Road right of way woes

By Atty. Eduardo T. Reyes III

Owning a tract of land with no adequate outlet to a public highway could be such a bane.

Isolated lands lose their potential when getting there would be cumbersome or risky. Yet, acquiring a road right of way (ROW) is not easy. It must be pointed out that every landowner has the right to enjoy their property such as its surface and underneath it. This is known as the principle of ad coelum as envisaged in Article 437 of the New Civil Code. Thus, when the owner of an isolated property seeks to pass through the adjoining lot to reach the public highway, it would necessarily interfere with the neighbor’s ad coelum rights which includes the right to privacy.

How then may an easement of ROW be acquired?

Here are some of the most frequently asked questions (FAQs) on acquisition of an easement of ROW.

1)Q: Will the long usage of an access road inside privately-owned land ripen into an easement of ROW?

A: No. An access road established on private land does not become demandable road right of way over time. Long usage does not ripen into an easement of ROW. This is because, under civil law and its jurisprudence, 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 existence of such easements. Thus, easement is continuous if its use is, or may be, incessant without the intervention of any act of man (sic* should be persons to be gender-neutral), like the easement of drainage; and it is discontinuous if it is used at intervals and depends on the act of man, like the easement of right of way.

The easement of right of way is considered discontinuous because it is exercised only if a person passes or sets foot on somebody else’s land.

… In other words, the very exercise of the servitude depends upon the act or intervention of man (sic* should be persons to be gender-neutral) which is the very essence of discontinuous easements. (Sps. Rudy Fernandez and Cristeta Aquino v. Merardo Delfin and Angelita Delfin, G.R. No. 227917, March 17, 2021).

It is settled that a ROW, which is an apparent and discontinuous easement, may only be acquired by title. (Spouses Rosemary D. Gabatan and Alexander N. Gabatan v. Dominga B. Ahlgren, G.R. No. 248685, July 7, 2025) 

2)Q: How may a title be obtained for purposes of acquiring an easement of ROW? 

A: Either by: (1) contract; or, (2) a court order. Technically, it was explained in one Supreme Court decision, that an easement of ROW may be acquired when the owner of the isolated lot: 

(a) had subsequently entered into contractual right of way for the continued use of the land under the principles of voluntary easements; or,

(b) had filed a case for conferment on it of a legal easement of right of way under Article 629 of the Civil Code. (Sps. Rudy Fernandez and Cristeta Aquino v. Merardo Delfin and Angelita Delfin, G.R. No. 227917, March 17, 2021) 

3.Q: In whose favor may an easement of ROW be granted? 

A: (1) Either in favor of the isolated land itself; or, (2) in favor of specific persons. Relatedly, it was held that “Article 613 of the Civil Code provides that: [ a ]n easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner.” (Real servitude). Article 614 provides that: “[s]ervitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong,.” (Personal servitude).  Although this does not mean that all voluntary easements are purely contractual obligations. (Spouses Rosemary D. Gabatan and Alexander N. Gabatan v. Dominga B. Ahlgren, G.R. No. 248685, July 7, 2025).

Notably, if the easement of ROW was established in favor of the isolated land itself (real easement), then regardless of change of ownership, the ROW subsists. 

4)Q: What are the requisites in order for one to demand an easement of ROW?

A: 1. The dominant estate is surrounded by other immovables and has no adequate outlet to a public highway (Art. 649, par. 1);

2. There is payment of proper indemnity (Art. 649, par. 1);
3. The isolation is not due to the acts of the proprietor of the dominant estate (Art. 649, last par.); and,
4. 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).(Williams v. Zerda, G.R. No. 207146, March 15, 2017).

5) How does one landowner establish the need for an easement of ROW? 

A: “To prove the absence of an adequate outlet to a public highway, jurisprudence requires the claimant to allege and prove the accessibility circumstances of all the immovables surrounding the isolated lot. In Sps. Mejorada v. Vertudazo, we held that the first requisite had been met because the claimant was able to prove that “there is no other road which respondents could use leading to [the nearest public road] except the passageway on petitioners’ property;” while in Quimen v. CA, the trial court found that the dominant estate was “totally isolated from the public highway.” (Vargas v. Sta. Lucia Realty and Development, Inc., G.R. No. 191997, July 27, 2022). The “determination of the point least prejudicial to the owners of servient estates (if there are two or more possible sites for an easement) requires a comparative evaluation of the physical conditions of the estates.” (Vargas v. Sta. Lucia Realty and Development, Inc., G.R. No. 191997, July 27, 2022).

6) Q: Is a comparative survey of adjoining lands necessary to prove which route is “least prejudicial”?

A: Yes. The “determination of the point least prejudicial to the owners of servient estates (if there are two or more possible sites for an easement) requires a comparative evaluation of the physical conditions of the estates.” (Vargas v. Sta. Lucia Realty and Development, Inc., G.R. No. 191997, July 27, 2022).

Many of us would lament having no adequate access to a public road. The issue of ROW is commonplace in populous areas or communities and often they could lead not only to enmity among neighbors but would even escalate into violence.

There is no substitute to knowing our legal rights and exercising them in the correct manner in order that we will not only avoid neighborly quarrels but more importantly, we preserve our legal rights for ourselves and our family and generations to come.

(The author is the senior partner of ET Reyes III & Associates (ETRIIILaw)– a law firm based in Iloilo City. He is a litigation attorney, a law professor, MCLE lecturer, bar reviewer and a book author. Among the books he authored is Law on Property and Essentials of Land Registration [2024 Edition] which was on the bestseller’s list in online shops for several months. His website is etriiilaw.com).