Civil Law Review
Lecture Series
Part III
ATTY. EDUARDO T.
REYES, III
(For Fourth Year Section-A CIVIL LAW REVIEW
and PROPERTY
Second Year,
University of San Agustin School of Law,
General Luna Street, Iloilo City,
School Year 2016-2017 Ist Semester)
SECTION 3
Rights and Obligations of the Owners of the Dominant and Servient Estates
Rights and Obligations of the Owners of the Dominant and Servient Estates
Article 627. The owner of the dominant estate may make, at his own expense, on
the servient estate any works necessary for the use and preservation of the
servitude, but without altering it or rendering it more burdensome.
For this purpose he shall notify the owner of the servient estate, and
shall choose the most convenient time and manner so as to cause the least
inconvenience to the owner of the servient estate. (543a)
Article 628. Should there be several dominant estates, the owners of all of
them shall be obliged to contribute to the expenses referred to in the
preceding article, in proportion to the benefits which each may derive from the
work. Any one who does not wish to contribute may exempt himself by renouncing
the easement for the benefit of the others.
If the owner of the servient estate should make use of the easement in
any manner whatsoever, he shall also be obliged to contribute to the expenses
in the proportion stated, saving an agreement to the contrary. (544)
Article 629. The owner of the servient estate cannot impair, in any manner
whatsoever, the use of the servitude.
Nevertheless, if by reason of the place originally assigned, or of the
manner established for the use of the easement, the same should become very
inconvenient to the owner of the servient estate, or should prevent him from
making any important works, repairs 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 thereby to the owner of the dominant
estate or to those who may have a right to the use of the easement. (545)
Article 630. 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. (n)
Comments:
1.Could a registered
owner of a tract of land evict informal settlers occupying the 3-meter legal
easement leading to a creek?
Said the Supreme Court
in Pilar
Development Corporation v. Ramon Dumadag et al.,[1]
“While Article 630 of the Code
provides for the general rule that “[t] 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,
“Article 635 thereof is specific in saying that “all matters concerning easements established for public or communal
use shall be governed by the special law and regulations relating thereto, and
in the absence thereof, by the provisions of this Title [Title VII on
Easements and Servitudes].
X x x
“As to
the issue of who is the proper party entitled to institute a case with respect
to the 3-meter strip/zone, We find and so hold that both the Republic of the
Philippines, through the OSG and the local government of Las Piñas City, may
file an action depending on the purpose sought to be achieved. The former shall
be responsible in case of action for reversion under C.A. 141, while the latter
may also bring an action to enforce the relevant provisions of Republic Act No.
7279 (otherwise known as the Urban Development and Housing Act of 1992).”
2. So what then is the remedy
of the registered owner under the premises?
In the same case, the
Supreme Court made a recommendation in this fashion:
“Yet all is not lost for petitioner. It may properly file an action for
mandamus to compel the local
government of Las Piñas City to enforce with reasonable dispatch the eviction,
demolition, and relocation of respondents and any other persons similarly
situated in order to give flesh to one of the avowed policies of R.A. 7279,
which is to reduce urban dysfunctions, particularly those that adversely affect
public health, safety and ecology. Indeed, as one of the basic humand needs,
housing is a matter of state concern as it directly and significantly affects
the general welfare.”
SECTION 4
Modes of Extinguishment of Easements
Article 631. Easements are extinguished:
(1) By merger in the same person of the ownership
of the dominant and servient estates;
(2) By nonuser for ten years; with respect to
discontinuous easements, this period shall 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;
(3) When either or both of the estates fall into
such condition that the easement cannot be used; but it shall revive if the
subsequent condition of the estates or either of them should again permit its
use, unless when the use becomes possible, sufficient time for prescription has
elapsed, in accordance with the provisions of the preceding number;
(4) By the expiration of the term or the
fulfillment of the condition, if the easement is temporary or conditional;
(5) By the renunciation of the owner of the
dominant estate;
(6) By the redemption agreed upon between the
owners of the dominant and servient estates. (546a)
Article 632. The form or manner of using the easement may prescribe as the
easement itself, and in the same way. (547a)
Article 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. (548)
CHAPTER 2
Legal Easements
Legal Easements
SECTION 1
General Provisions
Article 634. Easements imposed by law have for their object either public use
or the interest of private persons. (549)
Article 635. All matters concerning easements established for public or
communal use shall be governed by the special laws and regulations relating
thereto, and, in the absence thereof, by the provisions of this Title. (550)
Article 636. Easements established by law in the interest of private persons or
for private use shall be governed by the provisions of this Title, without
prejudice to the provisions of general or local laws and ordinances for the
general welfare.
These easements may be modified by agreement of the interested parties,
whenever the law does not prohibit it or no injury is suffered by a third
person. (551a)
SECTION 2
Easements Relating to Waters
Easements Relating to Waters
Article 637. Lower estates are obliged to receive the waters which naturally
and without the intervention of man descend from the higher estates, as well as
the stones or earth which they carry with them.
The owner of the lower estate cannot construct works which will impede
this easement; neither can the owner of the higher estate make works which will
increase the burden. (552)
Article 638. The banks of rivers and streams, even in case they are of private
ownership, are subject throughout their entire length and within a zone of
three meters along their margins, to the easement of public use in the general
interest of navigation, floatage, fishing and salvage.
Estates adjoining the banks of navigable or floatable rivers are,
furthermore, subject to the easement of towpath for the exclusive service of
river navigation and floatage.
If it be necessary for such purpose to occupy lands of private
ownership, the proper indemnity shall first be paid. (553a)
Article 639. Whenever for the diversion or taking of water from a river or
brook, or for the use of any other continuous or discontinuous stream, it
should be necessary to build a dam, and the person who is to construct it is
not the owner of the banks, or lands which must support it, he may establish
the easement of abutment of a dam, after payment of the proper indemnity. (554)
Article 640. Compulsory easements for drawing water or for watering animals can
be imposed only for reasons of public use in favor of a town or village, after
payment of the proper indemnity. (555)
Article 641. Easements for drawing water and for watering animals carry with
them the obligation of the owners of the servient estates to allow passage to
persons and animals to the place where such easements are to be used, and the
indemnity shall include this service. (556)
Article 642. Any person who may wish to use upon his own estate any water of
which he can dispose shall have the right to make it flow through the
intervening estates, with the obligation to indemnify their owners, as well as
the owners of the lower estates upon which the waters may filter or descend.
(557)
Article 643. One desiring to make use of the right granted in the preceding
article is obliged:
(1) To prove that he can dispose of the water and
that it is sufficient for the use for which it is intended;
(2) To show that the proposed right of way is the
most convenient and the least onerous to third persons;
(3) To indemnify the owner of the servient estate
in the manner determined by the laws and regulations. (558)
Article 644. The easement of aqueduct for private interest cannot be imposed on
buildings, courtyards, annexes, or outhouses, or on orchards or gardens already
existing. (559)
Article 645. The easement of aqueduct does not prevent the owner of the
servient estate from closing or fencing it, or from building over the aqueduct
in such manner as not to cause the latter any damage, or render necessary
repairs and cleanings impossible. (560)
Article 646. For legal purposes, the easement of aqueduct shall be considered
as continuous and apparent, even though the flow of the water may not be
continuous, or its use depends upon the needs of the dominant estate, or upon a
schedule of alternate days or hours. (561)
Article 647. One who for the purpose of irrigating or improving his estate, has
to construct a stop lock or sluice gate in the bed of the stream from which the
water is to be taken, may demand that the owners of the banks permit its
construction, after payment of damages, including those caused by the new
easement to such owners and to the other irrigators. (562)
Article 648. The establishment, extent, form and conditions of the servitudes
of waters, to which this section refers, shall be governed by the special laws
relating thereto insofar as no provision therefor is made in this Code. (563a)
SECTION 3
Easement of Right of Way
Easement of Right of Way
Article 649. The owner, or any person who by virtue of a real right may
cultivate or use any immovable, which is surrounded by other immovables
pertaining to other persons and without adequate outlet to a public highway, is
entitled to demand a right of way through the neighboring estates, after
payment of the proper indemnity.
Should this easement be established in such a manner that its use may be
continuous for all the needs of the dominant estate, establishing a permanent
passage, the indemnity shall consist of the value of the land occupied and the
amount of the damage caused to the servient estate.
In case the right of way is limited to the necessary passage for the
cultivation of the estate surrounded by others and for the gathering of its
crops through the servient estate without a permanent way, the indemnity shall
consist in the payment of the damage caused by such encumbrance.
This easement is not compulsory if the isolation of the immovable is due
to the proprietor's own acts. (564a)
Article 650. The easement of right of way shall be established at the point
least prejudicial to the servient estate, and, insofar as consistent with this
rule, where the distance from the dominant estate to a public highway may be
the shortest. (565)
Comments:
1. Requisites; Property is surrounded by estates of
others; there is no adequate outlet
to a public highway; there must be payment of proper indemnity;
2.
Important
Considerations. a. least prejudicial to the servient estate; and 2. Shortest
distance.
3.
In case of
conflict between requisites, “least prejudicial” requirement prevails[2].
4.
Test of “Adequacy”
or “Convenience”? Which is the litmus test?
The convenience of the dominant estate
has never been the gauge for the grant of compulsory right of way. To be sure,
the true standard for the grant of the legal right is adequacy. Hence, 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 or
another, be inconvenient, the need to open up another servitude is entirely
unjustified.
Thus,
in Cristobal v. CA, the Court disallowed the easement prayed
for because an outlet already exists which is a path walk located at the left
side of petitioners property and which is connected to a private road about
five hundred (500) meters long. The private road, in turn, leads to
Ma. Elena Street, which is about 2.5 meters wide, and finally,
to Visayas Avenue. This outlet was determined by the Court to be
sufficient for the needs of the dominant estate.
Also in Floro v. Llenado, we
refused to impose a right of way over petitioners property although private
respondents alternative route was admittedly 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.
And in Ramos v. Gatchalian
Realty, Inc., this Court refused to grant the easement prayed for even
if petitioner had to pass through lots belonging to other owners, as temporary
ingress and egress, which lots were grassy, cogonal, and greatly inconvenient
due to flood and mud because such grant would run counter to the prevailing
jurisprudence that mere convenience for the dominant estate does not suffice to
serve as basis for the easement.”[3]
Article 651. The width of the easement of right of way shall be that which is
sufficient for the needs of the dominant estate, and may accordingly be changed
from time to time. (566a)
Article 652. Whenever a piece of land acquired by sale, exchange or partition,
is surrounded by other estates of the vendor, exchanger, or co-owner, he shall
be obliged to grant a right of way without indemnity.
In case of a simple donation, the donor shall be indemnified by the
donee for the establishment of the right of way. (567a)
Article 653. In the case of the preceding article, if it is the land of the
grantor that becomes isolated, he may demand a right of way after paying a
indemnity. However, the donor shall not be liable for indemnity. (n)
Article 654. If the right of way is permanent, the necessary repairs shall be
made by the owner of the dominant estate. A proportionate share of the taxes
shall be reimbursed by said owner to the proprietor of the servient estate. (n)
Article 655. If the right of way granted to a surrounded estate ceases to be
necessary because its owner has joined it to another abutting on a public road,
the owner of the servient estate may demand that the easement be extinguished,
returning what he may have received by way of indemnity. The interest on the
indemnity shall be deemed to be in payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened giving
access to the isolated estate.
In both cases, the public highway must substantially meet the needs of
the dominant estate in order that the easement may be extinguished. (568a)
Article 656. If it be indispensable for the construction, repair, improvement,
alteration or beautification of a building, to carry materials through the
estate of another, or to raise therein scaffolding or other objects necessary
for the work, the owner of such estate shall be obliged to permit the act,
after receiving payment of the proper indemnity for the damage caused him.
(569a)
Article 657. Easements of the right of way for the passage of livestock known
as animal path, animal trail or any other, and those for watering places,
resting places and animal folds, shall be governed by the ordinances and
regulations relating thereto, and, in the absence thereof, by the usages and
customs of the place.
Without prejudice to rights legally acquired, the animal path shall not
exceed in any case the width of 75 meters, and the animal trail that of 37
meters and 50 centimeters.
Whenever it is necessary to establish a compulsory easement of the right
of way or for a watering place for animals, the provisions of this Section and
those of articles 640 and 641 shall be observed. In this case the width shall
not exceed 10 meters. (570a)
Comments:
1.Who has the burden to prove the
existence of an easement?
“Legal easement of
right of way- an easement of right of way involves an abnormal restriction on
the property rights of the servient owner and is regarded as a charge or
encumbrance on the servient estate. It is incumbent upon the owner of the dominant estate to establish by clear
and convincing evidence the presence of all the preconditions before his claim
for easement of right of way may be granted.”[4]
SECTION 4
Easement of Party Wall
Easement of Party Wall
Article 658. The easement of party wall shall be governed by the provisions of
this Title, by the local ordinances and customs insofar as they do not conflict
with the same, and by the rules of co-ownership. (571a)
Article 659. The existence of an easement of party wall is presumed, unless
there is a title, or exterior sign, or proof to the contrary:
(1) In dividing walls of adjoining buildings up to
the point of common elevation;
(2) In dividing walls of gardens or yards situated
in cities, towns, or in rural communities;
(3) In fences, walls and live hedges dividing rural
lands. (572)
Article 660. It is understood that there is an exterior sign, contrary to the
easement of party wall:
(1) Whenever in the dividing wall of buildings
there is a window or opening;
(2) Whenever the dividing wall is, on one side,
straight and plumb on all its facement, and on the other, it has similar
conditions on the upper part, but the lower part slants or projects outward;
(3) Whenever the entire wall is built within the
boundaries of one of the estates;
(4) Whenever the dividing wall bears the burden of
the binding beams, floors and roof frame of one of the buildings, but not those
of the others;
(5) Whenever the dividing wall between courtyards,
gardens, and tenements is constructed in such a way that the coping sheds the
water upon only one of the estates;
(6) Whenever the dividing wall, being built of
masonry, has stepping stones, which at certain intervals project from the
surface on one side only, but not on the other;
(7) Whenever lands inclosed by fences or live
hedges adjoin others which are not inclosed.
In all these cases, the ownership of the walls,
fences or hedges shall be deemed to belong exclusively to the owner of the
property or tenement which has in its favor the presumption based on any one of
these signs. (573)
Article 661. Ditches or drains opened between two estates are also presumed as
common to both, if there is no title or sign showing the contrary.
There is a sign contrary to the part-ownership whenever the earth or
dirt removed to open the ditch or to clean it is only on one side thereof, in
which case the ownership of the ditch shall belong exclusively to the owner of
the land having this exterior sign in its favor. (574)
Article 662. The cost of repairs and construction of party walls and the
maintenance of fences, live hedges, ditches, and drains owned in common, 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.
Nevertheless, any owner may exempt himself from contributing to this
charge by renouncing his part-ownership, except when the party wall supports a
building belonging to him. (575)
Article 663. If the owner of a building, supported by a party wall desires to
demolish the building, he may also renounce his part-ownership of the wall, but
the cost of all repairs and work necessary to prevent any damage which the
demolition may cause to the party wall, on this occasion only, shall be borne
by him. (576)
Article 664. Every owner may increase the height of the party wall, doing so at
his own expense and paying for any damage which may be caused by the work, even
though such damage be temporary.
The expenses of maintaining the wall in the part newly raised or
deepened at its foundation shall also be paid for by him; and, in addition, the
indemnity for the increased expenses which may be necessary for the
preservation of the party wall by reason of the greater height or depth which
has been given it.
If the party wall cannot bear the increased height, the owner desiring
to raise it shall be obliged to reconstruct it at his own expense and, if for
this purpose it be necessary to make it thicker, he shall give the space
required from his own land. (577)
Article 665. The other owners who have not contributed in giving increased
height, depth or thickness to the wall may, nevertheless, acquire the right of
part-ownership therein, by paying proportionally the value of the work at the
time of the acquisition and of the land used for its increased thickness.
(578a)
Article 666. Every part-owner of a party wall may use it in proportion to the
right he may have in the co-ownership, without interfering with the common and
respective uses by the other co-owners. (579a)
SECTION 5
Easement of Light and View
Easement of Light and View
Article 667. No part-owner may, without the consent of the others, open through
the party wall any window or aperture of any kind. (580)
Article 668. The period of prescription for the acquisition of an easement of
light and view shall be counted:
(1) From the time of the opening of the window, if
it is through a party wall; or
(2) From the time of the formal prohibition upon
the proprietor of the adjoining land or tenement, if the window is through a
wall on the dominant estate. (n)
Comment:
1. Easement of light and view is POSITIVE if window is
through a party wall and NEGATIVE if on one’s own wall. (However, even if the
window is on one’s own wall, still the easement would be positive if the window
is on a balcony, or projection extending over into the adjoining land, see TS,
Jan. 8, 1908; Fabie v. Lichauco, 11 Phil. 14).
Article 669. When the distances in article 670 are not observed, the owner of a
wall which is not party wall, adjoining a tenement or piece of land belonging
to another, can make in it openings to admit light at the height of the ceiling
joints or immediately under the ceiling, and of the size of thirty centimeters
square, and, in every case, with an iron grating imbedded in the wall and with
a wire screen.
Nevertheless, the owner of the tenement or property adjoining the wall
in which the openings are made can close them should he acquire part-ownership
thereof, if there be no stipulation to the contrary.
He can also obstruct them by constructing a building on his land or by
raising a wall thereon contiguous to that having such openings, unless an
easement of light has been acquired. (581a)
Article 670. No windows, apertures, balconies, or other similar projections
which afford a direct view upon or towards an adjoining land or tenement can be
made, without leaving a distance of two meters between the wall in which they
are made and such contiguous property.
Neither can side or oblique views upon or towards such conterminous
property be had, unless there be a distance of sixty centimeters.
The non-observance of these distances does not give rise to
prescription. (582a)
Comment: 1. Does not refer to the right to demand Closure because such
right prescribes.
2. Instead, it refers to IMPRESCRIPTIBILITY in the
absence of a notarial prohibition.
3. Building right on boundary line is ALLOWED provided
that NO REGULAR WINDOWS ARE OPENED.
Article 671. The distance referred to in the preceding article shall be
measured in cases of direct views from the outer line of the wall when the
openings do not project, from the outer line of the latter when they do, and in
cases of oblique view from the dividing line between the two properties. (583)
Article 672. The provisions of article 670 are not applicable to buildings
separated by a public way or alley, which is not less than three meters wide,
subject to special regulations and local ordinances. (584a)
Article 673. Whenever by any title a right has been acquired to have direct
views, balconies or belvederes overlooking an adjoining property, the owner of
the servient estate cannot build thereon at less than a distance of three
meters to be measured in the manner provided in article 671. Any stipulation
permitting distances less than those prescribed in article 670 is void. (585a)
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