Dear Atty. Joji,

The owner of the property neighboring ours alleged he requires a right-of-way (RoW) to access a public road. He states that the shortest and most convenient route to the nearest public road passes through our lot. Naturally, we objected to the establishment of the easement because it would cause significant damage to the fences already situated on our property. In fact, he has other right-of-way alternatives, such as the existing bridge over a creek bounding his lot on the northeast, and a vacant lot. May he compel us to grant him a right of way?

Marjorie

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Dear Marjorie,

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. No. 198594, 25 January 2016, the Supreme Court ruled: “To be entitled to an easement of right-of-way, the following requisites should be met:

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

2. There is payment of proper indemnity;

3. The isolation is not due to the acts of the proprietor of the dominant estate; and

4. 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 right-of-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 cause destruction on 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. Joji Alonso