March 24, 1998

DAR OPINION NO. 39-98

CARLOS C . EJERCITO

President

Greenfield Development Corporation

Greenfield Building

750 Shaw Blvd., Mandaluyong City

Dear Mr. Ejercito:

This has reference to your letter-request for opinion dated 25 February 1998 on whether or not Greenfield Development can secure a right of way thru portions of CARP awarded lands for the purpose of constructing a service road thereto and ultimately to become the main thoroughfare of the community once the residential project is completed. You state that the Greenfield Development Corporation is about to begin with the development of a first class residential subdivision which requires the construction of a major spine road from the highway, unfortunately, the topography of the area requires the spine road to traverse through the lands awarded to the CARP beneficiaries, hence, your query.

We wish to inform you that easement of right of way may be established between the owner of the dominant estate, in favor of which the easement is established, and the servient estate which is the estate subject of the easement. Article 613 of the New Civil Code provides that an easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. Said provision of law may likewise be deemed applicable to awarded lands under the CARP. However, the legal easement of right of way shall only be established in favor of the dominant estate upon proof of existence of the requisites and compliance with the conditions as provided for under the New Civil Code and in a long line of decisions by the Supreme Court, to wit:

1.         The property is surrounded by other estates;

2.         There must be no adequate outlet to a public highway;

3.         There must be indemnity;

—        if the passage is permanent, the indemnity shall be the value of the land occupied and the amount of damage caused to the servient estate;

4.         It must be established at a point least prejudicial to the servient estate;

5.         The isolation must not be due to the act of the dominant estate; and

6.         It is demandable by the owner or one with a real right.

In addition, said right of way shall likewise be subject to the: following conditions:

a.         There must be consent in writing by the CLOA holders;

b.         The construction of the right of way should be limited and subject to the provisions of the Civil Code; and

c.         The agricultural value of the land where easement of right of way may be established shall not be unduly affected unless a conversion order had been duly secured and approved

Thank you for communicating with us and we hope to have clarified the matter with you.

Very truly yours,

(SGD.) ARTEMIO A. ADASA, JR.

Undersecretary for Legal Affairs, and Policy and Planning