Easement
right to use the property.
EASEMENT IN GENERAL
An easement is an encumbrance imposed upon
an immovable for the benefit of another
immovable belonging to a different owner.
But an easement is not always for the benefit of
another landowner; an easement can also be
established for the benefit of a community, or of
one or more persons to whom the encumbered
estate does not belong.
With regards to the right of the burden imposed,
an easement is considered a real right on
another’s property, corporeal and immovable,
whereby the owner of the servient estate must
refrain from doing or allowing somebody else to
do, or something to be done on his property, for
the benefit of another person or tenement,
known as the dominant estate.
Easement is considered as a real right since it is
constituted on the thing itself and not upon the
owner or its occupant.
The right consists in the limited use and
enjoyment of the thing without possession, and
gives rise to an action in rem in favor of the
owner of the tenement of the easement and
against any possessor of the servient estate.
Unlike a lease, an easement does not give its
holder the right of possession over the property,
but only a right to use over the property for a
special and limited purpose. It gives the holder
of an easement an incorporeal interest on the
land, which is non-possessory in character.
IT IS CONSTITUTED OVER AN IMMOVABLE
The right of easement is always enjoyed over an
immovable property.
Immovable here is to be understood in its
ordinary sense and not in the manner defined in
Art. 415. Here, immovable refers to those things
which, by their nature, cannot be moved from
one place to another.
An easement is constituted over another’s
property. An easement involves an abnormal
restriction on the property rights of the servient
owner and is regarded as an encumbrance on
the servient estate. As such, it serves as a
limitation on the title of the owner of the
servient estate, specifically with regards to his
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 estate belong to different
owners. As such, when there is a merger in the
same person of the ownership of the dominant
and servient estates, the easement is
extinguished.
While an easement is an encumbrance, 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.
DICHOSO V MARCOS
Dichoso asked for an Easement of Right of Way
from Marcos, alleging that they have no access
to a public road to and from their property.
Marcos, however, maintained that there is an
existing easement of right of way available to
Dichoso granted to him by the Spouses Arce.
Dichoso contend that Marcos's lot is the shortest
route in going to and from their property to a
public street and where they used to pass.
The Supreme Court ruled that an easement
involves an abnormal restriction on the property
rights of the servient owner and is regarded as
an 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. The true standard for
the grant of the legal right is "adequacy." In order
to justify the imposition of an easement of right
of way, there must be real, not fictitious or
artificial, necessity for it. As such, when there is
already an existing adequate outlet from the
dominant estate to a public highway, as in this
case, even when the said outlet, for one reason In a personal easement, the person in whose
or another, be inconvenient, the need to open favor the easement is constituted need not be
up another servitude is entirely unjustified. the owner of any certain estate and does not
require a dominant estate because the person in
KINDS OF EASEMENT:
whose favor the easement is constituted need
1. As to the recipient of the benefit:
not be the owner of the property.
a. real
b. personal PERSONAL EASEMENT DISTINGUISHED FROM
REAL EASEMENT
2. As to its source:
a. legal (established by law)
A personal easement is due not to an estate or a
i. public legal easement
parcel of land, but to a person, independently of
ii. private legal easement
that person’s ownership of any immovable or
b. voluntary (established by the will of
estate. If the easement is established for a given
the owners)
person, the same is inseparable from his person,
and necessarily ceases at his death, unless there
3. As to its exercise:
is a stipulation to the contrary. Because the right
a. continuous or discontinuous
to personal easement does not extend to the
b. apparent or non-apparent
successors in interest.
c. positive or negative

EASEMENTS ACCORDING TO THE RECIPIENT OF

A real easement, on the other hand, is imposed
THE BENEFIT:
upon one of two estates, called the servient
estate, for the enjoyment of the dominant
Real Easement estate. In a real easement, the right of easement
resides in the estate itself and not in the physical
person who successively occupies or enjoys it.
A real easement, also known as a praedial
easement, is when the encumbrance is imposed PERSONAL EASEMENT DISTINGUISHED FROM
upon an immovable for the benefit of another REAL EASEMENT
immovable belonging to a different owner. A
real easement therefore, requires the existence
A personal easement is due not to an estate or a
of two distinct immovables belonging to
parcel of land, but to a person, independently of
different owners. The real easement is imposed
that person’s ownership of any immovable or
upon one of two estates. The one which
estate. If the easement is established for a given
provides the easement is called the servient
person, the same is inseparable from his person,
estate.
and necessarily ceases at his death, unless there
The immovable in favor of which the easement
is a stipulation to the contrary. Because the right
is established is called the dominant estate.
to personal easement does not extend to the
In a real easement, the right over the easement
successors in interest.
resides in the estate itself and not in the physical
person who successively occupies or enjoys it.
A real easement, on the other hand, is imposed
Personal Easement
upon one of two estates, called the servient
estate, for the enjoyment of the dominant
A personal easement, on the other hand, is an estate. In a real easement, the right of easement
encumbrance imposed upon an immovable for resides in the estate itself and not in the physical
the benefit of a community or of one or more person who successively occupies or enjoys it.
persons to whom the encumbered estate does
SOLID MANILA CORP. v. BIO HONG TRADING
not belong.
CO.
Solid Manila is the owner of a parcel of land. The
In a personal easement, there is no owner of the
property lies in the vicinity of another property,
dominant estate to speak of and the easement
registered in the name of Bio Hong. It is also
pertains to persons without a dominant estate.
covered by a TCT. When Bio Hong bought the
property, there was an existing easement of
right of way. Bio Hong’s title from the prior
owner contained a provision in their deed of sale
which stated:
x x x a portion thereof have been converted into
a private alley for the benefit of neighboring
estates, this being duly annotated at the back of
the covering Transfer Certificate of Title per
regulations of the Office of the City Engineer of
Manila
It is shown above that the fact of easement was
annotated in the TCT of Bio Hong.
Solid Manila claims that ever since, it, together
with other residents of neighboring estates,
made use of the above private alley and
maintained and contributed to its upkeep, until
sometime in 1983, when, and over its protests,
Bio Hong constructed steel gates that hampered
their use of the alley.
Solid Manila commenced a suit for injunction
against Bio Hong, to have the gates removed and
to allow them full access to the easement.
But Bio Hong insisted that the easement referred
to has been extinguished by merger in the same
person of the dominant and servient estates
upon its (Bio Hong’s) purchase of the property
from its former owner.
The Trial Court rendered judgment against Bio
Hong.
On appeal to the Supreme Court, one of the
issues raised by Bio Hong was that the easement
had been extinguished by merger.
The Supreme Court ruled that no genuine
merger took place as a consequence of the sale
in favor of Bio Hong.
A merger exists when ownership of the
dominant and servient estates are consolidated
in the same person.
The servitude in question here is a personal
servitude. It was constituted not in favor of a
particular tenement (a real servitude) but rather,
for the benefit of the general public. A personal
easement is imposed upon an immovable for the
benefit of a community or of one or more
persons. In a personal servitude, there is no
"owner of a dominant tenement" to speak of,
and the easement pertains to persons without a
dominant estate. In this case, it was constituted
in favor of the public at large.
As such, no genuine merger took place as a
consequence of the sale in favor Bio Hong
because there was no consolidation of
ownership of the servient and dominant estate
in one person. The easement being a personal
easement, it does not belong to anyone as it was
created for the benefit of the community.
Unless the owner conveys the property in favor
of the public, if that is possible, no genuine
merger can take place that would terminate a
personal easement.
For this reason, the defense put up by Bio Hong
was not valid.
CLASSIFICATION OF EASEMENT AS TO ITS
SOURCE:
Legal vs Voluntary
Legal or compulsory easements are those which
can be enforced by force of law, and therefore,
may be established even against the will of the
owner of the servient estate.
It is constituted by law for public use or for public
interest. If the legal easement has for its object,
public use, then the easement is called public
legal easement. If the legal easement is for the
interest of private persons, then the easement is
called private legal easement.
Voluntary easement is constituted by will or
agreement of the parties or by reason of the will
of the servient owner.
CONSTINUOUS V DISCONTINUOUS EASEMENT
An easement may also be either continuous or
discontinuous, depending on the manner by
which they are exercised.
An easement is continuous if its use is incessant
without the intervention of any act of man, like
the easement of drainage. They are those the
enjoyment of which is continual, without the
necessity of any actual interference by man.
A good example of a continuous easement is the
easement of light and view.
An easement is discontinuous if it is used at
intervals and depends on the act of man, like the
easement of right of way. Its use is at intervals
and depends upon the acts of man. It can be
exercised only if a man passes or puts his feet
over somebody else’s land.
ABELLANA V CA
Abellana, together with several other persons,
live on a parcel of land next to Nonoc Homes
Subdivision. They filed an action to establish an
easement of right of way over a subdivision road
which, according to them, used to be a mere
footpath which they and their ancestors had
been using since time immemorial, and that,
hence, they had acquired, through prescription,
an easement of right of way therein. The
construction of a wall by the subdivision
deprived them of the use of the subdivision road
which gives the subdivision residents access to
the public highway. They asked that the high
concrete walls enclosing the subdivision and
cutting off their access o the subdivision road be
removed and that the road be opened to them.
Abellana’s assumption that an easement of right
of way is continuous and apparent and may be
acquired by prescription under Article 620 of the
Civil Code, is erroneous. The use of a footpath or
road may be apparent but it is not a continuous
easement because its use is at intervals and
depends upon the acts of man. It can be
exercised only if a man passes or puts his feet
over somebody else's land. Hence, a right of way
is not acquirable by prescription.
APPARENT AND NON-APPARENT EASEMENT-
Apparent easements are those which are made
known and are continually kept in view by
external signs that reveal the use and enjoyment
of the same.
Non-apparent easements are those which show
no external indication of their existence.
It is the presence of physical or visual signs that
classifies an easement into apparent or non-
apparent.
Example, a road may reveal an easement of right
of way, in which case it is an apparent easement.
But an easement of not building beyond a certain
height has no external indication of its existence,
hence it is a non-apparent easement.
POSITIVE AND NEGATIVE EASEMENT-
A positive easement is one which imposes upon
the owner of the servient estate the obligation
of allowing something to be done on his
property.
In a positive easement, the right of the owner to
exclude any person from the enjoyment of his
property, is restricted in the sense that he is
obliged to allow something to be done on his
property.
An example of a positive easement is an
easement of right of way.
A negative easement is when it prohibits the
owner of the servient estate form doing
something which he could lawfully do if the
easement did not exist. A negative easement
does not involve any restriction on the owner’s
right to exclude. Instead, the owner is simply
prohibited from doing something on his property
which he could lawfully do if the easement did
not exist.
An example is an easement not to build higher.
CHARACTERISTICS OF EASEMENTS-
Art. 617 and 618 provide for the characteristics
of an easement.
1. Quality of inherence or inseparability.
Servitudes or easements are inseparable from
the estate to which they actively or passively
belong.
An easement is a real right which falls on the
property itself, the obligation is imposed on the
property itself and not upon its owner. It cannot
be alienated or mortgaged separately from the
estate to which it forms part.
If the dominant estate is alienated, such
alienation carries with it also the easement
established in its favor even if they are not
annotated as an encumbrance in the certificate
of title.
2. Quality of indivisibility.
Easement as a right is indivisible. As such, the
partition between two or more persons of either
the servient or dominant estate does not affect
the existence of the easement. The easement
will continue in its entirety.
If the servient estate is divided, each new owner
must bear the easement up to the part
corresponding to him.
If it is the dominant estate which is divided, each
owner can exercise the whole easement over
each of the servient estates subject to the
condition that the place of easement shall not be
changed and the easement shall not be more
burdensome.
SOLID MANILA V BIO HONG
This case which was earlier discussed, where Bio
Hong closed the alley, even if an easement of
right of way was annotated on the title of the
property sold to Bio Hong, an additional issue in
this case was the contention of Solid Manila that
the alley pertaining to the easement of right of
way, was not included in the sale to Bio Hong.
The Supreme Court rejected this theory of Solid
Manila since Art. 617 of the Civil Code provides
that easements are inseparable from the estate
to which they actively or passively belong.
Servitudes are accessories to the tenements of
which they form part. Although they are
possessed of a separate juridical existence, as
mere accessories, they can not, however, be
alienated from the tenement.
MODES OF ACQUIRING EASEMENTS-
Art. 620 to 626 deal with the modes of
acquiring easement:
1. By title – this apply to all easements:
a. continuous and apparent
b. continuous and non-apparent
c. discontinuous, whether apparent or
non-apparent
2. By prescription of ten years – for continuous
and apparent easements
3. By deed of recognition (Art. 623)
4. By final judgment (Art. 623)
5. By apparent sign established by the owner of
two adjoining estates. (Art. 624)
Only continuous and apparent easements may
be acquired either by virtue of a title or by
prescription. The other kinds of easements may
be acquired by any one of the modes
enumerated in Arts. 620 to 626, but not by
prescription.
By title:
By title refers to the juridical act which gives birth
to the easement. Title here does not necessarily
mean a document. It means a juridical act or law
sufficient to create the encumbrance. Examples
of these are law, donation, testamentary
succession, or contract.
Easements are established either by law or by
the will of the owner.
Those established by law are called legal
easements.
Those established by the will of the owner are
called voluntary easements.
By prescription:
Art. 620 fixes ten years as the period of
prescription, regardless of the good faith or bad
faith of the possessor and whether or not he has
just title.
The general rules on prescription do not apply to
easements.
The only requirement for the ten year
prescriptive period to be appreciated is adverse
possession of the easement for ten years. This
means that possession should be public and
continuous. The issue of good faith does not
come into play.
The commencement of the 10-year period of
prescription will depend on whether the
easement is positive or negative.
1. If the easement is positive, the 10-year period
is counted from the day on which the owner of
the dominant estate, or the person who may
have made use of the easement, commenced to
exercise it upon the servient estate.
2. If the easement is negative, the 10-year
period is counted from the day on which the
owner of the dominant estate forbade, by an
instrument acknowledged before a notary
public, the owner of the servient estate, from
executing an act which be lawful without the
easement.

3 Kinds of openings through which light
penetrates for the enjoyment of an easement of
light:
1. in one’s own wall;
2. in the wall of one’s neighbor;
3. in a party wall.
The legal doctrine applicable in each one of these
case is different.
In one’s own wall- anyone may open anytime
In wall of another – opening must be made with
the consent of the owner
In a party wall – it is also necessary, in
accordance with article 580 of the Civil Code, to
obtain the consent of the other co-owner.
Prescription on party wall – 10 yrs; at any time
within 10 years, the owner on the other side of
the wall may close it.
ART. 622. Continuous and non-apparent
easements, and discontinuous ones, whether
apparent or not, may be acquired only by virtue
of a title.
Easements under Art. 622 may be acquired by
title. Example is by a contract, or a will.
ART. 623 applies to the easements mentioned
in Art. 622. It presupposes that there is a “title”
for the easement, that the easement was
acquired by virtue of a title, but there is no
document or proof showing its origin.
The easement may have been acquired by oral
contract of by virtue of some document which
has been lost. In such a case, the owner of the
servient estate may voluntarily execute the
deed, wherein such owner may acknowledge the
existence of the easement.
If he refuses or denies the existence of the
easement, the court, in an action for the
purpose, and upon sufficient proof, may declare
such existence.
ALTERNATE WAY OF ACQUIRING EASEMENT
THROUGH ART. 623-
The presumption is always against the existence
of an easement.
If the easement is acquired by means of
prescription, necessarily there is no document
evidencing its existence and the same may be
established only by way of a judicial proceeding
through proof of preponderance of evidence
But if the easement is one which cannot be
acquired by prescription and there is no
document evidencing the same, or such
document is no longer available, the absence of
such proof may be cured by a deed of
recognition by the owner of the servient estate.
If the owner of the servient estate denies the
existence of the easement or refuses to executed
the deed of recognition, the existence of the
easement may be established in a judicial
proceeding through preponderance of
evidence.
Art. 623 provides that the absence of a
document or proof showing the origin of an
easement which cannot be acquired by
prescription may be cured by a deed of
recognition by the owner of the servient estate
or by a final judgment.
CORTES V YU-TIBO
The house of Cortes, house No. 65, has certain
windows therein, through which it receives light
and air. The opening of the windows face the
adjacent house, No. 63 of the same street. These
windows have been in existence for more than
50 years.
Yu-Tibo was a tenant of house No. 63. He
commenced certain work aimed towards raising
the roof of the house in No. 63 in such a manner
that one-half of one of the windows in said house
No. 65 will be covered, thus depriving house No.
65 a large part of the air and light formerly
received through the window.
Cortes filed an action to restrain Yu-Tibo from
continuing with his plan.
It was the contention of Cortes that he had
acquired an easement of light and that it was a
positive easement; that therefore the period of
possession for the purposes of the acquisition of
a prescriptive title is to begin from the date on
which the enjoyment of the same commenced.
His constant and uninterrupted use of the
windows during a period of fifty-nine years
allowed him to acquire by prescription an
easement of light in favor of the house No. 65,
and as a servitude upon house No. 63.
On the other hand, it was the contention of Yu-
Tibo that the easement is negative. Therefore,
the time for the prescriptive acquisition thereof
must begin from the date on which the owner of
the dominant estate prohibited, by a formal act,
the servient estate from doing something which
would be lawful but for the existence of the
easement. Such not having been done, the
period of prescription in favor of Cortes has not
began to run.
The Supreme Court ruled that when a person
opens windows in his own building, it does not,
by such act, establish any easement, because the
property is used by its owner in the exercise of
dominion or ownership, and not as an exercise
of an easement.
The easement which ought to be established is a
negative easement, wherein the owner of the
dominant estate should forbid the owner of the
servient estate, in a formal manner, to do an act
which could be lawful were it not for the
easement.
Cortes not having executed any notarized,
formal act of opposition to the right of the owner
of house No. 63 to build higher, the running of
the prescriptive period has not commenced.
Despite his having enjoyed the light and air for
more than twenty years, his failure to execute a
notarized document, pursuant to Art. 623,
prevented him from acquiring such easement of
light.
LIWAG V. HAPPY GLEN LOOP
Marcelo, in an effort to attract buyers of
subdivision lots to Happy Glen Loop Subd.
represented to lot buyers that a water facility is
available in the subdivision. Said water facility,
stocked in a water tank on Lot 11, has been the
only source of water of the residents of the
subdivision for thirty years.
Marcelo was able to sell said Lot 11 to
Hermogenes Liwag. After the death of
Hermogenes, his wife wrote the Happy Glen
Homeowners Association demanding the
removal of the water tank from Lot 11.
The homeowners refused to comply with the
demand. They filed a case against Liwag which
went all the way up to the Supreme Court, where
one of the issues to be resolved was whether an
easement of water facility existed on Lot 11.
The Supreme Court ruled that the water facility
is an encumbrance on Lot 11 for the benefit of
the community. It is continuous and apparent,
because it is used incessantly without human
intervention, and because it is continually kept in
view by the overhead water tank, which reveals
its use to the public.
The existence of the water tank on Lot 11 was
not merely being tolerated. The easement of
water facility has been voluntarily established
either by Marcelo, or by his predecessor-in-
interest. For more than 30 years, the facility was
continuously used by the residents as their sole
source of water. The Civil Code provides that
continuous and apparent easements are
acquired either by virtue of a title or by
prescription of 10 years. It is therefore clear that
the water tank having been in existence for more
than 30 years, an easement of water facility was
acquired by the homeowners through
prescription.
UNISOURCE V CHUNG
Unisource Commercial and Development
Corporation is the registered owner of a parcel
of land covered by a TCT. The title contains a
memorandum of encumbrance of a voluntary
easement which has been carried over from the
Original Certificate of Title issued in the name of
Encarnacion S. Sandico. In the title of the
property of Sandico, it provided that:
“By order dated 08 October 1924 of the
Court of First Instance of Manila, it is declared
that Francisco Hidalgo y Magnifico has
the right to open doors in the course of his lot”
As Sandico's property was transferred to several
owners, the memorandum of encumbrance of a
voluntary easement in favor of Francisco M.
Hidalgo was consistently annotated at the back
of every title covering Sandico's property, up to
the time that a TCT was issued in favor of
Unisource.
Hidalgo’s property, on the other hand, was
eventually transferred to Chung,
Unisource filed a petition for the cancellation of
the voluntary easement of right of way and the
petition was granted by the trial court, after it
found that the dominant estate has no more use
for the easement since it has another adequate
outlet to a public road.
As defined, an easement is a real right on
another's property, corporeal and immovable,
whereby the owner of the latter must refrain
from doing or allowing somebody else to do or
something to be done on his property, for the
benefit of another person or tenement.
Easements are established either by law or by
the will of the owner. The former are called legal,
and the latter, voluntary easements.
In this case, Unisource itself admitted that a
voluntary easement of right of way exists in favor
Chung. Having made such an admission, it
cannot now claim that what exists is a legal
easement and that the same should be cancelled
since the dominant estate is not anymore an
enclosed estate as it has an adequate access to a
public road.
The opening of an adequate outlet to a highway
can extinguish only legal or compulsory
easements, not voluntary easements like the
one in this particular case. A voluntary
easement of right of way, like any other contract,
could be extinguished only by mutual agreement
or by renunciation of the owner of the dominant
estate. A voluntary easement of right of way,
like any other contract, is generally effective
between the parties, their heirs and assigns,
except in case where the rights and obligations
arising from the contract are not transmissible by
their nature, or by stipulation or by provision of
law.
It was also held by the Supreme Court in this case
that although the easement does not appear in
the title of Chung, the easement subsists. It is
settled that the registration of the dominant
estate under the Torrens system without the
annotation of the voluntary easement in its
favor does not extinguish the easement
It is the registration of the servient estate as
free, that is, without the annotation of the
voluntary easement, which extinguishes the
easement. If the title of the owner of the
servient estate does not carry the annotation of
the voluntary easement, then the easement is
extinguished.
But if the existence of the easement is known to
the transferee of the servient estate, such
knowledge is equivalent to registration.
(Mendoza v Rosel)
Finally, the mere fact that Chung subdivided the
property into different owners does not
extinguish the easement. Art. 618 provides that
easements are indivisible. 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 which corresponds to
him.
If it is the dominant estate that 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.
EASEMENT’S EXISTENCE KNOWN TO OWNER OF
SERVIENT ESTATE EQUIVALENT TO
REGISTRATION
MENDOZA V ROSEL
Mendoza was sued by Rosel, asking for an
injunction to forbid Mendoza from closing an
easement of right of way relative to the land of
Rosel.
The lots belonging to Rosel are a part of a larger
parcel of city land which originally pertained to
the heirs of Pedro Rodriguez. This large parcel
had been subdivided into small lots and sold to
various persons, Rosel being among them.
In subdividing said tract of land, the original
owners had opened an alley which is the only
means of access from the small lots to the main
street.
Mendoza insists that inasmuch as their transfer
certificates of title do not mention any lien or
encumbrance on their lots, they are purchasers
in good faith and for value, and as such have the
right to demand from Rosel some payment for
the use of the alley. However, it was found that
when Rosel acquired the two lots which form the
alley, they knew that said lots could serve no
other purpose than as an alley. The existence of
the easement of right of way was therefore
known to Mendoza, who must respect the same,
in spite of the fact that their transfer certificates
of title do not mention any burden or easement.
Knowledge is as binding as registration.
Art. 624 provides for acquisition of easement by
title through the operation of law.
Article 624 of the Civil Code reads:
x x x. The existence of an apparent sign of
easement between two 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
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. This provision
shall also apply’ in case of the division of a thing
owned in common by two or more persons.
This Article contemplates of a situation where an
estate belonged previously to one person. If one
of the estates was alienated, resulting in the
division of the property, but prior to the division,
an apparent sign of an easement was present, an
easement is created by way of title upon the
division of the two estates, unless at the time of
the division of the ownership, the contrary should
be provided in the title of conveyance; or the
apparent sign should be removed before the
execution of the deed.
ALIENATION BY SAME OWNER OF TWO
ESTATES WITH SIGN OF EXISTENCE OF
SERVITUDE
For the acquisition of easement by title under
Art. 624, the following should concur:
1. That there exists an apparent sign of servitude
between the two estates
2. That at the time of the establishment of such
sign, the ownership of the two estates resided in
one person
3. That the sign of the easement was established
by the owner of both estates;
4. That the ownership over the two estates is
later divided, either by alienation or partition
5. That at the time of the division of ownership,
nothing is stated in the document that is
contrary to the easement, nor is the sign of the
easement removed before the execution of the
document.
GARGATOS V TAN YANON
Sanz was the owner of a parcel of land which he
subdivided into several lots. One lot, which had
a house thereon, was sold to Tan Yanon,
another, with a warehouse and a small building
thereon, was sold to Gargantos.
The house purchased by Yanon’s house had
doors and windows over-looking the parcel of
land acquired by Gargantos.
Sometime after the purchase by Gargantos, he
asked for a permit from the Municipal Council to
construct a combined residential house and
warehouse on his lot.
Tan Yanon opposed approval of this application
and filed an action to restrain Gargantos from
constructing a building that would prevent him
from receiving light and enjoying the view
through the window of his house. He will
withdraw his objection if the building is erected
at a distance of not less than three meters from
the boundary line between their lots.
Has Tan Yanon acquired an easement of light and
view against the property of Gargantos?
The Supreme Court ruled in the affirmative,
pursuant to Art. 624 of the Civil Code.
The two estates in this case, that now owned by
Gargantos, and that owned by Tan Yanon, were
formerly owned by just one person, Sanz. It was
Sanz who introduced improvements on both
properties. The windows and doors in the house
of Tan Yanon were in existence when Tan Yanon
purchased the house and lot from Sanz. The
deed sale did not provide that the easement of
light and view would not be established.
This then is the case covered by Article 624 which
provides that the existence of an apparent sign
of easement between two estates, established
by the proprietor of both, shall be considered, if
one of them is alienated, as a title so that the
easement will continue actively and passively,
unless at the time the ownership of the two
estate is divided, the contrary is stated in the
deed of alienation of either of them, or the sign
is made to disappear before the instrument is
executed.
The existence of the doors and windows on the
northeastern side of Tan Yanon, is equivalent to
a title, for the visible and permanent sign of an
easement is the title that characterizes its
existence. Thus, by reason of his easement
Gargatos cannot construct on his land any
building unless he erects it at a distance of not
less than three meters from the boundary line
separating the two estates.
AMOR V FLORENTINO
It appears that over 50 years ago, Maria
Florentino owned a house and a warehouse. The
house had, on the north side, three windows on
the upper story, and a fourth one on the ground
floor. Through these windows the house receives
light and air from the lot where the warehouse
stands.
Maria Florentino made a will, devising the house
and the land on which it is situated to her
nephew Gabriel Florentino.
In said will, the Maria also devised the
warehouse and the lot where it is situated to
Maria Encarnacion Florentino. Upon the death of
the testatrix, nothing was said or done by the
devisees in regard to the windows in question.
Maria Encarnacion Florentino sold her lot and
the warehouse thereon to Severo Amor, the
deed of sale stating that the vendor had
inherited the property from her aunt, Maria
Florentino.
After the sale, Amor destroyed the old
warehouse and started to build a two-story
house. The Florentinos filed an action to prohibit
Amor from building higher than the original
structure and from executing any work which
would shut off the light and air that had for many
years been received through the four windows
referred to. The lower court denied the petition.
can be (1) a deed of recognition by the owner of
the servient estate; (2) a final judgment; and (3)
an apparent sign between two estates,
established by the owner of both.
When Amor bought this lot from the original
coheir, the windows on Florentino’s house were
visible. It was Amor's duty to inquire into the
significance of those windows. Having failed to
do so, he cannot now question the easement
against the property which he purchased.
Amor was not an innocent purchaser, as he was
in duty bound to inquire into the significance of
the windows.
Justice and public policy are on the side of the
Florentinos.
RIGHTS AND OBLIGATIONS OF THE OWNERS OF
THE DOMINANT AND SERVIENT ESTATES
Rights of the Dominant Owner
1. To use the easement
2. To make on the servient estate all works
necessary for the use and preservation of the
servitude
3. To renounce the easement if he desires to
exempt himself from contribution to necessary
expenses
4. To ask for mandatory injunction to prevent
impairment of his use of the easement.

The Supreme Court held that the existence of the

RIGHTS AND OBLIGATIONS OF THE OWNERS OF
apparent sign, to wit, the four windows under
THE DOMINANT AND SERVIENT ESTATES
consideration, had the same character and effect
as a title of acquisition of the easement of light
Right of the Dominant Owner to make
and view by Florentino upon the death of the
necessary works:
original owner.
The right granted by Art. 627 is subject to the
following conditions:
Upon the establishment of that easement, the
1. The works, which shall be at his expense, are
concomitant easement was also constituted on
necessary for the use and preservation of the
the warehouse and its lot, Maria Encarnacion
servitude;
Florentino, not having objected to the existence
2. The works should not alter or render the
of the windows.
servitude more burdensome;
3. The dominant owner, before making the
The existence of the apparent sign is equivalent
works, must notify the servient owner, and
to a title, when nothing to the contrary is said or
4. They shall be done at the most convenient
done by the two owners. There is an implied
time and manner so as to cause the least
contract created between them that the
inconvenience to the servient.
easements in question should be constituted.
RIGHTS AND OBLIGATIONS OF THE OWNERS OF
Easements are established by law or by will of THE DOMINANT AND SERVIENT ESTATES
the owners. Acquisition of easements is can be Obligations of the Dominant Owner
by title. What acts take the place of title? They 1. He can only exercise rights necessary for use
of the easement. interest of Osorio.
2. He cannot use the easement except for the
benefit of the immovable originally During such time, the hacienda owners could not
contemplated. furnish sufficient cane for milling so North
3. He cannot make any works or construct Negros entered into milling contracts with other
anything which is not necessary for the use and owners in order to obtain sufficient sugarcane to
preservation of the servitude. sustain the central.
4. He cannot alter the easement or render it The hacienda owners filed a complaint, alleging
more burdensome. that the easement of way, was only for the
5. He shall notify the servient owner of works transport of the sugarcane of the landowners
necessary for the use and preservation of the where the railroad passed. North Negros
servitude. insisted it had the right to transport the
6. He must choose the most convenient time sugarcane harvested by their other hacienda
and manner in making the necessary works as to owners.
cause the least inconvenience to the servient
Does North Negros have the right to transport
owner.
sugarcane on the tracks owned by the hacienda
7. He must contribute to the necessary expenses
owners?
if there are several dominant estates in
proportion to the benefit derived from the
Yes because the easement was created for the
works.
benefit of Osorio. The cane of the hacienda
RIGHTS AND OBLIGATIONS OF THE OWNERS OF owners was to be transported to the central by
THE DOMINANT AND SERVIENT ESTATES means of wagons passing through the railroad.
But since the easement was created for the
Rights of the Servient Owner benefit of the central, it may cause wagons to
1. To retain the ownership of the portion of the pass through it as many times as it may deem fit,
estate on which the easement is established. according to the needs of the central.
2. To make use of the easement, unless there is If the hacienda owners do not produce sufficient
an agreement to the contrary. cane to cover the capacity of the central, it would
3. To change the place or manner of the use of be unjust to prohibit the central form obtaining
the easement, provided it be equally convenient. another source of cane to maintain its business,
especially because in the milling contract
RIGHTS AND OBLIGATIONS OF THE OWNERS OF
between the parties, there was no prohibition
THE DOMINANT AND SERVIENT ESTATES
from entering into milling contracts with other
planters which would allow the central to cover
Obligations of the Servient Owner
its capacity.
1. He cannot impair the use of the easement.
2. He must contribute to the necessary expenses Does the transport of sugar cane from other
in case he uses the easement, unless there is an planters alter the easement and make it more
agreement to the contrary. burdensome?

VALDERRAMA V NORTH NEGROS SUGAR

The hacienda owners insist that by extending use
CENTRAL
of the road to accommodate the other planters.
Hacienda owners entered into a milling contract
It would occupy greater area of land of the
with Osorio whereby Osorio agreed to install a
servient estate. Such an act will alter the
sugar central for grinding and milling sugarcane
agreement and make it more burdensome.
grown by the hacienda owners, who bound
themselves to furnish the central with all the
The Supreme Court stated that the contention is
sugarcane they will produce in their haciendas.
not correct. The transport will not make the
easement more burdensome, whether the
Under the contract, the hacienda owners
tractors traverse the railroad 10, 20 or 30 times
provided land to Osorio for the construction of
a day. The railroad will continue to occupy the
a railroad for the transport of sugarcane. Said
same area.
easement was established without any kind of
restriction.
The dominant owner alone has the obligation to
Later on, North Negros acquired the rights and
shoulder the expenses of the necessary works. owners.
The servient estate will be obliged to contribute In a real easement, there should two distinct
only if he will make use of the easement in any immovables belonging to different owners. If
manner. there is a merger in the same person of the
ownership of the dominant and servient estate,
the easement is extinguished.
Rights of the Servient Owner to change place or
But when a person acquires only a partial
manner of easement provided the following
interest of the servient estate, it cannot be held
requisites are present:
that there has been a merger.

1. The place and manner has becomes very

A personal easement established for the benefit
inconvenient to him or prevents him from
of a particular person is also extinguished if the
making important works thereo;
holder of the easement acquires ownership of
2. He offers another place or manner equally
the servient estate. But if the personal easement
convenient;
is established for the benefit of a community, the
3. No injury is caused by the change to the
fact that one of the members of the community
dominant owner or to whoever might have a
acquires ownership of the servient estate will
right to the use of the easement.
not result in a genuine merger that will terminate
The owner of the servient estate retains the personal easement. (Solid Manila v Bio Hong)
ownership of the portion on which the easement
2. Non-user –There has to be an easement which
is established, and may use the same in such a
existed and which was later abandoned. For it to
manner as not to effect the exercise of the
be abandoned, the non user must have lasted for
easement.
a period of 10 years.
He may change the place of the easement or the
If the easement is discontinuous, the 10 year
manner of its use provided the no injury is
period is computed from the day the easement
caused to the owner of the dominant estate and
was not used.
that the expenses will be incurred by the owner
For a continuous easement, the 10-year period is
of the servient estate.
counted from the day an act contrary to the
easement takes place. (Ongsiako case)
The holder of the easement is given an
incorporeal interest on the property but grants
3. Impossibility of use under the following
no title thereto.
situations:
He shall have the right to make any w.orks on the
a. if the circumstances which cause the
servient estate if the same is necessary for the
impossibility of use shall be irreparable.
use and preservation of the servitude provided it
b. if the circumstances which cause the
is done at his expense and it does not alter the
impossibility of use are reparable, the easement
servitude or render it more burdensome
is likewise extinguished if the period of extinctive
prescription by non-user has already lapsed.
MODES OF EXTINGUISHMENT OF EASEMENT:
1. By merger
The circumstance which renders the use of the
2. By non-user for 10 years
easement impossible must not be in the nature
3. By impossibility of use
of a fortuitous event. If it is due to a fortuitous
4. By expiration of the term or fulfillment of the
event, the easement is merely suspended.
resolutory condition
For non-use to extinguish easement, the same
5. By renunciation
must be due to voluntary abstention by the
6. By redemption
dominant owner.

1. Merger
4. Renunciation

An easement can exist only when the servient

The renunciation of the easement by the owner
and dominant estates belong to different
of the dominant estate must be specific, clear
and express. A tacit renunciation will not be
sufficient.
5. Redemption
This refers to the release of the servient estate
from the servitude upon the agreement of the
owners of both estates and upon payment by the
owner of the servient estate of the
corresponding consideration to the owner of the
dominant estate.
LEGAL EASEMENTS
Art. 634 provides that legal easements are
easements imposed by law and which have for
their object either public use or the interest of
private persons, and thereby become a
continuing property right.
Kinds of legal easements:
1. Public legal easements are those for public or
communal use
2. Private legal easements are those for the
interest of private persons for private use. It
includes those relating to: waters; right of way;
party wall; light and view; drainage;
intermediate distances; against nuisance and
later and subjacent support.
Public legal easements are governed primarily by
the special laws and regulations relating thereto,
and by Arts. 634 to 687 of the Civil Code.
Private legal easements are governed:
a. primarily by the agreement of the interested
parties provided it is not prohibited by law or
injurious to a third person;
b. in the absence of agreement, by the
provisions of general or local laws and
ordinances for the general welfare; and
c. in default of a) and b), by Art. 634 to 687 of
the Civil Code.
The provisions of the particular law itself,
imposing the easement, determine whether the
legal easement is public or private.
The following are private legal easements:
1. easement of right of way (Art. 649-657)
2. easement relating to waters (Art. 637-648)
3. easement of party walls (Art. 658-666)
4. easement of light and view (Art. 667-673)
5. easement of drainage of buildings (Art. 674-
676)
6. easement of distances (Art. 677-681)
7. easement of nuisance (Art. 682-683)
8. easement of lateral and subjacent support
(Art. 684-687)
Easement relating to waters:
1. Easement of drainage of waters
2. Easement for public use
3. Easement for drawing waters
4. Easement of abutment of dam
5. Easement of aqueduct
Easement of drainage of waters exists when,
based on the physical condition of two estates,
water descend naturally and without the
intervention of man from a higher estate to a
lower estate.
In this kind of easement, the lower estate is
obliged to receive the waters which naturally
and without the intervention of man flow from
the higher estates, as well as the stones or earth
which they carry with them. Such being the case,
the owner of the lower estate may not construct
works that will block the flow of water, unless he
provides an alternate method of drainage. (Art.
637)
The owner of the higher estate shall also have
the right to resort to artificial means for the
purpose of draining waters from higher to lower
estates but in the exercise of such rights, is
obliged:
1.) to select the routes and methods of drainage
that will cause the minimum drainage to the
lower lands; and
2.) to pay just compensation to the owner of the
lower estate. (Art. 46, Water Code of the
Philippines)

Since this type of easement does not depend
upon acts of man, this easement is classified as
continuous and is subject to extinction by non-
user for a period of ten years computed from the
day on which an act contrary to the easement
took place, such as building of dikes.
Easement of public use
The banks of rivers and streams and the shores
of the seas and lakes throughout their entire
length and within a zone of three meters in
urban areas, 20 meters in agricultural areas, and
40 meters in forest areas, along their margins,
are subject to the easement of public use in the
interest of recreation, navigation, floatage,
fishing and salvage.
Easement of drawing waters:
The compulsory easement for drawing waters or
for watering animals can be imposed only for
reasons of public use in favor of a town or village,
after payment of proper indemnity. This kind of
easement, upon its establishment, carries with it
the easement of right of way.
In other words, the owner of the servient estate
shall also have the obligation to allow passage to
persons and animals to the place where the
easement is to be used. As such, the indemnity
to be paid for the easement for drawing waters
or for watering animals must include indemnity
for the easement of right of way.
Easement of abutment of dam
Whenever it is necessary to build a dam for the
purpose of diverting or taking waters from a river
or brook, or for the use of any other continuous
or discontinuous stream, and the person who is
to construct it is not the owner of the banks or of
the land which must support it, he may establish
an easement of abutment of dam only upon
payment of the proper indemnity to the owner
of the affected estates.
Easement of aqueduct
This refers to a situation where the water in a
particular estate is capable of disposing waters
therein. In such a situation, the owner of the
estate can make it flow through intervening
estates but the following requisites must concur:
1. That he who wants to establish the easement
of aqueduct must be able to prove that he can
dispose of the water;
2. He must also prove that it is sufficient for the
use for which it is intended;
3. The proposed right of way is the most
convenient and the least onerous to third
persons affected;
4. He must indemnify the owners of the servient
estates, as well as the owners of the lower
estates upon which the waters may filter or
descend.
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.
EASEMENT OF RIGHT OF WAY - An easement of
right of way is demanded by necessity, to enable
owners of isolated estates to make full use of
their property, which lack access to public roads.
Manner of acquisition of an easement of right of
way -
An easement of right of way may be acquired
ONLY by virtue of a title, either
voluntarily (Art. 688-693) or compulsorily (Art.
649-657)
A voluntary easement of right of way is
constituted by covenant. In such a situation, it is
not required that the dominant estate be
isolated and without an adequate outlet to a
public highway.
But if an estate is isolated, the grant of easement
of right of way is compulsory and hence, legally
demandable, subject to indemnity and must be
with the concurrence of the conditions
enumerated in Art. 649 and 650.
Requisites for the grant of a compulsory
easement of right of way:
1. That the dominant estate is surrounded by
other immovables and has no adequate outlet to
a public highway.
2. After payment of proper indemnity
3. That the isolation was not due to acts of the
proprietor of the dominant estate
4. That the right of way claimed is at the point
least prejudicial to the servient estate; and
insofar as consistent with this rule, where the
distance from the dominant estate to a public
highway may be the shortest.
The burden of proving the existence of the pre-
requisites to claim a compulsory right of way lies
in the owner of the dominant estate.
Isolation of the dominant estate
The estate need not be totally landlocked, the
isolation being dependent on the particular need
of the dominant estate.
What is important is whether or not a right of
way is necessary to fill a reasonable need
therefor by the owner.
If the passageway consists of an inaccessible
slope, it is as if there is no passageway that can
sufficiently fulfill the dominant owner’s
necessities.
Also, while an existing right of way may have
proved adequate at the start, the dominant
owner’s need may have changed since then, for
which Art. 651 allows adjustments to its width.
Isolation of the dominant estate - the estate
need not be totally landlocked, the isolation
being dependent on the particular need of the
dominant estate.
COSTABELLA V CA
Costabella owns a real property on which it had
constructed a resort. Aurora and her group are
the owners of adjoining properties.
Before Costabella began the construction of its
resort, the group of Aurora passed through the
Costabella property in going to the provincial
road.
When it began the construction of its hotel,
Costabella closed the route used by Aurora but it
opened another route across its property. But as
the construction progressed, even the
alternative passageway was closed and
prevented Aurora’s group from traversing
through the Costabella property.
Because of the closure, Aurora filed an action for
injunction against Costabella, assailing the
closure of the original passageway, which Aurora
claimed was an “ancient road right of way" that
had been existing before World War II and since
then had been used by them, the community,
and the general public, either as pedestrians or
by means of vehicles, in going to and coming
from Lapu-Lapu City and other parts of the
country. By closing the road, they were
deprived access to their properties.
It was also alleged that Costabella constructed a
dike on the beach fronting the latter's property
without the necessary permit, obstructing the
passage of the residents and local fishermen,
and trapping debris on the beach, the
accumulation of which prevented them from
using their properties for the purpose for which
they had acquired them.
Costabella denied the existence of an ancient
road through its property. It averred that it, and
its predecessors-in-interest, had permitted the
temporary, intermittent, and gratuitous use of,
or passage through, its property by Aurora and
others by mere tolerance and purely as an act of
neighborliness.
It justified the walling in of its property in view of
the need to insure the safety and security of its
hotel and beach resort, and for the protection of
the privacy and convenience of its hotel patrons
and guests. Costabella also alleged that the
group of Aurora were not entirely dependent on
the subject passageway as they had another
existing and adequate access to the public road
through other properties.
Concept of an easement of right of way- , there
must be a real necessity therefor, and not mere
convenience for the dominant estate. Hence, if
there is an existing outlet, otherwise adequate,
to the highway, the "dominant" estate can not
demand a right of way, although the same may
not be convenient.
The question of when a particular passage may
be said to be "adequate" depends on the
circumstances of each case.
The isolation of the dominant estate is also
dependent on the particular need of the
dominant owner, and the estate itself need not
be totally landlocked. What is important to
consider is whether or not a right of way is
necessary to fill a reasonable need therefor by
the owner. Thus, if the passageway consists of
an "inaccessible slope or precipice," it is as if
there is no passageway, that is, one that can
sufficiently fulfill the dominant owner's
necessities, although by the existence of that
passageway the property can not be truly said
that the property is isolated. So also, while an
existing right of way may have proved adequate
at the start, the dominant owner's need may
have changed since then, for which Article 651 of
the Code allows adjustments as to width.
But while a right of way is legally demandable,
the owner of the dominant estate is not at liberty
to impose one based on arbitrary choice. Under
Article 650 of the Code, it shall be established
upon two criteria: (1) at the point least
prejudicial to the servient state; and (2) where
the distance to a public highway may be the
shortest. But "least prejudice" prevails over
"shortest distance." Yet, each case must be
weighed according to its individual merits, and
judged according to the sound discretion of the
court. "The court is not bound to establish what
is the shortest; a longer way may be established
to avoid injury to the servient tenement, such as
when there are constructions or walls which can
be avoided by a roundabout way, or to secure
the interest of the dominant owner, such as
when the shortest distance would place the way
on a dangerous decline.“
In view of the circumstances in this case, the
complaint was dismissed.
ISOLATION OF THE DOMINANT ESTATE
An owner cannot, by his own act, cause the
isolation of his property and then claim an
easement of way through an adjacent estate.
And the owner of the dominant estate is bound
by the act of his predecessor-in-interest which
caused the isolation of the property, like by
erecting a stonewall on his lot at the point where
such passageway began. In such a situation, a
compulsory right of way in an alternate location
cannot be granted.
FRANCISCO V IAC
Lot 860 was owned by Corneli and Frisca. It had
a frontage along Parada Road. Adjoining Lot 860
was Lot 226, owned by Eusebio Francisco. This
lot also had a frontage along Parada Road.
The owners of Lot 860 subdivided the property
into four, designated as Lots A, B, C and D. The
owners, however, overlooked the fact that, by
reason of the subdivision, Lot B came to include
the entire frontage of along Parada Road,
effectively isolating from said road Lots A, C and
D.
Lot A was eventually sold to Ramos. After having
set up a piggery on his property, Ramos had his
lawyer write to Francisco, owner of the adjoining
lot, to ask for a right of way through Francisco’s
property. Ramos not having agreed to
Francisco’s proposal to swap one meter of
Francisco’s lot to three meters of Ramos’ lot,
which was the custom in the locality, the
negotiation failed.
Ramos was able to obtain, instead, an easement
through Lot B but Ramos inexplicably put up a
ten-foot high concrete wall on his lot, thereby
closing the right of way granted to him across Lot
B. It seems that what Ramos wanted was to have
a right of passage through Francisco's land, as it
was more convenient to him.
Francisco reacted by replacing the barbed-wire
fence on his lot along Parada Road with a stone
wall.
Shortly thereafter, Francisco was served with
summons and a copy of a complaint for an
easement of right of way. After trial, the lower
court granted the road right of way.
The Supreme Court observed that Ramos was
granted access to the public road through Lot B
but he gave up that right of access by walling off
his property from the passageway, which was
wide enough to accommodate his truck. If, at
the time of the negotiation with Ramos, lot B
could no longer be used, it was because he
himself have closed it off by erecting a stone wall
on his lot.
An owner cannot by his own act, isolate his
property from a public highway and then claim
an easement of way through an adjacent estate.
The third of the cited requisites under Art. 649:
that the claimant of a right of way has not
himself procured the isolation of his property,
had not been met.
Mere inconvenience attending the use of a then
existing right of way does not justify a claim for a
similar easement in an alternative location.
All the four requisites prescribed in Articles 649
and 650 must be established in order to warrant
the creation of a legal or compulsory easement
of way.
Inadequacy of the outlet to the public highway
The convenience of the dominant estate has
never been the gauge for the grant of
compulsory right of way. The true standard for
the grant is adequacy.
Hence, when there is already an existing
adequate outlet from the dominant estate to the
public highway, even if that outlet is
inconvenient, the need to open another
easement will be considered unjustified.
Adequacy will depend upon the circumstances of
each case.
In order to justify the imposition of the servitude
of right of way, there must be a real, not a
fictitious or artificial necessity for it. Mere
convenience of the dominant estate is not what
is required by law as the basis for setting up a
compulsory easement. Even in the face of a
necessity, if it can be satisfied without imposing
the servitude, the same should not be imposed.
In Floro v Llenado, the Court refused to impose
a right of way over petitioner’s property,
although private respondents’ alternative route
was inconvenient because he had to traverse
several ricelands and rice paddies belonging to
different persons, not to mention that said
passage is impassable during the rainy season.
Convenience was what motivated Llenando to
abandon the Ipapo access road development
and pursue an access road through the Floro
estate. He was stacking the cards in his favor to
the unnecessary detriment of his neighbor. The
court refused to countenance his behavior.
In Ramos v Gatchalian, the court denied Ramos
access to Sucat Road through the Gatchalian
Avenue in view of the fact that Ramos had a road
right of way which was provided by the
Subdivision where he resides, even if the same
was still undeveloped and inconvenient to
Ramos. He should demand from the his
subdivision owner to improvement his road right
of way because it was from said subdivision that
he acquired his lot and not from Gatchalian
Realty.
To allow Ramos access because of greater ease
in going to and coming from the main
thoroughfare is to completely ignore what
jurisprudence has consistently maintained that
"mere convenience for the dominant estate is
not enough to serve as its basis for the grant of a
road right of way.”
AT THE POINT LEAST PREJUDICIAL
Whenever there are several tenements
surrounding the dominant estate, the right of
way must be established on the tenement where
the distance to the public road or highway is
shortest and where the least damage would be
caused.
If these two criteria do not concur in a single
tenement, the least prejudicial criterion must
prevail over the shortest distance criterion.
CALIMOSO V ROULLO
In Roullo’s Complaint for the grant of an
Easement of Right of Way, he alleged that his lot
is isolated by several surrounding estates,
including the land owned by Calimoso, He needs
a right of way in order to have access to a public
road; and that the shortest and most convenient
access to the nearest public road, i.e., Fajardo
Subdivision Road, passes through the Calimoso
property.
Calimoso objected to the establishment of the
easement because it would cause substantial
damage to the two houses already standing on
their property. They pointed out that Roullo has
other right-of-way alternatives.
The RTC ruled on favor of Roullo and ordered
Calimosoto provide an easement measuring 14
meters in length and 3 meters in width for
Roullo. It also ordered Roullo to pay Calimoso
proper indemnity in the amount of Php1,500.00
per square meter.
Calimoso appealed the RTC decision.
The CA held that all the requisites for the
establishment of a legal or compulsory easement
of right-of-way were present in this case:
first, the lot is surrounded by estates owned by
different individuals and Roullo has no access to
any existing public road;
second, Roullo offered to compensate Calimoso
for the establishment of the right-of-way
through their property;
third, that the isolation of the subject lot was not
caused by Roullo as he purchased the lot without
any adequate ingress or egress to a public
highway; and,
fourth, given the available options for the right-
of-way, the route that passes through Calimoso’s
lot requires the shortest distance to a public road
and can be established at a point least prejudicial
to the petitioners' property.
Calimoso appealed to the SC, asserting that while
the establishment of the easement through their
lot provided for the shortest route, the adjudged
right-of-way would cause severe damage not
only to the nipa hut situated at the corner of the
petitioners' lot, but also to the bedroom portion
of the other concrete house that stood on the
property. The SC disagreed that all the
requisites for the valid establishment of an
easement of right-of-way are present in this
case.
The SC stated that it is undisputed that Roullo’s Payment of indemnity
lot is surrounded by several estates and has no
The Civil Code categorically provides for the
access to a public road.
measure by which proper indemnity may be
Three options were then available to Roullo for
computed: value of the land occupied plus the
the demanded right-of-way: the first option is to
amount of the damage caused to the servient
traverse directly through Calimoso’s property,
estate.
which route has an approximate distance of
The Supreme Court did not consider it unfair to
fourteen (14) meters from the lot of Roullo; the
require the dominant estate to pay for indemnity
second option is to pass through two vacant lots,
even if it is perceived to be tantamount to buying
which route has an approximate distance of
the property without them being issued titles.
forty-three (43) meters to the Diversion Road;
Payment for the value of the land for permanent
and the third option is to construct a concrete
use of the easement does not mean an
bridge over Sipac Creek and ask for a right-of-
alienation of the land. Unlike the purchase of a
way on the property of a certain Mr. Basa in
property, should the right of way no longer be
order to reach the Fajardo Subdivision Road.
necessary, the value of the property received by
Among the right-of-way alternatives, the CA
the servient estate by way of indemnity will be
adopted the first option, because it offered the
returned in full to the dominant estate.
shortest distance to the Road and the right-of-
way would only affect the "nipa hut" standing on PAYMENT OF INDEMNITY- WOODRIDGE V ARB
Calimoso’s property. The CA held that this was The lot of Woodridge School was bounded in the
more practical, economical, and less west by a road of ARB’s Soldier Hills Subd. which
burdensome to the parties. leads to a public highway. There is no existing
adequate outlet to and from Woodridge except
Article 650 of the Civil Code provides that the
through the said road which was being used by
easement of right-of-way shall be established at
the general public. ARB fenced the perimeter of
the point least prejudicial to the servient estate,
the road fronting the properties of Woodridge,
and, where the distance from the dominant
thus, effectively cutting off the latter's access to
estate to a public highway may be the shortest.
and from the public highway.
If these two criteria do not concur in a single
tenement, the least prejudice criterion must
Woodridge filed a complaint to enjoin ARB from
prevail over the shortest distance criterion.
depriving them of the use of the subject
subdivision road. The trial court rendered
In this case, the establishment of a right-of-way
judgment in favor of Woodridge but this was
through the Calimoso’s lot would cause the
reversed by the CA, asserting that the road is
destruction of the wire fence and a house on
private property; hence, ARB can exclude
Calimoso’s property.
Woodridge from the use thereof.
Although this right-of-way has the shortest
distance to a public road, it is not the least
Nevertheless, it declared that a compulsory right
prejudicial considering the destruction pointed
of way exists in favor of Woodridge and awarded
out, and that an option to traverse two vacant
P500,000.00 indemnity to ARB for the use of the
lots without causing any damage, albeit longer,
road lot.
is available.
When the case reached the Supreme Court, it
Mere convenience for the dominant estate is not affirmed the grant of right of way. With respect
what is required by law and that a longer way to the indemnity awarded, the Court said in the
may be adopted to avoid injury to the servient case of a legal easement, Article 649 of the Civil
estate, such as when there are constructions or Code prescribes the parameters by which the
walls which can be avoided by a roundabout proper indemnity may be fixed. Since the
way. intention of Woodridge is to establish a
permanent passage, the second paragraph of
WHEREFORE, the complaint for easement of Article 649 of the Civil Code particularly applies:
right of way was dismissed.
Art. 649 xxx
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. Xxx
The SC held that the CA was wrong in arbitrarily
awarding indemnity for the use of the road lot.
The Civil Code categorically provides for the
measure by which the proper indemnity may be
computed: value of the land occupied plus the
amount of the damage caused to the servient
estate.
The Supreme Court held that to award the
indemnity using factors different from that given
by the law is a complete disregard of these clear
statutory provisions and is evidently arbitrary.
This the Court cannot countenance. The Civil
Code has clearly laid down the parameters and
we cannot depart from them.
Since the metes and bounds of the property
covered by the easement were not yet defined,
the Court remanded the case to the trial court
for the determination of the same and of the
corresponding indemnity, hinting that the trial
court may take into consideration the fact that
the affected road lot is being used by the general
public in mitigating the amount of damage that
the servient estate is entitled to.
Width of the easement
The width of the easement of right of way shall
be that which is sufficient for the needs of the
dominant estate, and may accordingly be
changed from time to time.
This means that it is the needs of the dominant
property which will ultimately determine the
width of the passage. And these needs may vary
from time to time.
WIDTH OF THE EASEMENT: DE GUZMAN V
FILINVEST
In this case, the Supreme Court noted that: (1)
the servient estates are both subdivisions; (2)
the easements of right of way consist of existing
and developed road/roads; (3) the right of way
would be used in common by the dominant
estates and the residents of the subdivisions;
and (4) the intention of de Guzman and the other
petitioners is to establish a permanent passage
through the subdivision roads of the servient
estate.
In resolving the amount of indemnity to be paid
by the de Guzman group, the Supreme Court was
mindful that it is the needs of the dominant
estate which ultimately determines the width of
the passage, as provided for in Article 651, which
provides that “the width of the easement of right
of way shall be that which is sufficient for the
needs of the dominant estate, and may
accordingly be changed from time to time.”
The right of way constituting the easement in
this case consists of existing and developed
network of roads. This means that in the
construction of the road by Filinvest, the needs
of de Guzman was not taken into consideration
precisely because they were constructed prior to
the grant of the right of way.
It was established during the trial that the width
of the affected roads constructed by Filinvest is
10 meters. Multiplied by the distance of 2,350
meters, the total area to be indemnified is
23,500 square meters and at a price of P1,620.00
per square meter, de Guzman and his group
must pay Filinvest the amount of P38,070,000.00
for the value of the land.
Under these circumstances, the Court found it
iniquitous to compute the proper indemnity
based on the 10-meter width of the existing
roads because it is the needs of the dominant
estate which determines the width of the
passage. And per their complaint, De Guzman
was simply asking for adequate vehicular and
other similar access to the highway.
Thus, the 10-meter width of the affected road
lots is unnecessary and inordinate for the
intended use of the easement. At most, a 3-
meter wide right of way can already sufficiently
meet petitioners' need for vehicular access. It
would thus be unfair to assess indemnity based
on the 10-meter road width when a three-meter
width can already sufficiently answer the needs
of the dominant estate.
Therefore bearing in mind Article 651, the Court
finds proper a road width of 3 meters in
computing the proper indemnity. Thus,
multiplying the road length of 2,350 meters by a
road width of 3 meters, the total area to be
indemnified is 7,050 square meters. At a value of
P1,620.00 per square meter, the total value of
the land to form part of the indemnity amounts
to P11,421,000.00.

De Guzman argues that it is unfair to require
them to pay the value of the affected road lots
since the same is tantamount to buying the
property without them being issued titles and
not having the right to exercise dominion over it.
The Supreme Court said that the argument is
untenable. Payment of the value of the land for
permanent use of the easement does not mean
an alienation of the land occupied. In fact, should
the right of way no longer be necessary because
the owner of the dominant estate has joined it to
another abutting on a public highway, and the
servient estate demands that the easement be
extinguished, the value of the property received
by the servient estate by way of indemnity shall
be returned in full to the dominant estate.
Width of the easement: ENCARNACION V CA
Tomas Encarnacion and the Heirs of the late
Aniceta Magsino Viuda de Sagun are the owners
of two adjacent estates.
Prior to 1960, when the property of de Sagun
was not yet enclosed with a concrete fence,
persons going to the national highway just
crossed their property at no particular point.
However, in 1960 they constructed a fence
around their property. A roadpath measuring 25
meters long and about a meter wide was
constituted to provide access to the highway.
One-half meter width of the path was taken from
the servient estate and the other one-half meter
portion was taken from another lot owned by
Mamerto Magsino. No compensation was asked
and none was given for the portions constituting
the pathway.
It was at about this time when Encarnacion
started his plant nursery business on his land
where he also had his abode. He would use said
pathway as passage to the highway for his family
and for his customers.
The plant nursery business flourished and with
that, it became more and more difficult for
Encarnacion to haul the plants and garden soil to
and from the nursery and the highway with the
use of pushcarts. In January, 1984, he was able
to buy an owner-type jeep which he could use for
transporting his plants.
However, that jeep could not pass through the
roadpath and so he approached de Sagun and
requested that they sell to him one and one-half
(1 1/2) meters of their property to be added to
the existing pathway so as to allow passage for
his jeepney. But his request was turned down,
prompting Encarnacion to file a complaint in
court to seek the issuance of a writ of easement
of a right of way over an additional width of at
least two (2) meters over the De Saguns' 405-
square-meter parcel of land.
During the trial, the attention of the lower court
was called to the existence of another exit to the
highway, only eighty meters away from that of
Encarnacion. The RTC, thus, dismissed the
complaint filed by Encarnacion.
On appeal, the CA sustained the RTC, saying the
necessity interposed by Encarnacion was not
compelling enough to justify interference with
the property rights of de Sagun. There was a
dried river bed only 80 meters away from the
dominant estate and Encarnacion can actually
drive his jeep through the river bed in order to
get to the highway. The CA said the only reason
why Encarnacion wanted a wider easement thru
the De Sagun's estate was that it was more
convenient for his business and family needs.
The SC said that while there is a dried river bed
less than 100 meters from Encarnacion, that
access is grossly inadequate. Generally, the right
of way may be demanded: (1) when there is
absolutely no access to a public highway, and (2)
when, even if there is one, it is difficult or
dangerous to use or is grossly insufficient.
In this case, the river bed route is traversed by a
semi-concrete bridge and there is no ingress nor
egress from the highway. For the jeep to reach
the level of the highway, it must literally jump
four to five meters up. Moreover, during the
rainy season, the river bed is impassable due to
the floods. Thus, it can only be used at certain
times of the year. With the inherent
disadvantages of the river bed which make
passage difficult, if not impossible, it is as if there
were no outlet at all.
With the non-availability of the dried river bed as
an alternative route to the highway, the SC
looked into the argument that Encarnacion
needed a wider pathway only for the
convenience of his business and family. But such
convenience should not be a distraction to the
more pressing consideration that there is a real
and compelling need for such servitude in his
favor.
Article 651 provides that the width of the
easement of right of way shall be that which is
sufficient for the needs of the dominant estate,
and may accordingly be changed from time to
time.
necessary because the owner of the dominant
estate has joined it to another abutting a public
highway, the owner of the servient estate may
demand for the release of his estate from the
servitude by returning what he may have
received by way of indemnity, without interest
because the interest shall be considered as
payment for the use of the easement.

This means it is the needs of the dominant

property which ultimately determine the width
of the passage. And these needs may vary from
But the opening of an adequate outlet to a
time to time.
highway can extinguish only legal or compulsory
When Encarnacion started out as a plant nursery
easements, not voluntary easements. A
operator, he and his family could easily make do
voluntary easement of right of way can be
with a few pushcarts to tow the plants to the
extinguished only by mutual agreement or by
national highway. But the business grew and
renunciation of the owner of the dominant
with it the need for the use of modern means of
estate.
conveyance or transport.
EASEMENT OF PARTY WALL
Manual hauling of plants and garden soil and use
of pushcarts have become extremely
The easement of party wall refers to all those
cumbersome and physically taxing. To force
masses of rights and obligations emanating from
Encarnacion to leave his jeepney in the highway
the existence and common enjoyment of a wall,
because it could not pass through the improvised
fence, enclosures or hedges, by the owners of
pathway can only be counter-productive for all
adjacent buildings and estates separated by such
the people concerned.
objects.

An additional one and one-half meters in the

width of the pathway will reduce the servient
estate to only about 342.5 square meters. But
Encarnacion has expressed willingness to
exchange an equivalent portion of his land to
compensate de Sagun’s loss.
WHEREFORE, Tomas Encarnacion is hereby
declared entitled to an additional easement of
right of way, after payment of proper indemnity.
Who may demand for compulsory right of way
Under Art. 649, it is the owner, or any person
who by virtue of a real right, may cultivate or use
any immovable surrounded by other immovable
pertaining to other persons, who is entitled to
demand a right of way through the neighboring
estates.
A usufructuary is entitled to demand a right of
way but a mere lessee does not enjoy the same
right. The lessee’s action must be against the
lessor who is bound to maintain him in the
enjoyment of the property.
Extinguishment of right of way
Art. 655. If the right of way is no longer
A party wall is a common wall which separates
two estates, built by common agreement, at the
dividing line, such that it occupies a portion of
both estates on equal parts.
Strictly speaking, a party wall is a kind of co-
ownership.
PRESUMPTION OF EXISTENCE OF PARTY WALL
IN THE FOLLOWING CASES:
1. In dividing walls of adjoining buildings up to
the point of common elevation;
2. In dividing walls of gardens situated in cities,
towns or rural communities; and
3. In fences, walls and live hedges dividing rural
lands.
This presumption will not apply if
1. there is title to the contrary;
2. there is an exterior sign to the contrary;
3. there is proof to the contrary.
RIGHTS AND OBLIGATIONS OF EACH CO-
OWNER OF PARTY WALL
1. Right to use
Every part-owner of the party wall may use it in
proportion to the right he may have in the co-
ownership, even without the consent of the
other owners so long as he does not interfere
with the common and respective uses by the
other co-owners.
2. Right to increase height of party wall, subject
to the following conditions: a) the same shall
be done at his expense; b) he shall pay for the
damage which may be caused by his work, even
if the damage is temporary; if the party wall
cannot bear the increased weight, the owner
desiring to raise it shall be obliged to
reconstruct it at his own expense.
3. Repairs and maintenance of the party wall
It shall be borne by all the owners of the lands
or tenements having the party wall in their
favor, in proportion to the right of each.
EASEMENT OF LIGHT AND VIEW
Observance of certain distances
The law prohibits the making of windows,
balconies and other similar projections which
afford a direct view upon or towards an adjoining
land or tenement without leaving a distance of
two meters between the wall in which they are
made and such contiguous property.
With respect to the side or oblique views, the law
requires that the distance be 60 cm.
The foregoing requirement does not apply to
buildings separated by a public way or alley,
unless there is a special regulation and local
ordinance which provide to the contrary.
When these distances are violated, they may be
ordered closed as they constitute unlawful
opening.
EASEMENT OF DRAINAGE OF BUILDINGS
The easement of drainage of buildings is the right
to divert or empty the rainwaters from one’s
own roof or shed to the neighbor’s estate either
drop by drop or through conduits.
Ownership of Rainwater
The Water Code of the Philippines provide that
rainwaters falling on private lands belong to the
State, but a person who collects water by means
of cisterns, tanks or peels shall have exclusive
control over such water and he shall also have
the right to dispose of the same.
Prescriptive period for acquisition of easement
of light and view
The easement of light and view is either positive
or negative.
It is considered positive if made through a party
wall, or even if made on one’s own wall, if the
window is on a balcony or projection extending
over the adjoining property.
When a window is opened through a party wall,
an apparent and continuous easement is created
from the time of such opening. Under Art.
668(1), the adjoining owner can order the
window closed within ten years from the time of
the opening of the window (in order for it not to
be acquired by prescription).
The easement is considered negative if the
window is made through a wall on the dominant
estate. In this case, the ten-year period of
prescription commences from the time of the
formal prohibition upon the adjoining owner.
The formal prohibition must be an instrument
acknowledged before a notary public.
Before the expiration of the prescriptive period,
the window exists by mere tolerance of the
adjoining owner who retains the right to have it
closed or to build an obstruction, although the
opening was made more than 10 years after he
decided to exercise the right.
For example: X made and opening in 2004 but
he made a formal notarized demand prohibiting
Y from obstructing the view only in 2008, Y may
still demand the closure of the window in 2015.
Easement of buildings
Easement of drainage of buildings is the right to
divert or empty the rain waters form one’s own
roof or shed to the neighbor’s estate either drop
by drop or through conduits.
Intermediate distances for planting
Art. 679 prohibits the planting of trees near a
tenement or piece of land belonging to another
unless the distances provided for in Art. 679 are
complied with.
Easement of lateral and subjacent support
The right of lateral and subjacent support is the
right to have land supported by adjoining land or
the soild beneath. Each of two adjoining
landowners is entitled to the support of the
other’s land.
Support is lateral when the supported and the
supporting land are divided by a vertical plane.
Support is subjacent when the supported land is
above and the supporting land is beneath it.

Art. 684 provides that no proprietor shall make

excavation upon his land as to deprive any
adjacent land or building of sufficient lateral or
subjacent support. An owner, by virtue of his
surface right, may make excavations on his land,
but his right is subject to the limitation that he
shall not deprive any adjacent land or building of
sufficient lateral or subjacent support.
Between two adjacent landowners, each has an
absolute property right to have his land laterally
supported by the soil of his neighbors, and if
either, in excavating on his own premises, he so
disturbs the lateral support of his neighbors land
as to cause it, or, in its natural state, by the
pressure of its own weight, to fall away or slide
from its position, the one so excavating is liable.

The easement of lateral and subjacent support is

a negative one – it is in the form of prohibition
on the part of a landowner from making any
excavation that will deprive the adjacent land or
building or sufficient lateral or subjacent
support. If the right of lateral and subjacent
support is violated, the adjoining landowner is
entitled to seek injunctive relief, in addition to
the right to recover damages.

VOLUNTARY EASEMENTS
If the claimant is not entitled to demand for an
easement as a matter of right because the
requisites for legal easement is not present, the
easement may only be constituted upon the will
of the owner of the servient estate in which case,
the easement is classified as voluntary.

A voluntary easement is like any other contract.

As such, it is generally effective between the
parties, their heirs and assigns, except in cases
where the rights and obligations arising from the
contract are not transmissible by their nature, or
by stipulation or by provision of law.