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LEGAL EASEMENT

Legal easement

- created by operation of law

Voluntary easment

- Agreement or will between the parties

QUESTION: Is there a need for you to establish

necessity in a voluntary easement?

ANSWER: No. Necessity is NOT required. The fact that

there is an agreement, regardless if there’s already an

access of public highway, it is unnecessary to prove

that there is another adequate outlet.

Art. 637. Lower estates are obliged to receive the waters

which naturally and without the intervention of man

descend from the higher estates, as well as the stones or

earth which they carry with them.

The owner of the lower estate cannot construct works

which will impede this easement; neither can the owner of

the higher estate make works which will increase the

burden

QUESTION: How natural is natural?

ANSWER: Without intervention of man,

QUESTION: Flood for example, coming from

mountain, if it cascades to lower lands. Will you say

that flood is not covered since this is a result of the

cutting of trees?

ANSWER: For as long as it is NOT shown that the

course of the water is DELIBERATELY intended to

fall into your property, then ART. 637 governs. So

ART. 637 covers that situation (the flood situation).

Art. 638. The banks of rivers and streams, even in case they

are of private ownership, are subject throughout their

entire length and within a zone of three meters along their

margins, to the easement of public use in the general

interest of navigation, floatage, fishing and salvage.

modified by Article 51 of the Water Code of

the Philippines (PD no 1067).

o 3 meters – urban

o 20 meters –agricultural

o 40 meters – forest (**Article 51. The banks of rivers and streams and the

shores of the seas and lakes throughout their entire length

and within a zone of three (3) meters in urban areas,

twenty (20) meters in agricultural areas and forty (40)

meters in forest areas, along their margins are subject to

the easement of public use in the interest of recreation,

navigation, floatage, fishing and salvage. No person shall

be allowed to stay in this zone longer than what is

necessary for recreation, navigation, floatage, fishing or

salvage or to build structures of any kind.)

QUESTION: If there’s an easement for public use,

What will be the extent? Use and enjoyment? What

kind of enjoyment?

ANSWER: It means that other persons should be

allowed unhampered access even if it’s in front of

your property. You, the owner, are not allowed to

make constructions, and you should allow passage of

others since its public use.

Art. 640. Compulsory easements for drawing water or for

watering animals can be imposed only for reasons of public

use in favor of a town or village, after payment of the

proper indemnity.

Art. 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

Art. 644. The easement of aqueduct for private interest

cannot be imposed on buildings, courtyards, annexes, or

outhouses, or on orchards or gardens already existing.

Art. 645. The easement of aqueduct does not prevent the

owner of the servient estate from closing or fencing it, or

from building over the aqueduct in such manner as not to

cause the latter any damage, or render necessary repairs

and cleanings impossible.

Art. 646. For legal purposes, the easement of aqueduct shall

be considered as continuous and apparent, even though the

flow of the water may not be continuous, or its use depends

upon the needs of the dominant estate, or upon a schedule

of alternate days or hours.

(NOTE: Just because there is this provision which seems to

suggest that you are allowed to make irrigation in a river, do

NOT rely solely on the civil code. Before you can make

obstructions like utilization of water, and it’s NOT for

personal consumption, you have to secure a water permit

from the National Water Resources Council or its subsequent

agency (kay usab2 pangan ani nla) for commercial purposes.

If personal, NO need. In terms of irrigation, to the National

Irrigation Administration, otherwise, not securing permit will

be considered a NUISANCE.)

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EASEMENT OF RIGHT OF WAY

Requisites:

1. The dominant estate is surrounded with

other estates and no adequate outlet or

access to the highway

2. After the payment of proper indemnity

3. Isolation is NOT due to acts of proprietor

of the dominant estate

4. Must be least prejudicial to the servient

estate and so far as it is consistent that

shortest distance may be established

(22:19)

(Put N. B. in your notes “Nota Bene”. A

favorite area in the bar is to enumerate

the essential requisites).

QUESTION: What do you mean by adequate outlet? If

the one asking for an easement found it very difficult

and inconvenient to avail existing outlet, would we

consider it as inadequate such that he should be

entitled to a grant of right of way assuming that he

can prove the other requisites?

ANSWER: No.

Ramos Sr. vs. Gatchalian Realty Inc.

complaint for an easement of right of way

was filed by Ramos coz Gatchalian Realty Inc

built high concrete wall, thus blocking the

former’s entrance/exit to public highway

Issue: WON Ramos have successfully shown

that all requisites for the grant of easement

are present

Ramos contends that other road is “bumpy &

impassable especially during rainy seasons

because of flood waters, mud & tall ‘talahib

grasses’.

HELD: The fact that it’s still undeveloped &

causes inconvenience when he uses it does

not bring him within the ambit of the legal

requisite. Mere convenience for the

dominant estate is NOT enough to serve as

its basis. There must be real, NOT a fictitious

or artificial necessity for it.

(NOTE: If you are the plaintiff, do not be discouraged if

defendants were able to prove that there is already an

existing outlet, show and prove that outlet is NOT adequate

for your needs.)

QUESTION: Does the law provide for a specific width

of easement so that it can be considered as adequate?

ANSWER: Depends on the circumstances (but this is

very general, be specific. What does the law provide?)

As found in Art. 651, “that which is sufficient for the

needs of the dominant estate” and “may

accordingly be changed”

Art. 651. The width of the easement of right of way shall be

that which is sufficient for the needs of the dominant estate,

and may accordingly be changed from time to time

QUESTION: So there is no fixed width. Do you

anticipate the problem here in relation to other

requisites? “Depending on the needs of the dominant

estate” vs. “Least prejudicial to the servient owner”?

ANSWER:

Encarnation vs. CA

Encarnation asked for 1 ½ increase width area in the

right of way (coz jeep couldn’t pass through), that may

cause a reduction of use of the property of the

servient estate

Issue: WON Encarnation is entitled to a widening of an

already existing easement of right-of-way

HELD: He is entitled. And the court reconciled. The

court suggested that dominant owner

(Encarnation) give up a portion of his estate so it

is not prejudicial to the servient estate (this is to

resolve conflict between “depending on the needs of the

dominant estate” vs. “least prejudicial to the servient

owner).

(NOTE: Right-of-way cases involve issues that are purely factual.

Issues like this should be solved in a case to case basis. Kung walay

ikahatag ang dominant, we will cross the bridge when we get there.

Requirement on adequate outlet involves purely factual issues as well.

And how adequate is adequate? No amount of the Civil Code provision

can resolve that since it is an issue of fact.)

Quimen v CA

Issue: What should be preferred, as between a right-

of-way that would demolish a store of strong

materials, vs. another right-of-way which although

LONGER, will ONLY require an avocado tree to be

cut down?

HELD: In easement of right of way that easement

where the way is SHORTEST and will cause the

LEAST PREJUDICE shall be chosen. If the two

circumstances do not occur, LEAST PREJUDICE

PREVAILS over shortest distance.

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NOTE: Mere inconvenience alone is NOT allowed:

Bangag, lapok, ngitngit . If you are lawyer, DO NOT

harp on just mere inconvenience (that is the only

one you relied upon); HARP ON THE ISSUE THAT

IT IS NOT ADEQUATE

Costabella Corporation vs. CA

Private respondents assailed the petitioner’s closure

of the original passageway which they claimed to be

an “ancient road right of way” that had been existing

before WWII and since then had been used by them in

going to and from Lapu-lapu city.

Issue: WON respondents as owners of adjoining

properties had acquired an easement of right of way,

in the form of passageway, on the petitioner’s

property.

HELD: Easement of right-of-way is discontinuous and

as such, cannot be acquired by prescription.

Moreover, true standard of a grant of legal right is

ADEQUACY, not convenience. Respondents failed to

prove the requisites. They failed to indicate in the

complaint or manifest that they were willing to

indemnify (2nd req), and failed to prove that isolation

of their property was not due to their predecessor’s-

in-interest’s own acts (3rd req). Lastly, they failed to

allege that passageway they seek to be re-opened is at

point least prejudicial (4th req).

Filing a case for easement of right of way

TITLE of your case:

“DECLARATION OF AN EASEMENT OF

RIGHT OF WAY”

-the court will only confirm that

requisites are there. It CANNOT make an

easement where requisites are not there.

In other words, dili ka imandatory order

sa court na taga-an ug easement. All the

court will do is to just to receive the

evidence whether requisites are

established. That is why the dispositive

portion would state that “it is hereby

declared..” NOT “it is hereby ordered..”

(In Declaration of Easement of right of way a.k.a legal

easement, your allegations must be tailored in such a manner that

they jive with the requisites. In your complaint, do not just state the

requisites (writing merely the requisites) since it will be considered as

merely conclusions of law. )

QUESTION: In the requiste/ criterion on Indemnity,

how will you be able to comply with this if at the time

you filed a complaint, you have not yet known the

value of the property? And failure to allege is a fatal

mistake? Like in the Costabella case, where it states

“Besides, plaintiff in this case did not allege in the

complaint their readiness to pay the appropriate

indemnity”?

ANSWER: Allege in the complaint that you are “ready,

able, and willing to pay the indemnity that will be

ordered by the court”. If this is not in the complaint,

complaint suffers a fatal defect which is failure to

state a cause of action.

Art. 652. Whenever a piece of land acquired by sale,

exchange or partition, is surrounded by other estates of the

vendor, exchanger, or co-owner, he shall be obliged to grant

a right of way without indemnity.

In case of a simple donation, the donor shall be indemnified

by the donee for the establishment of the right of way.

(567a)

Art. 653. In the case of the preceding article, if it is the land

of the grantor that becomes isolated, he may demand a

right of way after paying a indemnity. However, the donor

shall not be liable for indemnity.

QUESTION: You purchased a property which is an

interior lot, surrounded by other immovables owned

by the seller, can you compel the said seller to give

you a right of way? And, are you bound to pay the

seller the indemnity?

ANSWER: You can demand and you are NOT bound

to pay the indemnity.

QUESTION: You’re given a property pursuant to a

Deed of donation, by the donor and the donated lot is

surrounded by other immovables owned by donor,

can you compel the said donor to give you a right of

way? And, are you bound to pay the donor the

indemnity?

ANSWER: It depends. Qualify since there are 3 types

of donation.

a. Simple donation- PAY/ indemnify (ex:

pure love and affection, gratuitous,

gugmang ga-uros2x!),

b. Onerous- indemnify (not governed by

Title3, book2 of NCC. ex: something

donated, however there’s a burden

imposed, I donate to you, but three years

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after I donate, you must construct a

building)

c. Remuneratory- (ex: not actually no

consideration totally, there is a

consideration only that the reason for

giving consideration is NOT a

demandable debt. Like you saved the

life of a person and later on, the person

donated his lot to you)

In Easement, there is no transfer of ownership, no

transfer of possession, but you are required to pay an

indemnity as the dominant owner.

QUESTION: What happens if there’s no longer any

need to avail of the easement? Can you get back

money that you paid?

ANSWER: Owner of the servient estate may demand

that the easement be extinguished, returning what he

may have received by way of indemnity

Art. 655. If the right of way granted to a surrounded estate

ceases to be necessary because its owner has joined it to

another abutting on a public road, the owner of the servient

estate may demand that the easement be extinguished,

returning what he may have received by way of indemnity.

The interest on the indemnity shall be deemed to be in

payment of rent for the use of the easement.

The same rule shall be applied in case a new road is opened

giving access to the isolated estate.

In both cases, the public highway must substantially meet

the needs of the dominant estate in order that the easement

may be extinguished.

1. File appropriate case to declare easement as

extinguished

2. Assuming it will be, return the indemnity

QUESTION: How about the use? Compensation

for the use of the easement?

ANSWER: Interest

Unisource Commercial &Dev’t Corp vs. Joseph Chung

petitioner filed a Petition to Cancel the Encumbrance

of Voluntary Easement of Right of Way on the ground

that the dominant estate has an adequate access to a

public road which is Matienza Street

HELD: The opening of an adequate outlet to a highway

can extinguish ONLY LEGAL OR COMPULSORY

easements, NOT VOLUNTARY easements like in the

case at bar. A voluntary easement of right of way, like

any other contract, could be extinguished only by

mutual agreement or by renunciation of the owner of

the dominant estate. (Remember the Bogo-Medellin

case)

SECTION 4. - Easement of Party Wall

Art. 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.

QUESTION: What is the nature? What is the

reason why it is an easement?

ANSWER: It partakes of the nature of co-

ownership (not really co-ownership coz here, you

can already determine state of ownership and

unlike co-ownership, here you can use it

exclusively for your own use).

Art. 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.

If there’s a wall, it’s NOT automatic na

party wall nana- not necessarily.

(Example of party wall: Dividing walls of adjoining buildings up

to the point of common elevation–you can presume that party

wall exist, but before you apply presumption, make sure that if

it’s INSIDE the dividing walls because if its inside the boundary

of one estate, its NOT a PARTY wall.( It must be right there sa

boundary jd, dli inside!)

Art. 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;

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(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.

QUESTION: There’s a wall right there at the

boundary- but there are windows. Why is it you

cannot infer that there’s a party wall if there are

openings?

ANSWER: No basis that it is for the benefit of

both. It is possible that it is built at the expense

of just one person.

Art. 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.

Dominga Lao vs Heirs of Alburo

Petitioners filed for registration of a parcel of land,

they are contesting ownership of a stonewall.

HELD: Stone wall is NOT a party wall since it belongs

solely to the applicants/petitioners.

1. Enclosing wall is much higher than the adjoining

bldg of the objectors.

2. Along the top of the wall there’s a gutter which

catches the rain water from the eaves of the roof

of the applicant’s bldg

3. ½ of the top of said wall is covered by the roof of

the applicant’s bldg

4. Supports of said wall project toward the side of

the applicant’s land

5. None of the buttresses are on the objector’s lot

6. Stones of the wall are bound/inset in the rear

enclosing wall of the applicant’s property in such

wise that the two walls that inclose the lot form

but a single construction (NOTE: Sometimes, ang mga tao, magalalis sa wall. Upon

reaching the court, this is how u prove it. ASSERT THAT YOU’RE

THE OWNER. )

SECTION 5. – EASEMENT OF LIGHT AND VIEW

Art. 667. No part-owner may, without the consent of the

others, open through the party wall any window or

aperture of any kind.

QUESTION: Why?

ANSWER: Because a party wall is supposed to

benefit both. Therefore, no one could exclusively

own a party wall, unless with consent of the other.

(NOTE: Co owners mu sa party wall. “Bai, pwede ni magama kog

opening bai humon naq bintana, then the other allows it, you

can do it. In fact, you can even assert later on that you have

acquired light or view reckoned from the time you made an

opening. Because when you make an opening in a party wall, at

the time you make such opening , there’s already an

encumbrance. Why? You do not exclusively own the wall.)

Party wall- opening it already imposes an

encumbrance, since you do not solely own it (positive

easement).

Your exclusive, own wall- encumbrance &

prescriptive period will only start if you have served a

prohibition to adjoining tenement i.e. do not build

higher structure!It’s NOT from the time you make an

opening, coz you are merely exercising your right of

ownership (negative easement)

Art. 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.

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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.

Cortes vs Palanca Yu-tibo

Issuues: WON easement is positive or negative and

when did the prescriptive period started to run?

HELD: The easement of light in the case of windows

opened in one’s own wall is negative, and CANNOT be

acquired by prescription EXCEPT where sufficient

time of possession has elapsed after the owner of the

dominant estate, by formal act, has prohibited the

owner of the servient estate from doing something

which would be lawful but for the easement.

Plaintiff is incorrect in saying that prescription starts

when the window was made and acknowledged by

the adjacent owner. Wala ka, you cannot claim

prescription, since you failed to serve notarial

prohibition!

(Easement of Light- right to make an opening but opening made

is NOT for purposes of viewing.)

Art. 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.

(You want to make a wall right there in the boundary-pwede na but

you cannot make an opening such that it would have the direct view

on another’s estate. Pero wala nagpasabot na bisag gamay you are

not allowed, since Art 669 allows you so.)

To types:

1. Easement of light- pra nay kahayag, right to

make an opening but opening made is NOT

for purposes of viewing

2. Easement of light and view- make

projections, to make regulatory windows.

Art. 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.

Easement of light and view- acquired by title and

prescription.

QUESTION: Violation of Art 660, you did not

observe 2 meter setback rule. Notwithstanding

that, you still made openings, Can it be closed?

ANSWER: Yes.

QUESTION: But what if that opening in violation

of Art. 660 was there for 20years, and on the 20th

year, adjacent owner woke up and realized you

violated, so he filed a case to close. Can you

compel closure?

ANSWER: Make a distinction between

acquisition of easement of light and view vs.

action to compel closure.

Just because you can no longer file an action to

compel the closure doesn’t mean that you have

already acquired prescription.

Right of action which is an action founded

by law had already prescribed(10 years

prescription.)

He didn’t acquire prescription due to

non-observance of easement, and the

remedy is to make a higher structure

and block that opening anytime.

Art. 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.

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QUESTION: What is meant by whenever any title

or right has been acquired?

ANSWER: Have presumed that someone already

has easement.

QUESTION: What is obligation of the servient

estate if the other already acquired an easement?

ANSWER: YOU STILL CAN build, however, set

back 3 meters. It’s the height of injustice if he

cannot construct a bldg since prohibition is not

absolute.

SECTION 6. - DRAINAGE OF BUILDINGS

Art. 674. The owner of a building shall be obliged to

construct its roof or covering in such manner that the rain

water shall fall on his own land or on a street or public

place, and not on the land of his neighbor, even though the

adjacent land may belong to two or more persons, one of

whom is the owner of the roof. Even if it should fall on his

own land, the owner shall be obliged to collect the water in

such a way as not to cause damage to the adjacent land or

tenement. (586a)

Art. 675. The owner of a tenement or a piece of land, subject

to the easement of receiving water falling from roofs, may

build in such manner as to receive the water upon his own

roof or give it another outlet in accordance with local

ordinances or customs, and in such a way as not to cause

any nuisance or damage whatever to the dominant estate.

(587)

Art. 676. Whenever the yard or court of a house is

surrounded by other houses, and it is not possible to give an

outlet through the house itself to the rain water collected

thereon, the establishment of an easement of drainage can

be demanded, giving an outlet to the water at the point of

the contiguous lands or tenements where its egress may be

easiest, and establishing a conduit for the drainage in such

manner as to cause the least damage to the servient estate,

after payment of the property indemnity

You want a canal no obstruction, your cause of action

is not right of way but easement of drainage or

easement of aqueduct.

[Here is an interesting question, do you remember last time I pointed

out a very common phenomenon in the province where owners of

these lots sell their properties to moneyed individuals, constructing

their respective houses, thus not giving access to fishermen towards

the sea. D’you see that one? Very common in the place. Everybody is

selling their properties. Once these lots are bought, iyahay nana ang

tagiya ug put up, panindotay ug buildings. Mga poor fishermen wala

nay access, can’t even find space to park their respective bangkas .

What is the cause of action there? Assuming your approach. Try to

look. Coz it cannot be right of way, cannot be drainage, we cannot

also enforce that observance of certain distance (unless you can prove

there are other structures there). I’m very sure there’s a special law

that governs this situation. Well, just relate this problem to access of

drainage.]

SECTION 7. - INTERMEDIATE DISTANCES

and Works for Certain Constructions and Plantings

Art. 679. No trees shall be planted near a tenement or piece

of land belonging to another except at the distance

authorized by the ordinances or customs of the place, and,

in the absence thereof, at a distance of at least two meters

from the dividing line of the estates if tall trees are planted

and at a distance of at least fifty centimeters if shrubs or

small trees are planted.

Every landowner shall have the right to demand that trees

hereafter planted at a shorter distance from his land or

tenement be uprooted.

The provisions of this article also apply to trees which

have grown spontaneously. “

SITUATION: Coconut tree na gibutang sa boundary

(Unta, it should not be put on the boundary)

REMEDY: Demand trees be uprooted. If you’re the

one inversely affected, you cannot go intrude the

property and uproot the tree.

[**If you read the articles, oust in general manner. If you want to be

further guided, it is advisable for you to consult and research on

appropriate zoning ordinance- this is a local law which you can find

in the city hall/ municipal hall. When you become lawyers, ayawg

pagsalig sa Civil Code, it is only a general law. Sometimes cases are

won not on the basis of Civil code, but on local ordinances.]

QUESTION: Now, there’s a provision here which

occasionally comes out in the bar- governing law

when a branch extends upon another’s property

What right if there is any, does the owner of the estate

have?

ANSWER: right to demand that they be cut off insofar

as they may spread over his property (Art 680).

Art. 680. If the branches of any tree should extend over a

neighboring estate, tenement, garden or yard, the owner of

the latter shall have the right to demand that they be cut off

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insofar as they may spread over his property, and, if it be

the roots of a neighboring tree which should penetrate into

the land of another, the latter may cut them off himself

within his property.

[if branch only, you can demand to be cut. Do not cut it

yourself, and worse, ang pinutol gihimo ug firewood. If I’m

your enemy I’ll file you qualified theft. This in-law of

adjacent owner cut the branches, after that, gathered

branches, place it there in his estate. Asawa nako, kay ako

abogado lagi, nagtuo gamhanan ang bana, she was asking

me, so I said, “Oh well, file a case for theft.” I filed a case, I

was not the one handling, since accused was a former

client of mine, so I asked my partner to handle it. I’m the

one taking photos of those cut branches. Lawyer and

Photographer into one.]

Art. 681. Fruits naturally falling upon adjacent land belong

to the owner of said land.

This is an example of mode of acquiring ownership

through a law.

SECTION 8. – EASEMENT AGAINST NUISANCE

[Some authors questioned why nuisance is an easement which is

actually a negative easement because you are prohibited. If you will

examine, preventing another from doing something which he could

have lawfully done. If you maintain a nuisance, it cannot be said that

you are doing something lawful. Nuisance can never be lawful. This

goes again doing something by preventing.]

LATERAL AND SUBJACENT SUPPORT

[Just imagine: What will you feel if you’re on the 33rd floor,

and there’s the excavation below? Matay, gamay aning

earthquake,nah. It’s very dangerous. And the property nearby

will lose its support. Same with a case in digging tunnels.

Remember the case? Okay rata kung lawm, that’s why it took

time for owners to know. ]

QUESTION: It happened here, former BBRC, adjacent

na bahay, cave in, ang entire living room tua nas

lalom. So, what’s the cause of action?

REEMEDY: Injunction is always the remedy. Never

mind damages.

[Unsaon manang damages kung nana kas ilalom? Or Patay

nka?Kabalo mu unsaon pagwenta ug damages? Actual, receipts.

Prospective lawyer (tag-as mug score sa Property, dako2 kag chance

ma abogado ka. Laws of expected income. Nay formula ana.) Pero

bulakbol ka na estudiante, reflected kapila nafail, he can never be a

lawyer. An injunction- pre-emptory writ, Restrainig order, undang

automatic bsta urgent kaayo ang relief. The only thing that cannot be

restrained is your loose bowel movement . ]

VOLUNTARY EASEMENT

voluntarily constituted by owner of the servient

estate.

QUESTION: What are the things to be remembered?

ANSWER: See Unisource Commercial &Dev’t Corp vs. Chung.

Extinguishment:

1. mutual agreement or

2. by renunciation by the owner of the dominant

estate.

Three kinds of Easement- Legal, Voluntary and

Mixed (partly by law, partly by agreement).

Villanueva v. Velasco

Unknown to Villanueva, even before he bought the

land, there was already a final decision enforcing the

right to easement where a small house encroaching

the same was ordered demolished

Initially there was an agreement. Then there was a

change of ownership (servient dili murespecto),

forcing dominant to confirm existence of voluntary.

Was confirmed by court and upheld by court. Initially

voluntary, you can go to court to have existence

confirmed.

Issue: WON easement on the property binds

petitioner

HELD: Easement in the case at bar is BOTH legal and

voluntary. Even if it was not annotated in the title of

the land and the notice of lis pendens was not

recorded with the RD, in legal easement, the servient

estate is bound to provide the dominant ingress from

and to the public highway. Further, the decision

enforcing the right of easement against previous

owner binds the successor-in-interest.

NUISANCE

Article 694. A nuisance is any act, omission, establishment, business, condition of property, or anything else which:

(1)Injures or endangers the health or safety of others; or (2)Annoys or offends the senses; or (3)Shocks, defies or disregards decency or morality; or (4)Obstructs or interferes with the free passage of any public highway or street, or any body of water; or (5) Hinders or impairs the use of property.

Omission- failure to cut tree which is endanger in

falling. ( You have a liability, that is a nuisance since it

inures and endangers.) Examples :

1. Health and safety- meat wala gikuan sa slaughterhouse.

2. Annoys senses- Maybe poultry house.

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3. Shocks- house of prostitution. (But in other jurisdiction, there is

such a thing as red light district, giving numbers openly. Dinhi,

secreto2x man.)

4. Obstructs- structures along riverbanks, or basketball court in

the middle of the street. (haya is as well a nuisance-but tolerated

nalang. Even one structure in Argao- house ni extend sa dagat,

all the way to the seawater, that can qualify as nuisance.)

Classifications

o Public - affects a community or neighborhood

or any considerable number of persons

o Private -

Article 695. Nuisance is either public or private. A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage upon individuals may be unequal. A private nuisance is one that is not included in the foregoing definition. And as Per se or Accidens.

QUESTION: What’s the reason for the classifying?

ANSWER: To determine remedies and who is entitled

to commence.

QUESTION: Action to stop nuisance?

ANSWER: ABATEMENT OF NUISANCE.

Article 701. If a civil action is brought by reason of the maintenance of a public nuisance, such action shall be commenced by the city or municipal mayor

QUESTION: A piggery nearby, considering that it is a

public nuisance, and abatement will only be

commenced by mayor. What if mayor will not do

anything? And granted that you filed a case, and the

other party will say “dismissed mani in accordance of

Art. 701”. So as counsel, what will be your rebuttal?

ANSWER: My client is filing this on the strength of

Art.703, that it is “specially injurious to himself”

(Ikaw na bahala, ex. Asthmatic guru ka).

Article 703. A private person may file an action on account

of a public nuisance, if it is specially injurious to himself.

Per se (nuisance at law)- at all times regardless of

circumstances , nuisance at law ( Bar question- Classify whether nuisance per se and nuisance per

accidens.

1. Gambling- per se 2. House of ill-refute- per se 3. Piggery- per accidens 4. Poultry house.)- per accidens

Article 699. The remedies against a public nuisance are:

(1)A prosecution under the Penal Code or any local ordinance: or

(2)A civil action; or

(3) Abatement, without judicial proceedings.

QUESTION: In abatement without judicial

proceedings, (relating it with nuisance per se, usually

done with the mayor). Just issuing an order of closure,

would it be violative?

ANSWER: It is not, provided that it is clearly shown

that it is

1. Public nuisance and

2. Nuisance per se

Moreover, act is justified through the exercise of the

general welfare clause under Section 16 of the

LGC.

(1)A prosecution under the Penal Code or any local ordinance: or

o -needs proceeding.

Ex:

1. Gambling house -anti-gambling

provision.

2. If you are maintainer of prostitution

house “mamasan”- trafficking,

3. Prosecution for malicious mischief

(property).

Per accidens (nuisance in fact)– nuisance only due to

or under certain circumstances (poultry house,

piggery which are legitimate business but becomes

nuisance for example- situated in an area which is

residential, or violates zoning ordinance.

QUESTION: Who is liable?

ANSWER: Even successive owner can be held liable if

it can be shown that he does not take action to

voluntarily abate the nuisance.

Difference between the remedy

1. Pe se- summary abatement

2. Per accidens-always requires judicial order. (What’s the purpose of filing the case? Of course, for due process. The

fact that it is only nuisance in certain circumstances, so there is a

need or it shall be proven)

Gregoria Francisco v CA

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quonset building (semicylindrical) purchased by

Gregoria Francisco,which was ordered demolished by

respondent Municipal Mayor, Valencia

Issue: whether or not Respondent Mayor could

summarily, without judicial process, order the

demolition of petitioner's quonset building.

HELD: Respondent Mayor was NOT VESTED with

power to order summarily, and without any judicial

proceeding, the demolition of the quonset building,

which was not a nuisance per se and that petitioner

is in legal possession of the land on which the building

stands by virtue of the permit issued by the Philippine

Ports Authority.

Parayno vs Jovellanos

Petitioner was the owner of a gasoline filling station

and some residents petitioned the Sangguniang Bayan

for the closure or transfer of the station to another

location for the alleged hazardous effects of the gasoline

station to the lives and properties of the people

The Sangguniang Bayan recommended to the Mayor

the closure or transfer of location of petitioner's

gasoline station.

Resolution No. 50 was created, it declared- existing

gasoline station is a blatant violation and disregard of

existing law namely the Official Zoning Code

Issue: WON the closure/transfer of her gasoline filling

station by respondent municipality was an invalid

exercise of the latter's police powers

HELD: Respondent municipality invalidly used its

police powers in ordering the closure/transfer of

petitioner's gasoline station. The abatement of a

nuisance without judicial proceedings is possible only

if it is a nuisance per se. A gas station is NOT a

nuisance per se or one affecting the immediate safety

of persons and property. Hence, it cannot be closed

down or transferred summarily to another location.

Lucena Grand Central vs JAC Liner

HELD: The power then of the Sangguniang Panlungsod to prohibit encroachments and obstacles does not extend to terminals. Neither are terminals public nuisances as petitioner argues for their operation is a legitimate business which, by itself, cannot be said to be injurious to the rights of property, health, or comfort of the community.

But even assuming that terminals are nuisances due to their alleged indirect effects upon the flow of traffic, at most they are nuisance per accidens, not per se.

Unless a thing is nuisance per se, however, it may not be abated via an ordinance, without judicial proceedings, as was done in the case at bar.

Doctrine of Attractive Nuisance

Class: Sa mga bata sir..

QUESTION: Unsa mga bata? Klaroha! Mga Bata?

Nuisance diay nang mga bata??!

ANSWER: Dangerous instrumentality which

attracts children of tender years. You are a

maintainer of a dangerous instrumentality which

would attract children, and if the child or parents will

suffer or incur damages, then you are liable. Not a

nuisance per definition, but it is an attractive

nuisance.

QUESTION: What is NOT an attractive Nuisance?

ANSWER: See Hidalgo Enterprises vs Balandan

Hidalgo Enterprises vs Balandan

petitioner Hidalgo Enterprises, Inc. owner of an ice-

plant factory in whose premises were installed two

tanks full of water, nine feet deep, for cooling

purposes of its engine.

boy barely 8 years old, while playing with other boys

of his age entered the factory premises through the

gate, to take a bath in one of said tanks and while thus

bathing, Mario sank to the bottom of the tank, only to

be fished out later, already a cadaver

Action filed: Grounded on damages on maintenance of

attractive nuisance.

Issues: Now, is a swimming pool or water tank an

attractive nuisance? Is the petitioner liable?

HELD: NO. Swimming pool or pond or reservoir of

water or the ice tank in the case at bar is not

considered an attractive nuisance. Hidalgo Enterprises,

Inc. is absolved from liability.

Nature has created streams, lakes and pools which

attract children. Lurking in their waters is always the

danger of drowning. Against this danger children are

early instructed so that they are sufficiently presumed

to know the danger; and if the owner of private

property creates an artificial pool on his own property,

merely duplicating the work of nature without adding

any new danger

The ice plant is a mere duplication of nature. Inherent ni. Bodies of

water inherent ni. Unsa man, i-sue nimo ang Ginoo kay na ni sila? For

as long as you are not introducing additional danger

QUESTION: What is an attractive Nuisance?

ANSWER: Slides in a pool. Naa si Jollibee or Mcdo!