VIII. Easements upon the matters contained in said complaints.
The committee reported that the
6. Termination/ Abatement (Art. 631 (2))
[No. 7012. March 26, 1913.]
THE ILOILO ICE AND COLD STORAGE COMPANY, plaintiff and appellee, vs. THE
MUNICIPAL COUNCIL OF ILOILO ET AL., defendants and appellants.
1.NUISANCES,—Nuisances may be divided into two classes: Nuisances per se and
nuisances per accidens. The former are recognized as nuisances under any and all
circumstances. The latter are such only because of the special circumstances and conditions
surrounding them.
2.MUNICIPAL CORPORATIONS; ABATEMENT OF NUISANCES IN EMERGENCIES.—A
nuisance which affects the immediate safety of persons or property, or which constitutes an
obstruction to the streets and highways under circumstances presenting an emergency, may be
summarily abated under the undefined law of necessity. But, in any case, the declaration of the
municipal council that the thing or act is a nuisance is not conclusive. The owner of the alleged
nuisance has the right to test the validity of the action of the council in a court of law.
3.ID.; ABATEMENT OF NUISANCES IN OTHER CASES.—If no compelling necessity requires
the summary abatement of a nuisance, the municipal authorities, under their power to declare
and abate nuisances, do not have the right to compel the abatement of a particular thing or act
as a nuisance without reasonable notice to the person alleged to be maintaining or doing the
same of the time and place of hearing before a tribunal authorized to decide whether such a
thing or act does in law constitute a nuisance.
4.ID.; COST OF ABATING A NUISANCE.—A city cannot burden the property of a citizen with
the cost of abating a nuisance per accidens without a judicial hearing and judgment as to its
existence.
5.ID.; ID.; INJUNCTION.—Injunction lies to restrain a city from proceeding with the abatement of
a nuisance per accidens before it has been judicially declared to be such.
6.EXPRESS AND IMPLIED POWER TO ABATE NUISANCES—If the charter or license does
not expressly subject the business or industry to the exercise of the police power of 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. (Freund on Police Power, pars.
361 et seq. and pars, 513 et seq.)
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
complaints were well founded. The defendant council 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.* * * * * * *
''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
"2.That the answer is vague and ambiguous and contains arguments and
conclusions of law 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 paragraphs 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 def fendant, 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 (/) of the Municipal Code, specifically
empowered "to declare and abate nuisances." A nuisance is, according to
Blackstone, "Any thing that worketh hurt, inconvenience, or damage." (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
The leading case upon this point is Yates vs. Milwaukee, (10 Wall., 497; 19 L. ed.,
otherwise harmless cause of the nuisance. For this reason, it will readily be seen that
984). The following quotation from this case has been cited or quoted with approval in
whether a particular thing is a nuisance is generally a question of fact, to be
a great number of cases. (See Notes to this case in 19 L. ed., Notes, page 356.)
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 is an authority to find facts, to
estimate their force, and to apply rules of law to the case thus made. This is a
judicial function, and it is a function applicable to a numerous class of important
In Cole vs. Kegler (64 Ia., 59, 61) the court said:
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 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 he, 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 a 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 it 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."
"But the mere declaration by the city council of Milwaukee that a certain 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."
 "We do not think the general assembly intended to confer on cities and towns the
power to. 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 Albany, 11 Wend., 539.)
"Nuisances 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 ground 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: 'lf 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 a nuisance.' "
In Grossman vs. City of Oakland (30 Ore., 478, 483) the court said:
"In our opinion this ordinance cannot be sustained as a legitimate exercise of
municipal power. The charter 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, 123 111., 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 Island R. R. Co. vs. City of Joliet, 79 111., 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 Denver 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 have 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
marshal 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 resolves 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."
In C. R. I. & P. R. Co. vs. City of Joliet (79 111., 25, 44) the court said:
"As to the ordinance of the common council of the city of Joliet, 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 States 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 slaughterhouses 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 a 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 lowa, 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 nuisances, or within the meaning of
which such ditch is comprehended.
* * * * * * *
"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 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 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 f 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 was 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."
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 be 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 issue 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. (Freund, 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.

____________
 No. L-24245. April 11, 1972.
LEONOR FARRALES, assisted by her husband, EMILIO FARRALES, plaintiffs-
appellants, vs. THE CITY MAYOR OP BAGUIO,THE CHIEF OF POLICE,THE
MARKET SUPERIN-TENDENT AND THE CITY TREASURER, defendants-appel-
lees.
Nuisance; Erection of temporary stall inside premises of market without prior permit from
city official; Abatement through judicial proceedings.—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.
Same; Same; Abatement without judicial proceedings; Damages; Liability of public official
therefor.—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.
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.
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 v. 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 Plaintiff 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 plaintiffs 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 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 dam- ages 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.

Notes.—Private structures in public places nuisances per se. Houses constructed without
governmental authority on public streets obstruct at all times the free use by the public of said
streets and, accordingly, constitute nuisances per se, aside from public nuisances. Such being
the case, the summary removal thereof without judicial process may be authorized by the statute
or municipal ordinance despite the due-process clause. (Quinto vs. Lacson, 58 O.G. 5092.)
 G.R. No. 112331. May 29, 1996.
ANASTACIA QUIMEN, petitioner, vs. COURT OF APPEALS and YOLANDA Q.
OLIVEROS, respondents.
Easements; Right of Way; Words and Phrases; “Easements” and “Right of Way,”
Defined.—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 allow somebody else to
do or something to be done on his property, for the benefit of another person or tenement. 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 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.
Same; Same; Conditions sine qua non for a valid grant of an easement of right of way.—
The conditions sine qua 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.
Same; Same; 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 but if these two circumstances do not concur in a single tenement,
the way which will cause the least damage should be used, even if it will not be the shortest—
the criterion of least prejudice to the servient estate must prevail over the criterion of shortest
distance.—Article 650 of the New Civil Code explicitly states that the easement of right of way
shall be established at the point least prejudicial to the servient estate and, insofar as consistent
with this rule, where the distance from the dominant estate to a public highway may be the
shortest. The criterion of least prejudice to the servient estate must prevail over the criterion
of shortest distance although this is a matter of judicial appreciation. While shortest
distance may ordinarily imply least prejudice, it is not always so as when there are permanent
structures obstructing the shortest distance; while on the other hand, the longest distance may
be free of obstructions and the easiest or most convenient to pass through. In other words,
where the easement may be established on any of several tenements surrounding the dominant
estate, the one where the way is shortest and will cause the least damage should be chosen.
However, as elsewhere stated, if these two (2) circumstances do not concur in a single
tenement, the way which will cause the least damage should be used, even if it will not be the
shortest. This is the test.
Same; Same; 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.—In applying
Art. 650 of the New Civil Code, respondent Court of Appeals declared that the proposed right of
way of Yolanda, which is one (1) meter wide and five (5) meters long at the extreme right of
petitioner’s property, will cause the least prejudice and/or damage as compared to the
suggested passage through the property of Yolanda’s father which would mean destroying
the sari sari store made of strong materials. Absent any showing that these findings and
conclusion are devoid of factual support in the records, or are so glaringly erroneous, this Court
accepts and adopts them. As between a right of way that would demolish a store of strong
materials to provide egress to a public highway, and another right of way which although longer
will only require an avocado tree to be cut down, the second alternative should be preferred.
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. 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. 1448-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.

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 (9) meters long. Although the pathway
leads to the municipal road it is not adequate for ingress and egress. The municipal
road cannot be reached with facility because the store itself obstructs the path so that
one has to pass through the back entrance and the facade of the store to reach the
road.
On 29 December 1987 Yolanda filed an action with the proper court praying for a
right of way through Anastacia’s property. An ocular inspection upon instruction of the
presiding judge was conducted by the branch clerk of court. The report was that the
proposed right of way was at the extreme right of Anastacia’s property facing the
public highway, starting from the back of Sotero’s sari sari store and extending inward
by one (1) meter to her property and turning left for about five (5) meters to avoid the
store of Sotero in order to reach the municipal road3 and the way was unobstructed
except for an avocado tree standing in the middle.
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.
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. 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.
But we find no cogent reason to disturb the ruling of respondent appellate court
granting a right of way to private respondent through petitioner’s property. In fact, as
between petitioner Anastacia and respondent Yolanda their agreement has already
been rendered moot insofar as it concerns the determination of the principal issue
herein presented. The voluntary easement in favor of private respondent, which
petitioner now denies but which the court is inclined to believe, has in fact become a
legal easement or an easement by necessity constituted by law.
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 allow
somebody else to do or something to be done on his property, for the benefit of
another person or tenement. 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 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.
The conditions sine qua 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.
A cursory examination of the complaint of respondent Yolanda for a right of way
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 x x x x
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 x x x x
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. 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.”
Petitioner finally insists that respondent court erroneously concluded that the right
of way proposed by private respondent is the least onerous to the parties. We cannot
agree. Article 650 of the New Civil Code explicitly states that the easement of right of
way shall be established at the point least prejudicial to the servient estate and,
insofar as consistent with this rule, where the distance from the dominant estate to a
public highway may be the shortest. The criterion of least prejudice to the servient
estate must prevail over the criterion of shortest distance although this is a matter of
judicial appreciation. While shortest distance may ordinarily imply least prejudice, it is
not always so as when there are permanent structures obstructing the shortest
distance; while on the other hand, the longest distance may be free of obstructions
and the easiest or most convenient to pass through. In other words, where the
easement may be established on any of several tenements surrounding the dominant
estate, the one where the way is shortest and will cause the least damage should be
chosen. However, as elsewhere stated, if these two (2) circumstances do not concur
in a single tenement, the way which will cause the least damage should be used,
even if it will not be the shortest. 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).
xxxx
Q. Now, you will agree with me x x x x 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.
xxxx
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 x x x x 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.
The trial court found that Yolanda’s property was situated at the back of her father’s
property and held that there existed an available space of about nineteen (19) meters
long which could conveniently serve as a right of way between the boundary line and
the house of Yolanda’s father; that the vacant space ended at the left back of Sotero’s
store which was made of strong materials; that this explained why Yolanda requested
a detour to the lot of Anastacia and cut an opening of one (1) meter wide and five (5)
meters long to serve as her right of way to the public highway. But notwithstanding its
factual observations, the trial court concluded, although erroneously, that Yolanda
was not entitled to a right of way on petitioner’s property since a detour through it
would not make the line straight and would not be the route shortest to the public
highway.
In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared
that the proposed right of way of Yolanda, which is one (1) meter wide and five (5)
meters long at the extreme right of petitioner’s property, will cause the least prejudice
and/or damage as compared to the suggested passage through the property of
Yolanda’s father which would mean destroying the sari sari store made of strong
materials. Absent any showing that these findings and conclusion are devoid of
factual support in the records, or are so glaringly erroneous, this Court accepts and
adopts them. As between a right of way that would demolish a store of strong
materials to provide egress to a public highway, and another right of way which
although longer will only require an avocado tree to be cut down, the second
alternative should be preferred. After all, it is not the main function of this Court to
analyze or weigh the evidence presented all over again where the petition would
necessarily invite calibration of the whole evidence considering primarily the credibility
of witnesses, existence and relevancy of specific surrounding circumstances, their
relation to each other, and the probabilities of the situation. 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.

Notes.—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. (Costabella Corporation vs. Court of
Appeals, 193 SCRA 333 [1991])

The use of a footpath or road may be apparent but it is not a continuous easement because
its use is at intervals and depends upon the acts of man. A right of way cannot be acquired by
prescription. (Abellana, Sr. vs. Court of Appeals, 208 SCRA 316 [1992])

An action to terminate the easement may be brought if there be subsequent changes in the
condition of the estates involved. (Sunflower Umbrella Manufacturing Co., Inc. vs. De Leon, 237
SCRA 153 [1994])

An owner does not lose ownership of his lot by imposing on it a right of way in favor of
another lot belonging to him. (Heirs of George Bofill vs. Court of Appeals, 237 SCRA 451 [1994])

——o0o——
 7. Legal Easements
a. In favor of adjacent properties
[No. 7386. March 30, 1912.]
THE ROMAN CATHOLIC ARCHBISHOP OF MANILA, petitioner and
appellee, vs. PEDRO P. ROXAS, opponent and appellant.
1.REALTY; EASEMENTS; RIGHT OF WAY.—Although a road leading through an estate has
been used by the tenants of another estate, by people attending a house of public worship, and
by the public generally for a great number of years, no easement is thereby created when the
facts show that such use has been merely for convenience. To hold otherwise would destroy all
neighborhood accommodations in the way of travel, as no one would incur the danger of
encumbering his estate with such a burden for the mere accommodation of his neighbors.
2.ID.; ID. ; ID.; PRESCRIPTION.—To establish the easement of right of way by prescription in
those cases where the use is for convenience merely, the presumption of permissive use or
license must be overcome.
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 road, 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 is 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 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 f or 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, and 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 art 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.
Property; Easements; Easement of Right of Way; An easement of right of way is
discontinuous and as such cannot be acquired by prescription.—It is already well-established
that an easement of right of way, as is involved here, is discontinuous and as such can not be
acquired by prescription. 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.
Same; Same; Same; The burden of proving the existence of the pre-requisites to validly
claim a compulsory right of way lies on the owner of the dominant estate.—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 prerequisites lies on the owner of the dominant estate.
Same; Same; Same; Convenience of the dominant estate is not a gauge for the grant of
compulsory right of way.—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.”
Thus, the respondent Court of Appeals likewise admitted that “legally the old road could be
closed.” 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.” 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, 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.”
Same; Same; Same; 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.—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 prejudical 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.” Yet, each case must be weighed according to its individual
merits, and judged according to the sound discretion of the court. “The court,” says Tolentino, “is
not bound to establish what is the shortest; a longer way may be established to avoid injury to
the servient tenement, such as when there are constructions 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.”
SARMIENTO, J.:
The principal issue raised in this petition for review on certiorari of the decision dated
May 30, 1986 of the Court of Appeals, which modified the decision3 rendered by the
Regional Trial Court of Lapu-Lapu City in Cebu, is whether or not the private
respondents had acquired an easement of right of way, in the form of a passageway,
on the petitioner’s property.
It is admitted that the petitioner owns the real estate properties designated as
Lots Nos. 5122 and 5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago,
Lapu-Lapu City, on which it had constructed a resort and hotel. The private
respondents, on the other hand, are the owners of adjoining properties more
particularly known as Lots Nos. 5123-A and 5123-C of the Opon Cadastre.
Before the petitioner began the construction of its beach hotel, the private
respondents, in going to and from their respective properties and the provincial road,
passed through a passageway which traversed the petitioner’s property. In 1981, the
petitioner closed the aforementioned passageway when it began the construction of
its hotel, but nonetheless opened another route across its property through which the
private respondents, as in the past, were allowed to pass. (Later, or sometime in
August, 1982, when it undertook the construction of the second phase of its beach
hotel, the petitioner fenced its property thus closing even the alternative passageway
and preventing the private respondents from traversing any part of it.)
As a direct consequence of these closures, an action for injunction with damages
was filed against the petitioner by the private respondents on September 2, 1982
before the then Court of First Instance of Cebu.4 In their complaint, the private
respondents assailed the petitioner’s closure of the original passageway which they
(private respondents) claimed to be an “ancient road right of way” that had been
existing before World War II and since then had been used by them, the community,
and the general public, either as pedestrians or by means of vehicles, in going to and
coming from Lapu-Lapu City and other parts of the country. The private respondents
averred that by closing the alleged road right of way in question, the petitioner had
deprived them access to their properties and caused them damages.
In the same complainant, the private respondents likewise alleged that the
petitioner had constructed a dike on the beach fronting the latter’s property without
the necessary permit, obstructing the passage of the residents and local fishermen, chooses to provide another road, until such road is made available and
and trapping debris and flotsam on the beach. They also claimed that the debris and conveniently passable to the plaintiffs and the general public; and
flotsam that had accumulated prevented them from using their properties for the 3.To pay the sum of FIFTEEN THOUSAND PESOS (P15,000.00) attorney’s fees,
and to pay the costs.
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
Both parties elevated the trial court’s decision to the Court of Appeals, with the
property as well as the destruction of the dike.
petitioner questioning the alleged “vested right” of the private respondents over the
subject passageway, and the private respondents assailing the dismissal of their
In its answer, the petitioner denied the existence of an ancient road through its
complaint insofar as their prayer for the demolition of the petitioner’s “dike” is
property and counter-averred, among others, that it and its predecessors-in-interest
concerned.
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
In its decision, the respondent Appellate Court held as without basis the trial court’s
act of neighborliness. It justified the walling in of its property in view of the need to
finding that the private respondents had acquired a vested right over the passageway
insure the safety and security of its hotel and beach resort, and for the protection of
in question by virtue of prescription. The appellate court pointed out that an easement
the privacy and convenience of its hotel patrons and guests. At any rate, the
of right of way is a discontinuous one which, under Article 622 of the New Civil Code,
petitioner alleged, the private respondents were not entirely dependent on the subject
may only be acquired by virtue of a title and not by prescription. That notwithstanding,
passageway as they (private respondents) had another existing and adequate access
the appellate court went on to rule that “x x x in the interest of justice and in the
to the public road through other properties. With respect to the dike it allegedly
exercise by this Court of its equity jurisdiction, there is no reason for Us in not treating
constructed, the petitioner stated that what it built was a breakwater on the foreshore
the easement here sought by appellees Katipunan Lumber Co., Inc. and Perfecta
land fronting its property and not a dike as claimed by the private respondents.
Guangco as one that is not dependent upon the claims of the parties but a
Moreover, contrary to the private respondents’ accusation, the said construction had
compulsory one that is legally demandable by the owner of the dominant estate from
benefitted the community especially the fishermen who used the same as mooring for
the owner of the servient estate.” Thus the appellate court: (1) granted the private
their boats during low tide. The quantity of flotsam and debris which had formed on
respondents the right to an easement of way on the petitioner’s property using the
the private respondents’ beach front on the other hand were but the natural and
passageway in question, unless the petitioner should provide another passageway
unavoidable accumulations on beaches by the action of the tides and movement of
equally accessible and convenient as the one it closed; (2) remanded the case to the
the waves of the sea. The petitioner’s answer then assailed the private respondents’
trial court for the determination of the just and proper indemnity to be paid to the
complaint for its failure to implead as defendants the owners of the other properties
petitioner by the private respondents for the said easement; and (3) set aside the trial
supposedly traversed by the alleged ancient road right way, indispensable parties
court’s award of actual damages and attorney’s fees.
without whom no final adjudication of the controversy could be rendered.

On petitioner’s motion for partial reconsideration, the respondent court issued on

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, rerpesenting 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
October 27, 1987 a resolution denying the said motion. The Appellate Court however
in denying the petitioner’s motion for reconsideration stated that:
x x x 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.
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 and as such can not be acquired by prescription. 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.
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.” Thus, the respondent Court of Appeals likewise
admitted that “legally the old road could be closed.” 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.” 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. 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.”
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 right 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. 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. 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. x x x 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. x x x 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.”

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. Thus, as Manresa had pointed out, if the passageway
consists of an “inaccessible slope or precipice,” 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.

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 prejudical 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.” Yet, each case must be weighed according to its individual merits, and
judged according to the sound discretion of the court. “The court,” says Tolentino, “is
not bound to establish what is the shortest; a longer way may be established to avoid
injury to the servient tenement, such as when there are constuctions or walls which
can be avoided by a roundabout way, or to secure the interest of the dominant owner,
such as when the shortest distance would place the way on a dangerous decline.”

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' comlaint is hereby DISMISSED. Cost againts the private respondents.
SO ORDERED.

Note.—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. The partition agreement at bar
merely confirmed that existing right of way. (Jariol vs. Court of Appeals, 117 SCRA 913.)

——o0o——
 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.
Property; Easements; Right of Way; 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.—
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. Manuel
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 accommodate his jeepney since that is a reasonable and necessary aspect of the
plant nursery business.
Same; Same; Same; Since the easement to be established in favor of petitioner is of a
continuous and permanent nature the indemnity shall consist of the value of the land occupied
and the amount of the damage caused to the servient estate.—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. But unless and until that
option is considered, the law decrees that petitioner must indemnify the owners of the servient
estate including Mamerto Magsino from whose adjoining lot 1/2 meter was taken to constitute
the original path several years ago. Since the easement to be established in favor of petitioner is
of a continuous and permanent nature, the indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the servient estate pursuant to Article 649 of
the Civil Code.
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.
It was also about that time that petitioner started his plant nursery business on his
land where he also had his abode. He would use said pathway as passage to the
highway for his family and for his customers.
Petitioner’s plant nursery business through sheer hard work flourished and with
that, it became more and more difficult for petitioner to haul the plants and garden soil
to and from the nursery and the highway with the use of pushcarts. In January, 1984,
petitioner was able to buy an owner-type jeep which he could use for transporting his
plants. However, that jeep could not pass through the roadpath and so he
approached the servient estate owners (Aniceta Vda. de Sagun and Elena Romero
Vda. de Sagun) and requested that they sell to him one and one-half (1 1/2) meters of
their property to be added to the existing pathway so as to allow passage for his
jeepney. To his utter consternation, his request was turned down by the two widows
and further attempts at negotiation proved futile.
Petitioner then instituted an action before the Regional Trial Court of Batangas,
Branch 6 (Tanauan) to seek the issuance of a writ of easement of a right of way over
an additional width of at least two (2) meters over the De Saguns’ 405-square-meter
parcel of land.
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 (plaintiff’s) 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.”
On appeal, the Court of Appeals affirmed the decision of the trial court on January 28,
1987 and rejected petitioner’s claim for an additional easement.
In sustaining the trial court, the Court of Appeals opined that the necessity
interposed by petitioner was not compelling enough to justify interference with the
property rights of private respondents. The Appellate Court took into consideration the
presence of a dried river bed only eighty (80) meters away from the dominant estate
and conjectured that petitioner might have actually driven his jeep through the river
bed in order to get to the highway, and that the only reason why he wanted a wider
easement through the De Sagun’s estate was that it was more convenient for his
business and family needs.
After evaluating the evidence presented in the case, the Court finds that petitioner
has sufficiently established his claim for an additional easement of right of way,
contrary to the conclusions of the courts a quo.
While there is a dried river bed less than 100 meters from the dominant tenement,
that access is grossly inadequate. Generally, the right of way may be demanded: (1)
when there is absolutely no access to a public highway, and (2) when, even if there is
one, it is difficult or dangerous to use or is grossly insufficient. In the present case, the
river bed route is traversed by a semi-concrete bridge and there is no ingress nor
egress from the highway. For the jeep to reach the level of the highway, it must
literally jump four (4) to five (5) meters up. Moreover, during the rainy season, the
river bed is impassable due to the floods. Thus, it can only be used at certain times of
the year. With the inherent disadvantages of the river bed which make passage
difficult, if not impossible, it is if there were no outlet at all.
Where a private property has no access to a public road, it has the right of
easement over adjacent servient estates as a matter of law.
With the non-availability of the dried river bed as an alternative route to the
highway, we transfer our attention to the existing pathway which straddles the
adjoining properties of the De Sagun heirs and Mamerto Magsino.
The courts below have taken against petitioner his candid admission in open
court that he needed a wider pathway for the convenience of his business and family.
(TSN, August 2, 1985, pp. 24-26). We cannot begrudge petitioner for wanting that
which is convenient. But certainly that should not detract from the more pressing
consideration that there is a real and compelling need for such servitude in his favor.
Article 651 of the Civil Code provides that “(t)he width of the easement of right of
way shall be that which is sufficient for the needs of the dominant estate, and may
accordingly be changed from time to time.” This is taken to mean that under the law, it
is the needs of the dominant property which ultimately determine the width of the
passage. And these needs may vary from time to time. When petitioner started out as
a plant nursery operator, he and his family could easily make do with a few pushcarts
to tow the plants to the national highway. But the business grew and with it the need
for the use of modern means of conveyance or transport. Manual hauling of plants
and garden soil and use of pushcarts have become extremely cumbersome and
physically taxing. To force petitioner to leave his jeepney in the highway, exposed to
the elements and to the risk of theft simply because it could not pass through the
improvised pathway, is sheer pigheadedness on the part of the servient estate and
can only be counter-productive for all the people concerned. Petitioner should not be
denied a passageway wide enough to accomodate his jeepney since that is a
reasonable and necessary aspect of the plant nursery business.
We are well aware that an additional one and one-half (1 1/2) meters in the width
of the pathway will reduce the servient estate to only about 342.5 square meters. But
petitioner has expressed willingness to exchange an equivalent portion of his land to
compensate private respondents for their loss. Perhaps, it would be well for
respondents to take the offer of petitioner seriously.5 But unless and until that option
is considered, the law decrees that petitioner must indemnify the owners of the
servient estate including Mamerto Magsino from whose adjoining lot 1/2 meter was
taken to constitute the original path several years ago. Since the easement to be
established in favor of petitioner is of a continuous and permanent nature, the
indemnity shall consist of the value of the land occupied and the amount of the
damage caused to the servient estate pursuant to Article 649 of the Civil Code which
states in part:
“Art. 649. The owner, or any person who by virtue of a real right may cultivate or
use any immovable, which is surrounded by other immovables pertaining to other
persons and without adequate outlet to a public highway, is entitled to demand a
right of way through the neighboring estates, after payment of the proper
indemnity.
“Should this easement be established in such a manner that its use may be
continuous for all the needs of the dominant estate, establishing a permanent
 passage, the indemnity shall consist of the value of the land occupied and the
amount of the damage caused to the servient estate.
“x x x xxx x x x.”

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.

Note.—Where a private property has no access to public road, it has the right of easement
over adjacent servient estates as a matter of law. The partition agreement at bar merely
confirmed that existing right of way. (Jairol vs. Court of Appeals, 117 SCRA 913.)

——o0o——
 [No. L-14652. June 30, 1960]
JUAN GARGANTOS, petitioner, vs. TAN YANON and THE COURT OF APPEALS,
respondents.
EASEMENT OF LIGHT AND VIEW; TWO ADJOINING ESTATES FORMERLY
OWNED BY ONE PERSON; WHEN EXISTENCE OF DOORS AND WINDOWS IS
EQUIVALENT TO A TITLE.—Where two adjoining estates were formerly owned by just one
person who introduced improvements on both such that the wall of the house constructed on
the first estate extends to the wall of the camarin on the second estate; and at the time of the
sale of the first estate, there existed on the aforementioned wall of the house, doors and
windows which serve as passages for light and view, there being no provision in the deed of
sale that the easement of light and view will not be established, the case is covered by Article
624, New Civil Code, 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 estate is divided, the contrary is stated in the deed of alienation of
either of them, or the sign is made to disappear before the instrument is executed. The
existence of the doors and windows on the aforesaid wall of the house is equivalent to a title,
for the visible and permanent sign of an easement is the title that characterizes its existence.
But 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 613, N.C.C.).
GUTIÉRREZ 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 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.).

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.

________________
 7. Legal Easements
b. Pertaining to Waters
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.
Remedial Law; Civil Procedure; Actions; Dismissal of complaint for insufficiency of the
cause of action; Test of sufficiency of the ultimate facts alleged in the complaint to constitute a
cause of action.—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.
Same; Same; Civil Law; Sales; Redemption; No redemption of the property under Art.
1622 of the Civil Code.— the instant case, it cannot be denied that petitioner Tañedo cannot
redeem the entire Lot 7501-B from the spouses 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.
Same; Same; Same; Same; Same; Action for recovery of damages based on breach of
promise.—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.
Same; Same; Same; Same; Trial necessary to determine the amount of damages
suffered for breach of promise to sell.—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 Tañedo by reason of such breach of promise to sell, if indeed
there is such a breach.
Same; Same; Same; Same; Easement; Petitioner’s right to continue to use the septic
tank erected on a lot ceased upon the subdivision of the land and its subsequent sale to different
owners who do not have the same interest.—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.
Same; Same; Same; Same; Extinguishment of easement; Alienation of the dominant and
servient estates to different persons is not one of the grounds for extinguishment of the
easement.—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.
Same; Same; Same; Same; Same; Absent a statement abolishing or extinguishing the
easement of drainage the use of the septic tank is continued by operation of law; The new
owners of the servient estate cannot impair the use of the servitude.—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 Tañedo.
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.
PADILLA, J.:
This is a petition for review on certiorari of the Order issued by the respondent judge,
Hon. Juanito 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.
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.
Antonio Cardenas further agreed that he would sell Lot 7501-B only to Eduardo
Tanedo 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.”
Antonio Cardenas, however, sold Lot 7501-B to the herein respondent spouses
Romeo and Pacita Sim. Upon learning of the sale, Eduardo Tañedo offered to redeem
the property from Romeo Sim. But the latter refused. Instead, Romeo Sim blocked the
sewage pipe connecting the building of Eduardo Tañedo built on Lot 7501-A, to the
septic tank in Lot 7501-B. He also asked Tañedo to remove that portion of his building
enroaching on Lot 7501-B. As a result, Eduardo Tañedo, invoking the provisions of
Art. 1622 of the Civil Code, filed an action for legal redemption and damages, with a
prayer for the issuance of a writ of preliminary injunction, before the Regional Trial
Court of Cebu, docketed therein as Civil Case No. CEB-994, against the spouses
Romeo and Pacita Sim, Antonio Cardenas and his wife Mae Linda Cardenas, the
Register of Deeds of Cebu City, and Banco Cebuano, Cebu City Development Bank.
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.
Antonio Cardenas, upon the other hand, admitted that he had agreed to sell Lot
7501-B to Eduardo Tañedo and claimed 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.
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.
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.
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.
Tañedo filed a motion for reconsideration of the order, but his motion was denied
on 20 January 1984.
Hence, the present recourse by petitioner Tañedo.
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.
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 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 plaintiff’s 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 reimbursement and attorneys fee in the sum of
P10,000.00 which should be chargeable to both defendant spouses;”
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.”
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;”
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 Tañedo by reason of such breach of promise to sell, if indeed there
is such a breach.
ownership of the two estates is divided, the contrary should be provided
in the title of conveyance of either of them, or the sign aforesaid should
be removed before the execution of the deed. This provision shall also
apply in case of the division of a thing owned in common by two or more
persons.”
In the instant case, no statement abolishing or extinguishing the easement of
drainage was mentioned in the deed of sale of Lot 7501-A to Eduardo Tañedo. Nor
did Antonio Cardenas stop the use of the drain pipe and septic tank by the occupants
of Lot 7501-A before he sold said lot to Eduardo Tañedo. 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.

Moreover, the finding of the trial court that petitioner Tañedo’s right to continue to use WHEREFORE, the Orders complained of are hereby REVERSED and SET ASIDE.
the septic tank, erected on Lot 7501-B, ceased upon the subdivision of the land and The respondent judge or another one designated in his place is directed to proceed
its subsequent sale to different owners who do not have the same interest, also with the trial of this case on the merits. With costs against private respondents.
appears to be contrary to law. Article 631 of the Civil Code enumerates the grounds SO ORDERED.
for the extinguishment of an easement. Said article provides:
“Art. 631. Easements are extinguished: Note.—On a motion to dismiss based on the ground that the complaint states no cause of
(1)By merger in the same person of the ownership of the dominant and action the inefficiency must appear on the face of the complaint. (Que vs. Court of First Instance
servient estates; of Rizal, 117 SCRA 760.)
(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 ——o0o——
used; and, with respecr 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 condition, 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
 No. L-21727. May 29, 1970.
CRISPINA SALAZAR, petitioner, vs. GUILLERMO GUTIERREZ, and DAMASO
MENDOZA, respondents.
Civil actions; Appeal from Court of Appeals to Supreme Court; Filing of petition with
Supreme Court; Effect of failure to prove service of a copy of the petition upon the Court of
Appeals.—Failure to comply with the requirement of proof of service of a copy of the petition
upon the Court of Appeals under Section 1 of Rule 46 is not fatal in an appeal by certiorari upon
a question of law, as distinguished from an original petition for certiorari under Rule 65, the Court
of Appeals being merely a nominal party respondent The original parties in the trial court are the
same parties in the appeal.
Property; Easement; Easement of aqueduct; Where requisites of Article 643 of Civil Code
on establishment of easement held complied with —The requisites of Article 643 of the Civil
Code for the establishment of easement of aqueduct are held complied with where (1) the
disputed canal had been in existence since the Spanish regime, or at least prior to the original
registration of the lot in question, and that such use had lasted continuously for at least thirty
years—from which a fair presumption arises that the applicant had a right to use it and that the
water he could dispose of was sufficient for the purpose; (2) the number of years that have
elapsed since the easement had first come into existence and the subsequent changes in
ownership of the lots involved would make it impossible to present proof of indemnity to the
owner of the servient estate; (3) the proposed right of way is still the most convenient despite
proximity or abutment of the lot to a stream where the stream is lower than the other parts of the
lot and that the portion of the lot which abuts the stream is a precipice.
Same; Same; Same; Law allows creation of compulsory easement to extend an irrigation
system.—Article 118 of the Spanish Law of Waters allows the creation of a compulsory
easement of aqueduct for the purpose of establishing or extending an irrigation system, and
there is nothing to the contrary in the Civil Code.
Same; Same; Same; Effect of registration of servient lot without annotation of
encumbrance at back of certificate of title.—The registration of the servient lot without the
corresponding registration of the easement of aqueduct on the title cannot summarily terminate it
thirty years thereafter where the original registered owner of the servient lot allowed the
easement to continue in spite of such non-registration: the least that can be said is that he either
recognized its existence as a compulsory servitude on his estate or voluntarily agreed to its
establishment and continuance. And subsequent purchasers of the servient estate cannot
capitalize on the absence of annotation on the title where they are aware of the existence of the
easement and likewise allowed it to continue for 26 years after they acquired title.
MAKALINTAL, J.:
Judgment was rendered by the Court of First Instance of Bataan (Civil Case No.
2269) in favor of the plaintiff, Crispina Salazar, now petitioner; on appeal by the
defendants, Guillermo Gutierrez and Damaso Mendoza, the Court of Appeals
reversed (CA-G.R. No. 19489-R); and the plaintiff elevated the case to us for review
by certiorari.
Crispina Salazar is owner of a piece of land (Lot 436 of the Cadastral Survey of
Balanga) situated in Tuyo, Balanga, Bataan, covered by Transfer Certificate of Title
1578 issued by the Register of Deeds of the said province, and acquired by her from
the municipality of Balanga on May 4, 1949. The lot is bounded on the northeast by
Lot 361, on the southeast by Sapang Tuyo, on the southwest by Lot 435, and on the
northwest by Lot 433.
Lot 433 was registered under the Torrens system on July 23. 1923, with Original
Certificate of Title 2162. Ownership passed to respondent Guillermo Gutierrez by
inheritance in 1927, and Transfer Certificate of Title No. 1059 was issued in his name
on June 11, 1928. No annotation of any lien or encumbrance affecting the land
appears on either title.
Before the present controversy arose, Lot 436 and some of the surrounding
estates, including Lot 433, were irrigated with water from Sapang Tuyo, a public
stream, flowing through a dike that traversed Lots 431, 434, 433 and 461. The portion
of this dike that passed through Lot 438 branched near the boundary between this lot
and Lot 434 into a canal which ran across the rest of Lot 433 up to Lot 436. It was
with the water flowing through this canal that Lot 436 used to be irrigated.
On February 24, 1953 respondent Damaso Mendoza, a lessee of Lot 433,
demolished the said canal, thereby stopping the flow of the water and depriving
Crispina Salazar's Lot 436 of the irrigation facilities which It had formerly enjoyed. Her
requests that the canal be rebuilt and 'the water flow restored having been turned
down, Salazar commenced the present suit on March 2, 1953, praying that these
reliefs be granted her by the Court and that the defendants be ordered to pay her
actual damages in the sum of P900, moral damages in the sum of P5,000, and
P1,000 for attorney's fees, plus costs, The trial court issued a writ of preliminary
injunction as prayed for by the plaintiff, ordering the defendants to restore the
demolished portion of the canal and to refrain from again demolishing the same
pending trial, but the writ was dissolved on March 9, 1953, upon a counterbond filed
by the defendants. The latter answered with their own counterclaim for damages,
denied the substantial averments of the complaint and put up a number of affirmative
defenses.
After trial, the Court of First Instance of Bataan, finding that the demolished canal
had been in existence for more than thirty years and that 'the big dike from which it
extended had been constructed for the use of Lot 436 as well as several other lots
belonging to different owners, rendered judgment on April 10, 1956, ordering the
defendants to restore at their expense the canal in question, to connect it with the
canal f ound in Lot 436 and to cause the corresponding annotation of the
encumbrance on Transfer Certificate of Title 1059 covering Lot 433; and ordering the
defendants to pay the plaintiff the sum of P1,360 annually beginning the agricultural
year 1956-1957 until the restoration of the canal, P4,700 as actual damages, P5,000
as moral damages, and P1,000 as attorney's fees, plus costs.
On July 26, 1963, the Court of Appeals reversed the decision of the Court of First
Instance and held that since the easement of aqueduct over Lot 433 for the benefit of
Lot 436 was a voluntary one, the same was extinguished when Lot 433 was
registered on July 23, 1923 and the corresponding certificate of title was issued
without the annotation of said easement as a subsisting encumbrance.
The respondents have raised a preliminary procedural question, alleging that
Section 1 of Rule 46 (now Section 1 of Rule 45), requiring proof of service of a copy
of the petition upon the Court of Appeals, was not complied with. Such omission,
however, is not of jurisdictional import. In an appeal by certiorari upon a question of
law, as distinguished from an original petition for certiorari under Rule 65, the Court of
Appeals is merely a nominal party -respondent. The original parties in the trial court
are the same parties in the appeal.
The main issue as set forth in the decision of the Court of Appeals is the nature of
the easement of aqueduct claimed by the petitioner. If voluntary, according to the said
Court, the easement was extinguished upon the registration of Lot 433 in 1923,
pursuant to Section 39 of Act No. 496, which provides:
"But if there are easements or other rights appurtenant to a parcel of registered
land which for any reason have failed to be registered, such easements or rights
shall remain so appurtenant notwithstanding such failure and shall be held to pass
with the land until cut off or extinguished by the registration of the servient estate,
or in any other manner." (Italics supplied).
In arriving- at the conclusion that the easement in question was voluntary and not
legal or compulsory, the Court of Appeals took into consideration the provisions of
Articles 557 and 558 of the Spanish Civil Code, now Articles 642 and 643 of the new
Civil Code respectively, as follows:
"ART. 642. Any person who may wish to use upon his own estate any water of
which he can dispose shall have the right to make it flow through the intervening
estates, with the obligation to indemnify their owners, as well as the owners of the
lower estates upon which the waters may filter or descend."
"ART. 643, One desiring to make use of the right granted in the preceeding
article is obliged:
"(1)To prove.that he can dispose of the water and that it is sufficient for the
use for which it is intended:
"(2)To show that the proposed right of way is the most convenient and the
least onerous to third persons;
"(3)To indemnify the owner of the servient estate in the manner determined
by the laws and regulations."
Specifically the appellate court held that there is no evidence to show that the
petitioner has complied with the three requisites laid down in Article 643 in order to
entitle her to claim a legal easement of aqueduct under Article 642. It bears repeating
that the finding thus made, although apparently factual in character, is premised upon
supposed absence of evidence, and therefore is reviewed by this Court if the premise
is clearly contradicted by the record or unjustified upon other considerations which
logically lead to a different conclusion, but which the decision under review did not
take into account.
On the first requisite of Article 643—that the petitioner must prove that he can
dispose of the water and that it is sufficient for the use for which it is intended—there
is the statement of the trial court that the disputed canal had been in existence since
the Spanish regime, or at least prior to the original registration of Lot 433 in 1923, and
that of the Court of Appeals itself confirmatory of this second alternative finding. If, as
thus found, the petitioner had been using water from Sapang Tuyo to irrigate Lot 436
since she acquired said lot in 1949, as the municipality of Balanga had been doing
before her, and that such use had lasted continuously for at least thirty years, it is a
fair presumption that she had a right to do so and that the water she could dispose of
was sufficient for the purpose. Indeed it would be a superfluity to require her to
produce a permit from the proper authorities, for even without it the right had already
become vested both under Article 194 of the Spanish Law of Waters and under
Article 504 of the Civil Code, which respectively state:
"ART. 194. Any person who has enjoyed the use of public waters for a term of
twenty years without objection on the part of the authorities or of any third person,
shall continue in its enjoyment, even though he may not be able to show that he
secured proper permission."
"ART. 504. The use of public waters is acquired:
(1)By administrative concession;
(2)By prescription for ten years.
The extent of the rights and obligations of the use shall be that established, in the
first case, by the terms of the concession, and, in the second case, by the manner
and form, in which the waters have been used.
The third requisite of Article 643 of the Civil Code refers to the matter of indemnity to
the owner of the servient estate. As correctly pointed out by the petitioner, it would be
nigh impossible now to present actual proof that such indemnity has been paid,
considering the number of years that have elapsed since the easement had first come
into existence and the subsequent changes in ownership of the lots involved. It
stands to reason, however, that if the easement had continued for so long in fact, not
only before Lot 433 was registered in 1928 but for thirty years thereafter, until cut off
by the respondents in 1953 the legal requirement in question must have been
complied with.
The other requisite of Article 643 is that "the proposed right of way is the most
convenient and the least onerous to third persons." The Court of Appeals stated that
the petitioner has not established this fact, and that "her own evidence reveals that
her lot is abutting Sapang Tuyo on its southern boundary, wherefrom she can easily
and directly draw the water necessary to irrigate her land." This statement is an
oversimplification. Proximity or abutment of a piece of land to a stream does not
necessarily carry with it the conclusion that water may conveniently be drawn directly
therefrom for irrigation. In the first place, the petitioner has pointed out in her brief,
without contradiction by the respondents, that the portion of her land which
abuts Sapang Tuyo is precipice. Secondly, the trial court made an ocular inspection
of the premises and observed that the eastern and northeastern portions of Lot 436
are lower than the southwestern,. western and northwestern (the point where Lot 436
adjoins Lot 433) portions of the same. Finally, it would appear from the observation
made by the same court that the demolished canal is part of a system of conduits
used to irrigate the lands of the petitioner and the respondents as well as the
surrounding estates belonging to other owners, and that this system of conduits is of
a permanent nature. The trial court's description bears repeating:
"At the ocular inspection conducted on September 22, 1953, it was found that the
eastern and northeastern portions of Lot No. 436 are lower than the southern,
western and northwestern portions of the same; that about one-fourth (1/4) only of
the lot is planted to palay and this palay is yellowish, scarce and could hardly merit
attention to produce any substantial quantity of palay; that this palay is planted in
the eastern portion of the same; that the palay planted on the land of defendant
Gutierrez and on the lot east of the land of the plaintiff is luxuriant, green and had
all the earmarks of producing a good harvest; that the 'pinitak' on the northwestern
portion of the land of the plaintiff is higher than the rest of the land; that on this
portion is found a canal about one and a half (1-1/2) meters deep which canal runs
south and parallel to the boundary line of Lot 436 owned by the plaintiff and Lot
No. 435 and is one and a half (1-1/2) meters from this boundary; that along the
southern boundary of Lot No. 433 that separates it from Lot No. 436 is a 'minangon'
or a dike and water flows continuously from one 'pinitak' to another of said Lot No.
433 up to a point between points 15' and 14' of said lot as shown on Exhibit 'A' x x
x that this water passes from one 'pinitak' to another through openings made on
the 'pilapils' or small dikes that separate the several 'pinitaks' on this Lot No. 433;
that the western side of the canal that was demolished is located on the boundary
line of Lots Nos. 433 and 434 and this boundary line is higher and some trees are
found therein; that the new canal x x x is short and the old canal from point '13' to
about point 7' of Lot No, 433 on this exhibit is still in use although it is not clean;
that Lot No. 434 owned by Antonio Mendoza is irrigated by two (2) pipes coming
from Lot No. 431 and by a canal that comes from Lot No. 431 and by a canal that
comes from the main irrigation canal located on the boundary line of. these two (2)
lots 431 and 434; that this main irrigation canal is the canal that goes through Lot
No. 443 xxx which canal ends farther east of Lot 448 x x x; that this canal begins
from the dam f arther west of these Lots Nos. 431, 434, 433 and 436.
xxx xxx xxx
The boundary line of the two (2) lots Nos. 433 and 434 shows that it is a
'minangon', a dike. It. is extraordinarily high. From this situation, it can be
concluded that the canal along this boundary line must be big. To irrigate the
southern part of Lot No, 433 would not require a big and permanent canal if the
same was used to irrigate the southern part of Lot No. 433, Canal marked 'W'
which is a substitute canal is small and shallow, From the remnants of the old and
demolished canal, it is safe to assume that the canal has been in existence for a
long time as shown by some big trees on the high 'minangon.' If it were to water
only the southern part of the lot as claimed by defendants, it would have been the
same in size as the new canal mark 'W' on Exhibit 'A/ The construction of the new
canal marked 'W' on the exhibit is a feeble attempt to justify the alleged purpose
of the old canal, but this attempt at coverage is laid bare by the existence of the
old canal that crossed Lot No. 433 x x x. Considering that the southern portion of
said lot is lower than the rest of the same, the Court believes that the openings on
the dike of the old canal would be sufficient to let water flow to the southern portions
of this lot. The western portion of this lot could have been watered from the old
canal ('X') or from the existing canal ('Z') on Exhibit 'A'. That being so, there is only
one explanation why the old canal ('X') is in existence and that is for the use of Lot
No. 436 and other lots farther east of Lot No. 436."
It is a reasonable conclusion from the foregoing that the demolished canal supplying
water to Lot 436 of the petitioner was merely extension of the system of conduits
established long ago, considering that in view of the topography of the area and the
proximity of the said lot to the main dike in Lot 433 it was more convenient to make
the connection therewith than to draw water directly from Sapang Tuyo. Article 118 of
the Spanish Law of Waters allows the creation of a compulsory easement of
aqueduct for the purpose of establishing or extending an irrigation system, and there
is nothing to the contrary in the Civil Code.
In any case the respondents are hardly in a position to avail of the registration of
Lot 433 in 1923 without the corresponding regist ation of the easement on the title as
an excuse to summarily terminate it thirty years thereafter. The original registered
owner allowed the easement to continue in spite of such non-registration: the least
that can be said is that he either recognized its existence as a compulsory servitude
on his estate or voluntarily agreed to its establishment and continuance. And the
respondent Guillermo Gutierrez, as -the successor-in-Interest to the said owner by
inheritance, is not an innocent third person who could plead the absence of
annotation on the title. Not only was he aware of the existence of the easement when
he inherited the property in 1927, but he likewise allowed it to continue for twenty-six
years after he acquired title. He is bound both by the act of his predecessor and by
his own.
WHEREFORE, the decision of the Court of Appeals is SET ASIDE, and that of
the Court of First Instance of Bataan AFFIRMED, with costs against the respondents.
Notes.—Easement of acqueduct.—Articles 642 and 643 of the new Civil Code (formerly
Articles 567 and 558 of the old Code), in conjunction with Articles 118 to 125, inclusive, of the
Law of Waters of 1866, provide authority for the rule that one who wishes to use upon his own
land any water of which "he may have control" is entitled to take it through the intervening
estates, subject to the obligation of indemnifying the owners thereof, and thus the right to
acquire an easement to bring in water from a river to supply fishponds (Gonzales vs. De Dios, L-
3099, May 21, 1951). 'This is in accordance with the precept engrained In the corpus of our
jurisprudence that no enlightened concept of ownership can shut out the idea of restrictions
thereon, such as easements. Absolute and unlimited dominion is unthinkable because it would
destroy and defeat itself,. inasmuch as the proper enjoyment of property requires mutual service
and forbearance among the adjoining estates (Amor vs. Florentino, 74 Phil. 403).