Easements

An easement is a real right constituted in anothers tenement whereby the owner of the
latter must refrain from doing or allow something to be done on his property for the benefit
of another thing or person.
The term is easement is a common-law term. Servitude is the civil law term. A servitude
is broader in scope. For example, an easement does not include the right to draw water.
However at present, both terms are interchangeable.
An easement grants less rights than a usufruct. An easement never carries with it the right
to possess. The rights granted by an easement are very limited.

A. Characteristics
1. Always a real right
Basic Rule: There can be NO easement on personal property.
2. Can only be imposed only on the property of another
it cannot be imposed on your property.
)

3. Produces limitations on ownership but the ownership is not impaired

4. Inseparable from the tenements from which it is passively or actively attached (Article 617)

Art. 617. Easements are inseparable from the estate to which they actively or passively
belong.

Indivisible
B. Kinds of Easements
1. As to Benefit
a. Real(Article613)
Art. 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.

A real easement is one in favor of another immovable the dominant estate.

This is more common than the personal easement.

b. Personal
A personal easement is in favor of a community, or of one or more persons to whom the encumbered
estate does not belong (i.e. easement for drawing water).
2. As to Manner of Exercise(Article615)
Art. 615. Easements may be continuous or discontinuous, apparent or non apparent.
Continuous easements are those the use of which is or may be incessant, without the
intervention of any act of man.

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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.
a. Continuous
Continuous easements are those the use of which is or may be incessant, without the intervention
of any act of man.
b. Discontinuous
Discontinuous easements are those which are used at intervals and depend upon the acts of man
(i.e. right of way)
3. As to Indication of Existence(Article615)
a. Apparent
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.
)
)

For example, a right of way is apparent if the path is marked off.

b. Non-apparent
Non-apparent easements are those which show no external indication of their existence.

For example, a right of way is non-apparent if the path is not marked.

4. As to Nature of the Limitation(Article616)

Art. 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.
a. Positive
Positive easements are those which impose upon the owner of the servient estate the obligation of
allowing something to be done or of doing it himself.
i. In patiendo (Article 680, 1

st

part)

Allowing something to be done

ii. In faciendo (Article 680, 2

nd

part)

Doing it yourself
b. Negative
Negative easements are those which prohibit the owner of the servient estate from doing something which
he could lawfully do if the easement did not exist. In allowing someone to do something in your estate, you

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are prohibited from preventing that person from doing that something.
NOTE: Some commentators believe that all easements are negative. Easements are restrict the owners
from doing something which they could otherwise do. What appear to be positive easements are in fact
really negative easements.
1. As to Source
a. Voluntary(Article619)
Art. 619. Easements are established either by law or by the will of the owners. The former are
called legal and the latter voluntary easements.
)

Established by the will of the owners

In North Negros Sugar Central vs. Hidalgo, North Negros Sugar Central (NNSC) constructed across
its properties a road connecting the mill site with the provincial highway. NNSC made the road accessible
to the public, a toll fee being charged in cases of motor vehicles, & pedestrians being allowed free
passage. A tuba saloon was in the adjoining hacienda. The owner pf the saloon passed through the
connecting road as it was his only means of access. NNSC sought to enjoin the owner of the tuba saloon
from using the road in question since NNSCs workers got drunk.

There are 2 very persuasive views in the case of NNSC vs. Hidalgo. The majority said that NNSC
voluntarily constituted an easement of way in favor of the general public. NNSC could not discriminate
against certain persons who may want to use the road. This is clearly a case of a servitude voluntarily
constituted in favor of the community under Article 531. Having been devoted by NNSC to the use of the
public in general, the road is charged w/ public interest & while so devoted. NNSC may not establish
discriminatory exceptions against any private persons.

The dissent said that there was no easement by using the process of elimination. A voluntary
easement can be created only by will, by a donation or by a contract. In this case, there was no will,
donation, or contract.

b. Legal(Article619)
Established by law
c. Mixed
A mixed easement can be acquired through prescription
C. 2 Modes of Acquiring Easements
1. Title
Title means the juridical act which gives rise to the servitude (i.e. law, donation, contract, will)

All kinds of easements can be created by title

a. Continuous and apparent easements
b. Continuous and non-apparent easements
c. Discontinuous and apparent easements
d. Discontinuous and non-apparent easements

Equivalents of Title
a. Deed of recognition(Article623)
Art. 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

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servient estate or by a final judgment.

)

b. Finaljudgment(Article623)

c. Apparent sign (Article 624)

1

Art. 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.

In Amor vs. Florentino owned a house and a camarin. The house had 3
windows. From the said windows the house receives light and air from the lot where the
camarin stood. The camarin and the house were disposed of. The windows were not closed.
The SC said that an easement of light and view had been established. When ownership
passed to theirs, nothing was done to the windows. The new owner of the house continued
to exercise the right of receiving light and air through those windows. The visible and
permanent sign of an easement is the title that characterizes its existence. Existence of the
apparent sign had the same effect as a title of acquisition of the easement of light and view
upon death of original owner.

2. Prescription

a. Positive easements

ONLY continuous and apparent easements may be created by prescription.

In order for an easement to be acquired by prescription, good faith or bad faith is irrelevant.
The easement can be acquired after the lapse of 10 years.
Counting of the 10 year prescriptive period

Start counting from the 1

st

act constituting the exercise of the easement was performed.

b. Negative easements

Start counting from the time when the owner of the dominant estate serves a notarial prohibition
on the owner of the prospective servient estate.

NOTE: Most easements are clearly positive or negative easements. However, an easement of light and
view is both a positive and a negative easement. There are special rules to determine the counting of the
prescriptive period.
)
)
)
)

st
a. Start counting from the 1 act constituting the exercise of the easement was performed if the opening
through which the light and view passes is a party wall.
Rationale: If the neighbor does not like the opening, he can always close it.
b.Start counting from the time when the owner of the dominant estate serves a notarial prohibition on the
owner of the prospective servient estate if the opening is made on the dominant owners own wall.
Rationale: The neighbor cannot close the opening since its in the dominant owners property.

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Art. 625. Upon the establishment of an easement, all the rights necessary for its use are
considered granted.

Upon the establishment of an easement, all the rights necessary for its use are considered granted.
An example of this is Article 641. An easement for drawing water may carry with it the easement of
right of way. If the well is in the middle of someone elses property how can one draw water without
having to pass through that persons property? Art. 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.
Article 626 is a classic case of an intent that failed. Article 626 was meant to overrule the ruling in
Valderrama vs. North Negros Sugar Co.

In Valderrama vs. North Negros Sugar Co., Valderrama executed a contract with North Negros
(NNSC) whereby NNSC agreed to install a sugar central of minimum capacity of 300 tons for grinding and
milling al sugar cane grown by Valderrama who in turn bound himself to furnish the central all the cane
they might produce. A railroad was constructed on Valderramas land to transport the sugarcane
harvested. However, Valderrama was unable to supply the required amount of sugarcane. NNSC had to
contract with other sugarcane growers. Valderrama alleges that the easement granted in favor of North
Negros was only for the transportation of the sugarcane of Valderrama. The SC said that the easement
was created to enable NNSC to build and maintain a railroad for transportation of sugar cane. To limit use
exclusively to the cane of the hacienda owners would make the contract ineffective. Furthermore, it is
against the nature of the easement to pretend that it was established in favor of the servient estates. The
easement was created in favor of the corporation and not for the hacienda owners. The corporation may
allow its wagons to pass by the tracks as many times as it may deem fit.
The solution to the problem in Valderrama vs. NNSC would be to stipulate in the contract that a violation of
the any of the conditions would terminate the easement.
Art. 627. The owner of the dominant estate may make, at his own expense, on the servient
state 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.

At his own expense, the owner of the dominant estate may make any works on the servient
estate which are necessary for the use and preservation of the servitude.
Such works cannot alter or make the servitude more burdensome.
The owner of the dominant estate must notify the owner of the servient estate. The owner
of the dominant estate must choose the most convenient time and manner so as to cause
the least inconvenience to the owner of the servient estate.

Art. 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.

If there are several dominant estates with a common servitude, the expenses for its use and
preservation shall be shouldered by the owners of the dominant estates in proportion to the
benefit that they receive.
In the absence of proof to the contrary, the presumption is that the benefits are equal.

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If the owner of the servient estate also makes use of the servitude, he must also contribute
in proportion to the benefit he receives

D. Extinguishment of Easements
)

1. By merger of ownership of the dominant and servient estates

The merger must be complete, absolute and permanent.

If the owner of the servient estate becomes a co-owner of the dominant estate, the easement
subsists since the merger is not complete.
If the sale is a pacto de retro sale, then the merger is not complete. The easement is only
suspended

2. Extinctive prescription

All the dominant owner of the estate has to do is to stop using it continuously.
In the case of legal easements, the right to claim is never extinguished. All the dominant owner of
the estate has to do is to claim it.

3. When either or both of the estates fall into such condition that the easement cannot be
used. However, it shall be revived if the subsequent condition of either or both of the estates
should permit its use. This is however subject to extinctive prescription

This is not a ground for extinguishments. This is a ground for suspension of the easement. The
suspension may eventually lead to extinguishment of the easement if there is extinctive
prescription.

4. Expiration of the term of the fulfillment of the condition

5.Renunciation of the owner of the dominant estate

There is dispute as to whether or not the renunciation can be tacit or not. According to Professor
Balane, it can be tacit under Article 6 of the Civil Code. Rights may be waived. There is no
prescribed form.

6.Buy off the easement

7. Expropriation of the servient estate

There can be no easement over property of the public dominion.

8. Permanent impossibility to make use of the easement

9. Annulment or cancellation of the contract of easement

10. Resolution of grantors right to create the easement
A sells land to B via a pacto de retro sale. B while being a vendee de retro grants an easement to C. If A,
the vendor, redeems, the easement given to C is extinguished.
Registration of the servient estate as free and without any encumbrance in the Torrens System
in favor of an innocent purchaser for value
Cessation of necessity, in case of a legal easement of right of way

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EASEMENTS RELATING TO WATERS

The Water Code (Articles 31-52) amends many of the easements.

Articles 52 and 100 of the Water Code are the repealing clauses
Article 637 (natural drainage of lands) has been superseded by Article 50 of the Water Code.
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.
Art. 50, Water Code. Lower estates are obliged to receive the waters which naturally
and without the intervention of man flow from the higher estate, as well as the stone or
earth which they carry with them. The owner of the lower estate can not construct
works which will impede this natural flow, unless he provides an alternative method of
drainage; neither can the owner of the higher estate make works which will increase
this natural flow.

Article 638 (tow path) has been superseded by Article 51 of the Water Code.

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.
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.
Art. 51, Water Code. 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.

Article 639 (easement of dam) has been superseded by Articles 38 and 39 of the Water
Code.

Art. 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.
Art. 38, Water Code. Authority for the construction of dams, bridges and other structures
across of which may interfere with the flow of navigable or flotable waterways shall first be
secured from the Department of Public Works, Transportation and Communications.
Art. 39, Water Code. Except in cases of emergency to save life or property, the construction or
repair of the following works shall be undertaken only after the plans and specifications
therefor, as may be required by the Council, are approved by the proper government agency;
dams for the diversion or storage of water; structures for the use of water power, installations

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for the utilization of subterranean or ground water and other structures for utilization of water
resources.

Articles 640-641 are the provisions regarding easement for drawing of waters.

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 service.

Articles 642-646 are the provisions for the easement of aqueduct. This should be correlated
with Article 49 of the Water Code.

Art. 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. Art. 643. One desiring to make use of the right granted in
the preceding article is obliged:
1

(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.
)

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.

Article 647 is the easement for the construction of stop lock and sluice gate.

Art.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

Article 25 of the Water Code is the easement for appropriation and use of waters.

Art. 25, Water Code. A holder of water permit may demand the establishment of easements
necessary for the construction and maintenance of the works and facilities needed for the
beneficial use of the waters to be appropriated subject to the requirements of just
compensation and to the following conditions:
C

That he is the owner, lessee, mortgagee or one having real right over the land upon which he
proposes to use water; and

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That the proposed easement is the most convenient and the least onerous to the servient
estate. Easements relating to the appropriation and use of waters may be modified by
agreement of the contracting parties provided the same is not contrary to law or prejudicial to
third persons.
)

)
)

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