EASEMENTS,
NUISANCE, MODES OF ACQUIRING OWNERSHIP AND DONATION
(REVISED,
02 SEPTEMBER 2017
Part
I)
Part II and
Updated version of
Modes of Acquiring
Ownership
Immediately follows
ATTY EDUARDO T. REYES, III
(For Fourth Year Section-A,
University of San Agustin School of Law,
General Luna Street, Iloilo City,
School Year 2017-2018 Ist Semester)
TITLE
VII
EASEMENTS OF SERVITUDES
EASEMENTS OF SERVITUDES
CHAPTER
1
Easements in General
Easements in General
SECTION 1
Different Kinds of Easements
Article 613. An easement or servitude is an
encumbrance imposed upon an immovable for the benefit of another immovable
belonging to a different owner.
The immovable in favor of which the easement is established is
called the dominant estate; that which is subject thereto, the servient estate.
(530)
Article 614. Servitudes may also be
established for the benefit of a community, or of one or more persons to whom
the encumbered estate does not belong. (531)
Article 615. Easements may be continuous or
discontinuous, apparent or nonapparent.
Continuous easements are those the use of which is or may be
incessant, without the intervention of any act of man.
Discontinuous easements are those which are used at intervals
and depend upon the acts of man.
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.
Nonapparent easements are those which show no external
indication of their existence. (532)
Article 616. Easements are also positive or
negative.
A positive easement is one which imposes upon the owner of the
servient estate the obligation of allowing something to be done or of doing it
himself, and a 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. (533)
Comments:
1. Positive v.
Negative Easement; Positive v. Negative Obligation?
-In case of violation by servient owner, is preliminary
MANDATORY injunction availing?
-Opening a window on a party wall v. on One’s own wall.
- Related articles: 615, 616, 621 , 660-661 & 668
As explained by Prof. Elmer T. Rabuya on p. 361 Civil Law
Reviewer 1 2009 Edition:
“Positive Easement: One which
imposes upon the owner of the servient estate the obligation of allowing
something to be done on his property (servitutes in patento). In
positive easement, the right of the owner to exclude any person from the
enjoyment of his property, which right is guaranteed in Article 429 of the NCC,
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 the easement of right of
way.
Negative Easement: When it prohibits
the owner of the servient estate from doing something which he could lawfully
do if the easement did not exist ( servitutes in non faciendo). A
negative easement, it must be noted, 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 of the easement did not
exist. An example of a negative easement is an easement not to build higher (altius
non tollendi).
An easement may not consist, however, in the right to demand
that the servient owner do something (servitudes in faciendo). For
if it consists in the right to an act to be done by the owner of the servient
estate, such right is merely in the nature of a jus in personam against
that determinate person. Hence, the true reason why a servitude cannot consistin
faciendo is that, if it did, the right created could not be jus
in rem since the same will not fall over the thing but on the person.
While Article 616 of the New Civil Code may seem to allow a servitudes
in faciendo when it says that positive easement may consist in the
servient owner doing something himself, the easements in faciendo here
are only those which are considered as accessory obligations a praedial servitude.
As aptly observed by Senator Tolentino, citing Ruggiero, as easement can never
consist in a personal prestation to do on the part of the owner of the servient
estate; the obligation imposed upon him is always negative. In
other words, whether the easement is a positive or a negative one, the
obligation imposed upon the servient owner is always a negative one. In
positive easement, for example, the obligation of the servient owner is not to
interfere in the use of his property by the holder of the easement, on the
other hand, the obligation of the servient owner is to refrain from doing
something on his property.”
Article 617. Easements are inseparable from
the estate to which they actively or passively belong. (534)
Comments:
1. “Easements… shall
continue to subsist and shall be held to pass with the title of ownership until
rescinded or extinguished by virtue of the registration of the servient estate
(without the registration or annotation of the easements), or in any other
manner”. (Sec. 39, Land Registration Act- Act 496 regarding Torrens system).
2.
2. See effect of this
on “Apparent Sign of Easement” pursuant to Article 624.; Elements thereof
Article 618. 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. (535)
Article 619. Easements are established
either by law or by the will of the owners. The former are called legal and the
latter voluntary easements. (536)
SECTION 2
Modes of Acquiring Easements
Modes of Acquiring Easements
Article 620. Continuous and apparent
easements are acquired either by virtue of a title or by prescription of ten
years. (537a)
Article 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 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; and in negative
easements, from the day on which the owner of the dominant estate forbade, by
an instrument acknowledged before a notary public, the owner of the servient
estate, from executing an act which would be lawful without the easement.
(538a)
Article 622. Continuous non-apparent
easements, and discontinuous ones, whether apparent or not, may be acquired
only by virtue of a title. (539)
Article 623. 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. (540a)
Article 624. 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. (541a)
Article 625. Upon the establishment of an
easement, all the rights necessary for its use are considered granted. (542)
Article 626. The owner of the dominant
estate cannot use the easement except for the benefit of the immovable
originally contemplated. Neither can he exercise the easement in any other
manner than that previously established. (n)
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.”
Easement of Right of Way under the Public Land Act;
Estoppel by Government; Just Compensation; Solutio
Indebiti
The easement of right of way in favor of the government subsists
despite the enactment of PD 2004 G.R. No. 223334 Resolving the first issue, the
Court rejects petitioner's claim that the subject property is no longer subject
to the 60-meter width easement of right of way in favor of the government.
First, no less than the Order of Award granting petitioner title over the
subject property reads that the parcel of land conferred to him is subject to
the restrictions contained under Sec. 109-114 of CA 141, which necessarily
includes the easement provided in Sec. 112. Notably, petitioner was awarded the
subject property in 1987, while PD 2004, which allegedly removed all
encumbrances and restrictions from awarded properties, was signed into law much
earlier in 1985. This alone raises suspicion on the applicability of PD 2004 to
the subject property. Second, the Court finds no reversible error in the R TC
and CA' s interpretation of the coverage of PD 2004 and RA 730. The title of RA
730 itself supports the rulings of the courts a quo that the laws petitioner
relied upon only cover the sale of public lands for residential purposes and to
qualified applicants without public auction. To quote: REPUBLIC ACT NO. 730 -
AN ACT TO PERMIT THE SALE WITHOUT PUBLIC AUCTION OF PUBLIC LANDS OF THE
REPUBLIC OF THE PHILIPPINES FOR RESIDENTIAL PURPOSES TO QUALIFIED APPLICANTS
UNDER CERTAIN CONDITIONS (emphasis added) It can readily be inferred from the
title of RA 730 that the definite ambit of the law could not be extended to
sales of public lands via public auction, through which mode of disposition
petitioner acquired the subject property. Consequently, when RA 730 was amended
by PD 2004 to the effect of removing encumbrances and restrictions on purchased
properties without public auction, petitioner could not have benefitted from
the same. Lastly, even the contents of RA 730 belie petitioners claim. The
foremost section of the law reads: Section 1. Notwithstanding the provisions of
sections sixty-one and sixty-seven of Commonwealth Act Numbered One hundred
forty-one, as amended by Republic Act Numbered Two hundred ninety-three, any
Filipino citizen of legal age who is not the owner of a home lot in the
municipality or city in which he resides and who has in good faith established
his residence on a parcel of the public land of the Republic of the Philippines
which is not needed for the public service, shall be given Decision 9 G.R. No.
223334 preference to purchase at a private sale of which reasonable notice
shall be given to him not more than one thousand square meters at a price to be
fixed by the Director of Lands with the approval of the Secretary of
Agriculture and Natural Resources. It shall be an essential condition of this
sale that the occupants has constructed his house on the land and actually
resided therein. Ten per cent of the purchase price shall be paid upon the
approval of the sale and the balance may be paid in full, or in ten equal
annual installments. (emphasis added) As can be gleaned, RA 730 was crafted as
an exception to Secs. 61 24 and 6725 of CA 141. These provisions govern the
mode of disposition of the alienable public lands enumerated under Sec. 59 of
the same law.26 Synthesizing the provisions, CA 141 provides that public lands
under Sec. 59 can only be disposed for residential, commercial, industrial, and
other similar purposes through lease or sale, in both cases, "to the
highest bidder. " The conduct of an auction is then required under Secs.
61and67. By way of exception, however, RA 730 now allows the sale of public
lands without public auction to qualified applicants.27 It is through this
exceptional case of purchase of public land without public auction wherein PD
2004 would apply. Petitioner's assertion that both sales of public land with
and without public auction are subsumed under the coverage of PD 2004 is
contrary to the very tenor of the law. Sec. 2 of RA 730, as amended by PD 2004,
is clear and unambiguous: SEC. 2. Lands acquired under the provisions of this
Act shall not be subject to any restrictions against encumbrance or alienation
before and after the issuance of the patents thereon. (emphasis added) Under
its plain meaning, only public lands acquired by qualified applicants without
public auction and for residential purposes are free from any restrictions
against encumbrance or alienation. The provision is 24 SECTION 61. The lands
comprised in classes (a), (b), and (c) of section fifty-nine shall be disposed
of to private parties by lease only and not otherwise, as soon as the
President, upon recommendation by the Secretary of Agriculture and Commerce,
shall declare that the same are not necessary for the public service and are
open to disposition under this chapter. The lands included in class ( d) may be
disposed of by sale or lease under the provisions of this Act (emphasis added)
25 SECTION 67. The lease or sale shall be made through oral bidding; and
adjudication shall be made to the highest bidder. However, where an applicant
has made improvements on the land by virtue of a pennit issued to him by
competent authority, the sale or lease shall be made by sealed bidding as
prescribed in section twenty-six of this Act, the provisions of which shall be
applied wherever applicable. If all or part of the lots remain unleased or
unsold, the Director of Lands shall from time to time announce in the Official
Gazette or in any other newspapers of general circulation, the lease or sale of
those lots, if necessary. (emphasis added) 26 SECTION 59. The lands disposable
under this title shall be classified as follows: (a) Lands reclaimed by the
Government by dredging, filing, or other means; (b) Foreshore; ( c) Marshy
lands or lands covered with water bordering upon the shores or banks of
navigable lakes or rivers; (d) Lands not included in any of the foregoing
classes. 27 RA 730, Sec. 1. Decision 10 G.R. No. 223334 inapplicable to
petitioner's property which was awarded to petitioner not in accordance with RA
730, but through public auction. What is more, the easement of right of way
under Sec. 112 of CA 141 is not subsumed in the phrase "restrictions against
encumbrance or alienation" appearing in the amendment introduced by PD
2004. This becomes obvious upon examining the original text of Sec. 2 of RA
730, before PD 2004 took effect: Sec. 2. Except in favor of the Government or
any of its branches, units, or institutions, lands acquired under the
provisions of this act shall not be subject to encumbrance or alienation before
the patent is issued and for a term of ten years from the date of the issuance
of such patent, nor shall they become liable to the satisfaction of any debt
contracted prior to the expiration of the said period. No transfer or
alienation made after the said period of ten years and within fifteen years
from the issuance of such patent except those made by virtue of the right of
succession shall be valid unless when duly authorized by the Secretary of
Agriculture and Natural Resources and the transferee of vendee is a Filipino
citizen. Every convenyance made shall be subject to repurchase by the original
purchaser or his legal heirs within a period of five years from the date of
conveyance. Any contract or agreement made or executed in violation of this
section shall be void ab initio. Consequently, it was erroneous for petitioner
to harp on Sec. 2 of RA 730, as amended by PD 2004, in his bid to unshackle his
property from its servient state, to release it from the statutory lien
prescribed under Sec. 112 of CA 141. Petitioner is not entitled to just
compensation The Court now determines how the subsisting easement of right of
way in favor of the government bears on petitioner's entitlement to just
compensation. In resolving petitioner's principal claim, we apply the doctrine
in Republic v. Andaya (Andaya). 28 The seminal case of Andaya likewise involved
property subject to the statutory lien under Sec. 112 of CA 141. As held in the
case: It is undisputed that there is a legal easement of right-of-way in favor
of the Republic. Andaya' s transfer certificates of title contained the
reservation that the lands covered thereby are subject to the provisions of the
Land Registration Act and the Public Land Act. Section 112 of the Public Land
Act provides that lands granted by patent shall be subject to a right-of-way
not exceeding 60 meters in width for public highways, irrigation ditches,
aqueducts, and other similar works of the government or any public enterprise,
free of charge, except only for the value of the improvements existing thereon
that may be affected. In view of this, the Court of Appeals declared that all the
Republic needs to do is to enforce such right without having to initiate
expropriation proceedings and without having to pay any just compensation.
Hence, the Republic may appropriate the 701 square meters necessary for the
construction of the floodwalls without paying for it.29 (emphasis added) The
Court affirmed the CA' s interpretation of Sec. 112 of CA 141 and ruled that
the Republic was under no obligation to pay therein respondent Andaya just
compensation in enforcing its right of way. Be that as it may, the Court did
not foreclose the possibility of the property owner being entitled to just
compensation if the enforcement of the right of way resulted in the
"taking" of the portions not subject to the legal easement.
Jurisprudence teaches us that "taking," in the exercise of the power
of eminent domain, "occurs not only when the government actually deprives
or dispossesses the property owner of his property or of its ordinary use, but
also when there is a practical destruction or material impairment of the value
of his property. " 30 As in Andaya, even though the Republic was not
legally bound to pay just compensation for enforcing its right of way, the
Court nevertheless found that its project to be undertaken-the construction of
floodwalls for Phase 1, Stage 1 of the Lower Agusan Development Project-would
prevent ingress and egress in Andaya' s private property and tum it into a
catch basin for the floodwaters coming from the Agusan River, effectively
depriving him of the normal use of the remainder of his property. To the mind
of the Court, this resulted in a "taking" of what was left of
Andaya's property, entitling him to consequential damages, awarded by the Court
in the form of just compensation. To demonstrate in concrete terms, the
property involved in Andaya contained a total area of 10,380 square meters,
which can be divided in the following manner: 1. The 4,443 square meter portion
subject to the easement of right of way, which can further be subdivided into
two: a. The 701 square meter portion corresponding to total area of the
10-meter easement actually utilized by the Republic; and b. The 3,742 square
meter portion corresponding to the unutilized area of the portion subject to
the 60-meter width easement; and IL The remainder 5,937 square meter portion
not subject to the government's easement of right of way.
The 701 square meter easement in Andaya
was the site for the floodwall project. This was the extent of the right of way
enforced by the government. The Court affirmed the CA ruling that the Republic
may acquire the 701 square meter property free of charge, save only for the
value of the improvements that may be affected. As previously discussed, the
floodwall project on the 701 square meter property would have deprived Andaya
of the normal use of the remainder, i.e., both the 3,742 and the 5,937 square
meter residual portions. But of the two, the Court held that Andaya is entitled
to just compensation only for the 5,937 square meter span. The Court ratiocinated
that though unutilized, the 3,742 square meter portion is still covered by Sec.
112 of CA 141 that limits the property owner's compensation to the value of the
improvements, not of the value of the property per se. To recapitulate, two
elements must concur before the property owner will be entitled to just
compensation for the remaining property under Sec. 112 of CA 141: (1) that the
remainder is not subject to the statutory lien of right of way; and (2) that
the enforcement of the right of way results in the practical destruction or
material impairment of the value of the remaining property, or in the property
owner being dispossessed or otherwise deprived of the normal use of the said
remainder. This doctrine in Andaya was reiterated in the recent Republic v.
Regulto. 31 We now apply the same parameters for determining petitioner's
entitlement to just compensation in the case at bar. Recall that the subject
property in this case is a 400 square meter parcel of land. The 223 square
meter portion of the subject property was traversed by respondents' Metro
Manila Skyway Project. And as noted by the CA, the subdivision plan shows that
the covered area corresponds to the widths of 13.92 meters and 13.99 meters,
well within the 60-meter width threshold provided by law. Respondents are then
not under any legal obligation to pay just compensation for utilizing the 223
square meter portion pursuant to the Republic's right of way under Sec. 112 of
CA 141, and in accordance with our ruling in Andaya. Anent the remaining 177
square meters of the 400 square meter lot, suffice it to state that it was
never proved that the said area was not subject to the statutory lien. Neither
was it established that despite not having been utilized for the Metro Manila
Skyway Project, the enforcement of the easement resulted in the
"taking" of the remaining property all the same. There is then no
evidentiary basis for awarding petitioner just compensation, as correctly ruled
by the RTC and the CA. However, petitioner remains the owner of the said 177
square meters and can fully exercise all the rights of ownership over the same.
Respondents are barred by estoppel from recovering the initial payment of
Pl,480,000 from petitioner G.R. No. 223334 Guilty of reiteration, Sec. 112 of
CA 141 precludes petitioner from claiming just compensation for the
government's enforcement of its right of way. The contract allegedly entered by
the parties for the government's acquisition of the affected portion of the
property in exchange for just compensation is then void ab initio for being
contrary to law. 32 Consequently, petitioner has no right to collect just
compensation for the government's use of the 223 square meter lot. Anent the
Pl,480,000 partial payment already made by respondents, such amount paid shall
be governed by the provisions on solutio indebiti or unjust enrichment.
"Solutia indebiti" arises when something is delivered through mistake
to a person who has no right to demand it. It obligates the latter to return
what has been received through mistake. As defined in Article 2154 of the Civil
Code, 33 the concept has two indispensable requisites: first, that something
has been unduly delivered through mistake; and second, that something was
received when there was no right to demand it. 34 As discussed above,
petitioner was never entitled to collect and receive just compensation for the
government's enforcement of its right of way, including the Pl,480,000 payment
made by respondents. For its part, the government erroneously made payment to
petitioner because of its failure to discover earlier on that the portion of
the property acquired was subject to a statutory lien in its favor, which it
could have easily learned of upon perusal of petitioner's Order of Award. These
circumstances satisfy the requirements for solutio indebiti to apply.
Regardless, respondents' action to compel petitioner to return what was
mistakenly delivered is now barred by the doctrine of estoppel. The doctrine is
based upon the grounds of public policy, fair dealing, good faith and justice,
and its purpose is to forbid one to speak against his own act, representations,
or commitments to the injury of one to whom they were directed and who
reasonably relied thereon. The doctrine of estoppel springs from equitable principles
and the equities in the case. 35 As a general rule, the State cannot be barred
by estoppel by the mistakes or errors of its officials or agents. But as
jurisprudence elucidates, the doctrine is subject to exceptions, viz: 32
Article 1409. The following contracts are inexistent and void from the
beginning: (1) Those whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy. 33 Article 2154. If something is
received when there is no right to demand it, and it was unduly delivered
through mistake, the obligation to return it arises. (34 Metropolitan Bank
& Trust Company v. Absolute Management Corporation, G.R. No. 170498,
January 9, 2013, 688 SCRA 225, 238. 35 Megan Sugar Corporation v. Regional
Trial Court of Jloilo, Branch 68, Dumangas, lloilo, G.R. No. 170352, June 1,
2011, 650 SCRA 100, 110. /- Decision 14 G.R. No. 223334)
Estoppels against the public are little
favored. They should not be invoked except [in rare] and unusual circumstances,
and may not be invoked where they would operate to defeat the effective
operation of a policy adopted to protect the public. They must be applied with
circumspection and should be applied only in those special cases where the
interests of justice clearly require it. Nevertheless, the government must not
be allowed to deal dishonorably or capriciously with its citizens, and must not
play an ignoble part or do a shabby thing; and subject to limitations ... , the
doctrine of equitable estoppel may be invoked against public authorities as
well as against private individuals. 36 In this case, petitioner was
erroneously paid Pl,480,000 on August 14, 1997 when respondents appropriated
the amount in his favor. However, because of respondents' representation that
the amount was a mere downpayment for just compensation, petitioner never
objected to the taking of his land and peacefully parted with his property,
expecting to be paid in full for the value of the taken property thereafter. As
the events unfolded, respondents did not make good their guarantee. Instead,
they would claim for the recovery of the wrongful payment after almost twelve
(12) years, on July 9, 2009, as a counterclaim in their Supplemental Answer.
Indubitably, respondents are barred by estoppel from recovering from petitioner
the amount initially paid. A modification of the assailed CA ruling is,
therefore, in order. WHEREFORE, premises considered, the Court resolves to
PARTIALLY GRANT the petition. The award to respondents for the recovery of the
Pl ,480,000 initial payment is hereby DELETED as their right to a refund has
already prescribed. Petitioner Danilo Bartolata remains the owner of the 177
square meter portion and can exercise all rie:hts of ownership over the said
lot. SO ORDERED.
- DANILO BARTOLATA,
represented by his Attorney-in-Fact
REBECCA R. PILOT and/or
DIONISIO P. PILOT,
Petitioner,
- versus -
REPUBLIC OF THE
PHILIPPINES, DEPARTMENT
OF PUBLIC WORKS AND
HIGHWAYS, DEPARTMENT OF
TRANSPORTATION AND
COMMUNICATIONS, and TOLL
REGULATORY BOARD,
G.R. No. 223334
Promulgated:
Respondents. June 7, 2017
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
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.
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
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)
Art 666.
the right he may have in the co-ownership, without interfering
with the common and respective uses by the other co-owners. (579a)
[2] See Almendras v. CA, G.R. No. 11064, March 13, 1997;
Quimen v. CA, 70 SCAD 776, G.R. No. 112331, May 21, 1996
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