An Easement has been defined as a privilege to pass over the land of another, whereby the holder of the easement, called the Dominant Estate, acquires only a reasonable and usual enjoyment of the property, and the owner of the land, called the Servient Estate, retains the benefits and privileges of ownership consistent with the easement
Simply put, Easement of right of way is an easement or a privilege by which one person or a particular class of persons is allowed to pass over another’s land, usually through one particular path or line.
Easement of Right of Way can be found in Art. 649 of the Civil Code of the Philippines, stating that “The owner, or any person who, by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables pertaining to other persons and without adequate outlet to a public highway, is entitled to demand a right of way through the neighboring estates, after payment of the property indemnity.”
The Supreme Court, in the case of Sps. Bernabe et. al. vs. Sps Bardilas, et.al (G.R. No. 163157, June 27, 2016), quoted its decision
rendered in Valdez v. Tabisula, defined Easement or Servitude as a “real right constituted on another’s property, corporeal, and immovable, by virtue of which the owner of the same has to abstain from doing or to allow somebody else to do something on this property for the benefit of another things or person.”
An easement may either be compulsory or not compulsory, the latter being a situation wherein which the isolation of the immovable is due to the proprietor’s own acts.
Requisites of compulsory easement of way.
The requisites of compulsory easement of way can be summarized as follows:
1. That the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway;
2. After the payment of property indemnity
3. That the isolation was not due to acts of the proprietor of the dominant estate
4. That the right of way claimed is at the point least prejudicial to the servient estate; and in so far as consistent with this rule, where the distance from the dominant estate to a public highway may be the shortest.
It must be reasonable and necessary.
To justify the imposition of this servitude there must be a real, not fictitious or artificial necessity for it. The servitude must be such as to meet the requirements of the dominant tenement. The extent of the right of way must follow and be adapted to the beneficial use for which the dominant tenement is intended.
Adequate outlet to a public highway.
The servient estate can demand from the dominant estate the right of easement of a right of way in order to gain access to a public road or highway. When an isolated estate, the dominant estate, has no access to a public road highway, the owner of such estate can demand from the surrounding estate or estates, the servient estate, a passageway to the public highway.
This may be demanded when:
1. There is absolutely no access to a public highway, and
2. When even if there is one, it is difficult or dangerous to use, or is grossly insufficient.
Easement may also be demanded when access to the public highway is inadequate. However, in the case of Reyes v. Sps. Valentin and Ramos (G.R. No. 194488, February 11, 2015), the Supreme Court explained that the convenience of the dominant estate’s owner is not the basis for granting an easement of right of way, especially if the owner’s needs may be satisfied without imposing the easement. Thus, mere convenience for the dominant estate is not what is required by law as the basis of setting up a compulsory easement.
The point least prejudicial to the servient estate.
Art. 650 of the Civil Code of the Philippines provides that in determining the existence of an easement of right of way, the requirement of least prejudice to the servient estate “trumps “distance between the dominant estate and the pubic highway.
It shall be established upon two criteria:
(1) at the point least prejudicial to the servient state; and
(2) where the distance to a public highway may be the shortest.
The Supreme Court had already affirmed the preferred status of the requirement of “least prejudice” over distance of the dominant estate to the public highway. If these two (2) circumstances do not concur in a single tenement, the way which will cause the least damage should be used, even if it will not be the shortest.
In the next issue, we discuss how the indemnity for the easement of right of way is assessed, the width and extent of passage, whether it can be acquired by the passage of time (prescription), and how it may be extinguished.
The foregoing article is for general informational and educational purposes only. It should not be treated and is not to be considered as legal advice or opinion. The views expressed in this article are those only of the author.
Rhea Mae Senining-Judilla is a Partner at Cokaliong Menchavez & Senining-Judilla Law Offices (CMS LAW), Cebu.
