THE LAW ON EASEMENT OF

RIGHT OF WAY
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.