G.R. No.
194336               March 11, 2013 x x x The land title of [petitioner] only proves that it is the
PILAR DEVELOPMENT CORPORATION, Petitioner,
vs.
RAMON DUMADAG, EMMA BACABAC, RONALDO
NAVARRO, JIMMY PAGDALIAN, PAY DELOS
SANTOS, ARMANDO TRILLOS, FELICISIMO
TRILLOS, ARCANGEL FLORES, EDDIE MARTIN,
PRESILLA LAYOG, CONRADO CAGUYONG, GINA
GONZALES, ARLENE PEDROSA, JOCELYN
ABELINO, ROQUE VILLARAZA, ROLANDO
VILLARAZA, CAMILO GENOVE, NILDA ROAYANA,
SUSAN ROAYANA, JUANCHO PANGANIBAN, BONG
DE GUZMAN, ARNOLD ENVERSO, DONNA DELA
RAZA, EMELYN HAGNAYA, FREDDIE DE LEON,
RONILLO DE LEON, MARIO MARTINEZ, and PRECY
LOPEZ, Respondents.
DECISION
PERALTA, J.:
Challenged in this petition for review on certiorari under Rule
45 of the Rules of Civil Procedure are the March 5, 2010
Decision1 and October 29, 2010 Resolution2 of the Court of
Appeals (CA) in CA-G.R. CV No. 90254, which affirmed the
May 30, 2007 Decision3 of the Las Piñas Regional Trial Court,
Branch 197 (trial court) dismissing the complaint filed by
petitioner.
On July 1, 2002, petitioner filed a Complaint4 for accion
publiciana with damages against respondents for allegedly
building their shanties, without its knowledge and consent, in
its 5,613-square-meter property located at Daisy Road, Phase
V, Pilar Village Subdivision, Almanza, Las
Piñas City. It claims that said parcel of land, which is duly
registered in its name under Transfer Certificate of Title No.
481436 of the Register of Deeds for the Province of Rizal, was
designated as an open space of Pilar Village Subdivision
intended for village recreational facilities and amenities for
subdivision residents.5 In their Answer with
Counterclaim,6 respondents denied the material allegations of
the Complaint and briefly asserted that it is the local
government, not petitioner, which has jurisdiction and
authority over them.
Trial ensued. Both parties presented their respective witnesses
and the trial court additionally conducted an ocular inspection
of the subject property.
On May 30, 2007, the trial court dismissed petitioner’s
complaint, finding that the land being occupied by respondents
are situated on the sloping area going down and leading
towards the Mahabang Ilog Creek, and within the three-meter
legal easement; thus, considered as public property and part of
public dominion under Article 5027 of the New Civil Code
(Code), which could not be owned by petitioner. The court
held:
owner in fee simple of the respective real properties described
therein, free from all liens and encumbrances, except such as
may be expressly noted thereon or otherwise reserved by law
x x x. And in the present case, what is expressly reserved is
what is written in TCT No. T-481436, to wit "that the 3.00
meter strip of the lot described herein along the Mahabang
Ilog Creek is reserved for public easement purposes. (From
OCT 1873/A-50) and to the limitations imposed by Republic
Act No. 440. x x x"8
The trial court opined that respondents have a better right to
possess the occupied lot, since they are in an area reserved for
public easement purposes and that only the local government
of Las Piñas City could institute an action for recovery of
possession or ownership.
Petitioner filed a motion for reconsideration, but the same was
denied by the trial court in its Order dated August 21,
2007.9 Consequently, petitioner elevated the matter to the
Court of Appeals which, on March 5, 2010, sustained the
dismissal of the case.
Referring to Section 210 of Administrative Order (A.O.) No.
99-21 of the Department of Environment and Natural
Resources (DENR), the appellate court ruled that the 3-meter
area being disputed is located along the creek which, in turn, is
a form of a stream; therefore, belonging to the public
dominion. It said that petitioner could not close its eyes or
ignore the fact, which is glaring in its own title, that the 3-
meter strip was indeed reserved for public easement. By
relying on the TCT, it is then estopped from claiming
ownership and enforcing its supposed right. Unlike the trial
court, however, the CA noted that the proper party entitled to
seek recovery of possession of the contested portion is not the
City of Las Piñas, but the Republic of the Philippines, through
the Office of the Solicitor General (OSG), pursuant to Section
10111 of Commonwealth Act (C.A.) No. 141 (otherwise
known as The Public Land Act).
The motion for reconsideration filed by petitioner was denied
by the CA per Resolution dated October 29, 2010, hence, this
petition.
Anchoring its pleadings on Article 63012 of the Code,
petitioner argues that although the portion of the subject
property occupied by respondents is within the 3-meter strip
reserved for public easement, it still retains ownership thereof
since the strip does not form part of the public dominion. As
the owner of the subject parcel of land, it is entitled to its
lawful possession, hence, the proper party to file an action for
recovery of possession against respondents conformably with
Articles 42813 and 53914 of Code.
We deny.
An easement or servitude is a real right on another's property,
corporeal and immovable, whereby the owner of the latter
must refrain from doing or allowing somebody else to do or
something to be done on his or her property, for the benefit of
another person or tenement; it is jus in re aliena, inseparable
from the estate to which it actively or passively belongs,
indivisible, perpetual, and a continuing property right, unless
extinguished by causes provided by law.15 The Code defines
easement as an encumbrance imposed upon an immovable for
the benefit of another immovable belonging to a different
owner or for the benefit of a community, or of one or more
persons to whom the encumbered estate does not
belong.16 There are two kinds of easement according to source:
by law or by will of the owners – the former are called legal
and the latter voluntary easement.17 A legal easement or
compulsory easement, or an easement by necessity constituted
by law has for its object either public use or the interest of
private persons.18
While Article 630 of the Code provides for the general rule
that "the owner of the servient estate retains the ownership of
the portion on which the easement is established, and may use
the same in such a manner as not to affect the exercise of the
easement," Article 635 thereof is specific in saying that "all
matters concerning easements established for public or
communal use shall be governed by the special laws and
regulations relating thereto, and, in the absence thereof, by the
provisions of this Title Title VII on Easements or Servitudes."
In the case at bar, the applicability of DENR A.O. No. 99-21
dated June 11, 1999, which superseded DENR A.O. No. 97-
0519 dated March 6, 1997 and prescribed the revised guidelines
in the implementation of the pertinent provisions of Republic
Act (R.A.) No. 1273 and Presidential Decree (P.D.) Nos. 705
and 1067, cannot be doubted. Inter alia, it was issued to
further the government’s program of biodiversity preservation.
Aside from Section 2.1 above-quoted, Section 2.3 of which
further mandates:
2.3 Survey of Titled Lands:
2.3.1 Administratively Titled Lands:
The provisions of item 2.1.a and 2.1.b shall be observed as the
above. However, when these lands are to be subdivided,
consolidated or consolidated-subdivided, the strip of three (3)
meters which falls within urban areas shall be demarcated and
marked on the plan for easement and bank protection.
The purpose of these strips of land shall be noted in the
technical description and annotated in the title.
xxxx
2.3.3 Complex Subdivision or Consolidation Subdivision
Surveys for Housing/Residential, Commercial or Industrial
Purposes:
When titled lands are subdivided or consolidated-subdivided
into lots for residential, commercial or industrial purposes the
segregation of the three (3) meter wide strip along the banks of
rivers or streams shall be observed and be made part of the
open space requirement pursuant to P.D. 1216.
The strip shall be preserved and shall not be subject to
subsequent subdivision. (Underscoring supplied)
Certainly, in the case of residential subdivisions, the allocation
of the 3-meter strip along the banks of a stream, like the
Mahabang Ilog Creek in this case, is required and shall be
considered as forming part of the open space requirement
pursuant to P.D. 1216 dated October 14, 1977.20 Said law is
explicit: open spaces are "for public use and are, therefore,
beyond the commerce of men" and that "[the] areas reserved
for parks, playgrounds and recreational use shall be non-
alienable public lands, and non-buildable."
Running in same vein is P.D. 1067 or The Water Code of the
Philippines21 which provides:
Art. 51. The banks of rivers and streams and the shores of the
seas and lakes throughout their entire length and within a zone
of three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along
their margins, are subject to the easement of public use in the
interest of recreation, navigation, floatage, fishing and salvage.
No person shall be allowed to stay in this zone longer than
what is necessary for recreation, navigation, floatage, fishing
or salvage or to build structures of any kind. (Underscoring
supplied)
Thus, the above prove that petitioner’s right of ownership and
possession has been limited by law with respect to the 3-meter
strip/zone along the banks of Mahabang Ilog Creek. Despite
this, the Court cannot agree with the trial court’s opinion, as to
which the CA did not pass upon, that respondents have a
better right to possess the subject portion of the land because
they are occupying an area reserved for public easement
purposes. Similar to petitioner, respondents have no right or
title over it precisely because it is public land. Likewise, we
repeatedly held that squatters have no possessory rights over
the land intruded upon.22 The length of time that they may
have physically occupied the land is immaterial; they are
deemed to have entered the same in bad faith, such that the
nature of their possession is presumed to have retained the
same character throughout their occupancy.23
As to the issue of who is the proper party entitled to institute a
case with respect to the 3-meter strip/zone, We find and so
hold that both the Republic of the Philippines, through the
OSG and the local government of Las Piñas City, may file an
action depending on the purpose sought to be achieved. The
former shall be responsible in case of action for reversion
under C.A. 141, while the latter may also bring an action to
enforce the relevant provisions of Republic Act No. 7279
(otherwise known as the Urban Development and Housing Act
of 1992).24 Under R.A. 7279, which was enacted to uplift the
living conditions in the poorer sections of the communities in
urban areas and was envisioned to be the antidote to the
pernicious problem of squatting in the metropolis,25 all local
government units (LGUs) are mandated to evict and demolish
persons or entities occupying danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines,
waterways, and other public places such as sidewalks, roads,
parks, and playgrounds.26 Moreover, under pain of
administrative and criminal liability in case of non-
compliance,27 it obliges LGUs to strictly observe the
following:
Section 29. Resettlement. - Within two (2) years from the
effectivity of this Act, the local government units, in
coordination with the National Housing Authority, shall
implement the relocation and resettlement of persons living in
danger areas such as esteros, railroad tracks, garbage dumps,
riverbanks, shorelines, waterways, and in other public places
such as sidewalks, roads, parks and playgrounds. The local
government unit, in coordination with the National Housing
Authority, shall provide relocation or resettlement sites with
basic services and facilities and access to employment and
livelihood opportunities sufficient to meet the basic needs of
the affected families.1âwphi1
Section 30. Prohibition Against New Illegal Structures. - It
shall be unlawful for any person to construct any structure in
areas mentioned in the preceding section. After the effectivity
of this Act, the barangay, municipal or city government units
shall prevent the construction of any kind or illegal dwelling
units or structures within their respective localities. The head
of any local government unit concerned who allows, abets or
otherwise tolerates the construction of any structure in
violation of this section shall be liable to administrative
sanctions under existing laws and to penal sanctions provided
for in this Act.
Yet all is not lost for petitioner. It may properly file an action
for mandamus to compel the local government of Las Piñas
City to enforce with reasonable dispatch the eviction,
demolition, and relocation of respondents and any other
persons similarly situated in order to give flesh to one of the
avowed policies of R.A. 7279, which is to reduce urban
dysfunctions, particularly those that adversely affect public
health, safety, and ecology.28
ALICIA B. REYES, Petitioner,
vs.
SPOUSES FRANCISCO S. VALENTIN and ANATALIA
RAMOS, Respondents.
DECISION
LEONEN, J.:
This is a Rule 45 Petition1 of the Court of Appeals
Decision2 dated August 12, 2010 and of the Court of Appeals
Resolution3 dated October 28, 2010.
On March 28, 2006, petitioner Alicia B. Reyes, through
Dolores B. Cinco,4 filed a Complaint5 before the Regional
Trial Court of Maloles, Bulacan, for easement of right ofway
against respondents, Spouses Francisco S. Valentin and
Anatalia Ramos.6
In her Complaint before the Regional Trial Court, petitioner
alleged that she was the registered owner of a 450-square-
meter parcel of land in Barangay Malibong Bata, Pandi,
Bulacan, designated as Lot No. 3-B-12 and covered by TCT
No. T-343642-(M).7 The property used to be a portion of Lot
No. 3-B8 and was surrounded by estates belonging to other
persons.9 Petitioner also alleged that respondents’ 1,500-
square-meter property surrounded her property, and that it was
the only adequate outlet from her property to the highway.10 A
113-square-meter portion of respondents’ property was also
the "point least prejudicial to the [respondents]."11 The
easement sought was the vacant portion near the boundary of
respondents’ other lot.12

Indeed, as one of the basic human needs, housing is a matter

of state concern as it directly and significantly affects the
general welfare.29

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

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

SO ORDERED.

Figure 1. Drawing13 showing the location of petitioner’s and

respondents’ properties in relation to the proposed easement.
Petitioner’s property is located on the leftmost part of the
G.R. No. 194488               February 11, 2015 drawing. Respondents’ property and the proposed 113-square-
meter easement are located on the drawing’s right side that
contains petitioner’s property. Barangay Malibong Bata Road
can be seen on the rightmost part of the drawing.
Petitioner insisted that her property was not isolated because
of her own acts.14 When her mother gave the property to her as
part of her inheritance, there was no intention for the property
to have no outlet.15
According to petitioner, her and respondents’ lots were
previously owned by her mother. Respondents’ lot was given
to Dominador Ramos (Dominador) who allegedly was
respondents’ predecessor-in-interest. Dominador was also her
mother’s brother and caretaker of properties.16
Only 500 square meters were given to Dominador. Part of the
1,500 square meters was intended as a right of way.
Dominador was tasked to prepare the documents. But, instead
of limiting the conveyance to himself to 500 square meters of
the property, he conveyed the whole 1,500 square meters,
including that which was supposed to be the access to the
barangay road.17 Petitioner’s mother only learned about what
Dominador did when a meeting was called in 1989 regarding
the implementation of the Comprehensive Agrarian Reform
Program.18 She did not cause the recovery of her title because
at that time, the Register of Deeds of Bulacan was razed by
fire, causing the destruction of the documents covering the
subject properties. Dominador was also her brother, whom she
presumed would give her a right of way to the main road.
Instead of giving way, however, he closed the passage,
causing petitioner’s property’s isolation.19 Despite demands
and willingness to pay the amount, respondents refused to
accede to petitioner’s claims.20
21
In their Answer,  respondents contended that the isolation of
petitioner’s property was due to her mother’s own act of
subdividing the property among her children without regard to
the pendency of an agrarian case between her and her
tenants.22 The property chosen by petitioner as easement was
also the most burdensome for respondents.23 Respondents
pointed to an open space that connected petitioner’s property
to another public road.24
Upon agreement by the parties, the Branch Clerk of Court
conducted an ocular inspection of the premises in February
2007, in the presence of the parties.25
After an Ocular Inspection Report26 was submitted on March
2, 2007, the case was considered submitted for decision.27
On April 11, 2007, the trial court issued its
Decision,28 dismissing the Complaint for easement of right of
way, thus:29
WHEREFORE, finding the prayer for a grant of compulsory
easement of right of way on a 113 square meter portion of
defendants’ property to be devoid of merit, the same is hereby
DENIED. Consequently, the case is ordered DISMISSED with
no pronouncements as to damages and costs.30
The trial court found that petitioner’s proposed right of way
was not the least onerous to the servient estate of
respondents.31 It noted that the proposed right of way would
passthrough improvements, such as respondents’ garage,
garden, and grotto.32 The trial court also noted the existence of
an irrigation canal that limited access to the public
road.33 However, the trial court pointed out that"[o]ther than
the existing irrigation canal, no permanent
improvements/structures can be seen standing on the subject
rice land."34 Moreover, the nearby landowner was able to
construct a bridge to connect a property to the public
road.35 Hence, "[t]he way through the irrigation canal would . .
. appear to be the shortest and easiest way to reach the
barangay road."36
Petitioner appealed the Regional Trial Court’s Decision.37
On August 12, 2010, the Court of Appeals denied petitioner’s
appeal and affirmed in toto the Regional Trial Court’s
Decision.38 It found no reversible error in the trial court’s
decision to dismiss petitioner’s complaint.39 Petitioner failed to
discharge the burden of proving the existence of the requisites
for the grant of easement.40 The Court of Appeals also found
that petitioner’s property had an adequate outlet to the public
road.41
Petitioner’s Motion for Reconsideration dated September 8,
2010 was denied by the Court of Appeals in a Resolution
promulgated on October 28, 2010.42
Petitioner filed this Petition on December 22, 201043 to assail
the Decision and Resolution of the Court of Appeals.44
We are asked to determine whether petitioner has the
compulsory easement of right of way over respondents’
property.1âwphi1
Petitioner argued that the Regional Trial Court and the Court
of Appeals failed to consider that it was not her property that
was adjacent to the irrigation canal but her sister’s. Her
property was surrounded by other estates belonging to other
persons. Hence, she had to pass through other properties
before reaching the irrigation canal.45
Moreover, even if she traversed the other properties, she
would only end up on the bank of the irrigation canal without
means to cross over.46 The fact that she had to construct a
bridge over the irrigation canal supported her position that
there was indeed no adequate outlet from her property to the
public road.47 In any case, a bridge will necessarily be an
obstruction on the public road.48
Petitioner further argued, citing Quimen v. Court of
Appeals,49 that "[t]he owner of the dominant estate can
demand a right of way through the servient estate provided he
indemnifies the owner thereof for the beneficial use of his
property."50
In their Comment51 on the Petition, respondents argued that
this case is already barred by prior judgment.52 Petitioner’s
predecessor-in-interest and her children had already
previously filed an action for easement of right of way against
respondents.53 That case had already been dismissed in favor
of respondents.54 The reason for the dismissal of the case was
the possibility of constructing a bridge over the irrigation
canal.55 Respondents further argued that the easement must be
real and not fictitious.56
The petition has no merit.
I
The issue of ownership is irrelevant
to the case; filing of a complaint for
easement is a recognition of the
servient property owner’s rights
Petitioner points out that respondents’ property was previously
owned by her mother. She alleged that her uncle who was her
mother’s caretaker of property fraudulently caused the titling
of the whole 1,500-square-meter property instead of just the
500-square-meter portion under his name.57
These allegations are relevant only if we are determining the
issue of the property’s ownership. However, this is not an
issue in this case. Petitioner does not question the ownership
or the registration of respondents’ title over the property. We
are limited to the issue of petitioner’s easement rights. On that
matter, petitioner’s act of filing a Complaint for easement of
right of way is an acknowledgement that the property is
owned by respondents. It is tantamount to a waiver of
whatever right or claim of ownership petitioner had over the
property.
II
Petitioner failed to satisfy the Civil
Code requirements for the grant of
easement rights
The acts of petitioner’s predecessor-in-interest necessarily
affect petitioner’s rights over the property. One of the
requirements for the grant of an easement of right of way is
that the isolation of the property is not due to the acts of the
dominant estate’s owners.
As shown in the pleadings submitted to the trial court,
petitioner and respondents had conflicting claims on this issue.
Petitioner alleged that it was her uncle, Dominador, who
caused the isolation of her property through his act of
appropriating for himself the whole property entrusted to him
by her mother. Moreover, he closed the passage from
petitioner’s property to the public road.
On the other hand, respondents alleged that the isolation was
due to the acts of petitioner’s predecessor-in-interest. She
allegedly subdivided the property in favor of her children,
including petitioner, without regard to the pending dispute
over the property. If the latter is true, petitioner could not
claim any right to compulsory easement even if it was not she
who caused the property’s isolation. Petitioner is bound by her
predecessor-in-interest’s act of causing the isolation of her
property.
Assuming, however, that petitioner or her mother did not
cause the isolation of petitioner’s property, petitioner still
cannot be granted the easement of right of way over the
proposed portion of respondents’ property. This is because she
failed to satisfy the requirements for an easement of right of
way under the Civil Code.
Articles 649 and 650 of the Civil Code provide the requisites
of an easement of right of way: ART. 649. The owner, or any
person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables
pertaining to other persons and without adequate outlet to a
public highway, is entitled to demand a right of way through
the neighboring estates, after payment of the proper
indemnity.
Should this easement be established in such a manner that its
use may be continuous for all the needs of the dominant estate,
establishing a permanent passage, the indemnity shall consist
of the value of the land occupied and the amount of the
damage caused to the servient estate.
In case the right of way is limited to the necessary passage for
the cultivation of the estate surrounded by others and for the
gathering of its crops through the servient estate without a
permanent way, the indemnity shall consist in the payment of
the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor’s own acts.
ART. 650. The easement of right of way shall be established
at the point least prejudicial to the servient estate, and, insofar
as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest.
Based on these provisions, the following requisites need to be
established before a person becomes entitled to demand the
compulsory easement of right of way:58
1. An immovable is surrounded by other immovables
belonging to other persons, and is without adequate outlet to a
public highway;
2. Payment of proper indemnity by the owner of the
surrounded immovable;
3. The isolation of the immovable is not due to its owner’s
acts; and
4. The proposed easement of right of way is established at the
point least prejudicial to the servient estate, and insofar as
consistent with this rule, where the distance of the dominant
estate to a public highway may be the shortest.
An easement of right of way is a real right. When an easement
of right of way is granted to another person, the rights of the
property’s owner are limited.59 An owner may not exercise
some of his or her property rights for the benefit of the person
who was granted the easement of right of way. Hence, the
burden of proof to show the existence of the above conditions
is imposed on the person who seeks the easement of right of
way.60
We agree with the Regional Trial Court’s and the Court of
Appeals’ findings that petitioner failed to establish that there
was no adequate outlet to the public highway and that the
proposed easement was the least prejudicial to respondents’
estate.
There is an adequate exit to a public highway.
This court explained in Dichoso, Jr. v. Marcos61 that the
convenience of the dominant estate’s owner is not the basis for
granting an easement of right of way, especially if the owner’s
needs may be satisfied without imposing the easement.62 Thus:
Mere convenience for the dominant estate is not what is
required by law as the basis of setting up a compulsory
easement. Even in the face of necessity, if it can be satisfied
without imposing the easement, the same should not be
imposed.
....
Also in Floro v. Llenado, we refused to impose a right of way
over petitioner’s property although private respondent’s
alternative route was admittedly inconvenient because he had
to traverse several ricelands and rice paddies belonging to
different persons, not to mention that said passage is
impassable during the rainy season.
And in Ramos, Sr. v. Gatchalian Realty, Inc., this Court
refused to grant the easement prayed for even if petitioner had
to pass through lots belonging to other owners, as temporary
ingress and egress, which lots were grassy, cogonal, and
greatly inconvenient due to flood and mud because such grant
would run counter to the prevailing jurisprudence that mere
convenience for the dominant estate does not suffice to serve
as basis for the easement.63 (Citations omitted) Access to the
public highway can be satisfied without imposing an easement
on respondents’ property.
The Ocular Inspection Report reads, in part:
Upon reaching the said place, pictures were taken in the
presence of both parties and their respective counsel. The
undersigned observed that fronting the lot where the house of
the defendant is erected, is Brgy. Malibong Bata public road.
The property of the plaintiff is located at the back of
defendant’s lot. Plaintiff, through her counsel, requested that
the side portion of defendants’ lot where the latter’s garage
and a grotto are erected or a portion of defendants’ newly
acquired adjacent lot be the right of way. This was objected to
by Atty. Batalla arguing that to grant the same is more
prejudicial to the defendants considering that the
improvements thereon will be affected and that there is
another existing public road which is nearer to the plaintiff’s
property. Atty. Sali admitted that there is another existing
public road but the right of way cannot be done as there is
more or less four-meter wide irrigation before reaching the
said public road.
In order to confirm if there is indeed another existing public
road which is nearer to plaintiff’s property, the undersigned
together with the above-mentioned court personnel and the
parties and their respective counsel, proceeded to the said
place. True enough, there is a public road also named Brgy.
Malibong Bata public road, fronting plaintiff’s property.
However, there is more or less four-meter wide irrigation
before reaching the said public road. It was also confirmed
that the two properties of the plaintiff are between the public
road which is adjacent to the irrigation. Atty. Sali manifested
that they already requested before the officers of the National
Irrigation Administration (NIA) for the grant of the right of
way but the same was disapproved. Atty. Batalla pointed out
that there are already some concrete bridges nearby the
properties of the plaintiff.64
Based on the Ocular Inspection Report, petitioner’s property
had another outlet to the highway. In between her property and
the highway or road, however, is an irrigation canal, which
can be traversed by constructing a bridge, similar to what was
done by the owners of the nearby properties.
There is, therefore, no need to utilize respondents’ property to
serve petitioner’s needs. Another adequate exit exists.
Petitioner can use this outlet to access the public roads.
The outlet referred to in the Ocular Inspection Report may be
longer and more inconvenient to petitioner because she will
have to traverse other properties and construct a bridge over
the irrigation canal before she can reach the road. However,
these reasons will not justify the imposition of an easement on
respondents’ property because her convenience is not the
gauge in determining whether to impose an easement of right
of way over another’s property.65 Petitioner also failed to
satisfy the requirement of "least prejudicial to the servient
estate."
Article 650 of the Civil Code provides that in determining the
existence of an easement of right of way, the requirement of
"least prejudic[e] to the servient estate" trumps "distance
[between] the dominant estate [and the] public highway."
"Distance" is considered only insofar as it is consistent to the
requirement of "least prejudice."
This court had already affirmed the preferred status of the
requirement of "least prejudice" over distance of the dominant
estate to the public highway.66 Thus, in Quimen, this court
granted the longer right of way over therein respondent’s
property because the shorter route required that a structure of
strong materials needed to be demolished.67 This court said:
[T]he court is not bound to establish what is the shortest
distance; a longer way may be adopted to avoid injury to the
servient estate, such as when there are constructions or walls
which can be avoided by a round about way, or to secure the
interest of the dominant owner, such as when the shortest
distance would place the way on a dangerous decline.
....
The criterion of least prejudice to the servient estate must
prevail over the criterion of shortest distance although this is a
matter of judicial appreciation. While shortest distance may
ordinarily imply least prejudice, it is not always so as when
there are permanent structures obstructing the shortest
distance; while on the other hand, the longest distance may be
free of obstructions and the easiest or most convenient to pass
through. In other words, where the easement may be
established on any of several tenements surrounding the
dominant estate, the one where the way is shortest and will
cause the least damage should be chosen. However, as
elsewhere stated, if these two (2) circumstances do not concur
in a single tenement, the way which will cause the least
damage should be used, even if it will not be the
shortest.68 (Citation omitted) Petitioner would have permanent
structures — such as the garage, garden, and grotto already
installed on respondent’s property — destroyed to
accommodate her preferred location for the right of way.
The cost of having to destroy these structures, coupled with
the fact that there is an available outlet that can be utilized for
the right of way, negates a claim that respondents’ property is
the point least prejudicial to the servient estate.
An easement is a limitation on the owner’s right to use his or
her property for the benefit of another. By imposing an
easement on a property, its owner will have to forego using it
for whatever purpose he or she deems most beneficial. Least
prejudice, therefore, is about the suffering of the servient
estate. Its value is not determined solely by the price of the
property, but also by the value of the owner’s foregone
opportunity for use, resulting from the limitations imposed by
the easement.69
Imposing an easement on the part of respondents’ property for
petitioner’s benefit would cost respondents not only the value
of the property but also the value of respondents’ opportunity
to use the property as a garage or a garden with a grotto.
Petitioner may use another outlet, which may provide longer
access from her property to the public highway, but is free
from obstructions. The four-meter wide irrigation canal may
be traversed upon construction of a bridge. As noted by the
trial court:
A neighboring land owner was able to construct a short
concrete bridge wide enough even for vehicles to pass through
the irrigation canal from his property to the barangay road.
The Court sees no reason why plaintiff could not do the same
and why it would not be allowed if carried in accordance with
the requirements set by NIA.70
Contrary to petitioner’s assertion, a reading of the August 17,
2005 National Irrigation Administration Letter-Response71 to
petitioner’s query regarding the possibility of constructing a
concrete bridge over the irrigation canal shows that petitioner
was not really disallowed from constructing a bridge. She was
merely given certain conditions, thus:
Wherefore, this office could not negate such
decision.72 However, request for grant of right of way for the
construction of bridge over an irrigation canal could be
granted subject to the following conditions[:] (1) that the
landowner will shoulder the cost of construction subject to the
design and specifications approved by this office[;] (2)
construction schedule must be informed for inspection[;] (3)
subject construction will not impede the free flow of irrigation
water[;] (4) distance between bridges will not hamper our
mechanical equipment to move freely within the area during
clearing schedule; (5) active participation of the landowner in
the clearing and maintenance of the canal for continuous water
flow; (6) any violation of the above conditions will mean
revocation of the permit and any damage to the canal
structures will mean restoration of the landowner at his own
cost.73
It is true that an easement of right of way may be granted even
if the construction of the bridge was allowed. However, in
determining if there is an adequate outlet or if the choice of
easement location is least prejudicial to the servient estate, this
court cannot disregard the possibility of constructing a bridge
over the four-meter-wide canal. This court must consider all
the circumstances of the case in determining whether
petitioner was able to show the existence of all the conditions
for the easement of right of way.
The Regional Trial Court and the Court of Appeals also
considered the aspect of necessity for an easement in
determining petitioner’s rights.
The trial court found that there is still no necessity for an
easement of right of way because petitioner’s property is
among the lots that are presently being tenanted by Dominador
and Filomena Ramos’ children.74 Petitioner is yet to use her
property. The Complaint for easement was found to have been
filed merely "for future purposes."75 Thus, according to the
Court of Appeals, "[a]dmittedly, there is no immediate and
imperative need for the construction of a right of way as the
dominant estate and its surrounding properties remain as
agricultural lands under tenancy."76
The aspect of necessity may not be specifically included in the
requisites for the grant of compulsory easement under the
Civil Code. However, this goes into the question of "least
prejudice." An easement of right of way imposes a burden on
a property and limits the property owner’s use of that property.
The limitation imposed on a property owner’s rights is
aggravated by an apparent lack of necessity for which his or
her property will be burdened.
III
The case is not barred by prior
judgment
Respondents argued in their Comment that the case was
already barred by prior judgment because petitioner’s
predecessor-in-interest and her siblings had already filed an
action for easement against respondents in 2004. This case,
according to respondents, had already been dismissed because
of the existence of another public road or highway, which can
be accessed after the construction of a bridge over the
irrigation canal.77

Respondents alleged that petitioner’s predecessor-in-interest

not only subdivided her property among her children, which
included petitioner. Petitioner’s predecessor-in-interest also
converted her property from farmland to home lots. This,
respondents argued, is prohibited under Section 73(c) and
73(e), and Section 74 of the Comprehensive Agrarian Reform
Law.78 Hence, the conversion was illegal, and this case still
involves the predecessor-in-interest’s property prior to its
subdivision.79

In her Reply,80 petitioner argued that the property was not

barred by prior judgment because she was already the
registered owner of her property before the complaint for
easement was filed by her mother and her siblings.

She was not a party to that case.81

Dismissal of a case on the ground of res judicata requires that

a final judgment must have been rendered between the same
parties over the same subject matter and cause of action.82

Even if it is true that this and the alleged previous case involve
the same issue, there can be no res judicata if there is no
identity of parties and/or subject matter. For purposes of
determining if there is identity of parties, two different persons
may be considered as one identity if they represent the same
interest or cause.83

Based on the records, petitioner's certificate of title was issued

in her name on April 12, 1999.84 If as admitted by respondents,
the previous case for easement was filed in 2004 and
petitioner was not represented in the case, then there could
have been no identity of the parties and subject matter.
Petitioner's interest could not have been represented by her
predecessor-in-interest or by her siblings because none of
them were the owners of petitioner's property in 2004.

Respondents' insistence that the cases involve the same

interests because the alleged conversion of petitioner's
predecessor-in-interest's property from farmland to home lots
was illegal involves the determination of whether there was
such conversion. The determination of whether there was
conversion may be relevant to the issue of the validity of
petitioner's title but is not relevant to the issue of the existence
of petitioner's easement rights. This determination needs
proper reception and assessment of evidence, which is not the
province of this court. That issue should be threshed out in a
separate case directly attacking petitioner's certificate of title.

WHEREFORE, the Court of Appeals Decision promulgated

on August 12, 2010 and its Resolution promulgated on
October 28, 2010 are AFFIRMED.

SO ORDERED.

G.R. No. 175510               July 28, 2008
SPOUSES VICTOR VALDEZ AND JOCELYN
VALDEZ, represented by their Attorney-In-Fact,
VIRGILIO VALDEZ, Petitioners,
vs.
SPOUSES FRANCISCO TABISULA AND CARIDAD
TABISULA, Respondents.
DECISION
CARPIO MORALES, J.:
Petitioner-spouses Victor and Jocelyn Valdez purchased via a
January 11, 1993 Deed of Absolute Sale1 (the deed) from
respondent-spouses Francisco Tabisula and Caridad Tabisula a
200 square meter (sq.m.) portion (the subject property) of a
380 sq. m. parcel of land located in San Fernando, La Union,
which 380 sq.m. parcel of land is more particularly described
in the deed as follows:
A parcel of land classified as residential lot, bounded on the
North by Lot No. 25569, on the East, by Lot No. 247, 251, on
the South, by a Creek and on the West, by Lot No. 223-A,
declared under Tax Decl. No. 52820, with an area of 380
square meters, more or less, and assessed at ₱ 17100.00 for
the current year. It is not registered under Act 496 nor under
the Spanish Mortgage Law. (Emphasis and underscoring
supplied)
The pertinent portions of the deed read:
xxxx
That for and in consideration of the sum of SEVENTY
THOUSAND (P70,000.00) PESOS, Philippine Currencyp
[sic] paid to us at our entire satisfaction by spouses VICTOR
and JOECELYN [sic] VALDEZ, both of legal age, Filipinos
and residents of 148 P. Burgos St., San Fernando, La Union,
receipt of which is hereby acknowledged, do hereby SELL,
CONVEY and TRANSFER by way of absolute sale unto the
said spouses Victor and Joecelyn Valdez, their heirs and
assigns, the TWO HUNDRED (200) SQUARE METERS,
EASTERN PORTION of the parcel of land above-described,
free from all liens and encumbrances.
xxxx
That now and hereinafter, said VENDEE-SPOUSES VICTOR
and JOECELYN [sic] VALDEZ shall be the absolute owners
of the said 200 sq. meters, eastern portion and that we shall
warrant and forever defend their ownership of the same
against the claims of all persons whomsoever; they shall be
provided a 2 1/2 meters [sic] wide road right-of-way on the
western side of their lot but which is not included in this sale.
x x x.x (Emphasis and underscoring supplied)
Respondents subsequently built a concrete wall on the western
side of the subject property.2 Believing that that side is the
intended road right of way mentioned in the deed, petitioners,
through their representative, reported the matter to the
barangay for mediation and conciliation. Respondents failed to
attend the conferences scheduled by the barangay, however,
drawing petitioners to file in April 1999 or more than six years
after the execution of the deed a Complaint for Specific
Performance with Damages3 against respondents before the
Regional Trial Court (RTC) of San Fernando City, La Union.
In their complaint, petitioners alleged that they purchased the
subject property on the strength of respondents’ assurance of
providing them a road right of way. They thus prayed that
respondents be ordered to provide the subject property with a
2½-meter wide easement and to remove the concrete wall
blocking the same.4
Respondents, in their Answer with Compulsory Counterclaim
(for damages and attorney’s fees),5 averred that the 2 ½-meter
easement should be taken from the western portion of the
subject property and not from theirs;6 and petitioners and their
family are also the owners of two properties adjoining the
subject property, which adjoining properties have access to
two public roads or highways – the bigger one which adjoins
P. Burgos St. on the north, and the smaller one which abuts an
existing barangay road on the north.7
Respondents further averred that they could not have agreed to
providing petitioners an easement "on the western side of their
lot" as there exists a two-storey concrete house on their lot
where the supposed easement is to be located, which was
erected long before the subject property was sold to
petitioners.8 In support of this claim, respondents submitted a
February 20, 2003 letter from the City Engineer’s Office.9
Branch 26 of the RTC of San Fernando dismissed petitioners’
complaint and granted respondents’ Counterclaim by
Decision10 of March 18, 2005, the dispositive portion of which
reads:
WHEREFORE, and in view of all the foregoing, judgment is
hereby rendered finding the defendants as against the plaintiffs
and hereby orders the Complaint dismissed for being
unmeritorious and plaintiffs are hereby ordered to pay the
defendants, the following:
1) P100,000.00 as moral damages;
2) P50,000.00 as exemplary damages;
3) P50,000.00 as attorney’s fees;
4) P30,000.00 as expenses of litigation; and
5) To pay the costs.
SO ORDERED.11 (Underscoring supplied)
On appeal by petitioners, the Court of Appeals, by Decision of
May 29, 2006,12 affirmed that of the trial court, it holding that
the deed only conveyed ownership of the subject property to
petitioners, and that the reference therein to an easement in
favor of petitioners is not a definite grant-basis of a voluntary
easement of right of way.13
The appellate court went on to hold that petitioners are neither
entitled to a legal or compulsory easement of right of way as
they failed to present circumstances justifying their
entitlement to it under Article 649 of the Civil Code.14
Petitioners’ motion for reconsideration15 having been denied
by the Court of Appeals by Resolution of November 15, 2006,
they filed the present petition for review on certiorari faulting
the trial [sic] court
I. . . . IN RULING THAT THE RIGHT OF WAY IS NOT
PART OF THE ABSOLUTE DEED OF SALE DATED
JANUARY 11, 1993;
II. . . . IN RULING THAT THE PROVISION OF THE
ABSOLUTE DEED OF SALE GRANTING A RIGHT OF
WAY IS VAGUE AND OBSCURE;
III. . . . IN AWARDING MORAL AND EXEMPLARY
DAMAGES TO THE RESPONDENTS.16 (Underscoring
supplied)
An easement or servitude is "a real right constituted on
another’s property, corporeal and immovable, by virtue of
which the owner of the same has to abstain from doing or to
allow somebody else to do something on his property for the
benefit of another thing or person."17 The statutory basis of
this right is Article 613 of the Civil Code which reads:
Art. 613. An easement or servitude is an encumbrance
imposed upon an immovable for the benefit of another
immovable belonging to a different owner.
The immovable in favor of which the easement is established
is called the dominant estate; that which is subject thereto, the
servient estate.
There are two kinds of easements according to source – by law
or by the will of the owners. So Article 619 of the Civil Code
provides:
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.
From the allegations in petitioners’ complaint, it is clear that
what they seek to enforce is an alleged grant in the deed by
respondents of an easement reading: "they shall be provided a
2 ½ meters wide road right-of-way on the western side of their
lot but which is not included in this sale."
Article 1358 of the Civil Code provides that any transaction
involving the sale or disposition of real property must be in
writing.18 The stipulation harped upon by petitioners that they
"shall be provided a 2 ½ meters wide road right-of-way on the
western side of their lot but which is not included in this sale"
is not a disposition of real property. The proviso that the
intended grant of right of way is "not included in this sale"
could only mean that the parties would have to enter into a
separate and distinct agreement for the purpose.19 The use of
the word "shall," which is imperative or mandatory in its
ordinary signification, should be construed as merely
permissive where, as in the case at bar, no public benefit or
private right requires it to be given an imperative meaning.20
Besides, a document stipulating a voluntary easement must be
recorded in the Registry of Property in order not to prejudice
third parties. So Articles 708 and 709 of the Civil Code call
for, viz:
Art. 708. The Registry of Property has for its object the
inscription or annotation of acts and contracts relating to the
ownership and other rights over immovable property.
Art. 709. The titles of ownership, or of other rights over
immovable property, which are not duly inscribed or
annotated in the Registry of Property shall not prejudice third
persons.
Petitioners are neither entitled to a legal or compulsory
easement of right of way. For to be entitled to such kind of
easement, the preconditions under Articles 649 and 650 of the
Civil Code must be established, viz:
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.
xxxx
This easement is not compulsory if the isolation of the
immovable is due to the proprietor’s own acts. (Underscoring
supplied)
Art. 650. The easement of right of way shall be established at
the point least prejudicial to the servient estate, and, insofar as
consistent with this rule, where the distance from the dominant
estate to a public highway may be the shortest. (Underscoring
supplied)
Thus, to be conferred a legal easement of right of way under
Article 649, the following requisites must be complied with:
(1) the property is surrounded by other immovables and has no
adequate outlet to a public highway; (2) proper indemnity
must be paid; (3) the isolation is not the result of the owner of
the dominant estate’s 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, the distance from
the dominant estate to a public highway may be the
shortest.21 The onus of proving the existence of these
prerequisites lies on the owner of the dominant estate,22 herein
petitioners.
As found, however, by the trial court, which is supported by
the Sketch23 (Exhibit "B"; Exhibit "1") of the location of the
lots of the parties and those adjoining them, a common
evidence of the parties, petitioners and their family are also the
owners of two properties adjoining the subject property which
have access to two public roads or highways.24
Since petitioners then have more than adequate passage to two
public roads, they have no right to demand the grant by
respondents of an easement on the "western side of
[respondents’] lot."
It may not be amiss to note at this juncture that at the time the
deed was executed in 1993, the barangay road-Exhibit "1-G,"
by which petitioners could access Burgos Street-Exhibit "1-F,"
was not yet in existence; and that the Interior Street-Exhibit
"1-H," which petitioners via this case seek access to with a
right of way, was still a creek,25 as reflected in the earlier-
quoted particular description of respondents’ parcel of land
from which the subject property originally formed part.
Respecting the grant of damages in favor of respondents by
the trial court which was affirmed by the appellate court, the
Court finds the same baseless.1avvphi1
To merit an award of moral damages, there must be proof of
moral suffering, mental anguish, fright and the like. It is not
enough that one suffers sleepless nights, mental anguish,
serious anxiety as a result of the actuation of the other
party.26 Invariably, such actuation must be shown by clear and
convincing evidence27 to have been willfully done in bad faith
or with ill-motive.
lupon or pangkat in compliance with summons issued
pursuant to this Rule may be punished by the city or municipal
court as for indirect contempt of court upon application filed
therewith by the lupon chairman, the pangkat chairman, or by
any of the contending parties. Such refusal or willful failure to
appear shall be reflected in the records of the lupon secretary
or in the minutes of the pangkat secretary and shall bar the
complainant who fails to appear, from seeking judicial
recourse for the same course of action, and the respondent
who refuses to appear, from filing any counterclaim arising
out of, or necessarily connected with the complaint.
x x x x (Emphasis and underscoring supplied)
While respondent Caridad Tabisula claimed that she always
appeared, when summoned, before the barangay lupon,29 the
following Certificate to File Action30 belies the claim.
xxxx
This is to certify that respondents failed to appear for (2)
Mediation Proceeding before our Punong Barangay thus the
corresponding complaint may now be filed in court.
Issued this 24th day of November 1998 at the Multi Purpose
Hall, Barangay 1 City of San Fernando (LU).
x x x x (Underscoring supplied)
The award for moral damages being thus baseless, that for
exemplary damages must too be baseless.
As for the award of attorney's fees and expenses of litigation,
respondents have not shown their entitlement thereto in
accordance with Article 2208 of the Civil Code.
WHEREFORE, the May 29, 2006 Decision and November 15,
2006 Resolution of the Court of Appeals are MODIFIED in
that the grant of the Counterclaim of respondents, Spouses
Francisco Tabisula and Caridad Tabisula, is reversed and set
aside. In all other respects, the challenged decision is
AFFIRMED.
Costs against petitioners.
SO ORDERED.

In respondents’ case, they predicated their Counterclaim for

damages on general allegations of sickness, humiliation and
embarrassment, without establishing bad faith, fraud or ill-
motive on petitioners’ part.28

More importantly, respondents are precluded from filing any

counterclaim in light of Article 199 of Rule XXVI of the
Rules and Regulations Implementing the Local Government
Code of 1991 reading:

xxxx

ARTICLE 199. Penalty for Refusal or Failure of Any Party or

Witness to Appear before the Lupon or Pangkat. — Refusal or
willful failure of any party or witness to appear before the
G.R. No. 207146

SPOUSES LARRY AND ROSARITA

WILLIAMS, Petitioners
vs
RAINERO A. ZERDA, Respondent

DECISION

MENDOZA, J.:

This is a petition for review on certiorari assailing the

November 28, 2012 Decision1 and the April 16, 2013
Resolution2 of the Court of Appeals (CA) in CA-G.R. CV No.
01115-MIN, which reversed and set aside the September 11,
2006 Decision3 and the February 8, 2007 Order4 of the
Regional Trial Court, Branch 30, Surigao City, (RTC) in Civil
Case No. 6285, a case for easement of right of way.

The Facts

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

parcel of land, known as Lot No. 1177-B (dominant estate) of
the Surigao Cadastre, situated in Barangay Lipata, Surigao
City, with an area of 16,160 square meters (sq. m.), and
covered by Transfer Certificate of Title (TCT) No. T- 18074.
Immediately behind the dominant estate was Lot No. 7298, a
swampy mangrove area owned by the Republic of the
Philippines. On both sides were Lot No. 1177-C, registered
under the name of Woodridge Properties, Inc. and Lot No.
1206, in the name of Luis G. Dilag. In front was Lot No.
1201-A owned by petitioner-spouses Larry and Rosarita
Williams (Spouses Williams), where the national highway ran
along.5

On July 28, 2004, Zerda filed a complaint against Spouses

Williams for easement of right of way. The complaint alleged
that Zerda's lot was without adequate outlet to a public
highway, that it could not be accessed except by passing
through Spouses Williams' property; that the isolation of
Zerda's property was not due to his own acts, as it was the
natural consequence of its location; that the right of way he
was claiming was at a point least prejudicial to Spouses
Williams' property; and that on January 27, 2004, Zerda wrote
to Spouses Williams formally asking them to provide him with
right of way, for which he was willing to pay its reasonable
value or to swap a portion of his property, but Spouses
Williams refused.6

Spouses Williams countered that the complaint should be

dismissed for lack of cause of action because Zerda failed to
establish the requisites for the existence of right of way. They
claimed that sometime in May 2003, they were in negotiation
with Agripina Sierra (Sierra), the former owner of the
dominant estate, for its sale to them but the sale did not
materialize due to the intervention of Zerda. Spouses Williams
further averred that they undertook visible development
projects on their property as early as May 2003 amounting to
₱6,619,678.00; that the isolation of the dominant estate was
Zerda's fault; and that his requested right of way would cause
great damage and prejudice to them.7
The RTC Ruling
In its September 11, 2006 Decision, the RTC ruled in favor of
Spouses Williams. It found that the isolation of Zerda's lot was
due to his own acts because when he bought the said property,
he was aware that Spouses Williams had already started
introducing improvements on their own property. It stated that
Spouses Williams were able to prove that while they were in
negotiation with Sierra for the purchase of the dominant
estate, Zerda intervened and bought the land himself, knowing
full well that the land was surrounded by other immovables.8
The RTC also noted that the right of way requested by Zerda
was not the shortest distance from the dominant estate to the
public highway. It observed that the shortest distance began
"from the northeastern corner of Lot 1177-B, the dominant
estate, following the northern boundary of Lot 1201-A, the
servient estate, and running across the southeastern portion of
Lot 1177-C straight up to the public highway."9
Finally, the RTC granted the claim of Spouses Williams for
moral damages and exemplary damages. The fallo reads:
WHEREFORE, premises considered, let the herein complaint
be DISMISSED without pronouncement as to costs. However,
on the compulsory counterclaim, plaintiff is hereby ordered to
pay defendants moral damages in the sum of ₱30,000.00 and
exemplary damages of ₱20,000.00.
10
SO ORDERED.
Zerda filed a motion for reconsideration. In its February 8,
2007 Order,11 the RTC partially granted the motion by deleting
the award of moral damages.
Aggrieved, Zerda appealed before the CA.
The CA Ruling
In its assailed November 28, 2012 Decision, the
CA reversed and set aside the ruling of the RTC. It explained
that the isolation of Zerda's property was not due to his own
acts, and to deny the right of way to a purchaser of an
enclosed estate simply because of his prior knowledge that the
same was surrounded by immovables would render the law on
easements nugatory. "In effect, the purchaser would only be
filling into the shoe[s] of the previous owner of the isolated
property in the exercise of his right to demand an easement of
right of way. The new owner did not do anything that would
have caused the deliberate isolation of the property."12
Further, the CA declared that Zerda was not in bad faith when
he intervened in the negotiation for the sale of the dominant
estate between Sierra, the previous owner and Spouses
Williams. It noted that Sierra himself denied knowing Larry
Williams, thereby negating the spouses' claim of a negotiation.
The CA added that even if there was a prior negotiation, Sierra
could not be deprived of his right to sell his property to a
buyer of his own choosing.13
The CA also found that the right of way, proposed by Zerda,
was the shortest distance to the national highway and the least
prejudicial to the servient estate. It laid emphasis on Spouses
Williams' admission that they had no intention to build houses
in the area sought and that the 705.20 sq. m. long pathway
would only affect a small portion of their lot which had a total
area of 12,200 sq. m. The dispositive portion of the CA ruling
reads:
WHEREFORE, the appeal is GRANTED. The September 11,
2006 Decision and February 8, 2007 Order of the Regional
Trial Court, Branch 30, Surigao City is REVERSED and SET
ASIDE.
We hereby order (a) appellees to allow the right of passage by
the appellant thru their Lot 1201-A; and (b) appellant to pay
private respondent the indemnity therefor to be determined by
the trial court. The case is hereby REMANDED to the trial
court for the determination of the proper amount of indemnity
for the easement of right of way under Article 649.
SO ORDERED.14
Spouses Williams moved for reconsideration, but their motion
was denied by the CA in its assailed resolution, dated April
16, 2013.
Hence, this petition.
ISSUE
WHETHER RESPONDENT ZERDA IS ENTITLED TO
AN EASEMENT OF RIGHT OF WAY.
Spouses Williams argue that the respondent caused the
isolation of his property because he bought the lot with notice
that it had no access to the national highway and was
surrounded by other immovables; that the respondent was in
bad faith because he was aware that they were negotiating
with Sierra over the purchase of the dominant estate when he
intervened and bought the property himself; that the shortest
distance from the dominant estate to the public highway began
from the northeastern corner of Lot No. 1177-B (the dominant
estate) following the northern boundary of Lot No. 1201-A,
then passing through the southeastern portion of Lot No.
1171-C; and that the right of way requested by the respondent
was not the least prejudicial in view of the developments
introduced by them thereon.
Zerda was ordered by the Court to file his comment on the
petition of Spouses Williams. Despite several opportunities
granted to him, he failed to file his comment.1avvphi1 Thus,
his right to file a comment on the petition for review was
deemed waived.
The Court's Ruling
The conferment of the legal easement of right of way is
governed by Articles 649 and 650 of the Civil Code:
ART. 649. The owner, or any person who by virtue of a real
right may cultivate or use any immovable, which is
surrounded by other immovables pertaining to other persons
and without adequate outlet to a public highway, is entitled to
demand a right of way through the neighboring estates, after
payment of the proper indemnity.
Should this easement be established in such a manner that its
use may be continuous for all the needs of the dominant estate,
establishing a permanent passage, the indemnity shall consist
of the value of the land occupied and the amount of the
damage caused to the servient estate.
In case the right of way is limited to the necessary passage for
the cultivation of the estate surrounded by others and for the
gathering of its crops through the servient estate without a
permanent way, the indemnity shall consist in the payment of
the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the
immovable is due to the proprietor's own acts.
ART. 650. The easement of right of way shall be established
at the point least prejudicial to the servient estate, and, insofar
as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest.
In summary, an entitlement to the easement of right of way
requires that the following requisites must be met.
1. The dominant estate is surrounded by other immovables and
has no adequate outlet to a public highway (Art. 649, par. 1);
2. There is payment of proper indemnity (Art. 649, par. 1);
3. The isolation is not due to the acts of the proprietor of the
dominant estate (Art. 649, last par.); and
4. The right of way claimed is at the point least prejudicial to
the servient estate; and insofar as consistent with this rule,
where the distance from the dominant estate to a public
highway may be the shortest (Art. 650).15
All the above requisites are present in this case.
As regards the first requisite, there is no dispute that the
respondent's property was surrounded by other immovables
owned by different individuals, including Spouses Williams.
The isolation was further shown in the Sketch Plan16 prepared
by Honorato R. Bisnar, the geodetic engineer deputized by the
parties. Moreover, contrary to Spouses Williams' claim that
there was a barangay road closest to the dominant estate, the R
TC, during the ocular inspection, observed that "there was no
existing barangay road xxx."17
The second requisite of payment of indemnity was also
complied with by the respondent when he wrote Spouses
Williams on January 27, 2004, formally asking them to
provide him with a right of way, for which he was willing to
pay a reasonable value or to swap a portion of his property.18
Anent the third requisite, the isolation of the dominant estate
was not due to the respondent's own acts. The property he
purchased was already surrounded by other immovables
leaving him no adequate ingress or egress to a public highway.
Spouses Williams refused to grant a right of way and averred
that the isolation of the dominant estate was attributable to the
respondent's own acts. They pointed out that when the
respondent purchased the dominant estate, he knew that Sierra
was in negotiation with them for the sale of the dominant
estate, thus, he was in bad faith. Nonetheless, it cannot be used
to defeat the respondent's claim for a right of way. Sierra had
every right to sell his property to anybody. Further, when the
respondent bought the dominant estate there could have been
no existing contract of sale yet considering that Spouses
Williams and Sierra were still in negotiation.
Hence, consent, one of the essential requisites for a valid
contract, was lacking.
As to the fourth requisite, the Court finds that the right of way
sought by the respondent is at the point least prejudicial to the
servient estate and it is the shortest distance to the national
highway. This is evident in the Sketch Plan19 showing that the
requested right of way was alongside the perimeter of Spouses
Williams' property. Moreover, during the ocular inspection,
the RTC observed that the right of way, which the respondent
was seeking was alongside a precipice.20 Spouses Williams
insisted that they intended to build structures on the portion
claimed by the respondent, but at a safe distance from the
precipice, not immediately beside it. In addition, the 705.20
sq. m long pathway would only affect a small portion of the
12,200 sq. m. property of Spouses Williams, and for which the
respondent expressed willingness to pay.
Even assuming that the right of way being claimed by the
respondent is not the shortest distance from the dominant
estate to the public highway, it is well-settled that "[t]he
criterion of least prejudice to the servient estate must prevail
over the criterion of shortest distance although this is a matter
of judicial appreciation. xxx In other words, where the
easement may be established on any of several tenements
surrounding the dominant estate, the one where the way
is shortest and will cause the least damage should be chosen.
If having these two (2) circumstances do not concur in a single
tenement, the way which will cause the least damage should
be used, even if it will not be the shortest."21 As previously
discussed, the right of way claimed by the respondent is at a
point least prejudicial to the servient estate.
WHEREFORE, the petition is DENIED. The November 28,
2012 Decision and the April 16, 2013 Resolution of the Court
of Appeals in CAG. R. CV No. 01115-MIN,
are AFFIRMED in toto.
G.R. No. 163118             April 27, 2007
DORIS CHIONGBIAN-OLIVA, Petitioner,
vs.
REPUBLIC OF THE PHILIPPINES, THE
DEPARTMENT OF ENVIRONMENT AND NATURAL
RESOURCES AND THE REGISTER OF DEEDS OF
CEBU CITY, Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari assails (1) the Decision1 dated
August 7, 2003 of the Court of Appeals in CA-G.R. CV. No.
74409, reversing the Decision2 dated December 13, 2001 of
the Regional Trial Court of Cebu City, Branch 12 in SP. Proc.
No. 10746-CEB, and (2) the Resolution3 dated March 17,
2004, denying the motion for reconsideration.
The following facts are undisputed.
Petitioner Doris Chiongbian-Oliva is the registered owner of a
parcel of land in Talamban, Cebu City, as evidenced by
Transfer Certificate of Title (TCT) No. 5455.4 This title
originated from Original Certificate of Title (OCT) No. 1066
from a free patent granted on September 11, 1969 under
Commonwealth Act No. 141,5 as amended. The free patent,
OCT No. 1066, and TCT No. 5455 contained the condition
that a forty-meter legal easement from the bank of any river or
stream shall be preserved as permanent timberland.6
On October 1, 2001, petitioner filed a petition for reduction of
legal easement docketed as SP. Proc. No. 10746-CEB before
the Regional Trial Court of Cebu City, Branch 12. Petitioner
alleged that the property is residential as shown by the tax
declaration7 and the Certification8 of the Office of the City
Assessor. Thus, the applicable legal easement is only three
meters pursuant to Department of Environment and Natural
Resources (DENR) Administrative Order No. 99-21,9 and not
forty meters, which applies to timberlands and forest lands.
Petitioner also alleged that enforcing the forty-meter legal
easement would virtually deprive her of the use and enjoyment
of the property since it consists only of 1,000 square meters.
The DENR countered that the property is inalienable. It also
claimed that the applicant agreed on the forty-meter legal
easement when the free patent was applied for.
The trial court ruled in favor of petitioner. It said that there is
no longer any reason for the forty-meter legal easement
because the property had been transformed into residential
land and the area where it is located has been reclassified as
urban. Applying DENR A.O. No. 99-21, the applicable legal
easement is only three meters. The decision’s decretal portion
states:
WHEREFORE, premises considered, it is hereby ordered that
the legal encumbrance of forty (40) meters for river bank
protection annotated on Petitioner’s Transfer Certificate of
Title No. 5455 be reduced to the applicable legal easement of
three (3) meters in accordance with law.
Accordingly, the Register of Deeds of Cebu City is hereby
directed to cancel the above legal encumbrance of forty (40)
meters annotated on Petitioner’s Transfer Certificate of Title
No. 5455 and in lieu thereof, annotate the applicable legal
encumbrance of three (3) meters for river bank protection.
SO ORDERED.10
On appeal, the Court of Appeals reversed the trial court’s
decision. It upheld the DENR’s claim that the property was
inalienable. Accordingly, a positive act of the government was
necessary to declassify it from forest land to alienable land.
Declaration of the property as residential in the tax declaration
and reclassification of the area where it is located as urban
were insufficient bases to reclassify the property. The fallo of
the appellate court’s decision reads:
WHEREFORE, premises considered, the Decision dated
December 13, 2001, of the Regional Trial Court, 7th Judicial
Region, Branch 12, Cebu City, in SP. PROC. NO. 10746-
CEB, is hereby REVERSED and SET ASIDE. No
pronouncement as to costs.
SO ORDERED.11
The appellate court later denied petitioner’s motion for
reconsideration.
Petitioner now raises the following issues:
I.
WHETHER OR NOT PETITIONER’S LOT COVERED BY
THE LEGAL ENCUMBRANCE IS A PUBLIC
LAND/LAND OF THE PUBLIC DOMAIN (AND THUS,
CANNOT BE RECLASSIFIED EXCEPT BY THE
EXECUTIVE DEPARTMENT) OF THE GOVERNMENT,
OR A PRIVATE LAND.
II.
WHETHER OR NOT THE TRIAL COURT IS CORRECT IN
TAKING JUDICIAL NOTICE OF THE FACT THAT
PETITIONER’S LOT COVERED BY TCT NO. 5455 IS
SITUATED IN AN URBAN AREA AND NOT IN A
FOREST AREA, AND IN THUS CONCLUDING THAT
THE LEGAL EASEMENT APPLICABLE FOR RIVER
BANK PROTECTION IS THREE (3) METERS AND NOT
FORTY (40) METERS.
III.
WHETHER OR NOT SECTION 90(i) OF C.A. NO. 141
WHICH PROVIDES FOR A UNIFORM EASEMENT OF
FORTY (40) METERS FROM THE BANK ON EACH SIDE
OF ANY RIVER, AND WHICH PRESERVES THE SAID
40-METER PORTION AS PERMANENT TIMBERLAND
REGARDLESS OF WHETHER IT IS SITUATED IN A
FOREST AREA OR AN URBAN AREA, IS STILL
APPLICABLE TO LOTS SITUATED IN AN URBAN
AREA IN THE LIGHT OF THE PROVISIONS OF
SUBSEQUENT LEGISLATION, SPECIFICALLY
SECTION 51 OF P.D. NO. 1067.12
Simply stated, the issues are: (1) Is the property public or
private land? and (2) Is the applicable legal easement forty or
three meters?
On the first issue, C.A. No. 141, as amended, provides that
lands of the public domain may be classified by the President,
upon the recommendation of the Secretary of Environment
and Natural Resources, into: (1) alienable or disposable; (2)
timber; and (3) mineral lands.13 However, only alienable or
disposable lands may be disposed of through any of the forms
of concession enumerated in the law.14 A free patent is one of
such concessions15 and once it is registered and the
corresponding certificate of title issued, the land covered by
them ceases to be part of the public domain and becomes
private property.16
Verily, by the issuance of a free patent on September 11,
1969, and the subsequent issuance of OCT No. 1066 and TCT
No. 5455, the property in this case had become private land. It
is inconsistent for an alienable land of the public domain to be
covered by a free patent and at the same time retain its
character as public land.
On the second issue, Section 90(i) of C.A. No. 141 requires
that a forty-meter legal easement from the bank of any river or
stream shall be preserved as permanent timberland. More
specifically, it provides:
(i) That the applicant agrees that a strip forty meters wide
starting from the bank on each side of any river or stream that
may be found on the land applied for, shall be demarcated and
preserved as permanent timberland to be planted exclusively
to trees of known economic value, and that he shall not make
any clearing thereon or utilize the same for ordinary farming
purposes even after patent shall have been issued to him or a
contract of lease shall have been executed in his favor.
(Emphasis supplied.)
To implement this, the DENR promulgated A.O. No. 99-21
which provides the guidelines in the processing, verification,
and approval of isolated and cadastral surveys. Pertinent to
this case are the following provisions:
2.1 Original Surveys:
2.1.a Public Lands:
All alienable and disposable (A and D) lands of the public
domain shall be surveyed pursuant to Section 1 Par. (1) of
R.A. 1273 [C.A. No. 141, Section 90(i)] whereby a strip of
forty (40) meters wide starting from the banks on each side of
any river or stream that may be found on the land shall be
demarcated and preserved as permanent timberland.
Likewise, to be demarcated are public lands along the banks of
rivers and streams and the shores of the seas and lakes
throughout their entire length and within a zone of three (3)
meters in urban areas, twenty (20) meters in agricultural areas
and forty (40) meters in forest area, along their margins which
are subject to the easement for public use in the interest of
recreation, navigation, floatage, fishing and salvage.
xxxx
2.3 Survey of Titled Lands:
2.3.1 Administratively Titled Lands:
The provisions of item 2.1.a and 2.1.b shall be observed as the
above. However, when these lands are to be subdivided,
consolidated or consolidated-subdivided, the strip of three (3)
meters which falls within urban areas shall be demarcated and
marked on the plan for easement and bank protection.
The purpose of these strips of land shall be noted in the
technical description and annotated in the title.
xxxx
Running in parallel vein is the Water Code of the
Philippines17 which provides:
Art. 51. The banks of rivers and streams and the shores of the
seas and lakes throughout their entire length and within a zone
of three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along
their margins, are subject to the easement of public use in the
interest of recreation, navigation, floatage, fishing and salvage.
No person shall be allowed to stay in this zone longer than
what is necessary for recreation, navigation, floatage, fishing
or salvage or to build structures of any kind.
Since the property in this case was originally alienable land of
the public domain, the application for free patent contained the
condition that a forty-meter legal easement from the banks on
each side of any river or stream found on the land shall be
demarcated and preserved as permanent timberland. However,
after the property was administratively titled, it underwent
several surveys for purposes of subdivision, consolidation, or
consolidation-subdivision as evidenced by TCT No. 5455.
This title provides that it is a transfer from TCT Nos. 3975 and
436018 and describes the property as Lot 2 of the
consolidation-subdivision plan Pcs-07-002121, being a portion
of Lot 6 and 7 Pcs-07-000974.19 Thus, presently only three
meters is required to be demarcated and preserved as
permanent timberland.
In this case, the trial court properly took judicial notice that
Talamban, Cebu City is an urban area. Judicial notice is the
cognizance of certain facts which judges may properly take
and act on without proof because they already know them.20 A
municipal jurisdiction, whether designated as chartered city or
provincial capital, is considered as urban in its entirety if it has
a population density of at least 1,000 persons per square
kilometer.21 The City of Cebu was created on October 20,
1934 under Commonwealth Act No. 58.22 It is a highly
urbanized city classified as entirely urban.23 Thus, all its
barangays, including Talamban, are considered urban.
Conformably with the foregoing considerations, the reduction
of the legal easement of forty meters on petitioner’s property
covered by TCT No. 5455 to three meters now is in order.

WHEREFORE, the instant petition is GRANTED. The G.R. No. 198594

assailed Decision dated August 7, 2003 and Resolution dated HELEN CALIMOSO, MARILYN P. CALIMOSO and
March 17, 2004 of the Court of Appeals in CA-G.R. CV. No. LIBY P. CALIMOSO, Petitioners,
74409 are REVERSED, and the Decision dated December 13, vs.
2001 of the Regional Trial Court of Cebu City, Branch 12 in AXEL D. ROULLO, Respondent.
SP. Proc. No. 10746-CEB is REINSTATED.
DECISION
SO ORDERED.
BRION, J.:

Before us is a petition for review on certiorari1 assailing the

December 15, 2010 decision2 and the August 23, 2011
resolution3 of the Court of Appeals (CA), Cebu City, in CA-
G.R. CEB CV No. 00834. The CA affirmed the decision of
the Regional Trial Court (RTC), Branch 29, Iloilo City,
in Civil Case No. CEB-23858 that ordered the establishment
of an "easement of right of way" in favor of respondent Axel
D. Roullo.

Facts of the Case

In his Complaint4 for Easement of Right of Way, the

respondent mainly alleged: that he is the owner of Lot 1462-
C-15 situated in Brgy. Sambag, Jaro, Iloilo City; that his lot is
isolated by several surrounding estates, including Lot 1454-B-
256 owned by petitioners Helen, Marilyn, and Liby, all
surnamed Calimoso; that he needs a right-of-way in order to
have access to a public road; and that the shortest and most
convenient access to the nearest public road, i.e., Fajardo
Subdivision Road, passes through the petitioners’ lot.

The petitioners objected to the establishment of the easement

because it would cause substantial damage to the two (2)
houses already standing on their property. They alleged that
the respondent has other right-of-way alternatives, such as the
existing wooden bridge over Sipac Creek bounding the
respondent’s lot on the northeast; that the bridge, if made
concrete, could provide ingress or egress to the Fajardo
Subdivision Road.

Due to the respondent’s allegedly malicious and groundless

suit, the petitioners claimed entitlement to the following
awards: P100,000.00 as moral damages, P30,000.00 as
exemplary damages, P50,000.00 as attorney’s fees, P1,000.00
as appearance fee, and P15,000.00 as litigation expenses.

In a decision dated September 29, 2003, the RTC granted the

respondent’s complaint and ordered the petitioners to provide
the respondent an easement of right-of-way "measuring 14
meters in length and 3 meters in width (42 square meters,
more or less) over Lot 1454-B-25, specifically at the portion
adjoining the bank of Sipac Creek." Accordingly, the RTC
ordered the respondent to pay the petitioners proper indemnity
in the amount of "Php1,500.00 per square meter of the portion
of the lot subject of the easement." The petitioners appealed
the RTC’s decision to the CA.
The CA, in its assailed December 15, 2010 decision,
affirmed in toto the RTC’s decision and held that all the
requisites for the establishment of a legal or compulsory
easement of right-of-way were present in the respondent’s
case: first, that the subject lot is indeed surrounded by estates
owned by different individuals and the respondent has no
access to any existing public road; second, that the respondent
has offered to compensate the petitioners for the establishment
of the right-of-way through the latter’s property; third, that
the isolation of the subject lot was not caused by the
respondent as he purchased the lot without any adequate
ingress or egress to a public highway; and, fourth and
last, given the available options for the right-of-way, the
route that passes through the petitioners’ lot requires the
shortest distance to a public road and can be established at
a point least prejudicial to the petitioners’ property.
The petitioners moved to reconsider the CA’s decision arguing
that, while the establishment of the easement through their lot
provided for the shortest route, the adjudged right-of-way
would cause severe damage not only to the nipa hut situated at
the corner of the petitioners’ lot, but also to the bedroom
portion of the other concrete house that stood on the property.
The CA, however, did not consider the petitioners’ arguments
on the ground that the matters alleged were not raised or
proven before the trial court, thus, it denied the petitioners’
motion for reconsideration.
The petitioners filed the present petition for review
on certiorari raising the issues of: (a) whether the respondent
has met all the requisites for the establishment of a legal
easement of right-of-way on Lot 1454-B-25 owned by the
petitioners, (b) whether the establishment of the right-of-way
on the petitioners’ lot is at the point least prejudicial to the
servient estate, and (c) whether a right-of-way can be
established through other lots surrounding the respondent’s
property other than through the petitioners’ property.
OUR RULING
We disagree with the CA finding that all the requisites for
the valid establishment of an easement of right-of-way are
present in this case.
To be entitled to an easement of right-of-way, the following
requisites should be met:
"1. The dominant estate is surrounded by other immovables
and has no adequate outlet to a public highway;
2. There is payment of proper indemnity;
3. The isolation is not due to the acts of the proprietor of the
dominant estate; and
4. The right-of-way claimed is at the point least prejudicial to
the servient estate; and insofar as consistent with this rule,
where the distance from the dominant estate to a public
highway may be the shortest."7
The immovable in whose favor the easement is established is
called the dominant estate, and the property subject to the
easement is called the servient estate.8 Here, the respondent’s
lot is the dominant estate and the petitioners’ lot is the servient
estate.
That the respondent’s lot is surrounded by several estates and
has no access to a public road are undisputed.1âwphi1 The
only question before this Court is whether the right-of- way
passing through the petitioners’ lot satisfies the fourth
requirement of being established at the point least
prejudicial to the servient estate.
Three options were then available to the respondent for the
demanded right-of-way: the first option is to traverse directly
through the petitioners’ property, which route has an
approximate distance of fourteen (14) meters from the
respondent’s lot to the Fajardo Subdivision Road; the second
option is to pass through two vacant lots (Lots 1461-B-1 and
1461-B-2) located on the southwest of the respondent’s lot,
which route has an approximate distance of forty-three (43)
meters to another public highway, the Diversion Road; and
the third option is to construct a concrete bridge
over Sipac Creek and ask for a right-of-way on the property of
a certain Mr. Basa in order to reach the Fajardo Subdivision
Road.
Among the right-of-way alternatives, the CA adopted the first
option, i.e., passing through the petitioner’s lot, because it
offered the shortest distance (from the respondent’s lot) to the
Fajardo Subdivision Road and the right-of-way would only
affect the "nipa hut" standing on the petitioners’ property. The
CA held that the establishment of the easement through the
petitioners’ lot was more practical, economical, and less
burdensome to the parties.
Article 650 of the Civil Code provides that the easement of
right-of-way shall be established at the point least prejudicial
to the servient estate, and, insofar as consistent with this rule,
where the distance from the dominant estate to a public
highway may be the shortest. Under this guideline, whenever
there are several tenements surrounding the dominant estate,
the right-of-way must be established on the tenement where
the distance to the public road or highway is
shortest and where the least damage would be caused. If these
two criteria (shortest distance and least damage) do not concur
in a single tenement, we have held in the past that the least
prejudice criterion must prevail over the shortest distance
criterion.9
In this case, the establishment of a right-of-way through the
petitioners’ lot would cause the destruction of the wire fence
and a house on the petitioners’ property.10 Although this right-
of-way has the shortest distance to a public road, it is not the
least prejudicial considering the destruction pointed out, and
that an option to traverse two vacant lots without causing any
damage, albeit longer, is available.
We have held that "mere convenience for the dominant estate
is not what is required by law as the basis of setting up a
compulsory easement;"11 that "a longer way may be adopted to
avoid injury to the servient estate, such as when there are
constructions or walls which can be avoided by a round-about
way."12
WHEREFORE, we hereby GRANT the present petition for
review on certiorari and REVERSE and SET ASIDE the
decision dated December 15, 2010, and resolution dated
August 23, 2011, of the Court of Appeals in CA-G.R. CEB
CV No. 00834. The complaint for the easement of right- of-
way is DISMISSED without prejudice to another complaint
that the respondent may file against the proper party or parties
based on the terms of this Decision.
Costs against respondent Axel D. Roullo.
SO ORDERED.
G.R. No. 163157
SPOUSES BERNABE MERCADER, JR. and LORNA
JURADO-MERCADER, OLIVER MERCADER,
GERALDINE MERCADER and ESRAMAY
MERCADER, Petitioners,
vs.
SPOUSES JESUS BARDILAS and LETECIA GABUYA
BARDILAS, Respondents.
DECISION
BERSAMIN, J.:
The owner of the servient estate retains ownership of the
portion on which the easement is established, and may use the
same in such manner as not to affect the exercise of the
easement.1
The Case
This appeal seeks to undo and reverse the decision
promulgated on March 18, 2003 "only insofar as Civil Case
No. CEB-12783 is concerned," whereby the Court of Appeals
(CA) partly affirmed the judgment rendered on October 10,
1995 by the Regional Trial Court (RTC) in Civil Case No.
CEB-12783 and Civil Case No. CEB-13384. In so doing, the
CA recognized the right of the respondents as the owners of
the servient estate to the road right of way.
Antecedents
The issue concerns the right of way between the owners of
three parcels of land denominated as Lot No. 5808-F-l, Lot
No. 5808-F-2-A and Lot 5808-F-2-B. The lots were portions
of Lot No. 5808-F, situated in Barangay Punta Princesa in
Cebu City with an area of 2,530 square meters, and registered
under Transfer Certificate of Title No. 78424 of the Registry
of Deeds in Cebu City in the name of "Arsenia Fernandez, of
legal age, married to Simeon Cortes, both Filipinos."2 Another
subdivision lot derived from Lot No. 5808-F was Lot No.
5808-F-3
Lot No. 5808-F-l, which fronted a side street within the Clarita
Village, contained 289 square meters, and was registered
under TCT No. 88156 in the names "OLIVER, 14 yrs. old,
GERALDINE, 12 yrs. old, ESRAMA Y, 10 yrs. old, all
surnamed MERCADER, Filipino, minors, and single."3 Such
registered owners were the children of petitioner Bernabe
Mercader, Jr. by his first wife, Rebecca Gabuya Mercader,
who had died in 1975.
Lot No. 5808-F-2-A, situated behind Lot No. 5808-F-l, had an
area of 89 square meters. It was covered by TCT No. 107914
in the names of "spouses BERNABE MERCADER AND
LORNA JURADO, of legal age, Filipinos," 4 and was
particularly described as follows:
A parcel of land (Lot 5808-F-2-A, Psd-07-018600, being a
portion of Lot 5808-F-2, Psd-07-01-004579). Situated in the
Barrio of Punta Princesa, City of Cebu, Province of Cebu,
Island of Cebu. Bounded on the North and East along lines 1-
2-3 by Lot 5808-F-2-B, with existing Right of Way (3.00
meters wide); of the subdivision plan; on the South along line
3-4 by Lot 5726, Cebu Cadastre; and on the West, along line
4-1 by Lot 5808-F-1, Psd-07-01-004579. Beginning at a point
marked "1" on plan being S. 50 deg. 59'W., 411.55 m. from
BM No. 44, Cebu Cadastre; thence N. 60 deg. 34' E., 4.99 m.
to point 2; thence S. 20 deg. 33' E., 17.95 m. to point 3; thence
S. 60 deg. 34' W., 4.99 m. to point 4; thence N. 20 deg. 33' W.,
17.94 m. to point of beginning; containing an area of EIGHTY
NINE (89) SQUARE METERS, more or less. x x x (Emphasis
Supplied)
Lot No. 5808-F-2-B, situated behind Lot No. 5808-F-2-A,
contained 249 square meters, and was covered by TCT No.
107915 in the names of "spouses LETECIA GABUY A
BARDILAS and JESUS BARDILAS, of legal age,
Filipinos."5 It was particularly described as follows:
A parcel of land (Lot 5808-F-2-B, Psd-07-018600, being a
portion of Lot 5808-F-2, Psd-07-01-004579). Situated in the
Barrio of Punta Princesa, City of Cebu, Province of Cebu,
Island of Cebu. Bounded on the SW., along line 1-2 by Lot
5808-F-1, Psd-07-01-004579; on the West along line 2-3 by
Lot 5726, Cebu Cad.; on the North along line 3-4-5 by Lot
5725, Cebu Cadastre; on the East, along line 5-6 by Lot 5808-
F-3, Psd-07-01-004579; on the South along line 6-7 by Lot
5726, Cebu Cad. and on the West, along line 7-8-1 by Lot
5808-F-2-A of the subdivision plan; with a Road Right of
Way (3.00 meters wide). Beginning at a point marked "1 "on
plan being S. 50 deg., 59'W., 411.55 m. from BM No. 44,
Cebu Cadastre; thence S. 64 deg .. 87'W., 16.02 m. to point 2;
thence N. 22 deg. 23'W., 3.01 m. to point 3; thence N. 64 deg.
10'E., 16.12 m. to point 4; thence N. 64 deg. 10'E., 14.00 m. to
point 5; thence S. 21 deg. 20'E., 20.01 m. to point 6; thence S.
60 deg. 34' W., 9.40 m. to point 7; thence N. 20 deg. 33'W.,
17.95 m. to point 8; thence S. 60 deg. 34'W., 4.99 m. to the
point of the beginning. Containing an area of TWO
HUNDRED FORTY NINE (249) SQUARE METERS, more
or less. x x x (Emphasis supplied)
The right of way mentioned in the TCT No. 107915 of the
Spouses Bardilas (Lot No. 5808-F-2-B) exited into the Clarita
Subdivision and was roughly 300 lineal meters from Buhisan
Road, a national road.
Behind Lot No. 5808-F-2-B was Lot No. 5808-F-3, registered
under TCT No. 88158 in the name of"LETECIA GABUYA
BARDILAS, married to JESUS BARDILAS, both of legal age
and Filipinos,"6 particularly described as follows:
A parcel of land (Lot 5808-F-3, Psd-07-07-004579, bearing a
portion of 5808-F, psd-07-07-003019); situated in the District
of Punta Princesa, Ciky (sic) of Cebu, Island of Cebu.
Bounded on the Ne. and NW. along lines 1-2-3- by lot 5808-
F-4; on the NW., along line 3-4 by lot 5808-F-5; along line 4-
5 by lot 5808-F-6, all of the subdivision plan; on the NW.,
along line 5-6 by Lot 5725, Cebu Cadatre; on the East and
SE., along lines 7-8-9 by lot 5808-B; on the SE., along line 9-
1 by lot 5808-C; along 10-11-12 bylot (sic) 5808-D; along line
12-13-14 by Lot 5808-E., all psd-0701003019; on the SE.,
along line 14-45 by lot 5726, Cebu Cadastre; on the SW.,
along line 15-16 by Lot 5808-F-2 of the subdivision plan; and
on the NW, along line 16-1 by lot 5725, Cebu Cadastre. x x x
In relation to Lot No. 5808-F-3, there is another right of way
about 40 lineal meters away from Buhisan Road.7
On May 11, 1992, the Clarita Village Association erected a
concrete perimeter fence to close the exit point of the right of
way of the Spouses Bardilas from Lot No. 5808-F-2-B to the
existing road within Clarita Village. The closure forced the
Spouses Bardilas to use the second exit to Buhisan Road,
which is from their Lot No. 5808-F-3.
At the instance of the Clarita Village Association, and the
Spouses Bardilas, Engr. Edgar T. Batiquin of the Office of the
Building Official of Cebu City, conducted his
verification/investigation of the vicinity of the disputed right
of way. Engr. Batiquin later on reported to the Building
Official the following findings in his letter dated June 15,
1992,8 to wit:
Per verification/investigation conducted in connection with the
above subject the findings are to wit:
1. That the fence constructed by the association should have
the
necessary permit;
2. Said fence encroached a small portion of the road right-of-
way of Ms. Bardilas (please see attached sketch plan, color
red);
3. That a fence and portion of the redidential house owned by
Mr. Bernabe Mercader have also encroached the road right-of-
way (please see attached sketch plan, color green);
4. Total area encroached on the right-of-way is 14.00 square
meters.
Subsequently, on July 1, 1992, Barangay Chairman Jose F.
Navarro of Punta Princesa, Cebu City convened a meeting
among the interested parties at the Chinese Temple inside the
Clarita Village. In attendance were officers of the Clarita
Village Association, including petitioner Bernabe Mercader,
Jr., and barangay officials. The Clarita Village Association
explained that its closure of the right of way had been for the
purpose of preventing individuals of "questionable character"
from using the right of way to enter the area to steal from the
residents of the Clarita Village. The meeting resulted in the
discussion and agreement of the following matters, to wit:9
1) The villagers/Clarita Village Association WILL HAVE NO
OBJECTION for the spouses: Jesus and Letecia Bardilas (on
their own expense) (sic) demolish a portion of the wall fence
erected on a portion of Clarita Village side street blocking the
said spouses' right of way; - and replace with IRON GATE so
that they can use it anytime. Buying cost of the iron gate - as
well as labor cost in replacing the knocked out portion of the
said wall fence with iron gate will be shouldered by spouses:
Jesus and Letecia Bardilas.
2) KEYS TO THE IRON GATE. - One (1) key will be given
to the spouses MR. & MRS. BERNABE MERCADER so that
at anytime they can open the gate in going thru their residence.
ONE (1) key will be kept by spouses: Jesus and Letecia
Bardilas for their usage in opening the iron gate anytime they
may open it.
3) All parties present were in accord that the contents of items
1 to 3 STAND as their agreement in solving this instant case,
and also in accord to implement the agreement as soon as
possible. THEY ALSO AGREE THAT IN VIEW OF THIS
AGREEMENT, - THEY ALL CONSIDER THIS CASE
AMICABLY SETTLED.
By letter dated August 14, 1992, 10 the Spouses Bardilas,
through Atty.
Alfredo J. Sipalay, informed the Spouses Mercader of the
encroachment by about 14 square meters of the latter's
residential house and fence on the right of way. Hence, they
wrote that they were giving the latter two alternatives, namely:
1. Pay THIRTY THOUSAND PESOS (₱30,000.00) for the 14
square meters which your house and wall fence have
encroached (the amount represents ₱2,000.00 per square
meter, which is the fair market value of the property plus
P2,000.00 for the expenses the Spouses Bardilas have incurred
as a result of the encroachment of your property); or
2. Demolish the wall fence and the portion of your house
which encroached my clients' property.
On August 19, 1992, the Spouses Mercader, through Atty.
Rolindo A. Navarro, responded by insisting that as the owners
of Lot No. 5808-F-2-A they were equally entitled to the right
of way; and that they were proposing to buy the equivalent
portion of the right of way to which they were entitled at a
reasonable price, viz.:  11
Dear Compañero:
Your letter dated August 14, 1992 addressed to Mr. Bernabe
Mercader has been referred to me for appropriate response.
In this connection, please be informed that my said client is
equally entitled to the use of the road-right-of-way subject of
your letter having bought Lot No. 5808-F-2-A which is one of
the two dominant estates entitled thereto. The other estate is
Lot No. 5808-F-2-B owned by your clients. Incidentally, this
road-right-of-way has not been used for its purpose as the exit
to Clarita Village has been closed. Attached herewith is copy
of TCT No. 107914 for Lot No. 5808-F-2-A as Annex "A".
However, if your client is willing, my client proposes to buy
the equivalent portion of the road-right-of-way to which they
are entitled to at a reasonable price.
Please feel free to communicate with me on this matter.
In their reply of August 24, 1992, 12 the Spouses Bardilas
rejected the claim of the Spouses Mercader that they were
entitled to the use of the right of way, and reiterated their
demand for ₱30,000.00 as the fair market value of the
property, stating:
Dear Atty. Navarro:
This is in reply to your letter dated August 19, 1992 which our
office received on August 20, 1992.
My clients, Spouses Jesus and Letecia Bardilas, disagree with
Mr. Bernabe Mercader's claim that he is entitled to the use of
their road right of way. Attached as Annex "A" is a photocopy
of my clients' TCT No. 107915 of the property in question
which clearly states that my clients' property is subject to three
(3) meters wide right of way. Mr. Mercader's TCT No 107914,
which was issued on the same day and time as my clients'
TCT on March 30, 1989 at 10:10 a.m., don't (sic) have the
same provision regarding the use of a right of way. This is
because Mr. Mercader's property is fronting the street while
my clients' property is situated at the back of Mr. Mercader's
property; hence, the provision regarding the right of way on
my clients' TCT.
It is true that my clients' road right of way has been closed
since June, 1992 due to a wall constructed by the Clarita
Village Association resulting in much inconvenience to my
clients since they have to pass through a circuitous and muddy
road. However, in a meeting with their Barangay Captain, the
officers of the Clarita Village Association already agreed to let
my clients pass through the wall provided they will put up a
gate between the walls. My clients already have a three (3)
meter wide gate ready to be put up only to discover that it
won't fit because Mr. Mercader has encroached their road right
of way. Hence, my letter to Mr. Mercader on August 14, 1992,
informing him to pay ₱30,000.00 to my clients or to
demolished (sic) his wall fence and portions of his house
which encroached my clients' road right of way.
Since Mr. Mercader opts to pay my clients, we reiterate our
demand for ₱30,000.00 which is the fair market value of my
clients' property.
We hope we could settle this matter within this week.
Civil Case No. CEB-12783
Finding the demand for payment of ₱30,000.00 by the
Spouses Bardilas to be unlawful, unwarranted and unfounded,
the Spouses Mercader commenced on September 8, 1992 their
action for declaratory relief, injunction and damages against
the Spouses Bardilas in the RTC in Cebu City (Civil Case No.
CEB-12783). The case was assigned to Branch 20.
The Spouses Mercader alleged that they were the lawful and
registered owners of adjoining lots, to wit: Lot No. 5808-F-1
and Lot No. 5808-F-2-A where their residential house stood;
13 and that their Lot No. 5808-F-2-A and the Spouses
Bardilas' Lot No. 5805-F-2-B were portions of Lot No. 5808-
F-2 that had been subdivided and sold separately to each of
them; 14 that Lot No. 5808-F-2-A was bounded on the North
and the East by Lot No. 5808-F-2-B; that in 1989, they had
used a negligible portion 8f the easement to build their fence
and a portion of their residential house, without impairing the
use for which it was established and without any objection,
protest or complaint from the respondents; that they retained
the ownership of the portion of the property on which the
easement was established pursuant to Article 630 of the Civil
Code; that the non-user of the easement had extinguished it
pursuant to Article 631, paragraph 3, of the Civil Code; that
the rights of the dominant and servient estates had merged in
them; and that there was a need to declare their rights to that
portion of their property on which the easement of right of
way had been established vis-a-vis the unlawful demands of
the Spouses Bardilas.
The Spouses Mercader prayed that they be declared as having
retained the ownership of the 63.33 square meters where the
easement of right of way had been established; that the merger
of the rights of the servient estate owner and dominant estate
owner be declared their favor; 15 and that the Spouses Bardilas
be made to pay damages.
In their answer, 16 the Spouses Bardilas averred that Lot No.
5808-F-2-A and Lot No. 5808-F-2-B used to be parts of Lot
No. 5808-F-2; that the right of way in question was a part of
Lot No. 5808-F-2-B that they owned as borne out by the
technical descriptions of Lot No. 5808-F-2-A17 and Lot No.
5808-F-2-B 18 as well as the subdivision plan of the
properties; 19 that they learned of the encroachment on the
portion of their property being used as right of way only from
the survey conducted by Engr. Batiquin of the Office of the
Building Official in June 1992;20 and that they then referred
the matter to their lawyer for appropriate action.
The Spouses Bardilas stated as affirmative defense that
although the property of the Spouses Mercaders had a gate
fronting the side street within the Clarita Village, they had
allowed the latter to use the right of way only because Bernabe
Mercader, Jr. was the husband of the elder sister of Letecia
Gabuya Bardilas; that the Spouses Mercader abused the favor
by using the right of way as their garage; that they requested
the Spouses Mercader to move their vehicles out but they got
angry and instigated the closure of the right of way by the
Clarita Village Association, where he was a ranking officer at
the start of the dispute; that the Spouses Mercader were
wrongly claiming the extinguishment of the right of way; and
that the Spouses Mercader had no cause of action against
them, and should be held liable for damages in their favor.
During the pre-trial on September 29, 1993, the trial court
required the Spouses Mercader to amend their petition to
include the children of Bernabe Mercader, Jr. by his first wife,
Rebecca Gabuya Mercader, due to their being the registered
owners of Lot No. 5808-F-1. The amended petition, dated
October 25, 1993, was filed on November 4, 1993.21
Civil Case No. CEB-13384
In view of the encroachment by the Spouses Mercader on a
portion of the road right of way, the Spouses Bardilas could
not fit their 3-meter wide iron gate. Another meeting with the
officers of the Clarita Village Association was held on
November 11, 1992.22 When the efforts of the parties to
amicably settle the issue failed, the Spouses Bardilas brought
on December 24, 1992 their own suit for specific performance
with preliminary prohibitory or mandatory injunction against
the Clarita Village Association and the Spouses Mercader
(Civil Case No. CEB-13384) in the RTC in Cebu City. The
case was raffled to Branch 10 of the RTC.
On October 5, 1993, the Spouses Bardilas moved for the
consolidation of Civil Case No. CEB-13384 with Civil Case
No. CEB-12783. The RTC (Branch 10) granted the motion for
consolidation.23
Judgment of the RTC
On October 10, 1995, the RTC rendered its consolidated
decision in Civil Case No. CEB 12783 and Civil Case No.
CEB-13384, disposing:24
WHEREFORE, in view of all the foregoing premises,
judgment is hereby rendered in favor of petitioner Mercader's
(sic) as against spouses Bardilas in Civil Case No. 12783:
(a) DECLARING the EXTINGUISHMENT of the easement
of road right of way passing through the real properties of
petitioners spouses Mercader's (sic) and Bernabe Mercader, Jr.
and his children and the cancellation of the annotation of said
easement from TCT No. 107914 and TCT No. 88156;
(b) DECLARING petitioner Mercader's (sic) as owners of
said extinguished easement of right of way;
(c) GRANTING to petitioner Mercader's (sic) the right to use
and occupy the extinguised easement which adjoins the
Mercader's properties;
(d) ORDERING respondents spouses, Jesus and Letecia
Bardilas to pay petitioners the following amounts:
a) The sum of ₱100,000.00 as moral damages;
b) The sum of ₱35,000.00 as attorney's fees; and
c) The sum of ₱20,000.00 as costs of suit;
and in Civil Case No.13384:
(a) DISMISSING the amended complaint filed by plaintiffs
spouses Bardilas;
(b) DECLARING the road network of the Clarita Village still
as private properties and not public;
(c) DECLARING that the closure of OUTLET NO. 1 of said
easement of right of way by the Clartita Village as lawful and
valid;
SO ORDERED.
On October 19, 1995, the Spouses Bardilas moved for a new
trial on the ground of newly discovered
evidence,25 representing that they had obtained the
certification dated August 24, 1995 by Antonio V. Osmeña,
the developer of the Clarita Village and the attorney-in-fact of
Carmen and Elena Siguenza, the owners of the Clarita
Village,26 to the effect that the road network of the Clarita
Village had been donated to Cebu City. "hey appended to the
motion the Deed of Donation of Road Lots27and the
certification dated July 5, 1995 28 by Antonio B. Sanchez,
Department Head III of the Office of the City Engineer,
Department of Engineering and Public Works of Cebu City,
stating that the road network within the Clarita Village "has
been used as part of the road network of the City of Cebu and
as such was asphalted by the city thru F.T. Sanchez
Construction in 1980." These documents, according to the
Spouses Bardilas, were newly discovered evidence that they
"could not, with reasonable diligence, have discovered and
produced at the trial."29
On November 13, 1995, 30 the RTC denied the motion for new
trial because: (a) the Deed of Donation of Road Lots had been
in the possession of the movants' counsel, and had been in fact
shown to the court, but had neither been offered nor marked as
evidence during the trial; (b) the certifications (Annexes A and
C of the motion for new trial) had derived their existence from
the Deed of Donation of Road Lots, and could not be
considered as newly discovered evidence; (c) the Deed of
Donation of Road Lots did not bear the signature of then
Acting City Mayor Eulogio Borres as the representative of the
donee; and (d) the Deed of Donation of Road Lots had not
been notarized. It noted that the failure to comply with the
legal requirements for donations under the Civil
Code rendered the donation void and invalid, and could not
alter the result of the litigation.
With the denial of their motion for new trial, the Spouses
Bardilas appealed to the CA.31
Decision of the CA
In their appeals, the Spouses Bardilas insisted that the RTC
committed reversible errors in declaring:32
I. That the Mercaders are the owners of the easement of right
of way in question.
II. That the easement of right of way in question has been
extinguished.
III. In granting the Mercaders the right to use and occupy the
extinguished easement which adjoins the Mercaders'
properties.
IV. In awarding moral damages, attorney's fees and costs of
suit to the Mercaders in Civil Case No. CEB-12783.
V. In dismissing Civil Case No. CEB-13384 and in declaring
the closure of the road right of way in question by Clarita
Village as lawful and valid.
On March 18, 2003, the CA promulgated the now assailed
decision,33 modifying the judgment of the RTC and disposing
as follows:
WHEREFORE, the instant appeal is PARTIALLY
GRANTED. The assailed decision of the Regional Trial Court
of Cebu City, Branch 20 in Civil Case Nos. CEB-12783 and
CEB-13384 is hereby MODIFIED to read as follows:
WHEREFORE, in view of all the foregoing premises,
judgment is hereby rendered in favor of respondents Spouses
Jesus and Letecia Bardilas as against the petitioners Spouses
Bernabe and Lorna Mercader, Oliver Mercader, Geraldine
Mercader and Esramay Mercader in Civil Case No. 12783:
1) DECLARING respondents Jesus and Letecia Bardilas as
owners of the three (3) square meter wide road in question;
2) GRANTING to respondents Jesus and Letecia Bardilas the
right to use and occupy the said three (3) square meter wide
road; and
3) ORDERING petitioners to pay the respondents the sum of
₱20,000.00 as and for attorney's fees;
4) ORDERING the petitioners to pay the costs of suit;
and in Civil Case No. 13384:
1) DISMISSING the amended complaint filed by plaintiffs
Spouses Jesus and Letecia Bardilas; and
2) DECLARING the road network of the Clarita Village still
as private properties and not public.
SO ORDERED.
On April 28, 2003, the Spouses Mercader sought the
reconsideration of the decision,34 stating that the CA had
"erred in awarding the 3 meter road right of way to the
[Spouses Bardilas] and in ordering the respondent Mercader
spouses, et al. to pay attorney's fees."35 They argued that
because Lot No. 5808-F-2-A and Lot No.5808-F-2-B used to
be one lot denominated as Lot No. 5808-F-2 that had the same
right of way leading to the Clarita Village, they "are also
legally entitled to the other half of the right of way" as owners
of one of the subdivided lots;36 that, as shown in their Exhibit
H,37 Lot No. 5808-F-3 of the Spouses Bardilas "has another 3
meter road right of way towards another point of Buhisan
Road which is only about 40 lineal meters"38 from their
property; and that the award of attorney's fees was "not proper
there being no legal basis to grant the award. "39
On March 16, 2004, 40 however, the CA denied Spouses
Mercader's motion for reconsideration.
Hence, this appeal only insofar as Civil Case No. CEB-12783
was concemed.41
Issues
The Spouses Mercaders raise the same issues aired in their
motion for reconsideration in the CA.1âwphi1 They contend
that the technical description of their property contained the
phrase "with existing Right of Way (3.00 meters wide),"
which signified that they were equally "entitled to the road-
right-of-way being conferred upon them by TITLE pursuant to
Article 622 of the New Civil Code." They submit that:
Hence,
they too should equally share in its retention for uses other
than the easement after its non-user brought about by the
closure of the exit point by Clarita Village Association. As
borne out by the evidence, the respective properties of
petitioners Sps. Bernabe and Lorna Mercader, on one hand,
and Sps. Jesus and Letecia Bardilas, on the other hand, used to
be a whole Lot 5808-F-2 with an area of 338 square meters
before the same was subdivided into Lot 5808-F-2-A with an
area of 89 square meters for the petitioner spouses and Lot
5808-F-2-B with an area of 249 square meters for the
respondents. Before the subdivision, there was already a 3-
meter wide road right of way leading towards Clarita Village.
Thus, after the subdivision, the subject easement was
annotated in both certificates of title as earlier stated. Very
clearly, petitioners Bernabe and Lorna Mercader, and
respondents Jesus and Letecia Bardilas, should equally share
in the area of the easement. Consequently, the petitioners
cannot be ordered to return the portion of easement on which
part of petitioners' house and fence stand. 42
Ruling of the Court
We cannot sustain the petitioners' claim that they acquired
their right to the road right of way by title.
Easement or servitude, according to Valdez v. Tabisula,43is "a
real right constituted on another's property, corporeal and
immovable, by virtue of which the owner of the same has to
abstain from doing or to allow somebody else to do something
on his property for the benefit of another thing or person." "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. "44
It is settled that road right of way is a discontinuous apparent
easement45 in the context of Article 622 of the Civil
Code, which provides that continuous non-apparent
easements, and discontinuous ones, whether apparent or not,
may be acquired only by virtue of title. But the phrase with
existing Right of Way in the TCT is not one of the modes of
acquisition of the easement by virtue of a title. Acquisition by
virtue of title, as used in Art. 622 of the Civil Code, refers to
"the juridical act which gives birth to the easement, such as
law, donation, contract, and will of the testator."46
A perusal of the technical description of Lot No. 5808-F-2-A
indicates that the phrase with existing Right of Way (3.00
meters wide) referred to or described Lot No. 5808-F-2-
B,47 which was one of the boundaries defining Lot F-2-A.
Moreover, under the Torrens system of land registration, the
certificate of title attests "to the fact that the person named in
the certificate is the owner of the property therein described,
subject to such liens and encumbrances as thereon noted or
what the law warrants or reserves. The objective is to obviate
possible conflicts of title by giving the public the right to rely
upon the face of the Torrens certificate and to dispense, as a
rule, with the necessity of inquiring further. The Torrens
system gives the registered owner complete peace of mind, in
order that he will be secured in his ownership as long as he has
not voluntarily disposed of any right over the covered
land."48 The Torrens certificate of title is merely an evidence
of ownership or title in the particular property described
therein.49
What really defines a piece of land is not the area mentioned
in its description, but the boundaries therein laid down, as
enclosing the land and indicating its limits.50 As shown in the
subdivision plan of Lot No. 5808-F-2,51 and based on the
technical description of Lot No. 5808-F-2-B as appearing in
TCT No. 107915,52 the right of way in dispute, which is
"(B)ounded on the SW., along line 1-2 by Lot 5808-F-J, Psd-
07-01-004579; on the West along line 2-3 by Lot 5726, Cebu
Cad.; on the North along line 3-4-5 by Lot 5725, Cebu
Cadastre" was part of Lot No. 5808-F-2-B of the Spouses
Bardilas.
It is noteworthy that an encumbrance "subject to 3 meters
wide right of way" was annotated on TCT No. 107915, which
covers Lot No. 5808-F-2-B of the Spouses Bardilas.53 As the
owners of the servient estate, the Spouses Bardilas retained
ownership of the road right of way even assuming that said
encumbrance was for the benefit of Lot No. 5808-F-2-A of the
Spouses Mercader. The latter could not claim to own even a
portion of the road right of way because Article 630 of
the Civil Code expressly provides that "[t]he owner of the
servient estate retains ownership of the portion on which the
easement is established, and may use the same in such manner
as not to affect the exercise of the easement."
With the right of way rightfully belonging to them as the
owners of the burdened property, the Spouses Bardilas
remained entitled to avail themselves of all the attributes of
ownership under the Civil Code, specifically: jus utendi, jus
fruendi, jus abutendi, jus disponendi and jus
vindicandi. Article 428 of the Civil Code recognizes that the
owner has the right to enjoy and dispose of a thing, without
other limitations than those established by law. 54 In that
regard, the CA cogently pointed out:55
Moreover, as owners of the three (3) square meter wide road
in dispute, the appellants (referring to the Bardilas spouses)
may rightfully compel the petitioners-appellees to pay to them
the value of the land upon which a portion of their
(petitioners-appellees) house encroaches, and in case the
petitioners-appellees fail to pay, the appellants may remove or
demolish the encroaching portion of the petitioners-appellees'
house. xxxx
The second issue concerns the award of attorney's fees.
Relying on Bernardo v. Court of Appeals, (Special Sixth
Division),56the petitioners argue that the CA erred "in
awarding attorney's fees to the appellants after eliminating or
refusing to award moral and exemplary damages;"57 that the
CA did not make any finding to the effect "that the appellants
were compelled to litigate with third persons or to incur
expenses to protect their interest;"58 and that, consequently, the
grant of attorneys' fees to the Spouses Bardillas lacked legal
basis.
The award of attorney's fees and expenses of litigation is
governed by Article 2208 of the Civil Code, to wit:
Art. 2208. In the absence of stipulation, attorney's fees and
expenses of litigation, other than judicial costs, cannot be
recovered, except:
(1) When exemplary damages is awarded;
(2) When the defendant's act or omission has compelled the
plaintiff to litigate with third persons or incur expenses to
protect his interest;
(3) In criminal cases of malicious prosecution against the
plaintiff;
(4) In case of a clearly unfounded civil case or proceeding
against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in
refusing to satisfy the plaintiffs plainly valid, just and
demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers,
laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation
and employer's liability laws;
(9) In a separate civil action to recover civil liability arising
from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and
equitable that attorney's fees and expenses of litigation should
be recovered.
In all cases, the attorney's fees and expenses of litigation must
be reasonable.
In Philippine National Construction Corporation v. APAC
Marketing Corporation,59 the Court opined that whenever
attorney's fees are granted, the basis for the grant must be
clearly expressed in the judgment of the court. It expounded
on why this is so:
In ABS-CBN Broadcasting Corp. v. CA, this Court had the
occasion to expound on the policy behind the grant of
attorney's fees as actual or compensatory damages:
(T)he law is clear the in the absence of stipulation, attorney's
fees may be recovered as actual or compensatory damages
under any of the circumstance provided for in Article 2208 of
the Civil Code.
The general rule is that attorney's fees cannot be recovered as
part of damages because of the policy that no premium should
be placed on the right to litigate. They are not to be awarded
every time a party wins a suit. The power of the court to award
attorney's fees under Article 2208 demands factual, legal, and
equitable justification. Even when a claimant is compelled to
litigate with third persons or to incur expenses to protect his
rights, still attorney's fees may not be awarded where no
sufficient showing of bad faith could be reflected in a party's
persistence in a case other than an erroneous conviction of the
righteousness of his cause.
In Benedicto v. Villaflores, we explained the reason behind the
need for the courts to arrive upon an actual finding to serve as
basis for a grant of attorney's fees, considering the dual
concept of these fees as ordinary and extraordinary:
It is settled that the award of attorney's fees is the exception
rather than the general rule; counsel's fees are not awarded
every time a party prevails in a suit because of the policy that
no premium should be placed on the right to litigate.
Attorney's fees, as part of damages, are not necessarily
equated to the amount paid by a litigant to a lawyer. In the
ordinary sense, attorney's fees represent the reasonable
compensation paid to a lawyer by his client for the legal
services he has rendered to the latter; while in its extraordinary
concept, they may be awarded by the court as indemnity for
damages to be paid by the losing party to the prevailing party.
Attorney's fees as part of damages are awarded only in the
instances specified in Article 2208 of the Civil Code. As such,
it is necessary for the court to make findings of fact and law
that would bring the case within the ambit of these enumerated
instances to justify the grant of such award, and in all cases it
must be reasonable.
We can glean from the above ruling that attorney's fees are not
awarded as a matter of course every time a party wins. We do
not put a premium on the right to litigate. On occasions that
those fees are awarded, the basis for the grant must be clearly
expressed in the decision of the court.
In awarding attorney's fees, the CA relied on Article 2208 (11)
of the Civil Code. The exercise of the discretion to allow
attorney's fees must likewise be justified. In Eastern Shipping
Lines, Inc. v. Margarine-Verkaufs-Union,  60 the Court said:
Insofar as the present case is concerned, the lower court made
no finding that it falls within any of the exceptions that would
justify the award of attorney's fees, such as gross and evident
bad faith in refusing to satisfy a plainly valid, just and
demandable claim. Even under the broad eleventh exception
of the cited article which allows the imposition of attorney's
fees "in any other case where the court deems it just and
equitable that attorney's fees and expenses in litigation should
be recovered," the Court stressed in Buan, supra, that "the
conclusion must be borne out by findings of facts and law.
What is just and equitable in a given case is not a mere matter
of feeling but of demonstration . . . . Hence, the exercise of
judicial discretion in the award of attorney's fees under Article
2208 (11) of the Civil Code demands a factual, legal or
equitable justification upon the basis of which the court
exercises its discretion. Without such justification, the award
is a conclusion without a premise, its basis being improperly
left to speculation and conjecture." The summary award of
counsel's fees made in the appealed judgment must therefore
be set aside.
Considering that the decision of the CA does not express any
justification other than stating that attorney's fees were being
awarded to the respondents "pursuant to paragraph 11 of
Article 2208 of the New Civil Code," the award by the CA
must be set aside; otherwise, attorney's fees would be turned
into a premium on the right to litigate, which is prohibited.
Moreover, attorney's fees, being in the nature of actual
damages, should be based on the facts on record and the Court
must delineate the legal reason for such award. 61
WHEREFORE, the Court AFFIRMS the judgment
promulgated on March 18, 2003 in C.A.-G.R. CV No. 53153
with respect to Civil Case No. CEB-12783 subject to
the MODIFICATION that the portion "ordering petitioners
to pay the respondents the sum of ₱20,000.00 as and for
attorney's fees" is DELETED; and ORDERS the petitioners
to pay the costs of suit.
SO ORDERED.
[G.R. NO. 172077 : October 9, 2009]

BICOL AGRO-INDUSTRIAL PRODUCERS

COOPERATIVE, INC.
(BAPCI), Petitioner, v. EDMUNDO O. OBIAS,
PERFECTO O. OBIAS, VICTOR BAGASINA, ELENA
BENOSA, MELCHOR BRANDES, ROGELIO
MONTERO, PEDRO MONTERO, CLAUDIO RESARI,
PILAR GALON, ANTONIO BUISON, PRUDENCIO
BENOSA, JR., MARIA VILLAMER and ROBERTO
PADUA, Respondent.

DECISION

PERALTA, J.:

Before this Court is a Petition for Review

on Certiorari 1 under Rule 65 of the Rules of Court, seeking to
set aside the August 24, 2005 Decision2 and March 28, 2006
Resolution3 of the Court of Appeals (CA) in CA-G.R. CV No.
59016.

The facts of the case:

Sometime in 1972, the Bicol Sugar Development Corporation

(BISUDECO) was established at Himaao, Pili, Camarines Sur.
In the same year, BISUDECO constructed a road ("the
disputed road") - measuring approximately 7 meters wide and
2.9 kilometers long. The disputed road was used by
BISUDECO in hauling and transporting sugarcane to and
from its mill site (Pensumil) and has thus become
indispensable to its sugar milling operations.4

On October 30, 1992, petitioner Bicol Agro-Industrial

Producers Cooperative, Inc. acquired the assets of
BISUDECO. On April 19, 1993, petitioner filed a
Complaint5 against respondents Edmundo Obias, Perfecto
Obias, Victor Bagasina, Elena Benosa, Melchor Brandes,
Rogelio Montero, Pedro Montero, Claudio Resari, Pilar Galon,
Antonio Buison, Prudencio Benosa, Jr., Victor Bagasina Jr.,
Maria Villamer, and Roberto Padua, alleging that on March
27, 1993 and April 3, 1993, respondents unjustifiably
barricaded the disputed road by placing bamboos, woods,
placards and stones across it, preventing petitioner's and the
other sugar planter's vehicles from passing through the
disputed road, thereby causing serious damage and prejudice
to petitioner.6
Petitioner alleged that BISUDECO constructed the disputed
road pursuant to an agreement with the owners of the
ricefields the road traversed. The agreement provides that
BISUDECO shall employ the children and relatives of the
landowners in exchange for the construction of the road on
their properties. Petitioner contends that through prolonged
and continuous use of the disputed road, BISUDECO acquired
a right of way over the properties of the landowners, which
right of way in turn was acquired by it when it bought
BISUDECO's assets. Petitioner prayed that respondents be
permanently ordered to restrain from barricading the disputed
road and from obstructing its free passage.7
In an Order8 dated April 19, 1993, the Regional Trial Court of
Pili (RTC), Camarines Sur, 5th Judicial Region, Branch 31,
ordered respondents, their agents and representatives to cease
and desist from placing barricades on the disputed road.9
In their Answer,10 respondents denied having entered into an
agreement with BISUDECO regarding the construction and
the use of the disputed road. They alleged that BISUDECO,
surreptitiously and without their knowledge and consent,
constructed the disputed road on their properties and has since
then intermittently and discontinuously used the disputed road
for hauling sugarcane despite their repeated protests.
Respondents claimed they tolerated BISUDECO in the
construction and the use of the road since BISUDECO was a
government-owned and controlled corporation, and the entire
country was then under Martial Law. Respondents likewise
denied that the road has become a public road, since no public
funds were used for its construction and maintenance.
Moreover, respondents alleged that with the exception of
Edmundo and Perfecto Obias, they are actual tillers of the
ricelands, having acquired their rights over said lands under
Presidential Decree No. 27 (PD 27). Edmundo and Perfecto
Obias are the owners of the eastern portion of the property on
which a portion of the road going to BISUDECO was
constructed. Respondents denied that they barricaded the
road.11
Jaime Manubay and Manolito Maralit, for themselves and in
representation of other sugarcane planters, filed the first
complaint-in-intervention.12
Petitioner filed an Amended Complaint13 and with leave of
court a Re-Amended Complaint,14 where it averred, as an
alternative cause of action in the event the lower court does
not find merit in its causes of action, that it will avail of the
benefits provided for under Article 64915 of the New Civil
Code. Petitioner thus demanded from respondents a right of
way over the disputed road for its use.16
Respondents filed an Answer17 to refute petitioner's alternative
cause of action. Respondents claimed that the road from the
sugarmill to the Maharlika Highway at Barangay Romero,
Bula, Camarines Sur, which exits at the Rural Bank of Bula
site, had a distance of only about 15 kilometers; hence,
respondents asserted that said road was shorter and was a
more appropriate right of way than the disputed road.18
On July 21, 1993, the RTC issued a Writ of Preliminary
Injunction19 ordering the respondents to desist from
constructing barricades across the road.
On June 28, 1994, nine other cooperatives20 filed their
Complaint-in-Intervention.21
On June 25, 1997 the RTC rendered a Decision,22 the
dispositive portion of which reads:
WHEREFORE, premises considered, a decision is hereby
rendered declaring the Writ of Preliminary Injunction issued
against all the herein defendants, their agents, representatives
and such other persons acting in their behalf, permanent and
perpetual BUT the plaintiff Bicol Agro-Industrial Cooperative,
Inc., (BAPCI) is hereby ordered to pay the owners of the lots
affected by the road, viz: Pedro Montero - P299,040.00; Pedro
Galon - P52,920.00; Clara Padua - P46,410.00; Antonio
Buizon - P35,070.00; Rogelio Montero - P41,160.00; Maria
Villamer - P41,580.00; Melchor Brandes - P76,440.00;
Prudencio Benosa - P41, 650.00; Elena Benosa - P39,550.00;
Victor Bagasina, Jr. - P39,410.00; and Claudio Resari
- P40,950.00. Upon full payment thereof, the plaintiff shall be
declared the absolute owner of the road in question. Legal rate
if interest is hereby imposed upon the plaintiff from the
finality of this decision until fully payment hereof. No costs.
SO ORDERED.23
The RTC ruled that petitioner failed to present any concrete
evidence to prove that there was an agreement between
BISUDECO and respondents for the construction of the
disputed road.24 Moreover, it held that petitioner did not
acquire the same by prescription.25 The RTC, however, also
held that petitioner was entitled to a compulsory easement of
right of way as provided for under Article 649 of the New
Civil Code upon payment of proper indemnity to
respondents.26
Both parties filed a motion for reconsideration of the RTC
Decision. Petitioner contended that: (1) the value of the land is
excessive; (2) the evidence is insufficient to justify the award;
(3) the decision is contrary to law and jurisprudence.
Respondents, on the other hand, alleged that: (1) the trial court
erred in declaring the persons mentioned in the decision's
dispositive portion to be entitled to indemnity for the
construction and the use of the disputed road; (2) BAPCI
should not be declared the absolute owner of the disputed road
upon full payment of the indemnity due to the defendants; and
(3) the decision failed to award damages.27
On September 24, 1997, the RTC denied both motions for
reconsideration.28 The parties then appealed to the CA.
On August 24, 2005, the CA rendered a Decision, the
dispositive portion of which reads:
WHEREFORE, premises considered, the appeal is PARTLY
GRANTED. The assailed decision of the Regional Trial
Court, Branch 31, Pili, Camarines Sur, in Civil Case No. P-
1899 is hereby MODIFIED as follows: the awards of
Php46,410.00 to Clara Padua and Php41,650.00 to Prudencio
Benosa are hereby DELETED, and the declaration that the
plaintiff BAPCI shall become the absolute owner of the
disputed road upon full payment of indemnity is REVERSED
and SET ASIDE. Accordingly, the owners of the servient
estate in the easement of right of way recognized in this
Decision shall retain ownership of the lands affected by the
easement in accordance with Art. 630 of the Civil Code. We
hereby AFFIRM the appeal in all other respects.
SO ORDERED.29
The CA affirmed the finding of the RTC that there was no
conclusive proof to sufficiently establish the existence of an
agreement between BISUDECO and respondents regarding
the construction of the disputed road.30 Moreover, the CA also
declared that an easement of right of way is discontinuous and
as such cannot be acquired by prescription.31 The CA likewise
affirmed the finding of the RTC that petitioner was entitled to
a compulsory easement of right of way upon payment of
proper indemnity to respondents. The CA, however, declared
that ownership over the disputed road should remain with
respondents, despite the grant of a compulsory
easement.32 Lastly, the CA deleted the awards to Prudencio
Benosa (Benosa) and Clara Padua (Padua), since the former
never claimed ownership of any portion of the lands affected
by the disputed road and the latter was not a party to the
proceedings below.33
Petitioner then filed a Motion for Reconsideration alleging
among others that the CA Decision failed to rule on the issue
of estoppel and laches. Moreover, Benosa and Padua filed a
Motion for Reconsideration assailing the portion of the CA
Decision deleting the award of indemnity to them. On March
28, 2006, the CA issued a Resolution denying the same.
Hence, herein petition, with petitioner raising the following
assignment of errors, to wit:
I.
THE HONORABLE COURT OF APPEALS ERRED
SERIOUSLY IN NOT FINDING THAT THERE WAS
FORGED AN AGREEMENT BETWEEN BISUDECO
MANAGEMENT AND THE PRIVATE RESPONDENTS
FOR THE CONTRUCTION OF THE ROAD IN QUESTION.
II.
THE HONORABLE PUBLIC RESPONDENT COURT OF
APPEALS ERRED IN NOT CONSIDERING THE
PRINCIPLES OF PRESCRIPTION, LACHES AND
ESTOPPEL IN THE CASE AT BAR.
III.
THE HONORABLE COURT OF APPEALS ERRED IN
COMPLETELY DISREGARDING THE CLASSIFICATION
OF THE ROAD IN QUESTION AS BARANGAY ROAD.
IV.
IN THE ALTERNATIVE CAUSE OF ACTION, THE
PUBLIC RESPONDENT SERIOUSLY ERRED IN
CONSIDERING THE VALUATION OF THE LANDS
AFFECTED BY THE ROAD IN 1994, AND NOT IN 1974,
WHEN SAID ROAD WAS CONSTRUCTED.
V.
THE HONORABLE PUBLIC RESPONDENT ERRED
SERIOUSLY WHEN IT FAILED ALSO TO CONSIDER
THE LEGAL PRINCIPLE OF UNJUST ENRIGHTMENT
AT THE EXPENSE OF ANOTHER.34
At the outset, this Court shall address some procedural
matters. Quite noticeably, herein petition is denominated as
one filed under Rule 6535 of the Rules of Court
notwithstanding that it seeks to assail the Decision and
Resolution of the CA. Clearly, petitioner had availed of the
improper remedy as the appeal from a final disposition of the
CA is a Petition for Review under Rule 45 and not a special
civil action under Rule 65 of the Rules of Court.36
In Active Realty and Development Corporation v.
Fernandez,37 this Court discussed the difference between
petitions filed under Rule 65 and Rule 45, viz:
A Petition for Certiorari under Rule 65 is proper to correct
errors of jurisdiction committed by the lower court, or grave
abuse of discretion which is tantamount to lack of jurisdiction.
This remedy can be availed of when "there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary course
of law."
Appeal by certiorari under Rule 45 of the Rules of Court, on
the other hand, is a mode of appeal available to a party
desiring to raise only questions of law from a judgment or
final order or resolution of the Court of Appeals,
the Sandiganbayan, the Regional Trial Court or other courts
whenever authorized by law.
x x x The general rule is that the remedy to obtain reversal or
modification of judgment on the merits is appeal. Thus, the
proper remedy for the petitioner should have been a Petition
for Review on Certiorariunder Rule 45 of the Rules of Court
since the decision sought to be reversed is that of the CA. The
existence and availability of the right of appeal proscribes a
resort to certiorari, because one of the requisites for availment
of the latter is precisely that "there should be no appeal. The
remedy of appeal under Rule 45 of the Rules of Court was still
available to the petitioner.38
Rule 45 is clear that decisions, final orders or resolutions of
the Court of Appeals in any case, i.e., regardless of the nature
of the action or proceeding involved, may be appealed to this
Court by filing a Petition for Review, which would be but a
continuation of the appellate process over the original
case.39 Moreover, it is basic that one cannot avail of the
remedy provided for under Rule 65 when an appeal is still
available. Hence, petitioner should have filed its petition under
Rule 45.
The procedural infirmity notwithstanding and in the interest of
substantial justice, this Court shall consider herein petition as
one filed under Rule 45 especially since it was filed well
within the reglementary period proscribed under the said Rule.
The Court also takes notice that the assignment of errors
raised by petitioner does not allege grave abuse of discretion
or lack of jurisdiction on the part of the CA.
On the Existence of an Agreement between BISUDECO
and Respondents
Anent the first error raised, petitioner argues that the CA erred
in not finding that BISUDECO and respondents forged an
agreement for the construction of the road in dispute.
Petitioner thus asserts its entitlement to an easement of right of
way over the properties of respondents by virtue of said
agreement.
An easement of right of way was succinctly explained by the
CA in the following manner, to wit:
Easement or servitude is an encumbrance imposed upon an
immovable for the benefit of another immovable belonging to
a different owner. By its creation, easement is established
either by law (in which case it is a legal easement) or by will
of the parties (a voluntary easement). In terms of use,
easement may either be continuous or
discontinuous. The easement of right of way ' the privilege
of persons or a particular class of persons to pass over
another's land, usually through one particular path or
linen - is characterized as a discontinuous
easement because its use is in intervals and depends on the
act of man. Because of this character, an easement of a
right of way may only be acquired by virtue of a title.40
Article 622 of the New Civil Code is the applicable law in the
case at bar, viz:
Art. 622. Continuous non-apparent easements, and
discontinuous ones, whether apparent or not, may be
acquired only by virtue of a title.
Based on the foregoing, in order for petitioner to acquire the
disputed road as an easement of right-of-way, it was
incumbent upon petitioner to show its right by title or by an
agreement with the owners of the lands that said road
traversed.
While conceding that they have no direct evidence of the
alleged agreement, petitioner posits that they presented
circumstantial evidence which, if taken collectively, would
prove its existence.41 Specifically, petitioner cites the
following circumstances, to wit:
A. The agreement was of public knowledge.42 Allegedly
BISUDECO and respondents entered into an agreement for
the construction of the road provided that the latter, their
children or relatives were employed with BISUDECO.
b. The road was continuously used by BISUDECO and the
public in general.43
c. There was no protest or complaint from respondents for
almost a period of two decades.44
d. The portions of the land formerly belonging to respondents
affected by the road were already segregated and surveyed
from the main lots.45
e. The road in dispute is already a barangay road.
The well-entrenched rule in our jurisdiction is that only
questions of law may be entertained by this Court in a Petition
for Review on Certiorari . This rule, however, is not iron-clad
and admits certain exceptions, such as when (1) the conclusion
is grounded on speculations, surmises or conjectures; (2) the
inference is manifestly mistaken, absurd or impossible; (3)
there is grave abuse of discretion; (4) the judgment is based on
a misapprehension of facts; (5) the findings of fact are
conflicting; (6) there is no citation of specific evidence on
which the factual findings are based; (7) the findings of
absence of facts are contradicted by the presence of evidence
on record; (8) the findings of the Court of Appeals are
contrary to those of the trial court; (9) the Court of Appeals
manifestly overlooked certain relevant and undisputed facts
that, if properly considered, would justify a different
conclusion; (10) the findings of the Court of Appeals are
beyond the issues of the case; and (11) such findings are
contrary to the admissions of both parties.46
After a painstaking review of the records, this Court finds no
justification to warrant the application of any exception to the
general rule.
Crucial to the petitioner's cause was its burden of proving the
existence of the alleged agreement between BISUDECO and
respondents for the construction of the road. In this regard, the
RTC found that petitioner failed to prove its existence, to wit:
It is clear that the plaintiff failed to present any concrete
evidence to prove that there was such an agreement between
BISUDECO and defendants. Hereunder quoted are the
testimonies of plaintiff's witnesses regarding the alleged
agreement.
Romeo Deveterbo, Transportation Superintendent of
BISUDECO testified'
Cross Examination by Atty. Pejo
Q: You also mentioned that there was an agreement between
Senator Cea, Mr. Obias and some of the tenants?cralawred
A: Yes.
Q: You mentioned that this was not in writing, am I right?
cralawred
A: Yes.
Q: How did you know about it that it was not in writing, who
told you, Senator Cea?cralawred
A: It was commonly known to all original employees of the
BISUDECO.
Q: You know it from the management?cralawred
A: From co-employees.
Q: You learned about that agreement from you co-employees?
cralawred
A: Yes.
Q: In other words, therefore, that is why you said you are
confused between Edmundo Cea and Perfecto Obias because
you just learned it from other employees and you were never
present when they talked about it, am I right?cralawred
A: Yes. x x x
To this effect also is the testimony of Angel Lobo, head of the
agricultural Department of BAPCI, to wit:
A: Yes, your Honor?cralawred
COURT: From where did you learn?cralawred
A: From people whom I talked with at that time and it is a
public common knowledge at that time.
xxx
Atty. Carandang: I repeat my question, Your Honor.
You said you acquired it from or because of common
knowledge and you mentioned some people. Who are those
people you are referring to whom you acquired that
knowledge?cralawred
A: Most of all, the late Benjamin Bagasina, Barangay Captain
at that time who was our employee in consideration of this
agreement, then we have also a Civil Engineering Head, Civil
Engineering Department who is responsible for the
maintenance of this road. I learned from him that this
arrangement established the fact why this road was
constructed.
Q: Who is the head of the Engineering Dept?
xxx
COURT: May answer.
A: Engineer Pablo Tordilla who was then the head of our Civil
Engineering Dept.
But this Engineer Pablo Tordilla, Lobo's alleged source of the
information, was never presented in Court. And, according to
the Chief Accountant of BAPCI, David Severo:
A: When I was interviewing Mrs. Alma Montero Penaflor she
filed to me a certain arrangement related to the used of the
land to Himaao as road going to the central.
COURT: You mean Himaao Millsite road?cralawred
A: Yes, sir.
Atty. Carandang:
Q: What arrangement is that supposedly filed to you?
cralawred
A: She told me in exchange for the use of the road, the
relatives or owners or tenants of the land will be hired by the
sugar Central?cralawred
COURT:
Q: So, only the tenants not the owners?cralawred
A: The tenant's children the road belongs.
xxx
Finally, intervenor Antonio Austria, in trying to show you that
there was consent and approval on the part of the defendant
Edmundo Obias to give the right of way to BISUDECO at the
time to be used in hauling the sugarcane of the planters to the
Central, averred the following uncertain statements:
A: Well, he has (sic) having a case against PENSUNIL,
regarding the property I think the right of way going to
PENSUMIL right now we discuss it and he said he is allowing
it anymore but then I reminded him wayback in 1974 to 1980
he was one of the biggest planters in the part of Partido so he
consented to the late I think Edmundo Cea, the owner of
BISUDECO at that time to pass his property since he is also
milling a lot of things at that time and many other things one
of the concession mill was I think some of the tenants there in
Himaao will be employed in the mill.
xxx
These aforequoted testimonies of the plaintiff's witnesses
failed to satisfactorily establish the plaintiff's contention that
there was such an agreement. Likewise, the list of the
Employees of Defendants' relatives, son/daughter employed
by the BISUDECO (Exhibit H) does not in any manner prove
the alleged agreement.47
For its part, the CA also ruled that petitioner failed to prove
the existence of the said agreement, to wit:
Like the lower court, we found no conclusive proof to
sufficiently establish the existence of an agreement between
BISUDECO and the defendants-appellants regarding the
construction and the use of the disputed road. The lower court
correctly disbelieved the plaintiffs-appellants' contention that
an agreement existed because there is simply no direct
evidence to support this allegation. BAPCI submitted purely
circumstantial evidence that are not sufficiently adequate as
basis for the inference than an agreement existed. By
themselves, the circumstances the plaintiffs-appellants cited -
i.e., the employment of sixteen (16) relatives of the
defendants-appellants; the defendants-appellants' unjustified
silence; the fact that the existence of the agreement is known
to everyone, etc. - are events susceptible of diverse
interpretations and do not necessarily lead to BAPCI's desired
conclusion. Additionally, the testimonies that the plaintiffs-
appellants presented are mainly hearsay, as not one among the
witnesses had personal knowledge of the agreement by reason
of direct participation in the agreement or because the witness
was present when the agreement was concluded by the parties.
Thus, given the defendants-appellants' categorical denial that
an agreement existed, we sustain the lower's conclusion that
no agreement existed between BISUDECO and the
defendants-appellants.48
Based on the foregoing, the inability of petitioner to prove the
existence of an agreement militates its allegations in herein
petition. On this score, both the RTC and the CA are one in
ruling that petitioner had failed to prove the existence of the
agreement between BISUDECO and the respondents for the
construction of the road. Also, well-established is the rule that
"factual findings of the Court of Appeals are conclusive on the
parties and carry even more weight when the said court
affirms the factual findings of the trial court."49 Hence, this
Court finds no reason to reverse such findings.
On Acquisition by Prescription
Petitioner would have this Court re-examine Costabella
Corporation v. Court of Appeals50 (Costabella) where the
Court held that, "It is already well-established that a right of
way is discontinuous and, as such, cannot be acquired by
prescription."51 Petitioner contends that some recognized
authorities52 share its view that an easement of right of way
may be acquired by prescription.
Be that as it may, this Court finds no reason to re-examine
Costabella. This Court is guided by Bogo-Medellin Milling
Co., Inc. v. Court of Appeals53 (Bogo-Medellin), involving the
construction of a railroad track to a sugar mill. In Bogo-
Medellin, this Court discussed the discontinuous nature of an
easement of right of way and the rule that the same cannot be
acquired by prescription, to wit:
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,
easement is continuous if its use is, or may be, incessant
without the intervention of any act of man, like the easement
of drainage; and it is discontinuous if it is used at intervals and
depends on the act of man, like the easement of right of way.
The easement of right of way is considered discontinuous
because it is exercised only if a person passes or sets foot on
somebody else's land. Like a road for the passage of vehicles
or persons, an easement of right of way of railroad tracks is
discontinuous because the right is exercised only if and when
a train operated by a person passes over another's property. In
other words, the very exercise of the servitude depends upon
the act or intervention of man which is the very essence of
discontinuous easements.
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.
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. 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.
In this case, the presence of railroad tracks for the passage of
petitioner's trains denotes the existence of an apparent but
discontinuous easement of right of way. And under Article
622 of the Civil Code, discontinuous easements, whether
apparent or not, may be acquired only by title. Unfortunately,
petitioner Bomedco never acquired any title over the use of
the railroad right of way whether by law, donation,
testamentary succession or contract. Its use of the right of
way, however long, never resulted in its acquisition of the
easement because, under Article 622, the discontinuous
easement of a railroad right of way can only be acquired by
title and not by prescription.54
Applying Bogo-Medellin to the case at bar, the conclusion is
inevitable that the road in dispute is a discontinuous easement
notwithstanding that the same may be apparent. To reiterate,
easements are either continuous or discontinuous according
to the manner they are exercised, not according to the
presence of apparent signs or physical indications of the
existence of such easements. Hence, even if the road in
dispute has been improved and maintained over a number of
years, it will not change its discontinuous nature but simply
make the same apparent. To stress, Article 622 of the New
Civil Code states that discontinuous easements, whether
apparent or not, may be acquired only by virtue of a title.
On Laches and Estoppel
Petitioner argues that estoppel and laches bar respondents
from exercising ownership rights over the properties traversed
by the road in dispute. In support of said argument, petitioner
posits that BISUDECO had been peacefully and continuously
using the road without any complaint or opposition on the part
of the respondents for almost twenty years. Respondents, on
the other hand, claim that they merely tolerated the use of their
land as BISUDECO was a government-owned and controlled
corporation and considering that the disputed road was
constructed during the time of Martial Law.
There is no absolute rule on what constitutes laches. It is a rule
of equity and applied not to penalize neglect or sleeping on
one's rights, but rather to avoid recognizing a right when to do
so would result in a clearly unfair situation. The question of
laches is addressed to the sound discretion of the court and
each case must be decided according to its particular
circumstances.55 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.56
In herein petition, the CA denied petitioner's argument in the
wise:
As previously explained in our Decision, the applicable law is
Article 622 of the Civil Code of the Philippines, which
provides:
Art. 622. Continuous non-apparent easements, and
discontinuous ones, whether apparent or not, may be acquired
only by virtue of a title.
The eminent jurist, former Senator Arturo M. Tolentino,
opines that this provision seeks to prevent the imposition of a
burden on a tenement based purely on the generosity,
tolerance and spirit of neighborliness of the owners thereof.
We applied the cited provision to the case in ruling that no
easement of right of way was acquired; based on the evidence
presented, the plaintiff-appellant failed to satisfactorily prove
the existence of an agreement evidencing any right or title to
use the disputed road. We additionally rejected the plaintiff-
appellant's position that it had acquired the easement of right
of way through acquisitive prescription, as settled
jurisprudence states that an easement of right of way cannot be
acquired by prescription.
We hold the same view on the issue of acquisition of an
easement of right of way by laches. To our mind, settled
jurisprudence on the application of the principle of estoppel by
laches militates against the acquisition of an easement of right
of way by laches.
Laches is a doctrine in equity and our courts are basically
courts of law and not courts of equity; equity, which has been
aptly described as "justice outside legality," should be applied
only in the absence of, and never against, statutory law;
Aeguetas nunguam contravenit legis. Based on this principle,
we find that the positive mandate of Article 622 of the Civil
Code - the statutory provision requiring title as basis for the
acquisition of an easement of a right of way - precludes the
application of the equitable principle of laches.57
This Court agrees with the CA. The fact that the law is
categorical that discontinuous easements cannot be acquired
by prescription militates against petitioner's claim of laches.
To stress, discontinuous easements can only be acquired by
title. More importantly, whether or not the elements of laches
are present is a question involving a factual determination by
the trial court.58 Hence, the same being a question of fact, it
cannot be the proper subject of herein petition. On the other
hand, as to the issue of estoppel, this Court likewise agrees
with the finding of the CA that petitioner did not present any
evidence that would show an admission, representation or
conduct by respondents that will give rise to estoppel.59
Classification of the Road in Dispute as a Barangay Road
Petitioner argues that the CA erred when it disregarded the
classification of the road in question as a barangay road. In
support of said argument, petitioner presented Exhibit Q, a
Tax Declaration or Field Appraisal and Assessment
Sheet60 (1991 FAAS) with Survey Number 1688-40 and PIN
No. 026-01-009-08-037, dated April 30, 1991, which they
claim proves that the road in dispute is already a barangay
road.
The same is again a question of fact which cannot be the
proper subject of herein petition. Petitioner cannot have this
Court re-examine the evidentiary value of the documents it
presented before the RTC as the same is not a function of this
Court. In any case, after a closer scrutiny of the 1991 FAAS,
this Court holds that the same is insufficient to prove
petitioner's claim.
Respondents, in their Comment,61 argue against the
classification of the road in dispute as a barangay road in the
wise:
Petitioner also stated that the Honorable Court of Appeals fails
to consider the fact that the owner of the road in question is
the Municipality of Pili in the Province of Camarines Sur and
as proof of such claim they presented and marked as Exhibit
Q, tax declaration no. 009-756 or Annex D of their Petition.
However, private respondents wish to call the attention of this
Honorable Court to the following:
A. Tax Declaration No. 009-828 attached as Annex C-6 of the
Verified Petition declared in the name of Edmundo Obias (one
of the private respondents);
b. Actual Use portion of said Annex C-6 marked as Exh. No.
N-6-a-1 which states "Road Lot (BISUDECO Road)";
andcralawlibrary
c. The Memoranda portion in the second page of Annex C-6
which states: "Revised to declare the property in The name of
the rightful owner, Edmundo Obias based from the approved
subdivision plan, Bsd-05-000055 (OLT) & technical
descriptions. Likewise area was made to conform with the said
subdivision plan from 4,773 sq.m. to 11,209 sq.m.
Obviously, the alleged Exhibit Q of the Petitioner is an
erroneous tax declaration, thus, negates the claim of the
Petitioner that the same is owned by the Municipality of Pili
and has been declared a barangay road. Private respondents
cannot understand why the herein Petitioner alleged this
matter and used it as a proof to support their claim when they
are already in possession of a tax declaration correcting the
same and even attached the same as part of their Petition.62
Based on the foregoing, petitioner's attempt to refute the
contents of the 1995 FAAS by claiming that the lands of
Edmundo are not involved in the case at bar must fail. It is
clear that respondents are the tenant-beneficiaries of the lands
of Edmundo under PD 27; hence, contrary to the claim of
petitioner, the lands of Edmundo are the subject matter of
herein petition.
In addition, it is curious that petitioner relies on the 1991
FAAS yet finds exception to the contents of the 1995 FAAS.
After a closer scrutiny of both documents, it appears to this
Court that the land described in the 1991 FAAS is also the
same land described in the 1995 FAAS. Both FAAS involve
land measuring 4,773 square meters. Likewise, both FAAS
have the same PIN Number (026-01-009-08-037) and Survey
Number (1688-40). Accordingly, the annotation contained in
the 1995 FAAS, to the effect that a "BISUDECO road" does
not belong to the Municipality of Pili, serves to weaken
petitioner's claim.???

In its Reply,63 petitioner counters:

II. While Petitioners claim that the road belongs to the

Municipal Government of Pili, yet what they attached to the
Petition as Annex "C-7" is a tax declaration of Edmundo
Obias. Petitioners have the following observations:

xxx

(b) That land of Edmundo Obias covered by Annex "C-6" to

the Petition is not included or involved in this case at bar. His
name does not appear to be awarded in the Decision of the
Honorable Court of Appeals and also in the list of
beneficiaries to receive monetary considerations made by Mr.
Angel Lobo.64

After a painstaking review of the records, this Court is more

inclined to believe the claim of respondents. The claim of
petitioner to the effect that the land of Edmundo Obias is not
included in the case at bar is misleading. It may be true that
Edmundo was not awarded indemnity by the lower courts,
however, the same does not mean that his lands do not form
part of the subject matter of herein petition.

It bears to stress that Edmundo claimed in the CA that he was

the owner of the affected ricelands and that respondents were
merely his tenants-beneficiaries under PD 27, otherwise
known as the Tenant Emancipation Decree.65 The CA,
however, dismissed said claim because it was raised for the
first time on appeal. It also held that the averments in the
documents submitted by Edmundo in the RTC described
respondents as "owners" of the land they till; hence, the same
constituted binding judicial admissions.66

G.R. No. 173252               July 17, 2009
UNISOURCE COMMERCIAL AND DEVELOPMENT
CORPORATION, Petitioner,
vs.
JOSEPH CHUNG, KIAT CHUNG and KLETO
CHUNG, Respondents.
DECISION
QUISUMBING, J.:
The instant petition assails the Decision1 dated October 27,
2005 and the Resolution2 dated June 19, 2006 of the Court of
Appeals in CA-G.R. CV No. 76213. The appellate court had
reversed and set aside the Decision3 dated August 19, 2002 of
the Regional Trial Court of Manila, Branch 49, in Civil Case
No. 00-97526.
The antecedent facts are as follows:
Petitioner Unisource Commercial and Development
Corporation is the registered owner of a parcel of land covered
by Transfer Certificate of Title (TCT) No. 1762534 of the
Register of Deeds of Manila. The title contains a
memorandum of encumbrance of a voluntary easement which
has been carried over from the Original Certificate of Title of
Encarnacion S. Sandico. The certified English translation5 of
the annotation reads:
By order dated 08 October 1924 of the Court of First Instance
of Manila, Chamber IV (AP-7571/T-23046), it is declared that
Francisco Hidalgo y Magnifico has the right to open doors in
the course of his lot described as Lot No. 2, Block 2650 of the
map that has been exhibited, towards the left of the Callejon
that is used as a passage and that appears as adjacent to the
said Lot 2 and to pass through the land of Encarnacion
Sandico y Santana, until the bank of the estero that goes to the
Pasig River, and towards the right of the other Callejon that is
situated between the said Lot 2 and Lot 4 of the same Block
N.6
As Sandico’s property was transferred to several owners, the
memorandum of encumbrance of a voluntary easement in
favor of Francisco M. Hidalgo was consistently annotated at
the back of every title covering Sandico’s property until TCT
No. 176253 was issued in petitioner’s favor. On the other
hand, Hidalgo’s property was eventually transferred to
respondents Joseph Chung, Kiat Chung and Cleto Chung
under TCT No. 121488.7
On May 26, 2000, petitioner filed a Petition to Cancel the
Encumbrance of Voluntary Easement of Right of Way8 on the
ground that the dominant estate has an adequate access to a
public road which is Matienza Street. The trial court dismissed
the petition on the ground that it is a land registration case.
Petitioner moved for reconsideration. Thereafter, the trial
court conducted an ocular inspection of the property. In an
Order9 dated November 24, 2000, the trial court granted the
motion and made the following observations:
1. The dominant estate is a property enclosed with a concrete
fence with no less than three (3) doors in it, opening to an
alley belonging to the servient estate owned by the petitioner.
The alley is leading to Matienza St.;
2. The dominant estate has a house built thereon and said
house has a very wide door accessible to Matienza St. without
any obstruction. Said street is perpendicular to J.P. Laurel St.
It is therefore found that the dominant estate has an egress to
Matienza St. and does not have to use the servient estate.10
In their Answer,11 respondents countered that the
extinguishment of the easement will be of great prejudice to
the locality and that petitioner is guilty of laches since it took
petitioner 15 years from acquisition of the property to file the
petition.
In a Decision dated August 19, 2002, the trial court ordered
the cancellation of the encumbrance of voluntary easement of
right of way in favor of the dominant estate owned by
respondents. It found that the dominant estate has no more use
for the easement since it has another adequate outlet to a
public road which is Matienza Street. The dispositive portion
of the decision reads:
IN VIEW OF ALL THE FOREGOING, the Court hereby
orders the cancellation of the Memorandum of Encumbrance
annotated in TCT No. 176253 which granted a right of way in
favor of the person named therein and, upon the finality of this
decision, the Register of Deeds of the City of Manila is hereby
directed to cancel said encumbrance.
With respect to the other prayers in the petition, considering
that the same are mere incidents to the exercise by the owners
of right of their ownership which they could well do without
the Court’s intervention, this Court sees no need to
specifically rule thereon. The Court cannot award plaintiff’s
claims for damages and attorney’s fees for lack of sufficient
bases therefor.
SO ORDERED.12
Respondents appealed to the Court of Appeals. On October
27, 2005, the appellate court reversed the decision of the trial
court and dismissed the petition to cancel the encumbrance of
voluntary easement of right of way.
The appellate court ruled that when petitioner’s petition was
initially dismissed by the executive judge, the copy of the
petition and the summons had not yet been served on
respondents. Thus, when petitioner moved to reconsider the
order of dismissal, there was no need for a notice of hearing
and proof of service upon respondents since the trial court has
not yet acquired jurisdiction over them. The trial court
acquired jurisdiction over the case and over respondents only
after the summons was served upon them and they were later
given ample opportunity to present their evidence.
The appellate court also held that the trial court erred in
canceling the encumbrance of voluntary easement of right of
way. The appellate court ruled that Article 631(3)13 of the
Civil Code, which was cited by the trial court, is inapplicable
since the presence of an adequate outlet to a highway
extinguishes only legal or compulsory easements but not
voluntary easements like in the instant case. There having
been an agreement between the original parties for the
provision of an easement of right of way in favor of the
dominant estate, the same can be extinguished only by mutual
agreement or by renunciation of the owner of the dominant
estate.
The decretal portion of the decision reads:
WHEREFORE, the foregoing considered, the appeal is hereby
GRANTED and the assailed decision is REVERSED and SET
ASIDE. Accordingly, the petition to cancel the encumbrance
of right of way is dismissed for lack of merit.
No costs.
SO ORDERED.14
Before us, petitioner alleges that the Court of Appeals erred in:
I.
… BRUSHING ASIDE PETITIONER’S CONTENTION
THAT THE EASEMENT IS PERSONAL SINCE THE
ANNOTATION DID NOT PROVIDE THAT IT IS
BINDING ON THE HEIRS OR ASSIGNS OF SANDICO.
II.
… NOT CONSIDERING THAT THE EASEMENT IS
PERSONAL SINCE NO COMPENSATION WAS GIVEN
TO PETITIONER.
III.
… DISREGARDING THE CIVIL CODE PROVISION ON
UNJUST ENRICHMENT.
IV.
… TREATING THE EASEMENT AS PREDIAL.15
Petitioner contends that the fact that Sandico and Hidalgo
resorted to judicial intervention only shows that they contested
the existence of the requisite factors establishing a legal
easement. Besides, the annotation itself provides that the
easement is exclusively confined to the parties mentioned
therein, i.e., Sandico and Hidalgo. It was not meant to bind
their heirs or assigns; otherwise, they would have expressly
provided for it. Petitioner adds that it would be an unjust
enrichment on respondents’ part to continue enjoying the
easement without adequate compensation to petitioner.
Petitioner also avers that to say that the easement has attached
to Hidalgo’s property is erroneous since such property no
longer exists after it has been subdivided and registered in
respondents’ respective names.16 Petitioner further argues that
even if it is bound by the easement, the same can be cancelled
or revoked since the dominant estate has an adequate outlet
without having to pass through the servient estate.
Respondents adopted the disquisition of the appellate court as
their counter-arguments.
The petition lacks merit.
As defined, an easement is a real right on another’s property,
corporeal and immovable, whereby the owner of the latter
must refrain from doing or allowing somebody else to do or
something to be done on his property, for the benefit of
another person or tenement. Easements are established either
by law or by the will of the owner. The former are called legal,
and the latter, voluntary easements.17
In this case, petitioner itself admitted that a voluntary
easement of right of way exists in favor of
respondents.1avvphi1 In its petition to cancel the encumbrance
of voluntary easement of right of way, petitioner alleged that
"[t]he easement is personal. It was voluntarily constituted in
favor of a certain Francisco Hidalgo y Magnifico, the owner of
[the lot] described as Lot No. 2, Block 2650."18 It further
stated that "the voluntary easement of the right of way in favor
of Francisco Hidalgo y Magnifico was constituted simply by
will or agreement of the parties. It was not a statutory
easement and definitely not an easement created by such court
order because ‘[the] Court merely declares the existence of an
easement created by the parties."19 In its Memorandum20 dated
September 27, 2001, before the trial court, petitioner reiterated
that "[t]he annotation found at the back of the TCT of
Unisource is a voluntary easement."21
Having made such an admission, petitioner cannot now claim
that what exists is a legal easement and that the same should
be cancelled since the dominant estate is not an enclosed
estate as it has an adequate access to a public road which is
Callejon Matienza Street.22 As we have said, the opening of an
adequate outlet to a highway can extinguish only legal or
compulsory easements, not voluntary easements like in the
case at bar. The fact that an easement by grant may have also
qualified as an easement of necessity does not detract from its
permanency as a property right, which survives the
termination of the necessity.23 A voluntary easement of right
of way, like any other contract, could be extinguished only by
mutual agreement or by renunciation of the owner of the
dominant estate.241avvphi1
Neither can petitioner claim that the easement is personal only
to Hidalgo since the annotation merely mentioned Sandico and
Hidalgo without equally binding their heirs or assigns. That
the heirs or assigns of the parties were not mentioned in the
annotation does not mean that it is not binding on them.
Again, a voluntary easement of right of way is like any other
contract. As such, it is generally effective between the parties,
their heirs and assigns, except in case where the rights and
obligations arising from the contract are not transmissible by
their nature, or by stipulation or by provision of
law.25 Petitioner cites City of Manila v. Entote26 in justifying
that the easement should bind only the parties mentioned
therein and exclude those not so mentioned. However, that
case is inapplicable since the issue therein was whether the
easement was intended not only for the benefit of the owners
of the dominant estate but of the community and the public at
large.27 In interpreting the easement, the Court ruled that the
clause "any and all other persons whomsoever" in the
easement embraces only "those who are privy to the owners of
the dominant estate, Lots 1 and 2 Plan Pcs-2672" and excludes
"the indiscriminate public from the enjoyment of the right-of-
way easement."28
We also hold that although the easement does not appear in
respondents’ title over the dominant estate, the same subsists.
It is settled that the registration of the dominant estate under
the Torrens system without the annotation of the voluntary
easement in its favor does not extinguish the easement. On the
contrary, it is the registration of the servient estate as free, that
is, without the annotation of the voluntary easement, which
extinguishes the easement.29
Finally, the mere fact that respondents subdivided the property
does not extinguish the easement. Article 618 30 of the Civil
Code provides that if the dominant estate is divided between
two or more persons, each of them may use the easement in its
entirety, without changing the place of its use, or making it
more burdensome in any other way.
WHEREFORE, the instant petition is DENIED. The Decision
dated October 27, 2005 and the Resolution dated June 19,
2006 of the Court of Appeals in CA-G.R. CV No. 76213 are
AFFIRMED.
SO ORDERED.
G.R. No. 228334, June 17, 2019
SPS. TEDY GARCIA AND PILAR GARCIA,
PETITIONERS, v. LORETA T. SANTOS, WINSTON
SANTOS AND CONCHITA TAN, RESPONDENTS.
DECISION
CAGUIOA, J.:
Before the Court is a Petition for Review
on Certiorari1 (Petition) under Rule, 45 of the Rules of Court
filed by petitioners Tedy Garcia (Tedy) and Pilar Garcia
(Pilar) (collectively the Sps. Garcia), assailing the
Decision2 dated June 30, 2016 (assailed Decision) and
Resolution3 dated October 5, 2016 (assailed Resolution) of the
Court of Appeals,4 (CA, Special 18th Division) in CA-G.R.
CEB-CV No. 05701.
The Facts and Antecedent Proceedings
As narrated by the CA in its assailed Decision and as culled
from the records of the instant case, the essential facts and
antecedent proceedings of the case are as follows:cralawred
The instant case stems from a Complaint5 for "[easements of
light, air and view, lateral support, and intermediate distances
and damages with prayer for writ of preliminary injunction
and/or issuance of temporary restraining order]" (Complaint)
filed on February 18, 2009 by the Sps. Garcia against the
respondents Spouses Loreta and Winston Santos (the Sps.
Santos) and respondent Conchita Tan (Tan) before the
Regional Trial Court of Iloilo City, Branch 31 (RTC). The
case was docketed as Civil Case No. 09-30023.
As alleged in the Complaint, the Sps. Garcia are the registered
owners of Lot 2, Blk. 1, San Jose Street, Southville
Subdivision, Molo, Iloilo City (subject property), covered by
Transfer Certificate of Title (TCT) No. T- 130666.6
The subject property, which has been occupied by the Sps.
Garcia for about eleven (11) years, has a one-storey residential
house erected thereon and was purchased by them from the
Sps. Santos in October 1998. At the time of the purchase of
the subject property from the Sps. Santos, the one-storey
house was already constructed. Also, at the time of the
acquisition of the subject property, the adjoining lot, Lot 1,
which is owned by the Sps. Santos, was an idle land without
any improvements. Lot 1 is covered by TCT No. T-
114137,7 registered under the name of the Sps. Santos. Lot 1
remained empty until the Sps. Santos started the construction
of a two-storey residential house therein on January 24, 2009.
Upon inquiry from the construction workers, Tedy was
erroneously informed that Tan was the new owner of Lot 1.
As further alleged in the Complaint, the building constructed
on Lot 1 is taller than the Sps. Garcia's one-storey residential
house. As such, the Sps. Santos' building allegedly obstructed
the Sps. Garcia's right to light, air, and view. The Sps. Garcia
bemoaned how, prior to the construction on Lot 1, they
received enough bright and natural light from their windows.
The construction allegedly rendered the Sps. Garcia's house
dark such that they are unable to do their normal undertakings
in the bedroom, living room and other areas of the house
without switching on their lights. The Sps. Garcia likewise
alleged that the said structure constructed on Lot 1 is at a
distance of less than three meters away from the boundary
line, in alleged violation of their easement. Furthermore, the
Sps. Santos allegedly m de excavations on Lot 1 without
providing sufficient lateral support to the concrete perimeter
fence of the Sps. Garcia.
Hence, in their Complaint, aside from asking for damages, the
Sps. Garcia prayed that: the RTC declare them as having
acquired the easement of light, air, and view against Lot 1; the
respondents be prohibited from constructing any structure on
Lot 1 taller than the Sps. Garcia's one-storey residential house;
the respondents be prohibited from building any structure on
Lot 1 at a distance of less than three meters from the boundary
line; and the respondents be prohibited from making
excavations on Lot 1 that deprive sufficient lateral support to
the fence located on the subject property.
8
On February 19, 2009, the RTC issued an Order  granting a
Temporary Restraining Order (TRO) enjoining the Sps. Santos
from further undertaking further construction work on Lot 1.
The TRO was eventually lifted on March 20, 2009.9
In their Amended Answer with Counterclaim10 dated February
27, 2009, the respondents asserted that Tan was incorrectly
impleaded, denying that Tan is involved whatsoever in the
matter at hand, with the latter not being the registered owner
of Lot 1.
Further, the respondents argued that the Sps. Garcia failed to
allege how they acquired the easement of light and view either
by prescription or title. The respondents maintained that the
mere presence of windows on the one-storey house of the Sps.
Garcia in itself does not give rise to an easement by title,
stressing that there was no tenement standing on Lot 1 at the
time of the construction of the one-storey house standing on
the subject property. The respondents also argued that the Sps.
Garcia also failed to acquire an easement by prescription
because they never alleged that they made a formal prohibition
of the construction of a taller structure on Lot 1.
With respect to the Sps. Garcia's claims on easement of lateral
and subjacent support, the respondents maintained that such
claims are baseless because the excavation works were all
made within Lot 1 and were not deep enough to deprive the
Sps. Garcia subjacent and lateral support. Moreover, these
excavations were already finished without causing any
damage to the Sps. Garcia's house.
The trial then ensued, with the Sps. Garcia presenting their
testimonial and documentary evidence.
The Sps. Santos' Demurrer to Evidence (CA-G.R. SP No.
06176)
After the Sps. Garcia rested their case, the Sps. Santos filed a
Motion to Dismiss (By Way of Demurrer to Evidence) 11 which
the RTC denied in its Order12 dated April 28, 2011.
The Sps. Santos then assailed the RTC's denial of their
demurrer to evidence by filing a petition for certiorari13 under
Rule 65 of the Rules of Court before the CA. The petition was
raffled to the Twentieth Division and was docketed as CA-
G.R. SP No. 06176.
In its Decision14 dated May 20, 2013, the CA, Twentieth
Division denied the certiorari petition of the Sps. Santos for
failing to prove that the RTC committed grave abuse of
discretion in denying the respondents' demurrer to evidence.
The respondents filed a Motion for Reconsideration15 dated
June 17, 2013, which was denied by the CA, Special Former
Twentieth Division in its Resolution16 dated February 22,
2016. On March 31, 2016, the Decision dated May 20, 2013
rendered by the CA, Twentieth Division became final and
executory.17
Afterwards, the trial ensued before the RTC, with the Sps.
Santos presenting their evidence.
The Ruling of the RTC
In its Decision18 dated May 28, 2015, the RTC ruled in favor
of the Sps. Santos and dismissed the Complaint. The
dispositive portion of the aforesaid Decision reads:cralawred
WHEREFORE, EVERYTHING CONSIDERED, the
herein complaint is hereby DISMISSED, the counterclaims
are likewise dismissed.
Costs de oficio.
SO ORDERED.19
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In sum, the RTC held that the Sps. Garcia never acquired any
easement of light and view either by title or by prescription.
Hence, the Sps. Garcia appealed the RTC's Decision before
the CA, Special 18th Division.20 The appeal was docketed as
CA-G.R. CEB-CV No. 05701.
The Ruling of the CA, Special 18th Division
In its assailed Decision, the CA, Special 18th Division denied
the appeal for lack of merit, the dispositive portion of which
reads:cralawred
WHEREFORE, the appeal is DENIED. The 28 May
2015 Decision of the Regional Trial Court of Iloilo City,
Branch 31 in Civil Case No. 09-30023 is AFFIRMED.
SO ORDERED.21
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Agreeing in toto with the RTC, the CA held that the Sps.
Garcia never acquired an easement of light and view under the
pertinent provisions of the Civil Code.
The Sps. Garcia filed a Motion for Reconsideration22 dated
August 4, 2016, which was denied by the CA, Former Special
18th Division in its assailed Resolution.
Hence, the instant Petition for Review on Certiorari filed by
the Sps. Garcia under Rule 45 of the Rules of Court.
The respondents filed their Comment (To the Petition dated
October 28, 2016)23 dated June 20, 2017, to which the Sps.
Garcia responded with their Reply24 dated November 9, 2017.
Issues
Stripped to its core, the instant Petition presents two main
issues for the Court's disposition: (1) whether, in view of the
CA, Twentieth Division's final and executory Decision dated
May 20, 2013 in CA-G.R. SP No. 06176, the doctrine of the
law of the case finds application; and (2) whether the Sps.
Garcia have acquired an easement of light and view with
respect to Lot 1 owned by the Sps. Santos.
The Court's Ruling
In deciding the merits of the instant Petition, the Court shall
resolve the issues in seriatim.
I. The doctrine of the law of the case not applicable in
the instant case
In the instant Petition, the Sps. Garcia make the argument that
the doctrine of the law of the case applies in the instant case,
considering that the CA, Twentieth Division's final and
executory Decision dated May 20, 2013 in CA-G.R. SP No.
06176 expressly and categorically found that ''[t]here is an
acquired easement of light, air and view in favor of [the Sps.
Garcia]"25 based on Article 624 of the Civil Code26 and the
decided cases of Amor v. Florentino27 and Gargantos v. Tan
Yanon,28 and that "the contention of [the respondents] that the
mere opening of windows and doors does not constitute an
easement is therefore refuted."29
The argument is unmeritorious.
The doctrine of the law of the case states that whatever has
once been 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.30
Citing Mercury Group of Co., Inc. v. Home Dev't Mutual
Fund,31 the CA, Special 18th Division was correct in
explaining that the aforesaid doctrine applies only when there
has been a prior decision on the merits:cralawred
"Law of the case" has been defined as the opinion delivered on
a former appeal. . . . It is a rule of general application that
the decision of an appellate court in a case is the law to the
case on the points presented throughout all the subsequent
proceedings in the case in both the trial and appellate courts
and no question necessarily involved and decided on that
appeal will be considered on a second appeal or writ of error
in the same case, provided the facts and issues are
substantially the same as those on which the first question
rested and, according to some authorities, provided the
decision is on the merits. x x x32
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The CA, Twentieth Division's final and executory Decision
dated May 20, 2013 relied upon by the Sps. Garcia was not a
final and executory decision on the merits of the case as it
dealt solely on the issue of whether the RTC committed grave
abuse of discretion in denying the respondents' demurrer to
evidence.
In fact, the CA, Twentieth Division was unequivocal in
explaining that it discussed "the issue on easement of light, air
and view not so much to address the merit of the petition but
to illustrate the extent by which [the Sps. Garcia] have
relentlessly pursued their claim."33
Hence, the first issue posed by the Sps. Garcia is denied.
II. The easement of light and view imposed on Lot 1
acquired by the Sps. Garcia
Having disposed of the first issue, the Court shall now decide
whether the Sps. Garcia have indeed acquired an easement of
light and view, imposing a burden on Lot 1 not to obstruct the
subject property's free access to light and view. The Court
notes that the issues surrounding the alleged easement of
lateral and subjacent support were no longer pursued by the
Sps. Garcia in the instant Petition. Hence, the Court's Decision
shall focus exclusively on the easement of light and view
purportedly acquired by the Sps. Garcia as against the Sps.
Santos' Lot 1.
Considering that the jurisprudence on the concept of
easements of light and view is not in abundance, this is an
opportune time for the Court to explain clearly and resolutely
the rules regarding the acquisition of an easement of light and
view vis-a-vis several parcels of land owned by separate
owners that were previously owned by a single owner, and the
distances that must be observed in relation thereto.
The Concept of Easements and the Easement of Light and
View
According to Article 613 of the Civil Code, 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.
As defined by jurisprudence, an easement is "a real right on
another's property, corporeal and immovable, whereby the
owner of the latter must refrain from doing or allowing
somebody else to do or something to be done on his property,
for the benefit of another person or tenement. Easements are
established either by law or by the will of the owner. The
former are called legal, and the latter, voluntary
easements."34 An easement has been described as "a real right
which burdens a thing with a prestation consisting of
determinate servitudes for the exclusive enjoyment of a person
who is not its owner or of a tenement belonging to another."35
Legal easements are ones imposed by law, and which have,
for their object, either public use or interest of private
persons,36 as opposed to voluntary easements that are
established by the agreements of the parties. The different
legal easements are: (a) easement relating to waters; (b) right
of way; (c) party wall; (d) light and view; (e) drainage; (f)
intermediate distances; (g) easement against nuisance; and (h)
lateral and subjacent support.37
The legal easement called easement of light and view refers to
an easement whereby the dominant estate enjoys the right to
have free access to light, a little air, and a view overlooking
the adjoining estate, i.e., the servient estate.38
The easement of light and view has two components. The
easement of light or jus luminum has the purpose of admitting
light and a little air, as in the case of small windows, not more
than 30 centimeters square, at the height of the ceiling joists or
immediately under the ceiling.39 On the other hand, the
easement of view or servidumbre prospectus40 has the
principal purpose of affording view, as in the case of full or
regular windows overlooking the adjoining estate.41
Explained otherwise, the easement of light is the right to make
openings under certain conditions in order to receive light
from another's tenement while the easement of view is the
right to make openings or windows, to enjoy the view through
the estate of another and the power to prevent all constructions
or works which would obstruct such view or make the same
difficult.42 The easement of view is broader than the easement
of light because the latter is always included in the former.43
As held by jurisprudence, the easement of light and view is
intrinsically intertwined with the easement of the servient
estate not to build higher or altius non tollendi. These two
necessarily go together "because an easement of light and
view requires that the owner of the servient estate shall not
build to a height that will obstruct the window."44
In the instant case, the Sps. Garcia assert that since they have
acquired by title an easement of light and view, the owner of
the adjacent servient estate, i.e., the Sps. Santos, is proscribed
from building a structure that obstructs the window of their
one-storey house.
Classification of Easements as Positive and Negative
Easements
Article 616 of the Civil Code states that easements may be
classified into positive and negative easements. A positive
easement is one which imposes upon the owner of the servient
estate the obligation of allowing something to be done or of
doing it himself. On the other hand, a negative easement is
that which prohibits the owner of the servient estate from
doing something which he could lawfully do if the easement
did not exist.
What is the significance of determining whether an easement
is positive or negative? Such determination is consequential in
determining how an easement is acquired.
According to Article 621 of the Civil Code, in order to acquire
easements by prescription in positive easements, the
prescriptive period shall commence from the day on which the
owner of the dominant estate, or the person who may have
made use of the easement, commenced to exercise it upon the
servient estate.
With respect to negative easements, the prescriptive period
shall commence from the day on which the owner of the
dominant estate forbade, by an instrument acknowledged
before a notary public, the owner of the servient estate, from
executing an act which would be lawful without the easement.
Easement of Light and View as a Positive and Negative
Easement
How then is an easement of light and view classified? Is it a
positive or a negative easement?
The answer is it may be both; an easement of light and view
may either be positive or negative.
As a general rule, an easement of light and view is a positive
one if the window or opening is situated in a party wall, while
it is a negative one if the window or opening is thru one's
own wall, i.e., thru a wall of the dominant estate.45 However,
"[e]ven if the window is on one's own wall, still the easement
would be positive if the window is on a balcony or projection
extending over into the adjoining land."46
In the instant case, it is not disputed that the windows and
other openings, which are allegedly now prevented from
receiving light and view due to the structure built by the Sps.
Santos on Lot 1, are made in the wall of Sps. Garcia's one-
storey-house. There is no party wall alleged to be co-owned by
the parties.
In the very early case of Cortes v. Yu-Tibo,47 the Court held
that the easement of light and view in the case of windows
opened in one's own wall is negative. As such easement is a
negative one, it cannot be acquired by prescription except
where sufficient time of possession has elapsed after the
owner of the dominant estate, by a formal act, has prohibited
the owner of the servient estate from doing something which
would be lawful but for the easement.48
The phrase "formal act" would require not merely any writing,
but one executed in due form and/or with solemnity.49 This is
expressly stated in Article 668 of the Civil Code which states
that the period of prescription for the acquisition of an
easement of light and view shall be counted: (1) from the time
of the opening of the window, if it is through a party wall; or
(2) from the time of the formal prohibition upon the
proprietor of the adjoining land or tenement, if the
window is through a wall on the dominant estate.
It is from these legal premises that the RTC and CA, Special
18th Division based their holdings that the Sps. Garcia "never
acquired an easement of light and view under Article 668 of
the Civil Code for failure to serve a notarial prohibition."50 It
is not disputed that the Sps. Garcia never sent the Sps. Santos
any formal notice or notarial prohibition enjoining the latter
from constructing any building of higher height on Lot 1.
Hence, the RTC and CA, Special 18th Division made the
conclusion that the Sps. Garcia failed to acquire an easement
of light and view in relation to the adjacent Lot 1.
Nevertheless, the Court finds that the aforesaid holding of the
RTC and CA, Special 18th Division is incorrect in view
of Article 624 of the Civil Code.
Article 624 - The Existence of an Apparent Sign of Easement
between Two Estates formerly owned by a Single Owner
considered a Title to Easement of Light and View
While it is a general rule that a window or opening situated on
the wall of the dominant estate involves a negative easement,
and, thus, may only be acquired by prescription, tacked from
the time of the formal prohibition upon the proprietor of the
servient estate, it is not true that all windows or openings
situated on the wall of the dominant estate may only be
acquired through prescription.
Aside from prescription, easements may likewise be acquired
through title.51 The term "title" does not necessarily mean a
document. Instead, it refers to a juridical act or law sufficient
to create the encumbrance.52 One such legal proviso which
grants title to an easement is found in Article 624 of the Civil
Code.
Article 624 of the Civil Code reads:cralawred
x x x. The existence of an apparent sign of easement between
two estates, established or maintained by the owner of both,
shall be considered, should either of them be alienated, as a
title in order that the easement may continue actively and
passively, unless, at the time the ownership of the two estates
is divided, the contrary should be provided in the title of
conveyance of either of them, or the sign aforesaid should be
removed before the execution of the deed. This provision shall
also apply in case of the division of a thing owned in common
by two or more persons.
The aforesaid article is based on Article 541 of the Spanish
Civil Code, which reads:cralawred
x x x. The existence of an apparent sign of an easement
between two estates established by the owner of both shall be
considered, should one of them be alienated, as a title for the
active and passive continuation of the easement, unless, at the
time of the division of the ownership of the two properties, the
contrary should be expressed in the deed of conveyance of
either of them, or the sign is obliterated before the execution
of the instrument.
The mode of acquiring an easement under Article 624 is a
"legal presumption or apparent sign."53 Article 624 finds
application in situations wherein two or more estates were
previously owned by a singular owner, or even a single estate
but with two or more portions being owned by a singular
owner.54 Originally, there is no true easement that exists as
there is only one owner. Hence, at the outset, no other owner
is imposed with a burden.55 Subsequently, one estate or a
portion of the estate is alienated in favor of another person,
wherein, in that estate or portion of the estate, an apparent
visible sign of an easement exists. According to Article 624,
there arises a title to an easement of light and view, even in
the absence of any formal act undertaken by the owner of
the dominant estate, if this apparent visible sign, such as
the existence of a door and windows, continues to remain
and subsist, unless, at the time the ownership of the two
estates is divided, ( 1) the contrary should be provided in the
title of conveyance of either of them, or (2) the sign aforesaid
should be removed before the execution of the deed..
This is precisely the situation that has occurred in the instant
case. Prior to the purchase of the subject property by the Sps.
Garcia in 1998, the subject property and its adjoining lot, i.e.,
Lot 1, were both owned by singular owners, i.e., the Sps.
Santos. On the subject property, a one-storey house laden with
several windows and openings was built and the windows and
openings remained open. Then on October 1998, the subject
property, together with the one-storey structure, was alienated
in favor of the Sps. Garcia, while the Sps. Santos retained the
adjoining Lot 1.
Jurisprudence has recognized that Article 624 is an exception
carved out by the Civil Code that must be taken out of the
coverage of the general rule that an easement of light and view
in the case of windows opened in one's own wall is a negative
easement that may only be acquired by prescription, tacked
from a formal prohibition relayed to the owner of the servient
estate.
As explained in Amor v. Florentino, the very decision
in Cortes v. YuTibo, while holding that the easement of light
and view in situations involving openings situated on the wall
of the dominant estate is a negative easement that may only be
acquired by prescription tacked from formal prohibition,
"distinguishes that case from the situation foreseen in
article 541 [now Article 624 of the Civil Code]."56
In Cortes v. Yu-Tibo, there were two different owners of two
separate houses from the beginning, which is a situation
different from that presented under Article 624 where there is
only one original owner of the two structures. Cortes v. Yu-
Tibo itself explicitly differentiates the situation presented
therein and the special situation contemplated under then
Article 541 of the Spanish Civil Code, which is now Article
624 of the Civil Code, wherein no formal act is needed to
acquire easement of light and view:cralawred
x x x It is true that the supreme court of Spain, in its decisions
of February 7 and May 5, 1896, has classified as positive
easements of lights which were the object of the suits in which
these decisions were rendered in cassation, and from these it
might be believed at first glance[,] that the former holdings of
the supreme court upon this subject had been overruled. But
this is not so, as a matter of fact, inasmuch as there is no
conflict between these decisions and the former decisions
above cited.
In the first of the suits referred to, the question turned
upon two houses which had formerly belonged to the same
owner, who established a service of light on one of them
for the benefit of the other. These properties were
subsequently conveyed to two different persons, but at the
time of the separation of the property nothing was said as to
the discontinuance of the easement, nor were the windows
which constituted the visible sign thereof removed. The new
owner of the house subject to the easement endeavored to free
it from the incumbrance, notwithstanding the fact that the
easement had been in existence for thirty-five years, and
alleged that the owner of the dominant estate had not
performed any act of opposition which might serve as a
starting point for the acquisition of a prescriptive title. The
supreme court, in deciding this case, on the 7th of February,
1896, held that the easement in this particular case was
positive, because it consisted in the active enjoyment of the
light. This doctrine is doubtless based upon article 541 of
the Code, which is of the following tenor: "The existence of
apparent sign of an easement between two tenements,
established by the owner of both of them, shall be considered,
should one be sold, as a title for the active and passive
continuance of the easement, unless, at the time of the division
of the ownership of both tenements, the contrary should be
expressed in the deed of conveyance of either of them, or such
sign is taken away before the execution of such deed."
The word "active" used in the decision quoted in
classifying the particular enjoyment of light referred to
therein, presupposes on the part of the owner of the
dominant estate a right to such enjoyment arising, in the
particular case passed upon by that decision, from the
voluntary act of the original owner of the two houses, by
which he imposed upon one of them an easement for the
benefit of the other. It is well known that easements are
established, among other cases, by the will of the owners.
(Article 536 of the Code) It was an act which was, in fact,
respected and acquiesced in by the new owner of the servient
estate, since he purchased it without making any stipulation
against the easement existing thereon, but, on the contrary,
acquiesced in the continuance of the apparent sign thereof. As
is stated in the decision itself, "It is a principle of law that
upon a division of a tenement among various persons—in the
absence of any mention in the contract of a mode of
enjoyment different from that to which the former owner was
accustomed—such easements as may be necessary for the
continuation of such enjoyment are understood to subsist." It
will be seen, then, that the phrase "active enjoyment" involves
an idea directly opposed to the enjoyment which is the result
of a mere tolerance on the part of the adjacent owner, and
which, as it is not based upon an absolute, enforceable right,
may be considered as of a merely passive
character. Therefore, the decision in question is not in
conflict with the former rulings of the supreme court of
Spain upon the subject, inasmuch as it deals with an
easement of light established by the owner of the servient
estate, and which continued in force after the estate was
sold, in accordance with the special provisions of article
541 of the Civil Code.57
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Application of the Court's Decisions in Amor v. Florentino,
and Gargantos v. Tan Yanon to the Instant Case
The rulings of the Court in Amor v. Florentino and Gargantos
v. Tan Yanon, which involve situations that are almost
completely analogous to the instant case, are enlightening.
In these cases, like the case at hand, several properties were
once owned by a single owner, wherein in one of the
properties, a structure with windows and other openings was
put up. Subsequently, the adjacent property was transferred to
a different owner, wherein a structure was built thereon
obstructing the windows and other openings found on the
adjacent lot.
In Amor v. Florentino, one Maria Florentino (Maria) owned a
house and a camarin or warehouse located in Vigan, Ilocos
Sur. The house had, on the north side, three windows on the
upper storey, and a fourth one on the ground floor. Through
these windows, the house received light and air from the
adjacent lot where the camarin stood.
On September 6, 1885, Maria made a will, devising the house
and the land on which it was situated to Gabriel Florentino,
one of the respondents therein, and to Jose Florentino, father
of the other respondents therein. In said will, the testatrix also
devised the warehouse and the lot where it was situated to
Maria Encarnacion Florentino (Maria Encarnacion). Upon the
death of the testatrix in 1892, nothing was said or done by the
devisees in regard to the windows in question. On July 14,
1911, Maria Encarnacion sold her lot and the warehouse
thereon to the petitioner therein, Severo Amor (Amor). In
January 1938, therein Amor destroyed the old warehouse and
started to build instead a two-storey house.
In deciding the case, the Court first explained that easements
may be acquired either through title or prescription and
enumerated the different acts by which an easement may be
acquired by virtue of title, namely: (1) a deed of recognition
by the owner of the servient estate; (2) a final judgment; and
(3) an apparent sign between two estates, established by
the owner of both, referring to Article 541 (now Article
624) of the Civil Code. Citing decisions of the Supreme
Tribunal of Spain, the Court explained that "under article 541
[now Article 624] of the Civil Code, the visible and
permanent sign of an easement 'is the title that
characterizes its existence' ('es el titulo caracteristico de su
existencia.')"58
Applying Article 541 (now Article 624) of the Civil Code, the
Court held that the existence of the four windows
constructed on the subject house was an apparent sign of
an easement of light and view, the subsistence of which after
the lots were segregated to different owners created an
easement of light and view by title without the need of any
formal notice to the servient estate. The Court explained
that the moment of the constitution of the easement of light
and view, together with that of altius non tollendi, was the
time of the transfer of the other property adjacent to the
lot where the windows were located, which, in that case, was
the death of the original owner of both properties:cralawred
It will thus be seen that under article 541 the existence of the
apparent sign in the instant case, to wit, the four windows
under consideration, had for all legal purposes the same
character and effect as a title of acquisition of the
easement of light and view by the respondents upon the
death of the original owner, Maria Florentino. Upon the
establishment of that easement of light and view, the
concomitant and concurrent easement of altius non
tollendi was also constituted, the heir of the camarin and its
lot, Maria Encarnacion Florentino, not having objected to the
existence of the windows. The theory of article 541, of making
the existence of the apparent sign equivalent to a title, when
nothing to the contrary is said or done by the two owners, is
sound and correct, because as it happens in this case, there is
an implied contract between them that the easements in
question should be constituted.
Analyzing article 541 further, it seems that its wording is not
quite felicitous when it says that the easement should
continue. Sound juridical thinking rejects such an idea
because, properly speaking, the easement is not created till the
division of the property, inasmuch as a predial or real
easement is one of the rights in another's property, or jura in
re aliena and nobody can have an easement over his own
property, nemini sua res servit. In the instant case, therefore,
when the original owner, Maria Florentino, opened the
windows which received light and air from another lot
belonging to her, she was merely exercising her right of
dominion. Consequently, the moment of the constitution of the
easement of light and view, together with that of altius non
tollendi, was the time of the death of the original owner of
both properties. At that point, the requisite that there must be
two proprietors — one of the dominant estate and another of
the servient estate was — fulfilled.59
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Subsequently, in 1960, the Court rendered its Decision in the
case of Gargantos v. Tan Yanon.
In the said case, the late Francisco Sanz (Sanz) was the former
owner of a parcel of land with the buildings and improvements
thereon, situated in the poblacion of Romblon. He subdivided
the lot into three (3) and then sold each portion to different
persons. One portion was purchased by Guillermo Tengtio
who subsequently sold it to Vicente Uy Veza. Another
portion, with the house of strong materials thereon, was sold
in 1927 to Tan Yanon, the respondent therein. This house had
on its northeastern side, doors and windows overlooking the
third portion, which, together with the camarin and small
building thereon, after passing through several hands, was
finally acquired by Juan Gargantos (Gargantos), the petitioner
therein. In 1955, Gargantos tore down the roof of
the camarin and constructed a combined residential house and
warehouse on his lot.
The Court held that Article 538 (now Article 621) of the Civil
Code and the doctrine in Cortes v. Yu-Tibo that the easement
of light and view in situations involving openings situated on
the wall of the dominant estate is a negative easement that
may only be acquired by prescription tacked from formal
prohibition "[is] not applicable herein because the two estates,
that now owned by petitioner, and that owned by respondent,
were formerly owned by just one person, Francisco Sanz."60
The Court further explained that the existence of the doors and
windows on the northeastern side of the house was equivalent
to a title, for the visible and permanent sign of an easement
was the title that characterized its existence:cralawred
x x x It was Sanz who introduced improvements on both
properties. On that portion presently belonging to respondent,
he constructed a house in such a way that the northeastern side
thereof extends to the wall of the camarin on the portion now
belonging to petitioner. On said northeastern side of the house,
there are windows and doors which serve as passages for light
and view. These windows and doors were in existence when
respondent purchased the house and lot from Sanz. The deed
of sale did not provide that the easement of light and view
would not be established. This then is precisely the case
covered by Article 541, O.C.C. (now Article 624, N.C.C.)
which provides that the existence of an apparent sign of
easement between two estates, established by the
proprietor of both, shall be considered, if one of them is
alienated, as a title so that the easement will continue
actively and passively, unless at the time the ownership of
the two estates is divided, the contrary is stated in the deed
of alienation of either of them, or the sign is made to
disappear before the instrument is executed. The existence
of the doors and windows on the northeastern side of the
aforementioned house, is equivalent to a title, for the
visible and permanent sign of an easement is the title that
characterizes its existence (Amor vs. Florentino, 74 Phil.,
403). It should be noted, however, that while the law declares
that the easement is to "continue" the easement actually arises
for the first time only upon alienation of either estate,
inasmuch as before that time there is no easement to speak of,
there being but one owner of both estates (Article 530, O.C.C.,
now Article 613, N.C.C.).61
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From Amor v. Florentino and Gargantos v. Tan Yanon, read
together with Cortes v. Yu-Tibo, it has been jurisprudentially
established that, in a situation wherein Article 624 of the Civil
Code applies, there arises an easement if an apparent sign of
the existence of an easement, i.e., the existence of windows
and openings on the dominant estate, continues to remain
even after the transfer of the property to the new
owner, unless such apparent sign is removed or if there is
an agreement to the contrary.62
To reiterate, such is exactly the situation attendant in the
instant case. Lot 1 and the subject property were once owned
by one owner, i.e., the Sps. Santos. On the subject property, a
one-storey house with windows and other openings that accept
light and view from Lot 1, which was idle at that time, was
built. Subsequently, in 1998, the subject property was
alienated in favor of the Sps. Garcia. It is undisputed that the
windows and other openings on the one-storey house subsisted
and remained open. It is also not disputed that there was no
agreement made by the parties whatsoever to the effect that
the windows and openings of the Sps. Garcia's house should
be closed or removed.
Hence, in accordance with Article 624 of the Civil Code, from
the time the Sps. Santos transferred the subject property to the
Sps. Garcia, there arose by title an easement of light and view,
placing a burden on the servient estate, i.e., Lot 1, to allow the
Sps. Garcia's residence unobstructed access to light and view,
subject to certain limitations as will be discussed hereunder.
The core of the RTC and CA, Special 18th Division's
Decisions dismissing the Sps. Garcia's Complaint centers on
the argument that the cases of Amor v. Florentino,
and Gargantos v. Tan Yanon are not applicable to the instant
case because in the latter, "the previous owner only made
improvements on the [subject property] of [the Sps. Garcia] at
the time of the transfer of the alleged dominant estate to [the
Sps. Garcia.] This takes the instant case out of the factual
milieu of Amor and Gargantos."63 According to the CA,
Special 18th Division, "[t]he rulings
in Amor and Gargantos appear to be premised on the fact that
the previous owner made improvements on both properties
prior to the transfer of one of these properties."64
After a close reading of Amor v. Florentino and Gargantos v.
Tan Yanon, the Court holds that the RTC and CA, Special
18th Division were mistaken in not applying the aforesaid
cases to the instant case.
First and foremost, the subject Civil Code provision dealt with
by these two cases, i.e., Article 624 (formerly Article 541) of
the Civil Code, merely states that what is involved in this
particular situation is "an apparent sign of easement between
two estates."65
There is nothing in the aforesaid provision that requires the
presence or establishment of structures or improvements on
both estates at the time the ownership of the two estates is
divided. The conclusion of the CA, Special 18th Division that
Article 624 applies only when the (future) servient estate has
an improvement thereon at the time of the transfer of the
ownership of either or both of the estates finds no textual
support. What the law merely states is that there must be two
estates that were once owned by one owner, regardless of the
existence of improvements in the (future) servient estate. What
law requires is that, at the time the ownership of the estates is
divided, there must be an apparent sign of easement that
exists, such as a window, door, or other opening, in the
dominant estate.
As exhaustively explained by recognized Civil Law
Commentator, former CA Justice Eduardo P. Caguioa, the
existence of an easement of light and view under Article 624
is established as long as (1) there exists an apparent sign of
servitude between two estates; (2) the sign of the easement
must be established by the owner of both tenements; (3) either
or both of the estates are alienated by the owner; and (4) at the
time of the alienation nothing is stated in the document of
alienation contrary to the easement nor is the sign of the
easement removed before the execution of the
document:cralawred
x x x In this case[,] the owner of two estates has established an
apparent sign of the easement between two estates. It is
apparent inasmuch as since it is the owner establishing it in his
own property in favor of an estate belonging to himself there
is no easement but merely an exercise of the right of
ownership. Should, however, one or both of the estates be
alienated or after partition in case of a property owned in
common, then that sign established by the owner will
constitute a title for the establishment of the easement, both
actively or passively, except in case the contrary should be
provided in the document of conveyance of either estate or in
case before the alienation is made the sign is removed by the
owner. Hence, in order that this article will apply[,] the
following are the requisites: (1) That there exist an apparent
sign of servitude between two estates; (2) That the sign of
the easement be established by the owner of both
tenements because the article will not apply when the
easement is established by a person different from the
owner; (3) That either or both of the estates are alienated
by the owner; and (4) That at the time of the alienation
nothing is stated in the document of alienation contrary to
the easement nor is the sign of the easement removed
before the execution of the document.66
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It is evident that the prior existence of another structure or
building in the other estate, in addition to the apparent sign of
easement existing on the dominant estate, is not a requirement
for the application of Article 624. What is clear from the
foregoing is that the hallmark of an easement of light and view
established by an apparent sign of easement under Article 624
is the existence of an apparent sign of servitude between two
estates, such as a window, door, or any other opening, that was
established by the common owner of both estates prior to the
division of ownership of these estates.
Second, upon close reading of Amor v.
Florentino and Gargantos v. Tan Yanon, there is no holding
whatsoever by the Court that the application of Article 624
(formerly Article 541) is restricted to situations wherein the
servient estate previously contained improvements or
structures. The RTC and CA, Special 18th Division failed to
explain the rationale for making a differentiation as to
situations wherein the servient estate was idle at the time of
the division of the ownership of the two estates. Instead, the
RTC and CA, Special 18th Division merely nitpicked this
singular factual difference and concluded, without sufficient
explanation, that the factual milieu of the instant case differs
from those of Amor v. Florentino and Gargantos v. Tan
Yanon.
It must be stressed that the presence of a minor factual
difference does not preclude the application of judicial
precedent. It must be explained how the factual difference in a
case makes the doctrine established in the decided case
inapplicable therein. In the instant case, the cases of Amor v.
Florentino and Gargantos v. Tan Yanon clearly and plainly
explain that there arises an easement if an apparent sign of the
existence of an easement, i.e., the existence of windows and
openings on the dominant estate, continues to remain even
after the transfer of the property to the new owner, without
making any holding whatsoever that there should have been a
prior structure that was put up on the servient estate. The fact
that the existence of windows, doors, and other openings on
the dominant estate is the apparent sign of an existing
easement is not hinged whatsoever on the presence of
structures on the adjacent servient estate. In short, the fact in
the aforesaid cases that the servient estates therein had existing
structures prior to the division of ownership is not a significant
fact that is determinative of the holdings of the Court.
In fact, the Court notes that in Amor v. Florentino, the
improvement originally constructed on the servient estate, i.e.,
the warehouse, was actually totally demolished and that, after
the transfer of ownership of the dominant estate, a new two-
storey house was thereafter built in its stead. This does not
differ substantially from a situation wherein new constructions
are done in the servient estate that was previously completely
empty.
Further, in Gargantos v. Tan Yanon, the Court, in applying
Article 624 of the Civil Code, held that "[b]y reason of this
easement, petitioner cannot construct on his land any
building."67 The Court did not say that the petitioner therein
was barred only from adding or increasing the height of
existing structures or improvements.
Hence, considering the foregoing discussion, the RTC and
CA, Special 18th Division committed an error in holding that
the Sps. Garcia failed to acquire an easement of light and view
in the instant case. By virtue of Article 624 of the Civil Code
and applicable jurisprudence, the Court holds that the Sps.
Garcia have acquired an easement of light and view by title
despite the lack of any formal notice or prohibition made upon
the owner of the servient estate.
The Three-Meter Distance Rule
Now that the existence of an easement of light and view has
been established in favor of the Sps. Garcia, the Court shall
now delve on whether to grant Sps. Garcia's prayer that
"respondents should therefore remove from Lot 1 their
building or structure which blocks or impedes petitioners' air,
light and view."68
The Court answers the question with a qualified yes.
Based on Articles 66969 and 670 of the Civil Code, there are
two kinds of windows: (1) regular or full70 or direct
view71 windows, and (2) restricted,72 or oblique or side
view73 windows. As for openings, they may be direct views —
those openings which are made on a wall parallel or almost
parallel to the line that divides the estates, in such a way that
the neighboring tenement can be seen without putting out or
turning the head, or oblique views — those openings in a wall
which form an angle to the boundary line, and therefore of
necessity requires in order to see the neighboring tenement to
thrust the head out of the opening and look to the right or
left.74 In the case at hand, the openings found on the property
of the Sps. Garcia offer a direct view of the property of the
respondents Sps. Santos.
In relation to direct view windows or openings, the Civil Code
provides two distance rules or distances that must be observed
before they can be made or established.
Firstly, there is the two-meter distance rule under Article 670
of the Civil Code, which provides: "[n]o windows, apertures,
balconies, or other similar projections which afford a direct
view upon or towards an adjoining land or tenement can be
made, without leaving a distance of two meters between the
wall in which they are made and such contiguous property."
This Article is to be read in conjunction with Article 671 as
the latter provides the mechanism by which the two-meter
distance is to be measured, to wit: "[t]he distances x x x shall
be measured in cases of direct views from the outer line of the
wall when the openings do not project, from the outer line of
the latter when they do, and in cases of oblique views from the
dividing line between the two properties."
Hence, under Article 670, which is the general rule, when a
window or any similar opening affords a direct view of an
adjoining land, the distance between the wall in which such
opening is made and the border of the adjoining land should
be at least two meters.
Similarly, Republic Act No. 6541 as revised by Presidential
Decree No. 1096 or the National Building Code of the
Philippines provides the same two-meter distance requirement
pursuant to Section 708(a), which provides that: "[t]he
dwelling shall occupy not more than ninety percent of a comer
lot and eighty percent of an inside lot, and subject to the
provisions on Easement of Light and View of the Civil Code
of the Philippines, shall be at least 2 meters from the property
line."
Secondly, the three-meter distance rule is embodied in Article
673 of the Civil Code, which states that whenever by any title
a right has been acquired to have direct views, balconies or
belvederes overlooking an adjoining property, the owner of
the servient estate cannot build thereon at less than a
distance of three meters, not two meters, from the property
line, to be measured in the manner provided in Article 671.
Article 673 of the Civil Code reads:cralawred
ART. 673. Whenever by any title a right has been acquired to
have direct views, balconies or belvederes overlooking an
adjoining property, the owner of the servient estate cannot
build thereon at less than a distance of three meters to be
measured in the manner provided in Article 671. Any
stipulation permitting distances less than those prescribed in
Article 670 is void.
Article 673 is the exception to the general rule. In a situation
wherein an easement is established or recognized by title or
prescription, affording the dominant estate the right to have a
direct view overlooking the adjoining property, i.e., the
servient estate, which is the exact situation in the instant case,
the two-meter requirement under Article 670 is not applicable.
Instead, Article 673 is the applicable rule as it contemplates
the exact circumstance attendant in the instant case, i.e.,
wherein an easement of view is created by virtue of law.
This provision has already been previously applied to
easements of light and view acquired under Article 624.
In Gargantos v. Tan Yanon, the Court held that since
"[therein] respondent Tan Yanon's property has an easement
of light and view against petitioner's property[, b]y reason of
this easement [under Article 624], [therein Gargantos] cannot
construct on his land any building unless he erects it at a
distance of not less than three meters from the boundary
line separating the two estates."75
To reiterate, as Article 673 states a special rule covering a
situation wherein a dominant estate has acquired a right "to
have direct views, balconies or belvederes, overlooking the
adjoining property, the owner of the servient estate may not
build on his own property except at a distance of at least three
meters from the boundary line,"76 the two-meter distance as
provided in Article 670 is not enough. The distance between
the structures erected on the servient estate and the boundary
line of the adjoining estate must be at least three meters.
In the instant case, the records show that Roberto Planton
Baradas (Baradas), the construction project engineer who
supervised the construction of the Sps. Santos' house located
on Lot 1, testified that "[t]here is a distance of two
meters between [the Sps. Garcia's] fence and the wall of [the
respondents] spouses Santos."77 Simply stated, the distance
between the structure erected by the Sps. Santos on Lot 1 and
the boundary line is only two meters, which is less than the
three-meter distance required under Article 673.
Therefore, considering that the Sps. Garcia have acquired by
title an easement of light and view in accordance with Article
624 of the Civil Code, the Sps. Santos should necessarily
demolish or renovate portions of their residential building
so that the three-meter distance rule as mandated under
Article 673 of the Civil Code is observed.
WHEREFORE, the instant appeal is hereby GRANTED.
The Decision dated June 30, 2016 and Resolution dated
October 5, 2016 of the Court of Appeals in CA-G.R. CEB-CV
No. 05701 are hereby REVERSED AND SET ASIDE.
Necessarily, the Decision dated May 28, 2015 rendered by the
Regional Trial Court of Iloilo City, Branch 31 is
likewise REVERSED AND SET ASIDE.
The Court declares the EXISTENCE OF AN EASEMENT
OF LIGHT AND VIEW in favor of the petitioners Sps. Tedy
and Pilar Garcia. The respondents Sps. Loreta and Winston
Santos are hereby ordered to REMOVE from Lot 1 such
portions of their building or structure in order to comply with
the three-meter rule as mandated under Article 673 of the
Civil Code.
No pronouncement as to costs.
SO ORDERED.