Cases Prop Easement Full

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.
L-37409 May 23, 1988 NICOLAS VALISNO, plaintiff-appellant, vs. FELIPE ADRIANO, defendant-appellee. GRIO-AQUINO, J.: This case was certified to this Court by the Court of Appeals in a resolution dated August 10, 1973, the sole issue being a question of law and beyond its jurisdiction. to decide.
chanroblesvirtualawlibrary chanrobles virtual law library
Admitted by the parties in their pleading and established during the trial on the merits are the following material facts:
chanrobles virtual law library
On June 20, 1960, 'the plaintiff-appellant file against the defendant-appellee an action for damages docketed as Civil Case No. 3472 in the Court of First Instance of Nueva Ecija. The complaint alleged that the plaintiff is the absolute owner and actual possessor of a 557,949square-meter parcel of land in La Fuente, Santa Rosa, Nueva Ecija, and more particularly described in his Transfer Certificate of Title No. NT-16281. The plaintiff-appellant Valisno bought the land from the defendant-appellees sister, Honorata Adriano Francisco, on June 6,1959. (Deed of Absolute Sale, Exh. "A".) The land which is planted with watermelon, peanuts, corn, tobacco, and other vegetables adjoins that of the appellee Felipe Adriano on the bank of the Pampanga River. Both parcels of land had been inherited by Honorata Adriano Francisco and her brother, Felipe Adriano, from their father, Eladio Adriano. At the time of the sale of the land to Valisno, the land was irrigated by water from the Pampanga River through a canal about seventy (70) meters long, traversing the appellee's land.
On December 16, 1959, the appellee levelled a portion of the irrigation canal so that the appellant was deprived of the irrigation water and prevented from cultivating his 57-hectare land.
The appellant filed in the Bureau of Public Works and Communications a complaint for deprivation of water rights. A decision was rendered on March 22, 1960 ordering Adriano to reconstruct the irrigation canal, "otherwise judicial action shall be taken against him under the provisions of Section 47 of Act 2152 (the Irrigation Act), as amended." Instead of restoring the irrigation canal, the appellee asked for a reinvestigation of the case by the Bureau of Public Works and Communications. A reinvestigation was granted.
In the meantime, plaintiff Valisno rebuilt the irrigation canal at his own expense because his need for water to irrigate his watermelon fields was urgent.
On June 20, 1960, he filed a complaint for damages in the Court of First Instance (now Regional Trial Court) of Nueva Ecija (Civil Case No. 3472) claiming that he suffered damages amounting to P8,000 when he failed to plant his fields that year (1960) for lack of irrigation water, P800 to reconstruct the canal on defendant Adriano's land, and P1,500 for attorney's fees and the costs of suit.
On October 25, 1961, the Secretary of Public Works and Communications reversed the Bureau's decision by issuing a final resolution dismissing Valisno's complaint. The Secretary held that Eladio Adriano's water rights which had been granted in 1923 ceased to be enjoyed by him in 1936 or 1937, when his irrigation canal collapsed. His non-use of the water right since then for a period of more than five years extinguished the grant by operation of law, hence the water rights did not form part of his hereditary estate which his heirs partitioned among themselves. Valisno, as vendee of the land which Honorata received from her father's estate did not acquire any water rights with the land purchased.
In his answer to the damage suit (Civil Case No. 3472), the defendant Felipe Adriano admitted that he levelled the irrigation canal on his land, but he averred: that neither his late father nor his sister Honorata possessed water rights for the land which she sold to the appellant; that he (the appellee) applied for water rights for his land in 1956 and obtained the same in 1958; and that he had a perfect right to level his land for his own use because he merely allowed his sister to use his water rights when she still owned the adjacent land. He set up a counterclaim for P3,000 as damages incurred by him in levelling the land on which the appellant dug an irrigation canal, P2,000 as actual damages, P3,000 as attorney's fees, and expenses of litigation.
In a decision dated April 21, 1966, the trial court held that the plaintiff had no right to pass through the defendant's land to draw water from the Pampanga River. It pointed out that under Section 4 of the Irrigation Law, controversies between persons claiming a right to water from a stream are within the jurisdiction of the Secretary of Public Works and his decision on the matter is final, unless an appeal is taken to the proper court within thirty days. The court may not pass upon the validity of the decision of the Public Works Secretary collaterally. Furthermore, there was nothing in the plaintiff 's evidence to show that the resolution was not valid. It dismissed the complaint and counterclaim.
The plaintiff's motion for reconsideration of the decision was denied by the trial court. The plaintiff appealed to the Court of Appeals which certified the case to Us upon the legal question of whether the provisions of the Irrigation Act (Act No. 2152) or those of the Civil Code should apply to this case.
The plaintiff-appellant argues that while the trial court correctly held that the Secretary of Public Works may legally decide who between the parties is entitled to apply for water rights under the Irrigation Act, it erred in ruling that the Secretary has authority to hear and decide the plaintiff 's claim for damages for the defendant's violation of his (plaintiff's) right to continue to enjoy the easement of aqueduct or water through the defendant's land under Articles 642, 643, and 646 of the Civil Code, which provide:
Article 642. Any person who may wish to use upon his own estate any water of which he can dispose shall have the right to make it flow through the intervening estates, with the obligation to indemnify their owners, as well as the owners of the lower estates upon which the waters may filter or descend.
Article 643. One desiring to make use of the right granted inthe preceding article is obliged:
(1) To prove that he can dispose of the water and that it is sufficient for the use for which it is intended;
(2) To show that the proposed right of way is the most convenient and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner determined by the laws and regulations.
Article 646. For legal purposes, the easement of aqueduct shall be considered as continuous and apparent, even though the flow of the water may not be continuous, or its use depends upon the needs of the dominant estate, or upon a schedule of alternate days or hours. The existence of the irrigation canal on defendant's land for the passage of water from the Pampanga River to Honorata's land prior to and at the time of the sale of Honorata's land to the plaintiff was equivalent to a title for the vendee of the land to continue using it as provided in Article 624 of the Civil Code: Article 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 he easement may continue actively and passively, unless at the time, theownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common on by two or more persons (Civil Code) This provision was lifted from Article 122 of the Spanish Law of Waters which provided:
Article 122. Whenever a tract of irrigated land which previously received its waters from a single point is divided through inheritance, sale or by virtue of some other title, between two or more owners, the owners of the higher estates are under obligation to give free passage to the water as an easement of conduit for the irrigation of the lower estates, and without right to any compensation therefore unless otherwise stipulated in the deed of conveyance. (Art. 122, Spanish Law of Waters of August 3, 1866.) No enlightened concept of ownership can shut out the Idea of restrictions thereon, such as easements. Absolute and unlimited dominion is unthinkable, inasmuch as the proper enjoyment
of property requires mutual service and forbearance among adjoining estates (Amor vs. Florentino, 74 Phil. 403).
As indicated in the decision dated March 22, 1960 of the Bureau of Works "the principal issue involved in this case falls under the subject of servitude of waters which are governed by Article 648 of the new Civil Code and the suppletory laws mentioned in the cases of Lunod vs. Meneses 11 Phil. 128) and Osmena vs. Camara (C.A. 380 62773 begin_of_the_skype_highlighting 380 62773 end_of_the_skype_highlighting) which are the irrigation law and the Spanish Law of Waters of August 3, 1866, specifically Article 122 thereof.
The deed of sale in favor of Valisno included the "conveyance and transfer of the water rights and improvements" appurtenant to Honorata Adriano's property. By the terms of the Deed of Absolute Sale, the vendor Honorata Adriano Francisco sold, ceded, conveyed and transferred to Dr. Nicolas Valisno all "rights, title, interest and participations over the parcel of land abovedescribed, together with one Berkely Model 6 YRF Centrifugal Pump G" suction, 6" discharge 500-1500 begin_of_the_skype_highlighting 500-1500 end_of_the_skype_highlighting GPM, with Serial No. 5415812 and one (1) set of suction pipe and discharge of pipe with elbow, nipples, flanges and footvalves," and the water rights and such other improvements appertaining to the property subject of this sale. According to the appellant, the water right was the primary consideration for his purchase of Honorata's property, for without it the property would be unproductive.
Water rights, such as the right to use a drainage ditch for irrigation purposes, which are appurtenant to a parcel of land, pass with the conveyance of the land, although not specifically mentioned in the conveyance. The purchaser's easement of necessity in a water ditch running across the grantor's land cannot be defeated even if the water is supplied by a third person (Watson vs. French, 112 Me 371 19 C.J. 868-897). The fact that an easement by grant may also have qualified as an easement of necessity does detract from its permanency as property right, which survives the determination of the necessity (Benedicto vs. CA, 25 SCRA 145).
As an easement of waters in favor of the appellant has been established, he is entitled to enjoy it free from obstruction, disturbance or wrongful interference (19 CJ 984), such as the appellee's act of levelling the irrigation canal to deprive him of the use of water from the Pampanga River.
WHEREFORE, the appealed decision is set aside, and a new one is entered ordering the appellee to grant the appellant continued and unimpeded use of the irrigation ditch traversing his land in order to obtain water from the Pampanga River to irrigate appellant's land. Let the records of this case be remanded to the court a quo for the reception of evidence on the appellant's claim for damages.
SO ORDERED. Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.
Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-10619 February 28, 1958
LEOGARIO RONQUILLO, ET AL., plaintiffs-appellants, vs. JOSE ROCO, as Administrator of VICENTE, ROCO Y. DOMINGUEZ ET AL., defendants-appellees. Moises B. Cruz for appellants. Vicente Roco, Jr. for appellees. MONTEMAYOR, J.: Involving as it does only a question of law, the present appeal from the order of the Court of First Instance of Camarines Sur, dated March 6, 1955, dismissing the amended and supplemental complaint of plaintiffs on motion of defendants that it did not state a cause of action, was taken directly to this Court. The facts and the issue involved in the appeal are well and correctly stated in the appealed order, the pertinent portion of which we are reproducing and making our own: The amended and supplemental complaint alleged that the plaintiffs have been in the continuous and uninterrupted use of a road or passage way which traversed the land of the defendants and their predecessors in interest, in going to Igualdad Street and the market place of Naga City, from their residential land and back, for more than 20 years; that the defendants and the tenants of Vicente Roco, the predecessors in interest of the said defendants have long recognized and respected the private legal easement of road right of way of said plaintiffs; that on May 12, 1953, the defendants Jose Roco thru his co-defendants, Raymundo Martinez and their men with malice aforethought and with a view to obstructing the plaintiffs' private legal easement over the property of the late Vicente Roco, started constructing a chapel in the middle of the said right of way construction actually impeded, obstructed and disturbed the continuous exercise of the rights of the plaintiffs over said right of way; that on July 10, 1954 the new defendants Natividad Roco and Gregorio Miras, Jr. with the approval of the defendant, Jose Roco and with the help of their men and laborers, by means of force, intimidation, and threats, illegally and violently planted wooden posts, fenced with barbed wire and closed hermitically the road passage way and their right of way in question against their protests and opposition, thereby preventing them from going to or coming from their homes to Igualdad Street and the public market of the City of Naga.
It is very clear from the allegations of the plaintiffs in their amended and supplemental complaint, that they claim to have acquired the easement of right of way over the land of the defendants and the latter's predecessors in interest, Vicente Roco, thru prescription by their continuous and uninterrupted use of a narrow strip of land of the defendants as passage way or road in going to Igualdad Street and the public market of Naga City, from their residential land or houses, and return. The only question therefore to determine in this case, is whether an easement of right of way can be acquired thru prescription. The dismissal was based on the ground that an easement of right of way though it may be apparent is, nevertheless, discontinuous or intermittent and, therefore, cannot be acquired through prescription, but only by virtue of a title. Under old as well as the New Civil Code, easements may be continuous discontinuous (intermittent), apparent or non-apparent, discontinuous being those used at more or less long intervals and which depend upon acts of man (Articles 532 and 615 of the Old and New Civil Codes, respectively). Continuous and apparent easements are acquired either, by title or prescription, continuous non-apparent easements and discentinuous ones whether apparent or not, may be acquired only by virtue of a title (Articles 537 and 539, and 620 and 622 of the Old and New Civil Codes, respectively). Both Manresa and Sanchez Roman are of the opinion the easement of right of way is a discontinuous one: En cambio, las servidumbres discontinues se ejercitan por un hecho del hombre, y precisamente por eso son y tienen que ser discontinuas, porque es imposible fisicamente que su uso sea incesante. Asi, la servidumbre de paso es discontinua, porque no es posible que el hombre este pasando continuamente por el camino, vereda o senda de que se trate. (4 Manresa, Codigo Civil Espaol, 5th ed, p. 529). . . . "5 Por razon de los modos de disfrutar las servidumbres, en continuas y discontinuas (1). Las continuas son aquelles cuyo uso es o puede ser incesante, sin la intervencion de ningun hecho del hombre, como son las de luces y otras de la misma especie; y las discontinuas, las que se usan intervalos, mas o menos largos, y dependen de actos del hombre, como las de sen senda, carrera y otras de esta clase. (3 Sanchez Roman, Derecho Civil, p. 488). Under the provisions of the Civil Code, old and new, particularly the articles thereof aforecited, it would therefore appear that the easement of right of way may not be acquired through prescription. Even Article 1959 of the Old Civil Code providing for prescription of ownership and other real rights in real property, excludes therefrom the exception established by Article 539, referring to discontinuous easements, such as, easement of right of way. (Bargayo vs. Camumot, 40 Phil., 857, 867). In the case of Cuayong vs. Benedicto, 37 Phil., 781 where the point in issue was whether or not vested rights in a right of way can be acquired through user from time immemorial, this Court said:
It is evident, therefore, that no vested right by user from time immemorial had been acquired by plaintiffs at the time the Civil Code took effect. Under that Code (Article 539) ino discontinuous easement could be acquired by prescription in any event. However, in the case of Municipality of Dumangas is Bishop of Jaro, 34 Phil., 545, this same Tribunal held that the continued use by the public of a path over land adjoining the Catholic church in going to and from said church through its side door, has given the church the right to such use by prescription, and that because of said use by the public, an easement of right of way over said land has been acquired by prescription, not only by the church, but also by the public, which without objection or protest on the part of the owner of said land, had continually availed itself of the easement. The minority of which the writer of this opinion is a part, believes that the easement of right of way may now be acquired through prescription, at least since the introduction into this jurisdiction of the special law on prescription through the Old Code of Civil Procedure, Act No. 190. Said law, particularly, Section 41 thereof, makes no distinction as to the real rights which are subject to prescription, and there would appear to be no valid reason, at least to the writer of this opinion, why the continued use of a path or a road or right of way by the party, specially by the public, for ten years or more, not by mere tolerance of the owner of the land, but through adverse use of it, cannot give said party a vested right to such right of way through prescription. The uninterrupted and continuous enjoyment of a right of way necessary to constitute adverse possession does not require the use thereof every day for the statutory period, but simply the exercise of the right more or less frequently according to the nature of the use. (17 Am. Jur. 972) Even under the case of Cuaycong vs. Benedicto (supra), this Tribunal insinuated the rule that no discontinuous easement, like an easement of right of way, may, under Article 539 of the Old Civil Code, be acquired, might possibly have been changed by the provisions of the Code of Civil Procedure relative to prescription. . . . Assuming, without deciding, that this rule has been changed by the provisions of the present Code of Civil Procedure relating to prescription, and that since its enactment discontinuous easement of acquired by prescription, it is clear that this would not by avail plaintiffs. The Code of Civil Procedure went into effect on October 1, 1901. The term of prescription for the acquisition of right in real estate is fixed by the Code (section 41) at ten years. The evidence shows that in February, 1911, before the expiration of the term of ten years since the time the Code of Civil Procedure took effect, the defendants interrupted the use of the road by plaintiffs by constructing and maintaining a toll gate on, it collecting toll from persons making use of it with carts and continued to do so until they were enjoin by the granting of the preliminary injunction by the trial court in December 1912. . . (Cuayong vs. Benedicto, 37 Phil., 781, 796). Professor Tolentino in his Commentaries and Jurisprudence on the Civil Code, Vol. I, p. 340, would appear to be of the opinion that under, the provision of the Code of Civil Procedure
relative to prescription, even discontinuous easements, like the easement right of way, may be acquired through prescription: . . . "It is submitted that under Act No. 190, even discontinuous servitudes can be acquired by prescription, provided it can be shown that the servitude was actual, open, public, continuous, under a claim of title exclusive of any other right and adverse to all other claimants'." However, the opinion of the majority must prevail, and it is held that under the present law, particularly, the provisions of the Civil Code, old and new, unless and until the same is changed or clarified, the easement of right of way may not be acquired through prescription. In view of the foregoing, the order appealed from is hereby affirmed. No costs. Bengzon, Bautista Angelo, Labrador, Concepcion, Endencia, and Felix, JJ., concur. Padilla, J., concurs in the result.
Separate Opinions REYES, J.B.L., J., concurring: I would like to elaborate my reasons for concurring with the majority in declaring the easement of right of way not acquirable by prescription. The essence of this easement ("servidumbre de paso") lies in the power of the dominant owner to cross or traverse the servient tenement without being prevented or disturbed by its owner. As a servitude, it is a limitation on the servient owner's rights of ownership, because it restricts his right to exclude others from his property. But such limitation exists only when the dominant owner actually crosser, or passes over the servient estate; because when he does not, the servient owner's right of exclusion is perfect and undisturbed. Since the dominant owner can not be continually and uninterruptedly crossing the servient estate, but can do so only at intervals, the easement is necessarily of an intermittent or discontinuous nature. Because possession of a right consists in the enjoyment of that right (old Civil Code, Art. 430; Art. 423, new Civil Code) and to enjoy a right is to exercise it, it follows that the possession (enjoyment or exercise) of a right of way is intermittent and discontinuous. From this premise, it is inevitable to conclude, with Manresa and Sanchez Roman, that such easement can not be acquired by acquisitive prescription (adverse possession) because the latter requires that the possession be continuous or uninterrupted (old Civil Code, Art. 1941; new Civil Code, Art. 1118). The Code of Civil Procedure (Act 190) did not change the situation. Observe that its section 41, in conferring prescriptive title upon "ten years adverse possession" qualifies it by the succeeding
words "uninterruptedly continued for ten years which is the same condition of continuity that is exacted by the Civil Code. SEC. 41. Title to Land by Prescription. Ten years actual adverse possession by any person claiming to be the owner for that time of any land or interest in land, uninterruptedly continued for ten years by occupancy, descent, grants, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to the persons under disabilities the rights secured the next section. In order to constitute such title by prescription or adverse possession, the possession by the claimant or by the person under or through whom he claims must have been actual, open, public, continous, under a claim of title exclusive of any other right and adverse to all other claimants. But failure to occupy or cultivate land solely by reason of war shall not be deemed to constitute an interruption of possession of the claimant, and his title by prescription shall he complete, if in other regrets perfect, notwithstanding such failure to occupy or cultivate the land during the continuance of war. The case of Municipality of Dumangas vs. Bishop of Jaro, 34 Phil. 541, does not, if properly analyzed, constitute authority to hold that the easement of right of way is acquirable by prescription or adverse possession. The Court there said: The record shows that the church of the pueblo of Dumangas was constructed in or about the year 1987; that wall on the southeast side adjoins the building lot in question; and that since the construction of the church there has been a side door in this wall through which the worshippers attending divine service enter and leave, they having to pass over and cross the land in question. It is therefore to be presumed that the use of said side door also carries with it the use by faithful Catholics of the municipal land over which they have had to pass in order to gain access to said place of worship, and, as this use of the land has been continuous, it is evident that the Church has acquired a right to such use by prescription, in view of the time that has elapsed since the church was built and dedicated to religious worship, during which period the municipality has not prohibited the passage over the land by the persons who attend services customarily held in said church. The record does not disclose the date when the Government ceded to the Church the land on which the church building was afterwards erected, nor the date of the laying out of the adjacent square that is claimed by the municipality and on which the side door of the church, which is used as an entrance by the people who frequent this building, gives. There are good grounds for presuming that in apportioning lands at the time of the establishment of the pueblo of Dumangas and in designating the land adjacent to the church as a public square, this latter was impliedly encumbered with the easement of a right of way to allow the public to enter and leave the church a case provided for by article 567 of the Civil Code for the municipality has never erected any building or executed any work which would have obstructed the passage and access to the side door of the church, and the public has been enjoying the right of way over the land in question for an almost immemorable length of time. Therefore an easement of right of way over said land has been acquired by prescription, not only by the church, but also by the public
which, without objection or protest, has continually availed itself of the easement in question. (34 Phil., pp. 545-546). It will be seen that the ratio decidendi of that case lies in the application of Article 567 of the old Civil Code that provides as follows: ART. 567. When an estate acquired by purchase, exchange, or partition is enclosed by other estates of the vendor, exchanger, or co-owner, the latter shall be obliged to grant a right of way without indemnity, in the absence of an agreement to the contrary. Bearing in mind the provisions of the article quoted in relation to the wording of the decision in the Dumangas case, it can be seen that what the court had in mind is that when the Spanish Crown apportioned the land occupied by the Church of Dumangas, it impliedly burdened the neighboring public square (which was also Crown property at the time) with an easement of right of way to allow the public to enter and leave the church, because without such easement the grant in favor of ecclesiastical authorities would be irrisory: what would be the use of constructing a church if no one could enter it? Now, if there was an implied grant of the right of way by the Spanish Crown, it was clearly unnecessary to justify the existence of the easement through prescriptive acquisition. Why then does the decision repeatedly speak of prescription? Plainly, the word "prescription" was used in the decision not in the sense of adverse possession for ten or thirty years, but in the sense of "immemorial usage" that under the law anterior to the Civil Code of 1889, was one of the ways in which the servitude of right of way could be acquired.1 This view is confirmed by the fact that throughout the passages hereinabove quoted, the court's decision stresses that the people of Dumangas have been passing over the public square to go to church since the town was founded and the church was built, an "almost immemorable length of time." It would seem that the term "priscription" used in said case was merely a loose expression that is apt to mislead unless the court's reasoning is carefully analyzed. Since 1889, however, the Civil Code repealed the prior legislation; and thereafter the right of way could only be acquired by title and not by adverse possession (usucapio), saving those servitudes already acquired before the Code came into effect (Decisions, Supreme Court of Spain 27 Oct. 1900, 1st February 1912; 11 May 1927, and 7 January 1920). Paras, C.J. and Reyes A., J., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-66520 August 30, 1988 EDUARDO C. TAEDO, Petitioner, vs. HON. JUANITO A. BERNAD, Presiding Judge of the Regional Trial Court, 7th Judicial Region, Branch XXI, Cebu City; Spouses ROMEO
SIM and PACITA S. SIM; and Spouses ANTONIO CARDENAS and MAE LINDA CARDENAS, Respondents.
PADILLA, J.: This is a petition for review on certiorari of the Order issued by the respondent judge, Hon. Juanita A. Bernad on 5 December 1983, which dismissed the complaint for legal redemption filed by the petitioner in Civil Case No. CEB-994 of the Regional Trial Court of Cebu, and the Order of the same respondent judge, dated 20 January 1984, which denied petitioner's motion for reconsideration.
The facts, in brief, are as follows:
The private respondent Antonio Cardenas was the owner of two (2) contiguous parcels of land situated in Cebu City which he had inherited from Lourdes Cardenas and more particularly known as Lot 7501-A, with an area of 140 square meters and Lot 7501-B, with an area of 612 square meters. On Lot 7501-A is constructed an apartment building, while the improvements on Lot 7501-B consist of one four-door apartment of concrete and strong materials; one two-storey house of strong materials; a bodega of strong materials; and a septic tank for the common use of the occupants of Lots 7501-A and 7501-B. A small portion of the apartment building on Lot 7501-A also stands on Lot 7501-B.
On 5 February 1982, said Antonio Cardenas sold Lot 7501-A to herein petitioner Eduardo C. Taedo. 1
Antonio Cardenas, on that same day, also mortgaged Lot 7501-B to said Eduardo C. Taedo as a security for the payment of a loan in the amount of P10,000.00. 2
Antonio Cardenas further agreed that he would sell Lot 7501-B only to Eduardo Taedo in case he should decide to sell it, as the septic tank in Lot 7501-B services Lot 7501-A and the apartment building on Lot 7501-A has a part standing on Lot 7501-B. This was confirmed in a letter, dated 26 February 1982, wherein Antonio Cardenas asked Taedo not to deduct the mortgage loan of P10,000.00 from the purchase price of Lot 7501-A "because as we have previously agreed, I will sell to you Lot 7501-B." 3
Antonio Cardenas, however, sold Lot 7501-B to the herein respondent spouses Romeo and Pacita Sim. 4Upon learning of the sale, Eduardo Taedo offered to redeem the property from Romeo Sim. But the latter refused. Instead, Romeo Sim blocked the sewage pipe connecting the building of Eduardo Taedo built on Lot 7501-A, to the septic tank in Lot 7501-B. He also asked Taedo to remove that portion of his building enroaching on Lot 7501-B. As a result, Eduardo Taedo, invoking the provisions of Art. 1622 of the Civil Code, filed an action for legal redemption and damages, with a prayer for the issuance of a writ of preliminary injunction, before the Regional Trial Court of Cebu, docketed therein as Civil Case No. CEB-994, against
the spouses Romeo and Pacita Sim, Antonio Cardenas and his wife Mae Linda Cardenas, the Register of Deeds of Cebu City, and Banco Cebuano, Cebu City Development Bank. 5
Answering, the spouses Romeo and Pacita Sim claimed that they are the absolute owners of Lot 7501-B and that Eduardo Taedo has no right to redeem the land under Art. 1622 of the Civil Code as the land sought to be redeemed is much bigger than the land owned by Taedo. 6
Antonio Cardenas, upon the other hand, admitted that he had agreed to sell Lot 7501-B to Eduardo Taedo and claimed by way of cross-claim against the spouses Romeo and Pacita Sim that the Deed of Sale he had executed in favor of said spouses was only intended as an equitable mortgage, to secure the payment of amounts received by him from said spouses as petty loans . 7
virtual law library
chanrobles
In answer to the cross-claim, the spouses Romeo and Pacita Sim insisted that the sale executed by Antonio Cardenas of Lot 7501-B in their favor was an absolute one. 8
Thereafter, or on 14 October 1983, the spouses Romeo and Pacita Sim filed motions to dismiss the complaint and the cross-claim, for lack of cause of action. 9
Acting upon these motions and other incidental motions, the respondent judge issued the questioned order of 5 December 1983 dismissing the complaint and cross-claim. 10
Taedo filed a motion for reconsideration of the order, but his motion was denied on 20 January 1984. 11
Hence, the present recourse by petitioner Tanedo.
chanroblesvirtualawlibrary
The Court finds merit in the petition. The dismissal of the complaint on the ground of lack of cause of action, is precipitate. The settled rule where dismissal of an action is sought on the ground that the complaint does not state a cause of action is, that the insufficiency of the cause of action must appear on the face of the complaint. And the test of the sufficiency of the ultimate facts alleged in the complaint to constitute a cause of action, is whether or not, admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer of the complaint. For this purpose, the movant is deemed to admit hypothetically the truth of the facts thus averred. 12
In the instant case, it cannot be denied that petitioner Tanedo cannot redeem the entire Lot 7501B from the spouses Romeo and Pacita Sim pursuant to the provisions of Art. 1622 Romeo and Pacita Sim pursuant to the provisions of Art. 1622 of the Civil Code, since the lot sought to be redeemed, has an area of 612 square meters which is much bigger, area-wise, than the lot owned by petitioner Taedo. However, the petitioner seeks to purchase only that small portion of Lot 7501-B occupied by his apartment building, because the spouses Romeo and Pacita Sim had told him to remove that portion of his building which enroaches upon Lot 7501-B. Whether or not this is possible should have been determined at the pre-trial stage or trial on the merits.
Besides, the action of petitioner Taedo is also one for recovery of damages by reason of breach of promise by the respondent Antonio Cardenas to sell Lot 7501-B. Paragraphs 3 and 4 of the amended complaint read, as follows: 3. That by written agreement, plaintiff and defendant spouses Antonio Cardenas and Mae Linda Cardenas agreed that in the event they decide to sell the adjacent Lot No. 7501-B of the subdivision plan (LRC) Psd. 23638, a portion of Lot No. 7501 of the cadastral survey of Cebu, LRC (GLRC) Cad. Record No. 9465, situated in the City of Cebu, containing an area of SIX HUNDRED TWELVE (612) Square meters more or less which lot is adjacent to Lot No. 7501-A of the plaintiff and where part of the plaintiffs apartment is standing on, the same should be sold to the plaintiff, but far from compliance of the written agreement, defendant spouses Antonio Cardenas and Mae Linda Cardenas sureptiously [sic] sold the aforestated Lot No. -7501-B- to the defendant spouses, Romeo Sim and Pacita Sim on July 23, 1982 as per Deed of Sale notarized by Notary Public, Jorge S. Omega and entered in his Notarial Register as Doc. No. 462; Page No. -94- Book No. 11, Series of 1982;
4. That due to the sale by the defendant spouses Antonio Cardenas and Mae Linda Cardenas of the property in question to spouses Romeo Sim and Pacita Lim, plaintiff suffered moral damages in the form of mental anguish, sleepless nights, mental torture, for which he is entitled to a compensation in the amount to be established during the trial of the case and has incurred litigation expenses subject for reimbursentent and attorneys fee in the sum of P10,000.00 which should be chargeable to both defendant spouses; 13
and the plaintiff (herein petitioner) prayed, among others: "(c) That defendant spouses Romeo Sim and Pacita Sim and spouses Antonio Cardenas and Mae Linda Cardenas be ordered to pay plaintiff moral damages, litigation expenses and attorneys fees in the amount of P50,000.00." 14
law library
chanrobles virtual
That there was a written agreement, as alleged in the complaint, between the plaintiff Eduardo Taedo and the defendant Antonio Cardenas is admitted by the latter. In his answer, he alleged the following: ALLEGATIONS as to written agreement is ADMITTED, but, specifically denies that herein defendants SUREPTIOUSLY [sic] SOLD the lot in question to the other defendant Spouses Sim the truth is, that the herein defendants [sic] was required to execute the Deed of Sale described in this paragraph 3 as security for the personal loans and other forms of indebtedness incurred from the Spouses Sims but never as a conveyance to transfer ownership; 15
Considering this admission of defendant Cardenas, and that his promise to sell Lot 7501-B to Eduardo Taedo appears to be for a valuable consideration, a trial is necessary to determine, at the very least, the amount of damages suffered by the plaintiff Eduardo Tafiedo by reason of such breach of promise to sell, if indeed there is such a breach.
Moreover, the finding of the trial court that petitioner Taedo's right to continue to use the septic tank, erected on Lot 7501-B, ceased upon the subdivision of the land and its subsequent sale to different owners who do not have the same interest, 16 also appears to be contrary to law. Article
631 of the Civil Code enumerates the grounds for the extinguishment of an easement. Said article provides: Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the dominant and servient estates;
(2) By non-user for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place;
(3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number;
(4) By the expiration of the term or the fulfillment of the conditions, if the easement is temporary or conditional;
(5) By the renunciation of the owner of the dominant estate;
(6) By the redemption agreed upon between the owners of the dominant and servient estates. As can be seen from the above provisions, the alienation of the dominant and servient estates to different persons is not one of the grounds for the extinguishment of an easement. On the contrary, use of the easement is continued by operation of law. Article 624 of the Civil Code provides: Art. 624. The existence of an apparent sign of easement between two estates, established or maintained by the owner of both, shall be considered, should either of them be alienated, as a title in order that the easement may continue actively and passively, unless, at the time the ownership of the two estates is divided, the contrary should be provided in the title of conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed. This provision shall also apply in case of the division of a thing owned in common by two or more persons. In the instant case, no statement abolishing or extinguishing the easement of drainage was mentioned in the deed of sale of Lot 7501-A to Eduardo Taedo. Nor did Antonio Cardenas stop the use of the drain pipe and septic tank by the occupants of Lot 7501-A before he sold said lot to Eduardo Tafiedo. Hence, the use of the septic tank is continued by operation of law. Accordingly, the spouses Romeo and Pacita Sim the new owners of the servient estate (Lot 7501- B), cannot impair, in any manner whatsoever, the use of the servitude. 17
WHEREFORE, the Orders complained of are hereby REVERSED and SET ASIDE. The respondent judge or another one designated in his place is directed to proceed with the trial of this case on the merits. With costs against private respondents.
SO ORDERED. Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur. Republic of the Philippines SUPREME COURT Manila SECOND DIVISION
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 decision 1 dated May 30, 1986 of the Court of Appeals, 2 which modified the decision 3 rendered by the Regional Trial Court of Lapu-Lapu City in Cebu, is whether or not the private respondents had acquired an easement of right of way, in the form of a passageway, on the petitioner's property.
It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122 and 5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it had constructed a resort and hotel. The private respondents, on the other hand, are the owners of adjoining properties more particularly known as Lots Nos. 5123-A and 5123-C of the Opon Cadastre.
Before the petitioner began the construction of its beach hotel, the private respondents, in going to and from their respective properties and the provincial road, passed through a passageway which traversed the petitioner's property. In 1981, the petitioner closed the aforementioned passageway when it began the construction of its hotel, but nonetheless opened another route across its property through which the private respondents, as in the past, were allowed to pass. (Later, or sometime in August, 1982, when it undertook the construction of the second phase of its beach hotel, the petitioner fenced its property thus closing even the alternative passageway and preventing the private respondents from traversing any part of it.)
As a direct consequence of these closures, an action for injunction with damages was filed against the petitioner by the private respondents on September 2, 1982 before the then Court of First Instance of Cebu. 4In 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 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. 9The 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. 10That notwithstanding, the appellate court went on to rule that ". . . in the interest of justice and in the exercise by this Court of its equity jurisdiction, there is no reason for Us in not treating the easement here sought by appellees Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is not dependent upon the claims of the parties but a compulsory one that is legally demandable by the owner of the dominant estate from the owner of the servient estate." 11Thus the appellate court: (1) granted the private respondents the right to an easement of way on the petitioner's property using the passageway in question, unless the petitioner should provide another passageway equally accessible and convenient as the one it closed; (2) remanded the case to the trial court for the determination of the just and proper indemnity to be paid to the petitioner by the private respondents for the said easement; and (3) set aside the trial court's award of actual damages and attorney's fees. 12
On petitioner's motion for partial reconsideration, the respondent court issued on October 27, 1987 a resolution 13 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 discontinuous 15 and as such can not be acquired by prescription. 16 Insofar therefore as the appellate court adhered to the foregoing precepts, it stood correct. Unfortunately, after making the correct pronouncement, the respondent Appellate Court did not order the reversal of the trial court's decision and the dismissal of the complaint after holding that no easement had been validly constituted over the petitioner's property. Instead, the Appellate Court went on to commit a reversible error by considering the passageway in issue as a compulsory easement which the private respondents, as owners of the "dominant" estate, may demand from the petitioner the latter being the owner of the "servient" estate.
It is provided under Articles 649 and 650 of the New Civil Code that: Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity.
Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate without a permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts.
Art. 650. The easement of right of way shall be established at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. Based on the foregoing, the owner of the dominant estate may validly claim a compulsory right of way only after he has established the existence of four requisites, to wit: (1) the (dominant) estate is surrounded by other immovables and is without adequate outlet to a public highway; (2) after payment of the proper indemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of way claimed is at a point least prejudicial to the servient estate. Additionally, the burden of proving the existence of the foregoing pre-requisites lies on the owner of the dominant estate. 17
Here, there is absent any showing that the private respondents had established the existence of the four requisites mandated by law. For one, they failed to prove that there is no adequate outlet from their respective properties to a public highway. On the contrary, as alleged by the petitioner
in its answer to the complaint, and confirmed by the appellate court, "there is another outlet for the plaintiffs (private respondents) to the main road." 18 Thus, the respondent Court of Appeals likewise admitted that "legally the old road could be closed." 19Yet, it ordered the re- opening of the old passageway on the ground that "the existing outlet (the other outlet) is inconvenient to the plaintiff." 20On this score, it is apparent that the Court of Appeals lost sight of the fact that the convenience of the dominant estate has never been the gauge for the grant of compulsory right of way. 21 To be sure, the true standard for the grant of the legal right is "adequacy." Hence, when there is already an existing adequate outlet from the dominant estate to a public highway, even if the said outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely unjustified. For to justify the imposition of an easement or right of way, "there must be a real, not a fictitious or artificial necessity for it." 22
Further, the private respondents failed to indicate in their complaint or even to manifest during the trial of the case that they were willing to indemnify fully the petitioner for the right of way to be established over its property. Neither have the private respondents been able to show that the isolation of their property was not due to their personal or their predecessors-in-interest's own acts. Finally, the private respondents failed to allege, much more introduce any evidence, that the passageway they seek to be re-opened is at a point least prejudicial to the petitioner. Considering that the petitioner operates a hotel and beach resort in its property, it must undeniably maintain a strict standard of security within its premises. Otherwise, the convenience, privacy, and safety of its clients and patrons would be compromised. That indubitably will doom the petitioner's business. It is therefore of great importance that the claimed light of way over the petitioner's property be located at a point least prejudicial to its business.
Hence, the Private respondents' properties can not be said to be isolated, for which a compulsory easement is demandable. Insofar therefore as the Appellate Court declared the case to be proper as a controversy for a compulsory right of way, this Court is constrained to hold that it was in error.
Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via of the Romans. 23They are demanded by necessity, that is, to enable owners of isolated estates to make full use of their properties, which lack of access to public roads has denied them. 24Under 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." 29Yet, each case must be weighed according to its individual merits, and judged according to the sound discretion of the court. "The court," says Tolentino, "is not bound to establish what is the shortest; a longer way may be established to avoid injury to the servient tenement, such as when there are constuctions or walls which can be avoided by a roundabout way, or to secure the interest of the dominant owner, such as when the shortest distance would place the way on a dangerous decline." 30
It is based on these settled principles that we have resolved this case.
WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987, of the respondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby DISMISSED. Costs against the private respondents.
SO ORDERED. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Cases Prop Easement Full

Caricato da

Informazioni sul documento

Descrizione originale:

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Cases Prop Easement Full

Caricato da

Copyright:

Formati disponibili

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No.

chanrobles virtual law library

SO ORDERED. Narvasa, Cruz, Gancayco and Medialdea, JJ., concur.

The facts, in brief, are as follows:

chanrobles virtual law library

Hence, the present recourse by petitioner Tanedo.

chanrobles virtual law library

chanrobles virtual law library

(5) By the renunciation of the owner of the dominant estate;

chanrobles virtual law library

The petition is meritorious.

chanroblesvirtualawlibrary chanrobles virtual law library

It is based on these settled principles that we have resolved this case.

chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Potrebbero piacerti anche