EDUARDO CUAYCONG, ET AL.

, plaintiffs-appellees, 
vs.
RAMONA BENEDICTO, ET AL., defendants-appellants.
G.R. No. L-9989            
March 13, 1918

FISHER, J.:

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.

ISSUE:

Wheter or Not the Nanca-Victorias road at the point at which it traverses the Hacienda Toreno a public highway or not?

HELD:

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.