EASEMENT
aliena).
An encumbrance imposed upon an immovable by nature for the
benefit of another immovable belonging to a different owner.
[NCC. 613]
A real right which burdens a thing with a prestation of
determinate servitudes for the exclusive enjoyment of one who
is not an owner of a tenement.
A real right by virtue of which the owner has to abstain from
doing or allow somebody else to do something to his property
for the benefit of another.
Dominant Estate – the immovable in favor of which the
easement is established.
Servient Estate – the immovable which is subject to the
easement
CHARACTERISTICS
ESSENTIAL FEATURES:
• It is a real right – it gives an action in rem or real action
against any possessor of the servient estate
Owner of the dominant estate can file a real
action for enforcement of right to an easement
Action in rem: an action against the thing itself,
instead of against the person.
• It is a right enjoyed over another’s property (jus in re
When the dominant and the servient estates have
the same owner, the easement is extinguished.
Separate ownership is a prerequisite to an
easement.
• It is a right constituted over an immovable by nature
(land and buildings), not over movable properties or even
immovable by incorporation, by destination or by
analogy. [NCC 613]
Immovable: used in its common and not in the
legal sense, meaning only property immovable
by nature can have easements.
• It limits the servient owner’s right of ownership for the
benefit of the dominant estate.
Right of limited use but no right to possess the
servient estate.
There exists a limitation on ownership: the
dominant owner is allowed to enjoy or use part of
the servient estate, or imposes on the owner a
restriction as to his enjoyment of his own
property.
Being an abnormal limitation of ownership, it
cannot be presumed.
• It creates a relation between tenements:
 There is no transfer of ownership, but a
relationship is created, depending on the type of
easement.
General Rule: It may consist in the owner of the
dominant estate demanding that the owner of the
servient estate refrain from doing something
(servitus in non faciendo) or that the latter permit
that something be done over the servient property
(servitus in patendo), but not in the right to
demand that the owner of the servient do
something (servitus in faciendo) except if such
act is an accessory obligation to a praedial
servitude (obligation propter rem)
Servient owner merely allows something to be
done to his estate.
Exception: Praedial servitudes
Right to place beams in an adjoining wall to
support a structure.
Right to use another’s wall to support a building.
• It is inherent or inseparable from estate to which they
actively or passively belong [NCC 617]
Easements are merely accessory to the
tenements, and a “quality thereof.” They cannot
exist without tenements.
CLASSIFICATION
Easements exist even if they are not expressly
stated or annotated as an encumbrance on the
titles.
• It is intransmissible – it cannot be alienated separately
from the tenement affected or benefited
Any alienation of the property covered carries
with it the servitudes affecting said property. But
this affects only the portion of the tenement with
the easement, meaning that the portions
unaffected can be alienated without the servitude.
• It is indivisible [NCC 618]
If the servient estate is divided between two or
more persons, the easement is not modified, and
each of them must bear it on the part that
corresponds to him.
If the dominant estate is divided between two or
more persons, each of them may use the easement
in its entirety, without changing the place of its
use, or making it more burdensome in any other
way.
• It has permanence – once it attaches, whether used or not,
it continues and may be used anytime
Perpetual: exists as long as property exists,
unless it is extinguished.
AS TO RECIPIENT OF BENEFITS i. Apparent: Made known and continually kept in view by
external signs that reveal the use and enjoyment of the
i. Real or Praedial: exists for the benefit of a particular same.
tenement. ii. Non-apparent: No external indication of their existence.
ii. Personal: exists for the benefit of persons without a
dominant tenement e.g. usus habitatio (right to reside in
a house) and operae servorum (right to the labor of
slaves) in Roman law. BY THE OBJECT OR OBLIGATION IMPOSED [NCC
616]
AS TO CAUSE OR ORIGIN
i. Positive: Imposes upon the owner of the servient estate
i. Legal: created by law, whether for public use or for the the obligation of allowing something to be done, or
interest of private persons. extraordinarily or doing it himself.
ii. Negative: Prohibits the owner of the servient estate from
Once requisites are satisfied, the owner of the doing something that he could lawfully do if the
dominant estate may ask the Court to declare that easement did not exist.
an easement is created.
C. GENERAL RULES
Example: Natural drainage of waters, Abutment
of land, Aqueduct, etc. Nulli res sua servi: No one can have a servitude over one’s own
property.
ii. Voluntary: Created by the will of the owners of the estate
through contract, last will or donation. ii. Servitus in faciendo consistere nequit: A servitude cannot
consist in doing.
AS TO ITS EXERCISE [NCC 615]
Although some easements seem to impose a positive prestation
i. Continuous: Use is or may be incessant, without the upon the owner of the servient estate, in reality, the primary
intervention of any act of man obligation is still negative.
ii. Discontinuous: Used at intervals, and dependent upon
the acts of man. Illustration: Under Article 680: the owner of a tree whose
branches extend over to a neighboring property is required to cut
AS INDICATION OF ITS EXISTENCE [NCC 615] off the extended branches, but the real essence of the easement
is the obligation NOT TO ALLOW the branches of the tree to either of them, or the apparent sign should be removed before
extend beyond the land. the execution of the deed. This provision shall also apply in case
of the division of a thing owned in common by two or more
iii. Servitus servitutes esse non potest: There can be no servitude persons. [NCC. 624]
over another servitude.
DETERMINES HOW TO COMPUTE THE
iv. A servitude must be exercised civiliter – in a way least PRESCRIPTIVE PERIOD [NCC 621]
burdensome to the owner of the servient estate.
In positive easements, from the day on which the owner of the
v. A servitude must have a perpetual cause. dominant estate, or the person who may have made use of the
easement, commenced to exercise it upon the servient estate.
D. RELEVANCE OF CLASSIFICATIONS
In negative easements, from the day on which the owner of the
DETERMINES WHAT EASEMENTS CAN BE dominant estate forbade, by an instrument acknowledged before
ACQUIRED BY PRESCRIPTION a notary public, the owner of the servient estate from executing
an act which would be lawful without the easement.
• Continuous and apparent easements may be acquired by
prescription of 10 years [NCC. 620] DETERMINES HOW EASEMENT IS LOST BY
PRESCRIPTION [NCC 631 (2)]
DETERMINES WHAT EASEMENTS CAN BE
ACQUIRED BY TITLE By nonuser for 10 years:

Continuous nonapparent easements, and discontinuous ones, With respect to discontinuous easements, this period shall be
whether apparent or not, may be acquired only by virtue of a computed from the day on which they ceased to be used.
title. [NCC. 622]
With respect to continuous easements, from the day on which an
The existence of an apparent sign of easement between two act contrary to the same took place.
estates, established or maintained by the owner of both, shall be
considered, as a title in order that the easement may continue
actively and passively.
CREATION
Unless: At the time the ownership of the two estates is divided,
the contrary should be provided in the title of conveyance of
BY TITLE OR BY SOMETHING EQUIVALENT TO A 6. The existence of an apparent sign is considered as title.
TITLE
BY LAW (LEGAL EASEMENTS)
1. Continuous and apparent easements may be acquired by
virtue of a title. [NCC 620] • Easements imposed by law have for their object either
public use or the interest of private persons. [NCC 634]
2. Continuous non-apparent easements, and discontinuous • These easements may be modified by agreement of the
ones, whether apparent or not, are acquired only by interested parties, whenever the law does not prohibit it
virtue of a title. [NCC 622] or no injury is suffered by a third person. [NCC 636]

3. The absence of a document or proof showing the origin BY WILL OF THE OWNERS (VOLUNTARY
of an easement which cannot be acquired by prescription EASEMENTS)
may be cured by a deed of recognition by the owner of
the servient estate or by a final judgment. [NCC 623] • Every owner of a tenement or a piece of land may
establish the easements that he may deem suitable and
4. The existence of an apparent sign of easement between best provided he does not contravene the laws, public
two estates, established or maintained by the owner of policy, or public order. [NCC 688]
both, shall be considered as a title in order that the
easement may continue actively and passively. E.4. BY PRESCRIPTION

Continuous and apparent easements may be acquired by

5. If the easement has been acquired but no proof of prescription of 10 years. [NCC 620]
existence of easement available, and the easement is one
that cannot be acquired by prescription, the defect may Requisites:
be cured by:
• The easement must be continuous and apparent;
• Deed of recognition by owner of servient estate: • The easement must have been used for 10 years; and
By an affidavit or a formal deed acknowledging • There is no need for good faith or just title.
the servitude; or
• By final judgment: Owner of the dominant estate LEGAL EASEMENTS
must file a case in Court to have the easement
declared by proving its existence through other LAW EASEMENTS GOVERNING LEGAL
evidence.
 i.For public easements
ii.For private legal easements.
VOLUNTARY EASEMENTS
• Every owner of a tenement or piece of land may establish
thereon the easements which he may deem suitable, and
in the manner and form which he may deem best. [NCC
688]
OBLIGATIONS OF DOMINANT ESTATE OWNER
• The owner of a thing, the usufruct of which belongs to
another, may impose, without the consent of the
usufructuary, any servitudes which will not injure the
right of usufruct. [NCC 689]
• Whenever the naked ownership belongs to one person
and the beneficial ownership to another, no perpetual
voluntary easement may be established thereon without
the consent of both owners.[NCC690]
• Consent of all co-owners is required to impose an
easement on an undivided tenement [NCC691]
RIGHTS OF DOMINANT ESTATE OWNER
1. To use the easement and exercise all rights necessary for
it [NCC 625, 626]
2. The owner of the dominant estate is granted the right to
use the principal easement, and all accessory servitudes.
3. To make, at his own expense, on the servient estate any
works necessary for the use and preservation of the
servitude, but without altering it or rendering it more
burdensome.
4. In a right of way, to ask for change in width of easement
sufficient for needs [NCC 651]
5. To renounce totally the easement, if he desires to be
exempt from contributing to the expenses.
1. To use the easement for the benefit of immovable and in
the manner originally established [NCC 626]
• If established for a particular purpose, the easement
cannot be used for a different one. However, if
established in a general way, without specific purpose,
the easement can be used for all the needs of the
dominant estate.
2. To notify the owner of the servient estate before making
repairs and to make repairs in a manner least
inconvenient to the servient estate [NCC 627(2)]
3. Not to alter the easement or render it more burdensome
The owner of the dominant estate may make repairs at
his expense, but he cannot alter the easement or make it
more burdensome.[NCC 627]
 4. To contribute to expenses of works necessary for use and
preservation of servitude, if there are several dominant
estates, unless he renounces his interest [NCC 628]
The contribution is in proportion to the benefits which
each may derive from the work.
Anyone who does not wish to contribute may exempt
himself by renouncing the easement for the benefit of the
others.
If the owner of the servient estate should make use of the
easement in any manner whatsoever, he shall also be
obliged to contribute to the expenses in the proportion
stated, saving an agreement to the contrary.
5. To do at his expense all necessary works for the use and
preservation of the easement [NCC 627]
The necessity of the works determines extent of such
works.
RIGHTS OF THE SERVIENT ESTATE OWNER
1. To retain ownership and use of his property
The owner of the servient estate retains the ownership of
the portion on which the easement is established, and
may use the same in such a manner as not to affect the
exercise of the easement. [NCC 630]
The servient owner must respect the use of the servitude,
but retains ownership and use of the same, in a manner
not affecting the easement.
2. To change the place and manner of the use of the
easement [NCC 629]
General rule: The owner of the servient estate cannot
impair the use of the servitude.
Exceptions: By reason of either:
(a) The place/manner originally assigned, the use of such
easement has become VERY INCONVENIENT to the
owner;
(b) The easement should prevent him from making any
important works, repairs or improvements thereon;
The change must be done at his expense;
He offers another place or manner equally convenient;
and
The change is done in such a way that no injury is caused
to the dominant owner or to those who may have a right
to use the easement.
3. To use the easement
May use the easement but must also contribute
proportionately to the expenses.
OBLIGATIONS OF SERVIENT ESTATE OWNER
1. Not to impair the use of the easement [NCC 629(1)]
2. To contribute proportionately to expenses if he uses the
easement [NCC 628(2)]
3. To pay for the expenses incurred for the change of
location or form of the easement
EXTINGUISHMENT OF EASEMENTS
1. By a non-user for ten years;
2. When either or both of the estates fall into such condition
that the easement cannot be used;
3. By the expiration of the term or the fulfillment of the
condition, if the easement is temporary or conditional;
4. By the renunciation of the owner of the dominant estate;
or
5. By the redemption agreed upon between the owners of
the dominant and servient estates.
1. BY MERGER IN THE SAME PERSON OF THE
OWNERSHIP OF THE DOMINANT AND
SERVIENT ESTATES;
• Must be absolute, perfect and definite, and not
merely temporary.
• Absolute: Ownership of the property must be
absolute, thus not applicable to lease, usufruct,
etc.
• Perfect: Merger must not be subject to a
condition.
• If the merger is temporary, there is at most a
suspension of the easement, but no
extinguishment.
2. BY A NON-USER FOR 10 YEARS
• Owner of dominant estate does not exercise right
over easement.
• This is inaction, and not outright renunciation.
• This is due to the voluntary abstention by the
dominant owner, and not due to a fortuitous
event.
• Computation of the period:
• Discontinuous easements: counted from the day
they ceased to be used.
• Continuous easements: counted from the day an
act adverse to the exercise of the easement took
place.
3. BY IMPOSSIBILITY OF USE
• Impossibility referred to must render the entire
easement unusable for all time.
• Impossibility of using the easement due to the
condition of the tenements (e.g. flooding) only
suspends the servitude until it can be used again.
• Except: If the suspension exceeds 10 years, the
easement is deemed extinguished by non-user.
4. EXPIRATION OF THE TERM OR
FULFILLMENT OF RESOLUTORY CONDITION
Applicable only to voluntary easements.
 5. RENUNCIATION OF THE OWNER OF THE
DOMINANT ESTATE
Must be specific, clear, express (distinguished from
KINDS OF PRIVATE LEGAL EASEMENTS
I. NATURAL DRAINAGE
• 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 do any works that
will impede this easement.
• The owner of the higher estate cannot do any works that
will increase the burden.
II. RIPARIAN BANKS
• The banks of rivers and streams are subject throughout
their entire length and within a zone of 3 meters for urban
areas, 20 meters for agricultural areas and 40 meters for
forest areas (PD 1067, Water Code as amended by PD
1067) along their margins, to the easement of public use
in the general interest of navigation, floatage, fishing,
recreation and salvage.
• Estates adjoining the banks of navigable or floatable
rivers are subject to the easement of towpath for the
exclusive service of river navigation and floatage.
• If it be necessary to occupy lands of private ownership,
the proper indemnity shall first be paid.
III. DAM
• Whenever for the diversion of water 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.
IV. DRAWING WATER AND WATERING ANIMALS
• Compulsory easements for drawing water or for
watering animals can be imposed only for reasons of
public use in favor of a town or village, after payment of
the proper indemnity.
• Easements for drawing water and for watering animals
carry with them the obligation of the owners of the
servient estates to allow passage to persons and animals
to the place where such easements are to be used, and the
indemnity shall include this service.
• The width of the easement must not exceed 10 meters.
V. AQUEDUCT
• 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.
• Person desiring to make use of this right is obliged to:
 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; and
3. To indemnify the owner of the servient estate in
the manner determined by the laws and
regulations
VI. STOP LOCK OR SLUICE GATE
• The construction of a stop lock or sluice gate in the bed
of the stream from which the water is to be taken, for the
purpose of improving an estate.
• Such person 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.
VII. RIGHT OF WAY
Who may demand:
1. The owner of the dominant estate; or
2. Any person with the real right to cultivate or use the
dominant estate e.g. a usufructuary, a de jure possessor.
Requisites:
1. The dominant estate is surrounded by other immovables
owned by other persons;
2. There must absolutely be no access i.e. means of
entrance or exit/egress to a public highway;
3. Even if there is access, it is difficult or dangerous to use,
or grossly insufficient;
4. Mere inconvenience in the use of an outlet does not
render the easement a necessity;
5. An adequate outlet is one that is sufficient for the
purpose and needs of the dominant owner, and can be
established at a reasonable expense;
6. Does not necessarily have to be by land – an outlet
through a navigable river or a lake or the sea if suitable
to the needs of the tenement is sufficient;
7. The isolation of the immovable is NOT due to the
dominant owner’s own acts e.g. if he constructs building
to others obstructing the old way; and
8. There is payment of indemnity;
Rules for establishing Right of Way:
1. Must be established at the point least prejudicial to the
servient estate. [NCC 650]
2. Insofar as consistent with the first rule, where the
distance from the dominant estate to a public highway is
shortest.
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. [NCC651]
Extinguishment as Legal Easement of Right of Way [NCC
655]
1. The owner has joined the dominant estate to another
abutting the public road.
 2. A new road is opened giving access to the isolated estate.
3. Extinguishment is not automatic. The owner of the
servient estate must ask for such extinguishment.
4. Indemnity paid to the servient owner must be returned
without interest. Interest on account of indemnity is
deemed to be rent for use of easement.
Special Rights of Way
1. Right of way to carry materials for the construction,
repair, improvement, alteration or beautification of a
building through the estate of another.
2. Right of way to raise on another’s land scaffolding or
other objects necessary for the work.
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. [NCC656]
3. Right of way for the passage of livestock known as
animal path, animal trail, watering places, resting places,
animal folds. [NCC 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
VIII. PARTY WALL
• Refers to all those mass of rights and obligations
emanating from the existence and common enjoyment of
wall, fence, enclosures or hedges, by the owners of
adjacent buildings and estates separated by such objects.
• When Existence of Easement of Party Wall is Presumed
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, or towns, or in rural communities.
3. In fences, walls and live hedges dividing rural
lands.
RIGHT OF OWNERS OF A PARTY WALL
A. Party-owners may use the wall in proportion to their
respective interest provided that:
1. The right to use by the other party is not
interfered with
 2. The Consent by the other owner is needed if a
party wants to open a window;
3. the condition of the building is determined by
experts.
B. The increase the height of the wall
1. at his own expense
2. he shall indemnify the other party for any
damages
C. To acquire a half-interest in any increase in height or
thickness of the wall, paying a proportionate share in the
cost of the work and the value of the land covered.
D. To renounce his part ownership of a party wall if he
desires to demolish his building supported by the wall
Obligations Of Owners Of A Party
(1) To contribute proportionately to the repair and
maintenance of the party wall unless he
renounces his part-ownership
(2) If he raises his party wall, he must:
i. Bear the cost of construction
ii. Bear the cost of maintenance
iii. Give additional land if necessary to
thicken the wall
iv. Pay damages, if necessary
v. Bear the increased expenses for
preservation
IX. EASEMENT OF LIGHT AND VIEW
Definition
Easement of light (jus luminum) is the right to admit light from
the neighboring estate by virtue of the opening of a window or
the making of certain openings.
Easement of view (jus prospectus) is the right to make openings
or windows, to enjoy the view through the estate of another and
the power to prevent all constructions or works which would
obstruct such view or make the same difficult.
Necessarily includes the easement of light. It is possible to have
light only without a view.
Nature
1. Positive: Opening a window through a party wall
When the opening is made through the wall of another
When a part owner of a party wall opens a window
therein, such act implies the exercise of the right of
ownership by the use of the entire thickness of the wall.
The easement is created only after the lapse of the
prescriptive period.
2. Negative: Formal prohibition upon the owner of the
adjoining land or tenement. Formal means that the
prohibition has been notarized [Cortes v Yu-Tibo (1903)]
When a person opens a window on his own building, he
is exercising his right of ownership on his property,
which does not establish an easement.
 Coexistent is the right of the owner of the adjacent
property to build or plant on his own land, even if such
structures or planting cover the window.
If the adjacent owner does not build structures to obstruct
the window, such is considered mere tolerance and NOT
a waiver of the right to build.
An easement is created only when the owner opens up a
window and subsequently prohibits or restrains the
adjacent owner from doing anything that may tend to cut
off or interrupt the light and the 10-year prescriptive
period has lapsed by a notarial prohibition.
Rules And Restrictions On Openings And Structures
i. Openings for light
When the opening is 2 meters or more away from another’s
tenement, i.e. the boundary line:
• An owner may build any kind of opening without
restriction;
• When the wall is contiguous (less than 2 meters) to
another’s tenement;
• Openings are made at the height of the ceiling
joists (horizontal beams) or immediately under
the ceiling;
• Size: 30 cm square;
• With iron grating imbedded in the wall;
• With a wire screen.
ii. Openings for view
a. The following structures cannot be built without
following the prescribed distances:
Window, apertures, balconies and other projections with
a direct view upon or towards an adjoining land must
have a distance of 2 meters between the wall and the
contiguous property.
b. For structures with a side or oblique view (at an angle
from the boundary line), there should be a distance of 60
centimeters.
Measured from:
i. The outer line of the wall if the openings do not
project.
ii. The outer line of the openings if they project.
iii. The dividing line between the two properties in
cases of oblique views.
Effect If Distances Are Not Complied With
i. Easement is not acquired by prescription
ii. Windows are considered unlawful openings and
may be ordered by the Court to be closed.
iii. Even if the adjoining owner does not object to the
construction of such structures at first, he cannot
be held to be in estoppel, unless the 10-year
period of acquisitive prescription has passed.
X. DRAINAGE OF BUILDINGS
The owner of a building is obliged to construct its roof or
covering in such manner that the rain water shall fall on his own
land or on a street or public place, and NOT on the land of his
neighbor, even though the adjacent land may belong to two or
more persons, one of whom is the owner of the roof.
Even if it should fall on his own land, the owner shall be obliged
to collect the water in such a way as not to cause damage to the
adjacent land or tenement.
The true easement is Article 675 where the adjacent estate has
the obligation of receiving the rain water falling from a
neighboring roof and giving it an outlet on his own lot so as not
to cause damage to the dominant estate.
Easement of drainage if buildings [NCC 676] – to give outlet to
rain water collected
XI. INTERMEDIATE DISTANCES
Prohibiting the contraction and plantings near fortified places or
fortresses without complying with special laws, ordinances
and regulations relative hereto. NCC 677, in effect, establishes
an easement in favor of the State. The general prohibition is
dictated by the demands of national security.
The following must comply with the regulations or customs of
the place:
1. Construction of aqueduct, well, sewer, etc. [NCC 678]
2. Constructions, which, by reason of their nature or
products, are dangerous or noxious.
Planting of trees (NCC 679)
• No trees shall be planted near a tenement or piece of land
belonging to another except at the distance authorized by
the ordinances or customs of the place.
In the absence of regulations:
• At least 2 meters from the dividing line of the estates if
tall trees are planted.
• At least 50 centimeters if shrubs or small trees are
planted.
NUISANCE
NCC 694. A nuisance is any act, omission, establishment,
condition of property, or anything else which:
1. Injures or endangers the health or safety of others; or
2. Annoys or offends the senses; or
3. Shocks, defies or disregards decency or morality; or
4. Obstructs or interferes with free passage of any public
highway or street, or any body of water; or
5. Hinders or impairs the use of property.
ACCORDING TO NATURE
i. Nuisance per se or at law
• An act, occupation or structure which is a nuisance at all
times and under any circumstances, regardless of
location or surroundings.
ii. Nuisance per accidens or in fact One that becomes a nuisance
by reason of circumstances and surroundings.
• It is not a nuisance by its nature but it may become so by
reason of the locality, surrounding, or the manner in
which it is conducted, managed, etc.
ACCORDING TO SCOPE OF INJURIOUS EFFECTS
i. Public
The doing of or the failure to do something that
injuriously affects the safety, health or morals of the
public.
ii. Private
One which violates only private rights and produces
damages to but one or a few specific persons.
DOCTRINE OF ATTRACTIVE NUISANCE
One who maintains on his premises dangerous instrumentalities
or appliances of a character likely to attract children in play, and
who fails to exercise ordinary care to prevent children from
playing therewith or resorting thereto, is liable to a child of
tender years who is injured thereby, even if the child is
technically a trespasser in the premises.
A swimming pool or water tank is not an attractive nuisance, for
while it is attractive, it cannot be a nuisance, being merely an
imitation of the work of nature. [Hidalgo Enterprises v.
Balandan (1952)]
LIABILITY IN CASE OF NUISANCE
WHO ARE LIABLE
Every successive owner or possessor of property who fails or
refuses to abate a nuisance in that property started by a former
owner or possessor is liable therefor in the same manner as the
one who created it. [NCC 696]
LIABILITY OF TRANSFEREES
The grantee of land upon which there exists a nuisance created
by his predecessors in title is not responsible therefore merely
because he becomes the owner of the premises, or merely
because he permits it to remain.
He shall be liable if he knowingly continues the nuisance.
Generally, he is not liable for continuing it in its original form,
unless he has been notified of its existence and requested to
remove it, or has actual knowledge that it is a nuisance and
injurious to the rights of others.
If the transferee cannot physically abate the nuisance without
legal action against another person, then he shall not be liable
for such nuisance.
NATURE OF LIABILITY
All persons who participate in the creation or maintenance of a
nuisance are jointly and severally liable for the injury done.
If two or more persons who create or maintain the nuisance act
entirely independent of one another, and without any community
of interest, concert of action, or common design, each is liable
only so far as his acts contribute to the injury.

For solidary liability, there must be some joint or concurrent act

or community of action or duty, or the several wrongful acts
done at several times must have concurred in their effects as one
single act to produce the injury complained of.

RIGHT TO RECOVER DAMAGES

The abatement of a nuisance does not preclude the right of any

person injured to recover damages for its past existence. [NCC
697]

No Prescription -The action to abate a public or private

nuisance is NOT extinguished by prescription. [NCC 1143(2)]

PUBLIC NUISANCE

NCC 695. Nuisance is either public or private. A public nuisance

affects a community or neighborhood or any considerable
number of persons, although the extent of the annoyance, danger
or damage upon individuals may be unequal. A private nuisance
is one that is not included in the foregoing definition. \

PRIVATE NUISANCE

Private Nuisance: That which is not included in the definition of

a public nuisance [NCC 695]