Right of way? No way!

BSD Corporation constructed a road which was used by it in hauling and transporting sugarcane to and from its mill site. Years later, an entity known as the “Cooperative” acquired the assets of BSD Corporation.

The relationship between the Cooperative and the residents of the community led by Ed and his friends came to a head when the latter allegedly barricaded the aforementioned road. Consequently, the Cooperative and the other sugar planter’s vehicles were prevented from passing through the disputed road.

The Cooperative argued that its predecessor constructed the disputed road pursuant to an agreement with the owners of the ricefields the road traversed. While conceding that they have no direct evidence of the alleged agreement, the Cooperative posits that circumstantial evidence which, if taken collectively, would prove that it has an easement of right of way over the disputed road.

Q: What is an easement?

A: Easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. By its creation, easement is established either by law (in which case it is a legal easement) or by will of the parties (a voluntary easement). In terms of use, easement may either be continuous or discontinuous.

Q: What is an easement of right of way?

A: The easement of right of way—the privilege of persons or a particular class of persons to pass over another’s land, usually through one particular path or linen—is characterized as a discontinuous easement because its use is in intervals and depends on the act of man.

Q: How is an easement of right of way acquired?

A: Since it is a discontinuous easement, an easement of a right of way may only be acquired by virtue of a title. Thus, Article 622 of the New Civil Code provides that continuous non-apparent easements, and discontinuous ones, whether apparent or not, may be acquired only by virtue of a title.

Q: Was a right of way constituted over the disputed road?

A: No. Except for its bare claim, the Cooperative failed to prove its right by title or by an agreement with the owners of the lands that said road traversed.

Q: Given that there is no agreement for the construction of the disputed road, may the right of way be acquired by prescription?

A: No. Under Article 622 of the Civil Code, discontinuous easements, whether apparent or not, may be acquired only by title. Only continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years.

Q: When is an easement continuous or discontinuous?

A: Easements are either continuous or discontinuous according to the manner they are exercised, not according to the presence of apparent signs or physical indications of the existence of such easements. Thus, easement is continuous if its use is, or may be, incessant without the intervention of any act of man, like the easement of drainage; and it is discontinuous if it is used at intervals and depends on the act of man, like the easement of right of way.

The easement of right of way is considered discontinuous because it  is exercised only if a person passes or sets foot on somebody else’s land. Like a road for the passage of vehicles or persons, an easement of right of way of railroad tracks is discontinuous because the right is exercised only if and when a train operated by a person passes over another’s property. In other words, the very exercise of the servitude depends upon the act or intervention of man which is the very essence of discontinuous easements.

Q: Can the principle of laches and estoppel be invoked by the Cooperative to justify its claim given that BSD Corporation  had been peacefully and continuously using the road without any complaint or opposition on the part of Ed and company?

A: No. The fact that the law categorically states that discontinuous easements cannot be acquired by prescription militates against the Cooperative’s claim of laches. To stress, discontinuous easements can only be acquired by title.

Q: Can the Cooperative avail of a compulsory easement of right of way?

A: Yes, pursuant to the Article 649 of the New Civil Code which states:

“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 cause to the servient estate.”

(Source: Bicol Agro-Industrial Producers Cooperative, Inc. vs. Obias, et al., G.R. No. 172077, October 9, 2009)

Ma. Soledad Deriquito-Mawis is Dean, Lyceum of the Philippines University; Chairman, Philippine Association of Law Schools; founder, Mawis Law Office