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SOLID MANILA CORPORATION,petitioner,vs.BIO HONG TRADING CO.,INC. and COURT OF APPEALS,respondents.

SYLLABUS

1. CIVIL LAW; PROPERTY; OWNERSHIP AND ITS MODIFICATIONS; EASEMENTS

OR SERVITUDES; NATURE, CONSTRUED.

Servitudes are merely accessories to thetenements of which they form part. Although they are possessed of a separate juridical

existence, as mere accessories, they can not, however, be alienated from the tenement, ormortgaged separately.

2. ID.; ID.; ID.; A LIMITATION ON THE RIGHT OF THE OWNER TO USE. Aneasement operates as a limitation on the title of the owner of the servient estate, specifically,

his right to use (jus utendi).

3. ID.; ID.; ID.; MODES OF EXTINGUISHMENT; MERGER, DEFINED. A merger

exists when ownership of the dominant and servient estates is consolidated in the same person.Merger then, as can be seen, requires full ownership of both estates.

4. ID.; ID.; ID.; PERSONAL SERVITUDE; CONSTRUED. A personal servitude, is one

constituted not in favor of a particular tenement (a real servitude) but rather, for the benefit ofthe general public. In a personal servitude, there is therefore no "owner of a dominanttenement" to speak of, and the easement pertains to persons without a dominant estate, in this

case, the public at large.

5. REMEDIAL LAW; ACTIONS; SUMMARY JUDGMENT; WHEN PROPER.

Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuineissue as to the existence of a material fact, and the facts appear undisputed based on the

pleadings, depositions, admissions, and affidavits of record.

6. ID.; ID.; ID.; PURPOSE. Summary judgments are meant to rid a proceeding of the ritual

of a trial where, from existing records, the facts have been established, and trial would befutile.

7. ID.; ID.; LAW OF THE CASE; CONSTRUED.

"Law of the case" has been defined asthe opinion delivered on a former appeal. More specifically, it means that whatever is once

irrevocably established as the controlling legal rule of decision between the same parties in the

same case continues to be the law of the case, whether correct on general principles or not, so

long as the facts on which such decision was predicated continue to be the facts of the casebefore the court. (21 C.J.S. 330)

8. ID.; ID.; FORUM SHOPPING. There is forum-shopping whenever, as a result of an

adverse opinion in one forum, a party seeks a favorable opinion (other than by appeal orcertiorari) in another. The principle applies not only with respect to suits filed in the courts but

also in connection with litigations commenced in the courts while an administrativeproceeding is pending.

D E C I S I O N SARMIENTO,Jp:This is an appeal filed by way of a petition for review on certiorari under Rule 45 of the Rules

of Court.

The petitioner raises two questions: (1) whether or not the Court of Appeals 1 erred in

reversing the trial court which had rendered summary judgment; and (2) whether or not iterred in holding that an easement had been extinguished by merger.

We rule for the petitioner on both counts.

It appears that the petitioner is the owner of a parcel of land located in Ermita, Manila,covered by Transfer Certificate of Title No. 157750 of the Register of Deeds of Manila. The

same lies in the vicinity of another parcel, registered in the name of the private

respondent corporation under Transfer Certificate of Tit le No. 128784.

The private respondent's title came from a prior owner, and in their deed of sale, the parties

thereto reserved as an easement of way:

. . . a portion thereof measuring NINE HUNDRED FOURTEEN

SQUARE METERS, more or less, had been converted into a private

alley for the benefit of neighboring estates, this being duly annotated atthe back of the covering Transfer Certificate of Title per regulations of

the Office of the City Engineer of Manila and that the three meterwide

portion of said parcel along the Pasig River, with an area of ONEHUNDRED SEVENTY NINE (179) SQUARE METERS, more or less,

had actually been expropriated by the City Government, and developed

pursuant to the beautification drive of the Metro Manila Governor. (p. 3,

Record).2

As a consequence, an annotation was entered in the private respondent's title, as follows:

Entry No. 7712/T-5000 CONSTRUCTION OF PRIVATE ALLEY

It is hereby made of record that a construction of private alley has

been undertaken on the lot covered by this title from Concepcion Street

to the interior of the aforesaid property with the plan and specificationduly approved by the City Engineer subject to the following conditions

to wit: (1) That the private alley shall be at least three (3) meters in

width; (2) That the alley shall not be closed so long as there's a building

exists thereon (sic); (3) That the alley shall be open to the sky; (4) That

the owner of the lot on which this private alley has been constituted

shall construct the said alley and provide same with concrete canals as

per specification of the City Engineer; (5) That the maintenance and

upkeep of the alley shall be at the expense of the registered owner; (6)That the alley shall remain open at all times, and no obstructions

whatsoever shall be placed thereon; (7) That the owner of the lot onwhich the alley has been constructed shall allow the public to use the

same, and allow the City to lay pipes for sewer and drainage purposes,

and shall not act (sic) for any indemnity for the use thereof; and (8) Thathe shall impose upon the vendee or new owner of the property the

conditions abovementioned; other conditions set forth in Doc. No. 4236,

Page No. 11, Book No. 84 of Nicasio P. Misa, Not. Pub. of Manila.3

The petitioner claims that ever since, it had (as well as other residents of neighboring estates)

made use of the above private alley and maintained and contributed to its upkeep, until

sometime in 1983, when, and over its protests, the private respondent constructed steel gatesthat precluded unhampered use.

http://www.cdasiaonline.com/jurisprudences/18193?hits%5B%5D%5Bid%5D=18193&hits%5B%5D%5Btype%5D=Jurisprudence&path=%2Fjurisprudences%2Fsearch&q%5Bcitation_finder%5D=&q%5Bfull_text%5D=&q%5Bissue_no%5D=&q%5Bponente%5D=&q%5Bsyllabus%5D=&q%5Btitle%5D=solid+manila+corporation+vs+bio+hong&q%5Butf8%5D=%E2%9C%93&q%5Byear_end%5D=&q%5Byear_start%5D=#footnote2_0http://www.cdasiaonline.com/jurisprudences/18193?hits%5B%5D%5Bid%5D=18193&hits%5B%5D%5Btype%5D=Jurisprudence&path=%2Fjurisprudences%2Fsearch&q%5Bcitation_finder%5D=&q%5Bfull_text%5D=&q%5Bissue_no%5D=&q%5Bponente%5D=&q%5Bsyllabus%5D=&q%5Btitle%5D=solid+manila+corporation+vs+bio+hong&q%5Butf8%5D=%E2%9C%93&q%5Byear_end%5D=&q%5Byear_start%5D=#footnote2_0http://www.cdasiaonline.com/jurisprudences/18193?hits%5B%5D%5Bid%5D=18193&hits%5B%5D%5Btype%5D=Jurisprudence&path=%2Fjurisprudences%2Fsearch&q%5Bcitation_finder%5D=&q%5Bfull_text%5D=&q%5Bissue_no%5D=&q%5Bponente%5D=&q%5Bsyllabus%5D=&q%5Btitle%5D=solid+manila+corporation+vs+bio+hong&q%5Butf8%5D=%E2%9C%93&q%5Byear_end%5D=&q%5Byear_start%5D=#footnote2_0http://www.cdasiaonline.com/jurisprudences/18193?hits%5B%5D%5Bid%5D=18193&hits%5B%5D%5Btype%5D=Jurisprudence&path=%2Fjurisprudences%2Fsearch&q%5Bcitation_finder%5D=&q%5Bfull_text%5D=&q%5Bissue_no%5D=&q%5Bponente%5D=&q%5Bsyllabus%5D=&q%5Btitle%5D=solid+manila+corporation+vs+bio+hong&q%5Butf8%5D=%E2%9C%93&q%5Byear_end%5D=&q%5Byear_start%5D=#footnote3_0http://www.cdasiaonline.com/jurisprudences/18193?hits%5B%5D%5Bid%5D=18193&hits%5B%5D%5Btype%5D=Jurisprudence&path=%2Fjurisprudences%2Fsearch&q%5Bcitation_finder%5D=&q%5Bfull_text%5D=&q%5Bissue_no%5D=&q%5Bponente%5D=&q%5Bsyllabus%5D=&q%5Btitle%5D=solid+manila+corporation+vs+bio+hong&q%5Butf8%5D=%E2%9C%93&q%5Byear_end%5D=&q%5Byear_start%5D=#footnote3_0http://www.cdasiaonline.com/jurisprudences/18193?hits%5B%5D%5Bid%5D=18193&hits%5B%5D%5Btype%5D=Jurisprudence&path=%2Fjurisprudences%2Fsearch&q%5Bcitation_finder%5D=&q%5Bfull_text%5D=&q%5Bissue_no%5D=&q%5Bponente%5D=&q%5Bsyllabus%5D=&q%5Btitle%5D=solid+manila+corporation+vs+bio+hong&q%5Butf8%5D=%E2%9C%93&q%5Byear_end%5D=&q%5Byear_start%5D=#footnote3_0http://www.cdasiaonline.com/jurisprudences/18193?hits%5B%5D%5Bid%5D=18193&hits%5B%5D%5Btype%5D=Jurisprudence&path=%2Fjurisprudences%2Fsearch&q%5Bcitation_finder%5D=&q%5Bfull_text%5D=&q%5Bissue_no%5D=&q%5Bponente%5D=&q%5Bsyllabus%5D=&q%5Btitle%5D=solid+manila+corporation+vs+bio+hong&q%5Butf8%5D=%E2%9C%93&q%5Byear_end%5D=&q%5Byear_start%5D=#footnote3_0http://www.cdasiaonline.com/jurisprudences/18193?hits%5B%5D%5Bid%5D=18193&hits%5B%5D%5Btype%5D=Jurisprudence&path=%2Fjurisprudences%2Fsearch&q%5Bcitation_finder%5D=&q%5Bfull_text%5D=&q%5Bissue_no%5D=&q%5Bponente%5D=&q%5Bsyllabus%5D=&q%5Btitle%5D=solid+manila+corporation+vs+bio+hong&q%5Butf8%5D=%E2%9C%93&q%5Byear_end%5D=&q%5Byear_start%5D=#footnote2_0

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On December 6, 1984, the petitioner commenced suit for injunction against the privaterespondent, to have the gates removed and to allow full access to the easement.prLL

The court a quoshortly issued ex partean order directing the private respondent to open the

gates. Subsequently, the latter moved to have the order lifted, on the grounds that: (1) the

easement referred to has been extinguished by merger in the same person of the dominant and

servient estates upon the purchase of the property from its former owner; (2) the petitioner has

another adequate outlet; (3) the petitioner has not paid any indemnity therefor; and (4) the

petitioner has not shown that the right-of-way lies at the point least prejudicial to the servientestate.

The private respondent's opposition notwithstanding, the trial court issued a "temporary writ of

preliminary injunction to continue up to the final termination of the case upon its merits upon

the posting of a P5,000.00 bond by the plaintiff"4(the petitioner herein).

Thereafter, the respondent corporation answered and reiterated its above defenses.

On April 15, 1986, the petitioner moved for summary judgment and the court a quoruled on

the same as follows:

In view of the foregoing, this Court finds it unnecessary to try this case

on the merit (sic) and hereby resolve (sic) to grant the plaintiff's motion

for summary judgment. (pp. 15-107, Record).5

On January 19, 1987, the trial court rendered judgment against the private respondent, the

dispositive portion of which states:

WHEREFORE, judgment is hereby rendered making permanent the

temporary mandatory injunction, that had been issued against the

defendant, and for the defendant to pay the plaintiff the costs of thissuit.

The defendant's counterclaim against the plaintiff is hereby dismissed,for lack of merit. (Summary Judgment, p. 6).6

The private respondent appealed to the respondent Court of Appeals.

Meanwhile, the private respondent itself went to the Regional Trial Court on a petition for the

cancellation of the annotation in question. The court granted cancellation, for which the

petitioner instituted CA-G.R. SP No. 13421 of the respondent Court of Appeals which orderedthe restoration of the annotation "without prejudice [to] the final outcome of" 7 the privaterespondent's own appeal (subject of this petition).

In reversing the trial court which had, as earlier mentioned, rendered summary judgment, the

respondent Court of Appeals held that the summary judgment was improper and that the lower

court erroneously ignored the defense set up by the private respondent that the easement inquestion had been extinguished. According to the Appellate Court, an easement is a mere

limitation on ownership and that it does not impair the private respondent's title, and that since

the private respondent had acquired title to the property, "merger" brought about an

extinguishment of the easement.

The petitioner submits that the respondent Court of Appeals erred, because the very deed of

sale executed between the private respondent and the previous owner of the property

"excluded" the alley in question, and that in any event, the intent of the parties was to retainthe "alley" as an easement notwithstanding the sale.LLpr

As already stated at the outset, the Court finds merit in the petition.

There is no question that an easement, as described in the deed of sale executed between the

private respondent and the seller, had been constituted on the private respondent's property,

and has been in fact annotated at the back of Transfer Certificate of Title No. 128784.

Specifically, the same charged the private respondent as follows: "(6) That the alley shall

remain open at all times, and no obstructions whatsoever shall be placed thereon; (7) That the

owner of the lot on which the alley has been constructed shall allow the public to use the

same, and allow the City to lay pipes for sewer and drainage purposes, and shall not [ask] forany indemnity for the use thereof . . . " 8 Its act, therefore, of erecting steel gates across the

alley was in defiance of these conditions and a violation of the deed of sale, and, of course, theservitude of way.

The Court then is of the opinion that injunction was and is proper and in denying injunctiverelief on appeal, the respondent Appellate Court committed an error of judgment and law.

It is hardly the point, as the Court of Appeals held, that the private respondent is the owner of

the portion on which the right-of-way had been established and that an easement can notimpair ownership. The petitioner is not claiming the easement or any part of the property as its

own, but rather, it is seeking to have the private respondent respect the easement already

existing thereon. The petitioner is moreover agreed that the private respondent has ownership,

but that nonetheless, it has failed to observe the limitation or encumbrance imposed on the

same.

There is therefore no question as to ownership. The question is whether or not an easementexists on the property, and as we indicated, we are convinced that an easement exists.

It is true that the sale did include the alley. On this score, the Court rejects the petitioner's

contention that the deed of sale "excluded" it, because as a mere right-of-way, it can not beseparated from the tenement and maintain an independent existence. Thus:

Art. 617. Easements are inseparable from the estate to which theyactively or passively belong.9

Servitudes are merely accessories to the tenements of which they form part. 10 Although theyare possessed of a separate juridical existence, as mere accessories, they can not, however, be

alienated12

The fact, however, that the alley in question, as an easement, is inseparable from the main lot

is no argument to defeat the petitioner's claims, because as an easement precisely, it operates

as a limitation on the title of the owner of the servient estate, specifically, his right to use ( jus

utendi).

As the petitioner indeed hastens to point out, the deed itself stipulated that "a portion thereof

[of the tenement] measuring NINE HUNDRED FOURTEEN SQUARE METERS, more or

less, had been converted into a private alley for the benefit of the neighboring estates . .."13and precisely, the former owner, in conveying the property, gave the private owner adiscount on account of the easement, thus:

WHEREAS, to compensate for the foregoing, the parties hereto agreed

to adjust the purchase price from THREE MILLION SEVEN

HUNDRED NINETY THOUSAND FOUR HUNDRED FORTY

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8/11/2019 Solid - Choco

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PESOS (P3,790,440.) to THREE MILLION FIVE HUNDRED THREETHOUSAND TWO HUNDRED FORTY PESOS (P3,503,240.00)14

Hence, and so we reiterate, albeit the private respondent did acquire ownership over the

propertyincluding the disputed alley as a result of the conveyance, it did not acquire the

right to close that alley or otherwise put up obstructions thereon and thus prevent the publicfrom using it, because as a servitude, the alley is supposed to be open to the public.

The Court is furthermore of the opinion, contrary to that of the Court of Appeals, that no

genuine merger took place as a consequence of the sale in favor of the private

respondent corporation. According to the Civil Code, a merger exists when ownership of thedominant and servient estates is consolidated in the same person. 15 Merger then, as can beseen, requires full ownership of both estates.

One thing ought to be noted here, however. The servitude in question is a personal servitude,

that is to say, one constituted not in favor of a particular tenement (a real servitude) but rather,for the benefit of the general public.

Personal servitudes are referred to in the following article of the Civil Code:

Art. 614. Servitudes may also be established for the benefit of a

community, or of one or more persons to whom the encumbered estate

does not belong.16

In a personal servitude, there is therefore no "owner of a dominant tenement" to speak of, and

the easement pertains to persons without a dominant estate,17in this case, the public at large.

Merger, as we said, presupposes the existence of a prior servient-dominant owner relationship,

and the termination of that relation leaves the easement of no use. Unless the owner conveys

the property in favor of the public if that is possible no genuine merger can take placethat would terminate a personal easement.prLL

For this reason, the trial court was not in error in rendering summary judgment, and insofar as

the respondent Court of Appeals held that it (the trial court) was in error, the Court of Appealsis in error.

Summary judgments under Rule 34 of the Rules of Court are proper where there is no genuine

issue as to the existence of a material fact, and the facts appear undisputed based on the

pleadings, depositions, admissions, and affidavits of record. 18 In one case, this Court upheld

a decision of the trial court rendered by summary judgment on a claim for money to which thedefendant interposed the defense of payment but which failed to produce receipts.19We heldthat under the circumstances, the defense was not genuine but rather, sham, and which

justified a summary judgment. In another case, we rejected the claim of acquisitive

prescription over registered property and found it likewise to be sham, and sustained

consequently, a summary judgment rendered because the title challenged was covered by aTorrens Certificate and under the law, Torrens titles are imprescriptible.20

We also denied reconveyance in one case and approved a summary judgment renderedthereon, on the ground that from the records, the plaintiffs were clearly guilty of laches having

failed to act until after twenty-seven years.21We likewise allowed summary judgment andrejected contentions of economic hardship as an excuse for avoiding payment under a contract

for the reason that the contract imposed liability under any and all conditions.22

In the case at bar, the defense of merger is, clearly, not a valid defense, indeed, a sham one,because as we said, merger is not possible, and secondly, the sale unequivocally preserved the

existing easement. In other words, the answer does not, in reality, tender any genuine issue ona material fact and can not militate against the petitioner's clear cause of action.

As this Court has held, summary judgments are meant to rid a proceeding of the ritual of atrial where, from existing records, 23 the facts have been established, and trial would be futile.

What indeed, argues against the posturing of the private respondent and consequently, thechallenged holding of the respondent Court of Appeals as well is the fact that the Court of

Appeals itself had rendered judgment, in its CA-G.R. No. 13421,

entitled Solid Manila Corporation v. Ysrael,in which it nullified the cancellation of the

easement annotated at the back of the private respondent's certificate of title ordered by JudgeYsrael in LRC Case No. 273. As the petitioner now in fact insists, the Court of Appeals'

judgment, which was affirmed by this Court in i ts Resolution dated December 14, 1988, in

G.R. No. 83540, is at least, the law of the case between the parties, as "law of the case" isknown in law, e.g.:

xxx xxx xxx

"Law of the case" has been defined as the opinion delivered on a former

appeal. More specifically, it means that whatever is once irrevocablyestablished as the controlling legal rule of decision between the same

parties in the same case continues to be the law of the case, whether

correct on general principles or not, so long as the facts on which such

decision was predicated continue to be the facts of the case before the

court. (21 C.J.S. 330).

It may be stated as a rule of general application that, where the evidence

on a second or succeeding appeal is substantially the same as that on the

first or preceding appeal, all matters, questions, points, or issuesadjudicated on the prior appeal are the law of the case on all subsequent

appeals and will not be considered or readjudicated therein. (5 C.J.S.1267).

In accordance with the general rule stated in Section 1821, where, after

a definite determination, the court has remanded the cause for further

action below, it will refuse to examine question other than those arising

subsequently to such determination and remand, or other than the

propriety of the compliance with its mandate; and if the court below has

proceeded in substantial conformity to the directions of the appellatecourt, its action will not be questioned on a second appeal.

As a general rule a decision on a prior appeal of the same case is held to

be the law of the case whether that decision is right or wrong, theremedy of the party deeming himself aggrieved being to seek arehearing." (5 C.J.S. 1276-77).

Questions necessarily involved in the decision on a former appeal will

be regarded as the law of the case on a subsequent appeal, although the

questions are not expressly treated in the opinion of the court, as the

presumption is that all the facts in the case bearing on the point decided

have received due consideration whether all or none of them arementioned in the opinion. (5 C.J.S. 1286-87).24

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BOGO-MEDELLIN MILLING CO., INC.,petitioner, vs. COURT OFAPPEALS AND Heirs of MAGDALENO VALDEZ SR.,respondents.

SYNOPSISThis case involves a narrow lot known as Lot 954 of the Cadastral Survey of Medellin, Cebu

where the railroad tracks of the Bogo-Medellin Milling Co., Inc. (Bomedco) were laid and was

also registered in its name. However, herein respondent heirs of Magdaleno Valdez, Sr. filed a

complaint before the Regional Trial Court of Cebu City, Branch IX for payment of

compensation and/or recovery of possession of real property and damages against Bomedco

by claiming ownership of the said narrow lot. After trial, the court a quorejected Bomedco's

defense of ownership on the basis of a prior sale. Nonetheless, it held that Bomedco had been

in possession of Cadastral Lot No. 954 in good faith for more than 10 years, thus, it had

already acquired ownership of the property through acquisitive prescription under Article 620of the Civil Code. When this case was elevated to the Court of Appeals, the latter reversed the

trial court's decision. It held that Bomedco only acquired an easement of right of way by

unopposed and continuous use of the land, but not ownership, under Article 620 of the Civil

Code. Thus, it awarded compensation to the respondent heirs, to be computed from the time ofdiscovery of the adverse acts of Bomedco. Consequently, Bomedco interposed this

petition. caSDCA

The Court was inclined to believe the version of respondent heirs that an easement of the right

of way was actually granted to petitioner for which reason the latter was able to occupy

Cadastral Lot No. 954. It cannot disregard the fact that, for the years 1930, 1937, 1949, 1962

and 1963, petitioner unequivocally declared the property to be a "central railroad right of way"or "sugar central railroad right of way" in its real estate tax receipts when it could have

declared it to be "industrial land" as it did for the years 1975 and 1985. Instead of indicating

ownership of the lot, these receipts showed that all petitioner had was possession by virtue of

the right of way granted to it. Moreover, the mere expiration of the period of easement in 1959

did not convert petitioner's possession into an adverse one. To be sure, beginning 1959 whenthe original 30-year grant of right of way given to petitioner Bomedco expired, its occupation

and use of Cadastral Lot No. 954 came to be by mere tolerance of the respondent heirs. Thus,

upon demand by said heirs in 1989 for the return of the subject land and the removal of therailroad tracks, or, in the alternative, payment of compensation for the use thereof, petitioner

Bomedco which had no title to the land should have returned the possession thereof or should

have begun paying compensation for its use.

Accordingly, the decision of the Court of Appeals was modified. Petitioner Bomedco was

ordered to vacate the subject land, remove its railway tracks thereon and return its possessionto respondent heirs.

SYLLABUS1. CIVIL LAW; PROPERTY; PRESCRIPTION; EXTRAORDINARY ACQUISITIVE

PRESCRIPTION; POSSESSION MUST BE UNDER A CLAIM OF TITLE. There is no

dispute that the controversial strip of land has been in the continuous possession of petitionersince 1929. But possession, to constitute the foundation of a prescriptive right, must be

possession under a claim of title, that is, it must be adverse. Unless coupled with the element

of hostility towards the true owner, possession, however long, will not confer title byprescription.

2. ID.; ID.; EASEMENTS; PERSON CANNOT HAVE AN EASEMENT ON HIS OWN

LAND. [W]e are inclined to believe the version of respondent heirs that an easement of

right of way was actually granted to petitioner for which reason the latter was able to occupyCadastral Lot No. 954. We cannot disregard the fact that, for the years 1930, 1937, 1949, 1962

and 1963, petitioner unequivocally declared the property to be a "central railroad right of way"

or "sugar central railroad right of way" in its real estate tax receipts when it could have

declared it to be "industrial land" as it did for the years 1975 and 1985. Instead of

indicating ownershipof the lot, these receipts showed that all petitioner had waspossessionby

virtue of the right of way granted to it. Were it not so and petitioner really owned the land,

petitioner would not have consistently used the phrases "central railroad right of way" and

"sugar central railroad right of way" in its tax declarations until 1963. Certainly an owner

would have found no need for these phrases. A person cannot have an easement on his own

land, since all the uses of an easement are fully comprehended in his general right ofownership. DcTSHa

3. ID.; ID.; ID.; TAX DECLARATIONS CONSTITUTE STRONG EVIDENCE OFOWNERSHIP OF THE LAND BUT DOES NOT APPLY IN CASES WHERE THE

PROPERTY IS DECLARED TO BE A MERE EASEMENT OF RIGHT OF WAY. While

it is true that, together with a person's actual and adverse possession of the land, taxdeclarations constitute strong evidence of ownership of the land occupied by him, this legal

precept does not apply in cases where the property is declared to be a mere easement of rightof way.

4. ID.; ID.; ID.; ACKNOWLEDGMENT THEREOF IS AN ADMISSION THAT THE

PROPERTY BELONGS TO ANOTHER. An easement or servitude is a real right,

constituted on the corporeal immovable property of another, by virtue of which the owner has

to refrain from doing, or must allow someone to do, something on his property, for the benefit

of another thing or person. It exists only when the servient and dominant estates belong to twodifferent owners. It gives the holder of the easement an incorporeal interest on the land but

grants no title thereto. Therefore, an acknowledgment of the easement is an admission that the

property belongs to another. Having held the property by virtue of an easement, petitionercannot now assert that. its occupancy since 1929 was in the concept of an owner. Neither can

it declare that the 30-year period of extraordinary acquisitive prescription started from that

year.

5. ID.; ID.; ID.; MERE EXPIRATION OF THE PERIOD THEREOF DID NOT CONVERT

ONE'S POSSESSION INTO AN ADVERSE ONE. The mere expiration of the period of

easement in 1959 did not convert petitioner's possession into an adverse one. Mere material

possession of land i s not adverse possession as against the owner and is insufficient to vest

title, unless such possession is accompanied by the intent to possess as an owner. There should

be a hostile use of such a nature and exercised under such circumstances as to manifest and

give notice that the possession is under a claim of right.

6. ID.; ID.; ID.; ID.; CASE AT BAR. In the absence of an express grant by the owner, or

conduct by petitioner sugar mill from which an adverse claim can be implied, its possession of

the lot can only be presumed to have continued in 'the same character as when it was acquired

(that is, it possessed the land only by virtue of the original grant of the easement of right of

way), or was by mere license or tolerance of the owners (respondent heirs). It is a fundamental

principle of law in this jurisdiction that acts of possessory character executed by virtue of

license or tolerance of the owner, no matter how long, do not start the running of the period of

prescription. After the grant of easement expired in 1959, petitioner never performed any act

incompatible with the ownership of respondent heirs over Cadastral Lot No. 954. On the

contrary, until 1963, petitioner continued to declare the "sugar central railroad right of way" in

its realty tax receipts, thereby doubtlessly conceding the ownership of respondent heirs.

Respondents themselves were emphatic that they simply tolerated petitioner's continued use of

Cadastral Lot No. 954 so as not to jeopardize the employment of one of their co-heirs in thesugar mill of petitioner.

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7. ID.; ID.; PRESCRIPTION; EXTRAORDINARY ACQUISITIVE PRESCRIPTION;

APPLICABLE BUT NOT COMPLIED WITH IN CASE AT BAR. The only time

petitioner assumed a legal position adverse to respondents' was when it filed a claim over the

property in 1965 during the cadastral survey of Medellin. Since then (1965) and until the

filing of the complaint for the recovery of the subject land before the RTC of Cebu in 1989,

only 24 years had lapsed. Since the required 30-year extraordinary prescriptive period had notyet been complied with in 1989, petitioner never acquired ownership of the subject l and.

8. REMEDIAL LAW; CIVIL PROCEDURE; ACTIONS; LACHES; NOT CONSTITUTEDBY MERE LAPSE OF TIME OR DELAY. It is not just the lapse of time or delay that

constitutes laches. The essence of laches is the failure or neglect, for an unreasonable andunexplained length of time, to do that which, through due diligence, could or should have beendone earlier, thus giving rise to a presumption that the party entitled to assert it had eitherabandoned or declined to assert it. TEDaAc

9. ID.; ID.; ID.; ID.; ESSENTIAL ELEMENTS. Its essential elements are: (a) conduct on

the part of the defendant, or of one under whom he claims, giving rise to the situation

complained of; (b) delay in asserting complainant's rights after he had knowledge of

defendant's acts and after he has had the opportunity to sue; (c) lack of knowledge or notice by

defendant that the complainant will assert the right on which he bases his suit; and (d) injuryor prejudice to the defendant in the event the relief is accorded to the complainant.

10. ID.; ID.; ID.; ID.; ASPECTS OF DELAY IN ASSERTING COMPLAINANT'S RIGHTS.

The second element (which in turn has three aspects) is lacking in the case at bar. These

aspects are: (a) knowledge of defendant's action, (b) opportunity to sue defendant afterobtaining such knowledge and (c) delay in the filing of such suit.

11. ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. Records show that respondent

heirs only learned about petitioner's claim on their property when they discovered the

inscription for the cadastral survey in the records of the Bureau of Lands in 1989. Respondents

lost no time in demanding an explanation for said claim in their letters to the petitioner dated

March 1. 1989 and April 6. 1989. When petitioner ignored them, they instituted theircomplaint before the Regional Trial Court of Cebu City on June 8, 1989.

12. ID.; ID.; ID.; ID.; CARO vs. COURT OF APPEALSAND VDA. DE ALBERTO vs.

COURT OF APPEALS; NOT APPLICABLE IN CASE AT BAR. Petitioner's reliance

on Caro vs.Court of Appeals andVda.de Alberto vs.Court of Appeals is misplaced. There,laches was applied to bar petitioners from questioning the ownership of the disputed properties

precisely because they had knowledge of the adverse claims on their properties yet tarried foran extraordinary period of time before taking steps to protect their rights.

13. ID.; ID.; ID.; ID.; A RULE OF EQUITY. [T]here is no absolute rule on what

constitutes laches. It is a rule of equity and applied not to penalize neglect or sleeping on one's

rights but rather to avoid recognizing a right when to do so would result in a clearly unfairsituation. The question of lathes is addressed to the sound discretion of the court and each case

must be decided according to its particular circumstances. It is the better rule that courts, under

the principle of equity, should not be guided or bound strictly by the statute of limitations or

the doctrine of laches if wrong or injustice will result.

14. CIVIL LAW; PROPERTY; EASEMENTS; THE NATURE THEREOF WHETHER

CONTINUOUS OR DISCONTINUOUS IS IN ACCORDANCE TO THE MANNER THEYARE EXERCISED. Under civil law and its jurisprudence, easements are either continuous

or discontinuous according to the manner they are exercised, not according to the presence of

apparent signs or physical indications of the existence of such easements. Thus, an easement is

continuous if its use is, or may be, incessant without the intervention of any act of man, like

the easement of drainage; and it is discontinuous if it is used at intervals and depends on the

act of man, like the easement of right of way.

15. ID.; ID.; ID.; RIGHT OF WAY; CLASSIFIED AS DISCONTINUOUS. The easement

of right of way is considered discontinuous because it is exercised only if a person passes or

sets foot on somebody else's land. Like a road for the passage of vehicles or persons, aneasement of right of way of railroad tracks is discontinuous because the right is exercised only

if and when a train operated by a person passes over another's property. In other words, thevery exercise of the servitude depends upon the act or intervention of man which is the veryessence of discontinuous easements.

16. ID.; ID.; ID.; ID.; CANNOT BE ACQUIRED BY PRESCRIPTION. In Cuba, it has

been held that the existence of apermanent railway does not make the right of way a

continuous one;it is only apparent. Therefore, it cannot be acquired by prescription. In

Louisiana, it has also been held that a right of passage over another's land cannot be claimedby prescription because this easement is discontinuous and can be established only by title.

17. ID.; ID.; ID.; ID.; CAN ONLY BE ACQUIRED BY TITLE. In this case, the presence

of railroad tracks for the passage of petitioner's trains denotes the existence of an apparent butdiscontinuous easement of right of way. And underArticle 622 of the Civil Code,

discontinuous easements, whether apparent or not, may be acquired only by

title. Unfortunately,

petitioner Bomedco never acquired any title over the use of the railroad right of way whether

by law, donation, testamentary succession or contract. Its use of the right of way, however

long, never resulted in its acquisition of the easement because, under Article 622, the

discontinuous easement of a railroad right of way can only be acquired by titleand not byprescription. DCTSEA

18. ID.; ID.; ID.; PRESENCE OF PHYSICAL OR VISUAL SIGNS CLASSIFIES AN

EASEMENT INTO APPARENT OR NONAPPARENT. The presence of more or less

permanent railroad tracks does not in any way convert the nature of an easement of right ofway to one that is continuous. It is not the presence of apparent signs or physical

indicationsshowing the existence of an easement, but rather the manner of exercise

thereof, that categorizes such easement into continuous or discontinuous. The presence of

physical or visual signs only classifies an easement into apparentor non-apparent. Thus, aroad (which reveals a right of way) and a window (which evidences a right to light and view)

are apparent easements, while an easement of not building beyond a certain height is non-apparent.

19. ID.; ID.; ID.; RIGHT OF WAY; AFTER THE EXPIRATION OF THE ORIGINALGRANT THEREOF, ITS POSSESSION SHOULD BE RETURNED TO THE OWNER OR

THE POSSESSOR SHOULD HAVE BEGUN PAYING COMPENSATION FOR ITS USE.

To be sure, beginning 1959 when the original 30-year grant of right of way given topetitioner Bomedco expired, its occupation and use of Cadastral Lot No. 954 came to be by

mere tolerance of the respondent heirs. Thus, upon demand by said heirs in 1989 for the return

of the subject land and the removal of the railroad tracks, or, in the alternative, payment of

compensation for the use thereof, petitioner Bomedco which had no title to the land shouldhave returned the possession thereof or should have begun paying compensation for its use.

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20. ID.; ID.; ID.; ID.; WHEN A PARTY IS DEEMED TO ACQUIRE TITLE OVER THE

USE OF LAND. But when is a party deemed to acquire title over the use of such land (that

is, title over the easement of right of way)? In at least two cases, we held that if: (a) it had

subsequently entered into a contractualright of way with the heirs for the continued use of the

land under the principles of voluntary easements or (b) it had filed a case against the heirs for

conferment on it of a legal easement of right of way under Article 629 of the Civil Code, thentitle over the useof the land is deemed to exist.

21. ID.; ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. None of the above optionsto acquire title over the railroad right of way was ever pursued by petitioner despite the fact

that simple resourcefulness demanded such initiative, considering the importance of therailway tracks to its business. No doubt, it is unlawfully occupying and using the subject stripof land as a railroad right of way without valid title yet it refuses to vacate it even after

demand of the heirs. Furthermore, it tenaciously insists on ownership thereof despite a clear

showing to the contrary. We thus uphold the grant by the Court of Appeals of attorney's feesin the amount of P10,000 considering the evident bad faith of petitioner in refusing

respondents' just and lawful claims, compelling the latter to litigate. CcAITa

22. ID.; ID.; ID.; ID.; REQUISITES FOR CONFERMENT THEREOF. The conferment of

a legal easement of right of way under Article 629 is subject to proof of the following: (1) it is

surrounded by other immovables and has no adequate outlet to a public highway; (2) payment

of proper indemnity; (3) the isolation is not the result of its own acts; and (4) the right of way

claimed is at the point least prejudicial to the servient estate, and, insofar as consistent with

this rule, the distance from the dominant estate to the highway is the shortest.

D E C I S I O N CORONA,Jp:This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to annul and setaside the decision1 dated November 17, 1995 of the Court of Appeals, Tenth Division, whichreversed the decision2 dated November 27, 1991 of the Regional Trial Court of Cebu City,Branch IX, which ruled in favor of herein petitioner, Bogo-Medellin Milling Company, Inc.and dismissed herein private respondents' complaint for payment of compensation and/or

recovery of possession of real property and damages with application for restraining order

preliminary injunction; and its resolution dated March 2, 1996 denying petitioner's motion for

reconsideration. aHcDEC

The antecedent facts follow.

Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez, Angelina Valdez-

Novabos, Teresita Argawanon-Mangubat and Daylinda Argawanon-Melendres (hereafter the

heirs), purchased from Feliciana Santillan, on December 9, 1935, a parcel of unregistered land

covered by Tax Declaration No. 3935 with an area of one hectare, 34 ares and 16 centares,

located in Barrio Dayhagon, Medellin, Cebu.3 He took possession of the property anddeclared it for tax purposes in his name.4

Prior to the sale, however, the entire length of the land from north to south was already

traversed in the middle by railroad tracks owned by petitioner Bogo-Medellin Milling Co., Inc.(hereafter Bomedco). The tracks were used for hauling sugar cane from the fields to

petitioner's sugar mill.

When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents inherited the

land. However, unknown to them, Bomedco was able to have the disputed middle lot which

was occupied by the railroad tracks placed in its name in the Cadastral Survey of Medellin,

Cebu in 1965. The entire subject land was divided into three, namely, Cadastral Lot Nos. 953,

954 and 955. Lot Nos. 953 and 955 remained in the name of private respondents. However,

Lot No. 954, the narrow lot where the railroad tracks lay, was claimed by Bomedco as its ownand was declared for tax purposes in its name.5

It was not until 1989 when private respondents discovered the aforementioned claim of

Bomedco on inquiry with the Bureau of Lands. Through their lawyer, they immediately

demanded the legal basis for Bomedco's claim over Cadastral Lot No. 954 but their letter of

inquiry addressed to petitioner went unheeded, as was their subsequent demand for payment ofcompensation for the use of the land.6

On June 8, 1989, respondent heirs filed a "Complaint for Payment of Compensation and/orRecovery of Possession of Real Property and Damages with Application for Restraining

Order/Preliminary Injunction" against Bomedco before the Regional Trial Court of

Cebu.7 Respondent heirs alleged that, before she sold the land to Valdez, Sr. in 1935,Santillan granted Bomedco, in 1929, a railroad right of way for a period of 30 years. When

Valdez, Sr. acquired the land, he respected the grant. The right of way expired sometime in

1959 but respondent heirs allowed Bomedco to continue using the land because one of them

was then an employee of the company.8

In support of the complaint, they presented an ancient document an original copy of the

deed of sale written in Spanish and dated December 9, 19359to evidence the sale of theland to Magdaleno Valdez, Sr.; several original estate tax receipts 10 including Real Property

Tax Receipt No. 393511 dated 1922 in the name of Graciano de los Reyes, husband ofFeliciana Santillan, and Real Property Tax Receipt No. 0949112 dated 1963 in the name ofMagdaleno Valdez, Sr. Magdaleno Valdez, Jr. also testified for the plaintiffs during the trial.

On the other hand, Bomedco's principal defense was that it was the owner and possessor ofCadastral Lot No. 954, having allegedly bought the same from Feliciana Santillan in 1929,

prior to the sale of the property by the latter to Magdaleno Valdez, Sr. in 1935. It also

contended that plaintiffs' claim was already barred by prescription and laches because ofBomedco's open and continuous possession of the property for more than 50 years. SDTaHc

Bomedco submitted in evidence a Deed of Sale 13dated March 18, 1929; seven real estate taxreceipts14 for the property covering the period from 1930 to 1985; a 1929 Survey Plan of

private land for Bogo-Medellin Milling Company;15 a Survey Notification Card;16 Lot DataComputation for Lot No. 954;17 a Cadastral Map for Medellin Cadastre18 as well as the

testimonies of Vicente Basmayor, Geodetic Engineer and property custodian for Bomedco,and Rafaela A. Belleza, Geodetic Engineer and Chief of the Land Management Services of theDENR, Region VIII.

In its decision dated November 27, 1991, the trial court19 rejected Bomedco's defense ofownership on the basis of a prior sale, citing that its evidence a xerox copy of the Deed of

Sale dated March 18, 1929 was inadmissible and had no probative value. Not only was it

not signed by the parties but defendant Bomedco also failed to present the original copywithout valid reason pursuant to Section 4, Rule 130 of the Rules of Court.20

Nonetheless, the trial court held that Bomedco had been in possession of Cadastral Lot No.

954 in good faith for more than 10 years, thus, it had already acquired ownership of theproperty through acquisitive prescription under Article 620 of the Civil Code. It explained:

Under Article 620 of the Civil Code, CONTINUOUS and APPARENTeasements can be acquired by prescription after ten (10) years. The

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