Short answer. Neither of you picks. Article 650 sets the point least prejudicial to the servient estate, and only so far as consistent with that rule, the shortest distance to a public highway. Least prejudice governs; shortness is the tie-breaker, not the starting point.
What the law says
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.
Civil Code, Article 650 — Where the Way Must Be Established. Read the full provision →
The two criteria are ranked, not balanced
This is the sentence people misread. The article does not ask a court to weigh damage against distance and find a compromise. It fixes the location at the point of least prejudice, and reaches for the shortest route only insofar as consistent with this rule. So a longer way that skirts the edge of a property beats a short one driven through the middle of it, and the dominant owner's convenience does not enter the test at all. The burdened land is what the article protects, which is the opposite of the assumption most people bring.
What least prejudicial actually measures
Harm to the servient estate as a working property, not area alone. A route along a boundary or an existing track, avoiding the house, the yard, the productive part of a farm or a planned building envelope, will normally be least prejudicial even if it is appreciably longer. Passing beside a structure, cutting a field in two, taking out mature trees or destroying the privacy of a residence all count heavily against a route. The comparison is between the candidate routes on the same land — which is why these disputes are properly settled with a plan showing more than one option.
The location is only one of the questions
Where the way runs is decided by this article; whether there is a right to one at all is decided before it, by the requisites for a compulsory right of way — including that the dominant estate is genuinely without adequate outlet, that the isolation is not of the owner's own making, and that proper indemnity is paid. It is worth being clear which stage you are arguing about. A servient owner who disputes location has usually conceded the right, and one who disputes the right should not be negotiating over routes.
Argue it with a survey, not on site
Have a licensed surveyor plot the alternatives on a plan showing both properties, the existing improvements, the topography and the distances to the public road. That single document does more than any amount of discussion, because it lets least prejudice be compared rather than asserted. Bring the titles and approved plans of both estates, and any history of how access has been taken until now — an existing informal path is often already the least prejudicial route, and formalising it costs everyone less than moving it.
Cases citing this provision
These Supreme Court decisions cite the provision above. We list them so you can read them yourself; the summaries of what each decided are not ours to give.
- Crispin Dichoso, Jr., et al. vs. Patrocinio, G.R. No. 180282, April 11, 2011 — read the decision on LawPhil →
- Naga Centrum, Inc. vs. Spouses Ramon J. Orzales and Nenita F. Orzales, G.R. No. 203576, September 14, 2016 — read the decision on LawPhil →
- Alicia B. Reyes vs. Spouses Francisco S. Valentin and Anatalia Ramos, G.R. No. 194488, February 11, 2015 — read the decision on LawPhil →
- Apolinardito C. Quintanilla, et al. vs. Pedro Abangan, et al, G.R. No. 160613, February 12, 2008 — read the decision on LawPhil →
Related provisions
- Civil Code, Article 650 — Where the Way Must Be Established
- Civil Code, Article 649 — The Compulsory Right of Way