1

Chapter 2

LEGAL EASEMENTS

Section 1. General Provisions

Art. 634. Easements imposed by law have for their object either

public use or the interest of private persons. (549)

Art. 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 thisTitle. (550)

Art. 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)

Legal Easement, In General

The Civil Code provides for the following classes of private legal

easements:

(a) Easement relating to waters (Arts. 637-648, NCC);

(b) Easement of right of way (Arts. 649-657, NCC);

(c) Easement of party wall (Arts. 658-666, NCC);

(d) Easement of light and view (Arts. 667-673, NCC);

(e) Easement of drainage of buildings (Arts. 674-676, NCC);

(f) Easement of distances (Arts. 677-681, NCC);

(g) Easement of nuisance (Arts. 682-683, NCC); and

(h) Easement of lateral and subjacent support. (Arts. 684-687, NCC)

Section 2. Easements Relating to Waters

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.

2

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)

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. (553a)

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. (554)

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. (555)

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. (556)

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. (557)

Art. 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;

3

(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)

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. (559)

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.

(560)

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.

(561)

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. (562)

Art. 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)

Easement Relating to Waters

The following are the easements relating to waters:

(1) Easement of drainage of waters (Art. 637, NCC; Art. 50,Water

Code)

(2) Easement for public use (Art. 638, NCC; Art. 51, Water Code);

(3) Easement for drawing waters (Arts. 640-641, NCC);

(4) Easement of abutment of dam (Art. 639, NCC);

(5) Easement of aqueduct (Arts. 642-646, NCC).

4

Easement of Drainage of Waters

An easement exists when, based on the physical condition of two estates,

waters descend naturally and without the intervention of man from a

higher estate (the dominant estate) to a lower estate (the servient estate).

This is called “easement of drainage of waters.”

In this kind of easement, the lower estate is obliged to receive the waters

which naturally and without the intervention of man flow from the higher

estates, as well as the stones or earth which they carry with them.

Such being the case, the owner of the lower estate may not construct

works, such as dikes, walls or hedges, which will block or impede the flow

of waters, unless he provides an alternative method of drainage. The

owner of the higher estate, in turn, may not construct works which will

increase the burden or increase the natural flow.

The owner of the higher estate shall also have the right to resort to artificial

means for the purpose of draining waters from higher to lower estates but

in the exercise of such right, he is obliged:

(1) to select the routes and methods of drainage that will cause the

minimum damage to the lower lands; and

(2) to pay just compensation to the owner of the lower estate.

Since the enjoyment of this servitude does not depend upon acts of man

because the descent of water from the higher to the lower estates is due

to the force of gravity, this easement must be classed among the

continuous ones and it is subject to extinction by non-user for a period of

ten yearscomputed from the day on which an act contrary to the

easement took place, such as building of dikes.

Easement of Public Use

The banks or rivers and streams and the shores of the seas and

lakesthroughout 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,.

5

are subject to the easement of public use in the interest of

recreation,navigation, floatage, fishing and salvage.

However, 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.

Note that in connection with this kind of easement, the provision of the

first paragraph of Article638 of the New Civil Code was modified by Article

51 of the Water Code of the Philippines (P.D. No. 1067).

Easement For Drawing Waters

The compulsory easement for drawing waters 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. This kind of easement, upon its

establishment, carries with it the easement of right of way.

In other words, the owner of the servient estate shall also have the

obligation to allow passage to persons and animals to the place where

the easement is to be used. As such, the indemnity to be paid for the

easement for drawing waters or for watering animals must include

indemnity for the easement of right of way.

Easement of Abutment of Dam

Whenever it is necessary to build a dam for the purpose of diverting or

taking waters from a river or brook, or for the use of any other continuous

or discontinuous stream, and the person who is to construct it is not the

owner of the banks or of the land on which must support it, he may

establish an easement of abutment(support) of dam only upon payment

of the proper indemnity to the owner of the affected estates

Easement of Aqueduct(Cannal or Channel)

Requisites

If a person wishes to use upon his estate any water of which hecan

dispose, he shall have the right to make it flow through

interveningestates.This is called “easement of aqueduct.”In order for

thiseasement to be established, the following requisites must concur:

(1) That he who wants to establish the easement of aqueductmust

be able to prove that he can dispose of the water;

6

(2) He must also prove that it is sufficient for the use for whichit is

intended;

(3) The proposed right of way is the most convenient and the least

onerous to third persons affected; and

(4) He must indemnify the owners of the servient estates(intervening

estates), as well as the owners of the lowerestates upon which the

waters may filter or descend

Article 47 of the Water Code of the Philippines likewise provides that

“when the use, conveyance or storage of water results in damage to

another, the person responsible for the damageshall pay compensation.”

This kind of easement, if established for private interest, may not be

imposed on buildings, courtyards, annexes, or outhouse, or on orchards or

gardens already existing

Right of Owners of Servient Estate

The existence of an easement of aqueduct does not, however, curtail the

right of the owner of the servient estate to close or fence his estate but he

may not refuse the entry of the holder of the easement on his estate if the

purpose of such entry is the cleaning, repair or replacement of the

aqueduct or removal of any obstruction therefrom.

The existence of such easement does not likewise prevent the owner of

the servient estate from building over this aqueduct provided that the

same does not cause damage to the aqueduct or render the necessary

repairs and cleanings thereon impossible.

Nature of Easement

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. Hence, an easement of

aqueduct may be acquired either by title or by prescription

Section 3. Easement of Right of Way

Art. 649. The owner, or any person who by virtue of a real right may

cultivate or use any immovable, which is surrounded by other

immovable pertaining to other persons and without adequate outlet

7

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)

Art. 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)

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. (566a)

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 an indemnity. However, the donor shall not be liable for

indemnity. (n)

Art. 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)

8

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.

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

casethe width shall not exceed 10 meters. (570a)

Easement of Right of Way

Concept

Servitudes of right of way are an ancient concept, which date back to

the iter, actus, and via of the Romans. They are demanded by necessity,

that is, to enable owners of isolated estates to make full use oftheir

properties, which lack of access to public roads has denied them.

The essence of this easement (“servidumbre de paso”) lies in the power of

the dominant owner to cross or traverse the servient tenement without

being prevented or disturbed by its owner. As a servitude, it is a limitation

on the servient owner’s rights of ownership, because it restricts his right to

exclude others from his property. But such limitation exists only when the

dominant owner actually crosses, or passes over the servient estate;

because when he does not, the servient owner’s right of exclusion is

perfect and undisturbed. Since the dominant owner cannot be

continually and uninterruptedly crossing the servient estate, but can do so

only at intervals, the easement is necessarily of an intermittent or

discontinuous nature.

Because possession of a right consists in the enjoyment of that right and to

enjoy a right is to exercise it, it follows that the possession (enjoyment or

exercise) of a right of way is intermittent and discontinuous.

From this premise, it is inevitable to conclude, with Manresa and Sanchez

Roman, that such easement cannot be acquired by acquisitive

9

prescription (adverse possession) because the latter requires that the

possession be continuous or uninterrupted

Manner of Acquisition; Requisites of Compulsory Right of Way

An easement of right of way may only be acquired by virtue of a title,

either voluntarily (Arts. 688-693) or compulsorily (Arts. 649-657).

A voluntary easement of right of way is constituted by covenant

(contract) and does not, therefore, require that the dominant estate be

isolated and without an adequate outlet to a public highway.

If an estate, however, is so isolated and without an adequate outlet to a

public highway, the grant of easement of right of way is compulsory and

hence, legally demandable, subject to indemnity and the concurrence of

other conditions enumerated under Articles 649 and 650 of the New Civil

Code.

In Bacolod-Murcia Milling Co., Inc. v. Capital Subdivision, Inc.,127 the

Supreme Court held that a compulsory easement of right of way cannot

be obtained without the presence of four (4) requisites provided for in

Articles 649 and 650 of the Civil Code, which the owner of the dominant

tenement must establish, to wit:

(1) That the dominant estate is surrounded by other immovable and

has no adequate outlet to a public highway(Art. 649, par. 1);

(2) After payment of proper indemnity(Art. 649, par. 1, end);

(3) That the isolation was not due to acts of the proprietor of the

dominant estate(Art. 649, par. 4); and

(4) That the right of way claimed is 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. (Art. 650)

By its very nature, and when considered with reference to the obligations

imposed on the servient estate, an easement involves an abnormal

restriction on the property rights of the servient owner and is regarded as

a charge or encumbrance on the servient estate. Thus, 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 be granted. Stated otherwise, the

10

burden of proving the existence of the prerequisites to validly claim a

compulsory right of way lies on the owner of the dominant estate.

Isolation of the Dominant Estate

In order to entitle the owner of the dominant estate to demand for a

compulsory right of way, it is required that his estate must be “surrounded

by other immovables pertaining to other persons.”

The estate, however, need not be totally landlocked as the isolationof the

dominant estate is also dependent on the particular need of

thedominant owner. What is important to consider is whether or not a right

of way is necessary to fill a reasonable need therefor by the owner.

Thus, as Manresa had pointed out, if the passageway consists of

an“inaccessible slope or precipice,”it is as if there is no passageway, that

is, one that can sufficiently fulfill the dominant owner’s

necessities,although by the existence of that passageway the property

cannot betruly said that the property is isolated.

So also, while an existing rightof way may have proved adequate at the

start, the dominant owner’sneed may have changed since then, for

which Article 651 of the Codeallows adjustments as to width.

But the law makes it amply clear that an owner cannot, by his own act,

isolate his property from a public highway and then claim an easement of

way through an adjacent estate. In short, the claimant of a right of way

must not himself procured the isolation of his property.

According to the last paragraph of Article 649, the “easement is not

compulsory if the isolation of the immovable is due to the proprietor’s own

acts.”

Thus, when the claimant of a right of way had already beengranted an

adequate access to the public highway through another estatebut the

same was no longer in use because he himself had closed it offby

erecting a stonewall on his lot at the point where such

passagewaybegan,he cannot demand for a compulsory right of way in

an alternativelocation.

Inadequacy of the Outlet to Public Highway

To be entitled to a compulsory right of way, it is necessary that the estate

of the claimant of a right of way must be isolated and without adequate

outlet to a public highway.The true standard for the grant of the legal right

11

is “adequacy.” Hence, when there is already an existing adequate outlet

from the dominant estate to a public highway, even if the said outlet, for

one reason or another, be inconvenient, the need toopen up another

servitude is entirely unjustified

Of course, the question of when a particular passage may be said to be

“adequate” depends on the circumstances of each case. Manresa,

however, says: “In truth, not only the estate which absolutely does not

possess it should be considered in this condition, but also that which does

not have one sufficiently safe or serviceable; an estate bordering a public

road through an inaccessible slope or precipice, is in fact isolated for all

the effects of the easement requested by its owner.

On the other hand, an estate which for any reason has necessarily lost its

access to a public road during certain periods of the year is in the same

condition. There are some who propound the query as to whether the

fact that a river flows between the estate and the public road should be

considered as having the effect of isolating the estate. If the river may be

crossed conveniently at all times without the least danger, it cannot be

said that the estate is isolated; in any other case, the answer is in the

affirmative.

In order to justify the imposition of the servitude of right of way, there must

be a real, not a fictitious or artificial necessity for it. Mere convenience for

the dominant estate is not what is required by law as the basis for setting

up a compulsory easement. Even in the face of a necessity, if it can be

satisfied without imposing the servitude, the same should not be imposed.

This easement can also be established for the benefit of a tenement with

an inadequate outlet, but not when the outlet is merely inconvenient.

Thus, when a person has already established an easement of this nature in

favor of his tenement, he cannot demand another, even if the first

passage has defects which make passage impossible, if those defects

can be eliminated by proper repairs

At the Point Least Prejudicial.

Article 650 of the New Civil Code explicitly states that 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.

The criterion of least prejudice to the servient estate must prevail over the

criterion of shortest distance although this is a matter of judicial

appreciation.

12

While shortest distance may ordinarily imply least prejudice, it is not always

so as when there are permanent structures obstructing the shortest

distance; while on the other hand, the longest distance may be free of

obstructions and the easiest or most convenient to pass through. In other

words, where the easement may be established on any of several

tenements surrounding the dominant estate, the one where the way is

shortest and will cause the least damage should be chosen.

However, if these two (2) circumstances do not concur in a single

tenement, the way which will cause the least damage should be used,

even if it will not be the shortest. This is the test.

Hence, as between a right of way that would demolish a store of strong

materials to provide egress to a public highway, and another right of way

which although longer will only require an avocado tree to be cut down,

the second alternative should be preferred

Payment of Indemnity

Prepayment, as we used the term means the delivery of the proper

indemnity required by law for the damage that might be incurred by the

servient estate in the event the legal easement is constituted. The fact that

a voluntary agreement upon the extent of compensation cannot be

reached by the parties involved, is not an impediment to the

establishment of such easement.

Precisely, the action of the dominant estate against the servient estate

should include a prayer for the fixing of the amount which may be due

from the former to the latter

The extent of the indemnity, should the easement be established in such a

manner that its use may be continuous for all the needs of the dominant

estate, thereby establishing a permanent passage, shall consist of the

value of the land occupied and the amount of the damage caused to

the servient estate

And 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.

However, whenever a piece of land which is acquired by sale, exchange

or partition is surrounded by other states of the vendor, exchanger or co-

13

owner,the owner is entitled to a grant of right of way without indemnity.

Such grant of right of way is deemed a tacit condition of the contract

and essentially voluntary in character inasmuch as the estate is

surrounded by the estate of others through the will of the parties.

But if the owner acquires his land by way of a simple donation, there is no

such tacit condition because the donor receives nothing from the donee.

In this latter case, therefore, the donee can only demand for a right of way

after payment of the proper indemnity

Width of the Easement

Article 651 of the New Civil Code provides that “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.”

This is taken to mean that under the law, it is the needs of the dominant

property which ultimately determine the width of the passage. And these

needs may vary from time to time

Who May Demand For Compulsory Right of Way

Under Article 649 of the New Civil Code, it is the owner, or any person who

by virtue of a real right may cultivate or use any immovable surrounded

by other immovable pertaining to other persons, who is entitled to

demand a right of way through the neighboring estates.

Thus, in the case of Spouses Dela Cruz v. Ramiscal, the Court held that the

petitioners therein are not entitled to demand for a compulsory right of

way because they are not the owners of the supposed dominant estate

and neither do they possess a real right to use such property.

While a usufructuary is entitled to demand a right of way pursuant to

Article 649, a mere lessee does not enjoy the same right. With respect to

the latter, his action is against the lessor who is bound to maintain him in

the enjoyment of the property.

Extinguishment of Right of Way

If the right of way is no longer necessary because the owner of the

dominant estate has joined it to another abutting on a public highway

and such public highway substantially meets the needs of the dominant

estate, the owner of the servient estate may demand for the release of his

14

estate from the servitude by returning what he may have received by way

of indemnity without interest.

The interest on the indemnity shall, instead, be considered as payment for

the use of the easement. The same rule shall be applied in cases where a

new road is opened thereby giving access to the isolated estate.

Note, however, that the extinguishment of the right of way in the

foregoing manner does not take place ipso jure (automatic).The owner of

the servient estate must ask for the release of his estate from the servitude

upon the return of the indemnity he received.

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. (571a)

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. (572)

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;

(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;

15

(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)

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. (574)

Art. 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)

Art. 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)

16

Art. 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)

Art. 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. Every part-owner of a party wall may use it in proportion to

the right he may have in the co-ownership, without interfering with

the common and respective uses by the other co-owners. (579a)

Easement of Party Wall

Nature of Party Wall

While our Civil Code recognizes the existence of co-ownership in a party

wall, it is considered more of a servitude. This is to be seen in the way the

concept is treated under the Civil Code — it is discussed under the title on

easement or servitude and not under the title on coownership.

In ordinary co-ownership, none of the co-owners may do anything on the

co-owned property for his own exclusive benefit because he would be

impairing the rights of others. But in a party wall, there is no such juridical

limitation upon the action of the owner.

And as explained by Senator Tolentino, when the law grants to the owners

of a party wall the right to make in it works for the exclusive benefit of the

person making them, and not in the interest of the others, such grant

cannot be by mere title of co-ownership, but by virtue of a right of

servitude

17

Presumption of Existence of Easement of Party Wall

The law presumes the existence of an easement of party wall in the

following cases:

(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

rural communities; and

(3) In fences, walls and live hedges dividing rural lands.

This presumption will not, however, apply if:

(1) there is title to the contrary;

(2) there is an exterior sign to the contrary; and

(3) there is proof to the contrary.

It is understood, however, that there exists an exterior sign contrary to the

easement of party wall in the following instances:

(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;

18

(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 the foregoing 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 the

these signs.

With respect to ditches or drains opened between two estates, there is

also a presumption that they are common to both estates unless there is a

sign or title to 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.

Rights and Obligations of Each Co-Owner of Party Wall

Right to Use

Every part-owner of a party wall may use it in proportion to the right he

may have in the co-ownership even without the consent of the other

owners so long as he does not interfere with the common and respective

uses by the other co-owners

Right to Increase Height of Party Wall

Every part-owner of a party has the right to increase the height of the

party wall subject to the following conditions:

(1) the same shall be done at his expense;

(2) he shall pay for any damage which may be caused by his work,

even though such damage may be temporary; and

(3) 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

The co-ownership is maintained up to the point where the original wall

extended. But with respect to the additional height, the same shall be

19

exclusively owned by the part-owner at whose instance the party wall

was raised. As a consequence, the expenses in maintaining the additional

height, as well as the increase in expenses which may be necessary for

the preservation of the party wall by reason of the greater height, shall be

borne by him.

The other owners may, however, acquire a proportionate share in the

raised party wall by paying proportionately the value of the work at the

time of the acquisition and of the land used for its increased thickness, in

which case, all shall bear the expenses of maintaining the additional

height in proportion to their respective interest in it.

Repairs and Maintenance of Party Wall

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.171 In case where the party wall

supports a building, the owner of such building may renounce his part

ownership of the party wall if he will demolish the building

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 shall

be borne by him

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 (opening) of any

kind. (580)

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.

20

Art. 669. When the distances in Article 670 are not observed, the

owner of a wall which is not a 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 joists or immediately under the

ceiling, and of the size of thirty centimeters square, and, in every

case, with an iron grating imbedded in the wall and with a wire

screen.

Nevertheless, the owner of the tenement or property adjoining the

wall in which the openings are made can close them should he

acquire part-ownership thereof, if there be no stipulation to the

contrary.

He can also obstruct them by constructing a building on his land or

by raising a wall thereon contiguous to that having such openings,

unless an easement of light has been acquired. (581a)

Art. 670. No windows, apertures, balconies, or other similar

projections which afford a direct view upon or towards an adjoining

land or tenement can be made, without leaving a distance of two

meters between the wall in which they are made and such

contiguous property.

Neither can side or oblique views upon or towards such

conterminous property be had, unless there be a distance of sixty

(60) centimeters.

The nonobservance of these distances does not give rise to

prescription. (582a)

Art. 671. The distance referred to in the preceding article shall be

measured in cases of direct views from the outer line of the wall

when the openings do not project, from the outer line of the latter

when they do, and in cases of oblique views from the dividing line

between the two properties. (583)

Art. 672. The provisions of Article 670 are not applicable to buildings

separated by a public way or alley, which is not less than three

meters wide, subject to special regulations and local ordinances.

(584a)

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

21

less than a distance of three meters to be measured in the manner

provided in Article

671. Any stipulation permitting distances less than those prescribed

in Article 670 is void. (585a)

If the easement is both continuous and apparent, it may beacquired by

virtue of prescription within a period of ten (10) years.The commencement

of the ten-year period of prescription will dependon whether the

easement is positive or negative, as follows:

(a) If the easement is positive, the 10-year period is countedfrom 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;or

(b) If the easement is negative, the 10-year period is countedfrom

the day on which the owner of the dominant estateforbade, by an

instrument acknowledged before a notarypublic, the owner of the

servient estate, from executing anact which would be lawful without

the easement.

The foregoing principles are best explained if we are goingto consider the

acquisition of easement of light and view throughprescription. At the

outset, it must be pointed out that a building mayreceive light in various

manners in the enjoyment of an easement oflight, because the openings

through which the light penetrates may bemade in one’s own wall, in the

wall of one’s neighbor, or in a party wall.

The legal doctrine applicable in either one of these cases is

different,owing to the fact that, although anyone may open windows in

his ownwall, no one has a right to do so in the wall of another without

theconsent of the owner, and it is also necessary, in accordance with

Article667 of the New Civil Code, to obtain the consent of the other co-

ownerwhen the opening is to be made in a party wall

When a person opens windows in his own building he does nothing more

than exercise an act of ownership inherent in the right of property, which,

under Article 428 of the New Civil Code, empowers him to deal with his

property as he may see fit, with no limitations other than those established

by law. By reason of the fact that such an act is performed wholly on a

thing which is wholly the property of the one opening the window, it does

not in itself establish any easement, because the property is used by its

owner in the exercise of dominion,and not as the exercise of an

22

easement: “For a man should not usethat which belongs to him as if it

were a service only, but as his ownproperty.”

Coexistent with this right is the right of the owner of theadjacent property

to cover up such windows by building on his ownland or raising a wall

contiguously to the wall in which the windowsare opened, by virtue of the

reciprocity of rights which should existbetween abutting owners, and

which would cease to exist if one coulddo what he pleased on his

property and the other could not do the sameon his.

Hence, it is that the use of the windows opened in a wall of one’sown

property, in the absence of some covenant or express agreement tothe

contrary, is regarded as an act of mere tolerance on the part of theowner

of the abutting property, and does not create any right to maintainthe

windows to the prejudice of the latter.

The mere toleration of suchan act does not imply on the part of the

abutting owner a waiver of hisright to freely build upon his land as high as

he may see fi t, nor does itavail the owner of the windows for the effects

of possession, because itis a mere possession at will.

From the foregoing, it follows that the easement of light withrespect to the

openings made in one’s own edifice does not consistprecisely in the fact

of opening them or using them, inasmuch as they may be covered up at

any time by the owner of the abutting property,and, as Manresa says in

his commentaries on the Civil Code, “thereis no true easement as long as

the right to impede its use exists.”

Theeasement really consists of in prohibiting or restraining the

adjacentowner from doing anything which may tend to cut off or

interrupts the light; in short, it is limited to the obligation of not impeding

the light(ne luminibusofficiatur). The latter coincides in its effects, from

thispoint of view, with the obligation of refraining from increasing

theheight of a building (altius non tollendi), which, although it constitutesa

special easement, has for its object, at times, the prevention of

anyinterruption of the light enjoyed by the adjacent owner.

In this sense,it has been commented that an easement of light and view

necessarilyincludes an easement not to build higher (altius non tollendi).

Thesetwo easements necessarily go together because an easement of

lightand view requires that the owner of the servient estate shall not

buildto a height that will obstruct the window. They are, as it were, the

twosides of the same coin. While an easement of light and view is

positive,that of altius non tollendiis negative.

23

It will thus be observed thatthe owner of the servient estate subject to

such easement is under noobligation whatsoever to allow anything to be

done on his tenement,nor to do anything there himself, but is simply

restrained from doinganything thereon which may tend to cut off the light

from the dominantestate, which he would undoubtedly be entitled to do

were it not for theexistence of the easement. If, then, the first condition is

that which ispeculiar to positive easements, and the second condition

that which ispeculiar to negative easements.

Consequently, the easement of lights inthe case of windows opened in

one’s own wall is of a negative character, and, as such, cannot be

acquired by prescription under Article 621 ofthe New Civil Code, except

by counting the time of possession from thedate on which the owner of

the dominant estate may, by an instrumentacknowledged before a

notary public, have prohibited the owner of theservient estate from doing

something which it would be lawful for himto do were it not for the

easement

If the window, on the other hand, is opened in a party wall, and notin a

wall the sole and exclusive property of the owner of the

dominanttenement, the easement of lights is positive and the 10-year

period ofprescription commences from the time of the opening of the

window.

The reason for this is because no part owner can, without the consentof

the other, make in a party wall a window or opening of any kind,

asprovided in Article 667 of the New Civil Code. Hence, the very factof

making such openings in such a wall might, therefore, be the basisfor the

acquisition of a prescriptive title without the necessity of anyactive

opposition, because it always presupposes the express or impliedconsent

of the other part owner of the wall, which consent, in turn,implies the

voluntary waiver of the right of such part owner to opposethe making of

such openings or windows in such a wall.

The same rule will apply if the window is opened on the wallbelonging to

one’s neighbor. The 10-year prescriptive period commencesfrom the time

of the opening of the window. Stated otherwise, if anyoneshall open a

window in the wall of his neighbor, through which thelight enters his house,

by this sole fact he shall acquire a prescriptivetitle to the easement of

light, if the time fixed by law (ten years) expireswithout opposition on the

part of the owner of the wall

24

Making an Opening in Party Wall

A part-owner of a party wall may use it even without the consent the

consent of the other owners so long as he does not interfere in the

common and respective uses by the otherco-owners.No part-owner may,

however, make an opening in a partywall without the consent of the

other co-owners.174 If the same is donewithout the consent of the other

co-owners, the latter may demand thatwhat has been done be undone

at the expense of the co-owner whomade such opening.175 But if the

same is done with the consent of theother co-owners, the 10-year period

of prescription for the acquisitionof an easement of light and view shall

commence to run from the timeof the making of such opening

Observance of Certain Distances

The law prohibits the making of windows, apertures, balconies, or other

similar projections which afford a direct view upon or towards an

adjoining land or tenement without leaving a distance of two meters

between the wall in which they are made and such contiguous property.

With respect to the side or oblique views upon or towards

suchconterminous property, the law requires that the distance be sixty

(60)centimeters.

Such distance shall be measured in cases of direct viewsfrom the outer

line of the wall when the openings do not project, fromthe outer line of

the latter when they do, and in cases of oblique viewfrom the dividing line

between the two properties

The foregoing requirement does not apply, however, to

buildingsseparated by a public way or alley, which is not less than three

meterswide, unless there is a special regulation and local ordinance

whichprovides to the contrary

Now, what is the effect of violation of the foregoing distance

requirement? When windows or balconies are opened in violation of the

distance requirement in Article 670 of the Civil Code, the samemay be

ordered closed because they constitute unlawful openings.

The mere making of such openingdoes not result in the running of the 10-

year prescriptive period for theacquisition of an easement of light and

view. Since the easement is anegative one, the 10-year period begins to

run only from the time of theformal prohibition mentioned in Articles 621

and 668 of the New CivilCode.

25

Opening Where Distances Not Observed

If a building is right on the boundary line or the distances required in

Article 670 are not observed, the owner of a wall adjoining a tenement or

piece of land belonging to another, which is not a party wall, may not

make an opening in the said wall except if the following conditions are

present:

(1) the opening must not be more than 30 centimeters square and

made at the height of the ceiling joists or immediately under the

ceiling, and with an iron grating imbedded in the wall and with a

wire screen; and

(2) it must be for the purpose of admitting light only and not for the

purpose of view

If these conditions are violated, the ownerof the tenement or property

adjoining the wall may demand for itsclosure or he may compel that the

foregoing requirements be compliedwith. Even in the absence of any

violation, the owner of the adjacentproperty may close the opening

should he acquire part ownership ofthe wall where the opening has been

made, if there be no stipulationto the contrary.

If the owner of the adjacent property is not entitled todemand for the

closure of the said opening because there is no violationof the conditions

outlined in the first paragraph of Article 669 andhe does not acquire part-

ownership of the wall, he may, nonetheless,obstruct the opening by

constructing a building on his land or by raisinga wall thereon contiguous

to that having such opening.

This he cando because it is simply an exercise of his right of ownership

over hisproperty. He may not, however, resort to this remedy if the owner

ofthe wall with the opening has already acquired an easement of

lightpursuant to the manner outlined in Articles 621 and 668 of the

CivilCode.

Section 6. Drainage of Buildings

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

or covering in such manner that the rain water shall fall on his

ownland 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 ofwhom is the owner of the roof. Even if it should fall on

his own land, theowner shall be obliged to collect the water in such

26

a way as not to causedamage to the adjacent land or tenement.

(586a)

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

theeasement of receiving water falling from roofs, may build in such

manneras to receive the water upon his own roof or give it another

outlet in accordancewith local ordinances or customs, and in such a

way as not tocause any nuisance or damage whatever to the

dominant estate. (587)

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

byother houses, and it is not possible to give an outlet through the

house itselfto the rain water collected thereon, the establishment of

an easementof drainage can be demanded, giving an outlet to the

water at the pointof the contiguous lands or tenements where its

egress may be easiest,and establishing a conduit for the drainage in

such manner as to causethe least damage to the servient estate,

after payment of the propertyindemnity. (583)

Easement of Drainage of Buildings

Concept

The easement of drainage of buildings is the right to divert orempty the

rain waters from one’s own roof or shed to the neighbor’sestate either

drop by drop or through conduits

Ownership of Rain Waters

Pursuant to the provisions of the Water Code of the Philippines,rain waters

falling on private lands shall belong to the State. However, many person

who captures or collects water by means of cisterns, tanks orpools shall

have exclusive control over such water and he shall also havethe right to

dispose of the same.

The owner of the land where the rainwaters fall may use the same even

without securing a permit from theNational Water Resources Council but

only for domestic purposes. In cases where the owner of a building does

not intend to collectthe rain waters falling on the roof or covering of his

building, he hasthe obligation to construct the roof or covering of his

building in suchmanner that the rain waters shall fall on his own land or on

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

theadjacent land may belong to two or more persons, one of whom is

theowner of the roof.

27

And even if it should fall on his own land, he is alsoobligated to collect the

water in such a way that it will not cause damageto the adjacent land or

tenement

Legal Easement of Drainage

An easement of drainage may be demanded subject to compliance with

the following requisites:

(1) The yard or court of a house must be surrounded by otherhouses

(“the dominant estate”) and it is not possible togive an outlet

through the house itself to the rain collectedtherefrom;

(2) The outlet to the water must be at the point of the contiguous

lands or tenements (“the servient estate”) where its egress may be

easiest;

(3) The conduit for the drainage must be established in suchmanner

as to cause the least damage to the servient estate;and

(4) Proper indemnity must be paid to the owner of the servientestate

Section 7. Intermediate Distances and Worksfor Certain Constructions and

Plantings

Art. 677. No constructions can be built or plantings made near

fortifyed places or fortresses without compliance with the conditions

requiredin special laws, ordinances, and regulations relating thereto.

(589)

Art. 678. No person shall build any aqueduct, well, sewer,

furnace,forge, chimney, stable, depository of corrosive substances,

machinery,or factory which by reason of its nature or products is

dangerous or noxious,without observing the distances prescribed by

the regulations andcustoms of the place, and without making the

necessary protective works,subject, in regard to the manner thereof,

to the conditions prescribed bysuch regulations. These prohibitions

cannot be altered or renounced bystipulation on the part of the

adjoining proprietors.

In the absence of regulations, such precautions shall be taken

asmay be considered necessary, in order to avoid any damage to

the neighboringlands or tenements. (590a)

28

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

landbelonging to another except at the distance authorized by the

ordinancesor customs of the place, and, in the absence thereof, at

a distance ofat least two meters from the dividing line of the estates

if tall trees areplanted and at a distance of at least fifty centimeters if

shrubs or smalltrees are planted.

Every landowner shall have the right to demand that trees

hereafterplanted at a shorter distance from his land or tenement be

uprooted.

The provisions of this article also apply to trees which have

grownspontaneously. (591a)

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

neighboringestate, tenement, garden or yard, the owner of the latter

shall have theright to demand that they be cut off insofar as they

may spread over hisproperty, and, if it be the roots of a neighboring

tree which should penetrateinto the land of another, the latter may

cut them off himself withinhis property. (592)

Art. 681. Fruits naturally falling upon adjacent land belong to

theowner of said land.

Intermediate Distances for Planting

Distance to Be Observed in Case of Planting Trees

Article 679 of the New Civil Code prohibits the planting of treesnear a

tenement or piece of land belonging to another person unless

thefollowing distance requirement is observed:

(a) the distance authorized by local ordinances or customs of

theplace, if any; or

(b) in default of the foregoing, at a distance of at least two

(2)meters from the dividing line of the estate in case of tall treesand

at a distance of at least 50 centimeters in case of shrubsor small

trees.

If the foregoing distance requirement is not followed, the ownerof the

adjacent land has the right to demand for the uprooting of thetrees

which were planted in violation of the rule.This remedy isalso available to

the owner of the adjacent land even with respect totrees which have

29

grown spontaneously at distances shorter than thatmentioned in the

immediately preceding paragraph

Right To Cut Branches and Roots

If the branches of any tree should extend over a neighboringestate,

tenement, garden or yard, the owner of the latter does not havethe right

to take the matter into his own hand by cutting of the branchesextending

on his property. Instead, he may demand that the protrudingbranches be

cut-off by its owner. If his demand is not acted upon, hehas to go to court

to seek authority for the cutting of the protrudingbranches

But with respect to the roots of a neighboring tree which penetrated into

the land of another, the owner of the latter may himself cut off the roots

found within his property. The reason for the difference is that with respect

to the roots, the same belong to the owner of the landwhere it is found by

reason of incorporation.This right of the adjacentowner does not prescribe

unless he has been, by a formal act, prohibitedby the owner of the tree

from cutting off the roots of the tree, in whichcase, the ten-year

prescriptive period for the establishment of a negativeeasement will

commence to run.

Fruits Naturally Falling

By way of exception to the rule in Article 441 that the fruitsbelong to the

owner of the trees, fruits which are naturally falling uponadjacent land

belong to the owner of the said land.This rule has apractical purpose —

which is to discourage the act of allowing branchesto protrude over

another’s land. This rule, however, does not apply tocases where the fruits

naturally fall on a public property in which case,the owner of the tree

retains ownership.

Section 8. Easement Against Nuisance (n)

Art. 682. Every building or piece of land is subject to the

easementwhich prohibits the proprietor or possessor from

committing nuisancethrough noise, jarring, offensive odor, smoke,

heat, dust, water, glare andother causes.

Art. 683. Subject to zoning, health, police and other laws and

regulations,factories and shops may be maintained provided the

least possibleannoyance is caused to the neighborhood.

Section 9. Lateral and Subjacent Support (n)

30

Art. 684. No proprietor shall make such excavations upon his landas

to deprive any adjacent land or building of sufficient lateral or

subjacentsupport.

Art. 685. Any stipulation or testamentary provision allowing

excavationsthat cause danger to an adjacent land or building shall

be void.

Art. 686. The legal easement of lateral and subjacent support is

notonly for buildings standing at the time the excavations are made

but alsofor constructions that may be erected.

Art. 687. Any proprietor intending to make any excavation

contemplated in the three preceding articles shall notify all owners

of adjacentlands.

Legal Easement of Lateral and Subjacent Support

Concept

The right of lateral and subjacent support is the right to haveland

supported by the adjoining land or the soil beneath.Each of twoadjoining

landowners is entitled to the support of the other’s land.Support is lateral

when the supported and the supporting lands aredivided by a vertical

plane. Support is subjacent when the supportedland is above and the

supporting land is beneath it.

Easement of Lateral and Subjacent Support

The right of lateral support ordinarily exists only with respect tothe soil in its

natural condition,but our Civil Code expressly includesbuildings in the

protection of this easement. In the words of the CodeCommission, this

kind of easement or servitude is so essential to thestability of buildings.

With this purpose in mind, the law prohibits anyexcavation upon one’s

land if the same will deprive any adjacent land or building of sufficient

lateral or subjacent support.In addition, thelaw prohibits any stipulation or

testamentary provision allowing suchkind of excavation.Any such

stipulation or testamentary provision isexpressly declared to be void.

Note that the easement of lateral and subjacent support is a negativeone

— it is in the form of prohibition on the part of a landowner frommaking

any excavation that will deprive the adjacent land or building of sufficient

lateral or subjacent support. If the right of lateral andsubjacent support is

31

violated, the adjoining landowner is entitled to seekinjunctive relief, in

addition to the right to recover damages.