G.R. No. 110067




Manila SECOND DIVISION G.R. No. 110067 March 13, 1997 MA. LINDA T. ALMENDRAS, petitioner, vs. THE COURT OF APPEALS, URCICIO TAN PANG ENG and FABIANA YAP, respondents. MENDOZA, J.: This is a petition to review the decision of the Court of Appeals, reversing the decision of the Regional Trial Court and dismissing petitioner's complaint for the establishment of a right of way. Petitioner is the registered owner of a parcel of land, covered by TCT No. 91180 of the Register of Deeds of Cebu and designated as Lot-B of the subdivision plan Psd-163902, in Banilad, Cebu. The land is bounded on the north and on the east by lots owned by private respondents Tan Pang Eng and Fabiana Yap, on the south by the lot owned by Celedonio Bongo, and on the west by the properties of Tomas Opone and Zosimo Opone. About 9.74 meters of the western boundary of petitioner's land abuts an existing private road, 6.00 meters wide, which passes through the lots of Tomas Opone, Vicente Lao, Manuel Opone, Luis Sison, and Silvestre Opone and leads to another private road located on the property of Bienvenido Tudtud which in turn connects to the provincial road. Sometime in September, 1987, private respondents began building a concrete wall on his property on the northern and eastern sides of petitioner's lot. For this reason, petitioner wrote private respondents on September 15, 1987 offering to buy a portion of the latter's lot, 17.45 meters long and 3 meters wide, so that petitioner could have access to the provincial road. But her request was denied by private respondents on the ground that there was an existing private road on the western side of petitioner's property providing adequate outlet to the provincial road. Private respondents claimed that granting petitioner's request would greatly reduce the value of his property, as the proposed right of way cuts across the middle of the property. Shortly thereafter, in January 1988, Celedonio Bongo also fenced his property, thus closing off the southern boundary of petitioner's lot. On January 29, 1988, petitioner brought this action in the Regional Trial Court of Cebu, Branch 16 for the establishment of a right of way (CEB-6607) through private respondents' land. Zosimo Opone subsequently closed off the western side of petitioner's property by erecting a fence on his lot, with the result that petitioner's property became inaccessible. After trial, the trial court rendered judgment for petitioner, granting her a right of way through 57.35 square meters of private respondents' property, upon payment by her of P11,470.00 as indemnity. Although there was a private road on the western and southern sides of her lot, the trial court ruled that the easements were constituted for the owners of the lots through which the private road passes and petitioner would have to negotiate with them individually to be allowed to use the private road herself. Moreover, the road had been closed on petitioner's western boundary by Zosimo Opone. Private respondents appealed. On January 29, 1993, the Court of Appeals rendered its decision, reversing the trial court and holding that the road around petitioner's lot on its western and southern boundaries was an adequate outlet for petitioner to the provincial road. This private road has a width of 6.0 meters, which allows the passage of a cargo truck, and a length of only 149 meters. Although the road is a private one, the appellate court ruled that the designation of the beneficiaries of the easement in the titles of the lots was neither specific nor exclusive, that there was no reason for petitioner not to negotiate with Zosimo Opone before bringing this case, and that the closure by Zosimo Opone of the western side of petitioner's lot was contrary to P.D. No. 1529, §50 because it was done without the approval of the Regional Trial Court as required therein. In any event, it was held that mere inconvenience to the petitioner in negotiating with numerous parties for whose benefit the easement was established was not a reason for granting petitioner an easement through private respondents' property. Petitioner filed a motion for reconsideration but her motion was denied for having been filed late and for lack of merit. Hence this petition. The preliminary question is whether petitioner's motion for reconsideration was filed within the 15-day period prescribed by the Rules for filing such motion or appealing the decision of the Court of Appeals to this Court. It appears that a copy of the decision of the appellate court was served on petitioner's counsel on February 10, 1993, so that she had until February 25 within which to file a motion for reconsideration. However, February 25, 1993 had been declared a special holiday in commemoration of the EDSA people power revolution. Hence, petitioner, in accordance with §28 of the Administrative Code of 1987, had until the next day, February 26, 1993, to file her motion, which she did. Her motion was thus timely filed. Petitioner contends that the appellate court erred in dismissing her complaint because both the Opone and Tudtud roads are private roads which were built for the benefit only of those lots through which the roads pass and, as such, cannot be considered adequate outlets within the contemplation of Art. 649 of the Civil Code. The roads not being adequate outlets, Tan was bound under the law to open up a right of way for her through his property. The issue in this case is whether or not petitioner is entitled to a right of way through private respondents' property. We hold that she has failed to prove that she has a right to the establishment of such an easement through private respondents' property. There is no dispute that the road abutting the western boundary of petitioner's lot, known as the Opone road, is an existing, passable, private road which connects to another road, the Tudtud road, on the southern side of petitioner's lot. This road leads to the Cebu-Banilad Cadre Provincial Road located on the eastern side of petitioner's lot. It appears that the lots traversed by the private road originally constituted only one lot, that is, Lot 1 of the subdivision plan PSU-89847, registered under TCT No. 55684 in the name of the Opone siblings. In May 1979, this lot was subdivided into seven lots, namely, Lot 1-A to Lot 1-G. A right of way was constituted running almost the entire length of the eastern boundary of all these lots, beginning with Lot 1-G, which belongs to Zosimo Opone, through Lot 1-A which belongs to Silvestre Opone. The servitude was annotated on the transfer certificates of title covering the seven lots, the annotations reading substantially as follows: subject to a road right-of-way from point 1 to point 4 passing through lots 1-A to 1-G which is on the eastern side. Petitioner's property abuts 9.74 meters of the aforesaid right of way. As already stated, the Opone road connects to another right of way on the property of Bienvenido Tudtud (the Tudtud road). This right of way was constituted on July 4, 1983 by Bienvenido Tudtud in favor of the individual owners of Lot 1-A to Lot 1-G by virtue of an instrument entitled "Easement of Right of Way"1 which document reads in part: Now, THEREFORE, for and in consideration of the above premises and as a gesture of his love and service to his fellowmen particularly his neighbors, the SERVIENT ESTATE hereby and these presents, agree, allow and permit the DOMINANT ESTATE to establish and have a permanent easement of right-of-way over his property described under paragraph 1 hereof but limited to a portion situated throughout the whole length of the southern side thereof as indicated in the plan hereto attached as Annex "A," . . . (Emphasis added) In holding that petitioner's right of way should be constituted on the properties on the western and southern boundaries of petitioner's lot, instead of through the land of private respondents as the trial court ruled, the Court of Appeals pointed to the fact that the Tudtud and the Opone roads already constitute permanent easements. It held that although the Tudtud easement was constituted by naming the owners of the individual lots, the annotation of the easement nevertheless categorically states that the easement is established "as a gesture of [Bienvenido Tudtud's] love and service to his fellowmen," which, the appellate court interpreted to mean for the benefit of the public in general. To begin with, the owner of a landlocked property has the right to demand a right of way through the neighboring estates.2 The easement must be established at the point which is least prejudicial to the servient estate and, whenever possible, the shortest to the highway.3 If these two conditions exist on different properties, the land where establishment of the easement will cause the least prejudice should be chosen. Thus, it has been held that "where the easement may be established on any of several tenements surrounding the dominant estate, the one where the way is shortest and will cause the least damage should be chosen. However, . . . if these two (2) circumstances do not concur in a single tenement, the way which will cause the least damage should be used, even if it will not be the shortest. [2 ARTURO M. TOLENTINO, CIVIL CODE 374 (1974)]" 4 In the case at bar, the trial court ruled that the easement should be constituted through the land of private respondents on the eastern side because it would be the shortest way to the provincial road, being only 17.ℒαwρhi৷45 meters long, compared to 149.22 meters if the easement was constituted on the Opone and Tudtud roads on the western and southern sides of petitioner's land. On the other hand, as already pointed out, the Court of Appeals, in pointing to the longer way, considered the fact that this was already existing and does not preclude its use by other parties than the individual owners of Lot 1-A to Lot 1-G and the owners of the land on which the connecting Tudtud road is found. The way may be longer and not the most direct way to the provincial road, but if the establishment of the easement in favor of petitioner on this roads will cause the least prejudice, then the easement should be constituted there. This seems to be reasoning of the Court of Appeals. However, this can only be determined if the several lot owners (i.e., the Opones and their buyers and those of Bienvenido Tudtud) are before the court, for the determination of the point least prejudicial to the owners of servient estates (if there are two or more possible sites for an easement) requires a comparative evaluation of the physical conditions of the estates. It is not possible to determine whether the estates which would be least prejudiced by the easement would be those of the owners of the Opone and Tudtud properties because they have not been heard. Although evidence concerning the condition of their estates has been presented by private respondents, it is impossible to determine with certainty which estate would be least prejudiced by the establishment of an easement for petitioner until these parties have been heard. Any decision holding them liable to bear the easement would not be binding on them since they are not parties to this action. Accordingly, the decisions of the Court of Appeals and of the Regional Trial Court should be set aside and this case remanded to the trial court so that private respondents may file a third-party complaint against the owners of servient estates through whose lands they believe the right of way sought by petitioner should be established and then prove their claim. On the basis of the evidence of all parties concerned the trial court should render a new decision. WHEREFORE, the decision of the Court of Appeals and that of the Regional Trial Court are SET ASIDE and this case is REMANDED to the Regional Trial Court for further proceedings in accordance with this decision. SO ORDERED. Regalado, Romero, Puno and Torres, Jr., JJ., concur. Footnotes 1 Records, p. 117. 2 Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the proper indemnity. Should this easement be established in such a manner that its use may be continuous for all the needs of the dominant estate, establishing a permanent passage, the indemnity shall consist of the value of the land occupied and the amount of the damage caused to the servient estate. in case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate without a permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance. This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts. 3 Art. 650. The easement of right of way shall be established at the point least prejudicial to the servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest. 4 Quimen v. Court of Appeals, G.R. No. 112331, May 29, 1996. The Lawphil Project - Arellano Law Foundation