Easement of Right of

Way
What is it?

Easement or privilege by which one person
or a particular class of persons is allowed to
pass over anothers land, usually through
one particular path or line(cited in Paras,
Civil Code of the Philippines Annotated,
1999 ed.)

The right granted by law to the owner of an
estate which is surrounded by other estates
belonging to other persons and without an
adequate outlet to the public highway to demand
that he be allowed a passageway throughout such
neighboring estates after payment of the proper
indemnity.

Who may demand for compulsory right
of way?


Answer:

Art. 649. The owner, or any person who by virtue of a
real right may cultivate or use any immovable.. , is
entitled to demand a right of way through the neighboring
estates, after payment of the proper indemnity.



How about a mortgagee and the
lessee?
Art. 649. 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 proper indemnity.
Should this easement be established in such a manner that its use may be
continuous for all the needs of the dominant estate, establishing a permanent passage,
the indemnity shall consist of the value of the land occupied and the amount of the
damage caused to the servient estate.
In case the right of way is limited to the necessary passage for the cultivation
of the estate surrounded by others and for the gathering of its crops through the
servient estate without a permanent way, the indemnity shall consist in the payment of
the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the immovable is due to the
proprietors own acts.

Art. 650. The easement of right of way shall be established at the point least
prejudicial to the servient estate, and, insofar as consistent with this rule, where the
distance from the dominant estate to a public highway may be the shortest.
Kinds of Easement Right of
Way


1 Private

2 Public

REQUISITES FOR THE EASEMENT

1. The property is surrounded by estate of others and there is no
adequate outlet to a public highway(Art. 649, par.1)

2. There must be payment of the proper indemnity(Art. 649,
par.1, end)

3. The isolation should not be due to the proprietors own
acts(Art. 649, par.4)

4. It must be established at the point least prejudicial to the
servient estate and insofar as consistent with this rule, where
the distance from the dominant estate to a public highway may
be the shortest(Art. 650)



Who has the burden of proving the
existence of the prerequisites?

It is incumbent upon the owner of the
dominant estate to establish by clear and
convincing evidence the presence of all the
preconditions before his claim for easement
of right of way be granted.

First requisite

Art. 649..surrounded by other immovables
pertaining to other persons and without adequate
outlet to a public highway.

Is it necessary that the dominant estate be
isolated and without adequate outlet to a
public highway?


The isolation should not be due to the proprietors own
acts(Art. 649, par.4)


Art. 649 ..This easement is not compulsory
if the isolation of the immovable is due to
the proprietors own acts.


Problem:

A had already been granted an adequate access to the
public highway through another estate, but the same was no
longer in use because he himself had closed it off by erecting a
stonewall on his lot at the point where such passageway began.

What is the true standard for the grant
of the legal right?

Answer:

Adequacy

In order to justify imposition of the servitude
of right of way, there must be a real, not fictitious
or artificial necessity for it. Mere convenience for
the dominant estate is not what is required by law
as basis for setting up compulsory easement.
Fourth requisite

Art. 650. .least prejudicial to the
servient estate, and, insofar as consistent
with this rule, where the distance from the
dominant estate to a public highway may be
the shortest.
Problem

In order to establish access to public highway, there
is a need to either demolish a store of strong materials
which is right beside the highway or to cut down a mango
tree which would entail a longer route. Which alternative is
preferred?

The criterion of least prejudice to the
servient estate must prevail over the
criterion of shortest distance.
Second requisite


Art. 649...after payment of the
proper indemnity.
Art. 652. Whenever a piece of land acquired by sale, exchange
or partition, is surrounded by other estates of the vendor,
exchanger, or co-owner, he shall be obliged to grant a right of
way without indemnity.
In case of a simple donation, the donor shall be
indemnified by the donee for the establishment of the right of
way. (567a)

Art. 653. In the case of the preceding article, if it is the land of
the grantor that becomes isolated, he may demand a right of
way after paying a indemnity. However, the donor shall not be
liable for indemnity. (n)


Art. 656. If it be indispensable for the construction,
repair, improvement, alteration or beautification of a building,
to carry materials through the estate of another, or to raise
therein scaffolding or other objects necessary for the work, the
owner of such estate shall be obliged to permit the act, after
receiving payment of the proper indemnity for the damage
caused him.

RULE IF LAND OF VENDOR IS ISOLATED FROM THE
HIGHWAY


Indemnity included in the purchase pricethe
buyer is the owner of the dominant estate

RULES IF GRANTOR OR GRANTEES LAND IS
ENCLOSED


1. If the enclosing estate is that of the grantor,
the grantee doesnt pay indemnity for the
easement
2.
2. If the enclosed estate is that of the grantor,
the grantor must pay indemnity


Art. 654. If the right of way is permanent, the necessary repairs
shall be made by the owner of the dominant estate. A
proportionate share of the taxes shall be reimbursed by said
owner to the proprietor of the servient estate.

OWNERSHIP OF, REPAIRS AND TAXES ON, THE
PATH

1. Even though permanent, the path belongs to the servient
estate, and he pays all the taxes

2. 2. But the dominant estate

a. Should pay for repairs
b. Should pay proportionate share of taxes to the
servient estate

CAUSES FOR EXTINGUISHMENT OF THE
EASEMENT OF RIGHT OF WAY


1. Opening of a new road

2. 2. Joining the dominant estate to another
Art. 655. If the right of way granted to a surrounded
estate ceases to be necessary because its owner has joined it to
another abutting on a public road, the owner of the servient
estate may demand that the easement be extinguished,
returning what he may have received by way of indemnity. The
interest on the indemnity shall be deemed to be in payment of
rent for the use of the easement.
The same rule shall be applied in case a new road is
opened giving access to the isolated estate.
In both cases, the public highway must substantially meet
the needs of the dominant estate in order that the easement
may be extinguished. (568a)


Is extinguishment ipso jure?

Answer:

The law says that the servient estate may demand.
It follows that if he chooses not to demand, the
easement remains and he has no duty to refund
the indemnity

Can it be acquired by prescription?

NON-APPLICABILITY OF THE ARTICLE TO A VOLUNTARY
EASEMENT NO RETURN OF INDEMNITY IN CASE OF
TEMPORARY EASEMENT



Art. 656. If it be indispensable for the construction, repair,
improvement, alteration or beautification of a building, to carry
materials through the estate of another, or to raise therein
scaffolding or other objects necessary for the work, the owner
of such estate shall be obliged to permit the act, after receiving
payment of the proper indemnity for the damage caused him.


EASEMENT OF RIGHT OF WAY FOR THE PASSAGE
OF LIVESTOCK: WIDTH

Art. 657. Easements of the right of way for the passage
of livestock known as animal path, animal trail or any other, and
those for watering places, resting places and animal folds, shall
be governed by the ordinances and regulations relating thereto,
and, in the absence thereof, by the usages and customs of the
place.
Without prejudice to rights legally acquired, the animal
path shall not exceed in any case the width of 75 meters, and
the animal trail that of 37 meters and 50 centimeters.
Whenever it is necessary to establish a compulsory
easement of the right of way or for a watering place for animals,
the provisions of this Section and those of Articles 640 and 641
shall be observed. In this case the width shall not exceed 10
meters


1. Animal path75 meters

2. Animal trail37 meters and 50 centimeters

3. Cattle10 meters


Art. 651. The width of the easement of right of way shall
be that which is sufficient for the needs of the dominant
estate, and may accordingly be changed from time to time.
Thank you!!