Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-15628 November 18, 1920
MANUEL SORIANO, plaintiff-appellee,
vs.
OSCAR STERNBERG, defendant-appellant.
Gibbs, McDonough and Johnson for appellant.
No appearance for appellee.

MALCOLM, J.:
By means of this action, the plaintiff desires to obtain a judicial order, to compel the defendant to close the windows in the wall of his house
adjacent to the property of the plaintiff, because the wall of defendant's house is less than 2 meters from the division line. The defendant pleads
prescription and relies exclusively upon these defense. The lower court agreed with the plaintiff's contention and ordered the windows of the defendant's
house to be closed, with costs against the defendant.
The facts, the law, and the issue are certain.
The case was submitted to the lower court upon the following stipulated facts:
1. That the wall of the house of defendant Oscar Sternberg, in which are found four windows and a gallery (upper story), two windows, one door and an
opening with wooden lattice (lower story), with the dimensions indicated in the diagram, Exhibit A, attached to, and made a part of this agreement, is 1
meter and 36 centimeters (1.36 m.) distant from the dividing line between the lot on which said building stands and the lot of the plaintiff.
2. That the building of the defendant has stood with the identical openings before mentioned, since the year 1905.
3. That both lawyers will inspect the building to determine precisely the distance existing between its outermost portion and a line erected on the
dividing line perpendicular to it, which distance they will embody in a written agreement to supplement the present.
4. That the views which defendant pretends to have over plaintiff's lot are direct, and that the windows and the gallery of plaintiff's edifice have direct
views on defendant's lot.
5. That in the Torrens titles which both parties have to their respective buildings, there does not appear any easement of view in plaintiff's title, nor any
right to easement in defendant's.
6. That considering these facts, the point at issue between both parties is submitted to the decision of the court.
The provisions of law upon which plaintiff bases his action concern easements, and are found in the Civil code. Reliance is principally made upon
the first paragraph of article 582 of the Civil code reading as follows: "No windows or balconies or other similar projections which directly overlook the
adjoining property may be opened or built without leaving a distance of not less than 2 meters between the wall in which they are built and such
adjoining property.
The provisions of law upon which the defendant grounds his defense concern prescription of actions, and are found in Chapter III of the Code of
Civil Procedure. The maximum time within which an action for relief can be brought is there fixed as within the years after t he case of action accrues.
The subject of easements of light and view is so thoroughly covered in two learned 3rd decisions handed down by the Chief Justice that it would be
highly unprofitable to enter this intricate field of the law. (Cortes vs. Yu-Tibo [1903], 2 Phil., 24; Fabie vs. Lichauco [1908], 11 Phil., 14). But here there is
no question of easement. The point now to be decided is whether or not a right of action to enforce article 582 of the Civil code may be lost by failure to
prosecute within the prescriptive period fixed by the Code of Civil Procedure.
It should first be noted that the defendant in this case has never prohibited the plaintiff from building on his, the plainti ff's, own land, any wall that
he may desire to construct. Further, it should be noted that the offending edifice of the defendant was constructed in 1905. This was the year when the
defendant violated the law. This was the date when the cause of action accrued. Nevertheless, the windows complained of were permitted to be open for
thirteen years without protest. The plaintiff must, consequently, by reason of his own laches, be considered to have waived any right which he may have
had to compel the windows to be closed. The argument of plaintiff that it was only in 1917, when he bought the land in questi on, that the statute of
limitations began to run, is not convincing, for the general rule is, that once the statute begins to run, it never stops, and the transfer of the cause of
action does not have the effect of suspending its operation. (Ervin vs. Brooks [1892], 111 N. C., 358.)lawph!l.net
It is our holding that plaintiff right of action under article 582 of the Civil Code accrued in 1905 when the windows in defendant's house were
opened, and that, in accordance with Chapter III of the Code of Civil Procedure, his action has prescribed.
A point was made at the hearing of this case as to the right of the attorney for the appellee to appear and make an oral argument. The record
discloses that the appellee was not permitted to file a brief because of his failure to ask for an extension of time within the period fixed by the rules of this
court. (Rules 22, 23.) This failure does not, however, prohibit counsel from making an oral argument at the hearing, but does prohibit him from filing a
memorandum or brief at that time, for this would be tantamount to absolving him from his failure to file his brief in time. The oral argument of appellee
has been noted and has been taken into consideration.
Judgment is reversed, and the plaintiff's complaint is dismissed, with costs of both instances against him. So ordered.
Mapa, C.J., Araullo, Street, Avancea and Villamor, JJ., concur.
FIRST DIVISION
[G.R. No. 112331. May 29, 1996]
ANASTACIA QUIMEN, petitioner, vs. COURT OF APPEALS and YOLANDA Q. OLIVEROS, respondents.
D E C I S I O N
BELLOSILLO,J.:
IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will cause least prejudice shall be chosen. However, if the two
circumstances do not concur in a single tenement, the way where damage will be least shall be used even if not the shortest route.[1] This is so
because least prejudice prevails over shortest distance. This means that the court is not bound to establish what is the shortest distance; a longer way
may be adopted to avoid injury to the servient estate, such as when there are constructions or walls which can be avoided by a round about way, or to
secure the interest of the dominant owner, such as when the shortest distance would place the way on a dangerous decline.
Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together with her brothers Sotero, Sulpicio, Antonio and sister Rufina
inherited a piece of property situated in Pandi, Bulacan. They agreed to subdivide the property equally among themselves, as they did, with the shares of
Anastacia, Sotero, Sulpicio and Rufina abutting the municipal road. The share of Anastacia, located at the extreme left, was designated as Lot No. 1448-
B- 1. It is bounded on the right by the property of Sotero designated as Lot. No. 1448-B-2. Adjoining Soteros property on the right are Lots Nos. 1448-B-
3 and 1448-B-4 originally owned by Rufina and Sulpicio, respectively, but which were later acquired by a certain Catalina Santos. Located directly
behind the lots of Anastacia and Sotero is the share of their brother Antonio designated as Lot No. 1448-B-C which the latter divided into two (2) equal
parts, now Lots Nos. 1448-B-6-A and 1448-B-6-B, each with an area of 92 square meters. Lot No. 1448-B-6-A is located behind Anastacias Lot No. 1448-
B-1, while Lot No. 1448-B-6-B is behind the property of Sotero, father of respondent Yolanda.
In February 1982 Yolanda purchased Lot No. 1448-B-6-A from her uncle Antonio through her aunt Anastacia who was then acting as his
administratrix. According to Yolanda, when petitioner offered her the property for sale she was hesitant to buy as it had no access to a publ ic road. But
Anastacia prevailed upon her to buy the lot with the assurance that she would give her a right of way on her adjoining property for P200.00 per square
meter.
Thereafter, Yolanda constructed a house on the lot she bought using as her passageway to the public highway a portion of Anastacia s property. But
when Yolanda finally offered to pay for the use of the pathway Anastacia refused to accept the payment. In fact she was thereafter barred by Anastacia
from passing through her property.[2]
In February 1986 Yolanda purchased the other lot of Antonio Quimen, Lot No. 1448-B-6-B, located directly behind the property of her parents who
provided her a pathway gratis et amorebetween their house, extending about nineteen (19) meters from the lot of Yolanda behind the sari-sari store of
Sotero, and Anastacias perimeter fence. The store is made of strong materials and occupies the entire frontage of the lot measuring four (4) meters wide
and nine meters (9) long. Although the pathway leads to the municipal road it is not adequate for ingress and egress. The municipal road cannot be
reached with facility because the store itself obstructs the path so that one has to pass through the back entrance and the facade of the store to reach the
road.
On 29 December 1987 Yolanda filed an action with the proper court praying for a right of way through Anastacia s property. An ocular inspection upon
instruction of the presiding judge was conducted by the branch clerk of court. The report was that the proposed right of way was at the extreme right of
Anastacias property facing the public highway, starting from the back of Soterossari-sari store and extending inward by one (1) meter to her property
and turning left for about five (5) meters to avoid the store of Sotero in order to reach the municipal road[3] and the way was unobstructed except for an
avocado tree standing in the middle.[4]
But on 5 September 1991 the trial court dismissed the complaint for lack of cause of action, explaining that the right of way through Soteros property was
a straight path and to allow a detour by cutting through Anastacias property would no longer make the path straight. Hence the trial court concluded
that it was more practical to extend the existing pathway to the public road by removing that portion of the store blocking the path as that was the
shortest route to the public road and the least prejudicial to the parties concerned than passing through Anastacias propert y.[5]
On appeal by respondent Yolanda, the Court of Appeals reversed the lower court and held that she was entitled to a right of way on petitioners property
and that the way proposed by Yolanda would cause the least damage and detriment to the servient estate. [6] The appellate court however did not award
damages to private respondent as petitioner did not act in bad faith in resisting the claim.
Petitioner now comes to us imputing ERROR to respondent Court of Appeals: (a) in disregarding the agreement of the parties; ( b) in considering
petitioners property as a servient estate despite the fact that it does not abut or adjoin the property of private respondent; and, (c) in holding that the
one-meter by five-meter passage way proposed by private respondent is the least prejudicial and the shortest distance to the public road.
Incidentally, petitioner denies having promised private respondent a right of way. She claims that her agreement with private respondent was to provide
the latter with a right of way on the other lot of Antonio Quimen under her administration when it was not yet sold to private respondent. Petitioner
insists that passing through the property of Yolandas parents is more accessible to the public road than to make a detour to her property and cut down
the avocado tree standing thereon.
Petitioner further argues that when Yolanda purchased Lot No. 1448-B-6-B in 1986 the easement of right of way she provided her (petitioner) was ipso
jure extinguished as a result of the merger of ownership of the dominant and the servient estates in one person so that there was no longer any
compelling reason to provide private respondent with a right of way as there are other surrounding lots suitable for the purpose. Petitioner strongly
maintains that the proposed right of way is not the shortest access to the public road because of the detour and that, moreover, she is likely to suffer the
most damage as she derives a net income of P600.00 per year from the sale of the fruits of her avocado tree, and considering that an avocado has an
average life span of seventy (70) years, she expects a substantial earning from it. [7]
But we find no cogent reason to disturb the ruling of respondent appellate court granting a right of way to private respondent through petitioners
property. In fact, as between petitioner Anastacia and respondent Yolanda their agreement has already been rendered moot insofar as it concerns the
determination of the principal issue herein presented. The voluntary easement in favor of private respondent, which petitioner now denies but which the
court is inclined to believe, has in fact become a legal easement or an easement by necessity constituted by law. [8]
As defined, an easement is a real right on anothers property, corporeal and immovable, whereby the owner of the latter must refrain from doing or
allowing somebody else to do or something to be done on his property, for the benefit of another person or tenement. [9] It is jus in re aliena, inseparable,
indivisible and perpetual, unless extinguished by causes provided by law. A right of way in particular is a privilege constituted by covenant or granted by
law[10] to a person or class of persons to pass over anothers property when his tenement is surrounded by realties belonging to others without an
adequate outlet to the public highway. The owner of the dominant estate can demand a right of way through the servient estate provided he indemnifies
the owner thereof for the beneficial use of his property. [11]
The conditions sine qua non for a valid grant of an easement of right of way are: (a) the dominant estate is surrounded by other immovables without an
adequate outlet to a public highway; (b) the dominant estate is willing to pay the proper indemnity; (c) the isolation was not due to the acts of the
dominant estate; and, (d) the right of way being claimed is at a point least prejudicial to the servient estate. [12]
A cursory examination of the complaint of respondent Yolanda for a right of way[13] readily shows that
[E]ven before the purchase of the said parcels of land the plaintiff was reluctant to purchase the same for they are enclosed with permanent
improvements like a concrete fence and store and have (sic) no egress leading to the road but because of the assurance of the defendant that plaintiff will
be provided one (1) meter wide and five (5) meters long right of way in the sum of P200.00 per square meter to be taken from Anastacias lot at the side
of a concrete store until plaintiff reach(es) her fathers land, plaintiff was induced to buy the aforesaid parcels of land x x x. That the aforesaid right of
way is the shortest, most convenient and the least onerous leading to the road and being used by the plaintiffs predecessors-in-interest from the very
inception x x x.
The evidence clearly shows that the property of private respondent is hemmed in by the estates of other persons including that of petitioner; that she
offered to pay P200.00 per square meter for her right of way as agreed between her and petitioner; that she did not cause the isolation of her property;
that the right of way is the least prejudicial to the servient estate.[14] These facts are confirmed in the ocular inspection report of the clerk of court, more
so that the trial court itself declared that [t]he said properties of Antonio Quimen which were purchased by plaintiff Yolanda Quimen Oliveros
were totally isolated from the public highway and there appears an imperative need for an easement of right of way to the public highway. [15]
Petitioner finally insists that respondent court erroneously concluded that the right of way proposed by private respondent is the least onerous to the
parties. We cannot agree. Article 650 of the New Civil Code explicitly states that the easement of right of way shall be established at the point least
prejudicial to the servient estate and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the
shortest. The criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance although this is a matter ofjudicial
appreciation. While shortest distance may ordinarily imply least prejudice, it is not always so as when there are permanent structures obstructing
the shortest distance; while on the other hand, the longest distance may be free of obstructions and the easiest or most convenient to pass through. In
other words, where the easement may be established on any of several tenements surrounding the dominant estate, the one where the way
is shortest and will cause the least damage should be chosen. However, as elsewhere stated, if these two (2) circumstances do not concur in a single
tenement, the way which will cause the least damage should be used, even if it will not be the shortest. [16] This is the test.
In the trial court, petitioner openly admitted -
Q. You testified during your direct examination about this plan, kindly go over this and please point to us in what portion of this plan is the house or
store of the father of the (plaintiff)?
A. This one, sir (witness pointed a certain portion located near the proposed right of way).
xxx xxx xxx
Q. Now, you will agree with me x x x that this portion is the front portion of the lot owned by the father of the plaintiff and which was (sic) occupied by
a store made up of strong materials?
A. It is not true, sir.
Q. What materials does (sic) this store of the father of the plaintiff made of?
A. Hollow blocks and the side is made of wood, sir.
xxx xxx xxx
Q. Just before your brother disposed that 1/2 portion of the lot in question, what right of way does (sic) he use in reaching the public road, kindly point to
this sketch that he is (sic) using in reaching the public road?
A. In my property, sir.
Q. Now you will agree with me x x x the main reason why your brother is (sic) using this property is because there was a store located near this portion?
A. Yes, and according to the father of Yolanda there is no other way than this, sir.[17]
The trial court found that Yolandas property was situated at the back of her fathers property and held that there existed an available space of about
nineteen (19) meters long which could conveniently serve as a right of way between the boundary line and the house of Yolanda s father; that the vacant
space ended at the left back of Soteros store which was made of strong materials; that this explained why Yolanda requested a detour to the lot of
Anastacia and cut an opening of one (1) meter wide and five (5) meters long to serve as her right of way to the public highway. But notwithstanding its
factual observations, the trial court concluded, although erroneously, that Yolanda was not entitled to a right of way on pet itioners property since a
detour through it would not make the line straight and would not be the route shortest to the public highway.
In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared that the proposed right of way of Yolanda, which is one (1) meter wide
and five (5) meters long at the extreme right of petitioners property, will cause the least prejudice and/or damage as compared to the suggested passage
through the property of Yolanda s father which would mean destroying the sari-sari store made of strong materials. Absent any showing that these
findings and conclusion are devoid of factual support in the records, or are so glaringly erroneous, this Court accepts and adopts them. As between a
right of way that would demolish a store of strong materials to provide egress to a public highway, and another right of way which although longer will
only require an avocado tree to be cut down, the second alternative should be preferred. After all, it is not the main function of this Court to analyze or
weigh the evidence presented all over again where the petition would necessarily invite calibration of the whole evidence considering primaril y the
credibility of witnesses, existence and relevancy of specific surrounding circumstances, their relation to each other, and the probabilities of the
situation.[18] In sum, this Court finds that the decision of respondent appellate court is thoroughly backed up by law and the evidence.
WHEREFORE, no reversible error having been committed by respondent Court of Appeals, the petition is DENIED and the decision subject of review is
AFFIRMED. Costs against petitioner.
SO ORDERED.
Padilla (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-10619 February 28, 1958
LEOGARIO RONQUILLO, ET AL., plaintiffs-appellants,
vs.
JOSE ROCO, as Administrator of VICENTE, ROCO Y. DOMINGUEZ ET AL., defendants-appellees.
Moises B. Cruz for appellants.
Vicente Roco, Jr. for appellees.
MONTEMAYOR, J.:
Involving as it does only a question of law, the present appeal from the order of the Court of First Instance of Camarines Sur, dated March 6, 1955,
dismissing the amended and supplemental complaint of plaintiffs on motion of defendants that it did not state a cause of action, was taken directly to
this Court.
The facts and the issue involved in the appeal are well and correctly stated in the appealed order, the pertinent portion of which we are reproducing and
making our own:
The amended and supplemental complaint alleged that the plaintiffs have been in the continuous and uninterrupted use of a road or passage way which
traversed the land of the defendants and their predecessors in interest, in going to Igualdad Street and the market place of Naga City, from their
residential land and back, for more than 20 years; that the defendants and the tenants of Vicente Roco, the predecessors in interest of the said
defendants have long recognized and respected the private legal easement of road right of way of said plaintiffs; that on May 12, 1953, the defendants
Jose Roco thru his co-defendants, Raymundo Martinez and their men with malice aforethought and with a view to obstructing the plaintiffs' private legal
easement over the property of the late Vicente Roco, started constructing a chapel in the middle of the said right of way construction actually impeded,
obstructed and disturbed the continuous exercise of the rights of the plaintiffs over said right of way; that on July 10, 1954 the new defendants Natividad
Roco and Gregorio Miras, Jr. with the approval of the defendant, Jose Roco and with the help of their men and laborers, by me ans of force, intimidation,
and threats, illegally and violently planted wooden posts, fenced with barbed wire and closed hermitically the road passage way and their right of way in
question against their protests and opposition, thereby preventing them from going to or coming from their homes to Igualdad Street and the public
market of the City of Naga.
It is very clear from the allegations of the plaintiffs in their amended and supplemental complaint, that they claim to have acquired the easement of right
of way over the land of the defendants and the latter's predecessors in interest, Vicente Roco, thru prescription by their continuous and uninterrupted
use of a narrow strip of land of the defendants as passage way or road in going to Igualdad Street and the public market of Naga City, from their
residential land or houses, and return.
The only question therefore to determine in this case, is whether an easement of right of way can be acquired thru prescription.
The dismissal was based on the ground that an easement of right of way though it may be apparent is, nevertheless, discontinuous or intermittent and,
therefore, cannot be acquired through prescription, but only by virtue of a title. Under old as well as the New Civil Code, e asements may be continuous
discontinuous (intermittent), apparent or non-apparent, discontinuous being those used at more or less long intervals and which depend upon acts of
man (Articles 532 and 615 of the Old and New Civil Codes, respectively). Continuous and apparent easements are acquired either, by title or prescription,
continuous non-apparent easements and discentinuous ones whether apparent or not, may be acquired only by virtue of a title (Articles 537 and 539, and
620 and 622 of the Old and New Civil Codes, respectively).
Both Manresa and Sanchez Roman are of the opinion the easement of right of way is a discontinuous one:
En cambio, las servidumbres discontinues se ejercitan por un hecho del hombre, y precisamente por eso son y tienen que ser di scontinuas, porque es
imposible fisicamente que su uso sea incesante. Asi, la servidumbre de paso es discontinua, porque no es posible que el hombre este pasando
continuamente por el camino, vereda o senda de que se trate. (4 Manresa, Codigo Civil Espaol, 5th ed, p. 529).
. . . "5 Por razon de los modos de disfrutar las servidumbres, en continuas y discontinuas (1). Lascontinuas son aquelles cuyo uso es o puede ser
incesante, sin la intervencion de ningun hecho del hombre, como son las de luces y otras de la misma especie; y las discontinuas, las que se usan
intervalos, mas o menos largos, y dependen de actos del hombre, como las de sen senda, carrera y otras de esta clase. (3 Sanchez Roman, Derecho Civil,
p. 488).
Under the provisions of the Civil Code, old and new, particularly the articles thereof aforecited, it would therefore appear that the easement of right of
way may not be acquired through prescription. Even Article 1959 of the Old Civil Code providing for prescription of ownership and other real rights in
real property, excludes therefrom the exception established by Article 539, referring to discontinuous easements, such as, easement of right of way.
(Bargayo vs. Camumot, 40 Phil., 857, 867).
In the case of Cuayong vs. Benedicto, 37 Phil., 781 where the point in issue was whether or not vested rights in a right of way can be acquired through
user from time immemorial, this Court said:
It is evident, therefore, that no vested right by user from time immemorial had been acquired by plaintiffs at the time the Civil Code took effect. Under
that Code (Article 539) ino discontinuous easement could be acquired by prescription in any event.
However, in the case of Municipality of Dumangas is Bishop of Jaro, 34 Phil., 545, this same Tribunal held that the continued use by the public of a path
over land adjoining the Catholic church in going to and from said church through its side door, has given the church the right to such use by prescription,
and that because of said use by the public, an easement of right of way over said land has been acquired by prescription, not only by the church, but also
by the public, which without objection or protest on the part of the owner of said land, had continually availed itself of the easement.
The minority of which the writer of this opinion is a part, believes that the easement of right of way may now be acquired through prescription, at least
since the introduction into this jurisdiction of the special law on prescription through the Old Code of Civil Procedure, Act No. 190. Said law, particularly,
Section 41 thereof, makes no distinction as to the real rights which are subject to prescription, and there would appear to be no valid reason, at least to
the writer of this opinion, why the continued use of a path or a road or right of way by the party, specially by the public, for ten years or more, not by
mere tolerance of the owner of the land, but through adverse use of it, cannot give said party a vested right to such right of way through prescription.
The uninterrupted and continuous enjoyment of a right of way necessary to constitute adverse possession does not require the use thereof every day for
the statutory period, but simply the exercise of the right more or less frequently according to the natur e of the use. (17 Am. Jur. 972)
Even under the case of Cuaycong vs. Benedicto (supra), this Tribunal insinuated the rule that no discontinuous easement, like an easement of right of
way, may, under Article 539 of the Old Civil Code, be acquired, might possibly have been changed by the provisions of the Code of Civil Procedure
relative to prescription.
. . . Assuming, without deciding, that this rule has been changed by the provisions of the present Code of Civil Procedure relating to prescription, and that
since its enactment discontinuous easement of acquired by prescription, it is clear that this would not by avail plaintiffs. The Code of Civil Procedure
went into effect on October 1, 1901. The term of prescription for the acquisition of right in real estate is fixed by the Code (section 41) at ten years. The
evidence shows that in February, 1911, before the expiration of the term of ten years since the time the Code of Civil Procedure took effect, the defendants
interrupted the use of the road by plaintiffs by constructing and maintaining a toll gate on, it collecting toll from persons making use of it with carts and
continued to do so until they were enjoin by the granting of the preliminary injunction by the trial court in December 1912. . . (Cuayong vs. Benedicto, 37
Phil., 781, 796).
Professor Tolentino in his Commentaries and Jurisprudence on the Civil Code, Vol. I, p. 340, would appear to be of the opinion that under, the provision
of the Code of Civil Procedure relative to prescription, even discontinuous easements, like the easement right of way, may be acquired through
prescription:
. . . "It is submitted that under Act No. 190, even discontinuous servitudes can be acquired by prescription, provided it can be shown that the servitude
was actual, open, public, continuous, under a claim of title exclusive of any other right and adverse to all other claimants'."
However, the opinion of the majority must prevail, and it is held that under the present law, particularly, the provisions of the Civil Code, old and new,
unless and until the same is changed or clarified, the easement of right of way may not be acquired through prescription.
In view of the foregoing, the order appealed from is hereby affirmed. No costs.
Bengzon, Bautista Angelo, Labrador, Concepcion, Endencia, and Felix, JJ., concur.
Padilla, J., concurs in the result.


Separate Opinions
REYES, J.B.L., J., concurring:
I would like to elaborate my reasons for concurring with the majority in declaring the easement of right of way not acquirabl e by prescription.
The essence of this easement ("servidumbre de paso") lies in the power of the dominant owner to cross or traverse the servient tenement without being
prevented or disturbed by its owner. As a servitude, it is a limitation on the servient owner's rights of ownership, because it restricts his right to exclude
others from his property. But such limitation exists only when the dominant owner actually crosser, or passes over the servient estate; because when he
does not, the servient owner's right of exclusion is perfect and undisturbed. Since the dominant owner can not be continually and uninterruptedly
crossing the servient estate, but can do so only at intervals, the easement is necessarily of an intermittent or discontinuous nature.
Because possession of a right consists in the enjoyment of that right (old Civil Code, Art. 430; Art. 423, new Civil Code) and to enjoy a right is to exercise
it, it follows that the possession (enjoyment or exercise) of a right of way is intermittent and discontinuous. From this pre mise, it is inevitable to
conclude, with Manresa and Sanchez Roman, that such easement can not be acquired by acquisitive prescription (adverse possession) because the latter
requires that the possession be continuous or uninterrupted (old Civil Code, Art. 1941; new Civil Code, Art. 1118).
The Code of Civil Procedure (Act 190) did not change the situation. Observe that its section 41, in conferring prescriptive title upon "ten years adverse
possession" qualifies it by the succeeding words "uninterruptedly continued for ten years which is the same condition of cont inuity that is exacted by the
Civil Code.
SEC. 41. Title to Land by Prescription. Ten years actual adverse possession by any person claiming to be the owner for that time of any land or interest
in land, uninterruptedly continued for ten years by occupancy, descent, grants, or otherwise, in whatever way such occupancy may have commenced or
continued, shall vest in every actual occupant or possessor of such land a full and complete title, saving to the persons under disabilities the rights
secured the next section. In order to constitute such title by prescription or adverse possession, the possession by the claimant or by the person under or
through whom he claims must have been actual, open, public, continous, under a claim of title exclusive of any other right and adverse to all other
claimants. But failure to occupy or cultivate land solely by reason of war shall not be deemed to constitute an interruption of possession of the claimant,
and his title by prescription shall he complete, if in other regrets perfect, notwithstanding such failure to occupy or cultivate the land during the
continuance of war.
The case of Municipality of Dumangas vs. Bishop of Jaro, 34 Phil. 541, does not, if properly analyzed, constitute authority to hold that the easement of
right of way is acquirable by prescription or adverse possession. The Court there said:
The record shows that the church of the pueblo of Dumangas was constructed in or about the year 1987; that wall on the southeast side adjoins the
building lot in question; and that since the construction of the church there has been a side door in this wall through which the worshippers attending
divine service enter and leave, they having to pass over and cross the land in question. It is therefore to be presumed that the use of said side door al so
carries with it the use by faithful Catholics of the municipal land over which they have had to pass in order to gain access to said place of worship, and, as
this use of the land has been continuous, it is evident that the Church has acquired a right to such use by prescription, in view of the time that has elapsed
since the church was built and dedicated to religious worship, during which period the municipality has not prohibited the passage over the land by the
persons who attend services customarily held in said church.
The record does not disclose the date when the Government ceded to the Church the land on which the church building was afterwards erected, nor the
date of the laying out of the adjacent square that is claimed by the municipality and on which the side door of the church, which is used as an entrance by
the people who frequent this building, gives. There are good grounds for presuming that in apportioning lands at the time of the establishment of the
pueblo of Dumangas and in designating the land adjacent to the church as a public square, this latter was impliedly encumbered with the easement of a
right of way to allow the public to enter and leave the church a case provided for by article 567 of the Civil Code for the municipality has never
erected any building or executed any work which would have obstructed the passage and access to the side door of the church, and the public has been
enjoying the right of way over the land in question for an almost immemorable length of time. Therefore an easement of right of way over said land has
been acquired by prescription, not only by the church, but also by the public which, without objection or protest, has continually availed itself of the
easement in question. (34 Phil., pp. 545-546).
It will be seen that the ratio decidendi of that case lies in the application of Article 567 of the old Civil Code that provides as follows:
ART. 567. When an estate acquired by purchase, exchange, or partition is enclosed by other estates of the vendor, exchanger, or co-owner, the latter shall
be obliged to grant a right of way without indemnity, in the absence of an agreement to the contrary.
Bearing in mind the provisions of the article quoted in relation to the wording of the decision in the Dumangas case, it can be seen that what the court
had in mind is that when the Spanish Crown apportioned the land occupied by the Church of Dumangas, it impliedly burdened the neighboring public
square (which was also Crown property at the time) with an easement of right of way to allow the public to enter and leave the church, because without
such easement the grant in favor of ecclesiastical authorities would be irrisory: what would be the use of constructing a church if no one could enter it?
Now, if there was an implied grant of the right of way by the Spanish Crown, it was clearly unnecessary to justify the existence of the easement through
prescriptive acquisition. Why then does the decision repeatedly speak of prescription? Plainly, the word "prescription" was used in the decision not in the
sense of adverse possession for ten or thirty years, but in the sense of "immemorial usage" that under the law anterior to the Civil Code of 1889, was one
of the ways in which the servitude of right of way could be acquired. 1 This view is confirmed by the fact that throughout the passages hereinabove
quoted, the court's decision stresses that the people of Dumangas have been passing over the public square to go to church since the town was founded
and the church was built, an "almost immemorable length of time." It would seem that the term "priscription" used in said case was merely a loose
expression that is apt to mislead unless the court's reasoning is carefully analyzed.
Since 1889, however, the Civil Code repealed the prior legislation; and thereafter the right of way could only be acquired by title and not by adverse
possession (usucapio), saving those servitudes already acquired before the Code came into effect (Decisions, Supreme Court of Spain 27 Oct. 1900, 1st
February 1912; 11 May 1927, and 7 January 1920).
Paras, C.J. and Reyes A., J., concur.
FIRST DIVISION
[G.R. No. 125339. June 22, 1998]
CRESENCIA CRISTOBAL, ROBERTO MAKIMKIM, DAMASO MAKIMKIM, SPOUSES SALVADOR HERMALINO and PONCIANA MAKIMKIM,
MILAGROS MAKIMKIM, REMEDIOS MAKIMKIM, SPOUSES FRANCISCO ESTANISLAO and FLORDELIZA MAKIMKIM, ERLINDA MAKIMKIM,
JOSE MAKIMKIM and GINA MAKIMKIM, Petitioners, vs. COURT OF APPEALS, CESAR LEDESMA, INC., SPOUSES JESUS C. PACIONE and
LERMA B. PACIONE, Respondents.
D E C I S I O N
BELLOSILLO, J.:
This petition for review seeks the reversal of the decision of respondent Court of Appeals of 16 January 1996 in CA-G.R. CV Case No. 37273, "Cresencia
Cristobal, et al. v. Cesar Ledesma, Inc., et al.,"[1] which affirmed in toto the decision of the RTC-Br. 81, Quezon City,[2] dismissing herein petitioners
complaint for easement of right of way, and the Resolution of 14 June 1996 denying their motion for reconsideration.
Petitioners own a house and lot situated at No. 10 Visayas Avenue Extension, Quezon City, where they have been residing from 1961 to the
present. Respondent Cesar Ledesma, Inc., on the other hand, is the owner of a subdivision at Barrio Culiat along Visayas Avenue which once included
the disputed residential lots, Lot 1 and Lot 2, with areas of 164 square meters and 52 square meters, respectively, located adjacent to petitioners
property. Lots 1 and 2 were originally part of a private road known as Road Lot 2 owned exclusively by Cesar Ledesma, Inc. Petitioners were using Road
Lot 2 in going to and from the nearest public road. When Visayas Avenue became operational as a national road in 1979, Cesar Ledesma, Inc., filed a
petition before the RTC of Quezon City to be allowed to convert Road Lot 2 into residential lots.[3] The petition was granted, hence, Road Lot 2 was
converted into residential lots designated as Lot 1 and Lot 2. Subsequently, Cesar Ledesma, Inc., sold both lots to Macario Pacione in whose favor
Transfer Certificates of Title were correspondingly issued. In turn, Macario Pacione conveyed the lots to his son and daughter-in-law, respondent
spouses Jesus and Lerma Pacione.
When the Pacione spouses, who intended to build a house on Lot 1, visited the property in 1987, they found out that the lot was occupied by a squatter
named Juanita Geronimo and a portion was being used as a passageway by petitioners to and from Visayas Avenue. Accordingly, the spouses
complained about the intrusion into their property to the Barangay Office. At the barangay conciliation proceeding, petitioners offered to pay for the use
of a portion of Lot 1 as passageway but the Pacione spouses rejected the offer. When the parties failed to arrive at an amicable settlement, the spouses
started enclosing Lot 1 with a concrete fence.
Petitioners protested the enclosure alleging that their property was bounded on all sides by residential houses belonging to different owners and had no
adequate outlet and inlet to Visayas Avenue except through the property of the Paciones. As their protests went unheeded, petitioners instituted an
action for easement of right of way with prayer for the issuance of a temporary restraining order (TRO).
On 3 June 1987 the trial court issued a TRO directing the Pacione spouses to cease and desist from fencing the disputed property. The Paciones objected
arguing that petitioners were not entitled to a TRO since they showed no valid basis for its issuance, and that petitioners had no cause of action against
respondents because there were actually two (2) accessible outlets and inlets - a pathway right in front of their gate leading towards an asphalted 5-meter
road to the left, and across an open space to the right adjacent to respondents lot likewise leading to Visayas Avenue.
At the instance of the parties, the trial court ordered an ocular inspection of the property. A Board of Commissioners was constituted for that purpose
composed of representatives chosen by the parties, with Deputy Sheriff Florencio D. Dela Cruz, Jr., as representative of the court.
On 3 January 1990 Deputy Sheriff Dela Cruz, Jr., submitted his Report[4] relative to the ocular inspection on the litigated lots -
x x x there is another way from the Visayas Ave. to the plaintiffs lot existing at the time of the ocular inspection. Plaintiffs can use the street originating
from Visayas Avenue, identified as Ma. Elena St., which is about 2.5 m. in width and about 150 m. in length up to an intersection, meeting a private road,
which is about 100 meters in length, that ends at the lower portion of the right side of the adjacent vacant lot previously identified, and at the back of a
lot with concrete fence located at the back of the plaintiffs property. From that point the plaintiff must enter the adjacent vacant lot (entry to the said
lot is still possible during the ocular inspection because the barbed wires were not properly placed) to reach a gate at the side of the plaintiffs lot, about
16 m. from the end of the private road, allegedly used by the plaintiffs before the adjacent lot was enclosed by barbed wires. According to Atty. Mendoza,
counsel for the defendants, that gate no longer exist(ed) at the time of the ocular inspection.
As may be observed from the above report, only one outlet was indicated by Sheriff Dela Cruz, Jr. The other outlet across an open space to the right
referred to by the Pacione spouses was not reflected thereon. However, on the basis of the report as well as the testimonial and documentary evidence of
the parties, the trial court dismissed the complaint holding that one essential requisite of a legal easement of right of way was not proved, i.e., the
absence of an alternative adequate way or outlet to a public highway, in this case, Vis ayas Avenue.[5]
Petitioners appealed to the Court of Appeals arguing that the trial court erred in finding that they failed to sufficiently establish the essential fact that
from their property no adequate outlet or access to a public highway existed; and, that the conversion of the Road Lot into two (2) residential lots by
Cesar Ledesma, Inc., was violative of PD No. 957, hence illegal, and the titles issued as a consequence of the conversion were null and void.
On 16 January 1996 the Court of Appeals rendered its assailed decision affirming the findings of the trial court -
The burden of proving the existence of the requisites of easement of right of way lies on the owner of the dominant estate. In the case at bar, plaintiff-
appellants failed to prove that there is no adequate outlet from their property to a public highway. Convenience of the dominant estate is not a gauge for
the grant of compulsory right of way. The true standard for the grant of the legal right is adequacy. Hence, when there is already an existing adequate
outlet from the dominant estate to a public highway, as in this case, even if the outlet, for one reason or another, be inconvenient, the need to open up
another servitude is entirely unjustified. To justify the imposition of an easement of right of way, there must be real, not fictitious or artificial necessity
for it. A right of way is legally demandable, but the owner of the dominant estate is not at liberty to impose one based on arbitrary choice. Art. 650 of
the Civil Code provides for the criteria in the establishment of such easement but it has been settled that the criterion of least prejudicial prevails over
shortest distance. Each case must be weighed according to its individual merits and judged according to the sound discretion of the court (Costabella
Corporation v. Court of Appeals, G.R. No. 80511, 193 SCRA 333 [1991]).
The second assigned error has no legal leg to stand on since plaintiff-appellants cannot just introduce a new issue to an already settled one, especially for
the first time on appeal.
Their motion for reconsideration having been denied, petitioners now come to us with the following assignment of errors: First, the Court of Appeals
erred in applying the doctrine inCostabella, considering that in the instant case the four (4) requisites that must be complied with by an owner of the
dominant estate in order to validly claim a compulsory right of way have been clearly established by petitioners, contrary to the Decision appealed from,
and that the facts in Costabella are not the same as in the present case. Second, the Court of Appeals seriously erred in holding that the question of
legality or illegality of the conversion of Road Lot 2 into two (2) residential lots by the Cesar Ledesma, Inc., is a new issue raised for the first time on
appeal, because such issue appeared in the complaint filed before the trial court.
Quite noticeably, petitioners first assigned error is essentially factual in nature, i.e., it merely assails the factual findings of both the Court of Appeals
and the trial court. Basic is the rule in this jurisdiction that only questions of law may be raised in a petition for review under Rule 45 of the 1997 Rules
of Civil Procedure. The jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals is limited to reviewing errors of law, the
findings of fact of the appellate court being conclusive.[6] We have emphatically declared that it is not the function of this Court to analyze or weigh such
evidence all over again, its jurisdiction being limited to reviewing errors of law that may have been committed by the lower court.[7]
Petitioners insist that their petition raises a question of law, that is, the correctness of the appellate courts ruling that one who has an existing
passageway, however inconvenient that passageway may be, is no longer entitled to an easement of right of way.
We do not agree. Questions of law are those that do not call for any examination of the probative value of the evidence presented by the parti es.[8] In
the instant case, petitioners' assignment of errors would have this Court go over the facts because it necessarily entails an examination of the evidence
and its subsequent re-evaluation to determine whether petitioners indeed have no sufficient outlet to the highway.
Petitioners next claim that the findings of the appellate court are based on misapprehension of facts, which circumstance warrants a review of the
appellate courts decision. Yet, they failed to sufficiently demonstrate this allegation in their pleadings. Absent a clear showing that the findings
complained of are totally devoid of support in the record, or that they are so glaringly erroneous as to constitute serious abuse of discretion, such findings
must stand.
At any rate, even assuming that the first assignment of error may be properly raised before this Court, we find no reversible error in the assailed
decision. To be entitled to a compulsory easement of right of way, the preconditions provided under Arts. 649 and 650 of the Civil Code must be
established. These are: (1) that the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; (2) that proper
indemnity has been paid; (3) that the isolation was not due to acts of the proprietor of the dominant estate; (4) that the ri ght of way claimed is at a point
least prejudicial to the servient estate and, in so far as consistent with this rule, where the distance from the dominant estate to a public highway may be
the shortest.[9] The burden of proving the existence of these prerequisites lies on the owner of the dominant estate.[10]
In the present case, the first element is clearly absent. As found by the trial court and the Court of Appeals, an outlet already exists, which is a
path walk located at the left side of petitioners property and which is connected to a private road about five hundred (500) meters long. The private
road, in turn, leads to Ma. Elena Street which is about 2.5 meters wide and, finally, to Visayas Avenue. This outlet was determined by the court a quo to
be sufficient for the needs of the dominant estate, hence petitioners have no cause to complain that they have no adequate outlet to Visayas Avenue.
Further, no evidence was adduced by petitioners to prove that the easement they seek to impose on private respondents property is to be es tablished at a
point least prejudicial to the servient estate. For emphasis, Lot 1 is only 164 square meters and an improvident imposition of the easement on the lot
may unjustly deprive private respondents of the optimum use and enjoyment of their property, considering that its already sma ll area will be reduced
further by the easement. Worse, it may even render the property useless for the purpose for which private respondents purchased the same.
It must also be stressed that, by its very nature, and when considered with reference to the obligations imposed on the servient estate, an easement
involves an abnormal restriction on the property rights of the servient owner and is regarded as a charge or encumbrance on the servient estate. Thus,
it is incumbent upon the owner of the dominant estate to establish by clear and convincing evidence the presence of all the preconditions before his claim
for easement of right of way may be granted. Petitioners miserably failed in this regard.
On the question of adequacy of the existing outlet, petitioners allege that the path walk is much longer, circuitous and inconvenient, as from Visayas
Avenue one has to pass by Ma. Elena St., turn right to a private road, then enter a vacant lot, and turn right again to exit from the vacant lot until one
reaches petitioners property.
We find petitioners concept of what is "adequate outlet" a complete disregard of the well-entrenched doctrine that in order to justify the imposition of an
easement of right of way there must be a real, not fictitious or artificial, necessity for it. Mere convenience for the dominant estate is not what is
required by law as the basis for setting up a compulsory easement. Even in the face of necessity, if it can be satisfied without imposing the easement,
the same should not be imposed.[11]
Thus, in Ramos v. Gatchalian,[12] this Court disallowed the easement prayed for - even if petitioner therein "had to pass through lots belonging to other
owners, as temporary ingress and egress, which lots were grassy, cogonal and greatly inconvenient due to flood and mud" -
because it would run counter to the prevailing jurisprudence that mere convenience for the dominant estate does not suffice to serve as basis for the
easement.
Also, in Floro v. Llenado,[13] we refused to impose an easement of right of way over petitioners property, although private respondents
alternative route was admittedly inconvenient because he had to traverse several rice lands and rice paddies belonging to different persons, not to
mention that said passage, as found by the trial court, was impassable during rainy season.
Admittedly, the proposed right of way over private respondents property is the most convenient, being the shorter and the mo re direct route to Visayas
Avenue. However, it is not enough that the easement be where the way is shortest. It is more important that it be where it will cause the least
prejudice to the servient estate.[14] As discussed elsewhere, petitioners failed to sufficiently demonstrate that the proposed right of way shall be at a
point least prejudicial to the servient estate.
The second assignment of error was likewise properly rejected by the appellate court. Primarily, the issue of legality or illegality of the conversion of the
road lot in question has long been laid to rest in LRC Case No. Q-1614[15] which declared with finality the legality of the segregation subdivision survey
plan of the disputed road lot. Consequently, it is now too late for petitioners to question the validity of the conversion of the road lot.
Finally, questions relating to non-compliance with the requisites for conversion of subdivision lots are properly cognizable by the National Housing
Authority (NHA), now the Housing and Land Use Regulatory Board (HLURB), pursuant to Sec. 22 of PD 957[16] and not by the regular
courts. Under the doctrine of primary administrative jurisdiction, [17] where jurisdiction is vested upon an administrative body, no resort to the courts
may be made before such administrative body shall have acted upon the matter.
WHEREFORE, Petition is DENIED. The 16 January 1996 Decision and the 14 June 1996 Resolution of the Court of Appeals denying reconsideration
thereof are AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr. (Chairman), Vitug, Panganiban and Quisumbing, JJ. concur.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 127549 January 28, 1998
SPOUSES CESAR and RAQUEL STA. MARIA and FLORCERFIDA STA. MARIA, petitioners,
vs.
COURT OF APPEALS, and SPOUSES ARSENIO and ROSLYNN FAJARDO, respondents.

DAVIDE, JR., J.:
This is an appeal under Rule 45 of the Rules of Court from the decision 1 of 18 December 1996 of the Court of Appeals in CA-G.R. CV No. 48473, which
affirmed with modification the 30 June 1994 Decision 2 of Branch 19 of the Regional Trial Court of Bulacan in Civil Case No. 77-M-92 granting the
private respondents a right of way through the property of the petitioners.
The antecedent facts, as summarized by the Court of Appeals, are as follows:
Plaintiff spouses Arsenio and Roslynn Fajardo are the registered owners of a piece of land, Lot No. 124 of the Obando Cadastre, containing an area of
1,043 square meters, located at Paco, Obando, Bulacan, and covered by Transfer Certificate Title (TCD No. T-147729 (M) of the Registry of Deeds of
Meycauayan, Bulacan (Exhibit "B", p. 153 Orig. Rec.). They acquired said lot under a Deed of Absolute Sale dated February 6, 1992 executed by the
vendors Pedro M. Sanchez, et al. (Annex "A", Complaint; pp. 7-8 ibid.).
Plaintiff's aforesaid Lot 124 is surrounded by Lot 1 (Psd 45412), a fishpond (Exh. "C-5"; p. 154, ibid.), on the northeast portion thereof; by Lot 126, owned
by Florentino Cruz, on the southeast portion; by Lot 6-a and a portion of Lot 6-b (both Psd-297786) owned respectively by Spouses Cesar and Raquel
Sta. Maria and Florcerfida Sta. Maria (Exhs. "C-2" and "C-3", ibid.), on the southwest; and by Lot 122, owned by the Jacinto family, on the northwest.
On February 17, 1992, plaintiff spouses Fajardo filed a complaint against defendants Cesar and Raquel Sta. Maria or Florcerfida Sta. Maria for the
establishment of an easement of right of way. Plaintiffs alleged that their lot, Lot 124, is surrounded by properties belonging to other persons, including
those of the defendants; that since plaintiffs have no adequate outlet to the provincial road, an easement of a right of way passing through either of the
alternative defendants' properties which are directly abutting the provincial road would be plaintiffs' only convenient, dire ct and shortest access to and
from the provincial road; that plaintiffs' predecessors-in-interest have been passing through the properties of defendants in going to and from their lot;
that defendants' mother even promised plaintiffs' predecessors-in-interest to grant the latter an easement of right of way as she acknowledged the
absence of an access from their property to the road; and that alternative defendants, despite plaintiffs' request for a right of way and referral of the
dispute to the barangay officials, refused to grant them an easement. Thus, plaintiffs prayed that an easement of right of way on the lots of defendants be
established in their favor. They also prayed for damages, attorney's fees and costs of suit.
Defendants, instead of filing an answer, filed a motion to dismiss (pp. 41-45, ibid.) on the ground that the lower court has no jurisdiction to hear the case
since plaintiffs failed to refer the matter to thebarangay lupon in accordance with Presidential Decree No. 1508. The lower court, however, in its Order
dated May 18, 1992, denied said motion on the premise that there was substantial compliance with the law.
On May 25, 1992, defendants filed a "Notice of Appeal" to the Supreme Court of the questioned order of the lower court denying their motion to dismiss,
under Rule 45 of the Rules of Court (p. 54, ibid.). On June 24, 1992, the lower court denied the notice of appeal for lack of merit (p. 86, ibid).
In the meantime, defendants filed a petition for review on certiorari of the lower court's Order dated May 18, 1992 (pp. 64-84, ibid.). In an Order dated
July 8, 1992, the Third Division of the Supreme Court denied said petition for failure to comply with Revised Circular Nos. 1-88 and Circular No. 28-01
(p. 97, ibid.). Defendants' motion for reconsideration was likewise denied with finality on July 20, 1992 (p. 96, ibid.).
Consequently, defendants filed their answer to the court below where they alleged that the granting of an easement in favor of plaintiffs would cause
them great damage and inconvenience; and that there is another access route from plaintiffs' lot to the main road through the property of Florentino
Cruz which was likewise abutting the provincial road and was being offered for sale. By way of counterclaim, defendants prayed for damages and
attorney's fees.
The parties not having settled their dispute during the pre-trial (p.120, Orig. Record), the court directed that an ocular inspection be conducted of the
subject property, designating the branch clerk of court as its commissioner. In time, an Ocular Inspection Report dated December 3, 1992 (Exhs. "J" and
"J- 1") was submitted. After trial on the merits, the lower court rendered the assailed decision granting plaintiffs' prayer for an easement of right of way
on defendants' properties. 3
The trial court found that based on the Ocular Inspection Report there was no other way through which the private respondents could establish a right of
way in order to reach the provincial road except by traversing directly the property of the petitioners. It further found that (a) no significant st ructure,
save for a wall or fence about three feet high, would be adversely affected; (b) there was sufficient vacant space of approximately 11 meters between
petitioners' houses; and (c) petitioners' property could provide the shortest route from the provincial road to the private respondents' property.
Consequently, the trial court granted the easement prayed for by the private respondents in a decision dated 30 June 1994, 4 whose decretal portion
reads as follows:
WHEREFORE, premises considered the Court orders that a right-of-way be constructed on the defendants' property covered by TCT No. 0-6244 of about
75 sq. meters, 25 sq. meters shall be taken from the lot of Florcerfida Sta. Maria and 50 sq. meters from the property of Cesar Sta. Maria to be established
along lines 1-2 of lot 6-c and along lines 3-4 of lot 6-b and to indemnify the owners thereof in the total amount of P3,750.00 (P1,250.00 goes to
Florcerfida Sta. Maria and P2,500.00 to Cesar Sta. Maria) and to reconstruct the fence to be destroyed in the manner it was at the time of the filing of
this action.
The petitioners seasonably appealed from the aforementioned decision to the Court of Appeals, which docketed the case as CA-G.R. CV No. 48473.
The Court of Appeals agreed with the trial court that the private respondents had sufficiently established the existence of t he four requisites for
compulsory easement of right of way on petitioners' property, to wit: (1) private respondents' property was, as revealed by the Ocular inspection Report,
surrounded by other immovables owned by different individuals and was without an adequate outlet to a public highway; (2) the isolation of private
respondents' property was not due to their own acts, as it was already surrounded by other immovables when they purchased it; (3) petitioners' property
would provide the shortest way from private respondents' property to the provincial road, and this way would cause the least prejudice because no
significant structure would be injured thereby; and (4) the private respondents were willing to pay the corresponding damages provided for by law if the
right of way would be granted.
Accordingly, in its decision 5 of 18 December 1996, the Court of Appeals affirmed the trial court's decision, but modified the property valuation by
increasing it from P50 to P2,000 per square meter.
The petitioners forthwith filed this petition for review on certiorari based on the following assignment of errors:
I.
WHETHER OR NOT A COMPULSORY EASEMENT OF RIGHT OF WAY CAN BE ESTABLISHED IN THE LIGHT OF THE DOCTRINE LAID DOWN BY
THE HON. SUPREME COURT IN COSTABELLA CORPORATION VS. COURT OF APPEALS, 193 SCRA 333, 341 WHICH HELD THAT [FOR] THE
FAILURE OF PRIVATE RESPONDENTS TO SHOW THAT THE ISOLATION OF THEIR PROPERTY WAS NOT DUE TO THEIR PERSONAL OR
THEIR PREDECESSORS-IN-INTEREST'S OWN ACTS, THEY ARE NOT ENTITLED TO A COMPULSORY EASEMENT OF RIGHT OF WAY.
II.
WHETHER OR NOT A COMPULSORY RIGHT OF WAY CAN BE GRANTED TO PRIVATE RESPONDENTS WHO HAVE TWO OTHER EXISTING
PASSAGE WAYS OTHER THAN THAT OF PETITIONERS AND AN ALTERNATIVE VACANT LOT FRONTING THE PROVINCIAL ROAD ALSO
ADJACENT TO PRIVATE RESPONDENTS' PROPERTY, WHICH CAN BE USED IN GOING TO AND FROM PRIVATE RESPONDENTS' PROPERTY.
III.
RESPONDENT HON. COURT OF APPEALS GRAVELY ERRED IN MAKING A PORTION OF ITS STATEMENT OF FACTS FROM ALLEGATIONS IN
THE COMPLAINT AND NOT FROM THE EVIDENCE ON RECORD.
IV.
RESPONDENT HON. COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT PRIVATE RESPONDENTS HAVE NO ADEQUATE OUTLET TO
A PUBLIC HIGHWAY WHICH INFERENCE DRAWN FROM FACTS WAS MANIFESTLY MISTAKEN. 6
The first, second, and fourth assigned errors involve questions of fact. Settled is the rule that the jurisdiction of this Court in cases brought before it from
the Court of Appeals via Rule 45 of the Rules of Court is limited to reviewing errors of law. Findings of fact of the latter are conclusive, except in the
following instances: (1) when the findings are grounded entirely on speculation, surmises, or conjectures; (2) when the inference made is manifestly
mistaken, absurd, or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the
findings of fact are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee; (7) when the findings are contrary to those of the trial court; (8) when the findings are conclusions
without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply
briefs are not disputed by the respondent; and (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the
evidence on record. 7
A perusal of the pleadings and the assailed decision of the Court of Appeals, as well as of the decision of the trial court, yields no ground for the
application of any of the foregoing exceptions. All told, the findings of fact of both courts satisfied the following require ments for an estate to be entitled
to a compulsory servitude of right of way under the Civil Code, to wit:
1. the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art. 649, par. 1);
2. there is payment of proper indemnity (Art. 649, par. 1);
3. the isolation is not due to the acts of the proprietor of the dominant estate (Art. 649, last par.); and
4. the right of way claimed is at the point least prejudicial to the servient estate; and insofar as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest (Art. 650). 8
As to such requisites, the Court of Appeals made the following disquisitions:
Anent the first requisite, there is no dispute that the plaintiffs-appellees' property is surrounded by other immovables owned by different individuals.
The ocular inspection report submitted to the lower court reveals that:
The property of the plaintiffs, spouses Arsenio and Roslynn Fajardo, is completely surrounded with adobe fence without any point of egress and ingress
to the national road. Said plaintiffs' property containing an area of 1,043 square meters and covered by OCT No. O-6244 of the Registry of Deeds of
Bulacan was situated directly behind defendants' property which abuts the national road. Defendants, spouses Cesar and Racque l Sta. Maria, are the
absolute owners of the parcel of land with an area of 537 square meters and embraced under TCT No. T-37.762(M) situated on the left side abutting the
national road with their house thereon made of wood and hollow blocks, while defendant Florcerfida Sta. Maria is the absolute owner of a parcel of land
with a similar area of 537 square meters and covered by TCT No. T-37.762(M) situated on the right side and likewise abutting the national road with an
impressive house thereon of modern vintage made of strong materials. As depicted in the rough sketch hereto attached, plainti ffs have absolutely no
means of ingress and egress to their property as the same is completely isolated by properties owned by other persons. On the left side is the property of
Florentino Cruz, on the right side is the property reportedly owned by the Jacintos; and on the front portion are properties owned by defendants. . . . .
(Ocular Inspection Report, p. 135, Orig. Rec.)
Plaintiffs-appellees' property is likewise without adequate outlet to a public highway. The existing passage way for people ("daang tao" ) at the back of
plaintiffs-appellees property leading to the provincial road (TSN, May 17, 1993, p. 12) cannot be considered an adequate outlet for purposes of
establishing an easement. Article 651 of the 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." Thus in the case of Larracas vs. Del Rio (37 Official Gazette 287), this Court
had occasion to rule that "it is not necessary for a person, like his neighbors, to content himself with a footpath and deny himself the use of an
automobile. So in an age when motor cars are a vital necessity, the dominant proprietor has a right to demand a driveway for his automobile, and not a
mere lane or pathway" (Cited in Tolentino, ibid., p. 391).
The second requisite for the establishment of an easement of right way, i.e., payment of indemnity, is likewise present in this case. Plaintiff-appellee
spouse Roslynn Fajardo testified on direct examination that they are willing to pay the corresponding damages provided for by law if granted the right of
way (TSN, November 5, 1992, p. 11).
The third requisite is that the isolation of plaintiffs-appellees' property should not have been due to their own acts. In the case under consideration, the
isolation of their lot is not due to plaintiffs' acts. The property they purchased was already surrounded by other immovables leaving them no adequate
ingress or egress to a public highway.
Going now to the fourth requisite of "least prejudice" and "shortest distance," We agree with the lower court that this twin elements have been complied
with in establishing the easement of right of way on defendants-appellants' properties.
It has been commented upon that where there are several tenements surrounding the dominant estate, and the easement may be established on any of
them, the one where the way is shortest and will cause the least damage should be chosen. But if these two circumstances do not concur in a single
tenement, the way which will cause the least damage should be used, even if it will not be the shortest. And if the conditions of the various tenements are
the same, all the adjoining owners should be cited and experts utilized to determine where the easement shall be established (Tolentino, ibid., pp. 108-
109, citing Casals Colldecarrera).
In the case at bar, the ocular inspection disclosed that there are three options open to the plaintiffs-appellees as a route to reach the national road, to wit:
(1) To traverse directly through defendants' property which is the shortest route of approximately 20 to 25 meters away from the national road;
(2) To purchase a right of way from the adjoining property of Florentino Cruz on the left side of their property; and
(3) To negotiate with Jacinto family on the right side of their property.
In all instances, no significant structures would be adversely affected. There is sufficient vacant space between defendants' houses of approximately 11
meters. The distance of defendant Florcerfida's house with the adjoining adobe wall separating that of the property of defendants Cesar and Racquel Sta.
Maria is about 4 meters, while the space between the adobe wall and that of the latter's house is about 7 meters or a total of 11 meters vacant space for
purposes of a right of way. On the other hand, plaintiffs may negotiate with a right of way with Florentino Cruz on the left side of their property although
the same is quite circuitous. Lastly, the option through the property of the Jacinto on the right side is very circuitous and longer. The route involves a
total of about 50 yards as it has to go straight to the right of about 35 yards and turn left of about another 15 yards before reaching the common right of
way.
(Ocular Inspection report, pp. 135-136, ibid.)
Among the three (3) possible servient estates, it is clear that defendants-appellants' property would afford the shortest distance from plaintiffs-appellees'
property to the provincial road. Moreover, it is the least prejudicial since as found by the lower court, "(i)t appears that there would be no significant
structures to be injured in the defendants' property and the right-of-way to be constructed thereon would be the shortest of all the alternative routes
pointed to by the defendants" (p. 4, RTC, Decision; p. 223, ibid.).
Petitioners' reliance on Costabella Corporation v. Court of Appeals 9 to support their first assigned error is misplaced. In said case we reversed the
decision of the Court of Appeals granting a compulsory easement of a right of way to the private respondents therein because of the absence of any
showing that the "private respondents had established the existence of the four requisites mandated by law." As to the third requisite, we explicitly
pointed out; thus: "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." In the instant case, the Court of Appeals have found the existence of the requisites. The petitioners, however, insist
that private respondents' predecessors-in-interest have, through their own acts of constructing concrete fences at the back and on the right side of the
property, isolated their property from the public highway. The contention does not impress because even without the fences private respondents'
property remains landlocked by neighboring estates belonging to different owners.
Under the second and fourth assigned errors, the petitioners try to convince us that there are two other existing passage ways over the property of Cruz
and over that of Jacinto, as well as a "daang tao," for private respondents' use. Our examination of the records yields otherwise. Said lots of Cruz and
Jacinto do not have existing passage ways for the private respondents to use. Moreover, the Ocular Inspection Report 10 reveals that the suggested
alternative ways through Cruz's or Jacinto's properties are longer and "circuitous" than that through petitioners' property. This is also clear from the
Sketch Plan 11 submitted by the private respondents wherein it is readily seen that the lots of Cruz and Jacinto are only adjacent to that of private
respondents unlike that of petitioners which is directly in front of private respondents' property in relation to the public highway.
Under Article 650 of the Civil Code, 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. Where there are several tenements
surrounding the dominant estate, and the easement may be established on any of them, the one where the way is shortest and will cause the least damage
should be chosen. 12 The conditions of "least damage" and "shortest distance" are both established in one tenement petitioners' property.
As to the "daang tao" at the back of private respondents' property, it must be stressed that under Article 651 the width of the easement of right of way
shall be that which is sufficient for the needs of the dominant estate, and may accordingly be changed from time to time. Therefore, the needs of the
dominant estate determine the width of the easement. 13 The needs of private respondents' property could hardly be served by this "daang tao" located at
the back and which is bordered by a fishpond. 14
The third assigned error is without basis and is nothing but a misreading of the challenged decision. The Court of Appeals did not declare as established
facts the allegations of the complaint referred to by the petitioner. It merely made a brief summary of what were alleged in the complaint as part of its
narration of the antecedents of the case on appeal.
WHEREFORE, the instant petition for review is DENIED and the challenged decision of the Court of Appeals is AFFIRMED in toto.
Costs against petitioners.
SO ORDERED.
Bellosillo, Vitug and Kapunan, JJ., concur.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-3422 June 13, 1952
HIDALGO ENTERPRISES, INC., petitioner,
vs.
GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALS, respondents.
Quisumbing, Sycip, Quisumbing and Salazar for petitioner.
Antonio M. Moncado for respondents.
BENGZON, J.:
This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises, Inc. to pay Guillermo Balandan and his wife,
damages in the sum of P2,000 for the death of their son Mario.
It appears that the petitioner Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory in the City of San Pablo, Laguna, in whose premises were
installed two tanks full of water, nine feet deep, for cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks
themselves were not provided with any kind of fence or top covers. The edges of the tanks were barely a foot high from the surface of the ground.
Through the wide gate entrance, which is continually open, motor vehicles hauling ice and persons buying said commodity passed, and any one could
easily enter the said factory, as he pleased. There was no guard assigned on the gate. At about noon of April 16, 1948, plaintiff's son, Mario Balandan, a
boy barely 8 years old, while playing with and in company of other boys of his age entered the factory premises through the gate, to take a bath in one of
said tanks; and while thus bathing, Mario sank to the bottom of the tank, only to be fished out later, already a cadaver, hav ing been died of "asphyxia
secondary to drowning."
The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner maintained an attractive nuisance (the tanks), and
neglected to adopt the necessary precautions to avoid accidents to persons entering its premises. It applied the doctrine of attractive nuisance, of
American origin, recognized in this Jurisdiction in Taylor vs. Manila Electric 16 Phil., 8.
The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous instrumentalities or appliances of a character likely to
attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting the reto, is liable to a child of
tender years who is injured thereby, even if the child is technically a trespasser in the premises. (See 65 C.J.S., p. 455.)
The principle reason for the doctrine is that the condition or appliance in question although its danger is apparent to those of age, is so enticing or
alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation to such children (65
C.J.S., p. 458).
Now, is a swimming pool or water tank an instrumentality or appliance likely to attract the little children in play? In other words is the body of water an
attractive nuisance?
The great majority of American decisions say no.
The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or
artificial feature other than the mere water and its location.
There are numerous cases in which the attractive nuisance doctrine has not been held not to be applicable to ponds or reservoirs, pools of water, streams,
canals, dams, ditches, culverts, drains, cesspools or sewer pools, . . . (65 C.J.S., p. 476 et seg. citing decisions of California, Georgia, Idaho, Illinois,
Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin.)
In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris Secundum was published in 1950, whereas its decision was
promulgated on September 30, 1949.
The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly e xplained by the Indiana Appellate
Court as follows:
Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger
children are early instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool on
his own property, merely duplicating the work of nature without adding any new danger, . . . (he) is not liable because of having created an "attractive
nuisance." Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind. App., 170.
Therefore, as petitioner's tanks are not classified as attractive nuisance, the question whether the petitioner had taken reasonable precautions becomes
immaterial. And the other issue submitted by petitioner that the parents of the boy were guilty of contributory negligence precluding recovery, because
they left for Manila on that unlucky day leaving their son under the care of no responsible individual needs no further discussion.
The appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No costs.
Feria, Padilla, Tuason, Montemayor, and Bautista Angelo, JJ., concur.


Separate Opinions
PABLO, J., disidente:
La recurrente tiene dos estanques de agua, de nueve pies de profundidad, como anexos indispensables a su fabrica de hielo; estan constuidos dentro de
un solar que esta cercado pero con una puerta de entrada siempre abierta en donde pasan libremente los coches que distribuyen hielo y las personas que
lo compran de la fabrica; cualquiera puede entrar sin distincion alguna, no hay ningun guardia en la puerta que impida la ent rada de cualquiera persona.
A dichos dos entanques tiene libre acceso el publico.
Es evidente que la recurrente debio haber cercado dichos estanques como medida ordinaria de precaucion para que los ninos de corta edad no pueden
entrar, tanto mas cuanto que los bordes de esos estanques solo tienen un pie de altura la superficie del terreno. El cerco puesto en el perimento del solar,
con puerta continuamente abierta, no es suficiente medida para impedir que los ninos puedan meterse en los entanques. Ese cerco con su puerta abierta
es como un velo transparente con que se cubre una mujer semidesnuda en un teatro, pica la curiosidad y atrae la atencion del publico.
Los nios son curiosos por naturaleza y los de ocho aos no tienen perfecto conocimiento de las cosas. Alucinados por la natural atraccion de las aguas,
se meteran en ellas con peligro de sus vidas, a menos que exista algo que les impida.
Voto con la confirmacion de la decision apelada.
AC Enterprises, Inc vs. Frabelle CorporationGR. No. 166744Facts:
Petitioner

owns

the Feliza Building which issitiated at the rear of the Frabelle Condominium Iwhich is owned by respondent. Feliza has 36 exhaustof blowers from air-
conditioning units on its buildingwhich produce a continuous, intense and unbearablenoise and hot air blasts directed towards the rear of Frabelle
Condiminium. Respondent wrote requests topetitioner to abate the nuisance but which wasignored by the latter. Frabelle went f iled a complaintbefore
the Pollution Adjudication Board. Pending thedecision on the complaint, respondent requestedoffice of the Makati Mayor to cancel petitionersbusiness
permit. The complaint was directed to theNCR Environmental management Bureau and it ruledthat there the exhaust on the blowers were not thesole
factor in the noise pollution. Unsatisfied with theresolution, respondent filed a complaint for theabatement of nuisance with a prayer for the issuanceof
preliminary and permanent injunction before thetrial court of Malabon City. It ruled that there is asufficient cause of action for respondent to file
acomplaint and it ruled in the latters favor. Court of Appeals ruled that respondent has the right to abatethe nuisance to protect his property and
proprietaryrights against business losses.
Issue: Whether or not respondent has a cause of action and RTC has the jurisdiction over the case.Held:
The Court held that a simple suit for abatementof nuisance is within the exclusive jurisdiction of theRTC where it is the one which has the right to
declarewhether a thing is a nuisance as under Article 694 of the Civil Code. More so, having suffered from thenuisance, respondent has a cause of action
where itmay institute an action to abate it as under Article 705and 706. There is cause of action if there is a right infavor one party and an obligation not
to violate thatright for the other and there is a breach of thatobligation. LGUs are not vested with the power todeclare a thing a nuisance.
PETITION DENIED.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-27451 February 28, 1969
PAZ ONGSIACO and the HEIRS OF THE LATE AUGUSTO ONGSIACO, namely, AUGUSTO ONGSIACO, JR. Y DIRIC, FERNANDO ONGSIACO Y
DIRIC, JORGE ONGSIACO Y DIRIC, RODOLFO ONGSIACO Y GARCIA, PACITA ONGSIACO Y GARCIA, ANGELA ONGSIACO Y GARCIA, AUGUSTO
ONGSIACO Y GARCIA, LILIA ONGSIACO Y GARCIA, the minor LYDIA ONGSIACO Y GARCIA represented by her judicial guardian ALICIA GARCIA,
MELENCIO ONGSIACO Y DIZON, NORMA ONGSIACO Y DIZON, ALFREDO ONGSIACO Y DIZON, ESTRELLA ONGSIACO Y SANTOS, SOCORRO
ONGSIACO Y SANTOS, ANGEL ONGSIACO Y SANTOS and the minors IMELDA ONGSIACO Y SANTOS, JOSEFINA ONGSIACO Y SANTOS NENITA
ONGSIACO Y SANTOS, and JUANITO ONGSIACO Y SANTOS, represented by their judicial guardian SALUD SANTOS, petitioners,
vs.
ROMAN D. DALLO, MATIAS TIMOTEO, MARCELO RONQUILLO, CESARIO SERVANDO, DIONISIO ENRICO, ILADIO JULIAN, BRUNO S. TEJO,
VICTORIANO DUPALE, GUALBERTO CORPUZ, MARCELO DELO, MARIANO MENDOZA, AGUEDA MENDOZA, VENANCIO DALLO, PEDRO D.
DELIZO, ESTEBAN RIVERA, TRINIDAD ONGSIACO, LORENZO DOMINGO, JUAN AREOLA, NORBERTO NONO, CECILIO REPANGCOL,
ESPERANZA ZAMORA, APOLONIO DELIZO, TORIBIO MORALES, CESARIO TEJERO, PAULO RONQUILLO, LIBERATA TEJERO, FAUSTINO
DANO, LEODEGARIA SIMOS, CLAUDIO RONQUILLO, MANUEL CARRASCO, PURIFICACION DALLO, SINFOROSO SABATIN, VALENTIN TOMAS,
JUAN PANGALILINGAN, MODESTO POSADAS, CLAUDIA DOMINGO, GREGORIO PANGALILINGAN, HIPOLITO RAFUET, INOCENCIO
BERNARDINO, JUAN T. SUMALBAG, AMANDO BAUTISTA, PROCESO ESTONILO, AGUSTINA DIVINA, ENCARNACION MACARANG, JOSE
BANES, HERMINIGILDO DAGDAG, FORTUNATO JACOBE, GREGORIO ADARNA, ADRIANO MANDAPAT, MELECIO TOMAS, MAXIMA
DOCTOLERO, PERFECTO CABANTING, BENJAMIN DONA, Propietarios Interdictos Inc., THE HONORABLE JUDGE SALVADOR REYES of the Court
of First Instance of Nueva Ecija (Cabanatuan Branch) and THE HONORABLE JUDGE PLACIDO RAMOS of the Court of First Instance of Nueva Ecija
Guimba Branch), respondents.
Gallego and Natividad for petitioners.
Dallo and Dallo for respondents.
MAKALINTAL, J.:
The plaintiffs below (respondents here) filed a complaint 1 against herein petitioners alleging ownership of a parcel of land situated in the
municipality of Cuyapo, Nueva Ecija, with an area of 255 hectares, more or less, and praying that the defendants be ordered t o surrender possession to
the plaintiffs and to pay damages, attorney's fees and costs. The said parcel is described in the complaint as follows:
A PARCEL OF LAND ADJOINED IN MASSE
INDICATED "LOT X"
(Between the red and green lines) on the plan S.W.O. 24137, portion of our actual LANDHOLDINGS. Bounded on the North, North-west, West,
South-west and South by the property of the defendants, registered in 1910 in their registration case 5550 covered in O.C.T. 139 and on the East are
numerous individual lots owned by the plaintiffs; containing an area of TWO HUNDRED FIFTY FIVE (255) hectares, more or less, situated in the
aforesaid barrios of the municipality of Cuyapo, Province of Nueva Ecija. This property is assessed for the amount of P76,500.00 at P300.00 per hectare,
as per schedule of values in the municipality of Cuyapo, Province of Nueva Ecija.
The defendants moved to dismiss on the following grounds:
1. That the cause of action if any is already barred by the statute of limitations.
2. The Court has no jurisdiction over the nature of the action as in effect it seeks to annul or revoke decisions and solutions of the Supreme Court
considering that a court of first instance is not authorized to do this even assuming that the decisions or resolutions of the Supreme Court are wrong.
3. The complaint stated no cause of action.
4. The cause of action is already barred by two prior judgments and several resolutions.
Respondent Court denied the motion to dismiss in its order of July 18, 1966, which states:
One of the grounds of the Motion to Dismiss filed by the defendant Paz Ongsiaco thru her counsel on June 8, 1966 is that the cause of action is
already barred by two prior judgments and several resolutions. However, the complaint on its face appears to have a different cause of action than the
two prior cases and it is up to the defendants to prove their defense of res judicata. Furthermore, the allegation of the plaintiffs that the defendants are
encroaching upon the boundaries of their property is also a matter of evidence.
It may be noted that the foregoing order of denial ruled merely on two of the grounds alleged in the motion to dismiss, namel y, bar by prior
judgments and lack of cause of action. It did not resolve the plea of prescription. This omission is now relied upon, among other reasons, in the instant
petition for certiorari to set aside the order aforequoted, as well as a subsequent order denying petitioners' motion for reconsideration.
The voluminous pleadings, motions and memoranda filed here deal largely with the plea of res judicata, particularly with the question of identity
between the land claimed by respondents as an integral portion of the lands involved in the previous litigations between the parties and/or their
predecessors-in-interest, namely:Government of the Philippine Islands vs. Leoncio Abad, et al., (47 Phil. 573); Feliciano Abad, et al. vs. Government of
the Philippines, (103 Phil. 247); Luis Antonio, et al. vs. Jose Mariano de Santos, et al., Cad. Case No. 19 of the Court of First Instance of Nueva Ecija and
the resolutions of the Supreme Court of October 19, 1965 and December 3, 1965, dismissing the appeal in the last mentioned case.
For the resolution of the present petition it is not necessary to go into identity of the land as a point material to the question of res judicata. The
issue of prescription is decisive, and the failure of respondent Court to resolve it constitutes a grave abuse of discretion correctible by certiorari.
Paragraph 7 of the complaint below contains the following allegation:
That the defendants are illegally in possession, occupation and cultivation of the land indicated "LOT X" on Plan SWO 2437, since 1924 after the
Cadastral Court's decision in 1924 and benefited on the crops raised thereon, to the prejudice of the plaintiffs. Such possession and cultivation by the
defendants over the land in question are without just title, for it was not within the bounds of their registered property in 1910, covered by O. C. T. No.
139, issued by virtue of DECREE 4485-A in their Registration Case No. 5550.
Elaborating on the matter of possession, respondents state in their memorandum of September 18, 1967:
... Notwithstanding the fact that plaintiffs, predecessors-in-interests were the original occupants over the land (Lot "X") since time immemorial,
who cleared and introduced improvements thereon, such as the pilapils, dams, fruit trees, coconut plants and others on the land (Lot "X") and became
productivity and cultivable (sic). However, on or before 1924 during the cadastral survey of Cuyapo, Nueva Ecija, they (defendants-petitioners) moved
their monuments 450 meters, more or less, from their respective permanent places according to the technical description speci fied in the notice of
publication in the Official Gazette of their Registration case 5550 in 1910. Thereafter, their Overseers, Encargados or Catiwalas informed to the people,
(our predecessors-in-interests) that their boundary is up to the RED LINES, thus in 1924, our predecessors-in-interests left the premises (Lot "X") and
stayed up to the RED LINE appearing on plan SWO-24137. However, such possession of the defendants-petitioners over the land (lot "X") is possession
in bad faith, which it would not ripen into ownership.lawphi1.nt
It is thus admitted that since 1924 or for a period of forty-two years before the basic complaint was filed in 1966, petitioners had been in possession
of the land claimed by plaintiffs below, now respondents, and that such possession was adverse, or in concept of owner, altho ugh allegedly in bad faith.
Under the Code of Civil Procedure formerly in force, good or bad faith was immaterial for purposes of acquisitive prescription. Adverse possession in
either character ripened into ownership after the lapse of ten years. 2 In the same manner, an action to recover title to or possession of immovable
property prescribed in the same period. 3
There be no doubt that the former laws on prescription apply here, pursuant to Article 1116 of the Civil Code. 4 Even the thirty-year period fixed in
the new Civil Code for the acquisition of ownership by extraordinary prescription, 5 or for the extinction of the right of action (real) over
immovables, 6 had expired when the present action was filed.
WHEREFORE, the writ prayed for is granted. The orders complained of are set aside and the complaint filed by private respondents below is
ordered dismissed, with costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez, Castro, Capistrano, Teehankee and Barredo, JJ., concur.
Fernando, J., took no part.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-62050 November 25, 1983
JOSE "PEPITO" TIMONER, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE COURT OF APPEALS, IV DIVISION, respondents.
Marciano C. Dating, Jr. and Jose & Fuentebella for petitioner.
The Solicitor General for respondents.

ESCOLIN, J.:+.wph!1
Petition for review of the affirmance in toto by the Court of Appeals, now the Intermediate Appellate Court, of the judgment of conviction handed down
by the then Municipal Court of Daet, Camarines Norte, in Criminal Case No. 4281, entitled People of the Philippines vs. Jose Timoner, finding petitioner
guilty of the crime of grave coercion, as follows: t.hqw
WHEREFORE this Court finds the accused JOSE 'PEPITO' TIMONER guilty beyond reasonable doubt of the crime of Grave Coercion as penalized under
Art. 286 in the Revised Penal Code, and hereby sentences the said accused pursuant to the provision of Rule 64, Par. 3, to suffer SIX MONTHS OF
IMPRISONMENT OF ARRESTO MAYOR IN ITS MAXIMUM PERIOD, to pay a fine of P300.00 and to pay the offended party in the amount of
P5,000.00 as damages, without subsidiary liability in case of insolvency. The other accused SAMUEL MORENA and ERNESTO QUIBRAL are hereby
ordered ACQUITTED.
The salient facts are not disputed. At about 10:00 in the evening of December 13, 1971, petitioner, then Mayor of Daet, Camarines Norte, accompanied by
two uniformed policemen, Samuel Morena and Ernesto Quibral, and six laborers, arrived in front of the stalls along Maharlika highway, the main
thoroughfare of the same town. Upon orders of petitioner, these laborers proceeded to nail together rough lumber slabs to fence off the stalls which
protruded into the sidewalk of the Maharlika highway. Among the structures thus barricaded were the barbershop of Pascual Dayaon, the complaining
witness and the store belonging to one Lourdes Pia-Rebustillos. These establishments had been recommended for closure by the Municipal Health
Officer, Dra. Alegre, for non-compliance with certain health and sanitation requirements.
Thereafter, petitioner filed a complaint in the Court of First Instance of Camarines Norte against Lourdes Pia-Rebustillos and others for judicial
abatement of their stalls. The complaint, docketed as Civil Case No. 2257, alleged that these stalls constituted public nuisances as well as nuisances per
se. Dayaon was never able to reopen his barbershop business.
Subsequently, petitioner and the two policemen, Morena and Quibral, were charged with the offense of grave coercion before the Municipal Court of
Daet. As already noted, the said court exonerated the two policemen, but convicted petitioner of the crime charged as principal by inducement.
On appeal, the Court of Appeals affirmed in full the judgment of the trial court. Hence, the present recourse.
Petitioner contends that the sealing off of complainant Dayaon's barbershop was done in abatement of a public nuisance and, therefore, under lawful
authority.
We find merit in this contention. Unquestionably, the barbershop in question did constitute a public nuisance as defined under Article Nos. 694 and 695
of the Civil Code, to wit: t.hqw
ART. 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.
ART. 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although
the extent of the annoyance, danger or damage upon individuals may be unequal A private nuisance is one that is not included in the foregoing
definition.
The barbershop occupied a portion of the sidewalk of the poblacion's main thoroughfare and had been recommended for closure by the Municipal Health
Officer. In fact, the Court of First Instance of Camarines Norte, in its decision in Civil Case No. 2257, declared said barbershop as a nuisance per-se.
Thus: t.hqw
Under the facts of the case, as well as the law in point, there is no semblance of any legality or right that exists in favor of the defendants to build a stall
and conduct their business in a sidewalk, especially in a highway where it does not only constitute a menace to the health of the general public passing
through the street and also of the unsanitary condition that is bred therein as well as the unsightly and ugly structures in the said place. Moreover, even if
it is claimed and pretended that there was a license, permit or toleration of the defendants' makeshift store and living quarters for a number of years does
not lend legality to an act which is a nuisance per se. Such nuisance affects the community or neighborhood or any considerable number of persons and
the general public which posed a danger to the people in general passing and using that place, for in addition, this is an annoyance to the public by the
invasion of its rights the fact that it is in a public place and annoying to all who come within its sphere [Baltazar vs. Carolina Midland, Ry, Co., 54 S.C.
242, 32 SB 258, cited in 11 Tolentino's Civil Code of the Philippines, p. 375; Kapisanan Lingkod ng Bayan, Inc. vs. Lacson, CA-G.R. No. 27260R, March
25, 1964; 61 O.G. 2487].
xxx xxx xxx
... IN VIEW OF THE FOREGOING, the Court hereby declares that the structures subject of this complaint as well as those occupi ed by the impleaded
defendants are nuisances per se and therefore orders the defendants to demolish the stall and vacate the premises immediately ...
But even without this judicial pronouncement, petitioner could not have been faulted for having fenced off said barbershop. Paragraph 3, Article 699 of
the Civil Code authorizes the abatement of a public nuisance without judicial proceedings. t.hqw
ART. 699. The remedies against a public nuisance are:
[l] A prosecution under the Penal Code or any local ordinance; or
[2] A civil action; or
[3] Abatement, without judicial proceedings.
In the case at bar, petitioner, as mayor of the town, merely implemented the aforesaid recommendation of the Municipal Health Officer. Having then
acted in good faith in the performance of his duty, petitioner incurred no criminal liability.
Grave coercion is committed when "a person who, without authority of law, shall by means of violence, prevent another from doing something not
prohibited by law or compel to do something against his will, either it be right or wrong." 1 The three elements of grave coercion are: [1] that any person
be prevented by another from doing something not prohibited by law, or compelled to do something against his will, be it right or wrong; [2] that the
prevention or compulsion be effected by violence, either by material force or such display of it as would produce intimidation and control the will of the
offended party, and [3] that the person who restrained the will and liberty of another had no right to do so, or, in other words, that the restraint was not
made under authority of law or in the exercise of a lawful right. 2
The third element being absent in the case at bar, petitioner cannot be held guilty of grave coercion.
WHEREFORE, the decision of the Court of Appeals in CA G.R. No. 19534-CR, is hereby set aside and petitioner is acquitted of the crime charged.
Costs de oficio.
SO ORDERED.1wph1.t
Makasiar (Chairman), Aquino, Concepcion, Jr., Guerrero, Abad Santos and De Castro, JJ., concur.