1

Legal easement
- created by operation of law
Voluntary easment
Agreement or will between the parties
QUESTION: Is there a need for you to establish
necessity in a voluntary easement?
ANSWER: No. Necessity is NOT required. The fact that
there is an agreement, regardless if theres already an
access of public highway, it is unnecessary to prove
that there is another adequate outlet.

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

which naturally and without the intervention of man
descend from the higher estates, as well as the stones or
earth
which
they
carry
with
them.
The owner of the lower estate cannot construct works
which will impede this easement; neither can the owner of
the higher estate make works which will increase the
burden
QUESTION: How natural is natural?
ANSWER: Without intervention of man,
QUESTION: Flood for example, coming from
mountain, if it cascades to lower lands. Will you say
that flood is not covered since this is a result of the
cutting of trees?
ANSWER: For as long as it is NOT shown that the
course of the water is DELIBERATELY intended to
fall into your property, then ART. 637 governs. So
ART. 637 covers that situation (the flood situation).
Art. 638. The banks of rivers and streams, even in case they
are of private ownership, are subject throughout their
entire length and within a zone of three meters along their
margins, to the easement of public use in the general
interest of navigation, floatage, fishing and salvage.

modified by Article 51 of the Water Code of

the Philippines (PD no 1067).
o 3 meters urban
o 20 meters agricultural
o 40 meters forest

(**Article 51. The banks of rivers and streams and the

shores of the seas and lakes throughout their entire length
and within a zone of three (3) meters in urban areas,
twenty (20) meters in agricultural areas and forty (40)

meters in forest areas, along their margins are subject to

the easement of public use in the interest of recreation,
navigation, floatage, fishing and salvage. No person shall
be allowed to stay in this zone longer than what is
necessary for recreation, navigation, floatage, fishing or
salvage or to build structures of any kind.)

QUESTION: If theres an easement for public use,

What will be the extent? Use and enjoyment? What
kind of enjoyment?
ANSWER: It means that other persons should be
allowed unhampered access even if its in front of
your property. You, the owner, are not allowed to
make constructions, and you should allow passage of
others since its public use.
Art. 640. Compulsory easements for drawing water or for
watering animals can be imposed only for reasons of public
use in favor of a town or village, after payment of the
proper indemnity.
Art. 641. Easements for drawing water and for watering
animals carry with them the obligation of the owners of the
servient estates to allow passage to persons and animals to
the place where such easements are to be used, and the
indemnity shall include this
Art. 644. The easement of aqueduct for private interest
cannot be imposed on buildings, courtyards, annexes, or
outhouses, or on orchards or gardens already existing.
Art. 645. The easement of aqueduct does not prevent the
owner of the servient estate from closing or fencing it, or
from building over the aqueduct in such manner as not to
cause the latter any damage, or render necessary repairs
and cleanings impossible.
Art. 646. For legal purposes, the easement of aqueduct shall
be considered as continuous and apparent, even though the
flow of the water may not be continuous, or its use depends
upon the needs of the dominant estate, or upon a schedule
of alternate days or hours.

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

suggest that you are allowed to make irrigation in a river, do
NOT rely solely on the civil code. Before you can make
obstructions like utilization of water, and its NOT for
personal consumption, you have to secure a water permit
from the National Water Resources Council or its subsequent
agency (kay usab2 pangan ani nla) for commercial purposes.
If personal, NO need. In terms of irrigation, to the National
Irrigation Administration, otherwise, not securing permit will
be considered a NUISANCE.)

EH405 PROPERTY FINALS NOTES Circa 2013

LEGAL EASEMENT

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EASEMENT OF RIGHT OF WAY

QUESTION: Does the law provide for a specific width

of easement so that it can be considered as adequate?

Requisites:

ANSWER: Depends on the circumstances (but this is

very general, be specific. What does the law provide?)
As found in Art. 651, that which is sufficient for the
needs of the dominant estate and may
accordingly be changed
Art. 651. The width of the easement of right of way shall be
that which is sufficient for the needs of the dominant estate,
and may accordingly be changed from time to time
QUESTION: So there is no fixed width. Do you
anticipate the problem here in relation to other
requisites? Depending on the needs of the dominant
estate vs. Least prejudicial to the servient owner?

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

favorite area in the bar is to enumerate
the essential requisites).
QUESTION: What do you mean by adequate outlet? If
the one asking for an easement found it very difficult
and inconvenient to avail existing outlet, would we
consider it as inadequate such that he should be
entitled to a grant of right of way assuming that he
can prove the other requisites?
ANSWER: No.
Ramos Sr. vs. Gatchalian Realty Inc.

complaint for an easement of right of way

was filed by Ramos coz Gatchalian Realty Inc
built high concrete wall, thus blocking the
formers entrance/exit to public highway
Issue: WON Ramos have successfully shown
that all requisites for the grant of easement
are present
Ramos contends that other road is bumpy &
impassable especially during rainy seasons
because of flood waters, mud & tall talahib
grasses.
HELD: The fact that its still undeveloped &
causes inconvenience when he uses it does
not bring him within the ambit of the legal
requisite. Mere convenience for the
dominant estate is NOT enough to serve as
its basis. There must be real, NOT a fictitious
or artificial necessity for it.

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

defendants were able to prove that there is already an
existing outlet, show and prove that outlet is NOT adequate
for your needs.)

ANSWER:
Encarnation vs. CA

Encarnation asked for 1 increase width area in the

right of way (coz jeep couldnt pass through), that may
cause a reduction of use of the property of the
servient estate
Issue: WON Encarnation is entitled to a widening of an
already existing easement of right-of-way
HELD: He is entitled. And the court reconciled. The
court suggested that dominant owner
(Encarnation) give up a portion of his estate so it
is not prejudicial to the servient estate (this is to
resolve conflict between depending on the needs of the
dominant estate vs. least prejudicial to the servient
owner).
(NOTE: Right-of-way cases involve issues that are purely factual.
Issues like this should be solved in a case to case basis. Kung walay
ikahatag ang dominant, we will cross the bridge when we get there.
Requirement on adequate outlet involves purely factual issues as well.
And how adequate is adequate? No amount of the Civil Code provision
can resolve that since it is an issue of fact.)

Quimen v CA

Issue: What should be preferred, as between a rightof-way that would demolish a store of strong
materials, vs. another right-of-way which although
LONGER, will ONLY require an avocado tree to be
cut down?
HELD: In easement of right of way that easement
where the way is SHORTEST and will cause the
LEAST PREJUDICE shall be chosen. If the two
circumstances do not occur, LEAST PREJUDICE
PREVAILS over shortest distance.

EH405 PROPERTY FINALS NOTES Circa 2013

The dominant estate is surrounded with

other estates and no adequate outlet or
access to the highway
2. After the payment of proper indemnity
3. Isolation is NOT due to acts of proprietor
of the dominant estate
4. Must be least prejudicial to the servient
estate and so far as it is consistent that
shortest distance may be established
(22:19)
1.

Costabella Corporation vs. CA

Private respondents assailed the petitioners closure

of the original passageway which they claimed to be
an ancient road right of way that had been existing
before WWII and since then had been used by them in
going to and from Lapu-lapu city.
Issue: WON respondents as owners of adjoining
properties had acquired an easement of right of way,
in the form of passageway, on the petitioners
property.
HELD: Easement of right-of-way is discontinuous and
as such, cannot be acquired by prescription.
Moreover, true standard of a grant of legal right is
ADEQUACY, not convenience. Respondents failed to
prove the requisites. They failed to indicate in the
complaint or manifest that they were willing to
indemnify (2nd req), and failed to prove that isolation
of their property was not due to their predecessorsin-interests own acts (3rd req). Lastly, they failed to
allege that passageway they seek to be re-opened is at
point least prejudicial (4th req).

Filing a case for easement of right of way

TITLE of your case:
DECLARATION OF AN EASEMENT OF
RIGHT OF WAY
-the court will only confirm that
requisites are there. It CANNOT make an
easement where requisites are not there.
In other words, dili ka imandatory order
sa court na taga-an ug easement. All the
court will do is to just to receive the
evidence whether requisites are
established. That is why the dispositive
portion would state that it is hereby
declared.. NOT it is hereby ordered..
(In Declaration of Easement of right of way a.k.a legal
easement, your allegations must be tailored in such a manner that
they jive with the requisites. In your complaint, do not just state the
requisites (writing merely the requisites) since it will be considered as
merely conclusions of law. )

QUESTION: In the requiste/ criterion on Indemnity,

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

you filed a complaint, you have not yet known the

value of the property? And failure to allege is a fatal
mistake? Like in the Costabella case, where it states
Besides, plaintiff in this case did not allege in the
complaint their readiness to pay the appropriate
indemnity?
ANSWER: Allege in the complaint that you are ready,
able, and willing to pay the indemnity that will be
ordered by the court. If this is not in the complaint,
complaint suffers a fatal defect which is failure to
state a cause of action.
Art. 652. Whenever a piece of land acquired by sale,
exchange or partition, is surrounded by other estates of the
vendor, exchanger, or co-owner, he shall be obliged to grant
a right of way without indemnity.
In case of a simple donation, the donor shall be indemnified
by the donee for the establishment of the right of way.
(567a)
Art. 653. In the case of the preceding article, if it is the land
of the grantor that becomes isolated, he may demand a
right of way after paying a indemnity. However, the donor
shall not be liable for indemnity.
QUESTION: You purchased a property which is an
interior lot, surrounded by other immovables owned
by the seller, can you compel the said seller to give
you a right of way? And, are you bound to pay the
seller the indemnity?
ANSWER: You can demand and you are NOT bound
to pay the indemnity.
QUESTION: Youre given a property pursuant to a
Deed of donation, by the donor and the donated lot is
surrounded by other immovables owned by donor,
can you compel the said donor to give you a right of
way? And, are you bound to pay the donor the
indemnity?
ANSWER: It depends. Qualify since there are 3 types
of donation.
a. Simple donation- PAY/ indemnify (ex:
pure love and affection, gratuitous,
gugmang ga-uros2x!),
b. Onerous- indemnify (not governed by
Title3, book2 of NCC. ex: something
donated, however theres a burden
imposed, I donate to you, but three years

EH405 PROPERTY FINALS NOTES Circa 2013

NOTE: Mere inconvenience alone is NOT allowed:

Bangag, lapok, ngitngit . If you are lawyer, DO NOT
harp on just mere inconvenience (that is the only
one you relied upon); HARP ON THE ISSUE THAT
IT IS NOT ADEQUATE

In Easement, there is no transfer of ownership, no

transfer of possession, but you are required to pay an
indemnity as the dominant owner.
QUESTION: What happens if theres no longer any
need to avail of the easement? Can you get back
money that you paid?
ANSWER: Owner of the servient estate may demand
that the easement be extinguished, returning what he
may have received by way of indemnity
Art. 655. If the right of way granted to a surrounded estate
ceases to be necessary because its owner has joined it to
another abutting on a public road, the owner of the servient
estate may demand that the easement be extinguished,
returning what he may have received by way of indemnity.
The interest on the indemnity shall be deemed to be in
payment of rent for the use of the easement.
The same rule shall be applied in case a new road is opened
giving
access
to
the
isolated
estate.
In both cases, the public highway must substantially meet
the needs of the dominant estate in order that the easement
may be extinguished.
1.
2.

File appropriate case to declare easement as

extinguished
Assuming it will be, return the indemnity
QUESTION: How about the use? Compensation
for the use of the easement?
ANSWER: Interest

Unisource Commercial &Devt Corp vs. Joseph Chung

petitioner filed a Petition to Cancel the Encumbrance

of Voluntary Easement of Right of Way on the ground
that the dominant estate has an adequate access to a
public road which is Matienza Street

HELD: The opening of an adequate outlet to a highway

can extinguish ONLY LEGAL OR COMPULSORY
easements, NOT VOLUNTARY easements like in the
case at bar. A voluntary easement of right of way, like
any other contract, could be extinguished only by
mutual agreement or by renunciation of the owner of
the dominant estate. (Remember the Bogo-Medellin
case)

SECTION 4. - Easement of Party Wall

Art. 658. The easement of party wall shall be governed by
the provisions of this Title, by the local ordinances and
customs insofar as they do not conflict with the same, and
by the rules of co-ownership.
QUESTION: What is the nature? What is the
reason why it is an easement?
ANSWER: It partakes of the nature of coownership (not really co-ownership coz here, you
can already determine state of ownership and
unlike co-ownership, here you can use it
exclusively for your own use).
Art. 659. The existence of an easement of party wall is
presumed, unless there is a title, or exterior sign, or proof to
the contrary:
(1) In dividing walls of adjoining buildings up to the point
of common elevation;
(2) In dividing walls of gardens or yards situated in cities,
towns, or in rural communities;
(3) In fences, walls and live hedges dividing rural lands.
If theres a wall, its NOT automatic na
party wall nana- not necessarily.
(Example of party wall: Dividing walls of adjoining buildings up
to the point of common elevationyou can presume that party
wall exist, but before you apply presumption, make sure that if
its INSIDE the dividing walls because if its inside the boundary
of one estate, its NOT a PARTY wall.( It must be right there sa
boundary jd, dli inside!)

Art. 660. It is understood that there is an exterior sign,

contrary to the easement of party wall:
(1) Whenever in the dividing wall of buildings there is a
window or opening;

EH405 PROPERTY FINALS NOTES Circa 2013

c.

after I donate, you must construct a

building)
Remuneratory- (ex: not actually no
consideration totally, there is a
consideration only that the reason for
giving consideration is NOT a
demandable debt. Like you saved the
life of a person and later on, the person
donated his lot to you)

5
(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;

1.

(3) Whenever the entire wall is built within the boundaries

of one of the estates;

3.

2.

4.

(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;

5.
6.

(NOTE: Sometimes, ang mga tao, magalalis sa wall. Upon

reaching the court, this is how u prove it. ASSERT THAT YOURE
THE OWNER. )

(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;

SECTION 5. EASEMENT OF LIGHT AND VIEW

(7) Whenever lands inclosed by fences or live hedges adjoin

others which are not inclosed.

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

others, open through the party wall any window or
aperture of any kind.

In all these cases, the ownership of the walls, fences or

hedges shall be deemed to belong exclusively to the owner
of the property or tenement which has in its favor the
presumption based on any one of these signs.
QUESTION: Theres a wall right there at the
boundary- but there are windows. Why is it you
cannot infer that theres a party wall if there are
openings?
ANSWER: No basis that it is for the benefit of
both. It is possible that it is built at the expense
of just one person.
Art. 661. Ditches or drains opened between two estates are
also presumed as common to both, if there is no title or sign
showing the contrary.
There is a sign contrary to the part-ownership whenever
the earth or dirt removed to open the ditch or to clean it is
only on one side thereof, in which case the ownership of the
ditch shall belong exclusively to the owner of the land
having this exterior sign in its favor.
Dominga Lao vs Heirs of Alburo

Petitioners filed for registration of a parcel of land,

they are contesting ownership of a stonewall.
HELD: Stone wall is NOT a party wall since it belongs
solely to the applicants/petitioners.

QUESTION: Why?
ANSWER: Because a party wall is supposed to
benefit both. Therefore, no one could exclusively
own a party wall, unless with consent of the other.
(NOTE: Co owners mu sa party wall. Bai, pwede ni magama kog
opening bai humon naq bintana, then the other allows it, you
can do it. In fact, you can even assert later on that you have
acquired light or view reckoned from the time you made an
opening. Because when you make an opening in a party wall, at
the time you make such opening , theres already an
encumbrance. Why? You do not exclusively own the wall.)

Party wall- opening it already imposes an

encumbrance, since you do not solely own it (positive
easement).
Your exclusive, own wall- encumbrance &
prescriptive period will only start if you have served a
prohibition to adjoining tenement i.e. do not build
higher structure!Its NOT from the time you make an
opening, coz you are merely exercising your right of
ownership (negative easement)
Art. 669. When the distances in Article 670 are not
observed, the owner of a wall which is not party wall,
adjoining a tenement or piece of land belonging to another,
can make in it openings to admit light at the height of the
ceiling joints or immediately under the ceiling, and of the
size of thirty centimeters square, and, in every case, with an
iron grating imbedded in the wall and with a wire screen.

EH405 PROPERTY FINALS NOTES Circa 2013

(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;

Enclosing wall is much higher than the adjoining

bldg of the objectors.
Along the top of the wall theres a gutter which
catches the rain water from the eaves of the roof
of the applicants bldg
of the top of said wall is covered by the roof of
the applicants bldg
Supports of said wall project toward the side of
the applicants land
None of the buttresses are on the objectors lot
Stones of the wall are bound/inset in the rear
enclosing wall of the applicants property in such
wise that the two walls that inclose the lot form
but a single construction

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1.
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.

2.

Easement of light- pra nay kahayag, right to

make an opening but opening made is NOT
for purposes of viewing
Easement of light and view- make
projections, to make regulatory windows.

Art. 668. The period of prescription for the acquisition of an

easement of light and view shall be counted:
(1) From the time of the opening of the window, if it is
through a party wall; or

Cortes vs Palanca Yu-tibo

Issuues: WON easement is positive or negative and

when did the prescriptive period started to run?
HELD: The easement of light in the case of windows
opened in ones own wall is negative, and CANNOT be
acquired by prescription EXCEPT where sufficient
time of possession has elapsed after the owner of the
dominant estate, by formal act, has prohibited the
owner of the servient estate from doing something
which would be lawful but for the easement.
Plaintiff is incorrect in saying that prescription starts
when the window was made and acknowledged by
the adjacent owner. Wala ka, you cannot claim
prescription, since you failed to serve notarial
prohibition!
(Easement of Light- right to make an opening but opening made
is NOT for purposes of viewing.)

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

observed, the owner of a wall which is not party wall,
adjoining a tenement or piece of land belonging to another,
can make in it openings to admit light at the height of the
ceiling joints or immediately under the ceiling, and of the
size of thirty centimeters square, and, in every case, with an
iron grating imbedded in the wall and with a wire screen.
Nevertheless, the owner of the tenement or property
adjoining the wall in which the openings are made can
close them should he acquire part-ownership thereof, if
there be no stipulation to the contrary.
He can also obstruct them by constructing a building on his
land or by raising a wall thereon contiguous to that having
such openings, unless an easement of light has been
acquired.
(You want to make a wall right there in the boundary-pwede na but
you cannot make an opening such that it would have the direct view
on anothers estate. Pero wala nagpasabot na bisag gamay you are
not allowed, since Art 669 allows you so.)

To types:

(2) From the time of the formal prohibition upon the

proprietor of the adjoining land or tenement, if the window
is through a wall on the dominant estate.
Easement of light and view- acquired by title and
prescription.
QUESTION: Violation of Art 660, you did not
observe 2 meter setback rule. Notwithstanding
that, you still made openings, Can it be closed?
ANSWER: Yes.
QUESTION: But what if that opening in violation
of Art. 660 was there for 20years, and on the 20th
year, adjacent owner woke up and realized you
violated, so he filed a case to close. Can you
compel closure?
ANSWER: Make a distinction between
acquisition of easement of light and view vs.
action to compel closure.
Just because you can no longer file an action to
compel the closure doesnt mean that you have
already acquired prescription.

Right of action which is an action founded

by law had already prescribed(10 years
prescription.)
He didnt acquire prescription due to
non-observance of easement, and the
remedy is to make a higher structure
and block that opening anytime.

Art. 673. Whenever by any title a right has been acquired to

have direct views, balconies or belvederes overlooking an
adjoining property, the owner of the servient estate cannot
build thereon at less than a distance of three meters to be
measured in the manner provided in Article 671. Any
stipulation permitting distances less than those prescribed
in Article 670 is void.

EH405 PROPERTY FINALS NOTES Circa 2013

7
QUESTION: What is meant by whenever any title
or right has been acquired?

selling their properties. Once these lots are bought, iyahay nana ang
tagiya ug put up, panindotay ug buildings. Mga poor fishermen wala
nay access, cant even find space to park their respective bangkas .

ANSWER: Have presumed that someone already

has easement.

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

look. Coz it cannot be right of way, cannot be drainage, we cannot
also enforce that observance of certain distance (unless you can prove

SECTION 6. - DRAINAGE OF BUILDINGS

Art. 674. The owner of a building shall be obliged to
construct its roof or covering in such manner that the rain
water shall fall on his own land or on a street or public
place, and not on the land of his neighbor, even though the
adjacent land may belong to two or more persons, one of
whom is the owner of the roof. Even if it should fall on his
own land, the owner shall be obliged to collect the water in
such a way as not to cause damage to the adjacent land or
tenement. (586a)
Art. 675. The owner of a tenement or a piece of land, subject
to the easement of receiving water falling from roofs, may
build in such manner as to receive the water upon his own
roof or give it another outlet in accordance with local
ordinances or customs, and in such a way as not to cause
any nuisance or damage whatever to the dominant estate.
(587)
Art. 676. Whenever the yard or court of a house is
surrounded by other houses, and it is not possible to give an
outlet through the house itself to the rain water collected
thereon, the establishment of an easement of drainage can
be demanded, giving an outlet to the water at the point of
the contiguous lands or tenements where its egress may be
easiest, and establishing a conduit for the drainage in such
manner as to cause the least damage to the servient estate,
after payment of the property indemnity

You want a canal no obstruction, your cause of action

is not right of way but easement of drainage or
easement of aqueduct.
[Here is an interesting question, do you remember last time I pointed
out a very common phenomenon in the province where owners of
these lots sell their properties to moneyed individuals, constructing
their respective houses, thus not giving access to fishermen towards
the sea. Dyou see that one? Very common in the place. Everybody is

there are other structures there). Im very sure theres a special law
that governs this situation. Well, just relate this problem to access of
drainage.]

SECTION 7. - INTERMEDIATE DISTANCES

and Works for Certain Constructions and Plantings
Art. 679. No trees shall be planted near a tenement or piece
of land belonging to another except at the distance
authorized by the ordinances or customs of the place, and,
in the absence thereof, at a distance of at least two meters
from the dividing line of the estates if tall trees are planted
and at a distance of at least fifty centimeters if shrubs or
small trees are planted.
Every landowner shall have the right to demand that trees
hereafter planted at a shorter distance from his land or
tenement be uprooted.
The provisions of this article also apply to trees which
have grown spontaneously.
SITUATION: Coconut tree na gibutang sa boundary
(Unta, it should not be put on the boundary)
REMEDY: Demand trees be uprooted. If youre the
one inversely affected, you cannot go intrude the
property and uproot the tree.
[**If you read the articles, oust in general manner. If you want to be
further guided, it is advisable for you to consult and research on
appropriate zoning ordinance- this is a local law which you can find
in the city hall/ municipal hall. When you become lawyers, ayawg
pagsalig sa Civil Code, it is only a general law. Sometimes cases are
won not on the basis of Civil code, but on local ordinances.]

QUESTION: Now, theres a provision here which

occasionally comes out in the bar- governing law
when a branch extends upon anothers property
What right if there is any, does the owner of the estate
have?
ANSWER: right to demand that they be cut off insofar
as they may spread over his property (Art 680).
Art. 680. If the branches of any tree should extend over a
neighboring estate, tenement, garden or yard, the owner of
the latter shall have the right to demand that they be cut off

EH405 PROPERTY FINALS NOTES Circa 2013

QUESTION: What is obligation of the servient

estate if the other already acquired an easement?
ANSWER: YOU STILL CAN build, however, set
back 3 meters. Its the height of injustice if he
cannot construct a bldg since prohibition is not
absolute.

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

yourself, and worse, ang pinutol gihimo ug firewood. If Im
your enemy Ill file you qualified theft. This in-law of
adjacent owner cut the branches, after that, gathered
branches, place it there in his estate. Asawa nako, kay ako
abogado lagi, nagtuo gamhanan ang bana, she was asking
me, so I said, Oh well, file a case for theft. I filed a case, I
was not the one handling, since accused was a former
client of mine, so I asked my partner to handle it. Im the
one taking photos of those cut branches. Lawyer and
Photographer into one.]

Art. 681. Fruits naturally falling upon adjacent land belong

to the owner of said land.
This is an example of mode of acquiring ownership
through a law.

voluntarily constituted by owner of the servient

estate.
QUESTION: What are the things to be remembered?
ANSWER: See Unisource Commercial &Devt Corp vs. Chung.
Extinguishment:
1. mutual agreement or
2. by renunciation by the owner of the dominant
estate.
Three kinds of Easement- Legal, Voluntary and
Mixed (partly by law, partly by agreement).
Villanueva v. Velasco

SECTION 8. EASEMENT AGAINST NUISANCE

[Some authors questioned why nuisance is an easement which is
actually a negative easement because you are prohibited. If you will
examine, preventing another from doing something which he could
have lawfully done. If you maintain a nuisance, it cannot be said that
you are doing something lawful. Nuisance can never be lawful. This
goes again doing something by preventing.]

LATERAL AND SUBJACENT SUPPORT

[Just imagine: What will you feel if youre on the 33rd floor,
and theres the excavation below? Matay, gamay aning
earthquake,nah. Its very dangerous. And the property nearby
will lose its support. Same with a case in digging tunnels.
Remember the case? Okay rata kung lawm, thats why it took
time for owners to know. ]

QUESTION: It happened here, former BBRC, adjacent

na bahay, cave in, ang entire living room tua nas
lalom. So, whats the cause of action?
REEMEDY: Injunction is always the remedy. Never
mind damages.
[Unsaon manang damages kung nana kas ilalom? Or Patay
nka?Kabalo mu unsaon pagwenta ug damages? Actual, receipts.
Prospective lawyer (tag-as mug score sa Property, dako2 kag chance
ma abogado ka. Laws of expected income. Nay formula ana.) Pero
bulakbol ka na estudiante, reflected kapila nafail, he can never be a
lawyer. An injunction- pre-emptory writ, Restrainig order, undang
automatic bsta urgent kaayo ang relief. The only thing that cannot be
restrained is your loose bowel movement . ]

VOLUNTARY EASEMENT

Unknown to Villanueva, even before he bought the

land, there was already a final decision enforcing the
right to easement where a small house encroaching
the same was ordered demolished
Initially there was an agreement. Then there was a
change of ownership (servient dili murespecto),
forcing dominant to confirm existence of voluntary.
Was confirmed by court and upheld by court. Initially
voluntary, you can go to court to have existence
confirmed.
Issue: WON easement on the property binds
petitioner
HELD: Easement in the case at bar is BOTH legal and
voluntary. Even if it was not annotated in the title of
the land and the notice of lis pendens was not
recorded with the RD, in legal easement, the servient
estate is bound to provide the dominant ingress from
and to the public highway. Further, the decision
enforcing the right of easement against previous
owner binds the successor-in-interest.

NUISANCE
Article 694. A nuisance is any act, omission, establishment,
business, condition of property, or anything else which:
(1)Injures or endangers the health or safety of others; or
(2)Annoys or offends the senses; or
(3)Shocks, defies or disregards decency or morality; or
(4)Obstructs or interferes with the free passage of any
public highway or street, or any body of water; or
(5) Hinders or impairs the use of property.

Omission- failure to cut tree which is endanger in

falling. ( You have a liability, that is a nuisance since it
inures and endangers.)
Examples :
1.
Health and safety- meat wala gikuan sa slaughterhouse.
2.
Annoys senses- Maybe poultry house.

EH405 PROPERTY FINALS NOTES Circa 2013

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.

9
3.

4.

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

such a thing as red light district, giving numbers openly. Dinhi,
secreto2x man.)
Obstructs- structures along riverbanks, or basketball court in
the middle of the street. (haya is as well a nuisance-but tolerated
nalang. Even one structure in Argao- house ni extend sa dagat,
all the way to the seawater, that can qualify as nuisance.)

Article 699. The remedies against a public nuisance are:

(1)A prosecution under the Penal Code or any local
ordinance: or
(2)A civil action; or
(3) Abatement, without judicial proceedings.

Classifications
o Public - affects a community or neighborhood
or any considerable number of persons
o Private -

QUESTION: In abatement without judicial

proceedings, (relating it with nuisance per se, usually
done with the mayor). Just issuing an order of closure,
would it be violative?

Article 695. Nuisance is either public or private. A

public nuisance affects a community or neighborhood
or any considerable number of persons, although the
extent of the annoyance, danger or damage upon
individuals may be unequal. A private nuisance is one
that is not included in the foregoing definition.
And as Per se or Accidens.
QUESTION: Whats the reason for the classifying?

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

that it is
1. Public nuisance and
2. Nuisance per se
Moreover, act is justified through the exercise of the
general welfare clause under Section 16 of the
LGC.

ANSWER: To determine remedies and who is entitled

to commence.

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

ordinance: or
o

QUESTION: Action to stop nuisance?

ANSWER: ABATEMENT OF NUISANCE.
Article 701. If a civil action is brought by reason of the
maintenance of a public nuisance, such action shall be
commenced by the city or municipal mayor
QUESTION: A piggery nearby, considering that it is a
public nuisance, and abatement will only be
commenced by mayor. What if mayor will not do
anything? And granted that you filed a case, and the
other party will say dismissed mani in accordance of
Art. 701. So as counsel, what will be your rebuttal?

Per accidens (nuisance in fact) nuisance only due to

or under certain circumstances (poultry house,
piggery which are legitimate business but becomes
nuisance for example- situated in an area which is
residential, or violates zoning ordinance.
QUESTION: Who is liable?

ANSWER: My client is filing this on the strength of

Art.703, that it is specially injurious to himself
(Ikaw na bahala, ex. Asthmatic guru ka).

ANSWER: Even successive owner can be held liable if

it can be shown that he does not take action to
voluntarily abate the nuisance.

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

of a public nuisance, if it is specially injurious to himself.
Per se (nuisance at law)- at all times regardless of
circumstances , nuisance at law
( Bar question- Classify whether nuisance per se and nuisance per
accidens.
1.
Gambling- per se
2.
House of ill-refute- per se
3.
Piggery- per accidens
4.
Poultry house.)- per accidens

-needs proceeding.
Ex:
1. Gambling house -anti-gambling
provision.
2. If you are maintainer of prostitution
house mamasan- trafficking,
3. Prosecution for malicious mischief
(property).

Difference between the remedy

1.
2.

Pe se- summary abatement

Per accidens-always requires judicial order.
(Whats the purpose of filing the case? Of course, for due process. The
fact that it is only nuisance in certain circumstances, so there is a
need or it shall be proven)

Gregoria Francisco v CA

EH405 PROPERTY FINALS NOTES Circa 2013

10

quonset building (semicylindrical) purchased by

Gregoria Francisco,which was ordered demolished by
respondent Municipal Mayor, Valencia
Issue: whether or not Respondent Mayor could
summarily, without judicial process, order the
demolition of petitioner's quonset building.
HELD: Respondent Mayor was NOT VESTED with
power to order summarily, and without any judicial
proceeding, the demolition of the quonset building,
which was not a nuisance per se and that petitioner
is in legal possession of the land on which the building
stands by virtue of the permit issued by the Philippine
Ports Authority.

Doctrine of Attractive Nuisance

Class: Sa mga bata sir..
QUESTION: Unsa mga bata? Klaroha! Mga Bata?
Nuisance diay nang mga bata??!
ANSWER: Dangerous instrumentality which
attracts children of tender years. You are a
maintainer of a dangerous instrumentality which
would attract children, and if the child or parents will
suffer or incur damages, then you are liable. Not a
nuisance per definition, but it is an attractive
nuisance.

Parayno vs Jovellanos
Petitioner was the owner of a gasoline filling station
and some residents petitioned the Sangguniang Bayan
for the closure or transfer of the station to another
location for the alleged hazardous effects of the gasoline
station to the lives and properties of the people

The Sangguniang Bayan recommended to the Mayor

the closure or transfer of location of petitioner's
gasoline station.
Resolution No. 50 was created, it declared- existing
gasoline station is a blatant violation and disregard of
existing law namely the Official Zoning Code
Issue: WON the closure/transfer of her gasoline filling
station by respondent municipality was an invalid
exercise of the latter's police powers
HELD: Respondent municipality invalidly used its
police powers in ordering the closure/transfer of
petitioner's gasoline station. The abatement of a
nuisance without judicial proceedings is possible only
if it is a nuisance per se. A gas station is NOT a
nuisance per se or one affecting the immediate safety
of persons and property. Hence, it cannot be closed
down or transferred summarily to another location.

QUESTION: What is NOT an attractive Nuisance?

ANSWER: See Hidalgo Enterprises vs Balandan
Hidalgo Enterprises vs Balandan

Inc. is absolved from liability.

Nature has created streams, lakes and pools which

attract children. Lurking in their waters is always the
danger of drowning. Against this danger children are
early instructed so that they are sufficiently presumed
to know the danger; and if the owner of private
property creates an artificial pool on his own property,
merely duplicating the work of nature without adding
any new danger

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

water inherent ni. Unsa man, i-sue nimo ang Ginoo kay na ni sila? For
as long as you are not introducing additional danger

Lucena Grand Central vs JAC Liner

HELD: The power then of the Sangguniang

Panlungsod to prohibit encroachments and obstacles
does not extend to terminals. Neither are terminals
public nuisances as petitioner argues for their
operation is a legitimate business which, by itself,
cannot be said to be injurious to the rights of
property, health, or comfort of the community.
But even assuming that terminals are nuisances due
to their alleged indirect effects upon the flow of traffic,
at most they are nuisance per accidens, not per se.
Unless a thing is nuisance per se, however, it may not
be abated via an ordinance, without judicial
proceedings, as was done in the case at bar.

petitioner Hidalgo Enterprises, Inc. owner of an iceplant factory in whose premises were installed two
tanks full of water, nine feet deep, for cooling
purposes of its engine.
boy barely 8 years old, while playing with other boys
of his age entered the factory premises through the
gate, to take a bath in one of said tanks and while thus
bathing, Mario sank to the bottom of the tank, only to
be fished out later, already a cadaver
Action filed: Grounded on damages on maintenance of
attractive nuisance.
Issues: Now, is a swimming pool or water tank an
attractive nuisance? Is the petitioner liable?
HELD: NO. Swimming pool or pond or reservoir of
water or the ice tank in the case at bar is not
considered an attractive nuisance. Hidalgo Enterprises,

QUESTION: What is an attractive Nuisance?

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

EH405 PROPERTY FINALS NOTES Circa 2013