1907 / Mar

G.R. No. 3544 - MARCH 1907 - PHILIPPINE JURISPRUDENCE CASE NUMBERCASE TITLE G.R. No. 3544March 27, 1907 Carmen Ayala De Roxas vs. Edwin Case G.R. No. 3423March 27, 1907 Dampfschieffs Rhederei Union vs. La Compañia Transatlantica G.R. No. 3236March 27, 1907 Sebastian Abiera vs. Miguel Orin G.R. No. 3037March 27, 1907 Inchausti & Co. vs. John S. Hord G.R. No. 2995March 27, 1907 Victoriano Salazar vs. Cayetana Salazar G.R. No. 3158March 27, 1907 Ciriaco Pilapil, et al. vs. Rosendo Ponciano G.R. No. 3620March 25, 1907 United States vs. Catalino De La Cruz, et al. G.R. No. 3375March 25, 1907 United States vs. Julian Dones G.R. No. 3180March 25, 1907 Mateo Olona vs. Alejandro Pascua G.R. No. 3131March 25, 1907 Herranz & Garriz vs. Ker & Company G.R. No. 3056March 25, 1907 Patricio Perez vs. John C. Sweeney, et al. G.R. No. 2869March 25, 1907 Mateo Cariño vs. Insular Government G.R. No. 2383March 25, 1907 City of Manila vs. Roman Catholic Church G.R. No. 3593March 23, 1907 United States vs. C.W. Ney, et al. G.R. No. 3280March 23, 1907 United States vs. Lucio Camacho G.R. No. 3257March 23, 1907 Petrona Capistrano, et al. vs. Estate of Josefa Gabino G.R. No. 2993March 23, 1907 Lucino Almeida Chan Tanco, et al. vs. Eduardo Abaroa G.R. No. 3473March 22, 1907 J. Casanovas vs. Jno. S. Hord G.R. No. 3459March 22, 1907 Chiong Joc-Soy vs. Jaime Vaño, et al. G.R. No. 3307March 22, 1907 United States vs. Juan Goyenechea G.R. No. 3227March 22, 1907 Pedro Alcantara vs. Ambrosio Alinea, et al. G.R. No. 3352March 21, 1907 Jose Crispulo De Los Reyes, et al. vs. Pio De Los Reyes, et al. G.R. No. 3143March 21, 1907 Angel Ortiz vs. Josefa Aramburo, et al. G.R. No. 3072March 21, 1907 Liong-Wong-Shih vs. Tomas Sunico, et al. G.R. No. 3540March 19, 1907 United States vs. Jose Lopez Basa G.R. No. 3379March 19, 1907 United States vs. Eligio Torrero G.R. No. 2562March 19, 1907 Mariano Veloso vs. Manuel R. Veloso G.R. No. 3324March 18, 1907 United States vs. Benito Lugo, et al. G.R. No. 3178March 18, 1907 United States vs. Mariano Alonso G.R. No. 3083March 18, 1907 Rafaela Pavia, et al. vs. Bibiana De La Rosa, et al. G.R. No. 3241March 16, 1907 United States vs. Tomas Cabanag G.R. No. 3443March 15, 1907 United States vs. Adriano Dumandan G.R. No. 3129March 15, 1907 United States vs. W.B. Barnes G.R. No. 2684March 15, 1907 Fidelity & Deposit Company of Maryland vs. William A. Wilson, et al. G.R. No. 2503March 15, 1907 United States vs. F. Alexander G.R. No. 3499March 14, 1907 Tirso Lopez vs. Jose Delgado G.R. No. 3167March 14, 1907 United States vs. Domingo Cecilio G.R. No. 3071March 14, 1907 United States vs. Feliciano De Guzman G.R. No. 2784March 14, 1907 United States vs. Carlos Gemora G.R. No. 2458March 14, 1907 Salvador Landa vs. Juan S. Sanz G.R. No. 1921March 14, 1907 Alejandra Siguiong vs. Manuel Siguiong, et al. G.R. No. 3064March 13, 1907 Arthur W. Prautch, et al. vs. Henry M. Jones G.R. No. 1056March 13, 1907 Agueda Benedicto De La Rama vs. Esteban De La Rama G.R. No. 3498March 12, 1907 Behn, Meyer & Company, Limited vs. Arnalot Hermanos, Sociedad En Comandita G.R. No. 3475March 12, 1907 United States vs. Tan Gee, et al. G.R. No. 3188March 12, 1907 United States vs. Alec Kiene G.R. No. 3262March 11, 1907 Saturnina Bautista vs. Santiago Calixto G.R. No. 3441March 9, 1907 United States vs. Eulogio De Mesa, et al. G.R. No. 3290March 9, 1907 United States vs. Blas Rabor G.R. No. 1878March 9, 1907 United States vs. Antonio Navarro G.R. No. 3418March 8, 1907 United States vs. Chu Ning Co G.R. No. 3092March 8, 1907 Jose S. Gabriel, et al. vs. Rafael Bartolome, et al. G.R. No. 2982March 8, 1907 Manuel G. Perez vs. Antonio C. Herranz, et al. G.R. No. 3467March 7, 1907 Dolores Soto, et al. vs. Daniel Morelos G.R. No. 3368March 7, 1907 La Compañia General De Tabacos De Filipinas vs. Mateo Trinchera G.R. No. 3186March 7, 1907 Great Council of the United States of the Improved Order of Red Men vs. Veteran Army of the Philippines G.R. No. 2940March 6, 1907 Jose Fianza, et al. vs. J. F. Reavis G.R. No. 3361March 5, 1907 Sisenando Evangelista vs. Brigido Tabayuyong G.R. No. 3247March 5, 1907 United States vs. Angelo San Jose G.R. No. 3148March 5, 1907 Enrique Maria Barretto vs. Municipal Board of Manila G.R. No. 3409March 4, 1907 Jose Iturralde vs. Sotero Evangelista G.R. No. 3433March 2, 1907 Felipe Zamora vs. City of Manila G.R. No. 3287March 2, 1907 Pastor Lerma vs. Cipriana De La Cruz G.R. No. 2978March 2, 1907 United States vs. Casimiro De Los Santos, et al. The Lawphil Project - Arellano Law Foundation, Inc. Carmen Ayala De Roxas vs. Edwin Case Dampfschieffs Rhederei Union vs. La Compañia Transatlantica Sebastian Abiera vs. Miguel Orin Inchausti & Co. vs. John S. Hord Victoriano Salazar vs. Cayetana Salazar Ciriaco Pilapil, et al. vs. Rosendo Ponciano United States vs. Catalino De La Cruz, et al. United States vs. Julian Dones Mateo Olona vs. Alejandro Pascua Herranz & Garriz vs. Ker & Company Patricio Perez vs. John C. Sweeney, et al. Mateo Cariño vs. Insular Government City of Manila vs. Roman Catholic Church United States vs. C.W. Ney, et al. United States vs. Lucio Camacho Petrona Capistrano, et al. vs. Estate of Josefa Gabino Lucino Almeida Chan Tanco, et al. vs. Eduardo Abaroa J. Casanovas vs. Jno. S. Hord Chiong Joc-Soy vs. Jaime Vaño, et al. United States vs. Juan Goyenechea Pedro Alcantara vs. Ambrosio Alinea, et al. Jose Crispulo De Los Reyes, et al. vs. Pio De Los Reyes, et al. Angel Ortiz vs. Josefa Aramburo, et al. Liong-Wong-Shih vs. Tomas Sunico, et al. United States vs. Jose Lopez Basa United States vs. Eligio Torrero Mariano Veloso vs. Manuel R. Veloso United States vs. Benito Lugo, et al. United States vs. Mariano Alonso Rafaela Pavia, et al. vs. Bibiana De La Rosa, et al. United States vs. Tomas Cabanag United States vs. Adriano Dumandan United States vs. W.B. Barnes Fidelity & Deposit Company of Maryland vs. William A. Wilson, et al. United States vs. F. Alexander Tirso Lopez vs. Jose Delgado United States vs. Domingo Cecilio United States vs. Feliciano De Guzman United States vs. Carlos Gemora Salvador Landa vs. Juan S. Sanz Alejandra Siguiong vs. Manuel Siguiong, et al. Arthur W. Prautch, et al. vs. Henry M. Jones Agueda Benedicto De La Rama vs. Esteban De La Rama Behn, Meyer & Company, Limited vs. Arnalot Hermanos, Sociedad En Comandita United States vs. Tan Gee, et al. United States vs. Alec Kiene Saturnina Bautista vs. Santiago Calixto United States vs. Eulogio De Mesa, et al. United States vs. Blas Rabor United States vs. Antonio Navarro United States vs. Chu Ning Co Jose S. Gabriel, et al. vs. Rafael Bartolome, et al. Manuel G. Perez vs. Antonio C. Herranz, et al. Dolores Soto, et al. vs. Daniel Morelos La Compañia General De Tabacos De Filipinas vs. Mateo Trinchera Great Council of the United States of the Improved Order of Red Men vs. Veteran Army of the Philippines Jose Fianza, et al. vs. J. F. Reavis Sisenando Evangelista vs. Brigido Tabayuyong United States vs. Angelo San Jose Enrique Maria Barretto vs. Municipal Board of Manila Jose Iturralde vs. Sotero Evangelista Felipe Zamora vs. City of Manila Pastor Lerma vs. Cipriana De La Cruz United States vs. Casimiro De Los Santos, et al. The Lawphil Project - Arellano Law Foundation, Inc.

Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 3544 March 27, 1907

CARMEN AYALA DE ROXAS,petitioner-appellee,
vs.
EDWIN CASE,respondent-appellant.

Hartigan, Rohde & Gutierrez for appellant.
Del-Pan, Ortigas & Fisher for appellee.

TRACEY,J.:

This appeal from the Court of Land Registration involves a right of way claimed by the appellant, Edwin Case, through a passage along the westerly side of the property of Carmen Ayala de Roxas, in the city of Manila, which is bounded on the north by the Escolta and on the east by the Estero de Sibacon. The appellant owns the two adjoining properties to the south and west, that to the south lying in the rear of appellee's premises, and being the dominant tenement, for the benefit of which the easement is claimed. It also adjoins the rear of that to the west, which faces on the Escolta, but it was formerly owned by another and was occupied as a hotel, to which the only ingress appears to have been at that time through this passageway.

The claim of the appellant is not that the right of way exists by necessity, growing out of the peculiarities of the location, but simply that it arises by prescription, founded not on any written instrument but on immemorial use alone. In regard to the nature of this servitude as apparent and discontinuous, its inadmissibility under the provisions of the existing Civil Code, demanding a formal title, as well as the applicability thereto of the antecedentPartidasand their requirement of an immemorial prescription in order to establish an easement, nothing need be added to the very full exposition of the law in the decision of the judge of the Court of Land Registration.

The appellant, however, here makes the additional point that since the passage of the Code of Civil Procedure in these Islands an immemorial prescription does not call for the same proof as under the Spanish procedure. The thirdPartidain title 31, law 15, after stating the various definite periods applicable to continuous servitudes, says that discontinuous servitudes have no fixed periods, but must be proved by usage or a term so long that men can not remember its commencement. "Tanto tiempo de que non se pueden accordar los omes, quanto ha que lo commencaron a usar."

In many judgments the supreme court of Spain has refused to accept proof of any definite number of years as a satisfaction of this requirement of the law. In the judgment of the 11th of February, 1895, it was said that the court should consider the testimony and number of witnesses over 60 years of age who were acquainted with the servitude during their lives and who also had heard it spoken of in the same way by their elders.

With the first of these requirements the appellant has complied, having produced at least one witness over 60 years of age and two of 59, familiar with the property, by whom the use of the right of way was described as existing in the year 1859, the passage running then between walls not apparently new. The way was about 3.75 meters in width, with an entrance of 2.61 meters on the Escolta, a narrow door on the left, about two-thirds of the way down, leading into the property of the appellee, a wider door toward the end into that of the appellant, and seems to have been used for the benefit of both properties, the servient as well as the dominant tenement, a circumstance which renders doubtful the character of the easement by destroying its exclusiveness.

With the second requirement, that of the declarations of persons older from the memory of the witnesses, the appellant has not complied, urging the inadmissibility of such testimony as hearsay under the present Code of Civil Procedure. Had a question been put calling for such declarations, it would have raised the point whether the right to make use of such proof was saved under paragraph 6 of section 795 of the Code of Civil Procedure, providing "that nothing in this act contained shall be so construed as to divest or injuriously affect any property right that has already become vested under existing law."

We have heretofore held that there is not vested right in a mere rule of evidence. (Aldeguervs.Hoskyn, 2 Phil. Rep., 500.) But the point would be whether this requirement of the Spanish law is not substantive rather than evidential in its nature, so as to survive the repeal. If substantive, then the appellant has failed to comply with it; if not substantive, but merely a matter of procedure, then it must be taken to be replaced by the corresponding provisions of our new code. We find therein no equivalent provision, other than subsection 11 of section 334, establishing as a disputable presumption "that a person is the owner of property from exercising acts of ownership over it or from common reputation of his ownership." The use of the passage proved in this case can not be held to constitute acts of ownership for the reason that it is quite consistent with a mere license to pass, informal in its origin and revocable in its nature. It seems, however, that under the clause quoted, common reputation of ownership of the right of way was open to proof and on this theory of the case such testimony, if available, should have been offered.

We are of the opinion that in order to establish a right or prescription something more is required than the memory of living witnesses. Whether this something should be the declaration of persons long dead, repeated by those who testify, as executed by the Spanish law, or should be the common reputation of ownership recognized by the Code of Procedure, it is unnecessary for us to decide.

On either theory the appellant has failed in his proof and the judgment must be affirmed with the costs of this instance.

After the expiration of twenty days let judgment be entered in accordance herewith and ten days thereafter the case remanded to the court from whence it came for proper action. So ordered.

Arellano, C.J., Torres, and Mapa, JJ.,concur.
Johnson, J.,dissents.