Bar Q and A #21

I will rule in favor of Brando. The easement of right of way should be established at a  point least prejudicial to the servient estate where the distance from the dominant estate to the public highway may be the shortest. (Art. 650)

If these two conditions do not concur in one estate, the criterion of least prejudice prevails over shortest distance. (Anastacia Quimen vs. CA and Yolanda Oliveros May 29, 1996)

In this case, to establish the easement on the property of Brando would significantly affect his use of his property whereas while Pathway B may prove to be the longer route, it will cause least prejudice to Brando. Andres’ argument that Pathway B is circuitous and inconvenient to use should not be given weight because the true test of the establishment of an easement is adequacy. Convenience of the dominant estate has never been the gauge for the establishment of the easement. (Costabella Corporation v.  CA  193 SCRA 333; Cristobal vs. Ledesma 291 SCRA 122)

1. Continuous easements are those the use of which is or may be incessant, without the intervention of any act of man, while discontinuous easements are those which are used at intervals and depend upon the acts of man. (Art. 615, Civil Code)

2. Apparent easements are those which are made known and are continually kept in view by external signs that reveal the use and enjoyment of the same, while non- apparent easements are those which show no external indication of their existence. (Art. 615, Civil Code)

3. Positive easements are those which impose upon the owner of the servient estate the obligation of allowing something to be done or of doing it himself, while negative easements are those which prohibit the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. (Art. 615, Civil Code)

The complaint for cancellation of easement of right of way must fail. The failure to annotate the easement upon the title of the servient estate is not among the grounds for extinguishing an easement under Article 631 of the NCC. Under Article 617, easements are inseparable from the estate to which they actively or passively belong. Once it attaches, it can only be extinguished under Article 631, and they exist even if they are not stated or annotated as an encumbrance on the Torrens title of the servient estate. (II Tolentino 326, 1987 ed.)

A. Yes. Ava has the right to demand from Julia the activation of the right of way, for the following reasons:

1. The easement of the right of way is a real right which attaches to, and is inseparable from, the estate to which it belongs.

2. The sale of the property includes the easement or servitude, even if the deed of sale is silent on the matter.

3. The vendee of the property in which a servitude or easement exists cannot close or put obstructions thereon to prevent the dominant estate from using it.

4. Ava’s working abroad for more than ten (10) years should not be construed as non-user, because it cannot be implied from the fact that she or those she left behind to cultivate the lot no longer use the right of way.

5. Renunciation or waiver of an easement must be specific, clear, express and made in a public instrument in accordance of Art. 1358 of the NCC.

B. Yes. Ava has the option to demand a right of way on any of the remaining lots of Franz more so after Franz sold lot C to Julia. The essential elements of a legal right of way under Art. 649 and 650 of the NCC are complied with.

1) The requisites for a compulsory easement of right of way are: (a) the dominant estate is surrounded by other immovables and is without an adequate outlet to a public street or highway; (b) proper indemnity must be paid; (c) the isolation must not be due to the acts of the owner of the dominant estate; and (d) the right of way claimed is at a point least prejudicial to the servient estate and, insofar as is consistent with this rule, where the distance to the street or highway is shortest. (Art. 650, NCC)

2) No, David is not entitled to the right of way being claimed. The isolation of his subdivision was due to his own act or omission because he did not develop into an access road the rice field which he was supposed to purchase according to his own representation when he applied for a license to establish the subdivision. (Floro v. Llenado, 244 SCRA713)

a) Don did not acquire an easement of right of way. His passage through Ernie’s land was by mere acquiescence or tolerance. He cannot claim to have acquired the easement of right of way by prescription, because this easement is discontinuous although apparent. Only continuous and apparent easements can be acquired by prescription of 10 years of uninterrupted use and enjoyment.

b) Prior to the grant of an easement, the buyers of the dominant estate have no other right than to compel grant of easement of right of way. Since the properties of the buyers are surrounded by other immovable and has no adequate outlet to a public highway and the isolation is not due to their acts, buyers may demand an easement of a right of way provided proper indemnity is paid and the right of way demanded is the shortest and least prejudicial to Ernie.

Dylan may not be legally required to afford Tyler a right of way through his property, because Tyler already has an adequate outlet to the public highway through his Riley’s lot. One of the requisites for a compulsory grant of right of way is that the estate of the claimant of a right of way must be isolated and without adequate outlet to a public highway. The true standard for the grant of compulsory right of way is “adequacy” of outlet going to a public highway and not the convenience of the dominant estate. In the case at bar, there is already an existing adequate outlet from the dominant estate to a public highway. Even if said outlet be inconvenient, the need to open up another legal easement or servitude is entirely unjustified [Article 649, NCC; Dichoso Jr. v. Marcos, G.R. No. 180282 (2011); Costabella Corp. v. CA, G.R. No. 80511 (1991)].

According to Art. 694 of the Civil Code, a nuisance is any act,omission, establishment, business condition of property, or anything else which:
i. Injures or endangers the health or safety of others;or
ii. Annoys or offends the sense; or
iii. Shocks, defies, or disregards decency or morality; or
iv. Obstructs or interferes with the free passage of any public highway or street, or any body of water; or
v. Hinders or impairs the use of property.

A nuisance may be whether public or private. Under Art. 685, a public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger of damage upon individuals may be unequal. A private nuisance, on the other hand, is one that violates only private rights and produces damage to but one or a few persons.

a. A squatter’s hut being an illegal construction, constitutes a public nuisance per se, if it poses problems of health and sanitation. (City of Manila v. Garcia, 19 SCRA 41, [1967]) If the squatter’s hut is built on a private land and hinders or impairs the owner’s use of his or her own property, then it would constitute a private nuisance.

b. A swimming pool is not a nuisance and is an exception to the attractive nuisance doctrine. (Hidalgo v. Guillermo, 91 Phil. 488 [1952]) It generally does not cause an injury, harm or prejudice to an individual or the public. (Art. 694, par. 1)

c. A house of prostitution is a public nuisance because it shocks or disregards the decency or morality of the community. (Art. 694 par. 3, Civil Code)

d. A noisy or dangerous factory even if built in a private land may be considered a nuisance if it offends the sense of the owners of the adjacent property or poses a danger to their safety. (Art. 694, par. 1, Civil Code) This kind of nuisance may be classified as a public nuisance if it affects and annoys those who come within its sphere.

e. Uncollected garbage can be injurious to health and even the environment. It is thus, considered a public nuisance.