G.R. No. L-7012 March 26, 1913 2.
913 2. That the answer is vague and ambiguous and contains arguments and conclusions of law
THE ILOILO ICE AND COLD STORAGE COMPANY, plaintiff-appellee, vs. THE MUNICIPAL
COUNCIL OF ILOILO, ET AL., defendants-appellants.
TRENT, J.:
According to the pleadings, the plaintiff, upon authority granted by the defendant,
constructed an ice and cold storage plant in the city of Iloilo. Some time after the plant had
been completed and was in operation, nearby residents made complaints to the defendant
that the smoke from the plant was very injurious to their health and comfort. Thereupon the
defendant appointed a committee to investigate and report upon the matters contained in
said complaints. The committee reported that the complaints were well-founded. The
defendant counsel then passed a resolution which reads in part as follows:
That after the approval by the honorable provincial board of this resolution, a period of one
month will be granted to the said entity. The Iloilo Ice and Cold Storage Company, in which
to proceed with the elevation of said smokestacks, and if not done, the municipal president
will execute the order requiring the closing or suspension of operations of said
establishment.
Upon receipt of this resolution and order, the plaintiff commenced this action in the Court of
First Instance to enjoin the defendant from carrying into effect the said resolution. The fifth
paragraph of the complaint is as follows:
That the defendants intend and threaten to require compliance with said resolution
administratively and without the intervention of the court, and by force to compel the
closing and suspension of operations of the plaintiff's machinery and consequently of the
entire plant, should the plaintiff not proceed with the elevation of the smokestacks to one
hundred feet, which the plaintiff maintains it is not obliged to do and will not do.
Upon notice and after hearing, a preliminary injunction was issued. Subsequently thereto the
defendant answered, admitting paragraphs 1 and 4 and denying all the other allegations in
the complaint, and as a special defense alleged:
1. xxx xxx xxx.
2. That the factory of the plaintiff company stands in a central and populated district of the
municipality;
3. That the quantity of smoke discharged from the smokestacks of said factory is so great and
so dense that it penetrates into the dwelling houses situated near it and causes great
annoyance to the residents and prejudice to their health;
4. That the municipal board of health of the city has reported that the smoke discharged
from the smokestacks of said factory is prejudicial and injurious to the public health;
5. That the plaintiff company has no right to maintain and operate machinery in its factory
under the conditions which it is at present operating the same, without complying with the
regulations which were imposed upon it when the license for its installation was granted,
because it thereby violates the ordinances of the city now in force upon the matter.
Wherefore, the defendant prays that it be absolved from the complaint and the plaintiff be
declared to have no right to the remedy asked, and that the preliminary injunction issued in
this case be set aside, with the costs against the plaintiff.
The plaintiff demurred to this answer upon the following grounds:
1. That the facts alleged in the answer do not constitute a defense; and
Cesz
instead of facts.
This demurrer was sustained, the court saying:
The defendant will amend his answer within five days or the injunction will be permanently
granted as prayed for, with costs to the defendant.
To this order the defendant excepted and, not desiring to amend its answer, appealed to this
court.
It is alleged in paragraph 1 that both the plaintiff and the defendants are corporations duly
organized under the laws of the Philippine Islands; and paragraph 4 sets forth the resolution
complained of, the dispositive part of which is inserted above. The allegations in paragraph
2, 3, 5, 6, 7, and 8, which are specifically denied in the answer, all (except the fifth) relate to
the building of the plant under authority granted by the defendant, the cost of its
construction, the legality of the resolution in question, the power of the defendant to pass
such resolution, and the damages which will result if that resolution is carried into effect. As
before stated, the allegations in paragraph 5 to the effect that the defendants intend and are
threatening to close by force and without the intervention of the courts the plaintiff's plant is
specifically denied. The issue in this case, according to the pleadings, relates to the power of
the municipal council to declare the plant of the petitioner a nuisance as operated, and the
method of abating it.
The municipal council is, under section 39 (j) of the Municipal Code, specifically empowered
"to declare and abate nuisances." A nuisance is, according to Blackstone, "Any thing that
worketh hurt, inconvenience, or damages." (3 Black. Com., 216.) They arise from pursuing
particular trades or industries in populous neighborhoods; from acts of public indecency,
keeping disorderly houses, and houses of ill fame, gambling houses, etc. (2 Bouv., 248; Miller
vs. Burch, 32 Tex., 208.) Nuisances have been divided into two classes: Nuisances per se, and
nuisances per accidens. To the first belong those which are unquestionably and under all
circumstances nuisances, such as gambling houses, houses of ill fame, etc. The number of
such nuisances is necessarily limited, and by far the greater number of nuisances are such
because of particular facts and circumstances surrounding the otherwise harmless cause of
the nuisance. For this reason, it will readily be seen that whether a particular thing is a
nuisance is generally a question of fact, to be determined in the first instance before the term
nuisance can be applied to it. This is certainly true of a legitimate calling, trade, or business
such as an ice plant. Does the power delegated to a municipal council under section 39 (j) of
the Municipal Code commit to the unrestrained will of that body the absolute power of
declaring anything to be a nuisance? Is the decision of that body final despite the possibility
that it may proceed from animosity or prejudice, from partisan zeal or enmity, from favoritism
and other improper influences and motives, easy of concealment and difficult to be detected
and exposed? Upon principle and authority, we think it does not.
In Rutton vs. City of Camden, 39 N.J.L., 122, 129; 23 Am. Rep. 203, 209, the court said:
The authority to decide when a nuisance exists in an authority to find facts, to estimate their
force, and to apply rules of law to the case thus made. This is the judicial function, and it is a
function applicable to a numerous class of important interests. The use of land and buildings,
the enjoyment of water rights, the practice of many trades and occupations, and the
business of manufacturing in particular localities, all fall on some occasions, in important
respects, within its sphere. To say to a man that he shall not use his property as he pleases,
under certain conditions, is to deprive him pro tanto of the enjoyment of such property. To
find conclusively against him that a state of facts exists with respect to the use of his property,
or the pursuit of his business, which subjects him to the condemnation of the law, is to affect
his rights in a vital point. The next thing to depriving a man of his property is to circumscribe
him in its use, and the right to use property is as much under the protection of the law as the
property itself, in any other aspect, is, and the one interest can no more be taken out of the
Page 1
hands of the ordinary tribunal than the other can. If a man's property cannot be taken away
from him except upon trial by jury, or by the exercise of the right of eminent domain upon
compensation made, neither can be, in any other mode, be limited in the use of it. The right
to abate public nuisances, whether we regard it as existing in the municipalities, or in the
community, or in the land of the individual, is a common law right, and is derived, in every
instance of its exercise, from the same source — that of necessity. It is akin to the right of
destroying property for the public safety, in case of the prevalence of a devastating fire or
other controlling exigency. But the necessity must be present to justify the exercise of the
right, and whether present or not, must be submitted to a jury under the guidance of a
court. The finding of a sanitary committee, or of a municipal council, or of any other body of
a similar kind, can have no effect whatever for any purpose, upon the ultimate disposition of
the matter of this kind. It cannot be used as evidence in any legal proceeding, for the end of
establishing, finally, the fact of nuisance, and if can be made testimony for any purpose, it
would seem that it can be such only to show that the persons acting in pursuance of it were
devoid of that malicious spirit which sometimes aggravates a trespass and swells the
damages. I repeat that the question of nuisance can conclusively be decided, for all legal
uses, by the established courts of law or equity alone, and that the resolutions of officers, or
of boards organized by force of municipal charters, cannot, to any degree, control such
decision.
The leading case upon this point is Yates vs. Milwaukee, (10 Wall., 497; 19 L. ed., 984). The
following quotation from this case has been cited or quoted with approval in a great number
of cases. (See Notes to this case in 19 L. ed., Notes, page 356.)
But the mere declaration by the city council of Milwaukee that a certain structure was an
encroachment or obstruction did not make structure was an encroachment or obstruction
did not make it so, nor could such declaration make it a nuisance unless it in fact had that
character. It is a doctrine not to be tolerated in this country, that a municipal corporation,
without any general laws either of the city or of the State, within which a given structure can
be shown to be a nuisance, can, by its mere declaration that it is one, subject it to removal by
any person supposed to be aggrieved, or even by the city itself. This would place every
house, every business, and all the property of the city at the uncontrolled will of the
temporary local authorities. Yet this seems to have been the view taken by counsel who
defended this case in the circuit court; for that single ordinance of the city, declaring the
wharf of Yates a nuisance, and ordering its abatement, is the only evidence in the record that
it is a nuisance or an obstruction to navigation, or in any manner injurious to the public.
In Cole vs. Kegler (64 la., 59, 61) the court said:
We do not think the general assembly intended to confer on cities and towns the power of
finally and conclusively determine, without notice or a hearing, and without the right of
appeal, that any given thing constitutes a nuisance, unless, probably, in cases of great
emergency, so strong as to justify extraordinary measures upon the ground of paramount
necessity. The law does not contemplate such an exigency, and therefore does not provide
for it. If it did, it would no longer be the undefined law of necessity. (Nelson, J., in The People
vs. The Corporation of Albay, 11 Wend., 539.)
Nuisance may be abated by an individual, but they must in fact exist, The determination of
the individual that a nuisance exists does not make it so, and if he destroys property on the
that it is a nuisance, he is responsible, unless it is established that the property destroyed
constituted a nuisance. This precise power, and no more, is conferred by the statute on cities
and towns. In Wood on Nuisances, section 740, it is said: "If the authorities of a city abate a
nuisance under authority of an ordinance of the city, they are subject to the same perils and
liabilities as an individual, if the thing in fact is not nuisance."
In Grossman vs. City of Oakland (30 Ore., 478, 483) the court said:
Cesz
In our opinion this ordinance cannot be sustained as a legitimate exercise of municipal
power. The character of the city confers upon it the power to prevent and restrain nuisances,
and to "declare what shall constitute a nuisance;" but this does not authorize it to declare a
particular use of property a nuisance, unless such use comes within the common law or
statutory idea of a nuisance. (2 Wood on Nuisances (3d ed.), 977; Yates vs. Milwaukee, 77
U.S. (10 Wall.), 497; Village of Des Plaines vs. Poyer, 123 Ill., 348; 5 Am. St. Rep., 524; 14 N.E.,
677; Quintini vs. City Board of Aldermen, 64 Miss., 483; 60 Am. Rep., 62; 1 So., 625; Chicago
& Rock Islands R.R. Co. vs. City of Joliet, 79 Ill., 44; Hutton vs. City of Camden, 39 N.J. Law,
122; 23 Am. Rep., 203.) By this provision of the charter the city is clothed with authority to
declare by general ordinance under what circumstances and conditions certain specified acts
or things injurious to the health or dangerous to the public are to constitute and be deemed
nuisances, leaving the question of fact open for judicial determination as to whether the
particular act or thing complained of comes within the prohibited class; but it cannot by
ordinance arbitrarily declare any particular thing a nuisance which has not heretofore been
so declared by law, or judicially determined to be such. (City of Dener vs. Mullen, 7 Colo.,
345).
In Western & Atlantic R. Co. vs. Atlanta (113 Ga., 537, 551), after an extensive review of the
authorities, the court, per Lumpkin, J., said:
It is our opinion that the provisions of our code require, when a municipal corporation is
seeking to abate a nuisance such as it was alleged the floor of the union passenger station
was in this case, that the parties interested be given reasonable notice of the time and place
of hearing at which the fact whether the property complained of is or is not a nuisance shall
be inquired into and determined; that, without such notice and a judgment on the facts by
the body invested with power to abate the nuisance, it is unlawful to enter thereon and
remove or destroy it as a nuisance. If the thing, as we said, is declared by law to be a
nuisance, or if it is unquestionably a nuisance, such as a rabid dog, infected clothing, the
carcass of a dead animal on a private lot, the presence of a smallpox patient on the street, it
may be abated by the municipal authorities at once, by order, from the necessity of the case,
and to meet an emergency which exists, to at once protect the health and lives of the
people.
In Everett vs. City of Council Bluffs (46 Ia., 66, 67), where the council passed an ordinance
declaring trees on certain streets to be a nuisance and ordering the marshall to abate the
same, the court held:
The defendant is incorporated under a special charter, which provides that the city council
has power "to declare what shall be a nuisance, and to prevent, remove, or abate the same."
This general grant of power, however, will not authorize the council to declare anything a
nuisance which is not such at common law, or has been declared such by statute.
In Frostburg vs. Wineland (98 Md., 239, 243) the court said:
The first question, then, in the case revolves itself to this, was the summary proceeding of the
appellants in declaring the two trees in front of the appellee's property to be a nuisance and
an obstruction to the paving and curbing of the street, and directing them to be removed
and destroyed, so far final as not to be reviewable by the Courts?
This question we think was in effect settled by this court in the recent cases of New Windsor
vs. Stocksdale (95 Md., 215) and King vs. Hamil (97 Md., 103). In the latter case it is said that
equity will not lend its aid to enforce by injunction the by-laws or ordinances of a municipal
corporation, restraining an act, unless the act is shown to be a nuisance per se. . . .
It is clear, we think, both upon reason and authority, that when a municipality undertakes to
destroy private property which is not a nuisance per se, it then transcends its powers and its
acts are reviewable by a court of equity.
Page 2
In C.R.I. & P.R. Co. vs. City of Joilet (79 Ill., 25, 44) the court said:
As to the ordinance of the common council of the city of Joilet, of September, 1872,
declaring the railroad a nuisance, we regard that as without effect upon the case, although
the charter of the city confers upon the common council the power to abate and remove
nuisances, and to punish the authors thereof, and to define and declare what shall be
deemed nuisances. We will, in this respect, but refer to the language of the Supreme Court of
the United State in Yates vs. Milwaukee (10 Wall., 505). (See supra.)
In the leading case of Denver vs. Mullen (7 Colo., 345, 353) where an extended review of the
authorities is made, the court said:
The basis of authority for the action of the city in the premises is made to rest upon certain
provisions of the city charter, and certain ordinances, which are set out as exhibits in the
testimony; and the following, among other of the enumerated powers conferred by the
legislature upon the city, in said charter, is relied upon, viz: "To make regulations to secure
the general health of the inhabitants, to declare what shall be a nuisance, and to prevent
and remove the same."
The proper construction of this language is that the city is clothed with authority to declare,
by general ordinance, what shall constitute a nuisance. That is to say, the city may, by such
ordinance, define, classify and enact what things or classes of things, and under what
conditions and circumstances, such specified things are to constitute and be deemed
nuisances. For instance, the city might, under such authority, declare by ordinance that
slaughter-houses within the limits of the city, carcasses of dead animals left lying within the
city, goods, boxes, and the like, piled up or remaining for certain length of time on the
sidewalks, or other things injurious to health, or causing obstruction or danger to the public
in the use of the streets and sidewalks, should be deemed nuisances; not that the city council
may, by a mere resolution or motion, declare any particular thing a nuisance which has not
theretofore been pronounced to be such by law, or so adjudged by judicial determination.
(Everett vs. Council Bluffs, 40 Iowa, 66; Yates vs. Milwaukee, 10 Wall., 497.) No law or
ordinance, under which the city council assumed to act in respect to this ditch, has been
cited which defines nuisance, or within the meaning of which such ditch is comprehended.
xxx xxx xxx
It is only certain kinds of nuisances that may be removed or abated summarily by the acts of
individuals or by the public, such as those which affect the health, or interfere with the safety
of property or person, or are tangible obstructions to streets and highways under
circumstances presenting an emergency; such clear cases of nuisances per se, are well
understood, and need not to be further noticed here to distinguish them from the case
before us. If it were admitted that this ditch, by reason of its obstruction to the use of the
public streets, at the time of the acts complained of, was a nuisance, it must also be admitted
that it was not a nuisance per se. It was constructed for a necessary, useful and lawful
purpose, was used for such purpose, and therefore in its nature was not a nuisance, as a
matter of law. Nor as a matter of fact was it a nuisance while it was no hurt, detriment, or
offense to the public, or to any private citizen. If, then, it has become a nuisance, it is by
reason of a change of circumstances brought about neither by the ditch itself, nor its use.
Indeed, the sole matter complained of, to warrant its being regarded as a nuisance, is the
absence of bridges at street crossings. The town has become populous; its growth has
extended beyond the ditch and along its line for a great distance; streets laid out across its
course have come to be traveled so much, that without bridges, the ditch, as appears by the
testimony, has become inconvenient, detrimental, and an obstruction to the full, safe and
lawful use of such streets as highways by the public. To this extent, and from these causes
outside the ditch and its use per se, has the ditch come to be a public nuisance, if, as a matter
of fact, it is such. But whether it is such or not is a fact which must first be ascertained by
Cesz
judicial determination before it can be lawfully abated, either by the public or by a private
person.
In Joyce vs. Woods (78 Ky., 386, 388) the court said:
There was no judicial determination that there was a nuisance, and no opportunity offered
the owner of the lot to contest that matter. Under the exercise of the police power, it may be
conceded that municipalities can declare and abate nuisances in cases of necessity, without
citation and without adjudication as to whether there is in fact a nuisance. But whenever the
action of the municipality in declaring and abating a nuisance goes so far as to fix a burden
upon the owner of the property, he is entitled to be heard upon the question as to the
existence of the nuisance. This right to a hearing upon this question may come before or
after the nuisance is abated, as circumstances may require, but there must be an opportunity
offered him to be heard upon that matter before his property can be loaded with the cost of
the removal of the nuisance. To the extent that property is thus burdened by the action of
the city council, when there is no necessity to precipitate action without adjudication, the
owner is deprived of his property, regardless of "the law of the land." The meaning of that
provision of the constitution has generally been construed to be a law that hears before
condemning, and arrives at a judgment for the divestiture of the rights of property through
what is ordinarily understood to be judicial process — the general rules that govern society in
reference, to the rights of property; and it is only in extreme cases, where the preservation
and repose of society or the protection of the property rights of a large class of the
community absolutely require a departure, that the courts recognize any exception. In this
case there is no pretense of a necessity for precipitate action. There is no reason why
appellant should not have been permitted to test the question as to the existence of the
nuisance.
In Everett vs. Marquette (53 Mich., 450, 451) the court, per Cooley, J., said:
But it is not necessary in this case to determine whether the permission given by the village
council was in due form for the purposes of a permanent appropriation, or even whether the
council had the power to consent to such an appropriation. It is undoubted that the council
had general control of the streets under the village charter; and it was a part of its duty to
prevent the creation of any public nuisance within them. It is not to be assumed that consent
would have been given to such a nuisance, and when, by formal resolution the council
assumed to give permission to complainant to make the openings and build the stairways
complained of, it must have been done in the belief that no public inconvenience would
follow. If the permission was effectual for no other purpose, it at least rebutted any
presumption which might otherwise have existed, that this partial appropriation of the street
was per se a nuisance.
If the permission was a mere license, and the subsequent action of the city council is to be
regarded as a revocation of the license, it does not follow that the plaintiff has by the
revocation immediately been converted into a wrongdoer. The question will then be
whether the act of the complainant in maintaining his structures constitutes a public
nuisance; and while the city council is entitled, under its supervisory control of the public
streets, to consider and pass upon that question for the purpose of deciding upon the
institution of legal proceedings for abatement, it cannot make itself the judge. Maintaining a
nuisance is a public offense; and the fact, as in other cases of alleged criminality, is to be tried
on proper accusation and in the regular courts. The mere fact that the party makes use of
some part of a public street for his private purposes does not make out the public offense.
This was decided in People vs. Carpenter (1 Mich., 273), and has never been doubted in this
State.
The city in this case proceeding in an act of destruction on an assumption that the structures
were already condemned as illegal. This was unwarranted, and it was quite right that the
action should be restrained.
Page 3
The above authorities are collated in Judge Dillon's work on Municipal Corporations, fifth
edition, section 684, with the following comment by the author:
It is to secure and promote the public health, safety, and convenience that municipal
corporations are so generally and so liberally endowed with power to prevent and abate
nuisances. This authority and its summary exercise may be constitutionally conferred on the
incorporated place, and it authorizes its council to act against that which comes within the
legal notion of a nuisance; but such power, conferred in general terms, cannot be taken to
authorize the extrajudicial condemnation and destruction of that as a nuisance which, in its
nature, situation, or use, is not such.
The questions discussed in this august array of authorities are exactly those of the present
case, and the controlling principles and the reasoning upon which they are founded are so
fully and lucidly set forth as to justify us in refraining from comment of our own. It is clear
that municipal councils have, under the code, the power to declare and abate nuisances, but
it is equally clear that they do 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 they authorize the extrajudicial
condemnation and destruction of that as a nuisance which in its nature, situation, or use is
not such. These things must be determined in the ordinary courts of law.
In the present case it is certain that the ice factory of the plaintiff is not a nuisance per se. It is
a legitimate industry, beneficial to the people, and conducive to their health and comfort. If it
be in fact a nuisance due to the manner of its operation, that question cannot de determined
by a mere resolution of the board. The petitioner is entitled to a fair and impartial hearing
before a judicial tribunal.
The respondent has, we think, joined issued by its answer denying that it was intending to
proceed with the abatement of the alleged nuisance by arbitrary administrative proceedings.
This is the issue of the present case, and upon its determination depends whether the
injunction should be made permanent (but limited in its scope to prohibiting the closing of
petitioner's factory by administrative action), or whether the injunction should be dissolved,
which will be done in case it be shown that the municipal officials intend to proceed with
the abatement of the alleged nuisance in an orderly and legal manner.
It is said that the plaintiff cannot be compelled to build its smokestack higher if said stack is in
fact a nuisance, for the reason that the stack was built under authority granted by the
defendant, and in accordance with the prescribed requirements. If the charter or license
does not expressly subject the business or industry to the exercise of the police power by the
State, it is conceded by the great preponderance of authority that such a reservation is
implied to the extent that may be reasonably necessary for the public welfare. (Freud, Police
Power, § 361 et seq, and § 513 et seq.)
For the foregoing reasons, the order sustaining the plaintiff's demurrer to the defendant's
answer is reversed. The record will be returned to the court whence it came with instructions
to proceed with the trial of the cause in accordance with this opinion. No costs will be
allowed in this instance. So ordered.
[ GR No. L-24245, Apr 11, 1972 ]
LEONOR FARRALES v. CITY MAYOR OF BAGUIO
MAKALINTAL, J.:
This appeal by the plaintiffs from the decision of the Court of First Instance of Baguio in its
Civil Case No. 622 was taken to the Court of Appeals and subsequently certified by the latter
to this Court for the reason that only questions of law are involved.
Cesz
The decision appealed from states the facts and conclusions arrived at by the court a quo, as
follows:
"This is an action for damages. Plaintiff was the holder of a municipal license to sell liquor
and sari-sari goods. When the temporary building where she had her stall was demolished
in order that the city might construct a permanent building, Plaintiff was ordered to move
her goods to another temporary place until the permanent building was completed. She did
not like the location pointed out by city officials where she could install her temporary stall.
Instead, taking the law into her own hands, Plaintiff built a temporary shack at one end of
the Rice Section, Baguio City Market (see Exhibits 3, 4, and 6), without seeking prior permit or
permission from any city official. When the police threatened to demolish this shack, which
was built on the cement passageway at the end of the Rice Section building, Plaintiff came to
this Court seeking an injunction. Before this Court would issue an injunction a hearing was
held where this Court refused to issue the same unless Plaintiff could show proper permit.
Plaintiff could not do so, so the police demolished the shack, brought the materials and
goods to the City Hall and subsequently delivered both materials and goods to Plaintiff.
Plaintiff cited the police for contempt but this Court, in an order dated September 19, 1956,
denied Plaintiff's petition. That order was final in character - not interlocutory - and no
appeal having been made would operate as res judicata to his present suit which is based on
the same act of demolition. To evade the effects of res judicata, Plaintiff amended her
complaint so as to include as Defendants the policemen whom she claims did the
demolishing. The only question to be determined by this Court is whether the demolition of
the shack was in order or not. There is no doubt Plaintiff had no permit to build the shack
and this shack was built in the passageway where people pass when going to the hangar
market building. Plaintiff insists that the proper procedure should have been for either the
City Engineer or the City Health Officer to commence legal proceedings for the abatement of
this "nuisance." This Court believes that the police officers properly demolished the shack for
it had been built in defiance of orders from City Hall officials. Plaintiff had been assigned a
place where to install her shack she did not like this and, following her own desires, built the
shack in the middle of a passage. Should the police wait for the City Engineer or City Health
Officer to act in order to clear the passageway of this illegal construction? This Court
believes that they could clear the passageway on their own responsibility, just like they can
push a car that is parked in the wrong place without waiting for court proceedings. In fact in
the case of Verzosa vs. City of Baguio, G.R. No. L-13546, Sept. 30, 1960, our Supreme Court
permitted the removal of a building built under temporary permit on Session Road without
court proceedings simply because the temporary permit had expired. In this present case,
with greater reason - the removal of Plaintiff's building is justified.
The complaint of Plaintff is, therefore, dismissed with costs against Plaintiff."
The first error assigned by the appellant refers to the order of the trial court refusing to
declare the defendants in default and allowing them to file their answer to the complaint
after the expiration of the reglementary period for that purpose. Such action of the court
was justified and indeed explained by it in an order dated September 29, 1956, denying the
plaintiff's motion for reconsideration of the permission granted on August 24, 1956 to the
defendants to file their answer. The Court said:
"The stenographic notes of that day show that Atty. Baclit appeared in this case on behalf of
the Plaintiffs and when the issue of the sufficiency of Plaintiffs' complaint was raised by the
City Attorney, and Atty. Baclit said he had no knowledge of the same, this Court suspended
hearing to wait for Atty. Benjamin Rillera, attorney of record of Plaintiffs and who was the
one who filed the Motion to Declare Defendant in Default. Subsequently that morning, Atty.
Rillera came and manifested to this Court his willingness to withdraw his motion and to
Page 4
allow Defendants to file their answer. This was the reason for the order of this Court dated
August 24, 1956. Plaintiffs are bound by the actuations of their Counsel. The fact that he
refused to file a motion for reconsideration and instead insisted in withdrawing as counsel
for Plaintiffs would be no justification for revoking the order of August 24, 1956. The motion
for reconsideration filed by Plaintiffs personally is, therefore, denied for lack of merit."
The other errors assigned by the appellant have to do with the merits of the case. The
appellant's contention is that the shack or temporary stall put up by her inside the premises
of the Baguio City Market was not a nuisance, or if it was a nuisance at all it was one per
accidens and not per se and therefore could be abated only after the corresponding judicial
proceeding. The uncontradicted evidence does not support the appellant's contention. In
the first place she had no permit to put up the temporary stall in question in the precise place
where she did so. In the second place, its location on the cement passageway at the end of
the Rice Section building was such that it constituted an obstruction to the free movement of
people. As the court a quo correctly observed, this fact is shown clearly on the photographs
marked Exhibits 3, 4, and 6. Judging by these photographs it cannot even be said that what
the appellant constructed was a temporary stall. It was nothing more than a lean-to,
improvised with pieces of used scrap iron roofing sheets. It was obviously not a "building"
within the meaning of the Charter of the City of Baguio (Art. V, Section 2557 [d] Adm. Code)
relied upon by the appellant and under which the power "to cause buildings, dangerous to
the public, to be made secure or torn down," is vested in the City Engineer, subject to the
approval of the City Mayor.
It is true that under Article 702 of the Civil Code "the District Officer shall determine whether
or not abatement, without judicial proceedings, is the best remedy against a public
nuisance;" but in this case the failure to observe this provision is not in itself a ground for the
award of damages in favor of the appellant and against the appellees. According to Article
707 of the same Code, a public official extrajudicially abating a nuisance shall be liable for
damages in only two cases: (1) if he causes unnecessary injury, or (2) if an alleged nuisance
is later declared by the courts to be not a real nuisance.
Here no unnecessary injury was caused to the appellant, and not only was there no judicial
declaration that the alleged nuisance was not really so but the trial court found that it was in
fact a nuisance. Indeed it may be said that the abatement thereof was not summary, but
through a judicial proceeding. The appellant, after having been warned by the city police of
Baguio that the lean-to she had put up without a permit would be demolished, went to
court and asked for an injunction. A hearing was then held and the court refused to issue
the writ unless she showed the proper permit. The denial of her petition for injunction upon
her failure to produce such a permit was in effect an authority for the police to carry out the
act which was sought to be enjoined. And it was an authority which was later confirmed by
the same court in its decision. Under the circumstances there is absolutely no ground to
award damages in favor of the appellant.
WHEREFORE , the judgment appealed from is affirmed, without pronouncement as to costs.
G.R. No. 112331 May 29, 1996
ANASTACIA QUIMEN, petitioner, vs. COURT OF APPEALS and YOLANDA Q. OLIVEROS,
respondents.
BELLOSILLO, J:
IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will cause
least prejudice shall be chosen. However, if the two circumstances do not concur in a single
tenement, the way where damage will be least shall be used even if not the shortest route.1
Cesz
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
Page 5
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
Cesz
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
Page 6
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
Cesz
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.
[ G.R. No. 7386, March 30, 1912 ]
THE ROMAN CATHOLIC ARCHBISHOP OF MANILA, PETITIONER AND APPELLEE, VS. PEDRO
P. ROXAS, OPPONENT AND APPELLANT.
TRENT, J.:
This appeal involves only a right of way claimed by the appellant Pedro P. Roxas, the owner
of the dominant estate, across parcel L, the property of the appellee, to Calle Tejeron, a
distance of about 100 meters. The servient estate is bounded on the north by an estero; on
the west by the dominant estate; on the southwest by Calle Tejeron; and on the west by
lands of Francisco Managan. The eastern line, which joins the dominant estate, is 265 meters
long. The appellant claims a right of way starting across parcel L at a point 198 meters from
the southern extremity of this line. During the trial of this case in the court below the parties
entered into the following agreement:
"It is admitted as a question of fact that the road between the Hacienda de San Pedro Macati
and Calle Tejeron, which, according to the witness Leopoldo Areopaguita, was formerly a
meter and a half or two meters wide, although at present it has a greater width, has been
used from time immemorial by the tenants of the Hacienda de San Pedro Macati for the
passage of carts entering and leaving the Hacienda."
In addition to the admitted facts as above set forth, the testimony shows that the road in
question is now some 4 meters wide; that since time out of mind there has existed upon lot L
near the middle, and also very near this rpad, a small church; that the faithful use said road in
going to this place of worship and that said road is not only used by the tenants of the
appellant but also' by the people living in the sitio of Suavoy.
It is admitted by both parties that the tenants of the dominant estate have used the road in
question since time immemorial for carts, both for entering and leaving the hacienda. It is
also an established fact that the said hacienda (the dominant estate) is partly bounded on
the south by Calle Tejeron. The point where it js claimed that this right of way starts across lot
L is only 198.25 meters from the said street. So the claim of the appellant cannot be that the
Page 7
right of way exists by necessity growing out of the . peculiar location of his property, but
simply that it arises by prescription, founded alone upon immemorial use by his tenants.
The result is that the road which the appellant seeks to have declared a right of way for the
benefit of his hacienda has been used for a great number of years by the members of the
appellee's church to go to and from the ermita, and also by the appellant's tenants, and by
other people. And furthermore, while it is true that the appellant's tenants have used this
road for carts as above stated, yet it has not been shown that such use was absolutely
necessary in order to cultivate the dominant estate, but, on the contrary, it clearly appears
that the said tenants crossed lot L merely on account of convenience, as they could have
reached the public highway by going in other directions, especially south, only 198 meters.
Therefore, the admitted and established facts show (1) that the use of the road by the
tenants of the appellant in this manner and under these circumstances has not been such as
to create an easement by prescription or in any other manner; and (2) that the use of said
road by all has been by permission or tolerance of the appellee.
Where a tract of land, as in the case at bar, attached to a public meeting house such as the
ermita is designedly left open and uninclosed for the convenience of the members or
worshippers of that church, the mere passage of persons over it in common with those for
whose, use it was appropriated is to be regarded as permissive and under an implied license,
arid not adverse. Such a use is not inconsistent with the only use which the proprietor
thought fit to make of the land, and until the appellee thinks proper to inclose it, such use is
not adverse and will not preclude it from enclosing the land when other views of its interests
render it proper to do so. And though an adjacent proprietor may make such use of the
open land more frequently than another, yet the same rule will apply unless there be some
decisive act indicating a separate and exclusive use under a claim of right A different doctrine
would have a tendency to destroy all neighborhood accommodations in the way of travel;
for if it were once understood that a man, by allowing his neighbor to pass through his farm
without objection over the pass-way which he used himself, would thereby, after the lapse of
time, confer a right on such neighbor to require the pass-way to be kept open for his benefit
and enjoyment, a prohibition against all such travel would immediately ensue. And again, it
must be remembered that a right of way, like the one sought to be established in the case at
bar, is a charge imposed upon real property for the benefit of another estate belonging to a
different owner. Such a right of way is a privilege or advantage in land existing distinct from
the ownership of the soil; and because it is a permanent interest in another's land with a
right to enter at all times and enjoy it, it can only be founded upon an agreement or upon
prescription. And when the latter is relied upon in those cases where the right of way is not
essential for the beneficial enjoyment of the dominant estate, the proof showing adverse use
which is an affirmative claim must be sufficiently strong and convincing to overcome the
presumption of permissive use or license, as such a right of way is never implied because it is
convenient. For these reasons, the judgment appealed from denying the appellant's claim to
a right of way across lot L is affirmed, with costs against the appellant.
G.R. No. 80511 January 25, 1991
COSTABELLA CORPORATION, petitioner, vs. COURT OF APPEALS, KATIPUNAN LUMBER CO.,
INC., AURORA BUSTOS LOPEZ, MANUEL S. SATORRE, JR., JOSEFA C. REVILLES, FELIX
TIUKINHOY, JR., PERFECTA L. CHUANGCO, and CESAR T. ESPINA, respondents.
SARMIENTO, J.:
The principal issue raised in this petition for review on certiorari of the decision1 dated May
30, 1986 of the Court of Appeals,2 which modified the decision3 rendered by the Regional
Trial Court of Lapu-Lapu City in Cebu, is whether or not the private respondents had
Cesz
acquired an easement of right of way, in the form of a passageway, on the petitioner's
property.
It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122
and 5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on
which it had constructed a resort and hotel. The private respondents, on the other hand, are
the owners of adjoining properties more particularly known as Lots Nos. 5123-A and 5123-C
of the Opon Cadastre.
Before the petitioner began the construction of its beach hotel, the private respondents, in
going to and from their respective properties and the provincial road, passed through a
passageway which traversed the petitioner's property. In 1981, the petitioner closed the
aforementioned passageway when it began the construction of its hotel, but nonetheless
opened another route across its property through which the private respondents, as in the
past, were allowed to pass. (Later, or sometime in August, 1982, when it undertook the
construction of the second phase of its beach hotel, the petitioner fenced its property thus
closing even the alternative passageway and preventing the private respondents from
traversing any part of it.)
As a direct consequence of these closures, an action for injunction with damages was filed
against the petitioner by the private respondents on September 2, 1982 before the then
Court of First Instance of Cebu.4
In their complaint, the private respondents assailed the petitioner's closure of the original
passageway which they (private respondents) claimed to be an "ancient road right of way"
that had been existing before World War II and since then had been used by them, the
community, and the general public, either as pedestrians or by means of vehicles, in going to
and coming from Lapu-Lapu City and other parts of the country. The private respondents
averred that by closing the alleged road right of way in question, the petitioner had deprived
them access to their properties and caused them damages.
In the same complainant, the private respondents likewise alleged that the petitioner had
constructed a dike on the beach fronting the latter's property without the necessary permit,
obstructing the passage of the residents and local fishermen, and trapping debris and
flotsam on the beach. They also claimed that the debris and flotsam that had accumulated
prevented them from using their properties for the purpose for which they had acquired
them. The complaint this prayed for the trial court to order the re-opening of the original
passageway across the petitioner's property as well as the destruction of the dike.5
In its answer,6 the petitioner denied the existence of an ancient road through its property
and counter-averred, among others, that it and its predecessors-in-interest had permitted the
temporary, intermittent, and gratuitous use of, or passage through, its property by the
private respondents and others by mere tolerance and purely as an act of neighborliness. It
justified the walling in of its property in view of the need to insure the safety and security of
its hotel and beach resort, and for the protection of the privacy and convenience of its hotel
patrons and guests. At any rate, the petitioner alleged, the private respondents were not
entirely dependent on the subject passageway as they (private respondents) had another
existing and adequate access to the public road through other properties. With respect to
Page 8
the dike it allegedly constructed, the petitioner stated that what it built was a breakwater on
the foreshore land fronting its property and not a dike as claimed by the private respondents.
Moreover, contrary to the private respondents' accusation, the said construction had
benefitted the community especially the fishermen who used the same as mooring for their
boats during low tide. The quantity of flotsam and debris which had formed on the private
respondents' beach front on the other hand were but the natural and unavoidable
accumulations on beaches by the action of the tides and movement of the waves of the sea.
The petitioner's answer then assailed the private respondents' complaint for its failure to
implead as defendants the owners of the other properties supposedly traversed by the
alleged ancient road right way, indispensable parties without whom no final adjudication of
the controversy could be rendered.7
After trial, the court a quo rendered a decision on March 15, 1984 finding that the private
respondents had acquired a vested right over the passageway in controversy based on its
long existence and its continued use and enjoyment not only by the private respondents, but
also by the community at large. The petitioner in so closing the said passageway, had
accordingly violated the private respondents' vested right. Thus, the trial court ordered the
petitioner:
1. To open and make available the road in question to the plaintiffs and the general public at
all times free of any obstacle thereof, unless the defendant, shall provide another road
equally accessible and convenient as the road or passage closed by the defendant;
2. To pay the plaintiff Katipunan Lumber Company, Inc. the amount of FIVE THOUSAND
PESOS (P5,000.00) a month beginning January, 1983, and the plaintiff Perfecto Guangco the
sum of TWO HUNDRED PESOS (P200.00) a month beginning September, 1982, representing
their respective expenditures they had incurred in other beach resorts after the road was
closed, until the passageway claimed by them is opened and made available to them, or if
the defendant chooses to provide another road, until such road is made available and
conveniently passable to the plaintiffs and the general public; and
3. To pay the sum of FIFTEEN THOUSAND PESOS (P15,000.00) attorney's fees, and to pay
the costs.8
Both parties elevated the trial court's decision to the Court of Appeals, with the petitioner
questioning the alleged "vested right" of the private respondents over the subject
passageway, and the private respondents assailing the dismissal of their complaint insofar as
their prayer for the demolition of the petitioner's "dike" is concerned.
In its decision, the respondent Appellate Court held as without basis the trial court's finding
that the private respondents had acquired a vested right over the passageway in question by
virtue of prescription.9 The appellate court pointed out that an easement of right of way is a
discontinuous one which, under Article 622 of the New Civil Code, may only be acquired by
virtue of a title and not by prescription.10 That notwithstanding, the appellate court went on
to rule that ". . . in the interest of justice and in the exercise by this Court of its equity
jurisdiction, there is no reason for Us in not treating the easement here sought by appellees
Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is not dependent upon the
claims of the parties but a compulsory one that is legally demandable by the owner of the
Cesz
dominant estate from the owner of the servient estate."11 Thus the appellate court: (1)
granted the private respondents the right to an easement of way on the petitioner's property
using the passageway in question, unless the petitioner should provide another passageway
equally accessible and convenient as the one it closed; (2) remanded the case to the trial
court for the determination of the just and proper indemnity to be paid to the petitioner by
the private respondents for the said easement; and (3) set aside the trial court's award of
actual damages and attorney's fees.12
On petitioner's motion for partial reconsideration, the respondent court issued on October
27, 1987 a resolution13 denying the said motion. The Appellate Court however in denying
the petitioner's motion for reconsideration stated that:
. . . While it is true that there is another outlet for the plaintiff to the main road, yet such
outlet is a new road constructed in 1979, while the road closed by defendant existed since
over 30 years before. Legally, the old road could be closed; but since the existing outlet is
inconvenient to the plaintiff, equitably the plaintiff should be given a chance to pay for a
more convenient outlet through the land of the defendant at a point least prejudicial to the
latter. In any event, the plaintiff shall pay for all damages that defendant corporation may
sustain and the defendant regulates the manner of use of the right of way to protect
defendant's property and its customers. This is the gist of Our decision.14
Now before us, the petitioner contends that the decision of the respondent appellate court is
grossly erroneous and not in accord with the provisions of Articles 649 and 650 of the Civil
Code on easements and the prevailing jurisprudence on the matter.
The petition is meritorious.
It is already well-established that an easement of right of way, as is involved here, is
discontinuous15 and as such can not be acquired by prescription.16 Insofar therefore as the
appellate court adhered to the foregoing precepts, it stood correct. Unfortunately, after
making the correct pronouncement, the respondent Appellate Court did not order the
reversal of the trial court's decision and the dismissal of the complaint after holding that no
easement had been validly constituted over the petitioner's property. Instead, the Appellate
Court went on to commit a reversible error by considering the passageway in issue as a
compulsory easement which the private respondents, as owners of the "dominant" estate,
may demand from the petitioner the latter being the owner of the "servient" estate.
It is provided under Articles 649 and 650 of the New Civil Code that:
Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables pertaining to other persons and
without adequate outlet to a public highway, is entitled to demand a right of way through
the neighboring estates, after payment of the proper indemnity.
Page 9
Should this easement be established in such a manner that its use may be continuous for all
the needs of the dominant estate, establishing a permanent passage, the indemnity shall
consist of the value of the land occupied and the amount of the damage caused to the
servient estate.
In case the right of way is limited to the necessary passage for the cultivation of the estate
surrounded by others and for the gathering of its crops through the servient estate without a
permanent way, the indemnity shall consist in the payment of the damage caused by such
encumbrance.
This easement is not compulsory if the isolation of the immovable is due to the proprietor's
own acts.
Art. 650. The easement of right of way shall be established at the point least prejudicial to
the servient estate, and, insofar as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest.
Based on the foregoing, the owner of the dominant estate may validly claim a compulsory
right of way only after he has established the existence of four requisites, to wit: (1) the
(dominant) estate is surrounded by other immovables and is without adequate outlet to a
public highway; (2) after payment of the proper indemnity; (3) the isolation was not due to
the proprietor's own acts; and (4) the right of way claimed is at a point least prejudicial to the
servient estate. Additionally, the burden of proving the existence of the foregoing pre-
requisites lies on the owner of the dominant estate.17
Here, there is absent any showing that the private respondents had established the existence
of the four requisites mandated by law. For one, they failed to prove that there is no
adequate outlet from their respective properties to a public highway. On the contrary, as
alleged by the petitioner in its answer to the complaint, and confirmed by the appellate
court, "there is another outlet for the plaintiffs (private respondents) to the main road."18
Thus, the respondent Court of Appeals likewise admitted that "legally the old road could be
closed."19 Yet, it ordered the re- opening of the old passageway on the ground that "the
existing outlet (the other outlet) is inconvenient to the plaintiff."20 On this score, it is
apparent that the Court of Appeals lost sight of the fact that the convenience of the
dominant estate has never been the gauge for the grant of compulsory right of way.21 To
be sure, the true standard for the grant of the legal right is "adequacy." Hence, when there is
already an existing adequate outlet from the dominant estate to a public highway, even if
the said outlet, for one reason or another, be inconvenient, the need to open up another
servitude is entirely unjustified. For to justify the imposition of an easement or right of way,
"there must be a real, not a fictitious or artificial necessity for it."22
Further, the private respondents failed to indicate in their complaint or even to manifest
during the trial of the case that they were willing to indemnify fully the petitioner for the
right of way to be established over its property. Neither have the private respondents been
able to show that the isolation of their property was not due to their personal or their
predecessors-in-interest's own acts. Finally, the private respondents failed to allege, much
more introduce any evidence, that the passageway they seek to be re-opened is at a point
least prejudicial to the petitioner. Considering that the petitioner operates a hotel and beach
Cesz
resort in its property, it must undeniably maintain a strict standard of security within its
premises. Otherwise, the convenience, privacy, and safety of its clients and patrons would be
compromised. That indubitably will doom the petitioner's business. It is therefore of great
importance that the claimed light of way over the petitioner's property be located at a point
least prejudicial to its business.
Hence, the Private respondents' properties can not be said to be isolated, for which a
compulsory easement is demandable. Insofar therefore as the Appellate Court declared the
case to be proper as a controversy for a compulsory right of way, this Court is constrained to
hold that it was in error.
Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via
of the Romans.23 They are demanded by necessity, that is, to enable owners of isolated
estates to make full use of their properties, which lack of access to public roads has denied
them.24 Under Article 649 of the Civil Code, they are compulsory and hence, legally
demandable, subject to indemnity and the concurrence of the other conditions above-
referred to.
As also earlier indicated, there must be a real necessity therefor, and not mere convenience
for the dominant estate. Hence, if there is an existing outlet, otherwise adequate, to the
highway, the "dominant" estate can not demand a right of way, although the same may not
be convenient. Of course, the question of when a particular passage may be said to be
"adequate" depends on the circumstances of each case. Manresa, however, says: "In truth,
not only the estate which absolutely does not possess it should be considered in this
condition, but also that which does not have one sufficiently safe or serviceable; an estate
bordering a public road through an inaccessible slope or precipice, is in fact isolated for all
the effects of the easement requested by its owner. On the other hand, an estate which for
any reason has necessarily lost its access to a public road during certain periods of the year is
in the same condition. . . . There are some who propound the query as to whether the fact
that a river flows between the estate and the public road should be considered as having the
effect of isolating the estate. . . . If the river may be crossed conveniently at all times without
the least danger, it cannot be said that the estate is isolated; in any other case, the answer is
in the affirmative."25
The isolation of the dominant estate is also dependent on the particular need of the
dominant owner, and the estate itself need not be totally landlocked. What is important to
consider is whether or not a right of way is necessary to fill a reasonable need therefor by the
owner.26 Thus, as Manresa had pointed out, if the passageway consists of an "inaccessible
slope or precipice,"27 it is as if there is no passageway, that is, one that can sufficiently fulfill
the dominant owner's necessities, although by the existence of that passageway the
property can not be truly said that the property is isolated. So also, while an existing right of
way may have proved adequate at the start, the dominant owner's need may have changed
since then, for which Article 651 of the Code allows adjustments as to width.28
But while a right of way is legally demandable, the owner of the dominant estate is not at
liberty to impose one based on arbitrary choice. Under Article 650 of the Code, it shall be
established upon two criteria: (1) at the point least prejudicial to the servient state; and (2)
where the distance to a public highway may be the shortest. According, however, to one
commentator, "least prejudice" prevails over "shortest distance."29 Yet, each case must be
Page 10
weighed according to its individual merits, and judged according to the sound discretion of
the court. "The court," says Tolentino, "is not bound to establish what is the shortest; a longer
way may be established to avoid injury to the servient tenement, such as when there are
constuctions or walls which can be avoided by a roundabout way, or to secure the interest
of the dominant owner, such as when the shortest distance would place the way on a
dangerous decline."30
It is based on these settled principles that we have resolved this case.
WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987,
of the respondent Court of Appeals are SET ASIDE and the private respondents' complaint is
hereby DISMISSED. Costs against the private respondents.
SO ORDERED.
G.R. No. 77628 March 11, 1991
TOMAS ENCARNACION, petitioner, vs. THE HONORABLE COURT OF APPEALS and THE
INTESTATE ESTATE OF THE LATE EUSEBIO DE SAGUN and THE HEIRS OF THE LATE
ANICETA MAGSINO VIUDA DE SAGUN,* respondents.
FERNAN, C.J.:
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.
Cesz
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.
Page 11

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
Cesz
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.
[ G.R. No. L-14652, June 30, 1960 ]
JUAN GARGANTOS, PETITIONER, VS. TAN YANON AND THE COURT OF APPEALS,
RESPONDENTS.
GUTIERREZ DAVID, J.:
Juan Gargantos appeals by certiorari from the decision of the Court of Appeals reversing the
judgment of the Court of First Instance of Romblon.
The record discloses that the late Francisco Sanz was the former owner of a parcel of land
containing 888 square meters, with the buildings and improvements thereon, situated in the
poblacion of Romblon. He subdivided the lot into three and then sold each portion to
different persons. One portion was purchased by Guillermo Tengtio who subsequently sold
it to Vicente Uy Veza. Another portion, with the house of strong materials thereon, was sold
in 1927 to Tan Yanon, respondent herein. This house has on its northeastern side, doors and
windows overlooking the third-portion, which, together with the camarin and small building
thereon, after passing through several hands, was finally acquired by Juan Gargantos,
petitioner herein.
On April 23, 1955, Gargantos applied to the Municipal Mayor of Romblon for a permit to
demolish the roofing of the old camarin. The permit having been granted, Gargantos tore
down the roof of the camarin. On May 11,1955, Gargantos asked the Municipal Council of
Romblon for another permit, this time in order to construct a combined residential house
and warehouse on his lot Tan Yanon opposed approval of this application.
Because both the provincial fiscal and district engineer of Romblon recommended granting
of the building permit to Gargantos, Tan Yanon filed against Gargantos an action to restrain
him from constructing a building that would prevent plaintiff from receiving light and
enjoying the view through the windows of his house, unless such building is erected at a
distance of not less than three meters from the boundary line between the lots of plaintiff
Page 12
and defendant, and to enjoin the members of the Municipal Council of Romblon from issuing
the corresponding building permit to defendants. The case as against the members of the
Municipal Council was subsequently dismissed with concurrence of plaintiff's council. After
trial, the Court of First Instance of Romblon rendered judgment dismissing the complaint and
ordering plaintiff, to pay defendant the sum of P12,500.00 by way of compensatory,
exemplary, moral and moderate damages.
On appeal, the Court of Appeals set aside the decision of the Court of First Instance of
Romblon and enjoined defendant from constructing his building unless "he erects the same
at a distance of not less than three meters from the boundary line of his property, in
conformity with Article 673 of the New Civil Code."
So Juan Gargantos filed this petition for review of the appellate Court's decision. The focal
issue herein is whether the property of respondent Tan Yanon has an easement of light and
view against the property of petitioner Gargantos.
The kernel of petitioner's argument is that respondent never acquired any easement either
by title or by prescription. Assuredly, there is no deed establishing an easement. Likewise,
neither petitioner nor his predecessors-in-interest have ever executed any deed whereby
they recognized the existence of the easement, nor has there been final judgment to that
effect. Invoking our decision in Cortes vs. Yu-Tibo (2 Phil., 24), petitioner maintains that
respondent has not acquired an easement by prescription because he has never formally
forbidden petitioner from performing any act which would be lawful without the easement,
hence the prescriptive period never started.
It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and the doctrine in
the Yu-Tibo case are not applicable herein because the two estates, that now owned by
petitioner, and that owned by respondent, were formerly owned by just one person,
Francisco Sanz. It was Sanz who introduced improvements on both properties. On that
portion presently belonging to respondent, he constructed a house in such a way that the
northeastern side thereof extends to the wall of the 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 of sale did not provide that
the easement of light and view would not be established. This then is precisely the case
covered by Article 541, O.C.C. (now Article 624, N.C.C.) which provides that the existence of
an apparent sign of easement between two estates, established by the proprietor of both,
shall be considered, if one of them is alienated, as a title so that the easement will continue
actively and passively, unless at the time the ownership of the two estates is divided, the
contrary is stated in the deed of alienation of either of them, or the sign is made to disappear
before the instrument is executed. The existence of the doors and windows on the
northeastern side of the aforementioned house, is equivalent to a title, for the visible and
permanent sign of an easement is the title that characterizes its existence (Amor vs.
Florentino, 74 Phil., 403). It should be noted, however, that while the law declares that the
easement is to "continue" the easement actually arises for the first time only upon alienation
of either estate, inasmuch as before that time there is no easement to speak of, there being
but one owner of both estates (Article 530, O.C.C., now Article 613, N.C.C.).
Cesz
We find that respondent Tan Yanon's property has an easement of light and view against
petitioner's property. By reason of this easement, petitioner cannot construct on his land any
building unless he erects it at a distance of not less than three meters from the boundary line
separating the two estates.
Wherefore, the appealed decision is hereby affirmed with costs against petitioner.
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.
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
Page 13
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
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
Cesz
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:
3. That by written agreement, plaintiff and defendant spouses Antonio Cardenas and Mae
Linda Cardenas agreed that in the event they decide to sell the adjacent Lot No. 7501-B of
the subdivision plan (LRC) Psd. 23638, a portion of Lot No. 7501 of the cadastral survey of
Cebu, LRC (GLRC) Cad. Record No. 9465, situated in the City of Cebu, containing an area of
SIX HUNDRED TWELVE (612) Square meters more or less which lot is adjacent to Lot No.
7501-A of the plaintiff and where part of the plaintiffs apartment is standing on, the same
should be sold to the plaintiff, but far from compliance of the written agreement, defendant
spouses Antonio Cardenas and Mae Linda Cardenas sureptiously [sic] sold the aforestated
Lot No. -7501-B- to the defendant spouses, Romeo Sim and Pacita Sim on July 23, 1982 as
per Deed of Sale notarized by Notary Public, Jorge S. Omega and entered in his Notarial
Register as Doc. No. 462; Page No. -94- Book No. 11, Series of 1982;
4. That due to the sale by the defendant spouses Antonio Cardenas and Mae Linda Cardenas
of the property in question to spouses Romeo Sim and Pacita Lim, plaintiff suffered moral
damages in the form of mental anguish, sleepless nights, mental torture, for which he is
entitled to a compensation in the amount to be established during the trial of the case and
has incurred litigation expenses subject for reimbursentent and attorneys fee in the sum of
P10,000.00 which should be chargeable to both defendant spouses;13
and the plaintiff (herein petitioner) prayed, among others: "(c) That defendant spouses
Romeo Sim and Pacita Sim and spouses Antonio Cardenas and Mae Linda Cardenas be
ordered to pay plaintiff moral damages, litigation expenses and attorneys fees in the amount
of P50,000.00." 14
That there was a written agreement, as alleged in the complaint, between the plaintiff
Eduardo 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
Page 14

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
Cesz
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.
[ G.R. No. L-21727, December 16, 1970 ]
CRISPINA SALAZAR, PETITIONER, VS. GUILLERMO GUTIERREZ, AND DAMASO MENDOZA,
RESPONDENTS.
MAKALINTAL, J.:
Respondents have filed a motion for reconsideration and/or modification of the decision of
this Court dated May 29, 1970, with notice sent by registered mail to petitioner's former
counsel of record and subsequently to the new counsel who substituted him, but the first
notice was returned unclaimed and the second elicited no answer to the motion.
The first point raised by respondents has to do with the main issue in this case, namely,
whether or not petitioner had acquired an easement of aqueduct over respondent Gutierrez'
lot No. 433 for the irrigation of petitioner's adjacent property, known as lot No. 436. The
arguments advanced in connection with this issue have been sufficiently considered and
discussed in the decision and we see no reason to change our findings and conclusions.
The second point refers to the award of damages by the trial court as affirmed by us in the
judgment sought to be reconsidered. Respondents submit, that the said award was reversed
by the Court of Appeals and that such reversal has not been assigned as error by petitioner
before this Court. It should be noted that the Court of Appeals did not touch on the
question of damages at all although the same was raised squarely before it in the appeal
thereto by herein respondents, and that the reversal of the award was merely a
consequence of the said court's decision to the effect that no easement of aqueduct had
been acquired. Petitioner came to us in turn for a review of that decision and for the
affirmance of that of the trial court, and for that purpose it was not necessary to attribute
error to the Court of Appeals on a question not passed upon by it.
Page 15
By the same token, of course, respondents are not now precluded from asking this Court to
take a second look at the question of damages, especially since they did raise it before the
Court of Appeals.

The three amounts awarded by the trial court are: the P4,700 by way of actual damages
suffered by petitioner prior to the rendition of the judgment on April 10, 1956; P1,360
annually thereafter, beginning with the agricultural year 1956-1957 until restoration of the
irrigation canal in dispute P5,000 as moral damages; and P1,000 as attorney's fees.

With respect to the item of actual damages, respondents submit that there is not enough
evidence to justify it, and that the failure of the crops on petitioner's land after the canal was
closed by respondents could have been due to a number of other causes, such as pests and
plant diseases. The finding of the trial court on this point, however is not without reasonable
basis. The canal was demolished on February 24, 1953. For the preceding three years the
produce of petitioner's land was as follows: 1949 to 1950 - 115 cavans (wet season) and 50
cavans (dry season), or 165 cavans in all; 1950 to 1951 - 120 cavans (wet season) and 63
cavans (dry season), or 183 cavans in all; and 1951 to 1952 - 130 cavans (wet season) and 75
cavans (dry season), or 205 cavans in all. The average yearly produce during those three
years, as correctly found by the trial court, was 184 cavans of palsy. After the destruction of
the canal the yield was reduced to 54 cavans for the agricultural year 1953 to 1954; 80
cavans for 1954 to 1955; and 9 cavans for the year after that. The average loss therefore
was 136 cavans a year, or 408 cavans far three years, which, added to 62 cavans unrealized
during the dry season of 1952 to 1953, aggregated a total of 470 cavans. This is the basis of
the award of actual damages in the sum of P4,700, computed at the price of P10 a cavan.
The award, it is clear, is neither speculative nor unjustified.

We do agree with respondents, however, that the award of P5, 000 as moral damages
should be eliminated. This case does not fall under any of the instances wherein such
damages may be recovered, as enumerated in Articles 2219 and 2220 of the Civil Code.
With respect to the latter Article there is no clear showing that the demolition of the canal in
question, which was admittedly on respondents' property, was done by them willfully and in
bad faith, that is, purposely to cause injury to petitioner. The trial court's finding on this point
is a mere conclusion, without reference to any particular evidence of record.

In connection with the award of attorney's fees, the same is authorized in any case "where
the court deems it just and equitable that (they) should be recovered." We do not consider
that the trial court committed a rever-sible error in this regard, or that the amount fixed by it
is excessive.

In view of the foregoing, the judgment is modified by eliminating therefrom the award of
moral damages, and maintained in all other respects.

Cesz Page 16