BORBAJO vs.

HIDDEN VIEW HOMEOWNERS, INC

Jose C. Bontuyan (Bontuyan), Lucy Solon, Georgina Solon, Helen Solon
and Vicente Solon, Jr. (the Solons) were the registered owners of a parcel of
agricultural land (Lot 10183-A), covering an area of 13,910 square meters
situated at Barangay Bacayan, Cebu City as evidenced by Transfer
Certificate of Title (TCT) No. 73709 of the Register of Deeds of Cebu City.[3]At
the instance of Bontuyan, the property was surveyed on 19 May 1991 to
convert it into a subdivision. On 6 June 1991, the corresponding subdivision
plan, showing three (3) road lots as such, was submitted to the Cebu Office
of the Department of Environment and Natural Resources (DENR). On 24
July 1991, the Regional Technical Director of the DENR, Lands Management
Sector, Region Office VII, in Cebu, approved the subdivision
plan.[4] Meanwhile, in his own behalf and as attorney-in-fact of the Solons and
following the subdivision scheme in the plan, Bontuyan sold the resulting lots
to different individuals,[5] as evidenced by the Deed of Absolute Sale[6] dated
18 June 1991.
Among the lots sold are the ones which later became the subject of this
case, the three (3) road lots. The road lots were sold to petitioner Felicitacion
B. Borbajo, married to Danilo S. Borbajo, and Prescillana B. Bongo (Bongo),
married to Patricio P. Bongo.[7] However, they obtained the titles to the lots
more than a month later on 30 July 1991.[8]
Using the advance payments of his lot purchasers, Bontuyan proceeded
to develop a subdivision which was later named Hidden View Subdivision I by
its residents and homeowners.[9]Later, he applied for and secured from the
Housing and Land Use Regulatory Board (HLURB) a License to Sell[10] dated
29 July 1991.
Borbajo also decided to develop into a subdivision the other properties
adjacent to Hidden View Subdivision I which she acquired. Thus, she applied
for and received SSA 674-5-94 issued by the Cebu City Planning and
Development Department, covering the parcel of land embraced by TCT No.
127642, to be subdivided into twenty-three (23) lots.[11] She named this new
subdivision ST Ville Properties. On 29 July 1994, she secured Certificate of
Registration No. 05005 for the ST Ville Properties project and a License to
Sell the same from the HLURB. She also secured a Certificate of Registration
dated 18 August 1994 for another subdivision project called Hidden View
Subdivision II from the HLURB, with the corresponding License to Sell issued
on 16 August 1994. The two new subdivision projects were located at the
back of Hidden View Subdivision I.
The residents and homeowners of Hidden View Subdivision I heard
reports to the effect that Borbajo had purchased the entire subdivision from
Bontuyan through an oral agreement. They also heard that they have no right
to use the road lots, since the lots have already been registered in Borbajos
name. As a consequence, the Hidden View Homeowners, Inc. invited Borbajo
to a meeting. When confronted by the homeowners about her claim that she
had bought the subdivision from Bontuyan, Borbajo confirmed her claim of
ownership over the subdivision and the road lots. She also told them that they
have no right regarding the road right-of-way.[12]
The incident prompted the homeowners of Hidden View Subdivision I to
inquire with the HLURB about the validity of the registration of the subdivision
road lots in the name of Borbajo. They also asked whether she had the
necessary documents for the development of Hidden View Subdivision
II and ST Ville Properties. In a letter[13] dated 17 March 1997, HLURB
Regional Officer Antonio Decatoria, Sr. replied that under the law the owner
or developer of the subdivision should have legal title or right over the road
lots of the subdivision and that if the title or right is in the name of other
persons it follows that there is failure to comply with the requirements of the
law. The HLURB Officer pointed out that Hidden View Subdivision II and ST
Ville Properties had not filed an application for registration and license to sell
with the HLURB.[14]
On 10 August 1997, the homeowners caused the construction of a
guardhouse at the entrance of Hidden View Subdivision I and hired the
services of a security guard to prevent unauthorized persons and construction
vehicles from passing through their subdivision. The measures adversely
affected the residents of the subdivisions at the back, as well as Borbajo
herself since her delivery trucks and heavy equipment used in the
construction of her housing projects then on-going had been effectively
prevented from passing through the road lots.[15]
On 28 August 1997, Borbajo filed before the RTC of Cebu City, Branch
58, an action for damages and injunction against Hidden View Homeowners,
Inc., spouses Marcelina A. Sarcon and Ely D. Sarcon, Roberto Alvarez and
Corazon Nombrado and Gilbert Andrales (respondents herein). Borbajo
prayed for the issuance of a temporary restraining order (TRO) directing
respondents to maintain the status quo and to desist from preventing her
delivery trucks and other construction vehicles, and her construction workers,
from passing through the road lots, and, after hearing on the merits, that
judgment be rendered making the restraining order or preliminary injunction
permanent and ordering the defendants to pay damages.[16]
The trial court issued a TRO effective for seventy-two (72) hours. After due
hearing, it also granted Borbajos application for a writ of preliminary
injunction. It denied respondents motion to dismiss on the ground that it is the
HLURB which has jurisdiction over the case.[17]
After trial, the trial court rendered its decision dated 14 September 1999,
the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered enjoining the

defendants to close [sic] the road lots in question, hence, making the injunction
permanent, subject to the right of the defendants to regulate the passage thereof by
the plaintiff and the general public; and directing the plaintiff to donate the road lots
in question to the government of Cebu City. No pronouncement as to any damages
and as to costs.

SO ORDERED.[18]

On appeal, the Court of Appeals reversed the lower court decision. The
decretal portion of the appellate courts decision dated 21 September 2001
reads:
WHEREFORE, premises considered, the present appeal is hereby GRANTED. The
appealed Decision in Civil Case No. CEB-20796 is hereby REVERSED and SET
ASIDE and a new one is hereby rendered DISMISSING the complaint. The
counterclaim of defendants-appellants is likewise dismissed for lack of legal and
factual bases.

No pronouncement as to costs.

SO ORDERED.[19]

Undaunted, Borbajo elevated the case to this Court.

In her petition, Borbajo imputes error to the appellate court (a) in reversing
the decision of the trial court which declared her to be the developer of Hidden
View Subdivision I, (b) in finding that she had fraudulently secured the
registration of the three (3) road lots, and (c) in declaring that she is not
entitled to the injunctive relief.[20]
Borbajo contends that the appellate court erred in reversing the finding of
the RTC that she is the developer of Hidden View Subdivision I. According to
her, and as borne out by her testimony before the RTC, she was the true
developer of Hidden View Subdivision I even though the License to Sell was
issued in the name of Bontuyan. The appellate court allegedly violated
prevailing jurisprudence when it held that she fraudulently secured the
registration of the three (3) road lots since a certificate of title cannot be
collaterally attacked except in direct proceedings instituted for that purpose.
In fact, Hidden View Homeowners, Inc. has filed a separate case for
annulment of title against Borbajo which is now pending before Branch 9 of
the RTC of Cebu City. Further, she claims that she is entitled to the injunctive
relief considering that she is the registered owner of these road lots in
question and, hence, she has a right in essewhich deserves legal
protection.[21]
On the other hand, respondents argue that the sale of the road lots made
by Bontuyan in favor of Borbajo was illegal and contrary to the provisions of
Presidential Decree (P.D.) No. 957 which requires that the road lots in a
subdivision development shall be in the name of the developer or owner, of
which Borbajo is neither.[22] They aver that Borbajo fraudulently obtained her
titles to the road lots through a falsified deed of sale which was the document
presented to the Office of the Register of Deeds. [23] They also point out that
the use by Borbajo of the road lots for the ingress and egress of heavy
equipment has continuously resulted in the rapid deterioration of the roads.
Moreover, the road lots are not the nearest point between the development
project of Borbajo and the provincial road.[24] Finally, they assert that they are
merely exercising acts of ownership which include the right to prevent others
from enjoying the thing owned by them. Respondents oppose the issuance
of a preliminary injunction because notwithstanding the registration of the
subject road in Borbajos name, her title thereto is tainted by the discovery of
fraud she allegedly perpetrated in securing the questioned titles. [25]
The result which Borbajo seeks to achieve which is to reinstate the
preliminary injunction issued by the lower court has to be granted, but not for
the reasons which she has raised nor for the grounds which the lower court
relied upon.
 The ultimate question for resolution is whether respondents may legally
prevent Borbajo from using and passing through the three (3) road lots
within Hidden View Subdivision I. It is worthy of note that the right of
respondents to use the road lots themselves is not in dispute.
In resolving the controversy, the lower court addressed only the issue of
whether respondents have the right to close the road lots, and the question
of damages.[26] It concluded that respondents cannot legally close the road
lots because these are intended for public use. It opted not to resolve the
question pertaining to the validity of Borbajos acquisition of the road lots and
her title thereto on the ground that a Torrens title cannot be collaterally
attacked.[27]
For its part, the Court of Appeals addressed the trial courts errors assigned
by the respondents herein. The trial court allegedly erred in: (a) finding that
Borbajo was the developer of Hidden View Subdivision I; (b) finding that the
manner by which Borbajo acquired the road lots is irrelevant to the resolution
of the issues in this case; (c) finding that the road lots are open to the public
and the only right of the residents therein is to regulate its use; (d) not finding
that the elements of an easement of a right-of-way are not present; (e) finding
that the injunction was properly issued and the court ordered Borbajo to
donate the road lots in favor of the local government unit; and (f) failing to
award damages to the respondents.[28]
The appellate court found that the injunctive writ was erroneously issued
as the same was not based on an actual right sought to be protected by law.
The fact that Borbajo was the developer of Hidden View Subdivision I was
not clearly established by evidence. Although Borbajo has claimed that she
was the developer of the subdivision and that Bontuyans name was indicated
in the License to Sell, such claim carried scant weight in the absence of a
certificate of registration of the subdivision project issued in her name by the
HLURB and other documents which prove that she was indeed the
developer.[29] Further, the appellate court ruled that the fact of registration of
the road lots in Borbajos name was insufficient to defeat the right of the
homeowners of the subdivision and preclude them from regulating their use
and administration thereof in accordance with existing laws and
regulations.[30] It likewise held that Borbajo had not complied with the
requisites of a compulsory easement of right-of-way and pointed out the
general rule that mere convenience for the dominant estate is not what is
required by law as the basis for setting up a compulsory easement. [31] Hence,
this instant judicial recourse.
Noticeably, the appellate court dwelt at length on the question of whether
Borbajo was the developer of the Hidden View Subdivision I as she claimed.
Apparently, Borbajo submitted this point, with her focus set on the provisions
of P.D. No. 957, as amended, ordaining that road lots may be titled only in
the name of the owner of the subdivision or its developer. In the process,
however, the Court of Appeals lost sight of the settled and decisive fact that
Borbajo is one of the registered co-owners of the road lots along with Bongo.
The evidence reveals that Borbajo and Bongo were issued TCTs, all dated
30 July 1991, for the three (3) road lots situated within the Hidden View
Subdivision I. These titles were issued pursuant to the Deed of Absolute
Sale dated 18 June 1991 which also mentioned the road lots as such.
As a registered co-owner of the road lots, Borbajo is entitled to avail of all
the attributes of ownership under the Civil Codejus utendi, fruendi, abutendi,
disponendi et vindicandi.[32]Article 428 of the New Civil Code is explicit that
the owner has the right to enjoy and dispose of a thing, without other
limitations than those established by law. A co-owner, such as Borbajo, is
entitled to use the property owned in common under Article 486 of the Civil
Code. Therefore, respondents cannot close the road lots to prevent Borbajo
from using the same.
The Court of Appeals ruled that the road lots cannot be sold to any person
pursuant to P.D. No. 957, as amended. It also pointed out that fraud is
manifest in the acquisition of titles thereto. However, it is a settled rule that a
Torrens title cannot be collaterally attacked.
It is a well-known doctrine that the issue as to whether title was procured
by falsification or fraud can only be raised in an action expressly instituted for
the purpose. A Torrens title can be attacked only for fraud, within one year
after the date of the issuance of the decree of registration. Such attack must
be direct, and not by a collateral proceeding. The title represented by the
certificate cannot be changed, altered, modified, enlarged, or diminished in a
collateral proceeding.[33] The certificate of title serves as evidence of an
indefeasible title to the property in favor of the person whose name appears
therein.[34]
However, in upholding the efficiency value of the disputed titles for
purposes of the present petition, we are not foreclosing any future
determination by appropriate forum on the legality of Borbajos titles over the
road lots. Verily, a separate case for annulment of titles over the road lots is
now pending before the court. There are serious allegations that the issuance
of the TCTs over the road lots was tainted with fraud as evidenced by
alterations made on the face of the certificates and discrepancies in the
records of the contract of absolute sale filed before the Office of the Register
of Deeds and the Notarial Division of the RTC of Cebu City. [35] If the court
finds that the titles of Borbajo were obtained fraudulently, her right to the road
lots ceases as well as her right-of-way by virtue of said titles.
In the meantime, however, we are bound by the value in law and the
evidentiary weight of the titles in the name of Borbajo. As long as the titles
are not annulled, Borbajo remains registered a co-owner and therefore her
right to use the road lots subsists.
Likewise, with Borbajo as a registered co-owner of the road lots, it is utterly
pointless to discuss whether she is entitled to the easement of right of way.
Both from the text of Article 649[36] of the Civil Code and the perspective of
elementary common sense, the dominant estate cannot be the servient
estate at the same time. One of the characteristics of an easement is that it
can be imposed only on the property of another, never on ones own property.
An easement can exist only when the servient and the dominant estates
belong to different owners.[37]
Borbajo, being a registered co-owner of the three (3) road lots, is entitled
to the injunctive relief.
The requisites to justify an injunctive relief are: (a) the existence of a
right in esse or the existence of a right to be protected; and (b) the act against
which injunction is to be directed as a violation of such right.[38] A preliminary
injunction order may be granted only when the application for the issuance of
the same shows facts entitling the applicant to the relief demanded.[39]A
preliminary injunction is not proper when its purpose is to take the property
out of the possession or control of one party and transfer the same to the
hands of another who did not have such control at the inception of the case
and whose legal title has not clearly been established. [40]
One final note. Respondents in their Answer[41] neither claimed nor asked
for the right to regulate the use of the road lots or that the road lots be donated
to the Cebu City Government. Thus, there was utterly no basis for the trial
court to include as it did its disposition along these lines in the decretal portion
of its decision.
 WHEREFORE, the Decision of the Court of Appeals dated 21 September
2001 is REVERSED and SET ASIDE and the writ of preliminary injunction
issued by the Regional Trial Court of Cebu City, Branch 58, is made
permanent, subject to the final outcome of Civil Case No. 21239 pending
before the Regional Trial Court of Cebu City, Branch 9.
SOLID MANILA CORPORATION v BIO HONG TRADING CO., INC. and CA

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
of7 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.

RULING: 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 alienated11 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.19We 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.
SPS. ELIZABETH DE LA CRUZ and ALFREDO DE LA CRUZ vs. OLGA RAMISCAL

Respondent OLGA RAMISCAL is the registered owner of a parcel of land located at

the corner of 18th Avenue and Boni Serrano Avenue, Murphy, Quezon City, covered by
Transfer Certificate of Title (TCT) No. 300302 of the Register of Deeds for Quezon
City.[3] Petitioners SPS. ELIZABETH and ALFREDO DE LA CRUZ are occupants of a
parcel of land, with an area of eighty-five (85) square meters, located at the back of
Ramiscals property, and covered by TCT No. RT-56958 (100547) in the name of
Concepcion de la Pea, mother of petitioner Alfredo de la Cruz.[4]
The subject matter of this case is a 1.10-meter wide by 12.60-meter long strip of land
owned by respondent which is being used by petitioners as their pathway to and from
18th Avenue, the nearest public highway from their property. Petitioners had enclosed
the same with a gate, fence, and roof.[5]
In 1976, respondent leased her property, including the building thereon, to Phil.
Orient Motors. Phil. Orient Motors also owned a property adjacent to that of respondents.
In 1995, Phil. Orient Motors sold its property to San Benito Realty. After the sale, Engr.
Rafael Madrid prepared a relocation survey and location plan for both contiguous
properties of respondent and San Benito Realty. It was only then that respondent
discovered that the aforementioned pathway being occupied by petitioners is part of her
property.[6]
Through her lawyer, respondent immediately demanded that petitioners demolish the
structure constructed by them on said pathway without her knowledge and consent. As
her letter dated 18 February 1995 addressed to petitioners went unheeded, the former
referred the matter to the Barangay for conciliation proceedings, but the parties arrived
at no settlement. Hence, respondent filed this complaint with the RTC in Civil Case No.
Q-95-25159, seeking the demolition of the structure allegedly illegally constructed by
petitioners on her property. Respondent asserted in her complaint that petitioners have
an existing right of way to a public highway other than the current one they are using,
which she owns. She prayed for the payment of damages.[7]
In support of the complaint, respondent presented TCT No. RT-56958 (100547)
covering the property denominated as Lot 1-B in the name of Concepcion de la Pea,
mother of petitioner herein Alfredo de la Cruz. The aforesaid TCT reveals that a portion
of Lot 1-B, consisting of 85 square meters and denominated as Lot 1-B-2, is being
occupied by petitioners. To prove that petitioners have an existing right of way to a public
highway other than the pathway which respondent owns, the latter adduced in evidence
a copy of the plan of a subdivision survey for Concepcion de la Pea and Felicidad Manalo
prepared in 1965 and subdivision plan for Concepcion de la Pea prepared in 1990.
These documents establish an existing 1.50-meter wide alley, identified as Lot 1-B-1, on
the lot of Concepcion de la Pea, which serves as passageway from the lot being
occupied by petitioners (Lot 1-B-2), to Boni Serrano Avenue.[8]
On the other hand, petitioners, in their Answer, admitted having used a 1.10-meter
wide by 12.60-meter long strip of land on the northern side of respondents property as
their pathway to and from 18th Avenue, the nearest public highway from their property,
but claimed that such use was with the knowledge of respondent.[9]
Petitioners alleged in their Answer that in 1976, respondent initiated the construction
on her property of a motor shop known as Phil. Orient Motors and they, as well as the
other occupants of the property at the back of respondents land, opposed the
construction of the perimeter wall as it would enclose and render their property without
any adequate ingress and egress. They asked respondent to give them a 1.50-meter
wide and 40.15-meter long easement on the eastern side of her property, which would
be reciprocated with an equivalent 1.50-meter wide easement by the owner of another
adjacent estate. Respondent did not want to give them the easement on the eastern side
of her property, towards Boni Serrano Avenue but, instead, offered to them the said 1.10-
meter wide passageway along the northern side of her property towards 18 th Avenue,
which offer they had accepted. [10]
Petitioners additionally averred in their Answer that they were made to sign a
document stating that they waived their right to ask for an easement along the eastern
side of respondents property towards Boni Serrano Avenue, which document was
among those submitted in the application for a building permit by a certain Mang
Puling,[11] the person in charge of the construction of the motor shop. That was why,
according to petitioners, the perimeter wall on respondents property was constructed at
a distance of 1.10-meters offset and away from respondents property line to provide a
passageway for them to and from 18th Avenue. They maintained in their Answer that
respondent knew all along of the 1.10-meter pathway and had, in fact, tolerated their use
thereof.
On 31 July 1997, the RTC handed down a Decision,[12] giving probative weight to the
evidence adduced by respondent. The decretal portion enunciates:

Plaintiffs claim for moral damages must be denied as no evidence in support thereof was presented at
all by her. Consequently, plaintiff is not entitled to exemplary damages. [13] However, for having been
compelled to file this suit and incur expenses to protect her interest, plaintiff is entitled to an attorneys
fees in the amount of P10,000.00.

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and ordering
the defendants to demolish the structure built by them along the pathway on the eastern side of plaintiffs
property towards 18th Avenue, Murphy, Quezon City and to pay [the] plaintiff the amount of P10,000.00
as and by way of attorneys fees. Costs against the defendants. [14]

The Court of Appeals dismissed the appeal filed by petitioners from the RTC decision
for failure to file brief within the reglementary period. The fallo of the Court of
Appeals Decision, provides:

WHEREFORE, for failure of the defendants-appellants to file brief within the reglementary period, the
instant appeal is hereby DISMISSED pursuant to Section 1(e), Rule 50 of the 1997 Rules of Civil
Procedure. The Compliance/Explanation filed by defendants-appellants, submitting the Letter-
withdrawal of Atty. Judito Tadeo addressed to the said defendants-appellants is NOTED. Let a copy of
this Resolution be likewise served on defendants-appellants themselves.[15]
 Xxx The issues rivet on the adjective as well as on the substantive law, specifically:
(1) whether or not the Court Appeals erred in dismissing the appeal filed by petitioners
for failure to file appellants brief on time, (2) whether or not petitioners are entitled to a
voluntary or legal easement of right of way, and (3) whether or not respondent is barred
by laches from closing the right of way being used by petitioners.
On the first issue, petitioners assert positively that the petition was filed on time on
30 April 1998, which is well within the 45-day period reckoned from 17 March 1998, when
the secretary of their former counsel received the notice to file appeal.
Petitioners arguments fail to persuade us.
Press earnestly as they would, the evidence on record, nevertheless, evinces
contrariety to petitioners assertion that they have beat the 45-day period to file appellants
brief before the appellate court. It is clear from the registry return receipt card[17] that the
Notice to File Brief was received on 12 March 1998 by one May Tadeo from the Office
of Atty. Judito Angelo C. Tadeo, petitioners previous counsel. Thus, on 30 April 1998,
when their new counsel entered his appearance and at the same time filed an appellants
brief, the 45 days have run out. For failure of petitioners to file brief within the
reglementary period, the Court of Appeals correctly dismissed said appeal pursuant to
Section 1(b), Rule 50 of the 1997 Rules of Civil Procedure.[18]
Neither can the members of this Court lend credence to petitioners contention that
the written note of Atty. Tadeos office on the face of the Order reads that the said office
received it on 17 March 1998.[19]
It is a rule generally accepted that when the service is to be made by registered mail,
the service is deemed complete and effective upon actual receipt by the addressee as
shown by the registry return card.[20] Thus, between the registry return card and said
written note, the former commands more weight. Not only is the former considered as
the official record of the court, but also as such, it is presumed to be accurate unless
proven otherwise, unlike a written note or record of a party, which is often self-serving
and easily fabricated. Further, this error on the part of the secretary of the petitioners
former counsel amounts to negligence or incompetence in record-keeping, which is not
an excuse for the delay of filing.
Petitioners justification that their former counsel belatedly transmitted said order to
them only on 20 March 1998 is not a good reason for departing from the established
rule. It was the responsibility of petitioners and their counsel to devise a system for the
receipt of mail intended for them.[21] Rules on procedure cannot be made to depend on
the singular convenience of a party.
Petitioners next take the stand that even assuming the brief was filed late, the Court
of Appeals still erred in dismissing their petition in light of the rulings of this Court allowing
delayed appeals on equitable grounds.[22] Indeed, in certain special cases and for
compelling causes, the Court has disregarded similar technical flaws so as to correct an
obvious injustice made.[23] In this case, petitioners, however, failed to demonstrate any
justifiable reasons or meritorious grounds for a liberal application of the rules. We must
remind petitioners that the right to appeal is not a constitutional, natural or inherent right
- it is a statutory privilege and of statutory origin and, therefore, available only if granted
or provided by statute.[24] Thus, it may be exercised only in the manner prescribed by,
and in accordance with, the provisions of the law.[25]
Anent the second issue, 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.[26] The statutory basis for this right is Article 613, in connection with
Article 619, of the Civil Code, which states:

Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for

the benefit of another immovable belonging to a different owner.

The immovable in favor of which the easement is established is called the dominant
estate; that which is subject thereto, the servient estate.

Art. 619. Easements are established either by law or by the will of the owners. The former
are called legal and the latter voluntary easements.

Did respondent voluntarily accord petitioners a right of way?

We rule in the negative. Petitioners herein failed to show by competent evidence
other than their bare claim that they and their tenants, spouses Manuel and Cecilia
Bondoc and Carmelino Masangkay, entered into an agreement with respondent, through
her foreman, Mang Puling, to use the pathway to 18th Avenue, which would be
reciprocated with an equivalent 1.50-meter wide easement by the owner of another
adjacent estate. The hands of this Court are tied from giving credence to petitioners self-
serving claim that such right of way was voluntarily given them by respondent for the
following reasons:
First, petitioners were unable to produce any shred of document evidencing such
agreement. The Civil Code is clear that any transaction involving the sale or disposition
of real property must be in writing.[27] Thus, the dearth of corroborative evidence opens
doubts on the veracity of the naked assertion of petitioners that indeed the subject
easement of right of way was a voluntary grant from respondent. Second, as admitted
by the petitioners, it was only the foreman, Mang Puling, who talked with them regarding
said pathway on the northern side of respondents property. Thus, petitioner Elizabeth
de la Cruz testified that she did not talk to respondent regarding the arrangement
proposed to them by Mang Puling despite the fact that she often saw respondent. [28] It
is, therefore, foolhardy for petitioners to believe that the alleged foreman of respondent
had the authority to bind the respondent relating to the easement of right of way. Third,
their explanation that said Mang Puling submitted said agreement to the Quezon City
Engineers Office, in connection with the application for a building permit but said office
could no longer produce a copy thereof, does not inspire belief. As correctly pointed out
by the trial court,[29] petitioners should have requested a subpoena duces tecum from
said court to compel the Quezon City Engineers Office to produce said document or to
prove that such document is indeed not available.
The fact that the perimeter wall of the building on respondents property was
constructed at a distance of 1.10 meters away from the property line, does not by itself
bolster the veracity of petitioners story that there was indeed such an agreement.
Further, as noted by the trial court, it was Atty. Federico R. Onandia, counsel of Phil.
Orient Motors, who wrote petitioners on 25 August 1994 advising them that his client
would close the pathway along 18th Avenue, thereby implying that it was Phil. Orient
Motors, respondents lessee, which tolerated petitioners use of said pathway.[30]
Likewise futile are petitioners attempts to show that they are legally entitled to the
aforesaid pathway under Article 649 of the Civil Code, to wit:

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.

The conferment of a legal easement of right of way under Article 649 is subject to
proof of the following requisites: (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; (4) the right of way claimed is at the point least prejudicial
to the servient estate; and (5) to the extent consistent with the foregoing rule, where the
distance from the dominant estate to a public highway may be the shortest.[31] The first
three requisites are not obtaining in the instant case.
Contrary to petitioners contention, the trial court found from the records that
Concepcion de la Pea had provided petitioners with an adequate ingress and egress
towards Boni Serrano Avenue. The trial court, gave weight to TCT No. RT-56958
(100547) covering the property denominated as Lot 1-B in the name of Concepcion de
la Pea, mother of petitioner herein Alfredo de la Cruz. Said TCT indicates that a portion
of Lot 1-B, consisting of 85 square meters and denominated as Lot 1-B-2, is the one
being occupied by petitioners.[32] In this connection, a copy of the plan of a subdivision
survey for Concepcion de la Pea and Felicidad Manalo prepared in 1965 and subdivision
plan for Concepcion de la Pea prepared in 1990 revealed an existing 1.50-meter wide
alley, identified as Lot 1-B-1, on the lot of Concepcion de la Pea, which serves as
passageway from the lot being occupied by petitioners (Lot 1-B-2) to Boni Serrano
Avenue.[33] During the trial, petitioner Elizabeth de la Cruz herself admitted knowledge
of the existence of the subdivision plan of Lot 1-B prepared for Concepcion de la Pea by
Engr. Julio Cudiamat in 1990. The Subdivision Plan subdivided Lot 1-B into three
portions, namely:
(1) Lot 1-B-1, which is an existing alley, consisting of 59.60 square meters,
towards Boni Serrano Avenue;
 (2) Lot 1-B-2, consisting of 85.20 square meters, which is being occupied
by petitioners; and
(3) Lot 1-B-3, consisting also of 85.20 square meters, which is being
occupied by the sister of petitioner Alfredo dela Cruz.[34]
From petitioner Elizabeth de la Cruzs own admission, Lot 1-B-1 was intended by the
owner, Concepcion de la Pea, to serve as an access to a public highway for the
occupants of the interior portion of her property.[35] Inasmuch as petitioners have an
adequate outlet to a public highway (Boni Serrano Avenue), they have no right to insist
on using a portion of respondents property as pathway towards 18th Avenue and for
which no indemnity was being paid by them.
Petitioner Elizabeth de la Cruz claimed before the trial court that although there was
indeed a portion of land allotted by Concepcion de la Pea to serve as their ingress and
egress to Boni Serrano Avenue, petitioners can no longer use the same because de la
Pea had constructed houses on it. As found by the trial court, the isolation of petitioners
property was due to the acts of Concepcion de la Pea, who is required by law to grant a
right of way to the occupants of her property. In the trial courts rationale:

Article 649 of the Civil Code provides that the easement of right of way is not
compulsory if the isolation of the immovable is due to the proprietors own acts. To
allow defendants access to plaintiffs property towards 18th Avenue simply because it
is a shorter route to a public highway, despite the fact that a road right of way, which
is even wider, although longer, was in fact provided for them by Concepcion de la
Pea towards Boni Serrano Avenue would ignore what jurisprudence has consistently
maintained through the years regarding an easement of 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. In Francisco vs. Intermediate Appellate Court, 177 SCRA 527, it was
likewise held that a person who had been granted an access to the public highway
through an adjacent estate cannot claim a similar easement in an alternative location
if such existing easement was rendered unusable by the owners own act of isolating
his property from a public highway, such as what Concepcion de la Pea allegedly did
to her property by constructing houses on the 1.50 meter wide alley leading to Boni
Serrano Avenue. And, if it were true that defendants had already bought Lot 1-B-2,
the portion occupied by them, from Concepcion de la Pea, then the latter is obliged
to grant defendants a right of way without indemnity.[36]

We hasten to add that under the above-quoted Article 649 of the Civil Code, it is
the owner, or any person who by virtue of a real right may cultivate or use any immovable
surrounded by other immovable pertaining to other persons, who is entitled to demand
a right of way through the neighboring estates. In this case, petitioners fell short of
proving that they are the owners of the supposed dominant estate. Nor were they able
to prove that they possess a real right to use such property. The petitioners claim to have
acquired their property, denominated as Lot 1-B-2, from Concepcion de la Pea, mother
of defendant Alfredo de la Cruz, who owns Lot 1-B-3, an adjacent lot. However, as earlier
noted, the trial court found that the title to both lots is still registered in the name of
Concepcion de la Pea under TCT No. RT-56958 (100547).[37] Neither were petitioners
able to produce the Deed of Sale evidencing their alleged purchase of the property from
de la Pea. Hence, by the bulk of evidence, de la Pea, not petitioners, is the real party-in-
interest to claim a right of way although, as explained earlier, any action to demand a
right of way from de la Peas part will not lie inasmuch as by her own acts of building
houses in the area allotted for a pathway in her property, she had caused the isolation
of her property from any access to a public highway.
On the third issue, petitioners cannot find sanctuary in the equitable principle of
laches under the contention that by sleeping on her right to reclaim the pathway after
almost twenty years, respondent has, in effect, waived such right over the same. 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.[38]
The essential elements of laches are: (a) conduct on the part of the defendant, or of
one under whom he claims, giving rise to the situation complained of; (b) delay in
asserting complainants rights after he had knowledge of defendants 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.[39]
The second and third elements, i.e., knowledge of defendant's acts and delay in the
filing of such suit are certainly lacking here. As borne by the records, it was only in 1995
that respondent found out that the pathway being used by petitioners was part of her
property when a relocation survey and location plan of her property and the adjacent
land bought by San Benito Realty were prepared.[40] She immediately demanded
petitioners to demolish the structure illegally constructed by them on her property without
her knowledge and consent. As her letter dated 18 February 1995 addressed to
petitioners fell on deaf ears, and as no settlement was arrived at by the parties at
the Barangay level, respondent seasonably filed her complaint with the RTC in the same
year.[41]
Respondent, in her Comment,[42] brings the Courts attention to petitioners conversion
of the pathway, subject matter of this case, into a canteen and videoke bar, as shown by
the pictures[43] showing the property bearing the signage,
[44]
FREDS CANTEEN/VIDEOKE KAMBINGAN. Respondent, likewise, complains in her
Comment about the structures installed by petitioners that encroached on respondents
property line as a result of the commercial activities by petitioners on the disputed
property. Petitioners have implicitly admitted this conversion of the propertys use by their
silence on the matter in their Reply[45] and Memorandum.[46] Such conversion is a telltale
sign of petitioners veiled pecuniary interest in asserting a right over the litigated property
under the pretext of an innocuous claim for a right of way.
 Viewed from all angles, from the facts and the law, the Court finds no redeeming
value in petitioners asseverations that merit the reversal of the assailed resolutions.
WHEREFORE, the instant petition is DENIED. The Resolutions dated 11 September
1998 and 5 March 1999 of the Court of Appeals in CA-G.R. SP No. 68216 are
AFFIRMED. The Decision dated 31 July 1997 of the Regional Trial Court is likewise
UPHELD. Costs against petitioners. SO ORDERED.
BOGO-MEDELLIN MILLING CO., INC. vs. CA AND HEIRS OF MAGDALENO
VALDEZ SR
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 petitioners sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private
respondents inherited the land. However, unknown to them, Bomedco was
able to have the disputed middle lot which was 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,
1935[9] to evidence the sale of the land to Magdaleno Valdez, Sr.; several
original real estate tax receipts[10] including Real Property Tax Receipt No.
3935[11] dated 1922 in the name of Graciano de los Reyes, husband of
Feliciana Santillan, and Real Property Tax Receipt No. 09491[12] dated 1963
in the name of Magdaleno Valdez, Sr. Magdaleno Valdez, Jr. also testified for
the plaintiffs during the trial.
On the other hand, Bomedcos principal defense was that it was the owner
and possessor 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 Bomedcos open and
continuous possession of the property for more than 50 years.
Bomedco submitted in evidence a Deed of Sale[13] dated March 18,
1929; seven real estate tax receipts[14] 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 Cadastre[18] 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 court [19] 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 defendants railway tracks is traversing [sic] (TSN of
February 5, 1991, pp. 7-8). As to the continuity of defendants 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 defendants
UNINTERRUPTED possession of the strip of land for more than fifity (50)
years, the Supreme Courts ruling in the case of Ronquillo, et al. v. Roco,
et al. (103 Phil 84) is not applicable. This is because in said case the
easement in 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
easements possession by the dominant estate was never continuous. In
the instant case however, there is clear continuity of defendants
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 Bomedcos 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 Bomedcos 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 Bomedcos 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, Bomedcos
possession of the land had not yet ripened into ownership.
And since there was no showing that respondent heirs or their
predecessor-in-interest was ever 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 xxx
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
prescriptionunder Article 620 of the Civil Code.

Extraordinary Acquisitive Prescription Under Art. 1137 of the Civil Code

Petitioners 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 persons 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 1950s when the grant was alleged by
respondent heirs to have expired. It stresses that, counting from the late
1950s (1959 as found by the trial court), the 30-year extraordinary acquisitive
prescription had already 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 petitioners 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 petitioners 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 complainants rights after he had knowledge of defendants
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 petitioners 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.
Petitioners 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 ones 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 elses 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 petitioners
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.
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 adequate outlet to a
immovables and has no public highway;
 (2) payment of proper prejudicial to the servient
indemnity; estate, and, insofar as
consistent with this rule,
(3) the isolation is not the the distance from the
result of its own acts; and dominant estate to the
highway is the
(4) the right of way claimed is [43]
shortest.
at the point least
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 attorneys 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.
CID v JAVIER

The legal issue presented in this petition to review by certiorari a decision of the Court
of appeals, is whether the respondents Irene P. Javier, et al., owners of a building
standing on their lot with windows overlooking the adjacent lot, had acquired by
prescription an enforceable easement of light and view arising from a verbal prohibition
to obstruct such view and light, alleged to have been made upon petitioner's
predecessor-in-interest as owner of the adjoining lot, both of which lots being covered
by Torrens titles. Both the trial court and the Court of Appeals are of the view and so
declared that respondents Javier et al., did acquire such easement and gave judgment
accordingly. Hence, petitioner has come to us seeking review, alleging that both courts
are in error.

The windows in question are admittedly in respondents' own building erected on their
own lot. The easement, if there is any, is therefore a negative one. 1 The alleged
prohibition having been avowedly made in 1913 or 1914, before the present Civil Code
took effect, the applicable legal provision is Article 538 of the Spanish Civil Code which
provides:

Art. 538. In order to acquire by prescription the easements referred to in the next
preceding article, the time of the possession shall be computed, ... in negative
easements, from the day on which the owner of the dominant estate has, by a
formal act, forbidden the owner of the servient estate to perform any act which
would be lawful without the easement. (Emphasis supplied.)

As may be seen, the only question hinges on the interpretation of the phrase "a formal
act". The lower court and the Court of Appeals considered any prohibition made by the
owner of the dominant estate, be it oral or written, sufficient compliance with the law.
The Court of Appeals declared:

In the light of the foregoing decisions, (Cortes vs. Yu Tibo, 2 Phil., 26 and the
decisions of the Supreme Court of Spain therein cited), we agree with the trial court
that the "formal act" of prohibition contemplated by Art. 538 of the old Civil Code
may be either a written or verbal act. The decisions of the Supreme Court of Spain
above-quoted do not at all mention written but merely some act of prohibition. . . .
.

We are inclined to take the contrary view. The law is explicit. It requires not any form of
prohibition, but exacts, in a parenthetical expression, for emphasis, the doing not only of
a specific, particular act, but a formal act. The following definitions are pertinent:

Formalor pertaining to form, characterized by one due form or order, done in

due form with a solemnity regular; relating to matters of form. (C. J. S. vol. 37, p.
115.)
 ActIn civil law, a writing which states in legal form that a thing has been done,
said or agreed. (1 Bouvier's Law Dictionary, p. 150, citing Marlin Report.)

From these definitions, it would appear that the phrase "formal act" would require not
merely any writing, but one executed in due form and/or with solemnity. That this is the
intendment of the law although not expressed in exact language is the reason for
the clarification2 made in Article 621 of the new Civil Code which specifically requires the
prohibition to be in "an instrument acknowledged before a notary public". This is as it
should be. Easements are in the nature of an encumbrance on the servient estate. They
constitute a limitation of the dominical right of the owner of the subjected property.
Hence, they can be acquired only by title and by prescription, in the case of positive
easement, only as a result of some sort of invasion, apparent and continuous, of the
servient estate. By the same token, negative easements can not be acquired by less
formal means. Hence, the requirement that the prohibition (the equivalent of the act of
invasion) should be by "a formal act", "an instrument acknowledged before a notary
public."

The Court of Appeals found as undisputed the fact 'that plaintiffs' lot (dominant) as well
as defendant's lot (servient) are covered by Original Certificates of Title Nos. 7225 and
7545, respectively", both issued by the Register of Deeds of Ilocos Norte, in pursuance
of the decrees of registration issued on December 27, 1937, in Cadastral Case No. 51,
G.L.R.O. Cadastral Record No. 1212 of Laoag, Ilocos Norte. Certified copies of these
certificates of title are found as Annexes "A" and "B", pages 77 to 80 inclusive of the
Record on Appeal. In both of them, it does not appear any annotation in respect to the
easement supposedly acquired by prescription which, counting the twenty (20) years
from 1913 or 1914, would have already ripened by 1937, date of the decrees of
registration. Consequently, even conceding arguendo that such an easement has been
acquired, it had been cut off or extinguished by the registration of the servient estate
under the Torrens System without the easement being annotated on the corresponding
certificate of title, pursuant to Section 39 of the Land Registration Act.3

Wherefore, the decision of the Court of Appeals appealed from is hereby reversed; the
injunction issued herein dissolved; and the case remanded to the court of origin for
adjudication of the damages, if any, occasioned by the issuance of the injunction.
Without pronouncement as to costs. So ordered.
VELASCO v CUSI and DAVAO CITY

Petitioner filed in the Court of First Instance of Davao an action against Davao
City to quiet title to her lot known as Lot 77-B-2, a portion of which she claims
to having been occupied illegally as part of Bolton Street, Davao City. On a
motion to dismiss filed by the defendant, on the ground that the complaint
states no cause of action, the Court, presided over by respondent Judge Hon.
Vicente Cusi Jr., dismissed the case. Hence, this petition for certiorari seeking
a review of the Order of dismissal dated July 11, 1970 (Annex D to tile
Petition). 1

The dismissal being on the ground that the complaint does not state a cause
of action, the allegations of the complaint have to be closely examined, as the
court a quo did in its Order aforecited which quoted the material allegations
of the complaint as follows:

The action is to quiet title and damages. But the complaint does not
allege any cloud or doubt on the title, 'Transfer Certificate of Title
No. T-7000 of the Register of Deeds of the City of Davao, of the
plaintiff to Lot No. 77-B-2, subdivision plan Psd-22295. According
to the complaint, ' . . . when plaintiff bought the said lot 77-B-2 from
the original owner in 1956, the Bolton Street was already existing;
that without ascertaining the monuments along Bolton Street, she
had her house constructed on her said lot and built fence along
said Bolton Street which she believed to be the boundary between
her lot and said street and in line with other offences already
existing when she bought said lot; 6. That plaintiff has just
discovered, after a relocation of the monuments of her lot, Lot No.
77-B-2, that the Bolton Street of the defendant has encroached at
least TWENTY-FIVE (25) SQUARE METERS with dimension of
2.5 meters by 10 meters, making her actual occupation of her lot
10 meters by 47.5 meters, as indicated in the plan Annex "A"
hereon enclosed thereon by red pencil lines; 7. That plaintiff has
just discovered also that the width of the Bolton Street is only NINE
(9) METERS and since the defendant is now asphalting the said
Bolton Street, plaintiff has filed this complaint in order to quiet her
title to the said portion of 2.5 meters by 10 meters as shown in the
plan enclosed in red pencil oil Annex "A" hereon because the
continued occupation of said portion by the defendant has cast a
 cloud of doubt on the title of the plaintiff over the portion of plaintiff's
Lot No. 77-B-2 now being occupied by Bolton Street, valued at four
hundred pesos per square meters.

After quoting the material allegations of the complaint as above set forth, the
court a quo analyzed them carefully and scrutinizingly, and came up with the
conclusion that the allegations of the complaint state no cause of action. Thus

The allegations in the complaint that the Bolton Street encroached

on the lot of the plaintiff and that the defendant had continuously
occupied the portion so encroached upon do not, contrary to the
conclusion of the plaintiff found in the complaint, cast ' . . a cloud of
doubt on the title of the plaintiff over said portion which would justify
this action.

In her present petition, petitioner assigned as error of the court a quo the
following:

1. THE LOWER COURT ERRED IN DECLARING THAT THE

BOLTON STREET AS AN EASEMENT MUST REMAIN A
BURDEN ON LOT 77-B-2 (LOT IN QUESTION) PURSUANT TO
SECTION 39 OF ACT 496 ON THE GROUND THAT IT IS
SUBJECT TO EASEMENT OF PUBLIC HIGHWAY.

2. THE LOWER COURT ERRED IN DECLARING THAT THE

PORTION OF THE LAND OF PETITIONER ENCROACHED
UPON BY THE RESPONDENT CITY OF DAVAO'S BOLTON
STREET DOES NOT CAST A CLOUD OF DOUBT IN THE TITLE
OF PETITIONER.

3. THE LOWER COURT ERRED IN DECLARING THAT

ASSUMING THE FACTS ALLEGED IN THE COMPLAINT TO BE
TRUE, A JUDGMENT UPON THE SAME IN ACCORDANCE
WITH THE PRAYER COULD NOT BE RENDERED.

4. THE LOWER COURT ERRED IN DISMISSING THE

COMPLAINT FOR LACK OF CAUSE OF ACTION.

As alleged by petitioner, the lot in question, Lot No. 77-B-2, which she bought
in 1956, was part of Lot No. 77-B, which was in turn originally a portion of Lot
No. 77, covered by O.C.T. No. 683, issued on July 21, 1911. For the lot she
bought, she received Transfer Certificate of Title No. T-7000.

In 1970, petitioner discovered that the Bolton Street of the City of Davao had
encroached upon her a lot of portion of 2.5 meters wide and 10 meters long,
along said Street, or an area of 25 Square meters. She also discovered that
Bolton Street was delimited to nine (9) meters wide, but the proposed width
was 15 meters, and in that same year 1970, the Bolton Street had already
encroached on her lot, on the northwestern part thereof, to the extent as
above stated (par. 7, Complaint, Annex A. to Petition).

From The allegations of the complaint as set forth above, as well as inhe
questioned Order quoted earlier, We agree with respondent judge that the
complaint states no cause of action upon which to render judgment in favor
of petitioner, even assuming S the said allegations to be true, indeed, in a
motion to dismiss for lack of cause of action, the allegations of the complaint
must be hypothetically admitted. 2

It appears on the face of the complaint that Bolton Street has been where it
is from time immemorial. When the mother title of petitioner's Transfer
Certificate of Title No. T- 7000, which is O.C.T. No. 638, was issued in 1911,
it was issued subject to the provisions of Section 39 of Act 496 which reads:

Section 39. Every person receiving a certificate of title in pursuance

of a decree or registration, and every subsequent purchasers of
registered land who takes a certificate of title for value in good faith
shall hold the same free of all encumbrances, except those noted
on said certificate, and any of the following encumbrances which
may be subsisting namely:

xxx xxx xxx

Third. Any public highway, way, private way, ... or any government
irrigation, canal, or lateral thereof ...

From the foregoing provision, Bolton Street which is a public highway, already
subsisting when O.C.T. No. 638 was issued, as this fact is apparent too from
the face of the complaint itself, is deemed to have attached as a legal
encumbrance to the lot originally registered lot No. 77, notwithstanding the
lack of an annotation thereof on O.C.T. No. 638. petitioner, therefore, cannot
rely, as she almost entirely does for the relief she seeks, on the aforequoted
provision, which she had repeatedly cited but without making mention,
perhaps conveniently, of the exception as expressly provided in the later part
of the legal provision invoked (Sec. 39, Act 496).

If from the undisputed fact Chat when Lot -77 was registered, Bolton Street
had already been a legal encumbrance on said lot, pursuant to Section 39 of
Act 496, contrary to petitioner's theory based on the same legal provision but
o committing the portion pertinent to the instant case, there can be no
gainsaying the fact that petitioner's lot, Lot No. 77-B-2, which admittedly was
originally a part of Lot No. 77, must have to remain subject to the same legal
encumbrance of a public highway.

From her own allegations in her complaint, Bolton Street cannot be a

discontinuous easement as she claims it to be, which may not be acquired by
prescription. Nonetheless, whether the mode of acquisition of the easement
that Bolton Street is, would be only by virtue of title, as petitioner contends,
this is not material or of any consequence, in the present proceedings, once
it indubitably appears as it does, from the allegations of the complaint itself,
that Bolton Street constituted an easement of public highway on Lot No. 77,
from which petitioner's lot was taken, when the said bigger lot was original
registered. It remained as such legal encumbrance, as effectively as if it had
been duly noted on the certificate of title, by virtue of the clear and express
provision of Section 39 of Act 496, it being admitted that at the time of the
registration of Lot 77, the public highway was already in existence or
subsisting. This fact erases whatever cause of action petitioner may have to
bring the complaint she filed in the court a quo for quieting of title on a portion
of the street which she claims to be part of her lot, free from encumbrance of
any kind. The Order complained of has only this legal postulate as its basis.
Nothing has been mentioned therein on the acquisition by the City of Davao
of the lot in question by prescription, and a discussion of this matter as is
found in petitioner's brief 3 would be entirely irrelevant.

WHEREFORE, no reversible error having been found in the Order

complained of, the same is hereby affirmed, and the instant petition,
dismissed. Costs against petitioner. SO ORDERED.
VILLANUEVA vs. VELASCO

This petition for certiorari assails (1) the decision [1] dated December 27, 1996 of the Court of
Appeals in CA-G.R. SP No. 39166, dismissing petitioners petition for review under Rule 65 with prayer
for the issuance of a cease and desist order and/or temporary restraining order, and (2) the
resolution[2]dated August 14, 1997 denying the subsequent motion for reconsideration.
Petitioner Bryan Villanueva is the registered owner of the parcel of land covered by
Transfer Certificate of Title No. 127862 of the Register of Deeds of Quezon City. He
bought it from Pacific Banking Corporation, the mortgagee of said property. The bank
had acquired it from the spouses Maximo and Justina Gabriel at a public auction on
March 19, 1983. When petitioner bought the parcel of land there was a small house on
its southeastern portion. It occupied one meter of the two-meter wide easement of right
of way the Gabriel spouses granted to the Espinolas, predecessors-in-interest of private
respondents, in a Contract of Easement of Right of Way. The pertinent portion of the
contract dated November 28, 1979, states:

. . . in order to have an access to and from their aforementioned land where their houses are constructed
and to have an outlet to Tandang Sora Ave. which is the nearest public road and the least burdensome
to the servient estate and to third persons, it would be necessary for them to pass through spouses
MAXIMO GABRIEL and JUSTINA CAPUNOs land and for this purpose, a path or passageway of not
less than two (2) meters wide of said spouses property is necessary for the use of ROMEO, RODOLFO,
NENITA and AURORA ESPINOLA and for all their needs in entering their property.

x x x WHEREFORE, in view of the fact that the property of the ESPINOLA had been bought by them
from MAXIMO CAPUNO, father of MAXIMO GABRIEL, spouses MAXIMO GABRIEL and JUSTINA
CAPUNO hereby agree and permit RODOLFO, ROMEO, NENITA and AURORA ESPINOLA and their
families to have a permanent easement of right of way over the aforementioned property of said
spouses limited to not more than two meters wide, throughout the whole length of the southeast side
of said property and as specifically indicated in the attached plan which is made an integral part of this
Contract as Annex A;

This Agreement shall be binding between the parties and upon their heirs, successors,
assigns, without prejudice in cases of sale of subject property that will warrant the
circumstances.[3]

Unknown to petitioner, even before he bought the land, the Gabriels had constructed
the aforementioned small house that encroached upon the two-meter
easement. Petitioner was also unaware that private respondents, Julio Sebastian and
Shirley Lorilla, had filed on May 8, 1991, Civil Case No. Q-91-8703, for easement,
damages and with prayer for a writ of preliminary injunction and/or restraining order
against the spouses Gabriel.[4] As successors-in-interest, Sebastian and Lorilla wanted
to enforce the contract of easement.
On May 15, 1991, the trial court issued a temporary restraining order. On August 13,
1991, it issued a writ of preliminary mandatory injunction ordering the Gabriels to provide
the right of way and to demolish the small house encroaching on the easement. On
August 15, 1991, the Gabriels filed a motion for reconsideration which was also
denied. Thus, they filed a petition for certiorari before the Court of Appeals.
On March 26, 1992, the Eighth Division of the Court of Appeals dismissed the petition
and upheld the RTCs issuances. The decision became final and executory on July 31,
1992.[5]
On January 5, 1995, Judge Tirso Velasco of the RTC in Quezon City, Branch 88,
issued an Alias Writ of Demolition. On June 20, 1995, the sheriff tried to demolish the
small house pursuant to the writ. Petitioner filed a Third Party Claim with Prayer to Quash
Alias Writ of Demolition. He maintains that the writ of demolition could not apply to his
property since he was not a party to the civil case. His Third Party Claim with prayer to
quash the writ of demolition was denied for lack of merit on August 16, 1995. [6] The
motion for reconsideration as well as the Supplemental Motion for Reconsideration dated
September 12, 1995 were denied on October 19, 1995.[7]
Petitioner, thereafter, filed a petition for certiorari before the Court of Appeals,
docketed as CA-G.R. SP No. 39166, asserting that the existence of the easement of
right of way was not annotated in his title and that he was not a party to Civil Case No.
Q-91-8703, hence the contract of easement executed by the Gabriels in favor of the
Espinolas could not be enforced against him. The Court of Appeals dismissed the
petition for lack of merit and denied the reconsideration.
Hence, this instant petition. xxx
Primarily, the issue is whether the easement on the property binds petitioner.
Petitioner argues it could not be enforced against him. First, he says that a right of
way cannot exist when it is not expressly stated or annotated on
the Torrens title. According to him, even if an easement is inherent and inseparable from
the estate to which it actively belongs as provided in Art. 617 of the Civil Code, [10] the
same is extinguished when the servient estate is registered and the easement was not
annotated in said title conformably with Section 39 of the Land Registration
Law. Second, petitioner points out that the trial court erred when it faulted him for relying
solely on the clean title of the property he bought, as it is well-settled that a person
dealing with registered land is not required to go beyond what is recorded in the title. He
adds that it is private respondents who should have made sure their right of way was
safeguarded by having the same annotated on the title with the Register of Deeds. He
adds that Section 76 of P.D. No. 1529[11] also requires that when a case is commenced
involving any right to registered land under the Land Registration Law (now the Property
Registration Decree), any decision on it will only be effectual between or among the
parties thereto, unless a notice of lis pendens of such action is filed and registered in the
registry office where the land is recorded. There was no such annotation in the title of
the disputed land, according to petitioner. Lastly, since he was not a party to Civil
Case No. Q-91-8703, petitioner argues that he cannot be bound by the writ of demolition
and be forcibly divested of a portion of his land without having his day in court.
 Private respondents Sebastian and Lorilla, for their part, adopted the disquisition of
the appellate court as their Comment and asked for the dismissal of the petition and
P100,000.00 in damages. In its decision the appellate court, citing the decision of the
lower court, stressed that unlike other types of encumbrance of real property, a servitude
like a right of way can exist even if they are not expressly stated or annotated as an
encumbrance in a Torrens title because servitudes are inseparable from the estates to
which they actively or passively belong. Moreover, Villanueva was bound by the contract
of easement, not only as a voluntary easement but as
a legal easement. A legal easement is mandated by law, and continues to exists unless
its removal is provided for in a title of conveyance or the sign of the easement is removed
before the execution of the conveyance conformably with Article 649 [12]in accordance
with Article 617[13] of the Civil Code.
At the outset, we note that the subject easement (right of way) originally was
voluntarily constituted by agreement between the Gabriels and the Espinolas. But as
correctly observed by the Court of Appeals, the easement in the instant petition is both
(1) an easement by grant or a voluntary easement, and (2) an easement by necessity or
a legal easement. A legal easement is one mandated by law, constituted for public use
or for private interest, and becomes a continuing property right.[14] As a compulsory
easement, it is inseparable from the estate to which it belongs, as provided for in said
Article 617 of the Civil Code. The essential requisites for an easement to be compulsory
are: (1) the dominant estate is surrounded by other immovables and has no adequate
outlet to a public highway; (2) proper indemnity has been paid; (3) the isolation was not
due to acts of the proprietor of the dominant estate; (4) the right of way claimed is at a
point least prejudicial to the servient estate; and (5) to the extent consistent with the
foregoing rule, where the distance from the dominant estate to a public highway may be
the shortest.[15] The trial court and the Court of Appeals have declared the existence of
said easement (right of way). This finding of fact of both courts below is conclusive on
this Court,[16] hence we see no need to further review, but only to re-affirm, this
finding. The small house occupying one meter of the two-meter wide easement obstructs
the entry of private respondents cement mixer and motor vehicle. One meter is
insufficient for the needs of private respondents. It is well-settled that the needs of the
dominant estate determine the width of the easement.[17] Conformably then, petitioner
ought to demolish whatever edifice obstructs the easement in view of the needs of
private respondents estate.
Petitioners second proposition, that he is not bound by the contract of easement
because the same was not annotated in the title and that a notice of lis pendens of the
complaint to enforce the easement was not recorded with the Register of Deeds, is
obviously unmeritorious. As already explained, it is in the nature of legal easement that
the servient estate (of petitioner) is legally bound to provide the dominant estate (of
private respondents in this case) ingress from and egress to the public highway.
Petitioners last argument that he was not a party to Civil Case No. Q-91-8703 and
that he had not been given his day in court, is also without merit. Rule 39, Sec. 47, of
the Revised Rules of Court:
SEC. 47. Effect of judgments or final orders. The effect of a judgment or final order
rendered by a court of the Philippines, having jurisdiction to pronounce the judgment or
final order, may be as follows:

(a) In case of a judgment or final order against a specific thing, or in respect to the
probate of a will, or the administration of the estate of a deceased person, or in respect
to the personal, political, or legal condition or status of a particular person or his
relationship to another, the judgment or final order is conclusive upon the title to the
thing, the will or administration, or the condition, status or relationship of the person;
however, the probate of a will or granting of letters of administration shall only
be prima facie evidence of the death of the testator or intestate;

(b) In other cases, the judgment or final order is, with respect to the matter directly
adjudged or as to any other matter that could have been raised in relation
thereto, conclusive between the parties and their successors in interest by title
subsequent to the commencement of the action or special proceeding, litigating
for the same thing and under the same title and in the same capacity; and

(c) In any other litigation between the same parties or their successors in interest, that
only is deemed to have been adjudged in a former judgment or final order which appears
upon its face to have been so adjudged, or which was actually and necessarily included
therein or necessary thereto. (Emphasis ours).

Simply stated, a decision in a case is conclusive and binding upon the parties to said
case and those who are their successor in interest by title after said case has been
commenced or filed in court.[18] In this case, private respondents, Julio Sebastian and
Shirley Lorilla, initiated Civil Case No. Q-91-8703 on May 8, 1991,[19] against the original
owners, the spouses Maximo and Justina Gabriel. Title in the name of petitioner was
entered in the Register of Deeds[20] on March 24, 1995, after he bought the property from
the bank which had acquired it from the Gabriels. Hence, the decision in Civil Case No.
Q-91-8703 binds petitioner. For, although not a party to the suit, he is a successor-in-
interest by title subsequent to the commencement of the action in court.
WHEREFORE, the instant petition is DENIED. The assailed decision and resolution
of the Court of Appeals are AFFIRMED. Costs against petitioner. SO ORDERED.
OBRA v SPS BADUA
The case arose from a Complaint for Easement of Right-of-Way filed by
respondents against Anacleto and Resurreccion Obra, Donato and Lucena
Bucasas, and Paulino and Crisanta Badua in Civil Case No. 5033
entitled Sps. Victoriano Badua and Myrna Badua, et al. v. Sps. Anacleto Obra
and Resurreccion Obra, et al. before the RTC.Defendant Anacleto Obra was
the husband of petitioner. Respondents alleged that their residential houses,
erected on a lot commonly owned by them and covered by Tax Declaration
No. 93-01900281 under Cadastral Lot No. 5518 situated in Galongen,
Bacnotan, La Union, were located west of the properties of the Obras,
Bucasases, and Baduas.Their only access to the national highway was a
pathway traversing the northern portion of petitioners property and the
southern portion of the properties of the Bucasases and Baduas. The
pathway was more than one meter wide and sixteen meters long. They
claimed that this pathway had been established as early as 1955. In 1995,
however, petitioner Obra constructed a fence on the northern boundary of
their property; thus, blocking respondents access to the national highway.
Respondents demanded the demolition of the fence, but petitioner refused.
In her Answer, petitioner averred that respondents had not established
any easement of right-of-way either by law or agreement. She claimed that
respondents failed to satisfy the requisites provided in Articles 649 and 650
of the Civil Code in order to establish an easement of right-of-way on the
northern portion of her property. Moreover, she alleged that respondents had
another access as ingress and egress to the public road other than the one
traversing her property.
The spouses Badua and Bucasas failed to file an answer; consequently,
they were declared in default.

On July 7, 2000, after trial, the RTC rendered a Decision[3] dismissing the
complaint. It held that respondents were not able to satisfy all the requisites
needed for their claim of an easement of right of way.[4] It observed that when
petitioner fenced the northern portion of her property, respondents were able
to use another pathway as ingress and egress to the highway. It stated further
that the new pathway is more than adequate[5] for respondents use. Thus, the
applied easement of right-of-way on the northern portion of petitioners
property was not allowed. The said Decision became final and executory.
It must be noted that the new pathway used by respondents, however,
traversed the southern portion of petitioners property. Sometime in 2001,
petitioner constructed a fence on this portion of her lot, which again restricted
the use of respondents new pathway. Aggrieved and prejudiced by
petitioners action, respondents filed on March 6, 2001 a Motion to
Enforce[6] the July 7, 2000 Decision of the RTC. They alleged that the
Decision of the RTC dismissing the case was based on the existence of a
new pathway which they had been using since 1995. Thus, they asserted that
petitioner was prohibited from closing said passage.

On March 20, 2001, the RTC granted the said motion. Petitioner filed a
Motion for Reconsideration, but it was rejected in the trial courts June 20,
2001 Order.

Clarifying its July 7, 2000 Decision, the trial court, in its March 20, 2001 Order,
held that the dismissal of the complaint depended on petitioners
representation that she was allowing respondents to use the southern portion
of her property as an alternative pathway. Since the southern portion was an
agreed pathway,[7] petitioner could not reduce its width; thus, the trial court
ordered petitioner to remove the fence blocking the passage.

ISSUE: Whether or not the Court can motu proprio declare a compulsory right
of way on a property not the subject of a pending case (particularly Civil Case
No. 5033).[8]

Essentially, petitioner questions the propriety of the trial courts issuance of an

order clarifying its final and executory decision and effectively establishing an
easement on petitioners property without proper adjudication.

The petition is impressed with merit.

Dispositive Portion of a Decision Controlling

The controversy of this petition stemmed from the alleged conflict
between the body of the trial courts July 7, 2000 Decision and its dispositive
portion. Respondents aver that notwithstanding the dismissal of Civil Case
No. 5033, the body of the Decision evidently established an easement on the
southern portion of petitioners property. On the other hand, petitioner
maintains that the trial courts reference to the new pathway was merely a
declaration of its existence and not necessarily a creation of an easement of
right-of-way.
We agree with petitioners postulation.

The resolution of the court in a given issue embodied in the fallo or

dispositive part of a decision or order is the controlling factor as to settlement
of rights of the parties.[9]Thus, where there is a conflict between the fallo and
the ratio decidendi or body of the decision, the fallo controls. This rule rests
on the theory that the fallo is the final order while the opinion in the body is
merely a statement ordering nothing.[10] The rule applies when the dispositive
part of a final decision or order is definite, clear, and unequivocal, and can
wholly be given effect without need of interpretation or construction. [11]

In the case at bench, the decretal portion of the July 7, 2000 Decision is
plain and clear[w]herefore, in view of the foregoing, this case is hereby
dismissed. When a court rules that the case or complaint is dismissed, then
it is concluded that the cause of action embodied in the allegations of the
initiatory pleading has no merit or basis, and the prayer is consequently
denied.

The amended complaint filed by respondents in Civil Case No. 5033

revealed that their cause of action was the recognition of their easement of
right-of-way of more than one (1) meter wide and more than sixteen (16)
meters in length [which] traversed the northern portion of the property of
defendants spouses Anacleto Obra and Resurreccion Obra. [12] As prayer,
respondents asked for the demolition of the concrete fence constructed by
petitioner and her spouse, Anacleto, that closed the pathway on the northern
portion of Obras lot; the declaration of right-of-way over said area in favor of
respondents; and the payment of damages and attorneys fees. When the
RTC dismissed the case in its July 7, 2000 Decision, it ruled that respondents
had no cause of action against petitioner and her husband, Anacleto,
because they failed to satisfy one of the four requisites for the entitlement of
a right-of-way, namelythat the dominant estate is surrounded by other
immovables and is without adequate outlet to a public highway. The trial court
took note of the fact that the new pathway which incidentally traversed the
southern portion of petitioners lot is an adequate outlet to a public
highway. While its body mentioned the existence of an alternative pathway
located south of petitioners lot, such was made only to emphasize that
respondents failed to satisfy the requirements for an easement of right-of-
way. As held by the trial court:

The insistence of the plaintiffs to open up the old pathway is therefore

without basis considering that there is another outlet adequate enough
as an access route for them in their passage to the public highway and
the alleged inconvenience cannot be a ground for the opening of said
old pathway.
xxxx
In fine, plaintiffs were not able to satisfy all the requisites needed for
their claim of an easement of right of way; failing to prove that there is
no adequate outlet from their respective properties to a public
highway.[13]

Apparently, no pronouncement was ever made regarding the nature and

legality of this new pathway; therefore, no easement was established by the
Court on petitioners property in Civil Case No. 5033. Thus, their claim for a
right-of-way on the southern portion had no basis.

The parties and even the trial court were confined to the averments of the
complaint, and the answer and the issues joined by the major pleadings. It
could not be disputed by respondents that there was no mention at all of any
right-of-way on the southern portion of petitioners lot in the complaint nor any
claim or prayer for the declaration of respondents entitlement to a right-of-
way over the said area. Thus, there was no joinder of issue on this matter
and, therefore, the dismissal of the case cannot, by any stretch of imagination,
be construed to encompass any grant of right-of-way to respondents relating
to the southern portion owned by petitioner.

More importantly, the case was dismissed by the RTC, meaning no relief was
granted by the court to respondents. Granting arguendo that the issue on the
entitlement to respondents of a right-of-way over the southern portion was
likewise raised and was implicit from the pleadings; nevertheless,
respondents, by the dismissal of the case, were not granted any affirmative
relief by the trial court. As such, the trial court clearly erred in issuing
the March 20, 2001 Order which granted a relief not found in the fallo of the
decision.

Moreover, the construction of the fence on the southern portion was done by
petitioner after the rendition and finality of the July 7, 2000 Decision
dismissing the case. It is plain to see that such act of constructing the fence
was subsequent to the Decision and could not have been covered by said
judgment. The dispute that arose from the blockade of the pathway on the
southern portion could be the subject matter of another complaint but
definitely was not an issue in Civil Case No. 5033. In the new case,
respondents are obliged to prove all the essential elements of the easement
of right-of-waya requirement which they failed to satisfy in Civil Case No.
5033.

Lastly, the assailed March 20, 2001 Order directing the demolition of the
concrete fence was in the nature of an execution of a final judgment. It is
settled that what can be enforced by a writ of execution under Rule 39 are
the dispositions in the decretal portion of the decision or the fallo. Since the
case was dismissed, there was nothing to enforce or implement.

No Voluntary Easement of Right-of-Way

The trial court, seemingly aware that it did not determine the legality of
an easement of right-of-way over the pathway located south of petitioners
property, nevertheless, concluded that the said passage was an agreed or
voluntary easement of right-of-way which petitioner should respect.

The trial court was in error.

It is a settled doctrine that a decision, after it becomes final, becomes

immutable and unalterable.[14] Thus, the court loses jurisdiction to amend,
modify, or alter a final judgment and is left only with the jurisdiction to execute
and enforce it. Any amendment or alteration which substantially affects a final
and executory judgment is null and void for lack of jurisdiction, including the
entire proceedings held for that purpose.[15]

To recapitulate, the dismissal of Civil Case No. 5033 meant that no easement
was ever established on petitioners property. However, the trial court, by
issuing its March 20, 2001 Order directing petitioner to remove the fence that
limited respondents passage, effectively created a right-of-way on petitioners
property in favor of respondents allegedly on the basis of a voluntary
agreement between the parties. This directive was in contravention of its July
7, 2000 Decision; thus, it was null and void for having been issued outside of
the courts jurisdiction.
Granting for the sake of argument that the issue of voluntary easement of
right-of-way, subject of the assailed March 20, 2001 Order, was proper,
relevant, and material to the issue of right-of-way as averred in the complaint
in Civil Case No. 5033, still, the conclusion that there was an agreed or
voluntary easement of right-of-way had no basis. The records of Civil Case
No. 5033 do not reveal any agreement executed by the parties on the claimed
right-of-way. Glaring is the fact that the terms of the arrangement were not
agreed upon by the parties, more particularly, the payment of the proper
indemnity. The evidence is not ample enough to support the conclusion that
there was a verbal agreement on the right-of-way over the southern portion.

More so, since a right-of-way is an interest in the land, any agreement

creating it should be drawn and executed with the same formalities as a deed
to a real estate, and ordinarily must be in writing. [16] No written instrument on
this agreement was adduced by respondents.

In the light of the foregoing considerations, the assailed March 20, 2001 and
June 20, 2001 Orders are null, void, and without any legal effect.

WHEREFORE, the petition is GRANTED. The June 20,

2001 and March 20, 2001 Orders of the San Fernando City, La Union RTC,
Branch 29 in Civil Case No. 5033 are hereby ANNULLED AND SET ASIDE.
PAJARILLO v IAC
This is one of those distasteful litigations involving a controversy among close
relatives over properties left by a common ascendant. The petitioners are the
widow and children of the brother of the principal private respondent. She and
her brother appear to be the only remaining issue of the mother who seems
to have caused all the present confusion. The record does not show how
close, if at all, the members of this small family were. What is certain is that
there is no affection now among the protagonists in this case.

The mother was Juana Balane de Suterio, who had a brother named Felipe
Balane and a sister named Perfecta Balane de Cordero. Perfecta died in 1945
leaving inter alia a tract of land consisting of about 28 hectares and covered
by TCT No. 4671 in the Registry of Deeds of Quezon Province. On May 20,
1946, Juana and Felipe executed a public instrument entitled "Extra-judicial
Settlement of the Estate of the Deceased Perfecta Balane de Cordero." 1 In
it they disposed of the said property as follows:
EXTRA-JUDICIAL SETTLEMENT OF THE ESTATE OF DECEASED
PERFECTA BALANE DE CORDERO.

This agreement made to 20th day of May, 1946, by and between Felipe
Balane and Juana Balane de Suterio, both of age and residents of
Macalelon, Tayabas, Philippines.

WITNESSETH:

That whereas, the said Felipe Balane and Juana Balane de Suterio are the
only brother and sister respectively and forced heirs of Perfecta Balane de
Cordero who dies intestate on January 21, 1945;

That whereas, the said Perfects Balane de Cordero, deceased, left property
described as follows:

TRANSFER CERTIFICATE OF TITLE NO. 4671.

Province of Tayabas.

A parcel of land (Lot No. 6-A, Plan Psu-12210), with an buildings and
improvements except those herein expressly noted as belonging to other
person, situated in the barrio of Luctol, Municipality of Macalelon. Bounded
on the NE., by Lot No. 6-B; on the E., by property by Andrea Fernandez, the
sapa Luctob and the sapa Patay; on the SE., by properties of Andrea
Fernandez and Silvestra Mereis on the SW., by properties of Felix
 Rodriguez, Dionisio Fornea Placido Abistado and Adriano Abistado and the
mangrove of the government; and on the NW., by properties of Orilleneda
Mariano, Glindro Maxima Orilleneda Placida Forcados and Basilio Rabe .. ..
.. .. .. .. .. containing an area of TWO HUNDRED EIGHTY FIVE THOUSAND
THREE HUNDRED FIFTY-THREE SQUARE METERS (285,353) more or
less.

That whereas, we Felipe Balane and Juana Balane de Suterio, the only heirs
of the property described above left by the deceased Perfecta Balane de
Cordero, do hereby agree in carrying out the antemortem wish of our
beloved deceased sister that in consideration of love and affection the
property described above be donated to Salud Sutexio de Matias.

That whereas, the estate left by the said Perfecta Balane de Castro,
deceased, is not free from obligation or debt. It has an incumbrance of about
ONE THOUSAND PESOS (P1,000.00) to the Philippine National Bank,
Tayabas Branch.

That whereas, Salud Suterio de Matias, to whom this property is donated

extra-judicially as agreed upon by both heirs, shall assume the said
obligation to the Philippine National Bank, Tayabas Branch.

NOW, THEREFORE, we Felipe Balane and Juana Balane de Suterio have

mutually agreed and covenanted to adjudicate, give, transfer and convey the
property described above to Salud Suterio de Matias heirs, executors,
administrators and assign.

And the donee does hereby accept this donation and does hereby express
her gratitutde for the kindness and liberality of the donor.

IN WITNESS WHEREOF, we have hereunto set our hands tills 20th day of
May, 1946.

(Sgd.) FELIPE BALANE FELIPE BALANE

(Sgd.) JUANA BALANE DE SUTERIO JUANA BALANE DE SUTERIO (Acknowledgment)

On June 20, 1946, Salud Suterio executed the following public

instrument, 2 petitioner Eufemia Pajarillo was one of the witnesses:

KNOW ALL MEN BY THESE PRESENTS:

That on May 20, 1946, FELIPE BALANE and JUANA BALANE DE

SUTERIO, the only heirs to the properties of the late PERFECTA BALANE
DE CORDERO, executed a DEED OF DONATION in favor of the
undersigned and the said donation was made, in accordance to
the antemortem wish of my late aunt, Perfecta Balane de Cordero, to the
 effect that the property described in the Deed of Donation, be given to me
because of her love and affection for me, being her only niece.

That, I, SALUD SUTERIO, DE MATIAS, the only DONEE, do hereby receive

and accept this donation and further express my gratitude for the kindness
and liberality of the DONORS, FELIPE BALANE and JUANA BALANE DE
SUTERIO.

IN WITNESS WHEREOF, I have hereunto set my hand this 20th day of June,
1946.

(Sgd.) SALUD SUTERIO DE MATIAS

SUTERIO DE MATIAS
Donee
Signed in the presence of
(Sgd.) SOFRONIO BALANE
(Sgd.) EUFEMIA P. SUTERIO (Acknowledgment)

These instruments were never registered nor was title transferred in Salud's
name although she says she immediately took possession of the land.
Meantime, intestate proceedings were instituted on the estate of Perfecta and
the said land was among those included in the inventory of the properties
belonging to the decedent. 3 Salud interposed no objection to its inclusion nor
did she oppose its subsequent adjudication to her mother Juana in the project
of partition. It is not clear if the land was ever registered in Juana's name.
However, there is evidence that Juana confirmed the earlier donation of the
land to Salud but requested that she be allowed to possess the same and
enjoy its fruits, until her death. 4 It has also not been controverted that Salud
paid the P1,000.00 loan for which the land was mortgaged.

Salud says that sometime in 1951, acceding to this request, she transferred
the possession of the land to her mother, who was then staying with Claudio
and his family. During the period they were occupying the land, Claudio paid
the realty taxes thereon . 5 On May 25, 1956, Juana executed a deed of
absolute sale conveying the land to Claudio for the declared consideration of
P12,000.00. 6 Two years later, on August 27, 1958, Claudio had the land
registered in as name and was issued TCT No. 32050 in the land records of
Quezon Province. 7

Claudio died in 1961 and his mother in 1963. On June 30, 1965, the private
respondents filed a complaint for the reconveyance of the property on the
ground that the deed of sale in favor of Claudio was fictitious and its
registration in his name was null and void . 8
Salud (joined by her husband) alleged that she was unaware until later of the
supposed sale of the land to Claudio. She faulted it as having been procured
through fraud and improper influence on her sick and aged mother. She
claimed that no compensation was actually paid by Claudio and that the
transaction was deliberately concealed from her by her brother and the
defendants. 9 For their part, the defendants assailed the donation to Salud as
legally inefficacious and defective and contended that her complaint was
barred by prescription, estoppel and res judicata. They also filed a
counterclaim questioning the sale to Salud by her mother of another tract of
land, in which they said they were entitled to share as Juana's heirs. 10

On April 17,1979, Judge Juan M. Montecillo of the Court of First Instance of

Quezon rendered judgment upholding the donation to the plaintiff and
annulling the deed of sale and the registration of the land in favor of Claudio
Suterio, Sr. The defendants were required to reconvey the land to Salud
Suterio even as their counterclaim was dismissed for lack of evidence. 11 On
appeal, the decision was affirmed in toto. 12 The respondent court is now
sought to be reversed in this petition for certiorari under Rule 45 of the Rules
of Court.

We hold at the outset that, contrary to the ruling in the challenged decision,
the petitioners have the legal personality to challenge the validity of the
donation on which Salud bases her claim to the property under litigation. As
defendants in the complaint for reconveyance, they had every right to resist
the plaintiffs' allegation that she was the owner of the subject property by
virtue of the claimed donation. Recognition of that donation would topple the
props of their own contention that Juana could dispose of the property as its
owner when she sold it to Claudio Suterio in 1956.

The petitioners also assail the intrinsic validity of the extrajudical settlement
and submit that it is not really a donation as conceptually understood in civil
law. Their argument is that the real donor of the property was Perfecta, the
deceased sister, who, however, could no longer bestow the intended gift. For
their part, Felipe and Juana could not have made, the donation either
because they were not moved by the same sentiments Perfects had for her
niece Salud. That feeling would have provided the required consideration if
Perfects herself had made the donation, but not the other two.

This appears to be too much nitpicking, if not sophistry. Felipe and Juana had
declared themselves the heirs of Perfecta and the owners of the property in
question. As such, they were free to give the land to whomever they pleased
and for whatever reason they saw fit. Hence, if they chose to respect
Perfecta's wishes and carry out her intentions by donating the land to Salud,
there was no legal impediment to their doing so. In fact, that was not only the
legal but also the moral thing to do.

There is no question that Felipe and Juana could have simply disregarded
their sister's sentiments and decided not to donate the property to Salud,
keeping the same for themselves. The fact that they did not do this speaks
well indeed of their integrity and their loyalty as well to their deceased sister.
The extrajudicial settlement also reflects their own affection for Salud which
constituted the valid consideration for their own act of liberality. Notably, in
her acceptance of the donation, Salud referred to 'the donors Felipe Balane
and Juana Balane de Suterio," and not Perfecta.

It is also pointed out that the donation is defective in form because of non-
compliance with the requirements of the law regarding its acceptance. As it
was executed in 1946, the applicable rule is Article 633 of the old Civil Code
reading as follows:

Art. 633. In order that a donation of real property be valid it must

be made by public instrument in which the property donated must
be specifically described and the amount of the charges to be
assumed by the donee expressed.

The acceptance may be made, in the deed of gift or in a separate

public writing; but it shall produce no effect if not made during the
lifetime of the donor.

If the acceptance is made, by separate public instrument, authentic

notice thereof shall be given the donor, and this proceeding shall
be noted in both instruments.

There is no question that the donation was accepted in a separate public

instrument and that it was duly communicated to the donors. Even the
petitioners cannot deny this. But what they do contend is that such
acceptance was not "noted in both instruments," meaning the extrajudicial
partition itself and the instrument of acceptance, as required by the Civil
Code.
That is perfectly true. There is nothing in either of the two instruments showing
that "authentic notice" of the acceptance was made by Salud to Juana and
Felipe. And while the first instrument contains the statement that "the donee
does hereby accept this donation and does hereby express her gratitude for
the kindness and liberality of the donor," the only signatories thereof were
Felipe Balane and Juana Balane de Suterio. That was in fact the reason for
the separate instrument of acceptance signed by Salud a month later.

A strict interpretation of Article 633 can lead to no other conclusion than the
annulment of the donation for being defective in form as urged by the
petitioners. This would be in keeping with the unmistakable language of the
above-quoted provision. However, we find that under the circumstances of
the present case, a literal adherence to the requirement of the law might result
not in justice to the parties but conversely a distortion of their intentions. It is
also a policy of the Court to avoid such an intepretation.

The purpose of the formal requirement is to insure that the acceptance of the
donation is duly communicated to the donor. In the case at bar, it is not even
suggested that Juana was unaware of the acceptance for she in fact
confirmed it later and requested that the donated land be not registered during
her lifetime by Salud. 13 Given this significant evidence, the Court cannot in
conscience declare the donation ineffective because there is no notation in
the extrajudicial settlement of the donee's acceptance. That would be placing
too much stress on mere form over substance. It would also disregard the
clear reality of the acceptance of the donation as manifested in the separate
instrument dated June 20,1946, and as later acknowledged by Juana.

The cases cited by the parties in their respective memoranda are not really
in point. In Legasto v. Verzosa, 14 there was no evidence whatsoever that the
claimed donations had been accepted, as stressed by Justice Villa-Real. The
same observation is made of Santos v. Robledo, 15 where Justice Torres
noted that the acceptance of the donation did not appear in the deed of
donation or in any other instrument.

The petitioners would also fault the private respondents for laches and argue
that Salud's inaction in protection of her rights should bar her from asserting
them at this late hour. Specifically, it is pointed out that she failed to register
the deed of donation and its acceptance in 1946; did not oppose the inclusion
of the subject land in the inventory of Perfecta's properties submitted in the
intestate proceedings in 1946; did not object to the adjudication of the land to
Juana in the project of partition in 1951; did not protest the sale of the land to
Claudio Suterio in 1956; and did not question its registration in his name in
1958. It is contended that all these acts constitute laches, which has been
described by this Court thus:

An estoppel by laches arises from the negligence or omission to assert a right

within a reasonable time, warranting a presumption that the party entitled to
assert it either has abandoned it or declined to assert it. 16

The problem with the petitioners' theory is that it would regard Juana and
Salud as strangers when they are in fact mother and daughter. One may
expect a person to be vigilant of his rights when dealing with an acquaintance
or associate, or even with a friend, but not when the other person is a close
relative, as in the case at bar. To begin with, the land came from Juana
herself. Secondly, she requested her daughter not to register the land as long
as she was still alive so she could enjoy its fruits until her death. To Salud, it
was not difficult to comply with this request, coming as it did from her own
mother. There was no reason to disobey her. She did not have to protect
herself against her own mother. Indeed, what would have been unseemly was
her registering the land against her mother's request as if she had no
confidence in her. Salud did no less than what any dutiful daughter would
have done under the circumstances.

If Salud did not protest the inclusion of the land in the inventory of Perfecta's
properties and its subsequent adjudication to Juana in the intestate
proceedings, it was because she did not feel threatened by these acts. She
did not distrust her mother. Moreover, Juana had herself acknowledged the
donation when she was asked in whose name the property would be
registered following the intestate proceedings. Salud felt safe because she
had the extrajudicial settlement to rely on to prove that her mother and her
uncle had donated the subject land to her.

There is nothing in this instrument to suggest that the donation was to take
effect upon the death of the donors as to make it a donation mortis causa, as
urged by the petitioners. The donation became effective upon acceptance by
Salud except that, in obedience to her mother's request, she chose not to
register the land in the meantime and to allow her mother to enjoy its fruits.
What was deferred was not its effectivity but only its enjoyment by Salud.
Registration was not necessary to make the donation a binding commitment
insofar as the donors and the donee were concerned. 17
As for her inaction against the deed of sale in favor of her brother Claudio, it
should be noted in the first place that she was not aware of it when it was
executed in 1956. Her mother, who was already 76 years old at the time,
never informed her about it, nor did her brother or any of the defendants, for
reasons of their own. It was only later, when the sale was registered in 1958
and a new title to the land was issued to Claudio, that she started asking
questions. Even then, being a sister to Claudio, she did not immediatey take
legal steps.

It is natural, even among non-relatives, to seek a non-judicial settlement

through extra-legal measures before going to court. It is more so in the case
of relatives, who should avoid as much as possible the asperity and bitterness
of litigation. That is what Salud did when she repeatedly asked the petitioners
for the return of the property albeit to no avail. It was only when it became
clear that amicable persuasion was not possible that she decided to sue the
wife and children of her departed brother.

The petitioners stress that it took Salud all of seven years from the registration
of the land in Claudios's name before she filed the complaint for
reconveyance against them. That is true. But if one remembers that her
brother died only in 1961 and her own mother only in 1963, at the age of 83,
it will be easy to understand the reason for the delay, which would otherwise
have been unjustified. Suits among brothers and sisters are especially painful
to their parents. Salud must have thought many times about filing her
complaint against her brother Claudio while her old mother was still alive. In
fact, Salud hesitated still even after her mother's death and took two more
years before she finally filed her complaint against Claudio's wife and
children.

It is clear that Juana Balane de Suterio had no right to sell the subject land to
Claudio because she was no longer its owner, having previously donated it
to her daughter Salud. Juana herself was holding the land merely as a trustee
of Salud, who had transferred possession to her mother at the old woman's
request. The deed of sale was itself vitiated by bad faith as Claudio is
presumed to have known of the previous donation to his sister Salud, whose
acceptance of the donation was formally witnessed by hiw own wife, the
herein principal petitioner. 18 When Claudio registered the land in his name
knowing there was a flaw in his title, an implied trust was created in favor of
Salud as the real owner of the property in accordance with Article 1456 of the
Civil Code, reading as follows:

If the property is acquired through mistake or fraud, the person obtaining it is,
by force of law, considered a trustee of an implied trust for the benefit of the
person from whom the property comes.

As trustor, Salud had every right to sue for the recovery of the land in the
action for reconveyance against Claudio's heirs. As we said in Vda. de
Jacinto, et al. v. Vda. de Jacinto, et al. ... 19

Public policy demands that a person guilty of fraud or at least, of breach of

trust, should not be allowed to use a Torrens title as a shield against the
consequences of his own wrongdoing.

The petitioners do not insist on prescription as a bar to the action for

reconveyance, and understandably so. The legal principle is that if the
registration of the land is fraudulent and the person in whose name the land
is registered thus holds it as a mere trustee, the real owner is entitled to file
an action for reconveyance of the property within a period of ten years. As we
have held in many cases:

Where the action is one for reconveyance based on constructive trust, a ten-
year period is allowed. 20

An action for reconveyance of realty, based upon a constructive or implied

trust resulting from fraud, may be barred by prescription. The prescriptive
period is reckoned from the issuance of the title which operates as a
constructive notice. 21

While actions to enforce a constructive trust prescribe in 10 years from

registration of the property, private respondents' right commenced from actual
discovery of petitioner's act of defraudation. 22

The record shows that while the land was registered in the name of Claudio
Suterio, Sr. in 1958, the complaint for reconveyance was filed by the
petitioners in 1965, or still within the ten-year prescriptive period.

The last issue raised by the petitioners, viz., the validity of the deed of sale
executed by Juana Balane de Suterio on January 29,1950, in favor of Salud
Suterio, 23 need not detain us too long. The trial court sustained the contract
for lack of sufficient evidence to invalidate it and was upheld by the
respondent court. We see no reason to disturb their factual finding, absent a
showing that it was reached arbitrarily. Interestingly, it occurred to the
petitioners to question the transaction only when they were sued by the
private respondents, after ten years from the date of the sale. This is an even
longer period than the nine years during which the petitioners say Salud
Suterio was sleeping on her rights following the sale of her land to Claudio
Suterio.

WHEREFORE, the petition is DENIED, with costs against the petitioners. It

is so ordered.