LEGAL EASEMENTS

GENERAL PROVISIONS
Art. 634. Easements imposed by law have for their object either public use or the interest of private persons.
(549)

LEGAL EASEMENTS DEFINED

> They are the easements imposed by the law, and which have for their object either public use or the interest of
private persons

DIFFERENT LEGAL EASEMENTS

1. Easements relating to waters
2. Right of way
3. Light and view
4. Party wall
5. Drainage of building
6. Intermediate distances
7. Easement against nuisance
8. Lateral and subjacent support

Art. 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. (550)

Art. 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. (551a)

HOW LEGAL EASEMENTS FOR PRIVATE INTERESTS ARE GOVERNED

1. Agreement of the interested parties
2. In default the above, of general or local laws and ordinances for the general welfare
3. In default of the above, the Civil Code

EASEMENTS RELATING TO WATERS

Art. 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. (552)

ENUMERATION OF LEGAL EASEMENT RELATING TO WATERS

1. Natural drainage of lands
2. Natural drainage of buildings
3. Easement on riparian banks for navigation, floatage, fishing and salvage
4. Easement of a dam
5. Easement for drawing water or for watering animals
6. Easement of aqueduct
7. Easement for the construction of a stop luck or sluice

WHAT LOWER ESTATES ARE OBLIGED TO RECEIVE

1. Water which naturally and without the intervention of man descends from the higher estates
2. The stones and earth carried by the waters

DUTIES OF THE SERVIENT ESTATE

> The owner cannot construct works that would impede the easement

DUTIES OF THE DOMINANT ESTATE

1. He cannot make works which will increase the burden
2. But he may construct works preventing erosion
3. If the descending waters are the result of artificial development or proceed from industrial establishments recently set
up, or are the overflow from irrigation dams, the owner of the lower estate shall be entitled to compensation for his loss or
damage

CONTRACT MAY EXTINGUISH LEGAL EASEMENT THERE IS NO NEED FOR INDEMNITY AS

LONG AS THERE IS COMPLIANCE WITH CONDITIONS

Art. 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.  If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)

EASEMENT ALONG RIPARIAN BANKS RIVER BANK, DEFINED

> A bank is a lateral strip of shore washed by the water during high tides but which cannot be said to be flooded or
inundated
THE EASEMENTS ALLOWED
1. On banks of rivers; a public easement for
a. Navigation
b. Floatage
c. Fishing
d. Salvage
2. On banks of navigable or floatable rivers—also the easement of tow path

PAYMENT OF INDEMNITY
1. If the land be of public ownership—no indemnity
2. If the land be of private ownership—indemnity

WIDTH OF ZONE BURDENED

1. Three meters along the river margins, for navigation, floatage, fishing or salvage
2. Tow path—2 meters if for animals and 1 meter if for pedestrians

Art. 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. (554)

EASEMENT CONCERNING A DAM

Art. 640. Compulsory easements for drawing water or for watering animals can be imposed only for reasons of
public use in favor of a town or village, after payment of the proper indemnity. (555)

EASEMENTS FOR DRAWING WATER OR FOR WATERING ANIMALS

1. They can be imposed only for reasons of public use
2. They must be in favor of a town or village
3. Proper indemnity must be paid
Art. 641. Easements for drawing water and for watering animals carry with them the obligation of the owners of the
servient estates to passage to persons and animals to the place where such easements are to be used, and the indemnity
shall include this service. (556)

EASEMENTS COVERED
> Easements for drawing water and watering animals but there is also an accessory easement combined with easement
of right of way

REQUIREMENTS FOR SUCH AN EASEMENT TO EXIST

1. It must be for public use
2. It must be in favor of a town or village
3. The right must be sought not by one individual but by the town or village, through its legal representative
4. The right of way should have a maximum width of 10 meters, which cannot be altered by the owners of the servient
estates although the direction of the path may indeed be changed,  provided that the use of the easement is not
prejudiced

Art. 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. (557)

EASEMENT OF AQUEDUCT
> The right to make water flow through intervening estates in order that one may make use of said waters

RIGHT TO ACQUIRE THE EASEMENT OF AQUEDUCT

4 REQUISITES FOR THE LEGAL EASEMENT OF AQUEDUCT

1. That he can dispose of the water
2. That it is sufficient for the use for which it is intended;
3. That the proposed right of way is the most convenient and the least onerous to third persons;
4. To indemnify the owner of the servient estate in the manner determined by the laws and regulations.

Art. 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. (558)

Art. 644. The easement of aqueduct for private interest cannot be imposed on buildings, courtyards, annexes, or
outhouses, or on orchards or gardens already existing. (559)

Art. 645. The easement of aqueduct does not prevent the owner of the servient estate from closing or fencing it,
or from building over the aqueduct in such manner as not to cause the latter any damage, or render necessary
repairs and cleanings impossible. (560)

Art. 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. (561)

Art. 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. (562)

CONSTRUCTION OF A STOP LOCK OR SLUICE GATE

1. Purpose must be for irrigation or improvement
2. The construction must be on the estate of another
3. Damages must be paid
4. Third persons shouldn’t be prejudiced

Art. 648. The establishment, extent, form and conditions of the servitudes of waters, to which this section refers, shall be
governed by the special laws relating thereto insofar as no provision therefor is made in this Code. (563a)

PROVISIONS THAT GOVERN EASEMENTS RELATING TO WATERS

> Civil code provisions on easement of waters prevail over special laws
> In case of conflict between special laws and the new CC, the latter prevails

EASEMENT OF RIGHT OF WAY

Art. 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. (564a)

EASEMENT OF RIGHT OF WAY DEFINED

> Easement or privilege by which one person in a particular class of persons is allowed to pass over another land, usually
through one particular path or line

REQUISITES FOR THE EASEMENT

1. The property is surrounded by estate of others and there is no adequate outlet to a public highway
2. It must be established at the point least prejudicial to the servient estate and insofar as consistent with this rule, where
the distance from the dominant estate to a public highway may be the shortest
3. There must be payment of the proper indemnity
4. The isolation should not be due to the proprietor’s own acts

PROPER INDEMNITY
1. If the passage is permanent, pay the value of the land occupied by the path plus damages
2. If temporary, pay for the damages caused

CLASSIFICATION OF RIGHT OF WAY

1. Private
2. Public

Art. 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. (565)

N.B: Adequacy to dominant estate

Art. 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. (566a)

WIDTH OF PATH
> The width may be modified from time to time depending on the reasonable needs of the dominant estate

Art. 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. (567a)
RULE IF LAND OF VENDOR IS ISOLATED FROM THE HIGHWAY

> Indemnity included in the purchase price—the buyer is the owner of the dominant estate

Art. 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. (n)

RULES IF GRANTOR OR GRANTEE’S LAND IS ENCLOSED

1. If the enclosing estate is that of the grantor, the grantee doesn’t pay indemnity for the easement
2. If the enclosed estate is that of the grantor, the grantor must pay indemnity

Art. 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. (n)
OWNERSHIP OF, REPAIRS AND TAXES ON, THE PATH
1. Even though permanent, the path belongs to the servient estate, and he pays all the taxes
2. But the dominant estate—
a. Should pay for repairs
b. Should pay proportionate share of taxes to the servient estate

Art. 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. (568a)

CAUSES FOR EXTINGUISHMENT OF THE EASEMENT OF RIGHT OF WAY

1. Opening of a new road
2. Joining the dominant estate to another

EXTINGUISHMENT NOT AUTOMATIC

> The extinguishment is not automatic
> The law says that the servient estate may demand
> It follows that if he chooses not to demand, the easement remains and he has no duty to refund the indemnity

NON-APPLICABILITY OF THE ARTICLE TO A VOLUNTARY EASEMENT NO RETURN OF

INDEMNITY IN CASE OF TEMPORARY EASEMENT
Art. 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 estate shall be obliged to permit the act, after receiving payment of the proper indemnity
for the damage caused him. (569a)

TEMPORARY EASEMENT OF RIGHT OF WAY

1. The easement here is necessarily only temporary, nonetheless proper indemnity must be given
2. Indispensable is not to be construed literally
3. The owner can make use of Article 656

Art. 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 meters and 50 centimeters. Whenever it is necessary to establish a compulsory easement
of the right of way or for a watering place for animals, the provisions of this Section and those of Articles 640 and
641 shall be observed. In this case the width shall not exceed 10 meters. (570a)

EASEMENT OF RIGHT OF WAY FOR THE PASSAGE OF LIVESTOCK: WIDTH

1. Animal path—75 meters
2. Animal trail—37 meters and 50 centimeters
3. Cattle—10 meters

OWNERSHIP
 
OWNERSHIP IN GENERAL
 
Art. 427. Ownership may be exercised over things or rights. (n) 
 

OWNERSHIP
 
Independent  and  general  right  of  a  person  to  control  a  thing particularly   in   his  possession,   enjoyment,  
disposition   and recovery, subject to no restrictions except those imposed  by the state or private persons, without
prejudice to the provisions of the law 
 
KINDS OF OWNERSHIP
 
1.    Full ownership—all rights of an owner 
2.    Naked ownership—ownership where the right  to the use and the fruits have been denied 
3.    Sole ownership—ownership is only vested in one person 
4.    Co-ownership

 
Art. 428. The owner has the right to enjoy and dispose of a thing, without other limitations than those established
by law. 
 
The  owner  has  also  a  right  of  action  against  the  holder  and possessor of the thing in order to recover it.
(348a) 
 
7 RIGHTS OF AN OWNER UNDER ROMAN LAW
Jus possidendi -The right to possess
Jus utendi -The right to use
Jus fruendi -The right to the fruits
Jus abutendi -The right to consume
Jus disponendi -The right to dispose
Jus vindicandi -The right to recover
Jus accessiones -The right to accessories
 
ACTIONS TO RECOVER
1.    Replevin
2.    Accion interdictal—forcible entry and unlawful detainer
3.    Accion publiciana
4.    Accion reinvidicatoria
5.    Writ of possession | writ of demolition
6.    Writ of preliminary injunction  
 
REPLEVIN
An action or provisional remedy where the complainant prays for the recovery of the possession of PERSONAL
PROPERTY 
 
FORCIBLE ENTRY
> Summary action to recover material or physical possession of real property  when  a  person  originally  in  possession 
was  deprived thereof by force, intimidation, strategy, threat or stealth
> Action must be brought within 1 year from the dispossession

> Issue involved is mere physical possession or possession de facto and not juridical possession nor ownership 
 
UNLAWFUL DETAINER
> Action  that  must  be  brought  when  the  possession  by  a  landlord, vendor,  vendee  or  other  person  of  any  land 
or  building  is  being unlawfully withheld after the expiration or termination of the right to hold possession, by virtue of any
contract, express or implied
 
>Action must be brought within one year from last demand letter  
 
ACCION PUBLICIANA
 
> Recovery of the better right to possess, and is a plenary action in an ordinary civil proceeding before the RTC
>Must  be  brought  within  a  period  of  10  years  otherwise  the  real right to possess is lost
> Issue is possession de jure 
 
ACCION REINVIDICATORIA
 
> Action to recover ownership over real property
> Must be brought in the RTC
> It must be brought within 10 or 30 years as the case may be
> Issue involved is ownership and for this purpose, evidence of title or mode may be introduced
> It  is  permissible  to  file  both  an  action  for  ownership  and  for detainer  over  the  same  land,  and  between  the 
same  parties, because the issues involved are different  
 

WRIT OF INJUNCTION
 
> A person deprived of his possession of real or personal property is ordinarily not allowed to avail himself of this remedy,
the reason being  that  the  defendant  in  actual  possession  is  presumed disputably to have the better right  
 

WRIT OF POSSESSION
 
> Used  in  connection  with  the  Land  Registration  Law  is  an  order directing  the  sheriff  to  place  a  successful 
registrant  under  the Torrens system in possession of the property covered by a decree of the Court  
 
OWNERSHIP HAS LIMITATIONS
1.    Those given by the State or the laws 
2.    Those given by the owner himself 
3.    Those given by the person who gave the right to its present owner  

 
Art. 429. The owner or lawful possessor of a thing has the right to exclude  any  person  from  the  enjoyment 
and  disposal  thereof.  For this  purpose,  he  may  use  such  force  as  may  be  reasonably necessary  to  repel 
or  prevent  an  actual  or  threatened  unlawful physical invasion or usurpation of his property. (n) 
 
DOCTRINE OF SELF-HELP
 
> The right to counter force with force
> Comparable  with  self-defense  under  justifying  circumstances  in Criminal Law

 
Art. 430. Every owner may enclose or fence his land or tenements by  means  of  walls,  ditches,  live  or  dead 
hedges,  or  by  any  other means without detriment to servitudes constituted thereon. (388) 
 
Art.  431.  The  owner  of  a  thing  cannot  make  use  thereof  in  such manner as to injure the rights of a third
person. (n) 
 
NO INJURY TO RIGHTS OF THIRD PERSONS
 
> This  is  one  of  the  fundamental  bases  of  police  power  and constitutes a just restriction on the right of ownership

 
Art.  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. (n) 
 

STATE OF NECESSITY
 
ANALOGOUS TO THE RULE UNDER CRIMINAL LAW
Any  person  who,  in  order  to  avoid  an  evil  or  injury,  does  an  act  which causes damage to another doesn't incur
criminal liability provided that the following requisites are present: 
1.    That the evil sought to be avoided actually exists 
2.    That the injury feared be greater than that done to avoid it 
3.    That  there  be  no  other  practical  or  less  harmful  means  of preventing it 
 
Art.  433.  Actual  possession  under  claim  of  ownership  raises disputable presumption of ownership.  The true
owner must resort to judicial process for the recovery of the property. (n) 
 
RULE OF EVIDENCE
 
REQUIREMENTS TO HAVE DISPUTABLE PRESUMPTION
1.    Actual possession of the property
2.    Claim of ownership 
 
Art. 434. In an action to recover, the property must be identified, and  the  plaintiff  must  rely  on  the  strength 
of  his  title  and  not  on the weakness of the defendant's claim. (n) 
 

REQUISITES IN AN ACTION TO RECOVER

1.    Identity of the property 
2.    Strength of the plaintiff’s title 
 
Art.  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. (349a) 
 
EMINENT DOMAIN V. EXPROPRIATION
- Eminent domain is the power of the state and expropriation is the proceeding 
 
Art. 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. (n) 
 
Art. 437. The owner of a parcel of land is the owner of its surface and of everything under it, and he can construct
thereon any works or  make  any  plantations  and  excavations  which  he  may  deem proper, without detriment
to servitudes and subject to special laws and    ordinances.    He    cannot    complain    of    the    reasonable
requirements of aerial navigation. (350a) 
 
SURFACE RIGHT OF A LAND OWNER
 
Art.  438.  Hidden  treasure  belongs  to  the  owner  of  the  land, building, or other property on which it is found. 
 
Nevertheless,  when  the  discovery  is  made  on  the  property  of another, or of the State or any of its
subdivisions, and by chance, one-half  thereof  shall  be  allowed  to  the  finder.  If  the  finder  is  a trespasser,
he shall not be entitled to any share of the treasure. 
 
If the things found be of interest to science of  the arts, the State may  acquire  them  at  their  just  price,  which 
shall  be  divided  in conformity with the rule stated. (351a) 
 
Art. 439. By treasure is understood, for legal purposes, any hidden and unknown deposit of money, jewelry, or
other precious objects, the lawful ownership of which does not appear. (352) 
 
RULES REGARDING HIDDEN TREASURES
 
1.    If the treasure is not hidden, there is no 50-50 sharing 
2.    If the precious metals are in their raw  state, it will be owned by the State by virtue of the Regalian doctrine 
3.    If  the  owner  finds  the  treasure  in  his  own  land,  he  owns  the treasure 
4.    If finder finds it not in his own land, there is 50-50 sharing with the owner of the land 
5.    If the finder is hired, then compensation or salary or fixed fee will be given to him 
6.    If the finder is a trespasser, then he would not receive anything 
 
2 SCHOOLS OF THOUGHT REGARDING “BY CHANCE”
1.    If  there  is  deliberate  search,  it  is  not  to  be  construed  as  “by chance” 
2.    Even if there is a deliberate search, still “by chance” since there is uncertainity of finding a treasure

← Redemption Price for a Mortgaged and Foreclosed  Properties

Writ of Habeas Data →
Issue in Ejectment Case
Posted on November 18, 2010by Erineus
The only issue in an ejectment case is the physical possession of real property ‒ possession de facto and not
possession de jure.    We rule upon the issue of ownership only to determine who between the parties has the
better right of possession.  As the law now stands, in an ejectment suit, the question of ownership may be
provisionally ruled upon for the sole purpose of determining who is entitled to possession de facto.  [Umpoc v.
Mercado, 490 Phil. 120,136 (2005)]

A person who occupies the land of another at the latter’s tolerance or permission, without any contract between
them, is necessarily bound by an implied promise that he will vacate upon demand, failing which a summary
action for ejectment is the proper remedy against them. [Calubayan, et al. v. Pascual, 128 Phil. 160, 163
(1967)] Whatever right of possession that the spouses Beltran may have over the subject property cannot
prevail over that of Nieves for the simple reason that Nieves is the registered owner of the subject property and
the alleged deed of sale, which Nieves disputes, remains unregistered.  Although it is true that the spouses
Beltran, and not Nieves, were in prior physical possession of the subject property, this argument cannot hold
water as prior physical possession is material only in forcible entry cases.  [Spouses Apostol v. Court of
Appeals, supra note 16]

Any question regarding the validity of Nieves’ title can only be assailed in an action expressly instituted for that
purpose.  A certificate of title shall not be subject to collateral attack. [Section 48, P.D. No. 1529] Our ruling in
the present case shall not bar an action between the same parties for the determination of ownership of the
subject property.