Easement or Servitude(2)

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1 Art. 613. An easement or servitude is an encumbrance imposed upon an immovable for the benefi t 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 servientestate. (530) Art. 614. Servitudes may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong. (531) Easement or servitude Is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner It may also be established for the benefit of a community, or of one or more persons to whom the encumbered estate does not belong A real right constituted on the corporeal immovable property of another, by virtue of which the owner has to refrain from doing, or must allow someone to do, something on his property, for the benefit of another thing or person.” Easement and Servitude, Distinguished The concept may be defined either from the point of view of the right enjoyed or from the viewpoint of the burden imposed Easementrefers to the right enjoyed by one while “servitude” refers to the burden imposed upon the other. Put a little differently, easement and servitude are but the two aspects of the same concept. The passive aspect of being an encumbrance is what should properly be referred to as the “servitude;” whereas the active aspect of being a right is what should properly be referred to as an “easement.” Easement Is A Real Right Easement is a real right since the right is constituted on the thing itself and not upon its owner or its occupant.

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Transcript of Easement or Servitude(2)

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Art. 613. An easement or servitude is an encumbrance imposed

upon an immovable for the benefi t 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

servientestate. (530)

Art. 614. Servitudes may also be established for the benefit of a

community, or of one or more persons to whom the encumbered

estate does not belong. (531)

Easement or servitude

Is an encumbrance imposed upon an immovable for the benefit of

another immovable belonging to a different owner

It may also be established for the benefit of a community, or of one

or more persons to whom the encumbered estate does not belong

“A real right constituted on the corporeal immovable property of

another, by virtue of which the owner has to refrain from doing, or must

allow someone to do, something on his property, for the benefit of

another thing or person.”

Easement and Servitude, Distinguished

The concept may be defined either from the point of view of the

right enjoyed or from the viewpoint of the burden imposed

“Easement” refers to the right enjoyed by one while “servitude”

refers to the burden imposed upon the other. Put a little differently,

easement and servitude are but the two aspects of the same concept.

The passive aspect of being an encumbrance is what should

properly be referred to as the “servitude;” whereas the active aspect of

being a right is what should properly be referred to as an “easement.”

Easement Is A Real Right

Easement is a real right since the right is constituted on the thing

itself and not upon its owner or its occupant.

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As a consequence, the right avails against every person

whomsoever, who may happen, for the time being, to have any interest in

the thing, or, as adverse possessor, to exercise a right of dominion over it.

The right consists of a limited use and enjoyment of the thingwithout

possession and gives rise to an action in remin favor of the owner of the

tenement of the easement and against any possessor of the servient

estate

Unlike a lease, an easement does not give its holder a right of

possession over the property, but only a right of use for a special and

limited purpose. It gives the holder of the easement an incorporeal

interest on the land, which is non-possessory in character, but grants no

title thereto

It Is Constituted Over An Immovable

Whatever may be the kind of easement, the right is alwaysenjoyed

over an immovable property. From the point of view of the encumbrance,

the same is always imposed upon an immovable property.

The term “immovable” in Article 613 should be understood in its

ordinary or vulgar connotation — as referring to those which are, by their

nature, cannot be moved from one place to another — such as

lands,buildings and roads.

Note: Hence, it is legally impossible to impose an easement over

another easement

It Is Constituted Over Another’s Property

Easement is a right which is enjoyed over another’s property, or jura

in re aliena. It operates as a limitation on the title of the owner of the

servient estate, specifically, his right to use (jus utendi).

Inasmuch as every easement or servitude is a limitation upon one’s

ownership, it follows that no man has a right of servitude in a thing of

which he is the owner: Nulli res suaservit. For if he had, he would have a

right in the thing against himself: which is, of course, absurd.

It is impossible to have an easement over one’s own property in

one’s own favor because things serve their owner by reason of ownership

and not because of any servitude.

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Consequently, if there is a merger in the same person of the

ownership of the dominant and servient estates, the easement is

extinguished.

Since easement is constituted on the corporeal immovable property

of another person, an acknowledgment of the easement is an admission

that the property belongs to another.

Art. 615. Easements may be continuous or discontinuous, apparent

or non-apparent.

Continuous easements are those the use of which is or may be

incessant, without the intervention of any act of man. Discontinuous

easements are those which are used at intervals and depend upon

the acts of man.

Apparent easements are those which are made known and are

continually kept in view by external signs that reveal the use and

enjoyment of the same.

Non-apparent easements are those which show no external

indication of their existence. (532)

Art. 616. Easements are also positive or negative.

A positive easement is one which imposes upon the owner of the

servient estate the obligation of allowing something to be done or of

doing it himself, and a negative easement, that which prohibits the

owner of the servient estate from doing something which he could

lawfully do if the easement did not exist. (533)

Kinds of Easements

Easements are classified, as follows:

(1) As to the recipient of the benefit, it is either real or personal;

(2) As to its source, it is either legal or voluntary.

In case of legal easements, it is either:

(a) public legal easement; or

(b) private legal easement.

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(3) As to its exercise, it is either: continuous or discontinuous,

apparent or non-apparent, and positive or negative.

Real and Personal (Easement) Servitudes

The concept of real servitude, also known as praedialservitude, is defined

in the first paragraph of Article 613 of the New Civil Code.

In real or praedialservitude, the encumbrance is imposed upon an

immovable for the benefit of another immovable belonging to a different

owner.

A real servitude, therefore, requires the existence of two distinct

immovables belonging to different owners to each of which it relates.

The immovable in favor of which the easement is established is

called “dominant estate;” that which is subject thereto, the “servient

estate.”Without these two estates or tenements, there can be no real or

praedialservitude.

Easement of water where lower estates are obliged to allow water naturally

descending from upper estates to flow into them [lower estates].

The concept of personal servitude, on the other hand, is defined in

Article 614 as an encumbrance imposed upon an immovable for

easement pertains to persons without a dominant estate.

In personalservitude or easement, the person in whose favor the

easement isconstituted need not be the owner of any certain estate and

does notrequire a dominant estate because the person in whose favor

theeasement is constituted need not be a property owner.

Thebenefit of a community, or of one or more persons to whom

theencumbered estate does not belong.

In personal servitude, thereis therefore no “owner of a dominant

tenement” to speak of, and the easement pertains to persons without a

dominant estate. In personal servitude or easement, the person in whose

favor the easement is constituted need not be the owner of any certain

estate and does not require a dominant estate because the person in

whose favor the easement is constituted need not be a property owner.

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Easement of right of way for the passage of livestock [See Art. 657] [Art. 614]

or right of way for the community.

Distinction

A real or praedialservitude is said to be imposed upon one of the

two estates, called the servient estate or praediumserviens, for the use or

advantage of the other, called the dominant estate or

praediumdominans.

While it may appear that the right of servitude (jus servitutes) is

enjoyed by the owner or occupant of the dominant estate, he does so

only by reason of such occupancy. In other words, the right of servitude

(jus servitutes) that is being enjoyed by the occupant of the dominant

estate is inseparable from the occupation of the tenement or estate.

Hence, in the ultimate analysis, the right of servitude resides in the

estate (praedium) itself and not in the physical person who successively

occupies or enjoys it.

A personal servitude, on the other hand, is due, not to a thing, but to

a person, independently of the latter’s ownership of any immovable or

estate. If the servitude is established for the advantage of a given person,

the same is inseparable from his person, and necessarily ceases at his

death, unless there is a stipulation to the contrary. In addition, the right to

personal servitude does not extend to the successors-in-interest of the

person to whom the right is granted.

Legal and Voluntary Easement

Easements are established either by law or by the will of theowners. The

former are called “legal” and the latter “voluntary” easements.

Legal easements are those which can be enforced by force of

lawand, therefore, may be established even against the will of the

ownerof the servient estate.Legal easements may have for their

objectseither public use, in which case the easement is called “public

legaleasement,” or the interest of private persons, in which case the

easementis called “private legal easement.”

Examples of legal easements are thefollowing:

(1) Easement relating to waters (Arts. 637-648, NCC);

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(2) Easement of right of way (Arts. 649-657, NCC);

(3) Easement of party wall (Arts. 658-666, NCC);

(4) Easement of light and view (Arts. 667-673, NCC);

(5) Easement of drainage of buildings (Arts. 674-676, NCC);

(6) Easement of distances (Arts. 677-681, NCC);

(7) Easement of nuisance (Arts. 682-683, NCC); and

(8) Easement of lateral and subjacent support (Arts. 684-687, NCC).

A voluntary easement is that which is created by reason of the will of the

owner of the servient estate. Note that only the owner can constitute

servitude over his property since it operates as a limitation upon his title or

ownership. Or, to be more accurate, it is only the owner who can create a

servitude that will bind the servient estate (praediumserviens).

All other servitudes which are imposed by non-owners (suchusufructuary,

possessors-in-good faith, lessee, etc.) do not bind the servient estate but

only the person establishing the same. Necessarily, such servitudes shall

terminate upon the termination of the right of the person establishing the

same.

Continuous and Discontinuous Easements

Under civil law and its jurisprudence, easements are either

continuous or discontinuous according to the manner they are exercised,

not according to the presence of apparent signs or physical indications of

the existence of such easements.

Thus, an easement is continuous if its use is, or may be, incessant

(nonstop) without the intervention of any act of man, like the easement of

drainage;and it is discontinuous if it is used at intervals and depends on

the act of man, like the easement of rightof way.

Stated otherwise, continuous easements are those of whichthe

enjoyment is, or may be, continual, without the necessity of anyactual

interference by man; while discontinuous easements are those,the

enjoyment of which can be had only by the interference of man.

A good example of a continuous easement is the easement of light

and view. On the other hand, easement of right of way is an example of a

discontinuous easement because its use is at intervals and depends upon

the acts of man; it can be exercised only if a man passes or puts his feet

over somebody else’s land.

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continuous easements -- The easement of drainage, the right to support a beam on

another’s wall. [See 4 Manresa 597].). [NOTE: For an easement to be

considered“continuous,” its use does not have to be incessant; itis enough that the use

MAY BE incessant.].

discontinuous easements— they are used at intervals and depend upon the acts of man.

Easement of right of way, because it can be exercised only if a man passes or puts his feet

over somebodyelse’s land.

Apparent and Non-Apparent Easements

Apparent easements are those which are made known and are

continually kept in view by external signs that reveal the use and

enjoyment of the same. Non-apparent easements, on the other hand, are

those which show no external indication of their existence.

Thus, it is the presence of physical or visual signs that classifies an

easement into apparent or non-apparent. Thus, a road (which reveals a

right of way) and a window (which evidences a right to light and view)

are apparent easements, while an easement of not building beyond a

certain height is non-apparent.

apparent easements — those made known and continually kept in view by external signs

that reveal the use and enjoyment of the same. [Examples: Right of way when there is an

alley or a permanent path; dam; window in a party wall visible to both owners. (See 4

Manresa 600).].

[NOTE: The mark or sign need not be seen, but should be susceptible of being seen. (4

Manresa600).].

[NOTE: The easement of aqueduct (channel) is considered always apparent (Art. 646),

whether or not it can be seen. (4 Manresa 599).].

non-apparent easements — they show no external indication of their existence.

[Examples: In general, negative easements, easement of not building to more than a

certain height, easement of lateral and subjacent support; easement of intermediate

distances.(See 4 Manresa 599-601). Also a right of way if there is no visible path or

alley. (See 4 Manresa 600).].

Positive and Negative Easement

A positive easement is one which imposes upon the owner of the

servient estate the obligation of allowing something to be done on his

property (servitutes in patendo); it is negative when it prohibits the owner

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of the servient estate from doing something which he could lawfully do if

the easement did not exist (servitutes in non faciendo).

In positive easement, the right of the owner to exclude any person

from the enjoyment of his property, which right is guaranteed in Article 429

of the New Civil Code, is restricted, in the sense that he is obliged to allow

something to be done on his property. An example of a positive

easement is the easement of right of way. A negative easement, on the

other hand, does not involve any restriction on the owner’s right to

exclude.Instead, the owner is simply prohibited from doing something on

his property which he could lawfully do if the easement did not exist.An

example of a negative easement is an easement not to build higher

(altius non tollendi)

An easement may not consist, however, in the right to demand that the

servient owner do something (servitutes in faciendo). For if it consists in the

right to an act to be done by the owner of the servient estate, such right is

merely in the nature of a jus in personamagainst that determinate person.

Hence, the true reason why a servitude cannot consist in faciendois that,

if it did, the right created could not be jus inrem since the same will not fall

over the thing but on the person.

While Article 616 of the New Civil Code may seem to allow a servitutes in

faciendowhen it says that positive easement may consist in the servient

owner doing something himself, the easements in faciendo here are only

those which are considered as accessory obligations toa

praedialservitude.

As aptly observed by Senator Tolentino, citingRuggiero, an easement can

never consist in a personal prestation to doon the part of the owner of the

servient estate; the obligation imposedupon him is always negative.In

other words, whether the easement is a positive or a negative one, the

obligation imposed upon the servient owner is always a negative one. In

positive easement, for example, the obligation of the servient owner is not

to interfere in the use of his property by the holder of the easement. In

negative easement, on the other hand, the obligation of the servient

owner is to refrain from doing something on his property.

Positive easement-- here the owner of the servient estate is obliged

(a) to allow something to be done on his property (servitus in patendo) or

(b) to do it himself (servitus in faciendo)

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Positive easements are also termed “servitudes of SUFFERANCE or INTRUSION or

SERVICE,” because something is being done on the servient estate. [Examples:

Easementof light and view in a party wall (See Art. 668,par. 1; see also TS, Jan. 8, 1908;

Cortes v. Yu Tibo, 2Phil. 24), right of way, duty to cut off tree branches extending over

the neighboring estates. (See 4 Manresa603-605).].

Negative easement-- here the owner of the servient estate is PROHIBITED to do

something which he could lawfully do were it not for the existence of the easement. (Art.

616). (Example: Easement of light and view when the window or opening is on one’s

own wall or estate. [See Cortes v. Yu Tibo, 2 Phil. 24; Art. 668, par. 2].). (Negative

easements may also be called “servitudes of ABSTENTION or LIMITATIONor

RESTRICTION’’).

May the Easement of Right of Way be acquired by Prescription? (BAR EXAM

QUESTION)

ANS.: No, because it is discontinuous or intermittent. The limitation on the servient

owner’s rights of ownership exists only when the dominant owner actually crosses or

passes over the servient estate. Since the dominant owner cannot be continually crossing

the servient estate, but can do so only at intervals, the easement is necessarily of a

discontinuous nature. (Ronquillo,et al. v. Roco, et al., L-10619, Feb. 28, 1958).

Art. 617. Easements are inseparable from the estate to which they

actively or passively belong. (534)

Art. 618. Easements are indivisible. If the servient estate is divided

between two or more persons, the easement is not modified, and

each of them must bear it on the part which corresponds to him.

If it is the dominant estate that is divided between two or more

persons, each of them may use the easement in its entirety, without

changing the place of its use,

Art. 619. Easements are established either by law or by the will of the

owners. The former are called legal and the latter voluntary

easements. (536)

Characteristics of Easements

Articles 617 and 618 provides for the characteristics of an easement in

that:

(1) it is inseparable from the estate to which it actively or passively

belongs; and (2) it is indivisible.

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Inherence or Intransmissibility

An easement is a real right which falls over the property itself. Or,

from the viewpoint of the obligation imposed, the servitude is imposed

upon the property itself and not upon its owner. Hence, it is said that the

easement or servitude is but an accessory to the tenement of which it

forms part.

In the words ofArticle 617 of the New Civil Code, the easement is

inseparable from the estate to which it actively or passively belongs.

It cannot, therefore, be alienated or mortgaged separately from the

estate to which it forms part. In addition, the servitude can be availed of

against every person who may subsequently acquire ownership of the

estate subject to such encumbrance.

Indivisibility

Easements or servitudes are indivisible. This is but a necessary

consequence of the principle of inseparability of the easement or

servitude from the estates to which it relates. As a consequence, even if

the servient and dominant estates are divided between two or more

persons, the easement or the servitude continues to attach to the estates

originally affected. In case of division of the servient estate into several

parts, for example, all such parts, though divided, shall continue to bear

the encumbrance.

In case of division of the dominant estate into several parts, each and

every part shall continue to enjoy the easement in its entirety and without

any modification.

Section 2. Modes of Acquiring Easements

Art. 620. Continuous and apparent easements are acquired either

by virtue of a title or by prescription of ten years. (537a)

Art. 621. In order to acquire by prescription the easements referred

to in the preceding article, the time of possession shall be computed

thus: in positive easements, from the day on which the owner of the

dominant estate, or the person who may have made use of the

easement, commenced to exercise it upon the servient estate; and

in negative easements, from the day on which the owner of the

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dominant estate forbade, by an instrument acknowledged before a

notary public, the owner of the servient estate, from executing an

act which would be lawful without the easement. (538a)

Art. 622. Continuous non-apparent easements, and discontinuous

ones, whether apparent or not, may be acquired only by virtue of a

title. (539)

Art. 623. The absence of a document or proof showing the origin of

an easement which cannot be acquired by prescription may be

cured by a deed of recognition by the owner of the servient estate

or by a final judgment. (540a)

Art. 624. The existence of an apparent sign of easement between

two estates, established or maintained by the owner of both, shall be

considered, should either of them be alienated, as a title in order

that the easement may continue actively and passively, unless, at

the time the ownership of the two estates is divided, the contrary

should be provided in the title of conveyance of either of them, or

the sign aforesaid should be removed before the execution of the

deed. This provision shall also apply in case of the division of a thing

owned in common by two or more persons. (541a)

Art. 625. Upon the establishment of an easement, all the rights

necessary for its use are considered granted. (542)

Art. 626. The owner of the dominant estate cannot use the easement

except for the benefit of the immovable originally contemplated.

Neither can he exercise the easement in any other manner than that

previously established. (n)

Acquisition of Easements

Modes of Acquiring Easements

There are two (2) modes of acquiring easements:

(1) by titleand

(2) by prescription.

All kinds of easements whether continuous ordiscontinuous, apparent or

non-apparent, positive or negative,may beacquired by title.

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But only continuous and apparent easementsmaybe acquired by virtue of

prescription.In other words, in order foran easement to be acquired by

virtue of prescription it must be bothcontinuous and apparent.

By title as a mode of acquiring servitude, theCivil Code refers to the

“juridical act” which gives birth to the servitude,such as the law,

donations, contracts and wills.

Hence, the act may eitherbe inter vivosormortis causa, may be onerous

or gratuitous.

An easement of right of way may be apparent but it is not a continuous

easement because its use is at intervals and depends upon the acts of

man. It can be exercised only if a man passes or puts his feet over

somebody else’s land.

Hence, a right of way is not acquirable by prescription. In his concurring

opinion in the case of Ronquillo v.Roco,Justice J.B.L. Reyes explained the

reason why right of way may not be acquired by virtue of prescription —

“The essence of this easement („servidumbre de paso‟) lies in

the power of the dominant owner to cross ortraverse the servient

tenement without being prevented or disturbed by its owner. As a

servitude, it is a limitation on the servient owner’s rights of ownership,

because it restricts his right to exclude others from his property. But

such limitation exists only when the dominant owner actually

crosses, or passes over the servient estate; because when he does

not, the servient owner’s right of exclusion is perfect and

undisturbed. Since the dominant owner cannot be continually and

uninterruptedly crossing the servientestate, but can do so only at

intervals, the easement is necessarily of an intermittent or

discontinuous nature.

Acquisition thru Prescription

If the easement is both continuous and apparent, it may be acquired by

virtue of prescription within a period of ten (10) years. The

commencement of the ten-year period of prescription will depend on

whether the easement is positive or negative, as follows:

(a) If the easement is positive, the 10-year period is counted from the

day on which the owner of the dominant estate, or the person who

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may have made use of the easement, commenced to exercise it

upon the servient estate;

(b) If the easement is negative, the 10-year period is counted from

the day on which the owner of the dominant estate forbade

(prohibited), by an instrument acknowledged before a notary

public, the owner of the servient estate, from executing an act

which would be lawful without the easement

The foregoing principles are best explained if we are going to consider the

acquisition of easement of light and view through prescription.

At the outset, it must be pointed out that a building may receive light in

various manners in the enjoyment of an easement of light, because the

openings through which the light penetrates may be made in one’s own

wall, in the wall of one’s neighbor, or in a party wall.

The legal doctrine applicable in either one of these cases is different,

owing to the fact that, although anyone may open windows in his own

wall, no one has a right to do so in the wall of another without the consent

of the owner, and it is also necessary, in accordance with Article 667 of

the New Civil Code, to obtain the consent of the other co-owner when the

opening is to be made in a party wall.

When a person opens windows in his own building he does nothing more

than exercise an act of ownership inherent in the right of property, which,

under Article 428 of the New Civil Code, empowers him to deal with his

property as he may see fit, with no limitations other than those established

by law.

By reason of the fact that such an act is performed wholly on a thing

which is wholly the property of the one opening the window, it does not in

itself establish any easement, because the property is used by its owner in

the exercise of dominion, and not as the exercise of an easement: “For a

man should not usethat which belongs to him as if it were a service only,

but as his ownproperty.”

Coexistent with this right is the right of the owner of the adjacent property

to cover up such windows by building on his own land or raising a wall

contiguously(closely) to the wall in which the windows are opened, by

virtue of the reciprocity of rights which should exist between

abutting(adjoining) owners, and which would cease to exist if one could

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do what he pleased on his property and the other could not do the same

on his.

Hence, it is that the use of the windows opened in a wall of one’s own

property, in the absence of some covenant or express agreement to the

contrary, is regarded as an act of mere tolerance on the part of the

owner of the abutting property, and does not create any right to maintain

the windows to the prejudice of the latter.

The mere toleration of such an act does not imply on the part of the

abutting owner a waiver of his right to freely build upon his land as high as

he may see fit, nor does it avail the owner of the windows for the effects

of possession, because it is a mere possession at will.

From the foregoing, it follows that the easement of light with respect to

the openings made in one’s own edifice does not consist precisely in the

fact of opening them or using them, inasmuch as they may be covered

up at any time by the owner of the abutting property, and, as Manresa

says in his commentaries on the Civil Code, “thereis no true easement as

long as the right to impede its use exists.”

The easement really consists of in prohibiting or restraining the adjacent

owner from doing anything which may tend to cut off or interrupts the

light; in short, it is limited to the obligation of not impeding the light (ne

luminibusofficiatur). The latter coincides in its effects, from this point of

view, with the obligation of refraining from increasing the height of a

building(altius non tollendi), which, although it constitutes a special

easement, has for its object, at times, the prevention of any interruption of

the light enjoyed by the adjacent owner.

These two easements necessarily go together because an easement of

light and view requires that the owner of the servient estate shall not build

to a height that will obstruct the window. They are, as it were, the two sides

of the same coin. While an easement of light and view is positive, that of

altius non tollendiis negative.

It will thus be observed that the owner of the servient estate subject to

such easement is under no obligation whatsoever to allow anything to be

done on his tenement, nor to do anything there himself, but is simply

restrained from doing anything thereon which may tend to cut off the

light from the dominant estate, which he would undoubtedly be entitled

to do were it not for the existence of the easement. If, then, the first

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condition is that which is peculiar to positive easements, and the second

condition that which is peculiar to negative easements.

Consequently, the easement of lights in the case of windows opened in

one’s own wall is of a negative character, and, as such, cannot be

acquired by prescription under Article 621 of the New Civil Code, except

by counting the time of possession from the date on which the owner of

the dominant estate may, by an instrument acknowledged before a

notary public, have prohibited the owner of the servient estate from doing

something which it would be lawful for him to do were it not for the

easement.

If the window, on the other hand, is opened in a party wall, and not in a

wall the sole and exclusive property of the owner of the dominant

tenement, the easement of lights is positive and the 10-year period of

prescription commences from the time of the opening of the window. The

reason for this is because no part owner can, without the consent of the

other, make in a party wall a window or opening of any kind, as provided

in Article 667 of the New Civil Code.

Hence, the very fact of making such openings in such a wall might,

therefore, be the basis for the acquisition of a prescriptive title without the

necessity of any active opposition, because it always presupposes the

express or implied consent of the other part owner of the wall, which

consent, in turn, implies the voluntary waiver of the right of such part

owner to oppose the making of such openings or windows in such a wall.

The same rule will apply if the window is opened on the wall belonging to

one’s neighbor. The 10-year prescriptive period commences from the

time of the opening of the window. Stated otherwise, if anyone shall open

a window in the wall of his neighbor, through which the light enters his

house, by this sole fact he shall acquire a prescriptive title to the

easement of light, if the time fixed by law (ten years) expires without

opposition on the part of the owner of the wall

Is the easement of light and view positive or negative? (BAR EXAM

QUESTION)

ANS.: It depends:

1) If made on one’s own wall and the wall does not extend over the

neighbor’s land, the easement is NEGATIVE (because he only does an act

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16

of ownership, and to create an easement, a prohibition isrequired. (Cortez v.

Yu Tibo, 2 Phil. 24; Art. 668).

2) If made on one’s own wall which extendsover the neighboring land

(invading its atmospheric area); or if made on a PARTY WALL, the

easement is created because of an act of SUFFERANCE or ALLOWANCE,

thus the easement is POSITIVE. (SeeCortez v. Yu Tibo, 2 Phil. 24, see also

Art. 668).].

Proof of Easement

The presumption is always against the existence of an easement for

“property is always presumed free from any and all encumbrances.”

Hence, the law requires that the easement must be acquired either

by a title or by prescription.

If the easement is acquired through prescription, necessarily there is

no document evidencing its existence and the same may only be

established in a judicial proceeding through preponderance of evidence.

If the easement, however, is one which cannot be acquired through

prescription and there is no document evidencing the same, or such

document is no longer available for whatever reason, the absence of

such proof may be cured by a deed of recognition by the owner of the

servient estate.

If the owner of the servient estate denies the existence of the

easement or refuses to execute the deed of recognition, the existence of

the easement may nonetheless be established in a judicial proceeding

through preponderance of evidence.

Note that the existence of a title which serves as the basis for the

easement may be proven through oral testimonies of witnesses as the

same is not covered by the Statute of Frauds. Even if the servitude is

imposed upon a parcel of land and the obligation arises from an oral

contract, such agreement is not covered by the Statute of Frauds

considering that “not all agreements affecting land must be put inwriting

to attain enforceability.”

Under paragraph 2(e) of Article 1403 of the New Civil Code, such formality

is required only of contractsinvolving leases for longer than one year, or for

the sale of real property or of an interest therein.

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Easement By Apparent Sign or Legal Presumption

An easement may be acquired in two ways:

(1) by title or

(2) by prescription.

Article 624 of the New Civil Code provides for acquisition of

easements by title through the operation of law.

This article contemplates of a situation where the two estates

belonged previously to only one person but due to alienation or partition,

the ownership of the two estates is divided. Prior, however, to the division

of ownership there exists between the two estates an apparent sign of

easement. In other words, an easement would have existed between the

two estates had the ownership of said estates resided in two different

persons.

In such a situation, an easement is created by way of title upon the

division of ownership of the two estates unless, at the time of the division of

ownership of the two estates, the contrary should be provided in the title

of conveyance of either of them or the apparent sign should be removed

before the execution of the deed

It should be noted that while Article 624 declares that the easement

is to “continue” the easement actually arises for the first time only upon

alienation of either estate, inasmuch as before that time there is no

easement to speak of, there being but one owner of both estates.

A praedial or real easement is one of the rights in another’s

property, or jura in re alienaand nobody can have an easement over his

own property, niminisua res servit.

Hence, the easement is not created till the division of the property.

At this point, the requisite that there must be two proprietors — one of the

dominant estate and another of the servient estate — is fulfilled.

For the acquisition of easement by title under Article 624 to apply, the

following requisites must concur:

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(1) That there exist an apparent sign of servitude between two

estates;

(2) That at the time of the establishment of such sign, the ownership

of the two estates resides in one person;

(3) That the sign of the easement be established by the owner of

both estates because the article will not apply when the easement is

established by a person different from the owner;

(4) That the ownership over the two estates is later on divided, either

by alienation or partition; and

(5) That at the time of division of ownership, nothing is stated in the

document of alienation or partition contrary to the easement nor is

the sign of the easement removed before the execution of the

document. It will thus be seen that under Article 624 the existence of

the apparent sign has for all legal purposes the same character and

effect as a title of acquisition of the easement

Article 624 also applies to a situation where the two estates were

previously under a state of co-ownership but prior to partition there exist

an apparent sign of easement in one of the estates.

For example, “A” and “B” used to be co-owners of a parcel of land.

“A,” during the existence of the co-ownership constructed a house on

one-half portion of the co-owned property. On the northeastern side of

the house, there are windows and doors which serve as passages for light

and view. Subsequently, “A” and “B” executed a deed of partition

whereby the portion where the house stands was allotted to “A” while the

other half was allotted to “B.”

The existence of the doors and windows on the northeastern side of the

aforementioned house, is equivalent to a title, for the visible and

permanent sign of an easement is the title that characterizes its existence.

If nothing has been stated in the deed of partition contrary to the

easement and “A” did not renounce the use of the windows and doors,

either by stipulation or by actually closing them permanently, the

easement is created by title pursuant to Article 624 upon the actual

partition of the co-owned property.

According to the Supreme Court in the case of Amor v. Tolentino, Article

624 also applies to a division of property by succession.

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Section 3. Rights and Obligations of the Owners of the Dominant and

Servient Estates

Art. 627. The owner of the dominant estate may make, at his own

expense, on the servient estate any works necessary for the use and

preservation of the servitude, but without altering it or rendering it

more burdensome.

For this purpose he shall notify the owner of the servient estate, and

shall choose the most convenient time and manner so as to cause

the least inconvenience to the owner of the servient estate. (543a)

Art. 628. Should there be several dominant estates, the owners of all

of them shall be obliged to contribute to the expenses referred to in

the preceding article, in proportion to the benefits which each may

derive from the work. Anyone who does not wish to contribute may

exempt himself by renouncing the easement for the benefit of the

others.

If the owner of the servient estate should make use of the easement

in any manner whatsoever, he shall also be obliged to contribute to

the expenses in the proportion stated, saving an agreement to the

contrary. (544)

Art. 629. The owner of the servient estate cannot impair, in any

manner whatsoever, the use of the servitude.

Nevertheless, if by reason of the place originally assigned, or of the

manner established for the use of the easement, the same should

become very inconvenient to the owner of the servient estate, or

should prevent him from making any important works, repairs or

improvements thereon, it may be changed at his expense, provided

he offers another place or manner equally convenient and in such a

way that no injury is caused thereby to the owner of the dominant

estate or to those who may have a right to the use of the easement.

(545)

Art. 630. The owner of the servient estate retains the ownership of the

portion on which the easement is established, and may use the

same in such a manner as not to affect the exercise of the

easement. (n)

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Rights and Obligations of the Owner of Dominant Estate

Effect of Easement Upon The Rights of Servient Owner

An easement consists in the limited use and enjoyment of the

property subjected to such encumbrance but without possession. In other

words, it gives the holder of the easement an incorporeal interest on the

property but grants no title thereto.

Hence, the owner of the servient estate retains the ownership of the

portion on which the easement is established, and may use the same in

such a manner as not to affect the exercise of the easement.

For example, if an easement of right of way is established, the owner of

the servient estate may do anything on his property as he pleases, in the

exercise of his right of enjoyment, but he may not enclose the property

because such act will affect the exercise of the easement. In this

example, the owner of the servient estate has an obligation not to

obstruct or hinder the free passage over the servient estate of any person

entitled to make use of it. As such, the holder of the easement may

demand for the removal of such obstruction.

While the owner of the servient estate is prohibited from impairing, in any

manner whatsoever, the use of the servitude, he may, however, change

the place of the easement or the manner of its use provided the following

requisites are satisfied:

(1) the place originally assigned or the manner established for the

use of the easement has become very inconvenient to the owner of

the servient estate or it has prevent him from makingany important

works, repairs or improvements thereon;

(2) Theservient owner offers another place or another manner of use

equally convenient;

(3) No injury is caused thereby to the owner of the dominant estate

or to those who may have a right to the use of the easement; and

(4) Theexpenses that will be incurred in the process shall be borne

by the owner of the servient estate.

Extent of Rights Granted to the Holder of Easement

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Upon the establishment of an easement, all the rights necessary for its use

are considered granted. Hence, the establishment of a principal

easement carries with it the grant of accessory ones.

For example, an easement for drawing waters carries with it the easement

of right of way. This is expressly recognized in Article 641 of the New Civil

Code, to wit:

Art. 641. Easements for drawing water and for watering

animals carry with them the obligation of the owners of the servient

estates to allow passage to persons and animals to the place where

such easements are to be used, and the indemnity shall include this

service. (556)”

As a consequence of the foregoing rule, the owner of the dominant

estate shall have the right to make any works on the servient estate if the

same be necessary for the use and preservation of the servitude. This right,

however, is subject to compliance with the following requirements:

(1) The work must be necessary for the use and preservation of the

servitude;

(2) The work is done at the expense of the owner of the dominant

estate;

(3) The work can be done without altering the servitude or rendering

it more burdensome;

(4) The owner of the servient estate is first notified of the intended

work; and

(5) The time and manner of making the work should be the most

convenient to the owner of the servient estate or it is done insuch a

manner that it causes the least inconvenience to theowner of the

servient estate

If there be several owners of the dominant estate, the expenses that will

be incurred in making the work shall be borne by all, in proportion to the

benefits which each may derive therefrom.

Anyone who does not wish to contribute may exempt himself by

renouncing the easement for the benefit of the others

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Limitations upon The Rights of Owner of Dominant Estate

While it may appear that the right of servitude (jus servitutes) is enjoyed by

the owner or occupant of the dominant estate, he does so only by reason

of such occupancy.

In other words, the right of servitude (jus servitutes) that is being enjoyed

by the owner or occupant of the dominant estate is inseparable from the

occupation of the tenement or estate. Hence, in the ultimate analysis, the

right of servitude (jus servitutes) resides in the estate (praedium) itself and

not in the physical person who successively occupies or enjoys it.

For this reason, the owner of the dominant estate cannot use the

easement (or the right of servitude) except for the benefit of the

immovable originally contemplated, for such right, to repeat, attaches to

the immovable itself and not to its owner. Neither may the owner of the

dominant estate exercise the easement in any other manner than that

previously established.

When the easement has been established in a general way, without any

specific purpose, it can be used for all the needs of the dominant estate,

and may be adopted to any new modification in the tenement itself.

However, when a particular purpose has been specified, the rule is that

the easement cannot be used for a different purpose except when the

change of use does not make the easement more burdensome, in which

case it may be allowed.

Section 4. Modes of Extinguishment of Easements

Art. 631. Easements are extinguished:

(1) By merger in the same person of the ownership of the dominant

and servient estates;

(2) By non-user for ten years; with respect to discontinuous

easements, this period shall be computed from the day on which

they ceased to be used; and, with respect to continuous easements,

from the day on which an act contrary to the same took place;

(3) When either or both of the estates fall into such condition that the

easement cannot be used; but it shall revive if the subsequent

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23

condition of the estates or either of them should again permit its use,

unless when the use becomes possible, sufficient time for

prescription has elapsed, in accordance with the provisions of the

preceding number;

(4) By the expiration of the term or the fulfillment of the condition, if

the easement is temporary or conditional;

(5) By the renunciation of the owner of the dominant estate;

(6) By the redemption agreed upon between the owners of the

dominant and servient estates. (546a)

Art. 632. The form or manner of using the easement may prescribe as

the easement itself, and in the same way. (547a)

Art. 633. If the dominant estate belongs to several persons in

common, the use of the easement by any one of them prevents

prescription with respect to the others. (548)

Extinguishment of Easements

An easement may be extinguished through any of the following modes:

(1) merger;

(2) non-user;

(3) impossibility of use;

(4) expiration of term;

(5) fulfillment of condition;

(6) renunciation; and

(7) redemption.

In addition to the foregoing causes enumerated in Article 631 of the

New Civil Code, the following may be added:

(1) annulment or rescission of title constituting the easement;

(2) termination of the right of the grantor; and

(3) abandonment of the servient estate; and

(4) eminent domain

Merger

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An easement is a right enjoyed by another’s property, or jure in re aliena.

Therefore, nobody can have an easement over his own property,

niminisua res servit, for a man should not use that which belongs to him as

if it were a service only, but as his own property.

For this reason, a real or praedialeasement requires the existence of two

distinct immovables belonging to different owners.

As a consequence, if there is a merger in the same person of the

ownership of the dominant and servient estates, the easement is

extinguished. For the same reason, a personal easement established for

the benefit of a particular person is also extinguished if the said holder of

the easement acquires ownership of the servient estate.

But if the personal easement is established for the benefit of a community,

the fact that one of the members of the community acquires ownership of

the servient estate will not result in agenuine merger that will terminate the

personal easement.

For a real or praedialeasement to be extinguished by way ofmerger, the

merger must involve full ownership of both the dominantand servient

estates.Thus, it has been held that when a person acquiresonly a part

interest in the servient estate it cannot be said that ownershipof the

dominant and servient estates has been merged in the sameperson.

It is not necessary, however, that the merger takes place to thefull extent

of the property, it being sufficient that the merger takes placewith regard

to that part affected by the servitude or that part for the benefit of which

the servitude was established.

Non-User

Non-user, as a mode of extinguishment of easement, presupposes that

the easement was used but later abandoned. For easement to be

extinguished under this mode, it is necessary that the non-user musthave

lasted for a period of ten (10) years.

The computation of the 10-year period of extinctive prescription shall

depend on whether the easement is continuous or discontinuous, as

follows:

(a) If the easement is discontinuous, the 10-year period is computed

from the day on which the easement was not used. Since the use of

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the easement depends upon the acts of man, if no such act has

been executed for a period of ten (10) years the easement is

extinguished.

(b) If the easement is continuous, in which case the use of

theeasement does not depend upon the acts of man, the 10-

yearperiod is counted from the day on which an act contrary tothe

easement took place.For example, if the owner of thelower estate

constructed a series of dikes to prevent the flowof excess waters

coming from the higher estates, the legal easement of drainage is

extinguished ten (10) years after the construction of the dikes

If the dominant estate is under a state of co-ownership, the use of the

easement by any of the co-owners will prevent the running of the 10-year

period of extinctive prescription by non-user. This must be the rule since

each co-owner of property which is held pro indiviso has the right to

exercise his rights over the whole property and may use and enjoy the

same with no other limitations other than that he shall not injure the

interests of his co-owners. In addition, since co-ownership is a form of trust,

the possession by a co-owner of the entire dominant estate is considered

for the benefit of all

Impossibility of Use

If there are circumstances which rendered impossible the use of the

easement, the same is merely suspended until subsequent conditions shall

again permit the use of the easement. In the following situations, however,

the easement is not merely suspended but extinguished:

(a) If the circumstances which cause the impossibility of use shall be

irreparable, in which case, the easement is absolutely extinguished.

(b) If the circumstances which cause the impossibility of use are

reparable, the easement is likewise extinguished if the period of

extinctive prescription by non-user has already lapsed.

In the latter case, the circumstance which renders the use of the

easement impossible must not be in the nature of a fortuitous event;

otherwise, the easement may not be extinguished by non-user, in which

case, the easement is merely suspended. According to Senator Tolentino,

the non-user must be due to voluntary abstention by the dominant owner,

and not to fortuitous event, because the basis of this cause of

extinguishment is presumptive renunciation.

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Renunciation

The renunciation of the easement by the owner of the dominant estate

must be specific, clear and express. Hence, a tacit (unspoken)

renunciation will not be sufficient.

Redemption

The redemption being referred to in paragraph 6 of Article 631 of the New

Civil Code is the release of the servient estate from the servitude upon

agreement of the owners of both estates and upon payment by the

owner of the servient estate of the corresponding consideration to the

owner of the dominant estate.

Chapter 2

LEGAL EASEMENTS

Section 1. General Provisions

Art. 634. Easements imposed by law have for their object either

public use or the interest of private persons. (549)

Art. 635. All matters concerning easements established for public or

communal use shall be governed by the special laws and

regulations relating thereto, and, in the absence thereof, by the

provisions of thisTitle. (550)

Art. 636. Easements established by law in the interest of private

persons or for private use shall be governed by the provisions of this

Title, without prejudice to the provisions of general or local laws and

ordinances for the general welfare.

These easements may be modified by agreement of the interested

parties, whenever the law does not prohibit it or no injury is suffered

by a third person. (551a)

Legal Easement, In General

The concept of legal easement and its classifications are discussed

previously in supra § 112.2. As therein discussed, the Civil Code provides

for the following classes of private legal easements:

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(a) Easement relating to waters (Arts. 637-648, NCC);

(b) Easement of right of way (Arts. 649-657, NCC);

(c) Easement of party wall (Arts. 658-666, NCC);

(d) Easement of light and view (Arts. 667-673, NCC);

(e) Easement of drainage of buildings (Arts. 674-676, NCC);

(f) Easement of distances (Arts. 677-681, NCC);

(g) Easement of nuisance (Arts. 682-683, NCC); and

(h) Easement of lateral and subjacent support. (Arts. 684-687, NCC)

Section 2. Easements Relating to Waters

Art. 637. Lower estates are obliged to receive the waters which

naturally and without the intervention of man descend from the

higher estates, as well as the stones or earth which they carry with

them.

The owner of the lower estate cannot construct works which will

impede this easement; neither can the owner of the higher estate

make works which will increase the burden. (552)

Art. 638. The banks of rivers and streams, even in case they are of

private ownership, are subject throughout their entire length and

within a zone of three meters along their margins, to the easement of

public use in the general interest of navigation, floatage, fishing and

salvage.

Estates adjoining the banks of navigable or floatable rivers are,

furthermore, subject to the easement of towpath for the exclusive

service of river navigation and floatage.

If it be necessary for such purpose to occupy lands of private

ownership, the proper indemnity shall first be paid. (553a)

Art. 639. Whenever for the diversion or taking of water from a river or

brook, or for the use of any other continuous or discontinuous

stream, it should be necessary to build a dam, and the person who is

to construct it is not the owner of the banks, or lands which must

support it, he may establish the easement of abutment of a dam,

after payment of the proper indemnity. (554)

Art. 640. Compulsory easements for drawing water or for watering

animals can be imposed only for reasons of public use in favor of a

town or village, after payment of the proper indemnity. (555)

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Art. 641. Easements for drawing water and for watering animals carry

with them the obligation of the owners of the servient estates to

allow passage to persons and animals to the place where such

easements are to be used, and the indemnity shall include this

service. (556)

Art. 642. Any person who may wish to use upon his own estate any

water of which he can dispose shall have the right to make it flow

through the intervening estates, with the obligation to indemnify their

owners, as well as the owners of the lower estates upon which the

waters may filter or descend. (557)

Art. 643. One desiring to make use of the right granted in the

preceding article is obliged:

(1) To prove that he can dispose of the water and that it is

sufficient for the use for which it is intended;

(2) To show that the proposed right of way is the most

convenient and the least onerous to third persons;

(3) To indemnify the owner of the servient estate in the manner

determined by the laws and regulations. (558)

Art. 644. The easement of aqueduct for private interest cannot be

imposed on buildings, courtyards, annexes, or outhouses, or on

orchards or gardens already existing. (559)

Art. 645. The easement of aqueduct does not prevent the owner of

the servient estate from closing or fencing it, or from building over

the aqueduct in such manner as not to cause the latter any

damage, or render necessary repairs and cleanings impossible.

(560)

Art. 646. For legal purposes, the easement of aqueduct shall be

considered as continuous and apparent, even though the flow of the

water may not be continuous, or its use depends upon the needs of

the dominant estate, or upon a schedule of alternate days or hours.

(561)

Art. 647. One who for the purpose of irrigating or improving his

estate, has to construct a stop lock or sluice gate in the bed of the

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29

stream from which the water is to be taken, may demand that the

owners of the banks permit its construction, after payment of

damages, including those caused by the new easement to such

owners and to the other irrigators. (562)

Art. 648. The establishment, extent, form and conditions of the

servitudes of waters, to which this section refers, shall be governed

by the special laws relating thereto insofar as no provision therefor is

made in this Code. (563a)

Easement Relating to Waters

The following are the easements relating to waters:

(1) Easement of drainage of waters (Art. 637, NCC; Art. 50,Water

Code)

(2) Easement for public use (Art. 638, NCC; Art. 51, Water Code);

(3) Easement for drawing waters (Arts. 640-641, NCC);

(4) Easement of abutment of dam (Art. 639, NCC);

(5) Easement of aqueduct (Arts. 642-646, NCC).

Easement of Drainage of Waters

An easement exists when, based on the physical condition of two estates,

waters descend naturally and without the intervention of man from a

higher estate (the dominant estate) to a lower estate (the servient estate).

This is called “easement of drainage of waters.”

In this kind of easement, the lower estate is obliged to receive the waters

which naturally and without the intervention of man flow from the higher

estates, as well as the stones or earth which they carry with them.

Such being the case, the owner of the lower estate may not construct

works, such as dikes, walls or hedges, which will block or impede the flow

of waters, unless he provides an alternative method of drainage. The

owner of the higher estate, in turn, may not construct works which will

increase the burden or increase the natural flow.

The owner of the higher estate shall also have the right to resort to artificial

means for the purpose of draining waters from higher to lower estates but

in the exercise of such right, he is obliged:

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(1) to select the routes and methods of drainage that will cause the

minimum damage to the lower lands; and

(2) to pay just compensation to the owner of the lower estate.

Since the enjoyment of this servitude does not depend upon acts of man

because the descent of water from the higher to the lower estates is due

to the force of gravity, this easement must be classed among the

continuous ones and it is subject to extinction by non-user for a period of

ten years computed from the day on which an act contrary to the

easement took place, such as building of dikes.

Easement of Public Use

The banks or rivers and streams and the shores of the seas and lakes

throughout their entire length and within a zone of three (3) meters in

urban areas, twenty (20) meters in agricultural areas and forty (40) meters

in forest areas, along their margins, are subject to the easement of public

use in the interest of recreation, navigation, floatage, fishing and salvage.

However, no person shall be allowed to stay in this zone longer than what

is necessary for recreation, navigation, floatage, fishing or salvage or to

build structures of any kind.

Note that in connection with this kind of easement, the provision of the

first paragraph of Article

638 of the New Civil Code was modified by Article 51 of the Water Code

of the Philippines (P.D. No. 1067).

Easement For Drawing Waters

The compulsory easement for drawing waters or for watering animals can

be imposed only for reasons of public use in favor of a town or village,

after payment of the proper indemnity. This kind of easement, upon its

establishment, carries with it the easement of right of way.

In other words, the owner of the servient estate shall also have the

obligation to allow passage to persons and animals to the place where

the easement is to be used. As such, the indemnity to be paid for the

easement for drawing waters or for watering animals must include

indemnity for the easement of right of way.

Easement of Abutment of Dam

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Whenever it is necessary to build a dam for the purpose of diverting or

taking waters from a river or brook, or for the use of any other continuous

or discontinuous stream, and the person who is to construct it is not the

owner of the banks or of the land on which must support it, he may

establish an easement of abutment of dam only upon payment of the

proper indemnity to the owner of the affected estates

Easement of Aqueduct

Requisites

If a person wishes to use upon his estate any water of which hecan

dispose, he shall have the right to make it flow through

interveningestates.This is called “easement of aqueduct.” In order for

thiseasement to be established, the following requisites must concur:

(1) That he who wants to establish the easement of aqueductmust

be able to prove that he can dispose of the water;

(2) He must also prove that it is sufficient for the use for whichit is

intended;

(3) The proposed right of way is the most convenient and the least

onerous to third persons affected; and

(4) He must indemnify the owners of the servient estates (intervening

estates), as well as the owners of the lowerestates upon which the

waters may filter or descend

Article 47 of the Water Code of the Philippines likewise provides that

“when the use, conveyance or storage of water results in damage to

another, the person responsible for the damage shall pay compensation.”

This kind of easement, if established for private interest, may not be

imposed on buildings, courtyards, annexes, or outhouse, or on orchards or

gardens already existing

Right of Owners of Servient Estate

The existence of an easement of aqueduct does not, however, curtail the

right of the owner of the servient estate to close or fence his estate but he

may not refuse the entry of the holder of the easement on his estate if the

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purpose of such entry is the cleaning, repair or replacement of the

aqueduct or removal of any obstruction therefrom.

The existence of such easement does not likewise prevent the owner of

the servient estate from building over this aqueduct provided that the

same does not cause damage to the aqueduct or render the necessary

repairs and cleanings thereon impossible.

Nature of Easement

For legal purposes, the easement of aqueduct shall be considered as

continuous and apparent, even though the flow of the water may not be

continuous, or its use depends upon the needs of the dominant estate, or

upon a schedule of alternate days or hours. Hence, an easement of

aqueduct may be acquired either by title or by prescription

Section 3. Easement of Right of Way

Art. 649. The owner, or any person who by virtue of a real right may

cultivate or use any immovable, which is surrounded by other

immovable 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.

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.

In case the right of way is limited to the necessary passage for the

cultivation of the estate surrounded by others and for the gathering

of its crops through the servient estate without a permanent way, the

indemnity shall consist in the payment of the damage caused by

such encumbrance.

This easement is not compulsory if the isolation of the immovable is

due to the proprietor’s own acts. (564a)

Art. 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. (565)

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Art. 651. The width of the easement of right of way shall be that

which is sufficient for the needs of the dominant estate, and may

accordingly be changed from time to time. (566a)

Art. 652. Whenever a piece of land acquired by sale, exchange or

partition, is surrounded by other estates of the vendor, exchanger, or

co-owner, he shall be obliged to grant a right of way without

indemnity.

In case of a simple donation, the donor shall be indemnified by the

donee for the establishment of the right of way. (567a)

Art. 653. In the case of the preceding article, if it is the land of the

grantor that becomes isolated, he may demand a right of way after

paying an indemnity. However, the donor shall not be liable for

indemnity. (n)

Art. 654. If the right of way is permanent, the necessary repairs shall

be made by the owner of the dominant estate. A proportionate

share of the taxes shall be reimbursed by said owner to the

proprietor of the servient estate. (n)

Art. 655. 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.

Whenever it is necessary to establish a compulsory easement of the

right of way or for a watering place for animals, the provisions of this

Section and those of Articles 640 and 641 shall be observed. In this

casethe width shall not exceed 10 meters. (570a)

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Easement of Right of Way

Concept

Servitudes of right of way are an ancient concept, which date back to

the iter, actus, and via of the Romans. They are demanded by necessity,

that is, to enable owners of isolated estates to make full use oftheir

properties, which lack of access to public roads has denied them.

The essence of this easement (“servidumbre de paso”) lies in the power of

the dominant owner to cross or traverse the servient tenement without

being prevented or disturbed by its owner. As a servitude, it is a limitation

on the servient owner’s rights of ownership, because it restricts his right to

exclude others from his property. But such limitation exists only when the

dominant owner actually crosses, or passes over the servient estate;

because when he does not, the servient owner’s right of exclusion is

perfect and undisturbed. Since the dominant owner cannot be

continually and uninterruptedly crossing the servient estate, but can do so

only at intervals, the easement is necessarily of an intermittent or

discontinuous nature.

Because possession of a right consists in the enjoyment of that right and to

enjoy a right is to exercise it, it follows that the possession (enjoyment or

exercise) of a right of way is intermittent and discontinuous.

From this premise, it is inevitable to conclude, with Manresa and Sanchez

Roman, that such easement cannot be acquired by acquisitive

prescription (adverse possession) because the latter requires that the

possession be continuous or uninterrupted

Manner of Acquisition; Requisites of Compulsory Right of Way

An easement of right of way may only be acquired by virtue of a title,

either voluntarily (Arts. 688-693) or compulsorily (Arts. 649-657). A voluntary

easement of right of way is constituted by covenant (contract) and does

not, therefore, require that thedominant estate be isolated and without

an adequate outlet to a public highway.

If an estate, however, is so isolated and without an adequate outlet to a

public highway, the grant of easement of right of way is compulsory and

hence, legally demandable, subject to indemnity and the concurrence of

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other conditions enumerated under Articles 649 and 650 of the New Civil

Code.

In Bacolod-Murcia Milling Co., Inc. v. Capital Subdivision, Inc.,127 the

Supreme Court held that a compulsory easement of right of way cannot

be obtained without the presence of four (4) requisites provided for in

Articles 649 and 650 of the Civil Code, which the owner of the dominant

tenement must establish, to wit:

(1) That the dominant estate is surrounded by other immovable and

has no adequate outlet to a public highway (Art. 649, par. 1);

(2) After payment of proper indemnity (Art. 649, par. 1, end);

(3) That the isolation was not due to acts of the proprietor of the

dominant estate (Art. 649, par. 4); and

(4) That 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 from the dominant estate to a public highway may be the

shortest. (Art. 650)

By its very nature, and when considered with reference to the obligations

imposed on the servient estate, an easement involves an abnormal

restriction on the property rights of the servient owner and is regarded as

a charge or encumbrance on the servient estate. Thus, it is incumbent

upon the owner of the dominant estate to establish by clear and

convincing evidence the presence of all the preconditions before his

claim for easement of right of way be granted. Stated otherwise, the

burden of proving the existence of the prerequisites to validly claim a

compulsory right of way lies on the owner of the dominant estate.

Isolation of the Dominant Estate

In order to entitle the owner of the dominant estate to demand for a

compulsory right of way, it is required that his estate must be “surrounded

by other immovables pertaining to other persons.”

The estate, however, need not be totally landlocked as the isolationof the

dominant estate is also dependent on the particular need of

thedominant owner. What is important to consider is whether or not a right

of way is necessary to fill a reasonable need therefor by the owner.132

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Thus, as Manresa had pointed out, if the passageway consists of

an“inaccessible slope or precipice,” it is as if there is no passageway, that

is, one that can sufficiently fulfill the dominant owner’s

necessities,although by the existence of that passageway the property

cannot betruly said that the property is isolated.

So also, while an existing rightof way may have proved adequate at the

start, the dominant owner’sneed may have changed since then, for

which Article 651 of the Codeallows adjustments as to width.

But the law makes it amply clear that an owner cannot, by his own act,

isolate his property from a public highway and then claim an easement of

way through an adjacent estate. In short, the claimant of a right of way

must not himself procured the isolation of his property.

According to the last paragraph of Article 649, the “easement is not

compulsory if the isolation of the immovable is due to the proprietor‟s own

acts.” Thus, when the claimant of a right of way had already

beengranted an adequate access to the public highway through

another estatebut the same was no longer in use because he himself had

closed it offby erecting a stonewall on his lot at the point where such

passagewaybegan, he cannot demand for a compulsory right of way in

an alternativelocation.

Inadequacy of the Outlet to Public Highway

To be entitled to a compulsory right of way, it is necessary that the estate

of the claimant of a right of way must be isolated and without adequate

outlet to a public highway.The true standard for the grant of the legal

right is “adequacy.” Hence, when there is already an existing adequate

outlet from the dominant estate to a public highway, even if the said

outlet, for one reason or another, be inconvenient, the need toopen up

another servitude is entirely unjustified

Of course, the question of when a particular passage may be said to be

“adequate” depends on the circumstances of each case. Manresa,

however, says: “In truth, not only the estate which absolutely does not

possess it should be considered in this condition, but also that which does

not have one sufficiently safe or serviceable; an estate bordering a public

road through an inaccessible slope or precipice, is in fact isolated for all

the effects of the easement requested by its owner.

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On the other hand, an estate which for any reason has necessarily lost its

access to a public road during certain periods of the year is in the same

condition… There are some who propound the query as to whether the

fact that a river flows between the estate and the public road should be

considered as having the effect of isolating the estate... If the river may

be crossed conveniently at all times without the least danger, it cannot be

said that the estate is isolated; in any other case, the answer is in the

affirmative.

In order to justify the imposition of the servitude of right of way, there must

be a real, not a fictitious or artificial necessity for it. Mere convenience for

the dominant estate is not what is required by law as the basis for setting

up a compulsory easement. Even in the face of a necessity, if it can be

satisfied without imposing the servitude, the same should not be imposed.

This easement can also be established for the benefit of a tenement with

an inadequate outlet, but not when the outlet is merely inconvenient.

Thus, when a person has already established an easement of this nature in

favor of his tenement, he cannot demand another, even if the first

passage has defects which make passage impossible, if those defects

can be eliminated by proper repairs