SPS. MANUEL AND VICTORIA G.R. No.

185240
SALIMBANGON,
Petitioners, Present:
- versus SPS. SANTOS AND ERLINDA TAN,
January 20, 2010
DECISION

Lots A, B, and C were adjacent to a city street. But Lots D and E

were not, they being interior lots. To give these interior lots access to
the street, the heirs established in their extrajudicial partition an
easement of right of way consisting of a 3-meter wide alley between
Lots D and E that continued on between Lots A and B and on to the
street. The partition that embodied this easement of right of way was
annotated on the individual titles issued to the heirs.

ABAD, J.:
This case is about the admissibility of testimony that tends to
modify a written agreement among the parties and the extinction of
the easement of right of way upon consolidation in one person of the
ownership of the dominant and the servient estates.
The Facts and the Case
Guillermo Ceniza died intestate on July 11, 1951, leaving a parcel of
land at Poblacion, Mandaue City. Twenty years later on July 17,
1973 his children Benedicta, Guillermo, Jr., Victoria, Eduardo, and
Carlos executed an extrajudicial declaration of heirs and partition,
adjudicating and dividing the land among themselves as follows:
1. To Benedicta T. Cabahug, Lot A subject to a perpetual and
grat[u]itous road right of way 1.50 m. wide along its NW. boundary in
favor of Lots B, E, and D, of the subdivision;
2. To Eduardo Ceniza, Lot B subject to a perpetual and grat[u]itous
road right of way 1.50 m. wide along its SW. boundary in favor of
Lots A, D & E of the subdivision;
3. To Carlos Ceniza, Lot C;
4. To Guillermo Ceniza Jr., Lot D subject to a perpetual and
grat[u]itous road right of way 1.50 m. wide along its NE. boundary in
favor of Lot B and E of the subdivision; and
5. To Victoria Ceniza, Lot E, subject to a perpetual and grat[u]itous
road right of way 1.50 m. wide along its SW. boundary in favor of Lot
D of the subdivision.[1]

Roughly, the lots including the easement of right of way would take
the following configurations,[2] not drawn here to accurate size and
proportion but illustrative of their relative locations:
But, realizing that the partition resulted in an unequal division of the
property, the heirs modified their agreement by eliminating the
easement of right of way along Lots A, D, and E, and in its place,
imposed a 3-meter wide alley, an easement of right of way, that ran
exclusively along the southwest boundary of Lot B from Lots D and E
to the street.[3]Thus:
Victoria (now petitioner Victoria Salimbangon) later swapped lots with
Benedicta with the result that Victoria became the owner of Lot A,
one of the three lots adjacent to the city street. Victoria and her
husband (the Salimbangons) constructed a residential house on this
lot and built two garages on it. One garage abutted the street while
the other, located in the interior of Lot A, used the alley or easement
of right of way existing on Lot B to get to the street. Victoria had this
alley cemented and gated.
Subsequently, however, respondent spouses Santos and Erlinda Tan
(the Tans) bought Lots B, C, D, and E from all their owners. The Tans
built improvements on Lot B that spilled into the easement
area. They also closed the gate that the Salimbangons built. Unable
to use the old right of way, the Salimbangons lodged a complaint with
the City Engineer of Mandaue against the Tans. For their part, the
Tans filed an action with the Regional Trial Court (RTC) of Mandaue
against the Salimbangons in Civil Case MAN-3223 for the
extinguishment of the easement on Lot B and damages with

application for preliminary injunction.[4] The Salimbangons filed their

answer with counterclaims.
After hearing or on February 9, 2001 the RTC rendered judgment,
upholding the Salimbangons easement of right of way over the alley
on Lot B, the lot that belonged to the Tans. The court pointed out that
the easement in this case was established by agreement of the
parties for the benefit of Lots A, D, and E. Consequently, only by
mutual agreement of the parties could such easement be
extinguished. The RTC declined, however, to award damages to the
Salimbangons.
Both parties appealed to the Court of Appeals (CA) in CA-G.R. CV
73468. On July 27, 2007 the CA[5] reversed the RTC decision,
extinguished the easement of right of way established on the alley in
Lot B of the Tans, and denied the Salimbangons claim for
damages. The court ruled that based on the testimony of one of the
previous owners, Eduardo Ceniza, the true intent of the parties was
to establish that easement of right of way for the benefit of the
interior lots, namely, Lots D and E. Consequently, when ownership of
Lots B, D, and E was consolidated into the Tans, the easement
ceased to have any purpose and became extinct. The Salimbangons
filed a motion for reconsideration but the CA denied the same in its
resolution of October 14, 2008. This prompted them to file the
present petition.
Questions Presented

One. The Salimbangons point out that the CA ought to have rejected
Eduardo Cenizas testimony that the heirs had intended to establish
the easement of right of way solely for the benefit of the interior Lots
D and E which had no access to the city street. The partition
agreement also made Lot A, now owned by the Salimbangons, a
beneficiary of that easement. Thus:
2. To Eduardo Ceniza [now the Tans], Lot B subject to a perpetual
and grat[u]itous road right of way 1.50 m. wide along its SW.
boundary in favor of Lots A, D & E of the subdivision;
[6] (Underscoring supplied)
The parol evidence rule, said the Salimbangons, precluded the
parties from introducing testimony that tended to alter or modify what
the parties had agreed on above.
But the exclusionary provision of the parol evidence rule admits of
exceptions. Section 9, Rule 130 of the Revised Rules on Evidence
states:
Sec. 9. Evidence of written agreements. - When the terms of an
agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the
parties and their successors in interest, no evidence of such terms
other than the contents of the written agreement. However, a party
may present evidence to modify, explain or add to the terms of the
written agreement if he puts in issue in his pleading:

Two questions are presented:

1. Whether or not the CA erred in admitting in evidence contrary to
the parol evidence rule Eduardo Cenizas testimony respecting the
true intent of the heirs in establishing the easement of right of way as
against what they stated in their written agreement; and
2. Whether or not the CA erred in ruling that the easement of right of
way established by the partition agreement among the heirs for the
benefit of Lot A has been extinguished.
The Courts Ruling

(a) An intrinsic ambiguity, mistake or imperfection in the written

agreement;
(b) The failure of the written agreement to express the true intent and
agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
The term agreement includes wills. (7a)
Here, the Tans had put in issue the true intent and agreement of the
parties to the partition when they alleged in their complaint that,

contrary to what paragraph 2 quoted above seems to imply, the

easement was actually for the benefit of Lots D and E only. The
complaint thus said:
So that in the same partition instrument, the said heirs voluntarily
agreed to establish the so-called perpetual and gratuitous easement
of road right of way along LOT A, with 1.50 meters wide and along
LOT B, with the same 1.50 meters wide.
Understandably, this servitude voluntarily constituted on LOTS A and
B was had for the benefit and use by the owners of LOTS
D (Guillermo Ceniza, Jr.) and E (defendant Victoria Ceniza
Salimbagon).[7] (Underscoring supplied)
Consequently, with the above averment, the Tans were entitled to
introduce evidence to establish the true intent and agreement of the
parties although this may depart from what the partition agreement
literally provided.
At any rate, as the CA said, the Salimbangons did not object at the
hearing to admission of Eduardo Cenizas testimony even when this
seemed at variance, as far as they were concerned, with the partition
agreement among the heirs. Consequently, the Salimbangons may
also be deemed to have waived their right to now question such
testimony on appeal.
Two. The Salimbangons point out that the partition agreement
among the heirs established in their favor, as owners of Lot A, an
easement of right of way on Lot B from the interior of their lot to the
city street. Since theirs was an easement established by agreement
of the parties, only by mutual agreement could the same be
extinguished.
But, firstly, as Eduardo Ceniza testified, the true agreement of the
heirs was for the establishment of an easement of right of way for the
benefit solely of the lots that did not have direct access to the street,
namely Lots D and E. His testimony made sense.
As originally constituted in that agreement, each of Lots A and B was
to contribute a strip of 1.5 meters between them that when combined

formed a 3-meter wide alley leading from Lots D and E to the

street. To the extent that Lots A and B retained the right to use the
1.5-meter portion that they contributed to the establishment of the
easement, the agreement gave their owners the right to use the
common alley as well. As Eduardo testified, however, the true intent
of the heirs was to give Lots D and E access to the street. Lots A and
B did not need this alley since they were facing the street.
Consequently, when the owner of Lots D and E also became the
owner of Lot B, the easement of right of way on Lot B became extinct
by operation of law.[8] The existence of a dominant estate and a
servient estate is incompatible with the idea that both estates belong
to the same person.
Secondly, there is no question that when the heirs realized that it was
not fair to take strips of 1.5 meters from each of Lots A, D, and E for
the easement of right of way when these lots were already small, the
heirs executed a Cancellation of Annotation of Right of Way, etc. that
cancelled the easement of right of way they earlier established on
Lots A, D, and E and in its place imposed a 3-meter wide easement
of right of way solely on Lot B.
Although the cancellation document did not say so, it was implicit
that the changed location of the easement cancelled not only the 1.5meter strip of easement imposed on Lot A of the Salimbangons but
also their right to use the new 3-meter easement alley that lay
entirely on Lot B. Strictly speaking, if the Salimbangons insist that
their right as dominant estate under the original partition agreement
remains, then that would be partly on a 1.5-meter strip of their own
Lot A and partly on the equivalent 1.5-meter strip on the side of Lot
B, not on the new 3-meter alley established entirely on Lot B.
The point is that, obviously, in establishing the new easement of right
of way, the heirs intended to abandon the old one. Since this 3-meter
alley on Lot B directly connected Lots D and E to the street, it is also
obvious that only the latter lots were its intended beneficiary. And,
with the ownership of Lots B, D, and E now consolidated in a
common owner, namely, the Tans, then the easement of right of way
on Lot B may be said to have been extinguished by operation of law.
[9]

ACCORDINGLY, this Court DENIES the petition and AFFIRMS in all

respects the decision dated July 27, 2007 and resolution dated
October 14, 2008 of the Court of Appeals in CA-G.R. CV 73468.
SO ORDERED.

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 decisions decretal portion states:
WHEREFORE, premises considered, it is hereby ordered that the
legal encumbrance of forty (40) meters for river bank protection
annotated on Petitioners 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 Petitioners 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 courts decision. It
upheld the DENRs 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 courts 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 petitioners motion for
reconsideration.
Petitioner now raises the following issues:
I.
WHETHER OR NOT PETITIONERS 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 PETITIONERS 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 436018and 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 petitioners property covered by
TCT No. 5455 to three meters now is in order.
WHEREFORE, the instant petition is GRANTED. The assailed
Decision dated August 7, 2003 and Resolution dated March 17, 2004
of the Court of Appeals in CA-G.R. CV. No. 74409 are REVERSED,
and the Decision dated December 13, 2001 of the Regional Trial
Court of Cebu City, Branch 12 in SP. Proc. No. 10746-CEB is
REINSTATED.
SO ORDERED.

SPOUSES VICTOR VALDEZ AND JOCELYN

VALDEZ, represented by their Attorney-InFact, VIRGILIO VALDEZ,
Petitioners,
- versus SPOUSES FRANCISCO TABISULA AND
CARIDAD TABISULA,
Respondents.

G.R. No. 175510

DECISION
CARPIO MORALES, J.:
Petitioner-spouses Victor and Jocelyn Valdez purchased via a
January 11, 1993 Deed of Absolute Sale[1] (the deed) from
respondent-spouses Francisco Tabisula and CaridadTabisula 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 P 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:

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 abovedescribed, 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 Damages[3] against
respondents before the Regional Trial Court (RTC) of San
Fernando City, La Union.

xxxx

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 2-meter wide easement and to
remove the concrete wall blocking the same.[4]

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

Respondents, in their Answer with Compulsory Counterclaim (for

damages and attorneys fees),[5] averred that the 2 -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 Engineers Office.[9]
Branch 26 of the RTC of San Fernando dismissed petitioners
complaint
and
granted
respondents
Counterclaim
by
Decision[10] 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 attorneys fees;

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 reconsideration[15] 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 anothers
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:

4) P30,000.00 as expenses of litigation; and

5) To pay the costs.

Art. 613. An easement or servitude is an encumbrance imposed

upon an immovable for the benefit of another immovable belonging
to a different owner.

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

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 meters wide road rightof-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
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 proprietors 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 estates 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
Sketch[23] (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.

any party or witness to appear before the 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 pangkatsecretary 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 counterclaimarising 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 Action[30] belies the claim.
xxxx

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 evidence[27] to have been willfully
done in bad faith or with ill-motive.

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.

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]

x x x x (Underscoring supplied)

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:

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.

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

Issued this 24th day of November 1998 at the Multi Purpose

Hall, Barangay 1 City of San Fernando (LU).

The award for moral damages being thus baseless, that for
exemplary damages must too be baseless.

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.
BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF
APPEALS
AND
HEIRS
OF
MAGDALENO
VALDEZ
SR., respondents.
DECISION
CORONA, J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court
seeking to annul and set aside the decision[1] dated November 17,
1995 of the Court of Appeals, Tenth Division, which reversed the
decision[2] dated November 27, 1991 of the Regional Trial Court of
Cebu City, Branch IX, which ruled in favor of herein petitioner, BogoMedellin Milling Company, Inc. and dismissed herein private
respondents' complaint for payment of compensation and/or
recovery of possession of real property and damages with
application for restraining order or preliminary injunction; and its
resolution dated March 2, 1996 denying petitioner's motion for
reconsideration.
The antecedent facts follow.
Magdaleno Valdez, Sr., father of herein private respondents Sergio
Valdez, Angelina Valdez-Novabos, Teresita Argawanon-Mangubat
and Daylinda Argawanon-Melendres (hereafter the heirs), purchased
from Feliciana Santillan, on December 9, 1935, a parcel of
unregistered land covered by Tax Declaration No. 3935 with an area
of one hectare, 34 ares and 16 centares, located in Barrio
Dayhagon, Medellin, Cebu.[3] He took possession of the property
and declared it for tax purposes in his name.[4]
Prior to the sale, however, the entire length of the land from north to
south was already traversed in the middle by railroad tracks owned
by petitioner Bogo-Medellin Milling Co., Inc. (hereafter
Bomedco). The tracks were used for hauling sugar cane from the
fields to petitioners sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private
respondents inherited the land. However, unknown to them,
Bomedco was able to have the disputed middle lot which was
occupied by the railroad tracks placed in its name in the Cadastral
Survey of Medellin, Cebu in 1965. The entire subject land was
divided into three, namely, Cadastral Lot Nos. 953, 954 and 955. Lot
Nos. 953 and 955 remained in the name of private
respondents. However, Lot No. 954, the narrow lot where the railroad

tracks lay, was claimed by Bomedco as its own and was declared for
tax purposes in its name. [5]
It was not until 1989 when private respondents discovered the
aforementioned claim of Bomedco on inquiry with the Bureau of
Lands. Through their lawyer, they immediately demanded the legal
basis for Bomedco's claim over Cadastral Lot No. 954 but their letter
of inquiry addressed to petitioner went unheeded, as was their
subsequent demand for payment of compensation for the use of the
land.[6]
On June 8, 1989, respondent heirs filed a Complaint for Payment of
Compensation and/or Recovery of Possession of Real Property and
Damages with Application for Restraining Order/Preliminary
Injunction against Bomedco before the Regional Trial Court of Cebu.
[7] Respondent heirs alleged that, before she sold the land to Valdez,
Sr. in 1935, Santillan granted Bomedco, in 1929, a railroad right of
way for a period of 30 years. When Valdez, Sr. acquired the land, he
respected the grant. The right of way expired sometime in 1959 but
respondent heirs allowed Bomedco to continue using the land
because one of them was then an employee of the company.[8]
In support of the complaint, they presented an ancient document
an original copy of the deed of sale written in Spanish and dated
December 9, 1935[9] to evidence the sale of the land to
Magdaleno Valdez, Sr.; several original real estate tax
receipts[10] including Real Property Tax Receipt No. 3935[11] dated
1922 in the name of Graciano de los Reyes, husband of Feliciana
Santillan, and Real Property Tax Receipt No. 09491[12] dated 1963
in the name of Magdaleno Valdez, Sr. Magdaleno Valdez, Jr. also
testified for the plaintiffs during the trial.
On the other hand, Bomedcos principal defense was that it was the
owner and possessor of Cadastral Lot No. 954, having allegedly
bought the same from Feliciana Santillan in 1929, prior to the sale of
the property by the latter to Magdaleno Valdez, Sr. in 1935. It also
contended that plaintiffs claim was already barred by prescription
and laches because of Bomedcos open and continuous possession
of the property for more than 50 years.
Bomedco submitted in evidence a Deed of Sale[13] dated March 18,
1929; seven real estate tax receipts[14] for the property covering the
period from 1930 to 1985; a 1929 Survey Plan of private land for
Bogo-Medellin Milling Company;[15] a Survey Notification Card;
[16] Lot Data Computation for Lot No. 954;[17] a Cadastral Map for

Medellin Cadastre[18] as well as the testimonies of Vicente

Basmayor, Geodetic Engineer and property custodian for Bomedco,
and Rafaela A. Belleza, Geodetic Engineer and Chief of the Land
Management Services of the DENR, Region VIII.
In its decision dated November 27, 1991, the trial court[19] rejected
Bomedco's defense of ownership on the basis of a prior sale, citing
that its evidence a xerox copy of the Deed of Sale dated March 18,
1929 was inadmissible and had no probative value. Not only was it
not signed by the parties but defendant Bomedco also failed to
present the original copy without valid reason pursuant to Section 4,
Rule 130 of the Rules of Court.[20]
Nonetheless, the trial court held that Bomedco had been in
possession of Cadastral Lot No. 954 in good faith for more than 10
years, thus, it had already acquired ownership of the property
through acquisitive prescription under Article 620 of the Civil Code. It
explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT
easements can be acquired by prescription after ten (10) years. The
apparent characteristic of the questioned property being used by
defendant as an easement is no longer at issue, because plaintiffs
themselves had acknowledged that the existence of the railway
tracks of defendant Bomedco was already known by the late
Magdaleno Valdez, herein plaintiffs predecessor-in-interest, before
the late Magdaleno Valdez purchased in 1935 from the late Feliciana
Santillan the land described in the Complaint where defendants
railway tracks is traversing [sic] (TSN of February 5, 1991, pp. 78). As to the continuity of defendants use of the strip of land as
easement is [sic] also manifest from the continuous and
uninterrupted occupation of the questioned property from 1929 up to
the date of the filing of the instant Complaint. In view of the
defendants UNINTERRUPTED possession of the strip of land for
more than fifity (50) years, the Supreme Courts ruling in the case of
Ronquillo, et al. v. Roco, et al. (103 Phil 84) is not applicable. This is
because in said case the easement in question was a strip of dirt
road whose possession by the dominant estate occurs only
everytime said dirt road was being used by the dominant
estate. Such fact would necessarily show that the easements
possession by the dominant estate was never continuous. In the
instant case however, there is clear continuity of defendants
possession of the strip of land it had been using as railway

tracks. Because the railway tracks which defendant had constructed

on the questioned strip of land had been CONTINUOUSLY
occupying said easement. Thus, defendant Bomedcos apparent and
continuous possession of said strip of land in good faith for more
than ten (10) years had made defendant owner of said strip of land
traversed by its railway tracks. Because the railway tracks which
defendant had constructed on the questioned strip of land had been
continuously occupying said easement [sic]. Thus, defendant
Bomedcos apparent and continuous possession of said strip of land
in good faith for more than ten (10) years had made defendant owner
of said strip of land traversed by its railway tracks.
Respondent heirs elevated the case to the Court of Appeals which
found that Bomedco did not acquire ownership over the lot. It
consequently reversed the trial court. In its decision dated November
17, 1995, the appellate court held that Bomedco only acquired an
easement of right of way by unopposed and continuous use of the
land, but not ownership, under Article 620 of the Civil Code.
The appellate court further ruled that Bomedcos claim of a prior sale
to it by Feliciana Santillan was untrue. Its possession being in bad
faith, the applicable prescriptive period in order to acquire ownership
over the land was 30 years under Article 1137 of the Civil
Code. Adverse possession of the property started only in 1965 when
Bomedco registered its claim in the cadastral survey of Medellin.
Since only 24 years from 1965 had elapsed when the heirs filed a
complaint against Bomedco in 1989, Bomedcos possession of the
land had not yet ripened into ownership.
And since there was no showing that respondent heirs or their
predecessor-in-interest was ever paid compensation for the use of
the land, the appellate court awarded compensation to them, to be
computed from the time of discovery of the adverse acts of
Bomedco.
Its motion for reconsideration having been denied by the appellate
court in its resolution dated March 22, 1996, Bomedco now
interposes before us this present appeal by certiorari under Rule 45,
assigning the following errors:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR
WHEN IT REVERSED AND SET ASIDE THE TRIAL COURTS
DECISION DISMISSING PRIVATE RESPONDENTS COMPLAINT.
II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR

WHEN IT ORDERED THE PETITIONER TO PAY THE PRIVATE
RESPONDENT THE REASONABLE VALUE OF LOT 954 AND THE
AMOUNT OF TEN THOUSAND (P10,000.00) PESOS AS
REASONABLE ATTORNEYS FEES.
Petitioner Bomedco reiterates its claim of ownership of the
land through extraordinary acquisitive prescription under Article 1137
of the Civil Code and laches to defeat the claim for compensation or
recovery of possession by respondent heirs. It also submits a third
ground originally tendered by the trial court acquisition of the
easement of right of way by prescription under Article 620 of the Civil
Code.
Extraordinary Acquisitive Prescription
Under Art. 1137 of the Civil Code
Petitioners claim of ownership through extraordinary acquisitive
prescription under Article 1137 of the Civil Code cannot be sustained.
There is no dispute that the controversial strip of land has been in
the continuous possession of petitioner since 1929. But possession,
to constitute the foundation of a prescriptive right, must be
possession under a claim of title, that is, it must be adverse.
[21] Unless coupled with the element of hostility towards the true
owner, possession, however long, will not confer title by prescription.
[22]
After a careful review of the records, we are inclined to believe the
version of respondent heirs that an easement of right of way was
actually granted to petitioner for which reason the latter was able to
occupy Cadastral Lot No. 954. We cannot disregard the fact that, for
the years 1930, 1937, 1949, 1962 and 1963, petitioner unequivocally
declared the property to be a central railroad right of way or sugar
central railroad right of way in its real estate tax receipts when it
could have declared it to be industrial land as it did for the years
1975 and 1985.[23] Instead of indicating ownership of the lot, these
receipts showed that all petitioner had was possession by virtue of
the right of way granted to it. Were it not so and petitioner really
owned the land, petitioner would not have consistently used the
phrases central railroad right of way and sugar central railroad right
of way in its tax declarations until 1963. Certainly an owner would
have found no need for these phrases. A person cannot have an
easement on his own land, since all the uses of an easement are
fully comprehended in his general right of ownership.[24]

While it is true that, together with a persons actual and adverse

possession of the land, tax declarations constitute strong evidence of
ownership of the land occupied by him,[25] this legal precept does
not apply in cases where the property is declared to be a mere
easement of right of way.
An easement or servitude is a real right, constituted on the corporeal
immovable property of another, by virtue of which the owner has to
refrain from doing, or must allow someone to do, something on his
property, for the benefit of another thing or person. It exists only
when the servient and dominant estates belong to two different
owners. It gives the holder of the easement an incorporeal interest
on the land but grants no title thereto. Therefore, an acknowledgment
of the easement is an admission that the property belongs to
another.[26]
Having held the property by virtue of an easement, petitioner cannot
now assert that its occupancy since 1929 was in the concept of an
owner. Neither can it declare that the 30-year period of extraordinary
acquisitive prescription started from that year.
Petitioner, however, maintains that even if a servitude was merely
imposed on the property in its favor, its possession immediately
became adverse to the owner in the late 1950s when the grant was
alleged by respondent heirs to have expired. It stresses that,
counting from the late 1950s (1959 as found by the trial court), the
30-year extraordinary acquisitive prescription had already set in by
the time respondent heirs made a claim against it in their letters
dated March 1 and April 6, 1989.
We do not think so. The mere expiration of the period of easement in
1959 did not convert petitioners possession into an adverse one.
Mere material possession of land is not adverse possession as
against the owner and is insufficient to vest title, unless such
possession is accompanied by the intent to possess as an owner.
[27] There should be a hostile use of such a nature and exercised
under such circumstances as to manifest and give notice that the
possession is under a claim of right.
In the absence of an express grant by the owner, or conduct by
petitioner sugar mill from which an adverse claim can be implied, its
possession of the lot can only be presumed to have continued in the
same character as when it was acquired (that is, it possessed the
land only by virtue of the original grant of the easement of right of
way),[28] or was by mere license or tolerance of the owners

(respondent heirs).[29] It is a fundamental principle of law in this

jurisdiction that acts of possessory character executed by virtue of
license or tolerance of the owner, no matter how long, do not start
the running of the period of prescription.[30]
After the grant of easement expired in 1959, petitioner never
performed any act incompatible with the ownership of respondent
heirs over Cadastral Lot No. 954. On the contrary, until 1963,
petitioner continued to declare the sugar central railroad right of way
in its realty tax receipts, thereby doubtlessly conceding the
ownership of respondent heirs. Respondents themselves were
emphatic that they simply tolerated petitioners continued use of
Cadastral Lot No. 954 so as not to jeopardize the employment of one
of their co-heirs in the sugar mill of petitioner.[31]
The only time petitioner assumed a legal position adverse to
respondents was when it filed a claim over the property in 1965
during the cadastral survey of Medellin. Since then (1965) and until
the filing of the complaint for the recovery of the subject land before
the RTC of Cebu in 1989, only 24 years had lapsed. Since the
required 30-year extraordinary prescriptive period had not yet been
complied with in 1989, petitioner never acquired ownership of the
subject land.
Laches
Neither can petitioner find refuge in the principle of laches. It is not
just the lapse of time or delay that constitutes laches. The essence of
laches is the failure or neglect, for an unreasonable and unexplained
length of time, to do that which, through due diligence, could or
should have been done earlier, thus giving rise to a presumption that
the party entitled to assert it had either abandoned or declined to
assert it.[32]
Its essential elements are: (a) conduct on the part of the defendant,
or of one under whom he claims, giving rise to the situation
complained of; (b) delay in asserting complainants rights after he had
knowledge of defendants acts and after he has had the opportunity
to sue; (c) lack of knowledge or notice by defendant that the
complainant will assert the right on which he bases his suit; and (d)
injury or prejudice to the defendant in the event the relief is accorded
to the complainant.[33]
The second element (which in turn has three aspects) is lacking in
the case at bar. These aspects are: (a) knowledge of defendant's

action, (b) opportunity to sue defendant after obtaining such

knowledge and (c) delay in the filing of such suit.[34]
Records show that respondent heirs only learned about petitioners
claim on their property when they discovered the inscription for the
cadastral survey in the records of the Bureau of Lands in 1989.
Respondents lost no time in demanding an explanation for said claim
in their letters to the petitioner dated March 1, 1989 and April 6,
1989. When petitioner ignored them, they instituted their complaint
before the Regional Trial Court of Cebu City on June 8, 1989.
Petitioners reliance on Caro vs. Court of Appeals [35] and Vda. de
Alberto vs. Court of Appeals [36] is misplaced. There, laches was
applied to bar petitioners from questioning the ownership of the
disputed properties precisely because they had knowledge of the
adverse claims on their properties yet tarried for an extraordinary
period of time before taking steps to protect their rights.
Further, there is no absolute rule on what constitutes laches. It is a
rule of equity and applied not to penalize neglect or sleeping on ones
rights but rather to avoid recognizing a right when to do so would
result in a clearly unfair situation. The question of laches is
addressed to the sound discretion of the court and each case must
be decided according to its particular circumstances.[37] It is the
better rule that courts, under the principle of equity, should not be
guided or bound strictly by the statute of limitations or the doctrine of
laches if wrong or injustice will result.
It is clear that petitioner never acquired ownership over Cadastral Lot
No. 954 whether by extraordinary acquisitive prescription or by
laches.
Acquisition of Easement of Right of Way By
Prescription Under Art. 620 of the Civil Code
Petitioner contends that, even if it failed to acquire ownership of the
subject land, it nevertheless became legally entitled to the easement
of right of way over said land by virtue of prescription under Article
620 of the Civil Code:
Continuous and apparent easements are acquired either by virtue of
a title or by prescription of ten years.
The trial court and the Court of Appeals both upheld this view for the
reason that the railroad right of way was, according to
them, continuous and apparent in nature. The more or less
permanent
railroad
tracks
were
visually apparent and
they continuously occupied the subject strip of land from 1959 (the

year the easement granted by Feliciana Santillan to petitioner

expired).Thus, with the lapse of the 10-year prescriptive period in
1969, petitioner supposedly acquired the easement of right of way
over the subject land.
Following the logic of the courts a quo, if a road for the use of
vehicles or the passage of persons is permanently cemented or
asphalted, then the right of way over it becomes continuous in
nature. The reasoning is erroneous.
Under civil law and its jurisprudence, easements are either
continuous or discontinuous according to the manner they are
exercised, not according to the presence of apparent signs or
physical indications of the existence of such easements. Thus, an
easement is continuous if its use is, or may be, incessant without the
intervention of any act of man, like the easement of drainage;
[38] and it is discontinuous if it is used at intervals and depends on
the act of man, like the easement of right of way.[39]
The easement of right of way is considered discontinuous because it
is exercised only if a person passes or sets foot on somebody elses
land. Like a road for the passage of vehicles or persons, an
easement of right of way of railroad tracks is discontinuous because
the right is exercised only if and when a train operated by a person
passes over another's property. In other words, the very exercise of
the servitude depends upon the act or intervention of man which is
the very essence of discontinuous easements.
The presence of more or less permanent railroad tracks does not in
any way convert the nature of an easement of right of way to one
that is continuous. It is not the presence of apparent signs or
physical indications showing the existence of an easement, but
rather the manner of exercise thereof, that categorizes such
easement into continuous or discontinuous. The presence of
physical or visual signs only classifies an easement
into apparent or non-apparent. Thus, a road (which reveals a right of
way) and a window (which evidences a right to light and view) are
apparent easements, while an easement of not building beyond a
certain height is non-apparent.[40]
In Cuba, it has been held that the existence of a permanent railway
does not make the right of way a continuous one; it is only apparent.
Therefore, it cannot be acquired by prescription.[41]In Louisiana, it
has also been held that a right of passage over another's land cannot

be claimed by prescription because this easement is discontinuous

and can be established only by title.[42]
In this case, the presence of railroad tracks for the passage of
petitioners trains denotes the existence of an apparent but
discontinuous easement of right of way. And under Article 622 of the
Civil Code, discontinuous easements, whether apparent or not, may
be acquired only by title. Unfortunately, petitioner Bomedco never
acquired any title over the use of the railroad right of way whether by
law, donation, testamentary succession or contract. Its use of the
right of way, however long, never resulted in its acquisition of the
easement because, under Article 622, the discontinuous easement
of a railroad right of way can only be acquired by title and not by
prescription.
To be sure, beginning 1959 when the original 30-year grant of right of
way given to petitioner Bomedco expired, its occupation and use of
Cadastral Lot No. 954 came to be by mere tolerance of the
respondent heirs. Thus, upon demand by said heirs in 1989 for the
return of the subject land and the removal of the railroad tracks, or, in
the alternative, payment of compensation for the use thereof,
petitioner Bomedco which had no title to the land should have
returned the possession thereof or should have begun paying
compensation for its use.
But when is a party deemed to acquire title over the use of such land
(that is, title over the easement of right of way)? In at least two
cases, we held that if: (a) it had subsequently entered into
a contractual right of way with the heirs for the continued use of the
land under the principles of voluntary easements or (b) it had filed a
case against the heirs for conferment on it of a legal easement of
right of way under Article 629 of the Civil Code, then title over
the use of the land is deemed to exist. The conferment of a legal
easement of right of way under Article 629 is subject to proof of the
following:
(1) it is surrounded by other immovables and has no adequate outlet
to a public highway;
(2) payment of proper indemnity;
(3) the isolation is not the result of its own acts; and
(4) the right of way claimed is at the point least prejudicial to the
servient estate, and, insofar as consistent with this rule, the distance
from the dominant estate to the highway is the shortest.[43]

None of the above options to acquire title over the railroad right of
way was ever pursued by petitioner despite the fact that simple
resourcefulness demanded such initiative, considering the
importance of the railway tracks to its business. No doubt, it is
unlawfully occupying and using the subject strip of land as a railroad
right of way without valid title yet it refuses to vacate it even after
demand of the heirs. Furthermore, it tenaciously insists on ownership
thereof despite a clear showing to the contrary.
We thus uphold the grant by the Court of Appeals of attorneys fees in
the amount of P10,000 considering the evident bad faith of petitioner
in refusing respondents just and lawful claims, compelling the latter
to litigate.[44]
WHEREFORE, the petition is DENIED. The appealed decision dated
November 17, 1995 and resolution dated March 2, 1996 of the Court
of Appeals are AFFIRMED with MODIFICATION.Petitioner BogoMedellin Milling Company, Inc. is hereby ordered to vacate the
subject strip of land denominated as Cadastral Lot No. 954, remove
its railway tracks thereon and return its possession to the private
respondents, the heirs of Magdaleno Valdez, Sr. It is also hereby
ordered to pay private respondents attorney's fees in the amount
of P10,000.
SO ORDERED.

LA VISTA ASSOCIATION, INC., petitioner, vs. COURT OF

APPEALS, SOLID HOMES, INC., ATENEO DE MANILA
UNIVERSITY, ROMULO VILLA, LORENZO TIMBOL, EMDEN
ENCARNACION, VICENTE CASIO, JR., DOMINGO REYES,
PEDRO C. MERCADO, MARIO AQUINO, RAFAEL GOSECO,
PORFIRIO CABALU, JR. and ANTONIO ADRIANO, in their behalf
and in behalf of the residents of LOYOLA GRAND VILLAS, INC.,
PHASES I AND II, respondents.
DECISION
BELLOSILLO, J.:
MANGYAN ROAD is a 15-meter wide thoroughfare in Quezon City
abutting Katipunan Avenue on the west, traversing the edges of La
Vista Subdivision on the north and of the Ateneo de Manila University
and Maryknoll (now Miriam) College on the south. Mangyan Road
serves as the boundary between LA VISTA on one side and ATENEO
and MARYKNOLL on the other. It bends towards the east and ends
at the gate of Loyola Grand Villas Subdivision. The road has been
the subject of an endless dispute, the disagreements always
stemming from this unresolved issue: Is there an easement of rightof-way over Mangyan Road?
In resolving this controversy, the Court would wish to write finis to
this seemingly interminable debate which has dragged on for more
than twenty years.

The area comprising the 15-meter wide roadway was originally part
of a vast tract of land owned by the Tuasons in Quezon City and
Marikina. On 1 July 1949 the Tuasons sold to Philippine Building
Corporation a portion of their landholdings amounting to 1,330,556
square meters by virtue of a Deed of Sale with Mortgage. Paragraph
three (3) of the deed provides that x x x the boundary line between
the property herein sold and the adjoining property of the VENDORS
shall be a road fifteen (15) meters wide, one-half of which shall be
taken from the property herein sold to the VENDEE and the other
half from the portion adjoining belonging to the VENDORS.
On 7 December 1951 the Philippine Building Corporation, which was
then acting for and in behalf of Ateneo de Manila University
(ATENEO) in buying the properties from the Tuasons, sold, assigned
and formally transferred in a Deed of Assignment with Assumption of
Mortgage, with the consent of the Tuasons, the subject parcel of land
to ATENEO which assumed the mortgage.The deed of assignment
states The ASSIGNEE hereby agrees and assumes to pay the mortgage
obligation on the above-described land in favor of the MORTGAGOR
and to perform any and all terms and conditions as set forth in the
Deed of Sale with Mortgage dated July 1, 1949, hereinabove
referred to, which said document is incorporated herein and made an
integral part of this contract by reference x x x x
On their part, the Tuasons developed a part of the estate adjoining
the portion sold to Philippine Building Corporation into a residential
village known as La Vista Subdivision. Thus the boundary between
LA VISTA and the portion sold to Philippine Building Corporation was
the 15-meter wide roadway known as the Mangyan Road.
On 6 June 1952 ATENEO sold to MARYKNOLL the western portion
of the land adjacent to Mangyan Road. MARYKNOLL then
constructed a wall in the middle of the 15-meter wide roadway
making one-half of Mangyan Road part of its school campus. The
Tuasons objected and later filed a complaint before the then Court of
First Instance of Rizal for the demolition of the wall. Subsequently, in
an amicable settlement, MARYKNOLL agreed to remove the wall
and restore Mangyan Road to its original width of 15 meters.
Meanwhile, the Tuasons developed its 7.5-meter share of the 15meter wide boundary. ATENEO deferred improvement on its share
and erected instead an adobe wall on the entire length of the
boundary of its property parallel to the 15-meter wide roadway.

On 30 January 1976 ATENEO informed LA VISTA of the formers

intention to develop some 16 hectares of its property along Mangyan
Road into a subdivision. In response, LA VISTA President Manuel J.
Gonzales clarified certain aspects with regard to the use of Mangyan
Road. Thus x x x The Mangyan Road is a road fifteen meters wide, one-half of
which is taken from your property and the other half from the La Vista
Subdivision. So that the easement of a right-of-way on your 7 1/2 m.
portion was created in our favor and likewise an easement of rightof-way was created on our 7 1/2 portion of the road in your favor
(paragraph 3 of the Deed of Sale between the Tuasons and the
Philippine Building Corporation and Ateneo de Manila dated 1 July
1949 x x x x
On 28 April 1976 LA VISTA President Manuel J. Gonzales, in a letter
to ATENEO President Fr. Jose A. Cruz, S. J., offered to buy under
specified conditions the property ATENEO was intending to
develop. One of the conditions stipulated by the LA VISTA President
was that [i]t is the essence of the offer that the mutual right of way
between the Ateneo de Manila University and La Vista Homeowners
Association will be extinguished. The offer of LA VISTA to buy was
not accepted by ATENEO. Instead, on 10 May 1976 ATENEO offered
to sell the property to the public subject to the condition that the right
to use the 15-meter roadway will be transferred to the vendee who
will negotiate with the legally involved parties regarding the use of
such right as well as the development costs for improving the access
road.
LA VISTA became one of the bidders. However it lost to Solid
Homes, Inc., in the bidding. Thus on 29 October 1976 ATENEO
executed a Deed of Sale in favor of Solid Homes, Inc., over parcels
of land covering a total area of 124,424 square meters subject,
among others, to the condition that 7. The VENDOR hereby passes unto the VENDEE, its assigns and
successors-in-interest the privileges of such right of way which the
VENDOR acquired, and still has, by virtue of the Deeds mentioned in
the immediately preceeding paragraph hereof; provided, that the
VENDOR shall nonetheless continue to enjoy said right of way
privileges with the VENDEE, which right of way in favor of the
VENDOR shall be annotated on the pertinent road lot titles. However
it is hereby agreed that the implementation of such right of way shall
be for the VENDEEs sole responsibility and liability, and likewise any

development of such right of way shall be for the full account of the
VENDEE. In the future, if needed, the VENDOR is therefore free to
make use of the aforesaid right of way, and/or Mangyan Road
access, but in such a case the VENDOR shall contribute a pro-rata
share in the maintenance of the area.
Subsequently, Solid Homes, Inc., developed a subdivision now
known as Loyola Grand Villas and together they now claim to have
an easement of right-of-way along Mangyan Road through which
they could have access to Katipunan Avenue.
LA VISTA President Manuel J. Gonzales however informed Solid
Homes, Inc., that LA VISTA could not recognize the right-of-way over
Mangyan Road because, first, Philippine Building Corporation and its
assignee ATENEO never complied with their obligation of providing
the Tuasons with a right-of-way on their 7.5-meter portion of the road
and, second, since the property was purchased for commercial
purposes, Solid Homes, Inc., was no longer entitled to the right-ofway as Mangyan Road was established exclusively for ATENEO in
whose favor the right-of-way was originally constituted. LA VISTA,
after instructing its security guards to prohibit agents and assignees
of Solid Homes, Inc., from traversing Mangyan Road, then
constructed one-meter high cylindrical concrete posts chained
together at the middle of and along the entire length of Mangyan
Road thus preventing the residents of LOYOLA from passing
through.
Solid Homes, Inc., complained to LA VISTA but the concrete posts
were not removed. To gain access to LOYOLA through Mangyan
Road an opening through the adobe wall of ATENEO was made and
some six (6) cylindrical concrete posts of LA VISTA were
destroyed. LA VISTA then stationed security guards in the area to
prevent entry to LOYOLA through Mangyan Road.
On 17 December 1976, to avert violence, Solid Homes, Inc.,
instituted the instant case, docketed as Civil Case No. Q-22450,
before the then Court of First Instance of Rizal and prayed that LA
VISTA be enjoined from preventing and obstructing the use and
passage of LOYOLA residents through Mangyan Road. LA VISTA in
turn filed a third-party complaint against ATENEO. On 14 September
1983 the trial court issued a preliminary injunction in favor of Solid
Homes, Inc. (affirming an earlier order of 22 November 1977),
directing LA VISTA to desist from blocking and preventing the use of
Mangyan Road. The injunction order of 14 September 1983 was

however nullified and set aside on 31 May 1985 by the then

Intermediate Appellate Court[1] in AC-G.R. SP No. 02534. Thus in a
petition for review on certiorari, docketed as G.R. No. 71150, Solid
Homes, Inc., assailed the nullification and setting aside of the
preliminary injuntion issued by the trial court.
Meanwhile, on 20 November 1987 the Regional Trial Court of
Quezon City rendered a decision on the merits[2] in Civil Case No.
Q-22450 affirming and recognizing the easement of right-of-way
along Mangyan Road in favor of Solid Homes, Inc., and ordering LA
VISTA to pay damages thus ACCORDINGLY, judgment is hereby rendered declaring that an
easement of a right-of-way exists in favor of the plaintiff over
Mangyan Road, and, consequently, the injunction prayed for by the
plaintiff is granted, enjoining thereby the defendant, its successorsin-interest, its/their agents and all persons acting for and on its/their
behalf, from closing, obstructing, preventing or otherwise refusing to
the plaintiff, its successors-in-interest, its/their agents and all persons
acting for and on its/their behalf, and to the public in general, the
unobstructed ingress and egress on Mangyan Road, which is the
boundary road between the La Vista Subdivision on one hand, and
the Ateneo de Manila University, Quezon City, and the Loyola Grand
Villas Subdivision, Marikina, Metro Manila, on the other; and, in
addition the defendant is ordered to pay the plaintiff reasonable
attorneys fees in the amount of P30,000.00. The defendant-thirdparty plaintiff is also ordered to pay the third-party defendant
reasonable attorneys fees for another amount of P15,000.00. The
counter-claim of the defendant against the plaintiff is dismissed for
lack of merit. With costs against the defendant.
Quite expectedly, LA VISTA appealed to the Court of Appeals,
docketed as CA-G.R. CV No. 19929. On 20 April 1988 this Court,
taking into consideration the 20 November 1987 Decision of the trial
court, dismissed the petition docketed as G.R. No. 71150 wherein
Solid Homes, Inc., sought reversal of the 31 May 1985 Decision in
AC-G.R. SP No. 02534 which nullified and set aside the 14
September 1983 injunction order of the trial court. There we said Considering that preliminary injunction is a provisional remedy which
may be granted at any time after the commencement of the action
and before judgment when it is established that the plaintiff is entitled
to the relief demanded and only when his complaint shows facts
entitling such reliefs (Section 3(a), Rule 58) and it appearing that the

trial court had already granted the issuance of a final injunction in

favor of petitioner in its decision rendered after trial on the merits
(Sections 7 & 10, Rule 58, Rules of Court), the Court resolved to
Dismiss the instant petition having been rendered moot and
academic. An injunction issued by the trial court after it has already
made a clear pronouncement as to the plaintiffs right thereto, that is,
after the same issue has been decided on the merits, the trial court
having appreciated the evidence presented, is proper,
notwithstanding the fact that the decision rendered is not yet final (II
Moran, pp. 81-82, 1980 ed.). Being an ancillary remedy, the
proceedings for preliminary injunction cannot stand separately or
proceed independently of the decision rendered on the merit of the
main case for injunction. The merit of the main case having been
already determined in favor of the applicant, the preliminary
determination of its non-existence ceases to have any force and
effect.[3]
On the other hand, in CA-G.R. CV No. 19929, several incidents were
presented for resolution: two (2) motions filed by Solid Homes, Inc.,
to cite certain officers of LA VISTA for contempt for alleged violation
of the injunction ordaining free access to and egress from Mangyan
Road, to which LA VISTA responded with its own motion to cite Solid
Homes, Inc., for contempt; a motion for leave to intervene and to reopen Mangyan Road filed by residents of LOYOLA; and, a petition
praying for the issuance of a restraining order to enjoin the closing of
Mangyan Road. On 21 September 1989 the incidents were resolved
by the Court of Appeals[4] thus 1. Defendant-appellant La Vista Association, Inc., its Board of
Directors and other officials and all persons acting under their orders
and in their behalf are ordered to allow all residents of Phase I and II
of Loyola Grand Villas unobstructed right-of-way or passage through
the Mangyan Road which is the boundary between the La Vista
Subdivision and the Loyola Grand Villas Subdivision;
2. The motion to intervene as plaintiffs filed by the residents of
Loyola Grand Villas Subdivision is GRANTED; and
3. The motions for contempt filed by both plaintiff-appellee and
defendant-appellant are DENIED.
This resolution is immediately executory.[5]
On 15 December 1989 both motions for reconsideration of Solid
Homes, Inc., and LA VISTA were denied. In separate petitions, both
elevated the 21 September 1989 and 15 December 1989

Resolutions of the Court of Appeals to this Court. The petition of

Solid Homes, Inc., docketed as G.R. No. 91433, prayed for an order
directing the appellate court to take cognizance of and hear the
motions for contempt, while that of LA VISTA in G.R. No. 91502
sought the issuance of a preliminary injunction to order Solid Homes,
Inc., ATENEO and LOYOLA residents to desist from intruding into
Mangyan Road.
On 22 May 1990, pending resolution of G.R. Nos. 91433 and 91502,
the Second Division of the Court of Appeals[6] in CA-G.R. CV No.
19929 affirmed in toto the Decision of the trial court in Civil Case No.
Q-22450. On 6 September 1990 the motions for reconsideration
and/or re-raffle and to set the case for oral argument were denied. In
view of the affirmance of the Decision by the Court of Appeals in CAG.R. CV No. 19929 this Court dismissed the petition in G.R. No.
91502 for being moot as its main concern was merely the validity of
a provisional or preliminary injunction earlier issued. We also denied
the petition in G.R. No. 91433 in the absence of a discernible grave
abuse of discretion in the ruling of the appellate court that it could not
entertain the motions to cite the parties for contempt because a
charge of contempt committed against a superior court may be filed
only before the court against whom the contempt has been
committed (Sec. 4, Rule 71, Rules of Court).[7]
Consequently we are left with the instant case where petitioner LA
VISTA assails the Decision of respondent Court of Appeals
affirming in toto the Decision of the trial court which rendered a
judgment on the merits and recognized an easement of right-of-way
along Mangyan Road, permanently enjoining LA VISTA from closing
to Solid Homes, Inc., and its successors-in-interest the ingress and
egress on Mangyan Road.
In its first assigned error, petitioner LA VISTA argues that respondent
appellate court erred in disregarding the decisions in (a) La Vista
Association, Inc., v. Hon. Ortiz,[8] affirmed by this Court in Tecson v.
Court of Appeals;[9] (b) La Vista Association, Inc., v. Hon. Leviste,
[10] affirmed by this Court in Rivera v. Hon. Intermediate Appellate
Court;[11] and, (c) La Vista v. Hon. Mendoza,[12] and in holding that
an easement of right-of-way over Mangyan Road exists.[13]
We do not agree with petitioner. The reliance of petitioner on the
cited cases is out of place as they involve the issuance of a
preliminary injunction pending resolution of a case on the merits. In
the instant case, however, the subject of inquiry is not merely the

issuance of a preliminary injunction but the final injunctive writ which

was issued after trial on the merits. A writ of preliminary injunction is
generally based solely on initial and incomplete evidence. The
opinion and findings of fact of a court when issuing a writ of
preliminary injunction are interlocutory in nature and made even
before the trial on the merits is terminated. Consequently there may
be vital facts subsequently presented during the trial which were not
obtaining when the writ of preliminary injunction was issued. Hence,
to equate the basis for the issuance of a preliminary injunction with
that for the issuance of a final injunctive writ is erroneous. And it
does not necessarily mean that when a writ of preliminary injunction
issues a final injunction follows. Accordingly, respondent Court of
Appeals in its assailed Decision rightly held that We are unswayed by appellants theory that the cases cited by them
in their Brief (pages 17 and 32) and in their motion for early
resolution (page 11, Rollo) to buttress the first assigned error, are
final judgments on the merits of, and therefore res judicata to the
instant query. It is quite strange that appellant was extremely
cautious in not mentioning this doctrine but the vague disquisition
nevertheless points to this same tenet, which upon closer
examination negates the very proposition. Generally, it is axiomatic
that res judicata will attach in favor of La Vista if and when the case
under review was disposed of on the merits and with finality (Manila
Electric Co., vs. Artiaga, 50 Phil. 144; 147; S. Diego vs. Carmona, 70
Phil. 281; 283; cited in Comments on the Rules of Court, by Moran,
Volume II, 1970 edition, page 365; Roman Catholic Archbishop vs.
Director of Lands, 35 Phil. 339; 350-351, cited in Remedial Law
Compendium, by Regalado, Volume I, 1986 Fourth revised Edition,
page 40). Appellants suffer from the mistaken notion that the merits
of the certiorari petitions impugning the preliminary injunction in the
cases cited by it are tantamount to the merits of the main case,
subject of the instant appeal. Quite the contrary, the so-called final
judgments adverted to dealt only with the propriety of the issuance or
non-issuance of the writ of preliminary injunction, unlike the present
recourse which is directed against a final injunctive writ under
Section 10, Rule 58. Thus the invocation of the disputed matter
herein is misplaced.[14]
We thus repeat what we said in Solid Homes, Inc., v. La
Vista [15] which respondent Court of Appeals quoted in its assailed
Decision [16] -

Being an ancillary remedy, the proceedings for preliminary injunction

cannot stand separately or proceed independently of the decision
rendered on the merits of the main case for injunction. The merits of
the main case having been already determined in favor of the
applicant, the preliminary determination of its non-existence ceases
to have any force and effect.
Petitioner LA VISTA in its lengthy Memorandum also quotes our
ruling in Ramos, Sr., v. Gatchalian Realty, Inc.,[17] no less than five
(5) times[18] To allow the petitioner access to Sucat Road through Gatchalian
Avenue inspite of a road right-of-way provided by the petitioners
subdivision for its buyers simply because Gatchalian Avenue allows
petitioner a much greater ease in going to and coming from the main
thoroughfare is to completely ignore what jurisprudence has
consistently maintained through the years regarding an easement of
a right-of-way, that mere convenience for the dominant estate is not
enough to serve as its basis. To justify the imposition of this
servitude, there must be a real, not a fictitious or artificial, necessity
for it (See Tolentino, Civil Code of the Philippines, Vol. II, 2nd ed.,
1972, p. 371)
Again this is misplaced. Ramos, Sr., v. Gatchalian Realty, Inc.,
[19] concerns a legal or compulsory easement of right-of-way Since there is no agreement between the contending parties in this
case granting a right-of-way by one in favor of the other, the
establishment of a voluntary easement between the petitioner and
the respondent company and/or the other private respondents is
ruled out. What is left to examine is whether or not petitioner is
entitled to a legal or compulsory easement of a right-of-way which should be distinguished from a voluntary easement. A legal or
compulsory easement is that which is constituted by law for public
use or for private interest. By express provisions of Arts. 649 and 650
of the New Civil Code, the owner of an estate may claim a legal or
compulsory right-of-way only after he has established the existence
of four (4) requisites, namely, (a) the estate is surrounded by other
immovables and is without adequate outlet to a public highway; (b)
after payment of the proper indemnity; (c) the isolation was not due
to the proprietors own acts; and, (d) the right-of-way claimed is at a
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.[20] A voluntary easement on the

other hand is constituted simply by will or agreement of the parties.
From the facts of the instant case it is very apparent that the parties
and their respective predecessors-in-interest intended to establish an
easement of right-of-way over Mangyan Road for their mutual
benefit, both as dominant and servient estates. This is quite evident
when: (a) the Tuasons and the Philippine Building Corporation in
1949 stipulated in par. 3 of their Deed of Sale with Mortgage that the
boundary line between the property herein sold and the adjoining
property of the VENDORS shall be a road fifteen (15) meters wide,
one-half of which shall be taken from the property herein sold to the
VENDEE and the other half from the portion adjoining belonging to
the vendors; (b) the Tuasons in 1951 expressly agreed and
consented to the assignment of the land to, and the assumption of all
the rights and obligations by ATENEO, including the obligation to
contribute seven and one-half meters of the property sold to form
part of the 15-meter wide roadway; (c) the Tuasons in 1958 filed a
complaint against MARYKNOLL and ATENEO for breach of contract
and the enforcement of the reciprocal easement on Mangyan Road,
and demanded that MARYKNOLL set back its wall to restore
Mangyan Road to its original width of 15 meters, after MARYKNOLL
constructed a wall in the middle of the 15-meter wide roadway; (d)
LA VISTA President Manuel J. Gonzales admitted and clarified in
1976, in a letter to ATENEO President Fr. Jose A. Cruz, S.J.,
that Mangyan Road is a road fifteen meters wide, one-half of which
is taken from your property and the other half from the La Vista
Subdivision. So that the easement of a right-of-way on your 7 1/2 m.
portion was created in our favor and likewise an easement of rightof-way was created on our 7 1/2 m. portion of the road in your
favor; (e) LA VISTA, in its offer to buy the hillside portion of the
ATENEO property in 1976, acknowledged the existence of the
contractual right-of-way as it manifested that the mutual right-of-way
between the Ateneo de Manila University and La Vista Homeowners
Association would be extinguished if it bought the adjacent ATENEO
property and would thus become the owner of both the dominant and
servient estates; and, (f) LA VISTA President Luis G. Quimson, in a
letter addressed to the Chief Justice, received by this Court on 26
March 1997, acknowledged that one-half of the whole length of
(Mangyan Road) belongs to La Vista Assn., Inc. The other half is
owned by Miriam (Maryknoll) and the Ateneo in equal portions;

These certainly are indubitable proofs that the parties concerned had
indeed constituted a voluntary easement of right-of-way over
Mangyan Road and, like any other contract, the same could be
extinguished only by mutual agreement or by renunciation of the
owner of the dominant estate. Thus respondent Court of Appeals did
not commit a reversible error when it ruled that Concerning the pivotal question posed herein on the existence of an
easement, we are of the belief, and thus hereby hold that a right-ofway was properly appreciated along the entire route of Mangyan
Road.Incidentally, the pretense that the court a quo erred in holding
that Mangyan Road is the boundary road between La Vista and
Ateneo (page 31, Appellants Brief) does not raise any critical
eyebrow since the same is wholly irrelevant to the existence of a
servitude thereon from their express admission to the contrary
(paragraph 1, Answer).
Ones attention should rather be focused on the contractual
stipulations in the deed of sale between the Tuason Family and the
Philippine Building Corporation (paragraph 3, thereof) which were
incorporated in the deed of assignment with assumption of mortgage
by the Philippine Building Corporation in favor of Ateneo (first
paragraph, page 4 of the deed) as well as in the deed of sale dated
October 24, 1976 when the property was ultimately transferred by
Ateneo to plaintiff-appellee. Like any other contractual stipulation, the
same cannot be extinguished except by voluntary rescission of the
contract establishing the servitude or renunciation by the owner of
the dominant lots (Chuanico vs. Ibaez, 7 CA Reports, 2nd Series,
1965 edition, pages 582; 589, cited in Civil Law Annotated, by
Padilla, Volume II, 1972 Edition, pages602-603), more so when the
easement was implicitly recognized by the letters of the La Vista
President to Ateneo dated February 11 and April 28, 1976 (page 22,
Decision; 19 Ruling Case Law 745).
The free ingress and egress along Mangyan Road created by the
voluntary agreement between Ateneo and Solid Homes, Inc., is thus
legally demandable (Articles 619 and 625, New Civil Code) with the
corresponding duty on the servient estate not to obstruct the same
so much so that When the owner of the servient tenement performs acts or
constructs works impairing the use of the servitude, the owner of the
dominant tenement may ask for the destruction of such works and
the restoration of the things to their condition before the impairment

was committed, with indemnity for damages suffered (3 Sanchez

Roman 609). An injunction may also be obtained in order to restrain
the owner of the servient tenement from obstructing or impairing in
any manner the lawful use of the servitude (Resolme v. Lazo, 27
Phil. 416; 417; 418). (Commentaries and Jurisprudence on the Civil
Code of the Philippines, by Tolentino, Volume 2, 1963 edition, page
320)[21]
Resultantly, when the court says that an easement exists, it is not
creating one. For, even an injunction cannot be used to create one
as there is no such thing as a judicial easement. As in the instant
case, the court merely declares the existence of an easement
created by the parties. Respondent court could not have said it any
better It must be emphasized, however, that We are not constituting an
easement along Mangyan Road, but merely declaring the existence
of one created by the manifest will of the parties herein in recognition
of autonomy of contracts (Articles 1306 and 619, New Civil Code;
Tolentino, supra, page 308; Civil Code of the Philippines, by Paras,
Volume II, 1984 edition, page 549).[22]
The argument of petitioner LA VISTA that there are other routes to
LOYOLA from Mangyan Road is likewise meritless, to say the
least. 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]
That there is no contract between LA VISTA and Solid Homes, Inc.,
and thus the court could not have declared the existence of an
easement created by the manifest will of the parties, is devoid of
merit. The predecessors-in-interest of both LA VISTA and Solid
Homes, Inc., i.e., the Tuasons and the Philippine Building
Corporation, respectively, clearly established a contractual easement
of right-of-way over Mangyan Road. When the Philippine Building
Corporation transferred its rights and obligations to ATENEO the
Tuasons expressly consented and agreed thereto.Meanwhile, the
Tuasons themselves developed their property into what is now
known as LA VISTA. On the other hand, ATENEO sold the hillside
portions of its property to Solid Homes, Inc., including the right over
the easement of right-of-way. In sum, when the easement in this

case was established by contract, the parties unequivocally made

provisions for its observance by all who in the future might succeed
them in dominion.
The contractual easement of right-of-way having been confirmed, we
find no reason to delve on the issue concerning P.D. No. 957 which
supposedly grants free access to any subdivision street to
government or public offices within the subdivision. In the instant
case, the rights under the law have already been superseded by the
voluntary easement of right-of-way.
Finally, petitioner questions the intervention of some LOYOLA
residents at a time when the case was already on appeal, and
submits that intervention is no longer permissible after trial has been
concluded. Suffice it to say that in Director of Lands v. Court of
Appeals,[24] we said It is quite clear and patent that the motions for intervention filed by
the movants at this stage of the proceedings where trial has already
been concluded, a judgment thereon had been promulgated in favor
of private respondent and on appeal by the losing party x x x the
same was affirmed by the Court of Appeals and the instant petition
for certiorari to review said judgment is already submitted for
decision by the Supreme Court, are obviously and manifestly late,
beyond the period prescribed under x x x Section 2, Rule 12 of the
Rules of Court (now Sec. 2, Rule 19, 1997 Rules of Civil Procedure).
But Rule 12 of the Rules of Court, like all other Rules therein
promulgated, is simply a rule of procedure, the whole purpose and
object of which is to make the powers of the Court fully and
completely available for justice. The purpose of procedure is not to
thwart justice. Its proper aim is to facilitate the application of justice
to the rival claims of contending parties. It was created not to hinder
and delay but to facilitate and promote the administration of justice. It
does not constitute the thing itself which courts are always striving to
secure to litigants. It is designed as the means best adopted to
obtain that thing. In other words, it is a means to an end.
The denial of the motions for intervention arising from the strict
application of the Rule due to alleged lack of notice to, or the alleged
failure of, movants to act seasonably will lead the Court to commit an
act of injustice to the movants, to their successors-in-interest and to
all purchasers for value and in good faith and thereby open the door
to fraud, falsehood and misrepresentation, should intervenors claims
be proven to be true.

After all, the intervention does not appear to have been filed to delay
the proceedings. On the contrary, it seems to have expedited the
resolution of the case as the incidents brought forth by the
intervention, which could have been raised in another case, were
resolved together with the issues herein resulting in a more thorough
disposal of this case.
WHEREFORE, the Decision of respondent Court of Appeals dated
22 May 1990 and its Resolution dated 6 September 1990, which
affirmed the Decision of the RTC-Br. 89, Quezon City, dated 20
November 1987, are AFFIRMED.
SO ORDERED.
MIGUEL
FABIE
Y
GUTIERREZ, petitioner-appellee,
vs.
JULITA LICHAUCO, AND THE CHILDREN OF FRANCISCO L.
ROXAS, respondents-appellants.
MAPA, J.:
This is an appeal from a judgment of the Court of Land Registration.
The petitioner applied for the registration of his property, situated at
22 Calle San Jacinto, district of Binondo, Manila, free from all
incumbrances, with the exception of an easement of right of way
which he recognizes as existing in favor of the estates of the
respondents Lichauco and Hijos de Roxas, which adjoin the property
of the petitioner on the right and left of its entrance, respectively. In
addition to the said easement of rigth of way the respondents claim
that of light, view, and drainage in favor of their respective properties;
said claim was modified in part during the course of the litigation as
far as it referred to Julita Lichauco, who finally reduced her
opposition (fol. 138) to the easement of right of way and of light and
view.
In the judgment appealed from it is held that the easement of right of
way exits in favor of the respective properties of Julita Lichauco and
Hijos de Roxas, and the latter are further entitled to the easement of
drainage. The claim of both respondents as to other easements was
dismissed.
(a) Opposition made by Julita Lichauco. This opponent invokes as
the only legal foundation for her claim the provisions of article 541 of
the Civil Code. The language of said provisions is as follows:

The existence of an apparent sign of an easement between of two

estates established by the owner of both shall be considered should
one of them be alienated, as a title, in order that the easement may
continue actively and passively, unless, at the time of the division of
the ownership of both estates, the contrary should be expressed in
the instrument of alienation of either of them or if said sign is
removed before the execution of the instrument.
It is alleged by Lichauco, as a material fact for applying the above
legal provision, that her property, as well as that of the petitioner,
came from Juan Bautista Santa Coloma, the original owner of both
estates, who, at the time of constructing them, establish upon the
latter estate, not only an easement of right of way, which the
petitioner admits, but also the easement of light and view which he
claims; and that when both properties were alienated that of
petitioner on the 28th of November, 1848, and that of the
respondents (Julita Lichauco) on the 31st of October of the same
year, the apparents sign of the existence of said easement was not
removed, nor was it expressed in the instrument of the alienation of
the estates that such easement should be abolished.
The apparent sign of the easements claimed in this case is made to
consists of a gallery with windows through which light is admitted. In
her written opposition Lichauco states that the said gallery is
supported on columns erected on the ground belonging to the
petitioner, and on the first page of her brief submitted to this court
she again states that the balcony of her building is supported by
uprights erected on land owned by the petitioner.
The parties to the suit having admitted the actual existence of the
aforesaid gallery, the question now to be decided is whether or not it
existed when the ownership of the two estates of Juan Bautista
Santa Coloma was divided by the alienation of the one which now
belongs to the respondent (Lichauco) and which was the first sold on
October 31, 1848.
The instrument of sale (fol. 78) presented by said respondents
contains a description of said house such as it was at that time and
after setting forth the boundaries thereof, state that the house is built
of stone and mortar, and that it is erected upon the lot of the owner,
and has a frontage of twenty and one fourth varas and three and a
half inches, with a depth of thirty one and one fourth varas.
Converting the varas into meters and disregarding the centimeters, it
results that said house had a frontage of 16 meters, equivalent to

that twenty and one fourth varas and three and a half inches stated
in the instrument when it was alienated for the first time in October,
1848. Twenty years thereafter that is, on the 13th of September,
1869 the house was surveyed and appraised by Achitect Luciano
Oliver at the request of the person who then owned it, and in the
certificate issued by the said architect, (fol. 94) it is set forth that the
house measures 16 meters on the front facing Calle San
Jacinto which confirms and corroborates the measurement stated in
the aforesaid instrument. Now then, according to the plan on folio
137, Exhibit I of the respondent (Lichauco), the house was now a
frontage of 18 meters and 60 centimeters, of which 16 meters and 60
centimeters correspond to the main part of the same, and 1 meter
and 90 centimeters to the gallery in question. It results, therefore,
that at the present day, the house has nearly 2 meters more frontage
than when it was alienated by Santa Coloma, the original owner
thereof, or rather by the executors of his estate on the 31st of
October, 1848.
According to this it is evident that the frontline of the house was
increased by about 2 meters after the same was sold by Santa
Coloma and it also seems clear to us that it is the gallery mentioned
above which constitutes the increase, both because it measures 1
meter and 90 centimeters, which, with a difference of a few
centimeters, exactly represents such excess, and because it has
neither been alleged nor claimed by the said respondent, that the
rest which froms the main part of the house has suffered and
alteration in its frontage since the year 1848.
There is furthermore another detail in support of said conclusion. As
stated by the respondent, the gallery is supported by columns
erected on the lot of the petitioner, so that it is not merely a body
projecting over the said lot without materially resting thereon but a
construction erect and having foundations in the lot of the petitioner
inasmuch as the columns that support the said gallery are planted
therein. Therefore, at the present day the house is erected partly on
the land belonging to the owner and partly, the gallery, over a lot
belonging to another; that is, over that of the petitioner. When it was
sold in October, 1848, no portion of the house occupied the lot last
mentioned, but the entire building was erected over a lot belonging to
the owner as set forth in the instrument of sale.
To the foregoing considerations the following may be added in
conclusion: In view of the fact that the two buildings namely, that

of the petitioner and that of the respondent originally belonged to

the same owner, and on the supposition that the gallery did already
exist and that as stated, it is supported on columns erected in the lot
now owned by the petitioner, it is not an easy matter to explain how it
was that when the ownership of the two properties was separated
the house of the respondent, of which the said gallery forms a part,
was sold to one person while the lot over which the said gallery is
erected or in which its columns are imbedded was sold to a different
person. It would be a logical and natural thing to suppose that in the
sale of the gallery the land occupied by the same would have been
included in order to avoid the division of the ownership of the ground
and the superficies, that it is, the lot and that which is erected upon it.
The necessity for such division does not appear nor can any
reasonable justification therefore be discovered in the present case.
On the other hand, in none of the numerous papers presented by the
respondent is their any mentioned made of the gallery in question,
notwithstanding the fact that in some of them the house of the
respondent (Lichauco) is minutely described and it does not seem
that this is due to mere carelessness or inadvertence, or that it was
considered unnecessary to mention such gallery, inasmuch as
deliberate, careful, and repeated mention is made of the other gallery
on the side of the house facing the street, as may be seen from
several of the other documents above alluded to, among which are
the certificate issued by architect Luciano Oliver, on September 13,
1869, (fol. 94) the instrument of sale executed in favor of Manuel
Gonzalez Junquito (fol. 104), and the mortgage deed of the same
date in favor of the Obras Pias (fol. 116). In each of the said
documents the statement is made that the house has a corridor
supported on columns on Calle San Jacinto, while nothing is said,
even incidentally, regarding the other corridor or gallery that now
exists over the lot of the petitioner. In our opinion there is no reason
why in the description of the house has made by various persons at
different times, mentions should always have been made of only one
of the galleries, the other been entirely ignored, if both had really
existed on the respective dates of the documents above referred to.
And it is useless to say, as argued by the respondent in her brief, that
Architect Oliver's certificate, on which the description made in the
subsequent documents was taken, contained but a superficial
description of the property without details of its four sides. For said
reason she states that the fact that no mention is made of the

balcony or gallery in question is of no importance, as the said

certificate deals with the value of the property only, it being well
known that such a work is performed taking into account all the
details and circumstances which may increase or decrease the value
of the same. Hence, the respondents goes on to sale, that mention
was made, by said architect of the veranda facing the street for the
purpose of distinguishing between the one built on private land and
the one which built over land belonging to the city. For the very same
reason she should have mentioned also the veranda built over the lot
of the petitioner, if it had been in existence specially has the value
erected on land belonging to the owner is not the same as that which
is constructed on land owned by another person. The omission of
this detail in such a document wherein in order to omit nothing
mention is even made of a well and stable both of which are
unimportant portions of a building; such an omission, we say, added
to the reasons given above, induces us to come to the conclusion, as
a result of the documentary evidence adduced at the trial, that the
gallery in question did not exist at the time when the house of the
respondent was alienated by its original owner, Santa Coloma, in
October, 1848.
This conclusion is not weakened by the expert testimony offered by
the respondent, the only testimony which she introduced aside from
the documentary evidence already mentioned. As the judgment
appealed from properly states, even if the forty or fifty years of
existence of the house referred to, according to the unanimous
reckoning of the experts offered by said party is accepted, yet, we do
not reach the year 1848, more than fifty-seven years back, when the
separation of the ownership of said house and that of the petitioner
took place; such date constitutes the essential and culminating point
of the question. Moreover, it does not appear that said experts, who,
among, other things, base their opinion on the conditions of the
building and its materials, have made a careful and sufficient
examination and survey of the latter. This is evidenced by the fact
that one of them, Enrique Lafuente, states, on folio 146, that the
columns which support the gallery facing the street are built of stone,
and that those of the other gallery over the lot of petitioner are of
wood; while according to another, Ramon Herrera Davilla, (fol. 152)
both sets of columns are built of stone, and the third, Jose Perez
Siguenza (fol. 157), affirms that they are all about of wood, those

facing the street as well as those embedded in the land of the

petitioner.
Furthermore, all the experts discuss and reason, and render their
opinion as if the house was in the same condition as when sold by
Santa Coloma in 1848, when it seems certain and unquestionable
that long after the said year it underwent, or must have undergone,
very important repairs of an essential nature. This is shown by the
letter written by Manuel Gonzalez Junquito, who owned it the time, to
his attorney in fact under date if March 25, 1889, and was
incorporated in the instrument of sale executed by said attorney in
fact of the owner in favor of the respondent. In said letter Junquito
states that the house was converted into a heap of ruins, and
that (undoubtedly for the said reason) during the three years it had
not yielded him a single cent; for this reason he prayed his said
attorney to see the way to sell in by all means at the best price
obtainable ... it was thus that the said house in which, as stated by
Junquito on the same letter, had cost him P15,000 was sold to the
respondent for only eight thousand. If in 1889 the house was a heap
of ruins, it seems to us to hazardous to certify solely in view of its
present condition, after under going repairs or having been
practically rebuilt, the real condition in which it was in 1848 that is,
forty years before it became ruined specially seems, as the
petitioners expert properly states, in the repair or rebuilding of the
property old or used materials may have been employed which
would give it the appearance of being older than it actual use.
The respondent states in her brief, as though intending to prove the
great antiquity of the gallery in question, that, notwithstanding the
fact that the petitioner acquired his property before she acquired the
adjoining building, he has been able to testify that the said gallery
was built by Junita Lichauco or by her predecessor after he had
purchased his property, nor has it been proven that since that time or
at any time previous thereto there had been any disagreement
between the owners of the two properties of account of the gallery in
question. Such allegation absolutely lacks foundation, (1) because it
is not true that the petitioner acquired his property prior the time
when Junita Lichauco acquired hers, but entirely on the contrary
seems the petitioner purchased his property on the 9th of May, 1894,
and the respondent acquired hers on the 25th of October, 1889, that
is, five years previously; and (2) because the burden is not on the
petitioner to prove on what time the gallery in controversy was

constructed inasmuch as he limits himself to sustaining and

defending the freedom of his property, denying the easement of light
and view of the respondent pretends to impose over it. It is a settled
doctrine of law that a property is assumed to be free from all
incumbrance unless the contrary is proved. (Decisions of the
Supreme Court of Spain of April 7, 1864, and December 13, 1865.)
The respondent who claims the said easement, basing her claim on
the provision of article 541 of the Civil Code, is obliged to prove the
aforementioned gallery, in which the apparent sign of the easement
is made to consist in the present case, existed at the time the
ownership of her property and that of the petitioner were separated,
in October, 1848. And inasmuch as this issue has not been proved,
the claim of the respondents as to the easements of the light and
view which the petitioner does not admit, must of necessity be
dismissed.
(b) Opposition of heirs of Francisco L. Roxas. The real terms of this
opposition do not appear well defined. As the Court of Land
Registration says in the judgment appeal from, when this party
appeared at the trial stated (fol. 71) that it had no opposition to offer
and only desired that the matter of the easement of right of way,
acknowledged by the petitioner, be clearly established, and that the
other rights of easement which their property holds over the former
be respected, not specifying, however, neither at the time or during
the course of the proceedings as to which of said easements they
referred when appealing. Hence the question raised by these
respondents do not appear as clearly determined.
In the absence of due specification of the said points, and inferring in
only from the language of the agreement submitted to the parties to
the suit, the Court of Land Registration assumed that beyond the
acknowledged easement of the right of way, the respondents claimed
those of light, view, and drainage, and on such supposition entered
judgment in connection with said easements only. Upon moving for a
new hearing the respondents alleged as a foundation therefore, as
stated in the overruling thereof (p. 9 of the bill of exceptions), that the
easement with reference to balcony had not been acknowledged,
and now in setting forth their injuries before this court they speak to
the eaves ...
Admitting, the sake of argument, that all of the above questions were
duly set up and discussed in the court below, the fact is that in the
judgment appealed from no other easements than those with

reference to right of way and drainage from the roof have been
allowed in favor of the property of the respondents; therefore, the
easements of light, view, and balconies remain in dispute in the
present instance. The easement with reference to eaves mentioned
also in the brief of the respondents should, in our opinion, be
discarded inasmuch as it is included in this case in the easements of
drainage from the roof acknowledged in the judgment appealed from.
(p. 7 of the bill of exceptions).
The Court of Land Registration in order to dismiss the opposition
with reference to the easement of light and view bases its decision
on the fact that, the same being negative, according to article 533 of
the Civil Code, because the owner of the servient estate is prohibited
to do something which he could lawfully do if the easement did not
exist, that time of possession for prescription (and it is a matter of
prescription for the reason that respondents hold no title) should
begin to run, not from the date of the existence of the windows or
balconies, but from the day when the owner of the dominant estate,
by means of a formal act, might have prohibited the owner of the
servient estate to do something which he could properly execute if
the easement did not exist; this was never carried out by the
opponents or by their principals as agreed to by the parties at the
hearing.
In rebuttal of this portion of the judgment the respondents state in
their brief as follows:
We agree with the trial court that as a general rule the easement with
reference to view is a negative one ...; but we understand that there
are cases in which the easements is meant is positive because it
imposes on the owner of the servient estate the obligation to allow
the owner of the dominant estate to do on the property of the former
something which the latter could not lawfully do if the easement did
not exist, ... such as happens in the present case in which the
windows have a balcony projecting over the lot of the petitioner. In
the case of bar there exists the positive fact of windows with
projecting balconies opening over the land of the servient estate
which is not a right inherent to the dominion of the owner of the
dominant estate, but a real invasion of the right of another, a positive
act which limits the dominion of the owner of the servient estate
which, constituting easement, imposes on him the obligation to
permit with balconies projecting over his estate.

According to this no question is raised by the respondents as to the

legal nature of the easement of view (in their brief the easement of
light is ignored) which they acknowledge for the reason that, in
general, it is a negative one although in their opinion there are
exceptions where it acquires the nature of a positive easement,
among them, when as in the present case, view is obtained by
means of windows with balconies projecting over the adjoining
estate. On page 4 of their brief they state that the latter facts was
agreed to by the parties, which is tacitly contradicted by the petitioner
when denying, on page 14 of his brief, that the word balconies was
used in the agreement as synonymous with projecting windows and
differing from windows, for although, according to the said
agreement, they overlook the lot of the petitioner, they are not,
however, over the same, nor is the contrary claimed in connection
therewith by the representative of the respondents.
In reference to the above question the said agreement of facts reads
as follows:
(1) That house No. 114, Calle San Jacinto, district of Binondo, this
city, owned by the children of Francisco L. Roxas, adjoining the
property of the petitioner, underwent alteration in the early part of the
year 1882, and ever since that time it exists as it appears now with
windows and views overlooking the lot of the petitioner, with
balconies and eaves from which rainfall drops on the aforesaid lot.
It seems evident under the terms of this agreement, that the house of
the respondents has balconies, it being immaterial for our point of
view that the word balconies be taken as synonymous with widows
or projections, since whether it be the one or the other the truth is
that the agreement does not state that such balconies are over the
lot of the petitioner or overlooking over it, as claimed by the
respondents. Neither would this follow from the mere fact that the
said balconies jut out, because the projecting parts of a building may
be constructed, and as a matter of fact they are generally
constructed, over the area of their own ground without invading the
limits of the adjoining length. What actually falls over the estate of
the petitioner according to the agreement is the water dropping from
theprojecting eaves of the respondents' house, which is precisely the
fact that has originated the easement of drainage from the roof
acknowledged in favor of said house; projecting eaves, thus the
agreement reads, from which part of each water falls on said lot.
Notwithstanding the fact that word eaves, in the language of the

agreement, is preceded by the word balconies, upon both being

united by the copulative conjunction and, it becomes evident that
words in italics do not refer nor could they refer to the balconies for
the simple reason that their object is not to shed the water, a thing
which, on the contrary, is done by the eaves.
And that it is the water and not the balconies of the house of the
respondents which falls over or overlooks the lot of the petitioner, is
further evidenced by the language of the other clauses of the
agreement in which the ideas are expressed with precision, from
which it may be seen that the proposition over is always in relation to
the fall of the water and not to the balconies. Thus, for example,
clause 2 reads "that it does not appear if the construction of said
windows, balconies, and projecting eaves, as well as that part of the
water from the roof of the said house, fall on the lot now owned by
Don Miguel Fabie ...." work that may obstruct the light, remove the
windows or balconies and projecting eaves of the said house which
now belongs to the children of Francisco L. Roxas, or prevent a
portion of the water from the roof of the same from falling on the lot
of Miguel Fabie..., neither has their been on the part of the said
Fabie... any act to obstruct said light or windows, preventing the
continuance of the balconies and projecting eaves, or that part of the
water from the roof of the house falling ... on his lot."
Therefore, it does not appear from the agreement which is the only
evidence we have before us, no other having been offered at the
hearing, the respondents has balconies over the land of the
petitioner; and as it is, since it has been positively shown that the
said balconies exceed the limit of the lot owned by the former, nor
less that they invade the atmospheric area of the lot belonging to the
latter, it follows that, even in accordance with the theory maintained
by the respondents with which on account of its lack of basis, we
consider it unnecessary to deal herein as to its other aspect, the
easement of view, which might result in such case from the existence
of the balconies alluded to, would be negative and not a positive one,
because the erection of the same would not constitute, according to
their own statement, an invasion of the right of another, but the lawful
exercise of the right inherent to the dominion of the respondents to
construct within their own lot. And as said easement is negative, it
cannot have prescribed in favor of the property of the respondents in
the absence of any act of opposition, according to the agreement, by
which they or their principals would have prohibited the petitioner or

his principals to do any work which obstruct the balconies in

question, inasmuch as said act of opposition is what constitutes the
necessary and indispensable point of departure for computing the
time required by law for the prescription of negative easements (Art.
538, Civil Code).
After the foregoing it is not necessary to say anything further to show
the impropriety of the claim of the respondents in connection with the
other easement of balconies (projiciendi). They claim this easement
on the supposition that the balconies of the house are or
look over the lot of the petitioner; therefore, considering that this fact

has not been proven as shown therefor, said pretension fails and
cannot prosper in any way. It is unnecessary to discuss the questions
of law to which said fact might give rise had it been duly proven at
the hearing.
For the reason above set forth, the judgment appealed from is
affirmed in all its parts with the costs of this instance against the
appellants. So ordered.