G.R. No. 31118 , January 14, 1930
MARCELO FRANCISCO, plaintiff-appellant, vs. TIMOTEO PAEZ and RICARDO JABSON, defendants-appellees.

FACTS

Plaintiff Marcelo Francisco filed a complaint seeking: (1) a right of way, upon payment of indemnity, across defendant Timoteo Paez’s land; and (2) recognition of his ownership over a 23.46-square-meter portion of land occupied by Paez, including damages. Defendant Paez denied the claims and raised prescription as a defense. Defendant Ricardo Jabson also denied the claims, asserting that an alternative, shorter, and less prejudicial path to the street existed outside his land.

The trial court dismissed the action for the right of way, holding it barred by prescription. It recognized Francisco’s ownership of the 23.46-square-meter lot but gave him the option to either pay for the house built thereon by Paez or compel Paez to purchase the land at a set price. Francisco appealed, contesting the ruling on prescription regarding the right of way.

ISSUE

Whether the plaintiff’s action to enforce a legal easement of right of way has prescribed or is imprescriptible.

RULING

The Supreme Court reversed the trial court’s ruling on prescription and granted the right of way. The Court held that a legal easement of right of way, such as the one claimed, does not prescribe by mere non-use. The provision on extinction of easements by non-user for twenty years (Article 546, No. 1, Civil Code) applies only to easements that were previously in use and later abandoned. Since the right of way here had never been exercised, non-user could not extinguish it. Furthermore, waiver (Article 546, No. 5) requires clear, positive acts, not mere failure to assert the right. The Court modified the judgment, entitling Francisco to a right of way through the shortest and least prejudicial portion of Paez’s land to P. Rada Street, upon payment of proper indemnity, in accordance with Articles 564 and 565 of the Civil Code. No costs were awarded.