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.
MONTEMAYOR, J.:
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.
CONCURRING
REYES, J. B. L., J.,
I would like to elaborate my reasons for concurring with the majority in
declaring the easement of right of way not acquirable by prescription.
The essence of this easement (“servidumbre de paso”) lies in the power of the
dominant owner to cross or traverse the servient tenement without being
prevented or disturbed by its “owner. As a servitude, it is a limitation on the
servient owner’s rights of ownership, because it restricts his right to exclude
others from his property. But such limitation exists only when the dominant
owner actually crosses or passes over the servient estate; because when he does
not, the servient owner’s right of exclusion is perfect and undisturbed. Since
the dominant owner can not be continually and uninterruptedly crossing the
servieiit estate, but can do so only at intervals, the easement is necessarily
of an intermittent or discontinuous nature.
Because possession of a right consists in the enjoyment of that right (old
Civil Code, Art. 430; Art. 423, new Civil Code) and to enjoy a right is to
exercise it, it. follows that the possession (enjoyment or exercise) of a right
of way is intermittent and discontinuous. From this premise, it is inevitable to
conclude, with Manresa and Sanchez Roman, that such easement can not be acquired
by acquisitive prescription (adverse possession) because the latter requires
that the possession be continuous or uninterrupted (old Civil Code, Art. 1941;
new Civil Code, Art. 1118),
The Code of Civil Procedure (Act 190) did not change the situation. Observe
that its section 41, in conferring prescriptive title upon “ten years adverse
possession” qualifies it by the succeeding words “uninterruptedly continued for
ten years”, which is the same condition of continuity that is exacted by the
Civil Code.
“SEC. 41. Title to Land by Prescription.-Ten years actual adverse possession
by any person claiming to be the owner for that time of any land or interest in
land, uninterruptedly continued for ten years by occupancy, descent, grants, or
otherwise, in whatever way such occupancy may have commenced or continued, shall
vest in every actual occupant or possessor of such land a full and complete
title, saving to the persons under disabilities the rights secured by the next
section. In order to constitute such title by prescription or adverse
possession, the possession by the claimant or by the. person under or through
whom he claims must have been actual, open, public, continuous, under a claim of
title exclusive of any other right and adverse to all other claimants. But
failure to occupy or cultivate land solely by reason of war shall not be deemed
to constitute an interruption of possession of the claimant, and his title by
prescription shall be complete, if in other respects perfect, notwithstanding
such failure to occupy or cultivate the land during the continuance of
war.”
The case of Municipality of Dumangas vs. Bishop of Jaro, 34 Phil. 541, does
not, if properly analyzed, constitute authority to hold that the easement of
right of way is acquirable by prescription or adverse possession.
The Court there said:
“The record shows that the church of the pueblo of Dumangas was constructed
in or about the year 1887; that its wall on the southeast side adjoins the
building lot in question; and that since the construction of the church there
has been a side door in this wall through which the worshippers attending divine
service enter and leave, they having to pass over and cross the land in
question. It is therefore to be presumed that the use of said side door also
carries with it the use by faithful Catholics of the municipal land over which
they have had to pass in order to gain access to said place of worship, and, as
this use of the land has been continuous, it is evident that the Church has
acquired a right to such use by prescription, in view of the time that has
elapsed since the church was built and dedicated to religious worship, during
which period the municipality has not prohibited the passage over the land by
the persons who attend services customarily held in said church.The record does not disclose the date when the Government ceded to the Church
the land on which the church building was afterwards erected, nor the date of
the laying out of the adjacent square that is claimed by the municipality and on
which the side door of the church, which is used as an entrance by the people
who frequent this building, gives. There are good grounds for presuming that in
apportioning lands at the time of the establishment of the pueblo of Dumangas
and in designating the land adjacent to the church as a public square, this
latter was impliedly encumbered with the easement of a right of way to allow the
public to enter and leave the church-a case provided for by article 567 of the
Civil Code-for the municipality has never erected any building or executed any
work which would have obstructed the passage and access to the side door of the
church, and the public has been enjoying the right of way over the land in
question for an almost immemorable length of time. Therefore 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, has
continually availed itself of the easement in question.” (34 Phil., pp.
545-546).
It will be seen that the ratio decidendi of that case lies in the application
of Article 567 of the old Civil Code that provides as follows:
“ART. 567. When an estate acquired by purchase, exchange, or partition is
enclosed by other estates of the vendor, exchanger, or co-owner, the latter
shall be obliged to grant a right of way without indemnity, in the absence of an
agreement to the contrary.”
Bearing in mind the provisions of the article quoted in relation to the
wording of the decision in the Dumangas case, it can be seen that what the court
had in mind is that when the Spanish Crown apportioned the land occupied by the
Church of Dumangas, it impliedly burdened the neighboring public square (which
was also Crown property at the time) with an easement of right of way to allow
the public to enter and leave the church, because without such easement the
grant in favor of ecclesiastical authorities would be irrisory: what would be
the use of constructing a church if no one could enter it? Now, if there was an
implied grant of the right of way by the Spanish Crown, it was clearly
unnecessary to justify the existence of the easement through prescriptive
acquisition. Why then does the decision repeatedly speak of prescription?
Plainly, the word “prescription” was used in the decision not in the sense of
adverse possession for ten or thirty years, but in the sense of “immemorial
usage” that under the law (interior to the Civil Code of 1889, was one of the
ways in which the servitude of right of way could be acquired.[1] This view is confirmed by the fact that
throughout the passages hereinabove quoted, tho court’s decision stresses that
the people of Dumangas have been passing over the public square to go to church
since the town was founded and the church was built, an “almost immemorable
length of time.” It would seem that the term “prescription” used in said case
was merely a loose expression that is apt to mislead unless the court’s
reasoning is carefully analyzed.
Since 1889, however, the Civil Code repealed the prior legislation; and
thereafter the right of way could only be acquired by title and not by adverse
possession (usucapio), saving those servitudes already acquired before the Code
came into effect (Decisions, Supreme Court of Spain, 27 Oct. 1900, 1st February
1912; 11 May 1927, and 7 January 1920).
Paras, C. J., and Reyes A., J., concur.
[1]In fact, the Siete Partidas. (law 25,
Title 31, of the Third Partida), in treating of this servitude declared that to
gain this servitude hy lapse of time “ha mencster que aya usado dellas-tanlo
tieinpo de que non se puedan acordar ios omes quanto ha quo lo comonzaron
usar”.