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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);

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(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.

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

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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;

(2) To show that the proposed right of way is the

most convenient and the least onerous to third

persons;

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(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)

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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).

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:

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(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,.

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

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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

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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;

(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.

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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 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

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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)

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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

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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 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

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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 burden of proving the

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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.

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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 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

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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.

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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

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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-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.”

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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 estate

from the servitude by returning what he may have received

by way of indemnity without interest.

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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;

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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.(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.

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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)

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.

23

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.

24

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

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

25

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 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.

26

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 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.

27

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:

28

(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.

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.

29

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 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 be

acquired by virtue of prescription within a period of ten (10)

years. The commencement of the ten-year period of

prescription will depend on whether the easement is

positive or negative, as follows:

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

counted from the day on which the owner of the

dominant estate, or the person who may have made

30

use of the easement, commenced to exercise it upon

the servient estate; or

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

counted from the day on which the owner of the

dominant estate forbade, by an instrument

acknowledged before a notary public, the owner of

the servient estate, from executing an act which would

be lawful without the easement.

The foregoing principles are best explained if we are going

to consider the acquisition of easement of light and view

through prescription. At the outset, it must be pointed out

that a building may receive light in various manners in the

enjoyment of an easement of light, because the openings

through which the light penetrates may be made 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 own wall, no one has a right to do so in

the wall of another without the consent of the owner, and it

is also necessary, in accordance with Article 667 of the New

Civil Code, to obtain the consent of the other co-owner

when 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

31

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 the

adjacent property to cover up such windows by building on

his own land or raising a wall contiguously to the wall in

which the windows are opened, by virtue of the reciprocity

of rights which should exist between abutting owners, and

which would cease to exist if one could do what he pleased

on his property and the other could not do the same on his.

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

one’s own property, in the absence of some covenant or

express agreement to the contrary, is regarded as an act of

mere tolerance on the part of the owner of the abutting

property, and does not create any right to maintain the

windows to the prejudice of the latter.

The mere toleration of such an act does not imply on the

part of the abutting owner a waiver of his right to freely

build upon his land as high as he may see fi t, nor does it

avail the owner of the windows for the effects of possession,

because it is a mere possession at will.

From the foregoing, it follows that the easement of light with

respect to the openings made in one’s own edifice does

not consist precisely 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.”

The easement really consists of in prohibiting or restraining

the adjacent owner 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).

32

The latter coincides in its effects, from this point of view, with

the obligation of refraining from increasing the height of a

building (altius non tollendi), which, although it constitutes a

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

of any interruption of the light enjoyed by the adjacent

owner.

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

light and view necessarily includes an easement not to build

higher (altius non tollendi).

These two easements necessarily go together because an

easement of light and view requires that the owner of the

servient estate shall not build to a height that will obstruct

the window. They are, as it were, the two sides of the same

coin. While an easement of light and view is positive, that of

altius non tollendiis negative.

It will thus be observed that the owner of the servient estate

subject to such easement is under no obligation whatsoever

to allow anything to be done on his tenement, nor to do

anything there himself, but is simply restrained from doing

anything thereon which may tend to cut off the light from

the dominant estate, which he would undoubtedly be

entitled to do were it not for the existence of the easement.

If, then, the first condition is that which is peculiar to positive

easements, and the second condition that which is peculiar

to negative easements.

Consequently, the easement of lights in the 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 of the New Civil Code, except

by counting the time of possession from the date on which

the owner of the dominant estate may, by an instrument

acknowledged before a notary public, have prohibited the

33

owner of the servient estate from doing something which it

would be lawful for him to do were it not for the easement

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

and not in a wall the sole and exclusive property of the

owner of the dominant tenement, the easement of lights is

positive and the 10-year period of prescription commences

from the time of the opening of the window.

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

the consent of the other, make in a party wall a window or

opening of any kind, as provided in Article 667 of the New

Civil Code. Hence, the very fact of making such openings in

such a wall might, therefore, be the basis for the acquisition

of a prescriptive title without the necessity of any active

opposition, because it always presupposes the express or

implied consent of the other part owner of the wall, which

consent, in turn, implies the voluntary waiver of the right of

such part owner to oppose the making of such openings or

windows in such a wall.

The same rule will apply if the window is opened on the wall

belonging to one’s neighbor. The 10-year prescriptive

period commences from the time of the opening of the

window. Stated otherwise, if anyone shall open a window in

the wall of his neighbor, through which the light enters his

house, by this sole fact he shall acquire a prescriptive title to

the easement of light, if the time fixed by law (ten years)

expires without opposition on the part of the owner of the

wall

Making an Opening in Party Wall

34

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

other co-owners. No part-owner may, however, make an

opening in a party wall without the consent of the other co-

owners.174 If the same is done without the consent of the

other co-owners, the latter may demand that what has

been done be undone at the expense of the co-owner who

made such opening.175 But if the same is done with the

consent of the other co-owners, the 10-year period of

prescription for the acquisition of an easement of light and

view shall commence to run from the time of 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

such conterminous property, the law requires that the

distance be sixty (60) centimeters.

Such distance shall be measured in cases of direct views

from the outer line of the wall when the openings do not

project, from the outer line of the latter when they do, and

in cases of oblique view from the dividing line between the

two properties

The foregoing requirement does not apply, however, to

buildings separated by a public way or alley, which is not

less than three meters wide, unless there is a special

35

regulation and local ordinance which provides 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 same may be ordered closed

because they constitute unlawful openings.

The mere making of such opening does 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.

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 owner of the tenement

or property adjoining the wall may demand for its closure or

he may compel that the foregoing requirements be

36

complied with. Even in the absence of any violation, the

owner of the adjacent property may close the opening

should he acquire part ownership of the wall where the

opening has been made, if there be no stipulation to the

contrary.

If the owner of the adjacent property is not entitled to

demand for the closure of the said opening because there

is no violation of the conditions outlined in the first

paragraph of Article 669 and he does not acquire part-

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

opening by constructing a building on his land or by raising

a wall thereon contiguous to that having such opening.

This he can do because it is simply an exercise of his right of

ownership over his property. He may not, however, resort to

this remedy if the owner of the wall with the opening has

already acquired an easement of light pursuant to the

manner outlined in Articles 621 and 668 of the Civil Code.

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

37

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. (583)

Easement of Drainage of Buildings

Concept

The easement of drainage of buildings is the right to divert

or empty the rain waters from one’s own roof or shed to the

neighbor’s estate 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 or pools shall have

exclusive control over such water and he shall also have the

right to dispose of the same.

The owner of the land where the rain waters fall may use the

same even without securing a permit from the National

Water Resources Council but only for domestic purposes. In

cases where the owner of a building does not intend to

38

collect the rain waters falling on the roof or covering of his

building, he has the obligation to construct the roof or

covering of his building in such manner that the rain waters

shall fall on his own land or on 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.

And even if it should fall on his own land, he is also obligated

to collect the water in such a way that it will not cause

damage to 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

other houses (“the dominant estate”) and it is not

possible to give an outlet through the house itself to the

rain collected therefrom;

(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

such manner as to cause the least damage to the

servient estate; and

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

servient estate

Section 7. Intermediate Distances and Works for Certain

Constructions and Plantings

39

Art. 677. No constructions can be built or plantings

made near fortifyed places or fortresses without

compliance with the conditions required in 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)

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. (591a)

40

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 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. (592)

Art. 681. Fruits naturally falling upon adjacent land

belong to the owner 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

trees near a tenement or piece of land belonging to

another person unless the following distance requirement is

observed:

(a) the distance authorized by local ordinances or

customs of the place, 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 trees and at a distance of at least 50

centimeters in case of shrubs or small trees.

If the foregoing distance requirement is not followed, the

owner of the adjacent land has the right to demand for the

uprooting of the trees which were planted in violation of the

rule.This remedy is also available to the owner of the

adjacent land even with respect to trees which have grown

spontaneously at distances shorter than that mentioned in

the immediately preceding paragraph

41

Right To Cut Branches and Roots

If the branches of any tree should extend over a

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

the latter does not have the right to take the matter into his

own hand by cutting of the branches extending on his

property. Instead, he may demand that the protruding

branches be cut-off by its owner. If his demand is not acted

upon, he has to go to court to seek authority for the cutting

of the protruding branches

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 land where it is found by

reason of incorporation. This right of the adjacent owner

does not prescribe unless he has been, by a formal act,

prohibited by the owner of the tree from cutting off the

roots of the tree, in which case, the ten-year prescriptive

period for the establishment of a negative easement will

commence to run.

Fruits Naturally Falling

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

belong to the owner of the trees, fruits which are naturally

falling upon adjacent land belong to the owner of the said

land.This rule has a practical purpose — which is to

discourage the act of allowing branches to protrude over

another’s land. This rule, however, does not apply to cases

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)

42

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

easement which prohibits the proprietor or possessor

from committing nuisance through noise, jarring,

offensive odor, smoke, heat, dust, water, glare and

other causes.

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

laws and regulations, factories and shops may be

maintained provided the least possible annoyance is

caused to the neighborhood.

Section 9. Lateral and Subjacent Support (n)

Art. 684. No proprietor shall make such excavations

upon his land as to deprive any adjacent land or

building of sufficient lateral or subjacent support.

Art. 685. Any stipulation or testamentary provision

allowing excavations that cause danger to an adjacent

land or building shall be void.

Art. 686. The legal easement of lateral and subjacent

support is not only for buildings standing at the time the

excavations are made but also for 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 adjacent lands.

Legal Easement of Lateral and Subjacent Support

Concept

43

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

land supported by the adjoining land or the soil beneath.

Each of two adjoining landowners is entitled to the support

of the other’s land. Support is lateral when the supported

and the supporting lands are divided by a vertical plane.

Support is subjacent when the supported land 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 such kind of excavation. Any such

stipulation or testamentary provision is expressly declared to

be void.

Note that the easement of lateral and subjacent support is

a negative one — it is in the form of prohibition on the part

of a landowner from making any excavation that will

deprive the adjacent land or building of sufficient lateral or

subjacent support. If the right of lateral and subjacent

support is violated, the adjoining landowner is entitled to

seek injunctive relief, in addition to the right to recover

damages.