An agreement creating an easement of right-of-way is not one of those contracts covered by the statue of frauds since it is not a sale of property or of an interest therein
Facts: In 1955, Western Mindanao Lumber (Western), a logging company, obtained a right-of-way over a property owned by Hernandez. Medalle, the new owner of the property, notified Western that he will close the road running through his property through which Western's trucks pass in hauling logs. Western's filed a complaint for injunction praying that a writ of preliminary injunction be issued restraining Medalle from closing the said road, and after hearing, make the injunction permanent. Medalle filed a motion to dismiss the complaint upon the ground that the claim on which the action or suit is founded is unenforceable under the provisions of the Statute of Frauds and special law, in that the first page of the said road right-of-way agreement was not signed by both parties and their instrumental witnesses; page two thereof is not dated, and the signature of the plaintiffs corporate agent does not appear; and that said agreement is not acknowledged before a person authorized to administer oaths. Western opposed the motion, stating that the agreement between Western and Hernandez is not one of those agreements specified in the Statute of Frauds. The trial court granted the motion to dismiss. Hence, Western appealed.
Issue: Whether statute of frauds is applicable to agreements creating a right of way
Held: The Statute of Frauds refers to specific kinds of transactions and cannot apply to any that is not enumerated therein. Obviously, an agreement creating an easement of right-of-way is not one of those contracts covered by the statue of frauds since it is not a sale of property or of an interest therein. The trial court therefore, erred in dismissing the case upon the defendants' claim that the road fight-of-way agreement in question is unenforceable under the statute of frauds. (Western Mindanao Lumber vs Medalle, G.R. No. L-23213, October 28, 1977)
Note: Also, the Statute of Frauds is applicable only to executory contracts, not to contracts that are totally or partially performed. Here, the verbal agreement with respect to the right of way had already been totally executed.