PROPERTY - FINALS
WEEK 1 LIMITATION ON PROPERTY RIGHTS
EMINENT DOMAIN
1987 Constitution (Article III)
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the equal
protection of the laws.
Section 9. Private property shall not be taken for public use without
just compensation.
NCC
Article 435. No person shall be deprived of his property except by
competent authority and for public use and always upon payment of
just compensation. Should this requirement be not first complied
with, the courts shall protect and, in a proper case, restore the owner
in his possession.
LGC
Section 19. Eminent Domain. - A local government unit may,
through its chief executive and acting pursuant to an ordinance,
exercise the power of eminent domain for public use, or purpose or
welfare for the benefit of the poor and the landless, upon payment of
just compensation, pursuant to the provisions of the Constitution and
pertinent laws: Provided, however, That the power of eminent
domain may not be exercised unless a valid and definite offer has
been previously made to the owner, and such offer was not accepted:
Provided, further, That the local government unit may immediately
take possession of the property upon the filing of the expropriation
proceedings and upon making a deposit with the proper court of at
least fifteen percent (15%) of the fair market value of the property
based on the current tax declaration of the property to be
expropriated: Provided, finally, That, the amount to be paid for the
expropriated property shall be determined by the proper court, based
on the fair market value at the time of the taking of the property.
Republic v. Castellvi, 58 SCRA 336
FACTS: In 1947, the republic, through the Armed Forces of the
Philippines (AFP), entered into a lease agreement over a land in
Pampanga with Castellvi on a year-to-year basis. When Castellvi
gave notice to terminate the lease in 1956, the AFP refused because
of the permanent installations and other facilities worth almost
P500,000.00 that were erected and already established on the
property. She then instituted an ejectment proceeding against the
AFP. In 1959, however, the republic commenced the expropriation
proceedings for the land in question.
ISSUE: Whether or not the compensation should be
determined as of 1947 or 1959.
RULING: The Supreme Court ruled that the “taking” should not be
reckoned as of 1947, and that just compensation should not be
determined on the basis of the value of the property as of that year.
The requisites for taking are:
1. The expropriator must enter a private property;
2. The entry must be for more than a momentary period;
3. It must be under warrant or color of authorities;
4. The property must be devoted for public use or otherwise
informally appropriated or injuriously affected; and
5. The utilization of the property for public use must be such a
way as to oust the owner and deprive him of beneficial
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enjoyment of the property.
Only requisites 1, 3, and 4 were present. It is clear, therefore, that
the "taking" of Catellvi's property for purposes of eminent domain
cannot be considered to have taken place in 1947 when the Republic
commenced to occupy the property as lessee thereof.
Under Sec. 4, Rule 67 of the Rules of Court, “just compensation”
is to be determined as of the date of the filing of the complaint. The
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Supreme Court has ruled that when the taking of the property sought
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to be expropriated coincides with the commencement of the
expropriation proceedings, or takes place subsequent to the filing of
the complaint for eminent domain, the just compensation should be
determined as of the date of the filing of the complaint.
In the instant case, it is undisputed that the Republic was placed
in possession of the Castellvi property, by authority of court, on
August 10, 1959. The “taking” of the Castellvi property for the
purposes of determining the just compensation to be paid must,
therefore, be reckoned as of June 26, 1959 when the complaint for
eminent domain was filed.
City Government of Quezon City v. Ericta
Facts: Section 9 of Ordinance No 6118 requires that at least 6% of
the total area of a memorial park cemetery shall be set aside for
charity burial. For several years, the section of the Ordinance was
not enforced by city authorities but seven years after the enactment
of the ordinance, the Quezon City Council passed the a resolution
directing the City Engineer to stop selling memorial park lots where
the owners thereof have failed to donate the required 6% space for
pauper burial.
Respondent reacted by filing with the CFI a petition for
declaratory relief, prohibition and mandamus with preliminary
injunction seeking to annul Section 9 of the Ordinance in question
The respondent alleged that the same is contrary to the Constitution,
the Quezon City Charter, the Local Autonomy Act, and the Revised
Administrative Code. The Court declared the Section 9 null and void.
Petitioners argue that the taking of the respondent's property
is a valid and reasonable exercise of police power and that the land
is taken for a public use as it is intended for the burial ground of
paupers. They further argue that the Quezon City Council is
authorized under its charter, in the exercise of local police power. On
the other hand, respondent contends that the taking or confiscation
of property is obvious because the ordinance permanently restricts
the use of the property such that it cannot be used for any reasonable
purpose and deprives the owner of all beneficial use of his property.
Issue: WON Section 9 of the ordinance in question a
valid exercise of the police power
Held: No
Ratio: An examination of the Charter of Quezon City does not
reveal any provision that would justify the ordinance in question
except the provision granting police power to the City. The power to
regulate does not include the power to prohibit (. A fortiori, the power
to regulate does not include the power to confiscate. The ordinance
in question not only confiscates but also prohibits the operation of a
memorial park cemetery.
There are three inherent powers of government by which the
state interferes with the property rights, namely-. (1) police power,
(2) eminent Constitution as necessary attributes of sovereignty.
Police power is defined by Freund as 'the power of promoting
the public welfare by restraining and regulating the use of liberty and
property'. It is usually exerted in order to merely regulate the use
and enjoyment of property of the owner. If he is deprived of his
property outright, it is not taken for public use but rather to destroy
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in order to promote the general welfare. In police power, the owner
does not recover from the government for injury sustained in
consequence thereof. The police power being the most active power
of the government and the due process clause being the broadest
station on governmental power, the conflict between this power of
government and the due process clause of the Constitution is
oftentimes inevitable.
It will be seen from the foregoing authorities that police power
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is usually exercised in the form of mere regulation or restriction in
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the use of liberty or property for the promotion of the general welfare.
It does not involve the taking or confiscation of property with the
exception of a few cases where there is a necessity to confiscate
private property in order to destroy it for the purpose of protecting
the peace and order and of promoting the general welfare as for
instance, the confiscation of an illegally possessed article, such as
opium and firearms.
It seems to the court that Section 9 of Ordinance No. 6118,
Series of 1964 of Quezon City is not a mere police regulation but an
outright confiscation. It deprives a person of his private property
without due process of law, nay, even without compensation.
There is no reasonable relation between the setting aside of at
least six (6) percent of the total area of an private cemeteries for
charity burial grounds of deceased paupers and the promotion of
health, morals, good order, safety, or the general welfare of the
people. The ordinance is actually a taking without compensation of a
certain area from a private cemetery to benefit paupers who are
charges of the municipal corporation. Instead of building or
maintaining a public cemetery for this purpose, the city passes the
burden to private cemeteries.
The expropriation without compensation of a portion of private
cemeteries is not covered by Section 12(t) of the Revised Charter of
Quezon City which empowers the city council to prohibit the burial of
the dead within the center of population of the city and to provide for
their burial in a proper place subject to the provisions of general law
regulating burial grounds and cemeteries. When the Local
Government Code, Batas Pambansa Blg. 337 provides in Section 177
(q) that a Sangguniang panlungsod may "provide for the burial of the
dead in such place and in such manner as prescribed by law or
ordinance" it simply authorizes the city to provide its own city owned
land or to buy or expropriate private properties to construct public
cemeteries. This has been the law and practise in the past. It
continues to the present. Expropriation, however, requires payment
of just compensation. The questioned ordinance is different from laws
and regulations requiring owners of subdivisions to set aside certain
areas for streets, parks, playgrounds, and other public facilities from
the land they sell to buyers of subdivision lots. The necessities of
public safety, health, and convenience are very clear from said
requirements which are intended to insure the development of
communities with salubrious and wholesome environments. The
beneficiaries of the regulation, in turn, are made to pay by the
subdivision developer when individual lots are sold to home-owners.
As a matter of fact, the petitioners rely solely on the general
welfare clause or on implied powers of the municipal corporation, not
on any express provision of law as statutory basis of their exercise of
power. The clause has always received broad and liberal
interpretation but we cannot stretch it to cover this particular taking.
Moreover, the questioned ordinance was passed after Himlayang
Pilipino, Inc. had incorporated. received necessary licenses and
permits and commenced operating. The sequestration of six percent
of the cemetery cannot even be considered as having been impliedly
acknowledged by the private respondent when it accepted the
permits to commence operations.
Republic v. PLDT 25 SCRA 620
Facts: The plaintiff Republic of the Philippines is a political entity
exercising government powers through one of its branches, the
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Bureau of Telecommunication. Herein defendant, PLDT is a public
service corporation holding a franchise to install operates and
maintains a telephone system. After its creation, the BOT set up its
own government telephone system by utilizing its own appropriations
and other equipment and by renting trunk lines of the PLDT to enable
the govt offices to call privately. BOT entered into an agreement with
the RCA communications for joint overseas telephone service
whereby BOT would convey overseas calls received by RCA to local
residents. PLDT complained to the BOT that it was a violation of the
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condition of their agreement since the BOT had used trunk lines only
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for the use of government offices but even to serve private persons
or the general public in competition with the business of PLDT.
Subsequently, the plaintiff commenced suit against PLDT asking the
court judgment be rendered ordering the PLDT to execute a contract
with the plaintiff, through the BOT for the use of the facilities of
PLDT's telephone system throughout the country under such
conditions as the court may consider reasonable. The CFI rendered
judgment stating that it could not compel PLDT to enter into such
agreement. Hence this petition.
Issue: (1) Whether or not interconnection between PLDT and
the Government Telephone System can be a valid object for
expropriation.
(2) Whether or Not PLDT may be compelled to enter into such
agreement.
Held: (1) Yes, in the exercise of the sovereign power of eminent
domain, the Republic may require the telephone company to permit
interconnection as the needs of the government service may require,
subject to the payment of just compensation. The use of lines and
services to allow inter-service connection between the both
telephone systems, through expropriation can be a subject to an
easement of right of way.
(2) Yes, the state, may, in the interest of national welfare transfer
utilities to public ownership upon payment of just compensation,
there is no reason why the state ma not require a public utility to
render services in the general interest provided just compensation is
paid.
In RP v. PLDT, the SC ruled that "Normally, the power of
eminent domain results in the taking or appropriation of the title to,
and possession of, the expropriated property, but no cogent reason
appears why said power may not be availed of to impose only a
burden upon the owner of the condemned property, without loss of
title or possession. It is unquestionable that real property may,
through expropriation, be subjected to an easement of right of way."
POLICE POWER
NCC
Article 436. When any property is condemned or seized by
competent authority in the interest of health, safety or security, the
owner thereof shall not be entitled to compensation, unless he can
show that such condemnation or seizure is unjustified.
LGC
Section 20. Reclassification of Lands. -
(a) A city or municipality may, through an ordinance passed by the
sanggunian after conducting public hearings for the purpose,
authorize the reclassification of agricultural lands and provide for the
manner of their utilization or disposition in the following cases: (1)
when the land ceases to be economically feasible and sound for
agricultural purposes as determined by the Department of Agriculture
or (2) where the land shall have substantially greater economic value
for residential, commercial, or industrial purposes, as determined by
the sanggunian concerned: Provided, That such reclassification shall
be limited to the following percentage of the total agricultural land
area at the time of the passage of the ordinance:
(1) For highly urbanized and independent component cities,
fifteen percent (15%);
(2) For component cities and first to the third class
municipalities, ten percent (10%); and
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(3) For fourth to sixth class municipalities, five percent (5%):
Provided, further, That agricultural lands distributed to agrarian
reform beneficiaries pursuant to Republic Act Numbered Sixty-six
hundred fifty-seven (R.A. No. 6657). otherwise known as "The
Comprehensive Agrarian Reform Law", shall not be affected by the
said reclassification and the conversion of such lands into other
purposes shall be governed by Section 65 of said Act.
(b) The President may, when public interest so requires and upon
recommendation of the National Economic and Development
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Authority, authorize a city or municipality to reclassify lands in excess
of the limits set in the next preceding paragraph.
(c) The local government units shall, in conformity with existing laws,
continue to prepare their respective comprehensive land use plans
enacted through zoning ordinances which shall be the primary and
dominant bases for the future use of land resources: Provided. That
the requirements for food production, human settlements, and
industrial expansion shall be taken into consideration in the
preparation of such plans.
(d) Where approval by a national agency is required for
reclassification, such approval shall not be unreasonably withheld.
Failure to act on a proper and complete application for reclassification
within three (3) months from receipt of the same shall be deemed as
approval thereof.
(e) Nothing in this Section shall be construed as repealing, amending,
or modifying in any manner the provisions of R.A. No. 6657.
Section 447.a.4. Powers, Duties, Functions and Compensation. -
(a) The sangguniang bayan, as the legislative body of the
municipality, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the municipality and its
inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the municipality as provided for
under Section 22 of this Code, and shall:
(4) Regulate activities relative to the use of land, buildings and
structures within the municipality in order to promote the general
welfare and for said purpose shall:
(i) Declare, prevent or abate any nuisance;
(ii) Require that buildings and the premises thereof and
any land within the municipality be kept and maintained in a
sanitary condition; impose penalties for any violation thereof,
or upon failure to comply with said requirement, have the work
done and require the owner, administrator or tenant concerned
to pay the expenses of the same; or require the filling up of
any land or premises to a grade necessary for proper
sanitation;
(iii) Regulate the disposal of clinical and other wastes
from hospitals, clinics and other similar establishments;
(iv) Regulate the establishment, operation and
maintenance of cafes, restaurants, beerhouses, hotels, motels,
inns, pension houses, lodging houses, and other similar
establishments, including tourist guides and transports;
(v) Regulate the sale, giving away or dispensing of any
intoxicating malt, vino, mixed or fermented liquors at any retail
outlet;
(vi) Regulate the establishment and provide for the
inspection of steam boilers or any heating device in buildings
and the storage of inflammable and highly combustible
materials within the municipality;
(vii) Regulate the establishment, operation, and
maintenance of entertainment or amusement facilities,
including theatrical performances, circuses, billiards pools,
public dancing schools, public dance halls, sauna baths,
massage parlors, and other places of entertainment or
amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants, or require the
suspension or suppression of the same; or, prohibit certain
forms of amusement or entertainment in order to protect the
social and moral welfare of the community;
(viii) Provide for the impounding of stray animals;
regulate the keeping of animals in homes or as part of a
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business, and the slaughter, sale or disposition of the same;
and adopt measures to prevent and penalize cruelty to
animals; and
(ix) Regulate the establishment, operation, and
maintenance of funeral parlors and the burial or cremation of
the dead, subject to existing laws, rules and regulations.
Section 458.a.4. Powers, Duties, Functions and Compensation.
(a) The sangguniang panlungsod, as the legislative body of the city,
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shall enact ordinances, approve resolutions and appropriate funds for
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the general welfare of the city and its inhabitants pursuant to Section
16 of this Code and in the proper exercise of the corporate powers of
the city as provided for under Section 22 of this Code, and shall:
(4) Regulate activities relative to the use of land, buildings and
structures within the city in order to promote the general welfare and
for said purpose shall:
(i) Declare, prevent or abate any nuisance;
(ii) Require that buildings and the premises thereof and
any land within the city be kept and maintained in a sanitary
condition; impose penalties for any violation thereof; or, upon
failure to comply with said requirement, have the work done at
the expense of the owner, administrator or tenant concerned;
or require the filling up of any land or premises to a grade
necessary for proper sanitation;
(iii) Regulate the disposal of clinical and other wastes
from hospitals, clinics and other similar establishments;
(iv) Regulate the establishment, operation and
maintenance of cafes, restaurants, beerhouses, hotels, motels,
inns, pension houses, lodging houses, and other similar
establishments, including tourist guides and transports;
(v) Regulate the sale, giving away or dispensing of any
intoxicating malt, vino, mixed or fermented liquors at any retail
outlet;
(vi) Regulate the establishment and provide for the
inspection of steam boilers or any heating device in buildings
and the storage of inflammable and highly combustible
materials within the city;
(vii) Regulate the establishment, operation, and
maintenance of any entertainment or amusement facilities,
including theatrical performances, circuses, billiard pools,
public dancing schools, public dance halls, sauna baths,
massage parlors, and other places for entertainment or
amusement; regulate such other events or activities for
amusement or entertainment, particularly those which tend to
disturb the community or annoy the inhabitants, or require the
suspension or suppression of the same; or, prohibit certain
forms of amusement or entertainment in order to protect the
social and moral welfare of the community;
(viii) Provide for the impounding of stray animals;
regulate the keeping of animals in homes or as part of a
business, and the slaughter, sale or disposition of the same;
and adopt measures to prevent and penalize cruelty to
animals; and
(ix) Regulate the establishment, operation and
maintenance of funeral parlors and the burial or cremation of
the dead, subject to existing laws, rules and regulations.
Section 468.a.2.vi. Powers, Duties, Functions and Compensation.
(a) The sangguniang panlalawigan, as the legislative body of the
province, shall enact ordinances, approve resolutions and
appropriate funds for the general welfare of the province and its
inhabitants pursuant to Section 16 of this Code in the proper exercise
of the corporate powers of the province as provided for under Section
22 of this Code, and shall:
(2) Generate and maximize the use of resources and revenues
for the development plans, program objectives and priorities of the
province as provided for under Section 18 of this Code, with particular
attention to agro-industrial development and country-wide growth
and progress and relative thereto, shall:
(vi) Prescribe reasonable limits and restraints on the use
of property within the jurisdiction of the province;
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Churchill and Trait v Rafferty, 32 PHIL 580
FACTS: The judgment appealed from in this case perpetually
restrains and prohibits the defendant and his deputies from collecting
and enforcing against the plaintiffs and their property the annual tax
mentioned and described in subsection (b) of section 100 of Act No.
2339, effective July 1, 1914, and from destroying or removing any
sign, signboard, or billboard, the property of the plaintiffs, for the
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sole reason that such sign, signboard, or billboard is, or may be,
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offensive to the sight; and decrees the cancellation of the bond given
by the plaintiffs to secure the issuance of the preliminary injunction
granted soon after the commencement of this action.
ISSUE: Whether or not a provision in the internal revenue law
prohibiting the courts from enjoining the collection of an
internal revenue tax is invalid
RULING: NO. A provision in an internal revenue law prohibiting the
courts from enjoining the collection for an internal revenue tax is not
invalid as opposed to the due process and equal protection of the law
clauses of the bill of rights of the Organic Act. Such legislation has
been upheld by the United States Supreme Court Nor is such a
provision of law invalid as curtailing the jurisdiction of the courts of
the Philippine Islands as fixed by section 9 of the Organic Act; a)
because jurisdiction was never conferred upon Philippine courts to
enjoin the collection of taxes imposed by the Philippine Commission;
and b) because, in the present case, another adequate remedy has
been provided by payment and protest.
Taxicab Operators v Board of Transportation 119 SCRA 597
FACTS: To insure that only safe and comfortable units are used as
public conveyances and in order that the commuting public may be
assured of comfort, convenience, and safety, the Board of
Transportation (BOT) issued Memorandum Circular phasing out the
old and dilapidated taxis. Pursuant to OT circular, respondent
Director of the Bureau of Land Transportation (BLT) issued
Implementing Circular formulating a schedule of phase-out of
vehicles to be allowed and accepted for registration as public
conveyances. The Taxicab Operators of Metro Manila, Inc., Felicisimo
Cabigao and Ace Transportation filed a petition for "Certiorari,
Prohibition and mandamus with Preliminary Injunction and
Temporary Restraining Order", to declare the nullity of Memorandum
Circular of the BOT and Memorandum Circular of the BLT.
Petitioners who are taxicab operators assail the
constitutionality of Memorandum Circular No. 77-42 issued by the
Board of Transportation (BOT) providing for the phasing out and
replacement of old and dilapidated taxicabs; as well as Implementing
Circular No. 52 issued pursuant thereto by the Bureau of Land
Transportation (BLT) instructing personnel of the BLT within the
National Capital Region to implement the said BOT Circular, and
formulating a schedule of phase-out of vehicles to be allowed and
accepted for registration as public conveyances.
Petitioners allege that the questioned Circulars did not afford
them procedural and substantive due process, equal protection of the
law, and protection against arbitrary and unreasonable classification
and standard. Among others, they question the issuance of the
Circulars without first calling them to a conference or requiring them
to submit position papers or other documents enforceability thereof
only in Metro Manila; and their being applicable only to taxicabs and
not to other transportation services.
ISSUES: Whether or not the implementation and enforcement
of the assailed memorandum circulars violate the petitioners'
constitutional rights to (1) Equal protection of the law; (2)
Substantive due process; and (3) Protection against arbitrary
and unreasonable classification and standard.
HELD: On Procedural and Substantive Due Process: Petitioners
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cannot justifiably claim that they were deprived of procedural due
process. Neither can they state with certainty that public respondents
had not availed of other sources of inquiry prior to issuing the
challenged Circulars for the Board gave a wide range of choice in
gathering necessary information or data in the formulation of any
policy, plan or program. It is not mandatory that it should first call a
conference or require the submission of position papers or other
documents from operators or persons who may be affected, this
being only one of the options open to the Board, which is given wide
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discretionary authority. Furthermore, as public contend it is
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impractical to subject every taxicab to constant and recurring
evaluation, not to speak of the fact that it can open the door to the
adoption of multiple standards, possible collusion, and even graft and
corruption. A reasonable standard must be adopted to apply to a
vehicles affected uniformly, fairly, and justly. The span of six years
supplies that reasonable standard. The product of experience shows
that by that time taxis have fully depreciated, their cost recovered,
and a fair return on investment obtained. They are also generally
dilapidated and no longer fit for safe and comfortable service to the
public specially considering that they are in continuous operation
practically 24 hours every day in three shifts of eight hours per shift.
With that standard of reasonableness and absence of arbitrariness,
the requirement of due process has been met.
On Equal Protection of the Law: The law being enforced in
Metro Manila only and was directed solely towards the taxi industry
does not violate their right to equal protection of the law for the traffic
conditions are not the same in every city, a substantial distinction
exists so that infringement of the equal protection clause can hardly
be successfully claimed. The State, in the exercise, of its police
power, can prescribe regulations to promote the health, morals,
peace, good order, safety and general welfare of the people. It can
prohibit all things hurtful to comfort, safety and welfare of society. It
may also regulate property rights. In the language of Chief Justice
Enrique M. Fernando "the necessities imposed by public welfare may
justify the exercise of governmental authority to regulate even if
thereby certain groups may plausibly assert that their interests are
disregarded".
In so far as the non-application of the assailed Circulars to
other transportation services is concerned, it need only be recalled
that the equal protection clause does not imply that the same
treatment be accorded all and sundry. It applies to things or persons
identically or similarly situated. It permits of classification of the
object or subject of the law provided classification is reasonable or
based on substantial distinction, which make for real differences, and
that it must apply equally to each member of the class. What is
required under the equal protection clause is the uniform operation
by legal means so that all persons under identical or similar
circumstance would be accorded the same treatment both in privilege
conferred and the liabilities imposed. The challenged Circulars satisfy
the foregoing criteria.
Evident then is the conclusion that the questioned Circulars do
not suffer from any constitutional infirmity. To declare a law
unconstitutional, the infringement of constitutional right must be
clear, categorical and undeniable. Hence, the Writs prayed for are
denied and was dismissed.
NECESSITY
NCC
Article 432. The owner of a thing has no right to prohibit the
interference of another with the same, if the interference is necessary
to avert an imminent danger and the threatened damage, compared
to the damage arising to the owner from the interference, is much
greater. The owner may demand from the person benefited
indemnity for the damage to him.
SIC UTTER TOO AT ALIEN NON LEADS
NCC
Article 431. The owner of a thing cannot make use thereof in such
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manner as to injure the rights of a third person.
NUISANCE
Defintion
NCC
Article 694. A nuisance is any act, omission, establishment,
business, condition of property, or anything else which:
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(1) Injures or endangers the health or safety of others; or
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(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public
highway or street, or any body of water; or
(5) Hinders or impairs the use of property.
Article 682. 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 683. 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.
Classification
NCC
Article 695. Nuisance is either public or private. A public nuisance
affects a community or neighborhood or any considerable number of
persons, although the extent of the annoyance, danger or damage
upon individuals may be unequal. A private nuisance is one that is
not included in the foregoing definition.
Remedies
NCC
Article 696. Every successive owner or possessor of property who
fails or refuses to abate a nuisance in that property started by a
former owner or possessor is liable therefor in the same manner as
the one who created it.
Article 697. The abatement of a nuisance does not preclude the right
of any person injured to recover damages for its past existence.
Article 698. Lapse of time cannot legalize any nuisance, whether
public or private.
Article 699. The remedies against a public nuisance are:
(1) A prosecution under the Penal Code or any local ordinance:
or
(2) A civil action; or
(3) Abatement, without judicial proceedings.
Article 700. The district health officer shall take care that one or all
of the remedies against public nuisance are availed of.
Article 701. If a civil action is brought by reason of the maintenance
of a public nuisance, such action shall be commenced by the city or
municipal mayor.
Article 702. The district health officer shall determine whether or
not abatement, without judicial proceedings, is the best remedy
against a public nuisance.
Article 703. A private person may file an action on account of a
public nuisance, if it is specially injurious to himself.
Article 704. Any private person may abate a public nuisance which
is specially injurious to him by removing, or if necessary, by
destroying the thing which constitutes the same, without committing
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a breach of the peace, or doing unnecessary injury. But it is
necessary:
(1) That demand be first made upon the owner or possessor of
the property to abate the nuisance;
(2) That such demand has been rejected;
(3) That the abatement be approved by the district health
officer and executed with the assistance of the local police; and
(4) That the value of the destruction does not exceed three
thousand pesos.
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 PROPERTY - FINALS
Article 705. The remedies against a private nuisance are:
(1) A civil action; or
(2) Abatement, without judicial proceedings.
Article 706. Any person injured by a private nuisance may abate it
by removing, or if necessary, by destroying the thing which
constitutes the nuisance, without committing a breach of the peace
or doing unnecessary injury. However, it is indispensable that the
procedure for extrajudicial abatement of a public nuisance by a
private person be followed.
Article 707. A private person or a public official extrajudicially
abating a nuisance shall be liable for damages:
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared by the courts to be
not a real nuisance.
Iloilo Cold Storage v. Municipal Council, 24 Phil 471
Facts: According to the pleadings, the plaintiff, upon authority
granted by the defendant, constructed an ice and cold storage plant
in the city of Iloilo. Sometime after the plant had been completed and
was in operation, nearby residents made complaints to the defendant
that the smoke from the plant was very injurious to their health and
comfort. Thereupon the defendant appointed a committee to
investigate and report upon the matters contained in said complaints.
The committee reported that the complaints were well-founded.
Upon receipt of this resolution and order, the plaintiff
commenced this action in the Court of First Instance to enjoin the
defendant from carrying into effect the said resolution. “That the
defendants intend and threaten to require compliance with said
resolution administratively and without the intervention of the court,
and by force to compel the closing and suspension of operations of
the plaintiff’s machinery and consequently of the entire plant, should
the plaintiff not proceed with the elevation of the smokestacks to one
hundred feet, which the plaintiff maintains it is not obliged to do and
will not do.”
Issue: The issue in this case, according to the pleadings,
relates to the power of the municipal council to declare the
plant of the petitioner a nuisance as operated, and the method
of abating it.
Doctrine and Held: Nuisances have been divided into two classes:
Nuisances per se, and nuisances per accidens. To the first belong
those which are unquestionably and under all circumstances
nuisances, such as gambling houses, houses of ill fame, etc. The
number of such nuisances is necessarily limited, and by far the
greater number of nuisances are such because of particular facts and
circumstances surrounding the otherwise harmless cause of the
nuisance. For this reason, it will readily be seen that whether a
particular thing is a nuisance is generally a question of fact, to be
determined in the first instance before the term nuisance can be
applied to it.
“I repeat that the question of nuisance can conclusively be
decided, for all legal uses, by the established courts of law or equity
alone, and that the resolutions of officers, or of boards organized by
force of municipal charters, cannot, to any degree, control such
decision.”
10 AbInitio| 2Exec DVOREF
But the mere declaration by the city council of Milwaukee that
a certain structure was an encroachment or obstruction did not make
structure was an encroachment or obstruction did not make it so, nor
could such declaration make it a nuisance unless it in fact had that
character. It is a doctrine not to be tolerated in this country, that a
municipal corporation, without any general laws either of the city or
of the State, within which a given structure can be shown to be a
nuisance, can, by its mere declaration that it is one, subject it to
removal by any person supposed to be aggrieved, or even by the city
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itself.
 PROPERTY - FINALS
In our opinion this ordinance cannot be sustained as a
legitimate exercise of municipal power. The character of the city
confers upon it the power to prevent and restrain nuisances, and to
“declare what shall constitute a nuisance;” but this does not authorize
it to declare a particular use of property a nuisance, unless such use
comes within the common law or statutory idea of a nuisance.
It is clear that municipal councils have, under the code, the
power to declare and abate nuisances, but it is equally clear that they
do not have the power to find as a fact that a particular thing is a
nuisance when such thing is not a nuisance per se; nor can they
authorize the extrajudicial condemnation and destruction of that as
a nuisance which in its nature, situation, or use is not such. These
things must be determined in the ordinary courts of law.
In the present case it is certain that the ice factory of the
plaintiff is not a nuisance per se. It is a legitimate industry, beneficial
to the people, and conducive to their health and comfort. If it be in
fact a nuisance due to the manner of its operation, that question
cannot be determined by a mere resolution of the board. The
petitioner is entitled to a fair and impartial hearing before a judicial
tribunal.
Monteverde v. Generoso, 52 Phil 123
FACTS: Tomas Monteverde is the owner of a parcel of land situated
in the barrio of Santa Ana, municipality of Davao, Province of Davao.
He possesses a Torrens title to the land obtained in 1921.
The parcel of land is bounded on the northwest by the Agdao
River. The Tambongon Creek is a branch of the Agdao River and Runs
through Monteverde's land. For fishpond purposes, Monteverde
constructed two dams across the Agdao River and five dams across
the Tambongon Creek. The two dams in the Agdao River were
destroyed by order of the district engineer of Davao. The Provincial
governor of Davao also threatened to destroy the other dams in the
Tambongon Creek. The motive behind the destruction of the dams in
the Agdao River and the proposed destruction of the dams in the
Tambongon Creek was to safeguard the public health.
To prevent the contemplated action with reference to the
Tambongon Creek, Monteverde sought in the Court of First Instance
of Davao to obtain an order of injunction in restraint of the provincial
governor, the district engineer, and the district health officer, but in
this attempt Monteverde was unsuccessful in the lower court.
ISSUE: WON a provincial governor, a district engineer, or a
district health officer authorized to destroy private property
consisting of dams and fishponds summarily and without any
judicial proceedings whatever under the pretense that such
private property constitutes a nuisance?
HELD: No. As to article 24 of the Spanish Law of Waters of 1866, it
provides:
"Any person may, upon his own private property, construct
artificial ponds of sea water, having communication with the sea, for
use as bathing places or vivaries, or for any other commercial or
recreative purpose, notice thereof being given to the governor of the
province. During two months, the governor shall have power to order
11 AbInitio| 2Exec DVOREF
the suspension of the work if, after consultation with the naval officer
in command and the provincial engineer, it appear that the work
might be substantially prejudicial to the public interests. In such an
event the interested party may appeal to the Government." But as to
the applicability of this article, it necessarily would have to conform
to the principles of the existing public law.
Of course, a dam or a fishpond may be found to be a nuisance
where it endangers or impairs the health or depreciates property by
causing water to become stagnant. The public health may be
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conserved but conserved only in a legal manner. Due process of law
 PROPERTY - FINALS
must be observed before the citizens' property or personal rights or
liberty can be interfered with. Conceding without deciding that article
24 of the Law of Waters is in force, we reiterate that it can only be
made use of by conforming to the provisions of the organic law.
The court recognized the legislative power to regulate fishing
in public waters, and the right of summary abatement of nuisances
without judicial process or proceeding for the protection of the
health; but said the court: "In the process of abating a nuisance there
are limitations both in respect of the agencies which may be
employed, and as to what may be done in execution of the remedy.
In contrast with Lawton vs. Steele, supra, (1) there is no law
authorizing the summary abatement of nuisances by the provincial
governor; and (2) the dams and fishponds are not of trifling value.
The question at issue is answered in the negative.
Hidalgo v. Balandan, 91 Phil 489
FACTS: Hidalgo Enterprises, Inc. was the owner of an ice-plant
factory in the City of San Pablo, Laguna, in whose premises were
installed two tanks full of water, nine feet deep, for cooling purposes
of its engine.
While the factory compound was surrounded with fence, the
tanks themselves were not provided with any kind of fence or top
covers. The edges of the tanks were barely a foot high from the
surface of the ground. Through the wide gate entrance, which is
continually open, motor vehicles hauling ice and persons buying said
commodity passed, and any one could easily enter the said factory,
as he pleased. There was no guard assigned on the gate.
At about noon of April 16, 1948, plaintiff's son, Mario Balandan,
a boy barely 8 years old, while playing with and in company of other
boys of his age entered the factory premises through the gate, to
take a bath in one of said tanks; and while thus bathing, Mario sank
to the bottom of the tank, only to be fished out later, already a
cadaver, having been died of "asphyxia secondary to drowning."
ISSUE: WON Hidalgo Enterprises, Inc. liable to pay Guillermo
Balandan and his wife for the death of their son Mario
Baladan.
HELD: No. The attractive nuisance doctrine generally is not
applicable to bodies of water, artificial as well as natural, in the
absence of some unusual condition or artificial feature other than the
mere water and its location.
The reason why a swimming pool or pond or reservoir of water
is not considered an attractive nuisance was lucidly explained by the
Indiana Appellate Court as follows:
Nature has created streams, lakes and pools which attract
children. Lurking in their waters is always the danger of drowning.
Against this danger children are early instructed so that they are
sufficiently presumed to know the danger; and if the owner of private
property creates an artificial pool on his own property, merely
duplicating the work of nature without adding any new danger, . . .
(he) is not liable because of having created an "attractive nuisance."
Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 112 Ind.
App., 170.
12 AbInitio| 2Exec DVOREF
Therefore, as petitioner's tanks are not classified as attractive
nuisance, the question whether the petitioner had taken reasonable
precautions becomes immaterial. And the other issue submitted by
petitioner — that the parents of the boy were guilty of contributory
negligence precluding recovery, because they left for Manila on that
unlucky day leaving their son under the care of no responsible
individual — needs no further discussion.
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 PROPERTY - FINALS
Sitchon v. Aquino, 98 Phil 458
FACTS: This decision stems from six (6) different suits. All of the
petitioners implead Aquino (the City Engineer of Manila) as
respondent so that he may be enjoined from causing the demolition
of their respective houses situated in different areas along public
streets in Manila inasmuch as these constitute public nuisances. All
of the petitioners occupied the subject parcels of land initially entirely
without consent. However, all of them subsequently paid concession
fees or damages for the use of the land with the agreement that such
payment and consent shall be without prejudice to an order to
vacate. The time came when the City Engineer demanded that
petitioners vacate the occupied streets. Unheeded, he threatened to
demolish the houses.
Petitioners contend that by virtue of arts. 700 and 702, the
power to remove public nuisances is vested in the District Health
Officer, not in the City Engineer.
ISSUES: Is there a public nuisance? Does the City Engineer
have authority to cause the abatement of the nuisance?
HELD: There is a public nuisance. This case falls on art. 694 par. 4,
classifying as a nuisance the obstruction of free passage of any public
highway or street. It is public because it affects a community or
neighbourhood. The constructions in fact constitute nuisances per se,
obstructing at all times the streets. As such, the summary removal
of these may be authorized by statute or ordinance.
Aquino, as City Engineer, is vested with authority to effect the
abatement of the nuisances through demolition. By virtue of the
Revised Charter of Manila, such duty, among others, was placed upon
him. Arts. 700 and 702 must yield to this provision not only because
it is later law but also because of the principle that special provisions
prevail over general ones. Moreover, an ordinance authorized the
action sought to be taken by respondent.
Velasco v. Manila Electric Co., 40 SCRA 342
FACTS: Pedro J. Velasco, the appellant, complained that MERALCO,
the appellee company, created a nuisance, as defined in Art. 694 of
the Civil Code of the Philippines, in form of noise from their substation
which was in the same street, next to Velasco’s property/residence,
which the appellant also uses for his Medical Practice as a physician.
The claim cannot be proven solely by testimony however, as the
testimonies given by the locals do not corroborate with each other,
or were subjective. To get a more accurate proof, under instructions
from the Director of Health, Dr. Jesus Almonte, noted as an impartial
party, used a sound level meter and other instruments within the
compound of the plaintiff-appellant to get a reading on the decibels
or sound meter. It was observed that the readings range from 46-80
decibels, depending on the time and place. The appellee company
also took sound level samplings, with Mamerto Buenafe conducting
the reading within and near the vicinity of the substation, whose
readings range from 42-76 decibels. The readings were compared to
Technical charts, which listed the decibels of areas from an average
home: 40, to the noisiest spot of Niagara Falls: 92. Thus, the readings
from the impartial party appeared more reliable. The court concluded
that the evidence pointed the noise levels to be of actionable
nuisance, and that the appellant is entitled to relief, as there was a
possibility that it had effect on the appellant’s health.
13 AbInitio| 2Exec DVOREF
Appellee company contended that the appellant should not
have a ground to complain because of:
1) the intensity inside Velasco’s house was on 46 to 47
decibels;
2) the sound level at the North General Hospital, where
silence was observed, was higher that his residence and did not
take action;
3) MERALCO had received no complaint in its 50 years of
operations until the case.
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 PROPERTY - FINALS
ISSUES: Whether or not the substation constituted a public
nuisance. Whether or not Velasco had the right to claim for
damages.
HELD: The court held that the substation constituted a public
nuisance in form of noise, of which they made reference and
consideration with cases in the U.S. regarding what level of noise
would constitute as public nuisance as defined in Art. 694 of the Civil
Code of the Philippines.
The court also contended that the damage claims by the
plaintiff-appellant was exaggerated, taking into consideration that
1) the appellant did not make all the possible measures, for
example to perhaps lease the property to others,
2) as for his health, it was observed that only Velasco, among
the other locals seem to have the ailments as he listed, and therefore
lowered it to a more justifiable amount of 20,000 pesos in damages
and 5,000 pesos in attorney’s fees, payable by the appellee. They
also ordered that the appellee should take measures in lowering the
noise within 90 days.
Farrales v. City Mayor of Baguio, 44 SCRA 239
FACTS: Plaintiff was the holder of a municipal license to sell liquor
and sari-sari goods. When the temporary building where she had her
stall was demolished in order that the city might construct a
permanent building, Plaintiff was ordered to move her goods to
another temporary place until the permanent building was
completed. She did not like the location pointed out by city officials
where she could install her temporary stall. Instead, taking the law
into her own hands, Plaintiff built a temporary shack at one end of
the Rice Section, Baguio City Market without seeking prior permit or
permission from any city official.
The police demolished the shack, brought the materials and
goods to the City Hall and subsequently delivered both materials and
goods to Plaintiff
ISSUE: WON the demolition of the shack was in order.
HELD: Yes. There is no doubt Plaintiff had not permit to build the
shack and this shack was built in the passageway where people pass
when going to the hangar market building. Plaintiff insists that the
proper procedure should have been for either the City Engineer or
the City Health Officer to commence legal proceedings for the
abatement of this "nuisance". This Court believes that the police
officers properly demolished the shack for it had been built in
defiance of orders from City Hall officials.
This Court believes that they could clear the passageway on
their own responsibility, just like they can push a car that is parked
in the wrong place without waiting for court proceedings.
The appellant's contention is that the shack or temporary stall
put up by her inside the premises of the Baguio City Market was not
a nuisance or if it was a nuisance at all it was one per accidens and
not per se and therefore could be abated only after the corresponding
judicial proceeding.
14 AbInitio| 2Exec DVOREF
According to Article 707 of the same Code, a public official
extrajudicially abating a nuisance shall be liable for damages in only
two cases: (1) if he causes unnecessary injury, or (2) if an alleged
nuisance is later declared by the courts to be not a real nuisance.
Here no unnecessary injury was caused to the appellant, and
not only was there no judicial declaration that the alleged nuisance
was not really so but the trial court found that it was in fact a
nuisance. Indeed it may be said that the abatement thereof was not
summary, but through a judicial proceeding.
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 PROPERTY - FINALS
*Timoner v. People, 125 SCRA 830
FACTS: At about 10:00 in the evening of December 13, 1971,
petitioner, then Mayor of Daet, Camarines Norte, accompanied by
two uniformed policemen and six laborers, arrived in front of the
stalls along Maharlika highway, the main thoroughfare of the same
town. Upon orders of petitioner, these laborers proceeded to nail
together rough lumber slabs to fence off the stalls which protruded
into the sidewalk of the Maharlika highway. Among the structures
thus barricaded were the barbershop of Pascual Dayaon, the
complaining witness and the store belonging to one Lourdes Pia-
Rebustillos. These establishments had been recommended for
closure by the Municipal Health Officer, Dra. Alegre, for non-
compliance with certain health and sanitation requirements.
Thereafter, petitioner filed a complaint in the CFI of Camarines
Norte against Lourdes Pia-Rebustillos and others for judicial
abatement of their stalls. The complaint, docketed as Civil Case No.
2257, alleged that these stalls constituted public nuisances as well as
nuisances per se. Dayaon was never able to reopen his barbershop
business.
ISSUE: WON sealing off of complainant Dayaon's barbershop
was done in abatement of a public nuisance and, therefore,
under lawful authority.
HELD: Yes. Unquestionably, the barbershop in question did
constitute a public nuisance as defined under Article Nos. 694 and
695 of the Civil Code, to wit:
ART. 694. A nuisance is any act, omission, establishment,
business, condition of property, or anything else which:
(1) Injures or endangers the health or safety of others; or
(2) Annoys or offends the senses; or
(3) Shocks, defies or disregards decency or morality; or
(4) Obstructs or interferes with the free passage of any public
highway or street, or any body of water; or
(5) Hinders or impairs the use of property.
ART. 695. Nuisance is either public or private. A public nuisance
affects a community or neighborhood or any considerable number of
persons, although the extent of the annoyance, danger or damage
upon individuals may be unequal A private nuisance is one that is not
included in the foregoing definition.
The barbershop occupied a portion of the sidewalk of the poblacion's
main thoroughfare and had been recommended for closure by the
Municipal Health Officer.
But even without this judicial pronouncement, petitioner could
not have been faulted for having fenced off said barbershop.
Paragraph 3, Article 699 of the Civil Code authorizes the abatement
of a public nuisance without judicial proceedings. têñ.£îhqwâ£
ART. 699. The remedies against a public nuisance are:
[l] A prosecution under the Penal Code or any local ordinance; or
[2] A civil action; or
[3] Abatement, without judicial proceedings.
In the case at bar, petitioner, as mayor of the town, merely
implemented the aforesaid recommendation of the Municipal Health
15 AbInitio| 2Exec DVOREF
Officer. Having then acted in good faith in the performance of his
duty, petitioner incurred no criminal liability.
*Estate of Gregorio Francisco v. Court of Appeals, 199 SCRA
595
FACTS: Litigated herein is a quonset building situated in Port Area,
Strong Boulevard, Isabela, Basilan, which was ordered demolished
by respondent Municipal Mayor, Benjamin Valencia. Respondent
municipal employees implemented the demolition, for which reason
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they are also impleaded.
 PROPERTY - FINALS
The quonset was constructed by the American Liberation
Forces in 1944. It was purchased in 1946 by Gregoria Francisco, who
died in 1976. It stands on a lot owned by the Philippine Ports
Authority and faces the municipal wharf. By virtue of Proclamation
No. 83 issued by President Elpidio Quirino, said land was declared for
the exclusive use of port facilities.
On 8 May 1989, Respondent Mayor, through respondent
Municipal Action Officer, notified Tan Gin San by mail to remove or
relocate its quonset building, citing Zoning Ordinance No. 147 of the
municipality; noting its antiquated and dilapidated structure; and.
stressing the "clean-up campaign on illegal squatters and unsanitary
surroundings along Strong Boulevard." This was followed by another
letter of 19 May 1989 of the same tenor.
Aggrieved, petitioner sought a Writ of Prohibition with
Injunction and Damages before the Regional Trial Court of Basilan,
Branch 2 (docketed as S.P. No. 4).
ISSUE: Whether or not Respondent Mayor could summarily,
without judicial process, order the demolition of petitioner's
quonset building.
HELD: No. Even granting that petitioner failed to apply for a
Certificate of Non-conformance, the foregoing provision should not
be interpreted as authorizing the summary removal of a non-
conforming building by the municipal government. For if it does, it
must be struck down for being in contravention of the requirements
of due process, as originally held by the respondent Court.
Violation of a municipal ordinance neither empowers the
Municipal Mayor to avail of extra-judicial remedies.1avvphi1 On the
contrary, the Local Government Code imposes upon him the duty "to
cause to be instituted judicial proceedings in connection with the
violation of ordinances" (Local Government Code, Sec. 141 [2] [t]).
Petitioner was in lawful possession of the lot and quonset
building by virtue of a permit from the Philippine Ports Authority (Port
of Zamboanga) when demolition was effected. It was not squatting
on public land. Its property was not of trifling value. It was entitled
to an impartial hearing before a tribunal authorized to decide whether
the quonset building did constitute a nuisance in law. There was no
compelling necessity for precipitate action. It follows then that
respondent public officials of the Municipality of Isabela, Basilan,
transcended their authority in abating summarily petitioner's quonset
building. They had deprived petitioner of its property without due
process of law.
*Tamin v. Court of Appeals, 208 SCRA 863
FACTS: Petitioner municipality represented by its mayor Real filed in
the RTC a complaint for the ejectment of respondents. It is alleged
that the municipality owns a parcel of residential land located in
Zamboanga del Sur and the said parcel of land was reserved for
public plaza under PD 365 and that during the mayor, the
municipality leased the area to the defendants subject to the
condition that they should vacate the place in case it is needed for
public purposes and the defendants paid the rentals religiously until
1967. They refused to vacate the said land despite the efforts of the
government since money is allocated for the construction of a
municipal gymnasium within the public plaza and such construction
16 AbInitio| 2Exec DVOREF
could not continue because of the presence of the buildings
constructed by the defendants.
ISSUE: Whether or not the municipality has a cause of action
for the abatement of public nuisance under Article 694 of the
Civil Code.
Held: Yes based on the definition of a nuisance provided for in the
CC which states that “Art. 694. A nuisance is any act, omission,
establishment, business, condition of property or anything else
Page
which: … hinders or impairs the use of the property.” Article 695.
 PROPERTY - FINALS
Nuisance is either public or private. A public nuisance affects a
community or neighborhood or any considerable number of persons,
although the extent of the annoyance, danger or damage upon
individuals may be equal.”
Article 699 provides for the following remedies against public
nuisance:
1. A prosecution under the penal code or any local ordinance
2. civil action
3. abatement without judicial proceedings In the present case, the
municipality chose to file a civil action for the recovery of possession
of the parcel of land occupied by the PR. Under the Local Government
Code, the Sangguniang Bayan has to first pass an ordinance before
summarily abate a public nuisance.
Considering the facts in the complaint is true then the writ of
possession and writ of demolition would have been justified. A writ
of demolition would have been sufficient to eject the private
respondent.
WEEK 2 EASEMENTS
Definition
NCC
Article 613. An easement or servitude is an encumbrance imposed
upon an immovable for the benefit of another immovable belonging
to a different owner. The immovable in favor of which the easement
is established is called the dominant estate; that which is subject
thereto, the servient estate.
Characteristics
Article 617. Easements are inseparable from the estate to which
they actively or passively belong.
Article 618. Easements are indivisible. If the servient estate is
divided between two or more persons, the easement is not modified,
and each of them must bear it on the part which corresponds to him.
If it is the dominant estate that is divided between two or more
persons, each of them may use the easement in its entirety, without
changing the place of its use, or making it more burdensome in any
other way.
Classification
NCC
Article 613. An easement or servitude is an encumbrance imposed
upon an immovable for the benefit of another immovable belonging
to a different owner. The immovable in favor of which the easement
is established is called the dominant estate; that which is subject
thereto, the servient estate.
Article 614. Servitudes may also be established for the benefit of a
community, or of one or more persons to whom the encumbered
estate does not belong.
Article 615. Easements may be continuous or discontinuous,
apparent or nonapparent. Continuous easements are those the
use of which is or may be incessant, without the intervention of any
17 AbInitio| 2Exec DVOREF
act of man. Discontinuous easements are those which are used at
intervals and depend upon the acts of man. Apparent easements
are those which are made known and are continually kept in view by
external signs that reveal the use and enjoyment of the same.
Nonapparent easements are those which show no external
indication of their existence.
Article 616. Easements are also positive or negative.
A positive easement is one which imposes upon the owner of the
servient estate the obligation of allowing something to be done or of
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doing it himself, and a negative easement, that which prohibits the
 PROPERTY - FINALS
owner of the servient estate from doing something which he could
lawfully do if the easement did not exist.
Article 619. Easements are established either by law or by the will
of the owners. The former are called legal and the latter voluntary
easements.
Article 634. Easements imposed by law have for their object either
public use or the interest of private persons.
Article 688. 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.
Rights and obligations
NCC
Article 624. The existence of an apparent sign of easement between
two estates, established or maintained by the owner of both, shall be
considered, should either of them be alienated, as a title in order that
the easement may continue actively and passively, unless, at the
time the ownership of the two estates is divided, the contrary should
be provided in the title of conveyance of either of them, or the sign
aforesaid should be removed before the execution of the deed. This
provision shall also apply in case of the division of a thing owned in
common by two or more persons.
Article 625. Upon the establishment of an easement, all the rights
necessary for its use are considered granted.
Article 626. The owner of the dominant estate cannot use the
easement except for the benefit of the immovable originally
contemplated. Neither can he exercise the easement in any other
manner than that previously established.
Article 627. 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. 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.
Article 628. Should there be several dominant estates, the owners
of all of them shall be obliged to contribute to the expenses referred
to in the preceding article, in proportion to the benefits which each
may derive from the work. 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 629. The owner of the servient estate cannot impair, in any
manner whatsoever, the use of the servitude. Nevertheless, if by
reason of the place originally assigned, or of the manner established
for the use of the easement, the same should become very
inconvenient to the owner of the servient estate, or should prevent
him from making any important works, repairs or improvements
thereon, it may be changed at his expense, provided he offers
18 AbInitio| 2Exec DVOREF
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.
Article 630. The owner of the servient estate retains the ownership
of the portion on which the easement is established, and may use the
same in such a manner as not to affect the exercise of the easement.
Article 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the
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dominant and servient estates;
 PROPERTY - FINALS
(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 632. The form or manner of using the easement may
prescribe as the easement itself, and in the same way.
Article 633. If the dominant estate belongs to several persons in
common, the use of the easement by any one of them prevents
prescription with respect to the others.
Creation
By Title
NCC
Article 622. Continuous nonapparent easements, and discontinuous
ones, whether apparent or not, may be acquired only by virtue of a
title.
Article 624. The existence of an apparent sign of easement between
two estates, established or maintained by the owner of both, shall be
considered, should either of them be alienated, as a title in order that
the easement may continue actively and passively, unless, at the
time the ownership of the two estates is divided, the contrary should
be provided in the title of conveyance of either of them, or the sign
aforesaid should be removed before the execution of the deed. This
provision shall also apply in case of the division of a thing owned in
common by two or more persons.
By Will of the Owners
NCC
Article 619. Easements are established either by law or by the will
of the owners. The former are called legal and the latter voluntary
easements.
Article 688. 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 689. 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 690. Whenever the naked ownership of a tenement or piece
of land belongs to one personand the beneficial ownership to another,
19 AbInitio| 2Exec DVOREF
no perpetual voluntary easement may be established thereon without
the consent of both owners.
Article 691. In order to impose an easement on an undivided
tenement, or piece of land, the consent of all the co-owners shall be
required. 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. 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.
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 PROPERTY - FINALS
Article 692. The title and, in a proper case, the possession of an
easement acquired by prescription shall determine the rights of the
dominan estate and the obligations of the servient estate. In default,
thereof, the easement shall be governed by such provisions of this
Title as are applicable thereto.
Article 693. 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.
By Law
NCC
Article 619. Easements are established either by law or by the will
of the owners. The former are called legal and the latter voluntary
easements.
Article 634. Easements imposed by law have for their object either
public use or the interest of private persons.
Article 635. All matters concerning easements established for public
or communal use shall be governed by the special laws and
regulations relating thereto, and, in the absence thereof, by the
provisions of this Title.
Article 636. Easements established by law in the interest of private
persons or for private use shall be governed by the provisions of this
Title, without prejudice to the provisions of general or local laws and
ordinances for the general welfare. These easements may be
modified by agreement of the interested parties, whenever the law
does not prohibit it or no injury is suffered by a third person.
Prescription
NCC
Article 620. Continuous and apparent easements are acquired either
by virtue of a title or by prescription of ten years.
Article 621. In order to acquire by prescription the 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 622. Continuous non-apparent easements, and
discontinuous ones, whether apparent or not, may be acquired only
by virtue of a title.
Extinguishment
NCC
Article 631. par. 2 Easements are extinguished (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;
Cid vs Javier 108 Phil 239
20 AbInitio| 2Exec DVOREF
Notarial prohibition is required to start the running of prescription.
Also Registration of the Immovable without the registration of the
easement extinguishes the easement.
FACTS: The easement in dispute here is an easement of light and
view, which is a negative easement. The respondents Javier, et al are
the owners of the building standing on their lot with windows
overlooking the adjacent lot. Respondents have claimed that they
had acquired by prescription an enforceable easement of light and
view arising from a verbal prohibition to obstruct such view and light.
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The lower courts have ruled in their favor.
 PROPERTY - FINALS
Note: easement of light and view is continuous and apparent so it is
subject to prescription.
ISSUES: Whether or not the respondents Irene P. Javier, et
al., owners of a building standing on their lot with windows
overlooking the adjacent lot, had acquired by prescription an
enforceable easement of light and view arising from a verbal
prohibition to obstruct such view and light, alleged to have
been made upon petitioner’s predecessor-in-interest as
owner of the adjoining lot, both of which lots being covered
by Torrens titles.
RULING: NO. Art538’s requirement is a “formal act” and not just
any verbal or written act. “Formal act” contemplated in art538 in the
OLD Civil Code pertains to an instrument acknowledged before a
notary public. Prescription for a negative easement only begins when
there is a notarial prohibition by the dominant estate. Respondents
could have not acquired the easement by prescription because they
have not fulfilled this requirement. Even assuming they have
acquired it, the easement no longer exists because the properties
were registered under the Torrens system without any annotation or
registration of the said easement.
Francisco vs Paez 54 Phil 239
An owner cannot, as respondent has done, by his own act isolate his
property from a public highway and then claim an easement of way
through an adjacent estate. Isolation must not be due to his own
acts.
FACTS: Ramos' Lot 860-A used to be a part of Lot 860 of the Malinta
Estate owned by several co-owners.
On December 3,1947, the co-owners of Lot 860 (Cornelia and
Frisca Dila) executed a deed by which an undivided 1/3 portion of the
land was donated to a niece, Epifania Dila, and another undivided 1/3
portion to the children of a deceased sister, Anacleta Dila, and the
remaining portion, also an undivided third, was declared to pertain
exclusively to and would be retained by Cornelia Dila. A partition was
then executed.
The former co-owners overlooked the fact that, by reason of the
subdivision, Epifania Dila’s lot came to include the entire frontage of
what used to be Lot 860 along Parada Road, and thus effectively
isolated from said road the other lots, i.e., of Cornelia Dila, and of
the children of Anacleta Dila.
Despite that, Cornelia sold the lot to some buyers who
subsequently sold them to Ramos.
Ramos asked for a right of way through Francisco’s land but
negotiations failed. Francisco's proposal for an exchange of land at
the rate of 1 sq.m from him to three 3 sq.m from Ramos, as was
supposedly the custom in the locality, was unacceptable to Ramos.
Later that year, Ramos succeeded was able to obtain a 3m wide
passageway through Dila’s lot. Yet in August, 1973, he inexplicably
put up a 10ft high concrete wall on his lot, thereby closing the very
right of way granted to him across Lot 860-B. [It seems that what he
wished was to have a right of passage precisely through Francisco's
21 AbInitio| 2Exec DVOREF
land, considering this to be more convenient to him, and he did not
bother to keep quiet about his determination to bring suit, if
necessary, to get what he wanted.]
Francisco learned of Ramos' intention and reacted by replacing
the barbed-wire fence on his lot along Parada Road with a stone wall.
Shortly thereafter, Francisco filed a case against him asserting his
right to a legal easement.
ISSUE: Whether or not Ramos was entitled to an easement of
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right of way through the land belonging to Francisco
 PROPERTY - FINALS
HELD: NO The law makes it amply clear that an owner cannot, as
respondent has done, by his own act isolate his property from a public
highway and then claim an easement of way through an adjacent
estate. The third of the cited requisites: that the claimant of a right
of way has not himself procured the isolation of his property had not
been met indeed the respondent had actually brought about the
contrary condition and thereby vitiated his claim to such an
easement. It will not do to assert that use of the passageway through
Lot 860-B was dffficult or inconvenient, the evidence being to the
contrary and that it was wide enough to be traversable by even a
truck, and also because it has been held that mere inconvenience
attending the use of an existing right of way does not justify a claim
for a similar easement in an alternative location.
*Benedicto vs Court of Appeals 134 Phil 122
FACTS: The adjoining properties of the Heras and the defendant
Benedicto formerly belonged to Hedrick. On September 29, 1917,
HEDRICK sold a portion of the above described property, particularly
Lots Nos. 8, 9, 22, and 23 to RECTO. At the time of the sale, the
following buildings were located on the respective properties of Claro
M. Recto and Miriam R. Hedrick. The sale to RECTO as evidenced by
the Escritura de Compra-Venta was subject, among others, to the
condition that they would equally share in providing a 3 to 4 meter
easement for vehicles both at the sides of their properties and that
both parties agree that the dividing line between the portion sold to
Recto remains in the domain of Hedrick fall and that line will be
perpendicular to the San Marcelino street.
RECTO’s properties were subject to a series of transfers, which
eventually ended up with SALVADOR BENEDICTO. HEDRICK’s
properties were subject to a series of transferes but was ultimately
acquired by VICENTE HERAS.. Sometime in 1941, the Heras
demolished the entire building situated on his property.
The trisal court likewise found out that the easement of way
was found entirely within the property of Benedicto, contrary to the
stipulation in the deed of sale between Hedrick and Recto that it
should be between their properties, with each contributing an equal
portion of his property. Accordingly, the court directed both parties
with the property line running at the middle of the passageway. It
rejected Benedicto’s claim that the easement had been extinguished
by nonuser and by the cessation of the necessity for a passageway.
Both parties appeal to the CA, which rendered a decision affirming in
toto the decision of the trial court, and denied the MR filed by the
parties.
Benedicto argues that the easement was originally constituted
because the buildings then erected on the respective
properties of Hedrick and Recto so adjoined each other that the
only way back portions of the properties could be reached by their
owners from San Marcelino street was through the passageway. He
claims that when the respondent Heras had his building demolished
in 1941 the property gained access to San Marcelino street since then
there has been no need for the passageway.
ISSUE: WON the easement has been extinguished by nonuser
HELD: Article 631 of the Civil Code provides in part:
(1) By merger in the same person of the ownership of the dominant
and servient estates;
22 AbInitio| 2Exec DVOREF
(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;
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 PROPERTY - FINALS
(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.
For the purposes of this decision we do not find it necessary to
determine whether the appropriate period of nonuser in this case is
20 or 10 years. For one thing, there is no indubitable proof of
nonuser. The petitioner merely assumes that the passageway in
question had not been in use since 1941 because the property of
Heras has since gained direct access to San Marcelino street with the
demolitionof his house. For another, even if we assume that the
period of prescription based on nonuser is 10 years, the very
testimony of the petitioner Benedicto shows that it was only in 1946
that he had the passageway walled in by constructing a fence, and
since the present action was filed in 1955, granting that article 631
of the Civil Code is applicable, the prescriptive period has not yet
elapsed.
Nor can presumptive renunciation by Heras of the use of the
said passageway be inferred. It would appear from the record that
Heras started the construction of an apartment building on his parcel
of land after the demolition of his house in 1941, and that although
interrupted by World War II, construction was continued in 1955.
Since it is patent from the stipuation of facts that the easement in
question is mainly a vehicular passageway, the obvious need for such
passageway to the rear portion of the projected apartment building
negates any presumptive renunciation on the part of Heras.
Moreover, the easement in this case is perpetual in character
("para todo el tiempo y todas las necesidades de cada una de las dos
propriedades, la vendida por la presente a Claro M. Recto y la que
queda en poder de Miriam R. Hedrick, siendo obligatorio este pacto
para todos los que con posterioridad adquirieran por cualquier titulo
las fincas mencionadas") and was annotated on all the transfer
certificates of title issued in the series of transfers from Miriam R.
Hedrick through to the respondent Heras, and in the transfer
certificates of title issued in the series of transfers from Claro M.
Recto through to the petitioner Benedicto. Since there is nothing in
the record that would point to a mutual agreement between any of
the predecessors-in-interest not between the petitioner and the
respondent themselves with respect to the discontinuance or
obliteration of the easement annotated on the titles, the continued
existence of the easement must be upheld and respected.
The fact that the easement here is one of necessity does not
detract from the conclusion we have reached. For even assuming that
with the demolition of the house on Heras' property the necessity for
the passageway ceased (a point traversed by Heras who claims that
he demolished his house precisely in order to build an apartment
building in its place), still, as was held in one case 2 "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." Indeed, when the
easement in this case was established, the parties unequivocally
made provisions for its observance by all who in the future might
succeed them in dominion, and this is the reason the permanent
character of the easement was annotated on each and all of the
transfer certificates of title.1awphîl.nèt
23 AbInitio| 2Exec DVOREF
** The easement is perpetual in character and was annotated in all
the certificates of title. Absence of anything that would show mutual
agreement to extinguish the easement, the easement persists.
Page
 PROPERTY - FINALS
Legal Easements
In favor of adjacent properties
RIGHT OF WAY
NCC
Article 649. 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. Should
this easement be established in such a manner that its use may be
continuous for all the needs of the dominant estate, establishing a
permanent passage, the indemnity shall consist of the value of the
land occupied and the amount of the damage caused to the servient
estate. In case the right of way is limited to the necessary passage
for the cultivation of the estate surrounded by others and for the
gathering of its crops through the servient estate without a
permanent way, the indemnity shall consist in the payment of the
damage caused by such encumbrance. This easement is not
compulsory if the isolation of the immovable is due to the proprietor's
own acts.
Article 650. The easement of right of way shall be established at the
point least prejudicial to the servient estate, and, insofar as
consistent with this rule, where the distance from the dominant
estate to a public highway may be the shortest.
Article 651. The width of the easement of right of way shall be that
which is sufficient for the needs of the dominant estate, and may
accordingly be changed from time to time.
Article 652. Whenever a piece of land acquired by sale, exchange
or partition, is surrounded by other estates of the vendor, exchanger,
or co-owner, he shall be obliged to grant a right of way without
indemnity. In case of a simple donation, the donor shall be
indemnified by the donee for the establishment of the right of way.
Article 653. In the case of the preceding article, if it is the land of
the grantor that becomes isolated, he may demand a right of way
after paying a indemnity. However, the donor shall not be liable for
indemnity.
Article 654. If the right of way is permanent, the necessary repairs
shall be made by the owner of the dominant estate. A proportionate
share of the taxes shall be reimbursed by said owner to the proprietor
of the servient estate.
Article 655. If the right of way granted to a surrounded estate
ceases to be necessary because its owner has joined it to another
abutting on a public road, the owner of the servient estate may
demand that the easement be extinguished, returning what he may
have received by way of indemnity. The interest on the indemnity
shall be deemed to be in payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened giving
access to the isolated estate. In both cases, the public highway must
substantially meet the needs of the dominant estate in order that the
easement may be extinguished.
Article 656. 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
24 AbInitio| 2Exec DVOREF
estate shall be obliged to permit the act, after receiving payment of
the proper indemnity for the damage caused him.
Article 657. 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. 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
Page
meters and 50 centimeters. Whenever it is necessary to establish a
 PROPERTY - FINALS
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.
Archbishop of Manila v. Roxas, 22 Phil 450
DOCTRINE
There is no need for prescription to be applied in cases
where there is stipulation for automatic reversion.
Nonetheless, the stipulation is against public policy and
thus, is void.
FACTS The administrators of the estate of deceased spouses Eusebio
and Martina De Castro filed a complaint to nullify the deed of
donation, rescission of contract, and reconveyance of the property
against spouses Florencio and Soledad Ignao, Roman Catholic Bishop
of Imus, and Roman Catholic Archbishop of Manila.
The administrators alleged that in 1930 the De Castros
executed the deed of donation over their Cavite property to the
Archbishop, said deed allegedly providing that the latter cannot
dispose or sell the property within 100 years from execution. The
administration of the said properties was transferred to the Bishop of
Imus in 1962. And in 1980, the Bishop of Imus sold the property to
the spouses Ignao. The Ignaos were then able to transfer the TCT
under their names.
The lower court ruled that the action had already prescribed
and dismissed the complaint. This was reversed by the CA.
The Ignaos and the Bishops contend that the cause of action
had already prescribed, relying on Art. 764 which provides that "(t)he
donation shall be revoked at the instance of the donor, when the
donee fails to comply with any of the conditions which the former
imposed upon the latter," and that "(t)his action shall prescribe after
four years from the non-compliance with the condition, may be
transmitted to the heirs of the donor, and may be exercised against
the donee's heirs.
ISSUE: WON the action has already prescribed
HELD / RATIO ACTION HAS ALREADY PRESCRIBED. Art. 764 is
not applicable in this case. The deed of donation involved expressly
provided for automatic reversion of the property donated in case of
violation of the, as was correctly recognized by the CA.
A judicial action for rescission of a contract is not necessary
where the contract provides that it may be revoked and cancelled for
violation of any of its terms and conditions. This cancellation can be
applied in the case at bar. Art. 732 of the Civil Code provides that
donations inter vivos shall be governed by the general provisions on
contracts and obligations in all that is not determined by the law on
donations.
In contracts providing for automatic revocation, judicial
intervention is necessary not for purposes of obtaining a judicial
declaration rescinding a contract already deemed rescinded, but in
order to determine whether or not the rescission was proper.
Thus, the cause of action has not yet prescribed since an action
25 AbInitio| 2Exec DVOREF
to enforce a written contract prescribes in ten (10) years. Article 764
was intended to provide a judicial remedy in case of non-fulfillment
or contravention of conditions specified in the deed of donation if and
when the parties have not agreed on the automatic revocation of
such donation upon the occurrence of the contingency contemplated
therein. That is not the situation in the case at bar.
NONETHELESS, while the action may not be dismissed by reason of
prescription, the same should be dismissed on the ground that the
estates of the De Castros have NO CAUSE OF ACTION against the
Page
Ignaos and other petitioners.
 PROPERTY - FINALS
The cause of action of the De Castros is based on the alleged breach
of the resolutory condition that the property donated should not be
sold within the prohibited period. Said condition, however,
constitutes an undue restriction on the rights arising from ownership
and is, therefore, contrary to public policy and should be declared as
an illegal or impossible condition.
The Ignaos won. The CA decision is reversed.
Cuaycong v. Benedicto, 37 Phil 781
FACTS: Ramona Benedicto owns Hacienda Toreno which is located
in Victorias, Negros Occidental. Two roads pass through the said
hacienda: the Dacuman-Toreno Road and the Nanca-Victorias Road.
For forty years, the owners of the nearby hacienda, Eduardo
Cuaycong et al, had been using the said roads to transport their
products.
But in 1911, Benedicto decided to close the roads and began
asking for toll fees for wagons passing through their hacienda. In
1912, Cuaycong et al sued Benedicto. Cuaycong claimed that they
have a right of way over the said Nanca-Victorias Road considering
that they have been using it since time immemorial.
The lower court dismissed the claim over the Dacuman-Toreno
Road for the other parties were in default, but the lower court
declared that Cuaycong et al do have a right of way over the Nanca-
Victorias Road. Benedicto appealed. Cuaycong then averred that the
road is a public highway.
ISSUE: Whether or not Cuaycong et al were able to establish
their right over the Nanca-Victorias Road.
HELD: No. The Nanca-Victorias Road is not a public highway. First it
was shown that in the
Torrens title held by Benedicto, there was no encumbrance attached
to the hacienda, that it is nowhere nearby a road nor does it border
a road.
Second, the road was not maintained by the local government.
Its upkeep was solely supported by the road users for their benefits,
convenience and interest. There was no adverse possession by the
government.
Third, there was no evidence which shows that the land is of
the nature of a public highway. It was shown that the road was in
existence since 1885, but it was not shown as a public highway, in
fact, the other evidence shown pertain to Dacuman-Toreno Road.
Fourth, the road was closed in 1911; it was only in 1912 that
Cuaycong et al filed their suit.
Neither did Cuaycong et al acquire a right of private easement.
The lower court ruled that Cuaycong et al and their predecessors in
interest had been using the said road since time immemorial yet they
only showed evidence that it was in use in 1885 but no other evidence
to show a further time of usage was ever shown to prove their claim.
Valderrama v. North Negros, 48 Phil 492
26 AbInitio| 2Exec DVOREF
What is prohibited by Art. 543 is that in extending the line or repairing
or using the same, a larger area of land is occupied or excavations or
materials deposited are outside the area occupied not by causing
wagons to pass just because of a change of ownership of the objects
being transported.
FACTS: Several hacienda owners in Manapla, Occidental Negros,
entered into a milling contract with Miguel Osorio wherein the latter
would build a sugar central of a minimum capacity of 300 tons for
the milling and grinding of all the sugar cane to be grown by the
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hacienda owners who in turn would furnish the central with all the
 PROPERTY - FINALS
cane they might produce in their estates for 30 years from the
execution of the contract. Later on, Osorio’s rights and interests were
acquired by the North Negros Sugar Co., Inc.
2 years after, the current petitioners, Catalino Valderrama,
Emilio Rodriguez, Santos Urra et. al, made other milling contracts
identical to the first one with the North Negros Sugar, Co., Inc. The
hacienda owners, however, could not furnish the central sufficient
cane for milling as required by its capacity, so the North Negros made
other milling contracts with the various hacienda owners of Cadiz,
Occidental Negros. This prompted Valderrama et. al to each file a
complaint against North Negros.
The CFI entered 1 single judgment for all of them, ruling in
Valderrama et. al’s favor finding that North Negros had no right to
pass through the lands of the hacienda owners for the transportation
of sugar cane not grown from their lands. Thus the appeal to the SC.
ISSUE: Whether or not the easement of way established was
restricted to transporting only sugar cane from the hacienda
owners’ lands
HELD: NO (the SC also made 1 judgment for all the 3 cases) The
contract entered into by each of the hacienda owners contained a
clause that granted the North Negros an easement of way 7 meters
wide for the period of 50 years upon their properties for the
construction of a railroad. The owners allege ambiguity since it could
permit the transportation of sugar cane which they did not produce
which is contrary to their intent but the SC held that it is clear that
the easement was established for the benefit of all producers and of
the corporation as it is the intent of the milling contract.
Since the easement is a voluntary, apparent, continuous
easement of way in favor of the corporation, it is contrary to the
nature of the contract that it is only limited to canes produced by the
servient estates since it is a well settled rule that things serve their
owner by reason of ownership and not by reason of easement. The
owners also cannot limit its use for there is nothing in the contract
prohibiting the central from obtaining other sources.
Transporting cane from Cadiz also does not make it more
burdensome since what is prohibited in Art. 543 of the CC is that in
extending the road or in repairing it, it should occupy a greater area
or deposit excavations outside the granted 7 meters. This does not
happen in this case when the North Negros transports sugar cane
from Cadiz, crossing the servient estates, since it continues to occupy
the same area and the encumbrance is still the same regardless of
the number of times it passes through the estates.
Also the period of the easement is longer than the period of the
milling contracts, so even if the owners no longer desire to furnish
the central canes for milling, the North Negros still has the right to
the easement for the remaining period so the contention that it
should be limited to the canes produced by the owners has no basis.
North Negros v. Hidalgo, 63 Phil 664
FACTS: Plaintiff is the owner of a sugar central (known as “mill site”)
and also its adjoining plantation Hacienda “Begona”. He constructed
a road adjoining the “mill site” and the provincial highway. Plaintiff
allows vehicles to pass upon paying toll charge of P0.15 for each one;
27 AbInitio| 2Exec DVOREF
pedestrians are allowed free passage.
Defendant owns the adjoining “Hacienda Sangay” wherein he
has a billiard hall and a tuba saloon (as in drinking place). The road
of the plaintiff is the only means of access to get to Hacienda Sangay.
At one point, plaintiff stopped defendant from using the said
road. Hence, instead of taking the road to get to his Hacienda
Sangay, defendant passed through Hacienda Begona in a
passageway used by the carabaos.
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 PROPERTY - FINALS
Plaintiff applied for injunction to restrain the defendant from
entering/passing through his properties (road & Hacienda).
ISSUE: WON injunction should be granted.
HELD: NO.
RATIO: For injunction to be granted, it must be established that the
right sought to be protected exists, but also that the acts against
which the injunction to be directed are violative of said right.
In the case at bar, plaintiff failed to establish his right and that
the defendant has committed/attempts to commit acts that endanger
such right. The complaint does not state how and why the mere
passage of defendant over plaintiff’s estate conveying “tuba” to his
Hacienda has caused damage to plaintiff’s property rights. The real
damage that the plaintiff seeks to avoid is the fact that tuba is
disposed of at defendant’s hacienda in which the plaintiff’s laborers
have access (apparently, the plaintiff hates that his laborers are
getting drunk in the tuba saloon of the defendant). This however, is
a nothing more than an exercise of legitimate business on the part of
the defendant. What the law does not authorize to be done directly,
cannot be done indirectly (if plaintiff cannot enjoin defendant from
selling tuba, neither can it obtain injunction to prevent him from
passing over its property to transport tuba).
(TOPICAL: on mode of acquiring easements): The road
was constructed by the plaintiff on his own land and it made this road
accessible to the public, regardless of class/group of persons/entities.
This is a voluntary easement constituted in favor of the community.
Indeed, the plaintiff may close the road at its pleasure as no period
has been fixed when the easement was constituted, but while the
road is still open, he may not capriciously exclude defendant from its
use. Having the road devoted to the public in general, the road is
charged with public interest and while so devoted, the plaintiff may
not establish discriminatory exceptions against any private person.
He may withdraw his grant by discontinuing its use, but so long as
he maintains it, he must submit to the control.
Furthermore there exists a forcible right of way in favor of the
defendant (CC 564) because those living in Hacienda Sangay have
no access to the provincial road except through the road in question.
*Bernardo v. Court of Appeals
FACTS: Petitioner Amado Bernardo and respondents Juana del
Rosario, Sixta del Rosario, and Pedro de Jesus own adjoining lots in
a large parcel of land formerly known as the Toro-Lolomboy Estate.
Petitioner’s lot happen to be in the interior and has no access
by road to the barrio road to the west or to the provincial highway to
the southeast; but for many years petitioner Bernardo, and other
persons, from his lot, in order to reach the barrio road on the other
side of which are the church and an artesian well, had been allowed
by the respondents to pass over a foot-path which goes through their
lots. It seems that possibly due to some misunderstanding, the
respondents, especially the latter, did not look with favor on Bernardo
continuing to use this foot-path, and de Jesus even put up a fence
across this foot-path at the spot where it crosses his lot.
Thus, petitioner filed an action against the respondents to
28 AbInitio| 2Exec DVOREF
establish a right of way from his lot to the barrio road, about 2 meters
wide and about 70 meters long, more or less, claiming that he has a
jeep used for his business establishment on his lot, and that it was
his only access to the barrio road; at the same time he expressed his
willingness to pay any amount to be determined by the court for the
use of said space, including damages.
In their answers the defendants practically admitted the
existence of the foot-path for many years and used as such by
Bernardo. Juana and Sixta said they never put up any obstacle to
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Bernardo's continuing use said foot-path and De Jesus stated that
 PROPERTY - FINALS
although he built a fence across said path, said fence was so low that
even a child could pass over it. But the three of them objected to the
establishment of a regular road saying that it would cause
incalculable damage to their properties. According to the record the
trial judge made an ocular inspection of the premises presumably to
determine the feasibility and advisability of establishing or opening
up a road for the use of Bernardo and other persons leading toward
the barrio road or to the provincial highway to the southeast and to
find the most suitable route, although it does not appear that said
trial judge ever made of record the result of his inspection. However,
either because of the result of this ocular inspection or to settle the
case amicably, the parties Bernardo, Juana, Sixta and De Jesus,
entered into a written agreement ratified by them before a notary
public and submitted by their counsel to the lower court, with a
prayer that judgment be rendered in accordance therewith. Acting
upon said agreement the trial court in a decision dated September
17, 1951, reproduced and approved said agreement.
After the judgment based on the agreement already mentioned
had become final Bernardo tried to register the same for purposes of
annotation on the corresponding certificates of titles of Juana, Sixta
and de Jesus. The register of deeds presumably told him that to do
so, he must need and have the owner's duplicate certificates of title
of said persons, and so Bernardo made written demands on them.
Thus, this petition.
ISSUE: WON easement should be practiced (not sure sa issue
hehe)
HELD: YES. Agreement or judgment on such right must be
respected. There is no question that the agreement or promise of the
three defendants-respondents gave a right to Bernardo to continue
using the foot-path from his lot to the barrio road. The agreement
was not exactly an act of liberality because it was based on a
consideration. As long as the owners of the servient estates
continued as owners of said lots over which the foot-path extended,
they could not close the same because they were bound by the
agreement and by the judgment rendered on the basis thereof they
being parties not only to the agreement but also to the action on
which the judgment was rendered.
*Francisco v. Intermediate Appellate Court
Easement of Way
An owner cannot, as respondent has done, by his own act
isolate his property from a public highway and then claim an
easement of way through an adjacent estate. Isolation must not be
due to his own acts.
FACTS: Ramos' Lot 860-A used to be a part of Lot 860 of the Malinta
Estate owned by several co-owners.
On December 3,1947, the co-owners of Lot 860 (Cornelia and
Frisca Dila) executed a deed by which an undivided 1/3 portion of the
land was donated to a niece, Epifania Dila, and another undivided 1/3
portion to the children of a deceased sister, Anacleta Dila, and the
remaining portion, also an undivided third, was declared to pertain
exclusively to and would be retained by Cornelia Dila. A partition was
then executed.
The former co-owners overlooked the fact that, by reason of
29 AbInitio| 2Exec DVOREF
the subdivision, Epifania Dila’s lot came to include the entire frontage
of what used to be Lot 860 along Parada Road, and thus effectively
isolated from said road the other lots, i.e., of Cornelia Dila, and of
the children of Anacleta Dila.
Despite that, Cornelia sold the lot to some buyers who
subsequently sold them to Ramos.
Ramos asked for a right of way through Francisco’s land but
negotiations failed. Francisco's proposal for an exchange of land at
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 PROPERTY - FINALS
the rate of 1 sq.m from him to three 3 sq.m from Ramos, as was
supposedly the custom in the locality, was unacceptable to Ramos.
Later that year, Ramos succeeded was able to obtain a 3m wide
passageway through Dila’s lot. Yet in August, 1973, he inexplicably
put up a 10ft high concrete wall on his lot, thereby closing the very
right of way granted to him across Lot 860-B. [It seems that what he
wished was to have a right of passage precisely through Francisco's
land, considering this to be more convenient to him, and he did not
bother to keep quiet about his determination to bring suit, if
necessary, to get what he wanted.]
Francisco learned of Ramos' intention and reacted by replacing
the barbed-wire fence on his lot along Parada Road with a stone wall.
Shortly thereafter, Francisco filed a case against him asserting his
right to a legal easement.
ISSUE: Whether or not Ramos was entitled to an easement of
right of way through the land belonging to Francisco
HELD: No.
The law makes it amply clear that an owner cannot, as
respondent has done, by his own act isolate his property from a public
highway and then claim an easement of way through an adjacent
estate. The third of the cited requisites: that the claimant of a right
of way has not himself procured the isolation of his property had not
been met indeed the respondent had actually brought about the
contrary condition and thereby vitiated his claim to such an
easement. It will not do to assert that use of the passageway through
Lot 860-B was difficult or inconvenient, the evidence being to the
contrary and that it was wide enough to be traversable by even a
truck, and also because it has been held that mere inconvenience
attending the use of an existing right of way does not justify a claim
for a similar easement in an alternative location.
*Costabella v. Court of Appeals, 193 SCRA 333
Easement Right of Way
The convenience of the dominant estate is not the gauge for the grant
of compulsory right of way but rather, it should satisfy all four
requisites (emphasis on 1st requisite- it should be merely for
convenience but it must be due to the fact that the dominant estate
does not have an adequate outlet to a public highway.
FACTS:
Petitioners owned a lot wherein they started constructing their beach
hotel. Before such construction, the private respondent, in going to
and from their respective properties and the provincial road, passed
through a passageway which traversed the petitioner’s property. As
a result of the construction, this passageway, including the
alternative route, was obstructed. Private respondent filed for
injunction plus damages. In the same complaint the private
respondents also alleged that the petitioner had constructed a dike
on the beach fronting the latter’s property without the necessary
permit, obstructing the passage of the residents and local fishermen,
and trapping debris of flotsam on the beach. The private respondent
also claim that the have acquired the right of way through
prescription. They prayed for the re-opening of the “ancient road
right of way” (what they called the supposed easement in this case)
and the destruction of the dike. Petitioner answered by saying that
their predecessor in interest’s act of allowing them to pass was
30 AbInitio| 2Exec DVOREF
gratuitous and in fact, they were just tolerating the use of the private
respondents. CA ruled in favor of the private respondents.
ISSUE:
1) Whether or not easement of right and way can be acquired
through prescription?
2) Whether or not the private respondents had acquired an
easement of right of way in the form of a passageway, on the
petitioner’s property?
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 PROPERTY - FINALS
RULING:
1) NO. Easement of right of way is discontinuous thus it cannot be
subject to acquisitive prescription.
2) NO. one may validly claim an easement of right of way when he
has proven the: (1) the dominant estate is surrounded by other
immovables and has no adequate outlet to a public highway; (2)
proper indemnity has been paid; (3) the isolation was not due to acts
of the proprietor of the dominant estate; (4) the right of way claimed
is at point least prejudicial to the servient estate. The private
respondent failed to prove that there is no adequate outlet from their
respective properties to a public highway; in fact the lower court
confirmed that there is another outlet for the private respondents to
the main road (yet they ruled in favor of the private respondents).
Apparently, the CA lost sight of the fact that the convenience of the
dominant estate was never a gauge for the grant of compulsory right
of way. There must be a real necessity and not mere convenience for
the dominant estate to acquire such easement. Also, the private
respondents made no mention of their intention to indemnify the
petitioners. The SC also clarified that “least prejudicial” prevails over
“shortest distance” (so shortest distance isn’t necessarily the best
choice.)
*Encarnacion v. Court of Appeals, 195 SCRA 74
Easement of Right of Way
An easement of right of way exists as a matter of law when a private
property has no access to a public road and the needs of such
property determines the width of the easement which requires
payment of indemnity which consists of the value of the land and the
amount of the damages caused.
FACTS: Tomas Encarnacion is the owner of the dominant estate
which is bounded on the north by the servient estates of Eusebio de
Sagun and Mamerto Masigno, on the south by a dried river and the
Taal Lake. The servient estate is bounded on the north by the
National Highway.
Prior to 1960, persons going to the national highway would just
cross the servient estate at no particular point. In 1960, Sagun and
Masigno enclosed their lands with a fence but provided a roadpath
25 meters long and about 1 meter in width. At this time, Encarnacion
started his plant nursery business on his land. When his business
flourished, it became more difficult to transfer the plants and garden
soil through the use of a pushcart so Encarnacion bought an owner-
type jeep for transporting the plants. However, the jeep could not
pass through the roadpath so he approached Sagun and Masigno
asking them if they would sell to him 1 ½ meters of their property to
add to the existing roadpath but the 2 refused the offer.
Encarnacion then instituted an action before the RTC to seek
the issuance of a writ of easement of a right of way over an additional
width of at least 2 meters. The RTC dismissed the complaint for there
is another outlet, which is through the dried river bed. This was
affirmed by the CA thus the case at bar.
ISSUE: Whether or not Encarnacion is entitled to an widening
of an already existing easement of right-of-way
RULING: YES. Encarnacion has sufficiently established his claim.
31 AbInitio| 2Exec DVOREF
Generally, a right of way may be demanded: (1) when there is
absolutely no access to a public highway, and (2) when, even if there
is one, it is difficult or dangerous to use or is grossly insufficient. In
the case at bar, although there is a dried river bed, t it traversed by
a semi-concrete bridge and there is no egress or ingress from the
highway. For the jeep to reach the level of the highway, it must
literally jump 4-5 meters up. And during rainy season, it is
impassable due to the floods. When a private property has no access
to a public road, it has the right of easement over adjacent servient
estates as a matter of law. With the non-availability of the dried river
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bed as an alternative route, the servient estates should
 PROPERTY - FINALS
accommodate the needs of the dominant estate. Art. 651 provides
that “the width of the easement of right of way shall be that which is
sufficient for the needs of the dominant estate …” To grant the
additional easement of right of way of 1 ½ meters, Encarnacion must
indemnify Sagun and Masigno the value of the land occupied plus
amount of the damages caused until his offer to buy the land is
considered.
*Solid Manila Corp. v. Bio Hong, 195 SCRA 748
Easement and Servitudes
Servitudes are merely accessories to the tenement of which
they form part, and even if they are possessed of a separate juridical
existence, they cannot be alienated from the tenement or mortgaged
separately.
Note: In a personal 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. (Merger, which
presupposes ownership, is not possible.)
FACTS: Solid Manila Corp. is the owner of a parcel of land located in
Ermita. The same lies in the vicinity of another parcel registered
under Bio Hong Trading whose title came from a prior owner. In the
deed of sale between Bio Hong and the vendor, 900 sqm of the lot
was reserved as an easement of way. The construction of the private
alley was annotated on Bio Hong’s title stating among other things
"(6) That the alley shall remain open at all times, and no obstructions
whatsoever shall be placed thereon; and (7) that the owner of the lot
on which the alley has been constructed shall allow the public to use
the same, and allow the City to lay pipes for sewer and drainage
purposes, and shall not act (sic) for any indemnity for the use
thereof”
The petitioner claims that ever since, it (along with other
residents of neighboring estates) made use of the above private alley
and maintained and contributed to its upkeep, until sometime in
1983, when, and over its protests, the private respondent
constructed steel gates that precluded unhampered use.
On December 6, 1984, the petitioner commenced suit for
injunction against the private respondent, to have the gates removed
and to allow full access to the easement.
The trial court ordered Bi Hong to open the gates but the latter
argued that the easement has been extinguished by merger in the
same person of the dominant and servient estates upon the purchase
of the property from its former owner.
CA reversed holding that an easement is a mere limitation on
ownership and that it does not impair the private respondent's title,
and that since the private respondent had acquired title to the
property, "merger" brought about an extinguishment of the
easement.
Thus, Solid went to the SC alleging that the very deed of sale
executed between the Bio Hong and the previous owner of the
property "excluded" the alley in question, and that in any event, the
intent of the parties was to retain the "alley" as an easement
notwithstanding the sale.
32 AbInitio| 2Exec DVOREF
[While the case was pending, Bio Hong asked the RTC to cancel
the annotation in question, which it granted subject to the final
outcome of the prior case.]
ISSUE:
1) Whether or not easements may be alienated (sold) from
the tenement or mortgaged separately
2) Whether or not the easement had been extinguished by
merger.
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 PROPERTY - FINALS
HELD: NO to both
1) The sale included the alley. The court rejected Solid’s contention
that the alley was not included in the sale. It was included but there
was a limitation on its use-the easement. As a mere right of way, it
cannot be separated from the tenement and maintain an independent
existence. (Art. 617)
Even though Bio Hong acquired ownership over the property –
– including the disputed alley –– as a result of the conveyance, it did
not acquire the right to close that alley or otherwise put up
obstructions thereon and thus prevent the public from using it,
because as a servitude, the alley is supposed to be open to the public.
2) No genuine merger took place as a consequence of the sale in
favor of the private respondent corporation. According to the Civil
Code, a merger exists when ownership of the dominant and servient
estates is consolidated in the same person. Merger requires full
ownership of both estates.
Note that The servitude in question is a personal servitude
(established for the benefit of a community, or of one or more
persons to whom the encumbered estate does not belong). In a
personal servitude, there is therefore 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. Thus, merger
could not have been possible.
*Quimen v. Court of Appeals, 257 SCRA 163
Easement
LEAST DAMAGE > SHORTEST DISTANCE
When 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. However, as
elsewhere stated, if 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.
FACTS: Anastacia Quimen, together with her 3 brothers and sister,
inherited a piece of property in Bulacan. They agreed to subdivide
the property equally among themselves. The shares of Anastacia and
3 other siblings were next to the municipal road. Anastacia’s was at
the extreme left of the road while the lots on the right were sold by
her brothers to Catalina Santos. A portion of the lots behind
Anastacia’s were sold by her (as her brother’s adminstratix) brother
to Yolanda.
Yolanda was hesitant to buy the back property at first because
it d no access to the public road. Anastacia prevailed upon her by
assuring her that she would give her a right of way on her adjoining
property (which was in front) for p200 per square meter.
Yolonda constructed a house on the lot she bought using as her
passageway to the public highway a portion of anastacia’s property.
But when yolanda finally offered to pay for the use of the pathway
anastacia refused to accept the payment. In fact she was thereafter
barred by Anastacia from passing through her property.
After a few years, Yolanda purchased another lot from the
Quimens (a brother), located directly behind the property of her
33 AbInitio| 2Exec DVOREF
parents who provided her a pathway gratis et amore between their
house, extending about 19m from the lot of Yolanda behind the sari-
sari store of one brother, and Anastacia’s perimeter fence.
In 1987, Yolanda filed an action with the proper court praying
for a right of way through Anastacia’s property. The proposed right
of way was at the extreme right of Anastacia’s property facing the
public highway, starting from the back of the sari-sari store and
extending inward by 1m to her property and turning left for about
5m to avoid the store in order to reach the municipal road. The way
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was unobstructed except for an avocado tree standing in the middle.
 PROPERTY - FINALS
The trial court dismissed the complaint for lack of cause of
action, explaining that the right of way through the brother’s property
was a straight path and to allow a detour by cutting through
Anastacia’s property would no longer make the path straight. They
held that it was more practical to extend the existing pathway to the
public road by removing that portion of the store blocking the path
as that was the shortest route to the public road and the least
prejudicial to the parties concerned than passing through Anastacia’s
property.
CA reversed and held that Yolanda was entitled to a right of
way on Anastacia’s property. The court, however, did not award
damages to her and held that Anastacia was not in bad faith when
she resisted the claim.
Anastacia went to the SC alleging that her lot should be
considered as a servient estate despite the fact that it does not abut
or adjoin the property of private respondent. She denies ever
promising Yolonda a right of way.
Anastacia also argues that when Yolanda purchased the second
lot, the easement of right of way she provided was ipso jure
extinguished as a result of the merger of ownership of the dominant
and the servient estates in one person so that there was no longer
any compelling reason to provide private respondent with a right of
way as there are other surrounding lots suitable for the purpose.
She also strongly maintains that the proposed right of way is
not the shortest access to the public road because of the detour and
that, moreover, she is likely to suffer the most damage as she derives
a net income of P600.00 per year from the sale of the fruits of her
avocado tree, and considering that an avocado has an average life
span of seventy (70) years, she expects a substantial earning from
it.
ISSUE:
1) Whether or not there was a valid grant of an easement
2) Whether or not the right of way proposed by Yolonda is the
least onerous/least prejudicial to the parties
HELD: YES to both
1) A right of way in particular 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.
The conditions for a valid grant of an easement of right of way
are:
(a) the dominant estate is surrounded by other immovables without
an adequate outlet to a public highway;
(b) the dominant estate is willing to pay the proper indemnity;
(c) the isolation was not due to the acts of the dominant estate; and,
(d) the right of way being claimed is at a point least prejudicial to the
servient estate.
These elements were clearly present. The evidence clearly
34 AbInitio| 2Exec DVOREF
shows that the property of private respondent is hemmed in by the
estates of other persons including that of petitioner; that she offered
to pay P200.00 per square meter for her right of way as agreed
between her and petitioner; that she did not cause the isolation of
her property; that the right of way is the least prejudicial to the
servient estate. These facts are confirmed in the ocular inspection
report of the clerk of court, more so that the trial court itself declared
that “[t]he said properties of Antonio Quimen which were purchased
by plaintiff Yolanda Quimen Oliveros were totally isolated from the
public highway and there appears an imperative need for an
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easement of right of way to the public highway.
 PROPERTY - FINALS
2) Article 650 of the NCC explicitly states 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.”
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. When 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. However, as elsewhere stated, if 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.
TC’s findings:
> Yolanda’s property was situated at the back of her father’s property
and held that there existed an available space of about 19m long
which could conveniently serve as a right of way between the
boundary line and the house of Yolanda’ s father
> The vacant space ended at the left back of the store which was
made of strong materials
> Which explained why Yolanda requested a detour to the lot of
Anastacia and cut an opening of one (1) meter wide and five (5)
meters long to serve as her right of way to the public highway.
CA’s finding:
> The proposed right of way of Yolanda, which is 1m wide and 5m
long at the extreme right of Anastacia’s property will cause the least
prejudice and/or damage as compared to the suggested passage
through the property of Yolanda’ s father which would mean
destroying the sari-sari store made of strong materials.
Absent any showing that these findings and conclusion are
devoid of factual support in the records, or are so glaringly erroneous,
the SC accepts and adopts them. As between a right of way that
would demolish a store of strong materials to provide egress to a
public highway, and another right of way which although longer will
only require an avocado tree to be cut down, the second alternative
should be preferred.
WEEK 3 PARTY WALL
NCC
Article 658. The easement of party wall shall be governed by the
provisions of this Title, by the local ordinances and customs insofar
as they do not conflict with the same, and by the rules of co-
ownership.
Article 659. 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 660. 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
35 AbInitio| 2Exec DVOREF
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;
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 PROPERTY - FINALS
(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.
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.
Article 661. Ditches or drains opened between two estates are also
presumed as common to both, if there is no title or sign showing the
contrary.
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.
Article 662. 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.
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.
Article 663. 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 664. 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.
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.
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.
Article 665. 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 666. 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-
36 AbInitio| 2Exec DVOREF
owners.
*Lao v. Heirs of Alburo, 33 Phil 48
Facts: The question to be decided relates solely to the matter of the
said wall of the property designated as parcel No. 2 – the subject
matter of the objection filed by the administrator of the estate of the
deceased Lorenza Alburo, owner of the property adjoining that
designated as parcel No. 2 – the administrator alleges in his objection
that the said stone wall forms a part of the property that belonged to
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the said deceased while the applicants claim that this wall is theirs,
 PROPERTY - FINALS
being a part of the strong-minded material house constructed on the
said parcel of land, Lot No. 2 according to the plan, Exhibit A.
ISSUE: Whether or not the subject wall is a party wall?
RULING: No. The wall in question is not a party wall.
Article 572 of the Civil Code provides that the easement of
party walls is presumed, unless there is a title or exterior mark or
proof to the contrary in the dividing walls of adjoining buildings up to
the common point of elevation. As the court held judgment appealed
from that the wall which lies between the properties of the applicant
and the objectors was a party wall, and as the applicants appealed
from this ruling, it devolves upon us to decide whether it is in fact a
party wall, as counsel for the administrator of the estate of the
deceased Alburo or for her heirs finally admitted that it was in
assenting to that decision, although he averred in his written
objection that it was the exclusive property of the objectors; or
whether, on the contrary, this wall is a part of property marked No.
2 on the plan Exhibit A, as the applicants claims.
Article 573 of the Civil Code also declares that it shall be
understood that there are exterior signs which conflict with the
easement of party wall, when, among other circumstances, the entire
wall is built on one of the lots and not on the line dividing the two
adjoining parcels; when the dividing wall, being constructed of stone
and cement, has stone projecting at intervals from the surface on
one side only and not on the other; and when it supports joists,
beams, floors, and the roof timbers of one of the houses but not of
the adjoining building. The record shows it to have been duly proven
that the enclosing wall of Lot No. 2 of the plan Exhibit A, belonging
to the applicants, is much higher than the adjoining building of the
objectors; that along the top of the said wall there is a gutter which
catches the rain water from the eaves of the roof of the applicants’
building and carries it thence to Calle Juan Luna through an iron pipe
fastened to the said wall; that one-half of the top of the said wall is
covered by the roof of the applicants’ building; that the supports of
the said wall project toward the side of the applicants’ land and that
none of the buttresses are on the side of the objectors’ lot; that the
stones of the wall in dispute are bound or inset in the rear enclosing
wall of the applicants’ property in such wise that the two walls that
inclose the lot form but a single construction, the exterior signs of
which show that the wall in question is not a party wall, but that it
forms a part of the applicant’s building and belongs to them. Besides
the signs just referred to, the evidence also shows that on the
objectors’ land and flanking the disputed wall there is another and
lower wall which has no connection with the one in question.
Cayetano Arguelles, a master builder, who climbed to the top
of the wall in question and examined it, testified that the aforesaid
drain caught the rain water from the eaves of the applicants’ roof,
and that from the outside the division or space between the
applicants’ wall and the wall on the objectors’ land could be seen;
that the lower part of this latter wall had two arch like hollows; that
according to the testimony of the objector, Ireneo Mendoza, the latter
wall was that of an old building that had belonged to the said
deceased and was destroyed by an earthquake; and that in the rear
of the objectors’ land were the ruins of a wall which had also flanked
the wall in dispute, and these ruins, according to the said witness
Mendoza were what was left of the wall of a latrine formerly existing
there. These exterior signs contrary to the existence of a party-wall
easement cannot be offset by the circumstance that the dispute wall
37 AbInitio| 2Exec DVOREF
projects into Calle Juan Luna 74 centimeters farther than the
applicants’ building, and neither can the fact that the face of this
projecting wall is on the same street line as the objectors’ building,
for the reason that, in view of the said signs contrary to the existence
of the easement of party wall, the projection of the wall does not
prove that it was a party wall belonging in common to the applicants
and the objectors and that the latter shared in the ownership thereof.
The objectors have not proved that a part or one-half of the wall in
litigation was erected on the land that belonged to the deceased
Lorenza Alburo. The fact that the owners of the objectors’ property
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may have surreptitiously inserted some of the timbers or joists of
 PROPERTY - FINALS
their building in the wall belonging to the applicants is not enough to
convert this latter into a party wall, when there are so many exterior
signs to indicate the exclusive ownership of the wall and to conflict
with the existence of the easement that the objectors endeavor to
establish. The wall in litigation is fully proven by the record to belong
exclusively to the applicants. All of the applicants’ properties,
including the wall in question, should therefore be registered.
For the foregoing reasons the judgment appealed from is
affirmed, but the decree of registration of the property designated as
Lot No. 2 shall include the disputed wall as belonging exclusively to
the applicants, and that part of said wall is a party wall is hereby
reversed.
LIGHT AND VIEW
NCC
Article 667. No part-owner may, without the consent of the others,
open through the party wall any window or aperture of any kind.
Article 668. 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 669. 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.
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.
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.
Article 670. 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.
Neither can side or oblique views upon or towards such
conterminous property be had, unless there be a distance of sixty
centimeters.
The nonobservance of these distances does not give rise to
prescription.
Article 671. 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.
38 AbInitio| 2Exec DVOREF
Article 672. 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 673. 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
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 PROPERTY - FINALS
provided in Article 671. Any stipulation permitting distances less than
those prescribed in Article 670 is void.
*Cortes v. Yu-Tibo, 2 Phil 24
Facts: The case was brought for the purpose of restraining the
continuation of certain buildings commenced by the defendant. The
wife of the plaintiff owns house No. 65 in Calle Rosario. House No 65.
Has windows which receives light and air from the adjacent house,
which is house No 63 of the same street. Plaintiff contends that these
windows have been in existence since 1843. The defendant, tenant
of house No 63 has commenced works that raised the roof of house
No 63 which covered house No 65, depriving house No 65 of air and
light formerly received through the window.
The contention of the plaintiff is that by the constant and
uninterrupted use of the windows referred to above during a period
of fifty-nine years he acquired from prescription an easement of light
in favor of the house No. 65, and as a servitude upon house No. 63,
and, consequently, has acquired the right to restrain the making of
any improvements in the latter house which might in any manner be
prejudicial to the enjoyment of the said easement. He contends that
the easement of light is positive; and that therefore the period of
possession for the purposes of the acquisition of a prescriptive title
is to begin from the date on which the enjoyment of the same
commenced.
The defendant, on the contrary, contends that the easement is
negative, and that therefore the time for the prescriptive acquisition
thereof must begin from the date on which the owner of the dominant
estate may have prohibited, by a formal act, the owner of the
servient estate from doing something which would be lawful but for
the existence of the easement.
The court below in its decision held in the easement of light is
negative, and this ruling has been assigned by the plaintiff as error
to be corrected by this court.
Issue: Was the easement positive or negative? When did the
prescriptive period start to run?
Doctrine and Held:
Ruling 1 - The Court clarified that mere act of opening one own’s
window is an act of dominion not of easement. The easement here is
the (possible) prohibition of creating any improvements on the
property of the defendants (negative easement) that may impede or
limit the use of the window. Thus, plaintiff is totally wrong in saying
that prescription for the easement starts to kick in when the window
was made and acknowledge by the adjacent owner. In fact, what is
needed in this situation is a formal act through a notarial prohibition
so that prescriptive period will start. The fact that the defendant has
not covered the windows of the apellant/ plaintiff does not necessarily
imply the recognition of the acquisitive prescription of the alleged
easement as this might just be a result of a mere tolerance on the
part of the defendant.
Plaintiffs asked for a rehearing but was again denied! Plaintiff
mentions about their windows and watersheds to be apparent
39 AbInitio| 2Exec DVOREF
easements, or just projitiendi and jus spillitiendi. The court says that
the plaintiffs are obviously confused between the right exercised by
owners and the rights provided in easements.
Ruling 2 - GENERAL RULE: No part owner can, without the consent
of the other, make in a party wall a window or opening of any kind
(Art. 580). The very fact of making such opening in such a wall may
be the basis for acquisition of a prescriptive title without the necessity
of any active opposition because it always presupposes the express
or implied consent of the owner of the wall, which in time, implies a
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voluntary waiver of the right to oppose.
 PROPERTY - FINALS
EXCEPTION: When the windows are not opened on the neighbor's
side, there is need of a prohibition from exercising that neighbor's
right to build on his land or cover the closed window on the party
wall. The period of prescription starts to run from such prohibition if
the neighbor consents to it.
Note: The law refers to all kinds of windows, even regulation
windows. According to article 528, windows with "similar projections"
include sheds.
The exception applies in this case because
1) what is concerned is a party wall;
2) there was no prohibition on Yu-Tibo to build anything that would
cover the Cortes' window (Yu-Tibo wanted to raise his roof which
would in effect cover 1/2 of the window).
*Fabie v. Lichauco, 11 Phil 14
Doctrine: Respondent who claims the said easement is obliged to
prove the aforementioned gallery, in which the apparent sign of
easement is made to consist in the present case, existed at the time
of ownership of her property and that of the petitioner were
separated.
Facts: Petitioner Fabie applied for the registration of his property in
Manila free form any encumbrances except to the easement of right
of way in favor of the respondent. In addition to the right of way, the
respondents also claim that of light and view and drainage. However,
the claim was later reduced only to that of light and view. Lichauco
claimed that when Juan Baustita Coloma, the original owner of both
estates, establish not only an easement of right of way but also of
light and view and that when both properties are alienated, the
apparent signs were not removed. The apparent sign allegedly
consists of a gallery with windows through which light is admitted. It
was supported on columns erected on the ground belonging to the
petitioner and a balcony on Lichauco’s property is supported by
upright erected on the land by petitioner. The parties admitted the
existence of such gallery. The house was now afrontage of 18 meters
and 60 centimeters, of which 16 meters and 60 centimeters
correspond to the main part of the same, and 1 meter and 90
centimeters to gallery in question. It results therefore, that at the
present day, the houses has nearly 2 meters more frontage than
when it was alienated by Coloma. Therefore, at the present day the
house is erected partly on the land belonging to the owner and partly,
that gallery, over the lot belonging to another, that is over that of
the petitioner. When it was sold on October 1848, no portion of the
house occupied that lot last mentioned, but the entire building was
erected over a lot belonging to the owner as set forth in the
instrument of the sale. The lower court held that the right of way and
drainage exist in favor of the respondent’s respective properties. The
claim as to the easement of light and view was dismissed by the
Court.
Issue: WON the Respondents are entitled to the easement of
light and view.
Ruling: NO. The burden is not on the petitioner to prove on what
time the gallery in controversy was constructed in as much as he
limits himself to sustaining and defending the freedom of his
property, denying easement of light and view of the respondent
40 AbInitio| 2Exec DVOREF
pretends to impose over it. A property is assumed to be free from all
encumbrances unless the contrary is proved. Respondent who claims
the said easement is obliged to prove the aforementioned gallery, in
which the apparent sign of easement is made to consist in the present
case, existed at the time of ownership of her property and that of the
petitioner were separated. And in as much as this issue has not been
proven, the claim of the respondents as to the easement of light and
view which the petitioner does not admit, must of necessity be
dismissed. Therefore, it does not appear from the agreement of the
parties that the respondent has balconies over the land of the
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petitioner, and as it is, since it has not been positively shown that the
 PROPERTY - FINALS
said balconies exceed the limit of the land owned by the former, nor
less that they invade the atmospheric area of the loft belonging to
the latter, it follows that, even in accordance with the theory
maintained by the respondents with which on account of its lack of
basis, we consider it unnecessary to deal hear in as to its other
aspect, the easement of view, which might result in such case from
the existence of the balconies alluded to, would be negative and not
a positive one, because the erection of the same would not
constitute, according to their statement, an invasion of the right of
another, but the lawful exercise of the right inherent to the dominion
of the respondents to construct within their own lot. And as said
easement is negative, it cannot be prescribed in favor of the property
of the respondent in the absence of any act of opposition, according
to the agreement, by which they or their principals would have
prohibited the petitioner or his principals to do any work which
obstructs the balconies in question, in as much as the said act of
opposition is what constitutes the necessary and indispensable point
of departure for computing the time required by law for the
prescription of negative easements. Thus the judgment appealed
from is affirmed intoto.
PROPERTY | EASEMENT
ART. 581. The owner of a wall which is not a party wall, adjoining
another's estate, may make in it windows or openings to admit light,
at the height of the ceiling joists or immediately under the ceiling, of
the dimensions of thirty centimeters square, and, in any case, with
an iron grate embedded in the wall and a wire screen.
ART. 582. Windows with direct views, or balconies or any similar
openings projecting over the estate of the neighbor, cannot be made
if there is not a distance of, at least, two meters between the wall in
which they are built and said estate.
*Saenz v. Figueras Hermanos, 13 Phil 666
FACTS: The plaintiff Saenz and the defendant Hermanos own
adjoining lots within the municipality of Iloilo.
Hermanos had constructed or was constructing a house of
strong materials upon its lot. The line of the said house on the side
toward the lot belonging to Saenz was less than two meters from
dividing line of the two lots. The said house was of two stories.
The side of the house toward the lot of Saenz, the Hermanos
placed three windows; and in the second story had placed five
windows, each looking directly upon the lot of the Saenz. Hermanos
had not obtained the permission of the plaintiff to place the said
windows and balconies in the manner above indicated.
The defendants have constructed a two-story house on their lot
at a distance of 71 centimeters from the dividing line at the front
part, and at a distance of 70 centimeters at the rear. The defendants’
3 windows on the ground floor of their house, in the part that
overlooks the lot of the plaintiff, are 1 meter and 20 centimeters wide
and 2 meters high; on the upper floor there are 5 windows, each 2
meters and 11 centimeters high and 1 meter and 60 centimeters
wide; a balcony was constructed at the front part of the house above
the ground floor, opening directly upon the lot of the plaintiff, and
41 AbInitio| 2Exec DVOREF
another balcony at the rear part of the house, which up to the present
time opens directly upon the plaintiff's lot, although the defendants
state that, according to the plan, said part is to be closed with boards.
Saenz claims that, under articles 581 and 582 of the Civil Code,
Hermanos is prohibited from constructing his house and opening the
windows and balconies looking directly upon his property in the
manner above described, and prays that the court issue an order
directing the defendant to close said windows and that the said
defendant be prohibited perpetually from constructing openings in its
house except in conformity with said articles of the Civil Code.
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 PROPERTY - FINALS
ISSUE: Is Hermanos entitled to the easement of light and view
which the windows and openings give him? Is Hermanos in
violation of Art 581 and 582?
HELD
Lower Court
Although the windows of the house come within the prohibition
contained in article 582 of the Civil Code, Saenz is not entitled to the
judgment asked for, or for any other judgment in his favor.
Therefore, it is ordered that judgment be entered in favor of the
defendant for the recovery of the costs herein. — (Signed) Henry C.
Bates, judge of the Ninth Judicial District.
Supreme Court
Defendant Hermanos is not entitled to the easement of light
and view which the windows and openings, which he was made in
the house in question, give him, and, because of the fact that he has
constructed his houses nearer than 2 meters to the dividing line
between his property and the property of the plaintiff, he is only
entitled to the easement of light and view provided for in said article
581 above quoted. Therefore, let a judgment be entered reversing
the judgment of the lower court with costs, and directing the
defendants, within a period of thirty days from the receipt of the
notice of this decision, to close the said openings and windows, in the
said house, looking directly upon the property of the plaintiff. So
ordered.
Court Rationale
Article 582 absolutely prohibits the construction of
windows with direct views, or balconies or any similar
openings projecting over adjoining property, unless there is a
distance of at least 2 meters between the wall in which they
are built and the adjoining property. The distance between the
wall of the house of the defendant and the dividing line between the
two lots was only 71 centimeters. The defendant, therefore, has
violated the provisions of said article 582 by building in his house
nearer the line of the property of the plaintiff than a distance of 2
meters.
Article 581 provides the character of windows or
openings in a wall adjoining the property of another when
such wall is constructed nearer the dividing line of the two
properties than 2 meters. In the present case the defendant
constructed his house so that the wall looking upon the property of
the plaintiff was less than 2 meters from the dividing line. He can,
therefore, only construct such windows as are provided for in said
article 581.
*Amor v. Florentino, 74 Phil 403
FACTS: Maria Florentino owned a house and a camarin (warehouse).
By a will, she transferred the house to Jose Florentino and the
warehouse to Maria Florentino. Maria sold the warehouse to Amor.
Amor then demolished the old warehouse in order to build a new 2-
storey structure. The problem is it will shut off the light and air that
come in through the window of the adjacent house owned by Jose.
Hence the latter files for prohibition claiming there is a negative
easement prohibiting Amor from constructing any structure at any
height that would block the window. Amor counters that there is no
easement. Moreover, since the death of testator was before the Civil
42 AbInitio| 2Exec DVOREF
Code took effect, the rules on easement do not apply.
ISSUE:
1. Whether or not there is an easement prohibiting Amor from
doing said construction.
2. Whether or not the Civil Code may be applied
RULING:
1. Yes. Easement are established by law or by will of the owners or
by title. Under Art. 624, there is title by the doctrine of apparent sign.
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 PROPERTY - FINALS
When the estate is subsequently owned by two different persons and
the “service” (it cannot be an easement before the transfer) is not
revoked in the title nor removed, an easement is established. The
Cortez case cannot be invoked by Amor because it involved
acquisition by prescription. Art. 624 is acquisition by title.
2. Amor failed to prove that the death of the testator occurred before
the effectivity of the Old Civil Code. The facts show that it happened
after the effectivity of the said code so the law on easement is already
applicable. In any case, even if we assume Amor’s supposition, the
law on easement was already integrated into the Spanish Law and in
fact, had been established by Jurisprudence. Therefore, Amor is
prohibitied from constructing the warehouse above the level of the
window.
DISSENTING OPINION OF OZAETA.
1) The Majority opinio committed a travesty on justice when it
ignored the evidence produced by Amor that the testator’s death
occurred before the effectivity of the Code.
2) Hence, the law on easement will not apply. Moreover, the Spanish
Law and the Partidas provided for only three ways of acquiring
easements: 1) contract 2) testament 3) prescription. There was no
provision similar to the doctrine of apparent sign.
3) There is no doctrine established by the Spanish Tribunal regarding
the doctrine.
4) In this modern age of flourescent lights and air conditioning
devices, the easement of light and view would be obsolete and
deterrent to economic progress especially when in the cities,
buildings are side to side with each other.
*Gargantos v. Yanon, 108 Phil 888
FACTS: Francisco Sanz was the former owner of a parcel of land
containing 888 square meters, with the buildings and improvements
thereon, situated in the poblacion of Romblon. He subdivided the lot
into three and then sold each portion to different persons. One
portion was purchased by Guillermo Tengtio who subsequently sold
it to Vicente Uy Veza. Another portion, with the house of strong
materials thereon, was sold in 1927 to Tan Yanon, respondent herein.
This house has on its northeastern side, doors and windows over-
looking the third portion, which, together with the camarin and small
building thereon, after passing through several hands, was finally
acquired by Juan Gargantos, petitioner herein.
On April 23, 1955, Gargantos applied to the Municipal Mayor
for a permit to demolish the roofing of the old camarin. The permit
having been granted, Gargantos tore down the roof of the camarin.
On May 11, 1955, Gargantos asked the Municipal Council of Romblon
for another permit, this time in order to construct a combined
residential house and warehouse on his lot. Tan Yanon opposed
approval of this application.
Because both the provincial fiscal and district engineer of
Romblon recommended granting of the building permit to Gargantos,
Tan Yanon filed against Gargantos an action to restrain him from
constructing a building that would prevent plaintiff from receiving
light and enjoying the view through the window of his house, unless
such building is erected at a distance of not less than three meters
from the boundary line between the lots of plaintiff and defendant.
43 AbInitio| 2Exec DVOREF
The kernel of petitioner's argument is that respondent never
acquired any easement either by title or by prescription. Assuredly,
there is no deed establishing an easement. Likewise, neither
petitioner nor his predecessors-in-interest have ever executed any
deed whereby they recognized the existence of the easement, nor
has there been final judgment to that effect. Invoking our decision
in Cortes vs. Yu-Tibo (2 Phil., 24), petitioner maintains that
respondent has not acquired an easement by prescription because he
has never formally forbidden petitioner from performing any act
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 PROPERTY - FINALS
which would be lawful without the easement, hence the prescriptive
period never started.
ISSUE: WON Yanon acquired easement by virtue of the deed
of sale.
RULING: Yes, it should be noted, however, that while the law
declares that the easement is to "continue" the easement actually
arises for the first time only upon alienation of either estate,
inasmuch as before that time there is no easement to speak of, there
being but one owner of both estates
It is obvious, however, that Article 538, O.C.C. (now Article
621, N.C.C.) and the doctrine in the Yu-Tibo case are
not applicable herein because the two estates, that now owned by
petitioner, and that owner by respondent, were formerly owned by
just one person, Francisco Sanz. It was Sanz who introduced
improvements on both properties. On that portion presently
belonging to respondent, he constructed a house in such a way that
the northeastern side thereof extends to the wall of the camarin on
the portion now belonging to petitioner. On said northeastern side of
the house, there are windows and doors which serve as passages for
light and view. These windows and doors were in existence when
respondent purchased the house and lot from Sanz. The deed sale
did not provide that the easement of light and view would not be
established. This then is precisely the case covered by Article 541,
O.C.C (now Article 624, N.C.C) which provides that the existence of
an apparent sign of easement between two estates, established by
the proprietor of both, shall be considered, if one of them is alienated,
as a title so that the easement will continue actively and passively,
unless at the time the ownership of the two estate is divided, the
contrary is stated in the deed of alienation of either of them, or the
sign is made to disappear before the instrument is executed. The
existence of the doors and windows on the northeastern side of the
aforementioned house, is equivalent to a title, for the visible and
permanent sign of an easement is the title that characterizes its
existence (Amor vs. Florentino, 74 Phil., 403). It should be noted,
however, that while the law declares that the easement is to
"continue" the easement actually arises for the first time only
upon alienation of either estate, inasmuch as before that time there
is no easement to speak of, there being but one owner of both estates
(Articles 530, O.C.C., now Articles 613, N.C.C).
We find that respondent Tan Yanon's property has an easement
of light and view against petitioner's property. By reason of his
easement petitioner cannot construct on his land any building unless
he erects it at a distance of not less than three meters from
the boundary line separating the two estates.
INTERMEDIATE DISTANCES
NCC
Article 677. 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 678. 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,
44 AbInitio| 2Exec DVOREF
to the conditions prescribed by such regulations. These prohibitions
cannot be altered or renounced by stipulation on the part of the
adjoining proprietors.
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.
Article 679. 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
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distance of at least two meters from the dividing line of the estates
 PROPERTY - FINALS
if tall trees are planted and at a distance of at least fifty centimeters
if shrubs or small trees are planted.
Every landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or tenement be
uprooted.
The provisions of this article also apply to trees which have
grown spontaneously.
Article 680. 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 681. Fruits naturally falling upon adjacent land belong to the
owner of said land.
LATERAL AND SUBJACENT SUPPORT
NCC
Article 684. No proprietor shall make such excavations upon his land
as to deprive any adjacent land or building of sufficient lateral or
subjacent support.
Article 685. Any stipulation or testamentary provision allowing
excavations that cause danger to an adjacent land or building shall
be void.
Article 686. 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 687. Any proprietor intending to make any excavation
contemplated in the three preceding articles shall notify all owners of
adjacent lands.
Pertaining to Waters
NATURAL DRAINAGE
NCC
Article 637. Lower estates are obliged to receive the waters which
naturally and without the intervention of man descend from the
higher estates, as well as the stones or earth which they carry with
them.
The owner of the lower estate cannot construct works which
will impede this easement; neither can the owner of the higher estate
make works which will increase the burden.
PD 1067 (Water Code) 50 Lower estates are obliged to receive the
waters which naturally and without the intervention of man flow from
the higher estate, as well as the stone or earth which they carry with
them.
The owner of the lower estate can not construct works which
will impede this natural flow, unless he provides an alternative
method of drainage; neither can the owner of the higher estate make
works which will increase this natural flow.
RIPARIAN BANKS
45 AbInitio| 2Exec DVOREF
NCC
Article 638. The banks of rivers and streams, even in case they are
of private ownership, are subject throughout their entire length and
within a zone of three meters along their margins, to the easement
of public use in the general interest of navigation, floatage, fishing
and salvage.
Estates adjoining the banks of navigable or floatable rivers are,
furthermore, subject to the easement of towpath for the exclusive
service of river navigation and floatage.
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 PROPERTY - FINALS
If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid.
Water Code 51 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 of recreation,
navigation, floatage, fishing and salvage. 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.
DRAINAGE OF BUILDINGS
NCC
Article 674. 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 675. 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 676. 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.
DAM
NCC
Article 639. Whenever for the diversion or taking of water from a
river or brook, or for the use of any other continuous or discontinuous
stream, it should be necessary to build a dam, and the person who
is to construct it is not the owner of the banks, or lands which must
support it, he may establish the easement of abutment of a dam,
after payment of the proper indemnity.
Article 647. One who for the purpose of irrigating or improving his
estate, has to construct a stop lock or sluice gate in the bed of the
stream from which the water is to be taken, may demand that the
owners of the banks permit its construction, after payment of
damages, including those caused by the new easement to such
owners and to the other irrigators.
RA 7942 (Mining Code) AN ACT INSTITUTING A NEW SYSTEM
OF MINERAL RESOURCES EXPLORATION, DEVELOPMENT,
UTILIZATION, AND CONSERVATION
46 AbInitio| 2Exec DVOREF
Declaration of Policy : All mineral resources in public and private
lands within the territory and exclusive economic zone of the Republic
of the Philippines are owned by the State. It shall be the responsibility
of the State to promote their rational exploration, development,
utilization and conservation through the combined efforts of
government and the private sector in order to enhance national
growth in a way that effectively safeguards the environment and
protect the rights of affected communities.
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 PROPERTY - FINALS
AQUEDUCT
NCC
Article 642. Any person who may wish to use upon his own estate
any water of which he can dispose shall have the right to make it flow
through the intervening estates, with the obligation to indemnify
their owners, as well as the owners of the lower estates upon which
the waters may filter or descend.
Article 643. One desiring to make use of the right granted in the
preceding article is obliged:
(1) To prove that he can dispose of the water and that it is sufficient
for the use for which it is intended;
(2) To show that the proposed right of way is the most convenient
and the least onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner
determined by the laws and regulations.
Article 644. The easement of aqueduct for private interest cannot
be imposed on buildings, courtyards, annexes, or outhouses, or on
orchards or gardens already existing.
Article 645. The easement of aqueduct for private interest cannot
be imposed on buildings, courtyards, annexes, or outhouses, or on
orchards or gardens already existing.
Article 646. For legal purposes, the easement of aqueduct shall be
considered as continuous and apparent, even though the flow of the
water may not be continuous, or its use depends upon the needs of
the dominant estate, or upon a schedule of alternate days or hours.
Water Code 13 Except as otherwise herein provided, no person,
including government instrumentalities or government-owned or
controlled corporations, shall appropriate water without a water right,
which shall be evidenced by a document known as a water permit.
Water right is the privilege granted by the government to
appropriate and use water.
Water Code 25 A holder of water permit may demand the
establishment of easements necessary for the construction and
maintenance of the works and facilities needed for the beneficial use
of the waters to be appropriated subject to the requirements of just
compensation and to the following conditions:
(a) That he is the owner, lessee, mortgagee or one having real right
over the land upon which he proposes to use water; and
(b) That the proposed easement is the most convenient and the least
onerous to the servient estate.
Easements relating to the appropriation and use of waters may
be modified by agreement of the contracting parties provided the
same is not contrary to law or prejudicial to third persons.
Water Code 46 When artificial means are employed to drain water
from higher to lower land, the owner of the higher land shall select
the routes and methods of drainage that will cause the minimum
damage to the lower lands, subject to the requirements of just
compensation.
Water Code 47 When the use, conveyance or storage of waters
results in damage to another, the person responsible for the damage
shall pay compensation.
47 AbInitio| 2Exec DVOREF
Water Code 48 When a water resources project interferes with the
access of landowner to a portion of his property or with the
conveyance of irrigation or drainage water, the person or agency
constructing the project shall bear the cost of construction and
maintenance of the bridges, flumes and other structures necessary
for maintaining access, irrigation, or drainage, in addition to paying
compensation for land and incidental damages.
Water Code 49 Any person having an easement for an aqueduct
may enter upon the servient land for the purpose of cleaning,
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 PROPERTY - FINALS
repairing or replacing the aqueduct or the removal of obstructions
therefrom.
Water Code 67 Any watershed or any area of land adjacent to any
surface water or overlying any ground water may declared by the
Department of Natural Resources as protected area Rules and
regulations may be promulgated by such Department to prohibit or
control such activities by the owners or occupants thereof within the
protected area which may damage or cause the deterioration of the
surface water or ground water or interfere with the investigation, use,
control, protection, management or administration of such waters.
SLUICE GATE
NCC
Article 647. One who for the purpose of irrigating or improving his
estate, has to construct a stop lock or sluice gate in the bed of the
stream from which the water is to be taken, may demand that the
owners of the banks permit its construction, after payment of
damages, including those caused by the new easement to such
owners and to the other irrigators.
Tanedo v. Bernad, 165 SCRA 86
FACTS: Private respondent Antonio Cardenas owned Lot 7501-A and
Lot 7501-B. Onthe said two lots, a septic tank was constructed for
the common use of the occupants of both lots. Cardenas sold Lot
7501-A to herein petitioner Tañedo and the other Lot 7501-
B was also mortgaged to Tañedo as a security for the payment of lo
an with anagreement that Cardenas would only sell Lot 7501-B
to him. However, said Lot 7501-Bwas sold to herein respondent
Spouses Romeo and Pacita Sim. Upon learning of thesaid sale,
Tañedo offered to redeem the property from Sim but the latter
refused.Instead, Sim blocked the sewage pipe connecting the
building of Eduardo Tañedo builton Lot 7501-A, to the septic tank in
Lot 7501-B. He also asked Tañedo to remove thatportion of his
building enroaching on Lot 7501-B. Tañedo was then constrained to
file anaction for legal redemption and damages invoking Article 1622
of the Civil Code. On theother hand, respondent Spouses claimed
they are the absolute owners of Lot 7501-Band that Eduardo Tañedo
has no right to redeem the land under Art. 1622 of the CivilCode as
the land sought to be redeemed is much bigger than the land owned
byTañedo.
ISSUE: Whether or not the petitioner’s right to continue to use
the septic tank, erectedon Lot 7501-B, ceased upon the
subdivision of the land and its subsequent sale todifferent
owners who do not have the same interest.
RULING: No. Applying Article 631 and 624 of the Civil Code, no
statement abolishing or extinguishing the easement of drainage was
mentioned in the deed of sale of Lot
7501- A to Eduardo Tañedo. Nor did Antonio Cardenas stop the use
of the drain pipe andseptic tank by the occupants of Lot 7501-A
before he sold said lot to Eduardo Tafiedo. Hence, the use of the
septic tank is continued by operation of law. Accordingly, thespouses
Romeo and Pacita Sim the new owners of the servient estate (Lot
7501- B),cannot impair, in any manner whatsoever, the use of the
servitude.
Ayala de Roxas v. City of Manila, 9 Phil 215
48 AbInitio| 2Exec DVOREF
Facts: Petitioner applied to the defendant city engineer for a license
to construct a terrace over “the strip of land 3 meters in width
between the main wall of her house and the edge of the said canal of
Sibacon or San Jacinto, which strip of land belongs exclusively to
her”; but the defendant refused to grant the license or authorize the
plaintiff to build the terrace, because, as the plaintiff has been
informed, the sole reason wherefore the license was denied is
because “the said defendants pretend to compel the plaintiff to leave
vacant and without any construction whatever thereon the said strip
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of 3 meters in width which is a portion of the ground belonging to
 PROPERTY - FINALS
her, in order to use the same as the wharf or public way so that the
plaintiff will only be able to use the said strip in the same manner
and for the same purposes as the public in general, thus losing the
enjoyment, use, and exclusive possession of the said strip of the
property which the plaintiff and the former owners thereof have
enjoyed quietly and peacefully during more than seventy years.
Additionally, it was agreed between both parties that the strip above
referred to had not been expropriated in whole or in part by the
municipality of Manila, and that neither had the latter offered any
compensation for the same to the owner thereof.
Issue: Whether the non-issuance of a license to the
petitioners is tantamount to a taking that requires just
compensation
Held: Yes. What the defendants have therefore done is to prevent
the plaintiffs from continuing to enjoy, use, and freely dispose of such
strip of their ground, as they had been doing up to the time when
they applied for a license to construct a terrace over said strip, and
the defendants prevented it with the intention of establishing a public
easement provided for in an ordinance of their own which they
consider is pursuant to the provisions of the Law of Waters and of the
Civil Code in force.
In the decision entered by the court on the 5th of May, 1906,
regarding the demurrer, the following was set forth:
The easement of a zone for public use, authorized by article 73
of the Law of Waters of 1866, is developed in articles 160 and 161,
inclusive, of said law; the general interest on behalf of which the
easement is supported is determined, for navigation, by articles 160
and 161; for flotation, by article 162; for salvage, by article 163; and
for fishing, by article 164; in all of them the owner of the riverside
property supports the easement “upon being previously indemnified
for loss and damage.” (Folio 41.)
Said zone for public use, the same as a towpath, is solely
available for the purposes of navigation, flotation, fishing, and
salvage, being closed to any other use which be attempted;
therefore, it is erroneous to pretend that the right of the owner of the
property bordering upon the stream can be reduced to the level of
the public right; on the contrary he should only be called upon to
bear those burdens which are in the general interest, but not without
prior, or subsequently indemnity. (Folio 43.)
If as affirmed in statement No. 4, and accepted by the
defendants, the Sibacon Creek is a canal — let us grant that it is
navigable, because it has been held by competent authority — and
that under the name of a public wharf, which is the largest in area, it
is desired to establish a towpath, which is the smallest, it must be
remembered that the law does not grant it along navigable canals
(art. 157), and, at all events, the establishment thereof must be
preceded by the corresponding indemnity. (Arts. 154 and 157.)
Under section 5 of the act of Congress of July 1, 1902, no
legislation shall be enacted in the Philippine Islands which shall
deprive any person of life, liberty, or property without due process of
law; and the due process of law in order to deprive a person of his
property is, according to the Code of Civil Procedure, reserved to the
judicial authority. The refusal to grant a license or the enactment of
an ordinance whereby a person may be deprived of property or
49 AbInitio| 2Exec DVOREF
rights, or an attempt thereat is made, without previously
indemnifying him therefor, is not, nor can it be, due process of law.
Considering that the easement intended to be established,
whatever may be the object thereof, is not merely a real right that
will encumber the property, but is one tending to prevent the
exclusive use of one portion of the same, by expropriating it for a
public use which, be it what it may, can not be accomplished unless
the owner of the property condemned or seized be previously and
duly indemnified, it is proper to protect the appellant by means of
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the remedy employed in such cases, as it is the only adequate
 PROPERTY - FINALS
remedy when no other legal action can be resorted to, against an
intent which is nothing short of an arbitrary restriction imposed by
the city by virtue of the coercive power with which the same is
invested. The question involved here is not the actual establishment
of an easement which might be objected to by an action in court, but
a mere act of obstruction, a refusal which is beyond the powers of
the city of Manila, because it is not simply a measure in connection
with building regulations, but is an attempt to suppress, without due
process of law, real rights which are attached to the right of
ownership.
The imposition of an easement over a 3-meter strip of the
plaintiff’s property could not legally be done without payment to it of
just compensation.
The Court commanded the defendant to issue said license.
Lunod v. Meneses, 77 Phil 128
FACTS: Nicolas Lunod, et al, residents Bulacan, Bulacan, filed a
written complaint against Higino Meneses
o they each owned and possessed farm lands situated May
Tunas and Balot, near a small lake named Calalaran
 defendant: owner of a fish-pond and a strip of land situated in
Paraanan, adjoining the Calalaran lake on one side, and
the River Taliptip on the other
 (from time immemorial, i.e., for more than twenty years before
1901), there was a statutory easement in favor of rice fields of
petitioners, permitting the flow of water over the said land in
Paraanan, which easement the said plaintiffs enjoyed until the
year 1901
o the water collected upon their lands and in the Calalaran
Lake could flow through Paraanan into the Taliptip River
 defendant, without any right or reason, converted the land in
Paraanan into a fish pond; dam and a bamboo net, prevented
the' free passage of the water through said place into the
Taliptip River
 lands of the plaintiff became flooded and damaged by the
stagnant waters, (land in Paraanan was only outlet) 
plantations destroyed
 plaintiff’s lands and Calalaran lake are located in places
relatively higher than sitio Paraanan where the land and fish
pond of the defendant are situated
 during rainy season, only outlet of rain water from land of
plaintiffs  Calalaran lake  Taliptio river is through the low
land of Paraanan
 on borderline between Calalaran and Paraanan  dam,
constructed by the community for the purpose of preventing
the salt waters from the Taliptip River, at high tide, from
flooding the land in Calalaran (this dam was opened when there
was heavy rainfall)
 defendant’s dam (now the 2nd dam) along the boundary of his
fish pond in Paraanan, thereby impeding the outlet
 Plaintiffs asked that defendant be ordered to remove and
destroy obstructions to free passage of water
ISSUE: WON easement existed
HELD
 owner of the lower lands can not erect works that will impede
50 AbInitio| 2Exec DVOREF
or prevent such an easement or charge, constituted and
imposed by the law upon his estate for the benefit of the higher
lands belonging to different owners; neither
can the latter do anything to increase or extend the easement
o A 530. easement is a charge imposed upon
one estate for the benefit of another estate belonging to
a different owner, and the realty in favor of which the
easement is established is called the dominant estate,
and the one charged with it the servient estate
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 PROPERTY - FINALS
 Lands of Paraanan are lower – subject to easement of receiving
and giving passage to waters from higher lands, and Calalran
lake
 Easement not constituted by agreement –STATUTORY
NATURE, imposed for the common public utility
o A 552. Lower estates must receive the waters which
naturally and without the intervention of man descend
from the higher estates, as well as the stone or earth
which they cairy with them. "Neither may the owner of
the lower estate construct works preventing
this easement, nor the one of the higher estate works
increasing the burden.
o A563. he establishment, extent, form, and conditions of
the easements of waters to which this section refers shall
be governed by the special law relating thereto in
everything not provided for in this code
o Special Law: Law of Waters of August 3,1866, article
111. Lands situated at a lower level are subject to
receive the waters that flow naturally, without the work
of man, from the higher lands together with the stone or
earth which they carry with them."
o A530, 552, 563, and Law of Waters of August 3,1866,
article 111
 Meneses, had no right to construct the works, nor the dam
which blocks the passage, through his lands and the outlet to
the Taliptip River, of the waters which flood the higher lands of
the plaintiffs; and having done so, to the detriment of the
easement charged on his estate, he has violated the law
 While A338 authorizes every owner to enclose his estate by
means of walls, ditches, fences or any other device, this right
is limited by the easement imposed upon his estate.
 His right to construct necessary works for fishpond subject to
obligation to respect statutory easement of waters upon his
property, i.e., to give passage to and allow the flow of the
waters descending from the Calalaran Lake and from the land
of the plaintiffs through his lands in Paraanan for their
discharge into the Taliptip River
Conclusion:
 Respondent ordered to emove any obstacle that may obstruct
the free passage of the waters
 abstain from impeding, in any manner, the flow of the waters
coming from the higher lands
Salazar v. Gutierrez, 33 SCRA 242
FACTS: Petitioner Crispino Salazar is the registered owner or Lot 433
situated in Tugo, Balanga, Bataan. Her lot is bounded by Lot No. 361,
NE; Sapang Tuyo, a public stream, SE; Lot 435, SW; and Lot 433,
NW. On the other hand private respondents ,Guillermo Gutierrez and
Damaso Mendoza, are the owners and lessee of Lot 433 respectively.
Private Guillermo Gutierrez acquired Lot 433 by inheritance which
was registered under the Torrens Title way back May 4, 1927 and
Transfer Certificate of Title No. 1059 was issued in his name on June
11, 1928. No annotation of any lien or encumbrance affecting the
land appears on either title.
Before the controversy arose, Sapang Tuyo was the source of
water for irrigation in its surrounding estates. It delivers water
through a dike which transversed Lots 431, 434, 433 and 436. A
51 AbInitio| 2Exec DVOREF
portion of the dike passed through Lot 433 and branched into a canal
which ran across Lot 433 to Lot 436. Sometime in February 1953,
private respondent Mendoza, who was then a lessee of Lot 433
demolished the said canal stopping the flow of water and deprived
petitioner Salazar of the irrigation facilities. She requested that the
canal be rebuild so that the flow of water could be restored, however
her efforts were in vain prompting her to file the present suit for the
damages she incurred.
CFI ruled in her favor, finding that the demolished canal had
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been in existence for more than thirty years and that the big dike
 PROPERTY - FINALS
from which it extended had been constructed for the use of Lot 436
as well as several other lots belonging to different owners, rendered
judgment on April 10, 1956, ordering the defendants to restore at
their expense the canal in question, to connect it with the canal found
in Lot 436 and to cause the corresponding annotation of the
encumbrance on Transfer Certificate of Title 1059 covering Lot 433;
and ordering the defendants to pay the plaintiff the sum of P1,360
annually beginning the agricultural year 1956-1957 until the
restoration of the canal, P4,700 as actual damages, P5,000 as moral
damages and P1,000 as attorney's fees, plus costs. However,
decision was reversed on appeal, rendering that easement of
aqueduct over Lot 433 is a voluntary one and that upon registration,
there was no annotation of said easement as a subsisting
encumbrance.
Hence this review by certiorari.
ISSUE:
Whether appellate court erred in holding that petitioner failed
to comply with the requisites laid down by Article 643 in order
to claim legal easement set forth in Article 642 of the New
Civil Code.
RULING: On the first requisite of Article 643 — that the petitioner
must prove that he can dispose of the water and that it is sufficient
for the use for which it is intended — there is the statement of the
trial court that the disputed canal had been in existence since the
Spanish regime, or at least prior to the original registration of Lot
433 in 1923, and that of the Court of Appeals itself confirmatory of
this second alternative finding. If, as thus found, the petitioner had
been using water from Sapang Tuyo to irrigate Lot 436 since she
acquired said lot in 1949, as the Municipality of Balanga had been
doing before her, and that such use had lasted continuously for at
least thirty years, it is a fair presumption that she had a right to do
so and that the water she could dispose of was sufficient for the
purpose. Indeed it would be a superfluity to require her to produce a
permit from the proper authorities, for even without it the right had
already become vested both under Article 194 of the Spanish Law of
Waters and under Article 504 of the Civil Code, which respectively
state:
ART. 194. Any person who has enjoyed the use of public waters for
a term of twenty years without objection on the part of the authorities
or of any third person, shall continue in its enjoyment, even though
he may not be able to show that he secured proper permission.
ART. 504. The use of public waters is acquired:
(1) By administrative concession;
(2) By prescription for ten years.
The extent of the rights and obligations of the use shall be that
established, in the first case, by the terms of the concession, and, in
the second case, by the manner and form, in which the waters have
been used.
The third requisite of Article 643 of the Civil Code refers to the
matter of indemnity to the owner of the servient estate. As correctly
pointed out by the petitioner it would be nigh impossible now to
present actual proof that such indemnity has been paid, considering
the number of years that have elapsed since the easement had first
come into existence and the subsequent changes in ownership of the
lots involved. It stands to reason, however, that if the easement had
52 AbInitio| 2Exec DVOREF
continued for so long in fact, not only before Lot 433 was registered
in 1923 but for thirty years thereafter, until cut off by the
respondents in 1953 the legal requirement in question must have
been complied with.
The other requisite of Article 643 is that "the proposed right of
way is the most convenient and the least onerous to third persons."
The Court of Appeals stated that the petitioner has not established
this fact, and that "her own evidence reveals that her lot is abutting
Sapang Tuyo on its southern boundary, where from she can easily
Page
and directly draw the water necessary to irrigate her land." This
 PROPERTY - FINALS
statement is an oversimplification. Proximity or abutment of a piece
of land to a stream does not necessarily carry with it the conclusion
that water may conveniently be drawn directly therefrom for
irrigation. In the first place, the petitioner has pointed out in her brief,
without contradiction by the respondents, that the portion of her land
which abuts Sapang Tuyo is precipice. Secondly, the trial court made
an ocular inspection of the premises and observed that the eastern
and northeastern portions of Lot 436 are lower than the
southwestern, western and northwestern (the point where Lot 436
adjoins Lot 433) portions of the same. Finally, it would appear from
the observation made by the same court that the demolished canal
is part of a system of conduits used to irrigate the lands of the
petitioner and the respondents as well as the surrounding estates
belonging to other owners, and that this system of conduits is of a
permanent nature.
Relova v. Lavarez, 9 Phil 149
The enjoyment of the plaintiff of an easement for the
maintenance of an irrigation aqueduct and a dam on the lands
of defendant for a period of more than 20 years confers title
thereto upon the plaintiff by virtue of prescription and
burdens the lands of the defendants with a corresponding
servitude.
FACTS: The plaintiff is the owner of a tract of rice land which is
cultivated with the aid of water brought from a river through an
aqueduct which passes over the land of the defendants. This was by
virtue of an easement the use of which had been with the plaintiff for
more than thirty years. On the land of the defendants there was a
dam with a small gate or aperture in its face which was used to
control the flow of the water in the aqueduct, by permitting a greater
or less quantity to escape in a drainage ditch, also on the land of the
defendants.
One of the defendants completely destroyed the dam and let
all the water escape by the drainage ditch, so that none flowed on
the land of the plaintiff. At the time when the dam was destroyed the
plaintiff had some five cavanes of land prepared to plant rice, but
because of the escape of the water resulting from the destruction of
the dam he was unable to raise his crop. Defendants claim that the
plaintiff is not the owner of any lands watered by the aqueduct of the
class known as padagat (rice lands planted in May). It was also
alleged that the plaintiff suffered no damage by the destruction of
the dam, because all the lands of plaintiff which are cultivated with
the aid of water from the aqueduct are of the class known as
binanbang (rice lands planted in August or September), and the
destruction of the dam in May and the consequent failure of water in
the aqueduct at that period did not, and could not, damage the
plaintiff or interfere with the proper cultivation of his lands.
Lastly, defendants say that that the evidence on record does
not establish the existence of the servitude in the lands of the
defendants in favor of the lands of the plaintiff landowner for the
maintenance of the aqueduct and dam in question.
ISSUE:
Whether or not there was a valid servitude between the
parties.
53 AbInitio| 2Exec DVOREF
HELD: Save for the issue on the existence of the servitude, all other
allegations of defendants were outrightly disregarded as they were
clearly unmeritorious in light of the findings of fact. However, the
Court ruled that there was a valid easement in light of the fact that
the aqueduct and the dam had been in existence for more than 30
years, during which time the plaintif had exercised its use. It was
alleged that no benefit was granted to the plaintiff since his
(plaintiff's) land is situated higher than defendants' land. Moreover,
even if defendants had the right to open the gates of the dam to
prevent destructive overflow upon their land, this does not give them
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the right to stop the flow of water altogether.
 PROPERTY - FINALS
Easement against nuisance
NCC
Article 682. 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 683. 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.
Special Easements
NCC
Mining Code 75 Easement Right. - When mining areas are so
situated that for purposes of more convenient mining operations it is
necessary to build, construct or install on the mining area or lands
owned, occupied or leased by other persons, such infrastructure as
roads, railroads, mills, waste dump sites, tailings ponds, warehouses,
staging or storage areas and port facilities, tramways, runways,
airports, electric transmission, telephone or telegraph lines, dams
and their normal flood and catchment areas, sites for water wells,
ditches, canals, new river beds, pipelines, flumes, cuts, shafts,
tunnels, or mills, the contractor, upon payment of just compensation
shall be entitled to enter and occupy said mining areas or lands.
CHARACTERISTICS
NCC
Article 617. Easements are inseparable from the estate to which
they actively or passively belong.
Article 618. Easements are indivisible. If the servient estate is
divided between two or more persons, the easement is not modified,
and each of them must bear it on the part which corresponds to him.
If it is the dominant estate that is divided between two or more
persons, each of them may use the easement in its entirety, without
changing the place of its use, or making it more burdensome in any
other way.
KINDS
NCC
Article 613. An easement or servitude is an encumbrance imposed
upon an immovable for the benefit of another immovable belonging
to a different owner.
The immovable in favor of which the easement is established
is called the dominant estate; that which is subject thereto, the
servient estate.
Article 614. Servitudes may also be established for the benefit of a
community, or of one or more persons to whom the encumbered
estate does not belong.
Article 615. Easements may be continuous or discontinuous,
apparent or nonapparent.
Continuous easements are those the use of which is or may be
incessant, without the intervention of any act of man.
54 AbInitio| 2Exec DVOREF
Discontinuous easements are those which are used at intervals
and depend upon the acts of man.
Apparent easements are those which are made known and are
continually kept in view by external signs that reveal the use and
enjoyment of the same.
Nonapparent easements are those which show no external
indication of their existence.
Page
Article 616. Easements are also positive or negative.
 PROPERTY - FINALS
A positive easement is one which imposes upon the owner of
the servient estate the obligation of allowing something to be done
or of doing it himself, and a negative easement, that which prohibits
the owner of the servient estate from doing something which he could
lawfully do if the easement did not exist.
Article 619. Easements are established either by law or by the will
of the owners. The former are called legal and the latter voluntary
easements.
Article 634. Easements imposed by law have for their object either
public use or the interest of private persons.
Article 636. Easements established by law in the interest of private
persons or for private use shall be governed by the provisions of this
Title, without prejudice to the provisions of general or local laws and
ordinances for the general welfare.
These easements may be modified by agreement of the
interested parties, whenever the law does not prohibit it or no injury
is suffered by a third person.
Article 688. 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.
WATERS
Ownership
NCC
Article 502. The following are of public dominion:
(1) Rivers and their natural beds;
(2) Continuous or intermittent waters of springs and brooks running
in their natural beds and the beds themselves;
(3) Waters rising continuously or intermittently on lands of public
dominion;
(4) Lakes and lagoons formed by Nature on public lands, and their
beds;
(5) Rain waters running through ravines or sand beds, which are
also of public dominion;
(6) Subterranean waters on public lands;
(7) Waters found within the zone of operation of public works, even
if constructed by a contractor;
(8) Waters rising continuously or intermittently on lands belonging
to private persons, to the State, to a province, or to a city or a
municipality from the moment they leave such lands;
(9) The waste waters of fountains, sewers and public
establishments.
Article 503. The following are of private ownership:
(1) Continuous or intermittent waters rising on lands of private
ownership, while running through the same;
(2) Lakes and lagoons, and their beds, formed by Nature on such
lands;
(3) Subterranean waters found on the same;
(4) Rain waters falling on said lands, as long as they remain within
the boundaries;
(5) The beds of flowing waters, continuous or intermittent, formed
by rain water, and those of brooks, crossing lands which are not of
public dominion.
In every drain or aqueduct, the water, bed, banks and floodgates
55 AbInitio| 2Exec DVOREF
shall be considered as an integral part of the land of building for
which the waters are intended. The owners of lands, through which
or along the boundaries of which the aqueduct passes, cannot claim
ownership over it, or any right to the use of its bed or banks, unless
the claim is based on titles of ownership specifying the right or
ownership claimed.
Water Code 5 The following belong to the State:
(a) Rivers and their natural beds;
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 PROPERTY - FINALS
(b) Continuous or intermittent waters of springs and brooks running
in their natural beds and the beds themselves;
(c) Natural lakes and lagoons;
(d) All other categories of surface waters such as water flowing over
lands, water from rainfall whether natural, or artificial, and water
from agriculture runoff, seepage and drainage;
(e) Atmospheric water;
(f) Subterranean or ground waters; and,
(g) Seawater.
Water Code 6 The following waters found on private lands belong
to the State:
(a) Continuous or intermittent waters rising on such lands;
(b) Lakes and lagoons naturally occuring on such lands;
(c) Rain water falling on such lands;
(d) Subterranean or ground waters; and,
(e) Water in swamps and marshes.
The owner of the land where the water is found may use the same
for domestic purposes without securing a permit, provided that
such use shall be registered, when required by the Council. The
Council, however, may regulate such when there is wastage, or in
times of emergency.
Use of Public Waters
NCC
Article 504. The use of public waters is acquired:
(1) By administrative concession;
(2) By prescription for ten years.
The extent of the rights and obligations of the use shall be that
established, in the first case, by the terms of the concession, and, in
the second case, by the manner and form in which the waters have
been used.
Article 505. Every concession for the use of waters is understood to
be without prejudice to third persons.
Article 506. The right to make use of public waters is extinguished
by the lapse of the concession and by non-user for five years.
Water Code
Article 31. Preference in the development of water resources shall
consider security of the State, multiple use, beneficial effects,
adverse effects and costs of development.
Article 32. The utilization of subterranean or ground water shall be
coordinated with that of surface waters such as rivers, streams,
springs and lakes, so that a superior right in one not adversely
affected by an inferior right in the other.
For this purpose the Council shall promulgate rules and
regulations and declare the existence of control areas for the
coordinated development, protection, and utilization of subterranean
or ground water and surface waters.
Control area is an area of land where subterranean or ground
56 AbInitio| 2Exec DVOREF
water and surface water are so interrelated that withdrawal and use
in one similarly affects the other. The boundary of a control area may
be altered from time to time, as circumstances warrant.
Article 33. Water contained in open canals, aqueducts or reservoirs
of private persons may be used by any person for domestic purpose
or for watering plants as long as the water is withdrawn by manual
methods without checking the stream or damaging the canal,
aqueduct or reservoir; Provided, That this right may be restricted by
the owner should it result in loss or injury to him.
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 PROPERTY - FINALS
Article 34. A water permittee or appropriator may use any
watercourse to convey water to another point in the watercourse for
the purpose stated in a permit and such water may be diverted or
recaptured at that point by said permittee in the same amount less
allowance for normal losses in transit.
Article 35. Works for the storage, diversion, distribution and
utilization of water resources shall contain adequate provision for the
prevention and control of diseases that may be induced or spread by
such works when required by the Council.
Article 36. When the reuse of waste water is feasible, it shall be
limited as much as possible, to such uses other than direct human
consumption. No person or agency shall distribute such water for
public consumption until it is demonstrated that such consumption
will not adversely affect the health and safety of the public.
Article 37. In the construction and operation of hydraulic works, due
consideration shall be given to the preservation of scenic places and
historical relics and, in addition to the provisions of existing laws, no
works that would required the destruction or removal of such places
or relics shall be undertaken without showing that the distribution or
removal is necessary and unaviodable.
Article 38. Authority for the construction of dams, bridges and other
structures across of which may interfere with the flow of navigable
or flotable waterways shall first be secured from the Department of
Public Works, Transportation and Communications.
Article 39. Except in cases of emergency to save life or property,
the construction or repair of the following works shall be undertaken
only after the plans and specifications therefor, as may be required
by the Council, are approved by the proper government agency;
dams for the diversion or storage of water; structures for the use of
water power, installations for the utilization of subterranean or
ground water and other structures for utilization of water resources.
Article 40. No excavation for the purpose of emission of a hot spring
or for the enlargement of the existing opening thereof shall be made
without prior permit.
Any person or agency who intends to develop a hot spring for human
consumption must first obtain a permit from the Department of
Health.
Article 41. No person shall develop a stream, lake, or spring for
recreational purposes without first securing a permit from the
Council.
Article 42. Unless-otherwise ordered by the President of the
Philippines and only in time of national calamity or emergency, no
person shall induce or restrain rainfall by any method such as cloud
seeding without a permit from the proper government emergency.
Article 43. No person shall raise or lower the water level of a river
stream, lake, lagoon, or marsh nor drain the same without a permit.
Article 44. Drainage systems shall be so constructed that their
outlets are rivers, lakes, the sea, natural bodies of water, or such
other water course as may be approved by the proper government
agency.
Article 45. When a drainage channel is constructed by a number of
persons for their common benefit, the cost of construction and
maintenance of the channel shall be borne by each in proportion to
the benefits drived.
Article 46. When artificial means are employed to drain water from
higher to lower land, the owner of the higher land shall select the
57 AbInitio| 2Exec DVOREF
routes and methods of drainage that will cause the minimum damage
to the lower lands, subject to the requirements of just compensation.
Article 47. When the use, conveyance or storage of waters results
in damage to another, the person responsible for the damage shall
pay compensation.
Article 48. When a water resources project interferes with the
access of landowner to a portion of his property or with the
conveyance of irrigation or drainage water, the person or agency
constructing the project shall bear the cost of construction and
maintenance of the bridges, flumes and other structures necessary
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 PROPERTY - FINALS
for maintaining access, irrigation, or drainage, in addition to paying
compensation for land and incidental damages.
Article 49. Any person having an easement for an aqueduct may
enter upon the servient land for the purpose of cleaning, repairing or
replacing the aqueduct or the removal of obstructions therefrom.
Article 50. Lower estates are obliged to receive the waters which
naturally and without the intervention of man flow from the higher
estate, as well as the stone or earth which they carry with them.
The owner of the lower estate can not construct works which
will impede this natural flow, unless he provides an alternative
method of drainage; neither can the owner of the higher estate make
works which will increase this natural flow.
Article 51. 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 of recreation,
navigation, floatage, fishing and salvage. 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.
Article 52. The establishment, extent, form, and conditions of
easements of water not expressly determined by the provisions of
this Code shall be governed by the provisions of the Civil Code.
Waters in Private Property
NCC
Article 507. The owner of a piece of land on which a spring or brook
rises, be it continuous or intermittent, may use its waters while they
run through the same, but after the waters leave the land they shall
become public, and their use shall be governed by the Special Law of
Waters of August 3, 1866, and by the Irrigation Law.
Article 508. The private ownership of the beds of rain waters does
not give a right to make works or constructions which may change
their course to the damage of third persons, or whose destruction,
by the force of floods, may cause such damage.
Article 509. No one may enter private property to search waters or
make use of them without permission from the owners, except as
provided by the Mining Law.
Article 510. The ownership which the proprietor of a piece of land
has over the waters rising thereon does not prejudice the rights which
the owners of lower estates may have legally acquired to the use
thereof.
Article 511. Every owner of a piece of land has the right to construct
within his property, reservoirs for rain waters, provided he causes no
damage to the public or to third persons.
Water Code
Article 5. The following belong to the State:
(a) Rivers and their natural beds;
(b) Continuous or intermittent waters of springs and brooks running
in their natural beds and the beds themselves;
(c) Natural lakes and lagoons;
58 AbInitio| 2Exec DVOREF
(d) All other categories of surface waters such as water flowing over
lands, water from rainfall whether natural, or artificial, and water
from agriculture runoff, seepage and drainage;
(e) Atmospheric water;
(f) Subterranean or ground waters; and,
(g) Seawater.
Article 6. The following waters found on private lands belong to the
State:
(a) Continuous or intermittent waters rising on such lands;
(b) Lakes and lagoons naturally occuring on such lands;
Page
(c) Rain water falling on such lands;
 PROPERTY - FINALS
(d) Subterranean or ground waters; and,
(e) Water in swamps and marshes.
The owner of the land where the water is found may use the
same for domestic purposes without securing a permit, provided that
such use shall be registered, when required by the Council. The
Council, however, may regulate such when there is wastage, or in
times of emergency.
Article 13. Except as otherwise herein provided, no person,
including government instrumentalities or government-owned or
controlled corporations, shall appropriate water without a water right,
which shall be evidenced by a document known as a water permit.
Water right is the privilege granted by the government to
appropriate and use water.
Article 14. Subject to the provisions of this Code concerning the
control, protection, conservation, and regulation of the appropriation
and use of waters, any person may appropriate or use natural bodies
of water without securing a water permit for any of the following:
(a) Appropriation of water by means of handcarried receptacles; and
(b) Bathing or washing, watering or dipping of domestic or farm
animals, and navigation of watercrafts or transportation of logs and
other objects by flotation.
Article 25. A holder of water permit may demand the establishment
of easements necessary for the construction and maintenance of the
works and facilities needed for the beneficial use of the waters to be
appropriated subject to the requirements of just compensation and
to the following conditions:
(a) That he is the owner, lessee, mortgagee or one having real right
over the land upon which he proposes to use water; and
(b) That the proposed easement is the most convenient and the least
onerous to the servient estate.
Easements relating to the appropriation and use of waters may
be modified by agreement of the contracting parties provided the
same is not contrary to law or prejudicial to third persons.
Article 32. The utilization of subterranean or ground water shall be
coordinated with that of surface waters such as rivers, streams,
springs and lakes, so that a superior right in one not adversely
affected by an inferior right in the other.
For this purpose the Council shall promulgate rules and
regulations and declare the existence of control areas for the
coordinated development, protection, and utilization of subterranean
or ground water and surface waters.
Control area is an area of land where subterranean or ground
water and surface water are so interrelated that withdrawal and use
in one similarly affects the other. The boundary of a control area may
be altered from time to time, as circumstances warrant.
Article 41. No person shall develop a stream, lake, or spring for
recreational purposes without first securing a permit from the
Council.
Subterranean Waters
59 AbInitio| 2Exec DVOREF
NCC
Article 512. Only the owner of a piece of land, or another person
with his permission, may make explorations thereon for subterranean
waters, except as provided by the Mining Law.
Explorations for subterranean waters on lands of public
dominion may be made only with the permission of the administrative
authorities.
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 PROPERTY - FINALS
Article 513. Waters artificially brought forth in accordance with the
Special Law of Waters of August 3, 1866, belong to the person who
brought them up.
Article 514. When the owner of waters artificially brought to the
surface abandons them to their natural course, they shall become of
public dominion.
Water Code
Article 8. Water legally appropriated shall be subject to the control
of the appropriator from the moment it reaches the appropriator's
canal or aqueduct leading to the place where the water will be used
or stored and, thereafter, so long as it is being beneficially used for
the purposes for which it was appropriated.
Article 9. Waters may be appropriated and used in accordance with
the provisions of this Code.
Appropriation of water, as used in this Code, is the acquisition
of rights over the use of waters or the taking or diverting of waters
from a natural source in the manner and for any purpose allowed by
law.
Article 13. Except as otherwise herein provided, no person,
including government instrumentalities or government-owned or
controlled corporations, shall appropriate water without a water right,
which shall be evidenced by a document known as a water permit.
Water right is the privilege granted by the government to
appropriate and use water.
Article 17. The right to the use of water is deemed acquired as of
the date of filing of the application for a water permit in case of
approved permits, or as of the date of actual use in a case where no
permit is required.
Article 32. The utilization of subterranean or ground water shall be
coordinated with that of surface waters such as rivers, streams,
springs and lakes, so that a superior right in one not adversely
affected by an inferior right in the other.
For this purpose the Council shall promulgate rules and
regulations and declare the existence of control areas for the
coordinated development, protection, and utilization of subterranean
or ground water and surface waters.
Control area is an area of land where subterranean or ground
water and surface water are so interrelated that withdrawal and use
in one similarly affects the other. The boundary of a control area may
be altered from time to time, as circumstances warrant.
Article 39. Except in cases of emergency to save life or property,
the construction or repair of the following works shall be undertaken
only after the plans and specifications therefor, as may be required
by the Council, are approved by the proper government agency;
dams for the diversion or storage of water; structures for the use of
water power, installations for the utilization of subterranean or
ground water and other structures for utilization of water resources.
Article 64. The Council shall approve the manner, location, depth,
and spacing in which borings for subterranean or ground water may
be made, determine the requirements for the registration of every
boring or alteration to existing borings as well as other control
60 AbInitio| 2Exec DVOREF
measures for the exploitation of subterranean or ground water
resources, and in coordination with the Professional Regulation
Commission prescribe the qualifications of those who would drill such
borings.
No person shall drill a well without prior permission from the
Council.
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 PROPERTY - FINALS
General Provisions
NCC
Article 515. The owner of a piece of land on which there are
defensive works to check waters, or on which, due to a change of
their course, it may be necessary to reconstruct such works, shall be
obliged, at his election, either to make the necessary repairs or
construction himself, or to permit them to be done, without damage
to him, by the owners of the lands which suffer or are clearly exposed
to suffer injury.
Article 516. The provisions of the preceding article are applicable to
the case in which it may be necessary to clear a piece of land of
matter, whose accumulation or fall may obstruct the course of the
waters, to the damage or peril of third persons.
Article 517. All the owners who participate in the benefits arising
from the works referred to in the two preceding articles, shall be
obliged to contribute to the expenses of construction in proportion to
their respective interests. Those who by their fault may have caused
the damage shall be liable for the expenses.
Article 518. All matters not expressly determined by the provisions
of this Chapter shall be governed by the Special Law of Waters of
August 3, 1866, and by the Irrigation Law.
Water Code
Article 1. This Code shall be known as The Water Code of the
Philippines.
Article 2. The objectives of this Code are:
(a) To establish the basic principles and framework relating to the
appropriation, control and conservation of water resources to achieve
the optimum development and rational utilization of these resources;
(b) To define the extent of the rights and obligations of water users
and owners including the protection and regulation of such rights;
(c) To adopt a basic law governing the ownership, appropriation,
utilization, exploitation, development, conservation and protection of
water resources and rights to land related thereto; and
(d) To identify the administrative agencies which will enforce this
Code.
Article 3. The underlying principles of this code are:
(a) All waters belong to the State.
(b) All waters that belong to the State can not be the subject to
acquisitive prescription.
(c) The State may allow the use or development of waters by
administrative concession.
(d) The utilization, exploitation, development, conservation and
protection of water resources shall be subject to the control and
regulation of the government through the National Water Resources
Council, hereinafter referred to as the Council.
(e) Preference in the use and development of waters shall consider
current usages and be responsive to the changing needs of the
country.
Article 4. Waters, as used in this Code, refers to water under the
grounds, water above the ground, water in the atmosphere and the
waters of the sea within the territorial jurisdiction of the Philippines.
Article 5. The following belong to the State:
(a) Rivers and their natural beds;
(b) Continuous or intermittent waters of springs and brooks running
in their natural beds and the beds themselves;
61 AbInitio| 2Exec DVOREF
(c) Natural lakes and lagoons;
(d) All other categories of surface waters such as water flowing over
lands, water from rainfall whether natural, or artificial, and water
from agriculture runoff, seepage and drainage;
(e) Atmospheric water;
(f) Subterranean or ground waters; and,
(g) Seawater.
Article 6. The following waters found on private lands belong to the
State:
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(a) Continuous or intermittent waters rising on such lands;
 PROPERTY - FINALS
(b) Lakes and lagoons naturally occuring on such lands;
(c) Rain water falling on such lands;
(d) Subterranean or ground waters; and,
(e) Water in swamps and marshes.
The owner of the land where the water is found may use the same
for domestic purposes without securing a permit, provided that such
use shall be registered, when required by the Council. The Council,
however, may regulate such when there is wastage, or in times of
emergency.
Article 7. Subject to the provisions of this Code, any person who
captures or collects water by means of cisterns, tanks, or pools shall
have exclusive control over such water and the right to dispose of
the same.
Article 8. Water legally appropriated shall be subject to the control
of the appropriator from the moment it reaches the appropriator's
canal or aqueduct leading to the place where the water will be used
or stored and, thereafter, so long as it is being beneficially used for
the purposes for which it was appropriated.
Article 9. Waters may be appropriated and used in accordance with
the provisions of this Code.
Appropriation of water, as used in this Code, is the acquisition of
rights over the use of waters or the taking or diverting of waters from
a natural source in the manner and for any purpose allowed by law.
Article 10. Water may be appropriated for the following purposes:
(a) Domestic
(b) Municipal
(c) Irrigation
(d) Power generation
(e) Fisheries
(f) Livestock raising
(g) Industrial
(h) Recreational, and
(i) Other purposes
Use of water for domestic purposes is the utilization of water
for drinking, washing, bathing, cooking or other household needs,
home gardens, and watering of lawns or domestic animals.
Use of water for municipal purposes is the utilization of water
for supplying the water requirements of the community.
Use of water for irrigation is the utilization of water for
producing agricultural crops.
Use of water for power generation is the utilization of water for
producing electrical or mechanical power.
Use of water for fisheries is the utilization of water for the
propagation and culture of fish as a commercial enterprise.
Use of water for livestock raising is the utilization of water for
large herds or flocks of animals raised as a commercial enterprise.
Use of water for industrial purposes is the utilization of water
in factories, industrial plants and mines, including the use of water
as an ingredient of a finished product.
Use of water for recreational purposes is the utilization of water
62 AbInitio| 2Exec DVOREF
for swimming pools, bath houses, boating, water skiing, golf courses
and other similar facilities in resorts and other places of recreation.
Article 11. The State, for reasons of public policy, may declare
waters not previously appropriated, in whole or in part, exempt from
appropriation for any or all purposes and, thereupon, such waters
may not be appropriated for those purposes.
Article 12. Waters appropriated for a particular purpose may be
applied for another purpose only upon prior approval of the Council
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and on condition that the new use does not unduly prejudice the
 PROPERTY - FINALS
rights of other permittees, or require an increase in the volume of
water.
Article 15. Only citizens of the Philippines, of legal age, as well as
juridical persons, who are duly qualified by law to exploit and develop
water resources, may apply for water permits.
Article 16. Any person who desires to obtain a water permit shall
file an application with the Council who shall make known said
application to the public for any protests.
In determining whether to grant or deny an application, the
Council shall consider the following: protests filed, if any; prior
permits granted; the availability of water; the water supply needed
for beneficial use; possible adverse effects; land-use economics; and
other relevant factors.
Upon approval of an application, a water permit shall be issued
and recorded.
Article 18. All water permits granted shall be subject to conditions
of beneficial use, adequate standards of design and construction, and
such other terms and conditions as may be imposed by the Council.
Such permits shall specify the maximum amount of water
which may be diverted or withdrawn, the maximum rate of diversion
or withdrawal, the time or times during the year when water may be
diverted or withdrawn, the points or points of diversion or location of
wells, the place of use, the purposes of which water may be used and
such other requirements the Council deems desirable.
Article 19. Water rights may be leaded or transferred in whole or in
part to another person with prior approval of the Council, after due
notice and hearing.
Article 20. The measure and limit of appropriation of water shall be
beneficial use.
Beneficial use of water is the utilization of water in the right amount
during the period that the water is needed for producing the benefits
for which the water is appropriated.
Article 21. Standards of beneficial use shall be prescribed by the
council for the appropriator of water for different purposes and
conditions, and the use of waters which are appropriated shall be
measured and controlled in accordance therewith.
Excepting for domestic use, every appropriator of water shall
maintain water control and measuring devices, and keep records of
water withdrawal. When required by the Council, all appropriators of
water shall furnish information on water use.
Article 22. Between two or more appropriators of water from the
same sources of supply, priority in time of appropriation shall give
the better right, except that in times of emergency the use of water
for domestic and municipal purposes shall have a better right over all
other uses; Provided, the where water shortage is recurrent and the
appropriator for municipal use has a lower priority in time of
appropriation, then it shall be his duty to find an alternative source
of supply in accordance with conditions prescribed by the Council.
Article 23. Priorities may be altered on grounds of greater beneficial
use, multi-purpose use, and other similar grounds after due notice
and hearing, subject to payment of compensation is proper cases.
63 AbInitio| 2Exec DVOREF
Article 24. A water right shall be exercised in such a manner that
the rights of third persons or of other appropriators are not
prejudiced thereby.
Article 26. Where water shortage is recurrent, the use of the water
pursuant to a permit may, in the interest of equitable distribution of
the benefits among legal appropriators, reduce after due notice and
hearing.
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 PROPERTY - FINALS
Article 31. Preference in the development of water resources shall
consider security of the State, multiple use, beneficial effects,
adverse effects and costs of development.
Article 33. Water contained in open canals, aqueducts or reservoirs
of private persons may be used by any person for domestic purpose
or for watering plants as long as the water is withdrawn by manual
methods without checking the stream or damaging the canal,
aqueduct or reservoir; Provided, That this right may be restricted by
the owner should it result in loss or injury to him.
Article 34. A water permittee or appropriator may use any
watercourse to convey water to another point in the watercourse for
the purpose stated in a permit and such water may be diverted or
recaptured at that point by said permittee in the same amount less
allowance for normal losses in transit.
Article 35. Works for the storage, diversion, distribution and
utilization of water resources shall contain adequate provision for the
prevention and control of diseases that may be induced or spread by
such works when required by the Council.
Article 36. When the reuse of waste water is feasible, it shall be
limited as much as possible, to such uses other than direct human
consumption. No person or agency shall distribute such water for
public consumption until it is demonstrated that such consumption
will not adversely affect the health and safety of the public.
Article 37. In the construction and operation of hydraulic works, due
consideration shall be given to the preservation of scenic places and
historical relics and, in addition to the provisions of existing laws, no
works that would required the destruction or removal of such
places or relics shall be undertaken without showing that the
distribution or removal is necessary and unaviodable.
Article 38. Authority for the construction of dams, bridges and other
structures across of which may interfere with the flow of navigable
or flotable waterways shall first be secured from the Department of
Public Works, Transportation and Communications.
Article 40. No excavation for the purpose of emission of a hot spring
or for the enlargement of the existing opening thereof shall be made
without prior permit.
Any person or agency who intends to develop a hot spring for human
consumption must first obtain a permit from the Department of
Health.
Article 41. No person shall develop a stream, lake, or spring for
recreational purposes without first securing a permit from the
Council.
Article 42. Unless-otherwise ordered by the President of the
Philippines and only in time of national calamity or emergency, no
person shall induce or restrain rainfall by any method such as cloud
seeding without a permit from the proper government emergency.
Article 43. No person shall raise or lower the water level of a river
stream, lake, lagoon, or marsh nor drain the same without a permit.
Article 44. Drainage systems shall be so constructed that their
64 AbInitio| 2Exec DVOREF
outlets are rivers, lakes, the sea, natural bodies of water, or such
other water course as may be approved by the proper government
agency.
Article 45. When a drainage channel is constructed by a number of
persons for their common benefit, the cost of construction and
maintenance of the channel shall be borne by each in proportion to
the benefits drived.
Article 46. When artificial means are employed to drain water from
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higher to lower land, the owner of the higher land shall select the
 PROPERTY - FINALS
routes and methods of drainage that will cause the minimum damage
to the lower lands, subject to the requirements of just compensation.
Article 47. When the use, conveyance or storage of waters results
in damage to another, the person responsible for the damage shall
pay compensation.
Article 48. When a water resources project interferes with the
access of landowner to a portion of his property or with the
conveyance of irrigation or drainage water, the person or agency
constructing the project shall bear the cost of construction and
maintenance of the bridges, flumes and other structures necessary
for maintaining access, irrigation, or drainage, in addition to paying
compensation for land and incidental damages.
Article 49. Any person having an easement for an aqueduct may
enter upon the servient land for the purpose of cleaning, repairing or
replacing the aqueduct or the removal of obstructions therefrom.
Article 50. Lower estates are obliged to receive the waters which
naturally and without the intervention of man flow from the higher
estate, as well as the stone or earth which they carry with them.
The owner of the lower estate can not construct works which will
impede this natural flow, unless he provides an alternative method
of drainage; neither can the owner of the higher estate make works
which will increase this natural flow.
Article 51. 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 of recreation,
navigation, floatage, fishing and salvage. 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.
Article 52. The establishment, extent, form, and conditions of
easements of water not expressly determined by the provisions of
this Code shall be governed by the provisions of the Civil Code.
Article 53. To promote the best interest and the coordinated
protection of flood plain lands, the Secretary of Public Works,
Transportation and Communications may declare flood control areas
and promulgate guidelines for governing flood plain management
plans in these areas.
Article 54. In declared flood control areas, rules and regulations may
be promulgated to prohibit or control activities that may damage or
cause deterioration or lakes and dikes, obstruct the flow of water,
change the natural flow of the river, increase flood losses or
aggravate flood problems.
Article 55. The government may construct necessary flood control
structures in declared flood control areas, and for this purpose it shall
have a legal easement as wide as may be needed along and adjacent
to the river bank and outside of the bed or channel of the river.
Article 56. River beds, sand bars and tidal flats may not be
cultivated except upon prior permission from the Secretary of the
Department of Public Works, Transportation and Communication and
such permission shall not be granted where such cultivation obstructs
65 AbInitio| 2Exec DVOREF
the flow of water or increase flood levels so as to cause damage to
other areas.
Article 57. Any person may erect levees or revetments to protect
his property from flood, encroachment by the river or change in the
course of the river, provided that such constructions does not cause
damage to the property of another.
Article 58. When a river or stream suddenly changes its course to
traverse private lands,
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 PROPERTY - FINALS
the owners of the affected lands may not compel the government to
restore the river to its former bed; nor can they restrain the
government from taking steps to revert the river or stream to its
former course. The owners of the land thus affected are not entitled
to compensation for any damage sustained thereby. However, the
former owners of the new bed shall be the owners of the abandoned
bed in proportion to the area lost by each.
The owners of the affected lands may undertake to return the river
or stream to its old bed at their own expense; Provided, That a permit
therefor is secured from the Secretary of Public Works,
Transportation and Communication and work pertaining thereto are
commenced within two years from the change in the course of the
river or stream.
Article 59. Rivers, lakes and lagoons may, upon the
recommendation of the Philippines Coast Guard, be declared
navigable either in whole or in part.
Article 60. The rafting of logs and other objects on rivers and lakes
which are flotable may be controlled or prohibited during designated
season of the year with due regard to the needs of irrigation and
domestic water supply and other uses of water.
Article 61. The impounding of water in ponds or reservoirs may be
prohibited by the Council upon consultation with the Department of
Health if it is dangerous to public health, or it may order that such
pond or reservoir be drained if such is necessary for the protection of
public health.
All reservoir operations shall be subject to rules and regulations
issued by the Council or any proper government agency.
Article 63. The operator of a dam for the storage of water may be
required to employ an engineer possessing qualifications prescribed
for the proper operations, maintenance and administration of the
dam.
Article 65. Water from one river basin may be transferred to another
river basin only with approval of the Council. In considering any
request for such transfer, the Council shall take into account the full
costs of the transfer, the benefits that would accrue to the basin of
origin without the transfer, the benefits would accrue to the receiving
basin on account of the transfer, alternative schemes for supplying
water to the receiving basin, and other relevant factors.
Article 66. After due notice and hearing when warranted by
circumstances, minimum stream flows for rivers and streams, and
minimum water levels for lakes may be established by the Council
under such conditions as may be necessary for the protection of the
environment, control of pollution, navigation, prevention of salt
damage, and general public use.
Article 67. Any watershed or any area of land adjacent to any
surface water or overlying any ground water may declared by the
Department of Natural Resources as protected area Rules and
regulations may be promulgated by such Department to prohibit or
control such activities by the owners or occupants thereof within the
protected area which may damage or cause the deterioration of the
surface water or ground water or interfere with the investigation, use,
control, protection, management or administration of such waters.
66 AbInitio| 2Exec DVOREF
Article 68. It shall be the duty of any person in control of a well to
prevent the water from flowing on the surface of the land, or into any
surface water, or any porous stratum under neath the surface without
being beneficially used.
Article 69. It shall be the duty of any person in control of a well
containing water with minerals or other substances injurious to man,
animals, agriculture, and vegetation to prevent such waters from
flowing on the surface of the land or into any surface water or into
any other aquifer or porous stratum.
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Article 70. No person shall utilize an existing well or pond or spread
waters for recharging substerranean or ground water supplies
without prior permission of the Council.
Article 71. To promote better water conservation and usage for
irrigation purposes, the merger of irrigation associations and the
appropriation of waters by associations instead of by individuals shall
be encouraged.
No water permit shall be granted to an individual when his water
requirement can be supplied through an irrigation association.
Article 72. In the consideration of a proposed water resource
project, due regard shall be given to ecological changes resulting
from the construction of the project in order to balance the needs of
development and the protection of the environment.
Article 73. The conservation of fish and wildlife shall receive proper
consideration and shall be coordinated with other features of water
resources development programs to insure that fish and wildlife
values receive equal attention with other project purposes.
Article 74. Swamps and marshes which are owned by the State and
which primary value for waterfowl propagation or other wildlife
purposes may be reserved and protected from drainage operation
and development.
Article 75. No person shall, without prior permission from the
National Pollution Control Commission, build any works that may
produce dangerous or noxious substances or perform any act which
may result in the introduction of sewage, industrial waste, or any
pollutant into any source of water supply.
Water pollution is the impairment of the quality of water
beyond a certain standard.
This standard may vary according to the use of the water and
shall be set by the National Pollution Control Commission.
Article 76. The establishment of cemeteries and waste disposal
areas that may affect the source of a water supply or a reservoir for
domestic or municipal use shall be subject to the rules and
regulations promulgated by the Department of Health.
Article 77. Tailings from mining operations and sediments from
placer mining shall not be dumped into rivers and waterways without
prior permission from the Council upon recommendation by the
National Pollution Control Commission.
Article 78. The application of agricultural fertilizers and pesticides
may be prohibited or regulated by the National Pollution Control
Commission in the areas where such application may cause pollution
of a source of water supply.
Article 79. The Administration and enforcement of the provisions of
this Code, including the granting of permits and the imposition of
penalties for administrative violations hereof, are hereby vested in
the Council, and except in regard to those functions which under this
Code are specifically conferred upon other agencies of the
government, the Council is hereby empowered to make all decisions
and determinations provided for in this Code.
67 AbInitio| 2Exec DVOREF
Article 80. The Council may deputize any official or agency of the
government to perform any of its specific functions or activities.
Article 81. The Council shall provide a continuing program for data
collection, research and manpower development needed for the
appropriation, utilization, exploitation, conservation, and protection
of the water resources of the country.
Article 82. In the implementation of the provisions of this code, the
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Council shall promulgate the necessary rules and regulations which
 PROPERTY - FINALS
may provide for penalties consisting of a fine not exceeding One
Thousand Pesos (P1,000.00) and/or suspension or revocation of the
water permit or other right to the use of water. Violations of such
rules and regulations may be administratively dealt with by the
Council.
Such rules and regulations prescribed by any government agency
that pertain to the utilization, exploitation, development, control,
conservation, or protection of water resources shall, if the Council so
requires, be subject to its approval.
Article 83. The Council is hereby authorized to impose and collect
reasonable fees or charges for water resources development from
water appropriators, except when it is for purely domestic purposes.
Article 84. The Council and other agencies authorized to enforce this
Code are empowered to enter upon private lands, with previous
notice to the owner, for the purpose of conducting surveys and
hydrologic investigations, and to perform such other acts as are
necessary in carrying out their functions including the power to
exercise the right of eminent domain.
Article 85. No program or project involving the appropriation,
utilization, exploitation, development, control, conservation, or
protection of water resources may be undertaken without prior
approval of the Council, except those which the Council may, in its
discretion, exempt.
The Council may require consultation with the public prior to
the implementation of certain water resources development projects.
Article 86. When plans and specifications of a hydraulic
structure are submitted for approval, the government agency whose
functions embrace the type of project for which the structure is
intended, shall review the plans and specifications and recommended
to the Council proper action thereon and the latter shall approve the
same only when they are inconformity with the requirements of this
Code and the rules and regulations promulgated by the Council.
Notwithstanding such approval, neither the engineer who drew up
the plans and specifications of the hydraulic structure, nor the
constructor who built it, shall be relieved of his liability for damages
in case of failure thereof by reason of defect in plans and
specifications, or failure due to defect in construction, within ten (10)
years from the completion of the structure.
Any action recover such damages must be brought within five
(5) years following such failure.
Article 87. The Council or its duly authorized representatives, in the
exercise of its power to investigate and decide cases brought to its
cognizance, shall have the power to administer oaths, compel the
attendance of witnesses by subpoena and the production of relevant
documents by subpoena duces tecum.
Non-compliance of violation of such orders or subpoena and
subpoena duces tecum shall be punished in the same manner as
indirect contempt of an inferior court upon application by the
aggrieved party with the proper Court of First Instance in accordance
with the provisions of Rules 71 of the Rules of the Court.
Article 88. The Council shall have original jurisdiction over all
disputes to relating to appropriation, utilization, exploitation,
development, control, conservation and protection of waters within
68 AbInitio| 2Exec DVOREF
the meaning and context of the provisions of this Code.
The decisions of the Council on water rights controversies shall
be immediately executory and the enforcement thereof may be
suspended only when a bond, in a amount fixed by the Council to
answer for damages occasioned by the suspension or stay of
execution, shall have been filed by the appealing party, unless the
suspension is virtue of an order of a competent court.
All dispute shall be decided within sixty (60) days after the
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parties submit the same for decision or resolution.
 PROPERTY - FINALS
The Council shall have the power to issue writs of execution
and enforce its decisions with the assistance of local or national police
agencies.
Article 89. The decisions of the Council on water rights controversies
may be appealed to the Court of First Instance of the province where
the subject matter of the controversy is situated within fifteen (15)
days from the date the party appealing receives a copy of the
decision, on any of the following grounds; (1) grave abuse of
discretion; (2) question of law; and (3) questions of fact and law.
Article 90. The following acts shall be penalized by suspension or
revocation of the violator's water permit or other right to the use of
water and/or a fine of not exceeding One Thousand Pesos
(P1,000.00), in the discretion of the Council:
(a)Appropriation of subterranean or ground water for domestic use
by an overlying landowner without registration required by the
Council.
(b) Non-observance of any standard of beneficial use of water.
(c) Failure of the appropriator to keep a record of water withdrawal,
when required.
(d) Failure to comply with any of the terms or conditions in a water
permit or a water rights grant.
(e) Unauthorized use of water for a purpose other than that for which
a right or permit was granted.
(f) Construction or repair of any hydraulic work or structure without
duly approved plans and specifications, when required.
(g) Failure to install a regulating and measuring device for the control
of the volume of water appropriated, when required.
(h) Unauthorized sale, lease, or transfer of water and/or water rights.
(i) Failure to provide adequate facilities to prevent or control diseases
when required by the Council in the construction of any work for the
storage, diversion, distribution and utilization of water.
(j) Drilling of a well without permission of the Council.
(k) Utilization of an existing well or ponding or spreading of water for
recharging subterranean or ground water supplies without
permission of the Council.
(l) Violation of or non-compliance with any order, rules, or regulations
of the Council.
(m) Illegal taking or diversion of water in an open canal, aqueduct or
reservoir.
(n) Malicious destruction of hydraulic works or structure valued at
not exceeding P5,000.00.
Article 91. A. A fine of not exceeding Three Thousand Pesos
(P3,000.00) or imprisonment for not more than three (3) years, or
both such fine and imprisonment, in the discretion of the Court, shall
be imposed upon any person who commits any of the following acts:
1. Appropriation of water without a water permit, unless such person
is expressly exempted from securing a permit by the provisions of
this Code.
2. Unauthorized obstruction of an irrigation canal.
3. Cultivation of a river bed, sand bar or tidal flat without permission.
4. Malicious destruction of hydraulic works or structure valued at not
exceeding Twenty-Five Thousand Pesos (P25,000.00).
B. A fine exceeding Three Thousand Pesos P3,000.00) but not more
than Six Thousand Pesos P6,000.00) or imprisonment exceeding
three (3) years but not more than six (6) years, or both such fine
and imprisonment in the discretion of the Court, shall be imposed on
69 AbInitio| 2Exec DVOREF
any person who commits any of the following acts:
1. Distribution for public consumption of water which adversely
affects the health and safety of the public.
2. Excavation or enlargement of the opening of a hot spring without
permission.
3. Unauthorized obstruction of a river or waterway, or occupancy of
a river bank or seashore without permission.
4. Establishment of a cemetery or a waste disposal area near a source
of water supply or reservoir for domestic municipal use without
permission.
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 PROPERTY - FINALS
5. Constructing, without prior permission of the government agency
concerned, works that produce dangerous or noxious substances, or
performing acts that result in the introduction of sewage, industrial
waste, or any substance that pollutes a source of water supply.
6. Dumping mine tailings and sediments into rivers of waterways
without permission.
7. Malicious destruction of hydraulic works or structure valued more
than Twenty-Five Thousand Pesos (P25,000.00) but at not exceeding
One Hundred Thousand Peso (100,000.00).
C. A fine exceeding Six Thousand Pesos (P6,000.00) but not more
than Ten Thousand Pesos (P10,000.00) or imprisonment exceeding
six (6) years but not more than twelve (12) years, or both such fine
and imprisonment, in the discretion of the Court, shall be imposed
upon any person who commits any of the following acts:
1. Misrepresentation of citizenship in order to qualify for water
permit.
2. Malicious destruction of a hydraulic works or structure, valued at
more than One Hundred Thousand Pesos (P100,000.00).
Article 92. If the offense is committed by a corporation, trust, firm,
partnership, association or any other juridical person, the penalty
shall be imposed upon the President, General Manager, and other
guilty officer or officers of such corporation, trust firm, partnership,
association or entity, without prejudice to the filing of a civil action
against said juridical person. If the offender is an alien, he shall be
deported after serving his sentence, without further proceedings.
After final judgment of conviction, the Court upon petition of the
prosecution attorney in the same proceedings, and after due hearing,
may, when the public interest so requires, order suspension of or
dissolution of such corporation, trust, firm, partnership, association
or juridical person.
Article 93. All actions for offenses punishable under Article 91 of this
Code shall be brought before the proper court.
Article 94. Actions for offenses punishable under this Code by a fine
of not more than Three Thousand Pesos (P3,000.00) or by an
imprisonment of not more than three (3) years, or both such fine and
imprisonment, shall prescribe in five (5) years; those punishable by
a fine exceeding Three Thousand Pesos (P3,000.00) but not more
than Six Thousand Pesos (P6,000.00) or an imprisonment exceeding
three (3) years but not more than six (6) years, or both such fine
and imprisonment, shall prescribe in seven (7) years; and those
punishable by a fine exceeding Six Thousand Pesos (P6,000.00) but
not more than Ten Thousand Pesos (P10,000.00) or an imprisonment
exceeding six (6) years but not more than twelve (12) years, or both
such fine and imprisonment, shall prescribe in ten (10) years.
Article 95. Within two (2) years from the promulgation of this Code,
all claims for a right to use water existing on or before December 31,
1974 shall be registered with the Council which shall confirm said
rights in accordance with the provisions of this Code, and shall set
their respective priorities.
When priority in time of appropriation from a certain source of supply
cannot be determined, the order of preference in the use of the
waters shall be as follows:
(a) Domestic and municipal use
(b) Irrigation
(c) Power generation
(d) Fisheries
(e) Livestock raising
(f) Industrial use, and
70 AbInitio| 2Exec DVOREF
(g) Other uses.
Any claim not registered within said period shall be considered
waived and the use of the water deemed abandoned, and the water
shall thereupon be available for disposition as unappropriated waters
in accordance with the provisions of this Code.
Article 96. No vested or acquired right to the use of water can arise
from acts or omissions which are against the law or which infringe
upon the rights of others.
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Article 97. Acts and contract under the regime of old laws, if they
are valid in accordance therewith, shall be respected, subject to the
limitations established in this Code. Any modification or extension of
these acts and contracts after the promulgation of this Code, shall be
subject to the provisions hereof.
Article 98. Interim rules and regulations promulgated by the Council
shall continue to have binding force and effect, when not in conflict
with the provisions of this Code.
Article 99. If any provision or part of this Code, or the application
thereof to any person or circumstance, is declared unconstitutional
or invalid for any reason, the other provisions or parts therein shall
not be affected.
Article 100. The following laws, parts and/or provisions of laws are
hereby repealed:
(a) The provisions of the Spanish Law on Waters of August 3, 1866,
the Civil Code of Spain of 1889 and the Civil Code of the Philippines
(R.A. 386) on ownership of waters, easements relating to waters, use
of public waters and acquisitive prescription on the use of waters,
which are inconsistent with the provisions of this Code;
(b) The provisions of R.A. 6395, otherwise known as the Revised
Charter of National Power Corporation, particularly section 3,
paragraph (f), and section 12, insofar as they relate to the
CONTRACTUAL LIMITATIONS
NCC
Article 1347. All things which are not outside the commerce of
men, including future things, may be the object of a contract. All
rights which are not intransmissible may also be the object of
contracts.
No contract may be entered into upon future inheritance except
in cases expressly authorized by law.
All services which are not contrary to law, morals, good
customs, public order or public policy may likewise be the object of a
contract.
Article 1348. Impossible things or services cannot be the object of
contracts
Article 1349. The object of every contract must be determinate as
to its kind. The fact that the quantity is not determinate shall not be
an obstacle to the existence of the contract, provided it is possible to
determine the same, without the need of a new contract between the
parties.

71 AbInitio| 2Exec DVOREF

appropriation of waters and the grant thereof;
(c) The provisions of Act No. 2152, as amended, otherwise known as
the Irrigation Act, section 3, paragraphs (k) and (m) of P.D. No. 813,
R.A. 2056; Section 90, C.A. 137; and,
(d) All Decree, Laws, Acts, parts of Acts, rules of Court, executive
orders, and administrative regulations which are contrary to or
inconsistent with the provisions of this Code.

Article 101. This Code shall take effect upon its promulgation.

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