Easements;

Easement— a real right on another’s property, whereby the owner of the latter must refrain
from doing or allowing somebody else to do something on his property for the benefit of another
person or tenement.

Right consists of limited use and enjoyment of the property w/o possession; it gives
right in an action in rem [‘cos the right is constitutes on the thing itself] in favor of the owner of
tenement against the possessor of servient estate.

Acknowledgement of easement is an admission that the property belongs to another.

Characteristics:

Intransmissibility— [Art. 617] the easement is inseperable from the estate to which it is actively
or passively belongs. Hence it cannot be alienated or mortgaged separately from the estate to which it
forms part.

Indivisibility— even if the servient and dominant estate are divided between 2 or more persons,
the easement continues to attach to the estate originally affected.

Kinds:

[as to reciepent of benefit]

 Real—imposed upon immovable for the benefit of another immovable belonging to a different
owner
 Personal – imposed ipon an immovable for the benefit of a community, or of one or more
persons to whom the encumbered estate does not belong.

Real Personal
Imposed upon 2 estates:
o Servient estate [one who’s property is
being used for easement of servitude] Due to a person not on a thing
o Dominant estate [one who uses the
easement or benefits the servitude]
Right on personal servitude does not extend to
Right on servitude resides on the estate and not
the successor-in-interest of the person whom the
in the physical person who occupies or enjoys it.
right is granted

[as to its source]

 Legal
 Voluntary

[as to its exercise]

 Continuous— if the use is incessant without any intervention of any act of man
 Discontinuous— if it is used in intervals and it depends on the act of man; enjoyment can be had
only by interference of man
  Apparent— made known and are continually kept in view by external signs that shows its use
and enjoyment; it is not the presence of apparent signs showing the existence of an easement
but the manner of its exercise
 Non-apparent— no external indication of the existence of easement
 Positive— imposes upon the owner of the servient the obligation of allowing something to be
done on his property
 Negative— it prohibits the owner of servient from doing something which he could lawfully do
if the easement did not exist

Proof of easement;

Modes of acquiring easments;

A. By title

>All kinds of easement may be acquired by title.

>Refers to any juridical act

B. By prescription

>Only continuous and apparent may be acquired by prescription. [it must be both]

>May be acquired within 10 years. However, its commencement depends on whether the
easement is positive or negative.

If positive, 10 year period commences from the day on which the owner of the
dominant estate [or the person who used the easement] started to make use of it upon the
servient.

If negative, 10 year period commences from the day w/c the dominant forbade by an
instrument acknowledged before a notary public, the servient from performing an act which
would be lawful w/o the easement.

I. Legal Easement;

Relating to waters:

a. Drainage;
When does it exist? Based on physical condition of 2 estates, waters descend naturally and
without interbention of man from higher [dominant] to lower [servient]
b. Public Use;
 When does it exist? The banks or rivers and streams and the shores of the seas and lakes
throughout their entire length [and] within a zone of 3m in urban areas, 40m in forest areas,
and 20m in agricultural areas, along their margins, are subject to the easement of public use
in the interest of recreation, navigation, floatage, fishing and salvage.
c. Drawing waters [or for watering animals];
When does it exist? Imposable only for reasons of public use in favor of a town or village,
after payment of proper indemnity.
d. Abutment of dam;
When does it exist? Whenever it is necessary to build a dam for the purpose of diverting or
taking of 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 it must support it, an easement of abutment of dam may be
established only upon payment of the proper indemnity to the owner of the affected
estates.
e. Aqueduct;
When does it exist? [reqts]
1. He who wants to establish the easement must be able to prove that he can
dispose of the water;
2. Must also prove the it is sufficient for the use for which it is intended;
3. Show that the proposed right of way is the most convenient and the least
onerous to 3rd personas affected; and
4. Must identify the owners of the servient estates, as well as the owners of
the lower estates upon which the waters may filter.

Compulsory Right of Way:

Reqts:

1. Dominant estate is surrounded by other immovable and has no adequate outlet to a

public highway;
2. There must be payment of proper indemnity;
3. That the isolation was not due to acts of the proprietor of the dominant estate;
4. Right of way claimed is at the point least prejudicial to the servient estate [where
the distance from dominant estate to a public highway is the shortest.

Party wall:

Presumption of existence in the following cases:

a. Dividing walls of adjoining buildings up to the point of common elevations

b. Dividing walls of gardens or yards situated in cities, towns, or rural communities
c. In fences, walls, and live hedges dividing rural lands

*presumption will not apply if:

J There is title to the contrary;

 J There is exterior sign to the contrary; and
J There is proof to the contrary

Light and view;

Easement consists of in prohibiting or restraining the adjacent owner from doing anything which
may tend to cut-off or interrupt the light

Drainage of buildings;

Reqts:

1. Yard or court of the house must be surrounded by other houses, and it is not
possible to give an outlet through the house itself to the rain collected therefrom
2. The outlet to the water must be at the point of the contiguous lands where its
egress may be easiest;
3. Conduit for drainage must be established in such manner as to cause the least
damage to the servient; and
4. Payment of proper indemnity to the servient.

Distances;

In planting, the distance requirement is governed by:

J The distance authorized by local authorities or customs of the place; or

J In default, at the distance of at least 2m from the dividing line of the estate in
case of trees, and at least 50cm in case of shrubs or small trees.

Lateral and subjacent support;

Lateral if the supported and the supporting lands are divided by a vertical plane.

Subjacent if supported land is above and supporting land is beneath it.

Nuisance;

Classified into 2:

a. According to the object it affects; OR

b. According to its susceptibility to summary abatement

According to the object it affect:

J Public—Affects a neighborhood or any considerable number of persons although the

extent of annoyance, danger or damage upon individuals may be unequal
 J Private— violates only private rights; as distinguished from public, it affects only a
limited number of persons that includes any wrongful act which destroy or deteriorates
the property or interferes with the enjoyment of it

J Mixed— both public and private in the sense that it injures many persons and their
private rights

According to its susceptibility to summary abatement:

J Nuisance per se— when it affects the immediate safety of persons and property [w/c
may be summarily abated under undefined law of necessity]

J Nuisance per accidens— depends upon certain conditions and circumstances and its
existence being a question of fact; cannot be abated without due hearing in a tribunal
authorized to decide whether such a thing does in law constitute a nuisance. [Not a
nuisance per se but may become one by reason any condition or circumstance.]

*Doctrine of Attractive Nuisance— one who maintains on his premises dangerous

instrumentalities or appliances 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 by it even if the child is a trespasser.

Remedies against nuisance:

Whether public or private:

J Civil action
-Civil action for abatement [judicial abatement] or for injunction. In case of
public nuisance w/c is not nuisance per se [summary abatement is not
available], the action should be commenced by the city or municipal mayor.

-Damages may be claimed by any person who was injured by a private nuisance.
For public nuisance, generally no claim for damages is available UNLESS it is
specially injurious to himself.
-who may be liable? Every successive owner or possessor who refuses to abate
liable as one who created such nuisance.

J Abatement
-may either be extrajudicial or judicial
-extrajudicial abatement, however, is available only if it is a nuisance per se.
[‘cos per accidens is a question of fact, and can be determined only upon due
hearing]

With regard to public nuisance, criminal prosecution under RPC or any applicable local
ordinance is available.
 Who may abate? [Art 700] City/Municipal Health Officer is charged with the responsibility for
abating public nuisance. Private person may also abate public nuisance that which is especially injurious
to him. However this will only happen if, prior to abatement: there is demand to abate the nuisance;
demand was rejected; abatement was approved by district health officer and executed w/ assistance
of police; and the value of destruction does not exceed Php 3k.

Public official or private person may be liable for damages if: he causes unnecessary injury OR if
an alleged nuisance is later declared by court to be not a real nuisance at all.

II. Voluntary easement;

May only be constituted upon the will of the servient estate. Only the owner may constitute an
easement over a tenement ‘cos the creation of servitude is a disposition of the right of ownership which
can only be done by an owner.

Owner may even constitute any servitude on a tenement or land w/o consent from the
usufructuary. If it is the latter who will constitute the servitude it will not bind the owner. Hence upon
the termination of the usufruct the servitude also terminates.

If tenement or land is co-owned, it is required that there must be a unanimous consent of all
the co-owners. Consent may be given simultaneously or successively. He cannot later on change his
mind and withdraw his decision if the other co-owners decides to give their consent.

If servient wishes to free himself from obligation of costs and preservation, he may do so by
renouncing the property to the dominant estate. [Art 1358, NCC requires that it must appear in a public
document since it is a transmission of ownership over a real prop, however this is for mere convenience
and does not affect the validity of contract.]