G.R. No.

90596 April 8, 1991

SOLID MANILA CORPORATION, petitioner,
vs.
BIO HONG TRADING CO., INC. and COURT OF APPEALS, respondents.
Balgos &
Perez
for petitioner.
Alfredo G. de Guzman for private respondent.

SARMIENTO, J .:p
This is an appeal filed by way of a petition for review on certiorari under Rule 45 of the Rules of
Court.
The petitioner raises two questions: (1) whether or not the Court of Appeals
1
erred in reversing the
trial court which had rendered summary judgment; and (2) whether or not it erred in holding that an
easement had been extinguished by merger.
We rule for the petitioner on both counts.
It appears that the petitioner is the owner of a parcel of land located in Ermita, Manila, covered by
Transfer Certificate of Title No. 157750 of the Register of Deeds of Manila. The same lies in the
vicinity of another parcel, registered in the name of the private respondent corporation under
Transfer Certificate of Title No. 128784.
The private respondent's title came from a prior owner, and in their deed of sale, the parties thereto
reserved as an easement of way:
. . .a portion thereof measuring NINE HUNDRED FOURTEEN SQUARE METERS,
more or less, had been converted into a private alley for the benefit of neighboring
estates, this being duly annotated at the back of the covering transfer Certificate of
title per regulations of the Office of the City Engineer of Manila and that the three
meterwide portion of said parcel along the Pasig River, with an area of ONE
HUNDRED SEVENTY NINE (179) SQUARE METERS, more or less, had actually
been expropriated by the City Government, and developed pursuant to the
beautification drive of the Metro Manila Governor. (p. 3, Record).
2

As a consequence, an annotation was entered in the private respondent's title, as follows:
Entry No. 7712/T-5000 CONSTRUCTION OF PRIVATE ALLEY It is hereby
made of record that a construction of private alley has been undertaken on the lot
covered by this title from Concepcion Street to the interior of the aforesaid property
with the plan and specification duly approved by the City Engineer subject to the
following conditions to wit: (1) That the private alley shall be at least three (3) meters
in width; (2) That the alley shall not be closed so long as there's a building exists
thereon (sic); (3) That the alley shall be open to the sky; (4) That the owner of the lot
on which this private alley has been constituted shall construct the said alley and
provide same with concrete canals as per specification of the City Engineer; (5) That
the maintenance and upkeep of the alley shall be at the expense of the registered
owner; (6) That the alley shall remain open at all times, and no obstructions
whatsoever shall be placed thereon; (7) That the owner of the lot on which the alley
has been constructed shall allow the public to use the same, and allow the City to lay
pipes for sewer and drainage purposes, and shall not act (sic) for any indemnity for
the use thereof; and (8) That he shall impose upon the vendee or new owner of the
property the conditions abovementioned; other conditions set forth in Doc. No. 4236,
Page No. 11, Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila.
3

The petitioner claims that ever since, it had (as well as other residents of neighboring estates) made
use of the above private alley and maintained and contributed to its upkeep, until sometime in 1983,
when, and over its protests, the private respondent constructed steel gates that precluded
unhampered use.
On December 6, 1984, the petitioner commenced suit for injunction against the private respondent,
to have the gates removed and to allow full access to the easement.
The court a quo shortly issued ex parte an order directing the private respondent to open the gates.
Subsequently, the latter moved to have the order lifted, on the grounds that: (1) the easement
referred to has been extinguished by merger in the same person of the dominant and servient
estates upon the purchase of the property from its former owner; (2) the petitioner has another
adequate outlet; (3) the petitioner has not paid any indemnity therefor; and (4) the petitioner has not
shown that the right-of-way lies at the point least prejudicial to the servient estate.
The private respondent's opposition notwithstanding, the trial court issued a "temporary writ of
preliminary injunction to continue up to the final termination of the case upon its merits upon the
posting of a P5,000.00 bond by the plaintiff.
4
(the petitioner herein).
Thereafter, the respondent corporation answered and reiterated its above defenses.
On April 15, 1986, the petitioner moved for summary judgment and the court a quo ruled on the
same as follows:
In view of the foregoing, this Court finds it unnecessary to try this case on the merit (sic) and hereby
resolve (sic) to grant the plaintiffs motion for summary judgment. (pp. 15-107, Record).
5

On January 19, 1987, the trial court rendered judgment against the private respondent, the
dispositive portion of which states:
WHEREFORE, judgment is hereby rendered making permanent the temporary
mandatory injunction, that had been issued against the defendant, and for the
defendant to pay the plaintiff the costs of this suit.
The defendant's counterclaim against the plaintiff is hereby dismissed, for lack of
merit. (Summary Judgment, p. 6).
6

The private respondent appealed to the respondent Court of Appeals.
Meanwhile, the private respondent itself went to the Regional Trial Court on a petition for the
cancellation of the annotation in question. The court granted cancellation, for which the petitioner
instituted CA-G.R. SP No. 13421 of the respondent Court of Appeals which ordered the restoration
of the annotation "without prejudice [to] the final outcome of
7
the private respondent's own appeal
(subject of this petition).
In reversing the trial court which had, as earlier mentioned, rendered summary judgment, the
respondent Court of Appeals held that the summary judgment was improper and that the lower court
erroneously ignored the defense set up by the private respondent that the easement in question had
been extinguished. According to the Appellate Court, an easement is a mere limitation on ownership
and that it does not impair the private respondent's title, and that since the private respondent had
acquired title to the property, "merger" brought about an extinguishment of the easement.
The petitioner submits that the respondent Court of Appeals erred, because the very deed of sale
executed between the private respondent and the previous owner of the property "excluded" the
alley in question, and that in any event, the intent of the parties was to retain the "alley" as an
easement notwithstanding the sale.
As already stated at the outset, the Court finds merit in the petition.
There is no question that an easement, as described in the deed of sale executed between the
private respondent and the seller, had been constituted on the private respondent's property, and
has been in fact annotated at the back of Transfer Certificate of Title No. 128784. Specifically, the
same charged the private respondent as follows: "(6) That the alley shall remain open at all times,
and no obstructions whatsoever shall be placed thereon; (7) That the owner of the lot on which the
alley has been constructed shall allow the public to use the same, and allow the City to lay pipes for
sewer and drainage purposes, and shall not [ask] for any indemnity for the use thereof. . ."
8
Its act,
therefore, of erecting steel gates across the alley was in defiance of these conditions and a violation of
the deed of sale, and, of course, the servitude of way.
The Court then is of the opinion that injunction was and is proper and in denying injunctive relief on
appeal, the respondent Appellate Court committed an error of judgment and law.
It is hardly the point, as the Court of Appeals held, that the private respondent is the owner of the
portion on which the right-of-way had been established and that an easement can not impair
ownership. The petitioner is not claiming the easement or any part of the property as its own, but
rather, it is seeking to have the private respondent respect the easement already existing thereon.
The petitioner is moreover agreed that the private respondent has ownership, but that nonetheless, it
has failed to observe the limitation or encumbrance imposed on the same
There is therefore no question as to ownership. The question is whether or not an easement exists
on the property, and as we indicated, we are convinced that an easement exists.
It is true that the sale did include the alley. On this score, the Court rejects the petitioner's contention
that the deed of sale "excluded" it, because as a mere right-of-way, it can not be separated from the
tenement and maintain an independent existence. Thus:
Art. 617. Easements are inseparable from the estate to which they actively or
passively belong.
9

Servitudes are merely accessories to the tenements of which they form part.
10
Although they are
possessed of a separate juridical existence, as mere accessories, they can not, however, be
alienated
11
from the tenement, or mortgaged separately.
12

The fact, however, that the alley in question, as an easement, is inseparable from the main lot is no
argument to defeat the petitioner's claims, because as an easement precisely, it operates as a
limitation on the title of the owner of the servient estate, specifically, his right to use (jus utendi).
As the petitioner indeed hastens to point out, the deed itself stipulated that "a portion thereof [of the
tenement] measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or less, had been
converted into a private alley for the benefit of the neighboring estates. . ."
13
and precisely, the former
owner, in conveying the property, gave the private owner a discount on account of the easement, thus:
WHEREAS, to compensate for the foregoing, the parties hereto agreed to adjust the
purchase price from THREE MILLION SEVEN HUNDRED NINETY THOUSAND
FOUR HUNDRED FORTY PESOS (P3,790,440.) to THREE MILLION FIVE
HUNDRED THREE THOUSAND TWO HUNDRED FORTY PESOS
(P3,503,240.00)
14

Hence, and so we reiterate, albeit the private respondent did acquire ownership over the property
including the disputed alley as a result of the conveyance, it did not acquire the right to close that
alley or otherwise put up obstructions thereon and thus prevent the public from using it, because as
a servitude, the alley is supposed to be open to the public.
The Court is furthermore of the opinion, contrary to that of the Court of Appeals, that no genuine
merger took place as a consequence of the sale in favor of the private respondent corporation.
According to the Civil Code, a merger exists when ownership of the dominant and servient estates is
consolidated in the same person.
15
Merger then, as can be seen, requires full ownership of both
estates.
One thing ought to be noted here, however. The servitude in question is a personal servitude, that is
to say, one constituted not in favor of a particular tenement (a real servitude) but rather, for the
benefit of the general public.
Personal servitudes are referred to in the following article of the Civil Code:
Art. 614. Servitudes may also be established for the benefit of a community, or of
one or more persons to whom the encumbered estate does not belong.
16

In a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and the
easement pertains to persons without a dominant estate,
17
in this case, the public at large.
Merger, as we said, presupposes the existence of a prior servient-dominant owner relationship, and
the termination of that relation leaves the easement of no use. Unless the owner conveys the
property in favor of the public if that is possible no genuine merger can take place that would
terminate a personal easement.
For this reason, the trial court was not in error in rendering summary judgment, and insofar as the
respondent Court of Appeals held that it (the trial court) was in error, the Court of Appeals is in error.
Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine issue
as to the existence of a material fact, and the facts appear undisputed based on the pleadings,
depositions, admissions, and affidavits of record.
18
In one case, this Court upheld a decision of the trial
court rendered by summary judgment on a claim for money to which the defendant interposed the
defense of payment but which failed to produce receipts.
19
We held that under the circumstances, the
defense was not genuine but rather, sham, and which justified a summary judgment. In another case, we
rejected the claim of acquisitive prescription over registered property and found it likewise to be sham,
and sustained consequently, a summary judgment rendered because the title challenged was covered by
a Torrens Certificate and under the law, Torrens titles are imprescriptible.
20

We also denied reconveyance in one case and approved a summary judgment rendered thereon, on
the ground that from the records, the plaintiffs were clearly guilty of laches having failed to act until
after twenty-seven
years.
21
We likewise allowed summary judgment and rejected contentions of economic hardship as an
excuse for avoiding payment under a contract for the reason that the contract imposed liability under any
and all conditions.
22

In the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a sham one,
because as we said, merger is not possible, and secondly, the sale unequivocally preserved the
existing easement. In other words, the answer does not, in reality, tender any genuine issue on a
material fact and can not militate against the petitioner's clear cause of action.
As this Court has held, summary judgments are meant to rid a proceeding of the ritual of a trial
where, from existing records,
23
the facts have been established, and trial would be futile.
What indeed, argues against the posturing of the private respondent and consequently, the
challenged holding of the respondent Court of Appeals as well is the fact that the Court of
Appeals itself had rendered judgment, in its CA-G.R. No. 13421, entitled Solid Manila Corporation
v. Ysrael, in which it nullified the cancellation of the easement annotated at the back of the private
respondent's certificate of title ordered by Judge Ysrael in LRC Case No. 273. As the petitioner now
in fact insists, the Court of Appeals' judgment, which was affirmed by this Court in its Resolution
dated December 14, 1988, in G.R. No. 83540, is at least, the law of the case between the parties, as
"law of the case" is known in law, e.g.:
xxx xxx xxx
Law of the case has been defined as the opinion delivered on a former appeal. More
specifically, it means that whatever is once irrevocably established as the controlling
legal rule of decision between the same parties in the same case continues to be the
law of the case, whether correct on general principles or not, so long as the facts on
which such decision was predicated continue to be the facts of the case before the
court. (21 C.J.S. 330) (Emphasis supplied).
It may be stated as a rule of general application that, where the evidence on a
second or succeeding appeal is substantially the same as that on the first or
preceding appeal, all matters, questions, points, or issues adjudicated on the prior
appeal are the law of the case on all subsequent appeals and will not be considered
or readjudicated therein. (5 C.J.S. 1267) (Emphasis supplied.)
In accordance with the general rule stated in Section 1821, where, after a definite
determination, the court has remanded the cause for further action below, it will
refuse to examine question other than those arising subsequently to such
determination and remand, or other than the propriety of the compliance with its
mandate; and if the court below has proceeded in substantial conformity to the
directions of the appellate court, its action will not be questioned on a second appeal.
As a general rule a decision on a prior appeal of the same case is held to be the law
of the case whether that decision is right or wrong, the remedy of the party deeming
himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77). (Emphasis
supplied.)
Questions necessarily involved in the decision on a former appeal will be regarded
as the law of the case on a subsequent appeal, although the questions are not
expressly treated in the opinion of the court, as the presumption is that all the facts in
the case bearing on the point decided have received due consideration whether all or
none of them are mentioned in the opinion. (5 C.J.S. 1286-87). (Emphasis
supplied.)
24

CA-G.R. No. 13421 is the law of the case because clearly, it was brought to determine the rights of
the parties regarding the easement, subject of the controversy in this case, although as a petition for
"cancellation of annotation" it may have, at a glance, suggested a different cause of action.
And for reasons of fair play, the private respondent can not validly reject CA-G.R. No. 13421 as the
law of the case, after all, it was the one that initiated the cancellation proceedings with the Regional
Trial Court in LRC No. 273 that precipitated that appeal. In the second place, the proceedings for
cancellation of annotation was in fact meant to preempt the injunction decreed by the lower court in
this case. Plainly and simply, the private respondent is guilty of forum-shopping, as we have
described the term:
xxx xxx xxx
There is forum-shopping whenever, as a result of an adverse opinion in one forum, a
party seeks a favorable opinion (other than by appeal or certiorari) in another. The
principle applies not only with respect to suits filed in the courts but also in
connection with litigations commenced in the courts while an administrative
proceeding is pending, as in this case, in order to defeat administrative processes
and in anticipation of an unfavorable administrative ruling and a favorable court
ruling. This is specially so, as in this case, where the court in which the second suit
was brought, has no jurisdiction.
25

to which contempt is a penalty.
26

As it happened, in its effort to shop for a friendly forum, the private respondent found an unfriendly
court and it can not be made to profit from its act of malpractice by permitting it to downgrade its
finality and deny its applicability as the law of the case.
As a personal servitude, the right-of-way in question was established by the will of the owner.
In the interesting case of North Negros Sugar Co., Inc. v. Hidalgo,
27
this Court, speaking through
Justice Claro Recto, declared that a personal servitude (also a right of way in that case) is established by
the mere "act"
28
of the landowner, and is not "contractual in the nature,"
29
and a third party (as the
petitioner herein is a third party) has the personality to claim its benefits. In his separate opinion, however,
Justice Jose Laurel maintained that a personal or voluntary servitude does require a contract and that
"[t]he act of the plaintiff in opening the private way here involved did not constitute an offer . . . "
30
and
"[t]here being no offer, there could be no acceptance; hence no contract."
31

The Court sees no need to relive the animated exchanges between two legal titans (they would
contend even more spiritedly in the "larger" world of politics) to whom present scholars perhaps owe
their erudition and who, because of the paths they have taken, have shaped history itself; after all,
and coming back to the case at bar, it is not disputed that an easement has been constituted,
whereas it was disputed in North Negros' case. Rather, the question is whether it is still existing or
whether it has been extinguished. As we held, our findings is that it is in existence and as a
consequence, the private respondent can not bar the public, by erecting an obstruction on the alley,
from its use.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals is SET ASIDE and
the decision of the Regional Trial Court is hereby REINSTATED. The petitioner and its counsel are
hereby required to SHOW CAUSE why they should not be punished for contempt of court, and also
administratively dealt with in the case of counsel, for forum shopping.
IT IS SO ORDERED.















G.R. No. 124699 July 31, 2003
BOGO-MEDELLIN MILLING CO., INC., Petitioner,
vs.
COURT OF APPEALS AND HEIRS OF MAGDALENO VALDEZ SR., Respondents.
D E C I S I O N
CORONA, J .:
This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to annul and set aside the
decision
1
dated November 17, 1995 of the Court of Appeals, Tenth Division, which reversed the
decision
2
dated November 27, 1991 of the Regional Trial Court of Cebu City, Branch IX, which ruled
in favor of herein petitioner, Bogo-Medellin Milling Company, Inc. and dismissed herein private
respondents' complaint for payment of compensation and/or recovery of possession of real property
and damages with application for restraining order or preliminary injunction; and its resolution dated
March 2, 1996 denying petitioner's motion for reconsideration.
The antecedent facts follow.
Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez, Angelina Valdez-
Novabos, Teresita Argawanon-Mangubat and Daylinda Argawanon-Melendres (hereafter the heirs),
purchased from Feliciana Santillan, on December 9, 1935, a parcel of unregistered land covered by
Tax Declaration No. 3935 with an area of one hectare, 34 ares and 16 centares, located in Barrio
Dayhagon, Medellin, Cebu.
3
He took possession of the property and declared it for tax purposes in
his name.
4

Prior to the sale, however, the entire length of the land from north to south was already traversed in
the middle by railroad tracks owned by petitioner Bogo-Medellin Milling Co., Inc. (hereafter
Bomedco). The tracks were used for hauling sugar cane from the fields to petitioners sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents inherited the land.
However, unknown to them, Bomedco was able to have the disputed middle lot which was occupied
by the railroad tracks placed in its name in the Cadastral Survey of Medellin, Cebu in 1965. The
entire subject land was divided into three, namely, Cadastral Lot Nos. 953, 954 and 955. Lot Nos.
953 and 955 remained in the name of private respondents. However, Lot No. 954, the narrow lot
where the railroad tracks lay, was claimed by Bomedco as its own and was declared for tax
purposes in its name.
5

It was not until 1989 when private respondents discovered the aforementioned claim of Bomedco on
inquiry with the Bureau of Lands. Through their lawyer, they immediately demanded the legal basis
for Bomedco's claim over Cadastral Lot No. 954 but their letter of inquiry addressed to petitioner
went unheeded, as was their subsequent demand for payment of compensation for the use of the
land.
6

On June 8, 1989, respondent heirs filed a "Complaint for Payment of Compensation and/or
Recovery of Possession of Real Property and Damages with Application for Restraining
Order/Preliminary Injunction" against Bomedco before the Regional Trial Court of
Cebu.
7
Respondent heirs alleged that, before she sold the land to Valdez, Sr. in 1935, Santillan
granted Bomedco, in 1929, a railroad right of way for a period of 30 years. When Valdez, Sr.
acquired the land, he respected the grant. The right of way expired sometime in 1959 but
respondent heirs allowed Bomedco to continue using the land because one of them was then an
employee of the company.
8

In support of the complaint, they presented an ancient document an original copy of the deed of
sale written in Spanish and dated December 9, 1935
9
to evidence the sale of the land to
Magdaleno Valdez, Sr.; several original real estate tax receipts
10
including Real Property Tax
Receipt No. 3935
11
dated 1922 in the name of Graciano de los Reyes, husband of Feliciana
Santillan, and Real Property Tax Receipt No. 09491
12
dated 1963 in the name of Magdaleno Valdez,
Sr. Magdaleno Valdez, Jr. also testified for the plaintiffs during the trial.
On the other hand, Bomedcos principal defense was that it was the owner and possessor of
Cadastral Lot No. 954, having allegedly bought the same from Feliciana Santillan in 1929, prior to
the sale of the property by the latter to Magdaleno Valdez, Sr. in 1935. It also contended that
plaintiffs claim was already barred by prescription and laches because of Bomedcos open and
continuous possession of the property for more than 50 years.
Bomedco submitted in evidence a Deed of Sale
13
dated March 18, 1929; seven real estate tax
receipts
14
for the property covering the period from 1930 to 1985; a 1929 Survey Plan of private land
for Bogo-Medellin Milling Company;
15
a Survey Notification Card;
16
Lot Data Computation for Lot No.
954;
17
a Cadastral Map for Medellin Cadastre
18
as well as the testimonies of Vicente Basmayor,
Geodetic Engineer and property custodian for Bomedco, and Rafaela A. Belleza, Geodetic Engineer
and Chief of the Land Management Services of the DENR, Region VIII.
In its decision dated November 27, 1991, the trial court
19
rejected Bomedco's defense of ownership
on the basis of a prior sale, citing that its evidence a xerox copy of the Deed of Sale dated March
18, 1929 was inadmissible and had no probative value. Not only was it not signed by the parties
but defendant Bomedco also failed to present the original copy without valid reason pursuant to
Section 4, Rule 130 of the Rules of Court.
20

Nonetheless, the trial court held that Bomedco had been in possession of Cadastral Lot No. 954 in
good faith for more than 10 years, thus, it had already acquired ownership of the property through
acquisitive prescription under Article 620 of the Civil Code. It explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT easements can be acquired by
prescription after ten (10) years. The "apparent" characteristic of the questioned property being used
by defendant as an easement is no longer at issue, because plaintiffs themselves had
acknowledged that the existence of the railway tracks of defendant Bomedco was already known by
the late Magdaleno Valdez, herein plaintiffs predecessor-in-interest, before the late Magdaleno
Valdez purchased in 1935 from the late Feliciana Santillan the land described in the Complaint
where defendants railway tracks is traversing [sic] (TSN of February 5, 1991, pp. 7-8). As to the
continuity of defendants use of the strip of land as easement is [sic] also manifest from the
continuous and uninterrupted occupation of the questioned property from 1929 up to the date of the
filing of the instant Complaint. In view of the defendants UNINTERRUPTED possession of the strip
of land for more than fifity (50) years, the Supreme Courts ruling in the case of Ronquillo, et al. v.
Roco, et al. (103 Phil 84) is not applicable. This is because in said case the easement in question
was a strip of dirt road whose possession by the dominant estate occurs only everytime said dirt
road was being used by the dominant estate. Such fact would necessarily show that the easements
possession by the dominant estate was never continuous. In the instant case however, there is clear
continuity of defendants possession of the strip of land it had been using as railway tracks. Because
the railway tracks which defendant had constructed on the questioned strip of land had been
CONTINUOUSLY occupying said easement. Thus, defendant Bomedcos apparent and continuous
possession of said strip of land in good faith for more than ten (10) years had made defendant owner
of said strip of land traversed by its railway tracks. Because the railway tracks which defendant had
constructed on the questioned strip of land had been continuously occupying said easement [sic].
Thus, defendant Bomedcos apparent and continuous possession of said strip of land in good faith
for more than ten (10) years had made defendant owner of said strip of land traversed by its railway
tracks.
Respondent heirs elevated the case to the Court of Appeals which found that Bomedco did not
acquire ownership over the lot. It consequently reversed the trial court. In its decision dated
November 17, 1995, the appellate court held that Bomedco only acquired an easement of right of
way by unopposed and continuous use of the land, but not ownership, under Article 620 of the Civil
Code.
The appellate court further ruled that Bomedcos claim of a prior sale to it by Feliciana Santillan was
untrue. Its possession being in bad faith, the applicable prescriptive period in order to acquire
ownership over the land was 30 years under Article 1137 of the Civil Code. Adverse possession of
the property started only in 1965 when Bomedco registered its claim in the cadastral survey of
Medellin. Since only 24 years from 1965 had elapsed when the heirs filed a complaint against
Bomedco in 1989, Bomedcos possession of the land had not yet ripened into ownership.
And since there was no showing that respondent heirs or their predecessor-in-interest was ever paid
compensation for the use of the land, the appellate court awarded compensation to them, to be
computed from the time of discovery of the adverse acts of Bomedco.
Its motion for reconsideration having been denied by the appellate court in its resolution dated March
22, 1996, Bomedco now interposes before us this present appeal by certiorari under Rule 45,
assigning the following errors:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REVERSED
AND SET ASIDE THE TRIAL COURTS DECISION DISMISSING PRIVATE
RESPONDENTS COMPLAINT.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT ORDERED
THE PETITIONER TO PAY THE PRIVATE RESPONDENT THE REASONABLE VALUE OF
LOT 954 AND THE AMOUNT OF TEN THOUSAND (P10,000.00) PESOS AS
REASONABLE ATTORNEYS FEES.
Petitioner Bomedco reiterates its claim of ownership of the land through extraordinary acquisitive
prescription under Article 1137 of the Civil Code and laches to defeat the claim for compensation or
recovery of possession by respondent heirs. It also submits a third ground originally tendered by the
trial court acquisition of the easement of right of way by prescription under Article 620 of the Civil
Code.
Extraordinary Acquisitive Prescription
Under Art. 1137 of the Civil Code
Petitioners claim of ownership through extraordinary acquisitive prescription under Article 1137 of
the Civil Code cannot be sustained.
There is no dispute that the controversial strip of land has been in the continuous possession of
petitioner since 1929. But possession, to constitute the foundation of a prescriptive right, must be
possession under a claim of title, that is, it must be adverse.
21
Unless coupled with the element of
hostility towards the true owner, possession, however long, will not confer title by prescription.
22

After a careful review of the records, we are inclined to believe the version of respondent heirs that
an easement of right of way was actually granted to petitioner for which reason the latter was able to
occupy Cadastral Lot No. 954. We cannot disregard the fact that, for the years 1930, 1937, 1949,
1962 and 1963, petitioner unequivocally declared the property to be a "central railroad right of way"
or "sugar central railroad right of way" in its real estate tax receipts when it could have declared it to
be "industrial land" as it did for the years 1975 and 1985.
23
Instead of indicatingownership of the lot,
these receipts showed that all petitioner had was possession by virtue of the right of way granted to
it. Were it not so and petitioner really owned the land, petitioner would not have consistently used
the phrases "central railroad right of way" and "sugar central railroad right of way" in its tax
declarations until 1963. Certainly an owner would have found no need for these phrases. A person
cannot have an easement on his own land, since all the uses of an easement are fully
comprehended in his general right of ownership.
24

While it is true that, together with a persons actual and adverse possession of the land, tax
declarations constitute strong evidence of ownership of the land occupied by him,
25
this legal precept
does not apply in cases where the property is declared to be a mere easement of right of way.
An easement or servitude is a real right, constituted on the corporeal immovable property of another,
by virtue of which the owner has to refrain from doing, or must allow someone to do, something on
his property, for the benefit of another thing or person. It exists only when the servient and dominant
estates belong to two different owners. It gives the holder of the easement an incorporeal interest on
the land but grants no title thereto. Therefore, an acknowledgment of the easement is an admission
that the property belongs to another.
26

Having held the property by virtue of an easement, petitioner cannot now assert that its occupancy
since 1929 was in the concept of an owner. Neither can it declare that the 30-year period of
extraordinary acquisitive prescription started from that year.
Petitioner, however, maintains that even if a servitude was merely imposed on the property in its
favor, its possession immediately became adverse to the owner in the late 1950s when the grant
was alleged by respondent heirs to have expired. It stresses that, counting from the late 1950s
(1959 as found by the trial court), the 30-year extraordinary acquisitive prescription had already set
in by the time respondent heirs made a claim against it in their letters dated March 1 and April 6,
1989.
We do not think so. The mere expiration of the period of easement in 1959 did not convert
petitioners possession into an adverse one. Mere material possession of land is not adverse
possession as against the owner and is insufficient to vest title, unless such possession is
accompanied by the intent to possess as an owner.
27
There should be a hostile use of such a nature
and exercised under such circumstances as to manifest and give notice that the possession is under
a claim of right.
In the absence of an express grant by the owner, or conduct by petitioner sugar mill from which an
adverse claim can be implied, its possession of the lot can only be presumed to have continued in
the same character as when it was acquired (that is, it possessed the land only by virtue of the
original grant of the easement of right of way),
28
or was by mere license or tolerance of the owners
(respondent heirs).
29
It is a fundamental principle of law in this jurisdiction that acts of possessory
character executed by virtue of license or tolerance of the owner, no matter how long, do not start
the running of the period of prescription.
30

After the grant of easement expired in 1959, petitioner never performed any act incompatible with
the ownership of respondent heirs over Cadastral Lot No. 954. On the contrary, until 1963, petitioner
continued to declare the "sugar central railroad right of way" in its realty tax receipts, thereby
doubtlessly conceding the ownership of respondent heirs. Respondents themselves were emphatic
that they simply tolerated petitioners continued use of Cadastral Lot No. 954 so as not to jeopardize
the employment of one of their co-heirs in the sugar mill of petitioner.
31

The only time petitioner assumed a legal position adverse to respondents was when it filed a claim
over the property in 1965 during the cadastral survey of Medellin. Since then (1965) and until the
filing of the complaint for the recovery of the subject land before the RTC of Cebu in 1989, only 24
years had lapsed. Since the required 30-year extraordinary prescriptive period had not yet been
complied with in 1989, petitioner never acquired ownership of the subject land.
Laches
Neither can petitioner find refuge in the principle of laches. It is not just the lapse of time or delay that
constitutes laches. The essence of laches is the failure or neglect, for an unreasonable and
unexplained length of time, to do that which, through due diligence, could or should have been done
earlier, thus giving rise to a presumption that the party entitled to assert it had either abandoned or
declined to assert it.
32

Its essential elements are: (a) conduct on the part of the defendant, or of one under whom he claims,
giving rise to the situation complained of; (b) delay in asserting complainants rights after he had
knowledge of defendants acts and after he has had the opportunity to sue; (c) lack of knowledge or
notice by defendant that the complainant will assert the right on which he bases his suit; and (d)
injury or prejudice to the defendant in the event the relief is accorded to the complainant.
33

The second element (which in turn has three aspects) is lacking in the case at bar. These aspects
are: (a) knowledge of defendant's action, (b) opportunity to sue defendant after obtaining such
knowledge and (c) delay in the filing of such suit.
34

Records show that respondent heirs only learned about petitioners claim on their property when
they discovered the inscription for the cadastral survey in the records of the Bureau of Lands in
1989. Respondents lost no time in demanding an explanation for said claim in their letters to the
petitioner dated March 1, 1989 and April 6, 1989. When petitioner ignored them, they instituted their
complaint before the Regional Trial Court of Cebu City on June 8, 1989.
Petitioners reliance on Caro vs. Court of Appeals
35
and Vda. de Alberto vs. Court of Appeals
36
is
misplaced. There, laches was applied to bar petitioners from questioning the ownership of the
disputed properties precisely because they had knowledge of the adverse claims on their properties
yet tarried for an extraordinary period of time before taking steps to protect their rights.
Further, there is no absolute rule on what constitutes laches. It is a rule of equity and applied not to
penalize neglect or sleeping on ones rights but rather to avoid recognizing a right when to do so
would result in a clearly unfair situation. The question of laches is addressed to the sound discretion
of the court and each case must be decided according to its particular circumstances.
37
It is the
better rule that courts, under the principle of equity, should not be guided or bound strictly by the
statute of limitations or the doctrine of laches if wrong or injustice will result.
It is clear that petitioner never acquired ownership over Cadastral Lot No. 954 whether by
extraordinary acquisitive prescription or by laches.
Acquisition of Easement of Right of Way By
Prescription Under Art. 620 of the Civil Code
Petitioner contends that, even if it failed to acquire ownership of the subject land, it nevertheless
became legally entitled to the easement of right of way over said land by virtue of prescription under
Article 620 of the Civil Code:
Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten
years.
The trial court and the Court of Appeals both upheld this view for the reason that the railroad right of
way was, according to them, continuous and apparent in nature. The more or less permanent
railroad tracks were visuallyapparent and they continuously occupied the subject strip of land from
1959 (the year the easement granted by Feliciana Santillan to petitioner expired). Thus, with the
lapse of the 10-year prescriptive period in 1969, petitioner supposedly acquired the easement of
right of way over the subject land.
Following the logic of the courts a quo, if a road for the use of vehicles or the passage of persons is
permanently cemented or asphalted, then the right of way over it becomes continuous in nature. The
reasoning is erroneous.
Under civil law and its jurisprudence, easements are either continuous or discontinuous according
to the manner they are exercised, not according to the presence of apparent signs or physical
indications of the existence of such easements. Thus, an easement is continuous if its use is, or may
be, incessant without the intervention of any act of man, like the easement of drainage;
38
and it is
discontinuous if it is used at intervals and depends on the act of man, like the easement of right of
way.
39

The easement of right of way is considered discontinuous because it is exercised only if a person
passes or sets foot on somebody elses land. Like a road for the passage of vehicles or persons, an
easement of right of way of railroad tracks is discontinuous because the right is exercised only if and
when a train operated by a person passes over another's property. In other words, the very exercise
of the servitude depends upon the act or intervention of man which is the very essence of
discontinuous easements.
The presence of more or less permanent railroad tracks does not in any way convert the nature of
an easement of right of way to one that is continuous. It is not the presence of apparent signs or
physical indications showing the existence of an easement, but rather the manner of
exercise thereof, that categorizes such easement into continuous or discontinuous. The presence of
physical or visual signs only classifies an easement into apparent ornon-apparent. Thus, a road
(which reveals a right of way) and a window (which evidences a right to light and view) are apparent
easements, while an easement of not building beyond a certain height is non-apparent.
40

In Cuba, it has been held that the existence of a permanent railway does not make the right of way a
continuous one; it is only apparent. Therefore, it cannot be acquired by prescription.
41
In Louisiana, it
has also been held that a right of passage over another's land cannot be claimed by prescription
because this easement is discontinuous and can be established only by title.
42

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

None of the above options to acquire title over the railroad right of way was ever pursued by
petitioner despite the fact that simple resourcefulness demanded such initiative, considering the
importance of the railway tracks to its business. No doubt, it is unlawfully occupying and using the
subject strip of land as a railroad right of way without valid title yet it refuses to vacate it even after
demand of the heirs. Furthermore, it tenaciously insists on ownership thereof despite a clear
showing to the contrary.
We thus uphold the grant by the Court of Appeals of attorneys fees in the amount of P10,000
considering the evident bad faith of petitioner in refusing respondents just and lawful claims,
compelling the latter to litigate.
44

WHEREFORE, the petition is DENIED. The appealed decision dated November 17, 1995 and
resolution dated March 2, 1996 of the Court of Appeals are AFFIRMED with MODIFICATION.
Petitioner Bogo-Medellin Milling Company, Inc. is hereby ordered to vacate the subject strip of land
denominated as Cadastral Lot No. 954, remove its railway tracks thereon and return its possession
to the private respondents, the heirs of Magdaleno Valdez, Sr. It is also hereby ordered to pay
private respondents attorney's fees in the amount of P10,000.
SO ORDERED.

G.R. No. 80511 January 25, 1991
COSTABELLA CORPORATION, petitioner,
vs.
COURT OF APPEALS, KATIPUNAN LUMBER CO., INC., AURORA BUSTOS LOPEZ, MANUEL
S. SATORRE, JR., JOSEFA C. REVILLES, FELIX TIUKINHOY, JR., PERFECTA L. CHUANGCO,
and CESAR T. ESPINA,respondents.
Roco, Bunag, Kapunan & Migallos for petitioner.
Albano, Garcia & Diaz Law Offices for Katipunan Lumber Co., Inc.
Zosa & Quijano Law Offices for respondents.

SARMIENTO, J .:p
The principal issue raised in this petition for review on certiorari of the decision
1
dated May 30, 1986
of the Court of Appeals,
2
which modified the decision
3
rendered by the Regional Trial Court of Lapu-
Lapu City in Cebu, is whether or not the private respondents had acquired an easement of right of way, in
the form of a passageway, on the petitioner's property.
It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122 and
5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it had
constructed a resort and hotel. The private respondents, on the other hand, are the owners of
adjoining properties more particularly known as Lots Nos. 5123-A and 5123-C of the Opon Cadastre.
Before the petitioner began the construction of its beach hotel, the private respondents, in going to
and from their respective properties and the provincial road, passed through a passageway which
traversed the petitioner's property. In 1981, the petitioner closed the aforementioned passageway
when it began the construction of its hotel, but nonetheless opened another route across its property
through which the private respondents, as in the past, were allowed to pass. (Later, or sometime in
August, 1982, when it undertook the construction of the second phase of its beach hotel, the
petitioner fenced its property thus closing even the alternative passageway and preventing the
private respondents from traversing any part of it.)
As a direct consequence of these closures, an action for injunction with damages was filed against
the petitioner by the private respondents on September 2, 1982 before the then Court of First
Instance of Cebu.
4
In their complaint, the private respondents assailed the petitioner's closure of the
original passageway which they (private respondents) claimed to be an "ancient road right of way" that
had been existing before World War II and since then had been used by them, the community, and the
general public, either as pedestrians or by means of vehicles, in going to and coming from Lapu-Lapu
City and other parts of the country. The private respondents averred that by closing the alleged road right
of way in question, the petitioner had deprived them access to their properties and caused them
damages.
In the same complainant, the private respondents likewise alleged that the petitioner had
constructed a dike on the beach fronting the latter's property without the necessary permit,
obstructing the passage of the residents and local fishermen, and trapping debris and flotsam on the
beach. They also claimed that the debris and flotsam that had accumulated prevented them from
using their properties for the purpose for which they had acquired them. The complaint this prayed
for the trial court to order the re-opening of the original passageway across the petitioner's property
as well as the destruction of the dike.
5

In its answer,
6
the petitioner denied the existence of an ancient road through its property and counter-
averred, among others, that it and its predecessors-in-interest had permitted the temporary, intermittent,
and gratuitous use of, or passage through, its property by the private respondents and others by mere
tolerance and purely as an act of neighborliness. It justified the walling in of its property in view of the
need to insure the safety and security of its hotel and beach resort, and for the protection of the privacy
and convenience of its hotel patrons and guests. At any rate, the petitioner alleged, the private
respondents were not entirely dependent on the subject passageway as they (private respondents) had
another existing and adequate access to the public road through other properties. With respect to the dike
it allegedly constructed, the petitioner stated that what it built was a breakwater on the foreshore land
fronting its property and not a dike as claimed by the private respondents. Moreover, contrary to the
private respondents' accusation, the said construction had benefitted the community especially the
fishermen who used the same as mooring for their boats during low tide. The quantity of flotsam and
debris which had formed on the private respondents' beach front on the other hand were but the natural
and unavoidable accumulations on beaches by the action of the tides and movement of the waves of the
sea. The petitioner's answer then assailed the private respondents' complaint for its failure to implead as
defendants the owners of the other properties supposedly traversed by the alleged ancient road right
way, indispensable parties without whom no final adjudication of the controversy could be rendered.
7

After trial, the court a quo rendered a decision on March 15, 1984 finding that the private
respondents had acquired a vested right over the passageway in controversy based on its long
existence and its continued use and enjoyment not only by the private respondents, but also by the
community at large. The petitioner in so closing the said passageway, had accordingly violated the
private respondents' vested right. Thus, the trial court ordered the petitioner:
1. To open and make available the road in question to the plaintiffs and the general
public at all times free of any obstacle thereof, unless the defendant, shall provide
another road equally accessible and convenient as the road or passage closed by
the defendant;
2. To pay the plaintiff Katipunan Lumber Company, Inc. the amount of FIVE
THOUSAND PESOS (P5,000.00) a month beginning January, 1983, and the plaintiff
Perfecto Guangco the sum of TWO HUNDRED PESOS (P200.00) a month
beginning September, 1982, representing their respective expenditures they had
incurred in other beach resorts after the road was closed, until the passageway
claimed by them is opened and made available to them, or if the defendant chooses
to provide another road, until such road is made available and conveniently passable
to the plaintiffs and the general public; and
3. To pay the sum of FIFTEEN THOUSAND PESOS (P15,000.00) attorney's fees,
and to pay the costs.
8

Both parties elevated the trial court's decision to the Court of Appeals, with the petitioner questioning
the alleged "vested right" of the private respondents over the subject passageway, and the private
respondents assailing the dismissal of their complaint insofar as their prayer for the demolition of the
petitioner's "dike" is concerned.
In its decision, the respondent Appellate Court held as without basis the trial court's finding that the
private respondents had acquired a vested right over the passageway in question by virtue of
prescription.
9
The appellate court pointed out that an easement of right of way is a discontinuous one
which, under Article 622 of the New Civil Code, may only be acquired by virtue of a title and not by
prescription.
10
That notwithstanding, the appellate court went on to rule that ". . . in the interest of justice
and in the exercise by this Court of its equity jurisdiction, there is no reason for Us in not treating the
easement here sought by appellees Katipunan Lumber Co., Inc. and Perfecta Guangco as one that is not
dependent upon the claims of the parties but a compulsory one that is legally demandable by the owner
of the dominant estate from the owner of the servient estate."
11
Thus the appellate court: (1) granted the
private respondents the right to an easement of way on the petitioner's property using the passageway in
question, unless the petitioner should provide another passageway equally accessible and convenient as
the one it closed; (2) remanded the case to the trial court for the determination of the just and proper
indemnity to be paid to the petitioner by the private respondents for the said easement; and (3) set aside
the trial court's award of actual damages and attorney's fees.
12

On petitioner's motion for partial reconsideration, the respondent court issued on October 27, 1987 a
resolution
13
denying the said motion. The Appellate Court however in denying the petitioner's motion for
reconsideration stated that:
. . . While it is true that there is another outlet for the plaintiff to the main road, yet
such outlet is a new road constructed in 1979, while the road closed by defendant
existed since over 30 years before. Legally, the old road could be closed; but since
the existing outlet is inconvenient to the plaintiff, equitably the plaintiff should be
given a chance to pay for a more convenient outlet through the land of the defendant
at a point least prejudicial to the latter. In any event, the plaintiff shall pay for all
damages that defendant corporation may sustain and the defendant regulates the
manner of use of the right of way to protect defendant's property and its customers.
This is the gist of Our decision.
14

Now before us, the petitioner contends that the decision of the respondent appellate court is grossly
erroneous and not in accord with the provisions of Articles 649 and 650 of the Civil Code on
easements and the prevailing jurisprudence on the matter.
The petition is meritorious.
It is already well-established that an easement of right of way, as is involved here, is
discontinuous
15
and as such can not be acquired by prescription.
16
Insofar therefore as the appellate
court adhered to the foregoing precepts, it stood correct. Unfortunately, after making the correct
pronouncement, the respondent Appellate Court did not order the reversal of the trial court's decision and
the dismissal of the complaint after holding that no easement had been validly constituted over the
petitioner's property. Instead, the Appellate Court went on to commit a reversible error by considering the
passageway in issue as a compulsory easement which the private respondents, as owners of the
"dominant" estate, may demand from the petitioner the latter being the owner of the "servient" estate.
It is provided under Articles 649 and 650 of the New Civil Code that:
Art. 649. The owner, or any person who by virtue of a real right may cultivate or use
any immovable, which is surrounded by other immovables pertaining to other
persons and without adequate outlet to a public highway, is entitled to demand a
right of way through the neighboring estates, after payment of the proper indemnity.
Should this easement be established in such a manner that its use may be
continuous for all the needs of the dominant estate, establishing a permanent
passage, the indemnity shall consist of the value of the land occupied and the
amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary passage for the cultivation of the
estate surrounded by others and for the gathering of its crops through the servient
estate without a permanent way, the indemnity shall consist in the payment of the
damage caused by such encumbrance.
This easement is not compulsory if the isolation of the immovable is due to the
proprietor's own acts.
Art. 650. The easement of right of way shall be established at the point least
prejudicial to the servient estate, and, insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may be the shortest.
Based on the foregoing, the owner of the dominant estate may validly claim a compulsory right of
way only after he has established the existence of four requisites, to wit: (1) the (dominant) estate is
surrounded by other immovables and is without adequate outlet to a public highway; (2) after
payment of the proper indemnity; (3) the isolation was not due to the proprietor's own acts; and (4)
the right of way claimed is at a point least prejudicial to the servient estate. Additionally, the burden
of proving the existence of the foregoing pre-requisites lies on the owner of the dominant estate.
17

Here, there is absent any showing that the private respondents had established the existence of the
four requisites mandated by law. For one, they failed to prove that there is no adequate outlet from
their respective properties to a public highway. On the contrary, as alleged by the petitioner in its
answer to the complaint, and confirmed by the appellate court, "there is another outlet for the
plaintiffs (private respondents) to the main road."
18
Thus, the respondent Court of Appeals likewise
admitted that "legally the old road could be
closed."
19
Yet, it ordered the re- opening of the old passageway on the ground that "the existing outlet
(the other outlet) is inconvenient to the plaintiff."
20
On this score, it is apparent that the Court of Appeals
lost sight of the fact that the convenience of the dominant estate has never been the gauge for the grant
of compulsory right of way.
21
To be sure, the true standard for the grant of the legal right is "adequacy."
Hence, when there is already an existing adequate outlet from the dominant estate to a public highway,
even if the said outlet, for one reason or another, be inconvenient, the need to open up another servitude
is entirely unjustified. For to justify the imposition of an easement or right of way, "there must be a real,
not a fictitious or artificial necessity for it."
22

Further, the private respondents failed to indicate in their complaint or even to manifest during the
trial of the case that they were willing to indemnify fully the petitioner for the right of way to be
established over its property. Neither have the private respondents been able to show that the
isolation of their property was not due to their personal or their predecessors-in-interest's own acts.
Finally, the private respondents failed to allege, much more introduce any evidence, that the
passageway they seek to be re-opened is at a point least prejudicial to the petitioner. Considering
that the petitioner operates a hotel and beach resort in its property, it must undeniably maintain a
strict standard of security within its premises. Otherwise, the convenience, privacy, and safety of its
clients and patrons would be compromised. That indubitably will doom the petitioner's business. It is
therefore of great importance that the claimed light of way over the petitioner's property be located at
a point least prejudicial to its business.
Hence, the Private respondents' properties can not be said to be isolated, for which a compulsory
easement is demandable. Insofar therefore as the Appellate Court declared the case to be proper as
a controversy for a compulsory right of way, this Court is constrained to hold that it was in error.
Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via of the
Romans.
23
They are demanded by necessity, that is, to enable owners of isolated estates to make full
use of their properties, which lack of access to public roads has denied them.
24
Under Article 649 of the
Civil Code, they are compulsory and hence, legally demandable, subject to indemnity and the
concurrence of the other conditions above-referred to.
As also earlier indicated, there must be a real necessity therefor, and not mere convenience for the
dominant estate. Hence, if there is an existing outlet, otherwise adequate, to the highway, the
"dominant" estate can not demand a right of way, although the same may not be convenient. Of
course, the question of when a particular passage may be said to be "adequate" depends on the
circumstances of each case. Manresa, however, says: "In truth, not only the estate which absolutely
does not possess it should be considered in this condition, but also that which does not have one
sufficiently safe or serviceable; an estate bordering a public road through an inaccessible slope or
precipice, is in fact isolated for all the effects of the easement requested by its owner. On the other
hand, an estate which for any reason has necessarily lost its access to a public road during certain
periods of the year is in the same condition. . . . There are some who propound the query as to
whether the fact that a river flows between the estate and the public road should be considered as
having the effect of isolating the estate. . . . If the river may be crossed conveniently at all times
without the least danger, it cannot be said that the estate is isolated; in any other case, the answer is
in the affirmative."
25

The isolation of the dominant estate is also dependent on the particular need of the dominant owner,
and the estate itself need not be totally landlocked. What is important to consider is whether or not a
right of way is necessary to fill a reasonable need therefor by the owner.
26
Thus, as Manresa had
pointed out, if the passageway consists of an "inaccessible slope or precipice,"
27
it is as if there is no
passageway, that is, one that can sufficiently fulfill the dominant owner's necessities, although by the
existence of that passageway the property can not be truly said that the property is isolated. So also,
while an existing right of way may have proved adequate at the start, the dominant owner's need may
have changed since then, for which Article 651 of the Code allows adjustments as to width.
28

But while a right of way is legally demandable, the owner of the dominant estate is not at liberty to
impose one based on arbitrary choice. Under Article 650 of the Code, it shall be established upon
two criteria: (1) at the point least prejudicial to the servient state; and (2) where the distance to a
public highway may be the shortest. According, however, to one commentator, "least prejudice"
prevails over "shortest distance."
29
Yet, each case must be weighed according to its individual merits,
and judged according to the sound discretion of the court. "The court," says Tolentino, "is not bound to
establish what is the shortest; a longer way may be established to avoid injury to the servient tenement,
such as when there are constuctions or walls which can be avoided by a roundabout way, or to secure
the interest of the dominant owner, such as when the shortest distance would place the way on a
dangerous decline."
30

It is based on these settled principles that we have resolved this case.
WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987, of the
respondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby
DISMISSED. Costs against the private respondents.
SO ORDERED.



G.R. No. L-14652 June 30, 1960
JUAN GARGANTOS, petitioner,
vs.
TAN YANON and THE COURT OF APPEALS, respondents.
Jose T. Nery for petitioner.
Constantino P. Tadena for respondents.
GUTIERREZ DAVID, J .:
Juan Gargantos appeals by certiorari from the decision of the Court of Appeals reversing the
judgment of the Court of First Instance of Romblon.
The record discloses that the late Francisco Sanz was the former owner of a parcel of land
containing 888 square meters, with the buildings and improvements thereon, situated in
the poblacion of Romblon. He subdivided the lot into three and then sold each portion to different
persons. One portion was purchased by Guillermo Tengtio who subsequently sold it to Vicente Uy
Veza. Another portion, with the house of strong materials thereon, was sold in 1927 to Tan Yanon,
respondent herein. This house has on its northeastern side, doors and windows over-looking the
third portion, which, together with the camarin and small building thereon, after passing through
several hands, was finally acquired by Juan Gargantos, petitioner herein.
On April 23, 1955, Gargantos applied to the Municipal Mayor for a permit to demolish the roofing of
the old camarin. The permit having been granted, Gargantos tore down the roof of the camarin. On
May 11, 1955, Gargantos asked the Municipal Council of Romblon for another permit, this time in
order to construct a combined residential house and warehouse on his lot. Tan Yanon opposed
approval of this application.
Because both the provincial fiscal and district engineer of Romblon recommended granting of the
building permit to Gargantos, Tan Yanon filed against Gargantos an action to restrain him from
constructing a building that would prevent plaintiff from receiving light and enjoying the view trough
the window of his house, unless such building is erected at a distance of not less than three meters
from the boundary line between the lots of plaintiff and defendant, and to enjoin the members of
Municipal Council of Romblon from issuing the corresponding building permit to defendant. The case
as against the members of the Municipal Council was subsequently dismissed with concurrence of
plaintiff's council. After trial, the Court of First Instance of Romblon rendered judgment dismissing the
complaint and ordering plaintiff to pay defendant the sum of P12,500.00 by way of compensatory,
exemplary, moral and moderate damages.
On appeal, the Court of Appeals set aside the decision of the Court of First Instance of Romblon and
enjoined defendant from constructing his building unless "he erects the same at a distance of not
less than three meters from the boundary line of his property, in conformity with Article 673 of the
New Civil Code."
So Juan Gargantos filed this petition for review of the appellate Court's decision. The focal issue
herein is whether the property of respondent Tan Yanon has an easement of light and view against
the property of petitioner Gargantos.
The kernel of petitioner's argument is that respondent never acquired any easement either by title or
by prescription. Assuredly, there is no deed establishing an easement. Likewise, neither petitioner
nor his predecessors-in-interest have ever executed any deed whereby they recognized the
existence of the easement, nor has there been final judgment to that effect. Invoking our decision
in Cortes vs. Yu-Tibo (2 Phil., 24), petitioner maintains that respondent has not acquired an
easement by prescription because he has never formally forbidden petitioner from performing any
act which would be lawful without the easement, hence the prescriptive period never started.
It is obvious, however, that Article 538, O.C.C. (now Article 621, N.C.C.) and the doctrine in the Yu-
Tibo case are not applicable herein because the two estates, that now owned by petitioner, and that
owner by respondent, were formerly owned by just one person, Francisco Sanz. It was Sanz who
introduced improvements on both properties. On that portion presently belonging to respondent, he
constructed a house in such a way that the northeastern side thereof extends to the wall of
the camarin on the portion now belonging to petitioner. On said northeastern side of the house, there
are windows and doors which serve as passages for light and view. These windows and doors were
in existence when respondent purchased the house and lot from Sanz. The deed sale did not
provide that the easement of light and view would not be established. This then is precisely the case
covered by Article 541, O.C.C (now Article 624, N.C.C) which provides that the existence of an
apparent sign of easement between two estates, established by the proprietor of both, shall be
considered, if one of them is alienated, as a title so that the easement will continue actively and
passively, unless at the time the ownership of the two estate is divided, the contrary is stated in the
deed of alienation of either of them, or the sign is made to disappear before the instrument is
executed. The existence of the doors and windows on the northeastern side of the aforementioned
house, is equivalent to a title, for the visible and permanent sign of an easement is the title that
characterizes its existence (Amor vs. Florentino, 74 Phil., 403). It should be noted, however, that
while the law declares that the easement is to "continue" the easement actually arises for the first
time only upon alienation of either estate, inasmuch as before that time there is no easement to
speak of, there being but one owner of both estates (Articles 530, O.C.C., now Articles 613, N.C.C).
We find that respondent Tan Yanon's property has an easement of light and view against petitioner's
property. By reason of his easement petitioner cannot construct on his land any building unless he
erects it at a distance of not less than three meters from the boundary line separating the two
estates.
Wherefore, the appealed decision is hereby affirmed with costs against petitioner.









G.R. No. L-66520 August 30, 1988
EDUARDO C. TAEDO, petitioner,
vs.
HON. JUANITO A. BERNAD, Presiding Judge of the Regional Trial Court, 7th Judicial Region,
Branch XXI, Cebu City; Spouses ROMEO SIM and PACITA S. SIM; and Spouses ANTONIO
CARDENAS and MAE LINDA CARDENAS, respondents.
Numeriano F. Capangpangan for petitioner.
Meinrado P. Parades for private respondents.

PADILLA, J .:
This is a petition for review on certiorari of the Order issued by the respondent judge, Hon. Juanita
A. Bernad on 5 December 1983, which dismissed the complaint for legal redemption filed by the
petitioner in Civil Case No. CEB-994 of the Regional Trial Court of Cebu, and the Order of the same
respondent judge, dated 20 January 1984, which denied petitioner's motion for reconsideration.
The facts, in brief, are as follows:
The private respondent Antonio Cardenas was the owner of two (2) contiguous parcels of land
situated in Cebu City which he had inherited from Lourdes Cardenas and more particularly known as
Lot 7501-A, with an area of 140 square meters and Lot 7501-B, with an area of 612 square meters.
On Lot 7501-A is constructed an apartment building, while the improvements on Lot 7501-B consist
of one four-door apartment of concrete and strong materials; one two-storey house of strong
materials; a bodega of strong materials; and a septic tank for the common use of the occupants of
Lots 7501-A and 7501-B. A small portion of the apartment building on Lot 7501-A also stands on Lot
7501-B.
On 5 February 1982, said Antonio Cardenas sold Lot 7501-A to herein petitioner Eduardo C.
Taedo.
1

Antonio Cardenas, on that same day, also mortgaged Lot 7501-B to said Eduardo C. Taedo as a
security for the payment of a loan in the amount of P10,000.00.
2

Antonio Cardenas further agreed that he would sell Lot 7501-B only to Eduardo Taedo in case he
should decide to sell it, as the septic tank in Lot 7501-B services Lot 7501-A and the apartment
building on Lot 7501-A has a part standing on Lot 7501-B. This was confirmed in a letter, dated 26
February 1982, wherein Antonio Cardenas asked Taedo not to deduct the mortgage loan of
P10,000.00 from the purchase price of Lot 7501-A "because as we have previously agreed, I will sell
to you Lot 7501-B."
3

Antonio Cardenas, however, sold Lot 7501-B to the herein respondent spouses Romeo and Pacita
Sim.
4
Upon learning of the sale, Eduardo Taedo offered to redeem the property from Romeo Sim. But
the latter refused. Instead, Romeo Sim blocked the sewage pipe connecting the building of Eduardo
Taedo built on Lot 7501-A, to the septic tank in Lot 7501-B. He also asked Taedo to remove that
portion of his building enroaching on Lot 7501-B. As a result, Eduardo Taedo, invoking the provisions of
Art. 1622 of the Civil Code, filed an action for legal redemption and damages, with a prayer for the
issuance of a writ of preliminary injunction, before the Regional Trial Court of Cebu, docketed therein as
Civil Case No. CEB-994, against the spouses Romeo and Pacita Sim, Antonio Cardenas and his wife
Mae Linda Cardenas, the Register of Deeds of Cebu City, and Banco Cebuano, Cebu City Development
Bank.
5

Answering, the spouses Romeo and Pacita Sim claimed that they are the absolute owners of Lot
7501-B and that Eduardo Taedo has no right to redeem the land under Art. 1622 of the Civil Code
as the land sought to be redeemed is much bigger than the land owned by Taedo.
6

Antonio Cardenas, upon the other hand, admitted that he had agreed to sell Lot 7501-B to Eduardo
Taedo and claimed by way of cross-claim against the spouses Romeo and Pacita Sim that the
Deed of Sale he had executed in favor of said spouses was only intended as an equitable mortgage,
to secure the payment of amounts received by him from said spouses as petty loans .
7

In answer to the cross-claim, the spouses Romeo and Pacita Sim insisted that the sale executed by
Antonio Cardenas of Lot 7501-B in their favor was an absolute one.
8

Thereafter, or on 14 October 1983, the spouses Romeo and Pacita Sim filed motions to dismiss the
complaint and the cross-claim, for lack of cause of action.
9

Acting upon these motions and other incidental motions, the respondent judge issued the questioned
order of 5 December 1983 dismissing the complaint and cross-claim.
10

Taedo filed a motion for reconsideration of the order, but his motion was denied on 20 January
1984.
11

Hence, the present recourse by petitioner Tanedo.
The Court finds merit in the petition. The dismissal of the complaint on the ground of lack of cause of
action, is precipitate. The settled rule where dismissal of an action is sought on the ground that the
complaint does not state a cause of action is, that the insufficiency of the cause of action must
appear on the face of the complaint. And the test of the sufficiency of the ultimate facts alleged in the
complaint to constitute a cause of action, is whether or not, admitting the facts alleged, the court can
render a valid judgment upon the same in accordance with the prayer of the complaint. For this
purpose, the movant is deemed to admit hypothetically the truth of the facts thus averred.
12

In the instant case, it cannot be denied that petitioner Tanedo cannot redeem the entire Lot 7501-B
from the spouses Romeo and Pacita Sim pursuant to the provisions of Art. 1622 Romeo and Pacita
Sim pursuant to the provisions of Art. 1622 of the Civil Code, since the lot sought to be redeemed,
has an area of 612 square meters which is much bigger, area-wise, than the lot owned by petitioner
Taedo. However, the petitioner seeks to purchase only that small portion of Lot 7501-B occupied by
his apartment building, because the spouses Romeo and Pacita Sim had told him to remove that
portion of his building which enroaches upon Lot 7501-B. Whether or not this is possible should have
been determined at the pre-trial stage or trial on the merits.
Besides, the action of petitioner Taedo is also one for recovery of damages by reason of breach of
promise by the respondent Antonio Cardenas to sell Lot 7501-B. Paragraphs 3 and 4 of the
amended complaint read, as follows:
3. That by written agreement, plaintiff and defendant spouses Antonio Cardenas and
Mae Linda Cardenas agreed that in the event they decide to sell the adjacent Lot No.
7501-B of the subdivision plan (LRC) Psd. 23638, a portion of Lot No. 7501 of the
cadastral survey of Cebu, LRC (GLRC) Cad. Record No. 9465, situated in the City of
Cebu, containing an area of SIX HUNDRED TWELVE (612) Square meters more or
less which lot is adjacent to Lot No. 7501-A of the plaintiff and where part of the
plaintiffs apartment is standing on, the same should be sold to the plaintiff, but far
from compliance of the written agreement, defendant spouses Antonio Cardenas and
Mae Linda Cardenas sureptiously[sic] sold the aforestated Lot No. -7501-B- to the
defendant spouses, Romeo Sim and Pacita Sim on July 23, 1982 as per Deed of
Sale notarized by Notary Public, Jorge S. Omega and entered in his Notarial
Register as Doc. No. 462; Page No. -94- Book No. 11, Series of 1982;
4. That due to the sale by the defendant spouses Antonio Cardenas and Mae Linda
Cardenas of the property in question to spouses Romeo Sim and Pacita Lim, plaintiff
suffered moral damages in the form of mental anguish, sleepless nights, mental
torture, for which he is entitled to a compensation in the amount to
be established during the trial of the case and has incurred litigation
expenses subject for reimbursentent and attorneys fee in the sum of
P10,000.00 which should be chargeable to both defendant spouses;
13

and the plaintiff (herein petitioner) prayed, among others: "(c) That defendant spouses Romeo Sim
and Pacita Sim and spouses Antonio Cardenas and Mae Linda Cardenas be ordered to pay plaintiff
moral damages, litigation expenses and attorneys fees in the amount of P50,000.00."
14

That there was a written agreement, as alleged in the complaint, between the plaintiff Eduardo
Taedo and the defendant Antonio Cardenas is admitted by the latter. In his answer, he alleged the
following:
ALLEGATIONS as to written agreement is ADMITTED, but, specifically denies that
herein defendants SUREPTIOUSLY [sic] SOLD the lot in question to the other
defendant Spouses Sim the truth is, that the herein defendants [sic] was required to
execute the Deed of Sale described in this paragraph 3 as security for the personal
loans and other forms of indebtedness incurred from the Spouses Sims but never as
a conveyance to transfer ownership;
15

Considering this admission of defendant Cardenas, and that his promise to sell Lot 7501-B to
Eduardo Taedo appears to be for a valuable consideration, a trial is necessary to determine, at the
very least, the amount of damages suffered by the plaintiff Eduardo Tafiedo by reason of such
breach of promise to sell, if indeed there is such a breach.
Moreover, the finding of the trial court that petitioner Taedo's right to continue to use the septic
tank, erected on Lot 7501-B, ceased upon the subdivision of the land and its subsequent sale to
different owners who do not have the same interest,
16
also appears to be contrary to law. Article 631 of
the Civil Code enumerates the grounds for the extinguishment of an easement. Said article provides:
Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the dominant and servient
estates;
(2) By non-user for ten years; with respect to discontinuous easements, this period
shall be computed from the day on which they ceased to be used; and, with respect
to continuous easements, from the day on which an act contrary to the same took
place;
(3) When either or both of the estates fall into such condition that the easement
cannot be used; but it shall revive if the subsequent condition of the estates or either
of them should again permit its use, unless when the use becomes possible,
sufficient time for prescription has elapsed, in accordance with the provisions of the
preceding number;
(4) By the expiration of the term or the fulfillment of the conditions, if the easement is
temporary or conditional;
(5) By the renunciation of the owner of the dominant estate;
(6) By the redemption agreed upon between the owners of the dominant and servient
estates.
As can be seen from the above provisions, the alienation of the dominant and servient estates to
different persons is not one of the grounds for the extinguishment of an easement. On the contrary,
use of the easement is continued by operation of law. Article 624 of the Civil Code provides:
Art. 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 the easement may continue actively and
passively, unless, at the time the ownership of the two estates is divided, the contrary
should be provided in the title of conveyance of either of them, or the sign aforesaid
should be removed before the execution of the deed. This provision shall also apply
in case of the division of a thing owned in common by two or more persons.
In the instant case, no statement abolishing or extinguishing the easement of drainage was
mentioned in the deed of sale of Lot 7501-A to Eduardo Taedo. Nor did Antonio Cardenas stop the
use of the drain pipe and septic tank by the occupants of Lot 7501-A before he sold said lot to
Eduardo Tafiedo. Hence, the use of the septic tank is continued by operation of law. Accordingly, the
spouses Romeo and Pacita Sim the new owners of the servient estate (Lot 7501- B), cannot impair,
in any manner whatsoever, the use of the servitude.
17

WHEREFORE, the Orders complained of are hereby REVERSED and SET ASIDE. The respondent
judge or another one designated in his place is directed to proceed with the trial of this case on the
merits. With costs against private respondents.
SO ORDERED.






G.R. No. 77628 March 11, 1991
TOMAS ENCARNACION, petitioner,
vs.
THE HONORABLE COURT OF APPEALS and THE INTESTATE ESTATE OF THE LATE
EUSEBIO DE SAGUN and THE HEIRS OF THE LATE ANICETA MAGSINO VIUDA DE
SAGUN,* respondents.
Esteban M. Mendoza for petitioner.
Oscar Gozos for private respondents.

FERNAN, C.J .:p
Presented for resolution in the instant petition for review is the not-so-usual question of whether or
not petitioner is entitled to a widening of an already existing easement of right-of-way. Both the trial
court and the Appellate Court ruled that petitioner is not so entitled, hence the recourse to this Court.
We reverse.
The facts are undisputed.
Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta Magsino Viuda de
Sagun are the owners of two adjacent estates situated in Buco, Talisay, Batangas. ** Petitioner
owns the dominant estate which has an area of 2,590 square meters and bounded on the North by
Eusebio de Sagun and Mamerto Magsino, on the south by Taal Lake, on the East by Felino
Matienzo and on the West by Pedro Matienzo. Private respondents co-own the 405-square-meter
servient estate which is bounded on the North by the National Highway (Laurel-Talisay Highway), on
the South by Tomas Encarnacion, on the East by Mamerto Magsino and on the West by Felipe de
Sagun. In other words, the servient estate stands between the dominant estate and the national
road.
Prior to 1960, when the servient estate was not yet enclosed with a concrete fence, persons going to
the national highway just crossed the servient estate at no particular point. However, in 1960 when
private respondents constructed a fence around the servient estate, a roadpath measuring 25
meters long and about a meter wide was constituted to provide access to the highway. One-half
meter width of the path was taken from the servient estate and the other one-half meter portion was
taken from another lot owned by Mamerto Magsino. No compensation was asked and non was given
for the portions constituting the pathway.
1

It was also about that time that petitioner started his plant nursery business on his land where he
also had his abode. He would use said pathway as passage to the highway for his family and for his
customers.
Petitioner's plant nursery business through sheer hard work flourished and with that, it became more
and more difficult for petitioner to haul the plants and garden soil to and from the nursery and the
highway with the use of pushcarts. In January, 1984, petitioner was able to buy an owner-type jeep
which he could use for transporting his plants. However, that jeep could not pass through the
roadpath and so he approached the servient estate owners (Aniceta Vda. de Sagun and Elena
Romero Vda. de Sagun) and requested that they sell to him one and one-half (1 1/2) meters of their
property to be added to the existing pathway so as to allow passage for his jeepney. To his utter
consternation, his request was turned down by the two widows and further attempts at negotiation
proved futile.
Petitioner then instituted an action before the Regional Trial Court of Batangas, Branch 6 (Tanauan)
to seek the issuance of a writ of easement of a right of way over an additional width of at least
two (2) meters over the De Saguns' 405-square-meter parcel of land.
2

During the trial, the attention of the lower court was called to the existence of another exit to the
highway, only eighty (80) meters away from the dominant estate. On December 2, 1985, the lower
court rendered judgment dismissing petitioner's complaint. It ruled:
It is clear, therefore, that plaintiff at present has two outlets to the highway: one,
through the defendants' land on a one meter wide passageway, which is bounded on
both sides by concrete walls and second, through the dried river bed eighty meters
away. The plaintiff has an adequate outlet to the highway through the dried river bed
where his jeep could pass.
The reasons given for his claim that the one-meter passageway through defendants'
land be widened to two and one-half meters to allow the passage of his jeep,
destroying in the process one of the concrete fences and decreasing defendants'
already small parcel to only about 332.5 square meters, just because it is nearer to
the highway by 25 meters compared to the second access of 80 meters or a
difference of only 65 meters and that passage through defendants' land is more
convenient for his (plaintiffs) business and family use are not among the conditions
specified by Article 649 of the Civil Code to entitle the plaintiff to a right of way for the
passage of his jeep through defendant's land.
3

On appeal, the Court of Appeals affirmed the decision of the trial court on January 28, 1987 and
rejected petitioner's claim for an additional easement.
In sustaining the trial court, the Court of Appeals opined that the necessity interposed by petitioner
was not compelling enough to justify interference with the property rights of private respondents. The
Appellate Court took into consideration the presence of a dried river bed only eighty (80) meters
away from the dominant estate and conjectured that petitioner might have actually driven his jeep
through the river bed in order to get to the highway, and that the only reason why he wanted a wider
easement through the De Sagun's estate was that it was more convenient for his business and
family needs.
After evaluating the evidence presented in the case, the Court finds that petitioner has sufficiently
established his claim for an additional easement of right of way, contrary to the conclusions of the
courts a quo.
While there is a dried river bed less than 100 meters from the dominant tenement, that access is
grossly inadequate. Generally, the right of way may be demanded: (1) when there is absolutely no
access to a public highway, and (2) when, even if there is one, it is difficult or dangerous to use or is
grossly insufficient. In the present case, the river bed route is traversed by a semi-concrete bridge
and there is no ingress nor egress from the highway. For the jeep to reach the level of the highway,
it must literally jump four (4) to five (5) meters up. Moreover, during the rainy season, the river bed is
impassable due to the floods. Thus, it can only be used at certain times of the year. With the
inherent disadvantages of the river bed which make passage difficult, if not impossible, it is if there
were no outlet at all.
Where a private property has no access to a public road, it has the right of easement over adjacent
servient estates as a matter of law.
4

With the non-availability of the dried river bed as an alternative route to the highway, we transfer our
attention to the existing pathway which straddles the adjoining properties of the De Sagun heirs and
Mamerto Magsino.
The courts below have taken against petitioner his candid admission in open court that he needed a
wider pathway for the convenience of his business and family. (TSN, August 2, 1985, pp. 24-26). We
cannot begrudge petitioner for wanting that which is convenient. But certainly that should not detract
from the more pressing consideration that there is a real and compelling need for such servitude in
his favor.
Article 651 of the Civil Code provides that "(t)he width of the easement of right of way shall be that
which is sufficient for the needs of the dominant estate, and may accordingly be changed from time
to time." This is taken to mean that under the law, it is the needs of the dominant property which
ultimately determine the width of the passage. And these needs may vary from time to time. When
petitioner started out as a plant nursery operator, he and his family could easily make do with a few
pushcarts to tow the plants to the national highway. But the business grew and with it the need for
the use of modern means of conveyance or transport. Manual hauling of plants and garden soil and
use of pushcarts have become extremely cumbersome and physically taxing. To force petitioner to
leave his jeepney in the highway, exposed to the elements and to the risk of theft simply because it
could not pass through the improvised pathway, is sheer pigheadedness on the part of the servient
estate and can only be counter-productive for all the people concerned. Petitioner should not be
denied a passageway wide enough to accomodate his jeepney since that is a reasonable and
necessary aspect of the plant nursery business.
We are well aware that an additional one and one-half (1 1/2) meters in the width of the pathway will
reduce the servient estate to only about 342.5 square meters. But petitioner has expressed
willingness to exchange an equivalent portion of his land to compensate private respondents for their
loss. Perhaps, it would be well for respondents to take the offer of petitioner seriously.
5
But unless
and until that option is considered, the law decrees that petitioner must indemnify the owners of the
servient estate including Mamerto Magsino from whose adjoining lot 1/2 meter was taken to constitute the
original path several years ago. Since the easement to be established in favor of petitioner is of a
continuous and permanent nature, the indemnity shall consist of the value of the land occupied and the
amount of the damage caused to the servient estate pursuant to Article 649 of the Civil Code which states
in part:
Art. 649. The owner, or any person who by virtue of a real right may cultivate or use
any immovable, which is surrounded by other immovables pertaining to other
persons and without adequate outlet to a public highway, is entitled to demand a
right of way through the neighboring estates, after payment of the proper indemnity.
Should this easement be established in such a manner that its use may be
continuous for all the needs of the dominant estate, establishing a permanent
passage, the indemnity shall consist of the value of the land occupied and the
amount of the damage caused to the servient estate.
xxx xxx xxx
WHEREFORE, in conformity with the foregoing discussion, the appealed decision of the Court of
Appeals dated January 28, 1987 is REVERSED and SET ASIDE. Petitioner Tomas Encarnacion is
hereby declared entitled to an additional easement of right of way of twenty-five (25) meters long by
one and one-half (1 1/2) meters wide over the servient estate or a total area of 62.5 square meters
after payment of the proper indemnity.
SO ORDERED.






















G.R. No. 75905 October 12, 1987
REMIGIO O. RAMOS, SR., petitioner,
vs.
GATCHALIAN REALTY, INC., EDUARDO ASPREC, and COURT OF APPEALS, respondents.

GUTIERREZ, JR., J .:
In this petition for review on certiorari, the petitioner assails the decision of the Court of Appeals
dated August 29, 1986 which affirmed the November 14, 1984 order of the Regional Trial Court,
Branch CXI at Pasay City dismissing the petitioner's civil action for a right of way with prayer for
preliminary injunction.
Petitioner Ramos is the owner of a house and lot containing an area of 901 square meters covered
by Transfer Certificate of Title No. 14927 situated at Barrio San Dionisio, Paraaque, Metro Manila.
The lot was acquired by the petitioner from Science Rodriguez Lombos Subdivision In the
subdivision survey plan of Lot 4133-G, (LRC) PSD-172544, the lot is more particularly described as
Lot 4133-G-11 (Exhibits "1" and "1-A "). Two road lots abut petitioner's property namely lot 4133-G-
12 with an area of 2,160 square meters clearly appearing as a proposed road in the Lombos
subdivision plan and Lot 4135 of the Paraaque Cadastre now known as Pambansa Road but more
commonly referred to as Gatchalian Avenue.
Respondents Asprec own Lot 4135. Gatchalian Avenue is alongside Lot 4135. Respondent
Gatchalian Realty was granted the road right of way and drainage along Lot 4135 to service the
Gatchalian and Asprec subdivision, by the respondent Asprecs.
The records of this case disclose that on April 30, 1981, a complaint for an easement of a right of
way with preliminary mandatory injunction was filed by Ramos against the private respondents.
Among the allegations in the complaint are:
... that he (referring to the petitioner) constructed his house at 27 Gatchalian Avenue
(also known as Pambansa Road), Paranaque, and has since resided therein with his
family from 1977 up to the present; that during construction of the house, Gatchalian
Realty, Inc. built a 7-8, feet high concrete wall right infront of appellant's premises,
blocking his entrance/exit to Gatchalian Road, the nearest, most convenient and
adequate entrance/exit to the public road. or highway, formerly Sucat Road but now
known as Dr. A. Santos Avenue, Paraaque; that this house and lot is only about
100 meters from Sucat, Road passing thru Gatchalian Avenue; that prior to this,
appellant and his counsel addressed separate request/demand letters (Exh. A and
Annex B) to defendant company to allow him to exercise a right of way on the subject
premises; that in September 1977, a meeting/conference was held between
appellant and his counsel on one hand and Mr. Roberto Gatchalian and counsel on
the other, during which defendant Corporation manifested its conformity to grant
appellant the requested right of way upon payment of proper indemnity, with the
request that appellant inform defendants Asprec of their aforesaid agreement; that
consequently, appellant wrote Mr. Cleto Asprec on September 16, 1977 (Exh. D);
that with the construction of the 7-8 feet concrete wall appellant and his family have
been constrained to pass through the back portion of their lot bounded by other lots
belonging to different owners, which is grassy and cogonal as temporary
ingress/egress with great inconvenience and hardship, and this becomes all the
more pronounced during the rainy season due to flood and mud (Exhs. B-1, B-1-A,
B-2; B-2-A, B-3, B-3-A, B-3-B and B-4); and, lastly, that the aforesaid concrete wall is
dangerously leaning towards appellant's premises posing great danger or hazard.
(Court of Appeals Decision, p. 3, Rollo, p. 39)
On May 20, 1981, the respondent corporation filed a motion to dismiss on grounds of lack of cause
of action and bar by prior judgment alleging that the complaint was merely a reproduction of that filed
on October 26, 1972 in Civil Case No. 5930-P which was dismissed on October 30, 1980 for failure
to prosecute within a reasonable length of time. Respondents Asprec later joined the respondent
company in its motion to dismiss and adopted the grounds and arguments stated therein.
On November 20, 1981, after the petitioner had filed his opposition to the above motions, the lower
court issued its order denying the motion to dismiss on the ground that the order dismissing the
earlier case was not an adjudication on the merits.
On November 26, 1981, the petitioner filed an urgent exparte motion for the issuance of a
preliminary mandatory injunction as well as a preliminary prohibitory injunction. On the same day,
the lower court set the motion for hearing on December 1, 1981, later reset to December 10, 1981,
and ordered that:
In the meantime, pending determination of the application on the merits and in order
that the reliefs sought therein may not be rendered moot and academic, the
defendants and all persons acting upon their orders are hereby temporarily enjoined
from building, constructing and/or erecting a wall, fence or any enclosure adjoining or
abutting plaintiff's premises and/or from restraining, preventing or prohibiting the
plaintiff, his family or persons residing in his premises as well as any person/s who
may have any dealing or business with them from using, passing and/or traversing
the said Gatchalian Avenue in going to or returning from the plaintiff's premises and
in going to or returning from Sucat Road via Gatchalian Avenue, until further orders
from this Court. (Order dated November 26,1981, Records, p. 66).
On December 1, 1981, Gatchalian Realty filed its answer and averred, among others, that:
xxx xxx xxx
Defendant Corporation has never entered into a verbal agreement with plaintiff to
grant the latter a road right of way;
xxx xxx xxx
The so-called Gatchalian Avenue or Palanyag Road is not a public road but a private
street established and constructed by the defendant Corporation intended for the
sole and exclusive use of its residents and lot buyers of its subdivisions, as well as of
the subdivisions owned and operated by the various naked owners of the different
portions constituting the entire length and breadth of said street;
If plaintiff's property referred to in the complaint is Lot No. 4133-G-11, (LRC) Psd-
229001 (sic), then a grant of a right of way to plaintiff is not a legal necessity,
because such lot has an eating road right of way, more particularly Lot 4133-G-12,
towards Dr. Arcadio Santos Avenue(Sukat Road);
xxx xxx xxx
The opening of Gatchalian Avenue to the property of plaintiff will unduly cause great
prejudice to defendant Corporation as it can no longer effectively regulate the use of
the said private road; ...
Assuming, though not admitting, that plaintiff may be granted a right of way, still the
reasonable compensation for such grant would be some P800,000.00, as such
portion of Gatchalian Avenue consists of some 2,000 square meters of prime and
valuable property which could readily command a market value of P400.00 per
square meter; moreover, plaintiff still has to shoulder his proportionate share of the
expenses and upkeep of such street and the real estate taxes imposed thereon.
(Answer of Gatchalian Realty, Inc., Records, pp. 81-82).
On December 2, 1981, respondent Asprec filed their answer which basically contained the same
averments as that of the realty company.
At the hearing of the petitioner's application for issuance of a writ of preliminary injunction to compel
the private respondents to remove the wall constructed right in front of the petitioner's premises
barring him access to Gatchalian Avenue, both parties presented oral and documentary evidence to
support their respective positions. After the hearing, the lower court issued the following order:
Plaintiff is given fifteen (15) days to file a memorandum and the defendant is given
another fifteen days from receipt thereof to file a reply, after which the case shall be
deemed submitted for resolution. So ordered. (TSN, December 10, 1981, p. 57)
After compliance by both parties with the above order, the lower court, on July 9, 1982, rendered a
decision the dispositive part of which reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants ordering the latter to grant the former a right of way through Palanyag
Road to and from Don Arcadio Santos Avenue and to and from his residence, upon
payment by the plaintiff to the defendants Asprecs the sum of P5,000 as indemnity
therefor and under the following terms and conditions to wit: (1) the easement
created shall be only in favor of the plaintiff, members of his family and person or
persons dealing with them; and (2) the opening to be created through the concrete
wall separating plaintiff's residence and Palanyag Road shall only be three (3) meters
wide and shall be provided by an iron gate by the plaintiff all at the expense of the
plaintiff. Without pronouncement as to costs and damages. (Rollo, p. 30)
Thereafter, the respondent company filed a motion to set aside and/or reconsider the lower court's
decision for being premature since only the application for the writ of injunction was heard and
submitted for resolution and not the entire case. Respondents Asprec, likewise, filed a motion for
reconsideration mainly on the ground that the lower court's grant of a right of way through Gatchalian
Avenue in petitioner's favor would be in derogation of the "Contract of Easement of Road Right-of-
Way and of Drainage" executed between them and Gatchalian Realty.
In his opposition to both motions, the petitioner argued that on the basis of the transcript of steno
graphic notes taken on December 10, 1981, it was clear that both parties submitted the entire case
for resolution inasmuch as the pieces of evidence for the injunction and for the main case were the
same and there was nothing left to be presented. Thus, in effect, the petitioner contended that the
lower court's decision dated July 9, 1982 was an adjudication on the merits.
On July 8, 1983, the lower court under a new judge by virtue of the reorganization of the judiciary,
issued an order setting aside and vacating its previous decision dated July 9, 1982 on the ground
that the same was "rendered prematurely as the defendants had not presented their evidence on the
main evidence."
After the petitioner had rested his case, the respondent company filed a motion to dismiss based on
the insufficiency of the evidence adduced by the petitioner. An opposition to said motion, was,
thereafter, filed by the petitioner.
On November 14, 1984, the lower court, acting on the respondent company's motion to dismiss,
issued an order with the following tenor:
WHEREFORE, finding the motion to dismiss of defendant corporation Gatchalian
Realty, Inc. to be impressed with merit, the same is hereby granted. For insufficiency
of evidence, plaintiff's complaint is hereby dismissed, without pronouncement as to
costs. (Rollo, p. 34)
The Court of Appeals on August 29, 1986, found that the petitioner failed to establish the existence
of the pre-conditions in order that he could legally be entitled to an easement of a right of way. It
affirmed the lower court's order dated November 14, 1984 in all respects, with costs against the
petitioner.
Hence, this petition which presents the following assignment of errors:
I
PUBLIC RESPONDENT ERRED IN AFFIRMING I-IV TOTO THE ORDER OF DISMISSAL OF THE
TRIAL COURT IN ALL RESPECTS WITH COSTS AGAINST THE PETITIONER.
II
PUBLIC RESPONDENT ERRED IN ITS DECISION TO THE EFFECT THAT PETITIONER HAS
NOT SUFFICIENTLY MET THE REQUIREMENTS OF THE LAW AND IN FAILING TO PROVE HIS
RIGHT OF WAY THROUGH GATCHALIAN AVENUE OR PALANYAG ROAD AGAINST THE
RESPONDENTS HEREIN;
III
PUBLIC RESPONDENT ERRED IN FAILING TO SET ASIDE THE ORDER OF THE TRIAL COURT,
AND NOT ADOPTING THE DECISION OF THE TRIAL COURT DATED JULY 9,1982 GRANTING
TO PETITIONER A RIGHT OF WAY IN THE SUBJECT PREMISES. (Rollo, pp. 14-15)
These assigned errors center on the issue of whether or not the petitioner has successfully shown
that all the requisites necessary for the grant of an easement of a right of way in his favor are
present.
An easement or servitude in an encumbrance imposed upon an immovable for the benefit of another
immovable belonging to a different owner as defined in Article 613 of the Civil Code. It is established
either by law, in which case it is called legal or by the will of the parties, in which event it is a
voluntary easement. (See Article 619, Civil Code of the Philippines; City of Manila vs. Entote, 57
SCRA 497, 503).
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 the petitioner is entitled to a legal or compulsory easement of a right of way.
In the case of Bacolod-Murcia Milling Company, Inc. vs. Capitol Subdivision Inc., et al. (17 SCRA
731, 735-6), we held that:
... the Central had to rely strictly on its being entitled to a compulsory servitude of
right of way, under the Civil Code, and it could not claim any such servitude without
first establishing the pre-conditions for its grant fixed by Articles 649 and 650 of the
Civil Code of the Philippines:
(1) That it is surrounded by other immovables and has no adequate
outlet to a public highway (Art. 649, par. 1);
(2) After payment of proper indemnity (Art. 649, p. 1. end);
(3) That the isolation was not due to the Central's own acts (Art. 649,
last par.); and
(4) That the right of way claimed is "at the point least prejudicial to the
servient estate; and insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may be the
shortest." (Art. 650).
By express provision of law, therefore, a compulsory right of way can not be obtained
unless the four requisites enumerated are first shown to exist, and the burden of
proof to show their existence was on the Central. (See also Angela Estate, Inc. vs.
Court of First Instance of Negros Occidental 24 SCRA 500, 510)
On the first requisite, the petitioner contends that since the respondent company constructed the
concrete wall blocking his ingress and egress via the Gatchalian Avenue, the "nearest, most
convenient and adequate road" to and from a public highway, he has been constrained to use as his
"temporary" way the adjoining lots belonging to different persons. Said way is allegedly "bumpy and
impassable especially during rainy seasons because of flood waters, mud and tall 'talahib' grasses
thereon." Moreover, according to the petitioner, the road right of way which the private respondents
referred to as the petitioner's alternative way to Sucat Road is not an existing road but has remained
a proposed road as indicated in the subdivision plan of the Sobrina Rodriguez Lombos Subdivision.
The petitioner's position is not impressed with merit. We find no reason to disturb the appellate
court's finding of fact that the petitioner failed to prove the non-existence of an adequate outlet to the
Sucat Road except through the Gatchalian Avenue. As borne out by the records of the case, there is
a road right of way provided by the Sabrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-
12 in its subdivision plan for the buyers of its lots. The fact that said lot is still undeveloped and
causes inconvenience to the petitioner when he uses it to reach the public highway does not bring
him within the ambit of the legal requisite. We agree with the appellate court's observation that the
petitioner should have, first and foremost, demanded from the Sabrina Rodriguez Lombos
Subdivision the improvement and maintenance of Lot 4133-G-12 as his road right of way because it
was from said subdivision that he acquired his lot and not either from the Gatchalian Realty or the
respondents Asprec. 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)
Considering that the petitioner has failed to prove the existence of the first requisite as aforestated,
we find it unnecessary to discuss the rest of the preconditions for a legal or compulsory right of way.
Once again, we apply the rule that findings of facts of the Court of Appeals are binding on the
Supreme Court and who not be overturned when supported by the evidence on record save in the
known exceptions such as gross misappreciation of the evidence or misapprehension of facts. (See
Community Savings and Loan Association, Inc. vs. Court of Appeals, et al., G.R. No. 75786
promulgated on August 31, 1987; Regalario vs. Northwest Finance Corporation, 117 SCRA 45;
Agton vs. Court of Appeals, 113 SCRA 322).
WHEREFORE, in view of the foregoing, the petition is hereby DISMISSED for lack of merit. The
questioned decision of the Court of Appeals is AFFIRMED.
SO ORDERED.















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.
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 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
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.
1
7
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.
SO ORDERED.