Sabanal Law Office 4th floor, JYD Bldg., Quezon St.

, Iloilo City

September 22, 2012

Mayor Pablo Perez Municipality of Pototan, Province of Iloilo

Dear Mayor Perez:

I am writing in reference to your letter regarding my opinion as to Provincial Ordinance No. 14 entitled An Ordinance Prohibiting the Act of Closing a Right of Way and Providing Penalties therefore and for Other Purposes. Having read the contents of the aforementioned ordinance, I have reached a conclusion that such ordinance is invalid taking into account the determiners that both the subject and its method must be lawful otherwise it shall fall for reason that it would violate the general welfare clause. The following statements are some points to be considered in order to establish that indeed such ordinance must not prevail. Article 620 of the New Civil Code provides that Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. According to the ordinance in question, quoting the first sentence of the first paragraph thereof that the easement of right of way shall be established by title or acquired by prescription of ten years thus inferring that an easement of right of way is continuous and apparent. I disagree to such premise. The easement of right of way is discontinuous, hence it cannot be acquired by prescription of ten years. In Ronquillo, et al. v. Roco, et al., G.R. No. L-10619, Feb. 28, 1958, it has been held that the essence of the easement of right of way lies in the power of the dominant owner to cross or traverse the servient tenement without being prevented or disturbed by its owner. As a servitude, it is a limitation on the servient owners rights of ownership, because it restricts his right to exclude others fron his property. But such limitation exists only when the dominant owner actually crosses, or passes over the servient estate; because when he does not, the servients owners right of exclusion is perfect and undisturbed. Since the dominant owner cannot be continually and uninterruptedly crossing the servient estate, but can do so only at intervals, the easement is necessarily of an intermittent or discontinuous nature. Under Article 622 of the New Civil Code, continuous non-apparent easements, and discontinuous ones, whether apparent or not, may be acquired only by virtue of a title. Granting that the easement of right of way is a discontinuous one, therefore it may only be acquired by

virtue of a title. It could never be acquired by prescription of ten years from the day passage was allowed. The subject of the ordinance prohibiting the act of closing a right of way seeks to protect the right of those who utilize passageways as well as from harassment or intimidation by owners of such passageways whether election-related or not. Said subject is lawful for it promotes the general welfare clause by giving protection to the public in terms of those who utilize these passageways. Additionally, the province by way of such ordinance is in the exercise of its police power. However, by prohibiting the act of closing a right of way for the benefit of the public would therefore prejudice the right of the servient owners, hence the unlawful method for it does not uphold the general welfare clause. Section 16 of the Local Government Code states that Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incident for its efficient and effective governance, and those which are essential to the promotion of the general welfare. Within their respective territorial jurisdictions, local government units shall ensure and support, among other things, the preservation and enrichment of culture, promote health and safety, enhance the right of the people to a balanced egology, encourage and support the development of appropriate and self-reliant scientific and technological capabilities, improve public morals, enhance economic prosperity and social justice, promote full employment among their residents, maintain peace order, and preserve the comfort and convenience of their inhabitants. The exercise of police power must conform to the requirements laid down by the Constitution. A local government unit is considered to have properly exercised its police power only when the interests of the public generally, as distinguished to a particular class, require the interference of the State and the means employed are reasonably necessary for the attainment of the object sought to be accomplished and not duly oppressive. Such requisites mentioned upholds the equal protection clause as well as the due process clause of the Constitution. The scope of the ordinance found in Section 3 thereof covers easement of right of way established either by virtue of a title or by prescription of ten years. This entails all easements of right of way, whether legal or voluntary, are covered by said ordinance. Meaning, those contracts on easements which are between private individuals are deemed included. Such easements may limit the granting of such right as to specific persons, vehicles, or livestock as to quantity and ownership. Said easements if prohibited to close are prejudicial to the rights of the owners of both servient and dominant estates of private individuals because such contract of easement are subject to private property which the government must respect. It cannot compell them to open such easements to the public without prejudice to such private persons. In order for the government to validly exercise its police power, it has to grant protection to the public without impairing the rights of the private individuals. Hence, the ordinance shall be valid if it applies only when deemed necessary. In the case of Abellana v. CA, G.R. No. 97039, Apr. 24, 1992, it is held that the municipal ordinances which declared subdivision roads open to public use when deemed necessary by the proper authorities simply allows 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. Therefore, the ordinance in question may be applicable only when necessary as it would not prejudice the rights of private individuals, which brings me to the conclusion that prohibiting the act of closing any established easement of right of way is lawful whenever there is a necessity to do so in order to prevent harassment and intimidation whether election-related or not by preserving the comfort and convenience of their inhabitants, that is, without impairing the rights of private individual.

In view of the premises established above, I am hoping that this would satisfy you questions raised pertaining to the ordinance above-mentioned.

Respectfully yours,

Atty. Jennifer D. Sabanal