Title VII Easements or Servitudes]  Unlike a lease, an easement does the servient not give the
(Chapter 1: Easements in General holder of an easement a right of possession of the property,
Section 1: Different Kinds of Easements
Section 2: Modes of Acquiring Easements
Section 3: Rights and Obligations of the Owners
of the Dominant and Servient Estates)
Section 4: Modes of Extinguishing Easements]
(Arts. 613 - 633, NCC)
Concept of Easement
Definition: As defined, an easement is a real right on another's property,
corporeal and immovable, whereby the owner of the latter must refrain from
doing or allowing somebody else to do or something to be done on his
property, for the benefit of another person or tenement,
Easement, and servitude. Distinguished
 Easement
 refers to the right enjoyed by one while servitude refers to the burden
imposed upon the other.
 Put a little differently, easement and servitude are but the two
aspects of the same concept.
 The passive aspect of being an encumbrance is what should properly
be referred to as the servitude;
 whereas the active aspect of being a right is what should properly be
referred to as an easement.
 Thus, servitude is defined as an encumbrance imposed upon an
immovable for the benefit of another immovable belonging to a
different owner or for the benefit of a community, or of one or more
persons to whom the encumbered estate does not belong.
Concept of easement:
 It is a real right since the right in constituted on the thing itself and not
upon its owner or its occupant.
 As a consequence, the right avails against every person
whomsoever, who may happen, for the time being, to have any
interest in the thing, or, as adverse possessor, to exercise a right
of dominion over it.
 The right consists of a limited use and enjoyment of the thing without
possession and gives rise to an action in rem in favor of the owner of
the tenement of the easement and against any possessor of the estate.
but only a right of use for a special and limited purpose.
 It gives the holder of the easement an incorporeal interest on
the land, which is non- possessory in character, but grants no
title thereto.
 Whatever may be the kind of easement, the right is always enjoyed over
an immovable property, or from the point of view of the encumbrance,
the encumbrance is always imposed upon an immovable property.
 The term "immovable" in Article 613 of the NCC should be
understood in its ordinary or vulgar connotation as referring to
those which are, by their nature, cannot be moved from one
place to another - such as lands, buildings and roads.
 Hence, it is legally impossible to impose an easement over
another easement.
 It is a right which is enjoyed over another's property, or jura in re aliena.
 By its very nature, and when considered with reference to the
obligations imposed on the servient estate, an easement
involves an abnormal restriction on the property rights of the
servient owner and is regarded as a charge or encumbrance
on the servient estate.
 As such, it operates as a limitation on the title of the owner of
the servient estate, specifically, his right to use (jus utendi).
 Inasmuch as every easement or servitude is a limitation upon
one's ownership, it follows that no man has a right of servitude
in a thing of which he is the owner: Nulli res sua servit. For if he
had, he would have a right in the thing against himself which is,
of course, absurd.
 Hence, it is impossible to have an easement over one's own
property in one's own favor because things serve their owner
by reason of ownership and not because of any servitude.
 As explained by the Court, the dominant estate cannot be the
servient estate at the same time.
 One of the characteristics of an easement is that it can be
imposed only on the property of another, never on one's own
property.
 An easement can exist only when the servient and the
dominant estates belong to different owners.
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  Consequently, if there is a merger in the same person of the estate or praedium serviens, for the latter's ownership of any
ownership of the dominant and servient estates, the easement use or advantage of the other, called immovable or estate.
is extinguished. the dominant estate or praedium
 The existence of a dominant estate and a servient estate dominans If the servitude is established for
incompatible with the idea that both estates belong to the same the advantage of a given person,
While it may appear that the right of the same is inseparable from his
person.
servitude (jus servitutes) is enjoyed person, and necessarily ceases
 Since easement is constituted on the corporeal immovable by the owner or occupant of the at his death, unless there is
property of another person, an acknowledgment of the dominant estate, he does so only by stipulation to the contrary.
easement is an admission that the property belongs to another reason of such occupancy.
In addition, the right to personal
Kinds of Easement In other words, the right of servitude servitude does not extend to the
As to recipient of benefit (jus servitutes) that is being enjoyed successors-in-interest of the
Real (praedial) easement or Personal easement or servitude by the occupant of the dominant person to whom the right is
servitude estate is inseparable from the granted.
It is an encumbrance imposed It is an encumbrance imposed occupation of the tenement or estate.
upon an immovable for the benefit upon an immovable for the benefit
of another immovable belonging to of a community, or of one or more Hence, in the ultimate analysis, the
a different owner. persons to whom the encumbered right of servitude resides in the estate
estate does not belong." (praedium) itself and not in the
A real servitude, therefore, requires physical person who successively
the existence of two distinct In personal servitude, there is occupies or enjoys it.
immovables belonging to different therefore no owner of a dominant
owners to each of which it relates. tenement" to speak of and the In the words of the Court and the Civil
easement pertains to persons Code, easement is inseparable from
The immovable in favor of which without a dominant estate. the estate to which it actively or
the easement is established is passively belongs
called dominant estate"; that In personal servitude or easement,
which is subjected thereto, the the person in whose favor the
"servient estate. " easement is constituted need not
be the owner of any certain estate As to its source
Without these two estates or and does not require a dominant Legal Easement Voluntary Easement
tenements, there can be no real or estate because the person in by law by will of the owners
praedial servitude. whose favor the easement is The courts cannot impose or constitute any servitude where none existed.
constituted need not be a property
owner. They can only declare its existence if in reality it exists by law or by the
will of the owners. There are therefore no judicial easements.
that which is constituted by law for constituted simply by will or
public use or for private inter est. agreement of the parties.

Distinction between real and personal servitude Legal easements which have for Note that only the owner may
their objects public use are called constitute a servitude over his
Real or praedial servitude Personal servitude "public legal easements" those property since it operates as a
is said to be imposed upon one of the is due, not to a thing but to a for the interest of private persons, limitation upon his title or
two estates, called the servient person, independently of the

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on the other hand are called
"private legal casements.
Examples of legal easements are
the following:
1. Easement relating to waters
(Arts. 637-648, NCC)
2. Easement of right of way Arts.
649-657, NCC)
3. Easement of party wall (Arts
658-666, NCC)
4. Easement of light and view
(Arts. 667-673, NCC)
5. Easement of drainage of
buildings Arts. 674-676, NCC)
6. Easement of distances
7. (Easement of nuisance (Arts.
682 683, NCC), and
8. Easement of lateral and
subjacent support (Arts, 684-
687, NCC).
ownership. Or, to be more
accurate, it is only the owner who
can create a servitude that will bind
the servient estate (praedium
serviens).
All other servitudes which are
imposed by non-owners such
usufrucutary, possessors in good
faith, lessee, etc) do not bind the
servient estate but only the per
mon establishing the same.
Necessarily, such servitudes shall
terminate upon the termination of
the right of the person establishing
the same
As to its exercise: As to its exercise, it is either: continuous or
discontinuous, apparent or non apparent, and positive or negative.
As to its exercise
Continuous Discontinuous
Easements are either continuous or discontinuous according to the
manner they are exercised, not according to the presence of apparent
signs or physical indications of the existence of such easements.
An easement is continuous if its use if it in used at intervals and it
is or may be, incessant without the depends on the act of man, like
intervention of any act of man, like the the easement of right of way.
easement of drainage Stated
otherwise, continuous easements are In other words discontinuous
those of which the enjoyment is, or easements are those, the
may be, continual, without the enjoyment of which can be had
necessity of any actual interference only by the interference of man.
by man.
An easement of right of way is
A good example of a continuous an example of a discontinuous
easement is the easement of light and easement because its use is at
view. intervals and depends upon the
acts of man: it can be exercised
only if a man passes or puts his
feet over somebody else's land.
As to its exercise
Apparent Easement Non-Apparent Easement
Apparent easements are those Those which show no external
which are made known and are indication of their existence. An
continually kept in view by external easement of not building be yond a
signs that reveal the use and certain height is a good example of
enjoyment of the same. a non-apparent easement.
Thus, a road (which reveals a right
of way) and a window (which
evidences a right to light and view)
are apparent easements.
As to its exercise
Positive Easement Negative Easement
One which imposes upon the When it prohibits the owner of the
owner of the servient estate the servient estate from doing
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obligation of allowing something to something which he could lawfully
be done on his property (servitutes do if the easement did not exist
in patendo). (servitutes in non faciendo). Characteristics of Easement
1. Inherence or Intransmissibility
In positive easement, the right of Negative easement, it must be  An easement is a real right which falls over the property itself. Or, from
the owner to exclude any person noted, does not involve any the viewpoint of the obligation imposed, the servitude is imposed upon
from the enjoyment of his property, restriction on the owner's right to the property itself and not upon its owner.
which right is guaranteed in Article exclude. Instead, the owner is  Hence, it is said that the easement or servitude is but an
429 of the NCC, is restricted, in the simply prohibited from doing accessory to the tenement of which it forms part.
sense that he is obliged to allow something on his property which he
 In the words of Article 617 of the NCC, the easement is
something to be done on his could law fully do if the easement
inseparable from the estate to which it actively or passively
property. did not exist.
belongs.
An example of a positive easement An example of a negative
is the easement of right of way. easement is an easement not to  As a consequence, it cannot, therefore, be alienated or mortgaged
build higher (altius non tollendi). separately from the estate to which it forms part.
 In addition, the servitude can be availed of against every person
who may subsequently acquire ownership of the estate subject to
 An easement may not consist, however, in the right to demand that the such encumbrance.
servient owner does something feruitutes in faciendo).
 For if it consists in the right to an act to be done by the owner of 2. Indivisibility
the servient estate, such right is merely in the nature of a jus in  Easements or servitudes are indivisible
personam against that determinate person.  This is but a necessary consequence of the principle of
 Hence, the true reason why a servitude cannot consist in faciendo inseparability of the easement or servitude from the estates to
is that, if it did, the right created could not be jus in rem since the which it relates.
same will not fall over the thing but on the person.
 While Article 616 of the New Civil Code may seem to allow a  As a consequence, even if the servient and dominant estates are
servitutes in faciendo when it says that positive easement may divided between two or more persons, the easement or servitude
consist in the servient owner doing something himself. the continuesd to attach to the estates originally affected.
easements in faciendo here are only those which are considered  In case of division of the servient state into several parts for
as accessory obligations to a praedial servitude. example, all such part, though divided, shall continue to bear the
 As aptly observed by Senator Tolentino, citing Ruggiero, an encumbrance.
casement can never consist in a personal prestation to do on the  In case of division of the dominant estate into several parts, each
part of the owner of the servient estate, the obligation imposed and every part shall continue to enjoy the easement in its entirety
upon him is always negative. In other words, whether the and without any modification.
easement is a positive negative one, the obligation imposed upon
the servient owner is always a negative one.
 In positive easement, for example, the obligation of the servient
owner is not to interfere in the of his property by the holder of the
Modes of Acquiring Easements
easement.
 There are two modes of acquiring easements:
 In negative easement, on the other hand, the obligation of the
1. by title and
servient owner is to refrain from doing something on his property
2. by prescription

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 All kinds of easements whether continuous or discontinuous, apparent
or non-apparent, positive or negative, can be acquired by title.
 But only continuous and apparent easements may be acquired by virtue
of prescription.
 In other words, in order for an easement to be acquired by virtue of
prescription it must be both continuous and apparent.
 By title as a mode of acquiring servitude, the Civil Code refers to any
juridical act which gives birth to the servitude such as the law,
donations, contracts and wills.
 Hence. the act may either be inter vivios or mortis causa, may be
onerous or gratuitous.
 An easement of right of way may be apparent but it is not a continuous
easement because its use is at intervals and depends upon the acts of
man.
 It can be exercised only if a man passes or puts his feet over
somebody else's land.
 Like a road for the passage of vehicles or persons, an easement of
right of way of railroad tracks is discontinuous because the right is
exercised only if and when a train operated by a person passes over
another's property.
 In other words, the very exercise of the servitude depends upon the
act or intervention of man which is the very essence of
discontinuous easements.
 The presence of more or less permanent railroad tracks does not, in
any way, convert the nature of an easement of right of way to one
that is continuous.
 It is not the presence of apparent signs or physical indications
showing the existence of an easement, but rather the manner of
exercise thereof, that categorizes such easement into continuous or
discontinuous.
 The presence of physical or visual signs only classifies an easement
into apparent or non apparent.
 Hence, a right of way is not acquirable by prescription.
 To stress, Article 622 of the New Civil Code states that
discontinuous easements, whether apparent or not, may be acquired
only by virtue of a title.
 In Liwag v. Happy Glen Loop Homeowners Association, Inc., the Court
ruled that the water facility on a certain lot in a subdivision, which is an
encumbrance for the benefit of the community continue and apparent
easement, because it is used incessantly without human intervention,
and because it is continually kept in view by the overhead water tank,
which reveals its use to the public.
 Since the facility was continuously used for more than 30 years as
the residents' sole source of water, it was held that an easement of
water facility has already been acquired through prescription.
Acquisition of Easement Through Prescription
 If the easement is both continuous and apparent, it may be acquired by
virtue of prescription within a period of 10 year.
 The commencement of the ten-year period of prescription will depend
on whether the easement in positive or negative, as follows
1. If the easement is positive, the 10 year period is counted 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, or
2. If the easement is negative, the 10 year period is counted 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 casement.
Application in Easement of Light and View:
1. Opening a window in one's own wall:
 This act, per se, does not create an easement because the property
used by its owner merely in the exercise of ownership and not as an
exercise of an easement.
 The owner of the adjacent property on the other hand, may cover
such windows by building on his own land or raising wall
contiguously to the wall in which the windows are opened.
 In this situation, an easement is created only when the one who
opened the window will prohibit or restrain the owner of the adjacent
property from doing anything which may tend to cut off or interrupt
the light or block the view of the former.
 The easement, being a negative one, is acquired by prescription
only after the lapse of 10 years counted from the day on which the
owner of the dominant estate forbade by an instrument
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 acknowledged before a notary public, the owner of the servient
estate, from executing an act which would be lawful without the
easement.
2. Opening a window in a party wall.
 If the window, on the other hand, is opened in a party wall, the
easement of light and view positive and the 10-year period of
prescription commence from the time of the opening of the window.
 The reason for this is because no part owner can, without the
consent of the other make in a party wall window or opening of any
kind, as provided in Article 667 of the NCC.
 Hence, the very fact of making such openings in such a wall might
therefore, be the basis for the acquisition of prescriptive title without
the necessity of any active opposition, because it always
presupposes the express or implied consent of the other part owner
of the wall, which consent, in turn, implies the voluntary waiver of the
right of such part owner to oppose the making of such openings or
windows in such a wall.
3. Opening a window in another's wall
 The same rule will apply if the window is opened on the wall belonging
to one's neighbor.
 The 10-year prescriptive period commences from the time of the
opening of the window.
 Stated otherwise, if anyone shall open window in the wall of his
neighbor, through which the light enters his house, by this sole fact
he shall acquire a prescriptive title to the easement of light, if the
time fixed by law (10 years) expires without opposition on the part of
the owner of the wall.
Proof of Easement
 The presumption is always against the existence of an easement for
property is always presumed free from any and all encumbrances.
 Hence, the law requires that the easement must be acquired either by
a title or by prescription
 If the easement is acquired through prescription, necessarily there is no
document evidencing its existence and the same may only be
established in a judicial proceeding through preponderance of evidence.
 If the easement, however, is one which cannot be acquired through
prescription and there is no document evidencing the same, or such
document is no longer available for whatever reason, the absence of
such proof may be cured by n deed of recognition by the owner of the
servient estate.
 If the owner of the servient estate denies the existence of the
easement or refuses to execute the deed of recognition, the existence
of the easement may nonetheless be established in a judicial
proceeding through preponderance of evidence.
 Note that the existence of a title which serves as the basis for the
easement may be proven through oral testimonies of witnesses as the
same is not covered by the Statute of Frauds.
 Even if the servitude is imposed upon a parcel of land and the
obligation arises from an oral contract, such agreement is not covered
by the Statute of Frauds considering that not all agreements affecting
land must be put in writing to attain enforceability.
 Under pure of Article 107 of the New Civil Code, such formality is only
required of contracts involving leases for longer than one year, or for
the sale of real property or of an interest therein.
4. Easement by Apparent Sign or Legal Presumption
Requisites for creation of easement
1. That there exist an apparent sign of servitude between two estates:
2. That at the time of the establishment of such sign, the ownership of
the two estates resides in one person:
3. That the sign of the easement be established by the owner of both
estates because the article will not apply when the easement is
established by a person different from the owner,
4. That the ownership over the two estates is later on divided, either by
alienation or partition, and
5. That at the time of division of owner ship, nothing is stated in the
document of alienation or partition contrary to the easement nor is the
sign of the easement removed before the execution of the document.
Effect of requisites are present
 An easement is thereby created by way of title through operation of law
upon the division of ownership of the two estates unless, at the time of
the division of ownership of the two estates, the contrary should be
provided in the title of conveyance of either of them or the apparent sign
should be removed before the section of the deed.
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  Stated otherwise, when the owner of two properties alienates one
of them and an apparent sign of easement exist between the two
estates entitlement to it continues, unless there is a contrary
agreement, or the indication that the money removed before the
execution of the deed.
Applies to succession
 Amor v. Tolentino, Article 624 of the NCC also applies to a division of
property by succession.
Illustration:
 For example, "A" and "B" used to be co-owners of a parcel of land "A,”
during the existence of the co-ownership constructed a house on one
hall portion of the co-owned property.
 On the northeastern Nide of the house, there are windows and
doon which serve as passages for light and view Subsequently, and
"B" executed a deed of partition whereby the portion where the
house and was allotted to "A” while the other half was allotted to "B”
 The existence of the doors and window 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.
 If nothing has been stated in the deed of partition contrary to the
easement and "A” did not renounce the use of the windows and
doors, either by stipulation or by actually closing them permanently,
the easement is created by title pursuant to Article 624 upon the
actual partition of the co-owned property.
Rights and Obligations of the Owners of the Dominant and
Servient Estates
Owner of Servient Estate
Effect of Easement Upon Servient Estate
 An easement consists in the limited use and enjoyment of the property
subjected to such encumbrance but without possession. in other words,
it gives the holder of the easement an incorporeal interest on the
property but grants no title thereto.
 Hence, the owner of the servient estate retains the ownership of the
portion on which the easement is established and may use the same
in which manner as not to affect the exercise of the easement.
 For example, when an easement of right of way in granted to another
person, the rights of the property's owner are limited.
 An owner may not exercise some of his or her property rights for the
benefit of the person who was granted the easement of right of way.
 While the owner of the servient estate may do anything on his
property as he pleases in the exercise of his right of enjoyment, he
may not enclose, however, the property because such act will affect
the exercise of the easement.
 The owner of the servient estate has an obligation not to obstruct or
hinder the free passage over the servient estate of any person entitled
to make use of it.
 As such, the holder of the easement may demand for the rest of south
obstruction.
Change of Place or Manner of Use
 While the owner of the servient estate is prohibited from impairing, in
any manner whatever the use of the servitude he may, however, change
the place of the easement or the manner of its use provided the
requisites mentioned below are satisfied.
 Requisites
1. The place originally assigned or the manner established for the use
of the easement has become very inconvenient to the owner of the
servient estate or it has prevent him from making any important
works repairs or improvements thereon;
2. The servient owner offers another place or another manner of use
equally convenient;
3. 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, and
4. The expenses that will be incurred in the process shall be borne by
the owner of the servient estate.
Owner of Dominant Estate
 Extent of rights granted:
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 Upon the establishment of an easement, all the rights necessary for its
use are considered granted. Hence, the establishment of a principal
element carries with it the grant of accessory ones.
 For example, an easement for drawing waters carries with it the
easement of right of way.
 As a consequence of the foregoing rule, the owner of the dominant state
shall have the right to make any works on the servient estate if the same
be necessary for the use and preservation of the servitude.
 This right however, is subject to compliance with the following
requirements:
1. The work must be necessary for the use and preservation of the
servitude,
2. The work is done at the expense of the owner of the dominant
estate:
3. The work can be done without altering the servitude or rendering it
more burdensome
4. The owner of the servient estate is first notified of the intended
work; and
5. The time and manner of making the work should be the most
convenient to the owner of the servient estate or it is done in such
manner that it causes the least inconvenience to the owner of the
servient estate.
 If there be several owners of the dominant estate, the expenses that will
be incurred in making the work shall be borne by all, in proportion to the
benefits which each may derive therefrom.
 Anyone who does not wish to contribute may exempt himself by
renouncing the casement for the benefit of the other.
Limitations Upon Rights of Owner of Dominant Estate
 While it may appear that the right of servitude (jus servitutes) is enjoyed
by the owner or occupant of the dominant estate, he does so only by
reason of such occupancy.
 In other words, the right of servitude (jus servitutes) that is being
enjoyed by the owner or occupant of the dominant estate is
inseparable from the occupation of the tenement or estate.
 Hence, in the ultimate analysis, the right of servitade (jus servitutes)
resides in the estate praedium) itself and not in the physical person
who successively occupies or enjoys it.
 For this reason, the owner of the dominant estate cannot use the
easement for the right of servitude) except for the benefit of the
immovable originally contemplate for such right, to repeat, attached
to the immovable itself and not to its owner.
 Neither may the owner of the dominant estate exercise the easement in
any other manner than that previously established.
 When the easement has been established in a general way, without
any specific purpose, it can be used for all the needs of the
dominant estate and may be adopted to any new modification in the
tenement.
 However when a particular purpose has been specified, the rule is
that the easement cannot be used for a different purpose except
when the change of use does not make the easement more
burdensome, in which case it may be allowed.
 The owner of the dominant states cannot violate any of the
following prescribed restrictions on its rights on the servient
estate, to wit:
1. It can only exercise rights necessary for the use of the easement;
2. It cannot use the easement except for the benefit of the immovable
originally contemplated;
3. It cannot use theme any other manner than that previously
established;
4. It cannot construct anything on it which is not necessary for the use
and preservation of the easement
5. It cannot alter or make the easement more burdensome;
6. It must notify the servient estate owner of its intention to make
necessary works on the servient estate, and
7. It should choose the most convenient time and manner to build said
works to use the least convenience to the owner of the servient
state any violation of the above constitutes impairment of the
easement.
Modes of Extinguishing Easement 204 I Modes of Extinguishing
Easement
1. Merger.
2. Non-us,
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 3. Impossibility of use
4. Expiration of term
5. Fulfillment of condition
6. Renunciation
7. Redemption
8. Annulment or rescission of title constituting the easement
9. Termination of the right of the grantor
10. Abandonment of the servient estate, and
11. Eminent domain
Merger
 An easement is a right enjoyed over another's property, or jure in re
aliena.
 Therefore, nobody can have an easement over his own property,
nimini sua res servit, for a man should not use that which belongs to
him as if it were a service only, but as his own property.
 One of the characteristics of an easement is that it can be imposed
only on the property of another, never on one's own property.
 An easement can exist only when the servient and the dominant
estates belong to different owners.
 For this reason, a real or praedial easement requires the existence
of two distinct immovables belonging to different owners.
 As a consequence, if there is a merger in the same person of the
ownership of the dominant and servient estates, the easement in
extinguished.
 For the same reason, a personal easement established for the
benefit of a particular person is also extinguished if the said holder of
the easement acquires ownership of the servient estate.
 But if the personal easement in established for the benefit of a
community, the fact that one of the members of the community
acquires ownership of the servient estate will not result in a genuine
merge that will terminate the personal easement.
 For real or praedial easement to be extinguished by way of merger,
the merger must involve full ownership of both the dominant and
servient estates.
 Thus, it has been held that when a person acquires only a part
interest in the servient estate it cannot be said that ownership of the
dominant and servient estates has been merged in the same
person.
 It is not necessary, however, that the merger takes place to the full
extent of the property being sufficient that the merger takes place
with regard to that part affected by the servitude or that part for the
benefit of which the servitude was established.
Non User
 Period
 Non-user, as a mode of extinguishment of easement, presupposes that
the easement was used but later abandoned.
 For easement to be extinguished under this mode, it is necessary that
the non-u must have lasted for a period of 10 years.
Counting of 10-year period
 The computation of the 10-year period of extinctive prescription shall
depend on whether the easement is continuous or discontinuous.
 If The easement in discontinuous, the 10-year period is computed
from the day in which the easement was not used.
 Since the use of the easement depends upon the act of man, if no
such act has been executed for period of 10 years, the easement is
extinguished.
 If the easement is continuous in which case the use of the easement
does not depend upon the acts of man, the 10 year period is counted
from the day which an act contrary to the easement took place.
 For example, if the owner of the lower estate constructed a series of
dike to prevent the Bow of excess water coming from the higher
estates, the legal easement of drainage is extinguished 10 years after
the construction of the dikes.
In Case of Co-ownerhsip
 the dominant estate is under a state of co-ownership, the use of the
easement by any of the co-owner will prevent the running of the 10 year
prescriptive period of extinctive prescription by nan user.
 This must be the rule since each co-owner of property which is held
pro indiviso has the right to exercise his rights ever the whole property
and may use and enjoy the same with no other limitations other than
that he shall not injure the interest of his co-owners.
 In addition, since co-ownership is a form of trust, the position by a co-
owner of the entire dominant estate is considered for the benefit of all.
9
 Impossibility of Use Private Legal Easements under the Civil Code
 If there are circumstances which rendered impossible the use of the
easement, the same is merely suspended until subsequent conditions 1. Easement relating to waters (Arts. 637-648, NCC);
shall again permit the use of the easement. 2. Easement of right of way (Arts. 649-657, NCC);
3. Easement of party wall (Arts. 658-666, NCC);
 In the following situations, however, the easement is not merely 4. Easement of light and view (Arts. 667-673, NCC);
suspended but extinguished 5. Easement of drainage of buildings (Arts. 674-676,NCC);
1. If the circumstances which cause the impossibility of use shall be 6. Easement of distances (Arts. 677-681, NCC);
irreparable. in which case, the easement in absolutely extinguished 7. Easement of nuisance (Arts. 682-683, NCC): and
or 8. Easement of lateral and subjacent support (Arts. 684687, NCC).
2. b) If the circumstances which cause the impossibility of use are
reparable, the easement is likewise extinguished if the period of
extinctive prescription by non-user has already lapsed. Easement Relating to Waters

 In the latter case, the circumstance which renders the use of the The following are the easements relating to waters:
easement impossible must not be in the nature of a fortuitous event,
1. Easement of drainage of waters (Art. 637, NCC; Art. 50, Water
otherwise, the easement may not be extinguished by non-user, in which
Code);
case, the easement is merely suspended.
2. Easement for public use (Art. 638, NCC; Art. 51, Water Code);
 According to Senator Tolentino, the non-user must be due to
3. Easement for drawing waters (Arts. 640-641, NCC);
voluntary abstention by the dominant owner, and not to fortuitous
4. Easement of abutment of dam (Art. 639, NCC);
event, because the bonus of this cause of extinguishment is
5. Easement of aqueduct (Arts. 642-646, NCC).
presumptive renunciation.

Renunciation and Redemption

Renunciation
The renunciation of the easement
by the owner of the dominant
estate must be specific, clear and
express Hence, a tacit renunciation
will not be sufficient.
Redemption
It is the release of the servient
estate from the servitude upon
agreement of the owners of both
and upon payment by the owner of
the servient estate of the
corresponding consideration to the
owner of the dominant estate.
Easement of Drainage of Waters:
When easement exist:
 An easement exists when, based on the physical condition of two
estates, waters descend naturally and without the intervention of
man from a higher estate (the dominant estate) to a lower estate
(the servient estate).
 This is called "easement of drainage of waters."

Obligation of owner of lower estate

[Title VII — Easements or Servitudes]  The lower estate is obliged to receive the waters which naturally
[Chapter 2: Legal Easements] and without the intervention of man flow from the higher estates, as
(Arts. 634-687, NCC) well as the stones or earth which they carry with them.

10
  Such being the case, the owner of the lower estate may not
construct works, such as dikes, walls or hedges, which will block or
impede the flow of waters, unless he provides an alternative
method of drainage.
Rights and obligations of owner of higher estate:
 The owner of the higher estate, in turn, may not construct works
which will increase the burden or increase the natural flow.
 The owner of the higher estate shall also have the right to resort to
artificial means for the purpose of draining waters from higher to
lower estates but in the exercise of such right, he is obliged:
(1) to select the routes and methods of drainage that will
cause the minimum damage to the lower lands; and
(2) to pay just compensation to the owner of the lower
estate.
Lost of easement through non-user:
 Since the enjoyment of this servitude does not depend upon acts of
man because the descent of water from the higher to the lower
estates is due to the force of gravity, this easement must be
classed among the continuous ones and it is subject to extinction
by non-user for a period of ten years computed from the day on
which an act contrary to the easement took place, such as building
of dikes.
Easement for Public Use:
When easement exists:
 The banks or rivers and streams and the shores of the seas and
lakes throughout their entire length and within a zone of three
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.
 However, 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.
 In one case, when the developer of a subdivision filed an action for
recovery of possession against the occupants of a property
designated as open space of the subdivision, the trial court
dismissed the complaint on the ground that the property is within
the three-meter legal easement of Mahabang Ilog Creek.
 The Court ruled that the three-meter strip/zone is public land.
 As to the issue of who is the proper party entitled to institute a case
with respect to the three-meter strip/zone, the Court ruled that both
the Republic of the Philippines, through the OSG and the local
government, may file an action depending on the purpose sought to
be achieved.
 The former shall be responsible in case of action for reversion
under C.A. No. 141, while the latter may also bring an action to
enforce the relevant provisions of R.A. No. 7279 (otherwise known
as the Urban Development and Housing Act of 1992).
Easement for Drawing Waters:
When easement exists:
 The compulsory easement for drawing waters 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.
Carries with it easement of right of way:
 This kind of easement, upon its establishment, carries with it the
easement of right of way.
 In other words, the owner of the servient estate shall also have the
obligation to allow passage to persons and animals to the place
where the easement is to be used.
 As such, the indemnity to be paid for the easement for drawing
waters or for watering animals must include indemnity for the
easement of right of way.1166
Easement of Abutment of Dam:
When easement exists:
 Whenever it is necessary to build a dam for the purpose of diverting
or taking waters from a river or brook, or for the use of any other
continuous or discontinuous stream, and the person who is to
construct it is not the owner of the banks or of the land on which
11
 must support it, he may establish an easement of abutment of dam
only upon payment of the proper indemnity to the owner of the
affected estates.
Easement of Aqueduct:
When easement exists:
 If a person wishes to use upon his estate any water of which he can
dispose, he shall have the right to make it flow through 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.
 This is called "easement of aqueduct."
Requisites for establishment of easement of aqueduct:
1. That he who wants to establish the easement of aqueduct must be able
to prove that he can dispose of the water;
2. He must also prove that it is sufficient for the use for which it is intended;
3. He must show that the proposed right of way is the most convenient and
the least onerous to third persons affected; and
4. He must indemnify the owners of the servient estates (intervening
estates), as well as the owners of the lower estates upon which the
waters may filter or descend.
Limitation:
 This kind of easement, if established for private interest, may not be
imposed on buildings, courtyards, annexes, or outhouse, or on
orchards or gardens already existing.
Rights of owners of servient estates:
 The existence of an easement of aqueduct does not, however,
curtail the right of the owner of the servient estate to close or fence
his estate but he may not refuse the entry of the holder of the
easement on his estate if the purpose of such entry is the cleaning,
repair or replacement of the aqueduct or removal of any obstruction
therefrom.
 The existence of such easement does not likewise prevent the
owner of the servient estate from building over these aqueduct
provided that the same does not cause damage to the aqueduct or
render the necessary repairs and cleanings thereon impossible.
Nature of easement:
 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.
 Hence, an easement of aqueduct may be acquired either by title or
by prescription.
Compulsory Easement of Right of Way
Voluntary and compulsory right of way distinguished:
An easement of right of way may only be acquired by virtue of a title, either
 voluntarily (Arts. 688-693 of the NCC) or
 compulsorily (Arts. 649-657 of the NCC).
Voluntary Easement
 A voluntary easement of right of way is constituted by covenant and
does not, therefore, require that the dominant estate be isolated
and without an adequate outlet to a public highway.
 The opening of an adequate outlet to a highway can extinguish only
legal or compulsory easements, not voluntary easements.
 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.
 A voluntary easement of right of way, like any other contract, could
be extinguished only by mutual agreement or by renunciation of the
owner of the dominant estate.
Requisites for Grant of Compulsory Right of Way:
1. That the dominant estate is surrounded by other immovables and has
no adequate outlet to a public highway (Art. 649, par. 1);
2. There must be payment of proper indemnity (Art. 649, par. 1, end);
3. That the isolation was not due to acts of the proprietor of the dominant
estate (Art. 649, par. 4); and
12
 4. That the right of way claimed is 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 (Art. 650).
Burden of Proof:
 By its very nature, and when considered with reference to the
obligations imposed on the servient estate, an easement involves
an abnormal restriction on the property rights of the servient owner
and is regarded as a charge or encumbrance on the servient
estate.
 Thus, it is incumbent upon the owner of the dominant estate to
establish by clear and convincing evidence the presence of all the
preconditions before his claim for easement of right of way be
granted.
 Stated otherwise, the burden of proving the existence of the
prerequisites to validly claim a compulsory right of way lies on the
owner of the dominant estate.
Requirement of Isolation:
 The estate, however, need not be totally landlocked as the isolation
of the dominant estate is also dependent on the particular need of
the dominant owner.
 What is important to consider is whether or not a right of way is
necessary to fill a reasonable need therefor by the owner.
 Thus, as Manresa had pointed out, if the passageway consists of
an "inaccessible slope or precipice," it is as if there is no
passageway, that is, one that can sufficiently fulfill the dominant
owner's necessities, although by the existence of that passageway
the property cannot be truly said that the property is isolated.
 So also, while an existing right of way may have proved adequate
at the start, the dominant owner s need may have changed since
then, for which Article 651 of the Code allows adjustments as to
width.
 An owner cannot, by his own act, isolate his property from a public
highway and then claim an easement of way through an adjacent
estate.
 In short, the claimant of a right of way must not himself procured
the isolation of his property.
 According to the last paragraph of Article 649, the "easement is not
compulsory if the isolation of the immovable is due to the
proprietor's own acts."
 On that matter, the owner of the dominant estate is bound by his
predecessor-in-interest's act of causing the isolation of her
property.
 Thus, when the claimant of a right of way had already been granted
an adequate access to the public highway through another estate
but the same was no longer in use because he himself had closed it
off by erecting a stonewall on his lot at the point where such
passageway began, he cannot demand for a compulsory right of
way in an alternative location.
Requirement of Inadequacy of Outlet to Public High-way:
To be entitled to a compulsory right of way, it is necessary that:
1. the estate of the claimant of a right of way must be isolated
2. and without adequate outlet to a public highway.
The true standard for the grant of the legal right is "adequacy."
 In order to justify the imposition of the servitude of right of way,
there must be a real, not a fictitious or artificial necessity for it.
 Mere convenience for the dominant estate is not what is required by
law as the basis for setting up a compulsory easement.
 Even in the face of a necessity, if it can be satisfied without
imposing the servitude, the same should not be imposed.
 This easement can also be established for the benefit of a
tenement with an inadequate outlet, but not when the outlet is
merely inconvenient.
 Thus, when a person has already established an easement of this
nature in favor of his tenement, he cannot demand another, even if
the first passage has defects which make passage impossible, if
those defects can be eliminated by proper repairs.
 The convenience of the dominant estate has never been the gauge
for the grant of compulsory right of way.
13
  To be sure, the true standard for the grant of the legal right is
adequacy. Hence, when there is already an existing adequate
outlet from the dominant estate to a public highway, even if the said
outlet, for one reason or another, be inconvenient, the need to open
up another servitude is entirely unjustified.
 Thus: In Cristobal u. CA, the Court disallowed the easement
prayed for because an outlet already exists which is a path walk
located at the left side of petitioners property and which is
connected to a private road about five hundred (500) meters long.
The private road, in turn, leads to Ma. Elena Street, which is about
2.5 meters wide, and finally, to Visayas Avenue. This outlet was
determined by the Court to be sufficient for the needs of the
dominant estate.
 (b) Also in Floro v. Llenado, the Court refused to impose a right of
way over petitioner's property although private respondent's
alternative route was admittedly inconvenient because he had to
traverse several ricelands and rice paddies belonging to different
persons, not to mention that said passage is impassable during the
rainy season.
 (c) In Ramos u. Gatchalian Realty, Inc. the Court refused to grant
the easement prayed for even if petitioner had to pass through lots
belonging to other owners, as temporary ingress and egress, which
lots were grassy, cogonal, and greatly inconvenient due to flood
and mud because such grant would run counter to the prevailing
jurisprudence that mere convenience for the dominant estate does
not suffice to serve as basis for the easement.
At the point Ieast prejudicial:
 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.
 Article 650 of the Civil Code provides that the easement of right-of-
way shall be established at the point least prejudicial to the servient
estate, and, insofar as consistent with this rule, where the distance
from the dominant estate to a public highway may be the shortest.
 Under this guideline, whenever there are several tenements
surrounding the dominant estate, the right-of-way must be
established on the tenement where the distance to the public road
or highway is shortest and where the least damage would be
caused.
 If these two criteria (shortest distance and least damage) do not
concur in a single tenement, the Court have held in the past that the
least prejudice criterion must prevail over the shortest distance
criterion
 Thus:
(a) 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.
(b) As between a right of way that would demolish a fence of strong
materials to provide ingress and egress to a public highway and
another right of way which although longer will only require a van or
vehicle to make a turn, the second alternative should be preferred
(c) As between a right of way that would destroy the wire fence and
a house and another right of way which although longer will only
traverse two vacant lots, the second alternative should be
preferred.1198
Payment of Indemnity:
Prepayment means the delivery of the proper indemnity required by law for
the damage that might be incurred by the servient estate in the event the
legal easement is constituted.
 The fact that a voluntary agreement upon the extent of
compensation cannot be reached by the parties involved is not an
impediment to the establishment of such easement.
 Precisely, the action of the dominant estate against the servient
estate should include a prayer for the fixing of the amount which
may be due from the former to the latter
 In the case of a legal easement, Article 649 of the Civil Code
prescribes the parameters by which the proper indemnity may be
fixed.
 If the intention is to establish a permanent passage, the second
paragraph of Article 649 of the Civil Code particularly applies.
 The Civil Code categorically provides for the measure by which the
proper indemnity may be computed: value of the land occupied plus
the amount of the damage caused to the servient estate.
14
  Thus, to award indemnity using factors different from [those] given
by the law is a complete disregard of these clear statutory
provisions and is evidently arbitrary.
 In one case, petitioners argue that it is unfair to require them to pay
the value of the affected road lots since the same is tantamount to
buying the property without them being issued titles and not having
the right to exercise dominion over it.
 The Court held the argument to be untenable.
 The Court explained: "Payment of the value of the land for
permanent use of the easement does not mean an alienation of the
land occupied.
 In fact under the law and unlike in purchase of a property, should
the right of way no longer be necessary because the owner of the
dominant estate has joined it to another abutting on a public
highway, and the servient estate demands that the easement be
extinguished, the value of the property received by the servient
estate by way of indemnity shall be returned in full to the dominant
estate. This only reinforces the concept that the payment of
indemnity is merely for the use of the right of way and not for its
alienation."
 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.
 However, whenever a piece of land which is acquired by sale,
exchange or partition is surrounded by other states of the vendor,
exchanger or co-owner, the owner is entitled to a grant of right of
way without indemnity. Such grant of right of way is deemed a tacit
condition of the contract and essentially voluntary in character
inasmuch as the estate is surrounded by the estate of others
through the will of the parties.
 But if the owner acquires his land by way of a simple donation,
there is no such tacit condition because the donor receives nothing
from the donee.
 In this latter case, therefore, the donee can only demand fora right
of way after payment of the proper indemnity
Width of Easement:
 Article 651 of the NCC provides that “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." This is taken to mean that under the law, it is the needs of
the dominant property which ultimately determine the width of the
passage. And these needs may vary from time to time.
 For example, when petitioner started out as a plant nursery
operator, he and his family could easily make do with a few
pushcarts to tow the plants to the national highway.
 But the business grew and with it the need for the use of modern
means of conveyance or transport. Manual hauling of plants and
garden soil and use of pushcarts have become extremely
cumbersome and physically taxing.
 In this case, the Court held that the petitioner is entitled to a wider
easement to accommodate his jeepney since that is a reasonable
and necessary aspect of the plant nursery business.
Who May Claim Compulsory Right of Way:
 It is the owner, or any person who by virtue of a real right may
cultivate or use any immovable surrounded by other immovable
pertaining to other persons, who is entitled to demand a right of way
through the neighboring estates.
 Thus, in the case of Spouses Dela Cruz v. Ramsical, the Court held
that the petitioners therein are not entitled to demand for a
compulsory right of way because they are not the owners of the
supposed dominant estate and neither do they possess a real right
to use such property.
 While a usufructuary is entitled to demand a right of way pursuant
to Article 649, a mere lessee does not enjoy the same right. With
respect to the latter, his action is against the lessor who is bound to
maintain him in the enjoyment of the property.1211
Extinguishment of Right of Way:
 If the right of way is no longer necessary because the owner of the
dominant estate has joined it to another abutting on a public
highway and such public highway substantially meets the needs of
the dominant estate, the owner of the servient estate may demand
for the release of his estate from the servitude by returning what he
may have received by way of indemnity without interest.
15
  The interest on the indemnity shall, instead, be considered as
payment for the use of the easement.
 The same rule shall be applied in cases where a new road is
opened thereby giving access to the isolated estate.
 Note, however, that the extinguishment of the right of way in the
foregoing manner does not take place ipso jure.
 The owner of the servient estate must ask for the release of his
estate from the servitude upon the return of the indemnity he
received.
 The opening of an adequate outlet to a highway can extinguish only
legal or compulsory easements, not voluntary easements.
 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.
 A voluntary easement of right of way, like any other contract, could
be extinguished only by mutual agreement or by renunciation of the
owner of the dominant estate.
Easement of Party Wall
Presumption of existence of easement of party wall:
The law presumes the existence of an easement of party wall in the following
cases:
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 rural
communities; and
3. In fences, walls and live hedges dividing rural lands.
REMINDER: But this presumption will not, however, apply if:
(1) there is title to the contrary;
(2) there is an exterior sign to the contrary; and
(3) there is proof to the contrary.
Existence of exterior sign contrary to easement:
It is understood, however, that there exists an exterior sign contrary to the
easement of party wall in the following instances:
a. Whenever in the dividing wall of buildings, there is a window or
opening;
b. 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;
c. Whenever the entire wall is built within the boundaries of one of the
estates;
d. 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;
e. 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;
f. 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;
g. Whenever lands inclosed by fences or live hedges adjoin others
which are not inclosed.
REMINDERS:
(a) In all the foregoing 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 the
foregoing signs.
(b) With respect to ditches or drains opened between two estates, there is
also a presumption that they are common to both estates unless there is a
sign or title to 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.
Rights and Obligations of Each Owner of Party Wall:
16
Every part-owner of a party wall may use it in proportion to the right he may
have in the co-ownership even without the consent of the other owners so
long as he does not interfere with the common and respective uses by the
other co-owners.
Every part-owner of a party wall has the right to increase the height of the
party wall subject to the following conditions:
Conditions:
1. the same shall be done at his expense;
2. he shall pay for any damage which may be caused by his work,
even though such damage may be temporary; and
3. 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.
 The co-ownership is maintained up to the point where the original
wall extended.
 But with respect to the additional height, the same shall be
exclusively owned by the part-owner at whose instance the party
wall was raised.
 As a consequence, the expenses in maintaining the additional
height, as well as the increase in expenses which may be
necessary for the preservation of the party wall by reason of the
greater height, shall be borne by him.
 The other owners may, however, acquire a proportionate share in
the raised party wall by paying proportionately the value of the work
at the time of the acquisition and of the land used for its increased
thickness, in which case, all shall bear the expenses of maintaining
the additional height in proportion to their respective interest in it.
Repairs and Maintenance of Party Wall:
 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. In case where the
party wall supports a building, the owner of such building may
renounce his part ownership of the party wall if he will demolish the
building. 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 shall be borne by him.1226
Easement of Light and View
Concept:
 An easement of light (and view) with respect to the openings made
in one's own edifice does not consist precisely in the fact of opening
them or using them, inasmuch as they may be covered up at any
time by the owner of the abutting property.
 The easement really consists of in prohibiting or restraining the
adjacent owner from doing anything which may tend to cut-off or
interrupt the light; in short, it is limited to the obligation of not
impeding the light (ne luminibus officiatur).
 The latter coincides in its effects, from this point of view, with the
obligation of refraining from increasing the height of a building
(altius non tollendi), which, although it constitutes a special
easement, has for its object, at times, the prevention of any
interruption of the light enjoyed by the adjacent owner.
 Hence, an easement of light and view necessarily includes an
easement not to build higher (altius non tollendi).
 These two easements necessarily go together because an
easement of light and view requires that the owner of the servient
estate shall not build to a height that will obstruct the window.
 It will thus be observed that the owner of the servient estate subject
to such easement is under no -obligation whatsoever to allow
anything to be done on his tenement, nor to do anything there
himself, but is simply restrained from doing anything thereon which
may tend to cut off the light from the dominant estate, which he
would undoubtedly be entitled to do were it not for the existence of
the easement.
 Consequently, the easement of light (and view) in the case of
windows opened in one's own wall is of a negative character, and,
as such, cannot be acquired by prescription under Article 621 of the
NCC, except after the lapse of ten years counted from the date on
which the owner of the dominant estate may, by an instrument
acknowledged before a notary public, have prohibited the owner of
the servient estate from doing something which it would be lawful
for him to do were it not for the easement.
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Making an Opening in Party Wall:
 A part-owner of a party wall may use it even without the consent the
consent of the other owners so long as he does not interfere in the
common and respective uses by the other co-owners.
 No part-owner may, however, make an opening in a party wall
without the consent of the other co-owners.
 If the same is done without the consent of the other co-owners, the
latter may demand that what has been done be undone at the
expense of the co-owner who made such opening
 But if the same is done with the consent of the other co-owners, the
10-year period of prescription for the acquisition of an easement of
light and view shall commence to run from the time of the making of
such opening.
Observance of Certain Distances:
Required Distances:
 The law prohibits the making of windows, apertures, balconies, or
other similar projections which afford a direct view upon or towards
an adjoining land or tenement without leaving a distance of two
meters between the wall in which they are made and such
contiguous property.
 With respect to the side or oblique views upon or towards such
conterminous property, the law requires that the distance be 60
centimeters.
 Such distance 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.
When foregoing does not apply:
 The foregoing requirement does not apply, however, to buildings
separated by a public way or alley, which is not less than three
meters wide, unless there is a special regulation and local
ordinance which provides to the contrary.
Effect of Violation:
 When windows or balconies are opened in violation of the distance
requirement in Article 670 of NCC, the same may be ordered
closed because they constitute unlawful openings
 The mere making of such opening does not result in the running of
the 10-year prescriptive period for the acquisition of an easement of
light and view. Since the easement is a negative one, the 10-year
period begins to run only from the time of the formal prohibition
mentioned in Articles 621 and 668 of the NCC.
When foregoing distances are not observed:
 If a building is right on the boundary line or the distances required in
Article 670 are not observed, the owner of a wall adjoining a
tenement or piece of land belonging to another, which is not a party
wall, may not make an opening in the said wall except if the
following conditions are present:
(1) the opening must not be more than 30 centimeters square
and made at the height of the ceiling joist or immediately
under the ceiling, and with an iron grating imbedded in the
wall and with a wire screen; and
(2) it must be for the purpose of admitting light only and not for
the purpose of view.
Remedies of the owner of adjacent property:
 If the foregoing conditions are violated, the owner of the tenement
or property adjoining the wall may demand for its closure or he
may compel that the foregoing requirements be complied with.
 Even in the absence of any violation, the owner of the adjacent
property may close the opening should he acquire part ownership
of the wall where the opening has been made, if there be no
stipulation to the contrary.
 If the owner of the adjacent property is not entitled to demand for
the closure of the said opening because there is no violation of the
conditions outlined in the first paragraph of Article 669 and he does
not acquire part-ownership of the wall, he may, nonetheless,
obstruct the opening by constructing a building on his land or by
raising a wall thereon contiguous to that having such opening.
 This he can do because it is simply an exercise of his right of
ownership over his property. He may not, however, resort to this
remedy if the owner of the wall with the opening has already
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 acquired an easement of light pursuant to the manner outlined in
Articles 621 and 668 of the NCC.
Easement of Drainage of Buildings
Concept:
 The easement of drainage of buildings is the right to divert or empty
the rain waters from one's own roof or shed to the neighbor's estate
either drop by drop or through conduits.
Obligation of the owner of building:
 In cases where the owner of a building does not intend to collect
the rain waters falling on the roof or covering of his building, he has
the obligation to construct the roof or covering of his building in
such manner that the rain waters shall fall on his own land or on
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.
 And even if it should fall on his own land, he is also obliged to
collect the water in such a way that it will not cause damage to the
adjacent land or tenement.
Requisites for legal easement of drainage
1. The yard or court of a house must be surrounded by other houses
("the dominant estate") and it is not possible to give an outlet
through the house itself to the rain collected therefrom;
2. The outlet to the water must be at the point of the contiguous lands
or tenements ("the servient estate") where its egress may be
easiest;
3. The conduit for the drainage must be established in such manner
as to cause the least damage to the servient estate; and
4. Proper indemnity must be paid to the owner of the servient estate.
Intermediate Distances for Planting
Distances Required in Planting:
 Article 679 of the NCC prohibits the planting of trees near a
tenement or piece of land belonging to another person unless the
following distance requirement is observed:
1. The distance authorized by local ordinances or customs of the
place, if any ;or
2. In default of the foregoing, at a distance of at least two meters
from the dividing line of the estate in case of tail trees and at a
distance of at least 50 centimeters in case of shrubs or small
trees.
Effect of Violation:
 If the foregoing distance requirement is not followed, the owner of
the adjacent land has the right to demand for the uprooting of the
trees which were planted in violation of the rule.
 This remedy is also available to the owner of the adjacent land
even with respect to trees which have grown spontaneously at
distances shorter than that mentioned in the immediately preceding
paragraph.
Right to Cut Branches and Roots:
Rule as to branches:
 If the branches of any tree should extend over a neighboring estate,
tenement, garden or yard, the owner of the latter does not have the
right to take the matter into his own hand by cutting of the branches
extending on his property.
 Instead, he may demand that the protruding branches be cut off by
its owner. If his demand is not acted upon, he has to go to court to
seek authority for the cutting of the protruding branches.
Rule as to roots:
 But with respect to the roots of a neighboring tree which penetrated
into the land of another, the owner of the latter may himself cut off
the roots found within his property.
 The reason for the difference is that with respect to the roots, the
same belong to the owner of the land where it is found by reason of
incorporation.
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This right of the adjacent owner does not prescribe unless he has been, by a
formal act, prohibited by the owner of the tree from cutting off the roots of the
tree, in which case, the ten-year prescriptive period for the establishment of
a negative easement will commence to run.
Rule as to Fruits Which Naturally Fell:
 Fruits which are naturally falling upon adjacent land belong to the
owner of the said land.
 This rule has a practical purpose — which is to discourage the act
of allowing branches to protrude over another's land.
 This rule, however, does not apply to cases where the fruits
naturally fall on a public property in which case, the owner of the
tree retains ownership.
Legal Easement of Lateral and Subjacent Support
Concept:
 The right of lateral and subjacent support is the right to have land
supported by the adjoining land or the soil beneath.
 Each of two adjoining landowners is entitled to the support of the
other's land
 Support is lateral when the supported and the supporting lands are
divided by a vertical plane.
 Support is subjacent when the supported land is above and the
supporting land is beneath it.
 In addition, the law prohibits any stipulation or testamentary
provision allowing such kind of excavation.
 Any such stipulation or testamentary provision is expressly declared
to be void.
 Note that the easement of lateral and subjacent support is a
negative one — it is in the form of a prohibition on the part of a
landowner from making any excavation that will deprive the
adjacent land or building of sufficient lateral or subjacent support.
 If the right of lateral and subjacent support is violated, the adjoining
landowner is entitled to seek injunctive relief and to recover
damages.
 An annotation of the existence of the subjacent and lateral support
is no longer necessary.
 It exists whether or not it is annotated or registered in the registry of
property.
 A judicial recognition of the same already binds the property and
the owner of the same, including her successors-in-interest.
 Otherwise, every adjoining landowner would come to court or have
the easement of subjacent and lateral support registered for it to be
recognized and respected.

Easement of lateral and subjacent support:

Concept:
 The right of lateral support ordinarily exists only with respect to the
soil in its natural condition, but our Civil Code expressly includes
buildings in the protection of this easement. In the words of the
Code Commission, this kind of easement or servitude is so
essential to the stability of buildings.
 With the foregoing purpose in mind, the law prohibits any
excavation upon one's land if the same will deprive any adjacent
land or building of sufficient lateral or subjacent support.

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 [Title VII — Easement or Servitudes]  It is only the owner of the tenement or piece of land who may
constitute an easement over his property.
[Chapter 3: Voluntary Easements]  If it is the usufructuary who will impose the same servitude upon the
(Arts. 688-693, NCC) property held in usufruct, it is not, in reality, an easement or
servitude because it will not bind the owner or the property itself.
 In short, the right created is not a real right but a mere personal
right which is binding against the usufructuary only. Hence, upon
Voluntary Easements the termination of the usufruct the servitude likewise ceases.
Concept: Establishment of Easement Over Co-owned Property:
Compulsory Voluntary  If the tenement or piece of land is in a state of co-ownership, the
if it can be demanded by the unanimous consent of all co-owners is required in order to
claimant as a matter of right upon If the claimant is not entitled to
constitute a voluntary easement upon the same.
payment of the proper indemnity. demand for an easement as a
matter of right because the  Consent by the co-owners may be given by them either
requisites for legal easement are simultaneously or successively.
not present, the easement may  In the latter case, the consent given by one of the co-owners
only be constituted upon the will of separately from the others shall already bind him and his
the owner of the servient estate, in successors.
which case, the easement is  In other words, he cannot later on change his mind and withdraw
classified as voluntary. his consent, if the other co-owners decide to subsequently give
their consent.
 Only the owner of the property may constitute an easement over a
tenement because the creation of a servitude is a disposition of a
part of the right of ownership and only an owner can do that. Abandonment of property
 A voluntary easement of right of way is like any other contract.
 If, upon the establishment of a voluntary easement, the owner of
 As such, it is generally effective between the parties, their heirs and
the servient estate bound himself to bear the cost of the work
assigns, except in case where the rights and obligations arising
required for the use and preservation of the easement he may free
from the contract are not transmissible by their nature, or by
himself from this obligation by renouncing his property to the owner
stipulation or by provision of law.
of the dominant estate.
 The owner of the servient estate need not renounce his ownership
over the entire property if the servitude affects only a part thereof in
Establishment of voluntary easement. on property held in usufruct: which case, he may abandon only that part which is burdened with
the servitude.
 Since easement consists of a limited use and enjoyment of the
 Needless to say, if the servitude affects the entire servient
thing without possession, the establishment of a voluntary
tenement, the abandonment must be total.
easement on a tenement or piece of land is not inconsistent with
 Must the abandonment be reduced in some form? Since the
the existence of a usufruct over the same property.
abandonment contemplated in Article 693 of the New Civil Code
 Hence, the owner of such tenement or piece of land may impose
produces the transmission of ownership over a real property, the
any servitude thereon and he may do so even without the consent
of the usufructuary.

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 law (Art. 1358, par. 1 of the NCC) requires that the same must
appear in a public document.
 However, the provision of Article 1358 of the NCC on the necessity
of a public document is only for convenience, not for validity or
enforceability.

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