REMIGIO O. RAMOS, SR., PETITIONER, VS. GATCHALIAN REALTY, INC., EDUARDO ASPREC, ENELDA ASPREC, ERNESTO ASPREC, AND COURT OF APPEALS, RESPONDENTS.

In this petition for review on certiorari, the petitioner
assails the decision of the Court of Appeals dated August 29, 1986 which affirmed the November 14, 1984 order of the
Regional Trial Court, Branch CXI at Pasay City
dismissing the petitioner’s civil action for a right of way with prayer for
preliminary injunction.

Petitioner Ramos is the owner of a house and lot containing an
area of 901 square meters covered by Transfer Certificate of Title No. 14927
situated at Barrio San Dionisio, Paranaque, Metro
Manila.  The lot was acquired by the
petitioner from Sobrina Rodriguez Lombos
Subdivision.  In the subdivision survey
plan of Lot 4133-G, (LRC) PSD-172544, the lot is more particularly described as Lot
4133-G-11 (Exhibits “1” and “1-A”).  Two road lots abut petitioner’s property
namely lot 4133-G-12 with an area of 2,160 square meters clearly appearing as a
proposed road in the Lombos subdivision plan and Lot
4135 of the Paranaque Cadastre now known as Palanyag Road but more commonly referred to as Gatchalian Avenue.

Respondents Asprec own Lot
4135.  Gatchalian Avenue is alongside
Lot 4135. 
Respondent Gatchalian Realty was granted the
road right of way and drainage along Lot 4135 to service
the Gatchalian and Asprec
subdivisions, by the respondent Asprecs.

The records of this case disclose that on April 30, 1981, a complaint for an easement of a
right of way with preliminary mandatory injunction was filed by Ramos against
the private respondents.  Among the
allegations in the complaint are:

“xxx that he (referring to the petitioner) constructed his
house at 27 Gatchalian Avenue (also known as Palanyag Road), Paranaque, and
has since resided therein with his family from 1977 up to the present; that
during construction of the house, Gatchalian Realty,
Inc. built a 7-8 feet high concrete wall right infront
of appellant’s premises, blocking his entrance/exit to Gatchalian
Road, the nearest, most convenient and adequate entrance/exit to the public
road or highway, formerly Sucat Road but now known as
Dr. A. Santos Avenue, Paranaque; that this house and
lot is only about 100 meters from Sucat Road passing
thru Gatchalian Avenue; that prior to this, appellant
and his counsel addressed separate request/demand letters (Exh.
A and Annex B) to defendant company to allow him to exercise a right of way on
the subject premises; that in September 1977, a meeting/conference was held
between appellant and his counsel on one hand and Mr. Roberto Gatchalian and counsel on the other, during which defendant
Corporation manifested its conformity to grant appellant the requested right of
way upon payment of proper indemnity, with the request that appellant inform
defendants Asprec of their aforesaid agreement; that
consequently, appellant wrote Mr. Cleto Asprec on September 16, 1977 (Exh.
D); that with the construction of the 7-8 feet concrete wall appellant and his
family have been constrained to pass through the back portion of their lot
bounded by other lots belonging to different owners, which is grassy and cogonal as temporary ingress/egress with great
inconvenience and hardship, and this becomes all the more pronounced during the
rainy season due to flood and mud (Exhs. B-1, B-1-A,
B-2, B-2-A, B-3, B-3-A, B-3-B and B-4); and, lastly, that the aforesaid
concrete wall is dangerously leaning towards appellant’s premises posing great
danger or hazard.” (Court of Appeals Decision, p. 3, Rollo,
p. 39)

On May 20, 1981, the respondent corporation filed a motion to
dismiss on grounds of lack of cause of action and bar by prior judgment alleging
that the complaint was merely a reproduction of that filed on October 26, 1972
in Civil Case No. 5930-P which was dismissed on October 30, 1980 for failure to
prosecute within a reasonable length of time. 
Respondents Asprec later joined the respondent
company in its motion to dismiss and adopted the grounds and arguments stated
therein.

On November 20, 1981,
after the petitioner had filed his opposition to the above motions, the lower
court issued its order denying the motion to dismiss on the ground that the
order dismissing the earlier case was not an adjudication
on the merits.

On November 26, 1981,
the petitioner filed an urgent ex-parte motion for
the issuance of a preliminary mandatory injunction as well as a preliminary
prohibitory injunction.  On the same day,
the lower court set the motion for hearing on December 1, 1981, later reset to December 10, 1981, and ordered that:

“In the meantime, pending determination of the application on
the merits and in order that the reliefs sought
therein may not be rendered moot and academic, the defendants and all persons
acting upon their orders are hereby temporarily enjoined from building,
constructing and/or erecting a wall, fence or any enclosure adjoining or
abutting plaintiff’s premises and/or from restraining, preventing or
prohibiting the plaintiff, his family or persons residing in his premises as
well as any person/s who may have any dealing or business with them from using,
passing and/or traversing the said Gatchalian Avenue
in going to or returning from the plaintiff’s premises and in going to or
returning from Sucat Road via Gatchalian
Avenue, until further orders from this Court. 
(Order dated November 26, 1981, Records, p. 66).

On December 1, 1981,
Gatchalian Realty filed its answer and averred, among
others, that:

xxx                            xxx                               xxx

“Defendant Corporation has never entered into a verbal
agreement with plaintiff to grant the latter a road right of way;

xxx                            xxx                               xxx

“The so-called Gatchalian Avenue or Palanyag Road is not a public road but a private street
established and constructed by the defendant Corporation intended for the sole
and exclusive use of its residents and lot buyers of its subdivisions, as well
as of the subdivisions owned and operated by the various naked owners of the
different portions constituting the entire length and breadth of said street;

“If plaintiff’s property referred to in the complaint is Lot
No. 4133-G-11, (LRC) Psd-229001 (sic), then a grant of a right of way to
plaintiff is not a legal necessity, because such lot has an existing road right
of way, more particularly Lot 4133-G-12, towards Dr. Arcadio
Santos Avenue (Sukat Road);

xxx                            xxx                               xxx

“The opening of Gatchalian Avenue to
the property of plaintiff will unduly cause great prejudice to defendant
Corporation as it can no longer effectively regulate the use of the said
private road; xxx

“Assuming, though not admitting, that plaintiff may be granted
a right of way, still the reasonable compensation for such grant would be some
P800,000.00, as such portion of Gatchalian
Avenue consists of some 2,000 square meters of prime and valuable property
which could readily command a market value of P400.00 per square meter;
moreover, plaintiff still has to shoulder his proportionate share of the
expenses and upkeep of such street and the real estate taxes imposed
thereon.” (Answer of Gatchalian
Realty, Inc., Records, pp. 81-82).

On December 2, 1981,
respondents Asprec filed their answer which basically
contained the same averments as that of the realty company.

At the hearing of the petitioner’s application for issuance of a
writ of preliminary injunction to compel the private respondents to remove the
wall constructed right in front of the petitioner’s premises barring him access
to Gatchalian Avenue, both parties presented oral and
documentary evidence to support their respective positions.  After the hearing, the lower court issued the
following order:

“Plaintiff is given fifteen (15) days to file a memorandum and
the defendant is given another fifteen days from receipt thereof to file a
reply, after which the case shall be deemed submitted for resolution.  So ordered.”
(TSN, December 10, 1981, p. 57)

After compliance by both parties with the above order, the lower
court, on July 9, 1982,
rendered a decision the dispositive part of which
reads:

“WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendants ordering the latter to grant the former a
right of way through Palanyag Road to and from Don Arcadio Santos Avenue and to and from his residence, upon
payment by the plaintiff to the defendants Asprecs
the sum of P5,000 as indemnity therefor and under the
following terms and conditions to wit: 
(1) the easement created shall be only in favor of the plaintiff,
members of his family and person or persons dealing with them; and (2) the
opening to be created through the concrete wall separating plaintiff’s
residence and Palanyag Road shall only be three (3)
meters wide and shall be provided by an iron gate by the plaintiff all at the
expense of the plaintiff.  Without pronouncement as to costs and damages.” (Rollo, p. 30)

Thereafter, the respondent company filed a motion to set aside and/or reconsider the lower
court’s decision for being premature since only the application for the writ of
injunction was heard and submitted for resolution and not the entire case.  Respondents Asprec,
likewise, filed a motion for reconsideration mainly on the ground that the
lower court’s grant of a right of way through Gatchalian
Avenue in petitioner’s favor would be in derogation of the “Contract of
Easement of Road Right-of-Way and of Drainage” executed between them and Gatchalian Realty.

In his opposition to both motions, the petitioner argued that on
the basis of the transcript of stenographic notes taken on December 10, 1981,
it was clear that both parties submitted the entire case for resolution
inasmuch as the pieces of evidence for the injunction and for the main case were the same and there was
nothing left to be presented.  Thus, in
effect, the petitioner contended that the lower court’s decision dated July 9, 1982 was an
adjudication on the merits.

On July 8, 1983,
the lower court under a new judge by virtue of the reorganization of the
judiciary, issued an order setting aside and vacating its previous decision
dated July 9, 1982 on the
ground that the same was “rendered prematurely as the defendants had not
presented their evidence on the main case.”

After the petitioner had rested his case, the respondent company
filed a motion to dismiss based on the insufficiency of the evidence adduced by
the petitioner.  An opposition to said
motion, was, thereafter, filed by the petitioner.

On November 14, 1984,
the lower court, acting on the respondent company’s motion to dismiss, issued
an order with the following tenor:

“WHEREFORE, finding the motion to dismiss of defendant
corporation Gatchalian Realty, Inc. to be impressed
with merit, the same is hereby granted. 
For insufficiency of evidence, plaintiff’s complaint is hereby
dismissed, without pronouncement as to costs.” (Rollo,
p. 34)

The Court of Appeals on August
29, 1986, found that the petitioner failed to establish the
existence of the preconditions in order that he could legally be entitled to an
easement of a right of way.  It affirmed
the lower court’s order dated November
14, 1984 in all respects, with costs against the petitioner.

Hence, this petition which presents the following assignment of
errors:

I

PUBLIC RESPONDENT ERRED IN AFFIRMING IN TOTO THE ORDER OF DISMISSAL OF THE TRIAL COURT IN ALL RESPECTS WITH
COSTS AGAINST THE PETITIONER;

II

PUBLIC RESPONDENT ERRED IN ITS DECISION TO
THE EFFECT THAT PETITIONER HAS NOT SUFFICIENTLY MET THE REQUIREMENTS OF THE LAW
AND IN FAILING TO PROVE HIS RIGHT OF WAY THROUGH GATCHALIAN AVENUE OR PALANYAG
ROAD AGAINST THE RESPONDENTS HEREIN;

III

PUBLIC RESPONDENT ERRED IN FAILING TO SET
ASIDE THE ORDER OF THE TRIAL COURT, AND NOT ADOPTING THE DECISION OF THE TRIAL
COURT DATED JULY 9, 1982 GRANTING TO PETITIONER
A RIGHT OF WAY IN THE SUBJECT PREMISES. 
(Rollo, pp. 14-15)

These assigned errors center on the issue of
whether or not the petitioner has successfully shown that all the requisites
necessary for the grant of an easement of a right of way in his favor are present.

An easement or servitude is an encumbrance imposed upon an
immovable for the benefit of another immovable belonging to a different owner
as defined in Article 613 of the
Civil Code.  It is established either by
law, in which case it is called legal, or by the will of the parties, in which
event it is a voluntary easement.  (See
Article 619, Civil Code of the Philippines;
City of Manila v. Entote, 57 SCRA 497, 503).

Since there is no agreement between the contending parties in
this case granting a right of way by one in favor of the other, the
establishment of a voluntary easement between the petitioner and the respondent
company and/or the other private respondents is ruled out.  What is left to examine is whether or not the
petitioner is entitled to a legal or compulsory easement of a right of way.

In the case of Bacolod-Murcia Milling Company, Inc. v. Capitol
Subdivision, Inc., et al.  (17 SCRA 731, 735-6), we
held that:

“xxx the Central had to rely strictly
on its being entitled to a compulsory servitude of right of way, under the
Civil Code, and it could not claim any such servitude without first
establishing the preconditions for its grant fixed by Articles 649 and 650 of
the Civil Code of the
Philippines:

(1)  That it is surrounded by other immovables and has no adequate outlet to a public highway
(Art. 649, par. 1);

(2)  After payment of proper
indemnity (Art. 649, p. 1, end);

(3)  That the isolation was
not due to the Central’s own acts (Art. 649, last par.); and

(4)  That the right of way claimed is ‘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.’ (Art. 650).

“By express provision of law, therefore, a compulsory right of way can not be
obtained unless the four requisites enumerated are first shown to exist, and
the burden of proof to show their existence was on the Central.” (See also
Angela Estate, Inc. v. Court of First Instance of Negros
Occidental, 24 SCRA 500,510)

On the first requisite, the petitioner contends that since the
respondent company constructed the concrete wall blocking his ingress and
egress via the Gatchalian Avenue, the “nearest,
most convenient and adequate road” to and from a public highway, he has
been constrained to use as his “temporary” way the adjoining lots
belonging to different persons.  Said way
is allegedly “bumpy and impassable especially during rainy seasons because
of flood waters, mud and tall ‘talahib‘ grasses
thereon.” Moreover, according to the petitioner, the road right of way
which the private respondents referred to as the petitioner’s alternative way
to Sucat Road is not an existing road but has
remained a proposed road as indicated in the subdivision plan of the Sobrina Rodriguez Lombos Subdivision.

The petitioner’s position is not impressed with merit.  We find no reason to disturb the appellate
court’s finding of fact that the petitioner failed to prove the non-existence
of an adequate outlet to the Sucat
Road except through the Gatchalian Avenue.  As borne out by the records of the case,
there is a road right of way provided by the Sobrina
Rodriguez Lombos Subdivision indicated as Lot
4133-G-12 in its subdivision plan for the buyers of its lots.  The fact that said lot is still undeveloped
and causes inconvenience to the petitioner when he uses it to reach the public
highway does not bring him within the ambit of the legal requisite.  We agree with the appellate court’s
observation that the petitioner should have, first and foremost, demanded from
the Sobrina Rodriquez Lombos
Subdivision the improvement and maintenance of Lot
4133-G-12 as his road right of way because it was from said subdivision that he
acquired his lot and not either from the Gatchalian
Realty or the respondents Asprec.  To allow the petitioner access to Sucat Road through Gatchalian
Avenue inspite of a road right of way provided by the
petitioner’s subdivision for its buyers simply because Gatchalian
Avenue allows petitioner a much greater ease in going to and coming from the
main thoroughfare is to completely ignore what jurisprudence has consistently
maintained through the years regarding an easement of a right of way, that
“mere convenience for the dominant estate is not enough to serve as its
basis.  To justify the imposition of this
servitude, there must be a real, not a fictitious or artificial, necessity for it.” (See Tolentino,
Civil Code of the
Philippines, Vol. II, 2nd ed., 1972, p. 371)

Considering that the petitioner has failed to prove the existence
of the first requisite as aforestated, we find it
unnecessary to discuss the rest of the preconditions for a legal or compulsory
right of way.

Once again, we apply the rule that findings of facts of the Court
of Appeals are binding on the Supreme Court and will not be overturned when
supported by the evidence on record save in the known exceptions such as gross misappreciation of the evidence or misapprehension of
facts.  (See Community Savings and Loan
Association, Inc. v. Court of Appeals, et al., G.R. No. 75786, promulgated on
August 31, 1987; Regalario v. Northwest Finance
Corporation, 117 SCRA 45; Agton v. Court of Appeals,
113 SCRA 322).

WHEREFORE, in view of the foregoing, the petition is
hereby DISMISSED for lack of merit.  The questioned
decision of the Court of Appeals is AFFIRMED.

SO ORDERED.

Fernan, (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.