Make way! Make way! No way!!! | Inquirer Business

Make way! Make way! No way!!!

Alice is the registered owner of a 450-sqm parcel of land. The property used to be part of a bigger lot and is surrounded by estates belonging to other persons.

Alice sought for an easement of right of way from Valentine alleging that her property is isolated without her fault. She claimed that there is no means of ingress or egress to a public highway.

She even identified the portion of his lot where the easement is the “point least prejudicial to the him”.


Despite Alice’s numerous demands and willingness to pay the amount, Valentine refused to accede to her claims.


Valentine contended that the isolation of Alice’s property was due to her mother’s own act of subdividing the property among her children without regard to the pendency of an agrarian case between her and her tenants.

Moreover, Valentine contended that there is a means of ingress or egress to the public highway because adjacent to her property is a canal where a bridge can be constructed as a passageway like what others have done.

Q: What is an easement of right of way?

A:An easement of right of way is a real right. When an easement of right of way is granted to another person, the rights of the property’s owner are limited. An owner may not exercise some of his or her property rights for the benefit of the person who was granted the easement of right of way.

Hence, the burden of proof to show the existence of the requisites for the easement is imposed on the person who seeks the easement of right of way.

Q: What are the requirements that must be complied with before one can be granted of easement of rights?


A: The following requisites need to be established before a person becomes entitled to demand the compulsory easement of right of way:

An immovable is surrounded by other immovables belonging to other persons, and is without adequate outlet to a public highway;

Payment of proper indemnity by the owner of the surrounded immovable;

The isolation of the immovable is not due to its owner’s acts; and

The proposed easement of right of way is established at the point least prejudicial to the servient estate, and insofar as consistent with this rule, where the distance of the dominant estate to a public highway may be the shortest.

Q: Can Alice demand a compulsory easement of right of way?

A: No. She failed to establish that there was no adequate outlet to the public highway and that the proposed easement was the least prejudicial to Valentine’s estate. In fact, there is an adequate exit to a public highway.

Mere convenience for the dominant estate (Alice’s lot) is not what is required by law as the basis of setting up a compulsory easement. Even in the face of necessity, if it can be satisfied without imposing the easement, the same should not be imposed.

In the fact, the Supreme Court refused to impose a right of way over a property although there was an alternative route that was admittedly inconvenient.

Alice also failed to satisfy the requirement of “least prejudicial to the servient estate (Valentine’s estate.)”

Article 650 of the Civil Code 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] public highway.” “Distance” is considered only insofar as it is consistent to the requirement of “least prejudice.”

The criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance although this is a matter of judicial appreciation.

While shortest distance may ordinarily imply least prejudice, it is not always so as when there are permanent structures obstructing the shortest distance; while on the other hand, the longest distance may be free of obstructions and the easiest or most convenient to pass through.

In other words, where the easement may be established on any of several tenements surrounding the dominant estate, the one where the way is shortest and will cause the least damage should be chosen.

However, as elsewhere stated, if these two 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 this case, Alice would have permanent structures – such as the garage, garden, and grotto already installed on respondent’s property—destroyed to accommodate her preferred location for the right of way.

The cost of having to destroy these structures, coupled with the fact that there is an available outlet that can be utilized for the right of way, negates a claim that respondents’ property is the point least prejudicial to the servient estate.

An easement is a limitation on the owner’s right to use his or her property for the benefit of another. By imposing an easement on a property, its owner will have to forego using it for whatever purpose he or she deems most beneficial.

Least prejudice, therefore, is about the suffering of the servient estate. Its value is not determined solely by the price of the property, but also by the value of the owner’s foregone opportunity for use, resulting from the limitations imposed by the easement.

Alice may use another outlet, which may provide longer access from her property to the public highway, but is free from obstructions.

The four-meter wide irrigation canal may be traversed upon construction of a bridge.

(Source: Reyes vs. Spouses Ramos, et al., G.R. No. 194488, February 11, 2015)

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Ma. Soledad Deriquito-Mawis is currently the Dean for the Lyceum of the Philippines University; president of the Philippines Association of Law Schools; and Senior Partner, Gatchalian Castro & Mawis Law Office

TAGS: Business, property, Property Rules

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