Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 80511 January 25, 1991

COSTABELLA CORPORATION, petitioner,

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

Roco, Bunag, Kapunan & Migallos for petitioner.

Albano, Garcia & Diaz Law Offices for Katipunan Lumber Co., Inc.
Zosa & Quijano Law Offices for respondents.

SARMIENTO, J.:

The principal issue raised in this petition for review on certiorari of the decision dated May 30, 1986
1

of the Court of Appeals, which modified the decision rendered by the Regional Trial Court of Lapu-
2 3

Lapu City in Cebu, is whether or not the private respondents had acquired an easement of right of
way, in the form of a passageway, on the petitioner's property.

It is admitted that the petitioner owns the real estate properties designated as Lots Nos. 5122 and
5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it had
constructed a resort and hotel. The private respondents, on the other hand, are the owners of
adjoining properties more particularly known as Lots Nos. 5123-A and 5123-C of the Opon Cadastre.

Before the petitioner began the construction of its beach hotel, the private respondents, in going to
and from their respective properties and the provincial road, passed through a passageway which
traversed the petitioner's property. In 1981, the petitioner closed the aforementioned passageway
when it began the construction of its hotel, but nonetheless opened another route across its property
through which the private respondents, as in the past, were allowed to pass. (Later, or sometime in
August, 1982, when it undertook the construction of the second phase of its beach hotel, the
petitioner fenced its property thus closing even the alternative passageway and preventing the
private respondents from traversing any part of it.)

As a direct consequence of these closures, an action for injunction with damages was filed against
the petitioner by the private respondents on September 2, 1982 before the then Court of First
Instance of Cebu. 4

In their complaint, the private respondents assailed the petitioner's closure of the original
passageway which they (private respondents) claimed to be an "ancient road right of way" that had
been existing before World War II and since then had been used by them, the community, and the
general public, either as pedestrians or by means of vehicles, in going to and coming from Lapu-
Lapu City and other parts of the country. The private respondents averred that by closing the alleged
road right of way in question, the petitioner had deprived them access to their properties and caused
them damages.

In the same complainant, the private respondents likewise alleged that the petitioner had
constructed a dike on the beach fronting the latter's property without the necessary permit,
obstructing the passage of the residents and local fishermen, and trapping debris and flotsam on the
beach. They also claimed that the debris and flotsam that had accumulated prevented them from
using their properties for the purpose for which they had acquired them. The complaint this prayed
for the trial court to order the re-opening of the original passageway across the petitioner's property
as well as the destruction of the dike.
5

In its answer, the petitioner denied the existence of an ancient road through its property and
6

counter-averred, among others, that it and its predecessors-in-interest had permitted the temporary,
intermittent, and gratuitous use of, or passage through, its property by the private respondents and
others by mere tolerance and purely as an act of neighborliness. It justified the walling in of its
property in view of the need to insure the safety and security of its hotel and beach resort, and for
the protection of the privacy and convenience of its hotel patrons and guests. At any rate, the
petitioner alleged, the private respondents were not entirely dependent on the subject passageway
as they (private respondents) had another existing and adequate access to the public road through
other properties. With respect to the dike it allegedly constructed, the petitioner stated that what it
built was a breakwater on the foreshore land fronting its property and not a dike as claimed by the
private respondents. Moreover, contrary to the private respondents' accusation, the said construction
had benefitted the community especially the fishermen who used the same as mooring for their
boats during low tide. The quantity of flotsam and debris which had formed on the private
respondents' beach front on the other hand were but the natural and unavoidable accumulations on
beaches by the action of the tides and movement of the waves of the sea. The petitioner's answer
then assailed the private respondents' complaint for its failure to implead as defendants the owners
of the other properties supposedly traversed by the alleged ancient road right way, indispensable
parties without whom no final adjudication of the controversy could be rendered. 7

After trial, the court a quo rendered a decision on March 15, 1984 finding that the private
respondents had acquired a vested right over the passageway in controversy based on its long
existence and its continued use and enjoyment not only by the private respondents, but also by the
community at large. The petitioner in so closing the said passageway, had accordingly violated the
private respondents' vested right. Thus, the trial court ordered the petitioner:

1. To open and make available the road in question to the plaintiffs and the general public at
all times free of any obstacle thereof, unless the defendant, shall provide another road
equally accessible and convenient as the road or passage closed by the defendant;

2. To pay the plaintiff Katipunan Lumber Company, Inc. the amount of FIVE THOUSAND
PESOS (P5,000.00) a month beginning January, 1983, and the plaintiff Perfecto Guangco
the sum of TWO HUNDRED PESOS (P200.00) a month beginning September, 1982,
representing their respective expenditures they had incurred in other beach resorts after the
road was closed, until the passageway claimed by them is opened and made available to
them, or if the defendant chooses to provide another road, until such road is made available
and conveniently passable to the plaintiffs and the general public; and

3. To pay the sum of FIFTEEN THOUSAND PESOS (P15,000.00) attorney's fees, and to pay
the costs. 8
Both parties elevated the trial court's decision to the Court of Appeals, with the petitioner questioning
the alleged "vested right" of the private respondents over the subject passageway, and the private
respondents assailing the dismissal of their complaint insofar as their prayer for the demolition of the
petitioner's "dike" is concerned.

In its decision, the respondent Appellate Court held as without basis the trial court's finding that the
private respondents had acquired a vested right over the passageway in question by virtue of
prescription. The appellate court pointed out that an easement of right of way is a discontinuous
9

one which, under Article 622 of the New Civil Code, may only be acquired by virtue of a title and not
by prescription. That notwithstanding, the appellate court went on to rule that ". . . in the interest of
10

justice and in the exercise by this Court of its equity jurisdiction, there is no reason for Us in not
treating the easement here sought by appellees Katipunan Lumber Co., Inc. and Perfecta Guangco
as one that is not dependent upon the claims of the parties but a compulsory one that is legally
demandable by the owner of the dominant estate from the owner of the servient estate." Thus the 11

appellate court: (1) granted the private respondents the right to an easement of way on the
petitioner's property using the passageway in question, unless the petitioner should provide another
passageway equally accessible and convenient as the one it closed; (2) remanded the case to the
trial court for the determination of the just and proper indemnity to be paid to the petitioner by the
private respondents for the said easement; and (3) set aside the trial court's award of actual
damages and attorney's fees. 12

On petitioner's motion for partial reconsideration, the respondent court issued on October 27, 1987 a
resolution denying the said motion. The Appellate Court however in denying the petitioner's motion
13

for reconsideration stated that:

. . . While it is true that there is another outlet for the plaintiff to the main road, yet such outlet
is a new road constructed in 1979, while the road closed by defendant existed since over 30
years before. Legally, the old road could be closed; but since the existing outlet is
inconvenient to the plaintiff, equitably the plaintiff should be given a chance to pay for a more
convenient outlet through the land of the defendant at a point least prejudicial to the latter. In
any event, the plaintiff shall pay for all damages that defendant corporation may sustain and
the defendant regulates the manner of use of the right of way to protect defendant's property
and its customers. This is the gist of Our decision. 14

Now before us, the petitioner contends that the decision of the respondent appellate court is grossly
erroneous and not in accord with the provisions of Articles 649 and 650 of the Civil Code on
easements and the prevailing jurisprudence on the matter.

The petition is meritorious.

It is already well-established that an easement of right of way, as is involved here, is

discontinuous and as such can not be acquired by prescription. Insofar therefore as the appellate
15 16

court adhered to the foregoing precepts, it stood correct. Unfortunately, after making the correct
pronouncement, the respondent Appellate Court did not order the reversal of the trial court's decision
and the dismissal of the complaint after holding that no easement had been validly constituted over
the petitioner's property. Instead, the Appellate Court went on to commit a reversible error by
considering the passageway in issue as a compulsory easement which the private respondents, as
owners of the "dominant" estate, may demand from the petitioner the latter being the owner of the
"servient" estate.

It is provided under Articles 649 and 650 of the New Civil Code that:
 Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables pertaining to other persons and
without adequate outlet to a public highway, is entitled to demand a right of way through the
neighboring estates, after payment of the proper indemnity.

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

In case the right of way is limited to the necessary passage for the cultivation of the estate
surrounded by others and for the gathering of its crops through the servient estate without a
permanent way, the indemnity shall consist in the payment of the damage caused by such
encumbrance.

This easement is not compulsory if the isolation of the immovable is due to the proprietor's
own acts.

Art. 650. 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.

Based on the foregoing, the owner of the dominant estate may validly claim a compulsory right of
way only after he has established the existence of four requisites, to wit: (1) the (dominant) estate is
surrounded by other immovables and is without adequate outlet to a public highway; (2) after
payment of the proper indemnity; (3) the isolation was 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. Additionally, the burden
of proving the existence of the foregoing pre-requisites lies on the owner of the dominant estate. 17

Here, there is absent any showing that the private respondents had established the existence of the
four requisites mandated by law. For one, they failed to prove that there is no adequate outlet from
their respective properties to a public highway. On the contrary, as alleged by the petitioner in its
answer to the complaint, and confirmed by the appellate court, "there is another outlet for the
plaintiffs (private respondents) to the main road." Thus, the respondent Court of Appeals likewise
18

admitted that "legally the old road could be closed." Yet, it ordered the re- opening of the old
19

passageway on the ground that "the existing outlet (the other outlet) is inconvenient to the
plaintiff." On this score, it is apparent that the Court of Appeals lost sight of the fact that the
20

convenience of the dominant estate has never been the gauge for the grant of compulsory right of
way. To be sure, the true standard for the grant of the legal right is "adequacy." Hence, when there
21

is already an existing adequate outlet from the dominant estate to a public highway, even if the said
outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely
unjustified. For to justify the imposition of an easement or right of way, "there must be a real, not a
fictitious or artificial necessity for it."
22

Further, the private respondents failed to indicate in their complaint or even to manifest during the
trial of the case that they were willing to indemnify fully the petitioner for the right of way to be
established over its property. 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.
Finally, the private respondents failed to allege, much more introduce any evidence, that the
passageway they seek to be re-opened is at a point least prejudicial to the petitioner. Considering
that the petitioner operates a hotel and beach resort in its property, it must undeniably maintain a
strict standard of security within its premises. Otherwise, the convenience, privacy, and safety of its
clients and patrons would be compromised. That indubitably will doom the petitioner's business. It is
therefore of great importance that the claimed light of way over the petitioner's property be located at
a point least prejudicial to its business.

Hence, the Private respondents' properties can not be said to be isolated, for which a compulsory
easement is demandable. Insofar therefore as the Appellate Court declared the case to be proper as
a controversy for a compulsory right of way, this Court is constrained to hold that it was in error.

Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via of the
Romans. They are demanded by necessity, that is, to enable owners of isolated estates to make full
23

use of their properties, which lack of access to public roads has denied them. Under Article 649 of
24

the Civil Code, they are compulsory and hence, legally demandable, subject to indemnity and the
concurrence of the other conditions above-referred to.

As also earlier indicated, there must be a real necessity therefor, and not mere convenience for the
dominant estate. Hence, if there is an existing outlet, otherwise adequate, to the highway, the
"dominant" estate can not demand a right of way, although the same may not be convenient. Of
course, the question of when a particular passage may be said to be "adequate" depends on the
circumstances of each case. Manresa, however, says: "In truth, not only the estate which absolutely
does not possess it should be considered in this condition, but also that which does not have one
sufficiently safe or serviceable; an estate bordering a public road through an inaccessible slope or
precipice, is in fact isolated for all the effects of the easement requested by its owner. On the other
hand, an estate which for any reason has necessarily lost its access to a public road during certain
periods of the year is in the same condition. . . . There are some who propound the query as to
whether the fact that a river flows between the estate and the public road should be considered as
having the effect of isolating the estate. . . . If the river may be crossed conveniently at all times
without the least danger, it cannot be said that the estate is isolated; in any other case, the answer is
in the affirmative."
25

The isolation of the dominant estate is also dependent on the particular need of the dominant owner,
and the estate itself need not be totally landlocked. What is important to consider is whether or not a
right of way is necessary to fill a reasonable need therefor by the owner. Thus, as Manresa had
26

pointed out, if the passageway consists of an "inaccessible slope or precipice," it is as if there is no

27

passageway, that is, one that can sufficiently fulfill the dominant owner's necessities, although by the
existence of that passageway the property can not be truly said that the property is isolated. So also,
while an existing right of way may have proved adequate at the start, the dominant owner's need
may have changed since then, for which Article 651 of the Code allows adjustments as to width. 28

But while a right of way is legally demandable, the owner of the dominant estate is not at liberty to
impose one based on arbitrary choice. Under Article 650 of the Code, it shall be established upon
two criteria: (1) at the point least prejudicial to the servient state; and (2) where the distance to a
public highway may be the shortest. According, however, to one commentator, "least prejudice"
prevails over "shortest distance." Yet, each case must be weighed according to its individual
29

merits, and judged according to the sound discretion of the court. "The court," says Tolentino, "is not
bound to establish what is the shortest; a longer way may be established to avoid injury to the
servient tenement, such as when there are constuctions or walls which can be avoided by a
roundabout way, or to secure the interest of the dominant owner, such as when the shortest distance
would place the way on a dangerous decline." 30

It is based on these settled principles that we have resolved this case.

WHEREFORE, the decision dated May 30, 1986, and the resolution dated October 27, 1987, of the
respondent Court of Appeals are SET ASIDE and the private respondents' complaint is hereby
DISMISSED. Costs against the private respondents.

SO ORDERED.

Melencio-Herrera, Paras, Padilla and Regalado, JJ., concur.

Footnotes

1
Ejercito, Bienvenido C., J., ponente, Coquia, Jorge R., and Castro-Bartolome,
Floreliana, JJ., concurring;Rollo, 52-59.

2
The Court of Appeals was impleaded as a party respondent by virtue of the Court
Resolution dated September 11, 1989.

3
Penned by Judge Teodoro K. Risos; Rollo, Id., 44-50.

4
Rollo, id., 11.

5
Id., 28-31.

6
Id., 12.

7
Id., 33-42.

8
Id., 50.

9
Id., 57.

10
Id.

11
Id., 58.

12
Id., 59.

13
Id., 61.

14
Id.

15
Ronquillo vs. Roco, 103 Phil. 84 (1958); Cuaycong vs. Benedicto, 37 Phil. 781 (1918).

16
CIVIL CODE, art. 622; Ronquillo vs. Roco, supra, Cuaycong vs. Benedicto, supra.

Locsin vs. Climaco, No. L-27319, January 31, 1969, 26 SCRA 816; Angela Estate, Inc. vs.
17

Court of First Instance of Negros Occidental, No. L-27084, July 31, 1968, 24 SCRA 500;
Bacolod-Murcia Milling Co., Inc. vs. Capitol Subdivision, No. L-25887, July 26, 1966, 17
SCRA 731.
 18
Rollo, id., 61.

19
Id.

20
Id.

Rivera vs. Intermediate Appellate Court, No. 74249, January 20, 1989, 169 SCRA 307;
21

Ramos, Sr. vs. Gatchalian Realty, Inc., No. 75905, October 12, 1987, 154 SCRA 703.

Ramos, Sr. vs. Gatchalian Realty, Inc., supra, 712; see also, II TOLENTINO, CIVIL CODE
22

OF THE PHILIPPINES 371. (1972 ed.).

23
II FRANCISCO, CIVIL CODE OF THE PHILIPPINES, 787.

24
Id.

25
Id., 789.

26
Id., 790.

27
Id., 789.

28
Id., 790.

29
TOLENTINO, id., 373.

30
Id., 374.

[G.R. No. 112331. May 29, 1996]

ANASTACIA QUIMEN, petitioner, vs. COURT OF APPEALS and

YOLANDA Q. OLIVEROS, respondents.

DECISION
BELLOSILLO,J.:

IN EASEMENT OF RIGHT OF WAY that easement where the way is shortest and
will cause least prejudice shall be chosen. However, if the two circumstances do not
concur in a single tenement, the way where damage will be least shall be used even if
not the shortest route. This is so because least prejudice prevails overshortest
[1]

distance. This means that the court is not bound to establish what is the shortest
distance; a longer way may be adopted to avoid injury to the servient estate, such as
when there are constructions or walls which can be avoided by a round about way, or to
secure the interest of the dominant owner, such as when the shortest distance would
place the way on a dangerous decline.

Thus we conclude from the succeeding facts: Petitioner Anastacia Quimen together
with her brothers Sotero, Sulpicio, Antonio and sister Rufina inherited a piece of
property situated in Pandi, Bulacan. They agreed to subdivide the property equally
among themselves, as they did, with the shares of Anastacia, Sotero, Sulpicio and
Rufina abutting the municipal road. The share of Anastacia, located at the extreme left,
was designated as Lot No. 1448-B- 1. It is bounded on the right by the property of
Sotero designated as Lot. No. 1448-B-2. Adjoining Soteros property on the right are
Lots Nos. 1448-B-3 and 1448-B-4 originally owned by Rufina and Sulpicio, respectively,
but which were later acquired by a certain Catalina Santos. Located directly behind the
lots of Anastacia and Sotero is the share of their brother Antonio designated as Lot No.
1448-B-C which the latter divided into two (2) equal parts, now Lots Nos. 1448-B-6-A
and 1448-B-6-B, each with an area of 92 square meters. Lot No. 1448-B-6-A is located
behind Anastacias Lot No. 1448-B-1, while Lot No. 1448-B-6-B is behind the property of
Sotero, father of respondent Yolanda.

In February 1982 Yolanda purchased Lot No. 1448-B-6-A from her uncle Antonio
through her aunt Anastacia who was then acting as his administratrix. According to
Yolanda, when petitioner offered her the property for sale she was hesitant to buy as it
had no access to a public road. But Anastacia prevailed upon her to buy the lot with the
assurance that she would give her a right of way on her adjoining property for P200.00
per square meter.

Thereafter, Yolanda constructed a house on the lot she bought using as her
passageway to the public highway a portion of Anastacia s property. But when Yolanda
finally offered to pay for the use of the pathway Anastacia refused to accept the
payment. In fact she was thereafter barred by Anastacia from passing through her
property.
[2]

In February 1986 Yolanda purchased the other lot of Antonio Quimen, Lot No. 1448-
B-6-B, located directly behind the property of her parents who provided her a
pathway gratis et amore between their house, extending about nineteen (19) meters
from the lot of Yolanda behind the sari-sari store of Sotero, and Anastacias perimeter
fence. The store is made of strong materials and occupies the entire frontage of the lot
measuring four (4) meters wide and nine meters (9) long. Although the pathway leads to
the municipal road it is not adequate for ingress and egress. The municipal road cannot
be reached with facility because the store itself obstructs the path so that one has to
pass through the back entrance and the facade of the store to reach the road.

On 29 December 1987 Yolanda filed an action with the proper court praying for a
right of way through Anastacia s property. An ocular inspection upon instruction of the
presiding judge was conducted by the branch clerk of court. The report was that the
proposed right of way was at the extreme right of Anastacias property facing the public
highway, starting from the back of Soteros sari-sari store and extending inward by one
(1) meter to her property and turning left for about five (5) meters to avoid the store of
Sotero in order to reach the municipal road and the way was unobstructed except for
[3]

an avocado tree standing in the middle. [4]

But on 5 September 1991 the trial court dismissed the complaint for lack of cause of
action, explaining that the right of way through Soteros property was a straight path and
to allow a detour by cutting through Anastacias property would no longer make the path
straight. Hence the trial court concluded that it was more practical to extend the existing
pathway to the public road by removing that portion of the store blocking the path as
that was the shortest route to the public road and the least prejudicial to the parties
concerned than passing through Anastacias property. [5]

On appeal by respondent Yolanda, the Court of Appeals reversed the lower court
and held that she was entitled to a right of way on petitioners property and that the way
proposed by Yolanda would cause the least damage and detriment to the servient
estate. The appellate court however did not award damages to private respondent as
[6]

petitioner did not act in bad faith in resisting the claim.

Petitioner now comes to us imputing ERROR to respondent Court of Appeals: (a) in

disregarding the agreement of the parties; (b) in considering petitioners property as a
servient estate despite the fact that it does not abut or adjoin the property of private
respondent; and, (c) in holding that the one-meter by five-meter passage way proposed
by private respondent is the least prejudicial and the shortest distance to the public
road.

Incidentally, petitioner denies having promised private respondent a right of way.

She claims that her agreement with private respondent was to provide the latter with a
right of way on the other lot of Antonio Quimen under her administration when it was not
yet sold to private respondent. Petitioner insists that passing through the property of
Yolandas parents is more accessible to the public road than to make a detour to her
property and cut down the avocado tree standing thereon.

Petitioner further argues that when Yolanda purchased Lot No. 1448-B-6-B in 1986
the easement of right of way she provided her (petitioner) was ipso jure extinguished as
a result of the merger of ownership of the dominant and the servient estates in one
person so that there was no longer any compelling reason to provide private respondent
with a right of way as there are other surrounding lots suitable for the
purpose. Petitioner strongly maintains that the proposed right of way is not the shortest
access to the public road because of the detour and that, moreover, she is likely to
suffer the most damage as she derives a net income of P600.00 per year from the sale
of the fruits of her avocado tree, and considering that an avocado has an average life
span of seventy (70) years, she expects a substantial earning from it. [7]
 But we find no cogent reason to disturb the ruling of respondent appellate court
granting a right of way to private respondent through petitioners property. In fact, as
between petitioner Anastacia and respondent Yolanda their agreement has already
been rendered moot insofar as it concerns the determination of the principal issue
herein presented. The voluntary easement in favor of private respondent, which
petitioner now denies but which the court is inclined to believe, has in fact become a
legal easement or an easement by necessity constituted by law. [8]

As defined, an easement is a real right on anothers property, corporeal and

immovable, whereby the owner of the latter must refrain from doing or allowing
somebody else to do or something to be done on his property, for the benefit of another
person or tenement. It is jus in re aliena, inseparable, indivisible and perpetual, unless
[9]

extinguished by causes provided by law. A right of way in particular is a privilege

constituted by covenant or granted by law to a person or class of persons to pass over
[10]

anothers property when his tenement is surrounded by realties belonging to others

without an adequate outlet to the public highway. The owner of the dominant estate can
demand a right of way through the servient estate provided he indemnifies the owner
thereof for the beneficial use of his property. [11]

The conditions sine qua non for a valid grant of an easement of right of way are: (a)
the dominant estate is surrounded by other immovables without an adequate outlet to a
public highway; (b) the dominant estate is willing to pay the proper indemnity; (c) the
isolation was not due to the acts of the dominant estate; and, (d) the right of way being
claimed is at a point least prejudicial to the servient estate.
[12]

A cursory examination of the complaint of respondent Yolanda for a right of

way readily shows that
[13]

[E]ven before the purchase of the said parcels of land the plaintiff was reluctant to
purchase the same for they are enclosed with permanent improvements like a concrete
fence and store and have (sic) no egress leading to the road but because of the
assurance of the defendant that plaintiff will be provided one (1) meter wide and
five (5) meters long right of way in the sum of P200.00 per square meter to be taken
from Anastacias lot at the side of a concrete store until plaintiff reach(es) her fathers
land, plaintiff was induced to buy the aforesaid parcels of land x x x. That the
aforesaid right of way is the shortest, most convenient and the least onerous leading to
the road and being used by the plaintiffs predecessors-in-interest from the very
inception x x x.

The evidence clearly shows that the property of private respondent is hemmed in by
the estates of other persons including that of petitioner; that she offered to pay P200.00
per square meter for her right of way as agreed between her and petitioner; that she did
not cause the isolation of her property; that the right of way is the least prejudicial to the
servient estate. These facts are confirmed in the ocular inspection report of the clerk of
[14]

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. [15]

Petitioner finally insists that respondent court erroneously concluded that the right of
way proposed by private respondent is the least onerous to the parties. We cannot
agree. Article 650 of the New Civil Code explicitly states that the easement of right of
way shall be established at the point least prejudicial to the servient estate and, insofar
as consistent with this rule, where the distance from the dominant estate to a public
highway may be the shortest. The criterion of least prejudice to the servient estate must
prevail over the criterion ofshortest distance although this is a matter ofjudicial
appreciation. While shortest distance may ordinarily implyleast prejudice, it is not always
so as when there are permanent structures obstructing the shortest distance;while on
the other hand, the longest distance may be free of obstructions and the easiest or most
convenient to pass through. In other words, where the easement may be established on
any of several tenements surrounding the dominant estate, the one where the way
is shortest and will cause the least damage should be chosen.However, as elsewhere
stated, if these two (2) circumstances do not concur in a single tenement, the way which
will cause the least damage should be used, even if it will not be the shortest. This is
[16]

the test.

In the trial court, petitioner openly admitted -

Q. You testified during your direct examination about this plan, kindly go over this
and please point to us in what portion of this plan is the house or store of the father of
the (plaintiff)?

A. This one, sir (witness pointed a certain portion located near the proposed right
of way).

xxx xxx xxx

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

A. It is not true, sir.

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

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

xxx xxx xxx

 Q. Just before your brother disposed that 1/2 portion of the lot in question, what right of
way does (sic) he use in reaching the public road, kindly point to this sketch that
he is (sic) using in reaching the public road?

A. In my property, sir.

Q. Now you will agree with me x x x the main reason why your brother is (sic) using
this property is because there was a store located near this portion?

A. Yes, and according to the father of Yolanda there is no other way than this, sir.[17]

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

In applying Art. 650 of the New Civil Code, respondent Court of Appeals declared
that the proposed right of way of Yolanda, which is one (1) meter wide and
five (5) meters long at the extreme right of petitioners property, will cause the least
prejudice and/or damage as compared to the suggested passage through the property
of Yolanda s father which would mean destroying the sari-sari store made of strong
materials. Absent any showing that these findings and conclusion are devoid of factual
support in the records, or are so glaringly erroneous, this Court accepts and adopts
them. As between a right of way that would demolish a store of strong materials to
provide egress to a public highway, and another right of way which although longer will
only require an avocado tree to be cut down, the second alternative should be
preferred. After all, it is not the main function of this Court to analyze or weigh the
evidence presented all over again where the petition would necessarily invite calibration
of the whole evidence considering primarily the credibility of witnesses, existence and
relevancy of specific surrounding circumstances, their relation to each other, and the
probabilities of the situation. In sum, this Court finds that the decision of respondent
[18]

appellate court is thoroughly backed up by law and the evidence.

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

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

SO ORDERED.

Padilla (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.

[1]
Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the Philippines, 1954 ed.,
Vol. II, p. 332, citing Casals Colldecarrera, pp. 108- 109.

[2]
Memorandum for private respondent, Rollo, pp. 56-58

[3]
Docketed as Civil Case No. 690-M-87, raffled to Br. 19 presided by Judge Camilo O. Montesa, Jr.

[4]
Exh. B, Ocular Inspection Report, Records, pp. 24-25.

[5]
Records, pp. 87-89.

[6]
Decision penned by Justice Fidel P. Purisima, concurred in by Justices Justo P. Torres, Jr., and
Bernardo P. Pardo; Rollo, pp. 14-23.

[7]
Memorandum of Petitioner, Rollo, pp. 70-75.

[8]
Sec. 3, Ch. 2, Title VII, Bk. II, NCC.

[9]
3 Sanchez Roman 472.

[10]
Art. 634, NCC.

[11]
Art. 649, NCC. The owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables pertaining to other persons and without
adequate outlet to a public highway, is entitled to demand a right of way through the neighboring
estates, after payment of the proper indemnity. Should this easement be established in such a
manner that its use may be continuous for all the needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of the value of the land occupied and the amount
of the damage caused to the servient estate x x x In case the right of way is limited to the
necessary passage for the cultivation of the estate surrounded by others and for the gathering of
its crops through the servient estate without a permanent way, the indemnity shall consist in the
payment of the damage caused by such encumbrance. This easement is not compulsory if the
isolation of the immovable is due to the proprietors own acts.

[12]
Costabella Corporation v. Court of Appeals, G.R. No. 80511, 25 January 1991, 193 SCRA 333,
citing Locsin v. Climaco, No. L-273 19, 31 January 1969,26 SCRA 816, Angela Estate, Inc. v.
Court of First instance of Negros Occidental, No. L-27084, 31 July 1968, 24 SCRA 500, Bacolod
Murcia Milling Co., Inc. v. Capitol Subdivision, No. L-25887, 26 July 1966, 17 SCRA 731.

[13]
Exh. A, Records, pp. 1-4.

[14]
TSN, 6 July 1988.

[15]
Records, p. 87.

[16]
Tolentino, Arturo M., Commentaries and Jurisprudence on the Civil Code of the Philippines, 1972 ed.,
Vol. II, p. 374, citing 2 Castan 275.
[17]
TSN, pp. 14-15, 4 January 1989.

[18]
Bernardo v. Court of Appeals, G.R. No. 101680,7 December 1992, 216 SCRA 224.

G.R. No. 76322. March 11, 1991.]

FOTO-QUICK, INC., Petitioner, v. HON. NICOLAS P. LAPENA, JR., PROVINCIAL SHERIFF OF RIZAL,
and RUSTICO CLAVERIA, doing business under the name and style PHOTO-QUICK,Respondents.

Sycip, Salazar, Hernandez & Gatmaitan for Petitioner.

De Jesus, Paguio & Manimtim for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; APPEAL; EXECUTION; PENDING APPEAL; WITHIN THE SOUND JUDICIAL
DISCRETION; ASSESSMENT BY TRIAL COURT OF EQUITIES OF THE CASE, ENTITLED TO GREAT WEIGHT.
Since the issuance of an execution pending appeal is a matter which is properly within the discretion of the
court having jurisdiction, and such discretion may be interfered with only in of grave abuse thereof, the facts
and circumstances which moved the court a quo to act as it did and its own assessment of the equities the
case are entitled to considerable weight when grave abuse of discretion is alleged, particularly, when the
conclusions of said court are based on evidence that is not controverted.

2. ID.; ID.; EXECUTION; MOTION FOR ISSUANCE OF WRIT; NEED NOT BE VERIFIED. There is no
requirement under the Rules of Court that the motion for issuance of a writ of execution must be verified.

3. ID.; SPECIAL CIVIL ACTION; CERTIORARI; GRAVE ABUSE OF DISCRETION; ABSENCE THEREOF IN CASE
AT BAR. All the requisites provided for by Section 2, Rule 39 of the Rules of Court being present, this
petition must fail. That the action of respondent Judge could not correctly be characterized as a grave abuse
of discretion is obvious as it finds direct support in the applicable legal provisions.

4. ID.; ACTIONS; APPEAL; EXECUTION PENDING APPEAL; POSTING AND APPROVAL OF BOND NOT
SUFFICIENT IN GRANT THEREOF. "It is not intended obviously that execution pending appeal issue as a
matter of course. Good reasons, special, important, pressing reasons must exist to justify it; otherwise,
instead of an instrument of solicitude and justice, it may well become a tool of oppression and inequity. But
to consider the mere posting of a bond good reason would precisely make immediate execution of a
judgment pending appeal routinary, the rule rather than the exception. Judgments would be executed
immediately, as a matter of course, once rendered if all that the prevailing party needed to do was to post
bond to answer for the damages that might result therefrom. This is a situation, to repeat, neither
contemplated, nor intended by law." cralaw virtua1aw library

5. ID.; ID.; ID.; ID.; GRANT THEREOF IN INJUNCTION CASES. The course of action taken by the lower
court was actually in compliance with the express directive in Section 4, Rule 39 of the Rules of Court,
providing for the immediate execution of judgment rendered in injunction cases notwithstanding the
pendency of an appeal. For this, no special reason need even be invoked. The trial court may, in its
discretion, stay immediate execution or refuse to do so.

6. ID.; PROVISIONAL REMEDIES; INJUNCTION; COMPLAINT FOR UNFAIR COMPETITION. A complaint for
unfair competition is basically a suit for "injunction and damages" (Section 29 in relation to Sec. 23,
Republic Act 166). Injunction, for the purpose of enjoining the unlawful competitor from proceeding further,
and damages, in order to allow the aggrieved party to recover the damages he has suffered by reason the
said unlawful competition. And it has been held that an action for unfair competition with prayer for an
injunction, as in Civil Case No. 29674, partakes of the nature of an action for injunction within the
contemplation of Section 4 of Rule 39 of the Rules of Court.

7. ID.; SPECIAL CIVIL ACTION; CERTIORARI; AVAILABILITY OF REMEDY. "Although Section 1, Rule 65 of
the Rules of Court provides that the special civil action of certiorari may only be invoked when there is no
appeal, nor any plain, speedy and adequate remedy in the course of law this rule is not without exception.
The availability of the ordinary course of appeal does not constitute sufficient ground to prevent a party from
making use of the extraordinary remedy of certiorari where the appeal is not an adequate remedy or equally
beneficial, speedy and sufficient. It is the inadequacy not the mere absence of all other legal remedies
and the danger of failure of justice without the writ, that must usually determine the propriety of certiorari."
(Jaca v. Davao Lumber Co., L-25771, March 29, 1982, SCRA 107).

DECISION

PADILLA, J.:

This is a petition for certiorari with prayer for the issuance a writ of preliminary injunction and/or restraining
order, which to annul on the ground of grave abuse of discretion the Order of respondent Judge, dated 23
October 1986, granting the motion for execution pending appeal in Civil Case No. 29674 entitled "Rustico
Claveria, doing business under the name and style PHOTO-QUICK, plaintiff, versus Foto-Quick Inc.,
defendant," Branch 167, RTC, Pasig, Metro Manila. chanrobles virtual lawlibrary

The facts which gave rise to this petition are as follows: chanrob1es virtual 1aw library

On 23 April 1978, private respondent Rustico Claveria, filed the Philippine Patent Office a petition for
cancellation of Certificate of Registration No. 24381 issued for the trade name FOTO-QUICK. While the
administrative case was pending, Rustico Claveria filed on 1 June 1978 a complaint against Foto-Quick, Inc.
with the Regional Trial Court of Pasig for unfair competition with preliminary injunction docketed as Civil
Case No. 29674.

After trial, the respondent Judge rendered a decision on 17 1986 dismissing the complaint and lifting the
preliminary injunction earlier issued. The plaintiff (private respondent herein) was also ordered to pay
defendant (petitioner herein) attorneys fees of P20,000.00 as well as the costs of suit. The defendants
counter-claim for damages was dismissed for lack of merit. 1

Private respondent Claveria then filed a motion for reconsideration and/or new trial dated 4 April 1986. Said
motion sought a new trial upon the ground of new discovered evidence consisting of the decision rendered
by the Philippine Patent Office dated 14 January 1985 in the cancellation case docketed as Inter Partes Case
No. 1163 entitled "Rustico Claveria etc. versus Foto-Quick Inc.," cancelling therein respondents Certificate of
Registration 24381 dated 16 November 1976 for the trade name "FOTO-QUICK" for on photo-vending
equipment. 2
The court a quo granted the motion for new trial and on 26 September 1986, the respondent Judge found
the petitioner Foto-Quick Inc. guilty of unfair competition and therefore liable for damage The dispositive
part of the lower courts resolution reads as follows: jgc:chanroble s.com.ph

"WHEREFORE, this Court reconsiders its Decision dated 17 March 1986 and enters a new one ordering
defendant to pay plaintiff: chanrob1es virtual 1aw library

1. the amount of P100,000.00 as actual and compensatory damages; and

2. the amount of P50,000.00 as attorneys fees.

This Court further makes the writ of preliminary injunction earlier issue permanent.

Costs against defendant.

SO ORDERED." 3

Private respondent (as plaintiff) then moved for execution pending appeal alleging as good reasons
therefore the following:jgc:chanrobles.com .ph

"A. Plaintiff has reliable information that defendant has transferred and/or is in the process of transferring its
properties to another in order to render ineffective any judgment against it.

B. The bulk of defendants properties consist of photo-vending machines acquired years back and which by
now have greatly depreciated and/or had broken down and/or are unserviceable or non-operation national
therefore the lapse of additional time would also make the ultimate judgment ineffective (Scottish Union
and National Ins. Co. et al Macadaeg, 48 O.G. 4774), assuming arguendo that there are still properties
available for execution.

C. Plaintiff is not aware of any visible operations for sometime now on part of the defendant that makes said
plaintiff conclude t the judgment debtor is in imminent danger of insolvency (Santos v. Mojica, L-24266,
January 24, 1969) or is actually insolvent (Padilla, Et. Al. v. C.A. Et. Al., L-31569, September 28, 1978)
which are two (2) valid grounds for execution during the appeal period. 4

Petitioner Foto-Quick, Inc. filed on 15 October 1986 its opposition to the motion for execution pending
appeal and a timely notice of appeal from the resolution dated 26 September 1986 of the court a quo. chanroble s law library : red

In its opposition to private respondents motion for execution pending appeal, petitioner Foto-Quick, Inc.
averred that no proof been presented by Rustico Claveria as to the truthfulness of his allegations and the
absence of verification in the motion for execution pending appeal clearly showed that even he (Rustico
Claveria) was not convinced of the factual basis of his said allegations. 5

On 23 October 1986, however, respondent Judge granted private respondents motion for execution pending
appeal upon his filing of a P150,000.00 bond which would answer for whatever damages the petitioner may
suffer as a consequence thereof. 6 Upon posting of the bond by private respondent, a writ of execution
pending appeal was issued on 29 October 1986. Consequently, on 30 October 1986, the Deputy Sheriff of
Branch 167 of the court a quo seized the following personal properties of the petitioner; three (3) photo-
vending machines and four (4) I.D. photo three-minute service machines.

As a result of the seizure of said machines, Virginia Ong, treasurer of Island-Photo Center, filed a third-party
claim, alleging ownership over the seven (7) photo-vending machines, subject of the execution sale
scheduled on 18 November 1986, and stating in its claim that the aggregate value of the machines was
P605,000.00. 7

Thereupon, the petitioner interposed the present petition claiming that respondent judge acted without
jurisdiction and with grave abuse of discretion in granting the motion for execution pending appeal and that
there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law other than the
present petition.

On 17 November 1988, the Court issued a Temporary Restraining Order enjoining the respondent Judge
from enforcing and/or carrying out the Order dated 23 October 1986 issued in Civil Case No. 29674. On the
same day, the court a quo issued an Order acting on the urgent ex-parte motion to stay execution filed by
the petitioner. In said Order, the court a quo approved the supersedeas bond posted by the petitioner in the
amount of P200,000.00 and stayed the execution pending appeal. 8

The principal issue for this Courts resolution is whether or respondent judge committed grave abuse of
discretion amounting to lack of jurisdiction in granting the motion for execution pending appeal in the civil
case before him.

Section 2, Rule 39 of the Rules of Court provides that on motion of the prevailing party with notice to the
adverse party the court may, in its discretion, order execution to issue even before the expiration of the time
to appeal, upon good reasons to be stated special order. If a record on appeal is filed thereafter, the motion
and the special order shall be included therein.

Since the issuance of an execution pending appeal is a matter which is properly within the discretion of the
court having jurisdiction, and such discretion may be interfered with only in of grave abuse thereof, the facts
and circumstances which moved the court a quo to act as it did and its own assessment of the equities the
case are entitled to considerable weight when grave abuse of discretion is alleged, particularly, when the
conclusions of said court are based on evidence that is not controverted. 9

Petitioner assails the order granting execution pending appeal the following grounds: (1) private respondent
did not present any proof as to the truthfulness of his allegations supportive of his motion for execution
pending appeal; and (2) no affidavit of merit or verification was attached by private respondent to his
motion. 10

It would appear that neither in this petition nor in the memorandum of petitioner is there any showing that
the facts alleged in the motion for execution were lacking in truth. The record is barren of any petitioners
attempt to refute the allegations contained in private respondents motion for execution pending appeal. 11

As noted in the memorandum of the private respondent, petitioners two-paged opposition even conclusively
corroborated private respondents subject motion by clearly admitting that since the issuance of the
preliminary injunction in July 1978, petitioner was no longer doing any visible operation of its business. 12
The records also show that a third-party claim dated 14 November 1986 was filed by Virginia Ong, treasurer
of Island Photo-Center, over the movables seized pursuant to the writ of execution issued on 29 October
1986.

The contention of petitioner as to the motions lack of verification is untenable. There is no requirement
under the Rules of Court that the motion for issuance of a writ of execution must be verified. 13

All the requisites provided for by Section 2, Rule 39 of the Rules of Court being present, this petition must
fail. That the action of respondent Judge could not correctly be characterized as a grave abuse of discretion
is obvious as it finds direct support in the applicable legal provisions.

We do not, however, agree with the claim of private respondent Rustico Claveria that the posting and
approval of a bond, by itself constitutes sufficient reason for the execution of a judgment pending appeal,
and negates any claim of abuse of discretion on the part of the trial court. cralawnad

Whatever doubts may have been generated by early decisions involving this matter, starting with Hacienda
Navarra Inc. v. Labrador, Et Al., G.R. No. L-45912, May 24, 1938, 65 Phil. 536, have been clarified in Roxas
v. CA, Et Al., G.R. No. 56960, January 28, 1988, 157 SCRA 370, thus: jgc:chanroble s.com.ph

"It is not intended obviously that execution pending appeal issue as a matter of course. Good reasons,
special, important, pressing reasons must exist to justify it; otherwise, instead of an instrument of solicitude
and justice, it may well become a tool of oppression and inequity. But to consider the mere posting of a
bond good reason would precisely make immediate execution of a judgment pending appeal routinary, the
rule rather than the exception. Judgments would be executed immediately, as a matter of course, once
rendered if all that the prevailing party needed to do was to post bond to answer for the damages that might
result therefrom. This is a situation, to repeat, neither contemplated, nor intended by law." 14

But the course of action taken by the lower court was actually in compliance with the express directive in
Section 4, Rule 39 of the Rules of Court, providing for the immediate execution of judgment rendered in
injunction cases notwithstanding the pendency of an appeal. For this, no special reason need even be
invoked. The trial court may, in its discretion, stay immediate execution or refuse to do so. 15
A complaint for unfair competition is basically a suit for "injunction and damages" (Section 29 in relation to
Sec. 23, Republic Act 166). Injunction, for the purpose of enjoining the unlawful competitor from proceeding
further, and damages, in order to allow the aggrieved party to recover the damages he has suffered by
reason the said unlawful competition. 16 And it has been held that an action for unfair competition with
prayer for an injunction, as in Civil Case No. 29674, partakes of the nature of an action for injunction within
the contemplation of Section 4 of Rule 39 of the Rules of Court. 17

With respect to the issue of the propriety of a special civil action for certiorari to assail an order for
execution pending appeal, this Court has held that: jgc:chanrobles.com .ph

"Although Section 1, Rule 65 of the Rules of Court provides that the special civil action of certiorarimay only
be invoked when there is no appeal, nor any plain, speedy and adequate remedy in the course of law this
rule is not without exception. The availability of the ordinary course of appeal does not constitute sufficient
ground to prevent a party from making use of the extraordinary remedy ofcertiorari where the appeal is not
an adequate remedy or equally beneficial, speedy and sufficient. It is the inadequacy not the mere
absence of all other legal remedies and the danger of failure of justice without the writ, that must usually
determine the propriety of certiorari." (Jaca v. Davao Lumber Co., L-25771, March 29, 1982, SCRA 107).

WHEREFORE, this petition for certiorari is DISMISSED and the temporary restraining order heretofore issued
in this case is hereby LIFTED. With costs against petitioner.

SO ORDERED.

Melencio-Herrera, Sarmiento and Regalado, JJ., concur.

Paras, J., No part. Son is partner of counsel for Petitioner.

Endnotes:

1. Rollo, p. 21-22.

2. Id., p. 24.

3. Rollo, pp. 61-62.

4. Id., p. 65.

5. Id., p. 68.

6. Id., p. 71.

7. Id., p. 170.

8. Id., p. 243.

9. Padilla v. CA, G.R. No. L-31569, September 28, 1973 SCRA 168.

10. Rollo, p. 5.

11. Lao v. Hon Mencias, Et Al., G.R. No. L-23554, November 25, 1567, 21 SCRA 1021.

12. Rollo, p. 212.

13. Lao v. Hon. Mencias, supra.

14. PNB v. Hon Puno, Et Al., G.R. No. 76018, February 10, 1989, 170 SCRA 229; Stronghold Insurance Co.,
Inc. v. CA, Et Al., G.R. 84979, November 6, 1989, 179 SCRA 117.
15. Reparations Commissions v. Hon. Morfe, Et Al., G.R. No. L- 25939, March 20, 1968, 22 SCRA 1177.

16. Universal Rubber Products, Inc. v. CA. G.R. No. L-30266, 29, 1984, 130 SCRA 104.

17. Converse Rubber Corp. v. Jacinto Rubber and Plastics Co., Inc., G.R. Nos. L-27425 and L-30505, April 28,
1980, 97 SCRA 158.