Republic of the Philippines P hilippines SUPREME COURT Manila THIRD DIVISION
G.R. No. 106082 June 27, 1995 LORETO VDA. DE BALTAZAR and NESTOR BALTAZAR, Petitioners vs. COURT OF APPEALS and DANIEL PANGANIBAN, Respondents. espondents. virtual law library ,
ROMERO, J.: virtual law library
Petitioners assail the decision of the Court of Appeals which reversed the decision of the Regional Trial Court Branch 9 of Malolos and ordered petitioners to grant the right of way claimed by private respondent. res pondent.virtualawlibrary virtualawlibrary virtual law library ,
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The instant petition for review on certiorari presents two issues for resolution namely: (1) whether or not an easement eas ement of right of way can be granted to a person who has two other existing passageways adjacent to his property which he is using in going to and from his property; and (2) whether or not an easement of right of way can be established through the alleged continuous use thereof in light of the 1 doctrine laid down by this Court in the case of Ronquillo v. Roco which held that an easement of right of way is discontinuous in nature since the dominant estate cannot be continually crossing the servient estate but can do so o nly at intervals.virtualawlibrary intervals.virtualawlibrary virtual law library ,
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Daniel Panganiban is the owner of a parcel of residential land consisting of 117 square meters denominated as Lot no. 1027 located at Sta. Ines Bulacan. Immediately to the front of said land is Lot 1026 of Loreto Vda. de Baltazar and her son Nestor Baltazar. Immediately behind is the t he Sta. Ana River. On either side are Lots 1025 and 1028 owned by Ricardo Calimon and Jose Legaspi respectively. Braulio Street a provincial road runs along the frontage of Lots 1025 1026 and 1028.virtualawlibrary 1028. virtualawlibrary virtual law library ,
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Sometime in 1989 Daniel Panganiban filed a complaint against the Baltazars who are owners of Lot 1026 for the establishment of a permanent and perpetual easement of right of way for him to have access to the provincial road. In said complaint he prayed for the issuance of a writ of preliminary injunction. virtualawlibrary virtual law library ,
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In their answer petitioners opposed the prayer for the issuance of a writ of preliminary injunction arguing that there exists two other rights of way adjacent to private respondent's property. They likewise argue that private respondent had abandoned the alleged right of way. wa y. virtualawlibrary virtual law library ,
The court a quo after conducting an ocular inspection and hearings for the issuance of the writ prayed for dismissed the complaint based on the following findings: ,
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Immediately in front of the plaintiff's aforedescribed property is Residential Lot 1026 with an area of 119 square meters belonging to herein defendants. On this lot is constructed the residential house of the defendants immediately in front of which is the provincial road. Running along one side of this property is a 1.20-meter wide 10.40 meter long passageway which the plaintiff claims to have previously made use of as an ingress to and egress from his property in going to or coming from the provincial road until some three (3) years before he instituted the instant action when w hen the defendants somehow prevented him from using the same.virtualawlibrary same. virtualawlibrary virtual law library ,
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It is significant to note that aside from the passageway which the plaintiff seeks to be established as a permanent easement the property of the plaintiff is accessible to and from the provincial road via two (2) other passageways viz: viz: ,
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1) a passageway running immediately alongside the concrete fence of the properties of plaintiff p laintiff and the defendants over the properties of Loreto Bernardo and a nd Jose Legaspi. This passageway ends in a gate which serves as a point of entry into or exit from the property of the plaintiff; and virtual law library ,
2) a passageway similarly running alongside the opposite concrete fence of the properties of the t he plaintiff and the
defendants over the properties of Encarnacion Calimon and Ricardo Calimon. This passageway which ends in a gate leading into the plaintiff's property is the right of way presently availed of by the plaintiff. ,
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Daniel Panganiban appealed to the Court of Appeals claiming that the court a quo erred in dismissing the complaint for reasons of pragmatic considerations and in flagrant and clear violation of Articles 649 and 650 of the new Civil Code of the Philippines.virtualawlibrary virtual law library 2
The Court of Appeals in its assailed decision reversed the order of dismissal of the court a quo and granted respondent's right of way. The dispositive portion of said decision states: ,
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In view of the foregoing the order appealed from is hereby REVERSED and SET ASIDE. Defendants-appellees are hereby ordered to grant the right of way of plaintiff-appellant designated as Lot 1026-B after payment of the proper indemnity to be determined after hearing in the Court below. virtualawlibrary virtual law library ,
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WHEREFORE the case is hereby ordered remanded to the court of origin for further proceedings.virtualawlibrary virtual law library ,
SO ORDERED. The Court of Appeals found the following based on the evidence on record: 1) Plaintiff-appellant's Lot 1027 (Exh. D) is bounded on the south by Lot 1026-A owned by defendants-appellees; on the north by Sta. Ana River; on the east by Lot 1025 (Legaspi's property); on the west by Lot 1028 (Calimon's property) [Exh. 3-T.D. No. 10998]; virtual law library ,
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2) The only accessible road from Lot 1027 is Braulio Street. This road runs across the frontage of Lot 1025 Lot 1026-A and Lot 1028; virtual law library ,
3) The shortest direct and convenient way to gain access as an egress and ingress to said Braulio Street from the appellant's dominant Lot 1027 is to pass through the appellees' servient estate Lot 1026-A (Exhs. 4-G A B B-1 and C); virtual law library ,
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4) That Lot 1026-B (Exh. 4-l) which is a strip of land and a portion of appellees' Lot 1026-A with steel gates (Exhs. I-1 and F-2) has been existing recognized acknowledged tolerated and used by the appellant as a right of way for thirty (30) years during the lifetime of appellees' grandfather Fidel and his father Onisimo Baltazar; virtual law library ,
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5) That it was closed and obstructed by the appellees when it closed the gate and placed plants across the gate of Lot 1026-B when appellees constructed their present residence; virtual law library ,
6) That appellant was compelled to request for a temporary pathway on the eastern side Lot 1025 and when it was closed on the western side Lot 1028 of his Lot 1027. ,
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It is worth noting that there is a discrepancy in the findings between the court a quo and the Court of Appeals regarding the existence of two passageways from respondent Panganiban's property to Braulio Street. The court a quo ruled that while the passageway through petitioner Baltazar's property is the least prejudicial to the servient estate and the shortest distance between respondent Panganiban's property and the provincial road the claimed easement cannot be granted due to 3 the strained relations between the parties. The court a quo added that if the other two passageways will no longer be available to respondent then the claimed 4 easement of right of way over petitioner's property would be granted. It appears that the two passageways are simultaneously existing as alternative pathways for respondent Panganiban.virtualawlibrary virtual law library ,
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The Court of Appeals however found that the two passageways mentioned were mere temporary pathways which respondent Panganiban requested successively from his two neighbors Calimon and Legaspi when petitioner Baltazar closed the passageway through his property. When the path on the eastern s ide (Lot 1025) was closed to the respondent he was granted the use of the other on the western 5 side (Lot 1028). ,
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The finding of the Court of Appeals that the existence of the two passageways was not simultaneous and was granted by respondent's neighbors Calimon and Legaspi only upon respondent's request when petitioner Baltazar c losed the claimed 6 passageway is supported by the evidence on record. ,
In light of the above findings of the Court of Appeals the underlying issue begging resolution is whether or not respondent Panganiban is entitled to claim an ease ment of right of way over the Baltazars' property.virtualawlibrary virtual law library ,
In Loc sin v. Clima co
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this Court said:
By express provision of Articles 649 and 650 of the New Civil Code the owner of an estate may claim a compulsory right of way only after he has established the existence of four (4) requisites namely (1) the estate is surrounded by other immovables and is without adequate outlet to a public highway; (2) after payment of the proper indemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of way claimed is at a point least prejudicial to the servient estate and in so far as consistent with this rule where the distance from the dominant estate to a public highway may be the shortest. ,
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For respondent Panganiban to claim a compulsory easement of right of way he must therefore first establish the existence of the four requisites stated above.virtualawlibrary virtual law library ,
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It is not disputed that the first requisite has been established by the court a quo in 8 its Order dated May 22 1990. Respondent Panganiban's property is indeed surrounded by immovables on three sides and a river on the fourth.virtualawlibrary virtual law library ,
As for the second requisite
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F rancisco
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v. Intermediate Appellate Court states:
There would indeed be some point in looking askance at a reading of the law which would impute to it a strict requirement to pay "proper indemnity" in advance of a suit the purpose of which in addition to creating an easement is precisely to fix the amount of the indemnity to be paid therefor. ,
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We agree with the Court of Appeals when it ordered the remand of this case to the 10 lower court for the purpose of fixing the proper indemnity. With respect to the third requisite respondent Panganiban was likewise able to establish that the isolation of his property was not due to his own act for he merely 11 bought Lot 1027 which was formerly part of the Baltazars' Lot 1026-A from petitioner Nestor Baltazar's predecessors-in-interest. The Court of Appeals found 12 that Lot 1026-B which the respondents have been using as a right of way has ,
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been "existing recognized acknowledged tolerated and used by the appellant as a right of way for thirty (30) years during the lifetime of petitioner's grandfather 13 Fidel and his father Onisimo Baltazar." It was also established that the right of 14 way was "closed and obstructed by the petitioners when they closed the gate and placed plants across the gate of Lot 1026-B when petitioners constructed their 15 present residence." ,
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As regards the fourth requirement both parties agreed that the passage claimed by respondent as his right of way compared to the other passageways is the shortest 16 distance from respondent's lot to Braulio Street. ,
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Petitioners could not have been inconvenienced by the passageway for as borne out by the records the same is separate and distinct from the gate used by them to enter their lot and residence. Such being the case we conclude that respondent is entitled to claim a compulsory easement of right of way over petitioners' Lot 1026B.virtualawlibrary virtual law library ,
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WHEREFORE finding no reversible error in the decision of the Court of Appeals the same is hereby AFFIRMED. virtualawlibrary virtual law library ,
SO ORDERED. F eliciano,
Melo, Vitug and F rancisco, JJ., concur.
Endnotes:
1 103 Phil. 84. virtual law library 2 Penned by Associate Justice Consuelo Ynares-Santiago and concurred in by Associate Justices Ricardo Pronove Jr. and Nicolas P. Lapeña Jr.; Rollo pp. 32-37. virtual law library ,
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3 Rollo pp. 62-63. virtual law library ,
4 Rollo p. 63. virtual law library ,
5 Rollo p. 34. virtual law library ,
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6 Rollo pp. 11-15 74-76 158. virtual law library ,
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7 26 SCRA 836 citing Angela Estate Inc. et al. v. Court of First Instance of Negros Oriental et al. 24 SCRA 500; Bacolod-Murcia Milling Co. Inc. and Hon. Jose Fernandez v. Capitol Subd. and Court of Appeals 17 SCRA 731. virtual law library ,
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8 Rollo pp. 4-5. virtual law library ,
9 177 SCRA 536. virtual law library 10 Rollo p. 36. virtual law library ,
11 Rollo pp. 155-156. virtual law library ,
12 Exh. 4-10. virtual law library 13 Rollo p. 34. virtual law library ,
14 Exhs. F-1 and F-2. virtual law library 15 Rollo p. 34. virtual law library ,
16 Rollo p. 162 Exhs. 4-G A B B-1 and C ,
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Republic of the Philippines SUPREME COURT
Manila SECOND DIVISION G.R. No. L-23213 October 28, 1977 WESTERN MINDANAO LUMBER CO., INC., plaintiff-appellant,
vs. NATIVIDAD M. MEDALLE and ANTONIO MEDALLE, defendants-
appellees.
Jalandoni & Jamir for appelant. Fernandez Law Office for appellee
CONCEPCION JR., J.:têñ.£îhqwâ£
Appeal from the order of the Court of First Of the complaint upon the ground that the claim on which it is founded is unenforceable under the Statute of Fraud and Special law. The complaint, filed on December 16, 1960, alleges that:
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2. ² The Plaintiff is engaged in logging operations in Curuan Zamboanga City and in connection with the said logging operation it obtained on September 8, 1955 a right-of-way through the said Lot 2136, of the Cadastral Survey of Zamboanga from Mr. Luciano Hernandez, then the registered owner, a copy of the agreement being enclosed as Annex A'; 3. ² The former owners of the logging concession operated by the Plaintiff constructed and maintained the said road through Lot 2136, but the Plaintiff improved the said road, paying to the registered owner for all the improvements damaged by the improvement of the road; 4. ² Long before the execution of the right-of-way agreement on September 8, 1955, since then and up to the present time the said road has been maintained and used not only by the predecessor of the Plaintiff and the Plaintiff, but also by the public: 5. ² The said Lot 2136 was purchased by the defendants in 1958 and the said road then existed and was in public use and the defendants did not oppose but instead allowed the continued use and maintenance of the road by the Plaintiff and the public;
6. ² The said road is indispensable to the business operations of the Plaintiff, because it is the only access from their concession to the highway; 7. ² That defendants have now sent to the Plaintiff a notice (Annex'B') of their intention to close the road; and 8. ² The Plaintiff has the right to the continued use of said road, the closing of which will cause injustice and irreparable damages to the Plaintiff and the Plaintiff is willing to post a bond for the issuance of a writ of preliminary injunction to stop the defendants from closing the road. xxx xxx xxx Wherefore, the plaintiff prayed that a writ of preliminary injunction be issued restraining the defendants from closing the said road, and after hearing, make the injunction permanent. It also prayed that the defendants be directed to recognize and respect the said road right-of-way agreement. 1 Copies of the road right-of-way agreement and the letter of the defendants advising the plaintiff of the closure of the road were attached thereto. 2Upon the filing of a bond in the amount of P1,000.00, a writ of preliminary injunction was issued, restraining the defendants from 3 closing the road. Instead of a responsive pleading, the defendants filed a motion to dismiss the complaint on January 4, 1961, upon the ground that the claim on which the action or suit is founded is unenforceable under the provisions of the Statute of Frauds and special law, in that the first page of the said road right-of-way agreement was not signed by both parties and their instrumental witnesses; page two thereof is not dated, and the signature of the plaintiffs corporate agent does not appear; and that said agreement is not acknowledged before a person authorized to administer oaths. 4 The plaintiff opposed the motion, stating that the agreement between plaintiff and Luciano Hernandez is not one of those agreements specified in the Statute of Frauds 5 Nevertheless, the trial court granted the motion to 6 dismiss on January 17, 1961 and the cases. The plaintiff filed a motion for reconsideration of the said order, insisting that the road right-of-way agreement is not covered by the Statute of
Frauds. 7 Then, on March 4, 1961, the plaintiff filed an Amended Complaint, accompanied by a motion for its admission. The plaintiff therein prayed, among others, that the Defendants be ordered to keep the road open and to respect the right-of-way agreement, and "should it be ascertained that under the law the plainttiff is bound to pay compensation for the right-of- way to the defendants, it is prayed that the reasonable amount of such compensation be fixed. 8 After hearing the parties, the trial court issued an order on September 6, 9 1961, denying the motion for reconsideration. Whereupon, the plaintiff perfected an appeal to the Court of 10 Appeals. The Appellate Court, finding that only questions of law are raised, elevated the appeal to this Court. 11 The plaintiff-appellant made the following assignment of errors in its Brief: ñé+.£ªwph!1 1. The trial court erred in dismissing the complaint on the ground that the claim on which the action or suit is founded is unenforceable under the provisions of the Statute of Frauds and special law; and 2. The trial court erred in denying plaintiffs motion for reconsideration. The appeal is meritorious. The Statute of Frauds refers to specific kinds of 12 transactions and cannot apply to any that is not enumerated therein. The transactions or agrrements covered by said statute are the following: ñé+.£ªwph!1 (a) An agreement that by its terms is not to be performed within a year from the making thereof; (b) A special promise to answer for the debt, default, or miscarriage of another; (c) An agreement made in consideration of marriage, other than a mutual promise to marry;
(d) An agreement for the sale of goods, chattels or things in action, at a price not less than five hundred pesos unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time somepart of the purchase money; but when a sale is made by auction and entry is made by the auctioneer in his sales book, at the time of the sale, of the amount and kind of property sold, terms of sale price, names of purchasers and person on whose account the sale is made, it is sufficient memorandum; (e) An agreement for the leasing for a longer period than one year, or for the sale of real property or of an interest therein; (f) A representation as to the credit of a third person.
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Obviously, an agreement creating an easement of right-of-way is not one of those contracts coverede by the statue of rauds since it is not a sale of property or of an interest therein. The trial court therefore, erred in dismissing the case upon the defendants' claim that the road fight-of-way agreement in question is unenforceable under the statute of frauds. Besides, the complaint, as amended, may be viewed not only as a claim for the recognition of the existence of an easement of right-of-way on defendants' estate, but also a demand for the establishment of an easement of right-of-way, if none exist, pursuant to Art. 649 of the Civil Code, in view of the plaintiffs offer to pay reasonable compensation for the use of the land. WHEREFORE, the judgment from is hereby reversed and the order of January 17, 1961 and September 6, 1961 set aside.Costs against the defendants-appellees. SO ORDERED. Fernando (Chairman), Barredo, Aquino and Santos, JJ, concur Antonio, J., in the result.
Footnotesñé+.£ªwph!1
1 R.A., p. 3. 2 I d., pp. 5, 10. 3 I d., pp. 11, 12. 4 I d., pp. 13-18. 5 I d., p. 19. 6 I d., p. 21. 7 I d., p. 22. 8 I d., pp. 36, 37: 9 I d., p. 48. 10 I d., p. 50. 11 Rollo, p. 36. 12 Faustino Cruz vs. J.M. Tuason & Co., et al., G.R. No. L,23749, April 29, 1977. 13 Art. 1403, par. 2, Civil Code.
Republic of the Philippines SUPREME COURT Manila SECOND DIVISION
G.R. No. 80511 January 25, 1991 COSTABELLA CORPORATION, Petitioner vs. COURT OF APPEALS, KATIPUNAN LUMBER CO., INC., AURORA BUSTOS LOPEZ, MANUEL ,
S. SATORRE, JR., JOSEFA C. REVILLES, FELIX TIUKINHOY, JR., PERFECTA L. CHUANGCO, and CESAR T. ESPINA, Respondents. SARMIENTO, J.:
The principal issue raised in this petition for review on certiorari of the 1 2 decision dated May 30 1986 of the Court of Appeals which modified the 3 decision rendered by the Regional Trial Court of Lapu-Lapu City in Cebu is whether or not the private respondents had acquired an easement of right of way in the form of a passageway on the petitioner's property.virtualawlibrary virtual law library ,
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It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122 and 5124 of the Opon Cadastre situated at Sitio Buyong Maribago Lapu-Lapu City on which it had constructed a resort and hotel. The private respondents on the other hand are the owners of adjoining properties more particularly known as Lots Nos. 5123-A and 5123-C of the Opon Cadastre.virtualawlibrary virtual law library ,
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Before the petitioner began the construction of its beach hotel the private respondents in going to and from their respective properties and the provincial road passed through a passageway which traversed the petitioner's property. In 1981 the petitioner closed the aforementioned passageway when it began the construction of its hotel but nonetheless opened another route across its property through which the private respondents as in the past were allowed to pass. (Later or sometime in August 1982 when it undertook the construction of the second phase of its beach hotel the petitioner fenced its property thus closing even the alternative passageway and preventing the private respondents from traversing any part of it.) virtual law library ,
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As a direct consequence of these closures an action for injunction with damages was filed against the petitioner by the private respondents on September 2 1982 4 before the then Court of First Instance of Cebu. In their complaint the private respondents assailed the petitioner's closure of the original passageway which they (private respondents) claimed to be an "ancient road r ight of way" that had been existing before World War II and since then had been used by them the community and the general public either as pedestrians or by means of vehicles in going to and coming from Lapu-Lapu City and other parts of the country. The private respondents averred that by closing the alleged road right of way in ,
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question the petitioner had deprived them access to their properties and caused them damages.virtualawlibrary virtual law library ,
In the same complainant the private respondents likewise alleged that the petitioner had constructed a dike on the beach fronting the latter's property without the necessary permit obstructing the passage of the residents and local fishermen and trapping debris and flotsam on the beach. They also claimed that the debris and flotsam that had accumulated prevented them from using their properties for the purpose for which they had acquired them. The complaint this prayed for the trial court to order the re-opening of the original passageway across the petitioner's 5 property as well as the destruction of the dike. virtual law library ,
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In its answer the petitioner denied the existence of an ancient road through its property and counter-averred among others that it and its predecessors-in-interest had permitted the temporary intermittent and gratuitous use of or passage through its property by the private respondents and others by mere tolerance and purely as an act of neighborliness. It justified the walling in of its property in view of the need to insure the safety and security of its hotel and beach resort and for the protection of the privacy and convenience of its hotel patrons a nd guests. At any rate the petitioner alleged the private respondents were not entirely dependent on the subject passageway as they (private respondents) had another existing and adequate access to the public road through other properties. With respect to the dike it allegedly constructed the petitioner stated that what it built was a breakwater on the foreshore land fronting its property and not a dike as claimed by the private respondents. Moreover contrary to the private respondents' accusation the said construction had benefitted the community especially the fishermen who used the same as mooring for their boats during low tide. The quantity of flotsam and debris which had formed on the private respondents' beach front on the other hand were but the natural and unavoidable accumulations on beaches by the action of the tides and movement of the waves of the sea. The petitioner's answer then assailed the private respondents' complaint for its failure to implead as defendants the owners of the other properties supposedly traversed by the alleged ancient road right way indispensable parties without whom no final adjudication of the 7 controversy could be rendered. virtual law library ,
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After trial the court a quo rendered a decision on March 15 1984 finding that the private respondents had acquired a vested right over the passageway in controversy based on its long existence and its continued use and enjoyment not only by the private respondents but also by the community at large. The petitioner in so ,
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closing the said passageway had accordingly violated the private respondents' vested right. Thus the trial court ordered the petitioner: ,
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1. To open and make available the road in question to the plaintiffs and the general public at all times free of any obstacle thereof unless the defendant shall provide another road equally accessible and convenient as the road or passage closed by the defendant; virtual law library ,
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2. To pay the plaintiff Katipunan Lumber Company Inc. the amount of FIVE THOUSAND PESOS (P5 000.00) a month beginning January 1983 and the plaintiff Perfecto Guangco the sum of TWO HUNDRED PESOS (P200.00) a month beginning September 1982 representing their respective expenditures they had incurred in other beach resorts after the road was closed until the passageway claimed by them is opened and made available to them or if the defendant chooses to provide another road until such road is made available and conveniently passable to the plaintiffs and the general public; and virtual law library ,
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3. To pay the sum of FIFTEEN THOUSAND PESOS (P15 000.00) 8 attorney's fees and to pay the costs. virtual law library ,
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Both parties elevated the trial court's decision to the Court of Appeals with the petitioner questioning the alleged "vested right" of the private respondents over the subject passageway and the private respondents assailing the dismissal of their complaint insofar as their prayer for the demolition of the petitioner's "dike" is concerned.virtualawlibrary virtual law library ,
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In its decision the respondent Appellate Court held as without basis the trial court's finding that the private respondents had acquired a vested right over t he 9 passageway in question by virtue of prescription. The appellate court pointed out that an easement of right of way is a discontinuous one which under Article 622 of the New Civil Code may only be acquired by virtue of a title and not by 10 prescription. That notwithstanding the appellate court went on to rule that ". . . in the interest of justice and in the exercise by this Court of its equity jurisdiction there is no reason for Us in not treating the easement here sought by appellees Katipunan Lumber Co. Inc. and Perfecta Guangco as one that is not dependent upon the claims of the parties but a compulsory one that is legally demandable by 11 the owner of the dominant estate from the owner of the servient estate." Thus the ,
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appellate court: (1) granted the private respondents the right to an eas ement of way on the petitioner's property using the passageway in question unless the petitioner should provide another passageway equally accessible and convenient as the one it closed; (2) remanded the case to the trial court for the determination of the just and proper indemnity to be paid to the petitioner by the private respondents for the said easement; and (3) set aside the trial court's award of actual damages and attorney's 12 fees. virtual law library ,
On petitioner's motion for partial reconsideration the respondent court issued on 13 October 27 1987 a resolution denying the said motion. The Appellate Court however in denying the petitioner's motion for reconsideration stated that: ,
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. . . While it is true that there is another outlet for the plaintiff to the main road yet such outlet is a new road constructed in 1979 while the road closed by defendant existed since over 30 years before. Legally the old road could be closed; but since the existing outlet is inconvenient to the plaintiff equitably the plaintiff should be given a chance to pay for a more convenient outlet through the land of the defendant at a point least prejudicial to the latter. In any e vent the plaintiff shall pay for all damages that defendant corporation may sustain and the defendant regulates the manner of use of the right of way to protect defendant's property and its customers. This is the gist 14 of Our decision. virtual law library ,
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Now before us the petitioner contends that the decision of the respondent appellate court is grossly erroneous and not in accord with the provisions of Articles 649 and 650 of the Civil Code on easements and the prevailing jurisprudence on the matter.virtualawlibrary virtual law library ,
The petition is meritorious.virtualawlibrary virtual law library It is already well-established that an easement of right of way as is involved here 15 16 is discontinuous and as such can not be acquired by prescription. Insofar therefore as the appellate court adhered to the foregoing precepts it stood correct. Unfortunately after making the correct pronouncement the respondent Appellate Court did not order the reversal of the trial court's decision and the dismissal of the complaint after holding that no easement had been validly constituted over the petitioner's property. Instead the Appellate Court went on to commit a reversible error by considering the passageway in issue as a compulsory easement which the private respondents as owners of the "dominant" estate may demand from the ,
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petitioner the latter being the owner of the "servient" estate. virtualawlibrary virtual law library It is provided under Articles 649 and 650 of the New Civil Code that: Art. 649. The owner or any person who by virtue of a real right may cultivate or use any immovable which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway is entitled to demand a right of way through the neighboring estates after payment of the proper indemnity.virtualawlibrary virtual law library ,
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Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate establishing a permanent passage the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate.virtualawlibrary virtual law library ,
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In case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate without a permanent way the indemnity shall consist in the payment of the damage caused by such encumbrance.virtualawlibrary virtual law library ,
This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts. virtualawlibrary virtual law library Art. 650. The easement of right of way shall be established at the point least prejudicial to the servient estate and insofar as consistent with this rule where the distance from the dominant estate to a public highway may be the shortest. ,
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Based on the foregoing the owner of the dominant estate may validly claim a compulsory right of way only after he has established the existence of four requisites to wit: (1) the (dominant) estate is surrounded by other immovables and is without adequate outlet to a public highway; (2) after payment of t he proper indemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of way claimed is at a point least prejudicial to the servient estate. Additionally the burden of proving the existence of the foregoing pre-requisites 17 lies on the owner of the dominant estate. virtual law library ,
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Here there is absent any showing that the private respondents had established the existence of the four requisites mandated by law. For one they failed to prove that there is no adequate outlet from their respective properties to a public highway. On the contrary as alleged by the petitioner in its answer to the complaint and confirmed by the appellate court "there is another outlet for the plaintiffs (private 18 respondents) to the main road." Thus the respondent Court of Appeals likewise admitted that "legally the old road could be 19 closed." Yet it ordered the re- opening of the old passageway on the ground that 20 "the existing outlet (the other outlet) is inconvenient to the plaintiff." On this score it is apparent that the Court of Appeals lost sight of the fact that the convenience of the dominant estate has never been the gauge for the grant of 21 compulsory right of way. To be sure the true standard for the grant of the legal right is "adequacy." Hence when there is already an existing adequate outlet from the dominant estate to a public highway even if the said outlet for one reason or another be inconvenient the need to open up another servitude is entirely unjustified. For to justify the imposition of an ease ment or right of way "there 22 must be a real not a fictitious or artificial necessity for it." virtual law library ,
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Further the private respondents failed to indicate in their complaint or even to manifest during the trial of the case that they were willing to indemnify fully the petitioner for the right of way to be established over its property. Neither have the private respondents been able to show that the isolation of their property was not due to their personal or their predecessors-in-interest's own acts. Finally the private respondents failed to allege much more introduce any evidence that the passageway they seek to be re-opened is at a point least prejudicial to the petitioner. Considering that the petitioner operates a hotel and beach resort in its property it must undeniably maintain a strict standard of security within its premises. Otherwise the convenience privacy and safety of its clients and patrons would be compromised. That indubitably will doom the petitioner's business. It is therefore of great importance that the claimed light of way over the petitioner's property be located at a point least prejudicial to its business.virtualawlibrary virtual law library ,
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Hence the Private respondents' properties can not be said to be isolated for which a compulsory easement is demandable. Insofar therefore as the Appellate Court declared the case to be proper as a controversy for a compulsory right of way this Court is constrained to hold that it was in error. virtualawlibrary virtual law library ,
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Servitudes of right of way are an ancient concept which date back to the iter, 23 actus, and via of the Romans. They are demanded by necessity that is to enable ,
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owners of isolated estates to make full use of their properties which lack of access 24 to public roads has denied them. Under Article 649 of the Civil Code they are compulsory and hence legally demandable subject to indemnity and the concurrence of the other conditions above-referred to. virtualawlibrary virtual law library ,
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As also earlier indicated there must be a real necessity therefor and not mere convenience for the dominant estate. Hence if there is an existing outlet otherwise adequate to the highway the "dominant" estate can not demand a right of way although the same may not be convenient. Of course the question of when a particular passage may be said to be "adequate" depends on the circumstances of each case. Manresa however says: "In truth not only the estate which absolutely does not possess it should be considered in this condition but also that which does not have one sufficiently safe or serviceable; an estate bordering a public road through an inaccessible slope or precipice is in fact isolated for all the effects of the easement requested by its owner. On the other hand an estate which for any reason has necessarily lost its access to a public road during certain periods of the year is in the same condition. . . . There are some who propound the query as to whether the fact that a river flows between the estate and the public road should be considered as having the effect of isolating the estate. . . . If the river may be crossed conveniently at all times without the least danger it cannot be said that the 25 estate is isolated; in any other case the answer is in the affirmative." virtual law library ,
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The isolation of the dominant estate is also dependent on the particular need of the dominant owner and the estate itself need not be totally landlocked. What is important to consider is whether or not a right of way is necessary to fill a 26 reasonable need therefor by the owner. Thus as Manresa had pointed out if the 27 passageway consists of an "inaccessible slope or precipice " it is as if there is no passageway that is one that can sufficiently fulfill the dominant owner's necessities although by the existence of that passageway the property can not be truly said that the property is isolated. So a lso while an existing right of way may have proved adequate at the start the dominant owner's need may have changed since then for which Article 651 of the Code allows adjustments as to 28 width. virtual law library ,
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But while a right of way is legally demandable the owner of the dominant estate is not at liberty to impose one based on arbitrary choice. Under Article 650 of the Code it shall be established upon two criteria: (1) at the point least prejudicial to the servient state; and (2) where the distance to a public highway may be the ,
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shortest. According however to one commentator "least prejudice" prevails over 29 "shortest distance." Yet each case must be weighed according to its individual merits and judged according to the sound discretion of the court. "The court " says Tolentino "is not bound to establish what is the shortest; a longer way may be established to avoid injury to the servient tenement such as when there are constuctions or walls which can be avoided by a roundabout way or to secure the interest of the dominant owner such as when the shortest distance would place the 30 way on a dangerous decline." virtual law library ,
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It is based on these settled principles that we have resolved this case.virtualawlibrary virtual law library WHEREFORE the decision dated May 30 1986 and the resolution dated October 27 1987 of the respondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby DISMISSED. Costs against the private respondents.virtualawlibrary virtual law library ,
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SO ORDERED. Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.
Endnotes:
1 Ejercito Bienvenido C. J. ponente Coquia Jorge R. and CastroBartolome Floreliana JJ . concurring; Rollo 52-59. virtual law library ,
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2 The Court of Appeals was impleaded as a party respondent by virtue of the Court Resolution dated September 11 1989. virtual law library ,
3 Penned by Judge Teodoro K. Risos; Rollo Id . 44-50. virtual law library ,
4 Rollo id . 11. virtual law library ,
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5 Id . 28-31. virtual law library ,
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6 Id . 12. virtual law library ,
7 Id . 33-42. virtual law library ,
8 Id . 50. virtual law library ,
9 Id . 57. virtual law library ,
10 Id . virtual law library 11 Id . 58. virtual law library ,
12 Id . 59. virtual law library ,
13 Id . 61. virtual law library ,
14 Id . virtual law library 15 Ronquillo vs. Roco 103 Phil. 84 (1958); Cuaycong vs. Benedicto 37 Phil. 781 (1918). virtual law library ,
16 CIVIL CODE art. 622; Ronquillo vs. Roco supra Cuaycong vs. Benedicto supra. virtual law library ,
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17 Locsin vs. Climaco No. L-27319 January 31 1969 26 SCRA 816; Angela Estate Inc. vs. Court of First Instance of Negros Occidental No. L-27084 July 31 1968 24 SCRA 500; BacolodMurcia Milling Co. Inc. vs. Capitol Subdivision No. L-25887 July 26 1966 17 SCRA 731. virtual law library ,
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18 Rollo id . 61. virtual law library ,
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19 Id . virtual law library 20 Id . virtual law library 21 Rivera vs. Intermediate Appellate Court No. 74249 January 20 1989 169 SCRA 307; Ramos Sr. vs. Gatchalian Realty Inc. No. 75905 October 12 1987 154 SCRA 703. virtual law library ,
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22 Ramos Sr. vs. Gatchalian Realty Inc. supra 712; see also II TOLENTINO CIVIL CODE OF THE PHILIPPINES 371. (1972 ed.). virtual law library ,
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23 II FRANCISCO CIVIL CODE OF THE PHILIPPINES 787. virtual law library ,
24 Id . virtual law library 25 Id . , 789. virtual law library 26 Id . , 790. virtual law library 27 Id . , 789. virtual law library 28 Id . , 790. virtual law library 29 TOLENTINO , id . 373. virtual law library ,
30 Id . 374. ,
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