PEDRO SEPULVEDA, SR., substituted by SOCORRO S.
also executed a Deed of Absolute
LAWAS, Administratrix of His Estate, petitioner,
vs. ATTY. PACIFICO S. PELAEZ, respondent.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review on certiorari under
Rule 45 of the Rules of Court, of the Decision [1] of the Court
of Appeals (CA) in CA-G.R. CV No. 43758 affirming the
decision of the Regional Trial Court (RTC) of Danao City,
Branch 25, in Civil Case No. SF-175.
On December 6, 1972, private respondent Atty.
Pacifico Pelaez filed a complaint against his granduncle,
Pedro Sepulveda, Sr., with the then Court of First Instance
(CFI) of Cebu, for the recovery of possession and ownership
of his one-half (1/2) undivided share of several parcels of
land covered by Tax Declaration (T.D.) Nos. 28199, 18197,
18193 and 28316; his undivided one-third (1/3) share in
several other lots covered by T.D. Nos. 28304, 35090, 18228,
28310, 26308, 28714, 28311, 28312 and 28299 (all located in
Danao, Cebu); and for the partition thereof among the co-
owners. The case was docketed as Civil Case No. SF-175.
The eleven (11) lots were among the twenty-five (25)
parcels of land which the private respondents mother, Dulce
Sepulveda, inherited from her grandmother, Dionisia
Sepulveda under the Project of Partition [2] dated April 16,
1937 submitted by Pedro Sepulveda, Sr. as the administrator
of the formers estate, duly approved by the then CFI of Cebu
in Special Proceeding No. 778-0. Under the said deed, Pedro
Sepulveda, Sr. appeared to be the owner of an undivided
portion of Lot No. 28199, while his brother and Dulces uncle
Santiago Sepulveda, was the undivided owner of one-half
(1/2) of the parcels of land covered by T.D. Nos. 18197,
18193 and 28316. Dulce and her uncles, Pedro and Santiago,
were likewise indicated therein as the co-owners of the
eleven other parcels of land, each with an undivided one-
third (1/3) share thereof.
In his complaint, the private respondent alleged that
his mother Dulce died intestate on March 2, 1944, and aside
from himself, was survived by her husband Rodolfo Pelaez
and her mother Carlota Sepulveda. Dulces grandfather
Vicente Sepulveda died intestate on October 25, 1920,[3] and
Dulce was then only about four years old. According to the
private respondent, his grandmother Carlota repeatedly
demanded the delivery of her mothers share in the eleven
(11) parcels of land, but Pedro Sepulveda, Sr. who by then
was the Municipal Mayor of Tudela, refused to do so. Dulce,
likewise, later demanded the delivery of her share in the
eleven parcels of land, but Pedro Sepulveda, Sr. still refused,
claiming that he needed to continue to possess the property
to reap the produce therefrom which he used for the
payment of the realty taxes on the subject properties. The
private respondent alleged that he himself demanded the
delivery of his mothers share in the subject properties on so
many occasions, the last of which was in 1972, to no avail.
The private respondent further narrated that his
granduncle executed an affidavit[4] on November 28, 1961,
stating that he was the sole heir of Dionisia when she died
intestate on June 5, 1921, when, in fact, the latter was
survived by her three sons, Santiago, Pedro and Vicente.
Pedro Sepulveda, Sr.
Sale[5] on July 24, 1968 over the property covered by T.D. No.
19804 (T.D. No. 35090) in favor of the City of Danao
for P7,492.00. According to the private respondent, his
granduncle received this amount without his (private
respondents) knowledge.
The private respondent prayed that, after due hearing,
judgment be rendered in his favor, thus:
ON THE FIRST CAUSE OF ACTION:
1. Declaring the plaintiff the absolute owner of
ONE-HALF (1/2) portion of the TWO (2)
parcels of land described in paragraph 2 of
the complaint;
2. Declaring the plaintiff the absolute owner of
the ONE-THIRD (1/3) portion of the NINE
(9) parcels of land described in paragraph
3 of the complaint;
3. Ordering the defendant to deliver to the
plaintiff the latters ONE-THIRD (1/3)
share of the SEVEN THOUSAND FOUR
HUNDRED NINETY-TWO PESOS
(P7,492.00) representing the purchase price
of the parcel of land described in
paragraph 3(a) of the complaint with
interest thereon until the amount is fully
paid;
ON THE SECOND CAUSE OF ACTION:
1. Ordering the partition and segregation of the
ONE-HALF (1/2) portion belonging to the
plaintiff of the TWO (2) parcels of land
described in paragraph 2 of the complaint;
2. Ordering the partition and segregation of the
ONE-THIRD (1/3) portion belonging to
the plaintiff of the remaining EIGHT (8)
parcels of land described in paragraph 3 of
the complaint;
COMMON TO THE FIRST AND SECOND CAUSES OF
ACTION:
1. Ordering the defendant to pay the plaintiff the
amount of FIFTY THOUSAND PESOS
(P50,000.00) as moral damages;
2. Ordering the defendant to pay the plaintiff
exemplary damages the amount of which
is left to the discretion of this Honorable
Court;
3. Ordering the defendant to deliver to the
plaintiff the latters share of the fruits of
the ELEVEN (11) parcels of land subject-
 matter of this complaint, the value of
which will be proven during the trial;
4. Ordering the defendant to pay the plaintiff
actual litigation expenses, the value of
which will be proven during the trial;
5. Ordering the defendant to pay attorneys fee in
the amount of TWELVE THOUSAND
PESOS (P12,000.00);
6. Granting to the plaintiff such other reliefs and
remedies as he may be entitled to in
accordance with law and equity.[6]
In his answer to the complaint, Pedro Sepulveda, Sr.
admitted having executed a deed of sale over the parcel of
land covered by T.D. No. 19804 in favor of Danao City, but
averred that the latter failed to pay the purchase price
thereof; besides, the private respondent had no right to share
in the proceeds of the said sale. He likewise denied having
received any demand for the delivery of Dulces share of the
subject properties from the latters mother Carlota, or from
the private respondent.
During the trial, Pedro Sepulveda, Sr. died intestate. A
petition for the settlement of his estate was filed on May 8,
1975 with the RTC of Cebu, docketed as Special Proceeding
No. SF-37. His daughter, petitioner Socorro Sepulveda
Lawas, was appointed administratrix of his estate in July
1976. In compliance with the decision of this Court in Lawas
v. Court of Appeals,[7]docketed as G.R. No. L-45809 and
promulgated on December 12, 1986, the deceased was
substituted by the petitioner.
To prove the delivery of Dulces share under the
project of partition, the petitioner presented the Affidavit of
Consolidation she executed in October 1940 covering
thirteen (13) of the twenty-five (25) parcels of land which
were deeded to her under the Project of Partition, [8] as well
as the Order[9] dated March 24, 1962 of the then CFI in
Special Proceeding No. 778-R, denying Carlotas motion for
the reconstitution of the records of the said case, and for the
delivery of Dulces share in the eleven parcels of land. The
court likewise declared therein that Dulce, through her
grandchildren and her mother, Carlota, had already received
her share of the estate from Pedro Sepulveda, Sr. as early as
January 10, 1938.
According to the petitioner, Dulce and Pedro
Sepulveda, Sr. had a verbal agreement wherein the eleven
parcels of land covered by the complaint would serve as the
latters compensation for his services as administrator of
Dionisias estate. Thus, upon the termination of Special
Proceeding No. 778-0, and subsequent to the distribution of
the shares of Dionisias heirs, Pedro Sepulveda, Sr. then
became the sole owner of Dulces shares.
The petitioner likewise adduced evidence that
Santiago Sepulveda died intestate and was survived by his
wife, Paz Velez Sepulveda and their then minor children.
[10]
 It was pointed out that the private respondent failed to
implead Paz Sepulveda and her minor children as parties-
defendants in the complaint.
It was further claimed that Pedro Sepulveda, Sr.
declared the property covered by T.D. No. 18199 [11] under his
name for taxation purposes since the beginning of 1948.[12] It
was likewise alleged that the eleven (11) parcels of land
deeded to Dulce under the Project of Partition had been
declared for taxation purposes under the name of Pedro
Sepulveda since 1974, and that he and his heirs paid the
realty taxes thereon.[13]
On June 7, 1993, the trial court rendered judgment[14] in
favor of the private respondent. The fallo of the decision
reads:
WHEREFORE, premises considered, judgment is hereby
rendered in favor of plaintiff and against the defendant by
declaring that the plaintiff is legally and rightfully entitled to
the one half (1/2) portion of the two (2) parcels of land
described in paragraph 2 of the Complaint and to the one
third (1/3) portion of the nine (9) parcels of land described
in paragraph 3 of the complaint as co-owner thereof, and
ordering the partition and segregation of the said one half
(1/2) portion of the said two (2) parcels of land and of the
said one third (1/3) portion of the nine (9) parcels of land,
and in the partition thereof, the mechanics of partition
outlined in Rule 69 of the Revised Rules of Court must be
followed (Magallon vs. Montejo, 146 SCRA 282); ordering
the defendant Socorro Lawas, as administratrix of the Estate
of Pedro Sepulveda, Sr., to deliver to plaintiff the latters one
third (1/3) share of the P7,492.00 representing the purchase
price of the parcel of land sold to Danao City with interest of
twelve [per] centum (12%) per annum (Reformina vs. Tomol,
139 SCRA 260) from the date of filing of the Complaint until
the amount due to plaintiff is fully paid, to pay attorneys
fees to plaintiffs attorney in the sum of P10,000.00, and to
pay the costs. The counterclaim is hereby dismissed.
SO ORDERED.[15]
The trial court ruled that the private respondents
action for reconveyance based on constructive trust had not
yet prescribed when the complaint was filed; that he was
entitled to a share in the proceeds of the sale of the property
to Danao City; and that the partition of the subject property
among the adjudicatees thereof was in order.
The petitioner appealed the decision to the CA, which
rendered judgment on January 31, 2002, affirming the
appealed decision with modification.
The petitioner now comes to the Court via a petition
for review on certiorari, contending that the appellate court
erred as follows:
1. THE COURT OF APPEALS ERRED IN THE
INCORRECT APPLICATION OF ART. 494 OF
THE CIVIL CODE AND IN UPHOLDING THE
REGIONAL TRIAL COURTS FINDING THAT A
TRUST RELATIONSHIP WAS CREATED
BETWEEN HEREIN RESPONDENT AND PEDRO
SEPULVEDA [SR.].
2. THE COURT OF APPEALS ERRED IN NOT
APPLYING THE LAWS ON PRESCRIPTION
AND LACHES TO THE FACTS AS PROVEN IN
THE CASE AGAINST HEREIN RESPONDENT.
 3. THE COURT OF APPEALS ERRED IN
UPHOLDING THE FINDING OF THE
REGIONAL TRIAL COURT, BRANCH 25 IN
DANAO CITY THAT PAYMENT WAS MADE BY
DANAO CITY FOR ONE (1) OF THE ELEVEN
(11) PARCELS INVOLVED IN THE CASE AND
OF WHICH HEREIN RESPONDENT SHOULD
BE PAID BY PETITIONER ONE THIRD (1/3) OF
THE PURCHASE PRICE.
4. THE COURT OF APPEALS ERRED IN
AWARDING MORAL AND EXEMPLARY
DAMAGES AND A SHARE IN THE RENTS AND
PROFITS OF THE ELEVEN (11) PARCELS TO
HEREIN RESPONDENT.
5. THE COURT OF APPEALS ERRED IN
UPHOLDING THE REGIONAL TRIAL COURTS
FINDING THAT ATTORNEYS FEES ARE TO BE
AWARDED AND EVEN INCREASING THE
AMOUNT THEREOF.[16]
The petition is granted for the sole reason that the
respondent failed to implead as parties, all the indispensable
parties in his complaint.
As gleaned from the material averments of the
complaint and the reliefs prayed for therein, the private
respondent, as plaintiff therein, sought the recovery of the
ownership and possession of the ten (10) parcels of land and
the partition thereof; and for the payment of his share in the
proceeds of the sale of the property which Pedro Sepulveda,
Sr. sold to Danao City amounting to P7,492.00, which Pedro
Sepulveda, Sr. claimed was left unpaid. It appears that when
the private respondent filed the complaint, his father,
Rodolfo Pelaez, was still alive. Thus, when his mother Dulce
Pelaez died intestate on March 2, 1944, she was survived by
her husband Rodolfo and their son, the private respondent.
Under Article 996 of the New Civil Code, [17] Rodolfo Pelaez,
as surviving spouse, is entitled to a portion in usufruct equal
to that corresponding by way of legitime to each of the
legitimate children who has not received any betterment.
The rights of the usufructuary are provided in Articles 471 to
490 of the old Civil Code.[18] In Gamis v. Court of Appeals,
[19]
 we held that:
Under articles 807 and 834 of the old Civil Code the
surviving spouse is a forced heir and entitled to a share in
usufruct in the estate of the deceased spouse equal to that
which by way of legitime corresponds or belongs to each of
the legitimate children or descendants who have not been
bettered or have not received any share in the one-third
share destined for betterment. The right of the surviving
spouse to have a share in usufruct in the estate of the
deceased spouse is provided by law of which such spouse
cannot be deprived and which cannot be ignored. Of course,
the spouse may waive it but the waiver must be express.
Section 1, Rule 69 of the Rules of Court provides that
in an action for partition, all persons interested in the
property shall be joined as defendants.
Section 1. Complaint in action for partition of real estate.- A
person having the right to compel the partition of real estate
may do so as in this rule prescribed, setting forth in his
complaint the nature and extent of his title and an adequate
description of the real estate of which partition is demanded
and joining as defendants all the other persons interested in
the property.
Thus, all the co-heirs and persons having an interest in
the property are indispensable parties; as such, an action for
partition will not lie without the joinder of the said parties.
[20]
 The mere fact that Pedro Sepulveda, Sr. has repudiated
the co-ownership between him and the respondent does not
deprive the trial court of jurisdiction to take cognizance of
the action for partition, for, in a complaint for partition, the
plaintiff seeks, first, a declaration that he is a co-owner of the
subject property; and, second, the conveyance of his lawful
shares.[21] As the Court ruled in De Mesa v. Court of Appeals:[22]
The first stage of an action for judicial partition and/or
accounting is concerned with the determination of whether
or not a co-ownership in fact exists and a partition is proper,
that is, it is not otherwise legally proscribed and may be
made by voluntary agreement of all the parties interested in
the property. This phase may end in a declaration that
plaintiff is not entitled to the desired partition either because
a co-ownership does not exist or a partition is legally
prohibited. It may also end, on the other hand, with an
adjudgment that a co-ownership does in truth exist, that
partition is proper in the premises, and that an accounting of
rents and profits received by the defendant from the real
estate in question is in order. In the latter case, the parties
may, if they are able to agree, make partition among
themselves by proper instruments of conveyance, and the
court shall confirm the partition so agreed upon by all the
parties. In either case, whether the action is dismissed or
partition and/or accounting is decreed, the order is a final
one and may be appealed by any party aggrieved thereby.
The second stage commences when the parties are unable to
agree upon the partition ordered by the court. In that event,
partition shall be effected for the parties by the court with
the assistance of not more than three (3) commissioners. This
second phase may also deal with the rendition of the
accounting itself and its approval by the Court after the
parties have been accorded the opportunity to be heard
thereon, and an award for the recovery by the party or
parties thereto entitled of their just shares in the rents and
profits of the real estate in question.[23]
In the present action, the private respondent, as the
plaintiff in the trial court, failed to implead the following
indispensable parties: his father, Rodolfo Pelaez; the heirs of
Santiago Sepulveda, namely, Paz Sepulveda and their
children; and the City of Danao which purchased the
property covered by T.D. 19804 (T.D. No. 35090) from Pedro
Sepulveda, Sr. and maintained that it had failed to pay for
the purchase price of the property.
Rodolfo Pelaez is an indispensable party he being
entitled to a share in usufruct, equal to the share of the
respondent in the subject properties. There is no showing
that Rodolfo Pelaez had waived his right to usufruct.
Section 7, Rule 3 of the Rules of Court reads:
SEC. 7. Compulsory joinder of indispensable parties. Parties in
interest without whom no final determination can be had of
an action shall be joined either as plaintiffs or defendants.
Indeed, the presence of all indispensable parties is a
condition sine qua non for the exercise of judicial power. It is
precisely when an indispensable party is not before the court
that the action should be dismissed. Thus, the plaintiff is
mandated to implead all the indispensable parties,
considering that the absence of one such party renders all
subsequent actions of the court null and void for want of
authority to act, not only as to the absent parties but even as
to those present.[24] One who is a party to a case is not bound
by any decision of the court, otherwise, he will be deprived
of his right to due process. Without the presence of all the
other heirs as plaintiffs, the trial court could not validly
render judgment and grant relief in favor of the private
respondent. The failure of the private respondent to implead
the other heirs as parties-plaintiffs constituted a legal
G.R. No. 152809 August 3, 2006
MERCEDES MORALIDAD, Petitioner,
vs.
SPS. DIOSDADO PERNES and ARLENE
PERNES, Respondents.
DECISION
GARCIA, J.:
Under consideration is this petition for review on certiorari
under Rule 45 of the Rules of Court to nullify and set aside
the following issuances of the Court of Appeals (CA) in CA-
G.R. SP No. 61610, to wit:
1. Decision dated September 27, 2001, 1 affirming an earlier
decision of the Regional Trial Court (RTC) of Davao City
which reversed that of the Municipal Trial Court in Cities
(MTCC), Davao City, Branch 1, in an action for unlawful
detainer thereat commenced by the petitioner against the
herein respondents; and
2. Resolution dated February 28, 2002, 2 denying petitioner’s
motion for reconsideration.
At the heart of this controversy is a parcel of land located in
Davao City and registered in the name of petitioner
Mercedes Moralidad under Transfer Certificate of Title (TCT)
No. T-123125 of the Registry of Deeds of Davao City.
In her younger days, petitioner taught in Davao City, Quezon
City and Manila. While teaching in Manila, she had the good
fortune of furthering her studies at the University of
Pennsylvania, U.S.A. While schooling, she was offered to
teach at the Philadelphia Catholic Archdiocese, which she
did for seven (7) years. Thereafter, she worked at the Mental
Health Department of said University for the next seventeen
(17) years.
During those years, she would come home to the Philippines
to spend her two-month summer vacation in her hometown
obstacle to the trial court and the appellate courts exercise of
judicial power over the said case, and rendered any orders
or judgments rendered therein a nullity. [25]
To reiterate, the absence of an indispensable party
renders all subsequent actions of the court null and void for
want of authority to act, not only as to the absent parties but
even as to those present.[26] Hence, the trial court should
have ordered the dismissal of the complaint.[27]
IN LIGHT OF ALL THE FOREGOING, the petition is
GRANTED. The Decisions of the Court of Appeals in CA-
G.R. CV No. 43758 and of the Regional Trial Court are SET
ASIDE. The Regional Trial Court is ORDERED to dismiss the
complaint without prejudice. No pronouncement as to costs.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Tinga, and Chico-
Nazario, JJ.,  concur.
in Davao City. Being single, she would usually stay in
Mandug, Davao City, in the house of her niece, respondent
Arlene Pernes, a daughter of her younger sister, Rosario.
Back in the U.S.A. sometime in 1986, she received news
from Arlene that Mandug at the outskirts of Davao City was
infested by NPA rebels and many women and children were
victims of crossfire between government troops and the
insurgents. Shocked and saddened about this development,
she immediately sent money to Araceli, Arlene’s older sister,
with instructions to look for a lot in Davao City where Arlene
and her family could transfer and settle down. This was why
she bought the parcel of land covered by TCT No. T-123125.
Petitioner acquired the lot property initially for the purpose of
letting Arlene move from Mandug to Davao City proper but
later she wanted the property to be also available to any of
her kins wishing to live and settle in Davao City. Petitioner
made known this intention in a document she executed on
July 21, 1986. 3 The document reads:
I, MERCEDES VIÑA MORALIDAD, of legal age, single,
having been born on the 29th day of January, 1923, now
actually residing at 8021 Lindbergh Boulevard, Philadelphia,
Pennsylvania, U.S.A., wishes to convey my honest intention
regarding my properties situated at Palm Village Subdivision,
Bajada, Davao City, 9501, … and hereby declare:
1. That it is my desire that Mr. and Mrs. Diosdado M. Pernes
may build their house therein and stay as long as they like;
2. That anybody of my kins who wishes to stay on the
aforementioned real property should maintain an
atmosphere of cooperation, live in harmony and must avoid
bickering with one another;
3. That anyone of my kins may enjoy the privilege to stay
therein and may avail the use thereof. Provided, however,
that the same is not inimical to the purpose thereof;
4. That anyone of my kins who cannot conform with the
wishes of the undersigned may exercise the freedom to look
for his own;
5. That any proceeds or income derived from the
aforementioned properties shall be allotted to my nearest
kins who have less in life in greater percentage and lesser
percentage to those who are better of in standing.
xxx xxx xxx
Following her retirement in 1993, petitioner came back to the
Philippines to stay with the respondents’ on the house they
build on the subject property. In the course of time, their
relations turned sour because members of the Pernes family
were impervious to her suggestions and attempts to change
certain practices concerning matters of health and sanitation
within their compound. For instance, Arlene’s eldest son,
Myco Pernes, then a fourth year veterinary medicine
student, would answer petitioner back with clenched fist and
at one time hurled profanities when she corrected him. Later,
Arlene herself followed suit. Petitioner brought the matter to
the local barangay lupon where she lodged a complaint for
slander, harassment, threat and defamation against the
Pernes Family. Deciding for petitioner, the lupon apparently
ordered the Pernes family to vacate petitioner’s property but
not after they are reimbursed for the value of the house they
built thereon. Unfortunately, the parties could not agree on
the amount, thus prolonging the impasse between them.
Other ugly incidents interspersed with violent confrontations
meanwhile transpired, with the petitioner narrating that, at
one occasion in July 1998, she sustained cuts and wounds
when Arlene pulled her hair, hit her on the face, neck and
back, while her husband Diosdado held her, twisting her
arms in the process.
Relations having deteriorated from worse to worst, petitioner,
on July 29, 1998, lodged a formal complaint before the
Regional Office of the Ombudsman for Mindanao, charging
the respondent spouses, who were both government
employees, with conduct unbecoming of public servants.
This administrative case, however, did not prosper.
Then, on August 3, 1998, petitioner filed with the MTCC of
Davao City an unlawful detainer suit against the respondent
spouses. Petitioner alleged that she is the registered owner
of the land on which the respondents built their house; that
through her counsel, she sent the respondent spouses a
letter demanding them to vacate the premises and to pay
rentals therefor, which the respondents refused to heed.
In their defense, the respondents alleged having entered the
property in question, building their house thereon and
maintaining the same as their residence with petitioner’s full
knowledge and express consent. To prove their point, they
invited attention to her written declaration of July 21, 1986,
supra, wherein she expressly signified her desire for the
spouses to build their house on her property and stay thereat
for as long as they like.
The MTCC, resolving the ejectment suit in petitioner’s favor,
declared that the respondent spouses, although builders in
good faith vis-à-vis the house they built on her property,
cannot invoke their bona fides as a valid excuse for not
complying with the demand to vacate. To the MTCC,
respondents’ continued possession of the premises turned
unlawful upon their receipt of the demand to vacate, such
possession being merely at petitioner’s tolerance, and sans
any rental. Accordingly, in its decision dated November 17,
1999, 4 the MTCC rendered judgment for the petitioner, as
plaintiff therein, to wit:
WHEREFORE, judgment is hereby rendered in favor of
herein plaintiff and against the defendants, as follows:
a) Directing the defendants, their agents and other persons
acting on their behalf to vacate the premises and to yield
peaceful possession thereof to plaintiff;
b) Ordering defendants to pay P2,000.00 a month from the
filing of this complaint until they vacate premises;
c) Sentencing defendants to pay the sum
of P120,000.00 5 as attorney’s fees and to pay the cost of
suit.
Defendants counterclaim are hereby dismissed except with
respect to the claim for reimbursement of necessary and
useful expenses which should be litigated in an ordinary civil
actions. (sic)
Dissatisfied, the respondent spouses appealed to the RTC of
Davao City.
In the meantime, petitioner filed a Motion for Execution
Pending Appeal. The motion was initially granted by the RTC
in its Order of February 29, 2000, but the Order was later
withdrawn and vacated by its subsequent Order dated May
9, 2000 6 on the ground that immediate execution of the
appealed decision was not the prudent course of action to
take, considering that the house the respondents
constructed on the subject property might even be more
valuable than the land site.
Eventually, in a decision 7 dated September 30, 2000, the
RTC reversed that of the MTCC, holding that respondents’
possession of the property in question was not, as ruled by
the latter court, by mere tolerance of the petitioner but rather
by her express consent. It further ruled that Article 1678 of
the Civil Code on reimbursement of improvements
introduced is inapplicable since said provision contemplates
of a lessor-lessee arrangement, which was not the factual
milieu obtaining in the case. Instead, the RTC ruled that
what governed the parties’ relationship are Articles 448 and
546 of the Civil Code, explaining thus:
Since the defendants-appellees [respondents] are admittedly
possessors of the property by permission from plaintiff
[petitioner], and builders in good faith, they have the right to
retain possession of the property subject of this case until
they have been reimbursed the cost of the improvements
they have introduced on the property.
Indeed, this is a substantive right given to the defendants by
law, and this right is superior to the procedural right to [sic]
plaintiff to immediately ask for their removal by a writ of
execution by virtue of a decision which as we have shown is
erroneous, and therefore invalid. (Words in brackets
supplied),
and accordingly dismissed petitioner’s appeal, as follows:
WHEREFORE, in view of the foregoing, the Decision
appealed from is REVERSED and declared invalid.
Consequently, the motion for execution pending appeal is
likewise denied.
Counter-claims of moral and exemplary damages claimed by
defendants are likewise dismissed. However, attorney’s fees
in the amount of fifteen thousand pesos is hereby awarded
in favor of defendants-appellants, and against plaintiffs.
SO ORDERED. 8
Therefrom, petitioner went to the CA in CA-G.R. SP No.
61610.
On September 27, 2001, the CA, while conceding the
applicability of Articles 448 and 546 of the Civil Code to the
case, ruled that it is still premature to apply the same
considering that the issue of whether respondents’ right to
possess a portion of petitioner’s land had already expired or
was already terminated was not yet resolved. To the CA, the
unlawful detainer suit presupposes the cessation of
respondents’ right to possess. The CA further ruled that what
governs the rights of the parties is the law on usufruct but
petitioner failed to establish that respondents’ right to
possess had already ceased. On this premise, the CA
concluded that the ejectment suit instituted by the petitioner
was premature. The appellate court thus affirmed the
appealed RTC decision, disposing:
WHEREFORE, premises considered, the instant petition for
review is hereby denied for lack of merit. Accordingly, the
petitioner’s complaint for Unlawful Detainer is DISMISSED.
SO ORDERED.
With the CA’s denial of her motion for reconsideration in its
Resolution of February 28, 2002, petitioner is now before
this Court raising the following issues:
I. WHETHER OR NOT THE COURT OF APPEALS ERRED
IN DISMISSING THE UNLAWFUL DETAINER CASE FOR
BEING PREMATURE WHICH DECISION IS NOT IN
ACCORDANCE WITH LAW AND JURISPRUDENCE.
II. WHETHER OR NOT THE COURT OF APPEALS ERRED
IN APPLYING ARTICLES 448 AND 546 AND THE
PROVISIONS OF THE CODE ON USUFRUCT INSTEAD
OF ARTICLE 1678 OF THE CIVIL CODE.
The Court rules for the petitioner.
The Court is inclined to agree with the CA that what was
constituted between the parties herein is one of usufruct
over a piece of land, with the petitioner being the owner of
the property upon whom the naked title thereto remained
and the respondents being two (2) among other unnamed
usufructuaries who were simply referred to as petitioner’s
kin. The Court, however, cannot go along with the CA’s
holding that the action for unlawful detainer must be
dismissed on ground of prematurity.
Usufruct is defined under Article 562 of the Civil Code in the
following wise:
ART. 562. Usufruct gives a right to enjoy the property of
another with the obligation of preserving its form and
substance, unless the title constituting it or the law otherwise
provides.
Usufruct, in essence, is nothing else but simply allowing one
to enjoy another’s property. 9 It is also defined as the right to
enjoy the property of another temporarily, including both the
jus utendi and the jus fruendi, 10 with the owner retaining the
jus disponendi or the power to alienate the same. 11
It is undisputed that petitioner, in a document dated July 21,
1986, supra, made known her intention to give respondents
and her other kins the right to use and to enjoy the fruits of
her property. There can also be no quibbling about the
respondents being given the right "to build their own house"
on the property and to stay thereat "as long as they like."
Paragraph #5 of the same document earmarks "proceeds or
income derived from the aforementioned properties" for the
petitioner’s "nearest kins who have less in life in greater
percentage and lesser percentage to those who are better of
(sic) in standing." The established facts undoubtedly gave
respondents not only the right to use the property but also
granted them, among the petitioner’s other kins, the right to
enjoy the fruits thereof. We have no quarrel, therefore, with
the CA’s ruling that usufruct was constituted between
petitioner and respondents. It is thus pointless to discuss
why there was no lease contract between the parties.
However, determinative of the outcome of the ejectment
case is the resolution of the next issue, i.e., whether the
existing usufruct may be deemed to have been extinguished
or terminated. If the question is resolved in the affirmative,
then the respondents’ right to possession, proceeding as it
did from their right of usufruct, likewise ceased. In that case,
petitioner’s action for ejectment in the unlawful detainer case
could proceed and should prosper.
The CA disposed of this issue in this wise:
xxx Section 1, Rule 70 of the 1997 Rules of Civil Procedure,
as amended, provides xxx
xxx xxx xxx
From the foregoing provision, it becomes apparent that for
an action for unlawful detainer to prosper, the plaintiff
[petitioner] needs to prove that defendants’ [respondents’]
right to possess already expired and terminated. Now, has
respondents’ right to possess the subject portion of
petitioner’s property expired or terminated? Let us therefore
examine respondents’ basis for occupying the same.
It is undisputed that petitioner expressly authorized
respondents o occupy portion of her property on which their
house may be built. Thus – "it is my desire that Mr. and Mrs.
Diosdado M. Pernes may build their house therein and
stay as long as they like." From this statement, it seems that
petitioner had given the respondents the usufructuary rights
over the portion that may be occupied by the house that the
latter would build, the duration of which being dependent on
how long respondents would like to occupy the property.
While petitioner had already demanded from the
respondents the surrender of the premises, this Court is of
the opinion that the usufructuary rights of respondents had
not been terminated by the said demand considering the
clear statement of petitioner that she is allowing respondents
to occupy portion of her land as long as the latter want to.
Considering that respondents still want to occupy the
premises, petitioner clearly cannot eject respondents. 12
We disagree with the CA’s conclusion of law on the matter.
The term or period of the usufruct originally specified
provides only one of the bases for the right of a usufructuary
to hold and retain possession of the thing given in usufruct.
There are other modes or instances whereby the usufruct
shall be considered terminated or extinguished. For sure, the
Civil Code enumerates such other modes of extinguishment:
ART. 603. Usufruct is extinguished:
(1) By the death of the usufructuary, unless a contrary
intention clearly appears;
(2) By expiration of the period for which it was constituted, or
by the fulfillment of any resolutory condition provided in the
title creating the usufruct;
(3) By merger of the usufruct and ownership in the same
person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person constituting
the usufruct;
(7) By prescription. (Emphasis supplied.)
The document executed by the petitioner dated July 21,
1986 constitutes the title creating, and sets forth the
conditions of, the usufruct. Paragraph #3 thereof states
"[T]hat anyone of my kins may enjoy the privilege to stay
therein and may avail the use thereof. Provided, however,
that the same is not inimical to the purpose thereof"
(Emphasis supplied). What may be inimical to the purpose
constituting the usufruct may be gleaned from the preceding
paragraph wherein petitioner made it abundantly clear "that
anybody of my kins who wishes to stay on the
aforementioned property should maintain an atmosphere of
cooperation, live in harmony and must avoid bickering with
one another." That the maintenance of a peaceful and
harmonious relations between and among kin constitutes an
indispensable condition for the continuance of the usufruct is
clearly deduced from the succeeding Paragraph #4 where
petitioner stated "[T]hat anyone of my kins who cannot
conform with the wishes of the undersigned may exercise
the freedom to look for his own." In fine, the occurrence of
any of the following: the loss of the atmosphere of
cooperation, the bickering or the cessation of harmonious
relationship between/among kin constitutes a resolutory
condition which, by express wish of the petitioner,
extinguishes the usufruct.
From the pleadings submitted by the parties, it is indubitable
that there were indeed facts and circumstances whereby the
subject usufruct may be deemed terminated or extinguished
by the occurrence of the resolutory conditions provided for in
the title creating the usufruct, namely, the document
adverted to which the petitioner executed on July 21, 1986.
As aptly pointed out by the petitioner in her Memorandum,
respondents’ own evidence before the MTCC indicated that
the relations between the parties "have deteriorated to
almost an irretrievable level." 13 There is no doubt then that
what impelled petitioner to file complaints before the local
barangay lupon, the Office of the Ombudsman for Mindanao,
and this instant complaint for unlawful detainer before the
MTCC is that she could not live peacefully and harmoniously
with the Pernes family and vice versa.
Thus, the Court rules that the continuing animosity between
the petitioner and the Pernes family and the violence and
humiliation she was made to endure, despite her advanced
age and frail condition, are enough factual bases to consider
the usufruct as having been terminated.
To reiterate, the relationship between the petitioner and
respondents respecting the property in question is one of
owner and usufructuary. Accordingly, respondents’ claim for
reimbursement of the improvements they introduced on the
property during the effectivity of the usufruct should be
governed by applicable statutory provisions and principles
on usufruct. In this regard, we cite with approval what Justice
Edgardo Paras wrote on the matter:
If the builder is a usufructuary, his rights will be governed by
Arts. 579 and 580. In case like this, the terms of the contract
and the pertinent provisions of law should govern (3
Manresa 215-216; se also Montinola vs. Bantug, 71 Phil.
449). 14 (Emphasis ours.)
By express provision of law, respondents, as usufructuary,
do not have the right to reimbursement for the improvements
they may have introduced on the property. We quote Articles
579 and 580 of the Civil Code:
Art. 579. The usufructuary may make on the property held in
usufruct such useful improvements or expenses for mere
pleasure as he may deem proper, provided he does not alter
its form or substance; but he shall have no right to be
indemnified therefor. He may, however, remove such
improvements, should it be possible to do so without
damage to the property. (Emphasis supplied.)
Art. 580. The usufructuary may set off the improvements he
may have made on the property against any damage to the
same.
Given the foregoing perspective, respondents will have to be
ordered to vacate the premises without any right of
reimbursement. If the rule on reimbursement or indemnity
were otherwise, then the usufructuary might, as an author
pointed out, improve the owner out of his property. 15 The
respondents may, however, remove or destroy the
improvements they may have introduced thereon without
damaging the petitioner’s property.
Out of the generosity of her heart, the petitioner has allowed
the respondent spouses to use and enjoy the fruits of her
property for quite a long period of time. They opted,
however, to repay a noble gesture with unkindness. At the
end of the day, therefore, they really cannot begrudge their
aunt for putting an end to their right of usufruct. The
disposition herein arrived is not only legal and called for by
the law and facts of the case. It is also right.
WHEREFORE, the petition is GRANTED. The assailed
Decision and Resolution of the CA are REVERSED and SET
[ G.R. No. 152809, August 03, 2006 ]
MERCEDES MORALIDAD
 , petitioner, VS.
SPS. DIOSDADO PERNES AND ARLENE PERNES  unlawful detainer.The MTCC rendered judgment for
 , responden
ts.
 
FACTS:
Petitioner is the registered owner of a parcel of land
in Davao City which is the subject of thecontroversy.
The petitioner had worked in U.S.A. for years until
retirement. Being single, she wouldusually stay in
the house of her niece, respondent Arlene Pernes, at
Mandug, Davao City during hervacation and that in
1986, when she received news from Arlene that
Mandug was infested by NPArebels and many women
and children were victims of crossfire between
government troops and theinsurgents, she
immediately sent money to buy a lot in Davao
City proper where Arlene and her familycould
transfer and settle down. Petitioner wanted the
property to be also available to any of her
kinswishing to live and settle in Davao City and
made known this intention in a document she
executedon July 21, 1986. which reads:I, MERCEDES
VIÑA MORALIDAD, of legal age, single,
… ruled that what governs the rights of the parties is
hereby declare:1. That it is my desire that Mr. and
Mrs. Diosdado M. Pernes may build
their housetherein and stay as long as they
like;2. That anybody of my kins who wishes to stay
on the aforementioned real propertyshould maintain
an atmosphere of cooperation, live in harmony and
must avoid bickering withone another;3. That
anyone of my kins may enjoy the privilege to stay
therein and may avail theuse thereof. Provided,
however, that the same is not inimical to
the purpose thereof;4. That anyone of my kins who
cannot conform with the wishes of
the undersignedmay exercise the freedom to look for
his own;5. That any proceeds or income derived
from the aforementioned properties shall beallotted
to my nearest kins who have less in life in greater
percentage and lesser percentageto those who are
better of in standing.In her retirement, petitioner
came back to the Philippines
ASIDE. Accordingly, the decision of the MTCC is
REINSTATED with MODIFICATION that all of respondents’
counterclaims are dismissed, including their claims for
reimbursement of useful and necessary expenses.
No pronouncement as to costs.
SO ORDERED.
CANCIO C. GARCIA
Associate Justice
WE CONCUR:
to stay with the respondents’ on the
house they build on the subject property. In the
course of time, their relations turned sour
whichresulted in violent confrontations and the filing
of suits at the barangay lupon and to the
Ombudsmanfor conduct unbecoming of public
servants and at the MTCC, an ejectment suit for
the petitioner directing the defendants to vacate the
premisesand to yield peaceful possession thereof to
plaintiff. Respondent spouses appealed to the RTC
wherethe decision of the MTCC was
reversed, holding that respondents’ possession of the
property in
question was not by mere tolerance of the petitioner
but rather by her express consent. It furtherruled
that Article 1678 of the Civil Code on reimbursement
of improvements introduced is inapplicablesince said
provision contemplates of a lessor-lessee
arrangement, which was not the factual milieu
obtaining in the case. Instead, the RTC ruled that
what governed the parties’ relationship are Articles
448 and 546 of the Civil Code.Petitioner went to the
CA wherein her petition was denied on the ground
that it is stillpremature to apply Articles 448 and 546
of the Civil Code considering that the issue of
whether
respondents’ right to possess a portion of petitioner’s
land had already expired or was already
terminated was not yet resolved. The CA further
the law on usufruct but petitioner failed to establish
that respondents’ right to possess had already
ceased.
ISSUES:
What provisions of the Civil Code should govern the
rights of the parties.Whether or
not the respondents’ right to possess the land had
been terminated.
HELD:
 
Usufruct is defined under Article 562 of the Civil
Code in the following wise:
 ART. 562. Usufruct   gives a  right  to  enjoy  the property
of another  with the obligation of preserving its form  and substan
ce, unless  thetitle constituting it or the law otherwise provides.
 
Usufruct, in essence, is nothing else but simply . What may be inimical to the purpose constituting
allowing one to enjoy another’s property the usufruct may be gleaned from thepreceding
. It isalso defined as the right to enjoy the property paragraph where
of another temporarily, including both the in petitioner made it abundantly clear “
 jusutendi  that anybody of my kins who wishes to  stay on the aforementioned
and the property should maintain an atmosphere of cooperation, live in
 jus fruendi  harmony and must avoid bickering with one another 
, with the owner retaining the .” 
 jus disponendi  That the maintenance of a peaceful and harmonious
or the power to alienate thesame.It is undisputed relations between andamong kin constitutes an
that petitioner, in a document indispensable condition for the continuance of the
 , usufruct is clearly deducedfrom the succeeding
made known her intention to give respondentsand Paragraph #4 where petitioner stated
her other kins the right to use and to enjoy the fruits “
of her property and the respondents were That anyone of my kins who cannot conformwith the wishes of the
being given the right “ undersigned may exercise the freedom to look for his own
to build their own house .” 
” on the property and to stay thereat “ In fine, the occurrence of anyof the following:
as long as they like. the loss of the atmosphere of cooperation, the
”  bickering or the cessationof harmonious
  relationship between/among kins constitutes a
Paragraph #5 of the same document earmarks “ resolutory condition which,by express wish of
 proceeds or income derived from theaforementione the petitioner, extinguishes the usufruct
d properties . Thus, the Court rules that thecontinuing animosity
” for the petitioner’s “ between the petitioner and the Pernes family and the
nearest kins who have less in life in violence and humiliationshe was made to endure,
greater  percentage and lesser percentage to those  despite her advanced age and frail condition, are
who are better of in standing enough factual bases toconsider the usufruct as
.”  having been terminated.The relationship between
The established factsundoubtedly gave respondents the petitioner and respondents respecting
not only the right to use the property but also the property in question is
granted them, among one of owner and usufructuary. Accordingly,
the petitioner’s other kins, the respondents’ claim for reimbursement of the
right to enjoy the fruits thereof.There are other improvements they introduced on the property
modes or instances whereby the usufruct shall be during the effectivity of the usufruct should
considered terminated orextinguished. For sure, the begoverned by applicable statutory provisions and
Civil Code enumerates such other modes principles on usufruct. In this regard, we cite
of extinguishment: withapproval what Justice Edgardo Paras wrote on
  ART. 603. Usufruct is extinguished:(1) By the death of the the matter:
usufructuary, unless a contrary intention clearly appears;(2) If the builder is a usufructuary, hisrights will be
By expiration of the period for which it governed by Arts. 579 and 580.
was constituted, or by the fulfillment of By express provision of law, respondents,
any resolutory condition provided in the asusufructuary, do not have the right to
title creating the usufruct  reimbursement for the improvements they may have
;(3) By merger of the usufruct and ownership in the  same person; introducedon the property. We quote Articles 579
(4) By renunciation of the usufructuary;(5) By the total loss of the and 580 of the Civil Code:
thing in usufruct;(6) By the termination of the right of the person
constituting the usufruct;(7) By prescription.  
The document executed by the petitioner constitutes  Art. 579. The usufructuary may make  on the  property held in us
the title creating, and sets forth theconditions of the ufruct  such useful improvements or expenses for mere pleasure as
usufruct. Paragraph #3 thereof states he may deem proper, provided he does not alter its form or
“ substance; but he shall have no right to be indemnified
That anyone of my kins  may enjoy the therefor.  He may, however, remove such improvements, should it
privilege to stay therein  and may avail  the use be possible to do so without damage to the property
thereof. Provided, however,  that the same is not inimical to the   
purposethereof   Art. 580. The usufructuary may set off the  improvements he
”    may have  made  on the  property against anydamage to the same.

In her younger days, petitioner taught in Davao City, Quezon City

and Manila. While teaching in Manila, she had the good fortune of
G.R. No. 152809 August 3, 2006 furthering her studies at the University of Pennsylvania, U.S.A.
MERCEDES MORALIDAD, Petitioner, While schooling, she was offered to teach at the Philadelphia
vs. Catholic Archdiocese, which she did for seven (7) years.
SPS. DIOSDADO PERNES and ARLENE Thereafter, she worked at the Mental Health Department of said
PERNES, Respondents. University for the next seventeen (17) years.During those years,
Facts: she would come home to the Philippines to spend her two-month
summer vacation in her hometown in Davao City. Being single,
she would usually stay in Mandug, Davao City, in the house of her
niece, respondent Arlene Pernes, a daughter of her younger sister,
Rosario.Back in the U.S.A. sometime in 1986, she received news
from Arlene that Mandug at the outskirts of Davao City was
infested by NPA rebels and many women and children were
victims of crossfire between government troops and the insurgents.
Shocked and saddened about this development, she immediately
sent money to Araceli, Arlene’s older sister, with instructions to
look for a lot in Davao City where Arlene and her family could
transfer and settle down. This was why she bought the parcel of
land covered by TCT No. T-123125.Petitioner acquired the lot
property initially for the purpose of letting Arlene move from
Mandug to Davao City proper but later she wanted the property to
be also available to any of her kins wishing to live and settle in
Davao City. Petitioner made known this intention in a document
she executed on July 21, 1986.
Issue:
I. WHETHER OR NOT THE COURT OF APPEALS ERRED IN
DISMISSING THE UNLAWFUL DETAINER CASE FOR
BEING PREMATURE WHICH DECISION IS NOT IN
ACCORDANCE WITH LAW AND JURISPRUDENCE.
II. WHETHER OR NOT THE COURT OF APPEALS ERRED IN
APPLYING ARTICLES 448 AND 546 AND THE PROVISIONS
OF THE CODE ON USUFRUCT INSTEAD OF ARTICLE 1678
OF THE CIVIL CODE.
Ruling:
The Court rules for the petitioner.Usufruct, in essence, is nothing
else but simply allowing one to enjoy another’s property. 9 It is
also defined as the right to enjoy the property of another
temporarily, including both the jus utendi and the jus
fruendi, 10 with the owner retaining the jus disponendi or the power
to alienate the same. 11
It is undisputed that petitioner, in a document dated July 21, 1986,
supra, made known her intention to give respondents and her other
kins the right to use and to enjoy the fruits of her property. There
can also be no quibbling about the respondents being given the
right "to build their own house" on the property and to stay thereat
"as long as they like." Paragraph #5 of the same document
earmarks "proceeds or income derived from the aforementioned
properties" for the petitioner’s "nearest kins who have less in life
in greater percentage and lesser percentage to those who are better
of (sic) in standing." The established facts undoubtedly gave
respondents not only the right to use the property but also granted
them, among the petitioner’s other kins, the right to enjoy the fruits
thereof. We have no quarrel, therefore, with the CA’s ruling that
usufruct was constituted between petitioner and respondents. It is
thus pointless to discuss why there was no lease contract between
the parties.
There are other modes or instances whereby the usufruct shall be
considered terminated or extinguished. For sure, the Civil Code
enumerates such other modes of extinguishment:
ART. 603. Usufruct is extinguished:
(1) By the death of the usufructuary, unless a contrary intention
clearly appears;
(2) By expiration of the period for which it was constituted, or by
the fulfillment of any resolutory condition provided in the title
creating the usufruct;
[G.R. No. 112331. May 29, 1996]
(3) By merger of the usufruct and ownership in the same person;
(4) By renunciation of the usufructuary;
(5) By the total loss of the thing in usufruct;
(6) By the termination of the right of the person constituting the
usufruct;
(7) By prescription. (Emphasis supplied.)
The document executed by the petitioner dated July 21, 1986
constitutes the title creating, and sets forth the conditions of, the
usufruct. Paragraph #3 thereof states "[T]hat anyone of my kins
may enjoy the privilege to stay therein and may avail the use
thereof. Provided, however, that the same is not inimical to the
purpose thereof" (Emphasis supplied). What may be inimical to the
purpose constituting the usufruct may be gleaned from the
preceding paragraph wherein petitioner made it abundantly clear
"that anybody of my kins who wishes to stay on the
aforementioned property should maintain an atmosphere of
cooperation, live in harmony and must avoid bickering with one
another." That the maintenance of a peaceful and harmonious
relations between and among kin constitutes an indispensable
condition for the continuance of the usufruct is clearly deduced
from the succeeding Paragraph #4 where petitioner stated "[T]hat
anyone of my kins who cannot conform with the wishes of the
undersigned may exercise the freedom to look for his own." In
fine, the occurrence of any of the following: the loss of the
atmosphere of cooperation, the bickering or the cessation of
harmonious relationship between/among kin constitutes a
resolutory condition which, by express wish of the petitioner,
extinguishes the usufruct.
From the pleadings submitted by the parties, it is indubitable that
there were indeed facts and circumstances whereby the subject
usufruct may be deemed terminated or extinguished by the
occurrence of the resolutory conditions provided for in the title
creating the usufruct, namely, the document adverted to which the
petitioner executed on July 21, 1986.
Thus, the Court rules that the continuing animosity between the
petitioner and the Pernes family and the violence and humiliation
she was made to endure, despite her advanced age and frail
condition, are enough factual bases to consider the usufruct as
having been terminated.
By express provision of law, respondents, as usufructuary, do not
have the right to reimbursement for the improvements they may
have introduced on the property. We quote Articles 579 and 580 of
the Civil Code:
Art. 579. The usufructuary may make on the property held in
usufruct such useful improvements or expenses for mere pleasure
as he may deem proper, provided he does not alter its form or
substance; but he shall have no right to be indemnified therefor. He
may, however, remove such improvements, should it be possible to
do so without damage to the property. (Emphasis supplied.)
Art. 580. The usufructuary may set off the improvements he may
have made on the property against any damage to the same.
Given the foregoing perspective, respondents will have to be
ordered to vacate the premises without any right of reimbursement.
If the rule on reimbursement or indemnity were otherwise, then the
usufructuary might, as an author pointed out, improve the owner
out of his property. 15 The respondents may, however, remove or
destroy the improvements they may have introduced thereon
without damaging the petitioner’s property.
ANASTACIA QUIMEN, petitioner, vs. COURT OF
APPEALS and YOLANDA Q.
OLIVEROS, respondents.
DECISION
BELLOSILLO,J.:
 IN EASEMENT OF RIGHT OF WAY that easement
where the way is shortest and will cause least prejudice shall
be chosen. However, if the two circumstances do not concur
in a single tenement, the way where damage will be least
shall be used even if not the shortest route. [1] 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 Soteros 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 Anastacias Lot No.
1448-B-1, while Lot No. 1448-B-6-B is behind the property of
Sotero, father of respondent Yolanda.
In February 1982 Yolanda purchased Lot No. 1448-B-
6-A from her uncle Antonio through her aunt Anastacia who
was then acting as his administratrix. According to Yolanda,
when petitioner offered her the property for sale she was
hesitant to buy as it had no access to a public road. But
Anastacia prevailed upon her to buy the lot with the
assurance that she would give her a right of way on her
adjoining property for P200.00 per square meter.
Thereafter, Yolanda constructed a house on the lot
she bought using as her passageway to the public highway a
portion of Anastacia s property. But when Yolanda finally
offered to pay for the use of the pathway Anastacia refused
to accept the payment. In fact she was thereafter barred by
Anastacia from passing through her property. [2]
In February 1986 Yolanda purchased the other lot of
Antonio Quimen, Lot No. 1448-B-6-B, located directly behind
the property of her parents who provided her a
pathway gratis et amore between their house, extending
about nineteen (19) meters from the lot of Yolanda behind
the sari-sari store of Sotero, and Anastacias perimeter
fence. The store is made of strong materials and occupies
the entire frontage of the lot measuring four (4) meters wide
and nine meters (9) long. Although the pathway leads to the
municipal road it is not adequate for ingress and egress. The
municipal road cannot be reached with facility because the
store itself obstructs the path so that one has to pass
through the back entrance and the facade of the store to
reach the road.
On 29 December 1987 Yolanda filed an action with the
proper court praying for a right of way through Anastacia s
property. An ocular inspection upon instruction of the
presiding judge was conducted by the branch clerk of
court. The report was that the proposed right of way was at
the extreme right of Anastacias property facing the public
highway, starting from the back of Soteros sari-sari
store and extending inward by one (1) meter to her property
and turning left for about five (5) meters to avoid the store of
Sotero in order to reach the municipal road [3]and the way
was unobstructed except for an avocado tree standing in the
middle.[4]
But on 5 September 1991 the trial court dismissed the
complaint for lack of cause of action, explaining that the right
of way through Soteros property was a straight path and to
allow a detour by cutting through Anastacias 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 Anastacias property.[5]
On appeal by respondent Yolanda, the Court of
Appeals reversed the lower court and held that she was
entitled to a right of way on petitioners property and that the
way proposed by Yolanda would cause the least damage
and detriment to the servient estate. [6] The appellate court
however did not award damages to private respondent as
petitioner did not act in bad faith in resisting the claim.
Petitioner now comes to us imputing ERROR to
respondent Court of Appeals: (a) in disregarding the
agreement of the parties; (b) in considering petitioners
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 Yolandas parents is more accessible to the
public road than to make a detour to her property and cut
down the avocado tree standing thereon.
Petitioner further argues that when Yolanda purchased
Lot No. 1448-B-6-B in 1986 the easement of right of way she
provided her (petitioner) was ipso jure extinguished as a
result of the merger of ownership of the dominant and the
servient estates in one person so that there was no longer
any compelling reason to provide private respondent with a
right of way as there are other surrounding lots suitable for
the purpose. Petitioner strongly maintains that the proposed
right of way is not the shortest access to the public road
because of the detour and that, moreover, she is likely to
suffer the most damage as she derives a net income of
P600.00 per year from the sale of the fruits of her avocado
tree, and considering that an avocado has an average life
span of seventy (70) years, she expects a substantial
earning from it.[7]
 But we find no cogent reason to disturb the ruling of
respondent appellate court granting a right of way to private
respondent through petitioners property. In fact, as between
petitioner Anastacia and respondent Yolanda their
agreement has already been rendered moot insofar as it
concerns the determination of the principal issue herein
presented. The voluntary easement in favor of private
respondent, which petitioner now denies but which the court
is inclined to believe, has in fact become a legal easement or
an easement by necessity constituted by law.[8]
As defined, an easement is a real right on anothers
property, corporeal and immovable, whereby the owner of
the latter must refrain from doing or allowing somebody else
to do or something to be done on his property, for the benefit
of another person or tenement.[9] It is jus in re
aliena, inseparable, indivisible and perpetual, unless
extinguished by causes provided by law. A right of way in
particular is a privilege constituted by covenant or granted by
law[10] to a person or class of persons to pass over anothers
property when his tenement is surrounded by realties
belonging to others without an adequate outlet to the public
highway. The owner of the dominant estate can demand a
right of way through the servient estate provided he
indemnifies the owner thereof for the beneficial use of his
property.[11]
The conditions sine 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. [12]
A cursory examination of the complaint of respondent
Yolanda for a right of way[13] readily shows that
[E]ven before the purchase of the said parcels of land the plaintiff
was reluctant to purchase the same for they are enclosed with
permanent improvements like a concrete fence and store and have
(sic) no egress leading to the road but because of the assurance of
the defendant that plaintiff will be provided one (1) meter wide and
five (5) meters long right of way in the sum of P200.00 per square
meter to be taken from Anastacias lot at the side of a concrete store
until plaintiff reach(es) her fathers land, plaintiff was induced to
buy the aforesaid parcels of land 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 plaintiffs predecessors-in-interest
from the very inception 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.[14]These facts are confirmed in the ocular
inspection report of the clerk of court, more so that the trial
court itself declared that [t]he said properties of Antonio
Quimen which were purchased by plaintiff Yolanda Quimen
Oliveros were totally isolated from the public highway and
there appears an imperative need for an easement of right
of way to the public highway.[15]
Petitioner finally insists that respondent court
erroneously concluded that the right of way proposed by
private respondent is the least onerous to the parties. We
cannot agree. Article 650 of the New Civil Code explicitly
states that the easement of right of way shall be established
at the point least prejudicial to the servient estate and,
insofar as consistent with this rule, where the distance from
the dominant estate to a public highway may be the
shortest. The criterion of least prejudice to the servient
estate must prevail over the criterion of shortest
distance although this is a matter ofjudicial
appreciation. While shortest distance may ordinarily
imply least prejudice, it is not always so as when there are
permanent structures obstructing the shortest
distance; while on the other hand, the longest distance may
be free of obstructions and the easiest or most convenient to
pass through. In other words, where the easement may be
established on any of several tenements surrounding the
dominant estate, the one where the way is shortest and will
cause the least damage should be chosen. However, as
elsewhere stated, if these two (2) circumstances do not
concur in a single tenement, the way which will cause the
least damage should be used, even if it will not be the
shortest.[16] This is the test.
In the trial court, petitioner openly admitted -
Q. You testified during your direct examination about this plan,
kindly go over this and please point to us in what portion of this
plan is the house or store of the father of the (plaintiff)?
A. This one, sir (witness pointed a certain portion located near the
proposed right of way).
xxx xxx xxx
Q. Now, you will agree with me 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.
xxx xxx xxx
Q. Just before your brother disposed that 1/2
portion of the lot in question, what right of
way does (sic) he use in reaching the
public road, kindly point to this sketch that
he is (sic) using in reaching the public
road?
A. In my property, sir.
Q. Now you will agree with me 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.[17]
The trial court found that Yolandas property was
situated at the back of her fathers 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
Soteros 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 petitioners 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 petitioners property, will cause
the least prejudice and/or damage as compared to the
suggested passage through the property of Yolanda s father
which would mean destroying the sari-sari store made of
strong materials. Absent any showing that these findings and
conclusion are devoid of factual support in the records, or
are so glaringly erroneous, this Court accepts and adopts
them. As between a right of way that would demolish a store
of strong materials to provide egress to a public highway,
and another right of way which although longer will only
require an avocado tree to be cut down, the second
alternative should be preferred. After all, it is not the main
function of this Court to analyze or weigh the evidence
presented all over again where the petition would
necessarily invite calibration of the whole evidence
considering primarily the credibility of witnesses, existence
and relevancy of specific surrounding circumstances, their
relation to each other, and the probabilities of the situation.
[18]
 In sum, this Court finds that the decision of respondent
appellate court is thoroughly backed up by law and the
evidence.
WHEREFORE, no reversible error having been
committed by respondent Court of Appeals, the petition is
DENIED and the decision subject of review is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Padilla (Chairman), Vitug,
Kapunan, and Hermosisima, Jr., JJ., concur.
FLORO V LLENADO
Facts:
Simeon Floro owned a piece of land known as “Floro Park
Subdivision” situated in Barangay Saluysoy, Meycauayan,
Bulacan. It has its own egress and ingress to and from the
McArthur Highway by means of its Road Lot 4 and the PNR
level crossing. Orlando A. Llenado, on the other hand, was
the registered owner of two parcels of land known as the
“Llenado Homes”. Prior to its purchase by Llenado from
Francisco de Castro, the land was known as the Emmanuel
Homes Subdivision, duly licensed and registered subdivision
in the name of Soledad Ortega. Bounded on the South by
Palanas Creek, which separates it from the Floro Park
subdivision, and on the west by ricelands belonging to
Marcial Ipapo, Montaos and Guevarra, the Llenado Homes
he must pay to Floro in the event the easement of right of
way be constituted. Also, third requisite has not been met.
does not have existing road or passage to McArthur
Highway. However, a proposed access road traversing the
idle Riceland of Marcial Ipapo has been specifically provided
in the subdivision plan of Emmanuel Homes, which was duly
approved by the defunct Human Settlement Regulatory
Commission.
Llenados were permitted by Floros to use Road Lots 4 and 5
of the Floro Park as a passage to and from McArthur
Highway. However, Floro later barricaded Road Lot 5 with a
pile of rocks, wooden posts and adobe stones, preventing its
use by Llenado. Llenado filed a complaint for easement of
Right of Way. During pendency of case, Orlando Llenado
died and was substituted by his wife, Wenifreda. Trial court
dismissed the case for lack of merit. CA set aside the
decision of trial court.
Issues:
1. ) Whether or not there is an easement of right of way?
Held: It is not disputed that Floro granted the Llenados
verbal permission to pass through Floro Park. No such
contract of easement of right of way was perfected. Citing
Dionisio v Ortiz, the use of Road Lot 4 and 5 by Llenados
during the month of March was by mere tolerance of Floro
pending the negotiation of the terms and conditions of the
right of way. Although such use was in anticipation of a
voluntary easement of right of way, no such contract as
validly entered into by reason of the failure of the parties to
agree on its terms and conditions. Thus, Llenados cannot
claim entitlement to a right of way through Floro Park on the
basis of voluntary easement.
2.) W/N they are entitled to compulsory servitude of right of
way?
Preconditions under Articles 649 and 650 of NCC:
a. That the dominant estate is surrounded by other
immovable and has no adequate outlet to a public highway
b. After payment of proper indemnity
c. That the isolation was not due to acts of proprietor of the
dominant estate
d. The right of way claimed is at the point least prejudicial to
the servient estate
The burden of proving these pre-conditions lies on the owner
of the dominant estate.
First precondition is not met since there is an existing right of
way over the Ipapo Property. Payment of proper indemnity
was also not proven since there the complaint by Llenado
did not contain fixing of amount that
Moreover, in order to justify the imposition of the servitude of
right of way, there must be a real, not a fictitious or artificial
necessity for it. Mere convenience for the dominant estate is
not what is required by lawas the basis for setting up a
compulsory easement. Even in the face of necessity, if it can
be satisfied without imposing the servitude, the same should
not be imposed. This easement can also be established foe
the benefit of tenement with an inadequate outlet, but not
when outlet is merely inconvenient.
QUIMEN V CA
Facts:
Petitioner Anastacia Quimen together with her brothers
Sotero, Sulpicio, Antonio and sister Rufina inherited a piece
of property in Pandi, Bulacan. They agreed to subdivide the
property equally among themselves with the share of
Anastacia, Sotero, Sulpicio and Rufina abutting the
municipal road. Anastacia’s was located at the extreme left,
bounded on the right by property of Sotero. Adjoining
Sotero’s were Rufina’s and Suplicio’s, but latter was
acquired by certain Catalina Santos. Behind lots of
Anastacia and Sotero is Antonio’s which was later divided
into two. One of these was purchased by Yolanda from her
uncle Antonio through her aunt Anastacia, who was then
acting as his administratix. At first Yolanda was hesitant to
buy the same because it had no access to public road but
Anastacia prevailed upon her to but the lot, with the
assurance that she would give her a right of way on her
adjoining property for P200 per square meter. Yolanda
constructed a house on the lot using as her passageway to
the public highway a portion of Anastacia’s. But when finally
Yolanda offered to pay for the use of pathway, Anastacia
refused to accept the payment and barred Yolanda from
passing through her property.
Yolanda later purchased other lot of Antonio located directly
behind the property of her parents who provided her a
pathway gratis et amore between their house, extending
about 19 m from Yolanda’s lot behind the sari-sari store of
Satero, and Anastacia’s perimeter fence. Although the
pathway leads to municipal road, it is not adequate for
ingress and egress because the store obstructs the pathway.
Yolanda filed an action for right of way. Trial court dismissed
the complaint but it was reversed by CA.
Issue: Which right of way should be granted?
Held: The conditions sine qua non for the grant of the
easement of right of way are:
a. That the dominant estate is surrounded by other
immovable and has no adequate outlet to a public highway
b. After payment of proper indemnity
c. That the isolation was not due to acts of proprietor of the
dominant estate
d. The right of way claimed is at the point least prejudicial to
the servient estate
Applying Art 650 of NCC, the proposed right of way of
Yolanda was the least prejudicial as compared to the
suggested passage through the property of Yolanda’s father
which would mean destroying the sari-sari store of strong
materials.
EUSEBIO FRANCISCO, petitioner, 
vs.
INTERMEDIATE APPELLATE COURT and CRESENCIO J.
RAMOS, respondents.
Arturo Agustines for petitioner.
Padilla Law Office for private respondent.
NARVASA, J.:
Contested in the appellate proceedings at bar is the
entitlement of Cresencio J. Ramos, owner of Lot 860-A of
the Malinta Estate, to an easement of right of way through
the land belonging to petitioner Eusebio Francisco, Lot 266
also of the same Malinta Estate. The Court of First Instance
of Bulacan declared Ramos to be so entitled, by judgment
rendered in Civil Case No. 66-V-73. That judgment was
affirmed by the Intermediate Appellate Court in CA-G.R. No.
60968-R, promulgated on September 7, 1982. Francisco
contends that both Courts are wrong, and asks this Court to
reverse them. About the basic facts there is no dispute.
Ramos' Lot 860-A used to be a part of Lot 860 of the Malinta
Estate. Lot 860 was owned by Cornelia and Frisca Dila, and
had a frontage along Parada Road measuring 51.90 meters.
Adjoining Lot 860 was Lot 226, owned by Eusebio
Francisco, as aforestated; it also had a frontage along
Parada Road of 62.10 meters.
On December 3,1947, the co-owners of Lot 860 (Cornelia
and Frisca Dila) executed a deed by which an undivided
one-third portion of the land was donated to a niece, Epifania
Dila, and another undivided one-third (1/3) portion to the
children of a deceased sister, Anacleta Dila, and the
remaining portion, also an undivided third, was declared to
pertain exclusively to and would be retained by Cornelia
Dila. 1 The new co-owners then had Lot 860 subdivided and
respectively allocated to themselves as follows: 2
Lot 860-A (2,204 sq. m.), to Cornelia
Dila;
Lot 860-B (5,291 sq. m.), to Epifana Dila
(the niece);
Lot 860-C (3,086 sq. m.), to Cornelia
Dila also; and
Lot 860-D (5,291 sq. m.), to the heirs of
Anacleta Dila the other niece).
After this, the co-owners signed a partition
agreement, 3 putting an end to their co-ownership and
assuming exclusive ownership and possession of their
respective individual shares in accordance with the
subdivision plan.
The former co-owners evidently overlooked the fact that, by
reason of the subdivision, Lot 860-B of Epifania Dila came to
include the entire frontage of what used to be Lot 860 along
Parada Road, and thus effectively isolated from said road
the other lots, i.e., Lots 860- A and 860-C of Cornelia Dila,
and Lot 860-D of the children of Anacleta Dila. 4
Anyway, Cornelia sold Lot 860-A (2,204 sq. m. to the sisters
Marcosa, Margarita, and Irinea Eugenio. 5 And in 1971, the
Eugenio Sisters sold the land to Cresencio J. Ramos. 6
Some months later, in March, 1972, after having set up a
piggery on his newly acquired property, Ramos had his
lawyer write to Eusebio Francisco — owner, as above
mentioned, of the adjoining lot, Lot 266- to ask for a right of
way through the latter's land. Negotiations thereafter had
however failed to bring about a satisfactory arrangement.
Francisco's proposal for an exchange of land at the rate of
one (1) square meter from him to three (3) square meters
from Ramos, as was supposedly the custom in the locality,
was unacceptable to Ramos. 7
Later that year, 1972, Ramos succeeded, through the
intercession of Councilor Tongco of Valenzuela, in obtaining
a three-meter wide passageway through Lot 860-B of
Epifania Dila . 8 Yet in August, 1973, he inexplicably put up a
ten-foot high concrete wall on his lot, this was in August,
1973, and thereby closed the very right of way granted to
him across Lot 860-B. It seems that what he wished was to
have a right of passage precisely through Francisco's land,
considering this to be more convenient to him, and he did
not bother to keep quiet about his determination to bring suit,
if necessary, to get what he wanted. 9
Francisco learned of Ramos' intention and reacted by
replacing the barbed-wire fence on his lot along Parada
Road with a stone wall, also in August, 1973. 10 Shortly
thereafter, Francisco was served with summons and a copy
of the complaint in Civil Case No. 66-V-73 of the Court of
First Instance of Bulacan, instituted by Ramos, 11 as well as
a writ of preliminary mandatory injunction directing him to
remove his stone fence and keep his lot open for Ramos'
use .12
Francisco moved to dissolve the mandatory injunction. The
Court appointed a commissioner who conducted an ocular
inspection of the lots in question, Lots 860-A, 860-B and 266
and submitted a report of his findings. On the basis of the
commissioner's report, the Court issued another Order on
September 10, 1973, 13 granting Ramos —
. . . a temporary right of way over
defendant's property hereby ordering
defendant to immediately remove all
obstructions existing on points 2 and 4
of Annex A [of the Commissioner's
Report] up to the second post of the
stone wall along points 2 and 3 in order
that plaintiff may have a free access to
his property, upon plaintiffs filing a bond
in the sum of P2,000.00 without in any
way determining by this grant the issue
or issues involved in this case, but
merely as a measure of temporary relief
in the exercise of its power of equity.
Ramos posted the required bond, and Court issued the writ
of preliminary injunction. 14
After filing his answer with counterclaim, 15 Francisco once
more moved for the setting aside of the injunctive writs on
the ground that they had been issued in excess of the
Court's jurisdiction since they did more than merely preserve
the status quo, and were based on the commissioner's
report which was not only inaccurate and inconclusive but
had been adopted by the Court without hearing or according
him an opportunity to comment on or object to it. 16 By Order
dated November 19, 1973, the Court dissolved the
injunctions, setting aside its Orders of August 31, and
September 10, 1973. 17
Six (6) days later, however, the Court handed down its
verdict, adversely to Francisco. The dispositive part thereof
reads as follows:
In view of the foregoing premises: (1)
the road right of way prayed for by
plaintiff over defendant's land, Exhibit
'A- l' is hereby granted, plaintiff shall pay
defendant the amount of Twenty Pesos
(P20.00) per square meter as indemnity
or a total of Three Hundred Fifty Pesos
(P350.00) considering that the area of
Exhibit 'A-l' is 17.5 square meters; (2)
the writ for a permanent mandatory
injunction is likewise granted and
defendant is consequently directed to
remove immediately the adobe fence
along the road right of way as fixed by
this Court and to refrain from obstructing
said passage in any manner what ever,
upon payment by the plaintiff of the sum
of Three Hundred Fifty Pesos to the
defendant, through this court; (3) upon
the defendant's failure to do so, the
Sheriff is hereby directed to immediately
remove said obstructions at defendant's
expenses; (4) let a copy of the decision
be served upon the Register of Deeds of
Bulacan for proper annotation of the
road right of way on defendant's title,
Transfer Certificate of Title over Lot 266
upon finality of this decision.
Defendant's counterclaim for moral and
exemplary damages and attorney's fees
are dismissed for lack of merit.
Francisco appealed to the Court of Appeals. 18 In its own
decision promulgated on September 7, 1982, the latter
affirmed the Trial Court's judgment, 19 and later denied
Francisco's motion for reconsideration. 20 Francisco then
appealed to this Court. Francisco submits that — 21
1) Ramos' complaint, containing no
averment that demand for the easement
of right of 28 way had been made only
after payment of proper indemnity in
accordance with Article 649 of the Civil
 Code, was dismissible for failure to state
a cause of action;
2) It was error to brush aside said
statutory pre-condition in Article 649 as
of "no consequence" or "absurd" in light
of "the principle of substantial
performance" in Article 1234 of the Civil
Code;
3) In view of the last paragraph of said
Article 649, Francisco's Lot 266 may not
be considered a servient estate subject
to a compulsory easement of right of
way in favor of Ramos' Lot 860-A;
4) Courts are not empowered to
establish judicial easements; and
5) Ramos was not entitled to a writ of
mandatory injunction against Francisco.
In Bacolod-Murcia Milling Co., Inc. v. Capital Subdivision,
Inc., 22 this Court held that a compulsory easement of way
cannot be obtained without the presence of four (4)
requisites provided for in Articles 649 and 650 of the Civil
Code, which the owner of the dominant tenement must
establish, to wit:
(1) That the dominant estate is
surrounded by other immovables and
has no adequate outlet to a public
highway (Art. 649, par. 1);
(2) After payment of proper indemnity
(Art. 649, par. 1, end);
(3) That the isolation was not due to
acts of the proprietor of the dominant
estate; and
(4) That the right of way claimed is at
the point least prejudicial to the servient
estate; and insofar as consistent with
this rule, where the distance from the
dominant estate to a public highway
may be the shortest. (Art. 650).
What clearly the appealed Decision overlooked or failed to
accord the significance due it is the fact already adverted to
and which has never been disputed that respondent Ramos,
having already been granted access to the public road
(Parada Road) through the other adjoining Lot 860-B owned
by Epifania Dila — and this, at the time he was negotiating
with petitioner for the similar easement over the latter's Lot
266 that he now claims — inexplicably gave up that right of
access by walling off his property from the passageway thus
established. The evidence, also uncontradicted, is that said
passageway was 2.76 meters wide, or wide enough to
accommodate a truck. The surveyor who at the instance of
petitioner made a survey of the premises on September 13,
1973, shortly after Ramos had filed his complaint, verified
the existence of said passageway from the presence of tire
marks found on the scene and indicated on the sketch plan
he prepared the path that it took from said respondent's Lot
860-A through Lot 860-B to Parada Road. 23 That there was
such a passageway was also confirmed by another witness,
Parada Barrio Captain Fausto Francisco, one of those who
had earlier tried to bring petitioner and respondent to an
agreement about the proposed right of way through the
property of the former. This witness declared, as already
stated, that after the negotiations had been stalled by the
failure of the parties to agree on the terms of a proposed
land exchange that would have given Ramos access to
Parada Road, said respondent had been able to obtain right
of passage to the same public road over a 3-meter wide
portion of Lot 860-B owned by Epifania Dila through the
intercession of Councilor Tongco of Valenzuela . 24 The
presence of the tire marks indicating that the portion of Lot
860-B where they were found had been used as a
passageway was also brought to the attention of the Trial
Court at the ocular inspection conducted, with the parties
present or duly represented, on May 17, 1974. 25
The evidence is, therefore, persuasively to the effect that the
private respondent had been granted an adequate access to
the public highway (Parada Road) through the adjacent
estate of Epifania Dila even as he was trying to negotiate a
satisfactory agreement with petitioner Francisco for another
passageway through the latter's property. If at the time he
filed suit against the petitioner, such access (through the
property of Epifania Dila) could no longer be used, it was
because he himself had closed it off by erecting a stone wall
on his lot at the point where the passageway began for no
reason to which the record can attest except to demonstrate
the isolation of his property alleged in his complaint. But the
law makes it amply clear that an owner cannot, as
respondent has done, by his own act isolate his property
from a public highway and then claim an easement of way
through an adjacent estate. The third of the cited requisites:
that the claimant of a right of way has not himself procured
the isolation of his property had not been met indeed the
respondent had actually brought about the contrary condition
and thereby vitiated his claim to such an easement. It will not
do to assert that use of the passageway through Lot 860-B
was dffficult or inconvenient, the evidence being to the
contrary and that it was wide enough to be traversable by
even a truck, and also because it has been held that mere
inconvenience attending the use of an existing right of way
does not justify a claim for a similar easement in an
alternative location.
... the petitioner contends that since the
respondent company constructed the
concrete wall blocking his ingress and
egress via the Gatchalian Avenue, the
nearest, most convenient and adequate
road to and from a public highway, he
has been constrained to use as his
temporary' way the adjoining lots
belonging to different persons. Said way
is allegedly 'bumpy and impassable
especially during rainy seasons because
of flood waters, mud and tall 'talahib'
grasses thereon.' Moreover, according
to the petitioner, the road right of way
which the private respondents referred
to as the petitioner's alternative right of
way to Sucat Road is not an existing
road but has remained a proposed road
as indicated in the subdivision plan of
the Sabrina Rodriguez Lombos
Subdivision. 26
 The petitioner's position is not more. Assuming that such an
impressed with merit. ... As borne out by expression can be stretched into a
the records of the case, there is a road manifestation that the Central is willing
right of way provided by the Sabrina to pay such compensation as may be
Rodriguez Lombos Subdivision ultimately fixed by the Court, it still is not
indicated as Lot 4133-G-12 in its prepayment required by Article 649 of
subdivision plan for the buyers of its the Civil Code;...
lots. The fact that said lot is still
undeveloped and causes inconvenience
reservations may with reason be held about interpreting
to the petitioner when he uses it to
Article 649 to require advance payment of indemnity as a
reach the public highway does not bring
condition precedent to the filing of an action for a compulsory
him within the ambit of the legal
right of way. The appealed Decision of the Court of Appeals
requisite (of lack of adequate
observes that:
outlet). . . .To allow the petitioner access
to Sucat Road through Gatchalian
Avenue inspite of a road right of way ... It is absurd to say that even before
provided by the petitioner's subdivision the complaint is filed there must be a
for its buyers simply because Gatchalian prior payment of the indemnity for We
Avenue allows petitioner a much greater do not know as yet how much such
ease in going to and from the main indemnity would be. If both parties had
thoroughfare is to completely ignore previously agreed on such indemnity, no
what jurisprudence has consistently suit would be essential. 28
maintained through the years regarding
an easement of a right of way, that
There would, indeed, be some point in looking askance at a
'mere convenience for the dominant
reading of the law which would impute to it a strict
estate is not enough to serve as its
requirement to pay "proper indemnity" in advance of a suit
basis. To justify the imposition of this
the purpose of which, in addition to creating an easement, is
servitude, there must be a real, not
precisely to fix the amount of the indemnity to be paid
fictitious or artificial, necessity for it. 27
therefor.

On the authority of the Bacolod-Murcia ruling already

The question, however, is better left for consideration in a
referred to that all the four requisites prescribed in Articles
more appropriate setting where a ruling would not constitute
649 and 650 must be established in order to warrant the
the mere dictum that it might be perceived to be were it to be
creation of a legal or compulsory easement of way, what has
made here.
already been stated as to the absence of one of those
requisites is, without going any further, already decisive of
this appeal and impels a reversal of the appealed Decision, WHEREFORE, the appealed Decision of the Court of
which has clearly ignored or failed to correctly appreciate the Appeals is REVERSED and SET ASIDE. The complaint in
import of crucial facts dictating a disposition contrary to that Civil Case No. 66-V-73 of the Court of First Instance of
made therein. Bulacan is DISMISSED, the private respondent declared
without right to the easement sued for, and the writ of
preliminary mandatory injunction issued in said case is
Whether the Court of Appeals also erred, as the petitioner
LIFTED. Costs against the private respondent.
would put it, in not dismissing the action for want of
averment or showing that proper indemnity had been pre-
paid for the right of way demanded is not now inquired into. SO ORDERED.
While such a proposition would appear to be supported by
the Bacolod-Murcia ruling which in part states that:

... The Central's original complaint only

makes reference to a reasonable
compensation in paragraph 14 and no

177 SCRA 527

FRANCISCO V. IAC 177 SCRA 527- COMPULSORY

FACTS:

RIGHT OF WAY The Malinta estate was co-owned by two sisters who later

donated 1/3 of the property to their niece, 1/3 to the heirs

Civil Law Jurisprudence
of their deceased sister, and 1/3 was solely conveyed to

FRANSISCO V. IAC Cornelia. Adjoining this estate was property of Fransisco,

fronting the Paradas road. The new co-owners then

 partitioned the lot. All the frontage went to the niece.
Cornelia subsequently sold her property to Eugenio sisters
who then sold it to Ramos. Ramos wanted a right of way
through Fransisco’s property.
G.R. No. 75723 June 2, 1995
SIMEON FLORO, petitioner, 
vs.
ORLANDO A. LLENADO (Deceased), substituted by his
wife WENIFREDA T. LLENADO, in her own behalf as
Administratrix of the Estate of Orlando A. Llenado and
as Legal Guardian of Minors Ma. Bexina, Avelino and
Antonio, all surnamed Llenado, and the COURT OF
APPEALS, respondents.
ROMEO, J.:
The instant petition for review on certiorari presents two (2)
issues for resolution, namely: (1) whether or not a valid
contract of easement of right of way exists when the owner
of one estate voluntarily allows the owner of an adjacent
estate passage through his property for a limited time,
without compensation; and, (2) whether or not an
owner/developer of a subdivision can demand a compulsory
easement of right of way over the existing roads of an
adjacent subdivision instead of developing his subdivision's
proposed access road as provided in his duly approved
subdivision plan.
Simeon Floro is the owner of a piece of land known as the
Floro Park Subdivision situated in Barangay Saluysoy,
Meycauayan, Bulacan. 1 The subdivision has its own egress
and ingress to and from the MacArthur Highway by means of
its Road Lot 4 and the PNR level crossing.
Orlando A. Llenado, 2 on the other hand, was the registered
owner of two (2) parcels of land, with a total area of 34,573
sq. meters, more or less, 3 known as the Llenado Homes
Subdivision ("Llenado Homes," for brevity). Prior to its
purchase by Llenado from the owner Francisco de Castro,
the land was known as the Emmanuel Homes Subdivision, a
duly licensed and registered housing subdivision in the name
of Soledad Ortega. 4 Bounded on the South by the 5 to 6
meter-wide Palanas Creek, 5 which separates it from the
Floro Park Subdivision, and on the west by ricelands
belonging to Marcial Ipapo, Montaos and Guevarra, the
Llenado Homes does not have any existing road or passage
to the MacArthur Highway. However, a proposed access
road traversing the idle riceland of Marcial Ipapo has been
specifically provided in the subdivision plan of the Emmanuel
Homes Subdivision, which was duly approved by the defunct
Human Settlement Regulatory Commission (now Housing
and Land Use Regulatory Board). 6
HELD:
If the enclosure or isolation was due to the proprietor’s own
acts, then there couldn’t be any compulsory right of way.
Sometime in February, 1983, the Llenados sought, and were
granted, permission by the Floros to use Road Lots 4 and 5
of the Floro Park Subdivision as passageway to and from
MacArthur Highway. On April 7, 1983, however, Floro
barricaded Road Lot 5 with a pile of rocks, wooden posts
and adobe stones, thereby preventing its use by the
Llenados.
Their request for the reopening of Road Lot 5 having been
denied, Orlando Llenado instituted on April 13, 1983, a
complaint before the Regional Trial Court (RTC) of Malolos,
Bulacan, against Simeon Floro for Easement of Right of Way
with Prayer for the Issuance of a Writ of Preliminary
Mandatory Injunction and Damages. The complaint was
docketed as Civil Case No. 6834-M and raffled off to Branch
XIX, presided over by Hon. Judge Camilo Montesa.
After hearing and ocular inspection, the trial court, in an
order dated July 15, 1983, 7 granted the prayer for the
issuance of a writ of preliminary mandatory injunction upon
the filing of a bond by Llenado in the amount of one hundred
thousand pesos (P100,000.00). Floro was ordered:
1. To open the road by removing the
rocks and wooden posts and/or to
remove the barricade on the subject
road of the Floro Park Subdivision and
enjoining him and any person or
persons under him from doing or
performing any act or acts which will
prevent (LLENADO) or his agents or
any person acting under (LLENADO's)
instructions from passing through the
subject subdivision road to get into and
to get out of the aforementioned
properties of (LLENADO) until further
order from this Court.
Floro moved for reconsideration but was denied the relief
sought. 8 He then filed with the Court of Appeals a petition
for certiorari and prohibition with petition for a writ of
preliminary injunction and restraining order, but later on,
moved to withdraw his petition. His motion for withdrawal
was granted by the appellate court in its Resolution dated
March 30, 1984 which declared the case closed and
terminated. 9
In the meantime, Orlando Llenado died and was substituted
by his wife Wenifreda T. Llenado as administratrix of his
estate and its legal guardian of their four (4) minor
children. 10 Trial on the merits of the case which was
suspended pending resolution of the petition before the
Court of Appeals, resumed.
On October 16, 1984, the trial court rendered judgment
dismissing the case and lifting the writ of preliminary
mandatory injunction previously issued. The dispositive
portion of the decision 11 reads:
 WHEREFORE, judgment is hereby
rendered dismissing the instant
complaint for lack of merit, and the writ
of preliminary mandatory injunction
issued in favor of the plaintiff is hereby
ordered dissolved and/or lifted. On the
counterclaim posed by defendant, the
plaintiff is hereby ordered to pay
defendant the following amounts:
a. P30,000.00 as
actual damages
suffered by
defendant;
b. P77,500.00 as
compensation for
the use of
defendant's
property;
c. P15,000.00 as
attorney's fees; and,
d. To pay the costs
of the suit.
SO ORDERED.
On appeal by Llenado, the appellate court set aside the
decision of the trial court in a decision 12 promulgated on
February 11, 1986, the dispositive portion of which reads as
follows:
WHEREFORE, premises considered,
the decision appealed from is hereby
SET ASIDE and another one entered:
(1) Granting the establishment of a legal
or compulsory easement of right of way
passing through Road Lots 4 and 5 of
defendant's Floro Park Subdivision in
favor of plaintiff's Llenado Homes
Subdivision;
(2) Ordering defendant to remove
immediately all of the obstructions, such
as walls, rocks and posts with which he
had barricaded Road Lot 5 for the
purpose of preventing plaintiff from
using defendant's subdivision as
passage way to the MacArthur Highway;
(3) Ordering defendant to pay to plaintiff,
upon finality of this decision, the
following:
(a) P60,000.00 —
temperate or
moderate damages
(b) P100,000.00 —
moral damages;
and
(c) P30,000.00 —
attorney's fees;
(4) Ordering plaintiff to pay to defendant
the amount of P60,000.00 within ten
(10) days from the date of finality of this
decision as indemnity for the right of
way pursuant to the mandate of Article
649 of the Civil Code; and
(5) Ordering defendant to pay the costs.
The liability of the defendant under No.
(3) (supra) shall be legally compensated
by the liability of the plaintiff under No.
(4) (supra) automatically to the extent
that the amount of one is covered by the
amount of the other.
SO ORDERED.
On August 14, 1986, the appellate court in separate
resolutions denied Floro's motion for reconsideration and
supplementary motion 13 and granted Llenado's motion for
partial execution pending appeal. 14 The latter resolution
provided in its dispositive portion, thus:
WHEREFORE, upon the posting by
plaintiff-appellant of a bond in the
amount of ONE HUNDRED
THOUSAND PESOS (P100,000.00)
approved by this Court, let a writ of
partial execution pending appeal be
issued ordering the defendant-appellee
to remove immediately all of the
obstructions, including all walls, rocks,
posts, and other materials with which he
has barricaded Road Lot 5, for the
purpose of preventing plaintiff-appellant
from using defendant's subdivision as
passage way to the MacArthur Highway.
Said Order shall include Road Lot 4 so
that plaintiff-appellant will have free
access to MacArthur Highway.
SO ORDERED.
The writ of partial execution pending appeal was issued on
October 2, 1986 after the instant Petition had been filed and
after the Court had resolved on September 15, 1986 to
require Llenado to comment thereon. On motion of Floro, the
Court issued a restraining order on October 29,
1986, 15 enjoining the appellate court from carrying out its
writ of partial execution pending appeal. Subsequently, the
instant petition was given due course. 16
In a petition to review a decision of the Court of Appeals
under Rule 45 of the Rules of Court, the jurisdiction of the
court is ordinarily confined to reviewing errors of law
committed by the Court of Appeals, its findings of fact being
conclusive on the Court. 17 There are, however, exceptional
circumstances that would compel the Court to review the
findings of fact of the Court of Appeals, summarized
in Remalante v. Tibe 18 and subsequent cases 19 as follows:
(1) when the inference made is manifestly mistaken, absurd
or impossible; (2) when there is a grave abuse of discretion; parties as to the consideration, among
(3) when the finding is grounded entirely on speculations, others, no contract of easement of right
surmises or conjectures; (4) when the judgment of the Court of way has been validly entered into by
of Appeals is based on misapprehension of facts; (5) when the petitioners and QCIEA. Thus the
the findings of fact are conflicting; (6) when the Court of private respondents' claim of an
Appeals in making its findings went beyond the issues of the easement of right of way over Howmart
case and the same is contrary to the admissions of both Road has no legal or factual basis.
appellant and appellee; (7) when the findings of the Court of
Appeals are contrary to those of the trial court; (8) when the
As in the Dionisio case, the use of Road Lots 4 and 5 by the
findings of fact are conclusions without citation of specific
Llenados during the month of March was by mere tolerance
evidence on which they are based; (9) when the Court of
of Floro pending the negotiation of the terms and conditions
Appeals manifestly overlooked certain relevant facts not
of the right of way. This is evident from the testimony of
disputed by the parties and which, if properly considered,
Wenifreda that "they said to us to go on while they are
would justify a different conclusion; and, (10) when the
preparing for the papers" and that "we can use that for a
findings of fact of the Court of Appeals are premised on the
while, while they were making for the papers." 29 Although
absence of evidence and are contradicted by the evidence
such use was in anticipation of a voluntary easement of right
on record.
of way, no such contract was validly entered into by reason
of the failure of the parties to agree on its terms and
The findings and conclusions of the Court of Appeals, being conditions. Thus, private respondents Llenados cannot claim
contrary to the findings and conclusions of the trial court, the entitlement to a right of way through the Floro Park
instant case falls within the exception. Thus, the Court may Subdivision on the basis of a voluntary easement.
scrutinize the evidence on the record to bring to light the real
facts of the case. 20
Having ruled that no voluntary easement of right of way had
been established in favor of private respondents Llenados,
It is not disputed that sometime in February 1983, Floro we now determine whether or not they are entitled to a
granted the Llenados verbal permission to pass through the compulsory easement of right of way.
Floro Park Subdivision in going to and from the MacArthur
Highway. Whether such permission, as claimed by Floro,
For the Llenados to be entitled to a compulsory servitude of
was for the month of March only, without compensation and
right of way under the Civil Code, the preconditions provided
as a neighborly gesture for the purpose merely of enabling
under Articles 649 and 650 thereof must be established.
the Llenados to install stone monuments (mojones) on their
These preconditions are: (1) that the dominant estate is
land, 21 or was in relation to the easement of right of way
surrounded by other immovables and has no adequate outlet
granted in their favor, as insisted by the Llenados, 22 the fact
to a public highway (Art. 649, par. 1); (2) after payment of
remains that no such contract of easement of right of way
proper indemnity (Art. 649, par. 1); (3) that the isolation was
was actually perfected between Floro and Llenado. Both
not due to acts of the proprietor of the dominant estate (Art.
Orlando 23 and Wenifreda Llenado 24testified that the
649, last par.); and, (4) that the right of way claimed is at the
conditions of the easement of right of way were still to be
point least prejudicial to the servient estate; and insofar as
drawn up by Floro's lawyer. Thus, no compensation was
consistent with this rule, where the distance from the
agreed upon, and none was paid, for the passage through
dominant estate to a public highway may be the shortest
Floro's property during the month of March. 25
(Art. 650). 30

However, when Wenifreda saw Floro in the evening of April

The burden of proving the existence of the prerequisites to
7, 1983 to negotiate for the reopening of Road Lot 5 and
validly claim a compulsory right of way lies on the owner of
Floro laid down his
the dominant estate. 31 We find that private respondents
conditions 26 for the requested reopening and presumably for
have failed in this regard.
the requested easement of right of way, Orlando rejected
said conditions for being onerous. 27
Significantly, when Orlando Llenado filed the complaint for
28 legal easement under Articles 649 and 650 of the Civil Code,
In Dionisio v. Ortiz,   where therein private respondents
he focused his argument on the absence of any road, other
claimed to have every right to use Howmart Road as
than the closed road of the Floro Park Subdivision, as his
passageway to EDSA by reason of a standing oral contract
means of ingress and egress to and from his property.
of easement of right of way with therein petitioner, so that
However, he omitted to state that there is a proposed access
the latter did not have the right to put a barricade in front of
road through the Ipapo property.
private respondents' gate and to stop them from using said
gate as passageway to Howmart Road, the Court said:
Danilo Ravello, an engineer employed as Project Officer of
the Human Settlement Regulatory Commission (HSRC)
There is no question that a right of way
since 1981, testified that his duties consisted in evaluating
was granted in favor of the private
and processing subdivision plans and making the proper
respondents over Howmart Road but
recommendation for their approval or disapproval. The
the records disclose that such right of
application of Soledad Ortega for the Emmanuel Homes
way expired in December 1988. The
Subdivision, 32 appearing on page 120 of the records of the
continued use of the easement enjoyed
HSRC, had the following attachments: (1) Sketch Plan of the
by QCIEA including the private
property containing an area of 34,973 sq. m.; 33 (2) Waterline
respondents is by the mere tolerance of
Layout
the owner pending the renegotiation of
Plan; 34 (3) Vicinity Plan; 35 (4) Road Plan Layout; 36 and (5)
the terms and conditions of said right of
Consolidation Subdivision Plan. 37 According to Ravello, as
way. . . . Absent an agreement of the
per Plans Exhs. "10-A" and "10-C", Road Lot 3 of the
Emmanuel Homes Subdivision starts and ends with adjacent
properties; on one end, the property owned by Mariano
Monadero and at the other, the property owned by a certain
Ventura Tan Mariano. As per Plans, the access road to the
subdivision should have come from the MacArthur Highway
through the Ipapo property. 38 Having found on ocular
inspection that the access road indicated in the Plan did not
actually exist, the HSRC required applicant Soledad Ortega
to submit a written right of way clearance from Ipapo, which
she did and on the basis of which, her application on behalf
of the Emmanuel Homes Subdivision was approved. 39
When Orlando Llenado acquired the subject property, he
adopted the subdivision plans of Emmanuel Homes and
renamed it as the Llenado Homes Subdivision. Accordingly,
he applied for the issuance of a new Development Permit
and License to Sell in his name as the new owner of the
subdivision. Subsequently, the corresponding license to sell
and development permit were issued. As shown by the
Consolidation Subdivision Plan 40 submitted by Orlando
Llenado, the names Soledad Ortega/Emmanuel Homes
Subdivision were merely crossed out and, in lieu thereof, the
names Orlando Llenado/Llenado Homes Subdivision were
written. In said subdivision plan which was duly approved by
the HSRC, the Ipapo Access Road was retained.
On July 1, 1983, during the pendency of Civil Case No.
6834-M, Orlando Llenado filed with the HSRC an application
for the amendment of the original Consolidation Subdivision
Plan of the Llenado Homes
Subdivision. 41 The proposed amendments, as indicated in
Exh. "11-A", 42 were: (1) the conversion of Lot 14 of Block 6
into a road lot, designed to connect with Road Lot 5 of the
Floro Homes Subdivision; and, (2) the closing of both ends
of Road Lot 3, the portion leading to the Ventura Tan
Mariano property and the portion leading to the Ipapo right of
way (Adriano Monadero property), to be converted into
saleable residential lots. The first proposed alteration, the
conversion of Lot 14, Block 6 into a road lot was approved
on March 20,
1984. 43 The access road of the Llenado Homes Subdivision,
however, remained in the Subdivision Plan to be through the
Ipapo property, as approved by the HSRC.
On appeal to the court of Appeals, private respondents
Llenado submitted a letter of Marcial Ipapo dated July 3,
1985 addressed to the
HSRC, 45 informing the latter that he did not give a road right
of way over his property in favor of Soledad Ortega, the
developer of Emmanuel Homes Subdivision. This letter
seems to be an aftermath of the testimony of Engr. Ravello
that the notarized affidavit of Ipapo submitted by Soledad
Ortega to the HSRC could not be located in the records of
the Commission. 46 This new matter, however, is
inadmissible in evidence, not having been authenticated in
accordance with Section 20, Rule 132 of the Rules of Court.
It was, therefore, erroneous on the part of the Court of
Appeals to consider this piece of evidence in its Resolution
For The Motion For Reconsideration dated August 14,
1986. 47
There being an existing right of way over the Ipapo property,
the first requirement for a grant of a compulsory easement of
right of way over the Floro Park Subdivision has not been
met.
In Talisay-Silay Milling Co. v. Court of First Instance of
Negros Occidental, 48 the court explained what is meant by
payment or prepayment of the required indemnity under
Article 649 of the Civil Code, as follows:
. . . Prepayment, as we used the term
means the delivery of the proper
indemnity required by law for the
damage that might be incurred by the
servient estate in the event the legal
easement is constituted. The fact that a
voluntary agreement upon the extent of
compensation cannot be reached by the
parties involved, is not an impediment to
the establishment of such easement.
Precisely, the action of the dominant
estate against the servient estate should
include a prayer for the fixing of the
amount which may be due from the
former to the latter.

In the case at bench, no proof was presented by private

When asked by the court as to the policy of the HSRC
respondent Llenado that he complied with this requirement.
regarding the approval of a subdivision plan in connection
The complaint for easement of right of way filed by him in the
with the right of way issue, Engr. Ravello responded that as
lower court did not contain a prayer for the fixing of the
a prerequisite for approval, the subdivision must have an
amount that he must pay Floro in the event that the
access road. It was not necessary that the access road be a
easement of right of way be constituted. Thus, the existence
paved road. A dirt road was sufficient provided that the
of the second requisite has likewise not been established.
owner of the lot used as access road gives his consent and
the owner/developer/applicant of the proposed subdivision
develops the proposed access road, 44 as approved by the There can be no denying that the isolation of the Llenado
HSRC, in compliance with Section 29 of Presidential Decree Homes Subdivision is the doing of its
No. 957 which states: owner/developer/applicant. It appears that the access road
indicated in the Plan of the Emmanuel Homes Subdivision
and the Llenado Homes Subdivision for which a right of way
Sec. 29. Right of way to Public Road. —
over the Ipapo property was procured, was merely for the
The owner or developer of a subdivision
sake of securing an approval of the proposed development
without access to any existing public
plan. There were no proofs of actual work having been done
road or street must secure a right of way
to construct a road, even just a dirt road, over the right of
to a public road or street and such right
way that would connect Road Lot 3 of the Llenado Homes
of way must be developed and
Subdivision to the MacArthur Highway. Private respondent
maintained according to the requirement
Llenado admitted that the Ipapo riceland was no longer
of the government authorities
being cultivated and there was already a fence made of
concerned.
adobe wall constructed on it. 49Indications are that it has
already been abandoned as a ricefield. There was no reason
for private respondent's failure to develop the right of way
except the inconvenience and expenses it would cost him. different persons, not to mention that said passage, as found
Hence, the third requisite has not been met. by the trial court, is impassable during the rainy season.
However, private respondent has no one to blame but
himself for not developing the proposed access road through
If the servitude requested by private respondent Llenado is
the Ipapo property.
allowed, other subdivision developers/owners would be
encouraged to hastily prepare a subdivision plan with
fictitious provisions for access roads merely for registration Worthy of mention is the trial court 's reason 55 for the denial
purposes. Thereafter, said developers could abandon their of the easement of right of way, thus:
duly approved plans and, for whatever reason, open up
another way through another property under the pretext that
. . . While it is true that the conversion of
they have inadequate outlets to a public road or highway.
said salable (sic) Lot 14, Block 6 into a
Furthermore, if such practice were tolerated, the very
Road Lot has been approved by the
purpose for which Presidential Decree No. 957 was enacted,
Human Settlement Regulatory
that is, to protect subdivision buyers from unscrupulous
Commission, such approval, however,
subdivision owners/developers who renege on their duties to
does not ipso facto connect Road Lot 5
develop their subdivisions in accordance with the duly
and 4 (Exh. C-1) of the Floro Park
approved subdivision plans, would be defeated.
Subdivision in the absence of consent
and/or approval of the owner of said
The Court takes cognizance of the fact that, instead of Floro Park Subdivision. . . . It should be
developing the proposed access road, private respondent emphasized that the end of Road Lot 3
Llenado applied for the conversion of Lot 14 of Block 6 into a of Llenado Homes Subdivision facing
road lot to connect it with Road Lot 5 of the Floro Park the MacArthur Highway as per approved
Subdivision, citing as reason therefor, that the amendment subdivision plan, subject of the
sought would create a "more adequate and practical proposed amendment, has been
passage" from the Llenado Homes Subdivision to the designated/specified as an access road
MacArthur National Highway and vice-versa. The directly leading to the MacArthur
"convenience" of using Road Lots 4 and 5 of the Floro Park Highway. It is the shortest route and the
Subdivision will not suffice, however, to justify the easement road alignment is direct and in a straight
in favor of private respondent. line perpendicular to the MacArthur
Highway. The disapproval, therefore, of
the closure and consequent conversion
In order to justify the imposition of the servitude of right of
of both ends of Road Lot 3 into
way, there must be a real, not a fictitious or artificial
residential lots, in effect, maintains Road
necessity for it. Mere convenience for the dominant estate is
Lot 3 as an access road of Llenado
not what is required by law as the basis for setting up a
Homes Subdivision to the main
compulsory easement. Even in the face of a necessity, if it
highway. There appears a semblance of
can be satisfied without imposing the servitude, the same
deception if the provision for (the)
should not be imposed. 50 This easement can also be
proposed access road in the approved
established for the benefit of a tenement with an inadequate
subdivision plan of Emmanuel Homes
outlet, but not when the outlet is merely inconvenient. Thus,
Subdivision, now Llenado Homes
when a person has already established an easement of this
Subdivision, would not be implemented
nature in favor of his tenement, he cannot demand another,
as it would appear that the same was
even if the first passage has defects which make passage
indicated in the plans merely for
impossible, if those defects can be eliminated by proper
purposes of approval of the subdivision
repairs. 51
but not actually to develop and avail of
the same was originally intended.
In the case of Ramos v. Gatchalian, 52 the Court denied
access to Sucat Road through Gatchalian Avenue in view of
It is also worthwhile to observe that on November
the fact that petitioner had a road right of way provided by
29, 1985, the then Minister of Public Works and
the Sobrina Rodriguez Lombos Subdivision indicated as Lot
Highways found the construction of the concrete
4133-G-12 in its subdivision plan for the buyers of its lots,
culvert across Palanas Creek illegal in
notwithstanding that said lot was still undeveloped and
contemplation of Presidential Decree No. 296,
inconvenient to petitioner. Even if Ramos, the petitioner
Letters of Instructions No. 19 and Presidential
therein, had "to pass through other lots belonging to other
Decree No. 1067 and ordered private respondent
owners, which are grassy and cogonal, as temporary
herein to remove or demolish the same, to be
ingress/egress with great inconvenience particularly due to
carried out by the Chief Civil Engineer, Bulacan
flood and mud," the Court did not allow the easement
Engineering District, at the expense of private
because it would run counter to existing jurisprudence that
respondent. 56
mere convenience for the dominant estate does not suffice
to serve as basis for the servitude. This ruling was reiterated
in Rivera v. Intermediate Appellate Court  53 and Costabella Failing to establish the existence of the prerequisites under
Corporation v. Court of Appeals. 54 Articles 649 and 650 of the Civil Code, private respondent
Llenado's bid for a compulsory easement of right of way over
Road Lots 4 and 5 of the Floro Park Subdivision must fail.
As borne out by the records of this case, despite the closure
of the subject road, construction work at Llenado Homes
Subdivision continued. The alternative route taken by private It appears, from the records that during the period from
respondent is admittedly inconvenient because he has to March 1983 until the closure of the subject roads on April 7,
traverse several ricelands and rice paddies belonging to 1983, private respondent was allowed to pass thru
petitioner's subdivision without any agreement on
compensation. During the same period, the subject roads
(Road Lots 4 and 5) were damaged due to the trucks and
heavy equipment passing thereon. Justice and equity
demand that petitioner be compensated for the said
damage. Hence, the lower court's decision awarding to
petitioner Thirty Thousand Pesos (P30,000.00) as actual and
compensatory damages should be affirmed.
Petitioner should likewise be indemnified for the use of his
property from July 15, 1983 (upon the reopening of the
subject road pursuant to the issuance of a writ of preliminary
mandatory injunction) until October 16, 1986 (when the writ
was lifted). In the absence of a specific provision applicable
in the case at bench as to the amount of proper indemnity,
the award of Sixty Thousand Pesos (P60,000.00) as
temperate or moderate damages pursuant to Articles 2224
and 2225 of the Civil Code 57 is considered proper and
reasonable. 58
As regards the claim for attorney's fees, considering that the
petitioner was compelled to file a petition for review
on certiorari before this Court, the amount of Thirty
Thousand Pesos (P30,000.00) is just and reasonable.
WHEREFORE, this appealed decision of the Court of
Appeals is SET ASIDE and the decision of the trial court, as
herein modified, is REINSTATED. Costs against private
respondent.
SO ORDERED.
G.R. No. 71393 June 28, 1989
MANILA ELECTRIC COMPANY, petitioner,  uninterrupted enjoyment of the easement for a period of 43
vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT
AND ELPIDIA, FELICIDAD, ISABEL, JOSE, EUGENIA,
AQUILINA, CONSUELO AND NATIVIDAD, all surnamed
LEYVA, and EDUARDA Vda. de LEYVA, respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioner.
Sumulong Law Offices for respondents.
MEDIALDEA, J.:
This is a petition to review by way of an appeal
by certiorari under Rule 45 of the Rules of Court the decision
of the Intermediate Appellate Court (now Court of Appeals),
dated April 12, 1985 (p. 36, Rollo) affirming in toto the
decision of the lower court, holding petitioner Manila Electric
Company ("MERALCO", for brevity) liable to private
respondents Elpidia, Felicidad, Isabel, Jose, Eugenia,
Aquilina, Consuelo and Natividad, all surnamed Leyva and
Eduarda Vda. de Leyva ("LEYVA's", for short) for damages
and compensation, and its Resolution, dated June 28, 1985,
denying petitioner's Motion for Reconsideration.
Based on the respondent court's decision the facts of the
case are as follows:
Nazario Crisostomo and Maria Escusar owned a parcel of
land with an area of 5,216.60 square meters, situated in
Cainta, Rizal at the corner of Ortigas Avenue and the road
leading to the town center of Cainta, covered by O.C.T.
4416, issued in 1931. Upon the death of both, the property
passed on to their daughter Bibiana Crisostomo Vda. de
Eladio Leyva, whose title was evidenced by TCT 8144.
Ultimately, the property was inherited by the LEYVAs who
were the children of Bibiana.
Prior to the issuance of OCT 4416, in the name of Nazario
Crisostomo between 1929 and 1930, MERALCO erected
thereon two transmission steel towers numbered 86 and 87,
later renumbered 76 (situated in Lot 1-K which is owned in
common by the LEYVAs and covered by TCT No. 297168)
and 77 (situated in Lot 2-V-6, which is also owned in-
common by the LEYVAs and covered by TCT No. 338524),
(par. 3, Partial Stipulation of Facts, quoted in CA Decision, p.
39, Rollo). In 1931, when O.C.T. 4416 was issued, no
encumbrance was annotated thereon.
On August 4, 1973, the LEYVAs sued MERALCO for
damages and sum of money with prayer for attorney's fees
and exemplary damages for its continued use of the
LEYVAs' property, claiming that the property became off
limits because of the high voltage of electric current running
in the cable lines.
In its answer, MERALCO claimed that it had acquired a
grant from the original owner of the land, Nazario
Crisostomo, for a perpetual easement of right of way for the
erection and operation of the transmission steel towers for
which it had paid Crisostomo the total sum of $12.40.
Moreover, even without the grant of perpetual easement, the
LEYVAs' complaint is deemed barred by prescription and
laches, because of MERALCO's open, continuous and
years.
MERALCO did not present any proof regarding the alleged
contract/grant with Nazario Crisostomo. Instead, it presented
a deposition of a certain Leland Gardner, a retired
MERALCO field auditor, who testified on the alleged
payment by MERALCO of the sum of $12.40 for the grant of
right of way, claiming thus, that in the absence of the original
document, Lelands deposition must be admitted as
secondary evidence of an original document, pursuant to
Sec. 4, Rule 130 of the Rules of Court.
The lower court decided in favor of the LEYVAs, as follows:
WHEREFORE, in view of the foregoing
premises, this Court rules against the
defendant MERALCO and finds
MERALCO LIABLE TO PLAINTIFFS as
follows:
l) the total sum of Two Hundred Thousand Pesos
(P200,000.00) as temperate damages suffered by the
plaintiffs for the entire period starting the year 1930 up to 10
August 1973.
2) the amount of Six Thousand Pesos (P6,000.00 ) as
annual of (sic) yearly compensation for loss of use and
deprivation of opportunity to profit and benefit from their
lands to be computed from August 11, 1973, the date of
filing of the complaint and computed for the same amount
annually thereafter;
3) the legal rate of interest of all the foregoing sums in
addition thereto computed from the date of this Decision;
4) the amount of Ten Thousand Pesos (P10,000.00) as and
for attorney's fees in favor of the plaintiffs;
5) the cost of suit;
In addition, the counterclaim filed by defendant MERALCO is
hereby ordered dismissed for lack of basis and merit;
Finally, there is no pronouncement as to exemplary
damages against any party.
SO ORDERED (pp. 36-37, Rollo).
MERALCO appealed, assigning the following errors:
I contents may be proved by a copy, or
THE TRIAL COURT ERRED IN NOT
HOLDING THAT APPELLANT
ACQUIRED BY TITLE AN EASEMENT
OF RIGHT OF WAY OVER
APPELLEES' PROPERTY.
II
ASSUMING ARGUENDO THAT
APPELLANT DID NOT ACQUIRE THE
EASEMENT BY TITLE, THE TRIAL
COURT ERRED IN NOT HOLDING
THAT APPELLANT ACQUIRED THE
EASEMENT BY PRESCRIPTION.
III
THE TRIAL COURT ERRED IN NOT
DECLARING THAT APPELLEES'
CAUSE OR CAUSES OF ACTION, IF
ANY, HAVE PRESCRIBED OR HAVE
BEEN BARRED BY LACHES.
IV
THE TRIAL COURT ERRED IN
AWARDING TEMPERATE DAMAGES
AND ANNUAL COMPENSATION TO
APPELLEES FOR PURPORTED LOSS
OF USE AND DEPRIVATION OF
OPPORTUNITY TO PROFIT AND
BENEFIT FROM THEIR LANDS.
V
THE TRIAL COURT ERRED IN
AWARDING ATTORNEYS FEES IN
FAVOR OF APPELLANT (pp. 37-
38, Rollo.)
Respondent court affirmed the decision in toto.
The only issue to be resolved in this case is whether or not
MERALCO acquired a perpetual easement of right of way,
over subject property.
Respondent court has ruled out the existence of a contract
to support MERALCO's claim and consequently,
its absence renders the inadmisibility of the Gardner
deposition as secondary evidence based on See. 4, Rule
130 which provides as follows:
SEC. 4. Secondary evidence when
original is lost or destroyed. — When
the original writing has been lost or
destroyed, or cannot be introduced in
court, upon proof of its execution and
loss or destruction, or unavailability, its
by a recital of its contents in some
authentic document, or by the
recollection of witnesses.
We agree with respondent court. It is a rule that "before a
party can be permitted to introduce secondary evidence of
the contents of a written instrument, satisfactory proof must
be made of the former existence of the instrument and this
necessarily involves proof of its proper execution or
genuineness". (V. Francisco, Revised Rules of Court, Ann.,
Vol. VII, p. 132, 1973 Ed.).
Respondent court quotes portions of the Gardner deposition
(pp. 40-42, Rollo):
8. Q: Were these grants of right of way public instruments or
merely simple statements?
A: In my judgment, they were not public documents, as it is
doubtful if they were recorded in any deeds. They were
written statements (p. 2, Answers to Cross-Interrogations).
xxx xxx xxx
81. Q: Does the defendant MERALCO still have copies of
the written grant of right of way executed by Nazario
Crisostomo?
A: No more.
82. Q: Why does not defendant Meralco have any more
copies?
A: All the copies of the grant were burned during the war.
83. Q: Where does Meralco usually place said copies?
A: In the files of the accounting department.
94. Q: What efforts, if any, did you exert to locate copies of
this particular grant of right of way?
A: We have exerted diligent and extensive effort. (pp. 9-10 of
the deposition)
xxx xxx xx
40. Q: From whom did you get the date for the entries made
in Exhibit 'I-D' ?
A: From the receipts signed by the owners of land granting
the right of way through the personnel of the right of way
department. Such receipts covered the money paid as
shown under the heading in the report 'amount' — all the
other items covered expenses of Meralco.
41. Q: When were these data given to you?
A: Sometime after the transaction to which they refer.
42. Q: Why were these datas (sic) given to you?
A: It was routine — being done at that time as part of the
standard operating procedure.
43. Q: What, if any, did you do with such data after you
received it?
A: The date (sic) was sent to Manila Office which was later
entered in this report. (p. 5 of his deposition)
52. Q: Why were such amounts paid to the persons listed in
Schedule 16?
A: The amounts were paid to these persons in consideration
for the grant of a right of way for the erection and
maintenance of the steel tower.
53. Q: Do you know who made payment to the persons
listed in Schedule 16?
A: The personnel of the right of way department.
54. Q: What participation, if any, did you have in making
payments to the persons listed in Schedule 16?
A: I did not personally make the payments. (pp. 6-7,
Deposition) (pp. 40-42, Rollo)
The foregoing testimony does not constitute evidence of a
contract much less its execution. To quote counsel for the
LEYVAs in his Comment (p. 93, Rollo):
In point of fact, there is no evidence that
Nazario Crisostomo even executed the
alleged grant. Leland Gardner, in his
deposition, never stated positively that
there was an alleged grant of right of
way by Nazario Crisostomo. What he
saw was the receipt supposedly signed
by Nazario Crisostomo for $7.50
allegedly paid for the erection of the two
towers, which receipt was secured by
"someone" from the right of way
department and filed by that "someone"
with the Manila office. Because of this
receipt which Leland Gardner saw in the
Manila Office, he assumed that Nazario
Crisostomo executed a grant of right of
way in favor of Meralco because
according to him it was standard
operating procedure to require the
execution of the grant of right of way
after payment of the consideration for
the erection of the towers. In other
words, Leland Gardner who was not
present when the receipt was signed by
someone purporting to be Nazario
Crisostomo, assumed that it was truly
the signature of Nazario Crisostomo,
and because of the said receipt he
further assumed that the real Nazario
Crisostomo executed a grant of right of
way in favor of Meralco. It is an
assumption based on another
assumption ....
Alternatively, MERALCO claims that in the absence of a
grant or contract to support its title to the grant, it
nonetheless acquired title by prescription because it had
been in possession of the property since 1930 or for over 43
years.
Again, respondent court correctly ruled that:
.... There being no evidence that the
original use of the property in question
by Meralco was based upon any
express grant of a fee to the said
property, or of an easement of right of
way nor that it began under the
assertion of a right on its part, the
presumption must be that the origin of
the use was the mere tolerance or
license of Nazalio Crisostomo. Thus,
in Cuaycong vs. Benedicto (37 Phil.
781, 792-793) it was held:
It is a fundamental principle of the law in this jurisdiction
concerning the possession of real property that such
possession is not affected by acts of a possessory character
which are 'merely tolerated' by the possessor, or which are
due to his license (Civil Code, Arts. 444 and 1942). This
principle is applicable not only with respect to the
prescription of the dominium as a whole, but to the
prescription of right in rem. In the case of Cortes vs. Palanca
Yu-Tibo (2 Phil. Rep., 24, 38) the Court said:
The provision of Article 1942 of the Civil Code to the effect
that acts which are merely tolerated produce no effect with
respect to possession is applicable as much to the
prescription of real rights as to the prescription of the fee, it
being a glaring and self-evident error to affirm the contrary,
as does the appellant in his motion papers. Possession is
the fundamental basis of the prescription. Without it no kind
of prescription is possible, not even the extraordinary.
Consequently, if acts of mere tolerance produce no effect
with respect to possession, as that article provides, in
conformity with Article 444 of the same Code, it is evident
that they can produce no effect with respect to prescription,
whether ordinary or extraordinary. This is true whether the
prescriptive acquisition be of a fee or of real rights, for the
same reason holds in one and the other case; that is, that
there has been no true possession in the legal sense of the
word. (See also Ayala de Roxas vs. Maglonso, 8 Phil. Rep.,
745; Municipality of Nueva Caceres vs. Director of Lands
and Roman Catholic Bishop of Nueva Caceres, 24 Phil.
Rep., 485).
Possession, under the Civil Code, to constitute the
foundation of a prescriptive right, must be possession under
claim of title (en concepto de dueño) or to use the common
law equivalent of the term, it must be adverse. Acts of a
possessory character performed by one who holds by mere
tolerance of the owner are clearly not en concepto de dueño
and such possessory acts, no matter how long so continued,
do not start the running of the period of prescription.
In the case at bar, the evidence discloses that sometime
after the war, plaintiffs complained against MERALCO's use
and occupancy of the premises. Subsequently, defendant
sometime in 1968 negotiated with plaintiff for the purchase of
the entire lot but the negotiation did not prosper as
MERALCO suspended the negotiations on the ground that it
was considering the selection of another site. Finally, plaintiff
filed the present action on August 7, 1973 after their demand
for compensation was refused. It is obvious that there can be
no prescription or laches to bar plaintiffs' present action.
xxx xxx xxx
(pp. 42-44, Rollo)
Based on the foregoing, it is clear that MERALCO never
acquired any easement over the LEYVAs' property to
G.R. No. L-48384             October 11, 1943
SEVERO AMOR, petitioner, 
vs.
GABRIEL FLORENTINO, ET AL., respondents.
BOCOBO, J.:
The petitioner asks for the setting aside of the decision of the
Court of Appeals which affirmed the judgment of the Court of
First Instance of Ilocos Sur. The trial court declared that an
easement of light and view had been established in favor of
the property of the plaintiffs (respondents herein) and
ordered the petitioner to remove within 30 days all
obstruction to the windows of respondents' house, to abstain
from constructing within three meters from the boundary line,
and to pay P200.00 damages.
It appears that over 50 years ago, Maria Florentino owned a
house and a camarin or warehouse in Vigan, Ilocos Sur. The
house had and still has, on the north side, three windows on
the upper story, and a fourth one on the ground floor.
construct and operate the steel towers. Consequently, the
LEYVAs must be compensated and awarded temperate
damages, attorney's fees and annual compensation for the
loss of use and deprivation of opportunity to profit and
benefit from their lands. As respondent court pointed out (pp.
44-45, Rollo):
In this case, there is no doubt that
plaintiffs' property has been practically
off-limits to its entirety because of the
danger posed by the high voltage
electric current being conducted through
cable lines hanging through the steel
transmission towers, thereby prejudicing
plaintiffs from reaping profits and
benefits from their lands. Aggravating
the situation, plaintiffs remain as owners
only to be liable to payment of real
estate taxes and other related dues and
levies. Meanwhile, the MERALCO does
nothing except to reap benefits and
profits in its business concern to the
prejudice of plaintiffs; or as Manresa has
pined — 'to the annulment of right' of
ownership of plaintiffs. For this plaintiffs
should not be without redress.
ACCORDINGLY, the petition is hereby DENIED and the
decision of the respondent court is AFFIRMED in toto with
costs against petitioner.
SO ORDERED.
Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.
Through these windows the house receives light and air from
the lot where the camarin stands. On September 6, 1885,
Maria Florentino made a will, devising the house and the
land on which it is situated to Gabriel Florentino, one of the
respondents herein, and to Jose Florentino, father of the
other respondents. In said will, the testatrix also devised the
warehouse and the lot where it is situated to Maria
Encarnancion Florentino. Upon the death of the testatrix in
1882, nothing was said or done by the devisees in regard to
the windows in question. On July 14, 1911, Maria
Encarnacion Florentino sold her lot and the warehouse
thereon to the petitioner, Severo Amor, the deed of sale
stating that the vendor had inherited the property from her
aunt, Maria Florentino. In January, 1938, petitioner
destroyed the old warehouse and started to build instead a
two-story house. On March 1st of that year, respondents
filed an action to prohibit petitioner herein from building
higher than the original structure and from executing any
work which would shut off the light and air that had for many
years been received through the four windows referred to.
The Court of First Instance found on the 15th of the same
month that the construction of the new house had almost
been completed, so the court denied the writ of preliminary
injunction.
I.
Inasmuch as Maria Florentino died in 1892, according to the
finding of fact of the Court of Appeals, Articles 541 of the
Civil Code governs this case. The facts above recited
created the very situation provided for in said article, which
reads as follows:
(Spanish - page 406)
Art. 551. La existencia de un signo aparente de
servidumbre entre dos fincas, establecido por el
propietario de ambas, se considerara, si se
enjenare una, como titulo para que la servidumbre
continue activa y pasivamente, a no ser que, al
tiempo de separarse la propiedad de las dos
fincas, se exprese lo contrario en el titulo de
enajenacion de cualquiera de ellas, o se haga
desaparecer acquel signo antes del otorgamiento
de la escritura.
Art. 541. 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.
When the original owner, Maria Florentino, died in 1892, the
ownership of the house and its lot passed to respondents
while the dominion over the camarin and its lot was vested in
Maria Encarnancion Florentino, from whom said property
was later bought by petitioner. At the time the devisees took
possession of their respective portions of the inheritance,
neither the respondents nor Maria Encarnacion Florentino
said or did anything with respect to the four windows of the
respondents' house. The respondents did not renounce the
use of the windows, either by stipulation or by actually
closing them permanently. On the contrary, they exercised
the right of receiving light and air through those windows.
Neither did the petitioner's predecessor in interest, Maria
Encarnacion Florentino, object to them or demand that they
be close. The easement was therefore created from the time
of the death of the original owner of both estates, so when
petitioner bought the land and the camarin thereon from
Maria Encarnancion Florentino, the burden of this easement
continued on the real property so acquired because
according to Article 534, "easements are inseparable from
the estate to which they actively or passively pertain."
An incidental question that arises at this juncture is whether
or not Article 541 applies to a division of property by
succession. The affirmative has been authoritatively
declared. (Manresa, "Comentarios al Codigo Civil Espanol,"
vol. 4, p. 619; Sentence of the Supreme Tribunal of Spain,
November 17, 1911).
Petitioner assigns as an error of the Court of Appeals the
supposed failure of that tribunal to pass upon his motion to
consider certain allegedly new evidence to prove that Maria
Florentino, the original owner of the properties, died in 1885.
Petitioner alleges that Maria Florentino died in 1885 and,
therefore, the Law of the Partidas should be followed in this
case and not the Civil Code. However, the petitioner's
contention cannot be upheld without rejecting the finding of
fact made by the Court of Appeals, as follows:
Hebiendo pasado la propiedad de la casa de
manposteria a los demandantes, a la muerte de
Maria Florentino, ocurrida en 1892, (el
demandado sostiene que fue con anterioridad a
1889) no hay duda ninguna de que los
demandantes adquirieron la servidumbre
mediante titulo y por prescripcion (Art. 537).
We cannot review the above finding of fact by the Court of
Appeals that Maria Florentino die in 1892. The evidentiary
fact from which the Court of Appeals drew the above finding
is that Gregorio Florentino during the trial in 1938 testified to
facts of his own personal knowledge, and he was then 58
years old, having been born in 1880. If Maria Florentino, as
claimed by petitioner, had died in 1885, Gregorio Florentino
would have been only 5 years of age at the time of Maria
Florentino's death. The Court of Appeals therefore
concluded that Maria Florentino died in 1892, when Gregorio
Florentino was ten 12 years of age. We do not believe we
can disturb the finding of the Court of Appeals, because its
deductions as to the date of Maria Florentino's death may be
right or wrong, according to one's own reasoning. In other
words, its conclusion of fact from Gregorio Florentino's
testimony is not necessarily and unavoidably mistaken. On
the contrary, it is reasonable to believe that a person 58
years old cannot remember facts of inheritance as far back
as when he was only 5 years of age.
Furthermore, the burial certificate and the gravestone,
whose copy and photograph, respectively, were offered by
petitioner in a motion for new trial filed in the Court of
Appeals, could have been discovered by petitioner before
the trial in the Court of First Instance by the exercise of due
diligence. There is no reason why this evidence could be
found when the case was already before the Court of
Appeals, but could not be found before the trial in the Court
of First Instance. It was easy, before such trial, for the
petitioner to inquire from the relatives of Maria Florentino as
to when she died. And having ascertained the date, it was
also easy to secure the burial certificate and a photograph of
the gravestone, supposing them to be really of Maria
Florentino. The fact is, petitioner never tried to find out such
date and never tried to secure the additional evidence till his
counsel raised this issue for the first time before the Court of
Appeals. That Court was therefore died in 1885. (Sec. 497,
Act. 190). The petitioner's statement in his brief (p. 11) that
the Court of Appeals neither passed upon his motion nor
took the burial certificate and the gravestone into account is
not true, because the very words of the Court of Appeals
clearly show that the Court had in mind said motion and
evidence when the decision was signed. The decision said:
"a la muerte de Maria Florentino ocurrida en 1892 (el
demandado sostiene que fue con anteriodad a 1889)"
(Emphasis supplied).
Lastly, the issue as to the date of Maria Florentino's death
cannot be raised for the first time on appeal. Petitioner did
not in the trial court allege or prove this point. He presented
this issue for the first time in the Court of Appeals. (Sec. 497,
Act. 190).
Let us now consider Article 541 more closely in its
application to the easement of light and view and to the
easement not to build higher (altius non tollendi). These two
easements necessarily go together because an easement of
light and view requires that the owner of the servient estate
shall not build to a height that will obstruct the window. They
are, as it were, the two sides of the same coin. While an
easement of light and view is positive, that of altius non
tollendi is negative. Clemente de Diego states that when
article 538 speaks of the time for the commencement of
prescription for negative easements, "it refers to those
negative easements which are the result and consequence
of others that are positive, such as the easement not to build
higher, or not to construct, which is indispensable to the
easement of light." (Se refiere a aquellas servidumbres
negativas que son sucuela y consecuencia de otras
positivaas, como la de no levantar mas alto, o de no edificar,
que es imprescindible para la servidumbre de luces.")
("Curso Elemental de Derecho Civil Españos, Comun y
Foral," vol. 3, p. 450). This relation of these two easements
should be borned in mind in connection with the following
discussion of (1) the modes of establishing and acquiring
easements; (2) the meaning of article 541; and (3) the
doctrine in the case of Cortes vs. Yu-Tibo.
First, as to the modes of establishing and acquiring
easements. According to Article 536, easements are
established by law or by will of th owners. Acquisition of
easements is first by title or its equivalent and seconly by
prescription. What acts take the place of title? They are
mentioned in Articles 540 and 541, namely, (1) a deed of
recognition by the owner of the servient estate; (2) a final
judgment; and (3) an apparent sign between two estates,
established by the owner of both, which is the case of article
541. Sanchez Roman calls cuh apparent sign under article
541 "supletoria del titulo constitutivo de la servidumbre
(Derecho Civil, vol. 3, p. 656). The same jurist says in regard
to the ways of constituting easements:
(Spanish word - page 410)
In the Sentence of the Supreme Tribunal of Spain dated
November 7, 1911, it was held that under article 541 of the
Civil Code, the visible and permanent sign of an easement
"is the title that characterizes its existence" ("es el titulo
caracteristico de su existencia.")
It will thus be seen that under article 541 the existence of the
apparent sign in the instance case, to wit, the four windows
under consideration, had for all legal purposes the same
character and effect as a title of acquisition of the easement
of light and view by the respondents upon the death of the
original owner, Maria Florentino. Upon the establishment of
that easement of light and view, the con-comitant and
concurrent easement of altius non tollendi was also
constituted, the heir of the camarin and its lot, Maria
Encarnacion Florention, not having objected to the existence
of the windows. The theory of article 541, of making the
existence of the apparent sign equivalent to a title, when
nothing to the contrary is said or done by the two owners, is
sound and correct, because as it happens in this case, there
is an implied contract between them that the easements in
question should be constituted.
Analyzing article 541 further, it sees that its wording is not
quite felicitous when it says that the easement should
continue. Sound juridical thinking rejects such an idea
because, properly speaking, the easement is not created till
the division of the property, inasmuch as a predial or real
easement is one of the rights in another's property, or jura in
re aliena and nobdy can have an easement over his own
property, nimini sua res servit. In the instant case, therefore,
when the original owner, Maria Florentino, opened the
windows which received light and air from another lot
belonging to her, she was merely exercising her right of
dominion. Consequently, the moment of the constitution of
the easement of light and view, together with that of altius
non tollendi, as the time of the death of the original owner of
both properties. At that point, the requisite that there must be
two proprietors — one of the dominant estate and another of
the servient estate — was fulfilled. (Article 530, Civil Code.)
Upon the question of the time when the easement in article
541 is created, Manresa presents a highly interesting theory,
whether one may agree with it or not. He says:
La servidumbre encubierta, digamoslo asi, por la
unidad de dueño, se hace ostensible, se revela
con toda su verdadera importancia al separarse la
propiedad de las fincas o porciones de finca que
respectivamente deben representar el papel de
predios sirviente y dominante.
The concealed easement, as it were by the
oneness of the owner, becomes visible, and is
revealed in all its importance when the ownership
of the estate or portions of the estate which
respectively should play the role of servient and
dominant estates is divided.
Such a view cannot be fully accepted because before the
division of the estate there is only a service in fact but not an
easement in the strictly juridical sense between the two
buildings or parcels of land.
We come now to the case of Cortes vs. Yu-Tibo, 2 Phil., 24
decided in 1903, Mr. Justice, later Chief Justice, Mapa
speaking for the Court. Counsel for petitioner contends that
the doctrine in that case is controlling in the present one. If
the essential facts of the two cases were the same, there is
not doubt but that the early opinion would be decisive
inasmuch as it is by its cogent reasoning one of the
landmarks in Philippine jurisprudence. However, the facts
and theories of both cases are fundamentally dissimilar.
What is more, as will presently be explained, that every
decision makes a distinction between that case and the
situation provided for in article 541. In that case, Cortes
sought an injunction to restrain Yu-Tibo from continuing the
construction of certain buildings. Cortes' wife owned a house
in Manila which had windows that had been in existence
since 1843. The defendant, who occupied a house on the
adjoining lot, commenced to raise the roof of the house in
such a manner that one-half of the windows in the house
owned by plaintiff's wife had been covered. This Court, in
affirming the judgment of the lower court which dissolved the
preliminary injunction, held that the opening of windows
through one's own wall does not in itself create an
easement, because it is merely tolerated by the owner of the
adjoining lot, who may freely build upon his land to the
extent of covering the windows, under article 581, and that
his kind of easement is negative which can be acquired
through prescription by counting the time from the date when
the owner of the dominant estate in a formal manner forbids
the owner of the servient estate from obstructing the light,
which had not been done by the plaintiff in this case.
It will thus be clear that one of the essential differences
between that case and the present is that while the Yu-Tibo
case involved acquisition of easement by prescription, in the
present action the question is the acquisition of easement by
title, or its equivalent, under article 541. Therefore, while a
formal prohibition was necessary in the former case in order
to start the period of prescription, no such act is necessary
here because the existence of the apparent sign when Maria
Florentino died was sufficient title in itself to created the
easement.
Another difference is that while in the Yu-Tibo case, there
were tow different owners of two separate houses from the
beginning, in the present case there was only one original
owner of the two structures. Each proprietor in the Yu-Tibo
case was merely exercising his rights of dominion, while in
the instant case, the existence of the apparent sign upon the
death of the original owner ipso facto burdened the land
belonging to petitioner's predecessor in interest, with the
easements of light and view and altius non tollendi in virtue
of article 541.
The very decision in Cortes vs. Yu-Tibo distinguishes that
case from the situation foreseen in article 541. Said this
Court in that case:
It is true that the Supreme Court of Spain, in its
decisions of February 7 and May 5, 1986, has
classified as positive easements of light which
were the object of the suits in which these
decisions were rendered in cassation, and from
these it might be believed at first glance, that the
former holdings of the supreme court upon this
subject had been overruled. But this is not so, as a
matter of fact, inasmuch as there is no conflict
between these decisions and the former decisions
above cited.
In the first of the suits referred to, the question
turned upon two houses which had formerly
belonged to the same owner, who established a
service of light on one of them for the benefit of
the other. These properties were subsequently
conveyed to two different persons, but at the time
of the separation of the property noting was said
as to the discontinuance of the easement, nor
were the windows which constituted the visible
sign thereof removed. The new owner of the
house subject to the easement endeavored to free
it from the incumbrance, notwithstanding the fact
that the easement had been in existence for thirty-
five years, and alleged that the owner of the
dominant estate had not performed any act of
opposition which might serve as a starting point for
the acquisition of a prescriptive title. The supreme
court, in deciding this case, on the 7th of February,
1896, held that the easement in this particular
case was positive, because it consisted in the
active enjoyment of the light. This doctrine is
doubtless based upon article 541 of the Code,
which is of the following tenor: "The existence of
apparent sign of an easement between two
tenements, established by the owner of both of
them, shall be considered, should one be sold, as
a title for the active and passive continuance of the
easement, unless, at the time of the division of the
ownership of both tenements, the contrary should
be expressed in the deed of conveyance of either
of them, or such sign is taken away before the
execution of such deed.'
The word "active" used in the decision quoted in
classifying the particular enjoyment of light
referred to therein, presuposes on the part of the
owner of the dominant estate a right to such
enjoyment arising, in the particular cases passed
upon by that decision, from the voluntary act of the
original owner of the two houses, by which he
imposed upon one of them an easement for the
benefit of the other. It is well known that
easements are established, among other cases,
by the will of the owners. (Article 536 of the Code.)
It was an act which was, in fact, respected and
acquiesced in by the new owner of the servient
estate, since he purchased it without making any
stipulation against the easement existing thereon,
but, on the contrary, acquiesced in the
continuance of the apparent sign thereof. As is
stated in the decision itself, "It is a principle of law
that upon a division of a tenement among various
persons — in the absence of any mention in the
contract of a mode of enjoyment different from that
to which the former owner was accustomed —
such easements as may be necessary for the
continuation of such enjoyment are understood to
subsist." It will be seen, then, that the phrase
"active enjoyment" involves an idea directly
opposed to the enjoyment which is the result of a
mere tolerance on the part of the adjacent owner,
and which, as it is not based upon an absolute,
enforceable right, may be considered as of a
merely passive character. (2 Phil., 29-31).
Finally, the Yu-Tibo case was decided upon the theory if the
negative easement of altius non tollendi, while the instant
case is predicated on the idea of the positive easement of
light and view under article 541. On this point, suffice it to
quote from Manresa's work. He says:
Que en las servidumbres cuyo aspecto positivo
aparece enlazado al negativo, asi como al efecto
de la precripcion ha de considerarse prefente el
aspecto negativo, al efecto del art. 541 basta
atender al aspecto positivo, y asi la exitencia de
huecos o ventanas entre dos fincas que fueron de
un mismo dueño es bastante para considerar
establecidas, al separarse la propiedad de esas
fincas, las servidumbres de luces o vista, y con
ellas las de no edificar on no levantar mas ato,
porque sin estas no prodrian existir aquellas.
That in easements whose positive aspect appears
tied up with the negative aspect, just as for the
purposes of prescription the negative aspect has
to be considered preferential, so for the purposes
of Article 541 it is sufficient to view the positive
aspect, and therefore the existence of openings or
windows between two estates which belonged to
the same owner is sufficient to establish, when the
ownership of these estates is divided, the
easement of light or view, and with them the
easements of altius non tollendi because without
the latter, the former cannot exists.
There are several decisions of the Supreme Court of Spain
which have applied Article 541. Some of them are those of
February 7, 1986; February 6, 1904; May 29, 1911; and
November 17, 1911.
The sentence of February 7, 1896, dealt with windows
established in one house by the original of two houses.
When he died, the two houses were adjudicated to different
heirs. The court held that there was an easement of light.
Considerando que, segun lo establecido por este
Supremo Tribunal en repetidas sentencias, y
consignado, muy principalmente, en la dictada en
21 de Octubre de 1892, lo preceptuado en la ley
14, titulo 31 de la Partida 3.a, al tratar del mode de
constituirse las servidumbres, no esta en
oposicion con el pricipio mediante el que, dividida
una finca entre diversas personas, sin que en el
contrato se mencione cosa alguna acerca de un
modo de aprovenchamiento distinto del que usaba
el primitivo dueño de ella, se entieden
subsistentes las servidumbres ncesarias para que
aquel pueda tener lugar.
Considerando que ese principio y jurisprudencia
han obtenido nueva sancion, puesto que a ellos
obedece el concepto claro y concreto del articulo
541 del Codigo Civil, aplicable al caso, . . . (Ruiz,
Codigo Civil, Vol. V, pp. 349-350).
Considering that, according to what has been
established by this Supreme Tribunal in repeated
sentences, and principally declared in the
sentence promulgated on October 21, 1892, the
provision of law 14, title 31 of Partida 3 in treating
of the mode of constituting easements, is not
contrary to the principle that when an estate is
divided between different persons, and in the
contract nothing is said out a mode of enjoyment
different from that used by the original owner
thereof, the necessary easements for said mode
of enjoyment are understood to be subsisting;
Considering that such principle and jurisprudence
have obtained a new santion, for due to them is
the clear and concrete concept of Article 541
applicable to the case . . . .
Therefore, considering that Maria Florentino died in 1892,
according to a finding of fact by the Court of Appeals, there
is an easement of light and view in favor of the respondents'
property under article 541 of the Civil Code.
But granting, arguendo, that Maria Florentino died in 1885,
as contended by petitioner, nevertheless the same principle
enunciated in article 541 of the Spanish Civil Code was
already an integral part of the Spanish law prior to the Civil
Code, the easement in question would also have to be
upheld. That the law before the Civil Code was the same as
at present is shown by the following:
1. Under Law 14, Title 31, Partida 3, this
easement was constituted by an implied contract
among the heirs of Maria Florentino.
2. Granting for the sake of argument that this
easement was not created through an implied
contract according to Law 14, Title 31, Partida 3,
yet that provision of the Partidas was not
inconsistent with the principle in question, so that
there was a gap in the Partidas which the
Supreme Court of Spain filled up from the Roman
Law and modern civil codes, by recognizing the
existence of this kind of easement.
3. Law 17, Title 31, Partida 3 regarding the
extinguishment of an easement did not prohibit the
easement in the instant case, Therefore, we
should adhere to the decisions of the Supreme
Court of Spain which maintain this easement
under the Spanish law prior to Civil Code.
4. Other considerations show that the principle of
apparent sign as announced by the Supreme
Tribunal of Spain is not incompatible with the
Partidas.
First, as to the implied contract. Law 14, Title 31, Partida 3
provided that easements were acquired by contract, by will
and by prescription. Upon the death of the original owner,
Maria Florentino, the four windows under consideration
already existed and were visible. One of the heirs, Maria
Encarnacion Florentino, to whom the camarin and its lot had
been devised, having failed to object to the same, knowingly
consented to their continuance. Nor did Gabriel and Jose
Florentino (devisees of the house that had the four windows)
permanently close the windows. There was consequently an
implied agreement between her and the devisees of the
house with the four windows to the effect that the service of
these windows would continue, thus creating the easement
of light and view and the concomitant easement of altius non
tollendi. Hence, the easement in question was acquired by
Gabriel and Jose Florentino through contract under Law 14,
Title 31, Partida 3.
Secondly, with respect to the doctrine of the Supreme
Tribunal of Spain. In a series of decisions of that court, it was
held that Law 14, Title 31, Partida 3 was not opposed to the
easement under review. One of those decisions is that of
November 7, 1883, which held:
(Spanish word - page 418)
Other decisions of the Supreme Tribunal of Spain to the
same effect are those of September 14, 1867 and June 7,
1883. (See Scaevola, "Codigo Civil Comentado" vol. 10, pp.
272-274.)
So that, granting for the sake of argument, that the
easement was not created through an implied contract
according to Law 14, Title 31, Partida 3, yet that provision of
the Partidas, according to decisions of the Supreme Tribunal
of Spain, was not inconsistent with the principle in question.
The problem in this case not having been foreseen in Law
14, Title 31, Partida 3, there was a gap in the old legislation,
which the Supreme Tribunal of Spain filled up from the
Roman Law and from modern Civil Codes.
The principle in question was deeply rooted in the Roman
Law. It is from the Roman Law that the Supreme Tribunal of
Spain obtained this principle, in order to solve a question not
provided for by the Partidas, whose main source was also
the Roman law. In other words, the Partidas being silent on
the point under consideration, the Supreme Tribunal of
Spain resorted to the authoritative voice of the Roman law
from which the Law of the Partidas had derived its
inspiration.
The following quotations from the Spanish version the
Roman Law Digest will prove the assertions just made:
(Spanish word - page 419)
Among the modern civil codes which contain the rule in
question are those of France, Belgium, Holland, Portugal,
Mexico and Chile. It is presumed that the Supreme Tribunal
of Spain had also in mind at least one of them when it
decided cases involving this principle before the
promulgation of the Spanish Civil Code.
When, therefore, Maria Florentino died (supposing she died
in 1885), the status of the Spanish law was in favor of the
doctrine in question. We cannot change it because it was in
full force at the time of the alleged date of Maria Florentino's
death. We cannot reject a doctrine established by the
Spanish Supreme Tribunal as an integral part of the Spanish
law before the promulgation of the Civil Code in 1889. And
we know that jurisprudence — in the sense of court
decisions — is one of the sources of the law.
Thirdly, concerning Law 17, Title 31, Partida 3. It is true that
the eminent jurist, Manresa, is of the opinion that "el
precepto del art. 541 no solo no existia en nuestra antigua
legislacion, sino que podia deducirse claramente lo contrario
de la ley 17, tit. 31, Partida 3.a . . . ." However, a careful
reading of this provision of the Partidas reveals that the
same did not militate against the creation of an easement by
an apparent sign if nothing was said or done when the
property is divided. Law 17, Title 31, Partida 3, read as
follows:
(spanish word - page 420-21)
This law regulates the extinguishment of an easement by
merger of the dominant and the servient estates. Speaking
of this law of the Partidas and of article 546, par. 1, of the
Civil Code, both of which refer to merger of the two estates,
Acaevola says: (p. 319, vol. 10)
But there is a world of difference between extinguishment of
an easement by merger of the two estates and
the constitution of an easement by an apparent sign when
nothing is done or said upon the division of the property. Law
17, title 31, Partida 3, having in mind only the modes
of extinguishment, the legislator did not intend to cover the
question involved in the present case, which refers to
the creation of an easement.
What, then, are the differences between
the extinguishment of an easement by merger under Law
17, title 31, Partida 3, and the constitution of an easement in
this case, both before and after the Civil Code went into
effect?
First, in merger under Law 17, Title 31, Partida 3, there were
from the very beginning, already two separate estates, the
dominant and the servient estates, whereas in this case,
there was only one estate.
Second, in merger under said Law 17, there were already
two owners, whereas in this case, there was only one owner,
Maria Florentino.
Third, in merger under Law 17, there was already an
easement in the legal sense, whereas in the instant case,
there was only a service between the two lots, (while Maria
Florentino was living) but there was as yet no easement from
the juridical viewpoint.
4. Other considerations prove that the principle of apparent
sign as enunciated by the Supreme Tribunal of Spain is not
inconsistent with the Partidas. These considerations are:
1. Article 537, Civil Code, provides that continuous
and apparent easements are acquired by title, or
by prescription. However, side by side with that
article is article 541 which contemplates an
easement upon division of an estate, unless a
stipulation to the contrary is agreed upon, or the
sign is destroyed. Bearing in mind that "title"
includes a contract, our view is that if Article 537
and 541 of the Civil Code can stand together,
there is no reason why Law 14, title 31, Partida 3,
whereby easements are acquired by contract, by
will and by prescription should be considered
incompatible with the easement under review.
2. Article 546, par. 1 of the Civil Code ordains that
by merger of the two estates in the same owner an
easement is extinguished. Yet, coexistent with
such provision is that of article 541 regarding the
apparent sign which is a title for the easement. If
these two principles can and do stand together
under the Civil Code, the doctrine laid down by the
Supreme Tribunal of Spain — before the Civil
Code was in force — about the effect of an
apparent sign can also stand together with Law
17, title 31, Partida 3 declaring the extinguishment
of an easement by merger.
3. Under article 546, par. 1 of the Civil Code,
merger extinguishes an easement. So in case the
estate is again divided by purchase, etc., the
easement is not, under the Civil Code
automatically revived. That is the same provision
of law 17, title 31, Partida 3, which does not reject
the principle in question, just as article 546, par. 1
of the Civil Code does not reject article 541 about
an apparent sign.
III.
Aside from the foregoing reasons that support the easement
under consideration, the same has been acquired by
respondents through prescriptions.
The easement involved in this case is of two aspects: light
and view and altius non tollendi. These two aspects
necessarily go together because an easement of light and
view prevents the owner of the sevient estate from building
to a height that will obstruct the windows. This court
in Cortes vs. Yu-Tibo, supra, held that the easement
concerned when there is an apparent sign established by the
owner of two estates is positive. Manresa is of the same
opinion, supra. This being so, and inasmuch as the original
heirs of Maria Florentino succeeded to these two estates
either in 1885 or in 1892 and as petitioner bought one of the
lots in 1911, the prescriptive period under any legislation that
may be applied — the Partidas, Civil Code or Code of Civil
Procedure — has elapsed without the necessity of formal
prohibition on the owner of the servient estate. The
respondent's action was brought in 1938. The persons who
were present, and 20 years between absentees. (4 Manresa,
605). According to article 537 of the Civil Code, continous
and apparent easements may be acquired by prescription for
20 years. Under sections 40 and 41 of the Code of Civil
Procedure, the period is 10 years.
IV.
The petitioner maintains that he is an innocent purchaser for
value of the lot and camarin thereon, and that he was not
bound to know the existence of the easement because the
mere opening of windows on one's own wall does not ipso
facto create an easement of light. Such contention might
perhaps be in point if the estates had not originally belonged
to the same owner, who opened the windows. But the
petitioner was in duty bound to inquire into the significance
of the windows, particularly because in the deed of sale, it
was stated that the seller had inherited the property from her
aunt, Maria Florentino. Referring to the Sentence of the
Supreme Court of Spain dated February 7, 1896, which
applied Article 541, this Court in the case of Cortes vs. Yu-
Tibo already cited, said that the establishment of the
easement "was an act which was in fact respected and
acquiesced in by the new owner of the servient estate, since
he purchased it without making any stipulation against the
easement existing thereon, but on the contrary acquiesced
in the new owner of the servient estate, since he purchased
it without making any stipulation against the easement
existing thereon, but on the contrary, acquiesced in the
continuance of the apparent sign thereof." (p. 31). Moreover,
it has been held that purchasers of lands burdened with
apparent easements do not enjoy the rights of third persons
who acquire property, though the burden it not recorded.
(Sentence of the Supreme Tribunal of Spain, April 5, 1898).
V.
Let us now discuss the case from the standpoint of justice
and public policy.
First. — When Maria Encarnacion Florentino, as one of the
devisees, accepted the camarin and the lot, she could not in
fairness receive the benefit without assuming the burden of
the legacy. That burden consisted of the service in fact
during the lifetime of the original owner, which service
became a true easement upon her death.
Second. — According to Scaevola, the reason for the
principle in question is that there is a tacit contract. He says
in vol. 10, p. 277:
(spanish word - page 424)
Aun hay mas: hay, en nuestro entender, no solo
presuncion de voluntad del enajenante, o sea del
dueño de las fincas que estuvieren confundidas,
sino convencion, siquiera sea tacita, entre el
vendedor y al adquirente de la finca vendida.
Puesto que pudiendo estipular la no existencia de
la servidumbre, nada dicen o nada hacen, fuerza
es presumir que el segundo (comprador) acepta el
estado jurisdico creado por el primero (vendedor).
It is not just to allow Maria Encarnacion Florentino or her
successor in interest to repudiate her own undertaking,
implied, it is true, but binding nevertheless. This easement is
therefore a burden which Maria Encarnacion Florentino and
her successor in interest willingly accepted. They cannot
now murmur against any inconvenience consequent upon
their own agreement.
Third. During the construction of the new house by the
petitioner, the respondents filed an action to stop the work.
But petitioner continued the construction, so that when the
Court of First Instance was ready to pass upon the
preliminary injunction, the work had almost been finished.
Petitioner, therefore, cannot complain if he is now ordered to
tear down part of the new structure so as not to shut off the
light from respondents' windows.
Fourth. When petitioner bought this lot from the original
coheir, Maria Encarnacion Florentino, the windows on
respondents' house were visible. It was petitioner's duty to
inquire into the significance of those windows. Having failed
to do so, he cannot now question the easement against the
property which he purchased.
(spanish word - page 425)
This idea of easements can never become obsolete in the
face of modern progress. On the contrary, its need is all the
more pressing and evident, considering that this mutual
assistance and giving way among estates is demanded by
the complexities of modern conditions, such as those which
obtain in large cities where buildings, large and small, are so
close together.
VI.
Recapitulating, we believe the easement of light and view
has been established in favor of the property of respondents,
for these reasons:
1. Maria Florentino having died in 1892, according
to a finding of fact of the Court of Appeals, which
we cannot review, Article 541 of the Civil Code is
applicable to this case.
2. Granting, arguendo, that Maria Florentino died
in 1885, nevertheless that same principle
embodied in article 541 of the Civil Code was
already an integral part of the Spanish law before
the promulgation of the Civil Code in 1889, and
therefore, even if the instant case should be
governed by the Spanish law prior to the Civil
Code, the easement in question would also have
to be upheld.
3. The easement under review has been acquired
by respondents through prescription.
4. The petitioner was not an innocent purchaser,
as he was in duty bound to inquire into the
significance of the windows.
5. Justice and public policy are on the side of the
respondents.
Wherefore, the judgment appealed from should be and is
hereby affirmed, with costs against the petitioner. So
ordered.
Yulo, C. J., Moran Imperial, 1 and Havtiveras, 1 JJ., concur.
Separate Opinions
OZAETA, J., dissenting:
I regret to say that the omnibus opinion of the majority is a
straddle over the baseless finding that Maria Florentino died
in 1892 and the assumption that she died in 1885. Since she
could not have died twice — and the date of her demise was
properly raised as an issue in this case — the equivocal
position thus taken rests on no solid factual foundation.
Straddling and tottering as it is on shaky ground, the opinion
as a whole appears to me untenable and its validity
questionable. Did Maria Florentino pass away in 1892? or
based on the assumption that she died in 1885 is a
mere obiter dictum; and if she died in 1885, then Part I of the
opinion based on the assumption that she died in 1892 is
likewise a mere obiter dictum. Thus it is not permissible for
the Court to straddle the issue.
There is absolutely no basis in the evidence for the finding
that Maria Florentino died in 1892. Indeed in its findings of
fact the Court of Appeals made no mention of the date of
Maria Florentino's demise, but in its conclusion of law the
year she died was incidentally mentioned in the following
manner:
. . . Habiendo pasado la propiedad de la casa de
mamposteria a los demandantes, a la muerte de
Maria Florentino, ocurrida en 1892 (el damandado
sostiene que fue con anterioridad a 1889), no hay
duda ninguna de que los demandantes
adquirieron la servidumbre de luces y vistas sobre
el camarin del demandado mediante titulo y por
prescripcion (Art. 537).
The indirect statement to the effect that Maria Florentino
died in 1892 was not based on any evidence but solely on
the conjecture indulged in by counsel for the respondents in
his brief: That she must have died in the year 1892 because
the respondent Gabriel Florentino testified during the trial as
to facts of his own personal knowledge, and since he was
fifty-eight years old when he testified in 1938, it must be
presumed that he was at least twelve years old when his
aunt Maria Florentino died, and that therefore the death of
the latter must have occurred in the year 1892. Such
deductions were absurd on their face and the Court of
Appeals clearly committed an error of law in adopting them.
A finding of fact must be based on competent proofs — not
on a mere conjecture.
The respondents themselves alleged under oath in their
original as well as in their amended complaint (but were
silent as to this in their second amended complaint) that the
death of Maria Florentino occurred in the year 1888. No
evidence was presented during the trial as to said date, but
nevertheless the trial court applied the Civil Code. The
petitioner as appellant before the Court of Appeals
contended that the Partidas and not the Civil Code was the
law applicable. It was then that respondents (appellees
below) tried to show by deduction and conjecture that Maria
Florentino must have died in 1892. To rebut that, appellant
and his attorney made inquiries as to the true date of Maria
Florentino's demise and discovered from the church record
of burials as well as from her gravestone that she died on
September 7, 1885, and was buried on the following day,
September 8, 1885. They alleged in their affidavit that they
had been unable to ascertain that date before on account of
the misleading allegation in appellees' complaint that Maria
Florentino die in 1888. A certified copy of the partida de
entierro as well as a photograph of the gravestone showing
the inscription of the date of Maria Florentino's death, were
offered by appellant in a motion for new trial filed in the Court
of Appeals on March 4, 1940; and on March 14, 1940, the
Court of Appeals ordered that said motion, together with the
exhibits accompanying it, "be attached to the record and
brought to the attention of the Court when the case is
considered on its merits." Nevertheless the Court of Appeals
either ignored or overlooked said motion and the
documentary evidence accompanying it when it considered
and decided the case on the merits. Under section 2 of Rule
55, as well as under sections 497 of Act No. 190, the court
should have considered the new evidence together with that
adduced in the trial below. Thus, I think it cannot be doubted
that Maria Florentino died on September 7, 1885, more than
four years before the Civil Code took effect.
The majority seem to feel bound by the conjecture indulged
in by the respondents and adopted by the Court of Appeals
that Maria Florentino died in 1892, considering it as a finding
of fact by the Court of Appeals. I beg to differ. A statement of
fact not based on any proof whatever should not be
accepted by this Court, especially when, as in this case, it is
indubitably shown to be contrary to the truth.
It is said that the church record of Maria Florentino's burial
and the photograph of her gravestone showing the
inscription:
D. O. M.
AQUIYACEN LOS RESTOS MOORTALES DE
D. BONIFACIO F. ANATASIO
FALLECIO EN 26 DE OCTUBRE DE 1890
Y SU ESPOSA
Da MARIA FLORENTINO
QUE MURIO
EN 7 DE SETIEMBRE DE 1885
 RECUERDO DE
Da ENCARNACION FLORENTINO
are not newly discovered evidence because they "could
have been discovered by petitioner before the trial in the
Court of First Instance by the exercise of due diligence." I
disagree again. There was no incentive on the part f the
petitioner to look for evidence of the exact date of Maria
Florentino's demise while the case was being tried in the
court below, for the respondents themselves alleged under
oath in their original and amended complaints that she died
in 1888, i.e., before the Civil Code took effect, and
introduced no evidence whatever that she died after 1889. It
was only when the respondents in their brief before the
Court of Appeals tried to show by mental acrobatism that
she must have died in 1892 in order to justify the application
of the Civil Code, that the petitioner became interested in
finding out the exact date of her death in order to impugn
that contention. Under the circumstances, I entertain no
doubt that the proofs offered may be considered newly
discovered within the purview of our procedural law. After all,
the rules of evidence are but a means to an end — to help
establish the truth. To illustrate the irrationality of applying
the rules of evidence too rigidly, let us suppose that an
accused has been convicted of murder and sentenced to
death, but during the pendency of his appeal his counsel
discovers that the alleged victim is living and in good health,
and counsel offers to prove that fact and even presents the
"murdered" man in person before the court. Should this
Court reject the offer of proof and affirm the death sentence
simply because the appellant could have discovered the
existence of the alleged victim by the exercise of due
diligence? Judging from the opinion of the majority in this
case, it should. What a travesty on justice
As a last argument on this point the majority say:
Lastly, the issue as to the date of Maria
Florentino's death cannot be raised for the first
time on appeal. Petitioner did not in the trial court
allege or prove this point. He presented this issue
for the first time in the Court of Appeals. (Sec. 497,
Act. 190)
That is incorrect. Plaintiffs had the burden of proof. They are
the ones who invoke the Civil Code. It was up to them to
prove that the transaction took place after 1889. They
realized that only during the appeal and, to supply their
omission and even contradict their own sworn allegation,
they resorted to amazing deductions from the age of one
witness. So it was the respondents who "presented this
issue for the first time in the Court of Appeals." The petitioner
had the right to meet in then and there.
Since I cannot ignore the glaring fact that Maria Florentino
died not in 1892 but in 1885, I cannot give my assent to the
application of article 541 of the Civil Code to the controversy
between the parties. I therefore regard all the profuse
discussions of the law and citations of jurisprudence found in
Part I of the majority opinion as purely academic.
Part II of the opinion is based on the assumption that Maria
Florentino died in 1885. Here I agree with my esteemed
colleagues on the factual basis but not on the legal
conclusions.
The transitory provisions of the Civil Code, Rules I and 2,
provide that "rights vested under the legislation prior to this
Code by virtue of acts which transpired while it was in force,
shall be govern by such prior legislation even if the code
should otherwise provide with respect thereto, or should not
recognize such rights"; and that "acts and contracts
executed under the prior legislation, and which are valid in
accordance therewith, shall produce all their effects as by
these rules." The prior legislation referred to, insofar as this
case is concerned, was none other than the Partidas.
How were easements acquire under the Partidas? In three
ways only: By contract, by testament, or by prescription.
(See law 14, title 31, Partida 3.) There was no provision in
the Partidas similar to article 541 of the Civil Code regarding
the creation or acquisition of an easement thru the
establishment of an apparent sign thereof by the owner of
two estates.
In their second alternative opinion the majority say that
easement in question was constituted by an implied contract
among the heirs of Maria Florentino under law 14, title
31, Partida 3. The law cited mentions "contract" and not
"implied contract." As a source of right or obligation,
"contract" is entirely different from "implied" contract." The
former is based upon the mutual consent of the parties,
supported by a lawful consideration, and with a definite
subject matter, as, for instance, a contract of lease (articles
1254 and 1261, Civil Code); while the latter is merely
imposed or implied by law from an act performed or
committed by one of the parties without the consent and
even against the will of the other, as, for instance, the
obligation of an embezzler to indemnify his victim and the
right of the latter to demand such indemnity. The mere fact
that one has used the property of another by tolerance or
implied consent of the latter can never give rise to an implied
contract under which the former may assert and enforce a
right to the continued use of that property against the owner.
Next it is said: "Granting for the sake of argument that this
easement was not created through an implied contract
according to Law 14, Title 31, Partida 3, yet that provision of
the Partidas was not inconsistent with the principle in
question, so that there was a gap in the Partidas which the
Supreme Court of Spain filled up from the Roman Law and
modern codes by recognizing the existence of this kind of
easement." (The principle referred to is that embodied in
article 541 of the Civil Code.)
Under this alternative argument it is admitted that
the Partidas (the pre-Civil Code legislation) contained no
provision similar to article 541 of the Civil Code and hence it
was necessary (?) to import a principle from the Roman Law
in order to fill "a gap in the old legislation" as was done by
the Supreme Court of Spain. in the last analysis, the
alternative opinion applies to this case not the previous
legislation as required by the Civil Code transitory provision
but a principle of law imported from ancient Rome.
I disagree as to the necessity for such importation and "filling
the gap" in order to justice to the parties in this case. Let us
consider the facts: Before Maria Florentino died on
September 7, 1885, she owned a parcel of land in the
commercial center of Vigan on which were built a house
and camarin. The camarin was one story and the house two
stories high. Naturally, it was convenient for her to open
windows on that side of the house overlooking
the camarin so long as she did not decide to rebuild and last century apparently thought so, but as I cannot agree
raise the latter. with it I must disregard its voice and follow the light of my
own reason in the premises. By adopting and following the
doctrine of the Supreme Court of Spain the majority of this
The pivotal question is, Did those windows constitute an
Court have, I fear, established here a pernicious precedent.
apparent sign of easement of light and view in favor of the
Hereafter no one in this country can safely rely on our codes
house and against the camarin under the legislation in force
and statutes as enacted by our own legislature, for the court
here at that time, so that upon the subsequent division of the
may at any time read into them any provision or principle of
two estates that sign would constitute a title of and create
law of any other jurisdiction — even of ancient and archaic
such an easement? The negative answer is inescapable
Rome — so long as such provision or principle is not
because the Partidas, unlike the Civil Code, contained no
inconsistent therewith; altho, if we would stop and reflect for
provision supporting the affirmative. But my learned
a moment, we should realize that, logically and legally
colleagues, emulating the Supreme Court of Spain in similar
speaking, any provision not included in the law must
cases, apply principle of the Roman Law to "fill the gap" and
necessarily be considered inconsistent with the legislative
justify the affirmative. The practical result of such "filling the
will, for the legislature has not seen fir to incorporate i
gap" is to give retroactive effect to article 541 of the Civil
therein. "That is unfair! It is absurd! No court would do that!"
Code, in violation of the transitory provision. The laws of
you would protest. Then, I ask, "why do you do it in the
Spain did not ex propio vigore apply to the Philippines. They
instant case?"
had to be expressly extended here by Royal Decrees.
Witness the Civil Code, the Partidas, etc. That being so, the
opinion of the Supreme Court of Spain could not and did not As a third alternative opinion (Part III) the majority hold that
have the force of law in the Philippines. For this reason, I the easement in question has been acquired by respondents
cannot agree with what the majority say that "we cannot thru prescription. This opinion, however, is predicated upon
reject a doctrine established by the Spanish Supreme the assumption that the opening of the windows in question
Tribunal as an integral part of the Spanish law before the constituted an apparent sign of the positive easement of light
promulgation of the Civil Code in 1889." I know of no Royal and view, thus making the period of prescription run from the
Decree making such doctrine an integral part of the Spanish date of the demise of the original owner. But as we have
law in the Philippines. seen , that assumption is wrong because it is promised upon
the improper and unlawful application of either article 541 or
its equivalent principle derived from the Roman Law and
If we do not apply article 541 of the Civil Code — and we
adopted by the Supreme Court of Spain. Without such
cannot apply it because Maria Florentino died in 1885 —
assumption, the period of prescription in this case
there is really a gap in the case for the respondents, but
commenced to run only from January, 1938, when the
none in the case for the petitioner. 1 Under the Partidas, or
petitioner began the construction of the new house and
rather in the absence of an express provision therein similar
when it is supposed the respondents for the first time made
to article 541, the petitioner should win; and since the parties
a formal prohibition against the petitioner's raising his
litigant herein are entitled to have their case decided in
building and obstructing respondents' light and view, in
accordance with the pre-Civil Code legislation in force in the
accordance with the Yu-Tibo case cited in the majority
Philippines as provided in the transitory provisions, since
opinion. Hence I think the prescription theory is also
that legislation without any "gap-filling" is in favor of the
untenable.
petitioner, and since to "fill the gap" would prejudice him and
unduly favor the respondents, the Court should abstain from
so doing as a matter of law and justice. "Filling the gap" is particularly unfortunate and disastrous in
the present case because as a consequence the petitioner
will be compelled to tear down a portion of his newly built
I repeat that as a matter of law and justice the Court should
strong-material house, which in the present emergency, for
not go out of its way to "fill a gap in the Partidas" by resorting
lack of building materials, he will be unable to repair or patch
to a principle in the Roman Law which was not a part of the
up, thus not only causing him unnecessary loss and
law of this country at the time the transactions involved took
hardship but also leaving the torn-off new building for the
place, and for which reason it could not have been in the
public to gape at and be scandalized with. The good
mind of the parties. How can we charge Maria Florentino
Ilocanos would perhaps not be able to understand why, on
with knowledge of that principle of the Roman Law, or even
top of wanton and horrible daily destructions by bombs now
of the decisions of the Spanish Supreme Court, when she
savagely going on in this war-torn world, the Court should
constructed the windows in question? How can we make
find it necessary to add another without any apparent
that principle binding upon her heirs, or assume that they
substantial or material benefit to anybody. "Verily," they
acted in accordance therewith, when they took possession of
would say, "this is a made world!"
their respective hereditary portions upon her death on
September 7, 1885? Who knows but that had they been
apprised of such a principle of Roman Law and told that it In this age of fluorescent lights and air conditioning devices,
would be held binding on them they would have closed the the concommitant easements of light and view and altius
windows in question or made an agreement regarding its non tollendi would seem to be only a deterrent to economic
continuance as long as the camarin was not rebuilt? progress and should not be considered established except
lawphil.net when the law applicable clearly so justifies.

It is argued that, as the Supreme Court of Spain has held, For the foregoing reasons I vote for the reversal of the
the principle in question is not inconsistent with the judgment appealed from.
provisions of the Partidas regarding the mode of acquiring
and extinguishing easements. To that I reply: Is the Court
authorized to amend the law by adding thereto a provision
not inconsistent therewith and, what is worse, make the
amendment retroactive? The Supreme Court of Spain of the
JESUS IS LORD CHRISTIAN SCHOOL FOUNDATION,
INC., petitioner, vs. MUNICIPALITY (now CITY)
OF PASIG, METRO MANILA, respondent.
DECISION
CALLEJO, SR., J.:
Before us is a petition for review of the Decision [1] of
the Court of Appeals (CA) in CA-G.R. CV No. 59050, and its
Resolution dated February 18, 2002, denying the motion for
reconsideration thereof. The assailed decision affirmed the
order of the Regional Trial Court (RTC) of Pasig, Branch
160, declaring the respondent Municipality (now City) of
Pasig as having the right to expropriate and take possession
of the subject property.
The Antecedents
The Municipality of Pasig needed an access road from
E. R. Santos Street, a municipal road near the Pasig Public
Market, to Barangay Sto. Tomas Bukid, Pasig, where 60 to
70 houses, mostly made of light materials, were located. The
road had to be at least three meters in width, as required by
the Fire Code, so that fire trucks could pass through in case
of conflagration.[2] Likewise, the residents in the area needed
the road for water and electrical outlets. [3] The municipality
then decided to acquire 51 square meters out of the 1,791-
square meter property of Lorenzo Ching Cuanco, Victor
Ching Cuanco and Ernesto Ching Cuanco Kho covered by
Transfer Certificate of Title (TCT) No. PT-66585, [4] which is
abutting E. R. Santos Street.
On April 19, 1993, the Sangguniang Bayan of Pasig
approved an Ordinance[5] authorizing the municipal mayor to
initiate expropriation proceedings to acquire the said
property and appropriate the fund therefor. The ordinance
stated that the property owners were notified of the
municipalitys intent to purchase the property for public use
as an access road but they rejected the offer.
On July 21, 1993, the municipality filed a complaint,
amended on August 6, 1993, against the Ching Cuancos for
the expropriation of the property under Section 19 of
Republic Act (R.A.) No. 7160, otherwise known as the Local
Government Code. The plaintiff alleged therein that it notified
the defendants, by letter, of its intention to construct an
access road on a portion of the property but they refused to
sell the same portion. The plaintiff appended to the
complaint a photocopy of the letter addressed to defendant
Lorenzo Ching Cuanco.[6]
The plaintiff deposited with the RTC 15% of the market
value of the property based on the latest tax declaration
covering the property. On plaintiffs motion, the RTC issued a
writ of possession over the property sought to be
expropriated. On November 26, 1993, the plaintiff caused
the annotation of a notice of lis pendens at the dorsal portion
of TCT No. PT-92579 under the name of the Jesus Is Lord
Christian School Foundation, Incorporated (JILCSFI) which
had purchased the property.[7] Thereafter, the plaintiff
constructed therein a cemented road with a width of three
meters; the road was called Damayan Street.
In their answer,[8] the defendants claimed that, as early
as February 1993, they had sold the said property to
JILCSFI as evidenced by a deed of sale[9] bearing the
signature of defendant Ernesto Ching Cuanco Kho and his
wife.
When apprised about the complaint, JILCSFI filed a
motion for leave to intervene as defendant-in-intervention,
which motion the RTC granted on August 26, 1994. [10]
In its answer-in-intervention, JILCSFI averred, by way
of special and affirmative defenses, that the plaintiffs
exercise of eminent domain was only for a particular class
and not for the benefit of the poor and the landless. It alleged
that the property sought to be expropriated is not the best
portion for the road and the least burdensome to it. The
intervenor filed a crossclaim against its co-defendants for
reimbursement in case the subject property is expropriated.
[11]
 In its amended answer, JILCSFI also averred that it has
been denied the use and enjoyment of its property because
the road was constructed in the middle portion and that the
plaintiff was not the real party-in-interest. The intervenor,
likewise, interposed counterclaims against the plaintiff for
moral damages and attorneys fees.[12]
During trial, Rolando Togonon, the plaintiffs
messenger, testified on direct examination that on February
23, 1993, he served a letter of Engr. Jose Reyes, the
Technical Assistant to the Mayor on Infrastructure, to
Lorenzo Ching Cuanco at his store at No. 18 Alkalde Jose
Street, Kapasigan, Pasig. A lady received the same and
brought it inside the store. When she returned the letter to
him, it already bore the signature of Luz Bernarte. He
identified a photocopy of the letter as similar to the one he
served at the store. On cross-examination, he admitted that
he never met Luz Bernarte. [13]
Edgardo del Rosario, a resident of Sto. Tomas Bukid
since 1982 declared that he would pass through a wooden
bridge to go to E. R. Santos Street. At times, the bridge
would be slippery and many had met accidents while walking
along the bridge. Because of this, they requested Mayor
Vicente Eusebio to construct a road therein. He attested that
after the construction of the cemented access road, the
residents had water and electricity.[14]
Augusto Paz of the City Engineers Office testified that,
sometime in 1992, the plaintiff constructed a road
perpendicular from E. R. Santos Street to Sto. Tomas Bukid;
he was the Project Engineer for the said undertaking. Before
the construction of the road, the lot was raw and they had to
put filling materials so that vehicles could use it. According to
him, the length of the road which they constructed was 70
meters long and 3 meters wide so that a fire truck could pass
through. He averred that there is no other road through
which a fire truck could pass to go to Sto. Tomas Bukid. [15]
Manuel Tembrevilla, the Fire Marshall, averred that he
had seen the new road, that is, Damayan Street, and found
that a fire truck could pass through it. He estimated the
houses in the area to be around 300 to 400. Tembrevilla also
stated that Damayan Street is the only road in the area.[16]
Finally, Bonifacio Maceda, Jr., Tax Mapper IV, testified
that, according to their records, JILCSFI became the owner
of the property only on January 13, 1994. [17]
The plaintiff offered in evidence a photocopy of the
letter of Engr. Jose Reyes addressed to Lorenzo Ching
Cuanco to prove that the plaintiff made a definite and valid
offer to acquire the property to the co-owners. However, the
RTC rejected the same letter for being a mere photocopy. [18]
 For the defendant-intervenor, Normita del Rosario,
owner of the property located across the subject property,
testified that there are other roads leading to E. R. Santos
Street. She asserted that only about ten houses of the urban
poor are using the new road because the other residents are
using an alternative right-of-way. She averred that she did
not actually occupy her property; but there were times that
she visited it.[19]
Danilo Caballero averred that he had been a resident
of Sto. Tomas Bukid for seven years. From his house, he
could use three streets to go to E. R. Santos Street, namely,
Catalina Street, Damayan Street and Bagong Taon Street.
On cross-examination, he admitted that no vehicle could
enter Sto. Tomas Bukid except through the newly
constructed Damayan Street.[20]
Eduardo Villanueva, Chairman of the Board of
Trustees and President of JILCSFI, testified that the parcel
of land was purchased for purposes of constructing a school
building and a church as worship center. He averred that the
realization of these projects was delayed due to the passing
of the ordinance for expropriation. [21]
The intervenor adduced documentary evidence that on
February 27, 1993, Lorenzo Ching Cuanco and the co-
owners agreed to sell their property covered by TCT No. PT-
66585 for P1,719,000.00.[22] It paid a down payment
of P1,000,000.00 for the property. After payment of the total
purchase price, the Ching Cuancos executed a Deed of
Absolute Sale[23] over the property on December 13, 1993.
On December 21, 1993, TCT No. PT-92579 was issued in
the name of JILCSFI.[24] It declared the property for taxation
purposes under its name.[25]
On September 3, 1997, the RTC issued an Order in
favor of the plaintiff, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing and in accordance with
Section 4, Rule 67 of the Revised Rules of Court, the Court
Resolves to DECLARE the plaintiff as having a lawful right to
take the property in question for purposes for which the same is
expropriated.
The plaintiff and intervenor are hereby directed to submit at least
two (2) names of their recommended commissioners for the
determination of just compensation within ten (10) days from
receipt hereof.
SO ORDERED.[26]
The RTC held that, as gleaned from the declaration in
Ordinance No. 21, there was substantial compliance with the
definite and valid offer requirement of Section 19 of R.A. No.
7160, and that the expropriated portion is the most
convenient access to the interior of Sto. Tomas Bukid.
Dissatisfied, JILCSFI elevated the case to the CA on
the following assignment of errors:
First Assignment of Error
THE LOWER COURT SERIOUS[LY] ERRED WHEN IT
RULED THAT PLAINTIFF-APPELLEE SUBSTANTIALLY
COMPLIED WITH THE LAW WHEN IT EXPROPRIATED
JILS PROPERTY TO BE USED AS A RIGHT OF WAY.
Second Assignment of Error
THE LOWER COURT ERRED IN DISREGARDING JILS
EVIDENCE PROVING THAT THERE WAS NO PUBLIC
NECESSITY TO WARRANT THE EXPROPRIATION OF THE
SUBJECT PROPERTY.[27]
The Court of Appeals Decision
In a Decision dated March 13, 2001, the CA affirmed
the order of the RTC.[28] The CA agreed with the trial court
that the plaintiff substantially complied with Section 19 of
R.A. No. 7160, particularly the requirement that a valid and
definite offer must be made to the owner. The CA declared
that the letter of Engr. Reyes, inviting Lorenzo Ching Cuanco
to a conference to discuss with him the road project and the
price of the lot, was a substantial compliance with the valid
and definite offer requirement under said Section 19. In
addition, the CA noted that there was also constructive
notice to the defendants of the expropriation proceedings
since a notice of lis pendens was annotated at the dorsal
portion of TCT No. PT-92579 on November 26, 1993. [29]
Finally, the CA upheld the public necessity for the
subject property based on the findings of the trial court that
the portion of the property sought to be expropriated appears
to be, not only the most convenient access to the interior of
Sto. Tomas Bukid, but also an easy path for vehicles
entering the area, particularly fire trucks. Moreover, the CA
took into consideration the provision of Article 33 of the
Rules and Regulations Implementing the Local Government
Code, which regards the construction or extension of roads,
streets, sidewalks as public use, purpose or welfare.[30]
On April 6, 2001, JILCSFI filed a motion for
reconsideration of the said decision alleging that the CA
erred in relying on the photocopy of Engr. Reyes letter to
Lorenzo Ching Cuanco because the same was not admitted
in evidence by the trial court for being a mere photocopy. It
also contended that the CA erred in concluding that
constructive notice of the expropriation proceeding, in the
form of annotation of the notice of lis pendens, could be
considered as a substantial compliance with the requirement
under Section 19 of the Local Government Code for a valid
and definite offer. JILCSFI also averred that no inspection
was ever ordered by the trial court to be conducted on the
property, and, if there was one, it had the right to be present
thereat since an inspection is considered to be part of the
trial of the case.[31]
The CA denied the motion for reconsideration for lack
of merit. It held that it was not precluded from considering
the photocopy[32] of the letter, notwithstanding that the same
was excluded by the trial court, since the fact of its existence
was duly established by corroborative evidence. This
corroborative evidence consisted of the testimony of the
plaintiffs messenger that he personally served the letter to
Lorenzo Ching Cuanco, and Municipal Ordinance No. 21
which expressly stated that the property owners were
already notified of the expropriation proceeding. The CA
noted that JILCSFI failed to adduce controverting evidence,
thus the presumption of regularity was not overcome. [33]
The Present Petition
 In this petition, petitioner JILCSFI raises the following
issues: (1) whether the respondent complied with the
requirement, under Section 19 of the Local Government
Code, of a valid and definite offer to acquire the property
prior to the filing of the complaint; (2) whether its property
which is already intended to be used for public purposes
may still be expropriated by the respondent; and (3) whether
the requisites for an easement for right-of-way under Articles
649 to 657 of the New Civil Code may be dispensed with.
The petitioner stresses that the law explicitly requires
that a valid and definite offer be made to the owner of the
property and that such offer was not accepted. It argues that,
in this case, there was no evidence to show that such offer
has been made either to the previous owner or the
petitioner, the present owner. The petitioner contends that
the photocopy of the letter of Engr. Reyes, notifying Lorenzo
Ching Cuanco of the respondents intention to construct a
road on its property, cannot be considered because the trial
court did not admit it in evidence. And assuming that such
letter is admissible in evidence, it would not prove that the
offer has been made to the previous owner because mere
notice of intent to purchase is not equivalent to an offer to
purchase. The petitioner further argues that the offer should
be made to the proper party, that is, to the owner of the
property. It noted that the records in this case show that as
of February 1993, it was already the owner of the property.
Assuming, therefore, that there was an offer to purchase the
property, the same should have been addressed to the
petitioner, as present owner.[34]
The petitioner maintains that the power of eminent
domain must be strictly construed since its exercise is
necessarily in derogation of the right to property ownership.
All the requirements of the enabling law must, therefore, be
strictly complied with. Compliance with such requirements
cannot be presumed but must be proved by the local
government exercising the power. The petitioner adds that
the local government should, likewise, comply with the
requirements for an easement of right-of-way; hence, the
road must be established at a point least prejudicial to the
owner of the property. Finally, the petitioner argues that, if
the property is already devoted to or intended to be devoted
to another public use, its expropriation should not be
allowed.[35]
For its part, the respondent avers that the CA already
squarely resolved the issues raised in this petition, and the
petitioner failed to show valid and compelling reason to
reverse the CAs findings. Moreover, it is not the function of
the Supreme Court to weigh the evidence on factual issues
all over again.[36] The respondent contends that the Ching
Cuancos were deemed to have admitted that an offer to
purchase has been made and that they refused to accept
such offer considering their failure to specifically deny such
allegation in the complaint. In light of such admission, the
exclusion of the photocopy of the letter of Engr. Reyes,
therefore, is no longer significant.[37]
The Ruling of the Court
The petition is meritorious.
At the outset, it must be stressed that only questions of
law may be raised by the parties and passed upon by the
Supreme Court in petitions for review on certiorari.
[38]
 Findings of fact of the CA, affirming those of the trial
court, are final and conclusive and may not be reviewed on
appeal.[39]
Nonetheless, where it is shown that the conclusion is a
finding grounded on speculations, surmises or conjectures or
where the judgment is based on misapprehension of facts,
the Supreme Court may reexamine the evidence on record.
[40]
Eminent Domain: Nature and Scope
The right of eminent domain is usually understood to
be an ultimate right of the sovereign power to appropriate
any property within its territorial sovereignty for a public
purpose. The nature and scope of such power has been
comprehensively described as follows:
It is an indispensable attribute of sovereignty; a power grounded in
the primary duty of government to serve the common need and
advance the general welfare. Thus, the right of eminent domain
appertains to every independent government without the necessity
for constitutional recognition. The provisions found in modern
constitutions of civilized countries relating to the taking of
property for the public use do not by implication grant the power to
the government, but limit the power which would, otherwise, be
without limit. Thus, our own Constitution provides that [p]rivate
property shall not be taken for public use without just
compensation. Furthermore, the due process and equal protection
clauses act as additional safeguards against the arbitrary exercise
of this governmental power.[41]
Strict Construction and Burden of Proof
The exercise of the right of eminent domain, whether
directly by the State or by its authorized agents, is
necessarily in derogation of private rights.[42] It is one of the
harshest proceedings known to the law. Consequently, when
the sovereign delegates the power to a political unit or
agency, a strict construction will be given against the agency
asserting the power.[43] The authority to condemn is to be
strictly construed in favor of the owner and against the
condemnor.[44] When the power is granted, the extent to
which it may be exercised is limited to the express terms or
clear implication of the statute in which the grant is
contained.[45]
Corollarily, the respondent, which is the condemnor,
has the burden of proving all the essentials necessary to
show the right of condemnation. [46] It has the burden of proof
to establish that it has complied with all the requirements
provided by law for the valid exercise of the power of
eminent domain.
The grant of the power of eminent domain to local
government units is grounded on Section 19 of R.A. No.
7160 which reads:
SEC. 19. Eminent Domain. A local government unit may, through
its chief executive and acting pursuant to an ordinance, exercise
the power of eminent domain for public use, or purpose, or welfare
for the benefit of the poor and the landless, upon payment of just
compensation, pursuant to the provisions of the Constitution and
pertinent laws; Provided, however, That the power of eminent
domain may not be exercised unless a valid and definite offer has
been previously made to the owner, and such offer was not
accepted: Provided, further, That the local government unit may
immediately take possession of the property upon the filing of the
expropriation proceedings and upon making a deposit with the
proper court of at least fifteen percent (15%) of the fair market
value of the property based on the current tax declaration of the
property to be expropriated: Provided, finally, That the amount to
be paid for the expropriated property shall be determined by the
proper court based on the fair market value at the time of the
taking of the property.
The Court declared that the following requisites for the
valid exercise of the power of eminent domain by a local
government unit must be complied with:
1. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the
local government unit, to exercise the power of
eminent domain or pursue expropriation proceedings
over a particular private property.
2. The power of eminent domain is exercised for public
use, purpose or welfare, or for the benefit of the poor
and the landless.
3. There is payment of just compensation, as required under
Section 9, Article III of the Constitution, and other
pertinent laws.
4. A valid and definite offer has been previously made to
the owner of the property sought to be expropriated,
but said offer was not accepted.[47]
Valid and Definite Offer
Article 35 of the Rules and Regulations Implementing
the Local Government Code provides:
ARTICLE 35. Offer to Buy and Contract of Sale. (a) The offer to
buy private property for public use or purpose shall be in writing.
It shall specify the property sought to be acquired, the reasons for
its acquisition, and the price offered.
(b) If the owner or owners accept the offer in its entirety, a contract
of sale shall be executed and payment forthwith made.
(c) If the owner or owners are willing to sell their property but at a
price higher than that offered to them, the local chief executive
shall call them to a conference for the purpose of reaching an
agreement on the selling price. The chairman of the appropriation
or finance committee of the sanggunian, or in his absence, any
member of the sanggunian duly chosen as its representative, shall
participate in the conference. When an agreement is reached by the
parties, a contract of sale shall be drawn and executed.
(d) The contract of sale shall be supported by the following
documents:
(1) Resolution of the sanggunian authorizing the local chief
executive to enter into a contract of sale. The resolution shall
specify the terms and conditions to be embodied in the contract;
(2) Ordinance appropriating the amount specified in the contract;
and
(3) Certification of the local treasurer as to availability of funds
together with a statement that such fund shall not be disbursed or
spent for any purpose other than to pay for the purchase of the
property involved.
The respondent was burdened to prove the mandatory
requirement of a valid and definite offer to the owner of the
property before filing its complaint and the rejection thereof
by the latter.[48] It is incumbent upon the condemnor to
exhaust all reasonable efforts to obtain the land it desires by
agreement.[49] Failure to prove compliance with the
mandatory requirement will result in the dismissal of the
complaint.[50]
An offer is a unilateral proposition which one party
makes to the other for the celebration of a contract. [51] It
creates a power of acceptance permitting the offeree, by
accepting the offer, to transform the offerors promise into a
contractual obligation.[52] Corollarily, the offer must be
complete, indicating with sufficient clearness the kind of
contract intended and definitely stating the essential
conditions of the proposed contract.[53] An offer would
require, among other things, a clear certainty on both the
object and the cause or consideration of the envisioned
contract.[54]
The purpose of the requirement of a valid and definite
offer to be first made to the owner is to encourage
settlements and voluntary acquisition of property needed for
public purposes in order to avoid the expense and delay of a
court action.[55] The law is designed to give to the owner the
opportunity to sell his land without the expense and
inconvenience of a protracted and expensive litigation. This
is a substantial right which should be protected in every
instance.[56] It encourages acquisition without litigation and
spares not only the landowner but also the condemnor, the
expenses and delays of litigation. It permits the landowner to
receive full compensation, and the entity acquiring the
property, immediate use and enjoyment of the property. A
reasonable offer in good faith, not merely perfunctory or pro
forma offer, to acquire the property for a reasonable price
must be made to the owner or his privy.[57] A single bona
fide offer that is rejected by the owner will suffice.
The expropriating authority is burdened to make
known its definite and valid offer to all the owners of the
property. However, it has a right to rely on what appears in
the certificate of title covering the land to be expropriated.
Hence, it is required to make its offer only to the registered
owners of the property. After all, it is well-settled that
persons dealing with property covered by a Torrens
certificate of title are not required to go beyond what appears
on its face.[58]
In the present case, the respondent failed to prove that
before it filed its complaint, it made a written definite and
valid offer to acquire the property for public use as an access
road. The only evidence adduced by the respondent to prove
its compliance with Section 19 of the Local Government
Code is the photocopy of the letter purportedly bearing the
signature of Engr. Jose Reyes, to only one of the co-owners,
Lorenzo Ching Cuanco. The letter reads:
MR. LORENZO CHING CUANCO
18 Alcalde Jose Street
Capasigan, Pasig
Metro Manila
Dear Mr. Cuanco:
This refers to your parcel of land located along E. Santos Street,
Barangay Palatiw, Pasig, Metro Manila embraced in and covered
by TCT No. 66585, a portion of which with an area of fifty-one
(51) square meters is needed by the Municipal Government of
Pasig for conversion into a road-right of way for the benefit of
several residents living in the vicinity of your property. Attached
herewith is the sketch plan for your information.
In this connection, may we respectfully request your presence in
our office to discuss this project and the price that may be mutually
agreed upon by you and the Municipality of Pasig.
Thank you.
Very
truly yours,
(
Sgd.)
E even once, isnt not (sic)?
NGR. JOSE L. REYES
T A Yes, Sir.
echnical Asst. to the Mayor
o
[59]
n Infrastructure
It bears stressing, however, that the respondent
offered the letter only to prove its desire or intent to acquire
the property for a right-of-way.[60] The document was not
offered to prove that the respondent made a definite and
valid offer to acquire the property. Moreover, the RTC
rejected the document because the respondent failed to
adduce in evidence the original copy thereof. [61] The
respondent, likewise, failed to adduce evidence that copies
of the letter were sent to and received by all the co-owners
of the property, namely, Lorenzo Ching Cuanco, Victor
Ching Cuanco and Ernesto Kho.
The respondent sought to prove, through the
testimony of its messenger, Rolando Togonon, that Lorenzo
Ching Cuanco received the original of the said letter. But
Togonon testified that he merely gave the letter to a lady,
whom he failed to identify. He stated that the lady went
inside the store of Lorenzo Ching Cuanco, and later gave the
letter back to him bearing the signature purportedly of one
Luz Bernarte. However, Togonon admitted, on cross-
examination, that he did not see Bernarte affixing her
signature on the letter. Togonon also declared that he did
not know and had never met Lorenzo Ching Cuanco and
Bernarte:
Q And after you received this letter from that
lady, what did you do afterwards?
A I brought it with me, that letter, and then I went
to Caruncho.
Q So, [M]r. Witness, you are telling this
Honorable Court that this letter intended to
Mr. Lorenzo was served at Pasig Trading
which was situated at No. 18 Alkalde Jose
Street on February 23, 1993?
A Yes, Maam.
ATTY. TAN:
That is all for the witness, Your Honor.
COURT:
Do you have any cross-examination?
ATTY. JOLO:
Just a few cross, Your Honor, please. With the
kind permission of the Honorable Court.
COURT:
Proceed.
CROSS-EXAMINATION
BY ATTY. JOLO:
Q Mr. Witness, do you know Mr. Lorenzo Ching
[Cuanco]
A I do not know him.
Q As a matter of fact, you have not seen him
Q This Luz Bernarte, do you know her?
A I do not know her.
Q As a matter of fact, you did not see Mrs.
Bernarte even once?
A That is correct.
Q And as a matter of fact, [M]r. Witness, you did
not see Mrs. Luz Bernarte affixing her
signature on the bottom portion of this
demand letter, marked as Exh. C-2?
A Yes, Sir.[62]
Even if the letter was, indeed, received by the co-
owners, the letter is not a valid and definite offer to purchase
a specific portion of the property for a price certain. It is
merely an invitation for only one of the co-owners, Lorenzo
Ching Cuanco, to a conference to discuss the project and
the price that may be mutually acceptable to both parties.
There is no legal and factual basis to the CAs ruling
that the annotation of a notice of lis pendens at the dorsal
portion of petitioners TCT No. PT-92579 is a substantial
compliance with the requisite offer. A notice of lis pendens is
a notice to the whole world of the pendency of an action
involving the title to or possession of real property and a
warning that those who acquire an interest in the property do
so at their own risk and that they gamble on the result of the
litigation over it.[63] Moreover, the lis pendens was annotated
at the dorsal portion of the title only on November 26, 1993,
long after the complaint had been filed in the RTC against
the Ching Cuancos.
Neither is the declaration in one of the whereas
clauses of the ordinance that the property owners were
already notified by the municipality of the intent to purchase
the same for public use as a municipal road, a substantial
compliance with the requirement of a valid and definite offer
under Section 19 of R.A. No. 7160. Presumably,
the Sangguniang Bayan relied on the erroneous premise
that the letter of Engr. Reyes reached the co-owners of the
property. In the absence of competent evidence that, indeed,
the respondent made a definite and valid offer to all the co-
owners of the property, aside from the letter of Engr. Reyes,
the declaration in the ordinance is not a compliance with
Section 19 of R.A. No. 7160.
The respondent contends, however, that the Ching
Cuancos, impliedly admitted the allegation in its complaint
that an offer to purchase the property was made to them and
that they refused to accept the offer by their failure to
specifically deny such allegation in their answer. This
contention is wrong. As gleaned from their answer to the
complaint, the Ching Cuancos specifically denied such
allegation for want of sufficient knowledge to form a belief as
to its correctness. Under Section 10, [64] Rule 8 of the Rules of
Court, such form of denial, although not specific, is sufficient.
Public Necessity
We reject the contention of the petitioner that its
property can no longer be expropriated by the respondent
because it is intended for the construction of a place for
religious worship and a school for its members. As aptly
explained by this Court in Manosca v. Court of Appeals,
[65]
 thus:
It has been explained as early as Sea v. Manila Railroad Co., that:
A historical research discloses the meaning of the term public
use to be one of constant growth. As society advances, its demands
upon the individual increases and each demand is a new use to
which the resources of the individual may be devoted.
for whatever is beneficially employed for the community is a
public use.
Chief Justice Enrique M. Fernando states:
The taking to be valid must be for public use. There was a time
when it was felt that a literal meaning should be attached to such a
requirement. Whatever project is undertaken must be for the public
to enjoy, as in the case of streets or parks. Otherwise, expropriation
is not allowable. It is not so any more. As long as the purpose of
the taking is public, then the power of eminent domain comes into
play. As just noted, the constitution in at least two cases, to remove
any doubt, determines what is public use. One is the expropriation
of lands to be subdivided into small lots for resale at cost to
individuals. The other is the transfer, through the exercise of this
power, of utilities and other private enterprise to the government. It
is accurate to state then that at present whatever may be
beneficially employed for the general welfare satisfies the
requirements of public use.
Chief Justice Fernando, writing the ponencia  in J.M. Tuason &
Co. vs. Land Tenure Administration, has viewed the Constitution a
dynamic instrument and one that is not to be construed narrowly
or pedantically so as to enable it to meet adequately whatever
problems the future has in store. Fr. Joaquin Bernas, a noted
constitutionalist himself, has aptly observed that what, in fact, has
ultimately emerged is a concept of public use which is just as
broad as public welfare.
Petitioners ask: But (w)hat is the so-called unusual interest that the
expropriation of (Felix Manalos) birthplace become so vital as to
be a public use appropriate for the exercise of the power of
eminent domain when only members of the Iglesia ni Cristo would
benefit? This attempt to give some religious perspective to the case
deserves little consideration, for what should be significant is the
principal objective of, not the casual consequences that might
follow from, the exercise of the power. The purpose in setting up
the marker is essentially to recognize the distinctive contribution of
the late Felix Manalo to the culture of the Philippines, rather than
to commemorate his founding and leadership of the Iglesia ni
Cristo. The practical reality that greater benefit may be derived by
members of the Iglesia ni Cristo than by most others could well be
true but such a peculiar advantage still remains to be merely
incidental and secondary in nature. Indeed, that only a few would
actually benefit from the expropriation of property, does not
necessarily diminish the essence and character of public use.
The petitioner asserts that the respondent must
comply with the requirements for the establishment of an
easement of right-of-way, more specifically, the road must
be constructed at the point least prejudicial to the servient
state, and that there must be no adequate outlet to a public
highway. The petitioner asserts that the portion of the lot
sought to be expropriated is located at the middle portion of
the petitioners entire parcel of land, thereby splitting the lot
into two halves, and making it impossible for the petitioner to
put up its school building and worship center.
The subject property is expropriated for the purpose of
constructing a road. The respondent is not mandated to
comply with the essential requisites for an easement of right-
of-way under the New Civil Code. Case law has it that in the
absence of legislative restriction, the grantee of the power of
eminent domain may determine the location and route of the
land to be taken[66] unless such determination is capricious
and wantonly injurious.[67] Expropriation is justified so long as
it is for the public good and there is genuine necessity of
public character.[68]Government may not capriciously choose
what private property should be taken.[69]
The respondent has demonstrated the necessity for
constructing a road from E. R. Santos Street to Sto. Tomas
Bukid. The witnesses, who were residents of Sto. Tomas
Bukid, testified that although there were other ways through
which one can enter the vicinity, no vehicle, however,
especially fire trucks, could enter the area except through
the newly constructed Damayan Street. This is more than
sufficient to establish that there is a genuine necessity for
the construction of a road in the area. After all, absolute
necessity is not required, only reasonable and practical
necessity will suffice.[70]
Nonetheless, the respondent failed to show the
necessity for constructing the road particularly in the
petitioners property and not elsewhere. [71] We note that the
whereas clause of the ordinance states that the 51-square
meter lot is the shortest and most suitable access road to
connect Sto. Tomas Bukid to E. R. Santos Street. The
respondents complaint also alleged that the said portion of
the petitioners lot has been surveyed as the best possible
ingress and egress. However, the respondent failed to
adduce a preponderance of evidence to prove its claims.
On this point, the trial court made the following
findings:
The contention of the defendants that there is an existing alley that The Sangguniang Bayan of Pasig approved an Ordinance
can serve the purpose of the expropriator is not accurate. An authorizing the municipal to initiate expropriation proceedings to
inspection of the vicinity reveals that the alley being referred to by
acquire the said property and appropriate the fund therefor. The
the defendants actually passes thru Bagong Taon St. but only about
one-half (1/2) of its entire length is passable by vehicle and the ordinance stated that the property owners were notified of the
other half is merely a foot-path. It would be more inconvenient to municipality’s intent to purchase the property for public use as an
widen the alley considering that its sides are occupied by access road but they rejected the offer.
permanent structures and its length from the municipal road to the
area sought to be served by the expropriation is considerably
longer than the proposed access road. The area to be served by the
access road is composed of compact wooden houses and literally a
slum area. As a result of the expropriation of the 51-square meter Municipality filed a complaint against the Ching Cuangcos for the
portion of the property of the intervenor, a 3-meter wide road open expropriation of the property under Sec. 19 of RA 7160. It
to the public is created. This portion of the property of the appended to the complaint a photocopy of the letter addressed to
intervenor is the most convenient access to the interior of Sto. defendant Lorenzo Ching Chuangco.
Tomas Bukid since it is not only a short cut to the interior of the
Sto. Tomas Bukid but also an easy path for vehicles entering the
area, not to mention the 3-meter wide road requirement of the Fire
Code.[72]
City of Pasig deposited with the RTC 15% of the market value of
However, as correctly pointed out by the petitioner, the property based on the latest tax declaration covering the
there is no showing in the record that an ocular inspection property. On plaintiff’s motion, RTC issued a Writ of Possession.
was conducted during the trial. If, at all, the trial court Plaintiff caused the annotation of a notice of lis pendens at the
conducted an ocular inspection of the subject property dorsal portion of the TCT under the name of Jesus is Lord Christian
during the trial, the petitioner was not notified thereof. The
School Foundation (JILCSFI) which had purchased the property.
petitioner was, therefore, deprived of its right to due process.
It bears stressing that an ocular inspection is part of the trial
as evidence is thereby received and the parties are entitled
to be present at any stage of the trial.[73] Consequently,
where, as in this case, the petitioner was not notified of any City of Pasig constructed therein a cemented road with a width of
ocular inspection of the property, any factual finding of the three meters; the road was called Damayan Street.
court based on the said inspection has no probative weight.
The findings of the trial court based on the conduct of the
ocular inspection must, therefore, be rejected.

IN LIGHT OF ALL THE FOREGOING, the petition is Ching Cuancos claimed, in their answer that, as early as Feb ’93
GRANTED. The Decision and Resolution of the Court of they had already sold the property to JILCSFI via deed of sale.
Appeals are REVERSED AND SET ASIDE. The RTC is
ordered to dismiss the complaint of the respondent without JILCSFI filed a motion to intervene as defendant-in-intervention
prejudice to the refiling thereof. which the RTC granted. It averred that the City of Pasig’s exercise
of eminent domain was only for a particular class and not for the
SO ORDERED.
benefit of the poor and the landless.
Puno, (Chairman), Austria-Martinez,
Tinga, and Chico-Nazario, JJ., concur

The City of Pasig offered in evidence a photocopy of the letter of

Jesus is Lord Christian School Foundation v City of Pasig GR Engr. Jose Reyes addressed to Lorenzo Ching Cuanco to prove that
152230 the plaintiff made a definite and valid offer to acquire the
property to the co-owners. However, the RTC rejected the same
letter for being a mere photocopy.

The Municipality (now City) of Pasig needed an access road from

ER Santos St., a municipal road near the Pasig Public Market, to
Brgy. Sto. Tomas Bukid, Pasig, where 60 to 70 houses were
located. The road had to be at least three meters in width, as
required by the Fire Code, so that fire trucks could pass through in
case of conflagration. Likewise, the residents in the area needed
the road for water and electrical outlets. The municipality then
decided to acquire 51 square meters out of the 1,791- square
meter property of respondents Lorenzo Ching Cuanco, Victor
Ching Cuanco and Ernesto Ching Cuanco Kho (Ching Cuangcos)
which is abutting E. R. Santos Street.
RTC issued an order in favor of plaintiff. The plaintiff and
intervenor are hereby directed to submit at least two (2) names of
their recommended commissioners for the determination of just
compensation within ten (10) days from receipt hereof.
RTC held that, as gleaned from the declaration in Ordinance No.
21, there was substantial compliance with the definite and valid
offer requirement of Section 19 of R.A. No. 7160, and that the
expropriated portion is the most convenient access to the interior
of Sto. Tomas Bukid.

CA affirmed the order of the RTC. CA declared that the letter of
Engr. Reyes, inviting Lorenzo Ching Cuanco to a conference to
discuss with him the road project and the price of the lot, was a
substantial compliance with the "valid and definite offer"
requirement under said Section 19. In addition, the CA noted that
there was also constructive notice to the defendants of the
expropriation proceedings since a notice of lis pendens was
annotated at the dorsal portion of the TCT. Finally. CA upheld the
public necessity for the subject property based on the findings of
the trial court that the portion of the property sought to be
expropriated appears to be, not only the most convenient access
to the interior of Sto. Tomas Bukid, but also an easy path for
vehicles entering the area, particularly fire trucks. Moreover, the
CA took into consideration the provision of Article 33 of the LGC’s
IRR, which regards the "construction or extension of roads,
streets, sidewalks" as public use, purpose or welfare.
JILCSFI filed a MR. CA denied the MR.
ISSUE/s:
1. Was there a valid expropriation on the part of the
municipality? None
2. W/N the expropriation of the subject property is
subject to the
1. essential requisites for an easement of right of way?
NO
HELD:
1. The right of eminent domain is usually understood to be an
ultimate right of the sovereign power to appropriate any
property within its territorial sovereignty for a public purpose.
 However, this power still has its limits. The
Constitution provides that private property shall not be
taken for public use without just compensation. Also,
the due process and equal protection clauses are
safeguards against arbitrary exercise of governmental
power.
 The exercise of the right of eminent domain, whether
directly by the State or by its authorized agents, is
necessarily in derogation of private rights. When the
sovereign delegates the power to a political unit or
agency, a strict construction will be given against the
agency asserting the power. The authority to condemn
is to be strictly construed in favor of the owner and
against the condemnor.
 Corollarily, the respondent, which is the condemnor,
has the burden of proving all the essentials necessary
to show the right of condemnation. It has the burden
of proof to establish that it has complied with all the
requirements provided by law for the valid exercise of
the power of eminent domain.
The Court declared that the following requisites for the valid
exercise of the power of eminent domain by a local government
unit must be complied with:
1. An ordinance is enacted by the local legislative council
authorizing the local chief executive, in behalf of the
local government unit, to exercise the power of
eminent domain or pursue expropriation proceedings
over a particular private property.
2. The power of eminent domain is exercised for public
use, purpose or welfare, or for the benefit of the poor
and the landless.
3. There is payment of just compensation, as required
under Section 9, Article III of the Constitution, and
other pertinent laws.
4. A valid and definite offer has been previously made to
the owner of the property sought to be expropriated,
but said offer was not accepted.
It is incumbent upon the condemnor to exhaust all reasonable
efforts to obtain the land it desires by agreement. An offer is a
unilateral proposition which one party makes to the other for the
celebration of a contract. The offer must be complete, indicating
with sufficient clearness the kind of contract intended and
definitely stating the essential conditions of the proposed
contract.
The purpose of the requirement of a valid and definite offer to be
first made to the owner is to encourage settlements and voluntary
acquisition of property needed for public purposes in order to
avoid the expense and delay of a court action. A single bona fide
offer that is rejected by the owner will suffice.
A letter offered only to prove the municipality’s desire or intent to
acquire a property for a right-of-way does not prove that the LGU
made a definite and valid offer to acquire the property for public
use as an access road before filing the complaint for expropriation
 In this case, respondent failed to prove that before it
filed its complaint, it made a written definite and valid
offer to acquire the property for public use as an
access road. The only evidence adduced by the
municipality is the photocopy of the letter purportedly
bearing the signature of Engr. Jose Reyes, to only one
of the co-owners, Lorenzo Ching Cuanco. In that letter,
the respondent offered the letter only to prove its
desire or intent to acquire the property for a right-of-
way. The document was not offered to prove that the
respondent made a definite and valid offer to acquire
the property. Respondent also failed to adduce
evidence that copies of the letter were sent and
received by all the co-owners of the property (Lorenzo
Cuanco, Victor Cuanco and Ernesto Kho)
There is no legal and factual basis to the CA’s ruling that the
annotation of a notice of lis pendens at the dorsal portion of the
owner’s certificate of title is a substantial compliance with the
requisite offer.
 In this case, it was annotated long after the complaint
had been filed in the RTC against Ching Cuancos.
In the absence of competent evidence that, indeed, the
municipality made a definite and valid offer to all the co-owners
of the property, the declaration in an ordinance that the property
owners were already notified of the intent to purchase the same
for public use as a municipal road is not a compliance with Section
19 of R.A. No. 7160
 In here, the whereas clause in the ordinance that “the
property owners were already notified by the
municipality of the intent to purchase the same for
public use as a municipal road” is not deemed a
substantial compliance with the law.
A property that is intended for the construction of a place of
religious worship and a school for its members may still be
expropriated.
 Petitioner contends that the property can no longer be
expropriated by the respondent because it is intended
for the construction of a place for religious worship
and a school for its members. However, in Manosca v
CA, the term public use is one of constant growth. As
society advances, its demands upon the individual
increases and each demand is a new use to which the
resources of the individual may be devoted. . . . for
“whatever is beneficially employed for the community
is a public use.”
2. Where property is expropriated for the purpose of constructing
a road, the expropriator is not mandated to comply with the
essential requisites for an easement of right-of-way under the
New Civil Code—case law has it that in the absence of legislative
restriction, the grantee of the power of eminent domain may
determine the location and route of the land to be taken unless
such determination is capricious and wantonly injurious.
 Hence, expropriation is justified as long as it is for
public good & there is genuine necessity of public
character. The Government can’t capriciously choose
what private property should be taken.
The testimony of witnesses that although there were other ways
through which one can enter the vicinity, no vehicle, however,
especially fire trucks, could enter the area except through the
property sought to be expropriated is more than sufficient to
establish that there is a genuine necessity for the construction of
a road in the area—absolute necessity is not required, only
reasonable and practical necessity will suffice.
 But in this case, respondent failed to show the
necessity for constructing the road particularly in the
petitioner’s property and not elsewhere. We note that
the whereas clause of the ordinance states that the 51-
square meter lot is the shortest and most suitable
access road to connect Sto. Tomas Bukid to E. R.
Santos Street.
 The respondent’s complaint also alleged that the said
portion of the petitioner’s lot has been surveyed as the
best possible ingress and egress. However, the
respondent failed to adduce a preponderance of
evidence to prove its claims.
An ocular inspection is part of the trial as evidence is thereby
received and the parties are entitled to be present at any stage of
the trial—where the property owner was not notified of any
ocular inspection of the property, any factual finding of the court
based on the said inspection has no probative weight.
 In this case, nowhere in the record shows that an
ocular inspection was conducted during trial. If, at all,
the trial court conducted an ocular inspection of the
property during trial, the petitioner wasn’t notified.
Hence, petitioner was deprived of its right to due
process.
Petition is granted. CA decision reversed and set aside. RTC is
ordered to dismiss the complaint of City of City of Pasig without
prejudice to refiling thereof.
FELICITACION B. BORBAJO, petitioner, vs. HIDDEN
VIEW HOMEOWNERS, INC., SPS. MARCELINA
A. SARCON, ELY D. SARCON, ROBERTO
ALVAREZ, CORAZON NOMBRADO, and
GILBERT ANDRALES, in their personal
capacities, respondents.
DECISION
TINGA, J.:
Before this Court is a Rule 45 petition assailing the
Decision[1] dated 21 September 2001 of the Court of Appeals
which reversed the Decision[2] dated 14 September 1999 of
the Regional Trial Court (RTC) of Cebu City, Branch 58.
 The factual antecedents are as follows:
Jose C. Bontuyan (Bontuyan), Lucy Solon, Georgina
Solon, Helen Solon and Vicente Solon, Jr. (the Solons) were
the registered owners of a parcel of agricultural land (Lot
10183-A), covering an area of 13,910 square meters
situated at Barangay Bacayan, Cebu City as evidenced by
Transfer Certificate of Title (TCT) No. 73709 of the Register
of Deeds of Cebu City. [3]At the instance of Bontuyan, the
property was surveyed on 19 May 1991 to convert it into a
subdivision. On 6 June 1991, the corresponding subdivision
plan, showing three (3) road lots as such, was submitted to
the Cebu Office of the Department of Environment and
Natural Resources (DENR). On 24 July 1991, the Regional
Technical Director of the DENR, Lands Management Sector,
Region Office VII, in Cebu, approved the subdivision plan.
[4]
 Meanwhile, in his own behalf and as attorney-in-fact of the
Solons and following the subdivision scheme in the plan,
Bontuyan sold the resulting lots to different individuals, [5] as
evidenced by the Deed of Absolute Sale[6] dated 18 June
1991.
Among the lots sold are the ones which later became
the subject of this case, the three (3) road lots. The road lots
were sold to petitioner Felicitacion B. Borbajo, married to
Danilo S. Borbajo, and Prescillana B. Bongo (Bongo),
married to Patricio P. Bongo. [7] However, they obtained the
titles to the lots more than a month later on 30 July 1991.[8]
Using the advance payments of his lot purchasers,
Bontuyan proceeded to develop a subdivision which was
later named Hidden View Subdivision I by its residents and
homeowners.[9]Later, he applied for and secured from the
Housing and Land Use Regulatory Board (HLURB)
a License to Sell[10] dated 29 July 1991.
Borbajo also decided to develop into a subdivision the
other properties adjacent to Hidden View Subdivision I which
she acquired. Thus, she applied for and received SSA 674-
5-94 issued by the Cebu City Planning and Development
Department, covering the parcel of land embraced by TCT
No. 127642, to be subdivided into twenty-three (23) lots.
[11]
 She named this new subdivision ST Ville Properties. On
29 July 1994, she secured Certificate of Registration No.
05005 for the ST Ville Properties project and a License to
Sell the same from the HLURB. She also secured a
Certificate of Registration dated 18 August 1994 for another
subdivision project called Hidden View Subdivision II from
the HLURB, with the corresponding License to Sell issued
on 16 August 1994. The two new subdivision projects were
located at the back of Hidden View Subdivision I.
The residents and homeowners of Hidden View
Subdivision I heard reports to the effect that Borbajo had
purchased the entire subdivision from Bontuyan through an
oral agreement. They also heard that they have no right to
use the road lots, since the lots have already been
registered in Borbajos name. As a consequence, the Hidden
View Homeowners, Inc. invited Borbajo to a meeting. When
confronted by the homeowners about her claim that she had
bought the subdivision from Bontuyan, Borbajo confirmed
her claim of ownership over the subdivision and the road
lots. She also told them that they have no right regarding the
road right-of-way.[12]
The incident prompted the homeowners of Hidden
View Subdivision I to inquire with the HLURB about the
validity of the registration of the subdivision road lots in the
name of Borbajo. They also asked whether she had the
necessary documents for the development of Hidden View
Subdivision II and ST Ville Properties. In a letter[13] dated 17
March 1997, HLURB Regional Officer Antonio Decatoria, Sr.
replied that under the law the owner or developer of the
subdivision should have legal title or right over the road lots
of the subdivision and that if the title or right is in the name of
other persons it follows that there is failure to comply with
the requirements of the law. The HLURB Officer pointed out
that Hidden View Subdivision II and ST Ville Properties had
not filed an application for registration and license to sell with
the HLURB.[14]
On 10 August 1997, the homeowners caused the
construction of a guardhouse at the entrance of Hidden View
Subdivision I and hired the services of a security guard to
prevent unauthorized persons and construction vehicles
from passing through their subdivision. The measures
adversely affected the residents of the subdivisions at the
back, as well as Borbajo herself since her delivery trucks
and heavy equipment used in the construction of her
housing projects then on-going had been effectively
prevented from passing through the road lots.[15]
On 28 August 1997, Borbajo filed before the RTC of
Cebu City, Branch 58, an action for damages and injunction
against Hidden View Homeowners, Inc., spouses Marcelina
A. Sarcon and Ely D. Sarcon, Roberto Alvarez and Corazon
Nombrado and Gilbert Andrales (respondents herein).
Borbajo prayed for the issuance of a temporary restraining
order (TRO) directing respondents to maintain the status
quo and to desist from preventing her delivery trucks and
other construction vehicles, and her construction workers,
from passing through the road lots, and, after hearing on the
merits, that judgment be rendered making the restraining
order or preliminary injunction permanent and ordering the
defendants to pay damages.[16]
The trial court issued a TRO effective for seventy-two
(72) hours. After due hearing, it also granted Borbajos
application for a writ of preliminary injunction. It denied
respondents motion to dismiss on the ground that it is the
HLURB which has jurisdiction over the case.[17]
After trial, the trial court rendered its decision dated 14
September 1999, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered
enjoining the defendants to close [sic] the road lots in question,
hence, making the injunction permanent, subject to the right of the
defendants to regulate the passage thereof by the plaintiff and the
general public; and directing the plaintiff to donate the road lots in
question to the government of Cebu City. No pronouncement as to
any damages and as to costs.
SO ORDERED.[18]
On appeal, the Court of Appeals reversed the lower
court decision. The decretal portion of the appellate courts
decision dated 21 September 2001 reads:
WHEREFORE, premises considered, the present appeal is hereby
GRANTED. The appealed Decision in Civil Case No. CEB-20796
is hereby REVERSED and SET ASIDE and a new one is hereby
rendered DISMISSING the complaint. The counterclaim of
defendants-appellants is likewise dismissed for lack of legal and
factual bases.
No pronouncement as to costs.
SO ORDERED.[19]
 Undaunted, Borbajo elevated the case to this Court.
In her petition, Borbajo imputes error to the appellate
court (a) in reversing the decision of the trial court which
declared her to be the developer of Hidden View Subdivision
I, (b) in finding that she had fraudulently secured the
registration of the three (3) road lots, and (c) in declaring that
she is not entitled to the injunctive relief.[20]
Borbajo contends that the appellate court erred in
reversing the finding of the RTC that she is the developer
of Hidden View Subdivision I. According to her, and as borne
out by her testimony before the RTC, she was the true
developer of Hidden View Subdivision I even though the
License to Sell was issued in the name of Bontuyan. The
appellate court allegedly violated prevailing jurisprudence
when it held that she fraudulently secured the registration of
the three (3) road lots since a certificate of title cannot be
collaterally attacked except in direct proceedings instituted
for that purpose. In fact, Hidden View Homeowners, Inc. has
filed a separate case for annulment of title against Borbajo
which is now pending before Branch 9 of the RTC of Cebu
City. Further, she claims that she is entitled to the injunctive
relief considering that she is the registered owner of these
road lots in question and, hence, she has a right
in essewhich deserves legal protection.[21]
On the other hand, respondents argue that the sale of
the road lots made by Bontuyan in favor of Borbajo was
illegal and contrary to the provisions of Presidential Decree
(P.D.) No. 957 which requires that the road lots in a
subdivision development shall be in the name of the
developer or owner, of which Borbajo is neither. [22] They aver
that Borbajo fraudulently obtained her titles to the road lots
through a falsified deed of sale which was the document
presented to the Office of the Register of Deeds. [23] They
also point out that the use by Borbajo of the road lots for the
ingress and egress of heavy equipment has continuously
resulted in the rapid deterioration of the roads. Moreover, the
road lots are not the nearest point between the development
project of Borbajo and the provincial road. [24] Finally, they
assert that they are merely exercising acts of ownership
which include the right to prevent others from enjoying the
thing owned by them. Respondents oppose the issuance of
a preliminary injunction because notwithstanding the
registration of the subject road in Borbajos name, her title
thereto is tainted by the discovery of fraud she allegedly
perpetrated in securing the questioned titles.[25]
The result which Borbajo seeks to achieve which is to
reinstate the preliminary injunction issued by the lower court
has to be granted, but not for the reasons which she has
raised nor for the grounds which the lower court relied upon.
The ultimate question for resolution is whether
respondents may legally prevent Borbajo from using and
passing through the three (3) road lots within Hidden View
Subdivision I. It is worthy of note that the right of
respondents to use the road lots themselves is not in
dispute.
In resolving the controversy, the lower court addressed
only the issue of whether respondents have the right to close
the road lots, and the question of damages. [26] It concluded
that respondents cannot legally close the road lots because
these are intended for public use. It opted not to resolve the
question pertaining to the validity of Borbajos acquisition of
the road lots and her title thereto on the ground that a
Torrens title cannot be collaterally attacked. [27]
For its part, the Court of Appeals addressed the trial
courts errors assigned by the respondents herein. The trial
court allegedly erred in: (a) finding that Borbajo was the
developer of Hidden View Subdivision I; (b) finding that the
manner by which Borbajo acquired the road lots is irrelevant
to the resolution of the issues in this case; (c) finding that the
road lots are open to the public and the only right of the
residents therein is to regulate its use; (d) not finding that the
elements of an easement of a right-of-way are not present;
(e) finding that the injunction was properly issued and the
court ordered Borbajo to donate the road lots in favor of the
local government unit; and (f) failing to award damages to
the respondents.[28]
The appellate court found that the injunctive writ was
erroneously issued as the same was not based on an actual
right sought to be protected by law. The fact that Borbajo
was the developer of Hidden View Subdivision I was not
clearly established by evidence. Although Borbajo has
claimed that she was the developer of the subdivision and
that Bontuyans name was indicated in the License to Sell,
such claim carried scant weight in the absence of a
certificate of registration of the subdivision project issued in
her name by the HLURB and other documents which prove
that she was indeed the developer.[29] Further, the appellate
court ruled that the fact of registration of the road lots in
Borbajos name was insufficient to defeat the right of the
homeowners of the subdivision and preclude them from
regulating their use and administration thereof in accordance
with existing laws and regulations. [30] It likewise held that
Borbajo had not complied with the requisites of a compulsory
easement of right-of-way and pointed out the general rule
that mere convenience for the dominant estate is not what is
required by law as the basis for setting up a compulsory
easement.[31] Hence, this instant judicial recourse.
Noticeably, the appellate court dwelt at length on the
question of whether Borbajo was the developer of
the Hidden View Subdivision I as she claimed. Apparently,
Borbajo submitted this point, with her focus set on the
provisions of P.D. No. 957, as amended, ordaining that road
lots may be titled only in the name of the owner of the
subdivision or its developer. In the process, however, the
Court of Appeals lost sight of the settled and decisive fact
that Borbajo is one of the registered co-owners of the road
lots along with Bongo. The evidence reveals that Borbajo
and Bongo were issued TCTs, all dated 30 July 1991, for the
three (3) road lots situated within the Hidden View
Subdivision I. These titles were issued pursuant to the Deed
of Absolute Sale dated 18 June 1991 which also mentioned
the road lots as such.
As a registered co-owner of the road lots, Borbajo is
entitled to avail of all the attributes of ownership under the
Civil Codejus utendi, fruendi, abutendi, disponendi et
vindicandi.[32]Article 428 of the New Civil Code is explicit that
the owner has the right to enjoy and dispose of a thing,
without other limitations than those established by law. A co-
owner, such as Borbajo, is entitled to use the property
owned in common under Article 486 of the Civil Code.
Therefore, respondents cannot close the road lots to prevent
Borbajo from using the same.
The Court of Appeals ruled that the road lots cannot
be sold to any person pursuant to P.D. No. 957, as
amended. It also pointed out that fraud is manifest in the
acquisition of titles thereto. However, it is a settled rule that a
Torrens title cannot be collaterally attacked.
It is a well-known doctrine that the issue as to whether
title was procured by falsification or fraud can only be raised
in an action expressly instituted for the purpose. A Torrens
title can be attacked only for fraud, within one year after the
date of the issuance of the decree of registration. Such
attack must be direct, and not by a collateral proceeding.
The title represented by the certificate cannot be changed,
altered, modified, enlarged, or diminished in a collateral
proceeding.[33] The certificate of title serves as evidence of
an indefeasible title to the property in favor of the person
whose name appears therein.[34]
However, in upholding the efficiency value of the
disputed titles for purposes of the present petition, we are
not foreclosing any future determination by appropriate
forum on the legality of Borbajos titles over the road lots.
Verily, a separate case for annulment of titles over the road
lots is now pending before the court. There are serious
allegations that the issuance of the TCTs over the road lots
was tainted with fraud as evidenced by alterations made on
the face of the certificates and discrepancies in the records
of the contract of absolute sale filed before the Office of the
Register of Deeds and the Notarial Division of the RTC of
Cebu City.[35] If the court finds that the titles of Borbajo were
obtained fraudulently, her right to the road lots ceases as
well as her right-of-way by virtue of said titles.
In the meantime, however, we are bound by the value
in law and the evidentiary weight of the titles in the name of
Borbajo. As long as the titles are not annulled, Borbajo
remains registered a co-owner and therefore her right to use
the road lots subsists.
Likewise, with Borbajo as a registered co-owner of the
road lots, it is utterly pointless to discuss whether she is
entitled to the easement of right of way. Both from the text of
Article 649[36] of the Civil Code and the perspective of
elementary common sense, the dominant estate cannot be
the servient estate at the same time. One of the
characteristics of an easement is that it can be imposed only
on the property of another, never on ones own property. An
easement can exist only when the servient and the dominant
estates belong to different owners. [37]
Borbajo, being a registered co-owner of the three (3)
road lots, is entitled to the injunctive relief.
The requisites to justify an injunctive relief are: (a) the
existence of a right in esse or the existence of a right to be
protected; and (b) the act against which injunction is to be
directed as a violation of such right. [38] A preliminary
injunction order may be granted only when the application
for the issuance of the same shows facts entitling the
applicant to the relief demanded. [39]A preliminary injunction is
not proper when its purpose is to take the property out of the
possession or control of one party and transfer the same to
the hands of another who did not have such control at the
inception of the case and whose legal title has not clearly
been established.[40]
One final note. Respondents in their Answer[41] neither
claimed nor asked for the right to regulate the use of the
road lots or that the road lots be donated to the Cebu City
Government. Thus, there was utterly no basis for the trial
court to include as it did its disposition along these lines in
the decretal portion of its decision.
WHEREFORE, the Decision of the Court of Appeals
dated 21 September 2001 is REVERSED and SET ASIDE
and the writ of preliminary injunction issued by the Regional
Trial Court of Cebu City, Branch 58, is made permanent,
subject to the final outcome of Civil Case No. 21239 pending
before the Regional Trial Court of Cebu City, Branch 9.
No costs.
SO ORDERED.
SPS. ELIZABETH DE LA CRUZ and ALFREDO DE LA
CRUZ, petitioners, vs. OLGA RAMISCAL
represented by ENRIQUE
MENDOZA, respondent.
DECISION
CHICO-NAZARIO, J.:
This petition for review assails (1) the
Resolution[1] dated 11 September 1998 of the Court of
Appeals which dismissed the appeal filed by petitioners from
the Decision dated 31 July 1997 of the Regional Trial Court
(RTC), Branch 91, Quezon City, for Demolition of Illegally
Constructed Structure, and (2) the Resolution [2] dated 05
March 1999 denying the subsequent motion for
reconsideration.
The following facts, as recapitulated by the trial court,
are undisputed.
Respondent OLGA RAMISCAL is the registered owner
of a parcel of land located at the corner of 18 th Avenue and
Boni Serrano Avenue, Murphy, Quezon City, covered by
Transfer Certificate of Title (TCT) No. 300302 of the Register
of Deeds for Quezon City.[3] Petitioners SPS. ELIZABETH
and ALFREDO DE LA CRUZ are occupants of a parcel of
land, with an area of eighty-five (85) square meters, located
at the back of Ramiscals property, and covered by TCT No.
RT-56958 (100547) in the name of Concepcion de la Pea,
mother of petitioner Alfredo de la Cruz.[4]
The subject matter of this case is a 1.10-meter wide by
12.60-meter long strip of land owned by respondent which is
being used by petitioners as their pathway to and from
18th Avenue, the nearest public highway from their property.
Petitioners had enclosed the same with a gate, fence, and
roof.[5]
In 1976, respondent leased her property, including the
building thereon, to Phil. Orient Motors. Phil. Orient Motors
also owned a property adjacent to that of respondents. In
1995, Phil. Orient Motors sold its property to San Benito
Realty. After the sale, Engr. Rafael Madrid prepared a
relocation survey and location plan for both contiguous
properties of respondent and San Benito Realty. It was only
then that respondent discovered that the aforementioned
pathway being occupied by petitioners is part of her
property.[6]
Through her lawyer, respondent immediately
demanded that petitioners demolish the structure
constructed by them on said pathway without her knowledge
and consent. As her letter dated 18 February 1995
addressed to petitioners went unheeded, the former referred
the matter to the Barangay for conciliation proceedings, but
the parties arrived at no settlement. Hence, respondent filed
this complaint with the RTC in Civil Case No. Q-95-25159,
seeking the demolition of the structure allegedly illegally
constructed by petitioners on her property. Respondent
asserted in her complaint that petitioners have an existing
right of way to a public highway other than the current one
they are using, which she owns. She prayed for the payment
of damages.[7]
 In support of the complaint, respondent presented TCT
No. RT-56958 (100547) covering the property denominated
as Lot 1-B in the name of Concepcion de la Pea, mother of
petitioner herein Alfredo de la Cruz. The aforesaid TCT
reveals that a portion of Lot 1-B, consisting of 85 square
meters and denominated as Lot 1-B-2, is being occupied by
petitioners. To prove that petitioners have an existing right of
way to a public highway other than the pathway which
respondent owns, the latter adduced in evidence a copy of
the plan of a subdivision survey for Concepcion de la Pea
and Felicidad Manalo prepared in 1965 and subdivision plan
for Concepcion de la Pea prepared in 1990. These
documents establish an existing 1.50-meter wide alley,
identified as Lot 1-B-1, on the lot of Concepcion de la Pea,
which serves as passageway from the lot being occupied by
petitioners (Lot 1-B-2), to Boni Serrano Avenue. [8]
On the other hand, petitioners, in their Answer,
admitted having used a 1.10-meter wide by 12.60-meter long
strip of land on the northern side of respondents property as
their pathway to and from 18th Avenue, the nearest public
highway from their property, but claimed that such use was
with the knowledge of respondent. [9]
Petitioners alleged in their Answer that in 1976,
respondent initiated the construction on her property of a
motor shop known as Phil. Orient Motors and they, as well
as the other occupants of the property at the back of
respondents land, opposed the construction of the perimeter
wall as it would enclose and render their property without
any adequate ingress and egress. They asked respondent to
give them a 1.50-meter wide and 40.15-meter long
easement on the eastern side of her property, which would
be reciprocated with an equivalent 1.50-meter wide
easement by the owner of another adjacent estate.
Respondent did not want to give them the easement on the
eastern side of her property, towards Boni Serrano Avenue
but, instead, offered to them the said 1.10-meter wide
passageway along the northern side of her property towards
18th Avenue, which offer they had accepted.  [10]
Petitioners additionally averred in their Answer that
they were made to sign a document stating that they waived
their right to ask for an easement along the eastern side of
respondents property towards Boni Serrano Avenue, which
document was among those submitted in the application for
a building permit by a certain Mang Puling, [11] the person in
charge of the construction of the motor shop. That was why,
according to petitioners, the perimeter wall on respondents
property was constructed at a distance of 1.10-meters offset
and away from respondents property line to provide a
passageway for them to and from 18 th Avenue. They
maintained in their Answer that respondent knew all along of
the 1.10-meter pathway and had, in fact, tolerated their use
thereof.
On 31 July 1997, the RTC handed down a Decision,
[12]
 giving probative weight to the evidence adduced by
respondent. The decretal portion enunciates:
Plaintiffs claim for moral damages must be denied as no evidence
in support thereof was presented at all by her. Consequently,
plaintiff is not entitled to exemplary damages.[13] However, for
having been compelled to file this suit and incur expenses to
protect her interest, plaintiff is entitled to an attorneys fees in the
amount of P10,000.00.
WHEREFORE, premises considered, judgment is hereby rendered
in favor of the plaintiff and ordering the defendants to demolish the
structure built by them along the pathway on the eastern side of
plaintiffs property towards 18th Avenue, Murphy, Quezon City and
to pay [the] plaintiff the amount of P10,000.00 as and by way of
attorneys fees.
Costs against the defendants.[14]
The Court of Appeals dismissed the appeal filed by
petitioners from the RTC decision for failure to file brief
within the reglementary period. The fallo of the Court of
Appeals Decision, provides:
WHEREFORE, for failure of the defendants-appellants to file brief
within the reglementary period, the instant appeal is hereby
DISMISSED pursuant to Section 1(e), Rule 50 of the 1997 Rules
of Civil Procedure.
The Compliance/Explanation filed by defendants-appellants,
submitting the Letter-withdrawal of Atty. Judito Tadeo addressed
to the said defendants-appellants is NOTED.
Let a copy of this Resolution be likewise served on defendants-
appellants themselves.[15]
The motion for reconsideration filed by petitioners met
the same fate in the Resolution of the Court of Appeals
dated 05 March 1999.
Petitioners now lay their cause before us through the
present petition for review, raising the following issues:
A. WHETHER OR NOT THE DENIAL OF THE COURT OF
APPEALS OF THE PETITIONERS MOTION FOR
RECONSIDERATION OF ITS RESOLUTION DATED
SEPTEMBER 11, 1998 IS SANCTIONED BY THE RULINGS
AND LEGAL PRONOUNCEMENTS OF THE HONORABLE
SUPREME COURT?
B. WHETHER OR NOT THE PETITIONERS ARE
NONETHELESS ENTITLED TO A LEGAL EASEMENT OF
RIGHT OF WAY, ASSUMING NO VOLUNTARY RIGHT OF
WAY WAS GRANTED THEM BY THE RESPONDENT?
C. WHETHER OR NOT OPERATIVE EQUITABLE PRINCIPLE
OF LACHES TO BAR THE RESPONDENT FROM DEPRIVING
THE PETITIONERS CONTINUED USE OF THE SAID RIGHT
OF WAY?[16]
The issues rivet on the adjective as well as on the
substantive law, specifically: (1) whether or not the Court
Appeals erred in dismissing the appeal filed by petitioners for
failure to file appellants brief on time, (2) whether or not
petitioners are entitled to a voluntary or legal easement of
right of way, and (3) whether or not respondent is barred by
laches from closing the right of way being used by
petitioners.
On the first issue, petitioners assert positively that the
petition was filed on time on 30 April 1998, which is well
within the 45-day period reckoned from 17 March 1998,
when the secretary of their former counsel received the
notice to file appeal.
Petitioners arguments fail to persuade us.
Press earnestly as they would, the evidence on record,
nevertheless, evinces contrariety to petitioners assertion that
they have beat the 45-day period to file appellants brief
before the appellate court. It is clear from the registry return
receipt card[17] that the Notice to File Brief was received on
12 March 1998 by one May Tadeo from the Office of Atty.
Judito Angelo C. Tadeo, petitioners previous counsel. Thus,
on 30 April 1998, when their new counsel entered his
appearance and at the same time filed an appellants brief,
the 45 days have run out. For failure of petitioners to file brief
within the reglementary period, the Court of Appeals
correctly dismissed said appeal pursuant to Section 1(b),
Rule 50 of the 1997 Rules of Civil Procedure.[18]
Neither can the members of this Court lend credence
to petitioners contention that the written note of Atty. Tadeos
office on the face of the Order reads that the said office
received it on 17 March 1998.[19]
It is a rule generally accepted that when the service is
to be made by registered mail, the service is deemed
complete and effective upon actual receipt by the addressee
as shown by the registry return card.[20] Thus, between the
registry return card and said written note, the former
commands more weight. Not only is the former considered
as the official record of the court, but also as such, it is
presumed to be accurate unless proven otherwise, unlike a
written note or record of a party, which is often self-serving
and easily fabricated. Further, this error on the part of the
secretary of the petitioners former counsel amounts to
negligence or incompetence in record-keeping, which is not
an excuse for the delay of filing.
Petitioners justification that their former counsel
belatedly transmitted said order to them only on 20 March
1998 is not a good reason for departing from the established
rule. It was the responsibility of petitioners and their counsel
to devise a system for the receipt of mail intended for them.
[21]
 Rules on procedure cannot be made to depend on the
singular convenience of a party.
Petitioners next take the stand that even assuming the
brief was filed late, the Court of Appeals still erred in
dismissing their petition in light of the rulings of this Court
allowing delayed appeals on equitable grounds.[22] Indeed, in
certain special cases and for compelling causes, the Court
has disregarded similar technical flaws so as to correct an
obvious injustice made.[23] In this case, petitioners, however,
failed to demonstrate any justifiable reasons or meritorious
grounds for a liberal application of the rules. We must remind
petitioners that the right to appeal is not a constitutional,
natural or inherent right - it is a statutory privilege and of
statutory origin and, therefore, available only if granted or
provided by statute.[24] Thus, it may be exercised only in the
manner prescribed by, and in accordance with, the
provisions of the law.[25]
Anent the second issue, an easement or servitude is a
real right, constituted on the corporeal immovable property of
another, by virtue of which the owner has to refrain from
doing, or must allow someone to do, something on his
property, for the benefit of another thing or person. [26] The
statutory basis for this right is Article 613, in connection with
Article 619, of the Civil Code, which states:
Art. 613. An easement or servitude is an encumbrance imposed
upon an immovable for the benefit of another immovable
belonging to a different owner.
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
The immovable in favor of which the easement is established is
called the dominant estate; that which is subject thereto, the
servient estate.
Art. 619. Easements are established either by law or by the will of
the owners. The former are called legal and the latter voluntary
easements.
Did respondent voluntarily accord petitioners a right of
way?
We rule in the negative. Petitioners herein failed to
show by competent evidence other than their bare claim that
they and their tenants, spouses Manuel and Cecilia Bondoc
and Carmelino Masangkay, entered into an agreement with
respondent, through her foreman, Mang Puling, to use the
pathway to 18th Avenue, which would be reciprocated with
an equivalent 1.50-meter wide easement by the owner of
another adjacent estate. The hands of this Court are tied
from giving credence to petitioners self-serving claim that
such right of way was voluntarily given them by respondent
for the following reasons:
First, petitioners were unable to produce any shred of
document evidencing such agreement. The Civil Code is
clear that any transaction involving the sale or disposition of
real property must be in writing. [27] Thus, the dearth of
corroborative evidence opens doubts on the veracity of the
naked assertion of petitioners that indeed the subject
easement of right of way was a voluntary grant from
respondent. Second, as admitted by the petitioners, it was
only the foreman, Mang Puling, who talked with them
regarding said pathway on the northern side of respondents
property. Thus, petitioner Elizabeth de la Cruz testified that
she did not talk to respondent regarding the arrangement
proposed to them by Mang Puling despite the fact that she
often saw respondent.[28] It is, therefore, foolhardy for
petitioners to believe that the alleged foreman of respondent
had the authority to bind the respondent relating to the
easement of right of way. Third, their explanation that said
Mang Puling submitted said agreement to the Quezon City
Engineers Office, in connection with the application for a
building permit but said office could no longer produce a
copy thereof, does not inspire belief. As correctly pointed out
by the trial court,[29] petitioners should have requested a
subpoena duces tecum from said court to compel the
Quezon City Engineers Office to produce said document or
to prove that such document is indeed not available.
The fact that the perimeter wall of the building on
respondents property was constructed at a distance of 1.10
meters away from the property line, does not by itself bolster
the veracity of petitioners story that there was indeed such
an agreement. Further, as noted by the trial court, it was
Atty. Federico R. Onandia, counsel of Phil. Orient Motors,
who wrote petitioners on 25 August 1994 advising them that
his client would close the pathway along 18 th Avenue,
thereby implying that it was Phil. Orient Motors, respondents
lessee, which tolerated petitioners use of said pathway.[30]
Likewise futile are petitioners attempts to show that
they are legally entitled to the aforesaid pathway under
Article 649 of the Civil Code, to wit:
outlet to a public highway, is entitled to demand a right of way
through the neighboring estates, after payment of the proper
indemnity.
 The conferment of a legal easement of right of way
under Article 649 is subject to proof of the following
requisites: (1) it is surrounded by other immovables and has
no adequate outlet to a public highway; (2) payment of
proper indemnity; (3) the isolation is not the result of its own
acts; (4) the right of way claimed is at the point least
prejudicial to the servient estate; and (5) to the extent
consistent with the foregoing rule, where the distance from
the dominant estate to a public highway may be the shortest.
[31]
 The first three requisites are not obtaining in the instant
case.
Contrary to petitioners contention, the trial court found
from the records that Concepcion de la Pea had provided
petitioners with an adequate ingress and egress towards
Boni Serrano Avenue. The trial court, gave weight to TCT
No. RT-56958 (100547) covering the property denominated
as Lot 1-B in the name of Concepcion de la Pea, mother of
petitioner herein Alfredo de la Cruz. Said TCT indicates that
a portion of Lot 1-B, consisting of 85 square meters and
denominated as Lot 1-B-2, is the one being occupied by
petitioners.[32] In this connection, a copy of the plan of a
subdivision survey for Concepcion de la Pea and Felicidad
Manalo prepared in 1965 and subdivision plan for
Concepcion de la Pea prepared in 1990 revealed an existing
1.50-meter wide alley, identified as Lot 1-B-1, on the lot of
Concepcion de la Pea, which serves as passageway from
the lot being occupied by petitioners (Lot 1-B-2) to Boni
Serrano Avenue.[33] During the trial, petitioner Elizabeth de la
Cruz herself admitted knowledge of the existence of the
subdivision plan of Lot 1-B prepared for Concepcion de la
Pea by Engr. Julio Cudiamat in 1990. The Subdivision Plan
subdivided Lot 1-B into three portions, namely:
(1)         Lot 1-B-1, which is an existing alley,
consisting of 59.60 square meters,
towards Boni Serrano Avenue;
(2)         Lot 1-B-2, consisting of 85.20
square meters, which is being
occupied by petitioners; and
(3)         Lot 1-B-3, consisting also of 85.20
square meters, which is being
occupied by the sister of petitioner
Alfredo dela Cruz.[34]
From petitioner Elizabeth de la Cruzs own admission,
Lot 1-B-1 was intended by the owner, Concepcion de la Pea,
to serve as an access to a public highway for the occupants
of the interior portion of her property. [35] Inasmuch as
petitioners have an adequate outlet to a public highway
(Boni Serrano Avenue), they have no right to insist on using
a portion of respondents property as pathway towards
18th Avenue and for which no indemnity was being paid by
them.
Petitioner Elizabeth de la Cruz claimed before the trial
court that although there was indeed a portion of land
allotted by Concepcion de la Pea to serve as their ingress
and egress to Boni Serrano Avenue, petitioners can no
longer use the same because de la Pea had constructed
houses on it. As found by the trial court, the isolation of
petitioners property was due to the acts of Concepcion de la
Pea, who is required by law to grant a right of way to the
occupants of her property. In the trial courts rationale:
Article 649 of the Civil Code provides that the easement of right of
way is not compulsory if the isolation of the immovable is due to
the proprietors own acts. To allow defendants access to plaintiffs
property towards 18th Avenue simply because it is a shorter route
to a public highway, despite the fact that a road right of way,
which is even wider, although longer, was in fact provided for
them by Concepcion de la Pea towards Boni Serrano Avenue
would ignore what jurisprudence has consistently maintained
through the years regarding an easement of right of way, that mere
convenience for the dominant estate is not enough to serve as its
basis. To justify the imposition of this servitude, there must be a
real, not a fictitious or artificial necessity for it. In Francisco vs.
Intermediate Appellate Court, 177 SCRA 527, it was likewise held
that a person who had been granted an access to the public
highway through an adjacent estate cannot claim a similar
easement in an alternative location if such existing easement was
rendered unusable by the owners own act of isolating his property
from a public highway, such as what Concepcion de la Pea
allegedly did to her property by constructing houses on the 1.50
meter wide alley leading to Boni Serrano Avenue. And, if it were
true that defendants had already bought Lot 1-B-2, the portion
occupied by them, from Concepcion de la Pea, then the latter is
obliged to grant defendants a right of way without indemnity.[36]
We hasten to add that under the above-quoted Article
649 of the Civil Code, it is the owner, or any person who by
virtue of a real right may cultivate or use any immovable
surrounded by other immovable pertaining to other persons,
who is entitled to demand a right of way through the
neighboring estates. In this case, petitioners fell short of
proving that they are the owners of the supposed dominant
estate. Nor were they able to prove that they possess a real
right to use such property. The petitioners claim to have
acquired their property, denominated as Lot 1-B-2, from
Concepcion de la Pea, mother of defendant Alfredo de la
Cruz, who owns Lot 1-B-3, an adjacent lot. However, as
earlier noted, the trial court found that the title to both lots is
still registered in the name of Concepcion de la Pea under
TCT No. RT-56958 (100547). [37] Neither were petitioners
able to produce the Deed of Sale evidencing their alleged
purchase of the property from de la Pea. Hence, by the bulk
of evidence, de la Pea, not petitioners, is the real party-in-
interest to claim a right of way although, as explained earlier,
any action to demand a right of way from de la Peas part will
not lie inasmuch as by her own acts of building houses in the
area allotted for a pathway in her property, she had caused
the isolation of her property from any access to a public
highway.
On the third issue, petitioners cannot find sanctuary in
the equitable principle of laches under the contention that by
sleeping on her right to reclaim the pathway after almost
twenty years, respondent has, in effect, waived such right
over the same. It is not just the lapse of time or delay that
constitutes laches. The essence of laches is the failure or
neglect, for an unreasonable and unexplained length of time,
to do that which, through due diligence, could or should have
been done earlier, thus giving rise to a presumption that the
party entitled to assert it had either abandoned or declined to
assert it.[38]
The essential elements of laches are: (a) conduct on
the part of the defendant, or of one under whom he claims,
giving rise to the situation complained of; (b) delay in
asserting complainants rights after he had knowledge of
defendants acts and after he has had the opportunity to sue;
(c) lack of knowledge or notice by defendant that the
complainant will assert the right on which he bases his suit;
and (d) injury or prejudice to the defendant in the event the
relief is accorded to the complainant. [39]
The second and third elements, i.e., knowledge of
defendant's acts and delay in the filing of such suit are
certainly lacking here. As borne by the records, it was only in
1995 that respondent found out that the pathway being used
by petitioners was part of her property when a relocation
survey and location plan of her property and the adjacent
land bought by San Benito Realty were prepared. [40] She
immediately demanded petitioners to demolish the structure
illegally constructed by them on her property without her
knowledge and consent. As her letter dated 18 February
1995 addressed to petitioners fell on deaf ears, and as no
settlement was arrived at by the parties at
the Barangay level, respondent seasonably filed her
complaint with the RTC in the same year.[41]
Respondent, in her Comment, [42] brings the Courts
attention to petitioners conversion of the pathway, subject
matter of this case, into a canteen and videoke bar, as
shown by the pictures [43] showing the property bearing the
signage, FREDS[44] CANTEEN/VIDEOKE KAMBINGAN.
Respondent, likewise, complains in her Comment about the
structures installed by petitioners that encroached on
respondents property line as a result of the commercial
activities by petitioners on the disputed property. Petitioners
have implicitly admitted this conversion of the propertys use
by their silence on the matter in their Reply [45] and
Memorandum.[46] Such conversion is a telltale sign of
petitioners veiled pecuniary interest in asserting a right over
the litigated property under the pretext of an innocuous claim
for a right of way.
Viewed from all angles, from the facts and the law, the
Court finds no redeeming value in petitioners asseverations
that merit the reversal of the assailed resolutions.
WHEREFORE, the instant petition is DENIED. The
Resolutions dated 11 September 1998 and 5 March 1999 of
the Court of Appeals in CA-G.R. SP No. 68216 are
AFFIRMED. The Decision dated 31 July 1997 of the
Regional Trial Court is likewise UPHELD. Costs against
petitioners.
SO ORDERED.
Puno, (Chairman), Austria-Martinez, Callejo,
Sr., and Tinga, JJ., concur
SPA. DE LA CRUZ v. RAMISCALG.R. No.
137882February 4, 2005
 Facts:Respondent Olga Ramiscal is the registered owner
of a parcel of land. Petitioner, Spa. Elizabeth and Alfredo
De La Cruzare occupants of a parcel of land located at
the back of
Ramiscal’s property
, owned by the mother of Alfredo. Thesubject matter of
this case is a long strip of land owned by respondent
which is being used by petitioners as theirpathway to and
from the nearest public highway from their
property.Respondent leased her property, including
the building thereon, to Phil. Orient Motors. Phil. Orient
Motors also owned a
property adjacent to that of respondent’s.
 Years later, Phil. Orient Motors sold its property to San
Benito Realty. It wasonly during the relocation survey and
location plan for both contiguous properties of
respondent and San Benito Realtythat respondent
discovered that the aforementioned pathway being
occupied by petitioners is part of her
property.Respondent filed a complaint, seeking the
demolition of the structure allegedly illegally constructed
by petitioners onher property. Respondent asserted in
her complaint that petitioners have an existing right of
way to a public highwayother than the current one they
are using, which she owns.Petitioners claimed that such
use was with the knowledge of respondent. They also
alleged that respondent initiated theconstruction on her
property of a motor shop known as Phil. Orient Motors
and they, as well as the other occupants ofthe property
at the bac
k of respondent’s land, opposed the construction of the
perimeter wall as it would enclose and
render their property without any adequate ingress and
egress. They asked respondent to give them an easement
onthe eastern side of her property, which would be
reciprocated with an easement by the owner of another
adjacentestate. Respondent did not want to give them
the easement on the eastern side of her property but,
instead, offered tothem the disputed passageway, which
offer they had accepted.Issue: W/N Petitioners are
entitled to a voluntary or legal easement of right of
wayRuling:An easement or servitude is a real right,
constituted on the corporeal immovable property of
another, by virtue of whichthe owner has to refrain from
doing, or must allow someone to do, something on
his property, for the benefit of anotherthing or
person.Petitioners herein failed to show by competent
evidence other than their bare claim that they entered
into anagreement with respondents. The hands of this
Court are
tied from giving credence to petitioners’ self 
-serving claim thatsuch right of way was voluntarily given
them by respondent for the following reasons:First,
petitioners were unable to produce any shred of
document evidencing such agreement. The Civil Code is
clear thatany transaction involving the sale or disposition
of real property must be in writing. Thus, the dearth of
corroborativeevidence opens doubts on the veracity of
the naked assertion of petitioners that indeed the
subject easement of right ofway was a voluntary grant
from respondent. Second, as admitted by the petitioners,
it was only the foreman, Mang
Puling, who talked with them regarding said pathway on the northern
side of respondent’s property. Thus, petitioner
Elizabeth de la Cruz testified that she did not talk to
respondent regarding the arrangement proposed to them
by MangPuling despite the fact that she often saw
respondent. It is, therefore, foolhardy for petitioners to
believe that thealleged foreman of respondent had the
authority to bind the respondent relating to the
easement of right of way. Third,
their explanation that said Mang Puling submitted said agreement to
the Quezon City Engineer’s Office, in connection
with the application for a building permit but said office
could no longer produce a copy thereof, does not inspire
belief.P
etitioners should have requested a subpoena duces tecum from said
court to compel the Quezon City Engineer’s Office
De La Cruz vs. Ramiscal
G.R. No. 137882, February 4, 2005
Facts:
Respondent Ramiscal is the registered owner of a
parcel of land located at the corner of 18th Avenue and Boni
Serano Avenue, Murphy, Quezon City. Petitioner-spouses
are occupants of a parcel of land located at the back of
Ramiscal’s property owned by Concepcion de la Pena,
mother of petitioner Alfredo de la Cruz. The subject matter
of this case is a 1.10m wide by 12.60m long strip of land
owned by respondent which is being used by petitioners as
their pathway to and from 18th Avenue, the nearest public
highway from their property. Petitioner had enclosed the
same with a gate, fence and roof. In 1995, a relocation
survey and location plan for the respondent’s properties
were prepared and it was only then that respondent
discovered that the pathway being occupied by petitioners is
part of her property. Respondent immediately demanded
that the petitioners demolish the structure constructed by
them on said pathway without her consent but such demand
was unheeded.
Issues:
(1) Whether or not the petitioners are entitled to
a voluntary or legal easement of right of way.
(2) Whether or not respondent is barred by
laches from closing the right of way being
used by petitioners.
Held:
(1) Petitioners are entitled neither to a voluntary
nor legal easement of right of way.
Petitioners failed to show by competent
evidence other than their bare claim that they
and their tenants entered into an argument
with the respondent. Likewise futile are
petitioners attempt to show that they are
legally entitled to the pathway under Art. 649
of the Civil Code. The conferment of a legal
easement of right of way under this article is
subject to proof of the following: 1) It is
surrounded by other immovables and has no
adequate outlet to a public highway; 2)
payment of proper indemnity; 3) the isolation
is not the result of its own acts; 4) the right of
way claim is at the point that least prejudicial
to the servient estate; and 5) to the extent
consistent with the foregoing rule where the
distance from the dominant estate to a public
highway be the shortest. The first three
requirements are not present in the instant
case.
(2) Respondent is not barred by laches from
closing the right of way being used by
petitioners. Laches is not applicable here
since there was no knowledge on the part of
the respondent’s act for it was only in 1995
that she found out that the pathway being
used by the petitioners was part of her
property. Further, delay in the filing of suit is
not a valid contention in this case for
respondent immediately demanded
petitioners to demolish their property and
reasonably filed in complaint.
to produce said document or to prove that
G.R. No. 158141             July 11, 2006
FAUSTO R. PREYSLER, JR., petitioner, 
vs.
COURT OF APPEALS and FAR EAST ENTERPRISES,
INC., respondents.
DECISION
QUISUMBING, J.:
This petition for review assails the Decision1 dated January
20, 2003 and Resolution2 dated May 20, 2003 of the Court of
Appeals in CA-G.R. SP No. 52946. The Court of Appeals
lifted the amended writ of preliminary injunction dated
December 29, 1998 issued by the Regional Trial Court,
Branch 14 of Nasugbu, Batangas in Civil Case No. 345 and
reinstated the original writ dated December 12, 1996.
The antecedent facts are as follows:
Private respondent Far East Enterprises, Inc., owns Tali
Beach Subdivision. Petitioner Fausto Preysler, Jr. and his
wife owned lots therein and also two parcels of land adjacent
to the subdivision. These two parcels were bounded on the
North and West by the China Sea and on the East and
South by the subdivision. To gain access to the two parcels
petitioner has to pass through private respondent's
subdivision. Petitioner offered P10,000 for the easement of
right of way but private respondent refused it for being
grossly inadequate. Private respondent then barricaded the
front gate of petitioner's property to prevent petitioner and his
family from using the subdivision roads to access said
parcels.
The petitioner filed, with the Regional Trial Court of
Nasugbu, Batangas, a Complaint for Right of Way with
prayer for preliminary prohibitive injunction against private
respondent. After due hearing, the trial court, in an Order
dated November 5, 1996, held that barricading the property
to prevent the petitioner from entering it deprived him of his
ownership rights and caused irreparable damage and
injuries. It ordered herein private respondent:
1) To remove or cause or allow the removal of the
barricade (six concrete posts) installed by it on the
front gate of the plaintiffs' properties fronting Sea
Cliff Drive;
2) To cease, desist and refrain from obstructing or
hindering plaintiffs' entry into and exit from their
subject properties and/or their free passage over
Sea Cliff Drive from and to the public highway
near the gate of the Tali Beach Subdivision
pending termination of this litigation on the merits
and/or unless a contrary order is issued
henceforth.3
Accordingly, the writ of preliminary injunction was issued on
December 12, 1996.
On July 8, 1998, petitioner used the subdivision road to
transport heavy equipment and construction materials to
develop his property. Consequently, private respondent
moved to dissolve the writ claiming that the petitioner
violated its right to peaceful possession and occupation of
Tali Beach Subdivision when petitioner brought in heavy
equipment and construction materials. Private respondent
maintained that the damages that may be caused to it far
outweigh the alleged damages sought to be prevented by
the petitioner. It alleged that there is an alternate route
available to petitioner, particularly the barangay road leading
to Balaytigue and the Calabarzon Road.
For his part, the petitioner moved to clarify the December 12,
1996 writ and asked the court to clearly define the action
required of private respondent to avert further damage and
inconvenience to petitioner. Petitioner prayed that his
connecting subdivision roads, from and to the
public highway near the gate of the Tali Beach
Subdivision, pending the termination of this
litigation on the merits and/or unless a contrary
order is issued henceforth.
3. To cease, desist and refrain from hindering or
obstructing plaintiffs' contractors, guests, visitors
and other authorized persons to bring along with
them their motor vehicles, equipments, materials,
supplies, machineries and other items necessary
for the needs of the plaintiffs' properties.
4. To cease, desist and refrain from hindering or
obstructing the plaintiffs and/or persons authorized
by them, to install electric power lines over the Tali
Beach Subdivision for plaintiffs' electric power
requirements.4
Private respondent filed a petition for certiorari with the Court
of Appeals, which set aside the amended writ dated
December 29, 1998 and reinstated the original writ dated
December 12, 1996 with modification as to the amount of the
bond. The petitioner moved for reconsideration, but the
same was denied.
Petitioner now comes before us claiming that the Court of
Appeals:
I GENERAL, AND LEGAL EASEMENT OF RIGHT
… [GRAVELY] ERRED IN FINDING AND
CONCLUDING THAT THE TRIAL COURT
COMMITTED GRAVE ABUSE OF DISCRETION
IN ISSUING: (1) THE JOINT RESOLUTION
DATED 29 DECEMBER 1998, … (2) THE
AMENDED WRIT OF PRELIMINARY
INJUNCTION (MANDATORY AND
PROHIBITORY) OF EVEN DATE … AND (3) THE
ORDER DATED 8 MARCH 1999 DENYING THE
MOTION FOR RECONSIDERATION TO
RECONSIDER AND SET ASIDE THE JOINT
RESOLUTION.…
contractors, visitors, and other representatives be allowed
access and persons he has authorized be allowed to install
power lines over private respondent's property.
On December 29, 1998, the trial court issued a Joint
Resolution amending the order in the original writ to read as
follows:
1. To remove or cause or allow the removal of the
barricade (six concrete posts) installed by it on the
front gate of the plaintiffs' properties fronting Sea
Cliff Drive.
2. To cease, desist and refrain from obstructing or
hindering plaintiffs' (including plaintiffs' visitors,
guests, contractors, and other persons authorized
by or acting for and/or under said plaintiffs) entry
into and exit from their subject properties and/or
their free passage over Sea Cliff Drive and other
II
… OVERSTEPPED THE BOUNDARY OF ITS
AUTHORITY AND JURISDICTION IN
RESOLVING FACTUAL MATTERS, HOWEVER,
ERRONEOUS, COULD NOT BE REVIEWED
UNDER THE EXTRAORDINARY WRIT OF
CERTIORARI BUT BY ORDINARY APPEAL,
INSTEAD OF CONFINING ITSELF TO
DETERMINE WHETHER OR NOT THE TRIAL
COURT COMMITTED GRAVE ABUSE OF
DISCRETION IN ISSUING THE JOINT
RESOLUTION, … THE AMENDED WRIT OF
PRELIMINARY INJUNCTION (MANDATORY AND
PROHIBITORY), … AND THE ORDER DATED 6
MARCH 1996 DENYING THE MOTION TO
RECONSIDER THE JOINT RESOLUTION….
III
… EXCEEDED ITS JURISDICTION AND
AUTHORITY IN SETTING ASIDE THE JOINT
RESOLUTION, … LIFTING THE AMENDED
WRIT OF PRELIMINARY INJUNCTION DATED
29 DECEMBER 1998, … AND RESTRICTING OR
LIMITING PASSAGE OVER THE TALI BEACH
SUBDIVISION ROADS TO INGRESS AND
EGRESS OF PETITIONER AND MEMBERS OF
THE LATTER'S HOUSEHOLD IN UTTER
VIOLATION OF THE LAW ON EASEMENT, IN
OF WAY IN PARTICULAR.5
Simply, the issue is whether there was a legal basis for the
issuance of the amended writ of injunction. Likewise, we
need to resolve whether the right of passage allowed in the
uncontested original writ applies not only to the petitioner
and his household, but also to his visitors, contractors,
construction workers, authorized persons, heavy equipment
machinery, and construction materials as well as the
installation of power lines.
Petitioner contends that inherent in the right of way under
Article 6496 of the New Civil Code is the right to cultivate and
develop the property, which is an attribute of ownership
provided under Article 428. 7 According to petitioner, the
passage of heavy equipment and construction materials
through the subdivision is granted by Article 656.8Petitioner
adds that he was not seeking the right of way only for
occasional visits to his property but also to develop, use and
enjoy it.
Private respondent claims that what was granted in the
original writ was not the easement of right of way but only
the maintenance of the status quo. It maintains that from the
very beginning, petitioner and his household were allowed
into the subdivision only because petitioner owned several
lots in the subdivision. Hence, according to private
respondent, the Court of Appeals properly dissolved the
amended writ as the status quo protected by the original writ
did not include the passage of construction workers in
petitioner's property outside the subdivision. Private
respondent stresses that at the time the original writ was
applied for there was no construction work yet.
Private respondent argues that its recognition of the original
writ should not be construed as admitting that petitioner had
a right of way; and with no easement of right of way,
petitioner cannot claim other rights under the law on
easement. It further contends that acts prohibited and
allowed under the amended writ amounted to a premature
adjudication on the merits of the main case on whether or
not petitioner has a right of way, which is still pending before
the trial court.
Prefatorily, we note that what was granted by the trial court
was the preliminary injunction, and that the main case for
right of way has not yet been settled. We have in previous
cases9 said that the objective of a writ of preliminary
injunction is to preserve the status quo until the merits of the
case can be fully heard. Status quo is the last actual,
peaceable and uncontested situation which precedes a
controversy.10 The Court of Appeals was correct in its
findings that the last actual, peaceful and uncontested
situation that preceded the controversy was solely the
access of petitioner and his household to his property
outside the subdivision for visits and inspections. At the time
the writ was applied for in 1995, there was still no
construction going on in the property. It was merely raw land.
The use of the subdivision roads for ingress and egress of
construction workers, heavy equipment, delivery of
construction materials, and installation of power lines, are
clearly not part of the status quo in the original writ. Along
this line, the Court of Appeals properly set aside the
amended writ and reinstated the original writ.
However, under Article 656 of the New Civil Code, if the right
of way is indispensable for the construction, repair,
improvement, alteration or beautification of a building, a
temporary easement is granted after payment of indemnity
for the damage caused to the servient estate. In our view,
however, "indispensable" in this instance is not to be
construed literally. Great inconvenience is sufficient. 11 In the
present case, the trial court found that irrespective of which
route petitioner used in gaining access to his property, he
has to pass private respondent's subdivision. Thus we agree
that petitioner may be granted a temporary easement. This
temporary easement in the original writ differs from the
permanent easement of right of way now being tried in the
main case.
The law provides that temporary easement is allowed only
after the payment of the proper indemnity. As there are
neither sufficient allegations nor established facts in the
record to help this Court determine the proper amount of
indemnity, it is best to remand the case to the trial court for
such determination.
Additionally, we find that the installation of electric power
lines is a permanent easement not covered by Article 656.
Article 656 deals only with the temporary easement of
passage. Neither can installation of electric power lines be
subject to a preliminary injunction for it is not part of
the status quo. Besides, more damage would be done to
both parties if the power lines are installed only to be
removed later upon a contrary judgment of the court in the
main case.
WHEREFORE, the petition is PARTIALLY GRANTED.
We hereby order (a) private respondent to allow the right of
passage thru the subdivision by the petitioner's visitors and
guests, contractors, construction workers, heavy equipment
vehicles, and delivery construction materials; and (b)
petitioner to pay private respondent the indemnity therefor to
be determined by the trial court. The case is
hereby REMANDED to the trial court for the determination of
the proper amount of indemnity for the temporary easement
under Article 649.
No pronouncement as to costs.
SO ORDERED.
Carpio, Carpio-Morales, Tinga, Velasco, Jr., J.J., concur.
FAUSTO R. PREYSLER, JR., petitioner, vs.
COURT OF APPEALS and FAR EAST ENTERPRISES,
INC.,respondents.G.R. No. 158141 July 11, 2006
FACTS: Petitioner Fausto Preysler, Jr. and his wife
owned lots in the Tali Beach Subdivision and also
twoparcels of land adjacent to the subdivision. The
subdivision was owned by respondent Far
EastEnterprises, Inc.To gain access to the two parcels
petitioner has to pass through private
respondent'ssubdivision. Petitioner offered P10,000 for
the easement of right of way but private respondent
refusedit for being grossly inadequate. Hence, the latter
barricaded the front gate of petitioner's property
toprevent petitioner and his family from using
the subdivision roads to access said parcels.Petitioner then
filed with the RTC a Complaint for Right of Way with prayer for
preliminaryprohibitive injunction against private
respondent. The trial court issued an Order for private
respondent
to remove the barricade and refrain from hindering petitioner’s entry
and exit from the subjectproperties and for the free passage
of petitioner in the subdivision of private respondent
pending thelitigation.Sometime thereafter, petitioner
used the subdivision road to transport heavy equipment
andconstruction materials to develop his property.
Consequently, private respondent moved to dissolve
thewrit of preliminary injunction claiming that the
petitioner violated its right to peaceful possession
andoccupation of Tali Beach Subdivision when petitioner
brought in heavy equipment and constructionmaterials. On
the other hand, petitioner prayed that his contractors, visitors, and
other representativesbe allowed access and persons he has authorized
be allowed to install power lines over privaterespondent's
property. The
trial court amended the writ granting petitioner’s prayer.
 On appeal, the Court of Appeals set aside the amended writ and
reinstated the original writ.ISSUE: Whether or not the right of
passage allowed in the uncontested original writ applies not only tothe
petitioner and his household, but also to his visitors,
contractors, construction workers, authorizedpersons,
heavy equipment machinery, and construction materials as
well as the installation of powerlines.HELD: The Court
partially granted the petition. It held that the writ issued by the trial
court is to preservestatus quo. Necessarily, it does not cover
the use of the subdivision roads for ingress and egress
ST. MICHAEL SCHOOL OF G.R. No. 166301
CAVITE, INC. and SPOUSES
CRISANTO S. CLAVERIA and Present:
GLORIA M. CLAVERIA,
Petitioners, QUISUMBING, J.,*
CARPIO, Acting Chairperson,
CARPIO MORALES,
AZCUNA,*
- versus - TINGA, and
VELASCO, JR., JJ.
MASAITO DEVELOPMENT Promulgated:
CORPORATION and REXLON
REALTY GROUP, INC.,
Respondents. February 29, 2008
x-------------------------------------------------------------------------------
----------x
 
DECISION
 
VELASCO, JR., J.:
 
The core issue in this petition for review under Rule 45 is what
constitutes a sufficient cause of action for a complaint for easement
of right-of-way. Petitioners assail the August 13, 2004
Resolution[1] of the Court of Appeals (CA) in CA-G.R. SP No.
85558, dismissing their petition for defective verification and
certification of non-forum shopping, and the November 23, 2004
[2]
CA Resolution  rejecting their plea for reconsideration. In effect,
the dismissal of petitioners complaint in Civil Case No. BCV-
2001-60 before the Bacoor, Cavite Regional Trial Court (RTC),
Branch 19 was upheld by the CA.
 
of construction workers, heavy equipment, delivery of
construction materials, and installation of powerlines since
there were no improvements introduced then. But under Article 656 of
the New Civil Code, if the right of way is indispensable for
the construction, repair, improvement, alteration or
beautificationof a building, a temporary easement is granted after
payment of indemnity for the damage caused tothe servient
estate.In the present case, the trial court found that irrespective of
which route petitioner used ingaining access to his property, he
has to pass private respondent's subdivision. Thus,
petitioner may begranted a temporary easement after the
payment of the proper indemnity. Hence, the court orderedprivate
respondent to allow the right of passage thru the
subdivision by the petitioner's visitors andguests,
contractors, construction workers, heavy equipment vehicles, and
delivery constructionmaterials. But the Court did not allow
the installation of electric power lines because it is a
permanenteasement which is not covered by Article 656.
Petitioner St. Michael School of Cavite, Inc. (St.
Michael) is a duly registered non-stock corporation[3] owned by
petitioners-spouses Crisanto S. Claveria and Gloria M. Claveria. It
is represented by petitioner Gloria M. Claveria. Respondents
Masaito Development Corporation (Masaito) and Rexlon Realty
Group, Inc. (Rexlon) are domestic corporations that own, operate,
and manage Citihomes Molino IV, Bacoor, Cavite (Citihomes). St.
Michael is located outside the northern perimeter fence of
Citihomes. Its passageway occupies a portion of the 61-square
meter lot described as Lot 4, Block 7, Phase 1 of Citihomes. The
gate to the school is located at the subdivisions northern perimeter
fence and is the only entrance and exit for the entire school
population.
 
On July 28, 1998, Rexlon informed petitioners that the value of the
Citihomes lots when fully developed was PhP 3,872 per square
meter as appraised by the Home Insurance and Guarantee
Corporation.[4] In a letter dated January 29, 2001, Masaito advised
petitioners to purchase Lots 1-9, Block 7, Phase 1, fronting the
school at PhP 3,579,000.[5] On April 6, 2001, Masaito sent another
offer to sell Lot 4, Block 7 of the subdivision with the right-of-way
through the private roads/drainage facilities of Citihomes at the
price of PhP 2 Million. Petitioners refused both proposals,
reasoning that the school did not need the entire area mentioned in
the first proposal. St. Michael also said that the second offer was Petitioners filed before the CA a petition for certiorari with prayer

grossly overpriced. for issuance of a TRO and/or writ of preliminary injunction under

Petitioners, with four other homeowners, filed a complaint against Rule 65, seeking to annul and set aside the May 5, 2004 RTC

respondents before the Bacoor, Cavite RTC, Branch 19 entitled St. Order. The CA dismissed the petition. In its August 13,

Michael School of Cavite, Inc., Spouses Crisanto S. Claveria and 2004 Resolution, the CA held that the petition for certiorari was

Gloria M. Claveria, Pancho R. Navo, Vivencio B. Asuncion, dismissible for the following infirmities:
 
Isaurito S. Hernandez and Elias Namit v. Masaito Development 1. The verification and certification of non-
forum shopping [did] not fully comply
Corporation and Rexlon Realty Group, Inc. for easement of right- with [Section 4, Rule 7] of the Rules of
Court, because it failed to give the
of-way with damages under Article 649 of the Civil Code and assurance that the allegations of the
petition are true and correct based on
preliminary injunction and/or temporary restraining order (TRO). authentic records.
 
  2) [S]aid verification and certification was
signed by petitioner Gloria M.
The trial court issued a TRO on June 5, 2001[6] for 72 Claveria in behalf of her co-petitioners
without the accompanying special
hours which was extended to June 24, 2001 through the June 13, power of attorney or board resolution
authorizing her to sign the same x x x;
2001[7] Order enjoining respondents from blocking the passageway and
 
and school gate of St. Michael. On July 17, 2001, respondents filed 3) Counsel for petitioners failed to indicate
his Roll of Attorneys Number x x x.[11]
a motion to dismiss on the ground that petitioners failed to state a
 
cause of action against them.
On September 6, 2004, petitioners filed an Urgent Motion for
 
Reconsideration,[12] which the CA denied.[13] Hence, we have this
On July 29, 2002, the RTC issued an order,
[8] petition that raises the following issues:
 dismissing for lack of cause of action the complaint as to Pancho (a)
 
R. Navo, Vivencio Asuncion, Isaurito S. Hernandez, and Elias
THE HONORABLE COURT OF
APPEALS SERIOUSLY ERRED IN ITS
Namit, as plaintiffs a quo, and denying petitioners application for
INTERPRETATION AND APPLICATION
OF SECTION 4, RULE 7 OF THE 1997
issuance of a writ of preliminary injunction.
RULES OF CIVIL PROCEDURE WHICH,
  ACCORDING TO ITS
INTERPRETATION, REQUIRES
On October 9, 2002, respondents filed a motion for PETITIONERS TO STILL SUBMIT AN
AMENDED VERIFICATION STATING
partial reconsideration of the July 29, 2002 RTC Order, on the THEREIN THAT THE ALLEGATIONS
OF THE PETITION ARE TRUE AND
grounds that (1) St. Michael was not a real party in interest; and (2) CORRECT NOT ONLY OF THEIR
PERSONAL KNOWLEDGE BUT ALSO
petitioners-spouses failed to state a cause of action. BASED ON AUTHENTIC RECORDS
DESPITE CLEAR COMPLIANCE BY
  PETITIONERS OF THE SAID
PROCEDURAL REQUIREMENT
On September 25, 2003, the trial court granted respondents partial THROUGH THE SUBMISSION OF THE
THREE (3) DOCUMENTS ATTACHED
motion for reconsideration and likewise dismissed the complaint of TO THEIR URGENT MOTION FOR
RECONSIDERATION DATED
St. Michael and spouses Claverias for failure to state a cause of SEPTEMBER 6, 2004.
 
action.[9] Petitioners filed an omnibus motion/motion for (b)
 
reconsideration on December 18, 2003, reiterating their defenses, THE HONORABLE COURT OF
APPEALS ERRED IN ITS FINDINGS
which the RTC denied on May 5, 2004 for lack of merit.[10] THAT THE COURT A QUO DID NOT
COMMIT GRAVE ABUSE OF
 
 DISCRETION AMOUNTING TO LACK allegations in the petition are true and
OR EXCESS OF JURISDICTION; THAT correct not only of their personal
THE PETITION IS PATENTLY knowledge but also based on authentic
WITHOUT MERIT; AND THE records, the Court is constrained to deny
QUESTIONS RAISED THEREIN ARE their Motion for Reconsideration of said
TOO [UNSUBSTANTIAL] TO REQUIRE Resolution (emphasis supplied.)
CONSIDERATION, THE SAID  
FINDINGS BEING MERE  
CONCLUSIONS OF LAW
UNSUPPORTED BY ANY STATEMENT The CA erred.
OR FINDINGS OF FACT AND
CONTRADICTED BY THE PERTINENT Petitioners correctly point out that paragraph 3 of Sec. 4, Rule 7 of
PLEADINGS AND MOTIONS OF THE
CASE WHICH, IF PROPERLY the Rules of Court uses the conjunction or not and:
CONSIDERED, WILL JUSTIFY A  
DIFFERENT CONCLUSION AND  
DEMONSTRATE THAT PETITIONERS A pleading is verified by an
ARE NOT ONLY REAL PARTIES IN affidavit that the affiant has read the
INTEREST BUT HAVE VALID CAUSES pleading and that the allegations therein are
OF ACTION AGAINST RESPONDENTS. true and correct of his personal
[14] knowledge or based on authentic records x x
  x .A pleading required to be verified which
  contains a verification based on information
and belief, or lacks a proper verification,
In sum, the twin issues for our consideration are: (1) Did the CA shall be treated as an unsigned pleading.
 
err in dismissing the petition and ruling that Section 4, Rule 7 of  

the 1997 Rules of Civil Procedure still requires petitioners to Moreover, petitioners, in their September 6,

submit an amended verification that the allegations in the petition 2004 Urgent Motion for Reconsideration, attached the following:

are true and correct not only from their personal knowledge but  

also based on authentic records, even if they had already submitted (1) Affidavit executed by petitioner Gloria M. Claveria,

three other documents attached to their September 6, 2004 motion stating:

 
for reconsideration?; and (2) Did the CA err in finding that the trial  
1. That I am one of the petitioners in C.A.-
court did not commit grave abuse of discretion when it ruled that G.R. SP [No.] 85558 for Certiorari with
Preliminary Injunction and Temporary
the petition has no merit, that the questions raised were Restraining Order pending before the
Special Tenth Division of the Court of
unsubstantial, and that the findings were conclusions of law Appeals;
 
unsupported by facts and contradicted by the records? 2. That I hereby certify that I am duly
authorized by my husband Crisanto S.
On the first issue, petitioners aver that Gloria M. Claveria and the St. Michael School of
Cavite, Inc. who are my co-petitioners in the
Claveria is expressly authorized by her co-petitioners to represent said case, to sign for all petitioners, to file
said petition and represent them in the
them in filing the petition for certiorari with the CA, evidenced by proceedings;
 
her Affidavit,[15] a Special Power of Attorney, and Secretarys 3. That I further certify that I am one of the
Incorporators, a Trustee the incumbent
Certificate. They claim that there was no need for them to submit Treasurer and the Directress of the Saint
Michael School of Cavite, Inc.;
an Amended Verification as the three aforementioned documents  
4. That I am also the registered owner
satisfied the requirement.
together with my husband Crisanto S.
Claveria, of the two (2) parcels of land upon
 
which the said school stands and is a direct
party in interest in the case;
In its November 23, 2004 Resolution, the CA stated:
 
 
5. That I am the Founder of the said school,
Considering that petitioners did
managed, supervised and oversaw its
not cure the first deficiency mentioned in
operation from its opening up to the present
Our August 13, 2004 Resolution dismissing
and I have received, read and understood all
the petition by submitting an amended
the documents annexed to the said petition;
verification and stating therein that the
  
6. That I also participated in the collation Board Resolution authorizing Gloria M. Claveria to represent the
and completion of all the documents
attached as Annexes to the Petition for corporation. The submission of authorization, special power of
Certiorari filed before the Honorable Court
of Appeals and which were ALL previously attorney and certification issued by the corporate secretary is
submitted to the Regional Trial Court,
Branch 19 of Bacoor, Cavite and verified the considered substantial compliance of the requirements under Rule
truth and correctness of the contents of the
Petition from the records and files in my 7, Sec. 4 of the Revised Rules of Court. We thus hold that
possession. Thus, I attest to the truth and
correctness of the allegations of the said petitioners were able to substantially comply with the requirements
Petition of my own personal knowledge and
based on authentic documents.[16] under the Rules of Court.

(2) Special Power of Attorney[17] executed by petitioner  

Crisanto S. Claveria, authorizing his spouse, Gloria M. Claveria, to On the second issue. In its July 29, 2002 Order, the

represent him in the petition for certiorari with the CA, make, sign, RTC resolved respondents Motion to Dismiss by holding that

execute for and in his behalf all documents necessary to the case; plaintiffs Pancho Navo, Vivencio Asuncion, Isaurito Hernandez,

appear in court; and enter into a compromise agreement or and Elias Namit, as parents of some of the students in petitioners

alternative mode of dispute settlement; and school, have no cause of action to file the complaint for right-of-

  way. It ruled that the claimant in such an action must be the owner

(3) Secretarys Certificate[18] signed by Sanett M. of a dominant estate and as such, the parents were not real parties-

Claveria, Corporate Secretary of St. Michael, attesting that Mrs. in-interest.

Gloria M. Claveria is authorized to represent St. Michael as  

approved in a special meeting of the board of directors In its September 25, 2003 Order, the RTC resolved

dated September 1, 2004. respondents Motion for Reconsideration by ruling that St. Michael

  is not a registered owner of any property that is the subject matter

We have held that the requirement regarding of the easement case, hence not a real party-in-interest. It thus

verification of a pleading is intended to assure that the pleadings dismissed the case because petitioners failed to state a cause of

allegations are accurate, filed in good faith, and not the product of action against respondents.

the imagination or a matter of speculation. [19] While courts and  

litigants alike are directed to abide strictly by the procedural rules, Petitioners claim that the lower courts orders are

[20]
 we have relaxed these rules on the basis of justifiable baseless. They argue that concrete evidence is necessary for a

circumstances and substantial compliance.[21] reliable judgment on the merits.

   

Although petitioners did not file their amended Respondents, on the other hand, contend that the

pleading to include the special power of attorney or board initiatory pleading does not aver the first two basic requisites for

resolution authorizing Gloria M. Claveria to represent her co- the establishment of a legal easement of right-of-way: (1) that the

petitioners, they, however, attached to their Urgent Motion for dominant property is surrounded by estates of others and (2) there

Reconsideration the special power of attorney; authorization is no adequate outlet to a public highway. The rest of the co-

signed by Crisanto S. Claveria for Gloria M. Claveria to make, plaintiffs, they point out, did not even allege if they are co-owners

sign, and execute all documents pertaining to the case; and the or possessors of any real right over the estate of the petitioners-

spouses which is a requisite for the right to demand the

establishment of a legal easement of right-of-way over a servient
estate.
 
We held in Dabuco v. Court of Appeals  that what is determinative
in a dismissal for failure to state a cause of action is the
[22]
sufficiency, not the veracity, of the material allegations.  
to determine if the lower courts orders were in
accordance with the law. Petitioners allegations in support of
plaintiffs demand for an easement of right-of-way read:
 
 
10. That the students, their parents, school
teachers and school staff who reside within
Citihomes (nearly 50% of the school
population) including the four (4) plaintiffs
namely Pancho R. Navo, Vivencio B.
Asuncion, Isaurito S. Hernandez and Elias
Namit who are parents of certain school
children of St. Michael School of Cavite
have incontrovertibly the full right of
passage as well as the free right to use the
roads, lanes and pathways
of Citihomes including those leading to and
from the school;
 
11. That, for the last five (5) years, apart
from the major access road shown in the
Subdivision Plan, Annex A, the land area
actually used by the school population to
and from the school, inclusive of the
passageway and the school gate is only
a portion of a SIXTY-ONE (61) SQUARE
METERS LOT described as Lot 4, Block 7
of Citihomes owned and/or operated and
managed by defendants;
 
12. That the school has only one (1) gate
which serves as both entry and exit points
for the entire school population which
defendants threaten to fence off and to close;
 
13. That, other than the right of way fronting
the school and shown in the Subdivision
plan, Annex A, there are no other developed
nor practical entry and exit points at the rear
and at the two sides of the school site readily
and immediately accessible for use by the
school population as right of way and/or
entrance to and exit from the school
especially by those who reside
within Citihomes including the four (4)
plaintiffs/parents abovementioned which
constitute almost 50% of the total school
population;
 
xxxx
 
15. That through an appraisal report/letter
dated October 16, 1997 and July 28,
1998 respectively, [plaintiffs] were advised
by defendant Rexlon Realty Group, Inc. that
allegations, hypothetically speaking, must aver ultimate facts that
constitute plaintiffs cause of action which may entitle plaintiff to
an advantageous decision as a matter of law.[23]
 
An examination of petitioners Complaint is necessary
These
the appraisal value of lots
at Citihomes when fully developed is
P3,872.00 per square meter x x x;
 
16. That through a letter dated June 16,
1998, defendant Rexlon Realty Group, Inc.
approved the use of the 61 square meters
property described as Lot 4, Block 7
of Citihomes as a right of way for plaintiff
St. Michael School of Cavite x x x;
 
17. That, however, under a letter
dated January 29, 2001, [plaintiffs] were
advised by defendant Masaito Development
Corporation that instead of the sixty-one
(61) square meter property, Lot 4, Block 7,
plaintiffs should instead purchase Lot 1-9,
Block 7, phase I, of Citihomes with a total
lot area of one thousand and seventy-four
(1,074) square meters at a total contract
price of P3,759,000.00 which lots are all
fronting the school x x x;
 
18. That, despite Annexes D and D-1 of the
complaint, on April 6, 2001, [plaintiffs]
again received a new proposal from
defendant Masaito Development
Corporation proposing that plaintiff should
pay the sum of P2,000.000.00 for the
puchase of the sixty-one (61) square meters
property, Lot 4, Block 7, Phase I,
of Citihomes, plus the right to pass through
the private roads/drainage facilities of said
school x x x;
 
19. That plaintiffs do not need the entire
1,074 lot area covered by Lot 1-9, Block 7,
Phase I, Citihomes which exceeds the
requirements for the schools right of way;
while plaintiffs find unacceptable defendant
Masaito Development Corporations
proposal for plaintiffs to pay the sum of
P2,000,000.00 for the sixty-one (61) square
meter property, Lot 4, Block 7 of Phase
I, Citihomes which amount is clearly
unconscionable, excessive, unreasonable
and unjust;
 
20. That plaintiffs and the school population
only require a portion of the sixty-one (61)
square meters property Lot 4, Block 7 of
Phase I, Citihomes for their permanent
right of way and accept the price of
P3,872.00 per square meter as reasonable as
quoted in the Home Insurance and Guaranty
Corporations appraisal report/letter, x x x;
 
 21. That in support of plaintiffs application
for the [above-described] right of way material allegations are enough to entitle petitioners to a favorable
plaintiffs further state:
  judgment if these are assumed to be true.
21-A. That the St. Michael School of Cavite
is surrounded by immovable properties  
belonging to other persons
including Citihomes owned and/or operated The four corners of the initiatory pleading do not reveal
and managed by herein defendants such that
plaintiffs and the school population have at any averment that the properties in question are bounded by public
present no immediate and adequate outlet to
a public highway other than the major roads and there is an adequate access to a public highway. On the
Access Road and the sixty-one (61) square
meters lot of Citihomes described in the contrary, par. 13 of the Complaint alleges that other than the right
Subdivision Plan, x x x;
  of way fronting the school and shown in the Subdivision Plan,
21-B. That plaintiffs are willing and able to
pay the proper indemnity to defendants Annex A,[26] there are no other developed nor practical entry and
pursuant to the provisions of the Civil Code;
exit points at the rear and at the two (2) sides of the school site
 
21-C That the isolation of plaintiffs property
readily and immediately accessible for use by the school
is not due to plaintiffs own acts but was
caused by the expansion of the land area
population x x x.[27]
owned by Citihomes and the rapid increase
in the number of homeowners which now  
has reached more than a thousand
residents[.][24] Pars. 11 and 21-A of the Complaint as aforequoted
 
confusingly refer both to a major access road and the sixty-one
Three elements must be present for a complaint to state
(61) square meter lot (Lot 4, Block 7 of Citihomes) as an
a cause of action: (1) the legal right of the plaintiff, (2) the
immediate and adequate outlet to the public highway. The
correlative obligation of the defendant, and (3) the act or omission
paragraphs are not equivocal about petitioner schools lack of an
of the defendant violating said legal right.[25] For a complaint to
adequate outlet to a public highway and give the impression that
state a cause of action in an easement case, more specifically, Art.
such road is an adequate outlet to a public highway.
649 of the Civil Code has laid down the following requirements:
 
(1) the dominant estate is surrounded by other immovables and has
A complete examination of the Complaint, however,
no adequate outlet to a public highway; (2) there is payment of
unmistakably shows petitioners sufficient cause of action. To be
proper indemnity; and (3) the isolation is not due to the acts of the
more precise, Annexes A, A-1, and A-2 plainly demonstrate that
proprietor of the dominant estate.
the requisites for a legal easement of right-of-way under Art. 649
 
of the Code have been met.
We rule that the Complaint satisfies these three
 
elements and thus sufficiently alleges a cause of action. The
Annex A of the Complaint which is the location plan of
Complaint, first, asserts that petitioners have a right to an easement
Citihomes clearly shows that the schools only access to the public
of right-of-way that cuts across respondents property; second, it
highway is Lot 4, Block 7 that abuts the major access road of
refers to respondents correlative obligation not to fence off and
Citihomes which in turn is connected to the public highway. The
close the single gate which is used as the only entry and exit points
photographs (Annexes A-1[28] and Annex A-2[29] of the Complaint)
of the school population; and third, it refers to respondents
showing the school building and adjoining areas easily reveal that
expansion and excessive terms and conditions, constituting the acts
it is bounded by other immovable properties, which explains why
violating petitioners right. We thus hold that the Complaints
it only has one entry and exit point. Without the right-of-way

on Lot 4, Block 7 of Citihomes, the school has no adequate access

to a public highway. Annex A, as well as Annexes A-1 and A-2 of The Court has previously held that it is not for the trial

the Complaint, supports petitioners averments as these show that court to inquire into the truth or falsity of a complaints allegations

the school has a lone entry and exit point which is the right-of-way before a hearing on its merits.[32] In ordering the dismissal, it is

in front of the school. The reference to a major access road, apparent that the trial court relied on matters not encompassed by

therefore, must be understood in the context of all the allegations the Complaint. This is proscribed by the rules and jurisprudence.

of fact contained in the Complaint. Petitioners cause of action is The dismissal of the Complaint has thus no leg to stand on.

not solely found in the paragraphs referred to. The annexes cited  

likewise form part of the material allegations of the In the same matter, the trial court erred when it ruled

Complaint. Pars. 11 and 21-A of the Complaint and Annexes A, that the school, not being the registered owner of the subject lot, is

A-1, and A-2 read together, the averments of the Complaint not a real party-in-interest.

amply show a sufficient cause of action as prescribed by Art.  

649 of the Code. It will suffice under Art. 649 of the Civil Code that any

However, in the September 25, 2003 Order dismissing person who by virtue of a real right may cultivate or use any

the case, the RTC made the following findings: immovable which is surrounded by other immovables pertaining to

  other persons and without adequate outlet to a public highway, is

Finding the Motion for Partial
Reconsideration filed by the defendants to entitled to demand a right of way. Clearly, the school is a real
be well taken, it appearing that indeed the
properties (the alleged dominant estates) of party-in-interest since it has established a right to use the
plaintiffs Sps. Crisanto S. Claveria and
Gloria M. Claveria are bounded by public passageway for the benefit of its students. More importantly, the
roads, hence, they have adequate outlet to a
public highway. Likewise, insofar as records reveal that petitioners-spouses are the owners of the lot
plaintiff St. Michael School of Cavite, Inc.,
it is not a real party in interest considering where the school is located and they are the incorporators, trustees,
that it is not the registered owner of any
property subject matter of the instant case.[30] and officers of St. Michael.[33] They are also authorized to represent
 
  the corporation in the complaint and subsequent actions.Thus,

It is settled that a motion to dismiss hypothetically petitioners are real parties-in-interest and we rule that the dismissal

admits the truth of the facts alleged in the complaint. [31] Such being of the complaint is patently erroneous and bereft of any legal

the case, the RTC erred when it apparently considered matters not basis. Petitioners must be allowed to pursue their case before the

embodied in the Complaint. The Complaint, contrary to the lower trial court.

courts Order, does not aver that the properties of petitioners-  

spouses are bounded by public roads. The location plan and WHEREFORE, the petition is GRANTED. The assailed August

photographs of the subject lot and the school building appended to 13, 2004 and November 23, 2004 CA Resolutions in CA-G.R. SP

the Complaint, without doubt, demonstrate that the lot and school No. 85558 and the July 29, 2002 and September 25, 2003 Orders

building are enclosed, not by public roads, but by other lots in the of the Bacoor, Cavite RTC, Branch 19 are REVERSED and SET

subdivision. ASIDE. The RTC is directed to reinstate petitioners complaint and

  conduct further proceedings in Civil Case No. BCV-2001-60.

SO ORDERED.
 PRIVATIZATION AND G.R. No. 147957
MANAGEMENT OFFICE,    
Petitioner, Present:
  YNARES-SANTIAGO, 
Sometime in December 1975, Caruff obtained a loan
  J.,
  Chairperson,
  CHICO-NAZARIO, from the Philippine National Bank (PNB) to finance the
- versus - VELASCO, JR.,
  NACHURA, and construction of a 21-storey condominium along Roxas Boulevard.
  PERALTA, JJ.
  Promulgated: [2]
 The loan accommodation was secured by a real estate mortgage
   
LEGASPI TOWERS 300, INC., July 22, 2009
Respondent. over three (3) parcels of land covered by TCT Nos. 120311,

120312, and 120313,[3] where Caruff planned to erect the

condominium.

In 1979, Caruff started constructing a multi-storey

building on the mortgaged parcels of land. Along with the other

x---------------------------------------------
appurtenances of the building constructed by Caruff, it built a
- - - - - -x
powerhouse (generating set) and two sump pumps in the adjacent
 
lot covered by TCT No. 127649 (now TCT No. 200760).
DECISION
 
 
After the completion of the condominium project, it
PERALTA, J.:
was constituted pursuant to the Condominium Act (Republic Act
 
No. 4726), as the Legaspi Towers 300, Inc.
This is a petition for review on certiorari seeking to
 
annul and set aside the Decision[1] dated February 16, 2001, of the

However, for Caruffs failure to pay its loan with PNB,

Court of Appeals (CA) in CA-G.R. CV No. 48984, affirming the

the latter foreclosed the mortgage and acquired some of the

Decision of the Regional Trial Court (RTC).

properties of Caruff at the sheriffs auction sale held on January 30,

 

1985.[4]
The factual and procedural antecedents are as follows:

  Thereafter, Proclamation No. 50[5] was issued. It was

  aimed to promote privatization for the prompt disposition of the

Caruff Development Corporation owned several parcels large number of non-performing assets of the government financial

of land along the stretch of Roxas Boulevard, Manila. Among them institutions, and certain government-owned and controlled

were contiguous lots covered by Transfer Certificate of Title corporations, which have been found unnecessary or inappropriate

(TCT) Nos. 120311, 120312, 120313, and 127649 (now TCT No. for the government sector to maintain. It also provided for the

200760). creation of the Asset Privatization Trust (APT).

    

By virtue of Administrative Order No. 14 and the Deed On July 5, 1989, respondent filed a case for Declaration

of Transfer executed by PNB, the National Government, thru the of the existence of an easement before the RTC of Manila,

APT, became the assignee and transferee of all its rights and titles docketed as Spec. Proc. No. 89-49563. Respondent alleged that the

to and interests in its receivables with Caruff, including the act of Caruff of constructing the powerhouse and sump pumps on

properties it acquired from the foreclosure of Caruffs mortgage. its property constituted a voluntary easement in favor of the

  respondent. It prayed, among other things, that judgment be

Meanwhile, Caruff filed a case against PNB before the rendered declaring the existence of an easement over the portion of

RTC of Manila, Branch 2, whereby Caruff sought the nullification the property covered by TCT No. 127649 (now TCT No. 200760)

of PNBs foreclosure of its properties.[6] The case was docketed as that was being occupied by the powerhouse and the sump pumps in

Civil Case No. 85-29512. its favor, and that the Register of Deeds of Manila annotate the

  easement at the back of said certificate of title.[9]

A Compromise Agreement[7] dated August 31,  

1988 was later entered into by Caruff, PNB, and the National In its Answer with Counterclaim and Cross-claim,

[10]
Government thru APT. The parties agreed, among other things,  APT alleged that respondent had no cause of action against it,

that Caruff would transfer and convey in favor of the National because it was but a mere transferee of the land. It acquired

Government, thru the APT, the lot covered by TCT No. 127649 absolute ownership thereof by virtue of the Compromise

(now TCT No. 200760), where it built the generating set and sump Agreement in Civil Case No. 85-2952, free from any liens and/or

pumps. encumbrances. It was not a privy to any transaction or agreement

  entered into by and between Caruff, respondent, and the bank. It

On September 9, 1988, the RTC rendered a Decision further alleged that the continued use of the subject property by

approving the Compromise Agreement executed and submitted by respondent and the condominium owners without its consent was

the parties. The dispositive portion of said Decision reads: an encroachment upon its rights as absolute owner and for which it
x x x and finding the foregoing compromise
agreement to be well-taken, the Court should be properly compensated.
hereby approves the same and renders
judgment in accordance with the terms and
conditions set forth [sic] therein and enjoins On January 12, 1995, after trial on the merits, the RTC
the parties to comply strictly therewith.
 
SO ORDERED.[8] rendered a Decision[11] declaring the existence of an easement over

  the portion of the land covered by TCT No. 127649 (TCT No.

200760), the decretal portion of which reads:

Thus, by virtue of the Decision, the subject property

was among those properties that were conveyed by Caruff to PNB  

and the National Government thru APT.

 WHEREFORE, judgment is
hereby rendered in favor of the petitioner
and against the respondents hereby declaring
the existence of an easement over the
portion of land covered by TCT No. 200760
(previously No. 127649) occupied at present
[by the] powerhouse and sump pumps nos. 1
and 2 only, of Legaspi Towers 300, in favor
of Legaspi Towers 300, Incorporated.The
Register of Deeds of Manila is, likewise,
hereby directed to annotate this easement at
the back of the said certificate of title. The
counterclaim and cross-claim are dismissed
accordingly.
SO ORDERED.
 
Aggrieved, APT sought recourse before the CA in CA-G.R. CV
No. 48984.
Subsequently, the term of existence of APT expired and, pursuant
to Section 2, Article III of Executive Order No. 323, the powers,
functions, duties and responsibilities of APT, as well as all the
properties, real or personal assets, equipments and records held by
it and its obligations and liabilities that were incurred, was
transferred to petitioner Privatization and Management Office
(PMO). Thus, the PMO substituted APT in its appeal.
On February 16, 2001, finding no reversible error on
the part of the RTC, the CA rendered a Decision [12] affirming the
decision appealed from. PMO filed a Motion for Reconsideration,
but it was denied in the Resolution[13] dated May 3, 2001.
Hence, the present petition assigning the following
errors:
I include as encumbrance the voluntary easement.
THE PUBLIC RESPONDENT COURT OF
APPEALS ERRED IN AFFIRMING THE
DECISION OF THE COURT A QUO IN
FINDING THAT [THE] PRESENCE OF
THE GENERATOR SET (GENERATING
SET) AND SUMP PUMPS CONSTITUES
AN EASEMENT.
 
II
THE PUBLIC RESPONDENT COURT OF
APPEALS ERRED IN AFFIRMING THE
DECISION OF THE COURT A QUO IN
DECLARING THE EXISTENCE OF AN
EASEMENT OVER THE PORTION OF
LAND COVERED BY TCT NO. [200760]
OCCUPIED BY THE GENERATOR SET
AND SUMP PUMPS NOS. 1 AND 2,
PURSUANT TO ARTICLE 688 OF THE
CIVIL CODE.
 
III
THE PUBLIC RESPONDENT COURT OF
APPEALS ERRED IN AFFIRMING THE
DECISION OF THE COURT A QUO IN
NOT REQUIRING THE RESPONDENT-
PETITIONER TO PAY ANY
COMPENSATION TO PETITIONER, THE
OWNER OF THE LAND, FOR THE USE
OF ITS PROPERTY.[14]
Petitioner argues that the presence of the generator set
and sump pumps does not constitute an easement. They are mere
improvements and/or appurtenances complementing the
condominium complex, which has not attained the character of
immovability. They were placed on the subject property as
accessories or improvements for the general use and comfort of the
occupants of the condominium complex.
Petitioner maintains that, as the generator set and sump
pumps are improvements of the condominium, the same should
have been removed after Caruff undertook to deliver the subject
property free from any liens and encumbrances by virtue of the
Decision of the RTC in Civil Case No. 85-29512 approving the
parties Compromise Agreement. It adds that, in alienating the
property in favor of APT/PMO, Caruff could not have intended to
 
Petitioner posits that respondent failed to present any
evidence to prove the existence of the necessary requisites for the
establishment of an easement. There is no concrete evidence to pumps were installed is permanent in nature, since their removal

show that Caruff had a clear and unequivocal intention to establish and transfer to another location would render the same worthless

the placing of the generator set and sump pumps on the subject and would cut off the supply of electricity and water to the

property as an easement in favor of respondent. condominium and its owners.

  Respondent maintains that petitioner cannot assume

Lastly, petitioner contends that respondent is a squatter that Caruff intended to renounce the voluntary easement over the

for having encroached on the formers property without its consent subject property by virtue of the Compromise Agreement, since

and without paying any rent or indemnity.Petitioner submits that such defense can only be presented by Caruff and not the

respondents presence on the subject property is an encroachment petitioner. It added that petitioner had actual notice of the presence

on ownership and, thus, cannot be properly considered an of the generating set and sump pumps when they were negotiating

easement. It adds that an easement merely produces a limitation on with Caruff regarding the compromise agreement and at the time

ownership, but the general right of ownership of the servient the subject property was transferred to petitioner. Also, petitioner

tenement must not be impaired so as to amount to a taking of cannot claim the payment of rent, considering that there was no

property.When the benefit being imposed is so great as to impair written demand for respondent to pay rent or indemnity.

usefulness of the servient estate, it would amount to a cancellation  

of the rights of the latter. Respondent submits that the mandate of petitioner to

  privatize or dispose of the non-performing assets transferred to it

Petitioner insists that, for having unjustly enriched itself does not conflict with the issue of the declaration of the easement

at the expense of the National Government and for encroaching on over the subject property, considering that petitioner is not

the latters rights as the absolute owner, respondent should prevented from privatizing the same despite the presence of the

rightfully compensate the National Government for the use of the voluntary easement.

subject property which dates back to August 28, 1989 up to the  

present. The petition is meritorious.

   

For its part, respondent argues that it was the intention An easement or servitude is a real right constituted on

of Caruff to have a voluntary easement in the subject property and anothers property, corporeal and immovable, by virtue of which

for it to remain as such even after the property was subsequently the owner of the same has to abstain from doing or to allow

assigned to APT. It was Caruff who constructed the generating set somebody else to do something on his property for the benefit of

and sump pumps on its adjacent property for the use and benefit of another thing or person.[15] The statutory basis of this right is

the condominium adjoining it. Also, the manner in which the sump Article 613 of the Civil Code, which provides:

 
Art. 613. An easement or
servitude is an encumbrance imposed upon
an immovable for the benefit of another
immovable belonging to a different owner.
 
The immovable in favor of which the
easement is established is called the
dominant estate; that which is subject
thereto, the servient estate.
There are two sources of easements: by law or by the
will of the owners. Article 619 of the Civil Code states:
 
Art. 619. Easements are
established either by law or by the will of
the owners. The former are called legal and
the latter voluntary easements.
In the present case, neither type of easement was
constituted over the subject property.
In its allegations, respondent claims that Caruff
constituted a voluntary easement when it constructed the
generating set and sump pumps over the disputed portion of the
subject property for its benefit. However, it should be noted that
when the appurtenances were constructed on the subject property,
the lands where the condominium was being erected and the
subject property where the generating set and sump pumps were
constructed belonged to Caruff. Therefore, Article 613 of the Civil
Code does not apply, since no true easement was constituted or
existed, because both properties were owned by Caruff.
 
Also, Article 624 of the Civil Code is controlling, as it
contemplates a situation where there exists an apparent sign of
easement between two estates established or maintained by the
owner of both. The law provides:
Art. 624. The existence of an
apparent sign of easement between two
estates, established or maintained by the
owner of both, shall be considered, should
either of them be alienated, as a title in order
that the easement may continue actively and
passively, unless, at the time the ownership
of the two estates is divided, the contrary
should be provided in the title of
conveyance of either of them, or the sign
aforesaid should be removed before the
execution of the deed. This provision shall
also apply in case of the division of a thing
owned in common by two or more persons.
[16]
 
From the foregoing, it can be inferred that when the
owner of two properties alienates one of them and an apparent sign
of easement exists between the two estates, entitlement to it
continues, unless there is a contrary agreement, or the indication
that the easement exists is removed before the execution of the
deed.
In relation thereto, the Compromise Agreement, as
approved by the court, clearly states, among other things, that:
xxxx
2.0 That in consideration of the
covenants hereunder stipulated, plaintiff
[Caruff] Development Corporation (CDC),
hereby terminates the instant case against
defendants Philippine National Bank (PNB)
and the National Government/APT, and
hereby:
 
2.1 Assigns, transfers and
conveys in favor of defendant National
government thru APT, CDCs rights, title
and interest in the Maytubig property,
situated at the back of the Legaspi Towers
300 Condominium, consisting of seven (7)
contiguous lots with an aggregate area of
1,504.90 square meters, covered by the
following Transfer Certificate of Title, viz:
TCT No. 23663 Pasay City Registry; TCT
No. 142497 Metro Manila 1 Registry; TCT
No. 142141 Metro Manila 1 Registry; TCT
No. 127649 Metro Manila 1 Registry; x x
x; all titles, free from any and all liens and
encumbrances, to be delivered, and the
necessary papers and documents to be
turned over/executed to effect transfer in
favor of the National Government/APT,
upon approval of this Compromise
Agreement;
x x x x.[17]
 
 Thus, when the subject property was assigned to the other means, acquires or comes into possession of something at the

National Government thru the APT, no easement arose or was expense of the latter, without just or legal ground, shall return the

voluntarily created from the transfer of ownership, considering that same to him. The principle of unjust enrichment under Article 22

the parties, more particularly, Caruff, pledged that it was assigning, of the Civil Code requires two conditions: (1) that a person is

transferring, and conveying the subject property in favor of the benefited without a valid basis or justification, and (2) that such

National Government thru the APT free from any and all liens and benefit is derived at anothers expense or damage.[20]

encumbrances.  

In the present case, there is no dispute as to who owns

 
the subject property and as to the fact that the National
Compromise agreements are contracts, whereby the
Government has been deprived of the use thereof for almost two
parties undertake reciprocal obligations to resolve their differences,
decades. Thus, it is but just and proper that respondent should pay
thus, avoiding litigation, or put an end to one already commenced.
reasonable rent for the portion of the subject property occupied by
[18]
 As a contract, when the terms of the agreement are clear and
the generating set and sump pumps, from the time respondent
explicit that they do not justify an attempt to read into it any
deprived the lawful owner of the use thereof up to the present. To
alleged intention of the parties; the terms are to be understood
rule otherwise would be unjust enrichment on the part of
literally, just as they appear on the face of the contract.
respondent at the expense of the Government.
[19]
 Considering that Caruff never intended to transfer the subject
 
property to PMO, burdened by the generating set and sump pumps,
From the records, APT/PMO submitted, as part of its
respondent should remove them from the subject property.
evidence, a letter[21] dated June 18, 1992, wherein it fixed the
 
monthly rental fee per square meter of the entire property
As regards PMOs claim for rent, respondent has been
at P56.25, or P1.81 per square meter per day. Hence, respondent
enjoying the use of the subject property for free from the time the
should pay the National Government reasonable rent in the amount
rights over the property were transferred and conveyed by Caruff
of P56.25 per square meter per month, to be reckoned from August
to the National Government.
28, 1989 up to the time when the generating set and sump pumps
 
are completely removed therefrom.
We have held that [t]here is unjust enrichment when a
 
person unjustly retains a benefit to the loss of another, or when a
WHEREFORE, premises considered, the Decision of
person retains money or property of another against the
the Regional Trial Court in Spec. Proc. No. 89-
fundamental principles of justice, equity and good
49563 dated January 12, 1995, and the Decision and Resolution of
conscience. Article 22 of the Civil Code provides that [e]very
the Court of Appeals in CA-G.R. CV No. 48984 dated February
person who, through an act or performance by another, or any
 Caruff Development Corporation(now 
16, 2001 and May 3, 2001, respectively, are REVERSED and Legaspi Towers 300 Inc)  owned
several parcels of land along the
stretch
SET ASIDE. of Roxas Boulevard, Manila. In
1979, Caruff started constructing a
  multi-storey building on the
mortgaged parcels of land.  Along
Legaspi Towers 300, Inc. with the other appurtenances of the
building constructed by Caruff, it
built a powerhouse (generating set)
is DIRECTED to REMOVE the generating set and sump pumps
and two sump pumps in the adjacent
lot covered by TCT No. 127649
1 and 2 from the property covered by TCT No. 200760 and (now TCT No. 200760)
 
to PAY reasonable rent at the rate of P56.25 per square meter/per ISSUE/S:
 
Whether or not the construction of a
month from August 28, 1989 until the same are completely
generator set and 2 sump pumps
constitutes as easement of the
removed. property.
   
SO ORDERED. RULING:
 
The SC ruled in the negative. Art. 613. An
PRIVATIZATION AND MANAGEMENT OFFICE vs easement or servitude is an encumbrance
LEGASPI TOWERS imposed upon an immovable for the benefit
PRIVATIZATION AND of another immovable belonging to a
MANAGEMENT OFFICE vs different owner.  In the case at
LEGASPI TOWERS 300, bar Legaspi Towers 300 Inc. the owner of the
INC. G.R. No. 147957 property where the generator set and sump
 July 22, 2009 pumps was built  is also the same owner of
  the property where the condominium was
Facts: constructed.  In fine, the properties are
owned by the same person.

n
d
SPS. MANUEL AND VICTORIA G.R. No. 185240
Perez, JJ.
SALIMBANGON,
Petitioners, Present: SPS. SANTOS AND ERLINDA TAN,
Carpio, J., Chairperson,
- versus - Brion,
Respondents. Promulgated:

D
January 20, 2010
e
l x
C ---------------------------------------------------------------------------------------
a x
s
t  
i
l DECISION
l  
o
, ABAD, J.:

A  
b
a  
d
,
a
 SW. boundary in favor of Lot D of the
This case is about the admissibility of testimony that subdivision.[1]
tends to modify a written agreement among the parties and the
 
extinction of the easement of right of way upon consolidation in
 
one person of the ownership of the dominant and the servient

estates. Lots A, B, and C were adjacent to a city street. But Lots

D and E were not, they being interior lots. To give these interior
 
lots access to the street, the heirs established in their extrajudicial

The Facts and the Case partition an easement of right of way consisting of a 3-meter wide

alley between Lots D and E that continued on between Lots A and

Guillermo Ceniza died intestate on July 11, 1951,
B and on to the street. The partition that embodied this easement
leaving a parcel of land at Poblacion, Mandaue City. Twenty years
of right of way was annotated on the individual titles issued to the
later on July 17, 1973 his children Benedicta, Guillermo, Jr.,
heirs.
Victoria, Eduardo, and Carlos executed an extrajudicial declaration

of heirs and partition, adjudicating and dividing the land among  

themselves as follows:
Roughly, the lots including the easement of right of

  way would take the following configurations, [2] not drawn here to

1. To Benedicta T. Cabahug, Lot accurate size and proportion but illustrative of their relative
A subject to a perpetual and grat[u]itous
locations:
road right of way 1.50 m. wide along its
NW. boundary in favor of Lots B, E, and D,
of the subdivision;

2. To Eduardo Ceniza, Lot B

subject to a perpetual and grat[u]itous
road right of way 1.50 m. wide along its
SW. boundary in favor of Lots A, D & E of
the subdivision;

3. To Carlos Ceniza, Lot C;

4. To Guillermo Ceniza Jr., Lot D

subject to a perpetual and grat[u]itous
road right of way 1.50 m. wide along its
NE. boundary in favor of Lot B and E of the
subdivision; and

5. To Victoria Ceniza, Lot E,

subject to a perpetual and grat[u]itous
road right of way 1.50 m. wide along its
 But, realizing that the partition resulted in an unequal Subsequently, however, respondent

division of the property, the heirs modified their agreement by spouses Santos and Erlinda Tan (the Tans) bought Lots B, C, D, and

eliminating the easement of right of way along Lots A, D, and E, E from all their owners. The Tans built improvements on Lot B

and in its place, imposed a 3-meter wide alley, an easement of that spilled into the easement area. They also closed the gate that

right of way, that ran exclusively along the southwest boundary of the Salimbangons built. Unable to use the old right of way, the
[3]
Lot B from Lots D and E to the street.  Thus: Salimbangons lodged a complaint with the City Engineer of

Mandaue against the Tans. For their part, the Tans filed an action

with the Regional Trial Court (RTC) of Mandaue against the

Salimbangons in Civil Case MAN-3223 for the extinguishment of

the easement on Lot B and damages with application for

preliminary injunction.[4] The Salimbangons filed their answer with

counterclaims.

After hearing or on February 9, 2001 the RTC rendered

judgment, upholding the Salimbangons easement of right of way

over the alley on Lot B, the lot that belonged to the Tans. The

court pointed out that the easement in this case was established

by agreement of the parties for the benefit of Lots A, D, and

E. Consequently, only by mutual agreement of the parties could

such easement be extinguished. The RTC declined, however, to

award damages to the Salimbangons.

   

Victoria (now petitioner Victoria Salimbangon) later Both parties appealed to the Court of Appeals (CA) in

swapped lots with Benedicta with the result that Victoria became CA-G.R. CV 73468. On July 27, 2007 the CA[5] reversed the RTC

the owner of Lot A, one of the three lots adjacent to the city decision, extinguished the easement of right of way established

street. Victoria and her husband (the Salimbangons) constructed a on the alley in Lot B of the Tans, and denied the Salimbangons

residential house on this lot and built two garages on it. One claim for damages. The court ruled that based on the testimony of

garage abutted the street while the other, located in the interior one of the previous owners, Eduardo Ceniza, the true intent of

of Lot A, used the alley or easement of right of way existing on Lot the parties was to establish that easement of right of way for the

B to get to the street. Victoria had this alley cemented and gated. benefit of the interior lots, namely, Lots D and E. Consequently,

when ownership of Lots B, D, and E was consolidated into the

 
Tans, the easement ceased to have any purpose and became

extinct. The Salimbangons filed a motion for reconsideration but

 along its SW. boundary in favor of Lots A, D
the CA denied the same in its resolution of October 14, 2008. This & E of the subdivision;[6] (Underscoring
prompted them to file the present petition. supplied)

   

Questions Presented The parol evidence rule, said the Salimbangons,

precluded the parties from introducing testimony that tended to

 
alter or modify what the parties had agreed on above.

Two questions are presented:

 

 
But the exclusionary provision of the parol evidence

rule admits of exceptions. Section 9, Rule 130 of the Revised Rules

1. Whether or not the CA erred in admitting in
on Evidence states:
evidence contrary to the parol evidence rule Eduardo Cenizas

testimony respecting the true intent of the heirs in establishing

 
the easement of right of way as against what they stated in their
Sec. 9. Evidence of written
written agreement; and agreements. - When the terms of an
agreement have been reduced to writing,
it is considered as containing all the terms
 
agreed upon and there can be, between
the parties and their successors in interest,
2. Whether or not the CA erred in ruling that the no evidence of such terms other than the
contents of the written
easement of right of way established by the partition agreement
agreement. However, a party may present
among the heirs for the benefit of Lot A has been extinguished. evidence to modify, explain or add to the
terms of the written agreement if he puts
in issue in his pleading:
 
 
The Courts Ruling
(a) An intrinsic ambiguity,
mistake or imperfection in the written
  agreement;

(b) The failure of the written

One. The Salimbangons point out that the CA ought to
agreement to express the true intent and
have rejected Eduardo Cenizas testimony that the heirs had agreement of the parties thereto;

intended to establish the easement of right of way solely for the (c) The validity of the written
agreement; or
benefit of the interior Lots D and E which had no access to the city

street. The partition agreement also made Lot A, now owned by (d) The existence of other terms
agreed to by the parties or their successors
the Salimbangons, a beneficiary of that easement. Thus: in interest after the execution of the
written agreement.
 
The term agreement includes
2. To Eduardo Ceniza [now the wills. (7a)
Tans], Lot B subject to a perpetual and
grat[u]itous road right of way 1.50 m. wide
 
 Here, the Tans had put in issue the true intent and
agreement of the parties to the partition when they alleged in
their complaint that, contrary to what paragraph 2 quoted above
seems to imply, the easement was actually for the benefit of Lots
D and E only. The complaint thus said:
So that in the same partition
instrument, the said heirs voluntarily
agreed to establish the so-called perpetual
and gratuitous easement of road right of
way along LOT A, with 1.50 meters wide
and along LOT B, with the same 1.50
meters wide.
Understandably, this servitude
voluntarily constituted on LOTS A and B
was had for the benefit and use by the
owners of LOTS D (Guillermo Ceniza,
Jr.) and E (defendant Victoria Ceniza
Salimbagon).[7] (Underscoring supplied)
Consequently, with the above averment, the Tans
were entitled to introduce evidence to establish the true intent
and agreement of the parties although this may depart from what
the partition agreement literally provided.
At any rate, as the CA said, the Salimbangons did not
object at the hearing to admission of Eduardo Cenizas testimony
even when this seemed at variance, as far as they were
concerned, with the partition agreement among the
heirs. Consequently, the Salimbangons may also be deemed to
have waived their right to now question such testimony on
appeal.
 
Two. The Salimbangons point out that the partition
agreement among the heirs established in their favor, as owners
of Lot A, an easement of right of way on Lot B from the interior of
their lot to the city street. Since theirs was an easement
established by agreement of the parties, only by mutual
agreement could the same be extinguished.
 
But, firstly, as Eduardo Ceniza testified, the true
agreement of the heirs was for the establishment of an easement
of right of way for the benefit solely of the lots that did not have
direct access to the street, namely Lots D and E. His testimony
made sense.
As originally constituted in that agreement, each of
Lots A and B was to contribute a strip of 1.5 meters between
them that when combined formed a 3-meter wide alley leading
from Lots D and E to the street. To the extent that Lots A and B
retained the right to use the 1.5-meter portion that they
contributed to the establishment of the easement, the agreement
gave their owners the right to use the common alley as well.  As
Eduardo testified, however, the true intent of the heirs was to
give Lots D and E access to the street. Lots A and B did not need
this alley since they were facing the street.
Consequently, when the owner of Lots D and E also
became the owner of Lot B, the easement of right of way on Lot B
became extinct by operation of law. [8] The existence of a dominant
estate and a servient estate is incompatible with the idea that
both estates belong to the same person.
Secondly, there is no question that when the heirs
realized that it was not fair to take strips of 1.5 meters from each
of Lots A, D, and E for the easement of right of way when these
lots were already small, the heirs executed a Cancellation of
Annotation of Right of Way, etc. that cancelled the easement of
right of way they earlier established on Lots A, D, and E and in its
place imposed a 3-meter wide easement of right of way solely on
Lot B.
 
Although the cancellation document did not say so, it
was implicit that the changed location of the easement cancelled
not only the 1.5-meter strip of easement imposed on Lot A of the
Salimbangons but also their right to use the new 3-meter
easement alley that lay entirely on Lot B. Strictly speaking, if the
Salimbangons insist that their right as dominant estate under the
original partition agreement remains, then that would be partly
on a 1.5-meter strip of their own Lot A and partly on the
equivalent 1.5-meter strip on the side of Lot B, not on the new 3-
meter alley established entirely on Lot B.
 
The point is that, obviously, in establishing the new
easement of right of way, the heirs intended to abandon the old
one. Since this 3-meter alley on Lot B directly connected Lots D
and E to the street, it is also obvious that only the latter lots were
its intended beneficiary. And, with the ownership of Lots B, D, and
E now consolidated in a common owner, namely, the Tans, then
the easement of right of way on Lot B may be said to have been
extinguished by operation of law.[9]
 
ACCORDINGLY, this Court DENIES the petition
and AFFIRMS in all respects the decision dated July 27, 2007 and
resolution dated October 14, 2008 of the Court of Appeals in CA-
G.R. CV 73468.
 
SO ORDERED.
SPS. MANUEL AND VICTORIA SALIMBANGON, Petitioners,
vs. SPS. SANTOS AND ERLINDA TAN,Respondents.G.R.
No. 185240 : January 20,
FACTS: Petitioner Victoria Salimbangon, together with her
brothers and sister, inherited the subjectproperty from her
father. They divided the lot into Lot A, B, C, D, and E. Lots A,
B, and C were adjacent toa city street while D and E were
interior lots. To give these interior lots access to the street, the
heirsestablished in their extrajudicial partition an easement of
right of way that ran exclusively along thesouthwest boundary of
Lot B from Lots D and E to the street.Petitioner Victoria became
the owner of Lot A and constructed therein a residential house
and
two garages. The other portions were sold by petitioner’s
co-
heirs to the Tan’s.
The Tans builtimprovements on Lot B that spilled into the
easement area. They also closed the gate that theSalimbangons
built. Unable to use the old right of way, the
Salimbangons lodged a complaint with theCity Engineer
of Mandaue a
gainst the Tans, while the Tan’s
filed an action with the Regional Trial Courtfor the extinguishment
of the easement on Lot B and damages with application for
preliminaryinjunction.The RTC upheld the Salimbangons
easement of right of way over the alley on Lot B, the
lot thatbelonged to the Tans. The court pointed out
that the easement was established by agreement of
theparties, hence only by mutual agreement of the parties could
such easement be extinguished. Bothparties appealed to the
Court of Appeals which reversed the RTC decision on
the ground that whenownership of Lots B, D, and E
was consolidated into the Tans, the easement ceased
to have any purposeand became extinct.ISSUE: Whether
or not the easement of right of way established by
the partition agreement among theheirs for
the benefit of Lot A has been extinguished.HELD: Yes.
An easement established by agreement of the parties could be
extinguished only by mutualagreement. However, since the
agreement of the heirs was to give Lots D and E access to the
street, theeasement of right of way on Lot B became
extinct by operation of law when the ownership of
Lots B, D,and E was consolidated in a common owner,
namely, the Tans. The existence of a dominant estate
and aservient estate is incompatible with the idea that both
estates belong to the same person