Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-7012 March 26, 1913

THE ILOILO ICE AND COLD STORAGE COMPANY, plaintiff-appellee,

vs.
THE MUNICIPAL COUNCIL OF ILOILO, ET AL., defendants-appellants.

Juan de Leon, Quirico Abeto, and Crecenciano Lozano, for appellants.

Bruce, Lawrence, Ross and Block, for appellee.

TRENT, J.:

According to the pleadings, the plaintiff, upon authority granted by the defendant,
constructed an ice and cold storage plant in the city of Iloilo. Some time after the plant had
been completed and was in operation, nearby residents made complaints to the defendant
that the smoke from the plant was very injurious to their health and comfort. Thereupon
the defendant appointed a committee to investigate and report upon the matters
contained in said complaints. The committee reported that the complaints were well-
founded. The defendant counsel then passed a resolution which reads in part as follows:

That after the approval by the honorable provincial board of this resolution, a
period of one month will be granted to the said entity. The Iloilo Ice and Cold
Storage Company, in which to proceed with the elevation of said smokestacks, and if
not done, the municipal president will execute the order requiring the closing or
suspension of operations of said establishment.

Upon receipt of this resolution and order, the plaintiff commenced this action in the Court
of First Instance to enjoin the defendant from carrying into effect the said resolution. The
fifth paragraph of the complaint is as follows:

That the defendants intend and threaten to require compliance with said resolution
administratively and without the intervention of the court, and by force to compel
the closing and suspension of operations of the plaintiff's machinery and
consequently of the entire plant, should the plaintiff not proceed with the elevation
of the smokestacks to one hundred feet, which the plaintiff maintains it is not
obliged to do and will not do.

Upon notice and after hearing, a preliminary injunction was issued. Subsequently thereto
the defendant answered, admitting paragraphs 1 and 4 and denying all the other
allegations in the complaint, and as a special defense alleged:
 1. xxx xxx xxx.

2. That the factory of the plaintiff company stands in a central and populated district
of the municipality;

3. That the quantity of smoke discharged from the smokestacks of said factory is so
great and so dense that it penetrates into the dwelling houses situated near it and
causes great annoyance to the residents and prejudice to their health;

4. That the municipal board of health of the city has reported that the smoke
discharged from the smokestacks of said factory is prejudicial and injurious to the
public health;

5. That the plaintiff company has no right to maintain and operate machinery in its
factory under the conditions which it is at present operating the same, without
complying with the regulations which were imposed upon it when the license for its
installation was granted, because it thereby violates the ordinances of the city now
in force upon the matter.

Wherefore, the defendant prays that it be absolved from the complaint and the plaintiff be
declared to have no right to the remedy asked, and that the preliminary injunction issued
in this case be set aside, with the costs against the plaintiff.

The plaintiff demurred to this answer upon the following grounds:

1. That the facts alleged in the answer do not constitute a defense; and

2. That the answer is vague and ambiguous and contains arguments and conclusions
of law instead of facts.

This demurrer was sustained, the court saying:

The defendant will amend his answer within five days or the injunction will be
permanently granted as prayed for, with costs to the defendant.

To this order the defendant excepted and, not desiring to amend its answer, appealed to
this court.

It is alleged in paragraph 1 that both the plaintiff and the defendants are corporations duly
organized under the laws of the Philippine Islands; and paragraph 4 sets forth the
resolution complained of, the dispositive part of which is inserted above. The allegations
in paragraph 2, 3, 5, 6, 7, and 8, which are specifically denied in the answer, all (except the
fifth) relate to the building of the plant under authority granted by the defendant, the cost
of its construction, the legality of the resolution in question, the power of the defendant to
pass such resolution, and the damages which will result if that resolution is carried into
effect. As before stated, the allegations in paragraph 5 to the effect that the defendants
intend and are threatening to close by force and without the intervention of the courts the
plaintiff's plant is specifically denied. The issue in this case, according to the pleadings,
relates to the power of the municipal council to declare the plant of the petitioner a
nuisance as operated, and the method of abating it.

The municipal council is, under section 39 (j) of the Municipal Code, specifically
empowered "to declare and abate nuisances." A nuisance is, according to Blackstone, "Any
thing that worketh hurt, inconvenience, or damages." (3 Black. Com., 216.) They arise from
pursuing particular trades or industries in populous neighborhoods; from acts of public
indecency, keeping disorderly houses, and houses of ill fame, gambling houses, etc. (2
Bouv., 248; Miller vs.Burch, 32 Tex., 208.) Nuisances have been divided into two classes:
Nuisances per se, and nuisances per accidens. To the first belong those which are
unquestionably and under all circumstances nuisances, such as gambling houses, houses
of ill fame, etc. The number of such nuisances is necessarily limited, and by far the greater
number of nuisances are such because of particular facts and circumstances surrounding
the otherwise harmless cause of the nuisance. For this reason, it will readily be seen that
whether a particular thing is a nuisance is generally a question of fact, to be determined in
the first instance before the term nuisance can be applied to it. This is certainly true of a
legitimate calling, trade, or business such as an ice plant. Does the power delegated to a
municipal council under section 39 (j) of the Municipal Code commit to the unrestrained
will of that body the absolute power of declaring anything to be a nuisance? Is the decision
of that body final despite the possibility that it may proceed from animosity or prejudice,
from partisan zeal or enmity, from favoritism and other improper influences and motives,
easy of concealment and difficult to be detected and exposed? Upon principle and
authority, we think it does not.

In Rutton vs. City of Camden, 39 N.J.L., 122, 129; 23 Am. Rep. 203, 209, the court said:

The authority to decide when a nuisance exists in an authority to find facts, to

estimate their force, and to apply rules of law to the case thus made. This is the
judicial function, and it is a function applicable to a numerous class of important
interests. The use of land and buildings, the enjoyment of water rights, the practice
of many trades and occupations, and the business of manufacturing in particular
localities, all fall on some occasions, in important respects, within its sphere. To say
to a man that he shall not use his property as he pleases, under certain conditions, is
to deprive him pro tanto of the enjoyment of such property. To find conclusively
against him that a state of facts exists with respect to the use of his property, or the
pursuit of his business, which subjects him to the condemnation of the law, is to
affect his rights in a vital point. The next thing to depriving a man of his property is
to circumscribe him in its use, and the right to use property is as much under the
protection of the law as the property itself, in any other aspect, is, and the one
interest can no more be taken out of the hands of the ordinary tribunal than the
other can. If a man's property cannot be taken away from him except upon trial by
 jury, or by the exercise of the right of eminent domain upon compensation made,
neither can be, in any other mode, be limited in the use of it. The right to abate
public nuisances, whether we regard it as existing in the municipalities, or in the
community, or in the land of the individual, is a common law right, and is derived, in
every instance of its exercise, from the same source — that of necessity. It is akin to
the right of destroying property for the public safety, in case of the prevalence of a
devastating fire or other controlling exigency. But the necessity must be present to
justify the exercise of the right, and whether present or not, must be submitted to a
jury under the guidance of a court. The finding of a sanitary committee, or of a
municipal council, or of any other body of a similar kind, can have no effect
whatever for any purpose, upon the ultimate disposition of the matter of this kind. It
cannot be used as evidence in any legal proceeding, for the end of establishing,
finally, the fact of nuisance, and if can be made testimony for any purpose, it would
seem that it can be such only to show that the persons acting in pursuance of it were
devoid of that malicious spirit which sometimes aggravates a trespass and swells
the damages. I repeat that the question of nuisance can conclusively be decided, for
all legal uses, by the established courts of law or equity alone, and that the
resolutions of officers, or of boards organized by force of municipal charters, cannot,
to any degree, control such decision.

The leading case upon this point is Yates vs. Milwaukee, (10 Wall., 497; 19 L. ed., 984). The
following quotation from this case has been cited or quoted with approval in a great
number of cases. (See Notes to this case in 19 L. ed., Notes, page 356.)

But the mere declaration by the city council of Milwaukee that a certain structure
was an encroachment or obstruction did not make structure was an encroachment
or obstruction did not make it so, nor could such declaration make it a nuisance
unless it in fact had that character. It is a doctrine not to be tolerated in this country,
that a municipal corporation, without any general laws either of the city or of the
State, within which a given structure can be shown to be a nuisance, can, by its mere
declaration that it is one, subject it to removal by any person supposed to be
aggrieved, or even by the city itself. This would place every house, every business,
and all the property of the city at the uncontrolled will of the temporary local
authorities. Yet this seems to have been the view taken by counsel who defended
this case in the circuit court; for that single ordinance of the city, declaring the wharf
of Yates a nuisance, and ordering its abatement, is the only evidence in the record
that it is a nuisance or an obstruction to navigation, or in any manner injurious to
the public.

In Cole vs. Kegler (64 la., 59, 61) the court said:

We do not think the general assembly intended to confer on cities and towns the
power of finally and conclusively determine, without notice or a hearing, and
without the right of appeal, that any given thing constitutes a nuisance, unless,
 probably, in cases of great emergency, so strong as to justify extraordinary
measures upon the ground of paramount necessity. The law does not contemplate
such an exigency, and therefore does not provide for it. If it did, it would no longer
be the undefined law of necessity. (Nelson, J., in The People vs. The Corporation of
Albay, 11 Wend., 539.)

Nuisance may be abated by an individual, but they must in fact exist, The
determination of the individual that a nuisance exists does not make it so, and if he
destroys property on the that it is a nuisance, he is responsible, unless it is
established that the property destroyed constituted a nuisance. This precise power,
and no more, is conferred by the statute on cities and towns. In Wood on Nuisances,
section 740, it is said: "If the authorities of a city abate a nuisance under authority of
an ordinance of the city, they are subject to the same perils and liabilities as an
individual, if the thing in fact is not nuisance."

In Grossman vs. City of Oakland (30 Ore., 478, 483) the court said:

In our opinion this ordinance cannot be sustained as a legitimate exercise of

municipal power. The character of the city confers upon it the power to prevent and
restrain nuisances, and to "declare what shall constitute a nuisance;" but this does
not authorize it to declare a particular use of property a nuisance, unless such use
comes within the common law or statutory idea of a nuisance. (2 Wood on
Nuisances (3d ed.), 977; Yates vs.Milwaukee, 77 U.S. (10 Wall.), 497; Village of Des
Plaines vs. Poyer, 123 Ill., 348; 5 Am. St. Rep., 524; 14 N.E., 677; Quintini vs. City
Board of Aldermen, 64 Miss., 483; 60 Am. Rep., 62; 1 So., 625; Chicago & Rock
Islands R.R. Co. vs. City of Joliet, 79 Ill., 44; Hutton vs. City of Camden, 39 N.J. Law,
122; 23 Am. Rep., 203.) By this provision of the charter the city is clothed with
authority to declare by general ordinance under what circumstances and conditions
certain specified acts or things injurious to the health or dangerous to the public are
to constitute and be deemed nuisances, leaving the question of fact open for judicial
determination as to whether the particular act or thing complained of comes within
the prohibited class; but it cannot by ordinance arbitrarily declare any particular
thing a nuisance which has not heretofore been so declared by law, or judicially
determined to be such. (City of Dener vs. Mullen, 7 Colo., 345).

In Western & Atlantic R. Co. vs. Atlanta (113 Ga., 537, 551), after an extensive review of the
authorities, the court, per Lumpkin, J., said:

It is our opinion that the provisions of our code require, when a municipal
corporation is seeking to abate a nuisance such as it was alleged the floor of the
union passenger station was in this case, that the parties interested be given
reasonable notice of the time and place of hearing at which the fact whether the
property complained of is or is not a nuisance shall be inquired into and
determined; that, without such notice and a judgment on the facts by the body
 invested with power to abate the nuisance, it is unlawful to enter thereon and
remove or destroy it as a nuisance. If the thing, as we said, is declared by law to be a
nuisance, or if it is unquestionably a nuisance, such as a rabid dog, infected clothing,
the carcass of a dead animal on a private lot, the presence of a smallpox patient on
the street, it may be abated by the municipal authorities at once, by order, from the
necessity of the case, and to meet an emergency which exists, to at once protect the
health and lives of the people.

In Everett vs. City of Council Bluffs (46 Ia., 66, 67), where the council passed an ordinance
declaring trees on certain streets to be a nuisance and ordering the marshall to abate the
same, the court held:

The defendant is incorporated under a special charter, which provides that the city
council has power "to declare what shall be a nuisance, and to prevent, remove, or
abate the same." This general grant of power, however, will not authorize the
council to declare anything a nuisance which is not such at common law, or has been
declared such by statute.

In Frostburg vs. Wineland (98 Md., 239, 243) the court said:

The first question, then, in the case revolves itself to this, was the summary
proceeding of the appellants in declaring the two trees in front of the appellee's
property to be a nuisance and an obstruction to the paving and curbing of the street,
and directing them to be removed and destroyed, so far final as not to be reviewable
by the Courts?

This question we think was in effect settled by this court in the recent cases of New
Windsor vs. Stocksdale (95 Md., 215) and King vs. Hamil (97 Md., 103). In the latter
case it is said that equity will not lend its aid to enforce by injunction the by-laws or
ordinances of a municipal corporation, restraining an act, unless the act is shown to
be a nuisance per se. . . .

It is clear, we think, both upon reason and authority, that when a municipality
undertakes to destroy private property which is not a nuisance per se, it then
transcends its powers and its acts are reviewable by a court of equity.

In C.R.I. & P.R. Co. vs. City of Joilet (79 Ill., 25, 44) the court said:

As to the ordinance of the common council of the city of Joilet, of September, 1872,
declaring the railroad a nuisance, we regard that as without effect upon the case,
although the charter of the city confers upon the common council the power to
abate and remove nuisances, and to punish the authors thereof, and to define and
declare what shall be deemed nuisances. We will, in this respect, but refer to the
language of the Supreme Court of the United State in Yates vs. Milwaukee (10 Wall.,
505). (See supra.)
In the leading case of Denver vs. Mullen (7 Colo., 345, 353) where an extended review of
the authorities is made, the court said:

The basis of authority for the action of the city in the premises is made to rest upon
certain provisions of the city charter, and certain ordinances, which are set out as
exhibits in the testimony; and the following, among other of the enumerated powers
conferred by the legislature upon the city, in said charter, is relied upon, viz: "To
make regulations to secure the general health of the inhabitants, to declare what
shall be a nuisance, and to prevent and remove the same."

The proper construction of this language is that the city is clothed with authority to
declare, by general ordinance, what shall constitute a nuisance. That is to say, the
city may, by such ordinance, define, classify and enact what things or classes of
things, and under what conditions and circumstances, such specified things are to
constitute and be deemed nuisances. For instance, the city might, under such
authority, declare by ordinance that slaughter-houses within the limits of the city,
carcasses of dead animals left lying within the city, goods, boxes, and the like, piled
up or remaining for certain length of time on the sidewalks, or other things injurious
to health, or causing obstruction or danger to the public in the use of the streets and
sidewalks, should be deemed nuisances; not that the city council may, by a mere
resolution or motion, declare any particular thing a nuisance which has not
theretofore been pronounced to be such by law, or so adjudged by judicial
determination. (Everett vs. Council Bluffs, 40 Iowa, 66; Yates vs. Milwaukee, 10 Wall.,
497.) No law or ordinance, under which the city council assumed to act in respect to
this ditch, has been cited which defines nuisance, or within the meaning of which
such ditch is comprehended.

xxx xxx xxx

It is only certain kinds of nuisances that may be removed or abated summarily by

the acts of individuals or by the public, such as those which affect the health, or
interfere with the safety of property or person, or are tangible obstructions to
streets and highways under circumstances presenting an emergency; such clear
cases of nuisances per se, are well understood, and need not to be further noticed
here to distinguish them from the case before us. If it were admitted that this ditch,
by reason of its obstruction to the use of the public streets, at the time of the acts
complained of, was a nuisance, it must also be admitted that it was not a
nuisance per se. It was constructed for a necessary, useful and lawful purpose, was
used for such purpose, and therefore in its nature was not a nuisance, as a matter of
law. Nor as a matter of fact was it a nuisance while it was no hurt, detriment, or
offense to the public, or to any private citizen. If, then, it has become a nuisance, it is
by reason of a change of circumstances brought about neither by the ditch itself, nor
its use. Indeed, the sole matter complained of, to warrant its being regarded as a
nuisance, is the absence of bridges at street crossings. The town has become
 populous; its growth has extended beyond the ditch and along its line for a great
distance; streets laid out across its course have come to be traveled so much, that
without bridges, the ditch, as appears by the testimony, has become inconvenient,
detrimental, and an obstruction to the full, safe and lawful use of such streets as
highways by the public. To this extent, and from these causes outside the ditch and
its use per se, has the ditch come to be a public nuisance, if, as a matter of fact, it is
such. But whether it is such or not is a fact which must first be ascertained by
judicial determination before it can be lawfully abated, either by the public or by a
private person.

In Joyce vs. Woods (78 Ky., 386, 388) the court said:

There was no judicial determination that there was a nuisance, and no opportunity
offered the owner of the lot to contest that matter. Under the exercise of the police
power, it may be conceded that municipalities can declare and abate nuisances in
cases of necessity, without citation and without adjudication as to whether there is
in fact a nuisance. But whenever the action of the municipality in declaring and
abating a nuisance goes so far as to fix a burden upon the owner of the property, he
is entitled to be heard upon the question as to the existence of the nuisance. This
right to a hearing upon this question may come before or after the nuisance is
abated, as circumstances may require, but there must be an opportunity offered him
to be heard upon that matter before his property can be loaded with the cost of the
removal of the nuisance. To the extent that property is thus burdened by the action
of the city council, when there is no necessity to precipitate action without
adjudication, the owner is deprived of his property, regardless of "the law of the
land." The meaning of that provision of the constitution has generally been
construed to be a law that hears before condemning, and arrives at a judgment for
the divestiture of the rights of property through what is ordinarily understood to be
judicial process — the general rules that govern society in reference, to the rights of
property; and it is only in extreme cases, where the preservation and repose of
society or the protection of the property rights of a large class of the community
absolutely require a departure, that the courts recognize any exception. In this case
there is no pretense of a necessity for precipitate action. There is no reason why
appellant should not have been permitted to test the question as to the existence of
the nuisance.

In Everett vs. Marquette (53 Mich., 450, 451) the court, per Cooley, J., said:

But it is not necessary in this case to determine whether the permission given by the
village council was in due form for the purposes of a permanent appropriation, or
even whether the council had the power to consent to such an appropriation. It is
undoubted that the council had general control of the streets under the village
charter; and it was a part of its duty to prevent the creation of any public nuisance
within them. It is not to be assumed that consent would have been given to such a
 nuisance, and when, by formal resolution the council assumed to give permission to
complainant to make the openings and build the stairways complained of, it must
have been done in the belief that no public inconvenience would follow. If the
permission was effectual for no other purpose, it at least rebutted any presumption
which might otherwise have existed, that this partial appropriation of the street
was per se a nuisance.

If the permission was a mere license, and the subsequent action of the city council is
to be regarded as a revocation of the license, it does not follow that the plaintiff has
by the revocation immediately been converted into a wrongdoer. The question will
then be whether the act of the complainant in maintaining his structures constitutes
a public nuisance; and while the city council is entitled, under its supervisory
control of the public streets, to consider and pass upon that question for the
purpose of deciding upon the institution of legal proceedings for abatement, it
cannot make itself the judge. Maintaining a nuisance is a public offense; and the fact,
as in other cases of alleged criminality, is to be tried on proper accusation and in the
regular courts. The mere fact that the party makes use of some part of a public street
for his private purposes does not make out the public offense. This was decided in
People vs. Carpenter (1 Mich., 273), and has never been doubted in this State.

The city in this case proceeding in an act of destruction on an assumption that the
structures were already condemned as illegal. This was unwarranted, and it was
quite right that the action should be restrained.

The above authorities are collated in Judge Dillon's work on Municipal Corporations, fifth
edition, section 684, with the following comment by the author:

It is to secure and promote the public health, safety, and convenience that municipal
corporations are so generally and so liberally endowed with power to prevent and
abate nuisances. This authority and its summary exercise may be constitutionally
conferred on the incorporated place, and it authorizes its council to act against that
which comes within the legal notion of a nuisance; but such power, conferred in
general terms, cannot be taken to authorize the extrajudicial condemnation and
destruction of that as a nuisance which, in its nature, situation, or use, is not such.

The questions discussed in this august array of authorities are exactly those of the present
case, and the controlling principles and the reasoning upon which they are founded are so
fully and lucidly set forth as to justify us in refraining from comment of our own. It is clear
that municipal councils have, under the code, the power to declare and abate nuisances,
but it is equally clear that they do not have the power to find as a fact that a particular
thing is a nuisance when such thing is not a nuisance per se; nor can they authorize the
extrajudicial condemnation and destruction of that as a nuisance which in its nature,
situation, or use is not such. These things must be determined in the ordinary courts of
law.
In the present case it is certain that the ice factory of the plaintiff is not a nuisance per se. It
is a legitimate industry, beneficial to the people, and conducive to their health and
comfort. If it be in fact a nuisance due to the manner of its operation, that question cannot
de determined by a mere resolution of the board. The petitioner is entitled to a fair and
impartial hearing before a judicial tribunal.

The respondent has, we think, joined issued by its answer denying that it was intending to
proceed with the abatement of the alleged nuisance by arbitrary administrative
proceedings. This is the issue of the present case, and upon its determination depends
whether the injunction should be made permanent (but limited in its scope to prohibiting
the closing of petitioner's factory by administrative action), or whether the injunction
should be dissolved, which will be done in case it be shown that the municipal officials
intend to proceed with the abatement of the alleged nuisance in an orderly and legal
manner.

It is said that the plaintiff cannot be compelled to build its smokestack higher if said stack
is in fact a nuisance, for the reason that the stack was built under authority granted by the
defendant, and in accordance with the prescribed requirements. If the charter or license
does not expressly subject the business or industry to the exercise of the police power by
the State, it is conceded by the great preponderance of authority that such a reservation is
implied to the extent that may be reasonably necessary for the public welfare. (Freud,
Police Power, § 361 et seq, and § 513 et seq.)

For the foregoing reasons, the order sustaining the plaintiff's demurrer to the defendant's
answer is reversed. The record will be returned to the court whence it came with
instructions to proceed with the trial of the cause in accordance with this opinion. No
costs will be allowed in this instance. So ordered.

Arellano, C.J., Torres and Moreland, JJ., concur.

Johnson, J., dissents.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-18390 December 20, 1971

PEDRO J. VELASCO, plaintiff-appellant,

vs.
MANILA ELECTRIC CO., ET AL., defendants-appellees.

RESOLUTION

REYES, J.B.L., J.:

Both appellant Velasco and appellee Manila Electric have filed their respective motions to
reconsider the decision of this Court dated 6 August 1971. For the sake of clarity, the two
motions will be here dealt with separately.

A — APPELLANT'S MOTION FOR RECONSIDERATION

The thrust of this motion is that the decision has incorrectly assessed appellant's damages
and unreasonably reduced their amount. It is first argued that the decision erred in not
taking into account, in computing appellant's loss of income, the appellant's undeclared
income of P8,338.20, assessed by the Bureau of Internal Revenue for the year 1954, in
addition to his declared income for that year (P10,975), it being argued that appellant
never claim any other source of income besides his professional earnings. Several
circumstances of record disprove this claim. (1) That the amount of P8,338.20 was kept
apart from ordinary earnings of appellant for the year 1954 (P10,975), and not declared
with it, is in itself circumstantial evidence that it was not of comparable character. (2) If it
was part of his ordinary professional income, appellant was guilty of fraud in not declaring
it and he should not be allowed to derive advantage from his own wrongdoing. (3) The
decision pointed out that by including the undeclared amount in appellant's disclosed
professional earning for 1954, to a grand total of P19,313.20, the income for said year
becomes abnormally high (in fact, more that double), as compared to appellant's earnings
for the preceding years, 1951-1953, that averaged not more that P7,000 per annum. Such
abnormality justifies the Court's refusal to consider the undisclosed P8,338.20 as part of
appellant's regular income for the purpose of computing the reduction in his earnings as a
result of the complained acts of appellee. (4) Finally, the true source of the undeclared
amount lay in appellant's own knowledge, but he chose not to disclose it; neither did he
call upon the assessing revenue officer to reveal its character.

Appellant Velasco urges that the damages awarded him are inadequate considering the
present high cost of living, and calls attention to Article 1250 of the present Civil Code, and
to the doctrines laid down in People vs. Pantoja G.R. No. L-18793, 11 October 1968, 25
SCRA 468. We do not deem the rules invoked to be applicable. Article 1250 of the Civil
Code is to the effect that:

ART. 1250. In case an extraordinary inflation or deflation of the currency

stipulated should supervene, the value of the currency at the time of the
establishment of the obligation shall be the basis of payment, unless there is
an agreement to the contrary.

It can be seen from the employment of the words "extraordinary inflation or deflation of
the currency stipulated" that the legal rule envisages contractual obligations where a
specific currency is selected by the parties as the medium of payment; hence it is
inapplicable to obligations arising from tort and not from contract, as in the case at bar,
besides there being no showing that the factual assumption of the article has come into
existence. As to the Pantoja ruling, the regard paid to the decreasing purchase of the peso
was considered a factor in estimating the indemnity due for loss of life, which in itself is
not susceptible of accurate estimation. It should not be forgotten that the damages
awarded to herein appellant were by no means full compensatory damages, since the
decision makes clear that appellant, by his failure to minimize his damages by means
easily within his reach, was declared entitled only to a reduced award for the nuisance
sued upon (Steel vs. Rail & River Coal Co., 43 Ohio App. 228,182 N.E. 552); and the amount
granted him had already taken into account the changed economic circumstances.

Nor is the fact that appellant lost a chance to sell his house for P95,000 to Jose Valencia
constitute a ground for an award of damages in that amount. As remarked in the main
decision, there is no adequate proof of loss, since there is no evidence of the depreciation
in the market value of the house in question caused by the acts of defendant Meralco The
house, after all, has remained with appellant and he admits in his motion for
reconsideration (page 48) that properties have increased in value by 200% since then.

For the foregoing reasons, the motion for reconsideration is denied.

B — APPELLEE'S MOTION TO RECONSIDER

Appellee Manila Electric Company argues that in case the noise emitted by its substation
can not be brought down to the 50 decibel level imposed by our decision in chief, the
remedy of the appellant would be to compel appellee Company to acquire and pay for the
value of the house, under the so-called doctrine of "inverse condemnation and cites in
support our doctrines in Bengzon vs. Province of Pangasinan, 62 Phil. 816, and Republic
vs. Philippine Long Distance Telephone Co., L-18841, 27 January 1969, 26 SCRA 620-634.
But as pointed out by appellant in his opposition, this issue was not raised, nor was the
inverse condemnation doctrine invoked in the trial court, so that it would be improper to
consider it on appeal, and worse still, on a motion for reconsideration of the decision on
the merits. Furthermore, there is no showing that it is impossible to reduce the substation
noise to the level decreed by this Court in the main decision. On the contrary, appellee's
own evidence is that the noise can be reduced by erecting a wall barrier on the line
separating the substation lot and the property of appellant.

The version that appellee did not erect the wall because of the objections of appellant's
wife was denied by her, and there is no preponderance of evidence in favor of appellee on
this point. Moreover, since it was appellant Dr. Velasco who complained, his wife's
objection would not suffice to constitute a waiver of his claim.

As to the petition to increase the sound level prescribed by his Court from 50 to 55
decibels on the ground that present "ambient sound already ranges from 44 to 55 decibels
in the mornings", the same can not be granted. As shown by the evidence at the trial, the
intensity of the noise emitted by appellee's transformers are most objectionable at night,
when people are endeavoring to rest and sleep in compensation for the fatigue and
tensions accumulated during daytime.

WHEREFORE, appellee's motion to reconsider is likewise denied.

Concepcion, C.J., Makalintal, Zaldivar, Castro, Fernando, Teehankee, Barredo, Villamor and
Makasiar., JJ., concur.

Footnotes

* Editor's Note: See main decision in 40 SCRA 342.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 97477 May 8, 1992

RTC JUDGE CAMILO E. TAMIN, Presiding Judge, Regional Trial Court, Branch 23,
Molave, Zamboanga del Sur and the MUNICIPALITY OF DUMINGAG, ZAMBOANGA
DEL SUR; represented by MAYOR DOMICIANO E. REAL, petitioners,
vs.
COURT OF APPEALS, VICENTE MEDINA and FORTUNATA ROSELLON, respondents.

GUTIERREZ, JR., J.:

The present petition seeks to annul and set aside the decision and resolution dated
January 21, 1991 and February 20, 1991, respectively of the Court of Appeals which
declared as null and void the October 10, 1991 order of the petitioner Judge in a civil case
"for ejectment with preliminary injunction and damages" filed by petitioner municipality
against the private respondents granting the petitioner municipality's motion for a writ of
possession and the writ issued pursuant to it.

On September 24, 1990, petitioner municipality represented by its mayor Domiciano E.

Real filed with the Regional Trial Court of Zamboanga del Sur, Branch 23, Molave, presided
by the petitioner Judge, a complaint denominated as "Ejectment with Preliminary
Injunction and Damages" against respondents Vicente Medina and Fortunata Rosellon.

The complaint alleged that the plaintiff (petitioner municipality herein) is the owner of a
parcel of residential land located at Poblacion, Dumingag, Zamboanga del Sur with an area
of 5,894 square meters more or less; that the parcel of land was reserved for public plaza
under Presidential Proclamation No. 365 dated March 15, 1968; that during the
incumbency of the late Mayor Isidoro E. Real, Sr. or in 1958, the municipality leased an
Area of 1,350 square meters to the defendants (respondents herein) subject to the
condition that they should vacate the place in case it is needed for public purposes; that
the defendants religiously paid the rentals until 1967; that thereafter, the defendants
refused to pay the rentals; that the incumbent mayor discovered that the defendants filed
a "Cadastral Answer" over said lot; that the defendants refused to vacate the place despite
efforts of the municipality; that the national government had alloted an appropriation for
the construction of a municipal gymnasium within the public plaza but the said
construction which was already started could not continue because of the presence of the
buildings constructed by the defendants; that the appropriation for the construction of the
gymnasium might be reverted back to the national government which would result to
"irreparable damage, injury and prejudice" to the municipality and its people who are
expected to derive benefit from the accomplishment of the project.

The complaint prayed:

1. That a restraining order shall be issued immediately after the filing of this
case;

2. That after due notice and hearing, a writ of preliminary mandatory

injunction shall be issued against the herein defendants for them (sic) form
further occupying the leased portion to them (sic), and/or that a Writ of
Possession be immediately issued to preserve the rights of the herein plaintiff;

3. That judgment should be entered against the herein defendants to vacate

the premises of the leased portion given to them. (CA Rollo, pp. 11-12)

On the same day, September 24, 1990, the petitioner Judge issued an order setting the
preliminary hearing for the issuance of a writ of preliminary mandatory injunction and/or
writ of possession on October 10, 1990.

Instead of filing an answer, the respondents filed a motion to dismiss alleging the lack of
jurisdiction of the trial court, since the complaint is for illegal detainer which is within the
original jurisdiction of the municipal court and the pendency of a cadastral case (Cadastral
Case No. N-10, LRC Cad. Rec. No. N-108, Lot 9481 [Pls-61] TS-218) between the parties
over the ownership of the same parcel of land.

On October 10, 1990, the petitioner Judge issued two (2) orders. The first order denied the
motion to dismiss. The second order granted the petitioner municipality's motion for a
writ of possession "with the ancillary writ of demolition to place in possession the plaintiff
on the land subject of this case, to the end that the public construction thereon will not be
jeopardized." (CA Rollo, p. 22)

In denying the motion to dismiss, the petitioner Judge said:

xxx xxx xxx

2. In the complaint, the plaintiff alleges that the defendant is claiming

ownership over the land which was previously rented to defendant by the
plaintiff municipality. This action is, therefore, clearly an accion de
reivindicacion, a real action within the jurisdiction of this court.

3. As the complaint is for recovery of ownership of the land not to enforce the
contract, the Statute of Fraud does not apply.
 4. The land subject of this case is covered by P.D. No. 365, withdrawing this
land from sale of settlement and reserving the same for school site purposes
under the administration of the Director of Public School and public plaza
under the administration of the Municipality of Dumingag, therefore the
Cadastral court has no jurisdiction over the land involved in this case.
(CA Rollo, p. 20)

The petitioner Judge justified his granting the motion for a writ of possession with the
ancillary writ of demolition by applying the rule an eminent domain (Rule 67 of the
Revised Rules of Court, erroneously referred to as Rule 68) in analogy in that under this
Rule the complainant is given the right to the writ of possession in order that public
construction and projects will not be delayed. According to the petitioner Judge, the
necessity of a writ of possession is greater in the instant case considering that the parcel
of land is covered by a Presidential Proclamation and the on-going construction thereon is
being endangered to be left unfinished on account of the buildings standing on the parcel
of land because the appropriation for the construction might be reverted back to the
national treasury.

The private respondents filed an omnibus motion for reconsideration with motion to set
aside order and to quash writ of possession and demolition but this was denied in an
order dated October 19, 1990.

On October 19, 1990, the petitioner municipality implemented the writ of possession and
ancillary writ of demolition issued by the petitioner Judge resulting in the dispossession of
the private respondents from the parcel of land and the demolition of structures and
buildings thereon owned by the respondents.

On October 23, 1990, the private respondents filed their answer to the complaint alleging
therein that the subject parcel of land has been owned, occupied and possess by
respondent Vicente Medina since 1947 when he bought the subject parcel from a Subanan
native; that the other respondent Fortunata Rosellon leased from Medina a portion of the
parcel of land; that the respondents were never lessees of the petitioner municipality; that
Proclamation No-365 issued on March 15, 1968 recognized "private rights"; and, that a
case is pending before the Cadastral court between respondent Medina and petitioner
municipality as regards the ownership of the subject parcel of land.

Before the petitioner Judge could further act on the case, the private respondents filed a
petition for certiorari with the Court of Appeals questioning the October 10 and October
19, 1990 orders of the petitioner Judge.

In a resolution dated November 14, 1990, the petition was given due course and a
temporary restraining order was issued enjoining the petitioner Judge from proceeding
with the hearing of the case and from enforcing the October 10, and 19, 1990 orders.
On January 21, 1990, the appellate court rendered the questioned decision. A motion for
reconsideration was denied in a resolution dated February 20, 1991.

Hence, this petition.

In a resolution dated November 26, 1991, we gave due course to the petition.

The appellate court rightfully upheld the jurisdiction of the Regional Trial Court over the
case based on the allegations in the complaint. The allegations and not the title control the
cause of action of the complaint. (Andamo v. Intermediate Appellate Court, 191 SCRA 195
[1990]).

The Court said:

First, Does the Regional Trial Court have jurisdiction over the case brought by
the Municipality of Dimangag? As already noted, the gist of the complaint
below is that the land in question is part of the public domain which the
President of the Philippines, under Proclamation No. 365, dated March 25,
(should be 15) 1968, reserved for school site and public plaza in the
Municipality of Dumingag and that the petitioners, to whom the former town
mayor had leased a part of the land, refused to vacate and to pay rents. If this
is the theory on which the complaint is based, then the action may really be
considered one for recovery of possession. For though a lease is alleged, the
lease would be void and the municipality could recover the possession of the
land. This is the teaching of the leading case of Municipality of Cavite v. Rojas,
30 Phil. 602 [1915] in which it was held that the lease by a municipal
corporation of a public plaza is null and void because land for public use is
outside the commerce of man and, therefore, the lessee must restore
possession of the land by vacating it. As in this case, in the Rojas case the
action was for recovery of possession instituted in the Court of First Instance,
the counterpart of which at present is the Regional Trial Court. We, therefore,
hold that the respondent judge has jurisdiction of the case brought against
petitioners for recovery of possession of what is alleged to be land for public
use of the respondent municipality. (CA Rollo, pp. 53-54)

Prescinding from the finding that the complaint is for recovery of possession the appellate
court concluded that the trial court did not have authority to issue a writ of possession
and a writ of demolition citing the case of Mabale v.Apalisok (88 SCRA 234 [1979]), to wit:

In that connection, it should be borne in mind that the law specifies when a
writ of possession may be issued. That writ is available (1) in a land
registration proceeding, which is a proceeding in rem (Sec. 17, Act No. 496;
Estipona v. Navarro, 69 SCRA 285, 291); (2) in an extra-judicial foreclosure of
a realty mortgage (Sec. 7, Act No. 3135); (3) in a judicial foreclosure of
 mortgage, a quasi in rem proceeding,provided that the mortgagor is in
possession of the mortgaged realty and no third person, not party to the
foreclosure suit, had intervened (Rivera v. Court of First Instance of Nueva
Ecija and Rupac, 61 Phil. 201; Ramos v. Mañalac and Lopez, 89 Phil. 270, 275)
and (4) in execution sales (last par. of sec. 35, Rule 39, Rules of Court).

The appellate court also ruled that the trial court committed an error when it applied by
analogy the rule on eminent domain (Rule 67, Revised Rules of Court) to justify the
issuance of the writ of possession and writ of demolition. The appellate court pointed out
that under this rule:

xxx xxx xxx

. . . (i) There is clear statutory authority for the taking of possession by the
government and (ii) The authority is premised on the government depositing
the value of the land to be taken. For unless the taking of the land is done
under these conditions, the taking would constitute deprivation of property
without due process of law which the Constitution prohibits. (See Manila
Railroad Co. v. Paredes, 31 Phil. 118 [1915]) (CA Rollo, p. 55)

The appellate court then stated:

In the case at bar, there is neither statutory authority for the trial court's
action nor bond given to compensate the petitioners for the deprivation of
their possession and the destruction of their houses if it turns out that the
land belongs to them. For this reason, we think the trial courts order is
arbitrary and void. For the fact is that petitioners claim ownership of the land
in question and until that question is resolved either in the case pending
before the respondent judge or in the cadastral proceeding, it would be unjust
to deprive petitioners of its possession. (CA Rollo, pp.
55-56)

The petitioners now contend that the allegations in the complaint constitute a cause of
action for abatement of public nuisance under Article 694 of the Civil Code. On the basis of
this proposition, the petitioners assert that petitioner municipality is entitled to the writ
of possession and writ of demolition.

Article 694 of the Civil Code defines nuisance as follows:

Art. 694. A nuisance is any act, omission, establishment, business, condition of

property or anything else which:

xxx xxx xxx

(5) Hinders or impairs the use of property.

while Article 695 provides:

Art. 695 Nuisance is either public or private. A public nuisance affects a

community or neighborhood or any considerable number of persons, although
the extent of the annoyance, danger or damage upon individuals may be
unequal. . . .

Applying these criteria, we agree with the petitioners that the complaint alleges factual
circumstances of a complaint for abatement of public nuisance. Thus, the complaint states:
that petitioner municipality is the owner of a parcel of land covered by Presidential
Proclamation No 365 which is reserved for a public plaza; that the private respondents by
virtue of a contract of lease entered into by the former mayor occupied a portion of the
parcel of land constructing buildings thereon; that the private respondents refused to
vacate the premises despite demands; that the municipality is constructing a municipal
gymnasium in the area financed by appropriations provided by the national government;
and that the appropriations are in danger of being reverted to the national treasury
because the construction had to be stopped in view of the refusal of the private
respondents to vacate the area.

The issue, however, is not the nature of the cause of action alleged in the complaint. The
more important question is whether or not the petitioner municipality is entitled to a writ
of possession and a writ of demolition even before the trial of the case starts.

Article 699 of the Civil Code provides for the following remedies against a public nuisance:

(1) A prosecution under the Penal Code or any local ordinance; or

(2) A civil action; or

(3) Abatement, without judicial proceedings.

The petitioner municipality had three remedies from which to select its cause of action. It
chose to file a civil action for the recovery of possession of the parcel of land occupied by
the private respondents. Obviously, petitioner municipality was aware that under the then
Local Government Code (B.P. Blg. 337) the Sangguniang Bayan has to first pass an
ordinance before the municipality may summarily abate a public nuisance. (Sec. 149(z)
(ee).

On the premise that the parcel of land forms part of a public plaza, the petitioners now
contend that the Judge was justified in issuing the writ of possession and writ of
demolition.

A public plaza is outside the commerce of man and constructions thereon can be abated
summarily by the municipality. We ruled in the case of Villanueva v. Castañeda, Jr. (154
SCRA 142 [1987]):
 Exactly in point is Espiritu v. Municipal Council of Pozorrubio, (102 Phil. 869-
870) where the Supreme Court declared:

There is absolutely no question that the town plaza cannot be

used for the construction of market stalls, specially of residences,
and that such structures constitute a nuisance subject to
abatement according to law. Town plazas are properties of public
dominion, to be devoted to public use and to be made available to
the public in general. They are outside the commerce of man and
cannot be disposed of or even leased by the municipality to
private parties.

Applying this well-settled doctrine, we rule that petitioners had no right in the
first place to occupy the disputed premises and cannot insist in remaining
there now on the strength of their alleged lease contracts. They should have
realized and accepted this earlier, considering that even before Civil Case No.
2040 was decided, the municipal council of San Fernando had already adopted
Resolution No. 29, series of 1964, declaring this area as the parking place and
public plaza of the municipality.

It is the decision in Civil Case No. 2040 and the said resolution of the
municipal council of San Fernando that respondent Macalino was seeking to
enforce when he ordered the demolition of the stalls constructed in the
disputed area. As officer-in-charge of the office of the mayor, he had the duty
to clear the area and restore it to its intended use as a parking place and
public plaza of the municipality of San Fernando, conformably to the
aforementioned orders from the court and the council. It is, therefore, not
correct to say that he had acted without authority or taken the law into his
hands in issuing his order.

xxx xxx xxx

The Court observes that even without such investigatiom and

recommendation, the respondent mayor was justified in ordering the area
cleared on the strength alone of its status as a public plaza as declared by the
judicial and legislative authorities. . . .

If, therefore, the allegations in the complaint are true and that the parcel of land being
occupied by the private respondents is indeed a public plaza, then the writ of possession
and writ of demolition would have been justified. In fact, under such circumstances, there
would have been no need for a writ of possession in favor of the petitioner municipality
since the private respondents' occupation over the subject parcel of land can not be
recognized by any law. A writ of demolition would have been sufficient to eject the private
respondents.
However, not only did the municipality avoid the use of abatement without judicial
proceedings, but the status of the subject parcel of land has yet to be decided.

We have to consider the fact that Proclamation No. 365 dated March 15, 1968 recognizes
private rights which may have been vested on other persons, to wit:

BY THE PRESIDENT OF THE PHILIPPINES

PROCLAMATION NO. 365

RESERVING FOR SCHOOL SITE, PUBLIC PLAZA AND PLAYGROUND PURPOSES

CERTAIN PARCELS OF LAND OF THE PUBLIC DOMAIN SITUATED IN THE
MUNICIPALITY OF DUMINGAG, PROVINCE OF ZAMBOANGA DEL SUR, ISLAND
OF MINDANAO.

Upon recommendation of the Secretary of Agriculture and Natural Resources

and pursuant to the authority vested in me by law, I FERDINAND E. MARCOS,
PRESIDENT OF THE PHILIPPINES, do hereby withdraw from sale or
settlement and under the administration of the Director of Public Schools
administration of the Municipal Government of Dumingag, subject to private
rights, if any there be, certain parcels of land of the public domain situated in
the Municipality of Dumingag, Province of Zamboanga del Sur, Island of
Mindanao, . . . (CA Rollo, pp. 41-A — 42) (Emphasis supplied).

It is to be noted that even before the Proclamation, the parcel of land was the subject of
cadastral proceedings before another branch of the Regional Trial Court of Zamboanga del
Sur. At the time of the filing of the instant case, the cadastral proceedings intended to
settle the ownership over the questioned portion of the parcel of land under Proclamation
No. 365 were still pending. One of the claimants in the cadastral proceedings is private
respondent Vicente Medina who traced his ownership over the subject parcel of land as
far back as 1947 when he allegedly bought the same from a Subanan native.

Under the cadastral system, the government through the Director of Lands initiates the
proceedings by filing a petition in court after which all owners or claimants are compelled
to act and present their answers otherwise they lose their right to their own property. The
purpose is to serve the public interests by requiring that the titles to any lands "be settled
and adjudicated." (Section 1 Cadastral Act [No. 22593] Government of the Philippine
Islands v. Abural, 39 Phil. 996 [1919]. It is a proceeding in rem somewhat akin to a judicial
inquiry and investigation leading to a judicial decree. (Director of Lands v. Roman
Archbishop of Manila, 41 Phil. 120 [1920])

Considering therefore, the nature and purpose of the Cadastral proceedings, the outcome
of said proceedings becomes a prejudicial question which must be addressed in the
resolution of the instant case. We apply by analogy the ruling in the case of Quiambao
v. Osorio (158 SCRA 674 [1988]), to wit:
The instant controversy boils down to the sole question of whether or not the
administrative case between the private parties involving the lot subject
matter of the ejectment case constitutes a prejudicial question which would
operate as a bar to said ejectment case.

A prejudicial question is understood in law to be that which arises in a case

the resolution of which is a logical antecedent of the issue involved in said
case and the cognizance of which pertains to another tribunal. (Zapanta v.
Montesa, 4 SCRA 510 [1962]; People v. Aragon, 50 O.G. No. 10, 4863) The
doctrine of prejudicial question comes as in to play generally in a situation
where civil and criminal actions are pending and the issues involved in bath
cases are similar or so closely-related that an issue must be pre-emptively
resolved in the civil case before the criminal action can proceed. Thus, the
existence it a prejudicial question in a civil case is alleged in the criminal case
to cause the suspension of the latter pending final determination of the
former.

The essential elements of a prejudicial question as provided under Section 5,

Rule 111 of the Revised Rules of Court area: [a] the civil action involves an
issue similar or intimately related to the issue in the criminal action; and [b]
the resolution of such issue determines whether or not the criminal action
may proceed.

The actions involved in the case at bar being respectively civil and
administrative in character, it is obvious that technically, there is no
prejudicial question to speak of. Equally apparent, however, is the intimate
correlation between said two [2] proceedings, stemming from the fact that the
right of private respondents to eject petitioner from the disputed portion
depends primarily on the resolution of the pending administrative case. For
while it may be true that private respondents had prior possession of the lot
in question, at the time of the institution of the ejectment case, such right of
possession had been terminated, or at the very least, suspended by the
cancellation by the Land Authority of the Agreement to Sell executed in their
favor. Whether or not private respondents can continue to exercise their right
of possession is but a necessary, logical consequence of the issue involved in
the pending administrative case assailing the validity of the cancellation of the
Agreement to Sell and the subsequent award of the disputed portion to
petitioner. If the cancellation of the agreement, to Sell and the subsequent
award to petitioner are voided, then private respondent's right of possession
is lost and so would their right to eject petitioner from said portion.

Faced with these distinct possibilities, the more prudent course for the trial
court to have taken is to hold the ejectment proceedings in abeyance until
after a determination of the administrative case. Indeed, logic and
 pragmatism, if not jurisprudence, dictate such move. To allow the parties to
undergo trial notwithstanding the possibility of petitioner's right of
possession being upheld in the pending administrative case is to needlessly
require not only the parties but the court as well to expend time, effort in
what may turn out to be a sheer exercise in futility. Thus, 1 Am Jur 2d
tells us:

The court in which an action is pending may, in the exercise of a

sound discretion, upon proper application for a stay of that action,
hold the action in abeyance to abide the outcome of another
pending in another court, especially where the parties and the
issues are the same, for there is power inherent in every court to
control the disposition of causes an its dockets with economy of
time and effort for itself, for counsel, and for litigants. Where the
rights of parties in the record action cannot be properly
determined until the questions raised in the first action are settled
the second action should be stayed.

While this rule is properly applicable to instances involving two [2] court
actions, the existence in the instant case of the same considerations of identity
of parties and issues, economy of time and effort for the court, the counsels
and the parties as well as the need to resolve the parties' right of possession
before the ejectment case may be properly determined, justifies the rule's
analogous application to the case at bar.

Technically, a prejudicial question shall not rise in the instant case since the two actions
involved are both civil in nature. However, we have to consider the fact that the cadastral
proceedings will ultimately settle the real owner/s of the disputed parcel of land. In case
respondent Vicente Medina is adjudged the real owner of the parcel of land, then the writ
of possession and writ of demolition would necessarily be null and void. Not only that. The
demolition of the constructions in the parcel of land would prove truly unjust to the
private respondents.

Parenthetically, the issuance of the writ of possession and writ of demolition by the
petitioner Judge in the ejectment proceedings was premature. What the petitioner should
have done was to stop the proceedings in the instant case and wait for the final outcome of
the cadastral proceedings.

At any rate, affirmative relief based an the above discussions is no longer possible. The
demolition of the buildings owned by the private respondents is now a fait accompli.

In the case of Estate of Gregoria Francisco v. Court of Appeals (199 SCRA 595 [1991] we
awarded just compensation the amount of which was for the trial court to determine in
favor of the petitioner whose building was demolished by the municipality even before a
proper tribunal could decide whether or not the building constituted a nuisance in law.
Our ruling was premised on the ground that the owner of the building was in lawful
possession of the lot and the building by virtue of the permit from the authorized
government agency when the demolition was effected.

We cannot, however, apply this ruling to the present case. The legality of the occupation
by the private respondents of the subject parcel of land is still to be resolved in the
cadastral proceedings. In the event that respondent Vicente Medina is declared owner of
the subject parcel of land, necessarily, the private respondents would be entitled to just
compensation for the precipitate demolition of their buildings. On the other hand, if
private respondent Medina is declared to have no rights over the subject parcel of land
then, the private respondents would not be entitle to any compensation for the demolition
of their buildings. In such a case the private respondents are considered squatters and
therefore, the demolition of their buildings would turnout to have been justified.

Faced with these alternative possibilities, and in the interest of justice, we rule that the
petitioner municipality must put up a bond to be determined by the trial court to answer
for just compensation to which the private respondents may be entitled in case the
demolition of their buildings is adjudged to be illegal.

Moreover, the appellate court correctly ruled this Rule 67 of the Revised Rules of Court on
eminent domain can not be made a subterfuge to justify the petitioner Judge's issuance of
a writ of possession in favor of petitioner municipality. In the recent case of National
Power Corporation v. Hon. Enrique T. Jocson, et al. (G.R. No. 94193-99, February 25, 1992)
we said:

In Municipality of Biñan v. Hon. Jose Mar Garcia, et al. (180 SCRA 576 [1989])
this Court ruled that there are two (2) stages in every action of expropriation:
—

The first is concerned with the determination of the authority of

the plaintiff to exercise the power of eminent domain and the
propriety of its exercise in the content of the facts involved in the
suit. (Citing Sections 1, 2 and 3, Rule 67 of the Rules of Court.) It
ends with an order, if not of dismissal of the action, "of
condemnation declaring that the plaintiff has a lawful right to take
the property sought to be condemned, for the public use or
purpose described in the complaint, upon the payment of just
compensation to be determined as of the date of the filing of the
complaint." (Citing Section 4, Rule 67; Nieto v. Isip, 97 Phil. 31;
Benguet Consolidated v. Republic, 143 SCRA 466.)An order of
dismissal, if this be ordained, would be a final one, of course, since
it finally disposes of the action and leaves nothing more to be
done by the Court on the merits. (Citing Investments, Inc. v. Court
 of Appeals, et al., 147 SCRA 334) So, too, would an order of
condemnation on be a final one, for thereafter as the rules
expressly state, in the proceedings before the Trial Court, "no
objection to the exercise of the right of condemnation (or the
propriety thereof) shall be filed or heard.

The second phase of the eminent domain action is concerned with

the determination to the Court of "the just compensation in for the
property sought to be taken." This is done by the Court with the
assistance of not more than three (3) commissioners
(Citing Sections 5 to 8, Rule 67 of the Rules of Court) The order
fixing the just compensation on the basis of the evidence before,
and findings of, the commissioners would be final, too. It would
finally dispose of the second stage of the suit, and leave nothing
more to be done by the Court regarding the issue. . . .

However, upon the filing of the complaint or at any time thereafter, the
petitioner has the right to take enter upon the possession of the property
involved upon compliance with P.D. No. 42 which requires the petitioner, after
due notice to the defendant, to deposit with the Philippine National Bank in its
main office or any of its branches or agencies, "an amount equivalent to the
assessed value of the property for purposes of taxation." This assessed value
is that indicated in the tax declaration.

Hence, even if we concede that Rule 67 is applicable to the instant case and that petitioner
municipality had the lawful right to eject the private respondents from the subject parcel
of land the issuance of a writ of possession in favor of petitioner municipality would still
not be legal if the petitioner municipality really owns the land. The Judge did not require
petitioner municipality to deposit an amount equivalent to the just compensation due the
private respondents as provided for under Presidential Decree 42. It is only after the
deposit of the just compensation that petitioner municipality would be entitled to a writ of
possession.

Another point raised by the petitioners questions the alleged ruling of the appellate court
"that the petitioners are personally liable for damages to the private respondents for the
abatement of public nuisance." (Rollo, p. 50)

The petitioners misread the appellate court's decision. The records show Chat the private
respondents prayed for, in their petition for certiorari filed with the appellate court,
among others:

It is likewise, prayed that respondents be ordered to pay jointly and severally

the value of the house illegally demolished in the amount of P1,000.00 00,
attorney's fees in the amount of P50,000.00, moral damages in the amount of
 P100,000.00 and exemplary damages in the amount of P50,000.00, to pay the
costs, . . .

xxx xxx xxx

(CA Rollo, p. 6)

In response to this prayer, however, the appellate court stated:

We do not, however, have jurisdiction over petitioners' claim for damages.

This must be pursued in an appropriate action instituted in the Regional Trial
Court. (Rollo, p. 26)

Moreover, the dispositive portion of the decision does not mention any personal liability
for damages against the petitioners. The apprehension of the petitioners lacks factual
basis.

WHEREFORE, the instant petition is DISMISSED. The questioned decision and resolution
of the Court of Appeals are AFFIRMED. The trial court is ordered to require the petitioner
municipality to put up a bond to be determined by the court after hearing to answer, for
just compensation due the private respondents in case the demolition of their buildings is
adjudged to be illegal. The "Motion to Declare in Contempt" filed by petitioner Judge is
referred to the Regional Trial Court of Pagadian City, Branch 18 in Civil Case No. 3156 for
appropriate action.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino,

Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.

Bellosillo, J., is on leave.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-42334 October 31, 1936

NORTH NEGROS SUGAR CO., plaintiff-appellant,
vs.
SERAFIN HIDALGO, defendant-appellee.

Hilado and Hilado for appellant.

Simeon Bitanga for appellee.
Ross, Lawrence, Selph and Carrascoso and DeWitt, Perkins and Ponce Enrile as amici curiæ.

RECTO, J.:

On October 12, 1933, the plaintiff filed before the Court of First Instance of Occidental
Negros a complaint praying, upon the allegations contained therein, that in an injunction
be issued, restraining the defendant from entering or passing through the properties of
the plaintiff, specially through the "mill site" of plaintiff's sugar central.

It appears that the plaintiff is the owner of a site in which is located its sugar central, with
its factory building and residence for its employees and laborers, known as the "mill site."
It also owns the adjoining sugar plantation known as Hacienda "Begoña." Across its
properties the plaintiff constructed a road connecting the "mill site" with the provincial
highway. Through this road plaintiff allowed and still allows vehicles to pass upon
payment of a toll charge of P0.15 for each truck or automobile. Pedestrians are allowed
free passage through it.

Immediately adjoining the above-mentioned "mill site" of the plaintiff is the hacienda of
Luciano Aguirre, known as Hacienda "Sañgay," where the defendant has a billiard hall and
a tuba saloon. Like other people in and about the place, defendant used to pass through
the said road of the plaintiff, because it was his only means of access to the Hacienda
"Sañgay" where he runs his billiard hall and tuba saloon. Later on, by order of the plaintiff,
every time that the defendant passed driving his automobile with a cargo of tuba plaintiff
gatekeeper would stop him and prevent him from passing through said road. Defendant in
such cases merely deviated from said road and continued on his way to Hacienda "Sañgay"
across the fields of Hacienda "Begoña," likewise belonging to the plaintiff.

The alleged conveyance of tuba to plaintiff's "mill site" or the sale thereof within its
property has not been established by the evidence adduced in this case. This the plaintiff
admits in its brief (p.15). Neither is there any evidence to show that the defendant actually
created disturbance in plaintiff's properties, including its "mill site."

Other pertinent facts will be stated in appropriate places in this decision.

A. First of all it may be stated that in the case at bar the injunction applied for,
constitutes, unlike the auxiliary and subordinate remedy that it ordinarily is, the principal
remedy itself. The relief should only be granted, therefore, after it has been established
not only that the right sought to be protected exists, but also that the acts against which
the injunction is to be directed are violative of said right.

SEC. 164. Circumstances under which a preliminary injunction may be granted. A

preliminary injunction may be granted when it is established, in the manner herein-
after provided, to the satisfaction of the judge granting it:

1. That the plaintiff is entitled to the relief demanded and such relief, or any
part thereof, consists in restraining the commission or continuance of the acts
complained of either for a limited period or perpetually;

2. That the commission or continuance of some act complained of during the

litigation would probably work in justice to the plaintiff;

3. That the defendant is doing, or threatens, or is about to do, or in procuring

or suffering to be done, some act probably in violation of the plaintiff's rights,
respecting the subject to the action, and tending to render the judgment
ineffectual. (Code of Civil Procedure.)

In order that, at the final trial of a case, an injunction may issue perpetually
prohibiting the repetition or continuation of an act complained of, it is indispensable
that it shall have been proven at trial that he who seeks such a remedy is entitled to
ask for it; if he is not, his request must be denied. (Tumacder vs. Nueva, 16 Phil.,
513.)

The extraordinary remedy of injunction will not be granted to prevent or remove a

nuisance unless there is a strong case of pressing necessity, and not because of a
trifling discomfort. (De Ayala vs. Barretto, 33 Phil., 538.)

The existence of a right violated is a prerequisite to the granting of an injunction. . . .

A permanent injunction should not be awarded except in a clear case and to prevent
irreparable injury. (32 C. J., 34-36.)

A court of chancery will not entertain a bill enforce a mere valueless abstract right,
and the court will, on its own motion, raise the point for its own protection.
(Dunnom vs. Thomsen, 58 Ill. App., 390.)

None of these requisites is present in the instant case. There has been a failure to establish
either the existence of a clear and positive right of the plaintiff specially calling for judicial
protection through an extraordinary writ of the kind applied for, or that the defendant has
committed or attempts to commit any act which has endanger or tends to endanger the
existence of said right, or has injured or threatens to injure the same.
In obtaining ex-parte a preliminary injunction in the lower court, the plaintiff made under
oath in its complaint the following allegations, which later turned out to be untrue, or, at
least, beyond the capacity of plaintiff to prove:

3. That on sundry occasions heretofore, the defendant used to go to the said "mill
site" of the plaintiff, passing over the latter's private roads, and there caused trouble
among the peaceful people of the place.

4. That the plaintiff, through its representatives, has prohibited the defendant from
entering its private property, but this notwithstanding, the defendant still persists in
repeating his incursions into the said private roads and "mill site" of the plaintiff,
disturbing public order and molesting plaintiff's employees and their families.

The court, in its order granting the preliminary injunction said:

Considering the said injunction and the sworn statement of its correctness filed by
plaintiff's attorneys 1 and it appearing satisfactorily that the issuance of a
preliminary injunction is in order because of the sufficiency of the grounds alleged,
upon the filing of a bond, it is hereby, etc. . . . .

After obtaining the preliminary injunction, the plaintiff amended its complaint by
eliminating therefrom those very allegations upon which the court granted the temporary
remedy, namely, the acts imputed to the defendant "of causing trouble among the peaceful
people of plaintiff's "mill site," and of disturbing public order and molesting plaintiff's
employees and their families within the private roads and the "mill site" of the plaintiff."
The plaintiff doubtless overlooked the fact that the allegation it availed of to obtain a
preliminary injunction was necessary to secure one of a permanent character. In its new
complaint, its only grievance is that the defendant insists in passing through its property
to take tuba to the Hacienda "Sañgay" (which does not belong to the plaintiff but to
Luciano Aguirre, and where the defendant has established a legitimate business). The
amended complaint no longer alleges that the defendant went to the "mill site" and to the
private roads of the plaintiff "to cause trouble, disturb public order and molest plaintiff's
employees and their families."

It develops, however, that neither the original complaint nor the one amended states how
and why the mere passage of the defendant over plaintiff's estate to convey tuba to the
Hacienda "Sañgay" has caused damages to the plaintiff's property rights, requiring the
unusual intervention and prohibition thereof by the courts through injunctive relief. The
plaintiff failed not only to make any allegation to this effect, but also to the state that the
road on its property where the defendant used to pass on his way to the Hacienda
"Sañgay" was open to the public in general, and that the plaintiff, exercising without any
permit a power exclusively lodged in the state by reason of its sovereign capacity,
required the payment of passage fees for the use of said road.
Now, there being no contention here that the defendant, in passing over plaintiff's estate
to take tuba to the Hacienda "Sañgay," occasioned damages to such estate, or that he
sold tuba within the confines thereof, what could have been the basis of the plaintiff's right
for which the special protection of the court is invoked, and of the illegal act laid at
defendant's door? Defendant's passage over plaintiff's property does not, of itself,
constitute an unlawful act inasmuch as the plaintiff, of its own accord, opened the same to
the public conditioned only upon the payment of transit fees by motor vehicles. Neither
does the mere transportation of tuba over plaintiff's estate amount to a violation of the
latter's property rights, unless the goods' destination be at any point within the confines
thereof, or unless the said goods be sold in transit to the laborers and employees of the
plaintiff, which, as plaintiff itself admits in his brief. (p. 15), has not been shown.

The deduction from plaintiff's evidence is, that the real damage which it seeks to avoid
does not consist in defendant's taking tuba with him while traversing the former's
property, as there is no causal relation between the act and any resultant damage, but in
the fact that tuba is disposed of at the Hacienda "Sañgay" to which plaintiff's laborers have
access. What should, therefore, be enjoined, if it were legally possible, is defendant's sale
of tuba at the Hacienda "Sañgay," and not its conveyance across plaintiff's estate. But if, as
plaintiff concedes (brief, p. 16), the former cannot legally enjoined, least of all can the
latter be restrained as long as the public in general is free to go about the said property
and it has not been shown that the defendant, in passing through, it has occasioned
damage thereto or has committed any act infringing plaintiff's property rights or has
refused to pay the required road toll.

Defendant's sale of tuba at the Hacienda "Sañgay" is nothing more than the exercise of a
legitimate business, and no real damage to the third persons can arise from it as a natural
and logical consequence. The bare possibility that plaintiff's laborers, due to the contiguity
of the Hacienda "Sañgay" to its property, might come to the defendant's store to
imbibe tuba to drunkenness, does not warrant the conclusion that the defendant, in thus
running this business, impinges upon plaintiff's property rights and should thereby be
judicially enjoined. The damage which plaintiff seeks to enjoin by this action does not
consist, as has been demonstrated, in defendant's maintaining a tuba store at the Hacienda
"Sañgay," or in defendant's crossing its property while taking tuba to the Hacienda
"Sañgay," but in its laborers finding their way to the said hacienda in order to
buy tuba and become drunk. In other words, the act sought to be restrained as injurious or
prejudicial to plaintiff's interests, is that committed, not by the defendant, but by plaintiff's
own laborers. Rightly and logically, the injunction should be directed against said laborers
to the end that they should abstain from going to the Hacienda "Sañgay" in order to
buy tuba and become drunk. As it would seem unusual for the plaintiff to do this, it should
at least exercise stricter vigilance and impose rigorous discipline on its laborers by, for
instance, punishing drunkenness with expulsion. Plaintiff's remedy lies in its own hand
and should not be looked for in the courts at the sacrifice of other interests no less sacred
and legitimate than the plaintiff's.
Where one has a right to do a thing equity has no power to restrain him from doing it.
(Dammann vs. Hydraulic Clutch Co., 187 Pac., 1069.) Acts under the authority of the law
will not be enjoined (Bonaparte vs. Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617, Baldw.,
205). Lawful exercise of rights incidentally injuring others may not be enjoined by
injunction. (14 R. C. L., 369.) "It is . . . an established principle that one may not be enjoined
from doing lawful acts to protect and enforce his rights of property or of persons, . . . ." (14
R. C. L., pp. 365, 366.)

It is said that the plaintiff seeks to enjoin the defendant, not from selling tuba at his store
in the Hacienda "Sañgay," but from passing through its property to introduce tuba to said
hacienda (plaintiff's brief, p. 16.) The legal rule, however, is that what the law does not
authorize to be done directly cannot be hone indirectly. If the plaintiff cannot judicially
enjoin the defendant from selling tuba at the Hacienda "Sañgay," neither can it obtain said
injunction to prevent him from passing over its property to transport tuba to that place as
long as the defendant is ready to pay the transit fees required by the plaintiff and does not
sell the said goods inside the said property.

Suppose that the defendant, instead of being a tuba vendor, is a social propagandist whose
preachings, while not subversive of the established legal order, are not acceptable to some
capitalistic organizations, say the plaintiff. Suppose that the defendant, armed with the
corresponding official permit, should desire to go to Hacienda "Sañgay" through plaintiff's
estate for the purpose of explaining to the laborers the advantage of the latter organizing
themselves into unions, or joining existing ones, to better defend their interests. Plaintiff
learns in time of the plan and determines to frustrate it in the belief that it would be
prejudicial to its interests for the laborers to be "unionized," while it is for its good that the
laborers be contracted under the so-called "open shop" system. Unable to stop the holding
of the meeting because the same is not to take place on its property may he plaintiff secure
an injunction from the court to prevent the defendant to pass through the said property in
order to reach the place of the meeting, by alleging that the defendant entertains theories
of social reform which might poison the minds of the laborers at the expense of the
plaintiff's interests? May the latter, under the same hypothesis, maintain that the
defendant's act in passing through its property, which is open to public use, constitute
trespass or usurpation restrainable by injunction? If the answer to these questions is, as it
must be, in the negative, the present case is not susceptible of a different solution. The
only difference between the two cases is that in the one supposed the dreaded damage to
plaintiff's interests is of more moment and of more lasting effect than in the case at bar.

When a private road has been thrown open to public use, no action for trespass is
maintainable against any person who desires to make use thereof; consequently, an
injunction suit likewise does not lie.

Private roads, except where laid out under constitutional provisions authorizing the
condemnation of private property for a private use, are public roads in the sense
that they are open to all who see fit to use them, and it is immaterial that the road is
 subject to gates and bars, or that it is merely a cul de sac. Being thus considered as a
public road, it necessarily follows that the owner of the land through which the road
is laid out cannot maintain an action of trespass against any person using it; . . . (50 C.
J., pp. 397, 398.)

. . . Where it is clear that the complainant does not have the right that he claims, he is
not entitled to an injunction, either temporary or perpetual, to prevent a violation of
such supposed right. . . . An injunction will not issue to protect a right not in esse and
which may never arise or to restrain an act which does not give rise to a cause of
action, . . . . (32 C. J., pp. 34, 35.)

B. In its brief, plaintiff states:

In transporting the tuba which he sells in his saloon in Hacienda "Sañgay" the
defendant used to pass thru the private road of the plaintiff which connects its sugar
central with the provincial road. On this private road the plaintiff has put up a gate
under the charge of a keeper, and every time that the defendant passed with a cargo
of tuba the gatekeeper would stop him and remind him that the tuba was not
permitted entry into the private properties of the company, but instead of heeding
this prohibition the defendant would simply deviate from the road and continue on
his way to hacienda "Sañgay" by way of the fields of Hacienda "Begoña." which is
also the private property of the plaintiff.

It is deducible from the above statement that, whenever the gatekeeper of the plaintiff
prevented the defendant from passing thru its so-called "private road," on his way to the
provincial road to Hacienda "Sañgay," the defendant deviated from said road and carried
the tuba across the lands of Hacienda "Begoña" leading to the Hacienda "Sañgay." The
evidence discloses that the passageway across the Hacienda "Begoña," is the same one
frequented by carabaos (s. t., 32, 36). Plaintiff intends not only to prohibit the defendant
from using the road in question, but also from crossing the lands of the Hacienda
"Begoña," also belonging to the plaintiff, where carabaos are allowed to roam. An act so
shocking to the conscience, one is reminded, could only have been perpetrated during the
feudal period when human rights were unmercifully sacrificed to property rights. If an
injunction should lie in the instant case, it should be in favor of the defendant and against
the plaintiff, to enjoin the latter from obstructing the former to pass over the road in
question to convey tuba to the Hacienda "Sañgay." It is indeed strange that it is the
plaintiff and not the defendant that should have applied for the remedy.

. . . An injunction will not be granted when good conscience does not require it,
where it will operate oppressively or contrary to justice, where it is not reasonable
and equitable under the circumstances of the case, or where it will tend to promote,
rather than to prevent, fraud and injustice. . . . (32 C. J., p. 33.) . . . a court of equity
may interfere by injunction to restrain a party from enforcing a legal right against all
equity and conscience. . . . (14 R. C. L., pp. 365, 366, par. 66.) . . . The comparative
 convenience or inconvenience of the parties from granting or withholding the
injunction should be considered, and none should be granted if it would operate
oppressively or inequitably, or contrary to the real justice of the case. This doctrine
is well established. . . . (14 R. C. L., pp. 357, 358, par. 60.)

The power of the courts to issue injunctions should be exercised with great caution
and only where the reason and necessity therefor are clearly established; and while
this rule has been applied more frequently in the case of preliminary and mandatory
injunctions, it applies to injunctions of all classes, and to restraining orders. . . . (32
C. J., pp. 33, 34.)

The writ of injunction will not be awarded in doubtful or new cases not coming
within well-established principles of equity. (Bonaparte vs. Camden, etc. Railroad
Co., 3 Fed. Cas. No. 1617; Hardesty vs. Taft, 87 Am. Dec., 584.)

C. Plaintiff's action is frivolous and baseless.

Plaintiff states in the sixth paragraph of its amended complaint:

6. That, in addition, the plaintiff, in the exercise of it property rights, does not want
to allow the entry of the defendant in any part of its estate above mentioned in
order to avert any friction or ill-feeling against him.

The plaintiff, in petitioning the courts for an injunction to avert "friction or ill-feeling"
against the defendant, invoking its sacred property rights, attempts to intrust to them a
mission at once beyond those conferred upon them by the Constitution and the laws, and
unbecoming of their dignity and decorum.

D. Plaintiff has not established the existence, real or probable of the alleged damage
against which the injunction is invoked.

As has been seen, the allegations of the amended complaint do not justify the granting of
an injunction. The said allegations only state, as the basis of plaintiff's action, that the
defendant insists in passing or "making incursions" on plaintiff's property to take tuba to
the Hacienda "Sañgay," and the plaintiff wants to avoid "friction and ill-feeling against
him." Such allegations do not imply the existence, of any real damage to plaintiff's rights
which should be enjoined, and do not, therefore, constitute a legal cause of action. On the
other hand, what the plaintiff attempted to establish by its evidence differs from the
allegations of its amended complaint. What said evidence really discloses is not, that the
plaintiff had forbidden the defendant to convey tuba to the Hacienda "Sañgay" through
plaintiff's estate, but to introduce tuba into the central or to place tuba on its lands, or,
according to Exhibit A, to trespass illegally on plaintiff's estate. The testimony of the
gatekeeper Santiago Plagata and the accountant Ankerson is as follows:
 Q. Why did you detain him? — A. Because the Central forbids the bringing of tuba to
the Central.

Q. Why does the Central prohibit the entry of tuba? — A. The Central prohibits the
entry of tuba there because the laborers, generally, buy tuba, drink it and become
drunk, and are unable to work, and sometimes they fight because they are drunk. (S.
t., p. 5.)

Q. Why did you kick them? — A. Because the North Negros Sugar Co. prohibits the
placing of tuba on those lands. (S. t., pp. 38, 39.)

Exhibit A, the alleged letter addressed by the plaintiff to the defendant, recites:

Mr. SERAFIN HIDALGO, Driver of Auto, License No. 1085-1935.

Present.

SIR: Effective this date, you are hereby forbidden to trespass upon any of the
Company's properties under penalties of law prescribed for trespass.

NORTH INTEGROS SUGAR CO., INC,.

By: (Sgd.) Y. E. GREENFIELD
Manager

It will be noted that according to this letter, the defendant was enjoined by the plaintiff
from passing thru its properties, whether he carried tuba or not.

Plaintiff's admission in its brief (p. 15) that it has not been established that the defendant
has brought tuba to the "mill site," or has sold it within its property, is fatal to the present
action charging the defendant with said acts.

E. The well-known principle of equity that "he who comes to equity must come with
clean hands" bars the granting of the remedy applied for by the plaintiff.

It has been already stated that the plaintiff, to obtain a preliminary injunction in this case,
alleged under oath in its original complaint facts which it knew to be false, or, at least,
unprobable, because it did not only eliminate them from the amended complaint which it
filed after the issuance of the preliminary injunction, but it failed to substantiate them at
the trial. We refer to the following allegations: "that the defendant used to go to the "mill
site" of the plaintiff passing through plaintiff's private roads and there cause trouble
among peaceful people of the place," and "that notwithstanding the prohibition of the
plaintiff, the defendant insists in repeating his incursions into the said private roads and
"mill site" of the plaintiff, disturbing public order and molesting plaintiff's employees and
their families."
If said allegations were true, it is evident that plaintiff was entitled to a preliminary
injunction at the commencement of the trial, and to a permanent injunction after the was
rendered. But such is not the case, as the subsequent theory of the plaintiff, announced in
its amended complaint, is not that the defendant "made incursions into the "mill site" and
private roads of the plaintiff, causing trouble, disturbing public order, and molesting
plaintiff's employees and their families," but only that the defendant, to take tuba to the
Hacienda "Sañgay," belonging to Luciano Aguirre, insisted in passing through plaintiff's
estate. From all this it follows that the plaintiff in order to obtain a preliminary injunction,
trifled with the good faith of the lower court by knowingly making untrue allegations on
matters important and essential to its cause of action. Consequently, it did not come to
court with clean hands.

Coming into Equity with Clean Hands. — The maxim that he who comes into equity
must come with clean hands is, of course, applicable in suits to obtain relief by
injunction. Injunction will be denied even though complainant shows that he has a
right and would otherwise be entitled to the remedy in case it appears that he
himself acted dishonestly, fraudulently or illegal in respect to the matter in which
redress is sought, or where he has encouraged, invited or contributed to the injury
sought to be enjoined. However, the general principle that he who comes into equity
must come with clean hands applies only to plaintiff's conduct relation to the very
matter in litigation. The want of equity that will bar a right to equitable relief for
coming into court with unclean hands must be so directly connected with the matter
in litigation that it has affected the equitable relations of the parties arising out of
the transaction in question. (32 C. J. pp. 67, 68.)

At this point, attention should be directed to other facts of the case indicative of the
censurable attitude which the plaintiff has taken in connection therewith. On one
occasion, the defendant drove his automobile along the road in question, accompanied by
Antonio Dequiña, headed for the Hacienda "Sañgay." As they had tuba with them, on
reaching the gate they were halted by the gatekeeper. The defendant and his companion
got off the car and unloaded the tuba in order to follow the passageway across the lands of
the Hacienda "Begoña," through which plaintiff's carabaos passed, until they could reach
"Sañgay." Thereupon, one Ankerson, accountant and auditor of the plaintiff, arrived and
no sooner he had laid eyes on the tuba containers than he indignantly kicked them and
uttered a blasphemy to both, spilling the contents thereof. The defendant protested and
asked Ankerson to indemnify him for the value of the tuba which had been wasted, to
which Ankerson replied that he would make good what should be paid, and he then and
there wrote and handed over a note to the defendant for presentation to plaintiff's cashier.
The defendant presented the note, but this claim was not paid, and instead he was
prosecuted for trespass in the justice of the peace court of Manapla under article 281 of
the Revised Penal Code. So absurd and malicious was the charge that the court, in
acquitting the defendant, entered the following order (Exhibit 3):
 A peaceful citizen who passes through a private road open to the public does not
commit the crime of trespass. Although the prohibition to the accused to be in a
private property should be manifest, if the latter is not fenced or uninhabited, the
mere fact that the accused is found on the place in question, for a lawful purpose,
does not constitute the crime of trespass defined and punished under article 281 of
the Revised Penal Code.

The plaintiff did not stop at this; it filed the present action for injunction which, as has
been seen, is nothing more than the culmination of a series of affronts which the plaintiff
has perpetrated, privately and through the courts, against the defendant.

F. The exercise of discretion by trial courts in matters injunctive should not be

interfered with by appellate courts except in cases of manifest abuse.

. . . The court which is to exercise the discretion is the trial court and not the
appellate court. The action of the court may be reviewed on appeal of error in case
of a clear abuse of discretion, but not otherwise, and ordinarily mandamus will not
lie to control such discretion. (32 C. J., sec. 11, p. 33.)

True, the rule has particular application to preliminary injunctions, but the rule should not
be otherwise with respect to permanent injunctions especially where, as in this case, the
trial court, after granting the preliminary injunction, set the same aside in its final decision
on a careful review of the evidence.

II

It is undisputed the road in question was constructed by the plaintiff on its own land, and
that it connects the central or the "mill site" with the provincial road. We have also the
admission that the plaintiff made this road accessible to the general public, regardless of
class or group of persons or entities. Its use has been extended to employees and laborers
of the plaintiff; and so also to all those who have a mind to pass through it, except that, in
cases of motor vehicles, a passage fee of P0.15, each should be paid. There is no contention
here that the defendant had refused to pay said tolls whenever he wanted to drive his car
along the road in question.

We, therefore, have the case of an easement of way voluntarily constituted in favor of a
community. Civil Code articles 531 and 594 read:

ART. 531. Easements may also be established for the benefit of one or more persons
or of a community to whom the encumbered estate does not belong.

xxx xxx xxx

 ART. 594. The owner of an estate may burden it with such easements as he may
deem fit, and in such manner and form as he may consider desirable, provided he
does not violate the law or public order.

There is nothing in the constitution of this easement in violation of law or public order,
except perhaps that the right to open roads and charge passage fees therefor i the State's
by right of sovereignty and may not be taken over by a private individual without the
requisite permit. This, however, would affect the right of the plaintiff to charge tolls, but
not that of the defendant or of any other person to make use of the easement.

As may be seen from the language of article 594, in cases of voluntary easement, the
owner is given ample liberty to establish them: "as he may deem fit, and in such manner
and form as he may consider desirable." The plaintiff "considered it desirable" to open this
road to the public in general, without imposing any condition save the payment of a
fifteen-centavo toll by motor vehicles, and it may not now go back on this and deny the
existence of an easement. Voluntary easements under article 594 are not contractual in
nature; they constitute the act of the owner. If he exacts any condition, like the payment of
a certain indemnity for the use of the easement, any person who is willing to pay it may
make use of the easement. If the contention be made that a contract is necessary, it may be
stated that a contract exits from the time all those who desire to make use of the easement
are disposed to pay the required indemnity.

The plaintiff contends that the easement of way is intermittent in nature and can only be
acquired by virtue of a title under article 539. The defendant, however, does not lay claim
to it by prescription. The title in this case consists in the fact that the plaintiff has offered
the use of this road to the general public upon payment of a certain sum as passage fee in
case of motor vehicles.

The cases of Roman Catholic Archbishop of Manila vs. Roxas (22 Phil., 450), and Cuaycong
vs. Benedicto (37 Phil., 781), are not controlling, as there the attempt was to establish that
the right to an easement of way had been acquired by prescription. Here defendant's
contention is, that while the road in question remains open to the public, he has a right to
its use upon paying the passage fees required by the plaintiff. Indeed the latter may close
it at its pleasure, as no period has been fixed when the easement was voluntarily
constituted, but while the road is thrown open, the plaintiff may not capriciously exclude
the defendant from its use.

Furthermore, plaintiff's evidence discloses the existence of a forcible right of way in favor
of the owner and occupants of the Hacienda "Sañgay" under the Civil Code, article 564,
because, according to said evidence, those living in Hacienda "Sañgay" have no access to
the provincial road except thru the road in question. Santiago Plagata, principal witness of
the plaintiff, testified thus:
 Emerging from the provincial road, the defendant has necessarily to pass through
this private road where the gate of which I am the keeper is situated, and then he
gets to the Central. (S. t., p. 5.)

Q. To go to the Hacienda "Sañgay," is there any need to cross the "mill site" of
the Central? — A. Yes, sir.

Q. And the property of the Central is passed in going to the Hacienda

"Sañgay"? — A. Yes, sir.

Q. Is there any other road? — A. I am not sure whether there is another road.

Q. For how long have you been a watchman there? — A. Nine years to date.

Q. And during that period of nine years, can you not state if there is any road
which gives access to the Hacienda "Sañgay"? Or the Central has necessarily to
be passed? — A. I cannot say because I do not go to those places.

COURT:

Q. But all the others, except the defendant, who go to the Hacienda "Sañgay"
necessarily pass thru the Central? — A. They pass thru that road of the
Central. (S. t., pp. 16, 17.)

The evidence for the defendant confirms this:

Q. To go there, thru what road did you have to pass? — A. Thru the road of the
Central.

Q. And by this road of the Central you mean the Central "North Negros Sugar
Co., Inc."? — A. Yes, sir.

Q. By this road of the Central which you mentioned, you mean the road where
there is a gate, beginning from the Central until the provincial road, where the
gate is for the purpose of preventing passage? — A. Yes, sir, the very one.

Q. And because of that gate, the Central collects certain toll? — A. Yes, sir. (S. t.,
pp. 20, 21.)

III

Having been devoted by the plaintiff to the use of the public in general, upon paying the
passage fees required in the case of motor vehicles, the road in question is charged with a
public interest, and while so devoted, the plaintiff may not establish discriminatory
exceptions against any private person.
 When private property is affected with a public interest, it ceases to be juris privati
only; as if a man set out a street in new building on his own land, it is now no longer
bare private interest, but is affected by a public interest. (Lord Chief Justice Hale in
his treatise "De Portibus Maris, quoted with approval in Munn vs. Illinois, 94 U. S.,
113 [1876], and in Nebbia vs. New York, 291 U. S., 502 [1934].)

The above language was used in the seventeenth century, when exceptions to the
individualistic regime of ownership were scarcely recognized, and when the ideas on its
social function may be said to be in their infancy.

Property does become clothed with a public interest when used in a manner to
make it of public consequence, and affect the community at large. When, therefore,
one devotes his property to a use in which the public has an interest, he, in effect,
grants to the public an interest in that use, and must submit to be controlled by the
public for the common good, to the extent of the interest he has thus created. He
may withdraw his grant by discontinuing the use; but, so long as he maintains the use,
he must submit to the control. (Munn vs. Illinois, 94 U. S., 113; 24 Law. ed., 77.)

Under our form of government the use of property and the making of contracts are
normally matters of private and not of public concern. The general rule is that both
shall be free of governmental interference. But neither property rights nor contract
rights are absolute; nor government cannot exist if the citizen may at will use his
property to the detriment of his fellows, or exercise his freedom of contract to work
them harm. Equally fundamental with the private right is that of the public to
regulate in the common interest. . . . The court has repeatedly sustained curtailment
of enjoyment of private property, in the public interest. The owner's rights may be
subordinated to the needs of other private owners whose pursuits are vital to the
paramount interests of the community. (Nebbia vs. New York, 291 U. S., 502, 521,
525; 78 Law. ed., 940, 948.)

Whenever any business or enterprise becomes so closely and intimately related to

the public, or to any substantial part of a community, as to make the welfare of the
public, or a substantial part thereof, dependent upon the proper conduct of such
business, it becomes the subject for the exercise of the regulatory power of the state.
(Clarksburg Light & Heat Co. vs. Public Service Commission, P. U. R. 1920A, 639; 84
W. Va., 638; 100 S. E., 551.)

. . . If the service is dedicated to the public or some portion thereof, or to persons

within a given area, then any member of the public or of the given class, or any
person within the given area, may demand such service without discrimination, and
the public, or so much of it as has occasion to be served, is entitled to the service of
the utility as a matter of right, and not of grace. . . . A corporation becomes a public
service corporation, and therefore subject to regulation as a public utility, only when
 and to the extent that the business of such corporation becomes devoted to a public
use. . . . (Stoehr vs. Natatorium Co. 200 Pac. [Idaho], 132, quoted in 18 A. L. R., 766.)

Tested by the rule laid down in Munn vs. Illinois, it may be conceded that the state
has the power to make reasonable regulation of the charges for services rendered
by the stockyards company. Its stock yards are situated in one of the gateways of
commerce, and so located that they furnish important facilities to all seeking
transportation of cattle. While not a common carrier, nor engaged in any
distinctively public employment, it is doing a work in which the public has an
interest, and therefore must be considered as subject to government regulation.
(Cotting vs. Godard, 183 U.S., 79; 46 Law. ed., 92.)

Business which, though not public at their inception, may be fairly said to have risen
to be such, and have become subject in consequence to some government
regulation. They have come to hold such a peculiar relation to the public that this is
superimposed upon them. In the language of the cases, the owner, by devoting his
business to the public use, in effect, grants the public an interest in that use, and
subjects himself to public regulation to the extent of that interest, although the
property continues to belong to its private owner, and to be entitled to protection
accordingly. (Munn vs. Illinois, supra; Spring Valley Waterworks vs.Schottler, 110 U.
S., 347; 28 L. ed., 173; 4 Sup. Ct. Rep., 48; People vs. Budd, 117 N. Y., 1, 27; 5 L. R. A.,
559; 15 Am. St. Rep., 460; 22 N. E., 670; s. c. 143 U. S., 517; 36 L. ed., 247; 4 Inters.
Com. Rep., 45; 12 Sup. Ct. Rep., 468; Brass vs. North Dakota, 153 U. S., 391; 38 L. ed.,
757; 4 Inters. Com. Rep., 670; 14 Sup. Ct. Rep., 857; Noble State Bank vs. Haskell, 219
U. S., 104; 55 L. ed., 112; 32 L. R. A. [N. S.], 1062; 31 Sup. Ct. Rep., 186; Ann. Cas.,
1912A, 487; German Alliance Ins. Co. vs. Lewis, 233 U.S., 389; 58 L. ed., 1011; L. R. A.
1915C, 1189; 34 Sup. Ct. Rep., 612; VanDyke vs. Geary, 244 U. S., 39, 47; 61 L. ed.,
973, 981; 37 Sup. Ct. Rep., 483, Block vs. Hirsh, 256 U. S., 135; 65 L. ed., 865; 16 A. L.
R., 165; 41 Sup. Ct. Rep., 458.) Wolff Packing Co. vs. Court of Industrial Relations, 262
U. S. 522; 27 A. L. R., 1280, 1286.)

Under the facts of the instant case, the road in question is of the nature of the so-called
"turnpike road" or "toll-road." The following authorities are, therefore, in point:

""Toll" is the price of the privilege to travel over that particular highway, and it is
a quid pro quo. It rests on the principle that he who, receives the toll does or has
done something as an equivalent to him who pays it. Every traveler has the right to
use the turnpike as any other highway, but he must pay the toll. (City of St.
Louis vs.Creen, 7 Mo. App., 468, 476.)

A toll road is a public highway, differing from the ordinary public highways chiefly
in this: that the cost of its construction in the first instance is borne by individuals,
or by a corporation, having authority from the state to build it, and, further, in the
right of the public to use the road after completion, subject only to the payment of
 toll. (Virginia Cañon Toll Road Co. vs. People, 45 Pac., 396, 399; 22 Colo., 429; 37 L. R.
A., 711.)

Toll roads are in a limited sense public roads, and are highways for travel, but we do
not regard them as public roads in a just sense, since there is in them a private
proprietary right. . . . The private right which turnpike companies possess in their
roads deprives these ways in many essential particulars of the character of public
roads. It seems to us that, strictly speaking, toll roads owned by private corporation,
constructed and maintained for the purpose of private gain, are not public roads,
although the people have a right to freely travel them upon the payment of the toll
prescribed by law. They are, of course, public, in a limited sense, but not in such a
sense as are the public ways under full control of the state, for public ways, in the
strict sense, are completely under legislative control. (Elliott, Roads & S., p. 5.)
(Board of Shelby County Com'rs vs.Castetter, 33 N. E., 986, 987; 7 Ind. App., 309.)

It has been suggested during the consideration of the case at bar that the only
transportation companies with motor vehicles who can have an interest in passing over
the said road are those which carry laborers of the central and passengers who transact
business with the plaintiff, and not all public service motor vehicles with certificates of
public convenience, and that the only persons who may have an interest in passing over
the said road are the laborers of the plaintiff and persons who do business with it and the
occupants of the 21 houses situated in the Hacienda "Sañgay," and not everyone for
personal convenience. But even if this were true, the plaintiff having subjected the road in
question to public use, conditioned only upon the payment of a fifteen-centavo passage
fees by motor vehicles, such circumstance would not affect the case at all, because what
stamps a public character on a private property, like the road in question, is not the
number of persons who may have an interest in its use, but the fact that all those who may
desire to use it may do so upon payment of the required indemnity.

. . . The public or private character of the enterprise does not depend, however, upon
the number of persons by whom it is used, but upon whether or not it is open to the
use and service of all members of the public who may require it, to the extent of its
capacity; and the fact that only a limited number of persons may have occasion to
use it does not make of it a private undertaking if the public generally has a right to
such use. . . . (51 C. J., sec. 2, p. 5.)

The test is, not simply how many do actually use them, but how many may have a
free and unrestricted right in common to use them. If it is free and common to all
citizens, then no matter whether it is or is not of great length, for whether it leads to
or from a city, village or hamlet, or whether it is much or little used, it is a "public
road." (Heninger vs. Peery, 47 S. E., 1013, 1014; 102 Va., 896, quoting Elliott, Roads
& S., secs. 11, 192.)
The circumstance that the road in question does not properly fall within the definition of a
public utility provided in Act No. 3108, does not divest it to this character:

. . . Whether or not a given business, industry, or service is a public utility does not
depend upon legislative definition, but upon the nature of the business or service
rendered, and an attempt to declare a company or enterprise to be a public utility,
where it is inherently not such, is, by virtue of the guaranties of the federal
constitution, void wherever it interferes with private rights of property or contract.
So a legislature cannot by mere fiat or regulatory order convert a private business
or enterprise into a public utility, and the question whether or not a particular
company or service is a public utility is a judicial one, and must be determined as
such by a court of competent jurisdiction; . . . . (51 C. J., sec. 3, p. 5.)

The road in question being a public utility, or, to be more exact, a private property affected
with a public interest, is not lawful to make arbitrary exceptions with respect to its use
and enjoyment.

Duty to Serve Without Discrimination. — A public utility is obligated by the nature of

its business to furnish its service or commodity to the general public, or that part of
the public which it has undertaken to serve, without arbitrary discrimination, and it
must, to the extent of its capacity, serve all who apply, on equal terms and without
distinction, so far as they are in the same class and similarly situated. Accordingly, a
utility must act toward all members of the public impartially, and treat all alike; and
it cannot arbitrarily select the persons for whom it will perform its service or
furnish its commodity, nor refuse to one a favor or privilege it has extended to
another, since the term "public utility" precludes the idea of service which is private
in its nature and is not to be obtained by the public. Such duties arise from the
public nature of a utility, and statutes providing affirmatively therefor are merely
declaratory of the common law. (51 C. J., sec. 16, p. 7.)

The circumstance that the plaintiff is not the holder of a franchise or certificate of public
convenience, or that it is a company devoted principally to the manufacturer of sugar and
not to the business of public service or that the state has not as yet assumed control or
jurisdiction over the operation of the road in question by the plaintiff, does not preclude
the idea that the said road is a public utility.

The touchstone of public interest in any business, its practices and charges, clearly is
not the enjoyment of any franchise from the state. (Munn vs. Illinois [94 U. S., 113;
24 L. ed., 77, supra.) (Nebbia vs. New York, supra.)

The fact that a corporation may not have been given power to engage in the
business of a public utility is not conclusive that it is not in fact acting as a public
utility and to be treated as such. (51 C. J., p. 5.)
 The question whether or not it is such does not necessarily depend upon whether it
has submitted or refused submit to the regulatory jurisdiction of the state, nor upon
whether or not the state has as yet assumed control and jurisdiction, or has failed or
refused so to do. (51 C. J., p. 6.)

The fact that a corporation does other business in addition to rendering a public
service does not prevent it from being a public utility, and subject to regulation as
such, as to its public business. (51 C. J., p. 6.)

The term "public utility" sometimes is used to mean the physical property or plant
being used in the service of the public. (51 C. J., p. 6.)

There are . . . decisions in which the incidental service has been held to public
regulation and control. (Re Commonwealth Min. & Mill. Co. [1915; Ariz.], P. U. R.,
1915B, 536; Nevada, C. & O. Teleg. & Teleph. Co. vs.Red River Lumber Co. [1920;
Cal.], P. U. R., 1920E, 625; Sandpoint Water & Light Co. vs. Humberd Lumber Co.
[1918; Idaho], P. U. R., 1918B, 535; Public Service Commission vs. Valley Mercantile
Co. [1921; Mont.], P. U. R., 1921D, 803; Public Service Commission vs. J. J. Rogers Co.
[1918], 184 App. Div., 705; P. U. R., 1919A, 876; 172 N. Y. Supp., 498;
Wingrove vs. Public Service Commission [1914], 74 W. Va., 190; L. R. A. 1918A, 210;
81 S. E., 734; Chambers vs. Spruce Lighting Co. [1918], 81 W. Va., 714; 95 S. E.
192. See alsoHoff vs. Montgomery [1916; Cal.], P. U. R., 1916D, 880; Re Producers
Warehouse [1919; Cal.], P. U. R., 1920A, 919; Ticer vs. Phillips [1920; Cal.], P. U. R.,
1920E, 582; Re Ontario Invest. Co. [1921; Cal.], P. U. R., 1922A, 181;
Bassett vs. Francestown Water Co. [1916; N. H.], P. U. R., 1916B, 815; Re Northern
New York Power Co. [1915; N. Y., 2d Dist.], P. U. R., 1915B, 70.) (Annotation in 18 A.
L. R., 766, 767.)

The point is made that, there being no contract between the plaintiff and the public
interested in the use of the road in question it should be understood that such use has
been by the mere tolerance of the plaintiff, and that said property has not been constituted
into a public utility. The contention is devoid of merit.

When private property is devoted to public use in the business of a public utility, certain
reciprocal rights and duties are raised by implication of law between the utility and the
public it undertakes to serve, and no contract between them is necessary to give rise
thereto. . . . (51 C. J., sec. 12 p. 6.)

Wherefore the judgment appealed from is affirmed, with costs to the plaintiff.

Abad Santos, J., concurs.

Separate Opinions

LAUREL, J., concurring and dissenting:

I concur in the result. I do not, however, agree to certain conclusions and observations
that are made in the foregoing opinion.

I. I am of the opinion that no servitude of way under the Civil Code has been created on the
tenement of the plaintiff in favor of the defendant.lâwphi1.nêt

Servitudes constitute legal limitations on the right of ownership. They are considered so
among the most ancient of property rights. The early Roman Law allowed the imposition
of a servitude of way over intervening tenements for the purpose of enabling strangers to
reach the sepulchers of their ancestors. The modern civil law, however, has amplified the
principle and invested it with a utilitarian concept for the convenience of landowners,
particularly for the cultivation of enclosed rural estates. But the general principles of the
Roman Law regarding servitudes, whether praedial or personal, are preserved intact in
the modern civil law, and are now commonly applied to the "easements" of the common
law. Among these general principles which have come down to us through the ages are (1)
that servitudes are to be considered subordinate to the right of ownership, and (2) that,
being a sort of dismemberment of the right of private property, servitudes are never to be
presumed but must be proved to have been constituted in the manner prescribed by law.

A servitude of way is either legal or voluntary. A forced servitude of way constituted in the
manner and under the conditions stated in articles 564 to 570 of the Civil Code. Paragraph
1 of article 564 provides that "The owner of a tenement or land, surrounded by others
belonging to different owners and without access to a public highway, is entitled to
demand a right of way through the neighboring tenements, after payment of the proper
indemnity."

No legal servitude of way exists in the present case. The defendant has not shown that his
right of passage across the tenement of the plaintiff exists by reason of necessity growing
out of the peculiar location of his property. He does not even own the tenement where he
conducts his business. Said tenement belongs to Luciano Aguirre who, as the owner
thereof, would be the one entitled to claim the forced servitude of way, on the hypothesis
that it is demanded by the peculiar location of the tenement. A mere lessee can not
demand the legal servitude of way (see Manresa, Civil Code, vol. 4, 2d ed., p. 705).
Moreover, it does not appear that Luciano Aguirre or the defendant has otherwise fulfilled
the requirements of the law. (Art. 564, Civil Code; Cuaycong vs. Benedicto, 37 Phil., 781,
797.)

Nor can it be said that a voluntary servitude of way exists. It should be observed that a
right of way is discontinuous or intermittent as its use depends upon acts of ma (art. 532,
Civil Code; 4 Manresa, Civil Code, 2d., p. 569; Cuaycong vs. Benedicto, supra). Lacking the
element of continuity in its use, a right of way may not be acquired by prescription but
solely by title (art. 539, Civil Code). Only continuous and apparent servitudes, like the
servitude of light and view, may be acquired by prescription (art. 537, Civil Code). Even
assuming, however, that a servitude of way may be acquired by prescription in view of the
provisions of the present Code of Civil Procedure, nevertheless, it can not be held that
prescription exists in the present case. The free passage over the private way rests on
mere tolerance on the part of the plaintiff, is a settled principle of law in this jurisdiction
that acts merely tolerated can not give rise to prescription (Cortes vs. Yu-Tibo, 2 Phil., 24,
27; Ayala de Roxas vs. Maglonso, 8 Phil., 745; Roman Catholic Archbishop of
Manila vs. Roxas, 22 Phil., 450, 452, 453; Municipality of Nueva Caceres vs. Director of
Lands and Roman Catholic Bishop of Nueva Caceres, 24 Phil., 485;
Cuaycong vs. Benedicto, supra).

In what does the title of the plaintiff consist? By title as a mode of acquiring servitude, the
Civil Code refers to the "juridical act" which gives birth to the servitude. "Son,
pues, titulos constitutivos de los servidumbres cualquiera que sea su clase, la ley, la
donacion, el contrato y el testamento" (4 Manresa, Civil Code, 2d ed., pp. 594, 595). Title
by law is lacking. There is neither will nor donation, for the making of a donation and the
execution of require special formalities. It is elementary that the plaintiff, being an
artificial person, has no capacity to execute a will. In my opinion, there is no title by
contract. The act of the plaintiff in opening the private way here involved did not
constitute an offer to the public to use said way. There being no offer, there could be no
acceptance; hence, no contract.

The plaintiff did not encumber his tenement with a servitude of way. Property is always
presumed free from any and all encumbrances. The act of the plaintiff, performed wholly
upon its own exclusive property, should not be construed to constitute the creation of a
servitude. Servitus in faciendo consistere nequit. "For a man should not use that which
belongs to him as if it were a service only, but as his own property" (Law 13, title 31,
third partida, quoted with approval in Cortes vs. Yu-Tibo, 2 Phil., 24, 27).

II. The mere opening of the private way in question to the public did not necessarily clothe it
with a public interest such as to compel the owner thereof to allow everybody to pass
thereon. Even on the hypothesis that such private way is affected with a public interest, still,
it is good law that the owner thereof may make reasonable restrictions and limitations on
the use thereof by the general public.
Public regulation of private property under the police power is often justified on the
ground that the property so regulated is affected with a public interest. The phrase
"affected with a public interest" was brought into prominence by the discussion in Lord
Hale's treatise De Portibus Maris (I Hargrave's Law Tracts, 78) of more than two centuries
ago where the classic statement was made that when private property "is affected with
public interest, it ceases to be juris privati only."

Chief Justice Taft, speaking for the Supreme Court of the United States in Wolff Packing
Co. vs. Court of Industrial Relations (262 U. S., 522; 67 Law. ed., 1103, 1108), enumerated
as follows the business and occupations which may be said to be clothed with a public
interest:

(1) Those which are carried on under the authority of a public grant of privileges
which either expressly or impliedly imposes the affirmative duty of rendering a
public service demanded by any member of the public. Such are the railroads, other
common carriers and public utilities.

(2) Certain occupations, regarded as exceptional, the public interest attaching to

which, recognized from earliest times, has survived the period of arbitrary laws by
Parliament or colonial legislatures for regulating all trades and callings. Such are
those of the keepers of inns, cabs, and gristmills. (State vs. Edwards, 86 Me., 102; 25
L. R. A., 504; 41 Am. St. Rep., 528; 29 Atl., 947; Terminal Taxicab Co. vs. Kutz. 241 U.
S., 252, 254; 60 Law. ed., 984, 986; P. U. R. 1916D, 972; 36 Sup, Ct. Rep., 583; Ann.
Cas. 1916D, 765.)

(3) Businesses which, though not public at their inception, may be fairly said to have
risen to be such, and have become subject in consequence to some government
regulation. They have come to hold such a peculiar relation to the public that this is
superimposed upon them. In the language of the cases, the owner, by devoting his
business to the public use, in effect grants the public an interest in that use, and
subjects himself to public regulation to the extent of that interest, although the
property continues to belong to its private owner, and to be entitled to protection
accordingly. (Munn vs. Illinois, supra; Spring Valley Waterworks vs. Schottler, 110 U.
S., 347; 28 Law ed., 173; 4 Sup. Ct. Rep., 48; People vs. Budd, 117 N. Y., 1, 27; 5 L. R.
A., 559; 15 Am St. Rep., 460; 22 N. E., 670; s. c. 143 U. S., 517; 36 Law ed., 247; 4
Inters. Com. Rep., 45; 12 Sup. Ct. Rep., 468; Brass vs. North Dakota, 153 U. S., 391; 38
Law. ed., 757; 4 Inters. Com. Rep., 670; 14 Sup. Ct. Rep., 857; Noble State
Bank vs. Haskell, 219 U. S., 104; 55 Law. ed., 112; 32 L. R. A. [N. S.], 1062; 31 Sup. Ct.
Rep., 186; Ann. Cas. 1912A, 487; German Alliance Ins. Co. vs. Lewis, 233 U. S., 389; 58
Law. ed., 1011; L. R. A. 1915C, 1189; 34 Sup. Ct. Rep., 612; VanDyke vs. Geary, 244 U.
S., 39, 47; 61 Law. ed., 973, 981; 37 Sup. Ct. Rep., 483; Block vs. Hirsh, 256 U. S., 135;
65 Law ed., 865; 16 A. L. R., 165; 41 Sup. Ct. Rep., 458.)
The term "affected with a public interest" is incapable of exact apprehension. "What
circumstances shall affect property with a public interest is not very clear." (Cooley,
Constitutional Limitations, 7th ed., p. 872.) "It requires no especial acuteness of mind,"
says Willoughby in his valuable work on the Constitution of the United States, "to see that,
in truth, no clear line of distinction can be drawn." (Vol. 3, 2d ed., pp. 1758, 1759. See
also German Alliance Ins. Co. vs. Lewis, 233 U. S., 389; 34 Sup. Ct., 612; 58 Law. ed., 1011; L.
R. A. [1915C], 1189.)

To my mind, the road in question may not be likened unto a turnpike or toll road in the
legal sense of the term. The right to construct and maintain a toll or turnpike road and to
collect tolls exists only by virtue of an express grant from the legislature.
(Powell vs. Sammons and Dotes, 31 Ala., 552; Blood vs. Woods, 30 P., 129; 95 Cal., 78;
Volcano Cañon Road Co. vs. Placer County, 26 P., 513; 88 Cal., 634; Truckee, and Tahoe
Turnpike Road Co. vs. Campbell, 44 Cal., 89; Virginia Canon Toll-Road Co. vs. People, 45 P.,
398; 22 Colo., 429; 37 L. R. A., 711; Pike County Justices vs. Griffin, etc., Plank Road Co., 9
Ga., 475; Wartdsworth vs. Smith, 11 Me., 278; 26 Am. D., 525; State vs, Louisiana, etc.,
Gravel Road Co., 92 S. W., 153; 116 Mo. App., 175; String vs. Camden, etc., Turnpike Co., 40
A., 774; 57 N. J. Eq., 227; In re People, 128 N. Y. S., 29; 70 Misc., 72; Turner vs. Eslick, 240 S.
W., 786; 146 Tenn., 236; Peru Turnpike Co. vs. Town of Peru, 100 A., 679; 91 Vt., 295;
L.R.A., [1917E], 559; Ferguson vs. Board of Sup'rs of Roanoke County, 113 S.E., 860; 133
Va., 561; Rainy Lake River Corp. vs. Rainy River Lunber Co., 27 Ont. L., 151; 6 Dom. L. R.,
401; 22 Ont. W. R. 952.) So that if there has been no state grant, there can be no toll or
turnpike road. In the case before us, the private way has been established and is being
maintained by the plaintiff, a private entity, for its own accommodation and not by virtue
of a grant from the state.

But even if we were to assume that the private way of the plaintiff here is property clothed
with public interest, the only inference would be that it is subject to governmental or
public regulation and control or, as some courts put it, to the regulatory power of the
state, exercised for the common good (Fisher vs. Yangco Steamship Co., 31 Phil., 1; De
Villata vs. Stanley, 32 Phil., 541; 51 C. J., p. 9) by the legislature (State vs. Holm, 138 Minn.,
281; 164 N.W., 989), either directly or through administrative bodies endowed with
power to that end (Atlantic Coast Line R. Co. vs. North Carolina Corp. Comm., 206 U. S., 1;
27 S. Ct., 585; 51 Law. ed., 933; 11 Ann. Case, 398; In Re Petition for Increase of Street Car
Fares, 179 N. C., 151; 101 E., 619).

The philosophy inseparable from the logic of the adjudicated cases is based on the
overwhelming power of regulation possessed by the state in the public interest. A finding,
therefore, that the private way in question is property affected with a "public interest"
leads to a recognition of the public power or regulation and no more. The fact, for
instance, that the plaintiff has opened a way to the public and charges a fee or toll on
motor vehicles for hire may lead the legislature or the administrative authorities to
intervene and regulate and, if necessary, to determine the reasonableness of the fee
charged under its rate-fixing authority.
Even as regards public utilities, courts have held with unerring uniformity that the utility
itself may prescribe rules and regulations for the due and proper conduct of its business,
and the protection of itself against fraud, injury or undue risk and liability, the only
limitations being that said rules shall be lawful and reasonable. The utility may enforce
compliance with its rules by those dealing with it and may refuse or discontinue service to
one who does not conform to its rules. (See Thurston vs. Union Pacific R. Co., 4 Dill. [U. S.],
321; 23 Fed. Cas. No. 14019; 13 Alb. L. J., 393; 8 Chic. Leg. N., 323; 22 Int. Rev. Rec., 251;
Brown vs. Memphis, & C. R. Co., 5 Fed., 499; 7 Fed., 51; Gray vs. Cincinnati Southern R. Co.,
11 Fed., 683; Hewlett vs. Western Union Tel. Co. [C. C.], 28 Fed., 181;
Bluthenthal vs. Southern Ry. Co., 84 Fed., 920; Armstrong vs. Montgomery St. Ry. Co., 123
Ala., 233; 26 So., 349; Birmingham Ry., L. & P. Co. vs. Littleton, 201 Ala., 141; 77 So., 565,
570; Weigard vs. Alabama Power Co., 177 So., 206; McCook vs. Nothup, 65 Ark., 225; 45
S.W., 547; California Powder Works vs. Atlantic & P. R. Co., 113 Cal., 329; 45 Pac., 691; 36 L.
R. A., 648; Southern Ry. Co. vs. Watson, 110 Ga., 681; 36 S. E., 209; Southern Ry.
Co. vs. Howard, 111 Ga., 842; 36 S. E., 213; Macon, etc. Ry. Co. vs. Johnson, 28 Ga., 409;
Coyle vs. Southern Ry. Co., 112 Ga., 121; 37 S. E., 163; Central of Georgia Ry. Co. vs. Motes,
117 Ga., 923; 43 S. E., 990; 62 L. R. A., 507; 97 Am. St. Rep., 223; Southern Ry. Co. vs. Bailey,
143 Ga., 610; 85 S. E., 847, 848; L. R. A. [1915E], 1043; Railroad Commn. vs. Louisville, etc.,
R. Co., 140 Ga., 817; 80 S. E., 327; L. R. A. [1915E], 902; Ann. Cas. [1915A], 1018;
Huston vs.City Gas. etc., Co., 158 Ill. App., 307; Chicago etc., R. Co. vs. Williams, 55 Ill., 185; 8
Am. Rep., 641; Milwaukee Malt Extract Co. vs. Chicago, etc., R. Co., 73 Iowa, 98; 34 N. W.,
761; Gregory vs. Chicago, etc., R. Co., 100 Iowa, 345; 69 N. W., 532; Pittsburg, etc., R.
Co. vs. Vandyne, 57 Ind., 576; 26 Am. Rep., 68; Louisville, etc., R. Co. vs.Wright, 18 Ind. App.,
125; 147 N. E., 491; Cox vs. City of Cynthiana, 123 Ky., 363; 96 S. W., 456; 29 Ky. L., 780;
Louisville Tobacco Warehouse Co. vs. Louisville Water Co., 162 Ky., 478; 172 S. W., 928;
McDaniel vs. Faubush Tel. Co., 106 S. W., 825; 32 Ky. L., 572; Day vs. Owen, 5 Mich., 520; 72
Am. Dec., 62; Faber vs. Chicago Great Western R. Co., 62 Minn., 433; 64 N. W., 918; 36 L. R.
A., 789; Daniel vs. North Jersey St. Ry. Co., 64 N. J. L., 603; 46 Atl., 625; State vs. Water
Supply Co. of Albuquerque, 19 N. W. 36; 140 P., 1059, 1060; L. R. A. [1915A], 246; Ann. Cas.
[1916E], 1290; People vs. Babcock, 16 Hun. [N. Y.], 313; Freedom vs. New York Cent., etc.,
R. Co., 24 N. Y. App. Div. 306; 48 N. Y. Sup. 584; Montgomery vs. Buffalo Ry. Co., 24 N. Y.
App. Div., 454; 48 N. Y. Sup., 849; Dowd vs. Albany Ry. Co., 47 N.Y. App. Div., 202; 62 N.Y.
Sup., 179; Peck vs. N. Y. Cent., etc., R. Co., 70 N. Y., 587; Texas, etc., R. Co. vs. Johnson, 2 Tex.
App. Civ. Cas., sec. 185; Guthrie Gas. Co. vs. Board of Education, 64 Okl., 157; 166 P., 128; L.
R. A. [1918D], 900; Henderson Coal Co. vs. Public Serv. Commn., 73 Pa. Super., 45;
McMillan vs. Federal St., etc., Ry. Co., 172 Pa. St., 523; 33 Atl., 560; State vs. Goss, 59 Vt.,
266; 9 Atl., 829; 59 Am. Rep., 706; Stevenson vs. West Seattle Land, etc., Co., 22 Wash., 84:
60 Pac., 51; Chicago, etc., Ry. Co. vs. Williams, 55 Ill., 185; 8 Am. Rep., 641.) That a
corporation engaged in business affected with "public interest" may prescribe reasonable
rules and charges for conducting its business is well settled. (McDaniel vs. Faubush
Telephone Co., supra.) This is a right which exists independently of any statutory
enactment (Weigand vs. Alabama Power Co., supra).
That persons engaged in business clothed with a "public interest" may make reasonable
discriminations may, furthermore, be illustrated by taking innkeepers as an example. The
keeper of an inn may make reasonable and proper rules governing the conduct of his
business (14 R. C. L., p. 502). In so doing, he may refuse to receive as guests those who do
not come in a situation in which they are fit to be received (Bonner vs. Welborn, 7 Ga., 296,
334, 337; Bowlin vs. Lyon, 67 Ia., 536; 25 N. W., 766; 56 Am. Rep., 355;
Markham vs. Brown, 8 N. H., 523; 31 Am. Dec., 209; State vs. Steele, 106 N. C., 766; 11 S. E.
478; 19 A. S. R., 573; 8 L. R. A., 516; Pidgeon vs. Legge, 5 Week. Rep., 649). He may,
therefore, admit to his inn only persons of good character and well demeaned
(Clemons vs. Meadows, 123 Ky., 178; 94 S. W., 13; 124 A. S. R., 339; 6 L. R. A. [N. S.], 847;
Atwater vs. Sawyer, 76 Me., 539; 49 Am. Rep., 634), and those who are free from any
contagious or infectious disease (Jackson vs. Virginia Hot Springs Co., 213 Fed., 969). A
person who is disorderly or is of suspicious, immoral or objectionable character may be
refused admission by the innkeeper (Markham vs. Brown, supra; Goodenow vs. Travis, 3
Johns., 427; Holden vs. Carraher, 195 Mass., 392; 81 N. E., 261; 11 Ann. Cas., 724;
State vs. Steele, supra; McHugh vs. Schlosser, 159 Pa. St., 480; 28 Atl., 291; 39 A. S. R., 699;
23 L. R. A., 574; Nelson vs. Bodt, 180 Fed., 779; Watkins vs. Cope, 84 N. J. L., 143; 86 Atl.,
545; Fraser vs. McGibbon, 10 Ont. Week. Rep., 54; Howell vs. Jackson, 6 Car. & P., 723;
Rex vs. Ivens, 7 Car. & P., 213; Thompson vs. McKenzie, 1 K. B., 905; 77 L. J. K. B. N. S., 605;
98 L. T. N. S., 896; 24 Times L. Rep., 330; 72 J. P., 150; 52 Sol. Jo., 302; Goodenow vs. Travis,
3 Jonhs., 427). And a person who, once inside the inn, does not demean properly may be
refused further service and may be ejected, by force, if necessary (Lehnan vs. Hines, 88
Kan., 58; 127 Pac., 612; 42 L. R. A. [N. S.], 830 and note; Holden vs. Carraher, 195 Mass.,
392; 81 N. E., 261; 11 Ann. Cas., 724 and note; De Wolf vs. Ford, 193 N. Y., 397; 86 N. E.,
527; 127 A. S. R., 969; 21 L. R. A. [N. S.], 860; State vs. Steele, supra;
McHugh vs. Scholsser, supra; Chase vs. Knabel, 46 Wash, 484; 90 Pac., 642, 12 L. R. A. [N.
S.], 1155; 2 British Rul. Cas., 692). Even the exclusion of patrons on account of the race to
which they belong has been sustained improperly, I believe, on the ground that they are
objectionable to other patrons and injure thereby the business of the innkeeper
(State vs. Steele, supra). And it has been held that a prize fighter who had broken the laws
of various states (Nelson vs. Boldt, 180 Fed., 779; Watkins vs. Cope, supra), or a card sharp
(Watkins vs. Cope, supra), or a person who has the habit of visiting inns with big dogs
which were an annoyance to the guests and a nuisance to the innkeeper (Reg. vs. Rymer, L.
R. 2 Q. B. Div., 136; 46 L. J. Mag. Cas. N. S., 108 25 Week. Rep., 415; 13 Cox, C. C., 378; 35 L.
T. N. S., 774) may be refused admission.

In the case at bar, it is not seriously contended that the plaintiff, by opening the road in
question, has become a public utility. In this jurisdiction, the term "public utility" has a
technical meaning and refers to the enterprises mentioned in section 13 of Act No. 3108,
as amended by Act No. 4033. This is admitted in the foregoing opinion. The difficulty
arises because "public utility" is confused with "public interest."
III. The foregoing opinion, by denying the right of the owner of the private way to impose
what I consider is a reasonable limitation upon the use of its property, undermines the right
of ownership and its incidents.

Briefly stated, the case is this: Plaintiff is the owner of a sugar central and the premises on
which it is located in Manapla, Occidental Negros. Realizing the necessity of constructing a
private way through its property for its own convenience and the convenience of persons
who may have dealings with it, it did open one to connect its property with the provincial
road. The way is about a kilometer in length and terminates at the mill site of the
hacienda. It was built at the expense of the owner, without any contribution from anyone.
It is guarded by a gate keeper employed and paid by the owner itself. It was opened not at
the behest of any public demand or necessity but primarily for the sole convenience of the
owner. The defendant, Serafin Hidalgo, is the keeper of a tienda situated in a contiguous
hacienda belonging to Luciano Aguirre. The tienda is located almost on the borderline of
the hacienda of the plaintiff. Hidalgo in this store sells and otherwise dispenses tuba which
intoxicates the laborers of the plaintiff, incapacitates them for work and breaks their
morale. The damage to the plaintiff is positive and real. It is not mere "bare possibility" as
stated in the foregoing opinion. Upon these facts, the foregoing opinion holds that the
defendant can not be prohibited by the plaintiff from using the latter's private way. I hold
otherwise. I believe that the plaintiff may prohibit the defendant from using its private
property. Stated otherwise, the use by Hidalgo of the private way of the plaintiff may be
conditioned upon his not carrying tuba. Plaintiff may not, to be sure, prevent the sale
of tuba outside the limits of its property. This is not pretended in this case. But because
plaintiff may not prohibit dispensation by the defendant of the intoxicating beverage
outside of its property, does it follow that it is in duty bound to offer facility to the
defendant for the sale of tuba and the consequent intoxication of its laborers? Is it under
any obligation, moral or legal, to do this? In other words, can plaintiff be compelled to
contribute, directly or indirectly, to the infliction upon itself of an admittedly real and
positive damage and provide the means for its own destruction? To ask these questions is
to answer them. That you may, for instance, hang a man because you have the physical or
legal power to do so is conceivable, but that you may not only hang him but also compel
him to hang himself is only possible among barbarians. Such a result is not possible even
under the "Declaration of Rights of the Laboring and Exploited People by the Third All-
Russian Congress of Soviets of Workers', Soldiers' and Peasants' Deputies." Let me
observe that social and economic equilibrium should be maintained by striking the proper
balance. One extreme is as vicious and dangerous as the other. There is as much danger of
destruction from the devastating winds blowing from the Caucasus and the Ural
mountains as from the infectious and hallowed breath originating from the castles of the
staggering feudal lords of Europe. Social storm is produced one way or the other.

The inviolability of private property dates as far back as the days long past when primitive
society employed force to protect its collective ownership. Upon the change of the
propriety tenure from collectivism to individualism, the consequent upon the growth of
the Roman concept of propriety, private force was substituted by state authority as the
sanctioning power of ownership. Later evolution of civil society manifested the growth of
state control power. The Philippines finds herself engulfed in the vortex of this modern
trend of greater state control of private property. Our Constitution, for instance, expressly
authorizes the National Assembly to determine by law the size of private agricultural land
which individuals, corporations and associations may require and hold, subject only to
rights existing prior to the enactment of such law (Art. XII, sec. 3). It also provides that the
State, upon payment of just compensation, may transfer to public ownership utilities and
other private enterprises to be operated by the Government (Art. XII, sec. 1). And it
permits the National Assembly to authorize, upon payment of just compensation, the
expropriation of lands to be subdivided into small lots and conveyed at cost to individuals
(Art. XII, sec. 4). This latter provision constitutes an extension of the power of eminent
domain. The settled principle is that private property shall be taken only for public use
(Visayan Refining Co. vs. Camus and Paredes, 40 Phil., 550; People ex rel. Detroit & H. R.
Co. vs. Salem, 20 Mich., 452; 4 Am. Rep., 500). A provision to this effect is found in the Bill
of Rights of our Constitution (Art. III, sec. 1, par. 2. See also Ordinance appended to the
Constitution, sec. 1, par. 12; Civil Code, art. 349; Code of Civil Procedure, sec. 241; Adm.
Code, art. 2245.) Similar provisions are to be found in the Fifth Amendment to the
Constitution of the United States and in the constitutions of the great majority of the states
of the Union. Some state constitutions even go to the extent of expressly prohibiting the
taking of property for private use (Alabama [1901], I, 23; Arizona [1912], II, 17; Colorado
[1876], II, 14, 15; Georgia [1877] I, iii, par. I; Missouri [1875], II, 20; Washington [1889], I,
16; Wyoming [1889], I, 32, 33). But whilst innovations have been introduced to enlarge
the control by the public power of private property, the Filipino philosophy of the
inviolability of property right has tarried unaltered behind the thin veneer of our
Constitution. By providing in the Bill of Rights that no person shall be deprived of
property without due process of law, that private property shall not be taken for public
use without just compensation, that the people shall be secure in their possessions against
unreasonable searches and seizures, that no law impairing the obligation of contracts shall
be passed, the Filipino people, for their own protection, stamped upon the right of private
ownership an inviolability — a deep and sacred impress — which can not be easily wiped
out or frittered away until it is no more. The protection of private right, it seems to me, is a
reflection of our inherent temperament as a people, and albeit fundamental principles
must be construed in the light of changing conditions and circumstances, the fabric with
which our social and political organizations have been wrought or woven into a lasting
whole, has remained unaltered. And not even the principle of social justice, vital and
salutary as it is, can be invoked to annihilate property rights.

Restrictions upon the paramount property right lodged in the private individual arise only
from the superior right of the state, the legal rights of third persons and the general duties
resting upon the owner as law-abiding citizen. In the language of Chief Justice Shaw in
Commonwealth vs. Alger (7 Cush. [Mass.], 53), "We think it as a settled principle, growing
out of the nature of well ordered civil society, that every holder of property, however
absolute and unqualified may be his title, holds it under the implied liability that his use of
may be so regulated, that it shall not be injurious to the equal enjoyment of their property,
nor injurious to the rights of the community. All property in this commonwealth, as well
that in the interior as the bordering on tidewaters, is derived directly or indirectly from
the government, and held subject to those general regulations, which are necessary to the
common good and general welfare. Rights of property, like all other social and
conventional rights, are subject to such reasonable limitations in their enjoyment, as shall
prevent them from being injurious, and to such reasonable restraints and regulations
established by law, as the legislature, under the governing and controlling power vested in
them by the Constitution, may think necessary and expedient." (See also Mugler vs. Kansas,
123 U.S., 623; 8 Sup. Ct., 273; 31 Law ed., 205.)

IV. From what has been said, it does not, however, follow that plaintiff is entitled to the
equitable remedy of injunction. In the first place, the plaintiff styled the relief it is seeking as
an "Accion Negatoria" which, under the old Spanish procedural law and under the Roman
law, consisted in the right of a landowner to defend the free dominion of his tenement.
This action which had specific application to servitudes has, however, been repealed by
the Code of Civil Procedure now in force. The right of the plaintiff should, consequently, be
tested by the rules governing the issuance of the new remedy of injunction. The
circumstances under which, in accordance with the former procedural law, the accion
negatoria could properly issue, would not necessarily justify the issuance of an injunction,
as defined and provided in the new Code (as to the other Spanish interdictos de adquirir,
de retener and de recobrar or de despojo, see Devesa vs. Arbes, 13 Phil., 273, 279;
Liongson vs. Martinez, 36 Phil., 948, 952). In the second place,injunction, being an equitable
remedy, the granting thereof is dependent upon the sound discretion of the court (32 C. J.,
pp. 29-33; 14 R. C. L., pp. 307, 308). It is only in clear cases of abuse of discretion on the
part of the trial judge that review on appeal should be made (32 C. J., p. 33). "There is no
power the exercise of which is more delicate, which requires greater caution, deliberation,
and sound discretion, or more dangerous in a doubtful case, than the issuing an injunction;
it is the strong arm of equity, that never ought to be extended unless to cases of great
injury where courts of law cannot afford an adequate or commensurate remedy in
damages. The right must be clear, the injury impending or threatened, so as to be averted
only by the protecting preventive process of injunction." (Bonaparte vs. Camden, etc., R.
Co., 3 Fed. Cas. No. 1617; Baldw., 205, 217.) In the third place, the remedy sought here is
not against the transportation of tuba by the defendant through the premises of the
plaintiff, but the entire exclusion therefrom of the defendant regardless of whether he
carries tuba or not. In the fourth place, the revocation of the judgment of the court below
would exclude the defendant alone from the use of the private way while the general
public will be permitted to do so. The defendant would be excluded not only from the use
of the private premises of the plaintiff, but also from the way left open to the public,
regardless of whether he is carrying tuba or not. The result being clearly unjust, the
extraordinary legal remedy of injunction should not be granted. (Truly vs.Wanzer, 5 How.,
141; 12 Law. ed., 88; Irwin vs. Dixion, 9 How., 11; 13 Law ed., 25; Sands vs. Marburg, 36
Ga., 534; 91 Am. Dec., 781; Beidenkopf vs. Des Moines Life Ins. Co., 160 Ia., 629; 142 N. W.,
434; 46 L. R. A. [N. S.], 290; Edwards vs. Alluez Min. Co., 38 Mich., 46; 31 Am. Rep., 301;
Troy, etc., R. Co. vs. Boston, etc., Ry. Co., 86 N. Y., 107; Eastman Kodak Co. vs. Warren, 108
Misc., 680; 178 N. Y. S., 14 [reversed on other grounds, 189 App. Div., 556; 179 N. Y. S.,
325, Farmer vs. St. Paul, 65 Minn., 176; 67 N. W., 990; 33 L. R. A., 199]; Marvel vs. Jonah, 81
N. J. Eq., 369; 86 A., 968 [reversed on other grounds, 83 N. J. Eq., 295; 90 A., 1004, L. R. A.
(1915B), 206; Rogers vs.O'Brien, 153 N. Y., 357; 47 N. E., 456; Wendell vs. Conduit Mach.
Co., 74 Misc. 201; 133 N. Y. S., 758; Higgins vs.Higgins, 57 N. H., 224; Atchinson etc., Ry.
Co. vs. Meyer, 62 Kan., 696; 64 P., 597; Cincinnati, etc. R. Co. vs. Miami, etc. Transp. Co., 1
Oh. Cir. Ct. (N. S.), 117; Ardmore vs. Fraley, 65 Okl., 14; 162 P., 211; Heilman vs. Lebanon,
etc., St. Ry. Co., 175 Pa., 188; 34 A., 647; Messner vs. Lykens, etc., R. Co., 13 Pa. Super 429;
Mackintyre vs. Jones, 9 Pa. Super., 543; Speese vs. Schuylkill River East Side R. Co., 10 Pa.
Dist., 515].)

In closing, I cannot but condemn the action of O. P. Ankerson, auditor of the plaintiff
company, in overturning the receptacles (balading) of tuba, which the defendant
attempted to carry through the premises of the plaintiff company, in defiance of the
latter's repeated prohibition. Righteous indignation at the misconduct of an employee of
the plaintiff company and the damage caused the defendant, however, should not carry us
beyond the merits of the present controversy. The protection of the property rights of the
plaintiff is one thing and the condemnation of the acts of vandalism of an employee of the
plaintiff another thing.

Avanceña, C.J., and Diaz, J., concur.

VILLAREAL, J., dissenting:

I concur with the opinion of Justice Laurel in so far as he dissents from the opinion of
Justice Recto, but I dissent from it in so far as he concurs with opinion.

In concurring with the opinion of Justice Recto, Justice Laurel says: "In the fourth place, the
revocation of the judgment of the court below would exclude the defendant alone from the
use of the private way while the general public will be permitted to do so. The defendant
be excluded not only from the use of the private premises of the plaintiff, but also from the
way left open to the public regardless of whether he is carrying tuba or not. The result
being clearly unjust, the extraordinary legal remedy of injunction should not be granted."
The facts in this case show that said defendant was warned several times not to pass on
said road when carrying tuba to the adjoining "Hacienda Sañgay" where he sells it to the
plaintiff's workmen who become intoxicated and unfit for work. The repeated warnings
were disregarded by the defendant, until one day the auditor of the said plaintiff became
so disgusted that he could not refrain from stopping his car and compelling him to unload
the tuba. If the North Negros Sugar Co., Inc., as the owner of the private road in question,
has a right to regulate its use by imposing reasonable restrictions and limitations, to
prohibit its use by the defendant who has repeatedly disregarded the warning of its
auditor, thus becoming a persona non grata, is certainly not unjust. To force the owner of a
private road to allow the use of said road by a person who has incurred his displeasure, if
not his hatred, just because he allows other persons to pass through it, cannot under
whatever consideration, be just. In order to avoid taking the law into its own hands in
excluding the defendant who has become undesirable person to it, the plaintiff as a law
abiding corporation, has come to the courts to seek help in the enforcement of its property
rights. The opinion of Justice Laurel, concurred in by Chief Justice and Justice Diaz, while
recognizing the right of said plaintiff to regulate the use of its private road by imposing
upon the users reasonable restrictions and limitations, refuses it the remedy it seeks to
help it in preventing an undesirable person to use its private road, leaving to it no
alternative except either to take the law into its own hands or to close the road to
everybody with the exception of those who deal with it in its business.

I am, therefore, of the opinion that the writ of injunction, as an auxiliary remedy, should be
granted, and the judgment of the court below should be revoked.

Imperial, J., concur.

Footnotes

RECTO, J.:
1 The sworn statement was in fact presented by the plaintiff's manager Greenfield
(p. 4, B. E.).
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 77628 March 11, 1991

TOMAS ENCARNACION, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and THE INTESTATE ESTATE OF THE LATE
EUSEBIO DE SAGUN and THE HEIRS OF THE LATE ANICETA MAGSINO VIUDA DE
SAGUN,* respondents.

Esteban M. Mendoza for petitioner.

Oscar Gozos for private respondents.

FERNAN, C.J.:

Presented for resolution in the instant petition for review is the not-so-usual question of
whether or not petitioner is entitled to a widening of an already existing easement of right-
of-way. Both the trial court and the Appellate Court ruled that petitioner is not so entitled,
hence the recourse to this Court. We reverse.

The facts are undisputed.

Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta Magsino
Viuda de Sagun are the owners of two adjacent estates situated in Buco, Talisay,
Batangas. ** Petitioner owns the dominant estate which has an area of 2,590 square
meters and bounded on the North by Eusebio de Sagun and Mamerto Magsino, on the
south by Taal Lake, on the East by Felino Matienzo and on the West by Pedro Matienzo.
Private respondents co-own the 405-square-meter servient estate which is bounded on
the North by the National Highway (Laurel-Talisay Highway), on the South by Tomas
Encarnacion, on the East by Mamerto Magsino and on the West by Felipe de Sagun. In
other words, the servient estate stands between the dominant estate and the national
road.

Prior to 1960, when the servient estate was not yet enclosed with a concrete fence,
persons going to the national highway just crossed the servient estate at no particular
point. However, in 1960 when private respondents constructed a fence around the
servient estate, a roadpath measuring 25 meters long and about a meter wide was
constituted to provide access to the highway. One-half meter width of the path was taken
from the servient estate and the other one-half meter portion was taken from another lot
owned by Mamerto Magsino. No compensation was asked and non was given for the
portions constituting the pathway.1
It was also about that time that petitioner started his plant nursery business on his land
where he also had his abode. He would use said pathway as passage to the highway for his
family and for his customers.

Petitioner's plant nursery business through sheer hard work flourished and with that, it
became more and more difficult for petitioner to haul the plants and garden soil to and
from the nursery and the highway with the use of pushcarts. In January, 1984, petitioner
was able to buy an owner-type jeep which he could use for transporting his plants.
However, that jeep could not pass through the roadpath and so he approached the
servient estate owners (Aniceta Vda. de Sagun and Elena Romero Vda. de Sagun) and
requested that they sell to him one and one-half (1 1/2) meters of their property to be
added to the existing pathway so as to allow passage for his jeepney. To his utter
consternation, his request was turned down by the two widows and further attempts at
negotiation proved futile.

Petitioner then instituted an action before the Regional Trial Court of Batangas, Branch 6
(Tanauan) to seek the issuance of a writ of easement of a right of way over an additional
width of at least two (2) meters over the De Saguns' 405-square-meter parcel of land.2

During the trial, the attention of the lower court was called to the existence of another exit
to the highway, only eighty (80) meters away from the dominant estate. On December 2,
1985, the lower court rendered judgment dismissing petitioner's complaint. It ruled:

It is clear, therefore, that plaintiff at present has two outlets to the highway: one,
through the defendants' land on a one meter wide passageway, which is bounded on
both sides by concrete walls and second, through the dried river bed eighty meters
away. The plaintiff has an adequate outlet to the highway through the dried river
bed where his jeep could pass.

The reasons given for his claim that the one-meter passageway through defendants'
land be widened to two and one-half meters to allow the passage of his jeep,
destroying in the process one of the concrete fences and decreasing defendants'
already small parcel to only about 332.5 square meters, just because it is nearer to
the highway by 25 meters compared to the second access of 80 meters or a
difference of only 65 meters and that passage through defendants' land is more
convenient for his (plaintiffs) business and family use are not among the conditions
specified by Article 649 of the Civil Code to entitle the plaintiff to a right of way for
the passage of his jeep through defendant's land.3

On appeal, the Court of Appeals affirmed the decision of the trial court on January 28,
1987 and rejected petitioner's claim for an additional easement.

In sustaining the trial court, the Court of Appeals opined that the necessity interposed by
petitioner was not compelling enough to justify interference with the property rights of
private respondents. The Appellate Court took into consideration the presence of a dried
river bed only eighty (80) meters away from the dominant estate and conjectured that
petitioner might have actually driven his jeep through the river bed in order to get to the
highway, and that the only reason why he wanted a wider easement through the De
Sagun's estate was that it was more convenient for his business and family needs.

After evaluating the evidence presented in the case, the Court finds that petitioner has
sufficiently established his claim for an additional easement of right of way, contrary to
the conclusions of the courts a quo.

While there is a dried river bed less than 100 meters from the dominant tenement, that
access is grossly inadequate.1âwphi1 Generally, the right of way may be demanded: (1)
when there is absolutely no access to a public highway, and (2) when, even if there is one,
it is difficult or dangerous to use or is grossly insufficient. In the present case, the river bed
route is traversed by a semi-concrete bridge and there is no ingress nor egress from the
highway. For the jeep to reach the level of the highway, it must literally jump four (4) to
five (5) meters up. Moreover, during the rainy season, the river bed is impassable due to
the floods. Thus, it can only be used at certain times of the year. With the inherent
disadvantages of the river bed which make passage difficult, if not impossible, it is if there
were no outlet at all.

Where a private property has no access to a public road, it has the right of easement over
adjacent servient estates as a matter of law.4

With the non-availability of the dried river bed as an alternative route to the highway, we
transfer our attention to the existing pathway which straddles the adjoining properties of
the De Sagun heirs and Mamerto Magsino.

The courts below have taken against petitioner his candid admission in open court that he
needed a wider pathway for the convenience of his business and family. (TSN, August 2,
1985, pp. 24-26). We cannot begrudge petitioner for wanting that which is convenient. But
certainly that should not detract from the more pressing consideration that there is a real
and compelling need for such servitude in his favor.

Article 651 of the Civil Code provides that "(t)he width of the easement of right of way
shall be that which is sufficient for the needs of the dominant estate, and may accordingly
be changed from time to time." This is taken to mean that under the law, it is the needs of
the dominant property which ultimately determine the width of the passage. And these
needs may vary from time to time. When petitioner started out as a plant nursery
operator, he and his family could easily make do with a few pushcarts to tow the plants to
the national highway. But the business grew and with it the need for the use of modern
means of conveyance or transport. Manual hauling of plants and garden soil and use of
pushcarts have become extremely cumbersome and physically taxing. To force petitioner
to leave his jeepney in the highway, exposed to the elements and to the risk of theft simply
because it could not pass through the improvised pathway, is sheer pigheadedness on the
part of the servient estate and can only be counter-productive for all the people
concerned. Petitioner should not be denied a passageway wide enough to accomodate his
jeepney since that is a reasonable and necessary aspect of the plant nursery business.

We are well aware that an additional one and one-half (1 1/2) meters in the width of the
pathway will reduce the servient estate to only about 342.5 square meters. But petitioner
has expressed willingness to exchange an equivalent portion of his land to compensate
private respondents for their loss. Perhaps, it would be well for respondents to take the
offer of petitioner seriously.5 But unless and until that option is considered, the law
decrees that petitioner must indemnify the owners of the servient estate including
Mamerto Magsino from whose adjoining lot 1/2 meter was taken to constitute the original
path several years ago. Since the easement to be established in favor of petitioner is of a
continuous and permanent nature, the indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the servient estate pursuant to Article
649 of the Civil Code which states in part:

Art. 649. The owner, or any person who by virtue of a real right may cultivate or use
any immovable, which is surrounded by other immovables pertaining to other
persons and without adequate outlet to a public highway, is entitled to demand a
right of way through the neighboring estates, after payment of the proper
indemnity.

Should this easement be established in such a manner that its use may be
continuous for all the needs of the dominant estate, establishing a permanent
passage, the indemnity shall consist of the value of the land occupied and the
amount of the damage caused to the servient estate.

xxx xxx xxx

WHEREFORE, in conformity with the foregoing discussion, the appealed decision of the
Court of Appeals dated January 28, 1987 is REVERSED and SET ASIDE. Petitioner Tomas
Encarnacion is hereby declared entitled to an additional easement of right of way of
twenty-five (25) meters long by one and one-half (1 1/2) meters wide over the servient
estate or a total area of 62.5 square meters after payment of the proper indemnity.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.

Footnotes
 * The name "Aniceta de Sagun Viuda de Magsino'' in the original caption of the
instant petition is erroneous. See the captions in the Complaint and the subsequent
Decision of the trial court.(Original Records, pp. 1 and 103).

** The servient estate originally belonged to Eusebio de Sagun, the son of Aniceta
Magsino Vda. de Sagun. After Eusebio's death, his widow Elena sold her share of the
estate to her mother-in-law and co-heir Aniceta. During the pendency of the civil
case for the grant of easement, Aniceta also died leaving six children as her heirs.
None of the children resides in the estate which as of 1985 is being administered by
Aniceta's brother, Mamerto Magsino. (Original Record, pp. 77-78; TSN, August 9,
1985, pp. 22, 30-31).
1 TSN, August 9, 1985, pp. 17-19; July 19, 1985, p. 30.
2 Civil Case No. T-392.
3 Rollo, p. 33,
4 Jariol vs. Court of Appeals, G.R. No. 57641, October 23, 1982, 117 SCRA 913.
5 See Original Record, pp. 44-45.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 911 March 12, 1903

MAXIMO CORTES, plaintiff-appellant,

vs.
JOSE PALANCA YU-TIBO, defendant-appellant.

Felipe G. Calderon, for appellant.

Simplicio del Rosario, for appellee.

MAPA, J.:

This suit was brought to obtain an injunction, in accordance with the provisions of section
162 to 172 of the Code of Civil Procedure, for the purpose of restraining the continuation
of certain buildings commenced by the defendant. The court below issued a preliminary
injunction during the trial, but, upon, rendering final judgment, dissolved the injunction,
with the costs against the plaintiff. The latter excepted to this judgment and assigns error:

In the trial the following facts were admitted without contradiction:

(1) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff, has
certain windows therein, through which it receives light and air, said windows opening on
the adjacent house, No. 63 of the same street; (2) that these windows have been in the
existence since the year 1843 and (3) that the defendant, the tenant of the said house No.
63, has commenced certain work with the view to raising the roof of the house in such a
manner that one-half of the windows in said house No. 65 has been covered, thus
depriving the building of a large part of the air and light formerly received through the
window. In its decision the court below practically finds the preceding facts, and further
finds that the plaintiff has not proven that he has, by any formal act, prohibited the owner
of house No. 63, from making improvements of any kind therein at any time prior to the
complaint.

The contention of the plaintiff is that by the constant and uninterrupted use of the
windows referred to above during a period of fifty-nine years he acquired from
prescription an easement of light in favor of the house No. 65, and as a servitude upon
house No. 63, and, consequently, has acquired the right to restrain the making of any
improvements in the latter house which might in any manner be prejudicial to the
enjoyment of the said easement. He contends that the easement of light is positive; and
that therefore the period of possession for the purposes of the acquisition of a prescriptive
title is to begin from the date on which the enjoyment of the same commenced, or, in other
words, applying the doctrine to this case, from the time that said windows were opened
with the knowledge of the owner of the house No. 63, and without opposition on this part.

The defendant, on the contrary, contends that the easement is negative, and that therefore
the time for the prescriptive acquisition thereof must begin from the date on which the
owner of the dominant estate may have prohibited, by a formal act, the owner of the
servient estate from doing something which would be lawful but for the existence of the
easement.

The court below in its decision held in the easement of light is negative, and this ruling has
been assigned by the plaintiff as error to be corrected by this court.

A building may receive light in various manners in the enjoyment of an easement of light,
because the openings through which the light penetrates may be made in one's own wall,
in the wall of one's neighbor, or in a party wall. The legal doctrine applicable in either one
of these cases is different, owing to the fact that, although anyone may open windows in
his own wall, no one has a right to do so in the wall of another without the consent of the
owner, and it is also necessary, in accordance with article 580 of the Civil Code, to obtain
the consent of the other coowner when the opening is to be made in a party wall.
This suit deals with the first case; that is, windows opened in a wall belonging to the wife
of the plaintiff, and it is this phase of the easement which it is necessary to consider in this
opinion.

When a person opens windows in his own building he does nothing more than exercise an
act of ownership inherent in the right of property, which, under article 348 of the Civil
Code, empowers him to deal with his property as he may see fit, with no limitations other
than those established by law. By reason of the fact that such an act is performed wholly
on a thing which is wholly the property of the one opening the window, it does not in itself
establish any easement, because the property is used by its owner in the exercise of
dominion, and not as the exercise of an easement: "For a man," says law 13, title 31,
third partida, "should not use that which belongs to him as if it were a service only, but as his
own property." Coexistent with this right is the right of the owner of the adjacent property
to cover up such windows by building on his own land or raising a wall contiguously to the
wall in which the windows are opened (art. 581 of the same Code), by virtue of the
reciprocity of rights which should exist between abutting owners, and which would cease
to exist if one could do what he pleased on his property and the other could not do the
same on his. Hence it is that the use of the windows opened in a wall of one's own
property, in the absence of some covenant or express agreement to the contrary, is
regarded as an act of mere tolerance on the part of the owner of the abutting property
(judgments of the supreme court of Spain of the 17th of May, 1876; 10th of May, 1884;
30th of May, 1890), and does not create any right to maintain the windows to the
prejudice of the latter (judgment of the supreme court of Spain of the 13th of June, 1877).
The mere toleration of such an act does not imply on the part of the abutting owner a
waiver of his right to freely build upon his land as high as he may see fit, nor does it avail
the owner of the windows for the effects of possession according to article 1942 of the
Civil Code, because it is a mere possession at will. From all this it follows that the
easement of light with respect to the openings made in one's own edifice does not consist
precisely in the fact of opening them or using them, inasmuch as they may be covered up
at any time by the owner of the abutting property, and, as Manresa says in his
commentaries on the Civil Code, "there is no true easement as long as the right to impede its
use exists." The easement really consists of in prohibiting or restraining the adjacent
owner from doing anything which may tend to cut off or interrupt the light; in short, it is
limited to the obligation of not impeding the light (ne luminibus officiatur). The latter
coincides in its effects, from this point of view, with the obligation of refraining from
increasing the height of a building (altius non tollendi), which, although it constitutes a
special easement, has for its object, at times, the prevention of any interruption of the light
enjoyed by the adjacent owner.

It will be readily observed that the owner of the servient estate subject to such easement
is under no obligation whatsoever to allow anything to be done on his tenement, nor to do
anything there himself, but is simply restrained from doing anything thereon which may
tend to cut off the light from the dominant estate, which he would undoubtedly be entitled
to do were it not for the existence of the easement. If, then, the first condition is that which
is peculiar to positive easements, and the second condition that which is peculiar to
negative easements, according to the definition of article 533 of the Civil Code, it is our
opinion that the easement of lights in the case of windows opened in one's own wall is of a
negative character, and, as such, can not be acquired by prescription under article 538 of
the Civil Code, except by counting the time of possession from the date on which the
owner of the dominant estate may, by a formal act have prohibited the owner of the
servient estate from doing something which it would be lawful from him to do were it not
for the easement.

The supreme court of Spain, in its decisions upon this subject, has established these
principles by a long line of cases. In its judgment of May 14, 1861, the said court holds that
"the prescription of the easement of lights does not take place unless there has been some
act of opposition on the part of the person attempting to acquire such a right against the
person attempting to obstruct its enjoyment." The easements of light and view," says the
judgment of March 6, 1875, "because they are of a negative character, can not be acquired
by a prescriptive title, even if continuous, or although they may have been used for more
than twenty-eight years, if the indispensable requisite for prescription is absent, which is
the prohibition on the one part, and the consent on the other, of the freedom of the
tenement which it is sought to charge with the easement." In its judgment of June 13,
1877, it is also held that use does not confer the right to maintain lateral openings or
windows in one's own wall to the prejudice of the owner of the adjacent tenement, who,
being entitled to make use of the soil and of the space above it, may, without restriction,
build on his line or increase the height of existing buildings, unless he has been " forbidden
to increase the height of his buildings and to thus cut off the light," and such prohibition has
been consented to and the time fixed by law subsequently expired. The court also holds
that it is error to give the mere existence or use of windows in a wall standing wholly on
the land of one proprietor the creative force of true easement, although they may have
existed from the time immemorial. Finally, the judgments of the 12th of November, 1899,
and the 31st of May, 1890, hold that "as this supreme court has decided, openings made in
walls standing wholly on the land of one proprietor and which overlook the land of
another exist by mere tolerance in the absence of an agreement to the contrary, and can
not be acquired by prescription, except by computing the time from the execution of some
act of possession which tends to deprive the owner of the tenement affected of the right to
build thereon." Various other judgments might be cited, but we consider that those above
mentioned are sufficient to demonstrate the uniformity of the decisions upon this point. It
is true that the supreme court of Spain, in its decisions of February 7 and May 5, 1896, has
classified as positive easements of lights which were the object of the suits in which these
decisions were rendered in cassation, and from these it might be believed at first glance
that the former holdings of the supreme court upon this subject had been overruled. But
this is not so, as a matter of fact, inasmuch as there is no conflict between these decisions
and the former decisions above cited.

In the first of the suits referred to, the question turned upon two houses which had
formerly belonged to the same owner, who established a service of light on one of them
for the benefit of the other. These properties were subsequently conveyed to two different
persons, but at the time of the separation of the property nothing was said as to the
discontinuance of the easement, nor were the windows which constituted the visible sign
thereof removed. The new owner of the house subject to the easement endeavored to free
it from the incumbrance, notwithstanding the fact that the easement had been in existence
for thirty-five years, and alleged that the owner of the dominant estate had not performed
any act of opposition which might serve as a starting point for the acquisition of a
prescriptive title. The supreme court, in deciding this case, on the 7th of February, 1896,
held that the easement in this particular case was positive, because it consisted in
the active enjoyment of the light. This doctrine is doubtless based upon article 541 of the
Code, which is of the following tenor: "The existence of apparent sign of an easement
between two tenements, established by the owner of both of them, shall be considered,
should one be sold, as a title for the active and passive continuance of the easement,
unless, at the time of the division of the ownership of both tenements, the contrary should
be expressed in the deed of conveyance of either of them, or such sign is taken away
before the execution of such deed."

The word "active" used in the decision quoted in classifying the particular enjoyment of
light referred to therein, presupposes on the part of the owner of the dominant estate a
right to such enjoyment arising, in the particular case passed upon by that decision, from
the voluntary act of the original owner of the two houses, by which he imposed upon one
of them an easement for the benefit of the other. It is well known that easements are
established, among other cases, by the will of the owners. (Article 536 of the Code). It was
an act which was, in fact, respected and acquiesced in by the new owner of the servient
estate, since he purchased it without making any stipulation against the easement existing
thereon, but, on the contrary, acquiesced in the continuance of the apparent sign thereof.
As is stated in the decision itself, "It is a principle of law that upon a division of a tenement
among various persons -- in the absence of any mention in the contract of a mode of
enjoyment different from that to which the former owner was accustomed -- such
easements as may be necessary for the continuation of such enjoyment are understood to
subsist." It will be seen, then, that the phrase "active enjoyment" involves an idea directly
opposed to the enjoyment which is the result of a mere tolerance on the part of the
adjacent owner, and which, as it is not based upon an absolute, enforceable right, may be
considered as of a merely passive character. Therefore, the decision in question is not in
conflict with the former rulings of the supreme court of Spain upon the subject, inasmuch
as it deals with an easement of light established by the owner of the servient estate, and
which continued in force after the estate was sold, in accordance with the special
provisions of article 541 of the Civil Code.

Nor is the other decision cited, of May 5, 1896, in conflict with the doctrine above laid
down, because it refers to windows opened in a party wall, and not in a wall the sole and
exclusive property of the owner of the dominant tenement, as in the cases referred to by
the other decisions, and as in the case at bar. The reason for the difference of the doctrine
in the one and the other case is that no part owner can, without the consent of the other,
make in a party wall a window or opening of any kind, as provided by article 580 of the
Civil Code. The very fact of making such openings in such a wall might, therefore, be the
basis for the acquisition of a prescriptive title without the necessity of any active
opposition, because it always presupposes the express or implied consent of the other
part owner of the wall, which consent, in turn, implies the voluntary waiver of the right of
such part owner to oppose the making of such openings or windows in such a wall.

With respect to the provisions of law 15, title 31, third partida, which the appellant largely
relied upon in this oral argument before the court, far from being contrary to it, is entirely
in accord with the doctrine of the decisions above referred to. This law provides that "if
anyone shall open a window in the wall of his neighbor, through which the light enters his
house," by this sole fact he shall acquire a prescriptive title to the easement of light, if the
time fixed in the same law (ten years as to those in the country and twenty years as to
absentees) expires without opposition on the part of the owner of the wall; but, with the
exception of this case, that is to say, when the windows are not opened in the wall of
the neighbor, the law referred to requires as a condition to the commencement of the
running of the time for the prescriptive acquisition of the easement, that "the neighbor be
prohibited from raising his house, and from thereby interrupting the light." That is to say,
he must be prohibited from exercising his right to build upon his land, and cover the
window of the other. This prohibition, if consented to, serves as a starting point for the
prescriptive acquisition of the easement. It is also an indispensable requisite, therefore, in
accordance with the law of thepartidas, above mentioned, that some act of opposition be
performed, in order that an easement may be acquired with respect to openings made in
one's own wall.

For a proper understanding of this doctrine, it is well to hold in mind that the Code of
the partidas, as well as the Roman law, clearly distinguishes two classes of easements with
respect to the lights of houses, as may be seen in law 2 of title 31, of the third partida. One
of them consists in "the right to pierce the wall of one's neighbor to open a window
through which the light may enter one's house" (equivalent to the so-called easement
of luminum of the Romans); the other is "the easement which one house enjoys over
another, whereby the latter can not at any time be raised to a greater height than it had at
the time the easement was established, to the end at the light be not interrupted." (Ne
luminibus officiatur.) For the prescriptive acquisition of the former the time must begin, as
we have seen, from the opening of the window in the neighbor's wall. As to the second, the
time commences from the date on which he was "prevented from raising his house." Some
of the judgments which establish the doctrine above laid down were rendered by the
supreme court of Spain interpreting and applying the above cited law 15, title
31, partida 3, and therefore they can not in any sense be regarded as antagonistic to the
law itself.

The question as to whether the windows of the house of the plaintiff are, or are not, so-
called regulation windows, we consider of but little importance in this case, both because
the authority of the decisions of the law of thepartidas, above cited, refers to all kinds of
windows, and not to regulation windows solely, and because the record does not disclose,
nor has the appellant even stated, the requirements as to such regulation windows under
the law in operation prior to the Civil Code, which he asserts should be applied and on
which he relies to demonstrate that he has acquired by prescription the easement in
question. With respect to the watershed which, according to the plaintiff, exists over the
window in question, the record does not disclose that the same has been destroyed by the
defendant. He expressly denies it on page 7 of his brief, and affirms (p. 8) that the tenant of
the appellant's property himself removed it, by reason of the notice served on him; on the
other hand, the judgment of the court below contains no findings with respect to this fact,
nor does it disclose the former existence of any such watershed. Furthermore, the opinion
which we have formed with respect to this matter, in so far as we are able to understand
the merits of the case, is that this shed was a mere accessory of the window, apparently
having no other purpose than that of protecting it against the inclemency of the weather;
this being so, we are of opinion that it should follow the condition of the window itself, in
accordance with the legal maxim that the accessory always follows the principal. The
appellant contends that the shed should be regarded as a projection within the provisions
of article 582 of the Code; but it is sufficient to observe that this article speaks of windows
with direct views, balconies, or similar projections, in order to conclude that the article
does not refer to such watersheds, which have not the slightest degree of similarity to
balconies, nor are they constructed for the purpose of obtaining the view -- this being the
subject-matter which this article expressly purports to control -- inasmuch as such sheds
have rather the effect of limiting the scope of the view than of increasing it.

The fact that the defendant did not cover the windows of the other house adjacent No. 63
at the time he covered the windows of the appellant, a fact which the latter adduces as
proof of the recognition on the part of the former of the prescriptive acquisition of the
easement of the light in favor of that house, which, according to his statement, is under
precisely the same conditions as the house of the plaintiff, does not necessarily imply, in
our opinion, any such recognition, as it might be the result of a mere tolerance on the part
of the defendant. Certainly the fact of his tolerating the use by the owner of that house of
such windows, supposing the facts to be as stated, does not carry with it as a result an
obligation to exercise the same forbearance with respect to the plaintiff; but whatever
may be the legal status of the windows in the house referred to with respect to the house
No. 63, we cannot pass upon the point, nor can we form suppositions concerning the
matter for the purpose of drawing conclusions of any kind therefrom to support our
opinion, for the simple reason that it is not a point at issue in the case, and more especially
because the defendant not only denied the existence of the alleged easement of light in
favor of the house referred to, but, on the contrary, he affirms that demand has been made
that the windows in said house be closed, as may be seen on page 8 of his brief.

The point discussed in this trial being whether the plaintiff has acquired the easement
which he seeks to enforce over the house of which the defendant is tenant, it is evident
that the provisions of article 585 of the Civil Code can not be invoked without taking for
granted the very point at issue. This article refers to cases in which, under any title, the
right has been acquired to have direct views, balconies, or belvederes over contiguous
property. The existence of such a right being the very point at issue, the supposition upon
which the article rests is lacking, and it is therefore not in point.

As a result of the opinion above expressed, we hold:

1. That the easement of light which is the object of this litigation is of a negative character,
and therefore pertains to the class which can not be acquired by prescription as provided
by article 538 of the Civil Code, except by counting the time of possession from the date on
which the owner of the dominant estate has, in a formal manner, forbidden the owner of
the servient estate to do an act which would be lawful were it not for the easement.

2. That, in consequence thereof, the plaintiff, not having executed any formal act of
opposition to the right of the owner of the house No. 63 Calle Rosario (of which the
defendant is tenant), to make therein improvements which might obstruct the light of the
house No. 65 of the same street, the property of the wife of the appellant, at any time prior
to the complaint, as found by the court below in the judgment assigned as error, he has not
acquired, nor could he acquire by prescription, such easement of light, no matter how long
a time have elapsed since the windows were opened in the wall of the said house No. 65,
because the period which the law demands for such prescriptive acquisition could not
have commenced to run, the act with which it must necessarily commence not having
been performed.

Therefore, we affirm the judgment of the court below and condemn the appellant to the
payment of all damages caused to the plaintiff, and to the payment of the costs of this
appeal. So ordered.

Arellano, C.J., Cooper, Willard, and Ladd, JJ., concur.

Torres, J., did not sit in this case.

ON MOTION FOR A REHEARING.

The plaintiff asks for a rehearing of the decision of the court of March 12th last upon the
ground that the same contains error:

First, because the decision holds that the window opened in the plaintiff's own wall and
watershed do not constitute the continuous and apparent easements of prospect, light,
and ventilation, or jus projitiendi and jus spillitiendi, this ruling being in opposition to the
provisions of laws 12, 14, and 15, title 31, third partida, and articles 530, 532, 533, 537,
538, 582, and 585 of the Civil Code.
This allegation is entirely unfounded, inasmuch as the decision of the court contains no
declaration as to whether the windows and watershed do or do not constitute continuous
and apparent easements, or jus projitiendi and jus spillitiendi. These questions were not
drawn into issue by the complaint, and therefore any decision thereon one way or the
other would have been mere dicta. What the court did hold was that the easement of light,
when it is sought to claim such benefit from a window opened in one's own wall, as does
the appellant with respect to the tenement of the defendant, belongs to the class of
negative easements, and that on hold on that account the time of possession for
prescriptive acquisition of the title thereto must be counted, not from the time of the
opening of the windows, but from the time at which the owner thereof has executed some
act of opposition tending to deprive the owner of the servient tenement of his right, under
the law, build upon it to such height as he might see fit in the legitimate use of his rights of
ownership. With respect to the watershed, the court held that the shed in question in the
case is not included within the class of projections referred to in article 582 of the Civil
Code, and certain it is that neither this article nor any of the other provisions of law cited
by the appellant in his motion papers established any doctrine contrary to that laid down
in the decision, either with regard to the watershed or with respect to the windows. It is
not necessary to say anything further upon this point. It is sufficient to read the text of the
laws cited to reach the conclusion that the assertion made by the appellant in his motion
papers is entirely gratuitous.

Article 582 provides that windows with direct views, balconies, or other similar
projections opening upon the tenement of one's neighbor are not permissible unless there
are two meters distance between the wall in which such openings are constructed and the
adjacent tenement. From this the appellant draws the conclusion that he who opens
windows in his own wall without respecting the distance mentioned does not exercise an
act of ownership, as stated in the decision, inasmuch as he violates an express provisions
of the law.

The conclusion reached is evidently false. The appellant confounds the facts with the law -
- an act of ownership with the right of ownership. The owner of a thing does not cease to
be such owner because in his manner of use or enjoyment thereof he violates some
provision of law. The acts which he performs, in our opinion, even if abusive or contrary to
law, are in a strict sense acts of ownership, acts in the exercise of dominion, because this
character is not derived from a greater or less degree of compliance with the provisions of
law, but from the existence of the status of owner on the part of the person who exercises
such acts. In order that the act performed by the owner of a wall in opening windows
therein be a true act of ownership it is a matter of indifference whether or not the distance
prescribed by article 582 of the Code has been respected, although, considered from a
legal point of view, it might be an illegal act, as not complying with the conditions imposed
by law.

The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to the effect that
"a man should not use that which belongs to him as if it were a service only, but as his own
property" is of general application, and does not refer to the easements which is a
property owner may establish for the benefit of his heirs, as is erroneously believed by the
appellant. The very same law provides that easements which "a man imposes upon his
house must be for the benefit of the tenement or thing of another, and not that of his own
tenement;" and this is because things are of service to their owner by reason of dominion,
and not in the exercise of a right of easement. "Res sua," says a legal maxim, "nemini jure
servitutis servit."

The provision of article 1942 of the Civil Code to the effect that acts which are merely
tolerated procedure no effect with respect to possession is applicable as much as to the
prescription of real rights as to the prescription of the fee, it being a glaring and self-
evident error to affirm the contrary, as does the appellant in his motion papers.
Possession is the fundamental basis of the prescription. Without it no kind of prescription
is possible, not even the extraordinary. Consequently, if acts of mere tolerance produce no
effect with respect to possession, as that article provides, in conformity with article 444 of
the same Code, it is evident that they can produce no effect with respect to prescription,
whether ordinary or extraordinary. This is true whether the prescriptive acquisition be of
a fee or of real rights, for the same reason holds in one and the other case; that is, that
there has been no true possession in the legal sense of the word. Hence, it is because the
use of windows in one's own wall is the result of a mere tolerance that the supreme court
of Spain, in its judgment of June 13, 1877, has held that such user lacks the creative force
of a true easement, although continued from time immemorial. The citation of article 1959
of the Civil Code and of law 21, title 29, partida 3, made by the petitioner, is therefore not
in point, because both of these provisions of law, which refer to the extraordinary period
of prescription presuppose possession as a necessary requisite, even if without either just
title or good faith.

The second error assigned is that in the decision the court holds that
the gravamina constituted by the window and the projection are negative easements,
against the provisions of article 533, which define them as positive, which definition, he
adds, is supported by the judgments of the supreme court of Spain of February 7 and May
5, 1896, cited in paragraph 12 of the said decision, which judgments declare that the
easement resulting from a window is positive.

It is not true that article 533 of the Civil Code says that the easement of light is positive,
because it does nothing more than give in general terms the definition of positive
easements and negative easements, without attempting to specify whether the easement
of lights pertains to the first or to the second class. We have declared that the easement is
negative, having in mind this very definition of the Code and the doctrine established by
the judgments of the supreme court of Spain which have been cited in our opinion. The
interpretation which the appellant attempts to give the article of the Civil Code cited is
evidently erroneous and, consequently, the citation made by him in support of his
contention is not in point.
Our opinion of the true extent and meaning of the judgments of the supreme court of
Spain of February 7 and May 5, 1896, has been already sufficiently explained, and it is
therefore unnecessary to go into the subject again here. We refer to our decision with
respect to what was said therein upon this subject.

The decision of the court does not contain the declaration, as gratuitously assumed by the
appellant, that the easement resulting from a projection is of a negative character; nor, in
fact, had we any occasion to make such a declaration, in view of the nature of the issues
raised and discussed during the trial. What we did, indeed, hold was that
the watershed mentioned in the complaint, the purpose of which was simply to protect the
window in question from sun and rain, was a mere accessory to that window, and that in
no case could it be considered as a projection within the provisions of article 582 of the
Civil Code, as so erroneously contended by the appellant at the trial. We find nothing in his
motion papers which can in any way weaken this holding.

The third error is assigned is that the court holds that the easement of light, as negative,
can not be acquired by prescription except by counting the period of possession from the
time at which the owner of the servient tenement has been prohibited from making
improvements which might interfere with said easement, contrary to the provisions of law
14, title 31, partida 3, and articles 538 and 585 of the Civil Code, which establish the
contrary.

This assertion is entirely destitute of foundation, inasmuch as neither in the law of

the partidas nor in the articles of the Civil Code mentioned is to be found the doctrine
which the appellant arbitrarily seeks to deduce from them. It is sufficient to read the text
to reach the conclusion that the assertion is wholly gratuitous.

The fourth error assigned is that the court holds that the watershed, as being an accessory
of the window, can not in itself constitute an easement, this being contrary to the
provisions of articles 582 and 585 of the Civil Code, and law 2, title 31, partida 3, which do
not make any such distinction.

Neither of the law cited speaks expressly of watersheds. We have held that article 582
refers solely to windows, balconies, and other similar projections, and that the watershed
in question does not pertain to this class of projections, our holding being based upon the
reasons given in our decision. The appellant advances no argument worthy of serious
consideration, and therefore we continue to believe that our opinion in this matter is
strictly in accordance with the law.

The appellant has attached to his motion for a rehearing two judgments, one rendered by
the Royal Audiencia of Manila September 6, 1877, and the other by the supreme court of
Spain on the 22d of February, 1892, and we think it well to say a few words concerning
them.
In the opinion of the appellant these judgments support the theory contended for by him
at the trial, that the easement of lights is positive and not negative. His error in so
believing is evident, inasmuch as neither of the judgments referred to establishes any such
doctrine. On the contrary, it appears clear, from the first of these judgments, that the
easement referred to is negative in the opinion of the court which rendered it. This
appears from the eight conclusion of law therein, which is literally as follows: "From the
evidence introduced by the defendant, and even from the testimony of witnesses of the
plaintiff, it has been proven that since 1828 the house in question has suffered no change
or alteration in its roof, which projects over Cosio's lot, which constitutes the active
opposition necessary in order to acquire by prescription the right to the light." It will be
seen, then, that the latter part of the preceding transcript of the conclusion of law days
down precisely the same doctrine as that expressed in our decision -- that active
opposition is a necessary condition for prescriptive acquisition of an easement of light.
And this also demonstrates conclusively that the court which rendered the judgment
referred to considered the easement to be negative, inasmuch as positive easements do
not require any active opposition as a basis for their prescriptive acquisition, such an act
being solely necessary to the prescription of negative easements.

It would appear, judging from his allegations as a whole, that the appellant confuses
positive easements with continuous easements, and the judgments referred to, in fact,
declares in its fourth conclusion of law that the easement of light is continuous. If these
were really so the error of the appellant would be manifest, because continuity is not a
quality exclusively peculiar to positive easements; there are negative easements which are
also continuous. Hence if is that the Civil Code, after classifying easements, in article 532,
as continuous and discontinuous, classifies them also as positive and negative (art. 533),
thus giving to understand that this latter classification depends upon other characteristics
entirely distinct from the continuity or discontinuity of easements. If all continuous
easements were positive and all discontinuous easements were negative, then the express
division of easements into positive and negative made by the Code, after establishing the
division of the same as continuous or discontinuous, would be entirely unnecessary, as
they would be entirely merged or included in the latter classification. It is sufficient to
read the text of the Code to understand beyond the possibility of a doubt that a negative
easement may be continuous, and that a positive easement may be discontinuous,
according to the special nature of each one.

With respect to the second judgment -- the judgment of the supreme court of Spain of
February 22, 1892 -- it is certainly difficult to understand how the appellant could have
imagined that he had found therein the slightest ground for his contention, inasmuch as it
lays down no doctrine which relates even inference to the subject of easements, and
simply holds, in the first of only two paragraphs in which its conclusions are contained,
that "judgments should be clear, precise, and responsive to the complaint and the issues
properly raised at the trial;" and in the second, that "the judgment appealed was
contradictory as to the questions it decides, because it makes certain declarations
favorable to some of the contentions in the plaintiff's complaint and then gives judgment
for the defendant, without making any distinction." It was for this reason alone, and for no
other, that the judgment appealed was reversed and annulled. In the judgment rendered
by the same supreme court upon the merits of the case, as a result of this decision in
cassation, no other doctrine is laid down than that "the judgment must be that the
defendant comply with those claims advanced by the complaint to which he was
consented, and that he must be discharged as to those allegations which have been denied
by him and which have not been proved by the plaintiff."

There is not one word on these judgments which says that the easement of lights is
positive, nor that a watershed constitutes a true projection within the meaning attached to
this word in article 582 of the Civil Code, as has been vainly contended by the appellant in
the trial.

Therefore the appellant's motion for a rehearing of the decision of March 12, 1903, is
denied.

Arellano, C.J., Cooper, Willard and Ladd, JJ., concur.

Torres and McDonough, JJ., did not sit in this case.

ON MOTION FOR WRIT OF ERROR TO REMOVE THE CASE TO THE SUPREME COURT
OF THE UNITED STATES.

WILLARD, J.:

The application to this court for the allowance of a writ of error or appeal for the purpose
of removing this case to the Supreme Court of the United States is denied.

Section 10 of the act of Congress of July 1, 1902, is as follows:

SEC. 10. That the Supreme Court of the United States shall have jurisdiction to
review, revise, reverse, modify, or affirm the final judgments and decrees of the
Supreme Court of the Philippine Islands in all actions, cases, causes, and proceedings
now pending therein or hereafter determined thereby in which the Constitution or
any statute, treaty, title, right, or privilege of the United States is involved, or in
causes in which the value in controversy exceeds twenty-five thousand dollars, or in
which the title or possession of real estate exceeding in value the sum of twenty-five
thousand dollars, to be ascertained by the oath of either party or of other competent
witnesses, is involved or brought in question; and such final judgments or decrees
may and can be reviewed, revised, reversed, modified, or affirmed by said Supreme
Court of the United States on appeal or writ of error by the party aggrieved, in the
same manner, under the same regulations, and by the same procedure, as far as
 applicable, as the final judgments and decrees of the circuit courts of the United
States.

There is no question in the case relating to the Constitution or any statute of the United
States. The evidence submitted by the applicant shows that the value of his property over
which the litigation turns is $11,867.70, money of the United States.

The fact that the plaintiff owns other houses in different parts of the city as to which he
claims an easement of light similar to the one claimed in this case, that the decision in this
case destroys all of these claimed easements, and that the value of those other houses
exceeds $25,000, gold, is not important. The test is the value of the matter in controversy.
The matter in controversy here was the easement of light and air over the property No. 63
Calle del Rosario and in favor of house No. 65. That easement could not be worth more
than the house itself.

The easements in favor of other houses of the plaintiff over other lots than No. 63 were
not in controversy in this suit. (Town of Elgin vs. Marshall, 106 U. S., 578.) So ordered.

Arellano, C.J., Torres, Cooper, Mapa and Ladd, JJ., concur.

McDonough, J., did not sit in this case.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-14652 June 30, 1960

JUAN GARGANTOS, petitioner,

vs.
TAN YANON and THE COURT OF APPEALS, respondents.

Jose T. Nery for petitioner.

Constantino P. Tadena for respondents.

GUTIERREZ DAVID, J.:

Juan Gargantos appeals by certiorari from the decision of the Court of Appeals reversing
the judgment of the Court of First Instance of Romblon.

The record discloses that the late Francisco Sanz was the former owner of a parcel of land
containing 888 square meters, with the buildings and improvements thereon, situated in
the poblacion of Romblon. He subdivided the lot into three and then sold each portion to
different persons. One portion was purchased by Guillermo Tengtio who subsequently
sold it to Vicente Uy Veza. Another portion, with the house of strong materials thereon,
was sold in 1927 to Tan Yanon, respondent herein. This house has on its northeastern
side, doors and windows over-looking the third portion, which, together with
the camarin and small building thereon, after passing through several hands, was finally
acquired by Juan Gargantos, petitioner herein.

On April 23, 1955, Gargantos applied to the Municipal Mayor for a permit to demolish the
roofing of the old camarin. The permit having been granted, Gargantos tore down the roof
of the camarin. On May 11, 1955, Gargantos asked the Municipal Council of Romblon for
another permit, this time in order to construct a combined residential house and
warehouse on his lot. Tan Yanon opposed approval of this application.

Because both the provincial fiscal and district engineer of Romblon recommended
granting of the building permit to Gargantos, Tan Yanon filed against Gargantos an action
to restrain him from constructing a building that would prevent plaintiff from receiving
light and enjoying the view trough the window of his house, unless such building is
erected at a distance of not less than three meters from the boundary line between the lots
of plaintiff and defendant, and to enjoin the members of Municipal Council of Romblon
from issuing the corresponding building permit to defendant. The case as against the
members of the Municipal Council was subsequently dismissed with concurrence of
plaintiff's council. After trial, the Court of First Instance of Romblon rendered judgment
dismissing the complaint and ordering plaintiff to pay defendant the sum of P12,500.00 by
way of compensatory, exemplary, moral and moderate damages.

On appeal, the Court of Appeals set aside the decision of the Court of First Instance of
Romblon and enjoined defendant from constructing his building unless "he erects the
same at a distance of not less than three meters from the boundary line of his property, in
conformity with Article 673 of the New Civil Code."

So Juan Gargantos filed this petition for review of the appellate Court's decision. The focal
issue herein is whether the property of respondent Tan Yanon has an easement of light
and view against the property of petitioner Gargantos.

The kernel of petitioner's argument is that respondent never acquired any easement
either by title or by prescription. Assuredly, there is no deed establishing an easement.
Likewise, neither petitioner nor his predecessors-in-interest have ever executed any deed
whereby they recognized the existence of the easement, nor has there been final judgment
to that effect. Invoking our decision in Cortes vs. Yu-Tibo (2 Phil., 24), petitioner maintains
that respondent has not acquired an easement by prescription because he has never
formally forbidden petitioner from performing any act which would be lawful without the
easement, hence the prescriptive period never started.
It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and the doctrine in
the Yu-Tibo case are not applicable herein because the two estates, that now owned by
petitioner, and that owner by respondent, were formerly owned by just one person,
Francisco Sanz. It was Sanz who introduced improvements on both properties. On that
portion presently belonging to respondent, he constructed a house in such a way that the
northeastern side thereof extends to the wall of the camarin on the portion now belonging
to petitioner. On said northeastern side of the house, there are windows and doors which
serve as passages for light and view. These windows and doors were in existence when
respondent purchased the house and lot from Sanz. The deed sale did not provide that the
easement of light and view would not be established. This then is precisely the case
covered by Article 541, O.C.C (now Article 624, N.C.C) which provides that the existence of
an apparent sign of easement between two estates, established by the proprietor of both,
shall be considered, if one of them is alienated, as a title so that the easement will continue
actively and passively, unless at the time the ownership of the two estate is divided, the
contrary is stated in the deed of alienation of either of them, or the sign is made to
disappear before the instrument is executed. The existence of the doors and windows on
the northeastern side of the aforementioned house, is equivalent to a title, for the visible
and permanent sign of an easement is the title that characterizes its existence (Amor vs.
Florentino, 74 Phil., 403). It should be noted, however, that while the law declares that the
easement is to "continue" the easement actually arises for the first time only upon
alienation of either estate, inasmuch as before that time there is no easement to speak of,
there being but one owner of both estates (Articles 530, O.C.C., now Articles 613, N.C.C).

We find that respondent Tan Yanon's property has an easement of light and view against
petitioner's property. By reason of his easement petitioner cannot construct on his land
any building unless he erects it at a distance of not less than three meters from the
boundary line separating the two estates.

Wherefore, the appealed decision is hereby affirmed with costs against petitioner.

Paras, C.J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., and
Barrera, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION
G.R. No. 75450 November 8, 1990

OSMUNDO MEDINA, ROSARIO BANZUELA, NATIVIDAD GATCHALIAN, ANTONIO

REYES, DAMIAN MARABE, ANGELITO ADOLFO, VIRGILIO ABALARAO, ANTONIA
GONZALES, DANILO MARIANO, GAUDENCIO MARIANO, PABLO COROT, AVELINO
BORON, ANTONIO TORCUATO, JULIAN TORCUATO, JR., GRACIANO ILAGAN,
DEMOCRITO REAL, ADELAIDA ADOLFO, PEDRO MORTALLA, AND BANJAMIN DE
LARA, petitioners,
vs.
HON. MACARIO A. ASISTIO, JR., IN HIS CAPACITY AS MAYOR OF CALOOCAN CITY AND
JOSE E.R. USON IN HIS CAPACITY AS CITY ENGINEER OF CALOOCAN CITY,
respondents.

Free Legal Assistance Group for petitioners.

The City Legal Officer for respondents.

BIDIN, J.:

This is a petition to review the decision of the Court of Appeals dated June 26, 1986,
dismissing petitioners' petition for prohibition, the dispositive portion of which
reads:

IN VIEW OF THE FOREGOING CONSIDERATIONS, the petition is hereby

DISMISSED. The temporary restraining order previously issued is
hereby lifted, dissolved and set aside. No pronouncement as to costs.

SO ORDERED.

Briefly, the antecedent facts are as follows:

Petitioners are residents of Marulas-A, a parcel of land situated in Caloocan City,

which is owned by the Philippine National Railways (PNR). They claim to be long-
time legitimate tenants and sub-tenants of the PNR.

In August of 1980, fire hit Marulas which rendered a number of families homeless,
petitioners included. Subsequently, petitioners started reconstructing their
dwellings. The constructions were allegedly authorized by respondent Asistio, in
his capacity as Mayor of Caloocan City.

In February 1982, PNR sold the lot in question to the City Government of Caloocan.
The latter bought the lot in coordination with the then Ministry of Education,
Culture and Sports preparatory to the construction of a new school building
thereon.

Having learned of the sale of the lots which they have been occupying to the City
Government of Caloocan, petitioners, in April 1982, sent a letter-petition to
respondent Asistio anent their impending eviction from the premises and asked
that they be allowed to continue to occupy the same (Rollo, p. 106).

In January 1984, petitioners again sent another letter addressed to respondent

Asistio this time expressing their willingness to purchase the property sold by the
PNR at a reasonable price pursuant to Presidential Decree No. 1517 (proclaiming
urban land reform in the Philippines and providing for the implementing
machinery thereof).

Subsequently, petitioners received a "Paunawa sa Paglilipat" sent by respondent

Asistio through the City Architect, Edmundo Sadie. Thereupon, petitioners
requested assistance from the Human Settlements Regulatory Commission and a
dialogue was held between petitioners and respondent to work out a possible
compromise.

The parties failed to reach a compromise so that on February 1, 1985, respondent

City Engineer Uson delivered a final notice to petitioners requiring them to remove
and demolish their respective houses, which reads as follows:

Pursuant to the provisions of the Letter of Instruction No. 19 and its

amendment, and the Memorandum of the Office of the President dated
November 13, 1972, you are hereby directed to remove/demolish your
house at above address which has illegally occupied, encroached,
obstructed and/or usurped the road right-of-way, waterways, open
space, other government lot or other private lot in violation of laws,
decrees, instructions, order and/or ordinances within ten (10) days
from notice thereof.

You are further advised that in the event of your failure to

remove/demolish said structure within the stated period, the city
government will undertake the same at your expense or will undertake
other measures necessary or required under the circumstances. (Rollo,
p. 120)

On February 8, 1985, petitioners filed a petition for prohibition before this Court,
docketed as G.R. No. 69790, which was then referred to the Court of Appeals (then
Intermediate Appellate Court) for reception of evidence.
On June 26, 1986, the Court of Appeals issued the assailed decision dismissing the
petition. Petitioner's motion for reconsideration was denied. Hence, this instant
petition.

Petitioners assign the following errors:

THE IAC ERRED IN FINDING THAT THE PETITION IS BEREFT OF SUBSTANCE

AND DEVOID OF MERIT BECAUSE IT ALLEGES THAT EXCEPT FOR PETITIONER
MEDINA, ALL THE PETITIONERS ARE NOT LEGITIMATE TENANTS BUT
SQUATTERS WHO BUILT THEIR HOUSES NEAR AND ALONG THE RAILROAD
TRACKS.

II

THE IAC ERRED IN FINDING THAT THE HOUSES OF THE PETITIONERS WERE
ILLEGALLY CONSTRUCTED AS THEY WERE BUILT ON PUBLIC PROPERTY AND
WITHOUT ANY BUILDING PERMITS.

It is at once apparent that petitioners' assignment of errors takes issue with the
findings of facts and appreciation of the evidence passed upon by the Court of
Appeals which is now brought before this Court for review.

In support of their petition, petitioners seek reliance in the case of Cunanan v.

Lazatin (74 Phil. 719 [1944]) contending that a question as to whether or not the
conclusion drawn by the Court of Appeals from proven facts is correct, involves a
question of law.

We find petitioners' argument devoid of merit. The Cunanan case (supra) relied
upon by petitioners speaks of (proven facts). In the case at bar, the facts are yet to
be proven. As held in Cunanan:

There is no question of facts here because the facts are admittedly

proven. Whether or not the conclusion drawn by the Court of Appeals
from those facts is correct, is a question of law which this Court is
authorized to pass upon (Emphasis supplied)

The ruling in Cunanan cannot apply to the case at bar in the absence of proven facts.
Moreover, for a question to be one of law, the same must not involve an examination
of the probative value of the evidence presented by the litigants or any of them. And
the distinction is well-known: There is a question of law in a given case when the
doubt or difference arises as to what the law is on a certain state of facts; there is a
question of fact when the doubt or difference arises as to the truth or the falsehood
of alleged facts ( II Moran, Comments on the Rules of Court, 1979 Ed., 473; citing
Ramos, et al., v. Pepsi-Cola Bottling Co. of the P.I., et al., 19 SCRA 289 [1967]).

Petitioners' allegation that the Court of Appeals "grossly disregarded" their Exhibits
"A", "4B", "4C", "D", and "E", in effect, asks us to re-examine all the evidences already
presented and evaluated — as well as the findings of fact made — by the Court of
Appeals. Thus, in Sotto v. Teves (86 SCRA 154 [1978]), We held that the appreciation
of evidence is within the domain of the Court of Appeals because its findings of fact
are not reviewable by this Court (Manlapaz v. CA, 147 SCRA 236 [1987]; Knecht v.
CA, 158 SCRA 80 [1988] and a long line of cases).

It is not the function of this Court to analyze or weigh such evidence all over again.
Our jurisdiction is limited to reviewing errors of law that may have been committed
by the lower court. (Nicolas et al., v. CA, 154 SCRA 635 [1987]; Tiongco v. de la
Merced, 58 SCRA 89 [1974]).

It is a well-settled rule in this jurisdiction that only questions of law may be raised
in a petition for certiorariunder Rule 45 of the Rules of Court, this Court being
bound by the findings of fact made by the Court of Appeals. The rule, however, is not
without exception. Thus, findings of fact by the Court of Appeals may be passed
upon and reviewed by this Court in the following instances, none of which obtain in
the instant petition:

(1) When the conclusion is a finding grounded entirely on speculation, surmises or

conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made
is manifestly mistaken, absurd or impossible (Luna v. Linatok, 74 Phil. 15 [1942]);
(3) Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453
[1955]); (4) When the judgment is based on a misapprehension of facts (Cruz v.
Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica
v. Villaseca, L-9590 Ap. 30, 1957; unrep.);** (6) When the Court of Appeals, in
making its findings, went beyond the issues of the case and the same is contrary to
the admissions of both appellant and appellee (Evangelista v. Alto Surety and
Insurance Co., 103 Phil. 401 [1958]); (7) The findings of the Court of Appeals are
contrary to those of the trial court (Garcia v. Court of Appeals, 33 SCRA 622 [1970];
Sacay v. Sandiganbayan, 142 SCRA 593 [1986]); (8) When the findings of fact are
conclusions without citation of specific evidence on which they are based (Ibid.,);
(9) When the facts set forth in the petition as well as in the petitioner's main and
reply briefs are not disputed by the respondents (Ibid.,); and (10) The finding of fact
of the Court of Appeals is premised on the supposed absence of evidence and is
contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).

Essential to the resolution of petitioner's assignment of errors is the issue of

whether or not they are legitimate tenants of PNR entitled to the benefits provided
under Sec. 6, PD 1517, which reads;
 Section 6. Land Tenancy in Urban Areas. Within the Urban Zones
legitimate tenants who have resided on the land for ten years or more
who have built their homes on the land and residents who have already
occupied the lands by contract, continuously for the last ten years shall
not be dispossessed of the land and shall be allowed the right of that
refusal to purchase the same within a reasonable time and at reasonable
prices, under terms and conditions to be determined by the Urban Zone
Expropriation and Land Management Committee created by Section 8 of
this Decree.

Invoking Presidential Decree No. 1517, petitioners claim to be legitimate tenants

and sub-tenants of PNR for more than ten (10) years. As such, they contend that
under said decree, they cannot be evicted from the premises they are currently
occupying and have the right of first refusal to purchase the same within a
reasonable time and at a reasonable price.

The Court of Appeals found otherwise. It said:

The records, however, disclose that only petitioners Osmundo Medina,

Natividad Gatchalian, Rosario Ban(z)uela, Antonia de los Reyes and
Antonia Gonzales appear to be lessees of the PNR while the rest appear
to be squatters. Of the five lessees, only petitioner Osmundo Medina,
however, was able to renew his contract of lease with the PNR under
Contract No. 8603 which will expire on December 31, 1985. It also
appears that the houses of Medina, Gatchalian and Banzuela are situated
within the territorial jurisdiction of Manila while that of Antonia de los
Reyes and Antonia Gonzales are within the jurisdiction of Caloocan City.
(Rollo, p. 18).

While it is true that Marulas-A is a priority development area under Proclamation

1967 (1980), petitioners' alleged right of first refusal and the consequent
prerogative to stay thereon never existed in the absence of contract over the
disputed land. In Bermudez v. Intermediate Appellate Court (143 SCRA 351 [1986]),
we held:

It is a proved fact that the disputed land is in an area already proclaimed

for priority development, and that the petitioners have occupied the
premises for more than ten (10) years. Nonetheless, We hold that they
cannot take advantage of the beneficient provisions (e.g. right of first
refusal) granted by Presidential Decree No. 1517, because among other
things they are not bona fide tenants of the property.

Sections 3 (f) and 6 of PD 1517 provides:

 (f) Tenant refers to the rightful occupant of land and its structure but does
not include those whose presence on the land is merely tolerated and
without the benefit of contract, those who enter the land by force or
deceit, or those whose possession is under litigation.

xxx xxx xxx

Section 6. Land Tenancy in Urban Areas. Within the Urban

Zones legitimate tenants who have resided on the land for ten years or
more who have built their homes on the land and residents who have
already occupied the lands by contract, continuously for the last ten years
shall not be dispossessed of the land and shall be allowed the right of
first refusal to purchase the same within a reasonable time and at
reasonable prices, under terms and conclusions to be determined by the
Urban Zone Expropriation and Land Management Committee created by
Section 8 of this Decree. (Emphasis supplied)

Based on the afore-quoted provision, only legitimate tenants may be extended the
protective mantle of the decree cited to the exclusion of all others. Since the
petitioners do not have contracts with the PNR to qualify them as legitimate
tenants, the protection afforded therein cannot be rightfully invoked (Zansibarian
Residents Ass'n. v. Municipality of Makati, 135 SCRA 239 [1985]; cf Aquino v.
Intermediate Appellate Court, 132 SCRA 377 [1984]). Consequently, petitioners
cannot also be granted the right of first refusal to purchase the property involved.

It appears, however, that petitioners Osmundo Medina, Natividad Gatchalian,

Rosario Banzuela, whose houses are within the limits of the City of Manila, and
Antonio de los Reyes and Antonia Gonzales are registered lessees of PNR (Rollo, p.
97). Since the houses of the above-named three (3) petitioners fall outside the
jurisdiction of Caloocan City, respondents are without authority to order the
demolition of their dwellings. Consequently, the appealed decision must be
modified in this respect. On the other hand, petitioners de los Reyes and Gonzales
failed to adduce any evidence showing legitimate occupancy of the disputed
property for the last ten (10) years by virtue of a contract. Their bare assertions
sans substantive proof militate against their cause.

Petitioners claim that they have been religiously paying the rentals, only that the
receipts issued therefor by PNR were either lost or burned by the August fire.
Records of the PNR submitted by petitioners indicate, however, that latest
payments made by petitioners date back as far as 1971 and 1962 (Rollo, p. 100-
102). Contrary to what they claim, petitioners have been remiss in the payment of
rentals. The fact that PNR instituted no ejectment proceedings against petitioners
only amounted to tolerance and cannot legitimize their occupancy.
Petitioners likewise deny that their houses are built near or along railroad tracks
because a memorandum issued by the Gen. Manager of PNR (Annex "Q") allowed
them to build their houses within five (5) meters from the outer rail tracks (Rollo, p.
11). We note an overt mischief in their denial. Indeed, a perusal of the
memorandum (Exh. "Y" Rollo, p. 133) adverted to reveal no such authorization.
Instead, it makes demands that the PNR right-of-way "be cleared immediately of all
houses and other structures built and existing within 5 meters from the outer rail
tracks."

It may be gleaned from the foregoing that petitioners have indeed been occupying
restricted areas. As such, illegal constructions thereon may be demolished by
respondents pursuant to Letter of Instruction No. 19, as amended and the
Memorandum of the Office of the President dated November 13, 1972.

It is further contended that petitioners were issued building permits by respondent

Asistio as proven by the fact that they were able to secure water and electrical
connection since the agencies concerned, MWSS and MERALCO, respectively,
require prior representation of said permits (Rollo, p. 5).

The contention is without merit. If building permits were actually issued as claimed
by petitioners, We see no reason why not even a single permit was presented in
evidence. Granting that the alleged permits were either lost or burned a duplicate
copy thereof could have been secured from either MWSS or MERALCO, or from the
city government of Caloocan itself which issued the same. There being none, it
cannot be presumed that petitioners were possessed of the requisite building
permits.

In Zanzibarian Residents Ass'n. v. Municipality of Makati (supra), we upheld the

authority of municipal mayors to remove illegal constructions along railroad tracks,
thus:

On the other hand, the authority of respondent to demolish the houses

or shanties of the petitioners is mandated by P.D. 772 and LOI No. 19.
Section 1 of LOI No. 19 orders certain public officials, one of whom is the
municipal mayor to remove all illegal construction, including buildings,
on and along esteros and river banks; those along railroad tracks and
those built without permits on public or private property.

Finally, reliance is placed on Presidential Decree No. 2016 (1986) which prohibits
the eviction of occupant families from lands identified and proclaimed as Areas for
Priority Development or Urban Land Reform Zone, the General Moratorium on
Eviction and Demolition (Rollo, p. 121-122) and Resolution No. 2-87 of the
Presidential Commission for the Urban Poor (PCUP) providing policies and
sidelines on squatting, otherwise known as "Tigil Tayuan, Tigil Gibaan" (Rollo, pp.
123-127).

Section 4 of PCUP Resolution No. 2-87 states that "subject to existing laws", all urban
poor occupants of dwelling structures built on or before February 25, 1986 shall be
extended the necessary assistance and protection on their dwelling; whereas, par.
(f) of the same section provides, among others, that "Court orders to evict squatters
shall be respected" (Rollo, pp. 124-125). In the General Moratorium, there is again a
reference to Court orders in B.2 viz., "(r)elocation and resettlement will be
undertaken only as a last recourse except in danger areas and those covered by
Court orders " (Rollo, p. 122).

Read in harmony with the phrase "subject to existing laws", Section 4 of Resolution
No. 2-87 is deemed subject to Section 3 (f) of PD 1517 (supra) as regards those
occupants "whose possession is under litigation", as in the case at bar, the
resolution of which calls for a Court order. Since the property subject of the
controversy has been under litigation prior to the issuance of PD 2016 and PCUP
Resolution No. 2-87, petitioners cannot be considered as included thereunder.

WHEREFORE, the appealed decision dismissing the petition is hereby AFFIRMED

with the modification that respondents are without authority to demolish the
houses of petitioners Medina, Gatchalian and Banzuela, being outside of
respondents' territorial jurisdiction. As thus modified the petition for certiorari is
hereby DENIED with respect to all other petitioners. No costs.

SO ORDERED.

Fernan, C.J., and Gutierrez, Jr., J., concur.

Feliciano, J., is on leave.

Footnotes

* Actually the same as exception No. 5.