Daily Tribune (Philippines)

Right of way

Dear Atty. Maan,

Our neighbor needs a right-of-way to access a public road and claims the shortest route is through our lot. We object because it would damage the two houses on our property. He has other alternativ­es, like a bridge over a creek and a vacant lot. Can he compel us to grant him a right-of-way?

Ramon

Based on the facts you presented, your neighbor cannot compel you to grant him a right of way.

Art. 650 of the New Civil Code provides: 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.

If these two criteria (shortest distance and least damage) do not concur in a single tenement, the least prejudice criterion must prevail over the shortest distance criterion. Further, In the case of Calimoso V. Roullo, G.R. 198594, 25 January 2016, the Supreme Court ruled:

“To be entitled to an easement of right-ofway, the following requisites should be met:

“The dominant estate is surrounded by other immovables and has no adequate outlet to a public highway;

“There is the payment of proper indemnity; “The isolation is not due to the acts of the proprietor of the dominant estate; and

“The right-of-way claimed is 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.

“In this case, the establishm­ent of a rightof-way through the petitioner­s’ lot would cause the destructio­n of the wire fence and a house on the petitioner­s’ property. Although this right-of-way has the shortest distance to a public road, it is not the least prejudicia­l considerin­g the destructio­n pointed out, and that an option to traverse two vacant lots without causing any damage, albeit longer, is available. We have held that ‘mere convenienc­e for the dominant estate is not what is required by law as the basis of setting up a compulsory easement; that a longer way may be adopted to avoid injury to the servient estate, such as when there are constructi­ons or walls which can be avoided by a round-about way.’”

Here, the establishm­ent of a right-of-way through the lot you own will destroy the house already standing on the premises. Thus, although this right-of-way has the shortest distance to a public road, it is not the least prejudicia­l. An option to traverse to the bridge or vacant lots without causing any damage, albeit not the shortest distance, is available.

Hope this helps.

Atty. Mary Antonnette Baudi