10/29/2019

THE DIFFERENT KINDS OF

LEGAL EASEMENTS
RELATING TO WATERS
LEGAL EASEMENTS
PART 3

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DRAINAGE OF BUILDINGS DRAINAGE OF BUILDINGS


GR and Restriction: When an easement of drainage can be demanded?
 Compulsory easement, when available? A676
The owner of a building must construct his roof/covering in a
manner that rainwater falls on his own land, a street or a public 
Onerous or gratuitous? Available option of the servient estate –
place, and not on the land of a neighbor. TEST to apply?

The disposal of the said water must not cause damage to the adjoining
estate.

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22 23

Rule IX Sanitation (PD 1096) NATURAL DRAINAGE OF LANDS

Section 904 Storm Drainage
System
 lower estates are obliged to receive the waters which
 naturally flow from the higher estates (Art. 637).
Rainwater drainage shall not discharge to the sanitary sewer system 

Easement of natural drainage does not
Adequate provisions shall be made to drain rainwater from low areas in buildings
and their premises prescribe. (downstream)
 
no requirement of indemnification, as long as the
The drainage pipe installation and sewerage system of any premises conditions laid down are complied
and/or connection with any public disposal or any acceptable 26
terminal shall conform to the Revised National Plumbing Code of the
Philippines
26
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Obligations of Servient/Lower Owner/Estates Obligations of Servient/Lower Owner/Estates

 
1. Obliged to receive the following:
1. Obliged to receive the following: 
 not including reservoir - collected artificially
The waters which naturally and without the 
Descending waters are result of artificial development /
intervention of man, descend from the higher proceeds from industrial establishments, or overflow
[dominant] estates from irrigation dams (not waters that naturally descent)
 
the owner of the lower estate shall be compensated for damage or loss
The stones and earth carried by the waters

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28 29

2. Cannot construct works which will impede this Obligation of Dominant Owner –
easement, such as: 
 He cannot make works which will increase the burden [Art.
Building a blocking dam which would divert the flow and burden
another tenement, or 637]
 
Enclosing the land by ditches or fences to impede the flow Ex. Cannot collect water / increase the velocity of descent
- same: Art. 50, Water Code

But the owner of the servient estate / lower estate may
regulate or control the descent of water. Right of Dominant Owner

He may construct works preventing erosion [Art. 114,
Law of the Waters]
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30 32

Ongsiako v Ongsiako (1957) Ongsiako v Ongsiako (1957)


Caridad sued her sister Emilia to, among others, demolish
An easement of drainage does not the dike that interferes with her easement of
drainage.
depend upon acts of man, but on 
1937 - construction of obstruction of the flow of water from the higher
rainwater. It is therefore continuous estate to lower estate;
and subject to extinction by non- 
1951 - an action for the destruction of the dike was filed.
use. 
Emilia simply claims that the suit has prescribed.
33
Did the easement of drainage prescribe?
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Art. 638 - Easement along

Ongsiako v Ongsiako (1957)
Riparian Banks, as amended by Art. 51,
Water Code

YES. The action has prescribed. It was not ZONE FOR
prosecuted for more than 13 years. An easement is 
NAVIGATION,
extinguished by non-use for 10 years. 
FLOATAGE,

 FISHING,
- the easement may be extinguished if the action to destroy 
a dike (which impedes the easement) is brought only after SALVAGE
more than 10 years 
RECREATION
37

37
35

35

"People must not occupy such easements” . .

.
 ➢
rivers may overflow and banks of these waterways may collapse,
There is a living ➢
endangering people encroaching there
Possible onslaught of tropical cyclones with intense rainfall is raising

ecosystem in the risk for such occurrences. . .

waterways that needs to

breathe!!! 42

42
39

39

ZONE FOR NAVIGATION,

FLOATAGE, FISHING, SALVAGE
ZONE FOR NAVIGATION,
FLOATAGE, FISHING, SALVAGE 
(Art. 51, Water Code) – a zone of 3 meters in width throughout the
LOCATION of WATER EASEMENT entire length of the banks of rivers and streams
BODY/WAY for use by the public (Art. 638) and/or an
Urban Areas 3 meters per side of easement of towpath (Art. 638. . . . even in case
waterway
they are of private ownership upon payment of
Agricultural Areas
proper indemnity)
20 meters per side of
waterway
Forest Areas 40 meters per side of 46

waterway 46
45

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ZONE FOR NAVIGATION, ZONE FOR NAVIGATION,

FLOATAGE, FISHING, SALVAGE FLOATAGE, FISHING, SALVAGE
 
– a zone of 3 meters in width throughout the entire – a zone of 3 meters in width throughout the entire
length of the banks of rivers and streams length of the banks of rivers and streams for an
easement of towpath (Art. 638. . . Banks of navigable or
for use by the public floatable rivers:
Banks of rivers whether public or private; Tow paths for the estates adjoining the
navigable or not: banks
- 2 meters for animals
- 1 meter for pedestrian
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47 48

River Bank

- lateral strip of shore washed by the water during high tides

- are of public ownership, except those already become private
under Siete Partidas

If necessary for the purpose of the easement to occupy a
land of private ownership - proper indemnity shall be paid.

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49 50

Art. 638 - Easement along

Riparian Banks

Is this easement public or private?
 
Other than the Civil Code, what are some laws and
Case - Municipal ordinance is regulations that cover the topic of easement of waterways?
subject to limitation, that the 
Are there actions for the establishment of easements as governed by
the Rules of Court?
same shall not be contrary to law 
From what point to reckon or measure the easements / Determination
of Easements?

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52

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Art. 638 - Easement along Art. 638 - Easement along

Riparian Banks Riparian Banks

From what point to reckon or measure the easements /

No build zone?
Determination of Easements? 
Remedy in case of violation of NBZ?

Procedures for removal of illegal structures?
All easements of public use prescribed for the banks or 
rivers and the shores of seas and lakes shall be reckoned May this easement be placed/imposed on a privately-owned land?
from the line reached by the highest flood which does not 
Who may demand for the establishment of easement of
cause inundation or the highest equinoctial tide whichever waterways?
is higher 
What may be done in the area covered by the easement?

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Art. 638 - Easement along Art. 638 - Easement along

Riparian Banks Riparian Banks
 
No build zone? What may be done in the area covered by the easement?
 
Allowed or Encouraged Structures/Development within Flood control works

Easements: Restoration of river courses to former beds

Construction of dams, bridges, other structures in navigable or floatable waterways
 
If wider than 9 meters, the easement may include Cultivation of river beds, sand bars, tidal flats
roadway/carriageway component on which vehicles can pass or 
Drilling of wells (for domestic and municipal use and industrial use)
which the same may park temporarily 
Protection of water supply sources

 Irrigation, hydro-power

Pedestrian access-ways and the like to be located at above/below the Etc
Reference: IRR of the Water Code
easement may also be developed for public use (ex. Promenades)
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LEGALITY OF BORACAY CLOSURE

Art. 638 - Easement along
Riparian Banks Del Castillo, J. ; 11-2 En Banc Decision

upheld President Rodrigo Duterte’s 6-month closure of Boracay Island

Who are bound to comply with this easement? 
Proclamation 475 did not impair people’s right to travel and therefore did
not alter “the relationship between the State and the people”
Include holders of water rights (Art. 25, Water 
Code) Valid exercise of police power

What are (specific) examples or illustrations of violations 64

of this easement?
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Disaster Risk Reduction and Management

DISSENT Act

UPHOLDING EXPEDIENCY 
(and authoritarianism) OVER the disaster law empowered mainly local
THE REQUIREMENTS OF THE government actors in the declaration of a state of
CONSTITUTION calamity

- Executive overreach
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CLARIFICATION
ST
•A51, Water Code MODIFIED 1 The banks of rivers and streams and the shores of the seas and lakes
Par., A638 of the Civil Code. 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;
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• navigation;
• floatage;
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69

• fishing; and
• salvage.

•No person shall be allowed to stay in this zone longer Do you still need payment for
than what is necessary for recreation, navigation, indemnity under Article 51 of the
floatage, fishing or salvage or to build structures of Water Code?
any kind.
MAJORITY VIEW (LIBERAL)
-LAST paragraph of A638 was not modified so
ST
70 YES. ONLY THE 1 paragraph was modified.
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Do you still need payment for
indemnity under Article 51 of the
Water Code?
MINORITY VIEW (STRICT interpretation – repeal of A638)
• No more. The last par. of A638 has been removed.
• Possible reason: The 2nd par. of A51 of the Water Code in
fact prohibits the occupation of said lands for use other
than those which are enumerated therein.
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74
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•The easement established by Article 638 does
not apply to canals (esteros). (Ayala de Roxas
v. City of Manila)
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Dam whose construction is unauthorized:
• considered a private nuisance
• may be lawfully destroyed or removed by the injured
landowner or by any person acting under his directions.
• It is incumbent upon the builder who seeks to
restrain affected landowners from interfering with
his use of the dam to prove that he has legal right or
authority to build the same.
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• land of public ownership: no indemnity;
• land of private ownership: proper indemnity shall first
be paid before it may be occupied
• Riparian owners cannot be required to subject their
property to the easement for the benefit of the public
without prior indemnity.
Art 639. Easement Concerning a Dam

Easement for construction, abutment (support), or buttress of a dam:

- should it be necessary to construct a dam, and the person to
construct it is not the owner of the banks / lands which must
support it, he may construct the easement / abutment of dam
after payment of proper indemnity
77
Art 639. Easement Concerning a Dam
Case - A owner of land; B wants to construct a dam to collect water

- Permission of A must be secured, or request for administrative investigation to determine
whether the building of dam is necessary or not.

- Thus, in the absence of permission of the owner of the land, the government
should have first investigated to determine the necessity of dam.

- In absence of both - the dam is considered nuisance and the owner of the land may
demolish the same
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Javellana v IAC, Marsal & Co (1989)
An easement of water-right of way is constituted
when a canal has long been in existence and it
serves the public. The servient estate cannot
impair the use of the easement.
This is a suit for damages and permanent
injunction againstthe Mayorand the residents.
83
84
83
Javellana v IAC, Marsal & Co (1989)
YES, THEREFORE MARSAL MAY NOT BUILD THE DIKE.
 Difficulty in strictly enforcing the waterways easement
Marsal cannot unilaterally terminate the easement. It has been there
even before it acquired the property and has been there for at least 15
years. It cannot impair the use of the easement without providing for an
alternate easement that is no less convenient. Before the closure, there
have never been flooding. (The real cause of building the dike is to hinder
the residents’ salt-making which competes with Marsal’s business.)
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DRAWING WATER & WATERING
ANIMALS
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Javellana v IAC, Marsal & Co (1989)
Marsal bought a parcel of land with a canal cutting through the land and
leading to an Elementary School from the river. This canal has been
there ever since and it serves as both ingress and egress
for the Elementary School and the residents within the vicinity.
Claiming that the residents threw trash into the canal, Marsal closed it
by building a dike, so the Mayor and the residents sought to demolish it.
Is there an easement? May Marsal & Co build the dike?
84
ACTIONS taken by LGUs / State to
address the Easement Enforcement

Construction of new water channels (ex. Building of huge
canals to accommodate rainwater that causes flooding)

Other alternate plan for drainage
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PERSONAL EASEMENTS
•Under A640, these two easements are personal
easements. They are for public use. It presupposes the
availability of water within the property of the servient
estate.
•On easement of watering animals, the use of the
water is in favor for the farm animals of the community.
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DRAWING WATER & RAWING WATER & WATERING ANIMALS

WATERING ANIMALS Requirements for easement to exist: A641

1. For public use
 
imposed in favor of a town or village (general 2. In favor of town or village
community), includes the obligation to allow passage of 
3. The right is not sought by an individual, but by the town and village
persons and animals (Art. 640) 
4. Payment of proper indemnity

5. Right of way (accessory easement) should have a maximum width of
10meters (cannot be altered by owners of servient estate, but the direction
may be changed).

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92

LEGAL / COMPULSORY LEGAL / COMPULSORY

EASEMENT OF AQUEDUCT EASEMENT OF AQUEDUCT
 
Right to make the water flow thru intervening estates in Who is the Dominant Owner?
order that one may make use of the waters - with the 
obligation to indemnify their owners, as well as the Any person who may wish to use upon his own estate any
owners of the lower estates upon which the waters may water of which he can dispose
filter or descend

Does not include the grant of right of way

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LEGAL / COMPULSORY
EASEMENT OF AQUEDUCT

Right of the Dominant Owner •The existence of an easement of

 right of way does not necessarily
To make waters flow through the intervening include the easement of an aqueduct.
estates (San Rafael Ranch Co. v. Rogers Co., 154 C
76 p.1092)
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Art 643 - Requisites for Legal Easement of

LEGAL / COMPULSORY EASEMENT OF
Aqueduct
AQUEDUCT

Obligations of the Dominant Owner:
(1) That he can dispose of the water
 - Right to dispose water - given thru prescription / administrative
1. To INDEMNIFY: concession
The servient owners, and the owners of the lower estates upon
- Whoever believes that he has the right to object may setup the
which the waters may filter or descend [Art. 642]
objection.

2. The keep the aqueduct in proper use and care [Art. 130, Law of the Waters] 
(2) That the water is sufficient for the use that it is intended

3. To keep on hand necessary materials for its use [Art. 132, Law
of the Waters]
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102 103
102

Art. 644 - An Easement of

Art 643 - Requisites for Legal Aqueduct Cannot be Imposed on
Easement of Aqueduct Existing:
 (3) That the proposed route is the most convenient
and the least onerous to 3rd persons and the 1. Buildings
servient estate. 2. Courtyards
 (4) Proper administrative permission is obtained (if public domain is 3. Annexes or Outhouses
crossed)
4. Orchards or gardens
- Municipal Council - when municipal streets are crossed
- Provincial Board - when public roads and waterways are
crossed
- National Government - when navigating canals /
navigable rivers are crossed. 105
104

104 105

Art. 645 - Rights of the Owner of the

•Ratio: Allowing such would result to invasion of Servient Estate
privacy of the premises of the owners thereof.

•If the easement of aqueduct is for the benefit of 1. To close or fence his estate

the PUBLIC, it can be imposed on the said 2. To build over the aqueduct - provided such building does not:
enumerated properties. Public Interest prevails ❑
cause damage to the aqueduct, and
over private interest. (Pineda) ❑
render necessary repairs and cleanings
impossible

107

106

107
106

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Art. 646 For legal purposes, the easement of

aqueduct shall be considered as CONTINUOUS 
AND APPARENT, even Case - Whether or not the plaintiff may construct canal across
the intervening fishpond so that the
though: (susceptible to acquisitive
prescription) water may be obtained from the river.

 
- Yes. Plaintiff hold a permit to use the water, and
the flow of the water may not be continuous, or
 willing to pay the proper indemnity. (WATER RIGHT)
its use depends upon the needs of the dominant estate, or upon a
schedule of alternate days or hours.

109

108 109
108

STOP LOCK OR SLUICE GATE

Ways of making easement of aqueduct:

constructed on the bed of the stream
 with support on the lands adjoining
1. Open Canal - should NOT be the stream owned by other persons
dangerous and deep (Art. 647)

2. Closed / covered canal

3. tubes / pipes 112

112
110

110

STOP LOCK OR SLUICE GATE

Requisites:
STOP LOCK OR SLUICE GATE 1. The purpose must be for irrigation or
improvement;
2. The construction must be on the estate of another;
• one where the dominant owner, upon indemnity, would
3. That the damages must be paid; and
be allowed to build such lock or gate to another estate
4. That third persons should not be prejudiced.
for the purposes of irrigation or improvement

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114
113

113
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• Article 52 of the Water Code states:

• Article 52. The Establishment, Extent, Form, and
Conditions of easements of water not expressly
determined by the provisions of this Code (WC) shall be
What is an easement
governed by the provisions of the Civil Code. against
• Other than those enumerated in Article 52, the
Water Code is now the prevailing law on waters.
nuisance?

116

116 117

117

•a negative easement because the proprietor
or possessor is prohibited to do something
which he could lawfully do were it not for the
existence of the easement
• The proprietor or possessor of the building or piece
of land, who commits the nuisance thru noise,
jarring, offensive odor, etc. is servient in an
easement against nuisance; in another sense, the
building or the land itself is the servient estate, since
the easement is inherent in every building or land.
(Report of the Code Commission, 51)

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118 119

119

• The dominant in this easement is the general public, or

anyone injured by such nuisance.
• Easement against nuisance is not really an easement.
This easement is created by law and is inherent in every
land. It is a proper limitation upon ownership. It is a
manifestation of the principle that every person should
so use his property as not to cause damage or injury to
others. (id.)

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