Note.—The law expressly authorizes the purchaser topetition for a writ of possession by filing an ex parte motion;The ex parte nature of the proceeding does not deny dueprocess to the mortgagor because the issuance of the writ ofpossession does not bar a separate case for annulment ofmortgage and foreclosure sale. (Carlos vs. Court of Appeals,537 SCRA 247 [2007])

——o0o——

G.R. No. 173252. July 17, 2009.*

UNISOURCE COMMERCIAL AND DEVELOPMENTCORPORATION, petitioner, vs. JOSEPH CHUNG, KIATCHUNG and KLETO CHUNG, respondents.

Easements; Words and Phrases; An easement is a real right onanother’s property, corporeal and immovable, whereby the owner ofthe latter must refrain from doing or allowing somebody else to door something to be done on his property, for the benefit of anotherperson or tenement.—As defined, an easement is a real right onanother’s property, corporeal and immovable, whereby the ownerof the latter must refrain from doing or allowing somebody else todo or something to be done on his property, for the benefit ofanother person or tenement. Easements are established either bylaw or by the will of the owner. The former are called legal, andthe latter, voluntary easements.

Same; The opening of an adequate outlet to a highway canextinguish only legal or compulsory easements, not voluntaryeasements; The fact that an easement by grant may have alsoqualified as an easement of necessity does not detract from itspermanency as a property right, which survives the termination ofthe necessity.—Having made such an admission, petitioner cannotnow claim that what exists is a legal easement and that the sameshould be can­

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* SECOND DIVISION.

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celled since the dominant estate is not an enclosed estate as it hasan adequate access to a public road which is Callejon MatienzaStreet. As we have said, the opening of an adequate outlet to ahighway can extinguish only legal or compulsory easements, notvoluntary easements like in the case at bar. The fact that aneasement by grant may have also qualified as an easement ofnecessity does not detract from its permanency as a propertyright, which survives the termination of the necessity. Avoluntary easement of right of way, like any other contract, couldbe extinguished only by mutual agreement or by renunciation ofthe owner of the dominant estate.

Same; A voluntary easement of right of way is like any othercontract—it is generally effective between the parties, their heirsand assigns, except in case where the rights and obligationsarising from the contract are not transmissible by their nature, orby stipulation or by provision of law.—Neither can petitionerclaim that the easement is personal only to Hidalgo since theannotation merely mentioned Sandico and Hidalgo withoutequally binding their heirs or assigns. That the heirs or assigns ofthe parties were not mentioned in the annotation does not meanthat it is not binding on them. Again, a voluntary easement ofright of way is like any other contract. As such, it is generallyeffective between the parties, their heirs and assigns, except incase where the rights and obligations arising from the contractare not transmissible by their nature, or by stipulation or byprovision of law. Petitioner cites City of Manila v. Entote (57SCRA 497 [1974]) in justifying that the easement should bindonly the parties mentioned therein and exclude those not somentioned. However, that case is inapplicable since the issuetherein was whether the easement was intended not only for thebenefit of the owners of the dominant estate but of the communityand the public at large. In interpreting the easement, the Courtruled that the clause “any and all other persons whomsoever” inthe easement embraces only “those who are privy to the owners ofthe dominant estate, Lots 1 and 2 Plan Pcs­2672” and excludes“the indiscriminate public from the enjoyment of the right­of­wayeasement.”

Same; Land Titles; It is settled that the registration of the

dominant estate under the Torrens system without the annotationof the voluntary easement in its favor does not extinguish theeasement—it is the registration of the servient estate as free, thatis, without the annotation of the voluntary easement, whichextinguishes the

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easement.—We also hold that although the easement does notappear in respondents’ title over the dominant estate, the samesubsists. It is settled that the registration of the dominant estateunder the Torrens system without the annotation of the voluntaryeasement in its favor does not extinguish the easement. On thecontrary, it is the registration of the servient estate as free, thatis, without the annotation of the voluntary easement, whichextinguishes the easement.

Same; If the dominant estate is divided between two or morepersons, each of them may use the easement in its entirety, withoutchanging the place of its use, or making it more burdensome in anyother way.—The mere fact that respondents subdivided theproperty does not extinguish the easement. Article 618 of the CivilCode provides that if the dominant estate is divided between twoor more persons, each of them may use the easement in itsentirety, without changing the place of its use, or making it moreburdensome in any other way.

PETITION for review on certiorari of the decision andresolution of the Court of Appeals.

The facts are stated in the opinion of the Court. Puno and Associates Law Office for petitioner. Oliver O. Lozano for respondents.

QUISUMBING, J.:The instant petition assails the Decision1 dated October

27, 2005 and the Resolution2 dated June 19, 2006 of theCourt of Appeals in CA­G.R. CV No. 76213. The appellatecourt had

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1 Rollo, pp. 26­34. Penned by Associate Justice Josefina Guevara­Salonga, with Associate Justices Delilah Vidallon­Magtolis and FernandaLampas­Peralta, concurring.

2 Id., at pp. 35­36. Penned by Associate Justice Josefina Guevara­

Salonga, with Associate Justices Godardo A. Jacinto and FernandaLampas­Peralta, concurring.

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reversed and set aside the Decision3 dated August 19, 2002of the Regional Trial Court of Manila, Branch 49, in CivilCase No. 00­97526.

The antecedent facts are as follows:Petitioner Unisource Commercial and Development

Corporation is the registered owner of a parcel of landcovered by Transfer Certificate of Title (TCT) No. 1762534

of the Register of Deeds of Manila. The title contains amemorandum of encumbrance of a voluntary easementwhich has been carried over from the Original Certificate ofTitle of Encarnacion S. Sandico. The certified Englishtranslation5 of the annotation reads:

“By order dated 08 October 1924 of the Court of First Instanceof Manila, Chamber IV (AP­7571/T­23046), it is declared thatFrancisco Hidalgo y Magnifico has the right to open doors in thecourse of his lot described as Lot No. 2, Block 2650 of the mapthat has been exhibited, towards the left of the Callejon that isused as a passage and that appears as adjacent to the said Lot 2and to pass through the land of Encarnacion Sandico y Santana,until the bank of the estero that goes to the Pasig River, andtowards the right of the other Callejon that is situated betweenthe said Lot 2 and Lot 4 of the same Block N.”6

As Sandico’s property was transferred to several owners,the memorandum of encumbrance of a voluntary easementin favor of Francisco M. Hidalgo was consistentlyannotated at the back of every title covering Sandico’sproperty until TCT No. 176253 was issued in petitioner’sfavor. On the other hand, Hidalgo’s property waseventually transferred to re­

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3 Records, pp. 233­238. Penned by Judge Concepcion S. Alarcon­Vergara.

4 Id., at p. 10.5 Id., at pp. 11­12.6 Id., at p. 12.

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234 SUPREME COURT REPORTS ANNOTATEDUnisource Commercial and Development Corporation vs.

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spondents Joseph Chung, Kiat Chung and Cleto Chungunder TCT No. 121488.7

On May 26, 2000, petitioner filed a Petition to Cancelthe Encumbrance of Voluntary Easement of Right of Way8

on the ground that the dominant estate has an adequateaccess to a public road which is Matienza Street. The trialcourt dismissed the petition on the ground that it is a landregistration case. Petitioner moved for reconsideration.Thereafter, the trial court conducted an ocular inspection ofthe property. In an Order9 dated November 24, 2000, thetrial court granted the motion and made the followingobservations:

“1. The dominant estate is a property enclosed with aconcrete fence with no less than three (3) doors in it, opening toan alley belonging to the servient estate owned by the petitioner.The alley is leading to Matienza St.;

2. The dominant estate has a house built thereon and saidhouse has a very wide door accessible to Matienza St. without anyobstruction. Said street is perpendicular to J.P. Laurel St.

It is therefore found that the dominant estate has an egress toMatienza St. and does not have to use the servient estate.”10

In their Answer,11 respondents countered that theextinguishment of the easement will be of great prejudiceto the locality and that petitioner is guilty of laches since ittook petitioner 15 years from acquisition of the property tofile the petition.

In a Decision dated August 19, 2002, the trial courtordered the cancellation of the encumbrance of voluntaryeasement of right of way in favor of the dominant estateowned by respondents. It found that the dominant estatehas no more use for

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7  Id., at p. 50.8  Id., at pp. 1­8.9  Id., at p. 34.10 Id.11 Id., at pp. 42­47.

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the easement since it has another adequate outlet to apublic road which is Matienza Street. The dispositiveportion of the decision reads:

“IN VIEW OF ALL THE FOREGOING, the Court herebyorders the cancellation of the Memorandum of Encumbranceannotated in TCT No. 176253 which granted a right of way infavor of the person named therein and, upon the finality of thisdecision, the Register of Deeds of the City of Manila is herebydirected to cancel said encumbrance.

With respect to the other prayers in the petition, consideringthat the same are mere incidents to the exercise by the owners ofright of their ownership which they could well do without theCourt’s intervention, this Court sees no need to specifically rulethereon. The Court cannot award plaintiff’s claims for damagesand attorney’s fees for lack of sufficient bases therefor.

SO ORDERED.”12

Respondents appealed to the Court of Appeals. OnOctober 27, 2005, the appellate court reversed the decisionof the trial court and dismissed the petition to cancel theencumbrance of voluntary easement of right of way.

The appellate court ruled that when petitioner’s petitionwas initially dismissed by the executive judge, the copy ofthe petition and the summons had not yet been served onrespondents. Thus, when petitioner moved to reconsiderthe order of dismissal, there was no need for a notice ofhearing and proof of service upon respondents since thetrial court has not yet acquired jurisdiction over them. Thetrial court acquired jurisdiction over the case and overrespondents only after the summons was served upon themand they were later given ample opportunity to presenttheir evidence.

The appellate court also held that the trial court erred incanceling the encumbrance of voluntary easement of rightof way. The appellate court ruled that Article 631(3)13 ofthe

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12 Id., at pp. 237­238.13 ART. 631. Easements are extinguished:

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236 SUPREME COURT REPORTS ANNOTATEDUnisource Commercial and Development Corporation vs.

Chung

Civil Code, which was cited by the trial court, isinapplicable since the presence of an adequate outlet to ahighway extinguishes only legal or compulsory easementsbut not voluntary easements like in the instant case. Therehaving been an agreement between the original parties forthe provision of an easement of right of way in favor of thedominant estate, the same can be extinguished only bymutual agreement or by renunciation of the owner of thedominant estate.

The decretal portion of the decision reads:

“WHEREFORE, the foregoing considered, the appeal ishereby GRANTED and the assailed decision is REVERSED andSET ASIDE. Accordingly, the petition to cancel the encumbranceof right of way is dismissed for lack of merit.

No costs.SO ORDERED.”14

Before us, petitioner alleges that the Court of Appealserred in:

I.… BRUSHING ASIDE PETITIONER’S CONTENTION THATTHE EASEMENT IS PERSONAL SINCE THE ANNOTATIONDID NOT PROVIDE THAT IT IS BINDING ON THE HEIRS ORASSIGNS OF SANDICO.

II.… NOT CONSIDERING THAT THE EASEMENT IS PERSONALSINCE NO COMPENSATION WAS GIVEN TO PETITIONER.

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x x x x(3)  When either or both of the estates fall into such condition that the

easement cannot be used; but it shall revive if the subsequent condition of theestates or either of them should again permit its use, unless when the use becomespossible, sufficient time for prescription has elapsed, in accordance with theprovisions of the preceding number;

14 Rollo, p. 33.

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III.… DISREGARDING THE CIVIL CODE PROVISION ONUNJUST ENRICHMENT.

IV.… TREATING THE EASEMENT AS PREDIAL.15

Petitioner contends that the fact that Sandico andHidalgo resorted to judicial intervention only shows thatthey contested the existence of the requisite factorsestablishing a legal easement. Besides, the annotationitself provides that the easement is exclusively confined tothe parties mentioned therein, i.e., Sandico and Hidalgo. Itwas not meant to bind their heirs or assigns; otherwise,they would have expressly provided for it. Petitioner addsthat it would be an unjust enrichment on respondents’ partto continue enjoying the easement without adequatecompensation to petitioner. Petitioner also avers that tosay that the easement has attached to Hidalgo’s property iserroneous since such property no longer exists after it hasbeen subdivided and registered in respondents’ respectivenames.16 Petitioner further argues that even if it is boundby the easement, the same can be cancelled or revokedsince the dominant estate has an adequate outlet withouthaving to pass through the servient estate.

Respondents adopted the disquisition of the appellatecourt as their counter­arguments.

The petition lacks merit.As defined, an easement is a real right on another’s

property, corporeal and immovable, whereby the owner ofthe latter must refrain from doing or allowing somebodyelse to do or something to be done on his property, for thebenefit of

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15 Id., at pp. 17­18.16 Id., at pp. 37­39. On May 3, 2005, the property was divided and TCT

Nos. 267948, 267949 and 267950 were issued to respondents.

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another person or tenement. Easements are established

either by law or by the will of the owner. The former arecalled legal, and the latter, voluntary easements.17

In this case, petitioner itself admitted that a voluntaryeasement of right of way exists in favor of respondents. Inits petition to cancel the encumbrance of voluntaryeasement of right of way, petitioner alleged that “[t]heeasement is personal. It was voluntarily constituted infavor of a certain Francisco Hidalgo y Magnifico, the ownerof [the lot] described as Lot No. 2, Block 2650.”18 It furtherstated that “the voluntary easement of the right of way infavor of Francisco Hidalgo y Magnifico was constitutedsimply by will or agreement of the parties. It was not astatutory easement and definitely not an easement createdby such court order because ‘[the] Court merely declaresthe existence of an easement created by the parties.”19 Inits Memorandum20 dated September 27, 2001, before thetrial court, petitioner reiterated that “[t]he annotationfound at the back of the TCT of Unisource is a voluntaryeasement.”21

Having made such an admission, petitioner cannot nowclaim that what exists is a legal easement and that thesame should be cancelled since the dominant estate is notan enclosed estate as it has an adequate access to a publicroad which is Callejon Matienza Street.22 As we have said,the opening of an adequate outlet to a highway canextinguish only legal or compulsory easements, notvoluntary easements like in the case at bar. The fact thatan easement by grant may have also qualified as aneasement of necessity does not

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17 Private Development Corporation of the Philippines v. Court ofAppeals, G.R. No. 136897, November 22, 2005, 475 SCRA 591, 602.

18 Records, p. 2.19 Id., at pp. 3­4.20 Id., at pp. 132­142.21 Id., at p. 135.22 Id., at p. 4.

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detract from its permanency as a property right, whichsurvives the termination of the necessity.23 A voluntary

easement of right of way, like any other contract, could beextinguished only by mutual agreement or by renunciationof the owner of the dominant estate.24

Neither can petitioner claim that the easement ispersonal only to Hidalgo since the annotation merelymentioned Sandico and Hidalgo without equally bindingtheir heirs or assigns. That the heirs or assigns of theparties were not mentioned in the annotation does notmean that it is not binding on them. Again, a voluntaryeasement of right of way is like any other contract. As such,it is generally effective between the parties, their heirs andassigns, except in case where the rights and obligationsarising from the contract are not transmissible by theirnature, or by stipulation or by provision of law.25 Petitionercites City of Manila v. Entote26 in justifying that theeasement should bind only the parties mentioned thereinand exclude those not so mentioned. However, that case isinapplicable since the issue therein was whether theeasement was intended not only for the benefit of theowners of the dominant estate but of the community andthe public at large.27 In interpreting the easement, theCourt ruled that the clause “any and all other personswhomsoever” in the easement embraces only “those whoare privy to the owners of the dominant estate, Lots 1 and2 Plan Pcs­2672” and excludes “the indiscriminate publicfrom the enjoyment of the right­of­way easement.”28

We also hold that although the easement does notappear in respondents’ title over the dominant estate, thesame sub­

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23 La Vista Association, Inc. v. Court of Appeals, G.R. No. 95252,September 5, 1997, 278 SCRA 498, 514.

24 Id., at p. 513.25 Civil Code, Art. 1311.26 No. L­24776, June 28, 1974, 57 SCRA 497.27 Id., at p. 504.28 Id., at p. 507.

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sists. It is settled that the registration of the dominantestate under the Torrens system without the annotation of

the voluntary easement in its favor does not extinguish theeasement. On the contrary, it is the registration of theservient estate as free, that is, without the annotation ofthe voluntary easement, which extinguishes theeasement.29

Finally, the mere fact that respondents subdivided theproperty does not extinguish the easement. Article 61830ofthe Civil Code provides that if the dominant estate isdivided between two or more persons, each of them mayuse the easement in its entirety, without changing theplace of its use, or making it more burdensome in any otherway.

WHEREFORE, the instant petition is DENIED. TheDecision dated October 27, 2005 and the Resolution datedJune 19, 2006 of the Court of Appeals in CA­G.R. CV No.76213 are AFFIRMED.

SO ORDERED.

Carpio­Morales, Chico­Nazario,** Leonardo­DeCastro*** and Brion, JJ., concur.

Petition denied, judgment and resolution affirmed.

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29 Purugganan v. Paredes, No. L­23818, January 21, 1976, 69 SCRA69, 77­78.

30 ART. 618. Easements are indivisible. If the servient estate isdivided between two or more persons, the easement is not modified, andeach of them must bear it on the part which corresponds to him.

If it is the dominant estate that is divided between two or morepersons, each of them may use the easement in its entirety, withoutchanging the place of its use, or making it more burdensome in any otherway.

** Designated member of the Second Division per Special Order No.658.

*** Designated member of the Second Division per Special Order No.635.

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