Francisco vs. Paez

MARCELO FRANCISCO, plaintiff-appellant,
vs.
TIMOTEO PAEZ and RICARDO JABSON, defendants-appellees.
FACTS:
- In the complaint, the plaintiff claims a right of way, upon payment of indemnity, across defendant
Paez's land, and that the latter recognize the plaintiff's ownership of a piece of land of 23.46
square meters, that he vacate it, and that the defendant indemnify him for the damages arising
from said occupation.
- Defendant Paez answered with a general denial and set up the special defense of prescription.
- Defendant Jabson, in turn, also answered with a general denial, and by way of special defense
denied that the plaintiff has any right of way over his land, because outside of it there is another
possible way to the street, which is shorter and less prejudicial.
- CFI: complaint is dismissed with respect to the first cause of action.
- It is held that the plaintiff is the absolute owner of the piece of land mentioned in the
second cause of action, with an area of 23.46 square meters and the certificate of title
issued in his favor, and he is entitled to the ownership of the small house built of strong
materials by defendant Paez thereon, upon payment of its value, or to compel the
defendant to purchase said land at twenty pesos (P20) per square meter.
- Hence, the petition.
ISSUE:
- W/N the plaintiff's right of way over defendant Paez's land has prescribed or is imprescriptible.
RULING:
- The petition is partly meritorious.
- The Court ruled that we should not lose sight of the fact that although it is true that easements are
extinguished by non-user for twenty years (article 546, No. 1, Civil Code), nevertheless, the case
at bar does not deal with an easement which has been used, while the legal provisio cited is only
applicable to easements which being in use are later abandoned.
- Prescription affects all easements lawfully arisen although they may not have been used.
- Nevertheless, the second paragraph of article 546, number 2, refers to an easement in use,
for one cannot discontinue using what one has never used, and there can be no act, at
least in all the cases, adverse to an inchoate easement.
- Others may be extinguished by non-user, but only with respect to the actual form or manner in
which they had been exercised, and the right or the power to claim the exercise of legal easement
does not prescribe, as occurs especially in the case of the right of way and easement of aqueduct.
- It should be noted that in the case of intermittent easements, such as the right of way, the waiver
must be, if not formal and solemn, at least such as may be obviously gathered from positive acts,
and the mere refraining from claiming the right is not, to our mind, sufficient for the purpose.
- There has also been some discussion as to whether the waiver should be express or implied.
- It may be that the act of walling up a window by the owner of the dominant estate is a
plain act of implied waiver, and yet, this act does not of itself extinguish the easement,
but only serves to mark the beginning of the prescription.
- In intermittent easements (like the one in question), the mere fact of leaving them seems
to indicate a waiver, and yet, it is not sufficient to extinguish them.
- It seems then that as a general rule, an express waiver should be required, but without prejudice to
having the courts decide in exceptional cases that there is an evident waiver, inferred from acts
which reveal it beyond all doubt.
- The mere fact that the plaintiff and his predecessors refrained from claiming the easement,
without any positive act to imply a real waiver, does not, in our opinion, bring the case within the
provision of the aforesaid article 546, No. 5, of the Civil Code.
- Legal easements established in the interest of private individuals may be waived, but not so those
of public utility.
- But the court holds, for the reasons stated above, that said article 546, No. 5, Civil Code, is not
applicable to the instant case, with reference to waiver, nor is No. 2 of the same article, regarding
non-user; and therefore, the plaintiff's right of way cannot be deemed extinguished.
- The judgment appealed from is modified and it is held that, upon payment of the proper
indemnity, the plaintiff is entitled to a right of way from plaintiff's lot through defendant Timoteo
Paez's lot, as provided in articles 564, 565 and concordant articles of the Civil Code.

Francisco vs. Paez

Uploaded by

Copyright:

Available Formats

Francisco vs. Paez

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Francisco vs. Paez

Uploaded by

Copyright:

Available Formats

MARCELO FRANCISCO, plaintiff-appellant,

You might also like