Easement or Servitude

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 servient estate. (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.

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.

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.

(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.

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.

The“benefit 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.

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);

(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.

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.

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 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.

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.

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 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.

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 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 to the wall in

which the windows are opened, by virtue of the reciprocity of rights which should exist

between abutting owners, and which would cease to exist if one could 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

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

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.

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:

(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,71 Article 624 also

applies to a division of property by succession.

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)

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 making any 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) the expenses 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

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

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.82

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 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

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 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.

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:

(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)

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 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:

(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

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 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)

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)

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 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 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

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.

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