G.R. No.
147957 July 22, 2009 titles to and interests in its receivables with Caruff, including the properties it acquired from the
PRIVATIZATION AND MANAGEMENT OFFICE, Petitioner,
vs.
LEGASPI TOWERS 300, INC., Respondent.
DECISION
PERALTA, J.:
This is a petition for review on certiorari seeking to annul and set aside the Decision1 dated
February 16, 2001, of the Court of Appeals (CA) in CA-G.R. CV No. 48984, affirming the
Decision of the Regional Trial Court (RTC).
The factual and procedural antecedents are as follows:
Caruff Development Corporation owned several parcels of land along the stretch of Roxas
Boulevard, Manila. Among them were contiguous lots covered by Transfer Certificate of Title
(TCT) Nos. 120311, 120312, 120313, and 127649 (now TCT No. 200760).
Sometime in December 1975, Caruff obtained a loan from the Philippine National Bank (PNB)
to finance the construction of a 21-storey condominium along Roxas Boulevard.2 The loan
accommodation was secured by a real estate mortgage over three (3) parcels of land covered
by TCT Nos. 120311, 120312, and 120313,3 where Caruff planned to erect the condominium.
In 1979, Caruff started constructing a multi-storey building on the mortgaged parcels of land.
Along with the other appurtenances of the building constructed by Caruff, it built a powerhouse
(generating set) and two sump pumps in the adjacent lot covered by TCT No. 127649 (now
TCT No. 200760).
After the completion of the condominium project, it was constituted pursuant to the
Condominium Act (Republic Act No. 4726), as the Legaspi Towers 300, Inc.
However, for Caruff’s failure to pay its loan with PNB, the latter foreclosed the mortgage and
acquired some of the properties of Caruff at the sheriff’s auction sale held on January 30,
1985.4
Thereafter, Proclamation No. 505 was issued. It was aimed to promote privatization "for the
prompt disposition of the large number of non-performing assets of the government financial
institutions, and certain government-owned and controlled corporations, which have been
found unnecessary or inappropriate for the government sector to maintain." It also provided for
the creation of the Asset Privatization Trust (APT).
By virtue of Administrative Order No. 14 and the Deed of Transfer executed by PNB, the
National Government, thru the APT, became the assignee and transferee of all its rights and
foreclosure of Caruff’s mortgage.
Meanwhile, Caruff filed a case against PNB before the RTC of Manila, Branch 2, whereby
Caruff sought the nullification of PNB’s foreclosure of its properties.6 The case was docketed
as Civil Case No. 85-29512.
A Compromise Agreement7 dated August 31, 1988 was later entered into by Caruff, PNB, and
the National Government thru APT. The parties agreed, among other things, that Caruff would
transfer and convey in favor of the National Government, thru the APT, the lot covered by TCT
No. 127649 (now TCT No. 200760), where it built the generating set and sump pumps.
On September 9, 1988, the RTC rendered a Decision approving the Compromise Agreement
executed and submitted by the parties. The dispositive portion of said Decision reads:
x x x and finding the foregoing compromise agreement to be well-taken, the Court hereby
approves the same and renders judgment in accordance with the terms and conditions set forth
[sic] therein and enjoins the parties to comply strictly therewith.
SO ORDERED.8
Thus, by virtue of the Decision, the subject property was among those properties that were
conveyed by Caruff to PNB and the National Government thru APT.
On July 5, 1989, respondent filed a case for Declaration of the existence of an easement before
the RTC of Manila, docketed as Spec. Proc. No. 89-49563. Respondent alleged that the act of
Caruff of constructing the powerhouse and sump pumps on its property constituted a voluntary
easement in favor of the respondent. It prayed, among other things, that judgment be rendered
declaring the existence of an easement over the portion of the property covered by TCT No.
127649 (now TCT No. 200760) that was being occupied by the powerhouse and the sump
pumps in its favor, and that the Register of Deeds of Manila annotate the easement at the back
of said certificate of title.9
In its Answer with Counterclaim and Cross-claim,10 APT alleged that respondent had no cause
of action against it, because it was but a mere transferee of the land. It acquired absolute
ownership thereof by virtue of the Compromise Agreement in Civil Case No. 85-2952, free from
any liens and/or encumbrances. It was not a privy to any transaction or agreement entered into
by and between Caruff, respondent, and the bank. It further alleged that the continued use of
the subject property by respondent and the condominium owners without its consent was an
encroachment upon its rights as absolute owner and for which it should be properly
compensated.
On January 12, 1995, after trial on the merits, the RTC rendered a Decision11 declaring the
existence of an easement over the portion of the land covered by TCT No. 127649 (TCT No.
200760), the decretal portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of the petitioner and against the
respondents hereby declaring the existence of an easement over the portion of land covered
by TCT No. 200760 (previously No. 127649) occupied at present [by the] powerhouse and
sump pumps nos. 1 and 2 only, of Legaspi Towers 300, in favor of Legaspi Towers 300,
Incorporated. The Register of Deeds of Manila is, likewise, hereby directed to annotate this
easement at the back of the said certificate of title. The counterclaim and cross-claim are
dismissed accordingly.
SO ORDERED.
Aggrieved, APT sought recourse before the CA in CA-G.R. CV No. 48984.
Subsequently, the term of existence of APT expired and, pursuant to Section 2, Article III of
Executive Order No. 323, the powers, functions, duties and responsibilities of APT, as well as
all the properties, real or personal assets, equipments and records held by it and its obligations
and liabilities that were incurred, was transferred to petitioner Privatization and Management
Office (PMO). Thus, the PMO substituted APT in its appeal.
On February 16, 2001, finding no reversible error on the part of the RTC, the CA rendered a
Decision12 affirming the decision appealed from. PMO filed a Motion for Reconsideration, but
it was denied in the Resolution13 dated May 3, 2001.
Hence, the present petition assigning the following errors:
I is so great as to impair usefulness of the servient estate, it would amount to a cancellation of
THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE DECISION
OF THE COURT A QUO IN FINDING THAT [THE] PRESENCE OF THE GENERATOR SET
(GENERATING SET) AND SUMP PUMPS CONSTITUES AN EASEMENT.
II
THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE DECISION
OF THE COURT A QUO IN DECLARING THE EXISTENCE OF AN EASEMENT OVER THE
PORTION OF LAND COVERED BY TCT NO. [200760] OCCUPIED BY THE GENERATOR
SET AND SUMP PUMPS NOS. 1 AND 2, PURSUANT TO ARTICLE 688 OF THE CIVIL
CODE.
III
THE PUBLIC RESPONDENT COURT OF APPEALS ERRED IN AFFIRMING THE DECISION
OF THE COURT A QUO IN NOT REQUIRING THE RESPONDENT-PETITIONER TO PAY
ANY COMPENSATION TO PETITIONER, THE OWNER OF THE LAND, FOR THE USE OF
ITS PROPERTY.14
Petitioner argues that the presence of the generator set and sump pumps does not constitute
an easement. They are mere improvements and/or appurtenances complementing the
condominium complex, which has not attained the character of immovability. They were placed
on the subject property as accessories or improvements for the general use and comfort of the
occupants of the condominium complex.
Petitioner maintains that, as the generator set and sump pumps are improvements of the
condominium, the same should have been removed after Caruff undertook to deliver the
subject property free from any liens and encumbrances by virtue of the Decision of the RTC in
Civil Case No. 85-29512 approving the parties’ Compromise Agreement. It adds that, in
alienating the property in favor of APT/PMO, Caruff could not have intended to include as
encumbrance the voluntary easement.
Petitioner posits that respondent failed to present any evidence to prove the existence of the
necessary requisites for the establishment of an easement. There is no concrete evidence to
show that Caruff had a clear and unequivocal intention to establish the placing of the generator
set and sump pumps on the subject property as an easement in favor of respondent.
Lastly, petitioner contends that respondent is a "squatter" for having encroached on the
former’s property without its consent and without paying any rent or indemnity. Petitioner
submits that respondent’s presence on the subject property is an encroachment on ownership
and, thus, cannot be properly considered an easement. It adds that an easement merely
produces a limitation on ownership, but the general right of ownership of the servient tenement
must not be impaired so as to amount to a taking of property. When the benefit being imposed
the rights of the latter.
Petitioner insists that, for having unjustly enriched itself at the expense of the National
Government and for encroaching on the latter’s rights as the absolute owner, respondent
should rightfully compensate the National Government for the use of the subject property which
dates back to August 28, 1989 up to the present.1avvphi1
For its part, respondent argues that it was the intention of Caruff to have a voluntary easement
in the subject property and for it to remain as such even after the property was subsequently
assigned to APT. It was Caruff who constructed the generating set and sump pumps on its
adjacent property for the use and benefit of the condominium adjoining it. Also, the manner in
which the sump pumps were installed is permanent in nature, since their removal and transfer
to another location would render the same worthless and would cut off the supply of electricity
and water to the condominium and its owners.
Respondent maintains that petitioner cannot assume that Caruff intended to renounce the
voluntary easement over the subject property by virtue of the Compromise Agreement, since
such defense can only be presented by Caruff and not the petitioner. It added that petitioner
had actual notice of the presence of the generating set and sump pumps when they were
negotiating with Caruff regarding the compromise agreement and at the time the subject
property was transferred to petitioner. Also, petitioner cannot claim the payment of rent,
considering that there was no written demand for respondent to pay rent or indemnity.
Respondent submits that the mandate of petitioner to privatize or dispose of the non-performing
assets transferred to it does not conflict with the issue of the declaration of the easement over
the subject property, considering that petitioner is not prevented from privatizing the same
despite the presence of the voluntary easement.
The petition is meritorious.
An easement or servitude is "a real right constituted on another’s property, corporeal and
immovable, by virtue of which the owner of the same has to abstain from doing or to allow
somebody else to do something on his property for the benefit of another thing or person."15
The statutory basis of this right is Article 613 of the Civil Code, which provides:
Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the
benefit of another immovable belonging to a different owner.
The immovable in favor of which the easement is established is called the dominant estate;
that which is subject thereto, the servient estate.
There are two sources of easements: by law or by the will of the owners. Article 619 of the Civil
Code states:
Art. 619. Easements are established either by law or by the will of the owners. The former are
called legal and the latter voluntary easements.
In the present case, neither type of easement was constituted over the subject property.
In its allegations, respondent claims that Caruff constituted a voluntary easement when it
constructed the generating set and sump pumps over the disputed portion of the subject
property for its benefit. However, it should be noted that when the appurtenances were
constructed on the subject property, the lands where the condominium was being erected and
the subject property where the generating set and sump pumps were constructed belonged to
Caruff. Therefore, Article 613 of the Civil Code does not apply, since no true easement was
constituted or existed, because both properties were owned by Caruff.
Also, Article 624 of the Civil Code is controlling, as it contemplates a situation where there
exists an apparent sign of easement between two estates established or maintained by the
owner of both. The law 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.16
From the foregoing, it can be inferred that when the owner of two properties alienates one of
them and an apparent sign of easement exists between the two estates, entitlement to it
continues, unless there is a contrary agreement, or the indication that the easement exists is
removed before the execution of the deed.
In relation thereto, the Compromise Agreement, as approved by the court, clearly states,
among other things, that:
xxxx
2.0 That in consideration of the covenants hereunder stipulated, plaintiff [Caruff] Development
Corporation (CDC), hereby terminates the instant case against defendants Philippine National
Bank (PNB) and the National Government/APT, and hereby:
2.1 Assigns, transfers and conveys in favor of defendant National government thru APT, CDC’s
rights, title and interest in the Maytubig property, situated at the back of the Legaspi Towers
300 Condominium, consisting of seven (7) contiguous lots with an aggregate area of 1,504.90
square meters, covered by the following Transfer Certificate of Title, viz: TCT No. 23663 –
Pasay City Registry; TCT No. 142497 – Metro Manila 1 Registry; TCT No. 142141 – Metro
Manila 1 Registry; TCT No. 127649 – Metro Manila 1 Registry; x x x; all titles, free from any
and all liens and encumbrances, to be delivered, and the necessary papers and documents to
be turned over/executed to effect transfer in favor of the National Government/APT, upon
approval of this Compromise Agreement;
x x x x.17
Thus, when the subject property was assigned to the National Government thru the APT, no
easement arose or was voluntarily created from the transfer of ownership, considering that the
parties, more particularly, Caruff, pledged that it was assigning, transferring, and conveying the
subject property in favor of the National Government thru the APT "free from any and all liens
and encumbrances."
Compromise agreements are contracts, whereby the parties undertake reciprocal obligations
to resolve their differences, thus, avoiding litigation, or put an end to one already
commenced.18 As a contract, when the terms of the agreement are clear and explicit that they
do not justify an attempt to read into it any alleged intention of the parties; the terms are to be
understood literally, just as they appear on the face of the contract.19 Considering that Caruff
never intended to transfer the subject property to PMO, burdened by the generating set and
sump pumps, respondent should remove them from the subject property.
As regards PMO’s claim for rent, respondent has been enjoying the use of the subject property
for free from the time the rights over the property were transferred and conveyed by Caruff to
the National Government.

We have held that "[t]here is unjust enrichment when a person unjustly retains a benefit to the
loss of another, or when a person retains money or property of another against the fundamental
principles of justice, equity and good conscience." Article 22 of the Civil Code provides that
"[e]very person who, through an act or performance by another, or any other means, acquires
or comes into possession of something at the expense of the latter, without just or legal ground,
shall return the same to him." The principle of unjust enrichment under Article 22 of the Civil
Code requires two conditions: (1) that a person is benefited without a valid basis or justification,
and (2) that such benefit is derived at another’s expense or damage.20
In the present case, there is no dispute as to who owns the subject property and as to the fact
that the National Government has been deprived of the use thereof for almost two decades.
Thus, it is but just and proper that respondent should pay reasonable rent for the portion of the
subject property occupied by the generating set and sump pumps, from the time respondent
deprived the lawful owner of the use thereof up to the present. To rule otherwise would be
unjust enrichment on the part of respondent at the expense of the Government.
From the records, APT/PMO submitted, as part of its evidence, a letter21 dated June 18, 1992,
wherein it fixed the monthly rental fee per square meter of the entire property at ₱56.25, or
₱1.81 per square meter per day. Hence, respondent should pay the National Government
reasonable rent in the amount of ₱56.25 per square meter per month, to be reckoned from
August 28, 1989 up to the time when the generating set and sump pumps are completely
removed therefrom.
WHEREFORE, premises considered, the Decision of the Regional Trial Court in Spec. Proc.
No. 89-49563 dated January 12, 1995, and the Decision and Resolution of the Court of Appeals
in CA-G.R. CV No. 48984 dated February 16, 2001 and May 3, 2001, respectively, are
REVERSED and SET ASIDE.
Legaspi Towers 300, Inc. is DIRECTED to REMOVE the generating set and sump pumps 1
and 2 from the property covered by TCT No. 200760 and to PAY reasonable rent at the rate of
₱56.25 per square meter/per month from August 28, 1989 until the same are completely
removed.
SO ORDERED.
G.R. No. 168732 June 29, 2007
NATIONAL POWER CORPORATION, petitioner,
vs.
LUCMAN G. IBRAHIM, OMAR G. MARUHOM, ELIAS G.MARUHOM, BUCAY G.
MARUHOM, FAROUK G. MARUHOM, HIDJARA G. MARUHOM, ROCANIA G. MARUHOM,
POTRISAM G. MARUHOM, LUMBA G. MARUHOM, SINAB G. MARUHOM, ACMAD G.
MARUHOM, SOLAYMAN G. MARUHOM, MOHAMAD M. IBRAHIM, and CAIRONESA M.
IBRAHIM, respondents.
DECISION
AZCUNA, J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to annul
the Decision1 dated June 8, 2005 rendered by the Court of Appeals (CA) in C.A.-G.R. CV No.
57792.
The facts are as follows:
On November 23, 1994, respondent Lucman G. Ibrahim, in his personal capacity and in behalf
of his co-heirs Omar G. Maruhom, Elias G. Maruhom, Bucay G. Maruhom, Mamod G.
Maruhom, Farouk G. Maruhom, Hidjara G. Maruhom, Rocania G. Maruhom, Potrisam G.
Maruhom, Lumba G. Maruhom, Sinab G. Maruhom, Acmad G. Maruhom, Solayman G.
Maruhom, Mohamad M. Ibrahim and Caironesa M. Ibrahim, instituted an action against
petitioner National Power Corporation (NAPOCOR) for recovery of possession of land and
damages before the Regional Trial Court (RTC) of Lanao del Sur.
In their complaint, Ibrahim and his co-heirs claimed that they were owners of several parcels
of land described in Survey Plan FP (VII-5) 2278 consisting of 70,000 square meters, divided
into three (3) lots, i.e. Lots 1, 2, and 3 consisting of 31,894, 14,915, and 23,191 square meters
each respectively. Sometime in 1978, NAPOCOR, through alleged stealth and without
respondents’ knowledge and prior consent, took possession of the sub-terrain area of their
lands and constructed therein underground tunnels. The existence of the tunnels was only
discovered sometime in July 1992 by respondents and then later confirmed on November 13,
1992 by NAPOCOR itself through a memorandum issued by the latter’s Acting Assistant
Project Manager. The tunnels were apparently being used by NAPOCOR in siphoning the
water of Lake Lanao and in the operation of NAPOCOR’s Agus II, III, IV, V, VI, VII projects
located in Saguiran, Lanao del Sur; Nangca and Balo-i in Lanao del Norte; and Ditucalan and
Fuentes in Iligan City.
On September 19, 1992, respondent Omar G. Maruhom requested the Marawi City Water
District for a permit to construct and/or install a motorized deep well in Lot 3 located in Saduc,
Marawi City but his request was turned down because the construction of the deep well would
cause danger to lives and property. On October 7, 1992, respondents demanded that
NAPOCOR pay damages and vacate the sub-terrain portion of their lands but the latter refused
to vacate much less pay damages. Respondents further averred that the construction of the
underground tunnels has endangered their lives and properties as Marawi City lies in an area
of local volcanic and tectonic activity. Further, these illegally constructed tunnels caused them
sleepless nights, serious anxiety and shock thereby entitling them to recover moral damages
and that by way of example for the public good, NAPOCOR must be held liable for exemplary
damages.
Disputing respondents’ claim, NAPOCOR filed an answer with counterclaim denying the
material allegations of the complaint and interposing affirmative and special defenses, namely
that (1) there is a failure to state a cause of action since respondents seek possession of the
sub-terrain portion when they were never in possession of the same, (2) respondents have no
cause of action because they failed to show proof that they were the owners of the property,
and (3) the tunnels are a government project for the benefit of all and all private lands are
subject to such easement as may be necessary for the same.2
On August 7, 1996, the RTC rendered a Decision, the decretal portion of which reads as
follows:
WHEREFORE, judgment is hereby rendered:
1. Denying plaintiffs’ [private respondents’] prayer for defendant [petitioner] National Power
Corporation to dismantle the underground tunnels constructed between the lands of plaintiffs
in Lots 1, 2, and 3 of Survey Plan FP (VII-5) 2278;
2. Ordering defendant to pay to plaintiffs the fair market value of said 70,000 square meters of
land covering Lots 1, 2, and 3 as described in Survey Plan FP (VII-5) 2278 less the area of
21,995 square meters at ₱1,000.00 per square meter or a total of ₱48,005,000.00 for the
remaining unpaid portion of 48,005 square meters; with 6% interest per annum from the filing
of this case until paid;
3. Ordering defendant to pay plaintiffs a reasonable monthly rental of ₱0.68 per square meter
of the total area of 48,005 square meters effective from its occupancy of the foregoing area in
1978 or a total of ₱7,050,974.40.
4. Ordering defendant to pay plaintiffs the sum of ₱200,000.00 as moral damages; and
5. Ordering defendant to pay the further sum of ₱200,000.00 as attorney’s fees and the costs.
SO ORDERED.3
On August 15, 1996, Ibrahim, joined by his co-heirs, filed an Urgent Motion for Execution of
Judgment Pending Appeal. On the other hand, NAPOCOR filed a Notice of Appeal by
registered mail on August 19, 1996. Thereafter, NAPOCOR filed a vigorous opposition to the
motion for execution of judgment pending appeal with a motion for reconsideration of the
Decision which it had received on August 9, 1996.
On August 26, 1996, NAPOCOR filed a Manifestation and Motion withdrawing its Notice of
Appeal purposely to give way to the hearing of its motion for reconsideration.
On August 28, 1996, the RTC issued an Order granting execution pending appeal and denying
NAPOCOR’s motion for reconsideration, which Order was received by NAPOCOR on
September 6, 1996.
On September 9, 1996, NAPOCOR filed its Notice of Appeal by registered mail which was
denied by the RTC on the ground of having been filed out of time. Meanwhile, the Decision of
the RTC was executed pending appeal and funds of NAPOCOR were garnished by
respondents Ibrahim and his co-heirs.
On October 4, 1996, a Petition for Relief from Judgment was filed by respondents Omar G.
Maruhom, Elias G. Maruhom, Bucay G. Maruhom, Mamod G. Maruhom, Farouk G. Maruhom,
Hidjara G. Maruhom, Potrisam G. Maruhom and Lumba G. Maruhom asserting as follows:
1) they did not file a motion to reconsider or appeal the decision within the reglementary period
of fifteen (15) days from receipt of judgment because they believed in good faith that the
decision was for damages and rentals and attorney’s fees only as prayed for in the complaint:
2) it was only on August 26, 1996 that they learned that the amounts awarded to the plaintiffs
represented not only rentals, damages and attorney’s fees but the greatest portion of which
was payment of just compensation which in effect would make the defendant NPC the owner
of the parcels of land involved in the case;
3) when they learned of the nature of the judgment, the period of appeal has already expired;
4) they were prevented by fraud, mistake, accident, or excusable negligence from taking legal
steps to protect and preserve their rights over their parcels of land in so far as the part of the
decision decreeing just compensation for petitioners’ properties;
5) they would never have agreed to the alienation of their property in favor of anybody,
considering the fact that the parcels of land involved in this case were among the valuable
properties they inherited from their dear father and they would rather see their land crumble to
dust than sell it to anybody.4
The RTC granted the petition and rendered a modified judgment dated September 8, 1997,
thus:
WHEREFORE, a modified judgment is hereby rendered:
1) Reducing the judgment award of plaintiffs for the fair market value of ₱48,005,000.00 by
9,526,000.00 or for a difference by ₱38,479,000.00 and by the further sum of ₱33,603,500.00
subject of the execution pending appeal leaving a difference of 4,878,500.00 which may be the
subject of execution upon the finality of this modified judgment with 6% interest per annum from
the filing of the case until paid.
2) Awarding the sum of ₱1,476,911.00 to herein petitioners Omar G. Maruhom, Elias G.
Maruhom, Bucay G. Maruhom, Mahmod G. Maruhom, Farouk G. Maruhom, Hidjara G.
Maruhom, Portrisam G. Maruhom and Lumba G. Maruhom as reasonable rental deductible
from the awarded sum of ₱7,050,974.40 pertaining to plaintiffs.
3) Ordering defendant embodied in the August 7, 1996 decision to pay plaintiffs the sum of
₱200,000.00 as moral damages; and further sum of ₱200,000.00 as attorney’s fees and costs.
SO ORDERED.5
Subsequently, both respondent Ibrahim and NAPOCOR appealed to the CA.
In the Decision dated June 8, 2005, the CA set aside the modified judgment and reinstated the
original Decision dated August 7, 1996, amending it further by deleting the award of moral
damages and reducing the amount of rentals and attorney’s fees, thus:
WHEREFORE, premises considered, herein Appeals are hereby partially GRANTED, the
Modified Judgment is ordered SET ASIDE and rendered of no force and effect and the original
Decision of the court a quo dated 7 August 1996 is hereby RESTORED with the
MODIFICATION that the award of moral damages is DELETED and the amounts of rentals
and attorney’s fees are REDUCED to ₱6,888,757.40 and ₱50,000.00, respectively.
In this connection, the Clerk of Court of RTC Lanao del Sur is hereby directed to reassess and
determine the additional filing fee that should be paid by Plaintiff-Appellant IBRAHIM taking
into consideration the total amount of damages sought in the complaint vis-à-vis the actual
amount of damages awarded by this Court. Such additional filing fee shall constitute a lien on
the judgment.
SO ORDERED.6
Hence, this petition ascribing the following errors to the CA:
(a) RESPONDENTS WERE NOT DENIED THE BENEFICIAL USE OF THEIR SUBJECT
PROPERTIES TO ENTITLE THEM TO JUST COMPENSATION BY WAY OF DAMAGES;
(b) ASSUMING THAT RESPONDENTS ARE ENTITLED TO JUST COMPENSATION BY WAY
OF DAMAGES, NO EVIDENCE WAS PRESENTED ANENT THE VALUATION OF
RESPONDENTS’ PROPERTY AT THE TIME OF ITS TAKING IN THE YEAR 1978 TO
JUSTIFY THE AWARD OF ONE THOUSAND SQUARE METERS (₱1000.00/SQ. M.) EVEN
AS PAYMENT OF BACK RENTALS IS ITSELF IMPROPER.
This case revolves around the propriety of paying just compensation to respondents, and, by
extension, the basis for computing the same. The threshold issue of whether respondents are
entitled to just compensation hinges upon who owns the sub-terrain area occupied by
petitioner.
Petitioner maintains that the sub-terrain portion where the underground tunnels were
constructed does not belong to respondents because, even conceding the fact that
respondents owned the property, their right to the subsoil of the same does not extend beyond
what is necessary to enable them to obtain all the utility and convenience that such property
can normally give. In any case, petitioner asserts that respondents were still able to use the
subject property even with the existence of the tunnels, citing as an example the fact that one
of the respondents, Omar G. Maruhom, had established his residence on a part of the property.
Petitioner concludes that the underground tunnels 115 meters below respondents’ property
could not have caused damage or prejudice to respondents and their claim to this effect was,
therefore, purely conjectural and speculative.7
The contention lacks merit.
Generally, in an appeal by certiorari under Rule 45 of the Rules of Court, the Court does not
pass upon questions of fact. Absent any showing that the trial and appellate courts gravely
abused their discretion, the Court will not examine the evidence introduced by the parties below
to determine if they correctly assessed and evaluated the evidence on record.8 The jurisdiction
of the Court in cases brought to it from the CA is limited to reviewing and revising the errors of
law imputed to it, its findings of fact being as a rule conclusive and binding on the Court.
In the present case, petitioner failed to point to any evidence demonstrating grave abuse of
discretion on the part of the CA or to any other circumstances which would call for the
application of the exceptions to the above rule. Consequently, the CA’s findings which upheld
those of the trial court that respondents owned and possessed the property and that its
substrata was possessed by petitioner since 1978 for the underground tunnels, cannot be
disturbed. Moreover, the Court sustains the finding of the lower courts that the sub-terrain
portion of the property similarly belongs to respondents. This conclusion is drawn from Article
437 of the Civil Code which provides:
ART. 437. The owner of a parcel of land is the owner of its surface and of everything under it,
and he can construct thereon any works or make any plantations and excavations which he
may deem proper, without detriment to servitudes and subject to special laws and ordinances.
He cannot complain of the reasonable requirements of aerial navigation.
Thus, the ownership of land extends to the surface as well as to the subsoil under it. In Republic
of the Philippines v. Court of Appeals,9 this principle was applied to show that rights over lands
are indivisible and, consequently, require a definitive and categorical classification, thus:
The Court of Appeals justified this by saying there is "no conflict of interest" between the owners
of the surface rights and the owners of the sub-surface rights. This is rather strange doctrine,
for it is a well-known principle that the owner of a piece of land has rights not only to its surface
but also to everything underneath and the airspace above it up to a reasonable height. Under
the aforesaid ruling, the land is classified as mineral underneath and agricultural on the surface,
subject to separate claims of title. This is also difficult to understand, especially in its practical
application.

Under the theory of the respondent court, the surface owner will be planting on the land while
the mining locator will be boring tunnels underneath. The farmer cannot dig a well because he
may interfere with the mining operations below and the miner cannot blast a tunnel lest he
destroy the crops above. How deep can the farmer, and how high can the miner go without
encroaching on each others rights? Where is the dividing line between the surface and the sub-
surface rights?
The Court feels that the rights over the land are indivisible and that the land itself cannot be
half agricultural and half mineral. The classification must be categorical; the land must be either
completely mineral or completely agricultural.
Registered landowners may even be ousted of ownership and possession of their properties
in the event the latter are reclassified as mineral lands because real properties are
characteristically indivisible. For the loss sustained by such owners, they are entitled to just
compensation under the Mining Laws or in appropriate expropriation proceedings.10
Moreover, petitioner’s argument that the landowners’ right extends to the sub-soil insofar as
necessary for their practical interests serves only to further weaken its case. The theory would
limit the right to the sub-soil upon the economic utility which such area offers to the surface
owners. Presumably, the landowners’ right extends to such height or depth where it is possible
for them to obtain some benefit or enjoyment, and it is extinguished beyond such limit as there
would be no more interest protected by law.11
In this regard, the trial court found that respondents could have dug upon their property
motorized deep wells but were prevented from doing so by the authorities precisely because
of the construction and existence of the tunnels underneath the surface of their property.
Respondents, therefore, still had a legal interest in the sub-terrain portion insofar as they could
have excavated the same for the construction of the deep well. The fact that they could not
was appreciated by the RTC as proof that the tunnels interfered with respondents’ enjoyment
of their property and deprived them of its full use and enjoyment, thus:
Has it deprived the plaintiffs of the use of their lands when from the evidence they have already
existing residential houses over said tunnels and it was not shown that the tunnels either
destroyed said houses or disturb[ed] the possession thereof by plaintiffs? From the evidence,
an affirmative answer seems to be in order. The plaintiffs and [their] co-heirs discovered [these]
big underground tunnels in 1992. This was confirmed by the defendant on November 13, 1992
by the Acting Assistant Project Manager, Agus 1 Hydro Electric Project (Exh. K). On September
16, 1992, Atty. Omar Maruhom (co-heir) requested the Marawi City Water District for permit to
construct a motorized deep well over Lot 3 for his residential house (Exh. Q). He was refused
the permit "because the construction of the deep well as (sic) the parcels of land will cause
danger to lives and property." He was informed that "beneath your lands are constructed the
Napocor underground tunnel in connection with Agua Hydroelectric plant" (Exh. Q-2). There in
fact exists ample evidence that this construction of the tunnel without the prior consent of
plaintiffs beneath the latter’s property endangered the lives and properties of said plaintiffs. It
has been proved indubitably that Marawi City lies in an area of local volcanic and tectonic
activity. Lake Lanao has been formed by extensive earth movements and is considered to be
a drowned basin of volcano/tectonic origin. In Marawi City, there are a number of former
volcanoes and an extensive amount of faulting. Some of these faults are still moving.
(Feasibility Report on Marawi City Water District by Kampsa-Kruger, Consulting Engineers,
Architects and Economists, Exh. R). Moreover, it has been shown that the underground tunnels
[have] deprived the plaintiffs of the lawful use of the land and considerably reduced its value.
On March 6, 1995, plaintiffs applied for a two-million peso loan with the Amanah Islamic Bank
for the expansion of the operation of the Ameer Construction and Integrated Services to be
secured by said land (Exh. N), but the application was disapproved by the bank in its letter of
April 25, 1995 (Exh. O) stating that:
"Apropos to this, we regret to inform you that we cannot consider your loan application due to
the following reasons, to wit:
That per my actual ocular inspection and verification, subject property offered as collateral has
an existing underground tunnel by the NPC for the Agus I Project, which tunnel is traversing
underneath your property, hence, an encumbrance. As a matter of bank policy, property with
an existing encumbrance cannot be considered neither accepted as collateral for a loan."
All the foregoing evidence and findings convince this Court that preponderantly plaintiffs have
established the condemnation of their land covering an area of 48,005 sq. meters located at
Saduc, Marawi City by the defendant National Power Corporation without even the benefit of
expropriation proceedings or the payment of any just compensation and/or reasonable monthly
rental since 1978.12
In the past, the Court has held that if the government takes property without expropriation and
devotes the property to public use, after many years, the property owner may demand payment
of just compensation in the event restoration of possession is neither convenient nor
feasible.13 This is in accordance with the principle that persons shall not be deprived of their
property except by competent authority and for public use and always upon payment of just
compensation.14
Petitioner contends that the underground tunnels in this case constitute an easement upon the
property of respondents which does not involve any loss of title or possession. The manner in
which the easement was created by petitioner, however, violates the due process rights of
respondents as it was without notice and indemnity to them and did not go through proper
expropriation proceedings. Petitioner could have, at any time, validly exercised the power of
eminent domain to acquire the easement over respondents’ property as this power
encompasses not only the taking or appropriation of title to and possession of the expropriated
property but likewise covers even the imposition of a mere burden upon the owner of the
condemned property.15 Significantly, though, landowners cannot be deprived of their right over
their land until expropriation proceedings are instituted in court. The court must then see to it
that the taking is for public use, that there is payment of just compensation and that there is
due process of law.16
In disregarding this procedure and failing to recognize respondents’ ownership of the sub-
terrain portion, petitioner took a risk and exposed itself to greater liability with the passage of
time. It must be emphasized that the acquisition of the easement is not without expense. The
underground tunnels impose limitations on respondents’ use of the property for an indefinite
period and deprive them of its ordinary use. Based upon the foregoing, respondents are clearly
entitled to the payment of just compensation.17 Notwithstanding the fact that petitioner only
occupies the sub-terrain portion, it is liable to pay not merely an easement fee but rather the
full compensation for land. This is so because in this case, the nature of the easement
practically deprives the owners of its normal beneficial use. Respondents, as the owners of the
property thus expropriated, are entitled to a just compensation which should be neither more
nor less, whenever it is possible to make the assessment, than the money equivalent of said
property.18
The entitlement of respondents to just compensation having been settled, the issue now is on
the manner of computing the same. In this regard, petitioner claims that the basis for the
computation of the just compensation should be the value of the property at the time it was
taken in 1978. Petitioner also impugns the reliance made by the CA upon National Power
Corporation v. Court of Appeals and Macapanton Mangondato19 as the basis for computing
the amount of just compensation in this action. The CA found that "the award of damages is
not excessive because the ₱1000 per square meter as the fair market value was sustained in
a case involving a lot adjoining the property in question which case involved an expropriation
by [petitioner] of portion of Lot 1 of the subdivision plan (LRC) PSD 116159 which is adjacent
to Lots 2 and 3 of the same subdivision plan which is the subject of the instant controversy."20
Just compensation has been understood to be the just and complete equivalent of the loss21
and is ordinarily determined by referring to the value of the land and its character at the time it
was taken by the expropriating authority.22 There is a "taking" in this sense when the owners
are actually deprived or dispossessed of their property, where there is a practical destruction
or a material impairment of the value of their property, or when they are deprived of the ordinary
use thereof. There is a "taking" in this context when the expropriator enters private property not
only for a momentary period but for more permanent duration, for the purpose of devoting the
property to a public use in such a manner as to oust the owner and deprive him of all beneficial
enjoyment thereof.23 Moreover, "taking" of the property for purposes of eminent domain entails
that the entry into the property must be under warrant or color of legal authority.24
Under the factual backdrop of this case, the last element of taking mentioned, i.e., that the entry
into the property is under warrant or color of legal authority, is patently lacking. Petitioner
justified its nonpayment of the indemnity due respondents upon its mistaken belief that the
property formed part of the public dominion.
This situation is on all fours with that in the Mangondato case. NAPOCOR in that case took the
property of therein respondents in 1979, using it to build its Aqua I Hydroelectric Plant Project,
without paying any compensation, allegedly under the mistaken belief that it was public land. It
was only in 1990, after more than a decade of beneficial use, that NAPOCOR recognized
therein respondents’ ownership and negotiated for the voluntary purchase of the property.
In Mangondato, this Court held:
The First Issue: Date of Taking or Date of Suit?
The general rule in determining "just compensation" in eminent domain is the value of the
property as of the date of the filing of the complaint, as follows:
"Sec. 4. Order of Condemnation. When such a motion is overruled or when any party fails to
defend as required by this rule, the court may enter an order of condemnation declaring that
the plaintiff has a lawful right to take the property sought to be condemned, for the public use
or purpose described in the complaint, upon the payment of just compensation to be
determined as of the date of the filing of the complaint. x x x" (Italics supplied).
Normally, the time of the taking coincides with the filing of the complaint for expropriation.
Hence, many ruling of this Court have equated just compensation with the value of the property
as of the time of filing of the complaint consistent with the above provision of the Rules. So too,
where the institution of the action precedes entry to the property, the just compensation is to
be ascertained as of the time of filing of the complaint.
The general rule, however, admits of an exception: where this Court fixed the value of the
property as of the date it was taken and not the date of the commencement of the expropriation
proceedings.
In the old case of Provincial Government of Rizal vs. Caro de Araullo, the Court ruled that "x x
x the owners of the land have no right to recover damages for this unearned increment resulting
from the construction of the public improvement (lengthening of Taft Avenue from Manila to
Pasay) from which the land was taken. To permit them to do so would be to allow them to
recover more than the value of the land at the time it was taken, which is the true measure of
the damages, or just compensation, and would discourage the construction of important public
improvements."
In subsequent cases, the Court, following the above doctrine, invariably held that the time of
taking is the critical date in determining lawful or just compensation. Justifying this stance, Mr.
Justice (later Chief Justice) Enrique Fernando, speaking for the Court in Municipality of La
Carlota vs. The Spouses Felicidad Baltazar and Vicente Gan, said, "x x x the owner as is the
constitutional intent, is paid what he is entitled to according to the value of the property so
devoted to public use as of the date of taking. From that time, he had been deprived thereof.
He had no choice but to submit. He is not, however, to be despoiled of such a right. No less
than the fundamental law guarantees just compensation. It would be injustice to him certainly
if from such a period, he could not recover the value of what was lost. There could be on the
other hand, injustice to the expropriator if by a delay in the collection, the increment in price
would accrue to the owner. The doctrine to which this Court has been committed is intended
precisely to avoid either contingency fraught with unfairness."
Simply stated, the exception finds the application where the owner would be given undue
incremental advantages arising from the use to which the government devotes the property
expropriated -- as for instance, the extension of a main thoroughfare as was in the case in Caro
de Araullo. In the instant case, however, it is difficult to conceive of how there could have been
an extra-ordinary increase in the value of the owner’s land arising from the expropriation, as
indeed the records do not show any evidence that the valuation of P1,000.00 reached in 1992
was due to increments directly caused by petitioner’s use of the land. Since the petitioner is
claiming an exception to Rule 67, Section 4, it has the burden in proving its claim that its
occupancy and use -- not ordinary inflation and increase in land values -- was the direct cause
of the increase in valuation from 1978 to 1992.
Side Issue: When is there "Taking" of Property?
But there is yet another cogent reason why this petition should be denied and why the
respondent Court should be sustained. An examination of the undisputed factual environment
would show that the "taking" was not really made in 1978.
This Court has defined the elements of "taking" as the main ingredient in the exercise of power
of eminent domain, in the following words:
"A number of circumstances must be present in "taking" of property for purposes of eminent
domain: (1) the expropriator must enter a private property; (2) the entrance into private property
must be for more than a momentary period; (3) the entry into the property should be under
warrant or color of legal authority; (4) the property must be devoted to a public use or otherwise
informally appropriated or injuriously affected; and (5) the utilization of the property for public
use must be in such a way to oust the owner and deprive him of all beneficial enjoyment of the
property."(Italics supplied)
In this case, the petitioner’s entrance in 1978 was without intent to expropriate or was not made
under warrant or color of legal authority, for it believed the property was public land covered by
Proclamation No. 1354. When the private respondent raised his claim of ownership sometime
in 1979, the petitioner flatly refused the claim for compensation, nakedly insisted that the
property was public land and wrongly justified its possession by alleging it had already paid
"financial assistance" to Marawi City in exchange for the rights over the property. Only in 1990,
after more than a decade of beneficial use, did the petitioner recognize private respondent’s
ownership and negotiate for the voluntary purchase of the property. A Deed of Sale with
provisional payment and subject to negotiations for the correct price was then executed.
Clearly, this is not the intent nor the expropriation contemplated by law. This is a simple attempt
at a voluntary purchase and sale. Obviously, the petitioner neglected and/or refused to exercise
the power of eminent domain.
Only in 1992, after the private respondent sued to recover possession and petitioner filed its
Complaint to expropriate, did petitioner manifest its intention to exercise the power of eminent
domain. Thus the respondent Court correctly held:
"If We decree that the fair market value of the land be determined as of 1978, then We would
be sanctioning a deceptive scheme whereby NAPOCOR, for any reason other than for eminent
domain would occupy another’s property and when later pressed for payment, first negotiate
for a low price and then conveniently expropriate the property when the land owner refuses to
accept its offer claiming that the taking of the property for the purpose of the eminent domain
should be reckoned as of the date when it started to occupy the property and that the value of
the property should be computed as of the date of the taking despite the increase in the
meantime in the value of the property."
In Noble vs. City of Manila, the City entered into a lease-purchase agreement of a building
constructed by the petitioner’s predecessor-in-interest in accordance with the specifications of
the former. The Court held that being bound by the said contract, the City could not expropriate
the building. Expropriation could be resorted to "only when it is made necessary by the
opposition of the owner to the sale or by the lack of any agreement as to the price." Said the
Court:
"The contract, therefore, in so far as it refers to the purchase of the building, as we have
interpreted it, is in force, not having been revoked by the parties or by judicial decision. This
being the case, the city being bound to buy the building at an agreed price, under a valid and
subsisting contract, and the plaintiff being agreeable to its sale, the expropriation thereof, as
sought by the defendant, is baseless. Expropriation lies only when it is made necessary by the
opposition of the owner to the sale or by the lack of any agreement as to the price. There being
in the present case a valid and subsisting contract, between the owner of the building and the
city, for the purchase thereof at an agreed price, there is no reason for the expropriation."
(Italics supplied)
In the instant case, petitioner effectively repudiated the deed of sale it entered into with the
private respondent when it passed Resolution No. 92-121 on May 25, 1992 authorizing its
president to negotiate, inter alia, that payment "shall be effective only after Agus I HE project
has been placed in operation." It was only then that petitioner’s intent to expropriate became
manifest as private respondent disagreed and, barely a month, filed suit.25
In the present case, to allow petitioner to use the date it constructed the tunnels as the date of
valuation would be grossly unfair. First, it did not enter the land under warrant or color of legal
authority or with intent to expropriate the same. In fact, it did not bother to notify the owners
and wrongly assumed it had the right to dig those tunnels under their property. Secondly, the
"improvements" introduced by petitioner, namely, the tunnels, in no way contributed to an
increase in the value of the land. The trial court, therefore, as affirmed by the CA, rightly
computed the valuation of the property as of 1992, when respondents discovered the
construction of the huge underground tunnels beneath their lands and petitioner confirmed the
same and started negotiations for their purchase but no agreement could be reached.26
As to the amount of the valuation, the RTC and the CA both used as basis the value of the
adjacent property, Lot 1 (the property involved herein being Lots 2 and 3 of the same
subdivision plan), which was valued at ₱1,000 per sq. meter as of 1990, as sustained by this
Court in Mangondato, thus:
The Second Issue: Valuation
We now come to the issue of valuation.
The fair market value as held by the respondent Court, is the amount of ₱1,000.00 per square
meter. In an expropriation case where the principal issue is the determination of just
compensation, as is the case here, a trial before Commissioners is indispensable to allow the
parties to present evidence on the issue of just compensation. Inasmuch as the determination
of just compensation in eminent domain cases is a judicial function and factual findings of the
Court of Appeals are conclusive on the parties and reviewable only when the case falls within
the recognized exceptions, which is not the situation obtaining in this petition, we see no reason
to disturb the factual findings as to valuation of the subject property. As can be gleaned from
the records, the court-and-the-parties-appointed commissioners did not abuse their authority
in evaluating the evidence submitted to them nor misappreciate the clear preponderance of
evidence. The amount fixed and agreed to by the respondent appellate Court is not grossly
exorbitant. To quote:
"Commissioner Ali comes from the Office of the Register of Deeds who may well be considered
an expert, with a general knowledge of the appraisal of real estate and the prevailing prices of
land in the vicinity of the land in question so that his opinion on the valuation of the property
cannot be lightly brushed aside.
"The prevailing market value of the land is only one of the determinants used by the
commissioners’ report the other being as herein shown:
xxx
xxx
"Commissioner Doromal’s report, recommending P300.00 per square meter, differs from the 2
commissioners only because his report was based on the valuation as of 1978 by the City
Appraisal Committee as clarified by the latter’s chairman in response to NAPOCOR’s general
counsel’s query."
In sum, we agree with the Court of Appeals that petitioner has failed to show why it should be
granted an exemption from the general rule in determining just compensation provided under
Section 4 of Rule 67. On the contrary, private respondent has convinced us that, indeed, such
general rule should in fact be observed in this case.27
Petitioner has not shown any error on the part of the CA in reaching such a valuation.
Furthermore, these are factual matters that are not within the ambit of the present review.
WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals in C.A.-G.R.
CV No. 57792 dated June 8, 2005 is AFFIRMED.
No costs.
SO ORDERED.
G.R. No. L-17482 March 31, 1966
GENOVEVA R. JABONETE, ET AL., plaintiffs,
vs.
JULIANA MONTEVERDE, ET AL., defendants,
ANTONIO LEGASPI, respondent-appellant,
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner-appellee,
MRS. LUZ ARCILLA, petitioner-intervenor-appellee.
Zuño and Mojica for the respondents-appellants.
Jesus Avanceña for the plaintiffs.
REGALA, J.:
This is an appeal from an order of the Court of First Instance of Davao, dated March 11, 1960,
finding the respondent-appellant, Antonio Legaspi, guilty of contempt of court, and imposing
upon him a fine of P100.
On March 11, 1954, the Court of First Instance of Davao, in view of its finding in Case No. 824,
entitled Jabonete vs. Monteverde, et al., that Antonio Legaspi acquired the lot in question with
the knowledge that a "gravamen" or easement of right of way existed thereon, promulgated a
decision the dispositive portion of which reads:
Ordena al demandado Antonio Legaspi la demolicion de la parte del corral construido a lo largo
de su terreno que impide a lote demandantes tener acceso con la vereda que communica con
la carretera principal, Tomas Claudio.
Declara que los demandantes tienen derecho el uso de la vereda (Exh. A-3), de 3 metros de
ancho, unico paso que disponen para communicarse con la Calle Tomas Claudio, para el paso
de sus jeeps, y los vehiculos, reparados que entran y salen del taller de reparacion de aquellos.
The respondent-appellant received a copy of the decision on May 12, 1954. Two days later,
May 14, 1954 he filed his notice of appeal therefrom. On May 21, 1954 however, upon a
previous motion of the plaintiffs, the lower court issued an order granting discretionary
execution of the said decision. In view of this last mentioned order, the plaintiffs immediately
proceeded to the premises in question and opened in the fence of the defendant Antonio
Legaspi a sufficient opening for the passage of men and vehicles. Even then, however, the
defendant filed with the court below on that very same day, May 21, 1954, a motion for the
reconsideration of the order granting discretionary execution. Thereafter, and upon the lower
court's suggestion, the parties entered into an amicable agreement which was later embodied
in an order or "auto" dated May 24, 1954, to wit:
A raiz de la mocion del demandado pidiendo antre otras cosas, la reconsideracion de la orden
de ejecucion de la decision dictada en esta causa, el 22 del Mayo de 1954, el Juez que preside
esta sala se constituyo para una inspeccion ocular en el lugar en conflicto.
Durante la inspeccion ocular, los demandantes y demandado, Antonio Legaspi, llegaron a un
acuerdo:
1. Los demandantes no instalaran en su terreno su taller de reparacion de vehiculos de motor.
2. Los demandantes pueden construir su garaje dentro de su terreno para su jeep (AC), pero
no los tendran parados en la calle privada del demandados construida por este en su terreno
a lo largo del terreno de los demandantes;
3. Los demandantes contribuiran a prorata con el demandado los gastos de reparacion de la
calle privada construida por el referido demandado en su terreno a lo largo del terreno de los
demandantes.1äwphï1.ñët
4. El demandado, Antonio Legaspi, permitira el uso y paso en la calle privada construida por
el en su terreno a lo largo del terreno de los demandantes, a estos, su familia, sus amigos,
chofers, servidumbre y de sus jeeps.
5. Para los fines del uso de la calle, el demandado permitira a los demandantes, frente de la
casa de estos, abrir una puerta de 4 metros de ancho en el corral construido por el demandado
que separa la calle privada y el terreno de los demandantes, a su (demandantes) costa; sus
hojas tendran por dentro, que los demandantes tendran cerradas para evitar que los niños,
hijos de los inquilinos del demandado tengan acceso a los jeeps de los demandantes, cuyo
garaje tendran dentro de su (demandantes) terreno.
El Juzgado ordena a las partes litigantes complan estrictamente con lo estipulado; de los
contrario, los mismos estaran sujetos a las ordenes de este Juzgado.
As a result of the above agreement and Order of May 24, 1954, the defendant abandoned the
prosecution of his appeal. At the same time, both parties complied with its terms until the
plaintiffs, unable to continue with their repair shop, transferred to another place in December
1959 whereupon the defendant reconstructed his fence and its footing, closing thereby the
opening previously made by the plaintiffs.
In the course of time, the plaintiffs' lot was foreclosed by the Development Bank of the
Philippines (DBP) which, later still, conveyed it under a conditional sale to Mrs. Luz Arcilla. On
her acquisition of the said lot, Mrs. Arcilla demanded of the defendant the re-opening of the
fence in question as it was her plan to construct her house in the said lot. When the defendant
refused, the Development Bank filed with the lower court a petition to hold the said defendant
in contempt. To this petition, Mrs. Luz Arcilla later intervened and was so allowed by the lower
court. The Development Bank of the Philippines and Mrs. Luz Arcilla contended that the refusal
of the defendant to cause or allow the making of an opening in his fence was a defiance of the
said court's decision of March 11, 1954 and was, therefore, contemptuous. After due hearing,
the lower court sustained the petitioners and found the defendant guilty of contempt with orders
"to pay a fine of One Hundred Pesos (P100.00) and to open the vereda or alley leading to the
lot owned by the Development Bank of the Philippines and conveyed to Mrs. Luz S. Arcilla
under a conditional deed of sale, otherwise he should be imprisoned until he does so." Thus,
the instant appeal.
The respondent-appellant maintains that the lower court erred in finding him guilty of contempt
because:
1. The decision of March 11, 1954 was novated by the order of May 24, 1954. Consequently,
he could not have violated the former decree since with its novation it ceased to have any legal
effect.
2. Even assuming that the said decision was not novated by the subsequent order of May 24,
1954, still he could not be deemed to have violated the said decision because the same never
became final and executory. The respondent-appellant argued that since the decision of March
11, 1954 ordered the opening of a right of way in his property without providing for this
corresponding compensation to him, contrary to Article 649 of the Civil Code,1 there was in the
said decision "a void which ought to be filled or to be done in order to completely dispose of
the case. It was not clear, specific and definitive," and consequently, a judgment that could not
have acquired finality.
3. The right to file contempt proceedings against him, with respect to the decrees contained in
the decision of March 11, 1954, has prescribed. The respondent-appellant conceded that there
is no prescriptive period for the institution of contempt proceedings. However, he contended
that inasmuch as contempt under Rule 64 of the Rules of Court is punishable by arresto mayor,
it should prescribe in five years just as crimes for which the said penalty is imposed prescribe,
under the Penal Code, in five years.
Without passing on the merits or demerits of the foregoing arguments, this Court believes that
the order finding the respondent-appellant guilty of contempt should be reversed. It is clear that
the order of May 24, 1954 superseded and was fully intended by the lower court to modify or
stand in substitution of the decision of March 11, 1954. More than the expression of the parties
amicable agreement on the dispute, the said order was the lower court's resolution of the
respondent-appellant's motion for reconsideration of the decision of March 11, 1954. In the
determination, therefore, of the said appellant's obligation relative to the easement in question,
the latter and not the decision of March 11, 1954 is the proper point in reference.
Under the aforesaid order of May 24, 1954, the easement awarded or secured by the lower
court to the plaintiffs was strictly a personal one. The right of way granted was expressly limited
to the latter and their "family, friends, drivers, servants and jeeps." In the very language of the
agreement the following appears:
El demandado Antonio Legaspi, permitira el uso y paso en la calle privada construida por el
en su terreno a lo largo del terreno de los demandantes, a estos, su familia, sus amigos,
chofers, servidumbre y de sus jeeps.
The servitude established was clearly for the benefit alone of the plaintiffs and the persons
above enumerated and it is clear that the lower court, as well as the parties addressed by the
said order, did not intend the same to pass on to the plaintiffs'
successors-in-interest. In other words, the right acquired by the original plaintiffs was a
personal servitude under Article 614 of the Civil Code, and not a predial servitude that inures
to the benefit of whoever owns the dominant estate.
In resisting the extension of the aforementioned easement to the latter, the plaintiffs'
successors-in-interest, the respondent-appellant, therefore, was not defying the decision of
March 11, 1954 which was then no longer subsisting, nor the order of May 24, 1954 since the
said successors-in-interest had no right thereunder.
Another evidence that the servitude in question was personal to the plaintiffs is the fact that the
same was granted to the latter without any compensation to the respondent-appellant.
Wherefore, the order of the lower court dated March 11, 1960 finding the respondent-appellant
guilty of contempt is hereby reversed, without pronouncement as to costs.
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Makalintal, Bengzon, J.P., Zaldivar and
Sanchez, JJ., concur.
Bautista Angelo and Dizon, JJ., took no part.
G.R. No. 136996 December 14, 2001
EDILBERTO ALCANTARA, FLORENCIO VILLARMIA, POLICARPIO OBREGON, +
RICARDO ROBLE, ESCOLASTICA ONDONG, ESTEBAN RALLOS, HENRY SESBINO,
SERGIO SESBINO, MANUEL CENTENO, + RENATO CRUZ, MARCELINO CENEZA,
BUENAVENTURA ONDONG, and BENJAMIN HALASAN, petitioners,
vs.
CORNELIO B. RETA, JR., respondent.
PARDO, J.:
The Case
In this petition for review,1 petitioners seek to review the decision2 of the Court of Appeals
affirming the decision3 of the Regional Trial Court, Davao City, Branch 14, dismissing
petitioners' complaint for the exercise of the right of first refusal under Presidential Decree No.
1517, injunction with preliminary injunction, attorney's fees and nullity of amicable settlement.
The Facts
Edilberto Alcantara, Florencio Villarmia, Policarpio Obregon, Ricardo Roble, Escolastica
Ondong, Esteban Rallos, Henry Sesbino, Sergio Sesbino, Manuel Centeno, Renato Cruz,
Marcelo Ceneza, Buenaventura Ondong and Benjamin Halasan, filed with the Regional Trial
Court, Davao City, Branch 14, a complaint4 against Cornelio B. Reta, Jr. for the exercise of the
right of first refusal under Presidential Decree No. 1517, injunction with preliminary injunction,
attorney's fees and nullity of amicable settlement.
The plaintiffs claimed that they were tenants or lessees of the land located in Barangay Sasa,
Davao City, covered by Transfer Certificate of Title No. T-72594, owned by Reta; that the land
has been converted by Reta into a commercial center; and that Reta is threatening to eject
them from the land. They assert that they have the right of first refusal to purchase the land in
accordance with Section 3(g) of Presidential Decree No. 1517 since they are legitimate tenants
or lessees thereof.
They also claimed that the amicable settlement executed between Reta and Ricardo Roble
was void ab initio for being violative of Presidential Decree No. 1517.
On the other hand, Reta claimed that the land is beyond the ambit of Presidential Decree No.
1517 since it has not been proclaimed as an Urban Land Reform Zone; that the applicable law
is Batas Pambansa Blg. 25 for failure of the plaintiffs to pay the rentals for the use of the land;
and that the amicable settlement between him and Ricardo Roble was translated to the latter
and fully explained in his own dialect.
On March 8, 1994, the trial court rendered a decision dismissing the complaint and ordering
the plaintiffs to pay Reta certain sums representing rentals that had remained unpaid.5
On April 6, 1994, plaintiffs appealed the decision to the Court of Appeals.6
On December 9, 1998, the Court of Appeals promulgated a decision 7 affirming in toto the
decision of the trial court.
Hence, this appeal.8
The Issue
The issue is whether petitioners have the right of first refusal under Presidential Decree No.
1517.
The Court's Ruling
The petition is without merit.
The area involved has not been proclaimed an Urban Land Reform Zone (ULRZ). In fact,
petitioners filed a petition with the National Housing Authority requesting that the land they were
occupying be declared as an ULRZ. On May 27, 1986, the request was referred to Mr. Jose L.
Atienza, General Manager, National Housing Authority, for appropriate action.9 The request
was further referred to acting mayor Zafiro Respicio, Davao City, as per 2nd Indorsement dated
July 1, 1986.10 Clearly, the request to have the land proclaimed as an ULRZ would not be
necessary if the property was an ULRZ.

Presidential Decree No. 1517, otherwise known as "The Urban Land Reform Act," pertains to
areas proclaimed as Urban Land Reform Zones.11 Consequently, petitioners cannot claim any
right under the said law since the land involved is not an ULRZ.
To be able to qualify and avail oneself of the rights and privileges granted by the said decree,
one must be: (1) a legitimate tenant of the land for ten (10) years or more; (2) must have built
his home on the land by contract; and, (3) has resided continuously for the last ten (10) years.
Obviously, those who do not fall within the said category cannot be considered "legitimate
tenants" and, therefore, not entitled to the right of first refusal to purchase the property should
the owner of the land decide to sell the same at a reasonable price within a reasonable time.12
Respondent Reta denies that he has lease agreements with petitioners Edilberto Alcantara and
Ricardo Roble.13 Edilberto Alcantara, on the other hand, failed to present proof of a lease
agreement other than his testimony in court that he bought the house that he is occupying from
his father-in-law.14
first refusal, the situation which would allow the exercise of that right, that is, the sale or
intended sale of the land, has not happened. P.D. No. 1517 applies where the owner of the
property intends to sell it to a third party.20
The Fallo
WHEREFORE, the Court DENIES the petition. The Court AFFIRMS the decision of the Court
of Appeals21 and the resolution denying reconsideration thereof.
No costs.
SO ORDERED.
Davide, Jr., C.J., Kapunan, and Ynares-Santiago, JJ., concur.
Puno, J., on official leave.

Respondent Reta allowed petitioner Ricardo Roble to use sixty-two (62) coconut trees for P186 G.R. No. 134692 August 1, 2000
from where he gathered tuba. This arrangement would show that it is a usufruct and not a
lease. Usufruct gives a right to enjoy the property of another with the obligation of preserving ELISEO FAJARDO, JR., and MARISSA FAJARDO, petitioners,
its form and substance, unless the title constituting it or the law otherwise provides.15 vs.
FREEDOM TO BUILD, INC., respondent.
Petitioner Roble was allowed to construct his house on the land because it would facilitate his
gathering of tuba. This would be in the nature of a personal easement under Article 614 of the DECISION
Civil Code.16
VITUG, J.:
Whether the amicable settlement17 is valid or not, the conclusion would still be the same since
the agreement was one of usufruct and not of lease. Thus, petitioner Roble is not a legitimate Freedom To Build, Incorporated, an owner-developer and seller of low-cost housing, sold to
tenant as defined by Presidential Decree No. 1517. petitioner-spouses, a house and lot designated Lot No. 33, Block 14, of the De la Costa Homes
in Barangka, Marikina, Metro Manila. The Contract to Sell executed between the parties,
As to the other petitioners, respondent Reta admitted that he had verbal agreements with them. contained a Restrictive Covenant providing certain prohibitions, to wit:1
This notwithstanding, they are still not the legitimate tenants contemplated by Presidential
Decree No. 1517, who can exercise the right of first refusal. "Easements. For the good of the entire community, the homeowner must observe a two-meter
easement in front. No structure of any kind (store, garage, bodega, etc.) may be built on the
A contract has been defined as "a meeting of the minds between two persons whereby one front easement.
binds himself, with respect to the other, to give something or to render some service.''18
xxx xxx xxx
Clearly, from the moment respondent Reta demanded that the petitioners vacate the premises,
the verbal lease agreements, which were on a monthly basis since rentals were paid "Upward expansion. A second storey is not prohibited. But the second storey expansion must
monthly,19 ceased to exist as there was termination of the lease. be placed above the back portion of the house and should not extend forward beyond the apex
of the original building.
Indeed, none of the petitioners is qualified to exercise the right of first refusal under P.D. No.
1517. xxx xxx xxx

Another factor which militates against petitioners' claim is the fact that there is no intention on "Front expansion: 2nd Storey: No unit may be extended in the front beyond the line as designed
the part of respondent Reta to sell the property. Hence, even if the petitioners had the right of and implemented by the developer in the 60 sq. m. unit. In other words, the 2nd floor expansion,
in front, is 6 meters back from the front property line and 4 meters back from the front wall of
the house, just as provided in the 60 sq. m. units."2
The above restrictions were also contained in Transfer Certificate of Title No. N-115384
covering the lot issued in the name of petitioner-spouses.
The controversy arose when petitioners, despite repeated warnings from respondent, extended
the roof of their house to the property line and expanded the second floor of their house to a
point directly above the original front wall.3 Respondent filed before the Regional Trial Court,
National Capital Judicial Region, Branch 261, Pasig City, an action to demolish the
unauthorized structures.
After trial, judgment was rendered against petitioners; thus:
"WHEREFORE, premises considered, defendant spouses Eliseo B. Fajardo, Jr., and Marissa
F. Fajardo are hereby directed to immediately demolish and remove the extension of their
expanded housing unit that exceeds the limitations imposed by the Restrictive Covenant,
otherwise the Branch Sheriff of this Court shall execute this decision at the expense of the
defendants.
"As to damages and attorney's fees, it appearing from the records of this case that no evidence
to sustain the same was adduced by either of the parties, the Court deems it proper not to
award any.
"SO ORDERED."4
On appeal to it, the Court of Appeals affirmed the decision of the trial court.
In their petition for review to this Court, the spouses contest the judgment of the courts below.
Adjacent owners reportedly have no objection to the construction, and have even expressed
interest in undertaking a similar expansion in their respective residences. Moreover, the
couple's two children, a son and a daughter, might soon get married and then share, with their
families, living quarters with petitioners. The latter also assail the personality of private
respondent to question the construction which have effectively relinquished its ownership, right
or interest over the subdivision upon the execution of the Deed of Absolute Sale in favor of the
individual homeowners. Per the contract between Freedom to Build Incorporated and the De
la Costa Low Income Project Homeowners' Association (hereinafter homeowners' association),
petitioners aver, the enforcement of the prohibitions contained in the "Restrictive Covenant"
originally residing on respondent is now lodged in the homeowners' association. Petitioners
maintain that it is incumbent upon the homeowners' association, not on respondent, to enforce
compliance with the provisions of the covenant.
A perusal of the provisions of the covenant would show that the restrictions therein imposed
were intended -
"For the protection and benefit of the De La Costa Low Income Housing Project, and of all the
persons who may now, or hereafter become owners of any part of the project, and as part of
the consideration for the conveyance of the housing unit, these restrictions are promulgated in
order that; the intents and purposes for which the project was designed shall be upheld; to wit:
subsequent duly approved sale and assignments of housing units shall be made only to low
income families; a certain level of privacy shall be observed; a community spirit shall be
fostered; and an undisturbed possession and occupancy at the homeowners shall be
maintained."5
Restrictive covenants are not, strictly speaking, synonymous with easements. While it may be
correct to state that restrictive covenants on the use of land or the location or character of
buildings or other structures thereon may broadly be said to create easements or rights, it can
also be contended that such covenants, being limitations on the manner in which one may use
his own property,6 do not result in true easements,7 but a case of servitudes (burden),
sometimes characterized to be negative easements or reciprocal negative easements.
Negative easement is the most common easement created by covenant or agreement whose
effect is to preclude the owner of the land from doing an act, which, if no easement existed, he
would be entitled to do.8
Courts which generally view restrictive covenants with disfavor for being a restriction on the
use of one's property, have, nevertheless, sustained them9 where the covenants are
reasonable,10 not contrary to public policy,11 or to law,12 and not in restraint of trade.13
Subject to these limitations, courts enforce restrictions to the same extent that will lend judicial
sanction to any other valid contractual relationship.14 In general, frontline restrictions on
constructions have been held to be valid stipulations.15
The provisions in a restrictive covenant prescribing the type of the building to be erected are
crafted not solely for the purpose of creating easements, generally of light and view, nor as a
restriction as to the type of construction,16 but may also be aimed as a check on the
subsequent uses of the building17 conformably with what the developer originally might have
intended the stipulations to be. In its Memorandum, respondent states in arguing for the validity
of the restrictive covenant that the -
"x x x restrictions are not without specific purpose. In a low cost-socialized housing, it is of
public knowledge that owners-developers are constrained to build as many number of houses
on a limited land area precisely to accommodate marginalized lot buyers, providing as much
as possible the safety, aesthetic and decent living condition by controlling overcrowding. Such
project has been designed to accommodate at least 100 families per hectare."18
There appears to be no cogent reasons for not upholding restrictive covenants aimed to
promote aesthetics, health, and privacy or to prevent overcrowding.
Viewed accordingly, the statement of petitioners that their immediate neighbors have not
opposed the construction is unavailing to their cause, the subject restrictive covenant not being
intended for the benefit of adjacent owners but to prescribe the uses of the building, i.e., to
ensure, among other things, that the structures built on De la Costa Homes Subdivision would
prevent overcrowding and promote privacy among subdivision dwellers. The argument then of
petitioners that expansion is necessary in order to accommodate the individual families of their
two children must fail for like reason. Nor can petitioners claim good faith; the restrictive
covenants are explicitly written in the Contract To Sell and annotated at the back of the Transfer
Certificate of Title.
Petitioners raise the issue of the personality of respondent to enforce the provisions of the
covenant.1âwphi1 Broadly speaking, a suit for equitable enforcement of a restrictive covenant
can only be made by one for whose benefit it is intended.19 It is not thus normally enforceable
by one who has no right nor interest in the land for the benefit of which the restriction has been
imposed.20 Thus, a developer of a subdivision can enforce restrictions, even as against remote
grantees of lots, only if he retains part of the land.21 There would have been merit in the
argument of petitioners - that respondent, having relinquished ownership of the subdivision to
the homeowners, is precluded from claiming any right or interest on the same property - had
not the homeowners' association, confirmed by its board of directors, allowed respondent to
enforce the provisions of the restrictive covenant.
Finally, petitioners argue that for lack of a specific provision, prescribing the penalty of
demolition in the "Restrictive Covenant" in the event of a breach thereof, the prayer of
respondent to demolish the structure should fail. This argument has no merit; Article 1168 of
the New Civil Code states:
"When the obligation consists in not doing and the obligor does what has been forbidden him,
it shall be undone at his expense."
This Court is not unaware of its ruling in Ayala Corporation vs. Ray Burton Development
Corporation,22 which has merely adjudged the payment of damages in lieu of demolition. In
the aforementioned case, however, the elaborate mathematical formula for the determination
of compensatory damages which takes into account the current construction cost index during
the immediately preceding 5 years based on the weighted average of wholesale price and
wage indices of the National Census and Statistics Office and the Bureau of Labor Statistics is
explicitly provided for in the Deed of Restrictions entered into by the parties. This unique and
peculiar circumstance, among other strong justifications therein mentioned, is not extant in the
case at bar.
In sum, the Court holds that -
(1)....The provisions of the Restrictive Covenant are valid;
(2)....Petitioners must be held to be bound thereby; and
(3)....Since the extension constructed exceeds the floor area limits of the Restrictive Covenant,
petitioner-spouses can be required to demolish the structure to the extent that it exceeds the
prescribed floor area limits.
WHEREFORE, the assailed decision, dated 13 July 1998, of the Court of Appeals in CA-G.R.
CV No. 50085, sustaining that of the court a quo, is AFFIRMED. No costs.
SO ORDERED.
Melo, (Chairman), Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.
G.R. No. 90596 April 8, 1991
SOLID MANILA CORPORATION, petitioner,
vs.
BIO HONG TRADING CO., INC. and COURT OF APPEALS, respondents.
Balgos & Perez for petitioner.
Alfredo G. de Guzman for private respondent.
SARMIENTO, J.:
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 Appeals1 erred in reversing
the trial court which had rendered summary judgment; and (2) whether or not it erred in holding
that an easement had been extinguished by merger.
We rule for the petitioner on both counts.
It appears that the petitioner is the owner of a parcel of land located in Ermita, Manila, covered
by Transfer Certificate of Title No. 157750 of the Register of Deeds of Manila. The same lies
in the vicinity of another parcel, registered in the name of the private respondent corporation
under Transfer Certificate of Title No. 128784.
The private respondent's title came from a prior owner, and in their deed of sale, the parties
thereto reserved as an easement of way:
. . .a portion thereof measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or
less, had been converted into a private alley for the benefit of neighboring estates, this being
duly annotated at the back of the covering transfer Certificate of title per regulations of the
Office of the City Engineer of Manila and that the three meterwide portion of said parcel along
the Pasig River, with an area of ONE HUNDRED SEVENTY NINE (179) SQUARE METERS,
more or less, had actually been expropriated by the City Government, and developed pursuant
to the beautification drive of the Metro Manila Governor. (p. 3, Record).2
As a consequence, an annotation was entered in the private respondent's title, as follows:

Entry No. 7712/T-5000 –– CONSTRUCTION OF PRIVATE ALLEY –– It is hereby made of
record that a construction of private alley has been undertaken on the lot covered by this title
from Concepcion Street to the interior of the aforesaid property with the plan and specification
duly approved by the City Engineer subject to the following conditions to wit: (1) That the private
alley shall be at least three (3) meters in width; (2) That the alley shall not be closed so long as
there's a building exists thereon (sic); (3) That the alley shall be open to the sky; (4) That the
owner of the lot on which this private alley has been constituted shall construct the said alley
and provide same with concrete canals as per specification of the City Engineer; (5) That the
maintenance and upkeep of the alley shall be at the expense of the registered owner; (6) That
the alley shall remain open at all times, and no obstructions whatsoever shall be placed
thereon; (7) That the owner of the lot on which the alley has been constructed shall allow the
public to use the same, and allow the City to lay pipes for sewer and drainage purposes, and
shall not act (sic) for any indemnity for the use thereof; and (8) That he shall impose upon the
vendee or new owner of the property the conditions abovementioned; other conditions set forth
in Doc. No. 4236, Page No. 11, Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila.3
The petitioner claims that ever since, it had (as well as other residents of neighboring estates)
made use of the above private alley and maintained and contributed to its upkeep, until
sometime in 1983, when, and over its protests, the private respondent constructed steel gates
that precluded unhampered use.
On December 6, 1984, the petitioner commenced suit for injunction against the private
respondent, to have the gates removed and to allow full access to the easement.
The court a quo shortly issued ex parte an order directing the private respondent to open the
gates. Subsequently, the latter moved to have the order lifted, on the grounds that: (1) the
easement referred to has been extinguished by merger in the same person of the dominant
and servient estates upon the purchase of the property from its former owner; (2) the petitioner
has another adequate outlet; (3) the petitioner has not paid any indemnity therefor; and (4) the
petitioner has not shown that the right-of-way lies at the point least prejudicial to the servient
estate.
The private respondent's opposition notwithstanding, the trial court issued a "temporary writ of
preliminary injunction to continue up to the final termination of the case upon its merits upon
the posting of a P5,000.00 bond by the plaintiff.4 (the petitioner herein).
Thereafter, the respondent corporation answered and reiterated its above defenses.
On April 15, 1986, the petitioner moved for summary judgment and the court a quo ruled on
the same as follows:
In view of the foregoing, this Court finds it unnecessary to try this case on the merit (sic) and
hereby resolve (sic) to grant the plaintiffs motion for summary judgment. (pp. 15-107, Record).5
On January 19, 1987, the trial court rendered judgment against the private respondent, the
dispositive portion of which states:
WHEREFORE, judgment is hereby rendered making permanent the temporary mandatory
injunction, that had been issued against the defendant, and for the defendant to pay the plaintiff
the costs of this suit.
The defendant's counterclaim against the plaintiff is hereby dismissed, for lack of merit.
(Summary Judgment, p. 6).6
The private respondent appealed to the respondent Court of Appeals.
Meanwhile, the private respondent itself went to the Regional Trial Court on a petition for the
cancellation of the annotation in question. The court granted cancellation, for which the
petitioner instituted CA-G.R. SP No. 13421 of the respondent Court of Appeals which ordered
the restoration of the annotation "without prejudice [to] the final outcome of7 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 alienated11 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,"29 and a third party (as the petitioner herein is a third party) has the personality to claim
its benefits. In his separate opinion, however, Justice Jose Laurel maintained that a personal
or voluntary servitude does require a contract and that "[t]he act of the plaintiff in opening the
private way here involved did not constitute an offer . . . "30 and "[t]here being no offer, there
could be no acceptance; hence no contract."31
The Court sees no need to relive the animated exchanges between two legal titans (they would
contend even more spiritedly in the "larger" world of politics) to whom present scholars perhaps
owe their erudition and who, because of the paths they have taken, have shaped history itself;
after all, and coming back to the case at bar, it is not disputed that an easement has been
constituted, whereas it was disputed in North Negros' case. Rather, the question is whether it
is still existing or whether it has been extinguished. As we held, our findings is that it is in
existence and as a consequence, the private respondent can not bar the public, by erecting an
obstruction on the alley, from its use.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is SET ASIDE
and the decision of the Regional Trial Court is hereby REINSTATED. The petitioner and its
counsel are hereby required to SHOW CAUSE why they should not be punished for contempt
of court, and also administratively dealt with in the case of counsel, for forum shopping.
IT IS SO ORDERED.
Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
G.R. No. 143643 June 27, 2003
NATIONAL POWER CORPORATION, petitioner,
vs.
SPS. JOSE C. CAMPOS, JR. and MA. CLARA LOPEZ-CAMPOS, respondents.
CALLEJO, SR., J.:
This is a petition for review of the Decision1 dated June 16, 2000 of the Court of Appeals in
CA-G.R. CV No. 54265. The assailed decision affirmed in toto the Decision2 of the Regional
Trial Court (RTC) of Quezon City, Branch 98, which ordered petitioner National Power
Corporation to pay, among others, actual, moral and nominal damages in the total amount of
P1,980,000 to respondents Spouses Jose C. Campos, Jr. and Ma. Clara A. Lopez-Campos.
The petition at bar stemmed from the following antecedents:
On February 2, 1996, the respondents filed with the court a quo an action for sum of money
and damages against the petitioner. In their complaint, the respondents alleged that they are
the owners of a parcel of land situated in Bo. San Agustin, Dasmariñas, Cavite, consisting of
66,819 square meters ("subject property") covered by Transfer Certificate of Title (TCT) No. T-
957323. Sometime in the middle of 1970, Dr. Paulo C. Campos, who was then the President
of the Cavite Electric Cooperative and brother of respondent Jose C. Campos, Jr., verbally
requested the respondents to grant the petitioner a right-of-way over a portion of the subject
property. Wooden electrical posts and transmission lines were to be installed for the
electrification of Puerto Azul. The respondents acceded to this request upon the condition that
the said installation would only be temporary in nature. The petitioner assured the respondents
that the arrangement would be temporary and that the wooden electric posts would be
relocated as soon as permanent posts and transmission lines shall have been installed.
Contrary to the verbal agreement of the parties, however, the petitioner continued to use the
subject property for its wooden electrical posts and transmission lines without compensating
the respondents therefor.3
The complaint likewise alleged that some time in 1994, the petitioner’s agents trespassed on
the subject property and conducted engineering surveys thereon. The respondents’ caretaker
asked these agents to leave the property. Thereafter, in 1995, a certain "Mr. Raz," who claimed
to be the petitioner’s agent, went to the office of respondent Jose C. Campos, Jr., then
Associate Justice of the Supreme Court, and requested permission from the latter to enter the
subject property and conduct a survey in connection with the petitioner’s plan to erect an all-
steel transmission line tower on a 24-square meter area inside the subject property.
Respondent Jose Campos, Jr., refused to grant the permission and expressed his preference
to talk to the Chief of the Calaca Sub-station or the head of the petitioner’s Quezon City office.
The respondents did not hear from "Mr. Raz" or any one from the petitioner’s office since then.
Sometime in July or August of 1995, the petitioner’s agents again trespassed on the subject
property, presenting to the respondents’ caretaker a letter of authority purportedly written by
respondent Jose C. Campos, Jr. When the caretaker demanded that the letter be given to him
for verification with respondent Jose C. Campos, Jr. himself, the petitioner’s agents refused to
do so. Consequently, the caretaker ordered the agents to leave the subject property.4
The complaint further alleged that on December 12, 1995, the petitioner instituted an
expropriation case involving the subject property before the RTC of Imus, Cavite, Branch 22.
The case was docketed as Civil Case No. 1174-95. The petitioner alleged in its complaint
therein that the subject property was selected "in a manner compatible with the greatest public
good and the least private injury" and that it (petitioner) had tried to negotiate with the
respondents for the acquisition of the right-of-way easement on the subject property but that
the parties failed to reach an amicable settlement.5
The respondents maintained that, contrary to the petitioner’s allegations, there were other more
suitable or appropriate sites for the petitioner’s all-steel transmission lines and that the
petitioner chose the subject property in a whimsical and capricious manner. The respondents
averred that the proposed right-of-way was not the least injurious to them as the system design
prepared by the petitioner could be further revised to avoid having to traverse the subject
property. The respondents vigorously denied negotiating with the petitioner in connection with
the latter’s acquisition of a right-of-way on the subject property.6
Finally, the complaint alleged that unaware of the petitioner’s intention to expropriate a portion
of the subject property, the respondents sold the same to Solar Resources, Inc. As a
consequence, the respondents stand to lose a substantial amount of money derived from the
proceeds of the sale of the subject property should the buyer (Solar Resources, Inc.) decide to
annul the sale because of the contemplated expropriation of the subject property.7
The complaint a quo thus prayed that the petitioner be adjudged liable to pay the respondents,
among others, actual, nominal and moral damages:
WHEREFORE, premises considered, it is respectfully prayed that the Honorable Court award
the plaintiffs:
a. Actual damages for the use of defendants’ property since middle 1970’s, including legal
interest thereon, as may be established during the trial;
b. P1,000,000.00 as nominal damages;
c. P1,000,000.00 as moral damages;
d. Lost business opportunity as may be established during the trial;
e. P250,000.00 as attorney’s fees;
f. Costs of suit.
Plaintiffs pray for other, further and different reliefs as may be just and equitable under the
premises.8
Upon receipt of the summons and complaint, the petitioner moved for additional time to file its
responsive pleading. However, instead of filing an answer to the complaint, the petitioner filed
a motion to dismiss on the ground that the action had prescribed and that there was another
action pending between the same parties for the same cause (litis pendencia). The
respondents opposed said motion. On May 2, 1996, the RTC issued an order denying the
petitioner’s motion to dismiss.
The petitioner then moved for reconsideration of the aforesaid order. The respondents opposed
the same and moved to declare the petitioner in default on the ground that its motion for
reconsideration did not have the required notice of hearing; hence, it did not toll the running of
the reglementary period to file an answer.
On July 15, 1996, the RTC issued an order denying the petitioner’s motion for reconsideration.
Subsequently, on July 24, 1996, it issued another order granting the respondents’ motion and
declared the petitioner in default for its failure to file an answer. The petitioner filed a motion to
set aside the order of default but the same was denied by the RTC.
The petitioner filed a petition for certiorari, prohibition and preliminary injunction with the Court
of Appeals, docketed as CA-G.R. SP No. 41782, assailing the May 2, 1996, July 15, 1996 and
July 24, 1996 Orders issued by the RTC as having been issued with grave abuse of discretion
and to enjoin it from proceeding with the case. On February 13, 1996, the CA dismissed the
petition for certiorari, prohibition and preliminary injunction filed by the petitioner in CA-G.R. SP
No. 41782.
In the meantime, the respondents adduced their evidence ex parte in the RTC. As synthesized
by the trial court, the respondents adduced evidence, thus:
From the evidence thus far submitted, it appears that the plaintiffs spouses, both of whom
professional of high standing in society, are the absolute owners of a certain parcel of land
situated in Bo. San Agustin, Dasmariñas, Cavite, consisting of 66,819 square meters, more or
less, covered and embraced in TCT No. T-95732. Sometime in the mid-1970, Dr. Paulo C.
Campos, brother of Justice Jose Campos, Jr., then President of the Cavite Electric
Cooperative, approached the latter and confided to him the desire of the National Power
Corporation to be allowed to install temporary wooden electric posts on the portion of his wife’s
property in order that the high-tension transmission line coming from Kaliraya passing thru that
part of Cavite can be continued to the direction of Puerto Azul.
Having heard the plea of his brother and the fact that National Power Corporation was under
pressure because at the time that Puerto Azul was being developed there was no electricity
nor was there electrical lines towards that place and acting on the belief that the installation of
wooden electric posts would be temporary in nature, plaintiffs gave oral permission for the NPC
personnel to enter the said parcel of land. Dr. Paulo C. Campos, assured him that it was just a
temporary measure to meet the emergency need of the Puerto Azul and that the wooden
electric posts will be relocated when a permanent posts and transmission lines shall have been
installed. Pursuant to their understanding, the National Power Corporation installed wooden
posts across a portion of plaintiffs’ property occupying a total area of about 2,000 square meters
more or less. To date, defendant NPC has been using the plaintiffs’ property for its wooden
electrical posts and transmission lines; that the latter has estimated that the aggregate rental
(which they peg at the conservative rate of P1.00 per square meter) of the 2,000 square meters
for twenty-four (24) years period, would amount to the aggregate sum of P480,000.00.
From the time National Power Corporation installed those temporary wooden posts, no notice
was ever served upon the plaintiffs of their intention to relocate the same or to install permanent
transmission line on the property. Also, there was no personal contact between them. However,
in late 1994, plaintiffs’ overseer found a group of persons of the defendant NPC conducting
survey inside the said property, and were asked to leave the premises upon being discovered
that they have no authority to do so from the owners thereof. Subsequently thereafter, or
sometime in 1995, a person by the name of Mr. Paz, bearing a letter from Calaca Regional
Office, went to see Justice Jose C. Campos, Jr. in his office, informing the latter that he was
authorized by the National Power Corporation to acquire private lands. In the same breath, Mr.
Paz requested his permission to let NPC men enter the subject property and to conduct a
survey in connection with its plan to erect an all steel transmission line tower on a 24 square
meter area inside plaintiffs’ property, but same was denied. Justice Campos, however,
expressed his preference to talk instead to the Chief of the Calaca Sub-station or the Head of
the NPC, Quezon City office. Since then, nothing however transpired.
Sometime in July or August 1995, plaintiffs learned that defendant’s agents again entered the
subject property. This time, they have presented to the caretaker a letter of authority
supposedly from Justice Jose C. Campos, Jr. And, when prodded to see the letter for
verification, defendant’s agents refused to do so. So, they were ordered out of the vicinity.
Plaintiffs stressed that defendant’s repeated intrusions into their property without their
expressed knowledge and consent had impugned on their constitutional right to protection over
their property.
Later, on December 12, 1995, plaintiffs received copy of summons and complaint in Civil Case
No. 1174-95 filed by the defendant before the Regional Trial Court, Fourth Judicial Region,
Branch 22, Imus, Cavite for the expropriation of 5,320 square meters of plaintiffs’ above-
described property to be used as right-of-way for the all-steel transmission line tower of the
Calaca-Dasmariñas 230 KV T/L Project. But what had caused plaintiffs’ discomfiture is the
allegation in said complaint stating that the "parcel of land sought to be expropriated has not
been applied to nor expropriated for any public use and is selected by plaintiff in a manner
compatible with the greatest good and the least private injury" and that defendant "had
negotiated with (plaintiffs) for the acquisition of the right-of-way easement over the portion of
the same for the public purpose as above-stated at a price prescribed by law, but failed to reach
an agreement with them notwithstanding the repeated negotiations between the parties".
Plaintiffs’ assert that at no instance was there a negotiation between them and the NPC or its
representative. The alleged "talk" initiated by Mr. Paz with Justice Campos, Jr. just ended in
the latter’s remonstrance and in prevailing upon the former of his preference to discuss the
matter with a more responsible officer of the National Power Corporation, such as the Chief of
the Calaca Sub-Station or the Head of NPC’s Office in Quezon City. But plaintiffs’ plea just fell
on the deaf ear. The next thing they know was Civil Case No. Q-1174-95 already filed in court.
A party to a case shall not do falsehood nor shall mislead or misrepresent the contents of its
pleading. That gross misrepresentation had been made by the National Power Corporation in
their said pleading is irrefutable.
Plaintiffs-spouses Campos declared that there are other areas more suitable or appropriate
that can be utilized as alternative sites for the all-steel transmission line tower. Just a few
meters from the planned right-of-way is an abandoned road occupied by squatters; it is a
government property and the possession of which the NPC need not compensate. The latter
had not exercised judiciously in the proper selection of the property to be appropriated.
Evidently, NPC’s choice was whimsical and capricious. Such arbitrary selection of plaintiffs’
property despite the availability of another property in a manner compatible with the greatest
public good and the least private injury, constitutes an impermissible encroachment of plaintiffs’
proprietary rights and their right to due process and equal protection.
Concededly, NPC’s intention is to expropriate a portion of plaintiffs’ property. This limitation on
the right of ownership is the paramount right of the National Power Corporation granted by law.
But before a person can be deprived of his property through the exercise of the power of
eminent domain, the requisites of law must strictly be complied with. (Endencia vs. Lualhati, 9
Phil. 177) No person shall be deprived of his property except by competent authority and for
public use and always upon payment of just compensation. Should this requirement be not first
complied with, the courts shall protect and, in a proper case, restore the owner in his
possession. (Art. 433 Civil Code of the Philippines)
Records disclose that in breach of such verbal promise, defendant NPC had not withdrawn the
wooden electrical posts and transmission lines; said wooden electrical posts and transmission
lines still occupy a portion of plaintiffs’ property; that the NPC had benefited from them for a
long period of time already, sans compensation to the owners thereof.
Without first complying with the primordial requisites appurtenant to the exercise of the power
of eminent domain, defendant NPC again boldly intruded into plaintiffs’ property by conducting
engineering surveys with the end in view of expropriating 5,320 square meters thereof to be
used as right-of-way for the all-steel transmission line tower of the Calaca-Dasmariñas 230 KV
T/L Project. Such acts constitute a deprivation of one’s property for public use without due
compensation. It would therefore seem that the expropriation had indeed departed from its own
purpose and turns out to be an instrument to repudiate compliance with obligation legally and
validly contracted.9
On September 26, 1996, the RTC rendered a decision finding the petitioner liable for damages
to the respondents. The dispositive portion of the RTC decision reads:
WHEREFORE, in view of the foregoing consideration, justment [sic] is hereby rendered in favor
of the plaintiffs, condemning the defendant to pay –
(a) Actual damages of P480,000.00 for the use of plaintiff’s property;
(b) One Million Pesos (P1,000,000.00) as moral damages;
(c ) Five Hundred Thousand Pesos (P500,000.00) as nominal damages;
(d) One Hundred Fifty Thousand Pesos (P150,000.00) as attorney’s fees; and
(e) Costs of suit in the amount of P11,239.00.
SO ORDERED.10
The petitioner appealed the decision to the Court of Appeals which on June 16, 1990 rendered
a decision affirming the ruling of the RTC.
Essentially, the CA held that the respondents’ claim for compensation and damages had not
prescribed because Section 3(i) of the petitioner’s Charter, Republic Act No. 6395, as
amended, is not applicable to the case. The CA likewise gave scant consideration to the
petitioner’s claim that the respondents’ complaint should be dismissed on the ground of litis
pendencia. According to the CA, the complaint a quo was the more appropriate action
considering that the venue for the expropriation case (Civil Case No. 1174-95) was initially
improperly laid. The petitioner filed the expropriation proceedings with the RTC in Imus, Cavite,
when the subject property is located in Dasmariñas, Cavite. Moreover, the parties in the two
actions are not the same since the respondents were no longer included as defendants in the
petitioner’s amended complaint in the expropriation case (Civil Case No. 1174-95) but were
already replaced by Solar Resources, Inc., the buyer of the subject property, as defendant
therein.
The CA likewise found the damages awarded by the RTC in favor of the respondents just and
reasonable under the circumstances obtaining in the case.
The petitioner now comes to this Court seeking to reverse and set aside the assailed decision.
The petitioner alleges as follows:
I
The Court of Appeals grievously erred and labored under a gross misapprehension of fact in
finding that the Complaint below should not be dismissed on the ground of prescription.
II
The Court of Appeals erred in affirming the award of nominal and moral damages, attorney’s
fees and costs of litigation.11
Citing Article 620 of the Civil Code, the petitioner contends that it had already acquired the
easement of right-of-way over the portion of the subject property by prescription, the said
easement having been allegedly continuous and apparent for a period of about twenty-three
(23) years, i.e., from about the middle of 1970 to the early part of 1994. The petitioner further
invokes Section 3(i) of its Charter in asserting that the respondents already waived their right
to institute any action for compensation and/or damages concerning the acquisition of the
easement of right-of-way in the subject property. Accordingly, the petitioner concludes that the
award of damages in favor of the respondents is not warranted.
The petition is bereft of merit.
The petitioner’s claim that, under Article 620 of the Civil Code, it had already acquired by
prescription the easement of right-of-way over that portion of the subject property where its
wooden electric posts and transmission lines were erected is untenable. Article 620 of the Civil
Code provides that:
Art. 620. Continuous and apparent easements are acquired either by virtue of a title or by
prescription of ten years.
Prescription as a mode of acquisition requires the existence of the following: (1) capacity to
acquire by prescription; (2) a thing capable of acquisition by prescription; (3) possession of the
thing under certain conditions; and (4) lapse of time provided by law.12 Acquisitive prescription
may either be ordinary, in which case the possession must be in good faith and with just title,13
or extraordinary, in which case there is neither good faith nor just title. In either case, there has
to be possession which must be in the concept of an owner, public, peaceful and
uninterrupted.14 As a corollary, Article 1119 of the Civil Code provides that:
Art. 1119. Acts of possessory character executed in virtue of license or by mere tolerance of
the owner shall not be available for the purposes of possession.
In this case, the records clearly reveal that the petitioner’s possession of that portion of the
subject property where it erected the wooden posts and transmission lines was merely upon
the tolerance of the respondents. Accordingly, this permissive use by the petitioner of that
portion of the subject property, no matter how long continued, will not create an easement of
right-of-way by prescription. The case of Cuaycong vs. Benedicto15 is particularly instructive.
In that case, the plaintiffs for more than twenty years made use of the road that passed through
the hacienda owned by the defendants, being the only road that connected the plaintiff’s
hacienda to the public road. The defendants closed the road in question and refused the use
of the same unless a toll was paid. The plaintiffs therein brought an action to enjoin the
defendants from interfering with the use of the road. In support of their action, the plaintiffs
presented evidence tending to show that they have acquired the right-of-way through the road
by prescription. This Court rejected the contention, holding as follows:
Had it been shown that the road had been maintained at the public expense, with the
acquiescence of the owners of the estates crossed by it, this would indicate such adverse
possession by the government as in course of time would ripen into title or warrant the
presumption of a grant or of a dedication. But in this case there is no such evidence, and the
claims of plaintiffs, whether regarded as members of the public asserting a right to use the road
as such, or as persons claiming a private easement of way over the land of another must be
regarded as resting upon the mere fact of user.
If the owner of a tract of land, to accommodate his neighbors or the public in general, permits
them to cross his property, it is reasonable to suppose that it is not his intention, in so doing, to
divest himself of the ownership of the land so used, or to establish an easement upon it, and
that the persons to whom such permission, tacit or express, is granted, do not regard their
privilege of use as being based upon anything more than the mere tolerance of the owner.
Clearly, such permissive use is in its inception based upon an essentially revocable license. If
the use continues for a long period of time, no change being made in the relations of the parties
by any express or implied agreement, does the owner of the property affected lose his right of
revocation? Or, putting the same question in another form, does the mere permissive use ripen
into title by prescription?
It is a fundamental principle of the law in this jurisdiction concerning the possession of real
property that such possession is not affected by acts of a possessory character which are
"merely tolerated" by the possessor, which are or due to his license (Civil Code, arts. 444 and
1942). This principle is applicable not only with respect to the prescription of the dominium as
a whole, but to the prescription of right in rem. In the case of Cortes vs. Palanca Yu-Tibo (2
Phil. Rep., 24, 38), the Court said:
The provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated
produce no effect with respect to possession is applicable as much to the prescription of real
rights as to the prescription of the fee, it being a glaring and self-evident error to affirm the
contrary, as does the appellant in his motion papers. Possession is the fundamental basis of
prescription. Without it no kind of prescription is possible, not even the extraordinary.
Consequently, if acts of mere tolerance produce no effect with respect to possession, as that
article provides, in conformity with article 444 of the same Code, it is evident that they can
produce no effect with respect to prescription, whether ordinary or extraordinary. This is true
whether the prescriptive acquisition be of a fee or of real rights, for the same reason holds in
one and the other case; that is, that there has been no true possession in the legal sense of
the word. (Citations omitted)
Possession, under the Civil Code, to constitute the foundation of a prescriptive right, must be
possession under claim of title (en concepto de dueño), or to use the common law equivalent
of the term, it must be adverse. Acts of possessory character performed by one who holds by
mere tolerance of the owner are clearly not en concepto de dueño, and such possessory acts,
no matter how long so continued, do not start the running of the period of prescription.16
Following the foregoing disquisition, the petitioner’s claim that it had acquired the easement of
right-of-way by prescription must perforce fail. As intimated above, possession is the
fundamental basis of prescription, whether ordinary or extraordinary. The petitioner never
acquired the requisite possession in this case. Its use of that portion of the subject property
where it erected the wooden poles and transmission lines was due merely to the tacit license
and tolerance of the respondents. As such, it cannot be made the basis of the acquisition of an
easement of right-of-way by prescription.
Neither can the petitioner invoke Section 3(i) of its Charter (Rep. Act No. 6395, as amended)
to put up the defense of prescription against the respondents. The said provision reads in part:
Sec. 3(i). … The Corporation or its representatives may also enter upon private property in the
lawful performance or prosecution of its business or purposes, including the construction of
transmission lines thereon; Provided, that the owner of such private property shall be paid the
just compensation therefor in accordance with the provisions hereinafter provided; Provided,
further, that any action by any person claiming compensation and/or damages shall be filed
within five years after the right-of-way, transmission lines, substations, plants or other facilities
shall have been established: Provided, finally, that after the said period no suit shall be brought
to question the said right-of-way, transmission lines, substations, plants or other facilities nor
the amounts of compensation and/or damages involved;
Two requisites must be complied before the above provision of law may be invoked:
1. The petitioner entered upon the private property in the lawful performance or prosecution of
its businesses or purposes; and
2.The owner of the private property shall be paid the just compensation therefor.
As correctly asserted by the respondents, Section 3(i) of Rep. Act No. 6395, as amended,
presupposes that the petitioner had already taken the property through a negotiated sale or the
exercise of the power of eminent domain, and not where, as in this case, the petitioner was
merely temporarily allowed to erect wooden electrical posts and transmission lines on the
subject property. Significantly, the provision uses the term "just compensation," implying that
the power of eminent domain must first be exercised by the petitioner in accordance with
Section 9, Article III of the Constitution, which provides that "no private property shall be taken
for public use without just compensation."
This Court’s ruling in Lopez vs. Auditor General17 is likewise in point:
The petitioner brought this case to this Court on the sole issue of prescription. He cites Alfonso
vs. Pasay City in which a lot owner was allowed to bring an action to recover compensation for
the value of his land, which the Government had taken for road purposes, despite the lapse of
thirty years (1924-1954). On the other hand, the respondents base their defense of prescription
on Jaen vs. Agregado which held an action for compensation for land taken in building a road
barred by prescription because it was brought after more than ten years (i.e., thirty three years,
from 1920 to 1953). They argue that the ruling in Alfonso cannot be applied to this case
because, unlike Alfonso who made repeated demands for compensation within ten years,
thereby interrupting the running of the period of prescription, the petitioner here filed his claim
only in 1959.
It is true that in Alfonso vs. Pasay City this Court made the statement that "registered lands are
not subject to prescription and that on grounds of equity, the government should pay for private
property which it appropriates though for the benefit of the public, regardless of the passing of
time." But the rationale in that case is that where private property is taken by the Government
for public use without first acquiring title thereto either through expropriation or negotiated sale,
the owner’s action to recover the land or the value thereof does not prescribe. This is the point
that has been overlooked by both parties.
On the other hand, where private property is acquired by the Government and all that remains
is the payment of the price, the owner’s action to collect the price must be brought within ten
years otherwise it would be barred by the statue of limitations.18
Thus, the five-year period provided under Section 3(i) of Rep. Act No. 6395, as amended, within
which all claims for compensation and/or damages may be allowed against the petitioner
should be reckoned from the time that it acquired title over the private property on which the
right-of-way is sought to be established. Prior thereto, the claims for compensation and/or
damages do not prescribe. In this case, the findings of the CA is apropos:
Undeniably, NPC never acquired title over the property over which its wooden electrical posts
and transmission lines were erected. It never filed expropriation proceedings against such
property. Neither did it negotiate for the sale of the same. It was merely allowed to temporarily
enter into the premises. As NPC’s entry was gained through permission, it had no intention to
acquire ownership either by voluntary purchase or by the exercise of eminent domain.19
The petitioner instituted the expropriation proceedings only on December 12, 1995.
Indisputably, the petitioner never acquired title to that portion of the subject property where it
erected the wooden electrical posts and transmission lines. Until such time, the five-year
prescriptive period within which the respondents’ right to file an action to claim for
compensation and/or damages for the petitioner’s use of their property does not even
commence to run. The CA thus correctly ruled that Section 3(i) of Rep. Act No. 6395, as
amended, finds no application in this case and that the respondents’ action against the
petitioner has not prescribed.
With respect to the damages awarded in favor of the respondents, the petitioner avers, thus:
The Court of Appeals erred in affirming the award of nominal and moral damages, attorney’s
fees and costs of litigation.
It follows from Section 31(c) of R.A. 6395 that the award moral and nominal damages, as well
as attorney’s fees and costs are baseless. The right to claim them has likewise prescribed.20
With our ruling that the claims of the respondents had not prescribed, the petitioner’s contention
that the respondents are not entitled to moral and nominal damages and attorney’s fees must
fail. In affixing the award for moral and nominal damages and attorney’s fees, the CA
ratiocinated:
With respect to the fourth assignment of error, this Court is not persuaded to reverse much less
modify the court a quo’s findings.
An award of moral damages would require certain conditions to be met, to wit: (1) first, there
must be an injury, whether physical, mental or psychological, clearly sustained by the claimant;
(2) second, there must be a culpable act or omission factually established; (3) third, the
wrongful act or omission of the defendant is the proximate cause of the injury sustained by the
claimant; and (4) fourth, the award of damages is predicated on any of the cases stated in
Article 2219 of the Civil Code.
NPC made it appear that it negotiated with the appellees when no actual negotiations took
place. This allegation seriously affected the on-going sale of the property to Solar Resources,
Inc. as appellees seemed to have sold the property knowing fully well that a portion thereof
was being expropriated. Such an act falls well within Article 21 of the Civil Code. NPC’s
subterfuge certainly besmirched the reputation and professional standing of Justice Jose C.
Campos, Jr. and Professor Maria Clara A. Lopez-Campos, and caused them physical suffering,
mental anguish, moral shock and wounded feelings.
The records show that Justice Campos’ career included, among other[s], being a Professor of
Law at the University of the Philippines; Acting Chairman of the Board of Transportation;
Presiding Judge of the Court of First Instance of Pasay City, and Associate Justice of the Court
of Appeals. Such career reached its apex when he was appointed Associate Justice of the
Supreme Court in 1992. Justice Campos was a member of the Judicial and Bar Council when
NPC filed its Civil Case No. 1174-95. Professor Maria Clara A. Lopez-Campos is a noted
authority in Corporate and Banking Laws and is a Professor Emerita of the University of the
Philippines from 1981 to the present. She had taught more than three decades at the College
of Law. Against such backdrop, it does not take too much imagination to conclude that the
oppressive and wanton manner in which NPC sought to exercise its statutory right of eminent
domain warranted the grant of moral damages.
On the award of nominal damages, such are adjudicated in order that a right of the plaintiff,
which has been violated or invaded by the defendant, may be vindicated or recognized, and
not for the purpose of indemnifying the plaintiff for any loss suffered by him. As previously
discussed, it does not brood well for a government entity such as NPC to disregard the tenets
of private property enshrined in the Constitution. NPC not only intentionally trespassed on
appellees’ property and conducted engineering surveys thereon but also sought to fool the
appellees’ caretaker by claiming that such entry was authorized. Moreover, NPC even justifies
such trespass as falling under its right to expropriate the property. Under the circumstances,
the award of nominal damages is sustained.
That NPC’s highhanded exercise of its right of eminent domain constrained the appellees to
engage the services of counsel is obvious. As testified upon, the appellees engaged their
counsel for an agreed fee of P250,000.00. The trial court substantially reduced this to
P150,000.00. Inasmuch as such services included not only the present action but also those
for Civil Case No. 1174-95 erroneously filed by NPC with the Regional Trial Court of Imus,
Cavite, and the Petition for Certiorari in CA-GR No. 41782, this Court finds such attorney’s fees
to be reasonable and equitable.21
We agree with the CA.
The award of moral damages in favor of the respondents is proper given the circumstances
obtaining in this case. As found by the CA:
NPC made it appear that it negotiated with the appellees when no actual negotiation took place.
This allegation seriously affected the on-going sale of the property to Solar Resources, Inc. as
appellees seemed to have sold the property knowing fully well that a portion thereof was being
expropriated. Such an act falls well within Article 21 of the Civil Code. NPC’s subterfuge
certainly besmirched the reputation and professionally standing of Justice Jose C. Campos, Jr.
and Professor Maria Clara A. Lopez-Campos, and caused them physical suffering, mental
anguish, moral shock and wounded feelings.
The records show that Justice Campos’ career included, among other[s], being a Professor of
Law at the University of the Philippines; Acting Chairman of the Board of Transportation;
Presiding Judge of the Court of First Instance of Pasay City, and Associate Justice of the Court
of Appeals. Such career reached its apex when he was appointed Associate Justice of the
Supreme Court in 1992. Justice Campos was a member of the Judicial and Bar Council when
NPC filed its Civil Case No. 1174-95. Professor Maria Clara A. Lopez-Campos is a noted
authority in Corporate and Banking Laws and is a Professor Emerita of the University of the
Philippines from 1981 to the present. She had taught more than three decades at the College
of Law. Against such backdrop, it does not take too much imagination to conclude that the
oppressive and wanton manner in which NPC sought to exercise its statutory right of eminent
domain warranted the grant of moral damages.22
Further, nominal damages are adjudicated in order that a right of the plaintiff, which has been
violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose
of indemnifying the plaintiff for any loss suffered by him.23 Similarly, the court may award
nominal damages in every case where any property right has been invaded.24 The petitioner,
in blatant disregard of the respondents’ proprietary right, trespassed the subject property and
conducted engineering surveys thereon. It even attempted to deceive the respondents’
caretaker by claiming that its agents were authorized by the respondents to enter the property
when in fact, the respondents never gave such authority. Under the circumstances, the award
of nominal damages is likewise warranted.
Finally, the award of attorney’s fees as part of damages is deemed just and equitable
considering that by the petitioner’s unjustified acts, the respondents were obviously compelled
to litigate and incur expenses to protect their interests over the subject property.25
WHEREFORE, the petition is hereby DENIED for lack of merit. The assailed Decision dated
June 16, 2000 of the Court of Appeals in CA-G.R. CV No. 54265 is AFFIRMED in toto.
SO ORDERED.
Bellosillo, and Quisumbing, JJ., concur.
Austria-Martinez, J., on official leave.
G.R. No. L-14116 June 30, 1960
LAUREANA A. CID, petitioner,
vs.
IRENE P. JAVIER, MANUEL P. JAVIER, JOSEFINA P. JAVIER, FERNANDO P. JAVIER,
JOSE P. JAVIER, GUILLERMO P. JAVIER, ISIDORA P. JAVIER, BENJAMIN P. JAVIER,
and LEONOR CRISOLOGO, respondents.
Antonio V. Raquiza for petitioner.
Cesar D. Javier for respondents.
BARRERA, J.:
The legal issue presented in this petition to review by certiorari a decision of the Court of
appeals, is whether the respondents Irene P. Javier, et al., owners of a building standing on
their lot with windows overlooking the adjacent lot, had acquired by prescription an enforceable
easement of light and view arising from a verbal prohibition to obstruct such view and light,
alleged to have been made upon petitioner's
predecessor-in-interest as owner of the adjoining lot, both of which lots being covered by
Torrens titles. Both the trial court and the Court of Appeals are of the view and so declared that
respondents Javier et al., did acquire such easement and gave judgment accordingly. Hence,
petitioner has come to us seeking review, alleging that both courts are in error.
The windows in question are admittedly in respondents' own building erected on their own lot.
The easement, if there is any, is therefore a negative one.1 The alleged prohibition having been
avowedly made in 1913 or 1914, before the present Civil Code took effect, the applicable legal
provision is Article 538 of the Spanish Civil Code which provides:
Art. 538. In order to acquire by prescription the easements referred to in the next preceding
article, the time of the possession shall be computed, ... in negative easements, from the day
on which the owner of the dominant estate has, by a formal act, forbidden the owner of the
servient estate to perform any act which would be lawful without the easement. (Emphasis
supplied.)
As may be seen, the only question hinges on the interpretation of the phrase "a formal act".
The lower court and the Court of Appeals considered any prohibition made by the owner of the
dominant estate, be it oral or written, sufficient compliance with the law. The Court of Appeals
declared:
In the light of the foregoing decisions, (Cortes vs. Yu Tibo, 2 Phil., 26 and the decisions of the
Supreme Court of Spain therein cited), we agree with the trial court that the "formal act" of
prohibition contemplated by Art. 538 of the old Civil Code may be either a written or verbal act.
The decisions of the Supreme Court of Spain above-quoted do not at all mention written but
merely some act of prohibition. . . . .
We are inclined to take the contrary view. The law is explicit. It requires not any form of
prohibition, but exacts, in a parenthetical expression, for emphasis, the doing not only of a
specific, particular act, but a formal act. The following definitions are pertinent:
Formal—or pertaining to form, characterized by one due form or order, done in due form with
a solemnity regular; relating to matters of form. (C. J. S. vol. 37, p. 115.)
Act—In civil law, a writing which states in legal form that a thing has been done, said or agreed.
(1 Bouvier's Law Dictionary, p. 150, citing Marlin Report.)
From these definitions, it would appear that the phrase "formal act" would require not merely
any writing, but one executed in due form and/or with solemnity. That this is the intendment of
the law although not expressed in exact language is the reason for the clarification2 made in
Article 621 of the new Civil Code which specifically requires the prohibition to be in "an
instrument acknowledged before a notary public". This is as it should be. Easements are in the
nature of an encumbrance on the servient estate. They constitute a limitation of the dominical
right of the owner of the subjected property. Hence, they can be acquired only by title and by
prescription, in the case of positive easement, only as a result of some sort of invasion,
apparent and continuous, of the servient estate. By the same token, negative easements can
not be acquired by less formal means. Hence, the requirement that the prohibition (the
equivalent of the act of invasion) should be by "a formal act", "an instrument acknowledged
before a notary public."
The Court of Appeals found as undisputed the fact 'that plaintiffs' lot (dominant) as well as
defendant's lot (servient) are covered by Original Certificates of Title Nos. 7225 and 7545,
respectively", both issued by the Register of Deeds of Ilocos Norte, in pursuance of the decrees
of registration issued on December 27, 1937, in Cadastral Case No. 51, G.L.R.O. Cadastral
Record No. 1212 of Laoag, Ilocos Norte. Certified copies of these certificates of title are found
as Annexes "A" and "B", pages 77 to 80 inclusive of the Record on Appeal. In both of them, it
does not appear any annotation in respect to the easement supposedly acquired by
prescription which, counting the twenty (20) years from 1913 or 1914, would have already
ripened by 1937, date of the decrees of registration. Consequently, even conceding arguendo
that such an easement has been acquired, it had been cut off or extinguished by the registration
of the servient estate under the Torrens System without the easement being annotated on the
corresponding certificate of title, pursuant to Section 39 of the Land Registration Act.3
Wherefore, the decision of the Court of Appeals appealed from is hereby reversed; the
injunction issued herein dissolved; and the case remanded to the court of origin for adjudication
of the damages, if any, occasioned by the issuance of the injunction. Without pronouncement
as to costs. So ordered.
Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L.,
and Gutierrez David, JJ., concur.
RESOLUTION
January 20, 1961
BARRERA, J.:
The Decision in this case, promulgated on June 30, 1960, provided, among others, for the lifting
of the preliminary injunction issued by the lower court directed against petitioner's construction
of a building allegedly being made in violation of Municipal Ordinance No. 3, series of 1909 of
the municipality of Laoag, and in disregard of respondents' right to light and view.
In their motion for reconsideration timely presented, respondents claim that the findings of the
lower court, affirmed by the Court of Appeals, that the building under construction violated the
aforementioned ordinance (from which no appeal was interposed) having become final, justify
the issuance of and making permanent the injunction already issued.
There is no question that respondents' house, as well as that of petitioner, are within their
respective properties; that respondents' wall stands only 50 centimeters from the boundary of
the 2 lots, whereas, the wall of the petitioner's building was constructed 1 meter from the
boundary or 1 meter and 50 centimeters from the wall of the house of respondents. As a result,
the lower court found that the eaves of the two houses overlap each other by 24 centimeters.
This, the Court of Appeals declared to be violative of Ordinance No. 3, series of 1903,
amending Sections 1, 5, 6, and 13 of the Municipal Ordinance of June 3, 1903, which requires
a distance of 2 meters, measured from eaves to eaves of adjoining buildings of strong
materials.
It must be noted, however, that the Ordinance in question was adopted since 1909 and was,
therefore, already in force at the time the house of respondents was reconstructed in 1946 after
the building originally erected thereon was burned in 1942. If respondents constructed their
house at least one meter from the boundary line, as petitioner has constructed hers, there
would be no overlapping of the eaves and there would not be any violation of the ordinance.
As things now stand, in view of such construction by the respondents, the overlapping of the
eaves and the consequential violation of the ordinance can not entirely be attributed to
petitioner, as to require her alone to make the adjustments necessary for the observance of
the 2-meter eaves-to-eaves distance from her neighbors. If any compliance with the ordinance
would be made not only by petitioner, but also by the respondents. There is, therefore, no
reason for the continuation of the injunction.
In view of the foregoing, and as the other grounds respondents' motion for reconsideration had
been already duly considered in the Decision, the said motion is hereby denied, for lack of
merit. So ordered.
Paras, C. J., Bengzon, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Gutierrez
David, Paredes, and Dizon, JJ., concur.
G.R. No. 124699 July 31, 2003
BOGO-MEDELLIN MILLING CO., INC., Petitioner,
vs.
COURT OF APPEALS AND HEIRS OF MAGDALENO VALDEZ SR., Respondents.
DECISION
CORONA, J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to annul and set
aside the decision1 dated November 17, 1995 of the Court of Appeals, Tenth Division, which
reversed the decision2 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 petitioner’s
sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents inherited the
land. However, unknown to them, Bomedco was able to have the disputed middle lot which
was occupied by the railroad tracks placed in its name in the Cadastral Survey of Medellin,
Cebu in 1965. The entire subject land was divided into three, namely, Cadastral Lot Nos. 953,
954 and 955. Lot Nos. 953 and 955 remained in the name of private respondents. However,
Lot No. 954, the narrow lot where the railroad tracks lay, was claimed by Bomedco as its own
and was declared for tax purposes in its name. 5
It was not until 1989 when private respondents discovered the aforementioned claim of
Bomedco on inquiry with the Bureau of Lands. Through their lawyer, they immediately
demanded the legal basis for Bomedco's claim over Cadastral Lot No. 954 but their letter of
inquiry addressed to petitioner went unheeded, as was their subsequent demand for payment
of compensation for the use of the land.6
On June 8, 1989, respondent heirs filed a "Complaint for Payment of Compensation and/or
Recovery of Possession of Real Property and Damages with Application for Restraining
Order/Preliminary Injunction" against Bomedco before the Regional Trial Court of Cebu.7
Respondent heirs alleged that, before she sold the land to Valdez, Sr. in 1935, Santillan granted
Bomedco, in 1929, a railroad right of way for a period of 30 years. When Valdez, Sr. acquired
the land, he respected the grant. The right of way expired sometime in 1959 but respondent
heirs allowed Bomedco to continue using the land because one of them was then an employee
of the company.8
In support of the complaint, they presented an ancient document ― an original copy of the
deed of sale written in Spanish and dated December 9, 19359 ― to evidence the sale of the
land to Magdaleno Valdez, Sr.; several original real estate tax receipts10 including Real
Property Tax Receipt No. 393511 dated 1922 in the name of Graciano de los Reyes, husband
of Feliciana Santillan, and Real Property Tax Receipt No. 0949112 dated 1963 in the name of
Magdaleno Valdez, Sr. Magdaleno Valdez, Jr. also testified for the plaintiffs during the trial.
On the other hand, Bomedco’s principal defense was that it was the owner and possessor of
Cadastral Lot No. 954, having allegedly bought the same from Feliciana Santillan in 1929, prior
to the sale of the property by the latter to Magdaleno Valdez, Sr. in 1935. It also contended that
plaintiffs’ claim was already barred by prescription and laches because of Bomedco’s open and
continuous possession of the property for more than 50 years.
Bomedco submitted in evidence a Deed of Sale13 dated March 18, 1929; seven real estate
tax receipts14 for the property covering the period from 1930 to 1985; a 1929 Survey Plan of
private land for Bogo-Medellin Milling Company;15 a Survey Notification Card;16 Lot Data
Computation for Lot No. 954;17 a Cadastral Map for Medellin Cadastre18 as well as the
testimonies of Vicente Basmayor, Geodetic Engineer and property custodian for Bomedco, and
Rafaela A. Belleza, Geodetic Engineer and Chief of the Land Management Services of the
DENR, Region VIII.
In its decision dated November 27, 1991, the trial court19 rejected Bomedco's defense of
ownership on the basis of a prior sale, citing that its evidence – a xerox copy of the Deed of
Sale dated March 18, 1929 – was inadmissible and had no probative value. Not only was it not
signed by the parties but defendant Bomedco also failed to present the original copy without
valid reason pursuant to Section 4, Rule 130 of the Rules of Court.20
Nonetheless, the trial court held that Bomedco had been in possession of Cadastral Lot No.
954 in good faith for more than 10 years, thus, it had already acquired ownership of the property
through acquisitive prescription under Article 620 of the Civil Code. It explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT easements can be
acquired by prescription after ten (10) years. The "apparent" characteristic of the questioned
property being used by defendant as an easement is no longer at issue, because plaintiffs
themselves had acknowledged that the existence of the railway tracks of defendant Bomedco
was already known by the late Magdaleno Valdez, herein plaintiffs’ predecessor-in-interest,
before the late Magdaleno Valdez purchased in 1935 from the late Feliciana Santillan the land
described in the Complaint where defendant’s railway tracks is traversing [sic] (TSN of
February 5, 1991, pp. 7-8). As to the continuity of defendant’s use of the strip of land as
easement is [sic] also manifest from the continuous and uninterrupted occupation of the
questioned property from 1929 up to the date of the filing of the instant Complaint. In view of
the defendant’s UNINTERRUPTED possession of the strip of land for more than fifity (50)
years, the Supreme Court’s ruling in the case of Ronquillo, et al. v. Roco, et al. (103 Phil 84) is
not applicable. This is because in said case the easement in question was a strip of dirt road
whose possession by the dominant estate occurs only everytime said dirt road was being used
by the dominant estate. Such fact would necessarily show that the easement’s possession by
the dominant estate was never continuous. In the instant case however, there is clear continuity
of defendant’s possession of the strip of land it had been using as railway tracks. Because the
railway tracks which defendant had constructed on the questioned strip of land had been
CONTINUOUSLY occupying said easement. Thus, defendant Bomedco’s apparent and
continuous possession of said strip of land in good faith for more than ten (10) years had made
defendant owner of said strip of land traversed by its railway tracks. Because the railway tracks
which defendant had constructed on the questioned strip of land had been continuously
occupying said easement [sic]. Thus, defendant Bomedco’s apparent and continuous
possession of said strip of land in good faith for more than ten (10) years had made defendant
owner of said strip of land traversed by its railway tracks.
Respondent heirs elevated the case to the Court of Appeals which found that Bomedco did not
acquire ownership over the lot. It consequently reversed the trial court. In its decision dated
November 17, 1995, the appellate court held that Bomedco only acquired an easement of right
of way by unopposed and continuous use of the land, but not ownership, under Article 620 of
the Civil Code.
The appellate court further ruled that Bomedco’s claim of 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, Bomedco’s 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 declarations constitute strong evidence of ownership of the land occupied by him,25 this legal
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REVERSED AND
SET ASIDE THE TRIAL COURT’S DECISION DISMISSING PRIVATE RESPONDENT’S
COMPLAINT.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT ORDERED THE
PETITIONER TO PAY THE PRIVATE RESPONDENT THE REASONABLE VALUE OF LOT
954 AND THE AMOUNT OF TEN THOUSAND (₱10,000.00) PESOS AS REASONABLE
ATTORNEY’S FEES.
Petitioner Bomedco reiterates its claim of ownership of the land through extraordinary
acquisitive prescription under Article 1137 of the Civil Code and laches to defeat the claim for
compensation or recovery of possession by respondent heirs. It also submits a third ground
originally tendered by the trial court ― acquisition of the easement of right of way by
prescription under Article 620 of the Civil Code.
Extraordinary Acquisitive Prescription
Under Art. 1137 of the Civil Code
Petitioner’s claim of ownership through extraordinary acquisitive prescription under Article 1137
of the Civil Code cannot be sustained.
There is no dispute that the controversial strip of land has been in the continuous possession
of petitioner since 1929. But possession, to constitute the foundation of a prescriptive right,
must be possession under a claim of title, that is, it must be adverse.21 Unless coupled with
the element of hostility towards the true owner, possession, however long, will not confer title
by prescription.22
After a careful review of the records, we are inclined to believe the version of respondent heirs
that an easement of right of way was actually granted to petitioner for which reason the latter
was able to occupy Cadastral Lot No. 954. We cannot disregard the fact that, for the years
1930, 1937, 1949, 1962 and 1963, petitioner unequivocally declared the property to be a
"central railroad right of way" or "sugar central railroad right of way" in its real estate tax receipts
when it could have declared it to be "industrial land" as it did for the years 1975 and 1985.23
Instead of indicating ownership of the lot, 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 person’s actual and adverse possession of the land, tax
precept does not apply in cases where the property is declared to be a mere easement of right
of way.
An easement or servitude is a real right, constituted on the corporeal immovable property of
another, by virtue of which the owner has to refrain from doing, or must allow someone to do,
something on his property, for the benefit of another thing or person. It exists only when the
servient and dominant estates belong to two different owners. It gives the holder of the
easement an incorporeal interest on the land but grants no title thereto. Therefore, an
acknowledgment of the easement is an admission that the property belongs to another.26
Having held the property by virtue of an easement, petitioner cannot now assert that its
occupancy since 1929 was in the concept of an owner. Neither can it declare that the 30-year
period of extraordinary acquisitive prescription started from that year.
Petitioner, however, maintains that even if a servitude was merely imposed on the property in
its favor, its possession immediately became adverse to the owner in the late 1950’s when the
grant was alleged by respondent heirs to have expired. It stresses that, counting from the late
1950’s (1959 as found by the trial court), the 30-year extraordinary acquisitive prescription had
already set in by the time respondent heirs made a claim against it in their letters dated March
1 and April 6, 1989.
We do not think so. The mere expiration of the period of easement in 1959 did not convert
petitioner’s possession into an adverse one. Mere material possession of land is not adverse
possession as against the owner and is insufficient to vest title, unless such possession is
accompanied by the intent to possess as an owner.27 There should be a hostile use of such a
nature and exercised under such circumstances as to manifest and give notice that the
possession is under a claim of right.
In the absence of an express grant by the owner, or conduct by petitioner sugar mill from which
an adverse claim can be implied, its possession of the lot can only be presumed to have
continued in the same character as when it was acquired (that is, it possessed the land only by
virtue of the original grant of the easement of right of way),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 petitioner’s continued use of Cadastral Lot No. 954
so as not to jeopardize the employment of one of their co-heirs in the sugar mill of petitioner.31
The only time petitioner assumed a legal position adverse to respondents’ was when it filed a
claim over the property in 1965 during the cadastral survey of Medellin. Since then (1965) and
until the filing of the complaint for the recovery of the subject land before the RTC of Cebu in
1989, only 24 years had lapsed. Since the required 30-year extraordinary prescriptive period
had not yet been complied with in 1989, petitioner never acquired ownership of the subject
land.
Laches
Neither can petitioner find refuge in the principle of laches. It is not just the lapse of time or
delay that constitutes laches. The essence of laches is the failure or neglect, for an
unreasonable and unexplained length of time, to do that which, through due diligence, could or
should have been done earlier, thus giving rise to a presumption that the party entitled to assert
it had either abandoned or declined to assert it.32
Its essential elements are: (a) conduct on the part of the defendant, or of one under whom he
claims, giving rise to the situation complained of; (b) delay in asserting complainant’s rights
after he had knowledge of defendant’s acts and after he has had the opportunity to sue; (c)
lack of knowledge or notice by defendant that the complainant will assert the right on which he
bases his suit; and (d) injury or prejudice to the defendant in the event the relief is accorded to
the complainant.33
The second element (which in turn has three aspects) is lacking in the case at bar. These
aspects are: (a) knowledge of defendant's action, (b) opportunity to sue defendant after
obtaining such knowledge and (c) delay in the filing of such suit.34
Records show that respondent heirs only learned about petitioner’s claim on their property
when they discovered the inscription for the cadastral survey in the records of the Bureau of
Lands in 1989. Respondents lost no time in demanding an explanation for said claim in their
letters to the petitioner dated March 1, 1989 and April 6, 1989. When petitioner ignored them,
they instituted their complaint before the Regional Trial Court of Cebu City on June 8, 1989.
Petitioner’s reliance on Caro vs. Court of Appeals 35 and Vda. de Alberto vs. Court of Appeals
36 is misplaced. There, laches was applied to bar petitioners from questioning the ownership
of the disputed properties precisely because they had knowledge of the adverse claims on their
properties yet tarried for an extraordinary period of time before taking steps to protect their
rights.
Further, there is no absolute rule on what constitutes laches. It is a rule of equity and applied
not to penalize neglect or sleeping on one’s rights but rather to avoid recognizing a right when
to do so would result in a clearly unfair situation. The question of laches is addressed to the
sound discretion of the court and each case must be decided according to its particular
circumstances.37 It is the better rule that courts, under the principle of equity, should not be
guided or bound strictly by the statute of limitations or the doctrine of laches if wrong or injustice
will result.
It is clear that petitioner never acquired ownership over Cadastral Lot No. 954 whether by
extraordinary acquisitive prescription or by laches.
Acquisition of Easement of Right of Way By
Prescription Under Art. 620 of the Civil Code
Petitioner contends that, even if it failed to acquire ownership of the subject land, it nevertheless
became legally entitled to the easement of right of way over said land by virtue of prescription
under Article 620 of the Civil Code:
Continuous and apparent easements are acquired either by virtue of a title or by prescription
of ten years.
The trial court and the Court of Appeals both upheld this view for the reason that the railroad
right of way was, according to them, continuous and apparent in nature. The more or less
permanent railroad tracks were visually apparent and they continuously occupied the subject
strip of land from 1959 (the year the easement granted by Feliciana Santillan to petitioner
expired). Thus, with the lapse of the 10-year prescriptive period in 1969, petitioner supposedly
acquired the easement of right of way over the subject land.
Following the logic of the courts a quo, if a road for the use of vehicles or the passage of
persons is permanently cemented or asphalted, then the right of way over it becomes
continuous in nature. The reasoning is erroneous.
Under civil law and its jurisprudence, easements are either continuous or discontinuous
according to the manner they are exercised, not according to the presence of apparent signs
or physical indications of the existence of such easements. Thus, 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 else’s land. Like a road for the passage of vehicles
or persons, an easement of right of way of railroad tracks is discontinuous because the right is
exercised only if and when a train operated by a person passes over another's property. In
other words, the very exercise of the servitude depends upon the act or intervention of man
which is the very essence of discontinuous easements.
The presence of more or less permanent railroad tracks does not in any way convert the nature
of an easement of right of way to one that is continuous. It is not the presence of apparent
signs or physical indications showing the existence of an easement, but rather the manner of
exercise thereof, that categorizes such easement into continuous or discontinuous. The
presence of physical or visual signs only classifies an easement into apparent or non-apparent.
Thus, a road (which reveals a right of way) and a window (which evidences a right to light and
view) are apparent easements, while an easement of not building beyond a certain height is
non-apparent.40
In Cuba, it has been held that the existence of a permanent railway does not make the right of
way a continuous one; it is only apparent. Therefore, it cannot be acquired by prescription.41
In Louisiana, it has also been held that a right of passage over another's land cannot be claimed
by prescription because this easement is discontinuous and can be established only by title.42
In this case, the presence of railroad tracks for the passage of petitioner’s trains denotes the
existence of an apparent but discontinuous easement of right of way. And 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.1âwphi1
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 attorney’s fees in the amount of ₱10,000
considering the evident bad faith of petitioner in refusing respondents’ just and lawful claims,
compelling the latter to litigate.44
WHEREFORE, the petition is DENIED. The appealed decision dated November 17, 1995 and
resolution dated March 2, 1996 of the Court of Appeals are AFFIRMED with MODIFICATION.
Petitioner Bogo-Medellin Milling Company, Inc. is hereby ordered to vacate the subject strip of
land denominated as Cadastral Lot No. 954, remove its railway tracks thereon and return its
possession to the private respondents, the heirs of Magdaleno Valdez, Sr. It is also hereby
ordered to pay private respondents attorney's fees in the amount of ₱10,000.
SO ORDERED.
Puno, (Chairman), Panganiban, and Carpio-Morales, JJ., concur.
Sandoval-Gutierrez, J., on official leave.
G.R. No. L-14652 June 30, 1960
JUAN GARGANTOS, petitioner,
vs.
TAN YANON and THE COURT OF APPEALS, respondents.
Jose T. Nery for petitioner.
Constantino P. Tadena for respondents.
GUTIERREZ DAVID, J.:
Juan Gargantos appeals by certiorari from the decision of the Court of Appeals reversing the
judgment of the Court of First Instance of Romblon.
The record discloses that the late Francisco Sanz was the former owner of a parcel of land
containing 888 square meters, with the buildings and improvements thereon, situated in the
poblacion of Romblon. He subdivided the lot into three and then sold each portion to different
persons. One portion was purchased by Guillermo Tengtio who subsequently sold it to Vicente
Uy Veza. Another portion, with the house of strong materials thereon, was sold in 1927 to Tan
Yanon, respondent herein. This house has on its northeastern side, doors and windows over-
looking the third portion, which, together with the camarin and small building thereon, after
passing through several hands, was finally acquired by Juan Gargantos, petitioner herein.
On April 23, 1955, Gargantos applied to the Municipal Mayor for a permit to demolish the
roofing of the 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.
Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L.,
and Barrera, JJ., concur.
G.R. No. 171072 April 7, 2009
GOLDCREST REALTY CORPORATION, Petitioner,
vs.
CYPRESS GARDENS CONDOMINIUM CORPORATION, Respondent.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated September 29, 2005 and the Resolution2 dated
January 16, 2006 of the Court of Appeals in CA G.R. SP No. 79924.
The antecedent facts in this case are as follows:
Petitioner Goldcrest Realty Corporation (Goldcrest) is the developer of Cypress Gardens, a
ten-storey building located at Herrera Street, Legaspi Village, Makati City. On April 26, 1977,
Goldcrest executed a Master Deed and Declaration of Restrictions3 which constituted Cypress
Gardens into a condominium project and incorporated respondent Cypress Gardens
Condominium Corporation (Cypress) to manage the condominium project and to hold title to
all the common areas. Title to the land on which the condominium stands was transferred to
Cypress under Transfer Certificate of Title No. S-67513. But Goldcrest retained ownership of
the two-level penthouse unit on the ninth and tenth floors of the condominium registered under
Condominium Certificate of Title (CCT) No. S-1079 of the Register of Deeds of Makati City.
Goldcrest and its directors, officers, and assigns likewise controlled the management and
administration of the Condominium until 1995.
Following the turnover of the administration and management of the Condominium to the board
of directors of Cypress in 1995, it was discovered that certain common areas pertaining to
Cypress were being occupied and encroached upon by Goldcrest. Thus, in 1998, Cypress filed
a complaint with damages against Goldcrest before the Housing and Land Use Regulatory
Board (HLURB), seeking to compel the latter to vacate the common areas it allegedly
encroached on and to remove the structures it built thereon. Cypress sought to remove the
door erected by Goldcrest along the stairway between the 8th and 9th floors, as well as the
door built in front of the 9th floor elevator lobby, and the removal of the cyclone wire fence on
the roof deck. Cypress likewise prayed that Goldcrest pay damages for its occupation of the
said areas and for its refusal to remove the questioned structures.
For its part, Goldcrest averred that it was granted the exclusive use of the roof deck’s limited
common area by Section 4(c)4 of the condominium’s Master Deed. It likewise argued that it
constructed the contested doors for privacy and security purposes, and that, nonetheless, the
common areas occupied by it are unusable and inaccessible to other condominium unit owners.
Upon the directive of HLURB Arbiter San Vicente, two ocular inspections5 were conducted on
the condominium project. During the first inspection, it was found that Goldcrest enclosed and
used the common area fronting the two elevators on the ninth floor as a storage room. It was
likewise discovered that Goldcrest constructed a permanent structure which encroached 68.01
square meters of the roof deck’s common area.6
During the second inspection, it was noted that Goldcrest failed to secure an alteration approval
for the said permanent structure.
In his Decision7 dated December 2, 1999, Arbiter San Vicente ruled in favor of Cypress. He
required Goldcrest, among other things, to: (1) remove the questioned structures, including all
other structures which inhibit the free ingress to and egress from the condominium’s limited
and unlimited common areas; (2) vacate the roof deck’s common areas and to pay actual
damages for occupying the same; and (3) pay an administrative fine for constructing a second
penthouse and for making an unauthorized alteration of the condominium plan.
On review, the HLURB Special Division modified the decision of Arbiter San Vicente. It deleted
the award for actual damages after finding that the encroached areas were not actually
measured and that there was no evidentiary basis for the rate of compensation fixed by Arbiter
San Vicente. It likewise held that Cypress has no cause of action regarding the use of the roof
deck’s limited common area because only Goldcrest has the right to use the same. The
dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing, the decision of the office [is] modified as follows:
1. Directing respondent to immediately remove any or all structures which obstruct the use of
the stairway from the eighth to tenth floor, the passage and use of the lobbies at the ninth and
tenth floors of the Cypress Gardens Condominium; and to remove any or all structures that
impede the use of the unlimited common areas.
2. Ordering the respondent to pay an administrative fine of ₱10,000.00 for its addition of a
second penthouse and/or unauthorized alteration of the condominium plan.
All other claims are hereby dismissed.
SO ORDERED.8
Aggrieved, Cypress appealed to the Office of the President. It questioned the deletion of the
award for actual damages and argued that the HLURB Special Division in effect ruled that
Goldcrest could erect structures on the roof deck’s limited common area and lease the same
to third persons.
The Office of the President dismissed the appeal. It ruled that the deletion of the award for
actual damages was proper because the exact area encroached by Goldcrest was not
determined. It likewise held that, contrary to the submissions of Cypress, the assailed decision
did not favor the building of structures on either the condominium’s limited or unlimited common
areas. The Office of the President stressed that the decision did not only order Goldcrest to
remove the structures impeding the use of the unlimited common areas, but also fined it for
making unauthorized alteration and construction of structures on the condominium’s roof
deck.9 The dispositive portion of the decision reads:
WHEREFORE, premises considered, the appeal of Cypress Gardens Corporation is hereby
dismissed and the decision of the Board a quo dated May 11, 2000 is hereby AFFIRMED.
SO ORDERED.10
Cypress thereafter elevated the matter to the Court of Appeals, which partly granted its appeal.
The appellate court noted that the right of Goldcrest under Section 4(c) of the Master Deed for
the exclusive use of the easement covering the portion of the roof deck appurtenant to the
penthouse did not include the unrestricted right to build structures thereon or to lease such
area to third persons. Thus the appellate court ordered the removal of the permanent structures
constructed on the limited common area of the roof deck. The dispositive portion of the decision
reads:
WHEREFORE, the petition is PARTIALLY GRANTED. The Decision of the Office of the
President dated June 2, 2003 is hereby AFFIRMED with modification. Respondent Goldcrest
Realty Corporation is further directed to remove the permanent structures constructed on the
limited common area of the roof deck.
SO ORDERED.11
The parties separately moved for partial reconsideration but both motions were denied.
Hence this petition, raising the following issues:
I.
[WHETHER OR NOT] THE APPELLATE COURT ERRED IN RULING THAT GOLDCREST
BUILT AN OFFICE STRUCTURE ON A SUPPOSED ENCROACHED AREA IN THE OPEN
SPACE OF THE ROOF DECK.
II.
[WHETHER OR NOT] THE APPELLATE COURT ERRED IN RULING THAT PETITIONER
IMPAIRED THE EASEMENT ON THE PORTION OF THE ROOF DECK DESIGNATED AS A
LIMITED COMMON AREA.12
Anent the first issue, Goldcrest contends that since the areas it allegedly encroached upon
were not actually measured during the previous ocular inspections, the finding of the Court of
Appeals that it built an office structure on the roof deck’s limited common area is erroneous
and that its directive "to remove the permanent structures13 constructed on the limited common
area of the roof deck" is impossible to implement.
On the other hand, Cypress counters that the Court of Appeals’ finding is correct. It also argues
that the absence of such measurement does not make the assailed directive impossible to
implement because the roof deck’s limited common area is specifically identified by Section
4(c) of the Master Deed, which reads:
Section. 4. The Limited Common Areas. Certain parts of the common areas are to be set aside
and reserved for the exclusive use of certain units and each unit shall have appurtenant thereto
as exclusive easement for the use of such limited areas:
xxxx
(c) Exclusive use of the portion of the roof deck (not shaded red in sheet 10 of Annex "B") by
the Penthouse unit on the roof deck.14
xxxx
We rule in favor of Cypress. At this stage of the proceedings, the failure to measure the
supposed encroached areas is no longer relevant because the award for actual damages is no
longer in issue. Moreover, a perusal of the records shows that the finding of the Court of
Appeals that Goldcrest built an office structure on the roof deck’s limited common area is
supported by substantial evidence and established facts, to wit: (1) the ocular inspection reports
submitted by HLURB Inspector Edwin D. Aquino; (2) the fact that the second ocular inspection
of the roof deck was intended to measure the actual area encroached upon by Goldcrest;15
(3) the fact that Goldcrest had been fined for building a structure on the limited common area;16
and (4) the fact that Goldcrest neither denied the structure’s existence nor its encroachment
on the roof deck’s limited common area.
Likewise, there is no merit in Goldcrest’s submission that the failure to conduct an actual
measurement on the roof deck’s encroached areas makes the assailed directive of the Court
of Appeals impossible to implement. As aptly pointed out by Cypress, the limited common area
of the roof deck is specifically identified by Section 4(c) of the Master Deed.
Anent the second issue, Goldcrest essentially contends that since the roof deck’s common
limited area is for its exclusive use, building structures thereon and leasing the same to third
persons do not impair the subject easement.lawphil.zw+
For its part, Cypress insists the said acts impair the subject easement because the same are
already beyond the contemplation of the easement granted to Goldcrest.
The question of whether a certain act impairs an easement is undeniably one of fact,
considering that its resolution requires us to determine the act’s propriety in relation to the
character and purpose of the subject easement.17 In this case, we find no cogent reason to
overturn the similar finding of the HLURB, the Office of the President and the Court of Appeals
that Goldcrest has no right to erect an office structure on the limited common area despite its
exclusive right to use the same. We note that not only did Goldcrest’s act impair the easement,
it also illegally altered the condominium plan, in violation of Section 2218 of Presidential Decree
No. 957.19
The owner of the dominant estate cannot violate any of the following prescribed restrictions on
its rights on the servient estate, to wit: (1) it can only exercise rights necessary for the use of
the easement;20 (2) it cannot use the easement except for the benefit of the immovable
originally contemplated;21 (3) it cannot exercise the easement in any other manner than that
previously established;22 (4) it cannot construct anything on it which is not necessary for the
use and preservation of the easement;23 (5) it cannot alter or make the easement more
burdensome;24 (6) it must notify the servient estate owner of its intention to make necessary
works on the servient estate;25 and (7) it should choose the most convenient time and manner
to build said works so as to cause the least convenience to the owner of the servient estate.26
Any violation of the above constitutes impairment of the easement.
Here, a careful scrutiny of Goldcrest’s acts shows that it breached a number of the
aforementioned restrictions. First, it is obvious that the construction and the lease of the office
structure were neither necessary for the use or preservation of the roof deck’s limited area.
Second, the weight of the office structure increased the strain on the condominium’s foundation
and on the roof deck’s common limited area, making the easement more burdensome and
adding unnecessary safety risk to all the condominium unit owners. Lastly, the construction of
the said office structure clearly went beyond the intendment of the easement since it illegally
altered the approved condominium project plan and violated Section 427 of the condominium’s
Declaration of Restrictions.28
WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision dated
September 29, 2005 of the Court of Appeals in CA G.R. SP. No. 79924 is hereby AFFIRMED.
Costs against the petitioner.
SO ORDERED.
G.R. No. 72837 April 17, 1989
ESTER JAVELLANA, ROLANDO DEMAFILES, CESAR CRUZADA and ANTONIO SISON,
petitioners,
vs.
HON. INTERMEDIATE APPELLATE COURT, 4th CIVIL CASES DIVISION, MARSAL & CO.,
INC., and MARCELINO FLORETE, SR., respondents.
PARAS, J.:
Before Us is a Petition for certiorari to review the Decision 1 dated August 14,1985 promulgated
by respondent Intermediate Appellate Court in AC-G.R. C.V. No. 03781 which set aside the
decision 2 rendered by the Regional Trial Court, 6th Judicial Region, Branch XXVI, Iloilo City,
dated December 15, 1983 in Civil Case No. 12791.
The case at bar arose from a complaint for recovery of damages filed by Marsal & Co., Inc.
and Marcelino Florete, Sr. (private respondents herein) against defendants Jose C. Hernani,
Ester J. Javellana, Rolando Demafiles, Cesar Crusada and Antonio Sison for allegedly denying
plaintiffs' access to, and use of a canal leading to plaintiffs' property and to enjoin the City
Mayor and City Engineer of Iloilo City from demolishing the existing structures within plaintiffs
property serving as dike entrance gate to said canal situated at Barangay Navais, Mandurriao,
Iloilo City. Before the pre-trial conference the complaint as against the City Mayor and City
Engineer, was dismissed at the instance of plaintiffs on the ground that said defendants had
agreed not to demolish the pendency of the action.
At the pre-trial conference, on June 5,1979 the parties stipulated:
... (1) that plaintiff Marsal & Co., Inc., is presently the owner of the parcel of land adjoining the
Iloilo River up to and adjacent the lot where the L. Borres Elementary School is located at
Barangay Navais Mandurriao, Iloilo; (2) that in 1961, when Marcelino Florete, Sr. was still the
owner of said Marsal property having acquired the same by purchase from its former owners
sometime in 1959, there existed a main canal from the Iloilo River cutting across said property
towards the lot where the said school is located and thru a canal that traverses the school
premises going towards Lot 2344; (3) that sometime in July 1978, plaintiffs closed the dike
entrance of the main canal to the canal running across the L. Borres Elementary School
premises to Lot 2344; (4) that on petition of school P.T.A. officials of Barangay Navais, an
ocular inspection of the premises was made as a result of which a report dated November 7,
1978 was prepared and submitted by 2nd Asst. City Fiscal Serafin Abogado; (5) that before
1971, there were no houses standing within the school compound and premises of L. Borres
Elementary School; (6) that at present, there are 15 to 16 houses in the said school compound
one of which is the house of the barangay captain of Barangay Navais; (7) that some of those
who signed the petition (Exh. "7") are not residents or occupants of the houses within the school
compound; (8) that the photograph (Exh. "A") is the aerial photograph of the premises in
question showing the location of the L. Borres Elementary School, the properties of the
plaintiffs, the Iloilo River and the Borres property; (9) that the plaintiffs had demolished the dike
connecting the main canal in plaintiffs' property with the canal running thru the school premises
toward 2344; and (10) that defendant Director Jose C. Hernani had invited plaintiff Marcelino
Florete, Sr. for conference concerning the complaint of the residents of Barangay Navais on
July 28, and 31, 1978 as per Exhs. "9" and "10" (pp. 35-36, Rollo)
The issues as defined by the parties are:
(1) Whether or not them main canal and the canal traversing the premises of the L. Borres
Elementary School going towards Lot 2344 existing only beginning 1961 as claimed by the
plaintiffs or since time immemorial as contended by the defendants; (2) Whether or not it was
plaintiff Marcelino Florete, Sr. who had constructed the main canal as well as the canal running
thru the premises of the L. Borres Elementary School to Lot 2344; (3) Whether or not the closing
of the dike entrance connecting the main canal with the canal running thru the school premises
caused the flooding of the premises of L. Borres Elementary School and its vicinity; (4) whether
or not an easement or servitude of water-right-of-way was constituted on the property of the
plaintiffs as servient estate in favor of the L. Borres Elementary School land and nearby lands
as dominant estates; (5) Whether or not defendants acted in their respective private or official
capacities in dealing with the problem related to the canals in question; (6) Whether or not the
defendant Ester Javellana had denied plaintiffs the use of the canal running from the main
canal thru the school premises to Lot 2344 of the plaintiffs; (7) Whether or not the demolition
or closure by plaintiffs of the entrance-dike connecting the main canal with the canal running
thru the L. Borres Elementary School preventing the free flow of water to and from the school
premises and vicinity violates the provisions of Presidential Decree 296; and (8) Whether or
not either party may be held liable to the other for damages. (Rollo, pp. 35-37)
After due trial, judgment was rendered by the trial court, the dispositive portion reading as
follows:
WHEREFORE, judgment is hereby rendered dismissing plaintiffs' complaint.
On defendants' counterclaim, the plaintiffs are hereby ordered to restore and reopen the dike
entrance connecting the main canal with the canal running thru the premises of L. Borres
Elementary School and to demolish any and all structures within plaintiffs' property that impede
the free flow of water to and from the Iloilo River thru the said canals.
Further, plaintiffs Marsal & Co., Inc. and Marcelino Florete, Sr. are hereby ordered to pay, jointly
and severally, each of the defendants, Jose C. Hernani, Ester J. Javellana, Rolando Demafiles,
Cesar Cruzada and Antonio Sison, the following sums, to wit: (1) P10,000.00 for moral
damages and (2) P2,500.00 for exemplary damages and (3) P2,500.00 for and as attorney's
fees of the total sum of P15,000.00 each, plus costs.
SO ORDERED.
(P. 46, Rollo)
Not satisfied with said judgment, plaintiffs appealed to the Intermediate Appellate Court which
rendered the assailed decision, its dispositive portion stating as follows:
WHEREFORE, finding the decision appealed from not consistent with the facts and the law
applicable, the same is hereby set aside and another one entered-
1. Granting the issuance of the writ of preliminary injunction sought in the complaint to become
permanent upon the finality of this decision;
2. Ordering the defendants-appellees to respect plaintiffs' rights and to refrain from demolishing
and/or causing the demolition of the dikes built by plaintiff (Florete, Sr.) on his property;
Costs de oficio.
SO ORDERED. (pp. 57-58, Rollo)
Petitioners contend that the decision of the Appellate Court is contrary to law, its conclusions
based entirely on speculations and conjectures and there is grave abuse of discretion in that
the findings of fact are without competent evidence to support them. Petitioners argue that the
respondent Appellate Court erred in holding:
I The Court, indeed, finds no reason to doubt the testimonies of these witnesses not only
That the canal in question was built by plaintiff-appellant purposely to make water available to
its own Lot 2344. (Decision, p. 8)
II
That the plaintiff-appellant is the one that has the right of easement upon the lot occupied by
the barrio school. Plaintiff-appellant is thus the dominant estate and not the L. Borres
Elementary School. (Decision, p. 8)
III
That the school, in violation of the said easement, allowed other parties to use the canal for
salt production in competition with the salt business of plaintiff-appellant which is conducted in
Lot 2344. (Decision, p. 8)
IV
That the canal which traverses plaintiff's property never benefitted the school. It was only after
plaintiff built the canal starting from its fishpond up to its other property that the school benefited
from the water coming from the river. (Decision, p. 10)
V
That aside from the plaintiff's property there is another parcel of land which is more than
adequate to provide the drainage sought by the defendants and this is the Borres property.
(Decision, p. 10)
The petition is worthy of consideration. In the Appellate Court's decision, it is noted that said
court relied heavily on the findings of facts of the trial court even to the extent of quoting such
findings in its decision in support of its ruling. However, the conclusions reached by both courts
were different. Petitioners now question the correctness of the conclusions drawn by the
respondent Court of Appeals from the proven facts enumerated by the trial court. This
determination as to the correctness of the conclusions drawn from the pleadings is a question
of law which this Court is authorized to pass upon. There is no question of fact here because
the facts are admittedly proven. Said facts are reproduced hereunder:
The Court finds from the evidence that the main canal had been in existence long before
defendant Marcelino Florete, Sr. acquired ownership of the land thru which the same passes
from the Iloilo River up to the premises of what is now known as the L. Borres Elementary
School. This fact was clearly brought to light by the testimonies of at least three witnesses,
including a member of the Maranon family from whom Florete, Sr. acquired the land, in addition
to the testimony of defendant Antonio Sison, Barangay Captain of Barangay Navais where the
subject canal is situated.
because they ring true throughout but also because the same emanate from reliable sources
who had been actual residents of the place, having had occasions to take their bath in the
same canal and with separate individual experiences incident thereto to relate.
Severo Maranon, a public school teacher and one of the children of the late Buenaventura
Maranon, a co-owner of the fishpond purchased by plaintiff Florete, Sr. testified that as early
as 1948, when he was about 6 years old, he already knew the subject canal that passes thru
their fishpond at Barangay Navais from the Iloilo River towards the premises of the school. On
one occasion in 1954, while taking a bath in this canal when still a young boy, he nearly
drowned, reasons for which he has not forgotten the said canal.
Another witness, Ignacio Gencianeo, 75, a former employee of the Bureau of Public Highways,
testified that when he was still single, being a resident of Barangay Navais, he used to take a
bath in the canal near the Iloilo River which is deeper than the other portions. He recalled an
incident where a woman, named Toribia Tajaon, while picking shells at the sides of the dikes,
fell into the canal and nearly got drowned had he not helped her. He last took a bath in the
canal in 1937 before he got employed at the Bureau of Public Highways.
Witness Gencianeo also testified that he was then the Barrio Captain of Navais when the Barrio
School was constructed in 1940 on the land owned by Lucas Borres.
Francisco Regacho, 56, testifying for the defendants, declared that in 1948, his house was
located beside the canal near the Iloilo River and the land thereat was then owned by
Buenaventura Maranon. When the barrio school was constructed in 1940, he worked filling
sand on the school site. He was able to lease the school fishpond from 1973 to 1977. This
fishpond draws its supply of salt water from the canal coming from the Iloilo River. He had
previously worked this main canal in 1948 as part of his job in the fishpond of Buenaventura
Maranon fixing its dikes in order to make water flow freely towards the fishpond of the Maranon
family.
Witness Regacho further declared that when defendant Marcelino Florete, Sr. became owner
of this Maranon fishpond, he was able to work on this canal where he dug the canal deeper up
to Florete's land. He testified that during high tide the water in the canal was only about 1/2
meter deep and there was no water during low tide and so Florets made the canal deeper.
Regacho also testified that there are two canals within the school premises, one going towards
the land of Florete and the other to the land of Mirasol. These two canals met at the place
where Florete closed the canal. The canal going towards Florete's land and that to Mirasol's
land serve to empty rainwater to the Iloilo River. He further confirmed that the school fishpond
has no other source of salt water except from the canal that connect to the main canal that
starts from the Iloilo River.
For his part, defendant Antonio Sison, 54, testified that he was born in Barangay Navais and
has been its barangay captain since 1954 continuously up to the present. He first noticed the
existence of the canal in 1933 when he reached the age of reason at the age of 8 years, said
canal being about 300 meters long from the Iloilo River going towards the premises of the barrio
school and to the land now known as Lot 2344 owned by Marcelino Florete. He also used to
take a bath in this canal when still a small boy.
Defendant Sison further declared that the brothers Pedro and Buenaventura Maranon were
then the owners of the fishpond along which the canal runs starting from the Iloilo River towards
the school premises when the Maranons sold the land to Florete sometime in 1959. Florete
was not the one who constructed the canal but only made the same deeper.
This construction of Florete took place in 1961 when Sison was also the barangay captain. He
recalled Francisco Regacho was one of those who worked in making the canal deeper at the
instance of Florete and that no employee from the City Engineer's Office inspected the canal
during its repair undertaken by Florete and where Alfredo Emboltorio, as the one who managed
the work in the canal.
Defendant Sison went to see Pedro Maranon, who was once a co-owner of the land where the
main canal passes, to request him to testify but the latter begged off by reason of his health
and old age and, instead, executed an affidavit dated May 14, 1979 (Exh. "8") certifying to the
effect that "since before the war until we sold the said land to Marcelino Florete, there exists a
canal from the Iloilo River cutting our property down towards the lot where the school is located
and thru a canal that traverses the school premises. (par. 4. Exh. "8")
It is thus clear from the testimonies of defendants' witnesses that the main canal starting from
the Iloilo River and the canal traversing the premises of the L. Borres Elem. School going
toward lot 2344 existed long before defendant Florete, Sr. acquired ownership of the land of
the Maranons and that, if at all, Florete merely caused to be made deeper that portion
traversing the school premises.
No less than the defendants' evidence itself proved the existence of the main canal. Thus, in
his letter dated June 26,1961 embodied in Resolution No. 715 dated June 27,1961 of the
Municipal Board of the City of Iloilo (Exh. "B") defendant Florete Sr. asked that he be allowed
to build a canal within the premises of the barrio school up to his Lot 2344. It is not, therefore,
a permit to build a canal from the Iloilo River for otherwise, Florete would have so stated in his
said letter to the Board. This is so because there already existed a main canal from the Iloilo
River. The canal traversing the school premises was likewise then already existing but not so
deep that Florete wanted it constructed to be permanent. And in making this canal deeper, he
started not from the Iloilo River but from his fishpond adjoining the school premises towards
his lot 2344, Florete testified thus:
Q. (Court) - From what point did you start?
A From our fishpond traversing the Borres Elementary and then going to our lot. (TSN, July 5,
1979, page 22).
Defendants presented in evidence a blueprint copy of the Cadastral Map. B. L. No. 3 (Exh. "F")
to show that no natural waterway or creek existed in the pre that connected the Iloilo River to
the fishpond premises. But this piece of evidence was rendered without any probative value
when plaintiffs also presented Teodoro Simpas, Chief of the Surveys Division of the Bureau of
Lands, Region IV, who testified that creeks and esteros are delienated in the cadastral map
only if they are five (5) or more meters wide and, even less than five (5) meters wide, if there
is continuous flow of water is to be determined by the surveyor who made the survey.
Here, it has been duly established that the canal in question starting from the Iloilo River is only
about 3 meters wide for the first 100 meters long and then measures about 2 meters wide until
it reaches Lot 2344 with a length of about 200 meters. And it has been shown that salt water
coming from the Iloilo River flows in the canal during high tide where the water in the main
canal reaches about one-half meter and about two (2) feet in the canal that traverses the school
premises. In ordinary days, no water flows in the canal that cuts a the school premises . This
explains why the canal in question was not indicated in the cadastral map during the 1913
survey. The canal is less than 5 meters wide and did not have a continuous flow of water except
during high tide and during rainy season where it serves as drainage and empties flood waters
into the Iloilo River.
Defendants' closure of the dike's entrance connecting the main canal with the canal running
thru the school premises, therefore, caused the flooding of the premises of the L. Borres
Elementary School and its vicinity. This is so because during rainy season, said canal also
serves as outlet of rain or flood waters that empties to the Iloilo River. Witnesses Ignacio
Gencianeo, Francisco Regacho, Severo Maranon and Barangay Captain Antonio Sison were
unanimous in declaring so.
In his attempt to show that the closing of the dike entrance of the canal did not cause the
flooding of the school premises and its vicinity, plaintiffs' witnesses Modesto Emboltorio,
declared that flood in the school fishpond immediately disappears because water recedes to
the Borres property. But it has been shown that the adjacent Borres property is higher in
elevation compared to the school premises such that water in the school premises cannot flow
towards that area. And because water has no other way out except thru the canal, the school
premises and its vicinity get flooded once it rains and flood waters remain stagnant for days as
shown by the photographs exhibits "3" and "3-A" taken on August 24,1978 and Exhibits "10"
and "10-A" taken on August 15, 1979. The said photographs Exhibits "l 0" and "10-A" belied
Emboltorio's testimony that there were no flood waters in that area when he testified in Court
in the morning of August 14, 1979.
That the premises of the school and its vicinity were flooded when it rained during the rainy
season of 1978 immediately after the closing of the dike entrance of the canal is further shown
by the report (Exh. "4") dated September 3, 1978 submitted by Carlos G. Brasileno, Asst.
Complaint & Acting Officer, Barangay City secretariat and the 6th Indorsement (Exh. "'I") dated
November 7,1978 of 2nd Asst. City Fiscal Serafin L. Abogado. These two officials were with
the government teams that conducted ocular inspection of the place upon complaint of the
residents therein and they actually saw for themselves the flooded situation of the place caused
by plaintiffs' closure of the dike entrance of subject canal.
To be sure, the defendants acted in their official capacities in dealing with the problem related
to the canals in question. It has been sufficiently established that the school fishpond gets its
supply of salt water directly from the Iloilo River passing thru the canal that traverses the school
premises. Likewise, the residents of the place produce salt thru the use of plastic sheets using
salt water drawn from the canal. Salt water in this canal is fresh and clean as the tide changes
from the Iloilo River unlike in the fishpond nearby which is stagnant and polluted and not
suitable for salt- making.
The closure of the dike entrance of the canal deprived the school fishpond as well as the
residents of the place of salt-water and placed the premises of the school and the surrounding
vicinity in danger of being flooded when it rains so that the school officials, the defendants Ester
Javellana, as district supervisor, Cesar Cruzada as head teacher and Rolando Demafiles as
practical arts teacher and the barangay captain, Antonio Sison only did what were incumbent
upon them to do as such school and barangay officials when they complained to higher
authorities about the plaintiffs' closure of the canal in question.
Indeed, there is no showing that the defendants school officials were motivated by their own
personal interests when they complained against plaintiffs' action vis-a-vis the canal. Their
effort were all directed towards the benefit of the school as well as for the school children who,
in one way or another, had been adversely affected by the closure of the canal. These officials
did not act privately for themselves but for public good and public interest. They expected no
personal benefit in return.
The same is true with the defendant barangay captain Antonio Sison who merely complied with
his duty extending assistance to the residents of bringing their complaint to the authorities
concerned. It was his duty to attend to the needs and problems of his barangay and its
residents. The closure of the canal did not only deprive the residents of salt water for salt-
making but also posed danger to them as in fact, during the ensuing rainy days in August of
1978, the place was flooded thus endangering the health and safety of the residents therein.
Then, too, defendant Col. Jose Hernani only did his duty as head of the Office of Civil Defense
in attending to the complaint of the residents of the place. His office has jurisdiction over cases
of calamity, flood and the like such that it was but proper, nay obligatory, on his part to act on
their complaint against the closure of the canal that caused flood in Barangay Navais
The fact is that plaintiffs are without any justifiable reason to close the canal. Defendants
advanced that the district supervisor, defendant Ester Javellana, wrote Marcelino Florete Sr. a
letter allegedly denying his use of the canal that traverses the school premises reason for which
he closed the dike entrance and built an underground canal on the other side of his property
going to his Lot 2344. But defendant Javellana explained that there was no such denial. What
she meant when she wrote the letter to Marcelino Florete, Sr. was that plaintiffs could not lay
pipes underneath the canal. Defendant Ester Javellana testified thus:
Q Could you inform the Hon. Court Mrs. Javellana what impelled you to write Mr. Florete this
letter?
A My head teacher informed that they were going to lay or buy a 10 inch pipe in the canal which
crosses the school that canal to my office one morning Feb. 22. Industrial Arts Teacher Mr.
Rolando Demafiles and the Head Teacher, Mr. Cesar Cruzada. They were excited. There was
already a 10 inch rubber tube running from Iloilo River crossing to the school to the bed of Mr.
Florete. That they intend to bury and so I accompanied them to L. Borres Elementary School
and saw for myself that there really was a 10 inch or 8 inch rubber pipe running across the
school and was about to be buried.
Q Why? Can you explain what would be the disadvantage if Mr. Florete bury those pipes on
the canal that traverses the school?
A The school maybe deprived of the water for their fishpond, that is one and the second,
drainage canal which drains the school in case of flood will not be working anymore.

Q Now, in your letter, you mentioned here and I read quote: Please sit down with us with Mr.
Borres because this lot of the school still belongs to Mr. Borres and the Division Office denies
your right of way, my question is what do you mean when you say that the Division Office
denied your right of way?
A I meant they cannot bury a pipe depriving the school of the water because the land does not
belong to us yet. In other words, the land does not belong to L. Borres Elementary School
although it is supposed to be donated by L. Borres
Q But when you wrote this letter Mrs. Witness, did you really stop or prohibit Mr. Florete from
continuing the use of the canal?
A No sir. (TSN, Oct. 17, 1979, pp. 5-6)
Mrs. Javellana sent that letter-invitation when she came to know that water pipes were about
to be laid underground by plaintiffs in lieu of the open canal. Plaintiff Florete Sr., however, did
not come to the conference nor sent any word or representative. Nor did he attend to all other
subsequent invitations related to the canal although he knew said invitations or conference
conducted by the government offices concerned.
As heretofore stated, the main canal had long been in existence even before plaintiff Marcelino
Florete Sr. acquired ownership of the fishpond of the Maranons thru which the same passes.
This canal served as passage of salt water from Iloilo River to the school fishpond and at the
same time, as outlet and drainage canal or channel of rainwater from the school premises and
adjacent lands that empties to the Iloilo River. An easement or servitude of water-right of way
had thus been constituted on the property of the plaintiffs as the servient estate in favor of the
L. Borres Elementary School land and the nearby lands as the dominant estates.
Even on the assumption that it was plaintiff Florete Sr. who constructed the subject canal in
1961, an easement or servitude of water-right-of-way had nonetheless been constituted on
subject property because since then the same had been in continuous use for no less than
fifteen (15) years — by the school fishpond as well as by the adjacent lands. A positive
easement (Art 616, New Civil Code) had thereby been created and plaintiffs have no right to
terminate it unilaterally without violating Art. 629 of the New Civil Code which provides:
Art. 629: The owner of the servient estate cannot impair, in any manner whatsoever, the use
of the servitude.
Nevertheless, if by reason of the place originally assigned or of the manner established for the
use of the easement, the same should become very inconvenient to the owner of the servient
estate, or should prevent him from making any important works, repairs or improvements
thereon, it may be charged at his expense, provided he offers another place or manner equally
convenient and in such a way that no injury is caused thereby to the owner of the dominant
estate or to those who may have a right to the use of the easement.
Plaintiffs, however, did not recognize, much less, follow the above-quoted law on easement.
They closed the entrance of the canal and demolished portions of the main dike thus impairing
the use of the servitude by the dominant estate. And by so doing, plaintiffs violated not only the
law on easement but also Presidential Degree No. 296 which enjoins any person, natural or
juridical, to demolish structures or improvements which tend to obstruct the flow of water
through rivers, creeks, esteros and drainage channels. For this canal did not serve merely to
supply salt water to the school fishpond but also serves as drainage charged or channel of
rainwater from adjacent lands to the Iloilo River.
Before the canal was closed, the residents had not experienced any flood in the area or in the
school premises. It was only after the canal was closed by plaintiffs on July 25, 1978, that the
residents began to experience flood in the school premises particularly in the month of August
every year thereafter when rainy season comes. Rainwater from adjoining areas accumulate
at the school premises without any chance of going out. Flood waters remain stagnant for days
and became filthy and veritable breeding place of mosquitoes.
Plaintiffs claimed that they closed the canal because the residents of the place threw waste
matter and garbage into the canal and so the waters therein were dirtied and rendered totally
unsanitary for human use, particularly for salt-making. But this claim was belied by defendants'
showing that what motivated plaintiffs to close the canal was the fact that the residents engaged
in salt-making using plastic bags and thus, somehow, competed with plaintiffs in the production
of salt in the area. At any rate, regardless of what motivated plaintiffs into closing the canal, the
fact is that plaintiffs act ran roughshod over the aforequoted provisions of law on easement and
transgressed Presidential Decree No. 296.
On the issue of damages, therefore, the court is of the view and so holds that plaintiffs are
liable to the defendants for moral damages, attorney's fees and costs of litigation. It is bad
enough that plaintiffs, after closing the canal and thus depriving the school fishpond and
residents of the place salt water from the Iloilo River and impeding the flow of rain and flood
waters from the school premises and adjacent lands to said river during rainy season,
unjustifiably refused and failed to heed defendants' plea for them to reopen said canal. Worse,
plaintiffs instituted the present action against the defendants and dragged the latter into a court
suit that occasioned upon them worries, serious anxiety, fright and mental anguish. No doubt,
the defendants were vexed to the utmost to find themselves faced with a court suit when what
they did was only to do what was incumbent upon them to do as public officials committed to
serve public interest and welfare. What is more, they were forced to secure the service of a
private counsel as they were sued also in their private capacities.
It is quite evident that plaintiffs filed the present action in bad faith to preempt whatever
appropriate legal action the authorities could take under the circumstances aware, as they
were, that no less than the offices of the City Fiscal of Iloilo and the City Barangay Secretariat,
after conducting ocular inspection of the place together with other government functionaries
tasked with promoting the health, safety and welfare of the people in the area, recommended
immediate appropriate action aimed at reopening the canal.
The damages that could be adjudged in this case are, however, limited only to the herein
defendants. It may be that the school fishpond was damaged and the school PTA suffered
actual damages in the form of lost income therefrom. And so with the school children and
residents of the place reason for which defendants pray that they should be compensated. But
they are not parties to this case hence, damages could not be awarded to them. (pp. 37-46,
Rollo)
After a careful reading of the aforementioned findings of the trial court, there is no question that
the two subject canals had been in existence long before plaintiff Florete bought his land from
the Maranons. Respondent appellate court cannot now disown it after quoting with approval in
the body of its decision the findings of the trial court. This brings Us to the determination of the
other issue namely: which of the two (2) estates is the dominant or servient estate, an issue
which hinges upon the conclusion reached by the trial court that the canals were in existence
long before Florete Sr. had acquired that property from the Maranons. It has been established
that the main canal which is traversing the property of Florete served as the passage of salt
water from the Iloilo River to the school fishpond and at the same time, as an outlet and
drainage canal or channel of rainwater from the school premises and adjacent lands that empty
into the Iloilo River. Even assuming that it was plaintiff Florete Sr. who constructed the subject
canal in 1961, an easement of water-right of way had already been constituted on the property
of the plaintiffs as the servient estate in favor of the L. Borres Elementary School premises and
the nearby lands as the dominant estates. Private respondents thus violated Art. 629 of the
Civil Code when they closed the entrance of the canal and demolished portions of the main
dike thus impairing the use of the servitude by the dominant estates. The findings of the trial
court are amply supported by a careful and exhaustive consideration of all available
documentary and oral evidence including ocular inspections as it was in the best position to do
so. Its legal conclusions are likewise unassailable. In view of the well-settled rule that this Court
is not a trier of facts, We find no plausible reason not to sustain the trial court in its findings of
fact and the legal conclusions drawn from these findings.
WHEREFORE, premises considered, the assailed decision of the respondent appellate court
is hereby REVERSED and SET ASIDE, and the judgment of the Regional Trial Court in Civil
Case No. 12791 is hereby REINSTATED.
SO ORDERED.
Melencio-Herrera (Chairperson), Padilla, Sarmiento and Regalado, JJ., concur.
G.R. No. L-66520 August 30, 1988
EDUARDO C. TAÑEDO, 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.
Numeriano F. Capangpangan for petitioner.
Meinrado P. Parades for private 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.
Tañedo. 1
Antonio Cardenas, on that same day, also mortgaged Lot 7501-B to said Eduardo C. Tañedo
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 Tañedo 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 Tañedo 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 Tañedo offered to redeem the property from
Romeo Sim. But the latter refused. Instead, Romeo Sim blocked the sewage pipe connecting
the building of Eduardo Tañedo built on Lot 7501-A, to the septic tank in Lot 7501-B. He also
asked Tañedo to remove that portion of his building enroaching on Lot 7501-B. As a result,
Eduardo Tañedo, 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 Tañedo 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 Tañedo.
6 3. That by written agreement, plaintiff and defendant spouses Antonio Cardenas and Mae
Antonio Cardenas, upon the other hand, admitted that he had agreed to sell Lot 7501-B to
Eduardo Tañedo 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
Tañedo 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 Tañedo. 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 Tañedo 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:
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
Tañedo 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 Tañedo 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 Tañedo'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 Tañedo. 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.
Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.
G.R. No. L-22733 September 25, 1968
SALVADOR BENEDICTO (deceased). ROBERTO S. BENEDICTO, petitioner,
vs.
COURT OF APPEALS and VICENTE A. HERAS, respondents.
San Juan, Africa & Benedicto for petitioner.
Luis A. Dayot for respondents.
CASTRO, J.:
This case which orginated in the Court of First Instance of Manila was an action by the
respondent Vicente A. Heras to recover a portion of land enclosed and walled by the petitioner
Salvador Benedicto, and to demand the reopening of an easement of way between his real
property and that of the petitioner.
The facts, in the language of the stipulation of the parties, are:
1. The adjoining properties of the plaintiff [Heras] and the defendant [Benedicto] formerly
belonged to one owner, MIRIAM R. HEDRICK, consisting of Lots Nos. 8, 9, 10, 22, 23, and 24
of Survey Plan RS-219, G. L. R. O. Record No. 662, as surveyed for Henry M. Jones, et al. on
June 26, 1912 by C. R. Maris, Bureau of Lands Surveryor and appproved by the Director of
Lands on July 20, 1912, containing an area of 1307.3 sq. mts. covered by TCT No. 3623 of the
Registry of Deeds of the City of Manila, whose technical description as set forth in said TCT
No. 3623 is hereto attached as Annex "A".
2. On Septebmer 29, 1917, the said MIRIAM R. HEDRICK sold a portion of the above described
property, particularly Lots Nos. 8, 9, 22 and 23 to CLARO M. RECTO, and retained for herself
Lots Nos. 10 and 24. A copy of the Escritura de Compra-Venta in favor of Claro M. Recto is
attached hereto and made a part hereof as Annex "B".
3. At the time of the sale, the following buildings were located on the respective properties of
Claro M. Recto and Miriam R. Hedrick as described in the Escritura de Compra-Venta (annex
"B"), to wit:
"SEGUNDO. Que sobre las parcelas 2a (Lote No. 9) y 3a (Lote No. 10) se hallan levantados
dos edificios (Chalets) de igual estructura, extencion configuracion y volumen, construidos
ambos de concreto y otras materiales fuertes, y sobre las parcelas 5a (Lote No. 23) y 6a (Lote
No. 24), las respectivas dependencias de dichos dedificios."
For the purpose of showing the respective locations of said buildings, a photostatic copy of
Sheet No. 2 of the Cadastral Plan of the Manila Cadastral Survey, Case No. 59, is hereto
attached and made part hereof as Annex "C". This Cadastra lPlan (Annex "C") was made on
August 25, 1921 (subsequent to the sale of the property to Claro M. Recto and subsequent to
the issuance of the separate title TCT No. 7755 to Claro M.Recto, which is mentioned in
paragraph 5 of this Stipulation).
4. The sale to CLARO M. RECTO as evidenced by theEscritura de Compra-Venta (Annex "B")
was subject, among others, to the following conditions:
"SEXTO. Que entre la porcion vendida a Claro M. Recto y la que queda en poder de Miriam
R. Hedrick, hay un paso para vehiculos, de unos tres a cuatro metros de anchura
proximamente constituido por mitad o iguales partes sobre cada una de dichas porciones, y
ambas partes de esta escritura se obligan cada una a respetar el derecho de la otra a usar de
toda la extencion de dicho paso para todo el tiempo y todas las necesidades de cada una de
las dos propriedades, la vendida por la presente a Claro M. Recto y la que queda en poder de
Miriam R. Hedrick, siendo obligatorio este pacto para todos los que con posterioridad
adquirieran por cualquier titulo las fincas mencionadas.
"SEPTIMO. Que en vista de la forma irregular del inmueble descrito en el Certificado de Titulo
aludido en el parrafo PRIMERO de esta escritura, ambas partes convienen en practicar una
nueva medicion de dicho inmueble con el fin de que la linea divisoria entre la porcion vendida
por la presente a Claro M. Recto y la que queda en el dominio de Miriam R. Hedrick caiga en
medio del paso descrito y aludido en el parrafo anterior, y dicha linea sera perpendicular a la
calle San Marcelino."
This agreement of the parties, MIRIAM R. HEDRICK and CLARO M. RECTO, is annotated on
the respective titles of the plaintiff and the defendant, copies of which annotations are hereto
attached and made parts hereof as Annex "D" (Annotation on plaintiff's title, TCT. No. 62769)
and Annex "E" (Annotation on defendant's title, TCT No. 45990).
5. By virtue of said Escritura de Compra-Venta (annex "B") but before the new survey
mentioned in "parrafo septimo" thereof was undertaken, CLARO M. RECTO obtained a
separate title, TCT. No. 7755 issued on October 2, 1917, a copy of the technical description of
which is hereto attached and made part hereof as Annex "F".
6. In order to carry out said "parrafo septimo" of theEscritura de Compra-Venta (Annex "B")
regarding the new survey of the properties to fix the dividing line between the properties of
CLARO M. RECTO and MIRIAM R. HEDRICK, the said Claro M. Recto filed a Motion dated
July 19, 1920, a copy of which motion is hereto attached and made a part hereof asAnnex "G".
In a letter dated December 21, 1920, a copy of which is hereto attached and made thereof as
Annex "H". CLARO M. RECTO wrote to a certain MARCIAL ZAMORAof the General Land
Registration Office asking for the issuance of a new title in his favor in accordance with the new
plan submitted by him (Annex "J" of this Stipulation). The said Motion of July 19, 1920 was
amended on September 30, 1921, as per copy of the Amended Motion hereto attached and
made part hereof as Annex "I", in the Court of Land Registration of Manila, Record No. 662, for
the issuance of a new title for his property based on the new survey, the amendment consisting
of the addition of a paragraph which reads as follows:
"Que el compareciente no reclama las porciones Lote 9b y Lote 23b del referido plano S.W.O.
3753, sino solamente las porciones Lotes A, B, C, y D."
The said Motion and Amended Motion were accompanied with Exhibit "A" (of said motions), a
copy of the Escritura de Compra-Venta, which is Annex "B" of this Stipulation; Exhibit "B" (of
said motions), the re-survey plan above-mentioned and approved by the Director of Lands, a
certified copy of which re-survey plan is hereto attached and made part hereof as Annex "J";
and Exhibit "G" (of said motions), the technical descriptions of the lots covered in the above-
said re-survey plan (Annex "J" of this Stipulation), a certified copy of which is hereto attached
and made part hereof as Annex "K". On October 20, 1921, said Claro M. Recto received a
letter from the General Land Registration Office, a certified copy of which is hereto attached
and made part hereof as Annex "L". Before said Motion and Amended Motion were acted upon,
Claro M. Recto filed a Motion to Withdraw the Motions of July 19, 1920 and September 30,
1921, dated January 30, 1922, on the ground that it appeared "from the report submitted to this
Court by the Chief Surveyor of the General Land Registration Office that the plan S.W.O. 3753
attached to the motions of the undersigned of July 19, 1920, and September 30, 1921, does
not agree with the terms of the instrument of date of September 21, 1917,and that Transfer
Certificate of Title No. 7755 in the name of the undersigned is in accord with the terms of said
instrument." A copy of the Report of the Chief Surveyor of the General Land Registration Office
referred to in said motion to withdraw and a copy of the said motion to withdraw are hereto
attached and made parts hereof as Annexes "M" and "N". The Court issued an Order dated
January 31, 1922, a copy of which is hereto attached and made part hereof as Annex "O",
granting the withdrawal of the motions dated July 19, 1920 and September 30, 1921.
7. The property purchased by CLARO M. RECTO from MIRIAM R. HEDRICK became the
subject of a series of transfers, to wit:
a. Sold by CLARO M. RECTO to EMMANUEL CONTY, TCT No. 7755 was cancelled by TCT
No. 31334 dated September 1, 1928.
b. Sold by EMMANUEL CONTY TO SALVADOR BENEDICTO (the herein defendant), TCT
No. 31334 was cancelled by TCT No. 45990 dated December 1,1934. A copy of the technical
description appearing on said TCT No. 45990, whch is the present transfer certificate of title of
the defendant, is hereto attached and made part hereof as Annex "P", and the Survey Plan
thereof as plotted by the G.L.R.O. in accordance with the technical description (Annex "P") is
hereto attached and made part hereof as Annex "Q".
8. MIRIAM R. HEDRICK, as owner of the remaining lots Nos. 10 and 24 of Survey Plan No.
RS-219, subsequently obtained a new and separate title, TCT No. 22760 dated September 20,
1924, whose technical description is based on the Cadastral Survey made from January 20, to
July 12, 1919, wherein both Lots Nos. 10 and 24 of Survey Plan RS-219 were consolidated
and designated as Lot No. 12 of Block No. 372 of the Cadastral Survey of Manila. The technical
description and areaof said Lot No. 12 based on the Cadastral Survey are different from the
technical description and area of Lots Nos. 10 and 24 of Survey Plan RS-219, and likewise,
Lots Nos. 8, 9, 22, and 23 of Survey Plan RS-219 were consolidated and designated as Lot
No. 11 of Block No. 372 of the Cadastral Survey of Manila with a different area and technical
description.
9. The property of MIRIAM R. HEDRICK covered by TCT No. 22760, as above-stated, became
the subject of a seriesof transfers, to wit:
a. Sold by MIRIAM R. HEDRICK to CHOW KWO HSIEN, TCT No. 22760 was cancelled by
TCT No. 22766 dated September 23, 1924.
b. Sold by CHOW KWO HSIEN to GENERAL SECURITY AND INVESTMENT CO., TCT No.
22766 was cancelled by TCT No. 49798 dated August 26, 1936.
c. Sold by GENERAL SECURITY AND INVESTMENT CO. to VICENTE A. HERAS (the herein
plaintiff), TCT No. 49798 was cancelled by TCT No. 62769 dated September 19, 1941. A copy
of the technical description appearing on said TCT No. 62769 which is the present title of the
plaintiff, is hereto attached and made part hereof as Annex "R", and the Relocation Plan
thereof, S.W.O. 39343, approved by the Assistant Director of Lands on April 19, 1955, is hereto
attached and made part hereof as Annex "S".
10. Sometime in 1941, the plaintiff [Heras] demolished the entire building situated on his
property.
The trial court found that after selling Lots 8, 9, 22 and 23 (with an area of 766.90 square
meters), Miriam R. Hedrick obtained a separate title for the remaining Lots 10 and 24. The total
area of these two lots was 540.4 square meters only [together with those sold to Claro M. Recto
the two lots formed one parcel with an area of 1,307.3 square meters covered by TCT 3623],
but in the new title (TCT 22760) issued to Hedrick, their total area was made to appear to be
681.30 square meters. The increase in area was due to the fact that the technical description
used in the new title was based on a cadastral survey. Since the respondent Heras, as
successor-in-interest of Miriam R. Hedrick, owned no more than 540.4 square meters, the court
held that no portion of his property had been encroached upon by the petitioner Benedicto.
The trial court likewise found that the easement of way was found entirely within the property
of Benedicto, contrary to the stipulation in the deed of sale between Miriam R. Hedrick and
Claro M. Recto that it should be between their properties, with each contributing an equal
portion of his property. According to the court, this was the reason why Recto, Benedicto's
predecessor-in-interest, who had earlier asked for a resurvey in accordance with the deed of
sale, subsequently withdrew his motion, after finding that the passageway was located entirely
within his property.
Accordingly, the court directed both parties to contribute equally to the maintenance of a three
to four-meter-wide passageway between their properties, with the property line running at the
middle of the passageway. It rejected Benedicto's claim that the easement had been
extinguished by nonuser and by the cessation of the necessity for a passageway.
Both parties appealed to the Court of Appeals. Salvador Benedicto, who in the meantime died,
was substituted by the judicial administrator of his estate, Roberto S. Benedicto.On February
29, 1964 the Court of Appeals rendered a decision affirming in toto the decision of the trial
court, and on April 3, 1964 it denied the motions for reconsideration filed by the parties.
The petitioner Benedicto seeks a review of the decision of the Court of Appeals. 1 According
to him, the easement was originally constituted because the buildings then erected on the
respective properties of Miriam R. Hedrick and Claro M. Recto so adjoined each other that the
only way the back portions of the properties could be reached by their owners from San
Marcelino street was through the passageway. He claims that when the respondent Heras had
his building demolished in 1941 the property gained direct access to San Marcelino street with
the result that since then there has been no need for the passageway. The petitioner argues
further that it could be assumed that since 1941 the passageway ceased to be used "for
certainly [the respondent] could not be expected to be making 'detours' to reach San Marcelino
Street when the very frontage of his property was now open in its entirety to San Marcelino
Street."
Article 631 of the Civil Code provides in part:
Art. 631. Easments are extinguished:
xxx xxx xxx
(2) By nonuser 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; . . . .
This provision was taken from article 546 of the Civil Code of 1889, with the modification that
the period of nonuser was reduced from 20 to 10 years.1awphîl.nèt
The petitioner argues at length that this case is governed by the present Code, and that since
14 years had elapsed from the time the building on Heras' property was demolished in 1941 to
1955 when this action was begun (during which period he assumed that the passageway
ceased to be used because Heras' property had direct access to the street), the easement
must be deemed to have been extinguished.
For the purposes of this decision we do not find it necessary to determine whether the
appropriate period of nonuser in this case is 20 or 10 years. For one thing, there is no
indubitable proof of nonuser. The petitioner merely assumes that the passageway in question
had not been in use since 1941 because the property of Heras has since gained direct access
to San Marcelino street with the demolitionof his house. For another, even if we assume that
the period of prescription based on nonuser is 10 years, the very testimony of the petitioner
Benedicto shows that it was only in 1946 that he had the passageway walled in by constructing
a fence, and since the present action was filed in 1955, granting that article 631 of the Civil
Code is applicable, the prescriptive period has not yet elapsed.
Nor can presumptive renunciation by Heras of the use of the said passageway be inferred. It
would appear from the record that Heras started the construction of an apartment building on
his parcel of land after the demolition of his house in 1941, and that although interrupted by
World War II, construction was continued in 1955. Since it is patent from the stipuation of facts
that the easement in question is mainly a vehicular passageway, the obvious need for such
passageway to the rear portion of the projected apartment building negates any presumptive
renunciation on the part of Heras.
Moreover, the easement in this case is perpetual in character ("para todo el tiempo y todas las
necesidades de cada una de las dos propriedades, la vendida por la presente a Claro M. Recto
y la que queda en poder de Miriam R. Hedrick, siendo obligatorio este pacto para todos los
que con posterioridad adquirieran por cualquier titulo las fincas mencionadas") and was
annotated on all the transfer certificates of title issued in the series of transfers from Miriam R.
Hedrick through to the respondent Heras, and in the transfer certificates of title issued in the
series of transfers from Claro M. Recto through to the petitioner Benedicto. Since there is
nothing in the record that would point to a mutual agreement between any of the predecessors-
in-interest not between the petitioner and the respondent themselves with respect to the
discontinuance or obliteration of the easement annotated on the titles, the continued existence
of the easement must be upheld and respected.
The fact that the easement here is one of necessity does not detract from the conclusion we
have reached. For even assuming that with the demolition of the house on Heras' property the
necessity for the passageway ceased (a point traversed by Heras who claims that he
demolished his house precisely in order to build an apartment building in its place), still, as was
held in one case 2 "the fact that an easement [by grant] may have also qualified as an easement
of necessity does not detract from its permanency as a property right, which survives the
termination of the necessity." Indeed, when the easement in this case was established, the
parties unequivocally made provisions for its observance by all who in the future might succeed
them in dominion, and this is the reason the permanent character of the easement was
annotated on each and all of the transfer certificates of title.1awphîl.nèt
ACCORDINGLY, the decision appealed from is affirmed, at petitioner's cost.
Concepcion, C. J., Reyes, J.B.L., Makalintal, Zaldivar, Sanchez, Angeles and Fernando, JJ.,
concur.
Dizon, J., took no part.
G.R. No. 194336 March 11, 2013
PILAR DEVELOPMENT CORPORATION, Petitioner,
vs.
RAMON DUMADAG, EMMA BACABAC, RONALDO NAVARRO, JIMMY PAGDALIAN, PAY
DELOS SANTOS, ARMANDO TRILLOS, FELICISIMO TRILLOS, ARCANGEL FLORES,
EDDIE MARTIN, PRESILLA LAYOG, CONRADO CAGUYONG, GINA GONZALES,
ARLENE PEDROSA, JOCELYN ABELINO, ROQUE VILLARAZA, ROLANDO VILLARAZA,
CAMILO GENOVE, NILDA ROAYANA, SUSAN ROAYANA, JUANCHO PANGANIBAN,
BONG DE GUZMAN, ARNOLD ENVERSO, DONNA DELA RAZA, EMELYN HAGNAYA,
FREDDIE DE LEON, RONILLO DE LEON, MARIO MARTINEZ, and PRECY LOPEZ,
Respondents.
DECISION
PERALTA, J.:
Challenged in this petition for review on certiorari under Rule 45 of the Rules of Civil Procedure
are the March 5, 2010 Decision1 and October 29, 2010 Resolution2 of the Court of Appeals
(CA) in CA-G.R. CV No. 90254, which affirmed the May 30, 2007 Decision3 of the Las Piñas
Regional Trial Court, Branch 197 (trial court) dismissing the complaint filed by petitioner.
On July 1, 2002, petitioner filed a Complaint4 for accion publiciana with damages against
respondents for allegedly building their shanties, without its knowledge and consent, in its
5,613-square-meter property located at Daisy Road, Phase V, Pilar Village Subdivision,
Almanza, Las
Piñas City. It claims that said parcel of land, which is duly registered in its name under Transfer
Certificate of Title No. 481436 of the Register of Deeds for the Province of Rizal, was
designated as an open space of Pilar Village Subdivision intended for village recreational
facilities and amenities for subdivision residents.5 In their Answer with Counterclaim,6
respondents denied the material allegations of the Complaint and briefly asserted that it is the
local government, not petitioner, which has jurisdiction and authority over them.
Trial ensued. Both parties presented their respective witnesses and the trial court additionally
conducted an ocular inspection of the subject property.
On May 30, 2007, the trial court dismissed petitioner’s complaint, finding that the land being
occupied by respondents are situated on the sloping area going down and leading towards the
Mahabang Ilog Creek, and within the three-meter legal easement; thus, considered as public
property and part of public dominion under Article 5027 of the New Civil Code (Code), which
could not be owned by petitioner. The court held:
x x x The land title of [petitioner] only proves that it is the owner in fee simple of the respective
real properties described therein, free from all liens and encumbrances, except such as may
be expressly noted thereon or otherwise reserved by law x x x. And in the present case, what
is expressly reserved is what is written in TCT No. T-481436, to wit "that the 3.00 meter strip
of the lot described herein along the Mahabang Ilog Creek is reserved for public easement
purposes. (From OCT 1873/A-50) and to the limitations imposed by Republic Act No. 440. x x
x"8
The trial court opined that respondents have a better right to possess the occupied lot, since
they are in an area reserved for public easement purposes and that only the local government
of Las Piñas City could institute an action for recovery of possession or ownership.
Petitioner filed a motion for reconsideration, but the same was denied by the trial court in its
Order dated August 21, 2007.9 Consequently, petitioner elevated the matter to the Court of
Appeals which, on March 5, 2010, sustained the dismissal of the case.
Referring to Section 210 of Administrative Order (A.O.) No. 99-21 of the Department of
Environment and Natural Resources (DENR), the appellate court ruled that the 3-meter area
being disputed is located along the creek which, in turn, is a form of a stream; therefore,
belonging to the public dominion. It said that petitioner could not close its eyes or ignore the
fact, which is glaring in its own title, that the 3-meter strip was indeed reserved for public
easement. By relying on the TCT, it is then estopped from claiming ownership and enforcing
its supposed right. Unlike the trial court, however, the CA noted that the proper party entitled
to seek recovery of possession of the contested portion is not the City of Las Piñas, but the
Republic of the Philippines, through the Office of the Solicitor General (OSG), pursuant to
Section 10111 of Commonwealth Act (C.A.) No. 141 (otherwise known as The Public Land
Act).
The motion for reconsideration filed by petitioner was denied by the CA per Resolution dated
October 29, 2010, hence, this petition.
Anchoring its pleadings on Article 63012 of the Code, petitioner argues that although the portion
of the subject property occupied by respondents is within the 3-meter strip reserved for public
easement, it still retains ownership thereof since the strip does not form part of the public
dominion. As the owner of the subject parcel of land, it is entitled to its lawful possession,
hence, the proper party to file an action for recovery of possession against respondents
conformably with Articles 42813 and 53914 of Code.
We deny.
An easement or servitude 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 or her property, for the benefit of another person or tenement; it
is jus in re aliena, inseparable from the estate to which it actively or passively belongs,
indivisible, perpetual, and a continuing property right, unless extinguished by causes provided
by law.15 The Code defines easement as an encumbrance imposed upon an immovable for
the benefit of another immovable belonging to a different owner or for the benefit of a
community, or of one or more persons to whom the encumbered estate does not belong.16
There are two kinds of easement according to source: by law or by will of the owners – the
former are called legal and the latter voluntary easement.17 A legal easement or compulsory
easement, or an easement by necessity constituted by law has for its object either public use
or the interest of private persons.18
While Article 630 of the Code provides for the general rule that "the owner of the servient estate
retains the ownership of the portion on which the easement is established, and may use the
same in such a manner as not to affect the exercise of the easement," Article 635 thereof is
specific in saying that "all matters concerning easements established for public or communal
use shall be governed by the special laws and regulations relating thereto, and, in the absence
thereof, by the provisions of this Title Title VII on Easements or Servitudes."
In the case at bar, the applicability of DENR A.O. No. 99-21 dated June 11, 1999, which
superseded DENR A.O. No. 97-0519 dated March 6, 1997 and prescribed the revised
guidelines in the implementation of the pertinent provisions of Republic Act (R.A.) No. 1273
and Presidential Decree (P.D.) Nos. 705 and 1067, cannot be doubted. Inter alia, it was issued
to further the government’s program of biodiversity preservation. Aside from Section 2.1 above-
quoted, Section 2.3 of which further mandates:
2.3 Survey of Titled Lands:
2.3.1 Administratively Titled Lands:
The provisions of item 2.1.a and 2.1.b shall be observed as the above. However, when these
lands are to be subdivided, consolidated or consolidated-subdivided, the strip of three (3)
meters which falls within urban areas shall be demarcated and marked on the plan for
easement and bank protection.
The purpose of these strips of land shall be noted in the technical description and annotated in
the title.
xxxx

2.3.3 Complex Subdivision or Consolidation Subdivision Surveys for Housing/Residential,
Commercial or Industrial Purposes:
When titled lands are subdivided or consolidated-subdivided into lots for residential,
commercial or industrial purposes the segregation of the three (3) meter wide strip along the
banks of rivers or streams shall be observed and be made part of the open space requirement
pursuant to P.D. 1216.
The strip shall be preserved and shall not be subject to subsequent subdivision. (Underscoring
supplied)
Certainly, in the case of residential subdivisions, the allocation of the 3-meter strip along the
banks of a stream, like the Mahabang Ilog Creek in this case, is required and shall be
considered as forming part of the open space requirement pursuant to P.D. 1216 dated October
14, 1977.20 Said law is explicit: open spaces are "for public use and are, therefore, beyond the
commerce of men" and that "[the] areas reserved for parks, playgrounds and recreational use
shall be non-alienable public lands, and non-buildable."
Running in same vein is P.D. 1067 or The Water Code of the Philippines21 which provides:
Art. 51. The banks of rivers and streams and the shores of the seas and lakes throughout their
entire length and within a zone of three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along their margins, are subject to the
easement of public use in the interest of recreation, navigation, floatage, fishing and salvage.
No person shall be allowed to stay in this zone longer than what is necessary for recreation,
navigation, floatage, fishing or salvage or to build structures of any kind. (Underscoring
supplied)
Thus, the above prove that petitioner’s right of ownership and possession has been limited by
law with respect to the 3-meter strip/zone along the banks of Mahabang Ilog Creek. Despite
this, the Court cannot agree with the trial court’s opinion, as to which the CA did not pass upon,
that respondents have a better right to possess the subject portion of the land because they
are occupying an area reserved for public easement purposes. Similar to petitioner,
respondents have no right or title over it precisely because it is public land. Likewise, we
repeatedly held that squatters have no possessory rights over the land intruded upon.22 The
length of time that they may have physically occupied the land is immaterial; they are deemed
to have entered the same in bad faith, such that the nature of their possession is presumed to
have retained the same character throughout their occupancy.23
As to the issue of who is the proper party entitled to institute a case with respect to the 3-meter
strip/zone, We find and so hold that both the Republic of the Philippines, through the OSG and
the local government of Las Piñas City, may file an action depending on the purpose sought to
be achieved. The former shall be responsible in case of action for reversion under C.A. 141,
while the latter may also bring an action to enforce the relevant provisions of Republic Act No.
7279 (otherwise known as the Urban Development and Housing Act of 1992).24 Under R.A.
7279, which was enacted to uplift the living conditions in the poorer sections of the communities
in urban areas and was envisioned to be the antidote to the pernicious problem of squatting in
the metropolis,25 all local government units (LGUs) are mandated to evict and demolish
persons or entities occupying danger areas such as esteros, railroad tracks, garbage dumps,
riverbanks, shorelines, waterways, and other public places such as sidewalks, roads, parks,
and playgrounds.26 Moreover, under pain of administrative and criminal liability in case of non-
compliance,27 it obliges LGUs to strictly observe the following:
Section 29. Resettlement. - Within two (2) years from the effectivity of this Act, the local
government units, in coordination with the National Housing Authority, shall implement the
relocation and resettlement of persons living in danger areas such as esteros, railroad tracks,
garbage dumps, riverbanks, shorelines, waterways, and in other public places such as
sidewalks, roads, parks and playgrounds. The local government unit, in coordination with the
National Housing Authority, shall provide relocation or resettlement sites with basic services
and facilities and access to employment and livelihood opportunities sufficient to meet the basic
needs of the affected families.1âwphi1
Section 30. Prohibition Against New Illegal Structures. - It shall be unlawful for any person to
construct any structure in areas mentioned in the preceding section. After the effectivity of this
Act, the barangay, municipal or city government units shall prevent the construction of any kind
or illegal dwelling units or structures within their respective localities. The head of any local
government unit concerned who allows, abets or otherwise tolerates the construction of any
structure in violation of this section shall be liable to administrative sanctions under existing
laws and to penal sanctions provided for in this Act.
Yet all is not lost for petitioner. It may properly file an action for mandamus to compel the local
government of Las Piñas City to enforce with reasonable dispatch the eviction, demolition, and
relocation of respondents and any other persons similarly situated in order to give flesh to one
of the avowed policies of R.A. 7279, which is to reduce urban dysfunctions, particularly those
that adversely affect public health, safety, and ecology.28
Indeed, as one of the basic human needs, housing is a matter of state concern as it directly
and significantly affects the general welfare.29
WHEREFORE, the petition is DENIED. The March 5, 2010 Decision and October 29, 2010
Resolution of the Court of Appeals in CA-G.R. CV No. 90254, which affirmed the May 30, 2007
Decision of the Las Piñas RTC, Branch 197, dismissing petitioner's complaint, is hereby
AFFIRMED.
SO ORDERED.
G.R. No. 173252 July 17, 2009
UNISOURCE COMMERCIAL AND DEVELOPMENT CORPORATION, Petitioner,
vs.
JOSEPH CHUNG, KIAT CHUNG and KLETO CHUNG, Respondents.
DECISION
QUISUMBING, J.:
The instant petition assails the Decision1 dated October 27, 2005 and the Resolution2 dated
June 19, 2006 of the Court of Appeals in CA-G.R. CV No. 76213. The appellate court had
reversed and set aside the Decision3 dated August 19, 2002 of the Regional Trial Court of
Manila, Branch 49, in Civil Case No. 00-97526.
The antecedent facts are as follows:
Petitioner Unisource Commercial and Development Corporation is the registered owner of a
parcel of land covered by Transfer Certificate of Title (TCT) No. 1762534 of the Register of
Deeds of Manila. The title contains a memorandum of encumbrance of a voluntary easement
which has been carried over from the Original Certificate of Title of Encarnacion S. Sandico.
The certified English translation5 of the annotation reads:
By order dated 08 October 1924 of the Court of First Instance of Manila, Chamber IV (AP-
7571/T-23046), it is declared that Francisco Hidalgo y Magnifico has the right to open doors in
the course of his lot described as Lot No. 2, Block 2650 of the map that has been exhibited,
towards the left of the Callejon that is used as a passage and that appears as adjacent to the
said Lot 2 and to pass through the land of Encarnacion Sandico y Santana, until the bank of
the estero that goes to the Pasig River, and towards the right of the other Callejon that is
situated between the said Lot 2 and Lot 4 of the same Block N.6
As Sandico’s property was transferred to several owners, the memorandum of encumbrance
of a voluntary easement in favor of Francisco M. Hidalgo was consistently annotated at the
back of every title covering Sandico’s property until TCT No. 176253 was issued in petitioner’s
favor. On the other hand, Hidalgo’s property was eventually transferred to respondents Joseph
Chung, Kiat Chung and Cleto Chung under TCT No. 121488.7
On May 26, 2000, petitioner filed a Petition to Cancel the Encumbrance of Voluntary Easement
of Right of Way8 on the ground that the dominant estate has an adequate access to a public
road which is Matienza Street. The trial court dismissed the petition on the ground that it is a
land registration case. Petitioner moved for reconsideration. Thereafter, the trial court
conducted an ocular inspection of the property. In an Order9 dated November 24, 2000, the
trial court granted the motion and made the following observations:
1. The dominant estate is a property enclosed with a concrete fence with no less than three (3)
doors in it, opening to an alley belonging to the servient estate owned by the petitioner. The
alley is leading to Matienza St.;
2. The dominant estate has a house built thereon and said house has a very wide door
accessible to Matienza St. without any obstruction. Said street is perpendicular to J.P. Laurel
St.
It is therefore found that the dominant estate has an egress to Matienza St. and does not have
to use the servient estate.10
In their Answer,11 respondents countered that the extinguishment of the easement will be of
great prejudice to the locality and that petitioner is guilty of laches since it took petitioner 15
years from acquisition of the property to file the petition.
In a Decision dated August 19, 2002, the trial court ordered the cancellation of the
encumbrance of voluntary easement of right of way in favor of the dominant estate owned by
respondents. It found that the dominant estate has no more use for the easement since it has
another adequate outlet to a public road which is Matienza Street. The dispositive portion of
the decision reads:
IN VIEW OF ALL THE FOREGOING, the Court hereby orders the cancellation of the
Memorandum of Encumbrance annotated in TCT No. 176253 which granted a right of way in
favor of the person named therein and, upon the finality of this decision, the Register of Deeds
of the City of Manila is hereby directed to cancel said encumbrance.
With respect to the other prayers in the petition, considering that the same are mere incidents
to the exercise by the owners of right of their ownership which they could well do without the
Court’s intervention, this Court sees no need to specifically rule thereon. The Court cannot
award plaintiff’s claims for damages and attorney’s fees for lack of sufficient bases therefor.
SO ORDERED.12
Respondents appealed to the Court of Appeals. On October 27, 2005, the appellate court
reversed the decision of the trial court and dismissed the petition to cancel the encumbrance
of voluntary easement of right of way.
The appellate court ruled that when petitioner’s petition was initially dismissed by the executive
judge, the copy of the petition and the summons had not yet been served on respondents.
Thus, when petitioner moved to reconsider the order of dismissal, there was no need for a
notice of hearing and proof of service upon respondents since the trial court has not yet
acquired jurisdiction over them. The trial court acquired jurisdiction over the case and over
respondents only after the summons was served upon them and they were later given ample
opportunity to present their evidence.
The appellate court also held that the trial court erred in canceling the encumbrance of
voluntary easement of right of way. The appellate court ruled that Article 631(3)13 of the Civil
Code, which was cited by the trial court, is inapplicable since the presence of an adequate
outlet to a highway extinguishes only legal or compulsory easements but not voluntary
easements like in the instant case. There having been an agreement between the original
parties for the provision of an easement of right of way in favor of the dominant estate, the
same can be extinguished only by mutual agreement or by renunciation of the owner of the
dominant estate.
The decretal portion of the decision reads:
WHEREFORE, the foregoing considered, the appeal is hereby GRANTED and the assailed
decision is REVERSED and SET ASIDE. Accordingly, the petition to cancel the encumbrance
of right of way is dismissed for lack of merit.
No costs.
SO ORDERED.14
Before us, petitioner alleges that the Court of Appeals erred in:
I.
… BRUSHING ASIDE PETITIONER’S CONTENTION THAT THE EASEMENT IS PERSONAL
SINCE THE ANNOTATION DID NOT PROVIDE THAT IT IS BINDING ON THE HEIRS OR
ASSIGNS OF SANDICO.
II.
… NOT CONSIDERING THAT THE EASEMENT IS PERSONAL SINCE NO
COMPENSATION WAS GIVEN TO PETITIONER.
III.
… DISREGARDING THE CIVIL CODE PROVISION ON UNJUST ENRICHMENT.
IV.
… TREATING THE EASEMENT AS PREDIAL.15
Petitioner contends that the fact that Sandico and Hidalgo resorted to judicial intervention only
shows that they contested the existence of the requisite factors establishing a legal easement.
Besides, the annotation itself provides that the easement is exclusively confined to the parties
mentioned therein, i.e., Sandico and Hidalgo. It was not meant to bind their heirs or assigns;
otherwise, they would have expressly provided for it. Petitioner adds that it would be an unjust
enrichment on respondents’ part to continue enjoying the easement without adequate
compensation to petitioner. Petitioner also avers that to say that the easement has attached to
Hidalgo’s property is erroneous since such property no longer exists after it has been
subdivided and registered in respondents’ respective names.16 Petitioner further argues that
even if it is bound by the easement, the same can be cancelled or revoked since the dominant
estate has an adequate outlet without having to pass through the servient estate.
Respondents adopted the disquisition of the appellate court as their counter-arguments.
The petition lacks merit.
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.
Easements are established either by law or by the will of the owner. The former are called legal,
and the latter, voluntary easements.17
In this case, petitioner itself admitted that a voluntary easement of right of way exists in favor
of respondents.1avvphi1 In its petition to cancel the encumbrance of voluntary easement of
right of way, petitioner alleged that "[t]he easement is personal. It was voluntarily constituted in
favor of a certain Francisco Hidalgo y Magnifico, the owner of [the lot] described as Lot No. 2,
Block 2650."18 It further stated that "the voluntary easement of the right of way in favor of
Francisco Hidalgo y Magnifico was constituted simply by will or agreement of the parties. It was
not a statutory easement and definitely not an easement created by such court order because
‘[the] Court merely declares the existence of an easement created by the parties."19 In its
Memorandum20 dated September 27, 2001, before the trial court, petitioner reiterated that
"[t]he annotation found at the back of the TCT of Unisource is a voluntary easement."21
Having made such an admission, petitioner cannot now claim that what exists is a legal
easement and that the same should be cancelled since the dominant estate is not an enclosed
estate as it has an adequate access to a public road which is Callejon Matienza Street.22 As
we have said, the opening of an adequate outlet to a highway can extinguish only legal or
compulsory easements, not voluntary easements like in the case at bar. The fact that an
easement by grant may have also qualified as an easement of necessity does not detract from
its permanency as a property right, which survives the termination of the necessity.23 A
voluntary easement of right of way, like any other contract, could be extinguished only by
mutual agreement or by renunciation of the owner of the dominant estate.241avvphi1
Neither can petitioner claim that the easement is personal only to Hidalgo since the annotation
merely mentioned Sandico and Hidalgo without equally binding their heirs or assigns. That the
heirs or assigns of the parties were not mentioned in the annotation does not mean that it is
not binding on them. Again, a voluntary easement of right of way is like any other contract. As
such, it is generally effective between the parties, their heirs and assigns, except in case where
the rights and obligations arising from the contract are not transmissible by their nature, or by
stipulation or by provision of law.25 Petitioner cites City of Manila v. Entote26 in justifying that
the easement should bind only the parties mentioned therein and exclude those not so
mentioned. However, that case is inapplicable since the issue therein was whether the
easement was intended not only for the benefit of the owners of the dominant estate but of the
community and the public at large.27 In interpreting the easement, the Court ruled that the
clause "any and all other persons whomsoever" in the easement embraces only "those who
are privy to the owners of the dominant estate, Lots 1 and 2 Plan Pcs-2672" and excludes "the
indiscriminate public from the enjoyment of the right-of-way easement."28
We also hold that although the easement does not appear in respondents’ title over the
dominant estate, the same subsists. It is settled that the registration of the dominant estate
under the Torrens system without the annotation of the voluntary easement in its favor does
not extinguish the easement. On the contrary, it is the registration of the servient estate as free,
that is, without the annotation of the voluntary easement, which extinguishes the easement.29
Finally, the mere fact that respondents subdivided the property does not extinguish the
easement. Article 618 30 of the Civil Code provides that if the dominant estate is divided
between two or more persons, each of them may use the easement in its entirety, without
changing the place of its use, or making it more burdensome in any other way.
WHEREFORE, the instant petition is DENIED. The Decision dated October 27, 2005 and the
Resolution dated June 19, 2006 of the Court of Appeals in CA-G.R. CV No. 76213 are
AFFIRMED.
SO ORDERED.
G.R. No. L-31118 January 14, 1930
MARCELO FRANCISCO, plaintiff-appellant,
vs.
TIMOTEO PAEZ and RICARDO JABSON, defendants-appellees.
Gregorio Perfecto for appellant.
Prudencio A. Remigio for appellee Paez.
No appearance for other appellees.
ROMUALDEZ, J.:
In the complaint the plaintiff claims a right of way, upon payment of indemnity, across defendant
Paez's land; that the latter recognize the plaintiff's ownership of a piece of land of 23.46 square
meters, that he vacate it, and that the defendant indemnify him for the damages arising from
said occupation.
Defendant Paez answered with a general denial and set up the special defense of prescription.
Defendant Jabson, in turn, also answered with a general denial, and by way of special defense
denied that the plaintiff has any right of way over his land, because outside of it there is another
possible way to the street, which is shorter and less prejudicial.
After the judicial commissioner appointed for the purpose had taken the evidence and
inspected the land, the Court of First Instance of Manila decided the case as follows:
In view of the foregoing considerations, the complaint is dismissed with respect to the first
cause of action. It is held that the plaintiff is the absolute owner of the piece of land mentioned
in the second cause of action, with an area of 23.46 square meters and included within lot No.
13, block No. 2718 of the certificate of title issued in his favor, and he is entitled to the ownership
of the small house built of strong materials by defendant Paez thereon, upon payment of its
value, or to compel the defendant to purchase said land at twenty pesos (P20) per square
meter. Should the plaintiff choose the first alternative, he shall pay the price to be agreed upon
by and between himself and said defendant, and in default thereof, the value to be later
determined by the court after hearing the evidence that might be presented in connection
therewith. Defendant Paez shall pay the costs of this action. So ordered. (Pages 40 and 41, bill
of exceptions.)
The plaintiff appealed from this judgment, and makes the following assignments of error:
1. In holding that the plaintiff's action to enforce his right of way over defendant Paez's land is
barred by the statute of limitations.
2. In not holding that the action to enforce a right of way is imprescriptible.
3. In denying the relief sought in the complaint, respecting the right of way through Timoteo
Paez's land.
The question raised in this appeal, then, is whether the plaintiff's right of way over defendant
Paez's land has prescribed or is imprescriptible.
The trial court held the plaintiff's right to have been barred on the following grounds:
It has been proved that the parcels of land now belonging to defendant Ricardo Jabson
originally belonged to a certain Paulino Castañeda y Francisco, married to Teodora del Mundo,
who, on December 20, 1908 obtained decree No. 3138 in proceeding No. 4865, and
subsequently, certificate of title No. 1449. On October 20, 1909, the parcel of land thus held by
Paulino Castañeda y Francisco was subdivided by the latter into two parts, one containing
193.66 square meters, situated in the inner portion of the space between Padre Rada and Ilaya
Streets, and the other containing 173.71 square meters, conterminous with said streets. The
first of these parcels, that is, the interior portion, after successive transfers became the property
of the plaintiff herein, and the second portion, after several transfers, also, became the property
of defendant Jabson. Therefore, from October 20, 1909, when the property was subdivided
into the two aforesaid portions, there arose the right of the original owners of the interior parcel
to claim a right of way over the adjacent land which was then the land abutting upon P. Rada
and Ilaya Streets, through which was the nearest and shortest way to said streets.
Notwithstanding the fact that from that date said right arose, none of the previous owners
exercised said right until the plaintiff attempted to enforce it through the complaint filed on
September 1, 1927, that is, after almost eighteen years had elapsed.
Section 40 of the Code of Civil Procedure provides that the action to recover ownership or
possession of real property, or an interest therein, may only be exercised within ten years after
the cause of said action arises. Applying this legal provision to the facts established in this
case, it is evident that the plaintiff cannot obtain the relief he seeks in his complaint because
his action is barred by the statute of limitations, inasmuch as neither he nor his predecessors
demanded the right of way within said limitations. (Pages 36, 37, and 38, bill of exceptions.)
The facts related by the court below are based upon the result of these proceedings. But we
should not lose sight of the fact that although it is true that easements are extinguished by non-
user for twenty years (article 546, No. 1, Civil Code), nevertheless, the case at bar does not
deal with an easement which has been used, while the legal provisio cited is only applicable to
easements which being in use are later abandoned. Here is what Manresa says on this point:
Prescription affects all easements lawfully arisen although they may not have been used.
Nevertheless, the second paragraph of article 546, number 2, refers to an easement in use, for
one cannot discontinue using what one has never used, and there can be no act, at least in all
the cases, adverse to an inchoate easement. (4 Commentaries on the Civil Code, fourth edition,
page 662.) And in speaking of legal easements, such as the one in question, the same author
observes.
(c) Others, finally, may be extinguished by non-user, but only with respect to the actual form or
manner in which they had been exercised, and the right or the power to claim the exercise of
legal easement does not prescribe, as occurs especially in the case of the right of way and
easement of aqueduct. (Emphasis ours.) (Ditto, pages 662 and 663).
The appellee also cites in support of his appeal No. 5 of said article 546 which refers to
extinction of easements by waiver. It should be noted that in the case of intermittent easements,
such as the right of way, the waiver must be, if not formal and solemn, at least such as may be
obviously gathered from positive acts, and the mere refraining from claiming the right is not, to
our mind, sufficient for the purpose. This seems to be the drift of the following commentaries
made by Manresa:
There has also been some discussion as to whether the waiver should be express or implied.
It may be that the act of walling up a window by the owner of the dominant estate is a plain act
of implied waiver, and yet, this act does not of itself extinguish the easement, but only serves
to mark the beginning of the prescription. In intermittent easements (like the one in question)
the mere fact of leaving them seems to indicate a waiver, and yet, it is not sufficient to extinguish
them. It seems then that as a general rule, an express waiver should be required, but without
prejudice to having the courts decide in exceptional cases that there is an evident waiver,
inferred from acts which reveal it beyond all doubt. (Ibid., pages 667, 668.) (Emphasis ours.)
The mere fact that the plaintiff and his predecessors refrained from claiming the easement,
without any positive act to imply a real waiver, does not, in our opinion, bring the case within
the provision of the aforesaid article 546, No. 5, of the Civil Code.
Our conclusion is that such a right of way, provided by the law for the benefit of private
individuals, may be waived, for Manresa so declares:
Legal easements established in the interest of private individuals may be waived, but not so
those of public utility. (Opus, volume and edition as aforecited, page 668.)
But the court holds, for the reasons stated above, that said article 546, No. 5, Civil Code, is not
applicable to the instant case, with reference to waiver, nor is No. 2 of the same article,
regarding non-user; and therefore, the plaintiff's right of way cannot be deemed extinguished.
The judgment appealed from is modified and it is held that, upon payment of the proper
indemnity, the plaintiff is entitled to a right of way through the shortest and least prejudicial
portion of the servient estate, from plaintiff's lot designated No. 3, in the plan Exhibit A, through
defendant Timoteo Paez's lot No. 12 according to said plan, to P. Rada Street, as provided in
articles 564, 565 and concordant articles of the Civil Code.
Without express pronouncement of costs. So ordered.
Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ.,
concur.
G.R. No. L-23818 January 21, 1976
EMILIO PURUGGANAN, plaintiff-appellee,
vs.
FELISA PAREDES and TRANQUILINO BARRERAS, defendants-appellants.
Agripino Brillantes and Paredes, Purugganan & Lizardo for appellee.
Marcelino N. Sayo & Associates for appellants.
MARTIN, J.:
The main issue in this appeal is whether or not the summary judgment of the Court of First
Instance of Abra based on the pleadings and reports submitted by the commissioner in Civil
Case No. 738 entitled Emilio P. Purugganan vs. Felisa Paredes, et al., was correctly rendered.
Plaintiff-appellee Emilio Purugganan is the owner of a piece of a residential lot subdivided as
Lot 1 and Lot 2, situated at the poblacion of Bangued, Abra and technically described under
Torrens Title No. R-6 in his name, adjacent to and bounded on the North by the lot of defendant-
appellant Felisa Paredes. The lots of the plaintiff-appellee are subject to an easement of
drainage in favor of the defendants-appellants fully quoted in the Decree of Registration of the
Court of First Instance of Abra, G.L.R.O. Rec. No. 3256 to wit:
That the oppositor (Felisa Paredes) withdraws her opposition to the registration of the lots Nos.
1 and 2 of the applicant, and in compensation to said withdrawal by the oppositor of her
opposition, the applicant agrees to respect an easement or servitude over a portion of the lots
Nos. 1 and 2 which is EIGHT AND ONE HALF (8-½) meters in length commencing from point
4 of Lot No. 2 and stretching towards Lot No. 1 going Eastward, and the width is ONE (1) meter,
in order that the rain water coming from the roofing of a house to be constructed by the
oppositor over the ruins of her brick wall now standing along the Northeastern boundary of Lot
1 shall fall into the land of the applicant.
In or about the month of March 1951, the defendants-appellants constructed a house on their
lot adjacent to Lots 1 and 2 of plaintiff-appellee in such a manner that the southern side of their
house is exactly on the brick wall, the southern side of which is the demarcation line between
the plaintiff-appellee and the defendants-appellants, demolishing said brick wall and built
thereon the southern wall of their house with 3 windows. The house constructed by the
defendants-appellants is 2-½ meters longer than the length of roofing allowed in the
abovequoted Decree of Registration, and has an outer roofing (eaves) of 1.20 meters,
protruding over the property of the plaintiff-appellee which is .20 meters wider than that allowed
in the same Decree of Registration, and the rain water from the GI roofing falls about 3 meters
inside Lots 1 and 2 of the plaintiff-appellee. The defendants-appellants also placed 3 windows
each on the first and second floors of their house on the side facing Lots 1 and 2 of plaintiff-
appellee. From the time the defendants-appellants started to construct their house, the plaintiff-
appellee has repeatedly and continuously been demanding from the defendants-appellants
that the construction of their house be in accordance with the easement, but the defendants-
appellants refused to observe the easement and to close their windows. They also prohibited
the plaintiff-appellee from constructing a party wall between points 1 and 2 of Lot 2 and between
points 2 and 3 and 4 of Lot 1.
In their answer, defendants-appellants admitted the allegations in paragraph 4 of the complaint
with respect to the existence of an "Amicable Settlement" with the plaintiff-appellee but
interposing a denial of the rest and alleging that the ruined brick wall which stands between the
properties of the plaintiff-appellee and their properties solely and exclusively belongs to them
to the exclusion of the plaintiff-appellee, the same having been inherited by defendant-
appellant Felisa Paredes from her ascendants from time immemorial, possessing them,
peacefully, continuously and adversely against any other party for so many years up to the
present; they also admitted having constructed a house on the very lot owned by them, with
windows on the side facing the south, the same as the house which turned into ruins by reason
of the bombing of Bangued in March 1945, but they denied that the same was constructed in
or about March 1951, as said house was reconstructed and re-erected on the ruins of a
Spanish-built house sometime in later months of 1950. They further alleged that the house
standing on the dominant estate pertaining to Felisa Paredes was constructed long before the
issuance of the Decree of Registration alluded to in the complaint and that they have not
violated the terms of the Decree of Registration referred to in paragraph 4 the complaint; had
long existed before the Decree of Registration in question was issued, in the same way that
said windows existed long before the bombing of Bangued in March 1945 and therefore,
plaintiff-appellee, as owner of the servient estate, is estopped from questioning the existence
of said windows; that since time immemorial, the house bombed in March 1945, on which ruins
stands the present house, had windows facing Lot No. 1, in the same way the windows of the
present house are so constructed facing same lot No. 1 a long time with notice, knowledge and
acquiescence of the plaintiff-appellee as owner of the servient estate. Defendants-appellants
prayed that plaintiff-appellee be ordered to respect all existing construction on their lot and to
refrain from constructing a party wall to obstruct the easement of light, and view; that the
easement of light and view be inscribed on the title of plaintiff-appellee's lots as well as to pay
the actual moral and consequential damages.
On September 7, 1959, the trial court pursuant to a pre-trial agreement issued an order
appointing the Provincial Land Officer of the Bureau of Lands, Ilocos Norte, or his duly
authorized representative to relocate the monuments and determine the boundary line between
the lots of the parties involved.
On May 5, 1962 plaintiff-appellee filed a motion for summary judgment in accordance with the
prayer of his complaint except the portion relative to damages where he reserved his right to
present his evidence. He supported his motion for summary judgment with an affidavit of merits
to which he has attached the Original Certificate of Title No. R-6 the Decree of Registration for
the issuance of said certificate of title, the Order dated September 7, 1959 and the report of the
Commissioner. In asking for summary judgment plaintiff-appellee contended that from the
respective pleadings of the parties and the Commissioner's Report relative to the relocation
and boundaries of his lands and the adjacent lands of defendants-appellants which are both
covered by Torrens Certificate of Title, it is evident that there is no genuine issue as to any
material fact, except as to the amount of damages.
On June 4, 1962 defendants-appellants opposed the motion for summary judgment on the
ground that their answer to the plaintiff-appellee's complaint has raised genuine and material
issues of facts. In their supporting affidavit, defendants-appellants alleged that the plaintiff-
appellee was the private surveyor who surveyed their lot in 1925 and that in the course of his
survey he had acted in bad faith when he excluded the portion of their land, which was the
subject matter of their opposition to the registration of plaintiff-appellee's lots; that they
constructed their house in 1950 without any protest from the plaintiff-appellee and was almost
complete when the Decree of Registration was issued by the court; that the plaintiff-appellee
knew fully well that the defendants-appellants were merely reconstructing a house which had
been existing prior to the bombing of Bangued in 1945; and that the brick wall standing along
the house is exclusively owned by them.
On July 30, 1962, the lower court rendered the now questioned Summary Judgment, the
dispositive portion of which reads:
IN VIEW OF THE FOREGOING CONSIDERATION, summary judgment is hereby rendered in
favor of the plaintiff and against the defendants:

(a) Ordering the defendants to reconstruct the roof and eaves of their house on the southern
side now existing on their lot such that the falling water shall not fall on curve into the lots of
the plaintiff beyond one meter from the boundary line and by 8-½ meters in length and to
remove the said protruding eaves and roof;
(b) Ordering the herein defendants to reconstruct the wall of their house on the southern side
either by placing in two meters north of the boundary line if they desired their windows on the
first and second floors to continue to exist, or to permanently close the three windows on the
second floor and such other openings or apertures facing the lot of the plaintiff;
(c) Ordering the defendants to comply with what is ordered above in Pars. (a) and (b) within
sixty (60) days from the finality of this judgment. Upon their failure to do so the Provincial Sheriff
of Abra is hereby authorized to implement this judgment and execute the acts mentioned in
Pars. (a) and (b) hereof, at the expense of the defendants:
(d) Enjoining perpetually the herein defendants from prohibiting the plaintiff from making such
legal and lawful constructions on his lots up to the boundary between plaintiff's lot and
defendants' lot, provided always that such construction in whatever form, as a firewall, fence,
etc., shall not violate the casement of drainage in favor of the defendants, and to conform with
the provisions of Art. 675 of the New Civil Code; and
(e) Ordering the defendants from further encroaching into plaintiff's lots and molesting the said
plaintiff in the lawful exercise of dominion over his own property.
Plaintiff-appellee reserved his right to adduce evidence with respect to damages.
On September 3, 1962 defendants-appellants moved for reconsideration of the foregoing
decision on the ground that there is a genuine and material issue of fact and that said decision
is unsupported by law and evidence. Whereupon the court a quo, deferring in the meantime
any action on the motion, issued an order appointing Atty. Gelacio Bolante, Clerk of Court, to
act as commissioner to make an ocular inspection on the premises of the lot in question and
to measure the eaves of the house of the defendants-appellants to find out whether it conforms
with the annotation contained in the Torrens certificate of Title of the plaintiff-appellee.
On December 4, 1962 the Clerk of Court submitted his report. After receiving a copy of said
report defendants-appellants manifested to the court that they agree with the findings of facts
therein and prayed that judgment be rendered in accordance therewith and that their ownership
of the brick wall mentioned in said report be confirmed.
On July 23, 1963 the trial court denied the motion for reconsideration of its summary judgment.
Hence, this appeal.
Defendants-appellants contended that the lower court erred in rendering a summary judgment
because (1) there is actually a genuine issue of material facts raised in the pleadings; (2) that
it made a finding of fact not supported by any evidence; and (3) that it rendered summary
judgment without any legal basis. They claimed that after denying the allegations of plaintiff-
appellee's complaint that they have violated the easement of drainage there was actually a
genuine issue of material fact presented. The allegation referred to is that contained in
paragraph 6 which states that the roof of defendants' house protrudes by .2 meter wider and
2-½ meters longer than that allowed by the Decree of Registration. This denial in paragraph 4
of the Answer of the defendants-appellants reads as follows:
That the defendants deny the allegations in paragraph 6 of the complaint, and allege that the
house standing on the dominant estate pertaining to Felisa Paredes, was constructed long
before the issuance of the Decree of Registration alluded to in the complaint, the herein
defendants not having violated the terms of the Decree of Registration to in paragraph 4 of the
complaint.
Again in their opposition to the motion for summary judgment, defendants-appellants repeated
the same denial and averments by alleging therein:
Defendants specifically denied these allegations of the plaintiff and alleged that (a) the house
of the defendants was constructed sometime in the latter months of 1950, before the issuance
of the Decree of Registration adverted to by the plaintiff, and therefore could not have violated
that said Decree, and (b) that the windows complained of by the plaintiff are reconstructed
windows of the reconstructed house of the dominant estate which had been in existence since
the Spanish Regime, with the knowledge, acquiescence and toleration of the plaintiff and his
predecessors in interests for more than sixty (60) years.
Even the supporting affidavit of defendants-appellants alleged that the brick wall standing along
their house and adjacent to the land of the plaintiff-appellee is owned by them. A close look at
the foregoing denials however, will show that the allegations defendants-appellants were trying
to challenge relate to the validity of the easement of drainage as annotated in the Certificate of
Title of plaintiff-appellee and not to the allegation that the roof of defendants-appellants
protrudes by .2 meter wider and 2-½ meters longer than that allowed by the Decree of
Registration. This must be the reason why in his summary judgment, the trial judge noted the
first issue as: "(1) that the house now standing on the lot of the defendants was constructed
before the issuance of the Decree of Registration and, therefore, such construction did not
violate said Decree of Registration particularly the easement annotated on the Original
Certificate of Title No. R-6 ...."
It is only in their Motion for Reconsideration that defendants-appellants made the clarification
that the issue is not whether their house was constructed before or subsequent to the Amicable
Settlement but whether or not the roofing was .2 meter wider and 2-½ meters longer than the
distance allowed in the Decree of Registration. So after the clarification, the trial judge ordered
that an ocular inspection of the premises of the lots in question be made and the eaves of the
house of the defendants-appellants be measured whether it conforms with the annotation
contained in the Torrens Certificate of Title of plaintiff-appellee. After the ocular inspection
defendants-appellants readily manifested their conformity to the findings of fact made by the
commissioner appointed by the court. Under such a situation, it would seem that there was no
need for a trial on the merits to resolve the question as to whether the defendants-appellants'
roof was constructed in violation of the easement of drainage of plaintiff-appellee. All that
remained for the trial court, to do was to evaluate the facts and the arguments in the pleadings
and the reports of the commissioner.
Defendants-appellants faulted the trial court for concluding that they have violated the
conditions of the easement of drainage without taking into consideration the report of the
commissioner appointed by it. After going over the pleadings of the parties and the reports of
the commissioner, we find no substantial ground to disturb the conclusion of the trial court.
Defendants-appellants have made a mistake in applying the distances prescribed in the Decree
of Registration to the roofing of their house. They failed to comprehend the meaning of the
phrase "servidumbre de vertiente de los tejados" constitutes on the land of plaintiff. Translated,
it means the easement of receiving water falling from the roof which is an encumbrance
imposed on the land of the plaintiff-appellee. Consequently, the distances prescribed in the
Decree of Registration should not correspond to the width and length of the roof of the
defendants-appellants' house but to the distance of the rain water falling inside the land of the
plaintiff-appellee because the encumbrance is not the roof itself but the rain water falling inside
the property of the plaintiff-appellee. The Amicable Settlement, which was the basis of the
Decree of Registration, clearly states that the servitude on the land is to the extent of the
distances setforth thus:
... the applicant agrees to respect an easement of servitude over a portion of the lots Nos. 1
and 2 which is EIGHT AND ONE HALF (8-½) meters in length commencing from point 4 of Lot
No. 2 and stretching towards Lot No. 1 going Eastward, and the width is ONE (1) meter, in
order that the rain water coming from the roofing of a house to be constructed by the oppositor
over the ruins of her brick wall now standing along the Northeastern boundary of Lot 1 shall fall
into the land of the applicant.
And the Decree of Registration tersely states that a portion of Lot 1 and Lot 2 consisting of 8-
½ meters long and 1 meter wide is subject to the easement of receiving water falling from the
roof. If these distances were made to correspond to the measurement of the roof then the
encumbrance on plaintiff-appellee's property would be more than the distances specified in the
Certificate of Title. The report submitted by the Commissioner appointed by the lower court to
make an ocular of the premises involved shows that the eaves of the house of defendants-
appellee and measures 8 meters and 20 centimeters in length; that during ordinary rain the
water falling from the eaves of the defendants-appellants' house fall within one meter from the
boundary line of plaintiff-appellee's property and during heavy rains more than one meter from
said boundary line. The foregoing findings and observations of the Commissioner weaken
defendants-appellants' disclaimer that they did not violate the conditions of the easement of
drainage of plaintiff-appellee. There is such violation because the roof of the defendants-
appellants protrudes by 98 centimeters over the property of plaintiff-appellee, so that during a
heavy rainfall the propulsion of the water would go as far as one meter over the property of the
latter. Obviously the lower court is correct in finding the defendants-appellants to have violated
the conditions of the easement of drainage of plaintiff-appellee.
Defendants-appellants also blamed the trial court for ruling that they have not acquired an
easement of light and view of the property of the plaintiff-appellee. The trial court's ruling that
defendants-appellants have not acquired an easement of light and view on the property of the
plaintiff-appellee is premised on Section 39 of Act 496 in accordance with which the servient
estate was registered. Said Section provides:
Every person receiving a certificate of title in pursuance of a decree of registration ... shall hold
the same free of all encumbrance except those noted on said certificates ...
The same section, however, provides: "But if there are easement or other rights appurtenant
to a parcel of registered land which for any reason have failed to be registered, such easement
or rights shall remain so appurtenant notwithstanding such failure, and shall be held to pass
with the land until cut off or extinguished by the registration of the servient estate or in any other
manner (Sec. 39, Act No. 496, as amended by Act No. 2011, and Sec, 4, Act No. 3621). In the
case of Cid vs. Javier, 108 Phil. 850, 853, plaintiff's lot (dominant) as well as defendants' lot
(servient) are covered by Original Certificate of Title Nos. 7225 and 7545 respectively. In both
of them, there does not appear any annotation with respect to the easement supposedly
acquired by prescription which counting the twenty, (20) years from 1931 or 1914 would have
already ripened by 1937, date of the decrees of registration. In said case our Supreme Court
held:
Granting that in the instant case an easement of light and view was acquired by prescription, it
was cut off or extinguished by the of the registration of the servient estate under the Torrens
System without the easement being annotated on the corresponding certificate of title, pursuant
to Sec. 39 of the Land Registration Act (Act 496).
The lower court correctly applied the foregoing doctrine to the case at bar.
Indeed if defendants-appellants had acquired the said easement of light and view by
prescription through user since time immemorial why did they not intervene in the registration
proceedings for the inclusion of said easement in the Certificate of Title of plaintiff-appellee as
an encumbrance thereon, in the same manner that the easement of drainage was annotated
in the Certificate of Title of plaintiff-appellee? The easement of drainage was inscribed in the
Certificate of Title of plaintiff-appellee in their favor by virtue of an amicable settlement resulting
from their opposition to the registration of plaintiff-appellee's property. In this light, their defense
of user "since time immemorial" becomes flimsy and is merely being used to simulate a factual
issue.
Finally, defendants-appellants argued that the summary judgment of the lower court has no
legal basis. Summary judgment is employed as a method of disposing a case when the
pleadings, depositions, admission and affidavits filed by the parties show that there is no
genuine issue as to any material fact and that the movant is entitled to a judgment as a matter
of law (Section 3 of Rule 34). In the case at bar the plaintiff-appellee's right to the reliefs sought
is dependent on the existence or non-existence of the easement of drainage and of light and
view of favor of the defendants-appellants as well as on the conditions attached to such
easements. There is no dispute that plaintiff-appellee's property was registered in 1951 under
the Torrens System and that only the easement of drainage is annotated on his Certificate of
Title, subject to prescribed distances. But what defendants-appellants have advanced as
factual issues are: (1) that they have not violated the prescribed distances of the easement of
drainage; and (2) that the easement of light and view was in existence since time imemorial.
The first factual issue was resolved by the report submitted by the commissioner to which
defendants-appellants have given their conformity. The second factual issue is immaterial to
the disposition of the case because the servient estate was registered in 1951 without the
easement of light and view being annotated on the title. Since the supposed easement of light
and view is not annotated on the title, it becomes immaterial whether such easement existed
since time immemorial. On this point, there is no need to have a trial on the merits and a
summary judgment would appear to be in order.
IN VIEW OF THE FOREGOING, the summary judgment appealed from is hereby affirmed with
costs against defendants-appellants.
SO ORDERED.
Teehankee (Chairman), Makasiar, Esguerra and Muñoz Palma, JJ., concur.
G.R. No. 130845 November 27, 2000
BRYAN U. VILLANUEVA, petitioner,
vs.
HON. TIRSO D.C. VELASCO in his capacity as Presiding Judge of the Regional Trial
Court of Quezon City, Branch 88, JULIO N. SEBASTIAN and SHIRLEY LORILLA,
respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari assails (1) the decision1 dated December 27, 1996 of the Court of
Appeals in CA-G.R. SP No. 39166, dismissing petitioner’s petition for review under Rule 65
with prayer for the issuance of a cease and desist order and/or temporary restraining order,
and (2) the resolution2 dated August 14, 1997 denying the subsequent motion for
reconsideration.
Petitioner Bryan Villanueva is the registered owner of the parcel of land covered by Transfer
Certificate of Title No. 127862 of the Register of Deeds of Quezon City. He bought it from
Pacific Banking Corporation, the mortgagee of said property. The bank had acquired it from
the spouses Maximo and Justina Gabriel at a public auction on March 19, 1983. When
petitioner bought the parcel of land there was a small house on its southeastern portion. It
occupied one meter of the two-meter wide easement of right of way the Gabriel spouses
granted to the Espinolas, predecessors-in-interest of private respondents, in a Contract of
Easement of Right of Way. The pertinent portion of the contract dated November 28, 1979,
states:
. . . in order to have an access to and from their aforementioned land where their houses are
constructed and to have an outlet to Tandang Sora Ave. which is the nearest public road and
the least burdensome to the servient estate and to third persons, it would be necessary for
them to pass through spouses MAXIMO GABRIEL and JUSTINA CAPUNO’s land and for this
purpose, a path or passageway of not less than two (2) meters wide of said spouses’ property
is necessary for the use of ROMEO, RODOLFO, NENITA and AURORA ESPINOLA and for
all their needs in entering their property.
xxx
WHEREFORE, in view of the fact that the property of the ESPINOLA had been bought by them
from MAXIMO CAPUNO, father of MAXIMO GABRIEL, spouses MAXIMO GABRIEL and
JUSTINA CAPUNO hereby agree and permit RODOLFO, ROMEO, NENITA and AURORA
ESPINOLA and their families to have a permanent easement of right of way over the
aforementioned property of said spouses limited to not more than two meters wide, throughout
the whole length of the southeast side of said property and as specifically indicated in the
attached plan which is made an integral part of this Contract as Annex "A";
This Agreement shall be binding between the parties and upon their heirs, successors, assigns,
without prejudice in cases of sale of subject property that will warrant the circumstances.3
Unknown to petitioner, even before he bought the land, the Gabriels had constructed the
aforementioned small house that encroached upon the two-meter easement. Petitioner was
also unaware that private respondents, Julio Sebastian and Shirley Lorilla, had filed on May 8,
1991, Civil Case No. Q-91-8703, for easement, damages and with prayer for a writ of
preliminary injunction and/or restraining order against the spouses Gabriel.4 As successors-in-
interest, Sebastian and Lorilla wanted to enforce the contract of easement.
On May 15, 1991, the trial court issued a temporary restraining order. On August 13, 1991, it
issued a writ of preliminary mandatory injunction ordering the Gabriels to provide the right of
way and to demolish the small house encroaching on the easement. On August 15, 1991, the
Gabriels filed a motion for reconsideration which was also denied. Thus, they filed a petition
for certiorari before the Court of Appeals.
On March 26, 1992, the Eighth Division of the Court of Appeals dismissed the petition and
upheld the RTC’s issuances. The decision became final and executory on July 31, 1992.5
On January 5, 1995, Judge Tirso Velasco of the RTC in Quezon City, Branch 88, issued an
Alias Writ of Demolition. On June 20, 1995, the sheriff tried to demolish the small house
pursuant to the writ. Petitioner filed a Third Party Claim with Prayer to Quash Alias Writ of
Demolition. He maintains that the writ of demolition could not apply to his property since he
was not a party to the civil case. His Third Party Claim with prayer to quash the writ of demolition
was denied for lack of merit on August 16, 1995.6 The motion for reconsideration as well as
the Supplemental Motion for Reconsideration dated September 12, 1995 were denied on
October 19, 1995.7
Petitioner, thereafter, filed a petition for certiorari before the Court of Appeals, docketed as CA-
G.R. SP No. 39166, asserting that the existence of the easement of right of way was not
annotated in his title and that he was not a party to Civil Case No. Q-91-8703, hence the
contract of easement executed by the Gabriels in favor of the Espinolas could not be enforced
against him. The Court of Appeals dismissed the petition for lack of merit and denied the
reconsideration, disposing thus:
WHEREFORE, the instant petition is hereby dismissed by this court for lack of merit.
No costs considering the failure of private respondents to file their comment, despite notice.8
Hence, this instant petition.
Petitioner now avers that the appellate court erred in declaring,
(1) THAT FOLLOWING THE ESSENCE OF INHERENCE AND INTRANSMISSIBILITY OF AN
EASEMENT, A RIGHT OF WAY CAN EXIST EVEN IF THEY ARE NOT EXPRESSLY STATED
OR ANNOTATED ON THE TORRENS TITLE;
(2) THAT PETITIONER, AS PROSPECTIVE BUYER, SHOULD HAVE EXERCISED
ORDINARY PRUDENCE BY TAKING THE INITIATIVE TO DETERMINE THAT AN
EASEMENT HAS BEEN CONSTITUTED ON THE PROPERTY HE INTENDS TO BUY; AND,
(3) THAT IN AS MUCH AS THE HEREIN PETITIONER IS NOT A PARTY TO CIVIL CASE
NO. Q-91-8703, HE CANNOT BE BOUND BY ANY JUDGMENT OR ORDER RENDERED
THEREIN.9
Primarily, the issue is whether the easement on the property binds petitioner.
Petitioner argues it could not be enforced against him. First, he says that a right of way cannot
exist when it is not expressly stated or annotated on the Torrens title. According to him, even
if an easement is inherent and inseparable from the estate to which it actively belongs as
provided in Art. 617 of the Civil Code,10 the same is extinguished when the servient estate is
registered and the easement was not annotated in said title conformably with Section 39 of the
Land Registration Law. Second, petitioner points out that the trial court erred when it faulted
him for relying solely on the clean title of the property he bought, as it is well-settled that a
person dealing with registered land is not required to go beyond what is recorded in the title.
He adds that it is private respondents who should have made sure their right of way was
safeguarded by having the same annotated on the title with the Register of Deeds. He adds
that Section 76 of P.D. No. 152911 also requires that when a case is commenced involving
any right to registered land under the Land Registration Law (now the Property Registration
Decree), any decision on it will only be effectual between or among the parties thereto, unless
a notice of lis pendens of such action is filed and registered in the registry office where the land
is recorded. There was no such annotation in the title of the disputed land, according to
petitioner. Lastly, since he was not a party to Civil Case No. Q-91-8703, petitioner argues that
he cannot be bound by the writ of demolition and be forcibly divested of a portion of his land
without having his day in court.
Private respondents Sebastian and Lorilla, for their part, adopted the disquisition of the
appellate court as their Comment and asked for the dismissal of the petition and P100,000.00
in damages. In its decision the appellate court, citing the decision of the lower court, stressed
that unlike other types of encumbrance of real property, a servitude like a right of way can exist
even if they are not expressly stated or annotated as an encumbrance in a Torrens title because
servitudes are inseparable from the estates to which they actively or passively belong.
Moreover, Villanueva was bound by the contract of easement, not only as a voluntary easement
but as a legal easement. A legal easement is mandated by law, and continues to exists unless
its removal is provided for in a title of conveyance or the sign of the easement is removed
before the execution of the conveyance conformably with Article 64912 in accordance with
Article 61713 of the Civil Code.
At the outset, we note that the subject easement (right of way) originally was voluntarily
constituted by agreement between the Gabriels and the Espinolas. But as correctly observed
by the Court of Appeals, the easement in the instant petition is both (1) an easement by grant
or a voluntary easement, and (2) an easement by necessity or a legal easement. A legal
easement is one mandated by law, constituted for public use or for private interest, and
becomes a continuing property right.14 As a compulsory easement, it is inseparable from the
estate to which it belongs, as provided for in said Article 617 of the Civil Code. The essential
requisites for an easement to be compulsory are: (1) the dominant estate is surrounded by
other immovables and has no adequate outlet to a public highway; (2) proper indemnity has
been paid; (3) the isolation was not due to acts of the proprietor of the dominant estate; (4) the
right of way claimed is at a point least prejudicial to the servient estate; and (5) to the extent
consistent with the foregoing rule, where the distance from the dominant estate to a public
highway may be the shortest.15 The trial court and the Court of Appeals have declared the
existence of said easement (right of way). This finding of fact of both courts below is conclusive
on this Court,16 hence we see no need to further review, but only to re-affirm, this finding. The
small house occupying one meter of the two-meter wide easement obstructs the entry of private
respondents’ cement mixer and motor vehicle. One meter is insufficient for the needs of private
respondents. It is well-settled that the needs of the dominant estate determine the width of the
easement.17 Conformably then, petitioner ought to demolish whatever edifice obstructs the
easement in view of the needs of private respondents’ estate.
Petitioner’s second proposition, that he is not bound by the contract of easement because the
same was not annotated in the title and that a notice of lis pendens of the complaint to enforce
the easement was not recorded with the Register of Deeds, is obviously unmeritorious. As
already explained, it is in the nature of legal easement that the servient estate (of petitioner) is
legally bound to provide the dominant estate (of private respondents in this case) ingress from
and egress to the public highway.1âwphi1
Petitioner’s last argument that he was not a party to Civil Case No. Q-91-8703 and that he had
not been given his day in court, is also without merit. Rule 39, Sec. 47, of the Revised Rules of
Court:
SEC. 47. Effect of judgments or final orders. – The effect of a judgment or final order rendered
by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may
be as follows:
(a) In case of a judgment or final order against a specific thing, or in respect to the probate of
a will, or the administration of the estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his relationship to another, the
judgment or final order is conclusive upon the title to the thing, the will or administration, or the
condition, status or relationship of the person; however, the probate of a will or granting of
letters of administration shall only be prima facie evidence of the death of the testator or
intestate;
(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or
as to any other matter that could have been raised in relation thereto, conclusive between the
parties and their successors in interest by title subsequent to the commencement of the action
or special proceeding, litigating for the same thing and under the same title and in the same
capacity; and
(c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment or final order which appears upon its face
to have been so adjudged, or which was actually and necessarily included therein or necessary
thereto. (Emphasis ours).
Simply stated, a decision in a case is conclusive and binding upon the parties to said case and
those who are their successor in interest by title after said case has been commenced or filed
in court.18 In this case, private respondents, Julio Sebastian and Shirley Lorilla, initiated Civil
Case No. Q-91-8703 on May 8, 1991,19 against the original owners, the spouses Maximo and
Justina Gabriel. Title in the name of petitioner was entered in the Register of Deeds20 on March
24, 1995, after he bought the property from the bank which had acquired it from the Gabriels.
Hence, the decision in Civil Case No. Q-91-8703 binds petitioner. For, although not a party to
the suit, he is a successor-in-interest by title subsequent to the commencement of the action
in court.
WHEREFORE, the instant petition is DENIED. The assailed decision and resolution of the
Court of Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
G.R. No. 114348 September 20, 2000
NATIONAL IRRIGATION ADMINISTRATION, petitioner,
vs.
COURT OF APPEALS and DICK MANGLAPUS, respondents.
PARDO, J.:
This case is an appeal1 from the decision of the Court of Appeals2 affirming in toto the decision
of the Regional Trial Court, Branch 04, Tuguegarao, Cagayan3 ruling in favor of private
respondent Dick Manglapus (hereinafter referred to as "Manglapus"), and ordering petitioner
National Irrigation Administration (hereinafter referred to as "NIA") to pay Manglapus one
hundred fifty thousand six hundred pesos (P150,600.00), and fifty thousand pesos
(P50,000.00), as compensatory damages, five thousand pesos (P5,000.00), as attorney's fees,
and two thousand pesos (P2,000.00), as litigation expenses and costs.
First, the relevant facts.
On June 28, 1963, a free patent over three (3) hectares of land, situated in barrio Baybayog,
municipality of Alcala, province of Cagayan was issued in the name of respondent's
predecessor-in-interest, Vicente Manglapus, and registered under Original Certificate of Title
No. P-24814, in his name. The land was granted to Vicente Manglapus,4 subject to the
following proviso expressly stated in the title:5
"TO HAVE AND TO HOLD the said tract of land, with the appurtenances thereunto of right
belonging unto the said VICENTE MANGLAPUS and to his heirs and assigns forever, subject
to the provisions of sections 113, 121, 122 and 124 of Commonwealth Act. No. 141, as
amended which provide that except in favor of the Government or any of its branches, units, or
institutions, the land hereby acquired shall be inalienable and shall not be subject to
encumbrance for a period of five (5) years from the date of this patent, and shall not be liable
for the satisfaction of any debt contracted prior to the expiration of that period; that it shall not
be encumbered, alienated, or transferred to any person, corporation, association or partnership
not qualified to acquire lands of the public domain under said Commonwealth Act No. 141, as
amended; and that it shall not be subject to any encumbrance whatsoever in favor of any
corporation, association or partnership except with the consent of the grantee and the approval
of the Secretary of Agriculture and Natural Resources and solely for educational, religious or
charitable purposes or for a right of way; and subject finally to all conditions and public
easements and servitudes recognized and prescribed by law especially those mentioned in
sections 109, 110, 111, 112, 113 and 114 of Commonwealth Act No. 141 as amended, and the
right of the Government to administer and protect the timber found thereon for a term of five
(5) years from the date of this patent, provided, however, that the grantee or heirs may cut and
utilize such timber for his or their personal use (emphasis ours)."
Subsequently, respondent Manglapus acquired the lot from Vicente Manglapus by absolute
sale.
On July 18, 1974, the land was registered in Dick Manglapus' name under Transfer Certificate
of Title No. T-26658 of the Register of Deeds for the Province of Cagayan.6 The land is
particularly described as follows:7
"Lot No. 3559, Pls-497, with an area of 30,438 square meters, and covered by TRANSFER
CERTIFICATE OF TITLE NO. T-26658, and Tax Declaration No. 11985."
Sometime in 1982, NIA entered into a contract with Villamar Development Construction. Under
the contract, NIA was to construct canals in Amulung, Cagayan and Alcala, Cagayan. NIA then
entered a portion of Manglapus' land and made diggings and fillings thereon.8
The portion of Manglapus' land entered into by NIA is described as follows:9
"In a sketch prepared by NIA's employee labeled as NIA canal "Lateral "D", with an area of
7,880 square meters, which is a portion of Lot 3559, Pls-497."
On March 14, 1991, Manglapus filed with the Regional Trial Court, Tuguegarao, Cagayan a
complaint for damages against NIA.10 Manglapus alleged that NIA's diggings and fillings
destroyed the agricultural use of his land and that no reasonable compensation was paid for
its taking.11
Despite service of notice of the pre-trial conference,12 NIA did not appear at the pre-trial
conference.13
On December 3, 1991, the trial court declared NIA in default and received Manglapus' evidence
ex parte.14
On December 23, 1991, the trial court rendered a decision in favor of Manglapus, thus:15
"WHEREFORE, and in consideration of the foregoing, the Court finds preponderance of
evidence in favor of the plaintiff and against the defendant:
"1) Ordering the defendant to pay plaintiff the sum of One Hundred Fifty Thousand Six Hundred
Pesos (P150,600.00) and Fifty Thousand (P50,000.00) Pesos as compensatory damages;
"2) Ordering the defendant to pay to plaintiff the sum of Five Thousand Pesos (P5,000.00) as
attorney's fees and Two Thousand Pesos (P2,000.00) as litigation expenses; and
"3) To pay the cost of the suit.
"SO ORDERED."
On January 27, 1992, NIA filed a motion to lift the order of default dated December 3, 1991,
and to set aside the afore-quoted decision of December 23, 1991.16
On June 3, 1992, the trial court issued a resolution denying the motion for lack of merit.17
On July 17, 1992, NIA filed a notice of appeal to the Court of Appeals.18
On July 27, 1992, the trial court gave due course to the appeal and ordered the transmission
of the original records to the Court of Appeals.19
On July 30, 1992, Manglapus filed a motion for execution of judgment with the trial court.20
On August 7, 1992, the NIA through the Solicitor General filed an opposition to the motion for
execution.21
On August 17, 1992, the trial court declared that since the notice of appeal of NIA was given
due course, the motion for execution was "moot and academic."22
On March 8, 1994, the Court of Appeals promulgated its decision, the dispositive portion of
which reads:23
"WHEREFORE, PREMISES CONSIDERED, the decision appealed from is hereby AFFIRMED
in toto and the appeal is hereby DISMISSED.
"SO ORDERED."
Hence, this appeal.24
The sole issue is whether the NIA should pay Manglapus just compensation for the taking of a
portion of his property for use as easement of a right of way.
We find that NIA is under no such obligation. We sustain the appeal.
We agree with NIA that the Transfer Certificate of Title25 and the Original Certificate of Title26
covering the subject parcel of land contained a reservation granting the government a right of
way over the land covered therein.27
The transfer certificate of title, on which both the trial court and Court of Appeals relied, contains
such a reservation. It states that title to the land shall be:28
". . . subject to the provisions of said Land Registration Act and the Public Land Act, as well as
those of Mining Laws, if the land is mineral, and subject, further to such conditions contained
in the original title as may be subsisting (emphasis ours)."
Under the Original Certificate of Title,29 there was a reservation and condition that the land is
subject to "to all conditions and public easements and servitudes recognized and prescribed
by law especially those mentioned in Sections 109, 110, 111, 112, 113 and 114,
Commonwealth Act No. 141, as amended." This reservation, unlike the other provisos30
imposed on the grant, was not limited by any time period and thus is a subsisting condition.
Section 112, Commonwealth Act No. 141, provides that lands granted by patent,
"shall further be subject to a right of way sot exceeding twenty meters in width for public
highways, railroads, irrigation ditches, aqueducts, telegraphs and telephone lines, and similar
works as the Government or any public or quasi-public service or enterprises, including mining
or forest concessionaires may reasonably require for carrying on their business, with damages
for the improvements only (emphasis ours)."
We note that the canal NIA constructed was only eleven (11) meters in width. This is well within
the limit provided by law.31 Manglapus has therefore no cause to complain.
Article 619 of the Civil Code provides that, "Easements are established either by law or by the
will of the owners. The former are called legal and the latter voluntary easements." In the
present case, we find and declare that a legal easement of a right-of-way exists in favor of the
government. The land was originally public land, and awarded to respondent Manglapus by
free patent. The ruling would be otherwise if the land were originally private property, in which
case, just compensation must be paid for the taking of a part thereof for public use as an
easement of a right of way.32
Neither can Manglapus argue that he was a transferee or buyer in good faith. Under the Torrens
system, for one to be a buyer in good faith and for value, the vendee must see the transfer
certificate of title and rely upon the same. 33 Here, the annotation on the transfer certificate of
title imposed on Manglapus the duty to refer to the conditions annotated on the back of the
original certificate of title. This, he did not do. The law cannot protect him. Manglapus is a
transferee with notice of the liens annotated in the title.
One who deals with property registered under the Torrens system is charged with notice of
burdens and claims that are annotated on the title.34
WHEREFORE, the Court GRANTS the petition for review on certiorari, and REVERSES the
decision of the Court of Appeals in CA-G. R. CV No. 38835.
IN LIEU THEREOF, the Court SETS ASIDE the decision of the Regional Trial Court, Branch
IV, Tuguegarao, Cagayan in Civil Case No. 4266, and DISMISSES the complaint.
No costs.
SO ORDERED.
Davide, Jr., C .J ., Puno and Kapunan, JJ ., concur.
Ynares-Santiago, J ., took no part.
G.R. No. 125018 April 6, 2000
REMMAN ENTERPRISES, INC., petitioner,
vs.
COURT OF APPEALS and CRISPIN E. LAT, respondents.
BELLOSILLO, J.:
REMMAN ENTERPRISES, INC. (REMMAN), and CRISPIN E. LAT are adjoining landowners
in Barangay Bugtong Na Pulo, Lipa City. The land of Lat containing an area of 1.8 hectares is
agricultural and planted mostly with fruit trees while REMMAN occupies a land area of fifteen
(15) hectares six (6) hectares of which are devoted to its piggery business. REMMAN's land is
one and a half (1 1/2) meters higher in elevation than that of respondent Lat.
Sometime in July 1984 Lat noticed that REMMAN's waste disposal lagoon was already
overflowing and inundating one-fourth (1/4) of Lat's plantation. He made several
representations with REMMAN but they fell on deaf ears. On 14 March 1985, after almost one
(1) hectare of Lat's plantation was already inundated with water containing pig manure, as a
result of which the trees growing on the flooded portion started to wither and die, Lat filed a
complaint for damages with preliminary mandatory injunction against REMMAN. Lat alleged
that the acidity of the soil in his plantation increased because of the overflow of the water heavy
with pig manure from REMMAN's piggery farm.
REMMAN denied all the allegations of Lat and raised as an affirmative defense that measures
such as the construction of additional lagoons were already adopted to contain the waste water
coming from its piggery to prevent any damage to the adjoining estates.
After conducting an ocular inspection and evaluating the evidence of both parties the Regional
Trial Court found that indeed REMMAN’s waste disposal lagoon overflowed with the
contaminated water flooding one (1) hectare of Lat's plantation. The waste water was ankle-
deep and caused death and destruction to one (1) jackfruit tree, fifteen (15) coconut trees, one
hundred twenty-two (122) coffee trees, and an unspecified number of mango trees, bananas
and vegetables. As a consequence, the trial court ordered REMMAN to indemnify Lat
P186,975.00 for lost profits for three (3) crop years and P30,000.00 as attorney's fees.1
The decision of the court a quo was affirmed in toto by the Court of Appeals.2
In this Petition for Review on Certiorari REMMAN prays that we pass upon the findings of the
trial court as well as of the appellate court. REMMAN insists that factual findings of lower courts
may be passed upon, reviewed and reversed: (a) when the conclusion is a finding grounded
entirely on speculation, surmises or conjectures; (b) when the inference made is manifestly
mistaken, absurd or impossible; (c) when there is grave abuse of discretion; (d) when the
judgment is based on a misapprehension of facts; (e) when the Court of Appeals manifestly
overlooked certain relevant facts not disputed by the parties and which, if properly considered,
would justify a different conclusion; (f) when the conclusions of the Court of Appeals are not
supported by the evidence on record; (g) when facts of substance were overlooked which, if
correctly considered, might have changed the outcome of the case; and, (h) when the findings
of the Court of Appeals are not in accord with what reasonable men would readily accept are
the correct inferences from the evidence extant in the records.3
Indeed, in the abovementioned instances, the factual milieu of a particular case may be passed
upon, reversed or modified by this Court. But examination of the record reveals that all the
above instances are unavailing. From this point of view alone the instant petition is dismissible.
Nevertheless, we shall discuss them hereunder to dispose finally of the contentions of
REMMAN.
First, REMMAN argues that its liability for the damages suffered by Lat was not clearly
established.
We disagree. During the ocular inspection conducted by the lower court where representatives
of both parties were present, it was established that the waste water containing pig manure
was continuously flowing from REMMAN's piggery farm to Lat's plantation. The water was
ankle-deep and flooded one (1) hectare of Lat's plantation. The overflow of the "acidic,
malodorous and polluted water" continued from June 1984 to March 1985 thus destroying one
(1) jackfruit tree, fifteen (15) coconut trees, one hundred an twenty-two (122) coffee trees, and
an unspecified number of mango trees, bananas and vegetables.4
In addition, the appellate court found that there was indeed negligence on the part of REMMAN
which directly caused the damage to the plantation of Lat. Thus —
. . . Negligence was clearly established. It is uncontroverted that the land of appellee was
flooded on account of the overflow of acidic, malodorous and polluted water coming from the
adjacent piggery farm of appellant sometime in May 1984. This resulted in the impairment of
the productivity of appellee's land as well as the eventual destruction and death of several fruit
trees, such as coconuts, coffee, jackfruits, bananas and other plants . . . . Appellant cannot
avoid liability because their negligence was the proximate cause of the damage. Appellee's
property was practically made a catch-basin of polluted water and other noxious substances
emptying from appellant's piggery which could have been prevented had it not been for the
negligence of appellant arising from its: (a) failure to monitor the increases in the level of water
in the lagoons before, during and after the heavy downpours which occurred during the rainy
months of 1984; (b) failure to augment the existing lagoons prior to the incident, notwithstanding
the fact that at the time of the flooding, the piggery had grown to a capacity of 11,000 heads,
and considering that it was reasonably forseeable that the existing waste disposal facilities
were no longer adequate to accomodate the increasing volume of waste matters in such a big
farm; and more importantly, (c) the repeated failure to comply with their promise to appellee.5
Second, REMMAN argues that the trial court as well as the Court of Appeals should not have
rejected its request for the production of Lat's income tax returns. According to REMMAN had
Lat's income tax returns been produced, the issue of the alleged damages suffered by Lat
would have been settled.
This argument is moot, if not trite. For this matter has been laid to rest when we affirmed the
Court of Appeals' decision in an earlier case involving the same parties.6 In sustaining the trial
court's quashal of the subpoena duces tecum previously issued compelling Lat to produce his
income tax returns for the years 1982-1986, the appellate court explained that the production
of the income tax returns would not necessarily serve to prove the special and affirmative
defenses set up by REMMAN nor rebut Lat's testimony regarding the losses he sustained due
to the piggery. The tax returns per se could not reflect the total amount of damages suffered
by Lat, as income losses from a portion of the plantation could be offset by any profit derived
from the rest of the plantation or from other sources of income. Conversely, losses incurred
from other sources of income would be totally unrelated to the income from the particular
portion of the plantation flooded with waste matter coming from REMMAN's piggery.7
Third, REMMAN contends that the damages allegedly sustained by Lat have not been
satisfactorily established.1âwphi1
We a not convinced. The factual findings of the court a quo rightly support its conclusions on
this respect —
Coming now to the issue of damages, We find appellant's allegations not well-taken. Appellant
contends that actual and compensatory damages require evidentiary proof, and there being no
evidence presented as to the necessity of the award for damages, it was erroneous for the
lower court to have made such award. It must be remembered that after the ocular inspection,
the court a quo rendered an inventory of dead and rotten trees and plants found in appellee's
property. Appellee also testified on the approximate annual harvest and fair market value
thereof. Significantly, no opposition or controverting evidence was presented by appellant on
the matter. Hence, appellant is bound thereby and cannot now be heard to complain. As
correctly held by the court a quo:
An ocular inspection has been conducted by the trial court. The inventory of the trees damaged
and the itemized valuation placed therein by private respondent after the ocular inspection
which is not rebutted by the petitioner, is the more accurate indicator of the said amount prayed
for as damages. If the valuation is indeed unreasonable, petitioner should present controverting
evidence of the fair market value of the crops involved. The trial court held that the private
respondent himself had been subjected to extensive cross and re-cross examination by the
counsel for the petitioner on the amount of damages.8
Finally, REMMAN complains that the damages, if any, were due to a fortuitous event.
Again, we cannot agree with petitioner. We defer instead to the findings opinions expressed by
the lower courts —
Even assuming that the heavy rains constituted an act of God, by reason of their negligence,
the fortuitous event became humanized, rendering appellants liable for the ensuing damages.
In National Power Corporation v. Court of Appeals, 233 SCRA 649 (1993), the Supreme Court
held:
Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to escape
liability for the loss or damage sustained by private respondents since they, the petitioners,
were guilty of negligence. This event then was not occasioned exclusively by an act of God or
force majeure; a human factor — negligence or imprudence — had intervened. The effect then
of the force majeure in question may be deemed to have, even if only partly, resulted from the
participation of man. Thus, the whole occurrence was thereby humanized, as it were, and
removed from the rules applicable to acts of God.
As regards the alleged natural easement imposed upon the property of appellee, resort to
pertinent provisions of applicable law is imperative. Under the Civil Code, it is provided:
Art. 637. Lower estates are obliged to receive the waters which naturally and without the
intervention of man descend from the higher estates, as well as the stones or earth which they
carry with them.
The owner of the lower estate cannot construct works which will impede this easement; neither
can the owner of the higher estate make works which will increase the burden.
A similar provision is found in the Water Code of the Philippines (P.D. No. 1067), which
provides:
Art. 50. Lower estates are obliged to receive the water which naturally and without the
intervention of man flow from the higher estates, as well as the stone or earth which they carry
with them.
The owner of the lower estate cannot construct works which will impede this natural flow, unless
he provides an alternative method of drainage; neither can the owner of the higher estate make
works which will increase this natural flow.
As worded, the two (2) aforecited provisions impose a natural easement upon the lower estate
to receive the waters which naturally and without the intervention of man descend from higher
states. However, where the waters which flow from a higher state are those which are artificially
collected in man-made lagoons, any damage occasioned thereby entitles the owner of the
lower or servient estate to compensation.9
On the basis of the foregoing discussion, it is crystal clear that REMMAN is directly accountable
to Lat for the damages sustained by him. The negligence of REMMAN in maintaining the level
of waste water in its lagoons has been satisfactorily established. The extent of damages
suffered by Lat remains unrebutted; in fact, has been proved.
WHEREFORE, the petition is DENIED. The 19 October 1995 Decision of the Court of Appeals
affirming that of the Regional Trial Court-Br. 16, Lipa City, holding petitioner Remman
Enterprises, Inc. (REMMAN) liable to private respondent Crispin E. Lat for damages and to
indemnify the latter P186,975.00 for lost profits for three (3) crop years and P30,000.00 as
attorneys fees, is AFFIRMED. Costs against petitioner.1âwphi1.nêt
SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., JJ., concur.
G.R. No. L-7909 January 18, 1957
CIPRIANO E UNSON, petitioner-appellant,
vs.
HON. ARSENIO H. LACSON, as Mayor of the City of Manila, and GENATO COMMERCIAL
CORPORATION, respondents-appellees.
Plantilla, Unson and Limjoco for appellant.
City Fiscal Eugenio Angeles and Assistant City Fiscal Arsenio Nañawa for appellee
Mayor Lacson.
Arturo A. Alafriz for appellee Genato Commercial Corporation.
CONCEPCION, J.:
This is an action to annual a municipal ordinance and cancel a contract of lease of part of
"Callejon de Carmen," in the City of Manila. Its Mayor and the Genato Commercial Corporation
— hereinafter referred to as Genato, for the sake of brevity — lessor and lessee, respectively,
under said contract, are the respondents herein. After due trial, the Court of First Instance of
Manila rendered a decision dismissing the petition, with costs against the petitioner, who has
appealed from said decision. The case is before us the validity of a municipal ordinance is
involved therein.
Petitioner, Cipriano E. Unson, is the owner of Lot No. 10, Block 2537, of the Cadastral Survey
of the City of Manila, with an area of 1,537.20 square meters, more or less. It is bounded, on
the North, by R. Hidalgo Streets; on the East or Northeast, by Lot No. 12, belonging to Genato,
and, also, by a narrow strip of land running eastward (from 1.68 to 2.87 meters in width and
from 29.90 to 28.4 meters in lenght), known as Lot No. 11 (of about 123.7 squares meters),
which the City of Manila regards as its patrimonial property; on the West, by private property
whose owner is not named in the record; and on the South or Southeast, by a strip of land,
narrower than Lot 11, running from East to West (about 1.68 meters in which in width and 26.14
meters in lenght, or an area of about 45 square meters, more or less), known as Lot No. 9,
which is also claimed by said City as its patrimonial property. Immediately South of this Lot No.
9 is the Northern half of Callejon del Carmen, which is separated from its Southern half by the
Estro de San Sebastian. Several structures exist on the lot of petitioner Unson. There is a
sizeable building on the Northern part, adjoining R. Hidalgo Street, and a small building —
known as "Commerce Building" — on the Southern portion, which adjoins the aforesaid Lot
No. 9. Unson's lot is, and for several years has been leased to the National Government, for
use by the "Mapa High School", as "Rizal Annex" thereof, which has an enrollment of over
1,500 students.
On or about September 28, 1951, the Municipal Board of Manila passed Ordinance No. 3470
withdrawing said Northern portion of Callejon del Carmen from public use, declaring it
patrimonial property of the City and authorizing its lease to Genato. The ordinance provides:
SECTION 1. Those portions of the Callejon del Carmen, Quiapo, having an aggregate area of
709.27 square meters and adjacent to the premises of the Genato Commercial Corporation,
are hereby withdrawn from public use.
SEC. 2. The above piece of land described in Section 1 hereof is hereby declared as
patrimonial property of the government of the City of Manila.
SEC. 3. The lessee of the aforesaid city property with an aggregate area of 709.27 square
meters to Genato Commercial Corporation at a monthly rental of P0.20 per square meters is
hereby authorized.
SEC. 4. This Ordinance shall take effect upon its approval. (Exhibit 2-A, p. 10, Folder of Exhs.)
Upon approval of this ordinance by the City Mayor, the lease contract therein mentioned (pp.
13-21, Record on Appeal) was entered into and Genato constructed a building on said portion
of Callejon del Carmen, at a distance of about 0.765 meter from the Southern boundary of said
Lot No. 9. This strip of Callejon del Carmen and said Lot No. 9 thus form an open space of
about 2.445 meters in width, more or less, separating said building constructed by Genato and
the "Commerce Building" on Unson's lot. Prior thereto, the latter had, on its Southern boundary,
two (2) exits on Callejon del Carmen, which exits had to be closed upon the construction of
said building by Genato. Hence, alleging that Ordinance No. 3470 and the aforementioned
contract of lease with Genato are illegal, petitioner instituted this action, with the prayer
(a) That respondent Genato Commercial Corporation be immediately enjoined from doing
further work in the construction of a wall/or building on that portion of Callejon del Carmen
leased to them immediately upon the petitioner's filing a nominal bond of P500.00, in such other
amount as the court may fix;
(b) That, after trial, the injunction above-mentioned be made permanent, and ordering the
respondent Genato Commercial Corporation to remove whatever construction has been done
by them on said property;
(c) That, also after trial, the Hon. Arsenio H. Lacson, Mayor of the City of Manila, be ordered to
cancel or revoke the building permit and the lease granted to him over the Callejon del Carmen
to the Genato Commercial Corporation;
(d) That respondents be ordered to pay the costs of this suit: and for whatever equitable relief
this Honorable Court may deem just and proper under the premises. (Record on Appeal, p. 5).
The respondents filed their respective answers maintaining the legality of the municipal
ordinance and the contract of lease in question, and, after due trial, the lower court rendered
its aforementioned decision dismissing the case, upon the ground that as owner of Callejon del
Carmen, the City of Manila "has full authority to withdraw such alley from public use and to
convert it into patrimonial property" and that
. . . The City of Manila as owner has the right to use and to dispose of such alley without other
limitations that those established by law (Article 428, New Civil Code), so that when the city of
Manila withdrew it from public use and converted it into patrimonial property, it simply exercised
its right of ownership. The fact that in the Manila Charter there is no provision authorizing the
Municipal Board to withdraw from public use a street and to convert it into patrimonial property,
can not be construed to mean that the Municipal Board has no right at all to do so. That would
be a negation of its right of ownership. Section 18, letter (x),of the Manila Charter gives the
Municipal Board power and authority to lay out, construct and improve streets, avenues, alleys,
sidewalks, etc. and as corollary to that right is the right to close a street and to convert it into
patrimonial property.
Furthermore, Ordinance No. 3470 of the Municipal Board was submitted to and approved by
the National Planning Commission. This body was created by an executive order of the
President of the Republic, and vested with the power and authority to lay out, construct, vacate,
and close streets, avenues, sidewalks, etc. Assuming that the power and authority to vacate or
close a street rest with the State, this power as delegated to the National Planning Commission
by the President in the exercise of his emergency power, and when this body approved said
ordinance, it did so in the exercise of the power delegated to it by the State. Hence the validity
of the ordinance is unquestionable. (Record on Appeal, pp. 27-29.)
Hence, this appeal taken by petitioner Unson, who insists that said Municipal Ordinance No.
3470 is illegal and, accordingly, that the aforementioned contract of lease between Genato and
the City of Manila is null and void.
In this connection, respondents have been unable to cite any legal provision specifically vesting
in the City of Manila the power to close Callejon del Carmen. Indeed, section 18 (x) of Republic
Act No. 409 — upon which appellees rely — authorizes the Municipal Board of Manila, "subject
to the provisions of existing laws, to provide for the laying out, construction and improvement .
. . of streets, avenues, alleys . . . and other public places," but it says nothing about the closing
of any such places. The significance of this silence becomes apparent when contrasted with
section 2246 of the Revised Administrative Code, explicitly vesting in municipal councils of
regularly organized municipalities the power to close any municipal road, street, alley, park or
square, provided that persons prejudiced thereby are duly indemnified, and that the previous
approval of the Department Head shall have been secured. The express grant of such power
to the aforementioned municipalities and the absence of said grant to the City of Manila lead
to no other conclusion than that the power was intended to be withheld from the latter.
Incidentally, said section 2246 refutes the view, set forth in the decision appealed from, to the
effect that the power to withdraw a public street from public use is incidental to the alleged right
of ownership of the City of Manila, and that the authority to close a thorough fare is a corollary
to the right to open the same. If the ownership of the public road carried with it necessarily the
unqualified right of a municipal corporation to close it, by withdrawing the same from public
use, then Congress would have no power to require, as a condition sine qua non, to the
exercise of such right, either the prior approval of the Department Head or the payment of
indemnity to the persons injured thereby. Again, pursuant to section 2243 of the Revised
Administrative Code, the municipal council of regular municipalities shall have authority, among
others:
(a) To establish and maintain municipal roads, streets, alleys, sidewalks, plazas, parks,
playgrounds, levees, and canals.
If, as the lower court held, the power to "construct" an alley entailed the authority to "close" it,
then section 2246, above referred to, would have been unnecessary. To our mind, the main
flaw in appellees' pretense and in the position taken by his Honor, the trial Judge, is one of
perspective. They failed to note that municipal corporations in the Philippines are mere
creatures of Congress; that, as such, said corporations possess, and may exercise, only such
power as Congress may deem to fit to grant thereto; that charters of municipal corporations
should not be construed in the same manner as constitutions;1 and that doubts, on the powers
of such corporations, must be resolved in favor of the State, and against the grantee.2
Lastly, the authority of the local governments to enact municipal ordinances is subject to the
general limitation that the same shall not be "repugnant to law". This is so by specific provision
of section 2238 of the Revised Administrative Code, as well as because Congress must be
presumed to have withheld from municipal corporations, as its agents or delegates, the
authority to defeat, set at naughty or nullify its own acts (of Congress)unless the contrary
appears in the most explicit, indubitable, and unequivocal manner — and it does no so appear
in the case at bar. What is more, section 18(x) of Republic Act No. 409, positively declares that
the power of the City of Manila to provide for the construction of streets and alleys shall be
"subject to the provisions of existing law. . . .
However, the ordinance and the contract of the lease under consideration are inconsistent with
Article 638 of the Civil Code of the Philippines, the first paragraph of which reads:
The banks of rivers and streams, even in case they are of private ownership, are subject
throughout their entire length and within a zone of three meters along their margins, to the
easement of the public use in the general interest of navigation, float age, fishing and salvage.
Obviously, the building constructed by Genato on the portion of Callejon del Carmen in dispute
renders it impossible for the public to use the zone of three meters along the Northern margin
of the Estero de San Sebastian for the purposes set forth in said Article 638. We are not
unmindful of the cases of Ayala de Roxas vs. City of Manila (6 Phil., 251) and Chang Hang
Ling vs. City of Manila (9 Phil., 215), in which this Court refused to enforce a similar easement
— provided for in Article 553 of the Civil Code of Spain — upon private property adjoining the
Estero de Sibacong and the Estero de la Quinta, respectively. The decisions in said cases were
predicated, however, upon the fact that, under the Spanish Law of Waters, "the power of the
administration do not extend to the establishment of new easements upon private property but
simply to preserve old ones," and that, pursuant to the Philippine Bill (Act of Congress of July
1, 1902) and Article 349 of the Civil Code of Spain, no one shall be deprived of his property,
except by competent authority and with sufficient cause of public utility, always after proper
indemnity. These considerations are inapplicable to the case at bar, for, as regards Callejon
del Carmen, the aforementioned easement of public use is not new. Besides, said alley is not
private property. It belongs to the State.3 And, even if it were — for it is not — patrimonial
property of the City of Manila, the same — as a creature of Congress, which may abolish said
municipal corporation and assume the power to administer directly the patrimony of the City,
for the benefit of its inhabitants — cannot so use or dispose of said alley as to defeat the policy
set forth in the said Article 638 by the very legal creator of said political unit. (III Dillon on
Municipal Corporations, pp. 1769-1771, 1781-1783,1803-1804.)
It is urged, however, that the absence of authority of the Municipal Board of Manila has been
cured by the fact that Ordinance no. 3470 had been approved by the National Urban Planning
Commission. This pretense in untenable for:
1. In the case of the University of the East vs. The City of Manila (96 Phil., 316), decided on
December 23, 1954, we held, in effect, that the grant of powers to the National Urban Planning
Commission, under Executive Orders Nos. 98 and 367, amounted to an undue delegation of
legislative powers, for lack of "specific standards and limitations to guide the commission in the
exercise of the wide discretion granted to it."
2. Said Commission created by the Executive Order No. 98, dated March 11, 1946, pursuant
to the emergency powers of the President under Commonwealth Act No. 671, could not
possibly confer upon the City of Manila any power denied thereto by its New Charter —
Republic Act No. 409 — not only because said emergency powers became inoperative as soon
as Congress met in regular sessions after the liberation of the Philippines (Araneta vs.
Dinglasan, Rodriguez vs. Treasurer of the Philippines, Guerrero vs. Com. of Customs, and
Barredo vs. Commission on Elections, 45 Off. Gaz., 4411, 4419; Rodriguez vs. Gella, 49 Off.
Gaz., 465), but, also, because in case of conflict between said executive order, dated March
11, 1946, and the aforementioned Republic Act. No. 409, which was approved, and became
effective, on June 18, 1949, the latter must prevail, being posterior in point of time, as well as
act of the principal (in relation to the emergency powers delegated to the President, by
Commonwealth Act No. 671), which must prevail over that of the agent.
3. Pursuant to said executive order, the acts of the municipal corporations, relative to the
reconstruction and development of urban areas — even if within the scope of the general
authority vested in said local governments by the charters thereof — shall be ineffective unless
approved by the National Urban Planning Commission, or in accordance with the plans adopted
or regulations issued by the same. In other words, the purpose of said executive order was not
to enlarge the powers of local governments, but to qualify and limit the same, with a view to
accomplishing a coordinated, adjusted, harmonious reconstruction and development of said
urban areas.
4. Properties devoted to public use, such as public streets, alleys and parks are presumed to
belong to the State. Municipal corporations may not acquire the same, as patrimonial property,
without a grant from the National Government, the title of which may not be divested by
prescription (Municipality of Tigbauan vs. Director of Lands, 35 Phil., 584). Hence, such
corporations may not register a public plaza (Nicolas vs. Jose, 6 Phil., 598). A local government
may not even lease the same (Municipality of Cavite vs. Rojas, 30 Phil., 602). Obviously, it may
not establish title thereto, adverse to the State, by withdrawing the plaza — and, hence, an
alley — from public use and declaring the same to be patrimonial property of the municipality
or city concerned, without express, or, at least, clear grant of authority therefor by Congress.
5. In fact, the Department of Engineering and Public Works of the City of Manila had objected
to the lease in question, upon the ground that Callejon del Carmen is communal property. In
its 1st indorsement of June 4, 1953, to the City of Mayor, said department used the following
language:
1. Records in the present lease of Genato Commercial Corporation of a portion of City property
measuring 709.27 square meters, more or less, show that this Office had consistently been
strongly against the lessee of this City property. Even before the passage of Ordinance No.
3470 (withdrawing from public use those portions of Callejon del Carmen, Quiapo, adjacent to
the premises of Genato Commercial Corporations; declaring the same as patrimonial property
of the government of the City of Manila and authorizing the lease of said City property with an
aggregate area of 709.27 square meters to Genato Commercial Corporation at a monthly rental
of P0.20 per square meter), this office had voiced its vigorous protest to the lease of this City
property to Genato Commercial Corporation several times, in view of the fact that the lots
applied for are communal property which can not be leased or otherwise disposed of (Cavite
vs. Roxas, 30 Phil., 602). This Office had registered its strong objection to the lease of this
property as per our 2nd Indorsement dated Aug. 2, 1951, 4th Indorsement dated August 7,
1951 and 3rd Indorsement dated August 27, 1951, all of which were submitted by this Office
prior to the enactment of Ordinance 3470 on September 28,1951 and its subsequent approval
on October 3, 1951. . . . It can, therefore, clearly be seen from the foregoing, that this Office
had been strongly against the lease of this City property in view of the fact that this is a
communal property. The property herein applied by Mr. Francisco G. Genato is also communal
property of the City of Manila and disapproval of the same is strongly recommended. (Exhibit
C, pp. 4-5, par. 1, Folder of Exhibits; emphasis supplied.)
Wherefore, the decision appealed from is hereby reversed and another one shall be entered
declaring Ordinance No. 3470, as well as the contract of the lease in dispute, null and void,
with costs against the respondents. It is so ordered.
Paras, C.J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Reyes, J.B.L., and
Endencia, JJ., concur.
G.R. No. L-16392 January 13, 1922
MACARIO SOLIS, FLORENTINO JOYA, JULIAN MONTANO, and GREGORIO TRIAS,
plaintiffs-appellees,
vs.
BENEDICTA PUJEDA, VALENTIN GIONGCO, and ROMAN ARANAS, defendants-
appellants.
Teofilo Mendoza for appellants.
Florentino Joya, Modesto Reyes, and Eliseo Ymzon for appellees.
STREET, J.:
The defendant Benedicta Pujeda is the owner of a strip of land in the barrio of Calibuyo,
municipality of Tanza, Cavite, lying along a stream known as the estero of Calibuyo. Prior to
the institution of this action the three plaintiffs named in the caption hereof constructed a dam
of stone or concrete across said stream in order to obtain water for irrigation purposes, and
one of the wings of the dam was made to rest upon the bank which belongs to Benedicta
Pujeda. As a result of this construction, not only were several square meters of land belonging
to Benedicta Pujeda appropriated by the plaintiffs for purposes of construction, but several
hundred additional square meters lying along the stream above the dam and belonging to her
were flooded by the rise of the water consequent upon the building off the dam. Believing
herself to be aggrieved by this, Benedicta Pujeda, with the aid of one Roman Arañas, on or
about July 20, 1918, made an opening in that portion of the dam which abuts upon her property,
to the extent necessary to free the water that had accumulated upon her property. The
perforation thus effected in the dam was about 1 meter wide and 2 meters deep.
Thereafter the present action was instituted by the plaintiffs to restrain Benedicta Pujeda (with
whom is joined her husband Valentin Giongco) and Roman Arañas from interfering with the
reparation of the dam by the plaintiffs, and to enjoin the same defendants from molesting the
plaintiffs in the use of said dam in the future. The plaintiffs also asked that the defendants be
adjudged to pay the sum of P90 to the plaintiffs as damages resulting from the breaking of the
dam. The defendants answered generally and interposed a counterclaim, praying that they be
absolved from the complaint and that the plaintiffs in turn be required to remove the aforesaid
dam and that they be enjoined from reconstructing it or maintaining any other dam in that place
to the prejudice of the defendants. The defendants furthermore prayed that the plaintiffs should
be required to pay damages to the defendants in the amount of P3,000, with costs.
At the hearing the trial judge found the issues in favor of the plaintiffs, and decreed accordingly.
From this judgment the defendants appealed. As no transcript of the oral testimony appears in
record, the facts must be taken as found by the trial judge, in relation with the documents to
which reference is made in his opinion.
The question before us is, whether the plaintiffs have justified the invasion by them of the rights
of Benedicta Pujeda in the manner above stated, for it is evident that if the building of the dam
by the plaintiffs was unauthorized, so much of the construction as rests upon the land of
Benedicta Pujeda constitutes a private nuisance and may be lawfully demolished or removed
by her or by any person acting under her directions. It is incumbent upon the plaintiffs to prove
that they had legal authority to build the dam.
In this connection it appears that when this work was first undertaken several years ago, the
plaintiffs expected to obtain the approval of the Director of Lands for the project, and at that
time they promised to indemnify Benedicta Pujeda for any damaged caused to her by the
construction of the dam. However, after the work had progressed to a certain extent, the
Director of Lands ordered its removal. Later, the Director of Lands proposed as a reasonable
solution of the controversy that, if the plaintiffs desired to continue with the construction of the
dam, they should within thirty days deposit with the Bureau of Lands the sum of P371.68 to
cover the damage that would probably be done to Benedicta Pujeda. This deposit was
apparently made. Still later, upon further protest from Benedicta Pujeda, security was given by
bond to the extent of P1,000. The Director of Lands having thus, inferentially at least, approved
the project under the conditions stated, the plaintiffs proceeded with the construction, and
reliance is now placed by them upon the authority thus granted by the Director of Lands as
sufficient justification for their continuing the work.
Assuming, as we do, that the Director of Lands intended, by the communications referred to in
the decision of the trial judge, to authorized the undertaking referred to, we are nevertheless of
the opinion that under the facts appearing of record he had no power to confer such authority.
By article 143 of the Law of Waters, an easement of buttress can be imposed by administrative
authority with respect to land lying adjacent to public or private waters; but in such case it is
required that an investigation of record shall be made before the easement of buttress is
decreed.
For the purposes of this decision it may be taken for granted that the Bureau of Lands is the
proper repository of the administrative authority conferred in said article with respect to the
decreeing of the easement in case of public waters, and the Director of Lands may be assumed
to be the proper official to conduct the investigation and make the appropriate order.
Nevertheless, the making of the investigation of record is an essential prerequisite to the
exercise of the power. This implies that the interest parties shall have an opportunity to be
heard and that record be made of the proof adduced with reference to the proposed servitude
and the damage to result therefrom. These formalities are essential; otherwise the decreeing
of the servitude would be obnoxious to the constitutional provision which forbids the taking of
property without due process of law. The administrative investigation contemplated in article
143 of the Law of Waters must proceed along the lines of a judicial inquiry, at least to the extent
of giving the parties an opportunity to be heard and making record of the proof pertinent to their
respective contentions.
In the case now before us no investigation of record was made. About all that appears to have
been done was that the watermaster, as representative of the Director of Lands, inspected the
site of the dam and recommended that it be removed, reporting that it had been a failure. The
letters referred to by the court as constituting a license from the Director of Lands to the plaintiffs
to proceed with the work, under the conditions already stated, show a praiseworthy effort on
the part of that official to adjust the controversy upon a fair basis, but they afford no legal
warrant for the plaintiffs to proceed with the construction of the dam.
It appears that the land owned by Benedicta Pujeda is of the class known as friar lands; and
his Honor, the trial judge, seems to have supposed that section 19 of Act No. 1120, referring
to these lands, gives the Government special authority to construct, or to authorized another
to construct, improvements of this character upon such lands. However, we discover nothing
in said provision which, when rightly interpreted, could be considered as conferring upon the
Director of Lands any such extraordinary power as has been here claimed.
It results that the dam in question has been constructed without legal authority, and the action
instituted by the plaintiffs cannot be maintained. The judgment appealed from will therefore be
reversed, and the defendants will be absolved from the complaint.
Under the prayer of their cross-complaint the defendants Benedicta Pujeda, with her husband,
Valentin Giongco, are entitled to an order, which will be accordingly entered, requiring the
plaintiffs within a reasonable time to remove so much of the dam as constitutes a burden upon
the land of Benedicta Pujeda, and to the extent necessary to avoid the flooding or her land by
the obstruction of the dam. In addition to this, judgment will be entered that the same
defendants recover of the plaintiffs the sum of P80, plus the further sum of P6.80 for each year
from April, 1915, until the obstruction mentioned shall have been removed, as ordered. No
special pronouncement will be made as to costs of either instance. So ordered.
Johnson, Araullo, Avanceña and Villamor, JJ., concur.
G.R. No. L-21727 May 29, 1970
CRISPINA SALAZAR, petitioner,
vs.
GUILLERMO GUTIERREZ, and DAMASO MENDOZA, respondents.
Jaime L. Guerrero and Renato B. Bercades for petitioner.
Tañada, Teehankee & Carreon and Jose P. Santillan for respondents.
MAKALINTAL, J.:
Judgment was rendered by the Court of First Instance of Bataan (Civil Case No. 2269) in favor
of the plaintiff, Crispina Salazar, now petitioner; on appeal by the defendants, Guillermo
Gutierrez and Damaso Mendoza, the Court of Appeals reversed (CA-G.R. No. 19489-R); and
the plaintiff elevated the case to us for review by certiorari.
Crispina Salazar is owner of a piece of land (Lot 436 of the Cadastral Survey of Balanga)
situated in Tuyo, Balanga, Bataan, covered by Transfer Certificate of Title 1578 issued by the
Register of Deeds of the said province, and acquired by her from the Municipality of Balanga
on May 4, 1949. The lot is bounded on the northeast by Lot 361, on the southeast by Sapang
Tuyo, on the southwest by Lot 435, and on the northwest by Lot 433.
Lot 433 was registered under the Torrens system on July 23, 1923, with Original Certificate of
Title 2162. Ownership passed to respondent Guillermo Gutierrez by inheritance in 1927, and
Transfer Certificate of Title No. 1059 was issued in his name on June 11, 1928. No annotation
of any lien or encumbrance affecting the land appears on either title.
Before the present controversy arose, Lot 436 and some of the surrounding estates, including
Lot 433, were irrigated with water from Sapang Tuyo, a public stream, flowing through a dike
that traversed Lots 431, 434, 433 and 461. The portion of this dike that passed through Lot 433
branched near the boundary between this lot and Lot 434 into a canal which ran across the
rest of Lot 433 up to Lot 436. It was with the water flowing through this canal that Lot 436 used
to be irrigated.
On February 24, 1953 respondent Damaso Mendoza, a lessee of Lot 433, demolished the said
canal, thereby stopping the flow of the water and depriving Crispina Salazar's Lot 436 of the
irrigation facilities which it had formerly enjoyed. Her requests that the canal be rebuilt and the
water flow restored having been turned down, Salazar commenced the present suit on March
2, 1953, praying that these reliefs be granted her by the Court and that the defendants be
ordered to pay her actual damages in the sum of P900, moral damages in the sum of P5,000,
and P1,000 for attorney's fees, plus costs.
The trial court issued a writ of preliminary injunction as prayed for by the plaintiff, ordering the
defendants to restore the demolished portion of the canal and to refrain from again demolishing
the same pending trial, but the writ was dissolved on March 9, 1953, upon a counterbond filed
by the defendants. The latter answered with their own counterclaim for damages, denied the
substantial averments of the complaint and put up a number of affirmative defenses.
After trial, the Court of First Instance of Bataan, finding that the demolished canal had been in
existence for more than thirty years and that the big dike from which it extended had been
constructed for the use of Lot 436 as well as several other lots belonging to different owners,
rendered judgment on April 10, 1956, ordering the defendants to restore at their expense the
canal in question, to connect it with the canal found in Lot 436 and to cause the corresponding
annotation of the encumbrance on Transfer Certificate of Title 1059 covering Lot 433; and
ordering the defendants to pay the plaintiff the sum of P1,360 annually beginning the
agricultural year 1956-1957 until the restoration of the canal, P4,700 as actual damages,
P5,000 as moral damages and P1,000 as attorney's fees, plus costs.
On July 26, 1963, the Court of Appeals reversed the decision of the Court of First Instance and
held that since the easement of aqueduct over Lot 433 for the benefit of Lot 436 was a voluntary
one, the same was extinguished when Lot 433 was registered on July 23, 1923 and the
corresponding certificate of title was issued without the annotation of said easement as a
subsisting encumbrance.
The respondents have raised a preliminary procedural question, alleging that Section 1 of Rule
46 (now Section 1 of Rule 45), requiring proof of service of a copy of the petition upon the Court
of Appeals, was not complied with. Such omission, however, is not of jurisdictional import. In
an appeal by certiorari upon a question of law, as distinguished from an original petition for
certiorari under Rule 65, the Court of Appeals is merely a nominal party respondent. The
original parties in the trial court are the same parties in the appeal.
The main issue as set forth in the decision of the Court of Appeals is the nature of the easement
of aqueduct claimed by the petitioner. If voluntary, according to the said Court, the easement
was extinguished upon the registration of Lot 433 in 1923, pursuant to Section 39 of Act No.
496, which provides:
But if there are easements or other rights appurtenant to a parcel of registered land which for
any reason have failed to be registered, such easements or rights shall remain so appurtenant
notwithstanding such failure and shall be held to pass with the land until cut off or extinguished
by the registration of the servient estate, or in any other manner. (Emphasis supplied).
In arriving at the conclusion that the easement in question was voluntary and not legal or
compulsory, the Court of Appeals took into consideration the provisions of Articles 557 and 558
of the Spanish Civil Code, now Articles 642 and 643 of the new Civil Code respectively, as
follows:
ART. 642. Any person who may wish to use upon his own estate any water of which he can
dispose shall have the right to make it flow through the intervening estates, with the obligation
to indemnify their owners, as well as the owners of the lower estates upon which the waters
may filter or descend.
ART. 643. One desiring to make use of the right granted in the preceding article is obliged:
(1) To prove that he can dispose of the water and that it is sufficient for the use for which it is
intended;
(2) To show that the proposed right of way is the most convenient and the least onerous to
third persons;
(3) To indemnify the owner of the servient estate in the manner determined by the laws and
regulations.
Specifically the appellate court held that there is no evidence to show that the petitioner has
complied with the three requisites laid down in Article 643 in order to entitle her to claim a legal
easement of aqueduct under Article 642. It bears repeating that the finding thus made, although
apparently factual in character, is premised upon supposed absence of evidence, and therefore
is reviewed by this Court if the premise is clearly contradicted by the record or unjustified upon
other considerations which logically lead to a different conclusion, but which the decision under
review did not take into account.
On the first requisite of Article 643 — that the petitioner must prove that he can dispose of the
water and that it is sufficient for the use for which it is intended — there is the statement of the
trial court that the disputed canal had been in existence since the Spanish regime, or at least
prior to the original registration of Lot 433 in 1923, and that of the Court of Appeals itself
confirmatory of this second alternative finding. If, as thus found, the petitioner had been using
water from Sapang Tuyo to irrigate Lot 436 since she acquired said lot in 1949, as the
Municipality of Balanga had been doing before her, and that such use had lasted continuously
for at least thirty years, it is a fair presumption that she had a right to do so and that the water
she could dispose of was sufficient for the purpose. Indeed it would be a superfluity to require
her to produce a permit from the proper authorities, for even without it the right had already
become vested both under Article 194 of the Spanish Law of Waters and under Article 504 of
the Civil Code, which respectively state:
ART. 194. Any person who has enjoyed the use of public waters for a term of twenty years
without objection on the part of the authorities or of any third person, shall continue in its
enjoyment, even though he may not be able to show that he secured proper permission.
ART. 504. The use of public waters is acquired:
(1) By administrative concession;
(2) By prescription for ten years.
The extent of the rights and obligations of the use shall be that established, in the first case, by
the terms of the concession, and, in the second case, by the manner and form, in which the
waters have been used.
The third requisite of Article 643 of the Civil Code refers to the matter of indemnity to the owner
of the servient estate. As correctly pointed out by the petitioner it would be nigh impossible now
to present actual proof that such indemnity has been paid, considering the number of years
that have elapsed since the easement had first come into existence and the subsequent
changes in ownership of the lots involved. It stands to reason, however, that if the easement
had continued for so long in fact, not only before Lot 433 was registered in 1923 but for thirty
years thereafter, until cut off by the respondents in 1953 the legal requirement in question must
have been complied with.
The other requisite of Article 643 is that "the proposed right of way is the most convenient and
the least onerous to third persons." The Court of Appeals stated that the petitioner has not
established this fact, and that "her own evidence reveals that her lot is abutting Sapang Tuyo
on its southern boundary, where from she can easily and directly draw the water necessary to
irrigate her land." This statement is an oversimplification. Proximity or abutment of a piece of
land to a stream does not necessarily carry with it the conclusion that water may conveniently
be drawn directly therefrom for irrigation. In the first place, the petitioner has pointed out in her
brief, without contradiction by the respondents, that the portion of her land which abuts Sapang
Tuyo is precipice. Secondly, the trial court made an ocular inspection of the premises and
observed that the eastern and northeastern portions of Lot 436 are lower than the
southwestern, western and northwestern (the point where Lot 436 adjoins Lot 433) portions of
the same. Finally, it would appear from the observation made by the same court that the
demolished canal is part of a system of conduits used to irrigate the lands of the petitioner and
the respondents as well as the surrounding estates belonging to other owners, and that this
system of conduits is of a permanent nature. The trial court's description bears repeating:
At the ocular inspection conducted on September 22, 1953, it was found that the eastern and
northeastern portions of Lot No. 436 are lower than the southern, western and northwestern
portions of the same; that about one-fourth (¼) only of the lot is planted to palay and this palay
is yellowish, scarce and could hardly merit attention to produce any substantial quantity of
palay; that this palay is planted in the eastern portion of the same; that the palay planted on
the land of defendant Gutierrez and on the lot east of the land of the plaintiff is luxuriant green
and had all the earmarks of producing a good harvest; that the "pinitak" on the northwestern
portion of the land of the plaintiff is higher than the rest of the land; that on this portion is found
a canal about one and a half (1-½) meters deep which canal runs south and parallel to the
boundary line of Lot 436 owned by the plaintiff and Lot No. 435 and is one and a half (1-½)
meters from this boundary; that along the southern boundary of Lot No. 433 that separates it
from Lot No. 436 is a "minangon" or a dike and water flows continuously from one 'pinitak' to
another of said Lot No. 433 up to a point between points "15" and "14" of said lot as shown on
Exhibit "A" ... that this water passes from one "pinitak" to another through openings made on
the "pilapils" or small dikes that separate the several "pinitaks" on this Lot No. 433; that the
western side of the canal that was demolished is located on the boundary line of Lots Nos. 433
and 434 and this boundary line is higher and some trees are found therein; that the new canal
... is short and the old canal from point "13" to about point "7" of Lot No. 433 on this exhibit is
still in use although it is not clean; that Lot No. 434 owned by Antonio Mendoza is irrigated by
two (2) pipes coming from Lot No. 431 and by a canal that comes from Lot No. 431 and by a
canal that comes from the main irrigation canal located on the boundary line of these two (2)
lots 431 and 434; that this main irrigation canal is the canal that goes through Lot No. 443 ...
which canal ends farther east of Lot 448 ...; that this canal begins from the dam farther west of
these Lots Nos. 431, 434, 433 and 436.
xxx xxx xxx
The boundary line of the two (2) lots Nos. 433 and 434 shows that it is a "minangon", a dike. It
is extraordinarily high. From this situation, it can be concluded that the canal along this
boundary line must be big. To irrigate the southern part of Lot No. 433 would not require a big
and permanent canal if the same was used to irrigate the southern part of Lot No. 433. Canal
marked "W" which is a substitute canal is small and shallow. From the remnants of the old and
demolished canal, it is safe to assume that the canal has been in existence for a long time as
shown by some big trees on the high "minangon." If it were to water only the southern part of
the lot as claimed by defendants, it would have been the same in size as the new canal mark
"W" on Exhibit "A." The construction of the new canal marked 'W' on the exhibit is a feeble
attempt to justify the alleged purpose of the old canal, but this attempt at coverage is laid bare
by the existence of the old canal that crossed Lot No. 433 ... Considering that the southern
portion of said lot is lower than the rest of the same, the Court believes that the openings on
the dike of the old canal would be sufficient to let water flow to the southern portions of this lot.
The western portion of this lot could have been watered from the old canal ("X") or from the
existing canal ("Z") on Exhibit "A". That being so, there is only one explanation why the old
canal ("X") is in existence and that is for the use of Lot No. 436 and other lots farther east of
Lot No. 436.
It is a reasonable conclusion from the foregoing that the demolished canal supplying water to
Lot 436 of the petitioner was merely extension of the system of conduits established long ago,
considering that in view of the topography of the area and the proximity of the said lot to the
main dike in Lot 433 it was more convenient to make the connection therewith than to draw
water directly from Sapang Tuyo. Article 118 of the Spanish Law of Waters allows the creation
of a compulsory easement of aqueduct for the purpose of establishing or extending an irrigation
system, and there is nothing to the contrary in the Civil Code.
In any case the respondents are hardly in a position to avail of the registration of Lot 433 in
1923 without the corresponding registration of the easement on the title as an excuse to
summarily terminate it thirty years thereafter. The original registered owner allowed the
easement to continue in spite of such non-registration: the least that can be said is that he
either recognized its existence as a compulsory servitude on his estate or voluntarily agreed to
its establishment and continuance. And the respondent Guillermo Gutierrez, as the successor-
in-interest to the, said owner by inheritance, is not an innocent third person who could plead
the absence of annotation on the title. Not only was he aware of the existence of the easement
when he inherited the property in 1927, but he likewise allowed it to continue for twenty-six
years after he acquired title. He is bound both by the act of his predecessor and by his own.
WHEREFORE, the decision of the Court of Appeals is set aside, and that of the Court of First
Instance of Bataan affirmed, with costs against the respondents.
Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Fernando, Barredo and Villamor, JJ., concur.
Teehankee, J., took no part.
Castro, J., is on leave.
G.R. Nos. L-33868-76 October 18, 1990
NILO LIZARES, NICOLAS LEDESMA, JAIME CLAPAROLS, CARMITA C. BALCELLS,
EDUARDO CLAPAROLS, EULALIA C. ROSELLO, ENRIQUE YUSAY, DOMINGO
RODRIGUEZ, INC., FIRST FARMERS' MILLING CO., INC., petitioners,
vs.
HON. CESAR A. KINTANAR, Judge of the Court of First Instance of Negros Occidental,
and TALISAY-SILAY MILLING CO., INC., respondents.
Arsenio AL. Acuña for petitioners.
MEDIALDEA, J.:
This is a petition for certiorari with preliminary injunction questioning the orders of respondent
Court of First Instance of Negros Occidental dated June 30, 1970, July 20, 1970, December
10, 1970 and April 21, 1971 as having been issued with grave abuse of discretion.
The pertinent facts, as culled from the pleadings, are as follows:
Private respondent Talisay-Silay Milling Co., Inc. (Central) is the owner and operator of a sugar
mill located in the Municipality of Talisay, Negros Occidental, manufacturing centrifugal sugar
from sugarcanes delivered to the mill by petitioners Nilo Lizares, Nicolas Ledesma, Jaime
Claparols ,Carmita C. Balcells, Eduardo Claparols, Eulalia C. Rogelio, Enrique Yusay,
Domingo Rodriguez, Inc., and First Farmers' Milling Co., Inc. pursuant to Identical milling
contracts executed between the former and the latter. Under the provisions of the milling
contracts, Central was granted, inter alia, an easement of aqueduct on the parcels of land
owned by petitioners for the passage of water from the Imbang River to its sugar mill. For this
purpose, Central constructed concrete water canals traversing the parcels of land of
petitioners. The easement of aqueduct was for a period of fifty (50) years, which began with
1920-21 crop year up to 1969-70 crop year. Prior to the expiration of this period, Central, by
means of separate letters, offered to lease from petitioners the areas occupied by the canals.
However, petitioners refused to entertain the offer of Central.
On June 22, 1970, Central filed its complaints against petitioners Nilo Lizares, Nicolas
Ledesma, Jaime Claparols, Carmita C. Balcells, Eduardo Claparols, Eulalia C. Rogelio and
Enrique Yusay, docketed as Civil Cases Nos. 9438, 9439, 9441, 9442, 9443, 9445 and 9446,
respectively, before respondent Court of First Instance of Negros Occidental. On July 20,1970,
Central filed its complaints against Domingo Rodriguez, Inc. and First Farmers' Milling Co.,
Inc., docketed as Civil Cases Nos. 9472 and 9473, respectively, before the same court. In all
these cases, Central prayed for the establishment of a legal easement of aqueduct on the
parcels of land owned by petitioners (same areas presently occupied by the canals) and for the
issuance of writs of preliminary injunction ex parte to restrain the petitioners and/or their agents,
representatives, assigns, successors-in-interest from removing and/or destroying the canals or
otherwise from obstructing the passage of water from the Imbang River to its mill, through the
canals, during the pendency of the litigation.

On June 30, 1970, respondent court ordered the issuance of the writs of preliminary injunction
with respect to Civil Cases Nos. 9438, 9439, 9441, 9442, 9443, 9445 and 9446, to wit:
ORDER
Verified petition dated June 22, 1970, having been filed in the above-entitled civil cases in
which it is prayed among other things, that a writ of preliminary injunctions (sic) ex-parte (sic)
be issued to refrain the defendants from proceeding with certain acts which are particularly
described therein, and the Court, finding that it is a proper case for injunction, that the
continuance of the acts complained of during the litigation would work injustice to the plaintiff,
and that great or irreparable injury would result to the plaintiff, before the matter can be heard
on notice, hereby orders the immediate issuance of the writ of preliminary injunction prayed for
upon the filing of the plaintiff of a bond in the amount of P2,000.00 each case.
SO ORDERED. (P. 137, Rollo)
The writs of preliminary injunction were issued accordingly on said date (pp. 140-146, Rollo).
On July 20, 1970, respondent court ordered the issuance of the writs of pre injunction as
regards Civil Cases Nos. 9472 and 9473, to wit:
ORDER
A verified petition dated July 20, 1970, having been filed in the above-entitled civil cases in
which it is prayed among other things, that a writ of preliminary injunctions (sic) ex-parte (sic)
be issued to refrain the defendant from proceeding with certain acts which am particularly
described therein, and the Court, finding that it is a proper case for injunction, that the
continuance of the acts complained of during the litigation would work injustice to the plaintiff,
and that great or irreparable injury would result to the plaintiff before the matter can be heard
on notice, hereby orders the immediate issuance of the writ of preliminary injunction prayed for
upon the filing of the plaintiff of a bond in the amount of P2,000.00.
SO ORDERED. (pp. 138-139, Rollo)
The writs of preliminary injunction were issued accordingly on said date (pp. 147-148, Rollo).
On July 27, 1970, petitioners filed a motion to dissolve the writs of preliminary injunction which
was opposed by Central in a motion dated August 21, 1970. On December 10, 1970,
respondent court denied the motion to dissolve the writs of preliminary injunction, to wit:
ORDER
For the resolution of the Court are the Motion to Dissolve Injunction dated July 27, 1970, filed
by the defendants and the Opposition to Motion to Dissolve Injunction dated August 21, 1970,
filed by the plaintiff. After carefully considering the lengthy, oral and written arguments of the
parties, pro and con the Court finds no sufficient ground to dissolve the writs of preliminary
injunction issued in the above-entitled cases. The position of the defendants is that the
injunctions were issued on the premature assumption that, even after the expiration of the
plaintiffs contractual easement of aqueduct, it was entitled to a legal or compulsory easement
of aqueduct on the same location or route, even without averment of the existence of the
statutory requisites for the establishment of such legal easement, citing the cases of Bacolod-
Murcia Millong Co., Inc. et al. vs. Capitol Subdivision, Inc., et al, 64 O.G. 1965; and Angela
Estate, Inc., et al vs. Court of First Instance of Negros Occidental, et al. G.R. No. L-27084, July
31, 1968; while the plaintiff maintains the following positions: (1) that the contractual easement
of aqueduct has not expired as yet when the complaint was filed; (2) that the complaint has
sufficiently and with clarity averred that the statutory requisites for easement of aqueduct exist,
hence, the propriety and legality of the issuance of the writ of preliminary injunction; and (3)
that the decisions of the Supreme Court in the Bacolod-Murcia Co., Inc., cases aforesaid are
not applicable to the issue at bar. The Court is inclined to sustain the position taken by the
plaintiff.
WHEREFORE, the Motion to Dissolve Injunction filed by the defendants in the above-entitled
cases is hereby denied.
SO ORDERED. (pp. 466-467, Rollo)
On December 19, 1970, petitioners filed a motion for reconsideration thereof which was,
however, denied on April 21, 1971 for lack of merit (p. 486, Rollo). Hence, the present petition.
On January 27, 1988, considering the length of time that these cases have been pending with
this Court, and to determine whether supervening events have rendered these cases moot and
academic, We resolved to require the parties to move in the premises. On February 29, 1988
(p. 600, Rollo) and June 23, 1988 (p. 603, Rollo), petitioners manifested that no supervening
events have rendered these cases moot and academic.
The issue is whether or not respondent court committed grave abuse of discretion in having
issued the orders dated June 30, 1970 and July 20, 1970 directing the issuance of the writs of
preliminary injunction, the order dated December 10, 1970, denying the motion to dissolve the
writs of preliminary injunction and the order dated April 21, 1971 denying the motion for
reconsideration.
The petitioners have failed to show grave abuse of discretion on the part of respondent court
in issuing the questioned orders.
Petitioners allege that the cases of Bacolod-Murcia Milling Co., Inc., et al. v. Capitol
Subdivision, Inc., et al. (G.R. No. L25887, July 26, 1966, 17 SCRA 731), Angela Estate, Inc.,
et al, v. CFI of Negros Occidental, et al. (G.R. No. L-27084, July 31, 1968, 24 SCRA 500) and
Locsin, et al. v. Climaco, etc., et al. (G.R. No. L-27319, January 31, 1969, 26 SCRA 816)
constitute the leading jurisprudence in the issuance of the writs of preliminary injunction in
cases of complaints praying for the declaration of legal easement. In answer thereto, Central
asserts that the aforementioned decisions are inapplicable in these, cases because they refer
to legal easement of right of way.

The cases invoked by petitioners may be applied to this controversy only insofar as the general
principles on the issuance of a writ of preliminary injunction reiterated therein are concerned,
but not with regard to the other principles enunciated therein because they deal with legal
easement of right of way whereas Our concern here is legal easement of aqueduct.
A preliminary injunction may be granted at any time after the commencement of the action and
before judgment, when it is established that the plaintiff is entitled to the relief demanded, and
the whole or part of such relief consists in restraining the commission or continuance of the
acts complained of, or in the performance of an act or acts, either for a limited period or
perpetually; that the commission or continuance of some act complained of during the litigation
or the non-performance thereof would probably work injustice to the plaintiff; or that the
defendant is doing, threatens, or is about to do, or is procuring or suffering to be done, some
act probably in violation of the plaintiff s rights respecting the subject of the action, and tending
to render the judgment ineffectual. 1
The purpose of this provisional remedy if to preserve the status quo 2 of the things subject of
the action and/or the relation between the parties, in order to protect the right of the plaintiff
respecting the subject of the action during the pendency of the suit. Because, otherwise or if
no preliminary prohibitory injunction were issued, the defendant may, before final judgment, do
or continue the doing of the act which the plaintiff asks the court to restrain, and thus make
ineffectual the final judgment rendered afterwards granting the relief sought by the plaintiff.
In praying for the issuance of the writs of preliminary injunction, Central averred the following
in its complaints (pp. 57-136, Rollo): that should the defendants (petitioners herein) remove or
demolish the concrete water canals or otherwise interfere with the easement of aqueduct which
has been availed of by it for the last fifty (50) years through the use of said canals by obstructing
impeding or preventing the passage of water thereon, irreparable damage would be caused to
it, as they all together have a yearly quota to fill including the export quota which constitutes
part of the commitment of the Republic of the Philippines to the United States; that during the
crop year 1969-70, Central manufactured 871,797.50 piculs of centrifugal sugar of which
manufactured sugar sixty (60%) percent thereof or 523,078,500.00 piculs more or less are
export or "A" sugar shipped to the United States to fill part of the aforesaid yearly quota, which
at the price of P40.00 a picul on the average, amount to P208,231,400.00, or $34,871,900.00
thereby availing to the Government of the Republic of the Philippines much needed dollars to
bolster the depleted foreign exchange reserve of the country which at the present time is
dangerously low; that in fact no damage has resulted or will result to the defendants (petitioners
herein) from the continued use and exercise of the easement of aqueduct while on the other
hand, irreparable damage will be caused to Central, the other planters affected and even to the
sugar industry and the national economy as a whole, unless it be allowed the continuous use
of the canals and its continued use thereof be legally recognized as a legal easement of
aqueduct upon payment to defendants (petitioners herein) of a reasonable compensation to be
fixed by the court, the said legal easement to exist for a period coterminous with the existence
and operation of the mill; and that unless the defendants (petitioners herein) are restrained
from committing the act of either impeding or in any way obstructing the passage of water from
the Imbang River through the canals presently existing on their properties by destroying said
canals or otherwise, which defendants (petitioners herein) are threatening to do, Central's mill
operation win be completely paralyzed resulting in great and irreparable loss and damage to it
and its planters.
We agree with respondent court that Central has sufficiently established the necessity of
issuing writs of preliminary injunction against petitioners.
Petitioners contend next that assuming crop year 1969-70 ended only on August 31, 1970, by
the time respondent court issued its December 10, 1970 and April 21, 1971 orders, Central's
contractual right to the easement of aqueduct has already expired. On the other hand, Central
avers that since the writs of preliminary injunction were issued before the expiration of the
contractual easement of aqueduct, they were issued not only to protect an existing right then,
but even after August 31, 1970, to preserve the status quo between the parties, pending judicial
determination as to whether or not it (Central) could convert its existing contractual easement
of aqueduct into a legal easement under Arts. 642-643 of the New Civil Code.
It frequently happens that, pending suits for injunctive relief, changes take place in the
conditions which give rise to the litigation, and the question is thus presented whether the suit
should stand or fall upon the facts as they existed at the time it was brought, so as to exclude
all consideration of subsequent changes or abandonment of the acts complained of. Generally
speaking, it is the condition of things at the time of the hearing of the suit which is material, and
which furnishes the basis for relief. The court is not only authorized, but it is its duty to determine
not merely whether the plaintiff was entitled to an injunction at the time he began the suit but
whether the facts as they appear at the time of the hearing warrant such relief, and it may
refuse to grant an injunction where, since the commencement of the suit, conditions have so
changed as to render an injunction useless and of no effect if granted. Injunctive relief will
generally be refused where, before the final hearing, the plaintiff loses his interest in or title to
the subject matter sought to be protected, or where the act sought to be restrained has been
made lawful by statute or ordinance. This does not mean, however, that the court should deny
injunctive relief in every case of material changes in conditions or abandonment of the acts
complained of, for circumstances may still exist which, in the face of such a situation, would
justify the issuance of injunction as a matter of sound judicial discretion (28 Am. Jur. 201, cited
in The Revised Rules of Court in the Philippines by Vicente J. Francisco, 1985 Edition, p. 178).
In these cases, the writs of preliminary injunction were issued (as correctly averred by Central)
not only to protect the existing easement of aqueduct in its favor, but even after the end of
1969-70 crop year, to preserve the status quo between the parties, pending judicial
determination as to whether or not Central can convert its contractual easement of aqueduct
into a legal easement of aqueduct. If the writs of preliminary injunction were to be dissolved,
the probability of the canals' destruction or obstruction by petitioners would be great,
considering that they refused the offer made by Central to lease the areas covered by the
canals. In the event that respondent court grants Central a legal easement of aqueduct, this
judgment might be rendered ineffectual by the destruction or obstruction of the canals.
It is unnecessary to discuss the other issues raised by petitioners inasmuch as they dwell on
the merits of the case pending before respondent court.

ACCORDINGLY, the petition is hereby DISMISSED and the orders of the Court of First
Instance of Negros Occidental dated June 30, 1970, July 20, 1970, December 10, 1970 and
April 21, 1971 are AFFIRMED.
SO ORDERED.
Narvasa (Chairman), Cruz, Gancayco and Griño-Aquino, JJ., concur.
G.R. No. 175510 July 28, 2008
SPOUSES VICTOR VALDEZ AND JOCELYN VALDEZ, represented by their Attorney-In-
Fact, VIRGILIO VALDEZ, Petitioners,
vs.
SPOUSES FRANCISCO TABISULA AND CARIDAD TABISULA, Respondents.
DECISION
CARPIO MORALES, J.:
Petitioner-spouses Victor and Jocelyn Valdez purchased via a January 11, 1993 Deed of
Absolute Sale1 (the deed) from respondent-spouses Francisco Tabisula and Caridad Tabisula
a 200 square meter (sq.m.) portion (the subject property) of a 380 sq. m. parcel of land located
in San Fernando, La Union, which 380 sq.m. parcel of land is more particularly described in
the deed as follows:
A parcel of land classified as residential lot, bounded on the North by Lot No. 25569, on the
East, by Lot No. 247, 251, on the South, by a Creek and on the West, by Lot No. 223-A,
declared under Tax Decl. No. 52820, with an area of 380 square meters, more or less, and
assessed at ₱ 17100.00 for the current year. It is not registered under Act 496 nor under the
Spanish Mortgage Law. (Emphasis and underscoring supplied)
The pertinent portions of the deed read:
xxxx
That for and in consideration of the sum of SEVENTY THOUSAND (P70,000.00) PESOS,
Philippine Currencyp [sic] paid to us at our entire satisfaction by spouses VICTOR and
JOECELYN [sic] VALDEZ, both of legal age, Filipinos and residents of 148 P. Burgos St., San
Fernando, La Union, receipt of which is hereby acknowledged, do hereby SELL, CONVEY and
TRANSFER by way of absolute sale unto the said spouses Victor and Joecelyn Valdez, their
heirs and assigns, the TWO HUNDRED (200) SQUARE METERS, EASTERN PORTION of
the parcel of land above-described, free from all liens and encumbrances.
xxxx
That now and hereinafter, said VENDEE-SPOUSES VICTOR and JOECELYN [sic] VALDEZ
shall be the absolute owners of the said 200 sq. meters, eastern portion and that we shall
warrant and forever defend their ownership of the same against the claims of all persons
whomsoever; they shall be provided a 2 1/2 meters [sic] wide road right-of-way on the western
side of their lot but which is not included in this sale.
x x x.x (Emphasis and underscoring supplied)
Respondents subsequently built a concrete wall on the western side of the subject property.2
Believing that that side is the intended road right of way mentioned in the deed, petitioners,
through their representative, reported the matter to the barangay for mediation and conciliation.
Respondents failed to attend the conferences scheduled by the barangay, however, drawing
petitioners to file in April 1999 or more than six years after the execution of the deed a
Complaint for Specific Performance with Damages3 against respondents before the Regional
Trial Court (RTC) of San Fernando City, La Union.
In their complaint, petitioners alleged that they purchased the subject property on the strength
of respondents’ assurance of providing them a road right of way. They thus prayed that
respondents be ordered to provide the subject property with a 2½-meter wide easement and
to remove the concrete wall blocking the same.4
Respondents, in their Answer with Compulsory Counterclaim (for damages and attorney’s
fees),5 averred that the 2 ½-meter easement should be taken from the western portion of the
subject property and not from theirs;6 and petitioners and their family are also the owners of
two properties adjoining the subject property, which adjoining properties have access to two
public roads or highways – the bigger one which adjoins P. Burgos St. on the north, and the
smaller one which abuts an existing barangay road on the north.7
Respondents further averred that they could not have agreed to providing petitioners an
easement "on the western side of their lot" as there exists a two-storey concrete house on their
lot where the supposed easement is to be located, which was erected long before the subject
property was sold to petitioners.8 In support of this claim, respondents submitted a February
20, 2003 letter from the City Engineer’s Office.9
Branch 26 of the RTC of San Fernando dismissed petitioners’ complaint and granted
respondents’ Counterclaim by Decision10 of March 18, 2005, the dispositive portion of which
reads:
WHEREFORE, and in view of all the foregoing, judgment is hereby rendered finding the
defendants as against the plaintiffs and hereby orders the Complaint dismissed for being
unmeritorious and plaintiffs are hereby ordered to pay the defendants, the following:
1) P100,000.00 as moral damages;
2) P50,000.00 as exemplary damages;
3) P50,000.00 as attorney’s fees;
4) P30,000.00 as expenses of litigation; and
5) To pay the costs.
SO ORDERED.11 (Underscoring supplied)
On appeal by petitioners, the Court of Appeals, by Decision of May 29, 2006,12 affirmed that
of the trial court, it holding that the deed only conveyed ownership of the subject property to
petitioners, and that the reference therein to an easement in favor of petitioners is not a definite
grant-basis of a voluntary easement of right of way.13
The appellate court went on to hold that petitioners are neither entitled to a legal or compulsory
easement of right of way as they failed to present circumstances justifying their entitlement to
it under Article 649 of the Civil Code.14
Petitioners’ motion for reconsideration15 having been denied by the Court of Appeals by
Resolution of November 15, 2006, they filed the present petition for review on certiorari faulting
the trial [sic] court
I. . . . IN RULING THAT THE RIGHT OF WAY IS NOT PART OF THE ABSOLUTE DEED OF
SALE DATED JANUARY 11, 1993;
II. . . . IN RULING THAT THE PROVISION OF THE ABSOLUTE DEED OF SALE GRANTING
A RIGHT OF WAY IS VAGUE AND OBSCURE;
III. . . . IN AWARDING MORAL AND EXEMPLARY DAMAGES TO THE RESPONDENTS.16
(Underscoring supplied)
An easement or servitude is "a real right constituted on another’s property, corporeal and
immovable, by virtue of which the owner of the same has to abstain from doing or to allow
somebody else to do something on his property for the benefit of another thing or person."17
The statutory basis of this right is Article 613 of the Civil Code which reads:
Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the
benefit of another immovable belonging to a different owner.
The immovable in favor of which the easement is established is called the dominant estate;
that which is subject thereto, the servient estate.
There are two kinds of easements according to source – by law or by the will of the owners. So
Article 619 of the Civil Code provides:
Art. 619. Easements are established either by law or by the will of the owners. The former are
called legal and the latter voluntary easements.
From the allegations in petitioners’ complaint, it is clear that what they seek to enforce is an
alleged grant in the deed by respondents of an easement reading: "they shall be provided a 2
½ meters wide road right-of-way on the western side of their lot but which is not included in this
sale."
Article 1358 of the Civil Code provides that any transaction involving the sale or disposition of
real property must be in writing.18 The stipulation harped upon by petitioners that they "shall
be provided a 2 ½ meters wide road right-of-way on the western side of their lot but which is
not included in this sale" is not a disposition of real property. The proviso that the intended
grant of right of way is "not included in this sale" could only mean that the parties would have
to enter into a separate and distinct agreement for the purpose.19 The use of the word "shall,"
which is imperative or mandatory in its ordinary signification, should be construed as merely
permissive where, as in the case at bar, no public benefit or private right requires it to be given
an imperative meaning.20
Besides, a document stipulating a voluntary easement must be recorded in the Registry of
Property in order not to prejudice third parties. So Articles 708 and 709 of the Civil Code call
for, viz:
Art. 708. The Registry of Property has for its object the inscription or annotation of acts and
contracts relating to the ownership and other rights over immovable property.
Art. 709. The titles of ownership, or of other rights over immovable property, which are not duly
inscribed or annotated in the Registry of Property shall not prejudice third persons.
Petitioners are neither entitled to a legal or compulsory easement of right of way. For to be
entitled to such kind of easement, the preconditions under Articles 649 and 650 of the Civil
Code must be established, viz:
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.
xxxx
This easement is not compulsory if the isolation of the immovable is due to the proprietor’s own
acts. (Underscoring supplied)
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. (Underscoring supplied)
Thus, to be conferred a legal easement of right of way under Article 649, the following requisites
must be complied with: (1) the property is surrounded by other immovables and has no
adequate outlet to a public highway; (2) proper indemnity must be paid; (3) the isolation is not
the result of the owner of the dominant estate’s own acts; (4) the right of way claimed is at the
point least prejudicial to the servient estate; and (5) to the extent consistent with the foregoing
rule, the distance from the dominant estate to a public highway may be the shortest.21 The
onus of proving the existence of these prerequisites lies on the owner of the dominant estate,22
herein petitioners.
As found, however, by the trial court, which is supported by the Sketch23 (Exhibit "B"; Exhibit
"1") of the location of the lots of the parties and those adjoining them, a common evidence of
the parties, petitioners and their family are also the owners of two properties adjoining the
subject property which have access to two public roads or highways.24
Since petitioners then have more than adequate passage to two public roads, they have no
right to demand the grant by respondents of an easement on the "western side of [respondents’]
lot."
It may not be amiss to note at this juncture that at the time the deed was executed in 1993, the
barangay road-Exhibit "1-G," by which petitioners could access Burgos Street-Exhibit "1-F,"
was not yet in existence; and that the Interior Street-Exhibit "1-H," which petitioners via this
case seek access to with a right of way, was still a creek,25 as reflected in the earlier-quoted
particular description of respondents’ parcel of land from which the subject property originally
formed part.
Respecting the grant of damages in favor of respondents by the trial court which was affirmed
by the appellate court, the Court finds the same baseless.1avvphi1
To merit an award of moral damages, there must be proof of moral suffering, mental anguish,
fright and the like. It is not enough that one suffers sleepless nights, mental anguish, serious
anxiety as a result of the actuation of the other party.26 Invariably, such actuation must be
shown by clear and convincing evidence27 to have been willfully done in bad faith or with ill-
motive.
In respondents’ case, they predicated their Counterclaim for damages on general allegations
of sickness, humiliation and embarrassment, without establishing bad faith, fraud or ill-motive
on petitioners’ part.28
More importantly, respondents are precluded from filing any counterclaim in light of Article 199
of Rule XXVI of the Rules and Regulations Implementing the Local Government Code of 1991
reading:
xxxx
ARTICLE 199. Penalty for Refusal or Failure of Any Party or Witness to Appear before the
Lupon or Pangkat. — Refusal or willful failure of any party or witness to appear before the lupon
or pangkat in compliance with summons issued pursuant to this Rule may be punished by the
city or municipal court as for indirect contempt of court upon application filed therewith by the
lupon chairman, the pangkat chairman, or by any of the contending parties. Such refusal or
willful failure to appear shall be reflected in the records of the lupon secretary or in the minutes
of the pangkat secretary and shall bar the complainant who fails to appear, from seeking judicial
recourse for the same course of action, and the respondent who refuses to appear, from filing
any counterclaim arising out of, or necessarily connected with the complaint.
x x x x (Emphasis and underscoring supplied)
While respondent Caridad Tabisula claimed that she always appeared, when summoned,
before the barangay lupon,29 the following Certificate to File Action30 belies the claim.
xxxx
This is to certify that respondents failed to appear for (2) Mediation Proceeding before our
Punong Barangay thus the corresponding complaint may now be filed in court.
Issued this 24th day of November 1998 at the Multi Purpose Hall, Barangay 1 City of San
Fernando (LU).
x x x x (Underscoring supplied)
The award for moral damages being thus baseless, that for exemplary damages must too be
baseless.
As for the award of attorney's fees and expenses of litigation, respondents have not shown
their entitlement thereto in accordance with Article 2208 of the Civil Code.
WHEREFORE, the May 29, 2006 Decision and November 15, 2006 Resolution of the Court of
Appeals are MODIFIED in that the grant of the Counterclaim of respondents, Spouses
Francisco Tabisula and Caridad Tabisula, is reversed and set aside. In all other respects, the
challenged decision is AFFIRMED.
Costs against petitioners.
SO ORDERED.
G.R. No. 151797 October 11, 2007
SPOUSES MANUEL MEJORADA AND ROSALINDA P. MEJORADA, petitioners,
vs.
GLORIFICACION VERTUDAZO, SOL VERTUDAZO, SPS. JIMMY GALVIZO and GLOSITA
T. GALVIZO, SPS. FERMIN CABRERA and ELLEN CABRERA, SPS. FELIXTO ARIATE and
RENA ARIATE, and SPS. RAUL ARLALEJO and ARCILA ARLALEJO, respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us is a Petition for Review on Certiorari1 assailing the Decision2 dated December 4,
2001 of the Court of Appeals in CA-G.R. CV No. 62900, entitled "Glorificacion Vertudazo et al.
v. Spouses Manuel and Rosalinda Mejorada."
The undisputed facts are:
Sometime in 1981, Glorificacion and Sol Vertudazo and their co-respondents established their
permanent residence on a 300-square meter lot located at Telaje, Tandag, Surigao del Sur.
Their property is landlocked being bordered on all sides by different lots. As an access route
going to Quiñones Street and the public highway, they utilized a proposed undeveloped
barangay road on the south side of their property owned by Rosario Quiñones.
In 1988, spouses Manuel and Rosalinda Mejorada, petitioners, bought Rosario’s 646-square
meter lot adjacent to respondents’ property. Included therein is an area measuring 55.5 square
meters which serves as an adequate outlet to Quiñones Street, now the subject of the present
controversy. For several years, respondents and the general public have been using that area
as a passageway to and from Quiñones Street.
On July 2, 1997, petitioners closed the passageway by building a new garage for their service
jeep. Hence, respondents brought the matter to the barangay concerned but no settlement was
reached by the parties. Respondents then filed a complaint3 with the Regional Trial Court,
Branch 27, Tandag, Surigao del Sur praying for a grant of easement of right of way over
petitioners’ property with an application for writ of preliminary mandatory injunction.
In their answer, petitioners claimed that there is an alternate route which respondents have
been using although it was long, circuitous and muddy; that the isolation of respondents’
property was due to their construction of a fence fronting the house of the petitioners; that this
made it difficult for petitioners to maneuver their service jeep, hence, they were constrained to
construct a new garage; that respondents never offered to pay compensation for the right of
way; and that they failed to show that the easement is at the point least prejudicial to the
servient estate.
During the hearing, the trial court ordered that the passageway be opened during the day and
closed in the evening during the pendency of the case. Petitioners agreed to open it everyday
from five o’clock in the morning until nine o’clock in the evening and even volunteered their
service jeep to be used in case of any emergency during the rest of the night. Respondents’
application for injunction was then declared moot and the case was archived to allow the parties
to settle the matter amicably.
Nevertheless, petitioners did not abide with their commitment. Thus, on March 5, 1998,
respondents filed with the trial court joint motions to cite petitioners in contempt of court and to
revive their application for preliminary mandatory injunction. On June 8, 1998, the trial court
denied the motion for contempt but granted an injunctive relief, ordering petitioners "to keep
open at all times of the day and night for respondents to pass through in going to Quiñones
Street and in returning to their respective houses, unhampered and unvexed, during the
pendency and until the resolution of the case." Respondents were ordered to post a bond of
P5,000.00. On June 16, 1998, the trial court issued a writ of preliminary mandatory injunction.
After the trial on the merits, or on December 7, 1998, the trial court rendered a Decision in favor
of respondents, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered:
1. Decreeing the establishment of a compulsory easement of right of way in favor of the
plaintiffs over the passageway in question, namely, the 55.5 square meter lot located at Telaje,
Tandag, Surigao del Sur, covered by Tax Declaration No. 02030 in the name of defendant
Rosalinda P. Mejorada, and ordering the defendants to open and make available the
passageway to the plaintiffs and the general public as access road to Quiñones Street;
2. Ordering the plaintiffs, jointly and severally, to pay the defendants the value of the 55.5
square meter passageway, the exact amount to be determined by a committee of three
assessors, with the Acting Clerk of Court, this Court, or his duly authorized deputy sheriff as
Chairman, and with one member to be proposed by the plaintiffs, and the other member, by
the defendants, the committee to finish the assessment and submit to this Court its report within
fifteen (15) days from their assumption to duty as such assessors; and
3. Declaring the preliminary mandatory injunction heretofore issued permanent.
No pronouncement as to cost.
IT IS SO ORDERED."
On appeal, the Court of Appeals affirmed the Decision of the trial court.
Hence, the present recourse.
The issue for our resolution is whether respondents are entitled to the easement of right of way
on the property owned by petitioners.
We find for respondents.

Easement has been defined as an encumbrance imposed upon an immovable for the benefit
of another immovable belonging to a different owner. The immovable in favor of which the
easement is established is called the dominant estate; that which is subject thereto, the servient
estate.4 In this case, the dominant estate is respondents’ property, while the servient estate
belongs to petitioners.
Articles 649 and 650 of the Civil Code provide:
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. xxx
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.
A legal or compulsory easement is that which is constituted by law for public use or for private
interest. Pursuant to the above provisions, the owner of an estate may claim a legal or
compulsory right of way only after he has established the existence of these four (4) requisites:
(a) the estate is surrounded by other immovables and is without adequate outlet to a public
highway; (b) after payment of the proper indemnity; (c) the isolation was not due to the
proprietor’s own acts; and (d) the right of way claimed is at a point least prejudicial to the
servient estate.5
Here, these four requisites have been satisfied.
First, as found by the Court of Appeals, there is no other road which respondents could use
leading to Quiñones Street except the passageway on petitioners’ property.
Second, respondents have offered to pay petitioners proper indemnity for the easement of way.
Third, the Court of Appeals likewise found that the isolation of respondents’ property was not
due to their acts.
Fourth, the easement is at the point least prejudicial to petitioners’ property. In fact, the area of
the easement which is 55.5 square meters is located at the corner of petitioners’ landholding,
hence, does not cause them inconvenience in anyway.
Verily, we see no reason to reverse the Decision of the Court of Appeals affirming that of the
trial court.
WHEREFORE, we DENY the petition. The assailed Decision of the Court of Appeals in CA-
G.R. CV No. 62900 is AFFIRMED. Costs against petitioners.
SO ORDERED.
Puno, C.J., Chairperson, Corona, Azcuna, Garcia, JJ., concur.
G.R. No. 149023 September 27, 2007
LEO WINSTON BRIN LEE, Petitioner,
vs.
SPOUSES AMADEO and ADELAIDA CARREON, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Challenged in the instant Petition for Review on Certiorari1 are the Decision2 of the Court of
Appeals dated March 12, 2001 and its Resolution dated June 21, 2001 in CA-G.R. CV No.
60511.
Spouses Amadeo and Adelaida Carreon, respondents, are the owners of a house and Lots
Nos. 8-B and 8-C located in Cebu City covered by Transfer Certificates of Title (TCT) Nos.
61049 and 56745, respectively, of the Registry of Deeds, same city.
On the other hand, Anita Linda Rodriguez is the owner of Lot No. 6213-A-2 covered by TCT
No. 93402. It is situated within the vicinity of respondent spouses’ lots.
As there is no existing way from their property to the nearest road, respondents filed with the
Regional Trial Court (RTC), Branch 22, Cebu City a complaint for easement of right of way
against Rodriguez, docketed as Civil Case No. CEB-7426. During the pre-trial, the RTC found
that there is another servient estate, owned by Mr. and Ms. Anselmo Jardin which could be
used by respondents as a right of way. Respondents then filed a Motion for Leave to Admit
Amended Complaint to include spouses Jardin as co-defendants, the latter being owners of
Lots Nos. 6213-A-3, 6213-A-4 and 8-A located on the eastern side of respondents’ property.
On June 9, 1989, the RTC issued an Order admitting the Amended Complaint.
However, the lots of spouses Jardin were sold pendente lite to Leo Winston Brin Lee, petitioner.
As a result, respondents filed a Motion for Leave to Admit Second Amended Complaint
impleading petitioner as additional defendant. On September 10, 1993, the RTC granted the
motion.
After trial, the RTC rendered Judgment in favor of respondents and against petitioner, the
dispositive portion of which reads:
FOR ALL THE FOREGOING, judgment is hereby rendered for the plaintiffs as follows:
1. Ordering defendant Mr. Leo Winston Brin Lee to grant plaintiffs a right of way on the northern
portion of his properties as indicated in Exh.9-Lee measuring "one-meter wide and thirteen
meters long;
2. Ordering Mr. Leo Winston Brin Lee to demolish the fence/structure to the extent obstructing
the right of way hereinabove constituted;
3. Ordering plaintiffs to solidarily pay defendant Lee the amount of THREE THOUSAND
PESOS (₱3,000.00) per sq. m. or a total of THIRTY NINE THOUSAND PESOS (₱39,000.00)
as payment of indemnity, on or before the complete establishment thereof;
4. Further ordering plaintiffs to solidarily pay defendant Lee the amount of TWENTY FIVE
THOUSAND PESOS (₱25,000.00) as the value of the wall/fence to be demolished likewise on
or before the complete establishment of the easement; and
5. All counterclaims are hereby dismissed for lack of merit.
NO PRONOUNCEMENT AS TO COSTS.
SO ORDERED.
On appeal by petitioner, the Court of Appeals, in its assailed Decision, affirmed the RTC
Judgment, thus:
WHEREFORE, premises considered, the present appeal is hereby DISMISSED, for lack of
merit. The appealed Decision dated June 24, 1997 of the Regional Trial Court of Cebu City,
Branch 22 in Civil Case No. CEB-7426 is hereby AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
Petitioner filed a motion for reconsideration but it was denied by the appellate court in its
Resolution of June 21, 2001.
Hence, the present petition.
Petitioner contends that respondents have an existing right of way; and that had the trial court
considered certain testimonial evidence and respondents’ admissions, its conclusion and that
of the Court of Appeals would have been different.
Respondents, on the other hand, pray that the petition be denied for lack of merit.
The issue for our resolution is whether the Court of Appeals erred in ruling that respondents
are entitled to an easement of right of way on petitioner’s property. This issue is both factual
and legal in nature.
The conferment of a legal easement of right of way is governed by Articles 649 and 650 of the
Civil Code reproduced as follows:
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.
To be entitled to an easement of right of way, the following requisites should be met:
1. the dominant estate is surrounded by other immovables and has no adequate outlet to a
public highway (Art. 649, par. 1);
2. there is payment of proper indemnity (Art. 649, par. 1);
3. the isolation is not due to the acts of the proprietor of the dominant estate (Art. 649, last par.);
and
4. 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).3
All the above requisites are present here.
As regards the first requisite, the parties agreed that respondents’ property is surrounded by
the estates of other persons, including that of petitioner. The only dispute is whether
respondents have an adequate outlet to the nearest road. The Court of Appeals held:
x x x What defendant-appellant insists is that plaintiffs-appellees can use another outlet leading
to the nearest road by traversing several small lots and thereafter use the northern portion of
his property which he is willing to be the subject of a right of way. The trial court found that
plaintiffs-appellees managed to reach the nearest road through any passage available, passing
through several lots as they were unobstructed by any structure of fence. However, as correctly
ruled by the court a quo, this is not the adequate outlet referred to by law.1âwphi1 Plaintiffs-
appellees have every right in accordance with law to formally demand for an adequate outlet
sufficient for their needs. Moreover, the alternative route referred to by defendant-appellant
appears to be merely a proposed outlet, not yet in existence. x x x
The second requisite is that payment of indemnity has been complied with. Respondents have
consistently maintained that they are "willing to pay the area affected at a reasonable price that
may be fixed by the Court."4
Anent the third requisite, records show that the isolation of respondents’ property is not due to
their fault.1âwphi1 Actually, it is surrounded by estates of other persons, leaving respondents
no adequate ingress or egress to a public highway.
Going now to the fourth requisite that the right of way claimed is at the point "least prejudicial"
and "shortest distance" to the servient estate, the Court of Appeals held: "We find the same to
be present in the case at bar." Moreover, it should be emphasized that what respondent
spouses asked for was merely a one (1) meter wide pathway. The trial court found that this
easement will only affect a small portion of petitioner’s lot which has a total area of 249 square
meters.5 Only his fence will be affected, the damage of which respondent spouses are willing
to pay.1âwphi1
Verily, we find no cogent reason to disturb the Decision of the Court of Appeals affirming the
Judgment of the trial court.
WHEREFORE, we DENY the petition. The challenged Decision and Resolution of the Court of
Appeals in CA-G.R. CV No. 60511 are AFFIRMED. Costs against petitioner.
SO ORDERED.
G.R. No. 130845 November 27, 2000
BRYAN U. VILLANUEVA, petitioner,
vs.
HON. TIRSO D.C. VELASCO in his capacity as Presiding Judge of the Regional Trial
Court of Quezon City, Branch 88, JULIO N. SEBASTIAN and SHIRLEY LORILLA,
respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari assails (1) the decision1 dated December 27, 1996 of the Court of
Appeals in CA-G.R. SP No. 39166, dismissing petitioner’s petition for review under Rule 65
with prayer for the issuance of a cease and desist order and/or temporary restraining order,
and (2) the resolution2 dated August 14, 1997 denying the subsequent motion for
reconsideration.
Petitioner Bryan Villanueva is the registered owner of the parcel of land covered by Transfer
Certificate of Title No. 127862 of the Register of Deeds of Quezon City. He bought it from
Pacific Banking Corporation, the mortgagee of said property. The bank had acquired it from
the spouses Maximo and Justina Gabriel at a public auction on March 19, 1983. When
petitioner bought the parcel of land there was a small house on its southeastern portion. It
occupied one meter of the two-meter wide easement of right of way the Gabriel spouses
granted to the Espinolas, predecessors-in-interest of private respondents, in a Contract of
Easement of Right of Way. The pertinent portion of the contract dated November 28, 1979,
states:
. . . in order to have an access to and from their aforementioned land where their houses are
constructed and to have an outlet to Tandang Sora Ave. which is the nearest public road and
the least burdensome to the servient estate and to third persons, it would be necessary for
them to pass through spouses MAXIMO GABRIEL and JUSTINA CAPUNO’s land and for this
purpose, a path or passageway of not less than two (2) meters wide of said spouses’ property
is necessary for the use of ROMEO, RODOLFO, NENITA and AURORA ESPINOLA and for
all their needs in entering their property.
xxx
WHEREFORE, in view of the fact that the property of the ESPINOLA had been bought by them
from MAXIMO CAPUNO, father of MAXIMO GABRIEL, spouses MAXIMO GABRIEL and
JUSTINA CAPUNO hereby agree and permit RODOLFO, ROMEO, NENITA and AURORA
ESPINOLA and their families to have a permanent easement of right of way over the
aforementioned property of said spouses limited to not more than two meters wide, throughout
the whole length of the southeast side of said property and as specifically indicated in the
attached plan which is made an integral part of this Contract as Annex "A";
This Agreement shall be binding between the parties and upon their heirs, successors, assigns,
without prejudice in cases of sale of subject property that will warrant the circumstances.3
Unknown to petitioner, even before he bought the land, the Gabriels had constructed the
aforementioned small house that encroached upon the two-meter easement. Petitioner was
also unaware that private respondents, Julio Sebastian and Shirley Lorilla, had filed on May 8,
1991, Civil Case No. Q-91-8703, for easement, damages and with prayer for a writ of
preliminary injunction and/or restraining order against the spouses Gabriel.4 As successors-in-
interest, Sebastian and Lorilla wanted to enforce the contract of easement.
On May 15, 1991, the trial court issued a temporary restraining order. On August 13, 1991, it
issued a writ of preliminary mandatory injunction ordering the Gabriels to provide the right of
way and to demolish the small house encroaching on the easement. On August 15, 1991, the
Gabriels filed a motion for reconsideration which was also denied. Thus, they filed a petition
for certiorari before the Court of Appeals.
On March 26, 1992, the Eighth Division of the Court of Appeals dismissed the petition and
upheld the RTC’s issuances. The decision became final and executory on July 31, 1992.5
On January 5, 1995, Judge Tirso Velasco of the RTC in Quezon City, Branch 88, issued an
Alias Writ of Demolition. On June 20, 1995, the sheriff tried to demolish the small house
pursuant to the writ. Petitioner filed a Third Party Claim with Prayer to Quash Alias Writ of
Demolition. He maintains that the writ of demolition could not apply to his property since he
was not a party to the civil case. His Third Party Claim with prayer to quash the writ of demolition
was denied for lack of merit on August 16, 1995.6 The motion for reconsideration as well as
the Supplemental Motion for Reconsideration dated September 12, 1995 were denied on
October 19, 1995.7
Petitioner, thereafter, filed a petition for certiorari before the Court of Appeals, docketed as CA-
G.R. SP No. 39166, asserting that the existence of the easement of right of way was not
annotated in his title and that he was not a party to Civil Case No. Q-91-8703, hence the
contract of easement executed by the Gabriels in favor of the Espinolas could not be enforced
against him. The Court of Appeals dismissed the petition for lack of merit and denied the
reconsideration, disposing thus:
WHEREFORE, the instant petition is hereby dismissed by this court for lack of merit.
No costs considering the failure of private respondents to file their comment, despite notice.8
Hence, this instant petition.
Petitioner now avers that the appellate court erred in declaring,
(1) THAT FOLLOWING THE ESSENCE OF INHERENCE AND INTRANSMISSIBILITY OF AN
EASEMENT, A RIGHT OF WAY CAN EXIST EVEN IF THEY ARE NOT EXPRESSLY STATED
OR ANNOTATED ON THE TORRENS TITLE;
(2) THAT PETITIONER, AS PROSPECTIVE BUYER, SHOULD HAVE EXERCISED
ORDINARY PRUDENCE BY TAKING THE INITIATIVE TO DETERMINE THAT AN
EASEMENT HAS BEEN CONSTITUTED ON THE PROPERTY HE INTENDS TO BUY; AND,
(3) THAT IN AS MUCH AS THE HEREIN PETITIONER IS NOT A PARTY TO CIVIL CASE
NO. Q-91-8703, HE CANNOT BE BOUND BY ANY JUDGMENT OR ORDER RENDERED
THEREIN.9
Primarily, the issue is whether the easement on the property binds petitioner.
Petitioner argues it could not be enforced against him. First, he says that a right of way cannot
exist when it is not expressly stated or annotated on the Torrens title. According to him, even
if an easement is inherent and inseparable from the estate to which it actively belongs as
provided in Art. 617 of the Civil Code,10 the same is extinguished when the servient estate is
registered and the easement was not annotated in said title conformably with Section 39 of the
Land Registration Law. Second, petitioner points out that the trial court erred when it faulted
him for relying solely on the clean title of the property he bought, as it is well-settled that a
person dealing with registered land is not required to go beyond what is recorded in the title.
He adds that it is private respondents who should have made sure their right of way was
safeguarded by having the same annotated on the title with the Register of Deeds. He adds
that Section 76 of P.D. No. 152911 also requires that when a case is commenced involving
any right to registered land under the Land Registration Law (now the Property Registration
Decree), any decision on it will only be effectual between or among the parties thereto, unless
a notice of lis pendens of such action is filed and registered in the registry office where the land
is recorded. There was no such annotation in the title of the disputed land, according to
petitioner. Lastly, since he was not a party to Civil Case No. Q-91-8703, petitioner argues that
he cannot be bound by the writ of demolition and be forcibly divested of a portion of his land
without having his day in court.
Private respondents Sebastian and Lorilla, for their part, adopted the disquisition of the
appellate court as their Comment and asked for the dismissal of the petition and P100,000.00
in damages. In its decision the appellate court, citing the decision of the lower court, stressed
that unlike other types of encumbrance of real property, a servitude like a right of way can exist
even if they are not expressly stated or annotated as an encumbrance in a Torrens title because
servitudes are inseparable from the estates to which they actively or passively belong.
Moreover, Villanueva was bound by the contract of easement, not only as a voluntary easement
but as a legal easement. A legal easement is mandated by law, and continues to exists unless
its removal is provided for in a title of conveyance or the sign of the easement is removed
before the execution of the conveyance conformably with Article 64912 in accordance with
Article 61713 of the Civil Code.
At the outset, we note that the subject easement (right of way) originally was voluntarily
constituted by agreement between the Gabriels and the Espinolas. But as correctly observed
by the Court of Appeals, the easement in the instant petition is both (1) an easement by grant
or a voluntary easement, and (2) an easement by necessity or a legal easement. A legal
easement is one mandated by law, constituted for public use or for private interest, and
becomes a continuing property right.14 As a compulsory easement, it is inseparable from the
estate to which it belongs, as provided for in said Article 617 of the Civil Code. The essential
requisites for an easement to be compulsory are: (1) the dominant estate is surrounded by
other immovables and has no adequate outlet to a public highway; (2) proper indemnity has
been paid; (3) the isolation was not due to acts of the proprietor of the dominant estate; (4) the
right of way claimed is at a point least prejudicial to the servient estate; and (5) to the extent
consistent with the foregoing rule, where the distance from the dominant estate to a public
highway may be the shortest.15 The trial court and the Court of Appeals have declared the
existence of said easement (right of way). This finding of fact of both courts below is conclusive
on this Court,16 hence we see no need to further review, but only to re-affirm, this finding. The
small house occupying one meter of the two-meter wide easement obstructs the entry of private
respondents’ cement mixer and motor vehicle. One meter is insufficient for the needs of private
respondents. It is well-settled that the needs of the dominant estate determine the width of the
easement.17 Conformably then, petitioner ought to demolish whatever edifice obstructs the
easement in view of the needs of private respondents’ estate.
Petitioner’s second proposition, that he is not bound by the contract of easement because the
same was not annotated in the title and that a notice of lis pendens of the complaint to enforce
the easement was not recorded with the Register of Deeds, is obviously unmeritorious. As
already explained, it is in the nature of legal easement that the servient estate (of petitioner) is
legally bound to provide the dominant estate (of private respondents in this case) ingress from
and egress to the public highway.1âwphi1
Petitioner’s last argument that he was not a party to Civil Case No. Q-91-8703 and that he had
not been given his day in court, is also without merit. Rule 39, Sec. 47, of the Revised Rules of
Court:
SEC. 47. Effect of judgments or final orders. – The effect of a judgment or final order rendered
by a court of the Philippines, having jurisdiction to pronounce the judgment or final order, may
be as follows:
(a) In case of a judgment or final order against a specific thing, or in respect to the probate of
a will, or the administration of the estate of a deceased person, or in respect to the personal,
political, or legal condition or status of a particular person or his relationship to another, the
judgment or final order is conclusive upon the title to the thing, the will or administration, or the
condition, status or relationship of the person; however, the probate of a will or granting of
letters of administration shall only be prima facie evidence of the death of the testator or
intestate;
(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged or
as to any other matter that could have been raised in relation thereto, conclusive between the
parties and their successors in interest by title subsequent to the commencement of the action
or special proceeding, litigating for the same thing and under the same title and in the same
capacity; and
(c) In any other litigation between the same parties or their successors in interest, that only is
deemed to have been adjudged in a former judgment or final order which appears upon its face
to have been so adjudged, or which was actually and necessarily included therein or necessary
thereto. (Emphasis ours).
Simply stated, a decision in a case is conclusive and binding upon the parties to said case and
those who are their successor in interest by title after said case has been commenced or filed
in court.18 In this case, private respondents, Julio Sebastian and Shirley Lorilla, initiated Civil
Case No. Q-91-8703 on May 8, 1991,19 against the original owners, the spouses Maximo and
Justina Gabriel. Title in the name of petitioner was entered in the Register of Deeds20 on March
24, 1995, after he bought the property from the bank which had acquired it from the Gabriels.
Hence, the decision in Civil Case No. Q-91-8703 binds petitioner. For, although not a party to
the suit, he is a successor-in-interest by title subsequent to the commencement of the action
in court.
WHEREFORE, the instant petition is DENIED. The assailed decision and resolution of the
Court of Appeals are AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.
G.R. No. 95738 December 10, 1991
ADRIANA DIONISIO, ET AL., petitioners,
vs.
JUDGE RODOLFO ORTIZ OF THE REGIONAL TRIAL COURT OF QUEZON CITY,
BRANCH 89 AND PABLO TAN GONZAGA, et al., respondents.
Herrera, Laurel, De los Reyes, Roxas & Teehankee for petitioners.
Sergio Ortiz for private respondents.
GUTIERREZ, JR., J.:
The controversy in the instant case arose from the private respondents' act of opening a new
gate along Howmart Road claiming an easement of right of way in their favor.
The facts are as follows:
The petitioners are co-owners of lots contiguous to each other situated in the Sitio of Kangkong,
District of Balintawak, Quezon City.
The private respondents are also co-owners of lots which are adjacent to the lots owned by the
petitioners. Lot 272-B has an area of 1,427 sq. m. which was later subdivided into two lots
where Lot 272-A was assigned to Chua Lee and Chua Bun Tong pursuant to a memorandum
agreement executed by and between them. They are also owners of another lot at the upper
portion of Lot 272-B with an area of 914 sq. m.
By virtue of an agreement entered intobetween the owners of the contiguous lots and the
members of the Quezon City Industrial Estates Association (QCIEA), a right of way was granted
over Howmart Road which is a private road traversing the contiguous lots owned by the
petitioners, among others, in favor of the QCIEA members. In return for its use, QCIEA paid
compensation to the petitioners for this right of way. The private respondents are bona fide
members of the QCIEA.
In order to have access to Howmart Road, there is a gate in private respondents' 914 sq. m.
lot fronting Howmart Road and another gate in Lot 272-A. As a result of the subdivision of Lot
272, the private respondents opened a new gate in Lot 272-B also fronting Howmart Road
which is now the gate in question.
On October 5, 1989, under the instructions of Maxima Dionisio, certain persons commenced
the digging of four holes in a parallel line and afterwards put up steel posts wielded to a steel
plate in front of the newly constructed gate of private respondents amidst the latter's
protestations.The petitioners claim that the surreptitiously constructed gate opened directly into
the house of Maxima Dionisio, exposing them to air and noise pollution arising from the
respondents' delivery trucks and service vehicles.
On November 7, 1989, the private respondents instituted a civil action for damages against the
petitioners. The complaint sought the immediate issuance of a writ of preliminary injunction
ordering the petitioner to remove the barricade erected by them in front of the iron gate.
On January 8, 1990, respondent Judge Ortiz issued an Order granting the writ of preliminary
mandatory injunction. The dispositive portion of the order reads:
ACCORDINGLY, plaintiffs' prayer for the issuance of a writ of preliminary mandatory injunction
is GRANTED, and a writ of preliminary mandatory injunction shall issue ordering the
defendants to remove the barricade erected by them in front of the iron gate of the plaintiffs at
their Lot 272-B, within twenty-four (24) hours from receipt of the writ, and in case of their failure
to do so, the plaintiffs are authorized to remove the said barricade by themselves, the expenses
for which is chargeable to the defendants, upon plaintiffs' putting up of a bond in the amount of
P20,000.00, approved by this Court, and conditioned as provided in the Rules, within five (5)
days from receipt of this order. (Rollo, p. 34)
The petitioners then filed a petition for certiorari before the Court of Appeals assailing the Order
of Judge Ortiz.
Fifteen days later, the petitionersremoved the barricade in front of the gate of the private
respondents after they failed to obtain a temporary restraining order (TRO) from the Court of
Appeals enjoining the lower court from implementing its order.
The Court of Appeals dismissed the petition on the ground that the issue has already become
moot and academic since the petitioners have already complied with the Order of the lower
court.
The petitioners' motion for reconsideration was likewise denied.
Hence, this petition alleging that:
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONERS'
COMPLIANCE WITH THE ORDER DATED 8 JANUARY 1990 GRANTING THE WRIT OF
PRELIMINARY MANDATORY INJUNCTION RENDERS THE PETITION FOR CERTIORARI
MOOT AND ACADEMIC CONSIDERING THAT:
1. THE HONORABLE COURT OF APPEALS CAN STILL GRANT PRACTICAL RELIEF TO
THE PARTIES BY RECALLING OR LIFTING THE WRIT OF PRELIMINARY MANDATORY
INJUNCTION.
2. THE ISSUANCE OF THE WRIT OF PRELIMINARY MANDATORY INJUNCTION SHOULD
NOT PREEMPT THE RESOLUTION OF THE PETITION ON THE ISSUE OF THE VALIDITY
OF THE ORDER GRANTING THE WRIT. (Rollo, pp. 17-18)
The real issue to be resolved in this case is whether or not the private respondents have an
easement of right of way over Howmart Road. Afterwhich it can be determined whether or not
the private respondents are entitled to the injunctive relief.
The private respondents' claim that they have every right to use Howmart Road as passageway
to EDSA by reason of the fact that public respondents are bonafide members of the QCIEA
which has a standing oral contract of easement of right of way with the petitioners. The contract
is still subsisting even after its alleged expiration in December, 1988 as evidenced by the two
(2) letters signed by Maxima Dionisio and Atty. Telesforo Poblete, counsel for the Dionisio
Family addressed to the QCIEA requesting for an increase in the compensation for said right
of way. In such a case, it is alleged that the petitioners did not have the right to put the barricade
in question in front of the private respondents' gate and stop them from using said gate as
passageway to Howmart Road.
There is no question that a right of way was granted in favor of the private respondents over
Howmart Road but the records disclose that such right of way expired in December, 1988. The
continued use of the easement enjoyed by QCIEAincluding the private respondents is by the
mere tolerance of the owners pending the renegotiation of the terms and conditions of said
right of way. This is precisely shown by the two letters to the QCIEA requesting for an increase
in compensation for the use of Howmart Road. Absent an agreement of the parties as to the
consideration, among others, no contract of easement of right of way has been validly entered
into by the petitioners and QCIEA (see Robleza v. Court of Appeals, (74 SCRA 354 [1989]).
Thus, the private respondents' claim of an easement of right of way over Howmart Road has
no legal or factual basis.
Not having any right, the private respondents arenot entitled to the injunctive relief granted by
the lower court.
We have held in several cases that in order to be entitled to an injunctive writ, one must show
an unquestionable right over the premises and that such right has been violated. (Rivera v.
IAC, 169 SCRA 307 [1989]; Viray v. CA, 191 SCRA 308 [1990]; Buayan Cattle Co. Inc. v.
Quintillan, 128 SCRA 276 [1984])
The party applying for preliminary injunction must show that (a) the invasion of the right sought
to be protected is material and substantial; (b) the right of complainant is clear and
unmistakable; and (c) there is an urgent and paramount necessity for the writ to prevent serious
damage. (Director of Forest Administration v. Fernandez, 192 SCRA 121 [1990]; Phil. Virginia
Tobacco Administration v. Delos Angeles, 164 SCRA 543 [1988])
In the case at bar, the private respondents have not shown that there is an urgent and
paramount necessity for the issuance of the writ.
The records show that there are two (2) gates through which the private respondents may pass
to have direct access to EDSA: (1) the northern gate which opens directly to EDSA; and (2) the
southern gate along Howmart Road. The records also disclose that the petitioners and the
other lot owners previously prohibited and prevented members of QCIEA from opening new
gates. The claim that they were forced to open a new gate by reason of the subdivision of Lot
272 where a wall was constructed between these 2 lots is untenable. The private respondents
can not assert a right of way when by their own or voluntary act, they themselves have caused
the isolation of their property from the access road. Article 649 of Civil Code justifies petitioners'
claim, to wit:
Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables pertaining to other persons and without
adequate outlet to a public highway, is entitled to demand a right of way through the neigboring
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. (564a) (Emphasis supplied)
The construction of a wall between the 2 lots leaving only a small passageway between them
is an act imputable to the private respondents which precludes them from asserting a right of
way. The opening of the new gate would definitely be very convenient to the private
respondents but mere convenience is not enough to serve as basis for the assertion of a right
of way. (see Ramos, Sr. v. Gatchalian Realty, Inc., 154 SCRA 703 [1987])
It was therefore inaccurate for the lower court to state that the private respondents have shown
a clear right to justify the issuance of the writ of preliminary injunction when the facts and
circumstances of the case do not warrant it. In such a case, certiorari will lie to correct the
abuse of discretion committed by the lower court. (Maguan v. Court of Appeals, 146 SCRA 107
[1986]). Such task was incumbent upon the Court of Appeals when the petitioners filed their
petition for certiorari before it questioning the propriety of the Order of the lower court. The
respondent Court, however, dismissed the petition on the ground that the issue was already
moot and academic upon the petitioners' compliance with the Order of the respondent Judge.
The fact that the barricade constructed by the petitioners was already removed upon the
issuance of the questioned preliminary injunction does not make the petition moot and
academic as ruled by the Court of Appeals. The granting of the writ and the subsequent
compliance should not preempt the determination of the issue brought before it. The validity of
the Order was precisely the subject of the petition for certiorari. As aptly explained in the case
of Anglo-Fil Trading Corporation v. Lazaro, 124 SCRA 494 [1983]:
xxx xxx xxx
The petitioners' contention that the lifting of the restraining order had rendered moot and
academic the injunction case in the trial court is likewise untenable. A restraining order is
dstinguished from an injunction in that it is intended as a restraint on the defendant until the
propriety of granting an injunction pendente lite can be determined, and it goes no further than
to preserve the status quo until such determination. Therefore, the grant, denial, or lifting of a
restraining order does not in anyway pre-empt the court's power to decide the issue in the main
action which in the case at bar, is the injunction suit. In fact, the records will show that the trial
court proceeded with the main suit for injunction after the lifting of the restraining orders. (At p.
512)
The Court of Appeals has the power to recallor lift the writ of preliminary mandatory injunction
so issued if it finds that the party is not so entitled. However, in dismissing the petition the court,
in effect affirmed the lower court's finding that the private respondents were indeed entitled to
the writ of preliminary injunction. But as we have earlier found, the private respondents are not
entitled to the injunctive relief considering that they have no clear right over Howmart Road.
WHEREFORE, the petition is hereby GRANTED. The questioned decision of the Court of
Appeals and the Order of the Regional Trial Court in Civil Case No. Q-89-3949 are SET ASIDE.
The writ of preliminary injunction is hereby LIFTED.
SO ORDERED.
Bidin, Davide, Jr. and Romero, JJ., concur.
G.R. No. 127549 January 28, 1998
SPOUSES CESAR and RAQUEL STA. MARIA and FLORCERFIDA STA. MARIA,
petitioners,
vs.
COURT OF APPEALS, and SPOUSES ARSENIO and ROSLYNN FAJARDO, respondents.
DAVIDE, JR., J.:
This is an appeal under Rule 45 of the Rules of Court from the decision1 of 18 December 1996
of the Court of Appeals in CA-G.R. CV No. 48473, which affirmed with modification the 30 June
1994 Decision 2 of Branch 19 of the Regional Trial Court of Bulacan in Civil Case No. 77-M-92
granting the private respondents a right of way through the property of the petitioners.
The antecedent facts, as summarized by the Court of Appeals, are as follows:
Plaintiff spouses Arsenio and Roslynn Fajardo are the registered owners of a piece of land, Lot
No. 124 of the Obando Cadastre, containing an area of 1,043 square meters, located at Paco,
Obando, Bulacan, and covered by Transfer Certificate Title (TCD No. T-147729 (M) of the
Registry of Deeds of Meycauayan, Bulacan (Exhibit "B", p. 153 Orig. Rec.). They acquired said
lot under a Deed of Absolute Sale dated February 6, 1992 executed by the vendors Pedro M.
Sanchez, et al. (Annex "A", Complaint; pp. 7-8 ibid.).
Plaintiff's aforesaid Lot 124 is surrounded by Lot 1 (Psd 45412), a fishpond (Exh. "C-5"; p. 154,
ibid.), on the northeast portion thereof; by Lot 126, owned by Florentino Cruz, on the southeast
portion; by Lot 6-a and a portion of Lot 6-b (both Psd-297786) owned respectively by Spouses
Cesar and Raquel Sta. Maria and Florcerfida Sta. Maria (Exhs. "C-2" and "C-3", ibid.), on the
southwest; and by Lot 122, owned by the Jacinto family, on the northwest.
On February 17, 1992, plaintiff spouses Fajardo filed a complaint against defendants Cesar
and Raquel Sta. Maria or Florcerfida Sta. Maria for the establishment of an easement of right
of way. Plaintiffs alleged that their lot, Lot 124, is surrounded by properties belonging to other
persons, including those of the defendants; that since plaintiffs have no adequate outlet to the
provincial road, an easement of a right of way passing through either of the alternative
defendants' properties which are directly abutting the provincial road would be plaintiffs' only
convenient, direct and shortest access to and from the provincial road; that plaintiffs'
predecessors-in-interest have been passing through the properties of defendants in going to
and from their lot; that defendants' mother even promised plaintiffs' predecessors-in-interest to
grant the latter an easement of right of way as she acknowledged the absence of an access
from their property to the road; and that alternative defendants, despite plaintiffs' request for a
right of way and referral of the dispute to the barangay officials, refused to grant them an
easement. Thus, plaintiffs prayed that an easement of right of way on the lots of defendants be
established in their favor. They also prayed for damages, attorney's fees and costs of suit.
Defendants, instead of filing an answer, filed a motion to dismiss (pp. 41-45, ibid.) on the ground
that the lower court has no jurisdiction to hear the case since plaintiffs failed to refer the matter
to the barangay lupon in accordance with Presidential Decree No. 1508. The lower court,
however, in its Order dated May 18, 1992, denied said motion on the premise that there was
substantial compliance with the law.
On May 25, 1992, defendants filed a "Notice of Appeal" to the Supreme Court of the questioned
order of the lower court denying their motion to dismiss, under Rule 45 of the Rules of Court
(p. 54, ibid.). On June 24, 1992, the lower court denied the notice of appeal for lack of merit (p.
86, ibid).
In the meantime, defendants filed a petition for review on certiorari of the lower court's Order
dated May 18, 1992 (pp. 64-84, ibid.). In an Order dated July 8, 1992, the Third Division of the
Supreme Court denied said petition for failure to comply with Revised Circular Nos. 1-88 and
Circular No. 28-01 (p. 97, ibid.). Defendants' motion for reconsideration was likewise denied
with finality on July 20, 1992 (p. 96, ibid.).
Consequently, defendants filed their answer to the court below where they alleged that the
granting of an easement in favor of plaintiffs would cause them great damage and
inconvenience; and that there is another access route from plaintiffs' lot to the main road
through the property of Florentino Cruz which was likewise abutting the provincial road and
was being offered for sale. By way of counterclaim, defendants prayed for damages and
attorney's fees.
The parties not having settled their dispute during the pre-trial (p.120, Orig. Record), the court
directed that an ocular inspection be conducted of the subject property, designating the branch
clerk of court as its commissioner. In time, an Ocular Inspection Report dated December 3,
1992 (Exhs. "J" and "J- 1") was submitted. After trial on the merits, the lower court rendered
the assailed decision granting plaintiffs' prayer for an easement of right of way on defendants'
properties.3
The trial court found that based on the Ocular Inspection Report there was no other way
through which the private respondents could establish a right of way in order to reach the
provincial road except by traversing directly the property of the petitioners. It further found that
(a) no significant structure, save for a wall or fence about three feet high, would be adversely
affected; (b) there was sufficient vacant space of approximately 11 meters between petitioners'
houses; and (c) petitioners' property could provide the shortest route from the provincial road
to the private respondents' property. Consequently, the trial court granted the easement prayed
for by the private respondents in a decision dated 30 June 1994, 4 whose decretal portion
reads as follows:
WHEREFORE, premises considered the Court orders that a right-of-way be constructed on the
defendants' property covered by TCT No. 0-6244 of about 75 sq. meters, 25 sq. meters shall
be taken from the lot of Florcerfida Sta. Maria and 50 sq. meters from the property of Cesar
Sta. Maria to be established along lines 1-2 of lot 6-c and along lines 3-4 of lot 6-b and to
indemnify the owners thereof in the total amount of P3,750.00 (P1,250.00 goes to Florcerfida
Sta. Maria and P2,500.00 to Cesar Sta. Maria) and to reconstruct the fence to be destroyed in
the manner it was at the time of the filing of this action.
The petitioners seasonably appealed from the aforementioned decision to the Court of
Appeals, which docketed the case as CA-G.R. CV No. 48473.
The Court of Appeals agreed with the trial court that the private respondents had sufficiently
established the existence of the four requisites for compulsory easement of right of way on
petitioners' property, to wit: (1) private respondents' property was, as revealed by the Ocular
inspection Report, surrounded by other immovables owned by different individuals and was
without an adequate outlet to a public highway; (2) the isolation of private respondents' property
was not due to their own acts, as it was already surrounded by other immovables when they
purchased it; (3) petitioners' property would provide the shortest way from private respondents'
property to the provincial road, and this way would cause the least prejudice because no
significant structure would be injured thereby; and (4) the private respondents were willing to
pay the corresponding damages provided for by law if the right of way would be granted.
Accordingly, in its decision 5 of 18 December 1996, the Court of Appeals affirmed the trial
court's decision, but modified the property valuation by increasing it from P50 to P2,000 per
square meter.
The petitioners forthwith filed this petition for review on certiorari based on the following
assignment of errors:
I.
WHETHER OR NOT A COMPULSORY EASEMENT OF RIGHT OF WAY CAN BE
ESTABLISHED IN THE LIGHT OF THE DOCTRINE LAID DOWN BY THE HON. SUPREME
COURT IN COSTABELLA CORPORATION VS. COURT OF APPEALS, 193 SCRA 333, 341
WHICH HELD THAT [FOR] THE FAILURE OF PRIVATE RESPONDENTS TO SHOW THAT
THE ISOLATION OF THEIR PROPERTY WAS NOT DUE TO THEIR PERSONAL OR THEIR
PREDECESSORS-IN-INTEREST'S OWN ACTS, THEY ARE NOT ENTITLED TO A
COMPULSORY EASEMENT OF RIGHT OF WAY.
II.
WHETHER OR NOT A COMPULSORY RIGHT OF WAY CAN BE GRANTED TO PRIVATE
RESPONDENTS WHO HAVE TWO OTHER EXISTING PASSAGE WAYS OTHER THAN
THAT OF PETITIONERS AND AN ALTERNATIVE VACANT LOT FRONTING THE
PROVINCIAL ROAD ALSO ADJACENT TO PRIVATE RESPONDENTS' PROPERTY, WHICH
CAN BE USED IN GOING TO AND FROM PRIVATE RESPONDENTS' PROPERTY.
III.
RESPONDENT HON. COURT OF APPEALS GRAVELY ERRED IN MAKING A PORTION OF
ITS STATEMENT OF FACTS FROM ALLEGATIONS IN THE COMPLAINT AND NOT FROM
THE EVIDENCE ON RECORD.
IV.
RESPONDENT HON. COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT
PRIVATE RESPONDENTS HAVE NO ADEQUATE OUTLET TO A PUBLIC HIGHWAY
WHICH INFERENCE DRAWN FROM FACTS WAS MANIFESTLY MISTAKEN. 6
The first, second, and fourth assigned errors involve questions of fact. Settled is the rule that
the jurisdiction of this Court in cases brought before it from the Court of Appeals via Rule 45 of
the Rules of Court is limited to reviewing errors of law. Findings of fact of the latter are
conclusive, except in the following instances: (1) when the findings are grounded entirely on
speculation, surmises, or conjectures; (2) when the inference made is manifestly mistaken,
absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of fact are conflicting; (6) when in
making its findings the Court of Appeals went beyond the issues of the case, or its findings are
contrary to the admissions of both the appellant and the appellee; (7) when the findings are
contrary to those of the trial court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts set forth in the petition as well
as in the petitioner's main and reply briefs are not disputed by the respondent; and (10) when
the findings of fact are premised on the supposed absence of evidence and contradicted by
the evidence on record.7
A perusal of the pleadings and the assailed decision of the Court of Appeals, as well as of the
decision of the trial court, yields no ground for the application of any of the foregoing exceptions.
All told, the findings of fact of both courts satisfied the following requirements for an estate to
be entitled to a compulsory servitude of right of way under the Civil Code, to wit:
1. the dominant estate is surrounded by other immovables and has no adequate outlet to a
public highway (Art. 649, par. 1);
2. there is payment of proper indemnity (Art. 649, par. 1);
3. the isolation is not due to the acts of the proprietor of the dominant estate (Art. 649, last par.);
and
4. 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).8
As to such requisites, the Court of Appeals made the following disquisitions:
Anent the first requisite, there is no dispute that the plaintiffs-appellees' property is surrounded
by other immovables owned by different individuals. The ocular inspection report submitted to
the lower court reveals that:
The property of the plaintiffs, spouses Arsenio and Roslynn Fajardo, is completely surrounded
with adobe fence without any point of egress and ingress to the national road. Said plaintiffs'
property containing an area of 1,043 square meters and covered by OCT No. O-6244 of the
Registry of Deeds of Bulacan was situated directly behind defendants' property which abuts
the national road. Defendants, spouses Cesar and Racquel Sta. Maria, are the absolute
owners of the parcel of land with an area of 537 square meters and embraced under TCT No.
T-37.762(M) situated on the left side abutting the national road with their house thereon made
of wood and hollow blocks, while defendant Florcerfida Sta. Maria is the absolute owner of a
parcel of land with a similar area of 537 square meters and covered by TCT No. T-37.762(M)
situated on the right side and likewise abutting the national road with an impressive house
thereon of modern vintage made of strong materials. As depicted in the rough sketch hereto
attached, plaintiffs have absolutely no means of ingress and egress to their property as the
same is completely isolated by properties owned by other persons. On the left side is the
property of Florentino Cruz, on the right side is the property reportedly owned by the Jacintos;
and on the front portion are properties owned by defendants. . . . .
(Ocular Inspection Report, p. 135, Orig. Rec.)
Plaintiffs-appellees' property is likewise without adequate outlet to a public highway. The
existing passage way for people ("daang tao") at the back of plaintiffs-appellees property
leading to the provincial road (TSN, May 17, 1993, p. 12) cannot be considered an adequate
outlet for purposes of establishing an easement. Article 651 of the 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." Thus in the case of
Larracas vs. Del Rio (37 Official Gazette 287), this Court had occasion to rule that "it is not
necessary for a person, like his neighbors, to content himself with a footpath and deny himself
the use of an automobile. So in an age when motor cars are a vital necessity, the dominant
proprietor has a right to demand a driveway for his automobile, and not a mere lane or pathway"
(Cited in Tolentino, ibid., p. 391).
The second requisite for the establishment of an easement of right way, i.e., payment of
indemnity, is likewise present in this case. Plaintiff-appellee spouse Roslynn Fajardo testified
on direct examination that they are willing to pay the corresponding damages provided for by
law if granted the right of way (TSN, November 5, 1992, p. 11).
The third requisite is that the isolation of plaintiffs-appellees' property should not have been
due to their own acts. In the case under consideration, the isolation of their lot is not due to
plaintiffs' acts. The property they purchased was already surrounded by other immovables
leaving them no adequate ingress or egress to a public highway.
Going now to the fourth requisite of "least prejudice" and "shortest distance," We agree with
the lower court that this twin elements have been complied with in establishing the easement
of right of way on defendants-appellants' properties.
It has been commented upon that where there are several tenements surrounding the dominant
estate, and the easement may be established on any of them, the one where the way is shortest
and will cause the least damage should be chosen. But if these two 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. And if the conditions of the various tenements are the same, all the
adjoining owners should be cited and experts utilized to determine where the easement shall
be established (Tolentino, ibid., pp. 108-109, citing Casals Colldecarrera).
In the case at bar, the ocular inspection disclosed that there are three options open to the
plaintiffs-appellees as a route to reach the national road, to wit:
(1) To traverse directly through defendants' property which is the shortest route of
approximately 20 to 25 meters away from the national road;
(2) To purchase a right of way from the adjoining property of Florentino Cruz on the left side of
their property; and
(3) To negotiate with Jacinto family on the right side of their property.
In all instances, no significant structures would be adversely affected. There is sufficient vacant
space between defendants' houses of approximately 11 meters. The distance of defendant
Florcerfida's house with the adjoining adobe wall separating that of the property of defendants
Cesar and Racquel Sta. Maria is about 4 meters, while the space between the adobe wall and
that of the latter's house is about 7 meters or a total of 11 meters vacant space for purposes of
a right of way. On the other hand, plaintiffs may negotiate with a right of way with Florentino
Cruz on the left side of their property although the same is quite circuitous. Lastly, the option
through the property of the Jacinto on the right side is very circuitous and longer. The route
involves a total of about 50 yards as it has to go straight to the right of about 35 yards and turn
left of about another 15 yards before reaching the common right of way.
(Ocular Inspection report, pp. 135-136, ibid.)
Among the three (3) possible servient estates, it is clear that defendants-appellants' property
would afford the shortest distance from plaintiffs-appellees' property to the provincial road.
Moreover, it is the least prejudicial since as found by the lower court, "(i)t appears that there
would be no significant structures to be injured in the defendants' property and the right-of-way
to be constructed thereon would be the shortest of all the alternative routes pointed to by the
defendants" (p. 4, RTC, Decision; p. 223, ibid.).
Petitioners' reliance on Costabella Corporation v. Court of Appeals 9 to support their first
assigned error is misplaced. In said case we reversed the decision of the Court of Appeals
granting a compulsory easement of a right of way to the private respondents therein because
of the absence of any showing that the "private respondents had established the existence of
the four requisites mandated by law." As to the third requisite, we explicitly pointed out; thus:
"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." In the instant case, the
Court of Appeals have found the existence of the requisites. The petitioners, however, insist
that private respondents' predecessors-in-interest have, through their own acts of constructing
concrete fences at the back and on the right side of the property, isolated their property from
the public highway. The contention does not impress because even without the fences private
respondents' property remains landlocked by neighboring estates belonging to different
owners.
Under the second and fourth assigned errors, the petitioners try to convince us that there are
two other existing passage ways over the property of Cruz and over that of Jacinto, as well as
a "daang tao," for private respondents' use. Our examination of the records yields otherwise.
Said lots of Cruz and Jacinto do not have existing passage ways for the private respondents
to use. Moreover, the Ocular Inspection Report 10 reveals that the suggested alternative ways
through Cruz's or Jacinto's properties are longer and "circuitous" than that through petitioners'
property. This is also clear from the Sketch Plan11 submitted by the private respondents
wherein it is readily seen that the lots of Cruz and Jacinto are only adjacent to that of private
respondents unlike that of petitioners which is directly in front of private respondents' property
in relation to the public highway.
Under Article 650 of the Civil Code, 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. Where there are
several tenements surrounding the dominant estate, and the easement may be established on
any of them, the one where the way is shortest and will cause the least damage should be
chosen.12 The conditions of "least damage" and "shortest distance" are both established in
one tenement — petitioners' property.
As to the "daang tao" at the back of private respondents' property, it must be stressed that
under Article 651 the 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.
Therefore, the needs of the dominant estate determine the width of the easement. 13 The
needs of private respondents' property could hardly be served by this "daang tao" located at
the back and which is bordered by a fishpond.14
The third assigned error is without basis and is nothing but a misreading of the challenged
decision. The Court of Appeals did not declare as established facts the allegations of the
complaint referred to by the petitioner. It merely made a brief summary of what were alleged in
the complaint as part of its narration of the antecedents of the case on appeal.
WHEREFORE, the instant petition for review is DENIED and the challenged decision of the
Court of Appeals is AFFIRMED in toto.
Costs against petitioners.
SO ORDERED.
Bellosillo, Vitug and Kapunan, JJ., concur.
G.R. No. 112331 May 29, 1996
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 over shortest distance. This means that the court is
not bound to establish what is the shortest distance; a longer way may be adopted to avoid
injury to the servient estate, such as when there are constructions or walls which can be
avoided by a round about way, or to secure the interest of the dominant owner, such as when
the shortest distance would place the way on a dangerous decline.
Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together with her
brothers Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of property situated in
Pandi, Bulacan. They agreed to subdivide the property equally among themselves, as they did,
with the shares of Anastacia, Sotero, Sulpicio and Rufina abutting the municipal road.
The share of Anastacia, located at the extreme left, was designated as Lot No. 1448-B-1. It is
bounded on the right by the property of Sotero designated as Lot. No. 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 road3 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.
Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.
G.R. No. 157285 February 16, 2007
WOODRIDGE SCHOOL, INC., and MIGUELA JIMENEZ-JAVIER, Petitioners,
vs.
ARB CONSTRUCTION CO., INC., Respondent.
DECISION
CORONA, J.:
Petitioners Woodridge School, Inc. (Woodridge) and Miguela Jimenez-Javier come to us
assailing the decision1 dated September 30, 2002 and resolution2 dated February 14, 2003 of
the Court of Appeals in CA-G.R. CV No. 515333 which, in turn, modified the ruling of the
Regional Trial Court (RTC) of Imus, Cavite awarding ₱500,000 to respondent ARB
Construction Co., Inc. (ARB) as reasonable indemnity for the use of ARB's road lot.3
Woodridge is the usufructuary of a parcel of land covered by Transfer Certificate of Title (TCT)
No. T-363902 in the name of spouses Ernesto T. Matugas and Filomena U. Matugas. Its co-
petitioner, Miguela Jimenez-Javier, is the registered owner of the adjacent lot under TCT No.
T-330688.
On the other hand, ARB is the owner and developer of Soldiers Hills Subdivision in Bacoor,
Cavite, which is composed of four phases. Phase I of the subdivision was already accessible
from the Marcos Alvarez Avenue. To provide the same accessibility to the residents of Phase
II of the subdivision, ARB constructed the disputed road to link the two phases.
As found by the appellate court, petitioners' properties sit right in the middle of several estates:
Phase I of Soldiers Hills Subdivision in the north, a creek in the east and Green Valley
Subdivision the farther east, a road within Soldiers Hills Subdivision IV which leads to the
Marcos Alvarez Avenue in the west and Phase III of Soldiers Hills Subdivision in the south.
Initially, petitioners offered to pay ARB ₱50,000 as indemnity for the use of the road. Adamant,
ARB refused the offer and fenced the perimeter of the road fronting the properties of petitioners.
By doing so, ARB effectively cut off petitioners' access to and from the public highway.
After failing to settle the matter amicably, petitioners jointly filed a complaint4 in the RTC of
Imus, Cavite to enjoin ARB from depriving them of the use of the disputed subdivision road and
to seek a compulsory right of way after payment of proper indemnity. On November 24, 1995,
the trial court rendered its decision in favor of petitioners:
The reasons why this case is not one for a right of way as an easement are not difficult to
discern.
The questioned road is part and parcel of the road network of Soldiers Hills IV, Phase II. This
road was constructed pursuant to the approved subdivision plan of Soldiers Hills IV, Phase II.
As such, the road has already been withdrawn from the commerce of men as the ownership of
which was automatically vested in the government without need of any compensation, although
it is still registered in the name of the [ARB], the moment the subdivision plan was approved.
While it is not yet donated to the government [,] [it] is of no moment for donating this road to
the government is a mere formality.
Differently stated, the government automatically becomes the owner of the subdivisions' roads
the moment the subdivision plan is approved. From that time on, the roads are withdrawn from
the commerce of men even [if] the titles are still registered in the name of the subdivision
owners and the roads are not yet donated to the government. Thus, the subdivision owner can
no longer sell or alienate the roads for they are already owned by the government; thus, even
if [petitioners] want to buy this road, and the [ARB] wants to sell the same, this transaction
cannot materialize for the above-stated reasons. Accordingly, [ARB] cannot prevent/prohibit
plaintiffs from using the road as the same belongs to the government.
xxx xxx xxx
WHEREFORE, … [ARB] is ordered to cease and desist from preventing [petitioners] in using
the subject road or any other road in the subdivision.
xxx xxx xxx
SO ORDERED. 5 (citations omitted)
ARB elevated the case to the Court of Appeals.6 Finding merit in the appeal, the appellate
court reversed the decision of the lower court. It explained that the 1991 case of White Plains
Subdivision[7] did not apply to the present case which was decided under a different factual
milieu:
… In the assailed Decision, the Court below relied on the ruling of the Supreme Court in White
Plains Association, Inc. vs. Legaspi (193 SCRA 765). The ruling is not applicable. In the White
Plains case, the disputed area was specifically set aside by the Quezon City Government, with
the concurrence of the owner and developer of the White Plains Subdivision in Quezon City,
for the purpose of constructing a major thoroughfare open to the general public. The case was
filed by the association of homeowners of White Plains in Quezon City … when the owner-
developer sought to convert the disputed lot to residential lots. The Supreme Court initially held
that the disputed lot was not longer within the commerce of men, it having been segregated for
a particular purpose, that of being used as "part of a mandatory open space reserved for public
use to be improved into the widened Katipunan Road". It was within this context that the
Supreme Court held that "ownership was automatically vested in the Quezon City government
and/or the Republic of the Philippines, without need of paying any compensation".8
The appellate court went on to rule that a compulsory right of way exists in favor of petitioners
as "[t]here is no other existing adequate outlet to and from [petitioners'] properties to the Marcos
Alvarez Avenue other than the subject existing road lot designated as Lot No. 5827-F-1
belonging to [ARB]."9 In addition, it awarded ₱500,000 to ARB as reasonable indemnity for the
use of the road lot.
Acting on petitioners' motion for reconsideration, the appellate court justified the monetary
award in this manner:
In [o]ur Decision, [w]e awarded the amount of ₱500,000.00 merely as reasonable indemnity
for the use of the road lot, not the alienation thereof. The amount was based on equitable
considerations foremost of which is that, while there is no alienation to speak of, the easement
is of long-standing, that is, until a shorter and adequate outlet is established. Moreover, [ARB]
should be compensated for the wear and tear that [petitioners'] use of the road would contribute
to; it is [ARB] which is solely to be credited for the completion of the road lot. Going by the
conservative valuation of the Municipality of Bacoor, Cavite presented by [petitioners], the
4,760 sq. m. road lot would cost ₱1,904,000 but as stated what is compensated is the use of
the road lot not its alienation.
[Petitioners'] original offer cannot be considered a reasonable indemnity, there being a knotty
legal question involved and it is not [ARB's] fault that the parties had to resort to the courts for
a resolution.10
Unsatisfied with the ruling of the appellate court, petitioners filed this petition for review on
certiorari insisting that ARB is not entitled to be paid any indemnity.
Petitioners argue that the contested road lot is a property of public dominion pursuant to Article
42011 of the Civil Code. Specifically, petitioners point out that the disputed road lot falls under
the category "others of similar character" which is the last clause of Article 420 (1).12 Hence,
it is a property of public dominion which can be used by the general public without need for
compensation. Consequently, it is wrong for ARB to exclude petitioners from using the road lot
or to make them pay for the use of the same.
We disagree.
In the case of Abellana, Sr. v. Court of Appeals,13 the Court held that "the road lots in a private
subdivision are private property, hence, the local government should first acquire them by
donation, purchase, or expropriation, if they are to be utilized as a public road."14 Otherwise,
they remain to be private properties of the owner-developer.
Contrary to the position of petitioners, the use of the subdivision roads by the general public
does not strip it of its private character. The road is not converted into public property by mere
tolerance of the subdivision owner of the public's passage through it. To repeat, "the local
government should first acquire them by donation, purchase, or expropriation, if they are to be
utilized as a public road."15
Likewise, we hold the trial court in error when it ruled that the subject road is public property
pursuant to Section 2 of Presidential Decree No. 1216.16 The pertinent portion of the provision
reads:
Section 2. xxx xxx xxx
Upon their completion as certified to by the Authority, the roads, alleys, sidewalks and
playgrounds shall be donated by the owner or developer to the city or municipality and it shall
be mandatory for the local governments to accept them provided, however, that the parks and
playgrounds may be donated to the Homeowners Association of the project with the consent
of the city or municipality concerned…
The law is clear. The transfer of ownership from the subdivision owner-developer to the local
government is not automatic but requires a positive act from the owner-developer before the
city or municipality can acquire dominion over the subdivision roads. Therefore, until and unless
the roads are donated,17 ownership remains with the owner-developer.18
Since no donation has been made in favor of any local government and the title to the road lot
is still registered in the name of ARB, the disputed property remains private.
This is not to say that ARB may readily exclude petitioners from passing through the property.
As correctly pointed out by the Court of Appeals, the circumstances clearly make out a case of
legal easement of right of way. It is an easement which has been imposed by law and not by
the parties and it has "for (its) object either public use or the interest of private persons."19
To be entitled to a legal easement of right of way, the following requisites must concur: (1) the
dominant estate is surrounded by other immovables and has no adequate outlet to a public
highway; (2) payment of proper indemnity; (3) the isolation was not due to acts of the proprietor
of the dominant estate and (4) the right of way claimed is at the point least prejudicial to the
servient estate.20
The appellate and trial courts found that the properties of petitioners are enclosed by other
estates without any adequate access to a public highway except the subject road lot which
leads to Marcos Alvarez Avenue.21 Although it was shown that the shortest distance from the
properties to the highway is toward the east across a creek, this alternative route does not
provide an adequate outlet for the students of the proposed school. This route becomes marshy
as the creek overflows during the rainy season and will endanger the students attending the
school.
All told, the only requisite left unsatisfied is the payment of proper indemnity.
Petitioners assert that their initial offer of ₱50,000 should be sufficient compensation for the
right of way. Further, they should not be held accountable for the increase in the value of the
property since the delay was attributable to the stubborn refusal of ARB to accept their offer.22
Again, we are not persuaded.
In the case of a legal easement, Article 649 of the Civil Code prescribes the parameters by
which the proper indemnity may be fixed. Since the intention of petitioners is to establish a
permanent passage, the second paragraph of Article 649 of the Civil Code particularly applies:
Art 649. xxx xxx xxx
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. (Emphasis supplied)
On that basis, we further hold that the appellate court erred in arbitrarily awarding indemnity
for the use of the road lot.
The Civil Code categorically provides for the measure by which the proper indemnity may be
computed: value of the land occupied plus the amount of the damage caused to the servient
estate. Settled is the rule in statutory construction that "when the law is clear, the function of
the courts is simple application."23 Thus, to award the indemnity using factors different from
that given by the law is a complete disregard of these clear statutory provisions and is evidently
arbitrary. This the Court cannot countenance. The Civil Code has clearly laid down the
parameters and we cannot depart from them. Verba legis non est recedendum.
Having settled the legal issues, we order the remand of this case to the trial court for reception
of evidence and determination of the limits of the property to be covered by the easement, the
proper indemnity to be paid and the respective contributions of petitioners.
For the guidance of the trial court, the fact that the disputed road lot is used by the general
public may be taken in consideration to mitigate the amount of damage that the servient estate
is entitled to, in the sense that the wear and tear of the subject road is not entirely attributable
to petitioners.
WHEREFORE, this petition is partially GRANTED. The September 30, 2002 Decision and
February 14, 2003 resolution of the Court of Appeals in CA-G.R. CV No. 515333 are
ANNULLED and SET ASIDE in so far as petitioners are ordered to pay an indemnity of
₱500,000. The case is hereby remanded to the trial court for reception of evidence and
determination of the limits of the property to be covered by the easement, the proper indemnity
to be paid and the respective contributions of petitioners.
SO ORDERED.
G.R. No. 194488 February 11, 2015
ALICIA B. REYES, Petitioner,
vs.
SPOUSES FRANCISCO S. VALENTIN and ANATALIA RAMOS, Respondents.
DECISION
LEONEN, J.:
This is a Rule 45 Petition1 of the Court of Appeals Decision2 dated August 12, 2010 and of the
Court of Appeals Resolution3 dated October 28, 2010.
On March 28, 2006, petitioner Alicia B. Reyes, through Dolores B. Cinco,4 filed a Complaint5
before the Regional Trial Court of Maloles, Bulacan, for easement of right ofway against
respondents, Spouses Francisco S. Valentin and Anatalia Ramos.6
In her Complaint before the Regional Trial Court, petitioner alleged that she was the registered
owner of a 450-square-meter parcel of land in Barangay Malibong Bata, Pandi, Bulacan,
designated as Lot No. 3-B-12 and covered by TCT No. T-343642-(M).7 The property used to
be a portion of Lot No. 3-B8 and was surrounded by estates belonging to other persons.9
Petitioner also alleged that respondents’ 1,500-square-meter property surrounded her
property, and that it was the only adequate outlet from her property to the highway.10 A 113-
square-meter portion of respondents’ property was also the "point least prejudicial to the
[respondents]."11 The easement sought was the vacant portion near the boundary of
respondents’ other lot.12
Figure 1. Drawing13 showing the location of petitioner’s and respondents’ properties in relation
to the proposed easement. Petitioner’s property is located on the leftmost part of the drawing.
Respondents’ property and the proposed 113-square-meter easement are located on the
drawing’s right side that contains petitioner’s property. Barangay Malibong Bata Road can be
seen on the rightmost part of the drawing.
Petitioner insisted that her property was not isolated because of her own acts.14 When her
mother gave the property to her as part of her inheritance, there was no intention for the
property to have no outlet.15
According to petitioner, her and respondents’ lots were previously owned by her mother.
Respondents’ lot was given to Dominador Ramos (Dominador) who allegedly was respondents’
predecessor-in-interest. Dominador was also her mother’s brother and caretaker of
properties.16
Only 500 square meters were given to Dominador. Part of the 1,500 square meters was
intended as a right of way. Dominador was tasked to prepare the documents. But, instead of
limiting the conveyance to himself to 500 square meters of the property, he conveyed the whole
1,500 square meters, including that which was supposed to be the access to the barangay
road.17 Petitioner’s mother only learned about what Dominador did when a meeting was called
in 1989 regarding the implementation of the Comprehensive Agrarian Reform Program.18 She
did not cause the recovery of her title because at that time, the Register of Deeds of Bulacan
was razed by fire, causing the destruction of the documents covering the subject properties.
Dominador was also her brother, whom she presumed would give her a right of way to the main
road. Instead of giving way, however, he closed the passage, causing petitioner’s property’s
isolation.19 Despite demands and willingness to pay the amount, respondents refused to
accede to petitioner’s claims.20
In their Answer,21 respondents contended that the isolation of petitioner’s property was due to
her mother’s own act of subdividing the property among her children without regard to the
pendency of an agrarian case between her and her tenants.22 The property chosen by
petitioner as easement was also the most burdensome for respondents.23 Respondents
pointed to an open space that connected petitioner’s property to another public road.24
Upon agreement by the parties, the Branch Clerk of Court conducted an ocular inspection of
the premises in February 2007, in the presence of the parties.25
After an Ocular Inspection Report26 was submitted on March 2, 2007, the case was considered
submitted for decision.27
On April 11, 2007, the trial court issued its Decision,28 dismissing the Complaint for easement
of right of way, thus:29
WHEREFORE, finding the prayer for a grant of compulsory easement of right of way on a 113
square meter portion of defendants’ property to be devoid of merit, the same is hereby DENIED.
Consequently, the case is ordered DISMISSED with no pronouncements as to damages and
costs.30
The trial court found that petitioner’s proposed right of way was not the least onerous to the
servient estate of respondents.31 It noted that the proposed right of way would passthrough
improvements, such as respondents’ garage, garden, and grotto.32 The trial court also noted
the existence of an irrigation canal that limited access to the public road.33 However, the trial
court pointed out that"[o]ther than the existing irrigation canal, no permanent
improvements/structures can be seen standing on the subject rice land."34 Moreover, the
nearby landowner was able to construct a bridge to connect a property to the public road.35
Hence, "[t]he way through the irrigation canal would . . . appear to be the shortest and easiest
way to reach the barangay road."36
Petitioner appealed the Regional Trial Court’s Decision.37
On August 12, 2010, the Court of Appeals denied petitioner’s appeal and affirmed in toto the
Regional Trial Court’s Decision.38 It found no reversible error in the trial court’s decision to
dismiss petitioner’s complaint.39 Petitioner failed to discharge the burden of proving the
existence of the requisites for the grant of easement.40 The Court of Appeals also found that
petitioner’s property had an adequate outlet to the public road.41
Petitioner’s Motion for Reconsideration dated September 8, 2010 was denied by the Court of
Appeals in a Resolution promulgated on October 28, 2010.42
Petitioner filed this Petition on December 22, 201043 to assail the Decision and Resolution of
the Court of Appeals.44
We are asked to determine whether petitioner has the compulsory easement of right of way
over respondents’ property.1âwphi1
Petitioner argued that the Regional Trial Court and the Court of Appeals failed to consider that
it was not her property that was adjacent to the irrigation canal but her sister’s. Her property
was surrounded by other estates belonging to other persons. Hence, she had to pass through
other properties before reaching the irrigation canal.45
Moreover, even if she traversed the other properties, she would only end up on the bank of the
irrigation canal without means to cross over.46 The fact that she had to construct a bridge over
the irrigation canal supported her position that there was indeed no adequate outlet from her
property to the public road.47 In any case, a bridge will necessarily be an obstruction on the
public road.48
Petitioner further argued, citing Quimen v. Court of Appeals,49 that "[t]he 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."50
In their Comment51 on the Petition, respondents argued that this case is already barred by
prior judgment.52 Petitioner’s predecessor-in-interest and her children had already previously
filed an action for easement of right of way against respondents.53 That case had already been
dismissed in favor of respondents.54 The reason for the dismissal of the case was the
possibility of constructing a bridge over the irrigation canal.55 Respondents further argued that
the easement must be real and not fictitious.56
The petition has no merit.
I
The issue of ownership is irrelevant
to the case; filing of a complaint for
easement is a recognition of the
servient property owner’s rights
Petitioner points out that respondents’ property was previously owned by her mother. She
alleged that her uncle who was her mother’s caretaker of property fraudulently caused the titling
of the whole 1,500-square-meter property instead of just the 500-square-meter portion under
his name.57
These allegations are relevant only if we are determining the issue of the property’s ownership.
However, this is not an issue in this case. Petitioner does not question the ownership or the
registration of respondents’ title over the property. We are limited to the issue of petitioner’s
easement rights. On that matter, petitioner’s act of filing a Complaint for easement of right of
way is an acknowledgement that the property is owned by respondents. It is tantamount to a
waiver of whatever right or claim of ownership petitioner had over the property.
II
Petitioner failed to satisfy the Civil
Code requirements for the grant of
easement rights
The acts of petitioner’s predecessor-in-interest necessarily affect petitioner’s rights over the
property. One of the requirements for the grant of an easement of right of way is that the
isolation of the property is not due to the acts of the dominant estate’s owners.
As shown in the pleadings submitted to the trial court, petitioner and respondents had
conflicting claims on this issue. Petitioner alleged that it was her uncle, Dominador, who caused
the isolation of her property through his act of appropriating for himself the whole property
entrusted to him by her mother. Moreover, he closed the passage from petitioner’s property to
the public road.
On the other hand, respondents alleged that the isolation was due to the acts of petitioner’s
predecessor-in-interest. She allegedly subdivided the property in favor of her children, including
petitioner, without regard to the pending dispute over the property. If the latter is true, petitioner
could not claim any right to compulsory easement even if it was not she who caused the
property’s isolation. Petitioner is bound by her predecessor-in-interest’s act of causing the
isolation of her property.
Assuming, however, that petitioner or her mother did not cause the isolation of petitioner’s
property, petitioner still cannot be granted the easement of right of way over the proposed
portion of respondents’ property. This is because she failed to satisfy the requirements for an
easement of right of way under the Civil Code.
Articles 649 and 650 of the Civil Code provide the requisites of an easement of right of way:
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 these provisions, the following requisites need to be established before a person
becomes entitled to demand the compulsory easement of right of way:58
1. An immovable is surrounded by other immovables belonging to other persons, and is without
adequate outlet to a public highway;
2. Payment of proper indemnity by the owner of the surrounded immovable;
3. The isolation of the immovable is not due to its owner’s acts; and
4. The proposed easement of right of way is established at the point least prejudicial to the
servient estate, and insofar as consistent with this rule, where the distance of the dominant
estate to a public highway may be the shortest.
An easement of right of way is a real right. When an easement of right of way is granted to
another person, the rights of the property’s owner are limited.59 An owner may not exercise
some of his or her property rights for the benefit of the person who was granted the easement
of right of way. Hence, the burden of proof to show the existence of the above conditions is
imposed on the person who seeks the easement of right of way.60
We agree with the Regional Trial Court’s and the Court of Appeals’ findings that petitioner failed
to establish that there was no adequate outlet to the public highway and that the proposed
easement was the least prejudicial to respondents’ estate.
There is an adequate exit to a public highway.
This court explained in Dichoso, Jr. v. Marcos61 that the convenience of the dominant estate’s
owner is not the basis for granting an easement of right of way, especially if the owner’s needs
may be satisfied without imposing the easement.62 Thus:
Mere convenience for the dominant estate is not what is required by law as the basis of setting
up a compulsory easement. Even in the face of necessity, if it can be satisfied without imposing
the easement, the same should not be imposed.
....
Also in Floro v. Llenado, we refused to impose a right of way over petitioner’s property although
private respondent’s alternative route was admittedly inconvenient because he had to traverse
several ricelands and rice paddies belonging to different persons, not to mention that said
passage is impassable during the rainy season.
And in Ramos, Sr. v. Gatchalian Realty, Inc., this Court refused to grant the easement prayed
for even if petitioner had to pass through lots belonging to other owners, as temporary ingress
and egress, which lots were grassy, cogonal, and greatly inconvenient due to flood and mud
because such grant would run counter to the prevailing jurisprudence that mere convenience
for the dominant estate does not suffice to serve as basis for the easement.63 (Citations
omitted) Access to the public highway can be satisfied without imposing an easement on
respondents’ property.
The Ocular Inspection Report reads, in part:
Upon reaching the said place, pictures were taken in the presence of both parties and their
respective counsel. The undersigned observed that fronting the lot where the house of the
defendant is erected, is Brgy. Malibong Bata public road. The property of the plaintiff is located
at the back of defendant’s lot. Plaintiff, through her counsel, requested that the side portion of
defendants’ lot where the latter’s garage and a grotto are erected or a portion of defendants’
newly acquired adjacent lot be the right of way. This was objected to by Atty. Batalla arguing
that to grant the same is more prejudicial to the defendants considering that the improvements
thereon will be affected and that there is another existing public road which is nearer to the
plaintiff’s property. Atty. Sali admitted that there is another existing public road but the right of
way cannot be done as there is more or less four-meter wide irrigation before reaching the said
public road.
In order to confirm if there is indeed another existing public road which is nearer to plaintiff’s
property, the undersigned together with the above-mentioned court personnel and the parties
and their respective counsel, proceeded to the said place. True enough, there is a public road
also named Brgy. Malibong Bata public road, fronting plaintiff’s property. However, there is
more or less four-meter wide irrigation before reaching the said public road. It was also
confirmed that the two properties of the plaintiff are between the public road which is adjacent
to the irrigation. Atty. Sali manifested that they already requested before the officers of the
National Irrigation Administration (NIA) for the grant of the right of way but the same was
disapproved. Atty. Batalla pointed out that there are already some concrete bridges nearby the
properties of the plaintiff.64
Based on the Ocular Inspection Report, petitioner’s property had another outlet to the highway.
In between her property and the highway or road, however, is an irrigation canal, which can be
traversed by constructing a bridge, similar to what was done by the owners of the nearby
properties.
There is, therefore, no need to utilize respondents’ property to serve petitioner’s needs. Another
adequate exit exists. Petitioner can use this outlet to access the public roads.
The outlet referred to in the Ocular Inspection Report may be longer and more inconvenient to
petitioner because she will have to traverse other properties and construct a bridge over the
irrigation canal before she can reach the road. However, these reasons will not justify the
imposition of an easement on respondents’ property because her convenience is not the gauge
in determining whether to impose an easement of right of way over another’s property.65
Petitioner also failed to satisfy the requirement of "least prejudicial to the servient estate."
Article 650 of the Civil Code provides that in determining the existence of an easement of right
of way, the requirement of "least prejudic[e] to the servient estate" trumps "distance [between]
the dominant estate [and the] public highway." "Distance" is considered only insofar as it is
consistent to the requirement of "least prejudice."
This court had already affirmed the preferred status of the requirement of "least prejudice" over
distance of the dominant estate to the public highway.66 Thus, in Quimen, this court granted
the longer right of way over therein respondent’s property because the shorter route required
that a structure of strong materials needed to be demolished.67 This court said:
[T]he 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.
....
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.68 (Citation omitted)
Petitioner would have permanent structures — such as the garage, garden, and grotto already
installed on respondent’s property — destroyed to accommodate her preferred location for the
right of way.
The cost of having to destroy these structures, coupled with the fact that there is an available
outlet that can be utilized for the right of way, negates a claim that respondents’ property is the
point least prejudicial to the servient estate.
An easement is a limitation on the owner’s right to use his or her property for the benefit of
another. By imposing an easement on a property, its owner will have to forego using it for
whatever purpose he or she deems most beneficial. Least prejudice, therefore, is about the
suffering of the servient estate. Its value is not determined solely by the price of the property,
but also by the value of the owner’s foregone opportunity for use, resulting from the limitations
imposed by the easement.69
Imposing an easement on the part of respondents’ property for petitioner’s benefit would cost
respondents not only the value of the property but also the value of respondents’ opportunity
to use the property as a garage or a garden with a grotto.
Petitioner may use another outlet, which may provide longer access from her property to the
public highway, but is free from obstructions. The four-meter wide irrigation canal may be
traversed upon construction of a bridge. As noted by the trial court:
A neighboring land owner was able to construct a short concrete bridge wide enough even for
vehicles to pass through the irrigation canal from his property to the barangay road. The Court
sees no reason why plaintiff could not do the same and why it would not be allowed if carried
in accordance with the requirements set by NIA.70
Contrary to petitioner’s assertion, a reading of the August 17, 2005 National Irrigation
Administration Letter-Response71 to petitioner’s query regarding the possibility of constructing
a concrete bridge over the irrigation canal shows that petitioner was not really disallowed from
constructing a bridge. She was merely given certain conditions, thus:
Wherefore, this office could not negate such decision.72 However, request for grant of right of
way for the construction of bridge over an irrigation canal could be granted subject to the
following conditions[:] (1) that the landowner will shoulder the cost of construction subject to
the design and specifications approved by this office[;] (2) construction schedule must be
informed for inspection[;] (3) subject construction will not impede the free flow of irrigation
water[;] (4) distance between bridges will not hamper our mechanical equipment to move freely
within the area during clearing schedule; (5) active participation of the landowner in the clearing
and maintenance of the canal for continuous water flow; (6) any violation of the above
conditions will mean revocation of the permit and any damage to the canal structures will mean
restoration of the landowner at his own cost.73
It is true that an easement of right of way may be granted even if the construction of the bridge
was allowed. However, in determining if there is an adequate outlet or if the choice of easement
location is least prejudicial to the servient estate, this court cannot disregard the possibility of
constructing a bridge over the four-meter-wide canal. This court must consider all the
circumstances of the case in determining whether petitioner was able to show the existence of
all the conditions for the easement of right of way.
The Regional Trial Court and the Court of Appeals also considered the aspect of necessity for
an easement in determining petitioner’s rights.
The trial court found that there is still no necessity for an easement of right of way because
petitioner’s property is among the lots that are presently being tenanted by Dominador and
Filomena Ramos’ children.74 Petitioner is yet to use her property. The Complaint for easement
was found to have been filed merely "for future purposes."75 Thus, according to the Court of
Appeals, "[a]dmittedly, there is no immediate and imperative need for the construction of a right
of way as the dominant estate and its surrounding properties remain as agricultural lands under
tenancy."76
The aspect of necessity may not be specifically included in the requisites for the grant of
compulsory easement under the Civil Code. However, this goes into the question of "least
prejudice." An easement of right of way imposes a burden on a property and limits the property
owner’s use of that property. The limitation imposed on a property owner’s rights is aggravated
by an apparent lack of necessity for which his or her property will be burdened.
III
The case is not barred by prior
judgment
Respondents argued in their Comment that the case was already barred by prior judgment
because petitioner’s predecessor-in-interest and her siblings had already filed an action for
easement against respondents in 2004. This case, according to respondents, had already been
dismissed because of the existence of another public road or highway, which can be accessed
after the construction of a bridge over the irrigation canal.77
Respondents alleged that petitioner’s predecessor-in-interest not only subdivided her property
among her children, which included petitioner. Petitioner’s predecessor-in-interest also
converted her property from farmland to home lots. This, respondents argued, is prohibited
under Section 73(c) and 73(e), and Section 74 of the Comprehensive Agrarian Reform Law.78
Hence, the conversion was illegal, and this case still involves the predecessor-in-interest’s
property prior to its subdivision.79
In her Reply,80 petitioner argued that the property was not barred by prior judgment because
she was already the registered owner of her property before the complaint for easement was
filed by her mother and her siblings.
She was not a party to that case.81
Dismissal of a case on the ground of res judicata requires that a final judgment must have been
rendered between the same parties over the same subject matter and cause of action.82
Even if it is true that this and the alleged previous case involve the same issue, there can be
no res judicata if there is no identity of parties and/or subject matter. For purposes of
determining if there is identity of parties, two different persons may be considered as one
identity if they represent the same interest or cause.83

Based on the records, petitioner's certificate of title was issued in her name on April 12, 1999.84
If as admitted by respondents, the previous case for easement was filed in 2004 and petitioner
was not represented in the case, then there could have been no identity of the parties and
subject matter. Petitioner's interest could not have been represented by her predecessor-in-
interest or by her siblings because none of them were the owners of petitioner's property in
2004.
Respondents' insistence that the cases involve the same interests because the alleged
conversion of petitioner's predecessor-in-interest's property from farmland to home lots was
illegal involves the determination of whether there was such conversion. The determination of
whether there was conversion may be relevant to the issue of the validity of petitioner's title but
is not relevant to the issue of the existence of petitioner's easement rights. This determination
needs proper reception and assessment of evidence, which is not the province of this court.
That issue should be threshed out in a separate case directly attacking petitioner's certificate
of title.
WHEREFORE, the Court of Appeals Decision promulgated on August 12, 2010 and its
Resolution promulgated on October 28, 2010 are AFFIRMED.
SO ORDERED.
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.
Esteban M. Mendoza for petitioner.
Oscar Gozos for private respondents.
FERNAN, C.J.:
Presented for resolution in the instant petition for review is the not-so-usual question of whether
or not petitioner is entitled to a widening of an already existing easement of right-of-way. Both
the trial court and the Appellate Court ruled that petitioner is not so entitled, hence the recourse
to this Court. We reverse.
The facts are undisputed.
Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta Magsino Viuda
de Sagun are the owners of two adjacent estates situated in Buco, Talisay, Batangas. **
Petitioner owns the dominant estate which has an area of 2,590 square meters and bounded
on the North by Eusebio de Sagun and Mamerto Magsino, on the south by Taal Lake, on the
East by Felino Matienzo and on the West by Pedro Matienzo. Private respondents co-own the
405-square-meter servient estate which is bounded on the North by the National Highway
(Laurel-Talisay Highway), on the South by Tomas Encarnacion, on the East by Mamerto
Magsino and on the West by Felipe de Sagun. In other words, the servient estate stands
between the dominant estate and the national road.
Prior to 1960, when the servient estate was not yet enclosed with a concrete fence, persons
going to the national highway just crossed the servient estate at no particular point. However,
in 1960 when private respondents constructed a fence around the servient estate, a roadpath
measuring 25 meters long and about a meter wide was constituted to provide access to the
highway. One-half meter width of the path was taken from the servient estate and the other
one-half meter portion was taken from another lot owned by Mamerto Magsino. No
compensation was asked and non was given for the portions constituting the pathway.1
It was also about that time that petitioner started his plant nursery business on his land where
he also had his abode. He would use said pathway as passage to the highway for his family
and for his customers.
Petitioner's plant nursery business through sheer hard work flourished and with that, it became
more and more difficult for petitioner to haul the plants and garden soil to and from the nursery
and the highway with the use of pushcarts. In January, 1984, petitioner was able to buy an
owner-type jeep which he could use for transporting his plants. However, that jeep could not
pass through the roadpath and so he approached the servient estate owners (Aniceta Vda. de
Sagun and Elena Romero Vda. de Sagun) and requested that they sell to him one and one-
half (1 1/2) meters of their property to be added to the existing pathway so as to allow passage
for his jeepney. To his utter consternation, his request was turned down by the two widows and
further attempts at negotiation proved futile.
Petitioner then instituted an action before the Regional Trial Court of Batangas, Branch 6
(Tanauan) to seek the issuance of a writ of easement of a right of way over an additional width
of at least two (2) meters over the De Saguns' 405-square-meter parcel of land.2
During the trial, the attention of the lower court was called to the existence of another exit to
the highway, only eighty (80) meters away from the dominant estate. On December 2, 1985,
the lower court rendered judgment dismissing petitioner's complaint. It ruled:
It is clear, therefore, that plaintiff at present has two outlets to the highway: one, through the
defendants' land on a one meter wide passageway, which is bounded on both sides by concrete
walls and second, through the dried river bed eighty meters away. The plaintiff has an adequate
outlet to the highway through the dried river bed where his jeep could pass.
The reasons given for his claim that the one-meter passageway through defendants' land be
widened to two and one-half meters to allow the passage of his jeep, destroying in the process
one of the concrete fences and decreasing defendants' already small parcel to only about 332.5
square meters, just because it is nearer to the highway by 25 meters compared to the second
access of 80 meters or a difference of only 65 meters and that passage through defendants'
land is more convenient for his (plaintiffs) business and family use are not among the conditions
specified by Article 649 of the Civil Code to entitle the plaintiff to a right of way for the passage
of his jeep through defendant's land.3
On appeal, the Court of Appeals affirmed the decision of the trial court on January 28, 1987
and rejected petitioner's claim for an additional easement.
In sustaining the trial court, the Court of Appeals opined that the necessity interposed by
petitioner was not compelling enough to justify interference with the property rights of private
respondents. The Appellate Court took into consideration the presence of a dried river bed only
eighty (80) meters away from the dominant estate and conjectured that petitioner might have
actually driven his jeep through the river bed in order to get to the highway, and that the only
reason why he wanted a wider easement through the De Sagun's estate was that it was more
convenient for his business and family needs.
After evaluating the evidence presented in the case, the Court finds that petitioner has
sufficiently established his claim for an additional easement of right of way, contrary to the
conclusions of the courts a quo.
While there is a dried river bed less than 100 meters from the dominant tenement, that access
is grossly inadequate.1âwphi1 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.
Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.
G.R. No. 158141 July 11, 2006
FAUSTO R. PREYSLER, JR., petitioner,
vs.
COURT OF APPEALS and FAR EAST ENTERPRISES, INC., respondents.
DECISION
QUISUMBING, J.:
This petition for review assails the Decision1 dated January 20, 2003 and Resolution2 dated
May 20, 2003 of the Court of Appeals in CA-G.R. SP No. 52946. The Court of Appeals lifted
the amended writ of preliminary injunction dated December 29, 1998 issued by the Regional
Trial Court, Branch 14 of Nasugbu, Batangas in Civil Case No. 345 and reinstated the original
writ dated December 12, 1996.
The antecedent facts are as follows:
Private respondent Far East Enterprises, Inc., owns Tali Beach Subdivision. Petitioner Fausto
Preysler, Jr. and his wife owned lots therein and also two parcels of land adjacent to the
subdivision. These two parcels were bounded on the North and West by the China Sea and on
the East and South by the subdivision. To gain access to the two parcels petitioner has to pass
through private respondent's subdivision. Petitioner offered P10,000 for the easement of right
of way but private respondent refused it for being grossly inadequate. Private respondent then
barricaded the front gate of petitioner's property to prevent petitioner and his family from using
the subdivision roads to access said parcels.
The petitioner filed, with the Regional Trial Court of Nasugbu, Batangas, a Complaint for Right
of Way with prayer for preliminary prohibitive injunction against private respondent. After due
hearing, the trial court, in an Order dated November 5, 1996, held that barricading the property
to prevent the petitioner from entering it deprived him of his ownership rights and caused
irreparable damage and injuries. It ordered herein private respondent:
1) To remove or cause or allow the removal of the barricade (six concrete posts) installed by it
on the front gate of the plaintiffs' properties fronting Sea Cliff Drive;
2) To cease, desist and refrain from obstructing or hindering plaintiffs' entry into and exit from
their subject properties and/or their free passage over Sea Cliff Drive from and to the public
highway near the gate of the Tali Beach Subdivision pending termination of this litigation on
the merits and/or unless a contrary order is issued henceforth.3
Accordingly, the writ of preliminary injunction was issued on December 12, 1996.
On July 8, 1998, petitioner used the subdivision road to transport heavy equipment and
construction materials to develop his property. Consequently, private respondent moved to
dissolve the writ claiming that the petitioner violated its right to peaceful possession and
occupation of Tali Beach Subdivision when petitioner brought in heavy equipment and
construction materials. Private respondent maintained that the damages that may be caused
to it far outweigh the alleged damages sought to be prevented by the petitioner. It alleged that
there is an alternate route available to petitioner, particularly the barangay road leading to
Balaytigue and the Calabarzon Road.
For his part, the petitioner moved to clarify the December 12, 1996 writ and asked the court to
clearly define the action required of private respondent to avert further damage and
inconvenience to petitioner. Petitioner prayed that his contractors, visitors, and other
representatives be allowed access and persons he has authorized be allowed to install power
lines over private respondent's property.
On December 29, 1998, the trial court issued a Joint Resolution amending the order in the
original writ to read as follows:
1. To remove or cause or allow the removal of the barricade (six concrete posts) installed by it
on the front gate of the plaintiffs' properties fronting Sea Cliff Drive.
2. To cease, desist and refrain from obstructing or hindering plaintiffs' (including plaintiffs'
visitors, guests, contractors, and other persons authorized by or acting for and/or under said
plaintiffs) entry into and exit from their subject properties and/or their free passage over Sea
Cliff Drive and other connecting subdivision roads, from and to the public highway near the
gate of the Tali Beach Subdivision, pending the termination of this litigation on the merits and/or
unless a contrary order is issued henceforth.
3. To cease, desist and refrain from hindering or obstructing plaintiffs' contractors, guests,
visitors and other authorized persons to bring along with them their motor vehicles, equipments,
materials, supplies, machineries and other items necessary for the needs of the plaintiffs'
properties.
4. To cease, desist and refrain from hindering or obstructing the plaintiffs and/or persons
authorized by them, to install electric power lines over the Tali Beach Subdivision for plaintiffs'
electric power requirements.4
Private respondent filed a petition for certiorari with the Court of Appeals, which set aside the
amended writ dated December 29, 1998 and reinstated the original writ dated December 12,
1996 with modification as to the amount of the bond. The petitioner moved for reconsideration,
but the same was denied.
Petitioner now comes before us claiming that the Court of Appeals:
I
… [GRAVELY] ERRED IN FINDING AND CONCLUDING THAT THE TRIAL COURT
COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING: (1) THE JOINT RESOLUTION
DATED 29 DECEMBER 1998, … (2) THE AMENDED WRIT OF PRELIMINARY INJUNCTION
(MANDATORY AND PROHIBITORY) OF EVEN DATE … AND (3) THE ORDER DATED 8
MARCH 1999 DENYING THE MOTION FOR RECONSIDERATION TO RECONSIDER AND
SET ASIDE THE JOINT RESOLUTION.…
II
… OVERSTEPPED THE BOUNDARY OF ITS AUTHORITY AND JURISDICTION IN
RESOLVING FACTUAL MATTERS, HOWEVER, ERRONEOUS, COULD NOT BE
REVIEWED UNDER THE EXTRAORDINARY WRIT OF CERTIORARI BUT BY ORDINARY
APPEAL, INSTEAD OF CONFINING ITSELF TO DETERMINE WHETHER OR NOT THE
TRIAL COURT COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING THE JOINT
RESOLUTION, … THE AMENDED WRIT OF PRELIMINARY INJUNCTION (MANDATORY
AND PROHIBITORY), … AND THE ORDER DATED 6 MARCH 1996 DENYING THE MOTION
TO RECONSIDER THE JOINT RESOLUTION….
III
… EXCEEDED ITS JURISDICTION AND AUTHORITY IN SETTING ASIDE THE JOINT
RESOLUTION, … LIFTING THE AMENDED WRIT OF PRELIMINARY INJUNCTION DATED
29 DECEMBER 1998, … AND RESTRICTING OR LIMITING PASSAGE OVER THE TALI
BEACH SUBDIVISION ROADS TO INGRESS AND EGRESS OF PETITIONER AND
MEMBERS OF THE LATTER'S HOUSEHOLD IN UTTER VIOLATION OF THE LAW ON
EASEMENT, IN GENERAL, AND LEGAL EASEMENT OF RIGHT OF WAY IN PARTICULAR.5
Simply, the issue is whether there was a legal basis for the issuance of the amended writ of
injunction. Likewise, we need to resolve whether the right of passage allowed in the
uncontested original writ applies not only to the petitioner and his household, but also to his
visitors, contractors, construction workers, authorized persons, heavy equipment machinery,
and construction materials as well as the installation of power lines.
Petitioner contends that inherent in the right of way under Article 6496 of the New Civil Code
is the right to cultivate and develop the property, which is an attribute of ownership provided
under Article 428.7 According to petitioner, the passage of heavy equipment and construction
materials through the subdivision is granted by Article 656.8 Petitioner adds that he was not
seeking the right of way only for occasional visits to his property but also to develop, use and
enjoy it.
Private respondent claims that what was granted in the original writ was not the easement of
right of way but only the maintenance of the status quo. It maintains that from the very
beginning, petitioner and his household were allowed into the subdivision only because
petitioner owned several lots in the subdivision. Hence, according to private respondent, the
Court of Appeals properly dissolved the amended writ as the status quo protected by the
original writ did not include the passage of construction workers in petitioner's property outside
the subdivision. Private respondent stresses that at the time the original writ was applied for
there was no construction work yet.
Private respondent argues that its recognition of the original writ should not be construed as
admitting that petitioner had a right of way; and with no easement of right of way, petitioner
cannot claim other rights under the law on easement. It further contends that acts prohibited
and allowed under the amended writ amounted to a premature adjudication on the merits of
the main case on whether or not petitioner has a right of way, which is still pending before the
trial court.
Prefatorily, we note that what was granted by the trial court was the preliminary injunction, and
that the main case for right of way has not yet been settled. We have in previous cases9 said
that the objective of a writ of preliminary injunction is to preserve the status quo until the merits
of the case can be fully heard. Status quo is the last actual, peaceable and uncontested
situation which precedes a controversy.10 The Court of Appeals was correct in its findings that
the last actual, peaceful and uncontested situation that preceded the controversy was solely
the access of petitioner and his household to his property outside the subdivision for visits and
inspections. At the time the writ was applied for in 1995, there was still no construction going
on in the property. It was merely raw land. The use of the subdivision roads for ingress and
egress of construction workers, heavy equipment, delivery of construction materials, and
installation of power lines, are clearly not part of the status quo in the original writ. Along this
line, the Court of Appeals properly set aside the amended writ and reinstated the original writ.
However, under Article 656 of the New Civil Code, if the right of way is indispensable for the
construction, repair, improvement, alteration or beautification of a building, a temporary
easement is granted after payment of indemnity for the damage caused to the servient estate.
In our view, however, "indispensable" in this instance is not to be construed literally. Great
inconvenience is sufficient.11 In the present case, the trial court found that irrespective of which
route petitioner used in gaining access to his property, he has to pass private respondent's
subdivision. Thus we agree that petitioner may be granted a temporary easement. This
temporary easement in the original writ differs from the permanent easement of right of way
now being tried in the main case.
The law provides that temporary easement is allowed only after the payment of the proper
indemnity. As there are neither sufficient allegations nor established facts in the record to help
this Court determine the proper amount of indemnity, it is best to remand the case to the trial
court for such determination.
Additionally, we find that the installation of electric power lines is a permanent easement not
covered by Article 656. Article 656 deals only with the temporary easement of passage. Neither
can installation of electric power lines be subject to a preliminary injunction for it is not part of
the status quo. Besides, more damage would be done to both parties if the power lines are
installed only to be removed later upon a contrary judgment of the court in the main case.
WHEREFORE, the petition is PARTIALLY GRANTED.
We hereby order (a) private respondent to allow the right of passage thru the subdivision by
the petitioner's visitors and guests, contractors, construction workers, heavy equipment
vehicles, and delivery construction materials; and (b) petitioner to pay private respondent the
indemnity therefor to be determined by the trial court. The case is hereby REMANDED to the
trial court for the determination of the proper amount of indemnity for the temporary easement
under Article 649.

No pronouncement as to costs.

SO ORDERED.

Carpio, Carpio-Morales, Tinga, Velasco, Jr., J.J., concur.

G.R. No. 182567 July 13, 2009
GUILLERMO M. TELMO, Petitioner,
vs.
LUCIANO M. BUSTAMANTE, Respondent.
DECISION
NACHURA, J.:
For our consideration is a Petition1 for Review on Certiorari under Rule 45 of the Rules of Court
in relation to Section 27, paragraph 3 of the Ombudsman Act of 1989 (Republic Act No. 6770).
Subject of the Petition is the Decision2 dated October 13, 2005 and the Order3 dated March
17, 2006 of the Office of the Deputy Ombudsman for Luzon.
This case arose from the Verified Complaint4 filed by respondent Luciano M. Bustamante
before the Office of the Deputy Ombudsman for Luzon against petitioner Guillermo Telmo,
Municipal Engineer of Naic, Cavite, Danilo Consumo, Barangay (Brgy.) Chairman, Brgy.
Halang, Naic, Cavite, and Elizalde Telmo, a private individual.
The complaint alleged that respondent is a co-owner of a real property of 616 square meters
in Brgy. Halang, Naic, Cavite, known as Lot 952-A and covered by Transfer Certificate of Title
No. T-957643 of the Register of Deeds of Cavite. Petitioner and Elizalde Telmo (Telmos) are
the owners of the two (2) parcels of land denominated as Lot 952-B and 952-C, respectively,
located at the back of respondent’s lot. When his lot was transgressed by the construction of
the Noveleta-Naic-Tagaytay Road, respondent offered for sale the remaining lot to the Telmos.
The latter refused because they said they would have no use for it, the remaining portion being
covered by the road’s 10-meter easement.
The complaint further alleged that, on May 8, 2005, respondent caused the resurvey of Lot
952-A in the presence of the Telmos. The resurvey showed that the Telmos encroached upon
respondent’s lot. Petitioner then uttered, "Hangga’t ako ang municipal engineer ng Naic, Cavite,
hindi kayo makakapagtayo ng anuman sa lupa n’yo; hindi ko kayo bibigyan ng building permit."
On May 10, 2005, respondent put up concrete poles on his lot. However, around 7:00 p.m. of
the same day, the Telmos and their men allegedly destroyed the concrete poles. The following
day, respondent’s relatives went to Brgy. Chairman Consumo to report the destruction of the
concrete poles. Consumo told them that he would not record the same, because he was
present when the incident occurred. Consumo never recorded the incident in the barangay
blotter.
Respondent complained that he and his co-owners did not receive any just compensation from
the government when it took a portion of their property for the construction of the Noveleta-
Naic-Tagaytay Road. Worse, they could not enjoy the use of the remaining part of their lot due
to the abusive, Illegal, and unjust acts of the Telmos and Consumo. Respondent charged the
latter criminally—for violation of Article 3125 of the Revised Penal Code and Section 3(e)6 of
Republic Act No. 30197— and administratively—for violation of Section 4 (a)8, (b)9, (c)10, and
(e)11 of Republic Act No. 6713.12
In his Counter-Affidavit,13 petitioner denied having uttered the words attributed to him by
respondent, and claimed that he only performed his official duties in requiring an application
for a building permit before any structure can be erected on government property. He said that
respondent insisted on enclosing with barbed wire and concrete posts the lot that already
belonged to the national government, which had now been converted into a national road. He
also alleged that if he allowed the enclosures erected by the respondent, other residents would
be denied ingress to and egress from their own properties.
In his own counter-affidavit, Consumo denied collusion with petitioner in not recording in the
barangay blotter the subject incident. He explained that on May 10, 2005 at around 5:00 p.m.,
he was summoned by petitioner to intercede, because the respondent and his men were
fencing the subject property. Consumo obliged, personally saw the fence being built, and
observed that even the trucks owned by petitioner were enclosed therein. When he asked
respondent if he had the necessary permit and the proper barangay clearance to do so,
respondent’s lawyer, Atty. San Gaspar, replied that there was no need for the permit and
clearance since respondent was just fencing his own property. Thus, Consumo could not
prevent the ongoing fencing, but told respondent and company to wait for petitioner to decide
the matter.
Consumo further alleged that after putting up the fence, respondent and his companions left
without waiting for the arrival of petitioner. When petitioner arrived, he explained to the people
present that the property enclosed by respondent is owned by the government and that no one
is allowed to construct any fence without a permit from him, as the Municipal Engineer, or from
any building official of the local government of Naic, Cavite. Consumo said that the residents
affected by the fence constructed by respondent were the ones who pulled out the concrete
posts in order to provide access to the national road. These residents included the petitioner,
whose trucks used for delivering sand and hollow blocks were enclosed and also denied
access.
In his Counter-Affidavit,14 Elizalde Telmo denied having encroached, occupied or taken
possession of respondent’s property. He claimed that, on May 10, 2005, he was merely an
onlooker to the altercation between petitioner and respondent. He said that petitioner, his
brother, insisted that respondent could not enclose the property in question unless the latter
obtains a building permit from the Office of the Municipal Engineer/Building Official, since it
appeared that the subject property was no longer a property of respondent but was converted
into government property by virtue of the 30-meter road set-back imposed by the Zoning
Ordinance of the Municipality of Naic, Cavite. Elizalde Telmo stated that he did not offer any
resistance to the fencing of the property in question. He observed, though, that when they
learned that petitioner was arriving at the place, respondent and his companions just left the
vicinity.
Later, petitioner and respondent filed their respective position papers15 upon the directive of
the Graft Investigating and Prosecuting Officer. Their position papers reiterated the allegations
made in their respective affidavits earlier submitted.
In the Decision16 dated October 13, 2005, the Office of the Deputy Ombudsman for Luzon
found petitioner and Danilo Consumo administratively liable, but dismissed the charge against
Elizalde Telmo for lack of jurisdiction over his person, he being a private individual. The
dispositive portion of the Decision states—
WHEREFORE, premises considered, the undersigned investigator respectfully recommends
the following, to wit:
(1) That the administrative complaint against respondent Elizalde Telmo be DISMISSED for
lack of jurisdiction;
(2) That respondent Guillermo Telmo be meted the PENALTY OF FINE EQUIVALENT TO SIX
(6) MONTHS SALARY for violation of Section 4 of Republic Act No. 6713; and
(3) That respondent Danilo Consumo be meted the PENALTY OF FINE EQUIVALENT TO
THREE (3) MONTHS HONORARIA for violation of Section 4 of Republic Act No. 6713.
SO DECIDED.17
Petitioner filed a Motion for Reconsideration,18 wherein he elaborated that he just performed
his official duties when he summarily removed the concrete posts erected by respondent to
enclose the property.
In the Order19 dated March 17, 2006, the Office of the Deputy Ombudsman for Luzon denied
the Motion for Reconsideration for lack of merit.
Hence, this petition anchored on the following grounds:
A. THE HONORABLE DEPUTY OMBUDSMAN FOR LUZON SERIOUSLY ERRED WHEN HE
DECLARED THAT THERE WAS NO VALID TAKING OF RESPONDENT’S LOT BY MEANS
OF EXPROPRIATION.
B. THE HONORABLE DEPUTY OMBUDSMAN FOR LUZON SERIOUSLY ERRED WHEN HE
DECLARED THAT PETITIONER SHOULD BE AUTHORIZED BY THE MUNICIPAL MAYOR
OR BY THE COURT TO ABATE PUBLIC NUISANCE OR NUISANCE PER SE.
C. THE HONORABLE DEPUTY OMBUDSMAN FOR LUZON ERRED WHEN HE METED THE
PENALTY OF FINE EQUIVALENT TO SIX (6) MONTHS SALARY FOR VIOLATION OF
SECTION 4 OF REPUBLIC ACT NO. 6713.20
In essence, petitioner contends that the property claimed and enclosed with concrete posts by
respondent was validly taken by the National Government through its power of eminent domain,
pursuant to Executive Order No. 113, as amended by Executive Order No. 253, creating the
Noveleta-Naic-Tagaytay Road. In this context, petitioner contends that the concrete posts
erected by respondent were a public nuisance under Article 694 (4)21 of the Civil Code, more
particularly a nuisance per se, which may be summarily abated under Article 699 (3)22 of the
same Code. Petitioner says that as the Municipal Engineer, he is also the Building Official of
Naic, Cavite; and thus, it was well within his authority, pursuant to Section 214, paragraph two
(2) of the National Building Code, to order the removal of the concrete posts. Petitioner likewise
claims that Section 23 of Revised Philippine Highway Act (Presidential Decree No. 17)23
mandated him to remove respondent’s concrete posts. Petitioner concludes that since he
merely performed his official duties in removing the concrete posts erected by petitioner from
the property, which is already owned by the government, he must be absolved of any
administrative liability.
Instead of filing his comment on the petition, respondent manifested through counsel that he is
no longer interested in pursuing this case, submitting therewith his Affidavit of Desistance24
dated December 5, 2007. Respondent alleged in the affidavit that the administrative charges
he lodged against petitioner were brought about by a misunderstanding between them, which
differences have already been settled. Consequently, this case should now be dismissed.
We disagree.
The desistance of the complainant does not necessarily result in the dismissal of the
administrative complaint because the Court attaches no persuasive value to a desistance,
especially when executed as an afterthought.25 It should be remembered that the issue in an
administrative case is not whether the complaint states a cause of action against the
respondent, but whether the public officials have breached the norms and standards of the
public service.26 Considering that petitioner admitted in his pleadings that he summarily
removed the concrete posts erected by respondent, allegedly within the parameters of his
authority as Municipal Engineer of Naic, Cavite, it is only proper that this case be decided on
its merits rather than on the basis of the desistance of respondent.
It cannot be denied that respondent’s property was taken by the National Government thru the
Department of Public Works and Highways when it constructed the Noveleta-Naic-Tagaytay
Road. What is not clear from the records of this case is whether respondent’s property was
taken as part of the national road itself or only as part of the right-of-way easement therefor.
We observe that the re-survey plan27 of his property attached by respondent to his complaint
and the survey plan28 of the Noveleta-Naic-Tagaytay Road submitted by petitioner appear to
be different. Nevertheless, it is evident from the sketch plans that respondent could not enclose
his property because it is now being used by the National Government. Therefore, whatever
cause of action respondent may have in his claim for just compensation for the taking of his
property, the same should be lodged against the National Government.
While it is settled that respondent does not have the legal right to enclose the property, we
should now determine whether petitioner indeed performed his official functions properly.
First. Petitioner claims that his act of summarily removing respondent’s concrete posts was
authorized under the National Building Code (Presidential Decree No. 1096). The provision he
cites correctly pertains to Section 215, which reads—
Sec. 215. Abatement of Dangerous Buildings.—When any building or structure is found or
declared to be dangerous or ruinous, the Building Official shall order its repair, vacation or
demolition depending upon the decree of danger to life, health, or safety. This is without
prejudice to further action that may be taken under the provisions of Articles 482 and 694 to
707 of the Civil Code of the Philippines.1avvphi1
To better understand this provision, we refer to Section 214 of the same law, which defines
what are dangerous and ruinous buildings or structures susceptible of abatement. It provides—
Sec. 214. Dangerous and Ruinous Buildings or Structures. Dangerous buildings are those
which are herein declared as such or are structurally unsafe or not provided with safe egress,
or which constitute a fire hazard, or are otherwise dangerous to human life, or which in relation
to existing use, constitute a hazard to safety or health or public welfare because of inadequate
maintenance, dilapidation, obsolescence, or abandonment, or which otherwise contribute to
the pollution of the site or the community to an intolerable degree.1avvphi1
A careful reading of the foregoing provisions would readily show that they do not apply to the
respondent’s situation. Nowhere was it shown that the concrete posts put up by respondent in
what he believed was his and his co-owners’ property were ever declared dangerous or
ruinous, such that they can be summarily demolished by petitioner.
What is more, it appears that the concrete posts do not even fall within the scope of the
provisions of the National Building Code. The Code does not expressly define the word
"building." However, we find helpful the dictionary definition of the word "building," viz:
[A] constructed edifice designed usually covered by a roof and more or less completely
enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other
useful structure – distinguished from structures not designed for occupancy (as fences or
monuments) and from structures not intended for use in one place (as boats or trailers) even
though subject to occupancy.29
The provisions of the National Building Code would confirm that "building" as used therein
conforms to this definition. Thus, applying the statutory construction principle of ejusdem
generic,30 the word "structure" should be construed in the context of the definition of the word
"building." The concrete posts put up by respondent on the property are not properly covered
by the definition of the word "building" nor is it embraced in the corresponding interpretation of
the word "structure."
Second. Petitioner contends that respondent’s concrete posts were in the nature of a nuisance
per se, which may be the subject of summary abatement sans any judicial proceedings. Again,
we disagree.
A nuisance per se is that which affects the immediate safety of persons and property and may
be summarily abated under the undefined law of necessity.31 Evidently, the concrete posts
summarily removed by petitioner did not at all pose a hazard to the safety of persons and
properties, which would have necessitated immediate and summary abatement. What they did,
at most, was to pose an inconvenience to the public by blocking the free passage of people to
and from the national road.
Third. Petitioner likewise maintains that his authority to perform the assailed official act sprang
from Section 23 of the Revised Philippine Highway Act. He posits that this provision is
particularly implemented by Department Order No. 52,32 Series of 2003 of the Department of
Public Works and Highways for the Removal of Obstructions and Prohibited Uses within the
Right-of-Way of National Roads.
Department Order No. 52 directs all District Engineers to immediately remove or cause the
removal of all obstructions and prohibited uses within the right-of-way of all national roads in
their respective jurisdictions. These obstructions and prohibited uses include, among others,
all kinds of private, temporary and permanent structures, such as buildings, houses, shanties,
stores, shops, stalls, sheds, posts, canopies, billboards, signages, advertisements, fences,
walls, railings, basketball courts, garbage receptacles, and the like. The Department Order
requires the District Engineers to issue notices to the concerned persons to remove the
obstructions and prohibited uses within the right-of-way, and shall follow through prompt
compliance with these notices and full implementation of the Order. It further provides that
appropriate sanctions will be taken against those who fail to comply with its provisions.
Gauging the action of petitioner based on the guidelines set by Department Order No. 52, from
which he claims his authority, we cannot but conclude that petitioner went beyond the scope
of his official power because it is the concerned District Engineer of the Department of Public
Works and Highways who should have ordered respondent to remove the concrete posts. The
petitioner failed to show that he was duly authorized by the District Engineer to implement the
Department Order in Naic, Cavite. More importantly, even assuming that petitioner had been
duly authorized to order the removal of the concrete posts of respondent, he failed to prove
that he issued the required notice to respondent to remove the said structures before he did
the removal himself. Note that petitioner, in fact, admitted in his pleadings that he summarily
removed the said posts.
The Revised Philippine Highway Act and Department Order No. 52 do not expressly provide
for the administrative sanction to be taken against public officials violating their provisions.
Hence, we must refer to the Uniform Rules on Administrative Cases in the Civil Service. We
believe that the administrative offense committed by petitioner through the questioned act was
only Discourtesy in the Course of Official Duties, which is a light offense under Rule IV, Section
52 of the said Rules. The penalties imposable for such an offense are a reprimand for the first
offense, a suspension from 1 day to 30 days for the second offense, and dismissal from public
service for the third offense. Since this appears to be petitioner’s first offense, his action
warrants only a REPRIMAND.
WHEREFORE, the Decision dated October 13, 2005 and the Order dated March 17, 2006 of
the Office of the Deputy Ombudsman for Luzon finding petitioner Guillermo M. Telmo,
Municipal Engineer of Naic, Cavite, administratively culpable for violation of Section 4 of
Republic Act No. 6713, imposing upon him the penalty of fine equivalent to his six 6-month
salary, must be MODIFIED. Guillermo M. Telmo is instead found administratively guilty of
DISCOURTESY IN THE COURSE OF OFFICIAL DUTIES and is hereby REPRIMANDED.
Costs against petitioner.
SO ORDERED.
[ G.R. NO. 166744, November 02, 2006 ]
AC ENTERPRISES, INC., PETITIONER, VS. FRABELLE PROPERTIES CORPORATION,
RESPONDENT.
DECISION
CALLEJO, SR., J.:
Before the Court is a petition for review on certiorari of the Decision[1] of the Court of Appeals
(CA) in CA G.R. SP No. 82166, affirming the Order[2] of the Regional Trial Court (RTC) of
Malabon City in Civil Case No. 3742-MH, which denied the Motion to Dismiss of petitioner AC
Enterprises, Inc. (ACEI), as well as the Resolution of the CA denying the motion for
reconsideration thereof.
Petitioner, a corporation duly organized under domestic laws doing business in the Philippines,
owns the 10-storey Feliza Building located along Herrera Street, Legaspi Village, Makati City.
The building was subdivided into commercial/office units which were leased to private persons
and entities. There are 36 blowers from 18 air-cooled type airconditioning units in the building,
four blowers on each floor, from the 2nd to the 10th floors. The blowers are aesthetically
covered by vertical concrete type baffles.
Respondent Frabelle Properties Corporation (FPC), formerly FTL & Sons Development
Corporation,[3] is the developer of Frabella I Condominium (Frabella I), a 29-storey
commercial/residential condominium located at 109 Rada Street, Legaspi Village, Makati City.
It owned some units in the condominium which it leased to its tenants. The building is managed
by the Frabella I Condominium Corporation (FCC).
Rada and Herrera streets lie parallel to each other such that Feliza Building is situated at the
back of Frabella I. Feliza Building is at the back of Frabella I and is separated by Rodriguez
Street, a two-lane road approximately 12 meters wide[4] The street is bounded by the Thailand
Embassy on the side of the street of Frabella I. The exhaust of the blowers from the
airconditioning units at the Feliza Building were directed towards the rear of Frabella I.
On April 11, 1995, respondent wrote petitioner demanding that the latter abate the daily
continuous, intense and ''unbearable noise" and the hot air blast coming from the 36 blowers
in the Feliza Building. Petitioner rejected the demand in a letter dated May 15, 1995.
Respondent reiterated its demand for ACEI to abate the nuisance in a letter dated June 6,
1995.
On June 29, 1995, respondent requested that the 36 blowers of Feliza Building be tested by
the NCR Environmental Management Bureau (EMB) of the Department of Environment and
Natural Resources (DENR). On August 11, 1995, it received a report from the EMB that the
noise generated by the blowers of Feliza Building is beyond the legal allowable level under
Section 78(b) of Presidential Decree (P.D.) No. 984, as amended. FPC had the blowers tested
anew by the EMB on December 8, 1995 and July 1, 1996 with the same results. Despite
repeated demands, petitioner refused to act on the matter.
On August 14, 2000, respondent again wrote petitioner, demanding that it abate the nuisance.
Petitioner ignored the letter anew. Respondent then had the blowers tested again by the EMB
with same results as evidenced by its report dated August 29, 2000 and November 4, 2000.
On March 11, 2001, Frabelle I Condominum Corporation, through counsel, Ang & Associates,
as complainant, filed a complaint against petitioner with the Pollution Adjudication Board (PAB)
for the abatement of noise and/or air pollution and damages with a plea for injunctive relief.
The complainant alleged therein that it managed the Frabella 1 and that its members own units
in the condominium. It alleged, inter alia, that:
Feliza Building's airconditioning system is served by some 36 blowers, installed 4 blowers to
each floor, all located on the same sidedirectly facing Frabella I.
Everytime the Feliza Building's airconditioning system is turned on, all or a good number of the
36 blowers operate at the same time. As a direct result of the operation of the blowers,
unbearable hot air is generated and blown towards Frabella I.
Apart from the hot air, the blowers also generate a continuous, deafening, intolerable and
irritating, vibrating noise which makes normal conversation across the street and at the Frabella
I difficult if not impossible.
As a consequence of such hot air, vibrating and intolerable noise, the occupants of Frabella I
have been, and still are, prevented from enjoying peaceful and comfortable use of their property
thereby forcing them to vacate and/or transfer elsewhere.
Such intolerable noise, hot air, and vibration constitute noise and/or air pollution violative of
P.D. 984, the Clean Air Act and other related environmental laws.
In all good faith without any desire to cause any unnecessary inconvenience or trouble, the
complainant, for the last several years, has written and made numerous contacts with the
respondent complaining about this pollution, even soliciting the help and intercession of the
Makati Commercial Estate Association, Inc. (MACEA) and the Metro Manila Development
Authority (MMDA) to try to settle the matter amicably.
On the other hand, the DENR, over a span of several years, has conducted several tests. As
shown by the results, the noise and vibration generated by the Feliza Building blowers exceeds
the DENR and Local Government ambient noise standards hence, it undoubtedly constitutes
pollution.[5]
The complainant prayed that judgment be rendered in its favor, thus:
WHEREFORE, it is respectfully prayed that after notice and hearing, a Decision be rendered
in favor of complainant and against the respondent:
Declaring the intolerable noise, hot air and vibration generated by the Feliza Building blowers
as a noise and/or air pollution and ordering the respondent to abate the same and in case of
failure to do so, that the establishment be closed or ordered to cease operations.
After arbitration, ordering the respondent to indemnify the complaint for actual damages at not
less thanP5,000,000.00 and to reimburse it for attorney's fees and expenses of litigation at not
less than P400,000.00.
Condemning the respondent to pay the corresponding fines and other administrative penalties
for each day of continuing pollution.
Complainant prays for other relief just and equitable in the premises.[6]
While the case was pending, respondent, through its Vice-President, wrote Dr. Maria Leonor
B. Soledad, City Health Officer of Makati City, requesting her intervention to order petitioner to
abate the noise and hot air coming from the blowers of the Feliza Building. On March 5, 2002,
Dr. Soledad replied that a panel must be formed to settle the matter.
In a letter dated March 7, 2002, respondent requested Makati City Mayor Jejomar C. Binay not
to renew or to cancel the Mayor's License and Business Permits of Feliza Building and to
compel petitioner to comply with the law.[7] Copies of the letter were forwarded to Engr. Nelson
B. Morales, the City Building Official, and Atty. Enrico Lainez, City Attorney.
Engr. Morales acted on the letter and wrote the EMB on April 30, 2002, requesting the
investigation of the complaint relative to the noise from the airconditioning units of the Feliza
Building.[8] A panel from the EMB conducted tests on the 36 blowers of Feliza Building from
10:30 a.m. to 12:50 p.m. on May 24, 2002. On June 28, 2002, the Panel submitted its
Investigation Report, stating that the passing of vehicles along the street and the blowers of
nearby building contributed to the ambient noise quality in the area. The report stated that since
DENR Administrative Order No. 30 devolved the functions of the DENR on the abatement of
noise nuisance to the Local Government Unit, the case should be endorsed to the City
Government of Makati for appropriate action.[9]
Regional Director Sixto E. Tolentino, Jr. of the EMB forwarded the report to Engr. Morales on
July 2, 2002.[10] In a letter dated July 19, 2002, Engr. Morales informed respondent that based
on the result of investigation conducted by the DENR Management Bureau on Sound Pressure
Levels (SPL) measured on the different sampling stations, the excess in the noise quality
standard within the vicinity does not come from the airconditioning system with 36 blowers of
Feliza Building alone; there were other prevailing factors to consider," which is beyond the
control of said building and since the final result has been rendered and resolved by the
concerned government agency, it is properly advised that further inquiry or anything involving
a sound environment process which is not sanctioned by this office, be addressed directly to
the said agency. "[11]
Copies of the letter were furnished to the City Mayor, the City Attorney and petitioner.
Respondent then wrote Engr. Morales seeking clarification, wanting to find out why the matter
should be referred to the EMB when the latter had already endorsed the matter to the City of
Makati. A conference was held between the executives of respondent and Engr. Morales. The
latter insisted on the report of the EMB and his July 19, 2002 letter and dared it to go to court
if it was not satisfied with the report and his resolution of the matter.
Respondent then wrote another letter to the EMB relative to the May 24, 2002 Report of the
Panel. The EMB conducted SPL measurements anew on February 4, 2003. Per its Report
submitted on November 24, 2003, the EMB declared that, from the table, it is evident that the
SPL measurements were high when the doors were opened compared to the readings when
the doors were closed. However, the EMB emphasized that the standards in Section 78 (b) of
the Implementing Rules and Regulations of P.D. No. 984 could not be applied since the
provisions were for ambient noise. It pointed out that the SPL measurements were taken inside
the building. The EMB opined that since the nature of complaint is regarding noise nuisance
generated from the firm's blowers, the SPL measurements were not the critical factor in the
resolution of the issue. It stated that the noise needs not to be high or low to annoy or cause
nuisance to the receptor, for as long as the complainant is disturbed with the level of sound
coming from the firm, it was considered a nuisance.[12]
On July 1, 2003, respondent filed a complaint for the abatement of nuisance with damages with
prayer for the issuance of a writ of preliminary and permanent injunction before the RTC of
Malabon City against petitioner. The complaint alleged the following:
The Feliza Building's airconditioning units are served by some 36 blowers, 4 blowers to each
floor located outside the windows of the building facing directly towards the Frabella I
Condominium. The 36 blowers were installed from the 2nd floor to the 10th floor of the building
and these blowers are aesthetically covered by a vertical concrete sun baffles.
[Every time] the Feliza Building's airconditioning system is turned on, all or a good number of
the 36 blowers are made to operate simultaneously. The operation of the Feliza's blowers
generates a continuous deafening unbearable vibrating and stressful noise affecting the
tenants of the Frabella I Condominium. Hot air is also blasted from the [Feliza] Building's
blowers to the direction of the Frabella 1Condominium.
The tenants occupying the 5th to the 16th floors of the Frabella I Condominium facing Feliza
Building are directly subjected to a daily continuous intense noise and hot air blast coming from
the blowers of the[10-storey] Feliza Building. Some are tenants of plaintiff, who have
complained to plaintiff about the matter. Tenants who could not bear the nuisance any longer
have vacated their units, and as a result, many units of plaintiff have remained vacant, and
unoccupied or uninhabitable, thereby depriving plaintiff with rental income that it should have
otherwise be receiving.
In all good faith, without any desire to cause any unnecessary inconvenience or trouble, plaintiff 04 November 1996
has written and made numerous contacts with defendant to complain about this nuisance, even "K"
soliciting the help and intercession of the Barangay San Lorenzo, Makati Commercial Estate 29 August 2000
Association, Inc. (MACEA), Metro Manila Development Authority (MMDA), Makati City "L"
Government, Makati Pollution Office and Department of Environment and Natural
Resources(DENR), to try to settle the matter amicably. Several meetings have taken place, as Please note that the testing done on 08 December 1995 (Annex - "I") was even requested by
well as many correspondences made by plaintiff to defendant. But reasonable and lawful defendant.
demands by plaintiff to abate the nuisance have been repeatedly ignored/refused by defendant.
The demand letters, and the response of defendant to these letters, are herein attached and On 04 February 2003, another test by the DENR was conducted, and a copy of the results are
made integral part of this Complaint as follows: herein attached and marked as Annex -"M." Although the latest test would seem to indicate
that there was a reduction in the decibel readings as compared with the previous tests, this is
Date actually misleading. For one, 28 blowers were operational at the time of the testing, as opposed
Annex to the previous testing done when all 36 blowers were functioning. This is rather exceptional
Remarks because ordinarily, all 36 blowers of the Feliza Building are in operation. The fact that only 28
11 April 1995 blowers were operational at the time of the testing resulted in the lower decibel reading.
"A" Demand letter to abate nuisance
15 May 1995 Plaintiff will also demonstrate by expert testimony during the course of the trial that there were
"B" Response to demand letter lapses committed during the latest testing that materially influenced the results. But be that as
06 June 1995 it may, defendant did not perform any remedial or rectification works to lower the noise being
"C" Follow-up demand letter generated by the blowers, hence[,| it was not responsible for any imagined or actual reduction
14 August 2000 in the decibel readings.
"D" Follow-up demand letter
There [are] more letters that were exchanged between plaintiff and defendant and/or their As a consequence of such unbearable, hot air and stressful noise, the occupants of the Frabella
lawyers, but they will not be attached to this Complaint at this time to simplify the facts. I, including the tenants of plaintiff, have been and still are, prevented from enjoying peaceful
and comfortable use of their property thereby forcing them to vacate and or to transfer
Even the Metro Manila Development Authority (MMDA) and Makati Commercial Estate elsewhere.
Association, Inc. (MACEA) wrote defendant letters urging it to rectify and abate the nuisance.
Copies of the letters of the MMDA dated 29 April 1996 and the MACEA dated 10 October 1996 Notwithstanding the foregoing results, repeated requests/demands from the plaintiff and
are herein attached and marked as Annexes - "E" and "F"[,] respectively. recommendations of the DENR, MACEA and MMDA to abate the pollution and nuisance, the
defendant has ignored and still continues to ignore such requests/demands/
On the other hand, the DENR, over a span of 7 years, has conducted several noise sampling recommendation.[13]
tests. As shown by the results, the unbearable noise generated by the Feliza's blowers is Respondent prayed for injunction and the following other reliefs, thus:
beyond the legally allowable level under Sec. 78(b) of P.D. 984, as indicated in their reports, WHEREFORE, premises considered, it is respectfully prayed that upon the filing of this
hence[,] it undoubtedly constitutes nuisance. Copies of the test results are herein attached and Complaint, after notice and hearing, and after the payment of a bond in an amount to be fixed
made an integral part of this Complaint as follows: by the Honorable Court, a Writ of Preliminary Injunction be issued enjoining defendant from
operating the airconditioning system of the Feliza Building and/or turning on the blowers subject
Date matter of this suit while the instant case remains pending.
Annex
29 June 1995 After trial and hearing, judgment be rendered against the defendant and for the plaintiff,
"G" ordering the former:
11 August 1995 To abate the noise and air pollution being generated by all the blowers of the airconditioning
"H" system of Feliza Building, and/or to make the Writ of Preliminary Injunction permanent;
08 December 1995
"I" To pay plaintiff the amount of P1,000,000.00 in temperate or moderate damages[;]
01 July 1996
"J" To pay the plaintiff the amount of P1,000,000.00 as and by way of exemplary damages;

To pay the plaintiff the amount of P500,000.00 as and by way of attorney's fees; and
[To pay] the cost of the suit.[14]
Petitioner moved for the dismissal of the complaint on the following grounds: (1) lack of
jurisdiction of the court over the subject matter of the complaint; (2) the complaint does not
state a cause of action; and (3) the action is barred by res judicata, litis pendentia, and forum
shopping.[15]
Petitioner averred that it was the Makati City Government that had jurisdiction over the
complaint pursuant to Republic Act (R.A.) No. 7160. It also pointed out that DENR
Administrative Order (A.O.) No. 30 issued on June 30, 1992 devolved to the local government
units the power to determine matters pertaining to environmental management such as: (a)
enforcement of pollution control and environmental protection laws, rules and regulations; (b)
abatement of noise and other forms of nuisance; and (c) implementation of cease and desist
orders issued by the PAB. It maintained that respondent had filed a similar action before the
Makati City Government concerning the same issues presented in the complaint and that the
City Building Official, Engr. Morales, had ruled in his letter dated July 19, 2002 that the excess
in the noise quality standard within the vicinity was caused not only by the air-conditioning
system of Feliza Building but also by other prevailing factors which were beyond its control.
Respondent had failed to appeal the resolution; hence, the resolution of the City Building
Official barred the complaint.
Petitioner further averred that, aside from the action brought before the City Government, the
Frabella Condominium Corporation (FCC) filed a case for Abatement of Noise and/or Air
Pollution and Damages with Prayer for Interim Cease and Desist Order, docketed as PAB Case
No. 01-0009-NCR. As gleaned from the material averments of the two complaints, both
involved the same set of facts and issues. Consequently, the petition is barred by litis
pendentia, and respondent was guilty of violating Section 5, Rule 7 of the Rules of Court for
failure to include in its certification against forum-shopping of the pendency of the PAB case or
the prior resolution by the City Government of the complaint before the City Building Official/City
Engineer.
Petitioner further claimed that the complaint stated no cause of action because it failed to allege
any right of respondent which it was obliged to respect, and any act or omission of defendant
in violation of such right. As gleaned from the EMB's report to the City Engineer on May 24,
2002, the passing of vehicles along the street and blowers in the nearby building contributed
to the ambient noise quality in the area.[16]
In compliance with the order of the court, the parties submitted their respective Position Papers.
Respondent averred that the provisions of R.A. No. 7160 cited by petitioner apply not to
abatements of nuisance but to pollution control cases.[17] The local government units (LGUs)
are only granted administrative and executive powers, not judicial or quasi-judicial functions to
abate a nuisance. While admitting that DENR A.O. No. 30 devolved to the LGUs the function
of abating noise and other forms of nuisance as defined by law, plaintiff posited that said A.O.
is not a law and the DENR cannot deprive the court of its jurisdiction over the abatement of
nuisance.
Respondent alleged that in filing a motion to dismiss, petitioner hypothetically admitted the
factual allegations in the complaint and, thus, only questions of law remained; hence, the
doctrine of primary jurisdiction and the need for exhaustion of administrative remedies do not
apply. Moreover, petitioner itself had even admitted that respondent had tried to seek
administrative relief before the Makati City Government, but the City Building Official denied
the same. It insisted that to require the further exhaust of administrative remedies beyond what
it had tried in the past years would be an injustice. It claimed that the proper application of P.D.
No. 984 was in issue, specifically Section 78(b) of the Rules and Regulations of the National
Pollution Control Commission (NPCC) which were adopted and promulgated pursuant to
Section 6 of P.D. No. 984 and Title VIII of the Civil Code. Respondent maintained that Engr.
Morales' letter to it could not be considered as final as to constitute res judicata between the
parties. It was only a reply-letter. Besides, the City Engineer/Building Official could not exercise
quasi-judicial functions. Due process was not also observed because no proceedings were
conducted. It insisted that it wrote follow-up letters to know the basis of his findings and to
confirm the fact that the Makati City Government did not issue a permit to operate its
airconditioning unit. However, Engr. Morales refused to acknowledge the same and did not
reply thereto.
Respondent asserted that it did not engage in forum shopping as the complainant in the PAB
case was FCC, a corporation of unit owners of Frabella I. ft is a totally different corporate entity,
the stockholders and officers of which are not similar to FPC. On petitioner's claim that there
was no cause of action for the abatement of nuisance, it declared that the material allegations
of its complaint and the answer thereto show otherwise. Petitioner had the obligation to abate
the nuisance caused by the blowers of Feliza Building. Although under the DENR Report on
May 24, 2002, the DENR conducted noise sampling, and noted that the passing vehicles along
the street and blowers of nearby building contributed to the noise, the basis of its complaint
was the noise generated by the blowers of Feliza Building.
Before the RTC court could resolve the motion to dismiss of petitioner, the PAB resolved, on
July 29, 2003[18] to dismiss the complaint filed by Frabelle. The matter was then endorsed to
the LGU concerned in accordance with Section IV, Rule III of PAB Resolution 1-C, Series of
1997, as amended. It noted that based on the pleadings of the parties, and the testimonial
evidence, the case is more of a nuisance, and "[e]xcept where such would constitute a pollution
case, local government units shall have the power to abate nuisance within their respective
areas pursuant to the Republic Act No. 386 (Civil Code of the Philippines), Republic Act 7160
(the Local Government Code), Presidential Decree 856 (the Code of Sanitation of the
Philippines), DENR Department Administrative Order No. 30, Series of 1992 and other
pertinent laws, rules and regulations" without prejudice to the institution of a pollution case,
upon proof that respondent had failed to comply with DENR standards and the presentation of
other evidence that would warrant the PAB to take cognizance of and assert jurisdiction over
the case.[19]
Thereafter, the RTC denied petitioner's motion to dismiss in an Order[20] dated September 15,
2003. It ruled that the doctrine of primary jurisdiction simply calls for the determination of
administrative questions, which are ordinarily questions of facts and not of law. Likewise, the
trial court is not divested of its jurisdiction simply because of plaintiff's failure to observe the
doctrine of exhaustion of administrative remedies. Moreover, as gleaned from the averments
of the complaint, there was an urgency of abating the noise and air pollution generated by the
blowers of petitioner's airconditioning system such that respondent prayed for injunctive relief.
The RTC took note of the allegations of respondent that it would suffer great and irreparable
injury; hence, to require it to exhaust further administrative remedies would be, in effect, a
nullification of its claim.
According to the RTC, the doctrine of res judicata applies only to judicial and quasi-judicial
proceedings and not to the exercise of administrative powers. Thus, no forum shopping was
also committed. Since the findings of the City Building Official appear to be a complete
disavowal of the previous results gathered from the numerous tests conducted by the EMB,
the court could not be deprived of its inherent power to review the factual findings of the
administrative official in order to determine the regularity of the procedure used.
On the merits of the complaint, the RTC declared that the factual allegations were sufficient in
themselves to constitute a cause of action against respondent and, if admitting the facts, the
court can render valid judgment on the basis thereof in accordance with the relief prayed for:
Undeniably, the instant complaint is one for abatement of nuisance. Plaintiff alleges that the
operation of defendant's blowers generates a continuous, deafening, unbearable, vibrating and
stressful noise affecting its tenants. Some have already vacated their units while others refused
to pay rents and threaten plaintiff to be sued because of the unabated nuisance. Plaintiff has
been deprived of rental income. It had written and made numerous contacts with the defendant
to complain about the nuisance and further solicited intervention from government agencies
including the Government of Makati City. Defendant allegedly failed or refused to abate the
nuisance which is in total disregard of the right of the plaintiff over its property. Contested
findings of the EMB and City Building Official of Makati City are, likewise, put in issue. These
are sufficient to constitute a cause of action against the defendant and, if admitting the facts,
this Court can render valid judgment upon the same in accordance with the relief prayed for.[21]
The court denied the motion for reconsideration filed by petitioner[22] and the latter sought:
relief from the CA via a petition for certiorari. Petitioner averred that:
THE PUBLIC RESPONDENT ACTED WITHOUT JURISDICTION, OR WITH GRAVE ABUSE
OF DISCRETION SO GRAVE AS TO LOSE JURISDICTION IN ASSUMING AND
EXERCISING ITS JURISDICTION IN CIVIL CASE NO. 03-3745-MN, CONSIDERING THAT:
THE HONORABLE COURT HAS NO JURISDICTION OVER THE SUBJECT MATTER OF
THE COMPLAINT. JURISDICTION IS VESTED WITH THE MAKATI CITY GOVERNMENT,
THE LOCAL GOVERNMENT UNIT CONCERNED.
THE COMPLAINT IS BARRED BY RES JUDICATA. THE MAKATI CITY GOVERNMENT HAS
ALREADY DECIDED A COMPLAINT FILED BY FRABELLE. FRABELLE DID NOT ELEVATE
THE SAME ON APPEAL, OR, IN ANY WAY, QUESTION SUCH DECISION. THUS, THE
DECISION BY THE MAKATI CITY GOVERNMENT IS NOW FINAL AND EXECUTORY.
AT THE TIME THE COMPLAINT WAS FILED, IT WAS BARRED BY LITIS PENDENTIA. A
SIMILAR ACTION WAS PENDING WITH THE POLLUTION ADJUDICATION BOARD (PAB)
WHICH, SUBSEQUENTLY, FOUND NO LIABILITY ON THE PART OF AC. FRABELLE IS
CLEARLY AND UNDENIABLY GUILTY OF FORUM-SHOPPING.
PLAINTIFF FRABELLE HAS NO CAUSE OF ACTION AND THE COMPLAINT FAILS TO
STATE A CAUSE OF ACTION AGAINST AC ENTERPRISES.[23]
Petitioner asserted that, by express provision of law, the City of Makati has primary jurisdiction
over the complaint and is the competent authority to determine the existence of any incidence
of pollution, the special standards and regulations controlling the same and the resolution
whether a party has complied with the regulations. The complaint does not fall under any of the
exceptions to the rule on exhaustion of administrative remedies. Respondent is guilty of short-
circuiting the whole process without requisite justification. Contrary to the contention of
respondent, the proceedings before the City Government are quasi-judicial in nature. It pointed
out that the City Government had already made its findings, which respondent did not contest
in the proper tribunal within the reglementary period. It did not appeal the decision of the City
Building Official conformably with DENR Administrative Order No. 37-45 (General Manual of
Operations for Devolved Functions from the Department of Environment and Natural
Resources to the Local Government Units); hence, the resolution became final and executory.
It insisted that the complaint is but a desperate attempt to revive what is otherwise a dead
issue.
On September 21, 2004, the CA rendered judgment denying the petition.[24] The fallo of the
decision reads:
WHEREFORE, premises considered, the petition is DISMISSED for lack of merit. Accordingly,
the dismissal of the petition rendered the application for a temporary restraining order or writ
of preliminary injunction moot and academic.
SO ORDERED.[25]
The CA ruled that the action of respondent was one for the abatement of a nuisance within the
exclusive jurisdiction of the RTC. It agreed with respondents' contention that, under R.A. No.
7160, the LGUs are not divested of its jurisdiction over an action for the abatement of a
nuisance. Section 17, sub-paragraphs (b)(3)(iii) in relation to (b)(4) of the law pertain to the
enforcement of pollution control law and not to the abatement of nuisance. While DENR A.O.
No. 30 devolved to the LGUs the abatement of noise and other forms of nuisance as defined
by law, this does not necessarily deprive the courts to hear and decide actions pertaining
thereon. It was thus proper for respondent to bring the case before the court since it had already
sought the intercession of Barangay San Lorenzo, Makati Commercial Estate Corporation
(MACEA), DENR, and the Makati City Government to no avail.
Further, the doctrine of primary jurisdiction and the principle of exhaustion of administrative
remedies need not be adhered to when the question between the parties is purely legal. In this
case, petitioner, in filing a motion to dismiss, is deemed to have hypothetically admitted all the
factual averments of respondent. Hence, what is left for the court to adjudicate is only the
application of laws dealing with nuisance. The CA also declared that the filing of the case below
was not barred by res judicata for the reason that the decision adverted to by petitioner was
only a letter of the City Building Official to respondent; no adversarial proceedings or
submission of evidence and position papers took place before said office. At best, the letter is
only an exercise of the City Government's administrative powers, not judicial or quasi-judicial
functions which the City Building Official does not possess. Respondent's filing of the complaint
before the Malabon RTC is also not barred by litis pendentia. FCC, as complainant, initiated
the action before the PAB, while the respondent filed the pending case before the court; there
is no identity of parties since FCC has a personality separate and distinct from that of
respondent.
Finally, the CA held that all the requisites for the existence of a cause of action were present
in the case at bar. Due to the unbearable noise and hot air allegedly produced by the blowers
installed at petitioner's building, tenants of respondent have been complaining, forcing them to
vacate their units while others refused to pay their rent and threatened to take legal action.
Respondent had the right to abate such nuisance in order to avert future business losses. Since
petitioner refused to heed its demands, respondent was well within its right to file a case
protecting its property and proprietary rights.
On January 18, 2005, the appellate court resolved to deny petitioner's motion for
reconsideration[26] for lack of merit.[27]
Petitioner forthwith filed the instant petition for review on certiorari, praying for the reversal of
the CA decision and resolution on the following grounds:
I.
THE COURT OF APPEALS ERRONEOUSLY RULED THAT THE LOWER COURT HAS
JURISDICTION OVER THE INSTANT CASE, CONSIDERING THAT THE EXCLUSIVE
AUTHORITY TO DETERMINE THE ISSUES INVOLVED IN THE CASE A QUO LIES WITH
THE CITY OF MAKATI.
A.
THE COURT OF APPEALS ERRED IN NOT RULING THAT THE POWER TO ABATE
NUISANCES AND CONTROL NOISE POLLUTION HAS BEEN DEVOLVED TO THE LOCAL
GOVERNMENT UNIT CONCERNED IN ACCORDANCE WITH REPUBLIC ACT 7160
OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE.
II.
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ISSUES INVOLVED IN
THE INSTANT CASE NECESSARILY INVOLVE A QUESTION OF FACT, AND,
THEREFORE, THE DOCTRINE OF PRIMARY JURISDICTION AND THE DOCTRINE OF
EXHAUSTION OF ADMINISTRATIVE REMEDIES ARE BOTH APPLICABLE.
III.
THE COURT OF APPEALS ERRONEOUSLY RULED THAT THE COMPLAINT IS NOT
BARRED BY (1) LITIS PENDENTIA; (2) RES JUDICATA; AND (3) FORUM-SHOPPING.
IV.
THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT'S COMPLAINT
STATES A CAUSE OF ACTION.[28]
Petitioner insists that, under Section 17(b)(4) in relation to Section 17(b)(3)(III) of R.A. No.
7160, the City of Makati is obliged to enforce the Pollution Control Law, and under Section
458(4)(I) of the said law, the Sanggnniang Panghmgsod is empowered to declare, prevent or
abate any nuisance. Thus, the City of Makati has exclusive jurisdiction over respondent's
complaint for the abatement of the noise from the blowers of the airconditioning unit of the
Feliza Building and of the hot air generated by the said blowers. Petitioner avers that the issues
before the trial court were factual in nature. By its motion to dismiss the complaint, it did not
hypothetically admit the allegations of respondent in its complaint that the noise and hot air
emitted by the blowers of the Feliza Building constitute a nuisance or air pollution because the
allegations are mere conclusions of law and not mere statements of facts. Respondent's
complaint before the trial court and its several complaints against petitioner before quasi-
judicial bodies is an implied admission of the availability of administrative remedies under the
law. Since respondent failed to pursue and exhaust all administrative remedies before filing its
complaint below, its action was premature. While there were exceptions to the requirement of
exhaustion of administrative remedies, nevertheless, respondent failed to establish any of
them. Moreover, respondent's action before the RTC was barred by the letter of the City
Engineer's Office of Makati City on July 19, 2002 which ruled that there was no factual basis
for respondent's complaint; hence, respondent's complaint was barred by res judicata. The
complainant in PAB Case No. 01-0009-NCR involved the same set of issues and
circumstances, and the complainant therein and respondent represented the same interests,
alleged the same rights and prayed for the same reliefs. Consequently, the RTC erred in
denying its motion to dismiss the complaint on the ground of res judicata, litis pendentia and
forum shopping.
Finally, respondent had no cause of action against petitioner because, as shown by the tests
conducted by the EMB on May 24, 2002, based on noise sampling tests, the noise and air
pollution did not emanate from Feliza Building but from passing cars.
In its comment on the petition, respondent maintained that the assailed orders of the RTC and
decision of the CA are in accord with law and the rulings of this Court. Respondent maintains
that the only issue before the trial court was how to apply P.D. No. 984 and Section 78(b) and
the Rules and Regulations of the NPCC and the provisions of the New Civil Code governing
the abatement of nuisance. By filing a motion to dismiss the complaint on the ground that it
stated no cause of action, the petitioner thereby hypothetically admitted the factual allegations
therein. The court must hear the case to be able to finally resolve the factual issues that may
be raised in the Answer of the petitioner after the denial of its motion to dismiss.
Respondent avers that it was not obliged to first exhaust all administrative remedies. It pointed
out that the Building Official of Makati City ignored its right to due process when he dismissed
its complaint without conducting an investigation based solely on the July 2, 2002 Report of the
EMB Panel. The issues between the parties are legal, that is, whether there is irreparable injury.
It likewise points out that to require exhaustion of administrative remedies would be
unreasonable as the rule does not provide a plain, speedy and adequate remedy. It insists that
it could not have appealed the letters of the City Mayor and the Building Official of Makati
because there are no rules promulgated by the City governing appeals from said letters. It
points out that the City Engineer and City Mayor did not grant its letter requesting for a
clarification of petitioner's letters denying its letter-complaint.
The petition is denied for lack of merit.
The Order of the RTC dated September 15, 2003 denying the motion to dismiss of petitioner
(as defendant below) is interlocutory in nature. The general rule is that an order denying a
motion to dismiss a complaint cannot be questioned via a special civil action for certiorari until
a final judgment on the merits of the case is rendered. A party must exhaust all remedies
available before resorting to certiorari. A writ for certiorari is not intended to correct every
controversial interlocutory ruling. It is resorted only to correct a grave abuse of discretion or a
whimsical exercise of judgment equivalent to lack of jurisdiction. It is a remedy narrow in scope,
limited only to keeping an inferior court within its jurisdiction and to relieve persons from
arbitrary acts which courts have no power or authority to perform.[29] The remedy of petitioner
was to go to trial and appeal from an adverse decision.
Moreover, the CA correctly ruled that the RTC did not commit grave abuse of its discretion in
denying the motion to dismiss filed by respondent. Indeed, the assailed orders of the RTC are
in accord with the law and rulings of this Court, taking into account the averments of the
complaint and the answer appended thereto and the other pleadings of the parties.
The RTC Has Jurisdiction
Over the Action of the
Respondent for Abatement
Of Nuisance
It is axiomatic that the nature of an action and whether the tribunal has exclusive jurisdiction
over such action are to be determined from the material allegations of the complaint, the law in
force at the time the complaint is filed, and the character of the relief sought irrespective of
whether plaintiff is entitled to all or some of the claims averred. Jurisdiction is not affected by
the pleas or the theories set up by defendant in an answer to the complaint or a motion to
dismiss the same. Otherwise, jurisdiction would be dependent almost entirely upon the whims
of defendants.[30]
We agree with the ruling of the RTC, as affirmed by the CA, that as gleaned from the material
averments of the complaint as well as the character of the relief prayed for by respondent in its
complaint before the RTC, the petition is one for the judicial abatement of a private nuisance,
more specifically the noise generated by the blowers of the airconditioning system of the Feliza
Building owned by petitioner, with a plea for a writ of preliminary and permanent injunction, plus
damages. Such action of respondent is incapable of pecuniary estimation because the basic
issue is something other than the right to recover a sum of money. Although respondent prayed
for judgment for temperate or moderate damages and exemplary damages, such claims are
merely incidental to or as a consequence of, the principal relief sought by respondent. An action
incapable of pecuniary estimation is within the exclusive jurisdiction of the RTC as provided in
Batas Pambansa Bilang (B.P. Blg.) 129, as amended by R.A. No. 7691.[31] In Tatel v.
Municipality of Virac,[32] the Court ruled that a simple suit for abatement of a nuisance is within
the exclusive jurisdiction of the Court of First Instance, now the RTC.
Article 694 of the New Civil Code defines a nuisance as follows:
Art. 694. A nuisance is any act., omission, establishment, business, condition of property, or
anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public highway or street, or any body
of water; or
(5) Hinders or impairs the use of property.
The term "nuisance" is so comprehensive that it has been applied to almost all ways which
have interfered with the rights of the citizens, either in person, property, the enjoyment of his
property, or his comfort.[33] According to Article 695 of the Civil Code, a nuisance may be
either public or private:
Art. 695. Nuisance is either public or private. A public nuisance affects a community or
neighborhood or any considerable number of persons, although the extent of the annoyance,
danger or damage upon individuals may be unequal. A private nuisance is one that is not
included in the foregoing definition.
A private nuisance has been defined as one which violates only private rights and produces
damages to but one or a few persons.[34] A nuisance is public when it interferes with the
exercise of public right by directly encroaching on public property or by causing a common
injury.[35] It is an unreasonable interference with the right common to the general public.[36]
Under Article 705 of the New Civil Code, a party aggrieved by a private nuisance has two
alternative remedies: (1) a civil action; or (2) abatement, without judicial proceedings. A person
injured by a private nuisance may abate it as provided in Article 706:
Art. 706. Any person injured by a private nuisance may abate it by removing, or if necessary
by destroying the thing which constitutes the nuisance, without committing a breach of the
peace or doing unnecessary injury. However, it is indispensable that the procedure for
extrajudicial abatement of a public nuisance by a private person be followed.
A private nuisance action is the remedy for an invasion of a property right. On the other hand,
the action for the abatement of a public nuisance should be commenced by the city or
municipality.[37] A private person may institute an action for the abatement of a public nuisance
in cases wherein he suffered a special injury of a direct and substantial character other than
that-which the general public shares.[38] The district health officer shall determine whether or
not abatement, without judicial proceedings, is the best remedy against a public nuisance.[39]
In the present case, respondent opted to file an action in the RTC for abatement of the private
nuisance complained of and damages under Article 697 of the New Civil Code for its past
existence.
One has an action to recover personal damages arising from a private nuisance. The gist of
the action is the unreasonable interference by the defendant with the use and enjoyment of
properties. Indeed, petitioner may be compelled to adopt the necessary measures to reduce or
deaden the nuisance emanating from the blowers of the airconditioning system at the Feliza
Building.
The PAB has no primary jurisdiction over the noise complained of by ihe respondent. The
resolution of the issue before the RTC, which is whether the noise complained of is actionable
nuisance, does not require any special technical knowledge, expertise and experience of the
PAB or even of Makati City requiring the determination of technical and intricate matters of fact.
Indeed, the PAB dismissed the complaint of the Frabelle I Condominium Corporation declaring
that, based on the pleadings before it and the evidence of the parties, the case is more of an
abatement of a nuisance under the New Civil Code and DENR Order No. 30, Series of 1992.
It declared that it was not a pollution case. The Resolution reads:
After considering the evidence adduced and the arguments of both parties in their pleadings,
the Board, likewise giving due importance to the technical findings giving rise to the conclusion
that the nature of the case is more of a nuisance, hereby resolves to DISMISS the pending
complaint of pollution in accordance with Rule III, Section IV of PAB Resolution 1-C, Series of
1997 as amended, which categorically states that "Except where such would constitute a
pollution case, local government units shall have the power to abate a nuisance within their
respective areas pursuant to the Republic Act No. 386 (Civil Code of the Philippines), Republic
Act 7160 (the Local Government Code), Presidential Decree 856 (the Code on Sanitation of
the Philippines), DENR Department Administrative Order No. 30, Series of 1992 and other
pertinent laws, rules and regulations. " (underscoring supplied)
Accordingly, the issues raised by the complainant are hereby endorsed to the Local
Government Unit concerned for appropriate action consistent with above cited laws, and
without prejudice to the institution of a pollution case upon definite findings that herein
respondent had failed to comply with the DENR Standards, and presentation of other evidence
that would warrant the Board to take cognizance of the matter as a pollution case.[40]
The power of the NPCC to resolve pollution cases under Section 6, paragraphs (e), (f), (g), (j),
(k) and (p) of P.D. No. 984 is vested in the Pollution Adjudication Board (PAB) under Title XIV,
Chapter 2, Section 13 of the 1987 Administrative Code, which reads:
SEC. 13. Pollution Adjudication Board. - The Pollution Adjudication Board, under the Office of
the Secretary, shall be composed of the Secretary as Chairman, two Undersecretaries as may
be designated by the Secretary, the Director of Environmental Management, and three others
to be designated by the Secretary as members. The Board shall assume the powers and
functions of the Commission Commissioners of the National Pollution Control Commission with
respect to the adjudication of pollution cases under Republic Act 3931 and Presidential Decree
984, particularly with respect to Section 6 letters (e), (f), (g), (j), (k) and (p) of P.D. 984. The
Environment Management Bureau shall serve as the Secretariat of the Board. These powers
and functions may be delegated to the regional officers of the Department in accordance with
the rules and regulations to be promulgated by the Board.
The cases referred to in Section 6 of P.D. No. 984 are as follows:
(e) Issue orders or decisions to compel compliance with the provisions of this Decree and its
implementing rules and regulations only after proper notice and hearing.
(f) Make, alter or modify orders requiring the discontinuance of pollution specifying the
conditions and the time within such discontinuance must be accomplished.
(g) Issue, renew or deny permits, under such conditions as it may determine to be reasonable,
for the prevention and abatement of pollution, for the discharge of sewage, industrial waste, or
for the installation or operation of sewage works and industrial disposal system or parts thereof:
Provided, however, That the Commission, by rules and regulations, may require subdivisions,
condominium, hospitals, public buildings and other similar human settlements to put up
appropriate central sewerage system and sewage treatment works, except that no permits shall
be required of any new sewage works or changes to or extensions of existing works that
discharge only domestic or sanitary wastes from a single residential building provided with
septic tanks or their equivalent. The Commission may impose reasonable fees and charges for
the issuance or renewal of all permits herein required.
xxx
(j) Serve as arbitrator for the determination of reparations, or restitution of the damages and
losses resulting from pollution.
(k) Deputize in writing or request assistance of appropriate government agencies or
instrumentalities for the purpose of enforcing this Decree and its implementing rules and
regulations and the orders and decision of the Commission.
xxx
(p) Exercise such powers and perform such other functions as may be necessary to carry out
its duties and responsibilities under this Decree.
Section 2(a) of P.D. No. 984 defines pollution as:
(a) "Pollution" means any alteration of the physical, chemical and biological properties of any
water, air and/or land resources of the Philippines, or any discharge thereto of any liquid,
gaseous or solid wastes as will or is likely to create or to render such water, air and land
resources harmful, detrimental or injuries to public health, safety or welfare or which will
adversely affect their utilization for domestic, commercial, industrial, agricultural, recreational
or other legitimate purposes.
We agree with petitioner's contention that, under Section 447(a)(3)(i) of R.A. No. 7160,
otherwise known as the Local Government Code, the Sangguniang Panglungsod is
empowered to enact ordinances declaring, preventing or abating noise and other forms of
nuisance. It bears stressing, however, that the Sangguniang Bayan cannot declare a particular
thing as a nuisance per se and order its condemnation. It does not have the power to find, as
a fact, that a particular thing is a nuisance when such thing is not a nuisance per se; nor can it
authorize the extrajudicial condemnation and destruction of that as a nuisance which in its Evening.............. 6:00 P.M. to 10:00 P.M.
nature, situation or use is not such. Those things must be determined and resolved in the Nighttime......... 10:00 P.M. to 5:00 P.M.
ordinary courts of law. If a thing be in fact, a nuisance due to the manner of its operation, that The LGUs may conduct inspections, at all reasonable times, without doing damage, after due
question cannot be determined by a mere resolution of the Sangguniang Bayan.[41] notice to the owners of buildings to ascertain compliance with the noise standards under the
law; and to order them to comply therewith if they fail to do so; or suspend or cancel any building
Section 17 of R.A. No. 7160 provides that local government units shall discharge the functions permits or clearance certificates issued by it for said units/buildings after due hearing as
and responsibilities of national agencies and offices devolved to them pursuant to the law; and required by P.D. No. 984.
such other powers, functions and responsibilities as are necessary, appropriate or incidental
to efficient and effective provisions of the basic services and facilities in the Code. Devolution However, the LGUs have no power to declare a particular thing as a nuisance unless such as
refers to the act by which the national government confers powers and authority upon the thing is a nuisance per se; nor can they effect the extrajudicial abatement of that as a nuisance
various local government units to perform specific functions and responsibilities. which in its nature or use is not such. Those things must be resolved by the courts in the
ordinary course of law.
What were devolved by the DENR to the LGUs under DENR Administrative Order No. 30 dated
June 30, 1992, in relation to R.A. No. 7160, were the regulatory functions/duties of the National Whether or not noise emanating from a blower of the airconditioning units of the Feliza Building
Pollution Control Commission (NPCC) which were absorbed and integrated by the EMB, as is nuisance is to be resolved only by the court in due course of proceedings. The plaintiff must
provided in Title No. XIV, Chapter 2, Section 17 of the 1987 Administrative Code. However, the prove that the noise is a nuisance and the consequences thereof. Noise is not a nuisance per
DENR exercises administrative supervision and control over the LGUs. Enumerated in Chapter se. It may be of such a character as to constitute a nuisance, even though it arises from the
IV, Article 1, Sections 74 to 79 of the Rules and Regulations promulgated by the NPCC operation of a lawful business, only if it affects injuriously the health or comfort of ordinary
implementing P.D. 984 are the regulations relative to noise control, specifically, the noise people in the vicinity to an unreasonable extent. Injury to a particular person in a peculiar
quality standards. position or of especially sensitive characteristics will not render the noise an actionable
nuisance. In the conditions of present living, noise seems inseparable from the conduct of many
Under Section 78 of said Rules, as amended by NPCC Memorandum Circular No. 002, dated necessary occupations. Its presence is a nuisance in the popular sense in which that word is
May 12, 1980, the Environmental Quality Standards for Noise in General Areas are:melo used, but in the absence of statute, noise becomes actionable only when it passes the limits of
reasonable adjustment to the conditions of the locality and of the needs of the maker to the
Category needs of the listener. What those limits are cannot be fixed by any definite measure of quantity
Of Area or quality; they depend upon the circumstances of the particular case. They may be affected,
Daytime Morning& but are not controlled, by zoning ordinances. The delimitation of designated areas to use for
Evening Nighttime manufacturing, industry or general business is not a license to emit every noise profitably
AA attending the conduct of any one of them.
50 dB 45 dB 40 dB
A The test is whether rights of property, of health or of comfort are so injuriously affected by the
55 " 50 " 45 " noise in question that the sufferer is subjected to a loss which goes beyond the reasonable
B limit imposed upon him by the condition of living, or of holding property, in a particular locality
65 " 60 " 55 " in fact devoted to uses which involve the emission of noise although ordinary care is taken to
C confine it within reasonable bounds; or in the vicinity of property of another owner who, though
70 " 65 " 60 " creating a noise, is acting with reasonable regard for the rights of those affected by it.[42]
D
75 " 70 " 65 " Commercial and industrial activities which are lawful in themselves may become nuisances if
Class ''A" area refers to that section or contiguous area which is primarily used for residential they are so offensive to the senses that they render the enjoyment of life and property
purposes, while Class "B" refers to that section or contiguous area which is primarily a uncomfortable. The fact that the cause of the complaint must be substantial has often led to
commercial area. Frabelle I and Feliza Buildings are located in Makati City, an area which is expressions in the opinions that to be a nuisance the noise must be deafening or loud or
classified as a commercial district. excessive and unreasonable. The determining factor when noise alone is the cause of
complaint is not its intensity or volume. It is that the noise is of such character as to produce
The division of the 24-hour period shall be as follows: actual physical discomfort and annoyance to a person of ordinary sensibilities, rendering
Morning..............5:00 A.M. to 9:00 A.M. adjacent property less comfortable and valuable. If the noise does that it can well be said to be
Daytime............. 8:00 A.M. to 10:00 P.M. substantial and unreasonable in degree; and reasonableness is a question of fact dependent
upon all the circumstances and conditions. There can be no fixed standard as to what kind of
noise constitutes a nuisance.[43]
The courts have made it clear that in every case the question is one of reasonableness. What
is a reasonable use of one's property and whether a particular use is an unreasonable invasion
of another's use and enjoyment of his property so as to constitute a nuisance cannot be
determined by exact rules, but must necessarily depend upon the circumstances of each case,
such as locality and the character of the surroundings, the nature, utility and social value of the
use, the extent and nature of the harm involved, the nature, utility and social value of the use
or enjoyment invaded, and the like.[44]
Persons who live or work in thickly populated business districts must necessarily endure the
usual annoyances and of those trades and businesses which are properly located and carried
on in the neighborhood where they live or work. But these annoyances and discomforts must
not be more than those ordinarily to be expected in the community or district, and which are
incident to the lawful conduct of such trades and businesses. If they exceed what might be
reasonably expected and cause unnecessary harm, then the court will grant relief.[45]
A finding by the LGU that the noise quality standards under the law have not been complied
with is not a prerequisite nor constitutes indispensable evidence to prove that the defendant is
or is not liable for a nuisance and for damages. Such finding is merely corroborative to the
testimonial and/or other evidence to be presented by the parties. The exercise of due care by
the owner of a business in its operation does not constitute a defense where, notwithstanding
the same, the business as conducted, seriously affects the rights of those in its vicinity.[46]
We reject petitioner's contention that respondent's complaint does not state a cause of action
for abatement of a private nuisance and for damages. Under Section 1(g), Rule 16 of the Rules
of Court, a complaint may be dismissed upon motion if the complaint states no cause of action,
or that a condition precedent for filing the claim has not been complied with.[47]
A cause of action is the act or omission by which a party violates a right of another.[48] A cause
of action exists if the following elements are present: (1) a right in favor of the plaintiff by
whatever means and under whatever law it arises or is created; (2) an obligation on the part of
the named defendant to respect or not to violate such right; and (3) an act or omission on the
part of such defendant violative of the right of plaintiff or constituting a breach of the obligation
of defendant to plaintiff for which the latter may maintain an action for recovery of damages.[49]
The fundamental test for failure to state a cause of action is whether, admitting the veracity of
what appears on the face and within the four corners of the complaint, plaintiff is entitled to the
relief prayed for. Stated otherwise, may the court render a valid judgment upon the facts alleged
therein?[50] Indeed, the inquiry is into the sufficiency, not the veracity of the material
allegations.[51] If the allegations in the complaint furnish sufficient basis on which it can be
maintained, it should not be dismissed regardless of the defenses that may be presented by
defendants.[52] As the Court emphasized:
In determining whether allegations of a complaint are sufficient to support a cause of action, it
must be borne in mind that the complaint does not have to establish or allege facts proving the
existence of a cause of action at the outset; this will have to be done at the trial on the merits
of the case. To sustain a motion to dismiss for lack of cause of action, the complaint must show
that the claim for relief does not exist, rather than that a claim has been defectively stated, or
is ambiguous, indefinite or uncertain.
Equally important, a defendant moving to dismiss a complaint on the ground of lack of cause
of action is regarded as having hypothetically admitted all the averments thereof.[53]
The general rule is that the facts asserted in the complaint must be taken into account without
modification although with reasonable inferences therefrom.[54] However, all the pleadings
filed may be considered, including annexes, motions and the other evidence on record, to wit:
However, in so doing, the .trial court does not rule on the truth or falsity of such documents. It
merely includes such documents in the hypothetical admission. Any review of a finding of lack
of cause of action based on these documents would not involve a calibration of the probative
value of such pieces of evidence but would only limit itself to the inquiry of whether the law was
properly applied given the facts and these supporting documents. Therefore, what would
inevitably arise from such a review are pure questions of law, and not questions of fact.[55]
Section 2, Rule 3, of the Revised Rules of Civil Procedure provides that every action must be
prosecuted or defended in the name of the real party-in-interest.
SEC. 2. Parties in interest. - A real party in interest is the party who stands to be benefited or
injured by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise
authorized by law or these Rules, every action must be prosecuted or defended in the name of
the real party in interest. (2a)
"Interest" within the meaning of the rule means material interest, an interest in essence to be
affected by the judgment as distinguished from mere interest in the question involved, or a
mere incidental interest. By real interest is meant a present substantial interest, as
distinguished from a mere expectancy or a future, contingent, subordinate or consequential
interest.[56] A real party in interest-plaintiff is one who has a legal right while a real party
defendant is one who has a correlative legal obligation whose act or omission violate the legal
right of the former.[57]
A person injured by a nuisance may bring an action in his own name and in behalf of others
similarly affected to abate the same.[58] One who has an interest in the property affected such
as the owner thereof or fix interest therein are proper parties as plaintiffs.[59] Possession alone
of real estate is sufficient to sustain an action to recover damages from the maintenance of a
nuisance by the adjoining property in such manner as to injure the enjoyment of the former.
In the present case, respondent made the following allegations in its complaint below:
[Every time] the Feliza Building's airconditioning system is turned on, all or a good number of
the 36 blowers are made to operate simultaneously. The operation of the Feliza's blowers
generates a continuous defeaning unbearable vibrating and stressful noise affecting the
tenants of Frabella I Condominium. Hot air is also blasted from the [Feliza Building's blowers
to the direction of the Frabella 1 Condominium.
xxxx
The tenants occupying the 5th to the 16th floors of the Frabella 1 Condominium facing Feliza
Building are directly subjected to a daily continuous intense noise and hot air blast coming from
the blowers of the [10-storey] Feliza Building. Some are tenants of plaintiff, who have
complained to plaintiff about the matter. Tenants who could not bear the nuisance any longer
have vacated their units, and as a result, many units of plaintiff have remained vacant, and
unoccupied or uninhabitable thereby depriving plaintiff with rental income that it should have
otherwise be receiving.
xxxx
Defendant did not perform any remedial or rectification works to lower the noise being
generated by the blowers;
As a consequence of such unbearable, hot air and stressful noise, the occupants of the Frabella
I, including the tenants of plaintiff, have been and still are, prevented from enjoying peaceful
and comfortable use of their property thereby forcing them to vacate and or to transfer
elsewhere.
Notwithstanding the foregoing results, repeated requests/demands from the plaintiff and
recommendation of the DENR, MACEA and MMDA to abate nuisance, the defendant has
ignored and still continues to ignore such requests/demands/recommendation.
Appended to respondent's complaint are its letters of demand to the petitioner for the latter to
abate the nuisance complained of, as well as the results of the tests conducted by the DENR
showing that the noise generated by the blowers of the Feliza Building is beyond the legally
allowable level standards under Section 78 of P.D. No. 984.
By filing a motion to dismiss the complaint on the ground that the complaint does not state a
sufficient cause of action for abatement of nuisance and damages, petitioner hypothetically
admitted the material allegations of the complaint. A plain reading of the material averments
therein and its appendages will readily show that respondent had a cause of action for
abatement of a private nuisance and for damages.
Respondent is the real party-in-interest as party plaintiff in the complaint below because it
owned several units in Frabelle I and, as a result of the defeaning and unbearable noise from
the blowers of the airconditioning units of the Feliza Building owned by petitioner, many tenants
of the respondent vacated their units. The units remained unoccupied, thereby depriving
respondent of income. Some of the tenants even threatened to sue respondent on account of
the noise from the Feliza Building. In fine, respondent is obliged to maintain its tenants in the
peaceful and adequate enjoyment of the units.[60]
Under Article 697 of the New Civil Code, the aggrieved party is entitled to damages for the
present and past existence of a nuisance.[61] He is entitled to actual or compensatory
damages[62] or indemnification for damages inclusive of the value of the loss suffered and
profits which respondent failed to obtain.
Liability for nuisance may be imposed upon one who sets in motion the force which entirely
caused the tortuous act; upon one who sets in motion a force or a chain of events resulting in
the nuisance. In an action for damages resulting from a nuisance, responsibility arises not only
from the creator of the nuisance but from its continued maintenance as well[63]. One is entitled
to damages on account of the conduct by another of his business which unreasonably and
substantially interferes with the quiet enjoyment of his premises by himself or of his tenants.[64]
It is sufficient to maintain an action for abatement of a nuisance if his buildings is rendered
valueless for the purpose it was devoted.
A negligent act may constitute a nuisance. An intentional act may also constitute a nuisance.
A nuisance may be formed from a continuous, known invasion, where, after complaint, and
notice of damage, the defendant continues to offend and refuses to correct or discontinue the
nuisance. In such a case, the nuisance is deemed intentional.[65] An unreasonable use,
perpetrated and uncorrected even after complaint and notice of damage is deemed
intentional.[66]
In this case, as alleged in the complaint, the subject nuisance had been existing continuously
since 1995 and, despite repeated demands by respondent, petitioner intransigently refused to
abate the same.
We reject petitioner's contention that considering the Report of the EMB Team dated July 2,
2002 that the noise complained of by the respondent did not necessarily come from the blowers
but also from passing cars, it follows that respondent has no cause of action against it for
abatement of nuisance. As gleaned from the Report, the panel of investigators found that the
passing of vehicles along the street and blowers of nearby buildings were merely contributory
to the ambient noise quality in the area. To what extent the passing of vehicles contributed to
the noise is not indicated in the Report, nor is it stated that the noise coming from the blowers
of the airconditioning unit of the Feliza Building were at par with or lower than the Level
Standards under the property Rules and regulations of P.D. No. 984.
The July 2, 2002 Report of the EMB Panel should not be considered in isolation of other
Reports of the EMB since 1995 up to 2000, showing that the noise level from the blowers of
the Feliza Building exceeded the allowable level under P.D. No. 984. The July 2, 2002 Report
is not decisive on the issue of whether petitioner had abated the nuisance complained of by
respondent or that the nuisance does not exist at all. Indeed, in Velasco v. Manila Electric
Company,[67] this Court cited the ruling in Kentucky & West Virginia Power Co. v.
Anderson,[68] thus:
xxx The determinating factor when noise alone is the cause of complaint is not its intensity or
volume. It is that the noise is of such character as to produce actual physical discomfort and
annoyance to a person of ordinary sensibilities, rendering adjacent property less comfortable
and valuable. If the noise does that it can well be said to be substantial and unreasonable in
degree; and reasonableness is a question of fact dependent upon all the circumstances and
conditions. 20 R.C.L. 445, 453; Wheat Culvert Company v. Jenkins, supra. There can be no
fixed standard as to what kind of noise constitutes a nuisance. xxx
Besides, even if it is assumed for the nonce that petitioner had abated the nuisance in 2002,
still the complaint of the respondent states a cause of action for damages based upon the past
existence of the nuisance, from 1995. Where the injury from the alleged nuisance is temporary
in its nature; or is of a continuing or recurring character, the damages are ordinarily regarded
as continuing and one recovery against the wrongdoer is not a bar to sanction an action for
damages thereafter accruing from the same wrong.[69]
The Complaint of the
Respondent Not Premature
Admittedly, respondent did not appeal the July 19, 2002 letter of Engr. Morales. However, the
letter was not appealable. It bears stressing that the letter-complaint of the respondent to Mayor
Jejomar Binay against petitioner was referred to Engr. Morales for investigation of the
complaint; the latter was required to submit his Report thereon to the City Mayor for final
disposition. Engr. Morales did secure the July 2, 2002 Report of the EMB but failed to make a
Report on his findings. Until after the City Mayor shall have acted on the findings and
recommendation of Engr. Morales an appeal therefrom would be premature.
Obviously, Engr. Morales gave respondent another chance to have the EMB reverse or revise
its July 2, 2002 Report. However, when the officials of respondent sought a clarification of his
Order, Engr. Morales was piqued and even dared them to go to court if they were not satisfied
with the EMB Report. Respondent then sought another test by the EMB. In its November 24,
2003, Report, the EMB confirmed that the SPL was higher when the doors were open; as it
was, the SPL readings were taken from inside the Frabelle I. The EMB added that the noise
quality standards in Section 78 of the Implementing Rules and Regulations of P.D. No. 984
could not be applied since it is for ambient noise. It even emphasized that the SPL are not the
actual factors in the resolution of the issues. Conformably with case law, the EMB opined, noise
need not be high or low to annoy or cause nuisance to the receptor; as long as the complainant
is disturbed with the level of sound coming from the firm, the same is a nuisance. Clearly, the
EMB was of the view that the EMB Reports are not decisive on the issue between petitioner
and respondent, and that said issue is one beyond the competence of the LGUs, by implying
that the issue is a matter to be presented to and resolved by the ordinary courts. By returning
the records to Makati City, the EMB expected the City to dismiss the complaint and just allow
respondent, as complainant, to seek relief from the courts. Respondent then took its cue from
the EMB Report and filed its complaint in the RTC. There is, thus, no basis for the contention
of petitioner that respondent failed to exhaust all administrative remedies before filing its
complaint with the RTC.
Also barren of merit are the petitioner's contention that the action of respondent was barred by
the decision of the PAB AM No. 01-0009-FLC. While it is true that the Frabella 1 Condominium
Corporation filed its complaint against petitioner before the PAB for and in behalf of the
tenants/owners of units of Frabella I, including those owned by respondent, however, the PAB
dismissed the complaint on the ground of lack of jurisdiction and without prejudice. The PAB
ruled that respondent's action was for abatement of a nuisance which was already devolved to
the local government.
As gleaned from the Resolution, the dismissal was without prejudice. Since the PAB had no
jurisdiction over the complaint and the dismissal was without prejudice, respondent's action
before the RTC was not barred by res judicata or litis pendentia[70]. The decision of the PAB
was not a decision on the merits of the case.[71] Consequently, the contention of petitioner
that respondent is guilty of forum shopping has no factual basis.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. Costs against
the petitioner.
SO ORDERED.
Panganiban, C.J., (Chairperson), Ynares-Santiago, Austria-Martinez and Chico-Nazario, JJ.,
concur.
G.R. No. 148339 February 23, 2005
LUCENA GRAND CENTRAL TERMINAL, INC., petitioner,
vs.
JAC LINER, INC., Respondent.
DECISION
CARPIO MORALES, J.:
Respondent, JAC Liner, Inc., a common carrier operating buses which ply various routes to
and from Lucena City, assailed, via a petition for prohibition and injunction1 against the City of
Lucena, its Mayor, and the Sangguniang Panlungsod of Lucena before the Regional Trial Court
(RTC) of Lucena City, City Ordinance Nos. 1631 and 1778 as unconstitutional on the ground
that, inter alia, the same constituted an invalid exercise of police power, an undue taking of
private property, and a violation of the constitutional prohibition against monopolies. The salient
provisions of the ordinances are:
Ordinance No. 16312
AN ORDINANCE GRANTING THE LUCENA GRAND CENTRAL TERMINAL, INC., A
FRANCHISE TO CONSTRUCT, FINANCE, ESTABLISH, OPERATE AND MAINTAIN A
COMMON BUS-JEEPNEY TERMINAL FACILITY IN THE CITY OF LUCENA
xxx
SECTION 1. – There is hereby granted to the Lucena Grand Central Terminal, Inc., its
successors or assigns, hereinafter referred to as the "grantee", a franchise to construct,
finance, establish, operate, and maintain a common bus-jeepney terminal facility in the City of
Lucena.
SECTION 2. – This franchise shall continue for a period of twenty-five years, counted from the
approval of this Ordinance, and renewable at the option of the grantee for another period of
twenty-five (25) years upon such expiration.
xxx
SECTION 4. – Responsibilities and Obligations of the City Government of Lucena. – During
the existence of the franchise, the City Government of Lucena shall have the following
responsibilities and obligations:
xxx
(c) It shall not grant any third party any privilege and/or concession to operate a bus, mini-bus
and/or jeepney terminal.
xxx
Ordinance No. 17783
AN ORDINANCE REGULATING THE ENTRANCE TO THE CITY OF LUCENA OF ALL
BUSES, MINI-BUSES AND OUT-OF-TOWN PASSENGER JEEPNEYS AND FOR THIS
PURPOSE, AMENDING ORDINACE NO. 1420, SERIES OF 1993, AND ORDINANCE NO.
1557, SERIES OF 1995
xxx
SECTION 1. – The entrance to the City of Lucena of all buses, mini-buses and out-of-town
passenger jeepneys is hereby regulated as follows:
(a) All buses, mini-buses and out-of-town passenger jeepneys shall be prohibited from entering
the city and are hereby directed to proceed to the common terminal, for picking-up and/or
dropping of their passengers.
(b) All temporary terminals in the City of Lucena are hereby declared inoperable starting from
the effectivity of this ordinance.
xxx
SECTION 3. – a) Section 1 of Ordinance No. 1557, Series of 1995, is hereby amended to read
as follows:
Buses, mini-buses, and jeepney type mini-buses from other municipalities and/or local
government units going to Lucena City are directed to proceed to the Common Terminal
located at Diversion Road, Brgy. Ilayang Dupay, to unload and load passengers.
xxx
c) Section 3 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:
Passenger buses, mini-buses, and jeepney type mini-buses coming from other municipalities
and/or local government units shall utilize the facilities of the Lucena Grand Central Terminal
at Diversion Road, Brgy. Ilayang Dupay, this City, and no other terminals shall be situated
inside or within the City of Lucena;
d) Section 4 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:
Passenger buses, mini-buses, and jeepney type mini-buses coming from other municipalities
and/or local government units shall avail of the facilities of the Lucena Grand Central Terminal
which is hereby designated as the officially sanctioned common terminal for the City of Lucena;
e) Section 5 of Ordinance No. 1557, Series of 1995, is hereby amended to read as follows:
The Lucena Grand Central Terminal is the permanent common terminal as this is the entity
which was given the exclusive franchise by the Sangguniang Panglungsod under Ordinance
No. 1631; (Emphasis and underscoring supplied)
These ordinances, by granting an exclusive franchise for twenty five years, renewable for
another twenty five years, to one entity for the construction and operation of one common bus
and jeepney terminal facility in Lucena City, to be located outside the city proper, were
professedly aimed towards alleviating the traffic congestion alleged to have been caused by
the existence of various bus and jeepney terminals within the city, as the "Explanatory Note"-
Whereas Clause adopting Ordinance No. 1778 states:
WHEREAS, in line with the worsening traffic condition of the City of Lucena, and with the
purpose of easing and regulating the flow of the same, it is imperative that the Buses, Mini-
Buses and out-of-town jeepneys be prohibited from maintaining terminals within the City, but
instead directing to proceed to the Lucena Grand Central Terminal for purposes of picking-up
and/or dropping off their passengers;4
Respondent, who had maintained a terminal within the city, was one of those affected by the
ordinances.
Petitioner, Lucena Grand Central Terminal, Inc., claiming legal interest as the grantee of the
exclusive franchise for the operation of the common terminal,5 was allowed to intervene in the
petition before the trial court.
In the hearing conducted on November 25, 1998, all the parties agreed to dispense with the
presentation of evidence and to submit the case for resolution solely on the basis of the
pleadings filed.6
By Order of March 31, 1999,7 Branch 54 of the Lucena RTC rendered judgment, the dispositive
portion of which reads:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered, as follows:
1. Declaring City Ordinance No. 1631 as valid, having been issued in the exercise of the police
power of the City Government of Lucena insofar as the grant of franchise to the Lucena Grand
Central Terminal, Inc., to construct, finance, establish, operate and maintain common bus-
jeepney terminal facility in the City of Lucena;
2. But however, declaring the provision of Sec. 4(c) of Ordinance No. 1631 to the effect that
the City Government shall not grant any third party any privilege and/or concession to operate
a bus, mini-bus and/or jeepney terminal, as illegal and ultra vires because it contravenes the
provisions of Republic Act No. 7160, otherwise known as "The Local Government Code";
3. Declaring City Ordinance No. 1778 as null and void, the same being also an ultra vires act
of the City Government of Lucena arising from an invalid, oppressive and unreasonable
exercise of the police power, more specifically, declaring illegal [sections 1(b), 3(c) and 3(e)];
4. Ordering the issuance of a Writ of Prohibition and/or Injunction directing the respondents
public officials, the City Mayor and the Sangguniang Panglungsod of Lucena, to cease and
desist from implementing Ordinance No. 1778 insofar as said ordinance prohibits or curtails
petitioner from maintaining and operating its own bus terminal subject to the conditions
provided for in Ordinance No. 1557, Sec. 3, which authorizes the construction of terminal
outside the poblacion of Lucena City; and likewise, insofar as said ordinance directs and
compels the petitioner to use the Lucena Grand Central Terminal Inc., and furthermore, insofar
as it declares that no other terminals shall be situated, constructed, maintained or established
inside or within the City of Lucena; and furthermore,
5. The Motion to Dismiss filed by the Intervenor, Lucena Grand Central Terminal Inc., dated
October 19, 1998, is hereby DENIED for lack of merit.
SO ORDERED. (Emphasis and underscoring supplied)8
Petitioner’s Motion for Reconsideration9 of the trial court’s order having been denied by Order
of August 6, 1999,10 it elevated it via petition for review under Rule 45 before this Court.11
This Court, by Resolution of November 24, 1999,12 referred the petition to the Court of Appeals
with which it has concurrent jurisdiction, no special and important reason having been cited for
it to take cognizance thereof in the first instance.
By Decision of December 15, 2000,13 the appellate court dismissed the petition and affirmed
the challenged orders of the trial court. Its motion for reconsideration14 having been denied by
the appellate court by Resolution dated June 5, 2001,15 petitioner once again comes to this
Court via petition for review,16 this time assailing the Decision and Resolution of the Court of
Appeals.
Decision on the petition hinges on two issues, to wit: (1) whether the trial court has jurisdiction
over the case, it not having furnished the Office of the Solicitor General copy of the orders it
issued therein, and (2) whether the City of Lucena properly exercised its police power when it
enacted the subject ordinances.
Petitioner argues that since the trial court failed to serve a copy of its assailed orders upon the
Office of the Solicitor General, it never acquired jurisdiction over the case, it citing Section 22,
Rule 3 of the Rules which provides:
SEC. 22. Notice to the Solicitor General.—In any action involving the validity of any treaty, law,
ordinance, executive order, presidential decree, rules or regulations, the court in its discretion,
may require the appearance of the Solicitor General who may be heard in person or through
representative duly designated by him. (Emphasis and underscoring supplied)
Furthermore, petitioner invokes Sections 3 and 4 of Rule 63 which respectively provide:
SEC. 3. Notice on Solicitor General. – In any action which involves the validity of a statute,
executive order or regulation, or any other governmental regulation, the Solicitor General shall
be notified by the party assailing the same and shall be entitled to be heard upon such question.
SEC. 4. Local government ordinances. – In any action involving the validity of a local
government ordinance, the corresponding prosecutor or attorney of the local government unit
involved shall be similarly notified and entitled to be heard. If such ordinance is alleged to be
unconstitutional, the Solicitor General shall also be notified and entitled to be heard. (Emphasis
and underscoring supplied)
Nowhere, however, is it stated in the above-quoted rules that failure to notify the Solicitor
General about the action is a jurisdictional defect.
In fact, Rule 3, Section 22 gives the courts in any action involving the "validity" of any ordinance,
inter alia, "discretion" to notify the Solicitor General.
Section 4 of Rule 63, which more specifically deals with cases assailing the constitutionality,
not just the validity, of a local government ordinance, directs that the Solicitor General "shall
also be notified and entitled to be heard." Who will notify him, Sec. 3 of the same rule provides
— it is the party which is assailing the local government’s ordinance.
More importantly, however, this Court finds that no procedural defect, fatal or otherwise,
attended the disposition of the case. For respondent actually served a copy of its petition upon
the Office of the Solicitor General on October 1, 1998, two days after it was filed. The Solicitor
General has issued a Certification to that effect.17 There was thus compliance with above-
quoted rules.
Respecting the issue of whether police power was properly exercised when the subject
ordinances were enacted: As with the State, the local government may be considered as having
properly exercised its police power only if the following requisites are met: (1) the interests of
the public generally, as distinguished from those of a particular class, require the interference
of the State, and (2) the means employed are reasonably necessary for the attainment of the
object sought to be accomplished and not unduly oppressive upon individuals. Otherwise
stated, there must be a concurrence of a lawful subject and lawful method.18
That traffic congestion is a public, not merely a private, concern, cannot be gainsaid. In
Calalang v. Williams19 which involved a statute authorizing the Director of Public Works to
promulgate rules and regulations to regulate and control traffic on national roads, this Court
held:
In enacting said law, therefore, the National Assembly was prompted by considerations of
public convenience and welfare. It was inspired by a desire to relieve congestion of traffic,
which is, to say the least, a menace to public safety. Public welfare, then, lies at the bottom of
the enactment of said law, and the state in order to promote the general welfare may interfere
with personal liberty, with property, and with business and occupations.20 (Emphasis supplied)
The questioned ordinances having been enacted with the objective of relieving traffic
congestion in the City of Lucena, they involve public interest warranting the interference of the
State. The first requisite for the proper exercise of police power is thus present.
Respondent’s suggestion to have this Court look behind the explicit objective of the ordinances
which, to it, was actually to benefit the private interest of petitioner by coercing all bus operators
to patronize its terminal does not lie.21 Lim v. Pacquing22 instructs:
. . . [T]his Court cannot look into allegations that PD No. 771 was enacted to benefit a select
group which was later given authority to operate the jai-alai under PD No. 810. The examination
of legislative motivation is generally prohibited. (Palmer v. Thompson, 403 U.S. 217, 29 L. Ed.
2d 438 [1971] per Black, J.) There is, in the first place, absolute lack of evidence to support
ADC’s allegation of improper motivation in the issuance of PD No. 771. In the second place,
as already averred, this Court cannot go behind the expressed and proclaimed purposes of PD
No. 771, which are reasonable and even laudable. (Underscoring supplied)23
This leaves for determination the issue of whether the means employed by the Lucena
Sangguniang Panlungsod to attain its professed objective were reasonably necessary and not
unduly oppressive upon individuals.
With the aim of localizing the source of traffic congestion in the city to a single location,24 the
subject ordinances prohibit the operation of all bus and jeepney terminals within Lucena,
including those already existing, and allow the operation of only one common terminal located
outside the city proper, the franchise for which was granted to petitioner. The common carriers
plying routes to and from Lucena City are thus compelled to close down their existing terminals
and use the facilities of petitioner.
In De la Cruz v. Paras,25 this Court declared unconstitutional an ordinance characterized by
overbreadth. In that case, the Municipality of Bocaue, Bulacan prohibited the operation of all
night clubs, cabarets and dance halls within its jurisdiction for the protection of public morals.
Held the Court:
It cannot be said that such a sweeping exercise of a lawmaking power by Bocaue could qualify
under the term reasonable. The objective of fostering public morals, a worthy and desirable
end can be attained by a measure that does not encompass too wide a field. Certainly the
ordinance on its face is characterized by overbreadth. The purpose sought to be achieved
could have been attained by reasonable restrictions rather than by an absolute prohibition. The
admonition in Salaveria should be heeded: "The Judiciary should not lightly set aside legislative
action when there is not a clear invasion of personal or property rights under the guise of police
regulation." It is clear that in the guise of a police regulation, there was in this instance a clear
invasion of personal or property rights, personal in the case of those individuals desirous of
patronizing those night clubs and property in terms of the investments made and salaries to be
earned by those therein employed. (Underscoring supplied)26
In Lupangco v. Court of Appeals,27 this Court, in declaring unconstitutional the resolution
subject thereof, advanced a similar consideration. That case involved a resolution issued by
the Professional Regulation Commission which prohibited examinees from attending review
classes and receiving handout materials, tips, and the like three days before the date of
examination in order to preserve the integrity and purity of the licensure examinations in
accountancy. Besides being unreasonable on its face and violative of academic freedom, the
measure was found to be more sweeping than what was necessary, viz:
Needless to say, the enforcement of Resolution No. 105 is not a guarantee that the alleged
leakages in the licensure examinations will be eradicated or at least minimized. Making the
examinees suffer by depriving them of legitimate means of review or preparation on those last
three precious days when they should be refreshing themselves with all that they have learned
in the review classes and preparing their mental and psychological make-up for the
examination day itself — would be like uprooting the tree to get rid of a rotten branch. What is
needed to be done by the respondent is to find out the source of such leakages and stop it right
there. If corrupt officials or personnel should be terminated from their loss, then so be it. Fixers
or swindlers should be flushed out. Strict guidelines to be observed by examiners should be
set up and if violations are committed, then licenses should be suspended or revoked. x x x
(Emphasis and underscoring supplied)28
As in De la Cruz29 and Lupangco,30 the ordinances assailed herein are characterized by
overbreadth. They go beyond what is reasonably necessary to solve the traffic problem.
Additionally, since the compulsory use of the terminal operated by petitioner would subject the
users thereof to fees, rentals and charges, such measure is unduly oppressive, as correctly
found by the appellate court. 31 What should have been done was to determine exactly where
the problem lies and then to stop it right there.
The true role of Constitutional Law is to effect an equilibrium between authority and liberty so
that rights are exercised within the framework of the law and the laws are enacted with due
deference to rights. (Underscoring supplied)32
A due deference to the rights of the individual thus requires a more careful formulation of
solutions to societal problems.
From the memorandum33 filed before this Court by petitioner, it is gathered that the
Sangguniang Panlungsod had identified the cause of traffic congestion to be the indiscriminate
loading and unloading of passengers by buses on the streets of the city proper, hence, the
conclusion that the terminals contributed to the proliferation of buses obstructing traffic on the
city streets.
Bus terminals per se do not, however, impede or help impede the flow of traffic. How the
outright proscription against the existence of all terminals, apart from that franchised to
petitioner, can be considered as reasonably necessary to solve the traffic problem, this Court
has not been enlightened. If terminals lack adequate space such that bus drivers are compelled
to load and unload passengers on the streets instead of inside the terminals, then reasonable
specifications for the size of terminals could be instituted, with permits to operate the same
denied those which are unable to meet the specifications.
In the subject ordinances, however, the scope of the proscription against the maintenance of
terminals is so broad that even entities which might be able to provide facilities better than the
franchised terminal are barred from operating at all.
Petitioner argues, however, that other solutions for the traffic problem have already been tried
but proven ineffective. But the grant of an exclusive franchise to petitioner has not been shown
to be the only solution to the problem.
While the Sangguniang Panlungsod, via Ordinance No. 1557,34 previously directed bus
owners and operators to put up their terminals "outside the poblacion of Lucena City," petitioner
informs that said ordinance only resulted in the relocation of terminals to other well-populated
barangays, thereby giving rise to traffic congestion in those areas.35 Assuming that information
to be true, the Sangguniang Panlungsod was not without remedy. It could have defined, among
other considerations, in a more precise manner, the area of relocation to avoid such
consequences.
As for petitioner’s argument that the challenged ordinances were enacted pursuant to the
power of the Sangguniang Panlungsod to "[r]egulate traffic on all streets and bridges; prohibit
encroachments or obstacles thereon and, when necessary in the interest of public welfare,
authorize the removal of encroachments and illegal constructions in public places":36 Absent
any showing, nay allegation, that the terminals are encroaching upon public roads, they are not
obstacles. The buses which indiscriminately load and unload passengers on the city streets
are. The power then of the Sangguniang Panlungsod to prohibit encroachments and obstacles
does not extend to terminals.1a\^/phi1.net
Neither are terminals public nuisances as petitioner argues. For their operation is a legitimate
business which, by itself, cannot be said to be injurious to the rights of property, health, or
comfort of the community.
But even assuming that terminals are nuisances due to their alleged indirect effects upon the
flow of traffic, at most they are nuisance per accidens, not per se.
Unless a thing is nuisance per se, however, it may not be abated via an ordinance, without
judicial proceedings, as was done in the case at bar.
In Estate of Gregoria Francisco v. Court of Appeals,37 this Court held:
Respondents can not seek cover under the general welfare clause authorizing the abatement
of nuisances without judicial proceedings. That tenet applies to a nuisance per se, or one which
affects the immediate safety of persons and property and may be summarily abated under the
undefined law of necessity (Monteverde v. Generoso, 52 Phil. 123 [1982]). The storage of copra
in the quonset building is a legitimate business. By its nature, it can not be said to be injurious
to rights of property, of health or of comfort of the community. If it be a nuisance per accidens
it may be so proven in a hearing conducted for that purpose. It is not per se a nuisance
warranting its summary abatement without judicial intervention.l^vvphi1.net (Underscoring
supplied)38 1awphi1.nét
In Pampanga Bus Co., Inc. v. Municipality of Tarlac39 where the appellant-municipality
similarly argued that the terminal involved therein is a nuisance that may be abated by the
Municipal Council via an ordinance, this Court held: "Suffice it to say that in the abatement of
nuisances the provisions of the Civil Code (Articles 694-707) must be observed and followed.
This appellant failed to do."
As for petitioner’s claim that the challenged ordinances have actually been proven effective in
easing traffic congestion: Whether an ordinance is effective is an issue different from whether
it is reasonably necessary. It is its reasonableness, not its effectiveness, which bears upon its
constitutionality. If the constitutionality of a law were measured by its effectiveness, then even
tyrannical laws may be justified whenever they happen to be effective.
The Court is not unaware of the resolutions of various barangays in Lucena City supporting the
establishment of a common terminal, and similar expressions of support from the private sector,
copies of which were submitted to this Court by petitioner. The weight of popular opinion,
however, must be balanced with that of an individual’s rights.
There is no question that not even the strongest moral conviction or the most urgent public
need, subject only to a few notable exceptions, will excuse the bypassing of an individual's
rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of
the Constitution is a majority of one even as against the rest of the nation who would deny him
that right.40
WHEREFORE, the petition is hereby DENIED.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ.,
concur.
G.R. No. 148408 July 14, 2006
CONCEPCION PARAYNO, petitioner,
vs.
JOSE JOVELLANOS and the MUNICIPALITY OF CALASIAO, PANGASINAN,*
respondents.
DECISION
CORONA, J.:
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Court questioning
the resolution of the Court of Appeals (CA) which dismissed the petition for certiorari,
mandamus and prohibition, with prayer for issuance of a preliminary and mandatory injunction,
filed by petitioner Concepcion Parayno against respondents Jose Jovellanos and the
Municipality of Calasiao, Pangasinan.
Petitioner was the owner of a gasoline filling station in Calasiao, Pangasinan. In 1989, some
residents of Calasiao petitioned the Sangguniang Bayan (SB) of said municipality for the
closure or transfer of the station to another location. The matter was referred to the Municipal
Engineer, Chief of Police, Municipal Health Officer and the Bureau of Fire Protection for
investigation. Upon their advise, the Sangguniang Bayan recommended to the Mayor the
closure or transfer of location of petitioner's gasoline station. In Resolution No. 50, it declared:
a) xxx the existing gasoline station is a blatant violation and disregard of existing law to wit:
The Official Zoning Code of Calasiao, Art. 6, Section 44,1 the nearest school building which is
San Miguel Elementary School and church, the distances are less than 100 meters. No
neighbors were called as witnesses when actual measurements were done by HLURB Staff,
Baguio City dated 22 June 1989.
b) The gasoline station remains in thickly populated area with commercial/residential buildings,
houses closed (sic) to each other which still endangers the lives and safety of the people in
case of fire. Moreover, additional selling and storing of several LPG tanks in the station (sic).
c) The residents of our barangay always complain of the irritating smell of gasoline most of the
time especially during gas filling which tend to expose residents especially children to frequent
colds, asthma, cough and the like nowadays.
d) xxx the gasoline station violated Building and Fire Safety Codes because the station has
2nd floor storey building used for business rental offices, with iron grilled windows, no firewalls.
It also endangers the lives of people upstairs.
e) It hampers the flow of traffic, the gasoline station is too small and narrow, the entrance and
exit are closed to the street property lines. It couldn't cope situation (sic) on traffic because the
place is a congested area.2
Petitioner moved for the reconsideration of the SB resolution but it was denied. Hence, she
filed a special civil action for prohibition and mandamus with the Regional Trial Court (RTC) of
Dagupan City, Branch 44 against respondents. The case, docketed as SP Civil Case No. 99-
03010-D, was raffled to the sala of Judge Crispin Laron.
Petitioner claimed that her gasoline station was not covered by Section 44 of the Official Zoning
Code since it was not a "gasoline service station" but a "gasoline filling station" governed by
Section 21 thereof. She added that the decision of the Housing and Land Use Regulatory Board
(HLURB),3 in a previous case filed by the same respondent Jovellanos against her
predecessor (Dennis Parayno), barred the grounds invoked by respondent municipality in
Resolution No. 50. In the HLURB case, respondent Jovellanos opposed the establishment of
the gas station on the grounds that: (1) it was within the 100-meter prohibited radius under
Section 44 and (2) it posed a pernicious effect on the health and safety of the people in
Calasiao.
After the hearing on the propriety of issuing a writ of preliminary prohibitory and mandatory
injunction, the trial court ruled:
There is no basis for the court to issue a writ of preliminary prohibitory and mandatory
injunction. Albeit, Section 44 of the Official Zoning Code of respondent municipality does not
mention a gasoline filling station, [but] following the principle of ejusdem generis, a gasoline
filling station falls within the ambit of Section 44.
The gasoline filling station of the petitioner is located under the establishment belonging to the
petitioner and is very near several buildings occupied by several persons. Justice dictates that
the same should not be allowed to continue operating its business on that particular place.
Further, the gasoline filling station endangers the lives and safety of people because once there
is fire, the establishment and houses nearby will be razed to the ground.4(emphasis supplied)
Petitioner moved for reconsideration of the decision but it was denied by the trial court.
Petitioner elevated the case to the CA via a petition for certiorari, prohibition and mandamus,5
with a prayer for injunctive relief. She ascribed grave abuse of discretion, amounting to lack or
excess of jurisdiction, on the part of Judge Laron who dismissed her case.
After the CA dismissed the petition, petitioner filed a motion for reconsideration but the same
was denied. Hence, this appeal.
Before us, petitioner insists that (1) the legal maxim of ejusdem generis did not apply to her
case; (2) the closure/transfer of her gasoline filling station by respondent municipality was an
invalid exercise of the latter's police powers and (3) it was the principle of res judicata that
applied in this case.6
We find merit in the petition.
The Principle of Ejusdem Generis 1. That there exist[ed] an official zoning code of Calasiao, Pangasinan which [was] not yet
amended;
We hold that the zoning ordinance of respondent municipality made a clear distinction between
"gasoline service station" and "gasoline filling station." The pertinent provisions read: 2. That under Article III of said official zoning code there [were] certain distinctions made by
said municipality about the designation of the gasoline filling station and that of the gasoline
xxx xxx xxx service station as appearing in Article III, Nos. 21 and 42, [respectively];

Section 21. Filling Station. A retail station servicing automobiles and other motor vehicles with
gasoline and oil only.7
xxx xxx xxx
Section 42. Service Station. A building and its premises where gasoline oil, grease, batteries,
tires and car accessories may be supplied and dispensed at retail and where, in addition, the
following services may be rendered and sales and no other.
a. Sale and servicing of spark plugs, batteries, and distributor parts;
b. Tire servicing and repair, but not recapping or regrooving;
c. Replacement of mufflers and tail pipes, water hose, fan belts, brake fluids, light bulbs, fuses,
floor mats, seat covers, windshield wipers and wiper blades, grease retainers, wheel, bearing,
mirrors and the like;
d. Radiator cleaning and flushing;
e. Washing and polishing, and sale of automobile washing and polishing materials;
3. That the business of the petitioner [was] one of a gasoline filling station as defined in Article
III, Section 21 of the zoning code and not as a service station as differently defined under Article
42 of the said official zoning code;
4. That under Section 44 of the official zoning code of Calasiao, the term filling station as clearly
defined under Article III, Section 21, [did] not appear in the wordings thereof;9(emphasis
supplied)
The foregoing were judicial admissions which were conclusive on the municipality, the party
making them.10 Respondent municipality thus could not find solace in the legal maxim of
ejusdem generis11 which means "of the same kind, class or nature." Under this maxim, where
general words follow the enumeration of particular classes of persons or things, the general
words will apply only to persons or things of the same general nature or class as those
enumerated.12 Instead, what applied in this case was the legal maxim expressio unius est
exclusio alterius which means that the express mention of one thing implies the exclusion of
others.13 Hence, because of the distinct and definite meanings alluded to the two terms by the
zoning ordinance, respondents could not insist that "gasoline service station" under Section 44
necessarily included "gasoline filling station" under Section 21. Indeed, the activities
undertaken in a "gas service station" did not automatically embrace those in a "gas filling
station."

f. Grease and lubricating; The Exercise of Police Powers

g. Emergency wiring repairs; Respondent municipality invalidly used its police powers in ordering the closure/transfer of
petitioner's gasoline station. While it had, under RA 7160,14 the power to take actions and
h. Minor servicing of carburators; enact measures to promote the health and general welfare of its constituents, it should have
given due deference to the law and the rights of petitioner.
i. Adjusting and repairing brakes;
A local government is considered to have properly exercised its police powers only when the
j. Minor motor adjustments not involving removal of the head or crankcase, or raising the following requisites are met: (1) the interests of the public generally, as distinguished from
motor.8 those of a particular class, require the interference of the State and (2) the means employed
are reasonably necessary for the attainment of the object sought to be accomplished and not
xxx xxx xxx unduly oppressive.15 The first requirement refers to the equal protection clause and the
second, to the due process clause of the Constitution.16
It is evident from the foregoing that the ordinance intended these two terms to be separate and
distinct from each other. Even respondent municipality's counsel admitted this dissimilarity Respondent municipality failed to comply with the due process clause when it passed
during the hearing on the application for the issuance of a writ of preliminary prohibitory and Resolution No. 50. While it maintained that the gasoline filling station of petitioner was less
mandatory injunction. Counsel in fact admitted: than 100 meters from the nearest public school and church, the records do not show that it
even attempted to measure the distance, notwithstanding that such distance was crucial in
determining whether there was an actual violation of Section 44. The different local offices that
respondent municipality tapped to conduct an investigation never conducted such
measurement either.
Moreover, petitioner's business could not be considered a nuisance which respondent
municipality could summarily abate in the guise of exercising its police powers. The abatement
of a nuisance without judicial proceedings is possible only if it is a nuisance per se. A gas
station is not a nuisance per se or one affecting the immediate safety of persons and
property,17 hence, it cannot be closed down or transferred summarily to another location.
As a rule, this Court does not pass upon evidence submitted by the parties in the lower
courts.18 We deem it necessary, however, to recall the findings of the HLURB which petitioner
submitted as evidence during the proceedings before the trial court, if only to underscore
petitioner's compliance with the requirements of law before she put up her gasoline station.
Another factor that should not be left unnoticed is the diligence exercised by [petitioner] in
complying with the requirements of the several laws prior to the actual implementation of the
project as can be attested by the fact that [petitioner] has secured the necessary building permit
and approval of [her] application for authority to relocate as per the letter of the Energy
Regulatory Board xxx.19
On the alleged hazardous effects of the gasoline station to the lives and properties of the people
of Calasiao, we again note:
Relative to the allegations that the project (gasoline station) is hazardous to life and property,
the Board takes cognizance of the respondent's contention that the project "is not a fire hazard
since petroleum products shall be safely stored in underground tanks and that the installation
and construction of the underground tanks shall be in accordance with the Caltex Engineering
Procedures which is true to all gasoline stations in the country. xxx
Hence, the Board is inclined to believe that the project being hazardous to life and property is
more perceived than factual. For, after all, even the Fire Station Commander, after studying
the plans and specifications of the subject proposed construction, recommended on 20 January
1989, "to build such buildings after conform (sic) all the requirements of PP 1185." It is further
alleged by the complainants that the proposed location is "in the heart of the thickly populated
residential area of Calasiao." Again, findings of the [HLURB] staff negate the allegations as the
same is within a designated Business/Commercial Zone per the Zoning Ordinance. xxx20
(emphasis supplied)
The findings of fact of the HLURB are binding as they are already final and conclusive vis-à-
vis the evidence submitted by respondents.
The Principle of Res Judicata
Petitioner points out that the HLURB decision in the previous case filed against her predecessor
(Dennis Parayno) by respondent Jovellanos had effectively barred the issues in Resolution No.
50 based on the principle of res judicata. We agree.
Res judicata refers to the rule that a final judgment or decree on the merits by a court of
competent jurisdiction is conclusive of the rights of the parties or their privies in all later suits
on all points and matters determined in the former suit.21 For res judicata to apply, the following
elements must be present: (1) the judgment or order must be final; (2) the judgment must be
on the merits; (3) it must have been rendered by a court having jurisdiction over the subject
matter and the parties and (4) there must be, between the first and second actions, identity of
parties, of subject matter and of cause of action.22
Respondent municipality does not contest the first, second and third requisites. However, it
claims that it was not a party to the HLURB case but only its co-respondent Jovellanos, hence,
the fourth requisite was not met. The argument is untenable.
The absolute identity of parties is not required for the principle of res judicata to apply.23 A
shared identity of interests is sufficient to invoke the application of this principle.24 The
proscription may not be evaded by the mere expedient of including an additional party.25 Res
judicata may lie as long as there is a community of interests between a party in the first case
and a party in the second case although the latter may not have been impleaded in the first.26
In the assailed resolution of respondent municipality, it raised the same grounds invoked by its
co-respondent in the HLURB: (1) that the resolution aimed to close down or transfer the
gasoline station to another location due to the alleged violation of Section 44 of the zoning
ordinance and (2) that the hazards of said gasoline station threatened the health and safety of
the public. The HLURB had already settled these concerns and its adjudication had long
attained finality. It is to the interest of the public that there should be an end to litigation by the
parties over a subject matter already fully and fairly adjudged. Furthermore, an individual
should not be vexed twice for the same cause.27
WHEREFORE, the petition is hereby GRANTED. The assailed resolution of the Court of the
Appeals is REVERSED and SET ASIDE. Respondent Municipality of Calasiao is hereby
directed to cease and desist from enforcing Resolution No. 50 against petitioner insofar as it
seeks to close down or transfer her gasoline station to another location.
No costs.
SO ORDERED.
Puno, Chairperson, Sandoval-Gutierrez, Azcuna, Garcia, J.J., concur.
G.R. No. 118127 April 12, 2005
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, HON.
JOSELITO L. ATIENZA, in his capacity as Vice-Mayor of the City of Manila and Presiding
Officer of the City Council of Manila, HON. ERNESTO A. NIEVA, HON. GONZALO P.
GONZALES, HON. AVELINO S. CAILIAN, HON. ROBERTO C. OCAMPO, HON. ALBERTO
DOMINGO, HON. HONORIO U. LOPEZ, HON. FRANCISCO G. VARONA, JR., HON.
ROMUALDO S. MARANAN, HON. NESTOR C. PONCE, JR., HON. HUMBERTO B. BASCO,
HON. FLAVIANO F. CONCEPCION, JR., HON. ROMEO G. RIVERA, HON. MANUEL M.
ZARCAL, HON. PEDRO S. DE JESUS, HON. BERNARDITO C. ANG, HON. MANUEL L.
QUIN, HON. JHOSEP Y. LOPEZ, HON. CHIKA G. GO, HON. VICTORIANO A. MELENDEZ,
HON. ERNESTO V.P. MACEDA, JR., HON. ROLANDO P. NIETO, HON. DANILO V.
ROLEDA, HON. GERINO A. TOLENTINO, JR., HON. MA. PAZ E. HERRERA, HON. JOEY
D. HIZON, HON. FELIXBERTO D. ESPIRITU, HON. KARLO Q. BUTIONG, HON. ROGELIO
P. DELA PAZ, HON. BERNARDO D. RAGAZA, HON. MA. CORAZON R. CABALLES, HON.
CASIMIRO C. SISON, HON. BIENVINIDO M. ABANTE, JR., HON. MA. LOURDES M. ISIP,
HON. ALEXANDER S. RICAFORT, HON. ERNESTO F. RIVERA, HON. LEONARDO L.
ANGAT, and HON. JOCELYN B. DAWIS, in their capacity as councilors of the City of
Manila, Petitioner,
vs.
HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE
TOURIST DEVELOPMENT CORPORATION, Respondents.
DECISION
TINGA, J.:
I know only that what is moral is what you feel good after and what is immoral is what you feel
bad after.
Ernest Hermingway
Death in the Afternoon, Ch. 1
It is a moral and political axiom that any dishonorable act, if performed by oneself, is less
immoral than if performed by someone else, who would be well-intentioned in his dishonesty.
J. Christopher Gerald
Bonaparte in Egypt, Ch. I
The Court's commitment to the protection of morals is secondary to its fealty to the fundamental
law of the land. It is foremost a guardian of the Constitution but not the conscience of
individuals. And if it need be, the Court will not hesitate to "make the hammer fall, and heavily"
in the words of Justice Laurel, and uphold the constitutional guarantees when faced with laws
that, though not lacking in zeal to promote morality, nevertheless fail to pass the test of
constitutionality.
The pivotal issue in this Petition1 under Rule 45 (then Rule 42) of the Revised Rules on Civil
Procedure seeking the reversal of the Decision2 in Civil Case No. 93-66511 of the Regional
Trial Court (RTC) of Manila, Branch 18 (lower court),3 is the validity of Ordinance No. 7783
(the Ordinance) of the City of Manila.4
The antecedents are as follows:
Private respondent Malate Tourist Development Corporation (MTDC) is a corporation engaged
in the business of operating hotels, motels, hostels and lodging houses.5 It built and opened
Victoria Court in Malate which was licensed as a motel although duly accredited with the
Department of Tourism as a hotel.6 On 28 June 1993, MTDC filed a Petition for Declaratory
Relief with Prayer for a Writ of Preliminary Injunction and/or Temporary Restraining Order7
(RTC Petition) with the lower court impleading as defendants, herein petitioners City of Manila,
Hon. Alfredo S. Lim (Lim), Hon. Joselito L. Atienza, and the members of the City Council of
Manila (City Council). MTDC prayed that the Ordinance, insofar as it includes motels and inns
as among its prohibited establishments, be declared invalid and unconstitutional.8
Enacted by the City Council9 on 9 March 1993 and approved by petitioner City Mayor on 30
March 1993, the said Ordinance is entitled–
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES
PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND
FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION
THEREOF, AND FOR OTHER PURPOSES.10
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no
person, partnership, corporation or entity shall, in the Ermita-Malate area bounded by Teodoro
M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito Cruz Street in the South and
Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or authorized to contract and
engage in, any business providing certain forms of amusement, entertainment, services and
facilities where women are used as tools in entertainment and which tend to disturb the
community, annoy the inhabitants, and adversely affect the social and moral welfare of the
community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
4. Beerhouses
5. Night Clubs
6. Day Clubs 11. Businesses allowable within the law and medium intensity districts as provided for in the
zoning ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock
7. Super Clubs or yard, motor repair shop, gasoline service station, light industry with any machinery, or funeral
establishments.
8. Discotheques
SEC. 4. Any person violating any provisions of this ordinance, shall upon conviction, be
9. Cabarets punished by imprisonment of one (1) year or fine of FIVE THOUSAND (P5,000.00) PESOS, or
both, at the discretion of the Court, PROVIDED, that in case of juridical person, the President,
10. Dance Halls the General Manager, or person-in-charge of operation shall be liable thereof; PROVIDED
FURTHER, that in case of subsequent violation and conviction, the premises of the erring
11. Motels establishment shall be closed and padlocked permanently.

12. Inns SEC. 5. This ordinance shall take effect upon approval.

SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials Enacted by the City Council of Manila at its regular session today, March 9, 1993.
are prohibited from issuing permits, temporary or otherwise, or from granting licenses and
accepting payments for the operation of business enumerated in the preceding section. Approved by His Honor, the Mayor on March 30, 1993. (Emphasis supplied)

SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses In the RTC Petition, MTDC argued that the Ordinance erroneously and improperly included in
enumerated in Section 1 hereof are hereby given three (3) months from the date of approval its enumeration of prohibited establishments, motels and inns such as MTDC's Victoria Court
of this ordinance within which to wind up business operations or to transfer to any place outside considering that these were not establishments for "amusement" or "entertainment" and they
of the Ermita-Malate area or convert said businesses to other kinds of business allowable within were not "services or facilities for entertainment," nor did they use women as "tools for
the area, such as but not limited to: entertainment," and neither did they "disturb the community," "annoy the inhabitants" or
"adversely affect the social and moral welfare of the community."11
1. Curio or antique shop
MTDC further advanced that the Ordinance was invalid and unconstitutional for the following
2. Souvenir Shops reasons: (1) The City Council has no power to prohibit the operation of motels as Section 458
(a) 4 (iv)12 of the Local Government Code of 1991 (the Code) grants to the City Council only
3. Handicrafts display centers the power to regulate the establishment, operation and maintenance of hotels, motels, inns,
pension houses, lodging houses and other similar establishments; (2) The Ordinance is void
4. Art galleries as it is violative of Presidential Decree (P.D.) No. 49913 which specifically declared portions of
the Ermita-Malate area as a commercial zone with certain restrictions; (3) The Ordinance does
5. Records and music shops not constitute a proper exercise of police power as the compulsory closure of the motel
business has no reasonable relation to the legitimate municipal interests sought to be
6. Restaurants protected; (4) The Ordinance constitutes an ex post facto law by punishing the operation of
Victoria Court which was a legitimate business prior to its enactment; (5) The Ordinance
7. Coffee shops violates MTDC's constitutional rights in that: (a) it is confiscatory and constitutes an invasion of
plaintiff's property rights; (b) the City Council has no power to find as a fact that a particular
8. Flower shops thing is a nuisance per se nor does it have the power to extrajudicially destroy it; and (6) The
Ordinance constitutes a denial of equal protection under the law as no reasonable basis exists
9. Music lounge and sing-along restaurants, with well-defined activities for wholesome family for prohibiting the operation of motels and inns, but not pension houses, hotels, lodging houses
entertainment that cater to both local and foreign clientele. or other similar establishments, and for prohibiting said business in the Ermita-Malate area but
not outside of this area.14
10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows,
stage and theatrical plays, art exhibitions, concerts and the like. In their Answer15 dated 23 July 1993, petitioners City of Manila and Lim maintained that the
City Council had the power to "prohibit certain forms of entertainment in order to protect the
social and moral welfare of the community" as provided for in Section 458 (a) 4 (vii) of the Local
Government Code,16 which reads, thus:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate
funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided for under Section 22
of this Code, and shall:
....
(4) Regulate activities relative to the use of land, buildings and structures within the city in order
to promote the general welfare and for said purpose shall:
....
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools, public dancing
schools, public dance halls, sauna baths, massage parlors, and other places for entertainment
or amusement; regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants, or require the
suspension or suppression of the same; or, prohibit certain forms of amusement or
entertainment in order to protect the social and moral welfare of the community.
Citing Kwong Sing v. City of Manila,17 petitioners insisted that the power of regulation spoken
of in the above-quoted provision included the power to control, to govern and to restrain places
of exhibition and amusement.18
Petitioners likewise asserted that the Ordinance was enacted by the City Council of Manila to
protect the social and moral welfare of the community in conjunction with its police power as
found in Article III, Section 18(kk) of Republic Act No. 409,19 otherwise known as the Revised
Charter of the City of Manila (Revised Charter of Manila)20 which reads, thus:
ARTICLE III
THE MUNICIPAL BOARD
. . .
Section 18. Legislative powers. – The Municipal Board shall have the following legislative
powers:
. . .
(kk) To enact all ordinances it may deem necessary and proper for the sanitation and safety,
the furtherance of the prosperity, and the promotion of the morality, peace, good order, comfort,
convenience, and general welfare of the city and its inhabitants, and such others as may be
necessary to carry into effect and discharge the powers and duties conferred by this chapter;
and to fix penalties for the violation of ordinances which shall not exceed two hundred pesos
fine or six months' imprisonment, or both such fine and imprisonment, for a single offense.
Further, the petitioners noted, the Ordinance had the presumption of validity; hence, private
respondent had the burden to prove its illegality or unconstitutionality.21
Petitioners also maintained that there was no inconsistency between P.D. 499 and the
Ordinance as the latter simply disauthorized certain forms of businesses and allowed the
Ermita-Malate area to remain a commercial zone.22 The Ordinance, the petitioners likewise
claimed, cannot be assailed as ex post facto as it was prospective in operation.23 The
Ordinance also did not infringe the equal protection clause and cannot be denounced as class
legislation as there existed substantial and real differences between the Ermita-Malate area
and other places in the City of Manila.24
On 28 June 1993, respondent Judge Perfecto A.S. Laguio, Jr. (Judge Laguio) issued an ex-
parte temporary restraining order against the enforcement of the Ordinance.25 And on 16 July
1993, again in an intrepid gesture, he granted the writ of preliminary injunction prayed for by
MTDC.26
After trial, on 25 November 1994, Judge Laguio rendered the assailed Decision, enjoining the
petitioners from implementing the Ordinance. The dispositive portion of said Decision reads:27
WHEREFORE, judgment is hereby rendered declaring Ordinance No. 778[3], Series of 1993,
of the City of Manila null and void, and making permanent the writ of preliminary injunction that
had been issued by this Court against the defendant. No costs.
SO ORDERED.28
Petitioners filed with the lower court a Notice of Appeal29 on 12 December 1994, manifesting
that they are elevating the case to this Court under then Rule 42 on pure questions of law.30
On 11 January 1995, petitioners filed the present Petition, alleging that the following errors
were committed by the lower court in its ruling: (1) It erred in concluding that the subject
ordinance is ultra vires, or otherwise, unfair, unreasonable and oppressive exercise of police
power; (2) It erred in holding that the questioned Ordinance contravenes P.D. 49931 which
allows operators of all kinds of commercial establishments, except those specified therein; and
(3) It erred in declaring the Ordinance void and unconstitutional.32
In the Petition and in its Memorandum,33 petitioners in essence repeat the assertions they
made before the lower court. They contend that the assailed Ordinance was enacted in the
exercise of the inherent and plenary power of the State and the general welfare clause
exercised by local government units provided for in Art. 3, Sec. 18 (kk) of the Revised Charter
of Manila and conjunctively, Section 458 (a) 4 (vii) of the Code.34 They allege that the
Ordinance is a valid exercise of police power; it does not contravene P.D. 499; and that it enjoys
the presumption of validity.35
In its Memorandum36 dated 27 May 1996, private respondent maintains that the Ordinance is
ultra vires and that it is void for being repugnant to the general law. It reiterates that the
questioned Ordinance is not a valid exercise of police power; that it is violative of due process,
confiscatory and amounts to an arbitrary interference with its lawful business; that it is violative
of the equal protection clause; and that it confers on petitioner City Mayor or any officer
unregulated discretion in the execution of the Ordinance absent rules to guide and control his
actions.
This is an opportune time to express the Court's deep sentiment and tenderness for the Ermita-
Malate area being its home for several decades. A long-time resident, the Court witnessed the
area's many turn of events. It relished its glory days and endured its days of infamy. Much as
the Court harks back to the resplendent era of the Old Manila and yearns to restore its lost
grandeur, it believes that the Ordinance is not the fitting means to that end. The Court is of the
opinion, and so holds, that the lower court did not err in declaring the Ordinance, as it did, ultra
vires and therefore null and void.
The Ordinance is so replete with constitutional infirmities that almost every sentence thereof
violates a constitutional provision. The prohibitions and sanctions therein transgress the
cardinal rights of persons enshrined by the Constitution. The Court is called upon to shelter
these rights from attempts at rendering them worthless.
The tests of a valid ordinance are well established. A long line of decisions has held that for an
ordinance to be valid, it must not only be within the corporate powers of the local government
unit to enact and must be passed according to the procedure prescribed by law, it must also
conform to the following substantive requirements: (1) must not contravene the Constitution or
any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4)
must not prohibit but may regulate trade; (5) must be general and consistent with public policy;
and (6) must not be unreasonable.37
Anent the first criterion, ordinances shall only be valid when they are not contrary to the
Constitution and to the laws.38 The Ordinance must satisfy two requirements: it must pass
muster under the test of constitutionality and the test of consistency with the prevailing laws.
That ordinances should be constitutional uphold the principle of the supremacy of the
Constitution. The requirement that the enactment must not violate existing law gives stress to
the precept that local government units are able to legislate only by virtue of their derivative
legislative power, a delegation of legislative power from the national legislature. The delegate
cannot be superior to the principal or exercise powers higher than those of the latter.39
This relationship between the national legislature and the local government units has not been
enfeebled by the new provisions in the Constitution strengthening the policy of local autonomy.
The national legislature is still the principal of the local government units, which cannot defy its
will or modify or violate it.40
The Ordinance was passed by the City Council in the exercise of its police power, an enactment
of the City Council acting as agent of Congress. Local government units, as agencies of the
State, are endowed with police power in order to effectively accomplish and carry out the
declared objects of their creation.41 This delegated police power is found in Section 16 of the
Code, known as the general welfare clause, viz:
SECTION 16. General Welfare. Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers necessary,
appropriate, or incidental for its efficient and effective governance, and those which are
essential to the promotion of the general welfare. Within their respective territorial jurisdictions,
local government units shall ensure and support, among other things, the preservation and
enrichment of culture, promote health and safety, enhance the right of the people to a balanced
ecology, encourage and support the development of appropriate and self-reliant scientific and
technological capabilities, improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
Local government units exercise police power through their respective legislative bodies; in this
case, the sangguniang panlungsod or the city council. The Code empowers the legislative
bodies to "enact ordinances, approve resolutions and appropriate funds for the general welfare
of the province/city/municipality and its inhabitants pursuant to Section 16 of the Code and in
the proper exercise of the corporate powers of the province/city/ municipality provided under
the Code.42 The inquiry in this Petition is concerned with the validity of the exercise of such
delegated power.
The Ordinance contravenes
the Constitution
The police power of the City Council, however broad and far-reaching, is subordinate to the
constitutional limitations thereon; and is subject to the limitation that its exercise must be
reasonable and for the public good.43 In the case at bar, the enactment of the Ordinance was
an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and
the promotion of the general welfare are essential for the enjoyment by all the people of the
blessings of democracy.44
SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the
fundamental equality before the law of women and men.45
SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor
shall any person be denied the equal protection of laws.46
Sec. 9. Private property shall not be taken for public use without just compensation.47

A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat "(N)o person shall be
deprived of life, liberty or property without due process of law. . . ."48
There is no controlling and precise definition of due process. It furnishes though a standard to
which governmental action should conform in order that deprivation of life, liberty or property,
in each appropriate case, be valid. This standard is aptly described as a responsiveness to
the supremacy of reason, obedience to the dictates of justice,49 and as such it is a limitation
upon the exercise of the police power.50
The purpose of the guaranty is to prevent governmental encroachment against the life, liberty
and property of individuals; to secure the individual from the arbitrary exercise of the powers of
the government, unrestrained by the established principles of private rights and distributive
justice; to protect property from confiscation by legislative enactments, from seizure, forfeiture,
and destruction without a trial and conviction by the ordinary mode of judicial procedure; and
to secure to all persons equal and impartial justice and the benefit of the general law.51
The guaranty serves as a protection against arbitrary regulation, and private corporations and
partnerships are "persons" within the scope of the guaranty insofar as their property is
concerned.52
This clause has been interpreted as imposing two separate limits on government, usually called
"procedural due process" and "substantive due process."
Procedural due process, as the phrase implies, refers to the procedures that the government
must follow before it deprives a person of life, liberty, or property. Classic procedural due
process issues are concerned with what kind of notice and what form of hearing the
government must provide when it takes a particular action.53
Substantive due process, as that phrase connotes, asks whether the government has an
adequate reason for taking away a person's life, liberty, or property. In other words, substantive
due process looks to whether there is a sufficient justification for the government's action.54
Case law in the United States (U.S.) tells us that whether there is such a justification depends
very much on the level of scrutiny used.55 For example, if a law is in an area where only rational
basis review is applied, substantive due process is met so long as the law is rationally related
to a legitimate government purpose. But if it is an area where strict scrutiny is used, such as
for protecting fundamental rights, then the government will meet substantive due process only
if it can prove that the law is necessary to achieve a compelling government purpose.56
The police power granted to local government units must always be exercised with utmost
observance of the rights of the people to due process and equal protection of the law. Such
power cannot be exercised whimsically, arbitrarily or despotically57 as its exercise is subject
to a qualification, limitation or restriction demanded by the respect and regard due to the
prescription of the fundamental law, particularly those forming part of the Bill of Rights.
Individual rights, it bears emphasis, may be adversely affected only to the extent that may fairly
be required by the legitimate demands of public interest or public welfare.58 Due process
requires the intrinsic validity of the law in interfering with the rights of the person to his life,
liberty and property.59
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the enactment of the
Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear
that the interests of the public generally, as distinguished from those of a particular class,
require an interference with private rights, but the means adopted must be reasonably
necessary for the accomplishment of the purpose and not unduly oppressive upon
individuals.60 It must be evident that no other alternative for the accomplishment of the purpose
less intrusive of private rights can work. A reasonable relation must exist between the purposes
of the police measure and the means employed for its accomplishment, for even under the
guise of protecting the public interest, personal rights and those pertaining to private property
will not be permitted to be arbitrarily invaded.61
Lacking a concurrence of these two requisites, the police measure shall be struck down as an
arbitrary intrusion into private rights62 a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned by the
establishments in the Ermita-Malate area which are allegedly operated under the deceptive
veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses,
cocktail lounges, hotels and motels. Petitioners insist that even the Court in the case of Ermita-
Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila63 had already
taken judicial notice of the "alarming increase in the rate of prostitution, adultery and fornication
in Manila traceable in great part to existence of motels, which provide a necessary atmosphere
for clandestine entry, presence and exit and thus become the ideal haven for prostitutes and
thrill-seekers."64
The object of the Ordinance was, accordingly, the promotion and protection of the social and
moral values of the community. Granting for the sake of argument that the objectives of the
Ordinance are within the scope of the City Council's police powers, the means employed for
the accomplishment thereof were unreasonable and unduly oppressive.
It is undoubtedly one of the fundamental duties of the City of Manila to make all reasonable
regulations looking to the promotion of the moral and social values of the community. However,
the worthy aim of fostering public morals and the eradication of the community's social ills can
be achieved through means less restrictive of private rights; it can be attained by reasonable
restrictions rather than by an absolute prohibition. The closing down and transfer of businesses
or their conversion into businesses "allowed" under the Ordinance have no reasonable relation
to the accomplishment of its purposes. Otherwise stated, the prohibition of the enumerated
establishments will not per se protect and promote the social and moral welfare of the
community; it will not in itself eradicate the alluded social ills of prostitution, adultery, fornication
nor will it arrest the spread of sexual disease in Manila.
Conceding for the nonce that the Ermita-Malate area teems with houses of ill-repute and
establishments of the like which the City Council may lawfully prohibit,65 it is baseless and
insupportable to bring within that classification sauna parlors, massage parlors, karaoke bars,
night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns. This
is not warranted under the accepted definitions of these terms. The enumerated establishments
are lawful pursuits which are not per se offensive to the moral welfare of the community.
That these are used as arenas to consummate illicit sexual affairs and as venues to further the
illegal prostitution is of no moment. We lay stress on the acrid truth that sexual immorality,
being a human frailty, may take place in the most innocent of places that it may even take place
in the substitute establishments enumerated under Section 3 of the Ordinance. If the flawed
logic of the Ordinance were to be followed, in the remote instance that an immoral sexual act
transpires in a church cloister or a court chamber, we would behold the spectacle of the City of
Manila ordering the closure of the church or court concerned. Every house, building, park,
curb, street or even vehicles for that matter will not be exempt from the prohibition. Simply
because there are no "pure" places where there are impure men. Indeed, even the Scripture
and the Tradition of Christians churches continually recall the presence and universality of sin
in man's history.66
The problem, it needs to be pointed out, is not the establishment, which by its nature cannot
be said to be injurious to the health or comfort of the community and which in itself is amoral,
but the deplorable human activity that may occur within its premises. While a motel may be
used as a venue for immoral sexual activity, it cannot for that reason alone be punished. It
cannot be classified as a house of ill-repute or as a nuisance per se on a mere likelihood or a
naked assumption. If that were so and if that were allowed, then the Ermita-Malate area would
not only be purged of its supposed social ills, it would be extinguished of its soul as well as
every human activity, reprehensible or not, in its every nook and cranny would be laid bare to
the estimation of the authorities.
The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try
as the Ordinance may to shape morality, it should not foster the illusion that it can make a moral
man out of it because immorality is not a thing, a building or establishment; it is in the hearts of
men. The City Council instead should regulate human conduct that occurs inside the
establishments, but not to the detriment of liberty and privacy which are covenants, premiums
and blessings of democracy.
While petitioners' earnestness at curbing clearly objectionable social ills is commendable, they
unwittingly punish even the proprietors and operators of "wholesome," "innocent"
establishments. In the instant case, there is a clear invasion of personal or property rights,
personal in the case of those individuals desirous of owning, operating and patronizing those
motels and property in terms of the investments made and the salaries to be paid to those
therein employed. If the City of Manila so desires to put an end to prostitution, fornication and
other social ills, it can instead impose reasonable regulations such as daily inspections of the
establishments for any violation of the conditions of their licenses or permits; it may exercise
its authority to suspend or revoke their licenses for these violations;67 and it may even impose
increased license fees. In other words, there are other means to reasonably accomplish the
desired end.
Means employed are
constitutionally infirm
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars,
beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels
and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the
enumerated establishments are given three (3) months from the date of approval of the
Ordinance within which "to wind up business operations or to transfer to any place outside the
Ermita-Malate area or convert said businesses to other kinds of business allowable within the
area." Further, it states in Section 4 that in cases of subsequent violations of the provisions of
the Ordinance, the "premises of the erring establishment shall be closed and padlocked
permanently."
It is readily apparent that the means employed by the Ordinance for the achievement of its
purposes, the governmental interference itself, infringes on the constitutional guarantees of a
person's fundamental right to liberty and property.
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right
to exist and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed
into mere freedom from physical restraint of the person of the citizen, but is deemed to embrace
the right of man to enjoy the facilities with which he has been endowed by his Creator, subject
only to such restraint as are necessary for the common welfare."68 In accordance with this
case, the rights of the citizen to be free to use his faculties in all lawful ways; to live and work
where he will; to earn his livelihood by any lawful calling; and to pursue any avocation are all
deemed embraced in the concept of liberty.69
The U.S. Supreme Court in the case of Roth v. Board of Regents,70 sought to clarify the
meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty. . . guaranteed [by the
Fifth and Fourteenth Amendments], the term denotes not merely freedom from bodily restraint
but also the right of the individual to contract, to engage in any of the common occupations of
life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship
God according to the dictates of his own conscience, and generally to enjoy those privileges
long recognized…as essential to the orderly pursuit of happiness by free men. In a Constitution
for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed.
In another case, it also confirmed that liberty protected by the due process clause includes
personal decisions relating to marriage, procreation, contraception, family relationships, child
rearing, and education. In explaining the respect the Constitution demands for the autonomy
of the person in making these choices, the U.S. Supreme Court explained:

These matters, involving the most intimate and personal choices a person may make in a
lifetime, choices central to personal dignity and autonomy, are central to the liberty protected
by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept
of existence, of meaning, of universe, and of the mystery of human life. Beliefs about these
matters could not define the attributes of personhood where they formed under compulsion of
the State.71
Persons desirous to own, operate and patronize the enumerated establishments under Section
1 of the Ordinance may seek autonomy for these purposes.
Motel patrons who are single and unmarried may invoke this right to autonomy to consummate
their bonds in intimate sexual conduct within the motel's premises be it stressed that their
consensual sexual behavior does not contravene any fundamental state policy as contained in
the Constitution.72 Adults have a right to choose to forge such relationships with others in the
confines of their own private lives and still retain their dignity as free persons. The liberty
protected by the Constitution allows persons the right to make this choice.73 Their right to
liberty under the due process clause gives them the full right to engage in their conduct without
intervention of the government, as long as they do not run afoul of the law. Liberty should be
the rule and restraint the exception.
Liberty in the constitutional sense not only means freedom from unlawful government restraint;
it must include privacy as well, if it is to be a repository of freedom. The right to be let alone is
the beginning of all freedom it is the most comprehensive of rights and the right most valued
by civilized men.74
The concept of liberty compels respect for the individual whose claim to privacy and
interference demands respect. As the case of Morfe v. Mutuc,75 borrowing the words of Laski,
so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his
isolation, are indefeasible; indeed, they are so fundamental that they are the basis on which
his civic obligations are built. He cannot abandon the consequences of his isolation, which are,
broadly speaking, that his experience is private, and the will built out of that experience
personal to himself. If he surrenders his will to others, he surrenders himself. If his will is set by
the will of others, he ceases to be a master of himself. I cannot believe that a man no longer a
master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of
which should be justified by a compelling state interest. Morfe accorded recognition to the right
to privacy independently of its identification with liberty; in itself it is fully deserving of
constitutional protection. Governmental powers should stop short of certain intrusions into the
personal life of the citizen.76
There is a great temptation to have an extended discussion on these civil liberties but the Court
chooses to exercise restraint and restrict itself to the issues presented when it should. The
previous pronouncements of the Court are not to be interpreted as a license for adults to
engage in criminal conduct. The reprehensibility of such conduct is not diminished. The Court
only reaffirms and guarantees their right to make this choice. Should they be prosecuted for
their illegal conduct, they should suffer the consequences of the choice they have made. That,
ultimately, is their choice.
Modality employed is
unlawful taking
In addition, the Ordinance is unreasonable and oppressive as it substantially divests the
respondent of the beneficial use of its property.77 The Ordinance in Section 1 thereof forbids
the running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs
its owners/operators to wind up business operations or to transfer outside the area or convert
said businesses into allowed businesses. An ordinance which permanently restricts the use of
property that it can not be used for any reasonable purpose goes beyond regulation and must
be recognized as a taking of the property without just compensation.78 It is intrusive and
violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that "private property shall not be
taken for public use without just compensation." The provision is the most important protection
of property rights in the Constitution. This is a restriction on the general power of the
government to take property. The constitutional provision is about ensuring that the
government does not confiscate the property of some to give it to others. In part too, it is about
loss spreading. If the government takes away a person's property to benefit society, then
society should pay. The principal purpose of the guarantee is "to bar the Government from
forcing some people alone to bear public burdens which, in all fairness and justice, should be
borne by the public as a whole.79
There are two different types of taking that can be identified. A "possessory" taking occurs
when the government confiscates or physically occupies property. A "regulatory" taking occurs
when the government's regulation leaves no reasonable economically viable use of the
property.80
In the landmark case of Pennsylvania Coal v. Mahon,81 it was held that a taking also could be
found if government regulation of the use of property went "too far." When regulation reaches
a certain magnitude, in most if not in all cases there must be an exercise of eminent domain
and compensation to support the act. While property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking.82
No formula or rule can be devised to answer the questions of what is too far and when
regulation becomes a taking. In Mahon, Justice Holmes recognized that it was "a question of
degree and therefore cannot be disposed of by general propositions." On many other occasions
as well, the U.S. Supreme Court has said that the issue of when regulation constitutes a taking
is a matter of considering the facts in each case. The Court asks whether justice and fairness
require that the economic loss caused by public action must be compensated by the
government and thus borne by the public as a whole, or whether the loss should remain
concentrated on those few persons subject to the public action.83
What is crucial in judicial consideration of regulatory takings is that government regulation is a
taking if it leaves no reasonable economically viable use of property in a manner that interferes
with reasonable expectations for use.84 A regulation that permanently denies all economically
beneficial or productive use of land is, from the owner's point of view, equivalent to a "taking"
unless principles of nuisance or property law that existed when the owner acquired the land
make the use prohibitable.85 When the owner of real property has been called upon to sacrifice
all economically beneficial uses in the name of the common good, that is, to leave his property
economically idle, he has suffered a taking.86
A regulation which denies all economically beneficial or productive use of land will require
compensation under the takings clause. Where a regulation places limitations on land that fall
short of eliminating all economically beneficial use, a taking nonetheless may have occurred,
depending on a complex of factors including the regulation's economic effect on the landowner,
the extent to which the regulation interferes with reasonable investment-backed expectations
and the character of government action. These inquiries are informed by the purpose of the
takings clause which is to prevent the government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the public as a whole.87
A restriction on use of property may also constitute a "taking" if not reasonably necessary to
the effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct
investment-backed expectations of the owner.88
The Ordinance gives the owners and operators of the "prohibited" establishments three (3)
months from its approval within which to "wind up business operations or to transfer to any
place outside of the Ermita-Malate area or convert said businesses to other kinds of business
allowable within the area." The directive to "wind up business operations" amounts to a closure
of the establishment, a permanent deprivation of property, and is practically confiscatory.
Unless the owner converts his establishment to accommodate an "allowed" business, the
structure which housed the previous business will be left empty and gathering dust. Suppose
he transfers it to another area, he will likewise leave the entire establishment idle. Consideration
must be given to the substantial amount of money invested to build the edifices which the owner
reasonably expects to be returned within a period of time. It is apparent that the Ordinance
leaves no reasonable economically viable use of property in a manner that interferes with
reasonable expectations for use.
The second and third options to transfer to any place outside of the Ermita-Malate area or to
convert into allowed businesses are confiscatory as well. The penalty of permanent closure in
cases of subsequent violations found in Section 4 of the Ordinance is also equivalent to a
"taking" of private property.
The second option instructs the owners to abandon their property and build another one outside
the Ermita-Malate area. In every sense, it qualifies as a taking without just compensation with
an additional burden imposed on the owner to build another establishment solely from his
coffers. The proffered solution does not put an end to the "problem," it merely relocates it. Not
only is this impractical, it is unreasonable, onerous and oppressive. The conversion into allowed
enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant or
a coffee shop, art gallery or music lounge without essentially destroying its property? This is a
taking of private property without due process of law, nay, even without compensation.
The penalty of closure likewise constitutes unlawful taking that should be compensated by the
government. The burden on the owner to convert or transfer his business, otherwise it will be
closed permanently after a subsequent violation should be borne by the public as this end
benefits them as a whole.
Petitioners cannot take refuge in classifying the measure as a zoning ordinance. A zoning
ordinance, although a valid exercise of police power, which limits a "wholesome" property to a
use which can not reasonably be made of it constitutes the taking of such property without just
compensation. Private property which is not noxious nor intended for noxious purposes may
not, by zoning, be destroyed without compensation. Such principle finds no support in the
principles of justice as we know them. The police powers of local government units which have
always received broad and liberal interpretation cannot be stretched to cover this particular
taking.
Distinction should be made between destruction from necessity and eminent domain. It needs
restating that the property taken in the exercise of police power is destroyed because it is
noxious or intended for a noxious purpose while the property taken under the power of eminent
domain is intended for a public use or purpose and is therefore "wholesome."89 If it be of public
benefit that a "wholesome" property remain unused or relegated to a particular purpose, then
certainly the public should bear the cost of reasonable compensation for the condemnation of
private property for public use.90
Further, the Ordinance fails to set up any standard to guide or limit the petitioners' actions. It in
no way controls or guides the discretion vested in them. It provides no definition of the
establishments covered by it and it fails to set forth the conditions when the establishments
come within its ambit of prohibition. The Ordinance confers upon the mayor arbitrary and
unrestricted power to close down establishments. Ordinances such as this, which make
possible abuses in its execution, depending upon no conditions or qualifications whatsoever
other than the unregulated arbitrary will of the city authorities as the touchstone by which its
validity is to be tested, are unreasonable and invalid. The Ordinance should have established
a rule by which its impartial enforcement could be secured.91
Ordinances placing restrictions upon the lawful use of property must, in order to be valid and
constitutional, specify the rules and conditions to be observed and conduct to avoid; and must
not admit of the exercise, or of an opportunity for the exercise, of unbridled discretion by the
law enforcers in carrying out its provisions.92
Thus, in Coates v. City of Cincinnati,93 as cited in People v. Nazario,94 the U.S. Supreme
Court struck down an ordinance that had made it illegal for "three or more persons to assemble
on any sidewalk and there conduct themselves in a manner annoying to persons passing by."
The ordinance was nullified as it imposed no standard at all "because one may never know in
advance what 'annoys some people but does not annoy others.' "
Similarly, the Ordinance does not specify the standards to ascertain which establishments
"tend to disturb the community," "annoy the inhabitants," and "adversely affect the social and
moral welfare of the community." The cited case supports the nullification of the Ordinance for
lack of comprehensible standards to guide the law enforcers in carrying out its provisions.
Petitioners cannot therefore order the closure of the enumerated establishments without
infringing the due process clause. These lawful establishments may be regulated, but not
prevented from carrying on their business. This is a sweeping exercise of police power that is
a result of a lack of imagination on the part of the City Council and which amounts to an
interference into personal and private rights which the Court will not countenance. In this
regard, we take a resolute stand to uphold the constitutional guarantee of the right to liberty
and property.
Worthy of note is an example derived from the U.S. of a reasonable regulation which is a far
cry from the ill-considered Ordinance enacted by the City Council.
In FW/PBS, INC. v. Dallas,95 the city of Dallas adopted a comprehensive ordinance regulating
"sexually oriented businesses," which are defined to include adult arcades, bookstores, video
stores, cabarets, motels, and theaters as well as escort agencies, nude model studio and
sexual encounter centers. Among other things, the ordinance required that such businesses
be licensed. A group of motel owners were among the three groups of businesses that filed
separate suits challenging the ordinance. The motel owners asserted that the city violated the
due process clause by failing to produce adequate support for its supposition that renting room
for fewer than ten (10) hours resulted in increased crime and other secondary effects. They
likewise argued than the ten (10)-hour limitation on the rental of motel rooms placed an
unconstitutional burden on the right to freedom of association. Anent the first contention, the
U.S. Supreme Court held that the reasonableness of the legislative judgment combined with a
study which the city considered, was adequate to support the city's determination that motels
permitting room rentals for fewer than ten (10 ) hours should be included within the licensing
scheme. As regards the second point, the Court held that limiting motel room rentals to ten (10)
hours will have no discernible effect on personal bonds as those bonds that are formed from
the use of a motel room for fewer than ten (10) hours are not those that have played a critical
role in the culture and traditions of the nation by cultivating and transmitting shared ideals and
beliefs.
The ordinance challenged in the above-cited case merely regulated the targeted businesses.
It imposed reasonable restrictions; hence, its validity was upheld.
The case of Ermita Malate Hotel and Motel Operators Association, Inc. v. City Mayor of
Manila,96 it needs pointing out, is also different from this case in that what was involved therein
was a measure which regulated the mode in which motels may conduct business in order to
put an end to practices which could encourage vice and immorality. Necessarily, there was no
valid objection on due process or equal protection grounds as the ordinance did not prohibit
motels. The Ordinance in this case however is not a regulatory measure but is an exercise of
an assumed power to prohibit.97
The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment
of property and personal rights of citizens. For being unreasonable and an undue restraint of
trade, it cannot, even under the guise of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Protection Clause
Equal protection requires that all persons or things similarly situated should be treated alike,
both as to rights conferred and responsibilities imposed. Similar subjects, in other words,
should not be treated differently, so as to give undue favor to some and unjustly discriminate
against others.98 The guarantee means that no person or class of persons shall be denied the
same protection of laws which is enjoyed by other persons or other classes in like
circumstances.99 The "equal protection of the laws is a pledge of the protection of equal
laws."100 It limits governmental discrimination. The equal protection clause extends to artificial
persons but only insofar as their property is concerned.101
The Court has explained the scope of the equal protection clause in this wise:
… What does it signify? To quote from J.M. Tuason & Co. v. Land Tenure Administration: "The
ideal situation is for the law's benefits to be available to all, that none be placed outside the
sphere of its coverage. Only thus could chance and favor be excluded and the affairs of men
governed by that serene and impartial uniformity, which is of the very essence of the idea of
law." There is recognition, however, in the opinion that what in fact exists "cannot approximate
the ideal. Nor is the law susceptible to the reproach that it does not take into account the
realities of the situation. The constitutional guarantee then is not to be given a meaning that
disregards what is, what does in fact exist. To assure that the general welfare be promoted,
which is the end of law, a regulatory measure may cut into the rights to liberty and property.
Those adversely affected may under such circumstances invoke the equal protection clause
only if they can show that the governmental act assailed, far from being inspired by the
attainment of the common weal was prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason." Classification is thus not ruled out, it being
sufficient to quote from the Tuason decision anew "that the laws operate equally and uniformly
on all persons under similar circumstances or that all persons must be treated in the same
manner, the conditions not being different, both in the privileges conferred and the liabilities
imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under circumstances which, if not
identical, are analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest.102
Legislative bodies are allowed to classify the subjects of legislation. If the classification is
reasonable, the law may operate only on some and not all of the people without violating the
equal protection clause.103 The classification must, as an indispensable requisite, not be
arbitrary. To be valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.104
In the Court's view, there are no substantial distinctions between motels, inns, pension houses,
hotels, lodging houses or other similar establishments. By definition, all are commercial
establishments providing lodging and usually meals and other services for the public. No
reason exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or
other similar establishments. The classification in the instant case is invalid as similar subjects
are not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as
it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the
Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of motels in
the Ermita-Malate area but not outside of this area. A noxious establishment does not become
any less noxious if located outside the area.
The standard "where women are used as tools for entertainment" is also discriminatory as
prostitution one of the hinted ills the Ordinance aims to banish is not a profession exclusive
to women. Both men and women have an equal propensity to engage in prostitution. It is not
any less grave a sin when men engage in it. And why would the assumption that there is an
ongoing immoral activity apply only when women are employed and be inapposite when men
are in harness? This discrimination based on gender violates equal protection as it is not
substantially related to important government objectives.105 Thus, the discrimination is invalid.
Failing the test of constitutionality, the Ordinance likewise failed to pass the test of consistency
with prevailing laws.
C. The Ordinance is repugnant
to general laws; it is ultra vires
The Ordinance is in contravention of the Code as the latter merely empowers local government
units to regulate, and not prohibit, the establishments enumerated in Section 1 thereof.
The power of the City Council to regulate by ordinances the establishment, operation, and
maintenance of motels, hotels and other similar establishments is found in Section 458 (a) 4
(iv), which provides that:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate
funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided for under Section 22
of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order
to promote the general welfare and for said purpose shall:
. . .
(iv) Regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses,
hotels, motels, inns, pension houses, lodging houses, and other similar establishments,
including tourist guides and transports . . . .
While its power to regulate the establishment, operation and maintenance of any entertainment
or amusement facilities, and to prohibit certain forms of amusement or entertainment is
provided under Section 458 (a) 4 (vii) of the Code, which reads as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate
funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided for under Section 22
of this Code, and shall:
. . .
(4) Regulate activities relative to the use of land, buildings and structures within the city in order
to promote the general welfare and for said purpose shall:
. . .
(vii) Regulate the establishment, operation, and maintenance of any entertainment or
amusement facilities, including theatrical performances, circuses, billiard pools, public dancing
schools, public dance halls, sauna baths, massage parlors, and other places for entertainment
or amusement; regulate such other events or activities for amusement or entertainment,
particularly those which tend to disturb the community or annoy the inhabitants, or require the
suspension or suppression of the same; or, prohibit certain forms of amusement or
entertainment in order to protect the social and moral welfare of the community.
Clearly, with respect to cafes, restaurants, beerhouses, hotels, motels, inns, pension houses,
lodging houses, and other similar establishments, the only power of the City Council to legislate
relative thereto is to regulate them to promote the general welfare. The Code still withholds
from cities the power to suppress and prohibit altogether the establishment, operation and
maintenance of such establishments. It is well to recall the rulings of the Court in Kwong Sing
v. City of Manila106 that:
The word "regulate," as used in subsection (l), section 2444 of the Administrative Code, means
and includes the power to control, to govern, and to restrain; but "regulate" should not be
construed as synonymous with "suppress" or "prohibit." Consequently, under the power to
regulate laundries, the municipal authorities could make proper police regulations as to the
mode in which the employment or business shall be exercised.107
And in People v. Esguerra,108 wherein the Court nullified an ordinance of the Municipality of
Tacloban which prohibited the selling, giving and dispensing of liquor ratiocinating that the
municipality is empowered only to regulate the same and not prohibit. The Court therein
declared that:
(A)s a general rule when a municipal corporation is specifically given authority or power to
regulate or to license and regulate the liquor traffic, power to prohibit is impliedly withheld.109
These doctrines still hold contrary to petitioners' assertion110 that they were modified by the
Code vesting upon City Councils prohibitory powers.
Similarly, the City Council exercises regulatory powers over public dancing schools, public
dance halls, sauna baths, massage parlors, and other places for entertainment or amusement
as found in the first clause of Section 458 (a) 4 (vii). Its powers to regulate, suppress and
suspend "such other events or activities for amusement or entertainment, particularly those
which tend to disturb the community or annoy the inhabitants" and to "prohibit certain forms of
amusement or entertainment in order to protect the social and moral welfare of the community"
are stated in the second and third clauses, respectively of the same Section. The several
powers of the City Council as provided in Section 458 (a) 4 (vii) of the Code, it is pertinent to
emphasize, are separated by semi-colons (;), the use of which indicates that the clauses in
which these powers are set forth are independent of each other albeit closely related to justify
being put together in a single enumeration or paragraph.111 These powers, therefore, should
not be confused, commingled or consolidated as to create a conglomerated and unified power
of regulation, suppression and prohibition.112
The Congress unequivocably specified the establishments and forms of amusement or
entertainment subject to regulation among which are beerhouses, hotels, motels, inns, pension
houses, lodging houses, and other similar establishments (Section 458 (a) 4 (iv)), public
dancing schools, public dance halls, sauna baths, massage parlors, and other places for
entertainment or amusement (Section 458 (a) 4 (vii)). This enumeration therefore cannot be
included as among "other events or activities for amusement or entertainment, particularly
those which tend to disturb the community or annoy the inhabitants" or "certain forms of
amusement or entertainment" which the City Council may suspend, suppress or prohibit.
The rule is that the City Council has only such powers as are expressly granted to it and those
which are necessarily implied or incidental to the exercise thereof. By reason of its limited
powers and the nature thereof, said powers are to be construed strictissimi juris and any doubt
or ambiguity arising out of the terms used in granting said powers must be construed against
the City Council.113 Moreover, it is a general rule in statutory construction that the express
mention of one person, thing, or consequence is tantamount to an express exclusion of all
others. Expressio unius est exclusio alterium. This maxim is based upon the rules of logic and
the natural workings of human mind. It is particularly applicable in the construction of such
statutes as create new rights or remedies, impose penalties or punishments, or otherwise come
under the rule of strict construction.114
The argument that the City Council is empowered to enact the Ordinance by virtue of the
general welfare clause of the Code and of Art. 3, Sec. 18 (kk) of the Revised Charter of Manila
is likewise without merit. On the first point, the ruling of the Court in People v. Esguerra,115 is
instructive. It held that:
The powers conferred upon a municipal council in the general welfare clause, or section 2238
of the Revised Administrative Code, refers to matters not covered by the other provisions of
the same Code, and therefore it can not be applied to intoxicating liquors, for the power to
regulate the selling, giving away and dispensing thereof is granted specifically by section 2242
(g) to municipal councils. To hold that, under the general power granted by section 2238, a
municipal council may enact the ordinance in question, notwithstanding the provision of section
2242 (g), would be to make the latter superfluous and nugatory, because the power to prohibit,
includes the power to regulate, the selling, giving away and dispensing of intoxicating liquors.
On the second point, it suffices to say that the Code being a later expression of the legislative
will must necessarily prevail and override the earlier law, the Revised Charter of Manila. Legis
posteriores priores contrarias abrogant, or later statute repeals prior ones which are repugnant
thereto. As between two laws on the same subject matter, which are irreconcilably inconsistent,
that which is passed later prevails, since it is the latest expression of legislative will.116 If there
is an inconsistency or repugnance between two statutes, both relating to the same subject
matter, which cannot be removed by any fair and reasonable method of interpretation, it is the
latest expression of the legislative will which must prevail and override the earlier.117
Implied repeals are those which take place when a subsequently enacted law contains
provisions contrary to those of an existing law but no provisions expressly repealing them. Such
repeals have been divided into two general classes: those which occur where an act is so
inconsistent or irreconcilable with an existing prior act that only one of the two can remain in
force and those which occur when an act covers the whole subject of an earlier act and is
intended to be a substitute therefor. The validity of such a repeal is sustained on the ground
that the latest expression of the legislative will should prevail.118
In addition, Section 534(f) of the Code states that "All general and special laws, acts, city
charters, decrees, executive orders, proclamations and administrative regulations, or part or
parts thereof which are inconsistent with any of the provisions of this Code are hereby repealed
or modified accordingly." Thus, submitting to petitioners' interpretation that the Revised Charter
of Manila empowers the City Council to prohibit motels, that portion of the Charter stating such
must be considered repealed by the Code as it is at variance with the latter's provisions granting
the City Council mere regulatory powers.

It is well to point out that petitioners also cannot seek cover under the general welfare clause
authorizing the abatement of nuisances without judicial proceedings. That tenet applies to a
nuisance per se, or one which affects the immediate safety of persons and property and may
be summarily abated under the undefined law of necessity. It can not be said that motels are
injurious to the rights of property, health or comfort of the community. It is a legitimate business.
If it be a nuisance per accidens it may be so proven in a hearing conducted for that purpose. A
motel is not per se a nuisance warranting its summary abatement without judicial
intervention.119
Notably, the City Council was conferred powers to prevent and prohibit certain activities and
establishments in another section of the Code which is reproduced as follows:
Section 458. Powers, Duties, Functions and Compensation. (a) The sangguniang panlungsod,
as the legislative body of the city, shall enact ordinances, approve resolutions and appropriate
funds for the general welfare of the city and its inhabitants pursuant to Section 16 of this Code
and in the proper exercise of the corporate powers of the city as provided for under Section 22
of this Code, and shall:
(1) Approve ordinances and pass resolutions necessary for an efficient and effective city
government, and in this connection, shall:
. . .
(v) Enact ordinances intended to prevent, suppress and impose appropriate penalties for
habitual drunkenness in public places, vagrancy, mendicancy, prostitution, establishment and
maintenance of houses of ill repute, gambling and other prohibited games of chance,
fraudulent devices and ways to obtain money or property, drug addiction, maintenance of drug
dens, drug pushing, juvenile delinquency, the printing, distribution or exhibition of obscene or
pornographic materials or publications, and such other activities inimical to the welfare and
morals of the inhabitants of the city;
. . .
If it were the intention of Congress to confer upon the City Council the power to prohibit the
establishments enumerated in Section 1 of the Ordinance, it would have so declared in
uncertain terms by adding them to the list of the matters it may prohibit under the above-quoted
Section. The Ordinance now vainly attempts to lump these establishments with houses of ill-
repute and expand the City Council's powers in the second and third clauses of Section 458
(a) 4 (vii) of the Code in an effort to overreach its prohibitory powers. It is evident that these
establishments may only be regulated in their establishment, operation and maintenance.
It is important to distinguish the punishable activities from the establishments themselves. That
these establishments are recognized legitimate enterprises can be gleaned from another
Section of the Code. Section 131 under the Title on Local Government Taxation expressly
mentioned proprietors or operators of massage clinics, sauna, Turkish and Swedish baths,
hotels, motels and lodging houses as among the "contractors" defined in paragraph (h) thereof.
The same Section also defined "amusement" as a "pleasurable diversion and entertainment,"
"synonymous to relaxation, avocation, pastime or fun;" and "amusement places" to include
"theaters, cinemas, concert halls, circuses and other places of amusement where one seeks
admission to entertain oneself by seeing or viewing the show or performances." Thus, it can
be inferred that the Code considers these establishments as legitimate enterprises and
activities. It is well to recall the maxim reddendo singula singulis which means that words in
different parts of a statute must be referred to their appropriate connection, giving to each in its
place, its proper force and effect, and, if possible, rendering none of them useless or
superfluous, even if strict grammatical construction demands otherwise. Likewise, where words
under consideration appear in different sections or are widely dispersed throughout an act the
same principle applies.120
Not only does the Ordinance contravene the Code, it likewise runs counter to the provisions of
P.D. 499. As correctly argued by MTDC, the statute had already converted the residential
Ermita-Malate area into a commercial area. The decree allowed the establishment and
operation of all kinds of commercial establishments except warehouse or open storage depot,
dump or yard, motor repair shop, gasoline service station, light industry with any machinery or
funeral establishment. The rule is that for an ordinance to be valid and to have force and effect,
it must not only be within the powers of the council to enact but the same must not be in conflict
with or repugnant to the general law.121 As succinctly illustrated in Solicitor General v.
Metropolitan Manila Authority:122
The requirement that the enactment must not violate existing law explains itself. Local political
subdivisions are able to legislate only by virtue of a valid delegation of legislative power from
the national legislature (except only that the power to create their own sources of revenue and
to levy taxes is conferred by the Constitution itself). They are mere agents vested with what is
called the power of subordinate legislation. As delegates of the Congress, the local government
units cannot contravene but must obey at all times the will of their principal. In the case before
us, the enactment in question, which are merely local in origin cannot prevail against the
decree, which has the force and effect of a statute.123
Petitioners contend that the Ordinance enjoys the presumption of validity. While this may be
the rule, it has already been held that although the presumption is always in favor of the validity
or reasonableness of the ordinance, such presumption must nevertheless be set aside when
the invalidity or unreasonableness appears on the face of the ordinance itself or is established
by proper evidence. The exercise of police power by the local government is valid unless it
contravenes the fundamental law of the land, or an act of the legislature, or unless it is against
public policy or is unreasonable, oppressive, partial, discriminating or in derogation of a
common right.124
Conclusion
All considered, the Ordinance invades fundamental personal and property rights and impairs
personal privileges. It is constitutionally infirm. The Ordinance contravenes statutes; it is
discriminatory and unreasonable in its operation; it is not sufficiently detailed and explicit that
abuses may attend the enforcement of its sanctions. And not to be forgotten, the City Council
under the Code had no power to enact the Ordinance and is therefore ultra vires, null and void.
Concededly, the challenged Ordinance was enacted with the best of motives and shares the
concern of the public for the cleansing of the Ermita-Malate area of its social sins. Police power
legislation of such character deserves the full endorsement of the judiciary we reiterate our
support for it. But inspite of its virtuous aims, the enactment of the Ordinance has no statutory
or constitutional authority to stand on. Local legislative bodies, in this case, the City Council,
cannot prohibit the operation of the enumerated establishments under Section 1 thereof or
order their transfer or conversion without infringing the constitutional guarantees of due process
and equal protection of laws not even under the guise of police power.
WHEREFORE, the Petition is hereby DENIED and the decision of the Regional Trial Court
declaring the Ordinance void is AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario and Garcia, JJ., concur
Panganiban, J., in the result.
Ynares- Santiago, J., concur in the result only.
G.R. No. L-3422 June 13, 1952
HIDALGO ENTERPRISES, INC., petitioner,
vs.
GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS,
respondents.
Quisumbing, Sycip, Quisumbing and Salazar for petitioner.
Antonio M. Moncado for respondents.
BENGZON, J.:
This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo
Enterprises, Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for
the death of their son Mario.
It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in
the City of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine
feet deep, for cooling purposes of its engine. While the factory compound was surrounded with
fence, the tanks themselves were not provided with any kind of fence or top covers. The edges
of the tanks were barely a foot high from the surface of the ground. Through the wide gate
entrance, which is continually open, motor vehicles hauling ice and persons buying said
commodity passed, and any one could easily enter the said factory, as he pleased. There was
no guard assigned on the gate. At about noon of April 16, 1948, plaintiff's son, Mario Balandan,
a boy barely 8 years old, while playing with and in company of other boys of his age entered
the factory premises through the gate, to take a bath in one of said tanks; and while thus
bathing, Mario sank to the bottom of the tank, only to be fished out later, already a cadaver,
having been died of "asphyxia secondary to drowning."
The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner
maintained an attractive nuisance (the tanks), and neglected to adopt the necessary
precautions to avoid accidents to persons entering its premises. It applied the doctrine of
attractive nuisance, of American origin, recognized in this Jurisdiction in Taylor vs. Manila
Electric 16 Phil., 8.
The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous
instrumentalities or appliances of a character likely to attract children in play, and who fails to
exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable
to a child of tender years who is injured thereby, even if the child is technically a trespasser in
the premises. (See 65 C.J.S., p. 455.)
The principle reason for the doctrine is that the condition or appliance in question although its
danger is apparent to those of age, is so enticing or alluring to children of tender years as to
induce them to approach, get on or use it, and this attractiveness is an implied invitation to
such children (65 C.J.S., p. 458).
Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little
children in play? In other words is the body of water an attractive nuisance?
The great majority of American decisions say no.
The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well
as natural, in the absence of some unusual condition or artificial feature other than the mere
water and its location.
There are numerous cases in which the attractive nuisance doctrine has not been held not to
be applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches, culverts,
drains, cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of California,
Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma,
Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.)
In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris
Secundum was published in 1950, whereas its decision was promulgated on September 30,
1949.
The reason why a swimming pool or pond or reservoir of water is not considered an attractive
nuisance was lucidly explained by the Indiana Appellate Court as follows:
Nature has created streams, lakes and pools which attract children. Lurking in their waters is
always the danger of drowning. Against this danger children are early instructed so that they
are sufficiently presumed to know the danger; and if the owner of private property creates an
artificial pool on his own property, merely duplicating the work of nature without adding any
new danger, . . . (he) is not liable because of having created an "attractive nuisance." Anderson
vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170.

Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether
the petitioner had taken reasonable precautions becomes immaterial. And the other issue
submitted by petitioner — that the parents of the boy were guilty of contributory negligence
precluding recovery, because they left for Manila on that unlucky day leaving their son under
the care of no responsible individual — needs no further discussion.

The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability.
No costs.

Feria, Padilla, Tuason, Montemayor, and Bautista Angelo, JJ., concur.