Republic of the Philippines

NATIONAL CAPITAL JUDICIAL REGION

REGIONAL TRIAL COURT
BRANCH 256, LAS PINAS CITY
Spouses JunathanBahaghari and
DunabelleBahaghari.

Plaintiffs,

Civil Case No.________

Versus

Mary Mae Bahaghari

And Heirs of Ronald Bahaghari

Defendants,
x------------------------------------------------------x
MEMORANDUM
Defendant, through counsel, respectfully submits this
memorandum to wit:

Statement of the Case

This is a prayer for the enforcement of Right of Way filed by the
plaintiffs against the defendant, claiming that the latter encroached upon
the agreed two-meter right of way in favor of the former when they
constructed an apartment in Lot 123-F covered by TCT 114447.
Defendant, on the other hand, denies liability averring that plaintiff did
not make any objection or protest either when construction of the
apartment began, or even after construction was completed. It was only
after more than fifteen (15) years after the construction of the apartment
was completed that the plaintiffs opted to file the action.
Statement of Facts
1. Defendants are the heirs of RunaldBahaghari who was the
brother of the plaintiff, JunathanBahaghari.
2. RunaldBahagharis estate consisted of the subject property
in Jacks compound, among others.
3. Said property identified as Lot 123-F was given to
RunaldBahaghari by his mother Lucia Angel Vda. Bahaghari,
evidenced by TCT 114447.
4. Plaintiffs, in the same manner, were given a parcel of land by
Lucia Angel Vda. Bahaghari, said lot identified as Lot 123-E.
5. To get to the land owned by the plaintiffs, it is necessary to
pass through the lot owned by defendant.
6. Due to the foregoing, a two-meter right of way was granted
in favor of the plaintiffs, annotated on on the defendants
TCT 114447, which reads:

Entry No. 45754/T-S-39672 RIGHT OF WAY The parcel

of land described in this certificate of title is subject to a right
of way of two (2) meters wide, extending upon and along the
southern side thereof.
7. RunaldBahaghari

and

herein

defendant,

Mary

Mae

Bahaghari constructed an apartment on the land they

acquired from Lucia Angel Vda. Bahaghari.
8. Plaintiffs argue that the construction of said apartment
encroached upon the agreed right of way by one meter.
9. While it is admitted by the defendant that a deed of partition
and a grant of right of way is existent, defendant argues that
the construction of such apartment was with knowledge and
without objection from the plaintiff.
10.

More than fifteen years before the structure was built on

the

lot,

plaintiff,

JunathanBahaghari,

helped

out

the

deceased husband of defendant during the construction of

the apartment. . Plaintiff made suggestions on where to get
good materials at a low price and on the design of the
apartment. He was with RunaldBahaghari practically through
the entire time, the latters apartment was being constructed.
11.

Defendant and plaintiffs maintained a good relationship

until the death of the defendants husband. Plaintiff started

making demands that defendant leave the property left by
her husband and claims ownership over said parcel of land.
12.

Defendant refused to give in to the plaintiffs demands

and so they threatened to file an action against her.

13.

Due to defendants continued refusal to accede to

plaintiffs demands, they filed this present action against the

former.
Issue
1. WHETHER OR NOT PLAINTIFF HAS A CAUSE OF ACTION
AGAINST THE DEFENDANT, IN CONSIDERATION, OF THEIR
LONG INACTION ON THE MATTERS HEREIN STATED.
Arguments
1. There has been no payment of indemnity for the grant of
easement of right of way by the plaintiff to the defendant thus
the right of way in favor of the former has not been
established.
1.1 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.
1.2

Dichoso, Jr. vs Marcos (G.R. No. 180282, April 11, 2011)

laid down the requisites that should be met in order to be
entitled to an easement of right of way:
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.

2. Assuming that a right of way has been established in favor of

the plaintiff, they are estopped from enforcing such because
of their inaction for a considerably long period of time (fifteen
(15) years) to enforce such.
2.1Estate of the Late Encarnacion Vda. dePanlilio v.
Dizon explains the concept of laches in this wise:
According to settled jurisprudence, laches means
the failure or neglect, for an unreasonable and
unexplained length of time, to do that whichby the
exercise of due diligencecould or should have been
done earlier. Verily, laches serves to deprive a party
guilty of it of any judicial remedies. Its elements are: (1)
conduct on the part of the defendant, or of one under
whom the defendant claims, giving rise to the situation
which the complaint seeks a remedy; (2) delay in
asserting the complainants rights, the complainant having
had knowledge or notice of the defendants conduct as
having been afforded an opportunity to institute a suit; (3)
lack of knowledge or notice on the part of the defendant
that the complainant would assert the right in which the

defendant bases the suit; and (4) injury or prejudice to the

defendant in the event relief is accorded to the
complainant, or the suit is not held barred.

PRAYER
WHEREFORE, in view of the foregoing, it is respectfully prayed
that the Honorable Court dismiss the action filed against the
defendant.
Other just and equitable reliefs are likewise prayed for.
Muntinlupa City, 13 January, 2015

GUMAPAC AND HOCSON LAW OFFICES

Counsel for the Defendant
12 floor, Kingston Tower, Madrigal Ave.
Alabang, Muntinlupa City
th

MA. ANGELICA J. GUMAPAC

PTR No. 7014656; 2-08-12; MUNTINLUPA CITY
IBP No. 603666; 2-09-12; MUNTINLUPA CITY
Attorneys Roll No. 58403
JOSEPH ERWIN HOCSON
PTR No. 7013456; 2-08-12; MUNTINLUPA CITY
IBP No. 7863666; 2-09-12;MUNTINLUPA CITY
Attorneys Roll No. 57890