Easement of Right of Way

          Easement- an encumbrance imposed upon an immovable for the benefit of a community or one or more persons or for the benefit of another immovable belonging to a different owner (cited in Paras, Civil Code of the Philippines Annotated, 1999 ed.).

          Easement of Right of Way is the easement or privilege by which one person or a particular class of persons is allowed to pass over another’s land, usually through one particular path or line (cited in Paras, Civil Code of the Philippines Annotated, 1999 ed.).

          It should be remembered that to be entitled to a legal easement of right of way, the following requisites must be satisfied: (1) the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; (2) proper indemnity has been paid; (3) the isolation was not due to acts of the proprietor of the dominant estate; and (4) the right of way claimed is at the point least prejudicial to the servient estate (Quintanilla vs. Abangan, G.R. No. 160613, February 12, 2008).

        Article 630 of the Civil Code of the Philippines provides that “The owner of the servient estate retains the ownership of the portion on which the easement is established, and may use the same in such a manner as not to affect the exercise of the easement.”

          However, in a case pending before the court where the owner of the dominant estate claims for his right for easement of right of way, the owner of the dominant estate may file an ancillary relief for preliminary injunction whenever upon proper proof, he will be able to show that he will suffer damages due to constructions made or to be made by the owner of the servient estate in the area subject of the easement.  Thus, the writ of preliminary injunction was granted by the lower court upon respondent’s showing that he and his poultry business would be injured by the closure of the subject road (Buyco vs. Baraquia, G.R. No. 177486               December 21, 2009).

        In one case the Supreme Court held:

        “We are of opinion that the trial judge correctly held that the record sustains the plaintiff's claim of a right of way as indicated by the arrows marked number 1 on the plan of the land submitted by the commissioner and filed with the record. We think however that the form of the judgment entered by him must be modified. He directed merely that this road "be opened for the public use" and by inference imposed upon the defendant the duty of so doing. But there is nothing in the record which would justify a finding that the defendant is charged with a duty to maintain or construct a road across his land. So far as the record disclosed his only obligation in regard to this right of way over his land is a negative one, that is to say, not to obstruct or hinder the free passage over it of any persons entitled to make use of it. While the prayer of the complaint does not clearly indicate the relief sought by the plaintiffs, we think that it may fairly be construed as a prayer for the permanent injunction, and as that is the relief to which the plaintiffs are entitled upon the facts alleged and proven, the trial court should have granted a permanent injunction prohibiting the defendant from obstructing, by the maintenance of fences or otherwise, the plaintiffs' passage over the ancient right of way, which the trial court found to be in a direct line a indicated by the arrows marked No. 1 on the commissioner's plan. (Resolme vs. Lazo     G.R. No. 8654.    March 30, 1914)

        The writ of preliminary injunction is issued to prevent threatened or continuous irremediable injury to some of the parties before their claims can be thoroughly studied and adjudicated. Its sole aim is to preserve the status quo until the merits of the case can be heard fully. Thus, it will be issued only upon a showing of a clear and unmistakable right that is violated. Moreover, an urgent necessity for its issuance must be shown by the applicant.

        Under Section 3, Rule 58 of the 1997 Revised Rules of Civil Procedure, the issuance of a writ of preliminary injunction may be granted if the following grounds are established, thus:

(a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts, either for a limited period or perpetually;

(b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or

(c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done, some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual.

        Prescinding from the provisions mentioned above, we have consistently held that the requisites of preliminary injunction whether mandatory or prohibitory are the following:

(1) the applicant must have a clear and unmistakable right, that is a right in esse;

(2) there is a material and substantial invasion of such right;

(3) there is an urgent need for the writ to prevent irreparable injury to the applicant; and;

        (4) no other ordinary, speedy, and adequate remedy exists to prevent the infliction of     irreparable injury “(Marquez vs. Sanchez, G.R. No. 141849  February 13, 2007).

        It is well-settled that the sole object of a preliminary injunction, whether prohibitory or mandatory, is to preserve the status quo until the merits of the case can be heard. It is usually granted when it is made to appear that there is a substantial controversy between the parties and one of them is committing an act or threatening the immediate commission of an act that will cause irreparable injury or destroy the status quo of the controversy before a full hearing can be had on the merits of the case. (Buyco vs. Baraquia, G.R. No. 177486  December 21, 2009).