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G.R. No. L-10619 February 28, 1958

FACTS: The plaintiffs alleged that they have been in the continuous and
uninterrupted use of a road or passage way which traversed the land of the
defendants and their predecessors in interest, in going to Igualdad Street
and the market place of Naga City, from their residential land and back, for
more than 20 years. Plaintiffs further claim that defendants have long
recognized and respected the private legal easement of road right of way of
the former. On May 12, 1953, the defendants and their men constructed a
chapel in the middle of the said right of way which, accordingly has impeded,
obstructed and disturbed the continuous exercise of the rights of the
plaintiffs over said right of way. On July 10, 1954 defendants planted wooden
posts, fenced with barbed wire and closed hermitically the road passage way
and their right of way against the plaintiff’s protests and opposition. This
prevented them from going to or coming from their homes to Igualdad Street
and the public market of the City of Naga.

ISSUE: Whether an easement of right of way can be acquired thru


HELD: An easement of right of way though it may be apparent is,

nevertheless, discontinuous or intermittent and, therefore, cannot be
acquired through prescription, but only by virtue of a title. Under the New
Civil Code, easements may be continuous discontinuous (intermittent),
apparent or non-apparent, discontinuous being those used at more or less
long intervals and which depend upon acts of man (Articles 615). Continuous
and apparent easements are acquired either, by title or prescription,
continuous non-apparent easements and discontinuous ones whether
apparent or not, may be acquired only by virtue of a title (Articles 620 and

Under the provisions of the Civil Code, particularly the articles thereof
aforecited, it would therefore appear that the easement of right of way may
not be acquired through prescription. Even Article 1959 of the Old Civil Code
providing for prescription of ownership and other real rights in real property,
excludes therefrom the exception established by Article 539, referring to
discontinuous easements, such as, easement of right of way. (Bargayo vs.
Camumot, 40 Phil., 857, 867).
Further, in the case of Cuayong vs. Benedicto, (37 Phil., 781) where the point
in issue was whether or not vested rights in a right of way can be acquired
through user from time immemorial, the Court held that no discontinuous
easement could be acquired by prescription in any event.


G.R. No. 75905; October 12, 1987

FACTS: Plaintiff Ramos acquired from Science Rodriguez Lombos Subdivision

a house and lot containing an area of 901 square meters situated at Barrio
San Dionisio, Parañaque, Metro Manila. In the subdivision survey plan, two
road lots abut plaintiff's property namely lot 4133-G-12 with an area of 2,160
square meters clearly appearing as a proposed road in the Lombos
subdivision plan and Lot 4135 of the Parañaque Cadastre now known as
Pambansa Road but more commonly referred to as Gatchalian Avenue.

Respondents Asprec own Lot 4135. Gatchalian Avenue is alongside Lot 4135.
Respondent Gatchalian Realty was granted the road right of way and
drainage along Lot 4135 to service the Gatchalian and Asprec subdivision, by
the respondent Asprecs. On April 30, 1981, Ramos filed a complaint for an
easement of a right of way with preliminary mandatory injunction against the
private respondents, alleging, among others the that he constructed his
house at 27 Gatchalian Avenue (also known as Pambansa Road), Paranaque,
and has since resided therein with his family from 1977 up to the present;
that during construction of the house, Gatchalian Realty, Inc. built a 7-8, feet
high concrete wall right infront of his premises, blocking his entrance/exit to
Gatchalian Road, the nearest being only about 100 meters, most convenient
and adequate entrance/exit to the public road or highway, the Sucat Road
(now known as Dr. A. Santos Avenue, Parañaque); that with the construction
of the 7-8 feet concrete wall has constrained plaintiff and his family to use as
temporary ingress/egress and with great inconvenience and hardship other
lots belonging to different owners, and this becomes all the more
pronounced during the rainy season due to flood and mud; and, lastly, that
the aforesaid concrete wall is dangerously leaning towards appellant's
premises posing great danger or hazard.

The lower court dismissed the complaint for insufficiency of evidence. On

appeal, the Court of Appeals found that the plaintiff failed to establish the
existence of the pre-conditions in order that he could legally be entitled to an
easement of a right of way as it affirmed the lower court's order.

ISSUE: Whether or not the plaintiff has successfully shown that all the
requisites necessary for the grant of an easement of a right of way in his
favor are present.

HELD: The Court finds the petition not to be impressed with merit. An
easement or servitude in an encumbrance imposed upon an immovable for
the benefit of another immovable belonging to a different owner as defined
in Article 613 of the Civil Code. It is established either by law, in which case it
is called legal or by the will of the parties, in which event it is a voluntary
easement. Since there is no agreement between the contending parties in
this case granting a right of way by one in favor of the other, the
establishment of a voluntary easement between the plaintiff and the
respondent company and/or the other private respondents is ruled out. What
is left to examine is whether or not the plaintiff is entitled to a legal or
compulsory easement of a right of way.

A compulsory right of way can not be obtained unless the following four
requisites are first shown to exist:
(1) That it is surrounded by other immovables and has no adequate outlet to
a public highway (Art. 649, par. 1);
(2) After payment of proper indemnity (Art. 649, p. 1. end);
(3) That the isolation was not due to the Central's own acts (Art. 649, last
par.); and
(4) That the right of way claimed is "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." (Art.

On the first requisite, the Court finds no reason to disturb the appellate
court's finding of fact that the plaintiff failed to prove the non-existence of an
adequate outlet to the Sucat Road except through the Gatchalian Avenue. As
borne out by the records of the case, there is a road right of way provided by
the Sabrina Rodriguez Lombos Subdivision indicated as Lot 4133-G-12 in its
subdivision plan for the buyers of its lots. The fact that said lot is still
undeveloped and causes inconvenience to the plaintiff when he uses it to
reach the public highway does not bring him within the ambit of the legal
requisite. The Court agree with the appellate court's observation that the
plaintiff should have, first and foremost, demanded from the Sabrina
Rodriguez Lombos Subdivision the improvement and maintenance of Lot
4133-G-12 as his road right of way because it was from said subdivision that
he acquired his lot and not either from the Gatchalian Realty or the
respondents Asprec. To allow the plaintiff access to Sucat Road through
Gatchalian Avenue in spite of a road right of way provided by the plaintiff's
subdivision for its buyers simply because Gatchalian Avenue allows plaintiff a
much greater ease in going to and coming from the main thoroughfare is to
completely ignore what jurisprudence has consistently maintained through
the years regarding an easement of a right of way, that "mere convenience
for the dominant estate is not enough to serve as its basis. To justify the
imposition of this servitude, there must be a real, not a fictitious or artificial,
necessity for it."

Considering that the plaintiff has failed to prove the existence of the first
requisite as aforestated, the Court finds it unnecessary to discuss the rest of
the preconditions for a legal or compulsory right of way.


G.R. No. 77628; March 11, 1991

FACTS: Petitioner Tomas Encarnacion and private respondent Heirs of the

late Aniceta Magsino Viuda de Sagun are the owners of two adjacent estates
situated in Buco, Talisay, Batangas. Petitioner owns the dominant estate
while respondent owns the servient estate which stands between the
dominant estate and the national road.

When the servient estate was not yet enclosed with a concrete fence,
persons going to the national highway just crossed the servient estate at no
particular point. However, in 1960 when private respondents constructed a
fence around the servient estate, a roadpath measuring 25 meters long and
about a meter wide was constituted to provide access to the highway. One-
half meter width of the path was taken from the servient estate and the
other one-half meter portion was taken from another lot owned by Mamerto
Magsino. No compensation was asked and none was given for the portions
constituting the pathway.

It was also about that time that petitioner started his plant nursery business
on his land where he also had his abode. He would use said pathway as
passage to the highway for his family and for his customers. Petitioner's
plant nursery business through sheer hard work flourished and with that, it
became more and more difficult for petitioner to haul the plants and garden
soil to and from the nursery and the highway with the use of pushcarts. In
January, 1984, petitioner was able to buy an owner-type jeep which he could
use for transporting his plants. However, that jeep could not pass through
the roadpath and so he approached the servient estate owners and
requested that they sell to him one and one-half (1 1/2) meters of their
property to be added to the existing pathway so as to allow passage for his
jeepney. The request was turned down by the two widows and further
attempts at negotiation proved futile.

Petitioner then instituted an action before the Regional Trial Court of

Batangas, to seek the issuance of a writ of easement of a right of way over
an additional width of at least two (2) meters over the De Saguns' 405-
square-meter parcel of land. During the trial, the attention of the lower court
was called to the existence of another exit to the highway, only eighty (80)
meters away from the dominant estate, hence, dismissing petitioner's

On appeal, the Court of Appeals affirmed the decision of the trial court and
rejected petitioner's claim for an additional easement.

ISSUE: Whether or not petitioner is entitled to a widening of an already

existing easement of right-of-way.

HELD: The Court finds that petitioner has sufficiently established his claim for
an additional easement of right of way, holding that where a private property
has no access to a public road, it has the right of easement over adjacent
servient estates as a matter of law.
Article 651 of the Civil Code provides that "(t)he width of the easement of
right of way shall be that which is sufficient for the needs of the dominant
estate, and may accordingly be changed from time to time." This is taken to
mean that under the law, it is the needs of the dominant property which
ultimately determine the width of the passage. And these needs may vary
from time to time.

When petitioner started out as a plant nursery operator, he and his family
could easily make do with a few pushcarts to tow the plants to the national
highway. But the business grew and with it the need for the use of modern
means of conveyance or transport. Manual hauling of plants and garden soil
and use of pushcarts have become extremely cumbersome and physically
taxing. To force petitioner to leave his jeepney in the highway, exposed to
the elements and to the risk of theft simply because it could not pass
through the improvised pathway, is sheer pigheadedness on the part of the
servient estate and can only be counter-productive for all the people
concerned. Petitioner should not be denied a passageway wide enough to
accommodate his jeepney since that is a reasonable and necessary aspect of
the plant nursery business.

Inasmuch as the additional one and one-half (1 1/2) meters in the width of
the pathway will reduce the area of servient estate, and the petitioner has
expressed willingness to exchange an equivalent portion of his land to
compensate private respondents for their loss, perhaps, it would be well for
respondents to take the offer of petitioner seriously. But unless and until that
option is considered, the law decrees that petitioner must indemnify the
owners of the servient estate including Mamerto Magsino from whose
adjoining lot 1/2 meter was taken to constitute the original path several
years ago. Since the easement to be established in favor of petitioner is of a
continuous and permanent nature, the indemnity shall consist of the value of
the land occupied and the amount of the damage caused to the servient
estate pursuant to Article 649 of the Civil Code.


G.R. No. L-14116 ; June 30, 1960

FACTS : Respondents own a building with windows overlooking the adjacent

lot, owned by the petitioners. Allegedly, in 1913 or 1914, before the New
Civil Code took effect, the predecessors-in-interest of the petitioner were
verbally prohibited by the respondent to obstruct view and light. When the
Court of Appeals adjudicated the case, it found out that the two estates are
covered by Original Certificates of Title, both issued by the Register of
Deeds. The court further observed that in both of the title, any annotation
does not appear in respect to the easement supposedly acquired by
prescription which, counting the twenty (20) years from 1913 or 1914, would
have already ripened by 1937, date of the decrees of registration.

ISSUE: Whether the owners of a building standing on their lot with windows
overlooking the adjacent lot, had acquired by prescription an enforceable
easement of light and view arising from a verbal prohibition to obstruct such
view and light, to petitioner's predecessor-in-interest as owner of the
adjoining lot, both of which lots being covered by Torrens titles.

HELD: Inasmuch as the alleged prohibition having been avowedly made in

1913 or 1914, before the present Civil Code took effect, the applicable legal
provision is Article 538 of the Spanish Civil Code which provides that
negative easements are acquired, from the day on which the owner of the
dominant estate has, by a formal act, forbidden the owner of the servient
estate to perform any act which would be lawful without the easement.

The law requires not any form of prohibition, but exacts, in a parenthetical
expression, for emphasis, the doing not only of a specific, particular act, but
a formal act. The phrase "formal act" would require not merely any writing,
but one executed in due form and/or with solemnity. That this is the
intendment of the law although not expressed in exact language is the
reason for the clarification made in Article 621 of the new Civil Code which
specifically requires the prohibition to be in "an instrument acknowledged
before a notary public".

Easements are in the nature of an encumbrance on the servient estate. They

constitute a limitation of the dominical right of the owner of the subjected
property. Hence, they can be acquired only by title and by prescription, in
the case of positive easement, only as a result of some sort of invasion,
apparent and continuous, of the servient estate. By the same token,
negative easements can not be acquired by less formal means. Hence, the
requirement that the prohibition (the equivalent of the act of invasion)
should be by "a formal act", "an instrument acknowledged before a notary

Conceding arguendo that such an easement has been acquired by

prescription which, counting the twenty (20) years from 1913 or 1914, would
have already ripened by 1937, it had been cut off or extinguished by the
registration of the servient estate under the Torrens System without the
easement being annotated on the corresponding certificate of title, pursuant
to Section 39 of the Land Registration Act.


G.R. No. L-15628; November 18, 1920
FACTS: The wall of the house of defendant Oscar Sternberg, have four
windows and a gallery (upper story), two windows, one door and an opening
with wooden lattice (lower story), which is 1 meter and 36 centimeters (1.36
m.) distant from the dividing line between the lot on which said building
stands and the lot of the plaintiff. The building of the defendant has stood
with the identical openings before mentioned, since the year 1905. The
defendant claims to have a direct view over plaintiff's lot, and that the
windows and the gallery of plaintiff's edifice have direct views on defendant's
lot. In the Torrens titles which both parties have to their respective buildings,
there does not appear any easement of view in plaintiff's title, nor any right
to easement in defendant's.

The plaintiff then filed an action before the court, to compel the defendant to
close the windows in the wall of his house adjacent to the former’s property,
because the wall of defendant's house is less than 2 meters from the division
line. The defendant pleads prescription as his defense. The lower court
agreed with the plaintiff's contention and ordered the windows of the
defendant's house to be closed. Hence, this appeal.

ISSUE: Whether or not a right of action to enforce article 582 of the Civil
Code may be lost by failure to prosecute within the prescriptive period fixed
by the Code of Civil Procedure.

HELD: The Court held that the plaintiff right of action under Article 582 of the
Civil Code accrued in 1905 when the windows in defendant's house were
opened, and that, in accordance with Chapter III of the Code of Civil
Procedure, his action has prescribed. Article 582 of the Civil Code provides:
"No windows or balconies or other similar projections which directly overlook
the adjoining property may be opened or built without leaving a distance of
not less than 2 meters between the wall in which they are built and such
adjoining property.

It should first be noted that the defendant in this case has never prohibited
the plaintiff from building on his, the plaintiff's, own land, any wall that he
may desire to construct. Further, it should be noted that the offending edifice
of the defendant was constructed in 1905. This was the year when the
defendant violated the law. This was the date when the cause of action
accrued. Nevertheless, the windows complained of were permitted to be
open for thirteen years without protest. The plaintiff must, consequently, by
reason of his own laches, be considered to have waived any right which he
may have had to compel the windows to be closed. The argument of plaintiff
that it was only in 1917, when he bought the land in question, that the
statute of limitations began to run, is not convincing, for the general rule is,
that once the statute begins to run, it never stops, and the transfer of the
cause of action does not have the effect of suspending its operation.
G.R. No. L-3422; June 13, 1952

FACTS: Petitioner Hidalgo Enterprises, Inc. was the owner of an ice-plant

factory in the City of San Pablo, Laguna, in whose premises were installed
two tanks full of water, nine feet deep, for cooling purposes of its engine.
While the factory compound was surrounded with fence, the tanks
themselves were not provided with any kind of fence or top covers. The
edges of the tanks were barely a foot high from the surface of the ground.
Through the wide gate entrance, which is continually open, motor vehicles
hauling ice and persons buying said commodity passed, and any one could
easily enter the said factory, as he pleased. There was no guard assigned on
the gate.

At about noon of April 16, 1948, plaintiff's son, Mario Balandan, a boy barely
8 years old, while playing with and in company of other boys of his age
entered the factory premises through the gate, to take a bath in one of said
tanks; and while thus bathing, Mario sank to the bottom of the tank, only to
be fished out later, already a cadaver, having been died of "asphyxia
secondary to drowning."

The Court of Appeals, and the Court of First Instance of Laguna, took the
view that the petitioner maintained an attractive nuisance (the tanks), and
neglected to adopt the necessary precautions to avoid accidents to persons
entering its premises. It applied the doctrine of attractive nuisance, stated as
follows: One who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and who fails to
exercise ordinary care to prevent children from playing therewith or
resorting thereto, is liable to a child of tender years who is injured thereby,
even if the child is technically a trespasser in the premises.

The principal reason for the doctrine is that the condition or appliance in
question although its danger is apparent to those of age, is so enticing or
alluring to children of tender years as to induce them to approach, get on or
use it, and this attractiveness is an implied invitation to such children.

ISSUE: Is a swimming pool or water tank an instrumentality or appliance

likely to attract the little children in play and considered as an attractive

HELD: The Supreme Court held in the negative, basing its decision from the
great majority of American decisions where such doctrine originated. The
attractive nuisance doctrine generally is not applicable to bodies of water,
artificial as well as natural, in the absence of some unusual condition or
artificial feature other than the mere water and its location. Further, the
Court cited the explanation of the Indiana Appellate Court which holds that:
Nature has created streams, lakes and pools which attract children. Lurking
in their waters is always the danger of drowning. Against this danger children
are early instructed so that they are sufficiently presumed to know the
danger; and if the owner of private property creates an artificial pool on his
own property, merely duplicating the work of nature without adding any new
danger, he is not liable because of having created an "attractive nuisance.”

As petitioner's tanks are not classified as attractive nuisance, the question

whether the petitioner had taken reasonable precautions becomes
immaterial. And the other issue submitted by petitioner — that the parents
of the boy were guilty of contributory negligence precluding recovery,
because they left for Manila on that unlucky day leaving their son under the
care of no responsible individual — needs no further discussion.