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 “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.
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
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
“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.
2
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.
3
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.
4
(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.
5
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);
6
(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.
7
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
8
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)
9
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.
10
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
11
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.
12
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
13
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
14
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
15
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
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.
17
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:
18
(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.
19
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)
20
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
21
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
22
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
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
24
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
25
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.
26
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:
27
(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)
28
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
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:
30
(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
31
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
32
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)
33
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)
34
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
35
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
36
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.
37
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