Tuesday, April 21, 2009

PREYSLER V. CA (CIVIL)


The CA was correct in its findings that the last actual, peaceful, and uncontested situation that preceded the controversy was solely the access of petitioner and his household to his property outside the subdivision for visits and inspections. At the time the writ was applied for in 1995, there was still no construction going on in the property. It was merely raw land. The use of the subdivision roads for ingress and egress of construction workers, heavy equipment, delivery of construction materials, and installation of power lines, are clearly not part of the status quo in the original writ. Along this time, the CA properly set aside the amended writ and reinstated the original writ.

However, under Article 656 of the New Civil Code, if the RIGHT OF WAY is indispensable for the construction, repair, improvement, alteration, or beautification of a building, a temporary easement is granted after payment of indemnity for the damage caused to the servient estate.

In our view, however, "indispensable" in this instance is not to be construed literally. Great convenience is sufficient. In the present case, the trial court found that irrespective of which route petitioner used in gaining access to his property, he has to pass private respondent's subdivision. Thus, we agree that petitioner may be granted a temporary easement. This temporary easement in the original writ differs from the permanent easement of right of way now being tried in the main case.


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