USUFRUCT: Moralidad vs.

Pernes

FACTS:

This case is a petition for certiorari filed by petitioner assailing the decision of CA,
affirming the decision of the RTC, which reversed the decision of the MTCC in an action
for unlawful detainer commenced by the petitioner.

This controversy stemmed from a parcel of land located in Davao City and owned by
petitioner Mercedes Moralidad. While working abroad, she bought said property for
the purpose of letting Arlene Pernes, her niece and one of the respondents, to move in
Davao City proper as the latter told her that the outskirts of Davao City was infested by
NPA rebels. She executed a document permitting the respondents to build their house
therein and stay long as they like. She also made said property available to any of her
kins wishing to live and settle in Davao City, with condition that they should maintain
an atmosphere of cooperation, live in harmony and must avoid bickering with one
another.

When petitioner retired, she went back to the Philippines to stay with the respondents.
However, their relationship turned sour. The respondent’s family became impervious
to her suggestions. She even experienced harassment, threat, and defamation from said
family. She went to the Lupon ng Barangay to seek remedy. The Lupon favored her and
ordered Pernes family to vacate petitioner’s property but not after they are reimbursed
for the value of the house they built thereon. The parties could not agree on the amount.

Petitioner filed with the MTCC of Davao City an unlawful detainer suit against the
respondent spouses. The MTCC, resolved the ejectment suit in petitioner’s favor and
declared that the respondents spouses, although builders in good faith vis-à-vis the
house they built on her property, cannot invoke their bona fides as a valid excuse for
not complying with the demand to vacate. To the MTCC, respondents’ continued
possession of the premises turned unlawful upon their receipt of the demand to vacate,
such possession being merely at petitioner’s tolerance, and without any rental.

Respondents appealed to the RTC and the former reversed the MTCC decision. It held
that respondents’ possession of the property in question was not by mere tolerance of
the petitioner but rather by her express consent, making Articles 448 and 546 of the
NCC applicable.

Petitioner went to the CA, which affirmed the RTC decision as regards the applicability
of Articles 448. But it ruled that it is still premature to apply the same considering that
the issue of whether respondents’ right to possess a portion of petitioner’s land had
already expired or was already terminated was not yet resolved. It further ruled that
what governs the rights of the parties is the law on usufruct but petitioner failed to
establish that respondents’ right to possess had already ceased.

Petitioner appealed to the SC.

ISSUES:

1. WON the existing usufruct may be deemed to have been extinguished.

2. WON Respondents has the right to be reimbursed on the improvements they
have built.

HELD:

1. YES. The document executed by the petitioner constitutes the title creating, and
sets forth the conditions of the usufruct. The loss of the atmosphere of
cooperation, the bickering, or the cessation of harmonious relationship
between/among kin constitutes a resolutory condition which, by express wish of
the petitioner, extinguishes the usufruct.

2. NO. If the builder is a usufructuary, his rights will be governed by Arts. 579 and
580. By express provision of law, respondents, as usufructuary, do not have the
right to reimbursement for the improvements they may have introduced on the
property. The respondents may, however, remove or destroy the improvements
they may have introduced thereon without damaging the petitioner’s property.

NOTE: Review Article 562 of the NCC. Usufruct, in essence, is nothing else but simply
allowing one to enjoy another’s property. It is also defined as the right to enjoy the property of
another temporarily, including both the jus utendi and the jus fruendi, with the owner retaining
the jus disponendi or the power to alienate the same.

MAXIMA HEMEDES v. THE HONORABLE COURT OF APPEALS, DOMINIUM

REALTY AND CONSTRUCTION CORPORATION, ENRIQUE D. HEMEDES, and R
& B INSURANCE CORPORATION
G.R. No. 107132. October 8, 1999
Gonzaga-Reyes, J.

FACTS:
The instant controversy involves a question of ownership over an unregistered parcel of
land, situated in Sala, Cabuyao, Laguna. It was originally owned by the late Jose
Hemedes, father of Maxima Hemedes and Enrique D. Hemedes. Jose Hemedes
executed a document entitled Donation Inter Vivos With Resolutory Condition
whereby he conveyed ownership over the subject land, together with all its
improvements, in favor of his third wife, Justa Kauapin, subject to the following
resolutory conditions:
(a) Upon the death or remarriage of the DONEE, the title to the property donated shall
revert to any of the children, or their heirs, of the DONOR expressly designated by the
DONEE in a public document conveying the property to the latter; or
(b) In absence of such an express designation made by the DONEE before her death or
remarriage contained in a public instrument as above provided, the title to the property
shall automatically revert to the legal heirs of the DONOR in common.
Pursuant to the first condition abovementioned, Justa Kausapin executed a Deed of
Conveyance of Unregistered Real Property by Reversion conveying to Maxima
Hemedes the subject property except the possession and enjoyment of the said property
which shall remain vested in Justa Kausapin during her lifetime, or widowhood and
which upon her death or remarriage shall also automatically revert to, and be
transferred to Maxima Hemedes.
Maxima Hemedes and her husband Raul Rodriguez constituted a real estate mortgage
over the subject property in its favor to serve as security for a loan which they obtained
in the amount of P6,000.00., R & B Insurance extrajudicially foreclosed the mortgage
since Maxima Hemedes failed to pay the loan even after it became due. The land was
sold at a public auction with R & B Insurance as the highest bidder and a certificate of
sale was issued by the sheriff in its favor. Since Maxima Hemedes failed to redeem the
property within the redemption period, R & B Insurance executed an Affidavit of
Consolidation. The annotation of usufruct in favor of Justa Kausapin was maintained in
the new title.
Despite the earlier conveyance of the subject land in favor of Maxima Hemedes, Justa
Kausapin executed whereby she transferred the same land to her stepson Enrique D.
Hemedes, pursuant to the resolutory condition in the deed of donation executed in her
favor by her late husband Jose Hemedes. Enriques D. Hemedes sold the property to
Dominium Realty and Construction Corporation (Dominium). Dominium leased the
property to its sister corporation Asia Brewery, Inc. (Asia Brewery) who, even before
the signing of the contract of lease, constructed two warehouses made of steel and
asbestos costing about P10,000,000.00 each. Upon learning of Asia Brewery’s
constructions upon the subject property, R & B Insurance sent it a letter informing the
former of its ownership of the property as evidenced by TCT No. 41985 issued in its
favor and of its right to appropriate the constructions since Asia Brewery is a builder in
bad faith.
Dominium and Enrique D. Hemedes filed a complaint with the Court of First Instance
of Binan, Laguna for the annulment of TCT No. 41985 issued in favor of R & B
Insurance and/or the reconveyance to Dominium of the subject property. Specifically,
the complaint alleged that Dominium was the absolute owner of the subject property by
virtue of the deed of sale executed by Enrique D. Hemedes, who in turn obtained
ownership of the land from Justa Kausapin, as evidenced by the Kasunduan. The
plaintiffs asserted that Justa Kausapin never transferred the land to Maxima Hemedes
and that Enrique D. Hemedes had no knowledge of the registration proceedings
initiated by Maxima Hemedes.
The trial court rendered judgment in favor of plaintiffs Dominium and Enrique D.
Hemedes, The Court of Appeals affirmed the assailed decision in toto.
ISSUE:
Which of the two conveyances by Justa Kausapin, the first in favor of Maxima Hemedes
and the second in favor of Enrique D. Hemedes, effectively transferred ownership over
the subject land?
HELD:
Public respondents finding that the Deed of Conveyance of Unregistered Real Property
By Reversion executed by Justa Kausapin in favor of Maxima Hemedes is spurious is
not supported by the factual findings in this case. In upholding the deed of conveyance
in favor of Maxima Hemedes, we must concomitantly rule that Enrique D. Hemedes
and his transferee, Dominium, did not acquire any rights over the subject property.
Justa Kausapin sought to transfer to her stepson exactly what she had earlier
transferred to Maxima Hemedes the ownership of the subject property pursuant to the
first condition stipulated in the deed of donation executed by her husband. Thus, the
donation in favor of Enrique D. Hemedes is null and void for the purported object
thereof did not exist at the time of the transfer, having already been transferred to his
sister. Similarly, the sale of the subject property by Enrique D. Hemedes to Dominium is
also a nullity for the latter cannot acquire more rights than its predecessor-in-interest
and is definitely not an innocent purchaser for value since Enrique D. Hemedes did not
present any certificate of title upon which it relied.
Whether or not R&B Insurance is a purchaser in good faith
R & B Insurance alleges that, contrary to public respondents ruling, the presence of an
encumbrance on the certificate of title is no reason for the purchaser or a prospective
mortgagee to look beyond the face of the certificate of title. We sustain petitioner R & B
Insurances claim that it is entitled to the protection of a mortgagee in good faith.
The annotation of usufructuary rights in favor of Justa Kausapin upon Maxima
Hemedes OCT does not impose upon R & B Insurance the obligation to investigate the
validity of its mortgagor’s title. Usufruct gives a right to enjoy the property of another
with the obligation of preserving its form and substance. The usufructuary is entitled to
all the natural, industrial and civil fruits of the property and may personally enjoy the
thing in usufruct, lease it to another, or alienate his right of usufruct, even by a
gratuitous title, but all the contracts he may enter into as such usufructuary shall
terminate upon the expiration of the usufruct.
Clearly, only the jus utendi and jus fruendi over the property is transferred to the
usufructuary. The owner of the property maintains the jus disponendi or the power to
alienate, encumber, transform, and even destroy the same. This right is embodied in the
Civil Code, which provides that the owner of the property, the usufruct of which is held
by another, may alienate it, although he cannot alter the propertys form or substance, or
do anything which may be prejudicial to the usufructuary.
There is no doubt that the owner may validly mortgage the property in favor of a third
person and the law provides that, in such a case, the usufructuary shall not be obliged
to pay the debt of the mortgagor, and should the immovable be attached or sold
judicially for the payment of the debt, the owner shall be liable to the usufructuary for
whatever the latter may lose by reason thereof.

MARGARITA F. CASTRO vs. NAPOLEON A. MONSOD

G.R. No. 183719               February 2, 2011
FACTS
Petitioner is the registered owner of a parcel of land located on Garnet Street, Manuela
Homes, Pamplona, Las Piñas City, and covered by Transfer Certificate of Title (TCT)
No. T-36071. Respondent, on the other hand, is the owner of the property adjoining the
lot of petitioner, located on Lyra Street, Moonwalk Village, Phase 2, Las Piñas City.
There is a concrete fence, more or less two (2) meters high, dividing Manuela Homes
from Moonwalk Village.
Respondent caused the annotation of an adverse claim against sixty-five (65) sq.m. of
the property of petitioner covered by TCT No. T-36071. The adverse claim was filed
without any claim of ownership over the property. Respondent was merely asserting
the existing legal easement of lateral and subjacent support at the rear portion of his
estate to prevent the property from collapsing, since his property is located at an
elevated plateau of fifteen (15) feet, more or less, above the level of petitioner’s
property.
ISSUE
Whether the easement of lateral and subjacent support that exists on the subject
adjacent properties may be annotated at the back of the title of the servient estate.
RULING
No, because an annotation of the existence of the subjacent and lateral support is no
longer necessary. It exists whether or not it is annotated or registered in the registry of
property. A judicial recognition of the same already binds the property and the owner
of the same, including her successors-in-interest. Otherwise, every adjoining landowner
would come to court or have the easement of subjacent and lateral support registered in
order for it to be recognized and respected.

Eliseo Fajardo Jr., vs Freedom to Build Inc.

G. R. No. 134692 August 1, 2000
Facts: Freedom to Build Inc., an owner-developer and seller of low-cost housing sold to
petitioner-spouses a house and lot in the De La Costa Homes, in Barangka, Marikina,
Metro Manila. The Contract to sell executed between the parties, contained a Restrictive
Covenant providing certain prohibitions, to wit:
“Easements. For the good of the entire community, the homeowner must observe a two-
meter easement in front. No structure of any kind (store, garage, bodega, etc.) may be
built on the front easement.
“Upward expansion. A second storey is not prohibited. But the second storey expansion
must be placed above the back portion of the house and should not extend forward
beyond the apex of the original building.
“Front expansion: 2nd Storey: No unit may be extended in the front beyond the line as
designed and implemented by the developer in the 60 sq. m. unit. In other words, the
2nd floor expansion, in front, is 6 meters back from the front property line and 4 meters
back from the front wall of the house, just as provided in the 60 sq. m. units.”
The above restrictions were also contained in Transfer Certificate of Title No. N-115384
covering the lot issued in the name of petitioner-spouses.
The controversy arose when the petitioners despite repeated demand from the
respondent, extended the roof of their house to the property line and expanded the
second floor of their house to a point directly above the original front wall. Respondent
filed before the RTC an action to demolish the unauthorized structures.
The RTC rendered a judgment against the petitioner ordering them to immediately
demolish and remove the extension of their expanded housing unit that exceeds the
limitations imposed by the Restrictive Covenant, otherwise the Branch Sheriff of this
Court will execute the this decision at the expense of the defendants.
On appeal, the CA affirmed the decision of the RTC. Hence, this petition for review.
Issue: Whether or not the for the lack of a specific provision, prescribing the penalty of
the demolition in the “Restrictive Covenant” in the event of the breach thereof, the
prayer of the respondent to demolish the structure should fail.
Ruling:
The Court held that the argument of the petitioner-spouses has no merit; Article 1168 of
the New Civil Code states that: “When the obligation consists in not doing and the
obligor does what has been forbidden him, it shall be undone at his expense.”
This Court is not unaware of its ruling in Ayala Corporation vs. Ray Burton
Development Corporation, which has merely adjudged the payment of damages in lieu
of demolition. In the aforementioned case, however, the elaborate mathematical
formula for the determination of compensatory damages which takes into account the
current construction cost index during the immediately preceding 5 years based on the
weighted average of wholesale price and wage indices of the National Census and
Statistics Office and the Bureau of Labor Statistics is explicitly provided for in the Deed
of Restrictions entered into by the parties. This unique and peculiar circumstance,
among other strong justifications therein mentioned, is not extant in the case at bar.
In sum, the Court holds that since the extension constructed exceeds the floor area
limits of the Restrictive Covenant, petitioner spouses can be required to demolish the
structure to the extent that it exceeds the prescribed floor area limits.
Wherefore, the assailed decision of the Court of Appeals is AFFIRMED. No costs.
SO ORDERED.
Case Digest: SPS. Manuel & Victoria Salimbangon vs. SPS. Santos & Erlinda Tan
G.R. No. 185240 I January 20, 2010
FACTS:
Guillermo Ceniza died intestate leaving a parcel of land at Poblacion, Mandaue City.
Twenty years later his children executed an extrajudicial declaration of heirs and
partition, adjudicating and dividing the land among themselves. Lots A, B, and C were
adjacent to a city street. But Lots D and E were not, they being interior lots. To give
these interior lots access to the street, the heirs established in their extrajudicial partition
an easement of right of way consisting of a 3-meter wide alley between Lots D and E
that continued on between Lots A and B and on to the street. The partition that
embodied this easement of right of way was annotated on the individual titles issued to
the heirs.

But, realizing that the partition resulted in an unequal division of the property, the heirs
modified their agreement by eliminating the easement of right of way along Lots A, D,
and E, and in its place, imposed a 3-meter wide alley, an easement of right of way, that
ran exclusively along the southwest boundary of Lot B from Lots D and E to the street.

Petitioner Victoria became the owner of Lot A, one of the three lots adjacent to the city
street. Victoria and her husband (the Salimbangons) constructed a residential house on
this lot and built two garages on it. One garage abutted the street while the other,
located in the interior of Lot A, used the alley or easement of right of way existing on
Lot B to get to the street. Victoria had this alley cemented and gated.

Respondent spouses Santos and Erlinda Tan (the Tans) bought Lots B, C, D, and E from
all their owners. The Tans built improvements on Lot B that spilled into the easement
area. They also closed the gate that the Salimbangons built. Unable to use the old right
of way, the Salimbangons lodged a complaint with the City Engineer of Mandaue
against the Tans. For their part, the Tans filed an action against the Salimbangons for
the extinguishment of the easement on Lot B and damages with application for
preliminary injunction.

ISSUE:
Whether or not the easement of right of way established by the partition agreement
among the heirs has been extinguished.

DECISION:
The easement of right way for the benefit of Lots D and E was extinguished. The Court
affirmed the Court of Appeals' decision that based on the testimony of one of the
previous owners, Eduardo Ceniza, the true intent of the parties was to establish that
easement of right of way for the benefit of the interior lots, namely, Lots D and E.
Consequently, when ownership of Lots B, D, and E was consolidated into the Tans, the
easement ceased to have any purpose and became extinct. 

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

Petitioners, v.

 ARB CONSTRUCTION CO., INC.,

Respondent.

 G.R. No. 157285, 2007 February 16, Corona, R.C.

 J.,
 (First Division)

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.

Petitioner Woodridge School is the usufructuary of a parcel of land 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 to that of Woodridge.
Respondent ARB Construction is the owner and developer of Soldiers Hills Subdivision
in Bacoor, Cavite, which is composed of four phases. Phase 1 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. Petitioners’ properties sit right in the middle of several estates:
Phase 1 of Soldiers Hills Subdivision in the north, a creek in the east and Green Valley
Subdivision in 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. Petitioners offered to pay ARB P50,000 as indemnity for the use of the
road. ARB refused the offer and fenced the perimeter of the road fronting the properties
of petitioners, thus, cutting of petitioners’ access to and from the public highway. After
failing to settle the matter amicably, petitioners jointly filed a complaint in the RTC 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. The RTC rendered
its decision in favor of petitioners relying on the ruling of the Supreme Court in White
Plains Association, Inc. vs. Legaspi (193 SCRA 765) stating that the government
automatically becomes the owner of the subdivisions’ roads the moment the
subdivision plan is approved, and thus is open to public use without any need for
compensation. Respondent ARB elevated the case to the Court of Appeals. The
appellate court reversed the Trial Court’s decision and stating that the ruling of the
Supreme Court in the 1991 case of White Plains Subdivision is not applicable as it was
not similarly situated as in the present case. However the appellate court went on to
rule that a compulsory right of way exists in favor of petitioners as there is no other
existing adequate outlet to and from petitioners’ properties to the Marcos Alvarez
Avenue other than the subject existing road lot belonging to ARB. In addition, it
awarded P500,000 toARB as compensation for the wear and tear that petitioners’ use of
the road would contribute to. Unsatisfied with the ruling of the appellate court,
petitioners elevated the matter to the Supreme Court arguing that ARB is not entitled to
be paid any indemnity since the contested road lot is a property of public dominion
pursuant to Article 420 of the Civil Code because the disputed road falls under the
category of “others of similar character” which is the last clause of Article 420 (1).
Hence, it is a property of public dominion which can be used by the general public
without need for compensation. Petitioners also assert that their initial offer of P50,000
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.

ISSUES:

1. Whether the disputed road is a property of public dominion pursuant to the

lastclause of Article 420 (1), and, as such, is not a valid subject for legal easement.2.

 Whether the offer of petitioners amounting to P50,000 is a sufficient compensation for

their use of the road.

DECISION:

With regard to the first issue, The Supreme Court says, no. 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, Otherwise, they remain to be private properties of the owner developer.
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. The local government should first
acquire them by donation, purchase, or expropriation, if they are to be utilized as a
public road. In the present case, 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. With regard to the second issue the Supreme Court
again says, no. In order 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. In the present case,
all of the requisites are present except for number two. 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. 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. The Civil Code categorically
provides for the measure by which the proper indemnity may be computed. Under
Article 649, paragraph 2, it is stated:

“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.” 
  Having settled the legal issues, the Supreme Court ordered the remand of the case to
the trial court for the 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. The petition was PARTIALLY GRANTED

G.R. No. 97039 April 24, 1992

CONCORDIO ABELLANA, SR., PEDRO E. MENDEZ, VERANO BADANA,

CONCORDIO ABELLANA, JR., TEODOLFO ABELLANA, MUSSULINI BUCAO,
REMEDIOS GARCIANO, ALFREDO SY, JUANITO JABELLANA, CATALINO
LABANDERO, PURISIMO JABELLANA, ANDRES LASTIMOSA, LUCRESIA VDA. DE
BENTE, PAULA VDA. DE BACUS, ARTURO JABELLANA, FLORENTINO LARIOSA,
LEODY DE LA PEÑA, PELAGIA JABELLANA, FE GOCELA, SEVERINO
QUINAMADA and NARCISA LASTIMOSA, Petitioners,

-versus-

HON. COURT OF APPEALS, ORLANDO P. NAYA, ROSENDO ESTOYE, JR. and the
MUNICIPAL GOVERNMENT OF TALISAY, CEBU, represented by the Mayor and
MEMBERS OF THE SANGGUNIANG BAYAN, Respondents, APOLINARIO ENGUIO,
RICO VILLARIN, MARIA ROSARIO BALBUENA, JOSE TIROL, ASUNCION DE LA
PEÑA, ROGELIO B. GUYOT, LEONIZA FAUSTINO, MAMERTO ZAMORAS,
ANTONIO CAL, VICENTE ALMENDRAS, MICHAEL SERRANO, EDUARDO
PADERNOS, MA. LUZ SANCHEZ, R. CABARERO, OSCAR NAPOLI and ROBERTO
BUENO, intervenors.

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

FACTS:

Petitioners are owners of a parcel of land on the northwest side of Nonoc Subdivision,
Cebu. They sued to establish an easement of a right of way over a subdivision road,
which they claim they have acquired through prescription since their ancestors have
been using these since time immemorial. They pray that the concrete wall surrounding
the village be taken down to allow easy access to the public highway.

RTC held in favor of the petitioners ordering the respondents to demolish the subject
fences or enclosures at the dead ends of the subject lot at their expense and to leave
them open for the use of the plaintiffs and the general public.
However, the Court of Appeals reversed the lower court’s decision averring that road
lots in subdivisions are private property and may only be used as a public highway
once acquired by the government through donation, purchase or expropriation. The
petitioner filed for a motion for reconsideration which was also denied. Hence, the
petition of the instant case.

ISSUE:

Whether or not the easement of a right of way may be acquired by prescription?

HELD:

No. Article 620 of the Civil Code provides that only continuous and apparent easements
may be acquired by prescription. The easement of a right of way cannot be considered
continuous because its use is at intervals and is dependent on the acts of man.

WHEREFORE, finding no merit in the petition for review, the same is DENIED with
costs against the petitioners.

BICOL AGRO-INDUSTRIAL PRODUCERS COOPERATIVE, INC. (BAPCI) vs.

OBIAS, et al.
Facts:
The Bicol Sugar Development Corporation (BISUDECO) was established at
Himaao, Pili, Camarines Sur. In the same year, BISUDECO constructed a road ("the
disputed road") – measuring approximately 7 meters wide and 2.9 kilometers long. The
disputed road was used by BISUDECO in hauling and transporting sugarcane to and
from its mill site (Pensumil) and has thus become indispensable to its sugar milling
operations.
Respondents unjustifiably barricaded the disputed road by placing bamboos,
woods, placards and stones across it, preventing petitioner’s and the other sugar
planter’s vehicles from passing through the disputed road, thereby causing serious
damage and prejudice to petitioner.
Petitioner alleged that BISUDECO constructed the disputed road pursuant to an
agreement with the owners of the ricefields the road traversed. The agreement provides
that BISUDECO shall employ the children and relatives of the landowners in exchange
for the construction of the road on their properties. Petitioner contends that through
prolonged and continuous use of the disputed road, BISUDECO acquired a right of way
over the properties of the landowners, which right of way in turn was acquired by it
when it bought BISUDECO’s assets. Petitioner prayed that respondents be permanently
ordered to restrain from barricading the disputed road and from obstructing its free
passage.
Respondents denied having entered into an agreement with BISUDECO
regarding the construction and the use of the disputed road. They alleged that
BISUDECO, surreptitiously and without their knowledge and consent, constructed the
disputed road on their properties and has since then intermittently and discontinuously
used the disputed road for hauling sugarcane despite their repeated protests.
Respondents claimed they tolerated BISUDECO in the construction and the use of the
road since BISUDECO was a government-owned and controlled corporation, and the
entire country was then under Martial Law. Respondents likewise denied that the road
has become a public road, since no public funds were used for its construction and
maintenance.
The RTC ruled that petitioner failed to present any concrete evidence to prove
that there was an agreement between BISUDECO and respondents for the construction
of the disputed road. Moreover, it held that petitioner did not acquire the same by
prescription.
The CA affirmed the finding of the RTC that there was no conclusive proof to
sufficiently establish the existence of an agreement between BISUDECO and
respondents regarding the construction of the disputed road. Moreover, the CA also
declared that an easement of right of way is discontinuous and as such cannot be
acquired by prescription.
Issue:

1. Whether or not there is an existing agreement between BISUDECO and

Respondents

2. Whether or not the principles of prescription, laches and estoppels is

applicable in this case

Held:

1. No. In order for petitioner to acquire the disputed road as an easement of right-of-
way, it was incumbent upon petitioner to show its right by title or by an agreement
with the owners of the lands that said road traversed.

Easement or servitude is an encumbrance imposed upon an immovable for the

benefit of another immovable belonging to a different owner. By its creation, easement
is established either by law (in which case it is a legal easement) or by will of the parties
(a voluntary easement). In terms of use, easement may either be continuous or
discontinuous. The easement of right of way – the privilege of persons or a particular
class of persons to pass over another’s land, usually through one particular path or
linen – is characterized as a discontinuous easement because its use is in intervals
and depends on the act of man. Because of this character, an easement of a right of
way may only be acquired by virtue of a title.

Article 622 of the New Civil Code is the applicable law in the case at bar, viz:

Art. 622. Continuous non-apparent easements, and discontinuous ones, whether

apparent or not, may be acquired only by virtue of a title.
 It is clear that the plaintiff failed to present any concrete evidence to prove that
there was such an agreement between BISUDECO and defendants.

The lower court correctly disbelieved the plaintiffs-appellants’ contention that an

agreement existed because there is simply no direct evidence to support this allegation.
BAPCI submitted purely circumstantial evidence that are not sufficiently adequate as
basis for the inference than an agreement existed. By themselves, the circumstances the
plaintiffs-appellants cited – i.e., the employment of sixteen (16) relatives of the
defendants-appellants; the defendants-appellants’ unjustified silence; the fact that the
existence of the agreement is known to everyone, etc. – are events susceptible of diverse
interpretations and do not necessarily lead to BAPCI’s desired conclusion.

2. No. , "It is already well-established that a right of way is discontinuous and, as such,
cannot be acquired by prescription."

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, 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 else’s 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 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.

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. It was
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.

In this case, the presence of railroad tracks for the passage of petitioner’s 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.

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. Hence, even if the road in dispute has been improved
and maintained over a number of years, it will not change its discontinuous nature but
simply make the same apparent. To stress, Article 622 of the New Civil Code states that
discontinuous easements, whether apparent or not, may be acquired only by virtue of a
title.

The question of laches is addressed to the sound discretion of the court and each
case must be decided according to its particular circumstances.

Philippines, which provides:

Art. 622. Continuous non-apparent easements, and discontinuous ones, whether

apparent or not, may be acquired only by virtue of a title.

The eminent jurist, former Senator Arturo M. Tolentino, opines that this
provision seeks to prevent the imposition of a burden on a tenement based purely on
the generosity, tolerance and spirit of neighborliness of the owners thereof.

We applied the cited provision to the case in ruling that no easement of right
of way was acquired; based on the evidence presented, the plaintiff-appellant failed
to satisfactorily prove the existence of an agreement evidencing any right or title to
use the disputed road. We additionally rejected the plaintiff-appellant’s position that
it had acquired the easement of right of way through acquisitive prescription, as
settled jurisprudence states that an easement of right of way cannot be acquired by
prescription.

We find that the positive mandate of Article 622 of the Civil Code – the
statutory provision requiring title as basis for the acquisition of an easement of a
right of way – precludes the application of the equitable principle of laches.

This Court agrees with the CA. The fact that the law is categorical that
discontinuous easements cannot be acquired by prescription militates against
petitioner’s claim of laches. To stress, discontinuous easements can only be acquired
by title. On the other hand, as to the issue of estoppel, this Court likewise agrees with
the finding of the CA that petitioner did not present any evidence that would show an
admission, representation or conduct by respondents that will give rise to estoppel.
ST. MICHAEL SCHOOL OF CAVITE, INC. and SPOUSES CLAVERIA v MASAITO
DEVELOPMENT
CORPORATION and REXLON REALTY GROUP, INC.,
G.R. No. 166301

(Note: Only issue related as to who may be a real party in interest for the complaint for
easement of right
of way was presented in this digest.)

FACTS:

Petitioner St. Michael School of Cavite, Inc. is owned by petitioners-spouses

Crisanto S. Claveria and Gloria M. Claveria. Respondents Masaito Development
Corporation (Masaito) and Rexlon Realty Group, Inc. (Rexlon) own, operate, and
manage Citihomes Molino IV, Bacoor, Cavite (Citihomes). St. Michael is located
outside the northern perimeter fence of Citihomes. Its passageway occupies a
portion of the 61-square meter lot described as Lot 4, Block 7, Phase 1 of
Citihomes. The gate to the school is located at the subdivision’s northern perimeter
fence and is the only entrance and exit for the entire school population.

In 2001, Masaito advised petitioners to purchase Lots 1-9, Block 7, Phase 1,

fronting the school at Php 3,579,000. On April 6, 2001, Masaito sent another offer to
sell Lot 4, Block 7 of the subdivision with the right-of-way through the private
roads/drainage facilities of Citihomes at the price of PhP 2 Million. Petitioners
refused both proposals, reasoning that the school did not need the entire area
mentioned in the first proposal. St. Michael also said that the second offer was grossly
overpriced.

Petitioners, with four other homeowners, filed a complaint against respondents before
the Bacoor, Cavite RTC, for easement of right-of-way with damages and preliminary
injunction and/or temporary restraining order (TRO). The RTC dismissed the
complaint for lack of cause of action the complaint as to four homeowners and
with respect to St. Michael, on the ground that it is not a registered owner of
any property that is the subject matter of the easement case, hence not a real party-in-
interest.

ISSUE:
WON the trial court erred when it ruled that the school, not being the registered owner
of the subject lot, is not a real party-in-interest

HELD:
The trial court erred when it ruled that the school, not being the registered owner of the
subject lot, is not a real party-in- interest. It will suffice under Art. 649 of the Civil Code
that “any person who by virtue of a real right may cultivate or use any immovable
which is surrounded by other immovables pertaining to other persons and
without adequate outlet to a public highway, is entitled to demand a right of
way.” Clearly, the school is a real party-in-interest since it has established a
right to use the passageway for the benefit of its students. More importantly, the
records reveal that petitioners-spouses are the owners of the lot where the school is
located and they are the incorporators, trustees, and officers of St. Michael. They are
also authorized to represent the corporation in the complaint and subsequent
actions. Thus, petitioners are real parties-in-interest and we rule that the
dismissal of the complaint is patently erroneous and bereft of any legal basis.
Petitioners must be allowed to pursue their case before the trial court.

DICHOSO VS VALDEZ
FACTS:

On August 2, 2002, petitioners filed a Complaint for Easement of Right of Way against
respondent Patrocinio L. Marcos. In their complaint, petitioners alleged that they are
the owners of Lot No. 21553 of the Cadastral Survey of Laoag City; while respondent is
the owner of Lot No. 1. As petitioners had no access to a public road to and from their
property, they claimed to have used a portion of Lot No. 1 in accessing the road since
1970. Respondent, however, blocked the passageway with piles of sand. Though
petitioners have been granted another passageway by the spouses Benjamin and Sylvia
Arce (Spouses Arce), the owners of another adjacent lot, the former instituted the
complaint before the RTC and prayed that they be granted a right of way over an area
of 54 sqm of Lot 01 by paying the defendant the amount ofP54,000.00, and that the right
be annotated on defendant’s title. In addition to that, the defendant will pay the
plaintiffs the sum of P30,000.00 as damages for attorney’s fees and costs of suit.

In the defendant’s answer, he denied that he allowed anybody to use Lot No. 1 as
passageway. Moreover, he stated that petitioners’ claim of right of way is only due to
expediency and not necessity for there already is an existing easement of right of way
available to petitioners granted by the Spouses Arce. Thus, there is no need to establish
another easement over respondent’s property.

The RTC rendered a decision in favor of the petitioners by finding that they had
adequately established the requisites to justify an easement of right of way in
accordance with Articles 649 and 650 of the Civil Code. Also, the trial court declared
petitioners in good faith as they expressed their willingness to pay proper indemnity.
however, the he CA reversed and set aside the RTC decision ruling that a right of way
had already been granted by the sevient estate. Thus, there is no need to establish an
easement over the respondent’s property.
ISSUE: Whether or not the petitioners are entitled to a grant of legal easement of right
of way from their landlocked property through the property of private respondent
which is the shortest route in going to and from their property to the public street.

HELD:

The petition is without merit.

CIVIL LAW : Easement

An easement involves an abnormal restriction on the property rights of the servient

owner and is regarded as a charge or encumbrance on the servient estate. It is
incumbent upon the owner of the dominant estate to establish by clear and convincing
evidence the presence of all the preconditions before his claim for easement of right of
way may be granted.

To be entitled to an easement of right of way, the following requisites should be met:

first, the dominant estate is surrounded by other immovables and has no adequate
outlet to a public highway; second, there is payment of proper indemnity; third, the
isolation is not due to the acts of the proprietor of the dominant estate; and fourth, 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.

In the case at hand, the petitioners failed to show sufficient factual evidence to satisfy
the above-enumerated requirements. Admittedly, they had been granted a right of way
through the other adjacent lot owned by the Spouses Arce. In fact, other lot owners use
the said outlet in going to and coming from the public highway. Clearly, there is an
existing outlet to and from the public road.

However, petitioners claim that the outlet is longer and circuitous, and they have to
pass through other lots owned by different owners before they could get to the
highway. We find petitioners’ concept of what is “adequate outlet” a complete
disregard of the well-entrenched doctrine that in order to justify the imposition of an
easement of right of way, there must be real, not fictitious or artificial, necessity for it.
Mere convenience for the dominant estate is not what is required by law as the basis of
setting up a compulsory easement. Even in the face of necessity, if it can be satisfied
without imposing the easement, the same should not be imposed.

The convenience of the dominant estate has never been the gauge for the grant of
compulsory right of way. To be sure, the true standard for the grant of the legal right is
“adequacy.” Hence, when there is already an existing adequate outlet from the
dominant estate to a public highway, as in this case, even when the said outlet, for one
reason or another, be inconvenient, the need to open up another servitude is entirely
unjustified.

Therefore, the petition is denied.

The Court affirms the ruling of the CA.

QUIMEN V. CA- Easement

LEAST DAMAGE > SHORTEST DISTANCE
When the easement may be established on any of several tenements surrounding the
dominant estate, the one where the way is shortest and will cause the least damage
should be chosen. However, as elsewhere stated, if these two (2) circumstances do not
concur in a single tenement, the way which will cause the least damage should be used,
even if it will not be the shortest.

FACTS:
Anastacia Quimen, together with her 3 brothers and sister, inherited a piece of property
in Bulacan. They agreed to subdivide the property equally among themselves. The
shares of Anastacia and 3 other siblings were next to the municipal road. Anastacia’s
was at the extreme left of the road while the lots on the right were sold by her brothers
to Catalina Santos. A portion of the lots behind Anastacia’s were sold by her (as her
brother’s adminstratix) brother to Yolanda.
Yolanda was hesitant to buy the back property at first because it d no access to the
public road. Anastacia prevailed upon her by assuring her that she would give her a
right of way on her adjoining property (which was in front) for p200 per square meter.
Yolonda constructed a house on the lot she bought using as her passageway to the
public highway a portion of anastacia’s property. But when yolanda finally offered to
pay for the use of the pathway anastacia refused to accept the payment. In fact she was
thereafter barred by Anastacia from passing through her property.
After a few years, Yolanda purchased another lot from the Quimens (a brother), located
directly behind the property of her parents who provided her a pathway gratis et amore
between their house, extending about 19m from the lot of Yolanda behind the sari-sari
store of one brother, and Anastacia’s perimeter fence.
In 1987, Yolanda filed an action with the proper court praying for a right of way
through Anastacia’s property. The proposed right of way was at the extreme right of
Anastacia’s property facing the public highway, starting from the back of the sari-sari
store and extending inward by 1m to her property and turning left for about 5m to
avoid the store in order to reach the municipal road. The way was unobstructed except
for an avocado tree standing in the middle.
The trial court dismissed the complaint for lack of cause of action, explaining that the
right of way through the brother’s property was a straight path and to allow a detour
by cutting through Anastacia’s property would no longer make the path straight. They
held that it was more practical to extend the existing pathway to the public road by
removing that portion of the store blocking the path as that was the shortest route to the
public road and the least prejudicial to the parties concerned than passing through
Anastacia’s property.

CA reversed and held that Yolanda was entitled to a right of way on Anastacia’s
property. The court, however, did not award damages to her and held that Anastacia
was not in bad faith when she resisted the claim.

Anastacia went to the SC alleging that her lot should be considered as a servient estate
despite the fact that it does not abut or adjoin the property of private respondent. She
denies ever promising Yolonda a right of way.

Anastacia also argues that when Yolanda purchased the second lot, the easement of
right of way she provided 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.

She also strongly maintains that the proposed right of way is not the shortest access to
the public road because of the detour and that, moreover, she is likely to suffer the most
damage as she derives a net income of P600.00 per year from the sale of the fruits of her
avocado tree, and considering that an avocado has an average life span of seventy (70)
years, she expects a substantial earning from it.

ISSUE:
1) Whether or not there was a valid grant of an easement
2) Whether or not the right of way proposed by Yolonda is the least onerous/least
prejudicial to the parties

HELD: YES to both

1) 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 another’s property when his tenement is
surrounded by realties belonging to others without an adequate outlet to the public
highway. The owner of the dominant estate can demand a right of way through the
servient estate provided he indemnifies the owner thereof for the beneficial use of his
property.

The conditions for a valid grant of an easement of right of way are:

(a) the dominant estate is surrounded by other immovables without an adequate outlet
to a public highway;
(b) the dominant estate is willing to pay the proper indemnity;
(c) the isolation was not due to the acts of the dominant estate; and,
(d) the right of way being claimed is at a point least prejudicial to the servient estate.

These elements were clearly present. The evidence clearly shows that the property of
private respondent is hemmed in by the estates of other persons including that of
petitioner; that she offered to pay P200.00 per square meter for her right of way as
agreed between her and petitioner; that she did not cause the isolation of her property;
that the right of way is the least prejudicial to the servient estate. These facts are
confirmed in the ocular inspection report of the clerk of court, more so that the trial
court itself declared that “[t]he said properties of Antonio Quimen which were
purchased by plaintiff Yolanda Quimen Oliveros were totally isolated from the public
highway and there appears an imperative need for an easement of right of way to the
public highway.

2) Article 650 of the NCC 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 of judicial appreciation. When the easement
may be established on any of several tenements surrounding the dominant estate, the
one where the way is shortest and will cause the least damage should be chosen.
However, as elsewhere stated, if these two (2) circumstances do not concur in a single
tenement, the way which will cause the least damage should be used, even if it will not
be the shortest.

TC’s findings:
> Yolanda’s property was situated at the back of her father’s property and held that
there existed an available space of about 19m long which could conveniently serve as a
right of way between the boundary line and the house of Yolanda’ s father
> The vacant space ended at the left back of the store which was made of strong
materials
> Which 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.
CA’s finding:
> The proposed right of way of Yolanda, which is 1m wide and 5m long at the extreme
right of Anastacia’s 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, the SC 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.

CRISOSTOMO B. AQUINO vs. MUNICIPALITY OF MALAY AKLAN,

G.R. No. 211356; September 29, 2014
DOCTRINE: Based on law and jurisprudence, the office of the mayor has quasi-judicial
powers to order the closing and demolition of establishments. This power granted by
the LGC, as earlier explained, We believe, is not the same power devolved in favor of
the LGU under Sec. 17 (b)(2)(ii), as above-quoted, which is subject to review by the
DENR. The fact that the building to be demolished is located within a forestland under
the administration of the DENR is of no moment, for what is involved herein, strictly
speaking, is not an issue on environmental protection, conservation of natural
resources, and the maintenance of ecological balance, but the legality or illegality of the
structure. Rather than treating this as an environmental issue then, focus should not be
diverted from the root cause of this debacle compliance.
 FACTS
Petitioner is the president and chief executive officer of Boracay Island West Cove
Management Philippines, Inc. (Boracay West Cove). On January 7, 2010, the company
applied for a zoning compliance with the municipal government of Malay,
Aklan.2 While the company was already operating a resort in the area, and the
application sought the issuance of a building permit covering the construction of a
three-storey hotel over a parcel of land measuring 998 sqm. located in Sitio Diniwid,
Barangay Balagab, Boracay Island, Malay, Aklan, which is covered by a Forest Land
Use Agreement for Tourism Purposes (FLAgT) issued by the Department of
Environment and Natural Resources (DENR) in favor of Boracay West Cove.
Through a Decision on Zoning dated January 20, 2010, the Municipal Zoning
Administrator denied petitioner’s application on the ground that the proposed
construction site was within the “no build zone” demarcated in Municipal Ordinance
2000-131 (Ordinance).
Petitioner appealed the denial action to the Office of the Mayor but despite follow up,
no action was ever taken by the respondent mayor. A Cease and Desist Order was
issued by the municipal government, enjoining the expansion of the resort, and on June
7, 2011, the Office of the Mayor of Malay, Aklan issued the assailed EO 10, ordering the
closure and demolition of Boracay West Cove’s hotel.
Petitioner filed a Petition for Certiorari with prayer for injunctive relief with the CA
Alleging that the order was issued and executed with grave abuse of discretion.
PETITIONER CONTENTION: The hotel cannot summarily be abated because it is not a
nuisance  per se, given the hundred million peso-worth of capital infused in the venture.
And the Municipality of Malay, Aklan should have first secured a court order before
proceeding with the demolition.
RESPONDENTS CONTENTION: The demolition needed no court order because the
municipal mayor has the express power under the Local Government Code (LGC) to
order the removal of illegally constructed buildings.
ISSUE
Whether or not a judicial proceedings be conducted first before the LGU can order the
closure and demolition of the property in question.
RULING
Generally, LGUs have no power to declare a particular thing as a nuisance unless such a
thing is a nuisance  per se.
                      Despite the hotel’s classification as a nuisance per accidens, however, we still
find in this case that the LGU may nevertheless properly order the hotel’s demolition.
This is because, in the exercise of police power and the general welfare clause, property
rights of individuals may be subjected to restraints and burdens in order to fulfill the
objectives of the government. Otherwise stated, the government may enact legislation
that may interfere with personal liberty, property, lawful businesses and occupations to
promote the general welfare.
Under the law, insofar as illegal constructions are concerned, the mayor can, after
satisfying the requirement of due notice and hearing, order their closure and
demolition.
One such piece of legislation is the LGC, which authorizes city and municipal
governments, acting through their local chief executives, to issue demolition orders.
Under existing laws, the office of the mayor is given powers not only relative to its
function as the executive official of the town; it has also been endowed with authority to
hear issues involving property rights of individuals and to come out with an effective
order or resolution thereon. 20 Pertinent herein is Sec. 444 (b) (3) (vi) of the LGC, which
empowered the mayor to order the closure and removal of illegally constructed
establishments for failing to secure the necessary permits.

Preysler v. Manila Southcoast (Short title)

GR # 171872 | June 28, 2010
Petition: Petition for Review of CA decision
Petitioner: Fausto R. Preysler, Jr.
Respondents: Manila Southcoast Development Corporation
(Rule 15, Rules on Civil Procedure)

DOCTRINE
The three-day notice rule is not absolute. A liberal construction of the procedural rules
is proper where the lapse in the literal observance of a rule of procedure has not
prejudiced the adverse party and has not deprived the court of its authority.

FACTS
- Preysler filed with the Municipal Trial Court (MTC) of Batangas a complaint for
forcible entry against Manila Southcoast Development Corporation.
o The subject matter of the complaint is a parcel of land with an area of
21,922 square meters located in Sitio Kutad, Barangay Papaya, Nasugbu,
Batangas.
o The disputed land, covered by Transfer Certificate of Title (TCT) No. TF-
1217 in the name of Preysler, is also within the property covered by TCT
No. T-72097 in the name of respondent.company. TCT No. T-72097 covers
three contiguous parcels of land with an aggregate area of 86,507,778
square meters.
- MTC: Ruled in favor of Preysler and ordered respondent company to vacate the
disputed land covered by TCT No. TF-1217 and to return the possession.
- RTC: Reversed the MTC decision and dismissed the complaint
- Preysler received the RTC Decision on 9 February 2004 and thereafter filed a
Motion for Reconsideration, which was set for hearing on 26 February 2004.
- Preysler sent a copy of the Motion for Reconsideration to respondent company’s
counsel by registered mail on 23 February 2004.
- During the 26 February 2004 scheduled hearing of the motion, the RTC judge
reset the hearing to 2 April 2004 because the courts calendar could not
accommodate the hearing of the motion.
- It was only on 3 March 2004, or 6 days after the scheduled hearing on 26
February 2004, that respondents counsel received a copy of petitioners Motion
for Reconsideration.
- The rescheduled hearing on 2 April 2004 was again reset on 7 May 2004 because
the RTC judge was on official leave.
- The 7 May 2004 hearing was further reset to 6 August 2004. After the hearing,
respondent company filed its Motion to Dismiss dated 9 August 2004, claiming
that non-compliance with the three-day notice rule did not toll the running of the
period of appeal, which rendered the decision final.
- RTC: On October 4, 2004, denied the Motion for Reconsideration for failure to
appeal within the 15 days reglementary period and declaring the 22 January 2004
Decision as final and executory.
o Motion for Reconsideration was fatally flawed for failure to observe the
three-day notice rule.
o Preysler filed an Omnibus Motion for Reconsideration of the Order dated
4 October 2004.
- RTC: In its Order dated 22 February 2005, dismissed the Omnibus Motion.
- A petition for certiorari was then filed with the Court of Appeals, alleging that
the RTC committed grave abuse of discretion in dismissing the Motion for
 Reconsideration and Omnibus Motion for alleged failure to observe the three-
day notice rule.
- CA: Dismissed the petition.
o The three-day notice rule under Sections 4, 5, and 6 of Rule 15 of the Rules
of Court is mandatory and non-compliance therewith is fatal and renders
the motion pro forma.
o As found by the RTC, Preysler’s Motion for Reconsideration dated 12
February 2004 was received by respondent only on 3 March 2004, or six
days after the scheduled hearing on 26 February 2004.
o All violations of Sections 4, 5, and 6 of Rule 15 are deemed fatal.
- Thus, this petition.

ISSUE/S
1. W/N the CA committed grave error in affirming the ruling of RTC that the three-
day notice rule was violated

PROVISIONS

Rule 15

Section 4. Hearing of motion. — Except for motions which the court may act upon
without prejudicing the rights of the adverse party, every written motion shall be set for
hearing by the applicant.

Every written motion required to be heard and the notice of the hearing thereof shall be
served in such a manner as to ensure its receipt by the other party at least three (3) days
before the date of hearing, unless the court for good cause sets the hearing on shorter
notice. (4a)

Section 5. Notice of hearing. — The notice of hearing shall be addressed to all parties
concerned, and shall specify the time and date of the hearing which must not be later
than ten (10) days after the filing of the motion. (5a)

Section 6. Proof of service necessary. — No written motion set for hearing shall be acted
upon by the court without proof of service thereof. (6a)

RULING & RATIO

1. YES
- In upholding the RTC, CA relied mainly on petitioners alleged violation of the
notice requirements under Sections 4, 5, and 6, Rule 15 of the Rules of Court
which read:
- The three-day notice rule is not absolute. A liberal construction of the procedural
rules is proper where the lapse in the literal observance of a rule of procedure
 has not prejudiced the adverse party and has not deprived the court of its
authority.
- Section 6, Rule 1 of the Rules of Court provides that the Rules should be liberally
construed in order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding.
- This Court has indeed held time and again, that under Sections 4 and 5 of Rule 15
of the Rules of Court, mandatory is the requirement in a motion, which is
rendered defective by failure to comply with the requirement.
- As a rule, a motion without a notice of hearing is considered pro forma and does
not affect the reglementary period for the appeal or the filing of the requisite
pleading.
- As an integral component of the procedural due process, the three-day notice
required by the Rules is not intended for the benefit of the movant. Rather, the
requirement is for the purpose of avoiding surprises that may be sprung upon
the adverse party, who must be given time to study and meet the arguments in
the motion before a resolution of the court.
- The test is the presence of opportunity to be heard, as well as to have time to
study the motion and meaningfully oppose or controvert the grounds upon
which it is based.
- The requirement of notice of time and hearing in the pleading filed by a party is
necessary only to apprise the other of the actions of the former. Under the
circumstances of the present case, the purpose of a notice of hearing was served.
- In this case, the Court of Appeals ruled that petitioner failed to comply with the
three-day notice rule. However, the Court of Appeals overlooked the fact that
although respondent received petitioners Motion for Reconsideration six days
after the scheduled hearing on 26 February 2004, the said hearing was reset three
(3) times with due notice to the parties.
- It was only on 6 August 2004, or more than five months after respondent
received a copy of petitioners Motion for Reconsideration, that the motion was
heard by the RTC. Clearly, respondent had more than sufficient time to oppose
petitioners Motion for Reconsideration. In fact, respondent did oppose the
motion when it filed its Motion to Dismiss dated 9 August 2004.
- In view of the circumstances of this case, we find that there was substantial
compliance with procedural due process. Instead of dismissing petitioners
Motion for Reconsideration based merely on the alleged procedural lapses, the
RTC should have resolved the motion based on the merits.
- The RTC likewise erred in dismissing petitioners Omnibus Motion for allegedly
failing to comply with the three-day notice requirement.
o Section 4 of Rule 15 provides that every written motion required to be
heard and the notice of the hearing thereof shall be served in such a
manner as to ensure its receipt by the other party at least three (3) days
before the date of the hearing, unless the court for good cause sets the
hearing on shorter notice.
DISPOSITION
WHEREFORE, we GRANT the petition. We SET ASIDE the Decision dated 22
November 2005 and the Resolution dated 3 March 2006 of the Court of Appeals in CA-
G.R. SP No. 89621. We REMAND the case to the Regional Trial Court, Branch 14,
Nasugbu, Batangas to resolve petitioners Motion for Reconsideration and Omnibus
Motion on the merits.

SO ORDERED.

LUCENA GRAND CENTRAL TERMINAL, INC., petitioner, vs. JAC LINER, INC.,
respondent. G.R. No. 148339. February 23, 2005
POLICE POWER

LUCENA GRAND CENTRAL TERMINAL, INC., petitioner, vs. JAC LINER, INC.,
respondent.
G.R. No. 148339. February 23, 2005

Facts:

 The City of Lucena enacted an ordinance which provides, inter alia, that: all buses,
mini-buses and out-of-town passenger jeepneys shall be prohibited from entering the
city and are hereby directed to proceed to the common terminal, for picking-up and/or
dropping of their passengers; and (b) all temporary terminals in the City of Lucena are
hereby declared inoperable starting from the effectivity of this ordinance. It also
provides that all jeepneys, mini-buses, and buses shall use the grand central terminal of
the city. JAC Liner, Inc. assailed the city ordinance as unconstitutional on the ground
that, inter alia, the same constituted an invalid exercise of police power, an undue
taking of private property, and a violation of the constitutional prohibition against
monopolies.

Issue: 

 Whether or not the ordinance satisfies the requisite of valid exercise of police power,
i.e. lawful subject and lawful means.

Held:

 The local government may be considered as having properly exercised its police power
only if the following requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require the interference of the State, and
(2) the means employed are reasonably necessary for the attainment of the object sought
to be accomplished and not unduly oppressive upon individuals. Otherwise stated,
there must be a concurrence of a lawful subject and lawful method
The questioned ordinances having been enacted with the objective of relieving traffic
congestion in the City of Lucena, they involve public interest warranting the
interference of the State. The first requisite for the proper exercise of police power is
thus present. This leaves for determination the issue of whether the means employed by
the Lucena Sangguniang Panlungsod to attain its professed objective were reasonably
necessary and not unduly oppressive upon individuals. The ordinances assailed herein
are characterized by overbreadth. They go beyond what is reasonably necessary to
solve the traffic problem. Additionally, since the compulsory use of the terminal
operated by petitioner would subject the users thereof to fees, rentals and charges, such
measure is unduly oppressive, as correctly found by the appellate court. What should
have been done was to determine exactly where the problem lies and then to stop it
right there.

The true role of Constitutional Law is to effect an equilibrium between authority and
liberty so that rights are exercised within the framework of the law and the laws are
enacted with due deference to rights. It is its reasonableness, not its effectiveness, which
bears upon its constitutionality. If the constitutionality of a law were measured by its
effectiveness, then even tyrannical laws may be justified whenever they happen to be
effective.

SPOUSES VICTOR VALDEZ and JOCELYN VALDEZ v.

SPOUSES FRANCISCO TABISULA and CARIDAD TABISULA

560 SCRA 332 (2008)

The requisites provided in conferment of a legal easement of right of way under the Civil Law
must be complied and such  existence be proven.

Spouses Victor and Jocelyn Valdez bought from Spouses Francisco and Caridad
Tabisula a parcel of land located in San Fernando, La Union. The absolute sale indicated
a right of way.

Spouses Tabisula subsequently built a concrete wall on the western side of the subject
property. Believing that that side is the intended road right of way mentioned in the
deed, Spouses Valdez opposed such act. Conciliation was then initiated. Spouses
Tabisula failed to attend the conferences scheduled. This prompted Spouses Valdez to
file, after more than six years of execution of the deed, a complaint for Specific
Performance with Damages.

Spouses Valdez contended that they purchased the subject property on the assurance of
providing them a road right of way. On the other hand, spouses Tabisula averred that
the 2-meter easement should be taken from the western portion of the subject property
and not theirs.

The trial court dismissed the petition. On appeal, the Court of Appeals affirmed the

dismissal
ISSUES:

Whether or not Spouses Valdez are entitled to the right of way as indicated in the
absolute sale

HELD:

Article 1358 of the Civil Code provides that any transaction involving the sale or
disposition of real property must be in writing. The stipulation harped upon by Spouses
Valdez that they shall be provided a 2 meters wide road right-of-way on the western
side of their lot but which is not included in this sale is not a disposition of real
property. The proviso that the intended grant of right of way is not included in this sale
could only mean that the parties would have to enter into a separate
and distinct agreement for the purpose. The use of the word shall, which is imperative
or mandatory in its ordinary signification, should be construed as merely permissive
where, as in the case at bar, no public benefit or private right requires it to be given an
imperative meaning.

As found, however, by the trial court, which is supported by the Sketch of the location

of the lots of the parties and those adjoining them, a common evidence of the parties,
Spouses Valdez and their family are also the owners of two properties adjoining the
subject property which have access to two public roads or highways.

To be conferred a legal easement of right of way under Article 649, the following
requisites must be complied with: (1) the property is surrounded by other immovables
and has no adequate outlet to a public highway; (2) proper indemnity must be paid; (3)
the isolation is not the result of the owner of the dominant estates own acts; (4) the right
of way claimed is at the point least prejudicial to the servant estate; and (5) to the extent
consistent with the foregoing rule, the distance from the dominant estate to a
public highway may be the shortest. The onus of proving the existence of these
prerequisites lies on the owner of the dominant estate, herein the spouses Valdez.

Since Spouses Valdez then have more than adequate passage to two public roads, they
have no right to demand the grant by spouses Tabisula of an easement on the western
side of Spouses Tabisula‘s lot.

ROBERT TAYABAN y CALIPLIP vs. PEOPLE OF THE PHILIPPINES

G.R. No. 150194, March 6, 2007

By: Zyldjyh P. Portuguez

Facts:
The project proposal of then Mayor Tayaban of Tinoc Ifugao to the provincial governor
for the construction of the Tinoc Public Market was approved to be funded by the
Cordillera Executive Board (CEB). The contract was awarded to Lopez Pugong with the
CEB as the project owner. Actual construction commenced on June 1989 and on August
15, 1989, the Sangguniang Bayan of Tinoc adopted Resolution No. 20 to demolish the
erected structures for the purpose of erecting the Public Market on the allegation that it
was constructed on the wrong site. The said Resolution was passed only in the
afternoon of August 15, 1989, after the subject demolition was conducted in the
morning of the same day.

Issue:
Whether the Sangguniang Bayan Resolution No. 20 is valid and whether the demolition
was a valid exercise of police power.

Ruling:
The court ruled in the the negative. 

Petitioners acted in bad faith in passing Resolution No. 20 having been passed only
after the demolition and their memorandum addressed to the laborers of Pugong
directing the stoppage of the construction was not to be considered as an evidence of
good faith because the project owner was the CEB, thus, it should have been the latter
who should be duly notified. No evidence would show that petitioners informed the
CEB or the Governor of the alleged mistake in the location. By causing undue injury to
the government in demolishing the structures and with evident bad faith, the court
ruled that the petitioners are guilty of violation of the provisions of Sec. 3(e) of RA No.
3019. Petitioner’s claim that the adoption of Resolution No. was a valid exercise of
police power because Pugong failed to obtain the required building permit pursuant to
PD 1076 and Letter of Instruction No. 19, is not persuasive because the said resolution
did not mention such violation. A careful reading of the resolution shows that the only
basis for the demolition was the alleged mistake in the location of the building
construction.

The exercise of police power by the local government is valid unless it contravenes the
fundamental law of the land, or an act of the legislature, or unless it is against public
policy, or is unreasonable, oppressive, partial, discriminating, or in derogation of a
common right. In the present case, the acts of petitioner have been established as a
violation of law, particularly of the provisions of Section 3(e) of R.A. No. 3019. Neither
can petitioners seek cover under the general welfare clause authorizing the abatement
of nuisances without judicial proceedings. This principle applies to nuisances per se, or
those which affect the immediate safety of persons and property and may be summarily
abated under the undefined law of necessity. Petitioners should have made known their
concerns to the CEB or to the Governor.

The assailed decision was affirmed.

AC ENTERPRISES, INC. VS. FRABELLE PROPERTIES CORP.

G.R. NO. 166744. NOVEMBER 2, 2006.
506 SCRA 625

Facts: 

AC enterprises, petitioner herein, is a corporation who owns a 10-storey building

in Makati City. On the other hand, Frabelle, respondent herein, is a condominium
corporation who's condominium development is located behind petitioner. Respondent
complained of the 'unbearable” noise emanating from the blower of the air-conditioning
units of petitioner.

Issues:

WON the “unbearable noise” in the case at bar is a nuisance as to be resolved

only by the courts in the due course of proceedings

HELD:
Yes. It is a nuisance to be resolved only by the courts in the due course of
proceedings; the noise is not a nuisance per se. Noise becomes actionable only when it
passes the limits of reasonable adjustment to the conditions of the locality and of the
needs of the maker to the needs of the listener. Injury to a particular person in a peculiar
position or of especially sensitive characteristics will not render the house an actionable
nuisance–– in the conditions, of present living, noise seems inseparable from the
conduct of many necessary occupations. The determining factor is not its intensity or
volume; it is that the noise is of such character as to produce actual physical discomfort
and annoyance to a person of ordinary sensibilities rendering adjacent property less
comfortable and valuable.

Parayno vs Jovellanos
G.R. No. 148408
Subject: Public Corporation
Doctrine: Police power

Facts:
Petitioner was the owner of a gasoline filling station in Calasiao, Pangasinan. In 1989,
some residents of Calasiao petitioned the Sangguniang Bayan (SB) of said municipality
for the closure or transfer of the station to another location. The matter was referred to
the Municipal Engineer, Chief of Police, Municipal Health Officer and the Bureau of
Fire Protection for investigation. Upon their advise, the Sangguniang Bayan
recommended to the Mayor the closure or transfer of location of petitioner’s gasoline
station. In Resolution No. 50, it declared that the existing gasoline station is a blatant
violation and disregard of existing law.
According to the Resolution, 1) the gasoline filling station is in violation of The Official
Zoning Code of Calasiao, Art. 6, Section 44, the nearest school building which is San
Miguel Elementary School and church, the distances are less than 100 meters. (No
neighbors were called as witnesses when actual measurements were done by HLURB
Staff, Baguio City dated 22 June 1989); 2) it remains in thickly populated area with
commercial/residential buildings, houses closed (sic) to each other which still
endangers the lives and safety of the people in case of fire; 3) residents of our barangay
always complain of the irritating smell of gasoline most of the time especially during
gas filling which tend to expose residents to illness, and 4) It hampers the flow of traffic.
Petitioner moved for the reconsideration of the resolution but was denied by the SB.
Hence she filed a case before the RTC claiming that the gasoline filling station was not
covered under Sec 44 of the mentioned law but is under Sec 21. Case was denied by the
court and by the CA. Hence this appeal.
ISSUE: Whether or not the closure/transfer of her gasoline filling station by respondent
municipality was an invalid exercise of the latter’s police powers
HELD:
The respondent is barred from denying their previous claim that the gasoline filling
station is not under Sec 44. The Counsel in fact admitted that : “That the business of the
petitioner [was] one of a gasoline filling station as defined in Article III, Section 21 of the
zoning code and not as a service station as differently defined under Article 42 of the
said official zoning code;”
The foregoing were judicial admissions which were conclusive on the municipality, the
party making them. hence, because of the distinct and definite meanings alluded to the
two terms by the zoning ordinance, respondents could not insist that “gasoline service
station” under Section 44 necessarily included “gasoline filling station” under Section
21. Indeed, the activities undertaken in a “gas service station” did not automatically
embrace those in a “gas filling station.”
As for the main issue, the court held that the respondent municipality invalidly used its
police powers in ordering the closure/transfer of petitioner’s gasoline station. While it
had, under RA 7160, the power to take actions and enact measures to promote the
health and general welfare of its constituents, it should have given due deference to the
law and the rights of petitioner.
A local government is considered to have properly exercised its police powers only
when the following requisites are met: (1) the interests of the public generally, as
distinguished from those of a particular class, require the interference of the State and
(2) the means employed are reasonably necessary for the attainment of the object sought
to be accomplished and not unduly oppressive. The first requirement refers to the equal
protection clause and the second, to the due process clause of the Constitution.
Respondent municipality failed to comply with the due process clause when it passed
Resolution No. 50. While it maintained that the gasoline filling station of petitioner was
less than 100 meters from the nearest public school and church, the records do not show
that it even attempted to measure the distance, notwithstanding that such distance was
crucial in determining whether there was an actual violation of Section 44. The different
local offices that respondent municipality tapped to conduct an investigation never
conducted such measurement either.
Moreover, petitioner’s business could not be considered a nuisance which respondent
municipality could summarily abate in the guise of exercising its police powers. The
abatement of a nuisance without judicial proceedings is possible only if it is a nuisance
per se. A gas station is not a nuisance per se or one affecting the immediate safety of
persons and property, hence, it cannot be closed down or transferred summarily to
another location.
On the alleged hazardous effects of the gasoline station to the lives and properties of the
people of Calasiao, we again note: “Hence, the Board is inclined to believe that the
project being hazardous to life and property is more perceived than factual. For, after
all, even the Fire Station Commander.. recommended “to build such buildings after
conform (sic) all the requirements of PP 1185.” It is further alleged by the complainants
that the proposed location is “in the heart of the thickly populated residential area of
Calasiao.” Again, findings of the [HLURB] staff negate the allegations as the same is
within a designated Business/Commercial Zone per the Zoning Ordinance.
WHEREFORE, the petition is hereby GRANTED. The assailed resolution of the Court
of the Appeals is REVERSED and SET ASIDE. Respondent Municipality of Calasiao is
hereby directed to cease and desist from enforcing Resolution No. 50 against petitioner
insofar as it seeks to close down or transfer her gasoline station to another location.