G.R. L-No.

2085 August 10, 1909

TIBURCIO SAENZ,Plaintiff-Appellant, vs. FIGUERAS HERMANOS,Defendant-Appellee.

Antonio V. Herrero for appellant.

Espiridion Guanco for appellee.

JOHNSON, J. :chanrobles virtual law library

It appears from the record that the plaintiff and the defendant own adjoining lots within the
municipality of Iloilo; that the defendant had constructed or was constructing a house of strong
materials upon its lot; that the line of the said house on the side toward the lot belonging to the
plaintiff was less than two meters from dividing line of the two lots; that the said house was of
two stories; that on the side of the house toward the lot of the plaintiff, the defendant in the first
story had placed three windows and in the second story had placed five windows, each looking
directly upon the lot of the plaintiff; and that the defendant had not obtained the permission of
the plaintiff to place the said windows and balconies in the manner above
indicated.chanroblesvirtualawlibrary chanrobles virtual law library

The defendant filed a general and a special denial. In its special denial the defendant alleged that
its house was being constructed in accordance with the law and customs of the
place.chanroblesvirtualawlibrary chanrobles virtual law library

After the hearing the evidence adduced during the trial of said cause, the lower court made the
following findings of fact:

The plaintiff's lot is now vacant but he intends to build a house thereon for business purposes,
and with that end in view has already deposited some lumber in said lot. The defendants have
constructed a two-story house on their lot, using the ground floor for stores, and the upper floor
as a dwelling. They have erected said house at a distance of 71 centimeters from the dividing line
at the front part, and at a distance of 70 centimeters at the rear. The house of the defendants is
being put to the use for which it was built. The defendants have opened three windows on the
ground floor of their house, in the part that overlooks the lot of the plaintiff, each window being
1 meter and 20 centimeters wide and 2 meters high; on the upper floor they have opened 5
windows, each 2 meters and 11 centimeters high and 1 meter and 60 centimeters wide; they have
also constructed a balcony at the front part of the house above the ground floor, opening directly
upon the lot of the plaintiff, and another balcony at the rear part of the house, which up to the
present time opens directly upon the plaintiff's lot, although the defendants state that, according
to the plan, said part is to be closed with boards. All of said windows are required for the proper
lighting and ventilation of said house, and for the circulation of air therein. The house of the
defendants is 23 meters long and built almost parallel to the dividing line between the plaintiff's
lot and that of the defendants. All of said windows and balconies are at a distance of less than
one meter from the dividing line of the plaintiff's lot and that of the defendants, and are looking
directly over the same.

The plaintiff claims that, under articles 581 and 582 of the Civil Code, the defendant is
prohibited from constructing his house and opening the windows and balconies looking directly
upon his property in the manner above described, and prays that the court issue an order
directing the defendant to close said windows and that the said defendant be prohibited
perpetually from constructing openings in its house except in conformity with said articles of the
Civil Code.chanroblesvirtualawlibrary chanrobles virtual law library

The lower court, after a full consideration of the evidence adduced during the trial of the cause
and after making the above findings of fact, concluded his sentence in the following language:

In view of the circumstances mentioned above, and although I find that the windows of the house
come within the prohibition contained in article 582 of the Civil Code, I am of the opinion that
the plaintiff is not entitled to the judgment asked for, or for any other judgment in his favor.
Therefore, it is ordered that judgment be entered in favor of the defendant for the recovery of the
costs herein. - (Signed) Henry C. Bates, judge of the Ninth Judicial District.

From this sentence the plaintiff appealed.chanroblesvirtualawlibrary chanrobles virtual law

library
No motion was made for a new trial in the court below. The plaintiff excepted only to the
judgment of the lower court, basing his objection upon the ground that the sentence of the lower
court was contrary to the provisions of said article 582, and in this court insists that he has a right
under said provisions of the Civil Code to have said windows closed and to have the defendant
prohibited from making openings in the side of the house overlooking his yard except those
openings provided for under said article.chanroblesvirtualawlibrary chanrobles virtual law
library

Article 581 of the Civil Code is as follows:

ART. 581. The owner of a wall which is not a party wall, adjoining another's estate, may make in
it windows or openings to admit light, at the height of the ceiling joists or immediately under the
ceiling, of the dimensions of thirty centimeters square, and, in any case, with an iron grate
embedded in the wall and a wire screen.chanroblesvirtualawlibrary chanrobles virtual law library

However, the owner of the house or estate adjoining the wall in which the openings are made
may close them, if he acquires the part ownership of the wall and should there be no agreement
to the contrary.chanroblesvirtualawlibrary chanrobles virtual law library

He may also obstruct them by building on his land or raising a wall adjacent to that having such
opening or window.

Article 582 of the Civil Code provides as follows:

ART. 582. Windows with direct views, or balconies or any similar openings projecting over the
estate of the neighbor, can not be made if there is not a distance of, at least, two meters between
the wall in which they are built and said estate.chanroblesvirtualawlibrary chanrobles virtual law
library

Neither can side nor oblique views be opened over said property, unless there is a distance of
sixty centimeters.
The foregoing provisions of the Civil Code enumerate the conditions under which an adjoining
lot owner may enjoy the easement of light and view. These provisions are positive and persons
attempting to exercise easement of light and view upon property of adjoining landowners are
governed by its provisions. Said article 582 absolutely prohibits the construction of windows
with direct views, or balconies or any similar openings projecting over adjoining property, unless
there is a distance of at least 2 meters between the wall in which they are built and the adjoining
property. The evidence adduced during the trial in the court below was not brought here.
Therefore, we are governed as to the facts by the findings of the lower court. The lower court
found that the distance between the wall of the house of the defendant and the dividing line
between the two lots was only 71 centimeters. The defendant, therefore, has violated the
provisions of said article 582 by building in his house nearer the line of the property of the
plaintiff than a distance of 2 meters.chanroblesvirtualawlibrary chanrobles virtual law library

Said article 581 provides the character of windows or openings in a wall adjoining the property
of another when such wall is constructed nearer the dividing line of the two properties than 2
meters. In the present case the defendant constructed his house so that the wall looking upon the
property of the plaintiff was less than 2 meters from the dividing line. He can, therefore, only
construct such windows as are provided for in said article 581.chanroblesvirtualawlibrary
chanrobles virtual law library

The lower court bases his conclusions largely upon the fact that the plaintiff had stood by and
permitted the defendant to construct, or partially construct, his house without having made any
objections, as well as the further fact that the plaintiff had received no damages whatever except
purely sentimental damages. The first ground would seem to imply that the lower court was of
the opinion that the plaintiff was estopped from insisting upon his rights under the law, he having
permitted the defendant to partially construct the house in the manner above described. There is
nothing in the decision of the lower court which shows that the plaintiff at any time before the
commencement of the present action knew that the house of the defendant was being constructed
in violation of the provisions of said above-quoted articles. It was the duty of the defendant to
construct his house in accordance with the provisions of the law. The plaintiff was not obliged to
stand by for the purpose of seeing that the defendant had not violated the law. There are many
cases where the doctrine of estopped may be invoked against one who claims a right where he
has stood by and either expressly or tacitly given his consent to a violation of his right by
another. This doctrine, however, can not be invoked where the law imposes an express duty upon
the other person and prohibits him from the exercise of certain acts in a certain way. The
defendant only can blame himself for not constructing his house in the manner provided for by
law under the facts in the present case. (See decision of the supreme court of Spain, June 6,
1892; 4 Manresa, 734, 735, 736-739; 9 Alcubilla, 541.) chanrobles virtual law library

Under all of the facts and the law presented in the present case, we are of the opinion, and so
hold, that the defendant is not entitled to the easement of light and view which the windows and
openings, which he was made in the house in question, give him, and, because of the fact that he
has constructed his houses nearer than 2 meters to the dividing line between his property and the
property of the plaintiff, he is only entitled to the easement of light and view provided for in said
article 581 above quoted. Therefore, let a judgment be entered reversing the judgment of the
lower court with costs, and directing the defendants, within a period of thirty days from the
receipt of the notice of this decision, to close the said openings and windows, in the said house,
looking directly upon the property of the plaintiff. So ordered.

SECOND DIVISION

GOLDCREST REALTY G.R. No. 171072

CORPORATION,
Petitioner, Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,
- versus - TINGA,
VELASCO, JR., and
BRION, JJ.

CYPRESS GARDENS CONDOMINIUM Promulgated:

CORPORATION,
Respondent. April 7, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

For review on certiorari are the Decision[1] dated September 29, 2005 and the
Resolution[2] dated January 16, 2006 of the Court of Appeals in CA G.R. SP No. 79924.

The antecedent facts in this case are as follows:

 Petitioner Goldcrest Realty Corporation (Goldcrest) is the developer of Cypress Gardens,
a ten-storey building located at Herrera Street, Legaspi Village, Makati City. On April 26, 1977,
Goldcrest executed a Master Deed and Declaration of Restrictions[3] which
constituted Cypress Gardens into a condominium project and incorporated respondent Cypress
Gardens Condominium Corporation (Cypress) to manage the condominium project and to hold
title to all the common areas. Title to the land on which the condominium stands was transferred
to Cypress under Transfer Certificate of Title No. S-67513. But Goldcrest retained ownership of
the two-level penthouse unit on the ninth and tenth floors of the condominium registered under
Condominium Certificate of Title (CCT) No. S-1079 of the Register of Deeds
of Makati City. Goldcrest and its directors, officers, and assigns likewise controlled the
management and administration of the Condominium until 1995.

Following the turnover of the administration and management of the Condominium to the
board of directors of Cypress in 1995, it was discovered that certain common areas pertaining
to Cypress were being occupied and encroached upon by Goldcrest. Thus, in 1998, Cypress filed a
complaint with damages against Goldcrest before the Housing and Land Use Regulatory Board
(HLURB), seeking to compel the latter to vacate the common areas it allegedly encroached on and
to remove the structures it built thereon. Cypresssought to remove the door erected by Goldcrest
along the stairway between the 8th and 9th floors, as well as the door built in front of the 9th floor
elevator lobby, and the removal of the cyclone wire fence on the roof deck. Cypress likewise
prayed that Goldcrest pay damages for its occupation of the said areas and for its refusal to remove
the questioned structures.

For its part, Goldcrest averred that it was granted the exclusive use of the roof decks
limited common area by Section 4(c)[4] of the condominiums Master Deed. It likewise argued
that it constructed the contested doors for privacy and security purposes, and that, nonetheless,
the common areas occupied by it are unusable and inaccessible to other condominium unit
owners.

Upon the directive of HLURB Arbiter San Vicente, two ocular inspections[5] were
conducted on the condominium project. During the first inspection, it was found that Goldcrest
enclosed and used the common area fronting the two elevators on the ninth floor as a storage
room. It was likewise discovered that Goldcrest constructed a permanent structure which
encroached 68.01 square meters of the roof decks common area.[6]

During the second inspection, it was noted that Goldcrest failed to secure an alteration
approval for the said permanent structure.
 In his Decision[7] dated December 2, 1999, Arbiter San Vicente ruled in favor
of Cypress. He required Goldcrest, among other things, to: (1) remove the questioned structures,
including all other structures which inhibit the free ingress to and egress from the condominiums
limited and unlimited common areas; (2) vacate the roof decks common areas and to pay actual
damages for occupying the same; and (3) pay an administrative fine for constructing a second
penthouse and for making an unauthorized alteration of the condominium plan.

On review, the HLURB Special Division modified the decision of Arbiter San Vicente. It
deleted the award for actual damages after finding that the encroached areas were not actually
measured and that there was no evidentiary basis for the rate of compensation fixed by Arbiter
San Vicente. It likewise held that Cypress has no cause of action regarding the use of the roof
decks limited common area because only Goldcrest has the right to use the same. The dispositive
portion of the decision reads:

WHEREFORE, in view of the foregoing, the decision of the office [is]

modified as follows:

1. Directing respondent to immediately remove any or all structures

which obstruct the use of the stairway from the eighth to tenth floor, the passage
and use of the lobbies at the ninth and tenth floors of the Cypress Gardens
Condominium; and to remove any or all structures that impede the use of the
unlimited common areas.

2. Ordering the respondent to pay an administrative fine of P10,000.00

for its addition of a second penthouse and/or unauthorized alteration of the
condominium plan.

All other claims are hereby dismissed.

SO ORDERED.[8]

Aggrieved, Cypress appealed to the Office of the President. It questioned the deletion of
the award for actual damages and argued that the HLURB Special Division in effect ruled that
Goldcrest could erect structures on the roof decks limited common area and lease the same to
third persons.

The Office of the President dismissed the appeal. It ruled that the deletion of the award
for actual damages was proper because the exact area encroached by Goldcrest was not
determined. It likewise held that, contrary to the submissions of Cypress, the assailed decision
did not favor the building of structures on either the condominiums limited or unlimited common
areas. The Office of the President stressed that the decision did not only order Goldcrest to
remove the structures impeding the use of the unlimited common areas, but also fined it for
making unauthorized alteration and construction of structures on the condominiums roof
deck.[9] The dispositive portion of the decision reads:

WHEREFORE, premises considered, the appeal of Cypress Gardens

Corporation is hereby DISMISSED and the decision of the
Board a quo dated May 11, 2000 is hereby AFFIRMED.

SO ORDERED.[10]

Cypress thereafter elevated the matter to the Court of Appeals, which partly granted its
appeal. The appellate court noted that the right of Goldcrest under Section 4(c) of the Master
Deed for the exclusive use of the easement covering the portion of the roof deck appurtenant to
the penthouse did not include the unrestricted right to build structures thereon or to lease such
area to third persons. Thus the appellate court ordered the removal of the permanent structures
constructed on the limited common area of the roof deck.The dispositive portion of the decision
reads:

WHEREFORE, the petition is PARTIALLY GRANTED. The Decision

of the Office of the President dated June 2, 2003 is hereby AFFIRMED with
modification. Respondent Goldcrest Realty Corporation is further directed to
remove the permanent structures constructed on the limited common area of the
roof deck.

SO ORDERED.[11]

The parties separately moved for partial reconsideration but both motions were denied.

Hence this petition, raising the following issues:

I.
[WHETHER OR NOT] THE APPELLATE COURT ERRED IN RULING THAT
GOLDCREST BUILT AN OFFICE STRUCTURE ON A SUPPOSED
ENCROACHED AREA IN THE OPEN SPACE OF THE ROOF DECK.

II.
[WHETHER OR NOT] THE APPELLATE COURT ERRED IN RULING THAT
PETITIONER IMPAIRED THE EASEMENT ON THE PORTION OF THE
ROOF DECK DESIGNATED AS A LIMITED COMMON AREA.[12]
 Anent the first issue, Goldcrest contends that since the areas it allegedly encroached
upon were not actually measured during the previous ocular inspections, the finding of the Court
of Appeals that it built an office structure on the roof decks limited common area is erroneous
and that its directive to remove the permanent structures[13]constructed on the limited common
area of the roof deck is impossible to implement.

On the other hand, Cypress counters that the Court of Appeals finding is correct. It also
argues that the absence of such measurement does not make the assailed directive impossible to
implement because the roof decks limited common area is specifically identified by Section 4(c)
of the Master Deed, which reads:

Section. 4. The Limited Common Areas. Certain parts of the common

areas are to be set aside and reserved for the exclusive use of certain units and
each unit shall have appurtenant thereto as exclusive easement for the use of such
limited areas:

xxxx

(c) Exclusive use of the portion of the roof deck (not shaded red in sheet
10 of Annex B) by the Penthouse unit on the roof deck.[14]

xxxx

We rule in favor of Cypress. At this stage of the proceedings, the failure to measure the
supposed encroached areas is no longer relevant because the award for actual damages is no
longer in issue. Moreover, a perusal of the records shows that the finding of the Court of Appeals
that Goldcrest built an office structure on the roof decks limited common area is supported by
substantial evidence and established facts, to wit: (1) the ocular inspection reports submitted by
HLURB Inspector Edwin D. Aquino; (2) the fact that the second ocular inspection of the roof
deck was intended to measure the actual area encroached upon by Goldcrest; [15] (3) the fact that
Goldcrest had been fined for building a structure on the limited common area;[16] and (4) the fact
that Goldcrest neither denied the structures existence nor its encroachment on the roof decks
limited common area.

Likewise, there is no merit in Goldcrests submission that the failure to conduct an actual
measurement on the roof decks encroached areas makes the assailed directive of the Court of
Appeals impossible to implement. As aptly pointed out by Cypress, the limited common area of
the roof deck is specifically identified by Section 4(c) of the Master Deed.
 Anent the second issue, Goldcrest essentially contends that since the roof decks
common limited area is for its exclusive use, building structures thereon and leasing the same to
third persons do not impair the subject easement.

For its part, Cypress insists the said acts impair the subject easement because the same
are already beyond the contemplation of the easement granted to Goldcrest.

The question of whether a certain act impairs an easement is undeniably one of fact,
considering that its resolution requires us to determine the acts propriety in relation to the character
and purpose of the subject easement.[17] In this case, we find no cogent reason to overturn the
similar finding of the HLURB, the Office of the President and the Court of Appeals that Goldcrest
has no right to erect an office structure on the limited common area despite its exclusive right to
use the same. We note that not only did Goldcrests act impair the easement, it also illegally altered
the condominium plan, in violation of Section 22[18] of Presidential Decree No. 957.[19]

The owner of the dominant estate cannot violate any of the following prescribed
restrictions on its rights on the servient estate, to wit: (1) it can only exercise rights necessary for
the use of the easement;[20] (2) it cannot use the easement except for the benefit of the immovable
originally contemplated;[21] (3) it cannot exercise the easement in any other manner than that
previously established;[22] (4) it cannot construct anything on it which is not necessary for the use
and preservation of the easement;[23] (5) it cannot alter or make the easement more
burdensome;[24] (6) it must notify the servient estate owner of its intention to make necessary
works on the servient estate;[25] and (7) it should choose the most convenient time and manner to
build said works so as to cause the least convenience to the owner of the servient estate.[26] Any
violation of the above constitutes impairment of the easement.

Here, a careful scrutiny of Goldcrests acts shows that it breached a number of the
aforementioned restrictions. First, it is obvious that the construction and the lease of the office
structure were neither necessary for the use or preservation of the roof decks limited
area. Second, the weight of the office structure increased the strain on the condominiums
foundation and on the roof decks common limited area, making the easement more burdensome
and adding unnecessary safety risk to all the condominium unit owners. Lastly, the construction
of the said office structure clearly went beyond the intendment of the easement since it illegally
altered the approved condominium project plan and violated Section 4[27] of the condominiums
Declaration of Restrictions.[28]
 WHEREFORE, the petition is DENIED for lack of merit. The assailed Decision
dated September 29, 2005 of the Court of Appeals in CA G.R. SP. No. 79924 is
hereby AFFIRMED. Costs against the petitioner.

SO ORDERED.

[G.R. No. 124699. July 31, 2003]

BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT OF APPEALS AND

HEIRS OF MAGDALENO VALDEZ SR., respondents.

DECISION
CORONA, J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to annul and set
aside the decision[1] dated November 17, 1995 of the Court of Appeals, Tenth Division, which
reversed the decision[2] dated November 27, 1991 of the Regional Trial Court of Cebu City,
Branch IX, which ruled in favor of herein petitioner, Bogo-Medellin Milling Company, Inc. and
dismissed herein private respondents' complaint for payment of compensation and/or recovery of
possession of real property and damages with application for restraining order or preliminary
injunction; and its resolution dated March 2, 1996 denying petitioner's motion for
reconsideration.
The antecedent facts follow.
Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez, Angelina
Valdez-Novabos, Teresita Argawanon-Mangubat and Daylinda Argawanon-Melendres (hereafter
the heirs), purchased from Feliciana Santillan, on December 9, 1935, a parcel of unregistered
land covered by Tax Declaration No. 3935 with an area of one hectare, 34 ares and 16 centares,
located in Barrio Dayhagon, Medellin, Cebu.[3] He took possession of the property and declared
it for tax purposes in his name.[4]
Prior to the sale, however, the entire length of the land from north to south was already
traversed in the middle by railroad tracks owned by petitioner Bogo-Medellin Milling Co., Inc.
(hereafter Bomedco). The tracks were used for hauling sugar cane from the fields to petitioners
sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents inherited the
land. However, unknown to them, Bomedco was able to have the disputed middle lot which was
occupied by the railroad tracks placed in its name in the Cadastral Survey of Medellin, Cebu in
1965. The entire subject land was divided into three, namely, Cadastral Lot Nos. 953, 954 and
955. Lot Nos. 953 and 955 remained in the name of private respondents. However, Lot No. 954,
the narrow lot where the railroad tracks lay, was claimed by Bomedco as its own and was
declared for tax purposes in its name. [5]
It was not until 1989 when private respondents discovered the aforementioned claim of
Bomedco on inquiry with the Bureau of Lands. Through their lawyer, they immediately
demanded the legal basis for Bomedco's claim over Cadastral Lot No. 954 but their letter of
inquiry addressed to petitioner went unheeded, as was their subsequent demand for payment of
compensation for the use of the land.[6]
On June 8, 1989, respondent heirs filed a Complaint for Payment of Compensation and/or
Recovery of Possession of Real Property and Damages with Application for Restraining
Order/Preliminary Injunction against Bomedco before the Regional Trial Court of
Cebu.[7] Respondent heirs alleged that, before she sold the land to Valdez, Sr. in 1935, Santillan
granted Bomedco, in 1929, a railroad right of way for a period of 30 years. When Valdez, Sr.
acquired the land, he respected the grant. The right of way expired sometime in 1959 but
respondent heirs allowed Bomedco to continue using the land because one of them was then an
employee of the company.[8]
In support of the complaint, they presented an ancient document ― an original copy of the
deed of sale written in Spanish and dated December 9, 1935[9] ― to evidence the sale of the land
to Magdaleno Valdez, Sr.; several original real estate tax receipts[10] including Real Property Tax
Receipt No. 3935[11] dated 1922 in the name of Graciano de los Reyes, husband of Feliciana
Santillan, and Real Property Tax Receipt No. 09491[12] dated 1963 in the name of Magdaleno
Valdez, Sr. Magdaleno Valdez, Jr. also testified for the plaintiffs during the trial.
On the other hand, Bomedcos principal defense was that it was the owner and possessor of
Cadastral Lot No. 954, having allegedly bought the same from Feliciana Santillan in 1929, prior
to the sale of the property by the latter to Magdaleno Valdez, Sr. in 1935. It also contended that
plaintiffs claim was already barred by prescription and laches because of Bomedcos open and
continuous possession of the property for more than 50 years.
Bomedco submitted in evidence a Deed of Sale[13] dated March 18, 1929; seven real estate
tax receipts[14] for the property covering the period from 1930 to 1985; a 1929 Survey Plan of
private land for Bogo-Medellin Milling Company;[15] a Survey Notification Card;[16] Lot Data
Computation for Lot No. 954;[17] a Cadastral Map for Medellin Cadastre[18] as well as the
testimonies of Vicente Basmayor, Geodetic Engineer and property custodian for Bomedco, and
Rafaela A. Belleza, Geodetic Engineer and Chief of the Land Management Services of the
DENR, Region VIII.
In its decision dated November 27, 1991, the trial court[19] rejected Bomedco's defense of
ownership on the basis of a prior sale, citing that its evidence a xerox copy of the Deed of Sale
dated March 18, 1929 was inadmissible and had no probative value. Not only was it not signed
by the parties but defendant Bomedco also failed to present the original copy without valid
reason pursuant to Section 4, Rule 130 of the Rules of Court.[20]
Nonetheless, the trial court held that Bomedco had been in possession of Cadastral Lot No.
954 in good faith for more than 10 years, thus, it had already acquired ownership of the property
through acquisitive prescription under Article 620 of the Civil Code. It explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT easements can be
acquired by prescription after ten (10) years. The apparent characteristic of the questioned
property being used by defendant as an easement is no longer at issue, because plaintiffs
themselves had acknowledged that the existence of the railway tracks of defendant Bomedco was
already known by the late Magdaleno Valdez, herein plaintiffs predecessor-in-interest, before the
late Magdaleno Valdez purchased in 1935 from the late Feliciana Santillan the land described in
the Complaint where defendants railway tracks is traversing [sic] (TSN of February 5, 1991, pp.
7-8). As to the continuity of defendants use of the strip of land as easement is [sic] also manifest
from the continuous and uninterrupted occupation of the questioned property from 1929 up to the
date of the filing of the instant Complaint. In view of the defendants UNINTERRUPTED
possession of the strip of land for more than fifity (50) years, the Supreme Courts ruling in the
case of Ronquillo, et al. v. Roco, et al. (103 Phil 84) is not applicable. This is because in said
case the easement in question was a strip of dirt road whose possession by the dominant estate
occurs only everytime said dirt road was being used by the dominant estate. Such fact would
necessarily show that the easements possession by the dominant estate was never continuous. In
the instant case however, there is clear continuity of defendants possession of the strip of land it
had been using as railway tracks. Because the railway tracks which defendant had constructed on
the questioned strip of land had been CONTINUOUSLY occupying said easement. Thus,
defendant Bomedcos apparent and continuous possession of said strip of land in good faith for
more than ten (10) years had made defendant owner of said strip of land traversed by its railway
tracks. Because the railway tracks which defendant had constructed on the questioned strip of
land had been continuously occupying said easement [sic].Thus, defendant Bomedcos apparent
and continuous possession of said strip of land in good faith for more than ten (10) years had
made defendant owner of said strip of land traversed by its railway tracks.

Respondent heirs elevated the case to the Court of Appeals which found that Bomedco did
not acquire ownership over the lot. It consequently reversed the trial court. In its decision dated
November 17, 1995, the appellate court held that Bomedco only acquired an easement of right of
way by unopposed and continuous use of the land, but not ownership, under Article 620 of the
Civil Code.
The appellate court further ruled that Bomedcos claim of a prior sale to it by Feliciana
Santillan was untrue. Its possession being in bad faith, the applicable prescriptive period in order
to acquire ownership over the land was 30 years under Article 1137 of the Civil Code. Adverse
possession of the property started only in 1965 when Bomedco registered its claim in the
cadastral survey of Medellin. Since only 24 years from 1965 had elapsed when the heirs filed a
complaint against Bomedco in 1989, Bomedcos possession of the land had not yet ripened into
ownership.
And since there was no showing that respondent heirs or their predecessor-in-interest was
ever paid compensation for the use of the land, the appellate court awarded compensation to
them, to be computed from the time of discovery of the adverse acts of Bomedco.
Its motion for reconsideration having been denied by the appellate court in its resolution
dated March 22, 1996, Bomedco now interposes before us this present appeal by certiorari under
Rule 45, assigning the following errors:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REVERSED
AND SET ASIDE THE TRIAL COURTS DECISION DISMISSING PRIVATE
RESPONDENTS COMPLAINT.

II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT ORDERED

THE PETITIONER TO PAY THE PRIVATE RESPONDENT THE REASONABLE VALUE
OF LOT 954 AND THE AMOUNT OF TEN THOUSAND (P10,000.00) PESOS AS
REASONABLE ATTORNEYS FEES.

Petitioner Bomedco reiterates its claim of ownership of the land through extraordinary
acquisitive prescription under Article 1137 of the Civil Code and laches to defeat the claim for
compensation or recovery of possession by respondent heirs. It also submits a third ground
originally tendered by the trial court ― acquisition of the easement of right of way by
prescriptionunder Article 620 of the Civil Code.
Extraordinary Acquisitive Prescription
Under Art. 1137 of the Civil Code
Petitioners claim of ownership through extraordinary acquisitive prescription under Article
1137 of the Civil Code cannot be sustained.
There is no dispute that the controversial strip of land has been in the continuous possession
of petitioner since 1929. But possession, to constitute the foundation of a prescriptive right, must
be possession under a claim of title, that is, it must be adverse.[21] Unless coupled with the
element of hostility towards the true owner, possession, however long, will not confer title by
prescription.[22]
After a careful review of the records, we are inclined to believe the version of respondent
heirs that an easement of right of way was actually granted to petitioner for which reason the
latter was able to occupy Cadastral Lot No. 954. We cannot disregard the fact that, for the years
1930, 1937, 1949, 1962 and 1963, petitioner unequivocally declared the property to be a central
railroad right of way or sugar central railroad right of way in its real estate tax receipts when it
could have declared it to be industrial land as it did for the years 1975 and 1985.[23]Instead of
indicating ownership of the lot, these receipts showed that all petitioner had was possession by
virtue of the right of way granted to it. Were it not so and petitioner really owned the land,
petitioner would not have consistently used the phrases central railroad right of way and sugar
central railroad right of way in its tax declarations until 1963. Certainly an owner would have
found no need for these phrases. A person cannot have an easement on his own land, since all the
uses of an easement are fully comprehended in his general right of ownership.[24]
While it is true that, together with a persons actual and adverse possession of the land, tax
declarations constitute strong evidence of ownership of the land occupied by him,[25] this legal
precept does not apply in cases where the property is declared to be a mere easement of right of
way.
An easement or servitude is a real right, constituted on the corporeal immovable property of
another, by virtue of which the owner has to refrain from doing, or must allow someone to do,
something on his property, for the benefit of another thing or person. It exists only when the
servient and dominant estates belong to two different owners. It gives the holder of the easement
an incorporeal interest on the land but grants no title thereto. Therefore, an acknowledgment of
the easement is an admission that the property belongs to another.[26]
Having held the property by virtue of an easement, petitioner cannot now assert that its
occupancy since 1929 was in the concept of an owner. Neither can it declare that the 30-year
period of extraordinary acquisitive prescription started from that year.
Petitioner, however, maintains that even if a servitude was merely imposed on the property
in its favor, its possession immediately became adverse to the owner in the late 1950s when the
grant was alleged by respondent heirs to have expired. It stresses that, counting from the late
1950s (1959 as found by the trial court), the 30-year extraordinary acquisitive prescription had
already set in by the time respondent heirs made a claim against it in their letters dated March 1
and April 6, 1989.
We do not think so. The mere expiration of the period of easement in 1959 did not convert
petitioners possession into an adverse one. Mere material possession of land is not adverse
possession as against the owner and is insufficient to vest title, unless such possession is
accompanied by the intent to possess as an owner.[27] There should be a hostile use of such a
nature and exercised under such circumstances as to manifest and give notice that the possession
is under a claim of right.
In the absence of an express grant by the owner, or conduct by petitioner sugar mill from
which an adverse claim can be implied, its possession of the lot can only be presumed to have
continued in the same character as when it was acquired (that is, it possessed the land only by
virtue of the original grant of the easement of right of way),[28] or was by mere license or
tolerance of the owners (respondent heirs).[29] It is a fundamental principle of law in this
jurisdiction that acts of possessory character executed by virtue of license or tolerance of the
owner, no matter how long, do not start the running of the period of prescription.[30]
After the grant of easement expired in 1959, petitioner never performed any act
incompatible with the ownership of respondent heirs over Cadastral Lot No. 954. On the
contrary, until 1963, petitioner continued to declare the sugar central railroad right of way in its
realty tax receipts, thereby doubtlessly conceding the ownership of respondent heirs.
Respondents themselves were emphatic that they simply tolerated petitioners continued use of
Cadastral Lot No. 954 so as not to jeopardize the employment of one of their co-heirs in the
sugar mill of petitioner.[31]
The only time petitioner assumed a legal position adverse to respondents was when it filed a
claim over the property in 1965 during the cadastral survey of Medellin. Since then (1965) and
until the filing of the complaint for the recovery of the subject land before the RTC of Cebu in
1989, only 24 years had lapsed. Since the required 30-year extraordinary prescriptive period had
not yet been complied with in 1989, petitioner never acquired ownership of the subject land.
Laches
Neither can petitioner find refuge in the principle of laches. It is not just the lapse of time or
delay that constitutes laches. The essence of laches is the failure or neglect, for an unreasonable
and unexplained length of time, to do that which, through due diligence, could or should have
been done earlier, thus giving rise to a presumption that the party entitled to assert it had either
abandoned or declined to assert it.[32]
Its essential elements are: (a) conduct on the part of the defendant, or of one under whom he
claims, giving rise to the situation complained of; (b) delay in asserting complainants rights after
he had knowledge of defendants acts and after he has had the opportunity to sue; (c) lack of
knowledge or notice by defendant that the complainant will assert the right on which he bases his
suit; and (d) injury or prejudice to the defendant in the event the relief is accorded to the
complainant.[33]
The second element (which in turn has three aspects) is lacking in the case at bar. These
aspects are: (a) knowledge of defendant's action, (b) opportunity to sue defendant after obtaining
such knowledge and (c) delay in the filing of such suit.[34]
Records show that respondent heirs only learned about petitioners claim on their property
when they discovered the inscription for the cadastral survey in the records of the Bureau of
Lands in 1989. Respondents lost no time in demanding an explanation for said claim in their
letters to the petitioner dated March 1, 1989 and April 6, 1989. When petitioner ignored them,
they instituted their complaint before the Regional Trial Court of Cebu City on June 8, 1989.
Petitioners reliance on Caro vs. Court of Appeals [35] and Vda. de Alberto vs. Court of
Appeals [36] is misplaced. There, laches was applied to bar petitioners from questioning the
ownership of the disputed properties precisely because they had knowledge of the adverse claims
on their properties yet tarried for an extraordinary period of time before taking steps to protect
their rights.
Further, there is no absolute rule on what constitutes laches. It is a rule of equity and applied
not to penalize neglect or sleeping on ones rights but rather to avoid recognizing a right when to
do so would result in a clearly unfair situation. The question of laches is addressed to the sound
discretion of the court and each case must be decided according to its particular
circumstances.[37] It is the better rule that courts, under the principle of equity, should not be
guided or bound strictly by the statute of limitations or the doctrine of laches if wrong or
injustice will result.
It is clear that petitioner never acquired ownership over Cadastral Lot No. 954 whether by
extraordinary acquisitive prescription or by laches.

Acquisition of Easement of Right of Way By

Prescription Under Art. 620 of the Civil Code

Petitioner contends that, even if it failed to acquire ownership of the subject land, it
nevertheless became legally entitled to the easement of right of way over said land by virtue of
prescription under Article 620 of the Civil Code:

Continuous and apparent easements are acquired either by virtue of a title or by prescription of
ten years.
 The trial court and the Court of Appeals both upheld this view for the reason that the
railroad right of way was, according to them, continuous and apparent in nature. The more or
less permanent railroad tracks were visually apparent and they continuously occupied the subject
strip of land from 1959 (the year the easement granted by Feliciana Santillan to petitioner
expired). Thus, with the lapse of the 10-year prescriptive period in 1969, petitioner supposedly
acquired the easement of right of way over the subject land.
Following the logic of the courts a quo, if a road for the use of vehicles or the passage of
persons is permanently cemented or asphalted, then the right of way over it becomes continuous
in nature. The reasoning is erroneous.
Under civil law and its jurisprudence, easements are either continuous or discontinuous
according to the manner they are exercised, not according to the presence of apparent signs or
physical indications of the existence of such easements. Thus, an easement is continuous if its
use is, or may be, incessant without the intervention of any act of man, like the easement of
drainage;[38] and it is discontinuous if it is used at intervals and depends on the act of man, like
the easement of right of way.[39]
The easement of right of way is considered discontinuous because it is exercised only if a
person passes or sets foot on somebody elses land. Like a road for the passage of vehicles or
persons, an easement of right of way of railroad tracks is discontinuous because the right is
exercised only if and when a train operated by a person passes over another's property. In other
words, the very exercise of the servitude depends upon the act or intervention of man which is
the very essence of discontinuous easements.
The presence of more or less permanent railroad tracks does not in any way convert the
nature of an easement of right of way to one that is continuous. It is not the presence of apparent
signs or physical indications showing the existence of an easement, but rather the manner of
exercise thereof, that categorizes such easement into continuous or discontinuous.The presence
of physical or visual signs only classifies an easement into apparent or non-apparent. Thus, a
road (which reveals a right of way) and a window (which evidences a right to light and view) are
apparent easements, while an easement of not building beyond a certain height is non-
apparent.[40]
In Cuba, it has been held that the existence of a permanent railway does not make the right
of way a continuous one; it is only apparent. Therefore, it cannot be acquired by
prescription.[41] In Louisiana, it has also been held that a right of passage over another's land
cannot be claimed by prescription because this easement is discontinuous and can be established
only by title.[42]
In this case, the presence of railroad tracks for the passage of petitioners trains denotes the
existence of an apparent but discontinuous easement of right of way. And under Article 622 of
the Civil Code, discontinuous easements, whether apparent or not, may be acquired only by
title. Unfortunately, petitioner Bomedco never acquired any title over the use of the railroad right
of way whether by law, donation, testamentary succession or contract. Its use of the right of way,
however long, never resulted in its acquisition of the easement because, under Article 622, the
discontinuous easement of a railroad right of way can only be acquired by title and not by
prescription.
 To be sure, beginning 1959 when the original 30-year grant of right of way given to
petitioner Bomedco expired, its occupation and use of Cadastral Lot No. 954 came to be by mere
tolerance of the respondent heirs. Thus, upon demand by said heirs in 1989 for the return of the
subject land and the removal of the railroad tracks, or, in the alternative, payment of
compensation for the use thereof, petitioner Bomedco which had no title to the land should have
returned the possession thereof or should have begun paying compensation for its use.
But when is a party deemed to acquire title over the use of such land (that is, title over the
easement of right of way)? In at least two cases, we held that if: (a) it had subsequently entered
into a contractual right of way with the heirs for the continued use of the land under the
principles of voluntary easements or (b) it had filed a case against the heirs for conferment on it
of a legal easement of right of way under Article 629 of the Civil Code, then title over the use of
the land is deemed to exist. The conferment of a legal easement of right of way under Article 629
is subject to proof of the following:

(1) it is surrounded by other immovables and has no adequate outlet to a public

highway;

(2) payment of proper indemnity;

(3) the isolation is not the result of its own acts; and

(4) the right of way claimed is at the point least prejudicial to the servient estate, and,
insofar as consistent with this rule, the distance from the dominant estate to the
highway is the shortest.[43]

None of the above options to acquire title over the railroad right of way was ever pursued by
petitioner despite the fact that simple resourcefulness demanded such initiative, considering the
importance of the railway tracks to its business. No doubt, it is unlawfully occupying and using
the subject strip of land as a railroad right of way without valid title yet it refuses to vacate it
even after demand of the heirs. Furthermore, it tenaciously insists on ownership thereof despite a
clear showing to the contrary.
We thus uphold the grant by the Court of Appeals of attorneys fees in the amount
of P10,000 considering the evident bad faith of petitioner in refusing respondents just and lawful
claims, compelling the latter to litigate.[44]
WHEREFORE, the petition is DENIED. The appealed decision dated November 17, 1995
and resolution dated March 2, 1996 of the Court of Appeals are AFFIRMED with
MODIFICATION. Petitioner Bogo-Medellin Milling Company, Inc. is hereby ordered to vacate
the subject strip of land denominated as Cadastral Lot No. 954, remove its railway tracks thereon
and return its possession to the private respondents, the heirs of Magdaleno Valdez, Sr. It is also
hereby ordered to pay private respondents attorney's fees in the amount of P10,000.
SO ORDERED.

SECOND DIVISION
EMETERIA LIWAG, G. R. No. 189755
Petitioner,
Present:

CARPIO, J., Chairperson,

BRION,
- versus - PEREZ,
SERENO, and
REYES, JJ.

Promulgated:
HAPPY GLEN LOOP HOMEOWNERS
ASSOCIATION, INC., July 4, 2012
Respondent.

x--------------------------------------------------x

DECISION

SERENO, J.:

This Rule 45 Petition assails the Decision[1] and Resolution[2] of the Court of Appeals
(CA) in CA-GR SP No. 100454. The CA affirmed with modification the Decision[3] and
Order[4] of the Office of the President (O.P.) in OP Case No. 05-G-224, which had set aside the
Decision[5] of the Board of Commissioners of the Housing and Land Use Regulatory Board
(HLURB) in HLURB Case No. REM-A-041210-0261 and affirmed the Decision[6] of the
Housing and Land Use Arbiter in HLURB Case No. REM-030904-12609.

The controversy stems from a water facility in Happy Glen Loop Subdivision (the
Subdivision), which is situated in Deparo, Caloocan City.

Sometime in 1978, F.G.R. Sales, the original developer of Happy Glen Loop, obtained a loan
from Ernesto Marcelo (Marcelo), the owner of T.P. Marcelo Realty Corporation. To settle its
debt after failing to pay its obligation, F.G.R. Sales assigned to Marcelo all its rights over several
parcels of land in the Subdivision, as well as receivables from the lots already sold.[7]
 As the successor-in-interest of the original developer, Marcelo represented to subdivision
lot buyers, the National Housing Authority (NHA) and the Human Settlement Regulatory
Commission (HSRC) that a water facility was available in the Subdivision.[8]

For almost 30 years, the residents of the Subdivision relied on this facility as their only source of
water.[9] This fact was acknowledged by Marcelo and Hermogenes Liwag (Hermogenes),
petitioners late husband who was then the president of respondent Happy Glen Loop
Homeowners Association (Association).[10]

Sometime in September 1995, Marcelo sold Lot 11, Block No. 5 to Hermogenes. As a result,
Transfer Certificate of Title (TCT) No. C-350099

was issued to him. When Hermogenes died in 2003, petitioner Emeteria P. Liwag subsequently
wrote a letter to respondent Association, demanding the removal of the overhead water tank from
the subject parcel of land.[11]

Refusing to comply with petitioners demand, respondent Association filed before the HLURB an
action for specific performance; confirmation, maintenance and donation of water facilities;
annulment of sale; and cancellation of TCT No. 350099 against T.P. Marcelo Realty Corporation
(the owner and developer of the Subdivision), petitioner Emeteria, and the other surviving heirs
of Hermogenes.

After the parties submitted their respective position papers, Housing and Land Use Arbiter
Joselito Melchor (Arbiter Melchor) ruled in favor of the Association. He invalidated the transfer
of the parcel of land in favor of Hermogenes in a Decision dated 5 October 2004, the dispositive
portion of which reads:[12]

WHEREFORE, premises considered, judgment is hereby rendered as follows:

1. Confirming the existence of an easement for water system/facility or open

space on Lot 11, Block 5 of TCT No. C-350099 wherein the deep well and
overhead tank are situated,

2. Making the Temporary Restraining Order dated 01 April 2004 permanent so

as to allow the continuous use and maintenance of the said water facility, i.e.,
deep well and over head water tank, on the subject lot, by the complainants
 members and residents of the subject project, and restraining all the
respondents from committing the acts complained of and as described in the
complaint,

3. Declaring as void ab initio the deed of sale dated 26 February 2001,

involving Lot 11, Block 5 in favor of spouses Liwag, and TCT No. C-350099
in the name of same respondents without prejudice to complainants right to
institute a criminal action in coordination with the prosecuting arms of the
government against respondents Marcelo and Liwag, and furthermore, with
recourse by Liwag against T.P. and/or Marcelo to ask for replacement for
controverted lot with a new one within the subject project; and

4. Ordering respondents, jointly and severally, to pay complainant the amount

of ₱10,000.00 as attorneys fees and the amount of ₱20,000.00 as damages in
favor of the complainants members.

SO ORDERED.

On appeal before the HLURB Board of Commissioners, the Board found that Lot 11, Block 5
was not an open space. Moreover, it ruled that Marcelo had complied with the requirements of
Presidential Decree No. (P.D.) 1216 with the donation of 9,047 square meters of open space and
road lots. It further stated that there was no proof that Marcelo or the original subdivision owner
or developer had at any time represented that Lot 11, Block 5 was an open space. It therefore
concluded that the use of the lot as site of the water tank was merely tolerated.[13]

Respondent Association interposed an appeal to the OP, which set aside the Decision of
the HLURB Board of Commissioners and affirmed that of the Housing and Land Use Arbiter.[14]

The OP ruled that Lot 11, Block 5 was an open space, because it was the site of the water
installation of the Subdivision, per Marcelos official representation on file with the HLURB
National Capital Region Field Office. The OP further ruled that the open space required under
P.D. 957 excluded road lots; and, thus, the Subdivisions open space was still short of that
required by law. Finally, it ruled that petitioner Liwag was aware of the representations made by
Marcelo and his predecessors-in-interest, because he had acknowledged the existence of a water
installation system as per his Affidavit of 10 August 1982.[15]

Petitioner Liwag unsuccessfully moved for reconsideration,[16] then filed a Rule 43

Petition for Review before the CA.[17]
 The CA affirmed that the HLURB possessed jurisdiction to invalidate the sale of the
subject parcel of land to Hermogenes and to invalidate the issuance of TCT No. C-350099
pursuant thereto.[18] The appellate court agreed with the OP that an easement for water facility
existed on the subject parcel of land and formed part of the open space required to be reserved by
the subdivision developer under P.D. 957.[19] However, it ruled that Arbiter Melchor should not
have recommended the filing of a criminal action against petitioner, as she was not involved in
the development of the Subdivision or the sale of its lots to buyers.[20] The CA likewise deleted
the award of attorneys fees and damages in favor of respondent.[21]

Aggrieved, petitioner filed the instant Petition before this Court.

The Courts Ruling

We affirm the ruling of the appellate court.

I
The HLURB has exclusive jurisdiction
over the case at bar

The jurisdiction of the HLURB is outlined in P.D. 1344, Empowering the National
Housing Authority to Issue Writ of Execution in the Enforcement of its Decision under
Presidential Decree No. 957, viz:

Sec. 1. In the exercise of its functions to regulate real estate trade and business
and in addition to its powers provided for in Presidential Decree No. 957, the
National Housing Authority shall have the exclusive jurisdiction to hear and
decide cases of the following nature.

A. Unsound real estate business practices;

B. Claims involving refund and any other claims filed by subdivision lot
or condominium unit buyer against the project owner, developer, dealer,
broker or salesman; and
 C. Cases involving specific performance of contractual and statutory
obligations filed by buyers of subdivision lots or condominium units
against the owner, developer, broker or salesman.

When respondent Association filed its Complaint before the HLURB, it alleged that
Marcelos sale of Lot 11, Block 5 to Hermogenes was done in violation of P.D. 957 in the
following manner:

12. Through fraudulent acts and connivance of [T.P. and Ernesto Marcelo] and the
late Liwag and without the knowledge and consent of the complainants all in
violation of P.D. 957 and its implementing regulations, respondents T.P.
and Ernesto Marcelo transferred the same lot where the deep well is located
which is covered by TCT No. C-41785 in favor of spouses Hermogenes
Liwag and Emeteria Liwag to the great damage and prejudice of complainants x x
x.[22] (Empasis in the original)

We find that this statement sufficiently alleges that the subdivision owner and developer
fraudulently sold to Hermogenes the lot where the water facility was located. Subdivisions are
mandated to maintain and provide adequate water facilities for their communities.[23] Without a
provision for an alternative water source, the subdivision developers alleged sale of the lot where
the communitys sole water source was located constituted a violation of this obligation. Thus,
this allegation makes out a case for an unsound real estate business practice of the subdivision
owner and developer. Clearly, the case at bar falls within the exclusive jurisdiction of the
HLURB.

It is worthy to note that the HLURB has exclusive jurisdiction over complaints arising
from contracts between the subdivision developer and the lot buyer, or those aimed at
compelling the subdivision developer to comply with its contractual and statutory obligations to
make the Subdivision a better place to live in.[24] This interpretation is in line with one of P.D.
957s Whereas clauses, which provides:

WHEREAS, numerous reports reveal that many real estate subdivision

owners, developers, operators, and/or sellers have reneged on their representations
and obligations to provide and maintain properly subdivision roads, drainage,
sewerage, water systems, lighting systems, and other similar basic requirements,
thus endangering the health and safety of home and lot buyers. x x x.
 P.D. 957 was promulgated to closely regulate real estate subdivision and condominium
businesses.[25] Its provisions were intended to encompass all questions regarding subdivisions
and condominiums.[26] The decree aimed to provide for an appropriate government agency, the
HLURB, to which aggrieved parties in transactions involving subdivisions and condominiums
may take recourse.[27]

II
An easement for water facility exists on Lot 11, Block 5 of Happy Glen Loop
Subdivision

Easements or servitudes are encumbrances imposed upon an immovable for the benefit of
another immovable belonging to a different owner,[28] for the benefit of a community, [29] or for
the benefit of one or more persons to whom the encumbered estate does not belong.[30]

The law provides that easements may be continuous or discontinuous and apparent or
non-apparent. The pertinent provisions of the Civil Code are quoted below:

Art. 615. Easements may be continuous or discontinuous, apparent or non-

apparent.

Continuous easements are those the use of which is or may be incessant, without
the intervention of any act of man.

Discontinuous easements are those which are used at intervals and depend upon
the acts of man.

Apparent easements are those which are made known and are continually kept in
view by external signs that reveal the use and enjoyment of the same.

Non-apparent easements are those which show no external indication of their

existence.

In this case, the water facility is an encumbrance on Lot 11, Block 5 of the Subdivision
for the benefit of the community. It is continuous and apparent, because it is used incessantly
without human intervention, and because it is continually kept in view by the overhead water
tank, which reveals its use to the public.
 Contrary to petitioners contention that the existence of the water tank on Lot 11, Block 5
is merely tolerated, we find that the easement of water facility has been voluntarily established
either by Marcelo, the Subdivision owner and developer; or by F.G.R. Sales, his predecessor-in-
interest and the original developer of the Subdivision. For more than 30 years, the facility was
continuously used as the residents sole source of water.[31] The Civil Code provides that
continuous and apparent easements are acquired either by virtue of a title or by prescription of 10
years.[32] It is therefore clear that an easement of water facility has already been acquired through
prescription.

III
Lot 11, Block 5 of Happy Glen Loop Subdivision forms part of its open space

The term open space is defined in P.D. 1216 as an area reserved exclusively for parks,
playgrounds, recreational uses, schools, roads, places of worship, hospitals, health
centers,barangay centers and other similar facilities and amenities.[33]

The decree makes no specific mention of areas reserved for water facilities. Therefore,
we resort to statutory construction to determine whether these areas fall under other similar
facilities and amenities.

The basic statutory construction principle of ejusdem generis states that where a general
word or phrase follows an enumeration of particular and specific words of the same class, the
general word or phrase is to be construed to include or to be restricted to things akin to or
resembling, or of the same kind or class as, those specifically mentioned.[34]

Applying this principle to the afore-quoted Section 1 of P.D. 1216, we find that the
enumeration refers to areas reserved for the common welfare of the community. Thus, the phrase
other similar facilities and amenities should be interpreted in like manner.

Here, the water facility was undoubtedly established for the benefit of the community.
Water is a basic need in human settlements,[35] without which the community would not survive.
We therefore rule that, based on the principle of ejusdem generis and taking into consideration
the intention of the law to create and maintain a healthy environment in human
settlements,[36] the location of the water facility in the Subdivision must form part of the area
reserved for open space.
 IV
The subject parcel of land is beyond the commerce of man and its sale is
prohibited under the law

The law expressly provides that open spaces in subdivisions are reserved for public use
and are beyond the commerce of man.[37] As such, these open spaces are not susceptible of
private ownership and appropriation. We therefore rule that the sale of the subject parcel of land
by the subdivision owner or developer to petitioners late husband was contrary to law. Hence, we
find no reversible error in the appellate courts Decision upholding the HLURB Arbiters
annulment of the Deed of Sale.

Petitioner attempts to argue in favor of the validity of the sale of the subject parcel of
land by invoking the principle of indefeasibility of title and by arguing that this action constitutes
a collateral attack against her title, an act proscribed by the Property Registration Decree.

Petitioner is mistaken on both counts.

First, the rule that a collateral attack against a Torrens title is prohibited by law[38] finds
no application to this case.

There is an attack on the title when the object of an action is to nullify a Torrens title,
thus challenging the judgment or proceeding pursuant to which the title was decreed.[39] In the
present case, this action is not an attack against the validity of the Torrens title, because it does
not question the judgment or proceeding that led to the issuance of the title. Rather, this action
questions the validity of the transfer of land from Marcelo to petitioners husband. As there is no
attack direct or collateral against the title, petitioners argument holds no water.

Second, the principle of indefeasibility of title is not absolute, and there are well-defined
exceptions to this rule.[40] In Aqualab Philippines, Inc. v. Heirs of Pagobo,[41]we ruled that this
defense does not extend to a transferee who takes the title with knowledge of a defect in that of
the transferees predecessor-in-interest.

In this case, Spouses Liwag were aware of the existence of the easement of water facility
when Marcelo sold Lot 11, Block 5 to them. Hermogenes even executed an Affidavit dated 10
August 1982 attesting to the sufficiency of the water supply coming from an electrically operated
water pump in the Subdivision.[42] It is undisputed that the water facility in question was their
only water source during that time. As residents of the Subdivision, they had even benefited for
almost 30 years from its existence. Therefore, petitioner cannot be shielded by the principle of
indefeasibility and conclusiveness of title, as she was not an innocent purchaser in good faith and
for value.

From the discussion above, we therefore conclude that the appellate court committed no
reversible error in the assailed Decision and accordingly affirm it in toto.

WHEREFORE, premises considered, the instant Petition for Review is DENIED, and
the assailed Decision and Resolution of the Court of Appeals in CA-GR SP No. 100454 are
hereby AFFIRMED.

SO ORDERED.

G.R. No. L-48384 October 11, 1943

SEVERO AMOR, petitioner,

vs.
GABRIEL FLORENTINO, ET AL., respondents.

BOCOBO, J.:

The petitioner asks for the setting aside of the decision of the Court of Appeals which affirmed
the judgment of the Court of First Instance of Ilocos Sur. The trial court declared that an
easement of light and view had been established in favor of the property of the plaintiffs
(respondents herein) and ordered the petitioner to remove within 30 days all obstruction to the
windows of respondents' house, to abstain from constructing within three meters from the
boundary line, and to pay P200.00 damages.
It appears that over 50 years ago, Maria Florentino owned a house and a camarin or warehouse
in Vigan, Ilocos Sur. The house had and still has, on the north side, three windows on the upper
story, and a fourth one on the ground floor. Through these windows the house receives light and
air from the lot where the camarin stands. On September 6, 1885, Maria Florentino made a will,
devising the house and the land on which it is situated to Gabriel Florentino, one of the
respondents herein, and to Jose Florentino, father of the other respondents. In said will, the
testatrix also devised the warehouse and the lot where it is situated to Maria Encarnancion
Florentino. Upon the death of the testatrix in 1882, nothing was said or done by the devisees in
regard to the windows in question. On July 14, 1911, Maria Encarnacion Florentino sold her lot
and the warehouse thereon to the petitioner, Severo Amor, the deed of sale stating that the
vendor had inherited the property from her aunt, Maria Florentino. In January, 1938, petitioner
destroyed the old warehouse and started to build instead a two-story house. On March 1st of that
year, respondents filed an action to prohibit petitioner herein from building higher than the
original structure and from executing any work which would shut off the light and air that had
for many years been received through the four windows referred to. The Court of First Instance
found on the 15th of the same month that the construction of the new house had almost been
completed, so the court denied the writ of preliminary injunction.

I.

Inasmuch as Maria Florentino died in 1892, according to the finding of fact of the Court of
Appeals, Articles 541 of the Civil Code governs this case. The facts above recited created the
very situation provided for in said article, which reads as follows:

(Spanish - page 406)

Art. 551. La existencia de un signo aparente de servidumbre entre dos fincas, establecido
por el propietario de ambas, se considerara, si se enjenare una, como titulo para que la
servidumbre continue activa y pasivamente, a no ser que, al tiempo de separarse la
propiedad de las dos fincas, se exprese lo contrario en el titulo de enajenacion de
cualquiera de ellas, o se haga desaparecer acquel signo antes del otorgamiento de la
escritura.

Art. 541. The existence of an apparent sign of easement between two estates, established
by the proprietor of both, shall be considered, if one of them is alienated, as a title so that
the easement will continue actively and passively, unless at the time the ownership of the
two estates is divided, the contrary is stated in the deed of alienation of either of them, or
the sign is made to disappear before the instrument is executed.

When the original owner, Maria Florentino, died in 1892, the ownership of the house and its lot
passed to respondents while the dominion over the camarin and its lot was vested in Maria
Encarnancion Florentino, from whom said property was later bought by petitioner. At the time
the devisees took possession of their respective portions of the inheritance, neither the
respondents nor Maria Encarnacion Florentino said or did anything with respect to the four
windows of the respondents' house. The respondents did not renounce the use of the windows,
either by stipulation or by actually closing them permanently. On the contrary, they exercised the
right of receiving light and air through those windows. Neither did the petitioner's predecessor in
interest, Maria Encarnacion Florentino, object to them or demand that they be close. The
easement was therefore created from the time of the death of the original owner of both estates,
so when petitioner bought the land and the camarin thereon from Maria Encarnancion
Florentino, the burden of this easement continued on the real property so acquired because
according to Article 534, "easements are inseparable from the estate to which they actively or
passively pertain."

An incidental question that arises at this juncture is whether or not Article 541 applies to a
division of property by succession. The affirmative has been authoritatively declared. (Manresa,
"Comentarios al Codigo Civil Espanol," vol. 4, p. 619; Sentence of the Supreme Tribunal of
Spain, November 17, 1911).

Petitioner assigns as an error of the Court of Appeals the supposed failure of that tribunal to pass
upon his motion to consider certain allegedly new evidence to prove that Maria Florentino, the
original owner of the properties, died in 1885. Petitioner alleges that Maria Florentino died in
1885 and, therefore, the Law of the Partidas should be followed in this case and not the Civil
Code. However, the petitioner's contention cannot be upheld without rejecting the finding of fact
made by the Court of Appeals, as follows:

Hebiendo pasado la propiedad de la casa de manposteria a los demandantes, a la muerte

de Maria Florentino, ocurrida en 1892, (el demandado sostiene que fue con anterioridad a
1889) no hay duda ninguna de que los demandantes adquirieron la servidumbre mediante
titulo y por prescripcion (Art. 537).

We cannot review the above finding of fact by the Court of Appeals that Maria Florentino die in
1892. The evidentiary fact from which the Court of Appeals drew the above finding is that
Gregorio Florentino during the trial in 1938 testified to facts of his own personal knowledge, and
he was then 58 years old, having been born in 1880. If Maria Florentino, as claimed by
petitioner, had died in 1885, Gregorio Florentino would have been only 5 years of age at the time
of Maria Florentino's death. The Court of Appeals therefore concluded that Maria Florentino
died in 1892, when Gregorio Florentino was ten 12 years of age. We do not believe we can
disturb the finding of the Court of Appeals, because its deductions as to the date of Maria
Florentino's death may be right or wrong, according to one's own reasoning. In other words, its
conclusion of fact from Gregorio Florentino's testimony is not necessarily and unavoidably
mistaken. On the contrary, it is reasonable to believe that a person 58 years old cannot remember
facts of inheritance as far back as when he was only 5 years of age.

Furthermore, the burial certificate and the gravestone, whose copy and photograph, respectively,
were offered by petitioner in a motion for new trial filed in the Court of Appeals, could have
been discovered by petitioner before the trial in the Court of First Instance by the exercise of due
diligence. There is no reason why this evidence could be found when the case was already before
the Court of Appeals, but could not be found before the trial in the Court of First Instance. It was
easy, before such trial, for the petitioner to inquire from the relatives of Maria Florentino as to
when she died. And having ascertained the date, it was also easy to secure the burial certificate
and a photograph of the gravestone, supposing them to be really of Maria Florentino. The fact is,
petitioner never tried to find out such date and never tried to secure the additional evidence till
his counsel raised this issue for the first time before the Court of Appeals. That Court was
therefore died in 1885. (Sec. 497, Act. 190). The petitioner's statement in his brief (p. 11) that the
Court of Appeals neither passed upon his motion nor took the burial certificate and the
gravestone into account is not true, because the very words of the Court of Appeals clearly show
that the Court had in mind said motion and evidence when the decision was signed. The decision
said: "a la muerte de Maria Florentino ocurrida en 1892 (el demandado sostiene que fue con
anteriodad a 1889)" (Emphasis supplied).

Lastly, the issue as to the date of Maria Florentino's death cannot be raised for the first time on
appeal. Petitioner did not in the trial court allege or prove this point. He presented this issue for
the first time in the Court of Appeals. (Sec. 497, Act. 190).

Let us now consider Article 541 more closely in its application to the easement of light and view
and to the easement not to build higher (altius non tollendi). These two easements necessarily go
together because an easement of light and view requires that the owner of the servient estate shall
not build to a height that will obstruct the window. They are, as it were, the two sides of the same
coin. While an easement of light and view is positive, that of altius non tollendi is negative.
Clemente de Diego states that when article 538 speaks of the time for the commencement of
prescription for negative easements, "it refers to those negative easements which are the result
and consequence of others that are positive, such as the easement not to build higher, or not to
construct, which is indispensable to the easement of light." (Se refiere a aquellas servidumbres
negativas que son sucuela y consecuencia de otras positivaas, como la de no levantar mas alto, o
de no edificar, que es imprescindible para la servidumbre de luces.") ("Curso Elemental de
Derecho Civil Españos, Comun y Foral," vol. 3, p. 450). This relation of these two easements
should be borned in mind in connection with the following discussion of (1) the modes of
establishing and acquiring easements; (2) the meaning of article 541; and (3) the doctrine in the
case of Cortes vs. Yu-Tibo.

First, as to the modes of establishing and acquiring easements. According to Article 536,
easements are established by law or by will of th owners. Acquisition of easements is first by
title or its equivalent and seconly by prescription. What acts take the place of title? They are
mentioned in Articles 540 and 541, namely, (1) a deed of recognition by the owner of the
servient estate; (2) a final judgment; and (3) an apparent sign between two estates, established by
the owner of both, which is the case of article 541. Sanchez Roman calls cuh apparent sign under
article 541 "supletoria del titulo constitutivo de la servidumbre (Derecho Civil, vol. 3, p. 656).
The same jurist says in regard to the ways of constituting easements:

(Spanish word - page 410)

In the Sentence of the Supreme Tribunal of Spain dated November 7, 1911, it was held that
under article 541 of the Civil Code, the visible and permanent sign of an easement "is the title
that characterizes its existence" ("es el titulo caracteristico de su existencia.")

It will thus be seen that under article 541 the existence of the apparent sign in the instance case,
to wit, the four windows under consideration, had for all legal purposes the same character and
effect as a title of acquisition of the easement of light and view by the respondents upon the
death of the original owner, Maria Florentino. Upon the establishment of that easement of light
and view, the con-comitant and concurrent easement of altius non tollendi was also constituted,
the heir of the camarin and its lot, Maria Encarnacion Florention, not having objected to the
existence of the windows. The theory of article 541, of making the existence of the apparent sign
equivalent to a title, when nothing to the contrary is said or done by the two owners, is sound and
correct, because as it happens in this case, there is an implied contract between them that the
easements in question should be constituted.

Analyzing article 541 further, it sees that its wording is not quite felicitous when it says that the
easement should continue. Sound juridical thinking rejects such an idea because, properly
speaking, the easement is not created till the division of the property, inasmuch as a predial or
real easement is one of the rights in another's property, or jura in re aliena and nobdy can have
an easement over his own property, nimini sua res servit. In the instant case, therefore, when the
original owner, Maria Florentino, opened the windows which received light and air from another
lot belonging to her, she was merely exercising her right of dominion. Consequently, the moment
of the constitution of the easement of light and view, together with that of altius non tollendi, as
the time of the death of the original owner of both properties. At that point, the requisite that
there must be two proprietors — one of the dominant estate and another of the servient estate —
was fulfilled. (Article 530, Civil Code.)

Upon the question of the time when the easement in article 541 is created, Manresa presents a
highly interesting theory, whether one may agree with it or not. He says:

La servidumbre encubierta, digamoslo asi, por la unidad de dueño, se hace ostensible, se

revela con toda su verdadera importancia al separarse la propiedad de las fincas o
porciones de finca que respectivamente deben representar el papel de predios sirviente y
dominante.

The concealed easement, as it were by the oneness of the owner, becomes visible, and is
revealed in all its importance when the ownership of the estate or portions of the estate
which respectively should play the role of servient and dominant estates is divided.

Such a view cannot be fully accepted because before the division of the estate there is only a
service in fact but not an easement in the strictly juridical sense between the two buildings or
parcels of land.

We come now to the case of Cortes vs. Yu-Tibo, 2 Phil., 24 decided in 1903, Mr. Justice, later
Chief Justice, Mapa speaking for the Court. Counsel for petitioner contends that the doctrine in
that case is controlling in the present one. If the essential facts of the two cases were the same,
there is not doubt but that the early opinion would be decisive inasmuch as it is by its cogent
reasoning one of the landmarks in Philippine jurisprudence. However, the facts and theories of
both cases are fundamentally dissimilar. What is more, as will presently be explained, that every
decision makes a distinction between that case and the situation provided for in article 541. In
that case, Cortes sought an injunction to restrain Yu-Tibo from continuing the construction of
certain buildings. Cortes' wife owned a house in Manila which had windows that had been in
existence since 1843. The defendant, who occupied a house on the adjoining lot, commenced to
raise the roof of the house in such a manner that one-half of the windows in the house owned by
plaintiff's wife had been covered. This Court, in affirming the judgment of the lower court which
dissolved the preliminary injunction, held that the opening of windows through one's own wall
does not in itself create an easement, because it is merely tolerated by the owner of the adjoining
lot, who may freely build upon his land to the extent of covering the windows, under article 581,
and that his kind of easement is negative which can be acquired through prescription by counting
the time from the date when the owner of the dominant estate in a formal manner forbids the
owner of the servient estate from obstructing the light, which had not been done by the plaintiff
in this case.

It will thus be clear that one of the essential differences between that case and the present is that
while the Yu-Tibo case involved acquisition of easement by prescription, in the present action
the question is the acquisition of easement by title, or its equivalent, under article 541. Therefore,
while a formal prohibition was necessary in the former case in order to start the period of
prescription, no such act is necessary here because the existence of the apparent sign when Maria
Florentino died was sufficient title in itself to created the easement.

Another difference is that while in the Yu-Tibo case, there were tow different owners of two
separate houses from the beginning, in the present case there was only one original owner of the
two structures. Each proprietor in the Yu-Tibo case was merely exercising his rights of
dominion, while in the instant case, the existence of the apparent sign upon the death of the
original owner ipso facto burdened the land belonging to petitioner's predecessor in interest, with
the easements of light and view and altius non tollendi in virtue of article 541.

The very decision in Cortes vs. Yu-Tibo distinguishes that case from the situation foreseen in
article 541. Said this Court in that case:

It is true that the Supreme Court of Spain, in its decisions of February 7 and May 5, 1986,
has classified as positive easements of light which were the object of the suits in which
these decisions were rendered in cassation, and from these it might be believed at first
glance, that the former holdings of the supreme court upon this subject had been
overruled. But this is not so, as a matter of fact, inasmuch as there is no conflict between
these decisions and the former decisions above cited.

In the first of the suits referred to, the question turned upon two houses which had
formerly belonged to the same owner, who established a service of light on one of them
for the benefit of the other. These properties were subsequently conveyed to two different
persons, but at the time of the separation of the property noting was said as to the
discontinuance of the easement, nor were the windows which constituted the visible sign
thereof removed. The new owner of the house subject to the easement endeavored to free
it from the incumbrance, notwithstanding the fact that the easement had been in existence
for thirty-five years, and alleged that the owner of the dominant estate had not performed
any act of opposition which might serve as a starting point for the acquisition of a
prescriptive title. The supreme court, in deciding this case, on the 7th of February, 1896,
held that the easement in this particular case was positive, because it consisted in the
 active enjoyment of the light. This doctrine is doubtless based upon article 541 of the
Code, which is of the following tenor: "The existence of apparent sign of an easement
between two tenements, established by the owner of both of them, shall be considered,
should one be sold, as a title for the active and passive continuance of the easement,
unless, at the time of the division of the ownership of both tenements, the contrary should
be expressed in the deed of conveyance of either of them, or such sign is taken away
before the execution of such deed.'

The word "active" used in the decision quoted in classifying the particular enjoyment of
light referred to therein, presuposes on the part of the owner of the dominant estate a right
to such enjoyment arising, in the particular cases passed upon by that decision, from the
voluntary act of the original owner of the two houses, by which he imposed upon one of
them an easement for the benefit of the other. It is well known that easements are
established, among other cases, by the will of the owners. (Article 536 of the Code.) It
was an act which was, in fact, respected and acquiesced in by the new owner of the
servient estate, since he purchased it without making any stipulation against the easement
existing thereon, but, on the contrary, acquiesced in the continuance of the apparent sign
thereof. As is stated in the decision itself, "It is a principle of law that upon a division of a
tenement among various persons — in the absence of any mention in the contract of a
mode of enjoyment different from that to which the former owner was accustomed —
such easements as may be necessary for the continuation of such enjoyment are
understood to subsist." It will be seen, then, that the phrase "active enjoyment" involves
an idea directly opposed to the enjoyment which is the result of a mere tolerance on the
part of the adjacent owner, and which, as it is not based upon an absolute, enforceable
right, may be considered as of a merely passive character. (2 Phil., 29-31).

Finally, the Yu-Tibo case was decided upon the theory if the negative easement of altius non
tollendi, while the instant case is predicated on the idea of the positive easement of light and
view under article 541. On this point, suffice it to quote from Manresa's work. He says:

Que en las servidumbres cuyo aspecto positivo aparece enlazado al negativo, asi como al
efecto de la precripcion ha de considerarse prefente el aspecto negativo, al efecto del art.
541 basta atender al aspecto positivo, y asi la exitencia de huecos o ventanas entre dos
fincas que fueron de un mismo dueño es bastante para considerar establecidas, al
separarse la propiedad de esas fincas, las servidumbres de luces o vista, y con ellas las de
no edificar on no levantar mas ato, porque sin estas no prodrian existir aquellas.

That in easements whose positive aspect appears tied up with the negative aspect, just as
for the purposes of prescription the negative aspect has to be considered preferential, so
for the purposes of Article 541 it is sufficient to view the positive aspect, and therefore
the existence of openings or windows between two estates which belonged to the same
owner is sufficient to establish, when the ownership of these estates is divided, the
easement of light or view, and with them the easements of altius non tollendi because
without the latter, the former cannot exists.
There are several decisions of the Supreme Court of Spain which have applied Article 541. Some
of them are those of February 7, 1986; February 6, 1904; May 29, 1911; and November 17,
1911.

The sentence of February 7, 1896, dealt with windows established in one house by the original of
two houses. When he died, the two houses were adjudicated to different heirs. The court held
that there was an easement of light.

Considerando que, segun lo establecido por este Supremo Tribunal en repetidas

sentencias, y consignado, muy principalmente, en la dictada en 21 de Octubre de 1892, lo
preceptuado en la ley 14, titulo 31 de la Partida 3.a, al tratar del mode de constituirse las
servidumbres, no esta en oposicion con el pricipio mediante el que, dividida una finca
entre diversas personas, sin que en el contrato se mencione cosa alguna acerca de un
modo de aprovenchamiento distinto del que usaba el primitivo dueño de ella, se entieden
subsistentes las servidumbres ncesarias para que aquel pueda tener lugar.

Considerando que ese principio y jurisprudencia han obtenido nueva sancion, puesto que
a ellos obedece el concepto claro y concreto del articulo 541 del Codigo Civil, aplicable
al caso, . . . (Ruiz, Codigo Civil, Vol. V, pp. 349-350).

Considering that, according to what has been established by this Supreme Tribunal in
repeated sentences, and principally declared in the sentence promulgated on October 21,
1892, the provision of law 14, title 31 of Partida 3 in treating of the mode of constituting
easements, is not contrary to the principle that when an estate is divided between
different persons, and in the contract nothing is said out a mode of enjoyment different
from that used by the original owner thereof, the necessary easements for said mode of
enjoyment are understood to be subsisting;

Considering that such principle and jurisprudence have obtained a new santion, for due to
them is the clear and concrete concept of Article 541 applicable to the case . . . .

Therefore, considering that Maria Florentino died in 1892, according to a finding of fact by the
Court of Appeals, there is an easement of light and view in favor of the respondents' property
under article 541 of the Civil Code.

But granting, arguendo, that Maria Florentino died in 1885, as contended by petitioner,
nevertheless the same principle enunciated in article 541 of the Spanish Civil Code was already
an integral part of the Spanish law prior to the Civil Code, the easement in question would also
have to be upheld. That the law before the Civil Code was the same as at present is shown by the
following:

1. Under Law 14, Title 31, Partida 3, this easement was constituted by an implied
contract among the heirs of Maria Florentino.

2. Granting for the sake of argument that this easement was not created through an
implied contract according to Law 14, Title 31, Partida 3, yet that provision of
 the Partidas was not inconsistent with the principle in question, so that there was a gap in
the Partidas which the Supreme Court of Spain filled up from the Roman Law and
modern civil codes, by recognizing the existence of this kind of easement.

3. Law 17, Title 31, Partida 3 regarding the extinguishment of an easement did not
prohibit the easement in the instant case, Therefore, we should adhere to the decisions of
the Supreme Court of Spain which maintain this easement under the Spanish law prior to
Civil Code.

4. Other considerations show that the principle of apparent sign as announced by the
Supreme Tribunal of Spain is not incompatible with the Partidas.

First, as to the implied contract. Law 14, Title 31, Partida 3 provided that easements were
acquired by contract, by will and by prescription. Upon the death of the original owner, Maria
Florentino, the four windows under consideration already existed and were visible. One of the
heirs, Maria Encarnacion Florentino, to whom the camarin and its lot had been devised, having
failed to object to the same, knowingly consented to their continuance. Nor did Gabriel and Jose
Florentino (devisees of the house that had the four windows) permanently close the windows.
There was consequently an implied agreement between her and the devisees of the house with
the four windows to the effect that the service of these windows would continue, thus creating
the easement of light and view and the concomitant easement of altius non tollendi. Hence, the
easement in question was acquired by Gabriel and Jose Florentino through contract under Law
14, Title 31, Partida 3.

Secondly, with respect to the doctrine of the Supreme Tribunal of Spain. In a series of decisions
of that court, it was held that Law 14, Title 31, Partida 3 was not opposed to the easement under
review. One of those decisions is that of November 7, 1883, which held:

(Spanish word - page 418)

Other decisions of the Supreme Tribunal of Spain to the same effect are those of September 14,
1867 and June 7, 1883. (See Scaevola, "Codigo Civil Comentado" vol. 10, pp. 272-274.)

So that, granting for the sake of argument, that the easement was not created through an implied
contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas, according to
decisions of the Supreme Tribunal of Spain, was not inconsistent with the principle in question.
The problem in this case not having been foreseen in Law 14, Title 31, Partida 3, there was a gap
in the old legislation, which the Supreme Tribunal of Spain filled up from the Roman Law and
from modern Civil Codes.

The principle in question was deeply rooted in the Roman Law. It is from the Roman Law that
the Supreme Tribunal of Spain obtained this principle, in order to solve a question not provided
for by the Partidas, whose main source was also the Roman law. In other words, the Partidas
being silent on the point under consideration, the Supreme Tribunal of Spain resorted to the
authoritative voice of the Roman law from which the Law of the Partidas had derived its
inspiration.
The following quotations from the Spanish version the Roman Law Digest will prove the
assertions just made:

(Spanish word - page 419)

Among the modern civil codes which contain the rule in question are those of France, Belgium,
Holland, Portugal, Mexico and Chile. It is presumed that the Supreme Tribunal of Spain had also
in mind at least one of them when it decided cases involving this principle before the
promulgation of the Spanish Civil Code.

When, therefore, Maria Florentino died (supposing she died in 1885), the status of the Spanish
law was in favor of the doctrine in question. We cannot change it because it was in full force at
the time of the alleged date of Maria Florentino's death. We cannot reject a doctrine established
by the Spanish Supreme Tribunal as an integral part of the Spanish law before the promulgation
of the Civil Code in 1889. And we know that jurisprudence — in the sense of court decisions —
is one of the sources of the law.

Thirdly, concerning Law 17, Title 31, Partida 3. It is true that the eminent jurist, Manresa, is of
the opinion that "el precepto del art. 541 no solo no existia en nuestra antigua legislacion, sino
que podia deducirse claramente lo contrario de la ley 17, tit. 31, Partida 3.a . . . ." However, a
careful reading of this provision of the Partidas reveals that the same did not militate against the
creation of an easement by an apparent sign if nothing was said or done when the property is
divided. Law 17, Title 31, Partida 3, read as follows:

(spanish word - page 420-21)

This law regulates the extinguishment of an easement by merger of the dominant and the servient
estates. Speaking of this law of the Partidas and of article 546, par. 1, of the Civil Code, both of
which refer to merger of the two estates, Acaevola says: (p. 319, vol. 10)

But there is a world of difference between extinguishment of an easement by merger of the two
estates and the constitution of an easement by an apparent sign when nothing is done or said
upon the division of the property. Law 17, title 31, Partida 3, having in mind only the modes
of extinguishment, the legislator did not intend to cover the question involved in the present case,
which refers to the creation of an easement.

What, then, are the differences between the extinguishment of an easement by merger under Law
17, title 31, Partida 3, and the constitution of an easement in this case, both before and after the
Civil Code went into effect?

First, in merger under Law 17, Title 31, Partida 3, there were from the very beginning, already
two separate estates, the dominant and the servient estates, whereas in this case, there was only
one estate.

Second, in merger under said Law 17, there were already two owners, whereas in this case, there
was only one owner, Maria Florentino.
Third, in merger under Law 17, there was already an easement in the legal sense, whereas in the
instant case, there was only a service between the two lots, (while Maria Florentino was living)
but there was as yet no easement from the juridical viewpoint.

4. Other considerations prove that the principle of apparent sign as enunciated by the Supreme
Tribunal of Spain is not inconsistent with the Partidas. These considerations are:

1. Article 537, Civil Code, provides that continuous and apparent easements are acquired
by title, or by prescription. However, side by side with that article is article 541 which
contemplates an easement upon division of an estate, unless a stipulation to the contrary
is agreed upon, or the sign is destroyed. Bearing in mind that "title" includes a contract,
our view is that if Article 537 and 541 of the Civil Code can stand together, there is no
reason why Law 14, title 31, Partida 3, whereby easements are acquired by contract, by
will and by prescription should be considered incompatible with the easement under
review.

2. Article 546, par. 1 of the Civil Code ordains that by merger of the two estates in the
same owner an easement is extinguished. Yet, coexistent with such provision is that of
article 541 regarding the apparent sign which is a title for the easement. If these two
principles can and do stand together under the Civil Code, the doctrine laid down by the
Supreme Tribunal of Spain — before the Civil Code was in force — about the effect of
an apparent sign can also stand together with Law 17, title 31, Partida 3 declaring the
extinguishment of an easement by merger.

3. Under article 546, par. 1 of the Civil Code, merger extinguishes an easement. So in
case the estate is again divided by purchase, etc., the easement is not, under the Civil
Code automatically revived. That is the same provision of law 17, title 31, Partida 3,
which does not reject the principle in question, just as article 546, par. 1 of the Civil Code
does not reject article 541 about an apparent sign.

III.

Aside from the foregoing reasons that support the easement under consideration, the same has
been acquired by respondents through prescriptions.

The easement involved in this case is of two aspects: light and view and altius non tollendi.
These two aspects necessarily go together because an easement of light and view prevents the
owner of the sevient estate from building to a height that will obstruct the windows. This court
in Cortes vs. Yu-Tibo, supra, held that the easement concerned when there is an apparent sign
established by the owner of two estates is positive. Manresa is of the same opinion, supra. This
being so, and inasmuch as the original heirs of Maria Florentino succeeded to these two estates
either in 1885 or in 1892 and as petitioner bought one of the lots in 1911, the prescriptive period
under any legislation that may be applied — the Partidas, Civil Code or Code of Civil Procedure
— has elapsed without the necessity of formal prohibition on the owner of the servient estate.
The respondent's action was brought in 1938. The persons who were present, and 20 years
between absentees. (4 Manresa, 605). According to article 537 of the Civil Code, continous and
apparent easements may be acquired by prescription for 20 years. Under sections 40 and 41 of
the Code of Civil Procedure, the period is 10 years.

IV.

The petitioner maintains that he is an innocent purchaser for value of the lot
and camarin thereon, and that he was not bound to know the existence of the easement because
the mere opening of windows on one's own wall does not ipso facto create an easement of light.
Such contention might perhaps be in point if the estates had not originally belonged to the same
owner, who opened the windows. But the petitioner was in duty bound to inquire into the
significance of the windows, particularly because in the deed of sale, it was stated that the seller
had inherited the property from her aunt, Maria Florentino. Referring to the Sentence of the
Supreme Court of Spain dated February 7, 1896, which applied Article 541, this Court in the
case of Cortes vs. Yu-Tibo already cited, said that the establishment of the easement "was an act
which was in fact respected and acquiesced in by the new owner of the servient estate, since he
purchased it without making any stipulation against the easement existing thereon, but on the
contrary acquiesced in the new owner of the servient estate, since he purchased it without
making any stipulation against the easement existing thereon, but on the contrary, acquiesced in
the continuance of the apparent sign thereof." (p. 31). Moreover, it has been held that purchasers
of lands burdened with apparent easements do not enjoy the rights of third persons who acquire
property, though the burden it not recorded. (Sentence of the Supreme Tribunal of Spain, April 5,
1898).

V.

Let us now discuss the case from the standpoint of justice and public policy.

First. — When Maria Encarnacion Florentino, as one of the devisees, accepted the camarin and
the lot, she could not in fairness receive the benefit without assuming the burden of the legacy.
That burden consisted of the service in fact during the lifetime of the original owner, which
service became a true easement upon her death.

Second. — According to Scaevola, the reason for the principle in question is that there is a tacit
contract. He says in vol. 10, p. 277:

(spanish word - page 424)

Aun hay mas: hay, en nuestro entender, no solo presuncion de voluntad del enajenante, o
sea del dueño de las fincas que estuvieren confundidas, sino convencion, siquiera sea
tacita, entre el vendedor y al adquirente de la finca vendida. Puesto que pudiendo
estipular la no existencia de la servidumbre, nada dicen o nada hacen, fuerza es presumir
que el segundo (comprador) acepta el estado jurisdico creado por el primero (vendedor).

It is not just to allow Maria Encarnacion Florentino or her successor in interest to repudiate her
own undertaking, implied, it is true, but binding nevertheless. This easement is therefore a
burden which Maria Encarnacion Florentino and her successor in interest willingly accepted.
They cannot now murmur against any inconvenience consequent upon their own agreement.

Third. During the construction of the new house by the petitioner, the respondents filed an action
to stop the work. But petitioner continued the construction, so that when the Court of First
Instance was ready to pass upon the preliminary injunction, the work had almost been finished.
Petitioner, therefore, cannot complain if he is now ordered to tear down part of the new structure
so as not to shut off the light from respondents' windows.

Fourth. When petitioner bought this lot from the original coheir, Maria Encarnacion Florentino,
the windows on respondents' house were visible. It was petitioner's duty to inquire into the
significance of those windows. Having failed to do so, he cannot now question the easement
against the property which he purchased.

(spanish word - page 425)

This idea of easements can never become obsolete in the face of modern progress. On the
contrary, its need is all the more pressing and evident, considering that this mutual assistance and
giving way among estates is demanded by the complexities of modern conditions, such as those
which obtain in large cities where buildings, large and small, are so close together.

VI.

Recapitulating, we believe the easement of light and view has been established in favor of the
property of respondents, for these reasons:

1. Maria Florentino having died in 1892, according to a finding of fact of the Court of
Appeals, which we cannot review, Article 541 of the Civil Code is applicable to this case.

2. Granting, arguendo, that Maria Florentino died in 1885, nevertheless that same
principle embodied in article 541 of the Civil Code was already an integral part of the
Spanish law before the promulgation of the Civil Code in 1889, and therefore, even if the
instant case should be governed by the Spanish law prior to the Civil Code, the easement
in question would also have to be upheld.

3. The easement under review has been acquired by respondents through prescription.

4. The petitioner was not an innocent purchaser, as he was in duty bound to inquire into
the significance of the windows.

5. Justice and public policy are on the side of the respondents.

Wherefore, the judgment appealed from should be and is hereby affirmed, with costs against the
petitioner. So ordered.

FIRST DIVISION
G.R. No. 157285 February 16, 2007

WOODRIDGE SCHOOL, INC., and MIGUELA JIMENEZ-JAVIER, Petitioners,

vs.
ARB CONSTRUCTION CO., INC., Respondent.

DECISION

CORONA, J.:

Petitioners Woodridge School, Inc. (Woodridge) and Miguela Jimenez-Javier come to us

assailing the decision1dated September 30, 2002 and resolution2 dated February 14, 2003 of the
Court of Appeals in CA-G.R. CV No. 515333 which, in turn, modified the ruling of the Regional
Trial Court (RTC) of Imus, Cavite awarding ₱500,000 to respondent ARB Construction Co., Inc.
(ARB) as reasonable indemnity for the use of ARB's road lot.3

Woodridge is the usufructuary of a parcel of land covered by Transfer Certificate of Title (TCT)
No. T-363902 in the name of spouses Ernesto T. Matugas and Filomena U. Matugas. Its co-
petitioner, Miguela Jimenez-Javier, is the registered owner of the adjacent lot under TCT No. T-
330688.

On the other hand, ARB is the owner and developer of Soldiers Hills Subdivision in Bacoor,
Cavite, which is composed of four phases. Phase I of the subdivision was already accessible
from the Marcos Alvarez Avenue. To provide the same accessibility to the residents of Phase II
of the subdivision, ARB constructed the disputed road to link the two phases.

As found by the appellate court, petitioners' properties sit right in the middle of several estates:
Phase I of Soldiers Hills Subdivision in the north, a creek in the east and Green Valley
Subdivision the farther east, a road within Soldiers Hills Subdivision IV which leads to the
Marcos Alvarez Avenue in the west and Phase III of Soldiers Hills Subdivision in the south.

Initially, petitioners offered to pay ARB ₱50,000 as indemnity for the use of the road. Adamant,
ARB refused the offer and fenced the perimeter of the road fronting the properties of petitioners.
By doing so, ARB effectively cut off petitioners' access to and from the public highway.

After failing to settle the matter amicably, petitioners jointly filed a complaint4 in the RTC of
Imus, Cavite to enjoin ARB from depriving them of the use of the disputed subdivision road and
to seek a compulsory right of way after payment of proper indemnity. On November 24, 1995,
the trial court rendered its decision in favor of petitioners:

The reasons why this case is not one for a right of way as an easement are not difficult to discern.

The questioned road is part and parcel of the road network of Soldiers Hills IV, Phase II. This
road was constructed pursuant to the approved subdivision plan of Soldiers Hills IV, Phase II. As
such, the road has already been withdrawn from the commerce of men as the ownership of which
was automatically vested in the government without need of any compensation, although it is
still registered in the name of the [ARB], the moment the subdivision plan was approved. While
it is not yet donated to the government [,] [it] is of no moment for donating this road to the
government is a mere formality.

Differently stated, the government automatically becomes the owner of the subdivisions' roads
the moment the subdivision plan is approved. From that time on, the roads are withdrawn from
the commerce of men even [if] the titles are still registered in the name of the subdivision owners
and the roads are not yet donated to the government. Thus, the subdivision owner can no longer
sell or alienate the roads for they are already owned by the government; thus, even if
[petitioners] want to buy this road, and the [ARB] wants to sell the same, this transaction cannot
materialize for the above-stated reasons. Accordingly, [ARB] cannot prevent/prohibit plaintiffs
from using the road as the same belongs to the government.

xxx xxx xxx

WHEREFORE, … [ARB] is ordered to cease and desist from preventing [petitioners] in using
the subject road or any other road in the subdivision.

xxx xxx xxx

SO ORDERED. 5 (citations omitted)

ARB elevated the case to the Court of Appeals.6 Finding merit in the appeal, the appellate court
reversed the decision of the lower court. It explained that the 1991 case of White Plains
Subdivision[7] did not apply to the present case which was decided under a different factual
milieu:

… In the assailed Decision, the Court below relied on the ruling of the Supreme Court in White
Plains Association, Inc. vs. Legaspi (193 SCRA 765). The ruling is not applicable. In the White
Plains case, the disputed area was specifically set aside by the Quezon City Government, with
the concurrence of the owner and developer of the White Plains Subdivision in Quezon City, for
the purpose of constructing a major thoroughfare open to the general public. The case was filed
by the association of homeowners of White Plains in Quezon City … when the owner-developer
sought to convert the disputed lot to residential lots. The Supreme Court initially held that the
disputed lot was not longer within the commerce of men, it having been segregated for a
particular purpose, that of being used as "part of a mandatory open space reserved for public use
to be improved into the widened Katipunan Road". It was within this context that the Supreme
Court held that "ownership was automatically vested in the Quezon City government and/or the
Republic of the Philippines, without need of paying any compensation".8

The appellate court went on to rule that a compulsory right of way exists in favor of petitioners
as "[t]here is no other existing adequate outlet to and from [petitioners'] properties to the Marcos
Alvarez Avenue other than the subject existing road lot designated as Lot No. 5827-F-1
belonging to [ARB]."9 In addition, it awarded ₱500,000 to ARB as reasonable indemnity for the
use of the road lot.
Acting on petitioners' motion for reconsideration, the appellate court justified the monetary
award in this manner:

In [o]ur Decision, [w]e awarded the amount of ₱500,000.00 merely as reasonable indemnity for
the use of the road lot, not the alienation thereof. The amount was based on equitable
considerations foremost of which is that, while there is no alienation to speak of, the easement is
of long-standing, that is, until a shorter and adequate outlet is established. Moreover, [ARB]
should be compensated for the wear and tear that [petitioners'] use of the road would contribute
to; it is [ARB] which is solely to be credited for the completion of the road lot. Going by the
conservative valuation of the Municipality of Bacoor, Cavite presented by [petitioners], the
4,760 sq. m. road lot would cost ₱1,904,000 but as stated what is compensated is the use of the
road lot not its alienation.

[Petitioners'] original offer cannot be considered a reasonable indemnity, there being a knotty
legal question involved and it is not [ARB's] fault that the parties had to resort to the courts for a
resolution.10

Unsatisfied with the ruling of the appellate court, petitioners filed this petition for review on
certiorari insisting that ARB is not entitled to be paid any indemnity.

Petitioners argue that the contested road lot is a property of public dominion pursuant to Article
42011 of the Civil Code. Specifically, petitioners point out that the disputed road lot falls under
the category "others of similar character" which is the last clause of Article 420 (1).12 Hence, it is
a property of public dominion which can be used by the general public without need for
compensation. Consequently, it is wrong for ARB to exclude petitioners from using the road lot
or to make them pay for the use of the same.

We disagree.

In the case of Abellana, Sr. v. Court of Appeals,13 the Court held that "the road lots in a private
subdivision are private property, hence, the local government should first acquire them by
donation, purchase, or expropriation, if they are to be utilized as a public road."14 Otherwise,
they remain to be private properties of the owner-developer.

Contrary to the position of petitioners, the use of the subdivision roads by the general public does
not strip it of its private character. The road is not converted into public property by mere
tolerance of the subdivision owner of the public's passage through it. To repeat, "the local
government should first acquire them by donation, purchase, or expropriation, if they are to be
utilized as a public road."15

Likewise, we hold the trial court in error when it ruled that the subject road is public property
pursuant to Section 2 of Presidential Decree No. 1216.16 The pertinent portion of the provision
reads:

Section 2. xxx xxx xxx

Upon their completion as certified to by the Authority, the roads, alleys, sidewalks and
playgrounds shall be donated by the owner or developer to the city or municipality and it shall be
mandatory for the local governments to accept them provided, however, that the parks and
playgrounds may be donated to the Homeowners Association of the project with the consent of
the city or municipality concerned…

The law is clear. The transfer of ownership from the subdivision owner-developer to the local
government is not automatic but requires a positive act from the owner-developer before the city
or municipality can acquire dominion over the subdivision roads. Therefore, until and unless the
roads are donated,17 ownership remains with the owner-developer.18

Since no donation has been made in favor of any local government and the title to the road lot is
still registered in the name of ARB, the disputed property remains private.

This is not to say that ARB may readily exclude petitioners from passing through the property.
As correctly pointed out by the Court of Appeals, the circumstances clearly make out a case of
legal easement of right of way. It is an easement which has been imposed by law and not by the
parties and it has "for (its) object either public use or the interest of private persons."19

To be entitled to a legal easement of right of way, the following requisites must concur: (1) the
dominant estate is surrounded by other immovables and has no adequate outlet to a public
highway; (2) payment of proper indemnity; (3) the isolation was not due to acts of the proprietor
of the dominant estate and (4) the right of way claimed is at the point least prejudicial to the
servient estate.20

The appellate and trial courts found that the properties of petitioners are enclosed by other estates
without any adequate access to a public highway except the subject road lot which leads to
Marcos Alvarez Avenue.21 Although it was shown that the shortest distance from the properties
to the highway is toward the east across a creek, this alternative route does not provide an
adequate outlet for the students of the proposed school. This route becomes marshy as the creek
overflows during the rainy season and will endanger the students attending the school.

All told, the only requisite left unsatisfied is the payment of proper indemnity.

Petitioners assert that their initial offer of ₱50,000 should be sufficient compensation for the
right of way. Further, they should not be held accountable for the increase in the value of the
property since the delay was attributable to the stubborn refusal of ARB to accept their offer.22

Again, we are not persuaded.

In the case of a legal easement, Article 649 of the Civil Code prescribes the parameters by which
the proper indemnity may be fixed. Since the intention of petitioners is to establish a permanent
passage, the second paragraph of Article 649 of the Civil Code particularly applies:

Art 649. xxx xxx xxx

Should this easement be established in such a manner that its use may be continuous for all the
needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of
the value of the land occupied and the amount of the damage caused to the servient
estate. xxx. (Emphasis supplied)

On that basis, we further hold that the appellate court erred in arbitrarily awarding indemnity
for the use of the road lot.

The Civil Code categorically provides for the measure by which the proper indemnity may be
computed: value of the land occupied plus the amount of the damage caused to the servient
estate. Settled is the rule in statutory construction that "when the law is clear, the function of the
courts is simple application."23 Thus, to award the indemnity using factors different from that
given by the law is a complete disregard of these clear statutory provisions and is evidently
arbitrary. This the Court cannot countenance. The Civil Code has clearly laid down the
parameters and we cannot depart from them. Verba legis non est recedendum.

Having settled the legal issues, we order the remand of this case to the trial court for reception of
evidence and determination of the limits of the property to be covered by the easement, the
proper indemnity to be paid and the respective contributions of petitioners.

For the guidance of the trial court, the fact that the disputed road lot is used by the general public
may be taken in consideration to mitigate the amount of damage that the servient estate is
entitled to, in the sense that the wear and tear of the subject road is not entirely attributable to
petitioners.

WHEREFORE, this petition is partially GRANTED. The September 30, 2002 Decision and
February 14, 2003 resolution of the Court of Appeals in CA-G.R. CV No. 515333
are ANNULLED and SET ASIDE in so far as petitioners are ordered to pay an indemnity of
₱500,000. The case is hereby remanded to the trial court for reception of evidence and
determination of the limits of the property to be covered by the easement, the proper indemnity
to be paid and the respective contributions of petitioners.

SO ORDERED.

FIRST DIVISION

G.R. No. L-37409 May 23, 1988

NICOLAS VALISNO, plaintiff-appellant,

vs.
FELIPE ADRIANO, defendant-appellee.

Honorio Valisno Garcia I for plaintiff-appelant.

Felipe K Medina for defendant-appellee.

GRIÑO-AQUINO, J.:

This case was certified to this Court by the Court of Appeals in a resolution dated August 10,
1973, the sole issue being a question of law and beyond its jurisdiction. to decide.

Admitted by the parties in their pleading and established during the trial on the merits are the
following material facts:

On June 20, 1960, 'the plaintiff-appellant file against the defendant-appellee an action for
damages docketed as Civil Case No. 3472 in the Court of First Instance of Nueva Ecija. The
complaint alleged that the plaintiff is the absolute owner and actual possessor of a 557,949-
square-meter parcel of land in La Fuente, Santa Rosa, Nueva Ecija, and more particularly
described in his Transfer Certificate of Title No. NT-16281. The plaintiff-appellant Valisno
bought the land from the defendant-appellees sister, Honorata Adriano Francisco, on June
6,1959. (Deed of Absolute Sale, Exh. "A".) The land which is planted with watermelon, peanuts,
corn, tobacco, and other vegetables adjoins that of the appellee Felipe Adriano on the bank of the
Pampanga River. Both parcels of land had been inherited by Honorata Adriano Francisco and her
brother, Felipe Adriano, from their father, Eladio Adriano. At the time of the sale of the land to
Valisno, the land was irrigated by water from the Pampanga River through a canal about seventy
(70) meters long, traversing the appellee's land.

On December 16, 1959, the appellee levelled a portion of the irrigation canal so that the
appellant was deprived of the irrigation water and prevented from cultivating his 57-hectare land.

The appellant filed in the Bureau of Public Works and Communications a complaint for
deprivation of water rights. A decision was rendered on March 22, 1960 ordering Adriano to
reconstruct the irrigation canal, "otherwise judicial action shall be taken against him under the
provisions of Section 47 of Act 2152 (the Irrigation Act), as amended." Instead of restoring the
irrigation canal, the appellee asked for a reinvestigation of the case by the Bureau of Public
Works and Communications. A reinvestigation was granted.

In the meantime, plaintiff Valisno rebuilt the irrigation canal at his own expense because his
need for water to irrigate his watermelon fields was urgent.

On June 20, 1960, he filed a complaint for damages in the Court of First Instance (now Regional
Trial Court) of Nueva Ecija (Civil Case No. 3472) claiming that he suffered damages amounting
to P8,000 when he failed to plant his fields that year (1960) for lack of irrigation water, P800 to
reconstruct the canal on defendant Adriano's land, and P1,500 for attorney's fees and the costs of
suit.

On October 25, 1961, the Secretary of Public Works and Communications reversed the Bureau's
decision by issuing a final resolution dismissing Valisno's complaint. The Secretary held that
Eladio Adriano's water rights which had been granted in 1923 ceased to be enjoyed by him in
1936 or 1937, when his irrigation canal collapsed. His non-use of the water right since then for a
period of more than five years extinguished the grant by operation of law, hence the water rights
did not form part of his hereditary estate which his heirs partitioned among themselves. Valisno,
as vendee of the land which Honorata received from her father's estate did not acquire any water
rights with the land purchased.

In his answer to the damage suit (Civil Case No. 3472), the defendant Felipe Adriano admitted
that he levelled the irrigation canal on his land, but he averred: that neither his late father nor his
sister Honorata possessed water rights for the land which she sold to the appellant; that he (the
appellee) applied for water rights for his land in 1956 and obtained the same in 1958; and that he
had a perfect right to level his land for his own use because he merely allowed his sister to use
his water rights when she still owned the adjacent land. He set up a counterclaim for P3,000 as
damages incurred by him in levelling the land on which the appellant dug an irrigation canal,
P2,000 as actual damages, P3,000 as attorney's fees, and expenses of litigation.

In a decision dated April 21, 1966, the trial court held that the plaintiff had no right to pass
through the defendant's land to draw water from the Pampanga River. It pointed out that under
Section 4 of the Irrigation Law, controversies between persons claiming a right to water from a
stream are within the jurisdiction of the Secretary of Public Works and his decision on the matter
is final, unless an appeal is taken to the proper court within thirty days. The court may not pass
upon the validity of the decision of the Public Works Secretary collaterally. Furthermore, there
was nothing in the plaintiff 's evidence to show that the resolution was not valid. It dismissed the
complaint and counterclaim.

The plaintiff's motion for reconsideration of the decision was denied by the trial court. The
plaintiff appealed to the Court of Appeals which certified the case to Us upon the legal question
of whether the provisions of the Irrigation Act (Act No. 2152) or those of the Civil Code should
apply to this case.

The plaintiff-appellant argues that while the trial court correctly held that the Secretary of Public
Works may legally decide who between the parties is entitled to apply for water rights under the
Irrigation Act, it erred in ruling that the Secretary has authority to hear and decide the plaintiff 's
claim for damages for the defendant's violation of his (plaintiff's) right to continue to enjoy the
easement of aqueduct or water through the defendant's land under Articles 642, 643, and 646 of
the Civil Code, which provide:

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

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

(1) To prove that he can dispose of the water and that it is sufficient for the use for
which it is intended;
 (2) To show that the proposed right of way is the most convenient and the least
onerous to third persons;

(3) To indemnify the owner of the servient estate in the manner determined by the
laws and regulations.

Article 646. For legal purposes, the easement of aqueduct shall be considered as
continuous and apparent, even though the flow of the water may not be
continuous, or its use depends upon the needs of the dominant estate, or upon a
schedule of alternate days or hours.

The existence of the irrigation canal on defendant's land for the passage of water from the
Pampanga River to Honorata's land prior to and at the time of the sale of Honorata's land to the
plaintiff was equivalent to a title for the vendee of the land to continue using it as provided in
Article 624 of the Civil Code:

Article 624. The existence of an apparent sign of easement between two estates,
established or maintained by the owner of both shall be considered, should either
of them be alienated, as a title in order that he easement may continue actively
and passively, unless at the time, theownership of the two estates is divided, the
contrary should be provided in the title of conveyance of either of them, or the
sign aforesaid should be removed before the execution of the deed.

This provision shall also apply in case of the division of a thing owned in common on by two or
more persons (Civil Code)

This provision was lifted from Article 122 of the Spanish Law of Waters which
provided:

Article 122. Whenever a tract of irrigated land which previously received its
waters from a single point is divided through inheritance, sale or by virtue of
some other title, between two or more owners, the owners of the higher estates are
under obligation to give free passage to the water as an easement of conduit for
the irrigation of the lower estates, and without right to any compensation therefore
unless otherwise stipulated in the deed of conveyance. (Art. 122, Spanish Law of
Waters of August 3, 1866.)

No enlightened concept of ownership can shut out the Idea of restrictions thereon, such as
easements. Absolute and unlimited dominion is unthinkable, inasmuch as the proper enjoyment
of property requires mutual service and forbearance among adjoining estates (Amor vs.
Florentino, 74 Phil. 403).

As indicated in the decision dated March 22, 1960 of the Bureau of Works "the principal issue
involved in this case falls under the subject of servitude of waters which are governed by Article
648 of the new Civil Code and the suppletory laws mentioned in the cases of Lunod vs. Meneses
11 Phil. 128) and Osmena vs. Camara (C.A. 380 62773) which are the irrigation law and the
Spanish Law of Waters of August 3, 1866, specifically Article 122 thereof.

The deed of sale in favor of Valisno included the "conveyance and transfer of the water rights
and improvements" appurtenant to Honorata Adriano's property. By the terms of the Deed of
Absolute Sale, the vendor Honorata Adriano Francisco sold, ceded, conveyed and transferred to
Dr. Nicolas Valisno all "rights, title, interest and participations over the parcel of land above-
described, together with one Berkely Model 6 YRF Centrifugal Pump G" suction, 6" discharge
500-1500 GPM, with Serial No. 5415812 and one (1) set of suction pipe and discharge of pipe
with elbow, nipples, flanges and footvalves," and the water rights and such other improvements
appertaining to the property subject of this sale. According to the appellant, the water right was
the primary consideration for his purchase of Honorata's property, for without it the property
would be unproductive.

Water rights, such as the right to use a drainage ditch for irrigation purposes, which are
appurtenant to a parcel of land, pass with the conveyance of the land, although not specifically
mentioned in the conveyance. The purchaser's easement of necessity in a water ditch running
across the grantor's land cannot be defeated even if the water is supplied by a third person
(Watson vs. French, 112 Me 371 19 C.J. 868-897). The fact that an easement by grant may also
have qualified as an easement of necessity does detract from its permanency as property right,
which survives the determination of the necessity (Benedicto vs. CA, 25 SCRA
145).<äre||anº•1àw>

As an easement of waters in favor of the appellant has been established, he is entitled to enjoy it
free from obstruction, disturbance or wrongful interference (19 CJ 984), such as the appellee's
act of levelling the irrigation canal to deprive him of the use of water from the Pampanga River.

WHEREFORE, the appealed decision is set aside, and a new one is entered ordering the appellee
to grant the appellant continued and unimpeded use of the irrigation ditch traversing his land in
order to obtain water from the Pampanga River to irrigate appellant's land. Let the records of this
case be remanded to the court a quo for the reception of evidence on the appellant's claim for
damages.

SO ORDERED.

G.R. No. L-60077 January 18, 1991

NATIONAL POWER CORPORATION, petitioner,

vs.
SPS. MISERICORDIA GUTIERREZ and RICARDO MALIT and THE HONORABLE
COURT OF APPEALS,respondents.

Pedro S. Dabu for private respondents.

BIDIN, J.:

This is a petition for review on certiorari filed by the National Power Corporation (NPC)
seeking the reversal or modification of the March 9, 1986 Decision of the Court of Appeals in
CA G.R. No. 54291-R entitled "National Power Corporation v. Sps. Misericordia Gutierrez and
Ricardo Malit", affirming the December 4, 1972 Decision of the then Court of First Instance of
Pampanga, Fifth Judicial District, Branch II, in Civil Case No. 2709, entitled National Power
Corporation v. Matias Cruz, et al.

The undisputed facts of the case, as found by the Court of Appeals, are as follows:

Plaintiff National Power Corporation, a government owned and controlled entity, in

accordance with Commonwealth Act No. 120, is invested with the power of eminent
domain for the purpose of pursuing its objectives, which among others is the
construction, operation, and maintenance of electric transmission lines for distribution
throughout the Philippines. For the construction of its 230 KV Mexico-Limay
transmission lines, plaintiff's lines have to pass the lands belonging to defendants Matias
Cruz, Heirs of Natalia Paule and spouses Misericordia Gutierrez and Ricardo Malit
covered by tax declarations Nos. 907, 4281 and 7582, respectively.

Plaintiff initiated negotiations for the acquisition of right of way easements over the
aforementioned lots for the construction of its transmission lines but unsuccessful in this
regard, said corporation was constrained to file eminent domain proceedings against the
herein defendants on January 20, 1965.

Upon filing of the corresponding complaint, plaintiff corporation deposited the amount of
P973.00 with the Provincial Treasurer of Pampanga, tendered to cover the provisional
value of the land of the defendant spouses Ricardo Malit and Misericordia Gutierrez. And
by virtue of which, the plaintiff corporation was placed in possession of the property of
the defendant spouses so it could immediately proceed with the construction of its
Mexico-Limay 230 KV transmission line. In this connection, by the trial court's order of
September 30, 1965, the defendant spouses were authorized to withdraw the fixed
provisional value of their land in the sum of P973.00.

The only controversy existing between the parties litigants is the reasonableness and
adequacy of the disturbance or compensation fee of the expropriated properties.

Meanwhile, for the purpose of determining the fair and just compensation due the
defendants, the court appointed three commissioners, comprised of one representative of
the plaintiff, one for the defendants and the other from the court, who then were
empowered to receive evidence, conduct ocular inspection of the premises, and
thereafter, prepare their appraisals as to the fair and just compensation to be paid to the
owners of the lots. Hearings were consequently held before said commissioners and
during their hearings, the case of defendant Heirs of Natalia Paule was amicably settled
by virtue of a Right of Way Grant (Exh. C) executed by Guadalupe Sangalang for herself
and in behalf of her co-heirs in favor of the plaintiff corporation. The case against Matias
Cruz was earlier decided by the court, thereby leaving only the case against the defendant
spouses Ricardo Malit and Misericordia Gutierrez still to be resolved. Accordingly, the
commissioners submitted their individual reports. The commissioner for the plaintiff
corporation recommended the following:

. . . that plaintiff be granted right of way easement over the 760 square meters of
the defendants Malit and Gutierrez land for plaintiff transmission line upon
payment of an easement fee of P1.00 therefor. . . . (Annex M)

The commissioner for the defendant spouses recommended the following:

. . . that Mr. and Mrs. Ricardo Malit be paid as disturbance compensation the
amount of P10.00 sq. meter or the total amount of P7,600.00' (Annex K)

The Court's commissioner recommended the following:

. . . the payment of Five (P 5.OO) Pesos per square meter of the area covered by
the Right-of-way to be granted, . . .(Annex L)

The plaintiff corporation urged the Court that the assessment as recommended by
their commissioner be the one adopted. Defendant spouses, however, dissented
and objected to the price recommended by both the representative of the court and
of the plaintiff corporation.

With these reports submitted by the three commissioners and on the evidence
adduced by the defendants as well as the plaintiff for the purpose of proving the
fair market value of the property sought to be expropriated, the lower court
rendered a decision the dispositive portion of which reads as follows:

WHEREFORE, responsive to the foregoing considerations, judgment is

hereby rendered ordering plaintiff National Power Corporation to pay
defendant spouses Ricardo Malit and Misericordia Gutierrez the sum of
P10.00 per square meter as the fair and reasonable compensation for the
right-of-way easement of the affected area, which is 760 squares, or a total
sum of P7,600.00 and P800.00 as attorney's fees' (Record on Appeal, p.
83)

Dissatisfied with the decision, the plaintiff corporation filed a motion for
reconsideration which was favorably acted upon by the lower court, and in an
order dated June 10, 1973, it amended its previous decision in the following tenor:

On the basis of an ocular inspection made personally by the undersigned,

this court finally classified the land of the spouses Ricardo Malit and
Misericordia to be partly commercial and partly agricultural, for which
reason the amount of P10.00 per sq. meter awarded in the decision of
December 4,1972 is hereby reduced to P5.00 per square meter as the fair
 and reasonable market value of the 760 square meters belonging to the
said spouses.

There being no claim and evidence for attorney's fees, the amount of
P800.00 awarded as attorney's fees, in the decision of December 4, 1972 is
hereby reconsidered and set aside. (Annex S)

Still not satisfied, an appeal was filed by petitioner (NPC) with the Court of
Appeals but respondent Court of Appeals in its March 9, 1982, sustained the trial
court, as follows:

WHEREFORE, finding no reversible error committed by the court a quo,

the appealed judgment is hereby affirmed with costs against the plaintiff-
appellant.

Hence, the instant petition.

The First Division of this Court gave due course to the petition and required both parties to
submit their respective memoranda (Resolution of January 12, 1983). It also noted in an internal
resolution of August 17, 1983 that petitioner flied its memorandum while the respondents failed
to file their memorandum within the period which expired on February 24,1983; hence, the case
was considered submitted for decision.

The sole issue raised by petitioner is —

WHETHER PETITIONER SHOULD BE MADE TO PAY SIMPLE EASEMENT FEE

OR FULL COMPENSATION FOR THE LAND TRAVERSED BY ITS
TRANSMISSION LINES.

It is the contention of petitioner that the Court of Appeals committed gross error by adjudging
the petitioner liable for the payment of the full market value of the land traversed by its
transmission lines, and that it overlooks the undeniable fact that a simple right-of-way easement
(for the passage of transmission lines) transmits no rights, except that of the easement. Full
ownership is retained by the private respondents and they are not totally deprived of the use of
the land. They can continue planting the same agricultural crops, except those that would result
in contact with the wires. On this premise, petitioner submits that if full market value is required,
then full transfer of ownership is only the logical equivalent.

The petition is devoid of merit. The resolution of this case hinges on the determination of
whether the acquisition of a mere right-of-way is an exercise of the power of eminent domain
contemplated by law.1âwphi1

The trial court's observation shared by the appellate court show that ". . . While it is true that
plaintiff are (sic) only after a right-of-way easement, it nevertheless perpetually deprives
defendants of their proprietary rights as manifested by the imposition by the plaintiff upon
defendants that below said transmission lines no plant higher than three (3) meters is allowed.
Furthermore, because of the high-tension current conveyed through said transmission lines,
danger to life and limbs that may be caused beneath said wires cannot altogether be discounted,
and to cap it all plaintiff only pays the fee to defendants once, while the latter shall continually
pay the taxes due on said affected portion of their property."

The foregoing facts considered, the acquisition of the right-of-way easement falls within the
purview of the power of eminent domain. Such conclusion finds support in similar cases of
easement of right-of-way where the Supreme Court sustained the award of just compensation for
private property condemned for public use (See National Power Corporation vs. Court of
Appeals, 129 SCRA 665, 1984; Garcia vs. Court of Appeals, 102 SCRA 597,1981). The
Supreme Court, in Republic of the Philippines vs. PLDT, * thus held that:

Normally, of course, the power of eminent domain results in the taking or appropriation
of title to, and possession of, the expropriated property; but no cogent reason appears why
said power may not be availed of to impose only a burden upon the owner of condemned
property, without loss of title and possession. It is unquestionable that real property may,
through expropriation, be subjected to an easement of right-of-way.

In the case at bar, the easement of right-of-way is definitely a taking under the power of eminent
domain. Considering the nature and effect of the installation of the 230 KV Mexico-Limay
transmission lines, the limitation imposed by NPC against the use of the land for an indefinite
period deprives private respondents of its ordinary use.

For these reasons, the owner of the property expropriated is entitled to a just compensation,
which should be neither more nor less, whenever it is possible to make the assessment, than the
money equivalent of said property. Just compensation has always been understood to be the just
and complete equivalent of the loss which the owner of the thing expropriated has to suffer by
reason of the expropriation (Province of Tayabas vs. Perez, 66 Phil. 467 [1938]; Assoc. of Small
Land Owners of the Phils., Inc. vs. Secretary of Agrarian Reform, G.R. No. 78742; Acuna vs.
Arroyo, G.R. No. 79310; Pabrico vs. Juico, G.R. No. 79744; Manaay v. Juico, G.R. No.
79777,14 July 1989, 175 SCRA 343 [1989]). The price or value of the land and its character at
the time it was taken by the Government are the criteria for determining just compensation
(National Power Corp. v. Court of Appeals, 129 SCRA 665, [1984]). The above price refers to
the market value of the land which may be the full market value thereof. According to private
respondents, the market value of their lot is P50.00 per square meter because the said lot is
adjacent to the National and super highways of Gapan, Nueva Ecija and Olongapo City.

Private respondents recognize the inherent power of eminent domain being exercised by NPC
when it finally consented to the expropriation of the said portion of their land, subject however to
payment of just compensation. No matter how laudable NPC's purpose is, for which
expropriation was sought, it is just and equitable that they be compensated the fair and full
equivalent for the loss sustained, which is the measure of the indemnity, not whatever gain
would accrue to the expropriating entity (EPZA v. Dulay, 149 SCRA 305 [1987]; Mun. of Daet
v. Court of Appeals, 93 SCRA 503 (1979]).
It appearing that the trial court did not act capriciously and arbitrarily in setting the price of
P5.00 per square meter of the affected property, the said award is proper and not unreasonable.

On the issue of ownership being claimed by petitioner in the event that the price of P5.00 per
square meter be sustained, it is well settled that an issue which has not been raised in the Court a
quo cannot be raised for the first time on appeal as it would be offensive to the basic rules of fair
play, justice and due process . . . (Filipino Merchants v. Court of Appeals, G.R. No. 85141,
November 8, 1989, 179 SCRA 638; Commissioner of Internal Revenue v. Procter and Gamble
Philippines Manufacturing Corporation, 160 SCRA 560 [1988]; Commissioner of Internal
Revenue v. Wander Philippines, Inc., 160 SCRA 573 1988]). Petitioner only sought an easement
of right-of-way, and as earlier discussed, the power of eminent domain may be exercised
although title was not transferred to the expropriator.

WHEREFORE, the assailed decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

UNISOURCE COMMERCIAL AND G.R. No. 173252

DEVELOPMENT CORPORATION,
Petitioner, Present:

QUISUMBING, J., Chairperson,

CARPIO MORALES,
- versus - CHICO-NAZARIO,*
LEONARDO-DE CASTRO,** and
BRION, JJ.

JOSEPH CHUNG, KIAT CHUNG and Promulgated:

KLETO CHUNG,
Respondents. July 17, 2009
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

The instant petition assails the Decision[1] dated October 27, 2005 and the
Resolution[2] dated June 19, 2006 of the Court of Appeals in CA-G.R. CV No. 76213. The
appellate court had reversed and set aside the Decision[3] dated August 19, 2002 of the Regional
Trial Court of Manila, Branch 49, in Civil Case No. 00-97526.

The antecedent facts are as follows:

Petitioner Unisource Commercial and Development Corporation is the registered owner

of a parcel of land covered by Transfer Certificate of Title (TCT) No. 176253 [4] of the Register
of Deeds of Manila. The title contains a memorandum of encumbrance of a voluntary easement
which has been carried over from the Original Certificate of Title of Encarnacion S.
Sandico. The certified English translation[5] of the annotation reads:

By order dated 08 October 1924 of the Court of First Instance of Manila,

Chamber IV (AP-7571/T-23046), it is declared that Francisco Hidalgo y
Magnifico has the right to open doors in the course of his lot described as Lot No.
2, Block 2650 of the map that has been exhibited, towards the left of the Callejon
that is used as a passage and that appears as adjacent to the said Lot 2 and to pass
through the land of Encarnacion Sandico y Santana, until the bank of the estero
that goes to the Pasig River, and towards the right of the other Callejon that is
situated between the said Lot 2 and Lot 4 of the same Block N.[6]

As Sandicos property was transferred to several owners, the memorandum of encumbrance

of a voluntary easement in favor of Francisco M. Hidalgo was consistently annotated at the back of
every title covering Sandicos property until TCT No. 176253 was issued in petitioners favor. On the
other hand, Hidalgos property was eventually transferred to respondents Joseph Chung, Kiat Chung
and Cleto Chung under TCT No. 121488.[7]

On May 26, 2000, petitioner filed a Petition to Cancel the Encumbrance of Voluntary
Easement of Right of Way[8] on the ground that the dominant estate has an adequate access to a
public road which is Matienza Street. The trial court dismissed the petition on the ground that it
is a land registration case. Petitioner moved for reconsideration.Thereafter, the trial court
conducted an ocular inspection of the property. In an Order[9] dated November 24, 2000, the trial
court granted the motion and made the following observations:

1. The dominant estate is a property enclosed with a concrete fence

with no less than three (3) doors in it, opening to an alley
belonging to the servient estate owned by the petitioner. The alley
is leading to Matienza St.;

2. The dominant estate has a house built thereon and said house
has a very wide door accessible to Matienza St. without any
obstruction. Said street is perpendicular to J.P. Laurel St.

It is therefore found that the dominant estate has an egress to Matienza

St. and does not have to use the servient estate.[10]

In their Answer,[11] respondents countered that the extinguishment of the easement will
be of great prejudice to the locality and that petitioner is guilty of laches since it took petitioner
15 years from acquisition of the property to file the petition.

In a Decision dated August 19, 2002, the trial court ordered the cancellation of the
encumbrance of voluntary easement of right of way in favor of the dominant estate owned by
respondents. It found that the dominant estate has no more use for the easement since it
has another adequate outlet to a public road which is Matienza Street. The dispositive portion of
the decision reads:

IN VIEW OF ALL THE FOREGOING, the Court hereby orders the

cancellation of the Memorandum of Encumbrance annotated in TCT No. 176253
which granted a right of way in favor of the person named therein and, upon the
finality of this decision, the Register of Deeds of the City of Manila is hereby
directed to cancel said encumbrance.

With respect to the other prayers in the petition, considering that the same
are mere incidents to the exercise by the owners of right of their ownership which
they could well do without the Courts intervention, this Court sees no need to
specifically rule thereon. The Court cannot award plaintiffs claims for damages
and attorneys fees for lack of sufficient bases therefor.

SO ORDERED.[12]

Respondents appealed to the Court of Appeals. On October 27, 2005, the appellate court
reversed the decision of the trial court and dismissed the petition to cancel the encumbrance of
voluntary easement of right of way.

The appellate court ruled that when petitioners petition was initially dismissed by the
executive judge, the copy of the petition and the summons had not yet been served on
respondents. Thus, when petitioner moved to reconsider the order of dismissal, there was no
need for a notice of hearing and proof of service upon respondents since the trial court has not
yet acquired jurisdiction over them. The trial court acquired jurisdiction over the case and over
respondents only after the summons was served upon them and they were later given ample
opportunity to present their evidence.

The appellate court also held that the trial court erred in canceling the encumbrance of
voluntary easement of right of way. The appellate court ruled that Article 631(3)[13]of the Civil
Code, which was cited by the trial court, is inapplicable since the presence of an adequate outlet
to a highway extinguishes only legal or compulsory easements but not voluntary easements like
in the instant case. There having been an agreement between the original parties for the provision
of an easement of right of way in favor of the dominant estate, the same can be extinguished only
by mutual agreement or by renunciation of the owner of the dominant estate.

The decretal portion of the decision reads:

WHEREFORE, the foregoing considered, the appeal is
hereby GRANTED and the assailed decision is REVERSED and SET
ASIDE. Accordingly, the petition to cancel the encumbrance of right of way is
dismissed for lack of merit.
No costs.
 SO ORDERED.[14]

Before us, petitioner alleges that the Court of Appeals erred in:
I.
BRUSHING ASIDE PETITIONERS CONTENTION THAT THE EASEMENT
IS PERSONAL SINCE THE ANNOTATION DID NOT PROVIDE THAT IT IS
BINDING ON THE HEIRS OR ASSIGNS OF SANDICO.

II.
NOT CONSIDERING THAT THE EASEMENT IS PERSONAL SINCE NO
COMPENSATION WAS GIVEN TO PETITIONER.

III.
DISREGARDING THE CIVIL CODE PROVISION ON UNJUST
ENRICHMENT.

IV.
TREATING THE EASEMENT AS PREDIAL.[15]

Petitioner contends that the fact that Sandico and Hidalgo resorted to judicial intervention
only shows that they contested the existence of the requisite factors establishing a legal
easement. Besides, the annotation itself provides that the easement is exclusively confined to the
parties mentioned therein, i.e., Sandico and Hidalgo. It was not meant to bind their heirs or
assigns; otherwise, they would have expressly provided for it. Petitioner adds that it would be an
unjust enrichment on respondents part to continue enjoying the easement without adequate
compensation to petitioner. Petitioner also avers that to say that the easement has attached
to Hidalgos property is erroneous since such property no longer exists after it has been
subdivided and registered in respondents respective names.[16] Petitioner further argues that even
if it is bound by the easement, the same can be cancelled or revoked since the dominant estate
has an adequate outlet without having to pass through the servient estate.

Respondents adopted the disquisition of the appellate court as their counter-arguments.

The petition lacks merit.

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. Easements
are established either by law or by the will of the owner. The former are called legal, and the
latter, voluntary easements.[17]
 In this case, petitioner itself admitted that a voluntary easement of right of way exists in
favor of respondents. In its petition to cancel the encumbrance of voluntary easement of right of
way, petitioner alleged that [t]he easement is personal. It was voluntarily constituted in favor of a
certain Francisco Hidalgo y Magnifico, the owner of [the lot] described as Lot No. 2, Block
2650.[18] It further stated that the voluntary easement of the right of way in favor of Francisco
Hidalgo y Magnifico was constituted simply by will or agreement of the parties. It was not a
statutory easement and definitely not an easement created by such court order because [the]
Court merely declares the existence of an easement created by the parties.[19] In its
Memorandum[20] dated September 27, 2001, before the trial court, petitioner reiterated that [t]he
annotation found at the back of the TCT of Unisource is a voluntary easement.[21]

Having made such an admission, petitioner cannot now claim that what exists is a legal
easement and that the same should be cancelled since the dominant estate is not an enclosed
estate as it has an adequate access to a public road which is Callejon Matienza Street.[22] As we
have said, the opening of an adequate outlet to a highway can extinguish only legal or
compulsory easements, not voluntary easements like in the case at bar. The fact that an easement
by grant may have also qualified as an easement of necessity does not detract from its
permanency as a property right, which survives the termination of the necessity.[23] A voluntary
easement of right of way, like any other contract, could be extinguished only by mutual
agreement or by renunciation of the owner of the dominant estate.[24]

Neither can petitioner claim that the easement is personal only to Hidalgo since the
annotation merely mentioned Sandico and Hidalgo without equally binding their heirs or
assigns. That the heirs or assigns of the parties were not mentioned in the annotation does not
mean that it is not binding on them. Again, a voluntary easement of right of way is like any other
contract. As such, it is generally effective between the parties, their heirs and assigns, except in
case where the rights and obligations arising from the contract are not transmissible by their
nature, or by stipulation or by provision of law.[25] Petitioner cites City of Manila v. Entote[26] in
justifying that the easement should bind only the parties mentioned therein and exclude those not
so mentioned. However, that case is inapplicable since the issue therein was whether the
easement was intended not only for the benefit of the owners of the dominant estate but of the
community and the public at large.[27] In interpreting the easement, the Court ruled that the
clause any and all other persons whomsoever in the easement embraces only those who are privy
to the owners of the dominant estate, Lots 1 and 2 Plan Pcs-2672 and excludes the indiscriminate
public from the enjoyment of the right-of-way easement.[28]

We also hold that although the easement does not appear in respondents title over the
dominant estate, the same subsists. It is settled that the registration of the dominant estate under
the Torrens system without the annotation of the voluntary easement in its favor does not
extinguish the easement. On the contrary, it is the registration of the servient estate as free, that
is, without the annotation of the voluntary easement, which extinguishes the easement.[29]

Finally, the mere fact that respondents subdivided the property does not extinguish the
easement. Article 618 [30] of the Civil Code provides that if the dominant estate is divided
between two or more persons, each of them may use the easement in its entirety, without
changing the place of its use, or making it more burdensome in any other way.

WHEREFORE, the instant petition is DENIED. The Decision dated October 27,
2005 and the Resolution dated June 19, 2006 of the Court of Appeals in CA-G.R. CV No. 76213
are AFFIRMED.

SO ORDERED.

NATIONAL POWER CORPORATION, G.R. No. 183297

Petitioner,

- versus -

OMAR G. MARUHOM, ELIAS G. MARUHOM,

BUCAY G. MARUHOM, MAMOD G.
MARUHOM, FAROUK G. MARUHOM,
HIDJARA G. MARUHOM, ROCANIA G.
MARUHOM, POTRISAM G. MARUHOM, Present:
LUMBA G. MARUHOM, SINAB G.
MARUHOM, ACMAD G. MARUHOM, CORONA, J.,
SOLAYMAN G. MARUHOM, MOHAMAD M. Chairperson,
IBRAHIM, CAIRORONESA M. IBRAHIM, and VELASCO, JR.,
LUCMAN IBRAHIM, represented by his heirs NACHURA,
ADORA B. IBRAHIM, NASSER B. IBRAHIM, PERALTA, and
JAMALODIN B. IBRAHIM, RAJID NABBEL B. DEL CASTILLO,** JJ.
IBRAHIM, AMEER B. IBRAHIM and SARAH
AIZAH B. IBRAHIM,* Promulgated:
Respondents.

December 23, 2009

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:
 Petitioner National Power Corporation (NPC) filed this Petition for Review
on Certiorari, seeking to nullify the May 30, 2008 Decision[1]of the Court of Appeals (CA) in
CA-G.R. SP No. 02065-MIN, affirming the Order dated November 13, 2007 issued by Hon.
Amer R. Ibrahim, which granted respondents motion for issuance of a writ of execution.
The antecedents.

Lucman G. Ibrahim and his co-heirs Omar G. Maruhom, Elias G. Maruhom, Bucay G.
Maruhom, Mamod G. Maruhom, Farouk G. Maruhom, Hidjara G. Maruhom, Rocania G.
Maruhom, Potrisam G. Maruhom, Lumba G. Maruhom, Sinab G. Maruhom, Acmad G.
Maruhom, Solayman G. Maruhom, Mohamad M. Ibrahim and Cairoronesa M. Ibrahim
(respondents) are owners of a 70,000-square meter lot in Saduc, Marawi City. Sometime in 1978,
NPC, without respondents knowledge and consent, took possession of the subterranean area of
the land and constructed therein underground tunnels. The tunnels were used by NPC in
siphoning the water of Lake Lanao and in the operation of NPCs Agus II, III, IV, V, VI, and VII
projects located in Saguiran, Lanao del Sur; Nangca and Balo-i in Lanao del Norte; and
Ditucalan and Fuentes in Iligan City. Respondents only discovered the existence of the tunnels
sometime in July 1992. Thus, on October 7, 1992, respondents demanded that NPC pay damages
and vacate the subterranean portion of the land, but the demand was not heeded.
Hence, on November 23, 1994, respondents instituted an action for recovery of
possession of land and damages against NPC with the Regional Trial Court (RTC) of Lanao del
Sur, docketed as Civil Case No. 1298-94.

After trial, the RTC rendered a decision,[2] the decretal portion of which reads:

WHEREFORE, judgment is hereby rendered:

1. Denying [respondents] prayer for [NPC] to dismantle the underground

tunnels constructed beneath the lands of [respondents] in Lots 1, 2, and 3 of
Survey Plan FP (VII-5) 2278;

2. Ordering [NPC] to pay to [respondents] the fair market value of said

70,000 square meters of land covering Lots 1, 2, and 3 as described in Survey
Plan FP (VII-5) 2278 less the area of 21,995 square meters at P1,000.00 per
square meter or a total of P48,005,000.00 for the remaining unpaid portion of
48,005 square meters; with 6% interest per annum from the filing of this case
until paid;

3. Ordering [NPC] to pay [respondents] a reasonable monthly rental

of P0.68 per square meter of the total area of 48,005 square meters effective from
its occupancy of the foregoing area in 1978 or a total of P7,050,974.40.
 4. Ordering [NPC] to pay [respondents] the sum of P200,000.00 as moral
damages; and

5. Ordering [NPC] to pay the further sum of P200,000.00 as attorneys fees

and the costs.

SO ORDERED.[3]

Respondents then filed an Urgent Motion for Execution of Judgment Pending Appeal. On
the other hand, NPC filed a Notice of Appeal. Thereafter, it filed a vigorous opposition to the
motion for execution of judgment pending appeal with a motion for reconsideration of the RTC
decision.
On August 26, 1996, NPC withdrew its Notice of Appeal to give way to the hearing of its
motion for reconsideration. On August 28, 1996, the RTC issued an Order granting execution
pending appeal and denying NPCs motion for reconsideration. The Decision of the RTC was
executed pending appeal and the funds of NPC were garnished by respondents.
On October 4, 1996, Lucman Ibrahim and respondents Omar G. Maruhom, Elias G.
Maruhom, Bucay G. Maruhom, Mamod G. Maruhom, Farouk G. Maruhom, Hidjara G.
Maruhom, Potrisam G. Maruhom and Lumba G. Maruhom filed a Petition for Relief from
Judgment,[4] asserting as follows:

1. They did not file a motion to reconsider or appeal the decision within the
reglementary period of fifteen (15) days from receipt of judgment because they
believed in good faith that the decision was for damages and rentals and attorneys
fees only as prayed for in the complaint;

2. It was only on August 26, 1996 that they learned that the amounts awarded to
the respondents represented not only rentals, damages and attorneys fees but the
greatest portion of which was payment of just compensation which, in effect,
would make the petitioner NPC the owner of the parcels of land involved in the
case;

3. When they learned of the nature of the judgment, the period of appeal had
already expired;

4. They were prevented by fraud, mistake, accident, or excusable negligence from

taking legal steps to protect and preserve their rights over their parcels of land
insofar as the part of the decision decreeing just compensation for respondents
properties;

5. They would never have agreed to the alienation of their property in favor of
anybody, considering the fact that the parcels of land involved in this case were
 among the valuable properties they inherited from their dear father and they
would rather see their land crumble to dust than sell it to anybody.[5]

After due proceedings, the RTC granted the petition and rendered a modified judgment
dated September 8, 1997, thus:

WHEREFORE, a modified judgment is hereby rendered:

1. Reducing the judgment award of [respondents] for the fair market value
of P48,005,000.00 by [P]9,526,000.00 or for a difference
[of] P38,479,000.00 and by the further sum of P33,603,500.00 subject
of the execution pending appeal leaving a difference of
[P]4,878,500.00 which may be the subject of execution upon the
finality of this modified judgment with 6% interest per annum from
the filing of the case until paid.

2. Awarding the sum of P1,476,911.00 to herein [respondents] Omar G.

Maruhom, Elias G. Maruhom, Bucay G. Maruhom, Mahmod G.
Maruhom, Farouk G. Maruhom, Hidjara G. Maruhom, Portrisam G.
Maruhom and Lumba G. Maruhom as reasonable rental deductible
from the awarded sum of P7,050,974.40 pertaining to [respondents].

3. Ordering [NPC] embodied in the August 7, 1996 decision to pay

[respondents] the sum of P200,000.00 as moral damages; and further
sum of P200,000.00 as attorneys fees and costs.

SO ORDERED.[6]

Lucman Ibrahim and NPC then filed their separate appeals with the CA, docketed as CA-
G.R. CV No. 57792. On June 8, 2005, the CA rendered a Decision,[7] setting aside the modified
judgment and reinstating the original Decision, amending it further by deleting the award of
moral damages and reducing the amount of rentals and attorneys fees, thus:

WHEREFORE, premises considered, herein Appeals are hereby

partially GRANTED, the Modified Judgment is ordered SET ASIDE and
rendered of no force and effect and the original Decision of the court a quo dated
7 August 1996 is hereby RESTORED with the MODIFICATION that the
award of moral damages is DELETED and the amounts of rentals and attorneys
fees are REDUCED to P6,887,757.40 and P50,000.00, respectively.

In this connection, the Clerk of Court of RTC Lanao del Sur is hereby directed to
reassess and determine the additional filing fee that should be paid by Plaintiff-
 Appellant IBRAHIM taking into consideration the total amount of damages
sought in the complaint vis--vis the actual amount of damages awarded by this
Court. Such additional filing fee shall constitute as a lien on the judgment.

SO ORDERED[8]

The above decision was affirmed by this Court on June 29, 2007 in G.R. No. 168732, viz.:

WHEREFORE, the petition is DENIED and the Decision of the Court of

Appeals in C.A.-G.R. CV No. 57792 dated June 8, 2005 is AFFIRMED.

No costs.

SO ORDERED.[9]

NPC moved for reconsideration of the Decision, but this Court denied it on August 29, 2007.

To satisfy the judgment, respondents filed with the RTC a motion for execution of its
August 7, 1996 decision, as modified by the CA. On November 13, 2007, the RTC granted the
motion, and issued the corresponding writ of execution. Subsequently, a notice of
garnishment was issued upon NPCs depositary bank.

NPC then filed a Petition for Certiorari (with Urgent Prayer for the Immediate Issuance
of a Temporary Restraining Order and/or Writ of Preliminary Injunction) with the CA, docketed
as CA-G.R. SP No. 02065-MIN. It argued that the RTC gravely abused its discretion when it
granted

the motion for execution without ordering respondents to transfer their title in favor of NPC. By
allowing the payment of just compensation for a parcel of land without the concomitant right of
NPC to get title thereto, the RTC clearly varied the terms of the judgment in G.R. No. 168732,
justifying the issuance of a writ of certiorari. NPC also prayed for the issuance of a temporary
restraining order (TRO) to enjoin the implementation of the writ of execution and notice of
garnishment. On November 29, 2007, the CA granted NPCs prayer and issued a TRO, enjoining
the implementation of the writ of execution and the notice of garnishment.

On May 30, 2008, the CA rendered the now assailed Decision,[10] dismissing NPCs
petition for certiorari. Rejecting NPCs argument, the CA declared that this Courts Decision in
G.R. No. 168732 intended NPC to pay the full value of the property as compensation without
ordering the transfer of respondents title to the land. According to the CA, in a plethora of cases
involving lands traversed by NPCs transmission lines, it had been consistently ruled that an
easement is compensable by the full value of the property despite the fact that NPC was only
after a right-of-way easement, if by such easement it perpetually or indefinitely deprives the land
owner of his proprietary rights by imposing restrictions on the use of the property. The CA,
therefore, ordered NPC to pay its admitted obligation to respondents amounting
to P36,219,887.20.[11]
NPC is now before us faulting the CA for dismissing the formers petition for certiorari. It
also prayed for a TRO to enjoin respondents and all persons acting under their authority from
implementing the May 30, 2008 Decision of the CA. In its July 9, 2008 Resolution,[12] this Court
granted NPCs prayer, and issued a TRO enjoining the execution of the assailed CA Decision.

In the main, NPC insists that the payment of just compensation for the land carries with it
the correlative right to obtain title or ownership of the land taken. It stresses that this Courts
Decision in G.R. No. 168732 is replete with pronouncements that the just compensation awarded
to respondents corresponds to compensation for the entire land and not just for an easement or a
burden on the property, thereby necessitating a transfer of title and ownership to NPC upon
satisfaction of judgment. NPC added that by granting respondents motion for execution, and
consequently issuing the writ of execution and notice of garnishment, the RTC and the CA
allowed respondents to retain title to the property even after the payment of full
compensation. This, according to NPC, was a clear case of unjust enrichment.

The petition lacks merit.

It is a fundamental legal axiom that a writ of execution must conform strictly to the
dispositive portion of the decision sought to be executed. A writ of execution may not vary from,
or go beyond, the terms of the judgment it seeks to enforce. When a writ of execution does not
conform strictly to a decisions dispositive portion, it is null and void.[13]

Admittedly, the tenor of the dispositive portion of the August 7, 1996 RTC decision, as
modified by the CA and affirmed by this Court, did not order the transfer of ownership upon
payment of the adjudged compensation. Neither did such condition appear in the text of the RTC
decision, and of this Courts Decision in G.R. No. 168732.

As aptly pointed out by the CA in its assailed Decision:

[NPC], by its selective quotations from the Decision in G.R. No. 168732, would
have Us suppose that the High Court, in decreeing that [NPC] pay the full value
of the property as just compensation, implied that [NPC] was entitled to the entire
land, including the surface area and not just the subterranean portion. No such
inference can be drawn from [the] reading of the entirety of the High Courts
 Decision. On the contrary, a perusal of the subject Decision yields to this Court
the unmistakable sense that the High Court intended [NPC] to pay the full value
of the subject property as just compensation without ordering the transfer o[f]
respondents title to the land. This is patent from the following language of the
High Court as quoted by [NPC] itself:

In disregarding this procedure and failing to recognize

respondents ownership of the sub-terrain portion, petitioner took a risk
and exposed itself to greater liability with the passage of time. It must be
emphasized that the acquisition of the easement is not without
expense. The underground tunnels impose limitations on respondents use
of the property for an indefinite period and deprive them of its ordinary
use. Based upon the foregoing, respondents are clearly entitled to the
payment of just compensation. Notwithstanding the fact that [NPC] only
occupies the sub-terrain portion, it is liable to pay not merely an
easement but rather the full compensation for land. This is so because in
this case, the nature of the easement practically deprives the owners of
its normal beneficial use. Respondents, as the owners of the property
thus expropriated, are entitled to a just compensation which should be
neither more nor less, whenever it is possible to make the assessment,
than the money equivalent of said property.[14]

Clearly, the writ of execution issued by the RTC and affirmed by the CA does not vary, but is, in
fact, consistent with the final decision in this case. The assailed writ is, therefore, valid.

Indeed, expropriation is not limited to the acquisition of real property with a

corresponding transfer of title or possession. The right-of-way easement resulting in a restriction
or limitation on property rights over the land traversed by transmission lines also falls within the
ambit of the term expropriation.[15]

As we explained in Camarines Norte Electric Cooperative, Inc. v. Court of Appeals:[16]

The acquisition of an easement of a right-of-way falls within the purview

of the power of eminent domain. Such conclusion finds support in easements of
right-of-way where the Supreme Court sustained the award of just compensation
for private property condemned for public use. The Supreme Court, in Republic v.
PLDT thus held that:

Normally, of course, the power of eminent domain results in the taking or

appropriation of title to, and possession of, the expropriated property; but no
cogent reason appears why said power may not be availed of to impose only a
burden upon the owner of condemned property, without loss of title and
 possession. It is unquestionable that real property may, through expropriation, be
subjected to an easement of right-of-way.

However, a simple right-of-way easement transmits no rights, except the

easement. Vines Realty retains full ownership and it is not totally deprived of the
use of the land. It can continue doing what it wants to do with the land, except
those that would result in contact with the wires.

The acquisition of this easement, nevertheless, is not gratis. Considering

the nature and effect of the installation power lines, the limitations on the use of
the land for an indefinite period deprives private respondents of its ordinary use.
For these reasons, Vines Realty is entitled to payment of just compensation,
which must be neither more nor less than the money equivalent of the property.[17]

It is, therefore, clear that NPCs acquisition of an easement of right-of-way on the lands of
respondents amounted to expropriation of the portions of the latters property for which they are
entitled to a reasonable and just compensation.

The term just compensation had been defined as the full and fair equivalent of the
property taken from its owner by the expropriator. The measure is not the taker's gain, but the
owner's loss. The word just is used to intensify the meaning of the word compensation and to
convey thereby the idea that the equivalent to be rendered for the property to be taken shall be
real, substantial, full, and ample.[18]

In Camarines Norte Electric Cooperative, Inc. v. Court of Appeals[19] and National

Power Corporation v. Manubay Agro-Industrial Development Corporation,[20] this Court
sustained the award of just compensation equivalent to the fair and full value of the property
even if petitioners only sought the continuation of the exercise of their right-of-way easement
and not the ownership over the land. There is simply no basis for NPC to claim that the payment
of fair market value without the concomitant transfer of title constitutes an unjust enrichment.

In fine, the issuance by the RTC of a writ of execution and the notice of garnishment to
satisfy the judgment in favor of respondents could not be considered grave abuse of
discretion. The term grave abuse of discretion, in its juridical sense, connotes capricious,
despotic, oppressive, or whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse must be of such degree as to amount to an evasion of positive duty or a
virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary
and capricious manner by reason of passion and hostility. The word capricious, usually used in
tandem with the term arbitrary, conveys the notion of willful and unreasoning action. Thus,
when seeking the corrective hand of certiorari, a clear showing of caprice and arbitrariness in the
exercise of discretion is imperative.[21] In this case, NPC utterly failed to demonstrate caprice or
arbitrariness on the part of the RTC in granting respondents motion for execution. Accordingly,
the CA committed no reversible error in dismissing NPCs petition for certiorari.

It is almost trite to say that execution is the fruit and the end of the suit and is the life of
the law. A judgment, if left unexecuted, would be nothing but an empty victory for the prevailing
party. Litigation must end sometime and somewhere. An effective and efficient administration of
justice requires that once a judgment has become final, the winning party be not deprived of the
fruits of the verdict. Courts must, therefore, guard against any scheme calculated to bring about
that result. Constituted as they are to put an end to controversies, courts should frown upon any
attempt to prolong them.[22] We, therefore, write finis to this litigation.

WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals
in CA-G.R. SP No. 02065-MIN is AFFIRMED. The temporary restraining order issued by this
Court on July 9, 2008 is LIFTED.

SO ORDERED.

G.R. No. 911 March 12, 1903

MAXIMO CORTES, plaintiff-appellant,

vs.
JOSE PALANCA YU-TIBO, defendant-appellant.

Felipe G. Calderon, for appellant.

Simplicio del Rosario, for appellee.

MAPA, J.:

This suit was brought to obtain an injunction, in accordance with the provisions of section 162 to
172 of the Code of Civil Procedure, for the purpose of restraining the continuation of certain
buildings commenced by the defendant. The court below issued a preliminary injunction during
the trial, but, upon, rendering final judgment, dissolved the injunction, with the costs against the
plaintiff. The latter excepted to this judgment and assigns error:

In the trial the following facts were admitted without contradiction:

(1) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff, has certain
windows therein, through which it receives light and air, said windows opening on the adjacent
house, No. 63 of the same street; (2) that these windows have been in the existence since the year
1843 and (3) that the defendant, the tenant of the said house No. 63, has commenced certain
work with the view to raising the roof of the house in such a manner that one-half of the
windows in said house No. 65 has been covered, thus depriving the building of a large part of the
air and light formerly received through the window. In its decision the court below practically
finds the preceding facts, and further finds that the plaintiff has not proven that he has, by any
formal act, prohibited the owner of house No. 63, from making improvements of any kind
therein at any time prior to the complaint.

The contention of the plaintiff is that by the constant and uninterrupted use of the windows
referred to above during a period of fifty-nine years he acquired from prescription an easement
of light in favor of the house No. 65, and as a servitude upon house No. 63, and, consequently,
has acquired the right to restrain the making of any improvements in the latter house which
might in any manner be prejudicial to the enjoyment of the said easement. He contends that the
easement of light is positive; and that therefore the period of possession for the purposes of the
acquisition of a prescriptive title is to begin from the date on which the enjoyment of the same
commenced, or, in other words, applying the doctrine to this case, from the time that said
windows were opened with the knowledge of the owner of the house No. 63, and without
opposition on this part.

The defendant, on the contrary, contends that the easement is negative, and that therefore the
time for the prescriptive acquisition thereof must begin from the date on which the owner of the
dominant estate may have prohibited, by a formal act, the owner of the servient estate from doing
something which would be lawful but for the existence of the easement.

The court below in its decision held in the easement of light is negative, and this ruling has been
assigned by the plaintiff as error to be corrected by this court.

A building may receive light in various manners in the enjoyment of an easement of light,
because the openings through which the light penetrates may be made in one's own wall, in the
wall of one's neighbor, or in a party wall. The legal doctrine applicable in either one of these
cases is different, owing to the fact that, although anyone may open windows in his own wall, no
one has a right to do so in the wall of another without the consent of the owner, and it is also
necessary, in accordance with article 580 of the Civil Code, to obtain the consent of the other
coowner when the opening is to be made in a party wall.

This suit deals with the first case; that is, windows opened in a wall belonging to the wife of the
plaintiff, and it is this phase of the easement which it is necessary to consider in this opinion.

When a person opens windows in his own building he does nothing more than exercise an act of
ownership inherent in the right of property, which, under article 348 of the Civil Code,
empowers him to deal with his property as he may see fit, with no limitations other than those
established by law. By reason of the fact that such an act is performed wholly on a thing which is
wholly the property of the one opening the window, it does not in itself establish any easement,
because the property is used by its owner in the exercise of dominion, and not as the exercise of
an easement: "For a man," says law 13, title 31, third partida, "should not use that which
belongs to him as if it were a service only, but as his own property." Coexistent with this right is
the right of the owner of the adjacent property to cover up such windows by building on his own
land or raising a wall contiguously to the wall in which the windows are opened (art. 581 of the
same Code), by virtue of the reciprocity of rights which should exist between abutting owners,
and which would cease to exist if one could do what he pleased on his property and the other
could not do the same on his. Hence it is that the use of the windows opened in a wall of one's
own property, in the absence of some covenant or express agreement to the contrary, is regarded
as an act of mere tolerance on the part of the owner of the abutting property (judgments of the
supreme court of Spain of the 17th of May, 1876; 10th of May, 1884; 30th of May, 1890), and
does not create any right to maintain the windows to the prejudice of the latter (judgment of the
supreme court of Spain of the 13th of June, 1877). The mere toleration of such an act does not
imply on the part of the abutting owner a waiver of his right to freely build upon his land as high
as he may see fit, nor does it avail the owner of the windows for the effects of possession
according to article 1942 of the Civil Code, because it is a mere possession at will. From all this
it follows that the easement of light with respect to the openings made in one's own edifice does
not consist precisely in the fact of opening them or using them, inasmuch as they may be covered
up at any time by the owner of the abutting property, and, as Manresa says in his commentaries
on the Civil Code, "there is no true easement as long as the right to impede its use exists." The
easement really consists of in prohibiting or restraining the adjacent owner from doing anything
which may tend to cut off or interrupt the light; in short, it is limited to the obligation of not
impeding the light (ne luminibus officiatur). The latter coincides in its effects, from this point of
view, with the obligation of refraining from increasing the height of a building (altius non
tollendi), which, although it constitutes a special easement, has for its object, at times, the
prevention of any interruption of the light enjoyed by the adjacent owner.

It will be readily observed that the owner of the servient estate subject to such easement is under
no obligation whatsoever to allow anything to be done on his tenement, nor to do anything there
himself, but is simply restrained from doing anything thereon which may tend to cut off the light
from the dominant estate, which he would undoubtedly be entitled to do were it not for the
existence of the easement. If, then, the first condition is that which is peculiar to positive
easements, and the second condition that which is peculiar to negative easements, according to
the definition of article 533 of the Civil Code, it is our opinion that the easement of lights in the
case of windows opened in one's own wall is of a negative character, and, as such, can not be
acquired by prescription under article 538 of the Civil Code, except by counting the time of
possession from the date on which the owner of the dominant estate may, by a formal act have
prohibited the owner of the servient estate from doing something which it would be lawful from
him to do were it not for the easement.

The supreme court of Spain, in its decisions upon this subject, has established these principles by
a long line of cases. In its judgment of May 14, 1861, the said court holds that "the prescription
of the easement of lights does not take place unless there has been some act of opposition on the
part of the person attempting to acquire such a right against the person attempting to obstruct its
enjoyment." The easements of light and view," says the judgment of March 6, 1875, "because
they are of a negative character, can not be acquired by a prescriptive title, even if continuous, or
although they may have been used for more than twenty-eight years, if the indispensable
requisite for prescription is absent, which is the prohibition on the one part, and the consent on
the other, of the freedom of the tenement which it is sought to charge with the easement." In its
judgment of June 13, 1877, it is also held that use does not confer the right to maintain lateral
openings or windows in one's own wall to the prejudice of the owner of the adjacent tenement,
who, being entitled to make use of the soil and of the space above it, may, without restriction,
build on his line or increase the height of existing buildings, unless he has been " forbidden to
increase the height of his buildings and to thus cut off the light," and such prohibition has been
consented to and the time fixed by law subsequently expired. The court also holds that it is error
to give the mere existence or use of windows in a wall standing wholly on the land of one
proprietor the creative force of true easement, although they may have existed from the time
immemorial. Finally, the judgments of the 12th of November, 1899, and the 31st of May, 1890,
hold that "as this supreme court has decided, openings made in walls standing wholly on the land
of one proprietor and which overlook the land of another exist by mere tolerance in the absence
of an agreement to the contrary, and can not be acquired by prescription, except by computing
the time from the execution of some act of possession which tends to deprive the owner of the
tenement affected of the right to build thereon." Various other judgments might be cited, but we
consider that those above mentioned are sufficient to demonstrate the uniformity of the decisions
upon this point. It is true that the supreme court of Spain, in its decisions of February 7 and May
5, 1896, has classified as positive easements of lights which were the object of the suits in which
these decisions were rendered in cassation, and from these it might be believed at first glance
that the former holdings of the supreme court upon this subject had been overruled. But this is
not so, as a matter of fact, inasmuch as there is no conflict between these decisions and the
former decisions above cited.

In the first of the suits referred to, the question turned upon two houses which had formerly
belonged to the same owner, who established a service of light on one of them for the benefit of
the other. These properties were subsequently conveyed to two different persons, but at the time
of the separation of the property nothing was said as to the discontinuance of the easement, nor
were the windows which constituted the visible sign thereof removed. The new owner of the
house subject to the easement endeavored to free it from the incumbrance, notwithstanding the
fact that the easement had been in existence for thirty-five years, and alleged that the owner of
the dominant estate had not performed any act of opposition which might serve as a starting
point for the acquisition of a prescriptive title. The supreme court, in deciding this case, on the
7th of February, 1896, held that the easement in this particular case was positive, because it
consisted in the active enjoyment of the light. This doctrine is doubtless based upon article 541
of the Code, which is of the following tenor: "The existence of apparent sign of an easement
between two tenements, established by the owner of both of them, shall be considered, should
one be sold, as a title for the active and passive continuance of the easement, unless, at the time
of the division of the ownership of both tenements, the contrary should be expressed in the deed
of conveyance of either of them, or such sign is taken away before the execution of such deed."

The word "active" used in the decision quoted in classifying the particular enjoyment of light
referred to therein, presupposes on the part of the owner of the dominant estate a right to such
enjoyment arising, in the particular case passed upon by that decision, from the voluntary act of
the original owner of the two houses, by which he imposed upon one of them an easement for the
benefit of the other. It is well known that easements are established, among other cases, by the
will of the owners. (Article 536 of the Code). It was an act which was, in fact, respected and
acquiesced in by the new owner of the servient estate, since he purchased it without making any
stipulation against the easement existing thereon, but, on the contrary, acquiesced in the
continuance of the apparent sign thereof. As is stated in the decision itself, "It is a principle of
law that upon a division of a tenement among various persons -- in the absence of any mention in
the contract of a mode of enjoyment different from that to which the former owner was
accustomed -- such easements as may be necessary for the continuation of such enjoyment are
understood to subsist." It will be seen, then, that the phrase "active enjoyment" involves an idea
directly opposed to the enjoyment which is the result of a mere tolerance on the part of the
adjacent owner, and which, as it is not based upon an absolute, enforceable right, may be
considered as of a merely passive character. Therefore, the decision in question is not in conflict
with the former rulings of the supreme court of Spain upon the subject, inasmuch as it deals with
an easement of light established by the owner of the servient estate, and which continued in force
after the estate was sold, in accordance with the special provisions of article 541 of the Civil
Code.

Nor is the other decision cited, of May 5, 1896, in conflict with the doctrine above laid down,
because it refers to windows opened in a party wall, and not in a wall the sole and exclusive
property of the owner of the dominant tenement, as in the cases referred to by the other
decisions, and as in the case at bar. The reason for the difference of the doctrine in the one and
the other case is that no part owner can, without the consent of the other, make in a party wall a
window or opening of any kind, as provided by article 580 of the Civil Code. The very fact of
making such openings in such a wall might, therefore, be the basis for the acquisition of a
prescriptive title without the necessity of any active opposition, because it always presupposes
the express or implied consent of the other part owner of the wall, which consent, in turn, implies
the voluntary waiver of the right of such part owner to oppose the making of such openings or
windows in such a wall.

With respect to the provisions of law 15, title 31, third partida, which the appellant largely relied
upon in this oral argument before the court, far from being contrary to it, is entirely in accord
with the doctrine of the decisions above referred to. This law provides that "if anyone shall open
a window in the wall of his neighbor, through which the light enters his house," by this sole fact
he shall acquire a prescriptive title to the easement of light, if the time fixed in the same law (ten
years as to those in the country and twenty years as to absentees) expires without opposition on
the part of the owner of the wall; but, with the exception of this case, that is to say, when the
windows are not opened in the wall of the neighbor, the law referred to requires as a condition to
the commencement of the running of the time for the prescriptive acquisition of the easement,
that "the neighbor be prohibited from raising his house, and from thereby interrupting the light."
That is to say, he must be prohibited from exercising his right to build upon his land, and cover
the window of the other. This prohibition, if consented to, serves as a starting point for the
prescriptive acquisition of the easement. It is also an indispensable requisite, therefore, in
accordance with the law of thepartidas, above mentioned, that some act of opposition be
performed, in order that an easement may be acquired with respect to openings made in one's
own wall.

For a proper understanding of this doctrine, it is well to hold in mind that the Code of
the partidas, as well as the Roman law, clearly distinguishes two classes of easements with
respect to the lights of houses, as may be seen in law 2 of title 31, of the third partida. One of
them consists in "the right to pierce the wall of one's neighbor to open a window through which
the light may enter one's house" (equivalent to the so-called easement of luminum of the
Romans); the other is "the easement which one house enjoys over another, whereby the latter can
not at any time be raised to a greater height than it had at the time the easement was established,
to the end at the light be not interrupted." (Ne luminibus officiatur.) For the prescriptive
acquisition of the former the time must begin, as we have seen, from the opening of the
window in the neighbor's wall. As to the second, the time commences from the date on which he
was "prevented from raising his house." Some of the judgments which establish the doctrine
above laid down were rendered by the supreme court of Spain interpreting and applying the
above cited law 15, title 31, partida 3, and therefore they can not in any sense be regarded as
antagonistic to the law itself.

The question as to whether the windows of the house of the plaintiff are, or are not, so-called
regulation windows, we consider of but little importance in this case, both because the authority
of the decisions of the law of thepartidas, above cited, refers to all kinds of windows, and not to
regulation windows solely, and because the record does not disclose, nor has the appellant even
stated, the requirements as to such regulation windows under the law in operation prior to the
Civil Code, which he asserts should be applied and on which he relies to demonstrate that he has
acquired by prescription the easement in question. With respect to the watershed which,
according to the plaintiff, exists over the window in question, the record does not disclose that
the same has been destroyed by the defendant. He expressly denies it on page 7 of his brief, and
affirms (p. 8) that the tenant of the appellant's property himself removed it, by reason of the
notice served on him; on the other hand, the judgment of the court below contains no findings
with respect to this fact, nor does it disclose the former existence of any such watershed.
Furthermore, the opinion which we have formed with respect to this matter, in so far as we are
able to understand the merits of the case, is that this shed was a mere accessory of the window,
apparently having no other purpose than that of protecting it against the inclemency of the
weather; this being so, we are of opinion that it should follow the condition of the window itself,
in accordance with the legal maxim that the accessory always follows the principal. The
appellant contends that the shed should be regarded as a projection within the provisions of
article 582 of the Code; but it is sufficient to observe that this article speaks of windows with
direct views, balconies, or similar projections, in order to conclude that the article does not refer
to such watersheds, which have not the slightest degree of similarity to balconies, nor are they
constructed for the purpose of obtaining the view -- this being the subject-matter which this
article expressly purports to control -- inasmuch as such sheds have rather the effect of limiting
the scope of the view than of increasing it.

The fact that the defendant did not cover the windows of the other house adjacent No. 63 at the
time he covered the windows of the appellant, a fact which the latter adduces as proof of the
recognition on the part of the former of the prescriptive acquisition of the easement of the light in
favor of that house, which, according to his statement, is under precisely the same conditions as
the house of the plaintiff, does not necessarily imply, in our opinion, any such recognition, as it
might be the result of a mere tolerance on the part of the defendant. Certainly the fact of his
tolerating the use by the owner of that house of such windows, supposing the facts to be as
stated, does not carry with it as a result an obligation to exercise the same forbearance with
respect to the plaintiff; but whatever may be the legal status of the windows in the house referred
to with respect to the house No. 63, we cannot pass upon the point, nor can we form suppositions
concerning the matter for the purpose of drawing conclusions of any kind therefrom to support
our opinion, for the simple reason that it is not a point at issue in the case, and more especially
because the defendant not only denied the existence of the alleged easement of light in favor of
the house referred to, but, on the contrary, he affirms that demand has been made that the
windows in said house be closed, as may be seen on page 8 of his brief.

The point discussed in this trial being whether the plaintiff has acquired the easement which he
seeks to enforce over the house of which the defendant is tenant, it is evident that the provisions
of article 585 of the Civil Code can not be invoked without taking for granted the very point at
issue. This article refers to cases in which, under any title, the right has been acquired to have
direct views, balconies, or belvederes over contiguous property. The existence of such a right
being the very point at issue, the supposition upon which the article rests is lacking, and it is
therefore not in point.

As a result of the opinion above expressed, we hold:

1. That the easement of light which is the object of this litigation is of a negative character, and
therefore pertains to the class which can not be acquired by prescription as provided by article
538 of the Civil Code, except by counting the time of possession from the date on which the
owner of the dominant estate has, in a formal manner, forbidden the owner of the servient estate
to do an act which would be lawful were it not for the easement.

2. That, in consequence thereof, the plaintiff, not having executed any formal act of opposition to
the right of the owner of the house No. 63 Calle Rosario (of which the defendant is tenant), to
make therein improvements which might obstruct the light of the house No. 65 of the same
street, the property of the wife of the appellant, at any time prior to the complaint, as found by
the court below in the judgment assigned as error, he has not acquired, nor could he acquire by
prescription, such easement of light, no matter how long a time have elapsed since the windows
were opened in the wall of the said house No. 65, because the period which the law demands for
such prescriptive acquisition could not have commenced to run, the act with which it must
necessarily commence not having been performed.

Therefore, we affirm the judgment of the court below and condemn the appellant to the payment
of all damages caused to the plaintiff, and to the payment of the costs of this appeal. So ordered.

Arellano, C.J., Cooper, Willard, and Ladd, JJ., concur.

Torres, J., did not sit in this case.

ON MOTION FOR A REHEARING.

The plaintiff asks for a rehearing of the decision of the court of March 12th last upon the ground
that the same contains error:
First, because the decision holds that the window opened in the plaintiff's own wall and
watershed do not constitute the continuous and apparent easements of prospect, light, and
ventilation, or jus projitiendi and jus spillitiendi, this ruling being in opposition to the provisions
of laws 12, 14, and 15, title 31, third partida, and articles 530, 532, 533, 537, 538, 582, and 585
of the Civil Code.

This allegation is entirely unfounded, inasmuch as the decision of the court contains no
declaration as to whether the windows and watershed do or do not constitute continuous and
apparent easements, or jus projitiendi and jus spillitiendi. These questions were not drawn into
issue by the complaint, and therefore any decision thereon one way or the other would have been
mere dicta. What the court did hold was that the easement of light, when it is sought to claim
such benefit from a window opened in one's own wall, as does the appellant with respect to the
tenement of the defendant, belongs to the class of negative easements, and that on hold on that
account the time of possession for prescriptive acquisition of the title thereto must be counted,
not from the time of the opening of the windows, but from the time at which the owner thereof
has executed some act of opposition tending to deprive the owner of the servient tenement of his
right, under the law, build upon it to such height as he might see fit in the legitimate use of his
rights of ownership. With respect to the watershed, the court held that the shed in question in the
case is not included within the class of projections referred to in article 582 of the Civil Code,
and certain it is that neither this article nor any of the other provisions of law cited by the
appellant in his motion papers established any doctrine contrary to that laid down in the decision,
either with regard to the watershed or with respect to the windows. It is not necessary to say
anything further upon this point. It is sufficient to read the text of the laws cited to reach the
conclusion that the assertion made by the appellant in his motion papers is entirely gratuitous.

Article 582 provides that windows with direct views, balconies, or other similar projections
opening upon the tenement of one's neighbor are not permissible unless there are two meters
distance between the wall in which such openings are constructed and the adjacent tenement.
From this the appellant draws the conclusion that he who opens windows in his own wall without
respecting the distance mentioned does not exercise an act of ownership, as stated in the
decision, inasmuch as he violates an express provisions of the law.

The conclusion reached is evidently false. The appellant confounds the facts with the law -- an
act of ownership with the right of ownership. The owner of a thing does not cease to be such
owner because in his manner of use or enjoyment thereof he violates some provision of law. The
acts which he performs, in our opinion, even if abusive or contrary to law, are in a strict sense
acts of ownership, acts in the exercise of dominion, because this character is not derived from a
greater or less degree of compliance with the provisions of law, but from the existence of the
status of owner on the part of the person who exercises such acts. In order that the act performed
by the owner of a wall in opening windows therein be a true act of ownership it is a matter of
indifference whether or not the distance prescribed by article 582 of the Code has been respected,
although, considered from a legal point of view, it might be an illegal act, as not complying with
the conditions imposed by law.

The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to the effect that "a
man should not use that which belongs to him as if it were a service only, but as his own
property" is of general application, and does not refer to the easements which is a property owner
may establish for the benefit of his heirs, as is erroneously believed by the appellant. The very
same law provides that easements which "a man imposes upon his house must be for the benefit
of the tenement or thing of another, and not that of his own tenement;" and this is because things
are of service to their owner by reason of dominion, and not in the exercise of a right of
easement. "Res sua," says a legal maxim, "nemini jure servitutis servit."

The provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated
procedure no effect with respect to possession is applicable as much as to the prescription of real
rights as to the prescription of the fee, it being a glaring and self-evident error to affirm the
contrary, as does the appellant in his motion papers. Possession is the fundamental basis of the
prescription. Without it no kind of prescription is possible, not even the extraordinary.
Consequently, if acts of mere tolerance produce no effect with respect to possession, as that
article provides, in conformity with article 444 of the same Code, it is evident that they can
produce no effect with respect to prescription, whether ordinary or extraordinary. This is true
whether the prescriptive acquisition be of a fee or of real rights, for the same reason holds in one
and the other case; that is, that there has been no true possession in the legal sense of the word.
Hence, it is because the use of windows in one's own wall is the result of a mere tolerance that
the supreme court of Spain, in its judgment of June 13, 1877, has held that such user lacks the
creative force of a true easement, although continued from time immemorial. The citation of
article 1959 of the Civil Code and of law 21, title 29, partida 3, made by the petitioner, is
therefore not in point, because both of these provisions of law, which refer to the extraordinary
period of prescription presuppose possession as a necessary requisite, even if without either just
title or good faith.

The second error assigned is that in the decision the court holds that the gravamina constituted
by the window and the projection are negative easements, against the provisions of article 533,
which define them as positive, which definition, he adds, is supported by the judgments of the
supreme court of Spain of February 7 and May 5, 1896, cited in paragraph 12 of the said
decision, which judgments declare that the easement resulting from a window is positive.

It is not true that article 533 of the Civil Code says that the easement of light is positive, because
it does nothing more than give in general terms the definition of positive easements and negative
easements, without attempting to specify whether the easement of lights pertains to the first or to
the second class. We have declared that the easement is negative, having in mind this very
definition of the Code and the doctrine established by the judgments of the supreme court of
Spain which have been cited in our opinion. The interpretation which the appellant attempts to
give the article of the Civil Code cited is evidently erroneous and, consequently, the citation
made by him in support of his contention is not in point.

Our opinion of the true extent and meaning of the judgments of the supreme court of Spain of
February 7 and May 5, 1896, has been already sufficiently explained, and it is therefore
unnecessary to go into the subject again here. We refer to our decision with respect to what was
said therein upon this subject.
The decision of the court does not contain the declaration, as gratuitously assumed by the
appellant, that the easement resulting from a projection is of a negative character; nor, in fact,
had we any occasion to make such a declaration, in view of the nature of the issues raised and
discussed during the trial. What we did, indeed, hold was that the watershed mentioned in the
complaint, the purpose of which was simply to protect the window in question from sun and rain,
was a mere accessory to that window, and that in no case could it be considered as a projection
within the provisions of article 582 of the Civil Code, as so erroneously contended by the
appellant at the trial. We find nothing in his motion papers which can in any way weaken this
holding.

The third error is assigned is that the court holds that the easement of light, as negative, can not
be acquired by prescription except by counting the period of possession from the time at which
the owner of the servient tenement has been prohibited from making improvements which might
interfere with said easement, contrary to the provisions of law 14, title 31, partida 3, and articles
538 and 585 of the Civil Code, which establish the contrary.

This assertion is entirely destitute of foundation, inasmuch as neither in the law of

the partidas nor in the articles of the Civil Code mentioned is to be found the doctrine which the
appellant arbitrarily seeks to deduce from them. It is sufficient to read the text to reach the
conclusion that the assertion is wholly gratuitous.

The fourth error assigned is that the court holds that the watershed, as being an accessory of the
window, can not in itself constitute an easement, this being contrary to the provisions of articles
582 and 585 of the Civil Code, and law 2, title 31, partida 3, which do not make any such
distinction.

Neither of the law cited speaks expressly of watersheds. We have held that article 582 refers
solely to windows, balconies, and other similar projections, and that the watershed in question
does not pertain to this class of projections, our holding being based upon the reasons given in
our decision. The appellant advances no argument worthy of serious consideration, and therefore
we continue to believe that our opinion in this matter is strictly in accordance with the law.

The appellant has attached to his motion for a rehearing two judgments, one rendered by the
Royal Audiencia of Manila September 6, 1877, and the other by the supreme court of Spain on
the 22d of February, 1892, and we think it well to say a few words concerning them.

In the opinion of the appellant these judgments support the theory contended for by him at the
trial, that the easement of lights is positive and not negative. His error in so believing is evident,
inasmuch as neither of the judgments referred to establishes any such doctrine. On the contrary,
it appears clear, from the first of these judgments, that the easement referred to is negative in the
opinion of the court which rendered it. This appears from the eight conclusion of law therein,
which is literally as follows: "From the evidence introduced by the defendant, and even from the
testimony of witnesses of the plaintiff, it has been proven that since 1828 the house in question
has suffered no change or alteration in its roof, which projects over Cosio's lot, which constitutes
the active opposition necessary in order to acquire by prescription the right to the light." It will
be seen, then, that the latter part of the preceding transcript of the conclusion of law days down
precisely the same doctrine as that expressed in our decision -- that active opposition is a
necessary condition for prescriptive acquisition of an easement of light. And this also
demonstrates conclusively that the court which rendered the judgment referred to considered the
easement to be negative, inasmuch as positive easements do not require any active opposition as
a basis for their prescriptive acquisition, such an act being solely necessary to the prescription of
negative easements.

It would appear, judging from his allegations as a whole, that the appellant confuses positive
easements with continuous easements, and the judgments referred to, in fact, declares in its
fourth conclusion of law that the easement of light is continuous. If these were really so the error
of the appellant would be manifest, because continuity is not a quality exclusively peculiar to
positive easements; there are negative easements which are also continuous. Hence if is that the
Civil Code, after classifying easements, in article 532, as continuous and discontinuous,
classifies them also as positive and negative (art. 533), thus giving to understand that this latter
classification depends upon other characteristics entirely distinct from the continuity or
discontinuity of easements. If all continuous easements were positive and all discontinuous
easements were negative, then the express division of easements into positive and negative made
by the Code, after establishing the division of the same as continuous or discontinuous, would be
entirely unnecessary, as they would be entirely merged or included in the latter classification. It
is sufficient to read the text of the Code to understand beyond the possibility of a doubt that a
negative easement may be continuous, and that a positive easement may be discontinuous,
according to the special nature of each one.

With respect to the second judgment -- the judgment of the supreme court of Spain of February
22, 1892 -- it is certainly difficult to understand how the appellant could have imagined that he
had found therein the slightest ground for his contention, inasmuch as it lays down no doctrine
which relates even inference to the subject of easements, and simply holds, in the first of only
two paragraphs in which its conclusions are contained, that "judgments should be clear, precise,
and responsive to the complaint and the issues properly raised at the trial;" and in the second,
that "the judgment appealed was contradictory as to the questions it decides, because it makes
certain declarations favorable to some of the contentions in the plaintiff's complaint and then
gives judgment for the defendant, without making any distinction." It was for this reason alone,
and for no other, that the judgment appealed was reversed and annulled. In the judgment
rendered by the same supreme court upon the merits of the case, as a result of this decision in
cassation, no other doctrine is laid down than that "the judgment must be that the defendant
comply with those claims advanced by the complaint to which he was consented, and that he
must be discharged as to those allegations which have been denied by him and which have not
been proved by the plaintiff."

There is not one word on these judgments which says that the easement of lights is positive, nor
that a watershed constitutes a true projection within the meaning attached to this word in article
582 of the Civil Code, as has been vainly contended by the appellant in the trial.

Therefore the appellant's motion for a rehearing of the decision of March 12, 1903, is denied.
Arellano, C.J., Cooper, Willard and Ladd, JJ., concur.
Torres and McDonough, JJ., did not sit in this case.

ON MOTION FOR WRIT OF ERROR TO REMOVE THE CASE TO THE SUPREME

COURT OF THE UNITED STATES.

WILLARD, J.:

The application to this court for the allowance of a writ of error or appeal for the purpose of
removing this case to the Supreme Court of the United States is denied.

Section 10 of the act of Congress of July 1, 1902, is as follows:

SEC. 10. That the Supreme Court of the United States shall have jurisdiction to review,
revise, reverse, modify, or affirm the final judgments and decrees of the Supreme Court
of the Philippine Islands in all actions, cases, causes, and proceedings now pending
therein or hereafter determined thereby in which the Constitution or any statute, treaty,
title, right, or privilege of the United States is involved, or in causes in which the value in
controversy exceeds twenty-five thousand dollars, or in which the title or possession of
real estate exceeding in value the sum of twenty-five thousand dollars, to be ascertained
by the oath of either party or of other competent witnesses, is involved or brought in
question; and such final judgments or decrees may and can be reviewed, revised,
reversed, modified, or affirmed by said Supreme Court of the United States on appeal or
writ of error by the party aggrieved, in the same manner, under the same regulations, and
by the same procedure, as far as applicable, as the final judgments and decrees of the
circuit courts of the United States.

There is no question in the case relating to the Constitution or any statute of the United States.
The evidence submitted by the applicant shows that the value of his property over which the
litigation turns is $11,867.70, money of the United States.

The fact that the plaintiff owns other houses in different parts of the city as to which he claims an
easement of light similar to the one claimed in this case, that the decision in this case destroys all
of these claimed easements, and that the value of those other houses exceeds $25,000, gold, is
not important. The test is the value of the matter in controversy. The matter in controversy here
was the easement of light and air over the property No. 63 Calle del Rosario and in favor of
house No. 65. That easement could not be worth more than the house itself.

The easements in favor of other houses of the plaintiff over other lots than No. 63 were not in
controversy in this suit. (Town of Elgin vs. Marshall, 106 U. S., 578.) So ordered.