kanang digests lang.

basta ma answer ang question:

1. when siya required?
- payment of indemnity is a requisite for the grant of compulsory easement of right of way (Art. !" #$$%&
owner of dominant estate should be willing to tender payment for the indemnity (see 'ichoso $ase
below%& if public road na ang portion where the easement is established& owner of dominant estate must
clearly show documents (see (icol Agro )ndustrial and *oodridge cases below% & cannot be acquired
through long use+ prescription kasi discontinuous (see (ogo ,edellin and -uintanilla $ases below%
.. kinsa dapat ang mag request for /ust compensation
- owner sa ser0ient estate (Art. !"& and (icol Agro $ase%& amount of indemnity (factual& not specific see
(icol Agro $ase below%& e0en though the property is not the only outlet& pwede makademand ng legal
easement (see 1ta. ,aria 0s $A case below%
2. puede ba pri0ate party ang pangayuan og /ust compensation?3
- these cases below in0ol0e pri0ate parties
basta ang case kay gusto sa kalaban sa akong client na pabayaron akong client sa road right of way.
nag demand man akong client na i-maintain ang kalsada og dili ibaligya. pero ang kalsada in question kay
recogni4ed na by the city as a road kaso wala nakabutang sa titulo na road siya. so ang /urisprudence will
answer kung nganong dili dapat maghatag akong client og /ust compensation. basta& kana ang brief
0ersion. hehehe3
- icheck nalang nato ulit ang classification sa road kay basi nakapangalan na/ud sa city& or if e0er
magadduce ta documents na public road na siya (*oodridge $ase%& tapos naa koi gicite below
nga case tung remedy.5 nga char.5. haha. see nalang below. 6%
()$78 A9:7-)#';1<:)A8 =:7';$>:1 $77=>:A<)?>& )#$. ((A=$)% 0s >',;#'7 7. 7()A1 et al.
9.:. #o. 1@.A@@ 7ctober "& .AA"
Bacts:
(icol 1ugar 'e0elopment $orporation (()1;'>$7% was established at Cimaao& =ili& $amarines
1ur. )n the same year& ()1;'>$7 constructed a road (the disputed road3% . <he disputed road was used
by ()1;'>$7 in hauling and transporting sugarcane to and from its mill site (=ensumil% and has thus
become indispensable to its sugar milling operations. (icol Agro-)ndustrial =roducers $ooperati0e& )nc.
acquired the assets of ()1;'>$7. <hen it filed a complaint against >dmundo 7bias et al. alleging that
they un/ustifiably barricaded the disputed road by placing bamboos& woods& placards and stones across it&
pre0enting petitionerDs and the other sugar planterDs 0ehicles from passing through the disputed road&
thereby causing serious damage and pre/udice to petitioner.
=etitioner alleged that ()1;'>$7 constructed the disputed road pursuant to an agreement with
the owners of the ricefields the road tra0ersed. =etitioner contends that through prolonged and continuous
use of the disputed road& ()1;'>$7 acquired a right of way o0er the properties of the landowners& which
right of way in turn was acquired by it when it bought ()1;'>$7Ds assets. (icol Agro also argues that the
$A erred in not finding that ()1;'>$7 and respondents forged an agreement for the construction of the
road in dispute.
)ssues + 'iscussion
Nature of Easement of Right of Way

>asement or ser0itude is an encumbrance imposed upon an immo0able for the
benefit of another immo0able belonging to a different owner. (y its creation& easement is
established either by law (in which case it is a legal easement% or by will of the parties (a
0oluntary easement%. )n terms of use& easement may either be continuous or
discontinuous. The easement of right of way the privilege of persons or a
particular class of persons to pass over anothers 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 !ecause of this character & an
easement of a right of way may only be ac"uired by virtue of a title.

Article .. of the #ew $i0il $ode is the applicable law in the case at bar& viz:

Art. ... $ontinuous non-apparent easements& and discontinuous ones&
whether apparent or not& may be ac"uired only by virtue of a title.

(ased on the foregoing& in order for petitioner to acquire the disputed road as an easement of
right-of-way& it was incumbent upon petitioner to show its right by title or by an agreement with the owners
of the lands that said road tra0ersed.
#ay Easement of Right of Way be ac"uired through prescription$ #7.
Applying Bogo-Medellin to the case at bar& the conclusion is ine0itable that the road in dispute is a
discontinuous easement notwithstanding that the same may be apparent. <o reiterate& 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 e5istence of such easements. Cence& e0en if the
road in dispute has been impro0ed and maintained o0er a number of years& it will not change its
discontinuous nature but simply make the same apparent. <o stress& Article .. of the #ew $i0il $ode
states that discontinuous easements& whether apparent or not& may be acquired only by 0irtue of a title.
#ay laches and estoppel be invo%ed against &bias et al in this case$ #7.
=etitioner posits that ()1;'>$7 had been peacefully and continuously using the road without
any complaint or opposition on the part of the respondents for almost twenty years. :espondents& on the
other hand& claim that they merely tolerated the use of their land as ()1;'>$7 was a go0ernment-
owned and controlled corporation and considering that the disputed road was constructed during the time
of ,artial 8aw.

<here is no absolute rule on what constitutes laches. )t is a rule of equity and applied not to
penali4e neglect or sleeping on oneDs rights& but rather to a0oid recogni4ing a right when to do so would
result in a clearly unfair situation. <he question of laches is addressed to the sound discretion of the court
and each case must be decided according to its particular circumstances. )t is the better rule that courts&
under the principle of equity& should not be guided or bound strictly by the statute of limitations or the
doctrine of laches if wrong or in/ustice will result.
<he fact that the law is categorical that discontinuous easements cannot be acquired by
prescription militates against petitionerDs claim of laches. <o stress& discontinuous easements can only be
acquired by title. ,ore importantly& whether or not the elements of laches are present is a question
in0ol0ing a factual determination by the trial court. Cence& the same being a question of fact& it cannot be
the proper sub/ect of herein petition. 7n the other hand& as to the issue of estoppel& this $ourt likewise
agrees with the finding of the $A that petitioner did not present any e0idence that would show an
admission& representation or conduct by respondents that will gi0e rise to estoppel.
's the disputed road classified as a baranggay road$ #o. (factual%
<he :<$ findings of fact thus shows that while certain portions of the property of >dmundo is a barangay
road& the same only pertains to 8ots A& ( and $& or a total of 1&!"@ square meters& which is distinct from
the road in dispute which pertains to different lots (lots > to =% and co0ers a total area of 1A&@@! square
meters.

)n light of the foregoing& considering that the contents of the 1""1 BAA1 is disputable& it was
incumbent on petitioner to present documents which would e0idence the e5propriation of the road in
dispute by the local go0ernment as a barangay road. ;nder the pre0ailing circumstances& the documents
of the e5propriation proceedings would ha0e been the best e0idence a0ailable and the absence thereof is
certainly damaging to petitionerDs cause.
's there a specific formula for the determination of amount of indemnity due$ #7#>.
=etitioner manifested in the :<$ its desire& in the alternati0e& to a0ail of a compulsory easement
of right of way as pro0ided for under Article !" the #ew $i0il $ode. Article !" of the #ew $i0il $ode
states:
<he owner& or any person who by 0irtue of a real right may culti0ate or use any
immo0able& which is surrounded by other immo0ables 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.

1hould 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.
(ased on the foregoing& it is clear that the law does not pro0ide for a specific formula for the
0aluation of the land. #either does the same state that the 0alue of the land must be computed at the time
of taking. <he only primordial consideration is that the same should consist of the 0alue of the land and
the amount of damage caused to the ser0ient estate. Cence& the same is a question of fact which should
be left to the sound discretion of the :<$.
$A ruled:

*e stress that the amount of proper indemnity due to the landowners does not
only relate to the market 0alue of their property but comprehends as well the
corresponding damage caused to the ser0ient estate. )t is undisputed that the
()1;'>$7 began the construction and used of the disputed road in 1"@!. *hile the
maintenance was borne by ()1;'>$7 and now by (A=$) who principally used the
disputed road for their sugar milling operations& the defendants-appellants ha0e been
depri0ed of the use do their ricefields because of the roadDs construction since 1"@!.
<hus& it is but proper to compensate them for this depri0ation& o0er and abo0e the
pre0ailing market 0alue of the affected property. <o our mind& in light of the circumstances
surrounding the acquisition of the affected ricelands and the construction of the disputed
road& particularly the absence of a definiti0e agreement to show that the defendants-
appellants consented to the roadDs construction& we find the =@A.AA per square meter
indemnity awarded by the lower court in accordance with the :eal =roperty Bield
Assessment 1heet #o. AA"-@E& to be fair and reasonable under the circumstances.

*ithal& this $ourt finds no error as to the proper amount of indemnity due respondents as the
findings of both the :<$ and the $A appear to be fair and reasonable under the pre0ailing circumstances
and in accordance with the pro0isions of Article !" of the #ew $i0il $ode.
1=7;1>1 $>1A: and :A-;>8 1<A. ,A:)A and B87:$>:B)'A 1<A. ,A:)A& petitioners& 0s. $7;:<
7B A==>A81& and 1=7;1>1 A:1>#)7 and :718F## BAGA:'7& respondents. H9.:. #o. 1.@E!".
Ganuary .I& 1""IJ
Bacts:
Arsenio and :oslynn Ba/ardo are the registered owners of a piece of land& 8ot #o. 1.! of the 7bando
$adastre. <hey acquired said lot under a 'eed of Absolute 1ale e5ecuted by =edro ,. 1anche4& et al. 8ot
1.! is surrounded by 8ot& a fishpond & on the northeast portion thereofK by 8ot 1.& owned by Blorentino
$ru4& on the southeast portionK by 8ot -a and a portion of 8ot -b owned respecti0ely by 1pouses $esar
and :aquel 1ta. ,aria and Blorcerfida 1ta. ,aria& on the southwestK and by 8ot 1..& owned by the
Gacinto family& on the northwest.
1pouses Ba/ardo filed a complaint against defendants $esar and :aquel 1ta. ,aria or Blorcerfida 1ta.
,aria for the establishment of an easement of right of way. =laintiffs alleged that their lot& 8ot 1.!& is
surrounded by properties belonging to other persons& including those of the defendantsK that since
plaintiffs ha0e no adequate outlet to the pro0incial road& an easement of a right of way passing through
either of the alternati0e defendantsD properties which are directly abutting the pro0incial road would be
plaintiffsD only con0enient& direct and shortest access to and from the pro0incial roadK that plaintiffsD
predecessors-in-interest ha0e been passing through the properties of defendants in going to and from
their lotK that defendantsD mother e0en promised plaintiffsD predecessors-in-interest to grant the latter an
easement of right of way as she acknowledged the absence of an access from their property to the roadK
and that alternati0e defendants& despite plaintiffsD request for a right of way and referral of the dispute to
the barangay officials& refused to grant them an easement. <hus& plaintiffs prayed that an easement of
right of way on the lots of defendants be established in their fa0or
$onsequently& defendants filed their answer to the court below where they alleged that the granting of an
easement in fa0or of plaintiffs would cause them great damage and incon0enienceK and that there is
another access route from plaintiffsD lot to the main road through the property of Blorentino $ru4 which
was likewise abutting the pro0incial road and was being offered for sale.
<he trial court found that based on the 7cular )nspection :eport there was no other way through which
the pri0ate respondents could establish a right of way in order to reach the pro0incial road e5cept by
tra0ersing directly the property of the petitioners. )t further found that (a% no significant structure& sa0e for
a wall or fence about three feet high& would be ad0ersely affectedK (b% there was sufficient 0acant space of
appro5imately 11 meters between petitionersD housesK and (c% petitionersD property could pro0ide the
shortest route from the pro0incial road to the pri0ate respondentsD property. <he $ourt of Appeals
affirmed the trial courtDs decision& but modified the property 0aluation by increasing it from =EA to =.&AAA
per square meter.
)ssues + 'iscussion
(an a compulsory easement of right of way be granted in the case at bar$ F>1. What are the
re"uisites for a compulsory right of way$
All told& the findings of fact of both courts satisfied the following requirements for an estate to be entitled
to a compulsory ser0itude of right of way under the $i0il $ode& to wit:
1. the dominant estate is surrounded by other immo0ables and has no adequate outlet to a public
highway (Art. !"& par. 1%K
.. there is payment of proper indemnity (Art. !"& par. 1%K
2. the isolation is not due to the acts of the proprietor of the dominant estate (Art. !"& last par.%K and
!. the right of way claimed is at the point least pre/udicial to the ser0ient estateK and insofar as consistent
with this rule& where the distance from the dominant estate to a public highway may be the shortest (Art.
EA%.
Anent the first requisite& there is no dispute that the plaintiffs-appelleesD property is surrounded by other
immo0ables owned by different indi0iduals. <he ocular inspection report re0eals that the property of
Arsenio and :oslynn Ba/ardo& is completely surrounded with adobe fence without any point of egress and
ingress to the national road. 1aid plaintiffsD property containing an area of 1&A!2 square meters directly
behind defendantsD property which abuts the national road. 'efendants& spouses $esar and :acquel 1ta.
,aria& are the absolute owners of the parcel of land with an area of E2@ square meters situated on the left
side abutting the national road with their house thereon made of wood and hollow blocks& while defendant
Blorcerfida 1ta. ,aria is the absolute owner of a parcel of land with a similar area of E2@ square meters
situated on the right side and likewise abutting the national road with an impressi0e house thereon of
modern 0intage made of strong materials. As depicted in the rough sketch hereto attached& plaintiffs ha0e
absolutely no means of ingress and egress to their property as the same is completely isolated by
properties owned by other persons. 7n the left side is the property of Blorentino $ru4& on the right side is
the property reportedly owned by the GacintosK and on the front portion are properties owned by
defendants.
=laintiffs-appelleesD property is likewise without adequate outlet to a public highway. <he e5isting
passage way for people (daang tao3% at the back of plaintiffs-appelleesD property leading to the pro0incial
road cannot be considered an adequate outlet for purposes of establishing an easement.
Article E1 of the $ode pro0ides that (t%he width of the easement of right of way shall be that which is
sufficient for the needs of the dominant estate& and may accordingly be changed from time to time.3
<he second requisite for the establishment of an easement of right way& i.e.& payment of indemnity& is
likewise present in this case. =laintiff-appellee spouse :oslynn Ba/ardo testified on direct e5amination
that they are willing to pay the corresponding damages pro0ided for by law if granted the right of way.
<he third requisite is that the isolation of plaintiffs-appelleesD property should not ha0e been due to their
own acts. )n the case under consideration& the isolation of their lot is not due to plaintiffsD acts. <he
property they purchased was already surrounded by other immo0ables lea0ing them no adequate ingress
or egress to a public highway.
9oing now to the fourth requisite of least pre/udice3 and shortest distance&3 *e agree with the lower
court that this twin elements ha0e been complied with in establishing the easement of right of way on
defendants-appellantsD properties.
)t has been commented upon that where there are se0eral tenements surrounding the dominant estate&
and the easement may be established on any of them& the one where the way is shortest and will cause
the least damage should be chosen. (ut if these two circumstances do not concur in a single tenement&
the way which will cause the least damage should be used& e0en if it will not be the shortest. And if the
conditions of the 0arious tenements are the same& all the ad/oining owners should be cited and e5perts
utili4ed to determine where the easement shall be established .
)n the case at bar& the ocular inspection disclosed that there are three options open to the plaintiffs-
appellees as a route to reach the national road& to wit:
(1% <o tra0erse directly through defendantsD property which is the shortest route of appro5imately .A to
.E meters away from the national roadK
(.% <o purchase a right of way from the ad/oining property of Blorentino $ru4 on the left side of their
propertyK and
(2% <o negotiate with Gacinto family on the right side of their property.
Among the three (2% possible ser0ient estates& it is clear that defendants-appellantsD property would afford
the shortest distance from plaintiffs-appelleesD property to the pro0incial road.
,oreo0er& it is the least pre/udicial since as found by the lower court& (i%t appears that there would be no
significant structures to be in/ured in the defendantsD property and the right-of-way to be constructed
thereon would be the shortest of all the alternati0e routes pointed to by the defendants3
#ay a compulsory right of way be granted to private respondents who have two other e)isting
passage ways other than that of petitioners and an alternative vacant lot fronting the provincial
road also ad*acent to private respondents property, which can be used in going to and from
private respondents property$ F>1
=etitioners try to con0ince us that there are two other e5isting passage ways o0er the property of $ru4
and o0er that of Gacinto& as well as a daang tao&3 for pri0ate respondentsD use. 7ur e5amination of the
records yields otherwise. 1aid lots of $ru4 and Gacinto do not ha0e e5isting passage ways for the pri0ate
respondents to use. ,oreo0er& the 7cular )nspection :eport re0eals that the suggested alternati0e ways
through $ru4Ds or GacintoDs properties are longer and circuitous3 than that through petitionersD property.
<his is also clear from the 1ketch =lan submitted by the pri0ate respondents wherein it is readily seen
that the lots of $ru4 and Gacinto are only ad/acent to that of pri0ate respondents unlike that of petitioners
which is directly in front of pri0ate respondentsD property in relation to the public highway.
;nder Article EA of the $i0il $ode& the easement of right of way shall be established at the point least
pre/udicial to the ser0ient estate& and& insofar as consistent with this rule& where the distance from the
dominant estate to a public highway may be the shortest. *here there are se0eral tenements
surrounding the dominant estate& and the easement may be established on any of them& the one where
the way is shortest and will cause the least damage should be chosen.<he conditions of least damage3
and shortest distance3 are both established in one tenement -- petitionersD property.
As to the daang tao3 at the back of pri0ate respondentsD property& it must be stressed that under Article
E1 the width of the easement of right of way shall be that which is sufficient for the needs of the
dominant estate& and may accordingly be changed from time to time. <herefore& the needs of the
dominant estate determine the width of the easement. <he needs of pri0ate respondentsD property could
hardly be ser0ed by this daang tao3 located at the back and which is bordered by a fishpond.
(R'+,'N -'(.&+&, /R, E0E12N -'(.&+& 031-E4, and R&+E#3R'E -'(.&+& ,E !EN'T& vs
,3TR&('N'& 1 #3R(&+ 56R No 789:8: 3pril 77, :977;
Bacts: =etitioners filed a $omplaint for >asement of :ight of *ay against respondent =atrocinio 8.
,arcos. )n their complaint& petitioners alleged that they are the owners of 8ot #o. .1EE2 of the $adastral
1ur0ey of 8aoag $ity& co0ered by <ransfer $ertificate of <itle #o. <-21.1"K while respondent is the owner
of 8ot #o. 1. As petitioners had no access to a public road to and from their property& they claimed to ha0e
used a portion of 8ot #o. 1 in accessing the road since 1"@A. :espondent& howe0er& blocked the
passageway with piles of sand. <hough petitioners ha0e been granted another passageway by the
spouses (en/amin and 1yl0ia Arce (1pouses Arce%& the owners of another ad/acent lot& designated as 8ot
#o. .1EE"-(& the former instituted the complaint before the :<$. :espondent denied that he allowed
anybody to use 8ot #o. 1 as passageway. Ce stated that petitionersD claim of right of way is only due to
e5pediency and not necessity. Ce also maintained that there is an e5isting easement of right of way
a0ailable to petitioners granted by the 1pouses Arce. <hus& there is no need to establish another
easement o0er respondentDs property.
<he :<$ found that petitioners adequately established the requisites to /ustify an easement of
right of way in accordance with Articles !" and EA of the $i0il $ode. <he trial court likewise declared
petitioners in good faith as they e5pressed their willingness to pay proper indemnity.

7n appeal& the $A re0ersed and set aside the :<$ decision and consequently dismissed
petitionersD complaint. $onsidering that a right of way had already been granted by the (other% ser0ient
estate& designated as 8ot #o. .1EE"-( and owned by the 1pouses Arce& the appellate court concluded
that there is no need to establish an easement o0er respondentDs property. <he $A e5plained that& while
the alternati0e route through the property of the 1pouses Arce is longer and circuitous& said access road
is adequate. )t emphasi4ed that the con0enience of the dominant estate is ne0er the gauge for the grant
of compulsory right of way. <hus& the opening of another passageway is un/ustified.
)ssues+ 'iscussion
(an petitioners be entitled to a grant of legal easement of right of way from their
landloc%ed property through the property of #arcos which is the shortest route in going to
and from their property to the public street and where they used to pass$ #7.
<he conferment of a legal easement of right of way is go0erned by Articles !"
and EA of the $i0il $ode& quoted below for easy reference:
1
H1J

3rticle <=> <he owner& or any person who by 0irtue of a real right may culti0ate
or use any immo0able& which is surrounded by other immo0ables 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.

1hould 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 0alue of the land occupied and the amount of the
damage caused to the ser0ient estate.

)n case the right of way is limited to the necessary passage for the culti0ation of
the estate surrounded by others and for the gathering of its crops through the ser0ient
estate without a permanent way& the indemnity shall consist in the payment of the
damages caused by such encumbrance.

<his easement is not compulsory if the isolation of the immo0able is due to the
proprietorDs own acts.

3rticle <?9. <he easement of right of way shall be established at the point least
pre/udicial to the ser0ient estate& and& insofar as consistent with this rule& where the
distance from the dominant estate to a public highway may be the shortest.

<o be entitled to an easement of right of way& the following requisites should be met:

1. <he dominant estate is surrounded by other immo0ables and has no adequate
outlet to a public highwayK

.. <here is payment of proper indemnityK

2. <he isolation is not due to the acts of the proprietor of the dominant estateK
and

!. <he right of way claimed is at the point least pre/udicial to the ser0ient estateK
and insofar as consistent with this rule& where the distance from the dominant estate to a
public highway may be the shortest.
=etitioners may be correct in the theoretical reading of Articles !" and EA of the $i0il $ode& but
they ne0ertheless failed to show sufficient factual e0idence to satisfy the abo0e-enumerated
requirements.
)t must be stressed that& by its 0ery nature& and when considered with reference to the
obligations imposed on the ser0ient estate& an easement in0ol0es an abnormal restriction on the property
rights of the ser0ient owner and is regarded as a charge or encumbrance on the ser0ient estate. )t is
incumbent upon the owner of the dominant estate to establish by clear and con0incing e0idence the
presence of all the preconditions before his claim for easement of right of way may be granted. =etitioners
failed in this regard.
Admittedly& petitioners had been granted a right of way through the other ad/acent lot owned by
the 1pouses Arce. )n fact& other lot owners use the said outlet in going to and coming from the public
highway. $learly& there is an e5isting outlet to and from the public road.
Cowe0er& petitioners claim that the outlet is longer and circuitous& and they ha0e to pass through
other lots owned by different owners before they could get to the highway. *e find petitionersD
concept of what is adequate outlet3 a complete disregard of the well-entrenched doctrine that in
order to /ustify the imposition of an easement of right of way& there must be real& not fictitious or
artificial& necessity for it. ,ere con0enience for the dominant estate is not what is required by law
as the basis of setting up a compulsory easement. >0en in the face of necessity& if it can be
satisfied without imposing the easement& the same should not be imposed.
.
$an ,arcos refuse to grant a right of way on the desired passageway which he closed since
there is another passageway which is more circuitous and burdensome?
<he con0enience of the dominant estate has ne0er been the gauge for the grant of compulsory
right of way. <o be sure& the true standard for the grant of the legal right is adequacy.3 Cence& when there
is already an e5isting adequate outlet from the dominant estate to a public highway& as in this case& e0en
when the said outlet& for one reason or another& be incon0enient& the need to open up another ser0itude is
entirely un/ustified.
.
H.1J

<hus& in Cristobal v. CA, the $ourt disallowed the easement prayed for because an outlet already
e5ists which is a path walk located at the left side of petitionersD property and which is connected to a
1
2
pri0ate road about fi0e hundred (EAA% meters long. <he pri0ate road& in turn& leads to ,a. >lena 1treet&
which is about ..E meters wide& and finally& to ?isayas A0enue. <his outlet was determined by the $ourt to
be sufficient for the needs of the dominant estate.

Also in Floro v. Llenado, we refused to impose a right of way o0er petitionerDs property although
pri0ate respondentDs alternati0e route was admittedly incon0enient because he had to tra0erse se0eral
ricelands and rice paddies belonging to different persons& not to mention that said passage is impassable
during the rainy season.

And in amos v. !atchalian ealty, "nc., this $ourt refused to grant the easement
prayed for e0en if petitioner had to pass through lots belonging to other owners& as
temporary ingress and egress& which lots were grassy& cogonal& and greatly incon0enient
due to flood and mud because such grant would run counter to the pre0ailing
/urisprudence that mere con0enience for the dominant estate does not suffice to ser0e as
basis for the easement.
=aras& $i0il $ode of the =hilippines Annotated
>asement of :ight of *ay is the easement or pri0ilege by which one person or a particular class of
persons is allowed to pass o0er anotherDs land& usually through one particular path or line.
)t should be remembered that to be entitled to a legal easement of right of way& the following
requisites must be satisfied:
(1% the dominant estate is surrounded by other immo0ables and has no adequate outlet to a public
highwayK
(.% proper indemnity has been paidK
(2% the isolation was not due to acts of the proprietor of the dominant estateK and
(!% the right of way claimed is at the point least pre/udicial to the ser0ient estate (-uintanilla 0s. Abangan&
9.:. #o. 1A12& Bebruary 1.& .AAI%.
Who retains the ownership of the portion on which an easement is established$
Article 2A of the $i0il $ode of the =hilippines pro0ides that <he owner of the ser0ient estate retains the
ownership of the portion on which the easement is established& and may use the same in such a manner
as not to affect the e5ercise of the easement.3
What is the remedy of the owner of the dominant estate where the servient estate restricts the
formers right to the easement$
Cowe0er& in a case pending before the court where the owner of the dominant estate claims for his right
for easement of right of way& the owner of the dominant estate may file an ancillary relief for preliminary
in/unction whene0er upon proper proof& he will be able to show that he will suffer damages due to
constructions made or to be made by the owner of the ser0ient estate in the area sub/ect of the
easement. <hus& the writ of preliminary in/unction was granted by the lower court upon respondentDs
showing that he and his poultry business would be in/ured by the closure of the sub/ect road ((uyco 0s.
(araquia& 9.:. #o. 1@@!I 'ecember .1& .AA"%.
)n one case the 1upreme $ourt held:
*e are of opinion that the trial /udge correctly held that the record sustains the plaintiffLs claim of a
right of way as indicated by the arrows marked number 1 on the plan of the land submitted by the
commissioner and filed with the record. *e think howe0er that the form of the /udgment entered by him
must be modified. Ce directed merely that this road Mbe opened for the public useM and by inference
imposed upon the defendant the duty of so doing. (ut there is nothing in the record which would /ustify a
finding that the defendant is charged with a duty to maintain or construct a road across his land. 1o far as
the record disclosed his only obligation in regard to this right of way o0er his land is a negati0e one& that is
to say& not to obstruct or hinder the free passage o0er it of any persons entitled to make use of it. *hile
the prayer of the complaint does not clearly indicate the relief sought by the plaintiffs& we think that it may
fairly be construed as a prayer for the permanent in/unction& and as that is the relief to which the plaintiffs
are entitled upon the facts alleged and pro0en& the trial court should ha0e granted a permanent in/unction
prohibiting the defendant from obstructing& by the maintenance of fences or otherwise& the plaintiffsL
passage o0er the ancient right of way& which the trial court found to be in a direct line a indicated by the
arrows marked #o. 1 on the commissionerLs plan. (:esolme 0s. 8a4o 9.:. #o. IE!. ,arch 2A&
1"1!%
<he writ of preliminary in/unction is issued to pre0ent threatened or continuous irremediable in/ury to
some of the parties before their claims can be thoroughly studied and ad/udicated. )ts sole aim is to
preser0e the status quo until the merits of the case can be heard fully. <hus& it will be issued only upon a
showing of a clear and unmistakable right that is 0iolated. ,oreo0er& an urgent necessity for its issuance
must be shown by the applicant.
;nder 1ection 2& :ule EI of the 1""@ :e0ised :ules of $i0il =rocedure& the issuance of a writ of
preliminary in/unction may be granted if the following grounds are established& thus:
(a% <hat the applicant is entitled to the relief demanded& and the whole or part of such relief consists in
restraining the commission or continuance of the act or acts complained of& or in requiring the
performance of an act or acts& either for a limited period or perpetuallyK
(b% <hat the commission& continuance or non-performance of the act or acts complained of during the
litigation would probably work in/ustice to the applicantK or
(c% <hat a party& court& agency or a person is doing& threatening& or is attempting to do& or is procuring or
suffering to be done& some act or acts probably in 0iolation of the rights of the applicant respecting the
sub/ect of the action or proceeding& and tending to render the /udgment ineffectual.
=rescinding from the pro0isions mentioned abo0e& we ha0e consistently held that the requisites of
preliminary in/unction whether mandatory or prohibitory are the following:
(1% the applicant must ha0e a clear and unmistakable right& that is a right in esseK
(.% there is a material and substantial in0asion of such rightK
(2% there is an urgent need for the writ to pre0ent irreparable in/ury to the applicantK andK
(!% no other ordinary& speedy& and adequate remedy e5ists to pre0ent the infliction of irreparable in/ury
(,arque4 0s. 1anche4& 9.:. #o. 1!1I!" Bebruary 12& .AA@%.
*77':)'9> 1$C778& )#$. and ,)9;>8A G),>#>N-GA?)>: 9.:. #o. 1E@.IE Bebruary 1& .AA@
Bacts: *oodridge is the usufructuary of a parcel of land in the name of spouses >rnesto <. ,atugas and
Bilomena ;. ,atugas. )ts co-petitioner& ,iguela Gimene4OGa0ier& is the registered owner of the ad/acent
lot.

7n the other hand& A:( is the owner and de0eloper of 1oldiers Cills 1ubdi0ision in (acoor&
$a0ite& which is composed of four phases. =hase ) of the subdi0ision was already accessible from the
,arcos Al0are4 A0enue. <o pro0ide the same accessibility to the residents of =hase )) of the subdi0ision&
A:( constructed the disputed road to link the two phases.

As found by the appellate court& petitionersD properties sit right in the middle of se0eral estates:
=hase ) of 1oldiers Cills 1ubdi0ision in the north& a creek in the east and 9reen ?alley 1ubdi0ision the
farther east& a road within 1oldiers Cills 1ubdi0ision )? which leads to the ,arcos Al0are4 A0enue in the
west and =hase ))) of 1oldiers Cills 1ubdi0ision in the south.

)nitially& petitioners offered to pay A:( =EA&AAA as indemnity for the use of the road. Adamant&
A:( refused the offer and fenced the perimeter of the road fronting the properties of petitioners. (y doing
so& A:( effecti0ely cut off petitionersD access to and from the public highway.
After failing to settle the matter amicably& petitioners /ointly filed a complaint in the :<$ of )mus&
$a0ite to en/oin A:( from depri0ing them of the use of the disputed subdi0ision road and to seek a
compulsory right of way after payment of proper indemnity.
<he :<$ ruled that the questioned road is part and parcel of the road network of 1oldiers Cills )?&
=hase )). <his road was constructed pursuant to the appro0ed subdi0ision plan of 1oldiers Cills )?& =hase
)). As such& the road has already been withdrawn from the commerce of men as the ownership of which
was automatically 0ested in the go0ernment without need of any compensation& although it is still
registered in the name of the HA:(J& the moment the subdi0ision plan was appro0ed. *hile it is not yet
donated to the go0ernment is of no moment for donating this road to the go0ernment is a mere formality.
=etitioners insist that A:( is not entitled to be paid any indemnity. =etitioners argue that the
contested road lot is a property of public dominion pursuant to Article !.A
2
of the $i0il $ode.
1pecifically& petitioners point out that the disputed road lot falls under the category others of
similar character3 which is the last clause of Article !.A (1%. Cence& it is a property of public
dominion which can be used by the general public without need for compensation.
$onsequently& it is wrong for A:( to e5clude petitioners from using the road lot or to make them
pay for the use of the same.
's the road already a property of public dominion as to e)cuse petitioners from paying
indemnity for the property$ #7
)n the case of Abellana, #r. v. Co$rt o% Appeals&
!
H12J the $ourt held that the road lots in a pri0ate
subdi0ision are pri0ate property& hence& the local go0ernment should first acquire them by donation&
purchase& or e5propriation& if they are to be utili4ed as a public road.3 7therwise& they remain to be pri0ate
properties of the owner-de0eloper.

$ontrary to the position of petitioners& the use of the subdi0ision roads by the general public does
not strip it of its pri0ate character. <he road is not con0erted into public property by mere tolerance of the
subdi0ision owner of the publicDs passage through it. <o repeat& the local go0ernment should first acquire
them by donation& purchase& or e5propriation& if they are to be utili4ed as a public road.3
3
4