by succession from Doa Clotilde Romree.
In the written opposition above alluded to, counsel for the heirs of Pablo Tuason and Leocadia
Santibaez alleged that the parties whom he represents are owners in common of the property adjoining
that of the petitioner on the southwest; that the latter, in making the plan attached to his petition,
extended his southwest boundary line to a portion of the lot of the said heirs of Tuason and Santibaez
in the form indicated by the red line in the annexed plan; that the true dividing line between the
property of the petitioner and that of the said heirs is the walls indicated in black ink on the
accompanying plan; that said walls belong to the opponents, and that about two years ago, when the
applicant made alterations in the buildings erected on his land, he improperly caused a portion of them
to rest on the wall owned by the parties whom he represents, at point 12, 13, and 14 of said plan; for
which reason the opponent prayed the court to direct the applicant to amend the line marked in his plan
with the letters Y, X, U, T, S, and R, so that it may agree with the wall indicated by the numbers 1, 2, 3,
4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 on the plan which accompanies the written opposition, reducing
the area to whatever it may be after the amendment has been made; that the applicant be compelled to
remove the supports that he placed for his buildings on the wall of the representatives of the petitioner,
and that he be sentenced to pay the costs.
The case was brought to trial, both parties adduced evidence, and their exhibits were made of record.
The court, assisted by the interested parties and their respective experts, made an inspection of the two
properties, in view of which it entered judgment on the 31st of July, 1908, sustaining the opposition
offered by the representative of the heirs of Pablo Tuason Leocadia Santibaez, and after declaring a
general default granted the registration of the property described in the application filed by Edwin Case,
with the exclusion of the wall claimed by the opponents and shown on their plan by the lines numbered
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14; and in view of the fact that the lines drawn on the plan
offered in evidence by the applicant under letter G are not correctly drawn, once this decision shall have
become final, let the dividing line of both properties be fixed by common accord between the two
parties and their experts, taking as a base for the same the amended line of walls drawn on the plan of
the opponents, but should they not reach an agreement a surveyor of the Court of Land Registration
shall be detailed to fix the same at the expense of the parties; the court also ordered the cancellation of
the registration entries of the property entered in the name of Clotilde Romree, principal of the

petitioner, at page 142 and those following of volume 15, section of Binondo and 52 of the register,
property No. 828, first entry.
On the 12th of August, 1908, the petitioner moved for a new trial on the ground that the evidence was
not sufficient to justify the decision of the court in excluding the wall claimed by the opponents; that
said decision was contrary to the law, in so far as it excludes the said wall, and that the conclusions of
fact therein are openly and manifestly contrary to the weight of the evidence in so far as they referred to
the exclusion of said wall. The said motion was overruled on the 15th of same month, to which
overruling the applicant excepted and announced his intention to perfect the corresponding bill of
exceptions which was filed, approved, and submitted to this court together with the proper assignment
of errors.
In the appeal interposed by the applicant against the decision of the Court of Land Registration, now
before this court, the questions set up are merely of fact.
The question is whether the wall that with slight interruption runs from Calle Escolta to the River Pasig,
and which divides the adjoining properties of the applicant, Edwin Case, and of the opponents, belongs
to the former, as he claimed in the first instance, or is a dividing wall as affirmed in his brief in this
second instance, or is the property of the said opponents, the heirs of the late Tuason and
Santibaez. lawphi1.net
The trial court after considering the evidence adduced by both parties to the suit, found that the wall in
controversy belongs to the opponents for the reason, among others, that in the public document by
which one of their original ancestors acquired on the 19th of April, 1796, the property now possessed by
them, it appears that property was then already inclosed by a stone wall. This document, which was
offered in evidence by the opponents, has not been impugned by the applicant. On the contrary, it was
acknowledge as the title deed of the property adjoining that of the applicant by the witness Juan B.
Tuason, who knows the one and the other.
It is fully proven that two walls extend from Calle Escolta to the interior of both properties, the one
backing the other, and which respectively support the edifices of the petitioner and of the opponents
from points 36, 35, 34, 33, 32, 31, and 30 on the plan of the petitioner corresponding to points 1 to 6 on
that of the opponents.
This section of the wall of the opponents embraced within the points mentioned in the plans offered in
evidence by the parties, for very reason that it supports only the property of the opponents and not that
of the petitioner, can not be a party wall, one-half of which along its entire length would belong to the
adjoining building owned by Mr. Case. There is not sufficient proof to sustain such claim, and besides,
the building erected thereon disproves the pretension of the petitioner.
It should, however, be noted that the portion of the wall between the numbers 3, 4, 5, and 6 on the plan
of the opponents, which corresponds to numbers 33, 32, 31, and 30 of that of the petitioner, and which
constitutes the cesspool on the property of the latter, belongs to him, and it has so been admitted by
counsel for the opponents, for the reason that the petitioner had acquired it by prescription, the
opponents having lost control over the area of land covered by the said cesspool together with the walls
that inclose it.
Under article 572 of the Civil Code the easement of party walls is presumed, unless there is a title or
exterior sign, or proof to the contrary, among others, in dividing walls adjoining buildings up to the
common point of elevation.
The legal presumption as to party walls is limited to the three cases dealt with in the said article of the
code, and is that of juris tantum unless the contrary appear from the title of ownership of the adjoining
properties, that is to say, that the entire wall in controversy belongs to one of the property owners, or
where there is no exterior sign to destroy such presumption and support a presumption against the
party wall.lawphi1.net (Art. 573, Civil Code.)

The intermediate portion of the walls in question, lying between numbers 6 and 13 on the defendants'
plan, equivalent to a little more than numbers 30 to 25 on the plan of the petitioner, is the portion
against which no other wall appears to have been erected on the land owned by Mr. Case. In spite of this
it can not be presumed that the aforesaid portion was a party wall, and that it was not exclusively
owned by the defendants, inasmuch as the latter have proven by means of a good title that has not
been impugned by the petitioner, that when one of their ancestors and principals acquired the property
the lot was already inclosed by the wall on which the building was erected; it must therefore be
understood that in the purchase of the property the wall by which the land was inclosed was necessarily
included.
The above documentary evidence has not been overcome by any other presented by the petitioner, but
apart from that record discloses the existence of certain unquestionable signs. These consist of
constructions made by the petitioner himself on his own property which entirely destroy any
presumption that it is a party wall, and indeed gives rise to a presumption against it.
Three openings have been made in the wall , undoubtedly to allow the passage of air and light. Two of
them are beveled on the side toward the land of the objectors, and the third has recently been beveled
on the other. A rafter or lintel was found imbedded in the wall on the side of the property of the
opponents. These things constitute exterior signs and were recorded as the result of personal inspection
by the trial court in company with the experts of both parties. These signs positively and conclusively
prove that the said wall is not a party wall, but the exclusive property of the defendant. This is further
confirmed by the testimony of the witnesses at the trial.
The fact that the petitioner built a wall and backed it against the one in question to support the edifice
he had constructed between points 21 and 13 of the corrected plan is a further indication that the
neighboring wall is not a party one. He knew perfectly well that he had no right to rest his building on
the latter. That he built a terrace about four years previously over the wall between points 30, 29, 28,
and 27 does not prove that the whole of the wall, from the Escolta to the River Pasig, is a party wall, but
it does show that he usurped a portion thereof to the prejudice of the real owner.
Neither can it be presumed that that part of the wall bordering on the River Pasig comprised between
points 13 and 14 is a party wall. It was shown in the proceedings as resulting from the above-mentioned
ocular inspection that the side of the said wall, which is rather a low one, there is another, a higher one
erected on the petitioner's land and backed against the one in question. The first one, as has been said,
forms part of that which has surrounded the property from the date of its acquisition, more than a
century ago, until the present date. It is absolutely independent of that built by the petitioner, and that it
is the exclusive property of the objectors and is not a party wall can not be denied.
It therefore appears from the proceedings that, with the exception of the small portion of the wall in
question occupied by the latrine on the property of the petitioner, and which the opponents admit that
he has acquired by prescription, the whole of said wall from the Escolta to the River Pasig can not be
presumed to be a party wall; the evidence to the contrary conclusively proves that it belonged
exclusively to the defendants, and it has been further shown in the case that at one time an old building
belonging to the opponents used to rest on a portion of the wall near the river.lawphi1.net
In view of the foregoing, and considering that the judgment appealed from is in accordance with the law
and the merits of the case, it is our opinion that the same should be affirmed in full, as we do hereby
affirm it, with the costs against the petitioner. So ordered.
11. SEVERINA and FLORA CHOCO, plaintiffs-appellants, vs. ISIDRO SANTAMARIA, defendantappellant.
MAPA, J.:
The judgment rendered in this case in first instance is in part as follows:

From the evidence presented at the trial, I find that the defendants is in possession of a parcel of
land on the corner of Calles Pescadores and P. Rada, in the district of Tondo, city of Manila, and
that he was erected a house thereon flush with the boundary line of the adjacent property; that
the plaintiffs are the owners of the land on both sides of the defendant's house, erected as
stated, both on Calle Pescadores and Calle P. Rada; that the defendant in the building of his
house has made several openings and windows in the walls of the house on both sides
overlooking then property of the plaintiff; that at the time the defendant was building his house,
and the windows and the openings were being made, the plaintiffs protested, and later on and in
the year 1905 made written protest and demand on the defendant, and the defendant received
the written protest and referred it to his counsel, who, from the evidence, appears to have
suggested an amicable and adjustment of the matter, but the adjustment was not made, and this
action was brought.
It is likewise established that the entrance to the defendant's house is in Calle Pescadores, and
taking it as the front of his house he has put a large window in its upper story, on the balcony of
said house, marked 1 on Exhibit A, overlooking Calle P. Rada; and that this window and its
balcony do not face directly toward the house of the plaintiffs.
There have also been constructed two windows in the rear wall of the house of the defendant, in
the first story of the house, which are marked 8 and 9 on exhibit A, and these windows are each
50 by 80 centimeters, and are placed immediately under the ceiling of the first story, and each of
these windows is equally divided into four panes.
On the right hand side of the house, entering from Calle Pescadores, there is a window or
opening in the wall of the house in the second story, which is about 25 by 35 centimeters, and is
located a little more than half way from the floor of the ceiling of the second story and this is
subdivided into smaller panes; and on the same side there are three windows which are marked
2, 3, and 4 on Exhibit A, located immediately under the ceiling of the first story, and each of the
three is 25 by 25 centimeters.
There are two other windows on the same side located immediately under the ceiling, which are
marked as 5 and 6 on Exhibit A and also on Exhibit C, and one of these windows is about 35 by
67 centimeters, and the other about 75 by 90 centimeters.
It also appears that there is wire screening over all these openings or windows.1awphil.net
The law provides that the owner of a wall which is not a party wall, adjoining another's estate,
may make in it windows or openings to admit light at the height of the ceiling joist, or
immediately under the ceiling, thirty centimeters square, with an iron gate embedded in the wall
and a wire screen.
In this case the windows are in a wall not a party wall adjoining the plaintiff's estate, and the
window marked 2, 3, and 4, as appears on Exhibit A, are less than thirty centimeters square and
have a wire screen, but there does not appear to be the iron gate embedded in the wall.
The windows marked 5 and 6, as indicated in Exhibit A, have a wire screen but are more than
thirty centimeters square, and have the iron grate embedded in the wall.
The window marked 7 on Exhibit A has a wire screen, but is more than 30 centimeters square and
has not the iron grate embedded on the wall.
The windows 8 and 9, as indicated on Exhibit A, have a wire screen but no iron grate embedded
in the wall, and are of a greater dimension than thirty centimeter square.

The window marked One on Exhibit A is located in a balcony which overlooks the street, while the
premises of the plaintiff may be seen from it, it is not adjoining their estate.
The court finds that the plaintiffs are entitled to a decree for closing all the windows or openings
in the walls of the defendant's house, as herein before described, which directly overlook the
premises of the plaintiffs, or that in some other way the provisions of the law be complied with so
that they may remain open.
All these openings and windows can be made to comply with the law, with the exception of that
marked 7, which is not immediately under the ceiling (techo).
Let judgment be entered in favor of the plaintiffs, Severina and Flora Choco, and against the
defendant, Isidro Santamaria, forever prohibiting the opening of the window marked No. 7, as
hereinbefore stated, which must be closed, and forever prohibiting the opening of the windows
and openings marked, as herein before stated, 2, 3, 4, 5, 6, 8, and 9, which must be closed or
made to conform to the requirements of law with regard to dimensions and an iron grate
embedded in the wall, with the costs of the action.
The plaintiffs appealed from that judgment and allege in their appeal in this instance:1awphil.net
1. That the lower court erred by not ordering in his judgment the final and perpetual closing of the large
window opened in the balcony of the back part of the appellee's house and marked No. 1 in the
photographic Exhibits A and D, on the ground that the said window is in the balcony which overlooks
Calle Padre Rada and that, though the appellant's lot can be seen through the window, it is not
contiguous to the latter's property.
2. That the trial court also erred in ordering in his judgment that the openings and windows, Nos. 2, 3, 4,
5, 6, 8, and 9, might continue open if they were fixed so as to comply with the requirements of the law
as regards their dimensions and the placing of iron grates embedded in the wall.
3. That the lower court also erred in denying the appellant's petition for rehearing.
It appears obvious to us, from the evidence, that the window No. 1, referred to in the first assignment of
errors, is next appellants' lot. To judge from the photographic views, Exhibits A and D, it opens on the
boundary line between the said lot and that the appellee and is situated perpendicularly above a part of
the wall that belongs to the appellants. This opinion is corroborated by the testimony of the defendant's
witness who took the said photographs, in so far as he said that "a part of the window in question is in
front of the plaintiffs' property, and a person approaching the window may clearly see the said lot." And
certainly if it is in front of this lot, it is unquestionable that it directly overlooks the same; but even
though it did not and only a side or oblique view of the lot could be obtained from it, it could not be kept
open, since between it and the plaintiffs' property there does not intervene the distance required by law
that of two meters in the first case, and 60 centimeters in the second. In reality, there is no distance
at all between the said window and the plaintiffs' lot, because, as we have said, this window is
perpendicular to the boundary line of the said lot; therefore, its opening is a manifest violation of the
provisions of article 582 of the Civil Code which reads as follows:
Windows with direct views, or balconies or any similar openings projecting over the estate of the
neighbor, can not be made if there is not a distance of, at least, 2 meters between the wall in
which they are built and said estate.
Neither can side nor oblique views be opened over said property, unless there is a distance of 60
centimeters.

Because of the lack of the distance required by law, the window in question must be closed, and
consequently the judgment appealed from should be modified in this sense, as regards this window.
With respect to the second assignment of error, the question raised by the appellants concerns the
proper interpretation of article 581 of the Civil Code which describes as follows:itc-alf
The owner of the wall which is not a party-wall, adjoining anothers estate, may make in it
windows or openings to admit light, at the height of the ceiling joists or immediately under the
ceiling, of the dimentions of 30 centimeters square and, in any case, with an iron grate
embedded in the wall and a wire screen.
The windows mentioned in this part of the appeal are those indicated by Nos. 2, 3, 4, 5, 6, 8, and 9, in
the defendant's Exhibit A. They are all situated immediately under the ceiling of the first door and are
provided with wire screens; some of them measure more and other less than 30 centimeters square and
none of them have iron grates embedded in the wall. Owing to this last circumstance, none of them fully
comply with the conditions required by the law; moreover, those numbered 5, 6, 8, and 9, have the
additional defect of being greater than 30 centimeters square. The trial judge therefore ordered, in the
judgment, that all the aforementioned windows be closed or that they be made to conform to the law
with respect to their dimentions and the placing of the iron grates embedded in the wall. The appellants
maintain that these windows should have been ordered closed absolutely and finally, and, consequently,
that the option allowed the defendant to keep them open, provided that he brought them within the
terms of the law, in contrary to the same and, therefore, illegal.
It is alleged as a ground for such averment that none of the ceiling joist, which is the first condition
required by law.
We understand by ceiling joist say the appellants in a building composed of any given
number of stories, the long pieces to which are nailed the boards that form the ceiling of
the last story of the building, counting the stories from below; and this interpretation which we
give to the words ceiling joists must be that most in harmony with the spirit of article 581 of the
code, the subject of our examination, since immediately after them in the same article, in
explanation, are found the words or immediately under "los techos," in order to indicate, without
the least doubt, the sole place or height where openings or windows may be made in conformity
within the law. It is needless to say that a building, though composed of several stories, can have
but one techo. . . .
This last assertion is incorrect. By techo is understood that part of a construction which covers the
rooms under it and certainly forms one of the essential parts of every story. A story is composed of
earth, payment and ceiling, the latter, that is, the ceiling, being that part of the story that the visible to
the observer situated below in the room covered by it. (Hispano-American Encyclopedic Dictionary, by
Montaner and Simon.) Consequently, every story has a ceiling, and not, as the appellants maintain, the
upper one alone.
Nor is their definition exact of the word joists, as it is employed in article 581 of the Code. According to
the dictionary of the Spanish Academy, these are, in architecture, understood to be a kind of beam laid
horizontally and serving in buildings to support others of for bracing and connecting the parts of the
structure. Mucius Scaevola says in his Civil Code, volume 10, page 448:
The horizontal timbers that are placed upon the tops of the uprights, that is, what are commonly
called beams, intended to serve for connection and main support of the timbers of the different
floors that separate the stories of the building, are called joists.
According to these definitions each floor necessarily has joists, that is, beams, since, in the last analysis
they are what support and secure the structure of the story immediately above; therefore it is not true

that there may be joists only in the top story, as the appellants claim by saying that they understand to
be such the long timbers to which are fastened the boards of the ceiling at the top story of the building.
On the contrary, carefully considered, it is precisely the top story that does not need joists, since it does
not have to support any other higher portion of the building. It has only to support the weight of the
roof, which undoubtedly much less than that of a whole story. So that, according to Mucius Scaevola
(work cited, vol. 10, p. 487), it can not be said that the top story has joists. And because it certainly does
not have them, is reason why the code in said article 581 employs the phrase orimmediately under "los
techos" in referring to the top story.
The author's words in expounding this theory in his commentary on article 581 of the Civil Code are as
follows:
We said elsewhere that these (the joists) were horizontal timbers that rest upon the tops of the
uprights; they form, then, the upper limit of the different stories of a house; and therefore, in
referring to the top story, which can not be said to have joists, article 581 makes use of the
phrase or immediately under "los techos."
This does not mean that the italicized phrase refers solely and exclusively to the top story, since lower
stories also have techos, as above set forth. In our opinion what the author cited means is that in
speaking of the top story, which has no joists, the words or article 581 of the code, at the height of the
ceiling joists, fail to apply, the phase or immediately under "los techos" alone being thereto applicable,
in distinction from the lower stories, with regard to which both phrases are applicable as they have at
the same time joists and techo. In referring to the lower stories either phrase may, in connection with
the other, determine the place, which surely can be more than one, where it is permissible to open the
windows called regulation windows, whenever in them the joists are actually joined to or placed next to
the techo which forms the top of each of said stories. Both phrases therefore express the same idea with
reference to the lower stories.
Aside from what has been said here, the object of the law in authorizing the opening of the windows in
question in all the stories of a building, without any exception, is clear. Their purpose is, as article 581
itself says, to furnish light to the rooms, and it is evident at a glance that the rooms of the lower stories
have as much need for light as those of the top story. No good reason exists for having one story in
better condition than another, whichever it may be, connection with this provision of law.
The defendant is ordered to close finally and forever the window marked No. 1 in Exhibit A, the judgment
appealed from in so far as it refers to said window being thus modified, but affirmed in all other
respects; without special finding as to costs in this instance.