IN RE: PETITION FOR THE CANCELLATION OF AN ENCUMBRANCE. WILLIAM LI YAO, PETITIONER AND APPELLEE, VS. NARCISA B. DE LEON, LUIS DE LEON, EULALIA DE LEON, ENCARNACION DE LEON, MANU…

Appeal from an order of the Court of First Instance of Manila, directing the
cancellation of the “annotation of encumbrance”, under entry No. 5420, 5421 and
5422/T-13432, on Transfer Certificate of Title No. 46619 of tha Office of the
Register of Deeds of Manila.

This certificate of title covers a parcel of land known as Lot No. 3, Block
No. 2130, of the Cadastral Survey of Manila, which is slightly trapezoidal in
form and adjoins, on the South, Raon Street, with much more depth than frontage
thereon. It is bounded, on the East, by two lots: on the Southern portion, by
Lot No. 5 (which likewise adjoins Raon Street), and on the Northern portion, by
Lot No. 4-B, both of Block No. 2130. This Lot No. 4-B belongs to appellants
herein, Narcisa B. de Leon, Luis de Leon, Eulalia de Leon, Encarnacion de Leon,
Manuel de Leon and Amada de Leon, and is bounded on the North by oLt 6-B of the
same Block 2130, which is, in turn, bounded on the East by part of Lot 19, as
well as by Lots 21 and 23, and part of Lot 25 of the same Block. These Lots 19,
21, 23 and 25 are bounded, on the East, by Rizal Avenue, and like Lots 4-B and
6-B, they all belong to appellants herein.

It appears that said Lots 3, 4-B, 6-B, 19, 21, 23 and 25, used to belong to
Mariano Cu Unjieng and Cu Unjieng e Hijos, who, before the year 1930, had leased
said Lot No. 3, now owned by petitioner William Li Yao, and Smith Bell &
Co., Ltd., which had applied for a permit to make thereon certain constructions,
one of which was, seemingly, in the inner portion of Lot No. 3 and did not abut
on Raon Street. As a condition for the issuance of the permit, the City Engineer
of Manila demanded that a private alley, two (2) meters in width, be opened on
the eastern part of Lot No. 3, to connect said construction, in the northern
portion of said lot, with Raon Street, pursuant to section 103 of the Revised
City Ordinances, reading:

“When the application, plans, and specifications conform to the requirements
of this title and of title thirteen hereof, the city engineer shall issue a
permit for the erection of the building and shall approve in writing such plans
and specifications, one copy of which shall be returned to the owner or his
agent and one copy shall be retained by the city engineer: Provided, That
the building shall abut or face upon a public street or alley or on a private
street or alley which has been officially approved; and Provided further,
That any private street or alley opened in an interior lot for the purposes of
this section, once officially approved, shall be open to the general public, and
with its approved width preserved, shall be maintained and kept in good repair
by the grantee of the permit, his heirs, executors, and assigns, and shall never
be closed by any person so long as there is a building or other structure
abutting or facing upon such private street or alley.”

In compliance with this demand, the Cu Unjiengs executed on July 25, 1931 a
public instrument undertaking to open and maintain said private alley. The
instrument was, in September 1931, registered in the office of the Register of
Deeds of Manila under entry No. 5420, 5421 and 5422/T-13432 and annotated on
Transfer Certificates of Title Nos. 13432, 26017, 26019, 26020 and 26877 of said
office. Said entry, as set forth in Transfer Certificate of Title No. 70981,
issued in lieu of Transfer Certificate of Title No. 26017, is of the following
tenor:

“Mariano Cu Unjieng, por si y como apoderado de la entidad ‘Cu Unjieng e
Hijos en complimiento con las disposiciones de los articulos 103 y 460 de las
Ordenanzas Revisadas de la Ciudad de Manila, se obliga, sus herederos,
ejecutores, administradores y cesionarios a abrir y mantener un callejon privado
de dos metros officialmente aprobado por el Ingeniero de la Ciudad, dentro de la
parcela de terreno descrita en el presente certificado, de las descritas en los
certificados de Titulos. Nos. 26019 y 26877, Libros T-63 y T-66 del Registro y
de la Primera Parcela de Terrenos descrita en el Certificado de Titulo No. 26020
y 13432 T-63 del Registro, el cual callejon, se describe en cuanto a su
situacion, linderos y estension superficial como sigue. A PARCEL OF LAND (As
shown on plan ll-227, Office of the City Engineer), situated in the District of
Sta. Cruz. Bounded on the North by properties of Eustaquia Macalanda and Mariano
Cu Unjieng; on the East by properties of Mariano Cu Unjieng and Jose Avila and
Rizal Avenue; on the South by property of Mariano Cu Unjieng and Calle Raon; and
on the West by properties of Mariano Cu Unjieng and Eustaquia Macalanda;
containing an area of Two Hundred Five Square Meters and eighty square
decimeters (205.80) more or less.’ Son condiciones del contrato las siguientes,
que el edificio colindara o dara frente con el citado callejon; que dicho
callejon estara en buena condicion y debidamente provista con canales en ambos
lados del mismo, como requieren las regulaciones sanitarias; estara abierto al
publico y su anchura aprobada de DOS METROS sera mantenida y guardada en buen
estado de reparacion por el concesionario, sus herederos, ejecutores y
cesionarios y no se cerrara nunca por cualquiera persona mientras haya edificio
o construccion, que colinda, de frente o tenga acceso a dicho callejon privado.
(Docs. Nos. 61 y 92 pages 16 y 22, Lib. 1, Reg. del Notario Pub. de Manila, Jose
C. Zulueta, y Doc. No. 617, pag. 32 Lib. V. Reg. del Not. Publ. de Manila,
Nemesio Zamora, Fecha de la inscripcion Sept. 8, 1931 at 3:18 p.m. The foregoing
annotation has been copied from TCT No. 70981/T-242.”

Transfer Certificate of Title No. 13432, then covering Lot No. 3, was
cancelled upon acquisition thereof by petitioner William Li Yao, to whom
Transfer Certificate of Title No. 46619 was issued in lieu thereof. Meanwhile,
the aforementioned contract of lease in favor of Smith Bell & Co. had
expired and its annotation in the corresponding certificate of title was ordered
cancelled on April 8, 1952. The annotations of encumbrance on the certificates
of title covering Lots 4-A and 6-A of Block No. 2130 were also cancelled, by
order of the Court of First Instance of Manila, of the same date. Similarly, the
building or buildings of Smith Bell & Co., Ltd., which gave occasion for the
undertaking and annotation involved in this case, were destroyed during the
liberation of Manila. Upon the other hand, the aforesaid Lots 4-E, 6-B, 19, 21,
23 and 25 of Block 2130 were acquired by appellants herein.

On July 16, 1957, Li Yao, as present owner of Lot No. 3, filed, in this
cadastral record, a petition praying, under the provisions of section 112 of Act
No. 496, that the annotation of the aforementioned entry on Transfer Certificate
of Title No. 46619 be cancelled, because the building to which said entry
referred no longer exists, and the legal necessity for the private alley
mentioned therein has ceased and terminated.

Appellants herein opposed the petition upon the ground that they have on Lot
6-B a building which is used and operated as a first class theater, known as
Dalisay Theater; that the air-conditioning equipment to aircondition the Dalisay
Theater is housed in a building erected on Lot 4-B, which adjoins the northern
portion of the aforementioned alley, and is accessible only through Raon Street,
passing through, said alley; that petitioner Li Yao has in the northern portion
of Lot No. 3, a building that has no frontage on Raon Street, but abuts on said
alley; that the occupants of said building have no access to Raon Street, except
through such alley, the closure of which would make said building a veritable
fire trap; that the existence and continuance of said alley is indispensable to
the safety of the employees and patrons of the Dalisay Theater; that, in fact,
the Chief of the Fire Department of Manila has advised the management of the
Dalisay Theater that said alley is obstructed by piles of lumber, to the
prejudice of the patrons of said theater, who would find it very difficult to
evacuate the same in case of fire or other emergency, and requested that said
alley be cleared of all obstructions within a given period, under threat of
recommending the closure of the Dalisay Theater, as fire and life hazards; that
one of the conditions of the undertaking to which the entry in question refers
is that saidj’alley would be maintained and kept in good condition andTwould not
be closed, as long as there is a building or construction fronting or abutting
said alley; and that petitioner Li Yao, through his tenants occupying the
buildings erected on Lot No. 3, had made and placed obstructions along said
alley, thereby diminishing its usefulness, in violation of the terms and
conditions of the aforementioned undertaking. Appellants prayed, therefore, that
Li Yao’s petition be denied, and that he “be ordered to clean the said alley of
any and all obstruction, and to maintain the same clean, and in sanitary
condition free of filth and dirt”.

Replying to this opposition, Li Yao, alleged, inter alia, that the
building now existing on the Northern portion of Lot No. 3. is part and parcel
of the building on its Southern portion, abutting on Itaon Street, and that said
petitioner has a pending application for the construction, on said lot, of a new
builidng of strong materials, which would not necessitate the use of any private
alley.

By an order, dated August 6, 1957, the Court of First Instance of Manila
overruled appellants’ opposition and granted Li Yao’s petition. A
reconsideration of said order having been denied, the matter is now before us on
record on appeal filed by appellants, who claim that:

1. “The lower court erred in ordering the cancellation of the encumbrance in
   question notwithstanding that it had no jurisdiction to do so as a Land
   Registration Court.
2. “The lower court erred in not holding a trial on the merits, supposing
   without admitting that it had jurisdiction over the case.
3. “The lower court erred in finding that the alley in question, was intended
   only for the benefit of Smith. Bell & Co., Ltd. although there was no
   evidence on that point.
4. “The lower court erred in giving weight to the opinon of the City Engineer
   of Manila, tliat said encumbrance may now be cancelled, and in disregarding the
   view of the Fire Department of Manila that the alley should be maintained or
   continue to exist.
5. “The lower court erred in holding that the said encumbrance should be
   cancelled because the oppositors have a direct exit on Rizal Avenue.
6. “The lower court erred in not holding that the alley in question is a
   voluntary legal easement imposed by the former owner of the land and as an
   easement in favor of the community, which the public has acquired by
   prescription.
7. “The lower court erred in not holding that the encumbrance in question can
   only be cancelled by means of a municipal ordinance or by the legal modes of
   extinguishing easements.”

1. Lack of “unanimity among the parties” is alleged in support of appellants’
   objection to the jurisdiction of the lower court, under section 112 of Act No.
   496, and of their claim that the issue between them should be settled in an
   ordinary action. This pretense is untenable. The encumbrance in question was
   created by an undertaking executed by the Cu Unjiengs, whose tenant wanted to
   construct on Lot No. 3 a building which otherwise would have been inaccessible
   from any public or private street or alley. The only “parties” to said
   undertaking were the Cu Unjiengs and the city of Manila, on whose demand the
   undertaking was executed. The City of Manila through its City Engineer, who had
   actually made said demand, now agrees to the cancellation of the encumbrance
   constituted by said undertaking and of the annotation thereof, in the following
   language:

   “The within copy of petition of William Li Yao seeking cancellation of the
   Aicumbranee relating1 to tne opening of the crivate alley under Section 103 of
   the Revised Ordinances, appearing on the back of Transfer Certificate of Title
   No. 46619, was in connection with tho construction of a strong material building
   sometime during pre-war which necessitated that the building should abut or face
   on said private alley. The building in question which wag erected on said Let 3,
   Block 2130 and for which the private alley was opened to serve as exit for said
   building is no longer existing as the same was destroyed or burned during the
   liberation. In fact, William. Li Yao has now applied for building permit to
   construct a new strong material building on said lot “which will not necessitate
   the use of any private alley.
   “In view of the foregoing, and inasmuch as one
   of the conditions imposed in said application for private alley is that the same
   shall not be closed so long as there is a building abutting or facing the said
   alley and inasmuch as the said building was already destroyed, hence, there is
   no more use for said alley, this Office would interpose no objection to the
   within application of Mr. William Li Yao for the cancellation of the encumbrance
   appearing on back of Transfer Certificate of Title No. 26619” (Ist Indorsement,
   dated July 19, 1957, of City Engineer Alejo Aquino; Annex B of Reply to
   Opposition filed by Narcisa B. de Leon, et al.,)

   Having been made as a condition precedent for the construction of a building
   in the interior of Lot No. 3, said demand was evidently made for the benefit of
   the occupants of said building, not those of Lots 4-B or 6-B, now belonging to
   appellants. Whatever benefits the latter may have derived from the private alley
   in question was purely incidental to those established in the interest of the
   occupants of Lot No. 3. Despite the fact that then title was derived from the Cu
   Unjiengs, appellants ih e not parties to the undertaking aforementioned. This
   becomes apparent’ when we consider that the Cu Unjiengs rrba’ iibed it only as
   owners of Lot No. 3, and that they would have had to execute it even if Lots
   4-B, 6-B, 19, 21, 23 and 25 had not been theirs at that time. Consequently,
   appellants have no legal interest in and to said encumbrance enforceable under
   section 112 of Act No. 498, and no right to object to the exercise of the
   jurisdiction of the lower court under said provision. In short, there is
   a unanimity among the parties to said undertaking.

   The cases relied upon by the appellants are not in point. Lagula vs.
   Casimiro, 98 Phil., 102; 52 Off. Gaz., 196 involved an issue between co-owners
   regarding the manner in which their common property would be partitioned. In
   Tangunan vs. Republic (94 Phil., 171; 50 Off. Gaz., 115) the co-owners of
   a land sought cancellation, upon the ground of prescription, of an old
   annotation of a writ of execution in favor of the Government and against one of
   said co-owners. The Government, which by virtue of said annotation, had a right
   in rem, contested this claim. Casillan vs. Espartero (95 Phil.,
   799; 50 Off. Gaz. 4183) referred to a land the title to which was, due to an
   alleged clerical mistake in the corresponding decree, issued to the wrong party.
   It was held that the latter could not, on motion filed under section 112 of Act
   No. 496, be ordered to reconvey the land to the party allegedly aggrieved there.
   Similarly, in Director of Lands vs. Register of Deeds of Rizal, (92
   Phil., 826; 49 Off. Gaz., 935), a decree was erroneously issued in the name of
   the Jnunicipality of Malabon, although the decision had been rendered in favor
   of the Philippine Government. The court had no jurisdiction, we held, to compel
   the municipality of Malabon, under said section 112, to surrender its
   certificate of title, in order that another one, in the name of the Philippine
   Government, could be issued. In Enriquez vs. De Atienza (100 Phil., 1072;
   53 Off. Gaz., 7231), we declared that said provision may not be availed of to
   determine whether the title to a registered land should be cancelled, over the
   objection of the registered owner, because someone else claims to be its true
   owner. In all these cases, the parties objecting to the application of said
   section 112 were either registered ownera or co-owners or had a right in
   rem duly registered and annotated on the title to the property in question.
   Appellants herein have no such right.

   It is obviously improper to require the petitioner to sue appellants herein,
   simply because they object to the petition. If appellants feel that the alley
   should not be closed, and that the petitioner should “be ordered to .clean the
   said alley of any and all obstruction, and to maintain the same clean and in
   sanitary condition, frea from filth and dirt”—as prayed in their opposition—they
   may file therefor an ordinary action, for it is the relief they seek that can
   not be granted under said section 112 of Act No. 496.

2. Contrary to appellants’ contention, no evidence waa necessary before the
   issuance of the order appealed from, the fact therein relied upon being
   uncontroverted. Appellants merely congest the conclusions drawn therefrom.

3. The alley in question was opened and maintained in compliance with the
   provisions of section 103 of the Revised City Ordinances, which deals with the
   issuance of building construction permits by the City Engineer. Pursuant
   thereto, no such permit shall be granted unless the building concerned abuts or
   faces “upon a public street or alley or on a private street or alley which has
   been officially approved”. Consequently, such private street or alley as may
   have been opened and maintained as a condition for the authority to construct
   said building is intended only for its benefit.

4. The communication of the fire department relied upon .by appellants merely
   indicates the necessity for them, if they wish to continue operating the
   Dalisay Theater, to have a corridor that would give their patrons and employees
   an exit to Raori Street. Such communication does not conflict with the stand of
   the City Engineer to the effect that petitioner Li Yao is no longer bound
   to maintain the alley in question.

5. The fifth assignment of error need not be passed upon, in view of what has
   been said about the propriety of a separate action by the appellants, if they
   wish to compel petitioner herein to maintain the alley in question.

6. The sixth assignment of error involves a contradiction. Acquisition by
   prescription implies adverse possession or enjoyment, which is
   inconsistent with the voluntary nature of the undertaking involved in
   this case. Moreover, as above stated, the private alley in question was opened
   to give access, from Raon Street, to the interior portion of Lot No. 3, not to
   any other property.

7. The last assignment of error is devoid of merit. No legal provision or
   authority has been cited in support of the alleged need of a municipal ordinance
   to extinguish the obligation to maintain the alley in question. Moreover, the
   same was opened upon demand of the City of Manila, as a condition for the
   construction of a given building. This has already been destroyed and the City
   of Manila has agreed to the cancellation of the encumbrance. Hence, there is no
   reason for the continuance of its annotation.

Wherefore, without prejudice to such separate action as appellants herein may
deem fit to bring, the order appealed from is hereby affirmed, with costs
against said appellants. It is so ordered.

Bengzon, Acting C.J., Padilla,
Labrador, Reyes, J.B.L., and Dizon, JJ., concur.