G.R. No.

L-33507 July 20, 1981

FE P. VELASCO, represented by ALFREDO GONZALES, petitioner,
vs.
HON. VICENTE N. CUSI, JR. and THE CITY OF DAVAO, respondents.

DE CASTRO, J.:
Petitioner filed in the Court of First Instance of Davao an action against Davao City to quiet title to her lot known as Lot 77-
B-2, a portion of which she claims to having been occupied illegally as part of Bolton Street, Davao City. On a motion to
dismiss filed by the defendant, on the ground that the complaint states no cause of action, the Court, presided over by
respondent Judge Hon. Vicente Cusi Jr., dismissed the case. Hence, this petition for certiorari seeking a review of the
Order of dismissal dated July 11, 1970 (Annex D to tile Petition). 1
The dismissal being on the ground that the complaint does not state a cause of action, the allegations of the complaint
have to be closely examined, as the court a quo did in its Order afore cited which quoted the material allegations of the
complaint as follows:
The action is to quiet title and damages. But the complaint does not allege any cloud or doubt on the title, 'Transfer
Certificate of Title No. T-7000 of the Register of Deeds of the City of Davao, of the plaintiff to Lot No. 77-B-2, subdivision
plan Psd-22295. According to the complaint, ' . . . when plaintiff bought the said lot 77-B-2 from the original owner in 1956,
the Bolton Street was already existing; that without ascertaining the monuments along Bolton Street, she had her house
constructed on her said lot and built fence along said Bolton Street which she believed to be the boundary between her lot
and said street and in line with other offences already existing when she bought said lot; 6. That plaintiff has just
discovered, after a relocation of the monuments of her lot, Lot No. 77-B-2, that the Bolton Street of the defendant has
encroached at least TWENTY-FIVE (25) SQUARE METERS with dimension of 2.5 meters by 10 meters, making her
actual occupation of her lot 10 meters by 47.5 meters, as indicated in the plan Annex "A" hereon enclosed thereon by red
pencil lines; 7. That plaintiff has just discovered also that the width of the Bolton Street is only NINE (9) METERS and
since the defendant is now asphalting the said Bolton Street, plaintiff has filed this complaint in order to quiet her title to
the said portion of 2.5 meters by 10 meters as shown in the plan enclosed in red pencil oil Annex "A" hereon because the
continued occupation of said portion by the defendant has cast a cloud of doubt on the title of the plaintiff over the portion
of plaintiff's Lot No. 77-B-2 now being occupied by Bolton Street, valued at four hundred pesos per square meters.
After quoting the material allegations of the complaint as above set forth, the court a quo analyzed them carefully and
scrutinizingly, and came up with the conclusion that the allegations of the complaint state no cause of action. Thus —
The allegations in the complaint that the Bolton Street encroached on the lot of the plaintiff and that the defendant had
continuously occupied the portion so encroached upon do not, contrary to the conclusion of the plaintiff found in the
complaint, cast ' . . a cloud of doubt on the title of the plaintiff over said portion which would justify this action.
In her present petition, petitioner assigned as error of the court a quo the following:
1. THE LOWER COURT ERRED IN DECLARING THAT THE BOLTON STREET AS AN EASEMENT MUST REMAIN A
BURDEN ON LOT 77-B-2 (LOT IN QUESTION) PURSUANT TO SECTION 39 OF ACT 496 ON THE GROUND THAT IT
IS SUBJECT TO EASEMENT OF PUBLIC HIGHWAY.
2. THE LOWER COURT ERRED IN DECLARING THAT THE PORTION OF THE LAND OF PETITIONER
ENCROACHED UPON BY THE RESPONDENT CITY OF DAVAO'S BOLTON STREET DOES NOT CAST A CLOUD OF
DOUBT IN THE TITLE OF PETITIONER.
3. THE LOWER COURT ERRED IN DECLARING THAT ASSUMING THE FACTS ALLEGED IN THE COMPLAINT TO
BE TRUE, A JUDGMENT UPON THE SAME IN ACCORDANCE WITH THE PRAYER COULD NOT BE RENDERED.
4. THE LOWER COURT ERRED IN DISMISSING THE COMPLAINT FOR LACK OF CAUSE OF ACTION.
As alleged by petitioner, the lot in question, Lot No. 77-B-2, which she bought in 1956, was part of Lot No. 77-B, which
was in turn originally a portion of Lot No. 77, covered by O.C.T. No. 683, issued on July 21, 1911. For the lot she bought,
she received Transfer Certificate of Title No. T-7000.
In 1970, petitioner discovered that the Bolton Street of the City of Davao had encroached upon her a lot of portion of 2.5
meters wide and 10 meters long, along said Street, or an area of 25 Square meters. She also discovered that Bolton
Street was delimited to nine (9) meters wide, but the proposed width was 15 meters, and in that same year 1970, the
Bolton Street had already encroached on her lot, on the northwestern part thereof, to the extent as above stated (par. 7,
Complaint, Annex A. to Petition).
From The allegations of the complaint as set forth above, as well as in the questioned Order quoted earlier, We agree with
respondent judge that the complaint states no cause of action upon which to render judgment in favor of petitioner, even
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assuming S the said allegations to be true, indeed, in a motion to dismiss for lack of cause of action, the allegations of the
complaint must be hypothetically admitted. 2
It appears on the face of the complaint that Bolton Street has been where it is from time immemorial. When the mother
title of petitioner's Transfer Certificate of Title No. T- 7000, which is O.C.T. No. 638, was issued in 1911, it was issued
subject to the provisions of Section 39 of Act 496 which reads:
Section 39. Every person receiving a certificate of title in pursuance of a decree or registration, and every subsequent
purchasers of registered land who takes a certificate of title for value in good faith shall hold the same free of all
encumbrances, except those noted on said certificate, and any of the following encumbrances which may be subsisting
namely:
xxx xxx xxx
Third. Any public highway, way, private way, ... or any government irrigation, canal, or lateral thereof ...
From the foregoing provision, Bolton Street which is a public highway, already subsisting when O.C.T. No. 638 was
issued, as this fact is apparent too from the face of the complaint itself, is deemed to have attached as a legal
encumbrance to the lot originally registered lot No. 77, notwithstanding the lack of an annotation thereof on O.C.T. No.
638. petitioner, therefore, cannot rely, as she almost entirely does for the relief she seeks, on the aforequoted provision,
which she had repeatedly cited but without making mention, perhaps conveniently, of the exception as expressly provided
in the later part of the legal provision invoked (Sec. 39, Act 496).
If from the undisputed fact Chat when Lot -77 was registered, Bolton Street had already been a legal encumbrance on
said lot, pursuant to Section 39 of Act 496, contrary to petitioner's theory based on the same legal provision but o
committing the portion pertinent to the instant case, there can be no gainsaying the fact that petitioner's lot, Lot No. 77-B-
2, which admittedly was originally a part of Lot No. 77, must have to remain subject to the same legal encumbrance of a
public highway.
From her own allegations in her complaint, Bolton Street cannot be a discontinuous easement as she claims it to be,
which may not be acquired by prescription. Nonetheless, whether the mode of acquisition of the easement that Bolton
Street is, would be only by virtue of title, as petitioner contends, this is not material or of any consequence, in the present
proceedings, once it indubitably appears as it does, from the allegations of the complaint itself, that Bolton Street
constituted an easement of public highway on Lot No. 77, from which petitioner's lot was taken, when the said bigger lot
was original registered. It remained as such legal encumbrance, as effectively as if it had been duly noted on the
certificate of title, by virtue of the clear and express provision of Section 39 of Act 496, it being admitted that at the time of
the registration of Lot 77, the public highway was already in existence or subsisting. This fact erases whatever cause of
action petitioner may have to bring the complaint she filed in the court a quo for quieting of title on a portion of the street
which she claims to be part of her lot, free from encumbrance of any kind. The Order complained of has only this legal
postulate as its basis. Nothing has been mentioned therein on the acquisition by the City of Davao of the lot in question by
prescription, and a discussion of this matter as is found in petitioner's brief 3 would be entirely irrelevant.
WHEREFORE, no reversible error having been found in the Order complained of, the same is hereby affirmed, and the
instant petition, dismissed. Costs against petitioner.
SO ORDERED.
Barredo (Chairman), Aquino and Concepcion, Jr., JJ., concur.

G.R. No. L-37409 May 23, 1988

NICOLAS VALISNO, plaintiff-appellant,
vs.
FELIPE ADRIANO, defendant-appellee.
GRIÑO-AQUINO, J.:
This case was certified to this Court by the Court of Appeals in a resolution dated August 10, 1973, the sole issue being a
question of law and beyond its jurisdiction. to decide.
Admitted by the parties in their pleading and established during the trial on the merits are the following material facts:
On June 20, 1960, 'the plaintiff-appellant file against the defendant-appellee an action for damages docketed as Civil
Case No. 3472 in the Court of First Instance of Nueva Ecija. The complaint alleged that the plaintiff is the absolute owner
and actual possessor of a 557,949-square-meter parcel of land in La Fuente, Santa Rosa, Nueva Ecija, and more
particularly described in his Transfer Certificate of Title No. NT-16281. The plaintiff-appellant Valisno bought the land from
the defendant-appellees sister, Honorata Adriano Francisco, on June 6,1959. (Deed of Absolute Sale, Exh. "A".) The land
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which is planted with watermelon, peanuts, corn, tobacco, and other vegetables adjoins that of the appellee Felipe
Adriano on the bank of the Pampanga River. Both parcels of land had been inherited by Honorata Adriano Francisco and
her brother, Felipe Adriano, from their father, Eladio Adriano. At the time of the sale of the land to Valisno, the land was
irrigated by water from the Pampanga River through a canal about seventy (70) meters long, traversing the appellee's
land.
On December 16, 1959, the appellee levelled a portion of the irrigation canal so that the appellant was deprived of the
irrigation water and prevented from cultivating his 57-hectare land.
The appellant filed in the Bureau of Public Works and Communications a complaint for deprivation of water rights. A
decision was rendered on March 22, 1960 ordering Adriano to reconstruct the irrigation canal, "otherwise judicial action
shall be taken against him under the provisions of Section 47 of Act 2152 (the Irrigation Act), as amended." Instead of
restoring the irrigation canal, the appellee asked for a reinvestigation of the case by the Bureau of Public Works and
Communications. A reinvestigation was granted.
In the meantime, plaintiff Valisno rebuilt the irrigation canal at his own expense because his need for water to irrigate his
watermelon fields was urgent.
On June 20, 1960, he filed a complaint for damages in the Court of First Instance (now Regional Trial Court) of Nueva
Ecija (Civil Case No. 3472) claiming that he suffered damages amounting to P8,000 when he failed to plant his fields that
year (1960) for lack of irrigation water, P800 to reconstruct the canal on defendant Adriano's land, and P1,500 for
attorney's fees and the costs of suit.
On October 25, 1961, the Secretary of Public Works and Communications reversed the Bureau's decision by issuing a
final resolution dismissing Valisno's complaint. The Secretary held that Eladio Adriano's water rights which had been
granted in 1923 ceased to be enjoyed by him in 1936 or 1937, when his irrigation canal collapsed. His non-use of the
water right since then for a period of more than five years extinguished the grant by operation of law, hence the water
rights did not form part of his hereditary estate which his heirs partitioned among themselves. Valisno, as vendee of the
land which Honorata received from her father's estate did not acquire any water rights with the land purchased.
In his answer to the damage suit (Civil Case No. 3472), the defendant Felipe Adriano admitted that he levelled the
irrigation canal on his land, but he averred: that neither his late father nor his sister Honorata possessed water rights for
the land which she sold to the appellant; that he (the appellee) applied for water rights for his land in 1956 and obtained
the same in 1958; and that he had a perfect right to level his land for his own use because he merely allowed his sister to
use his water rights when she still owned the adjacent land. He set up a counterclaim for P3,000 as damages incurred by
him in levelling the land on which the appellant dug an irrigation canal, P2,000 as actual damages, P3,000 as attorney's
fees, and expenses of litigation.
In a decision dated April 21, 1966, the trial court held that the plaintiff had no right to pass through the defendant's land to
draw water from the Pampanga River. It pointed out that under Section 4 of the Irrigation Law, controversies between
persons claiming a right to water from a stream are within the jurisdiction of the Secretary of Public Works and his
decision on the matter is final, unless an appeal is taken to the proper court within thirty days. The court may not pass
upon the validity of the decision of the Public Works Secretary collaterally. Furthermore, there was nothing in the plaintiff
's evidence to show that the resolution was not valid. It dismissed the complaint and counterclaim.
The plaintiff's motion for reconsideration of the decision was denied by the trial court. The plaintiff appealed to the Court of
Appeals which certified the case to Us upon the legal question of whether the provisions of the Irrigation Act (Act No.
2152) or those of the Civil Code should apply to this case.
The plaintiff-appellant argues that while the trial court correctly held that the Secretary of Public Works may legally decide
who between the parties is entitled to apply for water rights under the Irrigation Act, it erred in ruling that the Secretary has
authority to hear and decide the plaintiff 's claim for damages for the defendant's violation of his (plaintiff's) right to
continue to enjoy the easement of aqueduct or water through the defendant's land under Articles 642, 643, and 646 of the
Civil Code, which provide:
Article 642. Any person who may wish to use upon his own estate any water of which he can dispose shall have the right
to make it flow through the intervening estates, with the obligation to indemnify their owners, as well as the owners of the
lower estates upon which the waters may filter or descend.
Article 643. One desiring to make use of the right granted inthe preceding article is obliged:
(1) To prove that he can dispose of the water and that it is sufficient for the use for which it is intended;
(2) To show that the proposed right of way is the most convenient and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner determined by the laws and regulations.

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Article 646. For legal purposes, the easement of aqueduct shall be considered as continuous and apparent, even though
the flow of the water may not be continuous, or its use depends upon the needs of the dominant estate, or upon a
schedule of alternate days or hours.
The existence of the irrigation canal on defendant's land for the passage of water from the Pampanga River to Honorata's
land prior to and at the time of the sale of Honorata's land to the plaintiff was equivalent to a title for the vendee of the land
to continue using it as provided in Article 624 of the Civil Code:
Article 624. The existence of an apparent sign of easement between two estates, established or maintained by the owner
of both shall be considered, should either of them be alienated, as a title in order that he easement may continue actively
and passively, unless at the time, theownership of the two estates is divided, the contrary should be provided in the title of
conveyance of either of them, or the sign aforesaid should be removed before the execution of the deed.
This provision shall also apply in case of the division of a thing owned in common on by two or more persons (Civil Code)
This provision was lifted from Article 122 of the Spanish Law of Waters which provided:
Article 122. Whenever a tract of irrigated land which previously received its waters from a single point is divided through
inheritance, sale or by virtue of some other title, between two or more owners, the owners of the higher estates are under
obligation to give free passage to the water as an easement of conduit for the irrigation of the lower estates, and without
right to any compensation therefore unless otherwise stipulated in the deed of conveyance. (Art. 122, Spanish Law of
Waters of August 3, 1866.)
No enlightened concept of ownership can shut out the Idea of restrictions thereon, such as easements. Absolute and
unlimited dominion is unthinkable, inasmuch as the proper enjoyment of property requires mutual service and forbearance
among adjoining estates (Amor vs. Florentino, 74 Phil. 403).
As indicated in the decision dated March 22, 1960 of the Bureau of Works "the principal issue involved in this case falls
under the subject of servitude of waters which are governed by Article 648 of the new Civil Code and the suppletory laws
mentioned in the cases of Lunod vs. Meneses 11 Phil. 128) and Osmena vs. Camara (C.A. 380 62773) which are the
irrigation law and the Spanish Law of Waters of August 3, 1866, specifically Article 122 thereof.
The deed of sale in favor of Valisno included the "conveyance and transfer of the water rights and improvements"
appurtenant to Honorata Adriano's property. By the terms of the Deed of Absolute Sale, the vendor Honorata Adriano
Francisco sold, ceded, conveyed and transferred to Dr. Nicolas Valisno all "rights, title, interest and participations over the
parcel of land above- described, together with one Berkely Model 6 YRF Centrifugal Pump G" suction, 6" discharge 500-
1500 GPM, with Serial No. 5415812 and one (1) set of suction pipe and discharge of pipe with elbow, nipples, flanges and
footvalves," and the water rights and such other improvements appertaining to the property subject of this sale. According
to the appellant, the water right was the primary consideration for his purchase of Honorata's property, for without it the
property would be unproductive.
Water rights, such as the right to use a drainage ditch for irrigation purposes, which are appurtenant to a parcel of land,
pass with the conveyance of the land, although not specifically mentioned in the conveyance. The purchaser's easement
of necessity in a water ditch running across the grantor's land cannot be defeated even if the water is supplied by a third
person (Watson vs. French, 112 Me 371 19 C.J. 868-897). The fact that an easement by grant may also have qualified as
an easement of necessity does detract from its permanency as property right, which survives the determination of the
necessity (Benedicto vs. CA, 25 SCRA 145)
As an easement of waters in favor of the appellant has been established, he is entitled to enjoy it free from obstruction,
disturbance or wrongful interference (19 CJ 984), such as the appellee's act of levelling the irrigation canal to deprive him
of the use of water from the Pampanga River.
WHEREFORE, the appealed decision is set aside, and a new one is entered ordering the appellee to grant the appellant
continued and unimpeded use of the irrigation ditch traversing his land in order to obtain water from the Pampanga River
to irrigate appellant's land. Let the records of this case be remanded to the court a quo for the reception of evidence on
the appellant's claim for damages.
SO ORDERED.

G.R. No. 95252 September 5, 1997

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

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 BELLOSILLO, J.:
MANGYAN ROAD is a 15-meter wide thoroughfare in Quezon City abutting Katipunan Avenue on the west, traversing the
edges of La Vista Subdivision on the north and of the Ateneo de Manila University and Maryknoll (now Miriam) College on
the south. Mangyan Road serves as the boundary between LA VISTA on one side and ATENEO and MARYKNOLL on
the other. It bends towards the east and ends at the gate of Loyola Grand Villas Subdivision. The road has been the
subject of an endless dispute, the disagreements always stemming from this unresolved issue: Is there an easement of
right-of-way over Mangyan Road?
In resolving this controversy, the Court would wish to write finis to this seemingly interminable debate which has dragged
on for more than twenty years.
The area comprising the 15-meter wide roadway was originally part of a vast tract of land owned by the Tuasons in
Quezon City and Marikina. On 1 July 1949 the Tuasons sold to Philippine Building Corporation a portion of their
landholdings amounting to 1,330,556 square meters by virtue of a Deed of Sale with Mortgage. Paragraph three (3) of the
deed provides that ". . . the boundary line between the property herein sold and the adjoining property of the VENDORS
shall be a road fifteen (15) meters wide, one-half of which shall be taken from the property herein sold to the VENDEE
and the other half from the portion adjoining belonging to the VENDORS."
On 7 December 1951 the Philippine Building Corporation, which was then acting for and in behalf of Ateneo de Manila
University (ATENEO) in buying the properties from the Tuasons, sold, assigned and formally transferred in a Deed of
Assignment with Assumption of Mortgage, with the consent of the Tuasons, the subject parcel of land to ATENEO which
assumed the mortgage. The deed of assignment states —
The ASSIGNEE hereby agrees and assumes to pay the mortgage obligation on the above-described land in favor of the
MORTGAGOR and to perform any and all terms and conditions as set forth in the Deed of Sale with Mortgage dated July
1, 1949, hereinabove referred to, which said document is incorporated herein and made an integral part of this contract by
reference . . . .
On their part, the Tuasons developed a part of the estate adjoining the portion sold to Philippine Building Corporation into
a residential village known as La Vista Subdivision. Thus the boundary between LA VISTA and the portion sold to
Philippine Building Corporation was the 15-meter wide roadway known as the Mangyan Road.
On 6 June 1952 ATENEO sold to MARYKNOLL the western portion of the land adjacent to Mangyan Road. MARYKNOLL
then constructed a wall in the middle of the 15-meter wide roadway making one-half of Mangyan Road part of its school
campus. The Tuasons objected and later filed a complaint before the then Court of First Instance of Rizal for the
demolition of the wall. Subsequently, in an amicable settlement, MARYKNOLL agreed to remove the wall and restore
Mangyan Road to its original width of 15 meters.
Meanwhile, the Tuasons developed its 7.5-meter share of the 15-meter wide boundary. ATENEO deferred improvement
on its share and erected instead an adobe wall on the entire length of the boundary of its property parallel to the 15-meter
wide roadway.
On 30 January 1976 ATENEO informed LA VISTA of the former's intention to develop some 16 hectares of its property
along Mangyan Road into a subdivision. In response, LA VISTA President Manuel J. Gonzales clarified certain aspects
with regard to the use of Mangyan Road. Thus —
. . . The Mangyan Road is a road fifteen meters wide, one-half of which is taken from your property and the other half from
the La Vista Subdivision. So that the easement of a right-of-way on your 71/2 m. portion was created in our favor and
likewise an easement of right-of-way was created on our 7 1/2 portion of the road in your favor (paragraph 3 of the Deed
of Sale between the Tuasons and the Philippine Building Corporation and Ateneo de Manila dated 1 July 1949 . . . .
On 28 April 1976 LA VISTA President Manuel J. Gonzales, in a letter to ATENEO President Fr. Jose A. Cruz, S. J.,
offered to buy under specified conditions the property ATENEO was intending to develop. One of the conditions stipulated
by the LA VISTA President was that "[i]t is the essence of the offer that the mutuaI right of way between the Ateneo de
Manila University and La Vista Homeowners' Association will be extinguished." The offer of LA VISTA to buy was not
accepted by ATENEO. Instead, on 10 May 1976 ATENEO offered to sell the property to the public subject to the condition
that the right to use the 15-meter roadway will be transferred to the vendee who will negotiate with the legally involved
parties regarding the use of such right as well as the development costs for improving the access road.
LA VISTA became one of the bidders. However it lost to Solid Homes, Inc., in the bidding. Thus on 29 October 1976
ATENEO executed a Deed of Sale in favor of Solid Homes, Inc., over parcels of land covering a total area of 124,424
square meters subject, among others, to the condition that —
7. The VENDOR hereby passes unto the VENDEE, its assigns and successors-in-interest the privileges of such right of
way which the VENDOR acquired, and still has, by virtue of the Deeds mentioned in the immediately preceeding
5
paragraph hereof; provided, that the VENDOR shall nonetheless continue to enjoy said right of way privileges with the
VENDEE, which right of way in favor of the VENDOR shall be annotated on the pertinent road lot titles. However it is
hereby agreed that the implementation of such right of way shall be for the VENDEE's sole responsibility and liability, and
likewise any development of such right of way shall be for the full account of the VENDEE. In the future, if needed, the
VENDOR is therefore free to make use of the aforesaid right of way, and/or Mangyan Road access, but in such a case the
VENDOR shall contribute a pro-rata share in the maintenance of the area.
Subsequently, Solid Homes, Inc., developed a subdivision now known as Loyola Grand Villas and together they now
claim to have an easement of right-of-way along Mangyan Road through which they could have access to Katipunan
Avenue.
LA VISTA President Manuel J. Gonzales however informed Solid Homes, Inc., that LA VISTA could not recognize the
right-of-way over Mangyan Road because, first, Philippine Building Corporation and its assignee ATENEO never complied
with their obligation of providing the Tuasons with a right-of-way on their 7.5-meter portion of the road and, second, since
the property was purchased for commercial purposes, Solid Homes, Inc., was no longer entitled to the right-of-way as
Mangyan Road was established exclusively for ATENEO in whose favor the right-of-way was originally constituted. LA
VISTA, after instructing its security guards to prohibit agents and assignees of Solid Homes, Inc., from traversing
Mangyan Road, then constructed one-meter high cylindrical concrete posts chained together at the middle of and along
the entire length of Mangyan Road thus preventing the residents of LOYOLA from passing through.
Solid Homes, Inc., complained to LA VISTA but the concrete posts were not removed. To gain access to LOYOLA
through Mangyan Road an opening through the adobe wall of ATENEO was made and some six (6) cylindrical concrete
posts of LA VISTA were destroyed. LA VISTA then stationed security guards in the area to prevent entry to LOYOLA
through Mangyan Road.
On 17 December 1976, to avert violence, Solid Homes, Inc., instituted the instant case, docketed as Civil Case No. Q-
22450, before the then Court of First Instance of Rizal and prayed that LA VISTA been joined from preventing and
obstructing the use and passage of LOYOLA residents through Mangyan Road. LA VISTA in turn filed a third-party
complaint against ATENEO. On 14 September 1983 the trial court issued a preliminary injunction in favor of Solid Homes,
Inc. (affirming an earlier order of 22 November 1977), directing LA VISTA to desist from blocking and preventing the use
of Mangyan Road. The injunction order of 14 September 1983 was however nullified and set aside on 31 May 1985 by the
then Intermediate Appellate Court 1 in AC-G.R. SP No. 02534. Thus in a petition for review on certiorari, docketed as G.R.
No. 71150, Solid Homes, Inc., assailed the nullification and setting aside of the preliminary injunction issued by the trial
court.
Meanwhile, on 20 November 1987 the Regional Trial Court of Quezon City rendered a decision on the merits 2 in Civil
Case No. Q-22450 affirming and recognizing the easement of right-of-way along Mangyan Road in favor of Solid Homes,
Inc., and ordering LA VISTA to pay damages thus —
ACCORDINGLY, judgment is hereby rendered declaring that an easement of a right-of-way exists in favor of the plaintiff
over Mangyan Road, and, consequently, the injunction prayed for by the plaintiff is granted, enjoining thereby the
defendant, its successors-in-interest, its/their agents and all persons acting for and on its/their behalf, from closing,
obstructing, preventing or otherwise refusing to the plaintiff, its successors-in-interest, its/their agents and all persons
acting for and on its/their behalf, and to the public in general, the unobstructed ingress and egress on Mangyan Road,
which is the boundary road between the La Vista Subdivision on one hand, and the Ateneo de Manila University, Quezon
City, and the Loyola Grand Villas Subdivision, Marikina, Metro Manila, on the other; and, in addition the defendant is
ordered to pay the plaintiff reasonable attorney's fees in the amount of P30,000.00. The defendant-third-party plaintiff is
also ordered to pay the third-party defendant reasonable attorney's fees for another amount of P15,000.00. The counter-
claim of defendant against the plaintiff is dismissed for lack of merit. With costs against the defendant.
Quite expectedly, LA VISTA appealed to the Court of Appeals, docketed as CA-G.R. CV No. 19929. On 20 April 1988 this
Court, taking into consideration the 20 November 1987 Decision of the trial court, dismissed the petition docketed as G.R.
No. 71150 wherein Solid Homes, Inc., sought reversal of the 31 May 1985 Decision in AC-G.R. SP No. 02534 which
nullified and
set aside the 14 September 1983 injunction order of the trial court. There we said —
Considering that preliminary injunction is a provisional remedy which may be granted at any time after the
commencement of the action and before judgment when it is established that the plaintiff is entitled to the relief demanded
and only when his complaint shows facts entitling such reliefs (Section 3(a), Rule 58) and it appearing that the trial court
had already granted the issuance of a final injunction in favor of petitioner in its decision rendered after trial on the merits
(Sections 7 & 10, Rule 58, Rules of Court), the Court resolved to Dismiss the instant petition having been rendered moot
and academic. An injunction issued by the trial court after it has already made a clear pronouncement as to the plaintiff's
right thereto, that is, after the same issue has been decided on the merits, the trial court having appreciated the evidence
presented, is proper, notwithstanding the fact that the decision rendered is not yet final (II Moran, pp. 81-82, 1980 ed.).
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Being an ancillary remedy, the proceedings for preliminary injunction cannot stand separately or proceed independently of
the decision rendered on the merit of the main case for injunction. The merit of the main case having been already
determined in favor of the applicant, the preliminary determination of its non-existence ceases to have any force and
effect. 3
On the other hand, in CA-G.R. CV No. 19929, several incidents were presented for resolution: two (2) motions filed by
Solid Homes, Inc., to cite certain officers of LA VISTA for contempt for alleged violation of the injunction ordaining free
access to and egress from Mangyan Road, to which LA VISTA responded with its own motion to cite Solid Homes, Inc.,
for contempt; a motion for leave to intervene and to re-open Mangyan Road filed by residents of LOYOLA; and, a petition
praying for the issuance of a restraining order to enjoin the closing of Mangyan Road. On 21 September 1989 the
incidents were resolved by the Court of Appeals 4 thus —
1. Defendant-appellant La Vista Association, Inc., its Board of Directors and other officials and all persons acting under
their orders and in their behalf are ordered to allow all residents of Phase I and II of Loyola Grand Villas unobstructed
right-of-way or passage through the Mangyan Road which is the boundary between the La Vista Subdivision and the
Loyola Grand Villas Subdivision;
2. The motion to intervene as plaintiffs filed by the residents of Loyola Grand Villas Subdivision is GRANTED; and
3. The motions for contempt filed by both plaintiff-appellee and defendant-appellant are DENIED.
This resolution is immediately executory. 5
On 15 December 1989 both motions for reconsideration of Solid Homes, Inc., and LA VISTA were denied. In separate
petitions, both elevated the 21 September 1989 and 15 December 1989 Resolutions of the Court of Appeals to this Court.
The petition of Solid Homes, Inc., docketed as G.R. No. 91433, prayed for an order directing the appellate court to take
cognizance of and hear the motions for contempt, while that of LA VISTA in G.R. No. 91502 sought the issuance of a
preliminary injunction to order Solid Homes, Inc., ATENEO and LOYOLA residents to desist from intruding into Mangyan
Road.
On 22 May 1990, pending resolution of G.R. Nos. 91433 and 91502, the Second Division of the Court of Appeals 6 in CA-
G.R. CV No. 19929 affirmed in toto the Decision of the trial court in Civil Case No. Q-22450. On 6 September 1990 the
motions for reconsideration and/or re-raffle and to set the case for oral argument were denied. In view of the affirmance of
the Decision by the Court of Appeals in CA-G.R. CV No. 19929 this Court dismissed the petition in G.R. No. 91502 for
being moot as its main concern was merely the validity of a provisional or preliminary injunction earlier issued. We also
denied the petition in G.R. No. 91433 in the absence of a discernible grave abuse of discretion in the ruling of the
appellate court that it could not entertain the motions to cite the parties for contempt "because a charge of contempt
committed against a superior court may be filed only before the court against whom the contempt has been committed"
(Sec. 4, Rule 71, Rules of Court). 7
Consequently we are left with the instant case where petitioner LA VISTA assails the Decision of respondent Court of
Appeals affirming in toto the Decision of the trial court which rendered a judgment on the merits and recognized an
easement of right-of-way along Mangyan Road, permanently enjoining LA VISTA from closing to Solid Homes, Inc., and
its successors-in-interest the ingress and egress on Mangyan Road.
In its first assigned error, petitioner LA VISTA argues that respondent appellate court erred in disregarding the decisions
in (a) La Vista Association, Inc., v. Hon. Ortiz, 8 affirmed by this Court in Tecson v. Court of Appeals; 9 (b) La Vista
Association, Inc., v. Hon. Leviste, 10 affirmed by this Court in Rivera v. Hon. Intermediate Appellate Court; 11 and, (c) La
Vista v. Hon. Mendoza, 12 and in holding that an easement of right-of-way over Mangyan Road exists. 13
We do not agree with petitioner. The reliance of petitioner on the cited cases is out of place as they involve the issuance
of a preliminary injunction pending resolution of a case on the merits. In the instant case, however, the subject of inquiry is
not merely the issuance of a preliminary injunction but the final injunctive writ which was issued after trial on the merits. A
writ of preliminary injunction is generally based solely on initial and incomplete evidence. The opinion and findings of fact
of a court when issuing a writ of preliminary injunction are interlocutory in nature and made even before the trial on the
merits is terminated. Consequently there may be vital facts subsequently presented during the trial which were not
obtaining when the writ of preliminary injunction was issued. Hence, to equate the basis for the issuance of a preliminary
injunction with that for the issuance of a final injunctive writ is erroneous. And it does not necessarily mean that when a
writ of preliminary injunction issues a final injunction follows. Accordingly, respondent Court of Appeals in its assailed
Decision rightly held that —
We are unswayed by appellant's theory that the cases cited by them in their Brief (pagers 17 and 32) and in their motion
for early resolution (page 11, Rollo) to buttress the first assigned error, are final judgments on the merits of, and therefore
res judicata to the instant query. It is quite strange that appellant was extremely cautious in not mentioning this doctrine
but the vague disquisition nevertheless points to this same tenet, which upon closer examination negates the very
7
proposition. Generally, it is axiomatic that res judicata will attach in favor of La Vista if and when the case under review
was disposed of on the merits and with Finality (Manila Electric Co., vs. Artiaga. 50 Phil. 144; 147; S. Diego vs. Carmona,
70 Phil. 281; 283; cited in Comments on the Rules of Court, by Moran. Volume II, 1970 edition, page 365; Roman
Catholic Archbishop vs. Director of Lands. 35 Phil. 339; 350-351, cited in Remedial Law Compendium, by Regalado,
Volume I, 1986 Fourth revised Edition, page 40). Appellants suffer from the mistaken notion that the "merits" of the
certiorari petitions impugning the preliminary injunction in the cases cited by it are tantamount to the merits of the main
case, subject of the instant appeal. Quite the contrary, the so-called "final judgments" adverted to dealt only with the
propriety of the issuance or non-issuance of the writ of preliminary injunction, unlike the present recourse which is directed
against a final injunctive writ under Section 10, Rule 58. Thus the invocation of the disputed matter herein is misplaced. 14
15
We thus repeat what we said in Solid Homes, Inc., v. La Vista which respondent Court of Appeals quoted in its assailed
Decision 16 —
Being an ancillary remedy, the proceedings for preliminary injunction cannot stand separately or proceed independently of
the decision rendered on the merits of the main case for injunction. The merits of the main case having been already
determined in favor of the applicant, the preliminary determination of its non-existence ceases to have any force and
effect.
17
Petitioner LA VISTA in its lengthy Memorandum also quotes our ruling in Ramos, Sr., v. Gatchalian Realty, Inc., no less
than five (5) times 18 —
To allow the petitioner access to Sucat Road through Gatchalian Avenue inspite of a road right-of-way provided by the
petitioner's subdivision for its buyers simply because Gatchalian Avenue allows petitioner a much greater ease in going to
and coming from the main thoroughfare is to completely ignore what jurisprudence has consistently maintained through
the years regarding an easement of a right-of-way, that "mere convenience for the dominant estate is not enough to serve
as its basis. To justify the imposition of this servitude, there must be a real, not a fictitious or artificial, necessity for it" (See
Tolentino, Civil Code of the Philippines, Vol. II, 2nd ed., 1972, p. 371)
Again this is misplaced. Ramos, Sr., v. Gatchalian Realty, Inc., 19 concerns a legal or compulsory easement of right-of-way
—
Since there is no agreement between the contending parties in this case granting a right-of-way by one in favor of the
other, the establishment of a voluntary easement between the petitioner and the respondent company and/or the other
private respondents is ruled out. What is left to examine is whether or not petitioner is entitled to a legal or compulsory
easement of a right-of-way —
which should be distinguished from a voluntary easement. A legal or compulsory easement is that which is constituted by
law for public use or for private interest. By express provisions of Arts. 649 and 650 of the New Civil Code, the owner of
an estate may claim a legal or compulsory right-of-way only after he has established the existence of four (4) requisites,
namely, (a) the estate is surrounded by other immovables and is without adequate outlet to a public highway; (b) after
payment of the proper indemnity; (c) the isolation was not due to the proprietor's own acts; and, (d) the right-of-way
claimed is at a point least prejudicial to the servient estate, and insofar as consistent with this rule, where the distance
from the dominant estate to a public highway may be the shortest. 20 A voluntary easement on the other hand is
constituted simply by will or agreement of the parties.
From the facts of the instant case it is very apparent that the parties and their respective predecessors-in-interest intended
to establish an easement of right-of-way over Mangyan Road for their mutual benefit, both as dominant and servient
estates. This is quite evident when: (a) the Tuasons and the Philippine Building Corporation in 1949 stipulated in par. 3 of
their Deed of Sale with Mortgage that the "boundary line between the property herein sold and the adjoining property of
the VENDORS shall be a road fifteen (15) meters wide, one-half of which shall be taken from the property herein sold to
the VENDEE and the other half from the portion adjoining belonging to the vendors;" (b) the Tuasons in 1951 expressly
agreed and consented to the assignment of the land to, and the assumption of all the rights and obligations by ATENEO,
including the obligation to contribute seven and one-half meters of the property sold to form part of the 15-meter wide
roadway; (c) the Tuasons in 1958 filed a complaint against MARYKNOLL and ATENEO for breach of contract and the
enforcement of the reciprocal easement on Mangyan Road, and demanded that MARYKNOLL set back its wall to restore
Mangyan Road to its original width of 15 meters, after MARYKNOLL constructed a wall in the middle of the 15-meter wide
roadway; (d) LA VISTA President Manuel J. Gonzales admitted and clarified in 1976, in a letter to ATENEO President Fr.
Jose A. Cruz, S.J., that "Mangyan Road is a road fifteen meters wide, one-half of which is taken from your property and
the other half from the La Vista Subdivision. So that the easement of a right-of-way on your 7 1/2 m. portion was created
in our favor and likewise an easement of right-of-way was created on our 7 1/2 m. portion of the road in your favor;" (e) LA
VISTA, in its offer to buy the hillside portion of the ATENEO property in 1976, acknowledged the existence of the
contractual right-of-way as it manifested that the mutual right-of-way between the Ateneo de Manila University and La
Vista Homeowners' Association would be extinguished if it bought the adjacent ATENEO property and would thus become
the owner of both the dominant and servient estates; and, (f) LA VISTA President Luis G. Quimson, in a letter addressed
8
to the Chief Justice, received by this Court on 26 March 1997, acknowledged that "one-half of the whole length of
(Mangyan Road) belongs to La Vista Assn., Inc. The other half is owned by Miriam (Maryknoll) and the Ateneo in equal
portions;"
These certainly are indubitable proofs that the parties concerned had indeed constituted a voluntary easement of right-of-
way over Mangyan Road and, like any other contract, the same could be extinguished only by mutual agreement or by
renunciation of the owner of the dominant estate. Thus respondent Court of Appeals did not commit a reversible error
when it ruled
that —
Concerning the pivotal question posed herein on the existence of an easement, we are of the belief, and thus hereby hold
that a right-of-way was properly appreciated along the entire route of Mangyan Road. Incidentally, the pretense that the
court a quo erred in holding that Mangyan Road is the boundary road between La Vista and Ateneo (page 31, Appellant's
Brief) does not raise any critical eyebrow since the same is wholly irrelevant to the existence of a servitude thereon from
their express admission to the contrary (paragraph 1, Answer).
One's attention should rather be focused on the contractual stipulations in the deed of sale between the Tuason Family
and the Philippine Building Corporation (paragraph 3, thereof) which were incorporated in the deed of assignment with
assumption of mortgage by the Philippine Building Corporation in favor of Ateneo (first paragraph, page 4 of the deed) as
well as in the deed of sale dated October 24, 1976 when the property was ultimately transferred by Ateneo to plaintiff-
appellee. Like any other contractual stipulation, the same cannot be extinguished except by voluntary rescission of the
contract establishing the servitude or renunciation by the owner of the dominant lots (Chuanico vs. Ibañez, 7 CA Reports,
2nd Series, 1965 edition, pages 582; 589, cited in Civil Law Annotated, by Padilla, Volume II, 1972 Edition, pages 602-
603), more so when the easement was implicitly recognized by the letters of the La Vista President to Ateneo dated
February 11 and April 28, 1976 (page 22, Decision; 19 Ruling Case Law 745).
The free ingress and egress along Mangyan Road created by the voluntary agreement between Ateneo and Solid Homes,
Inc., is thus legally demandable (Articles 619 and 625, New Civil Code) with the corresponding duty on the servient estate
not to obstruct the same so much so that —
When the owner of the servient tenement performs acts or constructs works impairing the use of the servitude, the owner
of the dominant tenement may ask for the destruction of such works and the restoration of the things to their condition
before the impairment was committed, with indemnity for damages suffered (3 Sanchez Roman 609). An injunction may
also be obtained in order to restrain the owner of the servient tenement from obstructing or impairing in any manner the
lawful use of the servitude (Resolme v. Lazo, 27 Phil. 416; 417; 418)." (Commentaries and Jurisprudence on the Civil
Code of the Philippines, by Tolentino, Volume 2, 1963 edition, page 320) 21
Resultantly, when the court says that an easement exists, it is not creating one. For, even an injunction cannot be used to
create one as there is no such thing as a judicial easement. As in the instant case, the court merely declares the
existence of an easement created by the parties. Respondent court could not have said it any better —
It must be emphasized, however, that We are not constituting an easement along Mangyan Road, but merely declaring
the existence of one created by the manifest will of the parties herein in recognition of autonomy of contracts (Articles
1306 and 619, New Civil Code; Tolentino, supra, page 308; Civil Code of the Philippines, by Paras, Volume II, 1984
edition, page 549). 22
The argument of petitioner LA VISTA that there are other routes to LOYOLA from Mangyan Road is likewise meritless, to
say the least. The opening of an adequate outlet to a highway can extinguish only legal or compulsory easements, not
voluntary easements like in the case at bar. The fact that an easement by grant may have also qualified as an easement
of necessity does not detract from its permanency as a property right, which survives the termination of the necessity. 23
That there is no contract between LA VISTA and Solid Homes, Inc., and thus the court could not have declared the
existence of an easement created by the manifest will of the parties, is devoid of merit. The predecessors-in-interest of
both LA VISTA and Solid Homes, Inc., i.e., the Tuasons and the Philippine Building Corporation, respectively, clearly
established a contractual easement of right-of-way over Mangyan Road. When the Philippine Building Corporation
transferred its rights and obligations to ATENEO the Tuasons expressly consented and agreed thereto. Meanwhile, the
Tuasons themselves developed their property into what is now known as LA VISTA. On the other hand, ATENEO sold the
hillside portions of its property to Solid Homes, Inc., including the right over the easement of right-of-way. In sum, when
the easement in this case was established by contract, the parties unequivocally made provisions for its observance by all
who in the future might succeed them in dominion.
The contractual easement of right-of-way having been confirmed, we find no reason to delve on the issue concerning P.D.
No. 957 which supposedly grants free access to any subdivision street to government or public offices within the

9
subdivision. In the instant case, the rights under the law have already been superseded by the voluntary easement of
right-of-way.
Finally, petitioner questions the intervention of some LOYOLA residents at a time when the case was already on appeal,
and submits that intervention is no longer permissible after trial has been concluded. Suffice it to say that in Director of
Lands v. Court of Appeals, 24 we said —
It is quite clear and patent that the motions for intervention filed by the movants at this stage of the proceedings where trial
has already been concluded, a judgment thereon had been promulgated in favor of private respondent and on appeal by
the losing party . . . the same was affirmed by the Court of Appeals and the instant petition for certiorari to review said
judgment is already submitted for decision by the Supreme Court, are obviously and manifestly late, beyond the period
prescribed under . . . Section 2, Rule 12 of the Rules of Court (now Sec. 2, Rule 19, 1997 Rules of Civil Procedure).
But Rule 12 of the Rules of Court, like all other Rules therein promulgated, is simply a rule of procedure, the whole
purpose and object of which is to make the powers of the Court fully and completely available for justice. The purpose of
procedure is not to thwart justice. Its proper aim is to facilitate the application of justice to the rival claims of contending
parties. It was created not to hinder and delay but to facilitate and promote the administration of justice. It does not
constitute the thing itself which courts are always striving to secure to litigants. It is designed as the means best adopted
to obtain that thing. In other words, it is a means to an end.
The denial of the motions for intervention arising from the strict application of the Rule due to alleged lack of notice to, or
the alleged failure of, movants to act seasonably will lead the Court to commit an act of injustice to the movants, to their
successors-in-interest and to all purchasers for value and in good faith and thereby open the door to fraud, falsehood and
misrepresentation, should intervenors' claims be proven to be true.
After all, the intervention does not appear to have been filed to delay the proceedings. On the contrary, it seems to have
expedited the resolution of the case as the incidents brought forth by the intervention, which could have been raised in
another case, were resolved together with the issues herein resulting in a more thorough disposal of this case.
WHEREFORE, the Decision of respondent Court of Appeals dated 22 May 1990 and its Resolution dated 6 September
1990, which affirmed the Decision of the RTC-Br. 89, Quezon City, dated 20 November 1987, are AFFIRMED.
SO ORDERED.

G.R. No. L-48384 October 11, 1943

SEVERO AMOR, petitioner,
vs.
GABRIEL FLORENTINO, ET AL., respondents.
BOCOBO, J.:

The petitioner asks for the setting aside of the decision of the Court of Appeals which affirmed the judgment of the
Court of First Instance of Ilocos Sur. The trial court declared that an easement of light and view had been established in
favor of the property of the plaintiffs (respondents herein) and ordered the petitioner to remove within 30 days all
obstruction to the windows of respondents' house, to abstain from constructing within three meters from the boundary line,
and to pay P200.00 damages.

It appears that over 50 years ago, Maria Florentino owned a house and a camarin or warehouse in Vigan, Ilocos
Sur. The house had and still has, on the north side, three windows on the upper story, and a fourth one on the ground
floor. Through these windows the house receives light and air from the lot where the camarin stands. On September 6,
1885, Maria Florentino made a will, devising the house and the land on which it is situated to Gabriel Florentino, one of
the respondents herein, and to Jose Florentino, father of the other respondents. In said will, the testatrix also devised the
warehouse and the lot where it is situated to Maria Encarnancion Florentino. Upon the death of the testatrix in 1882,
nothing was said or done by the devisees in regard to the windows in question. On July 14, 1911, Maria Encarnacion
Florentino sold her lot and the warehouse thereon to the petitioner, Severo Amor, the deed of sale stating that the vendor
had inherited the property from her aunt, Maria Florentino. In January, 1938, petitioner destroyed the old warehouse and
started to build instead a two-story house. On March 1st of that year, respondents filed an action to prohibit petitioner
herein from building higher than the original structure and from executing any work which would shut off the light and air
that had for many years been received through the four windows referred to. The Court of First Instance found on the 15th
of the same month that the construction of the new house had almost been completed, so the court denied the writ of
preliminary injunction.

10
I.

Inasmuch as Maria Florentino died in 1892, according to the finding of fact of the Court of Appeals, Articles 541 of
the Civil Code governs this case. The facts above recited created the very situation provided for in said article, which
reads as follows:

Art. 541. The existence of an apparent sign of easement between two estates, established by the proprietor of both,
shall be considered, if one of them is alienated, as a title so that the easement will continue actively and passively, unless
at the time the ownership of the two estates is divided, the contrary is stated in the deed of alienation of either of them, or
the sign is made to disappear before the instrument is executed.

When the original owner, Maria Florentino, died in 1892, the ownership of the house and its lot passed to
respondents while the dominion over the camarin and its lot was vested in Maria Encarnancion Florentino, from whom
said property was later bought by petitioner. At the time the devisees took possession of their respective portions of the
inheritance, neither the respondents nor Maria Encarnacion Florentino said or did anything with respect to the four
windows of the respondents' house. The respondents did not renounce the use of the windows, either by stipulation or by
actually closing them permanently. On the contrary, they exercised the right of receiving light and air through those
windows. Neither did the petitioner's predecessor in interest, Maria Encarnacion Florentino, object to them or demand that
they be close. The easement was therefore created from the time of the death of the original owner of both estates, so
when petitioner bought the land and the camarin thereon from Maria Encarnancion Florentino, the burden of this
easement continued on the real property so acquired because according to Article 534, "easements are inseparable from
the estate to which they actively or passively pertain."

An incidental question that arises at this juncture is whether or not Article 541 applies to a division of property by
succession. The affirmative has been authoritatively declared. (Manresa, "Comentarios al Codigo Civil Espanol," vol. 4, p.
619; Sentence of the Supreme Tribunal of Spain, November 17, 1911).

Petitioner assigns as an error of the Court of Appeals the supposed failure of that tribunal to pass upon his motion
to consider certain allegedly new evidence to prove that Maria Florentino, the original owner of the properties, died in
1885. Petitioner alleges that Maria Florentino died in 1885 and, therefore, the Law of the Partidas should be followed in
this case and not the Civil Code. However, the petitioner's contention cannot be upheld without rejecting the finding of fact
made by the Court of Appeals, as follows:

We cannot review the above finding of fact by the Court of Appeals that Maria Florentino die in 1892. The
evidentiary fact from which the Court of Appeals drew the above finding is that Gregorio Florentino during the trial in 1938
testified to facts of his own personal knowledge, and he was then 58 years old, having been born in 1880. If Maria
Florentino, as claimed by petitioner, had died in 1885, Gregorio Florentino would have been only 5 years of age at the
time of Maria Florentino's death. The Court of Appeals therefore concluded that Maria Florentino died in 1892, when
Gregorio Florentino was ten 12 years of age. We do not believe we can disturb the finding of the Court of Appeals,
because its deductions as to the date of Maria Florentino's death may be right or wrong, according to one's own
reasoning. In other words, its conclusion of fact from Gregorio Florentino's testimony is not necessarily and unavoidably
mistaken. On the contrary, it is reasonable to believe that a person 58 years old cannot remember facts of inheritance as
far back as when he was only 5 years of age.

Furthermore, the burial certificate and the gravestone, whose copy and photograph, respectively, were offered by
petitioner in a motion for new trial filed in the Court of Appeals, could have been discovered by petitioner before the trial in
the Court of First Instance by the exercise of due diligence. There is no reason why this evidence could be found when
the case was already before the Court of Appeals, but could not be found before the trial in the Court of First Instance. It
was easy, before such trial, for the petitioner to inquire from the relatives of Maria Florentino as to when she died. And
having ascertained the date, it was also easy to secure the burial certificate and a photograph of the gravestone,
supposing them to be really of Maria Florentino. The fact is, petitioner never tried to find out such date and never tried to
secure the additional evidence till his counsel raised this issue for the first time before the Court of Appeals. That Court
was therefore died in 1885. (Sec. 497, Act. 190). The petitioner's statement in his brief (p. 11) that the Court of Appeals
neither passed upon his motion nor took the burial certificate and the gravestone into account is not true, because the
very words of the Court of Appeals clearly show that the Court had in mind said motion and evidence when the decision
was signed. The decision said: "a la muerte de Maria Florentino ocurrida en 1892 (el demandado sostiene que fue con
anteriodad a 1889)" (Emphasis supplied).

11
 Lastly, the issue as to the date of Maria Florentino's death cannot be raised for the first time on appeal. Petitioner
did not in the trial court allege or prove this point. He presented this issue for the first time in the Court of Appeals. (Sec.
497, Act. 190).

Let us now consider Article 541 more closely in its application to the easement of light and view and to the
easement not to build higher (altius non tollendi). These two easements necessarily go together because an easement of
light and view requires that the owner of the servient estate shall not build to a height that will obstruct the window. They
are, as it were, the two sides of the same coin. While an easement of light and view is positive, that of altius non tollendi is
negative. Clemente de Diego states that when article 538 speaks of the time for the commencement of prescription for
negative easements, "it refers to those negative easements which are the result and consequence of others that are
positive, such as the easement not to build higher, or not to construct, which is indispensable to the easement of light."
(Se refiere a aquellas servidumbres negativas que son sucuela y consecuencia de otras positivaas, como la de no
levantar mas alto, o de no edificar, que es imprescindible para la servidumbre de luces.") ("Curso Elemental de Derecho
Civil Españos, Comun y Foral," vol. 3, p. 450). This relation of these two easements should be borned in mind in
connection with the following discussion of (1) the modes of establishing and acquiring easements; (2) the meaning of
article 541; and (3) the doctrine in the case of Cortes vs. Yu-Tibo.

First, as to the modes of establishing and acquiring easements. According to Article 536, easements are
established by law or by will of th owners. Acquisition of easements is first by title or its equivalent and seconly by
prescription. What acts take the place of title? They are mentioned in Articles 540 and 541, namely, (1) a deed of
recognition by the owner of the servient estate; (2) a final judgment; and (3) an apparent sign between two estates,
established by the owner of both, which is the case of article 541. Sanchez Roman calls cuh apparent sign under article
541 "supletoria del titulo constitutivo de la servidumbre (Derecho Civil, vol. 3, p. 656). The same jurist says in regard to
the ways of constituting easements:

(Spanish word - page 410)

In the Sentence of the Supreme Tribunal of Spain dated November 7, 1911, it was held that under article 541 of the
Civil Code, the visible and permanent sign of an easement "is the title that characterizes its existence" ("es el titulo
caracteristico de su existencia.")

It will thus be seen that under article 541 the existence of the apparent sign in the instance case, to wit, the four
windows under consideration, had for all legal purposes the same character and effect as a title of acquisition of the
easement of light and view by the respondents upon the death of the original owner, Maria Florentino. Upon the
establishment of that easement of light and view, the con-comitant and concurrent easement of altius non tollendi was
also constituted, the heir of the camarin and its lot, Maria Encarnacion Florention, not having objected to the existence of
the windows. The theory of article 541, of making the existence of the apparent sign equivalent to a title, when nothing to
the contrary is said or done by the two owners, is sound and correct, because as it happens in this case, there is an
implied contract between them that the easements in question should be constituted.

Analyzing article 541 further, it sees that its wording is not quite felicitous when it says that the easement should
continue. Sound juridical thinking rejects such an idea because, properly speaking, the easement is not created till the
division of the property, inasmuch as a predial or real easement is one of the rights in another's property, or jura in re
aliena and nobdy can have an easement over his own property, nimini sua res servit. In the instant case, therefore, when
the original owner, Maria Florentino, opened the windows which received light and air from another lot belonging to her,
she was merely exercising her right of dominion. Consequently, the moment of the constitution of the easement of light
and view, together with that of altius non tollendi, as the time of the death of the original owner of both properties. At that
point, the requisite that there must be two proprietors — one of the dominant estate and another of the servient estate —
was fulfilled. (Article 530, Civil Code.)

Upon the question of the time when the easement in article 541 is created, Manresa presents a highly interesting
theory, whether one may agree with it or not. He says:

The concealed easement, as it were by the oneness of the owner, becomes visible, and is revealed in all its
importance when the ownership of the estate or portions of the estate which respectively should play the role of servient
and dominant estates is divided.

Such a view cannot be fully accepted because before the division of the estate there is only a service in fact but not
an easement in the strictly juridical sense between the two buildings or parcels of land.

12
 We come now to the case of Cortes vs. Yu-Tibo, 2 Phil., 24 decided in 1903, Mr. Justice, later Chief Justice, Mapa
speaking for the Court. Counsel for petitioner contends that the doctrine in that case is controlling in the present one. If the
essential facts of the two cases were the same, there is not doubt but that the early opinion would be decisive inasmuch
as it is by its cogent reasoning one of the landmarks in Philippine jurisprudence. However, the facts and theories of both
cases are fundamentally dissimilar. What is more, as will presently be explained, that every decision makes a distinction
between that case and the situation provided for in article 541. In that case, Cortes sought an injunction to restrain Yu-
Tibo from continuing the construction of certain buildings. Cortes' wife owned a house in Manila which had windows that
had been in existence since 1843. The defendant, who occupied a house on the adjoining lot, commenced to raise the
roof of the house in such a manner that one-half of the windows in the house owned by plaintiff's wife had been covered.
This Court, in affirming the judgment of the lower court which dissolved the preliminary injunction, held that the opening of
windows through one's own wall does not in itself create an easement, because it is merely tolerated by the owner of the
adjoining lot, who may freely build upon his land to the extent of covering the windows, under article 581, and that his kind
of easement is negative which can be acquired through prescription by counting the time from the date when the owner of
the dominant estate in a formal manner forbids the owner of the servient estate from obstructing the light, which had not
been done by the plaintiff in this case.

It will thus be clear that one of the essential differences between that case and the present is that while the Yu-Tibo
case involved acquisition of easement by prescription, in the present action the question is the acquisition of easement by
title, or its equivalent, under article 541. Therefore, while a formal prohibition was necessary in the former case in order to
start the period of prescription, no such act is necessary here because the existence of the apparent sign when Maria
Florentino died was sufficient title in itself to created the easement.

Another difference is that while in the Yu-Tibo case, there were tow different owners of two separate houses from
the beginning, in the present case there was only one original owner of the two structures. Each proprietor in the Yu-Tibo
case was merely exercising his rights of dominion, while in the instant case, the existence of the apparent sign upon the
death of the original owner ipso facto burdened the land belonging to petitioner's predecessor in interest, with the
easements of light and view and altius non tollendi in virtue of article 541.

The very decision in Cortes vs. Yu-Tibo distinguishes that case from the situation foreseen in article 541. Said this
Court in that case:

It is true that the Supreme Court of Spain, in its decisions of February 7 and May 5, 1986, has classified as positive
easements of light 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 noting 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,
presuposes on the part of the owner of the dominant estate a right to such enjoyment arising, in the particular cases
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
13
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. (2 Phil., 29-31).

Finally, the Yu-Tibo case was decided upon the theory if the negative easement of altius non tollendi, while the
instant case is predicated on the idea of the positive easement of light and view under article 541. On this point, suffice it
to quote from Manresa's work. He says:

That in easements whose positive aspect appears tied up with the negative aspect, just as for the purposes of
prescription the negative aspect has to be considered preferential, so for the purposes of Article 541 it is sufficient to view
the positive aspect, and therefore the existence of openings or windows between two estates which belonged to the same
owner is sufficient to establish, when the ownership of these estates is divided, the easement of light or view, and with
them the easements of altius non tollendi because without the latter, the former cannot exists.

There are several decisions of the Supreme Court of Spain which have applied Article 541. Some of them are those
of February 7, 1986; February 6, 1904; May 29, 1911; and November 17, 1911.

The sentence of February 7, 1896, dealt with windows established in one house by the original of two houses.
When he died, the two houses were adjudicated to different heirs. The court held that there was an easement of light.

Considering that, according to what has been established by this Supreme Tribunal in repeated sentences, and
principally declared in the sentence promulgated on October 21, 1892, the provision of law 14, title 31 of Partida 3 in
treating of the mode of constituting easements, is not contrary to the principle that when an estate is divided between
different persons, and in the contract nothing is said out a mode of enjoyment different from that used by the original
owner thereof, the necessary easements for said mode of enjoyment are understood to be subsisting;

Considering that such principle and jurisprudence have obtained a new santion, for due to them is the clear and
concrete concept of Article 541 applicable to the case . . . .

Therefore, considering that Maria Florentino died in 1892, according to a finding of fact by the Court of Appeals,
there is an easement of light and view in favor of the respondents' property under article 541 of the Civil Code.

But granting, arguendo, that Maria Florentino died in 1885, as contended by petitioner, nevertheless the same
principle enunciated in article 541 of the Spanish Civil Code was already an integral part of the Spanish law prior to the
Civil Code, the easement in question would also have to be upheld. That the law before the Civil Code was the same as
at present is shown by the following:

1. Under Law 14, Title 31, Partida 3, this easement was constituted by an implied contract among the heirs of Maria
Florentino.

2. Granting for the sake of argument that this easement was not created through an implied contract according to Law 14,
Title 31, Partida 3, yet that provision of the Partidas was not inconsistent with the principle in question, so that there was a
gap in the Partidas which the Supreme Court of Spain filled up from the Roman Law and modern civil codes, by
recognizing the existence of this kind of easement.

3. Law 17, Title 31, Partida 3 regarding the extinguishment of an easement did not prohibit the easement in the instant
case, Therefore, we should adhere to the decisions of the Supreme Court of Spain which maintain this easement under
the Spanish law prior to Civil Code.

4. Other considerations show that the principle of apparent sign as announced by the Supreme Tribunal of Spain is not
incompatible with the Partidas.

First, as to the implied contract. Law 14, Title 31, Partida 3 provided that easements were acquired by contract, by
will and by prescription. Upon the death of the original owner, Maria Florentino, the four windows under consideration
already existed and were visible. One of the heirs, Maria Encarnacion Florentino, to whom the camarin and its lot had
been devised, having failed to object to the same, knowingly consented to their continuance. Nor did Gabriel and Jose
Florentino (devisees of the house that had the four windows) permanently close the windows. There was consequently an
implied agreement between her and the devisees of the house with the four windows to the effect that the service of these
windows would continue, thus creating the easement of light and view and the concomitant easement of altius non
14
tollendi. Hence, the easement in question was acquired by Gabriel and Jose Florentino through contract under Law 14,
Title 31, Partida 3.

Secondly, with respect to the doctrine of the Supreme Tribunal of Spain. In a series of decisions of that court, it was
held that Law 14, Title 31, Partida 3 was not opposed to the easement under review. One of those decisions is that of
November 7, 1883, which held:

(Spanish word - page 418)

Other decisions of the Supreme Tribunal of Spain to the same effect are those of September 14, 1867 and June 7,
1883. (See Scaevola, "Codigo Civil Comentado" vol. 10, pp. 272-274.)

So that, granting for the sake of argument, that the easement was not created through an implied contract
according to Law 14, Title 31, Partida 3, yet that provision of the Partidas, according to decisions of the Supreme Tribunal
of Spain, was not inconsistent with the principle in question. The problem in this case not having been foreseen in Law 14,
Title 31, Partida 3, there was a gap in the old legislation, which the Supreme Tribunal of Spain filled up from the Roman
Law and from modern Civil Codes.

The principle in question was deeply rooted in the Roman Law. It is from the Roman Law that the Supreme Tribunal
of Spain obtained this principle, in order to solve a question not provided for by the Partidas, whose main source was also
the Roman law. In other words, the Partidas being silent on the point under consideration, the Supreme Tribunal of Spain
resorted to the authoritative voice of the Roman law from which the Law of the Partidas had derived its inspiration.

The following quotations from the Spanish version the Roman Law Digest will prove the assertions just made:

(Spanish word - page 419)

Among the modern civil codes which contain the rule in question are those of France, Belgium, Holland, Portugal,
Mexico and Chile. It is presumed that the Supreme Tribunal of Spain had also in mind at least one of them when it
decided cases involving this principle before the promulgation of the Spanish Civil Code.

When, therefore, Maria Florentino died (supposing she died in 1885), the status of the Spanish law was in favor of
the doctrine in question. We cannot change it because it was in full force at the time of the alleged date of Maria
Florentino's death. We cannot reject a doctrine established by the Spanish Supreme Tribunal as an integral part of the
Spanish law before the promulgation of the Civil Code in 1889. And we know that jurisprudence — in the sense of court
decisions — is one of the sources of the law.

Thirdly, concerning Law 17, Title 31, Partida 3. It is true that the eminent jurist, Manresa, is of the opinion that "el
precepto del art. 541 no solo no existia en nuestra antigua legislacion, sino que podia deducirse claramente lo contrario
de la ley 17, tit. 31, Partida 3.a . . . ." However, a careful reading of this provision of the Partidas reveals that the same did
not militate against the creation of an easement by an apparent sign if nothing was said or done when the property is
divided. Law 17, Title 31, Partida 3, read as follows:

(spanish word - page 420-21)

This law regulates the extinguishment of an easement by merger of the dominant and the servient estates.
Speaking of this law of the Partidas and of article 546, par. 1, of the Civil Code, both of which refer to merger of the two
estates, Acaevola says: (p. 319, vol. 10)

But there is a world of difference between extinguishment of an easement by merger of the two estates and the
constitution of an easement by an apparent sign when nothing is done or said upon the division of the property. Law 17,
title 31, Partida 3, having in mind only the modes of extinguishment, the legislator did not intend to cover the question
involved in the present case, which refers to the creation of an easement.

What, then, are the differences between the extinguishment of an easement by merger under Law 17, title 31,
Partida 3, and the constitution of an easement in this case, both before and after the Civil Code went into effect?

First, in merger under Law 17, Title 31, Partida 3, there were from the very beginning, already two separate estates,
the dominant and the servient estates, whereas in this case, there was only one estate.

15
 Second, in merger under said Law 17, there were already two owners, whereas in this case, there was only one
owner, Maria Florentino.

Third, in merger under Law 17, there was already an easement in the legal sense, whereas in the instant case,
there was only a service between the two lots, (while Maria Florentino was living) but there was as yet no easement from
the juridical viewpoint.

4. Other considerations prove that the principle of apparent sign as enunciated by the Supreme Tribunal of Spain is
not inconsistent with the Partidas. These considerations are:

1. Article 537, Civil Code, provides that continuous and apparent easements are acquired by title, or by prescription.
However, side by side with that article is article 541 which contemplates an easement upon division of an estate, unless a
stipulation to the contrary is agreed upon, or the sign is destroyed. Bearing in mind that "title" includes a contract, our view
is that if Article 537 and 541 of the Civil Code can stand together, there is no reason why Law 14, title 31, Partida 3,
whereby easements are acquired by contract, by will and by prescription should be considered incompatible with the
easement under review.

2. Article 546, par. 1 of the Civil Code ordains that by merger of the two estates in the same owner an easement is
extinguished. Yet, coexistent with such provision is that of article 541 regarding the apparent sign which is a title for the
easement. If these two principles can and do stand together under the Civil Code, the doctrine laid down by the Supreme
Tribunal of Spain — before the Civil Code was in force — about the effect of an apparent sign can also stand together
with Law 17, title 31, Partida 3 declaring the extinguishment of an easement by merger.

3. Under article 546, par. 1 of the Civil Code, merger extinguishes an easement. So in case the estate is again divided by
purchase, etc., the easement is not, under the Civil Code automatically revived. That is the same provision of law 17, title
31, Partida 3, which does not reject the principle in question, just as article 546, par. 1 of the Civil Code does not reject
article 541 about an apparent sign.

III.

Aside from the foregoing reasons that support the easement under consideration, the same has been acquired by
respondents through prescriptions.

The easement involved in this case is of two aspects: light and view and altius non tollendi. These two aspects
necessarily go together because an easement of light and view prevents the owner of the sevient estate from building to a
height that will obstruct the windows. This court in Cortes vs. Yu-Tibo, supra, held that the easement concerned when
there is an apparent sign established by the owner of two estates is positive. Manresa is of the same opinion, supra. This
being so, and inasmuch as the original heirs of Maria Florentino succeeded to these two estates either in 1885 or in 1892
and as petitioner bought one of the lots in 1911, the prescriptive period under any legislation that may be applied — the
Partidas, Civil Code or Code of Civil Procedure — has elapsed without the necessity of formal prohibition on the owner of
the servient estate. The respondent's action was brought in 1938. The persons who were present, and 20 years between
absentees. (4 Manresa, 605). According to article 537 of the Civil Code, continous and apparent easements may be
acquired by prescription for 20 years. Under sections 40 and 41 of the Code of Civil Procedure, the period is 10 years.

IV.

The petitioner maintains that he is an innocent purchaser for value of the lot and camarin thereon, and that he was
not bound to know the existence of the easement because the mere opening of windows on one's own wall does not ipso
facto create an easement of light. Such contention might perhaps be in point if the estates had not originally belonged to
the same owner, who opened the windows. But the petitioner was in duty bound to inquire into the significance of the
windows, particularly because in the deed of sale, it was stated that the seller had inherited the property from her aunt,
Maria Florentino. Referring to the Sentence of the Supreme Court of Spain dated February 7, 1896, which applied Article
541, this Court in the case of Cortes vs. Yu-Tibo already cited, said that the establishment of the easement "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 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." (p. 31). Moreover, it has been held that purchasers
of lands burdened with apparent easements do not enjoy the rights of third persons who acquire property, though the
burden it not recorded. (Sentence of the Supreme Tribunal of Spain, April 5, 1898).

16
V.

Let us now discuss the case from the standpoint of justice and public policy.

First. — When Maria Encarnacion Florentino, as one of the devisees, accepted the camarin and the lot, she could
not in fairness receive the benefit without assuming the burden of the legacy. That burden consisted of the service in fact
during the lifetime of the original owner, which service became a true easement upon her death.

Second. — According to Scaevola, the reason for the principle in question is that there is a tacit contract. He says in
vol. 10, p. 277:

(spanish word - page 424)

It is not just to allow Maria Encarnacion Florentino or her successor in interest to repudiate her own undertaking,
implied, it is true, but binding nevertheless. This easement is therefore a burden which Maria Encarnacion Florentino and
her successor in interest willingly accepted. They cannot now murmur against any inconvenience consequent upon their
own agreement.

Third. During the construction of the new house by the petitioner, the respondents filed an action to stop the work.
But petitioner continued the construction, so that when the Court of First Instance was ready to pass upon the preliminary
injunction, the work had almost been finished. Petitioner, therefore, cannot complain if he is now ordered to tear down part
of the new structure so as not to shut off the light from respondents' windows.

Fourth. When petitioner bought this lot from the original coheir, Maria Encarnacion Florentino, the windows on
respondents' house were visible. It was petitioner's duty to inquire into the significance of those windows. Having failed to
do so, he cannot now question the easement against the property which he purchased.

(spanish word - page 425)

This idea of easements can never become obsolete in the face of modern progress. On the contrary, its need is all
the more pressing and evident, considering that this mutual assistance and giving way among estates is demanded by the
complexities of modern conditions, such as those which obtain in large cities where buildings, large and small, are so
close together.

VI.

Recapitulating, we believe the easement of light and view has been established in favor of the property of
respondents, for these reasons:

1. Maria Florentino having died in 1892, according to a finding of fact of the Court of Appeals, which we cannot review,
Article 541 of the Civil Code is applicable to this case.

2. Granting, arguendo, that Maria Florentino died in 1885, nevertheless that same principle embodied in article 541 of the
Civil Code was already an integral part of the Spanish law before the promulgation of the Civil Code in 1889, and
therefore, even if the instant case should be governed by the Spanish law prior to the Civil Code, the easement in
question would also have to be upheld.

3. The easement under review has been acquired by respondents through prescription.

4. The petitioner was not an innocent purchaser, as he was in duty bound to inquire into the significance of the windows.

5. Justice and public policy are on the side of the respondents.

Wherefore, the judgment appealed from should be and is hereby affirmed, with costs against the petitioner. So
ordered.

G.R. No. L-27451 February 28, 1969

PAZ ONGSIACO vs. Ongsiaco
MAKALINTAL, J.:
17
 The plaintiffs below (respondents here) filed a complaint 1 against herein petitioners alleging ownership of a parcel
of land situated in the municipality of Cuyapo, Nueva Ecija, with an area of 255 hectares, more or less, and praying that
the defendants be ordered to surrender possession to the plaintiffs and to pay damages, attorney's fees and costs. The
said parcel is described in the complaint as follows:

A PARCEL OF LAND ADJOINED IN MASSE

INDICATED "LOT X"

(Between the red and green lines) on the plan S.W.O. 24137, portion of our actual LANDHOLDINGS. Bounded on
the North, North-west, West, South-west and South by the property of the defendants, registered in 1910 in their
registration case 5550 covered in O.C.T. 139 and on the East are numerous individual lots owned by the plaintiffs;
containing an area of TWO HUNDRED FIFTY FIVE (255) hectares, more or less, situated in the aforesaid barrios of the
municipality of Cuyapo, Province of Nueva Ecija. This property is assessed for the amount of P76,500.00 at P300.00 per
hectare, as per schedule of values in the municipality of Cuyapo, Province of Nueva Ecija.

The defendants moved to dismiss on the following grounds:

1. That the cause of action if any is already barred by the statute of limitations.

2. The Court has no jurisdiction over the nature of the action as in effect it seeks to annul or revoke decisions and
solutions of the Supreme Court considering that a court of first instance is not authorized to do this even assuming that
the decisions or resolutions of the Supreme Court are wrong.

3. The complaint stated no cause of action.

4. The cause of action is already barred by two prior judgments and several resolutions.

Respondent Court denied the motion to dismiss in its order of July 18, 1966, which states:

One of the grounds of the Motion to Dismiss filed by the defendant Paz Ongsiaco thru her counsel on June 8, 1966
is that the cause of action is already barred by two prior judgments and several resolutions. However, the complaint on its
face appears to have a different cause of action than the two prior cases and it is up to the defendants to prove their
defense of res judicata. Furthermore, the allegation of the plaintiffs that the defendants are encroaching upon the
boundaries of their property is also a matter of evidence.

It may be noted that the foregoing order of denial ruled merely on two of the grounds alleged in the motion to
dismiss, namely, bar by prior judgments and lack of cause of action. It did not resolve the plea of prescription. This
omission is now relied upon, among other reasons, in the instant petition for certiorari to set aside the order aforequoted,
as well as a subsequent order denying petitioners' motion for reconsideration.

The voluminous pleadings, motions and memoranda filed here deal largely with the plea of res judicata, particularly
with the question of identity between the land claimed by respondents as an integral portion of the lands involved in the
previous litigations between the parties and/or their predecessors-in-interest, namely: Government of the Philippine
Islands vs. Leoncio Abad, et al., (47 Phil. 573); Feliciano Abad, et al. vs. Government of the Philippines, (103 Phil. 247);
Luis Antonio, et al. vs. Jose Mariano de Santos, et al., Cad. Case No. 19 of the Court of First Instance of Nueva Ecija and
the resolutions of the Supreme Court of October 19, 1965 and December 3, 1965, dismissing the appeal in the last
mentioned case.

For the resolution of the present petition it is not necessary to go into identity of the land as a point material to the
question of res judicata. The issue of prescription is decisive, and the failure of respondent Court to resolve it constitutes a
grave abuse of discretion correctible by certiorari.

Paragraph 7 of the complaint below contains the following allegation:

That the defendants are illegally in possession, occupation and cultivation of the land indicated "LOT X" on Plan
SWO 2437, since 1924 after the Cadastral Court's decision in 1924 and benefited on the crops raised thereon, to the
prejudice of the plaintiffs. Such possession and cultivation by the defendants over the land in question are without just

18
title, for it was not within the bounds of their registered property in 1910, covered by O. C. T. No. 139, issued by virtue of
DECREE 4485-A in their Registration Case No. 5550.

Elaborating on the matter of possession, respondents state in their memorandum of September 18, 1967:

... Notwithstanding the fact that plaintiffs, predecessors-in-interests were the original occupants over the land (Lot
"X") since time immemorial, who cleared and introduced improvements thereon, such as the pilapils, dams, fruit trees,
coconut plants and others on the land (Lot "X") and became productivity and cultivable (sic). However, on or before 1924
during the cadastral survey of Cuyapo, Nueva Ecija, they (defendants-petitioners) moved their monuments 450 meters,
more or less, from their respective permanent places according to the technical description specified in the notice of
publication in the Official Gazette of their Registration case 5550 in 1910. Thereafter, their Overseers, Encargados or
Catiwalas informed to the people, (our predecessors-in-interests) that their boundary is up to the RED LINES, thus in
1924, our predecessors-in-interests left the premises (Lot "X") and stayed up to the RED LINE appearing on plan SWO-
24137. However, such possession of the defendants-petitioners over the land (lot "X") is possession in bad faith, which it
would not ripen into ownership.lawphi1.nêt

It is thus admitted that since 1924 or for a period of forty-two years before the basic complaint was filed in 1966,
petitioners had been in possession of the land claimed by plaintiffs below, now respondents, and that such possession
was adverse, or in concept of owner, although allegedly in bad faith. Under the Code of Civil Procedure formerly in force,
good or bad faith was immaterial for purposes of acquisitive prescription. Adverse possession in either character ripened
into ownership after the lapse of ten years. 2 In the same manner, an action to recover title to or possession of immovable
property prescribed in the same period. 3

There be no doubt that the former laws on prescription apply here, pursuant to Article 1116 of the Civil Code. 4
Even the thirty-year period fixed in the new Civil Code for the acquisition of ownership by extraordinary prescription, 5 or
for the extinction of the right of action (real) over immovables, 6 had expired when the present action was filed.

WHEREFORE, the writ prayed for is granted. The orders complained of are set aside and the complaint filed by
private respondents below is ordered dismissed, with costs.

G.R. No. 112331 May 29, 1996

ANASTACIA QUIMEN, petitioner,

vs.
COURT OF APPEALS and YOLANDA Q. OLIVEROS, respondents.
BELLOSILLO, J.:p

IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will cause least prejudice shall be
chosen. However, if the two circumstances do not concur in a single tenement, the way where damage will be least shall
be used even if not the shortest route. 1 This is so because least prejudice prevails over shortest distance. This means
that the court is not bound to establish what is the shortest distance; a longer way may be adopted to avoid injury to the
servient estate, such as when there are constructions or walls which can be avoided by a round about way, or to secure
the interest of the dominant owner, such as when the shortest distance would place the way on a dangerous decline.

Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together with her brothers Sotero, Sulpicio,
Antonio and sister Rufina inherited a piece of property situated in Pandi, Bulacan. They agreed to subdivide the property
equally among themselves, as they did, with the shares of Anastacia, Sotero, Sulpicio and Rufina abutting the municipal
road.
The share of Anastacia, located at the extreme left, was designated as Lot No. 1448-B-1. It is bounded on the right by the
property of Sotero designated as Lot. No. 14413-B-2. Adjoining Sotero's property on the right are Lots Nos. 1448-B-3 and
1448-B-4 originally owned by Rufina and Sulpicio, respectively, but which were later acquired by a certain Catalina
Santos. Located directly behind the lots of Anastacia and Sotero is the share of their brother Antonio designated as Lot
No. 1448-B-C which the latter divided into two (2) equal parts, now Lots Nos. 1448-B-6-A and 1448-B-6-B, each with an
area of 92 square meters. Lot No. 1448-B-6-A is located behind Anastacia's Lot No. 1448-B-1, while Lot No. 1448-B-6-B
is behind the property of Sotero, father of respondent Yolanda.

In February 1982 Yolanda purchased Lot No. 1448-B-6-A from her uncle Antonio through her aunt Anastacia who was
then acting as his administratrix. According to Yolanda, when petitioner offered her the property for sale she was hesitant
to buy as it had no access to a public road. But Anastacia prevailed upon her to buy the lot with the assurance that she
would give her a right of way on her adjoining property for P200.00 per square meter.
19
Thereafter, Yolanda constructed a house on the lot she bought using as her passageway to the public highway a portion
of Anastacia's property. But when Yolanda finally offered to pay for the use of the pathway Anastacia refused to accept
the payment. In fact she was thereafter barred by Anastacia from passing through her property. 2

In February 1986 Yolanda purchased the other lot of Antonio Quimen, Lot No. 1448-B-6-B, located directly behind the
property of her parents who provided her a pathway gratis et amore between their house, extending about nineteen (19)
meters from the lot of Yolanda behind the sari sari store of Sotero, and Anastacia's perimeter fence. The store is made of
strong materials and occupies the entire frontage of the lot measuring four (4) meters wide and nine meters (9) long.
Although the pathway leads to the municipal road it is not adequate for ingress and egress. The municipal road cannot be
reached with facility because the store itself obstructs the path so that one has to pass through the back entrance and the
facade of the store to reach the road.

On 29 December 1987 Yolanda filed an action with the proper court praying for a right of way through Anastacia's
property. An ocular inspection upon instruction of the presiding judge was conducted by the branch clerk of court. The
report was that the proposed right of way was at the extreme right of Anastacia's property facing the public highway,
starting from the back of Sotero's sari-sari store and extending inward by one (1) meter to her property and turning left for
about five (5) meters to avoid the store of Sotero in order to reach the municipal road 3 and the way was unobstructed
except for an avocado tree standing in the middle. 4

But on 5 September 1991 the trial court dismissed the complaint for lack of cause of action; explaining that the right of
way through Sotero's property was a straight path and to allow a detour by cutting through Anastacia's property would no
longer make the path straight. Hence the trial court concluded that it was more practical to extend the existing pathway to
the public road by removing that portion of the store blocking the path as that was the shortest route to the public road and
the least prejudicial to the parties concerned than passing through Anastacia's property. 5

On appeal by respondent Yolanda, the Court of Appeals reversed the lower court and held that she was entitled to a right
of way on petitioner's property and that the way proposed by Yolanda would cause the least damage and detriment to the
servient estate. 6 The appellate court however did not award damages to private respondent as petitioner did not act in
bad faith in resisting the claim.

Petitioner now comes to us imputing ERROR to respondent Court of Appeals: (a) in disregarding the agreement of the
parties; (b) in considering petitioner's property as a servient estate despite the fact that it does not abut or adjoin the
property of private respondent; and, (c) in holding that the one-meter by five-meter passage way proposed by private
respondent is the least prejudicial and the shortest distance to the public road.

Incidentally, petitioner denies having promised private respondent a right of way. She claims that her agreement with
private respondent was to provide the latter with a right of way on the other lot of Antonio Quimen under her
administration when it was not yet sold to private respondent. Petitioner insists that passing through the property of
Yolanda's parents is more accessible to the public road than to make a detour to her property and cut down the avocado
tree standing thereon.

Petitioner further argues that when Yolanda purchased Lot No.

1448-B-6-B in 1986 the easement of right of way she provided her (petitioner) was ipso jure extinguished as a result of the
merger of ownership of the dominant and the servient estates in one person so that there was no longer any compelling
reason to provide private respondent with a right of way as there are other surrounding lots suitable for the purpose.
Petitioner strongly maintains that the proposed right of way is not the shortest access to the public road because of the
detour and that, moreover, she is likely to suffer the most damage as she derives a net income of P600.00 per year from
the sale of the fruits of her avocado tree, and considering that an avocado has an average life span of seventy (70) years,
she expects a substantial earning from it. 7

But we find no cogent reason to disturb the ruling of respondent appellate court granting a right of way to private
respondent through petitioner's property. In fact, as between petitioner Anastacia and respondent Yolanda their
agreement has already been rendered moot insofar as it concerns the determination of the principal issue herein
presented. The voluntary easement in favor of private respondent, which petitioner now denies but which the court is
inclined to believe, has in fact become a legal easement or an easement by necessity constituted by law. 8

As defined, an easement is a real right on another's property, corporeal and immovable, whereby the owner of the latter
must refrain from doing or allowing somebody else to do or something to be done on his property, for the benefit of
another person or tenement. 9 It is jus in re aliena, inseparable, indivisible and perpetual, unless extinguished by causes
20
provided by law. A right of way in particular is a privilege constituted by covenant or granted by law 10 to a person or class
of persons to pass over another's property when his tenement is surrounded by realties belonging to others without an
adequate outlet to the public highway. The owner of the dominant estate can demand a right of way through the servient
estate provided he indemnifies the owner thereof for the beneficial use of his property. 11

The conditions sine quo non for a valid grant of an easement of right of way are: (a) the dominant estate is surrounded by
other immovables without an adequate outlet to a public highway; (b) the dominant estate is willing to pay the proper
indemnity; (c) the isolation was not due to the acts of the dominant estate; and, (d) the right of way being claimed is at a
point least prejudicial to the servient estate. 12

A cursory examination of the complaint of respondent Yolanda for a right of way 13 readily shows that —

[E]ven before the purchase of the said parcels of land the plaintiff was reluctant to purchase the same for they are
enclosed with permanent improvements like a concrete fence and store and have (sic) no egress leading to the road but
because of the assurance of the defendant that plaintiff will be provided one (1) meter wide and five (5) meters long right
of way in the sum of P200.00 per square meter to be taken from Anastacia's lot at the side of a concrete store until plaintiff
reach(es) her father's land, plaintiff was induced to buy the aforesaid parcels of land . . . That the aforesaid right of way is
the shortest, most convenient and the least onerous leading to the road and being used by the plaintiff's predecessors-in-
interest from the very inception . . .

The evidence clearly shows that the property of private respondent is hemmed in by the estates of other persons including
that of petitioner; that she offered to pay P200.00 per square meter for her right of way as agreed between her and
petitioner; that she did not cause the isolation of her property; that the right of way is the least prejudicial to the servient
estate. 14 These facts are confirmed in the ocular inspection report of the clerk of court, more so that the trial court itself
declared that "[t]he said properties of Antonio Quimen which were purchased by plaintiff Yolanda Quimen Oliveros were
totally isolated from the public highway and there appears an imperative need for an easement of right of way to the public
highway." 15

Petitioner finally insists that respondent court erroneously concluded that the right of way proposed by private respondent
is the least onerous to the parties. We cannot agree. Article 650 of the New Civil Code explicitly states that the easement
of right of way shall be established at the point least prejudicial to the servient estate and, insofar as consistent with this
rule, where the distance from the dominant estate to a public highway may be the shortest. The criterion of least prejudice
to the servient estate must prevail over the criterion of shortest distance although this is a matter of judicial appreciation.
While shortest distance may ordinarily imply least prejudice, it is not always so as when there are permanent structures
obstructing the shortest distance; while on the other hand, the longest distance may be free of obstructions and the
easiest or most convenient to pass through. In other words, where the easement may be established on any of several
tenements surrounding the dominant estate, the one where the way is shortest and will cause the least damage should be
chosen. However, as elsewhere stated, if these two (2) circumstances do not concur in a single tenement, the way which
will cause the least damage should be used, even if it will not be the shortest. 16 This is the test.

In the trial court, petitioner openly admitted —

Q. You testified during your direct examination about this plan, kindly go over this and please point to us in what portion of
this plan is the house or store of the father of the (plaintiff )?

A. This one, sir (witness pointed a certain portion located near the proposed right of way).

xxx xxx xxx

Q. Now, you will agree with me . . . that this portion is the front portion of the lot owned by the father of the plaintiff and
which was (sic) occupied by a store made up of strong materials?

A. It is not true, sir.

Q. What materials does (sic) this store of the father of the plaintiff made of?

A. Hollow blocks and the side is made of wood, sir.

xxx xxx xxx

21
Q. Just before your brother disposed that 1/2 portion of the lot in question, what right of way does (sic) he use in reaching
the public road, kindly point to this sketch that he is (sic) using in reaching the public road?

A. In my property, sir.

Q. Now you will agree with me . . . the main reason why your brother is (sic) using this property is because there was a
store located near this portion?

A. Yes, and according to the father of Yolanda there is no other way than this, sir. 17

The trial court found that Yolanda's property was situated at the back of her father's property and held that there existed
an available space of about nineteen (19) meters long which could conveniently serve as a right of way between the
boundary line and the house of Yolanda's father; that the vacant space ended at the left back of Sotero's store which was
made of strong materials; that this explained why Yolanda requested a detour to the lot of Anastacia and cut an opening
of one (1) meter wide and five (5) meters long to serve as her right of way to the public highway. But notwithstanding its
factual observations, the trial court concluded, although erroneously, that Yolanda was not entitled to a right of way on
petitioner's property since a detour through it would not make the line straight and would not be the route shortest to the
public highway.

In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared that the proposed right of way of
Yolanda, which is one (1) meter wide and five (5) meters long at the extreme right of petitioner's property, will cause the
least prejudice and/or damage as compared to the suggested passage through the property of Yolanda's father which
would mean destroying the sari sari store made of strong materials. Absent any showing that these findings and
conclusion are devoid of factual support in the records, or are so glaringly erroneous, this Court accepts and adopts them.
As between a right of way that would demolish a store of strong materials to provide egress to a public highway, and
another right of way which although longer will only require an avocado tree to be cut down, the second alternative should
be preferred. After all, it is not the main function of this Court to analyze or weigh the evidence presented all over again
where the petition would necessarily invite calibration of the whole evidence considering primarily the credibility of
witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other, and the
probabilities of the situation. 18 In sum, this Court finds that the decision of respondent appellate court is thoroughly
backed up by law and the evidence.

WHEREFORE, no reversible error having been committed by respondent Court of Appeals, the petition is DENIED and
the decision subject of review is AFFIRMED. Costs against petitioner.

G.R. No. L-57641 October 23, 1982

ANTOLIN A. JARIOL, and PAULO S. RODRIGUEZ, In their capacities as Joint Executors of the Estate of
Humiliano Rodriguez, deceased, petitioners,
vs.
HON. COURT OF APPEALS, DOMINO JAGDON, in his Capacity as Administrator of the Estate of Timoteo
Rodriguez, et al, respondents.

MELENCIO-HERRERA, J.:

This is a Petition for Review on certiorari of the Decision of the Court of Appeals in its Case No. CA-G.R. No. 47020-R.
The Petition was initially denied but upon a second Motion for Reconsideration, the denial was reconsidered and it was
given due course.

We have found the facts to be as follows:

The deceased Quirino Rodriguez left four children: Humiliano, Timoteo, Jose, all surnamed Rodriguez, and Ines
Rodriguez de Pages.

On November 25, 1951, these heirs (Jose, then deceased, being represented by Ines Vda. de Rodriguez and his adult
children Abdulia, Dolores and Juanita), entered into an extrajudicial partition to divide a parcel of land covered by Transfer
Certificate of Title No. RT-345 (T-193) of the Registry of Deeds, Cebu City, in the name of the deceased. The deed was
signed by two witnesses and notarized by Atty. Bernardo B. Solotan. In this agreement, the property was divided into Lots
"A" to "G" inclusive. Lot "F" was adjudicated to Humiliano, and Lot "G" to Timoteo. Lot "G" has no egress to the public
roads.
22
On November 16, 1953, the original and copies of the Deed of Partition were allegedly burned when the Quirino
Rodriguez Building was razed by fire.

On May 22, 1956, Timoteo died and his son, Clemente Rodriguez, was appointed executor of the estate, but was later
replaced by Dominino Jagdon. They are two of the private respondents herein.

After Humiliano's death in 1961 or 1962, petitioners Antolin A. Jariol, his son-in- law, and Paulo S. Rodriguez, his son,
were appointed executors of his estate.

On June 27, 1960, the Deed of Extra-Judicial Partition, with annotations and additions on the left and right hand margins
on page 4 and below the notarial acknowledgment on page 5, was registered by Clemente Rodriguez, son of Timoteo, in
the Office of the Register of Deeds of Cebu. These annotations are reproduced in full hereunder:

On the left hand margin of Page 4:

That on the approved subdivision plan with reference to the existing actual private lane, Lots 802-B-2-B-2-C, 802-B-2-B-2-
D, 802-B-2-B-2B shall allot for the private lane three (3) meters each on their respective sides and thence six (6) meters
for lot 802-B-2-B-2-F following the existing private lane, more particularly described at the bottom of page 5 of this
document. (Emphasis supplied).

On the right hand margin of page 4:

That the contracting parties to the aforementioned extrajudicial partition of the estate of the deceased, Quirino Rodriguez,
hereby will and bind themselves together with all the heirs, successors, and assigns to an the provisions of the said
document.

Below the acknowledgment of page 5:

That the owners of the following lots bind themselves for their mutual benefit a perpetual easement of right of way
described as follows:

Lot No. 802-B-2-B-2-G — Three meters in width on the N. boundary.

Lot No. 802- B-2-B-2-D — Three meters in width on the S. W. boundary.
Lot No. 802-B-2-B-2-C — Three meters in width on the S. W. boundary.
Lot No. 802-B-2-B-2-B — Three meters in width on the S. W. boundary.
Lot No. 802-B-2-B-2-F — Six meters in width along the common boundary line of the said lots with the said boundary line
as the centerline. 1

It is said that

xxx xxx xxx

Of the seven (7) heirs who signed at the left hand margins of pages 1, 2, 3 and 5 and at the bottom of page 4, only five (5)
initials are found with the left hand margin insertion, with one "T.R. by C.L.R.", on the right hand margin insertion only four
(4) initials are found with one "T.R. by C.L.R.", with the insertion of the bottom of page 5, only five (5) initials are found
with one "T.R. by C.L.R.", and

No signatures or initials of the two witnesses are found with any of the insertions. 2

To be noted from the partition agreement is the fact that four heirs were to contribute for the easement of right-of-way
three (3) meters each, while Humiliano, to whom Lot "F" appertained, was to give six meters.

Upon the contention that they had discovered the annotations only in 1964, petitioners Antolin A. Jariol and Paulo S.
Rodriguez, as joint executors of Humiliano's estate, together with Ines Rodriguez de Pages, filed an action with the Court
of First Instance of Cebu on March 11, 1965 against respondents Dominino Jagdon as administrator of the estate of
Timoteo Rodriguez, Clemente Rodriguez, Dolores Rodriguez, and Ines Vda. de Rodriguez, seeking to declare the nullity
of the annotations and insertions for having been surreptitiously and maliciously added long after the execution of the
principal document, and the cancellation of the easements of right of way noted as encumbrances on the Certificates of
Title issued for the subdivided lots, particularly on "Lot F". It was alleged that the initials of Humiliano and Ines Rodriguez
23
de Pages affixed to the insertions were forged as found by a handwriting expert; that not all the parties to the document
had affixed their initials to the insertions; that had the annotations been made at the time of the execution of the
document, Timoteo, who was still alive, should have signed the annotations and not his son Clemente. The Complaint
was amended three times to include other heirs either as parties plaintiffs or parties defendants.

During the trial, petitioners presented the deposition of Ines Rodriguez de Pages, then 81 years old, to the effect that the
initials "I.R.P. " appearing in the insertions were not her own.

Defendants-respondents, on the other hand, sustained the genuineness and due execution of the annotations or additions
and presented their own handwriting expert. They averred that the agreement merely confirmed the existing right of way.

In its judgment rendered on August 22, 1968, the Trial Court concluded:

It is the conclusion of this Court therefore, that the initials of Ines Rodriguez de Pages and Humiliano Rodriguez were
forged and that Clemente Rodriguez, in initialing the said insertions or additions without any power of attorney from
Timoteo Rodriguez does not bind the latter. Hence, the alleged agreement creating the easement is of no force and legal
effect upon the heirs of Quirino Rodriguez. 3

and declared the alterations or annotations complained of illegal and unlawful and without any legal force and effect;
ordered the Register of Deeds of Cebu to cancel the easement of right of war noted as encumbrances on the title; and
finding that Clemente Rodriguez was responsible for the "falsification of the insertions" and the "forgery" of the initials of
Humiliano and Ines Rodriguez de Pages, required defendants therein to pay actual, moral and exemplary damages as
well as attorney's fees for having "abetted" the "wrondoing" of Clemente.

After defendants-respondents' Motion for New Trial on the ground that the deposition of Ines R. de Pages should not have
been admitted in evidence, was denied, they appealed to the Court of Appeals.

On October 15, 1980, the Court of Appealls 4 reversed the judgment appealed from and dismissed the Third Amended
Complaint as well as all counterclaims principally on the ground that the right-of-way involved, which was a pre-existing
one, even prior to the extra judicial partition, sprang not from any voluntary concession but from law.

Petitioners came to this Court on a Petition for Review on certiorari asserting that respondent Appellate Court erred in
skirting the issue on the genuineness and/or binding effect of the forged alterations and insertions on the Deed of
Extrajudicial Partition; and in holding that a legal easement of right-of-way automatically attaches to Lot "F" adjudicated to
Humiliano, as the servient estate, which was not an issue framed by the parties on appeal.

Petitioners take issue with the findings of respondent Court, which read in part:

Appellees also presented the deposition of Ines Rodriguez Pages, then aged 81, who denied the genuineness of her
initials to the questioned insertions. On the other hand, appellants presented, inter alia, Atty. Bernardo Solatan, the lawyer
who prepared and notarized the extrajudicial partition document; and Mrs. Amparo R. Casafranca, daughter of Humiliano
Rodriguez and sister-in-law of appellee Jariol. Atty. Solatan testified that the partition document was made under the
direction of Humiliano Rodriguez (tsn-Cavalida, Jan. 15, 1968, p. 237); that he prepared the insertions at the instance of
Humiliano Rodriguez (tsn-Cavalida, Jan. 15, 1968, pp. 240-242); and that the initials attributed to Humiliano Rodriguez
and Ines Rodriguez de Pages were authentic. Unrebutted was the testimony of Mrs. Casafranca that her father Humiliano
Rodriguez favored the maintaining of a road right of way (tsn-Javier, May 9, 1968, p.4), and that this easement existed
long before the execution of the extrajudicial partition (tsn-Javier, May 9, 1968, p. 6).<äre||anº•1àw> Appellee Jariol
confirmed that he knows of only one easement, that is, the one adjacent to his house (tsn-lyog, May 23, 1968, p. 35). We
can only conclude that the easement encumbrance inserted in the extra-judicial partition referred to the existing right-of-
way to which Humiliano Rodriguez was in favor of maintaining. 5

The Appellate Court then went on to state:

It cannot be denied that easements of right-of-way, being discontinuous, cannot be acquired by prescription. However, a
close perusal of the subdivision plan of Lot 802-B-2-B-2 (Exh. D) reveals that Lot 802-B-2-B-2-G with an area of 1422
square meters has no access to the public roads. Corner no. 1 of this lot is almost 80 meters from Juan Luna street and
about 73 meters from Colon Street, the latter through Lot No. 802-B-2-B-2-F. Under the partition agreement, Lot 802-B-2-
B-2- G appertained to Timoteo Rodriguez and his heirs. A legal easement of right-of- way can therefore be established in
favor of the heir to which this lot went. Section 652 of the New Civil Code reads: "Whenever a piece of land acquired by
sale, exchange or partition is surrounded by other estates of the vendor, exchanger, or co-owner, he shall be obliged to
24
grant a right-of-way without indemnity." Section 651 explains: "The 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." From the
foregoing discussions, it would be immaterial to delve into whether the insertions in the extrajudicial partition are illegal
and unauthorized. The right of the dominant estate to demand a right-of-way springs not from any voluntary concession
but from law. Appellees must provide the owners of the dominant estate (Lot 802-B-2-B-2-G in this case) egress to the
public road. Had the partition been the other way around, surely appellees would want a way out to the street. Justice and
equity demand that the status quo be maintained with regards to the easement of right-of-way. 6 (Emphasis supplied)

Upon the foregoing exposition, we find that there is no substantial justification for setting aside the aforequoted findings of
respondent Court. In the first place, it did not entirely disregard the matter of the questioned alterations and insertions. It
summarized the conflicting evidence thereon, as quoted hereinabove, observing that "unrebutted was the testimony of
Mrs. Casafranca that her father Humiliano Rodriguez favored the maintaining of a right-of-way (tsn. Javier, May 9, 1968,
p. 4)." Mrs. Amparo R. Casafranca, who testified of her own knowledge, is the sister- in-law and sister, respectively, of
petitioners. If Humiliano himself favored the right-of-way, petitioners, as his successors-in-interest, should be held bound
by it. Respondent Court added that the Notary Public, Atty. Bernardo Solotan, who authenticated the document, also
declared that the initials of Humiliano and Ines R. de Pages were authentic, and that the insertions were made at the
instance of Humiliano. We view those declarations as amounting to findings of fact made by an Appellate Court, which we
consider as binding on us.

And as far as Timoteo is concerned, although the Trial Court found that he did not initial the insertions, supra, there can
be no denying that he would be the last to object to the easement established for it also inured to the benefit of "Lot G".
which was allocated to him.

Secondly, the substantial question is whether or not "Lot G " is entitled to the easement of right of way. In point of fact, a
road right of way providing access to the public road from "Lot G" existed long before the execution of the extrajudicial
partition even during the lifetime of Quirino Rodriguez. The Deed of Partition merely sought to legalize and give stability to
the access road already existing. That was confirmed by the testimony of Mrs. Casafranca. That is also the position taken
by the other heirs who have been included as defendants respondents. As a matter of law, considering that "Lot G " has
no access to the public road, the easement is explicitly provided for in Article 652 of the Civil Code 7 , its width being
determined by the needs of the servient estate pursuant to Article 651 8 of the same law.

Thirdly, the justice of the situation rather than the technicalities of the controversy should govern herein. The questioned
insertions and annotations refer to an "existing actual private lane." The question of legality of those insertions is linked
with the need for its continued existence and the laws on easement cannot but have a definite bearing. The annotations
did not "create" a right-of-way, contrary to the opinion of the Trial Court. They merely confirmed are existing one.
Respondent Appellate Tribunal did not "by judicial fiat" establish a "legal easement of right- of- way" on Lot "F". It found
that it had been pre-existing and that under the circumstances, the laws on easement were applicable. A chapel exits in
the interior constructed by the deceased Quirino Rodriguez, who was also responsible for giving chapel-goers access
thereto from the street. 9 The right-of-way exists for the mutual benefit of most of the heirs of Quirino Rodriguez. As aptly
stated by respondent Court "justice and equity demand that the status quo be maintained with regards to the easement of
right of way."

With the conclusions arrived at, the Resolution, dated June 30, 1982, giving due course to this Petition must be set aside
and this Petition denied.

WHEREFORE, let this Petition for Review be, as it is, hereby denied for lack of merit.

Costs against petitioners.

SO ORDERED.

SO ORDERED

G.R. No. 129169 November 17, 1999

NATIONAL IRRIGATION ADMINISTRATION (NIA), petitioner,

vs.
HONORABLE COURT OF APPEALS (4th Division), CONSTRUCTION INDUSTRY ARBITRATION COMMISSION, and
HYDRO RESOURCES CONTRACTORS CORPORATION, respondents.
DAVIDE, JR., C.J.:
25
In this special civil action for certiorari under Rule 65 of the Rules of Court, the National Irrigation Administration (hereafter
NIA), seeks to annul and set aside the Resolutions 1 of the Court of Appeals in CA-GR. SP No. 37180 dated 28 June
1996 and 24 February 1997, which dismissed respectively NIA's petition for certiorari and prohibition against the
Construction Industry Arbitration Commission (hereafter CIAC), and the motion for reconsideration thereafter filed.

Records show that in a competitive bidding held by NIA in August 1978, Hydro Resources Contractors Corporation
(hereafter HYDRO) was awarded Contract MPI-C-2 for the construction of the main civil works of the Magat River Multi-
Purpose Project. The contract provided that HYDRO would be paid partly in Philippine pesos and partly in U.S. dollars.
HYDRO substantially completed the works under the contract in 1982 and final acceptance by NIA was made in 1984.
HYDRO thereafter determined that it still had an account receivable from NIA representing the dollar rate differential of the
price escalation for the contract. 2

After unsuccessfully pursuing its case with NIA, HYDRO, on 7 December 1994, filed with the CIAC a Request for
Adjudication of the aforesaid claim. HYDRO nominated six arbitrators for the arbitration panel, from among whom CIAC
appointed Engr. Lauro M. Cruz. On 6 January 1995, NIA filed its Answer wherein it questioned the jurisdiction of the CIAC
alleging lack of cause of action, laches and estoppel in view of HYDRO's alleged failure to avail of its right to submit the
dispute to arbitration within the prescribed period as provided in the contract. On the same date, NIA filed a Compliance
wherein it nominated six arbitrators, from among whom CIAC appointed Atty. Custodio O. Parlade, and made a
counterclaim for P1,000,000 as moral damages; at least P100,000 as exemplary damages; P100,000 as attorney's fees;
and the costs of the arbitration. 3

The two designated arbitrators appointed Certified Public Accountant Joven B. Joaquin as Chairman of the Arbitration
Panel. The parties were required to submit copies of the evidence they intended to present during the proceedings and
were provided the draft Terms of Reference. 4

At the preliminary conference, NIA through its counsel Atty. Joy C. Legaspi of the Office of the Government Corporate
Counsel, manifested that it could not admit the genuineness of HYDRO's evidence since NIA's records had already been
destroyed. NIA requested an opportunity to examine the originals of the documents which HYDRO agreed to provide. 5

After reaching an accord on the issues to be considered by the arbitration panel, the parties scheduled the dates of
hearings and of submission of simultaneous memoranda. 6

On 13 March 1995, NIA filed a Motion to Dismiss 7 alleging lack of jurisdiction over the disputes. NIA contended that there
was no agreement with HYDRO to submit the dispute to CIAC for arbitration considering that the construction contract
was executed in 1978 and the project completed in 1982, whereas the Construction Industry Arbitration Law creating
CIAC was signed only in 1985; and that while they have agreed to arbitration as a mode of settlement of disputes, they
could not have contemplated submission of their disputes to CIAC. NIA further argued that records show that it had not
voluntarily submitted itself to arbitration by CIAC citing TESCO Services, Inc. v. Hon. Abraham Vera, et al., 8 wherein it
was ruled:

CIAC did not acquire jurisdiction over the dispute arising from the sub-contract agreement between petitioner TESCO and
private respondent LAROSA. The records do not show that the parties agreed to submit the disputes to arbitration by the
CIAC . . . . While both parties in the sub-contract had agreed to submit the matter to arbitration, this was only between
themselves, no request having been made by both with the CIAC. Hence, as already stated, the CIAC, has no jurisdiction
over the dispute. . . . . Nowhere in the said article (sub-contract) does it mention the CIAC, much less, vest jurisdiction
with the CIAC.

On 11 April 1995, the arbitral body issued an order 9 which deferred the determination of the motion to dismiss and
resolved to proceed with the hearing of the case on the merits as the grounds cited by NIA did not seem to be
"indubitable." NIA filed a motion for reconsideration of the aforesaid Order. CIAC in denying the motion for reconsideration
ruled that it has jurisdiction over the HYDRO's claim over NIA pursuant to E.O 1008 and that the hearing should proceed
as scheduled. 10

On 26 May 1996, NIA filed with the Court of Appeals an original action of certiorari and prohibition with prayer for
restraining order and/or injunction, seeking to annul the Orders of the CIAC for having been issued without or in excess of
jurisdiction. In support of its petition NIA alleged that:

26
RESPONDENT CIAC HAS NO AUTHORITY OR JURIDICTION TO HEAR AND TRY THIS DISPUTE BETWEEN THE
HEREIN PARTIES AS E.O. NO. 1008 HAD NO RETROACTIVE EFFECT.

THE DISPUTE BETWEEN THE PARTIES SHOULD BE SETTLED IN ACCORDANCE WITH GC NO. 25, ART. 2046 OF
THE CIVIL CODE AND R.A. NO. 876 THE GOVERNING LAWS AT THE TIME CONTRACT WAS EXECUTED AND
TERMINATED.

E.O. NO. 1008 IS A SUBSTANTIVE LAW, NOT MERELY PROCEDURAL AS RULED BY THE CIAC.

AN INDORSEMENT OF THE AUDITOR GENERAL DECIDING A CONTROVERSY IS A DECISION BECAUSE ALL THE
ELEMENTS FOR JUDGMENT ARE THERE; THE CONTROVERSY, THE AUTHORITY TO DECIDE AND THE
DECISION. IF IT IS NOT APPEALED SEASONABLY, THE SAME BECOMES FINAL.

NIA HAS TIMELY RAISED THE ISSUE OF JURISDICTION. IT DID NOT WAIVE NOR IS IT ESTOPPED FROM
ASSAILING THE SAME.

THE LEGAL DOCTRINE THAT JURISDICTION IS DETERMINED BY THE STATUTE IN FORCE AT THE TIME OF THE
COMMENCEMENT OF THE ACTION DOES NOT ONLY APPLY TO THE INSTANT CASE. 11

The Court of Appeals, after finding that there was no grave abuse of discretion on the part of the CIAC in issuing the
aforesaid Orders, dismissed the petition in its Resolution dated 28 June 1996. NIA's motion for reconsideration of the said
decision was likewise denied by the Court of Appeals on 26 February 1997.

On 2 June 1997, NIA filed before us an original action for certiorari and prohibition with urgent prayer for temporary
restraining order and writ of preliminary injunction, praying for the annulment of the Resolutions of the Court of Appeals
dated 28 June 1996 and 24 February 1997. In the said special civil action, NIA merely reiterates the issues it raised
before the Court of Appeals. 12

We take judicial notice that on 10 June 1997, CIAC rendered a decision in the main case in favor of HYDRO. 13 NIA
assailed the said decision with the Court of Appeals. In view of the pendency of the present petitions before us the
appellate court issued a resolution dated 26 March 1998 holding in abeyance the resolution of the same until after the
instant petitions have been finally decided. 14

At the outset, we note that the petition suffers from a procedural defect that warrants its outright dismissal. The questioned
resolutions of the Court of Appeals have already become final and executory by reason of the failure of NIA to appeal
therefrom. Instead of filing this petition for certiorari under Rule 65 of the Rules of Court, NIA should have filed a timely
petition for review under Rule 45.

There is no doubt that the Court of Appeals has jurisdiction over the special civil action for certiorari under Rule 65 filed
before it by NIA. The original jurisdiction of the Court of Appeals over special civil actions for certiorari is vested upon it
under Section 9(1) of B.P. 129. This jurisdiction is concurrent with the Supreme Court 15 and with the Regional Trial
Court. 16

Thus, since the Court of Appeals had jurisdiction over the petition under Rule 65, any alleged errors committed by it in the
exercise of its jurisdiction would be errors of judgment which are reviewable by timely appeal and not by a special civil
action of certiorari. 17 If the aggrieved party fails to do so within the reglementary period, and the decision accordingly
becomes final and executory, he cannot avail himself of the writ of certiorari, his predicament being the effect of his
deliberate inaction. 18

27
The appeal from a final disposition of the Court of Appeals is a petition for review under Rule 45 and not a special civil
action under Rule 65 of the Rules of Court, now Rule 45 and Rule 65, respectively, of the 1997 Rules of Civil Procedure.
19 Rule 45 is clear that decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the
nature of the action or proceedings involved, may be appealed to this Court by filing a petition for review, which would be
but a continuation of the appellate process over the original case. 20 Under Rule 45 the reglementary period to appeal is
fifteen (15) days from notice of judgment or denial of motion for reconsideration. 21

In the instant case the Resolution of the Court of Appeals dated 24 February 1997 denying the motion for reconsideration
of its Resolution dated 28 June 1997 was received by NIA on 4 March 1997. Thus, it had until 19 March 1997 within which
to perfect its appeal. NIA did not appeal. What it did was to file an original action for certiorari before this Court, reiterating
the issues and arguments it raised before the Court of Appeals.

For the writ of certiorari under Rule 65 of the Rules of Court to issue, a petitioner must show that he has no plain, speedy
and adequate remedy in the ordinary course of law against its perceived grievance. 22 A remedy is considered "plain,
speedy and adequate" if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the
lower court or agency. 23 In this case, appeal was not only available but also a speedy and adequate remedy.

Obviously, NIA interposed the present special civil action of certiorari not because it is the speedy and adequate remedy
but to make up for the loss, through omission or oversight, of the right of ordinary appeal. It is elementary that the special
civil action of certiorari is not and cannot be a substitute for an appeal, where the latter remedy is available, as it was in
this case. A special civil action under Rule 65 of the Rules of Court will not be a cure for failure to timely file a petition for
review on certiorari under Rule 45 of the Rules of Court. 24 Rule 65 is an independent action that cannot be availed of as
a substitute for the lost remedy of an ordinary appeal, including that under Rule 45, 25 especially if such loss or lapse was
occasioned by one's own neglect or error in the choice of remedies. 26

For obvious reasons the rules forbid recourse to a special civil action for certiorari if appeal is available, as the remedies
of appeal and certiorari are mutually exclusive and not alternative or successive. 27 Although there are exceptions to the
rules, none is present in the case at bar. NIA failed to show circumstances that will justify a deviation from the general rule
as to make available a petition for certiorari in lieu of taking an appropriate appeal.

Based on the foregoing, the instant petition should be dismissed.

In any case, even if the issue of technicality is disregarded and recourse under Rule 65 is allowed, the same result would
be reached since a review of the questioned resolutions of the CIAC shows that it committed no grave abuse of discretion.

Contrary to the claim of NIA, the CIAC has jurisdiction over the controversy. Executive Order No. 1008, otherwise known
as the "Construction Industry Arbitration Law" which was promulgated on 4 February 1985, vests upon CIAC original and
exclusive jurisdiction over disputes arising from, or connected with contracts entered into by parties involved in
construction in the Philippines, whether the dispute arises before or after the completion of the contract, or after the
abandonment or breach thereof. The disputes may involve government or private contracts. For the Board to acquire
jurisdiction, the parties to a dispute must agree to submit the same to voluntary arbitration. 28

The complaint of HYDRO against NIA on the basis of the contract executed between them was filed on 7 December 1994,
during the effectivity of E.O. No. 1008. Hence, it is well within the jurisdiction of CIAC. The jurisdiction of a court is
determined by the law in force at the time of the commencement of the action. 29

NIA's argument that CIAC had no jurisdiction to arbitrate on contract which preceded its existence is untenable. E.O. 1008
is clear that the CIAC has jurisdiction over all disputes arising from or connected with construction contract whether the
dispute arises before or after the completion of the contract. Thus, the date the parties entered into a contract and the
date of completion of the same, even if these occurred before the constitution of the CIAC, did not automatically divest the
CIAC of jurisdiction as long as the dispute submitted for arbitration arose after the constitution of the CIAC. Stated
differently, the jurisdiction of CIAC is over the dispute, not the contract; and the instant dispute having arisen when CIAC
was already constituted, the arbitral board was actually exercising current, not retroactive, jurisdiction. As such, there is no
need to pass upon the issue of whether E.O. No. 1008 is a substantive or procedural statute.

NIA also contended that the CIAC did not acquire jurisdiction over the dispute since it was only HYDRO that requested for
arbitration. It asserts that to acquire jurisdiction over a case, as provided under E.O. 1008, the request for arbitration filed
with CIAC should be made by both parties, and hence the request by one party is not enough.

28
It is undisputed that the contracts between HYDRO and NIA contained an arbitration clause wherein they agreed to
submit to arbitration any dispute between them that may arise before or after the termination of the agreement.
Consequently, the claim of HYDRO having arisen from the contract is arbitrable. NIA's reliance with the ruling on the case
of Tesco Services Incorporated v. Vera, 30 is misplaced.

The 1988 CIAC Rules of Procedure which were applied by this Court in Tesco case had been duly amended by CIAC
Resolutions No. 2-91 and 3-93, Section 1 of Article III of which read as follows:

Submission to CIAC Jurisdiction — An arbitration clause in a construction contract or a submission to arbitration of a

construction contract or a submission to arbitration of a construction dispute shall be deemed an agreement to submit an
existing or future controversy to CIAC jurisdiction, notwithstanding the reference to a different arbitration institution or
arbitral body in such contract or submission. When a contract contains a clause for the submission of a future controversy
to arbitration, it is not necessary for the parties to enter into a submission agreement before the claimant may invoke the
jurisdiction of CIAC.

Under the present Rules of Procedure, for a particular construction contract to fall within the jurisdiction of CIAC, it is
merely required that the parties agree to submit the same to voluntary arbitration. Unlike in the original version of Section
1, as applied in the Tesco case, the law as it now stands does not provide that the parties should agree to submit disputes
arising from their agreement specifically to the CIAC for the latter to acquire jurisdiction over the same. Rather, it is plain
and clear that as long as the parties agree to submit to voluntary arbitration, regardless of what forum they may choose,
their agreement will fall within the jurisdiction of the CIAC, such that, even if they specifically choose another forum, the
parties will not be precluded from electing to submit their dispute before the CIAC because this right has been vested
upon each party by law, i.e., E.O. No. 1008. 31

Moreover, it is undeniable that NIA agreed to submit the dispute for arbitration to the CIAC. NIA through its counsel
actively participated in the arbitration proceedings by filing an answer with counterclaim, as well as its compliance wherein
it nominated arbitrators to the proposed panel, participating in the deliberations on, and the formulation of, the Terms of
Reference of the arbitration proceeding, and examining the documents submitted by HYDRO after NIA asked for the
originals of the said documents. 32

As to the defenses of laches and prescription, they are evidentiary in nature which could not be established by mere
allegations in the pleadings and must not be resolved in a motion to dismiss. Those issues must be resolved at the trial of
the case on the merits wherein both parties will be given ample opportunity to prove their respective claims and defenses.
33 Under the rule 34 the deferment of the resolution of the said issues was, thus, in order. An allegation of prescription
can effectively be used in a motion to dismiss only when the complaint on its face shows that indeed the action has
already prescribed. 35 In the instant case, the issue of prescription and laches cannot be resolved on the basis solely of
the complaint. It must, however, be pointed that under the new rules, 36 deferment of the resolution is no longer
permitted. The court may either grant the motion to dismiss, deny it, or order the amendment of the pleading.

WHEREFORE, the instant petition is DISMISSED for lack of merit. The Court of Appeals is hereby DIRECTED to proceed
with reasonable dispatch in the disposition of C.A. G.R. No. 44527 and include in the resolution thereof the issue of laches
and prescription.

SO ORDERED.
G.R. No. L-10372 December 24, 1915
DOMINGO LAO and ALBINA DE LOS SANTOS, applicants-appellants,
vs.
THE HEIRS OF LORENZA ALBURO, objectors-appellees.

TORRES, J.:

This appeal by bill of exceptions was taken from the judgment of August 17, 1914, in which the honorable judge of the
Court of Land Registration decreed that, after the description of the parcel of land No. 2 should have been amended in the
manner indicated, the parcels of land in the case at bar should be registered in the name of the applicants, Domingo Lao
and his wife Albina de los Santos. It was held in this decree that the wall, called a stone wall in the plan of the said parcel
No. 2, was a party wall between the said parcel and the property adjoining it on the north-west. Counsel for the applicants
excepted to this finding and moved for a new trial. His motion was overruled whereupon the applicants excepted and duly
filed their bill of exceptions, which was approved and transmitted to this court.

29
On May 8, 1914, counsel for the said husband and wife filed a written application in the Court of Land Registration for the
registration of four parcels of land, together with the buildings thereon, of which they claimed to be the absolute owners.
The first of said parcels, Lot No. 1, comprising a house and three other buildings known as accesorias, all of strong
materials, is situated in Calle Juan Luna, formerly Calle Jolo or Anloague of the district of Binondo, and has an area of
175.08 square meters; the second parcel, Lot No. 2, comprising a house of strong materials erected thereon, likewise
situated in Calle Juan Luna, formerly Calle Jolo or Anloague, Binondo, is 212.05 square meters in area; the third parcel of
land, Lot No. 3, located in Calle Elcano, San Nicolas, Binondo, and measures 596.06 square meters in area; and the
fourth parcel of land, Lot No. 2, containing two buildings of strong materials, one of them of three stories, situated in Calle
Elcano, San Nicolas, Binondo, 813.01 square meters in area. The street numbers of the two latter properties appear in the
said judgment, and their boundaries are given in both the said plan No. 1 and in their respective technical descriptions.

The application recites that the first of the four above-mentioned properties was appraised in the last assessment, the
land at P4,664 and the buildings at P4,000; the second parcel, the land at P5,492 and the buildings at P3,600; the third
parcel, the land at P6,329 and the buildings at P4,000; and the fourth parcel, the land at P8,529 and the buildings at
P22,500; and that the said properties are all unencumbered and no one has any right or share therein except the
applicants, who acquired them by purchase, the first parcel from Felix Zalvidea, by a public instrument of June 11, 1912;
the second parcel, from Clara Lichauco and her husband Catalino Arevalo, by a public instrument of September 12, 1912;
the third parcel, from Antonio Abraham Brimo, by a public instrument of March 28, 1911; and the fourth parcel, from
Marcela Lao, by a public instrument of April 17, 1914. The application recited the names of the tenants who occupy the
first three properties and states that the applicants occupy the fourth. The names and addresses of the owners or
proprietors of the adjoining properties are also given.

After due service of notice, counsel for the administrator of the estate of the deceased Lorenza Alburo filed in court a
written objection, alleging that in the part of the application relative to the second parcel of the plan No. 1, a stone wall
shown in that plan to be northeast of the said parcel had been improperly included; that this wall had belonged to the said
Lorenza Alburo, for it had existed since March 8, 1881; that the principal timbers of the building that had belonged to the
said deceased had rested on it for more than thirty-five years, and the latter's successors had been and were now in the
quiet, peaceable and uninterrupted possession of the said wall.

At the trial of the case both parties thereto introduced documentary and oral evidence, and the judge of the Court of Land
Registration made a personal inspection of the wall in question and of the respective properties of the applicants and the
objectors.

In the judgment appealed from it is held that the applicants, Domingo Lao and Albina de los Santos, conclusively and
satisfactorily proved that they were, and had been for about forty years, the lawful owners and possessors of the four
properties sought to be registered; wherefore the court decreed the registration thereof in their names, but ordered that
record be made in the decree that the wall marked on the plan of the parcel No. 2 as a stone wall was a party wall.

Hence the question to be decided relates solely to the matter of the said wall of the property designated as parcel No. 2 —
the subject matter of the objection filed by the administrator of the estate of the deceased Lorenza Alburo, owner of the
property adjoining that designated as parcel No. 2 — inasmuch as the administrator alleges in his objection that the said
stone wall forms a part of the property that belonged to the said deceased while the applicants claim that this wall is
theirs, being a part of the strong-minded material house constructed on the said parcel of land, Lot No. 2 according to the
plan, Exhibit A.

Article 572 of the Civil Code provides that the easement of party walls is presumed, unless there is a title or exterior mark
or proof to the contrary in the dividing walls of adjoining buildings up to the common point of elevation. As the court held
judgment appealed from that the wall which lies between the properties of the applicant and the objectors was a party
wall, and as the applicants appealed from this ruling, it devolves upon us to decide whether it is in fact a party wall, as
counsel for the administrator of the estate of the deceased Alburo or for her heirs finally admitted that it was in assenting
to that decision, although he averred in his written objection that it was the exclusive property of the objectors; or whether,
on the contrary, this wall is a part of property marked No. 2 on the plan Exhibit A, as the applicants claims.

Article 573 of the Civil Code also declares that it shall be understood that there are exterior signs which conflict with the
easement of party wall, when, among other circumstances, the entire wall is built on one of the lots and not on the line
dividing the two adjoining parcels; when the dividing wall, being constructed of stone and cement, has stone projecting at
intervals from the surface on one side only and not on the other; and when it supports joists, beams, floors, and the roof
timbers of one of the houses but not of the adjoining building.1awphil.net

30
The record shows it to have been duly proven that the enclosing wall of Lot No. 2 of the plan Exhibit A, belonging to the
applicants, is much higher than the adjoining building of the objectors; that along the top of the said wall there is a gutter
which catches the rain water from the eaves of the roof of the applicants' building and carries it thence to Calle Juan Luna
through an iron pipe fastened to the said wall; that one-half of the top of the said wall is covered by the roof of the
applicants' building; that the supports of the said wall project toward the side of the applicants' land and that none of the
buttresses are on the side of the objectors' lot; that the stones of the wall in dispute are bound or inset in the rear
enclosing wall of the applicants' property in such wise that the two walls that inclose the lot form but a single construction,
the exterior signs of which show that the wall in question is not a party wall, but that it forms a part of the applicant's
building and belongs to them.

Besides the signs just referred to, the evidence also shows that on the objectors' land and flanking the disputed wall there
is another and lower wall which has no connection with the one in question. Cayetano Arguelles, a master builder, who
climbed to the top of the wall in question and examined it, testified that the aforesaid drain caught the rain water from the
eaves of the applicants' roof, and that from the outside the division or space between the applicants' wall and the wall on
the objectors' land could be seen; that the lower part of this latter wall had two arch like hollows; that according to the
testimony of the objector, Ireneo Mendoza, the latter wall was that of an old building that had belonged to the said
deceased and was destroyed by an earthquake; and that in the rear of the objectors' land were the ruins of a wall which
had also flanked the wall in dispute, and these ruins, according to the said witness Mendoza were what was left of the wall
of a latrine formerly existing there.

These exterior signs contrary to the existence of a party-wall easement cannot be offset by the circumstance that the
dispute wall projects into Calle Juan Luna 74 centimeters farther than the applicants' building, and neither can the fact that
the face of this projecting wall is on the same street line as the objectors' building, for the reason that, in view of the said
signs contrary to the existence of the easement of party wall, the projection of the wall does not prove that it was a party
wall belonging in common to the applicants and the objectors and that the latter shared in the ownership thereof.

The objectors have not proved that a part or one-half of the wall in litigation was erected on the land that belonged to the
deceased Lorenza Alburo. The fact that the owners of the objectors' property may have surreptitiously inserted some of
the timbers or joists of their building in the wall belonging to the applicants is not enough to convert this latter into a party
wall, when there are so many exterior signs to indicate the exclusive ownership of the wall and to conflict with the
existence of the easement that the objectors endeavor to establish. The wall in litigation is fully proven by the record to
belong exclusively to the applicants.

All of the applicants' properties, including the wall in question, should therefore be registered.itc-a1f

For the foregoing reasons the judgment appealed from is affirmed, but the decree of registration of the property
designated as Lot No. 2 shall include the disputed wall as belonging exclusively to the applicants, and that part of said
wall is a party wall is hereby reversed; without special finding as to costs. So ordered.

G.R. No. 911 March 12, 1903

MAXIMO CORTES, plaintiff-appellant,
vs.
JOSE PALANCA YU-TIBO, defendant-appellant.

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

31
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
32
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,

33
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 the partidas, 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 the partidas, 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
34
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.

G.R. No. L-3598 July 24, 1908

MIGUEL FABIE Y GUTIERREZ, petitioner-appellee,
vs.
JULITA LICHAUCO, AND THE CHILDREN OF FRANCISCO L. ROXAS, respondents-appellants.

MAPA, J.:

This is an appeal from a judgment of the Court of Land Registration. The petitioner applied for the registration of his
property, situated at 22 Calle San Jacinto, district of Binondo, Manila, free from all incumbrances, with the exception of an
easement of right of way which he recognizes as existing in favor of the estates of the respondents Lichauco and Hijos de
Roxas, which adjoin the property of the petitioner on the right and left of its entrance, respectively. In addition to the said
easement of rigth of way the respondents claim that of light, view, and drainage in favor of their respective properties; said
claim was modified in part during the course of the litigation as far as it referred to Julita Lichauco, who finally reduced her
opposition (fol. 138) to the easement of right of way and of light and view.

In the judgment appealed from it is held that the easement of right of way exits in favor of the respective properties of
Julita Lichauco and Hijos de Roxas, and the latter are further entitled to the easement of drainage. The claim of both
respondents as to other easements was dismissed.

(a) Opposition made by Julita Lichauco. This opponent invokes as the only legal foundation for her claim the provisions of
article 541 of the Civil Code. The language of said provisions is as follows:

The existence of an apparent sign of an easement between of two estates established by the owner of both shall be
considered should one of them be alienated, as a title, in order that the easement may continue actively and passively,
unless, at the time of the division of the ownership of both estates, the contrary should be expressed in the instrument of
alienation of either of them or if said sign is removed before the execution of the instrument.
35
It is alleged by Lichauco, as a material fact for applying the above legal provision, that her property, as well as that of the
petitioner, came from Juan Bautista Santa Coloma, the original owner of both estates, who, at the time of constructing
them, establish upon the latter estate, not only an easement of right of way, which the petitioner admits, but also the
easement of light and view which he claims; and that when both properties were alienated that of petitioner on the 28th of
November, 1848, and that of the respondents (Julita Lichauco) on the 31st of October of the same year, the apparents
sign of the existence of said easement was not removed, nor was it expressed in the instrument of the alienation of the
estates that such easement should be abolished.

The apparent sign of the easements claimed in this case is made to consists of a gallery with windows through which light
is admitted. In her written opposition Lichauco states that the said gallery is supported on columns erected on the ground
belonging to the petitioner, and on the first page of her brief submitted to this court she again states that the balcony of
her building is supported by uprights erected on land owned by the petitioner.

The parties to the suit having admitted the actual existence of the aforesaid gallery, the question now to be decided is
whether or not it existed when the ownership of the two estates of Juan Bautista Santa Coloma was divided by the
alienation of the one which now belongs to the respondent (Lichauco) and which was the first sold on October 31, 1848.

The instrument of sale (fol. 78) presented by said respondents contains a description of said house such as it was at that
time and after setting forth the boundaries thereof, state that the house is built of stone and mortar, and that it is erected
upon the lot of the owner, and has a frontage of twenty and one fourth varas and three and a half inches, with a depth of
thirty one and one fourth varas. Converting the varas into meters and disregarding the centimeters, it results that said
house had a frontage of 16 meters, equivalent to that twenty and one fourth varas and three and a half inches stated in
the instrument when it was alienated for the first time in October, 1848. Twenty years thereafter — that is, on the 13th of
September, 1869 — the house was surveyed and appraised by Achitect Luciano Oliver at the request of the person who
then owned it, and in the certificate issued by the said architect, (fol. 94) it is set forth that the house measures 16 meters
on the front facing Calle San Jacinto which confirms and corroborates the measurement stated in the aforesaid
instrument. Now then, according to the plan on folio 137, Exhibit I of the respondent (Lichauco), the house was now a
frontage of 18 meters and 60 centimeters, of which 16 meters and 60 centimeters correspond to the main part of the
same, and 1 meter and 90 centimeters to the gallery in question. It results, therefore, that at the present day, the house
has nearly 2 meters more frontage than when it was alienated by Santa Coloma, the original owner thereof, or rather by
the executors of his estate on the 31st of October, 1848.

According to this it is evident that the frontline of the house was increased by about 2 meters after the same was sold by
Santa Coloma and it also seems clear to us that it is the gallery mentioned above which constitutes the increase, both
because it measures 1 meter and 90 centimeters, which, with a difference of a few centimeters, exactly represents such
excess, and because it has neither been alleged nor claimed by the said respondent, that the rest which froms the main
part of the house has suffered and alteration in its frontage since the year 1848.

There is furthermore another detail in support of said conclusion. As stated by the respondent, the gallery is supported by
columns erected on the lot of the petitioner, so that it is not merely a body projecting over the said lot without materially
resting thereon but a construction erect and having foundations in the lot of the petitioner inasmuch as the columns that
support the said gallery are planted therein. Therefore, at the present day the house is erected partly on the land
belonging to the owner and partly, the gallery, over a lot belonging to another; that is, over that of the petitioner. When it
was sold in October, 1848, no portion of the house occupied the lot last mentioned, but the entire building was erected
over a lot belonging to the owner as set forth in the instrument of sale.

To the foregoing considerations the following may be added in conclusion: In view of the fact that the two buildings —
namely, that of the petitioner and that of the respondent — originally belonged to the same owner, and on the supposition
that the gallery did already exist and that as stated, it is supported on columns erected in the lot now owned by the
petitioner, it is not an easy matter to explain how it was that when the ownership of the two properties was separated the
house of the respondent, of which the said gallery forms a part, was sold to one person while the lot over which the said
gallery is erected or in which its columns are imbedded was sold to a different person. It would be a logical and natural
thing to suppose that in the sale of the gallery the land occupied by the same would have been included in order to avoid
the division of the ownership of the ground and the superficies, that it is, the lot and that which is erected upon it. The
necessity for such division does not appear nor can any reasonable justification therefore be discovered in the present
case.

On the other hand, in none of the numerous papers presented by the respondent is their any mentioned made of the
gallery in question, notwithstanding the fact that in some of them the house of the respondent (Lichauco) is minutely
36
described and it does not seem that this is due to mere carelessness or inadvertence, or that it was considered
unnecessary to mention such gallery, inasmuch as deliberate, careful, and repeated mention is made of the other gallery
on the side of the house facing the street, as may be seen from several of the other documents above alluded to, among
which are the certificate issued by architect Luciano Oliver, on September 13, 1869, (fol. 94) the instrument of sale
executed in favor of Manuel Gonzalez Junquito (fol. 104), and the mortgage deed of the same date in favor of the Obras
Pias (fol. 116). In each of the said documents the statement is made that the house has a corridor supported on columns
on Calle San Jacinto, while nothing is said, even incidentally, regarding the other corridor or gallery that now exists over
the lot of the petitioner. In our opinion there is no reason why in the description of the house has made by various persons
at different times, mentions should always have been made of only one of the galleries, the other been entirely ignored, if
both had really existed on the respective dates of the documents above referred to.

And it is useless to say, as argued by the respondent in her brief, that Architect Oliver's certificate, on which the
description made in the subsequent documents was taken, contained but a superficial description of the property without
details of its four sides. For said reason she states that the fact that no mention is made of the balcony or gallery in
question is of no importance, as the said certificate deals with the value of the property only, it being well known that such
a work is performed taking into account all the details and circumstances which may increase or decrease the value of the
same. Hence, the respondents goes on to sale, that mention was made, by said architect of the veranda facing the street
for the purpose of distinguishing between the one built on private land and the one which built over land belonging to the
city. For the very same reason she should have mentioned also the veranda built over the lot of the petitioner, if it had
been in existence specially has the value erected on land belonging to the owner is not the same as that which is
constructed on land owned by another person. The omission of this detail in such a document wherein in order to omit
nothing mention is even made of a well and stable both of which are unimportant portions of a building; such an omission,
we say, added to the reasons given above, induces us to come to the conclusion, as a result of the documentary evidence
adduced at the trial, that the gallery in question did not exist at the time when the house of the respondent was alienated
by its original owner, Santa Coloma, in October, 1848.

This conclusion is not weakened by the expert testimony offered by the respondent, the only testimony which she
introduced aside from the documentary evidence already mentioned. As the judgment appealed from properly states,
even if the forty or fifty years of existence of the house referred to, according to the unanimous reckoning of the experts
offered by said party is accepted, yet, we do not reach the year 1848, more than fifty-seven years back, when the
separation of the ownership of said house and that of the petitioner took place; such date constitutes the essential and
culminating point of the question. Moreover, it does not appear that said experts, who, among, other things, base their
opinion on the conditions of the building and its materials, have made a careful and sufficient examination and survey of
the latter. This is evidenced by the fact that one of them, Enrique Lafuente, states, on folio 146, that the columns which
support the gallery facing the street are built of stone, and that those of the other gallery over the lot of petitioner are of
wood; while according to another, Ramon Herrera Davilla, (fol. 152) both sets of columns are built of stone, and the third,
Jose Perez Siguenza (fol. 157), affirms that they are all about of wood, those facing the street as well as those embedded
in the land of the petitioner.

Furthermore, all the experts discuss and reason, and render their opinion as if the house was in the same condition as
when sold by Santa Coloma in 1848, when it seems certain and unquestionable that long after the said year it underwent,
or must have undergone, very important repairs of an essential nature. This is shown by the letter written by Manuel
Gonzalez Junquito, who owned it the time, to his attorney in fact under date if March 25, 1889, and was incorporated in
the instrument of sale executed by said attorney in fact of the owner in favor of the respondent. In said letter Junquito
states that the house was converted into a heap of ruins, and that (undoubtedly for the said reason) during the three years
it had not yielded him a single cent; for this reason he prayed his said attorney to see the way to sell in by all means at the
best price obtainable ... it was thus that the said house in which, as stated by Junquito on the same letter, had cost him
P15,000 was sold to the respondent for only eight thousand. If in 1889 the house was a heap of ruins, it seems to us to
hazardous to certify solely in view of its present condition, after under going repairs or having been practically rebuilt, the
real condition in which it was in 1848 — that is, forty years before it became ruined — specially seems, as the petitioners
expert properly states, in the repair or rebuilding of the property old or used materials may have been employed which
would give it the appearance of being older than it actual use.

The respondent states in her brief, as though intending to prove the great antiquity of the gallery in question, that,
notwithstanding the fact that the petitioner acquired his property before she acquired the adjoining building, he has been
able to testify that the said gallery was built by Junita Lichauco or by her predecessor after he had purchased his property,
nor has it been proven that since that time or at any time previous thereto there had been any disagreement between the
owners of the two properties of account of the gallery in question. Such allegation absolutely lacks foundation, (1)
because it is not true that the petitioner acquired his property prior the time when Junita Lichauco acquired hers, but
entirely on the contrary seems the petitioner purchased his property on the 9th of May, 1894, and the respondent acquired
37
hers on the 25th of October, 1889, that is, five years previously; and (2) because the burden is not on the petitioner to
prove on what time the gallery in controversy was constructed inasmuch as he limits himself to sustaining and defending
the freedom of his property, denying the easement of light and view of the respondent pretends to impose over it. It is a
settled doctrine of law that a property is assumed to be free from all incumbrance unless the contrary is proved.
(Decisions of the Supreme Court of Spain of April 7, 1864, and December 13, 1865.) The respondent who claims the said
easement, basing her claim on the provision of article 541 of the Civil Code, is obliged to prove the aforementioned
gallery, in which the apparent sign of the easement is made to consist in the present case, existed at the time the
ownership of her property and that of the petitioner were separated, in October, 1848. And inasmuch as this issue has not
been proved, the claim of the respondents as to the easements of the light and view which the petitioner does not admit,
must of necessity be dismissed.

(b) Opposition of heirs of Francisco L. Roxas. The real terms of this opposition do not appear well defined. As the Court of
Land Registration says in the judgment appeal from, when this party appeared at the trial stated (fol. 71) that it had no
opposition to offer and only desired that the matter of the easement of right of way, acknowledged by the petitioner, be
clearly established, and that the other rights of easement which their property holds over the former be respected, not
specifying, however, neither at the time or during the course of the proceedings as to which of said easements they
referred when appealing. Hence the question raised by these respondents do not appear as clearly determined.

In the absence of due specification of the said points, and inferring in only from the language of the agreement submitted
to the parties to the suit, the Court of Land Registration assumed that beyond the acknowledged easement of the right of
way, the respondents claimed those of light, view, and drainage, and on such supposition entered judgment in connection
with said easements only. Upon moving for a new hearing the respondents alleged as a foundation therefore, as stated in
the overruling thereof (p. 9 of the bill of exceptions), that the easement with reference to balcony had not been
acknowledged, and now in setting forth their injuries before this court they speak to the eaves ...

Admitting, the sake of argument, that all of the above questions were duly set up and discussed in the court below, the
fact is that in the judgment appealed from no other easements than those with reference to right of way and drainage from
the roof have been allowed in favor of the property of the respondents; therefore, the easements of light, view, and
balconies remain in dispute in the present instance. The easement with reference to eaves mentioned also in the brief of
the respondents should, in our opinion, be discarded inasmuch as it is included in this case in the easements of drainage
from the roof acknowledged in the judgment appealed from. (p. 7 of the bill of exceptions).

The Court of Land Registration in order to dismiss the opposition with reference to the easement of light and view bases
its decision on the fact that, the same being negative, according to article 533 of the Civil Code, because the owner of the
servient estate is prohibited to do something which he could lawfully do if the easement did not exist, that time of
possession for prescription (and it is a matter of prescription for the reason that respondents hold no title) should begin to
run, not from the date of the existence of the windows or balconies, but from the day when the owner of the dominant
estate, by means of a formal act, might have prohibited the owner of the servient estate to do something which he could
properly execute if the easement did not exist; this was never carried out by the opponents or by their principals as agreed
to by the parties at the hearing.

In rebuttal of this portion of the judgment the respondents state in their brief as follows:

We agree with the trial court that as a general rule the easement with reference to view is a negative one ...; but we
understand that there are cases in which the easements is meant is positive because it imposes on the owner of the
servient estate the obligation to allow the owner of the dominant estate to do on the property of the former something
which the latter could not lawfully do if the easement did not exist, ... such as happens in the present case in which the
windows have a balcony projecting over the lot of the petitioner. In the case of bar there exists the positive fact of windows
with projecting balconies opening over the land of the servient estate which is not a right inherent to the dominion of the
owner of the dominant estate, but a real invasion of the right of another, a positive act which limits the dominion of the
owner of the servient estate which, constituting easement, imposes on him the obligation to permit with balconies
projecting over his estate.

According to this no question is raised by the respondents as to the legal nature of the easement of view (in their brief the
easement of light is ignored) which they acknowledge for the reason that, in general, it is a negative one although in their
opinion there are exceptions where it acquires the nature of a positive easement, among them, when as in the present
case, view is obtained by means of windows with balconies projecting over the adjoining estate. On page 4 of their brief
they state that the latter facts was agreed to by the parties, which is tacitly contradicted by the petitioner when denying, on
page 14 of his brief, that the word balconies was used in the agreement as synonymous with projecting windows and

38
differing from windows, for although, according to the said agreement, they overlook the lot of the petitioner, they are not,
however, over the same, nor is the contrary claimed in connection therewith by the representative of the respondents.

In reference to the above question the said agreement of facts reads as follows:

(1) That house No. 114, Calle San Jacinto, district of Binondo, this city, owned by the children of Francisco L. Roxas,
adjoining the property of the petitioner, underwent alteration in the early part of the year 1882, and ever since that time it
exists as it appears now with windows and views overlooking the lot of the petitioner, with balconies and eaves from which
rainfall drops on the aforesaid lot.

It seems evident under the terms of this agreement, that the house of the respondents has balconies, it being immaterial
for our point of view that the word balconies be taken as synonymous with widows or projections, since whether it be the
one or the other the truth is that the agreement does not state that such balconies are over the lot of the petitioner or
overlooking over it, as claimed by the respondents. Neither would this follow from the mere fact that the said balconies jut
out, because the projecting parts of a building may be constructed, and as a matter of fact they are generally constructed,
over the area of their own ground without invading the limits of the adjoining length. What actually falls over the estate of
the petitioner according to the agreement is the water dropping from the projecting eaves of the respondents' house,
which is precisely the fact that has originated the easement of drainage from the roof acknowledged in favor of said
house; projecting eaves, thus the agreement reads, from which part of each water falls on said lot. Notwithstanding the
fact that word eaves, in the language of the agreement, is preceded by the word balconies, upon both being united by the
copulative conjunction and, it becomes evident that words in italics do not refer nor could they refer to the balconies for
the simple reason that their object is not to shed the water, a thing which, on the contrary, is done by the eaves.

And that it is the water and not the balconies of the house of the respondents which falls over or overlooks the lot of the
petitioner, is further evidenced by the language of the other clauses of the agreement in which the ideas are expressed
with precision, from which it may be seen that the proposition over is always in relation to the fall of the water and not to
the balconies. Thus, for example, clause 2 reads "that it does not appear if the construction of said windows, balconies,
and projecting eaves, as well as that part of the water from the roof of the said house, fall on the lot now owned by Don
Miguel Fabie ...." work that may obstruct the light, remove the windows or balconies and projecting eaves of the said
house which now belongs to the children of Francisco L. Roxas, or prevent a portion of the water from the roof of the
same from falling on the lot of Miguel Fabie..., neither has their been on the part of the said Fabie... any act to obstruct
said light or windows, preventing the continuance of the balconies and projecting eaves, or that part of the water from the
roof of the house falling ... on his lot."

Therefore, it does not appear from the agreement which is the only evidence we have before us, no other having been
offered at the hearing, the respondents has balconies over the land of the petitioner; and as it is, since it has been
positively shown that the said balconies exceed the limit of the lot owned by the former, nor less that they invade the
atmospheric area of the lot belonging to the latter, it follows that, even in accordance with the theory maintained by the
respondents with which on account of its lack of basis, we consider it unnecessary to deal herein as to its other aspect,
the easement of view, which might result in such case from the existence of the balconies alluded to, would be negative
and not a positive one, because the erection of the same would not constitute, according to their own statement, an
invasion of the right of another, but the lawful exercise of the right inherent to the dominion of the respondents to construct
within their own lot. And as said easement is negative, it cannot have prescribed in favor of the property of the
respondents in the absence of any act of opposition, according to the agreement, by which they or their principals would
have prohibited the petitioner or his principals to do any work which obstruct the balconies in question, inasmuch as said
act of opposition is what constitutes the necessary and indispensable point of departure for computing the time required
by law for the prescription of negative easements (Art. 538, Civil Code).

After the foregoing it is not necessary to say anything further to show the impropriety of the claim of the respondents in
connection with the other easement of balconies (projiciendi). They claim this easement on the supposition that the
balconies of the house are or look over the lot of the petitioner; therefore, considering that this fact has not been proven
as shown therefor, said pretension fails and cannot prosper in any way. It is unnecessary to discuss the questions of law
to which said fact might give rise had it been duly proven at the hearing.

For the reason above set forth, the judgment appealed from is affirmed in all its parts with the costs of this instance
against the appellants. So ordered.

G.R. L-No. 2085 August 10, 1909

TIBURCIO SAENZ, plaintiff-appellant,
39
 vs.
FIGUERAS HERMANOS, defendant-appellee.

JOHNSON, J.:

It appears from the record that the plaintiff and the defendant own adjoining lots within the municipality of Iloilo; that the
defendant had constructed or was constructing a house of strong materials upon its lot; that the line of the said house on
the side toward the lot belonging to the plaintiff was less than two meters from dividing line of the two lots; that the said
house was of two stories; that on the side of the house toward the lot of the plaintiff, the defendant in the first story had
placed three windows and in the second story had placed five windows, each looking directly upon the lot of the plaintiff;
and that the defendant had not obtained the permission of the plaintiff to place the said windows and balconies in the
manner above indicated.

The defendant filed a general and a special denial. In its special denial the defendant alleged that its house was being
constructed in accordance with the law and customs of the place.

After the hearing the evidence adduced during the trial of said cause, the lower court made the following findings of fact:

The plaintiff's lot is now vacant but he intends to build a house thereon for business purposes, and with that end in view
has already deposited some lumber in said lot. The defendants have constructed a two-story house on their lot, using the
ground floor for stores, and the upper floor as a dwelling. They have erected said house at a distance of 71 centimeters
from the dividing line at the front part, and at a distance of 70 centimeters at the rear. The house of the defendants is
being put to the use for which it was built. The defendants have opened three windows on the ground floor of their house,
in the part that overlooks the lot of the plaintiff, each window being 1 meter and 20 centimeters wide and 2 meters high; on
the upper floor they have opened 5 windows, each 2 meters and 11 centimeters high and 1 meter and 60 centimeters
wide; they have also constructed a balcony at the front part of the house above the ground floor, opening directly upon the
lot of the plaintiff, and another balcony at the rear part of the house, which up to the present time opens directly upon the
plaintiff's lot, although the defendants state that, according to the plan, said part is to be closed with boards. All of said
windows are required for the proper lighting and ventilation of said house, and for the circulation of air therein. The house
of the defendants is 23 meters long and built almost parallel to the dividing line between the plaintiff's lot and that of the
defendants. All of said windows and balconies are at a distance of less than one meter from the dividing line of the
plaintiff's lot and that of the defendants, and are looking directly over the same.

The plaintiff claims that, under articles 581 and 582 of the Civil Code, the defendant is prohibited from constructing his
house and opening the windows and balconies looking directly upon his property in the manner above described, and
prays that the court issue an order directing the defendant to close said windows and that the said defendant be
prohibited perpetually from constructing openings in its house except in conformity with said articles of the Civil Code.

The lower court, after a full consideration of the evidence adduced during the trial of the cause and after making the above
findings of fact, concluded his sentence in the following language:

In view of the circumstances mentioned above, and although I find that the windows of the house come within the
prohibition contained in article 582 of the Civil Code, I am of the opinion that the plaintiff is not entitled to the judgment
asked for, or for any other judgment in his favor. Therefore, it is ordered that judgment be entered in favor of the
defendant for the recovery of the costs herein. — (Signed) Henry C. Bates, judge of the Ninth Judicial District.

From this sentence the plaintiff appealed.

No motion was made for a new trial in the court below. The plaintiff excepted only to the judgment of the lower court,
basing his objection upon the ground that the sentence of the lower court was contrary to the provisions of said article
582, and in this court insists that he has a right under said provisions of the Civil Code to have said windows closed and to
have the defendant prohibited from making openings in the side of the house overlooking his yard except those openings
provided for under said article.

Article 581 of the Civil Code is as follows:

ART. 581. The owner of a wall which is not a party wall, adjoining another's estate, may make in it windows or openings to
admit light, at the height of the ceiling joists or immediately under the ceiling, of the dimensions of thirty centimeters
square, and, in any case, with an iron grate embedded in the wall and a wire screen.
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However, the owner of the house or estate adjoining the wall in which the openings are made may close them, if he
acquires the part ownership of the wall and should there be no agreement to the contrary.

He may also obstruct them by building on his land or raising a wall adjacent to that having such opening or window.

Article 582 of the Civil Code provides as follows:

ART. 582. Windows with direct views, or balconies or any similar openings projecting over the estate of the neighbor, can
not be made if there is not a distance of, at least, two meters between the wall in which they are built and said estate.

Neither can side nor oblique views be opened over said property, unless there is a distance of sixty centimeters.

The foregoing provisions of the Civil Code enumerate the conditions under which an adjoining lot owner may enjoy the
easement of light and view. These provisions are positive and persons attempting to exercise easement of light and view
upon property of adjoining landowners are governed by its provisions. Said article 582 absolutely prohibits the
construction of windows with direct views, or balconies or any similar openings projecting over adjoining property, unless
there is a distance of at least 2 meters between the wall in which they are built and the adjoining property. The evidence
adduced during the trial in the court below was not brought here. Therefore, we are governed as to the facts by the
findings of the lower court. The lower court found that the distance between the wall of the house of the defendant and the
dividing line between the two lots was only 71 centimeters. The defendant, therefore, has violated the provisions of said
article 582 by building in his house nearer the line of the property of the plaintiff than a distance of 2 meters.

Said article 581 provides the character of windows or openings in a wall adjoining the property of another when such wall
is constructed nearer the dividing line of the two properties than 2 meters. In the present case the defendant constructed
his house so that the wall looking upon the property of the plaintiff was less than 2 meters from the dividing line. He can,
therefore, only construct such windows as are provided for in said article 581.

The lower court bases his conclusions largely upon the fact that the plaintiff had stood by and permitted the defendant to
construct, or partially construct, his house without having made any objections, as well as the further fact that the plaintiff
had received no damages whatever except purely sentimental damages. The first ground would seem to imply that the
lower court was of the opinion that the plaintiff was estopped from insisting upon his rights under the law, he having
permitted the defendant to partially construct the house in the manner above described. There is nothing in the decision of
the lower court which shows that the plaintiff at any time before the commencement of the present action knew that the
house of the defendant was being constructed in violation of the provisions of said above-quoted articles. It was the duty
of the defendant to construct his house in accordance with the provisions of the law. The plaintiff was not obliged to stand
by for the purpose of seeing that the defendant had not violated the law. There are many cases where the doctrine of
estopped may be invoked against one who claims a right where he has stood by and either expressly or tacitly given his
consent to a violation of his right by another. This doctrine, however, can not be invoked where the law imposes an
express duty upon the other person and prohibits him from the exercise of certain acts in a certain way. The defendant
only can blame himself for not constructing his house in the manner provided for by law under the facts in the present
case. (See decision of the supreme court of Spain, June 6, 1892; 4 Manresa, 734, 735, 736-739; 9 Alcubilla, 541.)

Under all of the facts and the law presented in the present case, we are of the opinion, and so hold, that the defendant is
not entitled to the easement of light and view which the windows and openings, which he was made in the house in
question, give him, and, because of the fact that he has constructed his houses nearer than 2 meters to the dividing line
between his property and the property of the plaintiff, he is only entitled to the easement of light and view provided for in
said article 581 above quoted. Therefore, let a judgment be entered reversing the judgment of the lower court with costs,
and directing the defendants, within a period of thirty days from the receipt of the notice of this decision, to close the said
openings and windows, in the said house, looking directly upon the property of the plaintiff. So ordered.

G.R. No. L-20786 October 30, 1965

IN RE: PETITION FOR CANCELLATION OF CONDITION ANNOTATED ON TRANSFER CERTIFICATE OF TITLE No.
54417, QUEZON CITY, DRA. RAFAELA V. TRIAS, married to MANUEL SIA RAMOS, petitioner-appellee,
vs.
GREGORIO ARANETA, INC. oppositor-appellant.

BENGZON, C.J.:

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In May 1963, Rafaela Trias, married, filed in the Rizal court of first instance, a petition to cancel from her Torrens
certificate of title, the annotation appearing on its back which reads as follows:

5. That no factories will be permitted in this section.

She alleged she was the registered owner of this lot in Quezon City; that she wanted the cancellation, not for the purpose
of erecting a factory thereon, but merely to facilitate approval of a loan she had applied for; that the restriction was illegal,
because it impaired the owner's dominical rights; and that it was a mere surplusage anyhow, because there are zoning
ordinances prohibiting establishment of factories in that district.

Acting on the petition, the court granted it, endorsing her views, particularly the one referring to surplusage due to a
zoning ordinance.

Two weeks later, Gregorio Araneta, Inc. moved for reconsideration of the order, alleging: (a) that the condition had been
inserted in the title pursuant to a contract of sale between it and Rafaela's predecessor-in-interest; (b) that it received no
timely notice of petition; (c) that the order disregards contractual rights and obligations; (d) that the prohibition against
factories was valid, and not a surplusage; and (e) that the Court had no jurisdiction to act on the petition.

Upon denial of its motion to reconsider, Gregorio Araneta, Inc. appealed to this Court.

There are no issues of fact. The parties agree: (1) that the lot was part of a subdivision and originally belonged to J.M.
Tuason & Co. Inc. which corporation upon selling it (thru Araneta Inc.) to a purchaser (Garcia Mateo and Deogracias
Lopez), imposed the prohibition; that such prohibition was accordingly printed on the back of the transfer certificate issued
to the purchaser; (2) after several transfers, always subject to the prohibition, Rafaela acquired the lot, again subject to
the limitation which was repeated on the back of her certificate; (3) that upon receiving her certificate, she noticed the
prohibition; and so, arguing that it infringes the owner's right to use her land, she asked for its cancellation; (4) as already
stated, she obtained relief.

The questions at issue here are: (a) the validity of the prohibition or limitation; (b) the effect of the zoning ordinance.

Such prohibition is similar to other conditions imposed by sellers of subdivision lots upon purchasers thereof, in and
around Manila. It is in reality an easement,1 which every owner of real estate may validly impose under Art. 594 of the
Civil Code or under Art. 688 of the New Civil Code, which provides that "the owner of a piece of land nay establish
thereon the easements which he may deem suitable, ... provided he does not contravene the law, public policy or public
order".

No law has been cited outlawing this condition or limitation, which evidently was imposed by the owner of the subdivision
to establish a residential section in that area, or the purpose of assuring purchasers of the lots therein that the peace and
quiet of the place will not be disturbed by the noise or smoke of factories in the vicinity.

The limitation is essentially a contractual obligation which the seller, Tuason & Co., Inc. (thru Araneta Inc.) imposed, and
the purchaser agreed to accept. Of course, it restricts the free use of the parcel of land by the purchaser. However, "while
the courts have manifested some disfavor of covenants restricting the use of property, they have generally sustained them
where reasonable, and not contrary to public policy ... ." (14 Am. Jur. 616.).

"The validity of building restrictions limiting buildings to residences, ... restrictions as to the character or location of
buildings or structures to be erected on the land ... has been sustained. (14 Am. Jur. 617, citing cases.)

Now, it is proper for Tuason & Co., Inc. (thru Araneta, Inc.) to oppose the elimination of the condition from the certificate of
title, because, if it is erased, a purchaser who gets a new certificate of title without the annotation, will hold the lot free
from the encumbrance, and might build a factory there.2 As declared by sec. 39 of Act 496 as amended, "every purchaser
of registered land ... shall hold the same free from all encumbrances except those noted in said certificate."

The existence of a zoning ordinance prohibiting factories in the area is immaterial. The ordinance might be repealed at
any time; and if so repealed, this prohibition would not be enforceable against new purchasers of the land, who may be
ignorant thereof. The same remark applies to Rafaela's promise not to build a factory on the lot: new owners might not be
bound.

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A problem might arise if and when the ordinance is amended so as to convert the area into an industrial zone — impliedly
permitting factories. Probably, the limitation might still bind the lot owner (with annotation) ; but it is not the present issue,
and we do not now decide it.

IN THIS VIEW OF THE CASE, it becomes unnecessary to take up the other questions discussed by appellant, regarding
notice and jurisdiction. Neither do we pass on the point raised by appellee concerning appellant's personality to object to
the cancellation; because anyway, the proper party in interest (J.M. Tuason & Co., Inc.) could be impleaded as substitute
party on appeal. (Alonzo v. Villamor, 16 Phil. 315).

The appealed order is reversed, and the petition to cancel is denied, with costs against petitioner. So ordered.

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