Farrales vs City Mayor of Baguio
or City Health Officer to act in order to clear
Facts:
Plaintiff was the holder of a municipal license
to sell liquor and sari-sari goods.
When the temporary building where she had
her stall was demolished in order that the city
might construct a permanent building, Plaintiff
was ordered to move her goods to another
temporary place until the permanent building
was completed.
Plaintiff had been assigned a place where to
install her shack - she did not like this and,
following her own desires, built the shack in the
middle of a passage
She did not like the location pointed out by city
officials where she could install her temporary
stall, Plaintiff built a temporary shack at one
end of the Rice Section, Baguio City Market,
without seeking prior permit or permission
from any city official.
When the police threatened to demolish this
shack, which was built on the cement
passageway at the end of the Rice Section
building, Plaintiff came to this Court seeking an
INJUNCTION.
Before this Court would issue an injunction, a
hearing was held where this Court refused to
issue the same unless Plaintiff could show
proper permit. Plaintiff could not do so, so the
police demolished the shack, brought the
materials and goods to the City Hall and
subsequently delivered both materials and
goods to Plaintiff.
ISSUE:
Whether the demolition of the shack was in
order or not.
Ruling:
There is no doubt Plaintiff had no permit to
build the shack and this shack was built in
the passageway where people pass when
going to the hangar market building.
Plaintiff insists that the proper procedure should
have been for either the City Engineer or the
City Health Officer to commence legal
proceedings for the abatement of this
"nuisance".
Should the police wait for the City Engineer
the passageway of this illegal construction?
 This Court believes that they could clear the
passageway on their own responsibility,
just like they can push a car that is parked
in the wrong place without waiting for court
proceedings.
Farrales’ Contention:
that the shack or temporary stall put up by her
inside the premises of the Baguio City Market
was not a nuisance or if it was a nuisance at all
it was one per accidens and not per se and
therefore could be abated only after the
corresponding judicial proceeding.
This is not supported by the uncontradicted
evidence, because of the following:
1) she had no permit to put up the
temporary stall in question in the precise
place where she did so.
2) its location on the cement passageway at
the end of the Rice Section building was
such that it constituted an obstruction to
the free movement of people.
Judging by these photographs it cannot even
be said that what the appellant constructed was
a temporary stall. It was nothing more than a
lean-to, improvised with pieces of used
scrap iron roofing sheets.
It was obviously NOT a "BUILDING" within the
meaning of the Charter of the City of Baguio
It is true that under Article 702 of the Civil
Code "the District Officer shall determine
whether or not abatement, without judicial
proceedings, is the best remedy against
public nuisance;" but in this case the failure to
observe this provision is not in itself a ground
for the award of damages in favor of the
appellant and against the appellees.
According to Article 707 of the same Code, a
public official extrajudicially abating a
nuisance shall be liable for damages in only
two cases:
(1) if he causes unnecessary injury, or
(2) if an alleged nuisance is later declared by
the courts to be not a real nuisance.
  no unnecessary injury was caused to the
appellant, and not only was there no judicial
declaration that the alleged nuisance was
not really so but the trial court found that it
was in fact a nuisance.
Roman Catholic Bishop of Manila vs Pedro
Roxas
Facts:
Road between Hacienda de San Pedro Macati
(dominant estate) and Calle Tejeron (servient
estate)
formerly a meter and a half wide or 2 meters
wide, although at present it has a greater width
used from time immemorial by the tenants of
the Hacienda de San Pedro Macati for the
passage of carts entering and leaving the
Hacienda
it was now some 4 meters wide
also very near this road is a small church
the faithful used this road in going to this place
of worship
the said road is NOT ONLY USED by the
Tenants of Pedro but also by the people
living in the Sitio of Suavoy
hacienda (the dominant estate) is partly
bounded on the south by Calle Tejeron. The
point where it is claimed that this right of way
starts across by lot L is only 198.25 meters from
the said street.
So the claim of Roxas cannot be that the right
of way exists by necessity growing out of the
peculiar location of his property, but simply that
it arises by prescription, founded alone upon
immemorial use by his tenants.
used for a great number of years by the
members of the appellee's church to go to
and from the ermita, and also by the
appellant's tenants, and by other people.
the road which the appellant seeks to
have declared a RIGHT OF WAY for
the benefit of the hacienda
not been shown that such use was absolutely
necessary in order to cultivate the dominant
estate
said TENANTS cross lot L merely on account
of convenience, as they could have reached
the public highway by going on in other
directions, especially south only 198 meters.
Established facts:
1) that the use of the road by the tenants of the
appellant in this manner and under these
circumstances has not been such as to
create an easement by prescription or in
any other manner; and
2) that the use of said road by all has been by
permission or tolerance of the appellee.
Where a tract of land, as in the case at bar,
attached to a public meeting house - such as
the ermita - is designedly LEFT OPEN and
UNINCLOSED for the convenience of the
members or worshippers of that church, the
mere passage of persons over it in common
with those for whose use it was appropriated is
to be regarded as PERMISSIVE and under an
implied license, and not adverse.
although an adjacent proprietor may make such
use of the open land more frequently than
other, yet the same rule will apply unless there
be some decisive act indicating a separate
and exclusive use under a claim of right.
a RIGHT OF WAY, like the one sought to be
established in the case at bar, is a charge
imposed upon real property for the benefit of
another estate belonging to a different owner.
Such a right of way is a privilege or advantage
in land existing distinct from the ownership of
the soil; and because it is a permanent interest
in another's land with a right to enter at all times
and enjoy it, it can only be founded upon an
AGREEMENT or upon PRESCRIPTION.
when PRESCRIPTION is relied upon in those
cases where the right of way is not essential for
the beneficial enjoyment of the dominant estate,
the proof showing adverse use - which is an
affirmative claim - must be sufficiently strong
and convincing to overcome the presumption of
permissive use or license, as such a right of
way is never implied because it is convenient.

Constabella vs COURT OF APPEALS,
KATIPUNAN LUMBER CO., INC., AURORA
BUSTOS LOPEZ, MANUEL S. SATORRE, JR.,
JOSEFA C. REVILLES, FELIX TIUKINHOY, JR.,
PERFECTA L. CHUANGCO, and CESAR T.
ESPINA
Facts:
Petitioner owns the real estate properties
designated as Lots Nos. 5122 and 5124 of the
Opon Cadastre, situated at Sitio Buyong,
Maribago, Lapu-Lapu City, on which it had
constructed a resort and hotel. The private
respondents, on the other hand, are the owners
of adjoining properties more particularly known
as Lots Nos. 5123-A and 5123-C of the Opon
Cadastre.
Before the petitioner began the construction
of its beach hotel, the private respondents, in
going to and from their respective properties
and the provincial road, passed through a
passageway which traversed the petitioner's
property. In 1981, the petitioner closed the
aforementioned passageway when it began the
construction of its hotel, but nonetheless
opened another route across its property
through which the private respondents, as in
the past, were allowed to pass. (Later, or
sometime in August, 1982, when it undertook
the construction of the second phase of its
beach hotel, the petitioner fenced its property
thus closing even the alternative
passageway and preventing the private
respondents from traversing any part of it.)
As a direct consequence of these closures,
respondents filed an action for injunction with
damages
Private respondents’ contention
 claimed to be an "ancient road right of
way" that had been existing before World
War II and since then had been used by
them, the community, and the general
public, either as pedestrians or by means of
vehicles, in going to and coming from Lapu-
Lapu City and other parts of the country
 closing the alleged road right of way in
question, the petitioner had deprived them
access to their properties and caused
them damages
 That Constabella constructed a dike on the
beach fronting the latter’s property without
the necessary permit,
obstructing the passage of residents and
local fishermen
trapping debris and flotsam on the beach
Constabella’s contention
denied the existence of an ancient road through
its property
walling in of its property in view of the need to
insure the safety and security of its hotel and
beach resort, and for the protection of the
privacy and convenience of its hotel patrons
and guests.
private respondents were not entirely
dependent on the subject passageway as they
(private respondents) had another existing and
adequate access to the public road through
other properties
With respect to the DIKE it allegedly
constructed, the petitioner stated that what it
built was a BREAKWATER on the foreshore
land fronting its property and not a dike as
claimed by the private respondents.
The quantity of flotsam and debris which had
formed on the private respondents' beach front
on the other hand were but the natural and
unavoidable accumulations on beaches by
the action of the tides and movement of the
waves of the sea.
RTC
private respondents had acquired a VESTED
right over the passageway in controversy
based on its long existence and its
continued use and enjoyment not only by the
private respondents, but also by the community
at large. The petitioner in so closing the said
passageway, had accordingly violated the
private respondents' vested right.
CA
 held as WITHOUT basis the trial court's finding
that the private respondents had acquired a
vested right over the passageway in question
by virtue of prescription
SC
easement right of way is discontinuous and
cannot be acquired by prescription
Unfortunately, after making the correct
pronouncement, the respondent Appellate
Court did not order the reversal of the trial
court's decision and the dismissal of the
complaint after holding that no easement had
been validly constituted over the petitioner's
property. Instead, the Appellate Court went on
to commit a reversible error by considering the
passageway in issue as a compulsory
easement which the private respondents, as
owners of the "dominant" estate, may demand
from the petitioner the latter being the owner of
the "servient" estate.
Art. 649. The owner, or any person who by virtue of
a real right may cultivate or use any immovable,
which is surrounded by other immovables
pertaining to other persons and without adequate
outlet to a public highway, is entitled to demand a
right of way through the neighboring estates, after
PAYMENT of the proper indemnity.
Should this easement be established in such a
manner that its use may be continuous for all the
needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of
the value of the land occupied and the amount of
the damage caused to the servient estate.
In case the right of way is limited to the necessary
passage for the cultivation of the estate
surrounded by others and for the gathering of
its crops through the servient estate without a
permanent way, the indemnity shall consist in the
payment of the damage caused by such
encumbrance.
This easement is not compulsory if the isolation of
the immovable is due to the proprietor's own acts.
Art. 650. The easement of right of way shall be
established at the point least prejudicial to the
servient estate, and, insofar as consistent with this
rule, where the distance from the dominant estate
to a public highway may be the shortest.
the owner of the DOMINANT ESTATE may validly
claim a compulsory right of way only after he has
established the existence of four requisites, to wit:
(1) the (dominant) estate is surrounded by other
immovables and is without adequate outlet to a
public highway;
(2) after payment of the proper indemnity;
(3) the isolation was not due to the proprietor's own
acts; and
(4) the right of way claimed is at a point least
prejudicial to the servient estate.
Additionally, the burden of proving the existence
of the foregoing pre-requisites lies on the owner of
the dominant estate.
1) the (dominant) estate is surrounded by
other immovables and is without
adequate outlet to a public highway;
 failed to prove that there is no adequate
outlet from their respective properties to a
public highway
 confirmed by the appellate court, "there is
another outlet for the plaintiffs (private
respondents) to the main road
 when there is already an existing adequate
outlet from the dominant estate to a public
highway, even if the said outlet, for one
reason or another, be inconvenient, the
need to open up another servitude is
entirely unjustified. For to justify the
imposition of an easement or right of way,
"there must be a real, not a fictitious or
artificial necessity for it."
2) after payment of the proper indemnity;
 private respondents failed to indicate in their
complaint or even to manifest during the
trial of the case that they were willing to
indemnify fully the petitioner for the right of
way to be established over its property.

3) the isolation was not due to the
proprietor's own acts
  not able to show that the isolation of their
property was not due to their personal or
their predecessors-in-interest's own acts.
4) the right of way claimed is at a point
least prejudicial to the servient estate.
 failed to allege, much more introduce any
evidence, that the passageway they seek to
be re-opened is at a point least prejudicial
to the petitioner
Considering that the petitioner operates a hotel and
beach resort in its property, it must undeniably
maintain a strict standard of security within its
premises. Otherwise, the convenience, privacy,
and safety of its clients and patrons would be
compromised.

while a RIGHT OF WAY is legally demandable,

the owner of the dominant estate is not at liberty to
impose one based on arbitrary choice. Under
Article 650 of the Code, it shall be established upon
two criteria:
(1) at the point least prejudicial to the servient
state; and
(2) where the distance to a public highway may
be the shortest.
"least prejudice" prevails over "shortest distance."
each case must be weighed according to its
individual merits, and judged according to the
sound discretion of the court. "The court," says
Tolentino, "is not bound to establish what is the
shortest; a longer way may be established to avoid
injury to the servient tenement, such as when there
are constuctions or walls which can be avoided by
a roundabout way, or to secure the interest of the
dominant owner, such as when the shortest
distance would place the way on a dangerous
decline."

Tomas vs. CA
Facts:
Prior to 1960, when the servient estate was not yet
enclosed with a concrete fence, persons going to
the national highway just crossed the servient
estate at no particular point. However, in 1960
when private respondents constructed a fence
around the servient estate, a roadpath
measuring 25 meters long and about a meter
wide was constituted to provide access to the
highway. One-half meter width of the path was
taken from the servient estate and the other one-
half meter portion was taken from another lot
owned by Mamerto Magsino. No compensation
was asked and non was given for the portions
constituting the pathway.
It was also about that time that petitioner started
his plant nursery business on his land where he
also had his abode. He would use said pathway
as passage to the highway for his family and for
his customers.
SC
Petitioner's plant nursery business through sheer
hard work flourished and with that, it became more
and more difficult for petitioner to haul the plants
and garden soil to and from the nursery and the
highway with the use of pushcarts. Petitioner was
able to buy an owner-type jeep which he could use
for transporting his plants.
However, that jeep could not pass through the
roadpath and so he approached the servient
estate owners and requested that they sell to him
one and one-half of their property to be added
to the existing pathway so as to allow passage
for his jeepney
his request was turned down by the two widows
and further attempts at negotiation proved futile
Petitioner instituted an action to seek the
issuance of a writ of easement of a right of way
over an additional width of at least two (2)
meters over the De Saguns' 405-square-meter
parcel of land.
RTC
 the attention of the lower court was called to the
existence of another exit to the highway, only
eighty (80) meters away from the dominant
estate.
 rendered judgment dismissing petitioner's
complaint.
CA
On appeal, the Court of Appeals affirmed the
decision of the trial court on January 28, 1987
and rejected petitioner's claim for an additional
easement.
took into consideration the presence of a dried
river bed only eighty (80) meters away from the
dominant estate and conjectured that petitioner
might have actually driven his jeep through the
river bed in order to get to the highway, and that
the only reason why he wanted a wider easement
through the De Sagun's estate was that it was
more convenient for his business and family
needs.
Court finds that petitioner has sufficiently
established his claim for an additional
easement of right of way
While there is a dried river bed less than 100
meters from the dominant tenement, that access
is grossly inadequate.
Generally, the right of way may be demanded:
(1) when there is absolutely NO ACCESS to a
public highway, and
(2) when, even if there is one, it is difficult or
dangerous to use or is grossly insufficient.
the RIVER BED route is
 traversed by a semi-concrete bridge and
 there is NO ingress nor egress from the
highway.
 For the jeep to reach the level of the highway,
it must literally jump four (4) to five (5)
meters up.
 during the rainy season, the river bed is
impassable due to the floods.
 Thus, it can only be USED at certain times
of the year. With the inherent disadvantages
of the river bed which make passage
 difficult, if not impossible, it is if there were is entitled to demand a right of way through
no outlet at all. the neighboring estates, after payment of
the proper indemnity.
Where a private property has no access to a
public road, it has the right of easement over
Should this easement be established in
adjacent servient estates as a matter of law.
such a manner that its use may be
Article 651 of the Civil Code provides that "(t)he continuous for all the needs of the dominant
width of the easement of right of way shall be that estate, establishing a permanent passage,
which is sufficient for the needs of the the indemnity shall consist of the value of
dominant estate, and may accordingly be the land occupied and the amount of the
changed from time to time." This is taken to mean damage caused to the servient estate.
that under the law, it is the NEEDS of the
dominant property which ultimately determine
the WIDTH of the passage. And these needs
may vary from time to time.
When petitioner started out as a plant nursery
operator, he and his family could easily make do
with a few pushcarts to tow the plants to the
national highway. But the business grew and with
it the need for the use of modern means of
conveyance or transport. Manual hauling of
plants and garden soil and use of pushcarts have
become extremely cumbersome and physically
taxing. To force petitioner to leave his jeepney in
the highway, exposed to the elements and to the
risk of theft simply because it could not pass
through the improvised pathway, is sheer
pigheadedness on the part of the servient estate
and can only be counter-productive for all the
people concerned.
Petitioner should not be denied a passageway
wide enough to accomodate his jeepney since
that is a reasonable and necessary aspect of
the plant nursery business.
We are well aware that an additional one and one-
half (1 1/2) meters in the width of the pathway will
reduce the servient estate to only about 342.5
square meters. But petitioner has expressed
willingness to exchange an equivalent portion
of his land to compensate private
respondents for their loss.

Since the easement to be established in favor of

petitioner is of a continuous and permanent
nature, the indemnity shall consist of the value of
the land occupied and the amount of the damage
caused to the servient estate pursuant to Article
649 of the Civil Code which states in part:

Art. 649. The owner, or any person who by

virtue of a real right may cultivate or use any
immovable, which is surrounded by other
immovables pertaining to other persons and
without adequate outlet to a public highway,
 Tanedo vs Sps Sim and Antonio Cardenas
Facts:
The private respondent Antonio Cardenas was the
owner of two (2) contiguous parcels of land
situated in Cebu City which he had inherited from
Lourdes Cardenas and more particularly known
as Lot 7501-A, with an area of 140 square meters
and Lot 7501-B, with an area of 612 square
meters.
Lot 7501-A (140 sqm)
 an apartment building
 A small portion of the apartment building on
Lot 7501-A also stands on Lot 7501-B.
Lot 7501-B (612sqm)
 one four-door apartment of concrete and
strong materials
 one two-storey house of strong materials
 a bodega of strong materials
 and a SEPTIC TANK for the common
use of the occupants of Lots 7501-A
and 7501-B
 SC
On 5 February 1982, said Antonio Cardenas sold
Lot 7501-A to herein petitioner Eduardo C.
Tañedo.  it cannot be denied that petitioner Tanedo cannot
Antonio Cardenas, on that same day, also
mortgaged Lot 7501-B to said Eduardo C. Tañedo
as a security for the payment of a loan in the
amount of P10,000.00.  lot sought to be redeemed, has an area of 612
Antonio Cardenas further agreed that he would
sell Lot 7501-B only to Eduardo Tañedo in case
he should decide to sell it, as the septic tank in
Lot 7501-B services Lot 7501-A and the apartment
building on Lot 7501-A has a part standing on Lot
7501-B.
This was confirmed in a letter, dated 26 February
1982, wherein Antonio Cardenas asked Tañedo
not to deduct the mortgage loan of P10,000.00
from the purchase price of Lot 7501-A "because
as we have previously agreed, I will sell to you
Lot 7501-B.
Antonio Cardenas, however, sold Lot 7501-B to
the herein respondent spouses Romeo and
Pacita Sim.
Upon learning of the sale, Eduardo Tañedo offered
to redeem the property from Romeo Sim. But
the latter refused. Instead, Romeo Sim blocked
the sewage pipe connecting the building of
Eduardo Tañedo built on Lot 7501-A, to the
septic tank in Lot 7501-B. He also asked Tañedo
to remove that portion of his building enroaching
on Lot 7501-B.
filed an action for Legal Redemption and
damages, with a prayer for the issuance of a writ
of preliminary injunction,
the spouses Romeo and Pacita Sim claimed that
they are the absolute owners of Lot 7501-B and
that Eduardo Tañedo has no right to redeem the
land under Art. 1622 of the Civil Code as the land
sought to be redeemed is much bigger than the
land owned by Tañedo.
Antonio Cardenas, upon the other hand,
ADMITTED that he had agreed to sell Lot 7501-
B to Eduardo Tañedo and claimed by way of
cross-claim against the spouses Romeo and
Pacita Sim that the Deed of Sale he had
executed in favor of said spouses was only
intended as an equitable mortgage, to secure
the payment of amounts received by him from
said spouses as petty loans . 
The Court finds merit in the petition
redeem the entire Lot 7501-B from the spouses
Romeo and Pacita Sim pursuant to the provisions of
Art. 1622 Romeo and Pacita Sim pursuant to the
provisions of Art. 1622 of the Civil Code, since the
square meters which is MUCH BIGGER, area-wise,
than the lot owned by petitioner Tañedo.
petitioner seeks to purchase only that small
portion of Lot 7501-B occupied by his apartment
building, because the spouses Romeo and Pacita
Sim had told him to remove that portion of his
building which enroaches upon Lot 7501-B. Whether
or not this is possible should have been determined
at the pre-trial stage or trial on the merits.
the finding of the trial court that petitioner Tañedo's
right to continue to use the septic tank, erected on
Lot 7501-B, ceased upon the subdivision of the
land and its subsequent sale to different owners who
do not have the same interest,16 also appears to be
contrary to law.
Article 631 of the Civil Code enumerates the
grounds for the extinguishment of an easement.
Said article provides:
 Art. 631. Easements are extinguished:
(1) By merger in the same person of the
ownership of the dominant and servient estates;
(2) By non-user for ten years; with respect to
discontinuous easements, this period shall be
computed from the day on which they ceased to
be used; and, with respect to continuous
easements, from the day on which an act
contrary to the same took place;
(3) When either or both of the estates fall into
such condition that the easement cannot be
used; but it shall revive if the subsequent
condition of the estates or either of them should
again permit its use, unless when the use
becomes possible, sufficient time for
prescription has elapsed, in accordance with
the provisions of the preceding number;
No Statement abolishing or extinguishing the
easement of drainage was mentioned in the deed
of sale of Lot 7501-A to Eduardo Tañedo. Nor did
Antonio Cardenas stop the use of the drain pipe
and septic tank by the occupants of Lot 7501-A
before he sold said lot to Eduardo Tafiedo.
Hence, the use of the septic tank is continued by
Operation of Law. Accordingly, the spouses
Romeo and Pacita Sim the new owners of the
servient estate (Lot 7501- B), cannot impair, in
any manner whatsoever, the use of the
servitude. 

(4) By the expiration of the term or the

fulfillment of the conditions, if the easement is
temporary or conditional;

(5) By the renunciation of the owner of the

dominant estate;

(6) By the redemption agreed upon between the

owners of the dominant and servient estates.

the alienation of the dominant and servient

estates to different persons is not one of the
grounds for the extinguishment of an easement.
On the contrary, use of the easement is continued
by operation of law.

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.
Salazar vs Mendoza
Facts:
Lot 436 and some of the surrounding estates,
including Lot 433, were irrigated with water
from Sapang Tuyo, a public stream, flowing through
a dike that traversed Lots 431, 434, 433 and 461.
The portion of this dike that passed through Lot
433 branched near the boundary between this
lot and Lot 434 into a canal which ran across
the rest of Lot 433 up to Lot 436. It was with the
water flowing through this canal that Lot 436 used
to be irrigated.
On February 24, 1953 respondent Damaso
Mendoza, a lessee of Lot 433, demolished the said
canal, thereby stopping the flow of the water and
depriving Crispina Salazar's Lot 436 of the irrigation
facilities which it had formerly enjoyed. Her
requests that the canal be rebuilt and the water flow
restored having been turned down,
Salazar commenced the present suit on March 2,
1953, praying that these reliefs be granted her by
the Court
RTC
The trial court issued a writ of preliminary
injunction as prayed for by the plaintiff, ordering
the defendants to restore the demolished portion of
the canal and to refrain from again demolishing the
same pending trial, but the writ was DISSOLVED
on March 9, 1953, upon a counterbond filed by the
defendants.
The latter answered with their own counterclaim for
damages, denied the substantial averments of the
complaint and put up a number of affirmative
defenses.
After trial, the Court of First Instance of Bataan,
finding that the demolished canal had been in
existence for more than thirty years and that the
big dike from which it extended had been
constructed for the use of Lot 436 as well as
several other lots belonging to different owners,
rendered judgment on April 10, 1956, ordering the
defendants to restore at their expense the canal in
question, to connect it with the canal found in Lot
436 and to cause the corresponding annotation of
the encumbrance on Transfer Certificate of Title
1059 covering Lot 433;
CA
Court of Appeals reversed the decision of the
Court of First Instance and
held that since the easement of aqueduct over
Lot 433 for the benefit of Lot 436 was a
VOLUNTARY one, the same was
extinguished when Lot 433 was
REGISTERED on July 23, 1923 and the
corresponding Certificate of Title was
issued WITHOUT the annotation of said
easement as a subsisting encumbrance.
The main issue as set forth in the decision of the
Court of Appeals is the NATURE of the easement
of aqueduct claimed by the petitioner. If
VOLUNTARY, according to the said Court, the
easement was EXTINGUISHED upon the
registration of Lot 433 in 1923, pursuant to
Section 39 of Act No. 496, which provides:
But if there are easements or other rights
appurtenant to a parcel of registered land which
for any reason have failed to be registered,
such easements or rights shall remain so
appurtenant notwithstanding such failure and
shall be held to pass with the land until cut off
or extinguished by the registration of the
servient estate, or in any other manner.
(Emphasis supplied).
In arriving at the conclusion that the easement in
question was voluntary and not legal or
compulsory, the Court of Appeals took into
consideration the provisions of Articles 557 and 558
of the Spanish Civil Code, now Articles 642 and
643 of the new Civil Code respectively, as follows:
ART. 642. Any person who may wish to use
upon his own estate any water of which he can
dispose shall have the right to make it flow
through the intervening estates, with the
obligation to indemnify their owners, as well as
the owners of the lower estates upon which the
waters may filter or descend.
ART. 643. One desiring to make use of the right
granted in the preceding article is obliged:
(1) To prove that he can dispose of the water
and that it is sufficient for the use for which it is
intended;

(2) To show that the proposed right of way is

the most convenient and the least onerous to
third persons;

(3) To indemnify the owner of the servient

estate in the manner determined by the laws
and regulations.