If during the construction of my house, I request my
neighbor to keep in the meantime a painting (with frame)
which I own and my friend attaches said painting on his own
wall, should the painting be regarded as real or personal
property? ANS.: Personal, in view of the lack of intent to
attach permanently in my neighbor’s house. Note the word
“permanently” in paragraph No. 4.
1) When is machinery attached to land or a tenement
considered immovable? [ANS.: Par. 5, Art. 415].
2) Give the exception. [ANS.: When placed on the land or
tenement by a tenant.] (Davao Sawmill v. Castillo, supra).
3) Give the exception to the exception. [ANS.: when the
tenant had promised to leave the machinery on the tenement
at the end of the lease, or when he acted only as agent of the
owner of the land.]. (Valdez v. Central, supra).
Is the steamship President Cleveland personal or real
property? ANS.: It can be moved from place to place, hence,
it is personal property, although it PARTAKES THE
NATURE of real property in view of its importance in the
world of commerce. To whom does the offspring of animals
belong when the male and female belong to different
owners?
ANS.: This point is not covered either by the old or the new
Civil Code. However, under the Partidas, the owner of the
female was considered also the owner of the young, unless
there is a contrary custom or speculation. (2 Navarro
Amandi 276). Moreover, in one case it was held that “the
legal presumption, in the absence of proof to the contrary, is
that the calf, as well as its mother belong to the owner of the
latter, by the right of accretion.” Commentators opine that
the rule of the Partidas may be applied under the Codes
because such rule merely continues the ownership which the
owner of the female possessed, when the young was still in
the womb of the mother. This is also in accord with the
maxim “pratus sequitor ventrem” (the offspring follows the
dam — or mother). (See 3 Sanchez Roman 139). This
maxim is based on two good reasons: (a) First, oftentimes, it
is not known who the male is. (b) Second, during the
pregnancy of the female, its owner is greatly burdened by
the consequential expenses and virtual uselessness of the
animal, and it is only fair that when the young is born, the
owner should gain, or at least recover his loss.
X purchased subdivision Lot 6. Instead of building on Lot 6,
X in good faith built an apartment house worth P8 million
on Lot 7, which is valued at P8.5 million belonging to Z and
without Z’s knowledge.
(a) Who has the preferential right of consolidating
ownership on both land and building?
(b) May Z compel X to remove the apartment house?
(c) May Z compel X to buy the land?
(d) If X agrees to pay Z for the latter’s land but fails to
comply, may Z demand removal of the apartment?
(e) Before a settlement is reached between X and Z, may Z
demand rental for his land? Explain your answers.
Answers:
(a) Z has the preferential right, for he has the option referred
to in Art. 448.
(b) No, Z cannot compel the removal or demolition, for such
alternative is not granted him under the Article.
(c) Yes, Z can compel X to buy the land, since its value is
not considerably more than the value of the apartment, the
difference being only P.5 million.
Page 1 of 5
(d) This time the answer is YES, according to the case of
Ignacio v. Hilario, 76 Phil. 605. Since the landowner Z has
chosen to sell the land, the builder must pay. If he cannot
pay, he should not be allowed to use the land to the owner’s
detriment. Hence, he must remove the building.
(e) Before settlement is reached between X and Z, Z may
not legally demand rental for his land, for after all X is a
builder in good faith, and is entitled to retain in the
meantime. This right of retention would be nugatory if he
were to be made to pay.
[NOTE: The answers given hereinabove are based on the
premise that the builder is in GOOD FAITH, as stated in the
problem. Be it remembered, however, that if the problem
had dealt with lots covered by Torrens Titles, X who
erroneously builds on the adjoining lot in the subdivision
should be considered a builder in BAD FAITH, there being
presumptive knowledge of the Torrens Title, the area, and
the extent of the boundaries.
A constructed a house on land belonging to B in the belief
that the land was his own. Upon discovering the fact, B
demanded that A should pay him the value of the land, but
A failed to do so.
(a) Did A’s failure to pay automatically make B the owner
of the house by right of accession? Reasons.
(b) What remedies are available to the parties? Discuss.
(a) A’s failure did NOT automatically make B the owner of
the house by the right of accession. REASON: No such right
is given by Art. 448 of the Civil Code. Said Article merely
gives the landowner an option to appropriate for himself the
house upon payment of the proper indemnity, or to compel
the builder to buy the land upon which the house has been
built, unless the value of the land be considerably more than
the value of the house (in which case, rent should be paid).
Our Supreme Court has held that there is nothing in the
language of the law (Arts. 448 and 548), which would
justify the conclusion that upon failure of the builder to pay
the value of the land when such is demanded by the
landowner, the latter automatically becomes the owner of
the improvements. Indeed, ownership over the accessory
passes only after payment of the indemnity.
(b) The parties have the following remedies:
1) They may leave things as they are and assume the relation
of lessor and lessee. The rent may be fixed Art. 448 by the
court in case of disagreement.
2) The landowner may have the house removed. This right
of demolition exists because he has chosen to sell his land,
and the builder has failed to pay.
3) The landowner may consider the price of the land as an
ordinary money debt of the builder. Therefore, he may
enforce payment thru an ordinary action for the recovery of
a money debt. The execution of the judgment may be done
by levying on the land and the house both of which may be
sold at a public auction. The landowner will then keep for
himself the proceeds equivalent to the value of the land; the
rest will be turned over to the builder, who cannot complain
of any deficiency.
Subsequent to the original registration under the Torrens
System of a parcel of land bordering a river, its area was
increased by accession. Having been acquired subsequent to
the registration proceedings, the additional area was NOT
INCLUDED in the technical description appearing on the
certificate of title. May such additional area be acquired by
third persons through adverse possession? Why?
ANS.: Yes, for while the additional area automatically
became property of the owner of the original parcel (by
accession), still, said area did not automatically become
registered land; hence, the same may be acquired by
prescription.
ALLUVIUM
(1) the deposit of the soil here is gradual.
(2) soil cannot be identified.
(3) belongs to owner of property to which it is attached.
AVULSION
(1) sudden or abrupt process may be seen.
(2) identifiable or verifiable.
(3) belongs to owner from whose property it was detached.
[NOTE: In the absence of evidence that the change in the
course of the river was sudden or that it occurred through
alluvium, the presumption is that the change was gradual
and was caused by alluvium and erosion.
(a) A and B each own a parcel of land on opposite sides of a
river. The river changed its course and passed thru D’s land
not adjoining either A’s or B’s land. As a result of this
change of course, D lost 10 hectares of land. Assuming that
the area of the abandoned river bed between the lands of A
and B is also 10 hectares, who is entitled to the accession,
and why?
ANS.: D, in view of his loss. (Art. 461).
(b) The Director of Lands sold to A 24 hectares of public
land at P200 per square meter. The land was adjoining a
river, which, after the sale changed its course and left its bed
dry, the area of which is two hectares. The purchaser A
claimed and occupied this portion, alleging the right of
accretion. The Director of Lands claimed that the sale
covered only 24 hectares, hence, A has no right to the two
hectares.
ANS.: Under the old Law, A would be correct but under the
new Civil Code a distinction has to be made. If the river in
its new course occupies private land, then the owner of the
private land becomes the owner of the abandoned river bed
without prejudice to A’s right to buy
it from him. If the new river bed is on land of the public
domain, the abandoned river bed is of public domain, and is
thus, in a sense, owned by the government.
(c) A owns a parcel of land adjoining the bank of the
Pampanga River. The land on the opposite bank is owned by
B. The river suddenly changed its natural course, and the
new river bed passed through more than one-half of the land
of B.
The ownership of the abandoned river bed is claimed by:
1) A as owner of the adjacent land;
2) B who lost more than one-half of his land to the new river
bed; and
3) The government on the ground that the abandoned river
bed is part of the public domain.
Determine the rights, if any, of each of the claimants.
Explain fully, giving reasons.
ANS.: It is clear under Art. 461 that B ipso facto owns the
abandoned river bed in proportion to the area which B lost
(unless of course the government takes steps to bring back
the river to its old course). Insofar as there is an excess, the
excess still belongs to the property of public dominion.
Under the law, the owners of the adjacent or adjoining lands
Page 2 of 5
are given in the “interest of agriculture” the right to
reimburse the “prejudiced owner” the value of the area lost,
hence, strictly speaking, A, as owner of the adjacent land is
given the right to so reimburse B for HALF of the
abandoned river bed (HALF only, because it should be
remembered that B himself is an adjacent owner, entitled to
the same right of reimbursement). While it may seem more
just, under a liberal interpretation of the law, to refuse A the
right of reimbursement since after all B, himself an adjacent
owner, is in a position to cultivate the abandoned river bed,
and since he was the one who lost over half of his land; and
while indeed the right of reimbursement under Art. 461
obviously contemplates a situation where the landowner
who lost land is NOT himself an adjacent owner; still it
should not be forgotten that A himself has been deprived of
the use of the river, and to partly indemnify him, he should
be given the right to pay for the value of the HALF
hereinabove referred to. Equity cannot afford to be one-
sided.
CO-OWNERSHIP
(a) may arise by an ordinary contract
(b) sex of the co-owners is immaterial
(c) co-owners may be two or more
(d) profits are proportional to respective interests(e) death of
one does not dissolve the co-ownership
(f) generally all the co-owners administer
(g) co-ownership is discouraged by law
CONJUGAL PARTNERSHIP
(a) arises only because of the marriage contract
(b) one must be a male, the other a female
(c) conjugal owners are always only two
(d) profits are generally 50-50 unless a contrary stipulation
is in a marriage settlement
(e) death of either husband or wife dissolves the conjugal
partnership
(f) generally, the husband is the administrator (g)
encouraged by law to
provide for better family solidarity
FACTS: A and B owned in common a two-story house. The
upper floor was used as a dwelling; the lower was available
for rent by stores. If A lives in a room of the upper floor,
and uses a room of the lower floor as an office, can B
demand rent?
HELD: (a) No rent for the upper floor can be demanded, for
A was exercising her right as co-owner, without prejudicing
B who, had she wanted, could have also lived in another
room of said floor, and who therefore could not have been
prejudiced.
(b) Half-rental may be demanded for the use of the lower
floor. Rent could be asked because others could have rented
the same, but only half should be given because A was co-
owner. (See also 3 Manresa 441).
R, S and T are co-owners of a ten-hectare agricultural land
in Quezon City. R is the administrator. S and T are in Spain.
May R convert that land to a memorial park without the
knowledge and consent of S and T? Explain.
ANS.: No, for clearly this conversion constitutes an
ALTERATION which by law requires UNANIMITY on the
part of all the co-owners unless a judicial order to the
contrary is obtained. (See Art. 491).
When a Co-owner May Not Successfully Demand a
Partition
(a) If by agreement (for a period not exceeding 10 years),
partition is prohibited.
[NOTE: The term may be extended by a new agreement, but
only after the expiration of the original period, otherwise the
intention of the law would be defeated.].
(b) When partition is prohibited by a donor or testator (for a
period not exceeding twenty years) — from whom the
property came.
(c) When partition is prohibited by law (as in the case of the
conjugal partnership property, except in certain instances).
(d) When a physical partition would render the property
unserviceable, but in this case, the property may be allotted
to one of the co-owners, who shall indemnify the others, or
it will be sold, and the proceeds distributed. (Art. 498).
(e) When the legal nature of the common property does not
allow partition (like in the case of party walls).
Prescription in Favor of a Co-owner Against the Other Co-
owners
(a) As a general rule, one co-owner cannot acquire the
whole property as against the other co-owners. This is why
the others can demand, as a rule, partition at any time. But
this is only true, so long as the co-owner concerned
expressly or impliedly recognizes the co-ownership.
(b) If, however, certain requirements are complied with, a
co-owner can become the exclusive owner of the others’
shares by prescription.
(c) These conditions are:
1) He must make known to the other co-owners that he is
definitely repudiating the co-ownership and that he is
claiming complete ownership over the entire property.
2) The evidence of repudiation and knowledge on the part of
the others must be clear and convincing.
3) The other requirements of prescription — continuous,
open, peaceful, public, adverse possession for the period of
time required under the law must be present.
4) The period of prescription (Statute of Limitations) shall
start to run only from such repudiation of coownership.
However, in Cordova, et al. v. Cordova, et al., L-9936, Jan.
14, 1958, the Court in an obiter made the statement that in a
constructive trust (as in the case of co-heirship where one
heir or co-owner fraudulently deprives the rest of their
shares), prescription does not run. This doctrine of
imprescriptibility of a constructive trust was reiterated in
Juan v. Zuñiga, L-17044, Apr. 28, 1962 and in Jacinto v.
Jacinto, L-17955, L-17957, May 31, 1962 but is directly AT
VARIANCE with the rule stated in J.M. Tuason and Co. v.
Magdangal, L-15539, Jan. 30, 1962, and in the case of
Cornelio Alzona, et al. v. Gregoria Capunitan, et al., L-
10228, Feb. 28, 1962. It would seem that the BETTER
RULE is that a constructive or implied trust can
PRESCRIBE, as distinguished from an express trust which
cannot prescribe (as long as in this latter case, the
relationship between trustor and trustee is recognized).
A, co-owner of property with B, succeeds in acquiring a
Torrens Title in his own name to the property. Five years
after B learned of A’s action, B fi led an action for partition
of the property. May A plead prescription of B’s cause of
action? Explain your answer.
ANS.: Generally, we may say that A cannot plead
prescription. Firstly, this is an instance of co-ownership, and
the rule is clear that here, the right to demand partition
Page 3 of 5
ordinarily does not prescribe; hence, Art. 494 of the Civil
Code states that “each co-owner may demand at any time
the partition of the thing owned in common, insofar as his
share is concerned.” Secondly, assuming that an implied
trust has been created, still such a trust cannot prescribe, if
we follow the ruling in Cordova, et al. v. Cordova, et al., L-
9936, Jan. 14, 1958 and Juan v. Zuniga, L-17955, L-17957,
May 31, 1962. Thirdly, assuming that an implied trust can
prescribe (the better rule it seems) as ruled in Cornelio
Alzona, et al. v. Gregoria Capunitan, et al., L-10228, Feb.
28, 1962, L-17044, Apr. 28, 1962 and Jacinto v. Jacinto, and
other cases, still the period in the instant problem is only
five (5) years, hence negativing prescription.
(1) How Is Possession Acquired?
(a) By material occupation (detention) of a thing or the
exercise of a right (quasi-possession). (This also includes
constitutum possessorium or traditio brevi manu.)
(b) By subjection to our will (this includes traditio longa
manu — by mere agreement; or by the delivery of keys —
traditio simbolica) (clearly, this does not require actual
physical detention or seizure).
(c) By constructive possession or proper acts and legal
formalities (such as succession, donation, execution of
public instruments; or thru the possession by a sheriff by
virtue of a court order.)
[NOTE: (1) Constitutum possessorium exists when a person
who possessed property as an owner, now possesses it in
some other capacity, as that of lessee or depositary. (2)
Traditio brevi manu — (the opposite of constitutum
possessorium) — this exists when a person who possessed
property not as an owner (like a lessee), now possesses
it as owner. (3) Traditio longa manu (delivery by the long
hand) — delivery by consent or mere pointing. (See 4
Manresa 148-149).].
[NOTE: In the absence of stipulation of the parties that the
ownership of a thing sold shall not pass to the purchaser
until he has fully paid the stipulated price, the execution of
the sale thru a public instrument shall be equivalent to the
delivery of the thing. The fact that the parties have agreed
that the balance shall be paid upon approval of a particular
loan does not evidence a contrary intention. If, however,
notwithstanding the execution ofthe instrument, the
purchaser CANNOT have the enjoyment and material
tenancy of the thing and make use of it himself, because
such tenancy and enjoyment are opposed by another, then
delivery has NOT been effected. Symbolic delivery
holdstrue when there is no impediment that may prevent the
passing of the property from the hands of the vendor into
those of the vendee.
Rules or Criteria to be Used in Case of Conflict or Dispute
Regarding Possession
(a) present possessor shall be preferred
(b) if both are present, the one longer in possession
(c) if both began to possess at the same time, the one who
present (or has) a title
(d) if both present a title, the Court will determine.
(Meantime, the thing shall be judicially deposited.)
FACTS: Rebullida owned a platinum ring kept in a vault of
the “La Estrella del Norte,” but one day, the ring was stolen
and found in the possession of Bustamante, who in good
faith had purchased it from a passing peddler, Gargantilla.
Can Rebullida get back the ring without the necessity of
reimbursement?
HELD: Yes, since the stolen ring had been acquired (though
in good faith) at a private sale, and not a public one. There is
thus no need of any REFUND of the purchase price. This
action for REPLEVIN will therefore PROSPER.
If A entrusts money to B who later gives the same to C, an
innocent recipient for value, A, cannot recover the money
(or negotiable document) from C since money ordinarily
does not bear the earmarks of particular ownership. BUT if
instead of money, the object had been an identifiable one,
then recovery can be had for C had acquired same from
someone (B) who had no authority to dispose of the same.
And such recovery does not need reimbursement. C should
require the indemnity from B and not A.
FACTS: A asked B to sell jewelry. B instead of selling,
borrowed money from a pawnshop, and as security, pledged
the jewelry. After B was convicted of ESTAFA, A asked the
pawnshop for the jewels, but the pawnshop refused to give
them up unless A first pay the amount lent by the pawnshop
to B.
HELD: A can get the jewels without giving to the pawnshop
the money borrowed by B because in the first place, the
pledge was not valid (not having been done by the owner or
his duly authorized agent); in the second place, there is no
contractual relation between A and the pawnshop; in the
third place, A had been illegally deprived of the jewels; and
fi nally it would be unjust and unfair to the owner (A)
considering the fact that ordinarily, most pawnshops do not
require their customers to first prove their ownership of the
objects being pledged.
The mere registration of a sale (such as that of large cattle)
does not make the sale a PUBLIC SALE as referred to in
Art. 559, for a public sale is one where after due notice to
the public, bidders are allowed to bid for the objects they
desire to purchase.
FACTS: A owned a truck, which was later commandeered
by the Japanese Army. After liberation, A discovered the
truck in the possession of B, who alleged that he had
purchased it from X. When A asked for the return of the
truck to him, B alleged in defense:
1) that he (B) should be considered the owner because his
possession of the movable had been in good faith;
2) that the property had neither been LOST by, nor
STOLEN from A.
HELD: A is entitled to get the truck without necessity of
reimbursing B for the purchase price given B to X.
Because:
1) ownership of the truck remained with A. While it is true
that possession of a movable in good faith is equivalent to a
title, still it is not ab-solute title by itself, and the true owner
may recover the property from the possessor.
2) it cannot be denied that the commandeering of the truck
was an unlawful deprivation suffered by A. Since the
acquisition by B was not thru a public sale, it follows that A
can recover without the necessity of reimbursing B the
purchase price paid by the latter.
X was the owner of a motor vessel which the Japanese
Army confiscated during the occupation of the Philippines.
After the liberation, the U.S. Armed Forces found the said
vessel and sold it as enemy property to Y. An action is now
fi led by X against Y for the recovery of the vessel, plus
damages. Will the action prosper? State reasons for your
answer.
Page 4 of 5
ANS.: The action will prosper. While the Japanese Army
had the right to get the motor vessel, still it was under an
obligation to restore it at the conclusion of peace, and to pay
indemnities therefor. (Art. 53, Regulations Respecting the
Laws and Customs of War on Land, Appended to the Hague
Convention of 1907). The title to the vessel did NOT
therefore pass to the Japanese Army, but remained with X.
The vessel cannot consequently be considered as enemy
property, and was not such when it was found by the U.S.
Armed Forces and sold to Y. The
sale cannot be considered valid as against X.
FACTS: Soto bought from Ong Shu several galvanized iron
sheets. Soto paid with a check, which was subsequently
dishonored by the bank. Later, Soto sold some of said sheets
to an innocent purchaser Chua Hai. Soon after, Soto was
prosecuted for estafa. While the criminalcase was pending,
the iron sheets were taken by the police. Ong Shu, the
original seller, then petitioned for the return to him of the
sheets. To this petition, Chua Hai objected, but the trial
court granted the petition for Chua Hai’s failure to put up a
bond, and so Ong Shu recovered the sheets. ISSUE: Was the
return to Ong Shu of the iron sheets proper?
HELD: No, for the following reasons:
1) Chua Hai, the acquirer and possessor in good faith of the
sheets, is entitled to be respected and protected in his
possession as if he were the true owner thereof, until ruled
otherwise by a competent court.
2) Being considered in the meantime as the true owner,
Chua Hai cannot be required to surrender possession, nor be
compelled to institute an action for the recovery of the
goods, whether or not there is an indemnity bond.
3) The mere filing of a criminal charge, that the chattel had
been illegally obtained thru estafa from its true owner by the
transferor or the possessor does not warrant disturbing the
possession of the chattel against the will of the possessor;
this is so because the mere fi ling of an estafa complaint is
no proof that estafa had in fact been committed.
4) Under Article 1505, recovery is denied even if the former
owner was deprived of his chattels thru crime, where the
purchase is made in merchant’s stores, or in fairs, or
markets.
5) The judge taking cognizance of the criminal case against
the vendor of the possessor in good faith has no right to
interfere with the possession of the latter, who is not a party
to the criminal proceedings, and such unwarranted
interference is not made justifiable by requiring a bond to
answer for damages caused to the possessor.
A agreed to sell his car to B for P200,000, the price to be
paid after the car is registered in the name of B. After the
execution of the deed of sale, A together with B, proceeded
to the Land Transportation Office (formerly, Motor Vehicles
Office) where the registration of the car in B’s name was
effected. When A asked for payment, B told him that he was
P10,000 short, and informed him that he would get from his
mother. Together, A and B rode in the car to the supposed
residence of B’s mother. Upon entering the house, B told A
to wait in the sala while he asked his mother for the money.
In the meanwhile, on the pretext that B had to show his
mother the registration papers of the car, A gave them to B,
who thereupon entered the supposed room of his mother,
ostensibly to show her the papers. That was the last time A
saw B or his car. In the meantime, B succeeded in selling
the car to C who bought the same in good faith and for
value. Question: May A recover the car from C? Reasons.
ANS.: A may successfully recover the car of C because
despite C’s good faith, and despite the registration of the car
in B’s name, still A had been unlawfully deprived of it.
Consequently, A can recover the car, and he does not have
to reimburse anything to C. The doctrine of caveat emptor
(let the buyer beware) can apply here. C’s remedy would be
to go against B, his seller. The principle in common law that
where of two innocent persons defrauded by a stranger, the
person who makes possible the fraud by a misplaced
confidence should suffer — cannot be applied in this
problem because of the express provisions of Art. 559. A is
the usufructuary of a parcel of land belonging to B. He (A)
transferred his usufructuary right to C who took possession
of the land. While possessing it, C, without the knowledge
of A, cut 100 coconut trees on the land. Is A liable to B, for
the damages caused by C, on the land under usufruct? Give
your reasons.
ANS.: Yes, A is liable to B, for a usufructuary (A) who
alienates his usufructuary right, is liable for the negligence
of his substitute (C). (Art. 590). It is clear that C had no
right to cut down the trees, for the article on woodland (Art.
577) cannot apply. There is a vast difference between a
woodland and coconut land. In the former, the usufructuary
can in certain cases cut down the trees precisely because the
way to enjoy the usufruct would be to convert the timber
into lumber; in the case of coconut land, the usufruct
extends merely to the fruits produced. At any rate, it would
have been different had the naked owner’s approval been
obtained.
(a) A and B are neighbors, and they own a party wall. If A
makes an opening or window in the party wall, in 2002, B
can close it at anytime before 2012. Because, if by that time
the window is still open, A has already acquired the
easement of light and view by prescription of 10 years,
counted from the opening of the window since this is
POSITIVE easement. A window on a party wall is
something allowed by a co-owner to be done on his own
property (owned in common) and may therefore give rise to
a positive easement or easement of sufferance.
(b) A and B are neighbors. On his building’s wall, A opened
a window beneath the ceiling joists to admit light in 2002.
Even after 10 years (2012), B may still obstruct the light by
constructing on his own lot a building higher than A’s
unless A makes a NOTARIAL PROHIBITION prohibiting
B from making the obstruction. If in 2002, A makes the
prohibition, may B still make the obstruction in 2009?
ANS.: Yes, because it is only in 2012 (ten years after the
notarial prohibition) when A may be said to have acquired
this NEGATIVE easement of light and view. After 2012, B
may no longer obstruct. [See Cortez v. Yu Tibo, 2 Phil. 24,
which held that a window opened on one’s own wall and
which does not extend over the neighbor’s land may give
rise to a NEGATIVE easement, since the neighbor may be
prohibited to do an act (building on his own lot) which
would be lawful to do if the easement did not exist. (See
also Art. 616).].
[NOTE: Is the easement of light and view positive or
negative?
ANS.: It depends:
1) if made on one’s own wall and the wall does not extend
over the neighbor’s land, the easement is NEGATIVE
(because he only does an act of ownership, and to create an
easement, a prohibition is required.
Page 5 of 5
2) if made on one’s own wall which extends over the
neighboring land (invading its atmospheric area); or if made
on a PARTY WALL, the easement is created because of an
act of SUFFERANCE or ALLOWANCE, thus the easement
is POSITIVE.
May the Easement of Right of Way be Acquired by
Prescription?
ANS.: No, because it is discontinuous or intermittent. The
limitation on the servient owner’s rights of ownership exists
only when the dominant owner actually crosses or passes
over the servient estate. Since the dominant owner cannot be
continually crossing the servient estate, but can do so only at
intervals, the easement is necessarily of a discontinuous
nature. X is the owner of a grove of mango trees, some of
the branches of which extend over the land of B.
(a) Does B have the right to gather the mango fruits on the
branches that extend into his land? Give reasons.
(b) In the same case, because of a quarrel between A and B,
unrelated to the trees, B cuts off the branches insofar as they
extend into his land, with the result that A’s trees stopped
bearing fruits for a season. Does A have a right of action
against B? Explain.
(c) Would your answer be different if, instead of cutting off
the protruding branches, B had cut off the roots of thetrees
which penetrated into his land, with the same result that the
tree stopped bearing fruits? Explain.
ANS:
(a) No, B has no right for the fruits have NOT yet naturally
fallen on his land. (Art. 681).
(b) B is liable for cutting off the branches. What he should
have done was to make a demand and not just take the law
into his own hands. (See Art. 680).
(c) In the case of the roots, B had the right to cut them since
they were on his own land.
Who is servient in an easement against nuisance? The
proprietor or possessor of the building or piece of land, who
commits the nuisance thru noise, jarring, offensive odor, etc.
is servient in an easement against nuisance; in another sense,
the building or the land itself is the servient estate, since the
easement is inherent in every building or land.
Who is dominant in an easement against nuisance? The
general public, or anybody injured by the nuisance.
What are the rights of the dominant estate? 1) If the
nuisance is a public nuisance, the remedies are: a) a
prosecution under the Penal Code or any local ordinance; or
b) a civil action; or c) abatement, without judicial
proceedings. If the nuisance is a private nuisance, the
remedies are: a) a civil action; or b) abatement without
judicial proceedings.