G.R. No. L-31118 January 14, 1930

MARCELO FRANCISCO, plaintiff-appellant,

vs.

TIMOTEO PAEZ and RICARDO JABSON, defendants-appellees.

Gregorio Perfecto for appellant.

Prudencio A. Remigio for appellee Paez.

No appearance for other appellees.

ROMUALDEZ, J.:p

In the complaint the plaintiff claims a right of way, upon payment of indemnity, across defendant Paez's land; that the latter recognize the plaintiff's ownership of a piece of land of 23.46 square meters, that he vacate it, and that the defendant indemnify him for the damages arising from said occupation.

Defendant Paez answered with a general denial and set up the special defense of prescription. Defendant Jabson, in turn, also answered with a general denial, and by way of special defense denied that the plaintiff has any right of way over his land, because outside of it there is another possible way to the street, which is shorter and less prejudicial.

After the judicial commissioner appointed for the purpose had taken the evidence and inspected the land, the Court of First Instance of Manila decided the case as follows:

In view of the foregoing considerations, the complaint is dismissed with respect to the first cause of action. It is held that the plaintiff is the absolute owner of the piece of land mentioned in the second cause of action, with an area of 23.46 square meters and included within lot No. 13, block No. 2718 of the certificate of title issued in his favor, and he is entitled to the ownership of the small house built of strong materials by defendant Paez thereon, upon payment of its value, or to compel the defendant to purchase said land at twenty pesos (P20) per square meter. Should the plaintiff choose the first alternative, he shall pay the price to be agreed upon by and between himself and said defendant, and in default thereof, the value to be later determined by the court after hearing the evidence that might be presented in connection therewith. Defendant Paez shall pay the costs of this action. So ordered. (Pages 40 and 41, bill of exceptions.)

The plaintiff appealed from this judgment, and makes the following assignments of error:

1. In holding that the plaintiff's action to enforce his right of way over defendant Paez's land is barred by the statute of limitations.

2. In not holding that the action to enforce a right of way is imprescriptible.

3. In denying the relief sought in the complaint, respecting the right of way through Timoteo Paez's land.

The question raised in this appeal, then, is whether the plaintiff's right of way over defendant Paez's land has prescribed or is imprescriptible.

The trial court held the plaintiff's right to have been barred on the following grounds:

It has been proved that the parcels of land now belonging to defendant Ricardo Jabson originally belonged to a certain Paulino Castañeda y Francisco, married to Teodora del Mundo, who, on December 20, 1908 obtained decree No. 3138 in proceeding No. 4865, and subsequently, certificate of title No. 1449. On October 20, 1909, the parcel of land thus held by Paulino Castañeda y Francisco was subdivided by the latter into two parts, one containing 193.66 square meters, situated in the inner portion of the space between Padre Rada and Ilaya Streets, and the other containing 173.71 square meters, conterminous with said streets. The first of these parcels, that is, the interior portion, after successive transfers became the property of the plaintiff herein, and the second portion, after several transfers, also, became the property of defendant Jabson. Therefore, from October 20, 1909, when the property was subdivided into the two aforesaid portions, there arose the right of the original owners of the interior parcel to claim a right of way over the adjacent land which was then the land abutting upon P. Rada and Ilaya Streets, through which was the nearest and shortest way to said streets. Notwithstanding the fact that from that date said right arose, none of the previous owners exercised said right until the plaintiff attempted to enforce it through the complaint filed on September 1, 1927, that is, after almost eighteen years had elapsed.

Section 40 of the Code of Civil Procedure provides that the action to recover ownership or possession of real property, or an interest therein, may only be exercised within ten years after the cause of said action arises. Applying this legal provision to the facts established in this case, it is evident that the plaintiff cannot obtain the relief he seeks in his complaint because his action is barred by the statute of limitations, inasmuch as neither he nor his predecessors demanded the right of way within said limitations. (Pages 36, 37, and 38, bill of exceptions.)

The facts related by the court below are based upon the result of these proceedings. But we should not lose sight of the fact that although it is true that easements are extinguished by non-user for twenty years (article 546, No. 1, Civil Code), nevertheless, the case at bar does not deal with an easement which has been used, while the legal provisio cited is only applicable to easements which being in use are later abandoned. Here is what Manresa says on this point:

Prescription affects all easements lawfully arisen although they may not have been used. Nevertheless, the second paragraph of article 546, number 2, refers to an easement in use, for one cannot discontinue using what one has never used, and there can be no act, at least in all the cases, adverse to an inchoate easement. (4 Commentaries on the Civil Code, fourth edition, page 662.) And in speaking of legal easements, such as the one in question, the same author observes.

(c) Others, finally, may be extinguished by non-user, but only with respect to the actual form or manner in which they had been exercised, and the right or the power to claim the exercise of legal easement does not prescribe, as occurs especially in the case of the right of way and easement of aqueduct. (Emphasis ours.) (Ditto, pages 662 and 663).

The appellee also cites in support of his appeal No. 5 of said article 546 which refers to extinction of easements by waiver. It should be noted that in the case of intermittent easements, such as the right of way, the waiver must be, if not formal and solemn, at least such as may be obviously gathered from positive acts, and the mere refraining from claiming the right is not, to our mind, sufficient for the purpose. This seems to be the drift of the following commentaries made by Manresa:

There has also been some discussion as to whether the waiver should be express or implied. It may be that the act of walling up a window by the owner of the dominant estate is a plain act of implied waiver, and yet, this act does not of itself extinguish the easement, but only serves to mark the beginning of the prescription. In intermittent easements (like the one in question) the mere fact of leaving them seems to indicate a waiver, and yet, it is not sufficient to extinguish them. It seems then that as a general rule, an express waiver should be required, but without prejudice to having the courts decide in exceptional cases that there is an evident waiver, inferred from acts which reveal it beyond all doubt. (Ibid., pages 667, 668.) (Emphasis ours.)

The mere fact that the plaintiff and his predecessors refrained from claiming the easement, without any positive act to imply a real waiver, does not, in our opinion, bring the case within the provision of the aforesaid article 546, No. 5, of the Civil Code.

Our conclusion is that such a right of way, provided by the law for the benefit of private individuals, may be waived, for Manresa so declares:

Legal easements established in the interest of private individuals may be waived, but not so those of public utility. (Opus, volume and edition as aforecited, page 668.)

But the court holds, for the reasons stated above, that said article 546, No. 5, Civil Code, is not applicable to the instant case, with reference to waiver, nor is No. 2 of the same article, regarding non-user; and therefore, the plaintiff's right of way cannot be deemed extinguished.

The judgment appealed from is modified and it is held that, upon payment of the proper indemnity, the plaintiff is entitled to a right of way through the shortest and least prejudicial portion of the servient estate, from plaintiff's lot designated No. 3, in the plan Exhibit A, through defendant Timoteo Paez's lot No. 12 according to said plan, to P. Rada Street, as provided in articles 564, 565 and concordant articles of the Civil Code.

Without express pronouncement of costs. So ordered.

Avanceña, C.J., Johnson, Street, Malcolm, Villamor, Ostrand, Johns and Villa-Real, JJ., concur.

GRSI ® Copyrightregno N94-027G.R. No. L-911 March 12, 1903MAXIMO CORTES vs. JOSE PALANCA YU-TIBO

MAXIMO CORTES, plaintiff-appellant,vs.JOSE PALANCA YU-TIBO, defendant-appellant. G.R. No. L-911 March 12, 1903

Felipe G. Calderon, for appellant.

Simplicio del Rosario, for appellee.

MAPA, J.:p

This suit was brought to obtain an injunction, in accordance with the provisions of section 162 to 172 of the Code of Civil Procedure, for the purpose of restraining the continuation of certain buildings commenced by the defendant. The court below issued a preliminary injunction during the trial, but, upon, rendering final judgment, dissolved the injunction, with the costs against the plaintiff. The latter excepted to this judgment and assigns error:

In the trial the following facts were admitted without contradiction:

(1) That house No. 65 Calle Rosario, this city, property of the wife of the plaintiff, has certain windows therein, through which it receives light and air, said windows opening on the adjacent house, No. 63 of the same street; (2) that these windows have been in the existence since the year 1843 and (3) that the defendant, the tenant of the said house No. 63, has commenced certain work with the view to raising the roof of the house in such a manner that one-half of the windows in said house No. 65 has been covered, thus depriving the building of a large part of the air and light formerly received through the window. In its decision the court below practically finds the preceding facts, and further finds that the plaintiff has not proven that he has, by any formal act, prohibited the owner of house No. 63, from making improvements of any kind therein at any time prior to the complaint.

The contention of the plaintiff is that by the constant and uninterrupted use of the windows referred to above during a period of fifty-nine years he acquired from prescription an easement of light in favor of the house No. 65, and as a servitude upon house No. 63, and, consequently, has acquired the right to restrain the making of any improvements in the latter house which might in any manner be prejudicial to the enjoyment of the said easement. He contends that the easement of light is positive; and that therefore the period of possession for the purposes of the acquisition of a prescriptive title is to begin from the date on which the enjoyment of the same commenced, or, in other words, applying the doctrine to this case, from the time that said windows were opened with the knowledge of the owner of the house No. 63, and without opposition on this part.

The defendant, on the contrary, contends that the easement is negative, and that therefore the time for the prescriptive acquisition thereof must begin from the date on which the owner of the dominant estate may have prohibited, by a formal act, the owner of the servient estate from doing something which would be lawful but for the existence of the easement.

The court below in its decision held in the easement of light is negative, and this ruling has been assigned by the plaintiff as error to be corrected by this court.

A building may receive light in various manners in the enjoyment of an easement of light, because the openings through which the light penetrates may be made in one's own wall, in the wall of one's neighbor, or in a party wall. The legal doctrine applicable in either one of these cases is different, owing to the fact that, although anyone may open windows in his own wall, no one has a right to do so in the wall of another without the consent of the owner, and it is also necessary, in accordance with article 580 of the Civil Code, to obtain the consent of the other coowner when the opening is to be made in a party wall.

This suit deals with the first case; that is, windows opened in a wall belonging to the wife of the plaintiff, and it is this phase of the easement which it is necessary to consider in this opinion.

When a person opens windows in his own building he does nothing more than exercise an act of ownership inherent in the right of property, which, under article 348 of the Civil Code, empowers him to deal with his property as he may see fit, with no limitations other than those established by law. By reason of the fact that such an act is performed wholly on a thing which is wholly the property of the one opening the window, it does not in itself establish any easement, because the property is used by its owner in the exercise of dominion, and not as the exercise of an easement: "For a man," says law 13, title 31, third partida, "should not use that which belongs to him as if it were a service only, but as his own property." Coexistent with this right is the right of the owner of the adjacent property to cover up such windows by building on his own land or raising a wall contiguously to the wall in which the windows are opened (art. 581 of the same Code), by virtue of the reciprocity of rights which should exist between abutting owners, and which would cease to exist if one could do what he pleased on his property and the other could not do the same on his. Hence it is that the use of the windows opened in a wall of one's own property, in the absence of some covenant or express agreement to the contrary, is regarded as an act of mere tolerance on the part of the owner of the abutting property (judgments of the supreme court of Spain of the 17th of May, 1876; 10th of May, 1884; 30th of May, 1890), and does not create any right to maintain the windows to the prejudice of the latter (judgment of the supreme court of Spain of the 13th of June, 1877). The mere toleration of such an act does not imply on the part of the abutting owner a waiver of his right to freely build upon his land as high as he may see fit, nor does it avail the owner of the windows for the effects of possession according to article 1942 of the Civil Code, because it is a mere possession at will. From all this it follows that the easement of light with respect to the openings made in one's own edifice does not consist precisely in the fact of opening them or using them, inasmuch as they may be covered up at any time by the owner of the abutting property, and, as Manresa says in his commentaries on the Civil Code, "there is no true easement as long as the right to impede its use exists." The easement really consists of in prohibiting or restraining the adjacent owner from doing anything which may tend to cut off or interrupt the light; in short, it is limited to the obligation of not impeding the light (ne luminibus officiatur). The latter coincides in its effects, from this point of view, with the obligation of refraining from increasing the height of a building (altius non tollendi), which, although it constitutes a special easement, has for its object, at times, the prevention of any interruption of the light enjoyed by the adjacent owner.

It will be readily observed that the owner of the servient estate subject to such easement is under no obligation whatsoever to allow anything to be done on his tenement, nor to do anything there himself, but is simply restrained from doing anything thereon which may tend to cut off the light from the dominant estate, which he would undoubtedly be entitled to do were it not for the existence of the easement. If, then, the first condition is that which is peculiar to positive easements, and the second condition that which is peculiar to negative easements, according to the definition of article 533 of the Civil Code, it is our opinion that the easement of lights in the case of windows opened in one's own wall is of a negative character, and, as such, can not be acquired by prescription under article 538 of the Civil Code, except by counting the time of possession from the date on which the owner of the dominant estate may, by a formal act have prohibited the owner of the servient estate from doing something which it would be lawful from him to do were it not for the easement.

The supreme court of Spain, in its decisions upon this subject, has established these principles by a long line of cases. In its judgment of May 14, 1861, the said court holds that "the prescription of the easement of lights does not take place unless there has been some act of opposition on the part of the person attempting to acquire such a right against the person attempting to obstruct its enjoyment." The easements of light and view," says the judgment of March 6, 1875, "because they are of a negative character, can not be acquired by a prescriptive title, even if continuous, or although they may have been used for more than twenty-eight years, if the indispensable requisite for prescription is absent, which is the prohibition on the one part, and the consent on the other, of the freedom of the tenement which it is sought to charge with the easement." In its judgment of June 13, 1877, it is also held that use does not confer the right to maintain lateral openings or windows in one's own wall to the prejudice of the owner of the adjacent tenement, who, being entitled to make use of the soil and of the space above it, may, without restriction, build on his line or increase the height of existing buildings, unless he has been " forbidden to increase the height of his buildings and to thus cut off the light," and such prohibition has been consented to and the time fixed by law subsequently expired. The court also holds that it is error to give the mere existence or use of windows in a wall standing wholly on the land of one proprietor the creative force of true easement, although they may have existed from the time immemorial. Finally, the judgments of the 12th of November, 1899, and the 31st of May, 1890, hold that "as this supreme court has decided, openings made in walls standing wholly on the land of one proprietor and which overlook the land of another exist by mere tolerance in the absence of an agreement to the contrary, and can not be acquired by prescription, except by computing the time from the execution of some act of possession which tends to deprive the owner of the tenement affected of the right to build thereon." Various other judgments might be cited, but we consider that those above mentioned are sufficient to demonstrate the uniformity of the decisions upon this point. It is true that the supreme court of Spain, in its decisions of February 7 and May 5, 1896, has classified as positive easements of lights which were the object of the suits in which these decisions were rendered in cassation, and from these it might be believed at first glance that the former holdings of the supreme court upon this subject had been overruled. But this is not so, as a matter of fact, inasmuch as there is no conflict between these decisions and the former decisions above cited.

In the first of the suits referred to, the question turned upon two houses which had formerly belonged to the same owner, who established a service of light on one of them for the benefit of the other. These properties were subsequently conveyed to two different persons, but at the time of the separation of the property nothing was said as to the discontinuance of the easement, nor were the windows which constituted the visible sign thereof removed. The new owner of the house subject to the easement endeavored to free it from the incumbrance, notwithstanding the fact that the easement had been in existence for thirty-five years, and alleged that the owner of the dominant estate had not performed any act of opposition which might serve as a starting point for the acquisition of a prescriptive title. The supreme court, in deciding this case, on the 7th of February, 1896, held that the easement in this particular case was positive, because it consisted in the active enjoyment of the light. This doctrine is doubtless based upon article 541 of the Code, which is of the following tenor: "The existence of apparent sign of an easement between two tenements, established by the owner of both of them, shall be considered, should one be sold, as a title for the active and passive continuance of the easement, unless, at the time of the division of the ownership of both tenements, the contrary should be expressed in the deed of conveyance of either of them, or such sign is taken away before the execution of such deed."

The word "active" used in the decision quoted in classifying the particular enjoyment of light referred to therein, presupposes on the part of the owner of the dominant estate a right to such enjoyment arising, in the particular case passed upon by that decision, from the voluntary act of the original owner of the two houses, by which he imposed upon one of them an easement for the benefit of the other. It is well known that easements are established, among other cases, by the will of the owners. (Article 536 of the Code). It was an act which was, in fact, respected and acquiesced in by the new owner of the servient estate, since he purchased it without making any stipulation against the easement existing thereon, but, on the contrary, acquiesced in the continuance of the apparent sign thereof. As is stated in the decision itself, "It is a principle of law that upon a division of a tenement among various persons -- in the absence of any mention in the contract of a mode of enjoyment different from that to which the former owner was accustomed -- such easements as may be necessary for the continuation of such enjoyment are understood to subsist." It will be seen, then, that the phrase "active enjoyment" involves an idea directly opposed to the enjoyment which is the result of a mere tolerance on the part of the adjacent owner, and which, as it is not based upon an absolute, enforceable right, may be considered as of a merely passive character. Therefore, the decision in question is not in conflict with the former rulings of the supreme court of Spain upon the subject, inasmuch as it deals with an easement of light established by the owner of the servient estate, and which continued in force after the estate was sold, in accordance with the special provisions of article 541 of the Civil Code.

Nor is the other decision cited, of May 5, 1896, in conflict with the doctrine above laid down, because it refers to windows opened in a party wall, and not in a wall the sole and exclusive property of the owner of the dominant tenement, as in the cases referred to by the other decisions, and as in the case at bar. The reason for the difference of the doctrine in the one and the other case is that no part owner can, without the consent of the other, make in a party wall a window or opening of any kind, as provided by article 580 of the Civil Code. The very fact of making such openings in such a wall might, therefore, be the basis for the acquisition of a prescriptive title without the necessity of any active opposition, because it always presupposes the express or implied consent of the other part owner of the wall, which consent, in turn, implies the voluntary waiver of the right of such part owner to oppose the making of such openings or windows in such a wall.

With respect to the provisions of law 15, title 31, third partida, which the appellant largely relied upon in this oral argument before the court, far from being contrary to it, is entirely in accord with the doctrine of the decisions above referred to. This law provides that "if anyone shall open a window in the wall of his neighbor, through which the light enters his house," by this sole fact he shall acquire a prescriptive title to the easement of light, if the time fixed in the same law (ten years as to those in the country and twenty years as to absentees) expires without opposition on the part of the owner of the wall; but, with the exception of this case, that is to say, when the windows are not opened in the wall of the neighbor, the law referred to requires as a condition to the commencement of the running of the time for the prescriptive acquisition of the easement, that "the neighbor be prohibited from raising his house, and from thereby interrupting the light." That is to say, he must be prohibited from exercising his right to build upon his land, and cover the window of the other. This prohibition, if consented to, serves as a starting point for the prescriptive acquisition of the easement. It is also an indispensable requisite, therefore, in accordance with the law of the partidas, above mentioned, that some act of opposition be performed, in order that an easement may be acquired with respect to openings made in one's own wall.

For a proper understanding of this doctrine, it is well to hold in mind that the Code of the partidas, as well as the Roman law, clearly distinguishes two classes of easements with respect to the lights of houses, as may be seen in law 2 of title 31, of the third partida. One of them consists in "the right to pierce the wall of one's neighbor to open a window through which the light may enter one's house" (equivalent to the so-called easement of luminum of the Romans); the other is "the easement which one house enjoys over another, whereby the latter can not at any time be raised to a greater height than it had at the time the easement was established, to the end at the light be not interrupted." (Ne luminibus officiatur.) For the prescriptive acquisition of the former the time must begin, as we have seen, from the opening of the window in the neighbor's wall. As to the second, the time commences from the date on which he was "prevented from raising his house." Some of the judgments which establish the doctrine above laid down were rendered by the supreme court of Spain interpreting and applying the above cited law 15, title 31, partida 3, and therefore they can not in any sense be regarded as antagonistic to the law itself.

The question as to whether the windows of the house of the plaintiff are, or are not, so-called regulation windows, we consider of but little importance in this case, both because the authority of the decisions of the law of the partidas, above cited, refers to all kinds of windows, and not to regulation windows solely, and because the record does not disclose, nor has the appellant even stated, the requirements as to such regulation windows under the law in operation prior to the Civil Code, which he asserts should be applied and on which he relies to demonstrate that he has acquired by prescription the easement in question. With respect to the watershed which, according to the plaintiff, exists over the window in question, the record does not disclose that the same has been destroyed by the defendant. He expressly denies it on page 7 of his brief, and affirms (p. 8) that the tenant of the appellant's property himself removed it, by reason of the notice served on him; on the other hand, the judgment of the court below contains no findings with respect to this fact, nor does it disclose the former existence of any such watershed. Furthermore, the opinion which we have formed with respect to this matter, in so far as we are able to understand the merits of the case, is that this shed was a mere accessory of the window, apparently having no other purpose than that of protecting it against the inclemency of the weather; this being so, we are of opinion that it should follow the condition of the window itself, in accordance with the legal maxim that the accessory always follows the principal. The appellant contends that the shed should be regarded as a projection within the provisions of article 582 of the Code; but it is sufficient to observe that this article speaks of windows with direct views, balconies, or similar projections, in order to conclude that the article does not refer to such watersheds, which have not the slightest degree of similarity to balconies, nor are they constructed for the purpose of obtaining the view -- this being the subject-matter which this article expressly purports to control -- inasmuch as such sheds have rather the effect of limiting the scope of the view than of increasing it.

The fact that the defendant did not cover the windows of the other house adjacent No. 63 at the time he covered the windows of the appellant, a fact which the latter adduces as proof of the recognition on the part of the former of the prescriptive acquisition of the easement of the light in favor of that house, which, according to his statement, is under precisely the same conditions as the house of the plaintiff, does not necessarily imply, in our opinion, any such recognition, as it might be the result of a mere tolerance on the part of the defendant. Certainly the fact of his tolerating the use by the owner of that house of such windows, supposing the facts to be as stated, does not carry with it as a result an obligation to exercise the same forbearance with respect to the plaintiff; but whatever may be the legal status of the windows in the house referred to with respect to the house No. 63, we cannot pass upon the point, nor can we form suppositions concerning the matter for the purpose of drawing conclusions of any kind therefrom to support our opinion, for the simple reason that it is not a point at issue in the case, and more especially because the defendant not only denied the existence of the alleged easement of light in favor of the house referred to, but, on the contrary, he affirms that demand has been made that the windows in said house be closed, as may be seen on page 8 of his brief.

The point discussed in this trial being whether the plaintiff has acquired the easement which he seeks to enforce over the house of which the defendant is tenant, it is evident that the provisions of article 585 of the Civil Code can not be invoked without taking for granted the very point at issue. This article refers to cases in which, under any title, the right has been acquired to have direct views, balconies, or belvederes over contiguous property. The existence of such a right being the very point at issue, the supposition upon which the article rests is lacking, and it is therefore not in point.

As a result of the opinion above expressed, we hold:

1. That the easement of light which is the object of this litigation is of a negative character, and therefore pertains to the class which can not be acquired by prescription as provided by article 538 of the Civil Code, except by counting the time of possession from the date on which the owner of the dominant estate has, in a formal manner, forbidden the owner of the servient estate to do an act which would be lawful were it not for the easement.

2. That, in consequence thereof, the plaintiff, not having executed any formal act of opposition to the right of the owner of the house No. 63 Calle Rosario (of which the defendant is tenant), to make therein improvements which might obstruct the light of the house No. 65 of the same street, the property of the wife of the appellant, at any time prior to the complaint, as found by the court below in the judgment assigned as error, he has not acquired, nor could he acquire by prescription, such easement of light, no matter how long a time have elapsed since the windows were opened in the wall of the said house No. 65, because the period which the law demands for such prescriptive acquisition could not have commenced to run, the act with which it must necessarily commence not having been performed.

Therefore, we affirm the judgment of the court below and condemn the appellant to the payment of all damages caused to the plaintiff, and to the payment of the costs of this appeal. So ordered.

Arellano, C.J., Cooper, Willard, and Ladd, JJ., concur.

Torres, J., did not sit in this case.

ON MOTION FOR A REHEARING.

The plaintiff asks for a rehearing of the decision of the court of March 12th last upon the ground that the same contains error:

First, because the decision holds that the window opened in the plaintiff's own wall and watershed do not constitute the continuous and apparent easements of prospect, light, and ventilation, or jus projitiendi and jus spillitiendi, this ruling being in opposition to the provisions of laws 12, 14, and 15, title 31, third partida, and articles 530, 532, 533, 537, 538, 582, and 585 of the Civil Code.

This allegation is entirely unfounded, inasmuch as the decision of the court contains no declaration as to whether the windows and watershed do or do not constitute continuous and apparent easements, or jus projitiendi and jus spillitiendi. These questions were not drawn into issue by the complaint, and therefore any decision thereon one way or the other would have been mere dicta. What the court did hold was that the easement of light, when it is sought to claim such benefit from a window opened in one's own wall, as does the appellant with respect to the tenement of the defendant, belongs to the class of negative easements, and that on hold on that account the time of possession for prescriptive acquisition of the title thereto must be counted, not from the time of the opening of the windows, but from the time at which the owner thereof has executed some act of opposition tending to deprive the owner of the servient tenement of his right, under the law, build upon it to such height as he might see fit in the legitimate use of his rights of ownership. With respect to the watershed, the court held that the shed in question in the case is not included within the class of projections referred to in article 582 of the Civil Code, and certain it is that neither this article nor any of the other provisions of law cited by the appellant in his motion papers established any doctrine contrary to that laid down in the decision, either with regard to the watershed or with respect to the windows. It is not necessary to say anything further upon this point. It is sufficient to read the text of the laws cited to reach the conclusion that the assertion made by the appellant in his motion papers is entirely gratuitous.

Article 582 provides that windows with direct views, balconies, or other similar projections opening upon the tenement of one's neighbor are not permissible unless there are two meters distance between the wall in which such openings are constructed and the adjacent tenement. From this the appellant draws the conclusion that he who opens windows in his own wall without respecting the distance mentioned does not exercise an act of ownership, as stated in the decision, inasmuch as he violates an express provisions of the law.

The conclusion reached is evidently false. The appellant confounds the facts with the law -- an act of ownership with the right of ownership. The owner of a thing does not cease to be such owner because in his manner of use or enjoyment thereof he violates some provision of law. The acts which he performs, in our opinion, even if abusive or contrary to law, are in a strict sense acts of ownership, acts in the exercise of dominion, because this character is not derived from a greater or less degree of compliance with the provisions of law, but from the existence of the status of owner on the part of the person who exercises such acts. In order that the act performed by the owner of a wall in opening windows therein be a true act of ownership it is a matter of indifference whether or not the distance prescribed by article 582 of the Code has been respected, although, considered from a legal point of view, it might be an illegal act, as not complying with the conditions imposed by law.

The doctrine laid down by law 13, title 31, partida 3, cited in the decision, to the effect that "a man should not use that which belongs to him as if it were a service only, but as his own property" is of general application, and does not refer to the easements which is a property owner may establish for the benefit of his heirs, as is erroneously believed by the appellant. The very same law provides that easements which "a man imposes upon his house must be for the benefit of the tenement or thing of another, and not that of his own tenement;" and this is because things are of service to their owner by reason of dominion, and not in the exercise of a right of easement. "Res sua," says a legal maxim, "nemini jure servitutis servit."

The provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated procedure no effect with respect to possession is applicable as much as 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. Hence, it is because the use of windows in one's own wall is the result of a mere tolerance that the supreme court of Spain, in its judgment of June 13, 1877, has held that such user lacks the creative force of a true easement, although continued from time immemorial. The citation of article 1959 of the Civil Code and of law 21, title 29, partida 3, made by the petitioner, is therefore not in point, because both of these provisions of law, which refer to the extraordinary period of prescription p

SEVERO AMOR, petitioner,vs.GABRIEL FLORENTINO, ET AL., respondents. G.R. No. L-48384 EN BANC,October 11, 1943

BOCOBO, J.:p

The petitioner asks for the setting aside of the decision of the Court of Appeals which affirmed the judgment of the Court of First Instance of Ilocos Sur. The trial court declared that an easement of light and view had been established in favor of the property of the plaintiffs (respondents herein) and ordered the petitioner to remove within 30 days all obstruction to the windows of respondents' house, to abstain from constructing within three meters from the boundary line, and to pay P200.00 damages.

It appears that over 50 years ago, Maria Florentino owned a house and a camarin or warehouse in Vigan, Ilocos Sur. The house had and still has, on the north side, three windows on the upper story, and a fourth one on the ground floor. Through these windows the house receives light and air from the lot where the camarin stands. On September 6, 1885, Maria Florentino made a will, devising the house and the land on which it is situated to Gabriel Florentino, one of the respondents herein, and to Jose Florentino, father of the other respondents. In said will, the testatrix also devised the warehouse and the lot where it is situated to Maria Encarnancion Florentino. Upon the death of the testatrix in 1882, nothing was said or done by the devisees in regard to the windows in question. On July 14, 1911, Maria Encarnacion Florentino sold her lot and the warehouse thereon to the petitioner, Severo Amor, the deed of sale stating that the vendor had inherited the property from her aunt, Maria Florentino. In January, 1938, petitioner destroyed the old warehouse and started to build instead a two-story house. On March 1st of that year, respondents filed an action to prohibit petitioner herein from building higher than the original structure and from executing any work which would shut off the light and air that had for many years been received through the four windows referred to. The Court of First Instance found on the 15th of the same month that the construction of the new house had almost been completed, so the court denied the writ of preliminary injunction.

I

Inasmuch as Maria Florentino died in 1892, according to the finding of fact of the Court of Appeals, Articles 541 of the Civil Code governs this case. The facts above recited created the very situation provided for in said article, which reads as follows:

(Spanish - page 406)

Art. 551. La existencia de un signo aparente de servidumbre entre dos fincas, establecido por el propietario de ambas, se considerara, si se enjenare una, como titulo para que la servidumbre continue activa y pasivamente, a no ser que, al tiempo de separarse la propiedad de las dos fincas, se exprese lo contrario en el titulo de enajenacion de cualquiera de ellas, o se haga desaparecer acquel signo antes del otorgamiento de la escritura.

Art. 541. The existence of an apparent sign of easement between two estates, established by the proprietor of both, shall be considered, if one of them is alienated, as a title so that the easement will continue actively and passively, unless at the time the ownership of the two estates is divided, the contrary is stated in the deed of alienation of either of them, or the sign is made to disappear before the instrument is executed.

When the original owner, Maria Florentino, died in 1892, the ownership of the house and its lot passed to respondents while the dominion over the camarin and its lot was vested in Maria Encarnancion Florentino, from whom said property was later bought by petitioner. At the time the devisees took possession of their respective portions of the inheritance, neither the respondents nor Maria Encarnacion Florentino said or did anything with respect to the four windows of the respondents' house. The respondents did not renounce the use of the windows, either by stipulation or by actually closing them permanently. On the contrary, they exercised the right of receiving light and air through those windows. Neither did the petitioner's predecessor in interest, Maria Encarnacion Florentino, object to them or demand that they be close. The easement was therefore created from the time of the death of the original owner of both estates, so when petitioner bought the land and the camarin thereon from Maria Encarnancion Florentino, the burden of this easement continued on the real property so acquired because according to Article 534, "easements are inseparable from the estate to which they actively or passively pertain."

An incidental question that arises at this juncture is whether or not Article 541 applies to a division of property by succession. The affirmative has been authoritatively declared. (Manresa, "Comentarios al Codigo Civil Espanol," vol. 4, p. 619; Sentence of the Supreme Tribunal of Spain, November 17, 1911).

Petitioner assigns as an error of the Court of Appeals the supposed failure of that tribunal to pass upon his motion to consider certain allegedly new evidence to prove that Maria Florentino, the original owner of the properties, died in 1885. Petitioner alleges that Maria Florentino died in 1885 and, therefore, the Law of the Partidas should be followed in this case and not the Civil Code. However, the petitioner's contention cannot be upheld without rejecting the finding of fact made by the Court of Appeals, as follows:

Hebiendo pasado la propiedad de la casa de manposteria a los demandantes, a la muerte de Maria Florentino, ocurrida en 1892, (el demandado sostiene que fue con anterioridad a 1889) no hay duda ninguna de que los demandantes adquirieron la servidumbre mediante titulo y por prescripcion (Art. 537).

We cannot review the above finding of fact by the Court of Appeals that Maria Florentino die in 1892. The evidentiary fact from which the Court of Appeals drew the above finding is that Gregorio Florentino during the trial in 1938 testified to facts of his own personal knowledge, and he was then 58 years old, having been born in 1880. If Maria Florentino, as claimed by petitioner, had died in 1885, Gregorio Florentino would have been only 5 years of age at the time of Maria Florentino's death. The Court of Appeals therefore concluded that Maria Florentino died in 1892, when Gregorio Florentino was ten 12 years of age. We do not believe we can disturb the finding of the Court of Appeals, because its deductions as to the date of Maria Florentino's death may be right or wrong, according to one's own reasoning. In other words, its conclusion of fact from Gregorio Florentino's testimony is not necessarily and unavoidably mistaken. On the contrary, it is reasonable to believe that a person 58 years old cannot remember facts of inheritance as far back as when he was only 5 years of age.

Furthermore, the burial certificate and the gravestone, whose copy and photograph, respectively, were offered by petitioner in a motion for new trial filed in the Court of Appeals, could have been discovered by petitioner before the trial in the Court of First Instance by the exercise of due diligence. There is no reason why this evidence could be found when the case was already before the Court of Appeals, but could not be found before the trial in the Court of First Instance. It was easy, before such trial, for the petitioner to inquire from the relatives of Maria Florentino as to when she died. And having ascertained the date, it was also easy to secure the burial certificate and a photograph of the gravestone, supposing them to be really of Maria Florentino. The fact is, petitioner never tried to find out such date and never tried to secure the additional evidence till his counsel raised this issue for the first time before the Court of Appeals. That Court was therefore died in 1885. (Sec. 497, Act. 190). The petitioner's statement in his brief (p. 11) that the Court of Appeals neither passed upon his motion nor took the burial certificate and the gravestone into account is not true, because the very words of the Court of Appeals clearly show that the Court had in mind said motion and evidence when the decision was signed. The decision said: "a la muerte de Maria Florentino ocurrida en 1892 (el demandado sostiene que fue con anteriodad a 1889)" (Emphasis supplied).

Lastly, the issue as to the date of Maria Florentino's death cannot be raised for the first time on appeal. Petitioner did not in the trial court allege or prove this point. He presented this issue for the first time in the Court of Appeals. (Sec. 497, Act. 190).

Let us now consider Article 541 more closely in its application to the easement of light and view and to the easement not to build higher (altius non tollendi). These two easements necessarily go together because an easement of light and view requires that the owner of the servient estate shall not build to a height that will obstruct the window. They are, as it were, the two sides of the same coin. While an easement of light and view is positive, that of altius non tollendi is negative. Clemente de Diego states that when article 538 speaks of the time for the commencement of prescription for negative easements, "it refers to those negative easements which are the result and consequence of others that are positive, such as the easement not to build higher, or not to construct, which is indispensable to the easement of light." (Se refiere a aquellas servidumbres negativas que son sucuela y consecuencia de otras positivaas, como la de no levantar mas alto, o de no edificar, que es imprescindible para la servidumbre de luces.") ("Curso Elemental de Derecho Civil Españos, Comun y Foral," vol. 3, p. 450). This relation of these two easements should be borned in mind in connection with the following discussion of (1) the modes of establishing and acquiring easements; (2) the meaning of article 541; and (3) the doctrine in the case of Cortes vs. Yu-Tibo.

First, as to the modes of establishing and acquiring easements. According to Article 536, easements are established by law or by will of th owners. Acquisition of easements is first by title or its equivalent and seconly by prescription. What acts take the place of title? They are mentioned in Articles 540 and 541, namely, (1) a deed of recognition by the owner of the servient estate; (2) a final judgment; and (3) an apparent sign between two estates, established by the owner of both, which is the case of article 541. Sanchez Roman calls cuh apparent sign under article 541 "supletoria del titulo constitutivo de la servidumbre (Derecho Civil, vol. 3, p. 656). The same jurist says in regard to the ways of constituting easements:

(Spanish word - page 410)

In the Sentence of the Supreme Tribunal of Spain dated November 7, 1911, it was held that under article 541 of the Civil Code, the visible and permanent sign of an easement "is the title that characterizes its existence" ("es el titulo caracteristico de su existencia.")

It will thus be seen that under article 541 the existence of the apparent sign in the instance case, to wit, the four windows under consideration, had for all legal purposes the same character and effect as a title of acquisition of the easement of light and view by the respondents upon the death of the original owner, Maria Florentino. Upon the establishment of that easement of light and view, the con-comitant and concurrent easement of altius non tollendi was also constituted, the heir of the camarin and its lot, Maria Encarnacion Florention, not having objected to the existence of the windows. The theory of article 541, of making the existence of the apparent sign equivalent to a title, when nothing to the contrary is said or done by the two owners, is sound and correct, because as it happens in this case, there is an implied contract between them that the easements in question should be constituted.

Analyzing article 541 further, it sees that its wording is not quite felicitous when it says that the easement should continue. Sound juridical thinking rejects such an idea because, properly speaking, the easement is not created till the division of the property, inasmuch as a predial or real easement is one of the rights in another's property, or jura in re aliena and nobdy can have an easement over his own property, nimini sua res servit. In the instant case, therefore, when the original owner, Maria Florentino, opened the windows which received light and air from another lot belonging to her, she was merely exercising her right of dominion. Consequently, the moment of the constitution of the easement of light and view, together with that of altius non tollendi, as the time of the death of the original owner of both properties. At that point, the requisite that there must be two proprietors one of the dominant estate and another of the servient estate was fulfilled. (Article 530, Civil Code.)

Upon the question of the time when the easement in article 541 is created, Manresa presents a highly interesting theory, whether one may agree with it or not. He says:

La servidumbre encubierta, digamoslo asi, por la unidad de dueño, se hace ostensible, se revela con toda su verdadera importancia al separarse la propiedad de las fincas o porciones de finca que respectivamente deben representar el papel de predios sirviente y dominante.

The concealed easement, as it were by the oneness of the owner, becomes visible, and is revealed in all its importance when the ownership of the estate or portions of the estate which respectively should play the role of servient and dominant estates is divided.

Such a view cannot be fully accepted because before the division of the estate there is only a service in fact but not an easement in the strictly juridical sense between the two buildings or parcels of land.

We come now to the case of Cortes vs. Yu-Tibo, 2 Phil., 24 decided in 1903, Mr. Justice, later Chief Justice, Mapa speaking for the Court. Counsel for petitioner contends that the doctrine in that case is controlling in the present one. If the essential facts of the two cases were the same, there is not doubt but that the early opinion would be decisive inasmuch as it is by its cogent reasoning one of the landmarks in Philippine jurisprudence. However, the facts and theories of both cases are fundamentally dissimilar. What is more, as will presently be explained, that every decision makes a distinction between that case and the situation provided for in article 541. In that case, Cortes sought an injunction to restrain Yu-Tibo from continuing the construction of certain buildings. Cortes' wife owned a house in Manila which had windows that had been in existence since 1843. The defendant, who occupied a house on the adjoining lot, commenced to raise the roof of the house in such a manner that one-half of the windows in the house owned by plaintiff's wife had been covered. This Court, in affirming the judgment of the lower court which dissolved the preliminary injunction, held that the opening of windows through one's own wall does not in itself create an easement, because it is merely tolerated by the owner of the adjoining lot, who may freely build upon his land to the extent of covering the windows, under article 581, and that his kind of easement is negative which can be acquired through prescription by counting the time from the date when the owner of the dominant estate in a formal manner forbids the owner of the servient estate from obstructing the light, which had not been done by the plaintiff in this case.

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

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

The very decision in Cortes vs. Yu-Tibo distinguishes that case from the situation foreseen in article 541. Said this Court in that case:

It is true that the Supreme Court of Spain, in its decisions of February 7 and May 5, 1986, has classified as positive easements of light which were the object of the suits in which these decisions were rendered in cassation, and from these it might be believed at first glance, that the former holdings of the supreme court upon this subject had been overruled. But this is not so, as a matter of fact, inasmuch as there is no conflict between these decisions and the former decisions above cited.

In the first of the suits referred to, the question turned upon two houses which had formerly belonged to the same owner, who established a service of light on one of them for the benefit of the other. These properties were subsequently conveyed to two different persons, but at the time of the separation of the property noting was said as to the discontinuance of the easement, nor were the windows which constituted the visible sign thereof removed. The new owner of the house subject to the easement endeavored to free it from the incumbrance, notwithstanding the fact that the easement had been in existence for thirty-five years, and alleged that the owner of the dominant estate had not performed any act of opposition which might serve as a starting point for the acquisition of a prescriptive title. The supreme court, in deciding this case, on the 7th of February, 1896, held that the easement in this particular case was positive, because it consisted in the active enjoyment of the light. This doctrine is doubtless based upon article 541 of the Code, which is of the following tenor: "The existence of apparent sign of an easement between two tenements, established by the owner of both of them, shall be considered, should one be sold, as a title for the active and passive continuance of the easement, unless, at the time of the division of the ownership of both tenements, the contrary should be expressed in the deed of conveyance of either of them, or such sign is taken away before the execution of such deed.'

The word "active" used in the decision quoted in classifying the particular enjoyment of light referred to therein, presuposes on the part of the owner of the dominant estate a right to such enjoyment arising, in the particular cases passed upon by that decision, from the voluntary act of the original owner of the two houses, by which he imposed upon one of them an easement for the benefit of the other. It is well known that easements are established, among other cases, by the will of the owners. (Article 536 of the Code.) It was an act which was, in fact, respected and acquiesced in by the new owner of the servient estate, since he purchased it without making any stipulation against the easement existing thereon, but, on the contrary, acquiesced in the continuance of the apparent sign thereof. As is stated in the decision itself, "It is a principle of law that upon a division of a tenement among various persons in the absence of any mention in the contract of a mode of enjoyment different from that to which the former owner was accustomed such easements as may be necessary for the continuation of such enjoyment are understood to subsist." It will be seen, then, that the phrase "active enjoyment" involves an idea directly opposed to the enjoyment which is the result of a mere tolerance on the part of the adjacent owner, and which, as it is not based upon an absolute, enforceable right, may be considered as of a merely passive character. (2 Phil., 29-31).

Finally, the Yu-Tibo case was decided upon the theory if the negative easement of altius non tollendi, while the instant case is predicated on the idea of the positive easement of light and view under article 541. On this point, suffice it to quote from Manresa's work. He says:

Que en las servidumbres cuyo aspecto positivo aparece enlazado al negativo, asi como al efecto de la precripcion ha de considerarse prefente el aspecto negativo, al efecto del art. 541 basta atender al aspecto positivo, y asi la exitencia de huecos o ventanas entre dos fincas que fueron de un mismo dueño es bastante para considerar establecidas, al separarse la propiedad de esas fincas, las servidumbres de luces o vista, y con ellas las de no edificar on no levantar mas ato, porque sin estas no prodrian existir aquellas.

That in easements whose positive aspect appears tied up with the negative aspect, just as for the purposes of prescription the negative aspect has to be considered preferential, so for the purposes of Article 541 it is sufficient to view the positive aspect, and therefore the existence of openings or windows between two estates which belonged to the same owner is sufficient to establish, when the ownership of these estates is divided, the easement of light or view, and with them the easements of altius non tollendi because without the latter, the former cannot exists.

There are several decisions of the Supreme Court of Spain which have applied Article 541. Some of them are those of February 7, 1986; February 6, 1904; May 29, 1911; and November 17, 1911.

The sentence of February 7, 1896, dealt with windows established in one house by the original of two houses. When he died, the two houses were adjudicated to different heirs. The court held that there was an easement of light.

Considerando que, segun lo establecido por este Supremo Tribunal en repetidas sentencias, y consignado, muy principalmente, en la dictada en 21 de Octubre de 1892, lo preceptuado en la ley 14, titulo 31 de la Partida 3.a, al tratar del mode de constituirse las servidumbres, no esta en oposicion con el pricipio mediante el que, dividida una finca entre diversas personas, sin que en el contrato se mencione cosa alguna acerca de un modo de aprovenchamiento distinto del que usaba el primitivo dueño de ella, se entieden subsistentes las servidumbres ncesarias para que aquel pueda tener lugar.

Considerando que ese principio y jurisprudencia han obtenido nueva sancion, puesto que a ellos obedece el concepto claro y concreto del articulo 541 del Codigo Civil, aplicable al caso, . . . (Ruiz, Codigo Civil, Vol. V, pp. 349-350).

Considering that, according to what has been established by this Supreme Tribunal in repeated sentences, and principally declared in the sentence promulgated on October 21, 1892, the provision of law 14, title 31 of Partida 3 in treating of the mode of constituting easements, is not contrary to the principle that when an estate is divided between different persons, and in the contract nothing is said out a mode of enjoyment different from that used by the original owner thereof, the necessary easements for said mode of enjoyment are understood to be subsisting;

Considering that such principle and jurisprudence have obtained a new santion, for due to them is the clear and concrete concept of Article 541 applicable to the case . . . .

Therefore, considering that Maria Florentino died in 1892, according to a finding of fact by the Court of Appeals, there is an easement of light and view in favor of the respondents' property under article 541 of the Civil Code.

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

1. Under Law 14, Title 31, Partida 3, this easement was constituted by an implied contract among the heirs of Maria Florentino.

2. Granting for the sake of argument that this easement was not created through an implied contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas was not inconsistent with the principle in question, so that there was a gap in the Partidas which the Supreme Court of Spain filled up from the Roman Law and modern civil codes, by recognizing the existence of this kind of easement.

3. Law 17, Title 31, Partida 3 regarding the extinguishment of an easement did not prohibit the easement in the instant case, Therefore, we should adhere to the decisions of the Supreme Court of Spain which maintain this easement under the Spanish law prior to Civil Code.

4. Other considerations show that the principle of apparent sign as announced by the Supreme Tribunal of Spain is not incompatible with the Partidas.

First, as to the implied contract. Law 14, Title 31, Partida 3 provided that easements were acquired by contract, by will and by prescription. Upon the death of the original owner, Maria Florentino, the four windows under consideration already existed and were visible. One of the heirs, Maria Encarnacion Florentino, to whom the camarin and its lot had been devised, having failed to object to the same, knowingly consented to their continuance. Nor did Gabriel and Jose Florentino (devisees of the house that had the four windows) permanently close the windows. There was consequently an implied agreement between her and the devisees of the house with the four windows to the effect that the service of these windows would continue, thus creating the easement of light and view and the concomitant easement of altius non tollendi. Hence, the easement in question was acquired by Gabriel and Jose Florentino through contract under Law 14, Title 31, Partida 3.

Secondly, with respect to the doctrine of the Supreme Tribunal of Spain. In a series of decisions of that court, it was held that Law 14, Title 31, Partida 3 was not opposed to the easement under review. One of those decisions is that of November 7, 1883, which held:

(Spanish word - page 418)

Other decisions of the Supreme Tribunal of Spain to the same effect are those of September 14, 1867 and June 7, 1883. (See Scaevola, "Codigo Civil Comentado" vol. 10, pp. 272-274.)

So that, granting for the sake of argument, that the easement was not created through an implied contract according to Law 14, Title 31, Partida 3, yet that provision of the Partidas, according to decisions of the Supreme Tribunal of Spain, was not inconsistent with the principle in question. The problem in this case not having been foreseen in Law 14, Title 31, Partida 3, there was a gap in the old legislation, which the Supreme Tribunal of Spain filled up from the Roman Law and from modern Civil Codes.

The principle in question was deeply rooted in the Roman Law. It is from the Roman Law that the Supreme Tribunal of Spain obtained this principle, in order to solve a question not provided for by the Partidas, whose main source was also the Roman law. In other words, the Partidas being silent on the point under consideration, the Supreme Tribunal of Spain resorted to the authoritative voice of the Roman law from which the Law of the Partidas had derived its inspiration.

The following quotations from the Spanish version the Roman Law Digest will prove the assertions just made:

(Spanish word - page 419)

Among the modern civil codes which contain the rule in question are those of France, Belgium, Holland, Portugal, Mexico and Chile. It is presumed that the Supreme Tribunal of Spain had also in mind at least one of them when it decided cases involving this principle before the promulgation of the Spanish Civil Code.

When, therefore, Maria Florentino died (supposing she died in 1885), the status of the Spanish law was in favor of the doctrine in question. We cannot change it because it was in full force at the time of the alleged date of Maria Florentino's death. We cannot reject a doctrine established by the Spanish Supreme Tribunal as an integral part of the Spanish law before the promulgation of the Civil Code in 1889. And we know that jurisprudence in the sense of court decisions is one of the sources of the law.

Thirdly, concerning Law 17, Title 31, Partida 3. It is true that the eminent jurist, Manresa, is of the opinion that "el precepto del art. 541 no solo no existia en nuestra antigua legislacion, sino que podia deducirse claramente lo contrario de la ley 17, tit. 31, Partida 3.a . . . ." However, a careful reading of this provision of the Partidas reveals that the same did not militate against the creation of an easement by an apparent sign if nothing was said or done when the property is divided. Law 17, Title 31, Partida 3, read as follows:

(spanish word - page 420-21)

This law regulates the extinguishment of an easement by merger of the dominant and the servient estates. Speaking of this law of the Partidas and of article 546, par. 1, of the Civil Code, both of which refer to merger of the two estates, Acaevola says: (p. 319, vol. 10)

But there is a world of difference between extinguishment of an easement by merger of the two estates and the constitution of an easement by an appa

NORTH NEGROS SUGAR CO., plaintiff-appellant,vs.SERAFIN HIDALGO, defendant-appellee. EN BANC G.R. No. L-42334 October 31, 1936

Hilado and Hilado for appellant.

Simeon Bitanga for appellee.

Ross, Lawrence, Selph and Carrascoso and DeWitt, Perkins and Ponce Enrile as amici curiæ.

RECTO, J.:p

On October 12, 1933, the plaintiff filed before the Court of First Instance of Occidental Negros a complaint praying, upon the allegations contained therein, that in an injunction be issued, restraining the defendant from entering or passing through the properties of the plaintiff, specially through the "mill site" of plaintiff's sugar central.

It appears that the plaintiff is the owner of a site in which is located its sugar central, with its factory building and residence for its employees and laborers, known as the "mill site." It also owns the adjoining sugar plantation known as Hacienda "Begoña." Across its properties the plaintiff constructed a road connecting the "mill site" with the provincial highway. Through this road plaintiff allowed and still allows vehicles to pass upon payment of a toll charge of P0.15 for each truck or automobile. Pedestrians are allowed free passage through it.

Immediately adjoining the above-mentioned "mill site" of the plaintiff is the hacienda of Luciano Aguirre, known as Hacienda "Sañgay," where the defendant has a billiard hall and a tuba saloon. Like other people in and about the place, defendant used to pass through the said road of the plaintiff, because it was his only means of access to the Hacienda "Sañgay" where he runs his billiard hall and tuba saloon. Later on, by order of the plaintiff, every time that the defendant passed driving his automobile with a cargo of tuba plaintiff gatekeeper would stop him and prevent him from passing through said road. Defendant in such cases merely deviated from said road and continued on his way to Hacienda "Sañgay" across the fields of Hacienda "Begoña," likewise belonging to the plaintiff.

The alleged conveyance of tuba to plaintiff's "mill site" or the sale thereof within its property has not been established by the evidence adduced in this case. This the plaintiff admits in its brief (p.15). Neither is there any evidence to show that the defendant actually created disturbance in plaintiff's properties, including its "mill site."

Other pertinent facts will be stated in appropriate places in this decision.

A. First of all it may be stated that in the case at bar the injunction applied for, constitutes, unlike the auxiliary and subordinate remedy that it ordinarily is, the principal remedy itself. The relief should only be granted, therefore, after it has been established not only that the right sought to be protected exists, but also that the acts against which the injunction is to be directed are violative of said right.

SEC. 164. Circumstances under which a preliminary injunction may be granted. A preliminary injunction may be granted when it is established, in the manner herein-after provided, to the satisfaction of the judge granting it:

1. That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of either for a limited period or perpetually;

2. That the commission or continuance of some act complained of during the litigation would probably work in justice to the plaintiff;

3. That the defendant is doing, or threatens, or is about to do, or in procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting the subject to the action, and tending to render the judgment ineffectual. (Code of Civil Procedure.)

In order that, at the final trial of a case, an injunction may issue perpetually prohibiting the repetition or continuation of an act complained of, it is indispensable that it shall have been proven at trial that he who seeks such a remedy is entitled to ask for it; if he is not, his request must be denied. (Tumacder vs. Nueva, 16 Phil., 513.)

The extraordinary remedy of injunction will not be granted to prevent or remove a nuisance unless there is a strong case of pressing necessity, and not because of a trifling discomfort. (De Ayala vs. Barretto, 33 Phil., 538.)

The existence of a right violated is a prerequisite to the granting of an injunction. . . . A permanent injunction should not be awarded except in a clear case and to prevent irreparable injury. (32 C. J., 34-36.)

A court of chancery will not entertain a bill enforce a mere valueless abstract right, and the court will, on its own motion, raise the point for its own protection. (Dunnom vs. Thomsen, 58 Ill. App., 390.)

None of these requisites is present in the instant case. There has been a failure to establish either the existence of a clear and positive right of the plaintiff specially calling for judicial protection through an extraordinary writ of the kind applied for, or that the defendant has committed or attempts to commit any act which has endanger or tends to endanger the existence of said right, or has injured or threatens to injure the same.

In obtaining ex-parte a preliminary injunction in the lower court, the plaintiff made under oath in its complaint the following allegations, which later turned out to be untrue, or, at least, beyond the capacity of plaintiff to prove:

3. That on sundry occasions heretofore, the defendant used to go to the said "mill site" of the plaintiff, passing over the latter's private roads, and there caused trouble among the peaceful people of the place.

4. That the plaintiff, through its representatives, has prohibited the defendant from entering its private property, but this notwithstanding, the defendant still persists in repeating his incursions into the said private roads and "mill site" of the plaintiff, disturbing public order and molesting plaintiff's employees and their families.

The court, in its order granting the preliminary injunction said:

Considering the said injunction and the sworn statement of its correctness filed by plaintiff's attorneys 1 and it appearing satisfactorily that the issuance of a preliminary injunction is in order because of the sufficiency of the grounds alleged, upon the filing of a bond, it is hereby, etc. . . . .

After obtaining the preliminary injunction, the plaintiff amended its complaint by eliminating therefrom those very allegations upon which the court granted the temporary remedy, namely, the acts imputed to the defendant "of causing trouble among the peaceful people of plaintiff's "mill site," and of disturbing public order and molesting plaintiff's employees and their families within the private roads and the "mill site" of the plaintiff." The plaintiff doubtless overlooked the fact that the allegation it availed of to obtain a preliminary injunction was necessary to secure one of a permanent character. In its new complaint, its only grievance is that the defendant insists in passing through its property to take tuba to the Hacienda "Sañgay" (which does not belong to the plaintiff but to Luciano Aguirre, and where the defendant has established a legitimate business). The amended complaint no longer alleges that the defendant went to the "mill site" and to the private roads of the plaintiff "to cause trouble, disturb public order and molest plaintiff's employees and their families."

It develops, however, that neither the original complaint nor the one amended states how and why the mere passage of the defendant over plaintiff's estate to convey tuba to the Hacienda "Sañgay" has caused damages to the plaintiff's property rights, requiring the unusual intervention and prohibition thereof by the courts through injunctive relief. The plaintiff failed not only to make any allegation to this effect, but also to the state that the road on its property where the defendant used to pass on his way to the Hacienda "Sañgay" was open to the public in general, and that the plaintiff, exercising without any permit a power exclusively lodged in the state by reason of its sovereign capacity, required the payment of passage fees for the use of said road.

Now, there being no contention here that the defendant, in passing over plaintiff's estate to take tuba to the Hacienda "Sañgay," occasioned damages to such estate, or that he sold tuba within the confines thereof, what could have been the basis of the plaintiff's right for which the special protection of the court is invoked, and of the illegal act laid at defendant's door? Defendant's passage over plaintiff's property does not, of itself, constitute an unlawful act inasmuch as the plaintiff, of its own accord, opened the same to the public conditioned only upon the payment of transit fees by motor vehicles. Neither does the mere transportation of tuba over plaintiff's estate amount to a violation of the latter's property rights, unless the goods' destination be at any point within the confines thereof, or unless the said goods be sold in transit to the laborers and employees of the plaintiff, which, as plaintiff itself admits in his brief. (p. 15), has not been shown.

The deduction from plaintiff's evidence is, that the real damage which it seeks to avoid does not consist in defendant's taking tuba with him while traversing the former's property, as there is no causal relation between the act and any resultant damage, but in the fact that tuba is disposed of at the Hacienda "Sañgay" to which plaintiff's laborers have access. What should, therefore, be enjoined, if it were legally possible, is defendant's sale of tuba at the Hacienda "Sañgay," and not its conveyance across plaintiff's estate. But if, as plaintiff concedes (brief, p. 16), the former cannot legally enjoined, least of all can the latter be restrained as long as the public in general is free to go about the said property and it has not been shown that the defendant, in passing through, it has occasioned damage thereto or has committed any act infringing plaintiff's property rights or has refused to pay the required road toll.

Defendant's sale of tuba at the Hacienda "Sañgay" is nothing more than the exercise of a legitimate business, and no real damage to the third persons can arise from it as a natural and logical consequence. The bare possibility that plaintiff's laborers, due to the contiguity of the Hacienda "Sañgay" to its property, might come to the defendant's store to imbibe tuba to drunkenness, does not warrant the conclusion that the defendant, in thus running this business, impinges upon plaintiff's property rights and should thereby be judicially enjoined. The damage which plaintiff seeks to enjoin by this action does not consist, as has been demonstrated, in defendant's maintaining a tuba store at the Hacienda "Sañgay," or in defendant's crossing its property while taking tuba to the Hacienda "Sañgay," but in its laborers finding their way to the said hacienda in order to buy tuba and become drunk. In other words, the act sought to be restrained as injurious or prejudicial to plaintiff's interests, is that committed, not by the defendant, but by plaintiff's own laborers. Rightly and logically, the injunction should be directed against said laborers to the end that they should abstain from going to the Hacienda "Sañgay" in order to buy tuba and become drunk. As it would seem unusual for the plaintiff to do this, it should at least exercise stricter vigilance and impose rigorous discipline on its laborers by, for instance, punishing drunkenness with expulsion. Plaintiff's remedy lies in its own hand and should not be looked for in the courts at the sacrifice of other interests no less sacred and legitimate than the plaintiff's.

Where one has a right to do a thing equity has no power to restrain him from doing it. (Dammann vs. Hydraulic Clutch Co., 187 Pac., 1069.) Acts under the authority of the law will not be enjoined (Bonaparte vs. Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617, Baldw., 205). Lawful exercise of rights incidentally injuring others may not be enjoined by injunction. (14 R. C. L., 369.) "It is . . . an established principle that one may not be enjoined from doing lawful acts to protect and enforce his rights of property or of persons, . . . ." (14 R. C. L., pp. 365, 366.)

It is said that the plaintiff seeks to enjoin the defendant, not from selling tuba at his store in the Hacienda "Sañgay," but from passing through its property to introduce tuba to said hacienda (plaintiff's brief, p. 16.) The legal rule, however, is that what the law does not authorize to be done directly cannot be hone indirectly. If the plaintiff cannot judicially enjoin the defendant from selling tuba at the Hacienda "Sañgay," neither can it obtain said injunction to prevent him from passing over its property to transport tuba to that place as long as the defendant is ready to pay the transit fees required by the plaintiff and does not sell the said goods inside the said property.

Suppose that the defendant, instead of being a tuba vendor, is a social propagandist whose preachings, while not subversive of the established legal order, are not acceptable to some capitalistic organizations, say the plaintiff. Suppose that the defendant, armed with the corresponding official permit, should desire to go to Hacienda "Sañgay" through plaintiff's estate for the purpose of explaining to the laborers the advantage of the latter organizing themselves into unions, or joining existing ones, to better defend their interests. Plaintiff learns in time of the plan and determines to frustrate it in the belief that it would be prejudicial to its interests for the laborers to be "unionized," while it is for its good that the laborers be contracted under the so-called "open shop" system. Unable to stop the holding of the meeting because the same is not to take place on its property may he plaintiff secure an injunction from the court to prevent the defendant to pass through the said property in order to reach the place of the meeting, by alleging that the defendant entertains theories of social reform which might poison the minds of the laborers at the expense of the plaintiff's interests? May the latter, under the same hypothesis, maintain that the defendant's act in passing through its property, which is open to public use, constitute trespass or usurpation restrainable by injunction? If the answer to these questions is, as it must be, in the negative, the present case is not susceptible of a different solution. The only difference between the two cases is that in the one supposed the dreaded damage to plaintiff's interests is of more moment and of more lasting effect than in the case at bar.

When a private road has been thrown open to public use, no action for trespass is maintainable against any person who desires to make use thereof; consequently, an injunction suit likewise does not lie.

Private roads, except where laid out under constitutional provisions authorizing the condemnation of private property for a private use, are public roads in the sense that they are open to all who see fit to use them, and it is immaterial that the road is subject to gates and bars, or that it is merely a cul de sac. Being thus considered as a public road, it necessarily follows that the owner of the land through which the road is laid out cannot maintain an action of trespass against any person using it; . . . (50 C. J., pp. 397, 398.)

. . . Where it is clear that the complainant does not have the right that he claims, he is not entitled to an injunction, either temporary or perpetual, to prevent a violation of such supposed right. . . . An injunction will not issue to protect a right not in esse and which may never arise or to restrain an act which does not give rise to a cause of action, . . . . (32 C. J., pp. 34, 35.)

B. In its brief, plaintiff states:

In transporting the tuba which he sells in his saloon in Hacienda "Sañgay" the defendant used to pass thru the private road of the plaintiff which connects its sugar central with the provincial road. On this private road the plaintiff has put up a gate under the charge of a keeper, and every time that the defendant passed with a cargo of tuba the gatekeeper would stop him and remind him that the tuba was not permitted entry into the private properties of the company, but instead of heeding this prohibition the defendant would simply deviate from the road and continue on his way to hacienda "Sañgay" by way of the fields of Hacienda "Begoña." which is also the private property of the plaintiff.

It is deducible from the above statement that, whenever the gatekeeper of the plaintiff prevented the defendant from passing thru its so-called "private road," on his way to the provincial road to Hacienda "Sañgay," the defendant deviated from said road and carried the tuba across the lands of Hacienda "Begoña" leading to the Hacienda "Sañgay." The evidence discloses that the passageway across the Hacienda "Begoña," is the same one frequented by carabaos (s. t., 32, 36). Plaintiff intends not only to prohibit the defendant from using the road in question, but also from crossing the lands of the Hacienda "Begoña," also belonging to the plaintiff, where carabaos are allowed to roam. An act so shocking to the conscience, one is reminded, could only have been perpetrated during the feudal period when human rights were unmercifully sacrificed to property rights. If an injunction should lie in the instant case, it should be in favor of the defendant and against the plaintiff, to enjoin the latter from obstructing the former to pass over the road in question to convey tuba to the Hacienda "Sañgay." It is indeed strange that it is the plaintiff and not the defendant that should have applied for the remedy.

. . . An injunction will not be granted when good conscience does not require it, where it will operate oppressively or contrary to justice, where it is not reasonable and equitable under the circumstances of the case, or where it will tend to promote, rather than to prevent, fraud and injustice. . . . (32 C. J., p. 33.) . . . a court of equity may interfere by injunction to restrain a party from enforcing a legal right against all equity and conscience. . . . (14 R. C. L., pp. 365, 366, par. 66.) . . . The comparative convenience or inconvenience of the parties from granting or withholding the injunction should be considered, and none should be granted if it would operate oppressively or inequitably, or contrary to the real justice of the case. This doctrine is well established. . . . (14 R. C. L., pp. 357, 358, par. 60.)

The power of the courts to issue injunctions should be exercised with great caution and only where the reason and necessity therefor are clearly established; and while this rule has been applied more frequently in the case of preliminary and mandatory injunctions, it applies to injunctions of all classes, and to restraining orders. . . . (32 C. J., pp. 33, 34.)

The writ of injunction will not be awarded in doubtful or new cases not coming within well-established principles of equity. (Bonaparte vs. Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617; Hardesty vs. Taft, 87 Am. Dec., 584.)

C. Plaintiff's action is frivolous and baseless.

Plaintiff states in the sixth paragraph of its amended complaint:

6. That, in addition, the plaintiff, in the exercise of it property rights, does not want to allow the entry of the defendant in any part of its estate above mentioned in order to avert any friction or ill-feeling against him.

The plaintiff, in petitioning the courts for an injunction to avert "friction or ill-feeling" against the defendant, invoking its sacred property rights, attempts to intrust to them a mission at once beyond those conferred upon them by the Constitution and the laws, and unbecoming of their dignity and decorum.

D. Plaintiff has not established the existence, real or probable of the alleged damage against which the injunction is invoked.

As has been seen, the allegations of the amended complaint do not justify the granting of an injunction. The said allegations only state, as the basis of plaintiff's action, that the defendant insists in passing or "making incursions" on plaintiff's property to take tuba to the Hacienda "Sañgay," and the plaintiff wants to avoid "friction and ill-feeling against him." Such allegations do not imply the existence, of any real damage to plaintiff's rights which should be enjoined, and do not, therefore, constitute a legal cause of action. On the other hand, what the plaintiff attempted to establish by its evidence differs from the allegations of its amended complaint. What said evidence really discloses is not, that the plaintiff had forbidden the defendant to convey tuba to the Hacienda "Sañgay" through plaintiff's estate, but to introduce tuba into the central or to place tuba on its lands, or, according to Exhibit A, to trespass illegally on plaintiff's estate. The testimony of the gatekeeper Santiago Plagata and the accountant Ankerson is as follows:

Q. Why did you detain him? A. Because the Central forbids the bringing of tuba to the Central.

Q. Why does the Central prohibit the entry of tuba? A. The Central prohibits the entry of tuba there because the laborers, generally, buy tuba, drink it and become drunk, and are unable to work, and sometimes they fight because they are drunk. (S. t., p. 5.)

Q. Why did you kick them? A. Because the North Negros Sugar Co. prohibits the placing of tuba on those lands. (S. t., pp. 38, 39.)

Exhibit A, the alleged letter addressed by the plaintiff to the defendant, recites:

Mr. SERAFIN HIDALGO, Driver of Auto, License No. 1085-1935.

Present.

SIR: Effective this date, you are hereby forbidden to trespass upon any of the Company's properties under penalties of law prescribed for trespass.

NORTH INTEGROS SUGAR CO., INC,.By: (Sgd.) Y. E. GREENFIELD Manager

It will be noted that according to this letter, the defendant was enjoined by the plaintiff from passing thru its properties, whether he carried tuba or not.

Plaintiff's admission in its brief (p. 15) that it has not been established that the defendant has brought tuba to the "mill site," or has sold it within its property, is fatal to the present action charging the defendant with said acts.

E. The well-known principle of equity that "he who comes to equity must come with clean hands" bars the granting of the remedy applied for by the plaintiff.

It has been already stated that the plaintiff, to obtain a preliminary injunction in this case, alleged under oath in its original complaint facts which it knew to be false, or, at least, unprobable, because it did not only eliminate them from the amended complaint which it filed after the issuance of the preliminary injunction, but it failed to substantiate them at the trial. We refer to the following allegations: "that the defendant used to go to the "mill site" of the plaintiff passing through plaintiff's private roads and there cause trouble among peaceful people of the place," and "that notwithstanding the prohibition of the plaintiff, the defendant insists in repeating his incursions into the said private roads and "mill site" of the plaintiff, disturbing public order and molesting plaintiff's employees and their families."

If said allegations were true, it is evident that plaintiff was entitled to a preliminary injunction at the commencement of the trial, and to a permanent injunction after the was rendered. But such is not the case, as the subsequent theory of the plaintiff, announced in its amended complaint, is not that the defendant "made incursions into the "mill site" and private roads of the plaintiff, causing trouble, disturbing public order, and molesting plaintiff's employees and their families," but only that the defendant, to take tuba to the Hacienda "Sañgay," belonging to Luciano Aguirre, insisted in passing through plaintiff's estate. From all this it follows that the plaintiff in order to obtain a preliminary injunction, trifled with the good faith of the lower court by knowingly making untrue allegations on matters important and essential to its cause of action. Consequently, it did not come to court with clean hands.

Coming into Equity with Clean Hands. The maxim that he who comes into equity must come with clean hands is, of course, applicable in suits to obtain relief by injunction. Injunction will be denied even though complainant shows that he has a right and would otherwise be entitled to the remedy in case it appears that he himself acted dishonestly, fraudulently or illegal in respect to the matter in which redress is sought, or where he has encouraged, invited or contributed to the injury sought to be enjoined. However, the general principle that he who comes into equity must come with clean hands applies only to plaintiff's conduct relation to the very matter in litigation. The want of equity that will bar a right to equitable relief for coming into court with unclean hands must be so directly connected with the matter in litigation that it has affected the equitable relations of the parties arising out of the transaction in question. (32 C. J. pp. 67, 68.)

At this point, attention should be directed to other facts of the case indicative of the censurable attitude which the plaintiff has taken in connection therewith. On one occasion, the defendant drove his automobile along the road in question, accompanied by Antonio Dequiña, headed for the Hacienda "Sañgay." As they had tuba with them, on reaching the gate they were halted by the gatekeeper. The defendant and his companion got off the car and unloaded the tuba in order to follow the passageway across the lands of the Hacienda "Begoña," through which plaintiff's carabaos passed, until they could reach "Sañgay." Thereupon, one Ankerson, accountant and auditor of the plaintiff, arrived and no sooner he had laid eyes on the tuba containers than he indignantly kicked them and uttered a blasphemy to both, spilling the contents thereof. The defendant protested and asked Ankerson to indemnify him for the value of the tuba which had been wasted, to which Ankerson replied that he would make good what should be paid, and he then and there wrote and handed over a note to the defendant for presentation to plaintiff's cashier. The defendant presented the note, but this claim was not paid, and instead he was prosecuted for trespass in the justice of the peace court of Manapla under article 281 of the Revised Penal Code. So absurd and malicious was the charge that the court, in acquitting the defendant, entered the following order (Exhibit 3):

A peaceful citizen who passes through a private road open to the public does not commit the crime of trespass. Although the prohibition to the accused to be in a private property should be manifest, if the latter is not fenced or uninhabited, the mere fact that the accused is found on the place in question, for a lawful purpose, does not constitute the crime of trespass defined and punished under article 281 of the Revised Penal Code.

The plaintiff did not stop at this; it filed the present action for injunction which, as has been seen, is nothing more than the culmination of a series of affronts which the plaintiff has perpetrated, privately and through the courts, against the defendant.

F. The exercise of discretion by trial courts in matters injunctive should not be interfered with by appellate courts except in cases of manifest abuse.

. . . The court which is to exercise the discretion is the trial court and not the appellate court. The action of the court may be reviewed on appeal of error in case of a clear abuse of discretion, but not otherwise, and ordinarily mandamus will not lie to control such discretion. (32 C. J., sec. 11, p. 33.)

True, the rule has particular application to preliminary injunctions, but the rule should not be otherwise with respect to permanent injunctions especially where, as in this case, the trial court, after granting the preliminary injunction, set the same aside in its final decision on a careful review of the evidence.

II

It is undisputed the road in question was constructed by the plaintiff on its own land, and that it connects the central or the "mill site" with the provincial road. We have also the admission that the plaintiff made this road accessible to the general public, regardless of class or group of persons or entities. Its use has been extended to employees and laborers of the plaintiff; and so also to all those who have a mind to pass through it, except that, in cases of motor vehicles, a passage fee of P0.15, each should be paid. There is no contention here that the defendant had refused to pay said tolls whenever he wanted to drive his car along the road in question.

We, therefore, have the case of an easement of way voluntarily constituted in favor of a community. Civil Code articles 531 and 594 read:

ART. 531. Easements may also be established for the benefit of one or more persons or of a community to whom the encumbered estate does not belong.

xxx xxx xxx

ART. 594. The owner of an estate may burden it with such easements as he may deem fit, and in such manner and form as he may consider desirable, provided he does not violate the law or public order.

There is nothing in the constitution of this easement in violation of law or public order, except perhaps that the right to open roads and charge passage fees therefor i the State's by right of sovereignty and may not be taken over by a private individual without the

LAUREANA A. CID, petitioner,vs.IRENE P. JAVIER, MANUEL P. JAVIER, JOSEFINA P. JAVIER, FERNANDO P. JAVIER, JOSE P. JAVIER, GUILLERMO P. JAVIER, ISIDORA P. JAVIER, BENJAMIN P. JAVIER, and LEONOR CRISOLOGO, respondents. EN BANC G.R. No. L-14116 June 30, 1960

Antonio V. Raquiza for petitioner.

Cesar D. Javier for respondents.

BARRERA, J.:p

The legal issue presented in this petition to review by certiorari a decision of the Court of appeals, is whether the respondents Irene P. Javier, et al., owners of a building standing on their lot with windows overlooking the adjacent lot, had acquired by prescription an enforceable easement of light and view arising from a verbal prohibition to obstruct such view and light, alleged to have been made upon petitioner's predecessor-in-interest as owner of the adjoining lot, both of which lots being covered by Torrens titles. Both the trial court and the Court of Appeals are of the view and so declared that respondents Javier et al., did acquire such easement and gave judgment accordingly. Hence, petitioner has come to us seeking review, alleging that both courts are in error.

The windows in question are admittedly in respondents' own building erected on their own lot. The easement, if there is any, is therefore a negative one. 1 The alleged prohibition having been avowedly made in 1913 or 1914, before the present Civil Code took effect, the applicable legal provision is Article 538 of the Spanish Civil Code which provides:

Art. 538. In order to acquire by prescription the easements referred to in the next preceding article, the time of the possession shall be computed, ... in negative easements, from the day on which the owner of the dominant estate has, by a formal act, forbidden the owner of the servient estate to perform any act which would be lawful without the easement. (Emphasis supplied.)

As may be seen, the only question hinges on the interpretation of the phrase "a formal act". The lower court and the Court of Appeals considered any prohibition made by the owner of the dominant estate, be it oral or written, sufficient compliance with the law. The Court of Appeals declared:

In the light of the foregoing decisions, (Cortes vs. Yu Tibo, 2 Phil., 26 and the decisions of the Supreme Court of Spain therein cited), we agree with the trial court that the "formal act" of prohibition contemplated by Art. 538 of the old Civil Code may be either a written or verbal act. The decisions of the Supreme Court of Spain above-quoted do not at all mention written but merely some act of prohibition. . . . .

We are inclined to take the contrary view. The law is explicit. It requires not any form of prohibition, but exacts, in a parenthetical expression, for emphasis, the doing not only of a specific, particular act, but a formal act. The following definitions are pertinent:

Formalor pertaining to form, characterized by one due form or order, done in due form with a solemnity regular; relating to matters of form. (C. J. S. vol. 37, p. 115.)

ActIn civil law, a writing which states in legal form that a thing has been done, said or agreed. (1 Bouvier's Law Dictionary, p. 150, citing Marlin Report.)

From these definitions, it would appear that the phrase "formal act" would require not merely any writing, but one executed in due form and/or with solemnity. That this is the intendment of the law although not expressed in exact language is the reason for the clarification 2 made in Article 621 of the new Civil Code which specifically requires the prohibition to be in "an instrument acknowledged before a notary public". This is as it should be. Easements are in the nature of an encumbrance on the servient estate. They constitute a limitation of the dominical right of the owner of the subjected property. Hence, they can be acquired only by title and by prescription, in the case of positive easement, only as a result of some sort of invasion, apparent and continuous, of the servient estate. By the same token, negative easements can not be acquired by less formal means. Hence, the requirement that the prohibition (the equivalent of the act of invasion) should be by "a formal act", "an instrument acknowledged before a notary public."

The Court of Appeals found as undisputed the fact 'that plaintiffs' lot (dominant) as well as defendant's lot (servient) are covered by Original Certificates of Title Nos. 7225 and 7545, respectively", both issued by the Register of Deeds of Ilocos Norte, in pursuance of the decrees of registration issued on December 27, 1937, in Cadastral Case No. 51, G.L.R.O. Cadastral Record No. 1212 of Laoag, Ilocos Norte. Certified copies of these certificates of title are found as Annexes "A" and "B", pages 77 to 80 inclusive of the Record on Appeal. In both of them, it does not appear any annotation in respect to the easement supposedly acquired by prescription which, counting the twenty (20) years from 1913 or 1914, would have already ripened by 1937, date of the decrees of registration. Consequently, even conceding arguendo that such an easement has been acquired, it had been cut off or extinguished by the registration of the servient estate under the Torrens System without the easement being annotated on the corresponding certificate of title, pursuant to Section 39 of the Land Registration Act. 3

Wherefore, the decision of the Court of Appeals appealed from is hereby reversed; the injunction issued herein dissolved; and the case remanded to the court of origin for adjudication of the damages, if any, occasioned by the issuance of the injunction. Without pronouncement as to costs. So ordered.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., and Gutierrez David, JJ., concur.

R E S O L U T I O N

January 20, 1961

BARRERA, J.:

The Decision in this case, promulgated on June 30, 1960, provided, among others, for the lifting of the preliminary injunction issued by the lower court directed against petitioner's construction of a building allegedly being made in violation of Municipal Ordinance No. 3, series of 1909 of the municipality of Laoag, and in disregard of respondents' right to light and view.

In their motion for reconsideration timely presented, respondents claim that the findings of the lower court, affirmed by the Court of Appeals, that the building under construction violated the aforementioned ordinance (from which no appeal was interposed) having become final, justify the issuance of and making permanent the injunction already issued.

There is no question that respondents' house, as well as that of petitioner, are within their respective properties; that respondents' wall stands only 50 centimeters from the boundary of the 2 lots, whereas, the wall of the petitioner's building was constructed 1 meter from the boundary or 1 meter and 50 centimeters from the wall of the house of respondents. As a result, the lower court found that the eaves of the two houses overlap each other by 24 centimeters. This, the Court of Appeals declared to be violative of Ordinance No. 3, series of 1903, amending Sections 1, 5, 6, and 13 of the Municipal Ordinance of June 3, 1903, which requires a distance of 2 meters, measured from eaves to eaves of adjoining buildings of strong materials.

It must be noted, however, that the Ordinance in question was adopted since 1909 and was, therefore, already in force at the time the house of respondents was reconstructed in 1946 after the building originally erected thereon was burned in 1942. If respondents constructed their house at least one meter from the boundary line, as petitioner has constructed hers, there would be no overlapping of the eaves and there would not be any violation of the ordinance. As things now stand, in view of such construction by the respondents, the overlapping of the eaves and the consequential violation of the ordinance can not entirely be attributed to petitioner, as to require her alone to make the adjustments necessary for the observance of the 2-meter eaves-to-eaves distance from her neighbors. If any compliance with the ordinance would be made not only by petitioner, but also by the respondents. There is, therefore, no reason for the continuation of the injunction.

In view of the foregoing, and as the other grounds respondents' motion for reconsideration had been already duly considered in the Decision, the said motion is hereby denied, for lack of merit. So ordered.

CARMEN AYALA DE ROXAS and PEDRO P. ROXAS, plaintiffs,vs.THE CITY OF MANILA and ROBERT G. DIECK, as city engineer, defendants. EN BANC G.R. No. L-3144 November 19, 1907

Del-Pan, Ortigas and Fisher, for plaintiffs.

Modesto Reyes, for defendants.

ARELLANO, C.J.:p

The defendants' demurred to the amended complaint having been overruled, an answer was presented, and the trial of the case proceeded with.

Briefly, the subject of this action may be stated as follows:

1. That on the 15th of January, 1906, the plaintiff, as owner of the property situated on the Escolta, district of Binondo, city of Manila, the eastern boundary of which adjoins the canal of San Jacinto or Sibacon to the extent of 23.50 meters, the total area of the ground being 658.19 square meters, applied to the city engineer, Robert G. Dieck, the defendant herein, for a license to construct a terrace over "the strip of land 3 meters in width between the main wall of her house and the edge of the said canal of Sibacon or San Jacinto, which strip of land belongs exclusively to her"; but the defendant refused to grant the license or authorize the plaintiff to build the terrace.

2. That a similar petition was addressed to the Municipal Board of the city of Manila on the 30th of said month and year, and it also was denied.

3. That, as the plaintiff has been informed, the sole reason wherefore the license was denied is because "the said defendants pretend to compel the plaintiff to leave vacant and without any construction whatever thereon the said strip of 3 meters in width which is a portion of the ground belonging to her, in order to use the same as the wharf or public way so that the plaintiff will only be able to use the said strip in the same manner and for the same purposes as the public in general, thus losing the enjoyment, use, and exclusive possession of the said strip of the property which the plaintiff and the former owners thereof have enjoyed quietly and peacefully during more than seventy years."

4. That the strip in question was occupied by a two-storey building constructed more than seventy years ago.

It appears from the evidence:

First. That the plaintiff's ownership of the whole ground and of the strip in question is beyond all doubt, both by reason of her title thereto and the entry thereof in the registry of property, and by the acknowledgment thereof made by the city itself when obtaining by means of condemnation proceedings a portion of the same property adjoining the public road.

Second. That as a matter of fact, the license which the plaintiff, using her right of ownership, requested for the construction of a terrace on the strip of 3 meters adjoining the canal of San Jacinto or Sibacon, was denied; both parties agreeing that the denial was due to the intent to reserve the said strip for the establishment of a public easement, although the opposing witnesses did not agree as to the special easement intended to be established.

Third. That it was agreed between both parties that the strip above referred to had not been expropriated in whole or in part by the municipality of Manila, and that neither had the latter offered any compensation for the same to the owner thereof.

Fourth. That according to Engineer Dieck, a defendant, the purpose of the city was to use the said strip of 3 meters as a place for discharging and landing goods, and as a place of shelter for shipwrecked persons and for fishermen, and to devote it also, together with other strips along the canal, by the gradual acquisition of land, to a towpath for craft passing through the canal; that a building line has been established by the Municipal Board along the Sibacon Creek leaving a strip of 3 meters within which, according to ordinances, no constructions would be permitted; that such is the purpose and the intent on which the existing ordinances are based. But John Tuther, the secretary of the Municipal Board, declares that, when Ordinance No. 78 was under discussion, he does not recall having heard any of the members of the board make reference to a towpath nor did he ever hear anything said with reference to the purpose to which the strip of 3 meters mentioned in Ordinance No. 78 was to be devoted, though he believes that, by thus leaving a strip of 3 meters, it would be easier to prevent collisions; that it would facilitate navigation, and that it had never been the intention of the Board to indemnify the owners of such strips of 3 meters by reason of the use which parties landing thereon may make of the same.

Fifth. That, as stated in the brief of the defendants, "the intention of the Municipal Board, when denying the permit asked for by the plaintiff, has never been to establish any way whatever along the Sibacon Creek so that said plaintiff could, if she chose to, close her property with walls or the like perpendicularly to said creek, that is, over the two lines perpendicular to said creek, provided she does not close or build over the 3-meter space running along the creek," which space is subject, as stated in the evidence submitted by the defendants, to the "easement of public use for the general interest of navigation, flotation, fishing, and salvage," citing the Law of Waters and the Civil Code.

Sixth. And that the result is, according to No. 19 of the statement of facts of the complaint, "that the plaintiff shall only be able to use said strip in the same manner and for the same purposes as the general public, thus losing the enjoyment, use, and exclusive possession of said strip of the ground which the plaintiff and the former owners of the same have enjoyed as such owners quietly and peacefully during more than seventy years."

What the defendants have therefore done is to prevent the plaintiffs from continuing to enjoy, use, and freely dispose of such strip of their ground, as they had been doing up to the time when they applied for a license to construct a terrace over said strip, and the defendants prevented it with the intention of establishing a public easement provided for in an ordinance of their own which they consider is pursuant to the provisions of the Law of Waters and of the Civil Code in force.

In the decision entered by this court on the 5th of May, 1906, regarding the demurrer, the following was set forth:

The easement of a zone for public use, authorized by article 73 of the Law of Waters of 1866, is developed in articles 160 and 161, inclusive, of said law; the general interest on behalf of which the easement is supported is determined, for navigation, by articles 160 and 161; for flotation, by article 162; for salvage, by article 163; and for fishing, by article 164; in all of them the owner of the riverside property supports the easement "upon being previously indemnified for loss and damage." (Folio 41.)

Said zone for public use, the same as a towpath, is solely available for the purposes of navigation, flotation, fishing, and salvage, being closed to any other use which be attempted; therefore, it is erroneous to pretend that the right of the owner of the property bordering upon the stream can be reduced to the level of the public right; on the contrary he should only be called upon to bear those burdens which are in the general interest, but not without prior, or subsequently indemnity. (Folio 43.)

If as affirmed in statement No. 4, and accepted by the defendants, the Sibacon Creek is a canal let us grant that it is navigable, because it has been held by competent authority and that under the name of a public wharf, which is the largest in area, it is desired to establish a towpath, which is the smallest, it must be remembered that the law does not grant it along navigable canals (art. 157), and, at all events, the establishment thereof must be preceded by the corresponding indemnity. (Arts. 154 and 157.)

The matter at issue herein being the enforcement of the Law of Waters and of the Civil Code, it is not out of place nor untimely, even now, to point out the administrative law which ought to have been applied had this act of the city of Manila been carried out by the late ayuntamiento during the former sovereignty; an administrative law which, owing to its having been so often repeated, is now raised to the rank of an incontrovertible principle of law on the matter.

The powers of the administration do not extend to the establishment of new easements upon private property but simply to preserve old ones, whenever a recent and easily proven usurpation exists. (Decision of January 23, 1866.)

Ayuntamientos are not authorized to impose an easement upon private property; therefore, any order thus given can not be held to have been issued in the exercise of their lawful powers. (Decision of July 28, 1866.)

Administrative action for the recovery of a public easement which has been usurped by a constructive work of private ownership can only be taken when such usurpation is of recent date and easily proven.

When real rights are concerned an ayuntamiento may prosecute such actions as it may consider itself entitled to, for the possession or ownership in accordance with law. (Decision of October 26, 1866.)

This doctrine will be found far more vigorous at present upon reference to the principles of the law now in force.

According to article 349 of the Civil Code, no one shall be deprived of his property, except by competent authority and with sufficient cause of public utility, always after proper indemnity; if this requisite has not been fulfilled the courts must protect, and eventually restore possession to the injured party.

Under section 5 of the act of Congress of July 1, 1902, no legislation shall be enacted in the Philippine Islands which shall deprive any person of life, liberty, or property without due process of law; and the due process of law in order to deprive a person of his property is, according to the Code of Civil Procedure, reserved to the judicial authority. The refusal to grant a license or the enactment of an ordinance whereby a person may be deprived of property or rights, or an attempt thereat is made, without previously indemnifying him therefor, is not, nor can it be, due process of law.

And, considering that the easement intended to be established, whatever may be the object thereof, is not merely a real right that will encumber the property, but is one tending to prevent the exclusive use of one portion of the same, by expropriating it for a public use which, be it what it may, can not be accomplished unless the owner of the property condemned or seized be previously and duly indemnified, it is proper to protect the appellant by means of the remedy employed in such cases, as it is the only adequate remedy when no other legal action can be resorted to, against an intent which is nothing short of an arbitrary restriction imposed by the city by virtue of the coercive power with which the same is invested. The question involved here is not the actual establishment of an easement which might be objected to by an action in court, but a mere act of obstruction, a refusal which is beyond the powers of the city of Manila, because it is not simply a measure in connection with building regulations, but is an attempt to suppress, without due process of law, real rights which are attached to the right of ownership.

When . . . any corporation, board, or person unlawfully neglects the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes the plaintiff from the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person, and the court, on trial, finds the allegations of the complaint to be true, it may, if there is no other plain, speedy, and adequate remedy in the ordinary courts of law, render a judgment granting a peremptory order against the defendant, commanding him, immediately after the receipt of such order, or at some other specified time, to do the act required to be done to protect the rights of the plaintiff. (Code of Civil Procedure, sec 222.)

Therefore, we hereby command the defendants, the city of Manila, and Robert G. Dieck, as city engineer, or whomsoever may now be acting as such, to immediately issue a license in favor of the plaintiff herein, Doña Carmen Ayala de Roxas, to construct the terrace as aforesaid in accordance with the plan and specification as per Exhibit A, the said defendants to pay the costs of these proceedings. So ordered.

EUGENIO RESOLME, ET AL., plaintiff-appellees,vs.ROMAN LAZO, defendant-appellant. G.R. No. L-8654 EN BANC

March 30, 1914

Roman Lazo in his own behalf.

A. M. Jimenez for appellees.

CARSON, J.:p

Plaintiff claiming a right of way across the land of the defendant allege that it has been and is being obstructed by him by the erection of fences, which compel them to make a sharp turn near the boundary of his land, and to cross his land on a parallel with and a little to the north of the ancient right of way. The evidence of record, read together with the excellent and manifestly fair and unbiased report of the commissioner appointed by the trial court, clearly establishes the existence of the ancient right of way as set forth in the complaint, and leaves no room for doubt that the defendant, for his own convenience and without the consent of the plaintiffs, has and is obstructing the ancient right of way by fencing it off and thus compelling the plaintiffs to use another and less convenient means of passage across his land. Plaintiff's evidence and the commissioner's report tend very strongly to maintain a finding that the new right of way is not much less convenient and commodious than the old one, defendant's object in making the change being merely to move the road a little farther away from his house. The commissioner suggest that the principal objection to the new right of way could be overcome by making the turn from the old road into the new one at an angle not quite so sharp as that in actual use, and his clear and comprehensive report would appear to sustain his contentions. But it must be remembered that this is not a question of laying out a new road, in which questions of relative convenience to the public and the land owners whose property is taken for the public use may properly be taken into consideration. The question here submitted is whether the defendant is or is not obstructing an ancient right of way as alleged in the complaint; and the allegations of the complaint having been established in a proper action, the plaintiffs' right to relief cannot be defeated by proof that defendant has furnished a new right of way, nearly but not quite as convenient and commodious as the old one. Such evidence would be of much importance if plaintiffs had undertaken to establish their claim of damages, but since there is no competent proof in the record in support of their allegations as to damages it can have no controlling influence in the dispositions of the real issues involved on this appeal.

We are of opinion that the trial judge correctly held that record sustains the plaintiff's claim of a right of way as indicated by the arrows marked number 1 on the plan of the land submitted by the commissioner and filed with the record. We think however that the form of judgment entered by him must be modified. He directed merely that this road "be opened for the public use" and by inference imposed upon by the defendant the duty of so doing. But there is nothing in the record which would justify a finding that the defendant is charged with a duty to maintain or construct a road across his land. So far as the record discloses his only obligation in regard to this right of way over his land is a negative one, that is to say, not to obstruct or hinder the free passage over it of any persons entitled to make use of it. While the prayer of the complaint does not clearly indicate the relief sought by the plaintiffs, we think it may be fairly be construed as a prayer for a permanent injunction, and as that is the relief to which the plaintiffs are entitled upon the facts alleged and proven, the trial court should have granted a permanent injunction prohibiting the defendant from obstructing, by the maintenance of fences or otherwise, the plaintiffs' passage over the ancient right of way, which the trial court found to be in a direct line as indicated by the arrows marked No. 1 in the commissioner's plan.

Let the judgment be entered reversing the judgment entered in the court below, without costs to either party.

EN BANC

G.R. No. L-48173 January 30, 1943

GENARO F. MENDOZA, ET AL., petitioners,vs.EPIFANIA ROSEL, ET AL., respondents.

Numeriano G. Estenzo for petitioners.

Honarato S. Hermosisima for respondents.

BOCOBO, J.:p

Genaro F. Mendoza and Anuciacion E. de Mendoza (now deceased) were sued in the Court of First Instance of Cebu by respondents Epifania Rosel and Paulino Nator who asked for an injunction to forbid the former from closing an easement of right of way appurtenant to respondents' lots. Both the trial court and the Court of Appeals rendered judgment in favor of respondents.

The lots belonging to respondents are a part of a larger parcel of city land which originally pertained to the heirs of Pedro Rodriguez. This large parcel had been subdivided into small lots and sold to various persons, the respondents being among them. In subdividing said tract of land, the original owners had opened an alley, three meters wide, which ran athwart the land, diving the same into two equal areas. This alley is the only means of access from the small lots belonging to respondents and other persons on the western half of the larger parcel to General Junquera street, which is the only street available. When the title to the larger piece of land was confirmed in favor of the heirs of Pedro Rodriguez, the court considered said alley as two lots one of them 45 meters long and 3 meters wide, and the other 40 by 3 meters, and ordered that the corresponding certificates of title thereto be issued.

Petitioners claim that inasmuch as their transfer certificates of title do not mention any lien or encumbrance on their lots, they are purchasers in good faith and for value, and as such have the right to demand from respondents some payment for the use of they alley. However, the Court of Appeals found as a fact that when respondents acquired the two lots which form the alley, they knew that said lots could serve no other purpose than as an alley. The existence of the easement of right of way was therefore known to petitioners who must respect the same, in spite of the fact that their transfer certificates of title do not mention any burden or easement. It is an established principle that actual notice ]or knowledge is as binding as registration.

Because it is not within the scope of the present case, we do not pass upon the question of whether petitioners are entitled to indemnify from the Visayan Surety and Insurance Corporation from which they acquired these two lots that constitutes the alley in question.

The judgment of the Court of Appeals is hereby affirmed, with costs against petitioners. So ordered.

Yulo, C.J., Moran and Lopez Vito, JJ., concur.

Separate Opinions

OZAETA, J., concurring:

I concur. The heirs of Pedro Rodriguez, the original owners of the subdivided lots, were obligated to devote the alley in question as right of way of the purchasers of the surrounding lots. (Article 567, Civil Code.) That is why, as a matter of common knowledge, owners of subdivisions for sale add the cost of the street areas to the price of the surrounding lots. Indeed, no one would buy such building lots if there were no right of way from there to the public highway. Therefore, the heirs of Pedro Rodriguez had no right to encumber, sell, or dispose of said alley, which is indicated on the plan as lots 776-B-7 and 776-B-12. Consequently, the successive transfers of said alley down to the present petitioners were null and void.

Assuming, without deciding, that the petitioners were purchasers in good faith of lots 776-B-7 and 776-B-12, their action against the Visayan Surety and that of the latter against the heirs of Pedro Rodriguez are left open for determination in a separate suit they may care to institute.

GRSI ® Copyrightregno N94-027G.R. No. L-919 December 11, 1902UNITED STATES vs. VICENTE SOTELO

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-919 December 11, 1902

THE UNITED STATES, complainant-appellee,vs.VICENTE SOTELO, defendant-appellant.

Francisco Ortigas, for appellant.

Office of the Solicitor-General Araneta, for appellee.

LADD, J.:p

The defendant, Sotelo, has been convicted under No. 1 of article 518 of the Code of the larceny of 1,450 pesos, Mexican, the property of Warner, Barnes & Co., and in the possession of J.R.C. Smith, the representative of that firm in Albay.

Sotelo was employed as escribiente in Smith's office, and at times had access to the safe where the money was kept. Smith suspected him of the larceny, and accused him of it in the presence of an officer of the Constabulary and another person. Sotelo at first denied his guilt, but upon the officer threatening to have him arrested he requested a private interview with Smith and, according to the latter's testimony, made a full confession to him.

If Smith's evidence as to the confession were uncorroborated, we might possibly regard it as unsafe to convict. But it is admitted that subsequent to this interview with Smith, and after the initiation of criminal proceedings against him, Sotelo sent several telegrams to the manager of the firm of Warner, Barnes & Co. in Manila, in which he asked for pardon and mercy, and that the prosecution be withdrawn and the affair concealed from his family, and promised restitution.

The ingenious argument of counsel for the defense utterly fails to convince us that this conduct is reconcilable with the hypothesis of innocence.

The evidence in the record discloses other circumstances pointing to the defendant's guilt, to which we need not advert. We regard the evidence as to the verbal confession, corroborated as it is by the telegrams, as amply sufficient to sustain the conviction.

There were no aggravating or extenuating circumstances and the court below erred in applying the penalty in the minimum instead of the medium grade. The penalty should be three years six months and twenty-one days of presidio correccional.

With the modification indicated the judgment is affirmed with costs of first instance, and the cause will be returned to the court below for the execution of such judgment. So ordered.

Arellano, C.J., Torres, Cooper, and Willard, JJ., concur.

Smith and Mapa, JJ., did not sit in this case.

GRSI ® Copyrightregno N94-027G.R. No. L-11108 June 30, 1958 CHUA HAI vs. RUPERTO KAPUNAN, JR., ET AL.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-11108 June 30, 1958

CHUA HAI, petitioner,

vs.

HON. RUPERTO KAPUNAN, JR. as Judge of the Court of First Instance of Manila and ONG SHU, respondents.

Pedro Panganiban y Tolentino for petitioner.

German Lee for respondent Ong Shu.

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

Certiorari against an order of the Court of First Instance of Manila, Hon. Ruperto Kapunan, Jr. presiding, ordering the return to the complainant in criminal case No. 34250, People vs. Roberto Sotto, of 100 sheets of galvanized iron roofing which had been sold by the accused in said case to petitioner herein, Chua Hai. The order is as follows:

Counsel for the complainant in this case seeks the return of the 700 sheets of galvanized iron now with the Manila Police Department which form part of the hardware materials involved in this case. Chua Hai, one of the persons who purchased from the accused one hundred (100) pieces of the said galvanized iron sheets, opposes the said motion on the ground that the question of ownership should be determined in the proper proceedings, claiming that he has a valid title to the 100 pieces, having bought them from the accused Roberto Soto on February 1, 1956. Roberto Soto is presently at large, his arrest having been ordered by this Court on June 13, 1956, for failure to appear for trial.

Considering the provisions of Article 105 of the Revised Penal Code, the said 700 sheets, except five of them which are to be retained for purposes of evidence, are hereby ordered returned to the complainant, subject, however, to the condition that the complainant post a bond in an amount equal to twice the value of 100 sheets in favor of Chua Hai who has a claim of ownership to the said 100 sheets, and without prejudice on the part of said Chua Hai to file the corresponding action on the matter of ownership thereof by virtue of his purchase from the herein accused.

From the facts alleged in the pleadings presented in this case, we gather the following: On January 31, 1956, Roberto Soto purchased from Youngstown Hardware, owned by Ong Shu, 700 corrugated galvanized iron sheets and 249 pieces of round iron bar for P6,137.70, and in payment thereof he issued a check drawn against the Security Bank and Trust Company for P7,000.00, without informing Ong Shu that he had no sufficient funds in said bank to answer for the same. When the check was presented for payment, it was dishonored for insufficiency of funds. Soto sold 165 sheets in Pangasinan and 535 sheets in Calapan, Mindoro. Of those sold in Pangasinan, 100 were sold to petitioner Chua Hai. When the case was filed in the Court of First Instance of Manila against Roberto Soto, for estafa, the offended party filed a petition asking that the 700 galvanized iron sheets, which were deposited with the Manila Police Department, be returned to him, as owner of the Youngstown Hardware. Petitioner herein opposed the motion with respect to the 100 sheets that he had bought from Soto. Notwithstanding the opposition, the court ordered the return of the galvanized iron sheets to Ong Shu. Petitioner then presented a motion to reconsider the order, alleging that by the return thereof to the offended party, the court had not only violated the contract of deposit, because it was in that concept that petitioner had delivered the 100 sheets to the Manila Police Department, and that said return to Ong Shu amounted to a deprivation of his property without due process of law. It is also claimed that Article 105 of the Revised Penal Code, under whose authority the return was ordered, can be invoked only after the termination of the criminal case and not while said criminal case is still pending trial.

The court having given no heed to these protests on the part of the petitioner, the latter brought the present petition to this Court alleging that the order of the respondent judge constitutes a deprivation of petitioner's property without due process of law, violating the contract of deposit under which the sheets were delivered to the police department of the City of Manila, and determining the respective rights of petitioner and respondent Ong Shu without a previous trial of the criminal case all of which constitute a grave abuse of discretion and excess of jurisdiction. In answer to the petition, it is claimed that as respondent Ong Shu is the owner of the property, he has the right to recover possession thereof even if said property appears to have fallen into the possession of a third party who acquired it by legal means, provided that said form of acquisition is not that provided for in Article 464 of the Civil Code (where property has been pledged in a monte de piedad established under authority of the Government) ; that even if the property was acquired in good faith, the owner who has been unlawfully deprived thereof may recover it from the person in possession of the same unless a person in possession acquired it in good faith at a public sale. (Art. 559, Civil Code of the Philippines). It is also claimed that under the provisions of Article 105 of the Revised Penal Code, under which restitution is made by a return of the thing itself whenever possible, the galvanized iron sheets in question should be returned to the offended party, the owner, and that there is no provision of law requiring that the criminal case must first be finally disposed of before restitution of the goods swindled can be ordered returned to the owner. In answer to the allegation that petitioner has been deprived of his property without due process of law, it is alleged that same is without foundation because the petitioner was given ample time to be heard. As to the claim that the galvanized iron sheets in question were deposited with the Manila Police Department, it is argued that the delivery to the Manila Police Department was by virtue of the order of the court, because the said sheets, were the subject of or are the instruments of the commission of the crime of estafa, and the court had the power to order the return thereof to the owner after it had satisfied itself of the ownership thereof by the offended party. It is also alleged in defense that petitioner's rights, if any, are sufficiently protected by the bond that the court has required to be filed.

We find the case meritorious, since petitioner's good faith is not questioned. To deprive the possessor in good faith, even temporarily and provisionally, of the chattels possessed, violates the rule of Art. 559 of the Civil Code. The latter declares that possession of chattels in good faith is equivalent to title; i.e., that for all intents and purposes, the possessor is the owner, until ordered by the proper court to restore the thing to the one who was illegally deprived thereof. Until such decree is rendered (and it can not be rendered in a criminal proceeding in which the possessor is not a party), the possessor, as presumptive owner, is entitled to hold and enjoy the thing; and "every possessor has a right to be respected in his possession; and should he be disturbed therein he shall be protected in or restored to said possession established by the means established by the laws and the Rules of Court."(Art. 539, New Civil Code).

The decision of the court below, instead of conforming to Arts. 559 and 539 of the Civil Code, directs possessor to surrender the chattel to the claimant Ong Shu before the latter has proved that he was illegally deprived thereof, without taking into account that the mere filing of a criminal action for estafa is no proof that estafa was in fact committed. Instead of regarding the possessor as the owner of the chattel until illegal deprivation is shown, the court below regards the possessor of the chattel not as an owner, but as a usurper, and compels him to surrender possession even before the illegal deprivation is proved. We see no warrant for such a reversal of legal rules.

It can not be assumed at this stage of the proceedings that respondent Ong Shu is still the owner of the property; to do so it take for granted that the estafa was in fact committed, when so far, the trial on the merits has not even started, and the presumption of innocence holds full sway.

In the third place, the civil liability of the offender to make restitution, under Art. 105 of the Revised Penal Code, does not arise until his criminal liability is finally declared, since the former is a consequence of the latter. Art. 105 of the Revised Penal Code, therefore, can not be invoked to justify the order of the court below, since that very article recognizes the title of an innocent purchaser when it says:

ART. 105. Restitution . . .

The thing itself shall be restored, even though it be found in the possession of a third person who has acquired it by lawful means, saving to the latter his action against the proper person who may be liable to him.

This provision is not applicable in cases in which the thing has been acquired by the third person in the manner and under the requirements which, by law, bar an action for its recovery. (R.P.C.) (Emphasis supplied)

The last paragraph of Article 105 plainly refers to those cases where recovery is denied by the civil law, notwithstanding the fact that the former owner was deprived of his chattels through crime. One of these cases is that provided for in Art. 85 of the Code of Commerce:

ART. 85. La compra de mercaderias en almacenes o tiendas abiertas al publico causara prescripcion de derecho a favor del comprador respecto de las mercaderias adquiridas, quedando a salvo en su caso los derechos del propietario de los objetos vendidos para ejercitar las acciones civiles o criminales que puedan corresponderle contra el que los vendiere indebidamente. (Civ. 464)

Para los efectos de esta prescripcion, se reputaran almacenes o tiendas abiertas al publico:

1.o Los que establezcan los comerciantes inscritos.

2.o Los que establezcan los comerciantes no inscritos, siempre que los almacenes o tiendas permanezcan abiertos al publico por espacio de echo dias consecutivos, o se hayan anunciado por medio de rotulos, muestras o titulos en el local mismo, o por avisos repartidos al publico o insertos en los diarios de la localidad.

Notwithstanding the claim of some authors that this Art. 85 has been repealed, the fact is that its rule exists and has been confirmed by Article 1505 of the new Civil Code:

ART. 1505. Subject to the provisions of this Title, where goods are sold by a person who is not the owner thereof, and who does not sell them under authority or with consent of the owner, the buyer acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller's authority to sell.

Nothing in this Title, however, shall affect:

xxx xxx xxx

(3) Purchases made in a merchant's store, or in fairs, or markets in accordance with the Code of Commerce and special laws. (C.C.)

But even if the articles in dispute had not been acquired in a market, fair or merchant's store, still, so far as disclosed, the facts do not justify a finding that the owner, respondent Ong Shu, was illegally deprived of the iron sheets, at least in so far as appellant was concerned. It is not denied that Ong Shu delivered the sheets to Soto upon a perfected contract of sale, and such delivery transferred title or ownership to the purchaser. Says Art. 1496:

ART. 1496. The ownership of the thing sold is acquired by the vendee from the moment it is delivered to him in any of the ways specified in articles 1497 to 1501, or in any other manner signifying an agreement that the possession is transferred from the vendor to the vendee. (C.C.)

The failure of the buyer to make good the price does not, in law, cause the ownership to revest in the seller until and unless the bilateral contract of sale is first rescinded or resolved pursuant to Article 1191 of the new Civil Code.

And, assuming that the consent of Ong Shu to the sale in favor of Sotto was obtained by the latter through fraud or deceit, the contract was not thereby rendered void ab initio, but only voidable by reason of the fraud, and Article 1390 expressly provides that:

ART. 1390. The following contracts are voidable or annullable, even though there may have been no damage to the contracting parties:

(1) Those where one of the parties is incapable of giving consent to a contract;

(2) Those where the consent is vitiated by mistake, violence, intimidation, undue influence or fraud.

These contracts are binding, unless they are annulled by a proper action in court. They are susceptible of ratification. (C.C.)

Agreeably to this provision, Article 1506 prescribes:

ART. 1506. Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller's defect of title. (C.C.)

Hence, until the contract of Ong Shu with Sotto is set aside by a competent court (assuming that the fraud is established to its satisfaction), the validity of appellant's claim to the property in question cannot be disputed, and his right to the possession thereof should be respected.

It is no excuse that the respondent Ong Shu was required to post a redelivery bond. An indemnity bond, while answering for damages, is not, by itself alone, sufficient reason for disturbing property rights, whether temporarily or permanently. If the invasion is not warranted, the filing of a bond will not make it justifiable.

Questions of ownership and possession being eminently civil in character, they should not be settled by exclusive reference to the Revised Penal Code. If Ong Shu has reason to fear that petitioner Chua Hai may dispose of the chattels in dispute and thereby render nugatory his eventual right to restitution, then the proper remedy lies in a civil suit and attachment, not in an order presuming to adjudicate in a criminal case the civil rights of one who is not involved therein.

Summing up, we hold:

1) That the acquirer and possessor in good faith, of a chattel or movable property is entitled to be respected and protected in his possession, as if he were the true owner thereof, until a competent court rules otherwise;

2) That being considered, in the meantime, as the true owner, the possessor in good faith cannot be compelled to I surrender possession nor to be required to institute an action for the recovery of the chattel, whether or not an indemnity bond is issued in his favor;

3) That the filing of an information charging that the chattel was illegally obtained through estafa from its true owner by the transferor of the bona fide possessor does not warrant disturbing the possession of the chattel against the will of the possessor; and

4) That the judge taking cognizance of the criminal case against the vendor of the possessor in good faith has not right to interfere with the possession of the latter, who is not a party to the criminal proceedings, and such unwarranted interference is not made justifiable by requiring a bond to answer for damages caused to the possessor.

Wherefore, the writ of certiorari is granted, and the order of the Court of First Instance of Manila in Criminal Case No. 34250, dated July 31, 1956, is hereby revoked and set aside, as issued in abuse of discretion amounting to excess of jurisdiction. Costs against appellant Ong Shu.

Paras, C. J., Bengzon, Montemayor, Reyes, A., Bautista Angelo, Concepcion, and Endencia, JJ., concur.

Separate Opinions

FELIX, J., concurring:

The issue in this case revolves around the proposition of whether or not "goods purchased by an accused, for which he paid with a rubber check, can be seized from a third party who bought the same in good faith and for a valuable consideration before the offender, who was charged with estafa, is tried and convicted."

I concur with the reasons adduced in the majority decision but the main basis of my vote with the majority of the Court is based on the principle that Article 105 of the Revised Penal Code relied upon by the lower Court for the issuance of the order which We revoked and set aside in this instance, cannot be invoked and made applicable to the case at bar.

As it is known, among the civil liabilities established by Articles 100 to 103 of the Revised Penal Code restitution is included and Article 105 of the same Code dealing on restitution, provides the following:

ART. 105. Restitution. How Made. The restitution of the thing itself must be made whenever possible, with allowance for the deterioration or diminution of value as determined by the court.

The thing itself shall be restored, even though it be found in the possession of a third person who has acquired it by lawful means, saving to the latter his action against the proper person who may be liable to him.

This provision is not applicable in cases in which the thing has been acquired by the third person in the manner and under the requirements which, by law, bar an action for its recovery.

There is no dispute that petitioner herein, Chua Hai, purchased from Roberto Sotto 100 sheets of galvanized iron roofing in good faith and for value, and there is no denial either that this stock comes from and is a part of the 700 sheets that Roberto Sotto bought and paid with a check that bounced for lack of funds. Under such circumstances, there is no question that the purchase was perfected by the agreement of the respondent Ong Shu and defendant Sotto and as a consequence of the transaction, upon delivery of the sheets to the latter, ownership of the same was conveyed and transferred legally to the purchaser who, from that moment, with or without payment of the consideration therefor was in turn entitled to sell and convey all or a portion of the property in question to a third party who definitely acquired said goods, specially when he acted in good faith and for value. Had those goods been sold on credit by Ong Shu to Roberto Sotto, the failure of the latter to pay the purchase price thereof would not entitle the vendor, under the circumstances obtaining in the instant case, to take the goods from Chua Hai and much less without a previous court action. And the same thing can be said in the case at bar where the vendor was induced to part with his property by the issuance of a rubber check. Both in the case of sale on credit as well as on the case of sale through the payment with rubber check, the transaction is perfected and the transfer of ownership verified, the difference being only circumscribed to the liability of the first purchaser (Sotto) which in the first case would be merely civil, while in the latter case is also criminal. 1 The first sale of the property having been legally consummated, the 100 sheets of galvanized iron herein involved could not be recovered from Chua Hai even in case of Sotto's conviction of estafa, because under the terms of Article 105 of the Revised Penal Code, the restitution of the thing is not possible for the reason that said thing has been acquired by the third persons (Chua Hai) in the manner under the requirements which (in addition to the other means enumerated in the majority decision) bar, by law an action for its recovery. I am, therefore, of the opinion and thus hold that in cases where the ownership of the effects of the crime has already been transferred by the offender to an innocent third party, the restitution of the thing itself referred to in Article 105 of the Revised Penal Code must necessarily be limited to cases in which the offended party was illegally deprived of the property involved in the crime committed, such as in cases of robbery and theft, but not to cams wherein the offended party has not been deprived of his property which he delivered to the purchaser with the expectation of course, of receiving the consideration of the sale.

I, therefore, concur in the majority decision penned by Mr. Justice J. B. L. Reyes.

LABRADOR, J., dissenting:

I dissent. Before proceeding to the discussion of the facts it seems necessary for an understanding of this dissent that this is a certiorari originally instituted in this Court against an order of Judge Ruperto Kapunan, Jr. of the Court of First Instance of Manila. As a case of certiorari, not a petition for review, the only pertinent issue, as I see it, is whether under the facts and circumstances of the case the order against which the petition is instituted was issued in excess of jurisdiction or with grave abuse of discretion. The order issued by the respondent judge was provisional in character, subject to the outcome of the criminal case and any other future litigation respecting the property subject of the proceedings.

The certiorari seeks to set aside the order for the return to the complainant in criminal case No. 34250, People vs. Roberto Sotto, of 100 sheets of galvanized iron roofing which had been sold by the accused in said case to petitioner herein, Chua Hai. The order is as follows:

Counsel for the complainant in this case seeks the return of the 700 sheets of galvanized iron now with the Manila Police Department which form part of the hardware materials involved in this case. Chua Hai, one of the persons who purchased from the accused one hundred (100) pieces of the said galvanized iron sheets, opposes the said motion on the ground that the question of ownership should be determined in the proper proceedings, claiming that he has a valid title to the 100 pieces, having bought them from the accused Roberto Sotto on February 1, 1956. Roberto Sotto is presently at large, his arrest having been ordered by this Court on June 13, 1956, for failure to appear for trial.

Considering the provisions of Article 105 of the Revised Penal Code, the said 700 sheets, except five of them which are to be retained for purposes of evidence, are hereby ordered returned to the complainant, subject, however, to the condition that the complainant post a bond in an amount equal to twice the value of 100 sheets in favor of Chua Hai who has a claim of ownership to the said 100 sheets, and without prejudice on the part of said Chua Hai to file the corresponding action on the matter of ownership thereof by virtue of his purchase from the herein accused.

From the facts alleged in the pleadings prescribed in this case, we gather the following: On January 31, 1956, Roberto Sotto purchased from Youngstown Hardware, owned by Ong Shu, 700 corrugated galvanized iron sheets and 249 pieces of round iron bar for P6,137.70, and in payment thereof he issued a check drawn against the Security Bank and Trust Company for P7,000.00, without informing Ong Shu that had no sufficient funds in said bank to answer for the same. When the check was presented for payment it was dishonored for insufficiency of funds. Sotto sold 165 sheets in Pangasinan and 535 sheets in Calapan, Mindoro. Of those sold in Pangasinan, 100 was sold to petitioner Chua Hai. When the case was filed in the Court of First Instance of Manila against Roberto Sotto, for estafa, the offended party filed a petition asking that the 700 galvanized iron sheets which were deposited with the Manila Police Department be returned to him, as owner of the Youngstown Hardware. Petitioner herein opposed the motion with respect to the 100 sheets that he had bought from Sotto. Notwithstanding the opposition the court ordered the return of the galvanized iron sheets to Ong Shu. Petitioner then presented a motion to reconsider the order, alleging that by the return thereof to the offended party, the court had not only violated the contract of deposit, because it was in that concept that petitioner had deliver the 100 sheets to the Manila Police Department, and that said return to Ong Shu amounted to a deprivation of his property without due process of law. It is also claimed that Article 105 of the Revised Penal Code, under whose authority the return was ordered, can be invoked only after the termination of the criminal case and not while said criminal case is still pending trial.

The court giving no heed to these protests on the part of the petitioner, the latter brought the present petition to this Court alleging that the order of the respondent judge constitutes a deprivation of petitioner's property without due process of law, violating the contract of deposit under which the sheets were delivered to the police department of the City of Manila, and determining the respective rights of petitioner and respondent Ong Shu without a previous trial of the criminal case all of which constitute a grave abuse of discretion and excess of jurisdiction. In answer to the petition it is claimed that as respondent Ong Shu is the owner of the property, he has the right to recover possession thereof even if said property appears to have fallen into the possession of a third party who acquired it by legal means, provided that said form of acquisition is not that provided for in Article 464 of the Civil Code (where property has been pledged in a monte de piedad established under authority of the Government) ; that even if the property was acquired in good faith, the owner who has been unlawfully deprived thereof may recover it from the person in possession of the same unless a person in possession acquired it in good faith at a public sale (Art. 559, Civil Code of the Philippines). It is also claimed that under the provisions of Article 105 of the Revised Penal Code, under which restitution is made by a return of the thing itself whenever possible, the galvanized iron sheets in question should be returned to the offended party, the owner, and that there is no provision of law requiring that the criminal case must first be finally disposed of before restitution of the goods swindled can be ordered returned to the owner. In answer to the allegation that petitioner has been deprived of his property without due process of law, it is alleged that same is without foundation because the petitioner was given ample time to be heard. As to the claim that the galvanized iron sheets in question were deposited with the Manila Police Department, it is argued that the delivery to the Manila Police Department was by virtue of the order of the court, because the said sheets were the subject of or are the instruments of the commission of the crime of estafa, and the court had the power to order the return thereof to the owner after it had satisfied itself of the ownership thereof by the offended party. It is also alleged in defense that petitioner's rights, if any, are sufficiently protected by the bond that the court has required to be filed.

I find no merit in the contention that petitioner was deprived of the possession and ownership of the galvanized iron sheets without due process of law, it appearing that sufficient opportunity was given him to explain his right to the possession and ownership thereof when he presented him motion for reconsideration which the court heard and which it finally denied. The claim that the respective rights of the petitioner and the respondent owner can only be decided in the final criminal action is also without merit. The criminal case seeks to determine the fact of the commission of the crime by the accused. When as in this case it cannot be seriously contended that the galvanized iron sheet in question were not the ones that the accused had taken away from the offended party by illegal means, there is no advantage to be gained by postponing the determination of the ownership of the stolen property as between the offended party and the purchaser. Anyway, the order of the court is merely provisional in character and it is expressly provided therein that the claims of the parties to the property are to be determined in the final action that the petitioner may file, if he desires to do so.

The decision of the majority supposedly rests on the provisions of Article 599 of the Civil Code, which is as follows:

The possession of movable property acquired in good faith is equivalent to a title. Nevertheless, one who has lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same.

If the possessor of a movable lost or of which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner can not obtain its return without reimbursing the price paid therefor.

We fully agree with the majority that this Article covers the case, but we are of the humble opinion that the provision that is applicable is not paragraph 1, but paragraph 2. Granting that the petitioner was a possessor in good faith, the facts disclosed not by the information alone, but by the motion for the return of the goods and other parts of the record show that these movable properties used to belong to the respondent Ong Shu and that he was deprived thereof unlawfully because a certain person purchased it with a bogus check. As between the purchaser and Ong Shu, the lawful owner, even if the former is clothed with all the good faith, the owner of the property Ong Shu has a better right to recover possession thereof. The criminal law provides that the subject of a crime can always be recovered from whoever is in possession of the same, irrespective of the good faith of the possessor. Were we to adopt the ruling of the majority, we will be encouraging crooks because by artful connivance with supposed buyers in good faith (and the worst part of it is good faith is always presumed), we will have a holiday for crooks, thieves and robbers.

While it is true

GRSI ® Copyrightregno N94-027G.R. No. L-18536 March 31, 1965JOSE B. AZNAR vs. RAFAEL YAPDIANGCO

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-18536 March 31, 1965

JOSE B. AZNAR, plaintiff-appellant,

vs.

RAFAEL YAPDIANGCO, defendant-appellee; TEODORO SANTOS, intervenor-appellee.

Florentino M. Guanlao for plaintiff-appellant.

Rafael Yapdiangco in his own behalf as defendant-appellee.

Lorenzo Sumulong, R. B. Hilao and B. S. Felipe for intervenor-appellee.

REGALA, J.:p

This is an appeal, on purely legal questions, from a decision of the Court of First Instance of Quezon City, Branch IV, declaring the intervenor-appellee, Teodoro Santos, entitled to the possession of the car in dispute.

The records before this Court disclose that sometime in May, 1959, Teodoro Santos advertised in two metropolitan papers the sale of his FORD FAIRLANE 500. In the afternoon of May 28, 1959, a certain L. De Dios, claiming to be a nephew of Vicente Marella, went to the Santos residence to answer the ad. However, Teodoro Santos was out during this call and only the latter's son, Irineo Santos, received and talked with De Dios. The latter told the young Santos that he had come in behalf of his uncle, Vicente Marella, who was interested to buy the advertised car.

On being informed of the above, Teodoro Santos instructed his son to see the said Vicente Marella the following day at his given address: 1642 Crisostomo Street, Sampaloc, Manila. And so, in the morning of May 29, 1959, Irineo Santos went to the above address. At this meeting, Marella agreed to buy the car for P14,700.00 on the understanding that the price would be paid only after the car had been registered in his name.

Irineo Santos then fetched his father who, together with L. De Dios, went to the office of a certain Atty. Jose Padolina where the deed of the sale for the car was executed in Marella's favor. The parties to the contract thereafter proceeded to the Motor Vehicles Office in Quezon City where the registration of the car in Marella's name was effected. Up to this stage of the transaction, the purchased price had not been paid.

From the Motor Vehicles Office, Teodoro Santos returned to his house. He gave the registration papers and a copy of the deed of sale to his son, Irineo, and instructed him not to part with them until Marella shall have given the full payment for the car. Irineo Santos and L. De Dios then proceeded to 1642 Crisostomo Street, Sampaloc, Manila where the former demanded the payment from Vicente Marella. Marella said that the amount he had on hand then was short by some P2,000.00 and begged off to be allowed to secure the shortage from a sister supposedly living somewhere on Azcarraga Street, also in Manila. Thereafter, he ordered L. De Dios to go to the said sister and suggested that Irineo Santos go with him. At the same time, he requested the registration papers and the deed of sale from Irineo Santos on the pretext that he would like to show them to his lawyer. Trusting the good faith of Marella, Irineo handed over the same to the latter and thereupon, in the company of L. De Dios and another unidentified person, proceeded to the alleged house of Marella's sister.

At a place on Azcarraga, Irineo Santos and L. De Dios alighted from the car and entered a house while their unidentified companion remained in the car. Once inside, L. De Dios asked Irineo Santos to wait at the sala while he went inside a room. That was the last that Irineo saw of him. For, after a considerable length of time waiting in vain for De Dios to return, Irineo went down to discover that neither the car nor their unidentified companion was there anymore. Going back to the house, he inquired from a woman he saw for L. De Dios and he was told that no such name lived or was even known therein. Whereupon, Irineo Santos rushed to 1642 Crisostomo to see Marella. He found the house closed and Marella gone. Finally, he reported the matter to his father who promptly advised the police authorities.

That very same day, or on the afternoon of May 29, 1959 Vicente Marella was able to sell the car in question to the plaintiff-appellant herein, Jose B. Aznar, for P15,000.00. Insofar as the above incidents are concerned, we are bound by the factual finding of the trial court that Jose B. Aznar acquired the said car from Vicente Marella in good faith, for a valuable consideration and without notice of the defect appertaining to the vendor's title.

While the car in question was thus in the possession of Jose B. Aznar and while he was attending to its registration in his name, agents of the Philippine Constabulary seized and confiscated the same in consequence of the report to them by Teodoro Santos that the said car was unlawfully taken from him.

In due time, Jose B. Aznar filed a complaint for replevin against Captain Rafael Yapdiangco, the head of the Philippine Constabulary unit which seized the car in question Claiming ownership of the vehicle, he prayed for its delivery to him. In the course of the litigation, however, Teodoro Santos moved and was allowed to intervene by the lower court.

At the end of the trial, the lower court rendered a decision awarding the disputed motor vehicle to the intervenor-appellee, Teodoro Santos. In brief, it ruled that Teodoro Santos had been unlawfully deprived of his personal property by Vicente Marella, from whom the plaintiff-appellant traced his right. Consequently, although the plaintiff-appellant acquired the car in good faith and for a valuable consideration from Vicente Marella, the said decision concluded, still the intervenor-appellee was entitled to its recovery on the mandate of Article 559 of the New Civil Code which provides:

ART. 559. The possession of movable property acquired in good faith is equivalent to title. Nevertheless, one who lost any movable or has been unlawfully deprived thereof, may recover it from the person in possession of the same.

If the possessor of a movable lost or of which the owner has been unlawfully deprived, has acquired it in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid therefor.

From this decision, Jose B. Aznar appeals.

The issue at bar is one and simple, to wit: Between Teodoro Santos and the plaintiff-appellant, Jose B. Aznar, who has a better right to the possession of the disputed automobile?

We find for the intervenor-appellee, Teodoro Santos.

The plaintiff-appellant accepts that the car in question originally belonged to and was owned by the intervenor-appellee, Teodoro Santos, and that the latter was unlawfully deprived of the same by Vicente Marella. However, the appellant contends that upon the facts of this case, the applicable provision of the Civil Code is Article 1506 and not Article 559 as was held by the decision under review. Article 1506 provides:

ART. 1506. Where the seller of goods has a voidable title thereto, but his, title has not been voided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller's defect of title.

The contention is clearly unmeritorious. Under the aforequoted provision, it is essential that the seller should have a voidable title at least. It is very clearly inapplicable where, as in this case, the seller had no title at all.

Vicente Marella did not have any title to the property under litigation because the same was never delivered to him. He sought ownership or acquisition of it by virtue of the contract. Vicente Marella could have acquired ownership or title to the subject matter thereof only by the delivery or tradition of the car to him.

Under Article 712 of the Civil Code, "ownership and other real rights over property are acquired and transmitted by law, by donation, by testate and intestate succession, and in consequence of certain contracts, by tradition." As interpreted by this Court in a host of cases, by this provision, ownership is not transferred by contract merely but by tradition or delivery. Contracts only constitute titles or rights to the transfer or acquisition of ownership, while delivery or tradition is the mode of accomplishing the same (Gonzales v. Rojas, 16 Phil. 51; Ocejo, Perez and Co. v. International Bank, 37 Phil. 631, Fidelity and Deposit Co. v. Wilson, 8 Phil. 51; Kuenzle & Streiff v. Wacke & Chandler, 14 Phil. 610; Easton v. Diaz Co., 32 Phil. 180).

For the legal acquisition and transfer of ownership and other property rights, the thing transferred must be delivered, inasmuch as, according to settled jurisprudence, the tradition of the thing is a necessary and indispensable requisite in the acquisition of said ownership by virtue of contract. (Walter Laston v. E. Diaz & Co. & the Provincial Sheriff of Albay, supra.)

So long as property is not delivered, the ownership over it is not transferred by contract merely but by delivery. Contracts only constitute titles or rights to the transfer or acquisition of ownership, while delivery or tradition is the method of accomplishing the same, the title and the method of acquiring it being different in our law. (Gonzales v. Roxas, 16 Phil. 51)

In the case on hand, the car in question was never delivered to the vendee by the vendor as to complete or consummate the transfer of ownership by virtue of the contract. It should be recalled that while there was indeed a contract of sale between Vicente Marella and Teodoro Santos, the former, as vendee, took possession of the subject matter thereof by stealing the same while it was in the custody of the latter's son.

There is no adequate evidence on record as to whether Irineo Santos voluntarily delivered the key to the car to the unidentified person who went with him and L. De Dios to the place on Azcarraga where a sister of Marella allegedly lived. But even if Irineo Santos did, it was not the delivery contemplated by Article 712 of the Civil Code. For then, it would be indisputable that he turned it over to the unidentified companion only so that he may drive Irineo Santos and De Dios to the said place on Azcarraga and not to vest the title to the said vehicle to him as agent of Vicente Marella. Article 712 above contemplates that the act be coupled with the intent of delivering the thing. (10 Manresa 132)

The lower court was correct in applying Article 559 of the Civil Code to the case at bar, for under it, the rule is to the effect that if the owner has lost a thing, or if he has been unlawfully deprived of it, he has a right to recover it, not only from the finder, thief or robber, but also from third persons who may have acquired it in good faith from such finder, thief or robber. The said article establishes two exceptions to the general rule of irrevindicability, to wit, when the owner (1) has lost the thing, or (2) has been unlawfully deprived thereof. In these cases, the possessor cannot retain the thing as against the owner, who may recover it without paying any indemnity, except when the possessor acquired it in a public sale. (Del Rosario v. Lucena, 8 Phil. 535; Varela v. Finnick, 9 Phil. 482; Varela v. Matute, 9 Phil. 479; Arenas v. Raymundo, 19 Phil. 46. Tolentino, id., Vol. II, p. 261.)

In the case of Cruz v. Pahati, et al., 52 O.G. 3053 this Court has already ruled that

Under Article 559 of the new Civil Code, a person illegally deprived of any movable may recover it from the person in possession of the same and the only defense the latter may have is if he has acquired it in good faith at a public sale, in which case, the owner cannot obtain its return without reimbursing the price paid therefor. In the present case, plaintiff has been illegally deprived of his car through the ingenious scheme of defendant B to enable the latter to dispose of it as if he were the owner thereof. Plaintiff, therefore, can still recover possession of the car even if it is in the possession of a third party who had acquired it in good faith from defendant B. The maxim that "no man can transfer to another a better title than he had himself" obtains in the civil as well as in the common law. (U.S. v. Sotelo, 28 Phil. 147)

Finally, the plaintiff-appellant here contends that inasmuch as it was the intervenor-appellee who had caused the fraud to be perpetrated by his misplaced confidence on Vicente Marella, he, the intervenor-appellee, should be made to suffer the consequences arising therefrom, following the equitable principle to that effect. Suffice it to say in this regard that the right of the owner to recover personal property acquired in good faith by another, is based on his being dispossessed without his consent. The common law principle that where one of two innocent persons must suffer by a fraud perpetrated by another, the law imposes the loss upon the party who, by his misplaced confidence, has enabled the fraud to be committed, cannot be applied in a case which is covered by an express provision of the new Civil Code, specifically Article 559. Between a common law principle and a statutory provision, the latter must prevail in this jurisdiction. (Cruz v. Pahati, supra)

UPON ALL THE FOREGOING, the instant appeal is hereby dismissed and the decision of the lower court affirmed in full. Costs against the appellant.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Dizon, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

GRSI ® Copyrightregno N94-027G.R. No. L-24490 May 29, 1968CIRIACO LANDA vs. FRANCISCO TOBIAS, ET AL.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-24490 May 29, 1968

CIRIACO LANDA, plaintiff-appellant,

vs.

FRANCISCO TOBIAS, Municipal Mayor; EMILIANO DEL CAMPO, Municipal Treasurer; REGIO B. SUBONG, Chief of Police; JUANITO PECATE and JUANITO ALFARO, Municipal Policemen, Cabatuan, Iloilo, defendants-appellees.

Pedro Puga for plaintiff-appellant.

A. M. Bolinao, Jr. for defendants-appellees.

CONCEPCION, C.J.:p

From an order of the Court of First Instance of Iloilo dismissing the complaint in this case, plaintiff has come directly to the Supreme Court, upon the ground that only questions of law would be raised in the appeal.

On June 23, 1962, defendants Juanito Pecate and Juanito Alfaro, members of the police force of Cabatuan, Iloilo, purporting to act pursuant to section 538 of the Revised Administrative Code, seized from plaintiff Ciriaco Landa a carabao, for which he produced a certificate of ownership in the name of Pantaleon Elvas. Said peace officers turned the carabao over to the municipal treasurer of Cabatuan, defendant Emiliano del Campo, who, on July 25, 1962, upon the authority of section 540 of said Code, sold the animal at public auction, which was duly approved by the Provincial Board on July 26, 1963. In an affidavit dated June 25, 1962, Landa tried to explain that he had acquired the carabao, by barter with an older carabao, from Marcelino Mayormente, who, on August 1, 1962, was charged, in the Justice of the Peace Court of Cabatuan, with swindling; but he has not been apprehended up to the present.

On or about April 16, 1963, Landa commenced in said court, the present action against Francisco Tobias, the Municipal Mayor of Cabatuan, its Municipal Treasurer, Emiliano del Campo, its Chief of Police, Regio B. Subong, and the aforementioned policemen, Juanito Pecate and Juanita Alfaro, for the recovery of damages with costs, upon the ground that he (plaintiff) had been wrongfully deprived of the possession of the carabao above referred to. In their answer, the defendants alleged, inter alia, that the acts complained of had been performed by them in accordance with law.

Said court having, in due course, rendered judgment in favor of the defendants, plaintiff appealed to the Court of First Instance of Iloilo, in which the parties submitted a partial stipulation of facts. Later on, after the presentation of plaintiff's evidence, which consisted of his testimony and some exhibits, the defendants moved to dismiss the case, which the Court of First Instance granted. Plaintiff's subsequent motion for new trial having been denied, he interposed the present appeal.

Plaintiff maintains that the lower court erred in holding that he had no title to the carabao, for non-compliance, on his part, with the provisions of the Revised Administrative Code, requiring the registration of cattle, prescribing the procedure for the transfer thereof, regulating amendments to certificates of ownership, and establishing the necessity of registration and issuance of a certificate of transfer in order that the same may be valid. He invokes the provision of the Civil Code, governing contracts in general, to the effect that "contracts shall be obligatory in whatever form they may have been entered into provided all essential requisites for their validity are present." 1 In addition, to the essential requisites specified in the Civil Code, the Revised Administrative Code prescribes, however, another requisite, as regards the transfer of title to cattle, namely, the registration of said transfer and the issuance to the transferee of the corresponding certificate of transfer, 2 neither of which has been proven in the case at bar.

Although plaintiff claimed to have the aforementioned certificate of transfer, but he did not produce the same. In fact, plaintiff could not possibly have such certificate, for the carabao was allegedly conveyed to him by Marcelino Mayormente, whereas the registered owner is Pantaleon Elvas and plaintiff knew this fact and there is no competent proof that Elvas had ever assigned the animal to Mayormente. Again, the complaint for swindling filed against Mayormente indicates that the carabao did not belong to him. Regardless of the aforementioned provisions of the Revised Administrative Code, the title to the carabao could not have passed, therefore, to Landa, in consequence of his alleged transaction with Mayormente, who had no such title. It may not be amiss to note that Mayormente might be no more than a figment of the imagination, for he has neither taken the witness stand nor been found.

Apart from this, the certificate of ownership, Exhibit A, produced by the plaintiff to patrolmen Pecate and Alfaro was not in plaintiff's name and admittedly bore sign of tampering. Although the blank spaces in said printed form were filled with words and figures written in indelible pencil, the spaces for the year of its issuance and the age of the animal described therein have traces of erasures and the figures 59 and 3, respectively, are written thereon in ink, to indicate that the certificate had been issued in 1959 and that said carabao was then three (3) years of age. The original record of said document shows that it was issued in 1961 and the age of said carabao was then one year and a half .

Under these circumstances, it is clear that the policemen had reasonable grounds to suspect that plaintiff's possession of the carabao was unlawful, as well as to seize the animal and deliver the same to the municipal treasurer, as provided in Section 538 of the Revised Administrative Code. 3 Pursuant thereto and to Section 540 of the same Code, 4 said municipal treasurer had, not only the authority, but, also, the "duty" to issue, post and cause to be served a notice of the seizure or taking of said animal, and, if the owners thereof "fail to present themselves within the time specified in the notice and prove title to the animals taken or seized as aforesaid," notice of such fact shall be given by said officer to the provincial board, "which shall order said animals to be sold at public auction," after giving the notice prescribed in said legal provision. The "purchaser at such sale shall" in the language of Section 540 "receive a good and indefeasible title to the animal sold."

Even if plaintiff were hypothetically the true owner of the carabao in question, his only remedy was, accordingly, to claim it before the municipal treasurer and prove to the latter his (plaintiff's) title thereto, either prior to or at the time of the auction sale. Not having done so, plaintiff can not now make such claim judicially and try to prove his title which, after all, he has failed to establish much less seek indemnity from the public officers who, by reason of their official duties, had a hand in the seizure and sale of the carabao.

Considering the stipulation of the parties herein, to the effect that said sale had been "duly approved by the Provincial Board," apart from the legal presumption "that official duty has been regularly performed" 5 we must assume that defendants herein had complied with the requirements of the legal provisions above referred to, and, consequently, they can not be held liable for the aforesaid seizure and sale.

Plaintiff further alleges that the lower court erred in not declaring that the public auction of the carabao in question as "astray" is against the law, because the animal was taken or seized from him, not found astray. This pretense is groundless. It is not borne out by paragraph 3 of the partial stipulation of facts cited by him in support thereof. The sale at public auction was held pursuant to the aforementioned Section 540, captioned "Sale of unclaimed" not astray "animal," although referring to "all estray and all animals recovered from thieves or taken by peace officers from persons unlawfully or reasonably suspected of being unlawfully in possession of the same" which are the subject-matter of Section 538 the owners of which "fail to present themselves within the time fixed in the notice and prove title to the animals taken or seized as aforesaid." Such is precisely, the situation obtaining in the case at bar.

WHEREFORE, the order appealed from is hereby affirmed, with costs against plaintiff-appellant, Ciriaco Landa.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Angeles, JJ., concur.

Fernando, J., took no part.

GRSI ® Copyrightregno N94-027G.R. No. L-1748 June 1, 1906BISHOP OF CEBU vs. MARIANO MANGARON

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-1748 June 1, 1906

THE BISHOP OF CEBU, REPRESENTING THE ROMAN CATHOLIC CHURCH, plaintiff-appellee,

vs.

MARIANO MANGARON, defendant-appellant.

L.D. Hargis, for appellant.

Hartigan, Marple, Solignac and Gutierrez, for appellee.

PER CURIAM.:p

The plaintiff in this case relates to a tract of land in the district of Ermita of this city, it is alleged is at present occupied by the defendant. The object of the original complaint was to recover the possession of the said land, while in the amended complaint the plaintiff prays that the said land be declared to be the property of the Catholic Church and that it be restored to the latter. Counsel for appellant admits in his brief that the object of the action is the recovery of possession when he refers to the judgment of the court below as being "in favor of the plaintiff in an action to recover the possession of certain real estate." (Record, p. 1.)

Neither party has exhibited any title papers to the land in question nor pay other documentary proof. They have only offered certain parol evidence as to the former possession of the land and as to certain acts of ownership exercised by the parties over the same.

The court below found (a) "that the defendant's parents and brothers had been in possession of the land in question until about the year 1887;" (b) "that it had not been clearly shown in what capacity they had occupied the lands;" (c) "that about the year 1887 the defendant and his relatives vacated the land by the virtue of an order from the municipality, which declared that the land was included within the zone of materiales fuertes (fire zone) and the houses in which they lived upon the said land without objection;" (d)"that after the land was vacated the parish priest of the Ermita Church fenced the land and cleaned the same without any objection whatsoever on the part of anyone; that the plaintiff claimed that this property had belonged to the Catholic Church from the time immemorial, the defendant, his parents and brothers having occupied a part thereof by the mere tolerance of the Catholic Church," (e) "that in the year 1898 the defendant, without the consent of anyone, entered upon the land in question and built thereon a nipa house and continued to live thereon without the consent of the parish priest of the Ermita Church or the plaintiff in third case." (Bill of exceptions, p. 11.) The court then ordered "that the defendants vacate the land described in the complaint and pay the costs of this action" (p. 12).

Counsel appellant says in his brief "that the defendant claims to be owner of the land by inheritance." (Brief, p. 8.) It is not necessary for this court to apply to the present case the well-settled doctrine that it is not sufficient to allege a universal title of inheritance without showing the manner and form in which such title was converted into a singular title in favor of the person invoking the same, particularly where, as in the present, case, the question involved does not relate to the ownership of the property but rather to who has the better right to the possession of the same. But the court below suggest that there are several brothers of the defendant who might also claim the same right to occupy the land but who, however, had not done so. The court says "from the evidence introduced at the trial and from the fact that the defendant's brothers do not claim any right to the land in question, it seems that the claim of the plaintiff is the more credible." (Bill of exceptions, p. 11.)

The complaint is directed against the illegal act of spoliation committed by the defendant in October, 1898, while as he himself says there was no priest in Ermita who could take care of the church and of the land in question, the American troops having occupied the parish house according to the defendant, and the Filipino troops having occupied it according to other witness. This is one of the points as to which there is no dispute between the parties, the defendant and the witnesses of both important details relating to this matter.

Counsel for appellant sums up his brief in the following paragraph:

The defendant was the legal owner of the property when he was unlawfully ejected by the plaintiff in 1879, and we insist that he had a right to reenter upon the land when he did so, the time for prescription not having expired since he was ejected in 1879 (p. 8).

Upon this point the court below said: "The occupation of the land by the defendant in the year 1898 was illegal, for, if her brought he had a right to the land, he should have applied to the courts for the possession of what belonged to him, and not proceed to occupy property claimed (he should have said possessed) by another against the will of the latter."

The conclusion of law of the trial court is entirely in conformity with the conclusion would sanction the recovery of possession through violence or other unlawful and arbitrary means, and would permit a person to take the law into his own hands. "If a person thinks that he is entitled to the property which another possesses he should claim the same from the person in possession. If the latter accedes and voluntarily returns possession and acknowledges that the property does not belong to him, there is no necessity of any one interfering, but if the person in possession refuses to deliver the property, the one who believes himself to be entitled to it, however well founded his belief may be, can not take the law into his own hands but must seek the aid of the competent authorities." (4 Manresa, Commentaries on the Civil Code, p. 163.) The action of the defendant in 1898 was therefore absolutely unlawful.

This possession held by the defendant in 1898 can not be added to the former possession, which was interrupted in 1877 by the order of the municipality, so as to consider such possession continous, the time intervening not being of sufficient duration to cover the statutory period of "a person who recovers possession according to law, which was improperly lost, is considered as having enjoyed it redound to his benefit." But in this case it appears (1) that it can not be affirmed that the possession enjoyed by the defendant was improperly lost; that possession ceased by virtue of an order from the municipality and no proof to the contrary has been offered on this point; (2) that it is impossible to say what was the nature of the possession prior to the year 1877 that is to say, whether it was held by right or by the mere tolerance of the plaintiff in this case. The code refers to the recovery of the possession, according to law, which was improperly lost, and to "recover according to law means through the proper writs and actions, or by requesting the aid of competent authorities in the special cases where the provisions of article 441 may apply." (4 Manresa, Commentaries on the Civil Code, p. 329.) "Of course," continues Manresa "the acts of violence or secrecy or mere tolerance can not affect the right of possession." Consequently the defendant in this case could never have lawfully and legally done what he did, to wit, to reenter upon the land which he had been ejected by the city of Manila. If the order of the municipality was illegal, and the possession was improperly lost, the defendant should have requested the assistance of the competent authorities to recover it. He should have applied to the executive or administrative officials, as the case might have been, or to the courts of justice in a plenary action for possession, for a year having elapsed since he was ejected from the premises, he could not maintain a summary action for possession.

The legal provisions hereinbefore quoted would be sufficient ground upon which to base the confirmation of the decision of the trial court, but on account of the facts involved in this case a question of law has been raised by the members of this court which has not been urged by the parties themselves. It is absolutely necessary to decide this question, which naturally arises from the facts alleged in the complaint. The question is whether, after the promulgation of the Civil Code, the accion publiciana, which had for its object the recovery of possession in a plenary action before an action for the recovery of title could be instituted, still existed. It is well known that under the legislation prior to the Civil Code, both substantive and adjective, there were three remedies which a party unlawfully dispossessed could avail himself of, to wit: The accion interdictal, which could be brought within a year, in a summary proceeding; the plenary action for possession in an ordinary proceeding, which could only be brought after the expiration of a year; and the action for title in an ordinary proceeding, which was brought in case the plenary action for possession failed. The accion interdictal had for its object the recovery of the physical possession; the plenary action for possession, the better right to such possession; and the action for title, the recovery of the ownership.

We lay down as a conclusion that if the plaintiff, when he was deprived in October, 1898, of the possession which he had enjoyed quietly and peacefully for twenty years, more or less, had within a year instituted the accion interdictal, or summary action for possession, he would have been, necessarily and undoubtedly, restored to the possession of the land. It would have availed the defendant nothing to allege, as he now alleges, that he had merely recovered the possession which he improperly lost in 1877, when he dispossessed the plaintiff as he did. Any tribunal, in the same arbitrary manner in which the defendant dispossessed the party in possession, would have condemned the said defendant to return the possession to that party.

But a year elapsed and the plaintiff brought this summary action for possession, and we also lay down as a conclusion that such summary action for possession could not be maintained, either under the old Code of Civil Procedure or under the new Code of Procedure in Civil Actions. (Laws 1 and 2, title 34 of the Novisima Recopilacion; art. 1635 of the Spanish Code of Civil Procedure and sec. 80 of the present Code of Procedure in Civil Actions.)

This quiet and peaceful possession of twenty years, more or less, thus lost in a moment, could not be recovered in a summary action for possession after the expiration of one year, but possession could still be recovered through the accion publiciana, which involved the right to possess. This latter action would be then based upon the fact that he, having been in possession for twenty years, could not lose the same until he had been given an opportunity to be heard and had been defeated in an action in court by another with a better right. (The same laws.) This fact of itself would have been sufficient to recover the possession, not in summary, but in a plenary action, in which it would likewise have availed the defendant nothing to allege that all that he did was to recover a possession improperly lost in 1877. In one way or the other the plaintiff would have recovered such possession, in the first case the physical possession and in the second case the right to possess, which is not lost by the mere occupation of a third person, whether such occupation was effected violently, secretly, or arbitrarily.

But the doubt which now exists is whether, after the promulgation of the Civil Code, the accion publiciana continued to exist.

The doubt arises from the provisions of article 460 of the Civil Code, which reads as follows:

The possessor may lose his possession

1. By the abandonment of the thing.

2. By transfer to another for a good or valuable consideration.

3. By the destruction or total loss of the thing or by the thing becoming unmarketable.

4. By the possession of another, over against the will of the former possessor, if the new possession has lasted more than one year.

The last provision of this article has given rise to the doubt whether possession which is lost by the occupation of another against the will of the former possessor is merely possession de facto or possession de jure.

The most powerful reason why it is thought that it refers to possession both de facto and de jure is that, whereas the two are equally lost in the manner indicated in the first three provisions of this article, it would be rather strange that the fourth provision should only refer to possession de facto.

This, however, is not convincing because not only can the right of possession of any kind be lost in the aforesaid three ways, but the right of ownership as well. It could not be inferred from this, however, that the right of ownership can be lost in the fourth manner indicated. The legislation and the jurisprudence of all countries will allow a party after he has lost possession to bring an action to recover the ownership of the property that is to say, to recover what belongs to him except where he is barred by the statute of limitations. There is no law fixing one year and one day as the period of prescription of such actions.

Manresa expressly propounds this question and says:

Meditation upon the nature of possession, being convinced as we are of the fact that possession constitutes a right, a right in rem, whenever it is exercised over real property or property rights, has merely served to strengthen as far as possible our conviction of the existence of the accion publiciana. We confess, willing to rely only upon a sound basis, that a doubt has occurred to us as to whether or not such action should be exercised by the possessor, as we find nothing definite upon which to place such reliance, although we have noticed that most of the authors admit that he should, and we know that where there is a right there is a cause of action.

We have later seen this question raised and the proposition advanced that, although, as an exception to the general rule, such action is based upon equity, but as equity is not sufficient to allow the exercise of such action, it would be necessary to have a legal provision, an article in the code, establishing the same, a provision and an article which do not exist, and their nonexistence shows that there is no such thing as the accion publiciana.

That we have no knowledge of the existence of any legal text or recent provisions which expressly relate to such action, is true. The same thing is true in France. However, the majority of the authors admit its existence. Among us it existence is also generally admitted by the authorities on civil and procedural law. But we do not desire to base our conclusions upon the arguments of the authorities, particularly when we note that Sanchez Roman is the only one who has attempted to support in any way his conclusions. It is sufficient, says this author, that the right existing, there should be an action to protect it. There is no necessity of any special declaration in the Civil Code.

We are of the same opinion as the author in question, but certainly not because we believe that if the possessor is deprived of the accion publiciana his right ceases to be a right in rem. In regard to this matter we refer to what we have already said in our preliminary consideration of the question of possession.

In regard to this matter the idea is present in the code that possession should be considered as an actual right and it is so stated in various articles of that code, as for instance in article 438. It would be impossible to admit that a mere physical act would confer all the rights which a possessor ordinarily enjoys.

Article 445 presupposes that possession may be considered either as de facto or de jure, for when it refers to controversies arising from the possession de facto, it clearly indicates that other controversies may arise which would not relate to the possession de facto. Further it can not be conceived that had its intent been different it should have preferred actual possession to any other possession. The article in question ends with the following significant words: "The thing shall be placed in deposit or judicial keeping until the possession or ownership thereof is decided in the proper manner." That is to say, the question of fact can not be determined until the question of law has been decided either in regard to the ownership or in regard to the possession (pp. 220-221).

Further, let us take another subject, for instance, the subject for easements. It was generally believed that the accion confesoria existed. Vain delusion! We have carefully examined all the provisions of the code relating to easements and we find absolutely nothing in regard to such an action. Then the accion confesoria is another error. It does not really exist. Then, if the owner of the dominant estate is denied the use of the easement, it would not be because he has not a right to such use of it. The only thing that he has not is the action.

No; such an absurdity can not be admitted. It is impossible to conceive that a person has a right which need not be respected by others, and such respect can not be exacted unless the law provides an adequate remedy for its enforcement. If a person has aright over any kind of property, such right would not be complete unless it could be enforced as against the whole world. The action is the recognition of the right; it is the weapon for its protection; the right certainly does not arise from the action, but on the contrary the action arises from the right. There is a right recognized by the code then this is sufficient! That right necessarily carries with it the action to enforce it, the life-giving force. The action is, under this aspect, the actual enforcement of the right, and these two things are so closely allied that if the action is denied the right is also virtually and actually denied. the accion publiciana, therefore, exists, not for the sake of equity, but because it must necessarily exist if the right to possession exists or can exist as provided in article 445, and as is inferred from the other articles of the code dealing with this subject.

There are not, in reality, any practical difficulties, for the courts consider as owners many who are simply possessors, and actions for title are maintained upon evidence which appears to be proof of ownership, but which in reality is not, for the reason that the title under which such ownership is claimed is not always in question, but merely its superiority over the claim of title of another. In a word, it is necessary to state the nature of the action but not the name by which it is known, and the claim being a just one, it is allowed in an action for title which in a multitude of cases would be nothing but an accion publiciana (plenary action for possession). Do not give the name of the action because it is not necessary; merely ask that the right be enforced. Who can reject the claim ? (Pages 223-224.)

Paragraph 4 of article 460 is not an innovation in the Civil Code, nor does it mean the modification or reformation of the old law. Law 17, title 30 of the third Partida contains the same provision: "One who holds property can not lose the possession thereof except in one of the following manners: (1) If he is ejected from it by force; (2) if another person occupies in while he is absent and upon his return refuses him admission. . . . But although he may lose the possession in either of the aforesaid manners, he can, however, recover the same, and even the title thereto by an action in court." There is no doubt that paragraph 4 of article 460 is nothing but a repetition of the law in force prior to the Civil Code. He who loses possession in either of these ways may demand the return of the same in an action in court, as well as the ownership of the property, the glossator in expanding the word juizio which appears in the law, saying, "by means of an action, unde vi, namely, that of recovery, or by any such restorative means." So that the possession thus lost may be recovered not only in an action unde vi but some other restorative means, such as the accion publiciana or a penal action; this aside from an action for title.

Law 2, title 34, book 11 of the "Novisima Recopilacion" contains in its title the following prohibitive provision: "No one shall be deprived of his possession until he has had an opportunity to be heard and his right is defeated in accordance with the law."

As a legal precedent to paragraph 4 of article 460 we have law 3, title 8, of the same book 11, which says: "The laws of some cities provide that he who has been in possession of a building, vineyard, or other land for one year and one day, peacefully and adversely to the person claiming to be entitled to such possession who travels in and out of the village, shall not be held responsible therefor. There being doubt as to whether such possession for the period of one year and one day requires title in good faith, we, to dispell this doubt, do hereby order that he who holds such possession for the period of one year and one day shall not be exempt from liability therefor while in possession unless such possession of one year and one day was accompanied by title in good faith."

If the whole provision of article 460, paragraph 4, was contained in the old law and such was the meaning and efficacy that possession of one year and one day had under the said old law, the courts must give some satisfactory and convincing explanation why the meaning and efficacy of such possession of one year and one day referred to in the code should be different. We are unable to give such explanation, because in the act which was the basis of the present code nothing new was provided upon this subject, nor was any rule or procedure specified by which the various sections of the new law should be governed. Therefore the provisions of the code should be construed, as to the possession of one year and one day, as they were construed in the prior legislation, unless it appears that the intention of the legislature was otherwise that is to say, unless it appears that the said legislature intended exactly the contrary of what had been established preceding the enactment of the code.

The right acquired by the person who has been in possession for one year and one day is the right that the former possessor lost by allowing the year and one day to expire. The right is lost by the prescription of the action. And the action which prescribes upon the expiration of the year is "the action to recover or to retain possession; " that is to say, the interdictory action. (Art. 1968, par. 1.) then the only right that can be acquired now, as before, by the person who was in possession for one year and one day is that he can not be made to answer in an interdictory action, but this is not so in a plenary action unless he had some title in good faith. The former possessor who had been in possession for twenty years, more or less, was considered as owner, and unless he was given an opportunity to be heard, and was defeated in law, he could not be deprived of such possession; and notwithstanding all this, and in spite of such prohibition, the maintenance of a possession wrongfully taken from the former possessor by a willful act of the actual possessor had to be sustained.

The lessee, the depositary, the pledgee, the intruder, the usurper, the thief himself, after the expiration of a year would not be responsible for the possession of which the lawful possessor was wrongfully deprived, and if the latter could produce no evidence of his right of ownership the only thing that he could do according to the contrary theory it would be impossible for him to recover such possession thus lost by any other means.

If, in addition to the fact of possession, the action for the enforcement of which prescribes after the expiration of one year and one day, there exists without any doubt whatsoever the right to possess (or more properly speaking in the case at bar, to continue to possess, which said right of possession would be a right in rem, such possession would not be on a less favorable footing than a mere possession de facto; and, if in the latter case the interdictory action lies, the action which existed prior to the enactment of the code, to wit, the accion publiciana, should continue to lie in the former case. The code establishes rights and the Law of civil Procedure prescribes actions for the protection of such rights, and we can not look to the code to find any provision defining the action which every civil right carries with it.

This is the reason why as a title of chapter 3 of the code in which article 460 is included, and a sanction of the whole of title 5, book 2, which deals with possession, article 446 provides that every possessor has a right to be respected in his possession, and should he be disturbed therein, he must be protected or possession must be restored to him by the means established in the laws of procedure.

The code refers to the laws of procedure enacted in Spain in 1881 and extended to the Philippines in 1888. Article 1635 of the old Code of Civil Procedure makes provision for summary proceedings to retain or to recover, to protect or to restore, possession, provided the action is brought within a year, but after the expiration of this period the party may bring such action as may be proper. This latter action, as has been explained before, may be either the plenary action for possession referred to or an action for title. This assumed, and reading article 1635 of the old Code of Civil Procedure immediately before article 446 of the Civil Code, we are unable to conceive how that could be successfully denied after the 8th of December, 1889, when the Civil code went into effect, which could not be denied prior to that date, to wit, the existence of the accion publiciana to recover the right of possession, to enforce the right to possess, which although it could not be brought within the year as a mere interdictory action for the protection of the mere physical possession, there can be no valid reason why it could not be brought after the expiration of the year in order to protect the right and not the mere physical possession.

Article 1635 of the old Code of Civil Procedure not having been repealed by the Civil Code, if the accion publiciana existed prior to its enactment, it must necessarily exist after such enactment. We consequently conclude that the action brought by the plaintiff in this case to recover the possession of which he was unlawfully deprived by the defendant can be properly maintained under the provisions of the present Civil Code considered as a substantive law, without prejudice to any right which he may have to the ownership of the property, which ownership he must necessarily establish in order to overcome the presumption of title which exist in favor of the lawful possessor, the plaintiff in this case, who had been in the quiet and peaceful possession of the land for twenty years, more or less, at the time he was wrongfully dispossessed by the defendant.

Having reached this conclusion, the judgment of the court below is accordingly affirmed, with the cost of this action against the appellant. So ordered.

Arellano, C.J., Torres, Mapa and Willard, JJ., concur.

Johnson, J., dissents.

GRSI ® Copyrightregno N94-027G.R. No. L-967 May 19, 1903 DARIO AND GAUDENCIO ELEIZEGUI vs. MANILA LAWN TENNIS CLUB

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-967 May 19, 1903

DARIO AND GAUDENCIO ELEIZEGUI, plaintiffs-appellees,

vs.

THE MANILA LAWN TENNIS CLUB, defendant-appellant.

Pillsburry and Sutro for appellant.

Manuel Torres Vergara for appellee.

ARELLANO, C. J.:p

This suit concerns the lease of a piece of land for a fixed consideration and to endure at the will of the lessee. By the contract of lease the lessee is expressly authorized to make improvements upon the land, by erecting buildings of both permanent and temporary character, by making fills, laying pipes, and making such other improvements as might be considered desirable for the comfort and amusement of the members.

With respect to the term of the lease the present question has arisen. In its decision three theories have been presented: One which makes the duration depend upon the will of the lessor, who, upon one month's notice given to the lessee, may terminate the lease so stipulated; another which, on the contrary, makes it dependent upon the will of the lessee, as stipulated; and the third, in accordance with which the right is reversed to the courts to fix the duration of the term.

The first theory is that which has prevailed in the judgment below, as appears from the language in which the basis of the decision is expressed: "The court is of the opinion that the contract of lease was terminated by the notice given by the plaintiff on August 28 of last year . . . ." And such is the theory maintained by the plaintiffs, which expressly rests upon article 1581 of the Civil Code, the law which was in force at the time the contract was entered into (January 25, 1890). The judge, in giving to this notice the effect of terminating the lease, undoubtedly considers that it is governed by the article relied upon by the plaintiffs, which is of the following tenor: "When the term has not been fixed for the lease, it is understood to be for years when an annual rental has been fixed, for months when the rent is monthly. . . ." The second clause of the contract provides as follows: "The rent of the said land is fixed at 25 pesos per month." (P. 11, Bill of Exceptions.)

In accordance with such a theory, the plaintiffs might have terminated the lease the month following the making of the contract at any time after the first month, which, strictly speaking, would be the only month with respect to which they were expressly bound, they not being bound for each successive month except by a tacit renewal (art. 1566) an effect which they might prevent by giving the required notice.

Although the relief asked for in the complaint, drawn in accordance with the new form of procedure established by the prevailing Code, is the restitution of the land to the plaintiffs (a formula common to various actions), nevertheless the action which is maintained can be no other than that of desahucio, in accordance with the substantive law governing the contract. The lessor says article 1569 of the Civil Code may judicially dispossess the lessee upon the expiration of the conventional term or of the legal term; the conventional term that is, the one agreed upon by the parties; the legal term, in defect of the conventional, fixed for leases by articles 1577 and 1581. We have already seen what this legal term is with respect to urban properties, in accordance with article 1581.

Hence, it follows that the judge has only to determine whether there is or is not conventional term. If there be a conventional term, he can not apply the legal term fixed in subsidium to cover a case in which the parties have made no agreement whatsoever with respect to the duration of the lease. In this case the law interprets the presumptive intention of the parties, they having said nothing in the contract with respect to its duration. "Obligations arising from contracts have the force of law between the contracting parties and must be complied with according to the tenor of the contracts." (Art. 1091 of the Civil Code.)

The obligations which, with the force of law, the lessors assumed by the contract entered into, so far as pertaining to the issues, are the following: "First. . . . They lease the above-described land to Mr. Williamson, who takes it on lease, . . . for all the time the members of the said club may desire to use it . . . Third. . . . the owners of the land undertake to maintain the club as tenant as long as the latter shall see fit, without altering in the slightest degree the conditions of this contract, even though the estate be sold."

It is necessary, therefore, to answer the first question: Was there, or was there not, a conventional term, a duration, agreed upon in the contract in question? If there was an agreed duration, a conventional term, then the legal term the term fixed in article 1581 has no application; the contract is the supreme law of the contracting parties. Over and above the general law is the special law, expressly imposed upon themselves by the contracting parties. Without these clauses 1 and 3, the contract would contain no stipulation with respect to the duration of the lease, and then article 1581, in connection with article 1569, would necessarily be applicable. In view of these clauses, however, it can not be said that there is no stipulation with respect to the duration of the lease, or that, notwithstanding these clauses, article 1581, in connection with article 1569, can be applied. If this were so, it would be necessary to hold that the lessors spoke in vain that their words are to be disregarded a claim which can not be advanced by the plaintiffs nor upheld by any court without citing the law which detracts all legal force from such words or despoils them of their literal sense.

It having been demonstrated that the legal term can not be applied, there being a conventional term, this destroys the assumption that the contract of lease was wholly terminated by the notice given by the plaintiffs, this notice being necessary only when it becomes necessary to have recourse to the legal term. Nor had the plaintiffs, under the contract, any right to give such notice. It is evident that they had no intention of stipulating that they reserved the right to give such notice. Clause 3 begins as follows: "Mr. Williamson, or whoever may succeed him as secretary of said club, may terminate this lease whenever desired without other formality than that of giving a month's notice. The owners of the land undertake to maintain the club as tenant as long as the latter shall see fit." The right of the one and the obligation of the others being thus placed in antithesis, there is something more, much more, than the inclusio unius, exclusio alterius. It is evident that the lessors did not intend to reserve to themselves the right to rescind that which they expressly conferred upon the lessee by establishing it exclusively in favor of the latter.

It would be the greatest absurdity to conclude that in a contract by which the lessor has left the termination of the lease to the will of the lessee, such a lease can or should be terminated at the will of the lessor.

It would appear to follow, from the foregoing, that, if such is the force of the agreement, there can be no other mode of terminating the lease than by the will of the lessee, as stipulated in this case. Such is the conclusion maintained by the defendant in the demonstration of the first error of law in the judgment, as alleged by him. He goes so far, under this theory, as to maintain the possibility of a perpetual lease, either as such lease, if the name can be applied, or else as an innominate contract, or under any other denomination, in accordance with the agreement of the parties, which is, in fine, the law of the contract, superior to all other law, provided that there be no agreement against any prohibitive statute, morals, or public policy.

It is unnecessary here to enter into a discussion of a perpetual lease in accordance with the law and doctrine prior to the Civil Code now in force, and which has been operative since 1889. Hence the judgment of the supreme court of Spain of January 2, 1891, with respect to a lease made in 1887, cited by the defendant, and a decision stated by him to have been rendered by the Audiencia of Pamplona in 1885 (it appears to be rather a decision by the head office of land registration of July 1, 1885), and any other decision which might be cited based upon the constitutions of Cataluna, according to which a lease of more than ten years is understood to create a life tenancy, or even a perpetual tenancy, are entirely out of point in this case, in which the subject-matter is a lease entered into under the provisions of the present Civil Code, in accordance with the principles of which alone can this doctrine be examined.

It is not to be understood that we admit that the lease entered into was stipulated as a life tenancy, and still less as a perpetual lease. The terms of the contract express nothing to this effect. They do, whatever, imply this idea. If the lease could last during such time as the lessee might see fit, because it has been so stipulated by the lessor, it would last, first, as long as the will of the lessee that is, all his life; second, during all the time that he may have succession, inasmuch as he who contracts does so for himself and his heirs. (Art. 1257 of the Civil Code.) The lease in question does not fall within any of the cases in which the rights and obligations arising from a contract can not be transmitted to heirs, either by its nature, by agreement, or by provision of law. Furthermore, the lessee is an English association.

Usufruct is a right of superior degree to that which arises from a lease. It is a real right and includes all the jus utendi and jus fruendi. Nevertheless, the utmost period for which a usufruct can endure, if constituted in favor a natural person, is the lifetime of the usufructuary (art. 513, sec. 1); and if in favor of juridical person, it can not be created for more than thirty years. (Art. 515.) If the lease might be perpetual, in what would it be distinguished from an emphyteusis? Why should the lessee have a greater right than the usufructuary, as great as that of an emphyteuta, with respect to the duration of the enjoyment of the property of another? Why did they not contract for a usufruct or an emphyteusis? It was repeatedly stated in the document that it was a lease, and nothing but a lease, which was agreed upon: "Being in the full enjoyment of the necessary legal capacity to enter into this contract of lease . . . they have agreed upon the lease of said estate . . . They lease to Mr. Williamson, who receives it as such. . . . The rental is fixed at 25 pesos a month. . . . The owners bind themselves to maintain the club as tenant. . . . Upon the foregoing conditions they make the present contract of lease. . . ." (Pp. 9, 11, and 12, bill of exceptions.) If it is a lease, then it must be for a determinate period. (Art. 1543.) By its very nature it must be temporary, just as by reason of its nature an emphyteusis must be perpetual, or for an unlimited period. (Art. 1608.)

On the other hand, it can not be concluded that the termination of the contract is to be left completely at the will of the lessee, because it has been stipulated that its duration is to be left to his will.

The Civil Code has made provision for such a case in all kinds of obligations. In speaking in general of obligations with a term it has supplied the deficiency of the former law with respect to the "duration of the term when it has been left to the will of the debtor," and provides that in this case the term shall be fixed by the courts. (Art. 1128, sec. 2.) In every contract, as laid down by the authorities, there is always a creditor who is entitled to demand the performance, and a debtor upon whom rests the obligation to perform the undertaking. In bilateral contracts the contracting parties are mutually creditors and debtors. Thus, in this contract of lease, the lessee is the creditor with respect to the rights enumerated in article 1554, and is the debtor with respect to the obligations imposed by articles 1555 and 1561. The term within which performance of the latter obligation is due is what has been left to the will of the debtor. This term it is which must be fixed by the courts.

The only action which can be maintained under the terms of the contract is that by which it is sought to obtain from the judge the determination of this period, and not the unlawful detainer action which has been brought an action which presupposes the expiration of the term and makes it the duty of the judge to simply decree an eviction. To maintain the latter action it is sufficient to show the expiration of the term of the contract, whether conventional or legal; in order to decree the relief to be granted in the former action it is necessary for the judge to look into the character and conditions of the mutual undertakings with a view to supplying the lacking element of a time at which the lease is to expire. In the case of a loan of money or a commodatum of furniture, the payment or return to be made when the borrower "can conveniently do so" does not mean that he is to be allowed to enjoy the money or to make use of the thing indefinitely or perpetually. The courts will fix in each case, according to the circumstances, the time for the payment or return. This is the theory also maintained by the defendant in his demonstration of the fifth assignment of error. "Under article 1128 of the Civil Code," thus his proposition concludes, "contracts whose term is left to the will of one of the contracting parties must be fixed by the courts, . . . the conditions as to the term of this lease has a direct legislative sanction," and he cites articles 1128. "In place of the ruthless method of annihilating a solemn obligation, which the plaintiffs in this case have sought to pursue, the Code has provided a legitimate and easily available remedy. . . . The Code has provided for the proper disposition of those covenants, and a case can hardly arise more clearly demonstrating the usefulness of that provision than the case at bar." (Pp. 52 and 53 of appellant's brief.)

The plaintiffs, with respect to this conclusion on the part of their opponents, only say that article 1128 "expressly refers to obligations in contracts in general, and that it is well known that a lease is included among special contracts." But they do not observe that if contracts, simply because special rules are provided for them, could be excepted from the provisions of the articles of the Code relative to obligations and contracts in general, such general provisions would be wholly without application. The system of the Code is that of establishing general rules applicable to all obligations and contracts, and then special provisions peculiar to each species of contract. In no part of Title VI of Book IV, which treats of the contract of lease, are there any special rules concerning pure of conditional obligations which may be stipulated in a lease, because, with respect to these matters, the provisions of section 1, chapter 3, Title I, on the subject of obligations are wholly sufficient. With equal reason should we refer to section 2, which deals with obligations with a term, in the same chapter and title, if a question concerning the term arises out of a contract of lease, as in the present case, and within this section we find article 1128, which decides the question.

The judgment was entered below upon the theory of the expiration of a legal term which does not exist, as the case requires that a term be fixed by the courts under the provisions of article 1128 with respect to obligations which, as is the present, are terminable at the will of the obligee. It follows, therefore, that the judgment below is erroneous.

The judgment is reversed and the case will be remanded to the court below with directions to enter a judgment of dismissal of the action in favor of the defendant, the Manila Lawn Tennis Club, without special allowance as to the recovery of costs. So ordered.

Mapa and Ladd, JJ., concur.

Torres, J., disqualified.

Separate Opinions

WILLARD, J., concurring:

I concur in the foregoing opinion so far as it holds that article 1581 has no application to the case and that the action can not be maintained. But as to the application of article 1128 I do not concur. That article is as follows:

Should the obligation not fix a period, but it can be inferred from its nature and circumstances that there was an intention to grant it to the debtor, the courts shall fix the duration of the same.

The court shall also fix the duration of the period when it may have been left to the will of the debtor.

The court has applied the last paragraph of the article to the case of a lease. But, applying the first paragraph to leases, we have a direct conflict between this article and article 1581. Let us suppose the lease of a house for 50 pesos a month. Nothing is said about the number of months during which the lessee shall occupy it. If article 1581 is applicable to this case, the law fixes the duration of the term and the courts have no power to change it. If article 1128 is applied to it, the courts fix the duration of the lease without reference to article 1581. It will, I think, be agreed by everyone that article 1581 is the law applicable to the case, and that article 1128 has nothing to do with it.

It seems clear that both parts of the article must refer to the same kind of obligations. The first paragraph relates to obligations in which the parties have named no period, the second to the same kind of obligations in which the period is left to the will of the debtor. If the first paragraph is not applicable to leases, the second is not.

The whole article was, I think, intended to apply generally to unilateral contracts to those in which the creditor had parted with something of value, leaving it to the debtor to say when it should be returned. In such cases the debtor might never return it, and the creditor might thus be deprived of his property and entirely defeated in his rights. It was to prevent such a wrong that the article was adopted. But it has no application to this case. The plaintiffs are not deprived of their rights. They get every month the value which they themselves put upon the use of the property. The time of the payment of this rent has not been left by the contract to the will of the debtor. It is expressly provided in the contract that it shall be paid "within the first five days after the expiration of each month."

Article 1255 of the Civil Code is as follows:

The contracting parties may make the agreement and establish the clauses and conditions which they may deem advisable, provided they are not in contravention of law, morals, or public order.

That the parties to this contract distinctly agreed that the defendant should have this property so long as he was willing to pay 25 pesos a month for it, is undisputed.

I find nothing in the Code to show that when a natural person is the tenant such an agreement would be contrary to law, morality, or public policy. In such a case the contract would terminate at the death of the tenant. Such is the doctrine of the French Cour de Cassation. (Houet vs. Lamarge, July 20, 1840.)

The tenant is the only person who has been given the right to say how long the contract shall continue. That right is personal to him, and is not property in such a sense as to pass to his heirs.

In this case the question is made more difficult by the fact that the tenant is said to be juridical person, and it is said that the lease is therefore a perpetual one. Just what kind of a partnership or association the defendant is does not appear, and without knowing what kind of an entity it is we can not say that this contract is a perpetual lease. Even if the defendant has perpetual succession, the lease would not necessarily last forever. A breach of any one of the obligations imposed upon the lessee by article 1555 of the Civil Code would give the landlord the right to terminate it.

GRSI ® Copyrightregno N94-027G.R. No. L-49 May 11, 1903MUNICIPALITY OF ANTIPOLO vs. COMMUNITY OF CAINTA

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-49 May 11, 1903

THE MUNICIPALITY OF ANTIPOLO, plaintiff,

vs.

THE COMMUNITY OF CAINTA, defendant.

Ledesma and Sumulong for plaintiff.

M. Torres and M. Sanchez Mijares for defendant.

ARELLANO, C.J.:p

Pablo de la Cruz, representing the community of the town of Cainta, then belonging to the district of Morong and now in the Province of Rizal, filed with general direction of civil administration, under the former Spanish government, a petition dated the 22nd of May, 1893, in which he commences by stating that his purpose is "to obtain the return of the use and enjoyment of ninety-two quiñones of common lands belonging to the said town, which a long time ago were leased to the community of the town of Antipolo of the same district of Morong." He then continued to give the history of this land, stating that under the original organization of the town of Cainta it was given to the ancestors of the inhabitants, together with other lands at a place called Balanti in the same township; that these lands were forfeited by the rebellion of the townspeople, but, they having been pardoned and having again submitted, the lands were restored to them by order of the superior government of the Islands, as commons, to the end that they might never be conveyed or encumbered; that subsequently, at a period he was unable to specify, the people of Cainta leased these lands to the people of Antipolo, in consideration of one real for each balita; that this canon was first paid to the township itself, and subsequently to the government of Morong, until in 1887, at which time the general government ordered that the common lands of Cainta should be exempt from the payment of any canon to the government, and the people of Antipolo ceased to pay the 115 pesos per annum, which, at the rate of one real per balita, they had been paying theretofore. They nevertheless continued to hold the lands, which, upon the cessation of the payment of the rent, should have been returned to the town of Cainta. The petition concludes with this prayer, addressed to the civil department of the government: "Therefore the petitioners pray for the return to our township of the use and enjoyment of our ninety-two quiñones of common land still retained by the Antipolo people, and that in due time the political or military government of Morong be directed to effect the said return, after compliance with the necessary formalities."

The hearing upon this petition by order of the central office of the civil administration consisted of an interrogatory addressed by the governor of Morong to the representatives of the two contending townships:

To the representatives of the town of Antipolo: State whether you have any written contract concerning the lease of ninety-two quiñones of land belonging to the township of Cainta, or else state the conditions of the lease and the time of its duration." To this question the following answer was given: "That they have no contract whatsoever in writing concerning the lease of the lands in question, which they consider to be the property of the town of Antipolo, they having thus received them from their ancestors.

Similar questions having been addressed to the representatives of the town of Cainta, they replied "that they have no written contract with respect to the lease of the lands in question, which the town of Antipolo has been enjoying for many years, paying into the government treasury as a ground rent the sum of 115 pesos per annum, which should now be paid into the treasury of this town, the said lands being the property of the township of Cainta, and that they are unable to state the time of the duration of this lease, as they are unacquainted with the terms of the contract made by their ancestors with the people of Antipolo." (Folio 74 of the record.)

The consulting attorney of the department, having been called upon for an opinion, stated, on July 20, 1894, that the terms and conditions upon which the alleged lease was made were unknown to him, and in an opinion dated the 18th of September said: "The existence of the contract not being evidenced by any document, the term not having been fixed, and there being no custom prevailing at the place of the execution of the contact by which leases are terminated, and it appearing, on the other hand, that the people of Cainta are the owners of these lands, the beneficial title thereto should be returned to the said town, without any other limitation of time than that prescribed for country estates in article 1577 of the Civil Code." (Folio 80 of the record.) And the bureau in which the investigation was being made reported: "From this point of view the right of the people of the town of Cainta to recover the beneficial title to their lands, and to enjoy them, is unquestionable, because the township is the owner of the fee of these lands. . . . It follows, then, that the town of Cainta is entitled to recover the title to the said lands, subject to the provisions of article 1577 of the Civil Code, there being no contract or custom established in these towns which would serve as a guide in terminating this lease. Therefore the bureau is of the opinion that your excellency might properly resolve, should you see fit to do so, to suggest to His Excellency the Governor-General of these Islands that he declare the lease of the ninety-two quiñones of land which the town of Antipolo has been enjoying the usufruct to be terminated, and to return the same to the town of Cainta. . . . This decision should be communicated to the politico-military government of Morong, to the end that, after compliance with the necessary formalities, that officer deliver to the representatives of the town of Cainta said ninety-two quiñones of common lands belonging to the said town." This opinion of the bureau, dated the 18th of February, 1896, was concurred in by the director-general of the civil administration on the 28th of the same month, and finally by the Governor General of the Islands on the same date.

Such is the administrative resolution of February 28, 1896, against which a contentious administrative complaint was filed by the municipality of Antipolo on the 3d of August following, and to which the government attorney for the contentious administrative court filed his answer April 22, 1898, the community of Cainta not having appeared to assist in the defense. The office of attorney of the contentious administrative court having been abolished and this case having been transferred to the jurisdiction of this court before the evidence had been taken, the municipality of Cainta was admitted as a party to the proceedings, and both the plaintiff and the defendant introduced their evidence in the manner and time prescribed by the court.

It is to be observed in this case: (1) That the community of Cainta has persistently demanded solely the return of the enjoyment of certain lands, while the government has ordered the return of the dominium utile to the end that upon its being consolidated with the dominium directum supposed to have been retained by the town, the lands may henceforth belonged to the said town in plenum dominium. (2) That the cause of action relied upon by the township of Cainta was a contract of lease, and the order for the return of the dominium utile of these lands in no wise conforms to the nature of this contract, as it is evident that the object of the lease, as distinguished from usufruct, and emphyteusis, can be nothing more than the user of the estate. (3) That without evidence of the existence of the supposed contract of lease, or of any of the said real rights of usufruct or emphyteusis, certain lands have been delivered to the town of Cainta in plenum dominium by means of a revindicatory action, and not by an action of unlawful detainer. This might result in a violation of the property rights of the state, of some township, or of a private individual, over which rights neither the administrative departments nor the contentious administrative courts have jurisdiction.

It is a fact, and no one has contended the contrary, that this is not a case of a contract made by the administration for the lease of some administrative service or public work, but, if anything, is a contract between the towns of Cainta and Antipolo which goes back to a very remote period about the year 1600. But, however that may be, the only thing which appears from the record is that Antipolo has been exercising the right of the enjoyment of 92 quiñones of land, subject to the payment of 1 real per balita, or the sum total of 115 pesos per annum. It is well settled, as a matter of administrative practice, that the jurisdiction conferred by the former law and by the law of September 13 (in the Philippines of November 23), 1888, upon contentious administrative courts, for the purpose of taking cognizance of questions concerning the fulfillment, interpretation, rescission, and effects of contracts entered into by the administration, is limited to contracts which have for their purpose a public service or other works of this class. (Judgment of the supreme court of Spain of December 12, 1890.) For this same reason, in another judgment of November 6, 1891, the contentious administrative court of Spain set aside the decision and all the proceedings, in a contentious suit brought concerning the lease of a building by the owner to the treasury department of the Philippines to be used by the supreme court of Manila, and held that it was settled by the decisions of the court that questions of jurisdiction are of public interest and may be raised at any stage of this case, and that the fact that the complaint has been admitted in a contentious administrative court is not an obstacle, for to so regard the admission of a complaint would imply an extension of jurisdiction contrary to the law and to the nature of the thing in litigation.

Applying these principles to the questions in this case, the complaint filed in the contentious administrative court is authorized by the law cited, of November 23, 1888, in article 1, but the subject-matter of the litigation is not. Under the provisions of article 4, paragraph 2, the contentious administrative courts are without jurisdiction to try issues of a civil or criminal character which correspond to the ordinary jurisdiction, and cases resulting from the disregard of the civil rights are regarded as of civil character and as pertaining to the jurisdiction of the ordinary courts.

The sixth paragraph of the complaint reads as follows: "In the gubernative proceedings, and doubtless by reason of a lamentable error, a question entirely foreign to its jurisdiction has been decided. The community of Cainta, claiming the ownership to the ninety-two quiñones of land in question, has brought a revindicatory action against the present possessor of these lands, to wit, my client, the community of Antipolo. Counsel is unaware of any law whatever which confers judicial authority upon the central office of the civil administration, and it is a matter which will warrant no discussion that the ordinary courts alone are invested with authority to take cognizance of complaints in which actions concerning ownership or possession are brought."

To this allegation neither the fiscal of the contentious administrative court nor the attorney for the township of Cainta has made reply.

This lack of jurisdiction can not have been unknown either to the central office of the civil administration or to the township of Cainta.

Pablo de la Cruz, himself the representative of the township of Cainta, on June 10, 1891, had presented to the central office of civil administration a petition praying for a grant of common lands, and on the 4th of November, 1892, that is to say, six months before the presentation of the petition upon which this proceeding was instituted, the first petition was decided by a decree of the Governor General which in part reads as follows: "The rights which the petitioners claim to have to the lands alleged to have been leased in usufruct almost two hundred years ago to the inhabitants of Antipolo are based solely upon a simple copy of a deed a document which can not be regarded as of any force whatever. Furthermore, even if this document were legal evidence, it would constitute a contract entered into between two towns, the performance of which can only be enforced by the ordinary courts, but under no circumstances by the administrative authorities." (Folio 33 of the printed record.) It is inexplicable that this department, which has been unable to grant common lands to the town of Cainta, including therein the 92 quiñones enjoyed by the people of Antipolo, to the end that they might thus acquire the character of common lands, which they are supposed to have in the proceedings, should shortly after direct the delivery of these lands to the township of Cainta to the end that it might enjoy the same in plenum dominium.

It follows, therefore, that the possession given the township of Cainta by virtue of the order of February 28, 1896, was wholly illegal, and that the ouster of the people of Antipolo from these lands, which they had been enjoying for a valuable consideration from time immemorial, was also illegal.

By virtue thereof we declare the decision of February 28, 1896, to be void, together with all the proceedings leading up to the same, and also declare void the delivery of the lands made by the politico-military government of Morong on the 20th of March, 1896, without special condemnation as to costs. So ordered.

Cooper, Willard, Mapa and Ladd, JJ., concur.

Torres and McDonough, JJ., did not sit in this case.