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H. Easements

1. Characteristics

a. CONCEPT

An easement or servitude is an encumbrance imposed upon an immovable for the benefit of another immovable belonging to a different owner. (Paragraph 2, Article 613, Ibid.)

An easement is a real right on another’s property, corporeal and immovable, whereby the owner of the latter must refrain from doing or allowing somebody else to do or something to be done on his property, for the benefit of another person or tenement. (Quimen v. CA, G.R. No. 112331, 29 May 1996)

It is jus in re aliena, inseparable, indivisible and perpetual, unless extinguished by causes provided by law. (Ibid.)

It exists only when the servient and dominant estates belong to two different owners. It gives the holder of the easement an incorporeal interest on the land but grants no title thereto. Therefore, an acknowledgment of the easement is an admission that the property belongs to another. (Sps. Mercader v. Sps. Bardilas, G.R. No. 163157, 27 June 2016)

1) Dominant estate v. Servient estate

The immovable in favor of which the easement is established is called the dominant estate; that which is subject thereto, the servient estate. (Paragraph 2, Article 613, Civil Code)

2) Inseparable from, and attaches to, estate

Easements are inseparable from the estate to which they actively or passively belong. (Article 617, Ibid.)

3) Indivisible

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. (Article 618, Ibid.)

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, or making it more burdensome in any other way. (Paragraph 2, Article 618, Ibid.)

b. TYPES OF EASEMENTS

1) Public use v. Interests of Private Persons

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. (Article 614, Ibid.)

Easements imposed by law have for their object either public use or the interest of private persons. (Article 634, Ibid.)

2) Continuous v. Discontinuous

Easements may be continuous or discontinuous. (Ibid.)

Continuous easements are those the use of which is or may be incessant, without the intervention of any act of man.(Paragraph 2, Article 615, Ibid.)

Discontinuous easements are those which are used at intervals and depend upon the acts of man.(Paragraph 3, Article 615, Ibid.)

3) Apparent v. Nonapparent easements

Easements may be apparent or nonapparent. (Ibid.)

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. (Paragraph 4, Article 615, Ibid.)

Nonapparent easements are those which show no external indication of their existence. (Paragraph 5, Article 615, Ibid.)

4) Positive v. Negative

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. (Paragraph 2, Article 616, Ibid.)

A negative easement is one that which prohibits the owner of the servient estate from doing something which he could lawfully do if the easement did not exist. (Paragraph 2, Article 616, Ibid.)

a) Significance of whether positive or negative easement

According to Article 621 of the Civil Code, in order to acquire easements by prescription in positive easements, the prescriptive period shall commence 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. (Sps. Garcia v. Santos, G.R. No. 228334, 17 June 2019)

With respect to negative easements, the prescnptive period shall commence from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement. (Ibid.)

b) Easement of light and view as both positive and negative easement

An easement of light and view may either be positive or negative. (Ibid.)

As a general rule, an easement of light and view is a positive one if the window or opening is situated in a party wall, while it is a negative one if the window or opening is thru one’s own wall, i.e., thru a wall of the dominant estate. However, even if the window is on one’s own wall, still the easement would be positive if the window is on a balcony or projection extending over into the adjoining land. (Ibid.)

In an early case,  the Court held that the easement of light and view in the case of windows opened in one’s own wall is negative. As such easement is a negative one, it cannot be acquired by prescription except where sufficient time of possession has elapsed after the owner of the dominant estate, by a formal act, has prohibited the owner of the servient estate from doing something which would be lawful but for the easement. (Ibid.)

The phrase “formal act” would require not merely any writing, but one executed in due fonn and/or with solemnity. This is expressly stated in Article 668 of the Civil Code which states that the period of prescription for the acquisition of an easement oflight and view shall be counted: (1) from the time of the opening of the window, ifit is through a party wall; or (2) from the time of the formal prohibition upon the proprietor of the adjoining land or tenement, if the window is through a wall on the dominant estate. (Ibid.)

2. Classification

Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary easements. (Article 619, Civil Code)

Classifications of easements:

1) Legal easements; and

2) Voluntary easements.

a. LEGAL EASEMENTS

1) Concept

Easements imposed by law have for their object either public use or the interest of private persons. (Article 634, Ibid.)

1) Public use

2) Interest of private persons

Easements established by law in the interest of private persons or for private use shall be governed by the Civil Code, without prejudice to the provisions of general or local laws and ordinances for the general welfare. (Article 636, Ibid.)

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. (Ibid.)

2) Easement relating to waters

a) Obligations of lower estates to receive waters

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.(Article 637, Ibid.)

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. (Paragraph 2, Article 637, Ibid.)

b) Banks of rivers and streams

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.(Article 638, Ibid.)

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. (Paragraph 2, Article 638, Ibid.)

If it be necessary for such purpose to occupy lands of private ownership, the proper indemnity shall first be paid. (Paragraph 3, Article 638, Ibid.)

c) Dam, diverting water

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. (Article 639, Ibid.)

d) Drawing water, watering animals

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. (Article 640, Ibid.)

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. (Article 641, Ibid.)

e) Aqueduct for private interest

(1) Obligation of dominant estate

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. (Article 642, Ibid.)

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. (Article 643, Ibid.)

(2) Limitations

The easement of aqueduct for private interest cannot be imposed on buildings, courtyards, annexes, or outhouses, or on orchards or gardens already existing.(Article 644, Ibid.)

(3) Rights of servient estate

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. (Article 645, Ibid.)

(4) Continuous and apparent

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. (Article 646, Ibid.)

(5) Stop lock or sluice gate

One who for the purpose of irrigating or improving his estate, has to construct a stop lock or sluice gate in the bed of the stream from which the water is to be taken, may demand that the owners of the banks permit its construction, after payment of damages, including those caused by the new easement to such owners and to the other irrigators. (Article 647, Ibid.)

3). Easement of Right of Way

The conditions sine quo non for a valid grant of an easement of right of way are:

1) the dominant estate is surrounded by other immovables without an adequate outlet to a public highway;

2) the dominant estate is willing to pay the proper indemnity;

3) the isolation was not due to the acts of the dominant estate; and

4) the right of way being claimed is at a point least prejudicial to the servient estate. (Quimen v. CA, supra.)

A right of way is a privilege constituted by covenant or granted by law to a person or class of persons to pass over another’s property when his tenement is surrounded by realties belonging to others without an adequate outlet to the public highway. The owner of the dominant estate can demand a right of way through the servient estate provided he indemnifies the owner thereof for the beneficial use of his property. (Ibid.)

It is settled that road right of way is a discontinuous apparent easement in the context of Article 622 of the Civil Code, which provides that continuous non-apparent easements, and discontinuous ones, whether apparent or not, may be acquired only by virtue of title. (Sps. Mercader v. Sps. Bardillas, supra.)

b) Payment for indemnity

The owner, or any person who by virtue of a real right may cultivate or use any immovable, which is surrounded by other immovables 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.(Article 649, Civil Code)

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.(Paragraph 2, Article 649, Ibid.)

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.(Paragraph 3, Article 649, Ibid.)

This easement is not compulsory if the isolation of the immovable is due to the proprietor’s own acts. (Paragraph 2, Article 649, Ibid.)

c) Established at point least prejudicial

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. (Article 650, Ibid.)

(1) Width sufficient for needs

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. (Article 651, Ibid.)

d) When no indemnity required

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.(Article 651, Ibid.)

In case of a simple donation, the donor shall be indemnified by the donee for the establishment of the right of way. (Paragraph 2, Article 651, Ibid.)

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. (Article 653, Ibid.)

e) Necessary repairs

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.(Article 654, Ibid.)

f) Ceases to be necessary

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.(Article 655, Ibid.)

The same rule shall be applied in case a new road is opened giving access to the isolated estate.(Paragraph 2, Article 655, Ibid.)

In both cases, the public highway must substantially meet the needs of the dominant estate in order that the easement may be extinguished. (Paragraph 3, Article 655, Ibid.)

g) Transit of construction supplies

If it be indispensable for the construction, repair, improvement, alteration or beautification of a building, to carry materials through the estate of another, or to raise therein scaffolding or other objects necessary for the work, the owner of such estate shall be obliged to permit the act, after receiving payment of the proper indemnity for the damage caused him. (Article 656, Ibid.

h) Passage of livestock, animal path

Easements of the right of way for the passage of livestock known as animal path, animal trail or any other, and those for watering places, resting places and animal folds, shall be governed by the ordinances and regulations relating thereto, and, in the absence thereof, by the usages and customs of the place.(Article 657, Ibid.)

Without prejudice to rights legally acquired, the animal path shall not exceed in any case the width of 75 meters, and the animal trail that of 37 meters and 50 centimeters. (Paragraph 2, Article 657, Ibid.)

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 case the width shall not exceed 10 meters. (Paragraph 3, Article 657, Ibid.

i) Opening of adequate outlet does not necessarily extinguish voluntary easement of right of way

The opening of an adequate outlet to a highway can extinguish only legal or compulsory easements, not voluntary easements. (Unisource Commercial and Development Corporation v. Chung, G.R. No. 173252, 17 July 2009)

A voluntary easement of right of way, like any other contract, could be extinguished only by mutual agreement or by renunciation of the owner of the dominant estate. (Ibid.)

The fact that an easement by grant may have also qualified as an easement of necessity does not detract from its permanency as a property right, which survives the termination of the necessity. (Ibid.)

4) Easement of Party Wall

a) Applicable rules 

The easement of party wall shall be governed by the applicable provisions of the Civil Code, by the local ordinances and customs insofar as they do not conflict with the same, and by the rules of co-ownership.(Article 658, Ibid.)

b) Presumption favors easement of a party wall

The existence of an easement of party wall is presumed, unless there is a title, or exterior sign, or proof to the contrary:

1) In dividing walls of adjoining buildings up to the point of common elevation;

2) In dividing walls of gardens or yards situated in cities, towns, or in rural communities;

3) In fences, walls and live hedges dividing rural lands.(Article 659, Ibid.)

(1) Exterior sign

It is understood that there is an exterior sign, contrary to the easement of 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 or 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, floors and roof frame of one of the buildings, but not those of the others;

5) Whenever the dividing wall between courtyards, gardens, 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 inclosed by fences or live hedges adjoin others which are not inclosed. (Article 660, Ibid.)

In all these cases, the ownership of the walls, fences or hedges shall be deemed to belong exclusively to the owner of the property or tenement which has in its favor the presumption based on any one of these signs. (Paragraph 2, Article 660, Ibid.)

(2) Ditches or drains

Ditches or drains opened between two estates are also presumed as common to both, if there is no title or sign showing the contrary. (Article 661, Ibid.)

There is a sign contrary to the part-ownership whenever the earth or dirt removed to open the ditch or to clean it is only on one side thereof, in which case the ownership of the ditch shall belong exclusively to the owner of the land having this exterior sign in its favor. (Paragraphh 2, Article 6611, Ibid.)

c) Construction, maintenance and repair costs

The cost of repairs and construction of party walls and the maintenance of fences, live hedges, ditches, and drains owned in common, shall be borne by all the owners of the lands or tenements having the party wall in their favor, in proportion to the right of each. (Article 662, Ibid.)

Nevertheless, any owner may exempt himself from contributing to this charge by renouncing his part-ownership, except when the party wall supports a building belonging to him. (Paragraph 2, Article 662, Ibid.)

d) Demolition of building supported by a party wall

If the owner of a building, supported by a party wall desires to demolish the building, he may also renounce his part-ownership of the wall, but the cost of all repairs and work necessary to prevent any damage which the demolition may cause to the party wall, on this occasion only, shall be borne by him. (Article 663, Ibid.)

e) Increasing height of a party wall

Every owner may increase the height of the party wall, doing at his own expense and paying for any damage which may be caused by the work, even though such damage be temporary.(Article 664, Ibid.)

The expenses of maintaining the wall in the part newly raised or deepened at its foundation shall also be paid for by him; and, in addition, the indemnity for the increased expenses which may be necessary for the preservation of the party wall by reason of the greater height or depth which has been given it.(Paragraph 2, Article 664, Ibid.)

If the party wall cannot bear the increased height, the owner desiring to raise it shall be obliged to reconstruct it at his own expense and, if for this purpose it be necessary to make it thicker, he shall give the space required from his own land. (Paragraph 3, Article 664, Ibid.)

The other owners who have not contributed in giving increased height, depth or thickness to the wall may, nevertheless, acquire the right of part-ownership therein, by paying proportionally the value of the work at the time of the acquisition and of the land used for its increased thickness. (Article 665, Ibid.)

f) Extent of use of a party wall

Every part-owner of a party wall may use it in proportion to the right he may have in the co-ownership, without interfering with the common and respective uses by the other co-owners. (Article 666, Ibid.)

5) Easement of Light and View

a) Concept

The legal easement called easement of light and view refers to an easement whereby the dominant estate enjoys the right to have free access to light, a little air, and a view overlooking the adjoining estate, i.e., the servient estate. (Sps. Garcia v. Santos, G.R. No. 228334, 17 June 2019)

a) 2 components: easement of light, easement of view

The easement of light and view has two components. The easement of light or jus luminum has the purpose of admitting light and a little air, as in the case of small windows, not more than 30 centimeters square, at the height of the ceiling joists or immediately under the ceiling. On the other hand, the easement of view or servidumbre prospectus has the principal purpose of affording view, as in the case of full or regular windows overlooking the adjoining estate.

Explained otherwise, the easement of light is the right to make openings under certain conditions in order to receive light from another’s tenement while the easement of view is the right to make openings or windows, to enjoy the view through the estate of another and the power to prevent all constructions or works which would obstruct such view or make the same difficult. The easement of view is broader than the easement of light because the latter is always included in the former.

As held by jurisprudence, the easement of light and view is intrinsically intertwined with the easement of the servient estate not to build higher or altius non tollendi. These two 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.”

b) No opening of window or aperture on party wall, without consent of others

No part-owner may, without the consent of the others, open through the party wall any window or aperture of any kind. (Article 667, Ibid.)

c) Prescription for acquisition of easement of light and view

The period of prescription for the acquisition of an easement of light and view shall be counted:

1) From the time of the opening of the window, if it is through a party wall; or

2) From the time of the formal prohibition upon the proprietor of the adjoining land or tenement, if the window is through a wall on the dominant estate. (Article 668, Ibid.)

d) The distance limitation in case of projections

No windows, apertures, balconies, or other similar projections which afford a direct view upon or towards an adjoining land or tenement can be made, without leaving a distance of two meters between the wall in which they are made and such contiguous property.(Article 670, Ibid.)

Neither can side or oblique views upon or towards such conterminous property be had, unless there be a distance of sixty centimeters.(Paragraph 2, Article 670, Ibid.)

The non-observance of these distances does not give rise to prescription.(Paragraph 3, Article 670, Ibid.)

The distance referred to in the preceding article shall be measured in cases of direct views from the outer line of the wall when the openings do not project, from the outer line of the latter when they do, and in cases of oblique view from the dividing line between the two properties.(Article 671, Ibid.)

The provisions of Article 670 are not applicable to buildings separated by a public way or alley, which is not less than three meters wide, subject to special regulations and local ordinances.(Article 672, Ibid.)

Whenever by any title a right has been acquired to have direct views, balconies or belvederes overlooking an adjoining property, the owner of the servient estate cannot build thereon at less than a distance of three meters to be measured in the manner provided in Article 671. Any stipulation permitting distances less than those prescribed in Article 670 is void.(Article 673, Ibid.)

e) Effects if distance is not observed

When the distances in Article 670 are not observed, the owner of a wall which is not party wall, adjoining a tenement or piece of land belonging to another, can make in it openings to admit light at the height of the ceiling joints or immediately under the ceiling, and of the size of thirty centimeters square, and, in every case, with an iron grating imbedded in the wall and with a wire screen.(Article 669, Ibid.)

Nevertheless, the owner of the tenement or property adjoining the wall in which the openings are made can close them should he acquire part-ownership thereof, if there be no stipulation to the contrary.(Paragraph 2, Article 669, Ibid.)

He can also obstruct them by constructing a building on his land or by raising a wall thereon contiguous to that having such openings, unless an easement of light has been acquired. (Paragraph 3, Article 669, Ibid.)

6) Drainage of Buildings

a) Rainwater on roof

The owner of a building shall be obliged to construct its roof or covering in such manner that the rain water shall fall on his own land or on a street or public place, and not on the land of his neighbor, even though the adjacent land may belong to two or more persons, one of whom is the owner of the roof. Even if it should fall on his own land, the owner shall be obliged to collect the water in such a way as not to cause damage to the adjacent land or tenement. (Article 674, Ibid.)

b) Receiving rainwater

The owner of a tenement or a piece of land, subject to the easement of receiving water falling from roofs, may build in such manner as to receive the water upon his own roof or give it another outlet in accordance with local ordinances or customs, and in such a way as not to cause any nuisance or damage whatever to the dominant estate. (Article 675, Ibid.)

c) When easement is demandable

Whenever the yard or court of a house is surrounded by other houses, and it is not possible to give an outlet through the house itself to the rain water collected thereon, the establishment of an easement of drainage can be demanded, giving an outlet to the water at the point of the contiguous lands or tenements where its egress may be easiest, and establishing a conduit for the drainage in such manner as to cause the least damage to the servient estate, after payment of the property indemnity. (Article 676, Ibid.)

7) Intermediate Distances and Works for Certain Constructions and Plantings

a) Fortified places

No constructions can be built or plantings made near fortified places or fortresses without compliance with the conditions required in special laws, ordinances, and regulations relating thereto. (Article 677, Ibid.)

b) Dangerous or noxious substances

No person shall build any aqueduct, well, sewer, furnace, forge, chimney, stable, depository of corrosive substances, machinery, or factory which by reason of its nature or products is dangerous or noxious, without observing the distances prescribed by the regulations and customs of the place, and without making the necessary protective works, subject, in regard to the manner thereof, to the conditions prescribed by such regulations. These prohibitions cannot be altered or renounced by stipulation on the part of the adjoining proprietors.(Article 678, Ibid.)

In the absence of regulations, such precautions shall be taken as may be considered necessary, in order to avoid any damage to the neighboring lands or tenements. (Paragraph 2, Article 678, Ibid.)

c) Trees

(1) Planting of trees

No trees shall be planted near a tenement or piece of land belonging to another except at the distance authorized by the ordinances or customs of the place, and, in the absence thereof, at a distance of at least two meters from the dividing line of the estates if tall trees are planted and at a distance of at least fifty centimeters if shrubs or small trees are planted.(Article 679, Ibid.)

Every landowner shall have the right to demand that trees hereafter planted at a shorter distance from his land or tenement be uprooted.(Paragraph 2, Article 679, Ibid.)

The provisions of this article also apply to trees which have grown spontaneously. (Paragraph 3, Article 679, Ibid.)

(2) Encroaching branches

If the branches of any tree should extend over a neighboring estate, tenement, garden or yard, the owner of the latter shall have the right to demand that they be cut off insofar as they may spread over his property, and, if it be the roots of a neighboring tree which should penetrate into the land of another, the latter may cut them off himself within his property. (Article 680, Ibid.)

(3) Fruits falling on adjacent lands

Fruits naturally falling upon adjacent land belong to the owner of said land. (Article 681, Ibid.)

8) Easement Against Nuisance

Every building or piece of land is subject to the easement which prohibits the proprietor or possessor from committing nuisance through noise, jarring, offensive odor, smoke, heat, dust, water, glare and other causes.(Article 682, Ibid.)

Subject to zoning, health, police and other laws and regulations, factories and shops may be maintained provided the least possible annoyance is caused to the neighborhood. (Paragraph 2, Article 682, Ibid.)

9) Lateral and Subjacent Support

No proprietor shall make such excavations upon his land as to deprive any adjacent land or building of sufficient lateral or subjacent support.(Article 684, Ibid.)

Any stipulation or testamentary provision allowing excavations that cause danger to an adjacent land or building shall be void.(Article 685, Ibid.)

The legal easement of lateral and subjacent support is not only for buildings standing at the time the excavations are made but also for constructions that may be erected. (Article 686, Ibid.)

Any proprietor intending to make any excavation contemplated in the three preceding articles shall notify all owners of adjacent lands. (Article 687, Ibid.)

b. VOLUNTARY EASEMENTS

1) Concept

Every owner of a tenement or piece of land may establish thereon the easements which he may deem suitable, and in the manner and form which he may deem best, provided he does not contravene the laws, public policy or public order.(Article 688, Ibid.)

2) Usufructuary

The owner of a tenement or piece of land, the usufruct of which belongs to another, may impose thereon, without the consent of the usufructuary, any servitudes which will not injure the right of usufruct. (Article 689, Ibid.)

c. NAKED OWNERSHIP, BENEFICIAL OWNERSHIP, DIFFERENT PERSONS

Whenever the naked ownership of a tenement or piece of land belongs to one person and the beneficial ownership to another, no perpetual voluntary easement may be established thereon without the consent of both owners.(Article 690, Ibid.)

d. CONSENT OF ALL CO-OWNERS

In order to impose an easement on an undivided tenement, or piece of land, the consent of all the co-owners shall be required. (Article 691, Ibid.)

The consent given by some only, must be held in abeyance until the last one of all the co-owners shall have expressed his conformity.(Paragraph 2, Article 691, Ibid.)

But the consent given by one of the co-owners separately from the others shall bind the grantor and his successors not to prevent the exercise of the right granted. (Paragraph 3, Article 691, Ibid.)

e. TITLE/POSSESSION OF EASEMENT ACQUIRED BY PRESCRIPTION

The title and, in a proper case, the possession of an easement acquired by prescription shall determine the rights of the dominant estate and the obligations of the servient estate. In default thereof, the easement shall be governed by such provisions of the Civil Code as are applicable thereto. (Article 692, Ibid.)

f. IF SERVIENT ESTATE BOUND TO PAY COSTS FOR USE AND PRESERVATION

If the owner of the servient estate should have bound himself, upon the establishment of the easement, to bear the cost of the work required for the use and preservation thereof, he may free himself from this obligation by renouncing his property to the owner of the dominant estate. (Article 93, Ibid.)

3. Modes of acquiring easements

There are tow modes of acquiring easements:

1) By title; or

2) By prescription.

Aside from prescription, easements may likewise be acquired through title. The term “title” does not necessarily mean a document. Instead, it refers to a juridical act or law sufficient to create the encumbrance. (Sps. Garcia v. Santos, G.R. No. 228334, 17 June 2019)

a. TITLE

1) Continuous nonapparent, distontinuous

Continuous nonapparent easements, and discontinuous ones, whether apparent or not, may be acquired only by virtue of a title. (Article 622, Ibid.)

2) Deed of recognition

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. (Article 623, Ibid.)

3) Continuous nonapparent, distontinuous

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. (Article 624, Ibid.)

The immediately preceding paragraph shall also apply in case of the division of a thing owned in common by two or more persons. (Ibid.)

a) Legal presumption or apparent sign

The mode of acquiring an easement under Article 624 is a “legal presumption or apparent sign.” Article 624 finds application in situations wherein two or more estates were previously owned by a singular owner, or even a single estate but with two or more portions being owned by a singular owner. Originally, there is no true easement that exists as there is only one owner. Hence, at the outset, no other owner is imposed with a burden. Subsequently, one estate or a portion of the estate is alienated in favor of another person, wherein, in that estate or portion of the estate, an apparent visible sign of an easement exists. According to Article 624, there arises a title to an easement of light and view, even in the absence of any formal act undertaken by the owner of the dominant estate, if this apparent visible sign, such as the existence of a door and windows, continues to remain and subsist, unless, at the time the ownership of the two estates is divided, (1) the contrary should be provided in the title of conveyance of either of them, or (2) the sign aforesaid should be removed before the execution of the deed. (Sps. Garcia v. Santos, supra.)

b) Article 624 as an exception

While it is a general rule that a window or opening situated on the wall of the dominant estate involves a negative easement, and, thus, may only be acquired by prescription, tacked from the time of the formal prohibition upon the proprietor of the servient estate, it is not true that all windows or openings situated on the wall of the dominant estate may only be acquired through prescription. (Ibid.)

Jurisprudence has recognized that Article 624 is an exception carved out by the Civil Code that must be taken out of the coverage of the general rule that an easement of light and view in the case of windows opened in one’s own wall is a negative easement that may only be acquired by prescription, tacked from a formal prohibition relayed to the owner of the servient estate. (Ibid.)

b. PRESCRIPTION

1) Continuous and apparent easements

Continuous and apparent easements are acquired either by virtue of a title or by prescription of ten years. (Article 620, Ibid.)

In order to acquire by prescription the easements referred to in the preceding article, the time of possession shall be computed thus: in positive easements, from the day on which the owner of the dominant estate, or the person who may have made use of the easement, commenced to exercise it upon the servient estate; and in negative easements, from the day on which the owner of the dominant estate forbade, by an instrument acknowledged before a notary public, the owner of the servient estate, from executing an act which would be lawful without the easement.(Article 621, Ibid.)

e. ESTABLISHMENT OF EASEMENT, EFFECTS

Upon the establishment of an easement, all the rights necessary for its use are considered granted. (Article 625, Ibid.)

f. LIMITED USE BY DOMINANT ESTATE

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. (Article 626, Ibid.)

4. Rights and obligations of the owners of the dominant and servient estates

a. DOMINANT ESTATE

1) Retains ownership of portion on which easement is established

The owner of the servient estate retains ownership of the portion on which the easement is established, and may use the same in such manner as not to affect the exercise of the easement. (Sps. Mercader v. Sps. Bardilas, G.R. No. 163157, 27 June 2016)

With the right of way rightfully belonging to them as the owners of the burdened property, the Spouses Bardilas remained entitled to avail themselves of all the attributes of ownership under the Civil Code, specifically: jus utendi, jus fruendi, jus abutendi, jus disponendi and jus vindicandi. Article 428 of the Civil Code recognizes that the owner has the right to enjoy and dispose of a thing, without other limitations than those established by law. (Ibid.)

2) Convenience not the basis for grant

The convenience of the dominant estate’s owner is not the basis for granting an easement of right of way, especially if the owner’s needs may be satisfied without imposing the easement. (Reyes v. Sps. Valentin, G.R. No. 194488, 11 February 2015)

a) Adequacy as standard

The convenience of the dominant estate has never been the gauge for the grant of compulsory right of way. To be sure, 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, as in this case, even when the said outlet, for one reason or another, be inconvenient, the need to open up another servitude is entirely unjustified. (Dichoso v. Marcos, supra.)

Case law

1) In Cristobal v. CA, the Court disallowed the easement prayed for because an outlet already exists which is a path walk located at the left side of petitioners’ property and which is connected to a private road about five hundred (500) meters long. The private road, in turn, leads to Ma. Elena Street, which is about 2.5 meters wide, and finally, to Visayas Avenue. This outlet was determined by the Court to be sufficient for the needs of the dominant estate. (Ibid.)

2) In Floro v. Llenado, we refused to impose a right of way over petitioner’s property although private respondent’s alternative route was admittedly inconvenient because he had to traverse several ricelands and rice paddies belonging to different persons, not to mention that said passage is impassable during the rainy season. (Ibid.)

3) In Ramos v. Gatchalian Realty, Inc., this Court refused to grant the easement prayed for even if petitioner had to pass through lots belonging to other owners, as temporary ingress and egress, which lots were grassy, cogonal, and greatly inconvenient due to flood and mud because such grant would run counter to the prevailing jurisprudence that mere convenience for the dominant estate does not suffice to serve as basis for the easement. (Ibid.)

3) Burden on proof on dominant estate

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. 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 may be granted. (Dichoso v. Marcos, G.R. No. 180282, 11 April 2011)

b. SERVIENT ESTATE

1) To pay for expenses for the use and preservation

The owner of the dominant estate may make, at his own expense, on the servient state any works necessary for the use and preservation of the servitude, but without altering it or rendering it more burdensome. (Article 627, Ibid.)

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. (Paragraph 2, Article 627, Ibid.)

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. Any one 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. (Article 628, Ibid.)

2) To avoid impairment of the servitude

The owner of the servient estate cannot impair, in any manner whatsoever, the use of the servitude.(Article 629, Ibid.)

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. (Paragraph 2, Article 629, Ibid.)

3) To respect ownership rights of servient estate

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. (Article 630, Ibid.)

c. CRITERIA FOR EASEMENT ON RIGHT OF WAY

1) Criterion on least prejudice

2) Criterion on short distance

Article 650 of the Civil Code provides that 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. Under this guideline, whenever there are several tenements surrounding the dominant estate, the right-of-way must be established on the tenement where the distance to the public road or highway is shortest and where the least damage would be caused. If these two criteria (shortest distance and least damage) do not concur in a single tenement, we have held in the past that the least prejudice criterion must prevail over the shortest distance criterion. (Calimoso v. Roullo, G.R. No. 198594, 25 January 2016)

“Distance” is considered only insofar as it is consistent to the requirement of “least prejudice.” (Reyes v. Sps. Valentin, G.R. No. 194488, 11 February 2015)

3) Criterion on least prejudice prevails over criterion of short distance

The Supreme Court had already affirmed the preferred status of the requirement of “least prejudice” over distance of the dominant estate to the public highway. (Reyes v. Sps. Valentin, supra.)

The criterion of least prejudice to the servient estate must prevail over the criterion of shortest distance although this is a matter of judicial appreciation. In other words, where the easement may be established on any of several tenements surrounding the dominant estate, the one where the way is shortest and will cause the least damage should be chosen. If having these two (2) circumstances do not concur in a single tenement, the way which will cause the least damage should be used, even if it will not be the shortest. (Sps. Williams v. Zerda, G.R. No. 207146, 15 March 2017)

In easement of right of way, that easement where the way is shortest and will cause least prejudice shall be chosen. However, if the two circumstances do not concur in a single tenement, the way where damage will be least shall be used even if not the shortest route. This is so because least prejudice prevails over shortest distance. This means that the court is not bound to establish what is the shortest distance; a longer way may be adopted to avoid injury to the servient estate, such as when there are constructions or walls which can be avoided by a round about way, or to secure the interest of the dominant owner, such as when the shortest distance would place the way on a dangerous decline. (Quimen v. CA, G.R. No. 112331, 29 May 1996)

5. Modes of extinguishment

a. Modes of Extinguishment of Easements

Easements are extinguished:

1) By merger in the same person of the ownership of the dominant and servient estates;

2) By nonuser for ten years; with respect to discontinuous easements, this period shall be computed from the day on which they ceased to be used; and, with respect to continuous easements, from the day on which an act contrary to the same took place;

3) When either or both of the estates fall into such condition that the easement cannot be used; but it shall revive if the subsequent condition of the estates or either of them should again permit its use, unless when the use becomes possible, sufficient time for prescription has elapsed, in accordance with the provisions of the preceding number;

4) By the expiration of the term or the fulfillment of the condition, if the easement is temporary or conditional;

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

6) By the redemption agreed upon between the owners of the dominant and servient estates. (Article 631, Ibid.)

The form or manner of using the easement may prescribe as the easement itself, and in the same way.(Article 632, Ibid.)

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. (Article 633, Ibid.)

b. REGISTRATION OF EASEMENTS

The registration of the dominant estate under the Torrens system without the annotation of the voluntary easement in its favor does not extinguish the easement. On the contrary, it is the registration of the servient estate as free, that is, without the annotation of the voluntary easement, which extinguishes the easement. (Unisource Commercial and Development Corporation v. Chung, supra.)

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