EASEMENTS AND SERVITUDES (Arts. 613-693 NCC).

a) Easements

Cid v. Javier, 108 Phil 239; G.R. No. L-14116. June 30,
1960.
Notarial prohibition is required to start the running of
prescription. Also Registration of the Immovable without the
registration of the easement extinguishes the easement.
FACTS: The easement in dispute here is an easement of light
and view, which is a negative easement. The respondents
Javier, et al are the owners of the building standing on their
lot with windows overlooking the adjacent lot. Respondents
have claimed that they had acquired by prescription an
enforceable easement of light and view arising from a verbal
prohibition to obstruct such view and light. The lower courts
have ruled in their favor.
Note: easement of light and view is continuous and apparent
so it is subject to prescription.
ISSUES: Whether or not the respondents Irene P. Javier, et al.,
owners of a building standing on their lot with windows
overlooking the adjacent lot, had acquired by prescription an
enforceable easement of light and view arising from a verbal
prohibition to obstruct such view and light, alleged to have
been made upon petitioners predecessor-in-interest as owner
of the adjoining lot, both of which lots being covered by
Torrens titles.
RULING: NO. Art538s requirement is a formal act and not
just any verbal or written act. Formal act contemplated in
art538 in the OLD Civil Code pertains to an instrument
acknowledged before a notary public. Prescription for a
negative easement only begins when there is a notarial
prohibition by the dominant estate. Respondents could have
not acquired the easement by prescription because they have
not fulfilled this requirement. Even assuming they have
acquired it, the easement no longer exists because the
properties were registered under the Torrens system without
any annotation or registration of the said easement.

Francisco v. Paez, 54 Phil 239; G.R. No. 31118.

January 14, 1930.

Benedicto v. Court of Appeals, 134 Phil 122; G.R. No.

L-22733. September 25, 1968,|

Iloilo Cold Storage v. Municipal Council, 24 Phil 471;

G.R. No. 7012. March 26, 1913.
FACTS: Iloilo Cold Storage (Iloilo) constructed an ice and cold
storage plant in the city of Iloilo. The nearby residents started
to complain that the smoke from the plant was very injurious
to their health and comfort. The Municipal council then
ordered to investigate through a committee and they reported
that the complaints were well-founded.
The Municipal Council then passed a resolution ordering Iloilo
to elevate the smokestacks and if not done they were required
to close or suspend operations. Sec. 39 (j) of the Municipal
code to declare and abate nuisances. Iloilo then filed this
action
ISSUE: W/N the Municipal Council has the right to declare the
plant a nuisance as operated and abate it
HELD: No!
RATIO: Nuisances anything that worketh hurt,
inconvenience, or damage. Nuisances are of 2 classes:
Nuisances per se unquestionably and under all
circumstances nuisances such as gambling houses and etc.
and Nuisances per accidens.

The authority to decide when a nuisance exists is a judicial

function. To say to a man that he shall not use his property
under certain conditions is to deprive him protanto of the
enjoyment of such property. The necessity must be present to
justify the exercise of the right and must be submitted to a
jury under the guidance of the court (Rutton vs. City of
Camden).
If the authorities of a city abate a nuisance under authority of
an ordinance of the city, they are subject to the same perils
and liabilities as an individual, if the thing in fact is not a
nuisance. The charter confers upon it the power to prevent
and restrain nuisances but this does not authorize to declare a
particular use of property a nuisance (Cole vs. Kegler).
The meaning of the provision of the constitution has been
construed to be a law that hears before condemning, and
arrives at a judgment for the divestiture of the rights of
property through what is ordinarily understood to be judicial
process. (Joyce vs. Woods)
It is to secure and promote public health, safety and
convenience that municipal corporations are so generally
endowed with power to prevent and abate nuisances. But
such power cannot be taken to authorize the extrajudicial
condemnation and destruction of that as a nuisance which, in
its nature, situation, or use, is not as such. Finding that a
particular thing is a nuisance must be determined by the
ordinary courts of law. Iloilo is entitled to a fair and impartial
hearing before a judicial tribunal.
Another issue is if it is really a nuisance, Iloilo cannot be
compelled to build a higher smokestack for the reason that
the stack was built under authority granted by Municipal
council and in accordance with the prescribed requirements.

Monteverde v. Generoso, 52 Phil 123; G.R. No. 28491.

September 29, 1928.

Hidalgo v. Balandan, 91 Phil 489; G.R. No. L-3422.

June 13, 1952.
DOCTRINE: DOCTRINE OF ATTRACTIVE NUISANCE: One who
maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and
who fails to exercise ordinary care to prevent children from
playing therewith or resorting thereto, is liable to a child of
tender years who is injured thereby, even if the child is
technically a trespasser in the premises.
The attractive nuisance doctrine generally is not applicable to
bodies of water, artificial as well as natural, in the absence of
some unusual condition or artificial feature other than the
mere water and its location.
FACTS: Hidalgo Enterprises, Inc. "was the owner of an iceplant factory in the City of San Pablo, Laguna, in whose
premises were installed 2 tanks full of water, 9 feet deep, for
cooling purposes of its engine. While the factory compound
was surrounded with fence, the tanks themselves were not
provided with any kind of fence or top covers. The edges of
the tanks were barely a foot high from the surface of the
ground. Through the wide gate entrance, which is continually
open, motor vehicles hauling ice and persons buying said
commodity passed, and anyone could easily enter the said
factory, as he pleased. There was no guard assigned on the
gate.
At about noon of April 16, 1948, Mario Balandan, a boy barely
8 years old, while playing with and in company of other boys
of his age entered the factory premises through the gate, to
take a bath in one of said tanks; and while thus bathing, Mario
sank to the bottom of the tank, only to be fished out later,
already a cadaver, having been died of "asphyxia secondary
to drowning.

The CA, and the CFI, took the view that the Hidalgo
Enterprises maintained an attractive nuisance (the tanks), and
neglected to adopt the necessary precautions to avoid
accidents to persons entering its premises. It applied the
doctrine of attractive nuisance.
The CA required Hidalgo Enterprises, Inc. to pay Guillermo
Balandan and his wife, damages in the sum of P2,000 for the
death of their son Mario.
ISSUE(S): Is a swimming pool or water tank an instrumentality
or appliance likely to attract the little children in play? In other
words, is the body of water an attractive nuisance?
RULING: NO. The appealed decision is reversed and the
Hidalgo Enterprises, Inc. is absolved from liability.
RATIO: Nature has created streams, lakes and pools which
attract children. Lurking in their waters is always the danger
of drowning. Against this danger children are early instructed
so that they are sufficiently presumed to know the danger;
and if the owner of private property creates an artificial pool
on his own property, merely duplicating the work of nature
without adding any new danger... He is not liable because of
having created an "attractive nuisance."
The attractive nuisance doctrine generally is not applicable to
bodies of water, artificial as well as natural, in the absence of
some unusual condition or artificial feature other than the
mere water and its location.
There are numerous cases in which the attractive nuisance
doctrine has not been held not to be applicable to ponds or
reservoirs, pools of water, streams, canals, dams, ditches,
culverts, drains, cesspools or sewer pools.
In fairness to the Court of Appeals it should be stated that the
above volume of Corpus Juris Secundum was published in
1950, whereas its decision was promulgated on September
30, 1949.
Therefore, as Hidalgo's tanks are not classified as attractive
nuisance, the question whether the petitioner had taken
reasonable precautions becomes immaterial.

Sitchon v. Aquino, 98 Phil 458; G.R. No. L-8191.

February 27, 1956.
FACTS: These are 6 class suits against the City Engineer of
Manila to enjoin him from carrying out his threat to demolish
the houses of Petitioners herein, upon the ground that said
houses constitute public nuisances.
What remains common in all these petitions is that petitioners
occupied portions of the public street, without the consent of
the authorities. Later on, some of them paid concession fees
or damages, for the use of said portions of the street, to a
collector of the city treasurer, who issued receipts with an
annotation that says without prejudice to the order to
vacate. Respondent City Engineer advised and ordered them
to vacate the place and remove their houses, with the
warning that otherwise he would effect the demolition of said
houses at their expense. Hence, this petition.
ISSUE: Were the constructions of the houses nuisances that
can be abated by the city engineer?
HELD: Yes.
RATIO: Petitioners contend that said decisions should be

reversed upon the ground that, in trying to demolish their

respective houses without notice and hearing, the city
engineer sought to deprive them of their property without due
process of law, apart from the fact that, under Articles 701
and 702 of the new Civil Code, the power to remove public
nuisances is vested in the district health officer, not in
Respondent city engineer.
Before expressing his intent to demolish the houses in
question, Respondent had advised and ordered the Petitioners
to remove said houses, within the periods stated in the
corresponding notices; that Petitioners do not question, and
have not questioned, the reasonableness or sufficiency of said
periods; that they have never asked Respondent herein to
give them an opportunity to show that their houses do not
constitute public nuisances. Besides, it is not disputed that
said houses are standing on public streets, with the exception
of some houses, which are built on portions of river beds. It is
clear, therefore, that said houses are public nuisances,
pursuant to Articles 694 and 695 of the Civil Code of the
Philippines,
It is true that Articles 700 and 702 of the same Code provide
that the district health officer shall take care that one or all of
the remedies against a public nuisance are availed of and that
under Article 702 the district health officer shall determine
whether or not abatement, without judicial proceedings, is the
best remedy against a public nuisance.
However, section 31 of Republic Act No. 409, the Revised
Charter of the City of Manila, specifically places upon the city
engineer the duty, among others, to have charge of the care
of streets, canals and esteros ; to prevent the encroachment
of private buildings on the streets and public places ; to
have supervision of all private docks, wharves, piers and
other property bordering on the harbor, rivers, esteros and
waterways and issue permits for the construction, repair and
removal of the same and enforce all ordinances relating to the
same; to have the care and custody of all sources of water
supply; to cause buildings dangerous to the public to be
torn down; and to order the removal of buildings and
structures erected in violation of the ordinances. Articles 700
and 702 of Republic Act No. 386, should yield to said section
31 of Republic Act No. 409, not only because the former
preceded the latter, but, also, because said section 31 of
Republic Act No. 409 is a special provision specifically
designed for the City of Manila
Whenever the owner or person responsible for any
unauthorized obstruction shall, after official notice from the
proper department, refuse or neglect to remove the same
within a reasonable time, such obstruction shall be deemed a
public nuisance, and the city engineer is authorized to remove
the same at the owners expense. Again, houses constructed,
without governmental authority, on public streets and
waterways, obstruct at all times the free use by the public of
said streets and waterways, and, accordingly, constitute
nuisances per se, aside from public nuisances. As such, the
summary removal thereof, without judicial process or
proceedings may be authorized by the statute or municipal
ordinance, despite the due process clause.
The police power of the state justifies the abatement or
destruction, by summary proceedings, of whatever may be
regarded as a public nuisance; and the legislature may
authorize the summary abatement of a nuisance without
judicial process or proceeding.

Velasco v. Manila Electric Co., 40 SCRA 342; G.R. No.

L-18390. August 6, 1971.

DOCTRINE: Noise may constitute a nuisance but it must be of

such character as to produce actual physical discomfort and
annoyance to a person of ordinary sensibilities.

FACTS: Velasco bought three (3) adjoining lots. He sold two (2)
of these to Meralco and maintained the last one as his
residence. Meralco constructed on their lots a sub-station at a
distance of 10-20 meters away from appellants house. The
company also built a concrete wall at the sides along the
streets but put up only an interlink wire fence (previously a
sawali wall) on the boundary with appellant. An unceasing
sound emanates from the substation, caused by transformers.
Such, appellent contends, constitute a nuisance which has
worsened his health condition and has lowered the value of
his property. Several witnesses came forth but their
testimonies were vague and imprecise. Resort was made to a
sound level meter. The audible sound from different areas in
Velasos property was measured in terms of decibels. It was
found that the sound exceeded the average intensity levels of
residences.
ISSUE:Can there be a nuisance caused by noise or sound?
HELD: Yes. Several American decisions are cited showing that
noise is an actionable nuisance. In fact, Kentucky v. Anderson
dealt with noise emanating from electrical machinery and
appliances. The determining factor, however, is not just
intensity or volume. It must be of such character as to
produce actual physical discomfort and annoyance to a
person of ordinary sensibilities. However, appellants
testimony is too plainly biased. Nor are the witnesses
testimonies revealing on account of different perceptions.
Consequently, sound level meters were used. As stated
above, the sound exceeds average residential decibels. Also,
the testimonies of appellants physicians (which were more
reliable since they actually treated him, unlike the appellees)
point to the noise as having caused appellant loss of sleep,
irritation and tension weakening his constitution. Notable
lastly is the fact that in the Kentucky case, where the nuisance
was ordered abated, the average reading was 44 decibels
while in the instant, the readings include 52, 54, and 55. The
decision goes on to discuss the proper award of damages. But
Meralco was ordered either to transfer the facilities or reduce
the produced sound to around.

Farrales v. City Mayor of Baguio, 44 SCRA 239; G.R.

No. L-24245. April 11, 1972.
FACTS: Plaintiff was the holder of a municipal license to sell
liquor and sari-sari goods. When the temporary building where
she had her stall was demolished in order that the city might
construct a permanent building, Plaintiff was ordered to move
her goods to another temporary place until the permanent
building was completed. Instead, Plaintiff built a temporary
shack at one end of the Rice Section, Baguio City Market
without seeking prior permit from any city official. When the
police threatened to demolish the shack, Plaintiff sought an
injunction before the CFI which asked her that she present
proper permit. Upon failure of petitioner to comply with the
order, the CFI denied the petition for injunction, and the police
then demolished the shack.
ISSUES: (1) WON the shack or temporary stall was a nuisance;
(2) WON the police officers are liable for damages in
extrajudicially abating the nuisance.
RULING: Judgment Affirmed.
(1) The SC held that the shack was a nuisance. In the first
place she had no permit to put up the temporary stall in
question in the precise place where she did so. In the second
place, its location on the cement passageway at the end of
the Rice Section building was such that it constituted an
obstruction to the free movement of people.
(2) According to Article 707 of the CC, a public official
extrajudicially abating a nuisance shall be liable for damages
in only two cases: (a) if he causes unnecessary injury; or (b) if
an alleged nuisance is later declared by the courts to be not a
real nuisance.
In the case at bar, no unnecessary injury was caused to the
appellant, and not only was there no judicial declaration that

the alleged nuisance was not really so but the trial court found
that it was in fact a nuisance. Indeed it may be said that the
abatement thereof was not summary, but through a judicial
proceeding. The denial of petitioners petition for injunction
was in effect an authority for the police to carry out the act
which was sought to be enjoined.

Timoner v. People, 125 SCRA 830; G.R. No. L-62050.

November 25, 1983.
Timoner vs. People
Mayor fenced public nuisance.
Abatement of public nuisance without judicial proceedings,
municipal mayor not criminally liable when he acted in good
faith in authorizing the fencing of a barbershop for being a
public nuisance because it occupied a portion of the sidewalk.
Art 699 authorizes the abatement of a public nuisance without
judicial proceedings.
Grave coercion is committed when a person who without authority of law, shall
by means of violence, prevent another from doing something
not prohibited by law or compel to do something against his
will either it be right or wrong.
Elements:
a. That any person be prevented by another from doing
something not prohibited by law, or compelled to do
something against his will, be it right or wrong.
b. That the prevention or compulsion be effected by violence,
either by material force or such display of it as would produce
intimidation and control the will of the offended party
c. That the person who restrained the will and liberty of
another had no right to do so, or, in other words, that the
restraint was not made under authority of law or in the
exercise of a lawful right.
Facts: The Court of Appeals found the petitioner guilty
beyond reasonable doubt of the crime of Grave Coercion
penalized under Art. 286 of the Revised Penal Code. The
petitioner was the mayor of a town and by the
recommendation of the Municipal Health Officer, he
barricaded some establishments and stalls which protruded
into the sidewalk of the Maharlika highway and who were not
complying with certain health and sanitation requirement. The
petitioner then filed a complaint against the owners of the
stalls saying that these stalls constituted public nuisance as
well as nuisance per se. The owners of the stalls charged the
petitioner with the offense of grave coercion.
Issue: W/N the conviction of the court of appeals that the
petitioner committed grave coercion is correct the
complainants were public nuisance.
Decision: The court is in agreement that the complainants
were public nuisance for affecting a considerable number of
persons in their neighborhood. Petitioner, as mayor of the
town, merely implemented the aforesaid recommendation of
the Municipal Health Officer. Having then acted in good faith
in the performance of his duty, petitioner incurred no criminal
liability. Grave coercion is committed when "a person who,
without authority of law, shall by means of violence, prevent
another from doing something not prohibited by law or
compel to do something against his will, either it be right or
wrong." The third element being absent in the case at bar,
petitioner cannot be held guilty of grave coercion

Estate of Gregoria Francisco v. Court of Appeals199

SCRA 595; G.R. No. 95279. July 25, 1991.|||

Tamin v. Court of Appeals, 208 SCRA 863; G.R. No.

97477. May 8, 1992.
FACTS: On September 24, 1990, petitioner municipality
represented by its mayor Domiciano E. Real filed with the
Regional Trial Court of Zamboanga del Sur, Branch 23, Molave,
presided by the petitioner Judge, a complaint denominated as
"Ejectment with Preliminary Injunction and Damages" against
respondents Vicente Medina and Fortunata Rosellon.

The complaint alleged that the plaintiff (petitioner

municipality herein) is the owner of a parcel of residential land
located at Poblacion, Dumingag, Zamboanga del Sur with an
area of 5,894 square meters more or less; that the parcel of
land was reserved for public plaza under Presidential
Proclamation No. 365 dated March 15, 1968; that during the
incumbency of the late Mayor Isidoro E. Real, Sr. or in 1958,
the municipality leased an

Sur. At the time of the filing of the instant case, the cadastral
proceedings intended to settle the ownership over the
questioned portion of the parcel of land under Proclamation
No. 365 were still pending. One of the claimants in the
cadastral proceedings is private respondent Vicente Medina
who traced his ownership over the subject parcel of land as
far back as 1947 when he allegedly bought the same from a
Subanan native.

Area of 1,350 square meters to the defendants (respondents

herein) subject to the condition that they should vacate the
place in case it is needed for public purposes; that the
defendants religiously paid the rentals until 1967; that
thereafter, the defendants refused to pay the rentals; that the
incumbent mayor discovered that the defendants filed a
"Cadastral Answer" over said lot; that the defendants refused
to vacate the place despite efforts of the municipality; that
the national government had alloted an appropriation for the
construction of a municipal gymnasium within the public plaza
but the said construction which was already started could not
continue because of the presence of the buildings constructed
by the defendants; that the appropriation for the construction
of the gymnasium might be reverted back to the national
government which would result to "irreparable damage, injury
and prejudice" to the municipality and its people who are
expected to derive benefit from the accomplishment of the
project.

Under the cadastral system, the government through the

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

On October 23, 1990, the private respondents filed their

answer to the complaint alleging therein that the subject
parcel of land has been owned, occupied and possess by
respondent Vicente Medina since 1947 when he bought the
subject parcel from a Subanan native; that the other
respondent Fortunata Rosellon leased from Medina a portion
of the parcel of land; that the respondents were never lessees
of the petitioner municipality; that Proclamation No-365
issued on March 15, 1968 recognized "private rights"; and,
that a case is pending before the Cadastral court between
respondent Medina and petitioner municipality as regards the
ownership of the subject parcel of land. A writ of possession
and a writ of demolition was granted.
ISSUE: Is entitled to a writ of possession and a writ of
demolition even before the trial of the case starts?
HELD: No. Not only did the municipality avoid the use of
abatement without judicial proceedings, but the status of the
subject parcel of land has yet to be decided. We have to
consider the fact that Proclamation No. 365 dated March 15,
1968 recognizes private rights which may have been vested
on other persons, to wit:
BY THE PRESIDENT OF THE PHILIPPINES PROCLAMATION NO.
365
RESERVING FOR SCHOOL SITE, PUBLIC PLAZA AND
PLAYGROUND PURPOSES CERTAIN PARCELS OF LAND OF THE
PUBLIC DOMAIN SITUATED IN THE MUNICIPALITY OF
DUMINGAG, PROVINCE OF ZAMBOANGA DEL SUR, ISLAND OF
MINDANAO.
Upon recommendation of the Secretary of Agriculture and
Natural Resources and pursuant to the authority vested in me
by law, I FERDINAND E. MARCOS, PRESIDENT OF THE
PHILIPPINES, do hereby withdraw from sale or settlement and
under the administration of the Director of Public Schools
administration of the Municipal Government of Dumingag,
subject to private rights, if any there be, certain parcels of
land of the public domain situated in the Municipality of
Dumingag, Province of Zamboanga del Sur, Island of
Mindanao, . . .
It is to be noted that even before the Proclamation, the parcel
of land was the subject of cadastral proceedings before
another branch of the Regional Trial Court of Zamboanga del

Parenthetically, the issuance of the writ of possession and writ

of demolition by the petitioner Judge in the ejectment
proceedings was premature. What the petitioner should have
done was to stop the proceedings in the instant case and wait
for the final outcome of the cadastral proceedings.
Faced with these alternative possibilities, and in the interest of
justice, we rule that the petitioner municipality must put up a
bond to be determined by the trial court to answer for just
compensation to which the private respondents may be
entitled in case the demolition of their buildings is adjudged to
be illegal.
7) Legal Easements
a) In favor of adjacent properties
RIGHT OF WAY NCC 649-657

Archbishop of Manila v. Roxas, 22 Phil 450; G.R. No.

7386. March 30, 1912.

Cuaycong v. Benedicto, 37 Phil 781; G.R. No. 9989.

March 13, 1918.

Valderrama v. North Negros, 48 Phil 492; G.R. No.

23810. December 18, 1926.

North Negros v. Hidalgo, 63 Phil 664; G.R. No. 42334.

October 31, 1936.

Bernardo v. Court of Appeals, 97 Phil 131; G.R. No. L7248. May 28, 1955.

Francisco v. Intermediate Appellate Court, 177 SCRA

527; G.R. No. 63996. September 15, 1989.
DOCTRINE: If the enclosure or isolation was due to the
proprietors own acts, then there couldnt be any compulsory
right of way.
FACTS: Lot 860 was donated by co-owners Cornelia and Frisca
Dila to three sets of new owners. One of the undivided shares
was retained by Cornelia herself. This property had a frontage
along Parada Road and adjoined a lot owned by Eusebio
Francisco. Subsequently, the property was subdivided equally
among the new owners and Cornelia got Lots 860-A and 860C.
However, their partition overlooked the fact that Lot 860-B,
owned by Epifania Dila, a niece, included the entire frontage
of the property, leaving no access to the Parada Road for the
other lots.
Subsequently, Cornelia sold Lot A to the sisters Eugenio who
later sold it to Cresencio Ramos, who set up a piggery in the
property. Ramos, through a lawyer, undertook negotiations to
ask for a right of way through the land of Francisco. However,
these failed as Ramos could not accept the offer of exchange

of land at the rate of 1sqm to 3sqms, supposedly the custom

of the place.
Later that year, Ramos succeeded to obtain a passageway
through Lot 860-B, through the intercession of Councilor
Tongko. Inexplicably, Ramos put up a 10-ft concrete wall on
his lot which closed the very same right of way. Francisco
reacted by replacing the barbed wire fence on his lot along
the road with a stone wall.
Ramos then filed a complaint where the court granted a writ
of preliminary mandatory injunction directing Francisco to
remove the stone wall. Eventually the court ruled against
Francisco. The CA also affirmed the said decision.
Francisco argues that in view of the last paragraph of Art. 649,
his lot cannot be considered a servient estate subject to a
compulsory easement of right of way in favor of Ramos lo.
ISSUE: WON Francisco may be compelled to give a right of
way to the Ramos lot
HELD/RATIO: NO. A compulsory easement of way cannot be
obtained without the presence of 4 requisites provided in Art.
649 and 650, which the owner of the dominant tenement
must establish:
(1) That the dominant estate is surrounded by other
immovables and has no adequate outlet to a public highway
(Art. 649, par. 1);
(2) Afterpaymentofproperindemnity(Art.649,par.1,end);
(3) That the isolation was not due to acts of the proprietor of
the dominant estate; and
(4)
Thattherightofwayclaimedisatthepointleastprejudicialtotheser
vient 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).
The CA overlooked that Ramos had already been granted
access to the public road through Lot 860-B. He also
inexplicably gave up that right of access by walling off his
property from the said passageway. Evidence submitted
showed the existence of the said passageway from the
presence of tire marks found on the scene and confirmation
by several witnesses.
The law makes it amply clear that an owner cannot by his own
act isolate his property from a public highway and then claim
an easement of way through an adjacent estate. This violates
the third requisite above. A legal or compulsory easement of
way cannot be granted in the absence of one of those
requisites.

Costabella v. Court of Appeals, 193 SCRA 333; G.R.

No. 80511. January 25, 1991.
DOCTRINE: -An easement of right of way is discontinuous and
as such cannot be acquired by prescription.
-The burden of proving the existence of the prerequisites to
validly claim a compulsory right of way lies on the owner of
the dominant estate.
-Convenience of the dominant estate is not a gauge to grant
the compulsory right of way. While right of way is legally
demandable, the owner of the dominant estate is not at
liberty to impose one based on arbitrary choice.
FACTS: Costabella owns real estate properties (LOTS 5122 and

5124), situated in Lapu-Lapu City, on which a resort and hotel

is constructed. The adjoining property owners own LOTS 5123A AND 5123-C.
Prior to Costabellas construction of its beach hotel, the
adjoining property owners passed through a passageway
which traversed Costabellas property (the passageway goes
to the provincial road). This passageway was closed when the
construction of the hotel began BUT another route across
Costabellas property was opened through which the adjoining
property owners were allowed to pass.
Later, Costabella fenced its property when it constructed the
second phase of its beach hotel. This closed the alternative
passageway and prevented the adjoining property owners
from traversing any part of it.
The adjoining property owners filed an action for injunction
before the CFI. They claimed that the passageway is an
ancient road right of way that had been in existence before
WWII and since then, had been used by them. They also
claimed that Costabella constructed a dike on the beach
fronting the adjoining property owners properties without the
necessary permit, thereby obstructingthe passage of
residents, and trapping debris and flotsam on the beach.
In its answer, Costabella claimed that Costabella there is
another outlet for the adjoining property owners to the main
road.
The CFI found that the adjoining property owners acquired a
vested right over the passageway by virtue of prescription
and ordered Costabella to open and make available the
passageway to the general public at all times free of any
obstacle, unless Constabellashall provide another road equally
accessible and convenient as the road or passage closed by
Costabella.
The CA granted the adjoining property owners the right to an
easement of way on Costabellas property using the
passageway, but held that no vested right through
prescription was acquired.
ISSUE(S): Whether or not the adjoining property owners had
acquired an easement of right of way, in the form of a
passageway, on Costabellas property.
RULING:NO. The CA descision is set aside. RATIO:
The CA correctly ruled that an easement of right of way, as is
involved here, is discontinuousand cannot be acquired by
prescription. However, the CA erred in holding that the
passageway in issue as a compulsory easement which the
adjoining property owners, as owners of the dominant
estate, may demand from Constabella, the latter being the
owner of the servient estate.
The owner of the dominant estate may validly claim a
compulsory right of way only after he has established the
existence of 4 requisites:
(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 proprietors 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.

In this case, there is absent any showing that the adjoining

property owners had established the existence of the 4
requisites mandated by law.
The adjoining property owners failed to prove that there is no
adequate outlet from their respective properties to a public
highway. On the contrary, there is another outlet for the
adjoining property owners to the main road.
The CA, by ordering the re-opening of the old passageway on
the ground that the existing outlet is inconvenient to the
plaintiff", 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.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.
The adjoining property owners' properties cannot be said to
be isolated, for which a compulsory easement is demandable.
Servitudes of right of way are an ancient concept, which date
back to the iter, actus, and via of the Romans. They are
demanded by necessity to enable owners of isolated estates
to make full use of their properties, which lack of access to
public roads has denied them. 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.
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 prejudical
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. Yet, each case must be weighed according to its
individual merits, and judged according to the sound
discretion of the court.

Encarnacion v. Court of Appeals, 195 SCRA 74; G.R.

No. 77628. March 11, 1991
DOCTRINE: An easement of right of way exists as a matter of
law when a private property has no access to a public road
and the needs of such property determines the width of the
easement which requires payment of indemnity which
consists of the value of the land and the amount of the
damages caused.
FACTS: Tomas Encarnacion is the owner of the dominant
estate which is bounded on the north by the servient estates
of Eusebio de Sagun and Mamerto Masigno, on the south by a
dried river and the Taal Lake. The servient estate is bounded
on the north by the National Highway.
Prior to 1960, persons going to the national highway would
just cross the servient estate at no particular point. In 1960,
Sagun and Masigno enclosed their lands with a fence but
provided a roadpath 25 meters long and about 1 meter in
width. At this time, Encarnacion started his plant nursery
business on his land. When his business flourished, it became
more difficult to transfer the plants and garden soil through
the use of a pushcart so Encarnacion bought an owner-type
jeep for transporting the plants. However, the jeep could not
pass through the roadpath so he approached Sagun and
Masigno asking them if they would sell to him 1 12 meters of
their property to add to the existing roadpath but the 2
refused the offer.

Encarnacion then instituted an action before the RTC to seek

the issuance of a writ of easement of a right of way over an
additional width of at least 2 meters. The RTC dismissed the
complaint for there is another outlet, which is through the
dried river bed. This was affirmed by the CA thus the case at
bar.
ISSUE: Whether or not Encarnacion is entitled to an widening
of an already existing easement of right-of-way
HELD: YES. Encarnacion has sufficiently established his claim.
Generally, a 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 case at bar, although there is a dried river
bed, t it traversed by a semi-concrete bridge and there is no
egress or ingress from the highway. For the jeep to reach the
level of the highway, it must literally jump 4-5 meters up. And
during rainy season, it is impassable due to the floods. When
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. With the non-availability of the dried river bed as an
alternative route, the servient estates should accommodate
the needs of the dominant estate. Art. 651 provides that the
width of the easement of right of way shall be that which is
sufficient for the needs of the dominant estate ... To grant the
additional easement of right of way of 1 12 meters,
Encarnacion must indemnify Sagun and Masigno the value of
the land occupied plus amount of the damages caused until
his offer to buy the land is considered.

Solid Manila Corp. v. Bio Hong, 195 SCRA 748; G.R.

No. 90596. April 8, 1991.

Quimen v. Court of Appeals, 257 SCRA 163; G.R. No.

112331. May 29, 1996.
DOCTRINE: In easement of right of way, that easement where
the way is shortest and will cause least prejudice shall be
chosen; but 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. This is so because least
prejudice prevails over shortest distance.
FACTS: Anastacia Quimen together with her brothers (Sotero,
Sulpicio, Antonio) and sister (Rufina) inherited a piece of
property. The share of Anastacia was located at the extreme
left (Lot B-1). It is bounded on the right by the property of her
brother Sotero (Lot B- 2). Anastacias niece, Yolanda, later
bought a portion of the lot of her uncle Antonio (Lot B-6-A),
which was located right behind Anastacias and Soteros land.
Yolanda bought it through her aunt Anastacia who was then
acting as Antonios administratrix. According to Yolanda, when
Anastacia offered her the property for sale she was hesitant to
buy as it had no access to a public road. But Anastacia
assured her that she would give her a right of way on her
adjoining property for P200.00 per square meter.
Yolanda then constructed a house on the lot using as her
passageway to the public highway a portion of Anastacia s
property. When Yolanda finally offered to pay for the use of the
pathway, Anastacia refused to accept the payment, and
barred Yolanda from passing through her property.
Yolanda later purchased the other portion of the lot of Antonio
(Lot No. B-6-B), located directly behind the property of her
parents who provided her a pathway between their house,
behind the sari-sari store of Sotero, and Anastacias perimeter
fence. The store is made of strong materials and occupies the
entire frontage of the lot. 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.
Yolanda filed an action praying for a right of way through

Anastacia s property. The proposed right of way was at the

extreme right of Anastacias property facing the public
highway, starting from the back of Soteros sari-sari store and
extending inward and turning left to avoid the store of Sotero
in order to reach the municipal road. The way was
unobstructed except for an avocado tree standing in the
middle.
Trial court: dismissed for lack of cause of action, but
explained: 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 Anastacias property.
Court of Appeals: in favor of Yolanda, explained that the way
proposed by Yolanda would cause the least damage and
detriment to the servient estate.
ISSUE: W/N the longer route, as proposed by Yolanda, is less
prejudicial to the parties in this case
HELD: YES. (Yolanda won)
RATIO: 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 theshortest
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.
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.

PARTY WALL NCC 658-666

Lao v. Heirs of Alburo, 33 Phil 48; G.R. No. 10372.

December 24, 1915.
LIGHT & VIEW NCC 667-673

Cortes v. Yu-Tibo, 2 Phil 24; G.R. No.911 . March 12,

1903.

Fabie v. Lichauco, 11 Phil 14; G.R. No. 3598. July 24,

1908.

Saenz v. Figueras Hermanos, 13 Phil 666; G.R. No.

2085. August 10, 1909.

Amor v. Florentino, 74 Phil 403; G.R. No. 48384.

October 11, 1943.

Gargantos v. Yanon, 108 Phil 888; G.R. No. L-14652.

June 30, 1960.
Sluice gate NCC 647

Tanedo v. Bernad, 165 SCRA 86; G.R. No. 66520.

August 30, 1988.

Ayala de Roxas v. City of Manila, 9 Phil 215; G.R. No.

L-3144. November 19, 1907.

Lunod v. Meneses, 11 Phil 128; G.R. No. 4223. August

19, 1908.

Salazar v. Gutierrez, 33 SCRA 242; G.R. No. L-21727.

May 29, 1970.

Relova v. Lavarez, 9 Phil 149; G.R. No. L-3623.

November 6, 1907.
NUISANCE (Arts. 694-707 NCC)

Smart Communications, Inc. v. Aldecoa, G.R. No.

166330, September 11, 2013.