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
PEÑA, PELAGIA JABELLANA, FE GOCELA, SEVERINO QUINAMADA and NARCISA
LASTIMOSA, Petitioners,

-versus-

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 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.

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FACTS:

Petitioners are owners of a parcel of land on the northwest side of Nonoc Subdivision, Cebu.
They sued to establish an easement of a right of way over a subdivision road, which they claim
they have 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 held in favor of the petitioners ordering the respondents to demolish the subject fences or
enclosures at the dead ends of the subject lot at their expense and to leave them open for the use
of the plaintiffs and the general public.

However, the Court of Appeals reversed the lower court’s decision 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. The petitioner filed for a motion for
reconsideration which was also denied. Hence, the petition of the instant case.

ISSUE:

Whether or not the easement of a right of way may be acquired by prescription?

HELD:

No. Article 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.

WHEREFORE, finding no merit in the petition for review, the same is DENIED with costs
against the petitioners.