Civil Law, 2013 Bar — Question VII

ESSAY

In 2005, Andres built a residential house on a lot whose only access to the national highway was a pathway crossing Brando's property. Andres and others have been using this pathway (Pathway A) since 1980. In 2006, Brando fenced off his property, thereby blocking Andres' access to the national highway. Andres demanded that part of the fence be removed to maintain his old access route to the highway (Pathway A), but Brando refused, claiming that there was another available pathway (Pathway B) for ingress and egress to the highway. Andres countered that Pathway B has defects, is circuitous, and is extremely inconvenient to use. To settle their dispute, Andres and Brando hired Damian, a geodetic and civil engineer, to survey and examine the two pathways and the surrounding areas, and to determine the shortest and the least prejudicial way through the servient estates. After the survey, the engineer concluded that Pathway B is the longest route and will need improvements and repairs, but will not significantly affect the use of Brando's property. On the other hand, Pathway A that had long been in place, is the shorter route but would significantly affect the use of Brando's property. In light of the engineer's findings and the circumstances of the case, resolve the parties' right of way dispute. (6%)

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