EASEMENT OF RIGHT OF WAY
Art. 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. (564a)
EASEMENT OF RIGHT OF WAY DEFINED
> Easement or privilege by which one person in a particular class of persons is allowed
to pass over another land, usually through one particular path or line
REQUISITES FOR THE EASEMENT
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
PROPER INDEMNITY
1. If the passage is permanent, pay the value of the land occupied by the path plus
damages
2. If temporary, pay for the damages caused
CLASSIFICATION OF RIGHT OF WAY
1. Private
2. public
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.
(565)
N.B: Adequacy to dominant estate
Art. 651. 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. (566a)
WIDTH OF PATH
> The width may be modified from time to time depending on the reasonable needs of
the dominant estate
Art. 652. Whenever a piece of land acquired by sale, exchange or partition, is
surrounded by other estates of the vendor, exchanger, or co-owner, he shall be obliged
to grant a right of way without indemnity.
In case of a simple donation, the donor shall be indemnified by the donee for the
establishment of the right of way. (567a)
RULE IF LAND OF VENDOR IS ISOLATED FROM THE HIGHWAY
> Indemnity included in the purchase price—the buyer is the owner of the dominant
estate
Art. 653. In the case of the preceding article, if it is the land of the grantor that becomes
isolated, he may demand a right of way after paying a indemnity. However, the donor
shall not be liable for indemnity. (n)
RULES IF GRANTOR OR GRANTEE’S LAND IS ENCLOSED
1. If the enclosing estate is that of the grantor, the grantee doesn’t pay indemnity for the
easement
2. If the enclosed estate is that of the grantor, the grantor must pay indemnity
Art. 654. If the right of way is permanent, the necessary repairs shall be made by
the owner of the dominant estate. A proportionate share of the taxes shall be
reimbursed by said owner to the proprietor of the servient estate. (n)
OWNERSHIP OF, REPAIRS AND TAXES ON, THE PATH
1. Even though permanent, the path belongs to the servient estate, and he pays all the
taxes
2. But the dominant estate—
a. Should pay for repairs
b. Should pay proportionate share of taxes to the servient estate
Art. 655. If the right of way granted to a surrounded estate ceases to be necessary
because its owner has joined it to another abutting on a public road, the owner of the
servient estate MAY DEMAND that the easement be extinguished, returning what he
may have received by way of indemnity. The interest on the indemnity shall be deemed
to be in payment of rent for the use of the easement. The same rule shall be applied in
case a new road is opened giving access to the isolated estate. In both cases, the
public highway must substantially meet the needs of the dominant estate in order that
the easement may be extinguished. (568a)
CAUSES FOR EXTINGUISHMENT OF THE EASEMENT OF RIGHT OF WAY
1. Opening of a new road
2. Joining the dominant estate to another
EXTINGUISHMENT NOT AUTOMATIC
> The extinguishment is not automatic
> The law says that the servient estate may demand
> It follows that if he chooses not to demand, the easement remains and he has no duty
to refund the indemnity
