CD9

E. Usufruct

Case Digest No. 1

Mercedes Moralidad vs.
Sps. Diosdado Pernes and Arlene Pernes
G.R. No. 152809 (J. Garcia) August 3, 2006

a. Doctrine: 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. It is also defined as the right to enjoy the property of
another temporarily, including both the jus utendi and the jus
fruendi, with the owner retaining the jus disponendi or the power to
alienate the same.

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.

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.

b. Case Title: Mercedes Moralidad vs. Sps. Diosdado Pernes and Arlene
Pernes G.R. No. 152809 (J. Garcia) August 3, 2006

c. Facts: 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. 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.

Sometime in 1986 while in USA, 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, 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.

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. 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
prompted petitioner in filing 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, 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.

Dissatisfied, the respondent spouses appealed to the RTC of Davao

City. 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.

Since the defendants-appellees are admittedly possessors of the

property by permission from plaintiff, 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.

Petitioner went to the Court of Appeal. 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.
d. Issue: Whether or not the Court of Appeals erred in applying Articles
448 and 546 and the provisions of the code of usufruct instead of article
1678 of the civil code.

e. Held: 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. It is also defined as the right to enjoy the property of
another temporarily, including both the jus utendi and the jus
fruendi, with the owner retaining the jus disponendi or the power to
alienate the same.

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.

It is undisputed that petitioner expressly authorized respondents to

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.

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.

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 "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" (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 "That 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.

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." 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). (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.
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 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.
Case No. 2
National Housing Authority (NHA) vs. Court of Appeals
G. R. No. 148830 (J. Davide) April 13, 2005

a. Doctrine: A usufruct may be constituted for a specified term and

under such conditions as the parties may deem convenient subject to
the legal provisions on usufruct. A usufructuary may lease the object
held in usufruct

ART. 565. The rights and obligations of the usufructuary shall be those
provided in the title constituting the usufruct; in default of such title, or in
case it is deficient, the provisions contained in the two following
Chapters shall be observed.

A usufruct is not simply about rights and privileges. A usufructuary has

the duty to protect the owner’s interests. One such duty is found in
Article 601 of the Civil Code which states: ART. 601. The usufructuary
shall be obliged to notify the owner of any act of a third person, of which
he may have knowledge, that may be prejudicial to the rights of
ownership, and he shall be liable should he not do so, for damages, as if
they had been caused through his own fault.

A 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.

ART. 605. Usufruct cannot be constituted in favor of a town,

corporation, or association for more than fifty years. If it has been
constituted, and before the expiration of such period the town is
abandoned, or the corporation or association is dissolved, the usufruct
shall be extinguished by reason thereof. (Emphasis added)

b. Case Title: National Housing Authority (NHA) vs. Court of Appeals

(CA) G. R. No. 148830 (J. Davide) April 13, 2005

c. Facts: On 24 October 1968, Proclamation No. 481 issued by then

President Ferdinand Marcos set aside a 120-hectare portion of land in
Quezon City owned by the NHA as reserved property for the site of the
National Government Center ("NGC"). On 19 September 1977,
President Marcos issued Proclamation No. 1670, which removed a
seven-hectare portion from the coverage of the NGC. Proclamation No.
1670 gave MSBF usufructuary rights over this segregated portion, as
follows:

Pursuant to the powers vested in me by the Constitution and the

laws of the Philippines, I, FERDINAND E. MARCOS, President of
the Republic of the Philippines, do hereby exclude from the
operation of Proclamation No. 481, dated October 24, 1968, which
established the National Government Center Site, certain parcels
of land embraced therein and reserving the same for the Manila
Seedling Bank Foundation, Inc., for use in its operation and
projects, subject to private rights if any there be, and to future
survey, under the administration of the Foundation.

This parcel of land, which shall embrace 7 hectares, shall be

determined by the future survey based on the technical
descriptions found in Proclamation No. 481, and most particularly
 on the original survey of the area, dated July 1910 to June 1911,
and on the subdivision survey dated April 19-25, 1968.

MSBF occupied the area granted by Proclamation No. 1670. Over the
years, MSBF’s occupancy exceeded the seven-hectare area subject to
its usufructuary rights. By 1987, MSBF occupied approximately 16
hectares. By then the land occupied by MSBF was bounded by Epifanio
de los Santos Avenue ("EDSA") to the west, Agham Road to the east,
Quezon Avenue to the south and a creek to the north.

On 18 August 1987, MSBF leased a portion of the area it occupied to

BGC and other stallholders. BGC leased the portion facing EDSA, which
occupies 4,590 square meters of the 16-hectare area.

On 11 November 1987, President Corazon Aquino issued Memorandum

Order No. 127 ("MO 127") which revoked the reserved status of "the 50
hectares, more or less, remaining out of the 120 hectares of the NHA
property reserved as site of the National Government Center." MO 127
also authorized the NHA to commercialize the area and to sell it to the
public.

On 15 August 1988, acting on the power granted under MO 127, the

NHA gave BGC ten days to vacate its occupied area. Any structure left
behind after the expiration of the ten-day period will be demolished by
NHA. BGC then filed a complaint for injunction on 21 April 1988 before
the trial court. On 26 May 1988, BGC amended its complaint to include
MSBF as its co-plaintiff.
The trial court agreed with BGC and MSBF that Proclamation No. 1670
gave MSBF the right to conduct the survey, which would establish the
seven-hectare area covered by MSBF’s usufructuary rights. However,
the trial court held that MSBF failed to act seasonably on this right to
conduct the survey. The trial court ruled that the previous surveys
conducted by MSBF covered 16 hectares, and were thus inappropriate
to determine the seven-hectare area. The trial court concluded that to
allow MSBF to determine the seven-hectare area now would be grossly
unfair to the grantor of the usufruct.

On 8 March 1994, the trial court dismissed BGC’s complaint for

injunction. The NHA demolished BGC’s facilities soon thereafter.

Not content with the trial court’s ruling, BGC appealed the trial court’s
Decision to the appellate court. Initially, the appellate court agreed with
the trial court that Proclamation No. 1670 granted MSBF the right to
determine the location of the seven-hectare area covered by its
usufructuary rights. However, the appellate court ruled that MSBF did in
fact assert this right by conducting two surveys and erecting its main
structures in the area of its choice. Thus, the appellate court reversed
the trial court’s ruling.

d. Issue: Whether the premises leased by BGC from MSBF is within the
seven (7) hectare area that proclamation No. 1670 granted to MSBF by
way of usufruct.

e. Held: We remand this petition to the trial court for a joint survey to
determine finally the metes and bounds of the seven-hectare area
subject to MSBF’s usufructuary rights.
The entire area bounded by Agham Road to the east, EDSA to the west,
Quezon Avenue to the south and by a creek to the north measures
approximately 16 hectares. Proclamation No. 1670 gave MSBF a
usufruct over only a seven-hectare area. The BGC’s leased portion is
located along EDSA.

A usufruct may be constituted for a specified term and under such

conditions as the parties may deem convenient subject to the legal
provisions on usufruct. A usufructuary may lease the object held in
usufruct. Thus, the NHA may not evict BGC if the 4,590 square meter
portion MSBF leased to BGC is within the seven-hectare area held in
usufruct by MSBF. The owner of the property must respect the lease
entered into by the usufructuary so long as the usufruct exists. However,
the NHA has the right to evict BGC if BGC occupied a portion outside of
the seven-hectare area covered by MSBF’s usufructuary rights.

MSBF’s survey shows that BGC’s stall is within the seven-hectare area.
On the other hand, NHA’s survey shows otherwise. The entire
controversy revolves on the question of whose land survey should
prevail.

Article 565 of the Civil Code states: ART. 565. The rights and obligations
of the usufructuary shall be those provided in the title constituting the
usufruct; in default of such title, or in case it is deficient, the provisions
contained in the two following Chapters shall be observed.

In the present case, Proclamation No. 1670 is the title constituting the
usufruct. Proclamation No. 1670 categorically states that the seven-
hectare area shall be determined "by future survey under the
administration of the Foundation subject to private rights if there be any."
The appellate court and the trial court agree that MSBF has the latitude
to determine the location of its seven-hectare usufruct portion within the
16-hectare area. The appellate court and the trial court disagree,
however, whether MSBF seasonably exercised this right.

It is clear that MSBF conducted at least two surveys. Although both

surveys covered a total of 16 hectares, the second survey specifically
indicated a seven-hectare area shaded in yellow. MSBF made the first
survey in 1984 and the second in 1986, way before the present
controversy started. MSBF conducted the two surveys before the lease
to BGC. The trial court ruled that MSBF did not act seasonably in
exercising its right to conduct the survey. Confronted with evidence that
MSBF did in fact conduct two surveys, the trial court dismissed the two
surveys as self-serving. This is clearly an error on the part of the trial
court. Proclamation No. 1670 authorized MSBF to determine the location
of the seven-hectare area. This authority, coupled with the fact that
Proclamation No. 1670 did not state the location of the seven-hectare
area, leaves no room for doubt that Proclamation No. 1670 left it to
MSBF to choose the location of the seven-hectare area under its
usufruct.

Inobaya testified that his main consideration in using Agham Road as

the starting point for his survey was the presence of a gate there. The
location of the gate is not a sufficient basis to determine the starting
point. MSBF’s right as a usufructuary as granted by Proclamation No.
1670 should rest on something more substantial than where MSBF
chose to place a gate.
To prefer the NHA’s survey to MSBF’s survey will strip MSBF of most of
its main facilities. Only the main building of MSBF will remain with MSBF
since the main building is near the corner of EDSA and Quezon Avenue.
The rest of MSBF’s main facilities will be outside the seven-hectare area.
On the other hand, this Court cannot countenance MSBF’s act of
exceeding the seven-hectare portion granted to it by Proclamation No.
1670. A usufruct is not simply about rights and privileges. A usufructuary
has the duty to protect the owner’s interests. One such duty is found in
Article 601 of the Civil Code which states:

ART. 601. The usufructuary shall be obliged to notify the owner of

any act of a third person, of which he may have knowledge, that
may be prejudicial to the rights of ownership, and he shall be liable
should he not do so, for damages, as if they had been caused
through his own fault.

A 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. This controversy would not
have arisen had MSBF respected the limit of the beneficial use given to
it. MSBF’s encroachment of its benefactor’s property gave birth to the
confusion that attended this case. To put this matter entirely to rest, it is
not enough to remind the NHA to respect MSBF’s choice of the location
of its seven-hectare area. MSBF, for its part, must vacate the area that is
not part of its usufruct. MSBF’s rights begin and end within the seven-
hectare portion of its usufruct. This Court agrees with the trial court that
MSBF has abused the privilege given it under Proclamation No. 1670.
The direct corollary of enforcing MSBF’s rights within the seven-hectare
area is the negation of any of MSBF’s acts beyond it.
A final point. Article 605 of the Civil Code states:

ART. 605. Usufruct cannot be constituted in favor of a town,

corporation, or association for more than fifty years. If it has
been constituted, and before the expiration of such period the
town is abandoned, or the corporation or association is dissolved,
the usufruct shall be extinguished by reason thereof. (Emphasis
added)

The law clearly limits any usufruct constituted in favor of a corporation or

association to 50 years. A usufruct is meant only as a lifetime grant.
Unlike a natural person, a corporation or association’s lifetime may be
extended indefinitely. The usufruct would then be perpetual. This is
especially invidious in cases where the usufruct given to a corporation or
association covers public land. Proclamation No. 1670 was issued 19
September 1977, or 28 years ago. Hence, under Article 605, the usufruct
in favor of MSBF has 22 years left.

MO 127 released approximately 50 hectares of the NHA property as

reserved site for the National Government Center. However, MO 127
does not affect MSBF’s seven-hectare area since under Proclamation
No. 1670, MSBF’s seven-hectare area was already "exclude[d] from the
operation of Proclamation No. 481, dated October 24, 1968, which
established the National Government Center Site."

WHEREFORE, the Decision of the Court of Appeals dated 30 March

2001 and its Resolution dated 25 June 2001 in CA-G.R. CV No. 48382
are SET ASIDE. This case is REMANDED to Branch 87 of the Regional
Trial Court of Quezon City, which shall order a joint survey by the
National Housing Authority and Manila Seedling Bank Foundation, Inc.
to determine the metes and bounds of the seven-hectare portion of
Manila Seedling Bank Foundation, Inc. under Proclamation No. 1670.
The seven-hectare portion shall be contiguous and shall include as
much as possible all existing major improvements of Manila Seedling
Bank Foundation, Inc. The parties shall submit the joint survey to the
Regional Trial Court for its approval within sixty days from the date
ordering the joint survey.

SO ORDERED.

Case No. 3
Maxima Hemedes vs. Court of Appeal (CA);
G.R. No. 107132 (J. Gonzaga-Reyes) October 8, 1999

a. Doctrine: Usufruct gives a right to enjoy the property of another with

the obligation of preserving its form and substance. The usufructuary is
entitled to all the natural, industrial and civil fruits of the property and
may personally enjoy the thing in usufruct, lease it to another, or alienate
his right of usufruct, even by a gratuitous title, but all the contracts he
may enter into as such usufructuary shall terminate upon the expiration
of the usufruct.
Clearly, only the jus utendi and jus fruendi over the property is
transferred to the usufructuary. The owner of the property maintains
the jus disponendi or the power to alienate, encumber, transform, and
even destroy the same. This right is embodied in the Civil Code, which
provides that the owner of property the usufruct of which is held by
another, may alienate it, although he cannot alter the property's form or
substance, or do anything which may be prejudicial to the usufructuary.

There is no doubt that the owner may validly mortgage the property in
favor of a third person and the law provides that, in such a case, the
usufructuary shall not be obliged to pay the debt of the mortgagor, and
should the immovable be attached or sold judicially for the payment of
the debt, the owner shall be liable to the usufructuary for whatever the
latter may lose by reason thereof.

b. Case Title: Maxima Hemedes vs. CA; G.R. No. 107132 (J. Gonzaga-
Reyes) October 8, 1999
c. Facts: The instant controversy involves a question of ownership over
an unregistered parcel of land, identified as Lot No. 6, plan Psu-111331,
with an area of 21,773 square meters, situated in Sala, Cabuyao,
Laguna. It was originally owned by the late Jose Hemedes, father of
Maxima Hemedes and Enrique D. Hemedes. On March 22, 1947 Jose
Hemedes executed a document entitled "Donation Inter Vivos With
Resolutory Conditions" whereby he conveyed ownership over the
subject land, together with all its improvements, in favor of his third wife,
Justa Kauapin, subject to the following resolutory conditions:

(a) Upon the death or remarriage of the DONEE, the title to the
property donated shall revert to any of the children, or their
 heirs, of the DONOR expressly designated by the DONEE in a
public document conveying the property to the latter; or
(b) In absence of such an express designation made by the
DONEE before her death or remarriage contained in a public
instrument as above provided, the title to the property shall
automatically revert to the legal heirs of the DONOR in
common.

Pursuant to the first condition above mentioned, Justa Kausapin

executed on September 27, 1960 a "Deed of Conveyance of
Unregistered Real Property by Reversion" conveying to Maxima
Hemedes the subject property under the following terms —
That the said parcel of land was donated unto me by the said
Jose Hemedes, my deceased husband, in a deed of
"DONATION INTER VIVOS WITH RESOLUTORY
CONDITIONS" executed by the donor in my favor, and duly
accepted by me on March 22, 1947, before Notary Public Luis
Bella in Cabuyao, Laguna;
That the donation is subject to the resolutory conditions
appearing in the said deed of "DONATION INTER VIVOS WITH
RESOLUTORY CONDITIONS," as follows:
(a) Upon the death or remarriage of the DONEE, the
title to the property donated shall revert to any of the
children, or their heirs, of the DONOR expressly
designated by the DONEE in a public document
conveying the property to the latter; or
(b) In absence of such an express designation made
by the DONEE before her death or remarriage
contained in a public instrument as above provided,
 the title to the property shall automatically revert to
the legal heirs of the DONOR in common.

That, wherefore, in virtue of the deed of donation above

mentioned and in the exercise of my right and privilege under
the terms of the first resolutory condition therein contained and
hereinabove reproduced, and for and in consideration of my
love and affection, I do hereby by these presents convey,
transfer, and deed unto my designee, MAXIMA HEMEDES, of
legal age, married to RAUL RODRIGUEZ, Filipino and resident
of No. 15 Acacia Road, Quezon City, who is one of the children
and heirs of my donor, JOSE HEMEDES, the ownership of, and
title to the property hereinabove described, and all rights and
interests therein by reversion under the first resolutory condition
in the above deed of donation; Except the possession and
enjoyment of the said property which shall remain vested in me
during my lifetime, or widowhood and which upon my death or
remarriage shall also automatically revert to, and be transferred
to my designee, Maxima Hemedes.

Maxima Hemedes, through her counsel, filed an application for

registration and confirmation of title over the subject unregistered land.
Subsequently, Original Certificate of Title (OCT) No. (0-941) 0-198 was
issued in the name of Maxima Hemedes married to Raul Rodriguez by
the Registry of Deeds of Laguna on June 8, 1962, with the annotation
that "Justa Kausapin shall have the usufructuary rights over the parcel of
land herein described during her lifetime or widowhood."
It is claimed by R & B Insurance that on June 2, 1964, Maxima Hemedes
and her husband Raul Rodriguez constituted a real estate mortgage
over the subject property in its favor to serve as security for a loan which
they obtained in the amount of P6,000.00. On February 22, 1968, R & B
Insurance extrajudicially foreclosed the mortgage since Maxima
Hemedes failed to pay the loan even after it became due on August 2,
1964. The land was sold at a public auction on May 3, 1968 with R & B
Insurance as the highest bidder and a certificate of sale was issued by
the sheriff in its favor. Since Maxima Hemedes failed to redeem the
property within the redemption period, R & B Insurance executed an
Affidavit of Consolidation dated March 29, 1974 and on May 21, 1975
the Register of Deeds of Laguna cancelled OCT No. (0-941) 0-198 and
issued Transfer Certificate of Title (TCT) No. 41985 in the name of R & B
Insurance. The annotation of usufruct in favor of Justa Kausapin was
maintained in the new title.

Despite the earlier conveyance of the subject land in favor of Maxima

Hemedes, Justa Kausapin executed a "Kasunduan" on May 27, 1971
whereby she transferred the same land to her stepson Enrique D.
Hemedes, pursuant to the resolutory condition in the deed of donation
executed in her favor by her late husband Jose Hemedes. Enrique D.
Hemedes obtained two declarations of real property — in 1972, and
again, in 1974, when the assessed value of the property was raised.
Also, he has been paying the realty taxes on the property from the time
Justa Kausapin conveyed the property to him in 1971 until 1979. In the
cadastral survey of Cabuyao, Laguna conducted from September 8,
1974 to October 10, 1974, the property was assigned Cadastral No.
2990, Cad. 455-D, Cabuyao Cadastre, in the name of Enrique Hemedes.
Enrique Hemedes is also the named owner of the property in the records
of the Ministry of Agrarian Reform office at Calamba, Laguna.

On February 28, 1979, Enriques D. Hemedes sold the property to

Dominium Realty and Construction Corporation (Dominium). On April 10,
1981, Justa Kausapin executed an affidavit affirming the conveyance of
the subject property in favor of Enrique D. Hemedes as embodied in the
"Kasunduan" dated May 27, 1971, and at the same time denying the
conveyance made to Maxima Hemedes.

On May 14, 1981, Dominium leased the property to its sister corporation
Asia Brewery, Inc. (Asia Brewery) who, even before the signing of the
contract of lease, constructed two warehouses made of steel and
asbestos costing about P10,000,000.00 each. Upon learning of Asia
Brewery's constructions upon the subject property, R & B Insurance sent
it a letter on March 16, 1981 informing the former of its ownership of the
property as evidenced by TCT No. 41985 issued in its favor and of its
right to appropriate the constructions since Asia Brewery is a builder in
bad faith. On March 27, 1981, a conference was held between R & B
Insurance and Asia Brewery but they failed to arrive at an amicable
settlement.

On May 8, 1981, Maxima Hemedes also wrote a letter addressed to Asia

Brewery wherein she asserted that she is the rightful owner of the
subject property by virtue of OCT No. (0-941) 0-198 and that, as such,
she has the right to appropriate Asia Brewery's constructions, to demand
its demolition, or to compel Asia Brewery to purchase the land. In
another letter of the same date addressed to R & B Insurance, Maxima
Hemedes denied the execution of any real estate mortgage in favor of
the latter.

On August 27, 1981, Dominium and Enrique D. Hemedes filed a

complaint with the Court of First Instance of Binan, Laguna for the
annulment of TCT No. 41985 issued in favor of R & B Insurance and/or
the reconveyance to Dominium of the subject property. Specifically, the
complaint alleged that Dominium was the absolute owner of the subject
property by virtue of the February 28, 1979 deed of sale executed by
Enrique D. Hemedes, who in turn obtained ownership of the land from
Justa Kausapin, as evidenced by the "Kasunduan" dated May 27, 1971.
The plaintiffs asserted that Justa Kausapin never transferred the land to
Maxima Hemedes and that Enrique D. Hemedes had no knowledge of
the registration proceedings initiated by Maxima Hemedes.

After considering the merits of the case, the trial court rendered
judgment on February 22, 1989 in favor of plaintiffs Dominium and
Enrique D. Hemedes, the dispositive portion of which states —

WHEREFORE, judgment is hereby rendered:

(a) Declaring Transfer Certificate of Title No. 41985 of the
Register of Deeds of Laguna null and void and ineffective;
(b) Declaring Dominium Realty and Construction
Corporation the absolute owner and possessor of the
parcel of land described in paragraph 3 of the complaint;
(c) Ordering the defendants and all persons acting for
and/or under them to respect such ownership and
possession of Dominium Realty and Construction
Corporation and to forever desist from asserting adverse
 claims thereon nor disturbing such ownership and
possession; and
(d) Directing the Register of Deeds of Laguna to cancel
said Transfer Certificate of Title No. 41985 in the name of
R & B Insurance Corporation, and in lieu thereof, issue a
new transfer certificate of title in the name of Dominium
Realty and Construction Corporation. No pronouncement
as to costs and attorney's fees.

Both R & B Insurance and Maxima Hemedes appealed from the trial
court's decision. On September 11, 1992 the Court of Appeals affirmed
the assailed decision in toto and on December 29, 1992, it denied R & B
Insurance's motion for reconsideration. Thus, Maxima Hemedes and R &
B Insurance filed their respective petitions for review with this Court.

d. Issue: The primary issue to be resolved in these consolidated

petitions is which of the two conveyances by Justa Kausapin, the first in
favor of Maxima Hemedes and the second in favor of Enrique D.
Hemedes, effectively transferred ownership over the subject land.

e. Held: We uphold petitioner R & B Insurance's assertion of ownership

over the property in dispute, as evidenced by TCT No. 41985, subject to
the usufructuary rights of Justa Kausapin.

The Register of Deeds of Laguna issued OCT No. (0-941) 0-198 in favor
of Maxima Hemedes on the strength of the "Deed of Conveyance of
Unregistered Real Property by Reversion" executed by Justa Kausapin.
Public respondent upheld the trial court's finding that such deed is sham
and spurious and has "no evidentiary value under the law upon which
claimant Maxima Hemedes may anchor a valid claim of ownership over
the property." In ruling thus, it gave credence to the April 10, 1981
affidavit executed by Justa Kausapin repudiating such deed of
conveyance in favor of Maxima Hemedes and affirming the authenticity
of the "Kasunduan" in favor of Enrique D. Hemedes. Also, it considered
as pivotal the fact that the deed of conveyance in favor of Maxima
Hemedes was in English and that it was not explained to Justa
Kausapin, although she could not read nor understand English; thus,
Maxima Hemedes failed to discharge her burden, pursuant to Article
1332 of the Civil Code, to show that the terms thereof were fully
explained to Justa Kausapin. Public respondent concluded by holding
that the registration of the property on the strength of the spurious deed
of conveyance is null and void and does not confer any right of
ownership upon Maxima Hemedes.

In upholding the deed of conveyance in favor of Maxima Hemedes, we

must concomitantly rule that Enrique D. Hemedes and his transferee,
Dominium, did not acquire any rights over the subject property. Justa
Kausapin sought to transfer to her stepson exactly what she had earlier
transferred to Maxima Hemedes — the ownership of the subject property
pursuant to the first condition stipulated in the deed of donation executed
by her husband. Thus, the donation in favor of Enrique D. Hemedes is
null and void for the purported object thereof did not exist at the time of
the transfer, having already been transferred to his sister. Similarly, the
sale of the subject property by Enrique D. Hemedes to Dominium is also
a nullity for the latter cannot acquire more rights than its predecessor-in-
interest and is definitely not an innocent purchaser for value since
Enrique D. Hemedes did not present any certificate of title upon which it
relied.

The declarations of real property by Enrique D. Hemedes, his payment

of realty taxes, and his being designated as owner of the subject
property in the cadastral survey of Cabuyao, Laguna and in the records
of the Ministry of Agrarian Reform office in Calamba, Laguna cannot
defeat a certificate of title, which is an absolute and indefeasible
evidence of ownership of the property in favor of the person whose
name appears therein. Particularly, with regard to tax declarations and
tax receipts, this Court has held on several occasions that the same do
not by themselves conclusively prove title to land.

The annotation of usufructuary rights in favor of Justa Kausapin upon

Maxima Hemedes' OCT does not impose upon R & B Insurance the
obligation to investigate the validity of its mortgagor's title. Usufruct gives
a right to enjoy the property of another with the obligation of preserving
its form and substance. The usufructuary is entitled to all the natural,
industrial and civil fruits of the property and may personally enjoy the
thing in usufruct, lease it to another, or alienate his right of usufruct, even
by a gratuitous title, but all the contracts he may enter into as such
usufructuary shall terminate upon the expiration of the usufruct.

Clearly, only the jus utendi and jus fruendi over the property is
transferred to the usufructuary. The owner of the property maintains
the jus disponendi or the power to alienate, encumber, transform, and
even destroy the same. This right is embodied in the Civil Code, which
provides that the owner of property the usufruct of which is held by
another, may alienate it, although he cannot alter the property's form or
substance, or do anything which may be prejudicial to the usufructuary.

There is no doubt that the owner may validly mortgage the property in
favor of a third person and the law provides that, in such a case, the
usufructuary shall not be obliged to pay the debt of the mortgagor, and
should the immovable be attached or sold judicially for the payment of
the debt, the owner shall be liable to the usufructuary for whatever the
latter may lose by reason thereof.

Based on the foregoing, the annotation of usufructuary rights in favor of

Justa Kausapin is not sufficient cause to require R & B Insurance to
investigate Maxima Hemedes' title, contrary to public respondent's
ruling, for the reason that Maxima Hemedes' ownership over the
property remained unimpaired despite such encumbrance. R & B
Insurance had a right to rely on the certificate of title and was not in bad
faith in accepting the property as a security for the loan it extended to
Maxima Hemedes.

WHEREFORE, the assailed decision of public respondent and its

resolution dated February 22, 1989 are REVERSED. We uphold
petitioner R & B Insurance's assertion of ownership over the property in
dispute, as evidenced by TCT No. 41985, subject to the usufructuary
rights of Justa Kausapin, which encumbrance has been properly
annotated upon the said certificate of title. No pronouncement as to
costs.
SO ORDERED.
F. EASEMENTS 1. Modes of Acquiring Easements

Case No. 1.

Pilar Devt. Corp. vs. Ramon Dumadag,

GR. No. 194336 (J. Velasco) March 11, 2013

a. Doctrines: An easement or servitude is a real right on another’s

property, corporeal and immovable, whereby the owner of the latter must
refrain from doing or allowing somebody else to do or something to be
done on his or her property, for the benefit of another person or
tenement; it is jus in re aliena, inseparable from the estate to which it
actively or passively belongs, indivisible, perpetual, and a continuing
property right, unless extinguished by causes provided by law. The Code
defines easement as an encumbrance imposed upon an immovable for
the benefit of another immovable belonging to a different owner or for
the benefit of a community, or of one or more persons to whom the
encumbered estate does not belong. There are two kinds of easement
according to source: by law or by will of the owners- the former are
called legal and the latter voluntary easement. A legal easement or
compulsory easement, or an easement by necessity constituted by law
has for its object either public use or the interest of private persons.

Squatters have no possessory rights over the land intruded upon.

The length of time that they may have physically occupied the land is
immaterial; they are deemed to have entered the same in bad faith, such
that the nature of their possession is presumed to have retained the
same character throughout their occupancy.
It is settled that the registration of the dominant estate under the Torrens
system without the annotation of the voluntary easement in its favor
does not extinguish the easement- it is the registration of the servient
estate as free, that is, without the annotation of the voluntary easement,
which extinguishes the easement. (Unisource Commercial and
Development Corporation vs. Chung, 593 SCRA 230 [2009])

An easement is established either by law or by will of the owners.

(Castro vs. Monsod, 641 SCRA 486 [2011])

b. Case Title: Pilar Devt. Corp. vs. Ramon Dumadag, GR. No. 194336,
(J. Velasco) March 11, 2013

c. Facts: On July 1, 2002, petitioner filed a Complaint for accion

publiciana with damages against respondents for allegedly building their
shanties, without its knowledge and consent, in its 5,613-square-meter
property located at Daisy Road, Phase V, Pilar Village Subdivision,
Almanza, Las Piñas City. It claims that said parcel of land, which is duly
registered in its name under Transfer Certificate of Title No. 481436 of
the Register of Deeds for the Province of Rizal, was designated as an
open space of Pilar Village Subdivision intended for village recreational
facilities and amenities for subdivision residents. In their Answer with
Counterclaim, respondents denied the material allegations of the
Complaint and briefly asserted that it is the local government, not
petitioner, which has jurisdiction and authority over them.
Trial ensued. Both parties presented their respective witnesses and the
trial court additionally conducted an ocular inspection of the subject
property.
On May 30, 2007, the trial court dismissed petitioner’s complaint, finding
that the land being occupied by respondents are situated on the sloping
area going down and leading towards the Mahabang Ilog Creek, and
within the three-meter legal easement; thus, considered as public
property and part of public dominion under Article 5027 of the New Civil
Code which could not be owned by the petitioner.

The trial court opined that respondents have a better right to possess the
occupied lot, since they are in an area reserved for public easement
purposes and that only the local government of Las Piñas City could
institute an action for recovery of possession or ownership.

Petitioner filed a motion for reconsideration, but the same was denied by
the trial court in its Order dated August 21, 2007.9 Consequently,
petitioner elevated the matter to the Court of Appeals which, on March 5,
2010, sustained the dismissal of the case.

Referring to Section 210 of Administrative Order (A.O.) No. 99-21 of the

Department of Environment and Natural Resources (DENR), the
appellate court ruled that the 3-meter area being disputed is located
along the creek which, in turn, is a form of a stream; therefore, belonging
to the public dominion. It said that petitioner could not close its eyes or
ignore the fact, which is glaring in its own title, that the 3-meter strip was
indeed reserved for public easement. By relying on the TCT, it is then
estopped from claiming ownership and enforcing its supposed right.
Unlike the trial court, however, the CA noted that the proper party entitled
to seek recovery of possession of the contested portion is not the City of
Las Piñas, but the Republic of the Philippines, through the Office of the
Solicitor General (OSG), pursuant to Section 10111 of Commonwealth
Act (C.A.) No. 141 (otherwise known as The Public Land Act).

The motion for reconsideration filed by petitioner was denied by the

Court of Appeals per Resolution dated October 29, 2010, hence, this
petition.

Anchoring its pleadings on Article 63012 of the Code, petitioner argues

that although the portion of the subject property occupied by
respondents is within the 3-meter strip reserved for public easement, it
still retains ownership thereof since the strip does not form part of the
public dominion. As the owner of the subject parcel of land, it is entitled
to its lawful possession, hence, the proper party to file an action for
recovery of possession against respondents conformably with Articles
42813 and 53914 of the Code.

d. Issue: Whether or the petitioners retains ownership of the subject

property.

e. Held: The petition is denied. An easement or servitude is a real right

on another’s property, corporeal and immovable, whereby the owner of
the latter must refrain from doing or allowing somebody else to do or
something to be done on his or her property, for the benefit of another
person or tenement; it is jus in re aliena, inseparable from the estate to
which it actively or passively belongs, indivisible, perpetual, and a
continuing property right, unless extinguished by causes provided by
law. The Code defines easement as an encumbrance imposed upon an
immovable for the benefit of another immovable belonging to a different
owner or for the benefit of a community, or of one or more persons to
whom the encumbered estate does not belong. There are two kinds of
easement according to source: by law or by will of the owners—the
former are called legal and the latter voluntary easement. A legal
easement or compulsory easement, or an easement by necessity
constituted by law has for its object either public use or the interest of
private persons.

While Article 630 of the Code provides for the general rule that “[t]he
owner of the servient estate retains the ownership of the portion on
which the easement is established, and may use the same in such a
manner as not to affect the exercise of the easement,” Article 635
thereof is specific in saying that “[all] matters concerning easements
established for public or communal use shall be governed by the special
laws and regulations relating thereto, and, in the absence thereof, by the
provisions of this Title [Title VII on Easements or Servitudes].”

In the case at bar, the applicability of DENR A.O. No. 99-21 dated June
11, 1999, which superseded DENR A.O. No. 97-0519 dated March 6,
1997 and prescribed the revised guidelines in the implementation of the
pertinent provisions of Republic Act (R.A.) No. 1273 and Presidential
Decree (P.D.) Nos. 705 and 1067, cannot be doubted. Inter alia, it was
issued to further the government’s program of biodiversity preservation.
Certainly, in the case of residential subdivisions, the allocation of the 3-
meter strip along the banks of a stream, like the Mahabang Ilog Creek in
this case, is required and shall be considered as forming part of the open
space requirement pursuant to P.D. 1216 dated October 14, 1977.20
Said law is explicit: open spaces are “for public use and are, therefore,
beyond the commerce of men” and that “[the] areas reserved for parks,
playgrounds and recreational use shall be non-alienable public lands,
and non-buildable.”

Thus, the above proves that petitioner’s right of ownership and

possession has been limited by law with respect to the 3-meter
strip/zone along the banks of Mahabang Ilog Creek. Despite this, the
Court cannot agree with the trial court’s opinion, as to which the CA did
not pass upon, that respondents have a better right to possess the
subject portion of the land because they are occupying an area reserved
for public easement purposes. Similar to petitioner, respondents have no
right or title over it precisely because it is public land.

Likewise, we repeatedly held that squatters have no possessory rights

over the land intruded upon. The length of time that they may have
physically occupied the land is immaterial; they are deemed to have
entered the same in bad faith, such that the nature of their possession is
presumed to have retained the same character throughout their
occupancy.

As to the issue of who is the proper party entitled to institute a case with
respect to the 3-meter strip/zone, We find and so hold that both the
Republic of the Philippines, through the OSG and the local government
of Las Piñas City, may file an action depending on the purpose sought to
be achieved. The former shall be responsible in case of action for
reversion under Commonwealth Act 141, while the latter may also bring
an action to enforce the relevant provisions of Republic Act No. 7279
(otherwise known as the Urban Development and Housing Act of
1992).24 Under R.A. 7279, which was enacted to uplift the living
conditions in the poorer sections of the communities in urban areas and
was envisioned to be the antidote to the pernicious problem of squatting
in the metropolis, all local government units (LGUs) are mandated to
evict and demolish persons or entities occupying danger areas such as
esteros, railroad tracks, garbage dumps, riverbanks, shorelines,
waterways, and other public places such as sidewalks, roads, parks, and
playgrounds. Moreover, under pain of administrative and criminal liability
in case of non compliance.

Yet all is not lost for petitioner. It may properly file an action for
mandamus to compel the local government of Las Piñas City to enforce
with reasonable dispatch the eviction, demolition, and relocation of
respondents and any other persons similarly situated in order to give
flesh to one of the avowed policies of R.A. 7279, which is to reduce
urban dysfunctions, particularly those that adversely affect public health,
safety, and ecology. Indeed, as one of the basic human needs, housing
is a matter of state concern as it directly and significantly affects the
general welfare.

WHEREFORE, the petition is DENIED. The March 5, 2010 Decision and

October 29, 2010 Resolution of the Court of Appeals in CA-G.R. CV No.
90254, which affirmed the May 30, 2007 Decision of the Las Piñas RTC,
Branch 197, dismissing petitioner’s complaint, is hereby AFFIRMED.

SO ORDERED.

Case No. 2.

Privatization and Management office vs. Legazpi Towers 300, Inc.

GR. No. 147957 (J. Ynares-Santiago) July 22, 2009
a. Doctrine: 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.

b. Case Title: Privatization and Management office vs. Legazpi Towers

300, Inc. GR. No. 147957, (J.Peralta) (July 22, 2009)

c. Facts: Caruff Development Corporation owned several parcels of land

along the stretch of Roxas Boulevard, Manila. Among them were
contiguous lots covered by Transfer Certificate of Title (TCT) Nos.
120311, 120312, 120313, and 127649.

Sometime in December 1975, Caruff obtained a loan from the Philippine

National Bank (PNB) to finance the construction of a 21-storey
condominium along Roxas Boulevard.The loan accommodation was
secured by a real estate mortgage over three (3) parcels of land covered
by TCT Nos. 120311, 120312, and 120313, 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 appurtenances of the
building constructed by Caruff, it built a powerhouse (generating set) and
two sump pumps in the adjacent lot covered by TCT No. 127649 (now
TCT No. 200760).

After the completion of the condominium project, it was constituted

pursuant to the Condominium Act (Republic Act No. 4726), as the
Legaspi Towers 300, Inc. However, for Caruff's failure to pay its loan with
PNB, the latter foreclosed the mortgage and acquired some of the
properties of Caruff at the sheriff's auction sale.

Thereafter, Proclamation No. 50 was issued. It was aimed to promote

privatization "for the prompt disposition of the large number of non-
performing assets of the government financial institutions, and certain
government-owned and controlled corporations, which have been found
unnecessary or inappropriate for the government sector to maintain." It
also provided for the creation of the Asset Privatization Trust (APT).By
virtue of Administrative Order No. 14 and the Deed of Transfer executed
by PNB, the National Government, thru the APT, became the assignee
and transferee of all its rights and titles to and interests in its receivables
with Caruff, including the properties it acquired from the foreclosure of
Caruff's mortgage.

Meanwhile, Caruff filed a case against PNB before the RTC of Manila,
Branch 2, whereby Caruff sought the nullification of PNB's foreclosure of
its properties. A Compromise Agreement dated August 31, 1988 was
later entered into by Caruff, PNB, and the National Government thru
APT. The parties agreed, among other things, that Caruff would transfer
and convey in favor of the National Government, thru the APT, the lot
covered by TCT No. 127649 (now TCT No. 200760), where it built the
generating set and sump pumps.

d. Issue: Whether or not the construction of a generator set and 2 sump

pumps constitutes an easement of the property.
e. Held: 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.

An easement or servitude is "a real right constituted on another’s

property, corporeal and immovable, by virtue of which the owner of the
same has to abstain from doing or to allow somebody else to do
something on his property for the benefit of another thing or person."
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.
WHEREFORE, premises considered, the Decision of the Regional Trial
Court in Spec. Proc. No. 89-49563 dated January 12, 1995, and the
Decision and Resolution of the Court of Appeals in CA-G.R. CV No.
48984 dated February 16, 2001 and May 3, 2001, respectively, are
REVERSED and SET ASIDE.

Legaspi Towers 300, Inc. is DIRECTED to REMOVE the generating set

and sump pumps 1 and 2 from the property covered by TCT No. 200760
and to PAY reasonable rent at the rate of P56.25 per square meter/per
month from August 28, 1989 until the same are completely removed.

Case No. 3.

Unisource Commercial and Devt Corp. vs. Joseph Chung,

GR. No. 173252 (J. Quisumbing) July 17, 2009

a. Doctrine: A voluntary easement of right of way, like any other contract,

could be extinguished only by mutual agreement or by renunciation of
the owner of the dominant estate.

b. Case Title: Unisource Commercial and Dev. Corp. vs. Joseph Chung,
G.R. No. 173252, (J. Quisumbing) July 17, 2009

c. Facts: Petitioner Unisource Commercial and Development

Corporation is the registered owner of a parcel of land. The title contains
a memorandum of encumbrance of a voluntary easement which has
been carried over from the OCT of Encarnacion S. Sandico. As
Sandico’s property was transferred to several owners, the
memorandum of encumbrance of a voluntary easement in favor of
Francisco M. Hidalgo was consistently annotated at the back of every
title covering Sandicos property until TCT was issued in petitioner’s
favor. On the other hand, Hidalgo’s property was eventually transferred
to respondents Joseph Chung, Kiat Chung and Cleto Chung. On May
26, 2000, petitioner filed a Petition to Cancel the Encumbrance of
Voluntary Easement of Right of Way on the ground that the dominant
estate has an adequate access to a public road which is Matienza
Street. The RTC ordered the cancellation of the encumbrance of
voluntary easement of right of way in favor of the dominant estate owned
by respondents. The CA reversed and set aside the decision of the trial
court and cited Article 631 (3) of the Civil Code. Hence, this petition.

d. Issue: Whether the easement is binding on the heirs or assigns of

Sandico even if was not on the annotation.

e. Held: The Supreme Court, speaking through Justice Quisumbing,

that the easement is binding on the heirs or assigned of Sandico. It is
settled that the registration of the dominant estate under the
Torrens system without the annotation of the voluntary
easement in its favor does not extinguish the easement. On
the contrary, it is the registration of the servient estate as free, that is,
without the annotation of the voluntary easement, which extinguishes the
easement.

The opening of an adequate outlet to a highway can extinguish only

legal or compulsory easements, not voluntary easements like in the case
at bar. The fact that an easement by grant may have also qualified as an
easement of necessity does not detract from its permanency as a
property right, which survives the termination of the necessity. A
voluntary easement of right of way, like any other contract, could be
extinguished only by mutual agreement or by renunciation of the owner
of the dominant estate.

Finally, the mere fact that respondents subdivided the property does not
extinguish the easement. Article. 618 of the Civil Code provides that if
the dominant estate is divided between two or more persons, each of
them may use the easement in its entirety, without changing the place of
its use, or making it more burdensome in any other way.

WHEREFORE, the instant petition is DENIED. The Decision dated

October 27, 2005, and the Resolution dated June 19, 2006, of the Court
of Appeals in CA-G.R. CV No. 76213 are AFFIRMED.

Case No. 4

Spouses Manuel Salimbangon vs. Spouses Santos Tan,

GR. No. 185240 (J. Abad) January 21, 2010

a. Doctrine:The existence of a dominant estate and a servient estate is

incompatible with the idea that both estates belong to the same person.

b. Case Title: Sps. Manuel Salimbangon vs. Sps. Santos Tan; GR No.
185240 (J. Abad) (January 21,2010)

c. Facts: Guillermo Ceniza died intestate on July 11, 1951, leaving a

parcel of land at Poblacion, Mandaue City. Twenty years later on July 17,
1973 his children Benedicta, Guillermo, Jr., Victoria, Eduardo, and
Carlos executed an extrajudicial declaration of heirs and partition,
adjudicating and dividing the land among themselves as follows:
1. To Benedicta T. Cabahug, Lot A subject to a perpetual and
gratuitous 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 gratuitous
road right of way 1.50 m. wide along its SW. boundary in favor of
Lot D of the subdivision.

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 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 B and on to the street. The partition
that embodied this easement of right of way was annotated on the
individual titles issued to the heirs.

d. Issue : Whether or not the CA erred in ruling that the easement of

right of way established by the partition agreement among the heirs for
the benefit of Lot A has been extinguished.
e. Held : No. 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.

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.
Case No. 5

Teofilo Alolino vs. Fortunato Flores,

GR. No. 198774, April 4, 2016

a. Doctrine: As a barrio road, the subject lot's purpose is to serve the

benefit of the collective citizenry. It is outside the commerce of man and
as a consequence: (1) it is not alienable or disposable;(2) it is not subject
to registration under Presidential Decree No. 1529 and cannot be the
subject of a Torrens title; (3) it is not susceptible to prescription; (4) it
cannot be leased, sold, or otherwise be the object of a contract; (5) it is
not subject to attachment and execution; and (6) it cannot be burdened
by any voluntary easements.

An easement is an encumbrance imposed upon an immovable for the

benefit of another immovable belonging to a different owner or for the
benefit of a community, or of one or more persons to whom the
encumbered estate does not belong. Continuous and apparent
easements may be acquired by virtue of a title or by prescription of ten
years. Meanwhile, continuous but non-apparent easements and
discontinuous ones can only be acquired by virtue of a title. Used in
this sense, title refers to a juridical justification for the acquisition of a
right. It may refer to a law, a will, a donation, or a contract.

We must distinguish between the respondents' house and the land it is

built on. The land itself is public property devoted to public use. It is not
susceptible to prescription and cannot be burdened with voluntary
easements. On the other hand, the respondents' house is private
property, albeit illegally constructed on public property. It can be
the object of prescription and can be burdened with voluntary
easements. Nevertheless, it is indisputable that the respondents have
not voluntarily burdened their property with an easement in favor of
Alolino.

An easement of a right of way is discontinuous and cannot be acquired

through prescription. On the other hand, an easement of light and view
can be acquired through prescription counting from the time when the
owner of the dominant estate formally prohibits the adjoining lot owner
from blocking the view of a window located within the dominant estate.

b. Case Title: Teofilo Alolino vs. Sps Fortunato Flores and Anastacia
Marie Flores, GR. No. 198774; (J. Brion) (April 4, 2016)

c. Facts: Alolino is the registered owner of two (2) contiguous parcels

of land situated at Barangay Tuktukan, Taguig, covered by (TCT) Nos.
784 and 976. TCT No. 784 was issued on August 30, 1976 covering an
area of 26 square meters; while TCT No. 976 was issued on August 29,
1977, with an area of 95 square meters.

Alolino initially constructed a bungalow-type house on the property. In

1980, he added a second floor to the structure. He also extended his
two-storey house up to the edge of his property. There are terraces on
both floors. There are also six (6) windows on the perimeter wall: three
(3) on the ground floor and another three (3) on the second floor.

In 1994, the respondent spouses Fortunato and Anastacia (Marie) Flores

constructed their house/sari sari store on the vacant
municipal/barrio road immediately adjoining the rear perimeter wall of
Alolino's house. Since they were constructing on a municipal road, the
respondents could not secure a building permit. The structure is only
about two (2) to three (3) inches away from the back of Alolino's house,
covering five windows and the exit door.

The respondents' construction deprived Alolino of the light and

ventilation he had previously enjoyed and prevented his ingress and
egress to the municipal road through the rear door of his house.

Alolino demanded that the respondent spouses remove their structure

but the latter refused. Thus, he complained about the illegal construction
to the Building Official of the Municipality of Taguig. He also filed a
complaint with the Barangay of Tuktukan.

Acting on Alolino's complaint, the Building Official issued a Notice of

Illegal Construction against the respondents on February 15, 1995,
directing them to immediately stop further construction.

Sometime in 2001 or 2002, the respondents began constructing a

second floor to their structure, again without securing a building permit.
This floor was to serve as residence for their daughter, Maria Teresa
Sison. The construction prompted Alolino to file another complaint with
the Building Official of Taguig.

The building official issued a second Notice of Illegal Construction

against the respondents directing the respondents to desist from their
illegal construction.

The respondents did not comply with the directive from the building
official. This prompted Alolino to send them a letter demanding the
removal of their illegally constructed structure.

Despite receipt of the demand letter, the respondents refused to comply.

Thus, Alolino filed a complaint against the respondents with the RTC
praying for: (1) the removal of the encroaching structure; (2) the
enforcement of his right to easement of light and view; and (3) the
payment of damages. Alolino claimed that the respondents' encroaching
structure deprived him of his light and view and obstructed the air
ventilation inside his house.

In their answer, the respondent spouses denied that Alolino had a

cause of action against them. They alleged that they had occupied
their lot where they constructed their house in 1955, long before
the plaintiff purchased his lot in the 70s. They further alleged that
plaintiff only has himself to blame because he constructed his house up
to the very boundary of his lot without observing the required setback.
Finally, they emphasized that the wall of their house facing Alolino's
does not violate the latter's alleged easement of light and view because
it has no window.

The respondents also admitted to them that they did not secure a
building permit because the property was constructed on a
municipal/barrio road. They claimed, however, that on March 1, 2004,
the Sangguniang Bayan of Taguig (the Sanggunian) reclassified the
property as a residential lot from its prior classification as
a barrio/municipal road.

During the trial, both parties moved for an ocular inspection of the
premises. Consequently, the RTC ordered the branch clerk of court, the
deputy sheriff, and the stenographer to conduct the inspection.

In their report, the inspection team confirmed that the respondents'

property blocked the entry of light and air to Alolino's house.

RTC ordered the respondents to remove their illegal structure

obstructing Alolino's right to light and view.

The RTC found that Alolino had already previously acquired an

easement of light and view and that the respondents subsequently
blocked this easement with their construction. It held that the
respondents' illegal construction was a private nuisance with respect to
Alolino because it prevented him from using the back portion of his
property and obstructed his free passage to the barrio/municipal road.
The court further held that the respondents' house was a public
nuisance, having been illegally constructed on a barrio road - a
government property - without a building permit.

CA reversed the RTC decision and dismissed the complaint for lack of
merit.The CA held (1) that Alolino had not acquired an easement of light
and view because he never gave a formal prohibition against the
respondents pursuant to Article 668 of the Civil Code; (3) that Alolino had
not acquired an easement of right of way to the barrio Road; and (4) that
the respondents' house was not a public nuisance because it did not
endanger the safety of its immediate surroundings.

CA concluded that the Government had already abandoned

the barrio road pursuant to the 2004 Sanggunian resolution. CA
maintained that Alolino had not acquired an easement of light and view.

Alolino insists (1) that he acquired an easement of light and view by

virtue of a title because the respondents constructed their house on
a barrio road; (2) that the provision of Sec. 708 of the National Building
Code and Article 670 of the Civil Code prescribing the setbacks is
inapplicable because the property is adjacent to a barrio road; (3) that
he has a right of way over the lot occupied by the respondents because
it is a barrio road; and (4) that the respondents' house/sari sari store is a
nuisance per se.

In its comment, the respondent counters (1) that Alolino has not
acquired an easement of light and view or an easement of right of way,
by either prescription or title; (2) that Alolino is at fault for constructing
his house up to the edge of his property line without observing the
setbacks required in Article 670 of the Civil Code and Section 702 of the
National Building Code; and (3) that their house/sari sari store is not a
nuisance because it is not a serious threat to public safety and the
Sanggunian has already reclassified the lot as residential.

d. Issues: Whether or not Alolino have an easement of light and view or

an easement of right of way over the respondents/Sps FLores' property
or the barrio road it stands on; Whether respondents/Sps FLores' are
entitled to continue occupying the barrio road and blocking the rear of
Alolino's house.

e. Held: We agree with the respondents that Alolino does not have an
easement of light and view or an easement of right of way over the
respondents' property or the barrio road it stands on. This does not
mean, however, that the respondents are entitled to continue occupying
the barrio road and blocking the rear of Alolino's house. Every building
is subject to the easement which prohibits the proprietor or
possessor from committing nuisance.

There is no dispute that respondents built their house/sari sari store on

government property. Properties of LGUs are classified as either
property for public use or patrimonial property. Article 424 of the Civil
Code distinguishes between the two classifications:
Article 424. Property for public use, in the provinces, cities, and
municipalities, consist of the provincial roads, city streets, municipal
streets, the squares, fountains, public waters, promenades, and public
works for public service paid for by said provinces, cities, or
municipalities.

All other property possessed by any of them is patrimonial and shall be

governed by this Code, without prejudice to the provisions of special
laws.

From the foregoing, the barrio road adjacent to Alolino's house is

property of public dominion devoted to public use.

We find no merit in the respondents' contention that the Local

Government of Taguig had already withdrawn the subject barrio road
from public use and reclassified it as a residential lot. The Local
Government Code (LGC) authorizes an LGU to withdraw a local road
from public use under the folio wing conditions:
Section 21. Closure and Opening of Roads. -
(a) A local government unit may, pursuant to an ordinance,
permanently or temporarily close or open any local road, alley,
park, or square falling within its jurisdiction; Provided, however,
That in case of permanent closure, such ordinance must be
approved by at least two-thirds (2/3) of all the members of the
Sanggunian, and when necessary, an adequate substitute for the
public facility that is subject to closure is provided.

(b) No such way or place or any part thereof shall be permanently

closed without making provisions for the maintenance of public
safety therein. A property thus permanently withdrawn from
public use may be used or conveyed for any purpose for which
other real property belonging to the local government unit
concerned may be lawfully used or conveyed. x x x

To convert a barrio road into patrimonial property, the law requires the
LGU to enact an ordinance, approved by at least two-thirds (2/3) of the
Sanggunian members, permanently closing the road.

In this case, the Sanggunian did not enact an ordinance but merely
passed a resolution. The difference between an ordinance and a
resolution is settled in jurisprudence: an ordinance is a law but a
resolution is only a declaration of sentiment or opinion of the legislative
body.

Properties of the local government that are devoted to public service are
deemed public and are under the absolute control of Congress. Hence,
LGUs cannot control or regulate the use of these properties unless
specifically authorized by Congress, as is the case with Section 21 of the
LGC. In exercising this authority, the LGU must comply with the
conditions and observe the limitations prescribed by Congress. The
Sanggunian's failure to comply with Section 21 renders ineffective its
reclassification of the barrio road.

As a barrio road, the subject lot's purpose is to serve the benefit of the
collective citizenry. It is outside the commerce of man and as a
consequence: (1) it is not alienable or disposable;(2) it is not subject to
registration under Presidential Decree No. 1529 and cannot be the
subject of a Torrens title; (3) it is not susceptible to prescription; (4) it
cannot be leased, sold, or otherwise be the object of a contract; (5) it is
not subject to attachment and execution; and (6) it cannot be burdened
by any voluntary easements.

An easement is an encumbrance imposed upon an immovable for the

benefit of another immovable belonging to a different owner or for the
benefit of a community, or of one or more persons to whom the
encumbered estate does not belong. Continuous and apparent
easements may be acquired by virtue of a title or by prescription of ten
years. Meanwhile, continuous but non-apparent easements and
discontinuous ones can only be acquired by virtue of a title. Used in
this sense, title refers to a juridical justification for the acquisition of a
right. It may refer to a law, a will, a donation, or a contract.

We must distinguish between the respondents' house and the land it is

built on. The land itself is public property devoted to public use. It is not
susceptible to prescription and cannot be burdened with voluntary
easements. On the other hand, the respondents' house is private
property, albeit illegally constructed on public property. It can be
the object of prescription and can be burdened with voluntary
easements. Nevertheless, it is indisputable that the respondents have
not voluntarily burdened their property with an easement in favor of
Alolino.

An easement of a right of way is discontinuous and cannot be acquired

through prescription. On the other hand, an easement of light and view
can be acquired through prescription counting from the time when the
owner of the dominant estate formally prohibits the adjoining lot owner
from blocking the view of a window located within the dominant estate.

Notably, Alolino had not made (and could not have made) a formal
prohibition upon the respondents prior to their construction in 1994;
Alolino could not have acquired an easement of light and view through
prescription. Thus, only easements created by law can burden the
respondents' property.

The provisions on legal easements are found in Book II, Title VII,
Chapter 2 of the Civil Code whose specific coverage we list and recite
below for clarity and convenience.

Section 3 (Articles 649-657) governs legal easements of right of

way. Article 649 creates a legal easement in favor of an owner or any
person entitled to use any immovable, which is landlocked by other
immovables pertaining to other persons without an adequate access to a
public highway. Article 652 creates a legal easement in favor of an
isolated piece of land acquired by sale, exchange, partition, or donation
when it is surrounded by other estates of the vendor, exchanger, co-
owner, or donor. Article 653 grants the same right of way. in favor of the
vendor, exchanger, co-owner, or donor when his property is the one that
becomes isolated. Article 656 grants the owner of an estate, after
payment of indemnity, a right of way to carry materials through the
estate of another when it.is indispensable for the construction or repair of
a building in his estate. Finally, Article 657 governs right of way
easements for the passage of livestock.

None of these provisions are applicable to Alolino's property with respect

to the barrio road where the respondents' house stands on.

On the other hand, Section 5 of Book II, Title VII, Chapter 2 of the Civil
Code (Articles 667-673) governs legal easements of light and view.
These seven provisions are:

SECTION 5

Easement of Light and View

Article 667. No part-owner may, without the consent of the others,

open through the party wall any window or aperture of any kind.

Article 668. The period of prescription for the acquisition of an easement

of light and view shall be counted: (1) From the time of the opening of
the window, if it is through a party wall; or (2) From the time of the formal
prohibition ipon the proprietor of the adjoining land or tenement, if the
window is through a wall on the dominant estate.
Article 669. When the distances in article 670 are not observed, the
owner of a wall which is not party wall, adjoining a tenement or piece of
land belonging to another, c^n make in it openings to admit light at the
height of the ceiling joints or immediately under the ceiling, and of the
size of thirty centimeters square, and, in every case, with an iron grating
imbedded in|the wall and with a wire screen.

Nevertheless, the owner of the tenement or property adjoining the wall in

which the openings are made can close them should he acquire part-
ownership thereof, if there be no stipulation to the contrary.

He can also obstruct them by constructing a building on his land or by

raising a wall thereon contiguous to that having such openings, unless
an easement of light has been acquired.

Article 670. No windows, apertures, balconies, or other similar

projections which afford a direct view upon or towards an adjoining land
or tenement can be made, without leaving a distance of two meters
between the wall in which they are made and such contiguous property.

Neither can side or oblique views upon or towards such conterminous

property be had, unless there be a distance of sixty centimeters.

The nonobservance of these distances does not give rise to

prescription.

Article 671. The distance referred to in the preceding article shall be

measured in cases of direct views from the outer line of the wall when
the openings do not project, from the outer line of the latter when they
do, and, in cases of oblique view, from the dividing line between the two
properties.

Article 672. The provisions of article 670 are not applicable to buildings
separated by a public way or alley, which is not less than three meters
wide, subject to special regulations and local ordinances.

Article 673. Whenever by any title a right has been acquired to have
direct views, balconies or belvederes overlooking an adjoining property,
the owner of the servient estate cannot build thereon at less than a
distance of three meters to be measured in the manner provided in
article 671. Any stipulation permitting distances less than those
prescribed in article 670 is void.

However, none of these provisions actually create a legal easement of

light and view which can only be acquired through prescription or a by
virtue of a voluntary title.

From the foregoing, we agree with the respondents that Alolino does not
have an easement of light and view or an easement of right of way over
the respondents' property or the barrio road it stands on. This does not
mean, however, that the respondents are entitled to continue occupying
the barrio road and blocking the rear of Alolino's house. Every building
is subject to the easement which prohibits the proprietor or
possessor from committing nuisance. Under Article 694 of the Civil
Code, the respondents' house is evidently a nuisance:
Art. 694. A nuisance is any act, omission, establishment, business,
condition of property, or anything else which:

(1) Injures or endangers the health or safety of others; or

(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public
highway or street, or any body of water; or
(5) Hinders or impairs the use of property,

A barrio road is designated for the use of the general public who are
entitled to free and unobstructed passage thereon. Permanent
obstructions on these roads, such as the respondents' illegally
constructed house, are injurious to public welfare and convenience. The
occupation and use of private individuals of public places devoted to
public use constitute public and private nuisances and nuisance per se.

The CA clearly erred when it invoked Section 28 of the Urban

Development and Housing Act as a ground to.deny the demolition of
respondents' illegal structure. The invoked provision reads:

Sec. 28. Eviction and Demolition. - Eviction or demolition as a practice

shall be discouraged. Eviction or demolition, however, may be allowed
under the following situations:
(a) When persons or entities occupy danger -areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways,
and other public places such as sidewalks, roads, parks, and
playgrounds;
 xxxx

(c) When there is a court order for eviction and demolition. x x x

(emphasis supplied)

The invoked provision itself allows the demolition of illegal structures on

public roads and sidewalks because these nuisances are injurious to
public welfare. Evidently, the respondents have no right to maintain
their occupation and permanent obstruction of the barrio road. The
interests of the few do not outweigh the greater interest of public
health, public safety, good order, and general welfare.

WHEREFORE, the petition is GRANTED. The decision of the Court of

Appeals in CA-G.R. CV No. 94524 is REVERSED and SET ASIDE and
the decision of the Regional Trial Court, Pasig City, Branch 153 in Civil
Case No. 69320 is REINSTATED.

The respondents, and all persons claiming rights under them,

are ORDERED to remove and demolish their illegal structure. The
respondents are also ORDERED to pay the petitioner the sum of One
Hundred Thousand Pesos (P100,000.00) as attorney's fees. Costs
against the respondents.

SO ORDERED.

Case No. 6

Bicol Agro-Industrial Producers Cooperative, Inc. vs.

 Edmundo Obias: GR. No. 172077 (J. Carpio) October 9, 2009

a. Doctrine: Easement or servitude is an encumbrance imposed upon

an immovable for the benefit of another immovable belonging to a
different owner. By its creation, easement is established either by law (in
which case it is a legal easement) or by will of the parties (a voluntary
easement). In terms of use, easement may either be continuous or
discontinuous. The easement of right of way – the privilege of
persons or a particular class of persons to pass over another’s
land, usually through one particular path or linen – is characterized
as a discontinuous easement because its use is in intervals and
depends on the act of man. Because of this character, an easement
of a right of way may only be acquired by virtue of a title.

On laches: There is no absolute rule on what constitutes laches. It is a

rule of equity and applied not to penalize neglect or sleeping on one’s
rights, but rather to avoid recognizing a right when to do so would result
in a clearly unfair situation. The question of laches is addressed to the
sound discretion of the court and each case must be decided according
to its particular circumstances. It is the better rule that courts, under the
principle of equity, should not be guided or bound strictly by the statute
of limitations or the doctrine of laches if wrong or injustice will result.

b. Case Title: Bicol Agro-Industrial Producers Cooperative, Inc vs.

Edmundo Obias et. Al; G.R. No. 172077 (J. Carpio) October 9, 2009

c. Facts: The Bicol Sugar Development Corporation (BISUDECO) was

established at Himaao, Pili, Camarines Sur. In the same year,
BISUDECO constructed the disputed road measuring approximately 7
meters wide and 2.9 kilometers long. The disputed road was used by
BISUDECO in hauling and transporting sugarcane to and from its mill
site (Pensumil) and has thus become indispensable to its sugar milling
operations.

Respondents unjustifiably barricaded the disputed road by placing

bamboos, woods, placards and stones across it, preventing petitioner's
and the other sugar planter's vehicles from passing through the disputed
road, thereby causing serious damage and prejudice to petitioner.

Petitioner alleged that BISUDECO constructed the disputed road

pursuant to an agreement with the owners of the ricefields. The
agreement provides that BISUDECO shall employ the children and
relatives of the landowners in exchange for the construction of the road
on their properties. Petitioner contends that through prolonged and
continuous use of it when the disputed road, BISUDECO acquired a
right of way over the properties of the landowners, which right of way, in
turn, was acquired by it when it bought BISUDECO's assets. Petitioner
prayed that respondents be permanently ordered to restrain from
barricading the disputed road and from obstructing its free passage.

Respondents denied having entered into an agreement with BISUDECO

regarding the construction and the use of the disputed road. They
alleged that BISUDECO, surreptitiously and without their knowledge and
consent, constructed the disputed road on their properties and has since
then intermittently and discontinuously used the disputed road for
hauling sugarcane despite their repeated protests. Respondents claimed
they tolerated BISUDECO in the construction and the use of the road
since BISUDECO was a government-owned and controlled corporation,
and the entire country was then under Martial Law. Respondents
likewise denied that the road has become a public road, since no public
funds were used for its construction and maintenance.

The RTC ruled that petitioner failed to present any concrete evidence to
prove that there was an agreement between BISUDECO and
respondents for the construction of the disputed road. Moreover, it held
that petitioner did not acquire the same by prescription.

The Court of Appeals affirmed the finding of the RTC that there was no
conclusive proof to sufficiently establish the existence of an agreement
between BISUDECO and respondents regarding the construction of the
disputed road. Moreover, the Court of Appeals also declared that an
easement of right of way is discontinuous and as such, cannot be
acquired by prescription.

d. Issue/s: Whether or not BISUDECO is correct in its claim that

easement is continuous and that they have acquired it by prescription.

Whether or not the principles of prescription by laches and estoppel is

applicable in this case.

e. Held: Art. 622. Continuous non-apparent easements, and

discontinuous ones, whether apparent or not, may be acquired only by
virtue of a title.

Based on the foregoing, in order for petitioner to acquire the disputed

road as an easement of right-of-way, it was incumbent upon petitioner to
show its right by title or by an agreement with the owners of the lands
that said road traversed.

While conceding that they have no direct evidence of the alleged

agreement, petitioner posits that they presented circumstantial evidence
which, if taken collectively, would prove its existence. Specifically,
petitioner cites the following circumstances, to wit:

a. The agreement was of public knowledge. Allegedly BISUDECO and

respondents entered into an agreement for the construction of the road
provided that the latter, their children or relatives were employed with
BISUDECO.

b. The road was continuously used by BISUDECO and the public in

general.

c. There was no protest or complaint from respondents for almost a

period of two decades.

d. The portions of the land formerly belonging to respondents affected by

the road were already segregated and surveyed from the main lots.

e. The road in dispute is already a barangay road.

Crucial to the petitioner’s cause was its burden of proving the existence
of the alleged agreement between BISUDECO and respondents for the
construction of the road. In this regard, the RTC found that petitioner
failed to prove its existence, to wit:

For its part, the CA also ruled that petitioner failed to prove the existence
of the said agreement, to wit:

Like the lower court, we found no conclusive proof to sufficiently

establish the existence of an agreement between BISUDECO and the
defendants- appellants regarding the construction and the use of the
disputed road. The lower court correctly disbelieved the plaintiffs-
appellants contention that an agreement existed because there was
simply no direct evidence to support this allegation.
Based on the foregoing, the inability of petitioner to prove the existence
of an agreement militates its allegations in herein petition. On this score,
both the RTC and the CA are one in ruling that petitioner had failed to
prove the existence of the agreement between BISUDECO and the
respondents for the construction of the road. Also, well-established is the
rule that "factual findings of the Court of Appeals are conclusive on the
parties and carry even more weight when the said court affirms the
factual findings of the trial court." Hence, this Court finds no reason to
reverse such findings.

On Acquisition by Prescription

Continuous and apparent easements are acquired either by virtue of a

title or by prescription of ten years.

If a road for the use of vehicles or the passage of persons is

permanently cemented or asphalted, then the right of way over it
becomes continuous in nature. The reasoning is erroneous.

Under civil law and its jurisprudence, easements are either continuous or
discontinuous according to the manner they are exercised, not according
to the presence of apparent signs or physical indications of the existence
of such easements. Thus, easement is continuous if its use is, or may
be, incessant without the intervention of any act of man, like the
easement of drainage; and it is discontinuous if it is used at intervals and
depends on the act of man, like the easement of right of way.

The easement of right of way is considered discontinuous because it is

exercised only if a person passes or sets foot on somebody else’s land.
Like a road for the passage of vehicles or persons, an easement of right
of way of railroad tracks is discontinuous because the right is exercised
only if and when a train operated by a person passes over another's
property. In other words, the very exercise of the servitude depends
upon the act or intervention of man which is the very essence of
discontinuous easements.

It is not the presence of apparent signs or physical indications showing

the existence of an easement, but rather the manner of exercise thereof,
that categorizes such easement into continuous or discontinuous. The
presence of physical or visual signs only classifies an easement into
apparent or non- apparent. Thus, a road (which reveals a right of way)
and a window (which

evidences a right to light and view) are apparent easements, while an

easement of not building beyond a certain height is non-apparent.

Under Article 622 of the Civil Code, discontinuous easements, whether

apparent or not, may be acquired only by title. Here, the conclusion is
inevitable that the road in dispute is a discontinuous easement
notwithstanding that the same may be apparent. To reiterate, easements
are either continuous or discontinuous according to the manner they are
exercised, not according to the presence of apparent signs or physical
indications of the existence of such easements. Hence, even if the road
in dispute has been improved and maintained over a number of years, it
will not change its discontinuous nature but simply make the same
apparent. To stress, Article 622 of the New Civil Code states that
discontinuous easements, whether apparent or not, may be acquired
only by virtue of a title.

On Laches and Estoppel

Petitioner argues that estoppel and laches bar respondents from
exercising ownership rights over the properties traversed by the road in
dispute. In support of said argument, petitioner posits that BISUDECO
had been peacefully and continuously using the road without any
complaint or opposition on the part of the respondents for almost twenty
years. Respondents, on the other hand, claim that they merely tolerated
the use of their land as BISUDECO was a government-owned and
controlled corporation and considering that the disputed road was
constructed during the time of Martial Law.

There is no absolute rule on what constitutes laches. It is a rule of equity

and applied not to penalize neglect or sleeping on one’s rights, but
rather to avoid recognizing a right when to do so would result in a clearly
unfair situation. The question of laches is addressed to the sound
discretion of the court and each case must be decided according to its
particular circumstances. It is the better rule that courts, under the
principle of equity, should not be guided or bound strictly by the statute
of limitations or the doctrine of laches if wrong or injustice will result.

In herein petition, the CA denied petitioner’s argument in the wise:

As previously explained in our Decision, the applicable law is Article 622

of the Civil Code of the Philippines, which provides:

Art. 622. Continuous non-apparent easements, and discontinuous ones,

whether apparent or not, may be acquired only by virtue of a title.

The eminent jurist, former Senator Arturo M. Tolentino, opines that this
provision seeks to prevent the imposition of a burden on a tenement
based purely on the generosity, tolerance and spirit of neighborliness of
the owners thereof.
We applied the cited provision to the case in ruling that no easement of
right of way was acquired; based on the evidence presented, the
plaintiff- appellant failed to satisfactorily prove the existence of an
agreement evidencing any right or title to use the disputed road. We
additionally rejected the plaintiff-appellant’s position that it had acquired
the easement of right of way through acquisitive prescription, as settled
jurisprudence states that an easement of right of way cannot be acquired
by prescription.

We hold the same view on the issue of acquisition of an easement of

right of way by laches. To our mind, settled jurisprudence on the
application of the principle of estoppel by laches militates against the
acquisition of an easement of right of way by laches.

Laches is a doctrine in equity and our courts are basically courts of law
and not courts of equity; equity, which has been aptly described as
"justice outside legality," should be applied only in the absence of, and
never against, statutory law; Aeguetas nunguam contravenit legis.
Based on this principle, we find that the positive mandate of Article 622
of the Civil Code – the statutory provision requiring title as basis for the
acquisition of an easement of a right of way – precludes the application
of the equitable principle of laches.

This Court agrees with the CA. The fact that the law is categorical that
discontinuous easements cannot be acquired by prescription militates
against petitioner’s claim of laches. To stress, discontinuous easements
can only be acquired by title. More importantly, whether or not the
elements of laches are present is a question involving a factual
determination by the trial court. Hence, the same being a question of
fact, it cannot be the proper subject of herein petition. On the other hand,
as to the issue of estoppel, this Court likewise agrees with the finding of
the CA that petitioner did not present any evidence that would show an
admission, representation or conduct by respondents that will give rise to
estoppel.

WHEREFORE, premises considered, the petition is DENIED. The

August 24, 2005 Decision and October 27, 2005 Resolution of the Court
of Appeals in CA-G.R. CV No. 59016 are hereby AFFIRMED.

SO ORDERED.

Case No. 7
Spouses Tedy Garcia vs. Loreta T. Santos,
GR. No. 228334, June 17, 2019

2. Rights and obligations of the owners of the dominant and servient

estates 3.Modes of extinguishment

Case No. 1

Spouses Bernabe Mercader, Jr. vs. Spouses Jesus Bardillas,

GR. No. 163157 (J. Bersamen) June 27, 2016
a. Doctrine: The owner of the servient estate retains ownership of the
portion on which the easement is established and may use the same in
such manner as not to affect the exercise of the easement.

b. Title: Spouses Bernabe Mercader, Jr. vs. Spouses Jesus Bardillas,

GR.No. 163157 (J. Bersamen) June 27, 2016

c. Facts: Clarita Village Association erected a concrete perimeter fence

to close the exit point of the right of way of the Spouses Bardilas to the
existing road within Clarita Village. Upon learning of the encroachment
on the portion of their property being used as right of way only, Sps.
Bardilas informed the Sps Mercader of their encroachment of their house
and fence on the right of way, Sps Bardilla asked them to either pay or
remove the same. Sps Mercader, through their counsel, insisting that as
the owners of the land, were equally entitled to the right of way. RTC
ruled that the Sps Mercader are indeed the owners of the land thus they
are entitled to the right of way. However, the CA ruled otherwise and in
favor of the Sps. Bardilas.

d. Issue: Whether or not the technical description of the property

contained the phrase "with existing Right of Way (3.00 meters wide),"
which signified that they were equally "entitled to the road-right-of-way
being conferred upon them by TITLE pursuant to Article 622 of the New
Civil Code.

e. Held: The Supreme Court held that an encumbrance "subject to 3

meters wide right of way" was annotated on TCT No. 107915, which
covers Lot No. 5808-F-2-B of the Spouses Bardilas. As the owners of the
servient estate, the Spouses Bardilas retained ownership of the road
right of way even assuming that said encumbrance was for the benefit of
Lot No. 5808-F-2-A of the Spouses Mercader. The latter could not claim
to own even a portion of the road right of way because Article 630 of the
Civil Code expressly provides that "the owner of the servient estate
retains ownership of the portion on which the easement is established,
and may use the same in such manner as not to affect the exercise of
the easement." The right to the road right of way is with the Sps
Bardilas.

WHEREFORE, the Court AFFIRMS the judgment promulgated on March

18, 2003 in C.A.-G.R. CV No. 53153 with respect to Civil Case No. CEB-
12783 subject to the MODIFICATION that the portion "ordering
petitioners to pay the respondents the sum of P20,000.00 as and for
attorney's fees" is DELETED; and ORDERS the petitioners to pay the
costs of suit.

SO ORDERED.

Case No. 2

Alicia B. Reyes vs. Spouses Valentin Ramos,

GR. No. 194488 (J. Leonen) February 11, 2015

a. DOCTRINE: 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.
b. Case Title: Alicia B. Reyes vs. Spouses Valentin Ramos, GR. No.
194488, (J. Leonen) (February 11, 2015)

c. Facts: On March 28, 2006, petitioner Alicia B. Reyes, through Dolores

B. Cinco, filed a Complaint before the Regional Trial Court of Malolos,
Bulacan, for easement of right of way against respondents, Spouses
Francisco S. Valentin and Anatalia Ramos.

In her Complaint, petitioner alleged that she was the registered owner of
a 450-square-meter parcel of land in Barangay Malibong Bata, Pandi,
Bulacan, designated as Lot No. 3-B-12 and covered by TCT No. T-
343642-(M). The property used to be a portion of Lot No. 3-B8 and was
surrounded by estates belonging to other persons. Petitioner also
alleged that respondents' 1,500-square-meter property surrounded her
property, and that it was the only adequate outlet from her property to
the highway. The easement sought was the vacant portion near the
boundary of respondents' other lot.

Petitioner insisted that her property was not isolated because of her own
acts. When her mother gave the property to her as part of her
inheritance, there was no intention for the property to have no outlet.
According to petitioner, her and respondents' lots were previously owned
by her mother. Respondents' lot was given to Dominador Ramos
(Dominador) who allegedly was respondents' predecessor-in-interest.
Only 500 square meters were given to Dominador. Part of the 1,500
square meters was intended as a right of way. Dominador was tasked to
prepare the documents. But, instead of limiting the conveyance to
himself to 500 square meters of the property, he conveyed the whole
1,500 square meters, including that which was supposed to be the
access to the barangay road. Dominador was also her brother, whom
she presumed would give her a right of way to the main road. Instead of
giving way, however, he closed the passage, causing petitioner's
property's isolation. Despite demands and willingness to pay the
amount, respondents refused to accede to petitioner's claims.

d. Issue: Whether or not petitioner is entitled to be granted easement

rights.

e. Held: No. One of the requirements for the grant of an easement of

right of way is that the isolation of the property is not due to the acts of
the dominant estate’s owners. As shown in the pleadings submitted to
the trial court, petitioner and respondents had conflicting claims on this
issue. Petitioner alleged that it was her uncle, Dominador, who caused
the isolation of her property through his act of appropriating for himself
the whole property entrusted to him by her mother. Moreover, he closed
the passage from petitioner’s property to the public road. On the other
hand, respondents alleged that the isolation was due to the acts of
petitioner’s predecessor-in-interest. She allegedly subdivided the
property in favor of her children, including petitioner, without regard to
the pending dispute over the property. If the latter is true, petitioner could
not claim any right to compulsory easement even if it was not she who
caused the property’s isolation. Petitioner is bound by her predecessor-
in-interest’s act of causing the isolation of her property. Assuming,
however, that petitioner or her mother did not cause the isolation of
petitioner’s property, petitioner still cannot be granted the easement of
right of way over the proposed portion of respondents’ property. This is
because she failed to satisfy the requirements for an easement of right
of way under the Civil Code.

This easement is not compulsory if the isolation of the immovable is due

to the proprietor’s own acts. Under 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. Petitioner
failed to establish that there was no adequate outlet to the public
highway and that the proposed easement was the least prejudicial to
respondents’ estate. There is an adequate exit to a public highway. As
explained in Dichoso, Jr. v. Marcos, mere convenience for the dominant
estate is not what is required by law as the basis of setting up a
compulsory easement. Even in the face of necessity, if it can be satisfied
without imposing the easement, the same should not be imposed. There
is, therefore, no need to utilize respondents’ property to serve
petitioner’s needs. Another adequate exit exists. Petitioner can use this
outlet to access the public roads.
WHEREFORE, the Court of Appeals Decision promulgated on August
12, 2010 and its Resolution promulgated on October 28, 2010 are
AFFIRMED.

SO ORDERED.

Case No. 3

Goldcrest Realty Corp. Vs. Cypress Gardens Condominium Corp.

GR. No. 171072 (J. Quisumbing) April 7, 2009
a. Doctrine: The owner of the dominant estate cannot violate any of the
following prescribed restrictions on its rights on the servient estate, to
wit: (1) it can only exercise rights necessary for the use of the easement;
(2) it cannot use the easement except for the benefit of the immovable
originally contemplated; (3) it cannot exercise the easement in any other
manner than that previously established; (4) it cannot construct anything
on it which is not necessary for the use and preservation of the
easement; (5) it cannot alter or make the easement more burdensome;
(6) it must notify the servient estate owner of its intention to make
necessary works on the servient estate; and (7) it should choose the
most convenient time and manner to build said works so as to cause the
least convenience to the owner of the servient estate. Any violation of
the above constitutes impairment of the easement.

b. Case Title: Goldcrest Realty Corp. Vs. Cypress Gardens

Condominium Corp.; GR. No. 171072 (J. Quisumbing) April 7, 2009

c. Facts: Petitioner Goldcrest Realty Corporation (Goldcrest) is the

developer of Cypress Gardens, a ten-storey building located at Herrera
Street, Legaspi Village, Makati City. On April 26, 1977, Goldcrest
executed a Master Deed and Declaration of Restrictions which
constituted Cypress Gardens into a condominium project and
incorporated respondent Cypress Gardens Condominium Corporation
(Cypress) to manage the condominium project and to hold title to all the
common areas. Title to the land on which the condominium stands was
transferred to Cypress under Transfer Certificate of Title No. S-67513.
But Goldcrest retained ownership of the two-level penthouse unit on the
ninth and tenth floors of the condominium registered under
Condominium Certificate of Title (CCT) No. S-1079 of the Register of
Deeds of Makati City. Goldcrest and its directors, officers, and assigns
likewise controlled the management and administration of the
Condominium until 1995.

Following the turnover of the administration and management of the

Condominium to the board of directors of Cypress in 1995, it was
discovered that certain common areas pertaining to Cypress were being
occupied and encroached upon by Goldcrest. Thus, in 1998, Cypress
filed a complaint with damages against Goldcrest before the Housing
and Land Use Regulatory Board (HLURB).

For its part, Goldcrest averred that it was granted the exclusive use of
the roof deck’s limited common area by Section 4(c) of the
condominium’s Master Deed. It likewise argued that it constructed the
contested doors for privacy and security purposes, and that,
nonetheless, the common areas occupied by it are unusable and
inaccessible to other condominium unit owners.

Upon the directive of HLURB Arbiter San Vicente, two ocular

inspections were conducted on the condominium project. During the
inspection, it was found that Goldcrest enclosed and used the common
area fronting the two elevators on the ninth floor as a storage room. It
was likewise discovered that Goldcrest constructed a permanent
structure which encroached 68.01 square meters of the roof deck’s
common area. It was noted that Goldcrest failed to secure an alteration
approval for the said permanent structure.

In his Decision dated December 2, 1999, Arbiter San Vicente ruled in

favor of Cypress.
On review, the HLURB Special Division modified the decision of Arbiter
San Vicente. It deleted the award for actual damages after finding that
the encroached areas were not actually measured and that there was no
evidentiary basis for the rate of compensation fixed by Arbiter San
Vicente. It likewise held that Cypress has no cause of action regarding
the use of the roof deck’s limited common area because only Goldcrest
has the right to use the same. The dispositive portion of the decision
reads:

Aggrieved, Cypress appealed to the Office of the President but the

appeal was dismissed.

Cypress thereafter elevated the matter to the Court of Appeals, which

partly granted its appeal. The appellate court noted that the right of
Goldcrest under Section 4(c) of the Master Deed for the exclusive use of
the easement covering the portion of the roof deck appurtenant to the
penthouse did not include the unrestricted right to build structures
thereon or to lease such area to third persons. Thus the appellate court
ordered the removal of the permanent structures constructed on the
limited common area of the roof deck.

The parties separately moved for partial reconsideration but both

motions were denied.

d. Issue: (1). Whether or not the Appellate Court erred in ruling that
Goldcrest built an Office Structure on a supposed encroached area in
the open space of the roof deck.
(2). Whether or not the Appellate Court erred in ruling that petitioner
impaired the easement on the portion of the roof deck designated as a
limited common area.

e. Held: Anent the first issue, Goldcrest contends that since the areas it
allegedly encroached upon were not actually measured during the
previous ocular inspections, the finding of the Court of Appeals that it
built an office structure on the roof deck’s limited common area is
erroneous and that its directive "to remove the permanent structures
constructed on the limited common area of the roof deck" is impossible
to implement.

On the other hand, Cypress counters that the Court of Appeals’ finding is
correct. It also argues that the absence of such measurement does not
make the assailed directive impossible to implement because the roof
deck’s limited common area is specifically identified by Section 4(c) of
the Master Deed.

We rule in favor of Cypress. At this stage of the proceedings, the failure

to measure the supposed encroached areas is no longer relevant
because the award for actual damages is no longer in issue. Moreover, a
perusal of the records shows that the finding of the Court of Appeals that
Goldcrest built an office structure on the roof deck’s limited common
area is supported by substantial evidence and established facts, to wit:
(1) the ocular inspection reports submitted by HLURB Inspector Edwin
D. Aquino; (2) the fact that the second ocular inspection of the roof deck
was intended to measure the actual area encroached upon by Goldcrest;
(3) the fact that Goldcrest had been fined for building a structure on the
limited common area; and (4) the fact that Goldcrest neither denied the
structure’s existence nor its encroachment on the roof deck’s limited
common area.

Likewise, there is no merit in Goldcrest’s submission that the failure to

conduct an actual measurement on the roof deck’s encroached areas
makes the assailed directive of the Court of Appeals impossible to
implement. As aptly pointed out by Cypress, the limited common area of
the roof deck is specifically identified by Section 4(c) of the Master Deed.
Anent the second issue, Goldcrest essentially contends that since the
roof deck’s common limited area is for its exclusive use, building
structures thereon and leasing the same to third persons do not impair
the subject easement.

For its part, Cypress insists the said acts impair the subject easement
because the same are already beyond the contemplation of the
easement granted to Goldcrest.

The question of whether a certain act impairs an easement is undeniably

one of fact, considering that its resolution requires us to determine the
act’s propriety in relation to the character and purpose of the subject
easement. In this case, we find no cogent reason to overturn the similar
finding of the HLURB, the Office of the President and the Court of
Appeals that Goldcrest has no right to erect an office structure on the
limited common area despite its exclusive right to use the same. We
note that not only did Goldcrest’s act impair the easement, it also illegally
altered the condominium plan, in violation of Section 22 of Presidential
Decree No. 957.
The owner of the dominant estate cannot violate any of the following
prescribed restrictions on its rights on the servient estate, to wit: (1) it
can only exercise rights necessary for the use of the easement; (2) it
cannot use the easement except for the benefit of the immovable
originally contemplated; (3) it cannot exercise the easement in any other
manner than that previously established; (4) it cannot construct anything
on it which is not necessary for the use and preservation of the
easement; (5) it cannot alter or make the easement more burdensome;
(6) it must notify the servient estate owner of its intention to make
necessary works on the servient estate; and (7) it should choose the
most convenient time and manner to build said works so as to cause the
least convenience to the owner of the servient estate. Any violation of
the above constitutes impairment of the easement.

Here, a careful scrutiny of Goldcrest’s acts shows that it breached a

number of the aforementioned restrictions. First, it is obvious that the
construction and the lease of the office structure were neither necessary
for the use or preservation of the roof deck’s limited area. Second, the
weight of the office structure increased the strain on the condominium’s
foundation and on the roof deck’s common limited area, making the
easement more burdensome and adding unnecessary safety risk to all
the condominium unit owners. Lastly, the construction of the said office
structure clearly went beyond the intendment of the easement since it
illegally altered the approved condominium project plan and violated
Section 4 of the condominium’s Declaration of Restrictions.
WHEREFORE, the petition is DENIED for lack of merit. The assailed
Decision dated September 29, 2005 of the Court of Appeals in CA G.R.
SP. No. 79924 is hereby AFFIRMED. Costs against the petitioner.
SO ORDERED.

5. Kinds of legal easement a. Relating to waters b. Right of way c.

Light and view

Case No. 1

Spouses Larry and Rosarita Williams vs. Rainero Zerda,

GR. No. 207146 (J. Carpio) March 15, 2017

a. Doctrine: 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. If having
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.
b. Case: Sps. Larry and Rosarita Williams v. Rainero Zerda, GR No.
207146 (J. Carpio) March 15, 2017

c. Facts: Respondent Rainero A. Zerda (Zerda) was the owner of a

parcel of land, known as Lot No. 1177-B (dominant estate) of the
Surigao Cadastre, situated in Barangay Lipata, Surigao City, with an
area of 16,160 square meters (sq. m.), and covered by Transfer
Certificate of Title (TCT) No. T- 18074. Immediately behind the dominant
estate was Lot No. 7298, a swampy mangrove area owned by the
Republic of the Philippines. On both sides were Lot No. 1177-C,
registered under the name of Woodridge Properties, Inc. and Lot No.
1206, in the name of Luis G. Dilag. In front was Lot No. 1201-A owned
by petitioner-spouses Larry and Rosarita Williams (Spouses
Williams), where the national highway ran along.

On July 28, 2004, Zerda filed a complaint against Spouses Williams for
easement of right of way. The complaint alleged that Zerda's lot was
without adequate outlet to a public highway, that it could not be
accessed except by passing through Spouses Williams' property; that
the isolation of Zerda's property was not due to his own acts, as it was
the natural consequence of its location; that the right of way he was
claiming was at a point least prejudicial to Spouses Williams' property;
and that on January 27, 2004, Zerda wrote to Spouses Williams formally
asking them to provide him with right of way, for which he was willing to
pay its reasonable value or to swap a portion of his property, but
Spouses Williams refused.
Spouses Williams countered that the complaint should be dismissed for
lack of cause of action because Zerda failed to establish the requisites
for the existence of right of way. They claimed that sometime in May
2003, they were in negotiation with Agripina Sierra (Sierra), the former
owner of the dominant estate, for its sale to them but the sale did not
materialize due to the intervention of Zerda. Spouses Williams further
averred that they undertook visible development projects on their
property as early as May 2003 amounting to ₱6,619,678.00; that the
isolation of the dominant estate was Zerda's fault; and that his requested
right of way would cause great damage and prejudice to them.

The petitioner owned Pillar Village Subdivision at Las Piñas where the
respondents allegedly built their shanties without the petitioner’s
knowledge or consent. Thus, a Complaint for accion publicianawas
filed against the respondents. The respondents denied the material
allegations of the Complaint asserting that it’s the local government and
not the petitioner, which has jurisdiction and authority over them.

RTC dismissed the complaint saying that the land in question is situated
on the sloping area leading down a creek and within the three-meter
legal easement and thus, it’s considered as public property and part of
public dominion under Article 502 of the New Civil Code. With this, only
the local government of Las Pinas City could institute an action for
recovery of possession or ownership.

CA dismissed the case but noted that the proper party to seek recovery
of the property is not the City of Las Pinas but the Republic of the
Philippines, through the OSG pursuant to Section 101 of the
Commonwealth Act (C.A.) No. 141 otherwise known as the Public Land
Act.

d. Issues: Whether respondent Zerda is entitled to an easement of right

of way.

e. Held : An entitlement to the easement of right of way requires that the

following requisites must be met.
1. The dominant estate is surrounded by other immovables and has no
adequate outlet to a public highway (Art. 649, par. 1);
2. There is payment of proper indemnity (Art. 649, par. 1);
3. The isolation is not due to the acts of the proprietor of the dominant
estate (Art. 649, last par.); and
4. 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).
All the above requisites are present in this case.

Even assuming that the right of way being claimed by the respondent is
not the shortest distance from the dominant estate to the public highway,
it is well-settled that "[t]he criterion of least prejudice to the servient
estate must prevail over the criterion of shortest distance although this is
a matter of judicial appreciation. xxx 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. If having 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." As previously discussed, the right of way claimed by the
respondent is at a point least prejudicial to the servient estate.

WHEREFORE, the petition is DENIED.

SO ORDERED.

Case No. 2
Helen Calimoso vs. Axel Roullo,
GR. No. 198594 (J. Carpio) January 25, 2016

a. Doctrine: Right-of-Way. To be entitled to an easement of right-of-way,

the following requisites should be met: “1. The dominant estate is
surrounded by other immovables and has no adequate outlet to a public
highway; 2. There is payment of proper indemnity; 3. The isolation is not
due to the acts of the proprietor of the dominant estate; and 4. 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.”

Article 650 of the Civil Code provides 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. Under this
guideline, whenever there are several tenements surrounding the
dominant estate, the right-of-way must be established on the tenement
where the distance to the public road or highway is shortest and where
the least damage would be caused. If these two criteria (shortest
distance and least damage) do not concur in a single tenement, the least
prejudice criterion must prevail over the shortest distance criterion.

b. Case Title: Helen Calimoso vs. Axel Roullo, GR. No. 198594 (J.
Carpio) January 25, 2016

c. Facts: Axel D. Roullo, filed his Complaint for Easement of Right-of-

Way before the Regional Trial Court against Helen, Marilyn, and Liby
Calimoso (petitioners), alleging that he is the owner of Lot 1462-C-15;
situated in Brgy. Sambag, Jaro, Iloilo City; that his lot is isolated by
several surrounding estates, including Lot 1454-B-256 which are owned
by the petitioners; that he needs a right-of-way in order to have access
to a public road; and that the shortest and most convenient access to the
nearest public road, i.e., Fajardo Subdivision Road, passes through the
petitioners’ lot.

Consequently, petitioners objected to the establishment of the easement

as it would cause substantial damage to their property, specifically the
two (2) houses already standing on their lot. They alleged that the
respondent have other right-of-way alternatives, particularly the existing
wooden bridge over Sipac Creek, and should the bridge be made
concrete, it could provide ingress or egress to the Fajardo Subdivision
Road.

The Regional Trial Court granted the respondent’s complaint and

ordered petitioners to provide an easement of right-of-way “measuring
14 meters in length and 3 meters in width (42 square meters, more or
less) over Lot 1454-B-25, specifically at the portion adjoining the bank of
Sipac Creek.” and ordered the respondent to pay the petitioners proper
indemnity in the amount of “Php1,500.00 per square meter of the portion
of the lot subject of the easement.” The petitioners appealed the RTC’s
decision to the CA.

The CA, affirmed the RTC’s decision in toto and held that all the
requirements of right-of-way were present in the respondent’s case: first,
that the subject lot is indeed surrounded by estates owned by different
individuals and the respondent has no access to any existing public
road; second, that the respondent has offered to compensate the
petitioners for the establishment of the right-of-way through the latter’s
property; third, that the isolation of the subject lot was not caused by the
respondent as he purchased the lot without any adequate ingress or
egress to a public highway; and fourth and last, given the available
options for the right-of-way, the route that passes through the petitioners’
lot requires the shortest distance to a public road and can be established
at a point least prejudicial to the petitioners’ property.
The petitioners moved to reconsider the CA’s decision arguing that,
while the establishment of the easement through their lot provided for
the shortest route, the adjudged right-of-way would cause severe
damage not only to the nipa hut situated at the corner of the petitioners’
lot, but also to the bedroom portion of the other concrete house that
stood on the property. The CA, however, did not consider the petitioners’
arguments on the ground that the matters alleged were not raised or
proven before the trial court, thus, it denied the petitioners’ motion for
reconsideration.

Hence the remedy of filing of the Petition for Certiorari was made by the
petitioners.

e. Issues: The main issue in this case is whether the right-of-way

passing through the petitioners’ lot satisfies the fourth requirement of
being established at the point least prejudicial to the servient estate.

e. Held: The Supreme Court found the Petition meritorious. It disagreed

with the findings of the CA that all the requisites for the valid
establishment of an easement of right-of-way are present in this case.

It ruled that although the all three requisites are present, the fourth
requisite remained to be resolved as the CA failed to see that there are
still options available other than petitioner’s property to become a
servient estate, where considerable damages will be incurred had their
property be pursued to become the servient estate.
The Supreme Court took notice of the three (3) right-of-way alternatives.
the first option is to traverse directly through the petitioners’ property,
which route has an approximate distance of fourteen (14) meters from
the respondent’s lot to the Fajardo Subdivision Road; the second option
is to pass through two vacant lots located on the southwest of the
respondent’s lot, which route has an approximate distance of forty-three
(43) meters to another public highway, the Diversion Road; and the third
option is to construct a concrete bridge over Sipac Creek and ask for a
right-of-way on the property of a certain Mr. Basa in order to reach the
Fajardo Subdivision Road.

Among the right-of-way alternatives, the CA adopted the first option, i.e.,
passing through the petitioner’s lot, because it offered the shortest
distance (from the respondent’s lot) to the Fajardo Subdivision Road and
the right-of-way would only affect the “nipa hut” standing on the
petitioners’ property. The CA ruled that the establishment of the
easement through the petitioners’ lot was more practical, economical,
and less burdensome to the parties. However the CA failed to consider
that the least prejudice criterion must prevail over the shortest distance
criterion.

Thus, as wisely ruled by the Supreme Court applying Article 650 of the
Civil Code, which provides 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. Under this guideline,
whenever there are several tenements surrounding the dominant estate,
the right-of-way must be established on the tenement where the distance
to the public road or highway is shortest and where the least damage
would be caused. If these two criteria (shortest distance and least
damage) do not concur in a single tenement, as ruled by the Highest
Court in the past, the least prejudice criterion must prevail over the
shortest distance criterion.

In this case, the establishment of a right-of-way through the petitioners’

lot would cause the destruction of the wire fence and a house on the
petitioners’ property. Although this right-of-way has the shortest distance
to a public road, it is not the least prejudicial considering the destruction
pointed out, and that an option to traverse two vacant lots without
causing any damage, albeit longer, is available.

As held by the Supreme Court, “mere convenience for the dominant

estate is not what is required by law as the basis of setting up a
compulsory easement”; that “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 roundabout way.”

WHEREFORE, we hereby GRANT the present petition for review on

certiorari and REVERSE and SET ASIDE the decision dated December
15, 2010, and resolution dated August 23, 2011, of the Court of Appeals
in C.A.-G.R. CEB CV No. 00834. The complaint for the easement of
right-of- way is DISMISSED without prejudice to another complaint that
the respondent may file against the proper party or parties based on the
terms of this Decision.

Costs against respondent Axel D. Roullo.

SO ORDERED.
Case No. 3

AMA Land, Inc. vs. Wack Wack Residents’ Association,

GR. No. 202342 (J. Caguioa) July 19, 2017

a. Doctrine: 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.

b. Case Title: AMA Land, Inc. vs. Wack Wack Residents’ Association,
GR. No. 202342 (J. Caguioa) July 19, 2017

c. Facts: A commercial and residential building project located at

Epifanio Delos Santos Avenue comer Fordham Street in Wack Wack
Village, Mandaluyong City, was proposed by AMA Land, Inc. (AMALI) in
the mid-1990s. The latter proceeded to secure the needed licenses and
permits for the construction of the project. On March 18, 1996, AMALI
notified WWRAI - a registered homeowners' association of Wack Wack
Village - of its intention to use Fordham Street as an access road and
staging area of the project. As AMALI received no response from
WWRAI, the former temporarily enclosed the job site and set up a field
office along Fordham Street. WWRAI claimed, however, that AMALI
already converted part of the said street as barrack site and staging area
even before March 18, 1996. All subsequent attempts of WWRAI to
remove the said field office proved futile.
On May 8, 1996, AMALI then filed a petition before the RTC, wherein it
seeks the temporary use of Fordham Street belonging to WWRAI as an
access road to AMALI's construction site of its AMA Tower project
pursuant to Article 656[5] of the Civil Code, and to establish a permanent
easement of right of way in its favor over a portion of Fordham Street
pursuant to Article 649[6] of the Civil Code. Aside from its prayer for the
declaration of temporary and permanent easement of right of way in its
favor over a portion of Fordham Street, AMALI is also] praying for: (a) a
temporary restraining order (TRO) to immediately enjoin WWRAI from
demolishing and removing the temporary field office, constructing a
fence isolating Fordham Street, and preventing AMALI from gaining
access to the construction site; (b) a writ of preliminary mandatory
injunction directing WWRAI to allow AMALI to use Fordham Street as an
access road and staging area; (c) an order making the TRO and the
aforesaid writ permanent; and (d) an order declaring a permanent right
of way in favor of AMALI.

The RTC granted the writ of preliminary mandatory injunction "directing

WWRAI to allow AMALI to use Fordham Street through a temporary
easement of right of way".

Due to financial crisis, the construction of the project was put on hold
and AMALI was constrained to finish merely the basement. Although
AMALI asserted that "it continued to pay WWRAI for the use of Fordham
Street", WWRAI claimed otherwise.
On June 10, 2011, the CA granted WWRAI's application for a temporary
restraining order, and, accordingly, AMALI was commanded to cease
and desist from further committing the act complained of, which is the
construction of the commercial and residential condominium project
located along EDSA comer Fordham Street in Wack Wack Village. The
CA granted WWRAI's application for a temporary restraining order, and,
accordingly, AMALI was commanded to cease and desist from the
construction of the commercial and residential condominium project The
application of WWRAI for the issuance of a writ of preliminary injunction
was granted as well pending resolution of the petition for certiorari before
the CA.

d. Issues: Whether the CA Decision amounts to a prejudgment of the

merits of Civil Case No. 65668 (original petition for easement of right of
way)

e. Held: The question of whether or not AMALI, as owner of the dominant

estate, may validly claim against WWRAI a compulsory permanent right
of way under Articles 649 and 650[26] of the Civil Code, will depend on a
finding that AMALI has established the existence of the following
requisites, namely: (1) the dominant estate is surrounded by other
immovables; (2) it is without adequate outlet to a public highway; (3)
after the proper indemnity has been paid; (4) the isolation was not due to
the proprietor of the dominant estate's own acts; and (5) the right of way
claimed is at a point least prejudicial to the servient estate. A sixth
requisite is that the right of way must be absolutely necessary for the
normal enjoyment of the dominant estate by its owner. There must be a
real, not fictitious or artificial, necessity for the right of way, and the right
cannot be claimed merely for the convenience of the owner of the
enclosed estate. The burden of proving the existence of the foregoing
requisites lies on AMALI, being the owner of the dominant estate. This
issue has been correctly recognized by the CA as still pending
determination by the RTC, in Civil Case No. 65668.
Article 656 of the Civil Code provides that this can be granted only after
the payment of the proper indemnity by AMALI, the owner of the
dominant estate; and only if AMALI has established that the easement is
indispensable for the construction of its AMA Tower Project.

The RTC erred and/or gravely abused its discretion when it granted
AMALI's application for preliminary mandatory injunction. The RTC
lacked jurisdiction to declare a temporary easement of right of way
arising from Article 656 of the Civil Code without a full-blown trial. Article
656 requires proof of indispensability and receipt of payment of the
proper indemnity for the damage caused by the owner of the dominant
estate before the owner of the servient estate can be compelled to grant
a temporary easement of right of way.

It appears that AMALI presented no witnesses to establish these

prerequisites. Being preconditions, they are akin to suspensive
conditions that must be fulfilled before the obligation on the part of
WWRAI to allow the easements can arise. Until the preconditions are
met, AMALI has no legal basis to use a portion of Fordham Street as an
access road and staging area of its AMA Tower project. To allow AMALI
to do so would be in contravention of the legal provisions on the
establishment and grant of the legal easement of right of way under the
Civil Code.

WHEREFORE, premises considered, the petition for review

on certiorari in G.R. No. 202342 is hereby GRANTED, and the Court of
Appeals' Decision dated June 14, 2012 in CA-G.R. SP No. 118994 is
hereby REVERSED and SET ASIDE. The October 28, 2010 and
February 23, 2011 Orders of the Regional Trial Court of Pasig City
assigned in San Juan (Metropolitan Manila), Branch 264 in Civil Case
No. 65668 are REINSTATED, and its Order dated July 24, 1997 insofar
as it granted a temporary easement of right of way over Fordham Street
in favor of petitioner AMA Land, Inc. is concerned is declared VOID and
of NO EFFECT. The said Regional Trial Court is DIRECTED to proceed
with the trial of the case with dispatch.

SO ORDERED.

Case No. 4

Margarita F. Castro vs. Napoleon A. Monsod,

GR. No. 183719 (J. Carpio) February 2, 2011

a. Doctrine: An annotation of the existence of the subjacent and lateral

support is no longer necessary. It exists whether or not it is annotated or
registered in the registry of property. A judicial recognition of the same
already binds the property and the owner of the same, including her
successor -in- interest.

b. Case Title: Margarita F. Castro vs. Napoleon A. Monsod G.R.

No.183719, February 2, 2011
c. Facts: Petitioner is the registered owner of a parcel of land located on
Garnet St. Manuela Homes, Pamplona, Las Pinas City, and covered by
TCT No.T-36071, with an area of 130 sq.meters. Respondent, on the
other hand, is the owner of the property adjoining the lot of petitioner,
located on Lyra St, Moonwalk Village, Phase 2, Las Pinas City. There is
a concrete fence, more or less two meters high, diving Manuela Homes
from Moonwalk Village.

On February 29, 2000, respondent caused the annotation of an adverse

claim against 65 sq.m. of the property of petitioner covered by TCT No.
T-36071. The adverse claim was filed without any claim of ownership
over the property. Respondent was merely asserting the existing legal
easement of lateral and subjacent support at the rear portion of his state
to prevent the property from collapsing, since his property is located at
an elevated plateau of 15 feet, more or less, above the level of
petitioner’s property. Respondent also filed a complaint for malicious
mischief and malicious destruction before the office of the barangay
chairman.

In defiance, petitioner filed a complaint for damages with temporary

restraining order/writ of preliminary injunction before the RTC of Las
Pinas City. Petitioner also prayed that the Register of Deeds of Las
Pinas City be ordered to cancel the annotation of the adverse claim on
TCT No. T-36071.

Prior to the filing of the case before the RTC, there were deposits of soil
and rocks about 2 meters away from the front door of the house of the
petitioner. As such, the petitioner was not able to park her vehicle at the
dead end portion of Garnet Street. When the petitioner noticed a leak
that caused the front portion of her house to be slippery, she hired
construction workers to see where the leak was coming from. The
workers had already started digging when police officers sent by
respondent came and stopped the workers from finishing their job.
Petitioner averred that when she bought the property from Manuela
Homes in 1994, there was no annotation or existence of any easement
over the property. Respondent neither asked permission nor talked to
her with regard to the use of 65 sq.m. of her property as easement.

Respondent asserted that the affidavit of adverse claim was for the
annotation of the lateral and subjacent easement of his property over the
property of petitioner, in view of the latter’s manifest determination to
remove the embankment left by the developer of Manuela Homes.

d. Issues: 1. Whether the easement of lateral and subjacent support

exists on the subject adjacent properties.
2. Whether the same may be annotated at the back of the title of the
servient estate.

e. Held: 1. Yes, easement of lateral and subjacent support exists on the

subject adjacent properties.
2. No, the same may NOT be annotated at the back of the title of the
servient estate.

Article 437 of the Civil Code provides that the owner of a parcel of lands
is the owner of its surface and of everything under it, and he can
construct thereon any works, or make any plantations and excavations
which may be deemed proper.However, such right of the owner is not
absolute and is subject to the following limitations: 1.) servitudes or
easements, 2.) special laws, 3.)ordinances,4.) reasonable requirements
of aerial navigation, and 5.) rights of third persons.
Respondent’s assertion that he has an adverse claim over the 65 sq.m.
property of petitioner is misplaced, since he does not have a claim over
the ownership of the land. Annotation is done to apprise third persons
that there is a controversy over the ownership of the land and to
preserve and protect the right of the adverse claimant during the
pendency of the controversy. It is a notice to third persons that any
transaction regarding the disputed land is subject to the outcome of the
dispute.

In reality, what respondent is claiming is a judicial recognition of the

existence of the easement of subjacent and lateral support over the
65sq.m. portion of petitioner’s property covering the land support/
embankment area.

Article 648 of the Civil Code provides that no proprietor shall make such
excavations upon his land as to deprive any adjacent land or building of
sufficient lateral or subjacent support.

We sustain the CA in declaring a permanent injunction on the part of the

petitioner from making injurious excavations is necessary in order to
protect the interest of respondent. However, an annotation of the
existence of the subjacent and lateral support is no longer necessary.

WHEREFORE, in view of the foregoing, the Decision dated May 25,

2007 and the Resolution dated July 14, 2008 of the Court of Appeals in
CA-G.R. CV No. 83973 are hereby AFFIRMED WITH MODIFICATION
that the annotation at the back of Transfer Certificate of Title No. T-
36071, recognizing the existence of the legal easement of subjacent and
lateral support constituted on the lengthwise or horizontal land
support/embankment area of sixty-five (65) square meters, more or less,
of the property of petitioner Margarita F. Castro, is hereby ordered
removed.

SO ORDERED.

Case No. 5
Crispin Dichoso, Jr. vs. Patrocinio L. Marcos,
GR. No. 180282 (J. Carpio) April 11, 2011

a. Doctrine: Easement involves an abnormal restriction on the property

rights of the servient owner and is regarded as a charge or encumbrance
on the servient estate. It is incumbent upon the owner of the dominant
estate to establish by clear and convincing evidence the presence of all
precondition before his claim for easement of right of way may be
granted.
Mere convenience for the dominant estate is not what is required by law
as the basis of setting up a compulsory easement. The convenience of
the dominant estate has never been the gauge for the grant of
compulsory right of way. The true standard for the grant of the legal right
is "adequacy." In order to justify the imposition of an easement of right of
way, there must be real, not fictitious or artificial, necessity for it. As
such, when there is already an existing adequate outlet from the
dominant estate to a public highway, as in this case, even when the said
outlet, for one reason or another, be inconvenient, the need to open up
another servitude is entirely unjustified.
b. Case Title: Crispin Dichoso, Jr. vs. Patrocinio L. Marcos, GR. No.
180282 (J. Carpio) April 11, 2011

c. Facts: On August 2, 2002, petitioners Crispin Dichoso, Jr., Evelyn

Valdez and Rosemarie Benito filed a Complaint for Easement of Right of
Way against respondent Patrocinio Marcos. In their complaint,
petitioners alleged that they are the owners of Lot No. 21553 of the
Cadastral Survey of Laoag City; while the respondent was the owner of
Lot 1. As petitioners has no access to a public road to and from their
property, they claimed to have used a portion of Lot No. 1 in accessing
the road since 1970. However, the respondent blocked the passageway
with piles of sand. The respondent contends that the petitioners' claim of
right of way is only due to expediency and not necessity since there is an
existing easement of right of way granted by Spouses Arce who own the
other adjacent lot. The former instituted the complaint before the RTC
and prayed that they be granted a right of way over an area of 54 sqm of
Lot No.1 by paying the defendant the amount of P54, 000.00 and that
the right ne annotated on defendant’s title. In addition to that, the
defendant will pay the plaintiffs the sum of P30,000.00 as damages for
attorney’s fees and cost of suit.

In the defendants’s answer, he denied that he allowed anybody to use

Lot No.1 as passageway. Moreover, he stated that petitioner’s claim of
right of way is only due to expediency and not necessity for there already
is an existing easement of right of way available to petitioners granted by
Spouses Arce. Thus, there is no need to establish another easement
over respondent’s property.
The RTC rendered a decision in favor of the petitioners by finding that
they had adequately established the requisites to justify an easement of
right of way in accordance with Article 649 and 650 of the Civil Code.
Also, the trial court declared petitioners in good faith as they expressed
their willingness to pay proper indemnity. However, the Court of Appeals
reversed and set aside the RTC decision ruling that a right of way had
already been granted by the servient estate. Thus, there is no need to
establish as easement over the respondent an easement over the
respondent’s property.

d. Issue: Whether or not the petitioners are entitled to the grant of

easement of right of way under Articles 649 and 650 of the Civil Code.

e. Held: No. Articles 649 and 650 provide requisites for the grant of right
of way namely; 1) The dominant estate is surrounded by other
immovables and has no adequate outlet to a publichighway; 2) There is
payment of proper indemnity; 3) The isolation is not due to the acts of
the proprietor of the dominant estate; and 4) 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. The Court finds petitioners'
concept of what is “adequate outlet” a complete disregard of the well-
entrenched doctrine that in order to justify the imposition of an easement
of right of way, there must be real, not fictitious or artificial, necessity for
it. Mere convenience for the dominant estate is not what is required by
law as the basis of setting up a compulsory easement. Even in the face
of necessity, if it can be satisfied without imposing the easement, the
same should not be imposed.
WHEREFORE, premises considered, the petition is DENIED. The Court
of Appeals Decision dated January 31, 2007 and Resolution dated
October 23, 2007 in CA-G.R. CV No. 85471 are AFFIRMED.

SO ORDERED.

G. NUISANCE

Case No.1

Natividad C. Cruz vs. Pandacan Hiker’s Club, Inc.

GR. No. 188213 (. Peralta) January 11, 2016

a. Doctrine: A nuisance when there is "any act, omission,

establishment, business, condition of property, or anything else which:
(1) injures or endangers the health or safety of others; or (2) annoys or
offends the senses; or (3) shocks, defies or disregards decency or
morality; or (4) obstructs or interferes with the free passage of any public
highway or street, or any body of water; or (5) hinders or impairs the use
of property." But other than the statutory definition, jurisprudence
recognizes that the term "nuisance" is so comprehensive that it has been
applied to almost all ways which have interfered with the rights of the
citizens, either in person, property, the enjoyment of his property, or his
comfort.

A nuisance is classified in two ways: (1) according to the object it affects;

or (2) according to its susceptibility to summary abatement.
As for a nuisance classified according to the object or objects that it
affects, a nuisance may either be: (a) a public nuisance, i.e., one which
"affects a community or neighborhood or any considerable number of
persons, although the extent of the annoyance, danger or damage upon
individuals may be unequal"; or (b) a private nuisance, or one "that is not
included in the foregoing definition" which, in jurisprudence, is one which
"violates only private rights and produces damages to but one or a few
persons."

A nuisance may also be classified as to whether it is susceptible to a

legal summary abatement, in which case, it may either be: (a) a
nuisance per se, when it affects the immediate safety of persons and
property, which may be summarily abated under the undefined law of
necessity; or, (b) a nuisance per accidens, which "depends upon certain
conditions and circumstances, and its existence being a question of fact,
it cannot be abated without due hearing thereon in a tribunal authorized
to decide whether such a thing does in law constitute a nuisance;" it may
only be so proven in a hearing conducted for that purpose and may not
be summarily abated without judicial intervention.

Under Article 700 of the Civil Code, the abatement, including one without
judicial proceedings, of a public nuisance is the responsibility of the
district health officer. Based Article 702 of the Code, the district health
officer is also the official who shall determine whether or not abatement,
without judicial proceedings, is the best remedy against a public
nuisance.

Article 704 of the Civil Code provides that any private person may abate
a public nuisance which is specially injurious to him by removing, or if
necessary, by destroying the thing which constitutes the same, without
committing a breach of the peace, or doing unnecessary injury. But it is
necessary:
(1) That demand be first made upon the owner or possessor of the
property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district health officer and
executed with the assistance of the local police; and
(4) That the value of the destruction does not exceed three thousand
pesos.

b. Case Title: Natividad C. Cruz vs. Pandacan Hiker's Club, Inc., G.R.
No. 188213 (J. Peralta) (January 11,2016)

c. Facts: Petitioner Natividad C. Cruz (Cruz) was Punong Barangay or

Chairperson of Barangay 848, Zone 92, City of Manila. On November
10, 2006, around five o'clock in the afternoon, and along Central Street,
Pandacan, Manila, within the vicinity of her barangay, she allegedly
confronted persons playing basketball with the following statements:
Bakit nakabukas ang (basketball) court? Wala kayong karapatang
maglaro sa court na 'to, barangay namin ito! xxx xxx xxx Wala kayong
magagawa. Ako ang chairman dito. Mga walanghiya kayo, patay gutom!
Hindi ako natatakot! Kaya kong panagutan lahat!

Then, she allegedly gave an order to the other petitioner, Barangay

Tanod Benjamin dela Cruz (Dela Cruz), to destroy the basketball ring by
cutting it up with a hacksaw which Dela Cruz promptly complied with,
thus, rendering the said basketball court unusable.
The acts of petitioners prompted the filing of a Complaint (for Malicious
Mischief, Grave Misconduct, Conduct Prejudicial to the Best Interest of
the Service and Abuse of Authority) before the Prosecutor's Office and
the Office of the Ombudsman by the group that claims to be the
basketball court's owners, herein respondents Pandacan Hiker's Club,
Inc. (PHC) and its president Priscila Ilao (Ilao). In the complaint, they
alleged that PHC, a non-stock, non-profit civic organization engaged in
"health, infrastructure, sports and other so-called poverty alleviation
activities" in the Pandacan area of Manila, is the group that had donated,
administered and operated the subject basketball court for the Pandacan
community until its alleged destruction by petitioners.

The complaint averred that the damage caused by petitioners was in the
amount of around P2,000.00. It was supported by the affidavits of ten
(10) members of PHC who allegedly witnessed the destruction.
Meanwhile, respondent Ilao added that the acts of petitioner Cruz, the
Barangay Chairperson, of ordering the cutting up of the basketball ring
and uttering abusive language were "unwarranted and unbecoming of a
public official."
In answer to the complaint, Cruz alleged that the basketball court
affected the peace in the barangay and was the subject of many
complaints from residents asking for its closure. She alleged that the
playing court blocked jeepneys from passing through and was the site of
rampant bettings and fights involving persons from within and outside
the barangays. She claimed that innocent persons have been hurt and
property had been damaged by such armed confrontations, which often
involved the throwing of rocks and improvised "molotov" bombs. She
also averred that noise from the games caused lack of sleep among
some residents and that the place's frequent visitors used the
community's fences as places to urinate. Cruz maintained that the
court's users never heeded the barangay officials' efforts to pacify them
and when the basketball ring was once padlocked, such was just
removed at will while members of the complainants' club continued
playing. When Cruz asked for the PHC to return the steel bar and
padlock, the request was simply ignored, thus, prompting her to order
Dela Cruz to destroy the basketball ring. The destruction was allegedly
also a response to the ongoing clamor of residents to stop the basketball
games. Cruz denied allegations that she shouted invectives at the PHC
members. In support of her answer, Cruz attached copies of the
complaints, a "certification" and letters of barangay residents asking for a
solution to the problems arising from the disruptive activities on the said
playing venue.

After the parties' submission of their respective Position Papers, the

Office of the Ombudsman rendered its Decision dated April 26, 2007
dismissing the complaint filed by Ilao, et al. The Ombudsman found that
the act of destroying the basketball ring was only motivated by Cruz and
Dela Cruz performing their sworn duty, as defined in the Local
Government Code. It found the act to be a mere response to the clamor
of constituents. The office found that though the cutting of the ring was
"drastic," it was done by the barangay officials within their lawful duties,
as the act was only the result of the unauthorized removal of and failure
to return the steel bar and padlock that were earlier placed
thereon. Neither did the office give credence to the allegation that Cruz
uttered invectives against the complainants' witnesses, noting that the
said witnesses are tainted by their personal animosity against the
barangay officials.
After the Ombudsman's ruling dismissing the complaint filed against
Cruz and Dela Cruz, the complainants Ilao, et al. filed a petition for
review before the Court of Appeals praying for the latter court to nullify
the Ombudsman's decision.The petition's thesis was that any actions in
furtherance of the community's welfare must be approved by ordinance
and that unless a thing is a nuisance per se, such a thing may not be
abated via an ordinance and extrajudicially.

Commenting on the petition for review, the Office of the Ombudsman,

through the Office of the Solicitor General, averred that Section 389 of
the Local Government Code, which defines the powers, duties and
functions of the punong barangay, among which are the power to
enforce all laws and ordinances applicable within the barangay and the
power to maintain public order in the barangay and, in pursuance
thereof, to assist the city or municipal mayor and
the sanggunian members in the performance of their duties and
functions, does not require an ordinance for the said official to perform
said functions. The acts were also in pursuance of the promotion of the
general welfare of the community, as mentioned in Section 16 of the
Code.

In its assailed Decision dated March 31, 2008, the Court of Appeals
reversed and set aside the decision of the Office of the Ombudsman.
The appellate court found petitioner Natividad C. Cruz liable for conduct
prejudicial to the best interest of the service and penalized her with a
suspension of six (6) months and one (1) day, while it reprimanded the
other petitioner Benjamin dela Cruz, and also warned both officials that a
future repetition of the same or similar acts will be dealt with more
severely.
The appellate court sustained the contentions of Ilao, et al. that Cruz
and Dela Cruz performed an abatement of what they thought was a
public nuisance but did the same without following the proper legal
procedure, thus making them liable for said acts. It held Cruz to be
without the power to declare a thing a nuisance unless it is a
nuisance per se. It declared the subject basketball ring as not such a
nuisance and, thus, not subject to summary abatement. The court added
that even if the same was to be considered a nuisance per accidens, the
only way to establish it as such is after a hearing conducted for that
purpose.

A motion for reconsideration filed by Cruz and Dela Cruz was likewise
denied by the appellate court. Hence, they filed this petition.

Petitioners maintain that they acted merely with the intention to regain
free passage of people and vehicles over the street and restore the
peace, health and sanitation of those affected by the basketball court.
Cruz, in particular, asserts that she merely abated a public nuisance
which she claimed was within her power as barangay chief executive to
perform and was part of her duty to maintain peace and order.

d. Issue: Whether or not the petitioners had the intention to regain free
passage of people and vehicles over the subject street and restore the
peace, health and sanitation of those affected by the basketball court.

e. Held: The Court denied the petition. Under normal circumstances, it

would not disturb the findings of fact of the Office of the Ombudsman
when they are supported by substantial evidence. However, the Court
made an exception of the case at bar because the findings of fact of the
Ombudsman and the Court of Appeals widely differ. It is held that the
administrative offense of conduct prejudicial to the interest of the service
is committed when the questioned conduct tarnished the image and
integrity of the officer's public office; the conduct need not be related or
connected to the public officer's official functions for the said officer to be
meted the corresponding penalty. In one case, this Court also stated
that the Machiavellian principle that "the end justifies the means" has no
place in government service, which thrives on the rule of law,
consistency and stability.

For these reasons, in the case at bar, the Court agrees with the
appellate court that the petitioners’ actions, though well-intentioned,
were improper and done in excess of what was required by the situation
and fell short of the aforementioned standards of behavior for public
officials.

It is clear from the records that petitioners indeed cut or sawed in half the
subject basketball ring, which resulted in the destruction of the said
equipment and rendered it completely unusable. Petitioners also moved
instantaneously and did not deliberate nor consult with the Sangguniang
Barangay prior to committing the subject acts; neither did they involve
any police or law enforcement agent in their actions. They acted while
tempers were running high as petitioner Cruz, the Barangay
Chairperson, became incensed at the removal of the steel bar and
padlock that was earlier used to close access to the ring and at the
inability or refusal of respondents' group to return the said steel bar and
padlock to her as she had ordered.
This Court has ruled time and again that no public official is above the
law. The Court of Appeals correctly ruled that although petitioners claim
to have merely performed an abatement of a public nuisance, the same
was done summarily while failing to follow the proper procedure therefor
and for which, petitioners must be held administratively liable.

Prevailing jurisprudence holds that unless a nuisance is a nuisance per

se, it may not be summarily abated.
There is a nuisance when there is "any act, omission, establishment,
business, condition of property, or anything else which: (1) injures or
endangers the health or safety of others; or (2) annoys or offends the
senses; or (3) shocks, defies or disregards decency or morality; or (4)
obstructs or interferes with the free passage of any public highway or
street, or any body of water; or (5) hinders or impairs the use of
property." But other than the statutory definition, jurisprudence
recognizes that the term "nuisance" is so comprehensive that it has been
applied to almost all ways which have interfered with the rights of the
citizens, either in person, property, the enjoyment of his property, or his
comfort.

A nuisance is classified in two ways: (1) according to the object it affects;

or (2) according to its susceptibility to summary abatement.

As for a nuisance classified according to the object or objects that it

affects, a nuisance may either be: (a) a public nuisance, i.e., one which
"affects a community or neighborhood or any considerable number of
persons, although the extent of the annoyance, danger or damage upon
individuals may be unequal"; or (b) a private nuisance, or one "that is not
included in the foregoing definition" which, in jurisprudence, is one which
"violates only private rights and produces damages to but one or a few
persons."

A nuisance may also be classified as to whether it is susceptible to a

legal summary abatement, in which case, it may either be: (a) a
nuisance per se, when it affects the immediate safety of persons and
property, which may be summarily abated under the undefined law of
necessity; or, (b) a nuisance per accidens, which "depends upon certain
conditions and circumstances, and its existence being a question of fact,
it cannot be abated without due hearing thereon in a tribunal authorized
to decide whether such a thing does in law constitute a nuisance;" it may
only be so proven in a hearing conducted for that purpose and may not
be summarily abated without judicial intervention.

In the case at bar, none of the tribunals below made a factual finding
that the basketball ring was a nuisance per se that is susceptible to a
summary abatement. And based on what appears in the records, it can
be held, at most, as a mere nuisance per accidens, for it does not pose
an immediate effect upon the safety of persons and property, the
definition of a nuisance per se. Culling from examples cited in
jurisprudence, it is unlike a mad dog on the loose, which may be killed
on sight because of the immediate danger it poses to the safety and
lives of the people; nor is it like pornographic materials, contaminated
meat and narcotic drugs which are inherently pernicious and which may
be summarily destroyed; nor is it similar to a filthy restaurant which may
be summarily padlocked in the interest of the public health. A basketball
ring, by itself, poses no immediate harm or danger to anyone but is
merely an object of recreation. Neither is it, by its nature, injurious to
rights of property, of health or of comfort of the community and, thus, it
may not be abated as a nuisance without the benefit of a judicial
hearing.

But even if it is assumed, ex gratia argumenti, that the basketball ring

was a nuisance per se, but without posing any immediate harm or threat
that required instantaneous action, the destruction or abatement
performed by petitioners failed to observe the proper procedure for such
an action which puts the said act into legal question.
Under Article 700 of the Civil Code, the abatement, including one without
judicial proceedings, of a public nuisance is the responsibility of the
district health officer. Under Article 702 of the Code, the district health
officer is also the official who shall determine whether or not abatement,
without judicial proceedings, is the best remedy against a public
nuisance. The two articles do not mention that the chief executive of the
local government, like the Punong Barangay, is authorized as the official
who can determine the propriety of a summary abatement.

Further, both petitioner Cruz, as Punong Barangay, and petitioner Dela

Cruz, as Barangay Tanod, claim to have acted in their official capacities
in the exercise of their powers under the general welfare clause of the
Local Government Code. However, petitioners could cite no barangay
nor city ordinance that would have justified their summary abatement
through the exercise of police powers found in the said clause. No
barangay nor city ordinance was violated; neither was there one which
specifically declared the said basketball ring as a nuisance per se that
may be summarily abated. Though it has been held that a nuisance per
se may be abated via an ordinance, without judicial proceedings,the
Court adds that, in the case at bar, petitioners were required to justify
their abatement via such an ordinance because the power they claim to
have exercised – the police power under the general welfare clause – is
a power exercised by the government mainly through its legislative, and
not the executive, branch. The prevailing jurisprudence is that local
government units such as the provinces, cities, municipalities and
barangays exercise police power through their respective legislative
bodies.

Clearly, the complete destruction of the basketball ring by the petitioners

is justified neither by law or ordinance nor even by equity or necessity,
which makes the act illegal and petitioners liable. And even as an action
to maintain public order, it was done excessively and was unjustified.
Where a less damaging action, such as the mere padlocking, removal or
confiscation of the ring would have sufficed, petitioners resorted to the
drastic measure of completely destroying and rendering as unusable the
said ring, which was a private property, without due process. Such an act
went beyond what the law required and, in being so, it tarnished the
image and integrity of the offices held by petitioners and diminished the
public's confidence in the legal system. Petitioners who were public
officials should not have been too earnest at what they believed was an
act of restoring peace and order in the community if in the process they
would end up disturbing it themselves. They cannot break the law that
they were duty-bound to enforce. Although the Court bestows sympathy
to the numerous constituents who allegedly complained against the
basketball court to petitioners, it cannot legally agree with the methods
employed by the said officials. Their good intentions do not justify the
destruction of private property without a legal warrant, because the
promotion of the general welfare is not antithetical to the preservation of
the rule of law.
Petitioners do not claim to have acted in their private capacities but in
their capacities as public officials, thus, they are held administratively
liable for their acts. And even in their capacities as private individuals
who may have abated a public nuisance, petitioners come up short of
the legal requirements.

WHEREFORE, premises considered, the petition is DENIED. The Court

of Appeals Decision dated March 31, 2008 in CA-G.R. SP. No. 104474
is AFFIRMED.

SO ORDERED.

Case No. 2

Crisostomo Aquino vs. Municipality of Malay, Aklan,

GR. No. 211356 (J. Velasco) September 29, 2014

a. Doctrine: Based on law and jurisprudence, the office of the mayor

has quasi-judicial powers to order the closing and demolition of
establishments. This power granted by the LGC, as earlier explained,
We believe, is not the same power devolved in favor of the LGU under
Sec. 17 (b)(2)(ii), as above-quoted, which is subject to review by the
DENR. The fact that the building to be demolished is located within a
forestland under the administration of the DENR is of no moment, for
what is involved herein, strictly speaking, is not an issue on
environmental protection, conservation of natural resources, and the
maintenance of ecological balance, but the legality or illegality of the
structure. Rather than treating this as an environmental issue then, focus
should not be diverted from the root cause of this debacle compliance.

b. Case Title: Crisostomo Aquino vs. Municipality of Malay, Aklan, GR.

No. 211356 (J. Velasco) September 29, 2014

c. Facts: Petitioner is the president and chief executive officer of

Boracay Island West Cove Management Philippines, Inc. (Boracay West
Cove). On January 7, 2010, the company applied for a zoning
compliance with the municipal government of Malay, Aklan.2 While the
company was already operating a resort in the area, and the application
sought the issuance of a building permit covering the construction of a
three-storey hotel over a parcel of land measuring 998 sqm. located in
Sitio Diniwid, Barangay Balagab, Boracay Island, Malay, Aklan, which is
covered by a Forest Land Use Agreement for Tourism Purposes (FLAgT)
issued by the Department of Environment and Natural Resources
(DENR) in favor of Boracay West Cove.

Through a Decision on Zoning dated January 20, 2010, the Municipal

Zoning Administrator denied petitioner’s application on the ground that
the proposed construction site was within the “no build zone”
demarcated in Municipal Ordinance 2000-131 (Ordinance).

Petitioner appealed the denial action to the Office of the Mayor but
despite follow up, no action was ever taken by the respondent mayor. A
Cease and Desist Order was issued by the municipal government,
enjoining the expansion of the resort, and on June 7, 2011, the Office of
the Mayor of Malay, Aklan issued the assailed EO 10, ordering the
closure and demolition of Boracay West Cove’s hotel.
Petitioner filed a Petition for Certiorari with prayer for injunctive relief with
the CA Alleging that the order was issued and executed with grave
abuse of discretion.

PETITIONER CONTENTION: The hotel cannot summarily be abated

because it is not a nuisance per se, given the hundred million peso-
worth of capital infused in the venture. And the Municipality of Malay,
Aklan should have first secured a court order before proceeding with the
demolition.

RESPONDENTS CONTENTION: The demolition needed no court order

because the municipal mayor has the express power under the Local
Government Code (LGC) to order the removal of illegally constructed
buildings.

d. Issue: Whether or not a judicial proceeding be conducted first before

the LGU can order the closure and demolition of the property in
question.

e. Held Generally, LGUs have no power to declare a particular thing as a

nuisance unless such a thing is a nuisance per se.

Despite the hotel’s classification as a nuisance per accidens, however,

we still find in this case that the LGU may nevertheless properly order
the hotel’s demolition. This is because, in the exercise of police power
and the general welfare clause, property rights of individuals may be
subjected to restraints and burdens in order to fulfill the objectives of the
government. Otherwise stated, the government may enact legislation
that may interfere with personal liberty, property, lawful businesses and
occupations to promote the general welfare.

Under the law, insofar as illegal constructions are concerned, the mayor
can, after satisfying the requirement of due notice and hearing, order
their closure and demolition.

One such piece of legislation is the LGC, which authorizes city and
municipal governments, acting through their local chief executives, to
issue demolition orders. Under existing laws, the office of the mayor is
given powers not only relative to its function as the executive official of
the town; it has also been endowed with authority to hear issues
involving property rights of individuals and to come out with an effective
order or resolution thereon.20 Pertinent herein is Sec. 444 (b) (3) (vi) of
the LGC, which empowered the mayor to order the closure and removal
of illegally constructed establishments for failing to secure the necessary
permits.

WHEREFORE, in view of the foregoing, the petition is hereby DENIED

for lack of merit. The Decision and the Resolution of the Court of
Appeals in CA-G.R. SP No. 120042 dated August 13, 2013 and
February 3, 2014, respectively, are hereby AFFIRMED.

SO ORDERED.

Case No. 3.

North Greenhills Association, Inc. vs. Atty. Narciso Morales,

 GR No. 222821, (J. Mendoza) August 9, 2017

a. Doctrine: A nuisance per accidens is one which depends upon

certain conditions and circumstances, and its existence being a question
of fact, it cannot be abated without due hearing thereon in a tribunal
authorized to decide whether such a thing does in law constitute a
nuisance. It requires a determination of such circumstances as to
warrant the abatement of the nuisance. That can only be done with
reasonable notice to the person alleged to be maintaining or doing the
same of the time and place of hearing before a tribunal authorized to
decide whether such a thing or act does in law constitute a nuisance per
accidens.

b. Case Title: North Greenhills Association, Inc. vs. Atty. Narciso

Morales, GR No. 222821, (J. Mendoza) August 9, 2017

c. Facts: Atty. Narciso Morales (Morales) is a resident of North

Greenhills Subdivision in San Juan City. His house is located alongside
Club Filipino Avenue and adjacent to McKinley Park, an open
space/playground area owned and operated by National Greenhills
Association (NGA). He also has a personal access door, which he built
through a wall separating his house from the park. This access door,
when unlocked, opens directly to the park. On the other hand, NGA, an
association composed of members of the subdivision, organized to
promote and advance the best interests, general welfare, prosperity and
safeguard the well-being of the owners, lessees and occupants of North
Greenhills, is the undisputed owner of the park. It has acquired
ownership thereof through a donation made by the original owner,
Ortigas & Co. Ltd.
In June 2003, NGA started constructing a pavillon or kiosk occupying
the side of the park adjacent to the residence of Atty. Morales. Part of
the design was a public restroom intended to serve the needs of park
guests and members of NGA. Said restroom was constructed alongside
the concrete wall separating the house of Atty. Morales from the park.
Objecting the construction of the restroom, Atty. Morales filed on July 23,
2003 a complaint before the HLURB. He amended his complaint and
additionally sought the demolition of the pavillon. He alleged that for a
period spanning 33 years, he had open, continuous, immediate and
unhampered access to the subdivision park through his side door, which
also served as an exit door in case of any eventuality; that having such
access to the park was one of the considerations why he purchased the
lot; that the construction of the pavilion was illegal because it violated his
right to immediate access to the park, Presidential Decree No. 957 and
the Deed of Donation of Ortigas & Co. Ltd., which required the park to
be maintained as an open area; and that the restroom constructed by
NGA was a nuisance per se. Judgment is hereby rendered ordering
respondents of the removal of the pavilion and the relocation of the
common toilet in a place where it will not be a nuisance to any resident.
Respondents are further directed to remove the obstruction to the side
door of the complainant. On appeal to the Office of the President (OP),
the OP affirmed in toto the ruling of the HLURB Board. The Court of
Appeals also affirmed the ruling of the OP. It found no error on the part
of the OP in affirming the characterization of the restrooms built as
nuisance per accidens considering that the structure posed sanitary
issues which could adversely affect not only Atty. Morales, but also his
entire household; that even if there existed a perimeter wall between the
park and Atty. Morales’ home, the odor emanating from the restroom
could easily find its way to the dining area, and the foul and noxious
smell would make it very difficult and annoying for the residents of the
house to eat; and that the proximity of the restroom to Atty. Morales’
house placed the people residing therein at a greater risk of contracting
diseases both from improperly disposed waste and human excrements,
as well as from flies, mosquitoes and other insects, should NGA fail to
maintain the cleanliness of the structures. NGA moved for
reconsideration, but its motion was denied.

d. Issues: Whether the CA correctly ruled that the restroom built by NGA
inside the McKinley Park is a nuisance per accidens.

e. Held: The CA in disposing the case, ruled that the restroom posed
sanitary issues to Atty. Morales and is, therefore, a nuisance per
accidens. Such is a finding of fact, which is generally conclusive upon
the Court, because it is not its function to analyze and weigh the
evidence all over again. There are, however, well-recognized
exceptions. These are (1) when the findings are grounded entirely on
speculations, surmises or conjectures; (2) when the inference made is
manifestly mistaken, absurd or impossible; (3) when there is grave
abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of fact are conflicting; (6)
when in making its findings the Court of Appeals went beyond the issues
of the case, or its findings are contrary to the admissions of both the
appellant and the appellee; (7) when the findings are contrary to that of
the trial court; (8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts set forth in
the petition as well as in the petitioners main and reply briefs are not
disputed by the respondent; (10) when the findings of fact are premised
on the supposed absence of evidence and contradicted by the evidence
on record; or (11) when the Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion. NGA avers that the case
falls under the said exceptions considering that no proof was ever
presented to prove that the restroom was a nuisance per accidens.
Absent such evidence, the CA’s finding was only speculative, resulting in
a grave misapprehension of facts.

The Court agrees. A nuisance per accidens is one which depends upon
certain conditions and circumstances, and its existence being a question
of fact, it cannot be abated without due hearing thereon in a tribunal
authorized to decide whether such a thing does in law constitute a
nuisance. Obviously, it requires a determination of such circumstances
as to warrant the abatement of the nuisance. That can only be done with
reasonable notice to the person alleged to be maintaining or doing the
same of the time and place of hearing before a tribunal authorized to
decide whether such a thing or act does in law constitute a nuisance per
accidens. In other words, it requires a proper appreciation of evidence
before a court or tribunal rules that the property being maintained is a
nuisance per accidens.

WHEREFORE, the petition is PARTLY GRANTED. The March 13, 2015

Decision and the February 3, 2016 Resolution of the Court of Appeals in
C.A.-G.R. S.P. No. 131707, are REVERSED insofar as it affirmed (1)
Atty.
Morales’ entitlement to an unbridled access to the park through his side
door; and (2) the order to relocate the restroom to another area.
SO ORDERED.

Case No. 4

Emilio Gancayco vs. Quezon City,

GR. No. 177807 (J. Sereno) October 11, 2011

a. Doctrine: Nuisance; A nuisance per se is that which affects the

immediate safety of persons and property and may summarily be abated
under the undefined law of necessity.—Article 694 of the Civil Code
defines nuisance as any act, omission, establishment, business,
condition or property, or anything else that (1) injures or endangers the
health or safety of others; (2) annoys or offends the senses; (3) shocks,
defies or disregards decency or morality; (4) obstructs or interferes with
the free passage of any public highway or street, or any body of water;
or, (5) hinders or impairs the use of property. A nuisance may be per se
or per accidens. A nuisance per se is that which affects the immediate
safety of persons and property and may summarily be abated under the
undefined law of necessity.

Only courts of law have the power to determine whether a thing is a

nuisance.—Neither does the MMDA have the power to declare a thing a
nuisance. Only courts of law have the power to determine whether a
thing is a nuisance. In AC Enterprises v. Frabelle Properties Corp., 506
SCRA 625 (2006), we held: We agree with petitioner’s contention that,
under Section 447(a)(3)(i) of R.A. No. 7160, otherwise known as the
Local Government Code, the Sangguniang Panglungsod is empowered
to enact ordinances declaring, preventing or abating noise and other
forms of nuisance. It bears stressing, however, that the Sangguniang
Bayan cannot declare a particular thing as a nuisance per se and order
its condemnation. It does not have the power to find, as a fact, that a
particular thing is a nuisance when such thing is not a nuisance per se;
nor can it authorize the extrajudicial condemnation and destruction of
that as a nuisance which in its nature, situation or use is not such. Those
things must be determined and resolved in the ordinary courts of law. If a
thing be in fact, a nuisance due to the manner of its operation, that
question cannot be determined by a mere resolution of the Sangguniang
Bayan.

b. Case Title: Emilio Gancayco vs. Quezon City, GR. No. 177807 (J.
Sereno) October 11, 2011

c. Facts: In the 1950s, retired Justice Emilio A. Gancayco bought a

parcel of land located at EDSA, Quezon City.

On 27 March 1956, the Quezon City Council issued Ordinance No.

2904, entitled “An Ordinance Requiring the Construction of Arcades, for
Commercial Buildings to be Constructed in Zones Designated as
Business Zones in the Zoning Plan of Quezon City, and Providing
Penalties in Violation Thereof.”

An arcade is defined as any portion of a building above the first floor

projecting over the sidewalk beyond the first storey wall used as
protection for pedestrians against rain or sun.

Ordinance No. 2904 required the relevant property owner to construct an

arcade. No building code was passed by the national legislature thus,
regulation of construction of buildings was left at the discretion of the
LGUs.

The ordinance covered the property of Justice Gancayco. Subsequently,

sometime in 1965, Justice Gancayco sought the exemption of a two-
storey building being constructed on his property from the application of
Ordinance No. 2904 that he be exempted from constructing an arcade
on his property.

On 2 February 1966, the City Council acted favorably on Justice

Gancayco’s request and issued Resolution No. 7161, S-66, “subject to
the condition that upon notice by the City Engineer, the owner shall,
within reasonable time, demolish the enclosure of said arcade at his own
expense when public interest so demands.”6

Resolution No. 02-28, Series of 2002, released in March 2003,

authorized MMDA and LGUs to clear the sidewalks, streets, avenues,
alleys, bridges, parks and other public places in Metron Manila of all
illegal structures and obstructions.

On 28 April 2003, the MMDA sent a notice of demolition to Justice

Gancayco alleging that a portion of his building violated the National
Building Code of the Philippines (Building Code) in relation to Ordinance
No. 2904.

Justice Gancayco did not comply with the notice. Soon after the lapse of
the fifteen (15) days, the MMDA proceeded to demolish the party wall, or
what was referred to as the “wing walls,” of the ground floor structure. At
the time of the demolition, the affected portion of the building was being
used as a restaurant.
On 29 May 2003, Justice Gancayco filed a Petition with prayer for a
temporary restraining order and/or writ of preliminary injunction before
the Regional Trial Court (RTC) of Quezon City, seeking to prohibit the
MMDA and the City Government of Quezon City from demolishing his
property. In his Petition, he alleged that the ordinance authorized the
taking of private property without due process of law and just
compensation, because the construction of an arcade will require 67.5
square meters from the 375 square meter property. In addition, he
claimed that the ordinance was selective and discriminatory in its scope
and application when it allowed the owners of the buildings located in
the Quezon City-San Juan boundary to Cubao Rotonda, and Balete to
Seattle Streets to construct arcades at their option. He thus sought the
declaration of nullity of Ordinance No. 2904 and the payment of
damages.

The City Government of Quezon City claimed that the ordinance was a
valid exercise of police power, regulating the use of property in a
business zone. In addition, it pointed out that Justice Gancayco was
already barred by estoppel, laches and prescription.

Similarly, the MMDA alleged that Justice Gancayco could not seek the
nullification of an ordinance that he had already violated, and that the
ordinance enjoyed the presumption of constitutionality. It further stated
that the questioned property was a public nuisance impeding the safe
passage of pedestrians.

Regional Trial Court ruled in favor Justice Gancayco and held the
ordinance to be unconstitutional and allowed the taking of private
property for public use without just compensation; The ordinance was
confiscatory and oppressive and violated owners’ right to equal
protection of laws.

The Court of Appeals partly granted the appeal. It upheld the validity of
the Ordinance and lifted the injunction against the enforcement and
implementation of the ordinance. It held that the ordinance was a valid
exercise of the right of the local government unit to promote the general
welfare of its constituents pursuant to its police powers.

d. Issue: Whether or not the wing wall of Justice Gancayco’s building is

a public nuisance.

e. Held: The Supreme Court held in the negative. The wing walls of the
building are not nuisance per se.

The fact that in 1966 the City Council gave Justice Gancayco an
exemption from constructing an arcade is an indication that the wing
walls of the building are not nuisances per se. The wing walls do not per
se immediately and adversely affect the safety of persons and property.
The fact that an ordinance may declare a structure illegal does not
necessarily make that structure a nuisance.
Article 694 of the Civil Code defines nuisance as any act, omission,
establishment, business, condition or property, or anything else that (1)
injures or endangers the health or safety of others; (2) annoys or offends
the senses; (3) shocks, defies or disregards decency or morality; (4)
obstructs or interferes with the free passage of any public highway or
street, or any body of water; or, (5) hinders or impairs the use of
property. A nuisance may be per se or per accidens. A nuisance per se is
that which affects the immediate safety of persons and property and may
summarily be abated under the undefined law of necessity.

Clearly, when Justice Gancayco was given a permit to construct the

building, the city council or the city engineer did not consider the
building, or its demolished portion, to be a threat to the safety of persons
and property. This fact alone should have warned the MMDA against
summarily demolishing the structure.

Only courts of law have the power to determine whether a thing is a

nuisance. In AC Enterprises v. Frabelle Properties Corp., we held:

“We agree with petitioner’s contention that, under Section 447(a)(3)(i) of

R.A. No. 7160, otherwise known as the Local Government Code, the
Sangguniang Panglungsod is empowered to enact ordinances declaring,
preventing or abating noise and other forms of nuisance. It bears
stressing, however, that the Sangguniang Bayan cannot declare a
particular thing as a nuisance per se and order its condemnation. It does
not have the power to find, as a fact, that a particular thing is a nuisance
when such thing is not a nuisance per se; nor can it authorize the
extrajudicial condemnation and destruction of that as a nuisance which
in its nature, situation or use is not such. Those things must be
determined and resolved in the ordinary courts of law. If a thing be in
fact, a nuisance due to the manner of its operation, that question cannot
be determined by a mere resolution of the Sangguniang Bayan.” MMDA
illegally demolished the property of Justice Gancayco.

The Building Code clearly provides the process by which a building may
be demolished. The authority to order the demolition of any structure lies
with the Building Official. The pertinent provisions of the Building Code
provide:
“SECTION 205. Building Officials.—Except as otherwise provided
herein, the Building Official shall be responsible for carrying out the
provisions of this Code in the field as well as the enforcement of orders
and decisions made pursuant thereto.

Due to the exigencies of the service, the Secretary may designate

incumbent Public Works District Engineers, City Engineers and
Municipal Engineers act as Building Officials in their respective areas of
jurisdiction. The designation made by the Secretary under this Section
shall continue until regular positions of Building Official are provided or
unless sooner terminated for causes provided by law or decree.

When any building work is found to be contrary to the provisions of this

Code, the Building Official may order the work stopped and prescribe the
terms and/or conditions when the work will be allowed to resume.
Likewise, the Building Official is authorized to order the discontinuance
of the occupancy or use of any building or structure or portion thereof
found to be occupied or used contrary to the provisions of this Code.

SECTION 215. Abatement of Dangerous Buildings.—When any

building or structure is found or declared to be dangerous or ruinous, the
Building Official shall order its repair, vacation or demolition depending
upon the degree of danger to life, health, or safety. This is without
prejudice to further action that may be taken under the provisions of
Articles 482 and 694 to 707 of the Civil Code of the Philippines.”

MMDA v. Trackworks Rail Transit Advertising, Vending and Promotions,

Inc. is applicable to the case at bar. In that case, MMDA, invoking its
charter and the Building Code, summarily dismantled the advertising
media installed on the Metro Rail Transit (MRT) 3. This Court held:
“It is futile for MMDA to simply invoke its legal mandate to justify the
dismantling of Trackworks’ billboards, signages and other advertising
media. MMDA simply had no power on its own to dismantle, remove, or
destroy the billboards, signages and other advertising media installed on
the MRT3 structure by Trackworks. In Metropolitan Manila Development
Authority v. Bel-Air Village Association, Inc., Metropolitan Manila
Development Authority v. Viron Transportation Co., Inc., and
Metropolitan Manila Development Authority v. Garin, the Court had the
occasion to rule that MMDA’s powers were limited to the formulation,
coordination, regulation, implementation, preparation, management,
monitoring, setting of policies, installing a system, and administration.
Nothing in Republic Act No. 7924 granted MMDA police power, let alone
legislative power.

There is also no evidence showing that MMDA had been delegated by

DPWH to implement the Building Code.

Additionally, the penalty prescribed by Ordinance No. 2904 itself does

not include the demolition of illegally constructed buildings in case of
violations. Instead, it merely prescribes a punishment of “a fine of not
more than two hundred pesos (P200.00) or by imprisonment of not more
than thirty (30) days, or by both such fine and imprisonment at the
discretion of the Court, Provided, that if the violation is committed by a
corporation, partnership, or any juridical entity, the Manager, managing
partner, or any person charged with the management thereof shall be
held responsible therefor.” The ordinance itself also clearly states that it
is the regular courts that will determine whether there was a violation of
the ordinance.
As pointed out in Trackworks, the MMDA does not have the power to
enact ordinances. Thus, it cannot supplement the provisions of Quezon
City Ordinance No. 2904 merely through its Resolution No. 02-28.

WHEREFORE, in view of the foregoing, the Decision of the Court of

Appeals in CA-G.R. SP No. 84648 is AFFIRMED.

SO ORDERED.

Case No. 5.
Jaime S. Perez vs. Spouses Fortunito Madrona,
GR. No. 184478 (J. Coruna) March 21, 2012

a. Doctrine: The storage of copra in the quonset building is a legitimate

business. By its nature, it cannot be said to be injurious to rights of
property, of health or of comfort of the community. If it be a nuisance per
accidens it may be so proven in a hearing conducted for that purpose. It
is not per se a nuisance warranting its summary abatement without
judicial intervention.

b. Case Title: Jaime S. Perez vs. Spouses Fortunito Madrona, GR. No.
184478 (J. Coruna) March 21, 2012

c. Facts: respondents received the following letter dated May 25, 1999
from petitioner Jaime S. Perez, Chief of the Marikina Demolition Office:...
respondent Madrona sent petitioner a three-page letter[6] dated June 8,
1999 stating that the May 25, 1999 letter (1) contained an accusation
libelous in nature as it is condemning him and his property without due
process; (2) has no basis and... authority since there is no court order
authorizing him to demolish their structure; (3) cited legal bases which
do not expressly give petitioner authority to demolish; and (4) contained
a false accusation since their fence did not in fact extend to the
sidewalk.

More than a year later or on February 28, 2001, petitioner sent another
letter.

This prompted respondents to file a complaint for injunction before the

Marikina City RTC on March 12, 2001.

1. petitioner's letters made it appear that their fence was encroaching

on the sidewalk and directed them to remove it, otherwise he
would take the corresponding action; (2) petitioner's threat of
action would be damaging... and adverse to respondents and
appears real, earnest and imminent; (3) the removal of their fence,
which would include the main gate, would certainly expose the
premises and its occupants to intruders or third persons; (4)
petitioner has no legal authority to demolish structures... in private
properties and the laws he cited in his letters do not give him any
authority to do so; (5) respondents enjoy the legal presumption of
rightful possession of every inch of their property; (6) if petitioner
accuses them of erroneous possession, he should so prove only...
through the proper forum which is the courts; (7) their fence is
beside the sidewalk and the land on which it stands has never
been the subject of acquisition either by negotiation or
expropriation from the government; (8) petitioner's intended act of
demolition even in the... guise of a road right of way has no factual
or legal basis since there is no existing infrastructure project of the
 national government or Marikina City government; and (9)
petitioner's letter and his intended act of demolition are malicious,
unfounded, meant only to... harass respondents in gross violation
of their rights and in excess and outside the scope of his authority,
thereby rendering him accountable both in his personal and official
capacity.

Respondents likewise sought the issuance of a temporary restraining

order (TRO) and a writ of preliminary injunction to enjoin petitioner and
all persons.

RTC issued a TRO against petitioner... petitioner was declared in default

on July 13, 2001.

RTC issued an Order denying the motion to lift the order of default.

Petitioner thereafter filed a petition for certiorari before the CA assailing

the default order.

CA rendered a decision dismissing the petition for certiorari for lack of

merit. Petitioner moved to reconsider the appellate court's decision, but
the motion was denied by Resolution... the RTC rendered a Decision in
favor of respondents.

The RTC also ruled that there is no showing that respondents' fence is a
nuisance per se and presents an immediate danger to the community's
welfare, nor is there basis for... petitioner's claim that the fence has
encroached on the sidewalk as to justify its summary demolition... the
appellate court rendered the assailed decision affirming the RTC
decision.

d. Issues: Respondent-spouses Fortunito Madrona and Yolanda B.

Pante are registered owners of a residential property located in Lot 22,
Block 5, France Street corner Italy Street, Greenheights Subdivision,
Phase II, Marikina City and covered by Transfer Certificate of Title No.
169365 of the Registry of Deeds of Marikina. In 1989, respondents built
their house thereon and enclosed it with a concrete fence and steel gate.

1. Did the trial court err in reinstating the complaint of respondents?

(2) Are the requisites for the issuance of a writ of injunction
present? and (3) Is petitioner liable to pay attorney's fees and
costs of... suit?

Held: Petitioner contends that service of a mere notice cannot be

construed as an invasion of a right and only presupposes the... giving of
an opportunity to be heard before any action could be taken.

For injunction to issue, two requisites must concur: first, there must be a
right to be protected and second, the acts against which the injunction is
to be directed are violative of said right. Here, the two requisites are
clearly present: there... is a right to be protected, that is, respondents'
right over their concrete fence which cannot be removed without due
process; and the act, the summary demolition of the concrete fence,
against which the injunction is directed, would violate said right.

Respondents’ fence is not a nuisance per se. By its nature, it is not

injurious to the health or comfort of the community. It was built primarily
to secure the property of respondents and prevent intruders from
entering it. And as correctly pointed out by respondents, the sidewalk still
exists. If petitioner believes that respondents’ fence indeed encroaches
on the sidewalk, it may be so proven in a hearing conducted for that
purpose. Not being a nuisance per se, but at most a nuisance per
accidens, its summary abatement without judicial intervention is
unwarranted.

WHEREFORE, the March 31, 2008 Decision and September 10, 2008
Resolution of the Court of Appeals in CA-G.R. CV. No. 83675 are
AFFIRMED with MODIFICATION. Petitioner Jaime S. Perez, Chief of the
Demolition Office of Marikina City is ORDERED to pay respondent
Spouses Fortunito L. Madrona and Yolanda B. Pante moral damages in
the amount of ₱10,000.00 and exemplary damages in the amount of
₱5,000.00.

SO ORDERED.