BOGO-MEDELLIN MILLING CO. INC. V CA Digest on the land but grants no title thereto.

on the land but grants no title thereto. Therefore, an acknowledgment of the easement is an admission that
the property belongs to another.
FACTS: Magdaleno Valdez, Sr., father of herein private respondents Sergio Valdez etc. purchased from
Feliciana Santillan a parcel of unregistered land with an area of one hectare, 34 ares and 16 centares, Having held the property by virtue of an easement, petitioner cannot now assert that its occupancy since
located in Barrio Dayhagon, Medellin, Cebu. He took possession of the property and declared it for tax 1929 was in the concept of an owner. Neither can it declare that the 30-year period of extraordinary
purposes in his name. Prior to the sale, however, the entire length of the land from north to south was acquisitive prescription started from that year.
already traversed in the middle by railroad tracks owned by petitioner Bogo-Medellin Milling Co., Inc.
(hereafter Bomedco). The tracks were used for hauling sugar cane from the fields to petitioners sugar
The mere expiration of the period of easement in 1959 did not convert petitioners possession into an
mill. When Magdaleno Valdez, Sr. passed away in 1948, herein private respondents inherited the land.
adverse one. Mere material possession of land is not adverse possession as against the owner and is
However, unknown to them, Bomedco was able to have the disputed middle lot which was occupied by
insufficient to vest title, unless such possession is accompanied by the intent to possess as an owner.There
the railroad tracks placed in its name in the Cadastral Survey of Medellin, Cebu in 1965. The entire
should be a hostile use of such a nature and exercised under such circumstances as to manifest and give
subject land was divided into three. However, Lot No. 954, the narrow lot where the railroad tracks lay,
notice that the possession is under a claim of right.
was claimed by Bomedco as its own and was declared for tax purposes in its name.

The only time petitioner assumed a legal position adverse to respondents was when it filed a claim over
It was not until 1989 when private respondents discovered the aforementioned claim of Bomedco on
the property in 1965 during the cadastral survey of Medellin. Since then (1965) and until the filing of the
inquiry with the Bureau of Lands. Through their lawyer, they immediately demanded the legal basis for
complaint for the recovery of the subject land before the RTC of Cebu in 1989, only 24 years had lapsed.
Bomedco's claim over Cadastral Lot No. 954 but their letter of inquiry addressed to petitioner went
Since the required 30-year extraordinary prescriptive period had not yet been complied with in 1989,
unheeded, as was their subsequent demand for payment of compensation for the use of the land.
petitioner never acquired ownership of the subject land.

, respondent heirs filed a Complaint for Payment of Compensation and/or Recovery of Possession of
Neither can petitioner find refuge in the principle of laches. It is not just the lapse of time or delay that
Real Property and Damages with Application for Restraining Order/Preliminary Injunction against
constitutes laches. The essence of laches is the failure or neglect, for an unreasonable and unexplained
Bomedco before the Regional Trial Court of Cebu. Respondent heirs alleged that, before she sold the land
length of time, to do that which, through due diligence, could or should have been done earlier, thus
to Valdez, Sr. in 1935, Santillan granted Bomedco, in 1929, a railroad right of way for a period of 30
giving rise to a presumption that the party entitled to assert it had either abandoned or declined to assert it.
years. When Valdez, Sr. acquired the land, he respected the grant. The right of way expired sometime in
1959 but respondent heirs allowed Bomedco to continue using the land because one of them was then an
employee of the company. Records show that respondent heirs only learned about petitioners claim on their property when they
discovered the inscription for the cadastral survey in the records of the Bureau of Lands in 1989.
Respondents lost no time in demanding an explanation for said claim in their letters to the petitioner dated
On the other hand, Bomedcos principal defense was that it was the owner and possessor of Cadastral Lot
March 1, 1989 and April 6, 1989. When petitioner ignored them, they instituted their complaint before the
No. 954, having allegedly bought the same from Feliciana Santillan in 1929, prior to the sale of the
Regional Trial Court of Cebu City on June 8, 1989.
property by the latter to Magdaleno Valdez, Sr. in 1935. It also contended that plaintiffs claim was
already barred by prescription and laches because of Bomedcos open and continuous possession of the
property for more than 50 years. Petitioner contends that, even if it failed to acquire ownership of the subject land, it nevertheless became
legally entitled to the easement of right of way over said land by virtue of prescription under Article 620
of the Civil Code:
ISSUE/ HELD: WON petitioner acquired ownership of the easement through prescription.
NEGATIVE. 30-year extraordinary prescriptive period had not yet been complied and there was neither
laches. Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years.

RATIO DICIDENDI:
Instead of indicating ownership of the lot, these receipts showed that all petitioner had was possession by
virtue of the right of way granted to it. Were it not so and petitioner really owned the land, petitioner
would not have consistently used the phrases central railroad right of way and sugar central railroad
right of way in its tax declarations until 1963. Certainly an owner would have found no need for these
phrases. A person cannot have an easement on his own land, since all the uses of an easement are fully
comprehended in his general right of ownership.
An easement or servitude is a real right, constituted on the corporealimmovable property of another, by
virtue of which the owner has to refrain from doing, or must allow someone to do, something on his
property, for the benefit of another thing or person. It exists only when the servient and
dominant estates belong to two different owners. It gives the holder of the easement an incorporeal interest
Under civil law and its jurisprudence, easements are either continuous or discontinuous according to the
manner they are exercised, not according to the presence of apparent signs or physical indications of the
existence of such easements. Thus, an easement is continuous if its use is, or may be, incessant without the
intervention of any act of man, like the easement of drainage; and it is discontinuous if it is used at
intervals and depends on the act of man, like the easement of right of way.
The easement of right of way is considered discontinuous because it is exercised only if a person passes or
sets foot on somebody elses land. Like a road for the passage of vehicles or persons, an easement of right
of way of railroad tracks is discontinuous because the right is exercised only if and when a train operated
by a person passes over another's property. In other words, the very exercise of the servitude depends
upon the act or intervention of man which is the very essence of discontinuous easements.
The presence of more or less permanent railroad tracks does not in any way convert the nature of an
easement of right of way to one that is continuous. It is not the presence of apparent signs or physical

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indications showing the existence of an easement, but rather the manner of exercise thereof, that
categorizes such easement into continuous or discontinuous. The presence of physical or visual signs
only classifies an easement into apparent or non-apparent. Thus, a road (which reveals a right of way) and
a window (which evidences a right to light and view) are apparent easements, while an easement of not
building beyond a certain height is non-apparent.
In this case, the presence of railroad tracks for the passage of petitioners trains denotes the existence of an
apparent but discontinuous easement of right of way. And under Article 622 of the Civil Code,
discontinuous easements, whether apparent or not, may be acquired only by title. Unfortunately, petitioner
Bomedco never acquired any title over the use of the railroad right of way whether by law, donation,
testamentary succession or contract. Its use of the right of way, however long, never resulted in its
acquisition of the easement because, under Article 622, the discontinuous easement of a railroad right of
way can only be acquired by title and not by prescription.
To be sure, beginning 1959 when the original 30-year grant of right of way given to petitioner Bomedco
expired, its occupation and use of Cadastral Lot No. 954 came to be by mere tolerance of the respondent
heirs. Thus, upon demand by said heirs in 1989 for the return of the subject land and the removal of the
railroad tracks, or, in the alternative, payment of compensation for the use thereof, petitioner Bomedco
which had no title to the land should have returned the possession thereof or should have begun paying
compensation for its use.
SOLID MANILA CORP. vs. BIO HONG TRADING CO.- Easement and Servitudes
Servitudes are merely accessories to the tenement of which they form part, and even if they are possessed
of a separate juridical existence, they cannot be alienated from the tenement or mortgaged separately.
Note: In a personal servitude, there is no "owner of a dominant tenement" to speak of, and the easement
pertains to persons without a dominant estate, in this case, the public at large. (Merger, which presupposes
ownership, is not possible.)
FACTS:
Solid Manila Corp. is the owner of a parcel of land located in Ermita. The same lies in the vicinity of
another parcel registered under Bio Hong Trading whose title came from a prior owner. In the deed of sale
between Bio Hong and the vendor, 900 sqm of the lot was reserved as an easement of way.
The construction of the private alley was annotated on Bio Hongs title stating among other things "(6)
That the alley shall remain open at all times, and no obstructions whatsoever shall be placed thereon; and
(7) that the owner of the lot on which the alley has been constructed shall allow the public to use the same,
and allow the City to lay pipes for sewer and drainage purposes, and shall not act (sic) for any indemnity
for the use thereof
The petitioner claims that ever since, it (along with other residents of neighboring estates) made use of the
above private alley and maintained and contributed to its upkeep, until sometime in 1983, when, and over
its protests, the private respondent constructed steel gates that precluded unhampered use.
On December 6, 1984, the petitioner commenced suit for injunction against the private respondent, to
have the gates removed and to allow full access to the easement.
The trial court ordered Bi Hong to open the gates but the latter argued that the easement has been
extinguished by merger in the same person of the dominant and servient estates upon the purchase of the
property from its former owner.
CA reversed holding that an easement is a mere limitation on ownership and that it does not impair the
private respondent's title, and that since the private respondent had acquired title to the property, "merger"
brought about an extinguishment of the easement.
Thus, Solid went to the SC alleging that the very deed of sale executed between the Bio Hong and the
previous owner of the property "excluded" the alley in question, and that in any event, the intent of the
parties was to retain the "alley" as an easement notwithstanding the sale.
[While the case was pending, Bio Hong asked the RTC to cancel the annotation in question, which it
granted subject to the final outcome of the prior case.]
ISSUE:
1) Whether or not easements may be alienated (sold) from the tenement or mortgaged separately
2) Whether or not the easement had been extinguished by merger.
HELD: NO to both
1) The sale included the alley. The court rejected Solids contention that the alley was not included in the
sale. It was included but there was a limitation on its use-the easement. As a mere right of way, it cannot
be separated from the tenement and maintain an independent existence. (Art. 617)
Even though Bio Hong acquired ownership over the property including the disputed alley as a result
of the conveyance, it did not acquire the right to close that alley or otherwise put up obstructions thereon
and thus prevent the public from using it, because as a servitude, the alley is supposed to be open to the
public.
2) No genuine merger took place as a consequence of the sale in favor of the private respondent
corporation. According to the Civil Code, a merger exists when ownership of the dominant and servient
estates is consolidated in the same person. Merger requires full ownership of both estates.
Note that The servitude in question is a personal servitude (established for the benefit of a community, or
of one or more persons to whom the encumbered estate does not belong). In a personal servitude, there is
therefore no "owner of a dominant tenement" to speak of, and the easement pertains to persons without a
dominant estate, in this case, the public at large. Thus, merger could not have been possible.
ABELLANA vs. CA- Easements of Right of Way
Easements of right of way may not be acquired by prescription because it is not a continuous easement.
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FACTS:
Petitioners are owners of a parcel of land on the NW side of Nonoc Subdivision, Cebu. They sued to
establish an easement of a right of way over a subdivision road, which they claim theyve acquired
through prescription since their ancestors have been using these since time immemorial.
They pray that the concrete wall surrounding the village be taken down to allow easy access to the public
highway.
RTC found for the petitioners. CA reversed, averring that road lots in subdivisions are private property
and may only be used as a public highway once acquired by the government through donation, purchase
or expropriation.
ISSUE:
Whether or not the easement of a right of way may be acquired by prescription?
HELD:
No. Art. 620 of the Civil Code provides that only continuous and apparent easements may be acquired by
prescription. The easement of a right of way cannot be considered continuous because its use is at
intervals and is dependent on the acts of man
COSTABELLA CORPORATION V COURT OF APPEALS 193 scra 333
1. CIVIL LAW; EASEMENT; RIGHT OF WAY; CANNOT BE ACQUIRED BY PRESCRIPTION. It
is already well-established that an easement of right of way is discontinous and as such cannot be acquired
by prescription.
2. ID.; ID.; ID.; REQUISITES OF COMPULSORY DEMAND THEREOF. Based on Articles 649 and
650 of the New Civil Code, the owner of the dominant estate may validly claim a compulsory right of way
only after he has established the existence of four requisites, to wit: (1) the (dominant) estate is surrounded
by other immovables and is without adequate outlet to a public highway; (2) after payment of the proper
indemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of way claimed is at
a point least prejudicial to the servient estate. Additionally, the burden of proving the existence of the
foregoing pre-requisites lies on the owner of the dominant estate.
FACTS: It is admitted that the Costabella Corp. owns the real estate propertiesdesignated as Lots Nos.
5122 and 5124 of the Opon Cadastre, situated at Sitio Buyong, Maribago, Lapu-Lapu City, on which it
had constructed a resort and hotel. The private respondents, on the other hand, are the owners of adjoining
properties. Before the petitioner began the construction of its beach hotel, the private respondents, in
going to and from their respective properties and the provincial road, passed through a passageway which
traversed the petitioner's property. In 1981, the petitioner closed the aforementioned passageway when it
began the construction of its hotel, but nonetheless opened another route across its property through which
the private respondents, as in the past, were allowed to pass. (Later, or sometime in August, 1982, when it
undertook the construction of the second phase of its beach hotel, the petitioner fenced its property thus
closing even the alternative passageway and preventing the private respondents from traversing any part
of it.)
As a direct consequence of these closures, an action for injunction with damages was filed against the
petitioner by the private respondents on September 2, 1982 before the then Court of First Instance of
Cebu. In their complaint, the private respondents assailed the petitioner's closure of the original
passageway which they (private respondents) claimed to be an "ancient road right of way" that had been
existing before World War II and since then had been used by them, the community, and the general
public, either as pedestrians or by means of vehicles, in going to and coming from Lapu-Lapu City and
other parts of the country. The private respondents averred that by closing the alleged road right of way in
question, the petitioner had deprived them access to their properties and caused them damages. In the
same complainant, the private respondents likewise alleged that the petitioner had constructed a dike on
the beach fronting the latter's property without the necessary permit, obstructing the passage of the
residents and local fishermen, and trapping debris and flotsam on the beach. They also claimed that the
debris and flotsam that had accumulated prevented them from using their properties for the purpose for
which they had acquired them.
Petitioners contention: petitioner denied the existence of an ancient road through its property and
counter-averred, among others, that it and its predecessors-in-interest had permitted the temporary,
intermittent, and gratuitous use of, or passage through, its property by the private respondents and others
by mere tolerance and purely as an act of neighborliness. It justified the walling in of its property in view
of the need to insure the safety and security of its hotel and beach resort, and for the protection of the
privacy and convenience of its hotel patrons and guests. At any rate, the petitioner alleged, the private
respondents were not entirely dependent on the subject passageway as they (private respondents) had
another existing and adequate access to the public road through other properties. With respect to the dike
it allegedly constructed, the petitioner stated that what it built was a breakwater on the foreshore land
fronting its property and not a dike as claimed by the private respondents. Moreover, contrary to the
private respondents' accusation, the said construction had benefited the community especially the
fishermen who used the same as mooring for their boats during low tide. The quantity of flotsam and
debris which had formed on the private respondents' beach front on the other hand were but the natural
and unavoidable accumulations on beaches by the action of the tides and movement of the waves of the
sea. The petitioner's answer then assailed the private respondents' complaint for its failure to implead
as defendants the owners of the other properties supposedly traversed by the alleged ancient road right
way, indispensable parties without whom no final adjudication of the controversy could be rendered.
Now before us, the petitioner contends that the decision of the respondent appellate court is grossly
erroneous and not in accord with the provisions of Articles 649 and 650 of the Civil Code on easements
and the prevailing jurisprudence on the matter.
The petition is meritorious.
ISSUE/HELD: WON Costabella is obliged to open its properties for the use of the private respondents.
NEGATIVE. Easement of right of way cannot be acquired by prescription and the respondents were not
able to establish a valid claim of compulsory right.
RATIO DICIDENDI
It is already well-established that an easement of right of way, as is involved here, is discontinuous and as
such cannot be acquired by prescription. Insofar therefore as the appellate court adhered to the foregoing
precepts, it stood correct. Unfortunately, after making the correct pronouncement, the
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respondent Appellate Court did not order the reversal of the trial court's decision and the dismissal of the
complaint after holding that no easement had been validly constituted over the petitioner's property.
Instead, the AppellateCourt went on to commit a reversible error by considering the passageway in issue
as a compulsory easement which the private respondents, as owners of the "dominant" estate, may demand
from the petitioner the latter being the owner of the "servient" estate.
In case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by
others and for the gathering of its crops through the servient estate without a permanent way, the
indemnity shall consist in the payment of the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts.
Art. 650. The easement of right of way shall be established at the point least prejudicial to the
servient estate, and, insofar as consistent with this rule, where the distance from the dominant estate
to a public highway may be the shortest.
Based on the foregoing, the owner of the dominant estate may validly claim a compulsory right of way
only after he has established the existence of four requisites, to wit: (1) the (dominant) estate is surrounded
by other immovables and is without adequate outlet to a public highway; (2) after payment of the proper
indemnity; (3) the isolation was not due to the proprietor's own acts; and (4) the right of way claimed is at
a point least prejudicial to the servient estate. Additionally, the burden of proving the existence of the
foregoing pre-requisites lies on the owner of the dominant estate.
." Hence, when there is already an existing adequate outlet from the dominant estate to a public highway,
even if the said outlet, for one reason or another, be inconvenient, the need to open up another servitude is
entirely unjustified. For to justify the imposition of an easement or right of way, "there must be a real, not
a fictitious or artificial necessity for it."
Hence, the private respondents' properties cannot be said to be isolated, for which a compulsory easement
is demandable. Insofar therefore as the Appellate Court declared the case to be proper as a controversy for
a compulsory right of way, this Court is constrained to hold that it was in error.
Servitudes of right of way are an ancient concept, which date back to the iter, actus, and via of the
Romans. They are demanded by necessity, that is, to enable owners of isolated estates to make full use of
their properties, which lack of access to public roads has denied them. Under Article 649 of the Civil
Code, they are compulsory and hence, legally demandable, subject to indemnity and the concurrence of
the other conditions above-referred to.
But while a right of way is legally demandable, the owner of the dominant estate is not at liberty to impose
one based on arbitrary choice. Under Article 650 of the Code, it shall be established upon two criteria: (1)
at the point least prejudical to the servient state; and (2) where the distance to a public highway may be the
shortest. According, however, to one commentator, "least prejudice" prevails over "shortest distance." Yet,
each case must be weighed according to its individual merits, and judged according to the sound discretion
of the court. "The court," says Tolentino, "is not bound to establish what is the shortest; a longer way may
be established to avoid injury to the servient tenement, such as when there are constructions or walls
which can be avoided by a roundabout way, or to secure the interest of the dominant owner, such as when
the shortest distance would place the way on a dangerous decline."
COSTABELLA CORP. VS. CA- Easement Right of Way
The convenience of the dominant estate is not the gauge for the grant of compulsory right of way but
rather, it should satisfy all four requisites (emphasis on 1st requisite- it should be merely for convenience
but it must be due to the fact that the dominant estate does not have an adequate outlet to a public
highway.
FACTS:
Petitioners owned a lot wherein they started constructing their beach hotel. Before such construction, the
private respondent, in going to and from their respective properties and the provincial road, passed
through a passageway which traversed the petitioners property. As a result of the construction, this
passageway, including the alternative route, was obstructed. Private respondent filed for injunction plus
damages. In the same complaint the private respondents also alleged that the petitioner had constructed a
dike on the beach fronting the latters property without the necessary permit, obstructing the passage of
the residents and local fishermen, and trapping debris of flotsam on the beach. The private respondent also
claim that the have acquired the right of way through prescription. They prayed for the re-opening of the
ancient road right of way (what they called the supposed easement in this case) and the destruction of
the dike. Petitioner answered by saying that their predecessor in interests act of allowing them to pass
was gratuitous and in fact, they were just tolerating the use of the private respondents. CA ruled in favor
of the private respondents.
ISSUE:
1) Whether or not easement of right and way can be acquired through prescription?
2) Whether or not the private respondents had acquired an easement of right of way in the form of a
passageway, on the petitioners property?
RULING:
1) NO. Easement of right of way is discontinuous thus it cannot be subject to acquisitive prescription.
2) NO. one may validly claim an easement of right of way when he has proven the: (1) the dominant estate
is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity
has been paid; (3) the isolation was not due to acts of the proprietor of the dominant estate; (4) the right of
way claimed is at point least prejudicial to the servient estate. The private respondent failed to prove that
there is no adequate outlet from their respective properties to a public highway; in fact the lower court
confirmed that there is another outlet for the private respondents to the main road (yet they ruled in favor
of the private respondents). Apparently, the CA lost sight of the fact that the convenience of the dominant
estate was never a gauge for the grant of compulsory right of way. There must be a real necessity and not
mere convenience for the dominant estate to acquire such easement. Also, the private respondents made
no mention of their intention to indemnify the petitioners. The SC also clarified that least prejudicial
prevails over shortest distance (so shortest distance isnt necessarily the best choice.)
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 Durante la inspeccion ocular, los demandantes y demandado, Antonio Legaspi, llegaron a un
acuerdo:
xxxxxxxxxxxxxxx
1. Los demandantes no instalaran en su terreno su taller de reparacion de vehiculos de motor.
G.R. No. L-17482 March 31, 1966
2. Los demandantes pueden construir su garaje dentro de su terreno para su jeep (AC), pero no
GENOVEVA R. JABONETE, ET AL., plaintiffs, los tendran parados en la calle privada del demandados construida por este en su terreno a lo
vs. largo del terreno de los demandantes;
JULIANA MONTEVERDE, ET AL., defendants,
ANTONIO LEGASPI, respondent-appellant, 3. Los demandantes contribuiran a prorata con el demandado los gastos de reparacion de la
DEVELOPMENT BANK OF THE PHILIPPINES, petitioner-appellee, calle privada construida por el referido demandado en su terreno a lo largo del terreno de los
MRS. LUZ ARCILLA, petitioner-intervenor-appellee. demandantes.1wph1.t

Zuo and Mojica for the respondents-appellants. 4. El demandado, Antonio Legaspi, permitira el uso y paso en la calle privada construida por el
Jesus Avancea for the plaintiffs. en su terreno a lo largo del terreno de los demandantes, a estos, su familia, sus amigos, chofers,
servidumbre y de sus jeeps.
REGALA, J.:
5. Para los fines del uso de la calle, el demandado permitira a los demandantes, frente de la
This is an appeal from an order of the Court of First Instance of Davao, dated March 11, 1960, finding the casa de estos, abrir una puerta de 4 metros de ancho en el corral construido por el demandado
respondent-appellant, Antonio Legaspi, guilty of contempt of court, and imposing upon him a fine of que separa la calle privada y el terreno de los demandantes, a su (demandantes) costa; sus hojas
P100. tendran por dentro, que los demandantes tendran cerradas para evitar que los nios, hijos de los
inquilinos del demandado tengan acceso a los jeeps de los demandantes, cuyo garaje tendran
dentro de su (demandantes) terreno.
On March 11, 1954, the Court of First Instance of Davao, in view of its finding in Case No. 824,
entitled Jabonete vs. Monteverde, et al., that Antonio Legaspi acquired the lot in question with the
knowledge that a "gravamen" or easement of right of way existed thereon, promulgated a decision the El Juzgado ordena a las partes litigantes complan estrictamente con lo estipulado; de los
dispositive portion of which reads: contrario, los mismos estaran sujetos a las ordenes de este Juzgado.

Ordena al demandado Antonio Legaspi la demolicion de la parte del corral construido a lo As a result of the above agreement and Order of May 24, 1954, the defendant abandoned the prosecution
largo de su terreno que impide a lote demandantes tener acceso con la vereda que communica of his appeal. At the same time, both parties complied with its terms until the plaintiffs, unable to continue
con la carretera principal, Tomas Claudio. with their repair shop, transferred to another place in December 1959 whereupon the defendant
reconstructed his fence and its footing, closing thereby the opening previously made by the plaintiffs.

Declara que los demandantes tienen derecho el uso de la vereda (Exh. A-3), de 3 metros de
ancho, unico paso que disponen para communicarse con la Calle Tomas Claudio, para el paso
de sus jeeps, y los vehiculos, reparados que entran y salen del taller de reparacion de aquellos.
The respondent-appellant received a copy of the decision on May 12, 1954. Two days later, May 14, 1954
he filed his notice of appeal therefrom. On May 21, 1954 however, upon a previous motion of the
plaintiffs, the lower court issued an order granting discretionary execution of the said decision. In view of
this last mentioned order, the plaintiffs immediately proceeded to the premises in question and opened in
the fence of the defendant Antonio Legaspi a sufficient opening for the passage of men and vehicles. Even
then, however, the defendant filed with the court below on that very same day, May 21, 1954, a motion for
the reconsideration of the order granting discretionary execution. Thereafter, and upon the lower court's
suggestion, the parties entered into an amicable agreement which was later embodied in an order or "auto"
dated May 24, 1954, to wit:
A raiz de la mocion del demandado pidiendo antre otras cosas, la reconsideracion de la orden
de ejecucion de la decision dictada en esta causa, el 22 del Mayo de 1954, el Juez que preside
esta sala se constituyo para una inspeccion ocular en el lugar en conflicto.
In the course of time, the plaintiffs' lot was foreclosed by the Development Bank of the Philippines (DBP)
which, later still, conveyed it under a conditional sale to Mrs. Luz Arcilla. On her acquisition of the said
lot, Mrs. Arcilla demanded of the defendant the re-opening of the fence in question as it was her plan to
construct her house in the said lot. When the defendant refused, the Development Bank filed with the
lower court a petition to hold the said defendant in contempt. To this petition, Mrs. Luz Arcilla later
intervened and was so allowed by the lower court. The Development Bank of the Philippines and Mrs.
Luz Arcilla contended that the refusal of the defendant to cause or allow the making of an opening in his
fence was a defiance of the said court's decision of March 11, 1954 and was, therefore, contemptuous.
After due hearing, the lower court sustained the petitioners and found the defendant guilty of contempt
with orders "to pay a fine of One Hundred Pesos (P100.00) and to open the vereda or alley leading to the
lot owned by the Development Bank of the Philippines and conveyed to Mrs. Luz S. Arcilla under a
conditional deed of sale, otherwise he should be imprisoned until he does so." Thus, the instant appeal.
The respondent-appellant maintains that the lower court erred in finding him guilty of contempt because:
1. The decision of March 11, 1954 was novated by the order of May 24, 1954. Consequently,
he could not have violated the former decree since with its novation it ceased to have any legal
effect.

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 2. Even assuming that the said decision was not novated by the subsequent order of May 24,
1954, still he could not be deemed to have violated the said decision because the same never
became final and executory. The respondent-appellant argued that since the decision of March
11, 1954 ordered the opening of a right of way in his property without providing for this
corresponding compensation to him, contrary to Article 649 of the Civil Code, 1 there was in
the said decision "a void which ought to be filled or to be done in order to completely dispose
of the case. It was not clear, specific and definitive," and consequently, a judgment that could
not have acquired finality.
3. The right to file contempt proceedings against him, with respect to the decrees contained in
the decision of March 11, 1954, has prescribed. The respondent-appellant conceded that there
is no prescriptive period for the institution of contempt proceedings. However, he contended
that inasmuch as contempt under Rule 64 of the Rules of Court is punishable by arresto mayor,
it should prescribe in five years just as crimes for which the said penalty is imposed prescribe,
under the Penal Code, in five years.
Without passing on the merits or demerits of the foregoing arguments, this Court believes that the order
finding the respondent-appellant guilty of contempt should be reversed. It is clear that the order of May
24, 1954 superseded and was fully intended by the lower court to modify or stand in substitution of the
decision of March 11, 1954. More than the expression of the parties amicable agreement on the dispute,
the said order was the lower court's resolution of the respondent-appellant's motion for reconsideration of
the decision of March 11, 1954. In the determination, therefore, of the said appellant's obligation relative
to the easement in question, the latter and not the decision of March 11, 1954 is the proper point in
reference.
Under the aforesaid order of May 24, 1954, the easement awarded or secured by the lower court to the
plaintiffs was strictly a personal one. The right of way granted was expressly limited to the latter and their
"family, friends, drivers, servants and jeeps." In the very language of the agreement the following appears:
El demandado Antonio Legaspi, permitira el uso y paso en la calle privada construida por el en
su terreno a lo largo del terreno de los demandantes, a estos, su familia, sus amigos, chofers,
servidumbre y de sus jeeps.
The servitude established was clearly for the benefit alone of the plaintiffs and the persons above
enumerated and it is clear that the lower court, as well as the parties addressed by the said order, did not
intend the same to pass on to the plaintiffs'
successors-in-interest. In other words, the right acquired by the original plaintiffs was a personal servitude
under Article 614 of the Civil Code, and not a predial servitude that inures to the benefit of whoever owns
the dominant estate.
In resisting the extension of the aforementioned easement to the latter, the plaintiffs' successors-in-interest,
the respondent-appellant, therefore, was not defying the decision of March 11, 1954 which was then no
longer subsisting, nor the order of May 24, 1954 since the said successors-in-interest had no right
thereunder.
Another evidence that the servitude in question was personal to the plaintiffs is the fact that the same was
granted to the latter without any compensation to the respondent-appellant.
Wherefore, the order of the lower court dated March 11, 1960 finding the respondent-appellant guilty of
contempt is hereby reversed, without pronouncement as to costs.
Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ.,
concur.
Bautista Angelo and Dizon, JJ., took no part.
FIRST DIVISION
[G.R. No. 97039. April 24, 1992.]
CONCORDIO ABELLANA, SR., PEDRO E. MENDEZ, VERANO BADANA, CONCORDIO
ABELLANA, JR., TEODOLFO ABELLANA, MUSSULINI BUCAO, REMEDIOS GARCIANO,
ALFREDO SY, JUANITO JABELLANA, CATALINO LABANDERO, PURISIMO JABELLANA,
ANDRES LASTIMOSA, LUCRESIA VDA. DE BENTE, PAULA VDA. DE BACUS, ARTURO
JABELLANA, FLORENTINO LARIOSA, LEODY DE LA PEA, PELAGIA JABELLANA, FE
GOCELA, SEVERINO QUINAMADA and NARCISA LASTIMOSA, Petitioners, v. HON. COURT
OF APPEALS, ORLANDO P. NAYA, ROSENDO ESTOYE, JR. and the MUNICIPAL
GOVERNMENT OF TALISAY, CEBU, represented by the Mayor and MEMBERS OF THE
SANGGUNIANG BAYAN, Respondents, APOLINARIO ENGUIO, RICO VILLARIN, MARIA
ROSARIO BALBUENA, JOSE TIROL, ASUNCION DE LA PEA, ROGELIO B. GUYOT,
LEONIZA FAUSTINO, MAMERTO ZAMORAS, ANTONIO CAL, VICENTE ALMENDRAS,
MICHAEL SERRANO, EDUARDO PADERNOS, MA. LUZ SANCHEZ, R. CABARERO, OSCAR
NAPOLI and ROBERTO BUENO, intervenors.
Honorato Garciano, for Petitioners.
Ferdinand J . Marcos for private respondents Estoye and intervenors.
SYLLABUS
1. CIVIL LAW; PROPERTY; EASEMENTS; RIGHT OF WAY; NOT ACQUIRABLE BY
PRESCRIPTION; REASON THEREFOR. 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 elses land (4 Maresa 597; Haffman v. Shoemaker, 71 SE 198, both cited on p. 454,
Vol. 2, 6th Ed., Paras, Civil Code of the Philippines). Hence, a right of way is not acquirable by
prescription (Cuaycong, Et. Al. v. Benedicto, Et Al., 27 Phil. 781; Ronquillo, Et. Al. v. Roco, Et Al., 103
Phil. 84; Ayala de Roxas v. Case, 8 Phil. 197).
2. ID.; ID.; ID.; ORDINANCE DECLARING SUBDIVISION ROADS OPEN TO PUBLIC USE WHEN
DEEMED NECESSARY BY THE PROPER AUTHORITIES; LIMITATION; CASE AT BAR. The
municipal ordinances which declared subdivision roads open to public use "when deemed necessary by
the proper authorities" 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 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 roads. 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."
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 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. 957 through the
DECISION National Housing Authority which has exclusive jurisdiction to regulate subdivision and condominium
projects;chanrobles virtual lawlibrary

GRIO-AQUINO, J.: 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
The petitioners who live on a parcel of land abutting the northwestern side of the Nonoc Homes homeowners but also for the general public, and Section 5 of Ordinance No. 5, Series of 1974, which
Subdivision, sued to establish an easement of right of way over a subdivision road which, according to the provides that "those subdivision road lots whose use by the public are (sic) deemed necessary by the
petitioners, used to be a mere footpath which they and their ancestors had been using since time proper authorities shall be made available for public use" (p. 7, Rollo); and
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 3. in not determining whether or not the closure of the dead ends of road lots 1 and 3 of the Nonoc Homes
the subdivision road which gives the subdivision residents access to the public highway. They asked that Subdivision by the private respondents, Estoye and Naya, was legal.
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.chanrobles virtual lawlibrary 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
The private respondents denied that there was a pre-existing footpath in the place before it was developed raises merely factual issues which are not reviewable by this Court under Rule 45 of the Rules of Court,
into a subdivision. They alleged furthermore that the Nonoc Subdivision roads are not the shortest way to and that, in any event, no reversible error was committed by the Court of Appeals in dismissing the
a public road for there is a more direct route from the petitioners land to the public highway. 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
After trial, the trial court rendered judgment disposing as follows:jgc:chanrobles.com.ph 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
"WHEREFORE, judgment is hereby rendered, and, accordingly, defendants Orlando P. Naya and a public road.
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 Petitioners assumption that an easement of right of way is continuous and apparent and may be acquired
open for the use of the plaintiffs and the general public, within fifteen (15) days from finality of this by prescription under Article 620 of the Civil Code, is erroneous. The use of a footpath or road may be
judgment. The complaint as against defendant Municipal Government of Talisay, Cebu is ordered apparent but it is not a continuous easement because its use is at intervals and depends upon the acts of
dismissed. All counterclaims are ordered dismissed. No pronouncement as to costs." (p. 15, Rollo.) man. It can be exercised only if a man passes or puts his feet over somebody elses land (4 Manresa 597;
Haffman v. Shoemaker, 71 SE 198, both cited on p. 454, Vol. 2, 6th Ed., Paras, Civil Code of the
However, on appeal by the defendants and intervenors (now private respondents), the appellate court on Philippines). Hence, a right of way is not acquirable by prescription (Cuaycong, Et. Al. v. Benedicto, Et
October 17, 1990, reversed the appealed judgment. It found that:jgc:chanrobles.com.ph Al., 37 Phil. 781; Ronquillo, Et. Al. v. Roco, Et Al., 103 Phil. 84; Ayala de Roxas v. Case, 8 Phil. 197).

"As borne out by the records of the case, the abovementioned requisites essential for the grant of an Neither may petitioners invoke Section 29 of P.D. 957 which provides:jgc:chanrobles.com.ph
easement of right of way are not obtaining in this case hence no alternative presents itself except reversal
of the judgment below . . . "SECTION 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
"However, the foregoing is without prejudice to the filing of the appropriate action by the proper way must be developed and maintained according to the requirement of the government authorities
authorities. Records bear that attention of the Municipal Mayor of Talisay, was already called by the concerned."cralaw virtua1aw library
Provincial Fiscal to Opinion No. 172, Series of 1975, of the Department of Justice wherein the Acting
Secretary of Justice opined that road lots in a private subdivision are private property and should be The above provision applies to the owner or developer of a subdivision (which petitioners are not) without
acquired by the government by donation, purchase or expropriation if they are to be utilized for a public access to a public highway.
highway . . .
The petitioners allegation that the footpaths which were converted to subdivision roads have acquired the
x x x 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.chanrobles lawlibrary : rednad
"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, The municipal ordinances which declared subdivision roads open to public use "when deemed necessary
Rollo.) 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
In an order dated January 9, 1991, the appellate court denied petitioners motion for reconsideration of the outsiders a right to open the subdivision walls so they can enter the subdivision from the back. As the
aforesaid decision. Hence, this petition for review in which the petitioners allege that the Court of Appeals private respondents pointed out in their Comment:jgc:chanrobles.com.ph
erred:chanrob1es virtual 1aw library
"The closure of the dead ends of road lots 1 and 3 is a valid exercise of proprietary rights. It is for the

7|Page
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 roads. 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.)

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