Article 649- 657, Civil Code of the Philippines

EASEMENT OF RIGHT OF WAY

ARTICLE 649
DEFINITION
 Easement or priviledge by which one person or a
particular class of persons is allowed to pass over
another’s land usually thru one particular path or
line

 term “right of way” may refer either to the

easement itself or simple to the strip of land over
whic a passage can be done
KINDS
 Voluntary
 compulsary
REQUISITES

1. The property is surrounded by estate of others and

there is no adequate outlet to a public highway
2. 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
3. There must be payment of the proper indemnity
4. The isolation should not be due to the proprietor’s
own acts
 A property easement is generally written and
recorded with the local assessor’s office. The
documented easement will show up when a title
search is conducted and it stays there indefinitely,
unless both parties agree to remove it.
Can annotation be cancelled when consent of co-owners were
not obtained?

Jartol vs CA
 In extra judicial partition of land, legal easement

was annotated in the deed of partition

 There no convenient access to the highway

 It was alleged that the signatures of the co-

owners on the deed were forged
Can annotation be cancelled when consent of co-owners were
not obtained?

 No. In as much as the easement is legal, not a

mere voluntary easement. Its existence does not
depend on the consent of the co-owners
WHO HAS THE BURDEN OF PROOF?
The burden of proving the existence of the pre-
requisites to validly claim a compulsary right of
way lies on the owner of the dominant estate
Locsin vs. Climaco
Sugar company after the expiration of its contract
with Hcienda San Vicente granting (voluntray)
easement of right of way, claimed that it had a
legal easement of right of way and could thus
continue passing thru the Hacienda
Is the sugar company entitled to legal easement?
Held: No, for failure to meet the requirement of the
law. The owner of the estate may claim
compulsary (legal) right of way after he has
establish the existence of the requisites
THE PROPER INDEMNITY
 If the passage is permanent
 Pay the value of land occupied by the path plus
damages.
 Upon extinction of the easement, imdemnity is
returned withour interest, for the interest is
considered rent
THE PROPER INDEMNITY
 If the passage is temporary
 Pay for the damages cause

e.g. Temporary
- The estate is not being cultivated the whole year
round and harvesting is only once in a while
CLASSIFICATION OF RIGHT OF WAY
 Private
 Public (one available to the general public)
EASEMENT IN FAVOR OF THE GOVERNMENT

 Public high way, way, private way established by law

or any government canal or lateral thereof where the
certificate of title does not state that the bounderies
thereof have been determined

 Easement should be pre-existing

 If not pre-existing, there should be proper
expropriation proceedings
ARTICLE 650, 651
WHERE THE PATH SHOULD BE ESTABLISHED

 At the point least prejudicial to the servient estate

 Distance from the dominant estate to a public
high way may be the shortest

Width of the path

 May be modified from time to time

 Should be sufficient to use of automobiles

ARTICLE 652, 653
RULES IF GRANTOR’S OR GRANTEE’S LAND IS ENCLOSED

 If the ENCLOSING estate is that of the grantor,

the grantee does not pay the indemnity for the
easement

 If the ENCLOSED estate is that of the grantor,

the grantor must pay indemnity (may demand a
right of way after paying indemnity)
EXAMPLE PROBLEM
 A sold to B a parcel of land surrounded by other
estates of A. An outlet without indemnity was
given by A to B, Later, the outlet became useless
because the hiwh way to which it led was closed.
 Is B entitled for another oulet? Will he be paying
indemnity?
ANSWER
 Yes he can demand another outlet but this time
must pay indemnity. The outlet had already been
granted once, that is when the sale was made.
This time necessity arises not because of sale but
because of necessity itself
ARTICLE 654
IF THE RIGHT OF WAY IS PERMANENT...

Ownership, Repairs and Taxes

a. Even though permanent, the path belongs to the
servient estate and he pays all taxes
b. Dominant estate:
 Should pay for repairs

 Should pay proportionate share of taxes to the

servient estate
ARTICLE 655, 656
EXTINGUISHMENT OF RIGHT OF WAY

Causes
 Opening of a new road

 Joining the dominant estate to another

Extinguishment not automatic

 Servient owner may demand

 If he chooses not to demand, easement remains

TEMPORARY EASEMENT OF RIGHT OF WAY

1. The easement here is necessarily only

temporary, nonetheless proper indemnity must
be given
2. Indispensable is not to be construed literally
3. The owner can make use of Article 656
ARTILCE 657
PASSAGE OF LIVESTOCK

WIDTH (maximun)
 Animal path – 75 meters
 Animal trail – 37meters and 50 centimeters
 Cattle – 10 meters (unless prior to the Civil Code,
vested rights have been acquires to a greater width)
END