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, plaintiffs-appellees,
RAMONA BENEDICTO, ET AL., defendants-appellants.
G.R. No. L-9989
March 13, 1918
Defendants are the owner of Nanca-Victorias road situated between the southern boundary of the Hacienda
Toreno and the barrio of Nanca, of the municipality of Seravia, and the appellees are the lessees of part of said
haciendas. The Nanca-Victorias road has been in existence for at least forty years. the hacenderos located in the
southwestern section of Victorias and the public generally passed over it freely and that it was used for all
purposes of transportation of farm produce, animals, etc. and by pedestrians as well as carromatas and other
conveyances without break or interruption until two or three years ago when the defendants announced that the
road was private and that those who wished to pass over it with sugar carts would be obliged to pay a toll of ten
centavos all other vehicles, it appears, were permitted to pass free charge. This arrangement seems to have
existed during the years of 1911 and 1912 and part of 1913, the money being collected apparently from some
hacenderos and not from others. There is some reason to believe from the evidence presented by defendants
themselves that the practice of making these payments to hacienda 'Toreno' originated in an attempt to raise a
fund for the repair of the road. There is no evidence that any other hacenderos between Nanca and Victorias or
any other person made any attempt to close the road or to collect toll. On the contrary the road appears to have
been repaired by the hacenderos when it needed repairing and everyone used it on equal terms until the
defendants in 1910 or 1911 interposed the objection that the road in dispute was private. This we think is a fair
deduction from the evidence and although it is asserted that toll was collected at an earlier date by the late
Leon Montinola, brother of the defendant Ruperto Montinola, there is no tangible evidence that this was so and
that toll has been paid only during the years of 1911, 1912, and part of 1913. Upon these averments of fact the
plaintiffs prayed for a judgment that they are entitled to use the road in question as they have been using it in
the past, and that a perpetual injunction be issued against plaintiffs restraining them from impending such use.
Upon the filing of the complaint, plaintiffs moved the court to issue a preliminary injunction restraining
defendants from interfering with the use of the road during the pendency of the suit, which motion was granted
by the court.
Wheter or Not the Nanca-Victorias road at the point at which it traverses the Hacienda Toreno a public highway
or not?
The trial judge, in holding that the road in question is public, bases in conclusion upon the fact, which he deems
to have been proven, that the road has been in existence "from time immemorial," and had been "continiously
used as a public road . . . and open to public as such for thirty or forty years . . . until . . . the defendants
undertook to claim it as private and to collect toll for the passage of carts." There is no doubt that for the past
thirty or forty years a road has existed between the former site of the town of Victorias and the barrio of Nanca,
of the municipality of Seravia, and that this road crosses defendants' hacienda.
The court also held that it appears from the government grant issued in 1885 to the original owner of the
hacienda adjacent to the Hacienda Toreno on its western boundary, that the Nanca-Victorias road at that time
separated that estate from the Jalbuena Hacienda, and that these facts constitute "circumstantial evidence that
the road was in existence in 1885." We have examined the document to which the court refers, and we agree
that the road in question existed in 1885; but we do not believe that the document in question proves that the
road was public highway.
There is admittedly no evidence to show that the land occupied by the road here in question was any time
conveyed to the general government or any of its political subdivisions by the present or any of the former
owners of the Hacienda Toreno. There is no evidence, even remotely, tending to show that the road existed prior
to the time when the property now known as the Hacienda Toreno passed from the State into private ownership.
The record fails to disclose any evidence whatever tending to show that the Government has at any time
asserted any right or title in or to the land occupied by the road, or that it has incurred any expense whatever in
its upkeep or construction. The Civil Code defines as public roads those which are constructed by the State (art.

339), and as provincial and town roads those "the expense of which is borne by such towns or provinces." (Civil
Code, art. 344.) While it is not contended that this definition is exclusive, it does show that during the Spanish
regime, under normal conditions, roads which were public were maintained at the public expense, and that the
fact that at no time was any expense incurred by the Government with respect to the road here in question
tends strongly to support the contention of the defendants that it is private way.
The evidence shows that the repairs were made by the owners of the estates benefited by the road, and by their
laborers, as a pure voluntary act for their own convenience and interest. There being no evidence of a direct
grant to the government of the land occupied by the road in question or that any Government funds or labor
were expended upon it, the question presents itself whether the use to which the road has been put was such as
to justify the conclusion of the lower court that it has become public property. But in this case there is no such
evidence, and the claims of plaintiffs, whether regarded as members of the public asserting a right to use the
road as such, or as persons claiming a private easement of way over the land of another must be regarded as
resting upon the mere fact of user.
If the owner of a tract of land, to accommodate his neighbors or the public in general, permits them to cross his
property, it is reasonable to suppose that it is not his intention, in so doing, to divest himself of the ownership of
the land so used, or to establish an easement upon it and that the persons to whom such permission, tacit or
express, is granted, do not regard their privilege of use as being based upon an essentially revocable license. If
the use continues for a long period of time, no change being made in the relations of the parties by any express
or implied agreement, does the owner of the property affected lose his right of revocation? Or, putting the same
question in another form, does the mere permissive use ripen into title by prescription?
The facts established by the evidence it does not appear that the road in question is a public road or way. We
are also of the opinion that plaintiffs have failed to show that they have acquired by prescription a private right
of passage over the lands of defendants. The supreme court of Spain has decided that under the law in force
before the enactment of the Civil Code, the easement of way was discontinous, and that while such an
easement might be acquired by prescription, it must be used in good faith, in the belief of the existence of the
right, and such user must have been continuous from time immemorial. In the appealed decision the court
below says that the plaintiffs and their predecessors made use of the road in question "from time immemorial,"
but there is no evidence whatever in the record to sup[port this finding, although it is true that the evidence
shows the existence of the road and its use by the
While in the allegations from the plaintiffs' complaint it might be inferred that it was their purpose to seek to
impose upon the defendants the easement to which arts. 564 et seq. of the Civil Code relate, that purpose was
evidently abandoned, and the case was tried upon a wholly different theory. Proof was offered to show that the
right of passage across defendants' land is necessary to enable plaintiffs to get their products to market, but
there was no offer on their part to pay defendants the indemnity required by section 564.