[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.,

MONTEMAYOR, J.:

Involving as it does only a question of law, the present appeal from the order of the
Court of First Instance of Camarines 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

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 nonapparent 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 que 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 esté pasando continuamente por el camino,
vereda o senda de que se trate." (4 Manresa, Codigo Civil Español, 5th ed., p. 529).

* * * "5° Por razón de los modos de disfrutar las servidumbres, en continuas y

Under the provisions of the Civil Code, old and new, particularly the articles thereof
aforecited, it would there fore 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 Code 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

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