518 SUPREME COURT REPORTS ANNOTATED

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

*
G.R. No. 124699. July 31, 2003.

BOGO-MEDELLIN MILLING CO., INC., petitioner, vs. COURT

OF APPEALS and HEIRS OF MAGDALENO VALDEZ, SR.,
respondents.

Civil Law; Possession; Property; Prescription; Possession, to

constitute the foundation of a prescriptive right, must be possession under a
claim of title, that is, it must be adverse.—There is no dispute that the
controversial strip of land has been in the continuous possession of
petitioner since 1929. But possession, to constitute the foundation of a
prescriptive right, must be possession under a claim of title, that is, it must
be adverse. Unless coupled with the element of hostility towards the true
owner, possession, however long, will not confer title by prescription.
Same; Same; Same; Same; Easement; An acknowledgement of the
easement is an admission that the property belongs to another.—An
easement or servitude is a real right, constituted on the corporeal immovable
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 on the land but grants no title thereto. Therefore, an
acknowledgment of the easement is an admission that the property belongs
to another.
Same; Same; Same; Same; Mere material possession of land is not
adverse possession as against the owner and is insufficient to vest title,
unless such possession is accompanied by the intent to possess as an owner.
—The mere expiration of the period of easement in 1959 did not convert
petitioner’s possession into an adverse one. Mere material possession of
land is not adverse possession as against the owner and is insufficient to vest
title, unless such possession is accompanied by the intent to possess as an
owner. There should be a hostile use of such a nature and exercised under
such circumstances as to manifest and give notice that the possession is
under a claim of right.
 Same; Same; Same; Same; Acts of possessory character executed by
virtue of license or tolerance of the owner, no matter how long, do not start
the running of the period of prescription.—In the absence of an express
grant by the owner, or conduct by petitioner sugar mill from which an
adverse claim can be implied, its possession of the lot can only be presumed
to have continued in the same character as when it was acquired

_______________

* THIRD DIVISION.

519

VOL. 407, JULY 31, 2003 519

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

(that is, it possessed the land only by virtue of the original grant of the
easement of right of way), or was by mere license or tolerance of the owners
(respondent heirs). It is a fundamental principle of law in this jurisdiction
that acts of possessory character executed by virtue of license or tolerance
of the owner, no matter how long, do not start the running of the period of
prescription.
Same; Same; Same; Same; Laches; It is not just the lapse of time or
delay that constitutes laches.—It is not just the lapse of time or delay that
constitutes laches. The essence of laches is the failure or neglect, for an
unreasonable and unexplained length of time, to do that which, through due
diligence, could or should have been done earlier, thus giving rise to a
presumption that the party entitled to assert it had either abandoned or
declined to assert it. Its essential elements are: (a) conduct on the part of the
defendant, or of one under whom he claims, giving rise to the situation
complained of; (b) delay in asserting complainant’s rights after he had
knowledge of defendant’s acts and after he has had the opportunity to sue;
(c) lack of knowledge or notice by defendant that the complainant will
assert the right on which he bases his suit; and (d) injury or prejudice to the
defendant in the event the relief is accorded to the complainant.
Same; Same; Same; Same; Same; There is no absolute rule on what
constitutes laches; The question of laches is addressed to the sound
discretion of the court and each case must be decided according to its
particular circumstances.—Further, there is no absolute rule on what
constitutes laches. It is a rule of equity and applied not to penalize neglect or
sleeping on one’s rights but rather to avoid recognizing a right when to do
so would result in a clearly unfair situation. The question of laches is
addressed to the sound discretion of the court and each case must be decided
according to its particular circumstances. It is the better rule that courts,
under the principle of equity, should not be guided or bound strictly by the
statute of limitations or the doctrine of laches if wrong or injustice will
result.
Same; Same; Same; Same; Easements are either continuous or
discontinuous.—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.

PETITION for review on certiorari of a decision of the Court of

Appeals.

The facts are stated in the opinion of the Court.

520

520 SUPREME COURT REPORTS ANNOTATED

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

     Garcia, Neri & Associates for petitioner.

     Zosa & Quijano Law Offices for private respondents.

CORONA, J.:

This is an appeal by certiorari under Rule 451 of the Rules of Court

seeking to annul and set aside the decision dated November 17,
1995 of the Court of Appeals, Tenth Division, which reversed the
2
decision dated November 27, 1991 of the Regional Trial Court of
Cebu City, Branch IX, which ruled in favor of herein petitioner,
Bogo-Medellin Milling Company, Inc. and dismissed herein private
respondents’ complaint for payment of compensation and/or
recovery of possession of real property and damages with
application for restraining order or preliminary injunction; and its
resolution dated March 2, 1996 denying petitioner’s motion for
reconsideration.
The antecedent facts follow.
Magdaleno Valdez, Sr., father of herein private respondents
Sergio Valdez, Angelina Valdez-Novabos, Teresita Argawanon-
Mangubat and Daylinda Argawanon-Melendres (hereafter the heirs),
purchased from Feliciana Santillan, on December 9, 1935, a parcel
of unregistered land covered by Tax Declaration No. 3935 with an
area of one hectare, 34 ares and 16 centares, located in Barrio
3
Dayhagon, Medellin, Cebu. He took possession
4
of the property and
declared it for tax purposes in his name.
Prior to the sale, however, the entire length of the land from north
to south was 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 petitioner’s sugar mill.
When Magdaleno Valdez, Sr. passed away in 1948, herein private
respondents inherited the land. However, unknown to them,
Bomedco was able to have the disputed middle lot which was occu-

_______________

1 Penned by Associate Justice Celia Lipana-Reyes and concurred in by Associate

Justices Alfredo L. Benipayo and Corona Ibay-Somera.
2 Penned by Presiding Judge Benigno G. Gaviola.
3 Exhibit “A”, Folder of Plaintiffs’ Exhibits, p. 1.
4 Exhibits “B”, “B-1”, “B-4” and “D”, Folder of Plaintiffs’ Exhibits, pp. 2-4, 6.

521

VOL. 407, JULY 31, 2003 521

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

pied by the railroad tracks placed in its name in the Cadastral Survey
of Medellin, Cebu in 1965. The entire subject land was divided into
three, namely, Cadastral Lot Nos. 953, 954 and 955. Lot Nos. 953
and 955 remained in the name of private respondents. However, Lot
No. 954, the narrow lot where the railroad tracks lay, was claimed by
5
Bomedco as its own and was declared for tax purposes in its name.
It was not until 1989 when private respondents discovered the
aforementioned claim of Bomedco on inquiry with the Bureau of
Land. Through their lawyer, they immediately demanded the legal
basis for Bomedco’s claim over Cadastral Lot No. 954 but their
letter of inquiry addressed to petitioner went unheeded, as was their
subsequent demand for payment of compensation for the use of the
6
land.
On June 8, 1989, respondent heirs filed a “Complaint for
Payment of Compensation and/or Recovery of Possession of Real
Property and Damages with Application for Restraining Or-
der/Preliminary Injunction”
7
against Bomedco before the Regional
Trial Court of Cebu. Respondent heirs alleged that, before she sold
the land to Valdez, Sr. in 1935, Santillan granted Somedco, in 1929,
a railroad right of way for a period of 30 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
8
land because one of them was then an employee
of the company.
In support of the complaint, they presented an ancient document
—an original copy of the deed of sale written in Spanish and dated
9
December 9, 1935 —to evidence the sale of the land 10
to Magdaleno
Valdez, Sr.; several original real11
estate tax receipts including Real
Property Tax Receipt No. 3935 dated 1922 in the name of Graciano
de los Reyes, husband
12
of Feliciana Santillan, and Real Property Tax
Receipt No. 0949 dated 1963 in the name of

_______________

5 Exhibit “H”, Folder of Plaintiffs’ Exhibits, p. 11.

6 Exhibits “E” and “F”, Id.,at pp. 7, 8-9.
7 Records, pp. 1-7.
8 Exhibit “Y”, Folder of Pllaintiff’s Exhibits, pp. 102-103.
9 Exhibit “A”, Id., at p. 1.
10 Exhibits “B”, “B1”, “B2”, “B3” and “B4”, Id.,at pp. 2-4.
11 Exhibit “C”, Id., at p. 5.
12 Exhibit “D”, Id.,at p. 6.

522

522 SUPREME COURT REPORTS ANNOTATED

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

Magdaleno Valdez, Sr., Magdaleno Valdez, Jr. also testified for the
plaintiffs during the trial.
On the other hand, Bomedco’s principal defense was that it was
the owner and possessor of Cadastral Lot No. 954, having allegedly
bought the same from Feliciana Santillan in 1929, prior to the sale of
the 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 Bomedco’s open and continuous possession of
the property for more than 50 years.
13
Bomedco submitted in evidence a14Deed of Sale dated March 18,
1929; seven real estate tax receipts for the property covering the
period from 1930 to 1985; a 192915Survey Plan of private land for 16
Bogo-Medellln Milling Company; a Survey 17
Notification Card;
Lot Data Computation for Lot No. 954; a Cadastral Map for
18
Medellin Cadastre as well as the testimonies of Vicente Basmayor,
Geodetic Engineer and property custodian for Bomedco, and
Rafaela A. Belleza, Geodetic Engineer and Chief of the Land
Management Services of the DENR, Region VIII.

19
 19
In its decision dated November 27, 1991, the trial court rejected
Bomedco’s defense of ownership on the basis of a prior sale, citing
that its evidence—a xerox copy of the Deed of Sale dated March 18,
1929—was inadmissible and had no probative value. Not only was it
not signed by the parties but defendant Bomedco also failed to
present the original copy without valid reason pursuant to Section 4,
20
Rule 130 of the Rules of Court.
Nonetheless, the trial court held that Bomedco had been in
possession of Cadastral Lot No. 954 in good faith for more than 10
years, thus, it had already acquired ownership of the property
through acquisitive prescription under Article 620 of the Civil Code.
It explained:

_______________

13 Exhibit “1”, Folder of Defendant’s Exhibits, pp. 8-9.

14 Exhibits “2”, “3”, “4”, “5”, “6”, “7” and “8”, Id.,at pp. 10-15.
15 Exhibit “9”, Id.,at p. 17.
16 Exhibit “10”, Id.,at p. 18.
17 Exhibit “11”, Id., at p. 19.
18 Exhibit “12”, Id., at pp. 20-21.
19 Presiding Judge Benigno G. Gaviola.
20 Rollo, p. 39.

523

VOL. 407, JULY 31, 2003 523

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

Under Article 620 of the Civil Code, CONTINUOUS and APPARENT

easements can be acquired by prescription after ten (10) years. The
“apparent” characteristic of the questioned property being used by defendant
as an easement is no longer at issue, because plaintiffs themselves had
acknowledged that the existence of the railway tracks of defendant
Bomedco was already known by the late Magdaleno Valdez, herein
plaintiffs’ predecessor-in-interest, before the late Magdaleno Valdez
purchased in 1935 from the late Feliciana Santillan the land described in the
Complaint where defendant’s railway tracks is traversing [sic](TSN of
February 5, 1991, pp. 7-8). As to the continuity of defendant’s use of the
strip of land as easement is [sic]also manifest from the continuous and
uninterrupted occupation of the questioned property from 1929 up to the
date of the filing of the instant Complaint. In view of the defendant’s
UNINTERRUPTED possession of the strip of land for more than fifty (50)
years, the Supreme Court’s ruling in the case of Ronquillo, et al. v. Roco, et
al. (103 Phil. 84) is not applicable. This is because in said case the easement
in question was a strip of dirt road whose possession by the dominant estate
occurs only everytime said dirt road was being used by the dominant estate.
Such fact would necessarily show that the easement’s possession by the
dominant estate was never continuous. In the instant case however, there is
clear continuity of defendant’s possession of the strip of land it had been
using as railway tracks. Because the railway tracks which defendant had
constructed on the questioned strip of land had been CONTINUOUSLY
occupying said easement. Thus, defendant Bomedco’s apparent and
continuous possession of said strip of land in good faith for more than ten
(10) years had made defendant owner of said strip of land traversed by its
railway tracks. Because the railway tracks which defendant had constructed
on the questioned strip of land had been continuously occupying said
easement [sic].Thus, defendant Bomedco’s apparent and continuous
possession of said strip of land in good faith for more than ten (10) years
had made defendant owner of said strip of land traversed by its railway
tracks.

Respondent heirs elevated the case to the Court of Appeals which

found that Bomedco did not acquire ownership over the lot. It
consequently reversed the trial court. In its decision dated November
17, 1995, the appellate court held that Bomedco only acquired an
easement of right of way by unopposed and continuous useof the
land, but not ownership, under Article 620 of the Civil Code.
The appellate court further ruled that Bomedco’s claim of a prior
sale to it by Feliciana Santillan was untrue. Its possession being in
bad faith, the applicable prescriptive period in order to acquire
ownership over the land was 30 years under Article 1137 of the

524

524 SUPREME COURT REPORTS ANNOTATED

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

Civil Code. Adverse possession of the property started only in 1965

when Bomedco registered its claim in the cadastral survey of
Medellin. Since only 24 years from 1965 had elapsed when the heirs
filed a complaint against Bomedco in 1989, Bomedco’s possession
of the land had not yet ripened into ownership.
And since there was no showing that respondent heirs or their
predecessor-in-interest was ever paid compensation for the use of
the land, the appellate court awarded compensation to them, to be
computed from the time of discovery of the adverse acts of
Bomedco.
Its motion for reconsideration having been denied by the
appellate court in its resolution dated March 22, 1996, Bomedco
now interposes before us this present appeal by certiorari under Rule
45, assigning the following errors:
 I

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR

WHEN IT REVERSED AND SET ASIDE THE TRIAL COURT’S
DECISION DISMISSING PRIVATE RESPONDENT’S COMPLAINT.

II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR

WHEN IT ORDERED THE PETITIONER TO PAY THE PRIVATE
RESPONDENT THE REASONABLE VALUE OF LOT 954 AND THE
AMOUNT OF TEN THOUSAND (P10,000.00) PESOS AS
REASONABLE ATTORNEY’S FEES.

Petitioner Bomedco reiterates its claim of ownership of the land

through extraordinary acquisitive prescription under Article 1137 of
the Civil Code and lachesto defeat the claim for compensation or
recovery of possession by respondent heirs. It also submits a third
ground originally tendered by the trial court—acquisition of the
easement of right of way by prescription under Article 620 of the
Civil Code.

EXTRAORDINARY ACQUISITIVE PRESCRIPTION

UNDER ART. 1137 OF THE CIVIL CODE

Petitioner’s claim of ownership through extraordinary acquisitive

prescription under Article 1137 of the Civil Code cannot be
sustained.

525

VOL. 407, JULY 31, 2003 525

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

There is no dispute that the controversial strip of land has been in

the continuous possession of petitioner since 1929. But possession,
to constitute the foundation of a prescriptive right, must be
21
possession under a claim of title, that is, it must be adverse. Unless
coupled with the element of hostility towards the true owner, 22
possession, however long, will not confer title by prescription.
After a careful review of the records, we are inclined to believe
the version of respondent heirs that an easement of right of way was
actually granted to petitioner for which reason the latter was able to
occupy Cadastral Lot No. 954. We cannot disregard the fact that, for
the years 1930, 1937, 1949, 1962 and 1963, petitioner unequivocally
declared the property to be a “central railroad right of way” or
“sugar central railroad right of way” in its real estate tax receipts
when it could have declared it to be “industrial land” as it did for the
23
years 1975 and 1985. 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
24
are fully comprehended in his general right of ownership.
While it is true that, together with a person’s actual and adverse
possession of the land, tax declarations constitute
25
strong evidence of
ownership of the land occupied by him, this legal precept does not
apply in cases where the property is declared to be a mere easement
of right of way.
An easement or servitude is a real right, constituted on the
corporeal immovable 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

_______________

21 Ordoñez vs. Court of Appeals, 188 SCRA 109 [1990].

22 Cequeña vs. Bolante, 330 SCRA 216 [2000].
23 Folder of Defendant’s Offer of Exhibits, pp. 10-16.
24 Articles 428 and 437, Civil Code.
25 DBP vs. Court of Appeals, 331 SCRA 267 [2000]; Article 233, Civil Code.

526

526 SUPREME COURT REPORTS ANNOTATED

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

to two different owners. It gives the holder of the easement an

incorporeal interest on the land but grants no title thereto. Therefore,
an acknowledgment of the easement is an admission that the
26
property belongs to another.
Having held the property by virtue of an easement, petitioner
cannot now assert that its occupancy since 1929 was in the concept
of an owner. Neither can it declare that the 30-year period of
extraordinary acquisitive prescription started from that year.
Petitioner, however, maintains that even if a servitude was
merely imposed on the property in its favor, its possession
immediately became adverse to the owner in the late 1950’s when
the grant was alleged by respondent heirs to have expired. It stresses
that, counting from the late 1950’s (1959 as found by the trial court),
the 30-year extraordinary acquisitive prescription had already set in
by the time respondent heirs made a claim against it in their letters
dated March 1 and April 6, 1989.
We do not think so. The mere expiration of the period of
easement in 1959 did not convert petitioner’s possession into an
adverse one. Mere material possession of land is not adverse
possession as against the owner and is insufficient to vest title,
unless 27such possession is accompanied by the intent to possess as an
owner. There should be a hostile use of such a nature and exercised
under such circumstances as to manifest and give notice that the
possession is under a claim of right.
In the absence of an express grant by the owner, or conduct by
petitioner sugar mill from which an adverse claim can be implied, its
possession of the lot can only be presumed to have continued in the
same character as when it was acquired (that is, it possessed the land
only by virtue of the original grant of the easement of right of
28
way), or was by mere license or tolerance of the owners
29
(respondent heirs). It is a fundamental principle of law in this
jurisdiction that acts of possessory character executed by virtue of

_______________

26 2 TOLENTINO, CIVIL CODE 353-354 [1992].

27 Compañia Agricula de Ultramar vs. Domingo, 6 Phil. 246 [1906].
28 Article 529, Civil Code.
29 Manila Electric Company vs. Intermediate Appellate Court, 174 SCRA 313
[1989].

527

VOL. 407, JULY 31, 2003 527

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

license or tolerance of the owner, no matter how long, do not start

30
the running of the period of prescription.
After the grant of easement expired in 1959, petitioner never
performed any act incompatible with the ownership of respondent
heirs over Cadastral Lot No. 954. On the contrary, until 1963,
petitioner continued to declare the “sugar central railroad right of
way” in its realty tax receipts, thereby doubtlessly conceding the
ownership of respondent heirs. Respondents themselves were
emphatic that they simply tolerated petitioner’s continued use of
Cadastral Lot No. 954 so as not to jeopardize the 31
employment of one
of their co-heirs in the sugar mill of petitioner.
 The only time petitioner assumed a legal position adverse to
respondents’ was when it filed a claim over the property in 1965
during the cadastral survey of Medellin. Since then (1965) and until
the filing of the complaint for the recovery of the subject land before
the RTC of Cebu in 1989, only 24 years had lapsed. Since the
required 30-year extraordinary prescriptive period had not yet been
complied with in 1989, petitioner never acquired ownership of the
subject land.

LACHES

Neither can petitioner find refuge in the principle of laches. It is not

just the lapse of time or delay that constitutes laches. The essence of
laches is the failure or neglect, for an unreasonable and unexplained
length of time, to do that which, through due diligence, could or
should have been done earlier, thus giving rise to a presumption that
the party entitled to assert it had either abandoned or declined to
32
assert it.
Its essential elements are: (a) conduct on the part of the
defendant, or of one under whom he claims, giving rise to the
situation complained of; (b) delay in asserting complainant’s rights
after he had knowledge of defendant’s acts and after he has had the
opportunity to sue; (c) lack of knowledge or notice by defendant that
the complainant will assert the right on which he bases his suit; and

_______________

30 Article 1119, Civil Code.

31 Exhibit “Y”, Records, pp. 102-103.
32 Españo vs. Court of Appeals, 268 SCRA 511 [1997].

528

528 SUPREME COURT REPORTS ANNOTATED

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

(d) injury or prejudice to the defendant in the event the relief is

33
accorded to the complainant.
The second element (which in turn has three aspects) is lacking
in the case at bar. These aspects are: (a) knowledge of defendant’s
action, (b) opportunity to sue defendant after obtaining such
34
knowledge, and (c) delay in the filing of such suit.
Records show that respondent heirs only learned about
petitioner’s 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
March 1, 1989 and April 6, 1989. When petitioner ignored them,
they instituted their complaint before the Regional Trial Court of
Cebu City on June 8, 1989.
35
Petitioner’s reliance on Caro36 vs. Court of Appeals and Vda. de
Alberto vs. Court of Appeals is misplaced. There, laches was
applied to bar petitioners from questioning the ownership of the
disputed properties precisely because they had knowledge of the
adverse claims on their properties yet tarried for an extraordinary
period of time before taking steps to protect their rights.
Further, there is no absolute rule on what constitutes laches. It is
a rule of equity and applied not to penalize neglect or sleeping on
one’s rights but rather to avoid recognizing a right when to do so
would result in a clearly unfair situation. The question of laches is
addressed to the sound discretion of the court and each case must be
37
decided according to its particular circumstances. It is the better
rule that courts, under the principle of equity, should not be guided
or bound strictly by the statute of limitations or the doctrine of
laches if wrong or injustice will result.
It is clear that petitioner never acquired ownership over Cadastral
Lot No. 954 whether by extraordinary acquisitive prescription or by
laches.

_______________

33 Avisado vs. Rumbaua, 354 SCRA 245 [2001].

34 Catholic Bishop of Balanga vs. Court of Appeals, 264 SCRA 181 [1996].
35 180 SCRA 401 [1989].
36 173 SCRA 436 [1989].
37 Villanueva vs. Court of Appeals, 330 SCRA 349 [2000].

529

VOL. 407, JULY 31, 2003 529

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

ACQUISITION OF EASEMENT OF RIGHT OF WAY BY

PRESCRIPTION UNDER ART. 620 OF CIVIL CODE

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:

Continuous and apparent easements are acquired either by virtue of a title or

by prescription of ten years.
The trial court and the Court of Appeals both upheld this view for
the reason that the railroad right of way was, according to them,
continuous and apparent in nature. The more or less permanent
railroad tracks were visually apparent and they continuously
occupied the subject strip of land from 1959 (the year the easement
granted by Feliciana Santillan to petitioner expired). Thus, with the
lapse of the 10-year prescriptive period in 1969, petitioner
supposedly acquired the easement of right of way over the subject
land.
Following the logic of the courts a quo, if a road for the use of
vehicles or the passage of persons is permanently cemented or
asphalted, then the right of way over it becomes continuous in
nature. The reasoning is erroneous.
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
38
intervention of any act of man, like the easement of drainage; and
it is discontinuous if it is used at intervals
39
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 else’s 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

_______________

38 3 PARAS, CIVIL CODE OF THE PHILIPPINES ANNOTATED 597-598 (13TH

ed., 1994); Article 615 and 646, Civil Code.
39 Ibid.

530

530 SUPREME COURT REPORTS ANNOTATED

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

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 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, while40an
easement of not building beyond a certain height is non-apparent.
In Cuba, it has been held that the existence of a permanent
railway does not make the right of way a continuous one; it is 41only
apparent. Therefore, it cannot be acquired by prescription. In
Louisiana, it has also been held that a right of passage over another’s
land cannot be claimed by prescription because42this ease-ment is
discontinuous and can be established only by title.
In this case, the presence of railroad tracks for the passage of
petitioner’s 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

_______________

40 Supra note 26, p. 358.

41 Ibid.,at p. 365, citing Sentencia (Cuba) of December 14, 1928.
42 Ibid.,citing Broussard vs. Etie, 11 La. 394; Burgas vs. Stontz, 174 La. 586, 141
So. 67.

531

VOL. 407, JULY 31, 2003 531

Bogo-Medellin Milling Co., Inc. vs. Court of Appeals

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.
 But when is a party deemed to acquire title over the useof such
land (that is, title over the easement of right of way)? In at least two
cases, we held that if: (a) it had subsequently entered into a
contractual right of way with the heirs for the continued use of the
land under the principles of voluntary easements, or (b) it had filed a
case against the heirs for conferment on it of a legal easement of
right of way under Article 629 of the Civil Code, then title over the
useof the land is deemed to exist. The conferment of a legal
easement of right of way under Article 629 is subject to proof of the
following:

(1) it is surrounded by other immovables and has no adequate

outlet to a public highway;
(2) payment of proper indemnity;
(3) the isolation is not the result of its own acts; and
(4) the right of way claimed is at the point least prejudi-cial to
the servient estate, and, insofar as consistent with this rule,
the distance
43
from the dominant estate to the highway is the
shortest.

None of the above options to acquire title over the railroad right of
way was ever pursued by petitioner despite the fact that simple
resourcefulness demanded such initiative, considering the
importance of the railway tracks to its business. No doubt, it is
unlawfully occupying and using the subject strip of land as a
railroad right of way without valid title yet it refuses to vacate it
even after demand of the heirs. Furthermore, it tenaciously insists on
ownership thereof despite a clear showing to the contrary.
We thus uphold the grant by the Court of Appeals of attorney’s
fees in the amount of P10,000 considering the evident bad faith of
petitioner in refusing respondent’s
44
just and lawful claims,
compelling the latter to litigate.

_______________

43 Bacolod-Murcia Milling Co., Inc., et al. vs. Capital Subd., Inc., et al., 17 SCRA
731 [1966]; Talisay-Silay Milling Co., Inc. vs. CFI of Negros Occidental, et al., 42
SCRA 577 [1971].
44 Article 2208 (2) (5), Civil Code; Songcuan vs. Intermediate Appellate Court,
191 SCRA 28 [1990].

532

532 SUPREME COURT REPORTS ANNOTATED

Webb vs. Secretary of Justice
 WHEREFORE, the petition is DENIED. The appealed decision
dated November 17, 1995 and resolution dated March 2, 1996 of the
Court of Appeals are AFFIRMED with MODIFICATION. Petitioner
Bogo-Medellin Milling Company, Inc. is hereby ordered to vacate
the subject strip of land denominated as Cadastral Lot No. 954,
remove its railway tracks thereon and return its possession to the
private respondents, the heirs of Magdaleno Valdez, Sr. It is also
hereby ordered to pay private respondents attorney’s fees in the
amount of P10,000.
SO ORDERED.

          Puno (Chairman), Panganiban and Carpio-Morales, JJ.,

concur.
     Sandoval-Gutierrez, J., On Official Leave.

Petition denied, judgment affirmed with modification.

Note.—Rights and actions can be lost by the fact of delay and by

the effect of delay. (Ochagabia vs. Court of Appeals, 304 SCRA 587
[1999])

——o0o——

© Copyright 2019 Central Book Supply, Inc. All rights reserved.