EASEMENTS AND SERVITUDES

Prepared by
Section A
Adapang, Wal Graceter
Alingay, Jarwell Vance
Ballagan, Leezel Mhar

Section B
Dayag, Fortunata
Gumalingging, Kate
Tuazon, Jazz

Section C
Esperanza, Trisha Joi
Define easement or servitude.
An easement or servitude is an encumbrance imposed upon an immovable (servient estate)
for the benefit of another immovable (dominant estate) belonging to a different owner.

The immovable in favor of which the easement is established is called the dominant estate;
that which is subject thereto, the servient estate. (Art. 613, NCC.)

Servitudes may also be established for the benefit of a community or of one or more persons
to whom the encumbered estate does not belong. (Art. 614, NCC.)

What is the difference between easement and servitude?

In this jurisdiction, the terms ‘‘easement” and “servitude” are used interchangeably, strictly
speaking, however, the first refers to the right, while the second refers to the encumbrance.

Borbajo v. Hidden View Homeowners

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.

What are the different characteristics of easements?

The characteristics of easements are:
1. It is a real right (jus in re);
2. It is a right imposed over another property (jus in re aliena);
3. It is a limitation upon the servient owner’s right of ownership;
4. It is a right constituted over an immovable;
5. It is inseparable from the estate to which it actively or passively belongs; and
6. It is indivisible.

Parties to an easement
1. Dominant estate - the immovable for which the easement was established
Servient estate - the estate which provides the service or benefit

DIFFERENT LEGAL EASEMENTS

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

EASEMENTS RELATING TO WATERS

Art. 637. Lower estates are obliged to receive the waters which naturally and without the
intervention of man descend from the higher estates, as well as the stones or earth which
they carry with them. The owner of the lower estate cannot construct works which will
impede this easement; neither can the owner of the higher estate make works which will
increase the burden. (552)

ENUMERATION OF LEGAL EASEMENT RELATING TO WATERS

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

WHAT LOWER ESTATES ARE OBLIGED TO RECEIVE

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

DUTIES OF THE SERVIENT ESTATE

The owner cannot construct works that would impede the easement

DUTIES OF THE DOMINANT ESTATE

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

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

LONG AS THERE IS COMPLIANCE WITH CONDITIONS
Art. 638. The banks of rivers and streams, even in case they are of private ownership, are
subject throughout their entire length and within a zone of three meters along their margins,
to the easement of public use in the general interest of navigation, floatage, fishing and
salvage.
Estates adjoining the banks of navigable or floatable rivers are, furthermore, subject to the
easement of towpath for the exclusive service of river navigation and floatage. If it be
necessary for such purpose to occupy lands of private ownership, the proper indemnity shall
first be paid. (553a)

EASEMENT ALONG RIPARIAN BANKS RIVER BANK, DEFINED

> A bank is a lateral strip of shore washed by the water during high tides but which cannot
be said to be flooded or inundated

THE EASEMENTS ALLOWED

1. On banks of rivers; a public easement for
a. Navigation
b. Floatage
c. Fishing
d. Salvage

2. On banks of navigable or floatable rivers—also the easement of tow path

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

WIDTH OF ZONE BURDENED

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

Art. 639. Whenever for the diversion or taking of water from a river or brook, or for the use
of any other continuous or discontinuous stream, it should be necessary to build a dam, and
the person who is to construct it is not the owner of the banks, or lands which must support
it, he may establish the easement of abutment of a dam, after payment of the proper
indemnity. (554)

EASEMENT CONCERNING A DAM

Art. 640. Compulsory easements for drawing water or for watering animals can be imposed
only for reasons of public use in favor of a town or village, after payment of the proper
indemnity. (555)
EASEMENTS FOR DRAWING WATER OR FOR WATERING ANIMALS
1. They can be imposed only for reasons of public use
2. They must be in favor of a town or village
3. Proper indemnity must be paid

Art. 641. Easements for drawing water and for watering animals carry with them the
obligation of the owners of the servient estates to passage to persons and animals to the
place where such easements are to be used, and the indemnity shall include this service.
(556)

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

REQUIREMENTS FOR SUCH AN EASEMENT TO EXIST

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

Art. 642. Any person who may wish to use upon his own estate any water of which he can
dispose shall have the right to make it flow through the intervening estates, with the
obligation to indemnify their owners, as well as the owners of the lower estates upon which
the waters may filter or descend. (557)

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

RIGHT TO ACQUIRE THE EASEMENT OF AQUEDUCT

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

Art. 643. One desiring to make use of the right granted in the preceding article is obliged:
(1) To prove that he can dispose of the water and that it is sufficient for the use for which it
is intended;
(2) To show that the proposed right of way is the most convenient and the least onerous to
third persons;
(3) To indemnify the owner of the servient estate in the manner determined by the laws and
regulations. (558)

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

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

Art. 646. For legal purposes, the easement of aqueduct shall be considered as continuous and
apparent, even though the flow of the water may not be continuous, or its use depends upon
the needs of the dominant estate, or upon a schedule of alternate days or hours. (561)

Art. 647. One who for the purpose of irrigating or improving his estate, has to construct a
stop lock or sluice gate in the bed of the stream from which the water is to be taken, may
demand that the owners of the banks permit its construction, after payment of damages,
including those caused by the new easement to such owners and to the other irrigators.
(562)

CONSTRUCTION OF A STOP LOCK OR SLUICE GATE

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

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

PROVISIONS THAT GOVERN EASEMENTS RELATING TO WATERS

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

EASEMENT OF RIGHT OF WAY

Art. 649. The owner, or any person who by virtue of a real right may cultivate or use any
immovable, which is surrounded by other immovables pertaining to other persons and
without adequate outlet to a public highway, is entitled to demand a right of way through the
neighboring estates, after payment of the proper indemnity.

Should this easement be established in such a manner that its use may be continuous for all
the needs of the dominant estate, establishing a permanent passage, the indemnity shall
consist of the value of the land occupied and the amount of the damage caused to the servient
estate.

In case the right of way is limited to the necessary passage for the cultivation of the estate
surrounded by others and for the gathering of its crops through the servient estate without
a permanent way, the indemnity shall consist in the payment of the damage caused by such
encumbrance. This easement is not compulsory if the isolation of the immovable is due to
the proprietor's own acts. (564a)

EASEMENT OF RIGHT OF WAY DEFINED

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

REQUISITES FOR THE EASEMENT

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

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

CLASSIFICATION OF RIGHT OF WAY

1. Private
2. public
Art. 650. The easement of right of way shall be established at the point least prejudicial to
the servient estate, and, insofar as consistent with this rule, where the distance from the
dominant estate to a public highway may be the shortest. (565)

N.B: Adequacy to dominant estate

Art. 651. The width of the easement of right of way shall be that which is sufficient for the
needs of the dominant estate, and may accordingly be changed from time to time. (566a)

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

Art. 652. Whenever a piece of land acquired by sale, exchange or partition, is surrounded by
other estates of the vendor, exchanger, or co-owner, he shall be obliged to grant a right of
way without indemnity.

In case of a simple donation, the donor shall be indemnified by the donee for the
establishment of the right of way. (567a)

RULE IF LAND OF VENDOR IS ISOLATED FROM THE HIGHWAY

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

Art. 653. In the case of the preceding article, if it is the land of the grantor that becomes
isolated, he may demand a right of way after paying a indemnity. However, the donor shall
not be liable for indemnity. (n)

RULES IF GRANTOR OR GRANTEE’S LAND IS ENCLOSED

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

Art. 654. If the right of way is permanent, the necessary repairs shall be made by the owner
of the dominant estate. A proportionate share of the taxes shall be reimbursed by said owner
to the proprietor of the servient estate. (n)

OWNERSHIP OF, REPAIRS AND TAXES ON, THE PATH

1. Even though permanent, the path belongs to the servient estate, and he pays all the taxes
2. But the dominant estate—
a. Should pay for repairs
b. Should pay proportionate share of taxes to the servient estate

Art. 655. If the right of way granted to a surrounded estate ceases to be necessary because
its owner has joined it to another abutting on a public road, the owner of the servient estate
MAY DEMAND that the easement be extinguished, returning what he may have received by
way of indemnity. The interest on the indemnity shall be deemed to be in payment of rent
for the use of the easement. The same rule shall be applied in case a new road is opened
giving access to the isolated estate. In both cases, the public highway must substantially meet
the needs of the dominant estate in order that the easement may be extinguished. (568a)

CAUSES FOR EXTINGUISHMENT OF THE EASEMENT OF RIGHT OF WAY

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

EXTINGUISHMENT NOT AUTOMATIC

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

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

INDEMNITY IN CASE OF TEMPORARY EASEMENT
Art. 656. If it be indispensable for the construction, repair, improvement, alteration or
beautification of a building, to carry materials through the estate of another, or to raise
therein scaffolding or other objects necessary for the work, the owner of such estate shall be
obliged to permit the act, after receiving payment of the proper indemnity for the damage
caused him. (569a)

TEMPORARY EASEMENT OF RIGHT OF WAY

1. The easement here is necessarily only temporary, nonetheless proper indemnity must be
given

2. Indispensable is not to be construed literally

3. The owner can make use of Article 656

Art. 657. Easements of the right of way for the passage of livestock known as animal path,
animal trail or any other, and those for watering places, resting places and animal folds, shall
be governed by the ordinances and regulations relating thereto, and, in the absence thereof,
by the usages and customs of the place. Without prejudice to rights legally acquired, the
animal path shall not exceed in any case the width of 75 meters, and the animal trail that of
37 meters and 50 centimeters. Whenever it is necessary to establish a compulsory easement
of the right of way or for a watering place for animals, the provisions of this Section and those
of Articles 640 and 641 shall be observed. In this case the width shall not exceed 10 meters.
(570a)

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

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

Dichoso, JR. v. Marcos (2011)

The conferment of a legal easement of right of way is governed by Articles 649 and 650.
The following are the requisites that should be met to be entitled to an easement of right of
way:
1. The dominant estate is surrounded by other immovables and has no adequate outlet
to a public highway;

2. There is payment of proper indemnity;

3. The isolation is not due to the acts of the proprietor of the dominant estate; and

4. 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 distance front eh
dominant estate to a public highway may be the shortest.

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.
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 may be granted.

Mere convenience for the dominant estate is not what is required by law as the
basis of setting up a compulsory easement. Even in the face of necessity, if it can
be satisfied without imposing the easement, the same should not be imposed.

The convenience of the dominant estate has never been the gauge for
the grant of compulsory right of way. To be sure, the true standard for the grant of
the legal right is "adequacy."
Bogo-Medellin Milling, Co. v. CA
The easement of right of way is considered discontinuous because it is exercised only if
a person passes or sets foot on 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. 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.

In this case, the presence of railroad tracks for the passage of petitioner's trains denotes the
existence of an apparent but discontinuous easement of right of way. And under Article
622 of the Civil Code, discontinuous easements, whether apparent or not, may be acquired
only by TITLE. Unfortunately, petitioner Bomedco never acquired any title over the use of
the railroad right of way whether by law, donation, testamentary succession or contract. Its
use of the light of way, however long, never resulted in its acquisition of the easement.

Upon demand by respondent heirs in 1989 for the return of the subject land and the removal
of the railroad tracks, or, in the alternative, payment of compensation for the use thereof,
petitioner Bomedco which had no title to the and should have returned the possession
thereof or should have begun paying compensation for its use.

But when is a party deemed to acquire title over the use of such land? In at least two
cases, we held that if:
a. It had subsequently entered into a contractual right of way with the heirs for
the continued use of the land under the principles of voluntary easements or
b. It had filed a case against the heirs for conferment on it of a legal easement of
right of way under Article 629 of the Civil Code, then title over the use of the
land is deemed to exist.

Emma bought a parcel of land from Equitable-PCI Bank, which acquired the same from
Felisa, the original owner. Thereafter, Emma discovered that Felisa had granted a right
of way over the land in favor of the land of Georgina, which had no outlet to a public
highway, but the easement was not annotated when the servient estate was registered
under the Torrens system. Emma then filed a complaint for cancellation of the right of
way, on the ground that it had been extinguished by such failure to annotate. How would
you decide the controversy? (2001)
The complaint for cancellation of easement of right of way must fall. The failure to annotate
the easement upon the title of the servient estate is not among the grounds for extinguishing
an easement under Art. 631 of the NCC. Under Article 617, easements are inseparable from
the estate to which they actively or passively belong. Once it attaches, it can only be
extinguished under Art. 631, and they exist even if they are not stated or annotated as an
encumbrance on the Torrens title of the servient estate. (II Tolentino 326,1987 ed.)
 CHAPTER 2: LEGAL EASEMENTS
C. EASEMENT OF PARTY WALL
Easement of party wall
The easement of party wall is also called servidumbre de medianera.

Party Wall
Is a wall erected on the line between the adjoining properties belonging to
different persons, for the use of both estates. (Pineda, 2009)

Governed by:
1. The Civil Code;
2. Local ordinances and customs; and
3. The rules co-ownership.

Is the easement of party wall really an easement or is it a case of co-ownership?

Answer: While it is called an easement by the law, the law in some articles refers
to it as a case of co ownership or part-ownership (NCC, Articles 662, 665, 666). The
truth is that, it is a compulsory kind of co-ownership (FORGED INDIVISION) where the
shares of each owner cannot be separated physically (otherwise the wall would be
destroyed), although said shares may in a sense be materially pointed out. Thus, each
co-owner owns the half nearest to him (Paras, 2008).

The existence of an easement of party wall is presumed, unless there is a title, or

exterior sign, or proof to the contrary:
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 in rural
communities; or
3. In fences, walls and live hedges dividing rural lands (NCC, Art. 659).

It is understood that there is an exterior sign, contrary to the easement of party wall
whenever:
1. There is a window or opening in the dividing wall of the buildings;
2. 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;
3. Entire wall is built within the boundaries of one of the estates;
4. The dividing walls bears the burden of the binding beams, floors and roof
frame of one of the buildings, but not those of the others;
5. 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;
6. The dividing wall, being built by masonry, had stepping stones, which at
certain intervals project from the surface of one side only, but not on the other;
or
7. The lands enclosed by fences or live hedges adjoin others which are not
enclosed.

In all these cases, the ownership is deemed to belong exclusively to the

owner of the property which has in its favor the presumption based on any of
these signs.

Right to Increase Height of Party Wall

Every part-owner of a party has the right to increase the height of the party wall
subject to the following 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, If it be
necessary to make it thicker, he shall give space required from his own
land.

Repairs and Maintenance of a Party Wall

The expenses for construction and repairs of party walls shall be
shouldered by all the owners of the party wall. But if a part owner renounces his
part ownership on the party wall. The renunciation must be absolute and total
because the easement of party wall is indivisible.

NOTE: The owner of the building or structure supported by a party wall

who desires to demolish such building or structure, may RENOUNCE his part
ownership of the wall. Cost of all repairs and works necessary to prevent any
damage which the demolition may cause to the party wall on this occasion
shall be borne by him.

D.Easement of Light and View

No part-owner may, without the consent of the others, open through the party
wall any window or aperture of any kind (NCC, Art. 667).
A window or opening in the dividing wall of buildings is an exterior sign which
rebuts the presumption that the wall is a party wall; one part owner may not,
therefore, make any window or opening of any kind thru a party wall without
the consent of others.
The easement of LIGHT — “Jus luminum” The opening is for the purpose of
admitting light and not for viewing. (as in the case of small windows, not
more than 30 cm. square, at the height of the ceiling joist, the purpose of
which is to admit light, and a little air, but not VIEW) (Paras. 2008).

The easement of VIEW — “Servidumbre prospectus” The opening is for the

purpose of viewing. (as in the case of full or regular windows overlooking the
adjoining estate) (Incidentally, although the principal purpose here is VIEW, the
easement of light is necessarily included, as well as the easement of altius
non tollendi [not to build higher for the purpose of obstruction.
. When easement of light and view is positive and when negative ?
Positive — If the window is thru a party wall (NCC, Art. 668, par. 1).
NOTE: The mere opening of the window does not create the easement; it
is only when after a sufficient lapse of time the window still remains open,
that the easement of light and view is created (NCC, Art. 668, par. 1).
Moreover, even if the window is on one’s own wall, still the easement
would be positive if the window is on a balcony or projection extending
over into the adjoining land (Paras, 2008).
Negative — If the window is thru one’s own wall, that is, thru a wall of the
dominant estate (NCC, Art. 668, par. 2).
What is the significance of determining whether an easement is positive or
negative?
Such determination is consequential in determining how an
easement is acquired.
 According to Article 621, in order to acquire easements by
prescription in positive easements, the prescriptive period shall
commence 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.
With respect to negative easements — 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 easement.
“Formal prohibition’’ or “formal act’’ (under the old Civil Code, Art.
538) means not merely any writing, but one executed in due form and/or
with solemnity — a public instrument (Laureana A. Cid v. Irene P. Javier,
et al., L-14116, June 30, 1960).
As a general rule, an easement of light and view is a positive one if the
window or opening is situated in a party wall, while it is a negative one if
the window or opening is thru one's own wall, i.e., thru a wall of the
dominant estate. However, even if the window is on one's own wall, still
the easement would be positive if the window is on a balcony or
projection extending over into the adjoining land.
The existence of an easement of light and view under Article 624 is established
as long as:
1. There exists an apparent sign of servitude between two estates;
2. The sign of the easement must be established by the owner of both
tenements;
3. Either or both of the estates are alienated by the owner; and
4. At the time of the alienation nothing is stated in the document of
alienation contrary to the easement nor is the sign of the easement
removed before the execution of the document.
Openings at height of ceiling joints to admit light (NCC, Art. 669)
When the distances in Art. 670 are not observed, the owner of a wall
which is not a party wall can make an opening for the purpose of
admitting light and air, but NOT for view.
Restrictions for making an opening for light and air
1. The size must not exceed 30 centimeter square;
2. The opening must be at the height of the ceiling joists or
immediately under the ceiling;
3. There must be an iron grating embedded in the wall; and
4. There must be a wire screen.
NOTE: If the wall becomes a party wall – A part owner can order the
closure of the opening because no part owner may make an
opening through a party wall without the consent of the others; it
can also obstruct the opening unless an easement.
The openings allowed by Art. 669 are for the purpose of admitting
light; hence they can be made only in the walls of buildings.
NOTE: Art. 669 refers to restricted windows.
Direct and oblique views (NCC, Articles 670- 671)
Articles 670 and 671 deal with regular, full windows.
1. Direct views — those openings which are made on a wall parallel or
almost parallel to the line that divides the estates, in such a way that
the neighboring tenement can be seen without putting out or turning
the head, or
In relation to direct view windows or openings, the Civil Code
provides two distance rules or distances that must be observed
before they can be made or established.
a. Two-meter distance rule (Article 670) - General Rule: when a
window or any similar opening affords a direct view of an
adjoining land, the distance between the wall in which such
opening is made and the border of the adjoining land should
be at least two meters.
b. Three-meter distance rule (Article 673) - Whenever by any title
a right has been acquired to have direct views, balconies or
belvederes overlooking an adjoining property, the owner of the
servient estate cannot build thereon at less than a distance of
three meters, not two meters, from the property line, to be
measured in the manner provided in Article 671.
Exception to the GR: In a situation wherein an easement is
established or recognized by title or prescription, affording the
dominant estate the right to have a direct view overlooking the
adjoining property, i.e., the servient estate, which is the exact
situation in the instant case, the two-meter requirement under
Article 670 is not applicable. Instead, Article 673 is the applicable
rule as it contemplates the exact circumstance attendant in the
instant case, i.e., wherein an easement of view is created by virtue
of law.
2. Oblique views — those openings in a wall which form an angle to the
boundary line, and therefore of necessity requires in order to see the
neighboring tenement to thrust the head out of the opening and look
to the right or left.
NOTE: When windows are opened at a distance less than that
prescribed by Art. 670 from the boundary lines, they constitute
unlawful openings, and the owner who opened them may be
ordered by the court to close them.
Prescription may still be acquired as a negative easement after ten
years from the time of notarial prohibition. (NCC, Art. 671).
EXAMPLE: X was the original owner of two (2) adjoining lots. He had
constructed on one of the lots a house with windows overlooking the
adjoining lot. In 1940, he sold the first lot, including the house to A and the
second lot to B. In 1955, B applied for a permit to construct a house on his
lot. A opposed the approval of the application. The application, however,
was approved. Subsequently, A brought an action to restrain B from
constructing the house, unless it is erected at a distance of not less than
three (3) meters from the boundary line. A contends that he has acquired
an easement of light and view in accordance with Art. 624 of the NCC,
while B maintains that since he has never been formally prohibited by A
 from obstructing the light and view as required by Arts. 621 and 668 of the
NCC, consequently, there can be no basis for the existence of an
easement of light and view. Decide the case stating your reasons.
A is correct. The case at bar falls squarely within the purview
of Art. 624 of the NCC which declares that “the existence of an
apparent sign of easement between two (2) estates, established or
maintained by the owner of both, shall be considered, should either
of them be alienated, as a title in order that the easement may
continue actively and passively, unless, at the time the ownership of
the two (2) estates is divided, the contrary should be provided in the
title of conveyance of either of them or the sign aforesaid should be
removed before the execution of the deed.” All of the requisites for
the application of this rule are present in this case. In the first place,
there is an apparent sign of an easement between two (2) estates
originally owned by one and the same person; in the second place,
the sign was established by the original owner; in the third place,
one or both estates were subsequently alienated; and in the fourth
place, the contrary was not provided in the title of conveyance;
neither was the sign removed. (Gargantos vs. Tan Yanon, 108 Phil.
888.)
Where buildings are separated by a public way or alley (NCC, Art. 672)
The distance provided in Art. 670 is not compulsory where there is a public
way or alley provided that it is not less than three meters wide, the minimum
width is necessary for the sake of privacy and safety.
NOTE: The width of the alley is subject to special regulations and
ordinances. A private alley opened to the use of the general public falls within
the provision of Art. 672.
Where easement of direct view had been acquired (NCC, Art. 673)
Whenever the easement of direct view has been acquired by any such
title, there is created a true easement. The owner of the servient estate cannot
build thereon at less than a distance of three meters from the boundary line.
NOTE: The title used in Art. 673 refers to any modes of acquiring easements:
1. Contract;
2. Will;
3. Donation; or
4. Prescription.
The distance may be increased or decreased by stipulation of the parties
provided that in case of decrease, the minimum distance of two meters or sixty
centimeters prescribed in Art. 670 must be observed, otherwise it is void. The said
distances involve considerations of public policy and the general welfare;
hence, they should not be rendered ineffective by stipulation.
E. EASEMENT OF DRAINAGE
The owner of a building shall be 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 (NCC, Art. 674).
NOTE: Art. 674 does not establish servitude but merely regulates the use of one's
property.
Easement to receive falling rain waters (NCC, Art. 675)
The owner of a tenement or a piece of land, subject to the easement of
receiving water falling from roofs, may build in such manner as to receive the
water upon his own roof or give it another outlet in accordance with local
ordinances or customs, and in such a way as not to cause any nuisance or
damage whatever to the dominant estate.
Easement giving outlet to rain water where house surrounded by other houses
Requisites:
1. There must be no adequate outlet to the rain water because the yard
or court of a house is surrounded by other houses;
2. The outlet to the water must be at the point where egress is easiest, and
establishing a conduit for drainage; and
3. There must be payment of proper indemnity (NCC, Art. 676).
Ownership of Rain Water
Pursuant to the provision of the Water Code of the Philippines, the, rain waters
falling on private lands shall belong to the State.
F. INTERMEDIATE DISTANCES AND WORKS FOERTAIN CONSTRUCTIONS AND PLANTINGS
No constructions can be built or plantings made near fortified places or fortresses
without compliance with the conditions required in special laws, ordinances, and
regulations relating thereto (NCC, Art. 677).
NOTE: Art. 677 establishes an easement in favor of the State. The general
prohibition is dictated by the demands of national security.
Construction of aqueduct, well, sewer, etc.
No person shall build any aqueduct, well, sewer, furnace, forge, chimney, stable,
depository of corrosive substances, machinery, or factory which by reason of its nature
or products is dangerous or noxious, without observing the distances prescribed by the
regulations and customs of the place, and without making the necessary protective
works, subject, in regard to the manner thereof, to the conditions prescribed by such
regulations. These prohibitions cannot be altered or renounced by stipulation on the
part of the adjoining proprietors (NCC, Art. 678).
NOTE: The owner must take necessary protective works or other neighboring estates.
Planting of trees
Art. 679 establishes a negative easement. It provides the minimum distances of
trees and shrubs from the boundary line. They shall be regulated by the local
ordinances and in the absence thereof, by the customs of the place, and in default
thereof, by art, 679.
Distance in Planting of Trees under Article 679 of the New Civil Code.
1. The distance authorized by local ordinaces or customs of the place, if any; or
2. If there are no ordinance or custom:
 (a.) Atleast two (2) meters from the dividing line of the estate in case of
tall trees; and
(b.) At a distance of atleast 50 centimeters in case of shrubs or small trees.
Intrusions of branches or roots into neighboring estate
Right to cut roots can be exercised without notice to the owner of the trees. BUT
as to the branches, it is necessary to ask that they be cut, and if the owner of
the tree does not do so voluntarily, the court may authorize the neighboring
owner to cut them.
The right to cut does not prescribe so long as the owner tolerates the branches
and roots invading his tenement. BUT the moment the owner of the tenement
demanded that the branches be cut off and the owner of the tree refuses to
do so, the prescription starts to run.
Fruits naturally falling upon adjacent land
Who owns the fruits which fall from the adjacent land?
Such fruits belong to the owner of the adjacent land to compensate him
for the inconvenience causes by the branches of trees extending over his land.
Note however that for the adjacent owner to be entitled to the fruits they must
not only fall upon his land but the falling must occur naturally.
NOTE: If the fruits fall on public property, the owner of the tree retains ownership.
G. EASEMENT AGAINST NUISANCE
Easement against nuisance is a negative easement because the proprietor or
possessor is prohibited to do something which he could lawfully do were it not for the
existence of the easement. However, nuisance involves any act or omission which is
unlawful.
NOTE: The easement against nuisance is not an easement at all but a restriction upon t
he ownership and not every limitation on the right of ownership is an easement.
LATERAL AND SUBJACENT
H. Proprietor prohibited from making dangerous excavations
No proprietor shall make such excavations upon his land as to deprive any adjacent
land or building of sufficient lateral or subjacent support (NCC, Art. 684).
Lateral Support
This is the support on the vertical side of a land, the removal of which may cause
the land to crumble or slide.
Subjacent Support
This is the horizontal support underneath a land or building the removal of which
may cause the sinking or crumbling of the land or building.
‘Lateral’ Distinguished from ‘Subjacent’
The support is lateral when both the land being supported and the supporting
land are on the SAME PLANE; when the supported land is ABOVE the supporting land,
the support is subjacent (Paras, 2008).
Remedies for violation of Art. 684
1. Claim for damages for injuries sustained; or
2. Injunction.
 NOTE: Any stipulation or testamentary provision allowing excavations that cause
danger to an adjacent land or building shall be void (NCC, Art. 685).
Notice to owners of adjacent lands
Any proprietor intending to make any excavation contemplated in Articles 684-
686 shall notify all owners of adjacent lands. The notice is mandatory except where
there is actual knowledge of the proposed excavation.
NOTE: The legal easement of lateral and subjacent support are NOT only
applicable for buildings already constructed at the time of the excavations but also to
future buildings that may be constructed on the adjoining lands.

Chapter 3 Voluntary Easement

A right to cross or otherwise use someone else's land for a specified purpose.
Easement may be Voluntary or Compulsory
Voluntary
1. Voluntary when the claimant is not entitled to demand for an easement as a matter
of right
2. Legal easement is also not present
3. It may only be constituted upon the will of the owner of the servient estate
4. Effective between parties, heirs, and assigns
Compulsory
1. Can be demanded by the claimant as a matter of right upon payment of the proper
indemnity
2. Establishment of Easement on Property held in Usufruct
Since easement consist of a limited use and enjoyment of the thing without possession,
the establishment of a voluntary easement on a tenement or a piece of land is not
inconsistent with the existence of a usufruct over the same property. *
Owner of a tenement/piece of land
1. May impose any servitude over the tenement of piece of land
2. Without the consent of the usufructuary, it is only the owner of a tenement/piece of
land who can constitute an easement
over his property
Usufructuary
1. Not an easement (if the usufructuary will impose the same servitude upon the property
heldin usufruct, it is not considered as an easement or servitude because it will not bind
theowner)
2. Personal Right (The right created is not real right but a personal right which is
onlybinding to the usufructuary)
Easement over Co-owned Property
Unanimous consent (the consent of all the co-owners is required to constitute a
voluntary easement)If one owner decided to give his consent separately then it will be
binding between him and his successors. In this case he cannot change his mind and
withdraw hisconsent if the other owners will give their consent
Abandonment of the Property
An easement is considered to be abandoned by the holder if the holder does
something that shows a clear intent to stop using the easement permanently. However, non-
use alone is not enough to be considered abandonment.
Example: Steve owns property that is between Debra’s house and Main Street. At one
point, Steve grants Debra an easement to walk over a path through Steve’s land to
Main Street. One day Debra stops using the path and does not use it for a year.
The easement is not extinguished because non-use is not an action that clearly
shows intent to abandon the easement. However, if Debra were to build a wall on her
own property that would block access to the path from her property, that would
probably be enough of an action to constitute abandonment.
NUISANCE
1. A person, thing, or circumstance causing inconvenience or annoyance.
2. The word nuisance means to injure, hurt or harm
3. The law on nuisance is a restriction or limitation upon ownership and a manifestation of
the principle that every person should so use his property as not to cause damage or
injury to others
Requisites (ISAHO):
1. Injures/endangers the health or safety of others;
2. Shocks, defies or disregards decency or morality;
3. Annoys or offends the senses;
4. Hinders or impairs the use of property; or
5. Obstructs or interferes with the free passage to any public highway or street,
or body of water.
Classes:
1. Per se - nuisance at all times and under all circumstances regardless of
location and surrounding.
2. Per accidens - nuisance by reason of circumstances, location, or surroundings.
3. Public - affects the community or a considerable number of persons.
4. Private - affects only a person or a small number of persons.
In order to consider it nuisance, it needs to be a substantial and unreasonable
interference with the private use and enjoyment of another’s land . It is necessary that
the plaintiff must suffer some form of damage
Attractive Nuisance Doctrine
1. Premised on the belief that one who maintains a dangerous condition which is likely to
attract children on their property is under a duty to post a warning or take affirmative
action to protect children from the dangers of that attraction
2. Not applicable to bodies of water, artificial as well as natural, in the absence of some
unusual condition or artificial feature other than the mere water and its location.