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Title VII. - EASEMENTS OF SERVITUDES

Characteristics of Easement
1. a real right – hence an action in rem is possible against the possessor of the
CHAPTER 1: EASEMENTS IN GENERAL
servient estate
2. imposable only on another’s property
3. it is a jus in re aliena – a real right that may be alienated although the naked
Easement: an encumbrance imposed upon an immovable for the benefit of a ownership is maintained
community or 1 or more persons (persona easement) or for the benefit of anther 4. it is a limitation/encumbrance on the servient estate for another’s benefit
immovable belonging to a different owner (real or predial easement) a. it is essential that there be benefit otherwise there would be no
easement
EASEMENT SERVITUDE b. it is not essential that the benefit be exercised. What is vital is that it
The name used in common law countries The name used in civil law countries can be exercised
Only one form of servitude A broader term c. the benefit should not be so great as to completely absorb/impair the
Always a predial or real Refers to a predial or real easement upon usefulness of the servient estate, for then, this would not be merely
the one hand, or to a personal easement an encumbrance or a limitation but a cancellation of the rights of the
upon the other hand servient estate
d. the benefit or utility goes to the dominant estate, not necessarily to
the owner of the dominant estate
EASEMENT LEASE e. there is limited use but there is no possession
Always a real right (whether the A real right only when it is registered or f. the exercise is naturally restricted by the needs of the dominant
easement be real or personal) when the lease of real property exceeds estate or of its owner
1 year g. easements, being an abnormal restriction on ownership, are not
There is a rightful limited use w/o There is a rightful & limited use & presumed, but may be imposed by law
ownership or possession possession w/o ownership 5. there is inheritance/inseparability, from the estate to w/c it belongs
Can refer only to immovables May involved real or personal property 6. it is indivisible – even if the tenement be divided
7. it is intransmissible – unless the tenement affected be also transmitted or
Note: acknowledgement of easement is an admission that the property belongs to alienated
another 8. it is perpetual as – as long as the dominant and/or the servient estate exists
unless sooner extinguished by the causes enumerated by law

SECTION 1. - Different Kinds of Easements Note: there can be no easement imposed on personal property; only immovables my
be burdened w/ easements
Art. 613. An easement or servitude is an encumbrance imposed upon an immovable
Art. 615. Easements may be continuous or discontinuous, apparent or nonapparent.
for the benefit of another immovable belonging to a different owner.
Continuous easements are those the use of which is or may be incessant, without the
The immovable in favor of which the easement is established is called the dominant
intervention of any act of man.
estate; that which is subject thereto, the servient estate.
Discontinuous easements are those which are used at intervals and depend
upon the acts of man.
Note: where the easement may be established on any of several tenements
Apparent easements are those which are made known and are continually
surrounding the dominant estate, the one where the way is shortest & will cause the kept in view by external signs that reveal the use and enjoyment of the same.
least damage should be chosen. However, if these 2 circumstances do not concur in a
Nonapparent easements are those which show no external indication of their existence.
single tenement, the way w/c will cause the least damages should be used, even if it
will not be the shortest.
Art. 616. Easements are also positive or negative.
A positive easement is one which imposes upon the owner of the servient
Art. 614. Servitudes may also be established for the benefit of a community, or of one estate the obligation of allowing something to be done or of doing it himself, and a
or more persons to whom the encumbered estate does not belong. negative easement, that which prohibits the owner of the servient estate from doing
something which he could lawfully do if the easement did not exist.
PERSONAL EASEMENT USUFRUCT
Cannot be alienated Generally can be alienated
The use is specifically designated The use has a broader scope, and in general
comprehends all the possible uses of the thing

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CLASSIFICATION OF EASEMENTS Provisions of the Land Registration Law
REAL/PREDIAL: for the benefit of another immovable • easements shall continue to subsist & shall be held to pass w/ the title of
As to a party given belonging to a diff. owner ownership until rescinded or extinguished by virtue of the registration of the
BENEFIT PERSONAL: for the benefit of 1 or more persons or of a servient estate
community
CONTINUOUS: their use is incessant, or may be incessant, GR: the registration of the servient estate w/o the registration of the voluntary
As to manner of w/o the intervention of any act of man easement presumably extinguishes the easement
EXERCISE DISCONTINUOUS: they are used at intervals & depend Exceptions (when there is no extinguishment of said easement):
upon the acts of man 1. the grantee or transferee of the servient estate actually knew of the existence
APPARENT: those made known & continually kept in view of the unrecorded easement
As to w/n by externals signs that reveal the use & enjoyment of the 2. there is an understanding or stipulation that the easement would continue to
EXISTENCE is same exist
INDICATED NON-APPARENT: they show no external indication of their
existence Art. 618. Easements are indivisible. If the servient estate is divided between two or
POSITIVE: here, the owner of the servient estate is more persons, the easement is not modified, and each of them must bear it on the part
obliged: which corresponds to him.
As to the - to allow something to be done on his property, or If it is the dominant estate that is divided between two or more persons, each of them
PURPOSE of the - to do it himself may use the easement in its entirety, without changing the place of its use, or making
easement or the note: they are also termed “servitudes of sufferance or it more burdensome in any other way.
NATURE of the intrusion or service” because something is being done on the
LIMITATION servient estate Indivisibility of Easements
NEGATIVE: here the owner of the servient estate is • partition/division of an estate does not divide the easement, w/c continues to
prohibited to do something w/c he could lawfully do were it be complete in that each of the dominant estates can exercise the whole
not for the existence of the easement easement over each of the servient estates, but only on the part
right to partially use the servient estate corresponding to each of them
right to get specific materials or objects from the servient
As to the estate Art. 619. Easements are established either by law or by the will of the owners. The
RIGHT GIVEN Right to participate in ownership former are called legal and the latter voluntary easements.
Right to impede or prevent the neighboring estate from
performing a specific act of ownership Judicial Declaration that an Easement Exists
VOLUNTARY: constituted by will or agreement of the • when the court says that an easement exists, it is not creating one, it merely
parties or by a testator declares the existence of an easement created either by law or by the parties
As to LEGAL: those constituted by law for public use or private or testator
SOURCE/ORIGIN interest
MIXED: created partly by agreement & partly by the law SECTION 2. - Modes of Acquiring Easements

Art. 617. Easements are inseparable from the estate to which they actively or passively Art. 620. Continuous and apparent easements are acquired either by virtue of a title or
belong. by prescription of ten years.

“Inseparable” HOW EASEMENTS ARE ACQUIRED

• indicates that independently of the immovable to w/c they are attached, BY TITLE & If continuous & apparent
easements do not exist PRESCRIPTION
If continuous & non-apparent (because they are NOT
Consequences of Inseparability BY TITLE PUBLIC)
• easements cannot be sold or donated or mortgaged independently of the real ONLY If discontinuous & apparent (because the possession is
property to w/c they may be attached – this means that when an easement is UNINTERRUPTED)
granted, such easement refers to a particular parcel of land If discontinuous & non-apparent
• registration of the dominant estate under the Torrens system w/o the
registration of the voluntary easements in its favour, does not extinguish the Title: a juridical act or law sufficient to create the encumbrance
easements; but registration of the servient estate extinguishes said voluntary
easements

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Note: intestate succession does not create an easement, for no act is involved. Hence, Proof of Easements may be:
instead of creating an easement, it transmits merely an easement already existing. 1. by deed of recognition by the SERVIENT owner
2. final judgment
Art. 621. In order to acquire by prescription the easements referred to in the preceding
article, the time of possession shall be computed thus: in positive easements, from the Art. 624. The existence of an apparent sign of easement between two estates,
day on which the owner of the dominant estate, or the person who may have made use established or maintained by the owner of both, shall be considered, should either of
of the easement, commenced to exercise it upon the servient estate; and in negative them be alienated, as a title in order that the easement may continue actively and
easements, from the day on which the owner of the dominant estate forbade, by an passively, unless, at the time the ownership of the two estates is divided, the contrary
instrument acknowledged before a notary public, the owner of the servient estate, from should be provided in the title of conveyance of either of them, or the sign aforesaid
executing an act which would be lawful without the easement. 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.
if the easement is POSITIVE – begin counting the period from the day the dominant
estate began to exercise it Apparent Signs of an Easement that Apparently Exists
if the easement is NEGATIVE – begin counting from the time NOTARIAL 1. originally no true easement exists here because there is only 1 owner
PROHIBITION was made on the SERVIENT ESTATE 2. the article speaks of apparent visible easements
3. sign of the easement does not mean a placard or sign post, but an outward
Q: who makes the notarial prohibition or who should commence the exercise of the indication that the easement exists
easement? 4. it is not essential that there be an apparent sign bet. the 2 estates; is
A: the dominant estate, thru its owner or usufructuary or possessor or legal important that the easement exists bet. the 2 estates
representative; in other words, any one who desires to establish the easement.
Rules:
Q: is the easement of light & view positive or negative? 1. before the alienation, there is no true easement
• if made on one’s own wall & the wall does not extend over the neighbor’s land, 2. after alienation:
the easement is NEGATIVE a. there arises an easement IF the sign continues to remain unless
• if made on one’s own wall w/c extends over the neighboring land, or if made there is a contrary agreement (the continuance of the sign is the
on a party wall, the easement is created because of an act of sufferance or title)
allowance, thus the easement is POSITIVE b. there is no easement if the sign is removed or if there is an
agreement to this effect
Q: may the easement of right of way be acquired by prescription?
A: no, because it is discontinuous or intermittent. The limitation on the servient Applicability of the Article
owner’s rights of ownership exists only when the dominant owner actually crosses or 1. whether only 1 or both estates are alienated
passes over the servient estate. Since the dominant owner cannot be continually 2. even if there be only 1 estate but there are 2 portions thereof, as long as later
crossing the servient estate, but can do so only at intervals, the easement is on there is a division of the ownership of the said portion
necessarily of a discontinuous nature 3. even in the case of division of common property, though this is not an
alienation
Art. 622. Continuous nonapparent easements, and discontinuous ones, whether
apparent or not, may be acquired only by virtue of a title. When Article does not Apply
• in case both estates or both portions are alienated to the same owner, for
Requisites of Prescription then there would be no true easement unless there is a further alienation, this
1. concept of owner time, to different owners
2. public
3. peaceful Art. 625. Upon the establishment of an easement, all the rights necessary for its use
4. uninterrupted are considered granted.

Art. 623. The absence of a document or proof showing the origin of an easement which Grant of Necessary Rights for the Use of the Easement
cannot be acquired by prescription may be cured by a deed of recognition by the owner • unless the necessary rights are also granted, the right to the easement itself is
of the servient estate or by a final judgment. rendered nugatory
• necessary rights include repair, maintenance, accessory easements such as
Applicability of Article the right of way if the easement is for the drawing of water
1. continuous non-apparent • termination of the principal easement necessarily ends all the secondary or
2. discontinuous easements accessory easements

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rd
Requisite to Affect/Prejudice 3 persons: voluntary easements must be RIGHTS OBLIGATIONS
registered; this is not generally essential for legal easements since this exists as a 1. to exercise the easement & all the 1. he cannot alter the easement
matter of law & necessity necessary rights for its use 2. he cannot make it more
including accessory easements burdensome
Art. 626. The owner of the dominant estate cannot use the easement except for the 2. to make on the servient estate all a. the he cannot use the
benefit of the immovable originally contemplated. Neither can he exercise the works necessary for the use & easement except for
easement in any other manner than that previously established. preservation of the servitude, BUT: movable originally
a. a this must be at his own expense contemplated
Easements Appurtenant & Easements in Gross b. he must notify the servient owner b. in the easement of right of
• easements w/ a dominant estate are called easements appurtenant, w/o the c. select convenient time & manner way, he cannot increase the
dominant estate, they are purely personal, and may thus be referred to as d. he must not alter the easement agreed width of the path,
easements in gross DOMINANT nor render it more burdensome nor deposit soil or material
• a personal easement or an easement in gross, precisely because it is an ESTATE 3. to ask for a mandatory injunction outside the boundaries
easement, is still real property, not personal property to prevent impairment or agreed upon, but he may
obstruction in the exercise of the allow others to use the path
easement as when the owner of except if the contrary has
SECTION 3. - Rights and Obligations of the Owners of the Dominant and the servient estate obstructs the been stipulated
Servient Estates right of way by building a wall or 3. if there be several dominant
fence estates, each must contribute
4. to renounce totally the easement if to necessary repairs and
Art. 627. The owner of the dominant estate may make, at his own expense, on the he desires exemption from expenses in proportion to the
servient state any works necessary for the use and preservation of the servitude, but contribution to expenses benefits received by each
without altering it or rendering it more burdensome. estate
For this purpose he shall notify the owner of the servient estate, and shall choose the 1. to retain ownership & possession of 1. he cannot impair the use of
most convenient time and manner so as to cause the least inconvenience to the owner the portion of his land affected by the easement
of the servient estate. the easement even if indemnity for 2. he must contribute to the
the right is given, unless the expenses in case he uses the
Art. 628. Should there be several dominant estates, the owners of all of them shall be contrary has been stipulated easement, unless there is a
obliged to contribute to the expenses referred to in the preceding article, in proportion 2. to make use of the easement, contrary stipulation
to the benefits which each may derive from the work. Any one who does not wish to unless deprived by stipulation, 3. in case of impairment, to
contribute may exempt himself by renouncing the easement for the benefit of the provided that the exercise of the restore conditions to the
others. SERVIENT easement is not adversely affected, status quo at his expense
If the owner of the servient estate should make use of the easement in any manner ESTATE and provided that he contributes to plus damages
whatsoever, he shall also be obliged to contribute to the expenses in the proportion the expenses in proportion to 4. to pay for the expenses
stated, saving an agreement to the contrary. benefits received, unless there is a incurred for the change of
contrary stipulation location or form of the
Art. 629. The owner of the servient estate cannot impair, in any manner whatsoever, 3. to change the location of a very easement
the use of the servitude. inconvenient easement provided
Nevertheless, if by reason of the place originally assigned, or of the manner established that an equally convenient
for the use of the easement, the same should become very inconvenient to the owner substitute is made, w/o injury to
of the servient estate, or should prevent him from making any important works, repairs the dominant estate
or improvements thereon, it may be changed at his expense, provided he offers
another place or manner equally convenient and in such a way that no injury is caused SECTION 4. - Modes of Extinguishment of Easements
thereby to the owner of the dominant estate or to those who may have a right to the
use of the easement. Art. 631. Easements are extinguished:
(1) By merger in the same person of the ownership of the dominant and servient
Art. 630. The owner of the servient estate retains the ownership of the portion on estates;
which the easement is established, and may use the same in such a manner as not to (2) By nonuser for ten years; with respect to discontinuous easements, this period shall
affect the exercise of the easement. be computed from the day on which they ceased to be used; and, with respect to
continuous easements, from the day on which an act contrary to the same took place;

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(3) When either or both of the estates fall into such condition that the easement cannot Legal Easements: easements imposed by law, and w/c have for their object either:
be used; but it shall revive if the subsequent condition of the estates or either of them 1. public use
should again permit its use, unless when the use becomes possible, sufficient time for 2. interest of private persons
prescription has elapsed, in accordance with the provisions of the preceding number;
(4) By the expiration of the term or the fulfilment of the condition, if the easement is The Different Legal Easements
temporary or conditional; 1. the easements relating to water
(5) By the renunciation of the owner of the dominant estate; 2. right of way
(6) By the redemption agreed upon between the owners of the dominant and servient 3. party wall
estates. 4. light & view
5. drainage
Other Causes for Extinguishment of Easement 6. intermediate distance
1. expropriation of the servient estate 7. easement against nuisance
2. permanent impossibility to make use of the easement 8. lateral & subjacent support
3. annulment, rescission, or cancellation of the title that constituted the
easement Art. 635. All matters concerning easements established for public or communal use
4. abandonment of the servient estate shall be governed by the special laws and regulations relating thereto, and, in the
5. resolution of the right of the grantor to create the easement absence thereof, by the provisions of this Title.
6. registration of the servient estate as FREE, that is, although the servient Art. 636. Easements established by law in the interest of private persons or for private
estate was registered under the Torrens System, the easement thereon was use shall be governed by the provisions of this Title, without prejudice to the provisions
not registered, unless there is a stipulation or actual knowledge of the of general or local laws and ordinances for the general welfare.
existence of the easement on the part of the transferee These easements may be modified by agreement of the interested parties, whenever
7. in case of the legal easement of right of way, the opening of an adequate the law does not prohibit it or no injury is suffered by a third person.
outlet to the highway extinguishes the easement, if the servient owner makes
a demand for such extinguishment How Legal Easements for Private Interests are Governed
1. agreement of interested parties provided not prohibited by law nor prejudicial
Art. 632. The form or manner of using the easement may prescribe as the easement to a 3rd person
itself, and in the same way. 2. in default of the latter, general/local laws & ordinances for the general welfare
3. in default of the latter, the Civil Code
PRESCRIPTION RE: PRESCRIPTION RE:
VOLUNTARY EASEMENTS LEGAL EASEMENTS SECTION 2. - Easements Relating to Waters
- the easement itself may - some legal easements do not prescribe (e.g.
prescribe servitude of national drainage) Art. 637. Lower estates are obliged to receive the waters which naturally and without
- the form or manner of using - the right to exercise them cannot also prescribe the intervention of man descend from the higher estates, as well as the stones or earth
may also prescribe in the same - the manner & form of using them may prescribe which they carry with them.
manner as the easement itself 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.
Art. 633. If the dominant estate belongs to several persons in common, the use of the
easement by any one of them prevents prescription with respect to the others. Legal Easements Relating to Waters
1. natural drainage of lands
Note: the use benefits the other co-owners, hence there will be no prescription even w 2. natural drainage of buildings
respect to their own shares. 3. easements on riparian banks for navigation, floatage, fishing salvage
4. easement of a dam
CHAPTER 2: LEGAL EASEMENTS 5. easement for drawing water or for watering animals
6. easements of aqueduct
7. easement for the construction of a stop lock of sluice gate
SECTION 1. - General Provisions
What Lower Estates are Obliged to Receive
Art. 634. Easements imposed by law have for their object either public use or the 1. water w/c naturally & w/o the intervention of man descends from the higher
interest of private persons. estates
2. the stones & earth carried by the waters

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DUTIES OF SERVIENT ESTATE DUTIES OF DOMINANT ESTATE Accessory Easement – easement of right of way
1. the owner cannot construct works that 1. he cannot make works w/c will increase
would impede the easement the burden Requirements for Such an Easement to Exist
2. nor can he enclose his land by ditches 2. but he may construct works preventing 1. It must be for a public use.
or fences w/c would impede the flow erosion 2. It must be in favor of a town/village, the purpose being to facilitate the
3. should he really construct an 3. if the descending waters are the result of establishment of rural towns by making conveniently possible the supply of
obstruction, the easement may be artificial development or proceed from water.
extinguishes by non-user & barred by industrial establishments recently set up, 3. It must be sought not by 1 individual, but by the town/village, thru its legal
prescription if the action to destroy or are the overflow from irrigation representation.
the dike is brought only after more damns, the owner of the lower estate 4. There must be payment of the proper indemnity.
than 10 years shall be entitled to compensation for his 5. The right of way have a max width of 10m, w/c cannot be altered by the
loss or damage 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. 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 Art. 642. Any person who may wish to use upon his own estate any water of which he
margins, to the easement of public use in the general interest of navigation, floatage, can dispose shall have the right to make it flow through the intervening estates, with
fishing and salvage. the obligation to indemnify their owners, as well as the owners of the lower estates
Estates adjoining the banks of navigable or floatable rivers are, furthermore, subject to upon which the waters may filter or descend
the easement of towpath for the exclusive service of river navigation and floatage. Art. 643. One desiring to make use of the right granted in the preceding article is
If it be necessary for such purpose to occupy lands of private ownership, the proper obliged:
indemnity shall first be paid. (1) To prove that he can dispose of the water and that it is sufficient for the use for
which it is intended;
River Bank: a lateral strip of shore washed by the water during high tides but w/c (2) To show that the proposed right of way is the most convenient and the least
cannot be said to be flooded or inundated onerous to third persons;
(3) To indemnify the owner of the servient estate in the manner determined by the
Payment of Indemnity laws and regulations
1. NO INDEMNITY – if the land be of public ownership Art. 644. The easement of aqueduct for private interest cannot be imposed on
2. INDEMNITY – if the land be of private ownership buildings, courtyards, annexes, or outhouses, or on orchards or gardens already
existing.
Art. 645. The easement of aqueduct does not prevent the owner of the servient estate
Art. 639. Whenever for the diversion or taking of water from a river or brook, or for the
from closing or fencing it, or from building over the aqueduct in such manner as not to
use of any other continuous or discontinuous stream, it should be necessary to build a
cause the latter any damage, or render necessary repairs and cleanings impossible.
dam, and the person who is to construct it is not the owner of the banks, or lands
Art. 646. For legal purposes, the easement of aqueduct shall be considered as
which must support it, he may establish the easement of abutment of a dam, after
continuous and apparent, even though the flow of the water may not be continuous, or
payment of the proper indemnity.
its use depends upon the needs of the dominant estate, or upon a schedule of alternate
Art. 640. Compulsory easements for drawing water or for watering animals can be
days or hours.
imposed only for reasons of public use in favor of a town or village, after payment of
the proper indemnity.
Possible Ways of Making Effective the Easement
1. Construction of an open canal (not dangerous nor very deep)
Easements for Drawing Water or for Watering Animals
2. Construction of a covered or closed canal (if so required by the legal
1. the can be imposed only for reasons of public use
authorities to minimize danger)
2. they must be in favor of a town or village
3. Construction of tubes or pipes
3. proper indemnity must be paid
Obligations of the Dominant Owner
Art. 641. Easements for drawing water and for watering animals carry with them the 1. To keep the adqueduct in proper use or care
obligation of the owners of the servient estates to allow passage to persons and 2. To keep on hand necessary materials for its use
animals to the place where such easements are to be used, and the indemnity shall
include this service. Preservation of Right of Servient Estate to Fence – The servient owner may still
enclose or fence the servient estate, or even build over the aqueduct, so long as:
Principal Easements covered by Arts. 640 & 641 1. No damage is caused, or
1. Easement for drawing water 2. Repairs & cleanings become impossible
2. Easement for watering animals

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