CONCORDIO ABELLANA, SR., PEDRO E. MENDEZ, VERANO BADANA, CONCORDIO ABELLANA, JR., TEODOLFO ABELLANA, MUSSULINI BUCAO, REMEDIOS GARCIANO, ALFREDO SY, JUANITO JABELLANA, CATALINO …

The petitioners who live on a parcel of
land abutting the northwestern side of the Nonoc
Homes Subdivision, sued to establish an easement of right of way over a subdivision
road which, according to the petitioners, used to be a mere footpath which they
and their ancestors had been using since time immemorial, and that, hence, they
had acquired, through prescription, an easement of right of way therein. The
construction of a wall by the respondents around the subdivision deprived the
petitioners of the use of the subdivision road which gives the subdivision
residents access to the public highway. They asked that the high concrete walls
enclosing the subdivision and cutting off their access to the subdivision road
be removed and that the road be opened to them.

The private respondents denied that there was a pre-existing
footpath in the place before it was developed into a subdivision. They alleged
furthermore that the Nonoc Subdivision roads are not
the shortest way to a public road for there is a more direct route from the
petitioners’ land to the public highway.

After trial, the trial court rendered judgment disposing as
follows:

“WHEREFORE, judgment is hereby rendered, and, accordingly,
defendants Orlando P. Naya and Rosendo.
Estoye, Jr. and the intervenors
are hereby ordered to demolish the subject fences or enclosures at the dead
ends of Road Lots 1 and 3 of the Nonoc Homes
Subdivision at their expense and to leave them open for the use of the
plaintiffs and the general public, within fifteen (15) days from finality of
this judgment. The complaint as against defendant Municipal Government of Talisay, Cebu is ordered dismissed. All counterclaims are ordered
dismissed. No pronouncement as to costs.” (p. 15, Rollo.)

However, on appeal by the defendants and intervenors
(now private respondents), the appellate court on October 17, 1990, reversed the appealed judgment. It
found that:

“As borne out by the records of the case, the abovementioned
requisites essential for the grant of an easement of right of way are not
obtaining in this case hence no alternative presents itself except reversal of
the judgment below. x x x.

“However, the foregoing is without prejudice to the filing of
the appropriate action by the proper authorities. Records bear that attention
of the Municipal Mayor of Talisay was already called
by Provincial Fiscal to Opinion No. 172, .Series of 1975, of Department of
Justice wherein Acting Secretary of Justice opined that ‘road lots in a private
subdivision are private property and should be acquired by the government by
donation, purchase or expropriation if they are to be utilized for a public
highway. xxx.’

“x x x             x x x                 x x x.

“WHEREFORE, the judgment appealed from is hereby REVERSED and
set aside. The Municipal Government of Talisay, Cebu, at its option, may institute the proper
action for expropriation.” (p. 22, Rollo.)

In an order dated January
9, 1991, the appellate court denied petitioners’ motion for
reconsideration of the aforesaid decision. Hence, this petition for review in
which the petitioners allege that the Court of Appeals erred:

1.       in
not holding that the easement claimed by them is a legal easement established
by law (Art. 619, Civil Code) and acquired by them by virtue of a title under
Art. 620, Civil Code and P. D. No. 957through the National Housing Authority
which has exclusive jurisdiction to regulate subdivision and condominium
projects;

2.       in not holding that
the footpaths and passageways which were converted into subdivision road lots
have acquired the status of public streets in view of Section 4 of Municipal
Ordinance No. 1, Series of 1969 of Talisay, Cebu which provides that subdivision roads shall be used
not only for the exclusive use of the homeowners but also for the general
public, and Section 5, of Ordinance No. 5. Series of 1974 which provides that
“those subdivision road lots whose use by the public are (sic) deemed
necessary by the proper authorities shall be made available for public
use” (p. 7, Rollo); and

3.       in
not determining whether or not the closure of, the dead ends of road lots 1 and
3 of the Nonoc Homes Subdivision by the private
respondents, Estoye and Naya,
was legal.

After deliberating on their petition for review of the decision
dated October 17, 1990 of the Court of Appeals in CA-G.R. CV No. 19948, and the
private respondents’ comments, we find that the petition raises merely factual
issues which are not reviewable by this Court under
Rule 45 of the Rules of Court, and that, in any event, no reversible error was
committed by the Court of Appeals in dismissing the complaint on the ground
that the requisite conditions do not exist for the grant of an easement of
right of way in favor of the petitioners’ land under Articles 649 and 650 of
the Civil Code. The appellate court did not err in holding that the road lots
in a private subdivision are private property, hence,
the local government should first acquire them by donation, purchase, or
expropriation, if they are to be utilized as a public road.

Petitioners’ assumption that an easement of right of way is
continuous and apparent and may be acquired by prescription under Article 620
of the Civil Code, is erroneous. The use of a footpath
or road may be apparent but it is not a continuous easement
because its use is at intervals and depends upon the acts of man. It can be
exercised only if a man passes or puts his feet over somebody else’s land (4 Manresa 597; Haffman vs.
Shoemaker, 71 SE 198, both cited on p. 454, Vol. 2, 6^th Ed., Paras, Civil Code of the Philippines). Hence, a right of
way is not acquirable by prescription (Cuaycong, et
al. vs. Benedicto, et al. 37 Phil. 781; Ronquillo, et al. vs. Roco. et
al., 103 Phil. 84; Ayala de Roxas vs. Case, 8 Phil.
197).

Neither may petitioners invoke Section 29 of P.D. 957 which
provides:

“SEC. 29. Right of Way to Public Road. – The owner or developer of a subdivision without access
to any existing public road or street must secure a right of way to a public
road or street and such right of way must be developed and maintained according
to the requirement of the government authorities concerned.”

The above provision
applies to the owner or developer of a subdivision (which petitioners are not)
without access to a public highway.

The petitioners’ allegation that the footpaths which were
converted to subdivision roads have acquired the status of public streets, is not well taken. In the first place, whether or
not footpaths previously existed in the area which is now known as the Nonoc Homes Subdivision, is a
factual issue which this Court may not determine for it is not a trier of facts.

The municipal ordinances which declared subdivision roads open to
public use “when deemed necessary by the proper authorities” (p. 7, Rollo) simply allow persons other than the residents of the
Nonoc Homes Subdivision, to use the roads therein
when they are inside the subdivision but those ordinances do not give outsiders
a right to open the subdivision walls so they can enter the subdivision from
the back. As the private respondents pointed out in their Comment:

“The closure of the dead ends of road lots 1 and 3 is a valid
exercise of proprietary rights. It is for the protection of residents in the
subdivision from night prowlers and thieves. And the public is not denied use
of* the subdivision roads, only that the users must get inside the subdivision
through the open ends of the road lots that link the same to the public road.
It is common to most, if not all subdivisions in Cebu,
Metro Manila and other places, that points of ingress to and egress from the
subdivisions are the points where the subdivision roads intersect with public
road. It is of judicial notice that most, if not all, subdivisions are enclosed
and fenced with only one or few points that are used as ingress to and egress
from the subdivisions.” (pp. 54-55, Rollo.)

WHEREFORE, finding no
merit in the petition for review, the same is DENIED with costs against the petitioners.

SO ORDERED.

Narvasa, C. J., Cruz, and Medialdea, JJ., concur.

Bellosillo, J., on leave.