On easement of right of way
A common problem among neighboring property owners is the designation of a right of way. Questions such as how it should be established and when one may legally enforce the same arise.
Published in Daily Tribune on April 15, 2022
by: Migmar Bernped S. Francisco
A common problem among neighboring property owners is the designation of a right of way. Questions such as how it should be established and when one may legally enforce the same arise. For these matters, the provisions of the Civil Code may be resorted to.
Article 613 of the Civil Code defines an easement or servitude as a burden imposed upon an immovable/real property (called the servient estate) for the benefit of another immovable (the dominant estate) belonging to a different owner. In easements of right of way, one may be demanded from the servient estate when the dominant estate has no adequate outlet to a public road.
Jurisprudence provides four requisites before an easement of right of way may be conferred: First, the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; second, there is payment of indemnity; third, the isolation is not due to the acts of the proprietor of the dominant estate; and fourth, the right of way claimed is at the point least prejudicial to the servient estate and insofar as consistent with the rule, where the distance from the dominant estate to a public highway may be the shortest.
As to the first requirement, it is necessary that the dominant estate has no access to a public road other than the right of way demanded against the servient estate. If there exists such outlet, no matter how far from the public road and inconvenient for the dominant estate, then an easement that would encumber another property would not be granted.
Anent the second requisite, Article 649 provides that if the easement sought to be established is one of permanent passage where its use is continuous for all the needs of the dominant estate, then the indemnity is the value of the land occupied in addition to the amount of damage caused to the servient estate. If, however, the right of way is limited to necessary passage for the cultivation of estate and for gathering of its crops through the servient estate without having a permanent way, then the indemnity shall only consist of the damage caused by the encumbrance.
Applying the third requirement, the owner of the dominant estate must not have given cause to necessitate the easement, such as when the owner, knowing full well that there is only one passage for ingress and egress, has put up a structure on said passage denying his property adequate access. In such cases, Article 649 provides that the easement is no longer compulsory.
With respect to the last requirement, considering that an easement is an encroachment over the property of another, the same must be constituted in a manner that would cause the least burden or damage on the servient estate, and when proper under the circumstances, one which is the shortest.
Equally important to consider is that the legal conferment of a right of way is not without corresponding obligations. For one, the law provides that while the owner of the servient estate cannot impair in any manner the use of the servitude, the owner of the dominant estate must only use the same for the benefit originally contemplated. Moreover, works necessary for the use and preservation of the servitude may be made at the expense of the owner of the dominant estate. However, such works must not alter or render the servitude more burdensome.
A reading of the foregoing rules unequivocally shows the balancing of interests between the dominant and servient estates. While the law recognizes the accommodation of the dominant estate’s right of way, when warranted under the circumstances, due consideration is also given to the affected property or the servient estate.
