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EASEMENT
An easement is a real right constituted in another’s tenement whereby the owner of 4. AS TO NATURE OF THE LIMITATION (ARTICLE 616)
the latter must refrain from doing or allow something to be done on his property
for the benefit of another thing or person.
a. Positive
The term is “easement” is a common-law term. Servitude is the civil law term. A
servitude is broader in scope. For example, an easement does not include the right Positive easements are those which impose upon the owner of the servient estate the
to draw water. However at present, both terms are interchangeable. obligation of allowing something to be done or of doing it himself.

An easement grants less rights than a usufruct. An easement never carries with it i. In patiendo (Article 680, 1st part)Allowing something to be done
the right to possess. The rights granted by an easement are very limited.
ii. In faciendo (Article 680, 2nd part)Doing it yourself

A.CHARACTERISTICS b. Negative
Negative easements are those which prohibit the owner of the servient estate from doing
something which he could lawfully do if the easement did not exist. In allowing someone
1.Always a real right to do something in your estate, you are prohibited from preventing that person from
doing that something.
Basic Rule: There can be NO easement on personal property.
2005 NOTES: Some commentators believe that all easements are negative. Easements
2.Can only be imposed only on the property of another
are restrict the owners from doing something which they could otherwise do. What
It cannot be imposed on your property. appear to be positive easements are in fact really negative easements.

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

4.Inseparable from the tenements from which it is passively or actively attached

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

5.Indivisible 5.AS TO SOURCE

a. Voluntary (Article 619)

Established by the will of the owners

B.KINDS OF EASEMENTS
In North Negros Sugar Central vs. Hidalgo, North Negros Sugar Central (NNSC)
constructed across its properties a road connecting the mill site with the provincial
highway. NNSC made the road accessible to the public, a toll fee being charged in
1.AS TO BENEFIT cases of motor vehicles, & pedestrians being allowed free passage. A tuba saloon
was in the adjoining hacienda. The owner pf the saloon passed through the
a. Real (Article 613) connecting road as it was his only means of access. NNSC sought to enjoin the
owner of the tuba saloon from using the road in question since NNSC’s workers
A real easement is one in favor of another immovable – the dominant estate. got drunk.
This is more common than the personal easement. There are 2 very persuasive views in the case of NNSC vs. Hidalgo. The majority
said that NNSC voluntarily constituted an easement of way in favor of the general
b.Personal public. NNSC could not discriminate against certain persons who may want to
A personal easement is in favor of a community, or of one or more persons to whom the use the road. This is clearly a case of a servitude voluntarily constituted in favor
encumbered estate does not belong (i.e. easement for drawing water). of the community under Article 531. Having been devoted by NNSC to the use of
the public in general, the road is charged w/ public interest & while so devoted.
NNSC may not establish discriminatory exceptions against any private persons.
The dissent said that there was no easement by using the process of elimination.
2. AS TO MANNER OF EXERCISE (ARTICLE 615) A voluntary easement can be created only by will, by a donation or by a contract.
In this case, there was no will, donation, or contract.
a.Continuous
Continuous easements are those the use of which is or may be incessant, without the
intervention of any act of man( drainage, right to support a beam, aqueduct and easement
of light and view).
b. Legal (Article 619)-Established by law
b.Discontinuous

Discontinuous easements are those which are used at intervals and depend upon the acts
of man (i.e. right of way) c.Mixed-A mixed easement can be acquired through prescription

3. AS TO INDICATION OF EXISTENCE (ARTICLE 615)

a. Apparent
Apparent easements are those which are made known and are continually kept in view by
external signs that reveal the use and enjoyment of the same.For example, a right of way
is apparent if the path is marked off and a dam.
b. Non-apparent
Non-apparent easements are those which show no external indication of their existence.

For example, a right of way is non-apparent if the path is not marked or not building to a
certain height, lateral and subjacent support
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C. MODES OF ACQUIRING EASEMENTS

1.TITLE 2. PRESCRIPTION

Title means the juridical act which gives rise to the servitude (i.e. law, donation, ONLY continuous and apparent easements may be created by prescription.In order
contract, will) for an easement to be acquired by prescription, good faith or bad faith is irrelevant.
The easement can be acquired after the lapse of 10 years.
Easements are inseparable from the estate to which they actively or passively belong.

2022 notes: easement cannot be sold independently of the real property to w/c they may COUNTING OF THE 10 YEAR PRESCRIPTIVE PERIOD
be attached. Registration of Dominant Estate w/o Regis of voluntary easement in its favor
does not establish easements. Registration of servient estate w/o registration of easements
burdening it extinguishes voluntary easement.
a. Positive easements
Easements are indivisible. If the servient estate is divided between two or more persons, Start counting from the 1st act constituting the exercise of the easement was performed.
the easement is not modified, and each of them must bear it on the part which
corresponds to him.
If it is the dominant estate that is divided between two or more persons, each of them may
use the easement in its entirety, without changing the place of its use, or making it more b. Negative easements
burdensome in any other way. Start counting from the time when the owner of the dominant estate serves a notarial
prohibition on the owner of the prospective servient estate.
NOTE: Most easements are clearly positive or negative easements. However, an
easement of light and view is both a positive and a negative easement. There are special
EQUIVALENTS OF TITLE rules to determine the counting of the prescriptive period.
--Start counting from the 1st act constituting the exercise of the easement was performed
– if the opening through which the light and view passes is a party wall.
a.Deed of recognition (Article 623)
Rationale: If the neighbor does not like the opening, he can always close it.--
Art. 623. The absence of a document or proof showing the origin of an Start counting from the time when the owner of the dominant estate serves a notarial
easement which cannot be acquired by prescription may be cured by a prohibition on the owner of the prospective servient estate – if the opening is made on the
deed of recognition by the owner of the servient estate or by a final dominant owner’s own wall.
judgment.
Rationale: The neighbor cannot close the opening since it’s in
the dominant owner’s property.
b. Final judgment (Article 623)

c.Apparent sign (Article 624)—the apparent sign is not the placard

but the road or window. Art. 625. Upon the establishment of an easement, all the rights necessary for its use
are considered granted.
Art. 624. The existence of an apparent sign of easement between two
estates, established or maintained by the owner of both, shall be An example of this is Article 641. An easement for drawing water may carry with it the
considered, should either of them be alienated, as a title in order that the easement of right of way. If the well is in the middle of someone else’s property how can
easement may continue actively and passively, unless, at the time the one draw water without having to pass through that person’s property?
ownership of the two estates is divided, the contrary should be provided in
the title of conveyance of either of them, or the sign aforesaid should be Art. 626. The owner of the dominant estate cannot use the easement except for the
removed before the execution of the deed. This provision shall also apply benefit of the immovable originally contemplated. Neither can he exercise the
in case of the division of a thing owned in common by two or more easement in any other manner than that previously established.
persons (APPLICABLE ONLY IF SOLD TO DIFFERENT OWNERS).
Article 626 is a classic case of an intent that failed. Article 626 was meant to overrule the
In Amor vs. Florentino owned a house and a camarin. The house had 3 ruling in Valderrama vs. North Negros Sugar Co. since in this case, Valderrama executed
windows. From the said windows the house receives light and air from a contract with North Negros (NNSC) whereby NNSC agreed to install a sugar central of
the lot where the camarin stood. The camarin and the house were disposed minimum capacity of 300 tons for grinding and milling al sugar cane grown by
of. The windows were not closed. The SC said that an easement of light Valderrama who in turn bound himself to furnish the central all the cane they might
and view had been established. When ownership passed to theirs, nothing produce. A railroad was constructed on Valderrama’s land to transport the sugarcane
was done to the windows. The new owner of the house continued to harvested. However, Valderrama was unable to supply the required amount of sugarcane.
exercise the right of receiving light and air through those windows. The NNSC had to contract with other sugarcane growers. Valderrama alleges that the
visible and permanent sign of an easement is the title that characterizes its easement granted in favor of North Negros was only for the transportation of the
existence. Existence of the apparent sign had the same effect as a title of sugarcane of Valderrama. The SC said that the easement was created to enable NNSC to
acquisition of the easement of light and view upon death of original build and maintain a railroad for transportation of sugar cane. To limit use exclusively to
owner. the cane of the hacienda owners would make the contract ineffective. Furthermore, it is
against the nature of the easement to pretend that it was established in favor of the
There is an error in Article 624. Article 624 provides ―The existence…. as servient estates. The easement was created in favor of the corporation and not for the
title in order that the easement may continue…‖ the use of the word hacienda owners. The corporation may allow its wagons to pass by the tracks as many
―continue‖ is wrong. It should be ―the easement may arise‖ since there is times as it may deem fit.
no easement yet. There is no easement yet since both properties have only
1 owner. There are only seeds of a potential easement. The solution to the problem in Valderrama vs. NNSC would be to stipulate in the contract
that a violation of the any of the conditions would terminate the easement.

2022 notes: If easement is for benefit of community ,hacienda owner can close it if he
wants to, but he cannot as long as it is open ,discriminate one person and still allow
others to cross private road.

Art. 627. At his own expense, the owner of the dominant estate may make any
works on the servient estate which are necessary for the use and preservation of the
servitude.
Such works cannot alter or make the servitude more burdensome.
The owner of the dominant estate must notify the owner of the servient estate. The
owner of the dominant estate must choose the most convenient time and manner so
as to cause the least inconvenience to the owner of the servient estate.

Art. 628:If there are several dominant estates with a common servitude, the expenses
for its use and preservation shall be shouldered by the owners of the dominant
estates in proportion to the benefit that they receive.
In the absence of proof to the contrary, the presumption is that the benefits are
equal.
If the owner of the servient estate also makes use of the servitude, he must also
contribute in proportion to the benefit he receives.
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D. LEGAL EASEMENTS

D1. WATERS D3.PARTY WALL

Lower estates are obliged to receive:

1. The waters which naturally and without the intervention of man descend A PARTY WALL IS A COMMON WALL BUILT ALONG THE DIVIDING LINE
from the higher estates; as well as OF 2 ADJOINING ESTATES.

2. Stones or earth which they carry with them

NATURE OF A PARTY WALL
Owner of the lower estate cannot construct works, which will impede the easement, nor a.Easement
can the owner of the higher estate make works, which will increase the burden b. Co-ownership
Banks of rivers and streams, although of private ownership, are subject throughout their
entire length and within a zone of 3 meters along their margins, to the easement of public SPECIAL CHARACTERISTICS OF A PARTY WALL AS CO-OWNERSHIP
use in the general interest of navigation, floatage, fishing and salvage
i. This co-ownership is indivisible.Cannot physically divide
Estates adjoining the banks of navigable and floatable rivers are, subject to the easement ii. The parts pertaining to each co-owner can be materially designated and
of towpath, for the exclusive service of river navigation and floatage yet the whole wall is co-owned
iii. The rights of a co-owner of a party wall are greater than an ordinary
Compulsory easements for drawing of water and for watering animals can be imposed for co-owner
reasons of public use in favor of a town or village, after payment of the proper indemnity

Use of any water by anyone can be disposed by having the water flow through the
intervening estates but is obliged to do the following:
MAINTENANCE AND REPAIR OF PARTY WALL (ARTICLE 662)
1. Prove that he can dispose of the water and that it is sufficient for the use
intended General Rule: The expense for the repair and maintenance of the party wall shall be
2. Show that the proposed right of way is the most convenient and least shouldered by the co-owners in proportion to the right of each.
onerous to 3rd persons
3. Indemnify the owner of the servient estate in the manner determined by Presumption: Co-owners have equal proportion (share equally in the expenses).
the laws and regulations Easement of aqueduct is continuous and apparent
even though the flow of water may not be continuous (Arts. 637-638) Exceptions:

a.The expense for the repair of the party wall can be shouldered by 1 co-owner, but the
D2. RIGHT OF WAY co-owner who does not contribute must renounce his share in the party wall.
Commentators are of different opinions regarding the extent of the renunciation – total or
REQUISITES FOR AN EASEMENT OF RIGHT OF WAY proportional to the amount of repairs.

b.When the defects are caused by 1 owner, he shall pay for all the expenses for repair If
the damage was due to the fault of one owner
a.The dominant estate is surrounded by other immovables without an adequate
outlet to a public highway
The right of way may be demanded:
i. When there is absolutely no access to a public highway
ii. When, even if there is one, it is difficult or dangerous to use, or is grossly insufficient PRESUMPTION OF PARTY WALL: PARTY WALL IS PRESUMED WHEN A
(i.e. access is through a steep cliff) WALL DIVIDES
a.Adjoining buildings
Mere inconvenience is not aground for demanding the easement of right of way (i.e. there b.Gardens or yards situated in cities, towns or in rural communities
is an adequate outlet, but it is not paved) c.Rural lands

b. The dominant estate is willing to pay the proper indemnity

THIS PRESUMPTION MAY BE REBUTTED IF THERE IS A CONTRARY
If the right of way is permanent, payment shall be equivalent to the value of the land
occupied and the amount of the damage caused to the servient estate. a.Title;
Such payment for permanent use does not mean that the owner of the dominant estate b.Proof;
now owns such portion of the land.
If a piece of land is acquired by sale, exchange, partition or partition, and the land is c.Exterior sign
surrounded by other estates of the vendor, exchanger or co-owner, a right of way shall be
given without having to pay the indemnity (Article 652) The following are exterior signs which will be rebut the presumption

If it is the land of the vendor, exchanger or co-owner that becomes isolated, he may i. A window or opening in the dividing wall
demand a right of way, provided that he pay the proper indemnity (Article 653)
ii. On 1 side, the wall is straight and then the wall juts out A buttress is
If a piece of land is acquired by donation, and such land is surrounded by other estates of placed part where the wall juts out. This is done in order to prevent the
the donor, the donee must pay the proper indemnity in order to get a right of way (Article neighbor from invading his property.
652).
iii.The entire wall is built within the boundary of 1 of the estates (not along
If it is the land of the donor that becomes isolated, he may demand a right of way without
the boundary of the 2 estates)
having to pay the indemnity (Article 653).
iv. When the wall supports the building of 1 estate but not the other

c.The isolation was not due to the acts of the proprietor of the dominant estate v. When the dividing wall between the courtyards, gardens, and tenements is
constructed in such a way that the coping sheds the water upon only 1 of the
d.That the right of way claimed is at the point least prejudicial to the servient estate; estates
and insofar as consistent with this rule, where the distance from the dominant estate
to a public highway may be the shortest. vi. Stepping stones only on 1 side of the wall

vii.When 1 estate is enclosed but the other is not

EXTINGUISHMENT OF EASEMENTS OF RIGHT OF WAY (ARTICLE 655)
The fact that an adequate outlet has been created does not automatically extinguish the a
legal easement of right of way. It must be asked for by the owner of the servient estate.
The owner of the dominant estate cannot demand that the easement be
extinguished.Article 655 is applicable only to legal easements of right of way. It does
not apply to voluntary easements of right of way.
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D4.LIGHT AND VIEW D5.OTHER SO-CALLED LEGAL EASEMENTS

A1. DRAINAGE OF BUILDINGS (ARTICLES 674-676)

2 DIFFERENT EASEMENTS
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
1. Easement of light (luminis) 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
The easement of light is the right to make an opening not greater than 30 should fall on his own land, the owner shall be obliged to collect the water in such a
centimeters square and to receive light from another’s tenement. way as not to cause damage to the adjacent land or tenement.

The opening must be made on the ceiling or if on the wall, there must be Art. 675. The owner of a tenement or a piece of land, subject to the easement of
an iron grating (so you can’t look out, otherwise, it becomes an easement receiving water falling from roofs, may build in such manner as to receive the water
of light and view). upon his own roof or give it another outlet in accordance with local ordinances or
customs, and in such a way as not to cause any nuisance or damage whatever to the
No minimum distance required. dominant estate.

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
2. Easement of light and view (luminis et prospectus) 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
The easement of light and view is the right to open windows and apertures cause the least damage to the servient estate, after payment of the property
and to bar the owner of the servient estate to block the view. indemnity.
The easement of view necessarily carries with it the easement of light.
This is not really an easement. Rather, it is a limitation of the right of ownership.
Direct View: There must be a minimum distance of 2 meters from the
wall of the opening and the contiguous property.

Oblique View: There must be a minimum distance of 60 centimeters from

the wall of the opening and the contiguous property. A2. INTERMEDIATE DISTANCES (ARTICLES 677-681)

Non-observance of the minimum distances will not create an easement. Art. 677. No constructions can be built or plantings made near fortified places or
fortresses without compliance with the conditions required in special laws,
The owner of the servient estate cannot build within 3 meters from the ordinances, and regulations relating thereto.
boundary between the servient and the dominant estate. Thus, there is 5
meters between the wall of the opening and any structure of the servient Art. 678. No person shall build any aqueduct, well, sewer, furnace, forge, chimney,
estate. stable, depository of corrosive substances, machinery, or factory which by reason of
its nature or products is dangerous or noxious, without observing the distances
The obligation not to build higher accompanies the easements of light and prescribed by the regulations and customs of the place, and without making the
view. necessary protective works, subject, in regard to the manner thereof, to the
conditions prescribed by such regulations. These prohibitions cannot be altered or
renounced by stipulation on the part of the adjoining proprietors.
In the absence of regulations, such precautions shall be taken as may be considered
necessary, in order to avoid any damage to the neighboring lands or tenements.

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,
ACQUIRING BY PRESCRIPTION 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
a. Start counting from the 1 st act constituting the exercise of the easement was performed centimeters if shrubs or small trees are planted.
– if the opening through which the light and view passes is a party wall. Every landowner shall have the right to demand that trees hereafter planted at a
shorter distance from his land or tenement be uprooted.
Rationale: If the neighbor does not like the opening, he can always close it. The provisions of this article also apply to trees which have grown spontaneously.

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
b. Start counting from the time when the owner of the dominant estate serves a notarial that they be cut off insofar as they may spread over his property, and, if it be the
prohibition on the owner of the prospective servient estate – if the opening is made on the roots of a neighboring tree which should penetrate into the land of another, the
dominant owner’s own wall. latter may cut them off himself within his property.

Rationale: The neighbor cannot close the opening since it’s in the dominant owner’s Art. 681. Fruits naturally falling upon adjacent land belong to the owner of said
property. land.

Again, this is a limitation of ownership and not an easement. This is basically zoning
which can be modified by laws and ordinances.

A3. LATERAL AND SUBJACENT SUPPORT (ARTICLES 684-687)

Sec. 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.

In lateral support, there is an obligation to see to it that the structures on your neighbor’s
land will not collapse from your land’s lack of support.
In subjacent support, the owner of the surface and the sub-surface are different.
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A4. EASEMENT AGAINST NUISANCES (ARTICLES 682-683) RIGHT OF INDIVIDUAL TO ABATE A PUBLIC NUISANCE

KINDS OF NUISANCES Requirements for Abatement of a Public Nuisance by a Private Person:

1.Public (or common) nuisance – affects the public at large or a community or I. Any private person may abate a public nuisance which is specially injurious to
considerable number of persons or their properties. Thus: him by removing, or if necessary, by destroying the thing which constitutes the
A house constructed partly on a municipal street affects adversely the use of that same, without committing a breach of the peace, or doing unnecessary injury.
street by the public; and
An unsanitary piggery located in residential area emitting offensive odors and II. But it is necessary that:
pernicious to the health of residents.
A noisy or dangerous factory in a residential district 1. Demand has been made upon the owner or possessor of the property to abate the
nuisance
2. Private nuisance – affects an individual or a limited number of persons only (Art. 2. Demand has been rejected
695). Examples: 3. Abatement be approved by the district health officer and executed with the
The wall of a property in danger of collapsing on the adjoining property owned by assistance of the local police
another person 4. Value of the destruction does not exceed P3,000
Obstruction to the right of way of a property and its residents 5. If public nuisance, it must be specially injurious to him (Art. 704)

NUISANCE PER SE – one which is a nuisance at all times and under any
circumstances, regardless of location or circumstances, such as a house constructed on a
public street. (Pwede ipasirado agad) RIGHT TO DAMAGES

NUISANCE PER ACCIDENS – nuisance by reason of location, surrounding or in the A person may maintain an action for damages caused by a nuisance.
manner it is conducted or managed. (De Leon, supra, p. 554-555). It is not a nuisance by
its nature but it may become so by reason of locality, surrounding, or circumstances (e.g. If the nuisance is temporary or recurrent in character, each repetition of it gives rise to a
slaughter house). (idaan muna sa Due Process bago isirado) new cause of action.

The remedies of abatement and damages are cumulative; hence, both may be demanded.
4BLUE95. A basketball court, an object of recreation in a barangay, is a mere nuisance
per accidens and not per se, as it does not pose an immediate danger to safety of persons Even if nuisance no longer exists, the aggrieved person may still pursue a civil action for
and property. Hence, it cannot be summarily abated. (Cruz v. Pandacan Hiker’s Club, GR damages suffered during the existence of the nuisance.
No. 188213, 2016)

REMEDIES AGAINST PUBLIC NUISANCE

LIABILITIES
The remedies against a public nuisance are:
He who creates a nuisance is liable for the resulting damages and his liability continues
as long as the nuisance continues. 1. Criminal prosecution under the Revised Penal Code or a local
Every successive owner or possessor of property who fails or refuses to abate a nuisance ordinance;
in that property started by a former owner or possessor is liable therefor in the same 2. Civil action, including damages;
manner as the one who created it (Art. 696). 3. Abatement, summary and without judicial proceedings

When successor to the property may be held liable The successor, to be held liable, must Abatement is the exercise of police power which includes the right to
knowing fail or refuse to abate the nuisance. destroy property regarded as a public health and safety, and there is
accordingly no obligation for compensation.

NO PRESCRIPTION

Lapse of time cannot legalize any nuisance, whether public or private (Art. 689). REMEDIES AGAINST A PRIVATE NUISANCE

Effect of lapse of time The remedies against a private nuisance are the same as in the case of public nuisance,
The action to abate a public or private nuisance is not extinguished by prescription except that criminal prosecution is not allowable. Hence the only remedies are a civil
(Art. 1143[2], Civil Code). action and abatement without judicial proceedings (extrajudicial abatement) (Art. 705)

Exception
Arts. 698 and 1143(2) do not apply to easements which are extinguished by
obstruction and nonuser for ten years. (See Art. 631).

ALL REMEDIES MAY BE SIMULTANEOUSLY PURSUED TO REMOVE A

EFFECTS ON OWNERS NUISANCE

Owner of nuisance property is not entitled to compensation. (Art. 436) Aside from the remedy of summary abatement which should be taken under the
Subsequent owner of the property, having full knowledge of the existence of the nuisance parameters stated in Art. 704 (for public nuisances) and Art. 706 (for private nuisances),
and did not remove the nuisance, is solidarily liable for the injuries and damages caused. a private person whose property right was invaded or unreasonably interfered with by the
act, omission, establishment, business or condition of the property of another, may file a
The successor, to be held liable, must knowingly fail or refuse to abate the nuisance civil action to recover personal damages.

Abatement may be judicially sought through a civil action therefor if the pertinent
requirements under the Civil Code for summary abatement, or the requisite that the
nuisance is a nuisance per se, do not concur.
DOCTRINE OF ATTRACTIVE NUISANCE To note, the remedies of abatement and damages are cumulative; hence, both may be
demanded. (Rana v. Uy, GR No. 192861 & 192862, 2014)
Attractive Nuisance – dangerous instrumentality or appliance which is likely to attract
children to play

Reason for the Doctrine: The principal reason for the doctrine is that the condition or
appliance in question although its danger is apparent to those of age, is so enticing or CRIMINAL PROSECUTION
alluring to children of tender years as to induce them to approach, get on or use it, and
this attractiveness is an implied invitation to such children. (Hidalgo Enterprises, Inc. v. Criminal prosecution is only a remedy against a public nuisance. In private nuisance,
Balandan, GR No. L-3422, 1952) criminal prosecution is NOT a remedy. However, if indeed a crime has been committed,
One who maintains on his premises dangerous instrumentalities or appliances of a as defined by the Revised Penal Code, criminal prosecution can proceed.
character likely to attract children in play, and who fails to exercise ordinary care to
prevent children from playing therewith or resorting thereto, is liable to a child of tender
years who is injured thereby, even if the child is technically a trespasser in the premises.
(Hidalgo Enterprises, Inc. v. Balandan,, GR No. L-3422, 1952) JUDGMENT WITH ABATEMENT

4BLUE95 Note: Generally not applicable to bodies of water, artificial as well as natural Besides being held liable for damages or being sentenced to the penalty, the Court may
in the absence of some unusual condition or artificial feature other than the mere water also order to abate the nuisance.
and its location.
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EXTRAJUDICIAL ABATEMENT
E. EXTINGUISHMENT OF EASEMENTS
Any person injured by a private nuisance may abate it by removing, or if necessary, by
destroying the thing which constitutes the nuisance, without committing a breach of the
peace or doing unnecessary injury. However, it is indispensable that the procedure for 1. By merger of ownership of the dominant and servient estates
extrajudicial abatement of a public nuisance by a private person be followed. (Art. 706)
The merger must be complete, absolute and permanent.
Note: An extrajudicial abatement can only be applied for if what is abated is a nuisance If the owner of the servient estate becomes a co-owner of the dominant estate, the
per se and not nuisance per accidens. easement subsists since the merger is not complete.
If the sale is a pacto de retro sale, then the merger is not complete. The easement is only
suspended
Requisites for extrajudicial abatement

1. The nuisance must be specially injurious to the private person affected 2. Extinctive prescription
2. No breach of peace or unnecessary injury is committed
3. Demand has been made upon the owner or possessor of the property to abate the All the dominant owner of the estate has to do is to stop using it continuously.
nuisance In the case of legal easements, the right to claim is never extinguished. All the dominant
4. Demand has been rejected owner of the estate has to do is to claim it.
5. Abatement must be approved by the district health officer and executed with the
assistance of the local police
6. Value of the destruction does not exceed P3,000 (Art. 704)
3. When either or both of the estates fall into such condition that the easement
Note: A private person or a public official extrajudicially abating a nuisance shall be cannot be used. However, it shall be revived if the subsequent condition of either or
liable for damages to the owner of the thing abated: both of the estates should permit its use. This is however subject to extinctive
1. If he causes unnecessary injury; prescription
2. If an alleged nuisance is later declared by the courts to be not a real nuisance. (Art.
707) This is not a ground for extinguishments. This is a ground for suspension of the
easement. The suspension may eventually lead to extinguishment of the easement if
While DPWH, by virtue of the AO issued by the President, may abate the billboards for there is extinctive prescription.
being public nuisance if it is specially injurious to it, the following procedure must be
necessarily followed in order to satisfy the standards of due process:

1. That demand be first made upon the owner or possessor of the property to abate the 4. Expiration of the term of the fulfillment of the condition
nuisance;
2. That such demand has been rejected;
3. That the abatement be approved by the district health officer and executed with the 5. Renunciation of the owner of the dominant estate
assistance of the local police and
4. That the value of the destruction does not exceed three thousand pesos. There is dispute as to whether or not the renunciation can be tacit or not. it can be tacit
5. (Department of Public Works and Highways v. City Advertising Ventures Corp., G.R. under Article 6 of the Civil Code. Rights may be waived. There is no prescribed form.
No. 182944, 2016).

6. Buy off the easement

SPECIAL INJURY TO INDIVIDUAL

When a private person may sue on account of a public nuisance 7. Expropriation of the servient estate

a) Ordinarily, it is the mayor who must bring the civil action to abate a public nuisance There can be no easement over property of the public dominion.

b) But a private individual can also do so, if the public nuisance is SPECIALLY
INJURIOUS to himself. 8. Permanent impossibility to make use of the easement
The action may be for injunction, abatement or for damages. (Art. 703, Paras, p. 750)

9. Annulment or cancellation of the contract of easement

DEFENSES TO ACTION

10. Resolution of grantor’s right to create theeasement

1. Estoppel - One who voluntarily places himself in a situation whereby he suffers an
injury will not be heard to say that his damage is due to a nuisance maintained by another A sells land to B via a pacto de retro sale. B while being a vendee de retro grants an
easement to C. If A, the vendor, redeems, the easement given to C is extinguished.
2. The non-existence of the nuisance

3. Impossibility of abatement

4. Public necessity (Paras, p. 752) XIII. WHO MAY SUE ON PRIVATE NUISANCE 11. Registration of the servient estate as free and without any encumbrance in the
Any person injured by a private nuisance may file a civil action or cause the summary Torrens System in favor of an innocent purchaser for value
abatement thereof. Possession of the real estate alone is sufficient to sustain an action.
Legal title is not necessary

12. Cessation of necessity, in case of a legal easement of right of way (Article 655)

2010 notes: as a general rule, easements ceases if it is stated in deed or if not stated, it the
sign is removed.

A5.VOLUNTARY EASEMENTS

One can create voluntary easements in favor of another immovable or persons on one’s
property.
In La Vista vs. CA, the easement of right of way was not a legal easement but was created
because of a contract. Since it was created by a contract, the requisites for a right of way
under Arts. 649 and 650 need not be followed.
 7

BAR MATTER 2023 PROOF OF EASEMENT:

The presumption is always against the existence of an easement for ―property is always
ACQUISITION OF EASEMENT THROUGH PRESCRIPTION: presumed free from any and all encumbrances.‖ Hence, the law requires that the
easement must be acquired either by a title or by prescription
(a) If the easement is both continuous and apparent, it may be acquired by virtue of
prescription within a period of 10 years
WHAT ARE THE RIGHTS OF THE LOT BUYERS, IF ANY?
(b) The commencement of the 10-year period of prescription will depend on whether the
easement is positive or negative, as follows: Prior to the grant of an easement, the buyers of the dominant estate have no other right
than to compel grant of easement of right of way.
1) If the easement is positive, the 10-year period is counted from the day on which the Since the properties of the buyers are surrounded by other immovables and has no
owner of the dominant estate, or the person who may have made use of the easement, adequate outlet to a public highway and the isolation is not due to their acts, buyers may
commenced to exercise it upon the servient estate demand an easement of a right of way provided proper indemnity is paid and the right of
way demanded is the shortest and least prejudicial to Ernie. (Villanueva v. Velasco, G.R.
2) If the easement is negative, the 10-year period is counted from the day on which the No. 130845, November 27, 2000).
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

MAY AN EASEMENT OF RIGHT OF WAY BE ACQUIRED BY

PRESCRIPTION?
NO. Only continuous and apparent easements may be acquired by virtue of prescription 4BLUE 95. There can be no easement over a usufruct. Since an easement may be
of 10 years. An easement of right of way may be apparent but it is not a continuous constituted only on a corporeal immovable property, no easement may be constituted on a
easement because its use is at intervals and depends upon the acts of man. • It can be usufruct which is not a corporeal right
exercised only if a man passes or puts his feet over somebody else's land like a road for There can be no usufruct over an easement. While a usufruct maybe created over a right,
the passage of vehicles or persons such right must have an existence of its own independent of the property. A servitude
cannot be the object of a usufruct because it has no existence independent of the property
2005 BAR: Don was the owner of an agricultural land with no access to a public to which It attaches.
road. He had been passing through the land of Ernie with the latter's acquiescence
for over 20 years. • Subsequently, Don subdivided his property into 20 residential 4BLUE95 There can be no easement over another easement for the reason that an
lots and sold them to different persons. Ernie blocked the pathway and refused to easement may be constituted only on a corporeal immovable. An easement, although it is
let the buyers pass through his land. • a) Did Don acquire an easement of right of a real right over an immovable, is not a corporeal right. • There is a Roman maxim which
way? No, Don did not acquire an easement of right of way. An easement of right of says that: There can be no servitude over another servitude
way is discontinuous in nature — it is exercised only if a man passes over
somebody's land. Under Article 622 of the Civil Code, discontinuous easements,
whether apparent or not, may only be acquired by virtue of a title .
Further, possession of the easement by Don is only permissive, tolerated or with the
acquiescence of Ernie. It is settled in the case of Cuaycong v. Benedicto (G.R. No.
9989, March 13, 1918) that a permissive use of a road over the land of another, no
matter how long continued, will not create an easement of way by prescription.

MAY AN EASEMENT OF LIGHT AND VIEW BE ACQUIRED

BYPRESCRIPTION?
YES. An easement of light and view can be acquired through prescription counting from
the time when the owner of the dominant estate formally prohibits the adjoining lot
owner from blocking the view of a window located within the dominant estate.

OPENING A WINDOW IN ONE'S OWN WALL:

• This act, per se, does not create an easement because the property is used
by its owner merely in the exercise of ownership and not as an exercise of
an easement.
• The owner of the adjacent property, on the other hand, may cover such
windows by building on his own land or raising a wall contiguously to the
wall in which the windows are opened

4BLUE 95. In this situation, an easement is created only when the one
who opened the window prohibits or restrains the owner of the adjacent
property from doing anything which may tend to cut off or interrupt the
light or block the view of the former

The easement, being a negative one, is acquired by prescription only after

the lapse of 10 years 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

OPENING A WINDOW IN A PARTY WALL

• If the window, on the other hand, is opened in a party wall, the easement
of light and view 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 NCC
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 windows in such a wall

LIWAG VS. HAPPY GLEN LOOP HOMEOWNERS ASSOCIATION,INC : Court

ruled that the water facility on a certain lot in a subdivision, which is an encumbrance for
the benefit of the community, is a continuous and apparent easement, because it is used
incessantly without human intervention, and because it is continually kept in view by the
overhead water tank, which reveals its use to the public. • Since the facility was
continuously used for more than 30 years as the residents' sole source of water, it was
held that an easement of water facility has already been acquired through prescription