FIRST DIVISION

[G.R. No. L-38510. March 25, 1975.]

SPOUSES DOLORES MEDINA and MOISES BERNAL, Petitioners, v. THE HONORABLE NELLY L.
ROMERO VALDELLON OF THE COURT OF FIRST INSTANCE OF MALOLOS, BULACAN, SPOUSES
CIPRIANO VILLANUEVA and RUFINA PANGANIBAN, Respondents.

Ponciano H. Gupit (Citizen Legal Assistance Office), for Petitioners.

Rosendo G. Tansinsin, Jr. for Respondents.

SYNOPSIS

Respondent Judge dismissed petitioner’s action for recovery of possession of a parcel of land on the ground
that a land registration case between the same parties involving the same parcel of land is pending in
another branch of the same court. Petitioners assailed the trial court’s dismissal order and raised the
following legal issues for resolution of this Court: (a) whether or not the pendency of a land registration case
bars the institution of an action for recovery of possession; and in the negative, (b) whether or not the
respondent judge correctly dismissed the latter case in view of the pendency of the land registration case.
The Supreme Court annulled the questioned order and directed the court below to revive the complaint and
amended complaint and consolidate the trial of the two cases in one branch.

SYLLABUS

1. COURTS; POWER OF CONTEMPT; COUNSEL MAY BE HELD IN CONTEMPT OF COURT FOR DISRESPECTFUL
STATEMENT. — For making in his manifestation and/or comment a statement which the Court considered as
disrespectful, counsel for respondent was declared in contempt of court and suspended from the practice of
law for three months. However, on motion for reconsideration the Court reconsidered the order of
suspension and imposed instead a fine P300.00

2. ID.; COURT OF FIRST INSTANCE AS COURT LIMITED AND SPECIAL JURISDICTION; EXTENT THEREOF. —
Court of First Instance acting as land registration court has a limited and special jurisdiction confined to the
determination of the legality and propriety of the issue of title over the land subject matter of registration,
and it has no power to entertain issues of rightful possession and claim for damages emanating from
ownership.

3. ACTIONS; UNLAWFUL DETAINER DEFINED. — An action for unlawful detainer is defined as "withholding
by a person from another for not more than one year, of the possession of a land or building to which the
latter is entitled after the expiration or termination of the former’s right to hold possession by virtue of a
contract, express or implied."
cralaw virtua1aw li bra ry

4. ID.; ACTION FOR RECOVERY OF POSSESSION MAY BE FILED IN THE COURT OF FIRST INSTANCE
WITHOUT REGARD TO THE ONE YEAR PERIOD CONTEMPLATED IN RULE 70 OF THE RULES OF COURT. —
Where defendants withheld the possession of land from the plaintiffs for more than the one year period
contemplated in Rule 70 of the Rules of Court concerning actions for forcible entry and detainer, plaintiffs’
remedy is to initiate a plenary action for recovery of possession (accion publiciana) in the court of first
instance which can be filed before the expiration of the one year period, or thereafter, provided no action for
forcible entry and detainer had been commenced during that time in the inferior court.

5. ID.; DISMISSAL; DISMISSAL OF ACTION ON GROUND OF PENDENCY OF ANOTHER UNIDENTICAL ACTION

BETWEEN THE SAME PARTIES IS ERRONEOUS. — The dismissal of the action for recovery of possession
because there is pending in another branch of the same court a land registration case between the same
parties over the same parcel of land is precipitate; for while identity of parties exists, there is no identity of
cause of action, rights asserted, or relief prayed for in both cases, so that a judgment rendered in one case
is not res judicata for the other case. The rights sought to be enforced and the relief prayed for in the action
for recovery of possession are separate and distinct from those sought in the land registration case.

6. ID.; ID.; MERE PLEA OF TITLE OR OWNERSHIP NOT A GROUND FOR DISMISSING ACTION FOR
RECOVERY OF POSSESSION. — It is a fundamental principle in the law governing unlawful detainer
(including recovery of possession cases) that a mere plea of title or ownership over the disputed land by the
defendant cannot be used as a sound legal basis for dismissing an action for recovery of possession because
an action for recovery of possession can be maintained even against the very owner of the property.

7. ID.; JUDGMENT IN AN ACTION FOR RECOVERY OF POSSESSION IS NOT CONCLUSIVE AS TO QUESTION

OF OWNERSHIP. — An action for recovery of possession is totally distinct and different from action for
recovery of title or ownership and a judgment rendered in a case of recovery of possession is conclusive only

1
 on the question of possession and not that of ownership; hence, it does not bind the title or effect the
ownership of the land or building.

8. ID.; CONSOLIDATION; NATURE OF EVIDENCE AS GROUND THEREFOR. — While the issues raised in both
cases are not exactly identical, if the evidence involving the issues of possession and ownership over the
land are related and its presentation before one court would redound to a speedy disposition of the cases,
the consolidation of the trial of both cases may be ordered.

DECISION

ESGUERRA, J.:

Petition to review by certiorari the order dated October 23, 1973 of the Hon. Nelly L. Romero Valdellon,
Judge of the Court of First Instance of Bulacan, Branch I, which dismissed with costs against the plaintiffs its
Civil Case No. 4353-M, entitled "Spouses Dolores Medina and Moises Bernal, Plaintiffs, v. Spouses Cipriano
Villanueva and Rufina Panganiban, Defendants." cralaw virt ua1aw li bra ry

The complaint in Civil Case No. 4353-M of the Court of First Instance of Bulacan alleges that plaintiffs
(petitioners in this case) are the owners of a parcel of land situated at Bo. San Pascual, Hagonoy, Bulacan,
with an assessed value of P800.00 which was purchased sometime in April 1967 from Margarita Punzalan,
Rosal Punzalan, Quaquin Gaddi and Paulina Gaddi; "that as defendants are family friends of the plaintiffs,
defendants were allowed to remain in the premises and to construct their residential house, subject to the
condition that defendants will return unto the plaintiffs the premises upon demand" ; "that much to the
surprise of the plaintiffs-spouses, on demand, defendants-spouses refused and remain obstinate in their
refusal to surrender the property in question" ; that because of said defendants’ unjustified acts plaintiffs
had to institute action and incur damage of P500 as expenses for court litigation; that "the reasonable value
of the use of the premises is P100 a month, taking into consideration its commercial value" ; and prayed
that the defendants be ordered "to vacate the premises and surrender unto plaintiffs" the said property and
defendants he ordered to pay plaintiffs "the amount of P500 as incidental expenses and the amount of P100
a month from the filing of this action to the time they surrender its possession to the plaintiffs."

A subsequent motion to amend and admit amended complaint was filed by plaintiffs, the amendment
consisting of: jgc:chan roble s.com. ph

"4. That as defendants-spouses are family friends of the plaintiffs, they (defendants) were allowed to build a
small house in the premises in April 1967, subject to the condition that they will return to the plaintiffs the
premises in 1969;

"5. That much to the surprise of the plaintiffs-spouses on demand, defendants-spouses refused and remains
obstinate in their refusal to surrender the property in question claiming that they are the owners thereof;"

A motion to dismiss the complaint and an opposition to the motion to amend and admit the amended
complaint filed by the defendants (respondents in this case) preceded the respondent court’s questioned
order of October 30, 1973, that dismissed the complaint on the ground of "there being another case pending
between the same parties over the same property, namely Land Registration Case No. 2814 of this Court."
Petitioners’ motion for reconsideration was denied by respondent court in its order dated February 8, 1974.

The only legal issues raised are: jgc:chan roble s.com.p h

"Whether or not the pendency of a land registration case will bar the institution of an action for the recovery
of possession; and in the negative, whether or not the respondent judge can be countenanced in her act of
dismissing the latter case in view of the pendency of the land registration case." cralaw virt ua1aw lib ra ry

When this Court (First Division) on May 10, 1974, resolved "without giving due course to the petition, to
require the respondents to comment thereon, within 10 days from notice, and both parties to state whether
or not there is any valid reason why Civil Case No. 4353-M of the respondent court should not be tried and
decided jointly with Land Registration Case No. 2814 of Branch VI of said court, considering that the claim of
the plaintiffs in Civil Case No. 4353-M (herein petitioners) for damages due to alleged illegal occupancy of
the land involved by the defendants (respondents herein) may not be properly passed upon and adjudicated
in the land registration case, where only the question of title to the property sought to be registered will be
decided between the applicants and oppositors," counsel for respondents, Rosendo G. Tansinsin Jr., included
in his Manifestation and/or Comment, dated May 20, 1974, the following statement: "nevertheless, from the
reading of the resolution aforequoted, one will certainly have no doubt that there is no need for the
respondents to make any comment on the matter as the same will be an exercise of futility since this
Honorable Court has not only given due course to the petition, but has actually decided the same, . . ." By
reason of the disrespectful tone of the aforesaid statement, said counsel was required by this Court’s (First
Division) resolution of May 29, 1974, to show cause why he should not be dealt with for contempt of court.

The petitioners by way of compliance with this Court’s aforementioned resolution of May 10, 1974,
requested that the order of October 30, 1973 of the respondent court be set aside and that the Court of First
Instance of Bulacan (Branch I and VI) be ordered to consolidate, try and decide Civil Case No. 4353-M of
Branch I and L. R. C. Case No. 2814 of Branch VI.

2
 The explanation submitted by respondents’ counsel, although it contained an apology, was not considered
satisfactory by this Court. Hence in its resolution of July 10, 1974, Atty. Rosendo G. Tansinsin Jr. was
declared in contempt of court and suspended from the practice of law for a period of three months. His
subsequent motion for reconsideration and personal plea for leniency, sympathy and understanding, coupled
with his repeated apology and regret and the fact that his act appeared to be his first offense of that nature,
made this Court reconsider the suspension from the practice of law and, instead, ordered him to pay a fine
of P300.00 which he has paid.

On the principal issues raised in this case, We have no doubt that the nature of the action embodied in the
complaint in Civil Case No. 4353-M is one for recovery of possession brought before the Court of First
Instance by the alleged owners of a piece of land against the defendants who were supposed to have
unlawfully continued in possession since 1969 when they were supposed to return it to plaintiffs, plus
damages. That the action is not for unlawful detainer contemplated in Rule 70 of the Rules of Court, which
falls under the exclusive original jurisdiction of the city courts or municipal courts, is very apparent because
an action of unlawful detainer is defined as "withholding by a person from another for not more than one
year of the possession of a land or building to which the latter is entitled after the expiration or termination
of the former’s right to hold possession by virtue of a contract express or implied." (Tenorio v. Gomba 81
Phil. 54; Dikit v. Yno 89 Phil. 44) On the basis of the allegations of the complaint in Civil Case No. 4363-M,
the defendants withheld possession from the plaintiffs since 1969 or very much more than the one year
period contemplated in unlawful detainer cases at the time the complaint was filed in July of 1973. Not all
cases of dispossession are covered by Rule 70 of the Rules of Court (Forcible Entry and Unlawful Detainer
cases) because whenever the owner of property is dispossessed by any other means than those mentioned
in the aforementioned rule, he may initiate and maintain a plenary action to recover possession in the Court
of First Instance, and it is not necessary for him to wait until the expiration of one year before commencing
such action. (Gumiran v. Gumiran 21 Phil. 174) It may also be brought after the expiration of said period of
one year, if no action had been initiated for forcible entry and detainer during that time in the inferior court.
This plenary action to recover possession (accion publiciana) must be instituted in the Court of First Instance
as was done in this case.

The respondent court’s action in dismissing Civil Case No. 4353-M on the ground that there is another
pending case (L.R.C. No. 2814 of Branch VI of the same court) between the same parties over the same
property is to Our mind rather precipitate, for We find sufficient merit in petitioners’ contention that the
rights sought to be enforced and the reliefs prayed for in Civil Case 4353-M (recovery of possession and
damages) are entirely separate and distinct from that sought in L. R. C. Case No. 2814 (where petitioners as
oppositors are seeking the exclusion of their land from that of private respondents’ claim of title over a
bigger tract of land). It is likewise true that the Court of First Instance of Bulacan (Branch VI) acting as a
land registration court has a limited and special jurisdiction confined to the determination of the legality and
propriety of the issue of title over the land subject matter of registration, and it has no power to entertain
issues of rightful possession and claim for damages emanating from ownership. It is a fundamental principle
in the law governing unlawful detainer cases (including recovery of possession cases) that a mere plea of
title or ownership over the disputed land by the defendant cannot be used as a sound legal basis for
dismissing an action for recovery of possession because an action for recovery of possession can be
maintained even against the very owner of the property. (Prado v. Calpo et al, G. R. No. L-19379, April 30,
1964) In the case at bar, there is not even a plea of title on the part of private respondents over the
disputed property but a mere allegation that there is another action (L. R. C. No. 2814 pending in Branch VI
of that court) for registration of title to that land the possession of which is being recovered by petitioners in
Civil Case No. 4353-M. An action for recovery of possession is totally distinct and different from an action for
recovery of title or ownership. In fact, a judgment rendered in a case of recovery of possession is conclusive
only on the question of possession and not that of ownership. It does not in any way bind the title or affect
the ownership of the land or building. (Sec. 7, Rule 70, Revised Rules of Court).

The inevitable conclusion from the foregoing is that Civil Case No. 4353-M (for recovery of possession and
damages) was arbitrarily and erroneously dismissed on the basis of the alleged pendency of another action
(L. R. C. No. 2814 pending in Branch VI of the same court), because while identity of parties may be
established in both cases, there is no identity of cause of action or of rights asserted and relief prayed for,
so that judgment which may be rendered in one case would not necessarily result in res judicata for the
other case.

We cannot see any sufficient reason for any of the parties in this case to object to the consolidation of the
trial of both cases (L. R. C. Case No. 2814 and Civil Case No. 4353-M), since the evidence that may be
presented by the parties involving possession and ownership of the disputed parcel of land may facilitate an
expeditious termination of both cases. While the issues raised in both cases are not exactly identical, the
evidence involving the issues of possession and ownership over the same land must be related and its
presentation before one court of justice would redound to a speedy disposition of this litigation.

WHEREFORE, the respondent court’s orders of October 30, 1973, and February 8, 1974, are hereby declared
null and void and set aside; the complaint and amended complaint in Civil Case No. 4353-M revived; both
the respondent Judge and the Presiding Judge, Branch VI, of the Court of First Instance of Bulacan, being
directed to consolidate the trial of L. R. C. No. 2814 and Civil Case No. 4353-M in one branch of that court.
Costs against private respondents.

SO ORDERED.

Makalintal, C.J., Castro, Teehankee and Makasiar, JJ., concur.

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 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-9989 March 13, 1918

EDUARDO CUAYCONG, ET AL., plaintiffs-appellees,

vs.
RAMONA BENEDICTO, ET AL., defendants-appellants.

Ruperto Montinola and Aurelio Montinola for appellants.

No appearance for appellees.

FISHER, J.:

The issues in this case relate to the right of plaintiffs to make use of two roads existing on the
Hacienda Toreno, a tract of land in the municipality of Victorias, Negros Occidental, the property of
the defendants, Blasa Benedicto and Ramona Benedicto. One of these roads is referred to in the
proceedings as the Nanca-Victorias road and the other as the Dacuman — Toreno road. The Court
of First Instance held that those of the plaintiffs who claimed to be entitled to make use of the
Dacuman — Toreno road had failed to establish the asserted right, and dismissed the action as to
them. From this decision they appealed to this court but, their brief not having been filed within the
time prescribed by the rules, their appeal was dismissed, on motion of defendants, by resolution
dated February 14, 1916. Consequently, the issues presented on this appeal are limited to those
which relate to the rights of the parties with respect to the Nanca-Victorias road, and the
determination of the correctness of the decision of the court concerning that part of the controversy
submitted to its decision.

The allegations in the complaint with respect to the Nanca-Victorias road are that the appellees,
Eduardo Cuaycong, Lino Cuaycong, and Eulalio Dolor, are the owners of a group of haciendas
situated between the southern boundary of the Hacienda Toreno and the barrio of Nanca, of the
municipality of Seravia, and that the appellees Silverio Ginoo, Gervasio Ascalon, and Juan
Ledesma, are the lessees of part of said haciendas; that more than twenty years the appellees and
their predecessors in interest have made use of the Nanca-Victorias road, which crosses the
Hacienda Toreno, openly, publicly, and continiously, with the knowledge of the owners of the said
hacienda, for the purpose of conveying the products of their haciendas to the town of Victorias and
to the landing place there situated, and for the purpose of transporting supplies from those points to
their haciendas, making use of the said road by means of carts, carabaos, and other usual means of
transportation; that there is no outlet to a public road from the hacienda occupied by these plaintiffs,
the only road and way by which the products of the plaintiffs' property can be taken to the town of
Victorias and to the landing place there being across the Hacienda Toreno by the road marked on
the plan attached to the complaint; that on the fifteenth day of November, 1912, the defendants
closed the road in question at the point at which it crosses the Hacienda Toreno, and refused to
permit plaintiffs to continue using it; that plaintiffs were about to commence to grind their crop of
sugar cane, and that, if prevented from transporting their sugar across the Hacienda Toreno to their
point of embarkation, would suffer damages difficult to estimate. Upon these averments of fact the
plaintiffs prayed for a judgment that they are entitled to use the road in question as they have been
using it in the past, and that a perpetual injunction be issued against plaintiffs restraining them from
impending such use. Upon the filing of the complaint, plaintiffs moved the court to issue a
preliminary injunction restraining defendants from interfering with the use of the road during the
pendency of the suit, which motion was granted by the court.

Defendants in their answer put in issue all the special averments of the complaint, as above set
forth, and by way of counterclaim and special defense, averred that the road crossing the Hacienda
Toreno, over which plaintiffs claim the right of passage, is the private property of defendants; and,
further, that they have not refused plaintiffs permission to pass over this road but have required them
to pay toll for the privilege of doing so. Defendants also claimed damages for the use of the road by
plaintiffs during the pendency of the suit, alleging that the preliminary injunction had been
improvidently issued upon false statements contained in the verified complaint filed by plaintiffs.

4
The case was tried in July, 1913. The court on December 8, 1913, rendered judgment, dismissing
the complaint with respect to the plaintiffs Felix Suarez, Probo Jereza, Enrique Azcona, and Melecio
Pido, these being the plaintiffs who claimed the right to use the Dacuman — Toreno road. With
respect to the Nanca-Victorias road, the court held that it was a public highway over which the public
had acquired a right of use by immemorial prescription, and ordered the issuance of a perpetual
injunction against plaintiffs, restraining them from interfering in any manner with the use of the said
road.

The conclusion of the court with respect to the facts affecting the Nanca-Victorias road are as
follows:

Turning to a consideration of the evidence relative to the Nanca-Victorias road we find

incontestable proof that it has been in existence for at least forty years. That the hacenderos
located in the southwestern section of Victorias and the public generally passed over it freely
and that it was used for all purposes of transportation of farm produce, animals, etc. and by
pedestrians as well as carromatas and other conveyances without break or interruption until
two or three years ago when the defendants announced that the road was private and that
those who wished to pass over it with sugar carts would be obliged to pay a toll of ten
centavos — all other vehicles, it appears, were permitted to pass free charge. This
arrangement seems to have existed during the years of 1911 and 1912 and part of 1913, the
money being collected apparently from some hacenderos and not from others. There is
some reason to believe from the evidence presented by defendants themselves that the
practice of making these payments to hacienda 'Toreno' originated in an attempt to raise a
fund for the repair of the road. There is no evidence that any other hacenderos between
Nanca and Victorias or any other person made any attempt to close the road or to collect toll.
On the contrary the road appears to have been repaired by the hacenderos when it needed
repairing and everyone used it on equal terms until the defendants in 1910 or 1911
interposed the objection that the road in dispute was private. This we think is a fair deduction
from the evidence and although it is asserted that toll was collected at an earlier date by the
late Leon Montinola, brother of the defendant Ruperto Montinola, there is no tangible
evidence that this was so and that toll has been paid only during the years of 1911, 1912,
and part of 1913.

The question presented by the assignment of error are in effect:

(a) Is the Nanca-Victorias road at the point at which it traverses the Hacienda Toreno a public
highway or not?

(b) If it be held that the road in question is not a public highway, have plaintiffs proven their
acquisition of an easement of way over the Hacienda Toreno at the point traversed by the road in
question?

The trial judge, in holding that the road in question is public, bases in conclusion upon the fact, which
he deems to have been proven, that the road has been in existence "from time immemorial," and
had been "continiously used as a public road . . . and open to public as such for thirty or forty years .
. . until . . . the defendants undertook to claim it as private and to collect toll for the passage of carts."
(Bill of Exceptions, p. 56.) There is no doubt that for the past thirty or forty years a road has existed
between the former site of the town of Victorias and the barrio of Nanca, of the municipality of
Seravia, and that this road crosses defendants' hacienda. It is also true that during this period the
plaintiffs and their predecessors in the ownership of the hacienda now held by them have made use
of this road for the purpose of going and coming from their haciendas to the town of Victorias; but
the question is whether this use was limited to the plaintiffs, and their tenants and employees, or
whether it was, as held by the lower court, a use enjoyed by the public in general. Plaintiffs produced
only two witnesses, Segundo de Leon (stet. notes, pp. 21-22) and Eduardo Cuaycong, (stet. notes,
pp. 27-33) to testify as regards the use of the Nanca-Victorias road. Several other witnesses testified
on behalf of plaintiffs, but their testimony relates to the Dacuman — Toreno road, which is not
involved in this appeal. We have carefully read the testimony of the witnesses Leon and Cuaycong,
given upon their direct and cross examination, but we have been unable to find that either of them
has testified that the road in question was ever used by the public in general. These witnesses
testified with regard to the use of the road by the present and former owners and occupants of the
estates of Bacayan, Esperanza, Alcaigan, Pusot, and Dolores for the transportation of the products
of these estates to the town of Victorias, and of supplies and agricultural implements from Victorias
to the haciendas, but neither of them testified expressly that any other use had been made of said
road. Nevertheless, it may be reasonably inferred from the testimony of these witnesses that all

5
persons having occasion to travel between Victorias and the haciendas of Bacayan, Esperanza,
Alacaigan, Pusot, and Dolores, whether or not they were owners, tenants, or employees of said
estates, made use of the road now in dispute, crossing the Hacienda Toreno, and to this limited
extent it may be said that the public made use of the road, but there is nothing in the evidence to
indicate that the so — called public use extended beyond this.

Apart from the fact that there is no direct evidence to support the finding of the court concerning the
general public use of the road in dispute, the record contains data strongly tending to show that
when the complaint was filed plaintiffs did not contend that the road was a public highway, but
merely contended that they had acquired by prescription an easement of way across the Hacienda
Toreno. For example, the action is entitled an "action concerning a right of away." (Bill of Exceptions,
pp. 64 and 65.) It is not averred in the complaint that the road in question was used by the public. On
the contrary, it is averred that it was used by the plaintiffs and their predecessors. The averment in
paragraph 8 of the complaint that the plaintiffs have no other "outlet to a public road" than that which
they have been accustomed to used by going across the defendants' hacienda for the purpose of
going to the town of Victorias also shows that when they commenced this action they had in mind
the provisions of articles 564, et seq. of the Civil Code, which relate to the method of establishing the
compulsory easement of way. The owners of an existing easement, as well as those whose
properties are adjacent with a public road, have no occasion to invoke these provisions of the Code,
which relate to the creation of new rights, and not the enforcement of rights already in existence.

It is true in the opening statement made to the court, counsel for plaintiffs, who was not the same
attorney by whom the complaint was signed, stated that plaintiffs contend that the road in question is
public, but as no evidence was introduced tending to establish this contention concerning the Nanca
— Victorias road, counsel for defendants had no occasion to object upon the ground that such
testimony was not relevant to the averments of the complaint. No evidence was taken to indicate
that at any time since the road in question has been in existence any part of the expense of its
upkeep has been defrayed by the general government, the province, or the municipality. The trial
judge said upon this subject:

It is true that whatever repairs were made on the road were made irregularly. The
municipality of Victorias had no funds to devote to the construction and repair of roads, and
the upkeep of the road depending entirely therefore on the initiative of the persons who used
it, was attended to only at such times as repairs were absolutely necessary. (Bill of
Exceptions, p. 49.)

The court also held that it appears from the government grant issued in 1885 to the original owner of
the hacienda adjacent to the Hacienda Toreno on its western boundary, that the Nanca-Victorias
road at that time separated that estate from the Jalbuena Hacienda, and that these facts constitute
"circumstantial evidence that the road was in existence in 1885." We have examined the document
to which the court refers, and we agree that the road in question existed in 1885; but we do not
believe that the document in question proves that the road was public highway.

Another circumstance established by the evidence, and which is some importance in the
determination of this issue, is that although the defendants closed the Nanca-Victorias road in the
month of February, 1911, and since that time have collected toll from persons passing over it with
carts loaded with sugar, including those belonging to several of the plaintiffs, nothing was done by
them to prevent the continuation of this restriction until December, 1912, when this action was
commenced. It is natural to assume that if plaintiffs had considered that the road in question was
public, they would have protested immediately against the action of the defendants, and would have
either commenced a civil action, as they subsequently did, or would have brought about a
prosecution under section 16 of Act No. 1511.

Upon the evidence taken and admissions contained in the pleadings and those made during the
course of the trial we consider that the following findings are warranted:

1. The town of Victorias has always been the shipping point of the products of the Hacienda Toreno,
and of the haciendas of appellees, as well as the place from which supplies were brought to those
properties.

2. For thirty or forty years before the commencement of the suit a wagon road, herein called the
Nanca-Victorias road, has been in existence, connecting the haciendas of appellees with the town of
Victorias, and this road traverses the property of defendants. Since the removal of the town of

6
Victorias to a new site the Nanca-Victorias road has been used by appellees in travelling between
their properties and the provincial road which crosses the Hacienda Toreno from east to west.

3. No public funds have at any time been expended on the construction or upkeep of the Nanca-
Victorias road, but from time to time work has been done on it by the laborers employed by the
present and former owners of the Hacienda Toreno and the haciendas owned by the appellees and
their predecessors in title.

4. The Nanca-Victorias wagon road, including that part of it which crosses the Hacienda Toreno, has
for thirty-five or forty years been used by the appellees and their predecessors in title for the
transportation, by the usual means, of the products of their estates to their shipping points in or near
the town of Victorias, and the transportation to their estates of all supplies required by them, and has
been used by all persons having occasion to travel to and from all or any of the estates now owned
by the appellees.

5. The use of the Nanca-Victorias road in the manner and by the person above mentioned was
permitted without objection by the owners of the Hacienda Toreno until the year 1911, when they
closed it, and began charging a toll of 5 centavos for each cart which passed over the road, including
carts belonging to the appellants, until restrained from continuing to do so by the preliminary
injunction granted in this case.

6. The Nanca-Victorias road constitutes the only outlet from the estates of appellants to the nearest
public road which is the provincial road which crosses the Hacienda Toreno from east to west.

Upon these facts the questions of law to be decided are:

(a) Is the Nanca-Victorias road a public highway?

(b) If the Nanca-Victoria road, or that part of it which crosses the Hacienda Toreno, is not a public
highway, is it subject to a private easement of way in favor of the appellees?

The defendants are the owners of the Hacienda Toreno under a Torrens title issued in accordance
with the Land Registration Act, conferring to them its absolute ownership, subject only to the
limitations of paragraph four of section 39 of said Act. It is admitted that there is no annotation on the
certificate of title regarding the road here in question, either as a "public road" or as a "private way
established by law," and, therefore, the questions presented by this appeal are to be determined
precisely as they would be had the Hacienda Toreno not been brought under the operation of the
Land Registration Act. The plaintiffs being the owners of the property in question, the presumption of
law is that it is free from any lien or encumbrance whatever, and the burden therefore rests upon
plaintiffs to establish the contrary. As this court said in case of Fabie vs. Lichauco and the children of
Francisco L. Roxas (11 Phil. Rep., 14):

It is settled of law that a property is assumed to be free from all encumbrance unless the
contrary is proved.

There is admittedly no evidence to show that the land occupied by the road here in question was any
time conveyed to the general government or any of its political subdivisions by the present or any of
the former owners of the Hacienda Toreno. There is no evidence, even remotely, tending to show
that the road existed prior to the time when the property now known as the Hacienda Toreno passed
from the State into private ownership. The record fails to disclose any evidence whatever tending to
show that the Government has at any time asserted any right or title in or to the land occupied by the
road, or that it has incurred any expense whatever in its upkeep or construction. The Civil Code
defines as public roads those which are constructed by the State (art. 339), and as provincial and
town roads those "the expense of which is borne by such towns or provinces." (Civil Code, art. 344.)
While it is not contended that this definition is exclusive, it does show that during the Spanish
regime, under normal conditions, roads which were public were maintained at the public expense,
and that the fact that at no time was any expense incurred by the Government with respect to the
road here in question tends strongly to support the contention of the defendants that it is private way.

During the Spanish regime the law required each able to bodied citizen not within one of the
exempted classes to work a certain number of days in each year, his labor to be devoted to
"services of general utility" to the municipality of his residence. (Royal Decree of July 11, 1883, art.
5.) Under this Decree and the Regulations for its enforcement (Berriz, vol. 11, 258) the greater part

7
of the work on the public road of the Islands was accomplished. Had the road here in question been
a public way, it is reasonable to assume that the polistas of the town of Victorias would have been
employed in maintaining it. It is most significant that no mention is made in the testimony of the
plaintiffs' witnesses of any work of this character having been done on the road at any time,
particularly in view of the fact that their attention was drawn to this point. (Stet. note, pp. 8, 10, 11,
12, 13 and 14.)

The evidence shows that the repairs were made by the owners of the estates benefited by the road,
and by their laborers, as a pure voluntary act for their own convenience and interest. There being no
evidence of a direct grant to the government of the land occupied by the road in question or that any
Government funds or labor were expended upon it, the question presents itself whether the use to
which the road has been put was such as to justify the conclusion of the lower court that it has
become public property. There being no evidence that the original use of the road by plaintiffs'
predecessors was based upon any grant of the fee to the road or of an easement of way, or that it
began under the assertion of a right on their part, the presumption must be that the origin of the use
was the mere tolerance or license of the owners of the estates affected.

This being so, has that merely permissive use been converted into a title vested in the public at
large, or in the plaintiffs by reason of their ownership of the land beneficially affected by the use?

Had it been shown that the road had been maintained at the public expense, with the acquiescence
of the owners of the estates crossed by it, this would indicate such adverse possession by the
government as in course of time would ripen into title or warrant the presumption of a grant or of a
dedication. But in this case there is no such evidence, and the claims of plaintiffs, whether regarded
as members of the public asserting a right to use the road as such, or as persons claiming a private
easement of way over the land of another must be regarded as resting upon the mere fact of user.

If the owner of a tract of land, to accommodate his neighbors or the public in general, permits them
to cross his property, it is reasonable to suppose that it is not his intention, in so doing, to divest
himself of the ownership of the land so used, or to establish an easement upon it and that the
persons to whom such permission, tacit or express, is granted, do not regard their privilege of use as
being based upon an essentially revocable license. If the use continues for a long period of time, no
change being made in the relations of the parties by any express or implied agreement, does the
owner of the property affected lose his right of revocation? Or, putting the same question in another
form, does the mere permissive use ripen into title by prescription?

It is a fundamental principle of the law in this jurisdiction concerning the possession of real property
that such possession is not affected by acts of a possessory character which are "merely tolerated"
by the possessor, or which are due to his license (Civil Code, arts. 444 and 1942). This principle is
applicable not only with respect to the prescription of the dominium as a whole, but to the
prescription of right in rem. In the case of Cortes vs. Palanca Yu Tibo (2 Phil. Rep., 24, 38), the
Court said:

The provision of article 1942 of the Civil Code to the effect that acts which are merely
tolerated produce no effect with respect to possession is applicable as much to the
prescription of real rights as to the prescription of the fee, it being a glaring and self-evident
error to affirm the contrary, as does the appellant in his motion papers. Possession is the
fundamental basis of the prescription. Without it no kind of prescription is possible, not even
the extraordinary. Consequently, if acts of mere tolerance produce no effect with respect to
possession, as that article provides, in conformity with article 444 of the same Code, it is
evident that they can produce no effect with respect to prescription, whether ordinary or
extraordinary. This is true whether the prescriptive acquisition be of a fee or of real rights, for
the same reason holds in one and the other case; that is, that there has been no true
possession in the legal sense of the word. (See also Ayala de Roxas vs. Maglonso, 8 Phil
Rep., 745; Municipality of Nueva Caceres vs. Director of Lands and Roman Catholic Bishop
of Nueva Caceres, 24 Phil. Rep., 485.)

Possession, under the Civil Code, to constitute the foundation of a prescriptive right, must be
possession under claim of title (en concepto de dueno), or use the common law equivalent of the
term, it must be adverse. Acts of a possessory character performed by one who holds by mere
tolerance of the owner are clearly not en concepto de dueño, and such possessory acts, no matter
how long so continued, do not start the running of the period of prescription.

8
A similar question was presented in the case of the Roman Catholic Archbishop of Manila vs. Roxas
(22 Phil. Rep., 450), in which case it appeared that Roxas, the owner of the Hacienda de San Pedro
Macati, claimed a right of way across the property of the church to Calle Tejeron, a public street of
the town of San Pedro Macati. The proof showed that the road in question had been used by the
tenants of the Hacienda de San Pedro Macati for the passage of carts in coming and leaving the
hacienda "from time immemorial," and further that the road had been used for time out of mind, not
only by the tenants of the hacienda but by many other people in going and coming from a church
half-way between the boundary line of the hacienda and Calle Tejeron. The court held that the facts
did not give rise to a prescriptive right of easement in favor of the owner of the hacienda, upon the
ground that such use "is to be regarded as permissive and under an implied license, and not
adverse. Such a use is not inconsistent with the only use which the proprietor thought fit to make of
the land, and until the appellee thinks proper to inclose it, such use is not adverse and will not
preclude it from enclosing the land when other views of its interest render it proper to do so. And
though an adjacent proprietor may make such use of the open land more frequently than another,
yet the same rule will apply unless there be some decisive act indicating a separate and exclusive
use under a claim of right. A different doctrine would have a tendency to destroy all neighborhood
accommodations in the way of travel; for if it were once understood that a man, by allowing his
neighbor to pass through his farm without objection over the pass-way which he used himself, would
thereby, after the lapse of time, confer a right on such neighbor to require the pass-way to be kept
open for his benefit and enjoyment, a prohibition against all such travel would immediately ensue."

The decisions of the supreme court of Louisiana, a State whose jurisdiction is based, as is our own,
upon the Roman Law, and whose Civil Code is taken, as is our own,. very largely from the Code of
Napoleon, are particularly persuasive in matters of this character. In the case of Torres vs. Fargoust
(37 La. Ann., 497), cited by appellants in their brief, in which the issues were very similar to those of
the present case, the court held that—

The mere fact that for thirty or forty years the public was permitted to pass over this ground
would not of itself constitute the place a locus publicus . . . dedication must be shown by
evidence so conclusive as to exclude all idea of private ownership; . . . such dedication
cannot be inferred from ere user alone; . . . no one is presumed to give away his property.
The burden is on him who avers a divestiture of ownership to prove it clearly.

We are, therefore, of the opinion, and so hold, that upon the facts established by the evidence it
does not appear that the road in question is a public road or way. We are also of the opinion that
plaintiffs have failed to show that they have acquired by prescription a private right of passage over
the lands of defendants. The supreme court of Spain has decided that under the law in force before
the enactment of the Civil Code, the easement of way was discontinous, and that while such an
easement might be acquired by prescription, it must be used in good faith, in the belief of the
existence of the right, and such user must have been continuous from time immemorial. (Judgment
of December 15, 1882.) In the appealed decision the court below says that the plaintiffs and their
predecessors made use of the road in question "from time immemorial," but there is no evidence
whatever in the record to sup[port this finding, although it is true that the evidence shows the
existence of the road and its use by the plaintiffs and their predecessors for thirty-five or forty years.
Speaking of the evidence required under the present Code of Civil Procedure to show immemorial
use of an easement, this court said in the case of Ayal de Roxas vs. Case (8 Phil. Rep., 197, 198):

Third Partida in title 31, law 15 . . . says that discontinues servitudes . . . must be proved by
usage or a term so long that men can not remember its commencement. . . . In many
judgments the supreme court of Spain has refused to accept proof of any definite number of
years as a satisfaction of this requirement of the law. . . . We are of the opinion that in order
to establish a right of prescription [title of prescription based upon use from time immemorial]
something more required than memory of living witnesses. Whether this something should
be the declaration of persons long dead, repeated by those who testify, as exacted by the
Spanish law, or should be the common reputation of ownership recognized by the Code of
Procedure, it is unnecessary for us to decide. On either theory the appellant has failed in his
proof . . . .

The same thing may be said in this case. Witnesses have testified that they have known the road for
a certain period of years, beginning at a time prior to the enactment of the Civil Code, but no
evidence has been made to prove immemorial use by either of the means of proof mentioned in this
decision cited, nor is immemorial user averred in the complaint as the basis of the right. It is evident,
therefore, that no vested right by user from time immemorial had been acquired by plaintiffs at the
time the Civil Code took effect. Under that Code (art 539) no discontinuous easement could be

9
acquired by prescription in any event. Assuming, without deciding, that this rule has been changed
by the provisions of the present Code of Civil Procedure relating to prescription, and that since its
enactment discontinuous easement may be required by prescription, it is clear that this would not
avail plaintiffs. The Code of Civil Procedure went into effect on October 1, 1901. The term of
prescription for the acquisition of rights in real estate is fixed by the Code (sec. 41) at ten years. The
evidence shows that in February, 1911, before the expiration of the term of ten years since the time
the Code of Civil Procedure took effect, the defendants interrupted the use of the road by the
plaintiffs by constructing and maintaining a toll gate on it and collecting toll from persons making use
of it with carts and continued to do so until they were enjoined by the granting of the preliminary
injunction by the trial court in December, 1912. Our conclusion is, therefore, that the plaintiffs have
not acquired by prescription a right to an easement of way over the defendant's property; that their
use of the Nanca-Victorias road across the Hacienda Toreno was due merely to the tacit license and
tolerance of the defendants and their predecessors in title; that license was essentially revokable;
and that, therefore, the defendants were within their rights when they closed the road in 1911.

While in the allegations from the plaintiffs' complaint it might be inferred that it was their purpose to
seek to impose upon the defendants the easement to which arts. 564 et seq. of the Civil Code relate,
that purpose was evidently abandoned, and the case was tried upon a wholly different theory. Proof
was offered to show that the right of passage across defendants' land is necessary to enable
plaintiffs to get their products to market, but there was no offer on their part to pay defendants the
indemnity required by section 564.

For the reasons stated the judgment of the court below is reversed, the injunction issued against
defendants is allowed on this appeal. So ordered.

Arellano, C.J., Torres, Araullo, Street, Malcolm, and Avanceña, JJ., concur.

Separate Opinions

JOHNSON, J., concur.

Judgment reversed; injunction dissolved, and action dismissed.

10
 EN BANC

[G.R. No. 4452. October 1, 1908. ]

JUANA PICHAY, Plaintiff-Appellee, v. EULALIO QUEROL, ET AL., Defendants-Appellants.

Evaristo Singson for Appellants.

Jose M. del Valle and Lucas Paredes for Appellee.

SYLLABUS

1. PARTITION; EFFECT UPON USUFRUCTUARY RIGHTS. — A partition made by the owners of land is binding
upon a person who has a usufructuary right in an undivided part of the land, although the latter took no part
in the partition of the property.

2. PLEADING AND PRACTICE; BILL OF EXCEPTION; REVIEW. — Plaintiff excepted to the judgment, but
presented no bill of exceptions. Held, That, in the absence of such a bill, the errors assigned could not be
discussed. (Naval v. Benavides, 8 Phil. Rep., 250; Puruganan v. Martin, 8 Phil. Rep., 519; Ullmann &.
Ullmann & Co., 10 Phil. Rep., 459.)

DECISION

WILLARD, J. :

From the admissions made in the pleadings, and from the facts agreed upon in the court below, it appears
that the plaintiff, Juana Pichay, in April, 1905, conveyed to the defendants an undivided one-third interest in
twenty-five parcels of land situated in the Province of Ilocos Sur, as payment of a debt of P1,500 which she
owed them. The contract by which this conveyance was made contained the following clause: jgc:chan roble s.com.p h

"Third. The one-third part of these lands belongs to me, it being my share in the inheritance left by my
deceased parents; but I have requested my said creditors to allow me to enjoy the usufruct of the same
until my death, notwithstanding the fact that I have conveyed the said lands to them in payment of my
debt, and I bind myself not to sell. mortgage, or leave the said lands as inheritance to any person." cralaw virtua1aw l ibra ry

The defendants and appellants claim that this clause above quoted gave plaintiff no right of usufruct in the
land, saying that it appears that she only asked for this right and it does not appear that the defendants
gave it to her. This contention can not be sustained. The only reason for inserting this clause in the contract
was for the purpose of securing to the plaintiff the right which is therein set out. The form of the words used
is not sufficient to defeat this purpose.

On the 10th of August, 1905, the owners of the twenty-five parcels of land made a partition thereof among
themselves, in which the plaintiff took no part, and in this partition certain specific tracts of land were
assigned to the defendants as the third to which they were entitled by reason of the conveyance from the
plaintiff to them; They have been in possession of the tracts so assigned to them in the partition since the
date thereof, and are now in such possession, and have refused to recognize in the plaintiff any right of
usufruct therein.

In February, 1907, the plaintiff brought this action against the defendants, asking that it be declared that
she had a right of usufruct in a third of the twenty-five parcels of land; that she had the right to the
administration of all of the land, and that the appellees pay to her the rents which they had received during
the time of her dispossession.

The court rendered the following judgment: jgc:c hanro bles. com.ph

"In view of the allegations and evidence adduced by the parties, the court concludes: (1) That all the lands
described in the complaint be delivered to Juana Pichay for administration; (2) that Juana Pichay has a right
of usufruct in a third part of the said lands until her death; (3) that the partition of the said lands, made by
the coowners of Juana Pichay can not affect the latter; (4) Eulalio Querol is hereby directed to deliver to
Juana Pichay two crops from the third part of the lands in question, or the equivalent thereof, taking as a
basis the present crop — that is, the crop to be harvested within a short time — and (5) Juana Pichay is
sentenced to indemnify Eulalio Querol in the sum of P300 on account of the past suit, without costs." cralaw virt ua1aw lib ra ry

The first proposition contained in this judgment finds no support in the record, and there is nothing therein
to show that the plaintiff had any acquired right to the administration of all the lands described in the

11
complaint.

The second proposition finds its support in the record if it is limited to the lands which were assigned to the
defendants in the partition.

The third proposition can not be supported. Article 490 of the Civil Code is as follows: jgc:chan roble s.com.p h

"ART. 490. The usufructuary of part of a thing held in common shall exercise all the rights corresponding to
the owner thereof with regard to the administration and collection of fruits or interests. Should the
community cease by reason of the division of the thing possessed in common, the usufruct of the part
awarded to the owner or coowner shall appertain to the usufructuary." cralaw virtua 1aw lib rary

As to the fourth proposition, the agreed statement of facts shows that, while the defendants were in
possession of the tracts which had been assigned to them, they received the crops for only two years; that
the crop for the year 1906 amounted to 14 uyones and 13 manojos, of the value of P4. for each uyon, and
that the crop of 1907 amounted to 15 uyones and 4 manojos, of the value of P6.25 for each uyon. These are
the only amounts which the plaintiff is entitled to recover.

As to the fifth proposition, while it appears that the plaintiff excepted to the judgment. and stated that she
desired to present a bill of exceptions, yet she in fact did not present any. The error, therefore, assigned by
her with reference to this fifth proposition can not be considered. (Naval v. Benavides, 8 Phil. Rep., 250;
Puruganan v. Martin, 8 Phil. Rep., 519; Ullmann v. Ullmann & Co., 10 Phil. Rep., 459.)

The judgment of the court below is reversed and the case remanded, with directions to enter a judgment in
favor of the plaintiff to the effect that she is entitled to the right of usufruct in the lands assigned to the
defendants by the partition of August 10, 1905, and to enter a judgment against the plaintiff and in favor of
the defendant Querol for P149.48 without costs to either party. No costs will be allowed to either party in
this court. So ordered.

Arellano, C.J., Torres, Mapa, Carson and Tracey, JJ., concur.

12
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-18003 September 29, 1962

ROSARIO GREY VDA. DE ALBAR and JOSE M. GREY, petitioners,

vs.
JOSEFA FABIE DE CARANDANG and THE COURT OF APPEALS (Second
Division), respondents.

Montenegro, Madayag, Viola and Hernandez for petitioners.

Ambrosio Padilla and Santiago P. Blanco for respondents.

DIZON, J.:

Appeal taken by Rosario, Grey Vda. de Albar and Jose M. Grey from the decision of the Court of
Appeals CA-G.R. No. 28196-R — an original action for certiorari filed by respondents Josefa Fabie
de Carandang.

In her will the deceased Doña Rosario Fabie y Grey bequeathed the naked ownership of a parcel of
land situated at Ongpin St., Manila, and of the building and other improvements existing thereon, to
petitioners, and the usufruct thereof to respondent for life. Because the improvements were
destroyed during the battle for the liberation of the City of Manila, the Philippine War Damage
Commission paid petitioners a certain sum of money war damage. It was respondent, however, who
paid the real estate taxes due on the land for the years 1945 to 1954.

On October 2, 1952, petitioners commenced Civil Case No. 17674 in the Court of First Instance of
Manila to limit respondent's usufruct to the legal interest on the value of the land. After due trial the
court rendered judgment as follows:

En virtud de todo lo cual, el Juzgado promulga decision a favor de la demandada

usufructuaria, declarando:

(a) Que su usufructo vitalicio continua sobre la finca en Ongpin con derecho exclusivo de
percibir durante su vida la totalidad de sus rentas, sin que los demandantes tengan derecho
de inmiscuirse en la administracion de dicha finca;

(b) Con derecho de percibir el 6% de la cantidad de P8,574.00 percibidos como

indemnizacion de guerra desde Enero 11, 1950;

(c) Al reembolso de la suma de P1,989.27 pagados o abonados por la demandada como

pagos de amillaramiento desde la fecha de la Contestacion, Octubre 22, 1953;

(d) Mas la suma de P2,000.00 como daños y perjuicios en forma de honorarios de abogado
y gastos de litigio;

(e) Con las costas a cargo de los demandantes.

Deciding the appeal taken by petitioners, the Court of Appeals rendered judgment as follows:

Wherefore, we hereby affirm the decision appealed from insofar as it holds that appellee's
right of life usufruct subsist and is in full force and effect upon the Ongpin lot and the building
now existing thereon, and that she is entitled to receive from appellants 6% of the amount
the latter actually received from the Philippine War Damage Commission, and we hereby
reverse said decision, declaring that reimbursement to appellee of the sum of P1,989.27 paid

13
 by her for real estate taxes is deferred until the termination of the usufruct, and that she is
not entitled to any amount for attorney's fees.

On appeal taken by petitioners, We, in turn, rendered judgment affirming that of the Court of Appeals
with the modification that petitioners should not be made to reimburse the real estate taxes paid by
respondent for the years 1945 to 1954. Upon a motion for reconsideration, filed by petitioner, We
further modified the appealed judgment by eliminating therefrom the portion requiring them to give
security for the payment of legal interest on the amount of the war damage.

The record of the case having been remanded to the court of origin for execution, respondent filed a
motion praying that the court issue an order for the "payment of the appellate jurisdiction of the Court
of Appeals, 11, 1950 to January 11, 1960, which are already due to the defendant usufructuary from
the plaintiffs, naked owners, as legal interest on the war damage payments received by the latter
covering said ten years period and that plaintiffs be ordered to pay defendant usufructuary the
amount of P196.32 every year, representing the legal interest per annum payable on or before
January 15, 1961, and every year thereafter during the existence of the usufruct." 1aw phîl.nèt

Petitioners opposed the motion alleging that because respondent failed to pay the real estate taxes
on the property for the years 1954 to 1959, the property was declared delinquent and sold at public
auction to Mrs. Pilar T. Bautista; that respondent failed to repurchase the property despite the fact
that she was under obligation to do so in order to maintain her usufruct thereon; that June 8, 1959,
petitioners repurchased the same for P715.05 and paid all the back taxes due thereon up to 1957,
bringing the total amount of real estate taxes paid by them to P3,495.00; that, consequently,
respondent's usufruct over the property was extinguished and they are entitled to reimbursement for
the amount of real estate taxes paid by them. On these grounds they prayed for the denial
respondent's motion, or for the suspension of the issuance of the writ of execution until the question
of the termination of respondent's usufruct has been finally settled.

On July 2, 1960, the Court of First Instance of Manila issued the following order:

On motion of the defendant and it appearing that the decision of this Court dated August 10,
1953, as modified by the decisions of the Court of Appeals in CA-G.R. No. 11917-R and of
the Supreme Court in G.R. No. L-13361, had already become final and executory, let a writ
be issued for the execution of the said decision.

In collecting and satisfying the sums adjudged in the judgment in favor of the plaintiffs,
[defendant] the Sheriff of Manila is hereby ordered to withhold the sum of P3,495.90 which
the plaintiffs claim to be reimbursable to them for real estate taxes paid on the property for
the years 1954, 1955, 1957 and 1959, as well as the sum spent in repurchasing the property
from the buyer at public auction, Mrs. Pilar T. Bautista. The disposition of the said sum
should be threshed out by the parties in a separate incident either in this action or in an
independent litigation.

On July 23, 1960 respondent filed a motion for the reconsideration of the above order upon the
ground that it imposes a condition on the execution of the judgment rendered in the case — which,
as modified by the appellate courts, had already become executory. The court, however, denied the
motion in its order of August 25 of the same year, which, in part, said:

The Court recognizes the fact that the decision had already become final and executory and
has ordered the issuance of the property writ for the enforcement of the said decision, in the
first paragraph of the questioned order. The second paragraph of the same order was
deemed necessary in view of the apparent conflict between the parties as to how to execute
the decision, particularly with regard to the liability for real estate taxes on the property in
question. The difference of their views on this matter is very evident in the pleadings they
have filed in connection with the issuance of the writ of execution. In view of this divergence
of opinion between the parties, the Court considered it wise to withhold the disputed sum, the
same to be disposed of in such manner that the parties may thresh out between themselves
in a separate incident or in an independent action. There is no intention to modify or impose
any condition on the enforcement of the judgment; rather, the Court merely desires that the
said judgment be enforced and executed in the correct and proper manner.

A petition for certiorari was thereafter filed by respondent Josefa Fabie de Carandang with the Court
of Appeals to annul the orders of July 2, 1960 and August 25, 1960, on the ground that the same

14
were not in conformity with our decision in G.R. No. L-13361, as modified by our resolution of
February 10, 1960.

Respondents' answer, after admitting some of the averments made in the petition for certiorari and
denying the others, alleged as affirmative defenses, inter alia, that appeal in due time was the proper
remedy against the orders complained of; that the Court of Appeals had no jurisdiction over the
petition because the writ sought was not in aid of its appellate jurisdiction, and lastly, that the
respondent judge, in issuing the aforesaid orders, did not commit any grave abuse of discretion.

Upon the issues thus submitted, the Court of Appeals rendered the appealed decision annuling the
orders of July 2 and August 25, 1960 mentioned heretofore, and ordering the respondent judge to
issue the writ of execution in accordance with our decision of December 29, 1959, as modified by
our resolution of February 10, 1960. Hence the present appeal.

Petitioners reiterate now their contention that the Court of Appeals had no jurisdiction over the
petition for certiorarifiled by herein respondent, Josefa Fabie Vda. de Carandang (CA-G.R. No.
28196), because the writ sought therein was not in aid of its appellate jurisdiction. We find this
contention to be meritorious.

It is not disputed that the Court of Appeals has original jurisdiction to issue writs of certiorari,
prohibition, mandamus, and all other auxiliary writs in aid of its appellate jurisdiction (Section 30,
Republic Act 296, commonly known as Judiciary Act of, 1948). Settled likewise is the view that
anyone of the writs aforesaid is in aid of the appellate jurisdiction of the Court of Appeal within the
meaning of the law, if said court has jurisdiction to review, by appeal or writ of error, the final
decision that might be rendered in the principal case by the court against which the writ is sought.

In Breslin vs. Luzon Stevedoring Co., et al., 47 O.G. 1170, the main question raised by certiorari,
was whether or not the Court of First Instance of Manila erred in denying admission of an amended
complaint filed by the plaintiffs in Civil Case No. 4609 and, accordingly, in dismissing the case. The
Court of Appeals forwarded the case to us in the belief that the writ sought by petitioners therein was
not in aid of its appellate jurisdiction. The reason given in support of this view was that if petitioners
in the case had sought a review of the orders complained of, by appeal or writ of error, the review
would have fallen under our exclusive appellate jurisdiction because it would have involved
exclusively a question of law. In deciding whether or not the case was correctly forwarded to Us,
however, we said that the reason relied upon had no bearing on the question of whether or not the
writ of certiorari sought by the therein petitioners was in aid of the appellate jurisdiction of the Court
of Appeals because the determining factor for the solution of that question was whether said court
had appellate jurisdiction to review the final decision of the Court of First Instance on the merits of
petitioners' action. In the present case it is undisputed that the review of the final decision rendered
by the Court of First Instance of Manila in Civil Case No. 17674 instituted by herein petitioner against
respondent Josefa Fabie de Carandang was within the appellate jurisdiction of the Court of Appeals.
In fact, it was actually appealed to said court (CA-G.R No. 11917-R) and its decision was
subsequently appealed to us (G.R. No. L-13361).

While from the above circumstances it might appear that — conformally with our decision in the
Breslin case — the Court of Appeals had jurisdiction over the petition for certiorari filed by
respondent Josefa Fabie de Carandang against herein petitioners and the Court of First Instance of
Manila, because the writ sought was in aid of its appellate jurisdiction, we find it to be otherwise in
view of one important fact that makes the aforesaid decision inapplicable to the present case.

Before Breslin and others filed their petition for certiorari with the Court of Appeals, there had been
no trial and decision on the merits in the principal case — which was for the recovery of a sum of
money — because the trial court not only refused to admit their amended complaint but also
dismissed the case on the ground that the plaintiffs had no cause of action against the defendant.
Consequently, it was still reasonable and logical to say that the writ of certiorari sought in their
petition was in aid of the appellate jurisdiction of the Court of Appeals because, upon trial on the
merits, the final decision that would have been rendered by the Court of First Instance of Manila
would have been appealable to the Court of Appeals considering the amount involved.

In the present case such situation does not obtain. The main case (Civil Case No. 17674 of the
Court of First Instance of Manila) had already been finally decided, first by the Court of First Instance
of Manila, then by the Court of Appeals and lastly, by Us; our decision had become executory, for
which reason the record of the case was remanded below for purposes of execution; there was
absolutely nothing left of the substance of the action to be resolved. Such being the case, there can

15
be no reason to say that the Court of Appeals still had jurisdiction to review the final orders and
decision of the Court of First Instance in said case, by appeal or writ of error. That jurisdiction had
already been exercised and exhausted with the rendition of the decision of the Court of Appeals in
C.A. G.R. No. 11917. Upon the other hand, assuming that the orders complained of are appealable,
they could only be appealed to Us because the appeal would have necessarily involved nothing
more than a question of law, namely, whether or not the Court of First Instance of Manila had
jurisdiction to issue the orders complained of.

In view of the foregoing, we hold that the Court Appeals had no jurisdiction to entertain Carandang's
petition for certiorari, and, as a result, the appealed decision is set aside. But, in view of the fact that
we have original jurisdiction to entertain said petition, we shall proceed to decide it on the merits as if
it had been originally filed with Us, in order to save time and avoid unnecessary expenses for the
parties — following the practice adopted in the Breslin case.

The question to be resolved is whether the order July 2 and August 25, 1960 issued by the Court of
First Instance of Manila modify our decision in G.R. No. L-13361, as modified by our resolution of
February 10, 1960. The answer must be in the negative.

It is, of course, the law in this jurisdiction that a decision, once executory, is beyond amendment, the
prevailing party being entitled to its execution as a matter of right; that the writ of execution to be
issued must form with the decision (Buenaventura vs. Garcia, 78 Phil. 759); but it is likewise settled
that a stay of execution of a final judgment may be authorized if necessary to accomplish the aims of
justice, as for instance, where there has been a change in the situation of the parties which makes
such execution inequitable (Chua Lee vs. Mapa, 51 Phil. 624-625, Li Kim Tho vs. Sanchez, 83 Phil.
776, 778).

As stated heretofore, when petitioners opposed respondent Carandang's motion for execution, they
alleged that because the latter did not pay the real estate taxes on the property over which she had
usufructuary rights, for the years 1954 to 1959, the property was declared delinquent and sold at
public auction; that because Carandang failed to repurchase it, petitioners made the purchase for
the sum of P715.05, and paid all the back taxes up to 1957 as well as those for the year 1959,
having paid the total sum of P3,495.00 as real estate taxes, which amount they claimed
reimbursement from respondent Carandang.

Upon the above facts — if proven — it would seem that petitioners had at least a prima facie case
against the aforesaid respondent. It was in this connection precisely that the order of July 2, 1960
provided that "the Sheriff of Manila is hereby ordered to withhold the sum of P3,495.98 . . ., as well
as the sum spent in repurchasing the property . . .", providing further that "the disposition of said sum
should be threshed out by the parties in a separate incident either in this action or in the independent
litigation." This order, in our opinion, does not amount to a modification of our final decision in the
principal case, nor to the imposition of a condition upon its enforcement. It amounts to a mere stay of
execution and is authorized by our decisions in the Chua Lee and Lim Kim Tho cases (supra).

IN VIEW OF THE FOREGOING, the writ prayed for in the petition for certiorari filed by Josefa Fabie
de Carandang against Rosario Grey Vda. de Albar, Jose M. Grey, and the Hon. Conrado M.
Vasquez (CA-G.R. No. 28196-R) is denied. With costs.

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Concepcion, Reyes, J.B.L., Barrera, Paredes and
Makalintal, JJ., concur.

16
 FIRST DIVISION

[G.R. NO. 170846 : February 6, 2007]

NATIONAL POWER CORPORATION, Petitioner, v. AURELLANO S. TIANGCO, LOURDES S. TIANGCO

and NESTOR S. TIANGCO, Respondents.

DECISION

GARCIA, J.:

In this Petition for Review on Certiorari under Rule 45 of the Rules of Court, petitioner National Power
Corporation (NPC) seeks the annulment and setting aside of the Decision1 dated March 14, 2005 of the
Court of Appeals (CA) in CA-G.R. CV No. 53576, as reiterated in its Resolution2 of December 2, 2005 which
denied the petitioner's motion for reconsideration. The assailed decision modified that of the Regional Trial
Court (RTC) of Tanay, Rizal, Branch 80, by increasing the amount of just compensation due the respondents
in an expropriation case filed against them by the petitioner.

The facts:

Herein respondents Aurellano, Lourdes and Nestor, all surnamed Tiangco, are the owners of a parcel of land
with an area of 152,187 square meters at Barangay Sampaloc, Tanay, Rizal and registered in their names
under TCT No. M-17865 of the Registry of Deeds of Rizal.

On the other hand, petitioner NPC is a government-owned and controlled corporation created for the
purpose of undertaking the development and generation of power from whatever source. NPC's charter
(Republic Act No. 6395) authorizes the corporation to acquire private property and exercise the right of
eminent domain. ςη αñ rοbl ε š νιr†υαl l αω l ιb rα rÿ

NPC requires 19,423 square meters of the respondents' aforementioned property, across which its 500Kv
Kalayaan-San Jose Transmission Line Project will traverse. NPC's Segregation Plan3 for the purpose shows
that the desired right-of-way will cut through the respondents' land, in such a manner that 33,392 square
meters thereof will be left separated from 99,372 square meters of the property. Within the portion sought
to be expropriated stand fruit-bearing tress, such as mango, avocado,
jackfruit, casuy, santol, calamansi, sintones and coconut trees.

On November 20, 1990, after repeated unsuccessful negotiations with the respondents, NPC filed with the
RTC of Tanay, Rizal a complaint for expropriation4 against them. In time, the respondents filed their answer.

On March 14, 1991, the trial court issued a Condemnation Order, granting NPC the right to take possession
of the area sought to be expropriated. In the same Order, the court directed the parties to nominate their
respective commissioners, with a third member to be nominated and appointed by the court itself, to
determine the proper amount of just compensation to be paid to the respondents. As constituted in the
manner thus indicated, the board of commissioners was composed of the following: for NPC, Atty. Restituto
Mallo of its Legal Department; for the respondents, Mr. Basilio Afuang, a geodetic engineer and a real estate
broker by profession; and for the court, Clerk of Court V Ms. Amelia de Guzman Carbonell.

On April 5, 1991, the trial court issued an order directing NPC to pay and deposit with the Rizal Provincial
Treasurer the amount of P81,204.00, representing the temporary provisional value of the area subject of the
expropriation prior to the taking of possession thereof. On April 22, 1991, with NPC having complied with
the deposit requirement, a writ of possession was issued in its favor.

Thereafter, an ocular inspection of the premises was conducted and hearings before the board of
commissioners were held, during which the Municipal Assessor of Tanay, Rizal was presented. He submitted
a record of the Schedule of Values for taxation purposes and a certification to the effect that the unit value
of the respondents' property is P21,000.00 per hectare.

On August 7, 1993, commissioner Basilio Afuang for the respondents filed his report. He pegged the price of
the area sought to be expropriated at P30.00 per square meter or P582,690.005 in the aggregate; and for
the improvements thereon, Afuang placed a valuation of P2,093,950.00. The figures are in contrast with the
respondents' own valuation of P600,600.00, for the area, and P4,935,500.00, for the improvements.

17
On September 14, 1993, NPC filed an amended complaint to acquire only 19,423 square meters of the
respondents' property. The original area of 20,220 square meters initially sought to be expropriated under
the original complaint turned out to be in excess of the area required.

For its part, NPC made it clear that it is interested only in acquiring an easement of right-of-way over the
respondents' property and that ownership of the area over which the right-of-way will be established shall
remain with the respondents. For this reason, NPC claims that it should pay, in addition to the agreed or
adjudged value of the improvements on the area, only an easement fee in an amount equivalent to ten per
cent (10%) of the market value of the property as declared by the respondents or by the Municipal
Assessor, whichever is lower, as provided for under Section 3-A of Republic Act No. 6395, as amended by
Presidential Decree 938.6

The court-appointed commissioner, Ms. Amelia de Guzman Carbonell, found that the risk and dangerous
nature of the transmission line project essentially deprive the respondents of the use of the area.
Nonetheless, she recommended that the determination of just compensation should be relegated to "expert
appraisers."7

From the evidence before it, the trial court made a determination that the market value of the property
is P2.09 per square meter, or P40,594.07 for the entire 19,423 square meters needed by NPC, and not
the P30.00 per square meter claimed by the respondents. Neither did the trial court consider NPC's reliance
on Section 3-A of Republic Act No. 6395, as amended by Presidential Decree 938, the court placing more
weight on the respondents' argument that expropriation would result in the substantial impairment of the
use of the area needed, even though what is sought is a mere aerial right-of-way. The court found as
reasonable the amount of P324,750.00 offered by NPC for the improvements, as the same is based on the
official current schedule of values as determined by the Municipal Assessor of Tanay, Rizal.

Hence, in its decision8 of February 19, 1996, the trial court rendered judgment as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered:

1. Expropriating in favor of [NPC] a parcel of land covering a total area of 19,423 sq.m. covered by TCT No.
M-17860 owned by the [respondents];

2. Ordering the amount of P40,594.07 as just compensation for the 19,423 square meters of land affected
by the expropriations; and the amount of P324,750.00 as reasonable compensation for the improvements
on the land expropriated with legal interest from the time of possession by the plaintiff. No pronouncement
as to costs.

SO ORDERED. (Words in brackets supplied.)

The respondents moved for reconsideration, presenting for the first time a document entitled "Bureau of
Internal Revenue Circular of Appraisal," which shows that for the year 1985, lands in Barangay Sampaloc
were valued at P30.00 per square meter; for the year 1992, at P80.00 per square meter; and for year 1994,
at P100.00 per square meter. Respondents maintain that the price of P30.00 per square meter for the
needed area of 19,423 square meters is the reasonable amount and should be the basis for fixing the
amount of just compensation due them. The trial court denied the motion, stating that the BIR circular in
question was belatedly filed and therefore NPC could not have opposed its presentation.

From the aforesaid decision of the trial court, both NPC and the respondents went on appeal to the CA
whereat the separate appeals were consolidated and docketed as CA-G.R. CV No. 53576. The appellate
court found merit in the respondents' appeal, and disregarded the P2.09 per square meter valuation of the
trial court, which was based on a 1984 tax declaration. Instead, the CA placed reliance upon a 1993tax
declaration, "being only two years removed from the time of taking."9 The appellate court determined the
time of taking to be in 1991. Thus, the greater value of P913,122.00 as declared in Tax Declaration No. 011-
2667 dated July 23, 1993 should be the basis for determining just compensation. With regard to the value of
improvements, the appellate court found NPC's valuation more favorable, being based on the current (1991)
schedule of values for trees in the provinces of Rizal and Laguna. Hence, in its decision10of March 14, 2005,
the CA rendered judgment, to wit:

WHEREFORE, the instant Appeal is GRANTED. The decision of the Regional Trial Court of Tanay, Rizal,
Branch 80 dated February 19, 1996 is hereby MODIFIED and the compensation awarded for the 19,423
square meters of land affected is increased to P116,538.00, and the reasonable compensation for the
improvements thereon is likewise increased to P325,025.00, with legal interest from the time of possession
by the plaintiff-appellee NAPOCOR. No pronouncement as to costs.

SO ORDERED.

NPC moved for reconsideration, but its motion was denied by the appellate court in its resolution11 of
December 2, 2005.

18
Hence, NPC's instant Petition for Review, submitting for our resolution only the following issues with respect
to the amount of just compensation that must be paid the respondents for the expropriated portion (19,423
square meters) of their property:

1. Is it to be based on the 1984 or the 1993 valuation? cralaw library

2. Should NPC pay for the value of the land being taken, or should it be limited to what is provided for under
P.D. 938, that is, ten per cent (10%) of its market value as declared by the owner or the assessor
(whichever is lower), considering that the purpose for which the property is being taken is merely for the
establishment of a safe and free passage for its overhead transmission lines?

There is no issue as to the improvements. Since the P325,025.00 valuation therefor is the very price set by
the NPC commissioner, to which the corporation did not object but otherwise adopts, the Court fixes the
amount of P325,025.00 as just compensation for the improvements.

We now come to the more weighty question of what amount is just by way of compensation for the 19,423
square-meter portion of the respondents' property.

In eminent domain cases, the time of taking is the filing of the complaint, if there was no actual taking prior
thereto. Hence, in this case, the value of the property at the time of the filing of the complaint on November
20, 1990 should be considered in determining the just compensation due the respondents. So it is that in
National Power Corporation v. Court of Appeals, et al.,12 we ruled:

Normally, the time of the taking coincides with the filing of the complaint for expropriation. Hence, many
rulings of this Court have equated just compensation with the value of the property as of the time of filing of
the complaint consistent with the above provision of the Rules. So too, where the institution of the action
precedes entry into the property, the just compensation is to be ascertained as of the time of the filing of
the complaint.

The trial court fixed the value of the property at its 1984 value, while the CA, at its 1993 worth. Neither of
the two determinations is correct. For purposes of just compensation, the respondents should be paid the
value of the property as of the time of the filing of the complaint which is deemed to be the time of taking
the property.

It was certainly unfair for the trial court to have considered a property value several years behind its worth
at the time the complaint in this case was filed on November 20, 1990. The landowners are necessarily
shortchanged, considering that, as a rule, land values enjoy steady upward movement. It was likewise
erroneous for the appellate court to have fixed the value of the property on the basis of a 1993 assessment.
NPC would be paying too much. Petitioner corporation is correct in arguing that the respondents should not
profit from an assessment made years after the taking.

The expropriation proceedings in this case having been initiated by NPC on November 20, 1990, property
values on such month and year should lay the basis for the proper determination of just compensation.
In Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform,13 the Court ruled
that the equivalent to be rendered for the property to be taken shall be substantial, full, ample and, as must
apply to this case, real. This must be taken to mean, among others, that the value as of the time of taking
should be the price to be paid the property owner.

Just compensation is defined as the full and fair equivalent of the property taken from its owner by the
expropriator. In this case, this simply means the property's fair market value at the time of the filing of
the complaint, or "that sum of money which a person desirous but not compelled to buy, and an owner
willing but not compelled to sell, would agree on as a price to be given and received therefor."14 The
measure is not the taker's gain, but the owner's loss.

In the determination of such value, the court is not limited to the assessed value of the property or to the
schedule of market values determined by the provincial or city appraisal committee; these values consist but
one factor in the judicial valuation of the property.15 The nature and character of the land at the time of its
taking is the principal criterion for determining how much just compensation should be given to the
landowner16 All the facts as to the condition of the property and its surroundings, as well as its
improvements and capabilities, should be considered.17

Neither of the two determinations made by the courts below is therefore correct. A new one must be arrived
at, taking into consideration the foregoing pronouncements.

Now, to the second issue raised by petitioner NPC.

In several cases, the Court struck down NPC's consistent reliance on Section 3-A of Republic Act No. 6395,
as amended by Presidential Decree 938.18 True, an easement of a right-of-way transmits no rights except
the easement itself, and the respondents would retain full ownership of the property taken. Nonetheless, the
acquisition of such easement is not gratis. The limitations on the use of the property taken for an indefinite

19
period would deprive its owner of the normal use thereof. For this reason, the latter is entitled to payment of
a just compensation, which must be neither more nor less than the monetary equivalent of the land taken.19

While the power of eminent domain results in the taking or appropriation of title to, and possession of, the
expropriated property, no cogent reason appears why said power may not be availed of to impose only a
burden upon the owner of the condemned property, without loss of title and possession.20However, if the
easement is intended to perpetually or indefinitely deprive the owner of his proprietary rights through the
imposition of conditions that affect the ordinary use, free enjoyment and disposal of the property or through
restrictions and limitations that are inconsistent with the exercise of the attributes of ownership, or when the
introduction of structures or objects which, by their nature, create or increase the probability of injury,
death upon or destruction of life and property found on the land is necessary, then the owner should be
compensated for the monetary equivalent of the land, in accordance with our ruling in NPC v. Manubay
Agro-Industrial:

As correctly observed by the CA, considering the nature and the effect of the installation power lines, the
limitations on the use of the land for an indefinite period would deprive respondent of normal use of the
property. For this reason, the latter is entitled to payment of a just compensation, which must be neither
more nor less than the monetary equivalent of the land.21

The evidence suggests that NPC's transmission line project that traverses the respondents' property is
perpetual, or at least indefinite, in nature. Moreover, not to be discounted is the fact that the high-tension
current to be conveyed through said transmission lines evidently poses a danger to life and limb; injury,
death or destruction to life and property within the vicinity. As the Court held in NPC v. Chiong,22it is not
improper to assume that NPC will erect structures for its transmission lines within the property. What is
sought to be expropriated in this case is, at its longest extent, 326.34 meters, and through it may be built
several structures, not simply one. Finally, if NPC were to have its way, respondents will continue to pay the
realty taxes due on the affected portion of their property, an imposition that, among others, merits the
rejection of NPC's thesis of payment of a mere percentage of the property's actual value.

WHEREFORE, the instant petition is GRANTED in part in that the decision of the Court of Appeals dated
March 14, 2005 vis a vis the award of P116,538.00, as and by way of just compensation for the 19,423
square meters of the respondents' property, is SET ASIDE, and the case is ordered REMANDED to the court
of origin for the proper determination of the amount of just compensation for the portion thus taken, based
on our pronouncements hereon. The same decision, however, is AFFIRMED, insofar as it pertains to the
award of P325,025.00 for the improvements, with legal interest from the time of actual possession by the
petitioner.

No pronouncement as to costs.

SO ORDERED.

Endnotes:

1
Penned by Associate Justice Vicente Q. Roxas, with Associate Justices Portia Aliňo-Hormachuelos and
Juan Q. Enriquez, concurring; Rollo, pp. 23-32.

2
Id. at 38.

3
Id. at 57.

4
The complaint was later amended because it failed to state the true area that was required for the project,
which is 19,423 square meters. Supra note 6.

5
The total amounts stated in the records (the commissioners' reports included) are inaccurate, for they are
based on the original area of 22,200 square meters that NPC originally sought for the project; a resurvey
was conducted, and it was found that only 19,423 square meters was required therefor. The complaint was
amended accordingly, but only after the commissioners have prepared and submitted their respective
reports.

6
P.D. 938, "An Act Further Amending Certain Sections of Republic Act Numbered Sixty-Three Hundred
Ninety-Five Entitled, 'An Act Revising the Charter of the National Power Corporation', " as amended by
Presidential Decrees Nos. 380, 395 and 758 provides:

"Section 4. A new section shall be inserted to be known as Section 3A of the same Act to read as follows:

Sec. 3A. In acquiring private property or private property rights through expropriation proceedings where
the land or portion thereof will be traversed by the transmission lines, only a right-of-way easement thereon
shall be acquired when the principal purpose for which such land is actually devoted will not be impaired,

20
and where the land itself or portion thereof will be needed for the projects or works, such land or portion
thereof as necessary shall be acquired.

In determining the just compensation of the property or property sought to be acquired through
expropriation proceedings, the same shall

(a) With respect to the acquired land or portion thereof, not exceed the market value declared by the owner
or administrator or anyone having legal interest in the property, or such market value as determined by the
assessor, whichever is lower.

With respect to the acquired right-of-way easement over the land or portion thereof, not to
exceed ten percent (10%) of the market value declared by the owner or administrator or anyone
having legal interest in the property, or such market value as determined by the assessor
whichever is lower.

In addition to the just compensation for easement of right-of-way, the owner of the land or owner of the
improvement, as the case may be, shall be compensated for the improvements actually damaged by the
construction and maintenance of the transmission lines, in an amount not exceeding the market value
thereof as declared by the owner or administrator, or anyone having legal interest in the property, or such
market value as determined by the assessor whichever is lower; Provided, that in cases any buildings,
houses and similar structures are actually affected by the right-of-way for the transmission lines, their
transfer, if feasible, shall be effected at the expense of the Corporation; Provided, further, that such market
value prevailing at the time the Corporation gives notice to the landowner or administrator or anyone having
legal interest in the property, to the effect that his land or portion thereof is needed for its projects or works
shall be used as basis to determine the just compensation therefor."

7
Report of Commissioner Amelia de Guzman Carbonell, Clerk of Court V, Rollo, pp.73-75.

8
Id. at 76-81.

9
Id. at 30.

10
Supra note 1.

11
Supra note 2.

12
G.R. No. 113194, March 11, 1996, 254 SCRA 577.

13
G.R. No. 78742, July 14, 1989, 175 SCRA 343.

14
National Power Corporation v. Chiong, G.R. No. 152436, June 20, 2003, 404 SCRA 527.

15
Republic v. Ker and Company Limited, G.R. No. 136171, July 2, 2002, 383 SCRA 584; Republic v. Court of
Appeals, G.R. No. L-44222, September 30, 1987, 154 SCRA 428.

16
National Power Corporation v. Chiong, G.R. No. 152436, June 20, 2003, 404 SCRA 527.

17
Export Processing Zone Authority v. Dulay, G.R. No. L-59603, April 29, 1987, 149 SCRA 305.

18
Didipio Earth-Savers' Multi-Purpose Association, Inc. (DESAMA) v. Gozun, G.R. No. 157882, March 30,
2006, 485 SCRA 587; NPC v. Paderanga, G.R. No. 155065, July 28, 2005, 464 SCRA 481; National Power
Corporation v. Chiong, G.R. No. 152436, June 20, 2003, 404 SCRA 527; NPC v. Gutierrez, G.R. No. 60077,
January 18, 1991, 193 SCRA 1; Camarines Norte Electric Cooperative, Inc. (CANORECO) v. Court of
Appeals, G.R. No. 109338, November 20, 2000, 345 SCRA 85.

19
NPC v. Manubay Agro-Industrial Development Corporation, G.R. No. 150936, August 18, 2004, 437 SCRA
60.

20
NPC v. Gutierrez, supra.

21
NPC v. Manubay Agro-Industrial Development Corporation, supra.

22
Supra. Therein the Court declared:

Petitioner averred in its complaint in Civil Case No. 1442-I, that it sought to acquire "an easement of right-
of-way" over portions of the properties owned by respondents, for a total of 10,950 square
meters. However, a perusal of its complaint shows that petitioner also stated that it would erect structures
for its transmission lines on portions of the expropriated property. In other words, the expropriation was not
to be limited for the purpose of "easement of right-of-way." In fact, in their Answer, the Heirs of Agrifina

21
Angeles, alleged that petitioner had actually occupied an area of 4,000 square meters wherein it constructed
structures for its transmission lines and was seeking to occupy another 4,000 square meters. Petitioner
failed to controvert this material allegation. Justifiably, the market value of these 4,000 square meters
allegedly occupied by the petitioner has become the very crux of the present case.

22
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-20786 October 30, 1965

IN RE: PETITION FOR CANCELLATION OF CONDITION ANNOTATED ON TRANSFER

CERTIFICATE OF TITLE No. 54417, QUEZON CITY, DRA. RAFAELA V. TRIAS, married to
MANUEL SIA RAMOS, petitioner-appellee,
vs.
GREGORIO ARANETA, INC. oppositor-appellant.

Yatco & Yatco for petitioner-appellee.

Araneta & Araneta for oppositor-appellant.

BENGZON, C.J.:

In May 1963, Rafaela Trias, married, filed in the Rizal court of first instance, a petition to cancel from
her Torrens certificate of title, the annotation appearing on its back which reads as follows:

5. That no factories will be permitted in this section.

She alleged she was the registered owner of this lot in Quezon City; that she wanted the
cancellation, not for the purpose of erecting a factory thereon, but merely to facilitate approval of a
loan she had applied for; that the restriction was illegal, because it impaired the owner's dominical
rights; and that it was a mere surplusage anyhow, because there are zoning ordinances prohibiting
establishment of factories in that district.

Acting on the petition, the court granted it, endorsing her views, particularly the one referring to
surplusage due to a zoning ordinance.

Two weeks later, Gregorio Araneta, Inc. moved for reconsideration of the order, alleging: (a) that the
condition had been inserted in the title pursuant to a contract of sale between it and Rafaela's
predecessor-in-interest; (b) that it received no timely notice of petition; (c) that the order disregards
contractual rights and obligations; (d) that the prohibition against factories was valid, and not a
surplusage; and (e) that the Court had no jurisdiction to act on the petition.

Upon denial of its motion to reconsider, Gregorio Araneta, Inc. appealed to this Court.

There are no issues of fact. The parties agree: (1) that the lot was part of a subdivision and originally
belonged to J.M. Tuason & Co. Inc. which corporation upon selling it (thru Araneta Inc.) to a
purchaser (Garcia Mateo and Deogracias Lopez), imposed the prohibition; that such prohibition was
accordingly printed on the back of the transfer certificate issued to the purchaser; (2) after several
transfers, always subject to the prohibition, Rafaela acquired the lot, again subject to the limitation
which was repeated on the back of her certificate; (3) that upon receiving her certificate, she noticed
the prohibition; and so, arguing that it infringes the owner's right to use her land, she asked for its
cancellation; (4) as already stated, she obtained relief.

The questions at issue here are: (a) the validity of the prohibition or limitation; (b) the effect of the
zoning ordinance.

Such prohibition is similar to other conditions imposed by sellers of subdivision lots upon purchasers
thereof, in and around Manila. It is in reality an easement,1 which every owner of real estate may
validly impose under Art. 594 of the Civil Code or under Art. 688 of the New Civil Code, which
provides that "the owner of a piece of land nay establish thereon the easements which he may deem
suitable, ... provided he does not contravene the law, public policy or public order".

No law has been cited outlawing this condition or limitation, which evidently was imposed by the
owner of the subdivision to establish a residential section in that area, or the purpose of assuring
purchasers of the lots therein that the peace and quiet of the place will not be disturbed by the noise
or smoke of factories in the vicinity.

23
The limitation is essentially a contractual obligation which the seller, Tuason & Co., Inc. (thru
Araneta Inc.) imposed, and the purchaser agreed to accept. Of course, it restricts the free use of the
parcel of land by the purchaser. However, "while the courts have manifested some disfavor of
covenants restricting the use of property, they have generally sustained them where reasonable, and
not contrary to public policy ... ." (14 Am. Jur. 616.).

"The validity of building restrictions limiting buildings to residences, ... restrictions as to the character
or location of buildings or structures to be erected on the land ... has been sustained. (14 Am. Jur.
617, citing cases.)

Now, it is proper for Tuason & Co., Inc. (thru Araneta, Inc.) to oppose the elimination of the condition
from the certificate of title, because, if it is erased, a purchaser who gets a new certificate of title
without the annotation, will hold the lot free from the encumbrance, and might build a factory
there.2 As declared by sec. 39 of Act 496 as amended, "every purchaser of registered land ... shall
hold the same free from all encumbrances except those noted in said certificate."

The existence of a zoning ordinance prohibiting factories in the area is immaterial. The ordinance
might be repealed at any time; and if so repealed, this prohibition would not be enforceable against
new purchasers of the land, who may be ignorant thereof. The same remark applies to Rafaela's
promise not to build a factory on the lot: new owners might not be bound.

A problem might arise if and when the ordinance is amended so as to convert the area into an
industrial zone — impliedly permitting factories. Probably, the limitation might still bind the lot owner
(with annotation) ; but it is not the present issue, and we do not now decide it.

IN THIS VIEW OF THE CASE, it becomes unnecessary to take up the other questions discussed by
appellant, regarding notice and jurisdiction. Neither do we pass on the point raised by appellee
concerning appellant's personality to object to the cancellation; because anyway, the proper party in
interest (J.M. Tuason & Co., Inc.) could be impleaded as substitute party on appeal. (Alonzo v.
Villamor, 16 Phil. 315).

The appealed order is reversed, and the petition to cancel is denied, with costs against petitioner. So
ordered.

Bautista Angelo, Concepcion, Dizon, Regala, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.
Reyes, J.B.L., J., took no part.

Footnotes

1 For that reason it was annotated, as it should, in all subsequent transfer certificates.

2And J. M. Tuason & Co., Inc. might be liable to those who bought lots in the subdivision
relying on the prohibition against factories in that part of the city.

24
 WHEELER vs. RIVER FALLS POWER CO.

SAYRE, J.

The purpose of the first four counts of appellant's complaint was to state a cause of action as for a
nuisance for that appellee, defendant, erected a dam across Conecuh river, thereby impounding the
waters of the river, and causing plaintiff to become sick, and to suffer physical pain and mental
anguish. There is in these counts no allegation that the dam was unlawfully or wrongfully erected,
and for that reason, according to cases of recent decision in this court, the demurrer to these counts
was properly sustained. Hamilton v. Alabama Power Co., 195 Ala. 438, 70 So. 737; Burnett v.
Alabama Power Co., 199 Ala. 337, 74 So. 459; Meharg v. Alabama Power Co., 201 Ala. 555, 78
So. 909. In view of appellant's reference to section 9271 of the Code of 1923 as settling a different
doctrine, we observe that section 5193 of the Code of 1907, brought forward into the Code of 1923
as section 9271, antedated the decisions we have cited above, and we must assume, therefore, that
it had consideration when those decisions were rendered, and, with that consideration, was brought
forward into the present Code. So, likewise, the case of Town of Vernon v. Wedgeworth, 148 Ala.
490, 42 So. 749, antedates the cited cases, and the court, if there is any conflict — and we doubt
that any was intended — prefers now to follow its more recent adjudications.

Added counts 5, 6, 7, and 8 charge that defendant wrongfully and negligently erected the dam with
the consequences aforestated. Counts 7 and 8 more specifically charge that defendant negligently
impounded the waters of the said river in violation of the regulations of the state board of health,
in that it negligently failed to remove, burn, or otherwise satisfactorily dispose of "brush, trees,
undergrowth, logs, stumps, and similar objects which, if not removed, would float or collect
floatage on the surface of the impounded waters, and which would constitute conditions favorable
to the protection of the larvae of mosquitoes capable of conveying malaria," etc., whereby plaintiff
became sick, etc. The cases cited above were decided prior to the adoption of the regulations
referred to, and prior to the wrong and injury complained of, but the principles of substantive law
and pleading therein stated and approved by a majority of the court lead us to conclude that the
added counts sufficiently stated a cause of action.

Defendant corporation was organized under the law of this state, and enjoyed the powers conferred
by statute, now expressed by section 7193 of the Code of 1923, among others, the right to construct
and operate a dam across any nonnavigable stream such as Conecuh river is at the dam site in
question, "together with all works incident, necessary, or related thereto, and in connection
therewith to impound or divert the water" of that stream, and upon this seems to be based the
contention that defendant might proceed without reference to the regulations adopted with respect
to such enterprises by the state board of health. On December 1, 1922, the committee of public
health, purporting to act for the state board of health, or rather, as will appear, certain members of
the committee, undertook to adopt rules and regulations to govern the impounding of waters in
this state, a copy of which was furnished to defendant on April 24, 1923. Such rules and
regulations, when adopted according to the method provided by statute, "have the force and effect
of law, and shall be executed and enforced by the same courts, bodies, officials, agents and
employees as in the case of health laws." Code 1923, § 1051, subsec. 6. "Any person who violates
any of the health or quarantine laws, except those for which a special penalty is prescribed, shall
be guilty of a misdemeanor," etc. Code § 4360. Legislative competency to enact laws of this
character, i. e., laws "authorizing their own appointed agencies to make such minor rules and
regulations as are necessary or appropriate for the administration and enforcement of the general
laws of the state," has been approved and upheld by this court. Parke v. Bradley, 204 Ala. 455, 86
So. 28. Defendant had begun the work of clearing the ground (after a fashion) and the construction
of its dam prior to the date of these rules and regulations, but the waters of the river had not been
impounded. That was done afterwards. To the impounding of the waters, therefore, as alleged in
the complaint, the rules and regulations adopted by the board of health, if adopted with due warrant
of law, applied with full force.

But defendant contends that the rules and regulations in question were not adopted by the state
board of health according to law, but were nothing more than an expression emanating from

25
individual members of the board less in number than a quorum, and have not the force and effect
of law, and, as we read the record, the trial court adopted that view, and excluded the evidence of
the rules and regulations; thus leaving plaintiff without evidence of a fact essential to her case, and
raising the most vital question presented for decision on this appeal.

Our judgment is that the ruling here in question was free from error. Dr. Welch, who as state health
officer certified the transcript of the record of the state board of health, testifying as a witness for
plaintiff, stated that the rules and regulations governing the impounding of waters in this state were
adopted by a quorum of the board, but this, evidently, was the conclusion of the witness from facts
in evidence, and not the subject of dispute, whereas the question of law presented was one to be
decided by the court. The answer was properly excluded.

The transcript of the record of the state board of health, put in evidence, disclosed the fact that
there were present at the called meeting which undertook to adopt the rules and regulations in
dispute three members of the state committee of public health, the state health officer included,
and in addition the Governor, ex officio a member of the committee, and ex officio its chairman.
Code § 1047. But the state board of censors of the medical association of the state, which, when
acting in its appropriate capacity, is the state committee of public health, is composed of ten
members elected by the association, and the absentees, who had been informed of the pendency of
the proposed rules and regulations and their contents unanimously by mail certified their
concurrence in the act of adoption. This cannot be accepted as the authorized legislative act of the
state committee of public health.

There is no provision of statute law whereby a minority of the committee of public health may
exercise the legislative power as to minor details of administration committed to it by the
Legislature, and it is clear that such power, having been committed to the aggregate of the members
composing the committee, cannot by it be delegated elsewhere, or to any number of individuals
acting separately. Of course, a quorum duly met may exercise the power of the committee. But a
quorum is such number of the committee as is competent to transact its business, and that,
according to the general law of such bodies, is a majority of the committee. The point here is that
individual members of the committee, scattered about the state, cannot be counted to constitute a
quorum of a meeting of the committee which in fact they did not attend. This proposition has been
often stated, is clearly restated by the Supreme Court of the United States in United States v.
Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321, and further argument is hardly necessary. The sum
of it is that, in the absence of legislative authority to a different effect, a majority of the members
must attend any meeting of the committee called for legislative purposes, otherwise there is no
committee competent to act, but a majority of those present, when legally met, may bind all the
rest. In other words, a major part of the whole is necessary to constitute a quorum, and a majority
of the quorum may act. Says the Supreme Court of the United States, quoting from Chancellor
Kent:

"There is a distinction taken between a corporate act to be done by a select and definite body as by
a board of directors [in this case the committee of public health], and one to be performed by the
constituent members. In the latter case, a majority of those who appear may act; but in the former,
a majority of the definite body must be present, and then a majority of the quorum may decide."

See cases referred to by the court in United States v. Ballin, supra, on pages 7 and 8 of the report.
Quoting the language of the Supreme Court of Pennsylvania, "congregated deliberation is deemed
essential." Commonwealth v. Cullen, 13 Pa. 133, 53 Am. Dec. 450.

Section 1048 of the Code of 1923, to which for convenience we refer, provides that —

"When the state board of health [the medical association of the state of Alabama, Code § 1046] is
not in session said state committee of public health shall act for said board and have and discharge
all the prerogatives and duties of said board, including the adoption and promulgation of rules and
regulations provided for in this chapter [the chapter on Health and Quarantine]. When said

26
committee is not in session the state health officer shall act for said board and said committee and
shall report to the said board," etc.

And subsection 6 of section 1051 of the Code, to which we have before referred, provides that the
state board of health shall have authority and jurisdiction to "adopt and promulgate rules and
regulations providing proper methods and details for administering the health and sanitary laws of
the state," etc.

We find nothing in the foregoing provisions of the statute law to derogate anything from what we
have said on the authority of United States v. Ballin and the cases there cited and discussed.

Upon consideration of the authorities on the subject and the reason of the matter, we feel
constrained to hold that the alleged rules and regulations governing the impounding of waters have
not the authority of law. They were therefore properly excluded by the trial court, and, being
excluded, the principles decided in Meharg v. Alabama Power Co., and the other cases in that line
to which we referred in the outset, left no standing room for appellant in the trial court.

Other assignments of error need not be discussed. If there was error as to them, it was error without
injury. It results that the judgment appealed from must be affirmed.

Affirmed.

GARDNER, MILLER, and BOULDIN, JJ., concur.

On Rehearing.

SAYRE, J.
Appellant now refers with emphasis to subdivision 7 of section 1136 of the Code — that section
having had no more than cursory mention in the original briefs — as authority for the proposition
that appellee's dam and the conditions created by it, as alleged in the original counts of the
complaint, constituted a nuisance without regard to the attempted exercise by the board of health
or its committee of public health in making rules and regulations, and hence that the demurrers to
these counts were erroneously sustained. But the court, considering the subsection in connection
with other parts of the chapter on Health and Quarantine, where the subsection is found, and the
history of the legislation there expressed, entertains the opinion that the subsection, in its
concluding clause at least — that being the clause under which appellant would justify its
contention — was not intended of its unaided force to declare a new cause of civil liability, but
rather to define the powers of the board of health, and to provide machinery for the appropriate
exercise of those powers. The subsection, read in connection with the general introductory clause
of the section, is:

"The following things, conditions and acts, among others, are hereby declared to be public
nuisances per se, menacing public health and unlawful: * * * (7) The conducting of a business,
trade, industry, or occupation, or the doing of a thing, not inherently insanitary or a menace to
public health in such a manner as to make it a menace or likely to become a menace to public
health."

In that connection we note subdivision 8 of the same section, which reads as follows:

"The conducting of a business, trade or industry or occupation, or the doing of a thing, lawful but
inherently insanitary or a menace to public health, without complying with safeguards for the
protection of health as may from time to time be prescribed by the rules and regulations of the state
board of health."

We are not prepared to assert very confidently what the medical faculty would say in answering
the question whether appellee's dam (in connection with the condition produced by it) falls under

27
subsection 7 or subsection 8. But we think the terms employed by the Legislature must, in the
absence of new definition, be accepted with their customary meaning. A nuisance at law or a
nuisance per se is defined to be "an act, occupation, or structure which is a nuisance at all times
and under any circumstances, regardless of location or surroundings." 29 Cyc. 1153. Certainly
appellee's dam is not such a nuisance as that. Our judgment therefore is that, whether the dam, or
the accumulating of water in it, be ranged under one or the other of the subsections referred to,
action of the board of health was necessary to make it a nuisance per se, and that the allegation
that the dam was unlawfully or wrongfully erected was necessary to the cause of action attempted
to be stated in the first four counts of the complaint.

As for other questions of law to be considered, the court adheres to its original opinion.

Application overruled.

GARDNER, MILLER, and BOULDIN, JJ., concur.

28
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-16815 July 24, 1961

ARSENIO L. CANLAS AND ADENA GONZALES-CANLAS, petitioners,

vs.
HON. BERNABE DE AQUINO, as Judge of the Court of First Instance of Tarlac and JAIME
TAYAG,respondents.

Felimon Cajator for petitioners.

Renato D. Tayag for respondents.

CONCEPCION, J.:

Original action for a writ of certiorari to annul an order of the Court of First Instance of Tarlac.

On December 11, 1957, petitioners herein, Arsenio L. Canlas and Adena Gonzales-Canlas, who are
husband and wife, as well as doctors of medicine by profession, were granted a permit for the
construction of a house in the barrio of San Jose, municipality of Concepcion, province of Tarlac.
Their purpose was to establish, operate and maintain in said house a private hospital with an
accommodation of fifteen (15) beds, two (2) of which would be for charity cases. When half of the
house was finished, in January 1958, petitioners opened therein a medical clinic of five (5)
emergency beds, one of which was for charity. Subsequently, or on December 1, 1958, they applied
from the Director of Hospitals for authority to operate and maintain the aforementioned hospital.
Soon thereafter, or on January 14, 1959, the Provincial Board of Tarlac passed a resolution (No. 64)
recommending approval of said application, which was approved on August 24, 1959. Meanwhile, or
on October 30, 1958, respondent Jaime Tayag had obtained a permit to construct a ricemill in front
of the Canlas Clinic, just across the street. It appears, however, that Chapter VII of Municipal
Ordinance No. 44 of Concepcion, Tarlac, requires a sanitary permit issued by the local health officer,
for operation of any establishment which may exhale foul odor or cause physical discomfort to such
degree as to constitute a nuisance. Purporting to act pursuant to such ordinance, the municipal
health officer of Concepcion revoked or cancelled the aforementioned permit issued to Tayag, who
was advised of this action in a letter of said officer reading:

A permit for a construction of a Rice Mill at Bo. San Jose Concepcion, Tarlac, has been
granted to you on September 1959, on condition that Municipal Ordinances are strictly
served.

In view of the fact that we found out a Clinic of Dr. Arsenio Canlas has been established
since January, 1958, and according to Sec. 111 Chapter VII Ordinance No. 44 Series of
1952, the operation of a Rice Mill in the above mentioned place is contrary to this Ordinance,
thus repealing permit given to you on September 22, 1959.

I hope you will not continue the construction of your Rice Mill in accordance with Municipal
Ordinance, attached is a true copy of said Ordinance.

Inasmuch as Tayag was about to proceed with the construction of his ricemill despite this
communication, on or about October 19, 1959, petitioners herein filed, against him, a complaint,
which was docketed as Civil Case No. 3512 of the Court of First Instance of Tarlac, setting forth
therein the above facts and alleging that should the ricemill be eventually constructed, the operation
of the Canlas Clinic — "which has been in actual operation since January, 1959, rendering
hospitalization, medical aid, cure and treatment, not only to the people of the municipality of
Concepcion, but, also, to the people of the neighboring municipalities" — would have to be stopped
altogether "because the smoke, vapor, palay husk dust and dirt and the constant noise generated
from the operation of said ricemill would not be conducive to the quiet, cleanliness, tranquillity and
fresh air and wholesome atmosphere needed and prescribed in the hospital area, its environs and
surroundings for the health, comfort and well-being of its inmates and patients", and "that the Bureau
of Hospitals has made it clear that if and should the said ricemill be eventually constructed and begin
operation, the permit already issued for the said hospital . . .would be revoked and cancelled and the

29
Canlas Clinic itself would be ordered closed", thereby working irreparable loss, damage and injury to
petitioners herein, who had already spent not less than P40,000 for the construction of their
aforementioned house and the equipment necessary for the operation of said hospital.

On October 22, 1959, the Court of First Instance of Tarlac, then presided over by Hon. Zoilo Hilario,
Judge, issued an order authorizing the issuance of a writ of preliminary injunction, enjoining
respondent Tayag from constructing the aforementioned ricemill, upon the filing of a bond in the sum
of P1,000.00. Soon later, or on November 4, 1959, respondent Tayag filed an unverified motion for
the dissolution of said writ of preliminary injunction, alleging that the same "would work great
damage to the defendant who has already spent a considerable sum of money", and that petitioners
"can be fully compensated for any damages that they may suffer as respondent Tayag "is not only
solvent but is willing to put up a bond in such amount as" the court may fix. Despite the opposition
filed by petitioners herein, who contested the truth of these allegations of respondent Tayag, said
court, then presided over by Hon. Bernabe de Aquino, Judge, one of the respondents herein, issued
an order dated February 4, 1960, granting said motion and dissolving the aforementioned writ of
preliminary injunction, upon the filing by Tayag of a bond in the sum P2,000, which was approved by
the court on February 8, 1960. A reconsideration of this order having been denied by respondent
Judge, petitioners herein instituted the present action to annul said order of February 4, 1960, upon
the ground that in issuing the same the aforementioned respondent had acted without or in excess
of his jurisdiction, as well as arbitrarily and with grave abuse of discretion, apart from prejudging said
Civil Case No. 3512.

In his answer to the petition herein, respondent Tayag maintained the legality of the order
complained of. He, likewise, annexed to said pleading, as part thereof, his answer to the main
action, in which he averred that the municipal health officer of Concepcion, Tarlac, had no authority
to revoke the building permit issued to him (Tayag) by the municipal mayor on October 30, 1959;
that on January 11, 1960, Chapter VII of Municipal Ordinance No. 14 was amended by Ordinance
No. 7, which dispensed with the same permit formerly required, and gave the local health officer no
more than the power to promulgate rules and regulations for the operation of the establishments
referred to in said Chapter VII; and that to remove doubts, the requisite building permit was reissued
to respondent Tayag on January 13, 1960.

Petitioners herein are entitled to the writ prayed for. The motion of respondent Tayag for the
dissolution of the writ of preliminary injunction issued on October 22, 1959, was unverified.
Moreover, Rule 60, section 6, of the Rules of Court, provides:

The injunction may be refused, or, if granted ex parte, may be dissolved, upon the
insufficiency of the complaint as shown by the complaint itself or upon affidavits on the part
of the defendant, which may be opposed by the plaintiff also by affidavits. It may also be
refused, or, if granted ex parte, may be dissolved, if it appears that the plaintiff is entitled to
the injunction, but the issuance or continuance thereof, as the case may be, would cause
great damage to the defendant, while the plaintiff can be fully compensated for such
damages as he may suffer, and the defendant files a bond in an amount fixed by the judge
conditioned that the defendant will pay all damages which the plaintiff may suffer by reason
of the continuance during the action of the acts complained of. If it appears that he extent of
the preliminary injunction granted is too great, it must be modified. On any of these grounds,
the defendant may object to the injunction applied for, or may move that the same be
dissolved or modified if already granted ex parte.

Instead of alleging facts establishing the presence of the conditions prescribed in this section,
respondent Tayag merely reproduced the language thereof, in his aforementioned motion, thus
relying upon abstract conclusions, without any concrete or specific premise to bear out said
conclusions. Again, although, in their opposition to said motion, petitioners impugned the accuracy of
the conclusions therein alleged, respondent Judge accepted such conclusions on their face value,
without any evidence, or, even affidavit in support thereof. Worst still, it is obvious that, the operation
of a hospital is a matter that, not only concerns its owners or operators, but also, if not more
particularly affects the health and welfare of the community, and that the damage sustained by the
latter, in consequence, either of the obstruction to the proper operation of said hospital or of its
closing, can not possibly compensated in full..

Then, too, it would appear that respondent Judge issued the order complained of on account of "very
reliable in formation" he had received privately, to the effect that "these days a ricemill can be
operated without causing any noise or emitting any smoke in such a way as (not) to be a nuisance to
the neighborhood". In his order of March 10, 1960, refusing to reconsider the order of February 4,

30
1960, respondent stated, by way of justification for his reliance upon said "information", that,
immediately after the construction of Tayag's ricemill, the Court intended to inspect the same "and
see whether it really can be operated without noise or smoke" and that, if the ricemill is smoke while
in was then found to "cause noise and emit smoke while in operation", the court would "immediately
enjoin its operation". This process of reasoning entails such a serious error of judgment as to
constitute a grave abuse of discretion amounting to excess of jurisdiction.

Indeed, the main action was filed by petitioners herein for the purpose of joining and prohibiting
Tayag from the constructing a ricemill, so that, upon the construction thereof, said action would
become futile. Besides, the intention of respondent Judge to prohibit the continuance of the
operation of said ricemill, should it later be found to be a nuisance, is not sufficient to offset the harm
already done to the operation of the hospital, specially the injury suffered by the patients therein and
the public in general, which are hardly susceptible of estimation or compensation. Needless to say,
by permitting Tayag to construct his building, and purchase and install the machinery for the
operation of the ricemill, respondent Judge exposed him to much greater damage than that which
could possibly have resulted had the writ of preliminary injunction been maintained until the final
disposition of the case.

WHEREFORE,, the aforementioned order of February 4, 1960 is hereby annulled, with costs against
respondent Jaime Tayag. It is so ordered.

Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, De Leon and Natividad,
JJ., concur.
Bautista Angelo, J., is on leave.

31
 EN BANC

[G.R. No. L-6600. July 30, 1954.]

HEIRS OF JUAN BONSATO and FELIPE BONSATO, Petitioners, v. COURT OF APPEALS and JOSEFA
UTEA, ET AL., Respondents.

Benedicto C. Balderrama for petitioners. .

Inocencio Rosete for Respondents.

SYLLABUS

1. WILLS AND DONATIONS "MORTIS CAUSA" ; NO ONE MY BOTH DONATE AND RETAIN. — Despite the
widespread use of the term "donations mortis causa," it is well-established at present that the Civil Code of
1989, in its article 620, broke away from the Roman Law tradition, and followed the French doctrine that no
one may both donate and retain, by merging the erstwhile donations mortis causa with the testamentary
dispositions, thus suppressing said donations as an independent legal concept. The term "donations mortis
causa" as now commonly employed is merely a convenient name to designate those dispositions of property
that are void when made in the form of donations.

2. ID.; ID.; REQUISITES OF A DISPOSITION "MORTIS CAUSA." — A disposition post mortem should reveal
the following characteristics; (1) the transferor retains the ownership (full or naked) and control the
property while alive; (2) the transfer is revocable, before his death, by the transferor at will, ad nutum; and
(3) the transfer should be void if the transfer should be void if the transferor should survive the transferee.

3. ID.; DONATIONS "INTER VIVOS." — If the donor conveys the ownership and only reserves for himself
during his lifetime the owner’s share of the fruits of procedure, and the deed expressly declares the act to be
"irrevocable", it s not a donation mortis causa, but a conveyance inter vivos.

4. DONATIONS "MORTIS CAUSA" ; CASES THEREON. — In the cases held by the Supreme Court to be
transfers mortis causa and declared invalid for not having been executed with the formalities of testaments,
the circumstances clearly indicated the transferor’s intention to defer the passing of title until after his
death. (Cariño v. Abaya, 70 Phil., 182; Bautista v. Sabiniano, 49 Off. Gaz. (No. 2), p. 549; David v. Sison,
42 Off Gaz., p. 3155.)

5. DONATIONS "INTER VIVOS" ; REQUISITES . — The solemnities required for a donation inter vivos are
those prescribed by article 633 of the Civil Code of 1989 (reproduced in article 749, new Civil Code).

DECISION

REYES, J.B.L., J.:

This is a petition for review of a decision of the Court of Appeals holding two deeds of donation executed on
the first day of December, 1939 by the late Domingo Bonsato in favor of his brother Juan Bonsato and of his
nephew Felipe Bonsato, to be void for being donations mortis causa accomplished without the formalities
required by law for testamentary dispositions.

The case was initiated in the Court of First Instance of Pangasinan (Case No. 8892) on June 7, 1945, by
respondents Josefa Utea and other heirs of Domingo Bonsato and his wife Andrea Nacario, both deceased.
Their complaint (for annulment and damages) charged that on the first day of December, 1949, Domingo
Bonsato, then already a widower, had been induced and deceived into signing two notarial deeds of
donations (Exhibits 1 and 2) in favor of his brother Juan Bonsato and of his nephew Felipe Bonsato,
respectively, transferring to them several parcels of land covered by Tax Declaration Nos. 5652, 12049, and
12052, situated in the municipalities of Mabini and Burgos, Province of Pangasinan, both donations having
been duly accepted in the same act and documents. Plaintiffs likewise charged that the donations were
mortis causa and void for lack of the requisite formalities. The defendants, Juan Bonsato and Felipe Bonsato,
answered averring that the donations made in their favor were voluntarily executed in consideration of past
services rendered by them to the late Domingo Bonsato; that the same were executed freely without the
use of force and violence, misrepresentation or intimidation; and prayed for the dismissal of the case and for
damages in the sum of P2,000.

After trial, the Court of First Instance rendered its decision on November 13, 1949, finding that the deeds of

32
donation were executed by the donor while the latter was of sound mind, without pressure or intimidation;
that the deeds were of donation inter vivos without any condition making their validity or efficacy dependent
upon the death of the donor; but as the properties donated were presumptively conjugal, having been
acquired during the coverture of Domingo Bonsato and his wife Andrea Nacario, the donations were only
valid as to an undivided one-half share in the three parcels of land described therein.

Thereupon the plaintiffs duly appealed to the Court of Appeals, assigning as primary error the holding of the
court below that the donations are inter vivos; appellants contending that they were mortis causa donations,
and invalid because they had not been executed with the formalities required for testamentary disposition.

A division of five of the Court of Appeals took the case under consideration, and on January 12, 1953, the
majority rendered judgment holding the aforesaid donations to be null and void, because they were
donations mortis causa and were executed without the testamentary formalities prescribed by law, and
ordered the defendants-appellees Bonsato to surrender the possession of the properties in litigation to the
plaintiffs-appellants. Two Justices dissented, claiming that the said donations should be considered as
donations inter vivos and voted for the affirmance of the decision of the Court of First Instance. The donees
then sought a review by this Court.

The sole issue submitted to this Court, therefore, is the juridical nature of the donations in question. Both
deeds (Exhs. 1 and 2) are couched in identical terms, with the exception of the names of the donees and the
number and description of the properties donated. The principal provisions are the following: jg c:chan rob les.com. ph

"ESCRITURA DE DONATION"

"Yo, Domingo Bonsato, viudo de Andrea Nacario, mayor de edad, vecino y residente del municipio de Agno,
Pangasinan, I.F., por la presente declaro lo siguiente: jgc:c hanro bles. com.ph

"Que mi sobrino Felipe Bonsato, casado, tambien mayor de edad, vecino de Agno, Pangasinan, I.F., en
consideracion de su large servicio a Domingo Bonsato, por la presente hago y otorgo una donacion perfecta
a irrevocable consumada a favor del citado Felipe Bonsato de dos parcelas de terreno palayero como se
describe mas abajo.

(Description omitted)

"Que durante su menor de edad de mi citado sobrino Felipe Bonsato hasta en estos dias, siempre me ha
apreciado y estimado come uno de mis hijos y siempre ha cumplido todas mis ordenes, y por esta razon
bajo su pobriza sea movido mi sentimiento para dar una recompensa de sus trabajos y aprecios a mi favor.

"Que en este de 1939 el donante Domingo Bonsato ha entregado a Felipe Bonsato dichos terrenos donados
y arriba citados pero de los productos mientras vive el donante tomara la parte que corresponde como
dueño y la parte como inquilino tomara Felipe Bonsato.

"Que en vista de la vejez del donante, el donatario Felipe Bonsato tomara posesion inmediatamente de
dichos terrenos a su favor.

"Que despues de la muerte del donante entrara en vigor dicha donacion y el donatario Felipe Bonsato tendra
todos los derechos de dichos terrenos en concepto de dueño absoluto de la propiedad libre de toda
responsibilidad y gravamen y pueda ejercitar su derecho que crea conveniente.

"EN TESTIMONIO DE TODO LO CUAL, signo la presente en Agno, Pangasinan, I. F., hoy dia 1. ° de
Diciembre, 1939.

DOMINGO (His thumbmark) BONSATO

"Yo, Felipe Bonsato, mayor de edad, casado, Vecino de Mabini, Pangasinan, I.F., declaro por la presente que
acepto la donacion anterior otorgado por Domingo Bonsato a mi favor.

(Sgd.) FELIPE BONSATO

SIGNADO Y FIRMADO EN PRESENCIA DE: chanrob1es v irt ual 1aw l ibra ry

(Sgd.) ILLEGIBLE (Sgd.) ILLEGIBLE

The majority of the special divisions of five of the Court of Appeals that took cognizance of this case relied
primarily on the last paragraph, stressing the passage: jgc:chanrob les.co m.ph

"Que despues de la muerte del donante entrara en vigor dicha donacion . . ." cralaw virtua1aw l ib rary

while the minority opinion lay emphasis on the second paragraph, wherein the donor states that he makes
"perfect, irrevocable, and consummated donation" of the properties to the respective donees, petitioners
herein.

Strictly speaking, the issue is whether the documents in question embody valid donations, or else legacies
void for failure to observe the formalities of wills (testaments). Despite the widespread use of the term
"donations mortis causa," it is well-established at present that the Civil Code of 1889, in its Art. 620, broke
away from the Roman Law tradition, and followed the French doctrine that no one may both donate and

33
retain ("donner at retenir ne vaut"), by merging the erstwhile donations mortis causa with the testamentary
dispositions, thus suppressing said donations as an independent legal concept.

ART. 620. Donations which are to become effective upon the death of the donor partake of the nature of
disposals of property by will and shall be governed by the rules established for testamentary successions.

Commenting on this article, Mucius Scaevola (Codigo Civil, Vol. XI, 2 parte, pp. 573, 575 says: jgc:chanrob les.com .ph

"No ha mucho formulabamos esta pregunta: Subsisten las donaciones mortis causa como institucion
independiente, con propia autonomia y propio compo jurisdiccional? La respuesta debe ser negativa.

. . .Las donaciones mortis causa se consevan en el Codigo como se conserva un cuerpo fosil en las vitrinas
de un Museo. La asimilacion entre las donaciones por causa de muerte y las transmissiones por testamento
es perfecta."cralaw virt ua1aw lib ra ry

Manresa, in his Commentaries (5th ed.) , Vol. V. p. 83, expresses the same opinion: jgc:chan roble s.com.p h

"La disposicion del articulo 620 significa, por lo tanto: 1. °, que han desaparecido las llamadas antes
donaciones mortis causa por lo que el Codigo no se ocupa de ellas su absoluto; 2. °, que toda disposicion de
bienes para despues de la muerte sigue las reglas establecidas para la sucesion testamentaria." cralaw virt ua1aw li bra ry

And Castan, in his Derecho Civil, Vol. IV (7th Ed., 1953), p. 176, reiterates: chan rob1e s virtual 1aw l ibra ry

(b) Subsisten hoy en nuestro derecho las donaciones mortis causa? De lo que acabamos de decir se
desprende que las donaciones mortis causa han perdido en el Codigo Civil su caracter distintivo y su
naturaleza y hay que considerarlos hoy como una institucion suprimida, refundida en el legado . . . Las tesis
de la desaparicion de las donaciones mortis causa en nuestro Codigo Civil, acusada ya precedentemente por
el proyecto de 1851 puede decirse que constituye una communis opinion entre nuestros expositores, incluso
los mas recientes." cralaw virtua1aw l ibra ry

We have insisted on this phase of the legal theory in order to emphasize that the term "donations mortis
causa" as commonly employed is merely a convenient name to designate those dispositions of property that
are void when made in the form of donations.

Did the late Domingo Bonsato make donations inter vivos or dispositions post mortem in favor of the
petitioners herein? If the latter, then the documents should reveal any or all of the following
characteristics: chanro b1es vi rt ual 1aw li bra ry

(1) Convey no title or ownership to the transferee before the death of the transferor; or, what amounts to
the same thing, that the transferor should retain the ownership (full or naked) and control of the property
while alive (Vidal v. Posadas, 58 Phil., 108; Guzman v. Ibea, 67 Phil., 633);

(2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but
revocability may be provided for indirectly by means of a reserved power in the donor to dispose of the
properties conveyed (Bautista v. Sabiniano, G. R. L-4326, November 18, 1952);

(3) That the transfer should be void if the transferor should survive the transferee.

None of these characteristics is discernible in the deeds of donation, Exhibits 1 and 2, executed by the late
Domingo Bonsato. The donor only reserved for himself, during his lifetime, the owner’s share of the fruits or
produce ("de los productos mientras viva el donante tomara la parte que corresponde como dueño"), a
reservation that would be unnecessary if the ownership of the donated property remained with the donor.
Most significant is the absence of stipulation that the donor could revoke the donations; on the contrary, the
deeds expressly declare them to be "irrevocable", a quality absolutely incompatible with the idea of
conveyances mortis causa where revocability is of the essence of the act, to the extent that a testator can
not lawfully waive or restrict his right of revocation (Old Civil Code, Art. 737; New Civil Code, Art. 828).

It is true that the last paragraph in each donation contains the phrase "that after the death of the donor the
aforesaid donation shall become effective" (que despues de la muerte del donante entrara en vigor dicha
donacion"). However, said expression must be construed together with the rest of the paragraph, and thus
taken, its meaning clearly appears to be that after the donor’s death, the donation will take effect so as to
make the donees the absolute owners of the donated property, free from all liens and encumbrances; for it
must be remembered that the donor reserved for himself a share of the fruits of the land donated. Such
reservation constituted a charge or encumbrance that would disappear upon the donor’s death, when full
title would become vested in the donees.

"Que despues de la muerte del donante entrara en vigor dicha donacion y el donatario Felipe Bonsato tendra
todos los derechos de dichos terrenos en concepto de dueño absoluto de la propiedad libre de toda
responsibilidad y gravamen y puede ejercitar su derecho que crea conveniente." cralaw virt ua1aw lib ra ry

Any other interpretation of this paragraph would cause it to conflict with the irrevocability of the donation
and its consummated character, as expressed in the first part of the deeds of donation, a conflict that should
be avoided (Civ. Code of 1889, Art. 1285; New Civil Code, Art. 1374; Rule 123, sec. 59, Rules of Court).

"Que mi sobrino FELIPE BONSATO, casado, tambien mayor de edad, vacino de Agno, Pangasinan, I.F., en
consideracion de su largo servicio a Domingo Bonsato, por la presente hago y otorgo una donacion perfecta

34
e irrevocable consumada a favor del citado Felipe Bonsato de dos parcelas de terreno palayero como se
describe mas abajo." cralaw virtua 1aw lib rary

In the cases held by this Court to be transfers mortis causa and declared invalid for not having been
executed with the formalities of testaments, the circumstances clearly indicated the transferor’s intention to
defer the passing of title until after his death. Thus, in Carino v. Abaya, 70 Phil., 182, not only were the
properties not to be given until thirty days after the death of the last of the donors, but the deed also
referred to the donees as "those who had been mentioned to inherit from us", the verb "to inherit" clearly
implying the acquisition of property only from and after the death of the alleged donors. In Bautista v.
Sabiniano, 49 Off. Gaz., 549; 92 Phil., 244, the alleged donor expressly reserved the right to dispose of the
properties conveyed at any time before his death, and limited the donation "to whatever property or
properties left undisposed by me during my lifetime", thus clearly retaining their ownership until his death.
While in David v. Sison, 42 Off. Gaz. (Dec. 1946) 3155, the donor not only reserved for herself all the fruits
of the property allegedly conveyed, but what is even more important, specially provided that "without the
knowledge and consent of the donor, the donated properties could not be disposed of in any way", thereby
denying to the transferees the most essential attribute of ownership, the power to dispose of the properties.
No similar restrictions are found in the deeds of donation involved in this appeal.

That the conveyance was due to the affection of the donor for the donees and the services rendered by the
latter, is of no particular significance in determining whether the deeds Exhibits 1 and 2 constitute transfers
inter vivos or not, because a legacy may have identical motivation. Nevertheless, the existence of such
consideration corroborates the express irrevocability of the transfers and the absence of any reservation by
the donor of title to, or control over, the properties donated, and reinforces the conclusion that the act was
inter vivos. Hence, it was error for the Court of Appeals to declare that Exhibits 1 and 2 were invalid because
the formalities of testaments were not observed. Being donations inter vivos, the solemnities required for
them were those prescribed by Article 633 of the Civil Code of 1889 (reproduced in Art. 749 of the new
Code, and it is undisputed that these were duly complied with. As the properties involved were conjugal, the
Court of First Instance correctly decided that the donations could not affect the half interest inherited by the
respondents Josefa Utea, Et. Al. from the predeceased wife of the donor.

The decision of the Court of Appeals is reversed, and that of the Court of First Instance is revived and given
effect. Costs against respondents.

Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo and Concepcion, JJ.,
concur.

35
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-9449 February 12, 1915

BONIFACIA MANALO, as administratrix of the estate of the deceased Placida Manalo, plaintiff-
appellant,
vs.
GREGORIO DE MESA, defendant-appellee.

Eduardo Gutierrez Repide and Arsenio Locsin for appellant.

Pedro Guevara for appellee.

TORRES, J.:

This is an appeal brought up through a bill of exceptions by counsel for the plaintiff from the
judgment of November 19, 1912, whereby the Honorable Vicente Jocson, judge, held that the lands
described in the complaint belonged exclusively to the defendant Gregorio de Mesa and his wife,
and consequently absolved them from the complaint, with the costs of the case against the plaintiff.

On March 16, 1912, counsel for the plaintiff Bonifacia Manalo, as administratrix of the estate of the
deceased Placida Manalo, file a written complaint in the Court of First Instance of Laguna, alleging
as her first cause of action that the deceased Placida Manalo had been the owner of two parcels of
land, each planted with 300 coco palms, which she had inherited from her deceased parents and
which were located in the barrio of Palita, municipality of Alaminos, the area and boundaries of said
lands being stated in the complaint; that in 1904 the defendant Gregorio de Mesa had usurped said
two parcels of land, thereby depriving the plaintiff, as administratrix of the property of the deceased
Placida Manalo, of possession and enjoyment thereof, and had refused to deliver them to the
plaintiff in spite of repeated requests that he do so. As a second cause of action it was alleged that
ever since the said year, when the defendant had illegally entered into possession of those parcels
of land he had been harvesting the products thereof, thereby causing to the plaintiff damages which
since the usurpation have amounted to the sum of P1,600 and which still continue at the rate of
P16.66 a month. It was therefore prayed that judgment be rendered for ownership and possession of
the said lands by directing the defendant to vacate said two parcels and deliver them to the plaintiff
as judicial administratrix of the property of the deceased Placida Manalo; that said defendant pay to
the plaintiff as damages the sum of P1,600, with legal interest from the filing of the complaint, and
also the sum of P16.66 a month until the property described in the complaint be delivered to her;
also that the defendant be enjoined from entering upon the above-described land and from taking its
products or anything else belonging to the property; and that the defendant be sentenced to pay the
costs of the case.

The demurrer filed to the foregoing complaint was overruled, and thereupon counsel for the
defendant in his answer generally and specifically denied each and all of the allegations of the
complaint, alleging in special defense that the defendant was in possession of the lands described in
the complaint by having acquired them by purchase, and that the lands described therein are the
same which were the subject of litigation by the parties in civil case No. 1187 of the Court of First
Instance of Laguna. Therefore the defendant prayed that he be absolved from the complaint, with
the costs against the plaintiff.

After trial of the case and the examination of the evidence adduced by both parties, the court
rendered the decision hereinbefore mentioned. Plaintiff saved her exception and moved in writing for
a reopening of the case and the holding of a new trial, which motion was denied, with exception on
the part of the appellant. The corresponding bill of exceptions was approved and forwarded to the
clerk of this court.

In these proceedings it is necessary to determine, first, the validity and efficacy of the donation of a
tract of land made in the private document Exhibit 1 by the spouses Placida Manalo and Fernando
Regalado in favor of the spouses Gregorio de Mesa and Leoncia Manalo; second, the authenticity
and validity of the document Exhibit 2, wherein it appears that said spouses Regalado and Manalo
sold and transmitted to the spouses Gregorio de Mesa and Leoncia Manalo the ownership and
possession of a tract of land to which the said document refers.

36
In the document Exhibit 1 (rec., p. 6), written in Tagalog and thereinafter translated, it appears that
on May 10, 1903, the spouses Fernando Regalado and Placida Manalo, residing in the municipality
of San Pablo, Laguna, declare that they are now old and incapacitated for work; that the woman has
been ill for over a year and she feels that her death is approaching; that as both are without children
to inherit from them, and moreover taking into consideration that their nephew and niece, the
spouses Gregorio de Mesa and Leoncia Manalo, the latter of whom has lived with them from
childhood and has been treated by them as a daughter, have been caring for them both up to the
present time, they agree to donate to them the tract of land which they own, the location and
boundaries whereof are set forth in the document; they further state that on account of the
circumstances recited they make the donation to the exclusion of their other nephews and nieces,
and they request the donees to bear such expenses as would be incurred in case the donor Placida
Manalo should die. To this end title of ownership was made over to the donees with the injunction
that in case any claim to said land should be set up by any brother or other nephew of the donors,
said claim was to be rejected and ignored by all the authorities, for they prayed to God that He
permit none of their relatives to disturb the donees' possession of the land.

It is to be observed that the donation set forth in the said document is not an act of liberality
performed gratuitously in favor of the donees, to which article 618 of the Civil Code refers. To judge
from the voluntary statement of the donors, the donation was made on account of the services which
the donee Leoncia Manalo had rendered them since her childhood and which she and her husband
Gregorio de Mesa, after marriage, had continued to render to the donors. Moreover, the donor
spouses ratified and agreed to the donation with the condition and obligation that the donees should
meet and bear the expenses which might arise in the event of the death of the donor Placida
Manalo.

She died and her body was buried in the cemetery of that town on October 9, 1903, according to the
certified copy of the record of her interment, Exhibit B, page 3, and Gregorio de Mesa fulfilled the
obligation conditioned in the donation by paying the expenses occasioned by her death and burial.
Gregorio de Mesa so stated (p. 32) in the presence of the plaintiff Bonifacio Manalo, who did not at
the time protest, nor could she impugn or contradict the statement made by the donee, De Mesa,
who further averred that he accepted the donation and with his wife, the other donee, entered into
possession of the land donated, even in the lifetime of the donor Placida and her husband Regalado,
for the donation was made on May 10, 1903, and she died on October 9 of the same year. It further
appears that the donee De Mesa, while the donors were still living, after he had taken possession of
the land donated, made the declaration of ownership for the assessment in June of that year and
paid the land tax, according to the document Exhibit 6, page 16.

From the foregoing it is seen that this donation was made for a valuable consideration, and is
therefore subject to and governed in its nature, conditions and effects by the laws of contracts, in
accordance with the provisions of article 622 of the Civil Code.

In order to settle the question raised by the appellant that the said donation is null and void because
it was not made in a public instrument in accordance with the provisions of article 633 of the Civil
Code, and that it was recorded in a private document, Exhibit 1 (p. 6), was not sufficient, it is
necessary to consider whether or not the donation in question is governed by the provisions of the
code that treat of donations in general, or whether, being made for a valuable consideration, it falls
outside them, and thus becomes subject, as stated, to the laws of contracts, under said article 622 of
the code, and so on this hypothesis should have been recorded in a public instrument, as prescribed
by article 633.

There can be no doubt that the donation in question was made for a valuable consideration, since
the donors made it conditional upon the donees' bearing the expenses that might be occasioned by
the death and burial of the donor Placida Manalo, a condition and obligation which the donee
Gregorio de Mesa carried out in his own behalf and for his wife Leoncia Manalo; therefore in order to
determine whether or not said donation is valid and effective it should be sufficient to demonstrate
that, as a contract, it embraces the conditions the law requires and is valid and effective, although
not recorded in a public instrument.

Under article 1278 of the Civil Code, contracts are binding when entered in to between the parties,
whatever may be the form in which they may have been executed, provided the essential conditions
required for their validity exist, as set forth in article 1261 of the same code.

The donation in question was recorded in a private instrument executed by the donors and signed by
three witnesses, the obligation or valuable consideration imposed upon the donee being stated

37
therein. If, in accordance with the provisions of article 622 of the Civil Code, such a donation as this
one, made for a valuable consideration, is governed by the law of contracts, and if these laws do not
require that the stipulations between the parties be recorded in a public instrument (inasmuch as a
contract entered into verbally is valid and effective and produces all its consequences under the
law), then with greater reason the said donation for a valuable consideration set forth in the said
document Exhibit 1 (p. 6), although this was a private document, must be respected, especially
when under article 1225 of the Civil Code a private instrument duly authenticated has the same force
as a public instrument between those who sign it and their successors in interest.

By means of the donation of the parcel of land hereinbefore mentioned, made by the donors for a
valuable consideration, the former ceded or transferred the said parcel of land to the donees, and,
being a contract legally entered into between the interested parties, it does not require for its validity
and efficacy that it should have been recorded in a public instrument. Even though the value of the
land donated does not exceed 1,500 pesetas, it is a fact that said donation was reduced to writing, at
least in a private document; and therefore it comes under the rules fixed in section 335 of the Code
of Civil Procedure, since the donation for a valuable consideration, regarded in law as a contact, was
recorded in a document legalized by the donors and the signatures of three witnesses who attested
the genuineness of the act performed by said donors.

The supreme court of Spain, in passing upon appeals under article 1778 (1278) of the Civil Code,
has in its decisions of July 4, 1899, and October 19, 1901, laid down the following principle:
"Contracts are binding, whatever may be the form in which they were made, if the conditions
essential for their validity as specified in detail by article 1278 of the Civil Code concur in them; from
which principle it follows that upon the validity and not upon the outward formalities required by the
laws for other distinct purposes depends exclusively the efficacy of the contract between the parties
thereto, who can therefore reciprocally require the fulfillment of the obligations agreed upon; and this
is confirmed by article 1279, which does not subordinate the efficacy of the contract to the execution
of a public instrument, in the cases wherein the law requires it."

In another decision of the same high Spanish court it is stated: "Although the provisions of article
1279 of the Civil Code, in connection with No. 1 of article 1280, do not operate against the validity of
the contracts not the validity of the acts voluntarily performed by the parties for the fulfillment thereof,
even before the execution of the corresponding public instrument, yet from the moment when any of
the contracting parties invoke said provisions it is evident that under them the execution of the public
instrument must precede the determination of the other obligations derived from the contract."
(Decision of April 17, 1897.)

In the decision in the case of Sison vs. Ramos (13 Phil. Rep., 54), the following is stated:

A contract executed by both parties with all the requisites prescribed by article 1261 of the
Civil Code is a perfect, effective and binding contract, although the same has been executed
as a private document only. (Art. 1278.)

The legalization of a contract by a public instrument and its registration are not essential
requisites, but mere conditions of form or solemnities imposed by the law in order that the
said contract may be effective as against third parties, and the agreement executed in the
form of a deed and inscribed in the registry may be respected, according to the doctrine laid
down by the supreme court of Spain relating to the application of certain articles of the Civil
Code, which is also in force in these Islands.

It is not within the scope of article 1280 of the said Code to require that a contract shall
appear in a public document, in order to prove the dominion, inasmuch as, under article 1278
of the same code, all contracts which contain the conditions required for their validity by
article 1261 produce full effect as between the contracting parties without prejudice to their
right to demand and obtain that they be set out in a public instrument, as provided by article
1279; the absence of said requisite can not be availed of by either of such parties and much
less by a third person, to deny the existence and reality of the contract, when it is supported
by elements of proof admissible in law.

A donation for a valuable consideration has always been regarded, according to the provisions of
law, as a genuine contract of cession or transmission of property, provided that the condition
imposed by the donor upon the donee has been met; and so this court has held in the decision,
among others, of the case of Carlos vs. Ramil (20 Phil. Rep., 183), wherein this principle was
established:

38
 When two persons advanced in years, being entirely alone and requiring the care of younger
people, enter into a contract whereby it is agreed that, in consideration of such care during
the lifetime of the former, they transferred their real estate to the persons thus caring for
them, such a contract does not constitute a donacion remuneratoria but a donacion con
causa onerosa, and in governed by the law of contracts and not that of donation.

The authenticity of the document Exhibit 1, setting forth said donation, is impugned by the plaintiff, a
sister of the deceased donor, yet notwithstanding that her allegations lack proof, the record contains
conclusive evidence of the genuineness and legitimacy of said donation, for the plaintiff herself
witnessed the execution of said document and signed it together with two other witnesses. Such is
the statement of one of them, Felipe Bondad, who declares (pp. 23-27) that he is a first cousin of the
donor Placida Manalo, and therefore of the plaintiff; that he was present when the said document
Exhibit 1 was executed by the spouses Placida Manalo and Fernando Regalado; that the plaintiff
Bonifacia Manalo and Hermenegildo Bondad were also present; that he saw the latter, as well as
Bonifacia Manalo, sign; that even though the donor Placida was ill she was in her right mind and
possessed of her mental faculties, and signed merely with a mark beside her name, as did also her
husband Regalado as they could apparently neither write nor sign; but the plaintiff avers that her
sister Placida could write, although she was unable to submit any document wherein Placida's
signature appears.

Furthermore, the plaintiff Bonifacia disowned the signature which appears at the bottom of the
document Exhibit 1, wherefore the defendant exhibited the document Exhibits 3 and 5, wherein
appear authentic signatures of Bonifacia Manalo; he also called attention to the latter's signature
affixed to the complaint Exhibit 4, for the purpose of demonstrating the authenticity and genuineness
of her signature in the said document Exhibit 1. There is no ground for disturbing the lower court's
finding that the signature, appearing in said document and disowned by Bonifacia Manalo, was
written by her.

With reference to the parcel of land sold to the defendant, indicated by the letter "A" and claimed by
the plaintiff as judicial administrative of the property of the deceased Placida Manalo, as property
belonging to the intestate estate of the deceased, notwithstanding the groundless allegations of the
plaintiff the record fully demonstrates that the spouses Gregorio de Mesa and Leoncia Manalo are
now the lawful owners and possessors of said parcel of land to which paragraph A of the complaint
refers since they acquired it in a legal manner from the deceased spouses Fernando Regalado and
Placida Manalo, as appears in the document Exhibit 2, written in Tagalog (p.8) and thereinafter
translated.

In that document the said spouses Regalado and Manalo recite they are the owners of the said
parcel of land, planted with coco palms, the location and boundaries whereof are set forth; that they
had acquired it by purchase from a third party whom they name; that as they are now old and have
no children to inherit from them, and as the woman is ill and needs money for her subsistence, they
agree to sell said parcel of land on the east side, planted with six rows of coco palms toward the
western part, to their nephew and niece, Gregorio de Mesa and his wife Leoncia Manalo for the sum
of P150, there in hand delivered; that thereupon they renounced all their rights to the land thus sold
unconditionally to their said nephew and niece, making delivery of the tract so that the latter might
enter into possession thereof; and to that end they executed the said document on March 20, 1903,
in the presence of the witnesses Crisanto de Mesa, Felipe Bondad, Gregorio Bondad, Hermenegildo
Bondad, and Victor Suarez.

This sale, as has been seen took place some months before the death of the vendor Placida
Manalo, who died on October 8 of the same year 1903. By virtue of the acquisition of the tract the
defendant and his wife forthwith took possession thereof, made declaration of their ownership in
June of 1903 for the assessment and paid the corresponding land tax, while the vendors were still
living, nor did the latter declare the land to be theirs or pay the tax thereon, as the husband did for
his other lands. Fernando Regalado died a year after his wife's death; and it further appears that at
the date of the complaint the vendee spouses had been in possession of the land so acquired for
over eight years and that, since they had entered into possession of the land they had so purchased
and that which they had received under donation title, they had increased the number of coco palms
growing thereon.

The witness Felipe Bondad, one of those who were present at the execution of said document of
sale, No. 2, confirms the authenticity thereof and the genuineness of the contract therein recorded,
as well as the presence of the contracting parties and the other witnesses at the time it was drawn
up; the plaintiff has not adduced any kind of evidence to demonstrate that the said document of sale

39
is false and simulated. Therefore, as the same is legal and authentic, it sufficiently establishes the
fact and genuineness of the contract of sale it sets forth, by virtue whereof the owners of the land
transmit to the vendee their ownership and right as owners. It is no bar to this that the document is a
private one, because it evidences a perfected contract within embraces all the conditions required by
the Civil Code, and by reason of the considerations hereinbefore set forth it is based on positive
provisions of law and juridical principles that are now established precedent.

Hence, the defendant in his own behalf and for his wife now possesses under title of owner the two
parcels of land improperly claimed by the plaintiff Bonifacia Manalo, since he acquired them legally
and by the means established by law for transferring and acquiring ownership.

For all these reasons, whereby the errors assigned to the judgment appealed from are refuted, said
judgment should be affirmed, as we do affirm it, with the cost against the appellants.

Arellano, C.J., Johnson and Araullo, JJ., concur.

40