EASEMENT OR SERVITUDE

Easement
An encumbrance imposed upon an immovable for the benefit of another
immovable belonging to a different owner.

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.

While Article 613 speaks of a real easement, Article 614 speaks of a

personal easement. Both however are real rights, but will prejudice third
persons only if duly registered.

Characteristics:
1. It is a real right but will affect third persons only when duly registered;
2. It is enjoyed over another immovable, never on one’s own property;
3. It involves two neighboring estates (in case of real easements) – the
dominant and the servient estate (CIVIL CODE, Art. 613);
4. It is inseparable from the estate to which it is attached, and, therefore
cannot be alienated independently of the estate (CIVIL CODE, Art. 617);
5. It is indivisible for it is not affected by the division of the estate between
two or more persons. The mere fact that the property was subdivided does
not extinguish the easement (CIVIL CODE, Art. 618);
6. It is a right limited by the needs of the dominant owner or estate, without
possession;
7. It cannot insist in the doing of an act unless the act is accessory in relation
to a real easement; and
8. It is a limitation on the servient owner’s rights of ownership for the benefit
of the dominant owner; and therefore, it is not presumed.

Note: It is an abnormal restriction on the property rights of the servient

owner. Thus, it is incumbent upon the dominant estate owner to establish the
presence of all the preconditions for easement

Classification
1. As to recipient of Benefit:
a. Real/ Predial- imposed upon an immovable for the benefit of another
immovable belonging to a different owner
b. Personal- established for the benefit of a community, or of one or more
persons to whom the encumbered estate does not belong

Note: Thus, in this type of servitude, there is no “owner of a dominant

tenement” to speak of, and the easement pertains to persons without a
dominant estate, in this case, the public at large.
2. As to its Source:
a. Voluntary- when the easement is established by the will or agreement
of the parties or by a testator

Note: Voluntary easements must be recorded in the Registry of

Property to
prejudice 3rd persons

b. Legal- when it is imposed by law either for public use or in the interest
of private persons
c. Mixed- when it is created partly by will or agreement and partly by law

3. As to its Exercise:
a. Continuous Easements- those the use of which are or may be,
incessant without the intervention of any act of man

Note: For an easement to be considered “continuous,” its use does not

have to be incessant; it is enough that the use may be incessant.

b. Discontinuous Easements- those which are used at intervals and

depend upon the acts of man

Note: The easement itself exists continuously but its exercise may be
continuous or discontinuous or there may be no exercise at all.

For legal purposes, the easement of aqueduct is considered

continuous, even though the flow of 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

When the court says that an easement exists, it is not creating one
(hence, there are no judicial easements); it merely declares the
existence of an easement created by law or by the parties or testator

4. As to the Indication of their Existence:

a. Apparent Easements- those which are made known and are continually
kept in view by external signs that reveal the use and enjoyment of the
same

Note: The mark or sign need not be seen but should be susceptible of
being seen.
b. Non-apparent Easements- those which show no external indication of
their existence

5. As to Duty of Servient Owner:

a. Positive- one which imposes upon the owner of the servient estate the
obligation of allowing something to be done or of doing it himself
b. Negative- one which prohibits the owner of the servient estate from
doing something which he could lawfully do if the easement does not
exist

6. As to the Right Given

a. Right to partially use the servient estate;
 b. Right to get specific materials or objects from the servient estate;
c. Right to participate in ownership;
d. Right to impede or prevent the neighboring estate from performing a
specific act of ownership.

Easement Lease Easement Usufruct

Modes of Acquisition: (PDAF-T)

1. By Prescription of 10 years irrespective of the good or bad faith of the
possessor and whether or not he has just title. The only requirement is
adverse possession.
Note: Only continuous and apparent easements can be acquired by
prescription)
a. Positive Servitude- counted from the day their exercise commences
b. Negative Servitude- counted from the formal prohibition to the servient
owner to do any act opposed to the servitude
There must be a notarized document executed by anyone who
desires to establish the easement. Thus, there is no easement for as
long as the dominant owner does not exercise his right to prohibit.

2. By Deed of recognition
The absence of document or proof showing 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 final judgment

Easement exists even if acquired by oral contract or by virtue of some

document that has been lost.

3. By Apparent sign established by the owner of two adjoining estates,

unless at the time the ownership of the two estates is divided:
a. There are contrary stipulations; or
b. The sign is removed before the execution of the deed

4. By Final judgment

Note: If the owner of the servient estate refuses to execute the deed of
recognition, the court may, in its judgment, declare the existence of the
easement.

5. By Title

Note: The following easements may be acquired only by title:

 a. Continuous non-apparent estimates;
b. Discontinuous apparent estimates; and
c. Discontinuous non-apparent estimates.

Dominant Owner
The owner of the immovable in favor of which the easement is established

Rights of a Dominant Owner: (MARE)

1. To Make on the servient estate all the works necessary for the use and
preservation of the servitude, provided:
a. This must be at his own expense;
b. He must notify the servient owner;
c. Select convenient time and manner; and
d. He must not alter the easement nor render it more burdensome;
2. To Ask for mandatory injunction to prevent impairment of his use of the
easement;
3. To Renounce totally the easement if he desires to exempt himself from
contribution to necessary expenses;
4. To Exercise all the rights necessary for the use of the easement.
Note: If there be several owners of dominant estate, expenses that will be
incurred in making the work shall be borne in by all in proportion to the
benefits which each may derive therefrom.

Obligations of a Dominant Owner: (ABOUNCE)

1. He cannot Alter the easement or render it more burdensome (CIVIL CODE,
ART. 627);
2. He cannot use the easement except for the Benefit of the immovable
originally contemplated (CIVIL CODE, Art. 626);
3. He cannot exercise the easement in any Other manner than that
previously established (CIVIL CODE, Art. 626);
4. He may make any works or construct anything which is necessary for the
Use and preservation of the servitude (CIVIL CODE, Art. 627, par.1)
5. He shall Notify the servient owner of works necessary for the use and
preservation of the servitude (CIVIL CODE, Art. 627, par.2);
6. He must Choose the most convenient time and manner in making the
necessary works as to cause the least inconvenience to the servient owner
(CIVIL CODE, Art. 627, par.2); and
7. He must contribute to the necessary Expenses if there are several
dominant estates (CIVIL CODE, Art. 628, par.1).

Note: He may only exercise rights necessary for use of easement. An

owner may exempt himself from contributing by renouncing the easement
in favor of the others.

Servient Owner
The owner of the immovable whose property is subject to easement for the
benefit of the dominant owner

Rights of a Servient Owner: (MaRC)

 1. To Make use of the easement (CIVIL CODE, Art. 628, par.2), unless there is
agreement to the contrary;
2. To Retain ownership and possession of the portion of the estate on which
the easement is established; and
3. To Change the place or manner of the easement, provided it be equally
convenient
Requisites: (VANE)
a. The place or manner has become Very inconvenient to the servient
owner or prevents him from making important works thereon;
b. He offers Another place or manner equally convenient;
c. No injury is caused by the change to the dominant owner or to
whoever may have right to the use of the easement;
d. The Expenses that will be incurred in the process shall be borne by the
owner of the servient estate

Obligations of a Servient Owner: (ICoRP)

1. He cannot Impair the use of the easement;
2. Contribute to the necessary expenses in case he uses the easement,
unless there is an agreement to the contrary;
3. In case of impairment, to Restore conditions to the status quo at his
expense, plus damages; and
4. To Pay for the expenses incurred for the change of location.

Extinguishment of Easements: (REMAIN-BREW)

1. Redemption agreed upon between the owners of the dominant and
servient estates;
2. Expiration of the term or fulfillment of the resolutory condition;
3. Merger of the ownership of the dominant and servient estates;
A Merger exists when ownership of the dominant and servient estates is
consolidated in the same person. Merger then, as can be seen, requires
full ownership of both estates. The merger must be absolute, complete,
and not temporary. (If it is temporary, there is only suspension of
easement).
4. Annulment of the title to the servitude;
5. Permanent Impossibility to use the easement;
Mere impossibility to use the easement merely suspends the same. To be
permanent, the causes of the impossibility of the use must be irreparable.
If they are reparable, the easement may still be extinguished if the 10-
year period by non-use has already lapsed.
6. Non-use for 10 years;

Reckoning Period:
a. Discontinuous easement- counted from the day the easement ceased
to be used (CIVIL CODE, Art. 631, par. 2);
b. Continuous easement- counted from the day an act adverse to the
exercise of easement took place (CIVIL CODE, Art. 631, par. 2);

Note: This mode is applicable only to easements that have been in use
and later abandoned, for one cannot discontinue using what one has never
used.
The proof of non-use must be indubitable and this is particularly true if the
easement of right of way was annotated in the Torrens Title.
 The non-use must be due to the dominant owner’s voluntary abstention
and not to fortuitous event; otherwise, there is only suspension of
easement.

The running of the 10-year period will be prevented by the use of the
easement of any of the co-owners of the dominant estate

7. Bad condition- when either or both estates fall into such a condition that
the easement could not be used;
Note: This merely suspends since possibility of use revives the
easement. Resolution of the right to create the servitude;
8. Expropriation of the servient estate; and
9. Waiver or renunciation by the dominant owner.

Note: Waiver or renunciation must be express, clear, and specific. The

mere fact that it has not been used at all cannot give rise to the
conclusion that there has been a waiver.

The sale of the dominant estate does not extinguish the easement. There
must be a statement abolishing or extinguishing it. Hence, the use of the
servient estate is continued by operation of law.

Other Causes for Extinguishment of Easement:

1. Registration of the servient estate as free, i.e., although the servient
estate was registered under the Torrens system, the easement thereon
was not registered, unless there is a stipulation or actual knowledge of the
existence of easement on the part of the transferee.
2. In the case of the legal easement of right of way, the opening of an
adequate outlet to the highway extinguishes the easement, if the servient
owner makes a demand for such extinguishment.

Legal Easements
Easements imposed by law have for their object either public use or the interest
of private persons

Kinds of Legal Easements:

1. Public legal easements- those for public or communal use and governed
primarily by special laws and by the Civil Code.
2. Private legal easements- those for the interest of private persons or for
private use and governed:
a. Primarily by the agreement of the interested parties;
b. In the absence thereof, by the provisions of general or local laws and
ordinances; and
c. In default of (a) and (b), by Articles 634-687 of the Civil Code

Classes of Private Legal Easements: (WaR-PaL-D2iNS)

1. Easement relating to Waters: (DARAD)
a. Easement of Drainage of waters;
b. Easement of Abutment of Dam;
c. Easement on Riparian property;
d. Easement of Aqueduct;
e. Easement for Drawing water.
2. Easement of Right of way;
 3. Easement of Party wall;
4. Easement of Light and view;
5. Easement of Drainage of Buildings;
6. Easement of Distances;
7. Easement of Nuisance;
8. Easement of lateral and subjacent Support.

I. Easement Relating to Waters

A. Easement of Drainage of Waters

Note: Art. 637 of the Civil Code has already been superseded by Article
50 of the Water Code.

Lower estates (servient estates) are obliged to receive the waters which
naturally and without the intervention of man flow from the higher estate
(dominant estate), as well as the stone or earth which they carry with
them.

Limitations:
a. The owner of the lower estate cannot construct works which will
impede this natural flow, unless he provides an alternative method of
drainage;
b. Neither can the owner of the higher estate make works which will
increase this natural flow.

Right of Higher Estate to Drain Water

The owner of the higher estate has the right to resort to artificial means
for the purpose of draining water from higher to lower estates.
Requisites: (SePa)
1. He must Select the routes and methods that will cause the minimum
damage to the lower lands; and
2. Payment of just compensation is made

Note: Water right, such as the right to use a drainage ditch for irrigation
purposes, which are appurtenant to a parcel of land, pass with conveyance
of the land, although not specifically mentioned in the conveyance

B. Easement on Riparian property

Note: Art. 638, par.1 of the Civil Code has been modified by Art. 51 of the
Water Code. It states that the banks of 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 recreation, navigation, floatage,
fishing, and salvage.

Limitation: 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
C. Easement of Abutment or Buttress of a Dam
A person may establish this easement, provided that (PIN2):
1. The Purpose is to divert or take water from a river or brook, or to use
any other continuous or discontinuous stream;
2. Payment of the property Indemnity is made;
3. It is Necessary to build a dam;
4. The person to construct it is Not the owner of the banks or lots which
must support it.
Note: He must seek the permission of the owner, and in case of the
latter’s refusal, he must secure authority from the proper
administrative agency.

If the construction of the dam is unauthorized, it can be considered a

private nuisance; thus, it can be lawfully removed.

D. Easement for Drawing Water and Watering Animals

Requisites: (WIFIS)
1. The right of Way should have a maximum width of 10 meters;
2. Must be Imposed for reasons of public use;
3. Must be in Favor of a town or village;
4. Indemnity must be paid; and
5. Must be Sought not by one individual, but by the town or village, thru
its legal representation.

E. Easement of Aqueduct
Right arising from a forced easement, by virtue of which the owner of an
estate who desires to avail himself of water for the use of said estate may
make such waters pass through the intermediate estate with the
obligation of indemnifying the owner of the same and also the owner of
the estate to which the water may filter or flow.
Requisites: (SIC2)
1. He must prove that the water is Sufficient for the intended use;
2. Indemnity must be paid;
3. Dominant owner must prove that he has the Capacity to dispose of the
water; and
4. The course is most Convenient, and least onerous to the third person.

Limitation: The easement of aqueduct for private interest cannot be

imposed on buildings, courtyards, annexes, or outhouses, or on orchards,
or gardens already existing

Note: Notwithstanding the easement of aqueduct, the servient owner may

close or fence his estate, or build over the aqueduct so long as no damage
is caused to the aqueduct or the necessary repairs and cleanings of the
same are not rendered impossible

For legal purposes, easement of aqueduct is apparent and continuous,

and thus, susceptible of acquisitive prescription

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

another, the person responsible for the damage shall pay compensation
 F. Easement for the Construction of a Stop Lock or Sluice Gate (CIVIL
CODE, Art. 647)

Purpose: To take water for irrigation, or to improve an estate

Requisites: (TIDEs)
1. Third persons should not be prejudiced;
2. Purpose must be for Irrigation or improvement;
3. Damages must be paid; and
4. The construction must be on the Estate of another

II. Easement of Right of Way

Modes of Acquisition:
1. By a voluntary title (voluntary easement)- it is constituted by
covenant and does not require that the dominant estate be isolated
and without an adequate outlet to a public highway (CIVIL CODE, Arts.
688-693)
2. By a compulsory title (compulsory easement)- if an estate is so
isolated and without and adequate outlet to a public highway, the
grant thereof is legally demandable (CIVIL CODE, Arts. 649-657).

Who may Demand Compulsory Right of Way: (ORU)

1. Owner of the dominant estate;
2. Persons with Real right to use the dominant estate; and
3. Usufructuary

Note: A mere lessee is not entitled to demand a right of way, his

action is against the lessor.

Requisites of Compulsory Right of Way: (CD-RIPE)

1. Claimant must be the owner of the enclosed immovable or one with
real right;
2. The Dominant estate is surrounded by other immovables and there
must be no adequate outlet to a public highway;
3. Right of way must be absolutely necessary;
4. Isolation must not be due to the claimant’s own act;
5. Payment of proper indemnity;
6. Easement must 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 the public highway may be
the shortest.

General Rule: The least prejudice criterion and the shortest distance
criterion must concur (Calimoso v. Roullo, G.R. No. 198594, January 25,
2016).

Exception: If the two criteria do not concur, the criterion of least

prejudice to the servient estate must prevail over the criterion of the
shortest distance. (Quimen v. CA, G.R. No. 112331, May 29, 1996).

Note: The easement of right of way cannot be acquired by

prescription, because it is discontinuous or intermittent (Ronquillo v.
Roco, G.R. No. L-10619, February 28, 1958).
The true standard for the grant of the legal right of easement of right
of way is adequacy. If there is already an existing outlet from the
dominant estate to a public highway, even if inconvenient, the need to
open another is unjustified. (Costabella Corp. v. CA, GR No. 80511,
January 25, 1991).

Where the Buyer’s Land is Enclosed

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. (CIVIL CODE
Art. 652).
Note: In case of simple donation, the donor shall be indemnified by the
donee for the establishment of the right of way.

Where the Seller’s Land is Enclosed

If it is the land of the grantor (seller, barterer or co-owner) that
becomes isolated, he may demand a right of way after paying an
indemnity. (CIVIL CODE Art. 653).
Note: However, the donor shall not be liable for indemnity.

Rules if Grantor’s or Grantee’s Land is Enclosed

1. If the enclosing estate is that of the grantor (seller, bartender, or co-
owner but not donor), the grantee does not pay indemnity for the
easement.
2. If the enclosed estate is that of the grantor, the grantor must pay
indemnity.

Width of the Easement

The width of the easement of right of way may be modified from time
to time depending upon the reasonable needs of the dominant estate.

Rules if the Right of Way is Permanent

The path belongs to the servient estate, and he pays all the taxes
However, the Dominant estate:
1. Should pay for necessary repairs; and
2. Should pay the proportionate share of the taxes paid by the
servient estate.

Temporary Easement of Right of Way

Requisites: (In-C2R-In)
1. The easement must be Indispensable:
a. For the Construction, repair, improvement, alteration or
beautification of a building;
b. To Carry materials through the estate of another; or
c. To Raise thereon scaffolding or other objects necessary for the
work
2. Payment of proper Indemnity to owner of the estate for the damage
caused

Easement of Right of Way for the passage of Livestock

Maximum Width:
 1. Animal Path- 75 meters
2. Animal trail- 37 meters and 50 centimeters
3. Cattle- 10 meters
Note: If the easement established is compulsory, the width shall not
exceed 10 meters

Requisites for the Extinguishment of the Easement of a Right

of Way:
1. The new outlet is adequate in both cases:
a. Joining the dominant estate to another with exit on a public road;
b. The opening of a public road
Note: The opening extinguishes only compulsory easements, not
voluntary easements that are extinguished only by mutual
agreement or renunciation by the dominant owner

2. The servient owner must demand for release of his estate coupled
with return of indemnity received without interest

Note: The easement of the right of way is discontinuous because it is

exercised only if a person passes or sets foot on somebody else’s land.
The presence of more or less permanent railroad tracks does not
change this. It is not the presence of apparent signs or physical
indications showing the existence of an easement, but rather the
manner of exercise thereof, that categorizes such into continuous or
discontinuous.

II. Easement of Party Wall

Refers to all the mass of rights and obligations emanating from the existence
and common enjoyment of wall, fence, enclosure, or hedges by the owners of
adjacent buildings and estates separated by such objects

Party Wall
Common Wall which separates 2 estates built by a common agreement at the
dividing line such that it occupies a portion of both estates on equal parts

Note: Although called a legal easement, it is a compulsory kind of co-ownership

or forged indivision where the shares of each owner cannot be separated
physically. Thus, each co-owner owns the half nearest to him.

Presumptions of Existence
1. In dividing walls of adjoining buildings, up to point of common elevation;
2. In dividing walls of gardens and yards situated in cities, towns, or in rural
communities;
3. In dividing fences, walls and live hedges rural lands;
4. In ditches or drains between two estates;

Rebuttal of Presumption:
1. By title;
2. By proof to the contrary;
3. By exterior signs to the contrary.
Exterior signs Rebutting the Existence of a Party Wall:
It is understood that there is an exterior sign, contrary to the easemnet of a
party wall;
1. Whenever in the dividing wall of buildings there is a window or opening;
2. Whenever the dividing wall is, on one side, straight and plumb on all its
facement, and on the other, it has similar conditions on the upper part, but
the lower part slants projects outward;
3. Whenever the entire wall is built within the boundaries of one of the
estates;
4. Whenever the dividing wall bears the burden of the binding beams, floor
and roof frame of one of the buildings, but not those of the others;
5. Whenever the dividing wall between courtyard, garden and tenements is
constructed in such a way that the coping sheds the water upon only one
of the estates;
6. Whenever the dividing wall, being built of masonry, has stepping stones,
which at certain intervals project from the surface on one side only, but
not on the other;
7. Whenever lands enclosed by fences or live hedges adjoin others that are
not enclosed.
8. Whenever the earth or dirt removed to open the ditch or to clean it is only
on one side thereof. The ownership of the ditch shall belong to the owner
of the land having this exterior sign in his favor.

Right of Part-owners: (UID)

1. To make Use of the wall in proportion to their respective interests;
2. To Increase the height of the wall
He must:
a. Do so at his expense;
b. Pay for any damage which may be caused by the work, even though
such damage may be temporary; and
c. To acquire half interest inh any increase of thickness or height, paying
a proportionate share in the cost of work and of the land covered by
the increase; and
3. To Demolish the building being supported by a party wall provided the
cost of all repairs and work necessary to prevent any damage which the
demolition may cause to the party wall shall be borne by him.

Obligations of Part-owners:
1. To contribute proportionately to the repair and maintenance unless he
renounces his part-ownership
2. If one part-owner raises the height of the wall, he must: (MECA)
a. Bear the cost of Maintenance of the additions;
b. Bear the increased Expenses of preservation;
c. Bear the Cost of construction; and
d. Give Additional land, if necessary, to thicken the wall.

III. Easement of Light and View

Easement of Light
The right to admit light from the neighboring estate by virtue of the opening of a
window or the making of certain openings
Easement of View
The right to make openings or windows, to enjoy the view throught the estate of
another and the power to which would obstruct such view or make the same
difficult. It necessarily includes the easement of light.

10-year Period of Prescription for Acquisition of Easement of Light and

View:
1. Where the easement is positive (if made through a party wall),
prescription is counted fronm the time of the opening of the window .
2. Where the easement is negative (if made through a wall on the dominant
estate), prescription is counted from the time of the formal prohibition
upon the adjoining owner.

IV. Drainage of Buildings

a. Easement of drainage of buildings- the right to divert or empty the rain
waters from one’s own roof or shed to the neighbor’s estate either drop by
drop or through conduits
b. Easement to receive falling rain waters- deals not with legal easement but
with a voluntary easement to receive rain water falling from the roof of an
adjoining building
c. Easement giving outlet to rain water where house surrounded by other
houses

Requisites: (DINE)
1. Least possible Damage caused;
2. There must be payment of proper Indemnity;
3. There must be No adequate outlet to the rain water because the yard or
court of a house is surrounded by other houses;
4. The outlet to the water must be at the point where Egress is easiest and
establishing a conduit for drainage

Ownerhip of Rain Waters:

Rain waters falling on private lands shall belong to the State. However, any
person who collects water by means of cisterns, tanks or pools shall have
exclusive control over the same and shall have the right to dispose it only for
domestic purposes.

V. Intermediate Distances and Works For Certain Constructions and

Plantings
a. Constructions (examples: wells, sewers, etc.)
Rules (OC-P2V):
1. Follow distances fixed by Ordinances and Customs;
2. Protective structures prescribed by ordinances or custom must be
erected;
3. If none, Precautions must be taken to avoid damage to neighboring
estates; and
4. Violation causes responsibility for damages caused.

b. Plantings
Rules (OC-2-50):
1. Follow distances as prescribed by Ordinances;
2. In the absence of ordinances, Customs must be observed;
3. If none, the followign rules shall be observed:
i. For large trees: at least 2m from boundary;
ii. For shrubs, at least 50cm from the center of the tree

VI. Easement against Nuisance

The servient owner in an easement against nuisance is the proprietor or
possessor of the building or piece of land, who commits the nuisance thru noise,
jarring, offensive odor, etc.

The general public, or anybody injured by the nuisance is the dominant owner in
an easement against nuisance.

VII. Lateral and Subjacent Support

Lateral Support
When the supported and supporting lands are divided by a vertical plane; on the
same plane

Subjacent Support
When the supported land is above and the supporting land is beneath

Note: There exists a doubt as to whether easements against nuisance and lateral
and subjacent support may be categorized as legal easements. While they are
restrictions on ownership, still even without prohibition by the dominant estate,
the elimination of such support would be unlawful.

VOLUNTARY EASEMENTS
These are easements constituted by will of the parties or of a testator.

Extinguishment
A voluntary easement could be extinguished only by mutual agreement or by
renunciation of the owner of a dominant estate. The fact that an easement by
grant may have also qualified as an easement by necessity does not detract
from its permanency as a property right, which survives the termination of the
necessity.

It is generally effective between the parties, their heirs and assigns, except in
case where the rights and obligations under the contract are not transmissible by
their nature.

When the easement in this case was established by contract, the parties
unequivocally made provisions for its observance by all whom in the future might
succeed them in dominion.

Rules governing Voluntary Easements:

1. If created by title, such as contract or will, then by such title.
 2. If created by prescription, by the form and manner of possession of the
easement
3. In default of any of the above, by the provisions of the Civil Code on
easements

Voluntary Easements are established in favor of:

1. Predial servitudes
a. For the owner of the dominant estate; or
b. For any other person having any juridical relation with the dominant
estate, if the owner ratifies it.
2. Personal servitudes: for anyone capacitated to accept

Abandonment of Property
If upon the establishment of voluntary easement, the servient owner bounds
himself to bear the cost of use and preservation, he may free himself
therefrom, by renunciation of his property. The abandonment must appear in
a public instrument for convenience only.

NUISANCES

Any act, omission, establishment, business or condition of property or anything

else which: (ISA-HO)
1. Injures or endangers the health or safety of others;
2. Shocks, defies or disregards decency or morality;
3. Annoys or offends the senses;
4. Hinders or impairs the use of property; or
5. Obstructs or interferes with the free passage to any public highway or
street, or body of water

Nuisance is so comprehensive that it has been applied to almost all ways which
have interfered with the rights of the citizens, either in person, property, the
enjoyment of his property, or his comfort.

Classes of nuisance:
As to the object it affects:
1. Public- affects the community or a considerable number of persons
2. Private- affects only a person or a small number of persons
3. Mixed- nuisance may be both public and private in character

As to its susceptibility to summary abatement

1. Per se- nuisance at all times and under all circumstances regardless of
location and surrounding
2. Per accidens- nuisance by reason of circumstances, location, or
surroundings
Doctrine of Attractive Nuisance
One who maintains on his premises dangerous instrumentalities of a character
likely to attract children in play and who fails to exercise ordinary care to prevent
children from playing therewith is liable to a child of tender years who is injured
thereby, even if the child is technically a trespasser in the premises.

Note: Failure to abate by the successor of property constituting nuisance shall

be liable as the creator of such.

The Doctrine of Comparative Utility provides that there is only a n nuisance if

the annoyance outweighs the utility to the actor and to society as a whole.

Remedies against Public Nuisance:

1. Prosecution under the RPC or local ordinance;
2. Civil Action; and
3. Extrajudicial abatement

Remedies against Private Nuisance:

1. Civil Action; and
2. Extrajudicial Abatement

Extrajudicial Abatement
Requisites:
1. Nuisance must be specially injurious to the person affected;
2. No breach of peace of unnecessary injury must be committed;
3. Prior demand;
4. Prior demand has been rejected;
5. Approval by district health officer and assistance of local police;
6. Value of destruction does not exceed P3,000.

The action to abate a public/private nuisance is not extinguished by prescription

except in easements which are extinguished by obstruction and non-use
for 10 years

Defenses in actions for damages based on nuisance:

1. Public necessity; and
2. Estoppel