[ G.R. No. L-10619. February 28, 1958 ] 103 Phil. 84
[ G.R. No. L-10619. February 28, 1958 ]
LEOGARIO RONQUILLO, ET AL., PLAINTIFFS AND APPELLANTS, VS. JOSE ROCO, AS ADMINISTRATOR OF VICENTE ROCO Y DOMINGUEZ, ET AL., DEFENDANTS AND APPELLEES. D E C I S I O N
MONTEMAYOR, J.:
Involving as it does only a question of law, the present appeal from the order of the Court of First Instance of CamarJnes Sur, dated March 6, 1955, dismissing the amended and supplemental complaint of plaintiffs on motion of defendants that it did not state a cause of action, was taken directly to this Court.
The facts and the issue involved in the appeal are well and correctly stated in the appealed order, the pertinent portion of which we are reproducing and making our own:
“The amended and supplemental complaint alleges that the plaintiffs have been in the continuous and uninterrupted use of a road or passage way which traversed the land of the defendants and’ their predecessors in interest, in going to Igualdad Street and the market place of Naga City, from their residential land and back, for more than 20 years; that the defendants and the tenants of Vicente Roco, the predecessors in interest of the said defendants have long recognized and respected the private legal easement of road right of way of said plaintiffs; that on May 12, 1953, the defendants Jose Roco thru his co-defendants, Raymundo Martinez and their men with malice aforethought and with a view to obstructing the plaintiffs’ private legal easement over the property of the late Vicente Roco, started constructing a chapel in the middle of the said right of way construction actually impeded, obstructed and disturbed the continuous exercise of the rights of the plaintiffs over said right of way; that on July 10, 1954 the new defendants Natividad Roco and Gregorio Miras, Jr. with the approval of the defendant, Jose Roco and with the help of their men and laborers, by means of force, intimidation, and threats, illegally and violently planted wooden posts, fenced with barbed wire and closed hermitically the road passage way and their right of way in question against their protests and opposition, thereby preventing them from going to or coming from their homes to Igualdad Street and the public market of the City of Naga.
“It is very clear from the allegations of the plaintiffs in their amended and supplemental complaint, that they claim to have acquired the easement of right of way over the land of the defendants and the latter’s predecessors in interest, Vicente Roco, thru prescription by their continuous and uninterrupted use of a narrow strip of land of the defendants as passage way or road in going to Igualdad Street and the public market of Naga City, from their residential land or houses, and return.
“The only question therefore to be determined in this case, is whether an easement of right of way can be acquired thru prescription.”
The dismissal was based on the ground that an easement of right of way though it may be apparent is, nevertheless, discontinuous or intermittent and, therefore, cannot be acquired through prescription, but only by virtue of a title. Under the Old as well as the New Civil Code, easements may be continuous or discontinuous (intermittent) , apparent or non-apparent, discontinuous being those used at more or less long intervals and which depend upon acts of man (Articles 532 and 615 of the Old and New Civil Codes, respectively). Continuous and apparent easements are acquired either by title or prescription, continuous non-apparent easements and discontinuous ones whether apparent or not, may be acquired only by virtue of a title (Articles 537 and 539, and 620 and 622 of the Old and New Civil Codes, respectively).
Both Manresa and Sanchez Roman are of the opinion that the easement of right of way is a discontinuous one:
“En cambio, las servidumbres discontinuas se ejercitan por un hecho del hombre, y precisamente por eso son y tienen qua ser discontinuas, porque es imposible fisicamente que su uso sea incesante. Asi, la servidumbre de paso es discontinua, porque no es posible que el hombre este pasando contmnamente por el eamino, vereda o senda de que se trate.” (4 Manresa, Codigo Civil Espanol, 5th ed., p. 529).
- “5° Por razon de los modos de disfrutar las servidumbres, en continuas y diseontinuas (1). Las continues son aquellas cuyo uso es 6 pucde ser incesante, sin la intervention de ningun liecho del hombre, como son las de luces y otras de la misma especie; y las discontinuas, las que se usan a intervalos, mas 6 menos largos, y dependen de actos del hombre, como las de senda, carrera y otras de esta clase,” (3 Sanchez Roman, Derecho Civil, p. 488).
Under the provisions of the Civil Code, old and new, particularly the articles thereof aforecited, it would therefore appear that the easement of right of way may not be acquired through prescription. Even Article 1959 of the Old Civil Code providing for prescription of ownership and other real rights in real property, excludes therefrom the exception established by Article 539, referring to discontinuous easements, such as, easement of right of way. (Bargayo vs. Camumot, 40 Phil., 857, 867).
In the case of Cuayong vs. Benedicto, 37 Phil., 781 where the point in issue was whether or not vested rights in a right of way can be acquired through user from time immemorial, this Court said:
“It is evident, therefore, that no vested right by user from time immemorial had “been acquired by plaintiffs at the time the Civil Cede took effect. Under that Code (Article 539) no discontinuous easement could be acquired by prescription in any event.”
However, in the case of Municipality of Dumangas vs. Bishop of Jaro, 34 Phil., 545, this same Tribunal held that the continued use by the public of a path over land adjoining the Catholic church in going to and from said church through its side door, has given the church the right to such use by prescription, and that because of said use by the public, an easement of right of way over said land has been acquired by prescription, not only by the church, but also by the public, which without objection or protest on the part of the owner of said land, had continually availed itself of the easement.
The minority of which the writer of this opinion is a part, believes that the easement of right of way may now be acquired through prescription, at least since the introduction into this jurisdiction of the special law on prescription through the Old Code of Civil Procedure, Act No. 190. Said law, particularly, Section 41 thereof, makes no distinction as to the real rights which are subject to prescription, and there would appear to be no valid reason, at least to the writer of this opinion, why the continued use of a path or a road or right of way by the party, specially by the public, for ten years or more, not by mere tolerance of the owner of the land, but through adverse use of it, cannot give said party a vested right to such right of way through prescription.
“The uninterrupted and continuous enjoyment of a right of way necessary to constitute adverse possession does not require the use thereof every day for the statutory period, but simply the exercise of the right more or less frequently according to the nature of the use. (17 Am. Jur. 972)”
Even under the case of Cuaycong vs. Benedicto (supra), this Tribunal insinuated that the rule that no discontinuous easement, like an easement of right of “way, may, under Article 539 of the Old Civil Code, be acquired, might possibly have been changed by the provisions of the Code of Civil Procedure relative to prescription.
- “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 (section 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 to do so until they were enjoined by the granting of the preliminary injunction by the trial court in December 1912.” * * * (Cuaycong vs. Benedicto, 37 Phil., 781,796).
Professor Tolentino in his Commentaries and Jurisprudence on the Civil Code, Vol. I, p. 340, would appear to be of the opinion that under the provisions of the Code of Civil Procedure relative to prescription, even discontinuous easements, like the easement of right of way, may be acquired through prescription:
- “It is submitted that under Act No. 190, even discontinuous servitudes can be acquired by prescription, provided it can be shown that the servitude was ‘actual, open, public, continuous, under a claim of title exclusive of any other right and adverse to all other claimants’.”
However, the opinion of the majority must prevail, and it is held that under the present law, particularly, the provisions of the Civil Code, old and new, unless and until the same is changed or clarified, the easement of right of way may not be acquired through prescription.
In view of the foregoing, the order appealed from is hereby affirmed. No costs.
Bengzon, Bautista Angelo, Labrador, Concepcion, Endencia, and Felix, JJ., concur.
Padilla, J., concurs in the result.