Abellana, Sr. vs. Court of Appeals

A right of way is not a continuous easement because its use is at intervals and depends upon the acts of man, and thus cannot be acquired by prescription; subdivision road lots in a private subdivision are private property that the government must acquire by donation, purchase, or expropriation if they are to be utilized as public roads.

Petitioners are residents living on a parcel of land abutting the northwestern side of the Nonoc Homes Subdivision in Talisay, Cebu. Private respondents Orlando P. Naya and Rosendo Estoye, Jr. are associated with the subdivision, and the Municipal Government of Talisay, Cebu is also named as a party. The dispute centers on whether petitioners may compel the opening of subdivision road lots—specifically the dead ends of Road Lots 1 and 3—that were closed off by concrete walls erected by the private respondents, thereby cutting off petitioners' claimed access to the public highway through the subdivision.

Petitioners are residents who live on a parcel of land abutting the northwestern side of the Nonoc Homes Subdivision in Talisay, Cebu. According to the petitioners, a footpath existed in the area before it was developed into a subdivision, and they and their ancestors had been using this footpath since time immemorial. They contended that, through this long continued use, they had acquired by prescription an easement of right of way over what are now the subdivision roads, specifically Road Lots 1 and 3, which give subdivision residents access to the public highway.

Private respondents Orlando P. Naya and Rosendo Estoye, Jr. constructed high concrete walls enclosing the subdivision, closing off the dead ends of Road Lots 1 and 3. This construction deprived the petitioners of access to the subdivision road and, through it, to the public highway. Petitioners sought the removal of the walls and the opening of the road for their use.

The private respondents denied that any pre-existing footpath existed in the area before it was developed into a subdivision. They further alleged that the Nonoc Subdivision roads are not the shortest route from the petitioners' land to the public highway, as a more direct route exists. They justified the closure as a valid exercise of proprietary rights undertaken for the protection of subdivision residents from night prowlers and thieves, noting that the public is not denied use of the subdivision roads—users simply must enter through the open ends that connect to the public road, as is common in most subdivisions.

The trial court credited the petitioners' claim and ordered the demolition of the fences at the dead ends of Road Lots 1 and 3, leaving them open for use by the petitioners and the general public. On appeal, the Court of Appeals reversed, finding that the requisites essential for the grant of an easement of right of way under Articles 649 and 650 of the Civil Code were not present. The appellate court further held that subdivision road lots are private property and should be acquired by the government by donation, purchase, or expropriation if they are to be utilized as a public highway, and suggested that the Municipal Government of Talisay may institute the proper action for expropriation.

• Legal Easement by Prescription: Petitioners argued that the easement they claimed is a legal easement established by law under Article 619 of the Civil Code and acquired by them by virtue of a title under Article 620 of the Civil Code and Presidential Decree No. 957, through the National Housing Authority which has exclusive jurisdiction to regulate subdivision and condominium projects.
• Public Street Status of Subdivision Roads: Petitioners maintained that the footpaths and passageways 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 subdivision road lots whose use by the public is deemed necessary by the proper authorities shall be made available for public use.
• Legality of Closure: Petitioners contended that the Court of Appeals erred in not determining whether the closure of the dead ends of Road Lots 1 and 3 by private respondents Estoye and Naya was legal.

• No Pre-existing Footpath: Respondents denied that there was a pre-existing footpath in the place before it was developed into a subdivision.
• Not the Shortest Route: Respondents argued that the Nonoc Subdivision roads are not the shortest way to a public road, as there is a more direct route from the petitioners' land to the public highway.
• Valid Exercise of Proprietary Rights: Respondents maintained that the closure of the dead ends of Road Lots 1 and 3 is a valid exercise of proprietary rights, undertaken for the protection of subdivision residents from night prowlers and thieves, and that the public is not denied use of the subdivision roads—users must simply enter through the open ends that link to the public road, as is common in most subdivisions.

• Nature of Easement and Prescription: Whether the easement of right of way claimed by petitioners is a continuous and apparent easement acquirable by prescription under Articles 619 and 620 of the Civil Code and P.D. No. 957.
• Public Street Status: Whether the footpaths converted into subdivision road lots have acquired the status of public streets under the municipal ordinances of Talisay, Cebu.
• Legality of Closure: Whether the closure of the dead ends of Road Lots 1 and 3 of the Nonoc Homes Subdivision by the private respondents was legal.

• Nature of Easement and Prescription: No. A right of way is not a continuous easement because its use is at intervals and depends upon the acts of man; hence, it is not acquirable by prescription under Article 620 of the Civil Code. P.D. No. 957, Section 29, applies to owners or developers of subdivisions without access to public roads, not to neighboring landowners.
• Public Street Status: No. The municipal ordinances allowing public use of subdivision roads when deemed necessary by proper authorities do not give outsiders the right to open subdivision walls to enter from the back; they merely allow persons other than residents to use the roads once inside the subdivision.
• Legality of Closure: Not reached as a separate legal question. The petition raised merely factual issues not reviewable by the Supreme Court under Rule 45, and no reversible error was committed by the Court of Appeals in dismissing the complaint.

• Nature of Easement and Prescription: 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 was found erroneous. While the use of a footpath or road may be apparent, 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 person passes or puts his feet over somebody else's land. Because a right of way is not continuous, it cannot be acquired by prescription. This conclusion is supported by long-standing jurisprudence including Cuaycong vs. Benedicto, Ronquillo vs. Roco, and Ayala de Roxas vs. Case. Section 29 of P.D. 957, which requires the owner or developer of a subdivision without access to a public road to secure a right of way, was held inapplicable because petitioners are not the owner or developer of the subdivision. Furthermore, whether a footpath previously existed in the area is a factual issue that the Supreme Court, not being a trier of facts, may not determine.

• Public Street Status: The municipal ordinances declaring subdivision roads open to public use "when deemed necessary by the proper authorities" simply allow persons other than subdivision residents to use the roads when they are inside the subdivision. Those ordinances do not confer upon outsiders a right to open subdivision walls so they can enter the subdivision from the back. The closure of the dead ends was recognized as a valid exercise of proprietary rights for the protection of residents, and the public is not denied use of the subdivision roads—users must enter through the open ends that link to the public road.

• Legality of Closure: The petition was found to raise merely factual issues not reviewable by the Supreme Court under Rule 45 of the Rules of Court. In any event, no reversible error was committed by the Court of Appeals in dismissing the complaint on the ground that the requisite conditions for the grant of an easement of right of way under Articles 649 and 650 of the Civil Code do not exist. The appellate court correctly held that road lots in a private subdivision are private property, and the local government should first acquire them by donation, purchase, or expropriation if they are to be utilized as a public road.

• Right of Way as Non-continuous Easement — A right of way may be apparent but 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 person passes or puts his feet over somebody else's land. Because it is not continuous, a right of way cannot be acquired by prescription under Article 620 of the Civil Code. This doctrine is supported by Cuaycong vs. Benedicto, 37 Phil. 781; Ronquillo vs. Roco, 103 Phil. 84; and Ayala de Roxas vs. Case, 8 Phil. 197.

• Subdivision Road Lots as Private Property — Road lots in a private subdivision are private property. The local government must first acquire them by donation, purchase, or expropriation if they are to be utilized as a public road. This principle traces to Department of Justice Opinion No. 172, Series of 1975, which the Court cited with approval.

• "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." — This passage states the ratio decidendi on why a right of way cannot be acquired by prescription, distinguishing apparent from continuous easements.

• "Hence, a right of way is not acquirable by prescription." — The direct legal conclusion flowing from the non-continuous nature of a right of way, frequently cited in subsequent easement jurisprudence.

• "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." — This affirms the private character of subdivision road lots and the modes by which the government may convert them to public use.

• Cuaycong vs. Benedicto, 37 Phil. 781 — Cited as authority for the proposition that a right of way is not acquirable by prescription, being a non-continuous easement.
• Ronquillo vs. Roco, 103 Phil. 84 — Cited as further authority that a right of way cannot be acquired by prescription.
• Ayala de Roxas vs. Case, 8 Phil. 197 — Cited as additional authority supporting the rule that a right of way is not acquirable by prescription.

• Article 619, Civil Code — Cited by petitioners as basis for a legal easement established by law; the Court did not sustain this invocation.
• Article 620, Civil Code — Governs acquisition of continuous and apparent easements by prescription; the Court held that a right of way is not continuous and therefore Article 620 does not apply.
• Articles 649 and 650, Civil Code — Set forth the requisites for the grant of a legal easement of right of way; the Court of Appeals found these requisites absent, and the Supreme Court affirmed.
• Section 29, Presidential Decree No. 957 — Requires the owner or developer of a subdivision without access to a public road to secure a right of way; held inapplicable because petitioners are not the owner or developer of the subdivision.
• Section 4, Municipal Ordinance No. 1, Series of 1969 (Talisay, Cebu) — Provides that subdivision roads shall be used not only for the exclusive use of homeowners but also for the general public; held not to give outsiders the right to open subdivision walls to enter from the back.
• Section 5, Ordinance No. 5, Series of 1974 (Talisay, Cebu) — Provides that subdivision road lots whose use by the public is deemed necessary by proper authorities shall be made available for public use; held to allow public use of roads inside the subdivision but not to confer a right to breach subdivision walls.
• Rule 45, Rules of Court — Governs petitions for review on certiorari to the Supreme Court; the Court found that the petition raised merely factual issues not reviewable under this rule.

Narvasa, C.J., Cruz, J., and Medialdea, J., concurred. Bellosillo, J., was on leave.