ABELLANA vs. CA- Easements of Right of Way

Easements of right of way may not be acquired by prescription because it is not a continuous easement.

FACTS:

Petitioners are owners of a parcel of land on the NW side of Nonoc Subdivision, Cebu. They sued to establish an easement of a right of way over a subdivision road, which they claim they’ve 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 found for the petitioners. CA reversed, 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.

ISSUE:

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

HELD:

No. Art. 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.