Cases 6th Batch

8/11/2019 Cases 6th Batch

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G.R. No. 90596 April 8, 1991

SOLID MANILA CORPORATION, petitioner,vs.BIO HONG TRADING CO., INC. and COURT OF APPEALS, respondents.

Balgos &

Perezfor petitioner.

Alfredo G. de Guzman for private respondent.

SARMIENTO, J.:p

This is an appeal filed by way of a petition for review on certiorariunder Rule 45 of the Rules of

Court.

The petitioner raises two questions: (1) whether or not the Court of Appeals 1erred in reversing thetrial court which had rendered summary judgment; and (2) whether or not it erred in holding that aneasement had been extinguished by merger.

We rule for the petitioner on both counts.

It appears that the petitioner is the owner of a parcel of land located in Ermita, Manila, covered byTransfer Certificate of Title No. 157750 of the Register of Deeds of Manila. The same lies in thevicinity of another parcel, registered in the name of the private respondent corporation underTransfer Certificate of Title No. 128784.

The private respondent's title came from a prior owner, and in their deed of sale, the parties theretoreserved as an easement of way:

. . .a portion thereof measuring NINE HUNDRED FOURTEEN SQUARE METERS,more or less, had been converted into a private alley for the benefit of neighboringestates, this being duly annotated at the back of the covering transfer Certificate oftitle per regulations of the Office of the City Engineer of Manila and that the threemeterwide portion of said parcel along the Pasig River, with an area of ONEHUNDRED SEVENTY NINE (179) SQUARE METERS, more or less, had actuallybeen expropriated by the City Government, and developed pursuant to thebeautification drive of the Metro Manila Governor. (p. 3, Record). 2

As a consequence, an annotation was entered in the private respondent's title, as follows:

Entry No. 7712/T-5000CONSTRUCTION OF PRIVATE ALLEYIt is herebymade of record that a construction of private alley has been undertaken on the lotcovered by this title from Concepcion Street to the interior of the aforesaid propertywith the plan and specification duly approved by the City Engineer subject to thefollowing conditions to wit: (1) That the private alley shall be at least three (3) metersin width; (2) That the alley shall not be closed so long as there's a building exists


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thereon (sic); (3) That the alley shall be open to the sky; (4) That the owner of the loton which this private alley has been constituted shall construct the said alley andprovide same with concrete canals as per specification of the City Engineer; (5) Thatthe maintenance and upkeep of the alley shall be at the expense of the registeredowner; (6) That the alley shall remain open at all times, and no obstructionswhatsoever shall be placed thereon; (7) That the owner of the lot on which the alley

has been constructed shall allow the public to use the same, and allow the City to laypipes for sewer and drainage purposes, and shall not act (sic) for any indemnity forthe use thereof; and (8) That he shall impose upon the vendee or new owner of theproperty the conditions abovementioned; other conditions set forth in Doc. No. 4236,Page No. 11, Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila. 3

The petitioner claims that ever since, it had (as well as other residents of neighboring estates) madeuse of the above private alley and maintained and contributed to its upkeep, until sometime in 1983,when, and over its protests, the private respondent constructed steel gates that precludedunhampered use.

On December 6, 1984, the petitioner commenced suit for injunction against the private respondent,to have the gates removed and to allow full access to the easement.

The court a quo shortly issued ex parte an order directing the private respondent to open the gates.Subsequently, the latter moved to have the order lifted, on the grounds that: (1) the easementreferred to has been extinguished by merger in the same person of the dominant and servientestates upon the purchase of the property from its former owner; (2) the petitioner has anotheradequate outlet; (3) the petitioner has not paid any indemnity therefor; and (4) the petitioner has notshown that the right-of-way lies at the point least prejudicial to the servient estate.

The private respondent's opposition notwithstanding, the trial court issued a "temporary writ ofpreliminary injunction to continue up to the final termination of the case upon its merits upon theposting of a P5,000.00 bond by the plaintiff. 4(the petitioner herein).

Thereafter, the respondent corporation answered and reiterated its above defenses.

On April 15, 1986, the petitioner moved for summary judgment and the court a quo ruled on thesame as follows:

In view of the foregoing, this Court finds it unnecessary to try this case on the merit (sic) and herebyresolve (sic) to grant the plaintiffs motion for summary judgment. (pp. 15-107, Record). 5

On January 19, 1987, the trial court rendered judgment against the private respondent, thedispositive portion of which states:

WHEREFORE, judgment is hereby rendered making permanent the temporary

mandatory injunction, that had been issued against the defendant, and for thedefendant to pay the plaintiff the costs of this suit.

The defendant's counterclaim against the plaintiff is hereby dismissed, for lack ofmerit. (Summary Judgment, p. 6).6

The private respondent appealed to the respondent Court of Appeals.


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Meanwhile, the private respondent itself went to the Regional Trial Court on a petition for thecancellation of the annotation in question. The court granted cancellation, for which the petitionerinstituted CA-G.R. SP No. 13421 of the respondent Court of Appeals which ordered the restorationof the annotation "without prejudice [to] the final outcome of 7the private respondent's own appeal(subject of this petition).

In reversing the trial court which had, as earlier mentioned, rendered summary judgment, therespondent Court of Appeals held that the summary judgment was improper and that the lower courterroneously ignored the defense set up by the private respondent that the easement in question hadbeen extinguished. According to the Appellate Court, an easement is a mere limitation on ownershipand that it does not impair the private respondent's title, and that since the private respondent hadacquired title to the property, "merger" brought about an extinguishment of the easement.

The petitioner submits that the respondent Court of Appeals erred, because the very deed of saleexecuted between the private respondent and the previous owner of the property "excluded" thealley in question, and that in any event, the intent of the parties was to retain the "alley" as aneasement notwithstanding the sale.

As already stated at the outset, the Court finds merit in the petition.

There is no question that an easement, as described in the deed of sale executed between theprivate respondent and the seller, had been constituted on the private respondent's property, andhas been in fact annotated at the back of Transfer Certificate of Title No. 128784. Specifically, thesame charged the private respondent as follows: "(6) That the alley shall remain open at all times,and no obstructions whatsoever shall be placed thereon; (7) That the owner of the lot on which thealley has been constructed shall allow the public to use the same, and allow the City to lay pipes forsewer and drainage purposes, and shall not [ask] for any indemnity for the use thereof. . ." 8Its act,therefore, of erecting steel gates across the alley was in defiance of these conditions and a violation ofthe deed of sale, and, of course, the servitude of way.

The Court then is of the opinion that injunction was and is proper and in denying injunctive relief on

appeal, the respondent Appellate Court committed an error of judgment and law.

It is hardly the point, as the Court of Appeals held, that the private respondent is the owner of theportion on which the right-of-way had been established and that an easement can not impairownership. The petitioner is not claiming the easement or any part of the property as its own, butrather, it is seeking to have the private respondent respect the easement already existing thereon.The petitioner is moreover agreed that the private respondent has ownership, but that nonetheless, ithas failed to observe the limitation or encumbrance imposed on the same

There is therefore no question as to ownership. The question is whether or not an easement existson the property, and as we indicated, we are convinced that an easement exists.

It is true that the sale did include the alley. On this score, the Court rejects the petitioner's contentionthat the deed of sale "excluded" it, because as a mere right-of-way, it can not be separated from thetenement and maintain an independent existence. Thus:

Art. 617. Easements are inseparable from the estate to which they actively orpassively belong. 9


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Servitudes are merely accessories to the tenements of which they form part. 10Although they arepossessed of a separate juridical existence, as mere accessories, they can not, however, bealienated 11from the tenement, or mortgaged separately. 12

The fact, however, that the alley in question, as an easement, is inseparable from the main lot is noargument to defeat the petitioner's claims, because as an easement precisely, it operates as a

limitation on the title of the owner of the servient estate, specifically, his right to use (jus utendi).

As the petitioner indeed hastens to point out, the deed itself stipulated that "a portion thereof [of thetenement] measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had beenconverted into a private alley for the benefit of the neighboring estates. . ." 13and precisely, the formerowner, in conveying the property, gave the private owner a discount on account of the easement, thus:

WHEREAS, to compensate for the foregoing, the parties hereto agreed to adjust thepurchase price from THREE MILLION SEVEN HUNDRED NINETY THOUSANDFOUR HUNDRED FORTY PESOS (P3,790,440.) to THREE MILLION FIVEHUNDRED THREE THOUSAND TWO HUNDRED FORTY PESOS(P3,503,240.00) 14

Hence, and so we reiterate, albeit the private respondent did acquire ownership over the propertyincluding the disputed alleyas a result of the conveyance, it did not acquire the right to close thatalley or otherwise put up obstructions thereon and thus prevent the public from using it, because asa servitude, the alley is supposed to be open to the public.

The Court is furthermore of the opinion, contrary to that of the Court of Appeals, that no genuinemerger took place as a consequence of the sale in favor of the private respondent corporation.

According to the Civil Code, a merger exists when ownership of the dominant and servient estates isconsolidated in the same person. 15Merger then, as can be seen, requires full ownership of bothestates.

One thing ought to be noted here, however. The servitude in question is a personal servitude, that is

to say, one constituted not in favor of a particular tenement (a real servitude) but rather, for thebenefit of the general public.

Personal servitudes are referred to in the following article of the Civil Code:

Art. 614. Servitudes may also be established for the benefit of a community, or ofone or more persons to whom the encumbered estate does not belong. 16

In a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and theeasement pertains to persons without a dominant estate, 17in this case, the public at large.

Merger, as we said, presupposes the existence of a prior servient-dominant owner relationship, and

the termination of that relation leaves the easement of no use. Unless the owner conveys theproperty in favor of the publicif that is possibleno genuine merger can take place that wouldterminate a personal easement.

For this reason, the trial court was not in error in rendering summary judgment, and insofar as therespondent Court of Appeals held that it (the trial court) was in error, the Court of Appeals is in error.


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Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issueas to the existence of a material fact, and the facts appear undisputed based on the pleadings,depositions, admissions, and affidavits of record. 18In one case, this Court upheld a decision of the trialcourt rendered by summary judgment on a claim for money to which the defendant interposed thedefense of payment but which failed to produce receipts. 19We held that under the circumstances, thedefense was not genuine but rather, sham, and which justified a summary judgment. In another case, we

rejected the claim of acquisitive prescription over registered property and found it likewise to be sham,and sustained consequently, a summary judgment rendered because the title challenged was covered bya Torrens Certificate and under the law, Torrens titles are imprescriptible. 20

We also denied reconveyance in one case and approved a summary judgment rendered thereon, onthe ground that from the records, the plaintiffs were clearly guilty of laches having failed to act untilafter twenty-sevenyears. 21We likewise allowed summary judgment and rejected contentions of economic hardship as anexcuse for avoiding payment under a contract for the reason that the contract imposed liability under anyand all conditions. 22

In the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a sham one,because as we said, merger is not possible, and secondly, the sale unequivocally preserved the

existing easement. In other words, the answer does not, in reality, tender any genuine issue on amaterial fact and can not militate against the petitioner's clear cause of action.

As this Court has held, summary judgments are meant to rid a proceeding of the ritual of a trialwhere, from existing records, 23the facts have been established, and trial would be futile.

What indeed, argues against the posturing of the private respondentand consequently, thechallenged holding of the respondent Court of Appeals as wellis the fact that the Court of

Appeals itself had rendered judgment, in its CA-G.R. No. 13421, entitled Solid Manila Corporationv.Ysrael, in which it nullified the cancellation of the easement annotated at the back of the privaterespondent's certificate of title ordered by Judge Ysrael in LRC Case No. 273. As the petitioner nowin fact insists, the Court of Appeals' judgment, which was affirmed by this Court in its Resolution

dated December 14, 1988, in G.R. No. 83540, is at least, the law of the case between the parties, as"law of the case" is known in law, e.g.:

xxx xxx xxx

Law of the case has been defined as the opinion delivered on a former appeal. Morespecifically, it means that whatever is once irrevocably established as the controllinglegal rule of decision between the same parties in the same case continues to be thelaw of the case, whether correct on general principles or not, so long as the facts onwhich such decision was predicated continue to be the facts of the case before thecourt. (21 C.J.S. 330) (Emphasis supplied).

It may be stated as a rule of general application that, where the evidence on asecond or succeeding appeal is substantially the same as that on the first orpreceding appeal, all matters, questions, points, or issues adjudicated on the priorappeal are the law of the case on all subsequent appeals and will not be consideredor readjudicated therein. (5 C.J.S. 1267) (Emphasis supplied.)

In accordance with the general rule stated in Section 1821, where, after a definitedetermination, the court has remanded the cause for further action below, it willrefuse to examine question other than those arising subsequently to such


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determination and remand, or other than the propriety of the compliance with itsmandate; and if the court below has proceeded in substantial conformity to thedirections of the appellate court, its action will not be questioned on a second appeal.

As a general rule a decision on a prior appeal of the same case is held to be the lawof the case whether that decision is right or wrong, the remedy of the party deeming

himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77). (Emphasissupplied.)

Questions necessarily involved in the decision on a former appeal will be regardedas the law of the case on a subsequent appeal, although the questions are notexpressly treated in the opinion of the court, as the presumption is that all the facts inthe case bearing on the point decided have received due consideration whether all ornone of them are mentioned in the opinion. (5 C.J.S. 1286-87). (Emphasissupplied.) 24

CA-G.R. No. 13421 is the law of the case because clearly, it was brought to determine the rights ofthe parties regarding the easement, subject of the controversy in this case, although as a petition for

"cancellation of annotation" it may have, at a glance, suggested a different cause of action.

And for reasons of fair play, the private respondent can not validly reject CA-G.R. No. 13421 as thelaw of the case, after all, it was the one that initiated the cancellation proceedings with the RegionalTrial Court in LRC No. 273 that precipitated that appeal. In the second place, the proceedings forcancellation of annotation was in fact meant to preempt the injunction decreed by the lower court inthis case. Plainly and simply, the private respondent is guilty of forum-shopping, as we havedescribed the term:

xxx xxx xxx

There is forum-shopping whenever, as a result of an adverse opinion in one forum, aparty seeks a favorable opinion (other than by appeal or certiorari) in another. Theprinciple applies not only with respect to suits filed in the courts but also inconnection with litigations commenced in the courts while an administrativeproceeding is pending, as in this case, in order to defeat administrative processesand in anticipation of an unfavorable administrative ruling and a favorable courtruling. This is specially so, as in this case, where the court in which the second suitwas brought, has no jurisdiction. 25

to which contempt is a penalty. 26

As it happened, in its effort to shop for a friendly forum, the private respondent found an unfriendlycourt and it can not be made to profit from its act of malpractice by permitting it to downgrade itsfinality and deny its applicability as the law of the case.

As a personal servitude, the right-of-way in question was established by the will of the owner.

In the interesting case of North Negros Sugar Co.,Inc.v.Hidalgo, 27this Court, speaking throughJustice Claro Recto, declared that a personal servitude (also a right of way in that case) is established bythe mere "act" 28of the landowner, and is not "contractual in the nature," 29and a third party (as thepetitioner herein is a third party) has the personality to claim its benefits. In his separate opinion, however,Justice Jose Laurel maintained that a personal or voluntary servitude does require a contract and that


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"[t]he act of the plaintiff in opening the private way here involved did not constitute an offer . . . " 30and"[t]here being no offer, there could be no acceptance; hence no contract." 31

The Court sees no need to relive the animated exchanges between two legal titans (they wouldcontend even more spiritedly in the "larger" world of politics) to whom present scholars perhaps owetheir erudition and who, because of the paths they have taken, have shaped history itself; after all,

and coming back to the case at bar, it is not disputed that an easement has been constituted,whereas it was disputed in North Negros' case. Rather, the question is whether it is still existing orwhether it has been extinguished. As we held, our findings is that it is in existence and as aconsequence, the private respondent can not bar the public, by erecting an obstruction on the alley,from its use.

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is SET ASIDE andthe decision of the Regional Trial Court is hereby REINSTATED. The petitioner and its counsel arehereby required to SHOW CAUSE why they should not be punished for contempt of court, and alsoadministratively dealt with in the case of counsel, for forum shopping.

IT IS SO ORDERED.

G.R. No. 124699 July 31, 2003


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BOGO-MEDELLIN MILLING CO., INC., Petitioner,vs.COURT OF APPEALS AND HEIRS OF MAGDALENO VALDEZ SR., Respondents.

D E C I S I O N

CORONA, J.:

This is an appeal by certiorariunder Rule 45 of the Rules of Court seeking to annul and set aside thedecision1dated November 17, 1995 of the Court of Appeals, Tenth Division, which reversed thedecision2dated November 27, 1991 of the Regional Trial Court of Cebu City, Branch IX, which ruledin favor of herein petitioner, Bogo-Medellin Milling Company, Inc. and dismissed herein privaterespondents' complaint for payment of compensation and/or recovery of possession of real propertyand damages with application for restraining order or preliminary injunction; and its resolution datedMarch 2, 1996 denying petitioner's motion for reconsideration.

The antecedent facts follow.

Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez, Angelina Valdez-Novabos, Teresita Argawanon-Mangubat and Daylinda Argawanon-Melendres (hereafter the heirs),purchased from Feliciana Santillan, on December 9, 1935, a parcel of unregistered land covered byTax Declaration No. 3935 with an area of one hectare, 34 ares and 16 centares, located in BarrioDayhagon, Medellin, Cebu.3He took possession of the property and declared it for tax purposes inhis name.4

Prior to the sale, however, the entire length of the land from north to south was already traversed inthe middle by railroad tracks owned by petitioner Bogo-Medellin Milling Co., Inc. (hereafterBomedco). The tracks were used for hauling sugar cane from the fields to petitioners sugar mill.

When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents inherited the land.

However, unknown to them, Bomedco was able to have the disputed middle lot which was occupiedby the railroad tracks placed in its name in the Cadastral Survey of Medellin, Cebu in 1965. Theentire subject land was divided into three, namely, Cadastral Lot Nos. 953, 954 and 955. Lot Nos.953 and 955 remained in the name of private respondents. However, Lot No. 954, the narrow lotwhere the railroad tracks lay, was claimed by Bomedco as its own and was declared for taxpurposes in its name.5

It was not until 1989 when private respondents discovered the aforementioned claim of Bomedco oninquiry with the Bureau of Lands. Through their lawyer, they immediately demanded the legal basisfor Bomedco's claim over Cadastral Lot No. 954 but their letter of inquiry addressed to petitionerwent unheeded, as was their subsequent demand for payment of compensation for the use of theland.6

On June 8, 1989, respondent heirs filed a "Complaint for Payment of Compensation and/orRecovery of Possession of Real Property and Damages with Application for RestrainingOrder/Preliminary Injunction" against Bomedco before the Regional Trial Court ofCebu.7Respondent heirs alleged that, before she sold the land to Valdez, Sr. in 1935, Santillangranted Bomedco, in 1929, a railroad right of way for a period of 30 years. When Valdez, Sr.acquired the land, he respected the grant. The right of way expired sometime in 1959 butrespondent heirs allowed Bomedco to continue using the land because one of them was then anemployee of the company.8
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In support of the complaint, they presented an ancient document an original copy of the deed ofsale written in Spanish and dated December 9, 19359 to evidence the sale of the land toMagdaleno Valdez, Sr.; several original real estate tax receipts10including Real Property TaxReceipt No. 393511dated 1922 in the name of Graciano de los Reyes, husband of FelicianaSantillan, and Real Property Tax Receipt No. 0949112dated 1963 in the name of Magdaleno Valdez,Sr. Magdaleno Valdez, Jr. also testified for the plaintiffs during the trial.

On the other hand, Bomedcos principal defense was that it was the owner and possessor ofCadastral Lot No. 954, having allegedly bought the same from Feliciana Santillan in 1929, prior tothe sale of the property by the latter to Magdaleno Valdez, Sr. in 1935. It also contended thatplaintiffs claim was already barred by prescription and laches because of Bomedcos open andcontinuous possession of the property for more than 50 years.

Bomedco submitted in evidence a Deed of Sale13dated March 18, 1929; seven real estate taxreceipts14for the property covering the period from 1930 to 1985; a 1929 Survey Plan of private landfor Bogo-Medellin Milling Company;15a Survey Notification Card;16Lot Data Computation for Lot No.954;17a Cadastral Map for Medellin Cadastre18as well as the testimonies of Vicente Basmayor,Geodetic Engineer and property custodian for Bomedco, and Rafaela A. Belleza, Geodetic Engineerand Chief of the Land Management Services of the DENR, Region VIII.

In its decision dated November 27, 1991, the trial court19rejected Bomedco's defense of ownershipon the basis of a prior sale, citing that its evidencea xerox copy of the Deed of Sale dated March18, 1929was inadmissible and had no probative value. Not only was it not signed by the partiesbut defendant Bomedco also failed to present the original copy without valid reason pursuant toSection 4, Rule 130 of the Rules of Court.20

Nonetheless, the trial court held that Bomedco had been in possession of Cadastral Lot No. 954 ingood faith for more than 10 years, thus, it had already acquired ownership of the property throughacquisitive prescription under Article 620 of the Civil Code. It explained:

Under Article 620 of the Civil Code, CONTINUOUS and APPARENT easements can be acquired by

prescription after ten (10) years. The "apparent" characteristic of the questioned property being usedby defendant as an easement is no longer at issue, because plaintiffs themselves hadacknowledged that the existence of the railway tracks of defendant Bomedco was already known bythe late Magdaleno Valdez, herein plaintiffs predecessor-in-interest, before the late MagdalenoValdez purchased in 1935 from the late Feliciana Santillan the land described in the Complaintwhere defendants railway tracks is traversing [sic] (TSN of February 5, 1991, pp. 7-8). As to thecontinuity of defendants use of the strip of land as easement is [sic] also manifest from thecontinuous and uninterrupted occupation of the questioned property from 1929 up to the date of thefiling of the instant Complaint. In view of the defendants UNINTERRUPTED po ssession of the stripof land for more than fifity (50) years, the Supreme Courts ruling in the case of Ronquillo, et al. v.Roco, et al. (103 Phil 84) is not applicable. This is because in said case the easement in questionwas a strip of dirt road whose possession by the dominant estate occurs only everytime said dirt

road was being used by the dominant estate. Such fact would necessarily show that the easementspossession by the dominant estate was never continuous. In the instant case however, there is clearcontinuity of defendants possession of the strip of land it had been using as railway tracks. Becausethe railway tracks which defendant had constructed on the questioned strip of land had beenCONTINUOUSLY occupying said easement. Thus, defendant Bomedcos apparent and continuouspossession of said strip of land in good faith for more than ten (10) years had made defendant ownerof said strip of land traversed by its railway tracks. Because the railway tracks which defendant hadconstructed on the questioned strip of land had been continuously occupying said easement [sic].Thus, defendant Bomedcos apparent and continuous possession of said strip of land in good faith
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for more than ten (10) years had made defendant owner of said strip of land traversed by its railwaytracks.

Respondent heirs elevated the case to the Court of Appeals which found that Bomedco did notacquire ownership over the lot. It consequently reversed the trial court. In its decision datedNovember 17, 1995, the appellate court held that Bomedco only acquired an easement of right of

way by unopposed and continuous use of the land, but not ownership, under Article 620 of the CivilCode.

The appellate court further ruled that Bomedcos claim of a prior sale to it by Feliciana Santi llan wasuntrue. Its possession being in bad faith, the applicable prescriptive period in order to acquireownership over the land was 30 years under Article 1137 of the Civil Code. Adverse possession ofthe property started only in 1965 when Bomedco registered its claim in the cadastral survey ofMedellin. Since only 24 years from 1965 had elapsed when the heirs filed a complaint againstBomedco in 1989, Bomedcos possession of the land had not yet ripened into ownership.

And since there was no showing that respondent heirs or their predecessor-in-interest was ever paidcompensation for the use of the land, the appellate court awarded compensation to them, to be

computed from the time of discovery of the adverse acts of Bomedco.

Its motion for reconsideration having been denied by the appellate court in its resolution dated March22, 1996, Bomedco now interposes before us this present appeal by certiorari under Rule 45,assigning the following errors:

I

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REVERSEDAND SET ASIDE THE TRIAL COURTS DECISION DISMISSING PRIVATERESPONDENTS COMPLAINT.

II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT ORDEREDTHE PETITIONER TO PAY THE PRIVATE RESPONDENT THE REASONABLE VALUE OFLOT 954 AND THE AMOUNT OF TEN THOUSAND (P10,000.00) PESOS ASREASONABLE ATTORNEYS FEES.

Petitioner Bomedco reiterates its claim of ownership of the land throughextraordinary acquisitiveprescriptionunder Article 1137 of the Civil Code and lachesto defeat the claim for compensation orrecovery of possession by respondent heirs. It also submits a third ground originally tendered by thetrial court acquisition of the easement of right of way by prescriptionunder Article 620 of the CivilCode.

Extraordinary Acquisitive PrescriptionUnder Art. 1137 of the Civil Code

Petitioners claim of ownership through extraordinary acquisitive prescription under Article 1137 ofthe Civil Code cannot be sustained.

There is no dispute that the controversial strip of land has been in the continuous possession ofpetitioner since 1929. But possession, to constitute the foundation of a prescriptive right, must be


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possession under a claim of title, that is, it must be adverse.21Unless coupled with the element ofhostility towards the true owner, possession, however long, will not confer title by prescription.22

After a careful review of the records, we are inclined to believe the version of respondent heirs thatan easement of right of way was actually granted to petitioner for which reason the latter was able tooccupy Cadastral Lot No. 954. We cannot disregard the fact that, for the years 1930, 1937, 1949,

1962 and 1963, petitioner unequivocally declared the property to be a "central railroad right of way"or "sugar central railroad right of way" in its real estate tax receipts when it could have declared it tobe "industrial land" as it did for the years 1975 and 1985.23Instead of indicatingownershipof the lot,these receipts showed that all petitioner had waspossessionby virtue of the right of way granted toit. Were it not so and petitioner really owned the land, petitioner would not have consistently usedthe phrases "central railroad right of way" and "sugar central railroad right of way" in its taxdeclarations until 1963. Certainly an owner would have found no need for these phrases. A personcannot have an easement on his own land, since all the uses of an easement are fullycomprehended in his general right of ownership.24

While it is true that, together with a persons actual and adverse possession of the land, taxdeclarations constitute strong evidence of ownership of the land occupied by him,25this legal preceptdoes not apply in cases where the property is declared to be a mere easement of right of way.

An easement or servitude is a real right, constituted on the corporeal immovable property of another,by virtue of which the owner has to refrain from doing, or must allow someone to do, something onhis property, for the benefit of another thing or person. It exists only when the servient and dominantestates belong to two different owners. It gives the holder of the easement an incorporeal interest onthe land but grants no title thereto. Therefore, an acknowledgment of the easement is an admissionthat the property belongs to another.26

Having held the property by virtue of an easement, petitioner cannot now assert that its occupancysince 1929 was in the concept of an owner. Neither can it declare that the 30-year period ofextraordinary acquisitive prescription started from that year.

Petitioner, however, maintains that even if a servitude was merely imposed on the property in itsfavor, its possession immediately became adverse to the owner in the late 1950s when the grantwas alleged by respondent heirs to have expired. It stresses that, counting from the late 1950s(1959 as found by the trial court), the 30-year extraordinary acquisitive prescription had already setin by the time respondent heirs made a claim against it in their letters dated March 1 and April 6,1989.

We do not think so. The mere expiration of the period of easement in 1959 did not convertpetitioners possession into an adverse one. Mere material possession of land is not adversepossession as against the owner and is insufficient to vest title, unless such possession isaccompanied by the intent to possess as an owner.27There should be a hostile use of such a natureand exercised under such circumstances as to manifest and give notice that the possession is under

a claim of right.

In the absence of an express grant by the owner, or conduct by petitioner sugar mill from which anadverse claim can be implied, its possession of the lot can only be presumed to have continued inthe same character as when it was acquired (that is, it possessed the land only by virtue of theoriginal grant of the easement of right of way),28or was by mere license or tolerance of the owners(respondent heirs).29It is a fundamental principle of law in this jurisdiction that acts of possessorycharacter executed by virtue of license or tolerance of the owner, no matter how long, do not startthe running of the period of prescription.30
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After the grant of easement expired in 1959, petitioner never performed any act incompatible withthe ownership of respondent heirs over Cadastral Lot No. 954. On the contrary, until 1963, petitionercontinued to declare the "sugar central railroad right of way" in its realty tax receipts, therebydoubtlessly conceding the ownership of respondent heirs. Respondents themselves were emphaticthat they simply tolerated petitioners continued use of Cadas tral Lot No. 954 so as not to jeopardizethe employment of one of their co-heirs in the sugar mill of petitioner.31

The only time petitioner assumed a legal position adverse to respondents waswhen it filed a claimover the property in 1965 during the cadastral survey of Medellin. Since then (1965) and until thefiling of the complaint for the recovery of the subject land before the RTC of Cebu in 1989, only 24years had lapsed. Since the required 30-year extraordinary prescriptive period had not yet beencomplied with in 1989, petitioner never acquired ownership of the subject land.

Laches

Neither can petitioner find refuge in the principle of laches. It is not just the lapse of time or delay thatconstitutes laches. The essence of laches is the failure or neglect, for an unreasonable andunexplained length of time, to do that which, through due diligence, could or should have been done

earlier, thus giving rise to a presumption that the party entitled to assert it had either abandoned ordeclined to assert it.32

Its essential elements are: (a) conduct on the part of the defendant, or of one under whom he claims,giving rise to the situation complained of; (b) delay in asserting complainants rights after he hadknowledge of defendants acts and after he has had the opportunity to sue; (c) lack of knowledge ornotice by defendant that the complainant will assert the right on which he bases his suit; and (d)injury or prejudice to the defendant in the event the relief is accorded to the complainant.33

The second element (which in turn has three aspects) is lacking in the case at bar. These aspectsare: (a) knowledge of defendant's action, (b) opportunity to sue defendant after obtaining suchknowledge and (c) delay in the filing of such suit.34

Records show that respondent heirs only learned about petitioners claim on their property whenthey discovered the inscription for the cadastral survey in the records of the Bureau of Lands in1989. Respondents lost no time in demanding an explanation for said claim in their letters to thepetitioner dated March 1, 1989 and April 6, 1989. When petitioner ignored them, they instituted theircomplaint before the Regional Trial Court of Cebu City on June 8, 1989.

Petitioners reliance onCaro vs. Court of Appeals35and Vda. de Alberto vs. Court of Appeals36ismisplaced. There, laches was applied to bar petitioners from questioning the ownership of thedisputed properties precisely because they had knowledge of the adverse claims on their propertiesyet tarried for an extraordinary period of time before taking steps to protect their rights.

Further, there is no absolute rule on what constitutes laches. It is a rule of equity and applied not to

penalize neglect or sleeping on ones rights but rather to avoid recognizing a right when to do sowould result in a clearly unfair situation. The question of laches is addressed to the sound discretionof the court and each case must be decided according to its particular circumstances.37It is thebetter rule that courts, under the principle of equity, should not be guided or bound strictly by thestatute of limitations or the doctrine of laches if wrong or injustice will result.

It is clear that petitioner never acquired ownership over Cadastral Lot No. 954 whether byextraordinary acquisitive prescription or by laches.
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Acquisition of Easement of Right of Way ByPrescription Under Art. 620 of the Civil Code

Petitioner contends that, even if it failed to acquire ownership of the subject land, it neverthelessbecame legally entitled to the easement of right of way over said land by virtue of prescription under

Article 620 of the Civil Code:

Continuous and apparent easements are acquired either by virtue of a title or by prescription of tenyears.

The trial court and the Court of Appeals both upheld this view for the reason that the railroad right ofway was, according to them, continuous and apparent in nature. The more or less permanentrailroad tracks were visuallyapparentand they continuously occupied the subject strip of land from1959 (the year the easement granted by Feliciana Santillan to petitioner expired). Thus, with thelapse of the 10-year prescriptive period in 1969, petitioner supposedly acquired the easement ofright of way over the subject land.

Following the logic of the courts a quo, 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. Thereasoning is erroneous.

Under civil law and its jurisprudence, easements are either continuous or discontinuous accordingto the manner they are exercised, not according to the presence of apparent signs or physicalindications of the existence of such easements. Thus, an easement is continuous if its use is, or maybe, incessant without the intervention of any act of man, like the easement of drainage;38and it isdiscontinuous if it is used at intervals and depends on the act of man, like the easement of right ofway.39

The easement of right of way is considered discontinuous because it is exercised only if a personpasses or sets foot on somebody elses land. Like a road for the passage of vehicles or persons, aneasement of right of way of railroad tracks is discontinuous because the right is exercised only if andwhen a train operated by a person passes over another's property. In other words, the very exerciseof the servitude depends upon the act or intervention of man which is the very essence ofdiscontinuous easements.

The presence of more or less permanent railroad tracks does not in any way convert the nature ofan easement of right of way to one that is continuous. It is not the presence of apparent signs or

physical indications showing the existence of an easement, but rather the manner ofexercisethereof, that categorizes such easement into continuous or discontinuous. The presence ofphysical or visual signs only classifies an easement into apparent ornon-apparent. Thus, a road(which reveals a right of way) and a window (which evidences a right to light and view) are apparenteasements, while an easement of not building beyond a certain height is non-apparent.40

In Cuba, it has been held that the existence of apermanent railway does not make the right of way acontinuous one; it is only apparent. Therefore, it cannot be acquired by prescription.41In Louisiana, ithas also been held that a right of passage over another's land cannot be claimed by prescriptionbecause this easement is discontinuous and can be established only by title.42

In this case, the presence of railroad tracks for the passage of petitioners trains denotes theexistence of an apparent but discontinuous easement of right of way. And under Article 622 of theCivil Code, discontinuous easements, whether apparent or not, may be acquiredonly by title.Unfortunately, petitioner Bomedco never acquired any title over the use of the railroad right of way
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whether by law, donation, testamentary succession or contract. Its use of the right of way, howeverlong, never resulted in its acquisition of the easement because, under Article 622, the discontinuouseasement of a railroad right of way can only be acquired by titleand not by prescription.1wphi1

To be sure, beginning 1959 when the original 30-year grant of right of way given to petitionerBomedco expired, its occupation and use of Cadastral Lot No. 954 came to be by mere tolerance of

the respondent heirs. Thus, upon demand by said heirs in 1989 for the return of the subject land andthe removal of the railroad tracks, or, in the alternative, payment of compensation for the usethereof, petitioner Bomedco which had no title to the land should have returned the possessionthereof or should have begun paying compensation for its use.

But when is a party deemed to acquire title over the use of such land (that is, title over the easementof right of way)? In at least two cases, we held that if: (a) it had subsequently entered intoa contractualright of way with the heirs for the continued use of the land under the principles ofvoluntary easements or (b) it had filed a case against the heirs for conferment on it of a legaleasement of right of way under Article 629 of the Civil Code, then title over theuse of the land isdeemed to exist. The conferment of a legal easement of right of way under Article 629 is subject toproof of the following:

(1) it is surrounded by other immovables and has no adequate outlet to a public highway;

(2) payment of proper indemnity;

(3) the isolation is not the result of its own acts; and

(4) the right of way claimed is at the point least prejudicial to the servient estate, and, insofaras consistent with this rule, the distance from the dominant estate to the highway is theshortest.43

None of the above options to acquire title over the railroad right of way was ever pursued by

petitioner despite the fact that simple resourcefulness demanded such initiative, considering theimportance of the railway tracks to its business. No doubt, it is unlawfully occupying and using thesubject strip of land as a railroad right of way without valid title yet it refuses to vacate it even afterdemand of the heirs. Furthermore, it tenaciously insists on ownership thereof despite a clearshowing to the contrary.

We thus uphold the grant by the Court of Appeals of attorneys fees in the amount ofP10,000considering the evident bad faith of petitioner in refusing respondents just and lawful claims,compelling the latter to litigate.44

WHEREFORE, the petition is DENIED. The appealed decision dated November 17, 1995 andresolution dated March 2, 1996 of the Court of Appeals are AFFIRMED with MODIFICATION.Petitioner Bogo-Medellin Milling Company, Inc. is hereby ordered to vacate the subject strip of land

denominated as Cadastral Lot No. 954, remove its railway tracks thereon and return its possessionto the private respondents, the heirs of Magdaleno Valdez, Sr. It is also hereby ordered to payprivate respondents attorney's fees in the amount of P10,000.

SO ORDERED.
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G.R. No. 80511 January 25, 1991

COSTABELLA CORPORATION, petitioner,vs.COURT OF APPEALS, KATIPUNAN LUMBER CO., INC., AURORA BUSTOS LOPEZ, MANUELS. SATORRE, JR., JOSEFA C. REVILLES, FELIX TIUKINHOY, JR., PERFECTA L. CHUANGCO,

and CESAR T. ESPINA,respondents.

Roco, Bunag, Kapunan & Migallos for petitioner.

Albano, Garcia & Diaz Law Offices for Katipunan Lumber Co., Inc.

Zosa & Quijano Law Offices for respondents.

SARMIENTO, J.:p

The principal issue raised in this petition for review on certiorariof the decision 1dated May 30, 1986of the Court of Appeals, 2which modified the decision 3rendered by the Regional Trial Court of Lapu-Lapu City in Cebu, is whether or not the private respondents had acquired an easement of right of way, inthe form of a passageway, on the petitioner's property.

It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122 and5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it hadconstructed a resort and hotel. The private respondents, on the other hand, are the owners ofadjoining properties more particularly known as Lots Nos. 5123-A and 5123-C of the Opon Cadastre.

Before the petitioner began the construction of its beach hotel, the private respondents, in going toand from their respective properties and the provincial road, passed through a passageway which

traversed the petitioner's property. In 1981, the petitioner closed the aforementioned passagewaywhen it began the construction of its hotel, but nonetheless opened another route across its propertythrough which the private respondents, as in the past, were allowed to pass. (Later, or sometime in

August, 1982, when it undertook the construction of the second phase of its beach hotel, thepetitioner fenced its property thus closing even the alternative passageway and preventing theprivate respondents from traversing any part of it.)

As a direct consequence of these closures, an action for injunction with damages was filed againstthe petitioner by the private respondents on September 2, 1982 before the then Court of FirstInstance of Cebu. 4In their complaint, the private respondents assailed the petitioner's closure of theoriginal passageway which they (private respondents) claimed to be an "ancient road right of way" thathad been existing before World War II and since then had been used by them, the community, and thegeneral public, either as pedestrians or by means of vehicles, in going to and coming from Lapu-Lapu

City and other parts of the country. The private respondents averred that by closing the alleged road rightof way in question, the petitioner had deprived them access to their properties and caused themdamages.

In the same complainant, the private respondents likewise alleged that the petitioner hadconstructed a dike on the beach fronting the latter's property without the necessary permit,obstructing the passage of the residents and local fishermen, and trapping debris and flotsam on thebeach. They also claimed that the debris and flotsam that had accumulated prevented them fromusing their properties for the purpose for which they had acquired them. The complaint this prayed


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for the trial court to order the re-opening of the original passageway across the petitioner's propertyas well as the destruction of the dike. 5

In its answer, 6the petitioner denied the existence of an ancient road through its property and counter-averred, among others, that it and its predecessors-in-interest had permitted the temporary, intermittent,and gratuitous use of, or passage through, its property by the private respondents and others by mere

tolerance and purely as an act of neighborliness. It justified the walling in of its property in view of theneed to insure the safety and security of its hotel and beach resort, and for the protection of the privacyand convenience of its hotel patrons and guests. At any rate, the petitioner alleged, the privaterespondents were not entirely dependent on the subject passageway as they (private respondents) hadanother existing and adequate access to the public road through other properties. With respect to the dikeit allegedly constructed, the petitioner stated that what it built was a breakwater on the foreshore landfronting its property and not a dike as claimed by the private respondents. Moreover, contrary to theprivate respondents' accusation, the said construction had benefitted the community especially thefishermen who used the same as mooring for their boats during low tide. The quantity of flotsam anddebris which had formed on the private respondents' beach front on the other hand were but the naturaland unavoidable accumulations on beaches by the action of the tides and movement of the waves of thesea. The petitioner's answer then assailed the private respondents' complaint for its failure to implead asdefendants the owners of the other properties supposedly traversed by the alleged ancient road right

way, indispensable parties without whom no final adjudication of the controversy could be rendered.

7

After trial, the court a quorendered a decision on March 15, 1984 finding that the privaterespondents had acquired a vested right over the passageway in controversy based on its longexistence and its continued use and enjoyment not only by the private respondents, but also by thecommunity at large. The petitioner in so closing the said passageway, had accordingly violated theprivate respondents' vested right. Thus, the trial court ordered the petitioner:

1. To open and make available the road in question to the plaintiffs and the generalpublic at all times free of any obstacle thereof, unless the defendant, shall provideanother road equally accessible and convenient as the road or passage closed bythe defendant;

2. To pay the plaintiff Katipunan Lumber Company, Inc. the amount of FIVETHOUSAND PESOS (P5,000.00) a month beginning January, 1983, and the plaintiffPerfecto Guangco the sum of TWO HUNDRED PESOS (P200.00) a monthbeginning September, 1982, representing their respective expenditures they hadincurred in other beach resorts after the road was closed, until the passagewayclaimed by them is opened and made available to them, or if the defendant choosesto provide another road, until such road is made available and conveniently passableto the plaintiffs and the general public; and

3. To pay the sum of FIFTEEN THOUSAND PESOS (P15,000.00) attorney's fees,and to pay the costs. 8

Both parties elevated the trial court's decision to the Court of Appeals, with the petitioner questioningthe alleged "vested right" of the private respondents over the subject passageway, and the privaterespondents assailing the dismissal of their complaint insofar as their prayer for the demolition of thepetitioner's "dike" is concerned.

In its decision, the respondent Appellate Court held as without basis the trial court's finding that theprivate respondents had acquired a vested right over the passageway in question by virtue ofprescription. 9The appellate court pointed out that an easement of right of way is a discontinuous onewhich, under Article 622 of the New Civil Code, may only be acquired by virtue of a title and not by


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prescription. 10That notwithstanding, the appellate court went on to rule that ". . . in the interest of justiceand in the exercise by this Court of its equity jurisdiction, there is no reason for Us in not treating theeasement here sought by appellees Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is notdependent upon the claims of the parties but a compulsory one that is legally demandable by the ownerof the dominant estate from the owner of the servient estate." 11Thus the appellate court: (1) granted theprivate respondents the right to an easement of way on the petitioner's property using the passageway inquestion, unless the petitioner should provide another passageway equally accessible and convenient asthe one it closed; (2) remanded the case to the trial court for the determination of the just and properindemnity to be paid to the petitioner by the private respondents for the said easement; and (3) set asidethe trial court's award of actual damages and attorney's fees. 12

On petitioner's motion for partial reconsideration, the respondent court issued on October 27, 1987 aresolution 13denying the said motion. The Appellate Court however in denying the petitioner's motion forreconsideration stated that:

. . . While it is true that there is another outlet for the plaintiff to the main road, yetsuch outlet is a new road constructed in 1979, while the road closed by defendantexisted since over 30 years before. Legally, the old road could be closed; but sincethe existing outlet is inconvenient to the plaintiff, equitably the plaintiff should be

given a chance to pay for a more convenient outlet through the land of the defendantat a point least prejudicial to the latter. In any event, the plaintiff shall pay for alldamages that defendant corporation may sustain and the defendant regulates themanner of use of the right of way to protect defendant's property and its customers.This is the gist of Our decision. 14

Now before us, the petitioner contends that the decision of the respondent appellate court is grosslyerroneous and not in accord with the provisions of Articles 649 and 650 of the Civil Code oneasements and the prevailing jurisprudence on the matter.

The petition is meritorious.

It is already well-established that an easement of right of way, as is involved here, isdiscontinuous 15and as such can not be acquired by prescription. 16Insofar therefore as the appellatecourt adhered to the foregoing precepts, it stood correct. Unfortunately, after making the correctpronouncement, the respondent Appellate Court did not order the reversal of the trial court's decision andthe dismissal of the complaint after holding that no easement had been validly constituted over thepetitioner's property. Instead, the Appellate Court went on to commit a reversible error by considering thepassageway in issue as a compulsory easement which the private respondents, as owners of the"dominant" estate, may demand from the petitioner the latter being the owner of the "servient" estate.

It is provided under Articles 649 and 650 of the New Civil Code that:

Art. 649. The owner, or any person who by virtue of a real right may cultivate or useany immovable, which is surrounded by other immovables pertaining to other

persons and without adequate outlet to a public highway, is entitled to demand aright of way through the neighboring estates, after payment of the proper indemnity.

Should this easement be established in such a manner that its use may becontinuous for all the needs of the dominant estate, establishing a permanentpassage, the indemnity shall consist of the value of the land occupied and theamount of the damage caused to the servient estate.


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In case the right of way is limited to the necessary passage for the cultivation of theestate surrounded by others and for the gathering of its crops through the servientestate without a permanent way, the indemnity shall consist in the payment of thedamage caused by such encumbrance.

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

proprietor's own acts.

Art. 650. The easement of right of way shall be established at the point leastprejudicial to the servient estate, and, insofar as consistent with this rule, where thedistance from the dominant estate to a public highway may be the shortest.

Based on the foregoing, the owner of the dominant estate may validly claim a compulsory right ofway only after he has established the existence of four requisites, to wit: (1) the (dominant) estate issurrounded by other immovables and is without adequate outlet to a public highway; (2) afterpayment of the proper indemnity; (3) the isolation was not due to the proprietor's own acts; and (4)the right of way claimed is at a point least prejudicial to the servient estate. Additionally, the burdenof proving the existence of the foregoing pre-requisites lies on the owner of the dominant estate. 17

Here, there is absent any showing that the private respondents had established the existence of thefour requisites mandated by law. For one, they failed to prove that there is no adequate outlet fromtheir respective properties to a public highway. On the contrary, as alleged by the petitioner in itsanswer to the complaint, and confirmed by the appellate court, "there is another outlet for theplaintiffs (private respondents) to the main road." 18Thus, the respondent Court of Appeals likewiseadmitted that "legally the old road could beclosed." 19Yet, it ordered the re- opening of the old passageway on the ground that "the existing outlet(the other outlet) is inconvenient to the plaintiff." 20On this score, it is apparent that the Court of Appealslost sight of the fact that the convenience of the dominant estate has never been the gauge for the grantof compulsory right of way. 21To be sure, the true standard for the grant of the legal right is "adequacy."Hence, when there is already an existing adequate outlet from the dominant estate to a public highway,even if the said outlet, for one reason or another, be inconvenient, the need to open up another servitude

is entirely unjustified. For to justify the imposition of an easement or right of way, "there must be a real,not a fictitious or artificial necessity for it." 22

Further, the private respondents failed to indicate in their complaint or even to manifest during thetrial of the case that they were willing to indemnify fully the petitioner for the right of way to beestablished over its property. Neither have the private respondents been able to show that theisolation of their property was not due to their personal or their predecessors-in-interest's own acts.Finally, the private respondents failed to allege, much more introduce any evidence, that thepassageway they seek to be re-opened is at a point least prejudicial to the petitioner. Consideringthat the petitioner operates a hotel and beach resort in its property, it must undeniably maintain astrict standard of security within its premises. Otherwise, the convenience, privacy, and safety of itsclients and patrons would be compromised. That indubitably will doom the petitioner's business. It istherefore of great importance that the claimed light of way over the petitioner's property be located at

a point least prejudicial to its business.

Hence, the Private respondents' properties can not be said to be isolated, for which a compulsoryeasement is demandable. Insofar therefore as the Appellate Court declared the case to be proper asa controversy for a compulsory right of way, this Court is constrained to hold that it was in error.

Servitudes of right of way are an ancient concept, which date back to theiter, actus, and via of theRomans. 23They are demanded by necessity, that is, to enable owners of isolated estates to make fulluse of their properties, which lack of access to public roads has denied them. 24Under Article 649 of the


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Civil Code, they are compulsory and hence, legally demandable, subject to indemnity and theconcurrence of the other conditions above-referred to.

As also earlier indicated, there must be a real necessity therefor, and not mere convenience for thedominant estate. Hence, if there is an existing outlet, otherwise adequate, to the highway, the"dominant" estate can not demand a right of way, although the same may not be convenient. Of

course, the question of when a particular passage may be said to be "adequate" depends on thecircumstances of each case. Manresa, however, says: "In truth, not only the estate which absolutelydoes not possess it should be considered in this condition, but also that which does not have onesufficiently safe or serviceable; an estate bordering a public road through an inaccessible slope orprecipice, is in fact isolated for all the effects of the easement requested by its owner. On the otherhand, an estate which for any reason has necessarily lost its access to a public road during certainperiods of the year is in the same condition. . . . There are some who propound the query as towhether the fact that a river flows between the estate and the public road should be considered ashaving the effect of isolating the estate. . . . If the river may be crossed conveniently at all timeswithout the least danger, it cannot be said that the estate is isolated; in any other case, the answer isin the affirmative." 25

The isolation of the dominant estate is also dependent on the particular need of the dominant owner,and the estate itself need not be totally landlocked. What is important to consider is whether or not aright of way is necessary to fill a reasonable need therefor by the owner. 26Thus, as Manresa hadpointed out, if the passageway consists of an "inaccessible slope or precipice," 27it is as if there is nopassageway, that is, one that can sufficiently fulfill the dominant owner's necessities, although by theexistence of that passageway the property can not be truly said that the property is isolated. So also,while an existing right of way may have proved adequate at the start, the dominant owner's need mayhave changed since then, for which Article 651 of the Code allows adjustments as to width. 28

But while a right of way is legally demandable, the owner of the dominant estate is not at liberty toimpose one based on arbitrary choice. Under Article 650 of the Code, it shall be established upontwo criteria: (1) at the point least prejudicial to the servient state; and (2) where the distance to apublic highway may be the shortest. According, however, to one commentator, "least prejudice"

prevails over "shortest distance."

29

Yet, each case must be weighed according to its individual merits,and judged according to the sound discretion of the court. "The court," says Tolentino, "is not bound toestablish what is the shortest; a longer way may be established to avoid injury to the servient tenement,such as when there are constuctions or walls which can be avoided by a roundabout way, or to securethe interest of the dominant owner, such as when the shortest distance would place the way on adangerous decline." 30

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

WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987, of therespondent Court of Appeals are SET ASIDE and the private respondents' complaint is herebyDISMISSED. Costs against the private respondents.

SO ORDERED.


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existence of the easement, nor has there been final judgment to that effect. Invoking our decisionin Cortes vs. Yu-Tibo (2 Phil., 24), petitioner maintains that respondent has not acquired aneasement by prescription because he has never formally forbidden petitioner from performing anyact which would be lawful without the easement, hence the prescriptive period never started.

It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and the doctrine in the Yu-

Tibo case are not applicable herein because the two estates, that now owned by petitioner, and thatowner by respondent, were formerly owned by just one person, Francisco Sanz. It was Sanz whointroduced improvements on both properties. On that portion presently belonging to respondent, heconstructed a house in such a way that the northeastern side thereof extends to the wall ofthe camarinon the portion now belonging to petitioner. On said northeastern side of the house, thereare windows and doors which serve as passages for light and view. These windows and doors werein existence when respondent purchased the house and lot from Sanz. The deed sale did notprovide that the easement of light and view would not be established. This then is precisely the casecovered by Article 541, O.C.C (now Article 624, N.C.C) which provides that the existence of anapparent sign of easement between two estates, established by the proprietor of both, shall beconsidered, if one of them is alienated, as a title so that the easement will continue actively andpassively, unless at the time the ownership of the two estate is divided, the contrary is stated in thedeed of alienation of either of them, or the sign is made to disappear before the instrument isexecuted. The existence of the doors and windows on the northeastern side of the aforementionedhouse, is equivalent to a title, for the visible and permanent sign of an easement is the title thatcharacterizes its existence (Amor vs. Florentino, 74 Phil., 403). It should be noted, however, thatwhile the law declares that the easement is to "continue" the easement actually arises for the firsttime only upon alienation of either estate, inasmuch as before that time there is no easement tospeak of, there being but one owner of both estates (Articles 530, O.C.C., now Articles 613, N.C.C).

We find that respondent Tan Yanon's property has an easement of light and view against petitioner'sproperty. By reason of his easement petitioner cannot construct on his land any building unless heerects it at a distance of not less than three meters from the boundary line separating the twoestates.

Wherefore, the appealed decision is hereby affirmed with costs against petitioner.


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G.R. No. L-66520 August 30, 1988

EDUARDO C. TAEDO, petitioner,vs.HON. JUANITO A. BERNAD, Presiding Judge of the Regional Trial Court, 7th Judicial Region,Branch XXI, Cebu City; Spouses ROMEO SIM and PACITA S. SIM; and Spouses ANTONIO

CARDENAS and MAE LINDA CARDENAS, respondents.

Numeriano F. Capangpangan for petitioner.

Meinrado P. Parades for private respondents.

PADILLA, J.:

This is a petition for review on certiorari of the Order issued by the respondent judge, Hon. JuanitaA. Bernad on 5 December 1983, which dismissed the complaint for legal redemption filed by the

petitioner in Civil Case No. CEB-994 of the Regional Trial Court of Cebu, and the Order of the samerespondent judge, dated 20 January 1984, which denied petitioner's motion for reconsideration.

The facts, in brief, are as follows:

The private respondent Antonio Cardenas was the owner of two (2) contiguous parcels of landsituated in Cebu City which he had inherited from Lourdes Cardenas and more particularly known asLot 7501-A, with an area of 140 square meters and Lot 7501-B, with an area of 612 square meters.On Lot 7501-A is constructed an apartment building, while the improvements on Lot 7501-B consistof one four-door apartment of concrete and strong materials; one two-storey house of strongmaterials; a bodegaof strong materials; and a septic tank for the common use of the occupants ofLots 7501-A and 7501-B. A small portion of the apartment building on Lot 7501-A also stands on Lot

7501-B.

On 5 February 1982, said Antonio Cardenas sold Lot 7501-A to herein petitioner Eduardo C.Taedo. 1

Antonio Cardenas, on that same day, also mortgaged Lot 7501-B to said Eduardo C. Taedo as asecurity for the payment of a loan in the amount of P10,000.00. 2

Antonio Cardenas further agreed that he would sell Lot 7501-B only to Eduardo Taedo in case heshould decide to sell it, as the septic tank in Lot 7501-B services Lot 7501-A and the apartmentbuilding on Lot 7501-A has a part standing on Lot 7501-B. This was confirmed in a letter, dated 26February 1982, wherein Antonio Cardenas asked Taedo not to deduct the mortgage loan of

P10,000.00 from the purchase price of Lot 7501-A "because as we have previously agreed, I will sellto you Lot 7501-B."3

Antonio Cardenas, however, sold Lot 7501-B to the herein respondent spouses Romeo and PacitaSim. 4Upon learning of the sale, Eduardo Taedo offered to redeem the property from Romeo Sim. Butthe latter refused. Instead, Romeo Sim blocked the sewage pipe connecting the building of EduardoTaedo built on Lot 7501-A, to the septic tank in Lot 7501-B. He also asked Taedo to remove thatportion of his building enroaching on Lot 7501-B. As a result, Eduardo Taedo, invoking the provisions ofArt. 1622 of the Civil Code, filed an action for legal redemption and damages, with a prayer for the


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cadastral survey of Cebu, LRC (GLRC) Cad. Record No. 9465, situated in the City ofCebu, containing an area of SIX HUNDRED TWELVE (612) Square meters more orless which lot is adjacent to Lot No. 7501-A of the plaintiff and where part of theplaintiffs apartment is standing on, the same should be sold to the plaintiff, but farfrom compliance of the written agreement, defendant spouses Antonio Cardenas andMae Linda Cardenas sureptiously[sic] sold the aforestated Lot No. -7501-B- to the

defendant spouses, Romeo Sim and Pacita Sim on July 23, 1982 as per Deed ofSale notarized by Notary Public, Jorge S. Omega and entered in his NotarialRegister as Doc. No. 462; Page No. -94- Book No. 11, Series of 1982;

4. That due to the sale by the defendant spouses Antonio Cardenas and Mae LindaCardenas of the property in question to spouses Romeo Sim and Pacita Lim, plaintiffsuffered moral damages in the formof mental anguish, sleepless nights, mentaltorture, for which he is entitledto a compensation in the amount tobeestablishedduring the trial of the case and has incurred litigationexpensessubject for reimbursentent and attorneys fee in the sum ofP10,000.00 which should be chargeable to both defendant spouses;13

and the plaintiff (herein petitioner) prayed, among others: "(c) That defendant spouses Romeo Simand Pacita Sim and spouses Antonio Cardenas and Mae Linda Cardenas be ordered to pay plaintiffmoral damages, litigation expenses and attorneys fees in the amount of P50,000.00." 14

That there was a written agreement, as alleged in the complaint, between the plaintiff EduardoTaedo and the defendant Antonio Cardenas is admitted by the latter. In his answer, he alleged thefollowing:

ALLEGATIONS as to written agreement is ADMITTED, but, specifically denies thatherein defendants SUREPTIOUSLY [sic] SOLD the lot in question to the otherdefendant Spouses Sim the truth is, that the herein defendants [sic] was required toexecute the Deed of Sale described in this paragraph 3 as security for the personalloans and other forms of indebtedness incurred from the Spouses Sims but never as

a conveyance to transfer ownership;15

Considering this admission of defendant Cardenas, and that his promise to sell Lot 7501-B toEduardo Taedo appears to be for a valuable consideration, a trial is necessary to determine, at thevery least, the amount of damages suffered by the plaintiff Eduardo Tafiedo by reason of suchbreach of promise to sell, if indeed there is such a breach.

Moreover, the finding of the trial court that petitioner Taedo's right to continue to use the septictank, erected on Lot 7501-B, ceased upon the subdivision of the land and its subsequent sale todifferent owners who do not have the same interest,16also appears to be contrary to law. Article 631 ofthe Civil Code enumerates the grounds for the extinguishment of an easement. Said article provides:

Art. 631. Easements are extinguished:

(1) By merger in the same person of the ownership of the dominant and servientestates;

(2) By non-user for ten years; with respect to discontinuous easements, this periodshall be computed from the day on which they ceased to be used; and, with respectto continuous easements, from the day on which an act contrary to the same tookplace;


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(3) When either or both of the estates fall into such condition that the easementcannot be used; but it shall revive if the subsequent condition of the estates or eitherof them should again permit its use, unless when the use becomes possible,sufficient time for prescription has elapsed, in accordance with the provisions of thepreceding number;

(4) By the expiration of the term or the fulfillment of the conditions, if the easement istemporary or conditional;

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

(6) By the redemption agreed upon between the owners of the dominant and servientestates.

As can be seen from the above provisions, the alienation of the dominant and servient estates todifferent persons is not one of the grounds for the extinguishment of an easement. On the contrary,use of the easement is continued by operation of law. Article 624 of the Civil Code provides:

Art. 624. The existence of an apparent sign of easement between two estates,established or maintained by the owner of both, shall be considered, should either ofthem be alienated, as a title in order that the easement may continue actively andpassively, unless, at the time the ownership of the two estates is divided, the contraryshould be provided in the title of conveyance of either of them, or the sign aforesaidshould be removed before the execution of the deed. This provision shall also applyin case of the division of a thing owned in common by two or more persons.

In the instant case, no statement abolishing or extinguishing the easement of drainage wasmentioned in the deed of sale of Lot 7501-A to Eduardo Taedo. Nor did Antonio Cardenas stop theuse of the drain pipe and septic tank by the occupants of Lot 7501-A before he sold said lot toEduardo Tafiedo. Hence, the use o

Cases 6th Batch

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