ADRIANA DIONISIO, ET AL., PETITIONERS, VS. JUDGE RODOLFO ORTIZ OF THE REGIONAL TRIAL COURT OF QUEZON CITY, BRANCH 89 AND PABLO TAN GONZAGA, ET AL., RESPONDENTS.

The controversy in the instant case arose from the private
respondents’ act of opening a new gate along Howmart Road claiming an easement
of right of way in their favor.

The facts are as follows:

The petitioners are co-owners of lots contiguous to each other
situated in the Sitio of Kangkong, District of Balintawak, Quezon City.

The private respondents are also co-owners of lots which are
adjacent to the lots owned by the petitioners. 
Lot 272-B has an area of 1,427 sq. m. which was later subdivided into two lots where Lot 272-A was assigned
to Chua Lee and Chua Bun Tong pursuant to a memorandum agreement executed by
and between them.  They are also owners
of another lot at the upper portion of Lot 272-B with an area of 914 sq. m.

By virtue of an agreement entered into between the owners of the
contiguous lots and the members of the Quezon City Industrial Estates
Association (QCIEA), a right of way was granted over Howmart Road which is a
private road traversing the contiguous lots owned by the petitioners, among
others, in favor of the QCIEA
members.  In return for its use, QCIEA
paid compensation to the petitioners for
this right of way.  The private
respondents are bona fide members of the QCIEA.

In order to have access to Howmart Road, there is a gate in private
respondents’ 914 sq. m. lot fronting Howmart Road and another gate in Lot
272-A.  As a result of the subdivision of
Lot 272, the private respondents opened a new gate in Lot 272-B also fronting
Howmart Road which is now the gate in question.

On October 5, 1989, under the instructions of Maxima Dionisio,
certain persons commenced the digging of four holes in a parallel line and
afterwards put up steel posts welded to a steel plate in front of the newly
constructed gate of private respondents amidst the latter’s protestations. The
petitioners claim that the surreptitiously constructed gate opened directly
into the house of Maxima Dionisio, exposing them to air and noise pollution
arising from the respondents’ delivery trucks and service vehicles.

On November 7, 1989, the private respondents instituted a civil action for damages
against the petitioners. The complaint sought the immediate issuance of a writ
of preliminary injunction ordering the petitioner to remove the barricade
erected by them in front of the iron gate.

On January 8, 1990, respondent Judge Ortiz issued an Order
granting the writ of preliminary mandatory injunction. The dispositive portion
of the order reads:

“ACCORDINGLY, plaintiffs’
prayer for the issuance of a writ of
preliminary mandatory injunction is GRANTED, and a writ of preliminary
mandatory injunction shall issue ordering the defendants to remove the
barricade erected by them in front of the iron gate of the plaintiffs at their
Lot 272-B, within twenty-four (24) hours from receipt of the writ, and in case
of their failure to do so, the plaintiffs are authorized to remove the said
barricade by themselves, the expenses for which is chargeable to the
defendants, upon plaintiffs’ putting up of a bond in the amount of P20,000.00,
approved by this Court, and conditioned as provided in the Rules, within five
(5) days from receipt of this order.” (Rollo, p. 34)

The petitioners   then filed
a petition for certiorari before the Court of Appeals assailing the
Order of Judge Ortiz.

Fifteen days later, the petitioners removed the barricade in
front of the gate of the private respondents after they failed to obtain a temporary restraining order (TRO) from
the Court of Appeals enjoining the lower court from implementing its order.

The Court of Appeals dismissed the petition on the ground that
the issue has already become moot and academic since the petitioners have
already complied with the Order of the lower court.

The petitioners’ motion for reconsideration was likewise denied.

Hence, this petition alleging that:

“THE HONORABLE COURT OF APPEALS ERRED
IN HOLDING THAT PETITIONERS’ COMPLIANCE WITH THE ORDER DATED 8 JANUARY 1990
GRANTING THE WRIT OF PRELIMINARY MANDATORY INJUNCTION RENDERS THE PETITION FOR CERTIORARI
MOOT AND ACADEMIC CONSIDERING THAT:

1.  THE HONORABLE COURT OF APPEALS CAN STILL GRANT
PRACTICAL RELIEF TO THE PARTIES BY RECALLING OR LIFTING THE WRIT OF PRELIMINARY
MANDATORY INJUNCTION.

2.  THE ISSUANCE OF THE WRIT OF PRELIMINARY
MANDATORY INJUNCTION SHOULD NOT PREEMPT THE RESOLUTION OF THE PETITION ON THE
ISSUE OF THE VALIDITY OF THE ORDER GRANTING THE WRIT.” (Rollo, pp. 17-18)

The real issue to be resolved in this case is whether or not the
private respondents have an easement of right of way over Howmart Road. 
Afterwhich it can be determined whether or not the private respondents
are entitled to the injunctive relief.

The private respondents’ claim that they have every right to use
Howmart Road as passageway to EDSA by reason of the fact that public
respondents are bonafide members of the QCIEA which has a standing oral
contract of easement of right of way with the petitioners.  The contract is still subsisting even after
its alleged expiration in December, 1988 as evidenced by the two (2) letters
signed by Maxima Dionisio and Atty. Telesforo Poblete, counsel for the Dionisio
Family addressed to the QCIEA requesting for an increase in the compensation
for said right of way.  In such a case, it is alleged that the petitioners did not have the
right to put the barricade in question in front of the private respondents’
gate and stop them from using said gate as passageway to Howmart Road.

There is no question that a right of way was granted in favor of
the private respondents over Howmart Road but the records disclose that such
right of way expired in December, 1988. 
The continued use of the easement enjoyed by QCIEA including the private
respondents is by the mere tolerance of the owners pending the renegotiation of
the terms and conditions of said right of ways. 
This is precisely shown by the two letters to the QCIEA requesting for
an increase in compensation for the use of Howmart Road.  Absent an agreement
of the parties as to the consideration, among others, no contract of easement
of right of way has been validly entered into by the petitioners and QCIEA (see
Robleza v. Court of Appeals, (74
SCRA 354 [1989]).  Thus, the private
respondents’ claim of an easement of right of way over Howmart Road has no
legal or factual basis.

Not having any right, the private respondents are not entitled to
the injunctive relief granted by the lower court.

We have held in several cases that in order to be entitled to an
injunctive writ, one must show an unquestionable right over the premises and
that such right has been violated.  (Rivera
v. IAC, 169 SCRA 307 [1989]; Viray v. CA, 191 SCRA 308 [1990]; Buayan Cattle
Co. Inc. v. Quintillan, 128 SCRA 276 [1984])

The party applying for
preliminary injunction must show that (a) the invasion of the right sought to
be protected is material and substantial; (b) the right of complainant is clear and unmistakable; and
(c) there is an urgent and paramount necessity for the writ to prevent
serious damage.  (Director of Forest
Administration v. Fernandez, 192 SCRA 121 [1990]; Phil. Virginia Tobacco
Administration v. Delos Angeles, 164 SCRA 543 [1988])

 In the case at bar, the
private respondents have not shown that there is an urgent and paramount
necessity for issuance of the writ.

The records show that
there are two (2) gates through which the private respondents may pass to have
direct access to EDSA:  (1) the northern
gate which opens directly to EDSA; and (2) the southern gate along Howmart
Road.  The records also disclose that the
petitioners and the other lot owners previously prohibited and prevented
members of QCIEA from opening new gates. 
The claim that they were forced to open a new gate by reason of the
subdivision of Lot 272 where a wall was constructed between these 2 lots is
untenable.  The private respondents can
not assert a right of way when by their own
or voluntary act, they themselves have caused the isolation of their
property from the access road.  Article 649 of Civil Code justifies
petitioners’ claim, to wit:

“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.  (564a)
(Underlining Supplied)

The construction of a wall between the 2 lots leaving only a
small passageway between them is an act imputable to the private respondents
which precludes them from asserting a right
of way.  The opening of the new gate
would definitely be very convenient to the private respondents but mere
convenience is not enough to serve as basis for the assertion of a right of
way.  (see Ramos, Sr. v. Gatchalian
Realty, Inc., 154 SCRA 703 [1987])

It was therefore inaccurate for the lower court to state that the
private respondents have shown a clear right to justify the issuance of the
writ of preliminary injunction when the facts and circumstances of the case do
not warrant it.  In such a case, certiorari will lie to
correct the abuse of discretion committed by the lower court.  (Maguan v. Court of Appeals, 146 SCRA 107 [1986]).  Such task was incumbent upon the Court of
Appeals when the petitioners filed their petition for certiorari before
it questioning the propriety of the Order of the lower court.  The respondent Court, however, dismissed the
petition on the ground that the issue was already moot and academic upon the
petitioners’ compliance with the Order of the respondent Judge.

The fact that the barricade constructed by the petitioners was
already removed upon the issuance of the questioned preliminary injunction does
not make the petition moot and academic as ruled by the Court of Appeals.  The granting of the writ and the subsequent
compliance should not preempt the determination of the issue brought before it.  The validity of the Order was precisely the
subject of the petition for certiorari. 
As aptly explained in the case of Anglo-Fil Trading Corporation v. Lazaro, 124 SCRA 494 [1983]:

x x x                          x x x                             x
x x

“The petitioners’ contention that the lifting of the
restraining order had rendered moot and academic the injunction case in the
trial court is likewise untenable.  A
restraining order is distinguished from an injunction in that it is intended as
a restraint on the defendant until the propriety of granting an injunction pendente
lite can be determined, and it goes no further than to preserve the status quo
until such determination.  Therefore, the
grant, denial, or lifting of a restraining order does not in anyway pre-empt
the court’s power to decide the issue in the main action which in the case at
bar, is the injunction suit.  In fact,
the records will show that the trial court proceeded with the main suit for
injunction after the lifting of the restraining orders.” (At p. 512)

The Court of Appeals has the power to recall or lift the writ of
preliminary mandatory injunction so issued if it finds that the party is not so
entitled.  However, in dismissing the
petition the court, in effect affirmed the lower court’s finding that the
private respondents were indeed entitled to the writ of preliminary
injunction.  But as we have earlier
found, the private respondents are not entitled to the injunctive relief
considering that they have no clear right over Howmart Road.

WHEREFORE, the petition is hereby GRANTED.  The questioned decision of the Court of
Appeals and the Order of the Regional Trial Court in Civil Case No. Q-89-3949
are SET ASIDE.  The writ of preliminary
injunction is hereby LIFTED.

SO ORDERED.

Bidin, Davide, Jr., and
Romero, JJ., concur.