1.

SOLID MANILA CORPORATION, petitioner, vs. BIO HONG TRADING CO., INC.
and COURT OF APPEALS, respondents.

FACTS:
Solid Manila Corporation owns a parcel of land located in Emita, Manila. The same
parcel of land lies in the vicinity of another parcel of land belonging to Bio Hong Trading Co. In
the deed of sale conveying the land of Bio Hong to them is an annotation which states the
reservation of an easement of way. In the annotation, it was stated that the alley shall remain
open at all times, no obstructions shall be placed thereon and that the owner shall allow the
public to use the same. Solid Manila Corp and other residents of the neighboring estates has
been using the alley ever since and they contributed to its maintenance. However, in 1983, Bio
Hong Trading Co. constructed steel gates that hampered others from using said alley. Hence,
petitioner filed a suit against respondent. In its answer, respondent alleges that the easement
has been extinguished by virtue of a merger in the same person of the dominant and servient
estates, the petitioner has another adequate outlet and that the petitioner has not shown that
the right of way lies at the point least prejudicial to the servient estate.
ISSUE:
Whether or not an easement exists on the property.
HELD:
Affirmative. The construction of the steel gates by respondent is a violation of the
deed of sale and the servitude of way. The Court of Appeals erred when it ruled that since the
private respondent owns the land where the easement lies, it had every right to close the alley
and that an easement can not impair ownership. Solid Manila Corp. is not claiming the
easement or any part of the property but is rather seeking to have private respondent respect
the easement already existing thereon.
Servitudes are merely accessories to the tenements of which they form part. The fact,
however, that the alley in question is inseparable from the main lot is immaterial to defeat
petitioners claim. Even if private respondent owns the property, it did not acquire the right to
close that alley or put up obstructions to prevent the public from using such alley.
Respondents contention regarding the merger does not apply in the case here since the
servitude spoken of here is a personal servitude. In a personal servitude, there is no owner of
a dominant servient and the easement pertains to persons without a dominant estate or in this
case, the general public.

PRESIDENTIAL DECREE No. 1067 December 31, 1976

A DECREE INSTITUTING A WATER CODE, THEREBY REVISING AND CONSOLIDATING
THE LAWS GOVERNING THE OWNERSHIP, APPROPRIATION, UTILIZATION,
EXPLOITATION, DEVELOPMENT, CONSERVATION AND PROTECTION OF WATER
RESOURCES
Article 50. Lower estates are obliged to receive the waters which naturally and without the
intervention of man flow from the higher estate, as well as the stone or earth which they carry
with them.
The owner of the lower estate cannot construct works which will impede this natural flow,
unless he provides an alternative method of drainage; neither can the owner of the higher
estate make works which will increase this natural flow.
Article 51. The banks of rivers and streams and the shores of the seas and lakes throughout
their entire length and within a zone of three (3) meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in forest areas, along their margins are subject to the
easement of public use in the interest of recreation, navigation, floatage, fishing and salvage.
No person shall be allowed to stay in this zone longer than what is necessary for recreation,
navigation, floatage, fishing or salvage or to build structures of any kind.

2.

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

HEIRS OF MAGDALENO VALDEZ SR., respondents.

FACTS:
Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez etc.
purchased from Feliciana Santillan a parcel of unregistered land with an area of one hectare,
34 ares and 16 centares, located in Barrio Dayhagon, Medellin, Cebu. He took possession of
the property and declared it for tax purposes in his name. 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. 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.
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.
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.
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.
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.
ISSUE:
Whether or not petitioner acquired ownership of the easement through prescription.
HELD:

NEGATIVE. 30-year extraordinary prescriptive period had not yet been complied and
there was neither laches.
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.
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.
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 30year period of extraordinary acquisitive prescription started from that year.
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. 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.
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.
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.
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.
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.
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; and it is discontinuous if it is used at intervals and depends on the
act of man, like the easement of right of way.
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 nonapparent. 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.
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.

3.

COSTABELLA CORPORATION, petitioner, vs. COURT OF APPEALS,

KATIPUNAN LUMBER CO., INC., AURORA BUSTOS LOPEZ, MANUEL S.
SATORRE, JR., JOSEFA C. REVILLES, FELIX TIUKINHOY, JR., PERFECTA L.
CHUANGCO, and CESAR T. ESPINA, respondents.

The convenience of the dominant estate is not the gauge for the grant of compulsory right of
way but rather, it should satisfy all four requisites (emphasis on 1st requisite- it should be
merely for convenience but it must be due to the fact that the dominant estate does not have
an adequate outlet to a public highway.
FACTS:
It is admitted that the petitioner owns the real estate properties designated as Lots
Nos. 5122 and 5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu
City, on which it had constructed a resort and hotel. The private respondents, on the other
hand, are the owners of adjoining properties more particularly known as Lots Nos. 5123-A and
5123-C of the Opon Cadastre.
Petitioners owned a lot wherein they started constructing their beach hotel. Before
such construction, the private respondent, in going to and from their respective properties and
the provincial road, passed through a passageway which traversed the petitioners property.
As a result of the construction, this passageway, including the alternative route, was
obstructed. Private respondent filed for injunction plus damages. In the same complaint the
private respondents also alleged that the petitioner had constructed a dike on the beach
fronting the latters property without the necessary permit, obstructing the passage of the
residents and local fishermen, and trapping debris of flotsam on the beach. The private
respondent also claim that the have acquired the right of way through prescription. They
prayed for the re-opening of the ancient road right of way (what they called the supposed
easement in this case) and the destruction of the dike. Petitioner answered by saying that their
predecessor in interests act of allowing them to pass was gratuitous and in fact, they were just
tolerating the use of the private respondents. CA ruled in favor of the private respondents.
ISSUE:
1) Whether or not easement of right and way can be acquired through prescription?
2) Whether or not the private respondents had acquired an easement of right of way
in the form of a passageway, on the petitioners property?
RULING:

1) NO. Easement of right of way is discontinuous thus it cannot be subject to

acquisitive prescription.
2) NO. one may validly claim an easement of right of way when he has proven the:
(1) the dominant estate is surrounded by other immovables and has no adequate
outlet to a public highway; (2) proper indemnity has been paid; (3) the isolation was
not due to acts of the proprietor of the dominant estate; (4) the right of way claimed is
at point least prejudicial to the servient estate. The private respondent failed to prove
that there is no adequate outlet from their respective properties to a public highway; in
fact the lower court confirmed that there is another outlet for the private respondents
to the main road (yet they ruled in favor of the private respondents). Apparently, the
CA lost sight of the fact that the convenience of the dominant estate was never a
gauge for the grant of compulsory right of way. There must be a real necessity and
not mere convenience for the dominant estate to acquire such easement. Also, the
private respondents made no mention of their intention to indemnify the petitioners.
The SC also clarified that least prejudicial prevails over shortest distance (so
shortest distance isnt necessarily the best choice.)

4.

JUAN GARGANTOS, petitioner, vs. TAN YANON and THE COURT OF APPEALS,
respondents.

Facts:
Francisco Sanz was the owner of an 888 sq m land in Romblon, with buildings and
improvements thereon. He subdivided the lot into three and sold them. One was sold to
Guillermo Tengtio who sold it to Vicente Uy Veza; the 2nd was to Tan Yanon (Respondent)
with doors and windows overlooking the 3rd side; and 3rd to Juan Gargantos, which has a
camarin and small building included therein.
Gargantos applied for two Municipal Mayors permits, 1 was to demolish the roof of
old camarin, the other one was for him to construct a combined residential house and
warehouse on his lot, which Tan Yanon is now opposing. The construction of such building
would prevent Tan Yanon from receiving light and view through the window of his house,
unless the building be erected at a distance not less than 3 meters from the boundary line
between the lots of plaintiff and defendant, and to enjoin the members of the municipal council
of Romblon from issuing the corresponding building permit in conformity with Art 673 on the
New Civil Code.
Issue:
Whether or not the property of Tan Yanon has an easement of light and view against
the property of petitioner Gargantos?
Decision:
Respondent Tan Yanon has an easement of light and view against Gargantos property.
Ratio:
Although petitioner Gargantos claims that the respondent never acquired of any
easement (by title or presicription), since there should be a deed representing it by virtue of
Article 621 of the New Civil Code. This is not applicable in this case, as the land and houses
were formerly owned by just one person, without the need for easements.
Art. 624 provides that the existence of an apparent sign of easement between two
estates, established by the proprietor of both, shall be considered, if one of them is alienated,
as a title so that the easement will continue actively and passively, unless at the time the
ownership of the two estate is divided, the contrary is stated in the deed of alienation of either
of them, or the sign is made to disappear before the instrument is executed.. The existence of
the doors and windows on the northeastern side of the aforementioned house is equivalent to
a title, for the visible and permanent sign of an easement is the title that characterizes its
existence. It should be noted, however, that while the law declares that the easement is to
"continue" the easement actually arises for the first time only upon alienation of either estate,

inasmuch as before that time there is no easement to speak of, there being but one owner of
both estates.

5.

EDUARDO C. TAEDO, petitioner, vs. HON. JUANITO A. BERNAD, Presiding

Judge of the Regional Trial Court, 7th Judicial Region, Branch XXI, Cebu City;
Spouses ROMEO SIM and PACITA S. SIM; and Spouses ANTONIO CARDENAS
and MAE LINDA CARDENAS, respondents.

FACTS:
Private respondent Antonio Cardenas (Cardenas) was the owner of two (2)
contiguous parcels of land situated in Cebu City known as Lot 7501-A and Lot 7501-B. An
apartment building was constructed on Lot 7501-A is in which a small portion of it also stands
on Lot 7501-B. On Lot 7501-B, the improvements therein consist of a four-door apartment,
two-storey house, a bodega and a septic tank for the common use of the occupants of Lots
7501-A and 7501-B. Cardenas sold Lot 7501-A to petitioner Eduardo Taedo (Taedo) and
also mortgaged Lot 7501-B to the latter with a promise to sell the same.
However, Cardenas sold Lot 7501-B to respondent spouses Romeo and Pacita Sim.
Taedo offered to redeem the property from Romeo Sim, but the latter refused. Instead,
Romeo Sim blocked the sewage pipe connecting the building of Taedo built on Lot 7501-A, to
the septic tank in Lot 7501-B. He also asked Taedo to remove that portion of his building
enroaching on Lot 7501-B.
Consequently, Taedo, invoking the provisions of Art. 1622 of the Civil Code, filed an
action for legal redemption and damages against the spouses Sim and spouses Cardenas.
Cardenas, on the other hand, filed a cross-claim against spouses Sim alleging that the deed
he executed was intended as an equitable mortgage. While spouses Sim insisted that it was
an absolute sale.
Respondent judge dismissed the complaint and cross claim for lack of cause of
action. Moreover, the trial court ruled that Taedo's right to continue to use the septic tank,
erected on Lot 7501-B, ceased upon the subdivision of the land and its subsequent sale to
different owners who do not have the same interest.
ISSUE:
Whether or not the sale to spouses Sim extinguished the easement of the use of the
drainage and septic tank by Taedo.
HELD:
No. Article 631 of the Civil Code provides for the grounds for the extinguishment of an
easement. The alienation of the dominant and servient estates to different persons, however,
is not one of the grounds for the extinguishment of an easement. On the contrary, use of the
easement is continued by operation of law.
Furthermore, Article 624 of the Civil Code provides that an easement shall continue
actively and passively unless the contrary should be provided in the title of conveyance or it

was removed before the execution of the deed. In the instant case, no statement abolishing or
extinguishing the easement of drainage was mentioned in the deed of sale of Lot 7501-A to
Taedo. Nor did Antonio Cardenas stop the use of the drain pipe and septic tank by the
occupants of Lot 7501-A before he sold said lot to Taedo. Hence, the use of the septic tank is
continued by operation of law. Accordingly, the spouses Romeo and Pacita Sim the new
owners of the servient estate (Lot 7501- B), cannot impair, in any manner whatsoever, the use
of the servitude.

6.

REMIGIO O. RAMOS, SR., petitioner, vs. GATCHALIAN REALTY, INC.,

EDUARDO ASPREC, and COURT OF APPEALS, respondents.

FACTS:
Plaintiff Ramos acquired from Science Rodriguez Lombos Subdivision a house and
lot containing an area of 901 square meters situated at Barrio San Dionisio, Paraaque, Metro
Manila. In the subdivision survey plan, two road lots abut plaintiff's property namely lot 4133-G12 with an area of 2,160 square meters clearly appearing as a proposed road in the Lombos
subdivision plan and Lot 4135 of the Paraaque Cadastre now known as Pambansa Road but
more commonly referred to as Gatchalian Avenue.
Respondents Asprec own Lot 4135. Gatchalian Avenue is alongside Lot 4135.
Respondent Gatchalian Realty was granted the road right of way and drainage along Lot 4135
to service the Gatchalian and Asprec subdivision, by the respondent Asprecs. On April 30,
1981, Ramos filed a complaint for an easement of a right of way with preliminary mandatory
injunction against the private respondents, alleging, among others the that he constructed his
house at 27 Gatchalian Avenue (also known as Pambansa Road), Paranaque, and has since
resided therein with his family from 1977 up to the present; that during construction of the
house, Gatchalian Realty, Inc. built a 7-8, feet high concrete wall right infront of his premises,
blocking his entrance/exit to Gatchalian Road, the nearest being only about 100 meters, most
convenient and adequate entrance/exit to the public road or highway, the Sucat Road (now
known as Dr. A. Santos Avenue, Paraaque); that with the construction of the 7-8 feet
concrete wall has constrained plaintiff and his family to use as temporary ingress/egress and
with great inconvenience and hardship other lots belonging to different owners, and this
becomes all the more pronounced during the rainy season due to flood and mud; and, lastly,
that the aforesaid concrete wall is dangerously leaning towards appellant's premises posing
great danger or hazard. \
The lower court dismissed the complaint for insufficiency of evidence. On appeal, the
Court of Appeals found that the plaintiff failed to establish the existence of the pre-conditions in
order that he could legally be entitled to an easement of a right of way as it affirmed the lower
court's order.
ISSUE:
Whether or not the plaintiff has successfully shown that all the requisites necessary
for the grant of an easement of a right of way in his favor are present.
HELD:
The Court finds the petition not to be impressed with merit. An easement or servitude
in an encumbrance imposed upon an immovable for the benefit of another immovable
belonging to a different owner as defined in Article 613 of the Civil Code. It is established either

by law, in which case it is called legal or by the will of the parties, in which event it is a
voluntary easement. Since there is no agreement between the contending parties in this case
granting a right of way by one in favor of the other, the establishment of a voluntary easement
between the plaintiff and the respondent company and/or the other private respondents is
ruled out. What is left to examine is whether or not the plaintiff is entitled to a legal or
compulsory easement of a right of way.
A compulsory right of way cannot be obtained unless the following four requisites are
first shown to exist:
(1) That it is surrounded by other immovables and has no adequate outlet to a public
highway (Art. 649, par. 1);
(2) After payment of proper indemnity (Art. 649, p. 1. end);
(3) That the isolation was not due to the Central's own acts (Art. 649, last par.); and
(4) That the right of way claimed is "at the point least prejudicial to the servient estate;
and insofar as consistent with this rule, where the distance from the dominant estate
to a public highway may be the shortest." (Art. 650).
On the first requisite, the Court finds no reason to disturb the appellate court's finding
of fact that the plaintiff failed to prove the non-existence of an adequate outlet to the Sucat
Road except through the Gatchalian Avenue. As borne out by the records of the case, there is
a road right of way provided by the Sabrina Rodriguez Lombos Subdivision indicated as Lot
4133-G-12 in its subdivision plan for the buyers of its lots. The fact that said lot is still
undeveloped and causes inconvenience to the plaintiff when he uses it to reach the public
highway does not bring him within the ambit of the legal requisite. The Court agree with the
appellate court's observation that the plaintiff should have, first and foremost, demanded from
the Sabrina Rodriguez Lombos Subdivision the improvement and maintenance of Lot 4133-G12 as his road right of way because it was from said subdivision that he acquired his lot and
not either from the Gatchalian Realty or the respondents Asprec. To allow the plaintiff access
to Sucat Road through Gatchalian Avenue in spite of a road right of way provided by the
plaintiff's subdivision for its buyers simply because Gatchalian Avenue allows plaintiff a much
greater ease in going to and coming from the main thoroughfare is to completely ignore what
jurisprudence has consistently maintained through the years regarding an easement of a right
of way, that "mere convenience for the dominant estate is not enough to serve as its basis. To
justify the imposition of this servitude, there must be a real, not a fictitious or artificial, necessity
for it."
Considering that the plaintiff has failed to prove the existence of the first requisite as
aforestated, the Court finds it unnecessary to discuss the rest of the preconditions for a legal or
compulsory right of way.

7.

TOMAS ENCARNACION, petitioner, vs. THE HONORABLE COURT OF APPEALS

and THE INTESTATE ESTATE OF THE LATE EUSEBIO DE SAGUN and THE
HEIRS OF THE LATE ANICETA MAGSINO VIUDA DE SAGUN,* respondents

Whether or not petitioner is entitled to a widening of an already existing easement of

right-of-way.
HELD:

FACTS:
Petitioner Tomas Encarnacion and private respondent Heirs of the late Aniceta
Magsino Viuda de Sagun are the owners of two adjacent estates situated in Buco, Talisay,
Batangas. Petitioner owns the dominant estate while respondent owns the servient estate
which stands between the dominant estate and the national road.
When the servient estate was not yet enclosed with a concrete fence, persons going
to the national highway just crossed the servient estate at no particular point. However, in 1960
when private respondents constructed a fence around the servient estate, a roadpath
measuring 25 meters long and about a meter wide was constituted to provide access to the
highway. One-half meter width of the path was taken from the servient estate and the other
one-half meter portion was taken from another lot owned by Mamerto Magsino. No
compensation was asked and none was given for the portions constituting the pathway.
It was also about that time that petitioner started his plant nursery business on his
land where he also had his abode. He would use said pathway as passage to the highway for
his family and for his customers. Petitioner's plant nursery business through sheer hard work
flourished and with that, it became more and more difficult for petitioner to haul the plants and
garden soil to and from the nursery and the highway with the use of pushcarts. In January,
1984, petitioner was able to buy an owner-type jeep which he could use for transporting his
plants. However, that jeep could not pass through the roadpath and so he approached the
servient estate owners and requested that they sell to him one and one-half (1 1/2) meters of
their property to be added to the existing pathway so as to allow passage for his jeepney. The
request was turned down by the two widows and further attempts at negotiation proved futile.
Petitioner then instituted an action before the Regional Trial Court of Batangas, to
seek the issuance of a writ of easement of a right of way over an additional width of at least
two (2) meters over the De Saguns' 405-square-meter parcel of land. During the trial, the
attention of the lower court was called to the existence of another exit to the highway, only
eighty (80) meters away from the dominant estate, hence, dismissing petitioner's complaint.
On appeal, the Court of Appeals affirmed the decision of the trial court and rejected
petitioner's claim for an additional easement.
ISSUE:

The Court finds that petitioner has sufficiently established his claim for an additional
easement of right of way, holding that where a private property has no access to a public road,
it has the right of easement over adjacent servient estates as a matter of law.
Article 651 of the Civil Code provides that "(t)he width of the easement of right of way shall be
that which is sufficient for the needs of the dominant estate, and may accordingly be changed
from time to time." This is taken to mean that under the law, it is the needs of the dominant
property which ultimately determine the width of the passage. And these needs may vary from
time to time.
When petitioner started out as a plant nursery operator, he and his family could easily
make do with a few pushcarts to tow the plants to the national highway. But the business grew
and with it the need for the use of modern means of conveyance or transport. Manual hauling
of plants and garden soil and use of pushcarts have become extremely cumbersome and
physically taxing. To force petitioner to leave his jeepney in the highway, exposed to the
elements and to the risk of theft simply because it could not pass through the improvised
pathway, is sheer pigheadedness on the part of the servient estate and can only be counterproductive for all the people concerned. Petitioner should not be denied a passageway wide
enough to accommodate his jeepney since that is a reasonable and necessary aspect of the
plant nursery business.
Inasmuch as the additional one and one-half (1 1/2) meters in the width of the pathway will
reduce the area of servient estate, and the petitioner has expressed willingness to exchange
an equivalent portion of his land to compensate private respondents for their loss, perhaps, it
would be well for respondents to take the offer of petitioner seriously. But unless and until that
option is considered, the law decrees that petitioner must indemnify the owners of the servient
estate including Mamerto Magsino from whose adjoining lot 1/2 meter was taken to constitute
the original path several years ago. Since the easement to be established in favor of petitioner
is of a continuous and permanent nature, the indemnity shall consist of the value of the land
occupied and the amount of the damage caused to the servient estate pursuant to Article 649
of the Civil Code.

8.

ANASTACIA QUIMEN, petitioner, vs. COURT OF APPEALS and YOLANDA Q.

OLIVEROS, respondents.
DECISION

IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and will
cause least prejudice shall be chosen. However, if the two circumstances do not concur in a
single tenement, the way where damage will be least shall be used even if not the shortest
[1]
route. This is so because least prejudice prevails over shortest distance. This means that the
court is not bound to establish what is the shortest distance; a longer way may be adopted to
avoid injury to the servient estate, such as when there are constructions or walls which can be
avoided by a round about way, or to secure the interest of the dominant owner, such as when
the shortest distance would place the way on a dangerous decline.
Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together with
her brothers Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of property situated in
Pandi, Bulacan. They agreed to subdivide the property equally among themselves, as they
did, with the shares of Anastacia, Sotero, Sulpicio and Rufina abutting the municipal road. The
share of Anastacia, located at the extreme left, was designated as Lot No. 1448-B- 1. It is
bounded on the right by the property of Sotero designated as Lot. No. 1448-B-2. Adjoining
Soteros property on the right are Lots Nos. 1448-B-3 and 1448-B-4 originally owned by Rufina
and Sulpicio, respectively, but which were later acquired by a certain Catalina
Santos. Located directly behind the lots of Anastacia and Sotero is the share of their brother
Antonio designated as Lot No. 1448-B-C which the latter divided into two (2) equal parts, now
Lots Nos. 1448-B-6-A and 1448-B-6-B, each with an area of 92 square meters. Lot No. 1448B-6-A is located behind Anastacias Lot No. 1448-B-1, while Lot No. 1448-B-6-B is behind the
property of Sotero, father of respondent Yolanda.
In February 1982 Yolanda purchased Lot No. 1448-B-6-A from her uncle Antonio through
her aunt Anastacia who was then acting as his administratrix. According to Yolanda, when
petitioner offered her the property for sale she was hesitant to buy as it had no access to a
public road. But Anastacia prevailed upon her to buy the lot with the assurance that she would
give her a right of way on her adjoining property for P200.00 per square meter.
Thereafter, Yolanda constructed a house on the lot she bought using as her passageway
to the public highway a portion of Anastacia s property. But when Yolanda finally offered to
pay for the use of the pathway Anastacia refused to accept the payment. In fact she was
[2]
thereafter barred by Anastacia from passing through her property.
In February 1986 Yolanda purchased the other lot of Antonio Quimen, Lot No. 1448-B-6B, located directly behind the property of her parents who provided her a pathway gratis et

amorebetween their house, extending about nineteen (19) meters from the lot of Yolanda
behind the sari-sari store of Sotero, and Anastacias perimeter fence. The store is made of
strong materials and occupies the entire frontage of the lot measuring four (4) meters wide and
nine meters (9) long. Although the pathway leads to the municipal road it is not adequate for
ingress and egress. The municipal road cannot be reached with facility because the store itself
obstructs the path so that one has to pass through the back entrance and the facade of the
store to reach the road.
On 29 December 1987 Yolanda filed an action with the proper court praying for a right of
way through Anastacia s property. An ocular inspection upon instruction of the presiding
judge was conducted by the branch clerk of court. The report was that the proposed right of
way was at the extreme right of Anastacias property facing the public highway, starting from
the back of Soterossari-sari store and extending inward by one (1) meter to her property and
turning left for about five (5) meters to avoid the store of Sotero in order to reach the municipal
[3]
[4]
road and the way was unobstructed except for an avocado tree standing in the middle.
But on 5 September 1991 the trial court dismissed the complaint for lack of cause of
action, explaining that the right of way through Soteros property was a straight path and to
allow a detour by cutting through Anastacias property would no longer make the path
straight. Hence the trial court concluded that it was more practical to extend the existing
pathway to the public road by removing that portion of the store blocking the path as that was
the shortest route to the public road and the least prejudicial to the parties concerned than
[5]
passing through Anastacias property.
On appeal by respondent Yolanda, the Court of Appeals reversed the lower court and
held that she was entitled to a right of way on petitioners property and that the way proposed
[6]
by Yolanda would cause the least damage and detriment to the servient estate. The
appellate court however did not award damages to private respondent as petitioner did not act
in bad faith in resisting the claim.
Petitioner now comes to us imputing ERROR to respondent Court of Appeals: (a) in
disregarding the agreement of the parties; (b) in considering petitioners property as a servient
estate despite the fact that it does not abut or adjoin the property of private respondent; and,
(c) in holding that the one-meter by five-meter passage way proposed by private respondent is
the least prejudicial and the shortest distance to the public road.
Incidentally, petitioner denies having promised private respondent a right of way. She
claims that her agreement with private respondent was to provide the latter with a right of way
on the other lot of Antonio Quimen under her administration when it was not yet sold to private
respondent. Petitioner insists that passing through the property of Yolandas parents is more

accessible to the public road than to make a detour to her property and cut down the avocado
tree standing thereon.
Petitioner further argues that when Yolanda purchased Lot No. 1448-B-6-B in 1986 the
easement of right of way she provided her (petitioner) was ipso jure extinguished as a result of
the merger of ownership of the dominant and the servient estates in one person so that there
was no longer any compelling reason to provide private respondent with a right of way as there
are other surrounding lots suitable for the purpose. Petitioner strongly maintains that the
proposed right of way is not the shortest access to the public road because of the detour and
that, moreover, she is likely to suffer the most damage as she derives a net income of P600.00
per year from the sale of the fruits of her avocado tree, and considering that an avocado has
[7]
an average life span of seventy (70) years, she expects a substantial earning from it.
But we find no cogent reason to disturb the ruling of respondent appellate court granting
a right of way to private respondent through petitioners property. In fact, as between petitioner
Anastacia and respondent Yolanda their agreement has already been rendered moot insofar
as it concerns the determination of the principal issue herein presented. The voluntary
easement in favor of private respondent, which petitioner now denies but which the court is
inclined to believe, has in fact become a legal easement or an easement by necessity
[8]
constituted by law.
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
[9]
something to be done on his property, for the benefit of another person or tenement. It is jus
in re aliena, inseparable, indivisible and perpetual, unless extinguished by causes provided by
[10]
law. A right of way in particular is a privilege constituted by covenant or granted by law to a
person or class of persons to pass over anothers property when his tenement is surrounded
by realties belonging to others without an adequate outlet to the public highway. The owner of
the dominant estate can demand a right of way through the servient estate provided he
[11]
indemnifies the owner thereof for the beneficial use of his property.
The conditions sine qua non for a valid grant of an easement of right of way are: (a) the
dominant estate is surrounded by other immovables without an adequate outlet to a public
highway; (b) the dominant estate is willing to pay the proper indemnity; (c) the isolation was not
due to the acts of the dominant estate; and, (d) the right of way being claimed is at a point
[12]
least prejudicial to the servient estate.
A cursory examination of the complaint of respondent Yolanda for a right of way
shows that

[13]

readily

[E]ven before the purchase of the said parcels of land the plaintiff was reluctant to purchase
the same for they are enclosed with permanent improvements like a concrete fence and store
and have (sic) no egress leading to the road but because of the assurance of the defendant
that plaintiff will be provided one (1) meter wide and five (5) meters long right of way in the sum
of P200.00 per square meter to be taken from Anastacias lot at the side of a concrete store
until plaintiff reach(es) her fathers land, plaintiff was induced to buy the aforesaid parcels of
land x x x. That the aforesaid right of way is the shortest, most convenient and the least
onerous leading to the road and being used by the plaintiffs predecessors-in-interest from the
very inception x x x.
The evidence clearly shows that the property of private respondent is hemmed in by the
estates of other persons including that of petitioner; that she offered to pay P200.00 per square
meter for her right of way as agreed between her and petitioner; that she did not cause the
isolation of her property; that the right of way is the least prejudicial to the servient
[14]
estate. These facts are confirmed in the ocular inspection report of the clerk of court, more
so that the trial court itself declared that [t]he said properties of Antonio Quimen which were
purchased by plaintiff Yolanda Quimen Oliveros were totally isolated from the public highway
and there appears an imperative need for an easement of right of way to the public
[15]
highway.
Petitioner finally insists that respondent court erroneously concluded that the right of way
proposed by private respondent is the least onerous to the parties. We cannot agree. Article
650 of the New Civil Code explicitly states that the easement of right of way shall be
established at the point least prejudicial to the servient estate and, insofar as consistent with
this rule, where the distance from the dominant estate to a public highway may be the
shortest. The criterion of least prejudice to the servient estate must prevail over the criterion
of shortest distance although this is a matter ofjudicial appreciation. While shortest
distance may ordinarily imply least prejudice, it is not always so as when there are permanent
structures obstructing the shortest distance; while on the other hand, the longest distance may
be free of obstructions and the easiest or most convenient to pass through. In other words,
where the easement may be established on any of several tenements surrounding the
dominant estate, the one where the way is shortest and will cause the least damage should be
chosen. However, as elsewhere stated, if these two (2) circumstances do not concur in a
single tenement, the way which will cause the least damage should be used, even if it will not
[16]
be the shortest. This is the test.
In the trial court, petitioner openly admitted -

Q. You testified during your direct examination about this plan, kindly go over this and please
point to us in what portion of this plan is the house or store of the father of the (plaintiff)?
A. This one, sir (witness pointed a certain portion located
xxx

xxx

near the proposed right of

way).

xxx

Q.

Now, you will agree with me x x x that this portion is the front portion of the lot
owned by the father of the plaintiff and which was (sic) occupied by a store
made up of strong materials?

A.

It is not true, sir.

Q.

What materials does (sic) this store of the father of the plaintiff made of?

A.

Hollow blocks and the side is made of wood, sir.

xxx

xxx

WHEREFORE, no reversible error having been committed by respondent Court of

Appeals, the petition is DENIED and the decision subject of review is AFFIRMED. Costs
against petitioner.

xxx

Q. Just before your brother disposed that 1/2 portion of the lot in question, what
right of way does (sic) he use in reaching the public road, kindly point to this
sketch that he is (sic) using in reaching the public road?
A. In my property, sir.
Q. Now you will agree with me x x x the main reason why your brother is (sic) using
this property is because there was a store located near this portion?
A. Yes, and according to the father of Yolanda there is no other way than this, sir.

extreme right of petitioners property, will cause the least prejudice and/or damage as
compared to the suggested passage through the property of Yolanda s father which would
mean destroying the sari-sari store made of strong materials. Absent any showing that these
findings and conclusion are devoid of factual support in the records, or are so glaringly
erroneous, this Court accepts and adopts them. As between a right of way that would
demolish a store of strong materials to provide egress to a public highway, and another right of
way which although longer will only require an avocado tree to be cut down, the second
alternative should be preferred. After all, it is not the main function of this Court to analyze or
weigh the evidence presented all over again where the petition would necessarily invite
calibration of the whole evidence considering primarily the credibility of witnesses, existence
and relevancy of specific surrounding circumstances, their relation to each other, and the
[18]
probabilities of the situation. In sum, this Court finds that the decision of respondent
appellate court is thoroughly backed up by law and the evidence.

[17]

The trial court found that Yolandas property was situated at the back of her fathers
property and held that there existed an available space of about nineteen (19) meters long
which could conveniently serve as a right of way between the boundary line and the house of
Yolanda s father; that the vacant space ended at the left back of Soteros store which was
made of strong materials; that this explained why Yolanda requested a detour to the lot of
Anastacia and cut an opening of one (1) meter wide and five (5) meters long to serve as her
right of way to the public highway. But notwithstanding its factual observations, the trial court
concluded, although erroneously, that Yolanda was not entitled to a right of way on petitioners
property since a detour through it would not make the line straight and would not be the route
shortest to the public highway.
In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared that the
proposed right of way of Yolanda, which is one (1) meter wide and five (5) meters long at the

Quimen vs. CA
Facts:
Private respondent Yolanda Oliveros bought the lot belonging to his uncle Antonio
Quimen, a land without access to the road public, with an inducement by her petitioner Aunt
Anastacia that she will give her a right of way on her adjoining property for P200 per square
meter. When Yolanda offered Anastacia the payment, the latter refused to accept denying the
promise of right of way to her once she bought the property. Yolanda filed an action with a
prayer of right of way through Anastacias property. The trial court dismissed the complaint
holding that the space at the back of her fathers house which a store was situation was the
better right of way because it is shorter than that of Anastacias property. But the Court of
Appeals reversed the decision saying that respondent has the right of way through petitioners
property and as it was the one which will cause the least damage and detriment to the servient
estate.
Issue:
Whether or not respondent has a right of way through petitioners property.
Held:
The Court held that she has. Article 650of the Civil Code provides that the right of way
must be the one which has the shortest route and which will cause the least damage and

detriment to the servient state. Though the easement to petitioners property in the case at bar
is longer than the one located at the back of respondents house which has a store blocking it,
the requirement that it can bring the least prejudice to the servient estate must prevail over the
shortness of the route to the public highway. The less damage will be incurred not as when the
store made of strong materials should be removed. More so, the conditions for a valid grant of
right of way through petitioners property, which are:
1. The dominant estate is surrounded by other immovables without an adequate outlet
to public highway.
2. The dominant estate is willing to pay the proper indemnity
3. The isolation was not due to the acts of the dominant estate.
4. The right of way being claimed is the least prejudicial to the servient estate are met
by the circumstances at hand. JUDGMENT AFFIRMED.

9.

EDWIN CASE, petitioner-appellant, vs. THE HEIRS OF TUASON Y

SANTIBAEZ, opponents-appellees.

On the 7th of December, 1906, the attorneys for Edwin Case filed a petition with the Court of
Land Registration requesting that the property owned by the applicant, described in the
petition, be registered in accordance with the provisions of Land Registration Act. After a
written opposition was presented by Felipe R. Caballero on the 6th of June, 1907, on behalf of
the heirs of late Pablo Tuason and Leocadia Santibaez, counsel for the applicant, Case, on
August 2, 1907, amended the original petition and set forth: that said property, situated in Calle
Escolta, district of Binondo, consists of a parcel of land and the building erected thereon
bearing Nos. 142 and 152; it is bounded on the northwest, approximately, by the estero of
Santa Cruz and the property of Carmen de Ayala de Roxas; on the southeast by the River
Pasig; on the southwest by the property of the heirs of Tuason and Santibaez; and on the
northwest by Calle Escolta and the aforesaid property of Carmen de Ayala de Roxas; that the
total area is 3,251.84 square meters, its description and boundaries being detailed in the plan
attached to the petition; that according to the last assessment made for the purposes of
taxation the land was valued at P170,231 and the buildings thereon at P30,000; that the
property is free from all incumbrance, and no one has any interest therein or right thereto; that
on the northeast side the property has in its favor the right of easement over some 234.20
square meters of land owned by the said Ayala de Roxas, and that the applicant acquired the
property by succession from Doa Clotilde Romree.
In the written opposition above alluded to, counsel for the heirs of Pablo Tuason and Leocadia
Santibaez alleged that the parties whom he represents are owners in common of the property
adjoining that of the petitioner on the southwest; that the latter, in making the plan attached to
his petition, extended his southwest boundary line to a portion of the lot of the said heirs of
Tuason and Santibaez in the form indicated by the red line in the annexed plan; that the true
dividing line between the property of the petitioner and that of the said heirs is the walls
indicated in black ink on the accompanying plan; that said walls belong to the opponents, and
that about two years ago, when the applicant made alterations in the buildings erected on his
land, he improperly caused a portion of them to rest on the wall owned by the parties whom he
represents, at point 12, 13, and 14 of said plan; for which reason the opponent prayed the
court to direct the applicant to amend the line marked in his plan with the letters Y, X, U, T, S,
and R, so that it may agree with the wall indicated by the numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,
11, 12, 13, and 14 on the plan which accompanies the written opposition, reducing the area to
whatever it may be after the amendment has been made; that the applicant be compelled to
remove the supports that he placed for his buildings on the wall of the representatives of the
petitioner, and that he be sentenced to pay the costs.
The case was brought to trial, both parties adduced evidence, and their exhibits were made of
record. The court, assisted by the interested parties and their respective experts, made an
inspection of the two properties, in view of which it entered judgment on the 31st of July, 1908,
sustaining the opposition offered by the representative of the heirs of Pablo Tuason Leocadia
Santibaez, and after declaring a general default granted the registration of the property

described in the application filed by Edwin Case, with the exclusion of the wall claimed by the
opponents and shown on their plan by the lines numbered 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, and 14; and in view of the fact that the lines drawn on the plan offered in evidence by the
applicant under letter G are not correctly drawn, once this decision shall have become final, let
the dividing line of both properties be fixed by common accord between the two parties and
their experts, taking as a base for the same the amended line of walls drawn on the plan of the
opponents, but should they not reach an agreement a surveyor of the Court of Land
Registration shall be detailed to fix the same at the expense of the parties; the court also
ordered the cancellation of the registration entries of the property entered in the name of
Clotilde Romree, principal of the petitioner, at page 142 and those following of volume 15,
section of Binondo and 52 of the register, property No. 828, first entry.
On the 12th of August, 1908, the petitioner moved for a new trial on the ground that the
evidence was not sufficient to justify the decision of the court in excluding the wall claimed by
the opponents; that said decision was contrary to the law, in so far as it excludes the said wall,
and that the conclusions of fact therein are openly and manifestly contrary to the weight of the
evidence in so far as they referred to the exclusion of said wall. The said motion was overruled
on the 15th of same month, to which overruling the applicant excepted and announced his
intention to perfect the corresponding bill of exceptions which was filed, approved, and
submitted to this court together with the proper assignment of errors.
In the appeal interposed by the applicant against the decision of the Court of Land
Registration, now before this court, the questions set up are merely of fact.
The question is whether the wall that with slight interruption runs from Calle Escolta to the
River Pasig, and which divides the adjoining properties of the applicant, Edwin Case, and of
the opponents, belongs to the former, as he claimed in the first instance, or is a dividing wall as
affirmed in his brief in this second instance, or is the property of the said opponents, the heirs
of the late Tuason and Santibaez. lawphi1.net
The trial court after considering the evidence adduced by both parties to the suit, found that the
wall in controversy belongs to the opponents for the reason, among others, that in the public
document by which one of their original ancestors acquired on the 19th of April, 1796, the
property now possessed by them, it appears that property was then already inclosed by a
stone wall. This document, which was offered in evidence by the opponents, has not been
impugned by the applicant. On the contrary, it was acknowledge as the title deed of the
property adjoining that of the applicant by the witness Juan B. Tuason, who knows the one and
the other.
It is fully proven that two walls extend from Calle Escolta to the interior of both properties, the
one backing the other, and which respectively support the edifices of the petitioner and of the
opponents from points 36, 35, 34, 33, 32, 31, and 30 on the plan of the petitioner
corresponding to points 1 to 6 on that of the opponents.

This section of the wall of the opponents embraced within the points mentioned in the plans
offered in evidence by the parties, for very reason that it supports only the property of the
opponents and not that of the petitioner, can not be a party wall, one-half of which along its
entire length would belong to the adjoining building owned by Mr. Case. There is not sufficient
proof to sustain such claim, and besides, the building erected thereon disproves the pretension
of the petitioner.
It should, however, be noted that the portion of the wall between the numbers 3, 4, 5, and 6 on
the plan of the opponents, which corresponds to numbers 33, 32, 31, and 30 of that of the
petitioner, and which constitutes the cesspool on the property of the latter, belongs to him, and
it has so been admitted by counsel for the opponents, for the reason that the petitioner had
acquired it by prescription, the opponents having lost control over the area of land covered by
the said cesspool together with the walls that inclose it.
Under article 572 of the Civil Code the easement of party walls is presumed, unless there is a
title or exterior sign, or proof to the contrary, among others, in dividing walls adjoining buildings
up to the common point of elevation.
The legal presumption as to party walls is limited to the three cases dealt with in the said
article of the code, and is that of juris tantum unless the contrary appear from the title of
ownership of the adjoining properties, that is to say, that the entire wall in controversy belongs
to one of the property owners, or where there is no exterior sign to destroy such presumption
and support a presumption against the party wall.lawphi1.net (Art. 573, Civil Code.)
The intermediate portion of the walls in question, lying between numbers 6 and 13 on the
defendants' plan, equivalent to a little more than numbers 30 to 25 on the plan of the petitioner,
is the portion against which no other wall appears to have been erected on the land owned by
Mr. Case. In spite of this it can not be presumed that the aforesaid portion was a party wall,
and that it was not exclusively owned by the defendants, inasmuch as the latter have proven
by means of a good title that has not been impugned by the petitioner, that when one of their
ancestors and principals acquired the property the lot was already inclosed by the wall on
which the building was erected; it must therefore be understood that in the purchase of the
property the wall by which the land was inclosed was necessarily included.
The above documentary evidence has not been overcome by any other presented by the
petitioner, but apart from that record discloses the existence of certain unquestionable signs.
These consist of constructions made by the petitioner himself on his own property which
entirely destroy any presumption that it is a party wall, and indeed gives rise to a presumption
against it.
Three openings have been made in the wall , undoubtedly to allow the passage of air and light.
Two of them are beveled on the side toward the land of the objectors, and the third has
recently been beveled on the other. A rafter or lintel was found imbedded in the wall on the

side of the property of the opponents. These things constitute exterior signs and were recorded
as the result of personal inspection by the trial court in company with the experts of both
parties. These signs positively and conclusively prove that the said wall is not a party wall, but
the exclusive property of the defendant. This is further confirmed by the testimony of the
witnesses at the trial.
The fact that the petitioner built a wall and backed it against the one in question to support the
edifice he had constructed between points 21 and 13 of the corrected plan is a further
indication that the neighboring wall is not a party one. He knew perfectly well that he had no
right to rest his building on the latter. That he built a terrace about four years previously over
the wall between points 30, 29, 28, and 27 does not prove that the whole of the wall, from the
Escolta to the River Pasig, is a party wall, but it does show that he usurped a portion thereof to
the prejudice of the real owner.
Neither can it be presumed that that part of the wall bordering on the River Pasig comprised
between points 13 and 14 is a party wall. It was shown in the proceedings as resulting from the
above-mentioned ocular inspection that the side of the said wall, which is rather a low one,
there is another, a higher one erected on the petitioner's land and backed against the one in
question. The first one, as has been said, forms part of that which has surrounded the property
from the date of its acquisition, more than a century ago, until the present date. It is absolutely
independent of that built by the petitioner, and that it is the exclusive property of the objectors
and is not a party wall can not be denied.
It therefore appears from the proceedings that, with the exception of the small portion of the
wall in question occupied by the latrine on the property of the petitioner, and which the
opponents admit that he has acquired by prescription, the whole of said wall from the Escolta
to the River Pasig can not be presumed to be a party wall; the evidence to the contrary
conclusively proves that it belonged exclusively to the defendants, and it has been further
shown in the case that at one time an old building belonging to the opponents used to rest on a
portion of the wall near the river.lawphi1.net
In view of the foregoing, and considering that the judgment appealed from is in accordance
with the law and the merits of the case, it is our opinion that the same should be affirmed in
full, as we do hereby affirm it, with the costs against the petitioner. So ordered.
Arellano, C. J., Mapa, Johnson, Carson, and Moreland, JJ., concur.

10. SEVERINA and FLORA CHOCO, plaintiffs-appellants, vs.ISIDRO

SANTAMARIA, defendant-appellant.
The judgment rendered in this case in first instance is in part as follows:
From the evidence presented at the trial, I find that the defendants is in possession of
a parcel of land on the corner of Calles Pescadores and P. Rada, in the district of
Tondo, city of Manila, and that he was erected a house thereon flush with the
boundary line of the adjacent property; that the plaintiffs are the owners of the land on
both sides of the defendant's house, erected as stated, both on Calle Pescadores and
Calle P. Rada; that the defendant in the building of his house has made several
openings and windows in the walls of the house on both sides overlooking then
property of the plaintiff; that at the time the defendant was building his house, and the
windows and the openings were being made, the plaintiffs protested, and later on and
in the year 1905 made written protest and demand on the defendant, and the
defendant received the written protest and referred it to his counsel, who, from the
evidence, appears to have suggested an amicable and adjustment of the matter, but
the adjustment was not made, and this action was brought.
It is likewise established that the entrance to the defendant's house is in Calle
Pescadores, and taking it as the front of his house he has put a large window in its
upper story, on the balcony of said house, marked 1 on Exhibit A, overlooking Calle
P. Rada; and that this window and its balcony do not face directly toward the house of
the plaintiffs.
There have also been constructed two windows in the rear wall of the house of the
defendant, in the first story of the house, which are marked 8 and 9 on exhibit A, and
these windows are each 50 by 80 centimeters, and are placed immediately under the
ceiling of the first story, and each of these windows is equally divided into four panes.
On the right hand side of the house, entering from Calle Pescadores, there is a
window or opening in the wall of the house in the second story, which is about 25 by
35 centimeters, and is located a little more than half way from the floor of the ceiling
of the second story and this is subdivided into smaller panes; and on the same side
there are three windows which are marked 2, 3, and 4 on Exhibit A, located
immediately under the ceiling of the first story, and each of the three is 25 by 25
centimeters.
There are two other windows on the same side located immediately under the ceiling,
which are marked as 5 and 6 on Exhibit A and also on Exhibit C, and one of these
windows is about 35 by 67 centimeters, and the other about 75 by 90 centimeters.

It also appears that there is wire screening over all these openings or
windows.1awphil.net
The law provides that 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
joist, or immediately under the ceiling, thirty centimeters square, with an iron gate
embedded in the wall and a wire screen.
In this case the windows are in a wall not a party wall adjoining the plaintiff's estate,
and the window marked 2, 3, and 4, as appears on Exhibit A, are less than thirty
centimeters square and have a wire screen, but there does not appear to be the iron
gate embedded in the wall.
The windows marked 5 and 6, as indicated in Exhibit A, have a wire screen but are
more than thirty centimeters square, and have the iron grate embedded in the wall.
The window marked 7 on Exhibit A has a wire screen, but is more than 30
centimeters square and has not the iron grate embedded on the wall.
The windows 8 and 9, as indicated on Exhibit A, have a wire screen but no iron grate
embedded in the wall, and are of a greater dimension than thirty centimeter square.
The window marked One on Exhibit A is located in a balcony which overlooks the
street, while the premises of the plaintiff may be seen from it, it is not adjoining their
estate.
The court finds that the plaintiffs are entitled to a decree for closing all the windows or
openings in the walls of the defendant's house, as herein before described, which
directly overlook the premises of the plaintiffs, or that in some other way the
provisions of the law be complied with so that they may remain open.
All these openings and windows can be made to comply with the law, with the
exception of that marked 7, which is not immediately under the ceiling (techo).
Let judgment be entered in favor of the plaintiffs, Severina and Flora Choco, and
against the defendant, Isidro Santamaria, forever prohibiting the opening of the
window marked No. 7, as hereinbefore stated, which must be closed, and forever
prohibiting the opening of the windows and openings marked, as herein before stated,
2, 3, 4, 5, 6, 8, and 9, which must be closed or made to conform to the requirements
of law with regard to dimensions and an iron grate embedded in the wall, with the
costs of the action.

The plaintiffs appealed

instance:1awphil.net

from

that

judgment

and

allege

in

their

appeal

in

this

With respect to the second assignment of error, the question raised by the appellants concerns
the proper interpretation of article 581 of the Civil Code which describes as follows:itc-alf

1. That the lower court erred by not ordering in his judgment the final and perpetual closing of
the large window opened in the balcony of the back part of the appellee's house and marked
No. 1 in the photographic Exhibits A and D, on the ground that the said window is in the
balcony which overlooks Calle Padre Rada and that, though the appellant's lot can be seen
through the window, it is not contiguous to the latter's property.

The owner of the wall which is not a party-wall, adjoining anothers 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 dimentions of 30 centimeters square and, in any
case, with an iron grate embedded in the wall and a wire screen.

2. That the trial court also erred in ordering in his judgment that the openings and windows,
Nos. 2, 3, 4, 5, 6, 8, and 9, might continue open if they were fixed so as to comply with the
requirements of the law as regards their dimensions and the placing of iron grates embedded
in the wall.
3. That the lower court also erred in denying the appellant's petition for rehearing.
It appears obvious to us, from the evidence, that the window No. 1, referred to in the first
assignment of errors, is next appellants' lot. To judge from the photographic views, Exhibits A
and D, it opens on the boundary line between the said lot and that the appellee and is situated
perpendicularly above a part of the wall that belongs to the appellants. This opinion is
corroborated by the testimony of the defendant's witness who took the said photographs, in so
far as he said that "a part of the window in question is in front of the plaintiffs' property, and a
person approaching the window may clearly see the said lot." And certainly if it is in front of this
lot, it is unquestionable that it directly overlooks the same; but even though it did not and only a
side or oblique view of the lot could be obtained from it, it could not be kept open, since
between it and the plaintiffs' property there does not intervene the distance required by law
that of two meters in the first case, and 60 centimeters in the second. In reality, there is no
distance at all between the said window and the plaintiffs' lot, because, as we have said, this
window is perpendicular to the boundary line of the said lot; therefore, its opening is a manifest
violation of the provisions of article 582 of the Civil Code which reads as follows:
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, 2 meters
between the wall in which they are built and said estate.
Neither can side nor oblique views be opened over said property, unless there is a
distance of 60 centimeters.
Because of the lack of the distance required by law, the window in question must be closed,
and consequently the judgment appealed from should be modified in this sense, as regards
this window.

The windows mentioned in this part of the appeal are those indicated by Nos. 2, 3, 4, 5, 6, 8,
and 9, in the defendant's Exhibit A. They are all situated immediately under the ceiling of the
first door and are provided with wire screens; some of them measure more and other less than
30 centimeters square and none of them have iron grates embedded in the wall. Owing to this
last circumstance, none of them fully comply with the conditions required by the law; moreover,
those numbered 5, 6, 8, and 9, have the additional defect of being greater than 30 centimeters
square. The trial judge therefore ordered, in the judgment, that all the aforementioned windows
be closed or that they be made to conform to the law with respect to their dimentions and the
placing of the iron grates embedded in the wall. The appellants maintain that these windows
should have been ordered closed absolutely and finally, and, consequently, that the option
allowed the defendant to keep them open, provided that he brought them within the terms of
the law, in contrary to the same and, therefore, illegal.
It is alleged as a ground for such averment that none of the ceiling joist, which is the first
condition required by law.
We understand by ceiling joist say the appellants in a building composed of any
given number of stories, the long pieces to which are nailed the boards that form the
ceiling of the last story of the building, counting the stories from below; and this
interpretation which we give to the words ceiling joists must be that most in harmony
with the spirit of article 581 of the code, the subject of our examination, since
immediately after them in the same article, in explanation, are found the words or
immediately under "los techos," in order to indicate, without the least doubt, the sole
place or height where openings or windows may be made in conformity within the
law. It is needless to say that a building, though composed of several stories, can
have but one techo. . . .
This last assertion is incorrect. By techo is understood that part of a construction which covers
the rooms under it and certainly forms one of the essential parts of every story. A story is
composed of earth, payment and ceiling, the latter, that is, the ceiling, being that part of the
story that the visible to the observer situated below in the room covered by it. (HispanoAmerican Encyclopedic Dictionary, by Montaner and Simon.) Consequently, every story has a
ceiling, and not, as the appellants maintain, the upper one alone.

Nor is their definition exact of the word joists, as it is employed in article 581 of the Code.
According to the dictionary of the Spanish Academy, these are, in architecture, understood to
be a kind of beam laid horizontally and serving in buildings to support others of for bracing and
connecting the parts of the structure. Mucius Scaevola says in his Civil Code, volume 10, page
448:
The horizontal timbers that are placed upon the tops of the uprights, that is, what are
commonly called beams, intended to serve for connection and main support of the
timbers of the different floors that separate the stories of the building, are called joists.
According to these definitions each floor necessarily has joists, that is, beams, since, in the last
analysis they are what support and secure the structure of the story immediately above;
therefore it is not true that there may be joists only in the top story, as the appellants claim by
saying that they understand to be such the long timbers to which are fastened the boards of
the ceiling at the top story of the building. On the contrary, carefully considered, it is precisely
the top story that does not need joists, since it does not have to support any other higher
portion of the building. It has only to support the weight of the roof, which undoubtedly much
less than that of a whole story. So that, according to Mucius Scaevola (work cited, vol. 10, p.
487), it can not be said that the top story has joists. And because it certainly does not have
them, is reason why the code in said article 581 employs the phrase orimmediately under "los
techos" in referring to the top story.
The author's words in expounding this theory in his commentary on article 581 of the Civil
Code are as follows:
We said elsewhere that these (the joists) were horizontal timbers that rest upon the
tops of the uprights; they form, then, the upper limit of the different stories of a house;
and therefore, in referring to the top story, which can not be said to have joists, article
581 makes use of the phrase or immediately under "los techos."
This does not mean that the italicized phrase refers solely and exclusively to the top story,
since lower stories also have techos, as above set forth. In our opinion what the author cited
means is that in speaking of the top story, which has no joists, the words or article 581 of the
code, at the height of the ceiling joists, fail to apply, the phaseor immediately under "los
techos" alone being thereto applicable, in distinction from the lower stories, with regard to
which both phrases are applicable as they have at the same time joists and techo. In referring
to the lower stories either phrase may, in connection with the other, determine the place, which
surely can be more than one, where it is permissible to open the windows called regulation
windows, whenever in them the joists are actually joined to or placed next to the techo which
forms the top of each of said stories. Both phrases therefore express the same idea with
reference to the lower stories.

Aside from what has been said here, the object of the law in authorizing the opening of the
windows in question in all the stories of a building, without any exception, is clear. Their
purpose is, as article 581 itself says, to furnish light to the rooms, and it is evident at a glance
that the rooms of the lower stories have as much need for light as those of the top story. No
good reason exists for having one story in better condition than another, whichever it may be,
connection with this provision of law.
The defendant is ordered to close finally and forever the window marked No. 1 in Exhibit A, the
judgment appealed from in so far as it refers to said window being thus modified, but affirmed
in all other respects; without special finding as to costs in this instance.
Arellano, C.J., Johnson and Carson, JJ., concur.