RONQUILLO vs. ROCO- Easement of Right of Way
Easements of right of way may not be acquired by prescription because it is not a continuous easement.
Petitioners’ parcel of land was connected to the Naga Market Place and Igualdad St. by an easement of a right of way through the land of the Respondents, which they have been using for more than 20 years. On May 1953, however, respondents built a chapel right in the middle of the road, blocking their usual path to the marketplace. One year after, by means of force, intimidation, and threats, the owners (respondents) of the land where the easement was situated, planted wooden posts and fenced with barbed wires the road, closing their right of way from their house to Igualdad St. and Naga public market.
Whether or not the easement of a right of way may be acquired by prescription?
Art. 620 of the CC 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.
Minority Opinion (including the ponente):
Easements of right of way may already be acquired by prescription, at least since the introduction into this jurisdiction of the special law on prescription through the Old Code of Civil Procedure, Act No. 190. Said law, particularly, Section 41 thereof, makes no distinction as to the real rights which are subject to prescription, and there would appear to be no valid reason, at least to the writer of this opinion, why the continued use of a path or a road or right of way by the party, specially by the public, for ten years or more, not by mere tolerance of the owner of the land, but through adverse use of it, cannot give said party a vested right to such right of way through prescription.
“The uninterrupted and continuous enjoyment of a right of way necessary to constitute adverse possession does not require the use thereof every day for the statutory period, but simply the exercise of the right more or less frequently according to the nature of the use.” (17 Am. Jur. 972)
"It is submitted that under Act No. 190, even discontinuous servitudes can be acquired by prescription, provided it can be shown that the servitude was actual, open, public, continuous, under a claim of title exclusive of any other right and adverse to all other claimants'."