Tickler:

Illustrative Cases:

1. What is easement? Distinguish easement from usufruct.

ANSWER:
Easement is an encumbrance imposed upon an immovable for the benefit of a
community or one or more persons or for the benefit of another immovable belonging
to a different owner.

In EASEMENT, it is imposed only on real property. On the other hand, in USUFRUCT, it

may involve either real or personal property. The former is limited o particular or
specific use of the servient estate. The latter includes all the uses and the fruits of the
property. Easement is a non-possessory right over an immovable and not extinguished
by the death of the dominant owner. Usufruct involves a right of possession in an
immovable or movable and it is extinguished by the death of the usufructuary.

Can there be
(a) an easement over a usufruct?
Answer:
There can be no easement over a usufruct since an easement may be constituted only
on a corporeal immovable property. A usufruct is not a corporeal right.

(b) usufruct over an easement?

Answer:
Likewise, there can be no usufruct over an easement because the latter has no
existence independent of the property to which it attaches.

(c) an easement over another easement?

2. Don was the owner of an agricultural land with no access to a public road. He had been passing through the land
of Ernie with the latter's acquiescence for over 20 years. Subsequently, Don subdivided his property into 20
residential lots and sold them to different persons. Ernie blocked the pathway and refused to let the buyers pass
through his land.

a) Did Don acquire an easement of right of way? No, An easement of right of way though it may be apparent is,
nevertheless, discontinuous or intermittent and, therefore, cannot be acquired through prescription, but only by
virtue of a title. Under the New Civil Code, easements may be continuous discontinuous (intermittent), apparent or
non-apparent, discontinuous being those used at more or less long intervals and which depend upon acts of man
(Articles 615). Continuous and apparent easements are acquired either, by title or prescription, continuous non-
apparent easements and discontinuous ones whether apparent or not, may be acquired only by virtue of a title
(Articles 620 and 622) Under the provisions of the Civil Code, particularly the articles thereof aforecited, it would
therefore appear that the easement of right of way may not be acquired through prescription. Even Article 1959 of
the Old Civil Code providing for prescription of ownership and other real rights in real property, excludes therefrom
the exception established by Article 539, referring to discontinuous easements, such as, easement of right of way.
(Bargayo vs. Camumot, 40 Phil., 857, 867). Further, in the case of Cuayong vs. Benedicto, (37 Phil., 781) where the
point in issue was whether or not vested rights in a right of way can be acquired through user from time
immemorial, the Court held that no discontinuous easement could be acquired by prescription in any event.
b) What are the rights of the lot buyers, if any? Explain.

2. You bought a real property which is enclosed and bounded by several property owners A, B & C. There is a right
of way in the servient property of B. However that right of way is longer than if you can pass thru the property of A.
A does not want to give right of way, can you compel A to provide for right of way easement to you?

No, mere convenience for the dominant estate is not what is required by law as the basis of setting up a
compulsory easement. The convenience of the dominant estate has never been the gauge for the grant of
compulsory right of way. The true standard for the grant of the legal right is "adequacy." In order to justify the
imposition of an easement of right of way, there must be real, not fictitious or artificial, necessity for it. As such,
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. Petitioners had already been granted a right of way through the other adjacent lot. There is an
existing outlet to and from the public road. Other lot owners use the said outlet in going to and coming from the
public highway.

1. X, Y & Z alleged that they have been in the continuous and uninterrupted use of a road or passage way which traversed the land of
A and their predecessors in interest, in going to the highway from their residential land and back, for more than 20 years without
any objections or issue. On the 21st year, A constructed a 10 door apartment, which now blocks plaintiffs’ right of way. Plaintiffs
now contend that they have acquired the easement of right of way by prescription and demanded the demotion of one of the
apartments which directly obstructs their passage. Was an easement of a right of way acquired?
Answer:
No. It cannot be acquired by prescription because it is discontinuous or intermittent

It must also be noted in the case at hand that the requisites for easement on right of way are not present because there is no
showing that there must be no adequate outlet to a public highway and it must be absolutely necessary and not mere
convenience. Hence, easement of a right of way was not acquired.

2. Jeffrey owns a big track of land in Tagaytay City. He then converted his property into a subdivision, without
an access to the highway. When he applied for a license before the HLURB, he represented that he will
purchase a rice field located between his land and the highway, and will develop the same into an access
road leading to the highway. In the meantime, he negotiated with Tomas, an owner of an adjacent land
500 square meter, abutting the highway to grant him temporary right of way. Tomas agreed pending his
commitment with the HLURB. When the license was already granted, Jeffrey did not buy the ricefield. He
continued to pass thru Tomas’s land instead. As time went by, Tomas realized that he was taken for a ride
and so he then decided to fence his property isolating the subdivision of Jeffrey. He then filed a complaint
in court, for the establishment of an easement of right of way through the subdivision of Tomas which he
claims to be the most adequate and practical outlet to the highway. Tomas refused contending Jeffrey
commitment to buy and construct a highway through the ricefield and stating that his property is already
too small and would further suffer damage if allowed to be used as a right of way.

a) If you were the judge, how will you decide?

Answer:
If I were the judge, I will decide in favor of Tomas considering that the property is already too small and
he would further suffer damage if he would allow Jeffrey to use his property as a right of way. And the
fact that Jeffrey committed to buy the ricefield with HLURB for him to use the said ricefield as road
leading to the highway, he has still adequate outlet to a public highway.
 b) What are the requisites for the establishment of a compulsory easement of a right of way?
Requisites for the establishment of a compulsory easement of a right of way are as follows:

1. The estate is surrounded by other immovables and is without adequate outlet to a public
highway;
2. Proper indemnity is paid;
3. The isolation is not due to the proprietor’s own acts; and,
4. The right of way claimed is at a point least prejudicial to the servient estate and, insofar as
consistent with this rule, where the distance from the dominant estate to a public highway may be
the shortest.

3. Distinguish between Easement Against Nuisance & Nuisance under title VIII.

Answer:
Easement against nuisance under Article 682 pertains to prohibition against the proprietor or possessor
from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and
other causes. On the other hand, NUISANCE under 694 of the Civil Coder pertains to acts, omission,
establishment, condition of property or anything else which injures or endangers the health or safety of
others; annoys or offends the senses; shocks, defies or disregards decency or morality; obstructs or
interferes with the free passage of any public highway or street, or any body of waters; or hinders or
impairs the use of property.

4. On Easement: Mrs. Fernandez purchased a farmlot from on public auction. The farmlot was previously
owned by Mr. Perez who was not able to pay on his loan. When Mrs. Fernandez took possession of the
farmlot, she discovered that the farmlot had granted a right of way to another lot owned by Mr. Santos.
Contending that the easement was not annotated in the title of the farmlot, Mrs. Fernandez filed an
action for cancellation of the right of way on the ground that the easement was extinguished due to
failure to annotate in the title. Was the easement extinguished? Decide the controversy.

ANSWER:

NO. According to Article 617 of the New Civil Code, the easement is inseparable from the estate to
which it actively or passively belongs. It cannot, therefore, be alienated or mortgaged separately from
the estate to which it forms part. In addition, the servitude can be availed of against every person who
may subsequently acquire ownership of the estate to such encumbrance. The law also provides only
two causes of cancellation of the Easement of Right of Way which are as follows: (a) opening of a new
road; and, (b) joining the dominant estate to another (that is the latter becomes also the property of the
dominant owner) which abuts, and therefore has access to the public highway. But the new access must
be adequate and convenient.

5. On Usufruct: the consequence of good faith and bad faith in the loss or deterioration of the
thing in usufruct in cases of fortuitous event and/or act of God. I will give 2 problems on
Usufruct on rights and obligations of the Usufructuary with emphasis on damages;

RIGHTS OF THE USUFRUCTUARY

1. To receive and benefit from the fruits
 2. To enjoy any increase through accessions and servitudes
3. To the half of the hidden treasure he accidentally finds
4. To lease the thing, generally, for the same or shorter period as the usufruct
5. Tod improve the thing without altering its form and substance
6. Right to set-off the improvements he may have made on the property against any
damage to the same
7. To retain the thing until he is reimbursed for advances for extraordinary expenses and
taxes on the capital
8. To collect reimbursements from the owner for indispensable extraordinary repairs, taxes
on the capital he advanced, and damages caused to him
9. To remove improvements made by him if the same will not injure the property
OBLIGATIONS OF THE USUFRUCTUARY
Before exercising the usufruct:
A. To make an inventory of the property
B. To give a bond, EXCEPT
i. When no prejudice would result
ii. When the usufruct is reserved by the donor or parents
iii. In cases or causion juratoria where the usufructuary, being unable to file the
required bond or security, files a verified petition in the proper court asking for
the delivery of the house and furniture necessary for himself and his family
without any bond or security.
iv. Takes an oath to take care of the things and restore them
v. Property cannot be alienated or encumbered or leased because this would mean
that the usufructuary does not need it.

NOTE:
Effects of failure to post bond:
A. Owner shall have the following OPTIONS:
i. Receivership of realty, sale of movables, deposit of securities, or investment of
money; OR
ii. Retention of the property as administrator

B. The net product shall be delivered to the usufructuary

C. Usufructuary cannot collect credits due or make investments of the capital without the
consent of the owner or of the court until the bond is given

During the usufruct:

A. To take care of the property

B. To replace with the young thereof animals that die or are lost in certain cases when the
usufruct is constituted on flock or herd of livestock
C. To make ordinary repairs
D. To notify the owner of urgent extraordinary repairs
E. To permit works and improvements by the naked owner not prejudicial to the usufruct
 F. To pay annual taxes and charges on the fruits
G. To pay interest on taxes on capital paid by the naked owner
H. To pay debts when the usufruct is constituted on the whole patrimony
I. To secure the naked owner’s or court’s approval to collect credits in certain cases
J. To notify the owner of any prejudicial act committed by third persons
K. To pay for court expenses and costs regarding usufruct

At the termination of the usufruct

A. To return the thing in usufruct to the owner unless there is a right of retention
B. To pay legal interest on the amount spent by the owner for extraordinary repairs or taxes
on the capital
C. To indemnify the owner for any losses due to his negligence or of his transferees

6. On Easement: Illustrative problems on Right of Way;

Easement of Right of Way is the right granted to the owner of an estate which is surrounded by
other estates belonging to other persons and without an adequate outlet to a public highway to
demand that he be allowed a passageway throughout such neighboring estates after payment
of proper indemnity.

Requisites:
1. Claimant must be an owner of enclosed immovable or one with real right;
2. There must be no adequate outlet to a public highway;
3. Right of way must be absolutely necessary;
4. Isolation must not be due to the claimant’s own act;
5. Easement must be established at the point least prejudicial to the servient estate;
6. Payment of proper indemnity.
Easement of right of way cannot be acquired by prescription because it is discontinuous or
intermittent

Easement of Light & View

Easement of Light (jus luminum) is the right to admit light from the neighboring estate by virtue
of the opening of a window or the making of certain openings.

Requisites:
A. Opening must not be greater than 30 centimeters squared, made on the ceiling or on
the wall; and
B. There must be an iron grating

Easement of View (jus prospectus) is the right to make openings or windows, to enjoy the view
through the estate of another and the power to prevent all constructions or work which would
obstruct such view or make the same difficult. It necessarily includes easement of light.
RESTRICTIONS AS TO VIEWS:
1. Direct Views. The distance of 2 meters between the wall and the boundary must be
observed
2. Oblique Views. (Walls perpendicular or at an angle to the boundary line) must not be
less than 60cm from the boundary line to the nearest edge of the window

NOTE: Any stipulation permitting lesser distances is VOID. (Article 673)

MODES OF ACQUISITION
1. By title
2. By prescription
a. Positive. Counted from the time of the opening of the window, if it is through a party
wall
b. Negative. Counted from the formal prohibition on the servient owner

NOTE: Mere non-observance of distances prescribed by law without formal prohibition, does
not give rise to prescription.

There exists a doubt as to whether easements against nuisance and lateral and subjacent
support may be categorized as legal easements.

A. PACITA DAVID-CHAN V. CA, ET AL., G.R. NO. 105294, FEBRUARY 26, 1997

FACTS
Petitioner alleged that her property, consisting of around 635 square meters, situated in Del Pilar, San Fernando,
Pampanga and covered by TCT No. 57596-R, located around the property are the following:
1. Northern and western sides: various business establishments.
2. Southern boundary: land of the Pineda family
3. East-northeastern boundary: a lot with an area of approximately 161 square meters owned by private
Philippine Rabbit Lines, which lied between her property and the MacArthur Highway.

On September 29, 1987, petitioner filed with the trial court an amended petition with prayer for preliminary
prohibitory injunction, seeking to stop private respondent from fencing its property and depriving her of access to
the highway. In short, petitioner’s lot was almost completely surrounded by other immovables and cut off from the
highway. Her only access to the highway was a very small opening measuring two feet four inches wide through the
aforementioned property of private respondent, which was now being obstructed by the bus lines’ construction of
a concrete fence. Petitioner believed she was entitled to a wider compulsory easement of right of way through the
said property of private respondent.

ISSUE
WON petitioner is legally entitled to a right of way through private respondent’s property?

HELD
The Supreme Court upheld the decision of the CA.

Citing Articles 649 and 650 of the Civil Code, petitioner submits that “the owner of an estate may claim a
compulsory right of way only after he (or she) has established the existence of four requisites, namely:
(1) the estate is surrounded by other immovables and is without adequate outlet to a public highway;
(2) proper indemnity is paid;
(3) the isolation is not due to the proprietor’s own acts; and
(4) the right of way claimed is at a point least prejudicial to the servient estate and, insofar as consistent with this
rule, where the distance from the dominant estate to a public highway may be the shortest.”
While petitioner may be correct in her theoretical reading of Articles 649 and 650, she nevertheless failed to show
sufficient factual evidence to satisfy their requirements. Evaluating her evidence, respondent Court ruled that
petitioner is not “without adequate outlet to a public highway” since she built a concrete fence on the southern
boundary of her property to separate it from the property of the Pineda family. Worse, during the pendency of the
case, she closed the 28-inch clearance which she could use as a means to reach the National Highway without
passing through the property of defendant. If plaintiff wants a bigger opening, then she can always destroy a
portion of the concrete fence which she erected and pass through the property of the Pineda family which, as
shown on the attached sketch on the Commissioner’s Report, has an openspace on the southern boundary of
plaintiff’s land.

The appellate court likewise found that petitioner failed to satisfy the third requirement because she caused her
own isolation by closing her access through the Pineda property.

The Court of Appeals also ruled that petitioner failed to prove she made a valid tender of the proper indemnity,
since her complaint contained no averment that demand for the easement of right of way had been made after
payment of the proper indemnity.

B. STA. MARIA V. CA, ET. AL., GR. NO. 127549 JANUARY 28, 1998
FACTS:
Plaintiff spouses Arsenio and Roslynn Fajardo are the registered owners of a piece of land, Lot No. 124, in Bulacan.

Plaintiff's aforesaid Lot 124 is surrounded by Lot 1, a fishpond, on the northeast portion thereof; by Lot 126, owned
by Florentino Cruz, on the southeast portion; by Lot 6-a and a portion of Lot 6-b owned respectively by Spouses
Cesar and Raquel Sta. Maria and Florcerfida Sta. Maria, on the southwest; and by Lot 122, owned by the Jacinto
family, on the northwest.

On February 17, 1992, Fajardo filed a complaint against defendants Sta. Maria for the establishment of an
easement of right of way. Plaintiffs alleged that their lot, Lot 124, is surrounded by properties belonging to other
persons, including those of the defendants; that since plaintiffs have no adequate outlet to the provincial road, an
easement of a right of way passing through either of the alternative defendants' properties which are directly
abutting the provincial road would be plaintiffs' only convenient, direct and shortest access to and from the
provincial road; that plaintiffs' predecessors-in-interest have been passing through the properties of defendants in
going to and from their lot; that defendants' mother even promised plaintiffs' predecessors-in-interest to grant the
latter an easement of right of way as she acknowledged the absence of an access from their property to the road;
and that alternative defendants, despite plaintiffs' request for a right of way and referral of the dispute to the
barangay officials, refused to grant them an easement. Thus, plaintiffs prayed that an easement of right of way on
the lots of defendants be established in their favor. They also prayed for damages, attorney's fees and costs of suit.

RTC and CA both found for Fajardo and granted the easement of right of way. On appeal, the Sta. Maria's allege
that Fajardo failed to prove that it was not their own actions which caused their lot to be enclosed or cut-off from
the road.

ISSUE:
Whether or not the plaintiffs failed to prove the third requisite or that the isolation was not caused by the plaintiffs
themselves?
HELD:
The plaintiffs sufficiently proved that they did not by themselves cause the isolation.
As to the third requisite, we explicitly pointed out; thus: "Neither have the private respondents been able to show
that the isolation of their property was not due to their personal or their predecessors-in-interest's own acts." In
the instant case, the Court of Appeals have found the existence of the requisites. The petitioners, however, insist
that private respondents' predecessors-in-interest have, through their own acts of constructing concrete fences at
the back and on the right side of the property, isolated their property from the public highway. The contention does
not impress because even without the fences private respondents' property remains landlocked by neighboring
estates belonging to different owners.

Again, for an estate to be entitled to a compulsory servitude of right of way under the Civil Code, to wit:
1. the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art.
649, par. 1);
2. there is payment of proper indemnity (Art. 649, par. 1);
3. the isolation is not due to the acts of the proprietor of the dominant estate (Art. 649, last par.); and
4. the right of way claimed is at the point least prejudicial to the servient estate; and insofar as consistent with this
rule, where the distance from the dominant estate to a public highway may be the shortest (Art. 650).

C. RAMOS VS. GATCHALIAN REALTY G.R. NO. 75905 OCT. 12, 1987

Mere convenience for the dominant estate is not enough to justify a grant of right of way. Real necessity must be
shown.

FACTS:
Ramos is the owner of a house and lot in Parañaque. Respondents Asprec own Lot 4135. Gatchalian Avenue is
alongside Lot 4135. Respondent Gatchalian Realty was granted the road right of way and drainage along Lot 4135
to service the Gatchalian and Asprec subdivision, by the respondent Asprecs.

Ramos alleged that, Gatchalian Realty, Inc. built a 7-8, feet high concrete wall right infront of his premises, blocking
his entrance/exit to Gatchalian Road, the nearest, most convenient and adequate entrance/exit to the public road.
or highway, Sucat Road but now known as Dr. A. Santos Avenue, Parañaque; that this house and lot is only about
100 meters from Sucat, Road passing thru Gatchalian Avenue. Ramos also alleged that due to Gatchalian's
construction, he was constrained to use as his "temporary" way the adjoining lots belonging to different persons.
Said way is allegedly "bumpy and impassable especially during rainy seasons because of flood waters, mud and tall
'talahib' grasses thereon." Moreover, according to Ramos, the road right of way which the private respondents
referred to as the petitioner's alternative way to Sucat Road is not an existing road but has remained a proposed
road as indicated in the subdivision plan of the Sobrina Rodriguez Lombos Subdivision.

RTC and CA both denied Ramos' complaint.

ISSUE:
Whether or not a right of way must be granted based on allegation of inconvenience?

HELD:
NO. The petitioner's position is not impressed with merit. We find no reason to disturb the appellate court's finding
of fact that the petitioner failed to prove the non-existence of an adequate outlet to the Sucat Road except through
the Gatchalian Avenue. As borne out by the records of the case, there is a road right of way provided by the Sabrina
Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in its subdivision plan for the buyers of its lots. The fact
that said lot is still undeveloped and causes inconvenience to the petitioner when he uses it to reach the public
highway does not bring him within the ambit of the legal requisite. We agree with the appellate court's observation
that the petitioner should have, first and foremost, demanded from the Sabrina Rodriguez Lombos Subdivision the
improvement and maintenance of Lot 4133-G-12 as his road right of way because it was from said subdivision that
he acquired his lot and not either from the Gatchalian Realty or the respondents Asprec. To allow the 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."

D. RONQUILLO VS. ROCO, G.R. NO. L -10619 FEBRUARY 28, 1958

Easements of right of way may not be acquired by prescription because it is not a continuous easement.

FACTS:
Petitioners’ parcel of land was connected to the Naga Market Place and Igualdad St. by an easement of a right of
way through the land of the Respondents, which they have been using for more than 20 years. On May 1953,
however, respondents built a chapel right in the middle of the road, blocking their usual path to the marketplace.
One year after, by means of force, intimidation, and threats, the owners (respondents) of the land where the
easement was situated, planted wooden posts and fenced with barbed wires the road, closing their right of way
from their house to Igualdad St. and Naga public market.

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

HELD: NO.
Art. 620 of the CC 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.

Minority Opinion (including the ponente):

Easements of right of way may already be acquired by prescription, at least since the introduction into this
jurisdiction of the special law on prescription through the Old Code of Civil Procedure, Act No. 190. Said law,
particularly, Section 41 thereof, makes no distinction as to the real rights which are subject to prescription, and
there would appear to be no valid reason, at least to the writer of this opinion, why the continued use of a path or
a road or right of way by the party, specially by the public, for ten years or more, not by mere tolerance of the
owner of the land, but through adverse use of it, cannot give said party a vested right to such right of way through
prescription.

“The uninterrupted and continuous enjoyment of a right of way necessary to constitute adverse possession does
not require the use thereof every day for the statutory period, but simply the exercise of the right more or less
frequently according to the nature of the use.” (17 Am. Jur. 972)
"It is submitted that under Act No. 190, even discontinuous servitudes can be acquired by prescription, provided it
can be shown that the servitude was actual, open, public, continuous, under a claim of title exclusive of any other
right and adverse to all other claimants'."

E. QUIMEN VS. CA, GR NO. 112331 MAY 29, 1996

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 has 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.

F. ENCARCION VS. CA GR NO. 77228 MARCH 11, 1991

An easement of right of way exists as a matter of law when a private property has no access to a public road and
the needs of such property determines the width of the easement which requires payment of indemnity which
consists of the value of the land and the amount of the damages caused.

FACTS:
Tomas Encarnacion is the owner of the dominant estate which is bounded on the north by the servient estates of
Eusebio de Sagun and Mamerto Masigno, on the south by a dried river and the Taal Lake. The servient estate is
bounded on the north by the National Highway.
Prior to 1960, persons going to the national highway would just cross the servient estate at no particular point. In
1960, Sagun and Masigno enclosed their lands with a fence but provided a roadpath 25 meters long and about 1
meter in width. At this time, Encarnacion started his plant nursery business on his land. When his business
flourished, it became more difficult to transfer the plants and garden soil through the use of a pushcart so
Encarnacion bought an owner-type jeep for transporting the plants. However, the jeep could not pass through the
roadpath so he approached Sagun and Masigno asking them if they would sell to him 1 ½ meters of their property
to add to the existing roadpath but the 2 refused the offer.

Encarnacion then instituted an action before the RTC to seek the issuance of a writ of easement of a right of way
over an additional width of at least 2 meters. The RTC dismissed the complaint for there is another outlet, which is
through the dried river bed. This was affirmed by the CA thus the case at bar.

ISSUE:
Whether or not Encarnacion is entitled to an widening of an already existing easement of right-of-way

RULING: YES
Encarnacion has sufficiently established his claim. Generally, a right of way may be demanded: (1) when there is
absolutely no access to a public highway, and (2) when, even if there is one, it is difficult or dangerous to use or is
grossly insufficient. In the case at bar, although there is a dried river bed, t it traversed by a semi-concrete bridge
and there is no egress or ingress from the highway. For the jeep to reach the level of the highway, it must literally
jump 4-5 meters up. And during rainy season, it is impassable due to the floods. When a private property has no
access to a public road, it has the right of easement over adjacent servient estates as a matter of law. With the non-
availability of the dried river bed as an alternative route, the servient estates should accommodate the needs of
the dominant estate. Art. 651 provides that “the width of the easement of right of way shall be that which is
sufficient for the needs of the dominant estate …” To grant the additional easement of right of way of 1 ½ meters,
Encarnacion must indemnify Sagun and Masigno the value of the land occupied plus amount of the damages
caused until his offer to buy the land is considered.

G. DICHOSO, JR. VS. MARCOS GR NO. 180282 APRIL 11, 2011

FACTS: In 2002, petitioners filed a Complaint for Easement of Right of Way against Marcos and alleged that they
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 Spouses Arce, the owners of another adjacent lot.

Respondent denied that he allowed anybody to use Lot No. 1 as passageway and that petitioners’ claim of right of
way is only due to expediency and not necessity. He also maintained that there is an existing easement of right of
way available to petitioners granted by the Spouses Arce.

ISSUE: W/N petitioners are entitled to a legal easement?

Held: NO. The petition is without merit. Petitioners failed to show sufficient factual evidence to satisfy the
enumerated requirements under Art. 650 (NCC). By its very nature, 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.

Mere convenience for the dominant estate is not what is required by law as the basis of setting up a compulsory
easement. The convenience of the dominant estate has never been the gauge for the grant of compulsory right of
way. The true standard for the grant of the legal right is "adequacy." In order to justify the imposition of an
easement of right of way, there must be real, not fictitious or artificial, necessity for it. As such, 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. Petitioners had already been granted a right of way through the other adjacent lot. There is an existing
outlet to and from the public road. Other lot owners use the said outlet in going to and coming from the public
highway.

H. HIDALGO ENTERPRISES V. BALANDAN G.R. NO. L-3422 JUNE 13, 1952

Attractive nuisance doctrine generally is not applicable to bodies of water, artificial (e.g. water tanks) as well as
natural, in the absence of some unusual condition or artificial feature other than the mere water and its
location.

FACTS:
Guillermo Balandan and his wife is claiming damages in the sum of P2,000 for the death of their son, Mario.
Petitioner was the owner of an Ice plant, who had in their premises 2 tanks filled of water, 9 feet deep. The factory
was fenced but Ingress and egress was easily made because the gates were always open and there was no guard
assigned in the said gate. Also the tanks didn’t have any barricade or fence. One day when Mario was playing with
his friend, they saw the tank inside the factory and began playing and swimming inside it. While bathing, Mario
sank to the bottom of the tank, only to be fished out later, already as a cadaver, having died of ‘asphyxia secondary
to drowning.’ The lower decided in the favor of the parents saying that the petitioner is liable for damages due to
the doctrine of attractive nuisance.

ISSUE: Whether or not the doctrine of attractive nuisance is applicable in this case?

RULING: NO.
The doctrine of attractive nuisance states that “One who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children
from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the
child is technically a trespasser in the premises. American Jurisprudence shows us that the attractive nuisance
doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual
condition or artificial feature other than the mere water and its location. In the case bar, the tanks themselves
cannot fall under such doctrine thus the petitioners cannot be held liable for Mario’s death.

I. SORIANO VS. STERNBERG G.R. NO. L-15628

FACTS:
Oscar Sternberg owns a parcel of land with a two storey-house which was built in 1905. The said house has
windows overlooking the adjacent lot belonging to Soriano. The windows were built on the wall of the house which
has a 1.36 m. distance from the dividing line between the two lots. Thereafter, Soriano filed an action to compel
Sternberg to close the windows because it is less than 2 meters from the division line between the two lots and
hence, a violation of Article 582 (now Article 670) of the Civil Code. The law provides that "No windows or
balconies or other similar projections which directly overlook the adjoining property may be opened or built
without leaving a distance of not less than 2 meters between the wall in which they are built and such adjoining
property. Sternberg argues that the action of Soriano has already prescribed. It must be noted that there is no
annotation in the Torrens title of the parties involved. (No easement of view in the title of Soriano and no right to
easement on the title of Sternberg.) Here, there is no question of easement.

ISSUE: WON a right of action to enforce Article 582 of the Civil code may be lost by failure to prosecute within the
prescriptive period fixed by the Code of Civil Procedure. YES

HELD: YES.
In this case, Sternberg has never prohibited Soriano from building any wall on his own land. Soriano’s cause of
action only arose in 1905 when Sternberg built the offending edifice (building).

Nevertheless, the windows complained of were permitted to be open for thirteen years (1918) without protest
from Soriano. Soriano must, consequently, by reason of his own laches, be considered to have waived any right
which he may have had to compel the windows to be closed.

It is our holding that plaintiff right of action under article 582 of the Civil Code accrued in 1905 when the windows
in defendant's house were opened, and that, in accordance with Chapter III of the Code of Civil Procedure, his
action has prescribed.

The argument of Soriano that it was only in 1917, when he bought the land in question, that the statute of
limitations began to run, is not convincing, for the general rule is, that once the statute begins to run, it never
stops, and the transfer of the cause of action does not have the effect of suspending its operation.

Art. 670. No windows, apertures, balconies, or other similar projections which afford a direct view upon or towards
an adjoining land or tenement can be made, without leaving a distance of two meters between the wall in which
they are made and such contiguous property. Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance of sixty centimeters. The nonobservance of these
distances does not give rise to prescription.

j. BOGO-MEDELLLIN MILLING CO., INC. V CA, GR NO. 124699 JULY 31, 2003

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to annul and set
aside the decision[1] dated November 17, 1995 of the Court of Appeals, Tenth Division,
which reversed the decision[2] dated November 27, 1991 of the Regional Trial Court of Cebu
City, Branch IX, which ruled in favor of herein petitioner, Bogo-Medellin Milling Company, Inc.
and dismissed herein private respondents' complaint for payment of compensation and/or
recovery of possession of real property and damages with application for restraining order or
preliminary injunction; and its resolution dated March 2, 1996 denying petitioner's motion for
reconsideration.
The antecedent facts follow.
Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez, Angelina Valdez-
Novabos, Teresita Argawanon-Mangubat and Daylinda Argawanon-Melendres (hereafter the
heirs), purchased from Feliciana Santillan, on December 9, 1935, a parcel of unregistered
land covered by Tax Declaration No. 3935 with an area of one hectare, 34 ares and 16
centares, located in Barrio Dayhagon, Medellin, Cebu.[3] He took possession of the property
and declared it for tax purposes in his name.[4]
Prior to the sale, however, the entire length of the land from north to south was already
traversed in the middle by railroad tracks owned by petitioner Bogo-Medellin Milling Co., Inc.
(hereafter Bomedco). The tracks were used for hauling sugar cane from the fields to
petitioners sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents inherited the
land. However, unknown to them, Bomedco was able to have the disputed middle lot which
was occupied by the railroad tracks placed in its name in the Cadastral Survey of Medellin,
Cebu in 1965. The entire subject land was divided into three, namely, Cadastral Lot Nos.
953, 954 and 955. Lot Nos. 953 and 955 remained in the name of private respondents.
However, Lot No. 954, the narrow lot where the railroad tracks lay, was claimed by Bomedco
as its own and was declared for tax purposes in its name. [5]
It was not until 1989 when private respondents discovered the aforementioned claim of
Bomedco on inquiry with the Bureau of Lands. Through their lawyer, they immediately
demanded the legal basis for Bomedco's claim over Cadastral Lot No. 954 but their letter of
inquiry addressed to petitioner went unheeded, as was their subsequent demand for
payment of compensation for the use of the land.[6]
On June 8, 1989, respondent heirs filed a Complaint for Payment of Compensation and/or
Recovery of Possession of Real Property and Damages with Application for Restraining
Order/Preliminary Injunction against Bomedco before the Regional Trial Court of Cebu.[7]
Respondent heirs alleged that, before she sold the land to Valdez, Sr. in 1935, Santillan
granted Bomedco, in 1929, a railroad right of way for a period of 30 years. When Valdez, Sr.
acquired the land, he respected the grant. The right of way expired sometime in 1959 but
respondent heirs allowed Bomedco to continue using the land because one of them was
then an employee of the company.[8]
In support of the complaint, they presented an ancient document ― an original copy of the
deed of sale written in Spanish and dated December 9, 1935[9] ― to evidence the sale of
the land to Magdaleno Valdez, Sr.; several original real estate tax receipts[10] including Real
Property Tax Receipt No. 3935[11] dated 1922 in the name of Graciano de los Reyes,
husband of Feliciana Santillan, and Real Property Tax Receipt No. 09491[12] dated 1963 in
the name of Magdaleno Valdez, Sr. Magdaleno Valdez, Jr. also testified for the plaintiffs
during the trial.
On the other hand, Bomedcos principal defense was that it was the owner and possessor of
Cadastral Lot No. 954, having allegedly bought the same from Feliciana Santillan in 1929,
prior to the sale of the property by the latter to Magdaleno Valdez, Sr. in 1935. It also
contended that plaintiffs claim was already barred by prescription and laches because of
Bomedcos open and continuous possession of the property for more than 50 years.
Bomedco submitted in evidence a Deed of Sale[13] dated March 18, 1929; seven real estate
tax receipts[14] for the property covering the period from 1930 to 1985; a 1929 Survey Plan
of private land for Bogo-Medellin Milling Company;[15] a Survey Notification Card;[16] Lot
Data Computation for Lot No. 954;[17] a Cadastral Map for Medellin Cadastre[18] as well as
the testimonies of Vicente Basmayor, Geodetic Engineer and property custodian for
Bomedco, and Rafaela A. Belleza, Geodetic Engineer and Chief of the Land Management
Services of the DENR, Region VIII.
In its decision dated November 27, 1991, the trial court[19] rejected Bomedco's defense of
ownership on the basis of a prior sale, citing that its evidence a xerox copy of the Deed of
Sale dated March 18, 1929 was inadmissible and had no probative value. Not only was it not
signed by the parties but defendant Bomedco also failed to present the original copy without
valid reason pursuant to Section 4, Rule 130 of the Rules of Court.[20]
Nonetheless, the trial court held that Bomedco had been in possession of Cadastral Lot No.
954 in good faith for more than 10 years, thus, it had already acquired ownership of the
property through acquisitive prescription under Article 620 of the Civil Code. It explained:
Under Article 620 of the Civil Code, CONTINUOUS and APPARENT easements can be acquired
by prescription after ten (10) years. The apparent characteristic of the questioned property
being used by defendant as an easement is no longer at issue, because plaintiffs themselves
had acknowledged that the existence of the railway tracks of defendant Bomedco was
already known by the late Magdaleno Valdez, herein plaintiffs predecessor-in-interest, before
the late Magdaleno Valdez purchased in 1935 from the late Feliciana Santillan the land
described in the Complaint where defendants railway tracks is traversing [sic] (TSN of
February 5, 1991, pp. 7-8). As to the continuity of defendants use of the strip of land as
easement is [sic] also manifest from the continuous and uninterrupted occupation of the
questioned property from 1929 up to the date of the filing of the instant Complaint. In view
of the defendants UNINTERRUPTED possession of the strip of land for more than fifity (50)
years, the Supreme Courts ruling in the case of Ronquillo, et al. v. Roco, et al. (103 Phil 84) is
not applicable. This is because in said case the easement in question was a strip of dirt road
whose possession by the dominant estate occurs only everytime said dirt road was being
used by the dominant estate. Such fact would necessarily show that the easements
possession by the dominant estate was never continuous. In the instant case however, there
is clear continuity of defendants possession of the strip of land it had been using as railway
tracks. Because the railway tracks which defendant had constructed on the questioned strip
of land had been CONTINUOUSLY occupying said easement. Thus, defendant Bomedcos
apparent and continuous possession of said strip of land in good faith for more than ten (10)
years had made defendant owner of said strip of land traversed by its railway tracks.
Because the railway tracks which defendant had constructed on the questioned strip of land
had been continuously occupying said easement [sic]. Thus, defendant Bomedcos apparent
and continuous possession of said strip of land in good faith for more than ten (10) years
had made defendant owner of said strip of land traversed by its railway tracks.
Respondent heirs elevated the case to the Court of Appeals which found that Bomedco did
not acquire ownership over the lot. It consequently reversed the trial court. In its decision
dated November 17, 1995, the appellate court held that Bomedco only acquired an
easement of right of way by unopposed and continuous use of the land, but not ownership,
under Article 620 of the Civil Code.
The appellate court further ruled that Bomedcos claim of a prior sale to it by Feliciana
Santillan was untrue. Its possession being in bad faith, the applicable prescriptive period in
order to acquire ownership over the land was 30 years under Article 1137 of the Civil Code.
Adverse possession of the property started only in 1965 when Bomedco registered its claim
in the cadastral survey of Medellin. Since only 24 years from 1965 had elapsed when the
heirs filed a complaint against Bomedco in 1989, Bomedcos possession of the land had not
yet ripened into ownership.
And since there was no showing that respondent heirs or their predecessor-in-interest was
ever paid compensation for the use of the land, the appellate court awarded compensation
to them, to be computed from the time of discovery of the adverse acts of Bomedco.
Its motion for reconsideration having been denied by the appellate court in its resolution
dated March 22, 1996, Bomedco now interposes before us this present appeal by certiorari
under Rule 45, assigning the following errors:
I
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REVERSED AND SET
ASIDE THE TRIAL COURTS DECISION DISMISSING PRIVATE RESPONDENTS COMPLAINT.
II
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT ORDERED THE
PETITIONER TO PAY THE PRIVATE RESPONDENT THE REASONABLE VALUE OF LOT 954 AND
THE AMOUNT OF TEN THOUSAND (P10,000.00) PESOS AS REASONABLE ATTORNEYS FEES.
Petitioner Bomedco reiterates its claim of ownership of the land through extraordinary
acquisitive prescription under Article 1137 of the Civil Code and laches to defeat the claim
for compensation or recovery of possession by respondent heirs. It also submits a third
ground originally tendered by the trial court ― acquisition of the easement of right of way by
prescription under Article 620 of the Civil Code.
Extraordinary Acquisitive Prescription
Under Art. 1137 of the Civil Code
Petitioners claim of ownership through extraordinary acquisitive prescription under Article
1137 of the Civil Code cannot be sustained.
There is no dispute that the controversial strip of land has been in the continuous possession
of petitioner since 1929. But possession, to constitute the foundation of a prescriptive right,
must be possession under a claim of title, that is, it must be adverse.[21] Unless coupled
with the element of hostility towards the true owner, possession, however long, will not
confer title by prescription.[22]
After a careful review of the records, we are inclined to believe the version of respondent
heirs that an easement of right of way was actually granted to petitioner for which reason
the latter was able to occupy Cadastral Lot No. 954. We cannot disregard the fact that, for
the years 1930, 1937, 1949, 1962 and 1963, petitioner unequivocally declared the property
to be a central railroad right of way or sugar central railroad right of way in its real estate tax
receipts when it could have declared it to be industrial land as it did for the years 1975 and
1985.[23] Instead of indicating ownership of the lot, these receipts showed that all petitioner
had was possession by virtue of the right of way granted to it. Were it not so and petitioner
really owned the land, petitioner would not have consistently used the phrases central
railroad right of way and sugar central railroad right of way in its tax declarations until 1963.
Certainly an owner would have found no need for these phrases. A person cannot have an
easement on his own land, since all the uses of an easement are fully comprehended in his
general right of ownership.[24]
While it is true that, together with a persons actual and adverse possession of the land, tax
declarations constitute strong evidence of ownership of the land occupied by him,[25] this
legal precept does not apply in cases where the property is declared to be a mere easement
of right of way.
An easement or servitude is a real right, constituted on the corporeal immovable property of
another, by virtue of which the owner has to refrain from doing, or must allow someone to
do, something on his property, for the benefit of another thing or person. It exists only when
the servient and dominant estates belong to two different owners. It gives the holder of the
easement an incorporeal interest on the land but grants no title thereto. Therefore, an
acknowledgment of the easement is an admission that the property belongs to another.[26]
Having held the property by virtue of an easement, petitioner cannot now assert that its
occupancy since 1929 was in the concept of an owner. Neither can it declare that the 30-
year period of extraordinary acquisitive prescription started from that year.
Petitioner, however, maintains that even if a servitude was merely imposed on the property
in its favor, its possession immediately became adverse to the owner in the late 1950s when
the grant was alleged by respondent heirs to have expired. It stresses that, counting from
the late 1950s (1959 as found by the trial court), the 30-year extraordinary acquisitive
prescription had already set in by the time respondent heirs made a claim against it in their
letters dated March 1 and April 6, 1989.
We do not think so. The mere expiration of the period of easement in 1959 did not convert
petitioners possession into an adverse one. Mere material possession of land is not adverse
possession as against the owner and is insufficient to vest title, unless such possession is
accompanied by the intent to possess as an owner.[27] There should be a hostile use of such
a nature and exercised under such circumstances as to manifest and give notice that the
possession is under a claim of right.
In the absence of an express grant by the owner, or conduct by petitioner sugar mill from
which an adverse claim can be implied, its possession of the lot can only be presumed to
have continued in the same character as when it was acquired (that is, it possessed the land
only by virtue of the original grant of the easement of right of way),[28] or was by mere
license or tolerance of the owners (respondent heirs).[29] It is a fundamental principle of law
in this jurisdiction that acts of possessory character executed by virtue of license or
tolerance of the owner, no matter how long, do not start the running of the period of
prescription.[30]
After the grant of easement expired in 1959, petitioner never performed any act
incompatible with the ownership of respondent heirs over Cadastral Lot No. 954. On the
contrary, until 1963, petitioner continued to declare the sugar central railroad right of way in
its realty tax receipts, thereby doubtlessly conceding the ownership of respondent heirs.
Respondents themselves were emphatic that they simply tolerated petitioners continued use
of Cadastral Lot No. 954 so as not to jeopardize the employment of one of their co-heirs in
the sugar mill of petitioner.[31]
The only time petitioner assumed a legal position adverse to respondents was when it filed a
claim over the property in 1965 during the cadastral survey of Medellin. Since then (1965)
and until the filing of the complaint for the recovery of the subject land before the RTC of
Cebu in 1989, only 24 years had lapsed. Since the required 30-year extraordinary
prescriptive period had not yet been complied with in 1989, petitioner never acquired
ownership of the subject land.

Laches
Neither can petitioner find refuge in the principle of laches. It is not just the lapse of time or
delay that constitutes laches. The essence of laches is the failure or neglect, for an
unreasonable and unexplained length of time, to do that which, through due diligence, could
or should have been done earlier, thus giving rise to a presumption that the party entitled to
assert it had either abandoned or declined to assert it.[32]
Its essential elements are: (a) conduct on the part of the defendant, or of one under whom
he claims, giving rise to the situation complained of; (b) delay in asserting complainants
rights after he had knowledge of defendants acts and after he has had the opportunity to
sue; (c) lack of knowledge or notice by defendant that the complainant will assert the right
on which he bases his suit; and (d) injury or prejudice to the defendant in the event the relief
is accorded to the complainant.[33]
The second element (which in turn has three aspects) is lacking in the case at bar. These
aspects are: (a) knowledge of defendant's action, (b) opportunity to sue defendant after
obtaining such knowledge and (c) delay in the filing of such suit.[34]
Records show that respondent heirs only learned about petitioners claim on their property
when they discovered the inscription for the cadastral survey in the records of the Bureau of
Lands in 1989. Respondents lost no time in demanding an explanation for said claim in their
letters to the petitioner dated March 1, 1989 and April 6, 1989. When petitioner ignored
them, they instituted their complaint before the Regional Trial Court of Cebu City on June 8,
1989.
Petitioners reliance on Caro vs. Court of Appeals [35] and Vda. de Alberto vs. Court of
Appeals [36] is misplaced. There, laches was applied to bar petitioners from questioning the
ownership of the disputed properties precisely because they had knowledge of the adverse
claims on their properties yet tarried for an extraordinary period of time before taking steps
to protect their rights.
Further, there is no absolute rule on what constitutes laches. It is a rule of equity and applied
not to penalize neglect or sleeping on ones rights but rather to avoid recognizing a right
when to do so would result in a clearly unfair situation. The question of laches is addressed
to the sound discretion of the court and each case must be decided according to its
particular circumstances.[37] It is the better rule that courts, under the principle of equity,
should not be guided or bound strictly by the statute of limitations or the doctrine of laches
if wrong or injustice will result.
It is clear that petitioner never acquired ownership over Cadastral Lot No. 954 whether by
extraordinary acquisitive prescription or by laches.
Acquisition of Easement of Right of Way By
Prescription Under Art. 620 of the Civil Code
Petitioner contends that, even if it failed to acquire ownership of the subject land, it
nevertheless became legally entitled to the easement of right of way over said land by
virtue of prescription under Article 620 of the Civil Code:
Continuous and apparent easements are acquired either by virtue of a title or by prescription
of ten years.
The trial court and the Court of Appeals both upheld this view for the reason that the railroad
right of way was, according to them, continuous and apparent in nature. The more or less
permanent railroad tracks were visually apparent and they continuously occupied the
subject strip of land from 1959 (the year the easement granted by Feliciana Santillan to
petitioner expired). Thus, with the lapse of the 10-year prescriptive period in 1969, petitioner
supposedly acquired the easement of right of way over the subject land.
Following the logic of the courts a quo, if a road for the use of vehicles or the passage of
persons is permanently cemented or asphalted, then the right of way over it becomes
continuous in nature. The reasoning is erroneous.
Under civil law and its jurisprudence, easements are either continuous or discontinuous
according to the manner they are exercised, not according to the presence of apparent signs
or physical indications of the existence of such easements. Thus, an easement is continuous
if its use is, or may be, incessant without the intervention of any act of man, like the
easement of drainage;[38] and it is discontinuous if it is used at intervals and depends on
the act of man, like the easement of right of way.[39]
The easement of right of way is considered discontinuous because it is exercised only if a
person passes or sets foot on somebody elses land. Like a road for the passage of vehicles
or persons, an easement of right of way of railroad tracks is discontinuous because the right
is exercised only if and when a train operated by a person passes over another's property. In
other words, the very exercise of the servitude depends upon the act or intervention of man
which is the very essence of discontinuous easements.
The presence of more or less permanent railroad tracks does not in any way convert the
nature of an easement of right of way to one that is continuous. It is not the presence of
apparent signs or physical indications showing the existence of an easement, but rather the
manner of exercise thereof, that categorizes such easement into continuous or
discontinuous. The presence of physical or visual signs only classifies an easement into
apparent or non-apparent. Thus, a road (which reveals a right of way) and a window (which
evidences a right to light and view) are apparent easements, while an easement of not
building beyond a certain height is non-apparent.[40]
In Cuba, it has been held that the existence of a permanent railway does not make the right
of way a continuous one; it is only apparent. Therefore, it cannot be acquired by
prescription.[41] In Louisiana, it has also been held that a right of passage over another's
land cannot be claimed by prescription because this easement is discontinuous and can be
established only by title.[42]
In this case, the presence of railroad tracks for the passage of petitioners trains denotes the
existence of an apparent but discontinuous easement of right of way. And under Article 622
of the Civil Code, discontinuous easements, whether apparent or not, may be acquired only
by title. Unfortunately, petitioner Bomedco never acquired any title over the use of the
railroad right of way whether by law, donation, testamentary succession or contract. Its use
of the right of way, however long, never resulted in its acquisition of the easement because,
under Article 622, the discontinuous easement of a railroad right of way can only be
acquired by title and not by prescription.
To be sure, beginning 1959 when the original 30-year grant of right of way given to
petitioner Bomedco expired, its occupation and use of Cadastral Lot No. 954 came to be by
mere tolerance of the respondent heirs. Thus, upon demand by said heirs in 1989 for the
return of the subject land and the removal of the railroad tracks, or, in the alternative,
payment of compensation for the use thereof, petitioner Bomedco which had no title to the
land should have returned the possession thereof or should have begun paying
compensation for its use.

But when is a party deemed to acquire title over the use of such land (that is, title over the
easement of right of way)? In at least two cases, we held that if: (a) it had subsequently
entered into a contractual right of way with the heirs for the continued use of the land under
the principles of voluntary easements or (b) it had filed a case against the heirs for
conferment on it of a legal easement of right of way under Article 629 of the Civil Code, then
title over the use of the land is deemed to exist. The conferment of a legal easement of right
of way under Article 629 is subject to proof of the following:
(1) it is surrounded by other immovables and has no adequate outlet to a public highway;
(2) payment of proper indemnity;
(3) the isolation is not the result of its own acts; and
(4) the right of way claimed is at the point least prejudicial to the servient estate, and,
insofar as consistent with this rule, the distance from the dominant estate to the highway is
the shortest.[43]
None of the above options to acquire title over the railroad right of way was ever pursued by
petitioner despite the fact that simple resourcefulness demanded such initiative, considering
the importance of the railway tracks to its business. No doubt, it is unlawfully occupying and
using the subject strip of land as a railroad right of way without valid title yet it refuses to
vacate it even after demand of the heirs. Furthermore, it tenaciously insists on ownership
thereof despite a clear showing to the contrary.
We thus uphold the grant by the Court of Appeals of attorneys fees in the amount of P10,000
considering the evident bad faith of petitioner in refusing respondents just and lawful claims,
compelling the latter to litigate.[44]
WHEREFORE, the petition is DENIED. The appealed decision dated November 17, 1995 and
resolution dated March 2, 1996 of the Court of Appeals are AFFIRMED with MODIFICATION.
Petitioner Bogo-Medellin Milling Company, Inc. is hereby ordered to vacate the subject strip
of land denominated as Cadastral Lot No. 954, remove its railway tracks thereon and return
its possession to the private respondents, the heirs of Magdaleno Valdez, Sr. It is also hereby
ordered to pay private respondents attorney's fees in the amount of P10,000.

1. The doctrine of constructive possession indicates the answer. The general rule is that the possession and
cultivation of a portion of a tract under claim of ownership of all is a constructive possession of all, if the
remainder is not in the adverse possession of another. _____________