EUFROCINA HIDALGO CABACUNGAN, AURELIA HIDALGO ROLDAN, AND TERESA HIDALGO IGLESIAS, PLAINTIFFS AND APPELLANTS, VS. QUINTIN CORRALES AND CATALINA V. CORRALES, DEFENDANTS AND APPEL…

This is an appeal from an order of the Court of First Instance of Ilocos Sur dismissing appellants’ complaint.

The complaint sets up three causes of action, but for allegedly not
pleading facts sufficient to support any of them, the court ordered it
dismissed on defendants’ motion before answer.

1. For its first cause of action, the complaint alleges in
   effect that plaintiffs, now appellants, are sisters and, together with
   three other sisters, “co-heirs and co-owners” of a piece of land
   therein described; that having been notified on September 6, 1952, that
   two of their sisters, co-heirs and co-owners — Sofia Hidalgo Soria and
   Carmen Soria Abad — had sold their undivided shares in said land to
   defendant Quintin Corrales, an outsider, and wishing to be subrogated
   to the rights of the buyer in accordance with article 1088 of the New
   Civil Code, plaintiffs, on the 10th of the same month, approached the
   said Quintin Corrales and his wife and co-defendant Catalina V.
   Corrales and tendered them P600 for that purpose, but the tender was
   refused. Plaintiffs, therefore, pray that defendants be ordered to
   allow them to exercise their right of legal redemption. Considering the
   case to be one of redemption among co-owners under article 1620 in
   connection with article 1623 of the New Civil Code and not that of
   redemption among co-heirs under article 1088 thereof, the lower court
   held the complaint insufficient for not containing “any allegation
   respecting the existence of any notice in writing by the vendor or
   vendee of the date of such notice if any” and “any allegation to show
   if the deeds of sale in favor of the defendants were registered in the
   Registry of Property and if there were any affidavit of the vendor or
   vendors to the effect that such vendor or vendors have given written
   notice of the sale or purchase to all possible redemptioners or in this
   case to the plaintiffs.” We note, however, that the complaint does
   allege that plaintiffs were, on September 6, 1952, notified of the sale
   and that on the 10th of that month they made their offer to redeem. If
   information was desired whether the notice was in writing or that the
   sale was recorded in the registry of property and there was an
   affidavit of the vendors that written notice of the sale had been given
   to plaintiffs, the complaint could have been ordered amended to include
   those particulars.

   Defendants have, indeed, annexed to
   their motion to dismiss an affidavit to the effect that written notice
   of the sale was given to the other co-owners on February 25, 1952,
   which, if true, might, in the absence of other circumstances, make
   plaintiffs’ offer to redeem on February 6 out of time. But whether the
   notice of the sale was given on February 25, as stated in the
   affidavit, or on September 6, as stated in the complaint, was a
   question of fact which could best be determined after trial on the
   merits or in a motion for summary judgment and not in a mere motion to
   dismiss, as this hypothetically admits the allegations of the
   complaint. Moreover, the affidavit mentioned refers only to the share
   of Sofia Hidalgo Soria and says nothing of the share of her sister
   Carmen Soria Abad, as to which there is nothing said therein to
   contradict plaintiffs’ allegation that notice of sale was given on
   September 6.

   It is, therefore, our view that the complaint should not have been dismissed as to the first cause of action.

2. The second cause of action is for moral damages alleged to have been
   suffered by plaintiffs on account of their arrest and incarceration by
   reason of a false and malicious complaint filed against them in the
   Justice of the Peace Court of Narvacan by Catalina V. Corrales, one of
   the herein defendants, charging them with the crime of malicious
   mischief. But there is no allegation that plaintiffs have been
   acquitted. Indeed, it would appear from a certified copy of docket
   entries referring to the case that the same is still pending trial.
   Obviously, plaintiffs’ second cause of action has not yet accrued. The
   complaint as to that cause was, therefore, properly dismissed as
   premature.

3. For a third cause of action, the
   complaint alleges that in January, 1950, defendants, being owners of a
   lot contiguous to the land here in question, constructed a building on
   said lot with balcony and windows less than three meters distant from
   said land and with roof that drains rain water into it in violation of
   Article 670 and 674, respectively, of the New Civil Code. Plaintiffs,
   therefore, pray that the said balcony and windows be ordered closed and
   the roofs constructed in such a way that rain water would not fall on
   plaintiffs’ land. Taking the view that, with the acquisition by
   defendants of a share in the land in question, the easement of light,
   view and drainage was extinguished “by merger in the same person of the
   ownership of dominant and servient estates” pursuant to Article 631 of
   the New Civil Code, the lower court ruled out this cause of action.
   This view is patently erroneous. As defendants have not become sole
   owners of the servient estate, for they have acquired only a part
   interest therein, it cannot be said that in this case ownership of the
   dominant and servient estates has been merged in the same person for
   the purposes of the article cited. Thus, commenting on the
   corresponding article of the Spanish Civil Code (Art. 546), Manresa
   observes that under that article the easement is not extinguished by
   the acquisition of a share in property held in common.

   He says:

“(c) La adquisicion de una parte proindiviso del
dominio. En este caso no se adquiere la propiedad plena indispensable
para la extincion de la servidumbre, sino una fraction, porque el
dominio se halla representado por todos los comuneros y no por uno
solo. Ademas, no se reune propiamente el dominion en una sola persona,
segun exige el numero 1.^o del articulo 546. Asi en el predio
o en la servidumbre que se posee proindiviso, existe un derecho
abstracto, indeterminado, mientras que respecto a la servidumbre o al
predio que se posee por entero existe un derecho determinado y
especial. Asi tambien, el duefio del predio dominante, participe
proindiviso del sirviente, puede oponerse a todo acto acordado por los
comuneros que tienda a perjudicar la servidumbre, y el dueño del predio
sirviente, participe proindiviso del dominante, no puede, por su sola
voluntad, perjudicar ni menos extinguir el derecho que, no a el, sino a
todos los comuneros corresponde.” (IV Manresa, 6th ed., pp. 706-707.)

And as to the matter of drainage, Article 674 of the New Civil Code
specifically provides “that the owner of a building shall be obliged to
construct its roof or covering in such a manner that the rain water
shall fall on his own land or on a street or public place, and not on
the land of his neighbor, even though the adjacent land may belong to
two or more persons, one of whom is the owner of the roof” (Italics
supplied.)

In view of the foregoing, the order of dismissal is affirmed as to
the second cause of action, but revoked with respect to the first and
third causes of action, as to which the case is ordered remanded to the
court below for further proceedings. Costs against the appellees.

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