G.R. No. 143868

November 14, 2002

FACTS: a fishpond was originally covered by a OCT, co-owned by the Fernandez siblings. 2 of the 5 siblings, Antonio and Demetria, sold their respective shares to the spouses Tarun, both registered and annotated on the OTC.

Later, the co-owners of the subject fishpond and another fishpond executed a Deed of Extra-Judicial Partition of 2 parcels of registered land with exchange of shares. Among the parties to the deed are the Fernandez siblings. It was stipulated in the deed that the parties recognize and respect the sale in favor of Spouses Tarun stated above.

By virtue of the Deed of Extra-Judicial Partition, Angel Fernandez exchanged his share on the 2nd fishpond to the shares of his co-owners in the remaining portion of the first fishpond, making Angel and the Spouses Tarun co-owners of the first fishpond. By virtue of said deed, a TCT was issued in the name of Angel and spouses Tarun. However, it was Angel and later on his heirs who remained in possession of the entire fishpond.

When Angel was still alive, Spouses Tarun sought the partition of the property and their share of its income. Angel refused to heed their demand. After the death of Angel, Spouses Tarun wrote his heirs (petitioners herein) of their desire for partition but this was rejected by the latter. Hence the suit for partition and damages

RTC ruled in favor of petitioners. CA reversed the decision. Hence this petition.

HELD: Petitioners aver that the sale to respondents is void, because it did not comply with the requirements of the Civil Code.  According to them, they were not notified of the sale, but learned about it only when they received the summons for the partition case.  They claim their right to redeem the property under the following provisions of the Civil Code:

“Article 1620.  A co-owner of a thing may exercise the right of redemption in case the shares of all the other co-owners or of any of them, are sold to a third person.  If the price of the alienation is grossly excessive, the redemptioner shall pay only a reasonable one.

In this case, it is quite clear that respondents are petitioners’ co-owners.  The sale of the contested property to Spouses Tarun had long been consummated before petitioners succeeded their predecessor, Angel Fernandez.  By the time petitioners entered into the co-ownership, respondents were no longer “third persons,” but had already become co-owners of the whole property.  A third person, within the meaning of Article 1620, is anyone who is not a co-owner.



G.R. No. 2426

January 24, 1906

FACTS: father Francisco and son Pedro Martinez were the owners as tenants in common of 2 separate parcels of land, each being the owner of an undivided ½ of said lands. Later, Francisco converyed to Lopez his undivided half interest in both lands, containing a clause that Francisco has the right to repurchase within 1 year. He did not repurchase it, then Lopez caused the proper marginal entry to be made upon the books in the Registry of Property where the conveyance has been recorded. Afterwards, he brought this action asking for a partition of the 2 lots, between him and Pedro.

It appeared that Francisco and Pedro were the owners as tenants in common of 26 other parcels of land, and that before the expiration of the 1 year for repurchase, the 2 of them made a voluntary partition of the 28 lots, which partition was approved by the CFI. In this partition, the 2 parcels of land in question fell to Pedro, and he claims that Lopez lost all his interest in the property because of this partition.

Trial court ruled in favor of Lopez

HELD: judgement affirmed

Article 399 of the Civil Code is as follows:

Every coowner shall have full ownership of his part and in the fruits and benefits derived therefrom, and he therefore may alienate, assign, or mortgage it, and even substitute another person in its enjoyment, unless personal rights are in question. But the effect of the alienation or mortgage, with regard to the coowners, shall be limited to the share which may be awarded him in the division on the dissolution of the community.

This article gives the owner of an undivided interest in the property the right to freely sell and dispose of it that is, of his undivided interest. he has no right to sell a divided part of the real estate. If he is the owner of an undivided half of a tract of land, he has a right to sell and convey an undivided half, but he has no right to divide the lot into two parts, and convey the whole of one part by metes and bounds. All that Francisco Martinez undertook to do in this case was to convey his undivided interest in these two properties. This he had a perfect right to do, in accordance with the terms of said article. There is nothing in the last clause of the article inconsistent with this position. That declares simply that when the property is divided the purchaser gets an interest only in that part which may be assigned to him. For the purposes of this case we see no difference between it and a case in which the tenant in common makes an absolute conveyance of his undivided interest in the property, without reserving the right to repurchase. In the case of an absolute conveyance of that character, the relation between the grantor in the deed and his cotenant is terminated. They are no longer cotenants. The grantee in the deed takes the place of the grantor, and he and the other owner of the property become cotenants. In such a case the grantor loses all interest in the property, and of course has no right to take any part in the partition of it. It would be absurd to say that after such conveyance the grantor, who had lost all his interest in the property, could by agreement with the other owner make a partition of property in which he had no interest that would be binding upon his grantee.



G.R. No. 75884

September 24, 1987

FACTS: 2 parcels of land under 1 TCT are owned by alfredo and when he died, his wife julita go ong was appointed administratrix of his estate. Julita thereafter mortgaged 1 lot to Allied Banking Corp. to secure a loan obtained by JK Exports, annotated as a lien on the original TCT, with the following notation: “mortgagee’s consent necessary in case of subsequent alienation or encumbrance of the property…”

On the loan there was due a sum and Allied tried to collect it from Julita.  Hence, the complaint alleging nullity of the contract for lack of judicial approval which the bank had allegedly promised to secure from the court. In response thereto, the bank averred that it was Julita who promised to secure the court’s approval.

Trial court ruled  for Julita, stating that the contract is valid. CA affirmed with modification the lower court’s decision


HELD: contract is valid

Petitioner, asserting that the mortgage is void for want of judicial approval, quoted Section 7 of Rule 89 of the Rules of Court . The CA aptly ruled that Section 7 of Rule 89 of the Rules of Court is not applicable, since the mortgage was constituted in her personal capacity and not in her capacity as administratrix of the estate of her husband. Sec. 7, Art. 89 of the Civil Code applies in a case where judicial approval has to be sought in connection with, for instance, the sale or mortgage of property under administration for the payment, say of a conjugal debt, and even here, the conjugal and hereditary shares of the wife are excluded from the requisite judicial approval for the reason already adverted to hereinabove, provided of course no prejudice is caused others, including the government.

Consequently, in the case at bar, the trial court and the CA cannot be faulted in ruling that the questioned mortgage constituted on the property under administration, by authority of the petitioner, is valid, notwithstanding the lack of judicial approval, with respect to her conjugal share and to her hereditary rights.

Petitioner cited cases arguing that in the settlement proceedings of the estate of the deceased spouse, the entire conjugal partnership property of the marriage is under administration. While such may be in a sense true, that fact alone is not sufficient to invalidate the whole mortgage, willingly and voluntarily entered into by the petitioner.. Under similar circumstances, this Court applied the provisions of Article 493 of the Civil Code, where the heirs as co-owners shall each have the full ownership of his part and the fruits and benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and even effect of the alienation or mortgage, with respect to the co-owners, shall be limited to the portion which may be allotted to him in the division upon the termination of the co-ownership

The reference to judicial approval in Sec. 7, Rule 89 of the Rules of Court cannot adversely affect the substantive rights of private respondent to dispose of her Ideal [not inchoate, for the conjugal partnership ended with her husband’s death, and her hereditary rights accrued from the moment of the death of the decedent (Art. 777, Civil Code) share in the co-heirship and/or co-ownership formed between her and the other heirs/co-owners (See Art. 493, Civil Code, supra.).



G.R. No. 110644

October 30, 1998

FACTS: Agustin Dizon dies, leaving behind properties to be divided among his 5 children. Eduardo, in a private document and  Gaudencio in a notarized document sold their hereditary rights therein to their sister Salud.

Petitioners instituted action for COMPULSARY JUDICIAL PARTITION of real properties registered in the name of Agustin because of respondent Natividad  (1 of the 5 heirs) to agree to the formal distribution of the properties of Agustin among his heirs. Her refusal stemmed from her desire to keep for herself a parcel of land claiming that her father ORALLY donated it to her, supported  by  a private document signed and executed by Eduardo. The authenticity of such document is questioned by respondents.

Trial court granted the partition and gave the land to Natividad, as claimed. CA affirmed the trial court’s decision

HELD: the CA decision is reversed

Art 749 of the Civil Code reads:

In order that the donation of an immovable may be valid, it must be made in a public document, specifying therein the property donated and the value of the charges which the donee must satisfy.

In any case, assuming that Agustin really made the donation to respondent, albeit orally, respondent cannot still claim ownership over the property.  While it is true that a void donation may be the basis of ownership which may ripen into title by prescription, it is well settled that possession, to constitute the foundation of a prescriptive right, must be adverse and under a claim of title.

Respondent was never in adverse and continous possession of the property. It is undeniable that petitioners and respondent, being heirs of the deceased, are co-owners of the properties left by the latter.  A co-ownership is a form of a trust, with each owner being a trustee for each other and possession of a co-owner shall not be regarded as adverse to other co-owners but in fact is beneficial to them.

The elements in order that a co-owner’s possession may be deemed adverse to the cestui que trust or the co-owner are:

(1) that he has performed unequivocal acts of repudiation amounting to ouster cestui que trust or other co-owners

(2) that such positive acts or repudiation have been made known to the cestui que trust or other co-owners and

(3) that the evidence thereon must be clear and convincing. Nothing is present in the case.

**It is well settled that tax declarations or realty tax payments are not conclusive evidence of ownership

OBRA vs SPS. BADUA et al

OBRA vs SPS. BADUA et al

G.R. No. 149125

August 9, 2007

FACTS: Respondents alleged that their residential houses, erected on a lot commonly owned by them situated in La Union, were located west of the properties of the Obras, Bucasases, and Baduas. Their only access to the national highway was a pathway traversing the northern portion of petitioners property and the southern portion of the properties of the Bucasases and Baduas. The pathway was more than one meter wide and sixteen meters long. They claimed that this pathway had been established as early as 1955.In 1995, however, petitioner Obra constructed a fence on the northern boundary of their property; thus, blocking respondents access to the national highway. Respondents demanded the demolition of the fence, but petitioner refused. (The spouses Badua and Bucasas failed to file an answer; consequently, they were declared in default.)

On July 7, 2000, after trial, the RTC rendered a Decision dismissing the complaint. It held that respondents were not able to satisfy all the requisites needed for their claim of an easement of right of way. It observed that when petitioner fenced the northern portion of her property, respondents were able to use another pathway as ingress and egress to the highway. It stated further that the new pathway is more than adequate for respondents use .Thus, the applied easement of right-of-way on the northern portion of petitioners property was not allowed. The said Decision became final and executory.

It must be noted that the new pathway used by respondents, however, traversed the southern portion of petitioners property. Sometime in 2001, petitioner constructed a fence on this portion of her lot, which again restricted the use of respondents new pathway. Aggrieved and prejudiced by petitioners action, respondents filed a Motion to Enforce the July 7, 2000 Decision of the RTC. They alleged that the Decision of the RTC dismissing the case was based on the existence of a new pathway which they had been using since 1995. Thus, they asserted that petitioner was prohibited from closing said passage.

On March 20, 2001, the RTC granted the said motion. Petitioner filed a Motion for Reconsideration, but it was rejected by the trial courts.

Clarifying its July 7, 2000 Decision, the trial court, in its March 20, 2001 Order, held that the dismissal of the complaint depended on petitioners representation that she was allowing respondents to use the southern portion of her property as an alternative pathway. Since the southern portion was an agreed pathway, petitioner could not reduce its width; thus, the trial court ordered petitioner to remove the fence blocking the passage.

Hence, we have this present Petition for Review on Certiorari under Rule 45


1.  WON the Court can motu proprio declare a compulsory right of way on a property not the subject of a pending case.

2.  WON there was a voluntary easement over the southern portion of Obra’s property

HELD: the petition is GRANTED.The June 20, 2001 and March 20, 2001 Orders of the RTC are hereby ANNULLED AND SET ASIDE.

1.  NO; Essentially, petitioner questions the propriety of the trial courts issuance of an order clarifying its final and executory decision and effectively establishing an easement on petitioners property without proper adjudication.

An order of execution must conform to the terms of the dispositive portion of the decision.

[A court that issues an order of execution in contravention of its final judgment exceeds its jurisdiction and renders its order invalid.

The resolution of the court in a given issue embodied in the fallo or dispositive part of a decision or order is the controlling factor as to settlement of rights of the parties. Thus, where there is a conflict between the fallo and the ratio decidendi or body of the decision, the fallo controls. This rule rests on the theory that the fallo is the final order while the opinion in the body is merely a statement ordering nothing. The rule applies when the dispositive part of a final decision or order is definite, clear, and unequivocal, and can wholly be given effect without need of interpretation or construction.

The amended complaint filed by respondents revealed that their cause of action was the recognition of their easement of right-of-way of more than one (1) meter wide and more than sixteen (16) meters in length [which] traversed the northern portion of the property of defendants spouses Obra. As prayer, respondents asked for the demolition of the concrete fence constructed by petitioner and her spouse, that closed the pathway on the northern portion of Obras lot; the declaration of right-of-way over said area in favor of respondents; and the payment of damages and attorneys fees. When the RTC dismissed the case in its July 7, 2000 Decision, it ruled that respondents had no cause of action against petitioner and her husband because they failed to satisfy one of the four requisites for the entitlement of a right-of-way, namely that the dominant estate is surrounded by other immovables and is without adequate outlet to a public highway. The trial court took note of the fact that the new pathway which incidentally traversed the southern portion of petitioners lot is an adequate outlet to a public highway. While its body mentioned the existence of an alternative pathway located south of petitioners lot, such was made only to emphasize that respondents failed to satisfy the requirements for an easement of right-of-way. As held by the trial court:

The insistence of the plaintiffs to open up the old pathway is therefore without basis considering that there is another outlet adequate enough as an access route for them in their passage to the public highway and the alleged inconvenience cannot be a ground for the opening of said old pathway.

x x x x


Apparently, no pronouncement was ever made regarding the nature and legality of this new pathway; therefore, no easement was established by the Court on petitioners’ property. Thus, their claim for a right-of-way on the southern portion had no basis.

The parties and even the trial court were confined to the averments of the complaint, and the answer and the issues joined by the major pleadings .It could not be disputed by respondents that there was no mention at all of any right-of-way on the southern portion of petitioners lot in the complaint nor any claim or prayer for the declaration of respondents entitlement to a right-of-way over the said area. Thus, there was no joinder of issue on this matter and, therefore, the dismissal of the case cannot, by any stretch of imagination, be construed to encompass any grant of right-of-way to respondents relating to the southern portion owned by petitioner.

Moreover, the construction of the fence on the southern portion was done by petitioner after the rendition and finality of the July 7, 2000 Decision dismissing the case. It is plain to see that such act of constructing the fence was subsequent to the Decision and could not have been covered by said judgment. The dispute that arose from the blockade of the pathway on the southern portion could be the subject matter of another complaint but definitely was not an issue in the case. In the new case, respondents are obliged to prove all the essential elements of the easement of right-of-way a requirement which they failed to satisfy in the prior civil case.

2. NO; The trial court, seemingly aware that it did not determine the legality of an easement of right-of-way over the pathway located south of petitioners property, nevertheless, concluded that the said passage was an agreed or voluntary easement of right-of-way which petitioner should respect.

The trial court was in error.

It is a settled doctrine that a decision, after it becomes final, becomes immutable and unalterable. Thus, the court loses jurisdiction to amend, modify, or alter a final judgment and is left only with the jurisdiction to execute and enforce it. Any amendment or alteration which substantially affects a final and executory judgment is null and void for lack of jurisdiction, including the entire proceedings held for that purpose.

To recapitulate, the dismissal of the Civil Case meant that no easement was ever established on petitioner’s property. However, the trial court, by issuing its March 20, 2001 Order directing petitioner to remove the fence that limited respondents passage, effectively created a right-of-way on petitioners property in favor of respondents allegedly on the basis of a voluntary agreement between the parties. This directive was in contravention of its July 7, 2000 Decision; thus, it was null and void for having been issued outside of the courts jurisdiction.

Granting for the sake of argument that the issue of voluntary easement of right-of-way, subject of the assailed March 20, 2001 Order, was proper, relevant, and material to the issue of right-of-way as averred in the complaint in the Civil Case, still, the conclusion that there was an agreed or voluntary easement of right-of-way had no basis. The records of the Civil case do not reveal any agreement executed by the parties on the claimed right-of-way. Glaring is the fact that the terms of the arrangement were not agreed upon by the parties, more particularly, the payment of the proper indemnity. The evidence is not ample enough to support the conclusion that there was a verbal agreement on the right-of-way over the southern portion.

More so, since a right-of-way is an interest in the land, any agreement creating it should be drawn and executed with the same formalities as a deed to a real estate, and ordinarily must be in writing. No written instrument on this agreement was adduced by respondents.



G.R. No. L-48384

October 11, 1943

FACTS: Maria Florentino owned a house and a camarin or warehouse in Vigan, Ilocos Sur. The house had and still has, on the north side, three windows on the upper story, and a fourth one on the ground floor. Through these windows the house receives light and air from the lot where the camarin stands. Maria Florentino made a will, devising the house and the land on which it is situated to Gabriel,one of the respondents herein, and to Jose, father of the other respondents. In said will, the testatrix also devised the warehouse and the lot where it is situated to Maria Encarnancion. Upon the death of the testatrix in 1882, nothing was said or done by the devisees in regard to the windows in question.

Maria Encarnacion sold her lot and the warehouse thereon to the petitioner Amor, the deed of sale stating that the vendor had inherited the property from her aunt, Maria Florentino. Later, petitioner destroyed the old warehouse and started to build instead a two-story house.

Respondents filed an action to prohibit petitioner herein from building higher than the original structure and from executing any work which would shut off the light and air that had for many years been received through the four windows referred to.

The trial court declared that an easement of light and view had been established in favor of the property of the plaintiffs (respondents herein) and ordered Amor to remove within 30 days all obstruction to the windows of respondents’ house, to abstain from constructing within three meters from the boundary line, and to pay for damages.

The CA affirmed the judgment of the CFI, hence this petition asking for the setting aside of said decision.


1. WON the easement of light and view under review has been established in favor of the property of respondents through prescription

2. WON Art 541 of the civil code is applicable in this case, especially regarding the correct time of death of Maria Florentino

3. WON the Yu-tibo case applies in the case at bar

4. WON Amor is an innocent purchaser for value

HELD: the judgment appealed from should be and is hereby affirmed

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

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

It is well known that easements are established, among other cases, by the will of the owners. (Article 536 of the Code.) It was an act which was, in fact, respected and acquiesced in by the new owner of the servient estate, since he purchased it without making any stipulation against the easement existing thereon, but, on the contrary, acquiesced in the continuance of the apparent sign thereof. As is stated in the decision itself, “It is a principle of law that upon a division of a tenement among various persons — in the absence of any mention in the contract of a mode of enjoyment different from that to which the former owner was accustomed — such easements as may be necessary for the continuation of such enjoyment are understood to subsist.” It will be seen, then, that the phrase “active enjoyment” involves an idea directly opposed to the enjoyment which is the result of a mere tolerance on the part of the adjacent owner, and which, as it is not based upon an absolute, enforceable right, may be considered as of a merely passive character

2. YES; Art. 541 provides:

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

Petitioner assigns as an error of the CA the supposed failure of that tribunal to pass upon his motion to consider certain allegedly new evidence to prove that Maria Florentino, the original owner of the properties, died in 1885. Petitioner alleges that Maria Florentino died in 1885 and, therefore, the Law of the Partidas should be followed in this case and not the Civil Code.

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

3.  NO; petitioner contends that the doctrine in that case is controlling in the present one, but the facts and theories of both cases are fundamentally dissimilar. In that case, Cortes sought an injunction to restrain Yu-Tibo from continuing the construction of certain buildings. Cortes’ wife owned a house in Manila which had windows that had been in existence since 1843. The defendant, who occupied a house on the adjoining lot, commenced to raise the roof of the house in such a manner that one-half of the windows in the house owned by plaintiff’s wife had been covered. This Court, in affirming the judgment of the lower court which dissolved the preliminary injunction, held that the opening of windows through one’s own wall does not in itself create an easement, because it is merely tolerated by the owner of the adjoining lot, who may freely build upon his land to the extent of covering the windows, under article 581, and that his kind of easement is negative which can be acquired through prescription by counting the time from the date when the owner of the dominant estate in a formal manner forbids the owner of the servient estate from obstructing the light, which had not been done by the plaintiff in this case.

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

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

Finally, the Yu-Tibo case was decided upon the theory if the negative easement of altius non tollendi, while the instant case is predicated on the idea of the positive easement of light and view under article 541.

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

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


1. According to Article 536, easements are established by law or by will of the owners. Acquisition of easements is first by title or its equivalent and secondly by prescription. What acts take the place of title? They are mentioned in Articles 540 and 541, namely,

(1) a deed of recognition by the owner of the servient estate;

(2) a final judgment; and

(3) an apparent sign between two estates, established by the owner of both, which is the case of article 541.

 2.  under article 541 of the Civil Code, the visible and permanent sign of an easement “is the title that characterizes its existence .

3. As to the implied contract. Law 14, Title 31, Partida 3 provided that easements were acquired by contract, by will and by prescription. There was consequently an implied agreement between Maria Florentina and the devisees of the house with the four windows to the effect that the service of these windows would continue, thus creating the easement of light and view and the concomitant easement of altius non tollendi. Hence, the easement in question was acquired by Gabriel and Jose through contract under Law 14, Title 31, Partida 3

LA VISTA vs. CA et al

LA VISTA vs. CA et al

G.R. No. 95252

September 5, 1997

FACTS: MANGYAN ROAD is a 15-meter wide thoroughfare in QC abutting Katipunan Ave. on the west, traversing the edges of La Vista Subdivision on the north and of the Ateneo de Manila University and Maryknoll (now Miriam) College on the south; Mangyan Road serves as the boundary between LA VISTA on one side and ATENEO and MARYKNOLL on the other. It bends towards the east and ends at the gate of Loyola Grand Villas Subdivision. The area comprising the 15-meter wide roadway was originally part of a vast tract of land owned by the Tuasons.

The Tuasons sold to Philippine Building Corporation (PBC) a portion of their landholdings by virtue of a Deed of Sale with Mortgage. Paragraph three (3) of the deed provides that:

“. . . the boundary line between the property herein sold and the adjoining property of the VENDORS shall be a road fifteen (15) meters wide, one-half of which shall be taken from the property herein sold to the VENDEE and the other half from the portion adjoining belonging to the VENDORS.”

In 1951 PBC, which was then acting for and in behalf of Ateneo de Manila University (ATENEO) in buying the properties from the Tuasons, sold, assigned and formally transferred in a Deed of Assignment with Assumption of Mortgage, with the consent of the Tuasons, the subject parcel of land to ATENEO which assumed the mortgage. The deed of assignment states —

The ASSIGNEE hereby agrees and assumes to pay the mortgage obligation on the above-described land in favor of the MORTGAGOR and to perform any and all terms and conditions as set forth in the Deed of Sale … which said document is incorporated herein and made an integral part of this contract by reference . . . .

On their part, the Tuasons developed a part of the estate adjoining the portion sold to PBC into a residential village known as La Vista Subdivision. Thus the boundary between LA VISTA and the portion sold to PBC  was the 15-meter wide roadway known as the Mangyan Road.

Later, the Tuasons developed its 7.5-meter share of the 15-meter wide boundary. ATENEO deferred improvement on its share and erected instead an adobe wall on the entire length of the boundary of its property parallel to the 15-meter wide roadway.

ATENEO informed LA VISTA of the former’s intention to develop some 16 hectares of its property along Mangyan Road into a subdivision. In response, the LA VISTA President clarified certain aspects with regard to the use of Mangyan Road. Thus —

. . . The Mangyan Road is a road 15 meters wide, one-half of which is taken from your property and the other half from the La Vista Subdivision. So that the easement of a right-of-way on your 71/2 m. portion was created in our favor and likewise an easement of right-of-way was created on our 7 1/2 portion of the road in your favor (paragraph 3 of the Deed of Sale between the Tuasons and the PBC and Ateneo de Manila dated 1 July 1949 . . . .

LA VISTA President then, in a letter to the ATENEO President offered to buy under specified conditions the property ATENEO was intending to develop. The offer of LA VISTA to buy was not accepted by ATENEO. Instead, ATENEO offered to sell the property to the public subject to the condition that the right to use the 15-meter roadway will be transferred to the vendee who will negotiate with the legally involved parties regarding the use of such right as well as the development costs for improving the access road.

LA VISTA became one of the bidders. However it lost to Solid Homes, Inc., in the bidding. Thus ATENEO executed a Deed of Sale in favor of Solid Homes, Inc., over parcels of land subject, among others, to the condition that —

7. The VENDOR hereby passes unto the VENDEE, its assigns and successors-in-interest the privileges of such right of way which the VENDOR acquired, and still has, by virtue of the Deeds mentioned in the immediately preceeding paragraph hereof; provided, that the VENDOR shall nonetheless continue to enjoy said right of way privileges with the VENDEE, which right of way in favor of the VENDOR shall be annotated on the pertinent road lot titles…

Subsequently, Solid Homes, Inc., developed a subdivision now known as Loyola Grand Villas and together they now claim to have an easement of right-of-way along Mangyan Road through which they could have access to Katipunan Avenue.

The LA VISTA President however informed Solid Homes, Inc., that LA VISTA could not recognize the right-of-way over Mangyan Road because, first, PBC and its assignee ATENEO never complied with their obligation of providing the Tuasons with a right-of-way on their 7.5-meter portion of the road and, second, since the property was purchased for commercial purposes, Solid Homes, Inc., was no longer entitled to the right-of-way as Mangyan Road was established exclusively for ATENEO in whose favor the right-of-way was originally constituted. LA VISTA, after instructing its security guards to prohibit agents and assignees of Solid Homes, Inc., from traversing Mangyan Road, then constructed one-meter high cylindrical concrete posts chained together at the middle of and along the entire length of Mangyan Road thus preventing the residents of LOYOLA from passing through.

Solid Homes, Inc., complained to LA VISTA but the concrete posts were not removed.. LA VISTA then stationed security guards in the area to prevent entry to LOYOLA through Mangyan Road. To avert violence, Solid Homes, Inc., instituted the instituted the instant case, Civil Case No. Q-22450 before the then CFI of Rizal and prayed that LA VISTA been joined from preventing and obstructing the use and passage of LOYOLA residents through Mangyan Road.

LA VISTA in turn filed a third-party complaint against ATENEO. The trial court issued a preliminary injunction in favor of Solid Homes, Inc. (affirming an earlier order), directing LA VISTA to desist from blocking and preventing the use of Mangyan Road.

The injunction order was however nullified and set aside by the then IAC. Thus in a petition for review on certiorari, Solid Homes, Inc., assailed the nullification and setting aside of the preliminary injunction issued by the trial court.

Meanwhile, on 20 November 1987 the RTC of QC rendered a decision on the merits in affirming and recognizing the easement of right-of-way along Mangyan Road in favor of Solid Homes, Inc., and ordering LA VISTA to pay damages. LA VISTA appealed to the CA.

On 22 May 1990  the Second Division of the CA affirmed in toto the Decision of the trial court in Civil Case No. Q-22450.

On 6 September 1990 the MRs and/or re-raffle and to set the case for oral argument were denied.

Consequently we are left with the instant case where petitioner LA VISTA assails the Decision of respondent CA affirming in toto the Decision of the trial court which rendered a judgment on the merits and recognized an easement of right-of-way along Mangyan Road, permanently enjoining LA VISTA from closing to Solid Homes, Inc., and its successors-in-interest the ingress and egress on Mangyan Road.

ISSUE: Is there an easement of right-of-way over Mangyan Road?

HELD: WHEREFORE, the Decision of respondent CA dated 22 May 1990 and its Resolution dated 6 September 1990, which affirmed the Decision of the RTC, dated 20 November 1987, are AFFIRMED.


Petitioner LA VISTA in its lengthy Memorandum also quotes our ruling in Ramos, Sr., v. Gatchalian Realty, Inc.:

To allow the petitioner access to Sucat Road through Gatchalian Avenue inspite of a road right-of-way provided by the petitioner’s subdivision for its buyers simply because Gatchalian Avenue allows petitioner 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.’

This is misplaced. Ramos, Sr., v. Gatchalian Realty, Inc.,  concerns a legal or compulsory easement of right-of-way —

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 petitioner and the respondent company and/or the other private respondents is ruled out. What is left to examine is whether or not petitioner is entitled to a legal or compulsory easement of a right-of-way —

which should be distinguished from a voluntary easement. A legal or compulsory easement is that which is constituted by law for public use or for private interest. By express provisions of Arts. 649 and 650 of the New Civil Code, the owner of an estate may claim a legal or compulsory right-of-way only after he has established the existence of four (4) requisites, namely:

(a) the estate is surrounded by other immovables and is without adequate outlet to a public highway;

(b) after payment of the proper indemnity;

(c) the isolation was not due to the proprietor’s own acts; and,

(d) the right-of-way claimed is at a 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.

A voluntary easement on the other hand is constituted simply by will or agreement of the parties.

From the facts of the instant case it is very apparent that the parties and their respective predecessors-in-interest intended to establish an easement of right-of-way over Mangyan Road for their mutual benefit, both as dominant and servient estates. One’s attention should rather be focused on the contractual stipulations in the deed of sale between the Tuason Family and the PBC (paragraph 3, thereof) which were incorporated in the deed of assignment with assumption of mortgage by the PBC in favor of Ateneo (first paragraph, page 4 of the deed) as well as in the deed of sale dated October 24, 1976 when the property was ultimately transferred by Ateneo to plaintiff-appellee. Like any other contractual stipulation, the same cannot be extinguished except by voluntary rescission of the contract establishing the servitude or renunciation by the owner of the dominant lots.

The free ingress and egress along Mangyan Road created by the voluntary agreement between Ateneo and Solid Homes, Inc., is thus legally demandable (Articles 619 and 625, New Civil Code) with the corresponding duty on the servient estate not to obstruct the same so much so that —

When the owner of the servient tenement performs acts or constructs works impairing the use of the servitude, the owner of the dominant tenement may ask for the destruction of such works and the restoration of the things to their condition before the impairment was committed, with indemnity for damages suffered. An injunction may also be obtained in order to restrain the owner of the servient tenement from obstructing or impairing in any manner the lawful use of the servitude.

The argument of petitioner LA VISTA that there are other routes to LOYOLA from Mangyan Road is likewise meritless, to say the least. The opening of an adequate outlet to a highway can extinguish only legal or compulsory easements, not voluntary easements like in the case at bar. The fact that an easement by grant may have also qualified as an easement of necessity does not detract from its permanency as a property right, which survives the termination of the necessity

That there is no contract between LA VISTA and Solid Homes, Inc., and thus the court could not have declared the existence of an easement created by the manifest will of the parties, is devoid of merit. The predecessors-in-interest of both LA VISTA and Solid Homes, Inc., i.e., the Tuasons and the PBC spectively, clearly established a contractual easement of right-of-way over Mangyan Road. When the PBC transferred its rights and obligations to ATENEO the Tuasons expressly consented and agreed thereto. Meanwhile, the Tuasons themselves developed their property into what is now known as LA VISTA. On the other hand, ATENEO sold the hillside portions of its property to Solid Homes, Inc., including the right over the easement of right-of-way. In sum, when the easement in this case was established by contract, the parties unequivocally made provisions for its observance by all who in the future might succeed them in dominion.


1. Resultantly, when the court says that an easement exists, it is not creating one. For, even an injunction cannot be used to create one as there is no such thing as a judicial easement. As in the instant case, the court merely declares the existence of an easement created by the parties.

2. The contractual easement of right-of-way having been confirmed, we find no reason to delve on the issue concerning P.D. No. 957 which supposedly grants free access to any subdivision street to government or public offices within the subdivision. In the instant case, the rights under the law have already been superseded by the voluntary easement of right-of-way.

3. in their first assigned error, petitioner LA VISTA argues that respondent appellate court erred in disregarding the decisions in (a) La Vista Association, Inc., v. Hon. Ortizand other cases, and in holding that an easement of right-of-way over Mangyan Road exists.

We do not agree with petitioner. The reliance of petitioner on the cited cases is out of place as they involve the issuance of a preliminary injunction pending resolution of a case on the merits. In the instant case, however, the subject of inquiry is not merely the issuance of a preliminary injunction but the final injunctive writ which was issued after trial on the merits. A writ of preliminary injunction is generally based solely on initial and incomplete evidence. The opinion and findings of fact of a court when issuing a writ of preliminary injunction are interlocutory in nature and made even before the trial on the merits is terminated. Consequently there may be vital facts subsequently presented during the trial which were not obtaining when the writ of preliminary injunction was issued. Hence, to equate the basis for the issuance of a preliminary injunction with that for the issuance of a final injunctive writ is erroneous. And it does not necessarily mean that when a writ of preliminary injunction issues a final injunction follows.

We are unswayed by appellant’s theory that the cases cited by them in their Brief  and in their motion for early resolution to buttress the first assigned error, are final judgments on the merits of, and therefore res judicata to the instant query.. Generally, it is axiomatic that res judicata will attach in favor of La Vista if and when the case under review was disposed of on the merits and with Finality. Appellants suffer from the mistaken notion that the “merits” of the certiorari petitions impugning the preliminary injunction in the cases cited by it are tantamount to the merits of the main case, subject of the instant appeal. Quite the contrary, the so-called “final judgments” adverted to dealt only with the propriety of the issuance or non-issuance of the writ of preliminary injunction, unlike the present recourse which is directed against a final injunctive writ under Section 10, Rule 58. Thus the invocation of the disputed matter herein is misplaced.

We thus repeat what we said in Solid Homes, Inc., v. La Vista 15 which respondent Court of Appeals quoted in its assailed Decision 16

Being an ancillary remedy, the proceedings for preliminary injunction cannot stand separately or proceed independently of the decision rendered on the merits of the main case for injunction. The merits of the main case having been already determined in favor of the applicant, the preliminary determination of its non-existence ceases to have any force and effect.

4. Finally, petitioner questions the intervention of some LOYOLA residents at a time when the case was already on appeal, and submits that intervention is no longer permissible after trial has been concluded. But Rule 12 of the Rules of Court, like all other Rules therein promulgated, is simply a rule of procedure, the whole purpose and object of which is to make the powers of the Court fully and completely available for justice. The purpose of procedure is not to thwart justice. Its proper aim is to facilitate the application of justice to the rival claims of contending parties. It was created not to hinder and delay but to facilitate and promote the administration of justice. It does not constitute the thing itself which courts are always striving to secure to litigants. It is designed as the means best adopted to obtain that thing. In other words, it is a means to an end.

After all, the intervention does not appear to have been filed to delay the proceedings. On the contrary, it seems to have expedited the resolution of the case as the incidents brought forth by the intervention, which could have been raised in another case, were resolved together with the issues herein resulting in a more thorough disposal of this case.



G.R. No. L-37409

May 23, 1988

FACTS: Valisno bought the land from the defendant-appellees sister, Honorata The land adjoins that of the appellee Felipe on the bank of the Pampanga River. Both parcels of land had been inherited by Honorata and Felipe, from their father, Eladio Adriano. At the time of the sale of the land to Valisno, the land was irrigated by water from the Pampanga River through a canal traversing the Felipe’s land.

Later on, Felipe levelled a portion of the irrigation canal so that the Valisno was deprived of the irrigation water and prevented from cultivating his land.

The Valisno filed in the Bureau of Public Works and Communications a complaint for deprivation of water rights. A decision was rendered Felipe to reconstruct the irrigation canal, Instead of restoring the irrigation canal, the Felipe asked for a reinvestigation of the case by the same Bureau. A reinvestigation was granted.

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

He later filed a complaint for damages in the CFI of Nueva Ecija claiming that he suffered damages when he failed to plant his fields that year (1960) for lack of irrigation water.

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

In his answer to the damage suit, Felipe admitted that he levelled the irrigation canal on his land, but he averred: that neither his late father nor his sister Honorata possessed water rights for the land which she sold to the appellant. He set up a counterclaim for damages.

The trial court held that the plaintiff had no right to pass through the defendant’s land to draw water from the Pampanga River. It pointed out that under Section 4 of the Irrigation Law, controversies between persons claiming a right to water from a stream are within the jurisdiction of the Secretary of Public Works and his decision on the matter is final, unless an appeal is taken to the proper court within thirty days. The court may not pass upon the validity of the decision of the Public Works Secretary collaterally.. It dismissed the complaint and counterclaim.

The Valisno’s MR of the decision was denied by the trial court. The plaintiff appealed to the CA which certified the case to Us upon the legal question of whether the provisions of the Irrigation Act (Act No. 2152) or those of the Civil Code should apply to this case.

ISSUE: WON Valiano has water rights over the irrigation canal

HELD: The appealed decision is SET ASIDE.


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

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

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

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

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

The deed of sale in favor of Valisno included the “conveyance and transfer of the water rights and improvements” appurtenant to Honorata’s property. By the terms of the Deed of Absolute Sale, the vendor Honorata Adriano Francisco sold, ceded, conveyed and transferred to Dr. Nicolas Valisno all “rights, title, interest and participations over the parcel of land above- described, together with [irrigation equipment]” and the water rights and such other improvements appertaining to the property subject of this sale. According to the Valisno, the water right was the primary consideration for his purchase of Honorata’s property, for without it the property would be unproductive.

Water rights, such as the right to use a drainage ditch for irrigation purposes, which are appurtenant to a parcel of land, pass with the conveyance of the land, although not specifically mentioned in the conveyance. The purchaser’s easement of necessity in a water ditch running across the grantor’s land cannot be defeated even if the water is supplied by a third person

As an easement of waters in favor of Valisno has been established, he is entitled to enjoy it free from obstruction, disturbance or wrongful interference, such as the Felipe’s act of levelling the irrigation canal to deprive him of the use of water from the Pampanga River.



G.R. No. L-33507

July 20, 1981

FACTS: Petitioner filed in the CFI of Davao an action against Davao City to quiet title to her Lot 77-B-2, a portion of which she claims to having been occupied illegally as part of Bolton Street, Davao City.

On a motion to dismiss filed by the defendant, on the ground that the complaint states no cause of action, the Court, presided over by respondent Judge Cusi Jr., dismissed the case. The allegations in the complaint that the Bolton Street encroached on the lot of the plaintiff and that the defendant had continuously occupied the portion so encroached upon do not, contrary to the conclusion of the plaintiff found in the complaint, cast ‘ . . a cloud of doubt on the title of the plaintiff over said portion which would justify this action.

Hence, this petition for certiorari seeking a review of the Order of dismissal

ISSUE: WON Boston st. is an easement and a legal encumbrance on petitioner’s lot.

HELD: WHEREFORE, no reversible error having been found in the Order complained of, the same is hereby AFFIRMED, and the instant petition, dismissed


Section 39 of Act 496:

Every person receiving a certificate of title in pursuance of a decree or registration, and every subsequent purchasers of registered land who takes a certificate of title for value in good faith shall hold the same free of all encumbrances, except those noted on said certificate, and any of the following encumbrances which may be subsisting namely:

xxx xxx xxx

Third. Any public highway, way, private way, … or any government irrigation


It appears on the face of the complaint that Bolton Street has been where it is from time immemorial. Bolton Street constituted an easement of public highway on subject Lot No. 77, from which petitioner’s lot was taken, when the said bigger lot was original registered. It remained as such legal encumbrance, as effectively as if it had been duly noted , or notwithstanding the lack of an annotation, on the certificate of title, by virtue of the clear and express provision of Section 39 of Act 496, it being admitted that at the time of the registration of Lot 77, the public highway was already in existence or subsisting


Bolton Street cannot be a discontinuous easement as she claims it to be, which may not be acquired by prescription. Nonetheless, whether the mode of acquisition of the easement that Bolton Street is, would be only by virtue of title, as petitioner contends, this is not material or of any consequence. The action is to quiet title and damages; but the complaint does not allege any cloud or doubt on the title