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PROPERTY

The right of using a thing indefinitely is an essential quality of absolute property, without which
absolute property can have no legal existence. Use is the real side of property. This right of
user necessarily includes the right and power of excluding others from the land.

Property is lost by the act of man by:


o
Alienation;
o
Voluntary abandonment of the thing.

It is lost by operation of law by:


o
Forced sale;
o
Confiscation or sentence of a criminal court;
o
Prescription;
o
Civil death;
o
Capture by a public enemy.

It is lost by the act of God by:


o
Death of animals;
o
Total destruction of a thing.

Lecture notes by Atty. Robles


PROPERTY

The right and interest which a man has in lands and chattels to the exclusion of others;

The sole and despotic dominion which one man claims and exercises over the external things
of the world in total exclusion of the right of any other individual in the universe; the right to
possess, use, enjoy, and dispose of a thing; the free use and enjoyment by a person of all his
acquisitions, without any control or diminution, save only by the law of the land.

A vested right of action is property in the same sense that tangible things are property; it is a
thing owned, that to which a person has or may have a legal title.

It embraces every species of valuable right and interest, including real and personal property,
easements, franchises, and hereditaments; it includes money, credits, a chose in action, a
mining claim, a debt;

In the strict legal sense, it is an aggregate of rights which are guaranteed and protected by the
government, and, in the ordinary sense, indicates the thing itself, rather than the rights attached
to it.

All things are not the subject of property; the sea, the air, and the like cannot be
appropriated; every one may enjoy them, but he has no exclusive right in them. When things
are fully our own, or when all others are excluded from meddling with them or from interfering
about them, it is plain that no person besides the proprietor, who has this exclusive right, can
have any claim either to use them, or to hinder him from disposing of them as he pleases: so
that property, considered as an exclusive right to things, contains not only a right to use those
things, but a right to dispose them, either by exchanging them for other things, or by giving
them away to any other person without any consideration, or even throwing them away.

The ownership of property implies its use in the prosecutions of any legitimate business which
is not a nuisance in itself.

Property is said to be, when it relates to goods and chattels, absolute or qualified. Absolute
property is that which is our own without any qualification whatever. Qualified property
consists in the right which men have over wild animals which they have reduced to their own
possession and which are kept subject to their power, which are his own while he has
possession of them, but as soon as his possession is list his property is gone, unless the
animals go animo revertendi.

Property in personal goods may be absolute or qualified without any relation to the nature of the
subject-matter, but simply because more persons than one have interest in it, or because the
right of property is separated from the possession. A bailee of goods, though not the owner,
has a qualified property in them; while the owner has the absolute property.
Property is again divided into corporeal and incorporeal; the former comprehends such
property as is perceptible to the senses, as lands, houses, goods, merchandise, and the like;
the latter consists in legal rights, as choses in actions, easements, and the like.

IMMOVABLES

Property which, from its nature, destination, or the object to which it is applied, cannot move
itself, or be removed.
MOVABLES

Such subjects of property as attend a mans person wherever he goes, in contradiction to


things immovable;

Things movable by their nature are such as may be carried from one place to another, whether
they move themselves, as cattle, or cannot be removed without an extraneous power, as
inanimate things.

DOMINION

Perfect and complete property or ownership in a thing. This right is composed of three principal
elements:
o
The right to use;
o
The right to enjoy; and,
o
The right to dispose of the thing, to the exclusion of every other person.

He who has the enjoyment of a thing is entitled to receive all the profits or revenues which
may be derived from it.

TREASURE

A thing hidden or buried in the earth which no one can prove as his property, and which is
discovered by chance.
TREASURE TROVE

This name is given to such money or coin, gold, silver, plate, or bullion, which, having been
hidden or concealed in the earth, or other private place, so long that its owner is unknown, has
been discovered by accident. Should the owner be found, it must be restored to him; and in
case of not finding him, the property belongs to the King [under English law]. By the civil law,
when the treasure was found by the owner of the soil he was considered as entitled to it by the
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double title of owner and finder; when found on anothers property, one-half belonged to the
owner of the estate and the other to the finder; when found on public property, it belonged onehalf to the public treasury and the other to the finder.

If the owner is known, it is not technically treasure trove.

In the Roman law valuables hid in the earth for safety were not treasure trove, unless hid so
long that the owner was not known.

APPURTENANCES

Things belonging to another thing as principal, and which pass as incident to the principal thing.

To constitute an appurtenance there must exist a propriety of relation between the principal
or dominant subject and the accessory or adjunct, which is to be ascertained by
considering whether they so agree in nature or quality as to be capable of union without
incongruity.
If a house and land be conveyed, everything passes which is necessary to the full enjoyment
thereof and which is in use as incident or appurtenant thereto. Under this term are included the
curtilage, a right of way, water-courses, and secondary easements, a turbary and generally
anything necessary to the enjoyment of a thing.

Appurtenance of a ship include whatever is on board a ship for the objects of the voyage and
adventure in which she is engaged, belonging to her owner.

The thing appurtenant must be of inferior nature to the thing to which is appurtenant.

ACCESSORY

Any thing which is joined to another thing as an ornament, or to render it more perfect.
OWNERSHIP

The right by which a thing belongs to some one in particular, to the exclusion of all others

The entirety of the powers of use and disposal allowed by law; it implies that there is some
power of disposal; but the owner of a thing is not necessarily the person who at a given time
has the whole power of use and disposal; it is broader than possession.

OWNER

He who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a
right to enjoy and do with as he pleases, -- even to spoil or destroy it, as far as the law permits,
unless he be prevented by some agreement or covenant which restrains his right.

Although there can be but one absolute owner of a thing, there may be a qualified
ownership of the same thing by many; thus a bailor has the general ownership of the thing
bailed, the bailee the special ownership; the right of the absolute owner is more extended than
that of him who has only a qualified ownership: as, for example, the use of the thing. Thus, the
absolute owner of an estate, that is, an owner in fee, may cut the wood, demolish the buildings,
build new ones, and dig wherever he may deem proper for minerals, stone, plaster, and similar
things, which would be considered waste and would not be allowed in a qualified owner of the
estate, as a lessee or tenant.

The owner continues to have the same right although he performs no acts of ownership or be
disabled from performing them, and although another person performs such acts without the
knowledge or against the will of the owner. But the owner may lose his right in a thing if he
permits it to remain in the possession of a third person for a sufficient time to enable the latter
to acquire a title to it by prescription or under the statute of limitations.

TRADITIONAL RIGHTS IN OWNERSHIP


(1) The right to use;
(2) The right to enjoy;
(3) The right to dispose;
(4) The right to abuse;
(5) The right to recover;
(6) The right to possess.
LIMITATIONS ON OWNERSHIP
(1) Fixed by the Constitution
(2) Fixed by statutes
(3) Fixed by voluntary acts (contracts and wills)
RIGHTS INCIDENT TO OWNERSHIP
(1) The right to enjoy and dispose of a thing without other limitations that those established by
law;
(2) The right to file an action against the holder or possessor of a thing in order to recover it;
(3) The right to exclude any person from the enjoyment and disposal of the thing lawfully
owned or possessed and for this purpose, to use such force as may be reasonably
necessary to repel or prevent an actual or threatened unlawful physical invasion or
usurpation of his propety.
(4) The right to enclose or fence the land or tenements by walls, ditches, live or dead hedges,
or by means without detriment to servitudes constructed thereon;
(5) The right to demand indemnity for the damage caused by reason of interference with the
owners property to avert an imminent greater danger;
(6) The right to compensation in case the owners property is taken by competent authority
and for public use;
(7) The right to be restored to possession of ones property in case the same is takem not by
competent public authority and/or without just compensation and/or not for public use;
(8) The right to compensation if ones property is condemned or seized by a competent
authority unjustifiably as when it is so condemned or seized not In the interest of health,
safety, or security;
(9) The right to the surface and sub-surface of the land as well as the right to construct
thereon any work or make any plantations and excavations which the owner may deem
proper without detriment to servitudes and subject to special laws and ordinances and
without right to complain of the reasonable requirements of aerial navigation;
(10) The right to hidden treasure;
(11) The right to accession and fruits of the property; and
(12) The right to quiet the title to real property or any interest therein.
KINDS OF ACTION FOR RECOVERY OF PROPERTY
(1) Action to EJECT, which is an action to recover possession within one year from the time
the action accrues;
(2) ACCION PUBLICIANA, which is an action to recover possession after one year has
elapsed from the accrual of the right but before ten years therefrom;
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(3)
(4)

ACCESSION

The right to all which ones own property produces, whether that property be movable or
immovable, and the right to that which is united to it by accessory, either naturally or artificially.

Every building is an accession to the ground upon which it stands.

If the materials of one person are united by labor to the materials of another, so as to form a
single article, the property in the joint product is, in the absence of any agreement, in the owner
of the principal part of the materials by accession.

The tree belongs to the owner of the land on which the root is, and its fruits is to the owner of
the tree, although limbs overhang a neighbors land.

Where, by agreement, an article is manufactured for another, the property in the article, while
making and when finished, vests in him who finished the whole or the principal part of the
materials; and the maker, if he did not furnish the same, has simply, a lien upon the article for
his pay.

The increase of an animal, as a general thing, belongs to the owner of the dam or mother; but,
if it be let to another, the person who thus becomes the temporary proprietor will be entitled to
its increase.

If, by the labor of one man, the property of another has been converted into a thing of different
species, so that its identity is destroyed, the original owner can only recover the value of the
property in its unconverted state, and the article itself will belong to the person who wrought the
conversion, if he wrought it believing the material to be his own.

But, if there be a mere change of form or value, which does not destroy the identity of the
materials, the original owner may still reclaim them or recover their value as thus improved; so,
if the change have been wrought by a willful trespasser, or by one who knew that the materials
were not his own; in such case, however, radical the change may have been, the owner may
reclaim them, or recover their value in their new shape.

ACCRETION

The increase of real estate by the addition of portions of soil, by gradual deposition
through the operation of natural causes to that already in possession of the owner. [The term
alluvion is applied to the deposit itself, while accretion rather denotes the act.]

By construction, as by building on anothers land;


By writing, as when one writes on anothers parchment; or
By painting, as when one paints a picture on anothers canvas.

In these cases, as a general rule, the accessory follows the principal; hence, those things
which are attached to the things of another become the property of the latter. The only
exception which the civilians made was in the case of a picture, which, although an accession,
drew to itself the canvas, on account of the importance which was attached to it.

AVULSION

The removal of a considerable quantity of soil from the land of one man and its deposit
upon or annexation to the land of another, suddenly and by the perceptible actions of water. [In
such case the property belongs to the first owner.]
ALLUVION

That increase of the earth on a bank of a river, or on the shore of the sea, by the force of
the water, as by a current or by waves, or from its recession in a navigable lake, which is so
gradual that no one can judge how much is added at each moment of time.

Where land is submerged by the gradual advance of the sea, the sovereign acquires the title to
the part thereby covered and it ceases to belong to the former owner.

The proprietor of the bank increased by alluvion is entitled to the addition, this being regarded
as the equivalent for the loss he may sustain from the encroachment of the waters upon his
land. [just compensation]
KINDS OF ACCESSION
(1) Accession discreta

Refers to natural fruits, industrial fruits as well as civil fruits


(2) Accession continua

May affect immovable property in which case it may either be accession industrial or
accession natural, or it may affect movable property in which case it may take place
either by adjunction or conjunction, commixtion or confusion, or specifications.
a)
b)

Accession industrial
o
Building, planting, or sowing
Accession natural
o
Alluvion;
o
Avulsion;
o
Change of river course; and,
o
Island formation

While accession discreta refers to a persons right (as owner) over the fruits produced by his
property, this rule is not absolute. There are certain cases where the fruits of the property will
not belong to the owner. Thus, a possessor of a property in good faith may claim the fruits of
such property [Article 544]. A usufructuary is entitled to the fruits of the property held in usufruct
[Article 566]. So also, in antichresis, the creditors may, in the proper case, appropriate the fruits
of the security.

Accession continua is a form of accession where the property of one person is incorporated in
that of another. The basic principles or characteristics that underlie accession continua
are the following:
(1) Accessory follows the principal.

It is generally conceded that the riparian title attaches to subsequent accretions to the land
effected by the gradual and imperceptible operation of natural causes.

ADJUNCTION

The attachment or union permanently of a thing belonging to one person to that


belonging to another. This union may be caused:
o
By inclusion, as if one mans diamond be set in anothers ring;
o
By soldering, as if ones guard be soldered on anothers sword;
o
By sewing, as by employing the silk of one to make the coat of another;

o
o
o

ACCION REIVINDICATORIA, which is an action to recover ownership and possession of


land within 30 years from the time the action accrues; and,
REPLEVIN, which is an action to recover personal property possessed by another.

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(2)
(3)
(4)

The nature of the incorporation is in such a way that separation would injure or
destroy either or both of the properties incorporated.
No punitive liability shall be suffered by the person who acts in good faith.
The person who acts in bad faith is punished by, among others, requiring him to pay
damages.

Article 448 is not applicable in the following instances:


(1) In cases of co-ownership
(2) In cases of usufruct
(3) In cases of lease already and/or previously agreed upon
(4) In case a person who owns a house and lot sells only the lot but not the house
(5) In relations between private persons and sovereign belligerent
(6) Construction made exclusively for prosecuting a war
(7) When the parties concerned agree on terms and conditions not contemplated by the
article.

In case, in the meantime, the owner of the land who is also in good faith, has not paid the
proper indemnity, the builder, sower or planted in good faith shall have the right to stay in the
property without paying rentals and also the right to have the value of which is built, planted or
sown annotated on the titles of the land to protect his right in case the land is sold to a third
person in good faith and for value.

If the landowner properly chooses to ask for the payment of the price of the land and the
builder, planter or sower cannot pay the same, the landowner may either oblige the builder or
planter to remove the improvements at his expense or he may petition the court to have the
property sold at public auctions and if the proceeds are not enough to cover the value of the
improvements, there shall be no reimbursement. But the landowner does not automatically
become the owner of the improvement if the builder fails to pay the value of the land.

A builder in good faith cannot be compelled to pay rental on the land he does not own and on
which his building was constructed. He has the right to retain the land on which he has
constructed the building in good faith until he is reimbursed the expenses incurred by him.

The owner acquires ownership over an accretion received by his land from the effects of the
waters by virtue of the fact of addition and he need not file any action to possess each addition.

Lands added to the shores by accretion and alluvial deposits are owned by the State. The said
lands, until a formal declaration on the part of the Government to the effect that they are no
longer needed for coast service, for public use or for special industries, continue to be part of
public domain, not available for private appropriations or ownership.

Accretion takes place even if the adjoining land is not titled under the Torrens system.

If a river completely dries up, there is no accretion within the meaning of the law.

Land acquired by accretion will not become automatically registered under the Torrens system
if such accretion took place on a registered land.

Alluvion involves a gradual deposit of soil while avulsion refers to a sudden deposit. The soil in
alluvion cannot be identified while that in avulsion is identifiable. The owner of the land in

alluvion owns the accretion while the owner of the land from which a part is detached by
avulsion retains the ownership of such part.

Adjunction or conjunction pertains to a situation where two things belonging to different owners
form a single object so that to separate them would result in their impairment.

Each of the things that from the new object preserves its own nature and there is a relation
between and/or among the things united so as to form a new object.
Commixtion or confusion refers to the mixture of things, either solid or liquid, pertaining to
different owners.

Specification is the transformations of the material of another person into a new form.

There is only one thing (the form of which is changed) in specification while there must be more
than one thing in commixtion and in adjunction. In commixtion, the mixture may be such that the
things mixed may not retain their original nature while in both specification and adjunction, the
things united and the new object, as the case may be, retain and preserve their nature. In both
adjunction and specification, the principles that the accessory follows the principal is applicable
while such principle does not apply to commixtion because here, the mixture shall be
proportionately divided.

SUMMARY: ACCESSION CONTINUA DISTINGUISHED


ADJUNCTION
MIXTURE
SPECIFICATION
Involves at least 2 things
Involves at least 2 things
May involve only 1 thing (may
be more) but form is changed
As a rule, accessory follows As a rule, co-ownership results
As a rule, accessory follows the
the principal
principal
The things joined retain their The things mixed or confused The new object retains or
nature
may either retain or lose preserves the nature of the
respective natures
original object
QUIETING OF TITLE

Under the Rules of Court, any person interested under a deed, will, contract, or other written
instrument, may, before breach or violation thereof, bring an action to determining any question
of construction or validity arising under the instrument and for a declaration of his rights or
duties thereunder.

An action to quiet title of real property not in possession of another does not prescribe. If the
real property is in possession of another, it may be acquired by acquisitive prescription.

In an action to quiet title, the plaintiff asserts his own estate and declares generally that
defendant claims some estate in the land, without defining it, and avers that the claim is without
foundations, and calls the defendant to set forth the nature of his claim, so that it may be
determined by decree; while in a suit to remove a cloud, plaintiff not only declares his own title,
but also avers the source and nature of defendants claim, points out its defect, and prays that it
be declared void.

The remedy of the quieting of, or the removing of cloud from title is generally understood to
have relations only to real property.

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A cloud on title is an outstanding instrument record, claim, encumbrance or proceeding which


is actually invalid or inoperative but which may nevertheless impair or affect injuriously the title
of property. The matter complained of must have a prima facie appearance of validity or legal
efficacy. The cloud on title is a semblance of title which appears in some legal form but which is
in fact unfounded. The invalidity or inoperativeness of the instrument is not apparent on the face
of such instrument and it has to be proved by extrinsic evidence.
As a general rule, a cloud which may be removed by suit to quiet title is not created by mere
verbal or parol assertions of ownership of or an interest in property.

In the event of a division or partition of property owned in common, assignees of one or more of
the co-owners may take part in the division of the thing owned in common and object to its
being effected without their concurrence.

In a contract of sale of co-owned property, what the vendee obtains by virtue of such a sale are
the same rights as the vendor had as co-owner, and the vendee merely steps into the shoes of
the vendor as co-owner.

A co-owner cannot give valid consent to another to build a house on the co-owner property,
which is an act tantamount to devoting the property to his or her exclusive use.
Giving consent to a third person to construct a house on the co-owned property will injure the
interest of the co-ownership and prevent other co-owners from using the property in accordance
with their rights.

In the Philippines, we follow the rule prevailing in many jurisdictions that one who has only an
equitable title to property may maintain an action to quiet title or remove a cloud thereon. It is
also allowed to one out of possession to maintain an action against a defendant in possession.

In a suit to quiet title, defendant may set up equitable as well as legal defenses. The acquisition
by the defendant of the title to the property by adverse possession is a good defense of the
action. A prior adjudication of the questions may constitute a good defense, under the rule of
res judicata. However, when the property is in possession of the plaintiff, action to quiet title
thereto is imprescriptible.

Even if a co-owner sells the whole property as his, the sale will affect only his or her own share
but not those of the other co-owners who did not consent to the sale. A sale of the entire
property by one co-owner without the consent of the other co-owners is not null and void; buyer
is made a co-owner of the property.

The right to seek partition is imprescriptible and cannot be barred by laches. The only exception
to the imprescriptibility of an action for partition against a co-owner is when a co-owner
repudiates the co-ownership.

An action for partition is at once an action for declaration of co-ownership and for segregation
and conveyance of a determinate portion of the properties.

As a matter of law, acquisitive prescription does not apply nor set in against compulsory heirs
insofar as their pro-indiviso share or legitime is concerned, unless said heirs repudiate their
share.

CO-OWNERSHIP

There is co-ownership whenever the ownership of an undivided thing or right belongs to


different persons;

Pursuant to Article 494 of the Civil Code, no co-owner is obliged to remain in the co-ownership,
and his proper remedy is an action for partition under Rule 69 of the Rules of Court.

Anyone of the co-owners may bring an action for ejectment without joining the others.

Co-ownership only arises when there is clear proof of showing the acquisition of the property
during the cohabitation of the parties, and the actual joint contributions of the parties to acquire
the same.

Acquisitive prescription may still set in favor of a co-owner where there exists a clear
repudiation of the co-ownership, and he co-owners are apprised of the claim of adverse and
exclusive ownership.

One of the co-owners may bring actions for the recovery of co-owned property without the
necessity of joining all the other co-owners as co-plaintiffs because the suit is presumed to
have been filed for the benefit of his co-owners.

The characteristics of co-ownership are:


(1) Plurality of subjects, who are the co-owners;
(2) Unity of or material indivision, which means that there is a single object which is
not materially divided, and which is the element which binds the subjects; and
(3) The recognition of ideal shares, which determines the rights and obligations of the
co-owners.

Article 487 of the Civil Code covers all kinds of actions for the recovery of possession, including
an accion publiciana and a reivindicatory action; any judgment of the court in favor of the
plaintiff will benefit the other co-owners, but if the judgment is adverse, the same cannot
prejudice the rights of the unimpleaded co-owners.

The co-owners, being owners of their respective aliquots or undivided shares in the subject
property, can validly and legally dispose of their shares even without the consent of all the other
co-owners.

There is no co-ownership when the different portions owned by different people are already
concretely determined and separately identifiable even if not yet technically described.

During the existence of the co-ownership, no individual can claim title to any definite portion of
the community property until the partition thereof, and, prior to the partition, all that the coowner has is an ideal or abstract quota or proportionate share in the entire thing.

Any co-owner may file an action under Article 487 not only against a third person but also
against another co-owner who takes exclusive possession and asserts exclusive ownership of
the property.

Redemption by a co-owner does not terminate the co-ownership nor give her title to the entire
land subject of the co-ownership.

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An oral partition by the heirs is valid if no creditors are affected.

It is a fundamental principle that a co-owner cannot acquire by prescription the share of the
other co-owners, absent any clear repudiation of the co-ownership.
The requisites in order that the title may prescribe in favor of a co-owner are:
(1) The co-owner has performed unequivocal acts of repudiation amounting to an
ouster of the other co-owners;
(2) Such positive acts of repudiation have been made known to the other co-owners;
and
(3) The evidence thereof is clear and convincing.
By the provision of Article 1082 of the Civil Code, it appears that when a co-owners sells his
inchoate right in the co-ownership, he expresses his intention to put an end to indivision among
his co-heirs.

Since the lot and its improvements were mortgaged by the deceased parents, a co-ownership
existed among the heirs during the period given by law to redeem the foreclosed property.
Redemption by one would inure to the benefit of all.

When a co-ownership is terminated by the partition and the house of defendants overlaps a
portion of the land of plaintiff, which defendants built in good faith, Article 448 applies.
The appropriate recourse of the co-owners who did not consent to the sale of the entire
property and the sale of the undivided shares of some of the co-owners is partition.

Where a surviving spouse sold his undivided portion of the conjugal property to the wife of one
of his sons, the vendors other children are entitles to exercise the right of redemption as coowners of the portion sold. The daughter-in-law is deemed a stranger or third person under
Article 1620.

Co-owner is entitled to a written notice from selling co-owner in order to remove all uncertainties
about the sale, its terms and conditions, as well as its efficacy and status.

Benefits derived from property owned in common are divided in proportion to co-owners
interests.

Possession of a co-owner is like that of a trustee and shall not be regarded as adverse to the
other co-owners but in fact as beneficial to all of them.

The liability of the owners of undivided shares in an hacienda is not several. For a contractual
obligation to assume that character, the obligors must expressly so assume; otherwise, the
obligation must be deemed joint, that is, in proportion to their shares in the hacienda.

The exercise of a right of legal redemption under Article 1620 presupposes the existence of a
co-ownership at the time the conveyance is made by a co-owner and when it is demanded by
the co-owner or co-owners.

Shares of co-owners are equal in the absence of stipulation.

Generally, co-heir cannot acquire community property by prescription.

A third person, within the meaning of Article 1620 (on the right of legal redemption of a coowner) is anyone who is not a co-owner.

Possession held by a co-owner is generally not adverse against his co-owners.

Redemption by a co-owner inures to the benefit of all the other co-owners.

All co-owners must be joined in a partition suit.

When co-owned estate is patrimonial, it is the co-owner whose portion is encroached upon who
has the option to sell that portion or buy the improvement.

Co-owner may redeem community property sold under pacto de retro by another co-owner.

The issuance of new title constituted an open and clear repudiation of the trust or co-ownership
and the lapse of 10 years of adverse possession was sufficient to vest title by prescription.

The rule is that co-owners are not privies inter se in relation to the property owned in common
[Since tenants in common are not privies, it is clear that a judgment rendered in a suit affecting
the common property, brought by only one of the co-owners is not binding upon his associates
nor can it be invoked by them.]

Imprescriptibility of an action for partition cannot be invoked when a co-owner possessed the
property as exclusive owner.

Once the property is subdivided and distributed among the co-owners, the community has
terminated and there is no reason to sustain any right of legal redemption.

One cannot be compelled to remain as co-owner.

Payment of land taxes does not constitute repudiation of co-ownership.

A co-owner has no pre-emptive right to purchase the pro-indiviso shares of his co-owners.

A co-owners right to redeem may be invoked only after the shares of the other co-owners are
sold to a third party or a stranger to the co-ownership.

Co-ownership was extinguished when the heirs allowed the one-year redemption period to
expire without redeeming their parents former property and permitted the consolidation of
ownership and the issuance of new title.

CHARACTERISTICS OF CO-OWNERSHIP
(1) The co-owners share in the property, although definite in amount or size, is not physically
and actually identified, it being merely an ideal;
(2) A co-owners share is absolutely owned by him and he may dispose of it as he pleases;
and
(3) In regard to the use, enjoyment and preservation of the property, the co-owners observe
mutual respect.

Jillian Gandingco | 6


ORDINARY PARTNERSHIP DISTINGUISHED FROM CO-OWNERSHIP:
(1) Co-ownership is created not only by agreement of the parties but also by law and other
means while partnership is created by agreement of the parties;
(2) The purpose of partnership is primarily for profit while the purpose of co-ownership is
principally common enjoyment of the property named in common;
(3) A co-owner may ordinarily sell to a third person his interest in the co-ownership without the
consent of the other co-owners while a partner may not sell his interest in the partnership
without the consent of his co-partners;
(4) Co-ownership is not a juridical person while a partnership has its own juridical personality;
(5) Death of a co-owner does not dissolve the co-ownership while the death of a partner
dissolves the partnership.
REQUISITES OF CO-OWNERSHIP
(1) Plurality of subjects
(2) Unity of object (absence of division)
(3) Proportionate shares of such subjects

owners is required. Even if the lease is for less than one year, if it is recorded in the Registry of
Deeds, consent of all co-owners must be secured.
The following are examples of cases where property owned in common cannot be validly
partitioned:

In conjugal partnership (as long as it validly exists);

And in the case of party wall.


POSSESSION

Elements of possession:
(1) The thing or corpus
(2) An intention to possess the property or animus possidendi

[U.S. v Tan Tyco, 13 Phils. 939; the placing of a stolen thing in ones
property without his knowledge or consent was held as excluding animus
possidendi]

Forms of possession:
(1) Possession based on absolute ownership or valid title
(2) Possession based on just title like possession of one who acts in good faith
(3) Possession not in the concept of owner but based on a juridical title as possession of
a lessee
(4) Possession without any right like possession of a property stolen by a thief

Acquisition in good faith refers to the possession in the concept of owner and not that of a
lessee.

How possession acquired:


(1) By the material occupation of a thing
(2) By the exercise of a right
(3) By the fact that it is subject to the action of own will
(4) By proper acts and legal formalities for acquiring property

Possession is characterized by a relation, that is, a relation of power or control, more or less
effective, by a person over a thing without resolving the question of ownership.
If the owner uses force to obtain possession of property; the owners possession will not be
legally recognized.

HOW CO-OWNERSHIP CREATED

By contracts

By law (as in conjugal partnership)

By will

By chance as in confusion or commixtion


KINDS OF CO-OWNERSHIP

ORDINARY (where right of partition exists) or COMPULSORY (where no such right exists as in
party wall);

LEGAL (created by law) or CONTRACTUAL (created by contract);

UNIVERSAL (over universal things as among co-heirs in inheritance) or SINGULAR or


PARTICULAR (over a particular or specific thing).

It may also be INCIDENTAL, if it exists independently of the will of the parties.


JOINT TENANCY AND CO-OWNERSHIP DISTINGUISHED:

Disability (like minority) in joint tenancy inures to the benefit of the others which is not true in coownership.

In case of death of a joint tenant, the survivor is subrogated the rights of the decedent which is
not true in co-ownership where the death of a co-owner transfers his share to his heirs.

A joint tenant may transfer or dispose of his share only with the consent of the others, but no
such consent is required in co-ownership.
The law does not specify the nature of consent to alterations in a property owned in common. It may
be made expressly or impliedly.

A lessee, an employee, a pledgee, an antichretic creditor, a trustee and co-owner cannot claim
title by acquisitive prescription because they possess the property not in the concept of owner.

Tax declarations and land tax payments are good indicia of possession in the concept of owner.
But such declarations and payments are not enough to prove valid title; they only show intent to
possess the property in the concept of owner.

Possession always includes the idea of occupation.

The general rule is that the possession and cultivation of a portion of a tract under claim of
ownership of all is a constructive possession of all, if the remainder is not in the adverse
possession of another.

The rights of possession may be exercised through agents.

If a co-owner makes an unauthorized alteration, the other co-owners may demand that the alteration
be removed at the expense of the guilty co-owner.
A co-owners share may be attached or levied upon in execution.
A co-owner may leave the property owned in common by securing the resolution of the majority
interest in the co-ownership, as long as the lease is not more than one year and it is not recorded. A
lease of more than one year is no longer an act of administration and therefore, consent of all co-

Jillian Gandingco | 7

Necessary expenses are reimbursed to all, whatever may be the juridical character of the
person who advanced them; in case of a good faith possessor, entitled to retention.

Useful expenses are refunded only to good faith possessor, with right of retention.

With respect to expenses for luxury or pleasure, good faith and bad faith possessors have the
same right ... that is, to remove the improvements upon which they were made if the principal
thing will suffer no injury and the owner does not prefer to retain them upon payment of the
proper indemnity.

A possessor in bad faith has no right to receive any fruits; those already gathered and existing
will have to be returned; with respect to those lost, consumed, or which could have been
received, he must pay the value; the ungathered fruits will go to the lawful possessor or owner.

A possessor in good faith is one who is unaware that there exists a flaw which invalidates his
acquisition of the thing; good faith consists in the possessors belief that the person from whom
he received a thing was the owner of the same and could convey his title.

The possessor in bad faith is liable only for the fruits corresponding to his period of possession;
he cannot be held liable for the fruits received by those who preceded him.

One in possession of property knowing that his title thereto is defective, is a possessor in bad
faith.

Possession in good faith ceases from the moment defects in the title are made known to the
possessor, by extraneous evidence or by suit for recovery of the property by the true owner.

If the owner or lawful possessor chooses to retain the subject for which expenses for luxury and
pleasure were spent, the possessor in bad faith cannot remove the object but is entitled to the
payment of its value at the time the owner/lawful possessor enters into possession; in the case
of the good faith possessor, he is entitled to the expenses incurred for the improvement for
luxury or pleasure.

There are more things which can be the object of possession that those which can be the
object of prescription; not all things susceptible of appropriation can be the object of
prescription.

The only cases of constructive delivery which involve material occupation are the tradicion
brevi manu and the constitutum possessorium.

Abandonment of the thing is the opposite of occupation. It consists of the voluntary renunciation
of all the rights which a person may have in a thing, with the intent to lose such thing. By virtue
of the abandonment, the thing is left without owner or possessor. To be effective, it is
necessary that it be made by a possessor in the concept of owner. Furthermore, it must clearly
appear that the spes recuperandi is gone and the animus revertendi is finally given up.

Possession must be public in order to be the basis for prescription.

Bad faith is personal and intransmissible. Its effects must, therefore, be suffered only by the
person who acted in bad faith.

The possession of personal property acquired in good faith is equivalent to title.


o
Requisites:
a) Possession is in good faith;
b) The owner has voluntarily parted with the possession of the thing; and
c) Possession is in the concept of owner.

In an action of forcible entry and detainer, the court may grant preliminary injunction to prevent
the defendant from committing further acts of dispossession against the plaintiff.

To consolidate title by prescription the possession must be under claim of ownership, and it
must be peaceful, public and uninterrupted.

Acts of a possessory character done by virtue of a license or mere tolerance on the part of the
real owner are not sufficient.

If the owner has lost the thing, or he has been unlawfully deprived of it, he has a right to recover
it, not only from the finder, thief or robber, but also from third persons who may have acquired it
in good faith from such finder, thief or robber. The general rule of irreivindicability has two
exceptions: when the owner has lost the thing, or has been unlawfully deprived thereof. In these
cases, the possessor cannot retain the thing as against the owner, who may recover it without
paying any indemnity, except when the possessor acquired it in a public sale. [Public sale is
one where there has been public notice of the sale, in which anybody has a right to bid and
offer to buy.]

As a general rule, prescription does not run in favor of one who holds in trust for others.

To every possessor in good faith there comes a time when he is considered a possessor in bad
faith; when the owner or a possessor with a better right comes along, when he becomes aware
that what he had taken for granted is at least doubtful, and when he hears the grounds in
support of the adverse contention, his good faith ceases.

The right of the owner to recover personal property acquired in good faith by another, is based
on his being dispossessed without his consent; hence, it cannot extend to property voluntarily
delivered by him to another who misappropriates or disposes of the thing through abuse of
confidence.

Actual possession though not founded upon claim of ownership is entitled to protection by the
law.

Effects of possession in concept of owner:


(1) The possession in concept of owner is converted into ownership by the lapse of time
necessary for prescription.
(2) The possessor can bring all actions necessary to protect his possession; availing
himself of any action which an owner can bring, except the accion reivindicatoria
which is substituted by the accion publiciana.
(3) He can ask for the inscription of his possession in the registry of property.
(4) Upon recovering possession from one who has unlawfully deprived him of it, he can
demand fruits and damages.
(5) He can do on the thing possessed everything that the law authorizes an owner to do;
he can exercise the right of pre-emption, and is entitled to the indemnity in case of
expropriation.

Jillian Gandingco | 8

Only actual possessor may bring action of forcible entry.

Administrator has right to the possession of all properties of the estate so long as it is
necessary to pay debts.

Symbolic tradition is equivalent to physical possession.

Possession of a part is constructive possession of the whole.

Prior physical possession of real property is necessary to make forcible entry and detainer
action prosper.

Possession in good faith entitles possessor to reimbursement of his necessary and useful
expenses, and fruits.

Possessor in good faith is not liable for payment of damages. Possession of anothers property
is presumed to be in good faith; burden of proof is on party alleging bad faith.

Actual possession exists where the thing is in the immediate occupancy of the party.

Possession of chattel in good faith is equivalent to a title.

Constructive possession is that which exists in contemplation of law, without actual personal
occupation.

Possession in good faith of improvements has right to buy land on which improvements were
built.

Possession in the occupation of anything with the intention of exercising the rights of ownership
in respect to it. Natural possession implies mere physical contact with the thing, apart from all
attempted exercise of rights with respect to it. The lower degree of control was known to the
latter civilians as detentio.

In order to complete a possession, two things are required: that there be an occupancy,
apprehension, or taking; that the taking be with an intent to possess; hence, persons who have
no legal wills, as children and idiots, cannot possess or acquire possession. But an infant of
sufficient understanding may lawfully acquire the possession of a thing.

COMMON LAW - POSSESSION

The detention or enjoyment of a thing which a man has holds or exercises by himself, or by
another who keeps or exercises it in his name.

Possession in good faith is not a good defense in accion reinvindicatoria.

Possession in good faith is entitled to reimbursement for improvements.

Possessor in bad faith loses improvements and is liable for fruits gathered; not entitled to
reimbursement for useful expenses.
Abandonment of property arises only when hope of recovery and intent to return are given up.

Possession of co-owner is generally not adverse against his co-owners.

Proof of the possession of property is commonly said to be prima facie evidence of title to it.

Possession of co-owner by mere tolerance does not give rise to acquisitive prescription.

Possession not in the concept of an owner is not adverse possession.

Rights of ownership are substantially the same as those incident to possession. The owner is
allowed to exclude all and is accountable to no one; the possession is allowed to exclude all but
one and is accountable to no one but him.

Actual possession of entire land is not necessary; constructive possession is enough.

Legal possession does not necessarily coincide either with actual physical control or with the
right to possess, and it need not have a rightful origin.

Tenants possession cannot be the basis of acquisitive prescription.

Possession of stolen goods must explain such possession.

Possession may be interrupted either naturally or civilly.

Private deed of sale without possession cannot be a basis of acquisition of ownership.

A very high degree of legal protection is accorded to one lawfully in possession and, whether its
origin is rightful or not, a stranger cannot be heard in opposition to it. The true owner may be
heard, but an intruder never. It is said, however, that the bold proposition that possession is a
good title against a wrongdoer is inaccurate, if stated entirely without a qualification, and that
the true limits of the bare possessors right to recover damages for interference with his
possession are:

Right to recover possession of registered land does not prescribe.

Person in possession of a property is presumed to be the owner and he is not required to


present his title.
In actions for recovery of possession, plaintiff must rely upon strength of his title and not upon
weakness of defendants claim.

Possession protected by law is not merely personal possession but also predecessors
possession.

(1)

(2)

(3)

If the defendant cannot show who the true owner is, the bare possessor may recover
the same measure of damages as if he were the true owner, whether he is liable
even to the owner or not;
Where the true owner is shown, the bare possessor cannot recover the value of the
goods taken or the diminution in their value, or for injury, unless he is liable even to
the owner;
Whether the true owner be shown or not, the possessor may recover damages for
the taking or trespass, nominal or substantial, as the taking is or is not attended with
aggravation.
Jillian Gandingco | 9


(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(21)
(22)
(23)
(24)
(25)
(26)
(27)
(28)
(29)
(30)
(31)
(32)
(33)
(34)
(35)
(36)
(37)
(38)
(39)

Arriola v Dela Serna


Santiago v Cruz
Cagoan v Cagaoan
Cuaycong v Benedicto
Masallo v Cesar
Yu v De Lara
Cruz v Pahati
U.S. v Sotelo
People v Alajano
Repide v Astaur
Ramos v Dir. Of Lands
Arendo Cruz v De Leon
Alo v Rocamora
Lim, et. al. v Velasco
Leung Yee v Strong Machinery Co.
Kasilag v Rogue
Roman Catholic Apostolic Church v Certain Municipalities
Cea v Villanueva
Tacas v Tobon
Maalac v Olegario
Santiago v Cruz
Masallo v Cesar
Devesa v Arber
Pasafox v Madamba
Sotto v Enage
Tuason and Sampedro, Inc. v Germina
Rebullida v Bustamante
Varela v Finnick
Arenas v Raymundo
Tagatas v Jimenez
U.S. v Soriano
Del Rosario v Lucena
Varela v Matute
Bishop of Cebu v Mangaron
Caballero v Abellana
Rodriguez v Tao
U.S. v Rey

Comprehensive principals ..
(1) Possession in fact is such actual exclusive control as the nature of the thing admits.
(2) Possession in law, the right which is protected by possessory remedies, generally
follows possession in fact, but does not necessarily cease when possession in fact
ceases.
(3) Possession in law continues until determined in some way which the law definitely
recognizes, beyond the mere absence or failure of a continuing intent to possess.
(4) Possession in law is a commencement of title; in other words the possessor can deal
with the thing as an owner against all persons not having a better title and this
protection extends to persons deriving title from him in good faith.
(5) When possession in fact is so contested that no one can be said to have actual
effective control, possession in law follows the better title.

Failure to take possession is sometimes considered a badge of fraud, in the transfer of


personal property.

Possession of real property will be presumed to accompany ownership until the contrary is
proved; and constructive possession consequent upon legal ownership is sufficient as against
mere trespassers. Long continued possession and use of real property creates a presumption
of lawful origin.

When it is not based on a legal right, but secured by violence and maintained with force and
arms, possession cannot furnish the basis of a right.

Possession applies properly only to corporeal things, movables and immovables. The
possession of incorporeal rights, such as servitude sand other rights of that nature, is only a
quasi-possession, and is exercised by a species of possession of which these rights are
susceptible.

Possession is lost with or without the consent of the possessor. It is lost with his consent
when he transfers this possession to another with the intention to divest himself of it; when he
does some act which manifests his intention of abandoning possession. A possessor of an
estate loses possession against his consent when another expels him from it, whether by
force in driving him away, or by usurping possession during his absence, and preventing him
from re-entering; when the possessor of an estate allows it to be usurped and held for a year,
without during that time having done any act of possession or interfered with the usurpers
possession.

Civil possession exists when a person ceases to reside in a home or on the land which he
occupied, or to detain the movable which he possessed, but without intending to abandon the
possession. It is the detention of a thing by virtue of a just tile and under the conviction or
possessing as owner.

ANIMALS

Any animate being which is not human, endowed with the power of voluntary motion.

Domitae ... are those which have been tamed by man; domestic.

Natural possession is that by which a man detains a thing corporeal; as by occupying a


house, cultivating ground, or retaining a movable in his possession. Natural possession is also
defined to be the corporeal detention of a thing which we possess as belonging to us,
without any title to that possession, or with a title which is void.

Ferae naturae are those which still retain their wild nature.

A man may have an absolute property in animals of a domestic nature; but not so in animals
ferae naturae, which belong to him only while in his possession. Yet animals which are
sometimes ferae naturae may be tamed so as to become subjects of property.

Animals ferae naturae were considered by the Roman Law as belonging in common to all the
citizens of the State; and by the common law the property in game was based on common

CASES TO READ POSSESSION - PHILIPPINES


(1) Atun v Nuez
(2) Barcelona v Barcelona

Jillian Gandingco | 10


ownership and subject to governmental authority. One may have the privilege of hunting wild
animals to the exclusion of other persons, but only by grant of the king or of his officers or by
prescription. In the U.S.A., the ownership of such animals is vested in the State, not as
proprietor, but in its sovereign capacity, as representing the people and for their benefit. It alone
has power to control the killing and ownership of wild game. Animals wild by nature are
subjects of ownership while living only when in the land of the person claiming them.

Bees are ferae naturae; but when hived or reclaimed one way have a qualified property in
them, because they have a local habitation, more often in a tree than elsewhere, and while
they may be said to be within control, because the tree may at any time be felled. But the right
to cut it down is in the owner of the soil, and therefore, such property as the bees are
susceptible of is in him also. The mere finder of them on the land of another acquires no title to
the tree or the bees.
The common law recognized a property in dogs. The owner may recover for its wrongful injury;
or its conversion; or its unlawful killing;
Dogs are not considered as being upon the same plane with horses, cattle, sheep, and other
domesticated animals, but rather in the category of cats, monkeys, parrots, singing birds, etc.,
kept for pleasure. They are peculiar in that they differ among themselves more widely than any
other class of animals, and can hardly be said to have a characteristic common to the entire
race. They stand between animals ferae naturae, in which, until killed, there is no property, and
domestic animals, in which the right of property is complete.
The owner of any animal, tame or wild, is liable for the exercise of such dangerous tendencies
as generally belong to its nature, but not of any not in accordance with its nature, unless the
owner or keeper knew, or ought to have known, of the existence of such dangerous tendency.
To recover for damages inflicted by a ferocious dog, it is not necessary actually to prove that it
has bitten a person before.
The owner of a mischievous animal, known to him to be so, is responsible, when he permits
him to go at large, for the damage he may do; it is said that though it may be, in a certain
sense, that the action for injury by vicious animals is based upon negligence, such negligence
consists not in the manner of keeping the animal, but in the fact that he is ferocious and the
owner knows it. The negligence consists in keeping such an animal.

One knowingly harboring a vicious and dangerous dog is liable for damages sustained by
others from its bite. Keeping a dog known to be savage stands on the same footing as keeping
a wild beast. It is enough if he occasionally attacks human beings without provocation.

ONE BITE RULE. The mere fact of the attack does not raise a presumption that the dog was
vicious, but it can be established by proof that on previous occasions it had attacked people
without provocation; and one who has long harbored a vicious dog is presumed to know its
propensities.

Where one kept dogs of the same family and appearance, a person bitten by one of them is not
required to prove which one, nor to prove that previous attacks on others were made by the
same dog.

It has been held that when wild animals are kept for a purpose recognized as not censurable,
all that can be demanded of their keeper is that he shall take that superior precaution to prevent
their doing mischief which their propensities in that direction justly demand of him. One who

knowingly, voluntarily, and unnecessarily places himself within the reach of a ferocious animal
which is chained up cannot recover from injuries received. An injunction will lie against keeping
a vicious dog without appropriate restraint; it is a nuisance.

It is the duty of the owner of domestic animals to keep them upon his own premises. It is the
nature of cattle and other animals to stray and to do damage, and the owner is bound to keep
them from straying at his own peril. The common law doctrine is that the owner of the cattle
must fence them in.

The keeping of livestock is usually under police regulation.

USUFRUCT

The right of enjoying a thing the property of which is vested in another, and to draw from the
same all the profit, utility, and advantage which it may produce, provided it be without altering
the substance of the thing.

Perfect usufruct is of things which the usufructuary can enjoy without altering the substance,
though their substance may be diminished or deteriorated naturally by time or by the use to
which they are applied.

Imperfect or quasi usufruct is of things which would be useless to the usufructuary if he did
not consume and expend them or change the substance of them [Alteration may take place]

Usufructuary ... one who has the right and enjoyment of a usufruct.

Duties of the usufructuary:


(1) To make an inventory of the things subject to the usufruct, in the presence of those
having an interest in them;
(2) To give security for their restitution when the usufruct shall be at an end;
(3) To take good care of the things subject to the usufruct;
(4) To pay all taxes and claims which arise while the thing is in his possession as a
ground rent;
(5) To keep the thing in repair at his own expense.

Philippine cases:

Stock dividend belongs to usufructuary of shares of stock;

Death of usufructuary terminates usufruct;

The right of usufruct of a town over its municipal waters is not subject to execution;

Usufruct cannot be proven by parol evidence;

By express provision of law, the usufructuary does not have the right to reimbursement for
the improvements he may have introduced to the property;

A usufruct may be constituted for a specified term and under such conditions as the
parties may deem convenient subject to the legal provisions on usufruct;

A usufructuary has the duty to protect the owners interestsa usufruct given a right to
enjoy the property of another with the obligation of preserving its form and substance,
unless the title constituting it or the law otherwise provides;

In a usufruct, only the jus utendi and jus fruendi over the property is transferred to the
usufructuarythe owner of the property maintains the jus disponendi or the power to
alienate, encumber, transform, and even destroy the same.

The usufruct of a widow may be transferred, assigned or otherwise disposed of by her as


she may please, take away other hereditary property, and hence, an interest in real
property which can be sold upon execution.
Jillian Gandingco | 11


The manner of terminating the right of usufruct is primarily determined by the stipulation of
the parties such as the happening of resolutory condition.

Usufructuary may remove improvements on property subject to usufruct as provided for in


Art. 579.
EASEMENT

A right in the owner of one parcel of land, by reason of such ownership, to use the land of
another for a special purpose not inconsistent with a general property in the owner.

(5)

A privilege which the owner of one adjacent tenement has of another, existing in respect of their
several tenements, by which that owner against whose tenement the privilege exists is obliged
to suffer or not to do something on or in regard to his own land for the advantage of him in
whose land the privilege exists.
Although the terms are sometimes used as if convertible, properly speaking easement refers
to the right enjoyed by one and servitude the burden imposed upon the other.
An interest in land created by grant or agreement, express or implied, which confers a right
upon the owner thereof to some profit, benefit, dominion, or lawful use out of or over the estate
of another.

In the civil law, the land against which the privilege exists is called the servient tenement; its
proprietor, the servient owner; he in whose favor it exists, the dominant owner; his land, the
dominant tenement. And, as these rights are not personal and do not change with the persons
who may own the respective estates, it is very common to personify the estates as themselves
owning or enjoying the easements.

Natural rights do not depend upon grant or prescription, but are really incident to the
property in land. Such are the right of lateral support to land by adjacent land, the right to the
flow of water, and the right to air free from noxious smells. These rights, of course, exist without
grant.

The distinction between an ordinary easement and an easement in gross is that in the
former there is and in the latter there is not a dominant tenement. [NOTE: There is no such
thing in the civil law or in England as an easement in gross an easement not connected with a
dominant tenement.
Continuous easements are those of which the enjoyment is, or may be, continual, without the
necessity of any actual interference by man; discontinuous easements are those, the
enjoyment of which can be had only by the interference of man, as rights of way, or a right to
draw water.

There must be two tenements owned by distinct proprietors:


(1) The dominant, to which the privilege is attached; and,
(2) The servient, upon which it is imposed.

The essential qualities of easements may be distinguished:


(1) Easements are incorporeal;
(2) They are imposed upon corporeal property;
(3) They confer no right to a participation in the profits arising from it;
(4) They must be imposed for the benefit of corporeal or incorporeal hereditaments,
and are usually imposed for the benefit of corporeal.

(6)

There must be two distinct tenements the dominant, to which the right belongs;
and the servient, upon which the obligation is imposed;
By the civil law, it is also required the cause must be perpetual.

Easements impose no duty on the servient owner, except not to change his tenement to the
prejudice or destruction of the privilege.

Easements are as various as the exigencies of domestic convenience or the purposes to


which buildings and lands may be applied.

An easement of private way over land must have a particular, definite line.

A negative easement does not admit of possession; and, by the civil law, it cannot be acquired
by prescription, and can only be proved by grant. Use, therefore, is not essential to its
existence.

Easements are extinguished: (CRAM-N)


o
By release;
o
By merger, when the two tenements in respect of which they exist are united under
the same title and to the same person;
o
By necessity, or abandonment, as by a license to the servient owner to do some act
inconsistent with its existence;
o
By cessation of enjoyment, when acquired by prescription, -- the non-user being
evidence of a release where the abandonment has continued at least as long as the
user from which the right arose.

An easement acquired by grant cannot be lost by mere non-user, though it may be by non-user
coupled with an intention of abandonment.

The destruction of an easement of a private right of way for public purposes is a taking of the
property of the dominant owner for which he must be compensated.

Prescription does not run against the exercise of a servitude in favor of one who resisted and
prevented its exercise.

An easement in favor of land held in common will be extinguished by a partition, if nothing is


said about it.

Remedies ... interference with a right of easement:


o
Action for trespass
o
Action for consequential damages
o
Infringement
o
Injunction

EASEMENT: CASES

Fishpond owners may build canal through servient estates to draw water from river ..

Fishpond owner has right to draw water from the river ...

Read:
(1)
(2)

Gonzales v Banzon, 51 Phil. 15


Gonzales v De Dias, 88 Phil. 770
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(3)
(4)

Unson v Lacson, No. L-7909, Jan. 12, 1957


Araneta v Hashin, No. L-10082, Nov. 19, 1957; 54 O.G. 4967

(3)
(4)

Creation of servitudes does not involve transfer of ownership of servient estates.


Actual notice of existence of right of way is as binding as registration ..
Owner of dominant estate has obligation to make necessary works to conserve his easement.
Easement of waters does not require that higher and lower estates be contiguous ..
Legal easement need not be annotated on certificate of title..
Right of way is not acquired by prescription.
Easement should be exercised with least prejudice to servient estate..
Right of way is not voluntary but compulsory ..
Damages are recoverable for breach of easement ..
Dam impeding flow of water from higher and lower estates may be demolished ..
Public use may not be imposed on private property without proper expropriation and just
compensation ..
Acquisition of negative easement requires execution of notarial instrument ..
Easement is extinguished upon registration of servient estate if it is not annotated on the title ..
Apparent sign of easement under Article 624 [NCC] is equivalent to title when estate is
alienated.
Overhanging eaves may be removed ..
Owner of easement of light and view does not have to live in her house to enforce it ..
Open spaces in subdivisions are reserved for public use and are beyond the commerce of man
..
An owner, by virtue of his surface right, may make excavations on his land, but his right is
subject to the limitation that he shall not deprive any adjacent land or building of sufficient
lateral or subjacent support ..
To be entitled to an easement of right of way, the following requisites should be met:
(1) The dominant estate is surrounded by other immovables and has no adequate outlet
to a public highway;
(2) There is payment of proper indemnity;
(3) The isolation is not due to the acts of the proprietor of the dominant estate; and,
(4) 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 ..
The convenience of the dominant estate has never been the gauge for the grant of compulsory
right of way; to be sure, 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 when the said outlet, for one reason or another, be inconvenient, the need to
open up another servitude is entirely unjustified ..
Easement of right of way falls within the purview of the power of eminent domain .. it is
discontinuous and, as such, cannot be acquired by prescription .. should the 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 ..
The owner of the dominant estate cannot violate any of the following restrictions on its right on
the servient estate, to wit:
(1) It can only exercise rights necessary for the use of the easement;
(2) It cannot use the easement except for the benefit of the immovable originally
contemplated;

(5)
(6)
(7)

The opening of an adequate outlet to a highway cannot extinguish only legal or compulsory
easements, not voluntary easements; the fact that an easement by grant may have also
qualified as an easement of necessity does not detract from its permanency as a property right,
which survives the termination of the necessity ..
It is settled that the registration of the dominant estate under the Torrens system without the
annotation of the voluntary easement in its form does not extinguish the easement it is the
registration of the servient estate as free, that is, without an annotation of the voluntary
easement, which extinguishes the easement ..
When the owner of two properties alienates one of them and an apparent sign of easement
exists between the two estates, entitlement to it continues, unless there is a contrary
agreement, or the indication that the easement exists is removed before the execution of the
deed ..
o

It cannot exercise the easement in any other manner than that previously
established;
It cannot construct anything on it which is not necessary for the use and preservation
of the easement;
It cannot alter or make the easement more burdensome;
It must notify the servient estate owner of its intention to make necessary works on
the servient estate; and,
It should choose the most convenient time and manner to build said works so as to
cause the least inconvenience to the owner of the servient estate ..

Read: D. M. O. v Legaspi Towers 300, Inc., 593 SCRA 382

The right-of-way easement resulting in a restriction of limitation on property rights over the land
traversed by transmission lines falls within the ambit of the term expropriation.
A document stipulating a voluntary easement must be recorded in the Registry of Property in
order not to prejudice third parties.

NUISANCE

That class of wrongs that arises from the unreasonable, unwarrantable, or unlawful use by a
person of his own property, either real or personal, or from his own improper, indecent, or
unlawful personal conduct, working an obstruction of or to the right of another, or of the public,
and producing such material annoyance, inconvenience, discomfort, or hurt that the law will
presume a consequent damage.

A private nuisance is anything done to the hurt or annoyance of the lands, tenements, or
hereditaments of another. It produces damage to but one or a few persons, and cannot be said
to be public.

A public or common nuisance is such inconvenience or troublesome offense as annoys the


whole community in general and not merely some particular person. It produces no special
injury to one more than another of the people.

A mixed nuisance is one which, while producing injury to the public at large, does some
special damage to some individual or class of individuals.

It is difficult to say what degree of annoyance constitutes a nuisance. If a thing is calculated to


interfere with the comfortable enjoyment of a mans house, it is a nuisance. In relation to
offensive trades, it seems that when such a trade renders the enjoyment of life and property
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uncomfortable, it is a nuisance. Every citizen holds his property subject to the implied obligation
that he will use it in such a way as not to prevent others from enjoying the use of their property.

A thing may be a nuisance in one place which is not so in another; therefore the situation or
locality of the nuisance must be considered.

To constitute a public nuisance, there must be such a number of persons annoyed that the
offense can no longer be considered a private nuisance.

A person is not liable in damages for a nuisance erected on land by his grantor until after a
request to abate.

The remedies against a nuisance are by an action for the damage done, by the owner, in the
case of a private nuisance, or by any party suffering special damage in the case of a public
nuisance; by abatement by the owner, when the nuisance is private; by injunction, which is the
most usual and efficacious remedy; or by indictment for a public nuisance.

Every continuance of a nuisance or recurrence of the injury is an additional nuisance forming in


itself the subject-matter of a new action.

Equity will consider the comparative injury which will result from the granting or refusing of an
injunction, and it will not be granted where it will be inequitable and oppressive, as where it
would case a large loss to defendant and others, while the injury, if it is refused, would be
comparatively slight and can be compensated by damages.

Attractive nuisance: Read Hidalgo Enterprises, Inc. v Balandan, 91 Phil. 488

But at most a nuisance per accidens, its summary abatement without judicial intervention is
unwarranted.

A private individual cannot abate a nuisance in a public highway, unless it does him special
injury, and then only so far as is necessary to the exercise of his right of passing along the
highway. He may abate a public nuisance only when it is also a private nuisance as to him, or
incommodes him more than the general public.

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