Dear PAO,

What is meant by an easement of right of way? Can my private property be taken for public use under this easement, even if it completely deprives me of the use and enjoyment of my property?

Danna

Dear Danna,

Our laws, specifically Articles 649 and 650 of Republic Act (RA) 386, otherwise known as the New Civil Code of the Philippines, provide for the legal bases of easement of right of way, viz.:

“Article 649. 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 caused to the servient estate.

“In case the right of way is limited to the necessary passage for the cultivation of the estate surrounded by others and for the gathering of its crops through the servient estate without a permanent way, the indemnity shall consist in the payment of the damage caused by such encumbrance.

“This easement is not compulsory if the isolation of the immovable is due to the proprietor’s own acts.

“Article 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.” (Emphasis and underscoring supplied)

In connection with the aforementioned provisions of law, the Supreme Court, in the case of Reyes v. Spouses Valentin and Ramos (GR 194488, Feb. 11, 2015), penned by Associate Justice Marvic M.V.F. Leonen, stated:

“Based on these provisions, the following requisites need to be established before a person becomes entitled to demand the compulsory easement of right of way:

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

“2. Payment of proper indemnity by the owner of the surrounded immovable;

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

“4. 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.

“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 above conditions is imposed on the person who seeks the easement of right of way.” (Emphasis and underscoring supplied)

Be that as it may, a true easement of right of way imposes burdens on another’s property without depriving the owner of its use and enjoyment. Thus, to answer your subsequent queries, jurisprudence (Lloyds Industrial Richfield Corporation v. Napocor, GR 190207, June 30, 2021, Ponente: Associate Justice Marvic M.V.F. Leonen) dictates:

“No less than the Constitution mandates the payment of just compensation for the taking of private property for public use. x x x

“Expropriation, however, is not limited to the taking of property with the corresponding transfer of title from the landowner to the expropriator. Easements of right of way fall within the purview of expropriation, allowed when the restrictions on the landowner’s property rights are not perpetual or indefinite. In such a case, a mere easement fee may suffice. x x x

x x x the acquisition of the right-of-way easement falls within the purview of the power of eminent domain. Such conclusion finds support in similar cases of easement of right-of-way where the Supreme Court sustained the award of just compensation for private property condemned for public use.” (Emphasis and underscoring supplied)

Applying the foregoing, when the burden is too cumbersome as to indefinitely restrict the owner from using the property, the easement is considered a taking within the meaning of the Constitution—in which case, full just compensation, not just an easement fee, must be paid.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]