G.R. No.

L-7012 March 26, 1913

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

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

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

Bruce, Lawrence, Ross and Block, for appellee.

TRENT, J.:

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

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

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

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

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

1. xxx xxx xxx.

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

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

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

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

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

The plaintiff demurred to this answer upon the following grounds:

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

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

This demurrer was sustained, the court saying:

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

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

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

The municipal council is, under section 39 (j) of the Municipal Code, specifically empowered "to declare
and abate nuisances." A nuisance is, according to Blackstone, "Any thing that worketh hurt,
inconvenience, or damages." (3 Black. Com., 216.) They arise from pursuing particular trades or
industries in populous neighborhoods; from acts of public indecency, keeping disorderly houses, and
houses of ill fame, gambling houses, etc. (2 Bouv., 248; Miller vs. Burch, 32 Tex., 208.) Nuisances
have been divided into two classes: Nuisances per se, and nuisances per accidens. To the first belong
those which are unquestionably and under all circumstances nuisances, such as gambling houses,
houses of ill fame, etc. The number of such nuisances is necessarily limited, and by far the greater
number of nuisances are such because of particular facts and circumstances surrounding the
otherwise harmless cause of the nuisance. For this reason, it will readily be seen that whether a
particular thing is a nuisance is generally a question of fact, to be determined in the first instance
before the term nuisance can be applied to it. This is certainly true of a legitimate calling, trade, or
business such as an ice plant. Does the power delegated to a municipal council under section 39 (j)
of the Municipal Code commit to the unrestrained will of that body the absolute power of declaring
anything to be a nuisance? Is the decision of that body final despite the possibility that it may proceed
from animosity or prejudice, from partisan zeal or enmity, from favoritism and other improper influences
and motives, easy of concealment and difficult to be detected and exposed? Upon principle and
authority, we think it does not.
In Rutton vs. City of Camden, 39 N.J.L., 122, 129; 23 Am. Rep. 203, 209, the court said:

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

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

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

In Cole vs. Kegler (64 la., 59, 61) the court said:
 We do not think the general assembly intended to confer on cities and towns the power of
finally and conclusively determine, without notice or a hearing, and without the right of appeal,
that any given thing constitutes a nuisance, unless, probably, in cases of great emergency, so
strong as to justify extraordinary measures upon the ground of paramount necessity. The law
does not contemplate such an exigency, and therefore does not provide for it. If it did, it would
no longer be the undefined law of necessity. (Nelson, J., in The People vs. The Corporation of
Albay, 11 Wend., 539.)

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

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

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

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

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

In Everett vs. City of Council Bluffs (46 Ia., 66, 67), where the council passed an ordinance declaring
trees on certain streets to be a nuisance and ordering the marshall to abate the same, the court held:
 The defendant is incorporated under a special charter, which provides that the city council has
power "to declare what shall be a nuisance, and to prevent, remove, or abate the same." This
general grant of power, however, will not authorize the council to declare anything a nuisance
which is not such at common law, or has been declared such by statute.

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

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

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

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

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

As to the ordinance of the common council of the city of Joilet, of September, 1872, declaring
the railroad a nuisance, we regard that as without effect upon the case, although the charter
of the city confers upon the common council the power to abate and remove nuisances, and
to punish the authors thereof, and to define and declare what shall be deemed nuisances. We
will, in this respect, but refer to the language of the Supreme Court of the United State in
Yates vs. Milwaukee (10 Wall., 505). (See supra.)

In the leading case of Denver vs. Mullen (7 Colo., 345, 353) where an extended review of the
authorities is made, the court said:

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

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

xxx xxx xxx

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

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

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

In Everett vs. Marquette (53 Mich., 450, 451) the court, per Cooley, J., said:
 But it is not necessary in this case to determine whether the permission given by the village
council was in due form for the purposes of a permanent appropriation, or even whether the
council had the power to consent to such an appropriation. It is undoubted that the council had
general control of the streets under the village charter; and it was a part of its duty to prevent
the creation of any public nuisance within them. It is not to be assumed that consent would
have been given to such a nuisance, and when, by formal resolution the council assumed to
give permission to complainant to make the openings and build the stairways complained of,
it must have been done in the belief that no public inconvenience would follow. If the
permission was effectual for no other purpose, it at least rebutted any presumption which might
otherwise have existed, that this partial appropriation of the street was per se a nuisance.

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

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

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

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

The questions discussed in this august array of authorities are exactly those of the present case, and
the controlling principles and the reasoning upon which they are founded are so fully and lucidly set
forth as to justify us in refraining from comment of our own. It is clear that municipal councils have,
under the code, the power to declare and abate nuisances, but it is equally clear that they do not have
the power to find as a fact that a particular thing is a nuisance when such thing is not a nuisance per
se; nor can they authorize the extrajudicial condemnation and destruction of that as a nuisance which
in its nature, situation, or use is not such. These things must be determined in the ordinary courts of
law.

In the present case it is certain that the ice factory of the plaintiff is not a nuisance per se. It is a
legitimate industry, beneficial to the people, and conducive to their health and comfort. If it be in fact a
nuisance due to the manner of its operation, that question cannot de determined by a mere resolution
of the board. The petitioner is entitled to a fair and impartial hearing before a judicial tribunal.
The respondent has, we think, joined issued by its answer denying that it was intending to proceed
with the abatement of the alleged nuisance by arbitrary administrative proceedings. This is the issue
of the present case, and upon its determination depends whether the injunction should be made
permanent (but limited in its scope to prohibiting the closing of petitioner's factory by administrative
action), or whether the injunction should be dissolved, which will be done in case it be shown that the
municipal officials intend to proceed with the abatement of the alleged nuisance in an orderly and legal
manner.

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

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

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

Johnson, J., dissents.

G.R. No. L-24245 April 11, 1972

LEONOR FARRALES, assisted by her husband, EMILIO

FARRALES, plaintiffs-appellants, vs. THE CITY MAYOR OF
BAGUIO, THE CHIEF OF POLICE, THE MARKET
SUPERINTENDENT AND THE CITY TREASURER, defendants-
appellees.

Ernesto C. Hidalgo and Pedro O. Trinidad for plaintiff-appellants.

The City Attorney for defendants-appellees.

MAKALINTAL, J.:

This appeal by the plaintiffs from the decision of the Court of First
Instance of Baguio in its Civil Case No. 622 was taken to the Court of
Appeals and subsequently certified by the latter to this Court for the
reason that only questions of law are involved. chanroblesvirtualawl ibrarychanrob les virtual law l ibrary

The decision appealed from states the facts and conclusions arrived
at by the court a quo, as follows:
This is an action for damages. 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. She did not like the location pointed out by city officials
where she could install her temporary stall. Instead, taking the law
into her own hands, Plaintiff built a temporary shack at one end of
the Rice Section, Baguio City Market (see Exhibits 3, 4, and 6),
without seeking prior permit or permission from any city official.
When the police threatened to demolish this shack, which was built
on the cement passageway at the end of the Rice Section building,
Plaintiff came to this Court seeking an injunction. Before this Court
would issue an injunction, a hearing was held where this Court
refused to issue the same unless Plaintiff could show proper permit.
Plaintiff could not do so, so the police demolished the shack, brought
the materials and goods to the City Hall and subsequently delivered
both materials and goods to Plaintiff. Plaintiff cited the police for
contempt but this Court, in an order dated September 19, 1956,
denied Plaintiff's petition. That order was final in character - not
interlocutory - and no appeal having been made would operate as res
judicata to his present suit which is based on the same act of
demolition. To evade the effects of res judicata, Plaintiff amended her
complaint so as to include as Defendants the policemen whom she
claims did the demolishing. The only question to be determined by
this Court is whether the demolition of the shack was in order or not.
There is no doubt Plaintiff had not permit to build the shack and this
shack was built in the passageway where people pass when going to
the hangar market building. Plaintiff insists that the proper procedure
should have been for either the City Engineer or the City Health
Officer to commence legal proceedings for the abatement of this
"nuisance". This Court believes that the police officers properly
demolished the shack for it had been built in defiance of orders from
City Hall officials. Plaintiff had been assigned a place where to install
her shack - she did not like this and, following her own desires, built
the shack in the middle of a passage. Should the police wait for the
City Engineer or City Health Officer to act in order to clear the
passageway of this illegal construction? This Court believes that they
could clear the passageway on their own responsibility, just like they
can push a car that is parked in the wrong place without waiting for
court proceedings. In fact in the case of Verzosa v. City of Baguio,
G.R. No. L-13546, Sept. 30, 1960, our Supreme Court permitted the
removal of a building built under temporary permit on Session Road
without court proceedings simply because the temporary permit had
expired. In this present case, with greater reason - the removal of
Plaintiff's building is justified.
chanroblesvirtualawl ibrarychanrob les virtual law l ibrary

The complaint of Plaintiff is therefore, dismissed with costs against

Plaintiff.

The first error assigned by the appellant refers to the order of the
trial court refusing to declare the defendants in default and allowing
them to file their answer to the complaint after the expiration of the
reglementary period for that purpose. Such action of the court was
justified and indeed explained by it in an order dated September 29,
1956, denying the plaintiff's motion for reconsideration of the
permission granted on August 24, 1956 to the defendants to file their
answer. The Court said:

The stenographic notes of that day show that Atty. Baclit appeared in
this case on behalf of the Plaintiffs and when the issue of the
sufficiency of Plaintiffs' complaint was raised by the City Attorney,
and Atty. Baclit said he had no knowledge of the same, this Court
suspended hearing to wait for Atty. Benjamin Rillera, attorney of
record of Plaintiffs and who was the one who filed the Motion to
Declare Defendant in Default. Subsequently that morning, Atty.
Rillera came and manifested to this Court his willingness to withdraw
his motion and, to allow Defendants to file their answer. This was the
reason for the order of this Court dated August 24, 1956. Plaintiffs
are bound by the actuations of their Counsel. The fact that he refused
to file a motion for reconsideration and instead insisted in
withdrawing as counsel for Plaintiffs would be no justification of
revoking the order of August 24, 1956. The motion for
reconsideration filed by Plaintiffs personally is, therefore, denied for
lack of merit.

The other errors assigned by the appellant have to do with the merits
of the case. The appellant's contention is that the shack or temporary
stall put up by her inside the premises of the Baguio City Market was
not a nuisance or if it was a nuisance at all it was one per
accidens and not per se and therefore could be abated only after the
corresponding judicial proceeding. The uncontradicted evidence does
not support the appellant's contention. 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. As the
court a quo correctly observed, this fact is shown clearly on the
photographs marked Exhibits 3, 4 and 6. Judging by these
photographs it cannot even be said that what the appellant
constructed was a temporary stall. It was nothing more than a lean-
to, improvised with pieces of used scrap iron roofing sheets. It was
obviously not a "building" within the meaning of the Charter of the
City of Baguio (Art. V, Section 2557 [d] Adm. Code) relied upon by
the appellant and under which the power "to cause buildings,
dangerous to the public, to be made secure or torn down, is vested
in the City Engineer, subject to the approval of the City Mayor. chanroblesvirtualawlib rarychanrobles virtua l law libra ry

It is true that under Article 702 of the Civil Code "the District Officer
shall determine whether or not abatement, without judicial
proceedings, is the best remedy against public nuisance;" but in this
case the failure to observe this provision is not in itself a ground for
the award of damages in favor of the appellant and against the
appellees. According to Article 707 of the same Code, a public official
extrajudicially abating a nuisance shall be liable for damages in only
two cases: (1) if he causes unnecessary injury, or (2) if an alleged
nuisance is later declared by the courts to be not a real nuisance.
law library
chanroblesvirtualawlib rarychanrobles virtua l

Here 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 appellant, after having been
warned by the city police of Baguio that the lean-to she had put up
without a permit would be demolished, went to court and asked for
an injunction. A hearing was then held and the court refused to issue
the writ unless she showed the proper permit. The denial of her
petition for injunction upon her failure to produce such a permit was
in effect an authority for the police to carry out the act which was
sought to be enjoined. And it was an authority which was later
confirmed by the same court in its decision. Under the circumstances
there is absolutely no ground to award damages in favor of the
appellant.chanroblesvirtualawlib rarychanrobles virtua l law lib rary

WHEREFORE, the judgment appealed from is affirmed, without

pronouncement as to costs. chanroblesvirtualawl ibrarychan robles virtual law l ibrary

Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando,

Teehankee, Barredo and Antonio, JJ., concur. chanroblesvirtualawl ibrarychanrob les virtual law l ibrary

Makasiar, J., concurs in the result.

G.R. No. L-7386 March 12, 1912

THE ROMAN CATHOLIC ARCHBISHOP OF MANILA, petitioner-

appelle, vs. PEDRO P. ROXAS, opponent-appellant.

Sanz and Opisso for appellant.

William A. Kincaid and Thomas L. Hartigan for appellee.

TRENT, J. : chanrobles virtual law li brary

This appeal involves only a right of way claimed by the appellant

Pedro P. Roxas, the owner of the dominant estate, across parcel L,
the property of the appellee, to Calle Tejeron, a distant of about 100
meters. The servient estate is bounded on the north by an estero; on
the west by the dominant estate; on the southwest by Calle Tejeron;
and on the west by that lands of Francisco Managan. The eastern line,
which joins the dominant estate, is 265 meters long. The appellant
claims a right of way starting across parcel L at a point 198 meters
from the southern extremity of this line. During the trial of this case
in the court below the parties entered into the following agreement:

It is admitted as a question of fact that the road between the

Hacienda de San Pedro Macati and Calle Tejeron, which, according to
the witness Leopoldo Areopaguita, was formerly a meter and a half
or two meters wide, although at present it has a greater width, has
been used from time immemorial by the tenants of the Hacienda de
San Pedro Macati for the passage of carts entering and leaving the
Hacienda.

In addition to the admitted facts as above set forth, the testimony

shows that the road in question is now some 4 meters wide; that
since time out of mind there has existed upon lot L near the middle,
and also very near this road, a small church; that the faithful use said
road in going to this place of worship and that said road is not only
used by the tenants of the appellant but also by the people living in
the sitio of Suavoy. chanroblesvirtualawlibrary chanrob les virtual law l ibrary

It is admitted by both parties that the tenants of the dominant estate

have used the road in question since time immemorial for carts, both
for entering and leaving the hacienda. It is also an established fact
that the said hacienda (the dominant estate) is partly bounded on the
south by Calle Tejeron. The point where it is claimed that this right of
way starts across by lot L is only 198.25 meters from the said street.
So the claim of the appellant cannot be that the right of way exists
by necessity growing out of the peculiar location of his property, but
simply that it arises by prescription, founded alone upon immemorial
use by his tenants.chanroblesvirtualawl ibrary chanrobles virtua l law li brary

The result is that the road which the appellant seeks to have declared
a right of way for the benefit of the hacienda has been used for a
great number of years by the members of the appellee's church to go
to and from the ermita, and also by the appellant's tenants, and by
other people. And furthermore, while it is true that the appellant's
tenants have used this road for carts as above stated, yet it has not
been shown that such use was absolutely necessary in order to
cultivate the dominant estate, but, on the contrary, it clearly appears
that the said tenants cross lot L merely on account of convenience,
as they could have reached the public highway by going on in other
directions, especially south only 198 meters. Therefore, the admitted
and established facts show (1) that the use of the road by the tenants
of the appellant in this manner and under these circumstances has
not been such as to create an easement by prescription or in any
other manner; and (2) that the use of said road by all has been by
permission or tolerance of the appellee. chanroblesvirtualawl ibrary chanrobles virtua l law lib rary

Where a tract of land, as in the case at bar, attached to a public

meeting house - such as the ermita - is designedly left open and
uninclosed for the convenience of the members or worshippers of that
church, the mere passage of persons over it in common with those
for whose use it was appropriated is to be regarded as permissive
and under an implied license, and not adverse. Such a use is not
inconsistent with the only use which the proprietor thought fit to
make of the land, and until the appellee thinks proper to inclose it,
such use is not adverse and will not preclude it from enclosing the
land when other views of its interests renders it proper to do so. And
although an adjacent proprietor may make such use of the open land
more frequently than other, yet the same rule will apply unless there
be some decisive act indicating a separate and exclusive use under a
claim of right. A different doctrine would have a tendency to destroy
all neighborhood accommodations in the way of travel; for if it were
once understood that a man, by allowing his neighbor to pass through
his farm without objection over the pass-way which he used himself,
would thereby, after the lapse of time, confer a right on such neighbor
to require the pass-way to be kept open for his benefit and
enjoyment, a prohibition against on all such travel would immediately
ensue. And again, it must be remembered that a right of way, like
the one sought to be established in the case at bar, is a charge
imposed upon real property for the benefit of another estate
belonging to a different owner. Such a right of way is a privilege or
advantage in land existing distinct from the ownership of the soil; and
because it is a permanent interest in another's land with a right to
enter at all times and enjoy it, it can only be founded upon an
agreement or upon prescription. And when a latter is relied upon in
those cases where the right of way is not essential for the beneficial
enjoyment of the dominant estate, the proof showing adverse use -
which is an affirmative claim - must be sufficiently strong and
convincing to overcome the presumption of permissive use or license,
as such a right of way is never implied because it is convenient. chanroblesvirtualawl ibrary chanrobles virtua l law lib rary

For these reasons, the judgment appealed from denying the

appellant's claim to a right of way across lot L is affirmed, with costs
against the appellant. chanroblesvirtualawli brary chanrobles virtual law libra ry

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.:

The principal issue raised in this petition for review on certiorari of the decision1 dated May 30, 1986
of the Court of Appeals,2 which modified the decision3 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
resolution13 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

discontinuous15 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. 77628 March 11, 1991

TOMAS ENCARNACION, petitioner,

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

Esteban M. Mendoza for petitioner.

Oscar Gozos for private respondents.

FERNAN, C.J.:

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

The facts are undisputed.

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

Prior to 1960, when the servient estate was not yet enclosed with a concrete fence, persons going to
the national highway just crossed the servient estate at no particular point. However, in 1960 when
private respondents constructed a fence around the servient estate, a roadpath measuring 25 meters
long and about a meter wide was constituted to provide access to the highway. One-half meter width
of the path was taken from the servient estate and the other one-half meter portion was taken from
another lot owned by Mamerto Magsino. No compensation was asked and non was given for the
portions constituting the pathway. 1

It was also about that time that petitioner started his plant nursery business on his land where he also
had his abode. He would use said pathway as passage to the highway for his family and for his
customers.

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

Petitioner then instituted an action before the Regional Trial Court of Batangas, Branch 6 (Tanauan)
to seek the issuance of a writ of easement of a right of way over an additional width of at least two (2)
meters over the De Saguns' 405-square-meter parcel of land.2
During the trial, the attention of the lower court was called to the existence of another exit to the
highway, only eighty (80) meters away from the dominant estate. On December 2, 1985, the lower
court rendered judgment dismissing petitioner's complaint. It ruled:

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

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

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

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

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

While there is a dried river bed less than 100 meters from the dominant tenement, that access is
grossly inadequate. Generally, the right of way may be demanded: (1) when there is absolutely no
1âwphi1

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.
.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. TAÑEDO, 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. Tañedo. 1

Antonio Cardenas, on that same day, also mortgaged Lot 7501-B to said Eduardo C. Tañedo 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 Tañedo 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 Tañedo 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 Tañedo offered to redeem the property from Romeo Sim.
But the latter refused. Instead, Romeo Sim blocked the sewage pipe connecting the building of
Eduardo Tañedo built on Lot 7501-A, to the septic tank in Lot 7501-B. He also asked Tañedo to remove
that portion of his building enroaching on Lot 7501-B. As a result, Eduardo Tañedo, 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 Tañedo 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 Tañedo. 6

Antonio Cardenas, upon the other hand, admitted that he had agreed to sell Lot 7501-B to Eduardo
Tañedo 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

Tañedo 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
Tañedo. 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 Tañedo 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 Tañedo
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
Tañedo 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 Tañedo'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 Tañedo. 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. L-21727 May 29, 1970

CRISPINA SALAZAR, petitioner,

vs.
GUILLERMO GUTIERREZ, and DAMASO MENDOZA, respondents.

Jaime L. Guerrero and Renato B. Bercades for petitioner.

Tañada, Teehankee & Carreon and Jose P. Santillan for respondents.

MAKALINTAL, J.:

Judgment was rendered by the Court of First Instance of Bataan (Civil Case No. 2269) in favor of the
plaintiff, Crispina Salazar, now petitioner; on appeal by the defendants, Guillermo Gutierrez and
Damaso Mendoza, the Court of Appeals reversed (CA-G.R. No. 19489-R); and the plaintiff elevated
the case to us for review by certiorari.

Crispina Salazar is owner of a piece of land (Lot 436 of the Cadastral Survey of Balanga) situated in
Tuyo, Balanga, Bataan, covered by Transfer Certificate of Title 1578 issued by the Register of Deeds
of the said province, and acquired by her from the Municipality of Balanga on May 4, 1949. The lot is
bounded on the northeast by Lot 361, on the southeast by Sapang Tuyo, on the southwest by Lot 435,
and on the northwest by Lot 433.

Lot 433 was registered under the Torrens system on July 23, 1923, with Original Certificate of Title
2162. Ownership passed to respondent Guillermo Gutierrez by inheritance in 1927, and Transfer
Certificate of Title No. 1059 was issued in his name on June 11, 1928. No annotation of any lien or
encumbrance affecting the land appears on either title.

Before the present controversy arose, Lot 436 and some of the surrounding estates, including Lot 433,
were irrigated with water from Sapang Tuyo, a public stream, flowing through a dike that traversed
Lots 431, 434, 433 and 461. The portion of this dike that passed through Lot 433 branched near the
boundary between this lot and Lot 434 into a canal which ran across the rest of Lot 433 up to Lot 436.
It was with the water flowing through this canal that Lot 436 used to be irrigated.

On February 24, 1953 respondent Damaso Mendoza, a lessee of Lot 433, demolished the said canal,
thereby stopping the flow of the water and depriving Crispina Salazar's Lot 436 of the irrigation facilities
which it had formerly enjoyed. Her requests that the canal be rebuilt and the water flow restored having
been turned down, Salazar commenced the present suit on March 2, 1953, praying that these reliefs
be granted her by the Court and that the defendants be ordered to pay her actual damages in the sum
of P900, moral damages in the sum of P5,000, and P1,000 for attorney's fees, plus costs.

The trial court issued a writ of preliminary injunction as prayed for by the plaintiff, ordering the
defendants to restore the demolished portion of the canal and to refrain from again demolishing the
same pending trial, but the writ was dissolved on March 9, 1953, upon a counterbond filed by the
defendants. The latter answered with their own counterclaim for damages, denied the substantial
averments of the complaint and put up a number of affirmative defenses.

After trial, the Court of First Instance of Bataan, finding that the demolished canal had been in
existence for more than thirty years and that the big dike from which it extended had been constructed
for the use of Lot 436 as well as several other lots belonging to different owners, rendered judgment
on April 10, 1956, ordering the defendants to restore at their expense the canal in question, to connect
it with the canal found in Lot 436 and to cause the corresponding annotation of the encumbrance on
Transfer Certificate of Title 1059 covering Lot 433; and ordering the defendants to pay the plaintiff the
sum of P1,360 annually beginning the agricultural year 1956-1957 until the restoration of the canal,
P4,700 as actual damages, P5,000 as moral damages and P1,000 as attorney's fees, plus costs.

On July 26, 1963, the Court of Appeals reversed the decision of the Court of First Instance and held
that since the easement of aqueduct over Lot 433 for the benefit of Lot 436 was a voluntary one, the
same was extinguished when Lot 433 was registered on July 23, 1923 and the corresponding
certificate of title was issued without the annotation of said easement as a subsisting encumbrance.

The respondents have raised a preliminary procedural question, alleging that Section 1 of Rule 46
(now Section 1 of Rule 45), requiring proof of service of a copy of the petition upon the Court of
Appeals, was not complied with. Such omission, however, is not of jurisdictional import. In an appeal
by certiorari upon a question of law, as distinguished from an original petition for certiorari under Rule
65, the Court of Appeals is merely a nominal party respondent. The original parties in the trial court
are the same parties in the appeal.

The main issue as set forth in the decision of the Court of Appeals is the nature of the easement of
aqueduct claimed by the petitioner. If voluntary, according to the said Court, the easement was
extinguished upon the registration of Lot 433 in 1923, pursuant to Section 39 of Act No. 496, which
provides:

But if there are easements or other rights appurtenant to a parcel of registered land
which for any reason have failed to be registered, such easements or rights shall
remain so appurtenant notwithstanding such failure and shall be held to pass with the
land until cut off or extinguished by the registration of the servient estate, or in any
other manner. (Emphasis supplied).

In arriving at the conclusion that the easement in question was voluntary and not legal or compulsory,
the Court of Appeals took into consideration the provisions of Articles 557 and 558 of the Spanish Civil
Code, now Articles 642 and 643 of the new Civil Code respectively, as follows:

ART. 642. Any person who may wish to use upon his own estate any water of which
he can dispose shall have the right to make it flow through the intervening estates, with
the obligation to indemnify their owners, as well as the owners of the lower estates
upon which the waters may filter or descend.

ART. 643. One desiring to make use of the right granted in the preceding article is
obliged:

(1) To prove that he can dispose of the water and that it is sufficient for the use for
which it is intended;

(2) To show that the proposed right of way is the most convenient and the least
onerous to third persons;

(3) To indemnify the owner of the servient estate in the manner determined by the laws
and regulations.
Specifically the appellate court held that there is no evidence to show that the petitioner has complied
with the three requisites laid down in Article 643 in order to entitle her to claim a legal easement of
aqueduct under Article 642. It bears repeating that the finding thus made, although apparently factual
in character, is premised upon supposed absence of evidence, and therefore is reviewed by this Court
if the premise is clearly contradicted by the record or unjustified upon other considerations which
logically lead to a different conclusion, but which the decision under review did not take into account.

On the first requisite of Article 643 — that the petitioner must prove that he can dispose of the water
and that it is sufficient for the use for which it is intended — there is the statement of the trial court that
the disputed canal had been in existence since the Spanish regime, or at least prior to the original
registration of Lot 433 in 1923, and that of the Court of Appeals itself confirmatory of this second
alternative finding. If, as thus found, the petitioner had been using water from Sapang Tuyo to irrigate
Lot 436 since she acquired said lot in 1949, as the Municipality of Balanga had been doing before her,
and that such use had lasted continuously for at least thirty years, it is a fair presumption that she had
a right to do so and that the water she could dispose of was sufficient for the purpose. Indeed it would
be a superfluity to require her to produce a permit from the proper authorities, for even without it the
right had already become vested both under Article 194 of the Spanish Law of Waters and under
Article 504 of the Civil Code, which respectively state:

ART. 194. Any person who has enjoyed the use of public waters for a term of twenty
years without objection on the part of the authorities or of any third person, shall
continue in its enjoyment, even though he may not be able to show that he secured
proper permission.

ART. 504. The use of public waters is acquired:

(1) By administrative concession;

(2) By prescription for ten years.

The extent of the rights and obligations of the use shall be that established, in the first case, by the
terms of the concession, and, in the second case, by the manner and form, in which the waters have
been used.

The third requisite of Article 643 of the Civil Code refers to the matter of indemnity to the owner of the
servient estate. As correctly pointed out by the petitioner it would be nigh impossible now to present
actual proof that such indemnity has been paid, considering the number of years that have elapsed
since the easement had first come into existence and the subsequent changes in ownership of the
lots involved. It stands to reason, however, that if the easement had continued for so long in fact, not
only before Lot 433 was registered in 1923 but for thirty years thereafter, until cut off by the
respondents in 1953 the legal requirement in question must have been complied with.

The other requisite of Article 643 is that "the proposed right of way is the most convenient and the
least onerous to third persons." The Court of Appeals stated that the petitioner has not established
this fact, and that "her own evidence reveals that her lot is abutting Sapang Tuyo on its southern
boundary, where from she can easily and directly draw the water necessary to irrigate her land." This
statement is an oversimplification. Proximity or abutment of a piece of land to a stream does not
necessarily carry with it the conclusion that water may conveniently be drawn directly therefrom for
irrigation. In the first place, the petitioner has pointed out in her brief, without contradiction by the
respondents, that the portion of her land which abuts Sapang Tuyo is precipice. Secondly, the trial
court made an ocular inspection of the premises and observed that the eastern and northeastern
portions of Lot 436 are lower than the southwestern, western and northwestern (the point where Lot
436 adjoins Lot 433) portions of the same. Finally, it would appear from the observation made by the
same court that the demolished canal is part of a system of conduits used to irrigate the lands of the
petitioner and the respondents as well as the surrounding estates belonging to other owners, and that
this system of conduits is of a permanent nature. The trial court's description bears repeating:

At the ocular inspection conducted on September 22, 1953, it was found that the
eastern and northeastern portions of Lot No. 436 are lower than the southern, western
and northwestern portions of the same; that about one-fourth (¼) only of the lot is
planted to palay and this palay is yellowish, scarce and could hardly merit attention to
produce any substantial quantity of palay; that this palay is planted in the eastern
portion of the same; that the palay planted on the land of defendant Gutierrez and on
the lot east of the land of the plaintiff is luxuriant green and had all the earmarks of
producing a good harvest; that the "pinitak" on the northwestern portion of the land of
the plaintiff is higher than the rest of the land; that on this portion is found a canal about
one and a half (1-½) meters deep which canal runs south and parallel to the boundary
line of Lot 436 owned by the plaintiff and Lot No. 435 and is one and a half (1-½)
meters from this boundary; that along the southern boundary of Lot No. 433 that
separates it from Lot No. 436 is a "minangon" or a dike and water flows continuously
from one 'pinitak' to another of said Lot No. 433 up to a point between points "15" and
"14" of said lot as shown on Exhibit "A" ... that this water passes from one "pinitak" to
another through openings made on the "pilapils" or small dikes that separate the
several "pinitaks" on this Lot No. 433; that the western side of the canal that was
demolished is located on the boundary line of Lots Nos. 433 and 434 and this boundary
line is higher and some trees are found therein; that the new canal ... is short and the
old canal from point "13" to about point "7" of Lot No. 433 on this exhibit is still in use
although it is not clean; that Lot No. 434 owned by Antonio Mendoza is irrigated by two
(2) pipes coming from Lot No. 431 and by a canal that comes from Lot No. 431 and by
a canal that comes from the main irrigation canal located on the boundary line of these
two (2) lots 431 and 434; that this main irrigation canal is the canal that goes through
Lot No. 443 ... which canal ends farther east of Lot 448 ...; that this canal begins from
the dam farther west of these Lots Nos. 431, 434, 433 and 436.

xxx xxx xxx

The boundary line of the two (2) lots Nos. 433 and 434 shows that it is a "minangon",
a dike. It is extraordinarily high. From this situation, it can be concluded that the canal
along this boundary line must be big. To irrigate the southern part of Lot No. 433 would
not require a big and permanent canal if the same was used to irrigate the southern
part of Lot No. 433. Canal marked "W" which is a substitute canal is small and shallow.
From the remnants of the old and demolished canal, it is safe to assume that the canal
has been in existence for a long time as shown by some big trees on the high
"minangon." If it were to water only the southern part of the lot as claimed by
defendants, it would have been the same in size as the new canal mark "W" on Exhibit
"A." The construction of the new canal marked 'W' on the exhibit is a feeble attempt to
justify the alleged purpose of the old canal, but this attempt at coverage is laid bare by
the existence of the old canal that crossed Lot No. 433 ... Considering that the southern
portion of said lot is lower than the rest of the same, the Court believes that the
openings on the dike of the old canal would be sufficient to let water flow to the
southern portions of this lot. The western portion of this lot could have been watered
from the old canal ("X") or from the existing canal ("Z") on Exhibit "A". That being so,
there is only one explanation why the old canal ("X") is in existence and that is for the
use of Lot No. 436 and other lots farther east of Lot No. 436.
It is a reasonable conclusion from the foregoing that the demolished canal supplying water to Lot 436
of the petitioner was merely extension of the system of conduits established long ago, considering that
in view of the topography of the area and the proximity of the said lot to the main dike in Lot 433 it was
more convenient to make the connection therewith than to draw water directly from Sapang Tuyo.
Article 118 of the Spanish Law of Waters allows the creation of a compulsory easement of aqueduct
for the purpose of establishing or extending an irrigation system, and there is nothing to the contrary
in the Civil Code.

In any case the respondents are hardly in a position to avail of the registration of Lot 433 in 1923
without the corresponding registration of the easement on the title as an excuse to summarily terminate
it thirty years thereafter. The original registered owner allowed the easement to continue in spite of
such non-registration: the least that can be said is that he either recognized its existence as a
compulsory servitude on his estate or voluntarily agreed to its establishment and continuance. And
the respondent Guillermo Gutierrez, as the successor-in-interest to the, said owner by inheritance, is
not an innocent third person who could plead the absence of annotation on the title. Not only was he
aware of the existence of the easement when he inherited the property in 1927, but he likewise allowed
it to continue for twenty-six years after he acquired title. He is bound both by the act of his predecessor
and by his own.

WHEREFORE, the decision of the Court of Appeals is set aside, and that of the Court of First Instance
of Bataan affirmed, with costs against the respondents.

Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Fernando, Barredo and Villamor, JJ., concur.

Teehankee, J., took no part.