X. EASEMENTS OR SERVITUDES
 ** the easement maybe established against any
A. Definition - it is an encumbrance imposed upon an
immovable for the benefit of a community or one or more
persons (personal easements) or for the benefit of another
immovable belonging to a different owner (real or predial
easement)
Easement distinguished from servitude
 Easement is the name used in common law countries;
servitude in civil law countries.
 An easement under common law is only one form of
servitude; servitude is broader.
 An easement under common law is always predial or
real; servitude refers either to predial/ real easement or
personal easement
** civil code provides that easement is equivalent to servitude.
Real easement art (613)
 an easement or servitude is an encumbrance imposed
upon an immovable for the benefit of another immovable
belonging to a different owner.
 The immovable in favor of which the easement is
established is called the dominant estate, that which subject
thereto is the servient estate.
immovable surrounding the dominant estate, and one which
has shortest distance and will cause the lease damage. In case
of conflict, least damage will prevail.
Personal easement (art. 614)
 servitudes established for the benefit of a community or
of one or more persons to whom the encumbered estate does
not belong
Personal easement distinguished from real easement
 Cannot be alienated; generally can be alienated
 The use is specifically designated; the use has a broader
scope, and in general comprehends all possible uses of the
thing
B. Essential features of easements:
 It is a real right
 It is a right enjoyed over another property. It cannot exist
in one's own property.
 It is a right constituted over an immovable by nature
 (land and buildings), not over movables of other immovables
in art. 415.
 It limits the servient owner's right of ownership for the
benefit of the dominant estate. Being an abnormal limitation
of ownership, it cannot be presumed.
 It creates a relation between tenements.
 It cannot consist in requiring the owner of the servient
estate to do an act. Unless the act is an accessory to a predial
servitude.
 Generally, it consists in the owner of the dominant estate
demanding the owner of the servient estate refrain from
doing something or that the latter permit that something be
done over the servient property but not in the right to
demand that the owner of the servient estate obligation to a
predial servitude.
 It is inherent or inseparable from estate to which they
actively and passively belong (art. 617)
 consequences of inseparability:
(a) easements cannot be sold or donated or mortgaged
independently of the real property to which they may be
attached.
(b) registration of the dominant estate under the torrens
system without the registration of the voluntary easement in its
favor, does not extinguish the easement.
(c) but registration of the servient estate without registration
of the easement burdening it, extinguishes the voluntary
easement.
(d) actual knowledge of third persons is equivalent to
registration, if they have actual knowledge of the existence of
the easement, they are bound even though there is no
registration.
** a right of way may be either a legal easement (if there is no
other adequate outlet to a highway, a neighbors land may be
subject to legal easement) or voluntary easement (even if there is
already an adequate outlet, a person may desire to cross his
neighbor's land)
(e) registration of the servient estate without including the
voluntary easement extinguishes the said easement, except:
(1) If the grantee or transferee of the servient estate
actually knew of the existence of the unrecorded easement
(2) There is an understanding or stipulation that the
easement would continue to exist.
 It is intransmissible, it cannot be alienated separately
from the tenement affected or benefited.
 It is indivisible (art. 618)
 if the servient estate is divided into two or more persons -
the easement is not modified, each of them must bear it on
the part which corresponds to him.
 If the dominant estate is divided between two or more
persons - each of them may use the easement in its entirety,
 without changing the place of its use, or making it more
burdensome in any other way.
 It has permanence. Once it attaches, whether used or not,
it continues and may be used at anytime.
C. Classifications of servitudes
 As to recipient of benefits:
 Real - for the benefit of another immovable belonging to
a different owner. Ex. Easement of water where lower estate
are obliged to allow the flow of water descending from the
higher estate.
 Personal - for the benefit of one or more persons or of a
community. Ex. Easement of right of way for the passage of
livestock
 As to source of origin:
 legal easement
 whether for public use or for the interest of private
persons
 Constituted by law
 voluntary
 constituted by a will or agreement of the parties or by a
testator
 As to its exercise (art. 615)
 apparent
 those made known and continually kept in view by
external signs that reveal the use and enjoyment of the same.
Ex. Right of way when there is an alley or a permanent path;
window to a party wall visible to both owners.
 Note or mark need not be seen but susceptible of being
seen.
 Easement of aqueduct is considered always apparent
whether or not it can be seen.
 non-apparent easement
 they show no external indication of their existence. Ex.
Easement of intermediate distances; easement of lateral or
subjacent support.
 As indication of its existence (art. 615)
  Positive
 the owner of the servient estate is obliged to allow
something to be done on his property or to do it himself. Ex.
Easement of light and view in a party wall; right of way;
duty to cut off tree branches extending over the neighbor's
estate.
 negative
 the owner of the servient estate is prohibited to do
something which he could lawfully do where it not for the
existence of the easement. Ex. Easement of light and view
when the window or opening is on one's own wall or estate
D. General rules relating to servitudes:
 No one can have a servitude over his own property
 A servitude cannot consist in doing
 There cannot be a servitude over another servitude
 A servitude must be exercised civiliter, in a way least
burdensome to the owner of the land
 A servitude must have a perpetual cause.
E. Modes of acquiring easements
 By title - juridical act which gives rise to the servitude.
Ex. Law, donations, contracts or wills
 if easement has been acquired but no proof of the
existence of easement is available, and easement is one that
cannot be acquired by prescription, then:
 may be cured by deed of recognition by owner of the
servient estate.
 By final judgment
 Existence of an apparent sign considered a title.
 By prescription
F. Rights and obligations of owners of dominant and servient
estates
1.) Rights of owner of dominant estate: art. 625/626
 to use the easement and exercise all rights necessary for
its use.
 necessary rights includes: repair, maintenance, accessory
easements. Ex. Right of way if the easement is for the
drawing of water.
 Termination of the principal easement necessarily
terminates the secondary or accessory easement.
 To prejudice third persons, voluntary easement must be
 registered.
 To do at his own expense, all necessary works for the use
and preservation of the easement. Art. 627
 But without altering it or rendering it more burdensome.
 He must notify the owner.
 He must choose the most convenient time and manner so
as to cause the least inconvenience to the owner of the
servient estate.
2.) Obligations of the owner of the dominant estate:
 to use the tenement for the benefit of immovable and in
the manner originally established. Art. 626
 To notify the owner of the servient estate before making
any repairs and to make repairs in a manner least
inconvenient to servient estate. Art. 627
 Not to alter easement or render it more burdensome art.
627
 To contribute to the expenses of works necessary for use
and preservation of servitude, if there are several dominant
estate unless he renounces his interest. Art. 628
3.) rights of the owner of the servient estate
 to retain ownership and use of his property. Art. 630
 To change the place and manner of use of the easement
4.) obligations of the owner of the servient estate
 not to impair the use of the easement. Art. 629 par 1
 To contribute proportionately to expenses if he uses the
easement. Art. 628 par. 2
G. MODES OF EXTINGUISHMENT OF EASEMENTS
1.) Merger - must be absolute, perfect and definite and not
merely temporary.
 in one person of the ownership of the dominant and the
servient estates.
 If only a portion is merged, easement continues
 With to repurchase not allowed for it is only temporary.
 Easement cannot be revived by the sale of the property to
a different owner when prior to that the easement is already
merged in one person either the owner dominant or servient
estate.
2.) non-user for 10 years
 refers to an easement that has once been used because
cannot discontinue using what once has never used.
 computation of the period:
 a.) discontinuous easements (they are used at intervals
depending upon the acts of man. Ex. Right of way); counted
from the day they ceased to be used.
b.) continuous easements (their use is incessant or may be
incessant, without the intervention of any act of man. Ex.
Easement of drainage); counted from the day an act adverse to
the exercise took place.
 the use by a co-owner of the dominant estate bars
prescription with respect to the others. Art. 633 reason: the
easement is indivisible. It applies so long as the co-
ownership exists.
 Servitudes not yet exercised cannot be extinguished by
non-user.
3.) extinguishment by impossibility of use
 this merely suspends the easement, unless
extinguishment is caused by the necessary period for non-
user since possibility of use revives the easement.
4.) expiration of the terms or fulfillment of resolutory condition
 ex. An easement was agreed to last till the owner
becomes a lawyer.
5.) renunciation of the owner of the dominant estate
 must be express, clear, specific, clear, express, otherwise
it might be confused with non-user
6.) redemption agreed upon between the owners
 this is voluntary redemption, existing because of an
express stipulation.
 The stipulation may provide conditions under which the
easement would be extinguished.
7.) other causes not mentioned in art. 631:
 annulment or rescission of the title constituting the
easement.
 Termination of the right of the grantor.
 Abandonment of the servient estate.
 Eminent domain
 Special cause for the extinction of legal rights of way: if
right of way is no longer necessary.
H. LEGAL EASEMENTS
1.) Law governing legal easements

 for public easements:

a.) special laws and regulation relating thereto - water code,

forestry reform code

b.) chapter 2, title VII, Book 2, NCC

 for private legal easement:

a.) by agreement of the interested parties whenever the law

does not prohibit

b.) by provisions of chapter 2, title 7, book 2, NCC