Read also: EASEMENT OF RIGHT OF WAY
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Opening of a new road may extinguish the legal easement of right of way.
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Joining the dominant estate to another, that is the latter becomes also the property of the dominant owner, which abuts, and therefore has access to the public highway extinguish the legal easement of right of way.
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Public highway must substantially meet the needs of the dominant estate in order that the easement may be extinguished.
An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate.
Easements are established either by law or by the will of the owner. The former are called legal, and the latter, voluntary easements.
Legal easements are ones imposed by law, and which have, for their object, either public use or interest of private persons, as opposed to voluntary easements that are established by the agreements of the parties.
The legal easement of right of way is a privilege by which one person or a particular class of persons is allowed to pass over another’s land, usually thru one particular path or line.
The legal easement of right of way may be extinguished through different means.
Under the New Civil Code:
“If the right of way granted to a surrounded estate ceases to be necessary because its owner has joined it to another abutting on a public road, the owner of the servient estate may demand that the easement be extinguished, returning what he may have received by way of indemnity.
The interest on the indemnity shall be deemed to be in payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened giving access to the isolated estate.
In both cases, the public highway must substantially meet the needs of the dominant estate in order that the easement may be extinguished.”
CAUSES FOR EXTINGUISHMENT OF THE EASEMENT OF RIGHT OF WAY:
- opening of a new road.
- joining the dominant estate to another, that is the latter becomes also the property of the dominant owner, which abuts, and therefore has access to the public highway.
But the new access must be adequate and convenient.
The extinguishment is not automatic, because the law says that the servient owner “may demand.’’ It follows that if he chooses not to demand, the easement remains and he has no duty to refund the indemnity.
The above quoted law only applied to the legal or compulsory easement of right of way, NOT to a voluntary one.
If the easement is temporary, the indemnity does not have to be returned since the damage had already been caused.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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