Republic of the Philippines

SUPREME COURT Manila

SECOND DIVISION

G.R. No. 90596 April 8, 1991

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

Balgos & Perez for petitioner.

Alfredo G. de Guzman for private respondent.

SARMIENTO, J.:p

This is an appeal filed by way of a petition for review on certiorari under Rule 45 of the Rules of Court.

The petitioner raises two questions: (1) whether or not the Court of Appeals 1 erred in reversing the trial court which had

rendered summary judgment; and (2) whether or not it erred in holding that an easement 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 by Transfer Certificate of Title No. 157750 of the Register of Deeds of Manila. The same lies in the vicinity of another parcel, registered in the name of the private respondent corporation under Transfer Certificate of Title No. 128784.

The private respondent's title came from a prior owner, and in their deed of sale, the parties thereto reserved 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 neighboring estates, this being duly annotated at the back of the covering transfer Certificate of title per regulations of the Office of the City Engineer of Manila and that the three meterwide portion of said parcel along the Pasig River, with an area of ONE HUNDRED SEVENTY NINE (179) SQUARE METERS, more or less, had actually been expropriated by the City Government, and developed pursuant to the beautification 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-5000 –– CONSTRUCTION OF PRIVATE ALLEY –– It is hereby made of record that a construction of private alley has been undertaken on the lot covered by this title from Concepcion Street to the interior of the aforesaid property with the plan and specification duly approved by the City Engineer subject to the following conditions to wit: (1) That the private alley shall be at least three (3) meters in width; (2) That the alley shall not be closed so long as there's a building exists thereon (sic); (3) That the alley shall be open to the sky; (4) That the owner of the lot on which this private alley has been constituted shall construct the said alley and provide same with concrete canals as per specification of the City Engineer; (5) That the maintenance and upkeep of the alley shall be at the expense of the registered owner; (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 the alley has been constructed shall allow the public to use the same, and allow the City to lay pipes for sewer and drainage purposes, and shall not act

(sic) for any indemnity for the use thereof; and (8) That he shall impose upon the vendee or new owner of the property 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) made use 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 precluded unhampered 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 easement referred to has been extinguished by merger in the same person of the dominant and servient estates upon the purchase of the property from its former owner; (2) the petitioner has another adequate outlet; (3) the petitioner has not paid any indemnity therefor; and (4) the petitioner has not shown 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 of preliminary injunction to continue up to the final termination of the case upon its merits upon the posting 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 the same as follows:

In view of the foregoing, this Court finds it unnecessary to try this case on the merit (sic) and hereby resolve (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, the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered making permanent the temporary mandatory injunction, that had been issued against the defendant, and for the defendant to pay the plaintiff the costs of this suit.

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

6

The private respondent appealed to the respondent Court of Appeals.

Meanwhile, the private respondent itself went to the Regional Trial Court on a petition for the cancellation of the annotation in question. The court granted cancellation, for which the petitioner instituted CA-G.R. SP No. 13421 of the respondent Court of Appeals which ordered the restoration of the annotation "without prejudice [to] the final outcome of

7

the private respondent's own appeal (subject of this petition).

In reversing the trial court which had, as earlier mentioned, rendered summary judgment, the respondent Court of Appeals held that the summary judgment was improper and that the lower court erroneously ignored the defense set up by the private respondent that the easement in question had been extinguished. According to the Appellate Court, an easement is a mere limitation on ownership and that it does not impair the private respondent's title, and that since the private respondent had acquired 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 sale executed between the private respondent and the previous owner of the property "excluded" the alley in question, and that in any event, the intent of the parties was to retain the "alley" as an easement 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 the private respondent and the seller, had been constituted on the private respondent's property, and has been in fact annotated at the back of Transfer Certificate of Title No. 128784. Specifically, the same 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 the alley has been constructed shall allow the public to use the same, and allow the City to lay pipes for sewer and drainage purposes, and shall not [ask] for any indemnity for the use thereof. . ."

8 Its act, therefore, of erecting steel gates

across the alley was in defiance of these conditions and a violation of the 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 the portion on which the right-of-way had been established and that an easement can not impair ownership. The petitioner is not claiming the easement or any part of the property as its own, but rather, 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, it has 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 exists on 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 contention that the deed of sale "excluded" it, because as a mere right-of-way, it can not be separated from the tenement and maintain an independent existence. Thus:

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

Servitudes are merely accessories to the tenements of which they form part. 10

Although they are possessed of a separate juridical existence, as mere accessories, they can not, however, be alienated

11 from the tenement, or mortgaged

separately. 12

The fact, however, that the alley in question, as an easement, is inseparable from the main lot is no argument 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 the tenement] measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been converted into a private alley for the benefit of the neighboring estates. . ."

13 and precisely, the former owner, 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 the purchase price from THREE MILLION SEVEN HUNDRED NINETY THOUSAND FOUR HUNDRED FORTY PESOS (P3,790,440.) to THREE MILLION FIVE HUNDRED 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 property –– including the disputed alley –– as a result of the conveyance, it did not acquire the right to close that alley or otherwise put up obstructions thereon and thus prevent the public from using it, because as a 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 genuine merger 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 is consolidated in the same person.

15 Merger then, as can be seen,

requires full ownership of both estates.

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 the benefit 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 of one 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 the easement pertains to persons without a dominant estate,

17 in 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 the property in favor of the public –– if that is possible –– no genuine merger can take place that would terminate a personal easement.

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

Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issue as to the existence of a material fact, and the facts appear undisputed based on the pleadings, depositions, admissions, and affidavits of record.

18 In one case, this Court upheld a decision of the trial court rendered by summary judgment on a claim for money

to which the defendant interposed the defense of payment but which failed to produce receipts. 19

We held that under the circumstances, the defense 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 by a 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, on the ground that from the records, the plaintiffs were clearly guilty of laches having failed to act until after twenty-seven years.

21 We likewise allowed summary judgment and rejected contentions of economic hardship as an excuse for

avoiding payment under a contract for the reason that the contract imposed liability under any and 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 a material 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 trial where, from existing records,

23 the facts have been established, and trial would be futile.

What indeed, argues against the posturing of the private respondent –– and consequently, the challenged holding of the respondent Court of Appeals as well –– is the fact that the Court of Appeals itself had rendered judgment, in its CA-G.R. No. 13421, entitled Solid Manila Corporation v. Ysrael, in which it nullified the cancellation of the easement annotated at the back of the private respondent's certificate of title ordered by Judge Ysrael in LRC Case No. 273. As the petitioner now in 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. More specifically, it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (21 C.J.S. 330) (Emphasis supplied).

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

In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has remanded the cause for further action below, it will refuse to examine question other than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has proceeded in substantial conformity to the directions 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 law of 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). (Emphasis supplied.)

Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion. (5 C.J.S. 1286-87). (Emphasis supplied.)

24

CA-G.R. No. 13421 is the law of the case because clearly, it was brought to determine the rights of the 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 the law of the case, after all, it was the one that initiated the cancellation proceedings with the Regional Trial Court in LRC No. 273 that precipitated that appeal. In the second place, the proceedings for cancellation of annotation was in fact meant to preempt the injunction decreed by the lower court in this case. Plainly and simply, the private respondent is guilty of forum-shopping, as we have described the term:

xxx xxx xxx

There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with respect to suits filed in the courts but also in connection with litigations commenced in the courts while an administrative proceeding is pending, as in this case, in order to defeat administrative processes and in anticipation of an unfavorable administrative ruling and a favorable court ruling. This is specially so, as in this case, where the court in which the second suit was 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 unfriendly court and it can not be made to profit from its act of malpractice by permitting it to downgrade its finality 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, 27

this Court, speaking through Justice Claro Recto, declared that a personal servitude (also a right of way in that case) is established by the mere "act"

28 of the landowner,

and is not "contractual in the nature," 29

and a third party (as the petitioner 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 "[t]he act of the plaintiff in opening the private way here involved did not constitute an offer . . . "

30 and "[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 would contend even more spiritedly in the "larger" world of politics) to whom present scholars perhaps owe their 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 or whether it has been extinguished. As we held, our findings is that it is in existence and as a consequence, 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 and the decision of the Regional Trial Court is hereby REINSTATED. The petitioner and its counsel are hereby required to SHOW CAUSE why they should not be punished for contempt of court, and also administratively dealt with in the case of counsel, for forum shopping.

IT IS SO ORDERED.

Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Footnotes

1 Herrera, Manuel, J., Ponente; Reyes, Minerva and Sempio Diy, Alicia, JJ., Concurring.

2 Rollo, 31.

3 Id, 31-32.

4 Id., 34.

5 Id., 15, 37.

6 Id., 96.

7 Id.

8 Id., 32.

9 CIVIL CODE, art. 617.

10 II TOLENTINO, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES 343-344. (1972 ed.)

11 Id., 344.

12 Id.

13 Rollo, Id., 31; emphasis supplied.

14 Id., 21 emphasis in the original.

15 CIVIL CODE, supra, art. 631(1)

16 Supra, art. 614.

17 TOLENTINO, Id., 340.

18 RULES OF COURT, Rule 34; Natalia Realty Corporation v. Valley, G.R. Nos. 78290-94, May 23, 1989, 173 SCRA 534.

19 Carcon Development Corporation v. Court of Appeals, G.R. No. 88218, December 19, 1989, 180 SCRA 348.

20 Natalia Realty Corporation v. Valley, supra.

21 Arradaza v. Court of Appeals, G.R. No. 50422, February 8, 1989, 170 SCRA 12.

22 Garcia v. Court of Appeals, Nos. 82282-83, November 24, 1988, 167 SCRA 815.

23 Supra; also Arradaza v. Court of Appeals, supra.

24 People v. Pinuila, 103 Phil. 992, 999 (1958); emphasis in the original.

25 Villanueva v. Adre, G.R. No. 80863, April 27, 1989, 172 SCRA 876, 882.

26 Supra.

27 63 Phil. 664 (1936).

28 Supra, 684. Under Article 619 of the Civil Code, voluntary easements and established "by the will of the owner."

29 Supra.

30 Supra, 696.

31 Supra.

Republic of the Philippines

SUPREME COURT Manila

THIRD DIVISION

G.R. No. 124699 July 31, 2003

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 certiorari under Rule 45 of the Rules of Court seeking to annul and set aside the decision1

dated November 17, 1995 of the Court of Appeals, Tenth Division, which reversed the decision2 dated

November 27, 1991 of the Regional Trial Court of Cebu City, Branch IX, which ruled in favor of herein

petitioner, Bogo-Medellin Milling Company, Inc. and dismissed herein private respondents' complaint for

payment of compensation and/or recovery of possession of real property and damages with application for

restraining order or preliminary injunction; and its resolution dated March 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 by Tax Declaration No. 3935 with an

area of one hectare, 34 ares and 16 centares, located in Barrio Dayhagon, Medellin, Cebu.3 He took possession

of the property and declared it for tax purposes in his name.4

Prior to the sale, however, the entire length of the land from north to south was already traversed in the middle

by railroad tracks owned by petitioner Bogo-Medellin Milling Co., Inc. (hereafter Bomedco). The tracks were

used for hauling sugar cane from the fields to petitioner’s 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 occupied by the railroad tracks

placed in its name in the Cadastral Survey of Medellin, Cebu in 1965. The entire 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 lot where the railroad tracks lay, was claimed by Bomedco as

its own and was declared for tax purposes in its name. 5

It was not until 1989 when private respondents discovered the aforementioned claim of Bomedco on inquiry

with the Bureau of Lands. Through their lawyer, they immediately demanded the legal basis for Bomedco's

claim over Cadastral Lot No. 954 but their letter of inquiry addressed to petitioner went unheeded, as was their

subsequent demand for payment of compensation for the use of the land.6

On June 8, 1989, respondent heirs filed a "Complaint for Payment of Compensation and/or Recovery of

Possession of Real Property and Damages with Application for Restraining Order/Preliminary Injunction"

against Bomedco before the Regional Trial Court of Cebu.7 Respondent heirs alleged that, before she sold the

land to Valdez, Sr. in 1935, Santillan granted 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 but

respondent heirs allowed Bomedco to continue using the land because one of them was then an employee of the

company.8

In support of the complaint, they presented an ancient document ― an original copy of the deed of sale written

in Spanish and dated December 9, 19359 ― to evidence the sale of the land to Magdaleno Valdez, Sr.; several

original real estate tax receipts10

including Real Property Tax Receipt No. 393511

dated 1922 in the name of

Graciano de los Reyes, husband of Feliciana Santillan, and Real Property Tax Receipt No. 0949112

dated 1963

in the name of Magdaleno Valdez, Sr. Magdaleno Valdez, Jr. also testified for the plaintiffs during the trial.

On the other hand, Bomedco’s principal defense was that it was the owner and possessor of Cadastral Lot No.

954, having allegedly bought the same from Feliciana Santillan in 1929, prior to the sale of the property by the

latter to Magdaleno Valdez, Sr. in 1935. It also contended that plaintiffs’ claim was already barred by

prescription and laches because of Bomedco’s open and continuous possession of the property for more than 50

years.

Bomedco submitted in evidence a Deed of Sale13

dated March 18, 1929; seven real estate tax receipts14

for the

property covering the period from 1930 to 1985; a 1929 Survey Plan of private land for Bogo-Medellin Milling

Company;15

a Survey Notification Card;16

Lot Data Computation for Lot No. 954;17

a Cadastral Map for

Medellin Cadastre18

as well as the testimonies of Vicente Basmayor, Geodetic Engineer and property custodian

for Bomedco, and Rafaela A. Belleza, Geodetic Engineer and Chief of the Land Management Services of the

DENR, Region VIII.

In its decision dated November 27, 1991, the trial court19

rejected Bomedco's defense of ownership on the basis

of a prior sale, citing that its evidence – a xerox copy of the Deed of Sale dated March 18, 1929 – was

inadmissible and had no probative value. Not only was it not signed by the parties but defendant Bomedco also

failed to present the original copy without valid reason pursuant to Section 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 in good faith for

more than 10 years, thus, it had already acquired ownership of the property through acquisitive 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 used by

defendant as an easement is no longer at issue, because plaintiffs themselves had acknowledged that the

existence of the railway tracks of defendant Bomedco was already known by the late Magdaleno Valdez, herein

plaintiffs’ predecessor-in-interest, before the late Magdaleno Valdez purchased in 1935 from the late Feliciana

Santillan the land described in the Complaint where defendant’s railway tracks is traversing [sic] (TSN of

February 5, 1991, pp. 7-8). As to the continuity of defendant’s use of the strip of land as easement is [sic] also

manifest from the continuous and uninterrupted occupation of the questioned property from 1929 up to the date

of the filing of the instant Complaint. In view of the defendant’s UNINTERRUPTED possession of the strip of

land for more than fifity (50) years, the Supreme Court’s 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 question was 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 easement’s possession by the dominant estate was never

continuous. In the instant case however, there is clear continuity of defendant’s possession of the strip of land it

had been using as railway tracks. Because the railway tracks which defendant had constructed on the questioned

strip of land had been CONTINUOUSLY occupying said easement. Thus, defendant Bomedco’s apparent and

continuous possession of said strip of land in good faith for more than ten (10) years had made defendant owner

of said strip of land traversed by its railway tracks. Because the railway tracks which defendant had constructed

on the questioned strip of land had been continuously occupying said easement [sic]. Thus, defendant

Bomedco’s apparent and continuous possession of said strip of land in good faith for more than ten (10) years

had made defendant owner of said strip of land traversed by its railway tracks.

Respondent heirs elevated the case to the Court of Appeals which found that Bomedco did not acquire

ownership over the lot. It consequently reversed the trial court. In its decision dated November 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 Civil Code.

The appellate court further ruled that Bomedco’s claim of a prior sale to it by Feliciana Santillan was untrue. Its

possession being in bad faith, the applicable prescriptive period in order to acquire ownership over the land was

30 years under Article 1137 of the Civil Code. Adverse possession of the property started only in 1965 when

Bomedco registered its claim in the cadastral survey of Medellin. Since only 24 years from 1965 had elapsed

when the heirs filed a complaint against Bomedco in 1989, Bomedco’s 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 paid

compensation 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 March 22, 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 REVERSED AND

SET ASIDE THE TRIAL COURT’S DECISION DISMISSING PRIVATE RESPONDENT’S

COMPLAINT.

II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT ORDERED THE

PETITIONER TO PAY THE PRIVATE RESPONDENT THE REASONABLE VALUE OF LOT 954

AND THE AMOUNT OF TEN THOUSAND (P10,000.00) PESOS AS REASONABLE

ATTORNEY’S FEES.

Petitioner Bomedco reiterates its claim of ownership of the land through extraordinary acquisitive prescription

under Article 1137 of the Civil Code and laches to defeat the claim for compensation or recovery of possession

by respondent heirs. It also submits a third ground originally tendered by the trial court ― acquisition of the

easement of right of way by prescription under Article 620 of the Civil Code.

Extraordinary Acquisitive Prescription

Under Art. 1137 of the Civil Code

Petitioner’s claim of ownership through extraordinary acquisitive prescription under Article 1137 of the Civil

Code cannot be sustained.

There is no dispute that the controversial strip of land has been in the continuous possession of petitioner since

1929. But possession, to constitute the foundation of a prescriptive right, must be possession under a claim of

title, that is, it must be adverse.21

Unless coupled with the element of hostility 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 that an easement

of right of way was actually granted to petitioner for which reason the latter was able to occupy 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 to be "industrial land" as it did for the years

1975 and 1985.23

Instead of indicating ownership of the lot, these receipts showed that all petitioner had was

possession by virtue of the right of way granted to it. Were it not so and petitioner really owned the land,

petitioner would not have consistently used the phrases "central railroad right of way" and "sugar central

railroad right of way" in its tax declarations until 1963. Certainly an owner would have found no need for these

phrases. A person cannot have an easement on his own land, since all the uses of an easement are fully

comprehended in his general right of ownership.24

While it is true that, together with a person’s actual and adverse possession of the land, tax declarations

constitute strong evidence of ownership of the land occupied by him,25

this legal precept does 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 on his property, for the

benefit of another thing or person. It exists only when the servient and dominant estates belong to two different

owners. It gives the holder of the easement an incorporeal interest on the land but grants no title thereto.

Therefore, an acknowledgment of the easement is an admission that the property belongs to another.26

Having held the property by virtue of an easement, petitioner cannot now assert that its occupancy since 1929

was in the concept of an owner. Neither can it declare that the 30-year period of extraordinary acquisitive

prescription started from that year.

Petitioner, however, maintains that even if a servitude was merely imposed on the property in its favor, its

possession immediately became adverse to the owner in the late 1950’s when the grant was alleged by

respondent heirs to have expired. It stresses that, counting from the late 1950’s (1959 as found by the trial

court), the 30-year extraordinary acquisitive prescription had already set in 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 convert petitioner’s

possession into an adverse one. Mere material possession of land is not adverse possession as against the owner

and is insufficient to vest title, unless such possession is accompanied by the intent to possess as an owner.27

There should be a hostile use of such a nature and 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 an adverse

claim can be implied, its possession of the lot can only be presumed to have continued in the same character as

when it was acquired (that is, it possessed the land only by virtue of the original grant of the easement of right

of way),28

or was by mere license or tolerance of the owners (respondent heirs).29

It is a fundamental principle

of law in this jurisdiction that acts of possessory character executed by virtue of license or tolerance of the

owner, no matter how long, do not start the running of the period of prescription.30

After the grant of easement expired in 1959, petitioner never performed any act incompatible with the

ownership of respondent heirs over Cadastral Lot No. 954. On the contrary, until 1963, petitioner continued to

declare the "sugar central railroad right of way" in its realty tax receipts, thereby doubtlessly conceding the

ownership of respondent heirs. Respondents themselves were emphatic that they simply tolerated petitioner’s

continued use of Cadastral Lot No. 954 so as not to jeopardize the 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’ was when it filed a claim over the

property in 1965 during the cadastral survey of Medellin. Since then (1965) and until the filing of the complaint

for the recovery of the subject land before the RTC of Cebu in 1989, only 24 years had lapsed. Since the

required 30-year extraordinary prescriptive period had not yet been complied 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 that

constitutes laches. The essence of laches is the failure or neglect, for an unreasonable and unexplained length of

time, to do that which, through due diligence, could or should have been done earlier, thus giving rise to a

presumption that the party entitled to assert it had either abandoned or declined to assert it.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 complainant’s rights after he had knowledge of defendant’s

acts and after he has had the opportunity to sue; (c) lack of knowledge or notice by defendant that the

complainant will assert the right on which he bases his suit; and (d) injury or prejudice to the defendant in the

event the relief is accorded to the complainant.33

The second element (which in turn has three aspects) is lacking in the case at bar. These aspects are: (a)

knowledge of defendant's action, (b) opportunity to sue defendant after obtaining such knowledge and (c) delay

in the filing of such suit.34

Records show that respondent heirs only learned about petitioner’s claim on their property when they

discovered the inscription for the cadastral survey in the records of the Bureau of Lands in 1989. Respondents

lost no time in demanding an explanation for said claim in their letters to the petitioner dated March 1, 1989 and

April 6, 1989. When petitioner ignored them, they instituted their complaint before the Regional Trial Court of

Cebu City on June 8, 1989.

Petitioner’s reliance on Caro vs. Court of Appeals 35

and Vda. de Alberto vs. Court of Appeals 36

is misplaced.

There, laches was applied to bar petitioners from questioning the ownership of the disputed properties precisely

because they had knowledge of the adverse claims on their properties yet 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 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.37

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.

It is clear that petitioner never acquired ownership over Cadastral Lot No. 954 whether by extraordinary

acquisitive prescription or by laches.

Acquisition of Easement of Right of Way By

Prescription Under Art. 620 of the Civil Code

Petitioner contends that, even if it failed to acquire ownership of the subject land, it nevertheless became 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 ten years.

The trial court and the Court of Appeals both upheld this view for the reason that the railroad right of way was,

according to them, continuous and apparent in nature. The more or less permanent railroad tracks were visually

apparent and they continuously occupied the subject strip of land from 1959 (the year the easement granted by

Feliciana Santillan to petitioner expired). Thus, with the lapse of the 10-year prescriptive period in 1969,

petitioner supposedly acquired the easement of right 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. 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, an easement is continuous if its use is, or may be, incessant without the intervention of

any act of man, like the easement of drainage;38

and it is discontinuous if it is used at intervals and depends on

the act of man, like the easement of right of way.39

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.

The presence of more or less permanent railroad tracks does not in any way convert the nature of an 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 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.40

In Cuba, it has been held that the existence of a permanent railway does not make the right of way a continuous

one; it is only apparent. Therefore, it cannot be acquired by prescription.41

In Louisiana, it has also been held

that a right of passage over another's land cannot be claimed by prescription because this easement is

discontinuous and can be established only by title.42

In this case, the presence of railroad tracks for the passage of petitioner’s trains denotes the existence of an

apparent but discontinuous easement of right of way. And under Article 622 of the Civil Code, discontinuous

easements, whether apparent or not, may be acquired only by title. Unfortunately, petitioner Bomedco never

acquired any title over the use of the railroad right of way whether by law, donation, testamentary succession or

contract. Its use of the right of way, however long, never resulted in its acquisition of the easement because,

under Article 622, the discontinuous easement of a railroad right of way can only be acquired by title and not by

prescription.1âwphi1

To be sure, beginning 1959 when the original 30-year grant of right of way given to petitioner Bomedco

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 and the removal of the railroad

tracks, or, in the alternative, payment of compensation for the use thereof, petitioner Bomedco which had no

title to the land should have returned the possession thereof 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 easement of right of

way)? In at least two cases, we held that if: (a) it had subsequently entered into a contractual right of way with

the heirs for the continued use of the land under the principles of voluntary easements or (b) it had filed a case

against the heirs for conferment on it of a legal easement of right of way under Article 629 of the Civil Code,

then title over the use of the land is deemed to exist. The conferment of a legal easement of right of way under

Article 629 is subject to proof of the following:

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

(2) payment of proper indemnity;

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

(4) the right of way claimed is at the point least prejudicial to the servient estate, and, insofar as

consistent with this rule, the distance from the dominant estate to the highway is the shortest.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 the importance of the railway tracks

to its business. No doubt, it is unlawfully occupying and using the subject strip of land as a railroad right of way

without valid title yet it refuses to vacate it even after demand of the heirs. Furthermore, it tenaciously insists on

ownership thereof despite a clear showing to the contrary.

We thus uphold the grant by the Court of Appeals of attorney’s fees in the amount of P10,000 considering 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 and resolution 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 possession to the private respondents, the heirs of

Magdaleno Valdez, Sr. It is also hereby ordered to pay private respondents attorney's fees in the amount of

P10,000.

SO ORDERED.

Puno, (Chairman), Panganiban, and Carpio-Morales, JJ., concur.

Sandoval-Gutierrez, J., on official leave.

Footnotes

1 Penned by Associate Justice Celia Lipana-Reyes and concurred in by Associate Justices Alfredo L.

Benipayo and Corona Ibay-Somera.

2 Penned by Presiding Judge Benigno G. Gaviola.

3 Exhibit "A," Folder of Plaintiffs’ Exhibits, p. 1.

4 Exhibits "B," "B-1," "B-4" and "D," Folder of Plaintiffs’ Exhibits, pp. 2-4, 6.

5 Exhibit "H," Folder of Plaintiffs’ Exhibits, p. 11.

6 Exhibits "E" and "F," Id. at pp. 7, 8-9.

7 Records, pp. 1-7.

8 Exhibits "Y," Folder of Plaintiffs’ Exhibits, pp. 102-103.

9 Exhibit "A," Id. at p. 1.

10 Exhibits "B," "B1," "B2," "B3" and "B4," Id. at pp. 2-4.

11 Exhibit "C," Id. at p. 5.

12 Exhibit "D," Id. at p. 6.

13 Exhibit "1," Folder of Defendant’s Exhibits, pp. 8-9.

14 Exhibits "2," "3," "4," "5," "6," "7" and "8," Id. at pp. 10-15.

15 Exhibit "9," Id. at p. 17.

16 Exhibit "10," Id. at p. 18.

17 Exhibit "11," Id. at p. 19.

18 Exhibit "12," Id. at pp. 20-21.

19 Presiding Judge Benigno G. Gaviola.

20 Rollo, p. 39.

21 Ordoñez vs. Court of Appeals, 188 SCRA 109 [1990].

22 Cequeña vs. Bolante, 330 SCRA 216 [2000].

23 Folder of Defendant’s Offer of Exhibits, pp. 10-16.

24 Articles 428 and 437, Civil Code.

25 DBP vs. Court of Appeals, 331 SCRA 267 [2000]; Article 233, Civil Code.

26 2 Tolentino, Civil Code 353-354 [1992].

27 Compañia Agricula de Ultramar vs. Domingo, 6 Phil 246 [1906].

28 Article 529, Civil Code.

29 Manila Electric Company vs. IAC, 174 SCRA 313 [1989].

30 Article 1119, Civil Code.

31 Exhibit "Y," Records, pp. 102-103.

32 Españo vs. Court of Appeals, 268 SCRA 511[1997].

33 Avisado vs. Rumbaua, 354 SCRA 245 [2001].

34 Catholic Bishop of Balanga vs. CA, 264 SCRA 181 [1996].

35 180 SCRA 401[1989].

36 173 SCRA 436 [1989].

37 Villanueva vs. Court of Appeals, 330 SCRA 349 [2000].

38 3 Paras, Civil Code of the Philippines Annotated 597-598 (13th ed., 1994); Articles 615 and 646,

Civil Code.

39 Ibid.

40 Supra note 26, 358.

41 Ibid. at 365, citing Sentencia (Cuba) of December 14,1928.

42 Ibid., citing Broussard vs. Etie, 11 La. 394; Burgas vs. Stontz, 174 La. 586, 141 So. 67.

43 Bacolod-Murcia Milling Co., Inc., et. al. vs. Capital Subd. Inc., et. al., 124 SCRA 128 [1966];

Talisay-Silay Milling Co., Inc. vs. CFI of Negros Occidental, et. al., 149 SCRA 676 [1971].

44 Article 2208 (2) (5), Civil Code; Songcuan vs. Intermediate Appellate Court, 191 SCRA 1 [1990].

Republic of the Philippines

SUPREME COURT Manila

SECOND DIVISION

G.R. No. 80511 January 25, 1991

COSTABELLA CORPORATION, petitioner, vs. COURT OF APPEALS, KATIPUNAN LUMBER CO., INC., AURORA BUSTOS LOPEZ, MANUEL S. SATORRE, JR., JOSEFA C. REVILLES, FELIX TIUKINHOY, JR., PERFECTA L. CHUANGCO, and CESAR T. ESPINA, respondents.

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 certiorari of the decision 1 dated May 30, 1986 of the Court of Appeals,

2 which modified

the decision 3 rendered by the Regional Trial Court of Lapu-Lapu City in Cebu, is whether or not the private respondents

had acquired an easement of right of way, in the form of a passageway, on the petitioner's property.

It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122 and 5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it had constructed a resort and hotel. The private respondents, on the other hand, are the owners of adjoining properties more particularly known as Lots Nos. 5123-A and 5123-C of the Opon Cadastre.

Before the petitioner began the construction of its beach hotel, the private respondents, in going to and from their respective properties and the provincial road, passed through a passageway which traversed the petitioner's property. In 1981, the petitioner closed the aforementioned passageway when it began the construction of its hotel, but nonetheless opened another route across its property through which the private respondents, as in the past, were allowed to pass. (Later, or sometime in August, 1982, when it undertook the construction of the second phase of its beach hotel, the petitioner fenced its property thus closing even the alternative passageway and preventing the private respondents from traversing any part of it.)

As a direct consequence of these closures, an action for injunction with damages was filed against the petitioner by the private respondents on September 2, 1982 before the then Court of First Instance of Cebu.

4 In their complaint, the private

respondents assailed the petitioner's closure of the original passageway which they (private respondents) claimed to be an "ancient road right of way" that had been existing before World War II and since then had been used by them, the community, and the general public, either as pedestrians or by means of vehicles, in going to and coming from Lapu-Lapu City and other parts of the country. The private respondents averred that by closing the alleged road right of way in question, the petitioner had deprived them access to their properties and caused them damages.

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

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

5

In its answer, 6 the 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 the need to insure the safety and security of its hotel and beach resort, and for the protection of the privacy and convenience of its hotel patrons and guests. At any rate, the petitioner alleged, the private respondents were not entirely dependent on the subject passageway as they (private respondents) had another existing and adequate access to the public road through other properties. With respect to the dike it allegedly constructed, the petitioner stated that what it built was a breakwater on the foreshore land fronting its property and not a dike as claimed by the private respondents. Moreover, contrary to the private respondents' accusation, the said construction had benefitted the community especially the fishermen who used the same as mooring for their boats during low tide. The quantity of flotsam and debris which had formed on the private respondents' beach front on the other hand were but the natural and unavoidable accumulations on beaches by the action of the tides and movement of the waves of the sea. The petitioner's answer then assailed the private respondents' complaint for its failure to implead as defendants 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 quo rendered a decision on March 15, 1984 finding that the private respondents had acquired a vested right over the passageway in controversy based on its long existence and its continued use and enjoyment not only by the private respondents, but also by the community at large. The petitioner in so closing the said passageway, had accordingly violated the private respondents' vested right. Thus, the trial court ordered the petitioner:

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

2. To pay the plaintiff Katipunan Lumber Company, Inc. the amount of FIVE THOUSAND PESOS (P5,000.00) a month beginning January, 1983, and the plaintiff Perfecto Guangco the sum of TWO HUNDRED PESOS (P200.00) a month beginning September, 1982, representing their respective expenditures they had incurred in other beach resorts after the road was closed, until the passageway claimed by them is opened and made available to them, or if the defendant chooses to provide another road, until such road is made available and conveniently passable to 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 questioning the alleged "vested right" of the private respondents over the subject passageway, and the private respondents assailing the dismissal of their complaint insofar as their prayer for the demolition of the petitioner's "dike" is concerned.

In its decision, the respondent Appellate Court held as without basis the trial court's finding that the private respondents had acquired a vested right over the passageway in question by virtue of prescription.

9 The appellate court pointed out

that an easement of right of way is a discontinuous one which, under Article 622 of the New Civil Code, may only be acquired by virtue of a title and not by prescription.

10 That notwithstanding, the appellate court went on to rule that ". . . in

the interest of justice and in the exercise by this Court of its equity jurisdiction, there is no reason for Us in not treating the easement here sought by appellees Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is not dependent upon the claims of the parties but a compulsory one that is legally demandable by the owner of the dominant estate from the owner of the servient estate."

11 Thus the appellate court: (1) granted the private respondents the right to an easement of

way on the petitioner's property using the passageway in question, unless the petitioner should provide another passageway equally accessible and convenient as the one it closed; (2) remanded the case to the trial court for the determination of the just and proper indemnity to be paid to the petitioner by the private respondents for the said easement; and (3) set aside the 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 a resolution 13

denying the said motion. The Appellate Court however in denying the petitioner's motion for reconsideration stated that:

. . . While it is true that there is another outlet for the plaintiff to the main road, yet such outlet is a new road constructed in 1979, while the road closed by defendant existed since over 30 years before. Legally,

the old road could be closed; but since the existing outlet is inconvenient to the plaintiff, equitably the plaintiff should be given a chance to pay for a more convenient outlet through the land of the defendant at a point least prejudicial to the latter. In any event, the plaintiff shall pay for all damages that defendant corporation may sustain and the defendant regulates the manner of use of the right of way to protect defendant's property and its customers. This is the gist of Our decision.

14

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

The petition is meritorious.

It is already well-established that an easement of right of way, as is involved here, is discontinuous 15

and as such can not be acquired by prescription.

16 Insofar therefore as the appellate court adhered to the foregoing precepts, it stood correct.

Unfortunately, after making the correct pronouncement, the respondent Appellate Court did not order the reversal of the trial court's decision and the dismissal of the complaint after holding that no easement had been validly constituted over the petitioner's property. Instead, the Appellate Court went on to commit a reversible error by considering the passageway in issue as a compulsory easement which the private respondents, as owners of the "dominant" estate, may demand from the petitioner the latter being the owner of the "servient" estate.

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

Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity.

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

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

This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts.

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

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

17

Here, there is absent any showing that the private respondents had established the existence of the four requisites mandated by law. For one, they failed to prove that there is no adequate outlet from their respective properties to a public highway. On the contrary, as alleged by the petitioner in its answer to the complaint, and confirmed by the appellate court, "there is another outlet for the plaintiffs (private respondents) to the main road."

18 Thus, the respondent Court of Appeals

likewise admitted that "legally the old road could be closed."

19 Yet, it ordered the re- opening of the old passageway on the ground that "the existing outlet (the other outlet) is

inconvenient to the plaintiff." 20

On this score, it is apparent that the Court of Appeals lost sight of the fact that the convenience of the dominant estate has never been the gauge for the grant of compulsory right of way.

21 To be sure, the

true standard for the grant of the legal right is "adequacy." Hence, when there is already an existing adequate outlet from the dominant estate to a public highway, even if the said outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely unjustified. For to justify the imposition of an easement or right of way, "there must be a real, not a fictitious or artificial necessity for it."

22

Further, the private respondents failed to indicate in their complaint or even to manifest during the trial of the case that they were willing to indemnify fully the petitioner for the right of way to be established over its property. Neither have the private respondents been able to show that the isolation of their property was not due to their personal or their predecessors-in-interest's own acts. Finally, the private respondents failed to allege, much more introduce any evidence, that the passageway they seek to be re-opened is at a point least prejudicial to the petitioner. Considering that the petitioner operates a hotel and beach resort in its property, it must undeniably maintain a strict standard of security within its premises. Otherwise, the convenience, privacy, and safety of its clients and patrons would be compromised. That indubitably will doom the petitioner's business. It is therefore of great importance that the claimed 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 compulsory easement is demandable. Insofar therefore as the Appellate Court declared the case to be proper as a controversy for a compulsory right of way, this Court is constrained to hold that it was in error.

Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via of the Romans. 23

They are demanded by necessity, that is, to enable owners of isolated estates to make full use of their properties, which lack of access to public roads has denied them.

24 Under Article 649 of the Civil Code, they are compulsory and hence, legally

demandable, subject to indemnity and the concurrence of the other conditions above-referred to.

As also earlier indicated, there must be a real necessity therefor, and not mere convenience for the dominant estate. Hence, if there is an existing outlet, otherwise adequate, to the highway, the "dominant" estate can not demand a right of way, although the same may not be convenient. Of course, the question of when a particular passage may be said to be "adequate" depends on the circumstances of each case. Manresa, however, says: "In truth, not only the estate which absolutely does not possess it should be considered in this condition, but also that which does not have one sufficiently safe or serviceable; an estate bordering a public road through an inaccessible slope or precipice, is in fact isolated for all the effects of the easement requested by its owner. On the other hand, an estate which for any reason has necessarily lost its access to a public road during certain periods of the year is in the same condition. . . . There are some who propound the query as to whether the fact that a river flows between the estate and the public road should be considered as having the effect of isolating the estate. . . . If the river may be crossed conveniently at all times without the least danger, it cannot be said that the estate is isolated; in any other case, the answer is in the affirmative."

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 a right of way is necessary to fill a reasonable need therefor by the owner.

26 Thus, as Manresa had pointed out, if the passageway consists of an

"inaccessible slope or precipice," 27

it is as if there is no passageway, that is, one that can sufficiently fulfill the dominant owner's necessities, although by the existence of that passageway the property can not be truly said that the property is isolated. So also, while an existing right of way may have proved adequate at the start, the dominant owner's need may have changed since then, for which Article 651 of the Code allows adjustments as to width.

28

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

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 to establish what is the shortest; a longer way may be established to avoid injury to the servient tenement, such as when there are constuctions or walls which can be avoided by a roundabout way, or to secure the interest of the dominant owner, such as when the shortest distance would place the way on a dangerous decline."

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 the respondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby DISMISSED. Costs against the private respondents.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Footnotes

1 Ejercito, Bienvenido C., J., ponente, Coquia, Jorge R., and Castro-Bartolome, Floreliana, JJ., concurring; Rollo, 52-59.

2 The Court of Appeals was impleaded as a party respondent by virtue of the Court Resolution dated September 11, 1989.

3 Penned by Judge Teodoro K. Risos; Rollo, Id., 44-50.

4 Rollo, id., 11.

5 Id., 28-31.

6 Id., 12.

7 Id., 33-42.

8 Id., 50.

9 Id., 57.

10 Id.

11 Id., 58.

12 Id., 59.

13 Id., 61.

14 Id.

15 Ronquillo vs. Roco, 103 Phil. 84 (1958); Cuaycong vs. Benedicto, 37 Phil. 781 (1918).

16 CIVIL CODE, art. 622; Ronquillo vs. Roco, supra, Cuaycong vs. Benedicto, supra.

17 Locsin vs. Climaco, No. L-27319, January 31, 1969, 26 SCRA 816; Angela Estate, Inc. vs. Court of First Instance of Negros Occidental, No. L-27084, July 31, 1968, 24 SCRA 500; Bacolod-Murcia Milling Co., Inc. vs. Capitol Subdivision, No. L-25887, July 26, 1966, 17 SCRA 731.

18 Rollo, id., 61.

19 Id.

20 Id.

21 Rivera vs. Intermediate Appellate Court, No. 74249, January 20, 1989, 169 SCRA 307; Ramos, Sr. vs. Gatchalian Realty, Inc., No. 75905, October 12, 1987, 154 SCRA 703.

22 Ramos, Sr. vs. Gatchalian Realty, Inc., supra, 712; see also, II TOLENTINO, CIVIL CODE OF THE PHILIPPINES 371. (1972 ed.).

23 II FRANCISCO, CIVIL CODE OF THE PHILIPPINES, 787.

24 Id.

25 Id., 789.

26 Id., 790.

27 Id., 789.

28 Id., 790.

29 TOLENTINO, id., 373.

30 Id., 374.

Republic of the Philippines

SUPREME COURT Manila

EN BANC

G.R. No. L-14652 June 30, 1960

JUAN GARGANTOS, petitioner,

vs.

TAN YANON and THE COURT OF APPEALS, respondents.

Jose T. Nery for petitioner.

Constantino P. Tadena for respondents.

GUTIERREZ DAVID, J.:

Juan Gargantos appeals by certiorari from the decision of the Court of Appeals reversing the judgment of the

Court of First Instance of Romblon.

The record discloses that the late Francisco Sanz was the former owner of a parcel of land containing 888

square meters, with the buildings and improvements thereon, situated in the poblacion of Romblon. He

subdivided the lot into three and then sold each portion to different persons. One portion was purchased by

Guillermo Tengtio who subsequently sold it to Vicente Uy Veza. Another portion, with the house of strong

materials thereon, was sold in 1927 to Tan Yanon, respondent herein. This house has on its northeastern side,

doors and windows over-looking the third portion, which, together with the camarin and small building thereon,

after passing through several hands, was finally acquired by Juan Gargantos, petitioner herein.

On April 23, 1955, Gargantos applied to the Municipal Mayor for a permit to demolish the roofing of the old

camarin. The permit having been granted, Gargantos tore down the roof of the camarin. On May 11, 1955,

Gargantos asked the Municipal Council of Romblon for another permit, this time in order to construct a

combined residential house and warehouse on his lot. Tan Yanon opposed approval of this application.

Because both the provincial fiscal and district engineer of Romblon recommended granting of the building

permit to Gargantos, Tan Yanon filed against Gargantos an action to restrain him from constructing a building

that would prevent plaintiff from receiving light and enjoying the view trough the window of his house, unless

such building is erected at a distance of not less than three meters from the boundary line between the lots of

plaintiff and defendant, and to enjoin the members of Municipal Council of Romblon from issuing the

corresponding building permit to defendant. The case as against the members of the Municipal Council was

subsequently dismissed with concurrence of plaintiff's council. After trial, the Court of First Instance of

Romblon rendered judgment dismissing the complaint and ordering plaintiff to pay defendant the sum of

P12,500.00 by way of compensatory, exemplary, moral and moderate damages.

On appeal, the Court of Appeals set aside the decision of the Court of First Instance of Romblon and enjoined

defendant from constructing his building unless "he erects the same at a distance of not less than three meters

from the boundary line of his property, in conformity with Article 673 of the New Civil Code."

So Juan Gargantos filed this petition for review of the appellate Court's decision. The focal issue herein is

whether the property of respondent Tan Yanon has an easement of light and view against the property of

petitioner Gargantos.

The kernel of petitioner's argument is that respondent never acquired any easement either by title or by

prescription. Assuredly, there is no deed establishing an easement. Likewise, neither petitioner nor his

predecessors-in-interest have ever executed any deed whereby they recognized the existence of the easement,

nor has there been final judgment to that effect. Invoking our decision in Cortes vs. Yu-Tibo (2 Phil., 24),

petitioner maintains that respondent has not acquired an easement by prescription because he has never formally

forbidden petitioner from performing any act which would be lawful without the easement, hence the

prescriptive period never started.

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

are not applicable herein because the two estates, that now owned by petitioner, and that owner by respondent,

were formerly owned by just one person, Francisco Sanz. It was Sanz who introduced improvements on both

properties. On that portion presently belonging to respondent, he constructed a house in such a way that the

northeastern side thereof extends to the wall of the camarin on the portion now belonging to petitioner. On said

northeastern side of the house, there are windows and doors which serve as passages for light and view. These

windows and doors were in existence when respondent purchased the house and lot from Sanz. The deed sale

did not provide that the easement of light and view would not be established. This then is precisely the case

covered by Article 541, O.C.C (now Article 624, N.C.C) which provides that the existence of an apparent sign

of easement between two estates, established by the proprietor of both, shall be considered, if one of them is

alienated, as a title so that the easement will continue actively and passively, unless at the time the ownership of

the two estate is divided, the contrary is stated in the deed of alienation of either of them, or the sign is made to

disappear before the instrument is executed. The existence of the doors and windows on the northeastern side of

the aforementioned house, is equivalent to a title, for the visible and permanent sign of an easement is the title

that characterizes its existence (Amor vs. Florentino, 74 Phil., 403). It should be noted, however, that while the

law declares that the easement is to "continue" the easement actually arises for the first time only upon

alienation of either estate, inasmuch as before that time there is no easement to speak of, there being but one

owner of both estates (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's property.

By reason of his easement petitioner cannot construct on his land any building unless he erects it at a distance of

not less than three meters from the boundary line separating the two estates.

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

Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., and Barrera, JJ.,

concur.

Republic of the Philippines

SUPREME COURT Manila

SECOND DIVISION

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

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

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. Juanita A. Bernad on 5 December 1983, which dismissed the complaint for legal redemption filed by the petitioner in Civil Case No. CEB-994 of the Regional Trial Court of Cebu, and the Order of the same respondent judge, dated 20 January 1984, which denied petitioner's motion for reconsideration.

The facts, in brief, are as follows:

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

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

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

2

Antonio Cardenas further agreed that he would sell Lot 7501-B only to Eduardo Tañedo in case he should decide to sell it, as the septic tank in Lot 7501-B services Lot 7501-A and the apartment building on Lot 7501-A has a part standing on Lot 7501-B. This was confirmed in a letter, dated 26 February 1982, wherein Antonio Cardenas asked Tañedo not to deduct the mortgage loan of P10,000.00 from the purchase price of Lot 7501-A "because as we have previously agreed, I will sell to you Lot 7501-B."

3

Antonio Cardenas, however, sold Lot 7501-B to the herein respondent spouses Romeo and Pacita Sim. 4 Upon learning

of the sale, Eduardo Tañedo offered to redeem the property from Romeo Sim. But the latter refused. Instead, Romeo Sim blocked the sewage pipe connecting the building of Eduardo Tañedo built on Lot 7501-A, to the septic tank in Lot 7501-B. He also asked Tañedo to remove that portion of his building enroaching on Lot 7501-B. As a result, Eduardo Tañedo, invoking the provisions of Art. 1622 of the Civil Code, filed an action for legal redemption and damages, with a prayer for the issuance of a writ of preliminary injunction, before the Regional Trial Court of Cebu, docketed therein as Civil Case No. CEB-994, against the spouses Romeo and Pacita Sim, Antonio Cardenas and his wife Mae Linda Cardenas, the Register of Deeds of Cebu City, and Banco Cebuano, Cebu City Development Bank.

5

Answering, the spouses Romeo and Pacita Sim claimed that they are the absolute owners of Lot 7501-B and that Eduardo Tañedo has no right to redeem the land under Art. 1622 of the Civil Code as the land sought to be redeemed is much bigger than the land owned by Tañedo.

6

Antonio Cardenas, upon the other hand, admitted that he had agreed to sell Lot 7501-B to Eduardo Tañedo and claimed by way of cross-claim against the spouses Romeo and Pacita Sim that the Deed of Sale he had executed in favor of said spouses was only intended as an equitable mortgage, to secure the payment of amounts received by him from said spouses as petty loans .

7

In answer to the cross-claim, the spouses Romeo and Pacita Sim insisted that the sale executed by Antonio Cardenas of Lot 7501-B in their favor was an absolute one.

8

Thereafter, or on 14 October 1983, the spouses Romeo and Pacita Sim filed motions to dismiss the complaint and the cross-claim, for lack of cause of action.

9

Acting upon these motions and other incidental motions, the respondent judge issued the questioned order of 5 December 1983 dismissing the complaint and cross-claim.

10

Tañedo filed a motion for reconsideration of the order, but his motion was denied on 20 January 1984. 11

Hence, the present recourse by petitioner Tanedo.

The Court finds merit in the petition. The dismissal of the complaint on the ground of lack of cause of action, is precipitate. The settled rule where dismissal of an action is sought on the ground that the complaint does not state a cause of action is, that the insufficiency of the cause of action must appear on the face of the complaint. And the test of the sufficiency of the ultimate facts alleged in the complaint to constitute a cause of action, is whether or not, admitting the facts alleged, the court can render a valid judgment upon the same in accordance with the prayer of the complaint. For this purpose, the movant is deemed to admit hypothetically the truth of the facts thus averred.

12

In the instant case, it cannot be denied that petitioner Tanedo cannot redeem the entire Lot 7501-B from the spouses Romeo and Pacita Sim pursuant to the provisions of Art. 1622 Romeo and Pacita Sim pursuant to the provisions of Art. 1622 of the Civil Code, since the lot sought to be redeemed, has an area of 612 square meters which is much bigger, area-wise, than the lot owned by petitioner Tañedo. However, the petitioner seeks to purchase only that small portion of Lot 7501-B occupied by his apartment building, because the spouses Romeo and Pacita Sim had told him to remove that portion of his building which enroaches upon Lot 7501-B. Whether or not this is possible should have been determined at the pre-trial stage or trial on the merits.

Besides, the action of petitioner Tañedo is also one for recovery of damages by reason of breach of promise by the respondent Antonio Cardenas to sell Lot 7501-B. Paragraphs 3 and 4 of the amended complaint read, as follows:

3. That by written agreement, plaintiff and defendant spouses Antonio Cardenas and Mae Linda Cardenas agreed that in the event they decide to sell the adjacent Lot No. 7501-B of the subdivision plan (LRC) Psd. 23638, a portion of Lot No. 7501 of the cadastral survey of Cebu, LRC (GLRC) Cad. Record No. 9465, situated in the City of Cebu, containing an area of SIX HUNDRED TWELVE (612) Square meters more or less which lot is adjacent to Lot No. 7501-A of the plaintiff and where part of the plaintiffs apartment is standing on, the same should be sold to the plaintiff, but far from compliance of the written agreement, defendant spouses Antonio Cardenas and Mae Linda Cardenas sureptiously [sic] sold the aforestated Lot No. -7501-B- to the defendant spouses, Romeo Sim and Pacita Sim on July 23, 1982 as per Deed of Sale notarized by Notary Public, Jorge S. Omega and entered in his Notarial Register as Doc. No. 462; Page No. -94- Book No. 11, Series of 1982;

4. That due to the sale by the defendant spouses Antonio Cardenas and Mae Linda Cardenas of the property in question to spouses Romeo Sim and Pacita Lim, plaintiff suffered moral damages in the form of mental anguish, sleepless nights, mental torture, for which he is entitled to a compensation in the amount to be established during the trial of the case and has incurred litigation expenses subject for reimbursentent and attorneys fee in the sum of P10,000.00 which should be chargeable to both defendant spouses;

13

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

14

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

ALLEGATIONS as to written agreement is ADMITTED, but, specifically denies that herein defendants SUREPTIOUSLY [sic] SOLD the lot in question to the other defendant Spouses Sim the truth is, that the herein defendants [sic] was required to execute the Deed of Sale described in this paragraph 3 as security for the personal loans and other forms of indebtedness incurred from the Spouses Sims but never as a conveyance to transfer ownership;

15

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

Moreover, the finding of the trial court that petitioner Tañedo's right to continue to use the septic tank, erected on Lot 7501-B, ceased upon the subdivision of the land and its subsequent sale to different owners who do not have the same interest,

16 also appears to be contrary to law. Article 631 of the Civil Code enumerates the grounds for the extinguishment

of an easement. Said article provides:

Art. 631. Easements are extinguished:

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

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

(3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number;

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

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

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

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

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

In the instant case, no statement abolishing or extinguishing the easement of drainage was mentioned in the deed of sale of Lot 7501-A to Eduardo Tañedo. Nor did Antonio Cardenas stop the use of the drain pipe and septic tank by the occupants of Lot 7501-A before he sold said lot to Eduardo Tafiedo. Hence, the use of the septic tank is continued by operation of law. Accordingly, the spouses Romeo and Pacita Sim the new owners of the servient estate (Lot 7501- B), cannot impair, in any manner whatsoever, the use of the servitude.

17

WHEREFORE, the Orders complained of are hereby REVERSED and SET ASIDE. The respondent judge or another one designated in his place is directed to proceed with the trial of this case on the merits. With costs against private respondents.

SO ORDERED.

Melencio-Herrera, Paras, Sarmiento and Regalado, JJ., concur.

Footnotes

1 Amended Complaint, par. 2, Original Record, p. 7.

2 Original Record, p. 32.

3 Rollo, pp, 28-29.

4 Id., p. 30.

5 Original Record, p. 1.

6 Original Record, p. 19.

7 Id., p. 24.

8 Id., p. 49.

9 Id., p. 87, 91.

10 Rollo, p. 32.

11 Id., p. 43.

12 Azur vs. Prov. Board, G.R. No. L-22333, Feb. 27, 1969, 27 SCRA 50.

13 Original Record, p. 8.

14 Id.,p. 10.

15 Id.,p. 24.

16 Id.,p. 124.

17 Art. 629, Civil Code.