Adequate passage
An easement is an encumbrance imposed upon a land (servient estate) for the benefit of another land (dominant) belonging to a different owner. It may be established by law (legal easement) or by the will of the owners (voluntary easement). This case of the spouses Val and Lyn vs. Frank and Carrie tells us what the dominant estate owner must prove to claim a voluntary or legal easement.
The case involved a parcel of land containing an area of 380 square meters bounded on its north, east and west sides by other lots and on the south side by a creek belonging to the spouses Frank and Carrie.
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Subsequently, Frank and Carrie built a concrete wall on the western side of the subject property. Believing that the said side was the intended road right-of-way mentioned in the deed, Val and Lyn went to the barangay for mediation and conciliation. But Frank and Carrie did not or failed to attend the conferences scheduled by the barangay. Hence in April 1999 or more than six years after the execution of the deed, Val and Lyn filed a complaint before the Regional Trial Court for Specific Performance with damages against Frank and Carrie. They alleged that they purchased the subject property on the strength of Frank and Lyn’s assurance of providing them a road right of way. Thus Val and Lyn prayed that Frank and Carrie be ordered to provide the subject property with a two-meter wide easement and to remove the concrete wall blocking the same. Will their suit prosper?
No. Article 1358 of the Civil Code provides that any transaction involving the sale or disposition of real property must be in writing. The stipulation harped upon by Val and Lyn that “they shall be provided a two-meter wide right of way on the western side of their lot but which is not included in this sale” is not a disposition of real property. The proviso that the intended grant of the right of way is “not included in this sale” could only mean that the parties would have to enter into a separate and distinct agreement for the purpose. The use of the word “shall” which is imperative or mandatory in its ordinary signification, should be construed as merely permissive where, as in the case at bar, no public benefit or private right requires it to be given an imperative meaning. Besides, a document stipulating a voluntary easement must be recorded in the Registry of Property in order not to prejudice third parties (Article 708 and 709, Civil Code).
Val and Lyn are neither entitled to a legal or compulsory easement of right of way. For to be entitled to a legal easement, they have to prove following requisites: (1) the property is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity must be paid; (3) the isolation is not the result of the owner of the dominant estate’s own acts; (4) the right of way claimed is at the point least prejudicial to the servient estate; and (5) the distance from the dominant estate to a public highway is the shortest.
In this case, Val and Lyn and their family are also owners of two properties adjoining the subject property that have access to two public roads or highways. Since they have more than adequate passage to two public roads, they have no right to demand from Frank and Carrie an easement on the western side of the latter’s lot (
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