ANTOLIN A. JARIOL, AND PAULO S. RODRIGUEZ, IN THEIR CAPACITIES AS JOINT EXECUTORS OF THE ESTATE OF HUMILIANO RODRIGUEZ, DECEASED, PETITIONERS, VS. HON. COURT OF APPEALS, DOMINO …

This is a Petition for
Review on Certiorari of the Decision of the Court of Appeals in its Case
No. CA-G.R. No. 47020-R.  The Petition
was initially denied but upon a second Motion for Reconsideration, the denial
was reconsidered and it was given due course.

We have found the facts
to be as follows:

The deceased Quirino Rodriguez left four children:  Humiliano, Timoteo, Jose, all surnamed Rodriguez, and Ines
Rodriguez de Pages.

On November
25, 1951, these
heirs (Jose, then deceased, being represented by Ines
Vda. de Rodriguez and his adult children Abdulia, Dolores and Juanita), entered into an
extrajudicial partition to divide a parcel of land covered by Transfer
Certificate of Title No. RT-345 (T-193) of the Registry of Deeds, Cebu City, in the name of the deceased.  The deed was signed by two witnesses and
notarized by Atty. Bernardo B. Solotan.  In this agreement, the property was divided
into Lots “A” to “G” inclusive.  Lot
“F” was ad­judicated to Humiliano, and Lot “G” to Timoteo.  Lot
“G” has no egress to the public roads.

On November
16, 1953, the
original and copies of the Deed of Partition were allegedly burned when the Quirino Rodriguez Building was razed by fire.

On May 22,
1956, Timoteo died and his son, Clemente
Rodriguez, was appointed executor of the estate, but was later replaced by Dominino Jagdon.  They
are two of the private respondents herein.

After Humiliano’s death
in 1961 or 1962, petitioners Antolin A. Jariol, his son-in-law, and Paulo S. Rodriguez, his son,
were appointed executors of his estate.

On June 27,
1960, the Deed of
Extra-Judicial Partition, with annotations and additions on the left and right
hand margins on page 4 and below the notarial
acknowledgment on page 5, was registered by Clemente
Rodriguez, son of Timoteo, in the Office of the Register
of Deeds of Cebu. 
These annotations are repro­duced in full hereunder:

“On the left hand margin of Page 4:

“That on the
approved subdivision plan with reference to the existing actual private
lane, Lots 802?B-2-B-2-C, 802-B-2-B-2-D, 802-B-2-B-2-B shall allot
for the private lane three (3) meters each on their respective sides and thence
six (6) meters for lot 802-B-2-B-2-F following the existing private lane, more
particularly described at the bottom of page 5 of this document.” (Italics
supplied)

“On the right hand margin of page 4:

“That the
contracting parties to the aforementioned extrajudicial partition of the estate
of the deceased, Quirino Rodriguez, hereby will and
bind themselves together with all the heirs, successors, and assigns to all the
provisions of the said document. .

Below the acknowledgment of page 5:

That the owners of
the following lots bind themselves for their mutual benefit a perpetual ease­ment
of right of way described as follows:

Lot No. 802-B-2-B-2-G – Three meters in width on the N. boundary.

Lot No. 802-B-2-B-2-D – Three meters in width on the S. W.
boundary.

Lot No. 802-B-2-B-2-C – Three meters in width on S. W. boundary.

Lot No. 802-B-2-B-2-B – Three meters in width on the S. W.
boundary.

Lot No. 802-B-2-B-2-F
– Six meters in width along the common boundary line of the said lots with the
said boundary line as the centerline.”^[1]

It is said that

“x x x

“Of the seven (7) heirs who signed at the left hand margins of
pages 1,2,3 and 5 and at the bottom of page 4, only five (5) initials are found
with the left hand margin insertion, with one ‘T.R. by C.L.R.’; on the right
hand margin insertion only four (4)
initials are found with one ‘T.R. by C.L.R.’; with the insertion of the bottom of page 5, only five (5) initials are found
with one ‘T.R. by C.L.R.’; and

“No signatures or initials of the two witnesses are found with
any of the insertions.”^[2]

To be noted from the partition agreement is the fact that four
heirs were to contribute for the easement of right-of-way three (3) meters
each, while Humiliano, to whom Lot
“F” appertained, was to give six meters.

Upon the contention that they had discovered the annotations only
in 1964, petitioners Antolin A. Jariol
and Paulo S. Rodriguez, as joint executors of Humliano’s
estate, together with Ines Rodriguez de Pages, filed
an action with the Court of First Instance of Cebu on
March 11, 1965 against respondents Dominino Jagdon as administrator of the estate of Timoteo Rodriguez, Clemente
Rodriguez, Dolores Rodriguez, and Ines Vda. de Rodriguez, seeking to declare the nullity of the annotations
and insertions for having been surreptitiously and mali­ciously added long
after the execution of the principal document, and the cancellation of the
easements of right of way noted as encumbrances on the Certificates of Title
issued for the subdivided lots, particularly on “Lot F”.  It was
alleged that the initials of Humiliano and Ines Rodriguez
de Pages affixed to the insertions were forged as found by a handwriting
expert; that not all the parties to the document had affixed their ini­tials to
the insertions; that had the annotations been made at the time of the execution
of the document, Timoteo, who was still alive, should
have signed the annotations and not his son Clemente.  The Complaint was amended three times to
include other heirs either as parties plaintiffs or parties defendants.

During the trial, petitioners presented the deposition of Ines Rodriguez de Pages, then 81 years old, to the effect
that the initials “I.R.P.” appearing in the insertions were not her own.

Defendants-respondents,
on the other hand, sustained the genuineness and due execution of the annotations
or additions and presented their own
handwriting expert.  They averred that
the agreement merely confirmed the existing right of way.

In its judgment rendered
on August 22, 1968,
the Trial Court concluded:

“It is the conclusion of this Court therefore, that the
initials of Ines Rodriguez de Pages and Humiliano Rodriguez were forged and that Clemente Rodriguez, in initialing the said insertions or
additions without any power of attorney from Timoteo
Rodriguez does not bind the latter. 
Hence, the alleged agreement creating the easement is of no force and
legal effect upon the heirs of Quirino Rodriguez.”^[3]

and declared the alterations or
annotations complained of illegal and unlawful and without any legal force and
effect; ordered the Register of Deeds of Cebu to
cancel the easement of right of way noted as encumbrances on the title; and
finding that Clemente Rodriguez was responsible for
the “falsification of the insertions” and the “forgery” of
the initials of Humiliano and Ines Rodriguez de Pages, required defendants therein to pay
actual, moral and exemplary damages as well as attor­ney’s fees for having
“abetted” the “wrongdoing” of Clemente.

After
defendants-respondents’ Motion for New
Trial on the ground that the
deposition of Ines R. de Pages should not have been
admitted in evidence, was denied, they appealed to the Court of Appeals.

On October 15, 1980, the
Court of Appeals^[4] reversed the judgment appealed from and
dismissed the Third Amended Complaint as well as all counterclaims principally
on the ground that the right-of-way involved, which was a pre-existing one,
even prior to the extra judicial partition, sprang not from any voluntary con­cession
but from law.

Petitioners came to this Court on a Petition for Review on Certiorari
asserting that respondent Appellate Court erred in skirting the issue on the
genuineness and/or binding effect of the forged alterations and insertions on
the Deed of Extrajudicial Partition, and in holding that a legal easement of
right-of-way automatically attaches to “Lot “F” adjudicated to Humiliano, as the servient
estate, which was not an issue framed by the parties on appeal.

Petitioners take issue with the findings of respondent Court,
which read in part:

“Appellees also presented the
deposition of Ines Rodriguez Pages, then aged 81, who
denied the genuineness of her initials to the questioned insertions.  On the other hand, appellants presented,
inter alia, Atty. Bernardo Solatan,
the lawyer who prepared and notarized the extrajudicial partition document; and
Mrs. Amparo R. Casafranca,
daughter of Humiliano Rodriguez and sister-in-law of appellee Jariol.  Atty. Solatan
testified that the partition document was made under the direction of Humiliano Rodriguez (tsn-Cavalida,
Jan. 15, 1968, p. 237); that he pre­pared the insertions at the instance of Humiliano Rodriguez (tsn-Cavalida,
Jan. 15, 1968, pp. 240-242); and that the initials attributed to Humiliano Rodriguez and Ines
Rodriguez de Pages were authentic.  Unrebutted was the testimony of Mrs. Casafranca
that her father Humiliano Rodriguez favored the
maintaining of a road right of way (tsn-Javier, May
9, 1968, p. 4), and that this easement existed long before the execution of the
extrajudicial partition (tsn-Javier, May 9, 1968, p.
6).  Appellee Jariol confirmed that he knows of only one easement, that
is, the one adjacent to his house (tsn-Iyog, May 23, 1968, p.35).  We can
only conclude that the easement encumbrance inserted in the extra-judicial
partition referred to the existing right-of-way to which Humiliano
Rodriguez was in favor of maintaining.”^[5]

The Appellate Court then
went on to state:

“It cannot be denied that easements of right-of-way, being
discontinuous, cannot be acquired by prescription.  However, a close perusal of the subdivision
plan of Lot 802-B-2-B-2 (Exh.
D) reveals that Lot 802-B-2-B-2-G with an area of 1422
square meters has no access to the public roads.  Corner no. 1 of this lot is almost 80 meters
from Juan Luna street and
about 73 meters from Colon Street,
the latter through Lot No. 802-B-2-B-2-F. 
Under the partition agreement, Lot 802-B-2-B-2-G
appertained to Timoteo Rodriguez and his heirs.  A legal easement of right-of-way can
therefore be established in favor of the heir to which this lot went.  Section 652 of the New Civil Code reads:  ‘Whenever a piece of land acquired by sale,
exchange or partition, is surrounded by other estates of the vendor,
exchanger, or co-owner, he shall be obliged to grant a right-of-way
without indemnity.’ Section 651 explains: 
‘The width of the easement of right-of-way shall be that which is
sufficient for the needs of the dominant estate, and may accordingly be changed
from time to time.’ From the foregoing discussions, it would be immaterial
to delve into whether the insertions in the extrajudicial partition are illegal and unauthorized.  The
right of the dominant estate to demand a right-of-way springs not from any
voluntary concession but from law.  Appellees must provide the owners of the dominant estate (Lot
802-B-2-B-2-G in this case) egress to the public road.  Had the partition been the other way around,
surely appellees would want a way out to the
street.  Justice and equity demand that
the status quo be maintained with regards to the easement of
right-of-way.”^[6]
(Italics ours)

Upon the foregoing
exposition, we find that there is no substantial justification for setting
aside the aforequoted findings of respondent
Court.  In the first place, it did not
entirely disregard the matter of the questioned alterations and insertions.  It summarized the conflicting evidence thereon,
as quoted hereinabove, observing that “unrebutted
was the testimony of Mrs. Casafranca that her father Humiliano Rodriguez
favored the maintaining of a right of way (tsn., –
Javier, May 9, 1968,
p. 4).” Mrs. Amparo R. Casafranca,
who testified of her own knowledge, is the sister-in-law and sister,
respectively, of petitioners.  If Humiliano himself
favored the right-of-way, petitioners, as his successors-in-interest, should be
held bound by it.  Respondent Court added
that the Notary Public, Atty. Bernardo Solotan, who
authenticated the document, also declared that the initials of Humiliano and Ines R. de Pages were authentic, and that
the insertions were made at the instance of Humiliano.  We view those declarations as amounting to
findings of fact made by an Appellate Court, which we consider as binding on
us.

And as far as Timoteo is concerned, although the Trial Court found that
he did not initial the insertions, supra, there can be
no denying that he would be the last to object to the easement established for
it also inured to the benefit of “Lot G”, which was allocated to him.

Secondly, the substantial
question is whether or not “Lot G” is entitled to the easement of
right of way.  In point of fact, a road
right of way providing access to the public road from “Lot G” existed
long before the execution of the extrajudicial partition even during the
lifetime of Quirino Rodriguez.  The Deed of Partition merely sought to
legalize and give stability to the access road already existing.  That was confirmed by the testimony of Mrs. Casafranca.  That is
also the position taken by the other heirs who have been included as
defendants-respondents.  As a matter of
law, considering that “Lot G” has no access to the public road, the
easement is explicitly provided for in Article 652 of the Civil Code^[7], its width being determined by the needs of
the servient estate pursuant to Article 651^[8] of the same law.

Thirdly, the justice of
the situation rather than the technicalities of the controversy should govern
herein.  The questioned insertions and
annotations refer to an “existing actual private lane”.  The question of legality of those insertions
is linked with the need for its continued existence and the laws on easement
cannot but have a definite bearing.  The
annotations did not “create” a right-of-way, contrary to the opinion
of the Trial Court.  They merely
confirmed an existing one.  Respondent
Appellate Tribunal did not “by judicial fiat” establish a “legal
easement of right of way” on Lot
“F”.  It found that it had been
pre-existing and that under the circumstances, the laws on easement were
applicable.  A chapel exists in the
interior constructed by the deceased Quirino Rodriguez,
who was also responsible for giving chapel-goers access thereto from the
street.^[9] The right-of-way exists for the mutual
benefit of most of the heirs of Quirino Rodriguez.  As aptly stated by
respondent Court “justice and equity demand that the status quo
be maintained with regards to the
easement of right of way.”

With the conclusions
arrived at, the Resolution, dated June 30, 1982, giving due course to this Peti­tion must be
set aside and this Petition denied.

WHEREFORE, let
this Petition for Review be, as it is, hereby denied for lack of merit.

Costs against
petitioners.

SO ORDERED.

Teehankee, (Chairman), Plana, Vasquez, Relova, and Gutierrez, Jr., JJ., concur.

^[1]
Pp. 265-266, Rollo.

^[2]
Findings of Mr. Perfecto Espina, QDE, CID, CPD,
petitioners’ handwriting expert.

^[3]
p. 30, Rollo.

^[4]
Decision penned by Mr. Justice Guillermo P. Villasor,
and concurred in by Messrs. Justices Venicio Escolin and Onofre A. Villaluz.

^[5]
Pp. 89-90, Rollo.

^[6]
p. 90, Rollo.

^[7]
“ART. 652.  Whenever a piece of land
acquired by sale, exchange or partition, is surrounded by other estates of the
vendor, exchanger, or co-owner, he shall be obliged to grant a right of way
without indemnity.

“x x x x x“

^[8]
“ART. 651.  The width of the
easement of right of way shall be that which is sufficient for the needs of the
dominant estate, and may accordingly be changed from time to time.”

^[9]
Memorandum for Ines Vda. de
Rodriguez, et als., p. 296, Rollo.