GR No 97039

G.R. No.
97039
lawphil.net/judjuris/juri1992/apr1992/gr_97039_1992.html
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Republic of the Philippines
SUPREME COURT
Manila
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 VDS. DE BENTE, PAULA VDA. DE BACUS, ARTURO
JABELLANA, FLORENTINO LARIOSA, LEODY DE LA PEÑA, PELAGIA
JABELLANA, FE GOCELA, SEVERINO QUINAMADA and NARCISA
LASTIMOSA, petitioners,
vs.
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 Sanguniang Bayan, respondents.
APOLINARIO ENGUIO, RICO VILLARIN, MARIA ROSARIO BALBUENA,

JOSE TIROL, ASUNCION DE LA PEÑA, 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.
GRIÑO-AQUINO, J.:
The petitioners who live on a parcel of land abutting the northwestern side of the
Nonoc Homes Subdivision, sued to establish an easement of right of way over a
subdivision road which, according to the petitioners, used to be a mere footpath
which they and their ancestors had been using since time immemorial, and that,
hence, they had acquired, through prescription, an easement of right of way
therein. The construction of a wall by the respondents around the subdivision
deprived the petitioners of the use of the subdivision road which gives the
subdivision residents access to the public highway. They asked that the high
concrete walls enclosing the subdivision and cutting of their access to the
subdivision road be removed and that the road be opened to them.
The private respondents denied that there was a pre-existing footpath in the
place before it was developed into a subdivision. They alleged furthermore that
the Nonoc Subdivision roads are not the shortest way to a public road for there is
a more direct route from the petitioners' land to the public highway.
After trial, the trial court rendered judgment disposing as follows:
WHEREFORE, judgment is hereby rendered, and, accordingly,

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

respondents), the appellate court on October 17, 1990, reversed the appealed
judgment. It found that:
As borne out by the records of the case, the

abovementioned requisites essential for the grant of an
easement of right of way are not obtaining in this case
hence no alternative presents itself except reversal of the
judgment below. . . .
However, the foregoing is without prejudice to the filing of

the appropriate action by the proper authorities. Records
bear that attention of the Municipal Mayor of Talisay was
already called by the 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
acquired by the government by donation, purchase or
expropriation if they are to be utilized for a public highway.
. . ."
xxx xxx xxx
WHEREFORE, the judgment appealed from is hereby

REVERSED and set aside. The Municipal Government of
Talisay, Cebu, at its option, may institute the proper action
for expropriation. (p. 22, Rollo)
In an order dated January 9, 1991, the appellate court denied petitioners' motion
for reconsideration of the aforesaid decision. Hence, this petition for review in
which the petitioners allege that the Court of Appeals erred:
1. in not holding that the easement claimed by them is a legal

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

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

road lots 1 and 3 of the Nonoc Homes Subdivision by the private
respondents, Estoye and Naya, was legal.
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After deliberating on their petition for review of the decision dated October 17,
1990 of the Court of Appeals in CA-G.R. CV No. 19948, and the private
respondents' comments, we find that the petition raises merely factual issues
which are not reviewable by this Court under Rule 45 of the Rules of Court, and
that, in any event, no reversible error was committed by the Court of Appeals in
dismissing the complaint on the ground that the requisite conditions do not exist
for the grant of an easement of right of way in favor of the petitioners' land under
Articles 649 and 650 of the Civil Code. The appellate court did not err in holding
that the road lots in a private subdivision are private property, hence, the local
government should first acquire them by donation, purchase, or expropriation, if
they are to be utilized as a public road.
Petitioners' assumption that an easement of right of way is continuous and

apparent and may be acquired by prescription under Article 620 of the Civil
Code, is erroneous. The use of a footpath or road may be apparent but it is not a
continuous easement because its use is at intervals and depends upon the acts
of man. It can be exercised only if a man passes or puts his feet over somebody
else's land (4 Manresa 597; Haffman vs. Shoemaker, 71 SE 198, both cited on p.
454, Vol. 2, 6th Ed., Paras, Civil Code of the Philippines). Hence, a right of way is
not acquirable by prescription (Cuaycong, et al, vs Benedicto, et al., 37 Phil. 781;
Ronquillo, et al. vs. Roco, et al., 103 Phil. 84; Ayala de Roxas vs. Case, 8 Phil.
197).
Neither may petitioners invoke Section 29 of P.D. 957 which provides:
Sec. 29. Right of Way to Public Road. — The owner or developer of a

subdivision without access to any existing public road or street must
secure a right of way to a public road or street and such right of way
must be developed and maintained according to the requirement of
the government authorities concerned.
The above provision applies to the owner or developer of a subdivision (which

petitioners are not) without access to a public highway.
The petitioners' allegation that the footpaths which were converted to subdivision
roads have acquired the status of public streets, is not well taken. In the first
place, whether or not footpaths previously existed in the area which is now
known as the Nonoc Homes Subdivision, is a factual issue which this Court may
not determine for it is not a trier of facts.
The municipal ordinances which declared subdivision roads open to public use
"when deemed necessary by the proper authorities" (p. 7, Rollo) simply allow
persons other than the residents of the Nonoc Homes Subdivision, to use the
roads therein when they are inside the subdivision but those ordinances do not
give outsiders a right to open the subdivision walls so they can enter the
subdivision from the back. As the private respondents pointed out in their
Comment:
The closure of the dead ends of road lots 1 and 3 is a valid exercise
of proprietary rights. It is for the protection of residents in the
subdivision from night prowlers and thieves. And the public is not
denied use of the subdivision roads, only that the users must get
inside the subdivision through the open ends of the road lots that link
the same to the public road. It is common to most, if not all
subdivisions in Cebu, Metro Manila and other places, that points of
ingress to and egress from the subdivision are the points where the
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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. (54-55, Rollo)
WHEREFORE, finding no merit in the petition for review, the same is DENIED
with costs against the petitioners.
SO ORDERED.
Narvasa, C.J., Cruz and Medialdea, JJ., concur.
Bellosillo, J., is on leave.
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G.R. No.

G.R. No. 97039 April 24, 1992

CONCORDIO ABELLANA, SR., PEDRO E. MENDEZ, VERANO BADANA,

APOLINARIO ENGUIO, RICO VILLARIN, MARIA ROSARIO BALBUENA,

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

WHEREFORE, judgment is hereby rendered, and, accordingly,

However, on appeal by the defendants and intervenors (now private

As borne out by the records of the case, the

However, the foregoing is without prejudice to the filing of

xxx xxx xxx

WHEREFORE, the judgment appealed from is hereby

1. in not holding that the easement claimed by them is a legal

2. in not holding that the footpaths and passageways which were

3. in not determining whether or not the closure of the dead ends of

Petitioners' assumption that an easement of right of way is continuous and

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

Sec. 29. Right of Way to Public Road. — The owner or developer of a

The above provision applies to the owner or developer of a subdivision (which

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

Bellosillo, J., is on leave.

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