560 Phil. 490
SANDOVAL-GUTIERREZ, J.:
FOR ALL THE FOREGOING, judgment is hereby rendered for the plaintiffs as follows:On appeal by petitioner, the Court of Appeals, in its assailed Decision, affirmed the RTC Judgment, thus:NO PRONOUNCEMENT AS TO COSTS.
- Ordering defendant Mr. Leo Winston Brin Lee to grant plaintiffs a right of way on the northern portion of his properties as indicated in Exh.9-Lee measuring "one-meter wide and thirteen meters long;
- Ordering Mr. Leo Winston Brin Lee to demolish the fence/structure to the extent obstructing the right of way hereinabove constituted;
- Ordering plaintiffs to solidarily pay defendant Lee the amount of THREE THOUSAND PESOS (P3,000.00) per sq. m. or a total of THIRTY NINE THOUSAND PESOS (P39,000.00) as payment of indemnity, on or before the complete establishment thereof;
- Further ordering plaintiffs to solidarily pay defendant Lee the amount of TWENTY FIVE THOUSAND PESOS (P25,000.00) as the value of the wall/fence to be demolished likewise on or before the complete establishment of the easement; and
- All counterclaims are hereby dismissed for lack of merit.
SO ORDERED.
WHEREFORE, premises considered, the present appeal is hereby DISMISSED, for lack of merit. The appealed Decision dated June 24, 1997 of the Regional Trial Court of Cebu City, Branch 22 in Civil Case No. CEB-7426 is hereby AFFIRMED.Petitioner filed a motion for reconsideration but it was denied by the appellate court in its Resolution of June 21, 2001.
No pronouncement as to costs.
SO ORDERED.
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.To be entitled to an easement of right of way, the following requisites should be met:
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.
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.
All the above requisites are present here.
- the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art. 649, par. 1);
- there is payment of proper indemnity (Art. 649, par. 1);
- the isolation is not due to the acts of the proprietor of the dominant estate (Art. 649, last par.); and
- the right of way claimed is 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 (Art. 650).[3]
x x x What defendant-appellant insists is that plaintiffs-appellees can use another outlet leading to the nearest road by traversing several small lots and thereafter use the northern portion of his property which he is willing to be the subject of a right of way. The trial court found that plaintiffs-appellees managed to reach the nearest road through any passage available, passing through several lots as they were unobstructed by any structure of fence. However, as correctly ruled by the court a quo, this is not the adequate outlet referred to by law. Plaintiffs-appellees have every right in accordance with law to formally demand for an adequate outlet sufficient for their needs. Moreover, the alternative route referred to by defendant-appellant appears to be merely a proposed outlet, not yet in existence. x x xThe second requisite is that payment of indemnity has been complied with. Respondents have consistently maintained that they are "willing to pay the area affected at a reasonable price that may be fixed by the Court."[4]