SECOND DIVISION[G.R. No.7386. March 30, 1912.]

THE ROMAN CATHOLIC ARCHBISHOP OF MANILA,petitioner-appellee,vs. PEDRO P. ROXAS,opponent-appellant.

Sanz & Opisso,for appellant.William A. KincaidandThomas L. Hartigan,for appellee.

SYLLABUS

1.REALTY; EASEMENTS; RIGHT OF WAY. Although a road leading through an estate has been used by the tenants of another estate, by people attending a house of public worship, and by the public generally for a great number of years, no easement is thereby created when the facts show that such use has been merely for convenience. To hold otherwise would destroy all neighborhood accommodations in the way of travel, as no one would incur the danger of encumbering his estate with such a burden for the mere accommodation of his neighbors.2.ID.; ID.; ID.; PRESCRIPTION. To establish the easement of right of way by prescription in those cases where the use is for convenience merely, the presumption of permissive use or license must be overcome.

D E C I S I O NTRENT,Jp:This appeal involves only a right of way claimed by the appellant Pedro P. Roxas, the owner of the dominant estate, across parcel L, the property of the appellee, to Calle Tejeron, a distance of about 100 meters. The servient estate is bounded on the north by an estero; on the west by the dominant estate; on the southwest by Calle Tejeron; and on the west by lands of Francisco Managan. The eastern line, which joins the dominant estate, is 265 meters long. The appellant claims a right of way starting across parcel L at a point 198 meters from the southern extremity of this line. During the trial of this case in the court below the parties entered into the following agreement:"It is admitted as a question of fact that the road between the Hacienda de San Pedro Macati and Calle Tejeron, which, according to the witness Leopoldo Areopaguita, was formerly a meter and a half or two meters wide, although at present it has a greater width, has been used from time immemorial by the tenants of the Hacienda de San Pedro Macati for the passage of carts entering and leaving the Hacienda."In addition to the admitted facts as above set forth, the testimony shows that the road in question is now some 4 meters wide; that since time out of mind there has existed upon lot L near the middle, and also very near this road, a small church; that the faithful use said road in going to this place of worship and that said road is not only used by the tenants of the appellant but also by the people living in thesitioof Suavoy.It is admitted by both parties that the tenants of the dominant estate have used the road in question since time immemorial for carts, both for entering and leaving the hacienda. It is also an established fact that the said hacienda (the dominant estate) is partly bounded on the south by Calle Tejeron. The point where it is claimed that this right of way starts across lot L is only 198.25 meters from the said street. So the claim of the appellant cannot be that the right of way exists by necessity growing out of the peculiar location of his property, but simply that it arises by prescription, founded alone upon immemorial use by his tenants.The result is that the road which the appellant seeks to have declared a right of way for the benefit of his hacienda has been used for a great number of years by the members of the appellee's church to go to and from theermita, and also by the appellant's tenants, and by other people. And furthermore, while it is true that the appellant's tenants have used this road for carts as above stated, yet it has not been shown that such use was absolutely necessary in order to cultivate the dominant estate, but, on the contrary, it clearly appears that the said tenants crossed lot L merely on account of convenience, as they could have reached the public highway by going in other directions, especially south, only 198 meters. Therefore, the admitted and established facts show (1) that the use of the road by the tenants of the appellant in this manner and under these circumstances has not been such as to create an easement by prescription or in any other manner; and (2) that the use of said road by all has been by permission or tolerance of the appellee.Where a tract of land, as in the case at bar, attached to a public meeting house such as theermita is designedly left open and uninclosed for the convenience of the members or worshippers of that church, the mere passage of persons over it in common with those for whose use it was appropriated is to be regarded as permissive and under an implied license, and not adverse. Such a use is not inconsistent with the only use which the proprietor thought fit to make of the land, and until the appellee thinks proper to inclose it, such use is not adverse and will not preclude it from enclosing the land when other views of its interests render it proper to do so. And though an adjacent proprietor may make such use of the open land more frequently than another, yet the same rule will apply unless there be some decisive act indicating aseparate and exclusive use under a claim of right.A different doctrine would have a tendency to destroy all neighborhood accommodations in the way of travel; for if it were once understood that a man, by allowing his neighbor to pass through his farm without objection over the pass-way which he used himself, would thereby, after the lapse of time, confer a right on such neighbor to require the pass-way to be kept open for his benefit and enjoyment, a prohibition against all such travel would immediately ensue. And again, it must be remembered that a right of way, like the one sought to be established in the case at bar, is a charge imposed upon real property for the benefit of another estate belonging to a different owner. Such a right of way is a privilege or advantage in land existing distinct from the ownership of the soil; and because it is a permanent interest in another's land with a right to enter at all times and enjoy it, it can only be founded upon an agreement or upon prescription. And when the latter is relied upon in those cases where the right of way is not essential for the beneficial enjoyment of the dominant estate, the proof showing adverse use which is an affirmative claim must be sufficiently strong and convincing to overcome the presumption of permissive use or license, as such a right of way is never implied because it is convenient.For these reasons, the judgment appealed from denying the appellant's claim to a right of way across lot L is affirmed, with costs against the appellant.Carson, J.,concurs.JohnsonandMoreland, JJ.,concur in the result.TORRES,J.,concurring:I think that the decision should be affirmed in so far as it orders the registration of the land, but with express recognition of the right of way or road across the land, to this extent reversing the portion overruling the objection.|||(Roman Catholic Archbishop of Manila v. Roxas, G.R. No. 7386, [March 30, 1912], 22 PHIL 450-453)

FIRST DIVISION[G.R. No.9989. March 13, 1918.]

EDUARDO CUAYCONG ET AL.,plaintiff-appellee,vs. RAMONA BENEDICTO ET AL.,defendants-appellants.Ruperto MontinolaandAurelio Montinolafor appellants.No appearancefor appellees.

SYLLABUS

1.ROADS AND STREETS; EASEMENTS; REGISTRATION OF LAND; TORRENTS TITLE. Unless is made to appear upon the certificate of title that the boundaries of any given highway, way, or private way upon the land have been determined, the right to such highway, way, or private way is unaffected by the registration of the title.2.REALTY; ENCUMBRANCES; PRESUMPTIONS. Real property is presumed to be free from liens and encumbrances.3.ROADS AND STREETS; UPKEEP BY GOVERNMENT; PRESUMPTION. Where it appears that a road has been kept in repair by private enterprise and that the Government has not contributed to the cost of its construction or maintenance, such road will be presumed to be private.4.ID; PRESUMPTION; USER; TOLERANCE; PUBLIC USE. The mere fact that a tract of land has been used for a long time as a road will not warrant the presumption that it has been dedicated to the public.5.REALITY; PRESCRIPTION; POSSESSION; TOLERANCE . Possession, to constitute the foundation of a perspective right, must be possession under claim of title. Acts of a possessory character performed by one who holds by the mere tolerance of the owner cannot be made the basis of the perspective acquisition of rights.6.IMMEMORIAL POSSESSION; EVIDENCE. Under the Spanish law the proof of immemorial possession required something more than the memory of living witnesses.7.EASEMENTS OF WAY; USER; TOLERANCE; PRESCRIPTION. The permissive use by an adjacent proprietor of a road or path over the land of another no matter how long continued, will not create an easement of way prescription.

D E C I S I O N

FISHER,Jp:

The issues in this case relate to the right of plaintiff to make use of two roads existing on the Hacienda Torena, a tract of land in the municipality of Victorias, Negros Occidental, the property of the defendants, Blasa Benedicto and Ramona Benedicto. One of these roads is referred to in the proceedings as the Nanca-Victorias road and the other as the Dacuman-Toreno road. The court of First Instance held that those of the plaintiffs who claimed to be entitled to make use of the Dacuman-Toreno road had failed to establish the asserted right, and dismissed the action as to them. From this decision they appealed to this court but, their brief not having been filed within the time prescribed by the rules, their appeal was dismissed, on motion of defendants, by resolution dated February 14, 1916. Consequently, the issues presented on this appeal are limited to those which relate to the rights of the parties with respect to the Nanca-Victorias road, and the determination of the correctness of the decision of the court concerning that part of the controversy submitted to its decision.The allegations in the complaint with respect to the Nanca-Victorias road are that the appellees, Eduardo Cuaycong, Lino Cuaycong, and Eulalio Dolor, are the owners of a group of hacienda situated between the southern boundary of the Hacienda Toreno and the barrio of Nanca, of the municipality of Saravia, and that the appellees Silverio Ginoo, Gervasio Ascalon, and Juan Ledesma, are the lessees of part of said hacienda; that for more than twenty years the appellees and their predecessors in interest have made use of the Nanca-Victorias road, which crosses the Hacienda Toreno, openly, publicly, and continuously, with the knowledge of the owners of the said hacienda, for the purpose of conveying the products of their hacienda to the town of Victorias and to the landing place there situated, and for the purpose of transporting supplies from those points to their haciendas, making use of the said road by means of carts, carabaos, and other usual means of transportation; that there is no outlet to a public road from the hacienda occupied by these plaintiffs, the only road and way by which the products of the plaintiffs' property can be taken to the town of Victorias and to the landing place there being across the Hacienda Toreno by the road marked on the plan attached to the complaint; that on the fifteenth day of November, 1912, the defendants closed the road in question at the point at which it crosses the Hacienda Toreno, and refused to permit plaintiffs to continue using it; that plaintiffs were about to commence to grind their crop of sugar cane, and that, if prevented from transporting their sugar across the Hacienda Toreno to their point of embarcation, would suffer damages difficult to estimate. Upon these averments of fact plaintiffs prayed for a judgment that they are entitled to use the road in question as they have been using in the past, and that a perpetual injunction be issued against plaintiffs restraining them from impeding such use. Upon the filing of the complaint, plaintiffs moved the court to issue a preliminary injunction restraining defendants from interfering with the use of the road during the pendency of the suit, which motion was granted by the court.Defendants in their answer put in issue all the special averments of the complaint, as above set forth, and by way of counterclaim and special defense, averred that the road crossing the Hacienda Toreno, over which plaintiffs claim the right of passage, is the private property of defendants; and, further, that they have not refused plaintiffs permission to pass over this road but have required them to pay toll for the privilege of doing so. Defendants also claimed damages for the use of the road by plaintiffs during the pendency of the suit, alleging that the preliminary injunction had been improvidently issued upon false statements contained in the verified complaint filed by plaintiffs.The case was tried in July, 1913. The court on December 8, 1913, rendered judgment, dismissing the complaint with respect to the plaintiffs Felix Suarez, Probo Jereza, Enrique Azcona, and Melecio Pido, these being the plaintiffs who claimed the right to use the Dacuman-Toreno road. With respect to the Nanca-Victorias road, the court held that it was a public highway over which the public had acquired a right of use of immemorial prescription, and ordered the issuance of a perpetual injunction against plaintiffs, restraining them from interfering in any manner with the use of the said road.The conclusion of the court with respect to the facts affecting the Nanca-Victorias road are as follows:"Turning to a consideration of the evidence relative to the Nanca-Victorias road we find incontestable proof that it has been in existence for at least forty years. That the hacenderos located in the southwestern section of Victorias and the public generally passed over it freely and that it was used for all purposes of transportation of farm produce, animals, etc. and by pedestrians as well as carromatas and other conveyances without break or interruption until two or three years ago when the defendants announced that the road was private and that those who wished to pass over it with sugar carts would be obliged to pay as toll of ten centavos-all-other vehicles, it appears, were permitted to pass free of charge. This arrangement seems to have existed during the years of 1911 and 1912 and part of 1913, the money being collected apparently from some hacenderos and not from others. There is some reason to believe from the evidence presented by defendants themselves that the practice of making these payments to hacienda 'Toreno' originated in an attempt to raise a fund for the repair of the road. There is no evidence that any other hacenderos between Nanca and Victorias or any other person made any attempt to close the road or to collect toll. On the contrary the road appears to have been repaired by the hacederos when it needed repairing and everyone used it on equal terms until the defendants in 1910 or 1911 interposed the objection that the road in dispute was private. This we think is a fair deduction from the evidence and although it is asserted that toll was collected at an earlier date by the late Leon Montinola, brother of the defendant Ruperto Montinola, there is no tangible evidence that this was so and all the circumstances are strongly indicative of the fact that toll has been paid only during the years of 1911, 1912, and part of 1913."The request presented by the assignment of error are in effect:(a) Is the Nanca-Victorias road at the point at which it traverses the Hacienda Toreno a public highway or not?(b) If it be held that the road in question is not a public highway, have plaintiff proven their acquisition of an easement of way over the Hacienda Toreno at the point traversed by the road in question?The trial judge, in holding that the road in question is public, bases his conclusion upon the fact, which he deems to have been proven, that the road has been in existence "from time immemorial," and had been "continuously used as a public road . . . and open to public as such for thirty or forty years . . . until . . . the defendants undertook to claim it as private and to collect toll for the passage of carts." (Bill of Exceptions, p. 56.) There is no doubt that for he past thirty or forty years a road has existed between the former site of the town of Victorias and the barrio of Nanca, of the municipality of Saravia, and that road crosses defendants' hacienda. It is also true that during this period the plaintiffs and their predecessors in the ownership of the hacienda now held by them have made use of this road for the purpose of going and coming from their haciendas to the town of Victorias; but the question is whether this use was limited to the plaintiffs, and their tenants and employees, or whether it was, as held by the lower court, a use enjoyed by the public in general. Plaintiffs produced only two witnesses, Segundo de Leon (stet. notes, pp. 21-22) and Eduardo Cuaycong, (stet. notes, pp. 27-33) to testify as regards the use of the Nanca-Victorias road. Several other witnesses testified on behalf of plaintiffs, but their testimony relates to the Dacuman-Toreno road, which is not involved in this appeal. We have carefully read the testimony of the witnesses Leon and Cuaycong, given upon their direct and cross examination, but we have been unable to find that either of them has testified that the road in question was ever used by the public in general. These witnesses testified with regard to the use of the road by the present and former owners and occupants of the estates of Bacayan, Esperanza, Alacaigan, Pusot, and Dolores for the transportation of the products of these estates to the town of Victorias, and of supplies and agricultural implements from Victorias to the haciendas, but neither of them testified expressly that any other use had been made of said road. Nevertheless, it may be reasonably inferred from the testimony of these witnesses that all persons having occasion to travel between Victorias and the haciendas of Bacayan, Esperanza, Alacaigan, Pusot, and Dolores, whether or not they were owners, tenants, or employees of said estates, made use of the road now in dispute, crossing the Hacienda Toreno, and to this limited extent it may be said that the public made use of the road, but there is nothing in the evidence to indicate that the so-called public use extended beyond this.Apart from the fact that there is no direct evidence to support the finding of the court concerning the general public use of the road in dispute, the record contains data strongly tending to show that when the complaint was filed plaintiffs did content that the road was a public highway, but merely contended that they had acquired by prescription an easement of way across the Hacienda Toreno. For example, the action is entitled an "action concerning a right of way." (Bill of Exceptions, pp. 64 and 65.) It is not averred in the complaint averred in the complaint that the road in question was used by the public. On the contrary, it is averred that it was used by the plaintiffs and their predecessors. The averment in paragraph 8 of the complaint that the plaintiff have no other "outlet to a public road" than that which they have been accustomed to use by going to the town of Victorias also shows that when they commenced this action they had in mind the provisions of articles 564, et seq. of the Civil Code, which relate to the method of establishing the compulsory easement of way. The owners of an existing easement, as well as those whose properties are adjacent with a public road, have no occasion to invoke these provisions of the Code, which relate to the creation of new rights, and not the enforcement of rights already in existence.It is true that in the opening statement made to the court, counsel for plaintiffs, who was not the same attorney by whom the complaint was signed, stated that plaintiffs contend that the road in question is public, but as no evidence was introduced tending to establish this contention concerning the Nanca-Victorias road, counsel for defendants had no occasion to object upon the ground that such testimony was not relevant to the averments of the complaint. No evidence was taken to indicate that at any time since the road in question has been in existence any part of the expense of its upkeep has been defrayed by the general government, the province, or the municipality. The trial judge said upon this subject:"It is also true whatever repairs were made on the road were made irregularly. The municipality of Victorias had no funds to devote to the construction and repair of road, and the upkeep of the road depending entirely therefore on the initiative of the persons who used it, was attended to only at such times as repairs were absolutely necessary." (Bill of Exceptions, p. 49.)The court also held that appears from the government grant issued in 1885 to the original owner of the hacienda adjacent to the Hacienda Toreno on its western boundary, that the Nanca-Victorias road at that time separated that estate from the Jalbuena Hacienda, and that these facts constitute "circumstantial evidence that the document to which the court refers, and we agree that the road in question existed in 1885; but we do not believe that the document in question proves that the said road was a public highway.Another circumstance established by the evidence, and which is of some importance in the determination of this issue, is that although the defendants closed the Nanca-Victorias road in the month of February, 1911, and since that time have collected toll from persons passing over it with carts loaded with sugar, including those belonging to several of the plaintiffs, nothing was done by them to prevent the continuation of this commenced. It is natural to assume that if plaintiffs and considered that the road in question was public, they would have protested immediately against the action of the defendants, and would have either commenced a civil action, as they subsequently did, or would have brought about a prosecution under section 16 of Act No. 1511.Upon the evidence taken and admission contained in the pleadings and those made during the course of the trial we consider that the following findings are warranted:1.The town of Victorias has always been the shipping point of the products of the Hacienda Toreno, and of the haciendas of appellees, as we place from which supplies were brought to those properties.2.For thirty or forty years before the commencement of the suit a wagon road, herein called the Nanca-Victorias road, has been in existence, connecting the haciendas of appellees with the town of Victorias, and this road traverses the property of defendants. Since the removal of the town of Victorias to a new site the Nanca-Victorias road has been used by appellees in travelling between their properties and the provincial road which crosses the Hacienda Toreno from east to west.3.No public funds have at any time been expanded on the construction or upkeep of the Nanca-Victorias road, but from time to time work has been done on it by the laborers employed by the present and former owners of the Hacienda Toreno and the haciendas owned by the appellees and their predecessors in title.4.The Nanca-Victorias wagon road, including that part of it which crosses the Hacienda Toreno, has for thirty-five or forty years been used by the appellees and their predecessors in title for the transportation, by the usual means, of the products of their estates to their shipping points in or near the town of Victorias, and the transportation to their estates of all supplies required by them, and has been used by all persons having occasion to travel to and from all or any of the estates now owned by the appellees.5.The use of the Nanca-Victorias road in the manner and by the persons above mentioned was permitted without objection by the owners of the Hacienda Toreno until the year 1911, when they closed it, and began charging a toll of 5 centavos for each cart which passed over the road, including carts belonging to the appellants, until restrained from continuing to do so by the preliminary injunction granted in this case.6.The Nanca-Victorias road constitutes the only outlet from the estates of appellants to the nearest public road which is the provincial road which crosses the Hacienda Toreno from east to west.Upon these facts the questions of law to be decided are:(a)Is the Nanca-Victorias road a public highway?(b)If the Nanca-Victorias road, or that part of it which crosses the Hacienda Toreno, is not a public highway, is it subject to a private easement of way in favor of the appellees?The defendants are the owners of the Hacienda Toreno under a Torrens title issued in accordance with the Land Registration Act, conferring to them its absolute ownership, subject only to the limitations of paragraph four of section 39 of said Act. It is admitted that there is no annotation on the certificate of title regarding the road here in question, either as a "public road" or a a "private way established by law" and, therefore, the questions presented by this appeal are to be determined precisely as they would be had the Hacienda Toreno not been brought under the operation of the Land Registration Act. The plaintiffs being the owners of the property in question, the presumption of law is that it is free from any lien or encumbrance whatever, and the burden therefore rests upon plaintiffs to establish the contrary. As this court said in the case of Fabie vs. Lichauco and the children of Francisco L. Roxas (11 Phil. Rep., 14):"It is a settled doctrine of law that a property is assumed to be free from all encumbrance unless the contrary is proved."There is admittedly no evidence to show that the land occupied by the road here in question was at any time conveyed to the general government or any of its political subdivisions by the presents or any of the former owners of the Hacienda Toreno. There is no evidence, even remotely, tending to show that the road existed prior to the time when the property now known as the Hacienda Toreno passed from the State into private ownership. The record fails to disclose any evidence whatever tending to show that the Government has at any time asserted any right or title in or to the land occupied by the road, or that it has incurred any expense whatever in its upkeep or construction. The Civil Code defines as public roads those which are constructed by the State (art. 339), and a provincial and town roads those " the expense of which is borne by such towns or provinces." (Civil Code, art. 344.) While it is not contended that this definition is exclusive, it does show that during the Spanish regime, under normal conditions, roads which were public were maintained at the public expense, and that the fact that at no time was any expense incurred by the Government with respect to the road here in question tends strongly to support the contention of the defendants that it is private way.During the Spanish regime the law required each able bodied citizen not within one of the exempted classes to work a certain number of days in each year, his labor to be devoted to "services of general utility" to the municipality of his residence. (Royal Decree of July 11, 1883, Art. 5.) Under this Decree and the Regulations for its enforcement (Berriz, vol. 11, 258) the greater part of the work on the public roads of the Islands was accomplished. Had the road here in question been a public way, it is reasonable to assume that thepolistasof the town of Victorias would have been employed in maintaining it. It is most significant that no mention is made in the testimony of the plaintiffs' witnesses of any work of this character having been done on the road at any time, particularly in view of the fact that their attention was drawn to this point. (Stet. notes, pp. 8, 10, 11, 12, 13, and 14.)The evidence shows that the repairs were made by the owners of the estates benefited by the road, and by their laborers, as a purely voluntary act for their own convenience and interest. There being no evidence of a direct grant to the government of the land occupied by the road in question or that any Government funds or labor were expended upon it, the question presents itself whether the use to which the road has been put was such as to justify the conclusion of the lower court that it has become public property. There being no evidence that the original use of the road by plaintiffs' predecessors was based upon any express grant of the fee to the road or of an easement of way, or that it began under the assertion of a right on their part, the presumption must be that the origin of the use was the mere tolerance or license of the owners of the estates affected.This being so, has that merely permissive use been converted into a title vested in the public at large, or in the plaintiffs by reason of their ownership of the land beneficially affected by the use?Had it been shown that the road had been maintained at the public expense, with the acquiescence of the owners of the estates crossed by it, this would indicate such adverse possession by the government as in course of time would ripen into title or warrant the presumption of a grant or of a dedication. But in this case there is no such evidence, and the claims of plaintiffs, whether regarded as members of the public asserting a right to use the road as such, or as persons claiming a private easement of way over the land of another must be regarded as resting upon the mere fact of user.If the owner of a tract of land, to accommodate his neighbors or the public in general, permits them to across his property, it is reasonable to suppose that it is not his intention, in so doing, to divest himself of the ownership of the land so used, or to establish an easement upon it, and that the persons to whom such permission, tacit or express, is granted, do not regard their privilege of use as being based upon anything more than the mere tolerance of the owner. Clearly, such permissive use is in its inception based upon an essentially revocable license. If the use continues for a long period of time, no change being made in the relations of the parties by any express or implied agreement, does the owner of the property affected lose his right of revocation? Or, putting the same question in another form, does the mere permissive use ripen into title by prescription?It is a fundamental principle of the law in this jurisdiction concerning the possession of real property that such possession is not affected by acts of a possessory character which are "merely tolerated" by the possessor, or which are due to his license (Civil Code, arts. 444 and 1942). This principle is applicable not only with respect to the prescription of the dominium as a whole, but, to the prescription of right inrem. In the case of Cortes vs. Palanca Yu-Tibo (2 Phil. Rep., 24, 38), the Court said:"The provision of article 1942 of the Civil Code to the effect that acts which are merely tolerated produce no effect with respect to possession is applicable as much to the prescription of real rights as to the prescription of the fee, it being a glaring and self-evident error to affirm the contrary, as does the appellant in his motion papers. Possession is the fundamental basis of the prescription. Without it no kind of prescription is possible, not even the extraordinary. Consequently, if acts of mere tolerance produce no effect respect to possession, at that article provides, in conformity with article 444 of the same Code, it is evident that they can produce no effect with respect to prescription, whether the prescriptive acquisition be of a fee or of real rights, for the same reason holds in one and the other case; that is, that there has been no true possession in the legal sense of the word." (See also Ayala de Roxas vs. Maglonso, 8 Phil. Rep., 745; Municipality of Caceres vs. Director of Lands and Roman Catholic Bishop of Nueva Caceres, 24 Phil. Rep., 485.)Possession, under the Civil Code, to constitute the foundation of a prescriptive right, must be possession under claim of title (en concepto de dueo), to use the common law equivalent of the term, it must beadverse. Acts of possessory character performed by one who holds by mere tolerance of the owner are clearly noten concepto de dueo, and such possessory acts, no matter how long so continued, do not start the running of the period of prescription.A similar question was presented in the case of the Roman Catholic Archbishop of Manila vs. Roxas (22 Phil. Rep., 450), in which case it appeared that Roxas, the owner of theHacienda de San Pedro Macati,claimed a right of way across the property of the church to Calle Tejeron, a public street of the town of San Pedro Macati. The proof showed that the road in question had been used by the tenants of theHacienda de San Pedro Macatifor the passage of carts in coming and leaving the hacienda "from time immemorial," and further that the road had been used for time out of mind, not only by the tenants of the hacienda but by many other people in going and coming from a church half-way between the boundary line of the hacienda and Calle Tejeron. The court held that the facts did not give rise to a perspective right of easement in favor of the owner of the hacienda, upon the ground that such use "is to be regarded as permissive and under an implied license, and not adverse. Such a use is not inconsistent with the only use which the proprietor thought fit to make of the land, and until the appellee thinks proper to enclose it, such use is not adverse and will not preclude it from enclosing the land when other views of its interest render it proper to do so. And though an adjacent proprietor may make such use of the open land more frequently than another, yet the same rule will apply unless there be some decisive act indicating aseparate and exclusive use under a claim of right.A different doctrine would have a tendency to destroy all neighborhood accommodations in the way of travel; for if it were once understood that a man, by allowing his neighbor to pass through his farm without objection over the pass-away which he used himself, would thereby, after the lapse of time, confer a right on such neighbor to require the pass-way to be kept open for his benefit and enjoyment, a prohibition against all such travel would immediately ensue."The decisions of the supreme court of Louisiana, a State whose jurisdiction is based, as is our own, upon the Roman Law, and whose Civil Code is taken, as is our own, very largely from the Code of Napoleon, are particularly persuasive in matters of this character. In the case of Torres vs. Fargoust (37 La. Ann., 497), cited by appellants in their brief, in which the issues were very similar to those of the present case, the court held that "The mere fact that for thirty or forty years the public was permitted to pass over this ground would not of itself constitute the place a locus publicus . . . dedication must be shown by evidence so conclusive as to exclude all idea of private ownership; . . . such dedication can not be inferred from mere user alone; . . . no one is presumed to give away his property. The burden is on him who avers a divestiture of ownership to prove it clearly.'We are, therefore, of the opinion, and so hold, that upon the facts established by the evidence it does not appear that the road in question is a public road or way. We are also of the opinion that plaintiff have failed to show that they have acquired by prescription a private right of passage over the lands of defendants. The supreme court of Spain has decided that under the law in force before the enactment of decided that under the law in force before the enactment of the Civil Code, the easement of way was discontinuous, and that while such an easement might be acquired by prescription, it must be used in good faith, in the belief of the existence of the right, and such user must have been continuous from time immemorial. (Judgment of December 15, 1882.) In the appealed decision the court below says that the plaintiff and their predecessors made use of the road in question "from time immemorial," but there is no evidence whatever in the record to support this finding, although it is true that the evidence shows theexistenceof the road and its use by the plaintiffs and their predecessors for thirty-five or forty years. Speaking of the evidence required under the present Code of Civil Procedure to show immemorial use of an easement, this court said in the case of Ayala de Roxas vs. Case (8 Phil. Rep., 197, 198):"The thirdPartidain title 31, law 15 . . . says that discontinuous servitudes . . . must be proved by usage or a term so long that men can not remember its commencement. . . . In many judgments the supreme court of Spain has refused to accept proof of any definite number of years as a satisfaction of this requirement of the law . . . We are of the opinion that in order to establish a right of prescription [title of prescription based upon use from time immemorial] something more is required than the memory of living witnesses. Whether this something should be the declaration of persons long dead, repeated by those who testify, as exacted by the Spanish law, or should be the common reputation of ownership recognized by the Code of Procedure, it is unnecessary for us to decide. On either theory the appellant has filed in this proof . . . "The same thing may be said in this case. Witnesses has testified that they have known the road for a certain period of years, beginning at a time prior to the enactment of the Civil Code, but no evidence has been made to prove immemorial use by either of the means of proof mentioned in this decision cited, nor is immemorial user averred in the complaint as the basis of the right. It is evident, therefore, that no vested right by user from immemorial had been acquired by plaintiffs at the time the Civil Code took effect. Under that Code (art. 539) no discontinuous easement could be acquired by prescription in any event. Assuming, without deciding, that this rule has been changed by the provisions of the present Code of Civil Procedure relating to prescription, and that since its enactment discontinuous easement may be acquired by prescription, it is clear that this would not avail plaintiffs. The Code of Civil Procedure went into effect on October 1, 1901. The term of prescription for the acquisition of rights in real estate is fixed by the Code (sec. 41) at ten years. The evidence shows that in February, 1911, before the expiration of the term of ten years since the time the Code of Civil Procedure took effect, the defendants interrupted the use of the road by plaintiffs by constructing and maintaining a toll gate on it and collecting toll from persons making use of it with carts and continued preliminary injunction by the trial court in December, 1912. Our conclusion is, therefore, that plaintiffs have not acquired by prescription a right to an easement of way over the defendants' property; that their use of the Nanca-Victorias road across the Hacienda Toreno was due merely to the tacit license and tolerance of the defendants and their predecessors in title; that the license was essentially revocable; and that, therefore, the defendants were within their rights when they closed the road in 1911.While in the allegation from plaintiffs' complaint it might be inferred that it was their purpose to seek to impose upon defendants the easement to which arts. 564 et seq. of the Civil Code relate, that purpose was evidently abandoned, and the case was tried upon a wholly different theory. Proof was offered to show that the right of passage across defendants' land is necessary to enable plaintiffs to get their products to market, but there was no offer on their part to pay defendants the indemnity required by section 564.For the reasons stated the judgment of the court below is reversed, the injunction issued against defendants is dissolved, and the action is dismissed. No costs will be allowed on this appeal. So ordered.Arellano, C.J., Torres, Araullo, Street, Malcolm,andAvancea, JJ.,concur.JOHNSON, J., dissents.|||(Cuaycong v. Benedicto, G.R. No. 9989, [March 13, 1918], 37 PHIL 781-797)

EN BANC[G.R. No.23810. December 18, 1926.]CATALINO VALDERRAMA,plaintiff-appellee,vs. THE NORTH NEGROS SUGAR CO., INC.,defendant-appellant.[G.R. No. 23811. December 18, 1925.]EMILIO RODRIGUEZ,plaintiff-appellee,vs.THE NORTH NEGROS SUGAR CO., INC.,defendant-appellant.[G.R. No. 23812. December 18, 1925.]SANTOS URRA, ET AL.,plaintiffs-appellees,vs.THE NORTH NEGROS SUGAR CO., INC.,defendant-appellant.

Ross, Lawrence & SelphandAntonio T. Carrascoso, Jr.,for appellant.Camus & Delgadofor appellees.

SYLLABUS

1.CONTRACTS; INTERPRETATION. In the determination of the scope of a contract, an interpretation which is contrary to the object of the contract shall not be admitted.2.ID.; ID.; EASEMENT OF WAY. In a contract establishing an easement of way in favor of a sugar company for the construction of a railroad for the transportation of sugar cane from the servient estates to the mill of said company, it is contrary to the nature of the contract to pretend that only sugar cane grown in the servient estates can be transported on said railroad, because it is a well-settled rule that things serve their owner by reason of ownership and not by reason of easement; that is to say, that an easement hang been established in favor of the sugar company, the owners of the servient estates cannot limit its use to the transportation of their cane, there being no express stipulation to that effect, for then there would be no need of the easement, since they could use their estates as owners thereof.3.ID.; ID.; ALTERATION OF EASEMENT. In the case of an easement of way for the construction of a railroad, the prohibition of the law (art. 543 of the Civil Code) against alteration of easement, making it more burdensome, is not violated by causing to pass thereon wagons carrying goods pertaining to persons who are not the owners of the servient estates and at all times the per son entitled to the easement may please, for in such a case the easement continues to be the same. Said legal prohibition has reference to that case wherein in extending the line or repairing or using the same, a larger area of land is occupied, or excavations or materials deposited outside of the area occupied by the easement.

D E C I S I O N

VILLAMOR,Jp:

As appears from the record, on November 17, 1916, several hacienda owners of Manapla, Occidental Negros, entered into a contract with Miguel J. Osorio, known as milling contract, wherein Osorio agreed to install in Manapla a sugar central of a minimum capacity of 300 tons, for grinding and milling all the sugar cane to be grown by thehaciendaowners, who in turn bound themselves to furnish the central with all the cane they might produce in their estates for thirty years from the execution of the contract, all in accordance with the conditions specified therein.Later on, the defendant North Negros Sugar Co., Inc., acquired the rights and interest of Miguel J. Osorio in the milling contract aforesaid.Two years thereafter, that is to say, on January 29,1919, Catalino Valderrama (case No.23810) and on February 1st of the same year, Emilio Rodriguez (case No. 23811) and Santos Urra, Ignacio Benito Huarte, Adolfo Huarte and Pedro Auzmendi (case No. 23812) made with the appellant other milling contracts identical with the first one of November 17, 1916, with some new conditions which are specified in detail in the aforesaid documents Exhibits A and 1. Santos Urra thereafter transferred to Pedro Auzmendi, and the latter to Lorenzo Echarri, their interest in the milling contract executed by them.In view of the fact that thehaciendaowners, who were up to that time customers of the central, could not furnish sufficient cane for milling, as required by the capacity of said central, the defendant made other milling contracts with varioushaciendaowners of Cadiz, Occidental Negros in order to obtain sufficient cane to sustain the central; and this gave rise to the plaintiffs filing their complaint, alleging that the easement of way, which each of them has established in his respectivehacienda, was only for the transportation through eachhaciendaof the sugar cane of the owner thereof, while the defendant maintains that it had the right to transport to its central upon the railroad passing through thehaciendasof the plaintiffs, not only the sugar cane harvested in said haciendas, but also that of thehaciendaowners of Cadiz, Occidental Negros.The plaintiffs, in separate complaints, prayed the Court of First Instance of Occidental Negros to pronounce judgment, holding that the defendant had no right, under the easement or otherwise, to cause its locomotives and wagons to run across the estates of the plaintiffs for the purpose of transporting sugar cane of any agriculturist of Cadiz, Occidental Negros.The defendant answered the amended complaints, admitting some allegations thereof and denying others. And as special defense, it alleged that the plaintiffs respectively granted the defendant, for the period of fifty years from the date of the aforesaid contracts, an easement of way 7 meters wide upon the lands of the plaintiffs for the construction and operation of a railroad for the transportation of sugar cane; that said easement of way was established without any restriction whatsoever, as regards the ownership of the cane to be transported over the said railroad; that said contract was then in full force and effect and had never been annulled or modified.After hearing the three cases, the trial court entered one single judgment for all of them, holding that the defendant had no right to pass through the lands of the plaintiffs described in their amended complaints for the transportation of sugar cane not grown from any of thehaciendasof the plaintiffs. From this judgment, the defendant appealed.In view of the similarity of the facts and questions raised in the three complaints, they will herein be considered jointly, as was done by the trial court.The parties agree that the only question herein involved is as to the extent of the easement of way which the plaintiffs have established in their respective haciendas in favor of the defendant, and therefore it is important to know the terms in which such easement of way was established.In the contract executed by the plaintiff Valderrama with the defendant on January 29, 1919, there appears: "6th. That in order to have the obligations herein entered into by Mr. Valderrama duly registered, in regard to the rural estates belonging to him and which are described hereinafter,an easement of way 7 meters wide and for the period of 50 years from the date hereof is hereby created in favor of the 'North Negros Sugar Co., Inc.,' upon his property hereinafter described, at such place as said corporation may see fit for the construction of a railroad."And in the contract of the plaintiff Rodriguez of February 1, 1919, there also appears: "6th. That in order to have the obligations herein entered into by Mr. Emilio Rodriguez duly registered, in regard to the rural estates belonging to him which are hereinafter described,an easement of way 7 meters wide and for the period of 50 years from the date hereof is hereby established by said Mr. Emilio Rodriguez in favor of the 'North Negros Sugar Co., Inc.,' upon his estate aforementioned, at such place as said corporation ~y see fit for the construction of a railroad."And lastly in the contract of Santos Urra and others of February 1, 1919, there likewise appears: "7th. That in order to have the obligationg herein entered into by Santos Urra, Ignacio Benito Huarte, Adolfo Huarte and Pedro Auzmendi duly registered, in regard to their estate hereinafter described, an easement ofway 7 meters wide and for the period of 50 years from the date hereof is hereby established in favor of the 'North Negros Sugar Co., Inc.,' upon their estate hereinafter described, at such place as said corporation may see fit for the construction of a railroad."As may be seen, the question raised depends upon the interpretation to be given to the clause of the contracts of the plaintiffs above quoted. The plaintiffs allege that the aforesaid clause is ambiguous, and under the first exception of section 285 of the Code of Civil Procedure, they have the right to introduce extraneous evidence to explain the true intent of the parties. And it is ambiguous, according to them, because it may be applied to the transportation of the cane of the plaintiffs or of other producers, which is contrary to the intent of the contracting parties. If the above quoted clause is ambiguous, the plaintiffs have the right to introduce circumstantial evidence to explain the true intent of the parties, but in our opinion said clause is clear enough in its terms to express what the parties have intended to agree upon. Had the clause mentioned only an "easement of way," there might be a doubt as to whether or not the easement of way is for pedestrians, horsemen or carriages. But when the clause says: "easement of way 7 meters wide for the period of 50 years for the construction of a railroad," there can be no doubt about what the contracting parties have agreed upon, to wit, that the plaintiffs have created upon their respectivehaciendasat a suitable place an easement of way 7 meters wide and for a period of fifty years, in order to enable the defendant to build and maintain a railroad for the transportation of sugar cane to the central. It is clear that the cane of the plaintiffs was to be transported upon the railroad to the central; but to limit the use of the road exclusively to the cane of the plaintiffs and within their respectivehaciendaswould make the contract in question ineffective, except as to thehaciendawhich is contiguous or nearest to the central.The object of such a milling contract, from which arises the easement in question, is undoubtedly to obtain mutual benefit to the producers of sugar cane and the corporation putting up the central. It is only by taking this principal idea into account that it may be conceived why the parties had come to an agreement to assume such obligations as are set forth in the milling contract. But the contract could not produce any benefit to the parties, if the explanation given by the plaintiffs would be admitted, as to their intention in creating the aforesaid easement of way upon their respectivehaciendas, that it was only in favor of their respectivehaciendas. Such an explanation is inadmissible because it is contrary to the object of the milling contract.It is against the nature of the easement to pretend that it was established in favor of the servient estates, because it is a well settled rule that things serve their owner by reason of ownership and not by reason of easement.This is a case of an easement for the benefit of a corporation, voluntarily created by the plaintiffs upon their respective estates for the construction of a railroad connecting said estates with the central of the defendant. Once the road is constructed, the easement is apparent because it is continuously exposed to view by the rails which reveal the use and enjoyment of said easement. It is evident, as above stated, that the cane of the plaintiffs is to be transported to the central by means of wagons passing upon the railroad; but as the easement was created for the benefit of the corporation, owner of the central, it may cause its wagons to pass upon the road as many times as it may deem fit, according to the needs of the central. If the plaintiffs do not produce sufficient cane to cover the capacity of the central, it would be unjust to impose upon the defendant corporation the burden of maintaining a central, prohibiting it to obtain from another source sufficient cane with which to maintain its business; this is specially true here, because in the milling contract with the plaintiffs, there is nothing to prohibit the defendant from making milling contracts with other planters, and obtain in that way all the cane necessary to cover the capacity of the central.Another reason advanced by the appellees in support of their theory is that by transporting upon the road, through the servient estates, the cane of the planters of Cadiz, it would alter the easement, making it more burdensome. It is true that the owner of the dominant estate, in making on the servient estate the necessary works for the use and preservation of the easement, cannot alter it, nor make it more burdensome (art. 543 of the Civil Code); but this does not mean that the defendant cannot transport in the wagons passing upon the railroad other cane than that of the plaintiffs. what is prohibited by the legal provision above cited is that the defendant, in extending the road or in repairing it, should occupy a greater area of land of the servient estates, or deposit excavations or building materials outside of the area of 7 meters, because in the first case, the easement will be altered, and in the second it would become more burdensome. But nothing of the kind happens when the defendant transports on the railroad, crossing the servient estates, the cane of the planters of Cadiz; the railroad continues to occupy the same area on the servient estates, and the encumbrance resulting from the easement continues to be the same, whether the tractors traverse the line 10, 20 or 30 times-a day transporting cane for the central.Furthermore, the record shows a circumstance indicating that at the time of the execution of the milling contracts above referred to, there was no intention on the part of the contracting parties to limit the use of the railroad to the transportation of cane grown by the plaintiffs in their respectivehaciendas, and that is because, while the duration of the milling contracts is fixed at thirty years, that of the easement is at fifty. So that if at the end of thirty years the plaintiffs or their successors should no longer desire to furnish canes for milling in the central of the defendant, the latter shall still have the right to the easement for the remaining period, but without transporting on the railroad any cane for the central. An interpretation of the clause in question leading to such a result is untenable.For the foregoing, we are of the opinion that the trial court erred in finding that the appellant could not transport on its railroad passing through the haciendas of the appellees, where it has an easement of way established in its favor, the cane grown in thehaciendasof the producers of Cadiz, Occidental Negros, to be milled in the central of the appellant. And, therefore, the judgment appealed from must be reversed and the appellant absolved, as it is hereby absolved, from the complaint, without special pronouncement as to costs. So ordered.Avancea, C.J., Street, Malcolm, Ostrand, Johns, RomualdezandVilla-Real, JJ.,concur.|||(Valderrama v. The North Negros Sugar Co., Inc., G.R. No. 23810, 23811, 23812, [December 18, 1926])

EN BANC[G.R. No.42334. October 31, 1936.]

NORTH NEGROS SUGAR CO., INC.,plaintiff-appellant,vs. SERAFIN HIDALGO,defendant-appellee.

Hilado & Hiladofor appellant.Simeon Bitangafor appellee.Ross, Lawrence, Selph & CarrascosoandDeWitt, Perkins & Ponce Enrileas amici curiae.

SYLLABUS

1.INJUNCTION; REMEDY SOUGHT AS PRINCIPAL RELIEF; REQUISITES. The plaintiff prays in its complaint against the defendant that an injunction be issued, restraining the defendant from entering or passing through the properties of the plaintiff, specially through the "mill site" of plaintiff's sugar central. The injunction applied for, constitutes, unlike the auxiliary and subordinate remedy that it ordinarily is, the principal remedy itself. The relief should only be granted, therefore, after it has been established not only that the right sought to be protected exists, but also that the acts against which the injunction is to be directed are violative of said right.2.ID.; ID.; ID. "The existence of a right violated is a prerequisite to the granting of an injunction. . . . A permanent injunction should not be awarded except in a clear case and to prevent irreparable injury." (32 C.J., 34-36.) "A court of chancery will not entertain a bill to enforce a mere valueless abstract right, and the court will, on its own motion, raise the point for its own protection." (Dunnomvs.Thomsen, 58 Ill. App., 390.) None of these requisites is present in the instant case. There has been a failure to establish either the existence of a clear and positive right of the plaintiff specially calling for judicial protection through an extraordinary writ of the kind applied for, or that the defendant has committed or attempts to commit any act which has endangered or tends to endanger the existence of said right, or has injured or threatens to injure the same.3.ID.; ID.; PRIVATE ROAD OPEN TO PUBLIC USE. When a private road has been thrown open to public use, no action for trespass is maintainable against any person who desires to make use thereof; consequently, an injunction suit likewise does not lie. "Private roads, except where laid out under constitutional provisions authorizing the condemnation of private property for a private use, are public roads in the sense that they are open to all who see fit to use them, and it is immaterial that the road is subject to gates and bars, or that it is merely acul de sac. Being thus considered as a public road, it necessarily follows thatthe owner of the land through which the road is laid out cannot maintain an action of trespass against any person using it." (50 C.J., pp. 397, 398.) ". . . Where it is clear that the complainant does not have the right that he claims, he is not entitled to an injunction, either temporary or perpetual, to prevent a violation of such supposed right. . . . An injunction will not issue to protect a right notin esseand which may never arise or to restrain an act which does not give rise to a cause of action, . . .." (32 C.J., pp. 34, 35.)4.ID.; ID.; ID. Plaintiff states in the sixth paragraph of its amended complaint: "6. That, in addition, the plaintiff, in the exercise of its property rights, does not want to allow the entry of the defendant in any part of its estate above-mentioned in order to avert any friction or ill-feeling against him." The plaintiff, in petitioning the courts for an injunction to avert "friction or ill- feeling" against the defendant, invoking its sacred property rights, attempts to intrust to them a mission at once beyond those conferred upon them by the Constitution and the laws, and unbecoming of their dignity and decorum.5.ID.; ID.; FAILURE TO ESTABLISH DAMAGE AGAINST WHICH THE INJUNCTION IS INVOKED. Plaintiff has not established the existence, real or probable, of the alleged damage against which the injunction is invoked. Plaintiff's admission in its brief (p. 15) that it has not been established that the defendant has broughttubato the "mill site," or has sold it within its property, is fatal to the present action charging the defendant with said acts.6.ID.; ID.; PRINCIPLE OF EQUITY. The well-known principle of equity that "he also comes to equity must come with clean hands" bars the granting of the remedy applied for by the plaintiff. Plaintiff, in order to obtain a preliminary injunction, trifled with the good faith of the lower court by knowingly making untrue allegations on matters important and essential to its cause of action. Consequently, it did not come to court with clean hands. "Coming into equity with clean hands. The maxim that he who comes into equity must come with clean hand is, of course, applicable in suits to obtain relief by injunction. Injunction will be denied even though complainant shows that he has a right and would otherwise be entitled to the remedy in case it appears that he himself acted dishonestly, fraudulently or illegally in respect to the matter in which redress is sought, or where he has encouraged, invited or contributed to the injury sought to be enjoined. However, the general principle that he who comes into equity must come with clean hands applies only to plaintiff's conduct in relation to the very matter in litigation. The want of equity that will bar a right to equitable relief for coming into court with unclean hands must be so directly connected with the matter in litigation that it has affected the equitable relations of the parties arising out of the transaction in question." (32 C.J., pp. 67, 68.)7.ID.; ID.; JUDICIAL DISCRETION. The exercise of discretion by trial courts in matters injunctive should not be interfered with by appellate courts except in cases of manifest abuse. ". . . The court which is to exercise the discretion is the trial court and not the appellate court. The action of the court may be reviewed on appeal or error in case of a clear abuse of discretion, but not otherwise, and ordinarily mandamus will not lie to control such discretion." (32 C.J., sec. 11, p. 33.) True, the rule has particular application to preliminary injunctions, but the rule should not be otherwise with respect to permanent injunctions especially where, as in this case, set the same aside in its final decision on a careful review of the evidence.8.ID.; ID.; VOLUNTARY EASEMENT. This is a case of an easement of way voluntarily constituted in favor of a community. (Civil Code, arts. 531 and 594.) There is nothing in the constitution of this easement in violation of law or public order, except perhaps that the right to open roads and charge passage fees therefor is the State's by right of sovereignty and may not be taken over by a private individual without the requisite permit. This, however, would effect the right of the plaintiff to charge tolls, but not that of the defendant or of any other person to make use of the easement.9.ID.; ID.; ID. Voluntary easements under article 594 are not contractual in nature; they constitute the act of the owner. If he exacts any condition, like the payment of a certain indemnity for the use of the easement, any person who is willing to pay it may make use of the easement. If the contention be made that a contract is necessary, it may be stated that a contract exists from the time all those who desire to make use of the easement are disposed to pay the required indemnity.10.ID.; ID.; ID. The plaintiff contends that the easement of way is intermittent in nature and can only be acquired by virtue of a title under article 539. The defendant, however, does not lay claim to it by prescription. The title in this case consists in the fact that the plaintiff has offered the use of this road to the general public upon payment of a certain sum as passage fee in the case of motor vehicles.11.ID.; ID.; ID.; CASES DISTINGUISHED. The cases of Roman Catholic Archbishop of Manilavs.Roxas (22 Phil., 450), and Cuaycongvs.Benedicto (37 Phil., 781), are not controlling, as there the attempt was to establish that the right to an easement of way had been acquired by prescription. Here defendant's contention is, that while the road in question remains open to the public, he has a right to its use upon paying the passage fees required by the plaintiff. Indeed the latter may close it at its pleasure, as no period had been fixed when the easement was voluntarily constituted, but while the road is thrown open, the plaintiff may not capriciously exclude the defendant from its use.12.ID.; ID.; ID.; PUBLIC INTEREST. Having been devoted by the plaintiff to the use of the public in general, upon paying the passage fees required in the case of motor vehicles, the road in question is charged with a public interest, and while so devoted, the plaintiff may not establish discriminatory exceptions against any private person. "When private property is affected with a public interest, it ceases to bejuris privati only; as if a man set out a street in new building on his own land, it is now no longer bare private interest, but is affected by a public interest." (Lord Chief Justice Hale in his treatise "De Portibus Maris," quoted with approval in Munnvs.Illinois, 94 U.S., 113 [1876], and in Nebbiavs.New York, 291 U.S., 502 [1934].)13.ID.; ID.; ID.; PUBLIC UTILITY. The circumstance that the road in question does not properly fall within the definition of a public utility provided inAct No. 3108, does not divest it of this character: " . . . whether or not a given business, industry, or service is a public utility does not depend upon legislative definition, but upon the nature of the business or service rendered, and an attempt to declare a company or enterprise to be a public utility, where it is inherently not such, is, by virtue of the guaranties of the federal constitution, void whether it interferes with private rights of property or contract. So a legislature cannot by mere flat or regulatory order convert a private business or enterprise into a public utility, and the question whether or not a particular company or service is a public utility is a judicial one, and must be determined as such by a court of competent jurisdiction; . . .." (51 C.J., sec. 3, p. 5.)14.ID.; ID.; ID. The road in question being a public utility, or, to be more exact, a private property affected with a public interest, it is not lawful to make arbitrary exceptions with respect to its use and enjoyment. "Duty to Serve Without Discrimination. A public utility is obliged by the nature of its business to furnish its service or commodity to the general public, or that part of the public which it has undertaken to serve, without arbitrary discrimination, and it must, to the extent of its capacity, serve all who apply, on equal terms and without distinction, so far as they are in the same class and similarly situated. Accordingly, a utility must act toward all members of the public impartially, and treat all alike; and it cannot arbitrarily select the persons for whom it will perform its service or furnish its commodity, nor refuse to one a favor or privilege it has extended to another, since the term 'public utility' precludes the idea of service which is private in its nature and is not to be obtained by the public. Such duties arise from the public nature of a utility, and statutes providing affirmatively therefor are merely declaratory of the common law." (51 C.J., sec. 16, p.7.)15.ID.; ID.; ID. The circumstance that the plaintiff is not the holder of a franchise or of a certificate of public convenience, or that it is a company devoted principally to the manufacture of sugar and not to the business of public service, or that the State has not as yet assumed control or jurisdiction over the operation of the road in question by the plaintiff, does not preclude the idea that the said road is a public utility.16.ID.; ID.; ID. "When private property is devoted to public use in the business of a public utility, certain reciprocal rights and duties are raised by implication of law between the utility and the public it undertakes to serve, and no contract between them is necessary to give rise thereto. . . ." (51 C.J., sec. 12, p. 6.)

D E C I S I O N

RECTO,Jp:

On October 12, 1933, the plaintiff filed before the Court of First Instance of Occidental Negros a complaint praying, upon the allegations contained therein, that an injunction be issued, restraining the defendant from entering or passing through the properties of the plaintiff, specially through the "mill site" of plaintiffs sugar central.It appears that the plaintiff is the owner of a site in which is located its sugar central, with its factory building and residence for its employees and laborers, known as the "mill site." It also owns the adjoining sugar plantation known as Hacienda "Begoa." Across its properties the plaintiff constructed a road connecting the "mill site" with the provincial highway. Through this road plaintiff allowed and still allows vehicles to pass upon payment of a tool charge of P0.15 for each truck or automobile. Pedestrians are allowed free passage through it.Immediately adjoining the above-mentioned "mill site" of the plaintiff is the hacienda of Luciano Aguirre, known as Hacienda "Sagay," where the defendant has a billiard hall and a tuba saloon. Like other people in the about the place, defendant used to pass through the said road of the plaintiff, because it was his only means of access to the Hacienda "Sagay" where he runs his billiard hall andtubasaloon. Later on, by order of the plaintiff, every time that the defendant passed driving his automobile with a cargo of tuba plaintiff's gatekeeper would stop him and prevent him from passing through said road. Defendant in such cases merely deviated from said road and continued on his way to the Hacienda "Sagay" across the fields of Hacienda "Begoa," likewise belonging to the plaintiff.The alleged conveyance of tuba to plaintiff's "mill site" or the sale thereof within its property has not been established by the evidence adduced in this case. This the plaintiff admits in its brief (p. 15). Neither is there any evidence to show that the defendant actually created disturbance in plaintiff's properties, including its "mill site." Other pertinent facts will be stated in appropriate places in this decision.A.First of all it may be stated that in the case at bar the injunction applied for, constitutes, unlike the auxiliary and subordinate remedy that it ordinarily is, the principal remedy itself. The relief should only be granted, therefore, after it has been established not only that the right sought to be protected exists, but also that the acts against which the injunction is to be directed are violative of said right."SEC. 164.Circumstances under which a preliminary injunction may be granted. A preliminary injunction may be granted when it is established, in the manner hereinafter provided, to the satisfaction of the judge granting it:"1.That the plaintiff is entitled to the relief demanded and such relief, or any part thereof, consists in restraining the commission or continuance of the acts complained of either for a limited period or perpetually;"2.That the commission or continuance of some act complained of during the litigation would probably work injustice to the plaintiff;"3.That the defendant is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act probably in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual." (Code of Civil Procedure.)"In order that, at the final trial of a case, an injunction may issue perpetually prohibiting the repetition or continuation of an act complained of, it is indispensable that it shall have been proven at trial that he who seeks such a remedy is entitled to ask for it; if he is not, his request must be denied." (Tumacdervs.Nueva, 16 Phil., 513.)"The extraordinary remedy of injunction will not be granted to prevent or remove a nuisance unless there is a strong case of pressing necessity, and not because of a trifling discomfort." (De Ayalavs.Barretto, 33 Phil., 538.)"The existence of a right violated is a prerequisite to the granting of an injunction. . . . A permanent injunction should not be awarded except in a clear case and to prevent irreparable injury." (32 C.J., 34-36.)"A court of chancery will not entertain a bill to enforce a mere valueless abstract right, and the court will, on its own motion, raise the point for its own protection." (Dunnomvs.Thomsen, 58 Ill. App., 390.)None of these requisites is present in the instant case. There has been a failure to establish either the existence of a clear and positive right of the plaintiff specially calling for judicial protection through an extraordinary writ of the kind applied for, or that the defendant has committed or attempts to commit any act which has endangered or tends to endanger the existence of said right, or has injured or threatens to injure the same.In obtainingex-partea preliminary injunction in the lower court, the plaintiff made under oath in its complaint the following allegations, which later turned out to be untrue, or, at least, beyond the capacity of plaintiff to prove:"3.That on sundry occasions heretofore, the defendant used to go to the said 'mill site' of the plaintiff, passing over the latter's private roads, and there caused trouble among the peaceful people of the place."4.That the plaintiff, through its representatives, has prohibited the defendant from entering its private property, but this notwithstanding, the defendant still persists in repeating his incursions into the said private roads and 'mill site' of the plaintiff, disturbing public order and molesting plaintiff's employees and their families."The court, in its order granting the preliminary injunction, said:"Considering the said complaint and the sworn statement of its correctness filed by plaintiff's attorneys1and it appearing satisfactorily that the issuance of a preliminary injunction is in order because of the sufficiency of the grounds alleged, upon the filing of a bond, it is hereby, etc. . . .."After obtaining the preliminary injunction, the plaintiff amended its complaint by eliminating therefrom those very allegations upon which the court granted the temporary remedy, namely, the acts imputed to the defendant "of causing trouble among the peaceful people of plaintiff's 'mill site,' and of disturbing public order and molesting plaintiff's employees and their families within the private roads and the 'mill site' of the plaintiff." The plaintiff doubtless overlooked the fact that the allegation it availed of to obtain a preliminary injunction was necessary to secure one of a permanent character. In its new complaint, its only grievance is that the defendant insists in passing through its property to taketubato the Hacienda "Sagay" (which does not belong to the plaintiff but to Luciano Aguirre, and where the defendant has established a legitimate business). The amended complaint no longer alleges that the defendant went to the "mill site" and to the private roads of the plaintiff "to cause trouble, disturb public order and molest plaintiff's employees and their families.".It develops, however, that neither the original complaint nor the one amended states how and why the mere passage of the defendant over plaintiff's estate to conveytubato the Hacienda "Sagay" has caused damages to plaintiff's property rights, requiring the unusual intervention and prohibition thereof of the courts through injunctive relief. The plaintiff failed not only to make any allegation to this effect, but also to state that the road on its property where the defendant used to pass on his way to the Hacienda "Sagay" was open to the public in general, and that the plaintiff, exercising without any permit a power exclusively lodged in the state by reason of its sovereign capacity, required the payment of passage fees for the use of said road.Now, there being no contention here that the defendant, in passing over plaintiff's estate to taketubato the Hacienda "Sagay," occasioned damages to such estate, or that he soldtubawithin the confines thereof, what could have been the basis of plaintiff's right for which the special protection of the court is invoked, and of the illegal act laid at defendant's door? Defendant's passage over plaintiff's property does not, of itself, constitute an unlawful act inasmuch as the plaintiff, of its own accord, opened the same to the public conditioned only upon the payment of transit fees by motor vehicles. Neither does the mere transportation oftubaover plaintiff's estate amount to a violation of the latter's property rights, unless the goods' destination be at any point within the confines thereof, or unless the said goods be sold in transit to the laborers and employees of the plaintiff, which, as plaintiff itself admits in its brief (p. 15), has not been shown.The deduction from plaintiff's evidence is, that the real damage which it seeks to avoid does not consist in defendant's takingtubawith him while traversing the former's property, as there is no causal relation between the act and any resultant damage, but in the fact thattubais disposed of at the Hacienda "Sagay" to which plaintiff's laborers have access. What should, therefore, be enjoined, if it were legally possible, is defendant's sale oftubaat the Hacienda "Sagay," and not its conveyance across plaintiff's estate. But if, as plaintiff concedes (brief, p. 16), the former cannot be legally enjoined, least of all can the latter be restrained as long as the public in genera; is free to go about the said property and it has not been shown that the defendant, in passing through it, has occasioned damage thereto or has committed any act infringing plaintiff's property rights or has refused to pay the required road toll.Defendant's sale oftubaat the Hacienda "Sagay" is nothing more than the exercise of a legitimate business, and no real damage to third persons can arise from it as a natural and logical consequence. The bare possibility that plaintiff's laborers, due to the contiguity of the Hacienda "Sagay" to its property, might come to defendant's store to imbibetubato drunkenness, does not warrant the conclusion that the defendant, in thus running the business, impinges upon plaintiff's property rights and should thereby be judicially enjoined. The damage which plaintiff seeks to enjoin by this action does not consist, an has been demonstrated, in defendant's maintaining atubastore at the Hacienda "Sagay," or in defendant's crossing its property while takingtubato the Hacienda "Sagay," but in its laborers finding their way to the said hacienda in order to buytubaand become drunk. In other words, the act sought to be restrained as injurious or prejudicial to plaintiff's interests, is that committed, not by the defendant, but by plaintiff's own laborers. Rightly and logically, the injunction should be directed against said laborers to the end that they should abstain from going to the Hacienda "Sagay" in order to buytubaand become drunk. As it would seem unusual for the plaintiff to do this, it should at least exercise stricter vigilance and impose rigorous discipline on its laborers by, for instance, punishing drunkenness with expulsion. Plaintiff's remedy lies in its own hands and should not be looked for in the courts at the sacrifice of other interests no less sacred and legitimate than the plaintiff's.Where one has a right to do a thing equity has no power to restrain him from doing it. (Dammannvs.Hydraulic Clutch Co., 187 Pac., 1069.) Acts under the authority of the law will not be enjoined (Bonapartevs.Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617, Baldw., 205). Lawful exercises of rights incidentally injuring others may not be enjoined by injunction. (14 R. C. L., 369.) "It is . . . an established principle that one may not be enjoined from doing lawful acts to protect and enforce his rights of property or of person, . . .." (14 R.C.L., pp. 365, 366.).It is said that the plaintiff seeks to enjoin the defendant, not from sellingtubaat his store in the Hacienda "Sagay," but from passing through its property to introducetubato said hacienda (plaintiff's brief, p. 16). The legal rule, however, is that what the law does not authorize to be done directly, cannot be done indirectly. If the plaintiff cannot judicially enjoin the defendant from sellingtubaat the Hacienda "Sagay," neither can it obtain said injunction to prevent him from passing over its property to transporttubato that place as long as the defendant is ready to pay the transit fees required by the plaintiff and does not sell the said goods inside the said property.Suppose that the defendant, instead of being atubavendor, is a social propagandist whose preachings, while not subversive of the established legal order, are not acceptable to some capitalistic organizations, say the plaintiff. Suppose that the defendant, armed with the corresponding official permit, should desire to go to the Hacienda "Sagay" through plaintiff's estate for the purpose of explaining to the laborers the advantage of the latter organizing themselves into unions, or joining existing ones, to better defend their interests. Plaintiff learns in time of the plan and determines to frustrate it in the belief that it would be prejudicial to its interests for the laborers to be "unionized," while it is for its good that the laborers be contracted under the so-called "open shop" system. Unable to stop the holding of the meeting because the same is not to take place on its property, may the plaintiff secure an injunction from the courts to prevent the defendant to pass through the said property in order to reach the place of the meeting, by alleging that the defendant entertains theories of social reform which might poison the minds of the laborers at the expense of the plaintiff's interests? May the latter, under the same hypothesis, maintain that defendant's act in passing through its property, which is open to public use, constitute trespass or usurpation restrainable by injunction? If the answer to these questions is, as it must be, in the negative, the present case is not susceptible of a different solution. The only difference between the two cases is that in the one supposed the dreaded damage to plaintiff's interests is of more moment and or more lasting effect than that in the case at bar.When a private road has been thrown open to public use, no action for trespass is maintainable against any person who desires to make use thereof; consequently, an injunction suit likewise does not lie."Private roads, except where laid out under constitutional provisions authorizing the condemnation of private property for a private use, are public roads in the sense that they are open to all who see fit to use them, and it is immaterial that the road is subject to gates and bars, or that it is merely a cul de sac. Being this considered as a public road, it necessarily follows thatthe owner of the land through which the road is laid out cannot maintain an action of trespass against any person using it; . . ." (50 C.J., pp. 397, 398.).". . . Where it is clear that the complainant does not have the right that he claims, he is not entitled to an injunction, either temporary or perpetual, to prevent a violation of such supposed right. . . . An injunction will not issue to protect a right not in esse and which may never arise or to restrain an act which does not give rise to a cause of action, . . .." (32 C.J., pp. 34, 35.)B.In its brief, plaintiff states:"In transporting thetubawhich he sells in his saloon in Hacienda 'Sagay' the defendant used to pass thru the private road of the plaintiff which connects its sugar central with the provincial road. On this private road the plaintiff has put up a gate under the charge of a keeper, and every time that the defendant passed with a cargo oftubathe gatekeeper would stop him and remind him thattubawas not permitted entry into the private properties of the company, but instead of heeding this prohibition the defendant would simply deviate from the road and continue on his way to hacienda 'Sagay' by way of the fields of Hacienda 'Begoa,' which is also the private property of the plaintiff."It is deductible from the above statement that, whenever the gatekeeper of the plaintiff prevented the defendant from passing thru its so-called "private road," on his way from the provincial road to the Hacienda, "Sagay," the defendant deviated from said road and carried thetubaacross the lands of the Hacienda "Begoa" is the same one frequented by carabaos (s.t., 32, 36). Plaintiff intends not only to prohibit the defendant from using the road in question, but also from crossing the lands of the Hacienda "Begoa," also belonging to the plaintiff, where carabaos are allowed to roam. An act so shocking to the conscience, one is reminded, could only have been perpetrated during the feudal period when human rights were unmercifully sacrificed to property rights. If an injunction should lie in the instant case, it should be in favor of the defendant and against the plaintiff, to enjoin the latter from obstructing the former to pass over the road in question to conveytubato the Hacienda "Sagay." It is indeed strange that it is the plaintiff and not the defendant that should have applied for the remedy." . . . An injunction will not be granted when good conscience does not require it, where it will operate oppressively or contrary to justice, where it is not reasonable and equitable under the circumstances of the case, or where it will tend to promote, rather than to prevent, fraud and injustice. . . ." (32 C.J., p. 33.) ". . . a court of equity may interfere by injunction to restrain a party from enforcing a legal right against all equity and conscience. . . ." (14 R.C. L., pp. 365, 366, par. 66.) ". . . The comparative convenience or inconvenience of the parties from granting or withholding the injunction sought should be considered, and none should be granted if it would operate oppressively or inequitably, or contrary to the real justice of the case. This doctrine is well established. . . ." (14 R.C.L., pp. 357, 358, par. 60.)"The power of the courts to issue injunctions should be exercised with great caution and only where the reason and necessity therefor are clearly established; and while this rule has been applied more frequently in the case of preliminary and mandatory injunctions, it applies to injunctions of all classes, and to restraining orders. . . ." (32 C.J., pp. 33, 34.)"The writ of injunction will not be awarded in doubtful or new cases not coming within well-established principles of equity." (Bonapartevs.Camden, etc. Railroad Co., 3 Fed. Cas. No. 1617; Hardestyvs.Taft, 87 Am. Dec., 584.)C.Plaintiff's action is frivolous and baseless.Plaintiff states in the sixth paragraph of its amended complaint:"6.That, in addition, the plaintiff, in the exercise of its property rights, does not want to allow the entry of the defendant in any part of its estate above mentioned in order to avert any friction or ill-feeling against him."The plaintiff, in petitioning the courts for an injunction to avert "friction or ill-feeling" against the defendant, invoking its sacred property rights, attempts to intrust to them a mission at once beyond those conferred upon them by the Constitution and the laws, and unbecoming of their dignity and decorum.D.Plaintiff has not established the existence, real or probable, of the alleged damage against which the injunction is invoked.As has been seen, the allegations of the amended complaint do not justify the granting of an injunction. The said allegations only state, as the basis of plaintiff's action, that the defendant insists in passing or "making incursions" on plaintiff's property to taketubato the Hacienda "Sagay," and that the plaintiff wants to avoid "friction and ill-feeling against him." Such allegations do not imply the existence, or probable existence, of any real damage to plaintiff's rights which should be enjoined, and do not, therefore, constitute a legal cause of action. On the other hand, what the plaintiff attempted to establish by its evidence differs from the allegations of its amended complaint. What said evidence really discloses is not, that the plaintiff had forbidden the defendant to conveytubato the Hacienda "Sagay" through plaintiff's estate, but to introducetubainto the central or to placetubaon its lands, or, according to Exhibit A, to trespass illegally on plaintiff's estate. The testimony of the gatekeeper Santiago Plagata and the accountant Ankerson is as follows:"Q.Why did you detain him?A.Because the Central forbids the bringing oftubato the Central."Q.Why does the Central prohibit the entry oftuba?A.The Central prohibits the entry oftubathere because the laborers, generally, buytuba, drink it and become drunk, and are unable to work, and sometimes they fight because they are drunk." (S.t., p.5.)."Q.Why did you kick them?A.Because the North Negros Sugar Co. prohibits the placing oftubaon those lands." (S.t., pp. 38, 39.)Exhibit A, the alleged letter addressed by the plaintiff to the defendant, recites:"Mr. SERAFIN HIDALGO,Driver of Auto, License No. 1085-1935."Present"SIR: Effective this date, you are hereby forbidden to trespass upon any of the Company's properties under penalties of law prescribed for trespass."NORTH NEGROS SUGAR CO., INC."By: (Sgd.) Y.E. GREENFIELD"Manager"It will be noted that according to this letter, the defendant was enjoined by the plaintiff from passing thru its properties, whether he carriedtubaor not.Plaintiff's admission in its brief (p. 15) that it has not been established that the defendant has broughttubato the "mill site," or has sold it within its property, is fatal to the present action charging the defendant with said acts.E.The well-known principle of equity that "he who comes to equity must come with clean hands" bars the granting of the remedy applied for by the plaintiff.It has been already stated that the plaintiff, to obtain a preliminary injunction in this case, alleged under oath in its original complaint facts which it knew to be false, or, at least, unprobable, because it did not only eliminate them from the a