Republic of the Philippines REGIONAL TRIAL COURT Ninth Judicial Region BRANCH 30 Aurora, Zamboanga del Sur 7020

FLAVIANA T. PADIGOS, Plaintiff, -versusBrgy Captain Cerilo Tumala Brgy.Kag. Reny Vender Brgy.Kag. Lorna Tubigon Brgy. Kag. Joel Davis Brgy. Kag. Rogelio Callura Sr. Brgy. Kag. Olegario Jumawid Brgy. Kag. Jimmy Davis Necomedez Vender & Fortunato Vender Defendants. x---------------------------------------------x

CIVIL CASE NO. AZ-20,645 For: Easement of Right of Way Injunction and Damages with Prayer for a Writ of Preliminary Mandatory Injunction

MOTION FOR PRELIMINARY HEARING ON AFFIRMATIVE AND SPECIAL DEFENSES

Defendants, through counsel and to this Honorable Court, respectfully file this Motion and state: 1. That in their answer dated 03 July 2013, defendants alleged as affirmative and special defense the fact that complainants pleading asserting her claim for legal easement right of way states NO CAUSE OF ACTION. DISCUSSION The complaint filed by the herein plaintiff should be dismissed for failure to state a cause of action. Unfortunately, the plaintiff failed to prove that she and her family have no other access and/or adequate passage in going to the barangay road other than through the property of the herein defendants. The plaintiff likewise failed to allege and prove that the right of way claimed by the former is the shortest way in going to the road. Contrary to her claim, herein plaintiff and her family have other adequate access or passage to the barangay road

Article 649 of the New Civil Code of the Philippines (NCC), provides: Article 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. xxx Under the above-cited article, to be entitled for legal easement right of way, the following requisites must concur: a) That the dominant estate is surrounded by other immovable and has NO adequate outlet to a public highway (Art. 649, par. 1, CC); b) There is payment of proper indemnity (Art. 649, last par., CC); c) The isolation is not due to the acts of the proprietor of the dominant estate (Art. 649, last par., CC); d) The right of way claimed is at the point least prejudicial to the servient estate; and e) In so far as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest (Art. 650); In the present case, the plaintiff profusely failed to satisfy the abovementioned requisites. On the contrary, however, the property of the plaintiff is firstly, not surrounded by other immovable and secondly, she and her family definitely also have adequate outlet or access going to the barangay road. As admitted by the plaintiff in her complaint found in paragraph 10 and I quote: they were oppressively prevented to pass through or even on the side of the same basketball court, the plaintiff and her family decided to make a circuitous road from their farm house towards NorthWestern part of their land passing at the back of the Barangay Public Market xxx From the words of the plaintiff, it is crystal clear that the plaintiff has another access going to the barangay road. The problem of the plaintiff seems to be that the said access going to the barangay road is

inconvenient for her and her caretaker because it is quite far than the usual route in going to the barangay road. Clearly, plaintiff is asking for legal easement right of way from the property of the defendants for CONVENIENCE purposes only. In the case of Remigio Ramos, Sr. vs. Gatchalian Realty, Inc. with G.R. No. 75905, the Supreme Court ruled that: To allow the petitioner access to Sucat Road through Gatchalian Avenue inspite of a road right of way provided by the petitioner's subdivision for its buyers simply because Gatchalian Avenue allows petitioner a much greater ease in going to and coming from the main thoroughfare is to completely ignore what jurisprudence has consistently maintained through the years regarding an easement of a right of way, that "mere convenience for the dominant estate is not enough to serve as its basis. To justify the imposition of this servitude, there must be a real, not a fictitious or artificial, necessity for it." The same doctrine was reiterated in the 1998 case of Cristobal et.al. vs. CA, G.R. No. 125339, Supreme Court states that: The convenience of the dominant estate has never been the gauge for the grant of compulsory right of way. 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, as in this case, even when the said outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely unjustified. xxx We find petitioners' concept of what is "adequate outlet" a complete disregard of the well-entrenched doctrine that in order to justify the imposition of an easement of right of way there must be a real, not fictitious or artificial, necessity for it. Mere convenience for the dominant estate is not what is required by law as the basis for setting up a compulsory easement. Even in the face of necessity, if it can be satisfied without imposing the easement, the same should not be imposed. As an owner of a dominant estate, it is incumbent upon the plaintiff to prove, by clear and convincing evidence , that she has no other access and adequate passage in going to the barangay road other than through the property of the herein defendants.

In the case of Crispin Dichoso et.al. vs. Patrocinio Marcos, G.R. No. 180282, dated April 11, 2011, Supreme Court stated: It is incumbent upon the owner of the dominant estate to establish by clear and convincing evidence the presence of all the preconditions before his claim for easement of right of way may be granted. xxx The Supreme Court, in the same case, went further by saying: Well-entrenched doctrine that in order to justify the imposition of an easement of right of way, there must be real, not fictitious or artificial, necessity for it. Mere convenience for the dominant estate is not what is required by law as the basis of setting up a compulsory easement. Even in the face of necessity, if it can be satisfied without imposing the easement, the same should not be imposed. xxx Considering the above arguments, it is very clear that plaintiff filed a malicious and baseless complaint despite the fact that she knew that she and her family have another access in going in and out from their property. Verily, the filing of this complaint is intended obviously to harass the herein defendants in order to succumb to her demand of not fencing the property own by the defendants so that she and her family could pass thereon, as it is her most CONVENIENT way of going in and out of her property. Unfortunately for her, mere convenience is not a legal criterion in an easement right of way. Granting that the plaintiff is willing to pay the fair market value of the defendants property, such willingness is now immaterial to justify her demand because she is not entitled to an easement right of way in the first place. It is worthy to stress that a cause of action involves a right of the plaintiff and a violation of this right by the defendant. Without a right and a violation of this right, there can be no cause of action. And without this cause of action there would be right to file a suit against the defendants. Hence, plaintiff has no right to demand for a legal easement right of way due to the very reason that the property own by the plaintiff has an access to the barangay road and her property is not a land lock or not surrounded by other property with no outlet. PRAYER

WHEREFORE, defendants pray that the complaint be dismissed for lack of merit, and for such other reliefs as may be just and equitable in the premises. RESPECTFULLY SUBMITTED. July ___, 2013 at Pagadian City, Philippines.

ATTY. DEONHAR M. CENIZA Counsel for the Defendants IBP NO. 8575661/4/12 Pagadian City Roll No. 57505 MCLE Compliance No. IV-0003876 National Highway, Poblacion, Aurora, Zamboanga del Sur

NOTICE OF HEARING
The Clerk of Court Regional Trial Court, Branch 30 Aurora, Zamboanga del Sur Sir/Madam: GREETINGS. Kindly submit the foregoing for kind consideration and approval of the Honorable Court without further oral arguments of the herein counsel.

Atty. Deonhar M. Ceniza Counsel for the Defendant

Copy Furnished by Registered Mail: FLAVIANA T. PADIGOS Registry Receipt No. _____________ Date: _______________________

EXPLANATION In compliance with the Rules on the Service of Pleadings, a copy of this motion is furnished to the petitioner via registered mail due to lack of personnel and due to the distance between petitioner and the respondents counsels address.

DEONHAR M. CENIZA

Republic of the Philippines ) Pagadian City ) S.S x-----------------------------------------x AFFIDAVIT OF SERVICE I, EDMAR EISMA, of legal age, Filipino citizen, single and a resident of Balangasan District, Pagadian City, Philippines, under oath and avers: 1. That I am one the messenger of Atty. Deonhar M. Ceniza and my function is to serve pleadings and documents emanating from aforesaid lawyer; 2. On this day, I filed a copy of this Motion before the Honorable Court, Branch 30, Aurora, Zamboanga del Sur and to the plaintiff, who is a resident of Poblacion, Sominot, Zamboanga del Sur by registered mail. IN WITNESS HEREOF, I hereunto set my hand this ___ day of July, 2013 at Pagadian City, Philippines.

EDMAR EISMA Affiant Employees ID No. ZDS-02353N SUBSCRIBED AND SWORN to before me this ___ day of July, 2013 affiant personally appeared to me to be the same person.

Doc. No. _______ Page No. _______ Book No. _______ Series of 2013
Copy Furnished by Registered Mail: ATTY. ROBERTO PAGARA Magsaysay St. Molave, Zamboanga del Sur

ATTY. DEONHAR M. CENIZA Notary Public Until December 31, 2013 IBP Lifetime Member No. 011227 PTR NO. 7012965 1/2/13 Roll No. 57505 MCLE Compliance No. IV-0003876 National Highway, Poblacion, Aurora Zamboanga del Sur
Registry Receipt No. ____________________ Date: ________________________________

FLAVIANA T. PADIGOS Poblacion, Sominot, Zamboanga del Sur

Registry Receipt No. ______________ Date: ___________________________