SPOUSES GREGORIO C. BUSCATO AND ROSARIO P. BUSCATO, PLAINTIFFS-APPELLEES, VS. SPOUSES GALO CALOPE AND LEAH AQUINO-CALOPE, DEFENDANTS-APPELLANTS.

Buscato versus Calope

The Case

This is an ordinary appeal in a civil action for a compulsory easement of right of way. The spouses Gregorio and Rosario Buscato, the plaintiffs, sued the spouses Galo and Leah Calope, the defendants, to compel the establishment of a permanent right of way across the Calope lot so that the Buscato house may reach the national road. The case matters because it gathers into one decision the four requisites of a legal easement of right of way under the Civil Code, and because it shows how the Court weighs the two competing standards of Article 650 — the point least prejudicial to the servient estate, and the shortest distance to the public highway — when the two point in the same direction.

Procedural History

The spouses Buscato first referred their complaint to the Lupon of Barangay Del Carmen Norte, Balilihan, Bohol, but the parties failed to reach an amicable settlement. They then filed a complaint for easement of right of way with the Regional Trial Court, Branch 47 of Tagbilaran City. After trial on the merits, the trial court rendered its decision on 8 September 2011, granting a compulsory easement of right of way in favor of the plaintiffs and ordering them to pay the proper indemnity. The defendants filed a notice of appeal, which the trial court gave due course, and the records were elevated to the Supreme Court. Pending resolution of the appeal, the defendant Leah Aquino-Calope died and was substituted by her surviving heirs. The appeal was resolved by the Supreme Court, which denied it and affirmed the trial court.

Facts

Rosario Buscato and Leah Calope are first cousins. Leah inherited Lot Number 985-B from her mother, Senobia Aquino; that lot abuts the national road and is the servient estate. Behind it lies Lot Number 1029, the property of the spouses Buscato, on which they built their conjugal house. That lot is surrounded by other estates and has no adequate outlet to a public highway.

To reach the national road, the spouses Buscato used a passageway crossing Lot Number 984, owned by Rosario's mother, and Lot Number 985-B, owned by Leah. That passageway is an undeveloped dirt road beside the barangay hall, accessible only by foot, and muddy and difficult to traverse during the rainy season. Because of this, the spouses Buscato used to park their vehicle at the garage of the spouses Calope.

The spouses Buscato asked for an easement of right of way three meters wide along that same passageway so their vehicle could pass. The spouses Calope refused and instead offered an alternative route within the boundary of their lot. The spouses Buscato rejected it because it would pass through another lot, owned by Rosario's sister, making the route circuitous. The spouses Buscato offered to introduce improvements on the passageway, such as cementing it, and to pay the proper indemnity.

Issues

• Whether or not the trial court erred in granting the compulsory easement of right of way despite the claim that the easement would divide the servient estate and destroy its contiguity.
• Whether or not the proposed right of way is at the point least prejudicial to the servient estate and, insofar as consistent with that rule, at the shortest distance to the public highway.
• Whether or not the findings of the court-appointed commissioner, including the valuation used for the indemnity, are valid and binding.
• Whether or not the indemnity awarded is the proper indemnity for a permanent passage.

Applicable Provisions

Article 649 of the Civil Code provides:

Article 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.

This is the source of the right itself, and it conditions the right on payment of the proper indemnity.

The same article continues:

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.

This fixes the measure of indemnity where, as here, the passage is permanent.

The same article further provides:

This easement is not compulsory if the isolation of the immovable is due to the proprietor's own acts.

This is the negative requisite: the isolation must not be the dominant owner's own doing.

Article 650 of the Civil Code provides:

Article 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.

This governs the location of the easement and sets the order of priority between prejudice and distance.

Section 11 of Rule 32 of the 1997 Rules of Civil Procedure provides:

Section 11. Hearing upon report. Upon the expiration of the period of ten days referred to in the preceding section, the report shall be set for hearing, after which the court shall render judgment by adopting, modifying, or rejecting the report in whole or in part or it may receive further evidence or may recommit it with instructions.

This authorizes the trial court to adopt the commissioner's report, which it did.

Ruling

On the first issue, the Court held that all four requisites for an easement of right of way are present. The dominant estate is surrounded by other immovables and has no adequate outlet to a public highway, a fact the defendants admitted at pre-trial. There is payment of proper indemnity, which the plaintiffs repeatedly offered. The isolation is not due to the acts of the plaintiffs, who merely acquired the interior lot by purchase. And the right of way claimed is at the point least prejudicial to the servient estate and, insofar as consistent with that rule, at the shortest distance to the public highway.

On the second issue, the Court rejected the defendants' claim that the easement would cut through the middle of their lot and destroy its contiguity. The commissioner's report showed the right of way at the northernmost portion of the servient estate, affecting no significant structure except a few fruit-bearing trees. The easement would be established on an already existing passageway, and the plaintiffs promised to improve it. The burden is small: the servient estate has a total area of 5,091 square meters, while the right of way measures only 151 square meters with a width of three meters. The Court read Article 650 as requiring the point least prejudicial first, and the shortest distance only insofar as consistent with that rule.

On the third issue, the Court upheld the commissioner's findings. The zonal valuation he used came not from his own estimate but from a certification issued by the Bureau of Internal Revenue. The defendants never objected to his appointment; their own counsel suggested it. They are therefore estopped from questioning his findings, and the trial court properly adopted his report under Section 11 of Rule 32.

On the fourth issue, the Court held that because the passage is permanent, the indemnity must consist of the value of the land occupied and the amount of damage caused to the servient estate. The award of 12,835 pesos for the land and 3,000 pesos for the fruit-bearing trees to be cut down satisfies this measure.

Doctrine

An easement of right of way under Article 649 requires four requisites: the dominant estate is surrounded by other immovables and has no adequate outlet to a public highway; there is payment of proper indemnity; the isolation is not due to the acts of the proprietor of the dominant estate; 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 to the public highway may be the shortest. Under Article 650, the point least prejudicial to the servient estate prevails; the shortest distance yields to it. Where the passage is permanent, the indemnity consists of the value of the land occupied plus the damage caused to the servient estate. A party who suggested the commissioner's appointment and raised no objection to it is estopped from attacking the commissioner's findings, and the trial court may adopt the report under Section 11 of Rule 32.

Disposition

The Supreme Court denied the appeal and affirmed the decision of the Regional Trial Court, Branch 47 of Tagbilaran City, granting the compulsory easement of right of way upon payment of the proper indemnity.

Remember This

Memorize the line: the easement is established at the point least prejudicial to the servient estate, and only insofar as consistent with that rule, at the shortest distance. Examiners use this case to test the four requisites of Article 649, the priority rule of Article 650, and the measure of indemnity for a permanent passage.