GR L 8654; (March, 1914)

EN BANC

G.R. No. L-8654; March 30, 1914

EUGENIO RESOLME, ET AL., plaintiff-appellees,

vs.
ROMAN LAZO, defendant-appellant.

Roman Lazo in his own behalf.
A. M. Jimenez for appellees.

CARSON, J.:

Plaintiff claiming a right of way across the land of the defendant allege that it has been and is being obstructed by him by the erection of fences, which compel them to make a sharp turn near the boundary of his land, and to cross his land on a parallel with and a little to the north of the ancient right of way. The evidence of record, read together with the excellent and manifestly fair and unbiased report of the commissioner appointed by the trial court, clearly establishes the existence of the ancient right of way as set forth in the complaint, and leaves no room for doubt that the defendant, for his own convenience and without the consent of the plaintiffs, has and is obstructing the ancient right of way by fencing it off and thus compelling the plaintiffs to use another and less convenient means of passage across his land. Plaintiff’s evidence and the commissioner’s report tend very strongly to maintain a finding that the new right of way is not much less convenient and commodious than the old one, defendant’s object in making the change being merely to move the road a little farther away from his house. The commissioner suggest that the principal objection to the new right of way could be overcome by making the turn from the old road into the new one at an angle not quite so sharp as that in actual use, and his clear and comprehensive report would appear to sustain his contentions. But it must be remembered that this is not a question of laying out a new road, in which questions of relative convenience to the public and the land owners whose property is taken for the public use may properly be taken into consideration. The question here submitted is whether the defendant is or is not obstructing an ancient right of way as alleged in the complaint; and the allegations of the complaint having been established in a proper action, the plaintiffs’ right to relief cannot be defeated by proof that defendant has furnished a new right of way, nearly but not quite as convenient and commodious as the old one. Such evidence would be of much importance if plaintiffs had undertaken to establish their claim of damages, but since there is no competent proof in the record in support of their allegations as to damages it can have no controlling influence in the dispositions of the real issues involved on this appeal.

We are of opinion that the trial judge correctly held that record sustains the plaintiff’s claim of a right of way as indicated by the arrows marked number 1 on the plan of the land submitted by the commissioner and filed with the record. We think however that the form of judgment entered by him must be modified. He directed merely that this road “be opened for the public use” and by inference imposed upon by the defendant the duty of so doing. But there is nothing in the record which would justify a finding that the defendant is charged with a duty to maintain or construct a road across his land. So far as the record discloses his only obligation in regard to this right of way over his land is a negative one, that is to say, not to obstruct or hinder the free passage over it of any persons entitled to make use of it. While the prayer of the complaint does not clearly indicate the relief sought by the plaintiffs, we think it may be fairly be construed as a prayer for a permanent injunction, and as that is the relief to which the plaintiffs are entitled upon the facts alleged and proven, the trial court should have granted a permanent injunction prohibiting the defendant from obstructing, by the maintenance of fences or otherwise, the plaintiffs’ passage over the ancient right of way, which the trial court found to be in a direct line as indicated by the arrows marked No. 1 in the commissioner’s plan.

Let the judgment be entered reversing the judgment entered in the court below, without costs to either party.

Arellano, C.J., Moreland and Araullo, JJ., concur.

Batas Pinas